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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

CARL HALL, 

 

Petitioner, Case Number 09-CV-10444 

 Honorable Thomas L. Ludington 

v. 

MILLICENT WARREN, 

Respondent. 

________________________________________/ 

OPINION AND ORDER DENYING PETITION FOR WRIT 

OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE 

OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS 

Petitioner Carl Hall, presently confined at the Thumb Correctional Facility in Lapeer, 

Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, 

challenging his convictions of assault with intent to commit great bodily harm, Michigan 

Compiled Laws § 750.84, and possession of a firearm during the commission of a felony, 

Michigan Compiled Laws § 750.227b. Following a bench trial in the Wayne Circuit Court, 

Petitioner was found guilty of these crimes and was sentenced as a habitual offender, fourth 

offense, to life in prison for the assault conviction and a consecutive five-year term for the 

firearm conviction. 

The petition raises five claims: (1) a panel of the Michigan Court of Appeals violated the 

law-of-the-case doctrine when it affirmed Petitioner’s life sentence after an earlier panel had 

reversed it; (2) the trial court erred in concluding that the evidence was sufficient to support 

Petitioner’s assault conviction; (3) the trial court erred in considering prior-bad-acts evidence to 

determine that Petitioner acted with the specific intent to cause great bodily harm; (4) the 

Petitioner’s counsel was ineffective during trial; and (5) the Petitioner’s counsel was ineffective 

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during the direct appeal. Petitioner’s first claim is not based on clearly established Supreme 

Court law, as required by 28 U.S.C. § 2254(d). His remaining claims are procedurally defaulted 

as Petitioner did not raise them in the state courts during his direct appeal. Accordingly, the 

petition will be denied. 

I 

Petitioner was originally charged with assault with intent to commit murder and felony 

firearm. The victim, Bruce Perfect, parked his tow truck in front of “The Omens” motorcycle 

club in Detroit on the morning of July 19, 2001. As he was standing next to his truck, Perfect 

saw Petitioner walk around the corner of a building carrying a long gun. Petitioner said 

something along the lines of “I’m going to kill everyone.” Perfect glanced about and saw that he 

was the only person in the vicinity . Petitioner then fired one shot in the air and ten more shots in 

Perfect’s direction. None of the shots hit Perfect. Petitioner then fled on foot. Police officers 

gave chase, caught Petitioner, placed him under arrest, and recovered the gun. 

After a bench trial, the trial court convicted Petitioner of the lesser offense of assault with 

intent to commit great bodily harm and possession of a firearm during the commission of a 

felony. The trial court departed from the recommended sentencing guideline range and 

sentenced Petitioner as a third-time habitual felony offender to life imprisonment for the assault 

conviction and a consecutive five-year term for the firearm conviction. 

Petitioner filed an appeal by right, challenging only his sentence on the ground that the 

trial court did not have substantial and compelling reasons to depart from the guidelines. The 

Michigan Court of Appeals agreed, finding that the trial court erred in finding that the guidelines 

did not apply to habitual offenders and that the guidelines factored in the reason given for the 

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departure: Petitioner’s prior convictions. People v. Hall, No. 242369, 2003 Mich. App. LEXIS 

3260 (Mich. Ct. App. Dec. 16, 2003). 

On remand, the trial court held a new sentencing hearing. Once again, the trial court 

sentenced Petitioner to life imprisonment. The trial court reasoned that while the guidelines took 

into account the number of prior offenses, they did not take into account that Petitioner’s prior 

offenses involved firearms. Petitioner again appealed. The Michigan Court of Appeals affirmed 

the sentence. The court concluded that the trial court could properly consider the nature of 

Petitioner’s prior offenses as a reason for departing from the guidelines, writing: 

[A]s the trial court correctly noted, [the guideline] variables did not account for 

the objective and verifiable fact that defendant had repeatedly engaged in 

assaultive offenses with firearms, and had done so in this case after being given 

an opportunity to reform his conduct. The trial court was entitled to find that the 

nature of defendant’s prior convictions was not given adequate weight in the 

calculation of the guidelines. Defendant’s history of committing assaultive 

offenses with firearms can be said to be objective and verifiable, to be a fact that 

irresistibly attracted the attention of the trial court, and to be a fact that was of 

considerable worth in deciding an appropriate sentence for a fourth habitual 

offender. The departure from the guidelines, while extensive, was authorized by 

statute and was not outside the range of principled outcomes under the 

circumstances. 

People v. Hall, No. 254615, 2005 Mich. App. LEXIS 2802, *6-7 (Mich. Ct. App. Nov. 15, 2005) 

(internal citations omitted). Petitioner appealed to the Michigan Supreme Court. His application 

for leave to appeal was denied. People v. Hall, 477 Mich. 877 (2006). 

Petitioner then returned to the trial court and filed a motion for relief from judgment 

pursuant to Michigan Court Rule 6.500 et seq. In his motion, Petitioner raised four claims. First, 

Petitioner argued, insufficient evidence was presented at trial to prove beyond a reasonable doubt 

that Petitioner intended to cause great bodily harm. Second, he argued, the trial court erred in 

considering prior-bad-acts evidence to determine that Petitioner intended to cause great bodily 

harm. Third, Petitioner argued, he was denied the effective assistance of appellate counsel for 

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failing to raise these claims during direct appeal. And fourth, he argued, he was denied the 

effective assistance of trial counsel when counsel failed to argue for a new trial on the ground 

that the verdict was against the great weight of the evidence. 

The trial court denied the motion in an opinion and order dated June 13, 2007. The court 

explained, in part, “Defendant has not shown good cause under Michigan Court Rule 

6.508(D)(3) as to why the remaining issues presented in the motion were not previously raised 

on appeal. Furthermore, he had not proven actual prejudice.” Petitioner appealed this decision 

to the Michigan Court of Appeals, which denied his application for leave to appeal “for failure to 

demonstrate entitlement to relief under Michigan Court Rule 6.508(D).” People v. Hall, No. 

280442 (Mich. Ct. App. Dec. 27, 2007). Petitioner’s application for leave to appeal in the 

Michigan Supreme Court was denied with citation to the same court rule. People v. Hall, 482 

Mich. 892 (2008). 

Petitioner then filed the instant application for habeas relief, asserting the same claims he 

presented to the state courts during his direct appeal and post-conviction proceeding. 

II 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which governs 

this case, permits a federal court to issue the writ only if the state court decision on a federal 

issue “was contrary to, or involved an unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court,” or it amounted to “an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 

2254(d)(1)–(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state 

court does not justify issuance of the writ; rather, the state court’s application of federal law 

“must have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21(2003) 

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(quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, 

this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 

2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person 

in custody pursuant to the judgment of a State court, a determination of a factual issue made by a 

State court shall be presumed to be correct.”); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 

1996) (“The court gives complete deference to state court findings of historical fact unless they 

are clearly erroneous.”). 

A state court decision to be “contrary to” clearly established precedent, the Supreme 

Court explains, “if the state court applies a rule that contradicts the governing law set forth in our 

cases. . . . A state-court decision will also be contrary to this Court’s clearly established 

precedent if the state court confronts a set of facts that are materially indistinguishable from a 

decision of this Court and nevertheless arrives at a result different from [the Court’s] precedent.” 

Williams, 529 U.S. at 405-06. 

A state court decision involves an “unreasonable application” of clearly established 

precedent, the Court explains, “if the state court identifies the correct governing legal principle 

from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 

case.” Id. at 413. The Court cautions, however, that an unreasonable application of federal law 

is different from an incorrect application of federal law. Unanimously emphasizing the limited 

nature of this review in Harrington v. Richter, 131 S. Ct. 770 (2011), the Court reiterated that 

AEDPA imposes a highly deferential standard for evaluating state-court rulings, writing: “A 

state court’s determination that a [petitioner’s] claim lacks merit precludes habeas relief so long 

as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 

785–86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, habeas review 

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is “limited to the record that was before the state court.” Cullen v. Pinholster, 131 S. Ct. 1388, 

1398 (2011). 

III 

A 

Petitioner claims that the Michigan Court of Appeals violated the law-of-the-case 

doctrine when it affirmed the trial court’s reinstatement of a life sentence after an earlier panel 

had reversed it. Petitioner also asserts that the state appellate court’s order violates the collateral 

estoppel component of the Double Jeopardy Clause. 

A federal court may issue a writ of habeas corpus to release a state prisoner only on the 

ground that he is in custody in violation of the Constitution or laws or treaties of the United 

States. 28 U.S.C. § 2241(c), 2254(a); Mabry v. Johnson, 467 U.S. 504, 507 (1984). Conversely, 

“The federal habeas court does not act as an additional state appellate court to review a state 

court’s interpretation of its own law or procedure.” Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 

1987); see also Pulley v. Harris, 465 U.S. 37, 41 (1984). 

The law-of-the-case doctrine is a principle based on prudential concerns, not federal 

constitutional principles. Bowles v. Russell, 432 F.3d 668, 677 (6th Cir. 2005). Under Michigan 

law, the law-of-the-case doctrine simply dispenses with the need for a court to consider legal 

question already decided by a prior decision in a case. See Corp, & Sec. Comm’n v. Am. Motors 

Corp, 379 Mich 531 (1967). As a construct of state law, it therefore cannot form a basis for 

granting federal habeas relief. 

As for Petitioner’s reference to the collateral estoppel aspect of the Double Jeopardy 

Clause, this federal constitutional protection “means simply that when an issue of ultimate fact 

has once been determined by a valid and final judgment, that issue cannot again be litigated 

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between the same parties in any future lawsuit.” Schiro v. Farley, 510 U.S. 222, 232 (1994). In 

the context of criminal proceedings, collateral estoppel serves to bar a later prosecution where 

the government has lost an earlier prosecution involving the same facts. United States v. Dixon, 

509 U.S. 688, 705 (1993). The burden is on the defendant to prove by convincing and competent 

evidence that the fact sought to be foreclosed was necessarily determined by the jury against the 

government in the prior trial. Dowling v. United States, 493 U.S. 342, 350-51 (1990). In this 

case, Petitioner does not allege that an issue of ultimate fact has been determined in his favor by 

a trier of fact or that the government lost any earlier prosecution involving the same facts. The 

Michigan Court of Appeals did not “acquit” him of a life sentence. Rather, it determined that the 

trial court’s articulated reason for departing from the sentencing guidelines was in error and so 

remanded the case for resentencing. On remand, the trial court explained that the manner in 

which it considered Petitioner’s prior convictions had to do with the nature of those offenses 

rather than their mere existence in determining a prior record variable. The doctrine of collateral 

estoppel is inapplicable to this situation, and Petitioner is not entitled to habeas relief on this 

claim. 

B 

Petitioner’s remaining claims were not presented in his motion for relief from judgment 

and the appeal that followed. Respondent thus correctly notes that these claims are barred from 

review because Petitioner procedurally defaulted them in the state courts. 

A procedural default is “a critical failure to comply with state procedural law.” Trest v. 

Cain, 522 U.S. 87, 89 (1997). Such a default may occur if the state prisoner fails to present an 

issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 

(6th Cir. 1994), or if he does not comply with a state procedural rule that required him to have 

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done something at trial to preserve his claimed error for appellate review, e.g., make a 

contemporaneous objection or file a motion for a directed verdict. See Simpson v. Sparkman, 94 

F.3d 199, 202–03 (6th Cir. 1996). Procedural default will bar consideration of the merits of a 

federal claim if the state rule is actually enforced and is an adequate and independent ground for 

the state court’s decision. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Monzo v. Edwards, 

281 F.3d 568, 575–76 (6th Cir. 2002). 

Here, the Michigan Court of Appeals and the Michigan Supreme Court both denied relief 

in standard form orders on the grounds that the petitioner had failed to demonstrate entitlement 

to relief under Michigan Court Rule 6.508(D). The Sixth Circuit holds that because the form 

orders used by the Michigan appellate courts are unexplained, they are ambiguous as to whether 

they refer to a procedural default or the denial of right on the merits. Guilmette v. Howes, 624 

F.3d 286 (6th Cir. 2010). Therefore, the Court must “look through” the unexplained orders of 

the Michigan appellate courts to the decision of the state trial court to determine the basis for the 

denial of state post-conviction relief. 

The trial court, in contrast to the appellate courts, expressly relied on Petitioner’s 

procedural default, explaining: “Defendant has not shown good cause under Michigan Court 

Rule 6.508(D)(3) as to why the remaining issues presented in the motion were not previously 

raised on appeal. Furthermore, he had not proven actual prejudice.” As the state trial court 

explicitly and unambiguously relied on Rule 6.508(D)(3) in determining that the petitioner failed 

to establish good cause actual prejudice for failing to raise his claim on direct appeal, Petitioner’s 

post-conviction claims are procedurally defaulted. See Ivory v. Jackson, 509 F. 3d 284, 292–93 

(6th Cir. 2007); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). 

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Assuming the Petitioner had demonstrated good cause and prejudice to excuse his 

default, which he has not, he would nevertheless not be entitled to relief because the claims lack 

merit. 

Petitioner first claims that insufficient evidence of his intent to commit great bodily harm 

was presented at his trial. Essentially, Petitioner argues that if he had intended to harm the 

victim, he could not have possibly missed every shot. Claims challenging the sufficiency of the 

evidence are governed by the standard articulated in Jackson v. Virginia, 443 U.S. 307 (1979), 

pursuant to which it must be determined whether viewing the evidence in the light most 

favorable to the prosecution and according the benefit of all reasonable inferences to the 

prosecution, any rational trier of fact could have found Petitioner guilty beyond a reasonable 

doubt. See O’Hara v. Brigano, 499 F.3d 492, 499 (6th Cir. 2007) (citing Jackson, 443 U.S. at 

319-26). 

Under Michigan law, the two elements of the crime of assault to do great bodily harm 

less than murder are: “(1) an attempt or threat with force or violence to do corporal harm to 

another (an assault), and (2) an intent to do great bodily harm less than murder.” People v. 

Parcha, 227 Mich. App. 236, 239 (1997). The evidence showed that Petitioner announced his 

intent to “kill everyone,” then fired eleven shots with a long-gun. One shot was fired in the air. 

The other ten were fired in the direction of the only other person present, the victim. The 

formation of the intent to cause bodily harm does not depend on a defendant being a good shot. 

Thus, the evidence was sufficient to establish the disputed element of the offense. 

Next, Petitioner claims that the trial court erroneously considered his prior firearm 

offenses as evidence that he intended to injure the victim. This claim, however, is not cognizable 

on habeas review. See Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007). As no clearly 

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established Supreme Court precedent holds that a state violates due process rights by admitting 

propensity evidence in the form of “prior bad acts” evidence, the admission of “prior bad acts” or 

“other acts” evidence against Petitioner does not entitle him to habeas relief. See Bugh v. 

Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003). Petitioner is therefore not entitled to habeas relief 

on this claim. 

Petitioner next claims that his trial counsel was ineffective for failing to raise a greatweight-of-the-evidence claim in a motion for new trial. Effective assistance of counsel is 

guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685 (1984). To 

show that counsel’s representation was ineffective, Petitioner must satisfy two prongs: (1) 

inadequate performance by defense counsel, and (2) prejudice resulting from that deficient 

performance. The first prong requires a showing “that counsel’s representation fell below an 

objective standard of reasonableness.” Strickland, 466 U.S. at 688. The second prong requires 

Petitioner to show “that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A 

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 

Petitioner was not prejudiced by his counsel’s not raising a claim that the verdict was 

against the great weight of the evidence because there is not a reasonable probability the trial 

court would have granted a motion for new trial on this basis. As stated above, the evidence was 

legally sufficient to sustain the verdict. Moreover, the very argument raised by Petitioner — that 

he must not have intended to hurt the victim because he missed him with every shot — was 

raised by defense counsel in closing argument and specifically rejected by the trial court when it 

made its findings of fact. 

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Finally, Petitioner claims his appellate counsel was ineffective for failing to raise these 

claims in his appeal of right. Because the underlying claims are without merit, appellate counsel 

was not ineffective for failing to have raised them. See Siebert. v. Jackson, 205 F. Supp. 2d 727, 

735 (E.D. Mich. 2002). 

IV 

Before Petitioner may appeal this Court's decision, a certificate of appealability must 

issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may 

issue “only if the applicant has made a substantial showing of the denial of a constitutional 

right.” 28 U.S.C.§ 2253(c)(2). When a court rejects a habeas claim on the merits, the substantial 

showing threshold is met if the petitioner demonstrates that reasonable jurists would find the 

district court’s assessment of the constitutional claim debatable or wrong. See Slack v. 

McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating 

that . . . jurists could conclude the issues presented are adequate to deserve encouragement to 

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a 

district court may not conduct a full merits review, but must limit its examination to a threshold 

inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. Likewise, when a 

district court denies a habeas petition on procedural grounds without reaching the prisoner’s 

underlying constitutional claims, a certificate of appealability should issue, and an appeal of the 

district court’s order may be taken, if the petitioner shows that jurists of reason would find it 

debatable whether the petitioner states a valid claim of the denial of a constitutional right, and 

that jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling. Slack, 529 U.S. at 484. When a plain procedural bar is present and the district 

court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either 

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that the district court erred in dismissing the petition or that the petition should be allowed to 

proceed further. In such a circumstance, no appeal would be warranted. Id. “The district court 

must issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 

In this case, Petitioner has not made a substantial showing of the denial of a constitutional 

right. Accordingly, a certificate of appealability is not warranted in this case. Petitioner will 

also not be granted leave to proceed in forma pauperis on appeal, as any appeal would be 

frivolous. See Fed. R. App. P. 24(a). 

V 

Accordingly, it is ORDERED that the petition for writ of habeas corpus (ECF No. 1) is 

DENIED. 

It is further ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that permission to proceed in forma pauperis on appeal is 

DENIED. 

Dated: January 18, 2012 

 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney of record herein by electronic means and upon Carl 

Hall, #208190, at Thumb Correctional Facility, 3225 John Conley 

Drive, Lapeer, MI 48446 by first class U.S. mail on January 18, 2012. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS

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