UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD RAYMOND,

Plaintiff,

v.

DEBRA SCUTT,

Defendants. 

 /

Case Number: 2:09-CV-11396

HON. MARIANNE O. BATTANI

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Richard Raymond filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the Michigan

Department of Corrections pursuant to a second-degree murder conviction. He raises

fourteen grounds for habeas relief. Respondent argues that the claims are meritless and/or

procedurally defaulted. 

The Court denies the petition. 

I. Background

Petitioner’s conviction arises from the stabbing death of Rodney Johnson, on

September 17, 1994, in Lansing, Michigan. The Michigan Court of Appeals provided a

factual overview of the case, which is presumed correct on habeas review, see Monroe v.

Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir.

2002), as follows:

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Defendant’s conviction resulted from the stabbing death of Rodney Johnson

during a drug transaction gone bad. The victim, whom witnesses testified

was unarmed, suffered a nonfatal stab wound to his abdomen and a fatal

stab wound to his inner right thigh.2

 Additionally, the victim had cuts on

the fingers of his right hand that appeared to be defensive wounds.

During the incident, defendant was overheard to say, “I told you don’t

f[uck] with me” and, “That’ll show you.” Subsequently, defendant told a

friend that during a drug transaction with the victim, the victim attempted to

steal defendant’s marijuana. Defendant told his friend that he stabbed the

victim in the stomach and leg. Defendant did not mention having to defend

himself during the incident. In fact, defendant was heard to say that he “got

the nigger.”3

 Another friend testified that he was with defendant when

defendant threw the knife used to stab the victim into the river.

At trial, defendant testified that he picked up the victim in order to trade

some homegrown marijuana for crack cocaine. Twice the victim directed

defendant to a location where the victim left with the marijuana and

returned with crack cocaine, which the two men then smoked together. 

Defendant wanted more crack cocaine, so they went to defendant’s house to

retrieve more marijuana to trade with, whereupon the victim made a

telephone call and said that he could arrange another trade. The victim then

directed defendant to another location and left with the marijuana as before. 

Subsequently, defendant began to look for him. The victim, when spotted

by defendant, began to run. Defendant pursued the victim. The chase

ended at defendant’s car. The victim threw the marijuana to the ground

near the rear bumper. Defendant testified that as he reached to pick it up,

the victim stabbed at him with an umbrella. Defendant then took out his

knife and the victim laughed, saying, “Oh, you got a knife.” The victim

then tried to kick defendant in the groin but defendant brought his arm

down to defend himself, stabbing the victim in the leg. Defendant asserted

that the victim then came at him again and when defendant pushed him

away, he stabbed him in the side. Defendant then said to the victim,

“[D]on’t ever come back to my house, because I’ll fix you.” Defendant

claimed that he did not intend to kill the victim and that he threw the knife

in the river because he was afraid.

_________________________

2

This wound caused excessive blood loss. 

3

Defendant told other friends that the victim was poking him with an

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umbrella and that he stabbed the victim to defend himself.

People v. Raymond, No. 195891, 2000 WL 33401824, *1 (Mich. Ct. App. Nov. 17,

2000). 

II. Procedural History

Petitioner was charged in Ingham County Circuit Court with first-degree murder. 

A jury found him guilty of second-degree murder. On May 15, 1996, he was sentenced to

20 to 30 years in prison. 

Petitioner appealed his conviction to the Michigan Court of Appeals. He raised

these claims:

I. Defendant was denied his state and federal rights to present a defense and to

a fair trial where the trial court ordered him to undergo a criminal

responsibility examination where the defense was not insanity and, when

defendant refused to comply, excluded all evidence regarding defendant's

personality even though it was central to the defense.

II. The failure to instruct that the prosecution had the burden of proving the

absence of heat of passion beyond a reasonable doubt in order to convict

defendant of murder rather than manslaughter, denied defendant his state

and federal constitutional right to due process of law. 

III. The failure of the trial court to define the term “great bodily harm” in the

course of the instruction on second degree murder coupled with an

erroneous instruction on the defense of accident was reversible error and

deprived defendant of a fair trial.

IV. Defendant was denied due process of law by the denial of his motion for

directed verdict on the charge of first degree murder and the fact that his

conviction of second degree was based on insufficient evidence.

V. The verdict was against the great weight of the evidence.

VI. Defendant was denied a fair trial by the trial court's refusal to give his

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requested instruction on imperfect self defense.

VII. Defendant was denied his state and federal due process rights to a fair trial

where the trial court gave only the standard jury instruction on reasonable

doubt and refused to give either of two instructions requested by defendant

even after the prosecutor made an argument which denigrated the

reasonable doubt standard.

VIII. Defendant was denied a fair trial by the prosecutor’s injection of racism into

the trial as a motive for the killing and the prosecutor’s statement of belief

in the truthfulness of prosecution witnesses.

IX. Defendant’s minimum sentence of twenty years, in excess of the guidelines

range of four to fifteen years, was disproportionate and was an abuse of

discretion.

The Michigan Court of Appeals affirmed the conviction. People v. Raymond, No.

195891, 2000 WL 33401824 (Mich. Ct. App. Nov. 17, 2000). 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. 

He raised these claims:

I. Defendant was denied a fair trial by the prosecutor’s injection of racism into

the trial as a motive for the killing and the prosecutor’s statement of belief

in the truthfulness of prosecution witnesses.

II. Defendant was entitled to use expert psychological evidence to explain why

he acted in an excited manner after killing the victim and to inform the jury

that he was more susceptible to provocation than the average person

therefore it is reversible error based on ineffective assistance of counsel

where defendant's due process rights are denied by failure of counsel to

provide an alternative forensic order and defendant is denied a legitimate

defense.

III. Defendant was denied due process and a fair trial where there was

insufficient evidence to convict defendant of second-degree murder

because: a) defendant acted in hot blood and in the heat of passion rather

than judgment negating second degree murder; b) the evidence supports the

defense of self defense; and c) if this court were to believe the court’s ruling

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that the defendant was the initial aggressor then the defendant is either not

guilty or guilty of manslaughter on the theory of imperfect self defense. 

IV. Defendant was denied due process and a fair trial when the trial court

denied defendant’s motion for a directed verdict on the charge of firstdegree murder forcing the jury to reach a compromise verdict because there

was insufficient evidence to convict defendant of first-degree premeditated

murder. 

III. Defendant was denied a fair trial and due process when the court failed to

give the requested instruction on imperfect self defense. 

IV. The trial court committed reversible error when failing to give a proper

‘when to acquit’ definition of reasonable doubt that tended to

constitutionally reduce the prosecution’s burden of proof from “absolute” or

“utmost [evidentiary] certainty”, and refused to give either of the

instructions requested by defendant even after the prosecutor made an

argument which denigrated the reasonable doubt standard, denying

defendant his absolute right to a fair trial and due process. 

V. The failure to instruct that the prosecution had the burden of proving the

absence of heat of passion beyond a reasonable doubt in order to convict

defendant of murder rather than manslaughter denied defendant his state

and federal constitutional right to due process.

VI. The failure of the trial court to define the term “great bodily harm” when

instructing on second degree murder coupled with an erroneous instruction

on the defense of accident was reversible error and deprived defendant of a

fair trial. 

VII. Defendant was denied due process and a fair trial when one of the jurors

gave false information during voir dire.

VIII. The trial court committed reversible error in its evidentiary ruling by

foreclosing evidence of the decedent’s character traits and reputation in the

community for violence and ripping people off, where the evidence was

offered as circumstantial evidence to establish the decedent was the primary

aggressor, thus denying defendant fundamental fairness, due process, a fair

trial and the right to present a defense. 

IX. Defendant was denied the effective assistance of trial counsel, a fair trial,

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and confrontation, when counsel failed to make use of the discovery

materials provided to him prior to trial for impeachment purposes.

X. Defense counsel’s failure to object to the prosecutor’s personal beliefs, and

erroneous jury instructions, denied petitioner due process, a fair trial, and

the effective assistance of counsel.

XI. Petitioner was denied due process and a fair trial because of the cumulative

effect of the ineffective assistance of counsel, prosecutorial misconduct,

jury instructions, and juror misconduct.

XII. Defendant’s minimum sentence of twenty years, in excess of the guidelines

range of four to fifteen years, was disproportionate and was an abuse of

discretion. 

The Michigan Supreme Court denied leave to appeal. People v. Raymond, 463

Mich. 1014 (Mich. Apr. 30, 2001). 

Petitioner filed a motion for relief from judgment in the trial court. He raised these

claims in his original and amended motions: (i) counsel was ineffective for failing to

investigate and raise defenses of insanity, diminished capacity, voluntary intoxication and

involuntary intoxication; (ii) counsel was ineffective because he revealed that Petitioner

was incarcerated while on trial; (iii) the trial court improperly admitted evidence during

the trial and counsel was ineffective for failing to object; and (iv) counsel was ineffective

for failing to raise these issues. Petitioner filed two amended motions for relief from

judgment raising Confrontation Clause and sentencing claims. The trial court conducted

a Ginther hearing, then denied Petitioner’s original motion for relief from judgment on

August 11, 2005. People v. Raymond, No. (Ingham County Cir. Ct. Aug. 11, 2005). 

Petitioner filed applications for leave to appeal in the Michigan Court of Appeals and

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Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v.

Raymond, No. 267814 (Mich. Ct. App. July 27, 2006); People v. Raymond, 477 Mich.

944 (Mich. Nov. 29, 2006). 

On June 27, 2007, Petitioner filed a third amended motion for relief from

judgment. The trial court issued an Order denying Petitioner’s third amended motion for

relief from judgment, which raised a Crawford-related claim. People v. Raymond, No.

95-69404-FC (Ingham County Cir. Ct. Sept. 4, 2007). Both Michigan appellate courts

denied Petitioner’s applications for leave to appeal the trial court’s decision. People v.

Raymond, No. 282946 (Mich. Ct. App. June 4, 2008); People v. Raymond, 482 Mich.

1064 (Mich. Nov. 25, 2008).

Petitioner then filed the pending petition. He raises these claims: (1) Petitioner

was denied a fair trial because the prosecutor injected racism into the trial as a motive for

the murder and stated her belief in the truthfulness of her witnesses; (2) Petitioner’s trial

counsel was ineffective for failing to present expert testimony about why Petitioner acted

in an excited manner after killing the victim and to inform the jury that he was more

susceptible to provocation than the average person; (3) insufficient evidence was

presented to support second-degree murder conviction; (4) the trial court should have

granted Petitioner’s motion for a directed verdict on first-degree murder; (5) the trial

court erred when it failed to instruct on imperfect self-defense; (6) the trial court failed to

give a requested jury instruction on reasonable doubt; (7) the trial court failed to explicitly

instruct the jury that the prosecution had the burden of proving the absence of heat of

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passion beyond a reasonable doubt; (8) the trial court failed to define the term “great

bodily harm” and erroneously instructed on accident; (9) Petitioner was prevented from

presenting evidence about the victim’s reputation for violence, (10) trial counsel was

ineffective for failing to use evidence of a witness’s prior convictions for impeachment;

(11) cumulative error; (12) counsel was ineffective for failing to assert an insanity

defense, a diminished capacity defense, an involuntary intoxication defense or a voluntary

intoxication defense, (13) the trial court improperly denied Petitioner’s motion for relief

from judgment because Crawford applied retroactively; and (14) Petitioner was denied a

fair trial when one of the jurors allegedly gave false information during voir dire.

III. Standard

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceedings. 

28 U.S.C. § 2254(d). 

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a

rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

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‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute

permits a federal habeas court to ‘grant the writ if the state court identifies the correct

governing legal principle from [the Supreme] Court but unreasonably applies that

principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)

(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court find a state

court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s application

must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations

omitted); see also Williams, 529 U.S. at 409. “A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. __, 131

S. Ct. 770, 789 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

“Section 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal. . . . As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

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at 786-87 (internal quotation omitted). 

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as

determined by the Supreme Court at the time the state court renders its decision. See

Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme

Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so

long as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established

law” are to be determined solely by resort to Supreme Court rulings, the decisions of

lower federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing

Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.

2d 354, 359 (E.D. Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th

Cir. 1998). 

IV. Discussion

A. Procedural Default

Respondent argues that certain of Petitioner’s claims are procedurally defaulted.

“[F]ederal courts are not required to address a procedural-default issue before deciding

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against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003),

citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel

giving the [other] question priority, for example, if it were easily resolvable against the

habeas petitioner, whereas the procedural-bar issue involved complicated issues of state

law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of judicial

economy are best served by addressing the merits of Petitioner’s claims. 

B. Prosecutorial Misconduct Claims

Petitioner’s first claim focuses on the prosecutor’s conduct. Petitioner argues that

the prosecutor improperly injected race into the trial and invited the jury to convict on the

ground that Petitioner held racist views. He also argues that the prosecutor improperly

vouched for the credibility of prosecution witnesses. 

The “clearly established Federal law” relevant to a habeas court’s review of a

prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,

477 U.S. 168, 181 (1986). Parker v. Matthews, __ U.S.__, 132 S. Ct. 2148, 2153, (June

11, 2012). In Darden, the Supreme Court held that a “prosecutor’s improper comments

will be held to violate the Constitution only if they ‘so infected the trial with unfairness as

to make the resulting conviction a denial of due process.’” Id. (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). This Court must ask whether the Michigan

Court of Appeals’ (which, despite finding the claims not properly preserved, nevertheless,

denied them on the merits) decision denying Petitioner’s prosecutorial misconduct claims

“‘was so lacking in justification that there was an error well understood an comprehended

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in existing law beyond any possibility for fairminded disagreement.’” Parker, __ U.S. at

__, 132 S. Ct. at 2155, (quoting Harrington, 562 U.S. at __, 131 S. Ct. at 786-87. 

First, Petitioner argues that the prosecutor improperly injected race into the trial

and invited the jury to convict based upon Petitioner’s racist views. During her opening

statement, the prosecutor referred to Petitioner’s purported statement to Brian Cole (who

did not testify) that he “just gutted me a coon.” Witness Jeff Hayward testified that

Petitioner referred to the victim as a “nigger.” The prosecutor asked Petitioner about both

statements on cross-examination. In her closing argument, the prosecutor argued that

Petitioner viewed the victim as less than human based on his race. The Michigan Court

of Appeals, although finding this claim unpreserved for appellate review, nevertheless

addressed the merits of this claim. The state court held that the “prosecutor’s comments

about the role racism played in the murder were permissible in light of the evidence

presented at trial, including defendant’s comments to his friend that ‘he got the nigger.’” 

People v. Raymond, 2000 WL 33401824 at *8.

The prosecutor’s argument and cross-examination of Petitioner were relevant to

the issue of Petitioner’s culpability and intent. The prosecutor’s arguments and question

were not constructed out of thin air. They were spurred by and consistent with testimony

adduced at trial. The prosecutor was not required to ignore this testimony because of its

sensitivity. She asked the jury to convict based upon the evidence presented, not based

upon Petitioner’s views. Thus, the state court’s finding of no prosecutorial misconduct

was reasonable. 

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Next, Petitioner argues that the prosecutor improperly vouched for the credibility

of prosecution witnesses in her closing and rebuttal arguments as follows:

There was some indication that Jeff Hayward shouldn’t be thought of as

credible. I believe the opposite is true. Certainly Jeff Hayward was

appearing as though he was perhaps high or certainly out of it, when he

testified here. But, we believe that his testimony is very truthful . . . 

Tr., 3/4/96 at p. 75. 

Petitioner also objects to the following argument:

Now, I’d like you to look at their motivation. They’re not the greatest

characters. They’re all hanging around in a group smoking dope. That’s

certainly true. But, they didn’t want to tell on the defendant. They didn’t

tell on the defendant for more than one year. Pastras lied, when first

contacted and Hayward only came forward after Banks insisted the police

wanted to know who he was and Banks wouldn’t even give up Hayward’s

name. These people did not want to come forward, but we know they came

with the truth. 

Tr., 3/4/96 at 103.

The Michigan Court of Appeals held that much of the prosecutor’s closing

argument posited that, based upon the testimony presented at trial, certain witnesses

should be regarded as credible. The Michigan Court of Appeals held that if certain of the

prosecutor’s arguments could be fairly construed as implying the prosecutor possessed

some special knowledge about the truth of the testimony, no misconduct occurred because

the comments were isolated and the court instructed the jury that arguments were not

evidence. 

The prosecutor should have refrained stating “we believe” and “we know” that

certain witnesses came forward with “the truth.” But, as the state court noted, the

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references were brief and the jury was instructed that attorney arguments were not

evidence. Thus, this Court finds that the state court’s decision was not “so far out of line

with the very general standard” established in Darden as to entitle Petitioner to habeas

relief. Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011) (en banc). 

C. Ineffective Assistance of Counsel Claims

Petitioner raises several claims regarding the performance of his trial counsel. He

claims counsel was ineffective for failing to: (i) present evidence about why Petitioner

responded to killing the victim in an excited manner and why he was more susceptible to

provocation than the average person; (ii) use evidence of a witness’s prior convictions for

impeachment; and (iii) assert an insanity defense, a diminished capacity defense, an

involuntary or voluntary intoxication defense. 

To establish that he received ineffective assistance of counsel, a petitioner must

show, first, that counsel’s performance was deficient and, second, that counsel’s deficient

performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687

(1984). A petitioner may show that counsel’s performance was deficient by establishing

that counsel’s performance was “outside the wide range of professionally competent

assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at

687. 

To satisfy the prejudice prong, a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s

performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only

if the state-court decision unreasonably applied the standard for evaluating

ineffective-assistance-of-counsel claims established by Strickland. Knowles v.

Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not whether a federal court

believes the state court’s determination under the Strickland standard was incorrect but

whether that determination was unreasonable – a substantially higher threshold.” Id. at

123 (internal quotation omitted). 

In his first and third ineffective assistance of counsel claims, Petitioner argues that

his attorney was ineffective in failing to present evidence about why Petitioner responded

to killing the victim in an excited manner and why he was more susceptible to

provocation than the average person and in failing to present a defense of diminished

capacity, insanity or intoxication. The trial court held an evidentiary hearing on collateral

review regarding this claim. Petitioner’s trial attorney Robert Minock, Petitioner, and

Petitioner’s father testified at the hearing. Following the hearing, the trial court,

specifically applying the Strickland standard, held that the decision to present a defense of

self-defense rather than one of insanity or diminished capacity was a tactical one. The

trial court further held that the decision was reached after conferring with Petitioner in

considerable detail about the defense strategy, and that Petitioner concurred in the

strategy. The trial court found Petitioner’s testimony that counsel never discussed

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possible defenses of insanity or diminished capacity not to be credible. Moreover, the

trial court held that the record provided no support for an insanity defense and minimal

support for a diminished capacity defense. 

“Counsel’s reasonable trial decisions are permissible, ‘even if mistaken.’” Schauer

v. McKee, 401 F. App’x 97, 100 (6th Cir. 2010). “[T]he Constitution does not guarantee

every defendant a successful defense.” Id. (internal quotation omitted). In this case,

defense counsel testified that the various defenses available were considered and

discussed at length with Petitioner. After considering the alternative, defense counsel,

with the consent of Petitioner, concluded that self-defense was the best defense. 

Petitioner was entitled to competent representation, not a “perfect defense.” Crehore v.

U.S., 127 F. App’x 792, 796 (6th Cir. 2005). Defense counsel articulated a reasonable

explanation for his decision. While another attorney may have proceeded differently,

“[t]here are . . . ‘countless ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a particular client in the same

way.’” Harrington, 131 S. Ct. at 788-89. Competent counsel need not be “a flawless

strategist or tactician” and “an attorney may not be faulted for a reasonable

miscalculation.” Id. at 791. At worst, defense counsel’s decision to proceed with only a

defense of self-defense was a reasonable miscalculation, which falls far short of

Strickland’s high bar. 

Second, Petitioner claims that counsel was ineffective in failing to impeach

prosecution witness Jeffrey Hayward with two prior felony convictions which contained

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elements of dishonesty and theft. The Michigan Court of Appeals denied this claim. 

Though the state court’s decision on this issue lacked explanation, the decision is still

owed deference under the AEDPA. Harrington, 131 S. Ct. at 784. Michigan Rule of

Evidence 609 allows the admission of prior convictions for crimes containing an element

of dishonesty or false statement, unless a period of more than ten years has elapsed since

the conviction or the witness’s release from confinement imposed for that conviction. 

Mich. Rule of Evidence 609(a)(1) & (c). Here, Hayward’s convictions pre-dated the trial

by well over ten years. Therefore, Petitioner cannot show counsel was ineffective in

failing to impeach the witness with those convictions. 

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D. Sufficiency of the Evidence

Petitioner argues that insufficient evidence was presented to convict him of

second-degree murder because the evidence presented supported only a finding of

manslaughter or a finding that he acted in self-defense or imperfect self-defense. 

“[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, review

of a sufficiency of the evidence challenge must focus on whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, “[t]he

Jackson standard must be applied ‘with explicit reference to the substantive elements of

the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th

Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). 

“Two layers of deference apply to habeas claims challenging evidentiary

sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v.

Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court “must determine whether,

viewing the trial testimony and exhibits in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Brown, 567 F.3d at 205, (citing Jackson, 443 U.S. at 319). Second, if

the Court were “to conclude that a rational trier of fact could not have found a petitioner

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guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the

state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.

Under Michigan law, the elements of second-degree murder are: (1) a death, (2)

caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. 

People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998). The malice element is satisfied

“by showing that the defendant possessed the intent to kill, to do great bodily harm, or to

create a high risk of death or great bodily harm with the knowledge that death or great

bodily harm would be the probable result. . . . Malice can be inferred from evidence that a

defendant intentionally set in motion a force likely to cause death or great bodily harm.” 

People v. Djordjevic, 584 N.W.2d 610, 612 (Mich. Ct. App. 1998) (internal citation

omitted). 

The Michigan Court of Appeals held, in pertinent part:

In this case, defendant admitted causing the victim’s death, so the first and

second elements [of second-degree murder] were met. The third element,

malice, may be inferred from defendant’s use of a knife – a deadly weapon.

Carines, supra, 460 Mich. at 760; People v. Turner, 213 Mich.App 558,

567; 540 NW2d 728 (1995). Moreover, viewing the evidence in the light

most favorable to the prosecutor, defendant’s claim of self-defense is

overcome by the evidence that instead of just leaving the scene, defendant

looked for the unarmed victim, chased him down, and stabbed him at least

twice. The evidence was sufficient to support the second-degree murder

conviction.

Raymond, 2000 WL 33401824 at *7. 

“A reviewing court does not reweigh the evidence or redetermine the credibility of

the witnesses whose demeanor has been observed by the trial court.” Matthews v.

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Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), (citing Marshall v. Lonberger, 459 U.S.

422, 434 (1983)). “A reviewing court ‘faced with a record of historical facts that supports

conflicting inferences must presume – even if it does not affirmatively appear in the

record – that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” McDaniel v. Brown, 558 U.S. 120, __ (2010), (quoting

Jackson, 443 U.S. at 326). According the state court’s findings of fact a presumption of

correctness, this Court concludes that the Michigan Court of Appeals’ decision that

sufficient evidence was presented for a finding of guilty of second-degree murder did not

“result[] in a decision that . . . involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). Petitioner is not entitled to federal habeas corpus relief with respect to this

claim. 

E. Motion for Directed Verdict on First-Degree Murder

Petitioner claims that he is entitled to habeas corpus relief because the trial court

erred in denying his motion for a directed verdict and dismissal on the charge of firstdegree murder because insufficient evidence was presented to establish premeditation and

deliberation. Petitioner argues that submission of this charge to the jury resulted in a

compromise verdict. 

Some courts have held that submission to the jury of a charge not supported by

sufficient evidence is harmless error where the defendant is acquitted of that charge. See

Howard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); United States v. Alexander,

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471 F.2d 923, 966 (D.C. Cir. 1972). The Sixth Circuit Court of Appeals, however, has

yet to directly address this question. See Daniels v. Burke, 83 F.3d 760, 765 n.4 (6th Cir.

1996). In Daniels, the petitioner argued that his right to due process was violated when

the trial court allowed a first-degree murder charge to be submitted to the jury. The

petitioner argued that there was no justification for submission of that charge, and, even

though he was acquitted of first-degree murder, he suffered prejudice because the

conviction for second-degree murder may have been a compromise verdict. Id. at 765. 

The Sixth Circuit Court of Appeals held that it need not address whether to apply the

harmless error rule based upon the petitioner’s acquittal of that charge because sufficient

evidence from which to conclude that the petitioner was guilty of first-degree murder was

presented, and, the petitioner’s due process claim, therefore, was meritless Id. 

In this case, the Michigan Court of Appeals held that sufficient evidence was

presented to support submission of the first-degree murder charge to the jury, stating, in

pertinent part:

First-degree premeditated murder is defined in M.C.L. § 750.316(1)(a);

MSA 28.548(1)(a) as a “willful, deliberate, and premeditated killing.” A

conviction of first-degree, premeditated murder thus requires proof “that the

defendant intentionally killed the victim and that the act of killing was

premeditated and deliberate.” Kelly, supra, 231 Mich. App at 642. These

elements may be inferred from the circumstances surrounding the killing.

People v. Ortiz-Kehoe, 237 Mich. App 508, 520; 603 N.W.2d 802 (1999).

“Premeditation and deliberation require sufficient time to allow the

defendant to take a ‘second look.’” Kelly, supra, 231 Mich. App. at 642.

However, “[o]ne cannot instantaneously premeditate a murder.” People v.

Plummer, 229 Mich. App 293, 305; 581 N.W.2d 753 (1998). Rather, there

must be “substantially more reflection on and comprehension of the nature

of the act than the mere amount of thought necessary to form the intent to

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kill.” Id. at 301. A non-exhaustive list of factors which may be considered

to establish premeditation includes: “(1) the previous relationship between

the defendant and the victim; (2) the defendant's actions before and after the

crime; and (3) the circumstances of the killing itself, including the weapon

used and the location of the wounds inflicted.” Id. at 300.

In this case, viewing the evidence presented by the prosecutor up to the time

the motion for a directed verdict was made in the light most favorable to the

prosecution, as we are required to do, People v. Crawford, 232 Mich.App

608, 615-616; 591 N.W.2d 669 (1998), we find that a rational trier of fact

could have found that the essential elements of first-degree murder were

proven beyond a reasonable doubt. There was sufficient evidence from

which a reasonable jury could conclude that defendant had an opportunity

to take a “second look” before carrying out his intention to kill the victim.

The prosecutor presented evidence that defendant looked for and chased

down the unarmed victim. He then stabbed the victim at least twice and

told him “That’ll show you,” and “I told you don't f[uck] with me.” After

the stabbing, defendant told a friend that he “got the nigger.” Thus,

defendant’s actions before and after the crime indicate that the killing was

premeditated. Plummer, supra, 229 Mich. App. at 300. Moreover, the

circumstances of the killing itself, including the location of the wounds

inflicted, demonstrates premeditation. Id. Although the use of a knife,

alone, does not raise an inference of premeditation, People v. Oster, 67

Mich. App, 490, 497; 241 N.W.2d 260 (1976), the victim suffered

defensive wounds. This can be evidence of premeditation. People v.

Johnson, 460 Mich. 720, 733; 597 N.W.2d 73 (1999). In sum, viewing the

evidence presented up to the time of defendant's motion in the light most

favorable to the prosecutor, we conclude that the trial court did not err by

denying defendant's motion for a directed verdict.

Raymond, 2000 WL 33401824 at *6. 

According the state court’s factual determinations a presumption of correctness,

the Court holds that the state court’s decision that sufficient evidence was presented to

support submission of the first-degree premeditated murder charge to the fact finder was

not an unreasonable application of Supreme Court precedent. Thus, Petitioner’s claim is

meritless. 

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F. Jury Instructions

Petitioner raises several claims related to jury instructions. He claims the trial

court erred in failing to: (i) instruct the jury on imperfect self defense; (ii) give a

requested instruction on reasonable doubt; (iii) instruct the jury that the prosecution bore

the burden of proving beyond a reasonable doubt the absence of heat of passion; (iv)

define the term “great bodily harm”; and (v) properly instruct on accident. 

“In a criminal trial, the State must prove every element of the offense, and a jury

instruction violates due process if it fails to give effect to that requirement. Nonetheless,

not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of

a due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal

citation omitted). An erroneous jury instruction warrants habeas corpus relief only where

the instruction “‘so infected the entire trial that the resulting conviction violates due

process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991), (quoting Cupp v. Naughten, 414

U.S. 141, 147 (1973)). “[I]t must be established not merely that the instruction is

undesirable, erroneous, or even ‘universally condemned,’ but that it violated some

[constitutional] right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The jury

instruction “‘may not be judged in artificial isolation,’ but must be considered in the

context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72

(quoting Cupp, 414 U.S. at 147). 

First, Petitioner argues that the trial court erred when it failed to give an imperfect

self-defense instruction under an excessive force theory. The Michigan Court of Appeals

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held that the instruction was not warranted under Michigan law. It is outside the province

of a federal court, on habeas review, to second-guess a state court’s interpretation of state

law. Davis v. Morgan, 89 F. App’x 932, 936 (6th Cir. 2003). Where a state appellate

court has assessed the necessity of a particular jury instruction under state law, a federal

habeas court cannot question that state-law finding. Id. Therefore, this claim fails to state

a claim upon which habeas relief may be granted. 

Second, Petitioner argues that the trial court erred in denying his request for one of

two reasonable doubt instructions and that the instruction actually given reduced the

burden of proof necessary for a conviction. The following instruction was given:

A reasonable doubt is a fair, honest doubt growing out of the evidence or

lack of evidence. It is not merely an imaginary or possible doubt, but a

doubt based on reason and common sense. A reasonable doubt is just that,

a doubt that’s reasonable after a careful and considered examination of the

facts and circumstances of the case. 

Tr., 3/4/96 at 119-20. 

Petitioner argues that this instruction, in contrast to the two alternative instructions

he proposed, was circular and did little to convey the meaning of reasonable doubt. He

argues that “moral certainty” or “hesitate to act” language would have better defined the

term. The Michigan Court of Appeals held that the given instruction adequately

conveyed to the jury the required level of proof. 

The Sixth Circuit has held that there are no “magic words” that must be used to

define the state’s burden of proof. Binder v. Stegall, 198 F.3d 177, 179 (6th Cir. 1999). 

Rather, the Due Process Clause requires that the instruction “not lead the jury to convict

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on a lesser showing than ‘reasonable doubt’ and when taken as a whole, adequately

conveys the ‘concept’ of reasonable doubt.” Id. The instruction given in this case was

identical to that considered and approved in Binder. Thus, this claim does not warrant

habeas relief. 

Next, Petitioner argues that the trial court erred in failing to specifically instruct

the jury that the prosecutor bore the burden of proving, beyond a reasonable doubt, that

he did not act out of passion or anger. The Michigan Court of Appeals denied this claim,

holding:

[T]he instructions given sufficiently protected defendant’s rights. The

substance of defendant’s special instruction was covered by the trial court’s

instruction to the jury that, in order to convict defendant of murder, the

prosecutor must prove that the killing did not occur under circumstances

that would reduce it to a lesser offense. The court also instructed the jury

that murder could be reduced to manslaughter under certain circumstances.

The court then set forth those mitigating circumstances for the jury.

Therefore, viewed as a whole, the instructions informed the jury that it was

the prosecutor, not defendant, who was required to prove that the mitigating

circumstances did not occur. Under these circumstances, defendant’s

special instruction was unnecessary.

Raymond, 2000 WL 33401824 at *4. 

In Jacobs v. Sherman, 301 F. App’x 463 (6th Cir. 2008), the Sixth Circuit Court of

Appeals rejected an argument essentially identical to Petitioner’s. The petitioner in

Jacobs argued that the trial court erred in failing to instruct the jury that the state had the

burden of proving the absence of heat of passion in order to prove murder. In that case,

the trial court twice informed the jury that the prosecution had the burden of proving each

element beyond a reasonable doubt. The Sixth Circuit held that because the instructions

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specifically placed the burden of proving intent beyond a reasonable doubt on the

prosecution, the absence of a specific instruction regarding the absence of heat of passion

did not result in a due process violation. Id. at 467-68. 

In this case, the trial court similarly instructed the jury that the prosecutor bore the

burden of proving each element beyond a reasonable doubt. Therefore, the state court’s

decision that the instructions were adequate is in accord with Sixth Circuit case law and a

reasonable application of Supreme Court precedent. 

Next, Petitioner argues that the trial court violated his right to due process by

failing to define the term “great bodily harm” when instructing the jury on second-degree

murder and in giving an inadequate accident instruction. The Michigan Court of Appeals

held that Michigan law did not require a jury to be instructed on the definition of “great

bodily harm” and that a definition was not required because the term is not “obscure or

difficult to understand.” Raymond, 2000 WL 33401824 at *5. In addition, the state court

held that the accident instruction properly explained the intent necessary for seconddegree murder. 

Petitioner failed to demonstrate that the jury instruction was erroneous under state

law. Because the instruction was correct under state law, Petitioner cannot show that it

had any prejudicial effect, much less that it “so infused the trial with unfairness as to deny

due process of law.” Estelle, 502 U.S. at 75. Petitioner therefore cannot meet his burden

of showing fundamental unfairness in violation of due process. He is not entitled to

habeas relief with respect to this claim.

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G. Victim’s Reputation for Violence

Petitioner next claims that habeas relief should be granted because the trial court

excluded evidence of the victim’s reputation for violence, denying Petitioner his right to

present a defense. 

While the right to present a defense is a fundamental tenet of due process, “a

defendant’s right to present evidence is not unlimited, but rather is subject to reasonable

restrictions.” United States v. Scheffer, 523 U.S. 303, 307 (1998). Indeed, “[a]

defendant’s interest in presenting . . . evidence may thus bow to accommodate other

legitimate interests in the criminal trial process.” Id. (internal quotations omitted). 

However, the exclusion of evidence is unconstitutional where it “infringe[s] upon a

weighty interest of the accused.” Id., citing Rock v. Arkansas, 483 U.S. 44, 58 (1987); see

also Chambers v. Mississippi, 410 U.S. 283, 302 (1973); Washington v. Texas, 388 U.S.

14, 22-23 (1967). In this case, the Michigan Court of Appeals held that the evidence was

inadmissible because Michigan Rule of Evidence 405(a) limits character trait evidence to

reputation or opinion evidence – evidence of specific instances of conduct is not allowed. 

Raymond, 2000 WL 33401824 at *9. The only evidence offered at trial regarding the

victim’s character was the victim’s prior convictions, evidence that was inadmissable

under Michigan law. The resolution of this evidentiary question did not violate

Petitioner's constitutional right to present a defense.

H. Alleged Crawford Violation

In his thirteenth claim, Petitioner argues that the state court erred in failing to

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apply Crawford v. Washington, 541 U.S. 36 (2004), retroactively to his case on collateral

review. Crawford is not applicable on collateral review or retroactively. Whorton v.

Bockting, 549 U.S. 406 (2007); Dorchy v. Jones, 398 F.3d 783 (6th Cir.2005). Therefore,

habeas relief is denied on this claim. 

I. Juror Misconduct

Petitioner argues that a juror gave false information under oath during voir dire. 

Juror Timothy Mayotte revealed during voir dire that his brother-in-law had been shot

during a robbery attempt. Mayotte stated he did not know if drugs were involved in the

robbery. Mayotte repeatedly stated under oath that he could be impartial. Petitioner

presents an affidavit from a private investigator who interviewed another juror, Terry

Fielder, approximately nine months after the trial ended. The investigator stated that

Fielder felt another juror, believed to be Mayotte, wanted to convict Petitioner of firstdegree murder as soon as he heard drugs were involved in the crime. Petitioner argues

that Mayotte’s pro-prosecution bent, as characterized by Fielder and the private

investigator, renders Mayotte’s voir dire testimony perjured and denied him his right to a

fair trial. 

The Sixth Amendment right to trial by jury encompasses the right to a fair trial by

a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717 (1961). The right to due process,

however, does not necessarily require a new trial in every instance in which a juror is

potentially biased. Smith v. Phillips, 455 U.S. 209, 217 (1982). Rather, “[d]ue process

means a jury capable and willing to decide the case solely on the evidence before it, and a

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trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of

such occurrences when they happen.” Id. To establish entitlement to a new trial because

of juror dishonesty during voir dire, a defendant “must first demonstrate that a juror failed

to answer honestly a material question . . . and then further show that a correct response

would have provided a valid basis for a challenge for cause.” McDonough Power Equip.,

Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Only juror misconduct that deprives a

defendant of a fair and impartial trial warrants habeas relief. Clemmons v. Sowders, 34

F.3d 352, 355 (6th Cir. 1994). 

The right to an impartial jury imposes on the trial judge the duty to investigate

allegations of external jury influences. Remmer v. United States, 347 U.S. 227, 229-230

(1954). At the same time, the Supreme Court has, with few exceptions, adhered to “the

near-universal and firmly established common-law rule in the United States flatly

prohibit[ing] the admission of juror testimony to impeach a jury verdict.” Tanner v.

United States, 483 U.S. 107, 117 (1987). The Supreme Court has recognized that “[t]here

is little doubt that postverdict investigation into juror misconduct would in some instances

lead to the invalidation of verdicts reached after irresponsible or improper juror

behavior,” while simultaneously observing that “[i]t is not at all clear . . . that the jury

system could survive such efforts to perfect it.” Tanner, 483 U.S. at 120. “Moreover, full

and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict,

and the community's trust in a system that relies on the decisions of laypeople would all

be undermined by a barrage of postverdict scrutiny of juror conduct.” Id. at 120-21. 

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Juror Fiedler’s comments to the investigator are inadmissible to challenge the verdict

because they reflect the jury’s internal deliberations. Tanner, 483 U.S. at 117. In

addition, nothing in the affidavit submitted by Petitioner establishes that Mayotte lied

during voir dire. Thus, Petitioner has failed to show any juror misconduct. 

J. Cumulative Effect

Finally, Petitioner claims that the cumulative effect of the alleged errors rendered

his trial fundamentally unfair in violation of due process. The cumulative weight of

alleged constitutional trial errors in a state criminal proceeding does not warrant federal

habeas relief because there is no clearly established federal law permitting or requiring

the cumulation of distinct constitutional claims to grant habeas relief. Moore v. Parker,

425 F.3d 250, 256 (6th Cir. 2005). Therefore, habeas relief is denied on this claim. 

V. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of

the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

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(citation omitted). In this case, the Court concludes that reasonable jurists would not

debate the conclusion that the petition fails to state a claim upon which habeas corpus

relief should be granted. Therefore, the Court will deny a certificate of appealability.

VI. Conclusion

Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is

DENIED and the matter is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATE: August 30, 2012

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was served

upon the Petitioner via ordinary U.S. Mail, and Counsel for the Respondent,

electronically.

s/Bernadette M. Thebolt

Case Manager

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