UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

_________________________________________________________________

DESHON STOKES,

Petitioner, Civil No. 2:09-CV-10171

v.

KENNETH MCKEE,

Respondent.

 /

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING A CERTIFICATE OF APPEALABILITY

Pending before the court is Petitioner Deshon Stokes’ petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the

Macomb Correctional Facility in New Haven, Michigan. In his pro se application,

Petitioner challenges his conviction of first-degree criminal sexual conduct in violation of

Mich. Comp. Laws § 750.520b(1)(e), two counts of assault with intent to murder in

violation of Mich. Comp. Laws § 750.83, two counts of felonious assault in violation of

Mich. Comp. Laws § 750.82, and two counts of possession of a firearm during the

commission of a felony in violation of Mich. Comp. Laws § 750.227b. Petitioner is

currently serving concurrent sentences of 225 to 360 months for the criminal sexual

conduct conviction and the two counts of assault with intent to murder, and 32 to 48

months for each counts of felonious assault. Petitioner was also sentenced to serve

two years for each count of felony firearm, those sentences to run concurrently with

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each other, but consecutive to the others. For the reasons that follow, the petition for

writ of habeas corpus will be denied. 

I. BACKGROUND 

Petitioner was convicted of the above offenses following a jury trial in the Wayne

County Circuit Court and appealed his convictions to the Michigan Court of Appeals on

the grounds “that his multiple assault convictions violated his right against double

jeopardy, and that his convictions in connection with one of the victims should be

dismissed on the ground that he was denied his confrontational rights by her purposeful

avoidance of trial.” People v. Stokes, No. 271714, 2007 WL 2609483, at *1 (Mich. Ct.

App. Sept. 11, 2007). The Michigan Court of Appeals summarized the government’s

case against Petitioner as follows:

[I]n the early morning hours of September 5, 2005, defendant summoned two

women to a house in Detroit, to accuse them of involvement in, and to extract

information about, an earlier robbery of a separate drug house he

maintained. Defendant threatened the women with a gun. He placed his gun

in one victim’s mouth and genital area and then doused both women with

gasoline and set them on fire.

Id. Petitioner’s convictions were affirmed, id., and the Supreme Court of Michigan

denied Stoke’s application for leave to appeal. People v. Stokes, 743 N.W.2d 55 (Mich.

2008). 

Petitioner subsequently filed a post-conviction motion for relief from judgment

asserting four arguments not raised on direct appeal. (Dkt. # 19-5.) The trial court

denied Petitioner’s motion (Dkt. # 19-6), and leave to appeal was denied by the

Michigan Court of Appeals and the Michigan Supreme Court. (Dkt. ## 19-3, 19-4.)

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Petitioner’s instant application for habeas relief, in which he seeks habeas relief

on the following grounds:

I. Petitioner’s convictions for felonious assault should be vacated because

convictions of both assault with intent to murder and felonious assault violated

the principles of double jeopardy where there was one continuous action.

II. Petitioner is entitled to dismissal of the convictions related to

complainant Hope Wilkins because he was denied his right of

confrontation, where she purposely avoided appearance at trial.

III. Petitioner was denied his rights to due process and a fair trial of the

U.S. Constitution Amendment XIV; Mich Const 1963 Art 1 § 17 as a result

of the prosecutor’s misconduct where he allowed the introduction of

perjured testimony.

IV. The district court judge abused its discretion at preliminary examination

in denying defense motion to adjourn when appointed counsel was not

present and substitute counsel was unprepared to proceed and requested

an adjournment.

V. Petitioner was denied the effective assistance of trial counsel and fair

trial by his attorney’s failure to present his alibi witnesses; and failed to call

the correct witnesses and investigate.

VI. Appellate counsel rendered ineffective assistance that fell below an

objective standard of reasonableness in violation of the Petitioner’s Sixth

Amendment right of the United States Constitution.

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified

28 U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases

brought by state prisoners. The AEDPA provides in relevant part:

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–

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(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 proceeding.

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

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

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

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

529 U.S. 362, 405-06 (2000)). An unreasonable application occurs when “a state-court

decision unreasonably applies the law of [the Supreme] Court to the facts of a

prisoner’s case.” Williams, 529 U.S. at 409. A federal habeas court may not “issue the

writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly.”

Id. at 411.

III. DISCUSSION

A. Double Jeopardy 

Petitioner contends that his right to be free from double jeopardy was violated

when the trial court sentenced him for the crimes of assault with intent to murder and

felonious assault where there was one continuous action.

Under Michigan law, the elements of assault with intent to commit murder are:

“(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the 

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killing murder.” Warren v. Smith, 161 F. 3d 358, 361 (6th Cir. 1998) (citation omitted). 

The intent to kill element does not equate with murder. Id. Under Michigan Law, the

elements of felonious assault or assault with a dangerous weapon are: “(1) an assault,

(2) with a dangerous weapon, and (3) with the intent to injure or place the victim in

reasonable apprehension of an immediate battery.” Gardner v. Kapture, 261 F. Supp.

2d 793, 804 (E.D. Mich. 2003) (citing People v. Lawton, 492 N.W.2d 810, 815 (Mich.Ct.

App. 1992)). 

The Double Jeopardy Clause serves “the function of preventing both successive

punishments and successive prosecutions.” United States v. Ursery, 518 U.S. 267,

273 (1996) (internal quotation marks and citations omitted). The protection against

multiple punishments prohibits the government from “punishing twice or attempting a

second time to punish criminally for the same offense.” Witte v. United States, 515

U.S. 389, 396 (1995) (emphasis omitted) (quoting Helvering v. Mitchell, 303 U.S. 391,

399 (1938)). Although the Double Jeopardy Clause protects a defendant against

cumulative punishments for convictions on the same offense, the clause does not

prohibit the state from prosecuting a defendant for such multiple offenses in a single

prosecution. See Ohio v. Johnson, 467 U.S. 493, 500 (1984). Moreover, whether

punishments are multiple, so as to violate the Double Jeopardy Clause, is essentially a

question of legislative intent. Id. at 499.

When multiple convictions are secured at a single trial, the test for determining

whether two offenses are sufficiently distinguishable to permit the imposition of

cumulative punishment is that set forth in Blockburger v. United States, 284 U.S. 299,

304 (1932). See Brown v. Ohio, 432 U.S. 161, 166 (1977). As the Supreme Court

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explained in Blockburger, “The applicable rule is that where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each provision

requires proof of an additional fact which the other does not . . . .” Blockburger, 284

U.S. at 304. “This test emphasizes the elements of the two crimes. ‘If each requires

proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding

a substantial overlap in the proof offered to establish the crimes . . . .’” Brown, 432 U.S.

at 166 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975)).

“The [Supreme] Court observed that the test established in Blockburger focuses

on the statutory elements of the two crimes with which a defendant has been charged,

not on the proof that is offered or relied upon to secure a conviction. . . . If each

[offense] requires proof of a fact that the other does not, the Blockburger test is

satisfied, notwithstanding a substantial overlap in the proof offered to establish the

crimes.” United States v. Barrett, 933 F. 2d 355, 360-61 (6th Cir. 1991) (internal

citations and quotes omitted). The Double Jeopardy Clause is not violated merely

because the same evidence is used to establish more than one statutory violation. 

See United States v. Dixon, 509 U.S. 688, 696 (1993). In deciding a habeas

petitioner’s double jeopardy claim, a federal habeas court is bound by a state court’s 

determination that the legislature intended state statutes to permit a defendant who is

convicted of multiple offenses to be punished for both offenses. See Banner v. Davis,

886 F.2d 777, 780 (6th Cir. 1989) (“Under the double jeopardy clause, when evaluating

whether a state legislature intended to prescribe cumulative punishments for a single

criminal incident, a federal court is bound by a state court's determination of the

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legislature's intent.” (citations omitted)); Palmer v. Haviland, 273 F. App’x. 480, 486-87

(6th Cir. 2008) (“We cannot independently apply typical rules of statutory construction,

including the Blockburger test, to a state statute and conclude that the state courts

were wrong in their reading of legislative intent.”). 

The Michigan Court of Appeals has held that assault with intent to commit

murder and felonious assault are separate crimes for the purpose of double jeopardy.

The Court of Appeals explained: 

[A]n actual intent to kill is an element of assault with intent to commit murder,

but is not required to prove felonious assault. Conversely, felonious assault

requires proof that the defendant committed an assault using a dangerous

weapon, an element not required to prove assault with intent to commit

murder. Because each offense contains an element that the other does not,

defendant's multiple punishments do not violate his double jeopardy

protections, even if the acts that led to the two assault convictions occurred

during a single temporal transaction.

People v. Rivers, No. 290885, 2010 WL 2384932, at *3 (Mich. Ct. Appeals June 15, 2010);

cf People v. Strawther, 739 N.W.2d 82, 82 (Mich. 2007) (“The Court of Appeals erred in

concluding that the defendant's convictions for both assault with intent to commit great

bodily harm (MCL 750.84) and felonious assault (MCL 750.82) violated his double jeopardy

protections. Because the crimes have different elements, the defendant may be punished

for each.”).

Furthermore, the Court of Appeals found that Petitioner’s felonious assault and

assault with intent to commit murder convictions arose from separate assaults. The

Michigan Court of Appeals rejected Petitioner’s double jeopardy challenge, on the

following grounds:

Here, there was one count of assault with intent to murder in connection with

each victim, but both counts of felonious assault concerned only one victim.

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The evidence concerning that victim was that defendant repeatedly struck

her with the butt of a handgun, then later with the butt of an AK-47, then

placed the latter in her mouth and the former in her genital area. The trial

court instructed the jury that one count of felonious assault stemmed from the

alleged assault with a handgun, and the other from the alleged assault with

the rifle, thus indicating that these were to be considered as separate

assaults. Clearly, the assault with intent to murder took place when

defendant later ignited the gasoline he had poured on the victim.

Defendant contends, incorrectly, that these assaults all occurred as a single

course of conduct that culminated in the ignition of the gasoline on the victim.

The assault with the handgun was complete before the assault with the rifle

began, and both of those assaults were complete before defendant

attempted murder by setting the gasoline-soaked victim on fire. Because

each assault was complete apart from the others, separate convictions and

sentences for each constituted no violation of defendant's rights against

double jeopardy.

Stokes, 2007 WL 2609483, at *1-2.

A state court’s factual determinations are presumed correct on federal habeas

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

with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

 Petitioner has not demonstrated through clear and convincing evidence that these findings

are incorrect. 

In light of the fact that Michigan courts have determined that felonious assault

and assault with intent to commit murder are separate offense, as well as the fact that 

the Michigan Court of Appeals found that Petitioner’s convictions arose from separate

assaults, the court finds that Petitioner’s double jeopardy claim lacks merit.

B. The Confrontation Clause 

Petitioner next contends that he was denied his right to confrontation when one

of the victims, Hope Wilkins, failed to testify at trial and when the trial court substituted

her preliminary examination testimony in place of live testimony at trial. When

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prosecutors seek to admit a nontestifying witness’ preliminary hearing testimony, the

Confrontation Clause requires two things: first, the prosecution must establish that the

declarant is “unavailable” by showing that prosecutorial authorities have made a

good-faith effort to obtain the declarant’s presence at trial, and, second, to satisfy the

“indicia of reliability” requirement, the prosecution must demonstrate that the defendant

had an adequate opportunity to cross-examine the declarant at the preliminary

examination. See Desai v. Booker, 538 F.3d 424, 427 (6th Cir. 2008).

As the Michigan Court of Appeals indicated in rejecting Petitioner’s claim, see

Stokes, 2007 WL 2609483, at *2, the record establishes that the witness was listed and

endorsed for trial, but failed to appear. The Michigan Court of Appeals further found that

neither Petitioner nor his counsel requested that the prosecutor produce or locate the

witness. Id. The record reflects that the government made diligent good-faith efforts to

secure victim’s presence at Petitioner’s trial. The police investigated the victim’s last

known address, which was a safe house, where she lived at the time of the preliminary

examination, and another officer made many efforts to find Wilkins. (Dkt. # 7-6, Pg. ID

382.) The court concludes that the prosecution and law enforcement made a good faith

effort to locate Wilkins and present her at trial. 

 In addition, Wilkins’ former preliminary examination testimony bore adequate

indicia of reliability because it was made under oath, Petitioner and his counsel were

present, and the witness was subject to cross-examination. (Dkt. # 7-3, 181-93.) See

California v. Green, 399 U.S. 149, 165-66 (1970). Even if counsel did not take full

advantage of the opportunity to cross-examine Wilkins at the preliminary examination, he

had an unlimited opportunity to do so. See Glenn v. Dallman, 635 F. 2d 1183, 1187 (6th

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Cir. 1980). Accordingly, the admission of the preliminary examination testimony at

Petitioner’s trial did not violate his right to confrontation. Petitioner’s Confrontation

Clause claim is without merit.

C. The Defaulted Claims

Respondent contends that Petitioner’s third, fourth, and fifth claims are

procedurally defaulted because Petitioner raised these claims for the first time in his

post-conviction motion, and failed to show cause and prejudice for failing to raise these

claims in his appeal of right, as required by Mich. Ct. R. 6.508(D)(3). Petitioner appealed

his convictions to the Michigan Court of Appeals on the grounds that his double jeopardy

and confrontational rights were violated, but he did not raise his remaining claims on

direct review. Stokes, 2007 WL 2609483, at *1. Petitioner first asserted these claims in

his motion for relief from judgment, which was filed on November 24, 2009. (Dkt. # 19-5,

Pg. ID 1076.) 

Mich. Ct. R. 6.508(D) provides: 

The court may not grant relief to the defendant if the motion [for relief from

judgment] . . . (3) alleges grounds for relief, other than jurisdictional defects,

which could have been raised on appeal from the conviction and sentence

. . . unless the defendant demonstrates (a) good cause for failure to raise

such grounds on appeal . . . , and (b) actual prejudice from the alleged

irregularities that support the claim for relief . . . .

For purposes of a conviction following a trial, “actual prejudice” means that,“but for the

alleged error, the defendant would have had a reasonably likely chance of acquittal.”

Mich. Ct. R. 6.508(D)(3)(b)(i). 

The trial court denied Petitioner’s motion on the ground, inter alia, that Petitioner

failed to show actual prejudice as required by Mich. Ct. R. 6.508(D)(3)(b). (Dkt. # 19-6,

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Pg. ID 1110.) The Michigan Court of Appeals and Michigan Supreme Court denied

Petitioner’s application for leave to appeal because Petitioner failed to establish

entitlement to relief under Mich. Ct. R. 6.508(D). (Dkt. # 19-3, Pg. ID 1004; Dkt. # 19-4,

Pg. ID 1045.)

“In all cases in which a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural rule, federal habeas

review of the claims is barred unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If Petitioner fails to show cause for

his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith

v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a

constitutional error has probably resulted in the conviction of one who is actually 

innocent, a federal court may consider the constitutional claims presented even in the

absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478,

496 (1986). To be credible, such a claim of innocence requires a petitioner to support

the allegations of constitutional error with new reliable evidence that was not presented

at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624

(1998). 

The Supreme Court has noted that “a procedural default does not bar

consideration of a federal claim on either direct or habeas review unless the last state

court rendering a judgment in the case ‘clearly and expressly’ states that its judgment

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rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last state

court judgment contains no reasoning, but simply affirms the conviction in a standard

order, the federal habeas court must look to the last reasoned state court judgment

rejecting the federal claim and apply the presumption that later unexplained orders

upholding the judgment or rejecting the same claim rested upon the same ground. Ylst

v. Nunnemaker, 501 U.S. 797, 803 (1991).

The Michigan Court of Appeals and the Michigan Supreme Court rejected

Petitioner’s post-conviction appeal on the ground that Petitioner failed to meet the

burden of establishing entitlement to relief under MCR 6.508(D). (Dkt. # 19-3, Pg. ID

1004; Dkt. # 19-4, Pg. ID 1045.) These orders did not refer to subsection (D)(3) nor did

they mention Petitioner’s failure to raise these claims on his direct appeal as their

rationale for rejecting his post-conviction claims. Because the form orders in this case

citing Rule 6.508(D) are ambiguous as to whether they refer to procedural default or a

denial of post-conviction relief on the merits, the court must look to the trial court’s

opinion. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010).

The trial court’s opinion held: 

[I]n order to avoid the bar against granting post judgment relief, a criminal

defendant must establish, in part, actual prejudice. [Mich. Ct. R.

6.508(D)(3)(b) . . . . [T]he Court finds that defendant has failed to show

actual prejudice and therefore, has not met his burden of demonstrating

entitlement to the requested relief. Defendant’s motion for relief from

judgment is accordingly denied.

(Dkt. # 19-6, Pg. ID 1110.) The trial court judge denied Petitioner post-conviction relief

based on the procedural grounds stated in Mich. Ct. R. 6.508(D)(3) and, therefore, found

that Petitioner’s post-conviction claims are procedurally defaulted. The fact that the trial

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judge also discussed the merits of Petitioner’s claims in addition to invoking the provisions

of Mich. Ct. R. 6.508(D)(3) to reject Petitioner’s claims does not alter this analysis. See

McBee v. Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991) (“[A] federal court need not reach

the merits of a habeas petition where the last state-court opinion clearly and expressly

rested upon procedural default as an alternative ground.”); Alvarez v. Straub, 64 F. Supp.

2d 686, 695 (E.D. Mich. 1999) (“[T]he fact that the trial court briefly discussed the merits of

the claim as an alternative basis for denying the motion does not alter th[e] conclusion [that

the petitioner’s claim was procedurally barred by Mich. Ct. R. 6.508(d)(3)].”). A federal court

need not reach the merits of a habeas petition where the last state court opinion clearly and

expressly rested upon procedural default as an alternative ground, even though it also

expressed views on the merits. McBee, 929 F. 2d at 267. 

In Petitioner’s sixth claim, he argues that his appellate counsel’s failure to raise

claims three, four, and five on appeal satisfy the “good cause” requirement Mich. Of Ct. R.

6.508(D)(3)(a) and, therefore, excuses his procedural default. (Dkt. # 17, Pg. ID 757.) 

Petitioner, however, has not shown that appellate counsel was ineffective. 

It is well-established that a criminal defendant does not have a constitutional right to

have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,

463 U.S. 745, 751 (1983). 

For judges to second-guess reasonable professional judgments and impose

on appointed counsel a duty to raise every “colorable” claim suggested by a

client would disserve the . . . goal of vigorous and effective advocacy . . . .

Nothing in the Constitution or our interpretation of that document requires

such a standard.

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Id. at 754. Moreover, “[a] brief that raises every colorable issue runs the risk of burying

good arguments . . . in a verbal mound made up of strong and weak contentions.” Id.

753. 

Notwithstanding Barnes, it is possible to raise a claim of attorney error “based on

[appellate] counsel’s failure to raise a particular claim [on appeal], but it is difficult to

demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259, 288

(2000). Strategic and tactical choices regarding which issues to pursue on appeal are

“properly left to the sound professional judgment of counsel.” United States v. Perry, 908

F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the

“process of ‘winnowing out weaker arguments on appeal and focusing on’ those more

likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-52). 

“Generally, only when ignored issues are clearly stronger than those presented will the

presumption of effective assistance of appellate counsel be overcome.” Monzo 

v. Edwards, 281 F. 3d 568, 579 (6th Cir. 2002). 

Petitioner has failed to show that appellate counsel’s performance fell outside the

wide range of professionally competent assistance by omitting the claims that he raised

for the first time in his post-conviction motion for relief from judgment. Appellate counsel

filed an appellate brief which raised the first two claims that Petitioner has presented in

his petition. Petitioner has not shown that appellate counsel’s strategy in presenting

these two claims and not raising other claims was deficient or unreasonable. For the

reasons stated by the Wayne County Circuit Court judge in rejecting petitioner’s postconviction claims (Dkt. # 19-6, Pg. ID 1108-10), none of the claims raised by Petitioner in

his post-conviction motion were “clearly stronger” than those raised on direct appeal. 

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Accordingly, Petitioner has failed to establish cause for his procedural default of failing to

raise these claims on direct review. See McMeans v. Brigano, 228 F. 3d 674, 682-83

(6th Cir. 2000) (holding that “while a different lawyer might have done otherwise, the

decision of the petitioner’s appellate counsel not to assert his Confrontation Clause claim

was not unreasonable and [does not violate the petitioner’s Sixth Amendment rights]”

where the Confrontation Clause arguments was not a “dead bang winner”); Murphy v.

McGee, No. 2:09-cv-10714, 2014 WL 3361846, at *11 (E.D. Mich. July 9, 2014)

(“Because the defaulted claims are not “dead bang winners,” petitioner has failed to

establish cause for his procedural default of failing to raise his third claim on direct

review.”) Because Petitioner failed to establish good cause, it is unnecessary for the

court to reach the prejudice issue. Smith v. Murray, 477 U.S. at 533. 

Moreover, for the reasons stated above and discussed in the trial court’s opinion

(Dkt. # 19-6, Pg. ID 1108-10), the court must reject any independent ineffective

assistance of appellate counsel claim raised by Petitioner based on his appellate

counsel’s failure to raise claims three, four, and five on direct appeal as without merit. 

“[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue that

lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010) (quoting Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). 

Furthermore, Petitioner has not presented any new reliable evidence to support

any assertion of innocence which would allow this court to consider these claims as a

ground for a writ of habeas corpus in spite of the procedural default. The Supreme Court

has held that, “if a habeas petitioner ‘presents evidence of innocence so strong that a

court cannot have confidence in the outcome of the trial unless the court is also satisfied

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that the trial was free of nonharmless constitutional error, the petitioner should be

allowed to . . . argue the merits of his underlying claims.’” Reeves v. Fortner, 490 F.

App’x 766, 769 (6th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). “In

order to establish actual innocence, the petitioner ‘must show that it is more likely than

not that no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.’” Id. (quoting Schulp, 513 U.S. at 327). “The Supreme Court has cautioned that

the actual innocence exception should ‘remain rare’ and ‘only be applied in the

extraordinary case.’” Id. (quoting Schulp, 513 U.S. at 327). 

While Petitioner claims to have an alibi for the time of the crime, the only affidavit

that he has presented in support of this claim is from his cousin Edward Stokes. (Dkt. #

20, Pg. ID 1129-31.) Edward Stokes claimed that he was with Petitioner during the 

morning of the assaults, but admitted that he fell asleep at some point and was awake

for only 80% of the morning. (Id. at 1130.) Even if Edward Stoke’s affidavit were blindly

accepted, it leaves open a window of opportunity for Petitioner to have committed this

murder when Edward Stokes was sleeping, thereby making Petitioner’s purported alibi

witness insufficiently reliable to establish Petitioner’s actual innocence. Because

Petitioner has not presented any new reliable evidence that establishes his actual

innocence, a miscarriage of justice will not occur if the court declines to review the

procedurally defaulted claims on the merits. See Welch v. Burke, 49 F. Supp. 2d 992,

1007 (E.D. Mich. 1999). 

Even if Petitioner had established cause for his default, he would still be unable to

satisfy the prejudice prong of the exception to the procedural default rule, because his

claims would not entitle him to relief. The cause and prejudice exception is conjunctive,

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requiring proof of both cause and prejudice. See Matthews v. Ishee, 486 F. 3d 883, 891

(6th Cir. 2007). For the reasons stated by the trial court, Petitioner has failed to show

that his post-conviction claims have merit. (Dkt. # 19-6, Pg. ID 1108-10.) The reasons

justifying the denial of the claims that Petitioner raised for the first time in his postconviction motion were articulated by the state trial court, and, therefore, a full written

opinion by this court regarding these claims “would be duplicative and serve no useful,

jurisprudential purpose.” Bason v. Yukins, 328 F. App’x 323, 324 (6th Cir. 2009). 

Petitioner is not entitled to habeas relief on his remaining claims. 

D. A Certificate of Appealability.

Before petitioner may appeal this 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 denies a habeas claim on the

merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the court’s assessment of the 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.

at 327. In applying this standard, a court may not conduct a full merits review, but must

limit its examination to a threshold inquiry into the underlying merits of the claim. Id. at

336–37. 

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Having considered the matter, the court concludes that petitioner has not made a

substantial showing of the denial of a constitutional right as to his habeas claims. 

Accordingly, the Court will deny petitioner a certificate of appealability. 

IV. CONCLUSION

IT IS ORDERED that the petition for writ of habeas corpus (Dkt. # 17) is DENIED. 

IT IS FURTHER ORDERED a certificate of appealability is DENIED.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 27, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

on this date, October 27, 2014, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-10171.STOKES.OrderDenyingHabeas.DMI.RHC.wpd

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