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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANDY NGUYEN,

Petitioner,

CASE NO. 5:09-CV-10607

v. HONORABLE JOHN CORBETT O’MEARA

UNITED STATES DISTRICT JUDGE

NICK J.LUDWICK,

Respondent.

_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 

Andy Nguyen, (“Petitioner”), presently confined at the Mound Correctional

Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28

U.S.C. § 2254. In his application, filed by attorney Kenneth M. Mogill, petitioner

challenges his conviction for assault with intent to commit murder, M.C.L.A. 750.83; and

felony-firearm, M.C.L.A. 750.227b. For the reasons stated below, the application for writ

of habeas corpus is DENIED.

I. Background

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

County Circuit Court. This Court recites verbatim the relevant facts relied upon by the

Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28

U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

In October 2005, defendant and his then wife, Nhung Le, stopped living with

one another. Le went to work for Dung Hong, the owner of the Golden Nail

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 According to defendant, who moved to the United States from Vietnam, when he arrived in America he

wanted to exercise his freedom and learn how to use a firearm. (Footnote original). 

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Salon in Westland. She also lived with Hong and his wife, Ha Thi To, for a

two-month period after moving out of the marital home. According to Le,

defendant did not want her to work at the salon.

On January 7, 2006, defendant came to the salon with his brother. According

to To, defendant told her that she had two weeks to fire Le, or else there would

be consequences. The police were called and an officer then called defendant

and told him that if he returned to the salon he would be arrested. Defendant

responded by telling the officer that he would return to the salon. Later that

day, defendant did go back to the salon and the police were again called to the

scene. Defendant testified that he did not threaten anyone on January 7, 2006,

and that he went to the salon to offer his wife money to move out of the state.

On February 25, 2006, defendant purchased a firearm. 1

 Defendant took his

newly purchased firearm to the Dearborn Heights Police Station on February

28, 2006, to get his safety certificate. After receiving the certificate, defendant

went to the firing range. When defendant left the range, he put his gun in his

pocket and had two clips of ammunition remaining.

While driving home, defendant decided to go to the Golden Nail Salon to once

again offer Le money to leave the state. According to defendant, Le wanted

to move out of Michigan. Defendant entered the front door of the salon and

asked To where Hong was. Defendant claims that he asked for Hong so that

he could ask Hong for permission to talk with Le. To informed defendant that

Hong was in the salon’s back room.

There is conflicting testimony about the events that occurred after defendant

entered the salon’s back room. According to Hong, he was sitting in the back

room eating lunch, and when he looked up, defendant was standing near him

and pointing a gun at him. Defendant then told Hong that he was going to kill

him. Hong then heard a clicking noise, implying that defendant pulled the

trigger on the gun and the gun misfired. Hong then tackled defendant as he

was attempting to reload the weapon. Le similarly testified that she saw

defendant pull out the firearm and then heard a clicking noise before Hong

tackled him. The two men wrestled for the firearm and at least four shots were

fired. Hong testified that he eventually wrestled the firearm away from

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defendant. At that time, defendant ran out the back door of the salon and Hong

ran out the front door.

According to defendant, he entered the back room and had a conversation with

Le, who was vacuuming at the time. During the conversation, defendant was

standing with his back to Hong. Defendant told Le that Hong was using her

and that she should leave the salon. Hong then struck defendant in the back

of the head with a hard object. Hong tackled defendant and a struggle ensued.

In an attempt to force Hong to retreat, defendant pulled his gun from his

pocket. According to defendant, he brought the firearm into the salon because

the lock on his car door was not working. Hong grabbed for the firearm and

the two continued to wrestle over the gun for five minutes. Hong eventually

gained control over the weapon. He then tried to shoot defendant but missed,

striking the ceiling. Hong then fired a second shot at defendant, who ducked

and avoided the bullet. Defendant then fled out the back of the salon, with

Hong firing two more shots at him as he ran. According to defendant, he never

fired the weapon at the salon.

While several witnesses saw the two men wrestling for the weapon, none of

them saw which man fired the shots.

People v. Nguyen, No. 274031, * 1-2 (Mich.Ct.App. March 13, 2008).

Petitioner’s conviction was affirmed on appeal. Id.; lv. den. 482 Mich. 896, 753

N.W.2d 178 (2008). 

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Where, as here, numerous witnesses had minimal ability to understand or

express themselves in English, and where a qualified translator was present

and available, it was a substantial violation of Petitioner’s right to due process,

confrontation, and a fair trial for the trial court not to require that a translator

be used as to the witnesses’ entire testimony rather than sporadically.

II. Petitioner was deprived of a fair trial due to prosecutorial misconduct where

the prosecutor filed a false notice under MRE 404(b) and made a false and

unsupported argument during opening statement that Petitioner had threatened

to kill three people, including the complainant, during an alleged earlier

incident.

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III. Petitioner was deprived of his rights to due process and confrontation

where the trial court barred defense counsel from confronting prosecution

witnesses with defense evidence rebutting the prosecution’s MRE 404(b)

allegations.

IV. The trial court’s failure to instruct on petitioner’s right to use non-deadly

force in self-defense deprived Petitioner of due process.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas

cases: 

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 proceeding.

A decision of a state court is “contrary to” clearly established federal law if the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Supreme Court has

on a set of materially indistinguishable facts. 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.” Id. at 409. A

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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 410-11.

The Supreme Court has explained that “[A] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a

‘highly deferential standard for evaluating state-court rulings,’and ‘demands that

state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S.Ct. 1855,

1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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, 131

S.Ct.770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court has emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. ( citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas court must determine what

arguments or theories supported or...could have supported, the state court’s decision; and

then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the

Supreme Court. Id. 

“[I]f this standard is difficult to meet, that is because it was meant to be.”

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Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the

AEDPA, does not completely bar federal courts from relitigating claims that have

previously been rejected in the state courts, it preserves the authority for a federal court

to grant habeas relief only “in cases where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with” the Supreme Court’s precedents.

Id. Indeed, “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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5

(1979))(Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief

in federal court, a state prisoner is required to show that the state court’s rejection of his

claim “was so lacking in justification that there was an error well understood and

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

Harrington, 131 S. Ct. at 786-87. 

III. Discussion

A. Claim # 1. The intermittent translation claim.

Petitioner first claims that his due process right to a fair trial and his right to

confrontation was violated because the trial judge urged several of the witnesses, who

were natives of Vietnam, to try to answer the lawyers’ questions in English and to only

use a court interpreter, who was available, when they were unable to effectively

communicate in the English language.

Respondent contends that petitioner’s first claim is procedurally defaulted

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because counsel failed to preserve the issue at trial and as a result, the Michigan Court of

Appeals reviewed the claim for plain error only. Petitioner, on the other hand, contends

that the claim was preserved for appeal, because both the prosecutor and defense counsel

did bring the potential language difficulties of the witnesses to the trial judge’s attention

and urged him to employ the intepreter to translate from English to Vietnamese and back

again.

In the present case, although defense counsel did not formally object to the

sporadic use of an interpreter for these witnesses, both he and the prosecutor did bring

the potential linguistic difficulties of these witnesses to the judge’s attention. The

Supreme Court has observed that “[a]n objection which is ample and timely to bring the

alleged federal error to the attention of the trial court and enable it to take appropriate

corrective action is sufficient to serve legitimate state interests, and therefore sufficient

to preserve the claim for review.” Douglas v. State of Ala., 380 U.S. 415, 422 (1965). 

Indeed, “[N]o legitimate state interest” is served “by requiring repetition of a patently

futile objection,” which has been rejected several times, “in a situation in which repeated

objection might well affront the court or prejudice the jury beyond repair.” Id. By

bringing the witnesses’ potential linguistic difficulties to the attention of the judge,

defense counsel arguably preserved this issue for appellate review, in spite of the

Michigan Court of Appeals’ finding to the contrary. See e.g. Gonzalez v. U.S., 697 A.2d

819, 823-24 (D.C. App. 1997)(issue of interpreter competence was sufficiently preserved

for appellate review where defendant brought mistranslation to court’s attention, which

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permitted court to take corrective measures); United States v. Urena, 27 F. 3d 1487,

1491-92 (10th Cir. 1994)(specific, contemporaneous objections to mistranslations, though

preferable, are not required; generalized objections are sufficient).

Moreover, this Court notes that procedural default is not a jurisdictional bar to

review of a habeas petition the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In

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

deciding 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 light of the complexity of

the procedural default issue, the Court deems it more efficient in this case to proceed

directly to the merits of petitioner’s claim.

In reviewing petitioner’s claim for plain error, the Michigan Court of Appeals

rejected petitioner’s claim:

While the trial court certainly appears to have had a strong preference for the

Vietnamese-speaking witnesses to testify without an interpreter where

possible, the court clearly instructed each witness that if they were unable to

proceed in English, they should indicate such to the trial court so that the

interpreter could assist them. Based on a review of the record, each of the

Vietnamese witnesses does appear to struggle with the English language at

times. However, in each such instance, the interpreter would be used or the

attorneys would re-word the questions in a simpler form. At no point were

the witnesses unintelligible or incomprehensible. As a result, it cannot be said

that the trial court abused its discretion in establishing a preference for

unaided testimony. Therefore, defendant cannot establish a plain error that

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affected his substantial rights.

Nguyen, Slip. Op. at * 3.

Habeas corpus relief is available only if a petitioner can demonstrate that a trial

court’s action regarding the use of an interpreter denied petitioner a fundamentally fair

trial. Montano v. Shelton, 961 F. Supp. 252, 255 (D. Kan. 1997)(citing United States v.

Sanchez, 928 F. 2d 1450, 1455 (6th Cir. 1991)). Normally, however, rulings on the

appointment and qualifications of an interpreter do not reach constitutional proportions.

See Fairbanks v. Cowan, 551 F. 2d 97, 99 (6th Cir. 1977). 

The Court has reviewed the testimony of the three prosecution witnesses, Nhung

Le (Tr. 8/29/2006, pp. 101-122); Ha Thi To (Id. at pp. 123-146); Dung Hong (Tr.

8/30/2006, pp. 20-49), as well as petitioner’s own testimony.(Id. at pp. 57-111). All of

the witnesses appeared able to respond appropriately to questions asked of them in

English by either the judge or the attorneys. Although each of the witnesses at times

struggled with the English language, when the witness had difficulty with a question or

with giving an answer, the interpreter was employed or the attorney would re-phrase the

question. The trial judge never prevented the witnesses from utilizing the services of the

interpreter, but merely asked each witness to answer in English if they could. The judge

further advised each witness that if they had problems with a particular question or with

giving an answer, they could ask the interpreter to translate for them. 

In the present case, the intermittent use of the interpreter to translate the questions

and answers for the witnesses did not deny petitioner a fair trial, in light of the fact that

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each witness “credibly maintained the central thread of his [or her] testimony” during

direct and cross-examination. See U.S. v. Damra, 621 F. 3d 474, 498 (6th Cir.

2010)(district court’s error in appointing the government’s lead criminal investigator as

an interpreter for a government witness, in defendant’s trial, did not affect the outcome

of the proceedings, as required to constitute plain error; government witness credibly

maintained the central thread of his testimony, both while being cross-examined by

defendant and while being asked questions on direct examination the previous day,

before the lead criminal investigator was appointed); See also United States v. Camejo,

333 F. 3d 669, 673 (6th Cir. 2003)(district court’s failure to replace an interpreter who

was “not a model of clarity and efficiency” was not plain error requiring reversal when

the court addressed any problems in interpretation as they arose). 

In light of the fact that the witnesses were able to adequately communicate in the

English language and were able to utilize the services of a Vietnamese interpreter when

they could not do so, this Court concludes that petitioner is unable to establish that the

Michigan Court of Appeals’ rejection of his first claim “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786-87. Petitioner is

not entitled to habeas relief on his first claim. 

B. Claim # 2. The prosecutorial misconduct claim.

Petitioner next contends that he was denied a fair trial when the prosecutor stated

during his opening statement that the evidence would show that petitioner had 

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previously threatened the lives of his wife, Ha Thi To, and Dung Hong. 

Respondent contends that petitioner’s claim is procedurally defaulted, because he

failed to object to the remarks at trial. Petitioner argues that his trial counsel was

ineffective for failing to object to the prosecutor’s alleged misconduct. Ineffective

assistance of counsel may establish cause for procedural default. Edwards v. Carpenter,

529 U.S. 446, 451-52 (2000). Given that the cause and prejudice inquiry for the

procedural default issue merges with an analysis of the merits of petitioner’s defaulted

claim, it would be easier to consider the merits of this claim. See Cameron v. Birkett, 348

F. Supp. 2d 825, 836 (E.D. Mich. 2004). 

“Claims of prosecutorial misconduct are reviewed deferentially on habeas

review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). Prosecutorial

misconduct will form the basis for habeas relief only if the conduct was so egregious as

to render the entire trial fundamentally unfair based on the totality of the circumstances.

Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). The determination whether

the trial was fundamentally unfair is “made by evaluating the totality of the

circumstances surrounding each individual case.” Angel v. Overberg, 682 F. 2d 605, 608

(6th Cir. 1982). The Court must focus on “‘the fairness of the trial, not the culpability of

the prosecutor.’” Pritchett v. Pitcher, 117 F. 3d 959, 964 (6th Cir. 1997)(quoting Serra v.

Michigan Dep't of Corr., 4 F. 3d 1348, 1355 (6th Cir. 1993)). Finally, “[t]he Supreme

Court has clearly indicated that the state courts have substantial breathing room when

considering prosecutorial misconduct claims because ‘constitutional line drawing [in

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prosecutorial misconduct cases] is necessarily imprecise.’” Slagle v. Bagley, 457 F. 3d

501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. at 645). In deciding whether

prosecutorial misconduct mandates that habeas relief be granted, a federal court must

apply the harmless error standard. See Pritchett v. Pitcher, 117 F. 3d at 964. 

In rejecting petitioner’s claim, the Michigan Court of Appeals concluded:

The record indicates the prosecutor had a good faith belief that defendant

threatened Le, To, and Hong and made repeated attempts during trial to elicit

testimony regarding that threat. If the prosecutor had described the potential

evidence in his opening statement in bad faith, it is doubtful that he would

have continuously questioned the witnesses regarding the alleged threat and

provided them numerous opportunities to inform the jury that no such threat

was ever made. While the prosecutor was not able to establish that any threat

was made on the lives of Hong, To and Le, defendant has failed to show his

comment during his opening statement was made in bad faith.

Additionally, defendant cannot establish that he was prejudiced by the

prosecutor’s comments. Before the prosecutor’s opening statement, the trial

court explained to the jurors that they alone were the finders of fact and that

the facts were to be determined by the evidence. The trial court continued

and explained that the statements of the attorneys were not to be considered

as evidence. At the close of trial and before deliberation, the trial court once

again instructed the jurors that they should base their decision on the evidence

and specifically stated that the opening statements were not part of the

evidence. “Jurors are presumed to follow their instructions, and instructions

are presumed to cure most errors.” Even if it was improper for the prosecutor

to indicate that he would establish that defendant had made threats to the lives

of Hong, To, and Le on a prior occasion, defendant has not established that

the statement denied him a fair trial because he has not shown that the trial

court's instructions were insufficient to cure any alleged error.

Nguyen, Slip. Op. at * 4 (internal citation omitted).

Not every variance between the advanced description of the prosecutor in the

opening statement of the summary of the testimony that he expects to introduce and the

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actual presentation constitutes reversible error, when a proper limiting instruction is

given. See Frazier v. Cupp, 394 U.S. 731, 736 (1969). In the present case, the trial court

instructed the jurors both at the beginning and the end of trial that the lawyers’ opening

statements were not evidence. (Tr. 8/29/2006, p. 9; Tr. 8/30/2006, p. 146). A jury must

be presumed to have followed a trial court’s instructions. See Weeks v. Angelone, 528

U.S. 225, 234 (2000). In this case, any variance between the prosecutor’s opening

statement and the evidence introduced at trial did not prejudice petitioner, in light of the

trial court’s limiting instruction to the jury. See United States v. Campbell, 317 F. 3d

597, 606-07 (6th Cir. 2003)(prosecutor's opening statement in narcotics prosecution,

which referred to expected testimony of witness who subsequently did not testify at trial,

did not prejudice defendants, where jury was instructed that statements of attorneys were

not evidence, and there was no indication that the jury was unable to follow the court’s

instructions). 

Petitioner further claims that the prosecutor committed misconduct by referring to

petitioner’s “warped, evil sense of honor” in both his opening and closing statements,

and by referring to petitioner as an “evil aggressor” in his closing statement. The

Michigan Court of Appeals rejected petitioner’s claim:

While the prosecutor's classification of defendant as evil was indeed

intemperate, it was not prejudicial. It appears that the prosecution secured

defendant’s conviction on the basis of the strong eyewitness testimony of

Hong and Le. Defendant does not establish that the result of the proceedings

would have differed but for the comments of the prosecutor. Further, as

stated above, the trial court instructed the jury on not considering the

statements of the attorneys as evidence. Defendant has not demonstrated that

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the jurors disregarded the trial court’s instructions.

Nguyen, Slip. Op. at * 4-5. 

The prosecutor’s brief comments that petitioner was “evil” did not rise to the level

of a constitutional violation. See Hutchison v. Bell, 303 F. 3d 720, 750-51 (6th Cir.

2002)(denying habeas claim of prosecutorial misconduct based on references to

defendant as having “evil ways” and being “an evil force”). This would be particularly

so in light of the fact that the jurors were instructed that the lawyers’ arguments were not

evidence. Moreover, in light of the strong evidence against petitioner, the prosecutor’s

comments were harmless error at worst. Petitioner is not entitled to habeas relief on his

second claim.

C. Claim # 3. The right to present a defense claim.

Petitioner next contends that he was deprived of his right to present a defense

when the trial judge did not allow him to introduce evidence concerning his wife’s

ineligibility to work in the United States. Petitioner claims that this evidence would have

established that petitioner believed that the victim Dung Hong was employing his wife

illegally. In turn, petitioner argues that evidence that petitioner believed that his wife

was being employed illegally would have established that he did not previously threaten

to kill Hong nor did he intend to kill him on the day in question. Petitioner further

contends that this evidence would establish that the victim was the aggressor. 

In rejecting this claim, the Michigan Court of Appeals indicated: 

Defendant’s appeal is based on the false premise that the trial court excluded

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all testimony regarding the meaning of his statement on January 7, 2006,

when he told To and Hong that there would be consequences if Le continued

to work at Hong’s salon. In reality, the trial court properly excluded two

questions to To, each of which asked her to speak to the mindset or intention

of Hong or defendant. Before that, the trial court allowed To to answer a

question regarding Le’s work status that did not call for speculation. To

testified that she did not know Le’s work status. There is no evidence that the

trial court would have excluded questions to defendant, Hong, or Le regarding

work status. Defense counsel’s decision to not further pursue the issue of

Le’s work status with other witnesses may represent a strategic decision or

may be the result of trial counsel’s misunderstanding regarding the trial

court’s position on the issue. In either instance, it cannot be said that the trial

court abused its discretion in excluding evidence of Le’s work status when it

was merely excluding questions that were asked in an improper form.

Nguyen, Slip. Op. at * 5.

Just as an accused has the right to confront the prosecution’s witnesses for the

purpose of challenging their testimony, he also has the right to present his own witnesses

to establish a defense. This right is a fundamental element of the due process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967); See also Crane v. Kentucky, 476 U.S. 683,

690 (1986)(“whether rooted directly in the Due Process Clause of the Fourteenth

Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity

to present a complete defense’”)(internal citations omitted). However, an accused in a

criminal case does not have an unfettered right to offer evidence that is incompetent,

privileged, or otherwise inadmissible under the standard rules of evidence. Montana v.

Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court, in fact, has indicated its

“traditional reluctance to impose constitutional constraints on ordinary evidentiary

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rulings by state trial courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial

court judges “wide latitude” to exclude evidence that is repetitive, marginally relevant,

or that poses a risk of harassment, prejudice, or confusion of the issues. Id. (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Finally, rules that exclude

evidence from criminal trials do not violate the right to present a defense unless they are

“‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” United

States v. Scheffer, 523 U.S. 303, 308 (1998)(quoting Rock v. Arkansas, 483 U.S. 44, 56

(1987)). 

Moreover, under the standard of review for habeas cases as enunciated in §

2254(d)(1), it is not enough for a habeas petitioner to show that the state trial court’s

decision to exclude potentially helpful evidence to the defense was erroneous or

incorrect. Instead, a habeas petitioner must show that the state trial court’s decision to

exclude the evidence was “an objectively unreasonable application of clearly established

Supreme Court precedent.” See Rockwell v. Yukins, 341 F. 3d 507, 511-12 (6th Cir.

2003).

In the present case, the trial court judge’s decision to preclude defense counsel

from asking questions to Ms. To which called for her to speculate about the mindset of

her husband or petitioner did not deprive petitioner of a fair trial, because testimony

beyond the witness’s personal knowledge would have violated M.R.E. 602 and was

therefore properly excluded under the rules of evidence. See McCullough v. Stegall, 17

Fed. Appx. 292, 296 (6th Cir. 2001). 

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Moreover, the trial court judge did not prohibit defense counsel from asking Le,

Hong, or petitioner about whether Le was employed illegally by Hong and whether this

was the actual cause of friction between the victim and petitioner. Instead, it appears

that for whatever reason, counsel decided to forego asking any of the other witnesses this

line of questioning. Petitioner cannot convert a tactical decision not to introduce

evidence into a constitutional violation of the right to present evidence generally. See

Rodriguez v. Zavaras, 42 F. Supp. 2d 1059, 1150 (D. Colo. 1999); See also State v.

Flood, 219 S.W. 3d 307, 318 (Tenn. 2007)(“Generally, the right to present a defense is

not denied when a defendant does not pursue a line of questioning during

cross-examination”). Petitioner is not entitled to habeas relief on his third claim.

D. Claim # 4. The instructional error claim.

Petitioner lastly claims that the trial court erred in failing to give the jury an

instruction on self-defense.

Respondent contends that petitioner’s claim is procedurally defaulted, because

counsel agreed that a self-defense instruction was not called for in this case. Petitioner

argues that his trial counsel was ineffective for acquiescing to the trial judge’s ruling that

the facts of the case did not call for a self-defense instruction. As mentioned when

discussing petitioner’s second claim above, because the cause and prejudice inquiry for

the procedural default issue merges with an analysis of the merits of petitioner’s

defaulted claim, it would be easier to consider the merits of this claim. See Cameron v.

Birkett, 348 F. Supp. 2d at 836.

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The burden of demonstrating that an erroneous instruction was so prejudicial that

it will support a collateral attack upon the constitutional validity of a state court

conviction is even greater than the showing required in a direct appeal. The question in

such a collateral proceeding is whether the ailing instruction so infected the entire trial

that the resulting conviction violates due process, not merely whether the instruction is

undesirable, erroneous, or even “universally condemned”, and an omission or incomplete

instruction is less likely to be prejudicial than a misstatement of the law. Henderson v.

Kibbee, 431 U.S. 145, 154-55 (1977). A habeas petitioner’s burden of showing

prejudice is especially heavy when a petitioner claims that a jury instruction was

incomplete, because an omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law. See Hardaway v. Withrow, 305 F. 3d 558, 565

(6th Cir. 2002).

A defendant is entitled to a jury instruction as to any recognized defense for

which there exists evidence sufficient for a reasonable juror to find in his or her favor.

Mathews v. United States, 485 U.S. 58, 63 (1988). When there is evidentiary support for

a defendant’s theory of self-defense, a failure to instruct the jury on self-defense violates

a criminal defendant’s Fifth and Sixth Amendment rights. Everette v. Roth, 37 F. 3d 257,

261 (7th Cir. 1994). Under Michigan law, one acts lawfully in self-defense if he or she

honestly and reasonably believes that he or she is in danger of serious bodily harm or

death, as judged by the circumstances as they appeared to the defendant at the time of the

act. Blanton v. Elo, 186 F. 3d 712, 713, fn. 1 (6th Cir. 1999)(citing to People v. Heflin,

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434 Mich. 482; 456 N. W. 2d 10 (1990)). 

In the present case, although petitioner claimed that he pulled the gun out after the

victim had hit him with an object, he further testified that the victim grabbed the gun

away from him during a struggle and that it was the victim who fired the gun. Petitioner

testified that he did not fire the weapon. 

In Taylor v. Withrow, 288 F. 3d 846 (6th Cir. 2002), a case almost directly on

point, the Sixth Circuit held that state trial court’s ruling that there was no evidence of

justified self-defense, and its consequent refusal to instruct the jury on self-defense and

imperfect self-defense, did not involve either an unreasonable determination of the facts

or an unreasonable application of clearly established federal law, so as to warrant habeas

relief, where the petitioner testified at his murder trial that he pulled his gun as a

defensive act but that he did not intentionally shoot the victim to defend himself, and

that, instead, the gun discharged accidently. Id. at 853-54. In so ruling, the Sixth Circuit

noted that under Michigan caselaw, a defendant cannot claim justified self-defense as a

defense to homicide unless the defendant claims that the killing was intentional. Id. at

853(internal citation omitted). 

In the present case, petitioner testified that he never fired the weapon. Because

there was no evidence that petitioner shot the weapon, the trial court judge’s

determination that there was no evidence to support a self-defense instruction was not an

unreasonable application of clearly established federal law or an unreasonable

determination of the facts. Petitioner is not entitled to habeas relief on his fourth claim.

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IV. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will also

deny a certificate of appealability to petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or 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,

483-84 (2000). When a district court rejects a habeas petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims to be debatable or wrong. Id. at

484. “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.

For the reasons stated in this opinion, the Court will deny petitioner a certificate

of appealability because he has failed to make a substantial showing of the denial of a

federal constitutional right with respect to any of the claims. See Allen v. Stovall, 156 F.

Supp. 2d 791, 798 (E.D. Mich. 2001).

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

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

s/John Corbett O’Meara 

United States District Judge

Date: March 15, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of

record on this date, March 15, 2011, using the ECF system.

s/William Barkholz 

Case Manager

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