UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOSHUA MICHAEL MARCHANT,

Petitioner,

v.

SHERRY BURT,

Respondent.

/

Case Number: 2:08-CV-14616

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Joshua Michael Marchant has filed a pro se petition for a writ of

habeas corpus, challenging his conviction for possession of less than 25 grams of

cocaine. He argues that the conviction is unconstitutional because it was based on

insufficient evidence, and because he was denied his right to present a defense and

received ineffective assistance of counsel. For the reasons set forth below, the court

denies the petition.

I. FACTS

The Michigan Court of Appeals summarized the facts adduced at trial leading to

Petitioner’s conviction as follows:

Defendant’s conviction arises from the discovery of cocaine during the

execution of a search warrant at James Broughton’s home on September 12,

2005. Three individuals were present when members of the Oakland County

Narcotics Enforcement Team entered the home. The first person the team

encountered was Gregory Mehlhorn, who was closest to the front door.

Defendant stood in front of a couch on which a young female was sitting. A

digital scale, hand scale, and plastic baggies were on top of an end table next

to the couch. Three packages of crack cocaine were discovered on the floor,

behind the end table and against a wall. It appeared to Detective Kevin
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 Petitioner was paroled on July 15, 2010.

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Cronin of the Farmington Hills Police Department that the packages were

thrown behind the end table. Defendant was the closest individual to the

packages. Sergeant Brent Miles of the Oakland County Sheriff’s Department

interviewed [D]efendant after he was arrested. Defendant told Sergeant

Miles that he and Mehlhorn used cocaine for the past three days, that

Mehlhorn bought that cocaine found in the trailer home, and that he planned

to smoke the cocaine with Mehlhorn later that day.

People v. Marchant, No. 269427, slip op. at 1 (Mich. Ct. App. July 31, 2007).

II. PROCEDURAL HISTORY

Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of

possession of less than 25 grams of cocaine. On March 7, 2006, he was sentenced as

a fourth habitual offender to 18 months to 15 years’ imprisonment.1

Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the

following claims:

I. Defendant was deprived of the right to present a defense when, due

to the trial court’s ruling and trial counsel’s ineffectiveness, he was

precluded from presenting evidence showing he was not in

possession of the cocaine. 

II. The prosecutor failed to present sufficient evidence of possession of

cocaine and defendant has been denied due process of law. 

III. The trial court erred in failing to give the mere presence instruction

when the evidence presented showed that he had no knowledge that

Mehlhorn was in possession of the cocaine. 

The Michigan Court of Appeals affirmed Petitioner’s conviction. People v.

Marchant, No. 269427 (Mich. Ct. App. July 31, 2007).
3

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

raising the same claims raised in the Michigan Court of Appeals and the following

additional claims:

I. Appellate counsel was ineffective.

II. The circuit court judge abused his discretion and misused his authority

by ignoring and neglecting case law by allowing this case to go to trial.

The case law clearly demonstrates that the case did not have

sufficient grounds to go to trial and should have been dismissed.

III. The trial judge abused his discretion by not suppressing the alleged

confession at the Walker hearing.

The Michigan Supreme Court denied leave to appeal. People v. Marchant, No.

134825 (Mich. Jan. 24, 2008).

Petitioner then filed the pending petition for a writ of habeas corpus. He raises

the following claims:

I. The prosecution failed to present sufficient evidence that Petitioner

was in possession of the cocaine in question, in violation of

Petitioner’s rights under the Fourteenth Amendment’s due process

clause. The adjudication of this claim by the state courts therefore

resulted in a decision that is contrary to, and/or constituted an

unreasonable application of, clearly established federal law, as

determined by the United States Supreme Court in Jackson v.

Virginia, 443 U.S. 307 (1979), and which was based on an

unreasonable determination of the facts in light of the evidence

presented at trial.

II. Petitioner was deprived of his right to present a defense as a result of

the trial court’s arbitrary application of M.C.R. 6.201(J), which

precluded him from calling a witness whose testimony was relevant

and material to his defense, and the state courts’ adjudication of this

claim resulted in a decision that is contrary to, and/or constituted an

unreasonable application of, clearly established federal law, as

determined by the United States Supreme Court in Washington v.

Texas, 388 U.S. 14 (1967), and its progeny.
4

III. As an alternative to habeas claim two, Petitioner contends he was

deprived of the effective assistance of counsel guaranteed by the

Sixth Amendment via trial counsel’s failure to timely submit a witness

list naming Mehlhorn, and the state courts’ adjudication of this claim

resulted in a decision that is contrary to, and/or constituted an

unreasonable application of, clearly established federal law, as

determined by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), and/or was based on an

unreasonable determination of the facts in light of the evidence

presented in the trial court.

III. STANDARD

28 U.S.C. § 2254(d) 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 proceedings. 

28 U.S.C. § 2254(d). Additionally, this court must presume the correctness of state

court factual determinations. 28 U.S.C. § 2254(e)(1).

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 federal habeas court may not “issue the writ simply because that court
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concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” Id. at 410-11. 

IV. DISCUSSION

A. Sufficiency of the Evidence

In his first claim for habeas relief, Petitioner argues that insufficient evidence was

presented to sustain his conviction. Specifically, Petitioner argues that the prosecutor

failed to establish beyond a reasonable doubt that he had possession of the cocaine.

“[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, the

standard of review for 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). “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.

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

422, 434 (1983)). “The mere existence of sufficient evidence to convict therefore

defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.

Under Michigan law, possession of a controlled substance requires a showing of 

“dominion or right of control over the drug with knowledge of its presence and

character.” People v. McKinney, 258 Mich. App. 157, 165 (2003) (internal quotation

omitted). “Possession may be either actual or constructive, and may be joint as well as

exclusive.” Id. at 166. Mere presence where the controlled substance was found is

insufficient to establish possession; rather, an additional connection between the

defendant and the controlled substance must be established. People v. Wolfe, 440

Mich. 508, 520 (1992), modified, 441 Mich. 1201 (1992). Constructive possession

exists when the totality of the circumstances indicates a sufficient nexus between the

defendant and the controlled substance. Id. at 521. 

The Michigan Court of Appeals held that sufficient evidence was presented to

show possession of the cocaine, reasoning, in relevant part:

“[W]hen determining whether sufficient evidence has been presented to

sustain a conviction, a court must view the evidence in a light most favorable

to the prosecution and determine whether any rational trier of fact could have

found that the essential elements of the crime were proven beyond a

reasonable doubt.” People v. Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748

(1992), amended 441 Mich. 1201 (1992). . . . 

Here, defendant’s statements to Sergeant Miles that he used cocaine with

Mehlhorn for the past three days, knew about the cocaine found in the trailer

home and intended to use it with Mehlhorn, combined with Detective Quinn’s

testimony that defendant was found in close proximity to the cocaine,

supports a reasonable inference that defendant had at least a right to control

the cocaine and knew of its presence. Viewed in a light most favorable to the

prosecution, the evidence was sufficient for a rational trier of fact to find

beyond a reasonable doubt that defendant jointly and constructively

possessed the cocaine with Mehlhorn.
7

Marchant, slip op. at 3.

The Michigan Court of Appeals, although not specifically citing Jackson, clearly

cited case law incorporating the Jackson standard. Considered in the light most

favorable to the prosecution, the evidence presented at trial, most notably Petitioner’s

statement to police, clearly supported a finding that the prosecutor established beyond a

reasonable doubt that Petitioner was in possession of the cocaine. Therefore, the court

finds that the state court’s holding was not contrary to or an unreasonable application of

Supreme Court precedent.

B. Right to Present a Defense and Ineffective Assistance of Counsel

Next, Petitioner argues that he was denied his right to present a defense when

the trial court denied his request to adjourn the trial to transport Mehlhorn from a

correctional facility to the courthouse. Contrary to the trial court’s discovery order

requiring the defense to provide the prosecutor with a witness list by fourteen days prior

to trial, Mehlhorn was not named as a witness until after trial commenced.

Respondent argues that this claim is procedurally defaulted and, therefore, may

not be reviewed on its merits by this court. “Federal review is barred altogether by the

doctrine of procedural default when ‘a petitioner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural rule.’” Middlebrooks v.

Bell, 2010 WL 3419445, at *6 (6th Cir. Sept. 1, 2010) (quoting Mitchell v. Mason, 325

F.3d 732, 738 (6th Cir. 2003)). Procedural default applies if the following requirements

are met: 

first, the procedural rule applied to the petitioner and he failed to follow it;

second, the state court actually denied his claim based on the state

procedural rule; and third, the rule constituted an adequate and independent
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state ground to deny relief, meaning that the rule was firmly established and

regularly followed in the state courts.

Id. (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). If the requirements are

satisfied, procedural default may be excused if a petitioner either demonstrates cause

for the default and actual prejudice, or demonstrates that failure to consider the claims

will result in a fundamental miscarriage of justice. Id. (citing Murphy v. Ohio, 551 F.3d

485, 502 (6th Cir. 2009)).

Trial counsel failed to object to the trial court’s decision not to grant an

adjournment to allow the presence of Mehlhorn on the ground that it violated Petitioner’s

due process right to present a defense. The Michigan Court of Appeals, because of

counsel’s failure to object on this basis, reviewed the claim only under the more

restrictive “plain error” standard of review. It is now well-established that the Michigan

Court of Appeals’ application of plain-error review constitutes the invocation of an

independent and adequate procedural rule that bars federal review of the merits of his

claim absent a showing of “cause and prejudice.” See Fleming v. Metrish, 556 F.3d

520, 530 (6th Cir. 2009).

To establish “cause,” a petitioner must show that “some objective factor external

to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”

Haylim v. Mitchell, 492 F.3d 680, 690-91 (6th Cir. 2007) (quoting Murray, 477 U.S. at

488). “Prejudice . . . requires a showing that errors at trial ‘worked to [the petitioner’s]

actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.’” Id. at 690-91 (quoting United States v. Frady, 456 U.S. 152, 168 (1982)).
9

Petitioner alleges ineffective assistance of trial counsel as cause to excuse his

procedural default. “Attorney ignorance or inadvertence is not ‘cause’ because the

attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the

litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that

constitutes ineffective assistance of counsel is cause, however.” Coleman v.

Thompson, 501 U.S. 722, 753-54 (1991). 

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

established a two-pronged test for determining whether a habeas petitioner has

received ineffective assistance of counsel. First, a petitioner must prove that counsel’s

performance was deficient. 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. Second, a petitioner must show that counsel’s deficient

performance prejudiced petitioner. 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 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, 129 S. Ct. 1411, 1419 (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 1420 (internal quotation omitted).
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The Michigan Court of Appeals held that Petitioner failed to establish that

counsel was ineffective in failing to comply with the trial court’s discovery order. The

state court considered the prejudice prong of Strickland first and concluded that

Petitioner was not prejudiced by his attorney’s actions. The state court reasoned that

Petitioner had the burden of establishing the factual predicate for his claim and failed to

make an offer of proof regarding Mehlhorn’s testimony. Additionally, the state court

concluded that, even accepting Mehlhorn’s preliminary examination testimony, in which

he stated the cocaine was his, as an offer of proof, Petitioner failed to establish

prejudice. The state court noted that the judge who presided over the preliminary

examination specifically found Mehlhorn not to be a credible witness. The state court

further noted that the investigating police officer testified that Mehlhorn’s story as to

where the cocaine was and where he put it was inconsistent with the location of the

cocaine when police entered the premises. Mehlhorn repeatedly told police and

testified that Petitioner was like a son to him and he did not want Petitioner to get into

trouble. Finally, Petitioner’s own testimony that he had been using cocaine with

Mehlhorn for three days prior to the raid supported a finding that he was in joint

possession of the cocaine. Marchant, slip op. at 2-3.

The Michigan Court of Appeals, although not citing Strickland, cited case law

incorporating the Strickland standard. The court finds that the state court’s decision

was not contrary to or an unreasonable application of Strickland. Although counsel

should have complied with the trial court’s discovery order, Petitioner has failed to show

a reasonable probability that, if Mehlhorn had testified, the result of the proceeding

would have been different.
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Thus, Petitioner has failed to establish cause to excuse his procedural default,

and his claim is barred unless he can establish that a constitutional error resulted in a

fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

The Supreme Court explicitly has tied the miscarriage of justice exception to

procedural default to a petitioner’s innocence. Id. at 321. Thus, Petitioner must assert

a constitutional error along with a claim of innocence. To make a showing of actual

innocence, “a petitioner must show that it is more likely than not that no reasonable juror

would have found the petitioner guilty beyond a reasonable doubt.” Id. at 327. The

Court further explained this standard as follows:

The . . . standard is intended to focus the inquiry on actual innocence. In

assessing the adequacy of petitioner’s showing, therefore, the district court

is not bound by the rules of admissibility that would govern at trial. Instead,

the emphasis on “actual innocence” allows the reviewing tribunal to consider

the probative force of relevant evidence that was either excluded or

unavailable at trial. . . . The habeas court must make its determination

concerning the petitioner’s innocence in light of all the evidence, including .

. . evidence tenably claimed to have been wrongly excluded or to have

become available only after trial.

. . . .

. . . [A]ctual innocence does not merely require a showing that a reasonable

doubt exists in the light of the new evidence, but rather that no reasonable

juror would have found the defendant guilty. It is not the district court’s

independent judgment as to whether reasonable doubt exists that the

standard addresses; rather the standard requires the district court to make

a probabilistic determination about what reasonable, properly instructed

jurors would do. Thus, a petitioner does not meet the threshold requirement

unless he persuades the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a

reasonable doubt.

Id. (internal quotation omitted).
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Petitioner fails to present new, reliable evidence in light of which no reasonable

juror would have found him guilty. Therefore, his claim that he was denied his right to

present a defense is barred from consideration by procedural default and his ineffective

assistance of counsel claim is denied.

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) (citation omitted). In this case, the court concludes that reasonable

jurists would not debate the court’s 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

The petitioner has not shown he is incarcerated in violation of federal law as

determined by the Supreme Court.
S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-14616.MARCHANT.deny habeas.mbc.RHC.wpd

13

Accordingly, it is ORDERED that the petition for a writ of habeas corpus [Dkt. # 1]

is DENIED. 

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

 S/Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: September 30, 2010

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

on this date, September 30, 2010, by electronic and/or ordinary mail.

 S/Lisa Wagner

Case Manager and Deputy Clerk

(313) 234-5522