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By Order entered this date, Catherine S. Bauman has been substituted in place of Cindi Curtin

as the proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL JERMAIL CRIMES,

Petitioner,

CASE NO. 2:09-CV-10402

v. JUDGE MARIANNE O. BATTANI

MAGISTRATE JUDGE PAUL J. KOMIVES

CATHERINE S. BAUMAN,

Respondent.1

 /

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION ................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner’s Conviction ............................... 4

C. Procedural Default ............................................................ 8

D. Standard of Review ............................................................ 8

E. Sentencing Claims (Claims II & III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. Guidelines Scoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. Right to Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

F. Jury Instructions (Claim VI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

G. Ineffective Assistance of Counsel (Claims I, IV, V & VII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Trial Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

a. Failure to Present Witnesses (Claim I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

b. Failure to Object to Sufficiency of the Evidence (Claim IV) . . . . . . . . . . . . . . . . . . 26

c. Conflict of Interest (Claim V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3. Appellate Counsel (Claim VII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

H. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus and should deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Michael Jermail Crimes is a state prisoner, currently confined at the Alger

Maximum Correctional Facility in Munising, Michigan.

2. On February 10, 2006, petitioner was convicted of one count of armed robbery,

MICH. COMP. LAWS § 750.529; and one count of first degree home invasion, MICH. COMP. LAWS

§ 750.110a, following a jury trial in the Oakland County Circuit Court. On March 23, 2006, he was

sentenced to a term of 16-40 years’ imprisonment on the armed robbery conviction, and to a

concurrent term of 7-20 years’ imprisonment on the home invasion conviction.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claims:

I. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WHERE

HE FAILED TO PRESENT MR. CRIMES’ WITNESSES THEREBY

FAILING TO PRESENT A DEFENSE. MR. CRIMES IS ENTITLED TO

A NEW TRIAL. ALTERNATIVELY, MR. CRIMES IS ENTITLED TO A

GINTHER HEARING IN ORDER TO DEVELOP THE ISSUE.

II. OFFENSE VARIABLES 8 AND 13 WERE WRONGLY SCORED. THE

GUIDELINE RANGE WAS IMPROPERLY INFLATED. MR. CRIMES

IS ENTITLED TO A RESENTENCING WITHIN THE PROPERLY

SCORED GUIDELINES.

Petitioner filed a pro per supplemental brief, raising the following additional claim:

III. THE TRIAL COURT VIOLATED MR. CRIMES’ FEDERAL AND STATE

CONSTITUTIONAL RIGHTS AT SENTENCING BY SCORING OV-1 &

2 OF THE STATUTORY SENTENCING GUIDELINES BASED ON A

MISAPPREHENSION AND IN RELIANCE ON INACCURATE

INFORMATION, WHICH WAS NOT PRESENTED TO THE JURY OR

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ADMITTED BY THE DEFENDANT.

The court of appeals found no merit to petitioner’s claims, and affirmed his conviction and sentence.

See People v. Crimes, No. 270212, 2007 WL 4462377 (Mich. Ct. App. Dec. 20, 2007) (per curiam).

4. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan

Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard

order. See People v. Crimes, 480 Mich. 1189, 747 N.W.2d 290 (2008).

5. On February 2, 2009, petitioner filed an application for the writ of habeas corpus in

this Court, raising the three claims that he raised in the state courts. On March 11, 2009, petitioner

filed a motion to hold his petition in abeyance, so that he could exhaust additional claims in state

court. The Court granted the motion on March 31, 2009.

6. Petitioner returned to state court, filing a motion for relief from judgment in the trial

court pursuant to MICH. CT. R. 6.500-.508 on June 12, 2009. Petitioner’s motion raised the

following claims:

I. DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE

INSUFFICIENCY OF THE EVIDENCE FOR ARMED ROBBERY AND

AIDING AND ABETTOR DEPRIVED DEFENDANT OF HIS SIXTH

AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL.

II. DEFENDANT IS ENTITLED TO A NEW TRIAL WHERE THE RECORD

SHOWS THAT HIS ATTORNEY HAD A CONFLICT OF INTEREST

CREATING A STRUCTURAL DEFECT IN THE TRIAL PROCESS

WHICH DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.

III. THE COURT ERRED AND DEPRIVED DEFENDANT OF HIS RIGHT

TO DUE PROCESS WHEN THE JURY INSTRUCTION ON AIDING

AND ABETTING WAS INCORPORATED INTO THE ARMED

ROBBERY INSTRUCTION WHEN THE PROSECUTION HAD NOT

ADVANCED THE THEORY THAT DEFENDANT WAS AN AIDER AND

ABETTOR, WHEN THE EVIDENCE DID NOT SUPPORT THE

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It does not appear that petitioner raised his second motion for relief from judgment claim,

alleging a conflict of interest, in either application for leave to appeal.

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THEORY.

IV. APPELLATE COUNSEL’S CONSTITUTIONALLY INEFFECTIVE

ASSISTANCE ESTABLISHES “GOOD CAUSE” FOR DEFENDANT’S

FAILURE TO PROPERLY RAISE THESE ISSUES IN HIS PRIOR

APPEAL.

On September 16, 2009, the trial court denied petitioner’s motion for relief from judgment,

concluding that petitioner failed to establish good cause or actual prejudice as necessary to permit

review of his claims pursuant to MICH.CT.R. 6.508(D)(3). The Michigan Court of Appeals denied

petitioner’s application for a leave to appeal in a standard order, “for lack of merit in the grounds

presented.” People v. Crimes, No. 294526 (Mich. Ct. App. Dec. 3, 2009). The Michigan Supreme

Court denied petitioner’s application for leave to appeal in a standard order, based on petitioner’s

“fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v.

Crimes, 487 Mich. 852, 785 N.W.2d 145 (2010).2

7. Petitioner filed a motion to amend and to reopen the case, which the Court granted

on October 5, 2010. As grounds for the writ of habeas corpus, petitioner raises the three claims he

raised on direct appeal and the four claims he raised in his motion for relief from judgment.

8. Respondent filed his answer on April 4, 2011. He contends that petitioner’s fourth

through seventh claims are barred by petitioner’s procedural default in the state courts, and that all

of his claims are without merit.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s convictions arise from the July 6, 2005, robbery of Kathryn Ataman in her

apartment. Petitioner was tried in a joint trial before separate juries with his codefendant Johnaquin

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Keyes. The evidence adduced at trial was accurately summarized in the prosecutor’s brief in

response to petitioner’s motion for relief from judgment, as reproduced in respondent’s answer:

Defendant was charged with armed robbery, MCL 750.529, and first degree

home invasion, MCL 750.110a(2), for events occurring on July 6, 2005. It was

alleged that Defendant and co-defendant Johnaquin Keyes forcibly entered Kathryn

Julia Ataman’s apartment by kicking open the door, that Ataman and her two

children were present at the time, that Defendant and co-defendant demanded money

from Ataman at gunpoint, and that Ataman, being in fear, gave over some money.

(T Vol II 86-95) 

At the time of arraignment, Defendant was represented by attorney Michael

Steinberg. (T 9-8-2005 3) There was some discussion, however, that Defendant had

met with and was considering obtaining a new attorney, Richard Taylor. (T 9-8-2005

3-4) Mr. Steinberg continued to represent Defendant until a hearing was held on

January 23, 2006, before this Court, concerning Mr. Steinberg’s contact at the county

jail with a witness, Jermaine Orlando Jackson. (T 1-23-2006 3-5) Mr. Steinberg

allegedly called Jackson a “snitch” in front of other people at the jail. (T 1-23-2006

11, 13) Apparently an investigation concerning this incident was conducted and

“isn’t going any further.” However, Mr. Steinberg’s privileges to visit anybody in

the jail including his client were revoked. (T 1-23-2006 4) And, there was concern

that Mr. Steinberg may have created a conflict in this case and may be a witness to

contradict Jackson’s testimony and challenge his credibility. (T 1-23-2006 16-36, 76,

78-79) Ultimately, Mr. Steinberg moved to withdraw as counsel. (T 1-23-2006 76)

Defendant agreed and indicated that he was already seeking another attorney. (T 1-

23-2006 77) This Court granted the motion. (T 1-23-2006 77-78) The Court

indicated it had conferred with attorney Richard Taylor and appointed him as the

successor attorney for Defendant. The Court adjourned the matter to February 6,

2006, for trial. (T 1-23-2006 79) 

Defendant’s jury trial was held in February 2006, with this Honorable Court

presiding. The defense maintained that the case was about credibility and that

Defendant was not one of the perpetrators in Ataman’s apartment. The defense did

not deny that what happened to Ataman was true. However, the defense pointed to

several seeming inconsistencies and argued that Defendant’s name came up as one

of the intruders only after Ataman talked to her boyfriend. The defense also

challenged the credibility of inmate Jermaine Jackson, who the defense characterized

as a “professional witness.” (T Vol II 95-102; T Vol V 62-81) The prosecution

maintained that Ataman recognized Defendant as one of the intruders because he had

been to her apartment before and maintained that she did not initially tell the police

Defendant’s identity because she was afraid for the very reasons that Defendant

knew her, knew where she lived and knew she had children. The prosecution also

stressed that Jermaine Jackson, the person to whom Defendant told several unknown

and corroborated facts about the intrusion and robbery, was already convicted and

sentenced in his own case and was promised nothing for his testimony. (T Vol I 86-

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95; T Vol V 49-62, 81-88) 

Kathryn Ataman testified that on July 6, 2005, she and her boyfriend Kurt

Pryor lived with her daughters, Makenzi, 41⁄2 years old, and Kaley, 11⁄2 years old, in

an apartment in Waterford Township. At approximately 7:00 p.m. on that date, only

Ms. Ataman and her daughters were in the apartment. (T Vol III 9-12) The

Defendant and another man kicked in the door to the apartment and entered the

apartment. Ms. Ataman recognized Defendant Crimes because he had been in the

apartment on two or three prior occasions as an acquaintance of Ataman’s boyfriend.

Ms. Ataman identified the other man as being the co-defendant Johnaquin Keyes.

Keyes had a gun and told Ataman to shut up. (T Vol III 13-17) The men took

Ataman away from the outside door of the apartment to a back bedroom in the

apartment. (T Vol III 17) The Defendant was flipping things around and looking in

the closet. The Defendant said to Keyes that Ataman knew where things were and

told the other man to tie Ataman up. (T Vol III 17) Keyes then told Ataman to get on

the ground. (T Vol III 17-18) Keyes put the gun to Ataman’s head and told her to

give them everything. Ataman gave $26 from her pocket to Keyes. (T Vol III 18)

Keyes left, but the Defendant stayed in the apartment and flipped over Ataman’s

mattress and computer desk. The Defendant then went into the bedroom of Ataman’s

daughter. (T Vol III 19-20) The Defendant did not find anything in the daughter’s

bedroom, came out, flipped over a couple of couches and pillows and ran out of the

apartment. (T Vol III 20) The Defendant and Keyes broke into the apartment about

an hour after boyfriend Kurt Pryor left the apartment. (T Vol III 23) 

Ms. Ataman testified further that she called Kurt Pryor and told him that she

had been robbed and then called the police at 911. Pryor arrived back at the

apartment and then Officer Morgan and another officer arrived. (T Vol III 23- 24)

Before the police arrived, Ataman told Pryor that Defendant Crimes was one of the

robbers. Ataman did not tell Officer Morgan that she recognized one of the robbers

because she was afraid if she did so, the robbers might come back. (T Vol III 25-26)

Ataman left the apartment that night and never moved back in. Ataman called Officer

Morgan later that night and left a message for him that Defendant Crimes was one

of the robbers. (T Vol III 25-27) Subsequently, Ataman went into the Waterford

Police Department and told an officer that Defendant Crimes was one of the men

who broke into her apartment. (T Vol III 28-29) Ataman identified co-defendant

Keyes as the man who broke into her apartment with the gun in a photographic array

and in a corporeal lineup. (T Vol III 31-35) 

Kurt Pryor testified that Kathryn Ataman was his girlfriend and they lived in

the Glengarry Apartment Complex with Ataman’s daughters Makenzi and Kaley.

Pryor was Kaley’s father. On July 6, 2005, Pryor was working in his own business

doing brick cleaning and caulking. (T Vol III 79-80) On that date, Pryor had $4,000

with him because he was going to purchase a car. (T Vol III 80-81) The day before,

Pryor’s first cousin Devon Dawson had seen Pryor counting the money in Pryor’s

apartment. (T Vol III 82-83) On that same day, Antonio Jordan, the boyfriend of

Pryor’s cousin, asked Pryor how much money he had saved up. Antonio Jordan’s

street name was Tone. (T Vol III 83-84) On July 6, 2005, Pryor was on his way back

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from purchasing a car in Detroit. Pryor got a call from Ataman who said that she had

been robbed. (T Vol III 86) Pryor got to the apartment just before the police arrived

and Ataman told him that Defendant Crimes was one of the robbers. Pryor knew that

Devon Dawson and Antonio Jordan were friends of the Defendant. (T Vol III 88)

Pryor did not tell the police that the Defendant was one of the robbers because Pryor

intended to confront the Defendant on his own. (T Vol III 89-90) Pryor went with

Ataman the next day to the Waterford Police Department. (T Vol III 95) 

Sergeant Steve Ryner of the Waterford Police Department testified that at

some time after 9:00 p.m. on July 7, 2005, Kurt Pryor and Kathryn Ataman came

into the Waterford Police Department and said that they had new information

concerning the home invasion of their apartment. Sgt. Ryner interviewed Ataman

separately from Pryor and she told him that Defendant Crimes was one of the two

people who robbed her. Ataman said that she did not initially tell the police that she

recognized the Defendant because she feared retribution if she identified someone.

(T Vol IV 88-92) Ataman had earlier left a telephone voice mail for Officer Morgan

with that information. (T Vol III 93) Ataman indicated further that she had moved

out of the apartment and was living with her mother. (T Vol IV 94) 

Jermaine Jackson testified that he was in a ten-man cell with the Defendant

Michael Crimes in the Oakland County Jail. (T Vol IV 113) The Defendant talked

about his case with Jackson. (T Vol IV 114). The Defendant said there was supposed

to be a sum of money in the apartment because Ataman’s boyfriend was a drug

dealer. A man named Devon or “Tone” had told the Defendant about the money in

the apartment. (T Vol IV 119-120) The Defendant knew where the apartment was

because he had been in it with the boyfriend. (T Vol IV 121) The Defendant told

Jackson that he and his friend Mook went into the apartment and demanded money

from the woman. Mook had a gun. (T Vol IV 117) Jackson had not been promised

anything for testifying in this case. (T Vol IV 125) 

Officer Michael Morgan of the Waterford Police Department testified that on

July 6, 2005, he was dispatched to the apartment of Ataman and observed that the

door into the apartment was damaged. Ataman was very upset, but eventually calmed

down and described the robbers. (T Vol IV 168-172) Kurt Pryor arrived at the

apartment about the same time as Officer Morgan. (T Vol IV 170) Ataman did not

initially say that she recognized one of the robbers, but subsequently left him a voice

mail that she recognized one of the robbers as being the Defendant Michael Crimes.

(T Vol IV 177-178) 

Detective Paul Osika of the Waterford Police Department testified that he

was the officer in charge of this case. (T Vol IV 198) Det. Osika interviewed

Jermaine Jackson at the Oakland County Jail on October 3, 2005, and got the name

Mook as a suspect. (T Vol IV 202) Det. Osika was advised by a Pontiac police

officer that Mook was a street name for Johnaquin Keyes. He obtained a photograph

of Johnaquin Keyes and included it in a photo array shown to Ms. Ataman. (T Vol

IV 204-205) Ataman picked out Johnaquin Keyes in the photo array. (T Vol IV 210)

[Defense counsel indicated that he and the Defendant discussed calling Mr.

Jermaine Crimes and Ms. Veronica Crimes as witnesses and that the Defendant

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decided that those individuals should not be called as defense witnesses. (T Vol V

5, 47) The Defendant then rested. (T Vol V 48)] 

On February 10, 2006, the jury found the Defendant guilty as charged of

armed robbery and first degree home invasion. (T Vol VI 5-6)

Answer, at 1-5 (quoting People’s Br. in Opp’n to Mot. for Relief from Judgment, at 1-6). 

C. Procedural Default

Respondent first contends that petitioner’s claims are barred by petitioner’s procedural

default in the state courts, because petitioner failed to raise these claims on direct appeal. Although

petitioner’s claims are defaulted, the Court should conclude that it is necessary to address the claims

on the merits. Even if defaulted, petitioner can still have his claims reviewed on the merits if he can

show cause for, and prejudice attributable to, his default in the state courts. Petitioner contends that

his appellate counsel was ineffective for failing to raise these claims on direct appeal. If petitioner’s

position is correct, counsel’s ineffectiveness may constitute cause to excuse any procedural default.

See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 488 (1986).

To demonstrate that appellate counsel was ineffective petitioner must show, inter alia, that his

claims would have succeeded on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000);

McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996). Given that the cause and prejudice

inquiry merges with an analysis of the merits of petitioner’s defaulted claims, it is better to simply

consider the merits of these claims, even if they are defaulted. See Jamison v. Collins, 100 F. Supp.

2d 647, 676 (S.D. Ohio 2000); Watkins v. Miller, 92 F. Supp. 2d 824, 832 (S.D. Ind. 2000); cf.

Strickler v. Greene, 527 U.S. 263, 282 (1999) (considering merits of petitioner’s habeas claims

where inquiry into the merits mirrored cause and prejudice inquiry).

D. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by

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the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

Amongst other amendments, the AEDPA amended the substantive standards for granting habeas

relief by providing:

(d) 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.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “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 [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535

U.S. at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court

to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694.

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

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precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of

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

the Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the

holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court

decision.’ In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing

legal principle or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529

U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

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

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D.

Mich. 2002) (Tarnow, J.).

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E. Sentencing Claims (Claims II & III)

Petitioner first raises two claims challenging his sentence. In Claim II, petitioner contends

that the sentencing guidelines were improperly scored. In Claim III, he contends that he was denied

his right to a jury trial by the trial court’s scoring of various offense variables. The Court should

conclude that petitioner is not entitled to habeas relief on these claims.

1. Guidelines Scoring

With respect to the scoring of the guidelines, petitioner’s claim is not cognizable on habeas

review. A habeas petitioner’s claim that the trial court violated state law when sentencing him is

not cognizable in habeas corpus proceedings. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.

1988); Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987). Federal habeas courts have no authority

to interfere with perceived errors in state law unless the petitioner is denied fundamental fairness

in the trial process. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan

Department of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Petitioner’s claim that the court

improperly scored or departed from the guidelines range raises issues of state law that are not

cognizable on habeas review. See Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999)

(Gadola, J.) (claim that sentencing court departed from Michigan sentencing guidelines presents an

issue of state law only and is, thus, not cognizable in federal habeas review); Welch v. Burke, 49 F.

Supp. 2d 992, 1009 (E.D. Mich. 1999) (Cleland, J.) (same); see also, Branan, 851 F.2d at 1508

(claim that court misapplied state sentencing guidelines not cognizable on habeas review). Thus,

petitioner is not entitled to habeas relief on his claims relating to the trial court’s scoring of, or

departure from, the Michigan sentencing guidelines.

2. Right to Jury Trial

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Petitioner next contends that the trial court based its sentence on facts which were not proved

by the prosecution beyond a reasonable doubt, in violation of the Supreme Court’s decisions in

Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). In

Apprendi, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In Blakely, the Court considered

the applicability of Apprendi to a state sentencing guidelines scheme similar to the United States

Sentencing Guidelines. The state in that case argued that guidelines findings were not prohibited

by Apprendi because Apprendi prohibited only factual findings at sentencing which increased the

statutory maximum penalty to which the defendant was exposed. The Court in Blakely rejected this

argument and struck down the state guidelines scheme, explaining that:

the “statutory maximum” for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. In other words, the relevant “statutory maximum” is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings. When a judge inflicts

punishment that the jury’s verdict alone does not allow, the jury has not found all the

facts “which the law makes essential to the punishment,” and the judge exceeds his

proper authority.

Blakely, 542 U.S. at 303-04 (citations omitted) (emphasis in original). Finally, in United States v.

Booker, 543 U.S. 220 (2005), the Court took the step logically suggested by Blakely, concluding that

the United States Sentencing Guidelines are unconstitutional under Apprendi because they allow

federal judges to impose sentences based on facts not found by a jury beyond a reasonable doubt.

See Booker, 543 U.S. at 233, 237-43.

Blakely and Apprendi, however, are inapplicable here. Michigan law provides for an

indeterminate sentencing scheme, unlike the determinate sentencing schemes at issue in Blakely and

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Booker. Under Michigan law the defendant is given a sentence with a minimum and a maximum

sentence. The maximum sentence is not determined by the trial judge but is set by law. See People

v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778, 789-90 (2006); People v. Claypool, 470 Mich.

715, 730 n.14, 684 N.W.2d 278, 286 n.14 (2004); MICH. COMP. LAWS § 769.8. “[M]ichigan’s

sentencing guidelines, unlike the Washington guidelines at issue in Blakely, create a range within

which the trial court must set the minimum sentence.” Drohan, 475 Mich. at 161, 715 N.W.2d at

790. Under Michigan law, only the minimum sentence must presumptively be set within the

appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255 n.7, 666

N.W.2d 231, 236 n.7 (2003) (discussing MICH. COMP. LAWS § 769.34(2)). Under Michigan law,

the trial judge sets the minimum sentence, but can never exceed the maximum sentence. See

Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14.

Blakely is inapplicable here because Blakely is concerned only with the maximum penalty

which is authorized by a jury’s findings or a defendant’s plea: if some additional factor increases

the defendant’s penalty beyond that which could be imposed solely on the basis of the jury’s

findings or the defendant’s plea, Blakely requires that those facts be found by a jury beyond a

reasonable doubt (or be themselves pleaded to by a defendant). As explained above, unlike the

guidelines scheme at issue in Blakely, the Michigan sentence guidelines help determine only the

minimum portion of a defendant’s indeterminate sentence. The maximum is, in every case, the

statutory maximum authorized by law. See Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286

n.14; MICH. COMP. LAWS § 769.8. Petitioner’s conviction on the armed robbery charge, therefore,

contained all of the factual findings necessary to impose the statutory maximum (life imprisonment)

on that charge. See Drohan, 475 Mich. at 162, 715 N.W.2d at 790 (“Thus, the trial court’s power

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to impose a sentence is always derived from the jury’s verdict, because the ‘maximum-minimum’

sentence will always fall within the range authorized by the jury’s verdict.”).

This being the case, petitioner’s sentence did not violate Blakely. The Supreme Court has

repeatedly made clear that the Apprendi rule is concerned only with the maximum sentence which

is authorized by a jury’s verdict or a defendant’s plea. As the Supreme Court explained in Harris

v. United States, 536 U.S. 545 (2002):

Apprendi said that any fact extending the defendant’s sentence beyond the maximum

authorized by the jury’s verdict would have been considered an element of an

aggravated crime–and thus the domain of the jury–by those who framed the Bill of

Rights. The same cannot be said of a fact increasing the mandatory minimum (but

not extending the sentence beyond the statutory maximum), for the jury’s verdict

authorized the judge to impose the minimum with or without the finding.

Harris, 536 U.S. at 557. This distinction is important because the only issue under the Sixth

Amendment is whether the judge is impinging on the role of the jury. For this reason, the Court

explicitly excepted indeterminate sentencing schemes such as Michigan’s from its holding in

Blakely. Rejecting an argument raised by Justice O’Connor in dissent, the Court explained:

Justice O’Connor argues that, because determinate sentencing schemes

involving judicial factfinding entail less judicial discretion than indeterminate

schemes, the constitutionality of the latter implies the constitutionality of the former.

This argument is flawed on a number of levels. First, the Sixth Amendment by its

terms is not a limitation on judicial power, but a reservation of jury power. It limits

judicial power only to the extent that the claimed judicial power infringes on the

province of the jury. Indeterminate sentencing does not do so. It increases judicial

discretion, to be sure, but not at the expense of the jury’s traditional function of

finding the facts essential to lawful imposition of the penalty. Of course

indeterminate schemes involve judicial factfinding, in that a judge (like a parole

board) may implicitly rule on those facts he deems important to the exercise of his

sentencing discretion. But the facts do not pertain to whether the defendant has a

legal right to a lesser sentence–and that makes all the difference insofar as judicial

impingement upon the traditional role of the jury is concerned.

Blakely, 542 U.S. at 309 (citation omitted).

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Under this reasoning, it is clear that Michigan’s indeterminate sentencing guideline scheme,

under which the maximum is established by statute and only the minimum term is based on judicial

factfinding, does not violate the Sixth Amendment, as both the Sixth Circuit and the Michigan

Supreme Court have repeatedly held. See Montes v. Trombley, 599 F.3d 490, 496-97 (6th Cir.

2010); Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009); Drohan, 475 Mich. at 164, 715

N.W.2d at 791-92; Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14. Accordingly, the

Court should conclude that petitioner is not entitled to habeas relief on this claim.

F. Jury Instructions (Claim VI)

Petitioner next claims that he was denied a fair trial by the inclusion of an aiding and abetting

instruction which was not supported by the evidence at trial. The Court should conclude that

petitioner is not entitled to habeas relief on this claim.

1. Clearly Established Law

It is well established that habeas corpus is not available to remedy a state court’s error in the

application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we

reemphasize that it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (a

federal court on habeas review “ha[s] no authority to review a state’s application of its own laws).

Thus, in order for habeas corpus relief to be warranted on the basis of incorrect jury instructions, a

petitioner must show more than that the instructions are undesirable, erroneous or universally

condemned; rather, taken as a whole, they must be so infirm that they rendered the entire trial

fundamentally unfair. See Estelle, 502 U.S. at 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154

(1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986); cf. United States v. Sheffey, 57

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F.3d 1419, 1429-30 (6th Cir. 1995) (standard of review for jury instructions challenged on direct

criminal appeal). As the Supreme Court noted in Estelle, the Court should “also bear in mind [the

Supreme Court’s] previous admonition that we ‘have defined the category of infractions that violate

“fundamental fairness” very narrowly.’” Estelle, 502 U.S. at 72-73 (quoting Dowling v. United

States, 493 U.S. 342, 352 (1990)).

2. Analysis

MICH. COMP. LAWS § 767.39 abolished the common law distinction between aiders and

abettors and principals, and provides that aiders and abettors may be prosecuted and convicted as

though they had directly participated in the crime. See People v. Palmer, 392 Mich. 370, 378, 220

N.W.2d 393, 396 (1974). Aiding and abetting under Michigan law requires proof of three elements:

(1) commission of the underlying crime either by the defendant or some other person; (2) acts or

encouragement by the defendant which aided or assisted the commission of the crime; and (3) intent

on the part of the defendant to commit the crime or knowledge by the defendant that the principal

intended to commit the crime at the time aid or encouragement was given. See People v. Acosta,

153 Mich. App. 504, 511-12, 396 N.W.2d 463, 467 (1986) (per curiam). Here, the trial court

instructed the jury on these three elements, explaining that to convict petitioner as an aider and

abettor, it must find beyond a reasonable doubt:

First, that the alleged crime was actually committed, either by the defendant or

someone else. It does not matter whether anyone else has been convicted of the

crime. Second, that before or during the crime, the defendant did something to assist

in the commission of the crime. Third, the defendant must have intended the

commission of the crime alleged or must have known that the other person intended

its commission at the time of giving the assistance.

Trial Tr., Vol. V, at 96-97. This instruction was consistent with Michigan aiding and abetting law

as set forth above, and tracks MICHIGAN CRIMINAL JURY INSTRUCTION 2D 8.1. Judges of this Court

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have repeatedly held that these instructions adequately inform the jury of all the elements of aiding

and abetting liability, including the intent element. See Polk v. Trombley, No. 2:06-CV-10568, 2007

WL 2746614, at *4 (E.D. Mich. Sept. 19, 2007) (Zatkoff, J.); Shepherd v. Howes, No. 05-CV-71936,

2007 WL 551601, at *7 (E.D. Mich. Feb. 20, 2007) (Cleland, J.); Pannell v. McKee, No. 05-71439,

2006 WL 1662805, at *9 (E.D. Mich. June 9, 2006) (Edmunds, J., adopting report of Komives,

M.J.).

The trial court’s initial instructions to the jury tied the aiding and abetting instruction only

to the armed robbery charge. The jury sent a note to the court asking whether aiding and abetting

also applied to the home invasion charge. After hearing the arguments of the parties, the court

concluded that the instruction did apply to the home invasion charge and so instructed the jury. See

Trial Tr., Vol. V, at 109-12. As noted above, an improper jury instruction warrants habeas relief

only when the instructions are so deficient that they render the entire trial fundamentally unfair. See

Estelle, 502 U.S. at 72; Henderson, 431 U.S. at 154. Here, petitioner cannot show that applying the

aiding and abetting instruction to the home invasion charge deprived him of a fair trial. The

prosecution’s theory from the outset was, and the evidence at trial showed, that two perpetrators

committed the home invasion and robbery together. This evidence was sufficient to warrant an

aiding and abetting instruction, and thus petitioner was not denied a fair trial by the trial court’s

giving of such an instruction to the jury.

Petitioner’s brief also suggests that the trial court erred in giving a deadlocked jury

instruction to the jury. At around the same time as the jury requested clarification on the aiding and

abetting issue, the jury also sent a note informing the court that it was deadlocked. In response to

that note, the trial judge instructed:

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Now you sent me a note a little bit later where you said we have conducted

our deliberations according to the guidelines given and are still deadlocked. I know

that reaching agreement is often a difficult effort to accomplish. It’s important for

all of you to listen to each other’s opinions. It’s important for each of you when you

express your opinion to not simply express an opinion, but to give reasons for your

opinion. That’s really the way your fellow jurors can evaluate fully what each of you

believes. So it’s important for you to listen, go over the reasons for why you feel a

certain way about something and then for you to hear from your fellow jurors their

opinion and their reasons.

Often times when you fully discuss each other’s opinions, you are able to

reason this out together and you will be able to come to a decision that reflects a

unanimous view. It’s only natural that there will be differences of opinion from time

to time, but I think when you talk things over in the spirit of fairness and frankness

and when you explain yourselves fully, you have an excellent chance of coming to

a unanimous decision. I don’t want anyone to give up his or her honest belief about

the weight or affect of the evidence only because other jurors think differently or

only for the sake of reaching agreement. Nobody should surrender their honest

belief about this case. At the same time I don’t think anyone should hesitate to

change his or her views, to change his or her opinion if you decide that that view is

wrong based on what you’re hearing from your fellow jurors. After all, that’s why

we do have a jury of 12 people so that all of you can consider each other’s views and

hopefully come to a unanimous decision.

I am going to at this point because of the lateness of the hour send you home

for the day. I want everybody to have a good dinner, a good night’s sleep and I want

you to come back tomorrow morning at 8:30. It’s very important that we make every

reasonable effort, every reasonable effort to try to come to a unanimous decision, so

that is what I’m going to ask you to please do and I want to thank you all for working

so hard, I know you have been working hard, I’ve got that ‘cause you’re sending us

out some good questions that means you are thinking very, very hard about this case

and we all appreciate that. I know you have been attentive throughout the trial, so

thank you very, very much for your good work and I look forward to seeing you

again tomorrow at 8:30.

Trial Tr., Vol. V, at 113-15.

Petitioner cannot show that he was deprived of a fair trial by this instruction. It is well

established that “[a] judge may encourage jurors who are having difficulty reaching a verdict to

deliberate longer[.]” United States v. Straach, 987 F.2d 232, 242 (5th Cir. 1993) (citing Allen v.

United States, 164 U.S. 492 (1896)). Such an instruction is improper only if it “unduly coerces the

minority into surrendering its views for the purpose of reaching a verdict, or sets a time limit for the

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deliberations.” Id. (internal quotation omitted). Here, the trial judge simply instructed the jury to

continue deliberations. He did not indicate that the jury should reach a particular result, or that any

juror should sacrifice his or her own views; in fact, he instructed just the opposite. The courts have

uniformly held that this type of neutral instruction is not coercive. As the Eleventh Circuit has

explained: “The judge’s simple request that the jury continue to deliberate . . . was routine and

neutral. Nothing in the brief instruction suggested that a particular outcome was either desired or

required and it was not ‘inherently coercive.’” United States v. Prosperi, 201 F.3d 1335, 1341 (11th

Cir. 2000). Likewise, the Seventh Circuit has explained that “an instruction to continue to deliberate

after the jury had declared that it had reached an impasse is perfectly content neutral and carries no

plausible potential for coercing the jury to surrender their honest opinions for the mere purpose of

returning a verdict.” United States v. Kramer, 955 F.2d 479, 489 (7th Cir. 1992) (internal quotations

omitted); accord United States v. Frazin, 780 F.2d 1461, 1470-71 (9th Cir. 1986).

In short, the instruction lacked any of the traditional indicia of a coercive instruction: the

court did not mention the expense of a retrial; the court did not suggest that any juror abandon his

or her sincerely held views; the court did not instruct or suggest that the jury had to reach a

particular verdict, or indeed any verdict at all, but only that the jury should try to reach a verdict, if

possible; and the instruction was not given in an atmosphere of frustration over the deadlock. Thus,

the instruction was not coercive. See United States v. Nelson, 137 F.3d 1094, 1109-10 (9th Cir.

1998). Further, the jury deliberated for about three hours after the instruction was given and

following an overnight respite–about one hour longer than it had deliberated prior to advising the

court that it was deadlocked–which suggests that the instruction prompted continued deliberation,

rather than coercing any juror into merely surrendering his or her views. See United States v.

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Whatley, 133 F.3d 601, 605 (8th Cir. 1998); United States v. Rodriguez-Mejia, 20 F.3d 1090, 1092

(10th Cir. 1994). Accordingly, the Court should conclude that petitioner is not entitled to habeas

relief on this claim.

G. Ineffective Assistance of Counsel (Claims I, IV, V & VII)

Petitioner next contends that he received constitutional inadequate assistance of counsel in

a number of respects. In Claim I, petitioner argues that counsel was ineffective for failing to present

witnesses. In Claim IV, he argues that counsel was ineffective for failing to challenge the

sufficiency of the evidence. In Claim V, petitioner contends that trial counsel was laboring under

a conflict of interest. Finally, in Claim VII, petitioner argues that his appellate counsel was

ineffective for failing to raise his fourth through sixth habeas claims on direct appeal. The Court

should conclude that petitioner is not entitled to habeas relief on these claims.

1. Clearly Established Law

The Sixth Amendment right to counsel and the right to effective assistance of counsel protect

the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s errors were

so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. These

two components are mixed questions of law and fact. Id. at 698. Further, “[t]here is no reason for

a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.” Id. With respect to the performance prong of the Strickland test, a strong presumption

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exists that counsel’s behavior lies within the wide range of reasonable professional assistance. See

id. at 689; see also O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). “[D]efendant must

overcome the presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted). “[T]he court should recognize

that counsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. With respect to the

prejudice prong, the reviewing court must determine, based on the totality of the evidence before

the factfinder, “whether there is a reasonable probability that, absent the errors, the factfinder would

have had a reasonable doubt respecting guilt.” Id. at 695. It is petitioner’s burden to establish the

elements of his ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818,

833 (6th Cir. 1995) (petitioner bears the burden of establishing counsel’s ineffectiveness); Lewis v.

Alexander, 11 F.3d 1349, 1352 (6th Cir. 1993) (same).

As the Supreme Court has recently explained, Strickland establishes a high burden that is

difficult to meet, made more so when the deference required by § 2254(d)(1) is applied to review

a state court’s application of Strickland:

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ----, ----, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An

ineffective-assistance claim can function as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial, and so the Strickland standard must

be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the

integrity of the very adversary process the right to counsel is meant to serve.

Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the

standard for judging counsel’s representation is a most deferential one. Unlike a later

reviewing court, the attorney observed the relevant proceedings, knew of materials

outside the record, and interacted with the client, with opposing counsel, and with

the judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone,

535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell,

506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether

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an attorney’s representation amounted to incompetence under “prevailing

professional norms,” not whether it deviated from best practices or most common

custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and §

2254(d) are both “highly deferential,” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy,

521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two

apply in tandem, review is “doubly” so, Knowles, 556 U.S., at ----, 129 S.Ct. at 1420.

The Strickland standard is a general one, so the range of reasonable applications is

substantial. 556 U.S., at ----, 129 S.Ct. at 1420 . Federal habeas courts must guard

against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.

Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

2. Trial Counsel

a. Failure to Present Witnesses (Claim I)

Petitioner contends that counsel was ineffective for failing to call five witnesses at trial:

attorney Arnie Weiner and defendant’s other cellmate, Claude Boling; Kathy Jenson, a neighbor of

the victim; and petitioner’s stepbrother and stepmother. The Court should conclude that petitioner

is not entitled to habeas on these claims.

“Complaints of uncalled witnesses are not favored in federal habeas review.” Marler v.

Blackburn, 777 F.2d 1007, 1010 (5th Cir. 1985); Aponte v. Scully, 740 F. Supp. 153, 158 (E.D.N.Y.

1990). As one court has explained:

The decision whether to call any witnesses on behalf of the defendant, and if so

which witnesses to call, is a tactical decision of the sort engaged in by defense

attorneys in almost every trial. [Defendant] does not identify any witnesses that his

counsel should have called who would have been helpful. Defense counsel’s

conduct in this regard appears to fall within the wide range of reasonable

professional representation. Decisions whether to engage in cross examination, and

if so to what extent and in what manner, are similarly strategic in nature.

United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987); accord Reese v. Fulcomer, 946 F.2d

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247, 257 (3d Cir. 1991) (counsel’s performance not deficient where counsel did not call alibi witness

whose testimony could have been damaging); United States v. Porter, 924 F.2d 395, 397 (1st Cir.

1991) (decision not to call witnesses who could have incriminated defendant within scope of

informed professional judgment). Further, it is petitioner’s burden to establish the elements of his

ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818, 833 (6th Cir. 1995)

(petitioner bears the burden of establishing counsel’s ineffectiveness); Lewis v. Alexander, 11 F.3d

1349, 1352 (6th Cir. 1993) (same). Thus, “a petition for habeas corpus relief based on counsel’s

failure to call witnesses must present this evidence in the form of the actual testimony by the witness

or affidavits.” United States ex rel. Townsend v. Young, No. 01 C 0800, 2001 WL 910387, at *5

(N.D. Ill. Aug. 8, 2001) (citing United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)); see also,

Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007); Dows v. Woods, 211 F.3d 480, 486 (9th

Cir. 2000). At the outset, petitioner has failed to provide any evidentiary support, by affidavit or

otherwise, to substantiate his claims regarding the testimony that would have been offered by the

missing witnesses, and he is therefore not entitled to habeas relief.

More specifically, it is clear from the record that the Michigan Court of Appeals reasonably

concluded that counsel’s failure to call these witnesses did not amount to ineffective assistance of

counsel. Turning first to petitioner’s stepbrother and stepmother, petitioner has failed to

demonstrate that counsel performed deficiently by failing to call these witnesses, or that they could

have offered exculpatory alibi testimony such that he was prejudiced by the failure to call them at

trial. At trial, counsel informed the court that he had discussed with petitioner calling these two

witnesses, and that petitioner had elected not to call them. See Trial Tr., Vol. V, at 47. In an

affidavit attached to the prosecutor’s response to petitioner’s motion for new trial, counsel

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elaborated that he had interviewed petitioner’s stepbrother and stepmother and “determined that they

could not account for Michael Crimes’ whereabouts at the actual time of the offenses.” Answer to

Mot. for New Trial, in People v. Crimes, No. 05-204052-FC (Oakland County, Mich., Cir. Ct.), Ex.

A, Aff. of Richard Terrell Taylor, ¶ 4 [hereinafter “Taylor Aff.”]. At the hearing on petitioner’s

motion for a new trial, petitioner’s appellate counsel indicated that he had tried to contact the

witnesses, but had only been able to contact petitioner’s stepbrother, who “was not helpful.” Mot.

Hr’g Tr., dated 2/28/07, at 4. Counsel indicated that he therefore could not “make in good faith at

this point the argument those alibi witnesses would have been useful.” Id. Based on these

submissions, the trial court concluded that “there was a reasonable basis for [counsel’s] decision

regarding which witnesses to call.” Opinion & Order Re: Def.’s Mot. for a New Trial, in People v.

Crimes, No. 05-204052-FC (Oakland County, Mich., Cir. Ct.), at 4. On appeal, the Michigan Court

of Appeals determined that petitioner had waived the issue based on appellate counsel’s assertion

at the hearing on the motion for new trial, and that in any event petitioner could not establish his

claim because he failed to submit an affidavit from either witness. See Crimes, 2007 WL 4462377,

at *1. In light of petitioner’s failure to provide any evidence from these witnesses suggesting that

they would have testified favorably to petitioner at trial, trial counsel’s affidavit averring that the

witnesses could not provide an alibi, and appellate counsel’s assertion that the purported alibi

witnesses were not helpful, petitioner cannot show that counsel performed deficiently by failing to

call these witnesses at trial or that he was prejudiced thereby.

Turning to Weiner and Boling, petitioner contends that these witnesses would have

impeached Jermaine Jackson’s testimony that petitioner admitted the crimes to him while they were

incarcerated together. Specifically, Weiner would have testified that he gave police reports about

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the crime to Jackson to pass along to petitioner, thus suggesting that Jackson learned the details of

the crime from these reports rather than from an admission made by petitioner. Boling, the other

cell mate of Jackson and petitioner, would have testified that petitioner and Jackson never had a

private conversation. Again, petitioner has failed to present any affidavit or other evidence

corroborating that these witnesses would have so testified. And, in any event, the record establishes

that counsel was not ineffective for failing to call these witnesses. In his post-trial affidavit, trial

counsel averred both that petitioner “told him that he did have conversations in the jail with Mr.

Jermaine Jackson,” and that Jackson “was aware of details of the offenses which were not contained

in the police reports.” Taylor Aff., ¶¶ 5-6. Evidence at trial corroborated this latter assertion. As

explained by the Michigan Court of Appeals, “police officers testified that until Jackson came

forward, no one knew the identity of the second robber.” Crimes, 2007 WL 4462377, at *2.

Further, “it was Jackson who first disclosed the possible involvement of” two other people, and he

“supplied an alleged ‘hit list’ written by defendant that listed [their] telephone numbers, which were

not contained in the police reports or preliminary examination transcript.” Id. As the court of

appeals reasonably determined, “[i]n light of this evidence, Weiner’s testimony would have done

little to impeach Jackson’s credibility.” Likewise, in addition to petitioner’s admission that he had

private conversations with Jackson, the court of appeals reasonably concluded that “trial counsel

reasonably should have expected that the jury would have difficulty believing that Boling could

possibly account for [petitioner’s] and Jackson’s presence at all times,” particularly in light of the

information Jackson was able to provide that was not contained in the police reports. Id.

Finally, petitioner cannot show that counsel was ineffective for failing to call Jensen.

According to petitioner, Jensen would have testified that she saw only one man leaving the victim’s

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apartment, contradicting the victim’s testimony that there were two robbers. However, as the court

of appeals explained, Jensen’s police statement showed that she “could not see the door of the

victim’s second floor apartment,” and the victim testified that petitioner and the second robber left

the apartment at separate times. Id. Thus, Jensen’s testimony would have done little, if anything,

“to impeach the victim’s testimony that there were two robbers.” Id. Further, counsel could have

reasonably concluded that calling Jensen would have done more harm than good, in light of the fact

that petitioner “fit the description of the man that Jensen saw.” Id.

In short, petitioner has failed to provide any affidavit or other evidence indicating what the

missing witnesses would have testified to if they had been called at trial, and the record demonstrates

that counsel had reasonable bases for refusing to call the witnesses. Thus, the Michigan Court of

Appeals’s resolution of this ineffective assistance claim was a reasonable application of Strickland,

and petitioner is therefore not entitled to habeas relief.

b. Failure to Object to Sufficiency of the Evidence (Claim IV)

Petitioner next contends that trial counsel was ineffective for failing to object to the

sufficiency of the evidence at trial. Presumably, petitioner is arguing that counsel should have filed

a motion for a directed verdict at the conclusion of the evidence. The Court should conclude that

petitioner is not entitled to habeas relief on this claim.

To show that he was prejudiced by counsel’s failure to move for a directed verdict, petitioner

must show that the evidence adduced at trial was constitutionally insufficient to sustain his

conviction. See Hurley v. United States, 10 Fed. Appx. 257, 261 (6th Cir. 2001); Maupin v. Smith,

785 F.2d 135, 140 (6th Cir. 1986); Burston v. Caldwell, 506 F.2d 24, 28 (5th Cir. 1975). In

reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the

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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). Reviewing courts must view the evidence, draw inferences and

resolve conflicting inferences from the record in favor of the prosecution, see Neal v. Morris, 972

F.2d 675, 678 (6th Cir. 1992), and must give circumstantial evidence the same weight as direct

evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993).

Here, there was more than sufficient evidence to sustain petitioner’s conviction. The victim

testified that petitioner, whom she knew and identified at trial, broke into her apartment and robbed

her at gunpoint. This evidence alone, if believed by the jury, was sufficient to support petitioner’s

conviction. See United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir. 2005) (“Even in the face

of inconsistent evidence, a victim’s testimony alone can be sufficient to support a guilty verdict.”);

United States v. Mejia, 909 F.2d 242, 245 (7th Cir. 1990); Holderfield v. Jones, 903 F. Supp. 1011,

1017 (E.D. La. 1995). It is well-established that a reviewing court, whether on direct appeal or

habeas review, “do[es] not make credibility determinations in evaluating the sufficiency of the

evidence.” United States v. Owusu, 199 F.3d 329, 344 (6th Cir. 2000); Walker v. Russell, 57 F.2d

472, 475-76 (6th Cir. 1995); see also, United States v. Bailey, 444 U.S. 394, 414-15 (1980) (“It is

for [jurors] and not for appellate courts to say that a particular witness spoke the truth or fabricated

a cock-and-bull story.”). “The fact that the testimony is contradictory does not mean that evidence

is insufficient, only that the jury must make credibility determinations.” Government of the Virgin

Islands v. Isaac, 50 F.3d 1175, 1179 (3d Cir. 1995). It is the job of the jury, not this Court sitting

on habeas review, to resolve conflicts in the evidence, and this Court must presume that the jury

resolved those conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326; United States

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v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). Here, the victim’s testimony, if believed,

established the necessary elements of the offenses charged against petitioner. Whether to believe

the victim was for the jury, not for the Michigan Court of Appeals or for this Court on habeas

review. Further, the victim’s testimony was corroborated by the testimony of Jermaine Jackson

that petitioner had confessed the crimes to him. Again, in reviewing the sufficiency of the

evidence, the Court must presume that the jury resolved any credibility issues in favor of

Jackson’s testimony.

Because the evidence presented at trial was sufficient, petitioner cannot show that he was

prejudiced by counsel’s failure to file a motion for a directed verdict. Accordingly, the Court should

conclude that petitioner is not entitled to habeas relief on this claim.

c. Conflict of Interest (Claim V)

Petitioner next claims that he was denied his right to counsel because counsel was operating

under a conflict of interest. The Court should conclude that petitioner is not entitled to habeas relief

on this claim.

An “actual conflict of interest results if the defense attorney was required to make a choice

advancing his own interests to the detriment of his client’s interests.” Stoia v. United States, 22 F.3d

766, 770 (7th Cir. 1994) (internal quotation omitted); accord Bonin v. Calderon, 59 F.3d 815, 827

(9th Cir. 1995). In order to show such a conflict, petitioner must “‘point to specific instances in the

record to suggest an actual conflict or impairment of [his] interests.’” United States v. Hall, 200

F.3d 962, 965-66 (6th Cir. 2000) (quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987)

(internal quotation omitted)); accord Riggs v. United States, 209 F.3d 828, 831-32 (6th Cir. 2000).

An “adverse effect” is established where the defendant points to “some plausible alternative defense

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strategy or tactic [that] could have been pursued, but was not because of the actual conflict impairing

counsel’s performance.” Perillo, 205 F.3d at 781 (internal quotation omitted); accord Stoia, 22 F.3d

at 771 (quoting Wilson v. Mintzes, 761 F.2d 275, 286 (6th Cir. 1985)).

Here, on the date originally scheduled for trial, petitioner’s then-counsel informed the court

that an incident had occurred between he and Jackson at the Oakland County Jail over the previous

weekend, in which he had called Jackson a “snitch” in front of other detainees. As a result, the

Oakland County Sheriff conducted a criminal examination and revoked counsel’s privileges to visit

detainees in the jail. Although the prosecutor represented to the trial court that the investigation had

been completed and no criminal charges were contemplated, counsel indicated that he was hampered

in his ability to defend petitioner because he could not visit at the jail. Further, after hearing

testimony from Jackson regarding the incident, the court concluded that Jackson’s account differed

from that of petitioner’s counsel. Because of this, a situation could arise whereby counsel would

be a necessary witness at trial. Based on these factors, the trial court appointed substitute counsel

and adjourned the trial. Petitioner contends that because his counsel was facing potential criminal

charges by the same prosecutor, counsel was laboring under a conflict of interest which adversely

affected his representation.

It is likely that the pending criminal charges against petitioner’s first counsel gave rise to a

conflict of interest. See, e.g., United States v. Levy, 25 F.3d 146, 156 (2d Cir. 1994). This fact,

however, does not entitled petitioner to habeas relief because the trial court immediately cured the

problem. The immediate appointment of substitute counsel cured any adverse affect arising from

counsel’s conflict. See United States v. Hernandez, 333 F.3d 1168, 1175 (10th Cir. 2003); United

States v. Luciano, 158 F.3d 655, 661 (2d Cir. 1998); cf. Norris v. Schotten, 146 F.3d 314, 331-32

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(6th Cir. 1998). Except for the very brief period between initial counsel’s conduct at the jail during

the weekend, at which time the conflict arose, and his withdrawal the following Monday, petitioner

was at all times provided “representation that [was] free of any actual conflict of interest with

counsel.” United States v. Ziegenhagen, 890 F.2d 937, 939 (7th Cir. 1989). Petitioner does not

point to, nor does the record reveal, anything of substance that happened during the one or two days

in which counsel was laboring under a conflict of interest that adversely affected any aspect of

petitioner’s defense.

Further, although petitioner does not expressly make such an argument I note that petitioner

cannot claim that the withdrawal of his counsel based on the conflict of interest violated his Sixth

Amendment right to counsel of his choice. The Sixth Amendment provides, in relevant part, that

“[i]n all criminal prosecutions the accused shall enjoy the right . . . to have the Assistance of Counsel

for his defense.” U.S. CONST. amend. VI. This right contemplates a corollary right to the counsel

of one’s choice. As the Supreme Court has explained, “‘the Sixth Amendment guarantees a

defendant the right to be represented by an otherwise qualified attorney whom that defendant can

afford to hire, or who is willing to represent the defendant even though he is without funds.’”

United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin & Drysdale, Chartered

v. United States, 491 U.S. 617, 624-25 (1989)). Thus a criminal defendant who has the desire and

the financial means to retain his own counsel generally “‘should be afforded a fair opportunity to

secure counsel of his choice.’” Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1351 (6th Cir.

1993) (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). This right, however, is not absolute,

and “is circumscribed in several important respects.” Wheat v. United States, 486 U.S. 153, 159

(1988); see also, Gonzalez-Lopez, 548 U.S. at 144. Two of those limitations are applicable here.

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First, “the right to counsel of choice does not extend to defendants who require counsel to

be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). Because

petitioner required the appointment of counsel, he had no right to the counsel of his choice. Second,

a trial court retains “wide latitude in balancing the right to counsel of choice against the needs of

fairness,” and has “an ‘independent interest in ensuring that criminal trials are conducted within the

ethical standards of the profession and that legal proceedings appear fair to all who observe them.’”

Gonzalez-Lopez, 548 U.S. at 152 (quoting Wheat v. United States, 486 U.S. 153, 160 (1988)). Thus,

where counsel is laboring under an actual conflict of interest the court may disqualify counsel, even

where counsel is retained or where the defendant waives the conflict of interest. See Wheat, 486

U.S. at 162-63; United States v. Puryear, 719 F. Supp. 2d 571, 573-74 (W.D. Pa. 2010).

With the exception of a one or two day window in which nothing of substance in petitioner’s

case occurred, petitioner was represented by an attorney who was representing no interest in conflict

with a vigorous defense of petitioner. Accordingly, the Court should conclude that petitioner is not

entitled to habeas relief on this claim.

3. Appellate Counsel (Claim VII)

Finally, petitioner contends that his appellate counsel was ineffective for failing to raise his

motion for relief from judgment claims on direct appeal. To establish prejudice in the appellate

counsel context, petitioner must show a reasonable probability that his claims would have succeeded

on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); McCleese v. United States, 75 F.3d

1174, 1180 (7th Cir. 1996). As explained above, each of petitioner’s claims is without merit, and

thus petitioner cannot make this showing. Accordingly, the Court should conclude that petitioner

is not entitled to habeas relief on this claim.

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H. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides

that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge

issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that

“[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). As the Sixth Circuit has noted, this

language represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S.

880 (1983), and “[t]he AEDPA thus makes no change to the general showing required to obtain a

certificate[.]” Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack

v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a

“substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously

less than the burden for establishing entitlement to the writ; otherwise, a certificate could never

issue. Rather, the courts that have considered the issue have concluded that “‘[a] substantial

showing requires the applicant to “demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues (in a different manner); or that the questions are adequate to

deserve encouragement to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893

n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, “[t]he new

Act does, however, require that certificates of appealability, unlike the former certificates of

probable cause, specify which issues are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C.

§ 2253(c)(3)).

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Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

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

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of

Federal Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not

issue.” FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory

committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either

grant or deny the certificate of appealability at the time of its final adverse order, I include a

recommendation regarding the certificate of appealability issue here.

2. Analysis

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the

Court should also deny petitioner a certificate of appealability, for the reasons explained above. It

is clear that petitioner’s sentencing guidelines claim is not cognizable on habeas review, and that

Blakely does not apply to Michigan’s indeterminate sentencing scheme. Thus, the resolution of

petitioner’s sentencing claims is not reasonably debatable. Likewise, the jury instructions given by

the court comported with Michigan law, were supported by the evidence, and did not coerce the jury

to return a verdict, and thus the resolution of petitioner’s instructional error claim is not reasonably

debatable. With respect to petitioner’s ineffective assistance of counsel claims, petitioner has failed

to provide any support for his claim that various witnesses would have testified in his favor, and the

record establishes either that counsel had good reason not to call the witnesses or that they would

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not have provided materially favorable testimony. Further, the record clearly establishes that the

prosecution presented sufficient evidence, and that the trial court immediately remedied any conflict

of interest which developed by substituting new counsel. Thus, the resolution of petitioner’s

ineffective assistance of trial counsel claims is not reasonably debatable. Finally, because the

resolution of petitioner’s underlying claims is not reasonably debatable, the resolution of petitioner’s

derivative ineffective assistance of appellate counsel claim likewise is not reasonably debatable.

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

I. Conclusion

In view of the foregoing, the Court should conclude that the state courts’ resolution of

petitioner’s claims did not result in a decision which was contrary to, or which involved an

unreasonable application of, clearly established federal law. Accordingly, the Court should deny

petitioner’s application for the writ of habeas corpus. If the Court accepts this recommendation, the

Court should also deny petitioner a certificate of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

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231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 6/14/11

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on June 14, 2011.

s/Eddrey Butts 

Case Manager

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