UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TYRELL LADON RICHARDSON,

Petitioner, Case No. 09-11088

v. 

HON. AVERN COHN

DEBRA L. SCUTT,

Respondent.

_________________________________/

MEMORANDUM AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Petitioner, Tyrell Ladon

Richardson, is a state inmate confined at the G. Robert Cotton Correctional Facility. 

Petitioner is serving a sentence of three concurrent terms of 210-to-480 months for his

conviction of three counts of carjacking, M.C.L. § 750.529(a), 40-to-60 months for his

conviction of felonious assault, M.C.L. § 750.82, 21-to-48 months for his conviction of

carrying a concealed weapon, M.C.L. § 750.227, and consecutive two-year terms for

four counts of felony-firearm, M.C.L. § 750.227b. Petitioner claims he is being held in

custody in violation of his constitutional rights. For the reasons which follow, the petition

will be denied.

II. Background

The Court recites verbatim the relevant facts relied upon by the Michigan Court

of Appeals, which are presumed correct on habeas review. See 28 U.S.C. §

2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

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Defendant's convictions arose from three carjacking incidents that

occurred near Farmington Hills, Michigan on August 13, 2005. On the

night of the carjackings, defendant pulled into a gas station parking lot in a

dark-colored Buick and approached Oleksiy Bolyukh, who was driving a

silver gray BMW with an Illinois license plate. While Bolyukh was pumping

gas, defendant approached him, held a gun to his head, took his car keys

and wallet, and drove away in the BMW. Defendant's friend followed in

the dark car. A few minutes later, police officers recognized two vehicles

matching the dispatcher's description at a nearby intersection. The police

followed the cars. Defendant turned onto a dead-end road, exited the

BMW, and ran toward Middlebelt Road. He then approached a car

stopped at the intersection of Middlebelt Road and Nine Mile Road. He

pounded on the car window with his gun, demanding that the driver,

Katherine Goddard, unlock the door. When Goddard refused to do so and

the light turned green, Goddard floored her accelerator and defendant ran

away. He then approached Cheryl and Terry Bias, who were walking near

the same intersection stepping out of a hamburger restaurant. Defendant

pointed his gun at Cheryl and demanded that she give him her car. When

she refused and headed toward the restaurant to summon the police,

defendant ran across the street toward a coin laundry. Defendant finally

approached Tosh Louk, whose house was located near the coin laundry. 

Louk was not wearing a shirt and had a tattoo across his stomach that

read "outlaw." Holding his semi-automatic chrome-plated gun, defendant

informed Louk that he had "carjacked someone" and asked for Louk's

help. Fearful that he would be shot or his parents' car would be stolen,

Louk agreed to help defendant escape. With Louk's assistance, police

arrested defendant the following day. 

People v. Richardson, 2007 Mich. App. LEXIS 2478, *1-3 (Mich. Ct. App. Oct. 25,

2007)

Following his jury trial conviction for the above-described offenses, Petitioner

filed an appeal in the Michigan Court of Appeals, presenting the following claims:

I. Defendant’s was deprived of a fair trial where the prosecutor had an

irrelevant and very prejudicial witness testify to an extraneous crime

II. Defendant was denied due process and is entitled to vacation of his

conviction for carjacking in Counts 3 and 5 where there was insufficient

evidence presented that he took a vehicle from anyone since he merely

ran away after a brief encounter and the complainants never left or gave

up their vehicles.

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III. Because there was no identification of defendant as to perpetrator,

there was insufficient evidence to convict defendant of carjacking charges

regarding Mr. and Mrs. Bias

IV. Defendant was deprived of a fair trial given the repeated instances of

ineffective assistance of counsel.

The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished

opinion. Id. Petitioner’s subsequent application for leave to appeal in the Michigan

Supreme Court was denied by standard order. People v. Richardson, 480 Mich. 1136,

746 N.W.2d 85 (2008). 

Petitioner's application for a writ of habeas corpus raises the same claims he

presented to the state courts.

III. Standard of Review

A federal court may not grant habeas relief on any claim that was adjudicated on

the merits in the state courts unless the adjudication resulted in a decision that: (1) was

contrary to, or involved an unreasonable application of, clearly established federal law

as determined by the Supreme Court; or (2) was based on an unreasonable

determination of the facts in light of the evidence presented to the state courts. 28

U.S.C. § 2254(d). T his section creates a highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of the

doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). 

A state-court decision is contrary to clearly established federal law only "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, 413

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(2000).

A state-court decision involves an unreasonable application of clearly established

federal law where the state court identifies the correct governing legal principle from

Supreme Court decisions but unreasonably applies that principle to the facts of the

prisoner's case. Williams, 529 U.S. at 413. "[A] federal habeas court may not issue the

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

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

Rather, that application must also be unreasonable." Id. at 411.

Factual findings of the state court are presumed correct unless the petitioner

presents clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). A state

court decision resting on factual findings cannot be overturned unless the state court's

findings were objectively unreasonable in light of the evidence presented in the

state-court proceeding." Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010).

IV. Analysis

A. Evidence of Prior Bad Acts 

Petitioner first asserts that his trial was rendered unfair when the prosecutor

attempted to introduce evidence that the dark-colored Buick used in the carjackings had

been stolen the day before in another carjacking. Defense counsel objected to the

proposed testimony, and ultimately the parties agreed to stipulate the car in question

was carjacked in Wayne County, but that the victim of that incident could not identify the

perpetrators. Petitioner claims that the stipulation nevertheless suggested that he was

responsible for the previous incident, painting him as a person with a propensity to

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commit carjackings.

The Michigan Court of Appeals found that the claim was waived by the

stipulation. Here, even assuming that the claim was not waived, the alleged error

cannot form the basis for granting habeas relief. Claims that a state court improperly

admitted improper character evidence are non-cognizable on habeas review. See Bey

v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Estelle v. McGuire, 502 U.S. 62, 72 (1991)

(Supreme Court's habeas powers did not permit Court to reverse state court conviction

based on their belief that the state trial judge erred in ruling that prior injury evidence

was admissible as bad acts evidence under California law). The admission of this "prior

bad acts" or "other acts" evidence against Petitioner at his state trial does not entitle him

to habeas relief, because there is no clearly established Supreme Court law which holds

that a state violates a habeas petitioner's due process rights by admitting propensity

evidence in the form of "prior bad acts" evidence. See Bugh v. Mitchell, 329 F. 3d 496,

512 (6th Cir. 2003). Petitioner is therefore not entitled to habeas relief on his first claim.

B. Sufficiency of the Evidence - Vehicles Not Taken

Petitioner next asserts that there was insufficient evidence to sustain two of his

counts of carjacking because Goddard and Cheryl Bias's vehicles were never taken. 

The Michigan Court of Appeals rejected this argument, noting that it was based on a

superceded version of the carjacking statute that required a person to "rob, steal, or

take" a motor vehicle to complete the offense. The statute was amended in 2004 to

require that the perpetrator use force or violence to put fear in another person "in the

course of committing a larceny of a motor vehicle." M.C.L. § 750.529a, as amended by

2004 Mich. Pub. Act 128. The amended statute defines "course of committing a larceny

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of a motor vehicle" as including acts that occur in an attempt to commit the larceny or

the flight after commission of the larceny. M.C.L. § 750.529a(2).

Petitioner does not challenge the quantity of the evidence presented to establish

the required elements of carjacking. Rather, he challenges the Michigan Court of

Appeals' interpretation of what elements the state statute requires. Petitioner says that

state law required proof that he actually stole the motor vehicles, but the Michigan Court

of Appeals held that the law does not so require. It is a dispute the state court must win

on habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that "federal

habeas corpus relief does not lie for errors of state law"); Mullaney v. Wilbur, 421 U.S.

684, 691 (1975) (state courts are the final arbiters of state law). It is well-settled that "a

state court's interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting on habeas review." Bradshaw v.

Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). 

The Michigan Court of Appeals specifically found that there is no requirement under

state law for the prosecutor to prove that "the perpetrator retain possession of the

vehicle." Richardson, 2007 Mich. App. LEXIS 2478 at *5. Petitioner cannot challenge

the state court's interpretation of this state law on habeas review. Thus, he is not

entitled to relief on this claim. 

C. Sufficiency of the Evidence - Identification of Petitioner 

In his third claim, Petitioner says that there was insufficient evidence offered at

trial to demonstrate that he was the person who perpetrated the carjacking of Cheryl

Bias. The question is whether the state appellate court's adjudication of the claim was

reasonable.

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Clearly established Supreme Court law holds that "the 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). "Two layers of deference apply to habeas claims challenging

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

Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court "must

determine whether, viewing the trial testimony and exhibits in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Brown, 567 F.3d at 205 (emphasis in the original)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Second, if the Court were "to

conclude that a rational trier of fact could not have found a petitioner guilty beyond a

reasonable doubt, on habeas review, [the Court] must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable." Id. (emphasis in the

original) (citing 28 U.S.C. § 2254). "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. 422, 434 (1983)); see also McDaniel v. Brown, U.S. , 130

S.Ct. 665, 673, 175 L. Ed. 2d 582 (2010) (quoting Jackson, 443 U.S. at 326) ("A

reviewing court 'faced with a record of historical facts that supports conflicting 

inferences must presume—even if it does not affirmatively appear in the record—that

the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to

that resolution.'").

The Michigan Court of Appeals denied Petitioner's third habeas claim as follows:

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. . . defendant argues that the evidence presented at trial was

insufficient to establish his identity as the person who carjacked Cheryl. 

Identity is always an essential element of a criminal prosecution. People v.

Oliphant, 399 Mich. 472, 489 (1976). The prosecutor must prove

defendant's identity as the perpetrator beyond a reasonable doubt, People

v. Kern, 6 Mich. App. 406, 409 (1967). Circumstantial evidence, and

reasonable inferences drawn therefrom, may be sufficient to prove an

element of a crime, including identity. People v. Jolly, 442 Mich. 458, 466

(1993); People v. Kimberly Schultz, 246 Mich. App. 695, 702 (2001). 

We believe that the evidence presented at trial, viewed in the light

most favorable to the prosecution, was more than sufficient to establish

defendant's identity as the person who carjacked Cheryl. According to

Bolyukh, defendant pulled out of the gas station parking lot in the BMW at

approximately 10:30 p.m. The gas station is located near the intersection

of Middlebelt Road and 12 Mile Road. Shortly thereafter, police officers

observed the BMW within a few miles of the gas station, near the

intersection of Middlebelt Road and 9 Mile Road. The carjackings

involving Goddard and Cheryl, as well as Louk's interaction with

defendant, occurred within a block of the same intersection between 10:30

and 10:45 p.m. Although mere presence at the scene of the crime, at the

time the crime occurred, is insufficient to establish commission of the

crime, evidence of opportunity and presence at the crime scene may

contribute to a finding of guilt. People v. Barrera, 451 Mich. 261, 295

(1996); People v. Bowman, 254 Mich. App. 142, 151-152 (2002). 

Moreover, while Cheryl and Terry could not unequivocally identify

defendant as the carjacker, Bolyukh, Goddard, Cheryl, and Terry all

described the perpetrator as a tall, young, African-American male carrying

a silver gun. Bolyukh and Goddard definitively identified defendant in a

photographic lineup and at trial, and Louk assisted the police in arresting

defendant. Further, police found a silver handgun in defendant's pocket

upon his arrest. We find that this evidence was more than sufficient to

support defendant's identity as the perpetrator. 

Reversal is not warranted on the grounds of insufficient evidence. 

Richardson, 2007 Mich. App. LEXIS 2478, at *5-7.

The Michigan Court of Appeals' determination of the facts, viewed in the light

most favorable to the prosecution, is reasonable and not contrary to Jackson. As the

court of appeals carefully explained, the evidence was sufficient from which a

reasonable juror could conclude that Petitioner was person responsible for perpetrating

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the Cheryl Bias carjacking. Accordingly, Petitioner is not entitled to habeas relief on this

claim.

D. Ineffective Assistance of Counsel

Petitioner's final claim asserts that his trial counsel provided ineffective

assistance of counsel at trial. Petitioner makes several allegations regarding his

counsel's trial performance: (1) counsel should not have stipulated to the evidence

regarding the Wayne County carjacking; (2) counsel failed to move for a directed verdict

as to two of the carjacking charges; (3) counsel failed to object to the use of a

photographic line up procedure rather than a corporeal one; and (4) counsel conceded

Petitioner's guilt of the lesser offense felonious assault and carrying a concealed

weapon.

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two prong test. First, petitioner

must demonstrate that, considering all of the circumstances, counsel's performance was

so deficient that the attorney was not functioning as the "counsel" guaranteed by the

Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

petitioner must overcome a strong presumption that counsel's behavior lies within the

wide range of reasonable professional assistance. Id. In other words, the petitioner

must overcome the presumption that, under the circumstances, the challenged action

might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must

show that such performance prejudiced his defense. Id. To demonstrate prejudice, the

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."

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Strickland, 466 U.S. at 694.

More importantly, on habeas review, "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.'"

Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)(quoting Schriro v. Landrigan, 550

U.S. 465, 473 (2007)). "The pivotal question is whether the state court's application of

the Strickland standard was unreasonable. This is different from asking whether

defense counsel's performance fell below Strickland's standard." Richter, 131 S. Ct. at

785. Indeed, "because the Strickland standard is a general standard, a state court has

even more latitude to reasonably determine that a defendant has not satisfied that

standard." Knowles, 129 S. Ct. at 1420 (citing Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)). Under the § 2254(d)(1) standard, a "doubly deferential judicial review"

applies to a Strickland claim brought by a habeas petitioner. Id. This means that on

habeas review of a state court conviction, "[A] state court must be granted a deference

and latitude that are not in operation when the case involves review under the Strickland

standard itself." Richter, 131 S. Ct. at 785. "Surmounting Strickland's high bar is never

an easy task." Id. at 788 (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)). 

Finally, this Court is aware that "[R]eliance on 'the harsh light of hindsight' to cast doubt

on a trial that took place" eight years ago "is precisely what Strickland and AEDPA seek

to prevent." Richter, 131 S. Ct. at 789.

The court of appeals denied Petitioner relief with respect to his ineffective

assistance of counsel claim, explaining:

Defendant finally argues on appeal that the cumulative effect of his

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trial counsel's errors amounted to ineffective assistance of counsel. We

disagree. Because the trial court was not presented with and did not rule

on defendant's claim of ineffective assistance of counsel, we are left to our

own review of the record in evaluating his assertions. People v.

Rodriguez, 251 Mich. App. 10, 38 (2002). 

To establish ineffective assistance of counsel, defendant must

show that defense counsel's performance was so deficient that it fell below

an objective standard of reasonableness and denied him a fair trial.

People v. Henry, 239 Mich. App. 140, 145-146 (1999). Furthermore,

defendant must show that, but for defense counsel's error, it is likely that

the proceeding's outcome would have been different. Id. at 146. Effective

assistance of counsel is presumed; therefore, defendant must overcome

the presumption that defense counsel's performance constituted sound

trial strategy. Id. 

Defendant first argues that his trial counsel was ineffective for

failing to object more strenuously to Majed's testimony about two

African-Americans stealing his car and for withdrawing the motion to strike

the testimony. We disagree. As discussed infra, defense counsel

immediately objected to the challenged testimony and, upon defense

counsel's request, the prosecutor stipulated that Majed could not identify

the people who stole his car and that the incident involving Majed's car

should not be considered by the jury in this case. Further, it is apparent

from the record that defense counsel withdrew his motion to strike to avoid

highlighting for the jury Majed's reference to being thrown from a bridge. 

Thus, defense counsel's decision to withdraw the motion was apparently a

matter of trial strategy, and we will not second-guess counsel regarding

matters of trial strategy. People v. Rice (On Remand), 235 Mich. App. 429,

445 (1999). 

Next, defendant argues that his trial counsel was ineffective for

failing to move for a directed verdict on the carjacking charges involving

Goddard and Cheryl. Because there was more than sufficient evidence

presented at trial establishing defendant's carjacking charges, as

discussed infra, a motion for directed verdict would have been futile. 

Defense counsel is not ineffective for failing to argue frivolous or meritless

motions. People v. Darden, 230 Mich. App. 597, 605 (1998). 

Defendant further argues that his trial counsel was ineffective for

failing to object to the introduction of identification evidence from a

photographic lineup. We recognize that as a general rule, a physical

lineup is the preferred method of allowing a witness to identify a suspect.

People v. Anderson, 389 Mich. 155, 186-187 (1973), overruled in part on

other grounds People v. Hickman, 470 Mich. 602 (2004). Here, however,

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a police officer testified that a proper physical lineup was not possible due

to the lack of available juveniles to place in the lineup. Under such

circumstances, a photographic lineup was a permissible substitute for a

physical lineup. Id. at 187 n 22. Moreover, considering the overwhelming

amount of identity evidence properly admitted at trial, defendant cannot

establish that defense counsel's failure to object to the photographic lineup

was outcome determinative. 

Defendant finally argues that his trial counsel was ineffective for

conceding guilt on certain offenses. Counsel does not render ineffective

assistance by conceding certain points at trial, and doing so may be an

effective trial strategy. See People v. Wise, 134 Mich. App. 82, 98 (1984).

"An attorney may well admit guilt of a lesser included offense in hopes that

due to his candor the jury will convict of the lesser offense instead of the

greater." People v. Mark Schultz, 85 Mich. App. 527, 532 (1978). Here,

defense counsel's concessions regarding defendant's carjacking charges

were consistent with his theory that defendant was guilty of the lesser

offense of felonious assault. As to conceding that defendant was guilty of

CCW, we find that this was a reasonable trial strategy in light of the

evidence presented on that charge. Conceding the obvious is a

permissible trial tactic. Wise, supra at 98. Accordingly, we find that

defendant has failed to overcome the presumption of sound trial strategy. 

On appeal, defendant asks for a remand for further fact finding, but

he did not comply with Michigan Court Rule 7.211, which provides a

means for requesting a hearing in the trial court to develop evidence. 

Even on appeal, defendant has not presented evidence or an affidavit

demonstrating that facts elicited during an evidentiary hearing would

support his claim. See Rule 7.211(C)(1)(a)(ii). Thus, we decline to order a

remand.

Richardson, 2007 Mich. App. LEXIS 2478, at *9-11.

The Michigan Court of Appeals’ decision is reasonable. With respect to the

Wayne County carjacking, it is undisputed that the car stolen in that incident was the

one used in the Oakland County incidents on the next day. It is by no means obvious

that an objection to the introduction of this evidence would have been sustained. 

Rather than take his chances with an objection, defense counsel chose to withdraw it

and agreed to stipulate that the car was associated with the earlier incident but that the

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perpetrators were not identified. The jury was also instructed not to consider the earlier

carjacking in deciding the case. The stipulation avoided testimony that the victim of the

earlier incident was thrown bodily over a bridge. The claim was reasonably rejected by

the state court.

The allegations that defense counsel should have moved for a directed verdict

and objected to the use of a photographic line up were also correctly rejected. 

Because, as indicated above, the prosecutor presented sufficient evidence to support

the charges, a motion for a directed verdict would have been futile. Likewise, state law

did not support Petitioner's argument that a corporeal line up was required under the

circumstances. See People v. Anderson, 389 Mich. 155, 187 n. 22 (1973). Counsel

does not perform deficiently by failing to make futile motions or raise futile objections. 

See, e.g., United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000); McQueen v.

Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996). 

Finally, the allegation that his counsel conceded his guilt is not availing. Defense

counsel conceded during closing argument that his client was guilty of carrying a

concealed weapon and assaulting Goddard and Mr. and Mrs. Bias. His strategy was to

argue that his client was guilty of these lesser offenses but not carjacking. Conceding

guilt as a strategy for avoiding conviction of a greater offense is not generally

considered ineffective assistance of counsel. See Poindexter v. Mitchell, 454 F.3d 564

(6th Cir. 2006) (concession by defense counsel that the petitioner was guilty of murder

but not guilty of aggravated murder did not amount to a violation of the Sixth

Amendment right to the effective assistance of counsel). Defense counsel's strategy

was reasonable in light of the overwhelming evidence that Petitioner was involved in the

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incidents. The strategy did not fall below an "objective standard of reasonableness."

Strickland, 466 U.S. at 688. Accordingly, Petitioner is not entitled to relief on this claim.

V. Conclusion

For the reasons stated above, the state court’s rejection of Petitioner's claims did

not result in decisions that were contrary to Supreme Court precedent, an unreasonable

application of Supreme Court precedent, or an unreasonable determination of the facts. 

Accordingly, the petition for a writ of habeas corpus is DENIED.

Furthermore, reasonable jurists would not debate the Court's assessment of

Petitioner's claims, nor conclude that the issues deserve encouragement to proceed

further. The Court therefore DECLINES to grant a certificate of appealability under 28

U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: November 29, 2011

I hereby certify that a copy of the foregoing document was mailed to Tyrell Richardson 

601396, G. Robert Cotton Correctional Facility, 3500 N. Elm Road, Jackson, MI 49201

and the attorneys of record on this date, November 29, 2011, by electronic and/or

ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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