UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEARY GILMORE, 

 

Petitioner, Case No. 2:09-cv-10110

 Hon. Nancy G. Edmunds

v.

SHIRLEE HARRY

Respondent.

_____________________________________/

ORDER GRANTING PETITIONER’S MOTION TO AMEND [Dkt. 62] AND DENYING

PETITIONER’S MOTION TO MAKE ADDITIONAL FINDINGS [Dkt. 58]

This is a habeas corpus case filed under 28 U.S.C. § 2254 by a state prisoner who

was convicted in 1974 along with two other men of two counts of first-degree murder. The

three defendants were accused of murdering two young boys after their ransom demands

were not met. The Court denied the petition on March 30, 2016. Presently before the Court

is Petitioner’s motion to make additional findings under Rule of Civil Procedure 52(b), in

which he seeks reconsideration of the Court’s decision denying him habeas relief.1

Petitioner primarily complains that Respondent failed to file the portions of the trial

record necessary for a fair review of his claims. He argues the Court erroneously relied on

a statement of facts contained in the state trial court’s order denying his motion for relief

from judgment. Petitioner notes that the statement of facts was adopted by the trial court

from purportedly biased statement of facts appearing in an earlier pleading filed by the

prosecutor. 

In response to the motion, Respondent filed what appears to be a complete copy of

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Petitioner also filed a motion to correct typographical errors in his Rule 52(b) motion.

[Dkt. 62]. That motion will be granted.

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the record from Petitioner’s 1974 jury trial, which includes 40 transcript volumes, as well

as a response to Petitioner’s claims. See Dkts. 63 and 64. Upon review of the motion,

response, and the record of the trial court proceedings, the Court finds that it was not

misled by the trial court’s statement of facts, 0and it correctly determined that Petitioner’s

claims lack merit. The motion to make additional findings will therefore be denied. 

I. Standard of Review 

Federal Rule of Civil Procedure 52(b) provides that “[o]n a party’s motion . . . the

court may amend its findings— or make additional findings— and may amend the judgment

accordingly. The motion may accompany a motion for a new trial under Rule 59.” FED. R.

CIV. P. 52(b). The Court construes Petitioner’s pro se pleading as also seeking an order

altering or amending the Court’s decision denying his petition pursuant to Rule 59(e). A

motion under this rule may be granted only if there is a clear error of law, newly discovered

evidence, an intervening change in controlling law, or to prevent manifest injustice.

GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). The Sixth

Circuit has “repeatedly held that a Rule 59(e) motion ‘does not permit parties to . . .

re-argue a case’ and ‘cannot be used to present new arguments that could have been

raised prior to judgment.’” Schellenberg v. Twp. of Bingham, 436 F. App’x 587, 598 (6th Cir.

2011) (quoting Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)).

II. Discussion

A. Failure to File Trial Record

Petitioner first asserts that Respondent failed to comply with Rule 5(d)(1) of the

Rules Governing Section 2254 Cases when it failed to file the trial transcripts along with its

initial responsive pleading to the petition. He notes that the Court relied upon a statement

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of facts contained in the trial court’s order denying Petitioner’s motion for relief from

judgment. Petitioner asserts that the trial court’s statement of facts constitutes an

unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) because it adopted

a purportedly inaccurate statement of facts submitted by the prosecutor in an earlier filed

pleading. 

In § 2254 proceedings, the state must indicate in its responsive pleading what

transcripts are available and what proceedings have been recorded but not transcribed.

See Rule 5(c) of the Rules Governing Section 2254. If the state fails to submit the entire

record, any decision by the district court on the merits may be subject to challenge. See,

e.g., Nash v. Eberlin, 437 F.3d 519, 523–34, 2006 FED App. 0057P (6th Cir. 2006)

(vacating judgment where district court did not have complete state court transcript and

review of the additional evidence was required).

When Respondent filed its initial response to the petition, it filed portions of the state

appellate record, as well as some of the pleadings filed in the state courts during state postconviction review, but it did not file any of the trial transcripts. See Dkt. 47. Most of

Petitioner’s claims, not surprisingly, concern matters contained in the trial transcripts. It was

therefore incumbent on Respondent to file the portions of the state court record pertaining

to Petitioner’s claims. 

Nevertheless, the error in failing to file the transcripts has now been cured because

Respondent has filed what appears to be the complete trial record. See Dkt. 64. The Court

has now had an opportunity to review Petitioner’s claims in light of the trial record. Though

the trial court’s statement of facts does seem to be a copy of a statement of facts submitted

by the prosecutor, see Dkt. 47-2, after review of the trial record, the Court concludes that

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it accurately summarized the trial proceedings, and it does not constitute an unreasonable

determination of the facts contrary to § 2254(d)(2). 

The Court finds that the failure to file the trial transcripts does not provide a basis for

relief because, for the reasons that follow, none of Petitioner’s claims merit relief in light of

the trial record. 

B. Jury Oath

Petitioner argues that the Court incorrectly determined that his appellate counsel

was not ineffective for omitting a claim that the trial court failed to administer the jury oath

prior to trial. The parties agree that the transcripts do not indicate that the jury was

administered an oath prior to trial. It does not follow, however, that Petitioner is entitled to

relief on this claim.

First, as an independent federal claim, there is no clearly established Supreme Court

law requiring reversal where, absent an objection, a jury is not admitted an oath prior to a

criminal trial. See, e.g., United States v. Turrietta, 696 F.3d 972, 982 (11th Cir. 2012) (“No

federal court in the history of American jurisprudence has held the constitutional guarantee

of trial by jury to necessarily include trial by sworn jury.”). 

Next, as the predicate to an ineffective assistance of appellate counsel claim, the

argument fairs no better. In People v. Cain, 498 Mich. 108 (2015), the Michigan Supreme

Court held that it was not plain error requiring a new trial where the jury was not properly

sworn before it deliberated to a guilty verdict in a criminal case absent objection. Cain

overruled other Michigan cases, such as People v. Allen, 299 Mich. App. 205, 219 (2013),

on which Petitioner relies. Whether or not the claim would have found support under

Michigan law at the time of his direct appeal, Petitioner cannot demonstrate that he has

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suffered prejudiced under the Strikcland standard by his appellate counsel’s failure to raise

the issue because the claim is without merit in light of the current state of the law. See

Lockhart v. Fretwell, 506 U.S. 364, 373 (1993). 

Finally, the claim fails for the reasons stated in the Court’s initial opinion denying

habeas relief. Appellate counsel raised substantial claims during Petitioner’s direct appeal.

His decision to raise those claims in favor of an unpreserved jury oath claim did not

constitute deficient performance. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

C. Trial Court’s Comments

Petitioner asserts that the trial transcripts support his claim that the trial court made

comments throughout trial indicating his bias. In the initial opinion denying the petition, the

Court examined this claim in light of the statement of facts contained in the state trial

court’s opinion. See Dkt. 56, at 14-15. The Court has now had the opportunity to review the

allegations of bias in light of the actual trial record. A review of the record confirms the

accuracy of the state trial court’s statement of facts, and it confirms the Court’s finding that

the challenged remarks amounted to nothing more than expressions of “impatience,

dissatisfaction, or annoyance,” not meriting relief. See Liteky v. United States, 510 U.S.

540, 555 (1994). This claim is without merit. 

D. Limitations Placed on Cross Examination

Petitioner argues that the trial record shows that he was not allowed to examine a

document used to refresh the recollection of prosecution witness Carrol Payne, and

therefore he was unable to cross examine the witness regarding the document.

Again, review of the trial transcripts confirms the Court’s assessment of the claim. 

During direct examination of Payne, the prosecutor asked the witness whether she

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remembered telling him about overhearing a statement co-defendant Holloway made. Dkt.

64-21, at 1119. The prosecutor showed the witness a piece of paper in an effort to refresh

her recollection. Id. Defense counsel objected, and the prosecutor indicated that he was

using “notes of our conversation.” Id., at 1120. The trial court allowed the witness to read

part “11(d)” of the notes. Id., at 1121-22. Defense counsel objected that they were not

permitted to examine the entire document. Id. The Court indicated that it only allowed the

witness to read “11(d)” and that portion was made available to defense counsel. Id., at

1122-23. 

Accordingly, a review of the record does not alter the Court’s analysis of the claim. 

Contrary to Petitioner’s argument, the defense attorneys were permitted to examine the

portion of the document shown to the witness, and they were therefore not prohibited from

cross-examining the witness on that basis. 

E. False Testimony

Petitioner argues that the Court misapprehended his claim that the prosecutor

knowingly offered the false testimony of prosecution witness Payne regarding statements

she heard made by co-defendant Smith in Petitioner’s presence. Petitioner asserts that

Payne could not have heard Smith say on December 4, 1973, that “they found the box, the

bullet, the box container in which the bullets were in, in the garbage disposal,” because the

search of Petitioner’s apartment did not occur until December 5, 1973.

Again, a review of the transcripts confirms the Court’s initial assessment of this claim

as being without merit. Payne testified that she heard Smith’s statements after he was

watching coverage of the murders on the evening news. Dkt. 64-21, at 1138. Smith was

also holding a newspaper. Id., at 1140. Payne described Smith as being angered by the

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news coverage, that the “newspaper told lies,” had the facts wrong, and that the family got

what they deserved because they had the money to pay the ransom. Id., at 1178. Payne

then heard Petitioner respond to Smith’s statements by stating, “Man, I’ve been telling them

all day that we had nothing to do with it, and now you come in here and blow it all.” Id., at

1180. The content of Smith’s statement was not offered for the truth of the matter asserted

against Petitioner. Rather, it was the fact that after hearing Smith’s statements about the

crime (whatever they were) that Petitioner responded by essentially admitted guilt by

stating that Smith had just “blown it” that provided incriminating evidence against Petitioner. 

In any event, Petitioner has failed to demonstrate that the prosecutor knew Payne’s

testimony to be false with respect to her recollection of the contents of Smith’s statement.

See Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). Payne may or may not have accurately

recalled the particular contents of Smith’s incriminating statements. Even if the box was not

actually recovered until the day after Payne recalled the statement being made, the

prosecutor had no way of knowing whether Payne was testifying in accordance with her

honest recollection of what Smith said. Again, Payne was not testifying about when and

where pieces of evidence were actually found, she was merely relating her recollection of

Smith’s statements regarding the crime, which prompted an incriminating response by

Petitioner. This claim is simply not supported by the record. 

F. Failure of Appellate Counsel to Raise Evidentiary Claim

Petitioner claims that the Court failed to discuss his claim that his appellate counsel

was ineffective for failing to raise an issue regarding admission of evidence of Petitioner’s

poverty. This argument is incorrect. The Court explicitly addressed and rejected this claim.

Dkt. 56 at 19. Petitioner does not present any argument as to why the Court’s analysis is

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erroneous.

G. Evidence of Petitioner’s Silence

Petitioner next argues that the Court erred in its analysis of his claim that the trial

court erroneously admitted evidence of Petitioner’s silence at the time of his arrest.

The prosecutor asked Jacqueline Wesley on direct examination about what occurred

when the police arrived at an apartment to arrest Petitioner. Dkt. 64-18, at 618. Wesley

testified that after she heard a knock at the door, Petitioner grabbed his pistol and went to

the front of the apartment. Id., at 619. When he returned, Wesley testified that Petitioner

said, “‘Dammit, the police. . . . Byron snitched.’ Then he came toward me with the pistol.

Then Geary said, ‘Bitch, if you say one word,’ he said ‘I’ll kill you.’” Id. 

Wesley testified that the police then forced their way into the apartment, they said

something about the pistol, “and Geary didn’t say anything to them.” Id. The prosecutor

again asked what happened when the police inquired about the pistol, and Wesley

responded that “Geary didn’t say anything to them.” Id., at 620.

The officer involved in the arrest, Michael Hall, testified that he went to the

apartment to arrest Petitioner. Dkt. 64-29, at 2494. He testified that after Petitioner shut the

door on him, he kicked it in. Id., at 2494-95. Petitioner was wearing an empty holster

around his waist. Id., at 2495. 

While the record does not definitively reveal when Petitioner was informed of his

Fifth Amendment rights, the trial accounts of his arrest indicate that the police asked

Petitioner about the pistol immediately upon entering the apartment. Under these

circumstances, the prosecutor was permitted to elicit testimony regarding Petitioner’s failure

to respond to the question. See Fletcher v. Weir, 455 U.S. 603, 606 (1982) (per curiam)

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(post-arrest statements made before warnings are given may be commented upon by

prosecutor, noting that the Court has “consistently explained Doyle [v. Ohio, 426 U.S. 610,

618 (1976)] as a case where the government had induced silence by implicitly assuring the

defendant that his silence would not be used against him.”); see also Brecht v.

Abrahamson, 507 U.S. 619, 628 (1993) (citing Fletcher and upholding use of a defendant’s

post-arrest silence).

Moreover, in New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court found

that police officers are permitted to ask questions of a suspect necessary to protect

themselves or the public from immediate danger during an arrest prior to informing the

suspect about his Fifth Amendment rights. Here, when officer Hall entered the apartment

he encountered a person suspected of murder who was wearing an empty holster.

Questioning Petitioner about the whereabouts of the missing firearm was clearly necessary

to protect himself from the threat of immediate danger. This claim is without merit.

H. Illegal Search

Finally, Petitioner contends that the Court incorrectly denied his claim that his

appellate counsel was ineffective for failing to raise a Fourth Amendment challenge on the

basis that the police used false statements in an affidavit for a search warrant.

Contrary to Petitioner’s assertions, his claim is based on Franks v. Delaware, 438

U.S. 154 (1978). Franks was not available to Petitioner’s appellate counsel when he

presented Petitioner’s Fourth Amendment claim during Petitioner’s direct appeal. As

indicated in the Court’s initial Opinion, the state trial court held a four-day evidentiary

hearing on the legality of the search at issue and denied relief. Petitioner’s appellate

counsel then raised the challenge again on direct appeal based on existing precedent, and

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the Michigan Court of Appeals rejected the claim on the merits. Gilmore, 73 Mich. App.

463, 472 (1977). Appellate counsel did not perform deficiently in the manner he presented

this issue to the state appellate courts. The claim is therefore without merit. 

III. Certificate of Appealability

Nothing in Petitioner’s motion or in the trial court record alters the Court’s conclusion

that Petitioner is not entitled to a certificate of appealability with respect to any of his claims.

The resolution of his claims is not reasonably debatable. See 28 U.S.C. § 2253(c); Rule 11,

Rules Governing Section 2254 Proceedings. The Court will, however, grant permission to

appeal in forma pauperis because any appeal of this decision could be taken in good faith.

28 U.S.C. § 1915(a)(3).

IV. Conclusion

Accordingly, the Court 1) GRANTS Petitioner’s motion to amend [Dkt. 62], 2)

DENIES Petitioner’s motion to make additional findings under Rule 52(b) [Dkt. 58], 3)

DENIES a certificate of appealability, and 4) GRANTS permission to appeal in forma

pauperis. 

SO ORDERED.

s/ Nancy G. Edmunds

Honorable Nancy G. Edmunds 

Dated:November 1, 2016 United States District Judge

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