UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

OLDEN JERMAINE MEDLEY,

Petitioner,

v.

PERCY CONERLY,

Respondent.

/

Case No. 2:09-cv-10273

HONORABLE DENISE PAGE HOOD

OPINION AND ORDER DENYING PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

Olden Jermaine Medley, ("Petitioner"), seeks the issuance of a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his

convictions for felon in possession of a firearm, M.C.L.A. 750.224f; carrying a concealed

weapon, M.C.L.A. 750.227; and felony firearm, M.C.L.A. 750.227b. For the reasons stated

below, the application for a writ of habeas corpus is denied with prejudice.

I. JURISDICTION

At the time he filed the Petition, Petitioner was confined to the Pine River Correctional

Facility in the custody of Respondent Percy Conerly. Since that time, Petitioner completed

his sentence and has been released from prison. This raises a threshold question of the

jurisdiction of this Court to hear the Petition. 

The Court has habeas jurisdiction over state prisoners who are "in custody in violation

of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. The custody

requirement is jurisdictional, and a federal court lacks jurisdiction to accord habeas relief

if a petitioner is not in custody. Sevier v. Turner, 742 F.2d 262, 268 (6th Cir. 1984).

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Whether a habeas petitioner is "in custody" for purposes of 28 U.S.C. § 2241 is

determined at the time the complaint is filed. Carafas v. LaValee, 391 U.S. 234, 238

(1968). Petitioner was incarcerated at the time the Petition was filed and therefore the

custody requirement has been met. Nor is the Petition moot. The Court retains jurisdiction

over the Petition despite the Petitioner's release. See Abela v. Martin, 380 F.3d 915, 921

(6th Cir. 2004) (Petitioner’s release from custody and subsequent conclusion of his term of

parole after filing of petition do not render moot the petition). The Court therefore retains

jurisdiction over the Petition.

II. FACTS

The Michigan Court of Appeals summarized the facts adduced at trial: 

On the night of January 26, 2006, Officers Bridges and Johnson spotted defendant

walking down the middle of Van Buren Street. A Detroit ordinance prohibits walking

in the street where sidewalks exist. As the police car pulled closer, defendant began

to run. Officer Johnson chased defendant through several alleys and between several

houses. Before Officer Johnson apprehended defendant, defendant pulled a

nickel-plated handgun from the inside pocket of his jacket, and he threw it to the

ground in a field behind a house. Officer Johnson returned to the field and recovered

the handgun. Nyra Turner, an investigator for the Detroit police for 13 years, received

the handgun. At trial, Turner did not have the gun, and she testified that she could not

get it on such short notice. She had filled out the paperwork for test firing and

fingerprinting. However, the gun was not transferred to the gun lab, and the property

officer was on leave. Also, a videotape that was functioning in the patrol car was not

placed into evidence.

People v. Medley, No. 272069, 2008 WL 108956, *1 (Mich. App. 2008)

Petitioner was convicted after a jury trial of felon in possession of a firearm, M.C.L.A.

750.224f, carrying a concealed weapon (CCW), M.C.L.A. 750.227, and possession of a

firearm in the commission of a felony (felony-firearm), M.C.L.A. 750.227b. He was

sentenced to concurrent prison terms of 23 to 60 months for the felon in possession and

CCW convictions and a consecutive two-year term for the felony-firearm conviction. 

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Petitioner appealed his conviction and sentence to the Michigan Court of Appeals,

which affirmed in an unpublished per curiam opinion. People v. Medley, No. 272069, 2008

WL 108956 (Mich. App. 2008). Leave to appeal was denied by the Michigan Supreme

Court. People v. Medley, 481 Mich. 879 (2008). Justice Marilyn J. Kelly dissented from

denial of leave to appeal and would have granted leave to appeal on the issue of whether

being a felon in possession of a firearm can be the underlying felony for a conviction of

possession of a firearm during the commission of a felony and whether double jeopardy is

implicated, for the reasons stated in her concurring opinion in People v. Calloway, 469

Mich. 448, 457 (2003).

Petitioner then timely filed the present Petition.

III. LEGAL STANDARD

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim –

(1) resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable determination of the f

acts in light of the evidence presented in the State court proceedings. 

28 U.S.C. § 2254(d). This Court must also presume correct state court factual

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

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

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

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

of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An

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"unreasonable application occurs" when "a state-court decision unreasonably applies the

law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas

court may not "issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at

410-11.

IV. ANALYSIS

The Petition raises three claims for habeas relief:

I. Does Mr. Medley's consecutive sentencing for both felon in possession of a

firearm and felony firearm constitute multiple punishments for the same offense,

in violation of double jeopardy protections?

II. Did the improper qualification of an expert witness violate the court rules and

deprive Mr. Medley of his constitutional right to due process and a fair trial?

III. Is Mr. Medley entitled to a new trial where defense counsel provided

constitutionally ineffective assistance by failing to request a jury instruction based

on missing evidence?

Respondent argues in response that Petitioner's first and third claims do not provide

a basis for habeas relief because the Michigan courts reasonably applied federal precedent

in rejecting those claims. Respondent argues further that Petitioner's second claim for

habeas relief is not cognizable in a federal habeas action because it involves a violation of

state law, over which this Court does not have jurisdiction.

The Court agrees with Respondent that the Petitioner has failed to establish that he

is entitled to habeas relief.

A. Double Jeopardy

Petitioner was convicted of carrying a concealed weapon, being a felon in possession

of a firearm, and for possessing a firearm while committing the felony of being a felon in

possession of a firearm. He claims that the convictions for felon in possession and felony

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firearm, both of which were predicated on a single act of possessing a firearm on a single

occasion, violate the Double Jeopardy Clause's prohibition against multiple punishments

for a single offense. He asserts that these convictions violate the prohibition against double

jeopardy because they have identical elements to be proven and therefore constitute the

same offense for purposes of double jeopardy.

Petitioner's double jeopardy claim is without merit. The Double Jeopardy Clause of

the Fifth Amendment provides that no person shall “be subject for the same offense to be

twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The amendment applies to the

States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969).

The clause protects criminal defendants from subsequent prosecutions for the same

offense after acquittal, subsequent prosecutions for the same offense after conviction, and

multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977)

(citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted)). 

“Because the substantive power to prescribe crimes and determine punishments is

vested with the legislature, the question under the Double Jeopardy Clause whether

punishments are ‘multiple’ is essentially one of legislative intent.” Ohio v. Johnson, 467

U.S. 493, 499 (1984) (citations omitted). With respect to multiple sentences imposed in a

single trial, the Supreme Court has held that the Double Jeopardy Clause only prohibits a

court imposing a greater sentence than the legislature intended. Missouri v. Hunter, 459

U.S.359, 366 (1983). “Where... a legislature specifically authorizes cumulative punishment

under two statutes, regardless of whether those two statutes proscribe the ‘same’

conduct..., a court's task of statutory construction is at an end and the prosecutor may seek

and the trial court or jury may impose cumulative punishment under such statutes in a

single trial.” Id. at 368-69. Furthermore, "when evaluating whether a state legislature

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intended to prescribe cumulative punishments for a single criminal incident, a federal court

is bound by a state court's determination of the legislature's intent." Banner v. Davis, 886

F.2d 777, 780 (6th Cir. 1989) (citations omitted), 

Petitioner's double jeopardy argument fails because the Michigan Supreme Court has

considered the question and held that the Michigan legislature intended cumulative

punishments for conviction for felon in possession of a firearm and felony firearm, when the

felony firearm conviction is premised on the felony of being a felon in possession of a

firearm. People v. Calloway, 469 Mich. 448 (2003). This Court is bound by the Michigan

Supreme Court's determination of the intent of the Michigan legislature. Banner, 886 F.2d

at 780. Because the Michigan legislature intended for there to be cumulative punishments

for felon in possession of a firearm and felony firearm predicated on the single act of

possessing a firearm while committing the felony of being a felon in possession of a

firearm, Petitioner's convictions and sentences for both felon in possession of a firearm and

felony firearm do not violate the double jeopardy clause. White v. Howes, 586 F.3d 1025

(2009) (holding that cumulative punishments for Michigan convictions for felon in

possession of a firearm and possession of firearm during the commission of a felony did

not violate double jeopardy).

Petitioner argues that the Michigan Supreme Court decided Calloway wrongly. The

Court cannot entertain this argument, however, because it is completely bound by the

determination of the Michigan Supreme Court as to the intent of the Michigan legislature.

Petitioner, therefore, is not entitled to habeas relief for his first claim.

B. Admission of Expert Testimony

Petitioner's second claim for relief asserts that the trial court violated his rights to due

process and a fair trial by allowing police investigator Nyra Turner to testify that most guns

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do not yield useful fingerprints. This claim was raised in Petitioner's direct appeal and

rejected on the merits by the Michigan Court of Appeals, which held that the trial court did

not err in admitting the testimony as lay opinion testimony under Rule 701 of the Michigan

Rules of Evidence.

Respondent argues that this claim is not cognizable on habeas review. The Court

agrees. Federal habeas corpus relief is not available for errors of state law. Estelle v.

McGuire, 502 U.S. 62, 67 (1991). Petitioner's argument that the evidence was improperly

admitted is based almost solely on the Michigan evidence rules and Michigan cases

interpreting those rules. These arguments involving state law errors are not cognizable in

this federal habeas action. Furthermore, Petitioner's claim that the evidentiary ruling was

"fundamentally unfair" and violative of his rights to due process does not transform his state

law claim into a federal constitutional claim. Cf. Petrucelli v. Coombe, 735 F.2d 684, 688

(2d Cir. 1984) ("'Alleging lack of a fair trial does not convert every complaint about evidence

or prosecutor's summation into a federal due process claim'") (quoting Daye v. Attorney

General, 696 F.2d 186, 193 (2d Cir. 1982) (other citations omitted)).

To the extent that Petitioner is claiming that the admission of the investigator's

testimony violated his federal due process rights, that claim lacks merit. Trial court error

in the application of state law rules does not create a federal constitutional claim cognizable

in a habeas action unless the error "'so infected the entire trial that the resulting conviction

violates due process.'" Hill v. Mitchell, 400 F.3d 308, 333 (6th Cir. 2005) (quoting Estelle,

502 U.S. at 72).

When an evidentiary ruling is so egregious that it results in a denial of fundamental

fairness, it may violate due process and thus warrant habeas relief. Coleman, 244

F.3d at 542; Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000). Nonetheless,

“courts ‘have defined the category of infractions that violate ‘fundamental fairness'

very narrowly.’ ” Wright v. Dallman, 999 F.2d 174, 178 (6th Cir.1993) (quoting Dowling

v. United States, 493 U.S. 342, 352 (1990)). “Generally, state-court evidentiary rulings

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cannot rise to the level of due process violations unless they ‘offend[ ] some principle

of justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental.’ ” Seymour, 224 F.3d at 552 (quoting Montana v. Egelhoff, 518 U.S. 37,

43 (1996)).

Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)

Petitioner asserts that the admission of the police investigator's lay testimony violated

his right to a fair trial and due process. Petitioner, however, fails to cite any federal case

establishing that the admission of lay opinion testimony offends fundamental principles of

justice, and the Court is aware of none. The Michigan courts found the testimony proper

and admissible. Petitioner has failed to meet his burden of showing that the this holding

was contrary to or an unreasonable application of clearly established United States

Supreme Court precedent. 28 U.S.C. § 2254(d). Petitioner has therefore failed to establish

his entitlement to habeas relief for his second claim. 

C. Ineffective Assistance of Counsel for Failure to Request Jury Instruction

In his third claim, Petitioner argues that relief should be granted because he was

denied the effective assistance of trial counsel. He argues that his trial counsel was

ineffective because trial counsel failed to request an adverse inference jury instruction

based upon the failure of the police to produce at trial the gun, the results of any fingerprint

tests on the gun, and a videotape from the patrol car that the trial court had ordered

produced to the defense but which had not been produced. An adverse inference

instruction would have instructed the jury that it could infer that the evidence that was not

produced would have been unfavorable to the prosecution.

The Michigan Court of Appeals held that trial counsel's failure to request an adverse

inference instruction was not ineffective because Petitioner was not entitled to an adverse

inference instruction as a matter of Michigan law. The court found that a defendant is

entitled to an adverse inference instruction concerning the loss or destruction of potentially

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exculpatory evidence only on a showing of bad faith and that the Petitioner had failed to

show that the state had acted in bad faith in failing to produce the evidence at issue. The

court held that "[w]hile the prosecution's explanations of nonproduction of the evidence left

much to be desired, they showed nonculpable conduct by police department employees

and not bad faith." People v. Medley, 2008 WL 108956 at *1 (citing People v. Davis, 199

Mich. App 502, 515 (1993)). The Michigan court held, further, that Petitioner had shown

neither that his counsel's performance was defective nor that it was prejudicial. Id.

Because the Michigan Court of Appeals addressed this claim on the merits, the

Court's review is limited by 28 U.S.C. § 2254. The Michigan court's factual holdings are

presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. §

2254(e). Relief may be granted only if the decision of the Michigan court was based on an

unreasonable determination of the facts in light of the evidence presented in the state court

proceeding or was contrary to or an unreasonable application of clearly established federal

law as established by the holdings of the United States Supreme Court. 28 U.S.C. §

2254(d). Upon review of the record, the Court holds that the Michigan court's rejection of

Petitioner's ineffective assistance of counsel claim neither unreasonably determined the

facts nor unreasonably applied clearly established federal law.

The two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), governs

claims of ineffective assistance of counsel. To show a violation of the Sixth Amendment

right to effective assistance of counsel, a petitioner must establish that his attorney's

performance was deficient and that the deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687. An attorney's performance is deficient if “counsel's

representation fell below an objective standard of reasonableness.” Id. at 688. The

petitioner must show “that counsel made errors so serious that counsel was not functioning

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as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial

scrutiny of counsel's performance must be highly deferential.” Id. at 689.

An attorney's deficient performance is prejudicial if “counsel's errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466

U.S. at 687. The petitioner must show “a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Unless the petitioner demonstrates both deficient performance and prejudice, “it cannot be

said that the conviction [or sentence] resulted from a breakdown in the adversary process

that renders the result unreliable.” Id. at 687.

Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559

U.S. ––––, ––––, 130 S.Ct. 1473, 1485 (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.

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 (2002); Lockhart v. Fretwell,

506 U.S. 364, 372 (1993). The question is whether 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.

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; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (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.

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

The Michigan Court of Appeals held that trial counsel's failure to request an adverse

inference instruction was not deficient because the Petitioner was not entitled to an adverse

inference instruction as a matter of Michigan law. The court held that because Petitioner

was not entitled to an adverse inference instruction, trial counsel was not ineffective in

failing to request one.

The Michigan Court of Appeals decision is supported by the record. The police

investigator testified that, although she submitted paperwork to have the gun fingerprinted,

the gun was not fingerprinted, apparently because the property officer did not transfer the

gun to the gun lab. As for the videotape, Officer Johnson testified without explanation that

he did not place the videotape on evidence. Concerning the gun, Investigator Turner

testified that she was unable to produce the gun at trial because she had short notice that

she was going to have to testify at trial and the property officer who kept track of the

evidence was on leave the day of the trial. The Michigan court's finding that there was no

evidence of bad faith was reasonable on this record, and the Petitioner has failed to

establish otherwise. The record supports the finding of the Michigan Court that there was

no evidence that the non-preservation or non-production of the evidence was done in bad

faith. The Michigan court's holding that the Petitioner was not entitled to an adverse

inference instruction as a matter of Michigan law is binding on this Court. Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation

of state law, including one announced on direct appeal of the challenged conviction, binds

a federal court sitting in habeas corpus"). Since Petitioner was not entitled to an adverse

inference instruction, his counsel was not ineffective for failing to request such an

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instruction, and Petitioner has therefore failed to establish the first prong of the Strickland

test.

Petitioner has failed to satisfy the “doubly” deferential standard by which ineffective

assistance of counsel claims are measured on habeas review. He is not entitled to habeas

relief on his claim of ineffective assistance of counsel.

V. CERTIFICATE OF APPEALABILITY

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the

Rules Governing Section 2254 Proceedings requires the district court to issue or deny a

certificate of appealability "when it enters a final order adverse to the applicant.”

A COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation omitted). In this case, the Court concludes that reasonable jurists could not debate

the Court's conclusion that the Petition fails to establish a right to habeas corpus relief. The

Court therefore will deny a certificate of appealability.

VI. CONCLUSION

For the reasons stated above, the petition for a writ of habeas corpus and a certificate

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of appealability are DENIED and the matter is DISMISSED.

SO ORDERED.

s/Denise Page Hood

United States District Judge

Dated: June 30, 2011

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

Medley#330935, 14615 Strathmoor, Detroit, MI 48227 and counsel of record on June 30,

2011, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry 

Case Manager

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