UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

KASSEM MOHAMED SALAMEY, 

Petitioner, 

CASE NO. 2:09-CV-12201 

v. JUDGE DENISE PAGE HOOD 

MAGISTRATE JUDGE PAUL J. KOMIVES 

MARY BERGHUIS, 

Respondent. 

 / 

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. Standard of Review...........................................................................23 

 D. Loss of Exculpatory Evidence..............................................................25 

 1. Clearly Established Law...................................................................25 

 2. Analysis.....................................................................................27 

 E. Sentencing Claim.............................................................................28 

 1. Clearly Established Law..................................................................29 

 2. Analysis....................................................................................29 

 F. Ineffective Assistance of Counsel............................................................31 

 1. Clearly Established Law...................................................................31 

 2. Failure to Investigate and Call Witnesses...............................................32 

 3. Failure to Object to Inappropriate Evidence............................................34 

 G. Recommendation Regarding Certificate of Appealability...............................34 

 1. Legal standard...............................................................................34

 2. Analysis....................................................................................36 

 H. Conclusion.....................................................................................36 

III. NOTICE TO PARTIES REGARDING OBJECTIONS........................................37 

* * * * * 

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of 
2 

habeas corpus. The Court should also deny petitioner a certificate of appealability. 

II. REPORT: 

A. Procedural History

1. Petitioner Kassem Mohamed Salamey is a state prisoner, currently confined at the 

Brooks Correctional Facility in Muskegon, Michigan. 

2. On October 24, 2007, petitioner was convicted of armed robbery, MICH.COMP.LAWS

§ 750.529, and conspiracy to commit armed robbery, MICH. COMP. LAWS § 750.529 and MICH.

COMP.LAWS § 750.157a, following a jury trial in the Wayne County Circuit Court. On December 7, 

2007, he was sentenced to concurrent terms of 12-20 years’ imprisonment on each count. 

3. After the trial and prior to filing his appeal, petitioner filed, through counsel, a motion 

for a new trial on April 26, 2007, in the Wayne County Circuit Court. An evidentiary hearing 

pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), was held on August 24, 

2007, and September 14, 2007. Thereafter petitioner appealed as of right to the Michigan Court of 

Appeals raising, through counsel, the following claims: 

I. [PETITIONER] WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE 

PROCESS OF LAW DUE TO THE INEFFECTIVENESS OF HIS TRIAL 

COUNSEL FOR FAILURE TO INVESTIGATE AND ESTABLISH ALL 

SUBSTANTIAL DEFENSES AVAILABLE TO [PETITIONER]; FAILURE 

TO INVESTIGATE AND INTRODUCE RELEVANT AND MATERIAL 

EVIDENCE AVAILABLE TO HIM WHICH DIRECTLY 

CONTRADICTED THE CREDIBILITY OF THE ALLEGED COCONSPIRATORS AGAINST [PETITIONER] , DETRACTS FROM THE 

ALLEGED MOTIVE FOR THE ROBBERY AND REFUTES 

[PETITIONER]’S OPPORTUNITY TO COMMIT THE ROBBERY; 

FAILURE TO OBJECT TO THE ADMISSION OF A VIDEO 

SURVEILLANCE TAPE THAT HAD BEEN EDITED TO DELETE VITAL 

INFORMATION CRITICAL TO [PETITIONER]’S DEFENSE; FAILURE 

TO SEEK APPROPRIATE RELIEF FOR THE [RESPONDENT]’S 

DESTRUCTION OF EVIDENCE; FAILURE TO OBJECT TO THE 

ADMISSION OF THE VIDEO SURVEILLANCE TAPE DUE TO 
3 

DISCOVERY VIOLATIONS; AND WAIVER OF SENELLA GANT’S 

TESTIMONY, WHICH DIRECTLY CONTRADICTED THE TESTIMONY 

OF THE VICTIM, TYSON JANISCH, AND FAILURE TO CALL 

MOHAMED SALAMEY AS A DEFENSE WITNESS. 

II. [PETITIONER] WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE 

PROCESS OF LAW AND HIS RIGHT TO PRESENT A DEFENSE DUE 

TO THE PROSECUTION’S EDITING OF THE CRIME SURVEILLANCE 

VIDEO, THEREBY CREATING A LOSS OF EVIDENCE THAT WAS 

CLEARLY POTENTIALLY EXCULPATORY THEREBY DEPRIVING 

[PETITIONER] OF HIS RIGHT TO A FAIR TRIAL UNDER THE 

UNITED STATES CONSTITUTION AMENDMENT VI AND XIIII [sic]. 

III. [PETITIONER] IS ENTITLED TO RE-SENTENCING DUE TO THE 

TRIAL COURT’S IMPOSITION OF AN EXCESSIVE AND 

DISPROPORTIONATE SENTENCE BASED UPON INACCURATE 

INFORMATION, AND THE COURT’S PREVENTION OF 

[PETITIONER]’S ALLOCUTION PRIOR TO THE IMPOSITION OF 

SENTENCE. 

IV. [PETITIONER] WAS DENIED HIS CONSTITUTIONAL DUE PROCESS 

OF LAW DUE TO HIS CONVICTION BEING AGAINST THE GREAT 

WEIGHT OF EVIDENCE. 

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

sentence. See People v. Salamey, No. 275102, 2008 WL 3876102 (Mich. Ct. App. Aug. 21, 2008) 

(per curiam). 

4. Petitioner, proceeding through counsel, sought leave to appeal the first three issues 

raised in the court of appeals to the Michigan Supreme Court. The Supreme Court denied 

petitioner’s application for leave to appeal in a standard order. See People v. Salamey, 483 Mich. 

894, 760 N.W.2d 489 (2009). 

5. Petitioner, proceeding through counsel, filed the instant application for a writ of 

habeas corpus on June 7, 2009. As grounds for the writ of habeas corpus, he raises the following 

three claims: 
4 

I. [PETITIONER] WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE 

EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH 

AMENDMENT OF THE UNITED STATES CONSTITUTION. 

II. PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS AND HIS 

RIGHT TO PRESENT A DEFENSE DUE TO THE PROSECUTION’S 

EDITING OF THE CRIME SCENE SURVEILLANCE VIDEO AND THE 

PROSECUTION’S FAILURE TO PRESERVE MATERIAL 

EXCULPATORY EVIDENCE FROM THE SURVEILLANCE VIDEO. 

III. PETITIONER WAS DENIED HIS CONSTITUTIONAL DUE PROCESS 

RIGHT NOT TO BE SENTENCED ON THE BASIS OF INACCURATE 

INFORMATION 

6. Respondent filed her answer on November 3, 2009. Respondent contends that 

petitioner’s claims are without merit. Respondent concedes that none of petitioner’s three habeas 

claims are barred from habeas review due to failure to comply with the statute of limitations, failure 

to exhaust state court remedies, or because they are procedurally defaulted. 

7. Petitioner filed a reply to respondent’s answer on November 11, 2009. 

B. Factual Background Underlying Petitioner’s Conviction 

The factual background underlying petitioner’s conviction was adequately summarized in the 

respondent’s answer (adopted from the prosecutor’s brief on appeal to the Michigan Court of 

Appeals):

Tyson Janisch testified that in March of 2005, he was employed as a manager 

of retail gas accounts by Atlas Oil Company and had been so employed for five years 

(Jury Trial Transcript, 10/17/06, 169). He had around 60 gas station accounts that he 

was responsible for (170). He also opened a gas station called the Fast Track Gas 

Station located at 14845 Alter in Detroit (170). Atlas Oil actually built the station 

and he staffed it and opened it for business in November of 2004 and ran it until 

December of 2004, when it was leased to Mohammed Salamey (171). He trained 

Mohammed and his son Kassem to run the day-to-day operations of the business 

(172-173). He identified [petitioner] in court as the son Kassem (172). The Salameys 

in turn paid Atlas Oil rent and also purchased all of their gas from Atlas (173). The 

gas station remained one of his accounts (173). 
5 

Initially, the Salameys would receive gas on one day and three days later an 

electronic funds transfer from their account would occur by which they would pay 

for the gas (173). By mid-January, however, the electronic transfers for the fuel 

received were bouncing (174). Under normal circumstances when that happened, 

Atlas would require payment for the gas upon delivery (177), but a special 

arrangement was worked out with the Salameys where any gas paid for by credit 

cards would come directly to Atlas, and, as far as gas paid for with cash, he [Janisch] 

would, on a day-to-day basis, figure out how much gas had been sold in exchange for 

cash and he would go and collect the amount in cash that was owed to Atlas, and 

deposit it in Atlas's account (178). The Salameys would retain their own margin of 

the cash over the cost of the gas supplied by Atlas (179). Both Mohammed and 

[petitioner] were aware of this arrangement (178). 

He [Janisch] went to the Salameys' gas station daily Monday through Friday 

and sometimes on the weekend (179-180). The amount he would collect on a daily 

basis was roughly $5,000 to $6,000, but it all depended on the amount collected in 

cash on any given day (180). When he didn't go on the weekend, he would make his 

collection on the following Monday (180). When he did make a collection on any 

particular day, he would meet with either Mohammed or [petitioner] to go over the 

cash receipts and make the settlement; he met with [petitioner] more often than he 

did with Mohammed when doing this (180). What normally occurred was that he 

would go the office at the gas station and get the spread sheet from their computer, 

from which he would find the volume of gas sold and multiply that by Atlas's cost 

for that amount and come up with a total, after which, [petitioner] or Mohammed 

would count out the cash and he'd double count (181). Then, they'd both sign a 

receipt and each of them would keep a copy and he would go deposit the cash that he 

collected in Atlas's bank account (181). He would always call before he came, either 

calling the gas station itself and asking for Mohammed or [petitioner], or calling 

them on their cell phones, and would tell them what time that he expected to be there 

(182). At that time, he was driving a 2004 black Pontiac Grand Prix, which was the 

car that he would drive to the gas station, and he would usually wear the same coat, a 

black and green rain-type coat (183). He always came by himself and never carried a 

weapon; he would park as close to the door as he could (183). 

On March 21, 2005, he called [petitioner] at around 11:00 a.m. to let him 

know that he would be coming by at around 1:00 p.m. (184). He had not collected 

any cash that weekend and so he was picking up the cash receipts for the previous 

Friday, Saturday, and Sunday (184). He got to the gas station at around 1:30 or 1:45 

(184). He followed his usual procedure: parking his black Grand Prix by the front 

door, and he was wearing his green and black coat (185). When he walked into the 

gas station, he asked for [petitioner] and they went back to the office and figured out 

the receipts (185). He knew for sure when he got to the gas station that Vonique 

Campbell and Senella Gant, the two cashiers, were there (186); he had actually hired 

these two people when he opened the gas station in November of 2004 (174-175). 
6 

That day, the cash receipts that he was taking with him totaled $19,124, which again, 

were the receipts from the previous Friday, Saturday, and Sunday (187). After the 

money was counted and double counted, [petitioner] left the gas station and he 

himself hung around for five or ten minutes to say hello to the cashiers (187). He 

recalled [petitioner] having told him that he was leaving the gas station after they got 

done (188). He put the cash, which was bound in bank bands, in a white plastic bag 

(188). This was what he usually did when he was collecting for the whole weekend; 

on the weekdays, when the receipts were smaller, he would just stuff the money in 

his coat pocket (189). 

He recalled, when he parked his car and walked into the gas station, seeing 

two men sitting on a picnic table and drinking pop to the right of the front door 

(189). He took notice of these two individuals because they had been warned by the 

police to be careful about carrying money in that area (190). When he came out of 

the gas station, with the $19,124 he had collected in cash receipts, the two men he 

had seen as he was going in, ran up to him and demanded his money; one of the men 

had a gun (191). While the one held the gun on him, the other grabbed his coat, his 

wallet, and the bag with the money in it and ran towards Alter and rounded the 

corner of the gas station, after which he lost sight of them (191-193). His cell phone 

was in his coat pocket (192). 

After he was robbed, he went back into the gas station and asked the cashiers 

to call the police; one of the cashiers had already hit the panic button behind the 

counter (194). When the police arrived, he gave them the information about the 

robbery (194). While he was waiting for a detective to show up to take his statement, 

he saw, from the store, the police surround a house on Alter a couple of yards away 

(194-195). About a half hour later, [petitioner] came back to the gas station (195). 

Cortez, whose last name he did not know, but who he remembered from training 

people at the gas station (175), came around the same time (195); Cortez was a 

person who worked at the gas station but he hadn't hired him (175). 

The witness was shown People's Exhibit No. 1 and identified it as containing 

a number of spread sheets showing what he had picked up in cash from the gas 

station on a given day (200). The first sheet had the date of March 21, 2005 on it, but 

it was for the sales of the previous day, March 20, 2005 (200). The date of March 21, 

2005 was handwritten on the sheet and signed by both him and [petitioner]; the 

amount he received in cash for the cash sales of March 20 was $4,646 (200). The 

next sheet showed the actual day of the cash sales being March 19, which he and 

[petitioner] signed and which showed the amount he collected as $5,805 (201). And 

the next sheet showed the cash sales for the date of March 18, 2005, which he and 

[petitioner] signed and which showed the amount he collected to be $8,673 (201). 

Those cash amounts were for the sales which occurred on Friday, Saturday, and 

Sunday (202). People's Exhibit No. 1 also included bank deposit slips that he would 

make out for the amount of cash received on a given day, which he would fill out at 
7 

the bank, not at the gas station (202). And Exhibit No. 1 also showed the spread 

sheets for days previous, one of which was dated and signed March 14 by him and 

Mohammed Salamey for sales pertaining to March 13, showing cash disbursed to 

him in the amount of $4,601, another dated and signed by him and Mohammed 

March 13 for sales pertaining to March 12, amounting to cash disbursed to him in the 

amount of $5,370, and another dated and signed by him and Mohamed March 12 for 

sales pertaining to March 11, with cash disbursed in the amount of $7,203 (202-204). 

He knew, from looking at the records on People's Exhibit No. 1, that he had gone to 

the gas station on at least one of the weekend days of the weekend of March 12-13, 

and when he went and picked up cash on the weekend, he could not deposit it then, 

but had to wait until the following Monday to do so, but still the money he collected 

on any given weekend day would be kept in the Atlas Office, not at the gas station 

(204-205). He also testified that he would make out a separate deposit slip whenever 

he picked up cash at separate times, such as when he picked up cash on the weekend 

of March 5-6; he and [petitioner] signed a sheet on March 5, a Saturday, for the sales 

on March 4, a Friday, and they signed a sheet on March 6, a Sunday, for the sales on 

March 5 - he made out two separate deposit slips for these, even though he deposited 

both amounts on the same day, March 7, the following Monday (205-206). 

Finally, the witness identified People's Exhibit No. 3 as stills from a video 

tape of the gas station (208-209). One still showed him in his black and green coat, 

another showed him leaving the gas station with the bag containing $19,124 in his 

hand, another showed his black Grand Prix in front of the gas station, another 

showed him being approached by the two men who robbed him, and it actually 

showed one of the men pointing a gun, and another showed the two men running 

towards Alter Road (209-211). 

On cross-examination, the witness testified that after the Salameys leased the 

gas station from Atlas Oil, it was their call as to who they hired as employees (Jury 

Trial Transcript, Vol. I of II, 10/18/06 (6)). He testified that he did not review the 

application of Cortez, whose name he did not know (7). He may, however, have 

discussed Cortez's application with the Salameys (8). He testified that after the 

Salameys starting leasing the gas station, he would come to the gas station three or 

four times a week and he would have contact not only with the Salameys, but with 

the workers, so that the workers would have been familiar with his comings and 

goings and would have been aware of his picking up cash receipts (9-10). In fact, 

there were other employees who would sign the cash receipt sheets when neither of 

the Salameys was there (10). 

On redirect examination, the witness testified that he never went over the 

cash receipts with Cortez (18). He also testified that when he was on his way to pick 

up the cash receipts, he would call the gas station with his cell phone, and, whenever 

he talked to people at the gas station by phone, it was with his cell phone (18). His 
8 

cell phone number was 313-350-4583 (18). Finally, he testified that [petitioner] was 

known as Kass (19). 

Vonique Campbell testified that until May of 2006, she was employed as an 

assistant manager at the gas station (Jury Trial Transcript, Vol. I of II, 10/18/06 

(20)). She had been so employed since October of 2004 (20). When she started, 

Tyson Janisch was managing the gas station, and, when the Salameys took over 

management, she stayed as an assistant manager (21). She trained new cashiers and 

assisted Kass Salamey in hiring people and also paid vendors and did office work 

when neither Salamey was there (21-22). She would continue to see Janisch when he 

came to the gas station, but she never knew until March 21, the day of the robbery, 

that he was collecting money (22). She had never engaged in squaring accounts with 

Janisch (23). 

She started work on March 21 at 6:00 a.m. (23). Working with her that day 

were Senella Gant, Tanika Beard, and Cortez Chenault (23). Senella was a cashier 

(24). Cortez was hired sometime in January or February of 2005 (23). He sometimes 

worked as a cashier, but mostly he was in the back stocking the cooler (24-25). 

Tanika was sent home by Kass that day at about 11:00 a.m., after the morning rush 

was over (25). She identified [petitioner] in court as the person who she was referring 

to as Kass (26). 

At around noon, Cortez came up front and started talking to her (26-27; 29). 

She had told him that she was staying in a hotel and he asked if he could come and 

visit her and she told him no (27). Then [petitioner] came up front and told Cortez to 

stop bothering her and to go do his work (27). Cortez got upset with that and went to 

the back and she started hearing bottles and stuff falling (27). [Petitioner] then went 

in the back and Cortez came back up to the front and kicked a rack over and then left 

and went across Mack and stood in the front of a Family Dollar store (27). 

Meanwhile, she had asked [petitioner] if he wanted her to call the police and 

[petitioner] told her no; this was when Cortez was still in the gas station (27). She 

was surprised at Cortez's reaction to [petitioner] telling him to stop bothering her and 

to get back to work (28). She thought that Cortez was waiting to catch a bus because 

he stood across the street (30). Then, when Tyson showed up, she saw Cortez wave 

his hands; she didn't know what that was about (30). Tyson then came in the gas 

station and he and [petitioner] went to the back for awhile (34). 

Then, [petitioner] came up and said he was leaving, that he had to go pick his 

mom up at the airport (30). Tyson left the building after [petitioner] did and she 

witnessed Tyson get robbed (31). What she saw was one man with his arm where 

Tyson had a bag of money and the other was taking off Tyson's coat (32). She also 

saw a gun (32). The two men then ran towards Alter, and Tyson ran back in to the 

building (33). When she saw that, she pressed the station's panic button (31). She 

then called [petitioner] on her cell phone and told him about what she had witnessed 
9 

and [petitioner] said that he was coming back (31). When the police arrived, she told 

one of the officers about the camera that the gas station had (33-34). 

On recross examination, the witness testified that when she saw Cortez across 

the street waving his arms, when Janisch showed up, she did not see anybody with 

him (44). 

Cortez Chenault testified that he was charged with one count of armed 

robbery and one count of conspiracy to commit armed robbery relative to this case 

(Jury Trial Transcript, Vol. I of II, 10/18/06, 65). He entered into a plea agreement 

with the Prosecutor's Office whereby he pled guilty to the conspiracy count and 

received a sentence of 3 to 20 years in exchange for his testimony against [petitioner] 

(65-68). 

He testified that [petitioner], who he referred to as Kass (75), had been his 

boss at the Wow gas station at Mack and Alter, but his relationship with [petitioner] 

got to the point where they became friends and they would socialize outside of work 

(72). He also knew Tyson Janisch, who used to come to the gas station and train 

people (73). Janisch was the person who he had conspired to rob (74). How this came 

about was that one day, [petitioner] was counting money and [petitioner] said to him, 

"Wouldn't it be fun if all of this was ours?" (75). He thought that [petitioner] was just 

joking (76). A couple of weeks later, which would have been a month or so before 

the robbery, [petitioner] said that they should rob Tyson and asked him if he knew 

anybody who would do that (79). He knew that Tyson used to pick up money from 

the gas station; the money he picked up was for the gas that was delivered to the gas 

station by Tyson's company (79-80). He told [petitioner] that he could get his cousin, 

Ronald Scott, to do it (81; 83). So, that day, he called his cousin, using the gas station 

cell phone (82). The number he called Scott at was 839-5038, which was where Scott 

stayed (84). When he called Scott, he asked Scott if he wanted to do a robbery and if 

he knew anybody who would do it also and Scott said that he did (85-86). He then 

told Scott that he would call him back when he got the details (85). [Petitioner] was 

present when he talked to Scott on the phone (85). He ended up calling Scott later 

that day and telling him that they weren't going do it (86-87). 

The subject came up later, two weeks before the robbery (88-89). [Petitioner] 

brought the subject up again (88). [Petitioner] asked him if his cousin still wanted to 

do it; he told [petitioner] that he would call his cousin and see (89). So, he called 

Scott at the same phone number and Scott said that he was still interested (90). He 

told Scott about Tyson, the intended victim, and about how much money Tyson 

would have, which, [petitioner] told him, would be about $30,000 (90; 96). 

[Petitioner] was present when he talked to Scott this second time, and this time, 

[petitioner] talked to Scott as well; he heard [petitioner] tell Scott that Tyson was a 

white guy and that he was scary (91). [Petitioner] also told Scott that he didn't want 

anything to happen to Tyson (92). Scott told him (the witness) that he was going to 
10 

get another person involved, a person named Mike, but when the actual robbery went 

down, Scott had another person with him, that being Shawn Fegan, known as Snoop, 

not Mike (94). They were all going to split the money, and, after the robbery, he was 

supposed to go over to Scott's house and get the money (96-98). He ended up giving 

Scott's number to [petitioner] (98-99), and he knew that [petitioner] talked to Scott 

on the phone at least three times because he was present for those conversations 

(100). 

On the actual day of the robbery, March 21 (99), he [Chenault] was at work 

and [petitioner] asked him if he wanted to do it that day, and he responded that it 

didn't matter to him (101-102). So, he called Scott and told him that Tyson would be 

at the gas station at about 1:30 p.m. and for him to come up there; he got the 

information about when Tyson would be there picking up money from [petitioner] 

(102). [Petitioner] talked to Scott as well and told Scott not to hurt Tyson; 

[petitioner] told him that Tyson was a scary (sic) [scared] person and also that he 

wouldn't have a gun, so that he wouldn't need a gun, but that if he brought one, not to 

shoot Tyson or anything (103-105). He told [petitioner] that morning that he was 

going to cause a disturbance at the gas station so that he could leave, so as not be 

there when the robbery happened (105-106). [Petitioner] agreed to this plan and said 

that he would send him home when he caused the disturbance (106-107). So, that 

morning, he came out and kicked over some displays and left (108). He didn't go 

home, but went across Mack to a Family Dollar store (108). It was then that he saw 

Scott and his boys coming down Alter Road (108). He went and talked to them, 

Scott, Mike, and Snoop, on the side of the gas station (109). They told him that they 

were going to wait on the picnic tables and he told them that he was going back 

across the street (110). That's when he found out that another person other than Mike 

was involved and that a gun was involved (110). Mike didn't want to be involved in 

the actual robbery either, so he went with him across the street to watch for the 

police (111). The plan, as discussed between him and [petitioner] that morning, had 

been for the two robbers to sit on the picnic tables on the side of the gas station and 

wait for a signal to let them know when Tyson arrived, and that he would be standing 

across the street acting as a look-out (110-118). The plan for after the robbery was 

for the three men to go to a green house on Ashland, behind and not far from the gas 

station, where he and [petitioner] would then pick them up, after which they would 

divide up the money (119-120). While he and Mike were standing across the street, 

he called [petitioner] and [petitioner] told him that Tyson was on his way (121). Then 

Mike called [petitioner], but he did not know what they talked about (121). 

When Tyson showed up, which was later than expected, Mike made a signal 

to Scott and Snoop, as was the plan (125). When Tyson walked into the gas station, 

he [Chenault] started walking down Alter and Mike stayed in front of the Family 

Dollar (125-126). Then, he [Chenault] met up with [petitioner] on Alter, and he and 

[petitioner] just sat in [petitioner’s] car, behind the gas station (126). They could see 

Scott and Snoop from where they were seated (128). He then saw Scott and Snoop 
11 

jump up and then he saw them running (129). Then, he and [petitioner] pulled off 

and went to Ashland to pick up Scott and Snoop at the house where they were all 

supposed to meet (130). [Petitioner] dropped him off there and Mike walked up 

(131). He and Mike found out that Scott and Snoop were not at the house so he told 

Mike to call Snoop to find out where they were (131). Eventually, Mike got a hold of 

Snoop but Snoop would not tell him (the witness) where they were (32). So, he (the 

witness) went home and Mike went with him (132-133). The next thing that 

happened was that Scott called him and told him that they were in a house and that 

the police had the house surrounded (132). Then he called [petitioner] and told him 

what was happening (133). About an hour later, he went back to the gas station, 

where he saw the police arresting Scott and Snoop (132-135). [Petitioner] was 

already at the gas station when he went back there (135). He then told [petitioner] 

that he was going home (135). 

Later, [petitioner] came to his house (136-137). Mike's dad was also at his 

house, as was Snoop's dad (137). He told [petitioner] that his cousin, Scott, had gone 

to jail and that they needed to get him out; [petitioner] agreed (137). Snoop's dad also 

tried to scare [petitioner] out of some money to get his son out on bond as well; 

[petitioner] agreed to try to help (137-138). 

On cross-examination, the witness [Chenault] acknowledged having given a 

statement to the police on April 3, 2005 (Jury Trial Transcript, 10/18/06, Vol. II of II, 

172-176). He acknowledged that he did not tell the police that he also planned the 

robbery in that statement, nor did he tell the police that Michael Boyd was with him 

across the street giving signals, nor did he tell them that he was in a car with 

[petitioner], nor did he tell them that he threw down merchandise and left the store, 

nor did he tell them that he was going to get a split of the proceeds (177- 180). He 

didn't tell them these things because they didn't ask him, although he acknowledged 

that they did ask him what happened (177-178). 

Also on cross, the witness acknowledged that he knew that Tyson Janisch 

would come to the gas station and pick up money (184-185). He also acknowledged 

that during the time he was working there, in particular between the time he and 

[petitioner] talked about the robbery and the actual day of the robbery, he used 

[petitioner’s] cell phone (197). The witness denied that it was he who waved his 

hands when Tyson showed while he (the witness) was across the street (209). He 

testified that it was Mike who waved his hands to give the signal that Tyson had 

arrived, but it was he who told Mike that that was Tyson, which prompted Mike to 

wave his hands (209). He testified that Mike was standing right next to him across 

the street (209-210). 

Ronald Scott testified that the previous witness, Cortez Chenault, was his 

cousin (Jury Trial Transcript, 10/19/06, 28). He knew that in January and February of 

2005, Cortez was working at the Wow Fast Track gas station at Alter and Mack (28). 
12 

[Scott] testified that he was charged in this case and ended up pleading guilty 

to armed robbery with the conspiracy to commit armed robbery charge being 

dismissed and for a sentence of 5 to 15 years imprisonment (29-30). 

[Scott] testified that Cortez was the first person to bring up the robbery (30). 

This was by way of phone (32); Cortez called him at his mother's house, 839-5038 

(37). He had caller ID on that phone and he saw that the call was coming from the 

Wow Fast Track gas station (37). Cortez asked him if he wanted to make some 

money (32). He told Cortez that he did and then Cortez put his manager on the phone 

and he talked to the manager (32). He had never met Cortez's manager before (32). 

The manager told him about the robbery, who the victim would be, and how much 

the guy would have on him; the manager said that the guy would have $20,000 in a 

bag (33). He did not recollect if the manager told him about the guy during that 

phone call, but he knew that the manager at some point did tell him that the guy was 

a tall, white guy, that he would be driving a black Grand Prix, and that he would be 

wearing a green jacket (33-34). And the manager told him that the guy would be 

coming up to the gas station on Monday, March 7 (34). He described [petitioner] in 

court as Kash (sic), Cortez's manager (35). After that, he got in touch with Michael 

Boyd and told him where they could get $20,000 and then he gave Boyd all the 

details (37-38). Cortez and Kash, however, had told him that the money was going to 

be drug money (39). He told Boyd that they would have to go and get a gun (40). He 

knew that Boyd didn't have a gun; he got Boyd involved because he needed 

somebody to drive him to the robbery (40-41). Boyd, in turn, contacted Fegan 

because Boyd knew that Fegan had a gun (43). 

On March 7, 2005, a Monday, he and Boyd were at his house and Boyd got a 

call on his cell phone from somebody at Wow Fast Track (46). Because Boyd had 

caller ID, the number showed up on Boyd's cell phone and they simply called the 

number back (50). Then, he and Boyd went to pick Fegan up and then they went to a 

house on Alter close to the gas station, where they waited for another phone call 

from Kass, letting them know that Tyson was on his way (50-52). Another call came 

to Boyd's cell phone (52). It was Cortez, telling them that it wasn't going to go down 

that day, because the money came up short (55). Then, Cortez told him that Kass 

would explain it further and Kass got on the phone and said that there wouldn't be 

enough money (55). Kass then told him that they would do it the following week: 

March 14 (57). But when March 14 came around, he heard from Cortez, who told 

him that it wouldn't be happening on that day either (57). He, in turn, told Boyd this 

(58). 

On the following Monday, March 21, he heard from Cortez in the morning; 

Cortez told him that the money would be there that day and asked him if he was still 

in (59). He did not talk to Kass (59). He then called Boyd, who said that he was still 

interested and Boyd came over to his house and then they went and picked up Fegan 
13 

(60). Initially, the plan was to split the money four ways, between he and Boyd, and 

Cortez and Kass [petitioner]; this was because initially, he and Boyd were going to 

do the robbery, there was no fifth person (61). Then, the plan developed where he 

would get half the money, which he would split with his cousin Cortez and Boyd and 

Fegan would get the other half (62-63). Once he and Boyd picked Fegan up, they 

drove to the home of one Jamira, which was close to the gas station, where they 

waited for a phone call from Cortez and Kass, telling them when Tyson would be 

coming up (65). While at Jamira's, they got the phone call and were told what time 

that Tyson would be there (68-69). He got two separate phone calls, one from Cortez 

and one from Kass (69). In the conversation he had with Kass, Kass told him that 

Tyson was a friend of his and not to shoot Tyson because he wouldn't have a gun and 

he was going to be scared already (70-71). 

Eventually, he and Fegan left Jamira's to go do the robbery (75). Boyd left 

with them also but he walked in front of them, as they all walked down Alter (76). 

He had told Boyd that he and Fegan would do the robbery and for him to go down 

the street and watch out for the police (76-77). He and Fegan sat down on the 

benches outside of the gas station (77). Meanwhile, Boyd was across Mack, standing 

with Cortez (78). At one point, he went into the gas station and bought two pops 

(78). When he went in there, he saw a female cashier and Kass [petitioner]; Kass was 

leaning over getting something out of the drawers (80). He heard Kass speak to the 

female cashier (81). It was the same voice that he had heard over the phone; when he 

talked on the phone, the person who he was talking to, whose voice he recognized, 

identified himself as Kass (81). He didn't say anything to Kass while he was in the 

store; he just walked back out after making his purchase (82). 

He went back to the benches and sat with Fegan until he saw Tyson pull up 

(82-83). He knew it was Tyson from the description Kass had given him; Tyson 

pulled up in a black Grand Prix and was wearing a green coat (83). At that point, 

Cortez called him on the phone and told him that that was Tyson; he never did get 

any signal from across the street (83). He and Fegan didn't rob Tyson as he was 

going into the gas station because Kass had told him that Tyson would have the 

money in a bag when he came out of the gas station (84). Kass had told him that this 

would be the money he (Kass) gave Tyson (84); he got this information from one of 

the phone calls he had had with Kass (84-85). Then, he and Fegan robbed Tyson 

(85). He took Tyson's bag and made him take off his coat while Fegan held the gun 

and pointed it at Tyson (85). He took the coat just in case Tyson had a cell phone in 

it, so that Tyson couldn't call the police (86). He and Fegan then went back to 

Jamira's house and counted the money (87). The amount of money in the bag was 

roughly $19,000 (86). 45 minutes later, the police were all on Alter, so he and Fegan 

hid the money in the attic and they hid in the attic as well, under the insulation (89-

92). He himself took off his pants and one of his shirts so as not to fit the description 

(90). Eventually, the police came into the house and they found him and Fegan and 

they also found the gun and the money (92). 
14 

On cross-examination, the witness testified that he never had a face-to-face 

conversation with [petitioner]; all of his conversations were by telephone (102). He 

testified that from the very beginning, his plan was to cut Cortez's manager out of the 

proceeds of the robbery, but he never told Cortez this (111-112). He testified that the 

reason that he did not want Boyd involved in the robbery itself was because Boyd 

was fat and slow (119). He testified that when he went into the store to buy two pops, 

[petitioner] was stooping down with his head up, so that he could see his face (136). 

Detroit Police Officer Mark Amos testified that he was one of the police 

officers who responded to the robbery scene on March 21, 2005; this was around 

2:15 p.m. (Jury Trial Transcript, 10/19/06, 174-175). At the scene, he received 

information that the perpetrators of the robbery were at a particular address on Alter 

(175). He and other officers went to that address and were allowed admittance by the 

occupant, Jamira McKinley (176-177). Their cursory search around the house 

uncovered nothing, and they left, but they returned when the robbery victim stated 

that he was 100% sure that the robbers had gone to that address (178). They were 

allowed admittance again by McKinley who told them that they wouldn't find 

anything (178). This time, he went to the closet area of the master bedroom upstairs, 

where he saw insulation coming from the attic (178-179). He went into the attic, 

where he found Scott and Fegan hiding under the insulation (179-180). He also 

found a green and dark-colored jacket, a gun, a cell phone, and the money stolen 

(179-181). 

Detroit Police Officer Brett Letwin testified that he responded to the robbery 

scene at Wow Fast Track gas station on March 21, 2005 (Jury Trial Transcript, 

10/23/06, 7). When he got to the scene, he talked to the victim Tyson Janisch, from 

whom he got a description of the people who robbed him (9-10). He also talked to 

another witness, Miss Kim Jones, who saw where the robbers had run to, which was 

3680 Alter (10). 

Detroit Police Investigator Maurice McClure testified that he became the 

officer in charge of this case on the evening of the robbery (Jury Trial Transcript, 

10/23/06, 15). As part of his duties, he went to the gas station three or four days after 

the robbery (15-16). There he came into contact with [petitioner] (16). His purpose 

for that contact was to get a copy of the surveillance tape that was in the computer 

inside the gas station (17). [Petitioner] was supposed to burn a copy of the tape from 

the computer's digital hard drive (17). He asked [petitioner] for this several times and 

[petitioner] would say that he was working on it, but that he didn't know understand 

how to get the computer (17). [Petitioner] told him that the hard drive would rewrite 

itself every 10 to 15 days and the data would be erased (17). After he asked 

[petitioner] several times for the computer, he obtained a search warrant to get it (17-

18). His only alternative was to break into the office to get it, but the owner, 

[petitioner’s] father, Mohammed Salamey, came and opened the door and he took the 
15 

computer (19). He downloaded the data onto a videotape and a CD-ROM (19). He 

identified People's Exhibit No. 6 as the videotape (20). 

As officer in charge, he also obtained phone records from Nextel 

Communications relative to [petitioner’s] cell phone number: 313-304-8406 (26; 29). 

He also was able to obtain the phone number for Ronald Scott's mother's phone, that 

phone number being 313-839-5038 (28). He saw on the Nextel Communications 

records that there had been phone calls from [petitioner’s] cell phone to Scott's 

mother's phone on March 7, 2005, consisting of two outbound calls from 

[petitioner’s] phone to Scott's mother's phone and one from Scott's mother's phone to 

[petitioner’s] phone (29). There was an outbound call from [petitioner’s] cell phone 

to the cell phone of Tyson Janisch, at 313-350-4583, on March 21, 2005 (30). He 

found another record of a number of calls to another cell phone with the number 313-

449-2965, which was registered to one Carmen Washington, with an address in 

Southfield; Michael Boyd used the same address and he found out that Boyd also 

used that cell phone (31). [Petitioner’s] cell phone records showed that on March 21, 

2005, the day of the robbery, there were at least eight outbound calls from 

[petitioner’s] cell phone to Boyd's cell phone before the robbery; these eight calls 

occurred after the one outbound call from [petitioner’s] cell phone to Tyson's cell 

phone (34). Then, there were at least six outbound calls from [petitioner’s] cell phone 

to Boyd's cell phone after the robbery (34). There were also calls made from Boyd's 

cell phone to [petitioner’s] cell phone (34). There were four calls from Boyd's cell 

phone to [petitioner’s] cell phone before the robbery, between 1:26 p.m. and 1:39 

p.m., and one, which was one minute before the robbery, at 2:17 p.m., and then, there 

were six cell phone calls from Boyd's cell phone to [petitioner’s] after the robbery, 

between 2:19 p.m. and 2:23 p.m. (35). Cortez's mother's phone number was 313-417-

1901 (32). There were seven calls to this number from [petitioner’s] cell phone after 

the robbery, at 2:34 p.m. (32). Finally, he found a call from [petitioner’s] cell phone 

to Cortez's aunt number, 417-3852, at 3:55 p.m. on March 21,2005 (33). 

 

On cross-examination, the witness testified that the surveillance video tape 

that he made covered the time period from no more than a half hour before the 

robbery and a half hour after (52). He was asked if any of the stills from the video 

tape showed Ronald Scott inside the gas station; he responded that they did not (52). 

Michael Boyd testified that in March of 2005, he knew Ronald Scott; Scott 

lived across the street from him (Jury Trial Transcript, 10/23/06, 58). He also knew 

Shawn Fegan, who was a friend of his, and he knew Jamira McKinley, also a friend 

(58). He testified that he had initially been charged in this case with armed robbery 

and conspiracy to commit armed robbery and he ended up pleading guilty to the 

conspiracy charge and receiving three years probation with a year in jail in exchange 

for his testimony (59-61). 
16 

As far as his involvement in this case, he got involved when Ronald Scott 

called him on the phone and asked him if he wanted to make some money (63). He 

told Scott that he would be over when he got home (63). When he got over to Scott's, 

Scott got his cousin, Cortez, on the phone and Cortez asked him if he wanted to 

make some money doing a robbery (64). He knew Cortez, and he knew that Cortez 

worked at the Fast Track gas station at Mack and Alter (65). Cortez told them that 

the money was drug money and what the guy looked like and how they would split 

the money (66). When Scott got off the phone with Cortez, he and Scott talked about 

how they were going to do the robbery (67). They were going to do the robbery with 

a gun, but neither of them had a gun (68). Because they wanted to use a gun for the 

robbery, he called Shawn and asked him if he wanted to make some money (70-71). 

He told Shawn that Cortez's manager wanted to take some drug money; he got the 

information about the involvement of Cortez's manager from Cortez and Scott (71). 

When Shawn agreed to get involved, he and Scott went over to pick him up to go do 

the robbery; this was the same day that they got the phone call from Cortez (71). 

Once they picked up Shawn, they went over to his uncle's house to wait for a call 

from Cortez and his manager (72). 

The call came to his phone (73). Around that time, he was using the cell 

phone of his girlfriend's cousin, Carmen Washington; the number on the cell phone 

was 313-449-2965 (69). The call came from Cortez; Cortez asked him if they were 

ready (74), and he also asked him if they had a gun (83). Then Cortez's manager got 

on the phone and told him how Tyson looked, that he was a white male, that he was 

kind of goofy and tall, what kind of car he would be driving, where he would pull up, 

how much money he would have (77), that being $20,000 (78), what kind of bag he 

would have the money in, that being a plastic bag, and that if the money wasn't in a 

bag, it would be in his coat (84). He also told him not to shoot Tyson (75). Then, he 

got another call (86). It was from Cortez, advising him that the robbery wasn't going 

to happen that day, but next week, the reason being that there wouldn't be enough 

money this day (86). He never did get a call the following week (87). The next time 

that he got a call was on the day of the robbery itself; that was at around 9:30 a.m. 

(87-88). 

The call came from Scott, asking him if he still wanted to do it (89). He did, 

so he and Scott went and picked up Fegan (89). While in the car, Scott told him that 

he wasn't going to split the money with Cortez or Cortez's manager (90). Scott said 

that they'd split the money amongst themselves over at Scott's house (91). He (Scott) 

would get $9,000 and the two of them would get $11,000 to split among themselves 

(90). 

So, they went over to Jamira's house on Alter Road, close to the gas station, 

to wait for another call from Cortez or Kass (92). When they got to Jamira's, a lot of 

phone exchanges occurred with Scott talking on the phone (93-94). Some of the calls 

came to his cell phone and he saw that some of the calls were from Kass's cell phone 
17 

(94). He himself talked to Cortez and he told Cortez about Fegan being involved; 

Cortez told him that Fegan would have to be paid out of their share of the split (95). 

When they left Jamira's, Scott and Fegan went to the gas station and sat on a picnic 

table to the right of the gas some and he went across the street from the gas station to 

a Dollar Store to act a look-out (96-99). Before they left Jamira's, Kass called and 

told them that Tyson was on his way (96). While he was standing across the street, 

he got a call from Cortez, asking him where he was (99). He told Cortez where he 

was and Cortez joined him (99-100). He had a discussion with Cortez then, wherein 

Cortez asked him what house they would be at (100). He told Cortez that they would 

be at a green house on Ashland; he told Cortez this lie because they were going to 

cut Cortez and his manager out of the money (100). While he and Cortez were 

standing across the street, he (the witness) received a phone call from Kass; Kass 

told him what time Tyson would be arriving and where he would park (102). Kass 

told him he was calling from the gas station (104-105). He relayed the information 

that Kass gave him to Fegan (104). While he was on the phone with Fegan, Fegan 

told him that Scott had gone into the gas station to buy pop (105). He himself saw 

Scott come out of the gas station and go back to the picnic table (105). 

Then, he saw Tyson show up and park in front of the gas station (106). He 

then received a call from Kass, in which Kass told him that they were counting the 

money and that Tyson would be out in about ten minutes; he relayed this information 

to Fegan (107). He then saw Tyson come out of the gas station (112). Before Tyson 

came out, Cortez left from across the street (110). When Tyson came out, Scott and 

Fegan ran up to him and Fegan pulled a gun on him (113). Scott and Fegan took 

Tyson's bag and his coat and ran towards Alter (113). He himself started walking to 

Ashland, where he told Cortez that they would all meet up (114). As he was walking, 

Cortez called him and asked him where he was; he told Cortez where he was (115). 

Cortez told him that he was with Kass (15). Cortez then showed up with another man 

on Ashland (114). He identified [petitioner] in court as the person Cortez showed up 

with (114). That was the first time that he ever saw [petitioner] (114). [Petitioner] 

dropped Cortez off and Cortez asked where the other guys were and also asked him 

if they were playing him and Kass for the money (116-117). Then, he received a 

phone call from Kass, the same person who he had talked to before (118). Kass told 

him to tell Fegan that the police were on their way to a house (118). He called Fegan 

and told him this and Fegan said that he already knew this (118). He (the witness) 

knew the house they were in; they were at Jamira's (118-119). He was able to see 

from where he was that the police had Jamira's house surrounded (119). Then, Kass 

called him and told him that a neighbor was at the gas station and said that she knew 

what house (120). He watched the house for awhile and then he and Cortez went to 

Cortez's house (121). When they got there, Kass [petitioner] came over and asked 

him if Scott and Fegan were trying to run off with the money (122). When Kass said 

this to him, he recognized the voice from the person he had talked to on the phone 

before who had identified himself or had been identified as Kass (123; 79-81). Kass 

then took off, saying that he had to go back to the gas station to talk to a detective 
18 

(122). He and Cortez remained at Cortez's mother's house and then Kass came back 

about an hour later (124). Kass asked him if he thought that Scott and Fegan would 

tell on them; he told Kass that he didn't know (125). Then Kass said that he would try 

to raise the money for their bonds (125). Other people started showing up at Cortez's 

mother's house, one of the people being Fegan's father (127). Fegan's father wanted 

to know if Kass was going to get his son out of police custody; Kass said yes (127). 

Answer, at 4-17. 

After trial and prior to filing his appeal, petitioner filed a motion for a new trial in the Wayne 

County Circuit Court. The court held a two-day evidentiary hearing on the motion. At the 

evidentiary hearing, petitioner first presented the testimony of his trial attorney, Jeffrey Edison. 

Edison testified that he was retained as counsel at trial for petitioner. Ginther Hr’g Tr., dated 

8/24/07, at 13. Edison described the prosecution’s theory of the robbery as being “the result of a 

conspiracy between [petitioner] the manager-owner of the gas station, and an employee of the gas 

station, together with the employee’s friends who orchestrated the actual robbery.” Id. at 14. Edison 

testified that at some point, the Salameys discussed with him that Senella Gant signed a receipt on 

Saturday, March 19, 2005 [the weekend before the robbery]. Id. at 20. Based on such a receipt, 

“there would have been a question as to Janisch’s credibility, as to whether he was present at the gas 

station on that Saturday when he testified that he was not.” Id. at 21. Edison did not receive such a 

receipt in the discovery. Id. at 22. He did receive other receipts showing pick-ups by Janisch on 

Saturday, March 19, and Sunday, March 20. Id. at 23. Edison did not confront or question Janisch 

about these receipts and whether or not Janisch was telling the truth about not picking up any money 

the weekend before the robbery. Id. at 24. Edison testified that “the heart of [petitioner’s] case to me 

was that the witnesses were liars; that they had an interest in lying against [petitioner] to minimize 

the consequences against themselves. . .” Id. at 25. The clip of the surveillance video provided to the 

prosecution and shown at trial only portrayed the one minute of the robbery. Edison was aware that 
19 

Cortez Chenault had testified to sitting with petitioner in petitioner’s car, two houses away from the 

gas station. Id. at 31. Edison was also aware of Vonique Campbell’s statement that she did not 

remember Ronald Scott coming into the gas station before the robbery to buy pop. Id. at 36. On 

cross-examination, Edison testified that his trial strategy was not to attack Janisch’s credibility but 

rather that Chenault would have also been privy to the same information as petitioner about 

Janisch’s pick-up and the possibility of Janisch carrying in excess of $19,000. Id. at 43. Edison did 

not recall exactly when the Salameys had showed him the receipt signed by Senella Gant, whether it 

was before or after he waived her as a witness. Id. at 47. Mohamed Salamey, petitioner’s father, 

discussed the surveillance tape with Edison and the expansive perimeter of the area monitored by the 

video surveillance, and Edison had followed up by speaking with the prosecution about the tape. Id.

at 48. Edison did not recall the specifics of what Salamey had told him about what was captured by 

the video surveillance the day of the robbery. Id. at 49. Edison had visited the gas station himself and 

knew what could be seen from various vantage points. Id. at 49. On redirect examination, Edison 

agreed that the March 19 receipt signed by Janisch and Gant provided the same pick-up information 

as the March 19 receipt signed by Janisch and petitioner, but Edison said it also “could have possibly 

raised an issue on Janisch’s credibility, and may have provided an additional factor to argue.” Id. at 

54. 

Petitioner next presented the testimony of Mohamed Salamey, his father. Salamey testified 

that he owned the Fast Track Gas Station in the City of Detroit in question in this case. Ginther Hr’g 

Tr., dated 9/14/07, at 4. Beginning February 22, 2005, about a month before the robbery in question, 

Janisch had begun picking up the daily proceeds for gasoline as a representative of Atlas Oil. Id. at 

5-6. If Salamey or his son were not present, any employee on duty at the station would sign the 
20 

receipt for the pick-up of the proceeds. Id. at 7. Looking through the receipts beginning February 22, 

Salamey confirmed that employee Latisha Hodges signed the February 22 receipt, that employee Mr. 

Harris signed the February 25 receipt, that petitioner had signed several receipts, that he himself had 

signed some of the receipts, and that Janisch had signed all of the receipts. Id. at 7-11. There had 

been about seven other robberies at the station. Id. at 15. In addition to the nine video surveillance 

cameras already at the station, the Salameys added three more cameras on February 27. Id. at 16. 

The cameras showed the entire perimeter of the gas station, including Alter Road. Id. at 17. There 

was a brick wall behind the station along Alter Road. Id. at 18. The only way to preserve the images 

from the surveillance cameras, which were fed into a computer, was to download them to a disk. Id.

at 19. All twelve camera views could have been watched simultaneously. Id. at 19. After the 

robbery, three police officers watched the surveillance videos with petitioner and Janisch; Detective 

McClure came out to the station that evening but did not view the tapes. Id. at 22. The day after the 

robbery, McClure and another detective returned with a search warrant and took with them the hard 

drive with the video surveillance images. Id. at 22-24. McClure said, “If it’s up to me, you and your 

son be in jail tonight.” Id. at 24. When Salamey finally got the hard drive back, the images were 

gone. Id. at 25. Salamey heard Cortez Chevault testify that he, Chevault, sat with petitioner in 

petitioner’s white car on Alter Road; Salamey testified that petitioner’s car was a dark gray Grand 

Am and that there was a wall blocking the view of the station from Alter Road. Id. at 26. Chenault 

was Salamey’s employee. Id. at 27. Salamey also testified that the video surveillance tapes did not 

show anyone coming into the store to buy pop or anyone in front of the Dollar Store across the 

street, as against the codefendants’ testimony at trial. Id. at 28. Salamey gave Edison a copy of the 

March 19 receipt signed by Senella Gant when he realized it was not in evidence. Id. at 29. Salamey 
21 

confirmed that Janisch had testified that he never brought weekend proceeds with him on Monday 

pick-ups, that the Monday, March 21, receipt showed a pick-up of only $4,646, and that therefore 

petitioner would have no way of knowing that Janisch would be carrying $19,000 that Monday. Id.

at 31. The court said that Salamey could not be aware of everything that petitioner knew and that 

trying to discredit Janisch on such a point seemed like misguided trial strategy, while petitioner’s 

counsel argued that it went towards a defense creating reasonable doubt about petitioner’s motive. 

Id. at 30-36. The court also pointed out that it doubted the co-conspirators could have cooked up 

such a plausible story immediately after being arrested. Id. at 37. On cross-examination, Salamey 

testified that he never saw the surveillance video clip played at trial, and that if the transcript reflects 

that, it is in error. Id. at 41. Salamey himself was not present at the station on March 19 or 20, so he 

cannot personally verify having seen Janisch at the station on those days. Id. at 42. The gas station 

itself had been robbed seven times. Id. at 43. The court also inquired about convictions, so on 

redirect examination, Salamey testified that he had no prior criminal convictions but that petitioner 

did have one when he was seventeen. Id. at 44. 

Petitioner also presented the testimony of Senella Gant. Gant testified that she saw the March 

21 robbery occur. Id. at 46. Janisch had a key to the back office. Id. at 47. Gant identified her 

signature—her initials—on Exhibit B to Defendant’s Motion for New Trial, and that Exhibit B was a 

receipt. Id. at 47. She had signed these receipts before, when Janisch had stopped by and neither 

Salamey nor petitioner were not there. Id. at 48. Gant had been interviewed and given a statement, 

but she could not remember who interviewed her. Id. at 48. Chenault had come into the gas station 

on the morning of the robbery; he made a visit to the back room and came out irate. Id. at 50. Gant 

saw Chenault take petitioner’s cell phone to the back room. Id. at 53. On cross-examination, she 
22 

testified she did not know of any reason why Janisch would have petitioner sign the same receipt 

that she signed. Id. at 54. She did not know of any friendship between Janisch and petitioner outside 

of their business relationship. Id. at 55. 

The prosecution presented the testimony of Investigator McClure. McClure testified that he 

was on the Financial Response Team, formerly Armed Robbery, at the time of the March 21 robbery 

and that he was one of the officers in charge of the case. Id. at 57. McClure obtained a search 

warrant to procure the hard drive, because he had asked Salamey and petitioner for a copy of the 

tape but was unsuccessful in getting one. Id. at 58. The Michigan State Police downloaded the 

information from the hard drive. Id. at 59. The hard drive was then stored, unplugged, on a shelf in 

the evidence locker. Id. at 59. The tape was not played at trial; stills had been made from the tape 

that were shown as evidence in court. Id. at 59. McClure had received a Bachelor’s degree in 

Information Systems from the University and therefore had a knowledge of computers; he said the 

hard drive would not rewrite itself if the computer is not plugged in. Id. at 60. He did not tell the 

codefendants to blame petitioner. Id. at 61. On cross-examination, McClure testified that the State 

Police made him a VHS tape with the surveillance footage of the robbery; he instructed the State 

Police that he only wanted them to download the footage “within the proximity of the robbery.” Id. 

at 61-62. It took up to four days before he was able to get an appointment with the State Police. Id. at 

64. McClure agreed that the images on the hard drive were evidence but that he was only interested 

in the portion capturing the robbery. Id. at 63. To the “best of [his] knowledge,” all of the footage 

was still on the hard drive when he returned it to the Salameys two and a half months later. Id. at 65. 

McClure had taken a statement from Sharod Scott, sister of codefendant Ronald Scott, on March 22, 

2005, in which she testified that she immediately knew Chenault was involved and had organized 
23 

the robbery. Id. at 66-67. 

C. Standard of Review

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

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] 
24 

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] 

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 
25 

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.). 

D. Loss of Exculpatory Evidence

 Petitioner contends that he was denied his right to due process because of the loss of material 

exculpatory evidence, or alternatively the loss of potentially exculpatory evidence in bad faith. 

petitioner argues that the prosecution failed to download surveillance footage and allowed the hard 

drive on which video surveillance was captured to rewrite itself, thus deleting the un-downloaded 

footage. Because the evidence was not material and the prosecution did not act in bad faith, the 

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

 1. Clearly Established Law 

 The Due Process Clause requires the state to disclose exculpatory evidence to the defense. 

See Brady v. Maryland, 373 U.S. 83 (1963). “There are three components of a true Brady violation: 

The evidence at issue must be favorable to the accuse, either because it is exculpatory, or because it 

is impeaching; that evidence must have been suppressed by the State, either willfully or 

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 

Thus, in order to establish a Brady claim, petitioner must show that: (1) evidence was suppressed by 

the prosecution in that it was not known to petitioner and not available from another source; (2) the 

evidence was favorable or exculpatory; and (3) the evidence was material to the question of 

petitioner’s guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); Luton v. Grandison, 44 F.3d 

626, 628-29 (8th Cir. 1994); see also, Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Moore v. 

Illinois, 408 U.S. 786, 794-95 (1972). Petitioner bears the burden of establishing each of these three 
26 

elements. See Carter, 218 F.3d at 601. 

 The Brady rule extends to evidence which is not suppressed but is lost or destroyed. See 

California v. Trombetta, 468 U.S. 479, 489 (1984). This rule applies only to material exculpatory 

evidence, that is, evidence which “both possess[es] an exculpatory value that was apparent before 

the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain 

comparable evidence by other reasonably available means.” Id. at 488-89. However, “the Due 

Process Clause requires a different result when we deal with the failure of the State to preserve 

evidentiary material of which no more can be said than that it could have been subjected to tests, the 

results of which might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 58 

(1988). In a case involving potentially useful evidence, the defendant must “show bad faith on the 

part of the police.” Id.; see also, Illinois v. Fisher, 540 U.S. 544, 548 (2004) (per curiam). As the 

Sixth Circuit has explained, Trombetta and Youngblood establish “[s]eparate tests . . . to determine 

whether the government’s failure to preserve evidence rises to the level of a due process violation in 

cases where material exculpatory evidence is not accessible, versus cases where ‘potentially useful’ 

evidence is not accessible.” United States v. Wright, 260 F.3d 568, 570 (6th Cir. 2001). 

 Where the Youngblood bad faith requirement applies, “[t]he presence or absence of bad faith 

by the [government] for the purposes of the Due Process Clause must necessarily turn on the 

[government’s] knowledge of the exculpatory value of the evidence at the time it was lost or 

destroyed.” Youngblood, 488 U.S. at 56. Thus, “where the government is negligent, even grossly 

negligent, in failing to preserve potential exculpatory evidence, the bad faith requirement is not 

satisfied.” Wright, 260 F.3d at 571; see also, United States v. Garza, 435 F.3d 73, 75 (1st Cir. 2006). 

Further, the requirement that a defendant show bad faith is not eliminated by the existence of a 
27 

pending discovery request for evidence, see Fisher, 540 U.S. at 548, nor does it depend on “the 

centrality of the contested evidence to the prosecution’s case or the defendant’s defense[.]” Id. at 

549. 

 2. Analysis

 The court of appeals’s application of clearly established law was objectively reasonable 

regarding the lost surveillance footage. Petitioner argues that the lost evidence is material, or 

alternatively, that the police failed to preserve the evidence in bad faith. The court of appeals 

reasonably concluded that the evidence was neither material nor lost in bad faith. 

 The evidence was not material because petitioner could have obtained it by other reasonably 

available means. Petitioner argues that lost surveillance footage would have undermined the 

credibility of the codefendants by contradicting their testimony that (1) Michael Boyd was across the 

street at the Dollar Store before the robbery, (2) that Ronald Scott entered the gas station to buy a 

soda pop, and (3) that Chenault watched the robbery with petitioner in petitioner’s car from a 

location on Alter Road. Pet’r’s Mem., at 10. However, Vonique Campbell, the gas station employee 

working the day of the robbery, in her interview with the police shortly after the robbery, stated that 

she had seen the perpetrators of the robbery and that none of them had entered the station. Pet’r’s 

Mem., at 27. Salamey also testified to the existence of a wall behind the gas station blocking the 

view from Alter Road. Pet’r’s App., at 199A. Thus petitioner had access to other evidence to 

undermine the codefendants’ credibility on these points, so the lost footage was not material 

evidence. 

 It was also reasonable for the court of appeals to find that the police did not act in bad faith. 

Petitioner alternatively argues that Detective McClure acted in bad faith. The court of appeals 
28 

accepted that McClure knew that the hard drive would rewrite itself but found that “Investigator 

McClure would have no reason to believe that the slight variations in the testimony of the witnesses 

regarding events on the day of the robbery would require extensive examination of the lengthy 

surveillance footage. Further, there is absolutely no evidence that Investigator McClure purposely 

erased the footage from the hard drive or knowingly allowed the hard drive to rewrite.” Salamey, 

2008 WL 3876102, at *2. Petitioner argues that inconsistencies in McClure’s testimony point to bad 

faith. However, it is undisputed that the data was on the hard drive at the point when the state police 

lab downloaded the footage onto the tape, and thereafter the hard drive was stored unplugged. 

McClure testified that he thought the system would not rewrite itself while it was unplugged 

(Ginther Hr’g Tr., dated 9/14/07, at 60). Petitioner says that the police activity was “intentional 

destruction of evidence, or a careless disregard for the preservation of evidence.” Pet’r’s Mem., at 

40. But there is no evidence of intentional destruction of the footage, and even if McClure and the 

other police were grossly negligent in thinking that the hard drive would not rewrite itself when 

unplugged, that does not constitute bad faith. Accordingly, it was reasonable for the court of appeals 

to find that no bad faith occurred on the part of the police involved, and petitioner therefore is not 

entitled to habeas relief in this claim. 

E. Sentencing Claim 

Petitioner argues that the trial court’s scoring of OV-14 was based on inaccurate information, 

invoking the rule established in Townsend v. Burke, 334 U.S. 736 (1948), and United States v. 

Tucker, 404 U.S. 443 (1972). Because the legal sufficiency of the facts is a state law claim that is not 

recognizable under habeas review, the Court should conclude that the petitioner is not entitled to 

relief on this claim. 
29 

1. Clearly Established Law 

In Townsend v. Burke, 334 U.S. 736 (1948), and United States v. Tucker, 404 U.S. 443 

(1972), “the United States Supreme Court invalidated defendants’ sentences because they were 

imposed by trial courts in reliance upon material false assumptions of fact.” Eutzy v. Dugger, 746 

F.Supp.1492, 1504 (N.D. Fla. 1989) (discussing Townsend and Tucker); accord Stewart v. Peters, 

878 F.Supp. 1139, 1144 (N.D. Ill. 1995) (same). See generally, Tucker, 404 U.S. at 448-49; 

Townsend, 334 U.S. at 740-41. It is well established, however, that a Tucker violation arises only 

where the improper information “actually served as the basis for the sentence.” United States v. 

Jones, 40 Fed. Appx. 15, 17 (6th Cir. 2002) (internal quotation omitted); see also, Lechner v. Frank, 

341 F.3d 635, 639 (7th Cir. 2003); United States v. Johnson, 767 F.2d 1259, 1276 (8th Cir. 1985). 

“A sentencing court demonstrates reliance on misinformation when the court gives ‘explicit 

attention’ to it, ‘found[s]’ its sentence ‘at least in part’ on it, or gives ‘specific consideration’ to the 

information before imposing sentence.” Lechner, 341 F.3d at 639 (quoting Tucker, 404 U.S. at 444, 

447). Thus, to be entitled to habeas relief on this claim petitioner “must show that the sentencing 

court actually relief on this information and that it was materially false.” Hanks v. Jackson, 123 

F.Supp. 2d 1061, 1074 (E.D. Mich. 2000) (Gadola, J.). 

 2. Analysis 

Petitioner’s claim that the trial court erred in scoring OV-14 does not raise a cognizable 

claim for habeas relief. Petitioner contends that the trial court erred in scoring OV-14, claiming that 

the 10-point assessment for petitioner’s leadership role, Mich. Comp. Laws § 777.44, is based on 

“sheer speculation” about whether petitioner “drew the others into the crime,” Pet’r’s Mem., at 47. 

Petitioner highlights the criminal histories of co-defendants Fegan, Chenault, and R. Scott to make 
30 

the point that it is only speculation that the crime would not have been committed but for petitioner’s 

influence. Pet’r’s Mem., at 48. Contrary to petitioner’s argument, there was evidence adduced at 

trial, through the testimony of petitioner’s co-conspirators, that petitioner came up with the idea for 

the robbery and played a leading role in planning it. Thus the trial court’s finding of leadership is a 

legal determination based on petitioner’s convicted behavior. Petitioner’s argument does not assert 

reliance on any materially false factual assumptions made by the trial court about petitioner’s 

involvement in the crime; it is directed at the legal effect given to the facts by the trial court. 

 Additionally, the legal sufficiency of the facts to support a scoring of 10 points under OV-14 

is a question of state law that 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 proceedings. See 

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988); Haynes v. Butler, 825 F.2d 921, 924 (5th 

Cir. 1987). The legal sufficiency of the facts to support a scoring of 10 points under OV-14 is a 

question of state law which is not cognizable on habeas review. MICH. COMP. LAWS § 777.44. 

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 the guidelines range raises an issue of state law 

that is 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, Brenan, 851 F.2d 

at 1508 (claim that court misapplied state sentencing guidelines not cognizable on habeas review). 
31 

 Further, a Tucker violation arises only where the improper information “actually served as 

the basis for the sentence.” United States v. Jones, 40 Fed. Appx. 15, 17 (6th Cir. 2002) (internal 

quotation omitted); see also, Lechner, 341 F.3d at 639. In this case, even with the ten additional 

points added to petitioner’s OV-14 for a leadership role in the crime, the bump up in points did not 

affect petitioner’s sentence range. Pet’r’s App., Sentencing Tr., at 248A. Without the ten points, 

petitioner’s OV level would have been twenty; with the additional ten points, it was at thirty. 

Petitioner’s convicted behavior of armed robbery and conspiracy to commit armed robbery is Class 

A for the purposes of minimum sentence ranges. See MICH. COMP. LAWS § 777.16y. On this grid, 

both twenty points and thirty points would fall into range II. See MICH. COMP. LAWS § 777.62. 

Thus, since the additional points did not affect which range petitioner was in, the information cannot 

be said to have served as the basis for the sentence. Accordingly, the Court should conclude that 

petitioner is not entitled to habeas relief on this claim. 

F. Ineffective Assistance of Counsel 

Petitioner also raises a number of claims challenging the assistance rendered by his trial and 

appellate attorneys, arguing that counsel failed to investigate potential witnesses and evidence and 

failed to object to inappropriate evidence. 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 corollary 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 
32 

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. See 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 of course should be 

followed.” Id. at 670. 

With respect to the performance prong of the inquiry, a strong presumption exists that 

counsel’s behavior lies within the wide range of reasonable professional assistance. See id. at 689; 

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. 

2. Failure to Investigate and Call Witnesses 

 Petitioner first contends that counsel was deficient for failing to investigate potential 

witnesses and testimony. Petitioner argues that counsel was ineffective because of his “failure to 

investigate and establish all substantial defenses available to petitioner; . . . [and his] waiver of 

Senella Gant’s testimony, which directly contradicted the testimony of the victim, Tyson Janisch, 

and thereby undercut petitioner’s alleged motive to commit the robbery. . . .” Pet’r’s Mem., at 14.
33 

Petitioner argues that Gant’s testimony about her signing a receipt for Saturday, March 19, could 

have undermined Janisch’s testimony that he did not make a pick-up over the weekend. However, 

there is no evidence that the date on the receipt showed the actual date of pick-up and would have 

even supported petitioner’s argument. To keep the accounting straight, receipts could be dated for 

the day proceeds were taken in rather than the day they were picked up. Indeed, the prosecution 

introduced separate spread sheets generated by the station for each day’s receipt. See Answer, at 6. 

The undisputed fact that $19,124 was recovered, Pet’r’s Mem., at 15; Answer, at 5, supports this. 

Additionally, there is no showing of prejudice anyway, because Janisch’s credibility is not a key 

factor. He did not testify about petitioner’s involvement. It is undisputed that the robbery occurred—

the question is whether petitioner was involved. As far as petitioner’s motive is concerned, whether 

or not Janisch made a Saturday pick-up, Janisch would still have been picking up thousands of 

dollars on Monday. Even if it would not have been as much, there would still be a motive. Thus 

counsel was not deficient for waiving Senella Gant’s testimony. 

 Petitioner also argues that counsel was deficient for failure to call petitioner’s father, 

Salamey, as a witness because his testimony about the lost video surveillance footage would have 

contradicted codefendants’ version of events and undermined their credibility. Petitioner argues that 

counsel was deficient for “failure to investigate and introduce relevant and material evidence 

available to him which directly contradicted the credibility of the alleged co-conspirators’ testimony 

and undercut petitioner’s alleged motive for the robbery and refuted his opportunity to commit the 

robbery; . . . and failure to call petitioner’s father, Mohamed Salamey, as a witness. . . .” Pet’r’s 

Mem., at 14. However, counsel had already worked to undermine the codefendants’ testimony at 

trial, Ginther Hr’g Tr, dated 8/24/07, at 25, and he did so extensively through his cross-examination 
34 

at trial. It is not reasonably probable that an attempt to impeach them slightly more through the 

testimony of petitioner’s father, who was far from disinterested, would have made a difference in the 

jury’s determination of their credibility. Thus petitioner cannot show that he was prejudiced by 

counsel’s failure to call petitioner’s father as a witness. 

 3. Failure to Object to and Seek Relief for Inappropriate Evidence 

 Petitioner also contends that counsel was ineffective for failing to object to and seek relief for 

the surveillance video clip used as evidence. Petitioner argues that counsel was deficient for “failure 

to object to the admission of the video surveillance tape that had been edited to delete vital 

information critical to petitioner’s defense; failure to seek appropriate relief for the prosecution’s 

deletion and destruction of evidence pertaining to the video surveillance tape; [and] failure to object 

to admission of the video surveillance tape based on discovery violations.” Pet’r’s Mem., at 14. The 

admission of the videotape itself was not objectionable because it accurately depicted the robbery. 

That the video showed the actual robbery is not disputed; thus it was appropriately admitted into 

evidence. As far as the loss of the peripheral surveillance footage, petitioner could not show that the 

lost footage was material evidence or that the police acted in bad faith, see supra, part D.2, so 

counsel was not deficient for failure to bring an empty claim. 

 Thus, for the aforementioned reasons, petitioner has not shown that his trial counsel was 

ineffective. 

G. 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 
35 

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)). 

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 
36 

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 recommendations regarding the merits of petitioner’s claims, it 

should also deny petitioner a certificate of appealability because the Court’s resolution of his claims 

is not debatable among reasonable jurists. The court of appeals’s judgment regarding petitioner’s 

claim of denial of due process in the loss of evidence was clearly a reasonable application of 

established law because the evidence was not material and the prosecution did not act in bad faith. 

Further, it is not reasonably debatable that the legal sufficiency of the facts to support the scoring of 

OV-14 is a state law claim not cognizable under habeas review. Finally, the court of appeals’s 

judgment regarding petitioner’s claim of ineffective trial counsel was clearly reasonable because 

counsel’s decisions were reasonably strategic and any lack of investigation did not prejudice 

petitioner. Thus, the Court should deny petitioner the certificate of appealability. 

H. 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 
37 

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 

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: 6/30/10
38 

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 30, 2010.

s/Eddrey Butts 

Case Manager