UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT JAY BOADWAY, JR.,

Petitioner,

CASE NO. 2:09-CV-12328

v. HONORABLE AVERN COHN

NICK LUDWICK,

Respondent.

________________________________/

MEMORANDUM AND ORDER DENYING THE PETITION FOR HABEAS CORPUS

AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Robert Jay

Boadway, Jr. (“Petitioner”) was convicted of three counts of first-degree criminal sexual

conduct, MICH. COMP. LAWS § 750.520b, and two counts of second-degree criminal sexual

conduct, MICH. COMP. LAWS § 750.520c, following a jury trial in the Otsego County Circuit

Court. He was sentenced to concurrent terms of 171⁄2 to 30 years imprisonment and 7 to

15 years imprisonment. Petitioner raises claims concerning the conduct of the

prosecutor, the effectiveness of trial counsel, and the validity of his sentence. For the

reasons that follow, Petitioner’s claims do not warrant habeas relief. According, the

petition will be denied. The Court also will decline to issue a certificate of appealability.

II. Facts and Procedural History

Petitioner’s convictions arise from his sexual misconduct with his stepdaughter at

their home in Otsego County, Michigan when she was between 12 and 15 years of age. 

The victim, who was 18 years old at the time of trial, testified that she was six or seven

years old when Petitioner came to live with her, her mother, and her mentally-disabled

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brother. Her mother then married Petitioner and they had two more children before

divorcing in October, 2003. The victim said that did not have a very good relationship with

Petitioner. He was a disciplinarian who spanked her a lot when she was younger and

later took “everything away” from her as punishment.

Relative to the sexual assaults, the victim testified that she saw Petitioner smelling

her underwear when she put her clothes in the dirty laundry before taking a shower. He

continued to do so even when she kept her underwear in her room or put it downstairs. 

The victim testified that on one occasion Petitioner wrapped his arms around her,

“grabbed her boobs,” and touched her “crotch.” He also forced her to have sex with him

in his bedroom while her mother was at work and the other children were in bed. She

said that the sexual touching occurred three or more times and that the sexual intercourse

occurred 10 or 11 times. Both began when she was 12 years old and stopped before

Petitioner moved out of the home in October, 2003.

The victim also discussed an incident when Petitioner grabbed her and shook her

when he was drunk, thereby bruising her arm. Her cheerleading coach saw the bruise,

would not let her go home, and contacted social services. She told the social worker how

she got the bruise and Petitioner got into trouble for it. She did not report any sexual

abuse at that time. She explained that she was scared of Petitioner and he had

threatened to hurt her family.

The victim spoke to a school counselor named Stacey Shafto after her mother and

Petitioner divorced. She told Shafto about Petitioner’s physical abuse and, in time, about

his sexual abuse. She also told two friends, Jimmy and Ryan, and her boyfriend, Andrew

Peck, about the sexual abuse. Both Shafto and her boyfriend encouraged her to report

the sexual abuse. Shafto gave her a week to think about it. The victim went to the police

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in January, 2006. The victim testified that she also told her mother about the sexual

abuse once, but her mother thought that she was making it up to get rid of Petitioner. 

This made her reluctant to report the sexual abuse because she feared that no one else

would believe her either. The victim acknowledged that her relationship with her mother

was not very good during that time period because they fought a lot and did not see each

other much due to their schedules. She admitted that she had “honesty issues” with her

mother and Petitioner. She also stated that Petitioner and her mother had problems with

alcohol and there was a lot of fighting and tension in their home.

The victim also testified that she had a personal protection order issued against

Petitioner in May 2006. In her petition, she stated that she was seeking the order

because she kept seeing Petitioner near her workplace staring at her and because he had

sexually assaulted her in the past. The personal protection order was admitted into

evidence. The victim further testified that she previously obtained another personal

protection order against Petitioner shortly after he and her mother divorced because she

was scared of him and thought he blamed her for the divorce. 

The victim testified that she reported the sexual abuse to Michigan State Police

Trooper Bannon. She gave Bannon a letter that she had written to her boyfriend

describing the abuse, and then they spoke about it. The victim read portions of the letter

aloud at trial and the letter was admitted into evidence. The victim also testified that

Petitioner wrote her letters concerning her behavior and her relationship with her mother

and did some drawings. She gave those materials to Trooper Bannon and they were

admitted into evidence.

The victim’s mother, Leandra Murphy, testified that she and Petitioner were

married from 1995 to 2003. She acknowledged that she and Petitioner fought a lot during

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their marriage and had problems with alcohol. Murphy recalled her daughter complaining

about Petitioner, but could not remember specifics or any complaints of sexual abuse. At

the time, Murphy believed that her daughter was trying to break up the marriage. Murphy

testified that she did not spend much time with her daughter when she was between 12

and 15 years of age because she worked nights and her daughter went to school during

the day. She thought that her daughter lied sometimes like a normal teenager. She

remember the slide and toy incidents. Murphy also testified that she did like how

Petitioner disciplined the children. She explained that he would make them go outside

and lock them out of the house, order them to their rooms, and not let them watch

television. She did not notice whether her daughter had stopped eating for a week nor did

she observe any cuts on her daughter. Murphy said that she took her daughter to the

doctor or hospital whenever she needed medical attention. Murphy also discussed her

recollections about her daughter’s bruised arm and the ensuing investigation. Although

her daughter returned home following that incident, she moved out after Murphy and

Petitioner were divorced.

The victim’s boyfriend, Andrew Peck, testified that he had known the victim for

three years, they had been dating for 11 months, they were engaged, and they had

recently moved in together. Peck testified that the victim told him about her relationship

with Petitioner and wrote Peck a letter describing some of the things that had happened. 

Peck said that she had a hard time discussing such matters and often cried during those

conversations. She told him that she hated Petitioner because of his controlling nature

and physical abuse. Peck recommended that the victim report the abuse to her counselor

and the authorities, and accompanied her to the police station.

The victim’s counselor, Stacy Shafto, testified that she began counseling the victim

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in 2004. The victim was relieved that her mother and Petitioner were getting a divorce. 

The victim reported Petitioner’s physical abuse during their early counseling sessions but

did not report the sexual abuse until 2006. Shafto recommended that the victim report the

abuse to the authorities and gave her a week to think about. When the victim agreed to

report the abuse, Shafto went with her to the police station. Shafto had been a counselor

for seven and a half years and had dealt with other sexual abuse cases. She testified that

it was not uncommon for victims to delay reporting such matters. Shafto said that the

victim told her that Petitioner was responsible for her bruises, that he had abused

animals, and that he was physically and verbally abusive. The victim also said that she

did not have a good relationship with her mother.

Michigan State Police Trooper Mary Bannon testified that she took the victim’s

complaint on February 7, 2006. Bannon read the victim’s letter to her boyfriend first and

then questioned the victim about her claims of sexual touching and intercourse. Bannon

also read Petitioner’s letters to the victim and viewed his drawings. Bannon interviewed

Petitioner on March 4, 2006. He initially denied writing letters to the victim and drawing

her pictures, but admitted writing the letters when confronted with them. He continued to

deny drawing the pictures. Petitioner denied any sexual contact with the victim. He said

that she was a compulsive liar and related incidents of her lying. Bannon acknowledged

that there was no physical evidence to support the victim’s claims of sexual abuse. 

Petitioner testified in his own defense at trial. He said that he got along with his

step-children, but he became the disciplinarian in the household. He confronted the

victim when she lied and when she was rude to her mother. He recalled an incident in

which he observed their swing set slide outside the victims’ bedroom window. He and his

ex-wife confronted the victim about it. She initially denied sneaking out of the house and

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cried, but eventually admitted it when they tricked her into believing that neighbors saw

her leaving the house. He also recalled an incident in which the victim lied about taking a

toy from another child. Petitioner admitted paddling the children a few times, but said that

he eventually stopped doing so and began to take away their electronics instead. He also

admitted drinking and fighting with his ex-wife. Petitioner denied smelling the victim’s

underwear and denied committing the sexual assaults. He believed that the victim did not

like being disciplined by him and that she was upset because he was not spending

enough time with his two younger children.

B.

The jury convicted Petitioner of three counts of first-degree criminal sexual conduct

and two counts of second-degree criminal sexual conduct. As noted above, Petitioner

was subsequently sentenced him to concurrent terms of 17 1⁄2 to 30 years imprisonment

and 7 to 15 years imprisonment on those convictions, respectively.

Following his convictions and sentencing, Petitioner filed an application for leave to

appeal with the Michigan Court of Appeals, which was denied for lack of merit in the

grounds presented. People v. Boadway, No. 281469 (Mich. Ct. App. May 15, 2008)

(unpublished). Petitioner also filed an application for leave to appeal with the Michigan

Supreme Court, which was denied. People v. Boadway, 482 Mich. 1058, 758 N.W.2d 245

(2008).

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

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

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

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

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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 proceedings.

28 U.S.C. § 2254(d).

“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 [that] precedent.’” Mitchell v. Esparza,

540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06

(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). “[T]he ‘unreasonable

application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the

state court identifies the correct governing legal principle from [the Supreme] Court but

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

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

694. The state court’s decision must have been more than incorrect or erroneous. It

must have been ‘objectively unreasonable.’ Wiggins, 539 U.S. at 520-21 (citations

omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential

standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be

given the benefit of the doubt.’” Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010)

(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per

curiam)).

The Supreme Court recently held that “a state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington v. Richter, _ U.S. _, 131 S.

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Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003). Pursuant to § 2254(d), “a habeas court must determine what arguments or

theories supported or . . . could have supported, the state court’s decision; and then it

must ask whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. 

Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the

state court’s rejection of his claim “was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id.

While the requirements of “clearly established law” are to be determined by Supreme

Court precedent, the decisions of lower federal courts may be useful in assessing the

reasonableness of the state court’s ruling. See Stewart v. Erwin, 503 F.3d 488, 493 (6th

Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v.

Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

Finally, a state court’s factual determinations are presumed correct on federal

habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61

(6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the

state court.” Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).

IV. Analysis

A. Prosecutorial Misconduct Claim

Petitioner first claims that he is entitled to habeas relief because the prosecutor

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engaged in misconduct by using false testimony and hearsay of physical abuse to

denigrate him and mislead the jury. The Supreme Court has stated that prosecutors must

“refrain from improper methods calculated to produce a wrongful conviction.” Berger v.

United States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial misconduct,

a habeas petitioner must demonstrate that the prosecutor’s actions “so infected the trial

with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637 (1974).

The Court of Appeals for the Sixth Circuit has adopted a two-part test for

determining whether prosecutorial misconduct violates a defendant’s due process rights. 

See Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002) (citing cases). First, the court

must determine whether the challenged statements were indeed improper. Id. at 452. 

Upon a finding of impropriety, the court must decide whether the statements were

flagrant. Id. Flagrancy is determined by an examination of four factors: 1) whether the

statements tended to mislead the jury or prejudice the accused; 2) whether the

statements were isolated or among a series of improper statements; 3) whether the

statements were deliberately or accidentally before a jury; and 4) the total strength of the

evidence against the accused. Id.; see also Boyle v. Milton, 201 F.3d 711, 716 (6th Cir.

2000) (citing United States v. Francis, 170 F.3d 546, 540-50 (6th Cir. 1999)). “[T]o

constitute the denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and

persistent that it permeates the entire atmosphere of the trial,’ or ‘so gross as probably to

prejudice the defendant.’” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citations

omitted).

Petitioner contests the prosecutor’s use of allegedly false testimony from the

victim, her boyfriend, and her counselor. The Supreme Court has made clear that the

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“deliberate deception of a court and jurors by the presentation of known and false

evidence is incompatible with the rudimentary demands of justice.” Giglio v. United

States, 405 U.S. 150, 153 (1972). It is thus well-settled that “a conviction obtained by the

knowing use of perjured testimony is fundamentally unfair, and must be set aside if there

is any reasonable likelihood that the false testimony could have affected the judgment of

the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted); see also

Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 161 F.3d 320, 343 (6th Cir.

1998). A habeas petitioner bears the burden of proving that the disputed testimony

constituted perjury. Napue, 360 U.S. at 270. To prevail on a claim that a conviction was

obtained by evidence that the government knew or should have known to be false, a

defendant must show that the statements were actually false, that the statements were

material, and that the prosecutor knew that the statements were false. Coe, 161 F.3d at

343.

Petitioner makes no such showing. Although the victim’s and the witnesses’

testimony was certainly material, the record does not demonstrate that they provided false

testimony or that the prosecutor purposefully elicited false testimony. Petitioner

essentially challenges the credibility of their testimony, but has not shown it to be false. 

There is no evidence that the prosecution had reason to doubt the testimony of the

prosecution witnesses or otherwise knowingly presented false testimony. Petitioner

makes several generalized and unsupported allegations in his pleadings. However,

conclusory allegations without evidentiary support do not provide a basis for habeas relief. 

See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78 F. App’x

440, 442 (6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory

allegations of ineffective assistance of counsel do not justify habeas relief); see also

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Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory

allegations do not provide a sufficient basis to hold an evidentiary hearing in habeas

proceedings). Petitioner has failed to establish a violation of his constitutional rights.

Petitioner also asserts that the prosecutor improperly introduced and relied upon

alleged hearsay testimony and other acts evidence of physical abuse. The trial court,

however, admitted such testimony. It is not prosecutorial misconduct for a prosecutor to

offer and rely upon evidence which is deemed admissible by the trial court. See Cristini v.

McKee, 526 F.3d 888, 900 (6th Cir. 2008); Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir.

1997); Moore v. Stovall, No. 06-CV-14824, 2008 WL 2547418, *3 (E.D. Mich. June 20,

2008) (habeas petitioner could not establish that the prosecutor’s use of properly admitted

testimony constituted misconduct). Such testimony was relevant to explain the victim’s

relationship with Petitioner and the dynamics of their household. The victim’s letter and

prior statements, the counselor’s testimony, and the boyfriend’s testimony were also

admissible as prior consistent statements of the victim and not hearsay. See MICH. R.

EVID. 801(d). Petitioner has failed to establish that the prosecutor’s conduct was improper

or that it rendered his trial fundamentally unfair. Habeas relief is not warranted on this

claim.

B. Ineffective Assistance of Counsel Claims

Petitioner next asserts that he is entitled to habeas relief because trial counsel was

ineffective for failing to object to the alleged improper testimony, failing to investigate and

subpoena witnesses, failing to file a motion to suppress his statements to police, and

operating under a conflict of interest.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme

Court set forth a two-prong test for determining whether a habeas petitioner has received

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the ineffective assistance of counsel. First, a petitioner must prove that counsel’s

performance was deficient. This requires a showing that counsel made errors so serious

that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Id.

at 687. Second, the petitioner must establish that counsel’s deficient performance

prejudiced the defense. Counsel’s errors must have been so serious that they deprived

the petitioner of a fair trial or appeal. Id.

As to the performance prong, a petitioner must identify acts that were “outside the

wide range of professionally competent assistance” in order to prove deficient

performance. Id. at 690. The reviewing court’s scrutiny of counsel’s performance is

highly deferential. Id. at 689. Counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that

the challenged actions were sound trial strategy. Id. at 689.

To satisfy the prejudice prong under Strickland, a petitioner must show that “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A reasonable probability is one that is

sufficient to undermine confidence in the outcome. Id. “On balance, the benchmark for

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the [proceeding] cannot be relied on

as having produced a just result.” Id. at 686.

The Supreme Court has recently confirmed that a federal court’s consideration of

ineffective assistance of counsel claims arising from state criminal proceedings is quite

limited on habeas review due to the deference accorded trial attorneys and state

appellate courts reviewing their performance. “The standards created by Strickland and §

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2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’

so.” Harrington, 131 S. Ct. at 788 (internal and end citations omitted). “When § 2254(d)

applies, the question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard. Id. at 788.

Petitioner first asserts that trial counsel was ineffective for failing to object to the

alleged false testimony and hearsay. However, given the trial court’s and this Court’s

determination that such evidence was admissible, Petitioner cannot establish that counsel

erred or that he was prejudiced by counsel’s conduct. Defense counsel cannot be

deemed ineffective for failing to make a futile motion or objection. See, e.g., United

States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).

Petitioner also asserts that trial counsel was ineffective for failing to investigate and

call certain witnesses. Well-established federal law requires that defense counsel

conduct a reasonable investigation into the facts of a defendant’s case, or to make a

reasonable determination that such investigation is unnecessary. See Wiggins, 539 U.S.

at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338, 356 (6th

Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to investigate

“includes the obligation to investigate all witnesses who may have information concerning

his or her client’s guilt or innocence.” Towns, 395 F.3d 251 at 258. Decisions as to what

evidence to present and whether to call certain witnesses, however, are presumed to be

matters of trial strategy. When making strategic decisions, counsel’s conduct must be

reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also Wiggins, 539

U.S. at 522-23. The failure to call witnesses or present other evidence constitutes

ineffective assistance of counsel only when it deprives a defendant of a substantial

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defense. See Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004); Hutchison v.

Bell, 303 F.3d 720, 749 (6th Cir. 2002).

Petitioner alleges that trial counsel was ineffective for failing to call several

witnesses, such as the victim’s friends and grandparents, and for failing present additional

evidence, such as the victim’s medical records, which he claims would have established

his innocence. Petitioner, however, has failed to present any witness affidavits, medical

records, or other documentation to substantiate his claims. His speculative and

conclusory allegations regarding the content of such testimony and records fail to

establish that trial counsel was ineffective, that he was deprived of a substantial defense,

or that he is entitled to federal habeas relief. See Cross, 238 F. App’x at 39-40; Prince, 78

F. App’x at 442; Workman, 178 F.3d at 771; see also Washington, 455 F.3d at 733.

Moreover, the record before the Court indicates that trial counsel extensively crossexamined the victim about her allegations in an effort to discredit her, offered evidence of

her previous dishonest behavior and possible motives for her allegations, and presented

Petitioner’s own testimony in support of his defense and claim of innocence. Such a

strategy was reasonable under the circumstances. As the Supreme Court has recently

stated, “[t]here comes a point where a defense attorney will reasonably decide that a

[certain] strategy is in order, thus making particular investigations unnecessary. . . .Those

decisions are due a heavy measure of deference.” Cullen, 131 S. Ct. at 1407 (reversing

grant of habeas relief on ineffective assistance of counsel claim) (citations omitted). The

fact that trial counsel’s strategy was ultimately unsuccessful does not mean that counsel

was constitutionally ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002)

(“an ineffective-assistance-of-counsel claim cannot survive so long as the decisions of a

defendant’s trial counsel were reasonable, even if mistaken”). Petitioner has failed to

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establish that trial counsel was ineffective in this regard.

Petitioner also asserts that trial counsel was ineffective for failing to seek

suppression of his statements to police. In Miranda v. Arizona, 384 U.S. 436 (1966), the

Supreme Court held that statements made during a custodial interrogation of a suspect

are inadmissible at trial unless the defendant has voluntarily and knowingly waived certain

rights prior to making those statements. A defendant’s waiver of his Miranda rights must

be found, under the totality of the circumstances, to be voluntary, knowing, and intelligent.

 See Moran v. Burbine, 475 U.S. 412, 421 (1986).

The Fifth Amendment privilege against compulsory self-incrimination bars the

admission of involuntary confessions. See Colorado v. Connelly, 479 U.S. 157, 163-64

(1986). A confession is considered involuntary if: (1) the police extorted the confession

by means of coercive activity; (2) the coercion in question was sufficient to overbear the

will of the accused; and (3) the will of the accused was in fact overborne “because of the

coercive police activity in question.” McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988). 

In determining whether a confession is voluntary, the ultimate question is “whether, under

the totality of the circumstances, the challenged confession was obtained in a manner

compatible with the requirements of the Constitution.” Miller v. Fenton, 474 U.S. 104, 112

(1985). Those circumstances include: (1) police coercion (a “crucial element”), (2) length

of interrogation, (3) location of interrogation, (4) continuity of interrogation, (5) suspect’s

maturity, (6) suspect’s education, (7) suspect’s physical and mental condition, and (8)

whether the suspect was advised of Miranda rights. See Withrow v. Williams, 507 U.S.

680, 693-94 (1993). All of the factors should be closely scrutinized, Culombe v.

Connecticut, 367 U.S. 568, 602 (1961), but without coercive police activity, a confession

should not be deemed involuntary. Connelly, 479 U.S. at 167 (“coercive police activity is

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a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning

of the Due Process Clause”). The burden of proving that a statement was involuntary

rests with the petitioner. Boles v. Foltz, 816 F.2d 1132, 1136 (6th Cir. 1987).

In this case, Petitioner has failed to establish that his statements to Trooper

Bannon were obtained in violation of his Miranda rights or were otherwise involuntary. He

has offered no evidence to show that he was not advised of his rights and/or did not

voluntarily waive those rights, that he was in custody when he made his statements, that

he was coerced, or that any of the surrounding circumstances rendered his statements

involuntary. His conclusory allegations are insufficient to demonstrate that his statements

should have been suppressed. Consequently, Petitioner cannot establish that defense

counsel erred in failing to seek suppression of those statements. As noted, counsel

cannot be deemed deficient for failing to make a futile or meritless motion. Steverson,

230 F.3d at 225. Moreover, Petitioner has not shown that he was prejudiced by counsel’s

conduct. Petitioner’s statements to Trooper Bannon were not inculpatory as to the

charged offenses. Rather, Petitioner denied committing the sexual assaults and said that

the victim was a compulsive liar. Such statements did not implicate him in any

wrongdoing and were consistent with his defense at trial.

Lastly, Petitioner asserts that trial counsel had a conflict of interest because he told

the jury that he was good friends with the prosecutor. A criminal defendant is entitled to

the effective assistance of counsel free from conflict. See Holloway v. Arkansas, 435 U.S.

475, 483-84 (1978). The Court notes, however, that it is not unusual for opposing

attorneys to have friendly relationships outside of the courtroom, particularly in a small

legal community. Without more, such a friendship does not state a colorable claim of a

conflict of interest on the part of defense counsel. See, e.g., Howard v. United States,

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Nos. 05-12-P-H, 07-27-P-H, 2007 WL 1810709, *16 (D. Maine June 21, 2007) (banter

between defense counsel and prosecutor did not raise tenable conflict of interest claim);

Snyder v. United States, Nos. 2:06-CV-348, 2:05-CR-60, 2007 WL 1231780, *6 (S.D.

Ohio April 25, 2007) (adopting magistrate judge’s recommendation and denying relief on

similar claim). Petitioner has offered no facts which show that trial counsel had a

personal interest at stake or maintained such a close friendship with the prosecutor that

his client loyalty could be called into question. Petitioner has failed to establish that

counsel had a conflict of interest or was otherwise ineffective. Habeas relief is not

warranted on such a basis.

C. Sentencing Claims

Petitioner also asserts that he is entitled to habeas relief because the trial court

erred in scoring his sentencing guidelines and imposing costs, his sentence was imposed

in violation of his Sixth Amendment rights, and his sentence is disproportionate and

constitutes cruel and unusual punishment under the Eighth Amendment.

As an initial matter, Petitioner's sentences are within the statutory maximums. See

MICH. COMP. LAWS §§ 750.520b, 750.520c. A sentence within the statutory limit is

generally not subject to federal habeas review. See Townsend v. Burke, 334 U.S. 736,

741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Claims which

arise out of a state court's sentencing decision are not normally cognizable upon habeas

review, unless the petitioner can show that the sentence imposed exceeded the statutory

limits or is wholly unauthorized by law. See Lucey v. Lavigne, 185 F. Supp. 2d 741, 745

(E.D. Mich. 2001). Petitioner makes no such allegation.

Petitioner asserts that the trial court erred in scoring his sentencing guidelines and

imposing costs. Any claim that the trial court erred in scoring offense variables under the

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state sentencing guidelines is not cognizable on federal habeas review because it is a

state law claim. Austin v. Jackson, 231 F.3d 298, 302 (6th Cir. 2000); Howard v. White,

76 F. App’x 52, 53 (6th Cir. 2003) (“A state court’s alleged misinterpretation of state

sentencing guidelines and crediting statutes is a matter of state concern only.”); Haskell v.

Berghuis, 695 F. Supp. 2d 574, 598 (E.D. Mich. 2010); McPhail v. Renico, 412 F. Supp.

2d 647, 656 (E.D. Mich. 2006). State courts are the final arbiters of state law and the

federal courts will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780

(1990); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288

F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for perceived errors of state law.

See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

Similarly, Petitioner’s challenge to the trial court’s imposition of costs is not a

cognizable claim upon habeas review. See United States v. Watroba, 56 F.3d 28, 29 (6th

Cir. 1995) (monetary fine is not a sufficient restraint on liberty to meet the ‘in custody’

requirement of 28 U.S.C. § 2255); see also Barnickel v. United States, 113 F.3d 704, 706

(7th Cir. 1997) (ruling that continuing liability under a restitution order is similar to a

“fine-only” conviction, and is not a serious restraint on liberty so as to warrant habeas

relief and citing Tinder v. Paula, 725 F.2d 801, 805 (1st Cir. 1984)); Flores v. Hickman,

533 F. Supp. 2d 1068, 1085 (C.D. Cal. 2008) (restitution order included in California

sentence could not be challenged under federal habeas statute because restitution does

not affect duration of custody).

Petitioner also cannot prevail on any claim that his sentence was based upon

inaccurate information. A sentence may violate federal due process if it is carelessly or

deliberately pronounced on an extensive and materially false foundation which the

defendant had no opportunity to correct. See Townsend, 334 U.S. at 741; see also

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United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Sammons, 918 F.2d

592, 603 (6th Cir. 1990) (defendant must have meaningful opportunity to rebut contested

information at sentencing). To prevail on such a claim, a petitioner must show that the

trial judge relied on the allegedly false information. See United States v. Polselli, 747

F.2d 356, 358 (6th Cir. 1984); Draughn v. Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992). 

Petitioner makes no such showing. The state trial court considered the nature of the

crime, the pre-sentence report, and other permissible factors at sentencing. Petitioner

had an opportunity to contest the accuracy of the reports and the scoring of the

guidelines. Petitioner has not shown that the trial court relied upon materially false or

inaccurate information in imposing his sentence which he had no opportunity to correct. 

He is not entitled to relief on this claim.

Petitioner also asserts that the trial court erred by relying upon facts neither

admitted by him nor proven beyond a reasonable doubt in imposing his sentence. This

claim lacks merit. The Supreme Court cases relevant to this issue, such as Blakely v.

Washington, 542 U.S. 296 (2004), do not apply to Michigan's intermediate sentencing

scheme. The United States Court of Appeals for the Sixth Circuit has held that Michigan's

sentencing guidelines do not violate the Sixth Amendment because they set a minimum

sentence range while the maximum is set by statute. See Montes v. Trombley, 599 F.3d

490, 494–98 (6th Cir. 2010); Chontos v. Berghuis, 585 F.3d 1000 (6th Cir. 2009); see also

People v. Drohan, 475 Mich. 140, 160–61, 715 N.W.2d 778 (Mich. 2006). This Court is

bound by the Sixth Circuit's decisions. Because Petitioner's sentences are within the

statutory maximum penalties, which were not enhanced by judicial fact-finding, no Sixth

Amendment or due process violation occurred.

Lastly, Petitioner asserts that his sentence is disproportionate and constitutes cruel

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and unusual punishment. To the extent that Petitioner asserts that his sentence is

disproportionate under state law, he fails to state a claim for federal habeas relief. See

Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). Moreover, there is no federal

constitutional right to individualized sentencing. See United States v. Thomas, 49 F.3d

253, 261 (6th Cir. 1995). Petitioner is also not entitled to relief on his claim that his

sentence constitutes cruel and unusual punishment under the Eighth Amendment. The

United States Constitution does not require strict proportionality between a crime and its

punishment. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991). A sentence that falls

within the maximum penalty authorized by statute “generally does not constitute ‘cruel

and unusual punishment.’“ Austin, 213 F.3d at 302 (internal citation omitted). Petitioner's

sentences are within the statutory maximums for his offenses. The state trial court thus

acted within its discretion in imposing Petitioner's sentence and there is no extreme

disparity between his crimes and sentences so as to offend the Eighth Amendment. 

Habeas relief is not warranted.

V. Conclusion

For the reasons stated above, the state courts’ denials of relief are neither contrary

to Supreme Court precedent nor an unreasonable application of federal law or the facts. 

Petitioner is not entitled to habeas relief on the claims contained in his petition. 

Accordingly, the petition is DENIED.

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

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

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

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1

 “The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foll. § 2254.

21

U.S.C. § 2253(c)(2). 1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: October 27, 2011

I hereby certify that a copy of the foregoing document was mailed to Robert Boadway 

622394, St. Louis Correctional Facility, 8585 N. Croswell Road, St. Louis, MI 48880 and

the attorneys of record on this date, October 27, 2011, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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