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By Order entered this date Jeffrey Woods has been substituted as the proper respondent action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERENCE ALVIN JOHNSON,

Petitioner,

CASE NO. 2:09-CV-10395

v. CHIEF JUDGE GERALD E. ROSEN 

MAGISTRATE JUDGE PAUL J. KOMIVES

JEFFREY WOODS,

Respondent.1

 /

REPORT AND RECOMMENDATION ON PETITIONER’S HABEAS APPLICATIONS

(docket #1, #15) and MOTION FOR INVESTIGATIVE ASSISTANCE (docket #20)

I. RECOMMENDATION ................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner’s Conviction ............................... 5

C. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Self-Representation (Claim I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E. Other Acts Evidence (Claim II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

F. Prosecutorial Misconduct (Claim III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Improper Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Perjured Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. Suppression of Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

G. Newly Discovered Evidence (Claim IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

H. Ineffective Assistance of Appellate Counsel (Claim V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

I. Evidentiary Hearing, Discovery, and Investigative Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . 39

J. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

K. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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

habeas corpus and his motion for investigative assistance. If the Court accepts this recommendation,

the Court should also deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Terence Alvin Johnson is a state prisoner, currently confined at the

Chippewa Correctional Facility in Kincheloe, Michigan.

2. On March 10, 2006, petitioner was convicted of accosting a child under the age of

16 for immoral purposes, MICH. COMP. LAWS § 750.145a; and second degree criminal sexual

conduct (CSC II), MICH. COMP. LAWS § 750.520c(1)(a), following a jury trial in the Macomb

County Circuit Court. On April 13, 2006, he was sentenced to a term of 2-15 years’ imprisonment

on the CSC II conviction, and to a concurrent term of 2-4 years’ imprisonment on the accosting a

child conviction.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claims:

I. DEFENDANT’S CONVICTIONS SHOULD BE REVERSED AND THE

MATTER REMANDED FOR A NEW TRIAL WHERE THE TRIAL

JUDGE FAILED TO COMPLY WITH MCR 6.005 AND WITH THE

CONSTITUTIONAL REQUIREMENTS UNDER THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION IN

PERMITTING MR. JOHNSON TO WAIVE HIS RIGHT TO COUNSEL

AND TO REPRESENT HIMSELF AT TRIAL.

II. THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING THE

DEFENSE OBJECTION TO EVIDENCE THAT MR. JOHNSON

ALLEGEDLY SEXUALLY ABUSED HIS DAUGHTER AND SON IN

PRIOR INCIDENTS, UNDER MRE 404(B), AS THAT EVIDENCE WAS

NOT PROBATIVE OF ANY PROPER PURPOSE UNDER THE

STATUTE, AND/OR THE EVIDENCE WAS SIGNIFICANTLY MORE

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PREJUDICIAL THAN PROBATIVE.

III. DEFENDANT’S CONVICTION FOR ACCOSTING A CHILD UNDER

THE AGE OF 16 FOR IMMORAL PURPOSES SHOULD BE REVERSED

AS THE PROSECUTION FAILED TO PRESENT LEGALLY

SUFFICIENT EVIDENCE OF AN ACCOSTING SEPARATE FROM THE

ALLEGED CONDUCT THAT COMPRISED THE CRIMINAL SEXUAL

CONDUCT CHARGE.

The court of appeals agreed with petitioner that there was insufficient evidence to sustain his

accosting a minor conviction, and vacated that conviction and the related sentence. However, the

court rejected petitioner’s self-representation and other acts evidence claims. See People v. Johnson,

No. 270444, 2007 WL 3033950 (Mich. Ct. App. Oct. 18, 2007) (per curiam).

4. Petitioner, proceeding pro se, sought leave to appeal the two issues on which he did

not prevail 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. Johnson, 480 Mich.

1076, 744 N.W.2d 160 (2008).

5. On February 2, 2009, petitioner filed an application for the writ of habeas corpus in

this Court, raising as grounds for relief the two unsuccessful claims he had raised in the Michigan

Court of Appeals. On February 27, 2009, petitioner filed a motion to hold the case in abeyance so

that he could exhaust additional claims in the state courts. The Court granted the motion on March

9, 2009.

6. Petitioner thereafter filed a motion for relief from judgment in the trial court pursuant

to MICH. CT. R. 6.500-.508, raising claims of prosecutorial misconduct, ineffective assistance of

appellate counsel, and newly discovered evidence. The trial court denied the motion on July 19,

2009. See People v. Johnson, No. 2005-3139FH (Macomb County, Mich., Cir. Ct. July 19, 2009).

The Michigan Court of Appeals and Michigan Supreme Court subsequently denied petitioner’s

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application for leave to appeal in standard orders. See People v. Johnson, 488 Mich. 869, 788

N.W.2d 419 (2010); People v. Johnson, No. 294492 (Mich. Ct. App. Nov. 17, 2009).

7. On October 22, 2010, petitioner filed a motion to reopen his case, along with an

amended petition. The Court granted the motion to reopen and leave to amend on November 30,

2010. Petitioner asserts five grounds for relief in his amended petition:

I. DEFENDANT’S CONVICTIONS SHOULD BE REVERSED AND THE

MATTER REMANDED FOR NEW TRIAL WHERE THE TRIAL JUDGE

FAILED TO COMPLY WITH MCR 6.005 AND WITH THE

CONSTITUTIONAL REQUIREMENTS UNDER THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION IN

PERMITTING MR. JOHNSON TO WAIVE HIS RIGHT TO COUNSEL

AND TO REPRESENT HIMSELF AT TRIAL.

II. THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING THE

DEFENSE OBJECTION TO EVIDENCE THAT MR. JOHNSON

ALLEGEDLY SEXUALLY ABUSED HIS DAUGHTER AND SON IN

PRIOR INCIDENTS, UNDER MRE 404(B), AS THAT EVIDENCE WAS

NOT PROBATIVE OF ANY PROPER PURPOSE UNDER THE

STATUTE, AND/OR THE EVIDENCE WAS SIGNIFICANTLY MORE

PREJUDICIAL THAN PROBATIVE.

III. THE PROSECUTOR’S MANY ACTS OF MISCONDUCT DENIED

DEFENDANT DUE PROCESS, EQUAL PROTECTION OF LAW AND

THE RIGHT TO A FUNDAMENTALLY FAIR TRIAL.

IV. DEFENDANT HAS “NEWLY DISCOVERED EVIDENCE” THAT WAS

NOT AVAILABLE AT THE TIME OF HIS TRIAL AND WOULD MAKE

A DIFFERENCE UPON A RETRIAL.

V. MR. JOHNSON WAS DENIED HIS STATE AND FEDERAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL DUE TO

APPELLATE COUNSEL’S FAILURE TO RAISE ALL

CONSTITUTIONAL CLAIMS IN THE ORIGINAL BRIEF ON APPEAL.

8. Respondent filed his answer on May 27, 2011. He contends that petitioner’s

prosecutorial misconduct claim is barred by petitioner’s procedural default in the state courts, and

that petitioner’s remaining claims are without merit.

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9. Petitioner filed a lengthy reply to respondent’s answer on July 14, 2010. In his reply,

petitioner seeks discovery and an evidentiary hearing. Further, on January 12, 2011, petitioner filed

a motion for investigative assistance, in which he seeks appointment of an investigator.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s conviction arises from the sexual assault of his then 10-year-old son. The

Michigan Court of Appeals briefly summarized the facts leading to petitioner’s conviction:

In May 2005, several individuals observed defendant kiss and hug a young

boy inappropriately while the two were sitting at a picnic table in a public park. Two

of the witnesses observed defendant rubbing his groin area outside of his clothing

while kissing the boy; another observed defendant touching the boy’s groin area

outside of his clothing and telephoned 911 to report the incident. When the police

arrived, they determined that the boy was defendant’s ten-year-old son. The boy told

the officers that he and his father were praying and conducting Bible study at the

table and did not kiss at all.

Johnson, 2007 WL 3033950, at *1. The evidence adduced at trial was more fully summarized in

petitioner’s brief on direct appeal:

The initial prosecution witness was David Johnson. He indicated he was

presently living with his mother and her boyfriend. His older sister Vanessa lived

with them at times in 2005.

David stated that he loved his father very much, and missed him. He stated

that on the day in question, he and his father rode their bicycles to Rotary Park in

Roseville. He indicated they went to the park 2 to 4 times a week, as it was only a

few houses away from his house. Mr. Johnson had a Bible with him that day. David

testified that he and his father sat at a picnic table in the park, and did Bible study.

He did Bible studies with his father every day they were together. David stated that

his parents did not live together, and that he got to see his father around 20 hours per

week.

David testified that he sat on both the bench seat and on top of the picnic

table that day, and that the Bible study took around 25 minutes. He agreed that his

father had hugged him a couple of times during that study. He did not recall his

father kissing him. He stated he was playing on the swingset at the park when the

police arrived. The police officers spoke to Mr. Johnson, and then to David. After

the questioning, he returned home. He did not know where his father went. He was

reinterviewed at a facility named Care House the next day. David indicated he told

the people at Care House that his father had hugged him one time at the park, and

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that there had been no kissing.

David testified he recalled an incident in January, 2005, when he was in a car

with his father parked in the lot of a bowling alley and the police came to the car.

The police spoke to his father, and briefly spoke to him. He stated he and his father

were doing their Bible study in the car that day, and had been parked in the lot for

around 45 minutes before the police arrived. David indicated that his father was

wearing black dress pants that day, and he did not look to see if they were zipped or

unzipped. David acknowledged being interviewed at Care House the day after the

incident in the parking lot, and telling them that his father had just gone to the

bathroom and that was why his pants were undone. David denied that his head was

ever on his father’s lap that day.

David denied that his father had ever touched his private parts, or that he was

ever made to touch his father’s private parts. He also denied ever seeing Defendant

touching his own private parts. David denied telling the prosecutor prior to trial that

“probably something did happen,” or that his father might have done something to

him.

On cross-examination, David clarified where he was sitting at the picnic

table. He and his father took turns reading from the Bible during their studies. They

would go to a church in St. Clair Shores. David agreed that his father limited what

he could watch on television and what type of music he could listen to. David

reasserted that Defendant had never touched his private parts. He had not seen or

had any contact with his father since that day.

David testified he is four foot, four inches tall, and when sitting in his father’s

car he is able to see over the dashboard.

Lashawanda Goss testified that she was at Rotary Park with her parents, her

fiancée, and her three children on May 26. She stated that in the late afternoon, after

she had been at the park for 1 1⁄2 hours, she saw a man who she identified as Mr.

Johnson ride a bike into the park. She stated the man appeared to be carrying a

Bible, and sat down at a picnic table, where he was approached by a young boy. She

believed the boy was in the park already before the man arrived. According to Ms.

Goss, she was around 800 feet away, with a clear view of the table. She stated the

boy sat on the table, facing Defendant. Ms. Goss asserted that she could see the man

and the boy talking, and then she saw them hugging and kissing on the mouth. From

her viewpoint, she could see the child’s back and part of Defendant’s front. She

watched this activity for a short time, and then called 911. Ms. Goss stated she

believed Defendant’s hands were on his own genital area, rubbing himself. She

stated that she talked to the police twice over the phone, describing what she

believed she was seeing.

Ms. Goss stated that when the police arrived the man and the child went over

to the swingset in the park, looking as if they were preparing to leave the park. The

tapes of her two 911 calls were played for the jury. Ms. Goss acknowledged that she

could not see the child’s hands during the incident. She had never seen either

Defendant or the child previously. She was aware that there were other people in the

park that day, but did not know any of them.

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On cross-examination, Ms. Goss stated that from her angle she was able to

see the left half of Mr. Johnson’s face. She acknowledged that she did not see Mr.

Johnson’s genitals. She believed there were around 30 people in the park at the time.

She acknowledged that in her prior testimony she stated that Defendant’s Bible was

sitting in front of him on the table, while at trial she had stated that the Bible was

behind the child, out of Defendant’s view. She acknowledged that she did not see

Defendant touching the genital area of the child. She did not see either Defendant

or his son lying down on the picnic table at any time.

Karen Terlisner, Ms. Goss’s mother, testified she could identify Defendant

as the man she saw at the park. Mrs. Terlisner stated she saw Defendant

“inappropriately” hugging the child and kissing him. She saw the two people

talking, but denied that they ever opened or read from the book that the man had

carried into the park. She asserted she could see Defendant touching himself and

apparently masturbating through his clothing. Mrs. Terlisner stated that Defendant

and the boy were still at the table when the police cars first pulled into the park, and

only then went to the swingset. She believed she was around 100 feet from the

picnic table, with nothing blocking her view.

On cross-examination Mrs. Terlisner acknowledged that she did not see

Defendant touch his son’s genitals. She verified that she testified at the preliminary

examination that she did not see Defendant or his son lying down on top of the picnic

table.

Sheletha Jones testified she was at Rotary Park on May 26 with her children.

She stated she saw Defendant and his son at the park, sitting at the picnic table.

According to Ms. Jones, the boy laid down on the table for several minutes, and

Defendant was touching and kissing him. She asserted that she saw Mr. Johnson put

his hand on the area of his son’s penis. She stated that the kissing went on for

approximately 30 minutes. She believed that both Defendant and his son were sitting

at the table when the police cars arrived, and only then went to the area of the

swingset. Ms. Jones indicated she did not know Defendant or his son, and had never

seen them before at the park. She did speak to other people at the park after she

spoke to the police. She did not see Mr. Johnson touch himself during this incident.

On cross-examination Ms. Jones stated that the boy was sitting on the top of

the table when he was touched, rather than lying on the table. She later stated that

he was instead lying down when the touching allegedly occurred.

Vanessa Johnson, age 19, Defendant’s daughter, testified that in 1996, when

she was nine years old, she would engage in Bible studies with her father. Ms.

Johnson asserted that one day in 1996, she was lying on the couch in her house and

Defendant lay [sic] down behind her and reached around to rub her stomach under

her shirt. According to the witness, Mr. Johnson then moved his hand up and

touched her on her chest. She further testified that several years later, after her

parents separated, she moved in with her father. She stated that on one date,

Defendant started kissing her on her neck, arms, and upper thigh area, just above her

knees, and then touched her over her clothing on her vaginal area. She

acknowledged that this touch lasted only a few seconds, and that nothing else

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happened on that date. She asserted that a similar incident occurred in 2001, with

Defendant kissing her and touching her briefly on her genital area.

On cross-examination Ms. Johnson acknowledged there was a custody

dispute between Mr. Johnson and his ex-wife after they separated. She denied

discussing false allegations concerning her mother with Mr. Johnson. She identified

a Father’s Day card she sent Mr. Johnson commenting on his values and love for his

family. She stated that court proceedings over her allegations had been going on for

five years. She agreed that she had previously accused her mother of abusing her.

She agreed she had written to the Friend of the Court asking to live with Defendant

after her parents separated.

Roseville Police officer Jason Otto testified that he was on a regular patrol

at around 8:00 pm on January 15, 2005, and driving through the parking lot of the

Continental Lanes bowling alley when he noticed a car parked in the lot with its

motor running. The first time he passed the vehicle, he noticed an adult male sitting

in the driver’s seat, and the second time he drove by he saw a male youth in the front

passenger seat. When he circled around behind the car, he was no longer able to see

the child. He then shined his spotlight on the car, and went to the driver’s window

to investigate. According to the officer, as he walked up to the driver’s window he

could see the child leaning over the driver, with his head in the driver’s lap, and

could see that the driver’s pants were unzipped. He ordered the driver, who he

identified as Mr. Johnson, out of the vehicle, called for backup, and had Defendant

sit in his patrol car. He only spoke to Defendant briefly, prior to his supervisor

arriving at the scene. Defendant told him he was just sitting in the car with his son,

doing Bible study and praying.

On cross-examination, Officer Otto acknowledged there was no physical

evidence found to corroborate his alleged observations at the scene. He agreed that

he approached the car quickly, that Defendant and his son appeared surprised by his

presence, and that there was no time for Defendant and his son to make up a story

concerning their activities before Mr. Johnson was ordered out of the car.

Officer David Raymer responded to the scene to back up Officer Otto. He

watched over David while Mr. Johnson sat in the back of Officer Otto’s squad car.

He indicated to the officer that he was on a visitation with his father, and they had

come to the bowling alley. Officer Raymer also testified that he had responded to

the call at Rotary Park, and while there recognized Defendant and David Johnson

from the previous incident.

On cross-examination Officer Raymer admitted that any ten year old child

probably would have been nervous under the circumstances in the parking lot.

Lt. Raymond Blarek testified that he responded to the call from the parking

lot. He stated that he asked Officer Otto if he had actually seen David Johnson’s

mouth on Defendant’s penis, and was told no. When he asked Defendant what he

had been doing in the car, Defendant told him that he was homeless and living in the

car, and had custody of his son for three days each week. He denied any improper

contact with his son, stating that he had only hugged him while they were praying.

When the witness went up to the car, he stated its interior was in “total disarray,” as

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if someone was living in the vehicle. He questioned David Johnson. Lt. Blarek then

had an officer drive David to his mother’s house.

Lt. Blarek was also at the scene at Rotary Park in May. He watched as other

officers interviewed people at the scene.

On cross-examination Lt. Blarek acknowledged that he did not personally see

any evidence of wrongdoing at either the parking lot in January or at the park in

May. At the park, Defendant appeared calm and David was acting like a typical ten

year old. At the bowling alley parking lot, Defendant’s and his son’s statements

were consistent with each other.

Officer Eric Boucher testified that the picnic table was at most 104 feet away

from the area where Ms. Goss and the Terlisners were sitting.

Det. Brad McKenzie testified that he arrived at the park around two to three

minutes after the radio call went out, and saw Defendant and his son near the

swingset. He then spoke to the witnesses. On cross-examination the officer asserted

that witness Sheletha Jones told him she saw Defendant touching the boy’s penis,

and that this statement was reflected in his police report on the incident. According

to the officer, Ms. Jones told him this occurred for around 15 to 20 minutes.

Det. Clifford Van Der Linden testified that no charges were brought against

Mr. Johnson concerning the incident in the parking lot of the bowling alley. He

agreed that David Johnson consistently told the police that Defendant had not

inappropriately touched him on either occasion.

Officer Stephan Dzierzwski testified he responded to the call from Rotary

Park with Det. McKenzie. While at the park, he spoke briefly to Mr. Johnson and

David. He referred to David as appearing to him to be acting in a normal manner

and demeanor.

At this point of the trial, at the request of the defense, the jury was shown

tape recordings of the interviews with David Johnson at Care House in January and

June, 200[5].

After the prosecution rested, the defense presented testimony from two

witnesses. Robert Schumann, who worked at Care House, testified he was present

when David Johnson was interviewed in January, 2005. According to Mr.

Schumann, in his opinion David appeared to be having a hard time discussing the

incident and seemed to be hiding something. Mr. Schumann, who had a master’s

degree specializing in childhood sexual abuse, stated that David avoided eye contact

and was evasive when the topic of sexual abuse was brought up. He agreed there

was no physical evidence of any abuse.

Mr. Johnson then recalled Det. Van Der Linden to the stand. He indicated

that in his report he had indicated that he believed David was “very convincing”

during his Care House interview. On cross-examination, the witness stated that he

felt that David was protecting someone.

The case then proceeded to the closing arguments and jury instructions. The

jury convicted Mr. Johnson on both charged offenses.

Def.-Appellant’s Br. on Appeal, in People v. Johnson, No. 270444 (Mich. Ct. App.), at 5-14

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(citations to trial transcript omitted).

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]

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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

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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. Self-Representation (Claim I)

Petitioner first contends that he was denied his Sixth Amendment right to the assistance of

counsel by the trial court’s improper acceptance of his waiver of counsel. The Court should

conclude that petitioner is not entitled to habeas relief on this claim.

1. Clearly Established Law

The Sixth Amendment, applicable to the states through the Fourteenth Amendment Due

Process Clause, provides that a criminal defendant shall have the right to the assistance of counsel

in his defense. See U.S. CONST. amend. VI. This right necessarily implies its corollary, that a

defendant has a right to proceed without counsel and represent himself. See Martinez v. Court of

Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 154 (2000); Faretta v. California, 422 U.S.

806, 833-34 (1975). The right to assistance of counsel and the right to self-representation are thus

correlative rights; the assertion of one necessarily constitutes a waiver of the other. See United

States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970). Nevertheless, a defendant’s waiver of his right

to counsel and decision to proceed pro se must be knowing and intelligent. See Faretta, 422 U.S.

at 835; Carnley v. Cochran, 369 U.S. 506, 516 (1962). As the Supreme Court explained, in order

for the defendant’s decision to be knowing and voluntary, “he should be made aware of the dangers

and disadvantages of self-representation, so that the record will establish that ‘he knows what he is

doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United

States ex rel. McCann, 317 U.S. 269, 279 (1942)). However, the Supreme Court has “not prescribed

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any formula or script to be read to a defendant who states that he elects to proceed without counsel,”

Iowa v. Tovar, 541 U.S. 77, 88 (2004), and there is “no sacrosanct litany for warning defendants

against waiving the right to counsel.” United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005).

Rather, the adequacy of a defendant’s waiver is determined from the facts and circumstances of the

case. See Tovar, 541 U.S. at 88.

2. Analysis

Petitioner first requested to represent himself at trial at a motion hearing on November 14,

2005. Specifically, petitioner did not object to his appointed counsel, Cyril Pessina, representing

him for the motions, but requested that he be allowed to conduct the trial himself, with Mr. Pessina

serving as standby counsel. See Mot. Hr’g Tr., dated 11/14/05, at 4. The trial court indicated that

petitioner had the right to represent himself at trial, but warned him to familiarize himself with the

rules of evidence because he could not be allowed to turn the courtroom into a circus. See id. At

a hearing on November 22, counsel requested that petitioner be evaluated for his competence to be

tried. The trial court denied this motion. At this hearing, petitioner successfully argued on his own

behalf for various items of discovery to be turned over. See Mot. Hr’g Tr., dated 11/22/05, at 4-8.

Trial commenced with jury selection on January 11, 2006. At that time, petitioner again indicated

that he would be representing himself. See Trial Tr., Vol. I, at 6. The court asked petitioner, “[d]o

you know how foolish that is?” Petitioner responded, “I’ve heard.” Id. The court explained that

Mr. Pessina would be there only in an advisory capacity, but that petitioner would be “representing

[him]self in the totality of the case.” The court then stated, “[n]ow, I am telling you that that is a

mistake.” Id. at 7. The court further stated, “And I would hope that you would reconsider and allow

him to proceed with your defense, although, you can exercise your constitutional right to represent

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yourself.” Id. Petitioner again indicated his desire to represent himself, and the court informed him

that he would “be held to the strict standards of all of the Rules of Evidence.” Id. The parties then

discussed a possible plea offer, and began jury selection. Petitioner conducted the jury selection

himself, both questioning venire members and exercising challenges. The following day, petitioner

reconsidered his decision and requested that Mr. Pessina be allowed to represent him. Mr. Pessina

indicated that he had prepared only to assist petitioner, and therefore was not prepared to conduct

the trial. The court agreed to adjourn the trial to March 7, 2006, and a lengthy discussion ensued

between the parties as to whether the jury could be discharged without implicating double jeopardy

concerns, or whether the trial could simply be continued on that date before the same jury. The trial

court ultimately concluded that the jury should be retained and the trial continued. See Trial Tr.,

Vol. II.

Petitioner through counsel subsequently filed a motion for a mistrial, seeking to discharge

the jury and agreeing that the subsequent impaneling of a new jury would not raise any double

jeopardy problems. Petitioner argued that because he was now represented by counsel, he was

entitled to have the jury selected by counsel. The trial court initially indicated that it would grant

this motion. See Mot. Hr’g Tr., dated 1/30/06, at 1-5. Trial counsel then requested permission to

withdraw, stating that there had been a breakdown in communication. See id. at 7-8. Petitioner

responded by asking to again represent himself. See id. at 10-11. Because petitioner would again

be representing himself, the trial court denied the motion for mistrial. See id. at 13. The parties

again appeared for trial on March 7, 2006. At that time, the court asked petitioner whether he would

be representing himself or Mr. Pessina would be representing him. Petitioner responded that “I will

be representing myself, your Honor.” Trial Tr., Vol. III, at 3. The court then asked petitioner: “So

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you understand the drawbacks of representing yourself? Obviously, you’re not educated in the law,

there are going to be objects [sic] made, and I want you to understand that by representing yourself

you could be making a mistake because of your inability to be educated – or not your inability, but

your lack of education in the law. Do you understand that?” Id. Petitioner indicated that he

understood. See id. The court explained that Mr. Pessina would be available to answer petitioner’s

questions, “[b]ut you will be totally representing yourself, am I correct?” Id. at 4. Petitioner

responded, “Yes, ma’am.” Id. The court informed petitioner that Mr. Pessina was ready to proceed,

but petitioner indicated that “I think this is my place,” and stated that it was in his “best interest” to

represent himself. Id. Trial then proceeded, with petitioner representing himself at all stages,

including during cross-examination of the victim.

On appeal petitioner argued, as he does here, that the trial court failed to assure that his

waiver of counsel was knowing and voluntary, and failed to comply with the requirements for

accepting a waiver of counsel under Michigan Court Rule 6.005(D). The Michigan Court of

Appeals rejected these claims. With respect to petitioner’s claim that the trial court had failed to

adequately inform him of the dangers of self-representation, the court of appeals noted that: (1)

petitioner’s request to represent himself came several months before trial was actually held; (2) the

trial court informed petitioner that he would be required to abide by the rules of evidence; (3) on the

first day of jury selection the court informed petitioner that self representation would be “foolish”

and a mistake, and again cautioned petitioner that he would be held to the rules of evidence; (4)

when petitioner changed his mind and requested counsel after jury selection was completed, the

court told petitioner that this decision was “wise;” (5) at the January 30 hearing, when petitioner

again requested to represent himself, petitioner indicated that he understood the consequences of that

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choice; and (6) prior to the presentation of the case on March 7, the court again informed petitioner

of the “drawbacks” to self-representation based on his lack of legal training. Based on these factors,

the court of appeals concluded that “the trial court substantially complied with the requirement that

it inform defendant of the risks involved in self-representation.” Johnson, 2007 WL 3033950, at *2.

The court of appeals further held that the trial court had substantially complied with the

requirements of Rule 6.005(D). See id. at *2-*3. The court should conclude that these

determinations were reasonable.

First, petitioner’s assertion that the trial court failed to comply with state law in allowing him

to waive his right to counsel does not entitle him to habeas relief. In the first place, the Michigan

Court of Appeals concluded that the trial court did comply with Rule 6.005(D), and this

determination of state law is binding on this Court. See Sarausad v. Porter, 503 F.3d 822, 824 (9th

Cir. 2007) (“A determination of state law by a state appellate court is . . . binding in a federal habeas

action.”). And, even if the trial court did fail to comply with Rule 6.005(D), this would not provide

a basis for habeas relief. As noted above, there is no particular inquiry or litany of questions which

a trial court must perform as a matter of federal constitutional law, and any failure of the trial court

to comply with Rule 6.005(D) would raise solely an issue of state law for which habeas review is

not available. See Smith v. Smith, No. 05-CV-74045-DT, 2007 WL 1585653, at *6 (E.D. Mich. May

31, 2007) (Hood, J.); Howell v. Rubitschun, No. 04-CV-71975, 2005 WL 2319012, at *7 (E.D.

Mich. Sept. 20, 2005) (Steeh, J.). See generally, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(“Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”).

Turning to the constitutional issue, the Michigan Court of Appeals’s determination that

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petitioner’s waiver of counsel was knowing, voluntary, and intelligent was reasonable. As noted

above, there is no particular formula that a court must recite in accepting a defendant’s waiver of

counsel, see Tovar, 541 U.S. at 88, nor is a state court required to conduct any particular “searching

inquiry” into the basis of defendant’s waiver, see Payne, 207 F. Supp. 2d at 644. All that is required

is that a defendant be apprised of the dangers of proceeding without counsel. Here, the record shows

that petitioner was well aware of these dangers. The trial court repeatedly informed petitioner that

he would be required to abide by the rules of evidence, and warned petitioner that he was

unschooled in the law. The trial court also informed petitioner that deciding to proceed without

counsel would be “foolish” and a mistake. Further, petitioner had several months in which to

contemplate whether he wished to proceed with counsel or represent himself. In addition, although

not required to do so the trial court inquired before the start of each day of trial to ensure that

petitioner wished to continue representing himself. See Trial Tr., dated 3/9/06, at 4-5; id., dated

3/10/06, at 3. The trial transcript demonstrates that petitioner was well prepared to represent

himself, making an opening statement and closing argument and questioning the witnesses at trial.

In these circumstances, the Michigan Court of Appeals did not unreasonably apply clearly

established law in concluding that petitioner’s waiver of counsel was knowing, intelligent, and

voluntary. See, e.g., United States v. Mahasin, 442 F.3d 687, 691-92 (8th Cir. 2006); United States

v. McKenzie, 160 Fed. Appx. 821, 826-27 (11th Cir. 2005); United States v. McDowell, 814 F.2d

245, 247-49 (6th Cir. 1987); Payne, 207 F. Supp. 2d at 644. Accordingly, the Court should conclude

that petitioner is not entitled to habeas relief on this claim.

E. Other Acts Evidence (Claim II)

Petitioner next contends that he was denied a fair trial by the introduction of evidence that

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he had committed prior sexual assault on both his daughter and the victim. The Michigan Court of

Appeals rejected petitioner’s claim, concluding that the evidence of petitioner’s “past sexual abuse

of his son and daughter [was offered] for the proper purpose of proving [petitioner’s] common plan

or scheme used to choose his victims and carry out his assaults.” Johnson, 2007 WL 3033950, at

*4. The court of appeals also rejected petitioner’s argument that the prior acts were not sufficiently

similar to the charged act to be relevant. See id. The Court should conclude that petitioner is not

entitled to habeas relief on this claim.

It is well established that habeas corpus is not available to remedy a state court’s error in the

application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we

reemphasize that it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (a

federal court on habeas review “ha[s] no authority to review a state’s application of its own laws.”).

Thus, unless a violation of a state’s evidentiary rule results in the denial of fundamental fairness, and

issue concerning the admissibility of evidence does not rise to the level of a constitutional

magnitude. See Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); Davis v. Jabe, 824 F.2d 483,

487 (6th Cir. 1987). “[A] federal habeas court has nothing whatsoever to do with reviewing a state

court ruling on the admissibility of evidence under state law. State evidentiary law simply has no

effect on [a court’s] review of the constitutionality of a trial, unless it is asserted that the state law

itself violates the Constitution.” Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). As the

Sixth Circuit has noted, “[e]rrors by a state court in the admission of evidence are not cognizable

in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny

the defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir.

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1994). In short, “[o]nly when the evidentiary ruling impinges on a specific constitutional protection

or is so prejudicial that it amounts to a denial of due process may a court grant habeas corpus

remedy.” Barrett v. Acevado, 169 F.3d 1155, 1163 (8th Cir. 1999); see also, Coleman v. Mitchell,

244 F.3d 533, 542 (6th Cir. 2001). Where a specific constitutional right—such as the right to

confront witnesses or to present a defense—is not implicated, federal habeas relief is available only

if the allegedly erroneously admitted evidence “is totally unreliable and . . . the factfinder and the

adversary system will not be competent to uncover, recognize, and take due account of its

shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899 (1983).

As noted above, the issue here is not whether this evidence was properly admitted under the

Michigan Rules of Evidence, but rather whether petitioner was denied a fair trial by the introduction

of this evidence. Both the Supreme Court and the Sixth Circuit have repeatedly held that a

defendant is not denied a fair trial by the admission of prior bad acts evidence which is relevant in

the defendant’s trial. See Estelle, 502 U.S. at 69-70; Dowling v. United States, 493 U.S. 342, 353-54

(1990); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); Coleman v. Mitchell, 268 F.3d 417,

439-40 (6th Cir. 2001). Here, the evidence of petitioner’s prior assaults was relevant for the proper

purpose of showing petitioner’s common scheme in carrying out his assaults. Further, the trial court

properly instructed the jury that this evidence could be considered only for this purpose, and that the

jury should not use the evidence to convict petitioner because he was a bad person or was guilty of

another, uncharged crime. See Trial Tr., dated 3/10/06, at 41-42. Because this evidence was relevant

for a proper purpose and the jury was properly instructed, and because “[t]here is no clearly

established Supreme Court precedent which holds that a state violates due process by permitting

propensity evidence in the form of other bad acts evidence,” Bugh, 329 F.3d at 512, the Court should

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conclude that petitioner is not entitled to habeas relief on this claim.

F. Prosecutorial Misconduct (Claim III)

Petitioner next contends that he was denied a fair trial by prosecutorial misconduct. From

a thorough review of petitioner’s lengthy reply brief, it appears that petitioner’s prosecutorial

misconduct claims fall into three categories: (1) improper statements during closing argument; (2)

presentation of perjured testimony; and (3) suppression of exculpatory evidence. The Court should

conclude that petitioner is not entitled to habeas relief on these claims.

1. Improper Statements

Petitioner first contends that the prosecutor committed misconduct by vouching for the

credibility of the witnesses. The Court should reject this claim.

a. Clearly Established Law

For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough

that the prosecutor’s conduct was “undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation

omitted). “[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability

of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the

prosecutor’s conduct was so egregious as to warrant habeas relief, a court should consider “the

degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the

accused; whether they are isolated or extensive; whether they were deliberately or accidentally

placed before the jury; and the strength of the competent proof to establish the guilt of the accused.”

Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotations and citations omitted).

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Some cases referring to only the first type of comment as “vouching” and describe the second

type of comment as “bolstering.” See Francis, 170 F.3d at 551.

3

Because petitioner’s reply is not sequentially paginated, and uses a system of both numbers and

letters, to avoid confusion I refer to the pagination provided by the Court’s docketing system.

21

In sum, to constitute a denial of due process the prosecutor’s conduct must be “so pronounced and

persistent that it permeates the entire atmosphere of the trial.” Id. (internal quotation omitted).

Improper vouching occurs either (1) “when a prosecutor supports the credibility of a witness

by indicating a personal belief in the witness’s credibility thereby placing the prestige of the

[prosecutor’s office] behind that witness,” or (2) through “comments that imply that the prosecutor

has special knowledge of facts not in front of the jury.” United States v. Francis, 170 F.3d 546, 550

(6th Cir. 1999); see also, United States v. Emuegbunam, 268 F.3d 377, 404 (6th Cir. 2001).2

b. Analysis

Petitioner contends that the prosecutor improperly vouched for the credibility of the

witnesses during closing and rebuttal argument. See Reply (part I), docket #26, at 6, 20, 22.3

 

During closing argument, the prosecutor stated:

Lashawanda, Karen, Robert, and Sheletha, all took the stand in front of you

and testified to something that happened over a year ago and they testified to things

that stood out in their mind. They did it honestly. They did it without prompting and

they had no reason, other than the protection of the child to come in and tell you

what they told you. They didn’t know this man. They could care less about this

man, one way or the other. They have no vendetta against this man right here, other

than the fact that they were appalled at what they saw at the park that day.

Trial Tr., dated 3/10/06, at 7. Later, during rebuttal argument, the prosecutor stated, “Ladies and

gentlemen, the witnesses testified clearly, without any motivation, without any malice, for no other

reason than protection of that child.” Id. at 33.

These comments do not constitute impermissible vouching. Although the prosecutor stated

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that the witnesses testified honestly, at no time did she suggest that she personally believed the

witnesses or that she had knowledge of facts not before the jury. Rather, in context it is clear that

the prosecutor was arguing that the witnesses were worthy of belief because their testimony was

clear and consistent, and because they had no animosity toward petitioner or motive to lie. “[W]here

a prosecutor argues that a witness is being truthful based on the testimony given at trial, and does

not assure the jury that the credibility of the witness is based on his own personal knowledge, the

prosecutor is engaging in proper argument and is not vouching.” United States v. Walker, 155 F.3d

180, 187 (3d Cir. 1998). Further, the prosecutor was free to comment that the jury should use its

common sense in evaluating the credibility of the witnesses. See Walker, 155 F.3d at 187; see also,

Nichols v. Scott, 69 F.3d 1255, 1283 (5th Cir. 1995) (comment “is permissible to the extent that it

draws a conclusion based solely on the evidence presented.”) (internal quotation omitted); United

States v. Grey Bear, 883 F.2d 1382, 1392 (8th Cir. 1989); Martin v. Foltz, 773 F.2d 711, 717 (6th

Cir. 1985) (prosecutor may argue permissible inferences from the evidence); United States ex rel.

Williams v. Washington, 913 F. Supp. 1156, 1163 (N.D. Ill. 1995) (prosecutor’s assertion during

closing argument that the defendant had “lied” did not deprive petitioner of a fair trial where “the

prosecution’s statements were reasonable inferences drawn from the physical evidence and witness

testimony[.]”).

Petitioner also contends that the prosecutor misstated the facts when she stated, regarding

the testimony of the witnesses: “The common factor that all four of them said, there was no Bible

reading going on that day. That Bible was not open, there was no Bible reading, this was a pretext

– or appeared to be a pretext used and I believe the evidence shows that.” Trial Tr., dated 3/10/06,

at 9. Petitioner is correct that, in part, this statement was inaccurate. Both Karen Terlisner and

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Lashawanda Goss testified that petitioner did not open or read from the Bible that he had with him.

See Trial Tr., dated 3/8/06, at 20, 79-80. Neither Robert Terlisner nor Sheletha Jones so testified,

contrary to the prosecutor’s statement. However, neither did either of these witnesses testify that

petitioner had in fact read from the Bible; they simply provided no testimony as to this fact one way

or the other. Based on the fact that two of the four witnesses in fact testified as the prosecutor

claimed, and the other two did not testify to the contrary, the prosecutor’s “misstatement has

earmarks of inadvertent mistake, not misconduct.” United States v. Carillo, 16 F.3d 1046, 1050 (9th

Cir. 1994). Further, the jury was properly instructed that it was the sole judge of the facts, and that

the arguments of counsel were not evidence, limiting the prejudicial impact of the prosecutor’s

statements. See id. at 1051. Finally, the misstatement was a brief mention, the Bible issue did not

play any further part in the prosecutor’s closing argument or in defendant’s argument, and whether

the Bible had been opened or not was only tangentially related to whether the witness’s observations

of petitioner’s conduct was credible. Thus, petitioner cannot show that he was denied a fair trial by

the prosecutor’s misstatement.

2. Perjured Testimony

Petitioner next contends that the prosecution presented perjured testimony. The Court should

conclude that petitioner is not entitled to habeas relief on this claim.

a. Clearly Established Law

It is well established 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); accord Napue v. Illinois, 360 U.S. 264, 271 (1959). This is true whether

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the false testimony goes to the defendant’s guilt or to a witness’s credibility, see Napue, 360 U.S.

at 270, and it matters not whether the prosecution directly elicits the false testimony or merely

allows false testimony to go uncorrected, see id. at 269. It is equally well established, however, that

petitioner bears the burden of proving that the testimony amounted to perjury. As the Fourth Circuit

has explained, “[a] defendant seeking to vacate a conviction based on perjured testimony must show

that the testimony was, indeed, perjured. Mere inconsistencies in testimony by government

witnesses do not establish the government’s knowing use of false testimony.” United States v.

Griley, 814 F.2d 967, 971 (4th Cir. 1987); accord United States v. Verser, 916 F.2d 1268, 1271 (7th

Cir. 1990) (“[N]ot every testimonial inconsistency that goes uncorrected by the government

establishes a constitutional violation.”); Horton v. United States, 983 F. Supp. 650, 657 (E.D. Va.

1997); United States v. Hearst, 424 F. Supp. 307, 318 (N.D. Cal. 1976). Thus, to succeed on this

claim petitioner must show that: (1) the prosecutor presented evidence which was false; (2) the

prosecutor knew of the falsity; and (3) the evidence was material. See Coe v. Bell, 161 F.3d 320,

343 (6th Cir. 1999). As the Verser court further explained, to establish a constitutional violation

petitioner must show that the “inconsistent testimony amounted to perjury, ‘the willful assertion

under oath of a false, material fact.’” Verser, 916 F.2d at 1271 (quoting Carey v. Duckworth, 738

F.2d 875, 878 (7th Cir. 1984)); see also, Horton, 983 F. Supp. at 657 (quoting United States v.

Smith, 62 F.3d 641, 646 (4th Cir. 1995)) (in order to establish Napue violation defendant must show

that the government knowingly used perjured testimony, perjury being “false testimony concerning

a material matter, ‘given with the willful intent to deceive (rather than as a result of, say, confusion,

mistake, or faulty memory.’”). In other words, petitioner must show that the testimony was

“indisputably false.” Byrd v. Collins, 209 F.3d 486, 817-18 (6th Cir. 2000).

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b. Analysis

Petitioner contends that the witnesses testified falsely because their testimony at trial

contradicted testimony they gave at the preliminary examination regarding whether he was reading

from the Bible while at the park with his son. Petitioner also contends that Sheletha Jones’s

testimony was false, because she alone testified to having seen petitioner rub his son’s penis.

Finally, petitioner contends that Sheletha Jones’s testimony was false because she was testifying

under an assumed name, her real last name being Poole. Because petitioner cannot show that any

of the testimony was indisputably false, he is not entitled to habeas relief on this claim.

Petitioner essentially contends that the witnesses testified falsely at trial because some of

their testimony contradicted their testimony at the preliminary examination, or because it

contradicted other witnesses, in particular with respect to whether he was reading his Bible at the

table in the park. See Reply (part II), docket #26-1, at 10. As noted above, only Goss and Karen

Terlisner testified at trial that petitioner did not open the Bible while in the park. At the preliminary

examination, Goss initially testified that petitioner did not open the Bible and that she did not

observe him reading from it. See Prelim. Exam. Tr., at 14. On cross-examination, Goss testified

that petitioner in fact opened the Bible, but she could not tell if he read from it and did observe that

the victim never looked at the Bible. See id. at 26. Thus, although Goss was not clear on whether

the Bible was opened, petitioner cannot show that her trial testimony was “indisputably false” and

thus amounted to perjury, and the prior inconsistent testimony was presented to the jury for its use

in evaluating the credibility of Goss. With respect to Karen Terlisner, she testified at the preliminary

examination, consistent with her trial testimony, that petitioner took the Bible out but never read

from it. See id. at 45. Thus, petitioner cannot show that her testimony was false.

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Petitioner also contends that Sheletha Jones testified falsely because she testified under an

assumed name, her real last name being Poole. See Reply (part I), docket # 26, at 46-50. Petitioner

argues that the only explanation for Jones’s use of an alias was to shield herself from civil and

criminal liability, and that the jury would have found her not credible, and thus acquitted him, if it

knew that Jones was testifying under a false name. See Reply (part II), docket #26-1, at 5-6. This

claim is without merit, because the jury was informed of Jones’s real last name. See Trial Tr., dated

3/9/06, at 10. Further, petitioner’s contention that the only reason for Jones to use an “alias” was

to avoid civil or criminal liability is without merit. Petitioner does not explain what potential civil

or criminal liability Jones might have been facing that she hoped to avoid by using a different last

name, and Jones herself explained why she used “Jones” instead of “Poole”–namely, because that

was the last name of her boyfriend, who was the father of her children, and thus the name used by

her children. See id. at 10. Thus, petitioner has failed to show that allowing Jones to testify under

that name deprived him of a fair trial or constituted perjured testimony.

Petitioner next contends that Officer Otto testified falsely, regarding the January 2005

incident, that he observed the victim’s head on petitioner’s lap. Petitioner contends that the falsity

of this testimony was demonstrated by Lt. Blarek’s testimony. See Reply (part I), docket #26, at 26-

29. This claim is likewise without merit. Lt. Blarek testified that after the January 2005 incident,

he asked Officer Otto what the latter had seen. After Officer Otto described what he had seen, Lt.

Blarek asked him directly whether he had observed the victim’s mouth on petitioner’s penis, and

Officer Otto responded that he had not. See Trial Tr., dated 3/7/06, at 123. This testimony, however

did not contradict Officer Otto’s testimony. Officer Otto testified that as he approached the car, he

observed the victim’s head buried in the petitioner’s groin, and when the victim lifted his head

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petitioner’s zipper was opened. See id. at 97. However, at no point did Officer Otto testify that he

saw the victim’s mouth on petitioner’s penis, and there is nothing contradictory in Officer Otto

having observed the victim’s head in petitioner’s groin area but not actually seeing whether or not

the victim’s mouth touched petitioner’s penis. Thus, petitioner has failed to offer anything to show

that Officer Otto’s testimony was “indisputably false.”

Finally, petitioner contends that Detective Van Der Linden testified falsely when he testified

that he believed, based on the victim’s interview at Care House, that the victim was protecting

someone. Petitioner argues that if Detective Van Der Linden had really believed this, he would have

arrested petitioner or someone else whom the detective thought the victim was protecting. See

Reply (part I), docket #26, at 35-36; Reply (part IV), docket #26-3, at 4. Petitioner cannot show that

Detective Van Der Linden’s testimony was false, however, because Van Der Linden testified to his

opinions, not facts. The subject first came up on petitioner’s cross-examination of Detective Van

Der Linden, when petitioner asked whether the group involved in the Care House interview in

January came to any conclusions regarding the veracity of the victim, who had denied any abuse.

Detective Van Der Linden stated, “we thought he was being sexually assaulted.” Trial Tr., dated

3/8/06, at 236. On redirect examination, Detective Van Der Linden further testified that they

thought the victim was being truthful as to what the victim thought had happened, but that they

thought the victim was protecting someone. He further explained that charges were not brought

because of a lack of evidence, not because he did not believe that petitioner had sexually assaulted

the victim. See id. at 237-38. Thus, Detective Van Der Linden did not testify as to any facts, only

as to his own impressions and opinions, a line of inquiry begun by petitioner himself. Petitioner

cannot show that this testimony amounted to perjury, because impressions and opinions, by their

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very nature, cannot be “indisputably false.”

In short, petitioner has failed to show that the prosecutor presented any testimony at trial

which she knew to be “indisputably false.” Petitioner is therefore not entitled to habeas relief on this

claim.

3. Suppression of Exculpatory Evidence

Petitioner also appears to argue that the prosecution deprived him of a fair trial by

suppressing exculpatory evidence. The Court should conclude that petitioner is not entitled to

habeas relief on this claim.

a. 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 accused, 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

elements. See Carter, 218 F.3d at 601. Further, although Brady requires disclosure of exculpatory

evidence, it is well established, that “Brady . . . does not require the government to create

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exculpatory material that does not exist.” United States v. Sukumolachan, 610 F.2d 685, 687 (9th

Cir. 1980); see also, Richards v. Solem, 693 F.2d 760,766 (8th Cir. 1982) (“Although the state has

a duty to disclose evidence, it does not have a duty to create evidence.”).

b. Analysis

For the most part, petitioner makes only vague, generalized assertions that he was not

provided with discovery materials or that the prosecution suppressed evidence. These conclusory

assertions do not entitle petitioner to habeas relief. To the extent petitioner makes a generalized

claim that evidence was suppressed, it is well established that “[c]onclusory allegations that the

government ‘suppressed’ or ‘concealed’ evidence do not entitle [petitioner] to relief; nor do they

suffice to entitle [petitioner] to an evidentiary hearing on whether documents were withheld.”

Harris v. United States, 9 F. Supp. 2d 246, 275 (S.D.N.Y. 1998), aff’d, 216 F.3d 1072 (2d Cir.

2000); see also, United States v. Winkelman, 548 F. Supp. 2d 142, 153 (M.D. Pa. 2008). Likewise,

to the extent petitioner bases his claim on the prosecutor’s failure to provide discovery required by

state law or court order, the claim is not a basis for habeas relief. As noted above, petitioner had no

constitutional right to discovery, see Weatherford, 429 U.S. at 559, and he therefore cannot establish

his entitlement to habeas relief merely by demonstrating that the prosecution failed to provide

discovery information in violation of a court order. Any violation of the state law discovery rules

raises an issue not cognizable on habeas review. See Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir.

2002); Burns v. Lafler, 328 F. Supp. 2d 711, 723 (E.D. Mich. 2004) (Gadola, J.); Meade v. Lavigne,

265 F. Supp. 2d 849, 867 (E.D. Mich. 2003) (Tarnow, J.). Rather, petitioner must show that he was

deprived of material, exculpatory information by the prosecution’s omission. Petitioner has failed

to make this showing.

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Petitioner identifies only two specific items of evidence that he contends were withheld.

First, he contends that the prosecution withheld Sheletha Jones’s real last name. However, as

discussed above, this information came out at trial. Because the purpose of Brady is to permit a

defendant to put all exculpatory information before the jury, “Brady generally does not apply to

delayed disclosure of exculpatory information, but only to a complete failure to disclose.” United

States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (internal quotation omitted). Even where

“previously undisclosed evidence is disclosed . . . during trial, no Brady violation occurs unless the

defendant has been prejudiced by the delay in disclosure.” Norris v. Schotten, 146 F.3d 314, 334

(6th Cir. 1998) (internal quotation omitted); accord Davis, 306 F.3d at 421 (“Delay violates Brady

only where the delay causes prejudice.”); United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir.

1994). Here, petitioner has not shown how he was prejudiced by the delayed disclosure of Jones’s

real last name. He does not identify any further lines of inquiry or impeachment that knowledge of

Jones’s true last name would have provided, nor has he explained how prior knowledge of her true

last name would have revealed any exculpatory information. Thus, petitioner is not entitled to

habeas relief on this claim.

Petitioner also contends that the prosecution suppressed one or more witness statements,

because at a pretrial hearing the officer in charge held up five or six witness statements, but he had

received only four. See Reply (part II), docket #26-1, at 6-7, 22. The record, however, does not

provide any basis to believe that there were more than four witness statements. It was petitioner

himself who indicated that the officer in charge held up what appeared to be five sheets of paper and

said there were five or six statements. See Mot. Hr’g Tr., dated 11/22/05, at 5-6. Upon questioning

by the court, however, Detective Van Der Linden indicated that there were only four witness

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statements, consistent with the number of witnesses who testified at trial. See id. at 6-7. Apart from

petitioner’s own assertions regarding the number of pages the officer held up, there is absolutely

nothing in the record that shows there were additional witness statements, much less that any such

statements contained exculpatory evidence. Thus, petitioner is not entitled to habeas relief on this

claim.

G. Newly Discovered Evidence (Claim IV)

Petitioner next contends that he is entitled to habeas relief because he has newly discovered

evidence that establishes his innocence. The Court should conclude that petitioner is not entitled

to habeas relief on this claim, for two reasons.

First, petitioner’s claim does not set forth a cognizable basis for habeas relief. A writ of

habeas corpus may be granted “only on the ground that [the petitioner] is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, the existence

of new evidence, standing alone, is not a basis for granting the writ. As the Supreme Court has

explained: “Claims of actual innocence based on newly discovered evidence have never been held

to state a ground for federal habeas relief absent an independent constitutional violation occurring

in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); see also,

id. at 404 (claim of actual innocence is “not itself a constitutional claim, but instead a gateway

through which a habeas petitioner must pass to have his otherwise [procedurally] barred

constitutional claim considered on the merits.”) (emphasis added); Schlup v. Delo, 513 U.S. 298,

314-16 (distinguishing, in part, Herrera because in this case the petitioner “accompanie[d] his claim

of innocence with an assertion of constitutional error at trial.”); Townsend v. Sain, 372 U.S. 293, 317

(1963) (“Of course, such evidence must bear upon the constitutionality of the applicant’s detention;

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the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a

ground for relief on federal habeas corpus.”), overruled in part on other grounds, Keeney v. TamayoReyes, 504 U.S. 1 (1992). Thus, the newly discovered evidence, standing alone, provides no basis

for habeas relief.

Further, even if such a claim were cognizable, petitioner’s evidence falls far short of that

necessary to establish that he is innocent. In Herrera, without elaborating further, the Court noted

that even if a free-standing claim of innocence were cognizable on habeas review, “the threshold

showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S.

at 417. In Schlup, the Court elaborated on the showing required to establish “actual innocence” for

purposes of overcoming a procedural bar to consideration of a constitutional claim. The Court

explained that, to establish actual innocence, the petitioner must “show that a constitutional violation

has probably resulted in the conviction of one who is actually innocent. To establish the requisite

probability, the petitioner must show that it is more likely than not that no reasonable juror would

have convicted him in light of the new evidence.” Schulup, 513 U.S. at 327 (internal citation and

quotation omitted).

The Supreme Court has also explained that a petitioner cannot establish his actual innocence

merely be rehashing his innocence claims raised in the state courts and relying on the evidence

adduced at trial. If he could, federal habeas review would become nothing more than a second

trial on the merits, something the Supreme Court has repeatedly admonished the federal courts to

avoid. See Milton v. Wainwright, 407 U.S. 371, 377 (1972) (“The writ of habeas corpus has

limited scope; the federal courts do not sit to re-try state cases de novo[.]”). Thus, “to be credible,

[a claim of actual innocence] requires petitioner to support his allegations of constitutional error

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with new reliable evidence that was not presented at trial.” Schlup, 513 U.S. at 324. “Examples

of evidence which may establish factual innocence include credible declarations of guilt by

another, trustworthy eyewitness accounts, and exculpatory scientific evidence.” Pitts v. Norris,

85 F.3d 348, 350-51 (8th Cir. 1996) (citations omitted); accord Schlup, 513 U.S. at 324 (referring

to “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence”).

Here, petitioner’s actual innocence claim is not based on any new, reliable evidence. Rather,

it is based on petitioner’s newly constructed analysis of the testimony at the preliminary examination

and trial. Petitioner’s reply brief makes this plain, explaining that his newly discovered evidence

consists of the preliminary examination and trial transcripts, see Reply (part III), docket #26-2, at

10, and indeed petitioner’s entire actual innocence argument reads as if it is a newly constructed

closing argument based on the evidence adduced at trial. See id. at 17-28. As noted above, an actual

innocence claim requires new evidence, not merely petitioner’s new analysis of the evidence that

the jury considered. Thus, even if such a claim were cognizable, petitioner has failed to present any

new evidence showing that he is actually innocent.

To the extent petitioner is really attempting to argue that the evidence was insufficient to

sustain his conviction for CSC-II, in addition to being unexhausted the claim is without merit. The

Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which

he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). Reviewing courts must view the

evidence, draw inferences and resolve conflicting inferences from the record in favor of the

prosecution. See Neal v. Morris, 972 F.2d 675, 678 (6th Cir. 1992). In determining the sufficiency

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of the evidence, the court must give circumstantial evidence the same weight as direct evidence.

See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). While a challenge to the sufficiency

of the evidence on an established element of an offense raises a federal constitutional claim

cognizable in a habeas corpus proceeding, see Jackson, 443 U.S. at 324, “[t]he applicability of the

reasonable doubt standard . . . has always been dependent on how a State defines the offense that

is charged in any given case.” Patterson v. New York, 432 U.S. 197, 211 n.12 (1977); see also,

Jackson, 443 U.S. at 324 n.16; Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Thus, “[a] federal

court must look to state law to determine the elements of the crime.” Quartararo v. Hanslmaier,

186 F.3d 91, 97 (2d Cir. 1999).

As relevant to petitioner’s case, the CSC-II statute provides: “[a] person is guilty of criminal

sexual conduct in the second degree if the person engages in sexual contact with another person and

. . . [t]hat other person is under 13 years of age.” MICH. COMP. LAWS § 750.520c(1)(a). Under the

CSC-II statute, “sexual contact” is defined as “the intentional touching of the victim’s or actor’s

intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s

or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the

purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for: (i)

Revenge. (ii) To inflict humiliation. (iii) Out of anger.” MICH.COMP.LAWS § 750.520a(q). Here,

the prosecution presented sufficient evidence to establish these elements. There was no question

that the victim was under 13 years of age at the time of the offence. Further, the testimony of

Sheletha Jones, if believed by the jury, established that petitioner touched the clothing covering the

victim’s penis. And the testimony of other witnesses that petitioner kissed the victim in a sexual

manner and was rubbing his own penis through his clothes establish that the sexual contact was done

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for the purpose of sexual arousal or in a sexual manner.

Petitioner contends that there was no evidence of his guilt because the victim testified that

he was not sexually assaulted, there was no physical evidence to support the charge, and Sheletha

Jones’s testimony was not credible. These factors do not render insufficient the testimony which

otherwise established the elements of the offense. It is well-established that a reviewing court,

whether on direct appeal or habeas review, “do[es] not make credibility determinations in evaluating

the sufficiency of the evidence.” United States v. Owusu, 199 F.3d 329, 344 (6th Cir. 2000); Walker

v. Russell, 57 F.2d 472, 475-76 (6th Cir. 1995); see also, United States v. Bailey, 444 U.S. 394, 414-

15 (1980) (“It is for [jurors] and not for appellate courts to say that a particular witness spoke the

truth or fabricated a cock-and-bull story.”). “The fact that the testimony is contradictory does not

mean that evidence is insufficient, only that the jury must make credibility determinations.”

Government of the Virgin Islands v. Isaac, 50 F.3d 1175, 1179 (3d Cir. 1995). It is the job of the

jury, not this Court sitting on habeas review, to resolve conflicts in the evidence, and this Court

must presume that the jury resolved those conflicts in favor of the prosecution. See Jackson, 443

U.S. at 326; United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). Thus, petitioner’s

attacks on the credibility of Jones do not demonstrate that the evidence was insufficient. Likewise,

the evidence is not rendered insufficient because there was no physical evidence tying petitioner to

the crime. “Lack of physical evidence does not render the evidence that is presented insufficient.”

United States v. Magallanez, 408 F.3d 672, 681 (10th Cir.2005); see also, O’Hara v. Brigano, 499

F. 3d 492, 500 (6th Cir. 2007) (victim’s testimony alone sufficient even though not corroborated by

other witnesses or physical evidence); United States v. Bieghler, 198 Fed. Appx. 566, 568 (8th Cir.

2006) (“‘[F]orensic evidence’ is not required for conviction.”).

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Finally, the fact that the victim testified that no crime occurred does not render the evidence

constitutionally insufficient. As with any other witness, the jury is free to accept or reject all or part

of a victim’s testimony. Here the eyewitnesses, if believed by the jury, provided sufficient evidence

to prove petitioner’s guilt beyond a reasonable doubt. “As the exclusive judge of the credibility of

the witnesses, the jury was free to reject the victim’s attempt to protect [his] abuser.” Baltrip v.

State, No. 09-93-256, 1994 WL 590169, at *1 (Tex. Ct. App. Oct. 26, 1994); see also, United States

v. Persing, 436 Fed. Appx. 13, 18 (2d Cir. 2011). Accordingly, the Court should conclude that

petitioner is not entitled to habeas relief on the basis of newly discovered evidence.

H. Ineffective Assistance of Appellate Counsel (Claim V)

Finally, petitioner contends that his appellate counsel was constitutionally ineffective for

failing to raise his prosecutorial misconduct and newly discovered evidence claims in the Michigan

Court of Appeals. The Court should conclude that petitioner is not entitled to habeas relief on this

claim.

1. Clearly Established Law

The Sixth Amendment right to counsel and the 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 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. 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

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ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.” Id. With respect to the performance prong of the Strickland test, a strong presumption

exists that counsel’s behavior lies within the wide range of reasonable professional assistance. See

id. at 689; see also 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. It is petitioner’s burden to establish the

elements of his ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818,

833 (6th Cir. 1995) (petitioner bears the burden of establishing counsel’s ineffectiveness); Lewis v.

Alexander, 11 F.3d 1349, 1352 (6th Cir. 1993) (same).

As the Supreme Court has recently explained, Strickland establishes a high burden that is

difficult to meet, made more so when the deference required by § 2254(d)(1) is applied to review

a state court’s application of Strickland:

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ----, ----, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An

ineffective-assistance claim can function as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial, and so the Strickland standard must

be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the

integrity of the very adversary process the right to counsel is meant to serve.

Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the

standard for judging counsel’s representation is a most deferential one. Unlike a later

reviewing court, the attorney observed the relevant proceedings, knew of materials

outside the record, and interacted with the client, with opposing counsel, and with

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the judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone,

535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell,

506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether

an attorney’s representation amounted to incompetence under “prevailing

professional norms,” not whether it deviated from best practices or most common

custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and §

2254(d) are both “highly deferential,” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy,

521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two

apply in tandem, review is “doubly” so, Knowles, 556 U.S., at ----, 129 S.Ct. at 1420.

The Strickland standard is a general one, so the range of reasonable applications is

substantial. 556 U.S., at ----, 129 S.Ct. at 1420 . Federal habeas courts must guard

against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.

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

In evaluating the performance of appellate counsel, it is well established that “appellate

counsel . . . need not (and should not) raise every nonfrivolous claim, but rather may select from

among them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S.

259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Although it is “possible to bring

a Strickland claim based on counsel’s failure to raise a particular claim, . . . it is difficult to

demonstrate that counsel was incompetent.” Id. As a general rule, it is “‘only when ignored issues

are clearly stronger than those presented [that] the presumption of effective assistance of counsel

[can] be overcome.’” Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). Further, in

the appellate counsel context, to demonstrate prejudice petitioner must show a reasonable

probability that his claims would have succeeded on appeal. See id. at 285-86; Benning v. Warden,

345 Fed. Appx. 149, 155-56 (6th Cir. 2009); McCleese v. United States, 75 F.3d 1174, 1180 (7th

Cir. 1996).

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2. Analysis

Petitioner cannot show that counsel was ineffective for failing to raise his prosecutorial

misconduct and newly discovered evidence claims on appeal, or that he was prejudiced by counsel’s

failure to do so. Counsel presented three substantial issues on direct appeal, one of which was

successful and resulted in the reversal of one of petitioner’s two convictions. Further, as explained

above, petitioner’s prosecutorial misconduct and newly discovered evidence claims are without

merit. Thus, petitioner cannot show that he was denied the effective assistance of appellate counsel.

I. Evidentiary Hearing, Discovery, and Investigative Assistance

In his reply brief, petitioner seeks an evidentiary hearing and discovery. Further, in a

separately filed motion, petitioner seeks investigative assistance, presumably to uncover evidence

of his innocence. The Court should conclude that petitioner is not entitled to an evidentiary hearing,

discovery, or investigative assistance.

“A habeas petitioner, unlike the usual civil litigant, is not entitled to discovery as a matter

of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, a petitioner is entitled

to discovery only if the district judge “in the exercise of his discretion and for good cause shown

grants leave” to conduct discovery. Rule 6, Rules Governing Section 2254 Cases in the United

States District Courts, 28 U.S.C. foll. § 2254. In order to establish “good cause” for discovery,

petitioner must establish that the requested discovery will develop facts which will enable him to

demonstrate that he is entitled to habeas relief. See Bracy, 520 U.S. at 908-09. The burden is on

the petitioner to establish the materiality of the requested discovery. See Stanford v. Parker, 266

F.3d 442, 460 (6th Cir. 2001).

In addressing whether an evidentiary hearing is appropriate in a habeas corpus case, a court

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must consider two separate issues: (1) is an evidentiary hearing necessary under Rule 8 of the Rules

Governing Section 2254 Proceedings in United States District Courts, 28 U.S.C. foll. § 2254; and

(2) is a hearing is permitted under 28 U.S.C. § 2254(e)(2). In deciding whether an evidentiary

hearing is necessary under Rule 8, “courts focus on whether a new evidentiary hearing would be

meaningful, in that a new hearing would have the potential to advance the petitioner’s claim.”

Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000) (discussing Cardwell v. Greene, 152 F.3d

331, 338 (4th Cir. 1998)); see also, Alcorn v. Smith, 781 F.2d 58, 59-60 (6th Cir. 1986) (applying

pre-AEDPA law); cf. Townsend v. Sain, 372 U.S. 293, 312-13 (1963). As the Supreme Court

recently explained:

In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.

Because the deferential standards prescribed by § 2254 control whether to grant

habeas relief, a federal court must take into account those standards in deciding

whether an evidentiary hearing is appropriate.

It follows that if the record refutes the applicant’s factual allegations or

otherwise precludes habeas relief, a district court is not required to hold an

evidentiary hearing.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citations and footnote omitted).

Here, petitioner cannot establish good cause for discovery or that an evidentiary hearing

would have the potential to advance his claims. For the most part, petitioner seeks discovery and

a hearing to advance his claim that he is actually innocent. As noted above, however, this is not a

cognizable basis for habeas relief, and thus neither discovery nor an evidentiary hearing is

appropriate. The bulk of petitioner’s remaining claims may be resolved on the basis of the record.

Petitioner’s jury waiver and other acts evidence claims, as well as his claim challenging the

prosecutor’s comments at trial, depend solely on the record at trial. Likewise, the resolution of

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petitioner’s ineffective assistance of appellate counsel claim is governed by the claims raised by

counsel and the merit of the claims petitioner contends counsel should have raised, a resolution that

cannot be advanced through further factual development. Although theoretically additional evidence

could support a claim that the prosecutor presented perjured testimony or suppressed evidence,

petitioner’s perjury and suppression claims here are based solely on inconsistencies in the trial

testimony, and petitioner does not point specifically to any additional evidence that discovery or an

evidentiary hearing could uncover in support of these claims. Speculative allegations are

insufficient to entitle a petitioner to an evidentiary hearing. See Getsy v. Mitchell, 495 F.3d 295, 312

(6th Cir. 2007); Young v. Herring, 938 F.2d 543, 560 & n.12 (5th Cir. 1991). Petitioner’s “‘bald

assertions and conclusory allegations do not provide sufficient ground to warrant requiring . . . an

evidentiary hearing.’” Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (quoting Stanford

v. Parker, 266 F.3d 442, 460 (6th Cir. 2001)). Accordingly, the Court should deny petitioner’s

motion for investigative assistance and his requests for discovery and an evidentiary hearing.

J. 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

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

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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

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

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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 recommendation regarding the merits of petitioner’s claims, the

Court should also conclude that petitioner is not entitled to an evidentiary hearing. With respect to

petitioner’s jury waiver claim, the record shows that the trial court repeatedly warned petitioner of

the dangers of self-representation, and advised petitioner to proceed with counsel. Thus, the

resolution of this claim is not reasonably debatable. With respect to petitioner’s other acts and

newly discovered evidence claims, it is well established that such claims do not present a cognizable

basis for habeas review, and thus the resolution of these claims is not reasonably debatable. With

respect to petitioner’s prosecutorial misconduct claims, the trial record establishes that the

prosecutor’s comments were either proper or not prejudicial, and petitioner has failed to point to

anything that suggests that the prosecutor knowingly presented perjured testimony or suppressed

evidence. Thus, the resolution of petitioner’s prosecutorial misconduct claims is not reasonably

debatable. Finally, because appellate counsel presented substantial, non-frivolous issues on appeal,

including an issue that resulted in the reversal of one of petitioner’s convictions, and because

petitioner’s prosecutorial misconduct and newly discovered evidence claims are without merit, the

resolution of petitioner’s ineffective assistance of appellate counsel claim is not reasonably

debatable. Accordingly, the Court should deny petitioner a certificate of appealability.

K. 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

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unreasonable application of, clearly established federal law. Accordingly, the Court should deny

petitioner’s application for the writ of habeas corpus. The Court should also deny petitioner’s

motion for investigative assistance. Finally, if the Court accepts this recommendation, the Court

should 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

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Dated: 12/14/11

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 December 14, 2011.

s/Eddrey Butts 

Case Manager

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