UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

JAMES LEO DAVIS, 

 

Petitioner, Case Number 1:09-CV-10748 

 Honorable Thomas L. Ludington 

v. 

BARRY D. DAVIS, WARDEN, 

Respondent. 

________________________________________/ 

OPINION AND ORDER DENYING PETITION 

FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE 

OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS 

 Petitioner James Leo Davis, confined at the Newberry Correctional Facility in Luce 

County, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 

2254, challenging his convictions of carjacking, Mich. Comp. Laws § 750.529a, felonious 

assault, Mich. Comp. Laws § 750.82, assault with intent to do great bodily harm, Mich. Comp. 

Laws § 750.84, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession 

of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was 

found guilty of these crimes following a bench trial in the Wayne Circuit Court and was 

sentenced to prison for an effective term of twenty-two to thirty-six-and-a-half years. The 

petition raises six claims: (1) Petitioner did not voluntarily waive his right to trial by jury; (2) 

Petitioner was denied his right to a ruling on the voluntariness of his statement to police; (3) the 

identification of Petitioner at trial by prosecution witnesses was the result of a suggestive 

identification procedure; (4) the trial court did not find Petitioner guilty beyond a reasonable 

doubt; (5) Petitioner's carjacking conviction must be set aside where the trial court found 

sufficient evidence as to the affirmative defense that he acted under duress; and (6) Petitioner 

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was deprived of his Sixth Amendment right to the effective assistance of counsel. Petitioner’s 

first four claims are without merit. His fifth and sixth claims are barred from review by his state 

court procedural default. Accordingly, the petition will be denied. 

I 

 This relevant facts relied upon by the Michigan Court of Appeals, which are presumed 

correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1), are as follows: 

At approximately 4:00 or 5:00 p.m. on April 6, 2003, Adrian Hanceri was 

driving his car when he saw defendant outside of a parked car talking to 

somebody in the car. When the driver of the blue car suddenly accelerated and 

began driving away, defendant shot a gun three times at the back of the car and 

pursued on foot. Defendant then looked toward Hanceri and shot at him, hitting 

him in the arm. Defendant then continued running after the driver of the blue car 

and shot at the blue car several more times. 

Defendant made his way to a gas station, where he saw an occupied car. 

Hazel DeLong was outside the car to pump the gas while David Holesh and their 

eleven-month-old daughter were in the car. Defendant approached the car and 

told Holesh to get out. As Holesh was climbing out of the car, defendant shot into 

the car three or four times, hitting Holesh once on his left side. DeLong quickly 

retrieved her baby from the car while defendant got into the car. Once the baby 

was out of the car, defendant drove away. 

Later that day, when defendant allegedly entered a house while pointing a 

gun at a child’s head, and [sic] the occupants of the house beat defendant into 

submission and called the police. While defendant was in the hospital recovering 

from his wounds, a police officer interviewed defendant. Defendant told the 

officer that he and his friend Darren were driving around smoking marijuana in 

defendant’s rental car when Darren dropped defendant off in a gang 

neighborhood. Defendant stated that after Darren drove away with the car, some 

men started shooting their guns at defendant. When defendant approached the 

man and asked for help, the two began fighting over control of the man’s gun and 

one or two shots went off. Defendant got into the car and drove away after the 

woman retrieved her baby from the back of the car. After making his statement, 

defendant refused to sign the written statement. 

At the preliminary examination, defendant was identified by Hanceri and 

Holesh. Defendant filed a motion to suppress the identifications, arguing that the 

identifications were unduly suggestive because he was wearing a prison jumpsuit 

at the time. Defendant also filed a motion for a Walker hearing, arguing that his 

statements to police were not voluntarily given. At the Walker hearing, defendant 

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testified that he never made a statement to police. The trial court determined that 

because defendant denied actually making the statement, it was not required to 

decide the voluntariness of defendant’s statement to police. The trial court denied 

defendant’s motion to suppress his statement to police and defendant’s motion to 

suppress identification. 

At the bench trial, the trial court found defendant guilty of felonious 

assault for the shooting of Hanceri, assault with intent to do great bodily harm less 

than murder for the shooting of Holesh, carjacking for the taking of Holesh’s car, 

felon in possession of a firearm, and felony-firearm. 

People v. Davis, No. 252145, 2005 WL 544241,2005 Mich. App. LEXIS 609, *2-4 (Mich. Ct. 

App. Mar. 8, 2005). 

 The court sentenced Petitioner to concurrent terms of twenty-two to thirty-four-and-a-half 

years for the carjacking conviction, one to four years for the felonious assault conviction, one to 

ten years for the assault with intent to commit great bodily harm conviction, and one to five years 

for the felon in possession of a firearm conviction. The court also sentenced Petitioner to a 

consecutive two-year term for the felony-firearm conviction. 

 Petitioner appealed, raising five claims. First, he asserted that he is entitled to a new trial 

as a result of the trial judge reading the transcript of the preliminary examination. Second, he 

asserted that the trial court’s ruling following the Walker hearing was erroneous. Third, he 

asserted that the identification of the petitioner by witnesses violated his constitutional rights 

requiring reversal and a dismissal of the charges. Fourth, he asserted that trial counsel did not 

provide effective assistance. And fifth, he asserted that the trial court employed a quantum of 

proof less than beyond a reasonable doubt. In an unpublished opinion, the Michigan Court of 

Appeals affirmed . Id. 

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 Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising 

the same claims. By standard form order, the application for leave to appeal was denied. People 

v. Davis, 474 Mich. 973 (2005) (unpublished table decision). 

 Petitioner returned to the trial court and filed a motion for relief from judgment. The 

motion raised four claims. First, Petitioner asserted, he is entitled to relief from judgment on his 

carjacking conviction because the trial court misapplied the law regarding the duress defense 

Second, Petitioner asserted, he was denied effective assistance of trial counsel. Third, Petitioner 

asserted, he was denied his right to the effective assistance of counsel on appeal. And fourth, 

Petitioner asserted, the trial court abused its discretion under Mich. Comp. Laws § 770.1 because 

it appears that justice has not been done. 

 On April 3, 2007, the trial court denied the motion. The court explained that “pursuant 

to Michigan Court Rule 6.508(D)(3)(b), defendant has failed to establish good cause and actual 

prejudice that supports his claim.” Petitioner filed an application for leave to appeal in the 

Michigan Court of Appeals. The application was denied “for failure to establish entitlement to 

relief under Michigan Court Rule 6.508(D).” People v. Davis, No. 284279 (Mich. Ct. App. May 

23, 2008). Petitioner applied for leave to appeal to the Michigan Supreme Court; it also denied 

relief under Rule 6.508(D). People v. Davis, 482 Mich. 1063 (2008) (unpublished table 

decision). 

II 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which governs 

this case, permits a federal court to issue the writ only if the state court decision on a federal 

issue “was contrary to, or involved an unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court,” or it amounted to “an unreasonable determination of 

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the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 

2254(d)(1)–(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state 

court does not justify issuance of the writ; rather, the state court’s application of federal law 

“must have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21(2003) 

(quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, 

this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 

2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person 

in custody pursuant to the judgment of a State court, a determination of a factual issue made by a 

State court shall be presumed to be correct.”); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 

1996) (“The court gives complete deference to state court findings of historical fact unless they 

are clearly erroneous.”). 

To be “contrary to” clearly established precedent, the Supreme Court explains, the state 

court decision must have “court applie[d] a rule that contradicts the governing law set forth in 

our cases. . . . A state-court decision will also be contrary to this Court’s clearly established 

precedent if the state court confronts a set of facts that are materially indistinguishable from a 

decision of this Court and nevertheless arrives at a result different from [the Court’s] precedent.” 

Williams, 529 U.S. at 405-06. 

A state court decision involves an “unreasonable application” of clearly established 

precedent, the Court explains, “if the state court identifies the correct governing legal principle 

from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 

case.” Id. at 413. The Court cautions, however, that an unreasonable application of federal law 

is different from an incorrect application of federal law. Unanimously emphasizing the limited 

nature of this review in Harrington v. Richter, 131 S. Ct. 770 (2011), the Court reiterated that 

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AEDPA imposes a highly deferential standard for evaluating state-court rulings, writing: “A 

state court’s determination that a [petitioner’s] claim lacks merit precludes habeas relief so long 

as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 

785–86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, habeas review 

is “limited to the record that was before the state court.” Cullen v. Pinholster, 131 S. Ct. 1388, 

1398 (2011). 

III 

A

Petitioner first asserts that he did not voluntarily waive his right to a jury trial because the 

trial court failed to inform Petitioner that it had read the transcript from the preliminary 

examination. 

 The right to a trial by jury is a fundamental right, a cornerstone of the American system 

of criminal justice. See Duncan v. Louisiana, 391 U.S. 145, 154 (1968). It is a right that may be 

waived, however, if such waiver is knowing, voluntary, and intelligent. Patton v. United States, 

281 U.S. 276, 312–13 (1930). In Lott v. Coyle, 261 F.3d 594 (6th Cir.2001), the Sixth Circuit set 

forth the level of knowledge a defendant must have to validly waive a right to a jury trial: 

A waiver may be voluntary, knowing, and intelligent if the defendant has a 

minimum amount of knowledge concerning his jury trial right and the mental 

capacity to understand the implications of the waiver of that right. Although a 

defendant need not have a detailed, technical knowledge of this right, “[a] 

defendant is [deemed] sufficiently informed to make an intelligent waiver if he 

was aware that a jury is composed of 12 members of the community, [that] he 

may participate in the selection of the jurors, [that] the verdict of the jury must be 

unanimous, and that a judge alone will decide guilt or innocence should he waive 

his jury trial right.” We did not, however, adopt a mandatory rule requiring trial 

courts to interrogate defendants prior to accepting a jury trial waiver, but instead, 

offered a "suggestion" that district courts personally inform defendants of the 

“benefits and burdens of jury trials on the record prior to accepting a proffered 

waiver.” 

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Id. at 615 (internal citations omitted) (quoting United States v. Martin, 704 F.2d 267, 273 (6th 

Cir. 1983)). 

 On the first morning of Petitioner’s trial, prior to selecting a jury, the trial court heard and 

denied Petitioner’s motion challenging the in-court identification that occurred at the preliminary 

examination. The Court also heard and denied Petitioner’s motion to suppress his statement to 

police. By the time these matters were concluded, insufficient time remained to select a jury that 

day. Accordingly, the jury venire was brought into the courtroom, placed under oath, and then 

excused for the day. Defense counsel then informed the court that Petitioner would waive his 

right to a jury trial. The trial court then conducted the following colloquy: 

The Court: All right Mr. Davis, you understand that you have the right to have 

a jury trial? I mean, in fact, they were here earlier today. You 

understand that right? 

Petitioner: Yes, Your Honor. 

The Court: By having a waiver trial, you give up the right to have that jury and 

we do what we call a bench or waiver trial. Do you understand 

that? 

Petitioner: Yes, Your Honor. 

The Court: Anybody forcing you to do that? 

Petitioner: No, Your Honor. 

The Court: Okay. Are you giving up your right to a jury trial freely and 

voluntarily? 

Petitioner: Yes, Your Honor. 

The Court: Okay. And let me get you a Waiver of Trial by Jury form. And 

you’ve done this after discussing it with counsel, and you believe 

that it’s in your best interests to proceed with bench as opposed to 

jury, correct? 

Petitioner: Yes, Your Honor. 

 This record demonstrates that Petitioner had an adequate understanding of his jury trial 

right and the capacity to understand the implications of the waiver of that right. He had 

personally witnessed the jury venire be sworn-in and instructed to report the following morning 

for the selection hearing. He acknowledged that he decided to waive his right to a jury trial on 

the advice of counsel and was doing so freely, voluntarily, and intelligently. 

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Moreover, Petitioner does not claim that he did not understand his right to a jury trial. 

Rather, he claims that he was not informed that the trial court had reviewed the preliminary 

examination transcript. However, there is no federal or state requirement for a trial court to 

inform Petitioner that he reviewed the preliminary examination transcript before accepting a 

waiver. The case relied on by Petitioner, People v. Ramsey, 385 Mich. 221 (1971), simply stands 

for the common-sense proposition that a trial court cannot use evidence presented only at the 

preliminary examination to support its findings after conducting a bench trial. Petitioner’s claim 

for habeas relief on this ground will be denied. 

B 

 Petitioner next asserts that he was denied his right to a ruling from the trial court on his 

motion to suppress his statement to police. 

 At the suppression hearing, prosecution witnesses testified about the circumstances of 

obtaining Petitioner’s statement at the hospital. Petitioner told an officer that his car had been 

stolen and that when he approached a car at a gas station for help, a man pointed a gun at him. 

After a struggle, he was able to drive away in the man’s car and was then attacked again at a 

house. Petitioner, on the other hand, testified that he did not make any statement. The trial court 

ruled that it was not required to rule on the voluntariness of the statement because Petitioner 

denied making one. Defense counsel agreed, essentially abandoning the suppression motion. 

 On direct appeal, Petitioner asserted that he was entitled to a ruling on the suppression 

motion despite the fact he denied making the statement and that his counsel was ineffective for 

acquiescing in the erroneous ruling. The Michigan Court of Appeals agreed, finding that under 

Boles v. Stevenson, 379 U.S. 43 (1964) and Lee v. Mississippi, 332 U.S. 742 (1948), Petitioner 

was entitled to argue that he did not make the statement and that, even if he did, it was 

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involuntary. The state appellate court further found that Petitioner’s trial counsel performed 

deficiently for abandoning the motion. The court nevertheless concluded that the error was 

harmless, explaining: 

[D]efendant has not shown that he was prejudiced by defense counsel’s error. 

The evidence of defendant’s guilt independent of his statement was 

overwhelming. Three eyewitnesses directly implicated defendant in the criminal 

activity. Defendant did not present any evidence contradicting this testimony 

other than his statement to police, where he denied committing the shootings. 

Thus, the use of defendant’s statement at trial did not adversely prejudice him in 

that it did not affect the outcome of the proceedings. 

Davis, 2005 Mich. App. LEXIS 609, at *12. The court elaborated: 

If anything, the statement helped defendant, as the trial court accepted portions of 

defendant's statement and consequently found defendant guilty of lesser offenses 

(e.g., the trial court believed the portion of defendant’s statement that defendant 

shot Holesh because he believed that Holesh was reaching for a gun. Because of 

this finding, the trial court convicted defendant of assault with intent to do great 

bodily harm less than murder rather than assault with intent to commit murder). 

Id. at *12 n.4. 

 In Fry v. Pliler, 551 U.S. 112 (2007), the Supreme Court held that “in § 2254 

proceedings a court must assess the prejudicial impact of constitutional error in a state-court 

criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht v. 

Abrahamson, 507 U.S. 619, 631 (1993), whether or not the state appellate court recognized the 

error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard 

set forth in Chapman v. California, 386 U.S. 18 (1967).” 551 U.S. at 121-22 (citations omitted). 

Under Brecht, “an error is harmless unless it ‘had substantial and injurious effect or influence in 

determining the jury’s verdict.’” Fry, 511 U.S. at 116 (quoting Brecht, 507 U.S. at 631). 

 Here, the error in considering Petitioner’s statement to police did not have a substantial 

and injurious effect in determining the trial court’s verdict. The statement was not a confession. 

Although it placed Petitioner at the scene of the crime, it attempted to provide an exculpatory 

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version of events. Moreover, the evidence presented at trial overwhelmingly demonstrated that 

Petitioner was the perpetrator of the crimes. All three victims of the first incident identified him. 

Likewise, the second incident concluded when his attempt to gain entry into a house at gunpoint 

was thwarted by the occupants, who subdued him until the police arrived and arrested him. 

Petitioner is not entitled to habeas relief with respect to this claim. 

C 

 Petitioner’s third claim asserts that the trial court erred in allowing two of the victims to 

identify him at trial because they were subjected to a improperly suggestive identification 

procedure during the preliminary examination. 

 The Due Process Clause protects the accused against the introduction of evidence that 

results from an unreliable identification obtained through unnecessarily suggestive procedures. 

Moore v. Illinois, 434 U.S. 220, 227 (1977). A conviction based on identification testimony that 

follows a pretrial identification procedure violates the defendant’s constitutional right to due 

process “if the . . . procedure was so impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 

(1968). It is the likelihood of misidentification that violates a defendant’s due process right. 

Neil v. Biggers, 409 U.S. 188, 198 (1972). 

 The Supreme Court has identified five factors to consider in determining the reliability of 

identification evidence: (1) the witness’s opportunity to view the criminal at the time of the 

crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the 

witness’s prior description of the defendant; (4) the witness’s level of certainty when identifying 

the suspect at the confrontation; and (5) the length of time that has elapsed between the time and 

the confrontation. Id. at 199–200. A criminal defendant has the initial burden of proving that the 

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identification procedure was impermissibly suggestive. If a defendant meets his burden, the 

burden then shifts to the prosecutor to prove that the identification was reliable independent of 

the suggestive identification procedure. See United States v. Wade, 388 U.S. 218, 240 n.31 

(1967); Johnson v. Warren, 344 F. Supp. 2d 1081, 1090 (E.D. Mich. 2004). If a defendant fails 

to show that the identification procedures were impermissibly suggestive, or if the totality of the 

circumstances indicates that the identification is otherwise reliable, no due process violation has 

occurred. Provided that there is not a substantial likelihood of misidentification, it is for the jury 

to determine the ultimate weight to be given to the identification. See United States v. Hill, 967 

F.2d 226, 230 (6th Cir. 1992); Johnson, 344 F. Supp. 2d at 1090. 

 On direct appeal, the Michigan Court of Appeals rejected Petitioner’s argument, 

explaining in pertinent part: 

[D]efendant was not identified at a live or photographic lineup, but was 

identified by Hanceri and Holesh at the preliminary examination. Because 

defendant was wearing a prison jumpsuit in the courtroom and was sitting with 

defense counsel, we conclude that the trial court erred in determining that the 

preliminary examination identifications were not unduly suggestive. 

 However, despite the suggestiveness of the preliminary examination 

identifications, the evidence at trial sufficiently demonstrated independent bases 

for the identifications. Hanceri testified that he was driving slowly and was close 

to the perpetrator when the perpetrator turned his head toward him and looked at 

him. Holesh saw the perpetrator as the perpetrator approached his car and the 

perpetrator talked to Holesh from a short distance. After the perpetrator shot 

Holesh, Holesh saw the perpetrator get into his car and sit there while DeLong 

retrieved the baby from the car. Holesh testified that the encounter lasted about 

five minutes and that he got a good look at the perpetrator. Holesh testified that 

he had no doubt that defendant was the perpetrator. 

 Both Hanceri and Holesh identified defendant at the preliminary 

examination, which was seventeen days after they witnessed defendant commit 

the crimes. This is “a relatively short span of time, that does not reduce the 

reliability” of the identification. Both witnesses again positively identified 

defendant at trial. Neither witness ever misidentified defendant at any time, and 

neither had doubts about defendant’s identity. Under the totality of the 

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circumstances, we conclude that there is substantial reliable testimony that 

constitutes an independent basis for identifying defendant. 

Davis, 2005 Mich. App. LEXIS 609, at *15-17 (internal citations, footnotes, and quotation marks 

omitted) (quoting People v Colon, 233 Mich. App. 295, 305; 591 N.W.2d 692 (1998)). 

 This determination does not contravene or unreasonably apply federal law. Even if the 

identification at the preliminary examination constituted an unduly suggestive identification 

procedure, the Michigan Court of Appeals reasonably weighed the Biggers factors in favor of the 

reliability of the identification. 

 First, Holesh had an excellent opportunity to observe Petitioner. Holesh saw Petitioner as 

he approached him at the gas pump. The two engaged in a conversation from a short distance 

before the struggle began. Hanceri similarly testified that he was driving slowly as he passed 

and saw Petitioner look at him. Moreover, both witnesses’ testimony indicates that they were 

paying a great deal of attention to Petitioner. Holesh, as the victim of a violent encounter, had 

good reason to focus on his would-be assailant. See, e.g., United States v. Crozier, 259 F.3d 503, 

511 (6th Cir. 2001). Likewise, Hanceri’s attention was drawn to Petitioner when he saw 

Petitioner shoot towards a car. Third, the witnesses did not inaccurately describe Petitioner. 

Fourth, both victims stated that they were sure of their identification. Finally, a relatively short 

length of time, seventeen days, elapsed between the time of the crime and the confrontation. In 

sum, the relevant factors reasonably support the state court’s determination. Petitioner is not 

entitled to habeas relief on this ground. 

D 

 Petitioner’s fourth claim asserts that the trial court failed to use the beyond-a-reasonabledoubt standard when it found him guilty of assault with intent to cause great bodily harm. 

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 “The Due Process Clause 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). In a jury trial, this right is protected when 

the trial court instructs the jury that it may not find the defendant guilty unless it determines that 

the prosecution has proven all the elements of the offense beyond a reasonable doubt. Victor v. 

Nebraska, 511 U.S. 1 (1994). A trial court conducting a bench trial, however, need not make 

explicit the standard it is following because it is presumed to follow the law in reaching a verdict. 

See Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. 

Arizona, 536 U.S. 584 (2002). Petitioner has failed to cite to any authority indicating that there 

is a constitutional right to have a trial court specifically state that it is employing the beyond-areasonable-doubt standard when it makes its findings after a bench trial. See Middlebrooks v. 

Conway, No. 05-CV-0004, 2009 U.S. Dist. LEXIS 27636, at *9–11 (W.D.N.Y. Mar. 30, 2009). 

 Petitioner is correct that trial court observed that it thought it was “more likely” that 

Petitioner brought the gun to the scene of the shooting at the gas station. But as correctly noted 

by the state appellate court, bringing the gun to the scene of the shooting was not one of the 

required elements of the crime. This isolated statement does not show that the trial court 

employed a lower standard of proof than required. Petitioner is not entitled to habeas relief on 

this ground. 

E 

 Petitioner’s remaining two claims were presented in his motion for relief from judgment 

and the appeal that followed it. Respondent argues that these claims are barred from review 

because Petitioner procedurally defaulted them in the state courts. 

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 A procedural default is “a critical failure to comply with state procedural law.” Trest v. 

Cain, 522 U.S. 87, 89 (1997). Such a default may occur if the state prisoner fails to present an 

issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 

(6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have 

done something at trial to preserve his claimed error for appellate review, such as making a 

contemporaneous objection or filing a motion for a directed verdict. See Simpson v. Sparkman, 

94 F.3d 199, 202–03 (6th Cir. 1996). Procedural default will bar consideration of the merits of a 

federal claim if the state rule is actually enforced and is an adequate and independent ground for 

the state court’s decision. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Monzo v. Edwards, 

281 F.3d 568, 575–76 (6th Cir. 2002). 

 Here, the Michigan Court of Appeals and the Michigan Supreme Court, the last state 

courts rendering judgment on these claims, both denied relief, in standard form orders, on the 

grounds that the petitioner had failed to demonstrate entitlement to relief under Michigan Court 

Rule 6.508(D). The Sixth Circuit holds that the Court must “look through” the form orders used 

by the Michigan appellate courts as they are ambiguous as to whether they refer to a procedural 

default or the denial of right on the merits. Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 

2010). In this case, the trial court specifically relied on Michigan Court Rule 6.508(D)(3) in 

denying relief when it found that Petitioner had not demonstrated good cause or prejudice. 

Under these circumstances, Petitioner’s post-conviction claim is procedurally defaulted. See 

Ivory v. Jackson, 509 F. 3d 284, 292–93 (6th Cir. 2007); see also Howard v. Bouchard, 405 F. 3d 

459, 477 (6th Cir. 2005). 

 When the state courts clearly and expressly rely on a valid state procedural bar, federal 

habeas review is also barred unless the petitioner can demonstrate “cause” for the default and 

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actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure 

to consider the claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 

750–51. If a petitioner fails to show cause for his procedural default, it is unnecessary for the 

court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). In extraordinary 

cases, those alleging actual innocence, a federal court may consider the constitutional claims 

presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 

477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of innocence requires a 

petitioner support the allegations of constitutional error with new, reliable evidence that was not 

presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual innocence, which 

would permit collateral review of a procedurally defaulted claim, requires factual innocence, not 

mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). 

 The only candidate for a “cause” argument in this case would be an allegation that 

Petitioner’s appellate counsel was ineffective for failing to raise these two claims during his 

appeal of right. It is well-established, however, that a criminal defendant does not have a 

constitutional right to have appellate counsel raise every non-frivolous issue on appeal. See 

Jones v. Barnes, 463 U.S. 745, 754 (1983). The United States Supreme Court explains: 

For judges to second-guess reasonable professional judgments and impose on 

appointed counsel a duty to raise every “colorable” claim suggested by a client 

would disserve the . . . goal of vigorous and effective advocacy . . . . Nothing in 

the Constitution or our interpretation of that document requires such a standard. 

Id. Moreover, “[A] brief that raises every colorable issue runs the risk of burying good 

arguments — those that, in the words of the great advocate John W. Davis, ‘go for the jugular,’ 

— in a verbal mound made up of strong and weak contentions.” Id. at 753 (internal citations 

omitted). Strategic and tactical choices regarding which issues to pursue on appeal are “properly 

left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th 

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Cir. 1990). Appellate counsel may deliver deficient performance and prejudice a defendant by 

omitting a “dead-bang winner,” an issue obvious from the trial record which would have resulted 

in a reversal on appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003) 

(internal citations omitted). 

 Petitioner has failed to show that appellate counsel’s performance fell outside the wide 

range of professionally competent assistance by omitting the claims presented in his postconviction motion for relief from judgment. Appellate counsel filed a substantial brief which 

raised several claims on direct appeal. In fact, these claims form Petitioner’s leading claims in 

his motion before this Court. Petitioner has not shown that appellate counsel’s strategy in 

presenting such claims and not raising other claims was deficient or unreasonable so as to 

amount to cause that would excuse any default. See Grant v. Rivers, 920 F. Supp. 769, 782 (E.D. 

Mich. 1996). Because Petitioner has failed to show cause, the Court need not address the issue 

of prejudice. See Smith, 477 U.S. at 533. 

 Additionally, Petitioner has failed to demonstrate that a fundamental miscarriage of 

justice would result from a failure to review his defaulted claims. He raises no claims of actual 

innocence. 

IV 

 Before Petitioner may appeal this Court’s decision, a certificate of appealability 

must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). 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). When a court rejects a habeas claim on the merits, the substantial 

showing threshold is met if the petitioner demonstrates that reasonable jurists would find the 

district court’s assessment of the constitutional claim debatable or wrong. See Slack v. 

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McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating 

that . . . jurists could conclude the issues presented are adequate to deserve encouragement to 

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a 

district court may not conduct a full merits review, but must limit its examination to a threshold 

inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. Likewise, when a 

district court denies a habeas petition on procedural grounds without reaching the prisoner’s 

underlying constitutional claims, a certificate of appealability should issue, and an appeal of the 

district court’s order may be taken, if the petitioner shows that jurists of reason would find it 

debatable whether the petitioner states a valid claim of the denial of a constitutional right, and 

that jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling. Slack, 529 U.S. at 484. When a plain procedural bar is present and the district 

court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either 

that the district court erred in dismissing the petition or that the petition should be allowed to 

proceed further. In such a circumstance, no appeal would be warranted. Id. “The district court 

must issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 

In this case, Petitioner has not made a substantial showing of the denial of a constitutional 

right. Accordingly, a certificate of appealability is not warranted in this case. Petitioner will 

also not be granted leave to proceed in forma pauperis on appeal, as any appeal would be 

frivolous. See Fed. R. App. P. 24(a). 

V 

Accordingly, it is ORDERED that the petition for writ of habeas corpus (ECF No. 1) is 

DENIED. 

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It is further ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that permission to proceed in forma pauperis on appeal is 

DENIED. 

Dated: February 16, 2012 

 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on February 16, 2012. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS

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