UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

T.J. SUTTON,

Petitioner,

v.

LLOYD RAPELJE,

Respondent. 

/

Case Number: 2:09-CV-10616

HON. NANCY G. EDMUNDS

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner T.J. Sutton filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254. Petitioner, who is presently incarcerated at the Saginaw Correctional

Facility in Freeland, Michigan, challenges his convictions for armed robbery, felon in

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

second offense. For the reasons set forth below, the Court denies the petition. 

I. Background

Petitioner’s convictions arise from a robbery at a McDonald’s restaurant in Detroit

on June 10, 2003. 

Robert Anderson testified that he was at a McDonald’s restaurant on June 10,

2003, when he heard an individual angrily demand to speak to a manager. Anderson

observed the individual lift his shirt up. The manager then handed money over to the

individual. As he was exiting the restaurant, the individual stopped, removed a handgun

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from his waistband, and stated, “you all think I’m playing.” Tr., Vol. II at 92-93. 

Anderson testified the man then left the restaurant and drove off in a brown vehicle. 

Anderson identified Petitioner as the individual with the handgun.

Dominic Haynes testified that she was employed at the McDonald’s on the day of

the robbery. She saw a man having an argument with the manager. Haynes then saw the

man show the manager a handgun that was in his waistband. The day after the robbery,

Haynes was shown a photographic lineup. She identified an individual who was not

Petitioner as the perpetrator. But, at trial, she identified Petitioner as the perpetrator and

said she was certain in her identification of him. 

Paulette Green also testified that she was working at the McDonald’s on the day of

the robbery. A man she later identified as Petitioner approached her cash register,

displayed a gun and told her “this is a holdup.” Id. at 125-126. Green summoned her

manager. Her manager gave Petitioner money. Before leaving, Petitioner pointed the

gun at other employees stationed behind the counter and told them not to move until he

had left.

Kenneth Golden testified that he was employed as a store manager at McDonald’s

on June 10, 2003. He responded to a request from a customer to see the manager. 

Golden testified that the individual told him that “this is a robbery.” Id. at 139-140. The

individual lifted his shirt, revealing a gun tucked in his waistband. The individual ordered

Golden to give him all the money. Golden opened the cash register and gave him

approximately $50. While he was unable to identify Petitioner at a photo lineup, at trial,

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Golden identified Petitioner as the perpetrator. 

Police officer Ryan May testified that he received a radio report to be on the

lookout for a champagne-colored Ford Taurus bearing license place number VQV 366 as

it was believed to be related to a robbery at a McDonald’s. Officer May testified that he

observed a Taurus meeting that description and bearing that license plate number at a gas

station. He and his partner ordered the driver out of the vehicle and handcuffed him. A

.38 caliber revolver was retrieved from between the seats. The driver identified himself

as T.J. Sutton. 

Petitioner testified in his own defense. He testified that he was driving his son’s

Ford Taurus because he had taken the vehicle for repairs. He claimed that police beat

him up before arresting him. He denied any involvement in the robbery. 

II. Procedural History

Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of

armed robbery, felon in possession of a firearm, and possession of a firearm during the

commission of a felony, second offense. On December 19, 2003, he was sentenced to 23

years, 9 months to 50 years in prison for the armed robbery conviction, 3 years, 4 months

to 5 years in prison for the felon-in-possession conviction, and two years in prison for the

felony-firearm conviction. 

Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised

these claims:

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I. The trial court erroneously ruled that he was competent to be tried, and/or

the trial court failed to refer [Petitioner] for a competency evaluation, when

the question of competency arose during trial after [Petitioner's] behavior

and new information indicated that he was incompetent to stand trial at that

time, thereby denying [Petitioner] due process pursuant to US Const. Ams

V, XIV; and Mich Const. 1963, Art I, § 17.

II. The trial court committed reversible error in erroneously instructing the jury

on the concept of reasonable doubt, thereby denying [Petitioner] due

process pursuant to US Const. Ams V, XIV; and Mich Const. 1963, Art I, §

17.

The Michigan Court of Appeals affirmed his convictions. People v. Sutton, No.

253177 (Mich. Ct. App. Aug. 2, 2005).

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

raising the same claims raised in the Michigan Supreme Court. The Michigan Supreme

Court denied leave to appeal, People v. Sutton, 474 Mich. 942 (Mich. Nov. 29, 2005), and

denied Sutton’s motion for reconsideration. People v. Sutton, 474 Mich. 1067 (Mich.

Feb. 27, 2006). 

In May 2006, Petitioner filed a motion for relief from judgment. He raised the

following claims:

I. Petitioner was denied substantive due process of law by being tried and

convicted while mentally incompetent to stand trial.

II. Petitioner was denied the effective assistance of trial counsel because of his

failure to investigate defendant’s competence to stand trial.

III. Petitioner was denied effective assistance of appellate counsel because of

his failure to raise the issues noted above in Petitioner’s appeal of right.

IV. Petitioner meets the requirements of Mich. Ct. R. 6.508(D).

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The trial court denied the motion. People v. Sutton, No. 03-007511-01 (Wayne

County Cir. Ct. Oct. 31, 2006).

Petitioner sought leave to appeal in the Michigan Court of Appeals and Michigan

Supreme Court from the denial of his motion for relief from judgment. Both state

appellate courts denied leave to appeal. People v. Sutton, No. 280802 (Mich. Ct. App.

Apr. 16, 2008); People v. Sutton, 482 Mich. 1062 (Mich. 2008). 

Petitioner then filed the pending petition. He raises these claims:

I. Substantive due process violation – incompetency.

II. Ineffective assistance of trial counsel.

III. Ineffective assistance of appellate counsel.

IV. Lower court judge’s abuse of discretion.

V. Trial court’s erroneous jury instruction.

III. Standard

The petitioner’s claims are reviewed against the standards established by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 (AEDPA). The AEDPA provides:

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

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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceedings. 

28 U.S.C. § 2254(d). 

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a

rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute

permits a federal habeas court to ‘grant the writ if the state court identifies the correct

governing legal principle from [the Supreme] Court but unreasonably applies that

principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)

(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court 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. “A state court’s determination that a claim

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

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

S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

“Section 2254(d) reflects the view that habeas corpus is a guard against extreme

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malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal. . . . As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

at 786-87 (internal quotation omitted). 

Section 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 at the time the state court renders its decision. See

Williams, 529 U.S. at 412. Section 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 v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established

law” are to be determined solely by resort to Supreme Court rulings, the decisions of

lower federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing

Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.

2d 354, 359 (E.D. Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual

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

only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th

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Cir. 1998).

IV. Discussion

A. Competency Hearing

In his first claim, Petitioner argues that the trial court erred in denying his request

for a competency hearing. 

The Due Process Clause of the Fourteenth Amendment prohibits the criminal

prosecution of a defendant who is not competent to stand trial. Medina v. California, 505

U.S. 437, 439 (1992). If, at any point, “before or during trial ‘sufficient doubt’ arises

about a defendant’s competence – ‘the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his defense’ –

the trial court should order a competency hearing.” Cowans v. Bagley, 639 F.3d 241, 247

(6th Cir. 2011), quoting Drope v. Missouri, 420 U.S. 162, 180 (1975). There are “no

fixed or immutable signs” of incompetence “which invariably indicate the need for

further inquiry to determine fitness to proceed.” Drope 420 U.S. at 180. “[T]he standard

is a high one, and the relevant factors – ‘evidence of a defendant’s irrational behavior, his

demeanor at trial, and any prior medical opinion on competence’ – ‘are difficult to

evaluate.’” Cowans, 639 F.3d at 247 (6th Cir. 2011), quoting Drope, 420 U.S. at 180. 

In Cowans v. Bagley, 639 F.3d 241, 247 (6th Cir. 2011), the Sixth Circuit Court of

Appeals, on habeas review of a capital case, considered whether the petitioner’s due

process rights were violated by the state trial court’s failure to order a competency

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examination based upon the petitioner’s behavior before and during the trial, and during

the mitigation phase. The behavior that the petitioner, Cowans, argued necessitated a

competency evaluation included the following: at a pre-trial hearing, when the trial court

denied Cowans’ request for a second substitute counsel, Cowans asked to be removed

from the hearing; when the jury read its guilty verdict, Cowans became verbally abusive

and challenged the jurors to look him in the eye, leading the judge to order Cowans

removed from the courtroom; Cowans asked not to be present during the mitigation

phase; he disabled the closed circuit television provided to allow him to view the

proceedings; and Cowans ordered his attorney not to present any mitigating evidence. Id.

at 245-46. 

The Sixth Circuit held that Cowans’ behavior did not suggest that he was

incompetent, that is, “incapable of understanding the nature of the charges against him or

assisting in his defense.” Id. at 247. Cowans behavior, instead, evidenced an

understanding of the proceedings because they were precipitated by negative trial

developments. His behavior, the Court reasoned, “could be read in one of two ways: as

evidence of mental incompetence or of an angry, hostile personality.” Id. The trial court,

which had the benefit of interacting with Cowans, “concluded that he acted out of pique,

not out of mental incompetence.” Id. at 247-48. The Court of Appeals held that the trial

Court’s decision was a reasonable one. 

In United States v. Shan Wei Yu, 484 F.3d 979 (8th Cir. 2007), the Eighth Circuit

Court of Appeals held that a defendant’s repeated complaints about his attorneys,

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including that one attorney pressured him to plead guilty, evidenced that the defendant

understood the case against him and was capable of consulting with his attorneys. Id. at

985. The Court of Appeals, reviewing the case on direct appeal, noted that the district

court judge observed the defendant testify and directly conversed with him. Id. The fact

that the defendant was taking three medications (Prozac, Ativan, and Seroquel) did not

require a competency hearing. Id. 

In this case, the Michigan Court of Appeals held that the record did not support

Petitioner’s argument that a competency evaluation should have been ordered. The

Michigan Court of Appeals recognized that the Due Process Clause requires that a

defendant understand the charges against him and is able to assist in his own defense. 

Sutton, slip op. at 1-2. The state court, citing Drope v. Missouri, 420 U.S. 162 (1975),

recognized that a court need not rely on defense counsel to request a competency

evaluation, but, instead, may rely on the its own observations of defendant’s demeanor at

trial, evidence of defendant’s irrational behavior, and any prior medical opinion on

competence, to determine whether further inquiry is required. Id. The state court

concluded that, considering all the factors discussed in Drope, a competency evaluation

was not warranted, reasoning as follows:

In this case, there is no existing medical opinion regarding defendant's

competence. The record showed that defendant had been diagnosed with

depression, but there was no evidence that he was suffering from the effects

of that disorder at the time of trial. He had been hospitalized briefly the day

before trial and treated with diphenhydramine, a medication that appears to

be unrelated to the treatment of mental illness. 2 Schmidt, Attorneys'

Dictionary of Medicine (New York: Matthew Bender & Co, 2000), p.

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D-146. The fact that defendant was treated with this medication is

consistent with counsel’s representation that defendant was hospitalized due

to a reaction to some other medication.

There is nothing in the record to suggest that defendant's demeanor at trial

was anything other than normal except for the brief outburst which led to

his temporary removal from the courtroom. That outburst appeared to have

been prompted by an angry reaction to the court’s refusal to adjourn trial, as

opposed to delusional thinking. Counsel never claimed that defendant

could not communicate effectively with her, and the record showed that

after defendant calmed down, he was able to assist counsel in presenting his

defense and did in fact testify. Based on the record presented, we find that

the trial court did not abuse its discretion in finding that there was not a

bona fide doubt regarding defendant's competence.

Sutton, slip op. at 2.

The state court’s holding was a reasonable determination in view of the relevant

circumstances. As the state court noted, Petitioner’s outburst was motivated by an

adverse court ruling, evidencing an understanding of the proceedings. Petitioner’s

testimony at trial showed him to be capable of following and understanding questioning

and responding in a relevant, coherent manner. He did not have further outbursts. The

trial court, having the benefit of observing and interacting with Petitioner, concluded that

Petitioner was not having any difficulty communicating with counsel or assisting in his

own defense. The trial court concluded that the situation simply did not warrant a

competency evaluation. That was a reasonable determination on this record.

B. Alleged Ineffective Assistance of Trial and Appellate Counsel

Petitioner argues that his trial attorney was ineffective for failing to investigate his

case generally, and, more specifically, for failing to investigate materials supporting his

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competency. He also alleges that appellate counsel was ineffective for failing to raise this

issue on direct appeal. 

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

governs claims of ineffective assistance of counsel. Towns v. Smith, 395 F.3d 251, 258

(6th Cir. 2005). To show a violation of the Sixth Amendment right to effective assistance

of counsel, a petitioner must establish that his attorney’s performance was deficient and

that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. An

attorney’s performance is deficient if “counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. The defendant must show “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 689. The Supreme Court has “declined to

articulate specific guidelines for appropriate attorney conduct and instead [has]

emphasized that the proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510,

521 (2003). 

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

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

Strickland, 466 U.S. at 687. The petitioner must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

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the outcome.” Id. at 694. Unless the petitioner demonstrates both deficient performance

and prejudice, “it cannot be said that the conviction [or sentence] resulted from a

breakdown in the adversary process that renders the result unreliable.” Id. at 687.

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

U.S. __, 130 S. Ct. 1473, 1485 (2010). 

[T]he 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-

90. Even under de novo review, the standard for judging counsel’s

representation is a most deferential one. Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the

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

judge. . . . The question is whether an attorney’s representation amounted to

incompetence under ‘prevailing professional norms,’ not whether it

deviated from best practices or most common custom. Strickland, 466 U.S.

at 690. 

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

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

Strickland and § 2254(d) are both “highly deferential,” id., at 689, 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.

Richter, __ U.S. __, 131 S. Ct. at 788. 

The last court to issue a reasoned opinion regarding Petitioner’s ineffective

assistance of counsel claim was the trial court, in its opinion denying the motion for relief

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from judgment and its opinion denying Petitioner’s motion for reconsideration. The trial

court held that Petitioner had failed to establish ineffective assistance of counsel because

he failed to show that counsel should have investigated further or that any true question

regarding Petitioner’s competence to stand trial existed. 

“[A] petitioner cannot show deficient performance or prejudice resulting from a

failure to investigate if the petitioner does not make some showing of what evidence

counsel should have pursued and how such evidence would have been material.” 

Hutchison v. Bell, 303 F.3d 720, 748-49 (6th Cir.2002) (citing Austin v. Bell, 126 F.3d

843, 848 (6th Cir. 1997) and Martin v. Mitchell, 280 F.3d 594, 608 (6th Cir. 2002)). The

state court’s opinion is neither contrary to nor an unreasonable application of Strickland. 

Petitioner argues that because he was taking an antidepressant at the time of trial, he was

incompetent to stand trial. Most of the materials Petitioner submits predate his trial by

approximately a decade. Their relevance to his competency at the time of trial is

questionable. In addition, Petitioner provides a two-page document summarizing a trip to

the emergency room the day before his trial commenced. He was diagnosed with

depression, with no suicidal or homicidal psychotic features. It is not surprising that, on

the eve of a criminal trial, a defendant would feel depressed and complain of

sleeplessness. Defense counsel moved for a competency evaluation, but the motion was

denied. Petitioner has failed to show what further evidence defense counsel could have

obtained and presented which may have persuaded the court to order a competency

evaluation. The state court’s conclusion that counsel was not ineffective in not

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investigating this issue further is not contrary to or an unreasonable application of

Supreme Court precedent. 

Petitioner also argues that appellate counsel was ineffective in failing to raise

ineffective assistance of trial counsel on direct appeal. The Supreme Court has held that a

petitioner does not have a constitutional right to have appellate counsel raise every nonfrivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). 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 Cir.

1990). 

Petitioner has failed to show that his ineffective assistance of counsel claim was

potentially meritorious. Therefore, Petitioner cannot show that his appellate attorney was

ineffective for failing to raise them on direct appeal. 

C. Denial of Motion for Evidentiary Hearing

Next, Petitioner argues that the trial court violated his right to due process because

the court denied his request for an evidentiary hearing on collateral review. 

Federal habeas corpus relief is available only to persons being held in state custody

“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254(a). It is not a remedy for an alleged violation of state law. Estelle v. McGuire, 502

U.S. 62, 67 (1991). States “have no obligation to provide” post-conviction review under

the Constitution. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (citation omitted). 

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Since states are not required to provide such review, federal courts have held that

challenges to a state’s post-conviction procedures are not cognizable as independent

claims in habeas corpus proceedings, because such claims “address collateral matters and

not the underlying state conviction giving rise to the prisoner’s incarceration.” Kirby v.

Dutton, 794 F.2d 245, 247, 248 (6th Cir. 1986). See also Cress v. Palmer, 484 F.3d 844,

853 (6th Cir.2007) (“[E]rrors in post-conviction proceedings are outside the scope of

federal habeas corpus review.”); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir.1984)

(holding that “[i]nfirmities in state habeas corpus proceedings do not constitute grounds

for federal habeas relief.”). 

Therefore, Petitioner’s claim challenging procedures related to his post-conviction

collateral review proceedings in state court is not cognizable on federal habeas review. 

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D. Jury Instruction on Reasonable Doubt

Finally, Petitioner objects to the jury instruction on reasonable doubt. The trial

court gave the following reasonable doubt instruction:

The standard of proof, again, is reasonable doubt, proof beyond a

reasonable doubt. It is not proof beyond all doubt. It is not proof beyond a

shadow of a doubt. It is proof beyond a reasonable doubt.

Now, a reasonable doubt is the kind of doubt that you can assign a reason

for having the doubt. It’s based on reason and common sense. A fair,

honest, and reasonable doubt. 

If you can say that you have an abiding conviction to a moral certainty, then

you have no reasonable doubt. If you do not have an abiding conviction to

a moral certainty, you do have a reasonable doubt.

In other words, a reasonable doubt is a fair, honest, and reasonable doubt. It

is not a vain, imaginary, flimsy, a hunch, it is not a feeling, it is not a

possibility of innocence. It’s a fair, honest, and reasonable doubt. The kind

of doubt that you can assign a reason for having. The kind of doubt that

would make you hesitate before making an important decision. 

Tr., Vol. III, 103-04. 

Petitioner argues that the court’s reference to assigning a reason to the doubt

improperly shifted the burden of proof to him. He further argues that use of the phrase

“moral certainty” also shifted the burden of proof. Respondent argues that this claim is

procedurally defaulted. “[F]ederal courts are not required to address a procedural-default

issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d

212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). 

“Judicial economy might counsel giving the [other] question priority, for example, if it

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were easily resolvable against the habeas petitioner, whereas the procedural-bar issue

involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, the

Court finds that the interests of judicial economy are best served by addressing the merits

of this claim. 

An erroneous jury instruction warrants habeas corpus relief only where the

instruction “‘so infected the entire trial that the resulting conviction violates due

process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414

U.S. 141, 147 (1973)). “[I]t must be established not merely that the instruction is

undesirable, erroneous, or even ‘universally condemned,’ but that it violated some

[constitutional] right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The jury

instruction “‘may not be judged in artificial isolation,’ but must be considered in the

context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72

(quoting Cupp, 414 U.S. at 147). The court must “inquire ‘whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way’ that violates the

Constitution.” Ibid. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

Where the state has accused an individual of violating its criminal laws and seeks

to punish him, “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.’” Cage v. Louisiana, 498 U.S.

39, 39 (quoting Winship, 397 U.S. at 364). See also Jackson v. Virginia, 443 U.S. 307,

315-16 (1979). “This reasonable-doubt standard plays a vital role in the American

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scheme of criminal procedure. Among other things, it is a prime instrument for reducing

the risk of convictions resting on factual error.” Cage, 498 U.S. at 89-90. When

determining whether a particular definition of reasonable doubt violated a defendant's due

process rights, “the proper inquiry is not whether the instruction ‘could have’ been

applied in an unconstitutional manner, but whether there is a reasonable likelihood that

the jury did so apply it.” Victor v. Nebraska, 511 U.S. 1, 6 (1994). Since “the

Constitution does not require that any particular form of words be used in advising the

jury of the government's burden of proof,” the instructions must “correctly convey the

concept of reasonable doubt” when “taken as a whole.” Id.

In Burton v. Bock, 187 F. App’x 465 (6th Cir. 2006), the Sixth Circuit Court of

Appeals considered whether a definition of reasonable doubt as one the jury “could assign

a true substantive reason to” increased the level of doubt necessary to acquit and,

consequently, also decreased the prosecutor’s burden of proof. The Court of Appeals

held that the instructions, considered as a whole, did not improperly lower the

prosecutor’s burden of proof. Id. Other courts also have held that the “assign a reason”

instruction does not allow a conviction on lesser proof than the reasonable-doubt standard

requires. See Robinson v. Callahan, 694 F.2d 6 (1st Cir. 1982) (holding that instruction

defining a reasonable doubt as “a doubt for which you can give a reason” did not warrant

habeas relief); United States v. Harris, 346 F.2d 182, 184-85 (4th Cir. 1965) (“assign a

reason” language is not error); Hawkins v. Birkett, No. 2:08-CV-12281, 2011 WL 87256,

*17 (E.D. Mich. Jan. 11, 2011) (holding that the instruction that a reasonable doubt is

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 The relevant instruction in Cage provided:

It must be such doubt as would give rise to a grave uncertainty, raised in your

mind by reasons of the unsatisfactory character of the evidence or lack thereof. A

reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It

is a doubt that a reasonable man can seriously entertain. What is required is not an

absolute or mathematical certainty, but a moral certainty.

Cage, 498 U.S. at 40. 

20

merely “[a] doubt which you can assign a reason for having” does not decrease

prosecutor’s burden of proof). When viewed in the context of the instructions as a whole,

the instruction that the jurors should be able to assign a reason to their doubt did not

lower the prosecution’s burden of proof because it simply conveyed to the jury that a

reasonable doubt must be based on reason, as opposed to fancy, whim, or a hunch. 

Petitioner also objects to the use of the language “moral certainty,” arguing that the

phrase invited jurors to return a verdict based on something other than the evidence

before them. In Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the Supreme Court

found a jury instruction on reasonable doubt that referenced “a moral certainty” to be

unconstitutional.1

 Id. at 40. The Supreme Court “held that the instruction allowed a

reasonable juror to find guilt based on a degree of proof below that required by the

Constitution because it required a ‘moral certainty,’ rather than an ‘evidentiary certainty,’

that the defendant was guilty, and it suggested that jurors needed an ‘actual substantial

doubt’ or a ‘grave uncertainty,’ instead of a ‘reasonable doubt,’ to acquit. Austin v. Bell,

126 F.3d 843, 847 (6th Cir. 1997), quoting Cage, at 40-41, 44. Use of the term “moral

certainty” does not, of itself, render a “reasonable doubt” instruction unconstitutional. 

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Victor, 511 U.S. at 15-17. The phrase “moral certainty” is constitutionally permissible

where the rest of the instruction “lends content to the phrase,” and indicates the

government's proper burden of proof. Austin, 126 F.3d at 847 (citations omitted). 

The reasonable doubt jury instruction in this case informed the jury that its verdict

had to be based on the evidence, the lack of evidence, or on the unsatisfactory nature of

the evidence. The instructions, considered as a whole, did not suggest a lower standard of

proof than that required by due process. The Court concludes that the instruction

accurately conveyed the concept of reasonable doubt.

V. Certificate of Appealability

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

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

the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or

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

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

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

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

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

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

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

debate the conclusion that the petition fails to state a claim upon which habeas corpus

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relief should be granted. Therefore, the Court will deny a certificate of appealability.

VI. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: February 28, 2012

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

on February 28, 2012, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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