UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORY HUDSON,

Petitioner,

v.

DEBRA SCUTT,

Respondent.

__________________________/

Civil Action Number: 2:09-cv-13703

Honorable Victoria A. Roberts

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING AN

APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Michigan prisoner

Cory Hudson is incarcerated by the Michigan Department of Corrections at the G. Robert Cotton

Correctional Facility in Jackson, Michigan. He is serving a life sentence, with the possibility of

parole after fifteen years. In 2004, he was convicted of possession of 650 or more grams of

cocaine in Oakland County, Michigan. He was tried jointly with co-defendants, Pablo Bonilla

and Ricardo Arias, before a single jury.

 Petitioner alleges that he is incarcerated in violation of his constitutional rights because

(1) the prosecution’s evidence that he aided and abetted the possession of the cocaine was

insufficient to support his conviction, (2) the prosecutor committed misconduct by mischaracterizing the evidence and shifting the burden of proof, and (3) appellate counsel was

ineffective for failing to raise the issue that the prosecutor elicited inadmissible hearsay

testimony from a confidential informant through the testimony of a police officer, in violation of

his rights under the Confrontation Clause.

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Respondent says Petitioner’s claims either lack merit or were procedurally defaulted.

On May 26, 2010, Petitioner filed a Motion to Appoint Counsel, which the Court denied

on June 9, 2010. See Order Den. Mot. to Appoint Counsel, June 9, 2010 [dkt. # 10]. Petitioner

filed a second Motion to Appoint Counsel, asking for assistance in the preparation of his case

because he was unable to properly do so because of his blindness. On August 2, 2010, the Court

granted Petitioner’s request. See Order Granting Second Mot. to Appoint Counsel [dkt. # 13].

On August 4, 2010, the Court issued an Order Appointing Federal Defender [dkt. # 14],

and, on August 27, 2010, James R. Gerometta filed an Appearance on behalf of Petitioner. See

Att’y Appearance [dkt. # 16]. Recently, on April 25, 2012, Mr. Gerometta filed a Supplemental

Memorandum in Support of Petition, addressing only Petitioner’s third claim: that appellate

counsel was ineffective for failing to raise a claim under the Confrontation Clause. See

Supplemental Br., 2 Apr. 25, 2012 [dkt. # 18].

The Court denies the Petition. The Court also declines to issue Petitioner a Certificate of

Appealability but will grant him an Application for Leave to Proceed On Appeal In Forma

Pauperis.

II. BACKGROUND

Petitioner was originally charged with one count of possession with intent to deliver 650

or more grams of cocaine. The jury convicted him and his co-defendants, Bonilla and Arias, of

the lesser offense of possession of 650 or more grams of cocaine. Testimony revealed the

following pertinent facts.

In late 2001, through early 2002, Pontiac Police Department Officer Jeremy Pittman was

assigned to the Narcotics Enforcement Section of the Department. He became involved in an

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investigation that began with a “smaller level cocaine dealer” and worked its way up to “larger

scale dealers.” Trial Tr. vol. I, 217 Feb. 24, 2004. According to Officer Pittman, the goal of the

investigation was to discover who was supplying cocaine to “mid-level dealers in the City of

Pontiac.” Id. at 218.

Officer Pittman testified that over the course of his investigation, he had the first names,

and physical descriptions, of a number of suspects, “Cory,” “Pablo,” and “Ricky.” Trial Tr. vol.

I, 218 Feb. 24, 2004. Officer Pittman also said he had general descriptions of the suspects. The

description for Pablo was a Puerto Rican or Hispanic male with long hair; for Ricky, a short,

thin, black male who drove a dark-gray pick-up truck with a cap on the back; and for Petitioner,

a thin, black male with light skin and braids. It was believed that these individuals were

operating out of a home in Detroit in the area known as “Mexicantown.”

The police set up surveillance. The surveillance was conducted for several days. 

Evidence was presented that the police saw the three individuals arrive at the Detroit residence in

three separate vehicles on February 7, 2002. The officers then saw Petitioner, Bonilla, and

Arias, come out of the house and briefly carry on a conversation in the street. Afterward, Bonilla

got into the passenger side of the pick-up truck that Arias drove. Petitioner removed a dark

jacket from the car that he drove, a light-colored Ford Taurus, walked over to a dark-colored

Ford Taurus, and got into that car driven by a female. The dark-colored Taurus and Arias’ pickup truck left together, with the pick-up truck in the lead. The vehicles travelled from Detroit to

Pontiac in tandem for approximately one hour. There was testimony that the dark-colored

Taurus closely followed the pick-up truck, including switching lanes only when the pick-up

truck did so.

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There was testimony that, when the police stopped the dark-colored Taurus, the pick-up

truck immediately “cross[ed] over three lanes,” made a U-turn, slowly drove past where the

Taurus was stopped, and then sped away, disregarding traffic laws. Trial Tr. vol. I, 230 Feb. 24,

2004. The Taurus contained the female driver and two male passengers. The person in the rear

was later identified as Petitioner. There were two black coats on the rear seat, one was on the

seat where Petitioner had been sitting. Beneath one of the black coats was a yellow plastic

Murray’s Discount Auto bag containing a “brick” of more than 916 grams of cocaine.

Latent fingerprints for co-defendants Bonilla and Arias were on the bag. Other latent

fingerprints found on the package did not match Petitioner’s.

Petitioner did not testify. A Motion for a Directed Verdict was denied. Trial Tr. vol. III,

124-25 Feb. 27, 2004. On April, 5, 2004, Petitioner was convicted and sentenced.

Petitioner filed a Direct Appeal with the Michigan Court of Appeals, raising what form

the first two claims in his Habeas Petition. On January 17, 2006, the Court of Appeals affirmed

his conviction and sentence. People v. Hudson, No. 255237, 2006 WL 120365 (Mich. Ct. App.

Jan. 17, 2006). Petitioner filed an Application for Leave to Appeal the Court of Appeals’s

decision with the Michigan Supreme Court, raising the same claims 

raised in the Court of Appeals. On June 26, 2006, the Supreme Court denied the Application.

People v. Hudson, 475 Mich. 886; 715 N.W.2d 875 (2006).

In July 2007, Petitioner filed a Motion for Relief from Judgment, pursuant to Michigan

Court Rule 6.508(D), with the state trial court, raising what forms the third claim in his Habeas

Petition. The trial court denied the Motion on August 31, 2007. People v. Hudson, No. 02-

183420-FC (Oakland Cnty. Cir. Ct. Aug. 31, 2007). Petitioner’s subsequent Delayed

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Application for Leave to Appeal to the Court of Appeals was denied because “defendant has

failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v.

Hudson, No. 285111 (Mich. Ct. App. Dec. 9, 2008). His Application for Leave to Appeal that

decision, filed with the Michigan Supreme Court, was denied for the same reason on August 6,

2009. People v. Hudson, 484 Mich. 868; 769 N.W.2d 669 (2009).

Petitioner filed this Habeas Petition on September 18, 2009, signed but not dated.

III. DISCUSSION

A. Standard of Review

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), which

provide:

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 proceedings.

28 U.S.C. § 2254(d).

A decision of a state court is “contrary to” clearly established federal law if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

or if the state court decides a case differently than the Supreme Court has on a set of materially

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indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable

application” occurs when “a state-court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may not issue the

writ simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

The Supreme Court has explained that “[a] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal system.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly

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

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

(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24

(2002) ( per curiam )). “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, 786 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that

even a strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v.

Pinholster, --- U.S. ---, 131 S.Ct. 1388, 1398 (2011) (holding that “[t]his is a difficult to meet

and ‘highly deferential standard for evaluating state-court rulings”) (citing Harrington, --- U.S.

at ---, 131 S.Ct at 786 and Woodford, 537 U.S. at 24) (internal quotation marks omitted).

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

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

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through appeal.” Harrington, --- U.S. at ---, 131 S.Ct. at 786 (citing Jackson v. Virginia, 443

U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). Thus, to obtain habeas relief in

federal court, a state prisoner is required to show that the state court’s rejection of his claim “was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington, --- U.S. at ---, 131 S.Ct.

at 786-87.

With those standards in mind, the Court addresses the merits of Petitioner’s claims.

B. Claim I–Insufficient Evidence

Petitioner alleges that insufficient evidence was presented to support a conviction that he

aided and abetted the possession of cocaine. 

“[T]he 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). On direct review, the standard of review for

a sufficiency of the evidence challenge must focus on whether “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in

original). In the habeas context, “[t]he Jackson standard must be applied ‘with explicit reference

to the substantive elements of the criminal offense as defined by state law.’” Brown v. Palmer,

441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). “A reviewing court

does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor

has been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir.

2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). “The mere existence of

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sufficient evidence to convict therefore defeats a petitioner’s claim.” Matthews, 319 F.3d at

788-89.

Under Michigan law, possession of a controlled substance requires a showing of

“dominion or right of control over the drug with knowledge of its presence and character.”

People v. McKinney, 258 Mich.App. 157, 165; 670 N.W.2d 254, 260 (2003) (internal quotation

and citations omitted). “[P]ossession may be either actual or constructive, and may be joint as

well as exclusive.” Id. at 166; 670 N.W.2d 254 (citation omitted). “Likewise, possession may

be found even when the defendant is not the owner of recovered narcotics.” People v. Wolfe,

440 Mich. 508, 520; 489 N.W.2d 748, 753 (1992), modified, 441 Mich. 1201 (1992) (citations

omitted). “Moreover, possession may be joint, with more than one person actually or

constructively possessing a controlled substance.” Id. (citations omitted). Mere presence where

the controlled substance was found is insufficient to establish possession; rather, an additional

connection between the defendant and the controlled substance must be established. Id.

(citations omitted). Constructive possession exists when the totality of the circumstances

indicates a sufficient nexus between the defendant and the controlled substance. Id. at 521; 489

N.W.2d at 754.

Because it is difficult to prove an actor’s state of mind, only minimal

circumstantial evidence is required. Circumstantial evidence and the reasonable

inferences that arise from the evidence can constitute satisfactory proof of

possession. Circumstantial evidence that a defendant had the exclusive control or

dominion over property on which contraband narcotics are found is sufficient to

establish that the defendant constructively possessed the drug.

People v. McGhee, 268 Mich.App. 600, 623; 709 N.W.2d 595, 612 (2005) (internal citations

omitted).

To convict a defendant under an aiding and abetting theory, the prosecution must

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establish that the crime was committed by the defendant or some other person, that the defendant

performed acts or gave encouragement which aided or assisted in the commission of the crime,

and that the defendant either intended to commit the crime or knew that the principal intended to

commit the crime at the time he gave the aid or encouragement. People v. Robinson, 475 Mich.

1, 8-9; 715 N.W.2d 44, 49 (2006) (quoting People v. Moore, 470 Mich. 56, 67-68; 679 N.W.2d

41, 49 (2004)); see also Bonilla v. Lafler, No. 06-15466, 2009 WL 2386080, at *18 (E.D. Mich.

July 30, 2009) (Edmunds, J.) (same). The state of mind of an aider and abettor may be inferred

from all the facts and circumstances. Moore, 470 Mich. at 67-68; 679 N.W.2d at 49.

The Michigan Court of Appeals held that sufficient evidence was presented to show

possession of the cocaine, reasoning in relevant part:

Viewed in a light most favorable to the prosecution, the evidence was

sufficient for a rational trier of fact to conclude beyond a reasonable doubt that

defendant knowingly possessed the cocaine. Evidence was presented that, during

surveillance, the police observed the three defendants arrive at a residence in

three separate vehicles. Shortly thereafter, officers observed defendant, and

codefendants Arias and Bonilla come out of the house, and briefly converse in the

street. Thereafter, codefendant Bonilla got into the passenger side of a pickup

truck that codefendant Arias was driving. Defendant removed a dark jacket from

the car that he was previously driving, a light-colored Taurus, and walked over to

a dark-colored Taurus. The dark-colored Taurus and a pickup truck then left

simultaneously, with the pickup truck in the lead, and continued to travel from

Detroit to Pontiac in tandem for approximately an hour. When the police stopped

the Taurus, defendant was the sole rear-seat passenger. As the police secured the

Taurus, officers observed defendant making suspicious movements, including

reaching under his seat and behind his back. When the police removed defendant

from the vehicle, an officer saw that defendant was sitting on a black jacket that

was covering a “brick” of more than 916 grams of cocaine. From this evidence, a

jury could reasonably infer that defendant knew that the cocaine was present and,

through his actions, attempted to conceal it.

Although the cocaine could also have belonged to others, possession may

be joint. Here, defendant was charged as a principal and as an aider and abettor.

A person who aids or abets the commission of a crime may be convicted and

punished as if he directly committed the offense. “‘Aiding and abetting’

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describes all forms of assistance rendered to the perpetrator of a crime and

comprehends all words or deeds that might support, encourage, or incite the

commission of a crime.” “The quantum of aid or advice is immaterial as long as

it had the effect of inducing the crime.” Further, even though defendant asserts

that the evidence linking him to the cocaine was weak, the jury was entitled to

accept or reject any of the evidence presented. Moreover, a prosecutor need not

negate every reasonable theory of innocence, but must only prove his own theory

beyond a reasonable doubt in the face of whatever contradictory evidence the

defendant provides. The evidence was sufficient to sustain defendant’s

conviction of possession of 650 or more grams of cocaine.

Hudson, 2006 WL 120365, at *1-2 (internal and end citations omitted).

Petitioner alleges that there was no evidence to show that he possessed or controlled the

cocaine at any time. He points to the absence of physical evidence, the fact that his fingerprints

were not found on the cocaine, and the fact that he had no cocaine on him when he was arrested.

A court does not look to facts that are absent in determining evidentiary sufficiency but

rather to the facts that were presented. Many imaginable “facts” are absent in every case,

including this one. There was, for example, no signed and videotaped confession. There was no

cocaine found in Petitioner’s hands.

Despite the absence of Petitioner’s fingerprints on the brick of cocaine, and even though

no cocaine was found physically in Petitioner’s grasp, the Court of Appeals, although not

specifically citing Jackson, clearly cited case law incorporating the Jackson standard and found

that there was sufficient evidence presented to allow a reasonable trier of fact to conclude that

Petitioner acted as an aider and abettor in this case.

Looking at the totality of the circumstances, the Court concludes that the evidence

presented at trial clearly supported a finding that the prosecutor established beyond a reasonable

doubt that Petitioner acted as an aider and abettor with respect to the possession of the cocaine.

The Court finds that the Court of Appeals’s holding was not contrary to or an unreasonable

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application of the Jackson standard. Petitioner is not entitled to habeas relief on his insufficient

evidence claim.

C. Claim II–Prosecutorial Misconduct

Petitioner contends that the prosecutor engaged in misconduct that rendered his trial

unfair. He argues that the prosecutor committed misconduct by mis-characterizing the evidence

during closing argument and improperly shifted the burden of proof.

The Michigan Court of Appeals rejected Petitioner’s first prosecutorial misconduct claim on the

merits and reviewed the remaining claim for plain error because counsel failed to

contemporaneously object to the conduct.

“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”

Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487,

512 (6th Cir. 2003)). To prevail on a habeas claim based upon prosecutorial misconduct,

Petitioner must show that the statements in question “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974). This is a high burden and, when reviewing the statements in question, the

Court must focus on “the fairness of the trial, not the culpability of the prosecutor.” Smith v.

Phillips, 455 U.S. 209, 219 (1982). The mere presence of prosecutorial misconduct is not

enough, “[r]eversal is required only if the prosecutor’s misconduct is ‘so pronounced and

persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice

the defendant.’” Lundgren v. Mitchell, 440 F.3d 754, 778 (6th Cir. 2006) (quoting Pritchett v.

Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)).

In determining whether prosecutorial misconduct meets the Donnelly standard of having

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“so infected the trial with unfairness as to make the resulting conviction a denial of due process,”

the Court uses a two-step analysis. Macias v. Makowski, 291 F.3d 447, 451-52 (6th Cir. 2002)

(quoting Donnelly, 416 U.S. at 643). The first step is to determine whether the “prosecutor’s

conduct and remarks were improper.” Macias, 291 F.3d at 452 (citation omitted). If the Court

concludes that they were improper, it must then apply a four factor test to determine “whether

the impropriety was flagrant,” and thus a violation of due process. Macias, 291 F.3d at 452

(quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)). Flagrancy depends on four

factors: “1) whether the statements tended to mislead the jury or prejudice the defendant; 2)

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

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

evidence against

the accused.” Millender, 376 F.3d at 528 (citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir.

2000) (quoting United States v. Carroll, 26 F.3d 1380, 1385 (6 Cir. 1994)).

Petitioner first claims that the prosecutor argued facts not in evidence during closing

argument; he claims there was no evidence that the item of clothing that he removed from the

light-colored Ford Taurus was the jacket that was later recovered from the dark-colored Ford

Taurus:

[ The prosecutor ]: I had to have some witnesses come and testify to you what

they observed during the surveillance . . . .

* * *

They meet at Bonilla’s house. They come in separate cars. They all get out. 

They go in the house. They come out of the house. They talk.

And then I saw Defendant Hudson go back to the light-colored Taurus, remove

People’s Exhibit 2, a dark jacket, and then go into-

[ Defense counsel ]: Your Honor, that misrepresents the testimony. There was no

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testimony that that was the jacket that he carried, if in fact he carried a jacket at

all.

[ The trial court ]: It’s argument. Go ahead.

Hudson, 2006 WL 120365, at *2-3 (emphasis in the original).

Prosecutors may not misstate the evidence, Carter, 236 F.3d at 784, or argue facts not in

evidence, Abela v. Martin, 380 F.3d 915, 929 (6th Cir. 2004), but they have “‘leeway to argue

reasonable inferences from the evidence’ during closing arguments.” United States v.

Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011) (quoting Byrd v. Collins, 209 F.3d 486, 535 (6th

Cir. 2000)). Here, the prosecutor’s statement regarding the jacket was a reasonable inference

from the evidence as it related to his theory of the case.

In addressing this claim, the Court of Appeals stated:

Although a prosecutor may not make a statement of fact to the jury that is

unsupported by the evidence, [], he is free to argue reasonable inferences arising

from the evidence as they relate to his theory of the case, and is not required to

phrase arguments and inferences in the blandest possible terms. During trial, an

officer testified that, during surveillance, he observed defendant remove a dark

jacket or sweater from a light-colored Taurus, and walk with the item to the

dark-colored Taurus. When the police subsequently stopped the dark-colored

Taurus, officers observed defendant, who was the sole rear-seat passenger, sitting

on a dark-colored jacket that was concealing the cocaine. Given this testimony,

the prosecutor’s statement was a reasonable inference from the evidence as it

related to his theory of the case.

Further, when defense counsel objected, the trial court instructed the jury

that the prosecutor’s comments constituted “argument.” In its final instructions,

the court instructed the jurors that the lawyers’ comments and arguments are not

evidence, and that the case should be decided on the basis of the evidence. These

instructions were sufficient to cure any possible prejudice. Juries are presumed to

follow their instructions. Consequently, this claim does not warrant reversal.

Hudson, 2006 WL 120365, at *3 (citations omitted).

The Court agrees with the Court of Appeals’s analysis of the issue and finds that the

prosecutor’s remarks were not improper; it was reasonable to make such an inference during

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closing argument. The Court of Appeals’s decision is not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent in this regard.

With respect to Petitioner’s remaining prosecutorial misconduct claim, Respondent

argues that the claim is procedurally defaulted because Petitioner failed to object at trial.

 Federal habeas relief may be precluded on a claim that a petitioner has not presented to

the state courts in accordance with the state’s procedural rules. See Wainwright v. Sykes, 433

U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The doctrine of

procedural default is applicable when a petitioner fails to comply with a state procedural rule, the

rule is actually relied upon by the state courts, and the procedural rule is “adequate and

independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); see also Howard v.

Bouchard, 405 F.3d 459, 477 (6th Cir. 2005) (same). “A procedural default does not bar

consideration of a federal claim on either direct or habeas review unless the last state court

rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state

procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last-explained, state-court

judgment should be used to make that determination. See Ylst v. Nunnemaker, 501 U.S. 797,

803-05 (1991).

In the present case, all of the prerequisites to a finding of procedural default are present.

The Court of Appeals expressly found that Petitioner’s challenge to the prosecutor’s misconduct,

with respect to shifting the burden of proof, had not been preserved for review, because of

counsel’s failure to make a contemporaneous objection at trial. Hudson, 2006 WL 120365, at

*2. The fact that the court went on to review the issue under a plain error standard does not

constitute a waiver of state procedural default rules. See Goodwin v. Johnson, 632 F.3d 301, 315

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(6th Cir. 2011); see also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling

precedent in our circuit indicates that plain error review does not constitute a waiver of state

procedural default rules.”); Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989) (a state court

does not waive a procedural default by looking beyond the default to determine if there are

circumstances warranting review on the merits). Nor does a state court fail to sufficiently rely

upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys,

929 F.2d 264, 267 (6th Cir. 1991).

The failure to make a contemporaneous objection is a recognized and firmly established

independent and adequate state law ground for refusing to review trial errors. See People v.

Carines, 460 Mich. 750, 763; 597 N.W.2d 130, 138 (1999); see also Coleman v. Thompson, 501

U.S. 722, 750-51 (1991) (same). The Michigan Court of Appeals denied relief on this claim

based upon a procedural default, defense counsel’s failure to object at trial.

A state prisoner who fails to comply with a state’s procedural rules waives the right to

federal habeas review absent a showing of cause for noncompliance and actual prejudice

resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of

justice. See Coleman, 501 U.S. at 753; Nields v. Bradshaw, 482 F.3d 442, 450 (6th Cir. 2007).

To establish cause, a petitioner must establish that some external impediment frustrated his

ability to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986);

see also Harrington, --- U.S. at ---, 131 S.Ct. at 787 (same). A petitioner must present a

substantial reason to excuse the default. See Amadeo v. Zant, 486 U.S. 214, 223 (1988). Such

reasons include interference by officials, attorney error rising to the level of ineffective

assistance of counsel, or a showing that the factual or legal basis for a claim was not reasonably

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available. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

Petitioner fails to allege cause for the procedural default of this claim, and habeas review

is barred.

Additionally, Petitioner has also not shown that a fundamental miscarriage of justice has

occurred if the Court does not review the claim. The miscarriage of justice exception requires a

showing that a constitutional violation probably resulted in the conviction of one who is actually

innocent. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “‘[A]ctual innocence’ means

factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624

(1998). “To be credible, [a claim of actual innocence] requires petitioner to support his

allegations of constitutional error with new reliable evidence–whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence–that was not presented

at trial.”

Schlup, 513 U.S. at 324. Petitioner has made no such showing. The claim is barred by

procedural default and does not warrant habeas relief.

D. Claim III–Ineffective Assistance of Appellate Counsel

In his final habeas claim, Petitioner alleges that appellate counsel was ineffective for

failing to raise a claim in his direct appeal that his rights under the Confrontation Clause were

violated when certain hearsay testimony was admitted during trial. Petitioner raised the claim

for the first time in his Motion for Relief from Judgment in the state trial court. This claim,

however, is not subject to procedural default because state collateral review under Michigan

Court Rule 6.500 et.seq., is the first opportunity for a criminal defendant to address the issue

concerning the effectiveness of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 614 (6th

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Cir. 2005). Thus, the Court addresses the merits of this claim.

The right to the effective assistance of counsel includes the right to the effective

assistance of appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). To prevail on a

claim of ineffective assistance of appellate counsel, Petitioner must demonstrate that appellate

counsel’s performance was deficient and that the deficient performance prejudiced the appeal.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Appellate counsel enjoys a strong presumption that the alleged ineffective assistance falls

within the wide range of reasonable professional assistance. See Willis v. Smith, 351 F.3d 741,

745 (6th Cir. 2003) (citing Strickland, 466 U.S. at 688, 694). It is not necessary for appellate

counsel to raise every non-frivolous claim on direct appeal. Smith v. Murray, 477 U.S. 527, 536

(1986). On the contrary, “[e]xperienced advocates since time beyond memory have emphasized

the importance of winnowing out weaker arguments on appeal and focusing on one central issue

if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). It is

well-recognized that the effect of adding weak arguments to an appellate brief “will be to dilute

the force of the stronger ones.” Id. at 752 (quoting R. Stern, Appellate Practice in the United

States 266 (1981)). “[I]f you cannot win on a few major points, the others are not likely to help,

and to attempt to deal with a great many in the limited number of pages allowed for briefs will

mean that none may receive adequate attention.” Id.

To evaluate a claim of ineffective assistance of appellate counsel, the Court assesses the

strength of the claim appellate counsel failed to raise. Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008). “Counsel’s failure to raise an issue on appeal could only be ineffective assistance if

there is a reasonable probability that inclusion of the issue would have changed the result of the

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appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). If there is a reasonable

probability that Petitioner would have prevailed on appeal had the claim been raised, then this

Court can consider whether the claim’s merit was so compelling that appellate counsel’s failure

to raise it amounted to ineffective assistance.

Petitioner argues that he was denied a fair trial by the introduction of Officer Pittman’s

testimony that the police were investigating drug trafficking, developed the names “Cory,”

“Pablo,” and “Ricky,” along with descriptions and an address in Detroit, and subsequently set up

surveillance of the area. That information testified to by Officer Pittman was given to him by a

confidential informant. It is Petitioner’s position that the testimony was based on impermissible

hearsay and violated his right under the Confrontation Clause, and that his appellate attorney was

ineffective for failing to raise the issue on appeal.

The Confrontation Clause of the Sixth Amendment states, “[i]n all criminal prosecutions,

the accused shall enjoy the right [] to be confronted with the witnesses against him.” U.S. Const.

amend. VI.

In Crawford v. Washington, 541 U.S. 36, 51 (2004), the Supreme Court asserted that “not

all hearsay implicates the Sixth Amendment’s core concerns.” Rather, the Supreme Court

introduced a distinction between testimonial and non-testimonial statements for Confrontation

Clause purposes, explaining that the protection applies only to prohibit “testimonial” statements

when the declarant is not available to be cross-examined by the defendant. Id. “It is the

testimonial character of the statement that separates it from other hearsay that, while subject to

traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis

v. Washington, 547 U.S. 813, 821 (2006). Testimonial statements include statements made in

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the course of police interrogation where the “primary purpose of the interrogation is to establish

or prove past events potentially relevant to later criminal prosecution.” Id. at 822.

A tip by a confidential informant to a police officer is considered testimonial in nature.

“The threshold determination that we must make is whether the statements of a confidential

informant to police are ‘testimonial’ in nature.” United States v. Cromer, 389 F.3d 662, 672 (6th

Cir. 2004). This Court must then consider the purpose of the testimonial statements, as the

Confrontation Clause “does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9.

“The proper inquiry [] is whether the declarant intends to bear testimony against the

accused. That intent, in turn, may be determined by querying whether a reasonable person in the

declarant’s position would anticipate his statement being used against the accused in

investigating and prosecuting the crime.” Cromer, 389 F.3d at 675. Under that inquiry, the

Sixth Circuit held that “statements of a confidential informant are testimonial in nature and

therefore may not be offered by the government to establish the guilt of an accused absent an

opportunity for the accused to cross-examine the informant.” Id. at 670-71.

However, “[t]estimony that does not reveal any specific statement made by a confidential

informant . . . and merely provides background information regarding the course of the

investigation does not violated the Confrontation Clause.” United States v. Pugh, No. 06-3521,

2008 WL 961564, * 5 (6th Cir. Apr. 9, 2008) (citing Cromer, 389 F.3d at 675; see also United

States v. Powers, 500 F.3d 500, 508 (6th Cir. 2007) (“[T]estimony provided merely by way of

background, or to explain simply why the Government began an investigation, is not offered for

the truth of the matter asserted and, therefore, does not violate a defendant’s Sixth Amendment

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rights.”) (internal quotation omitted).

Petitioner argues that Officer Pittman’s testimony contained testimonial hearsay that was

used to identify him as one of the drug-trafficking suspects, and that he had no opportunity to

cross-examine the informant.

In rejecting this claim in Petitioner’s Motion for Relief from Judgement, the state trial

judge found that any Confrontation-Clause error “was harmless in light of the overwhelming

evidence of Defendant’s [guilt].” Hudson, No. 02-183420-FC, at 3. Moreover, the trial judge

stated that, “because there is a reasonable probability that, had the issue been raised in

Defendant’s appeal, the Court of Appeals would have ruled as it did in his co-defendants’

appeals.” Id. at 3-4; See People v. Arias, No. 255428, 2006 WL 119143, at*1-3 (Mich. Ct. App.

Jan. 17, 2006); People v. Bonilla, No. 255426, 2006 WL 120366, at *5-7 (Mich. Ct. App. Jan.

17, 2006). In those cases, the Court of Appeals stated:

After carefully reviewing the exchange at issue, the record reveals that the

prosecutor only narrowly questioned Officer Pittman in order to set the stage for

Pittman’s later interactions with defendants. Pittman revealed that he considered

defendants “suspects” in drug activity and accordingly instituted further police

action resulting in the accumulation of evidence that ultimately resulted in

defendant’s arrest and later conviction. Pittman’s testimony did not involve the

considerations that led him to believe defendants were involved in a criminal

enterprise. Contrary to defendant’s assertion, one cannot infer from the

challenged testimony alone that defendants had committed any crime, but only

that defendants were persons of interest in an ongoing investigation. Thus, we

cannot conclude that defendant’s rights were violated because we agree with the

trial court’s conclusion that the challenged testimony served only as a backdrop

for later police interactions with defendants, was not offered to prove the truth of

the matter asserted, and for these reasons cannot be characterized as hearsay.

Arias, 2006 WL 119143, at *3; Bonilla, 2006 120366, at *6.

The confidential informant’s statements that the three persons matching the descriptions

of Petitioner and his co-defendants were not testimonial; they provided background information

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and an explanation as to why the investigation proceeded as it did. The testimony was clearly

limited in scope to show how the police selected Petitioner and his co-defendants as a suspects. 

The admission of the evidence did not violate the Confrontation Clause. Furthermore, the

government introduced enough evidence at trial to establish Petitioner’s guilt.

The trial court’s ruling is not contrary to, or an unreasonable application, clearly

established Supreme Court precedent. Moreover, the Court also agrees that, even if there was a

constitutional error, the error was harmless beyond a reasonable doubt, as stated by the trial court

in denying Petitioner’s Motion for Relief from Judgment.

Violations of the Confrontation Clause are subject to harmless error analysis. See, e.g.,

Chapman v. California, 386 U.S. 18, 22-23 (1967). Errors are “‘harmless’ in terms of their

effect on the [fact-finding] process at trial” where “the reviewing court may confidently say, on

the whole record, that the constitutional error was harmless beyond a reasonable doubt.” 

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). In such cases, an otherwise valid

conviction should not be set aside. Id.

Petitioner’s conviction did not depend upon the testimonial statements of the confidential

informant. Unlike the tenuous facts in Cromer, the government provided evidence, independent

of the confidential informant’s testimony, to establish that Petitioner was involved in the crime. 

Moreover, the trial court instructed the jury that, while there was “some testimony that the police

were targeting certain individuals[,] [] the mere fact [Petitioner] may have been [a] suspect is not

evidence of [his] guilt.” Trial Tr. vol. III, 99-100 Feb. 27, 2004. As discussed, sufficient

evidence was presented in this case for a rational trier of fact to conclude beyond a reasonable

doubt that Petitioner was guilty of possession of cocaine.

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If appellate counsel had included the issue on appeal, the inclusion of the issue probably

would not have changed the result of the appeal. Petitioner failed to show that his appellate

counsel was ineffective under the Strickland standard. Appellate counsel’s performance was not

unreasonable nor was his performance such that it prejudiced him so as to be outcome

determinative. He is not entitled to habeas relief.

E. Certificate of Appealability

The Court declines to issue a Certificate of Appealability (COA) to Petitioner. 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). “The district court must issue or deny a [COA]

when it enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule

11(a).

When a federal 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. McDaniel, 529

U.S. 473, 484-85 (2000); see also Miller-El v. Cockrell , 537 U.S. 322, 327 (2003) (citing Slack,

529 U.S. at 481). When a federal district court denies a habeas claim on procedural grounds

without addressing the claim’s merits, a COA should issue if it is shown 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. See Slack, 529 U.S. at 484-85 (2000).

The Court declines to issue Petitioner a COA; reasonable jurists would not find it

debatable whether this Court was correct in its rulings.

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However, in the event that Petitioner seeks an Application for Leave to Proceed On

Appeal In Forma Pauperis, the Court grants the Application. See Fed. R. App. P. 24(a)(1). An

appeal may not be taken in forma pauperis if the court determines that it is not taken in good

faith. 28 U.S.C. § 1915(a)(3). Although the Court declines to issue a COA, the Court cannot

certify that an appeal would not be taken in good faith. The Court will, therefore, grant

Petitioner such an Application.

IV. CONCLUSION

For the reasons stated, the Court: (1) DENIES Petitioner’s “Petition for Writ of Habeas

Corpus” [Dkt. # 1] with prejudice; (2) DECLINES to issue Petitioner a COA; and (3) GRANTS

Petitioner an Application for Leave to Proceed On Appeal In Forma Pauperis.

IT IS ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: May 16, 2012

The undersigned certifies that a copy of this

document was served on the attorneys of record

by electronic means or U.S. Mail on May 16,

2012.

s/Linda Vertriest 

Deputy Clerk

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