1

As will be discussed, infra, Petitioner was resentenced in January 2008. The

stated sentences are a result of the resentencing.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY WARD,

Petitioner, Civil Action No. 2:09-cv-12669

v. HON. LAWRENCE P. ZATKOFF

THOMAS BIRKETT,

Respondent.

______________________/

OPINION AND ORDER DENYING

PETITION FOR A WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

BUT GRANTING PERMISSION FOR AN APPLICATION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. INTRODUCTION

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

Petitioner Anthony Ward is incarcerated by the Michigan Department of Corrections,

currently housed at the Central Michigan Correctional Facility in St. Louis, Michigan. He

is serving concurrent prison terms of eighty-one months to eighteen years for first-degree

criminal sexual conduct (CSC I) and eighty-one months to fifteen years for five counts of

second-degree criminal sexual conduct (CSC II).1

 Petitioner’s convictions occurred on

August 14, 2003, following a jury trial in the Circuit Court in Wayne County, Michigan. 

He was sentenced on September 12, 2003.

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On July 7, 2009, Petitioner filed his Habeas Petition, pro se, challenging the

constitutionality of his convictions. He also filed a Motion to Stay. He asked the Court

to stay his case because his appeal remained pending in the Michigan Supreme Court. 

Pet’r’s Mot. for Stay, July 7, 2009, ECF No. 3. The Court granted the Motion. Ward v.

Bell, No. 2:09-cv-12669, 2009 WL 2170172, at *2 (E.D. Mich. July 20, 2009).

After exhausting his state-court remedies, Petitioner returned to this Court, as

directed, and filed a Motion to Lift the Stay. Pet’r’s Mot. to Lift Stay, Nov. 19, 2009,

ECF No. 6. The Court granted the Motion, directed the Clerk of the Court to re-open the

case and serve a copy of the Amended Petition on Respondent. The Court also ordered

Respondent to file an Answer to the Amended Petition and the necessary Rule 5 materials

within six months from the date of its Order. Op. & Order Granting Mot., Mar. 11, 2010,

ECF No. 9. Subsequently, it was brought to the Court’s attention that Respondent was

never served with that Order. The Court then re-issued an Order, with one difference.

This time, the Court directed Respondent to file his Answer and the Rule 5 materials

within sixty days of its Order. Order Directing Serv., Mar. 31, 2011, ECF No. 22. 

Respondent complied. Resp’t’s Resp., July 29, 2011, ECF No. 31 & 32. The Court finds

that Petitioner’s case is now ripe for consideration.

After a review of the pleadings, the Court concludes that Petitioner’s convictions

and sentences are constitutionally sound. Therefore, the Court denies the Petition. The

Court also declines to issue Petitioner a Certificate of Appealability but will grant him

permission to file an Application for Leave to Proceed In Forma Pauperis on Appeal,

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Because the victims were minors, the Court refers to them by their initials.

3

should he choose to appeal the Court’s decision.

II. BACKGROUND

Petitioner’s troubles in this case stem from the sexual assault of his girlfriend’s

two daughters, K.W., eleven-years old, and J.W.,2

 thirteen-years old. At the time of the

incidents, Petitioner was living with the girls’ mother. Trial testimony revealed the

following pertinent facts.

K.W., who was diagnosed as a high-functioning-autistic child, testified that she

and her sister played games with Petitioner. Several times he asked her to rub his back

with lotion. She described one incident where he placed his penis on her buttocks and

moved it up and down; her clothes got wet. She told a friend and a teacher. Another

time, while in the bedroom, he told her to lie on her stomach; she felt his penis touching

her but never actually saw his penis.

J.W. testified that Petitioner repeatedly asked her to come into his room to talk

about sex and told her what to do if someone tried to have sex with her. She described an

incident where he also asked her to lie on the bed. He climbed on her back and rubbed

his groin against her buttocks. She said he exposed himself to her. She told her mother.

J.W. testified to an incident where Petitioner touched her vagina. He told her he

was looking for “hairs down there, and he was looking to see if I was ripped.” Trial Tr.

vol. I, 151 Aug. 12, 2003, ECF No. 32-2, 520. She also described an incident where he

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spread her vagina apart and rubbed his two fingers across. She told him she was scared

that he would do something to her. Petitioner touched his penis against her vagina and

told her that it was impossible for him to do anything to her because his penis would not

fit. He kept moving his penis against her until he left a “gooey” wet spot on her pants.

Trial Tr. vol. I, 159, ECF 32-2, 528.

Petitioner testified. He said he wrestled with the girls and that it was possible his

groin rubbed against them at times. Often, there was a glass of liquid nearby that would

spill onto them while they wrestled. He admitted that J.W. saw his penis once when he

was getting out of bed. He also admitted he asked her to remove her panties. He said he

spread her vagina open because he was looking to see if she had an infection or if she had

injured herself while inserting a tampon.

The jury found Petitioner guilty as charged. He was sentenced to nine to eighteen

years for the CSC I conviction and seven-and-one-half to fifteen years for each of the

CSC II convictions.

Following his sentencing, Petitioner filed an appeal with the Michigan Court of

Appeals, raising a single claim concerning the sufficiency of the evidence with respect to

his conviction for CSC I; he did not appeal his convictions for CSC II. The Court of

Appeals affirmed his convictions. People v. Ward, No. 251407, 2005 WL 473935 (Mich.

Ct. App. Mar. 1, 2005). Petitioner then filed an Application for Leave to Appeal the

Court of Appeals’s decision with the Michigan Supreme Court, raising the same claim.

The Application was denied on October 31, 2005. People v. Ward, 705 N.W.2d 133

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(Mich. 2005) (unpublished table decision).

Petitioner did not file a Petition for a Writ of Certiorari with the United States

Supreme Court. Rather, he filed a Motion for Relief from Judgment with the Wayne

County Circuit Court, raising a claim concerning newly-discovered evidence, a letter J.W.

wrote to him in prison, and claims concerning the effectiveness of trial and appellate

counsel. The trial court ordered the People to file a Response to Petitioner’s claim that

trial counsel was ineffective for failing to object to the correct scoring of his sentencing

guidelines and in failing to verify the Presentence Report as accurate. The People filed a

Response, conceding that the Presentence Report contained several incorrect assertions

and that Petitioner was entitled to an additional sixteen days credit on his sentence.

Subsequently, the trial court granted Petitioner’s request for resentencing but in all other

respects denied the Motion. People v. Ward, No. 03-006707-01 (3rd Cir. Ct. Wayne

Cnty. Sept. 20, 2007).

On January 30, 2008, Petitioner was resentenced to eighty-one months to eighteen

years for his CSC I conviction and eighty-one months to fifteen years for the five counts

of CSC II convictions.

Following, Petitioner filed an appeal from the trial court’s decision with the

Michigan Court of Appeals, arguing that he was entitled to resentencing because the

guidelines were scored inaccurately and the trial court failed to correct the errors in the

Presentence Report. The Court of Appeals affirmed but remanded for the correction of

his Sentencing-Information and Presentence Reports. People v. Ward, No. 284314, 2009

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WL 1360991, at *1, 4 (Mich. Ct. App. May 12, 2009). Petitioner filed an Application for

Leave to Appeal that decision with the Michigan Supreme Court, which was denied on

October 26, 2009. People v. Ward, 773 N.W.2d 681 (Mich. 2009) (unpublished table

decision).

Petitioner filed the pending Petition on July 7, 2009, raising all the claims raised

on direct review in the state-appellate courts and in his Motion for Relief from Judgment

with the trial court and subsequent appeals.

III. DISCUSSION

A. Standard of Review for Habeas Cases

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes

the following standard of review for habeas cases. Section 2254(d) states:

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

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

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

unless the adjudication of the claim–

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

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

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

of the facts in light of the evidence presented in the State court proceeding.

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 indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06

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(2000). An “unreasonable application” occurs when a state court has applied clearly

established federal law in an objectively unreasonable manner. Id. at 409. Therefore, a

federal-habeas court may not issue a writ if it concludes the state court applied clearly

established federal law merely erroneously or incorrectly. Id. at 411. The application

must be unreasonable. Id.

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, 559 U.S. 776, ---,

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, 562 U.S. ---, ---, 131 S.Ct. 770, 786 (2011) (citing

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

“[i]t bears repeating that even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Harrington, 131 S.Ct. at 786 (citation omitted).

Recently, the Sixth Circuit observed that “[t]his is a very high standard, which the

[Supreme] Court freely acknowledges.” Peak v. Webb, 673 F.3d 465, 472 (6th Cir.

2012). The Peak Court suggested that Harrington holds that the review standard “is even

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more constricted than AEDPA’s plain language already suggests.” Id. Thus, pursuant to

section 2254(d), “[a] habeas court must determine what arguments or theories supported

or . . . could have supported [] the state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. (internal

quotation omitted). The Court also recognizes that habeas review is “limited to the record

that was before the state court.” Cullen v. Pinholster, 563 U.S. ---, ---, 131 S.Ct. 1388,

1398 (2011).

With those standards in mind, the Court proceeds to address Petitioner’s claims.

B. Petitioner’s Claims

1. Insufficient-evidence claim

In his first habeas claim, Petitioner asserts that the evidence was insufficient to

support his conviction for CSC I. Respondent argues that the claim lacks merit. The

Court agrees with Respondent.

“[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). “Two layers of

deference apply to habeas claims challenging evidentiary sufficiency.” McGuire v. Ohio,

619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th

Cir. 2009)). First, the Court must determine whether “after viewing the evidence in the

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

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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original) (citation omitted); see also McKenzie v.

Smith, 326 F.3d 721, 727 (6th Cir. 2003) (same). “In doing so, [the Court does] not

reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment

for that of the jury. Brown, 567 F.3d at 205 (citation omitted). Second, if the Court were

“to conclude that a rational trier of fact could not have found a petitioner guilty beyond a

reasonable doubt, on habeas review, [the Court] must still defer to the state appellate

court’s sufficiency determination as long as it is not unreasonable.” Id. (emphasis in

original) (citing 28 U.S.C. § 2254(d)(2)). “[Section 2254(d)] gives habeas courts no

license to redetermine credibility of witnesses whose demeanor has been observed by the

state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983). “A

federal habeas court faced with a record of historical facts that supports conflicting

inferences must presume–even if it does not affirmatively appear in the record–that the

trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.” Jackson, 443 U.S. at 326; see also McKenzie, 326 F.3d at 727 (it is the

province of the fact finder to weigh the probative value of the evidence and resolve any

conflicts in testimony); see also Farley v. Lafler, 193 F. App’x 543, 548 (6th Cir. 2006)

(same). Further, “the [Jackson] standard must be applied ‘with explicit reference to the

substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S.

at 324 n.16.

Under Michigan law, CSC I involves acts of sexual penetration under the

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At the time of Petitioner’s conviction, the applicable statute was MCL

750.520a(o). It was amended effective July 1, 2008, as Michigan Compiles Laws

750.520a(r).

10

circumstances delineated by the statute, including acts with a person under thirteen years

of age. MCL 750.520b(1)(a). The statute defines “sexual penetration” as “sexual

intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,

of any part of a person’s body or of any object into the genital or anal openings of another

person’s body, but emission of semen is not required.” MCL 750.520a(r).3

The Michigan Court of Appeals, the last court to issue a reasoned decision with

respect to this issue, stated:

In reviewing a sufficiency of the evidence question, we view the

evidence in a light most favorable to the prosecution to determine whether a

rational trier of fact could conclude that the elements of the offense were

proven beyond a reasonable doubt. We do not interfere with the jury’s role

of determining the weight of the evidence or the credibility of witnesses. A

trier of fact may make reasonable inferences from direct or circumstantial 

evidence in the record.

* * *

Defendant argues that insufficient evidence was produced to support

his conviction of CSC I. We disagree and affirm. The testimony of a

sexual assault complainant need not be corroborated by other evidence,

MCL 750.520h, and the jury was entitled to accept complainant’s testimony

as credible. Complainant’s testimony supported an inference that

defendant’s thumbs penetrated her vagina. Slight penetration is sufficient

to support a conviction of CSC I. The evidence, viewed in a light most

favorable to the prosecution, was sufficient to support defendant’s

conviction of CSC I.

Ward, 2005 WL 473935, at *1 (footnote and citations omitted).

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Although not specifically citing Jackson, it is clear that the Court of Appeals

reviewed this claim using that standard. A review of the record supports its decision. 

The jury heard the testimony of J.W. and Petitioner and was able to access the credibility

of both witnesses in order to make its determination. Further, the Court notes, as did the

Court of Appeals, that a victim’s testimony alone can be constitutionally sufficient to

sustain a conviction. See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing

cases); O’Hara v. Brigano, 499 F.3d 492, 500 (6th Cir. 2007) (victim’s testimony

sufficient even though not corroborated by witnesses or physical evidence).

With that, the Court concludes that the Court of Appeals did not unreasonably

apply the Jackson standard. The prosecution presented sufficient evidence for the jury to

conclude beyond a reasonable doubt that Petitioner was guilty of CSC I with respect to

J.W. Habeas relief is not warranted.

2. Ineffective-assistance-of-counsel claims

In claims two through seven, Petitioner alleges that trial counsel was ineffective in

various ways. He raised the majority of these claims for the first time when he filed his

Motion for Relief from Judgment with the state trial court. Thus, Respondent argues that

some of the claims are either unexhausted or procedurally defaulted.

First, even assuming that Petitioner has not properly exhausted all of his habeas

claims in the state courts, the Court declines to dismiss the Petition on such a basis. 

While the exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite

for bringing a habeas petition. See Granberry v. Greer, 481 U.S. 129, 134-35 (1987);

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Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). For example, an unexhausted

claim may be addressed if pursuit of a state-court remedy would be futile, see Witzke v.

Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is

meritless such that addressing it would be efficient and not offend federal-state comity.

See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2)

(habeas petition may be denied on the merits despite the failure to exhaust state-court

remedies). Such is the case here. Because Petitioner has already filed a Motion for Relief

from Judgment with the state-trial court, pursuit of his unexhausted claims in state court

would be futile for him. See MCL 6.502(G) (prohibiting a defendant from filing a second

motion for relief from judgment unless there is a retroactive change in the law that

occurred after the filing of the first or a claim of new evidence that was not discovered

before the first such motion).

Second, as to any procedural default, it is well-settled that federal courts on habeas

review are not required to address a procedural-default issue before deciding against the

petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial

economy might counsel giving the [other] question priority, for example, if it were easily

resolvable against the habeas petitioner, whereas the procedural-bar issue involved

complicated issues of state law.” Id. at 525. In this case, the substantive issues are easier

to resolve.

Accordingly, the Court shall proceed to address the merits of Petitioner’s

ineffective-assistance-of-counsel claims.

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a. Strickland standard

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

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

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

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

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

Strickland, 466 U.S. at 687. Second, the petitioner must establish that counsel’s deficient

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

deprived the petitioner of a fair trial or appeal. Id.

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

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

performance. Strickland, 466 U.S. at 690. The reviewing court’s scrutiny of counsel’s

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

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Id. at 690. Petitioner bears the burden of overcoming

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

To satisfy the prejudice prong under Strickland, Petitioner must show that “there is

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

proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable

probability is one that is sufficient to undermine confidence in the outcome. Id. “On

balance, the benchmark for judging any claim of ineffectiveness must be whether

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counsel’s conduct so undermined the proper functioning of the adversarial process that

the [proceeding] cannot be relied on as having produced a just result.” Id. at 686.

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

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

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

courts reviewing their performance. “The standards created by Strickland and [section]

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

‘doubly’ so.” Harrington, 131 S.Ct. at 788 (internal and end citations omitted). “When

[section] 2254(d) applies, the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard. Id.

b. Counsel’s failure to advance a medical-diagnosis defense

In his second habeas claim, Petitioner argues that counsel was ineffective for

failing to advance a medical-diagnosis defense to the CSC I charge. The Michigan Court

of Appeals addressed this claim, stating:

Defendant testified that he examined victim one’s vagina for injury, but that

he did not touch her, instead motioning with his thumbs for her to open her

vagina. An element of the offense of first-degree criminal sexual conduct is

that it be sexual penetration, and clearly penetration for legitimate medical

purposes is not sexual penetration. Defense counsel did not argue that the

touching was for medical purposes, but instead argued that there was no

penetration. Again, “this Court will not substitute its judgment for that of

counsel in matters of trial strategy, nor will it assess counsel’s competence

with the benefit of hindsight.” Further, defendant cannot establish that he

was prejudiced by the failure to make this argument where he made the

argument himself during his testimony. The trial court did not err in finding

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that defendant failed to establish ineffective assistance of counsel.

Ward, 2009 WL 1360991, at *3 (citations omitted).

The Court finds that the Court of Appeals’s decision is neither contrary to nor an

unreasonable application of Strickland. Petitioner has not established that counsel erred

or that he was prejudiced by counsel’s conduct. Counsel’s decision to argue that there

was no penetration in regard to J.W. was a matter of trial strategy. The fact that counsel’s

strategy was ultimately unsuccessful does not mean that counsel was ineffective. See

Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (ineffective-assistance-of-counsel

claim cannot survive so long as the decisions of a defendant’s trial counsel were

reasonable even if mistaken). Thus, Petitioner has failed to meet his burden under the

Strickland standard and habeas relief is not warranted.

c. Counsel’s failure to file pretrial motions to

amend the information and exclude similar-acts evidence

In his third claim, Petitioner claims that counsel was ineffective for failing to file a

pretrial motion to amend the information to comply with the time frame to which the

victims testified at the preliminary examination.

With respect to this claim, the trial court clearly denied relief under Strickland,

though not specifically citing the case. The trial court determined that state law did not

require the specification of an exact time in the information and that the time was not a

material element in a CSC case, especially when the victim is a child. Ward, No. 03-

006707-01, at 8-9. In regard to defense counsel failing to move to exclude other-acts

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evidence, the trial court found that the other-acts evidence in the case was admissible

under Michigan’s Rules of Evidence in order to show a plan or system in committing the

sexual acts and absence of mistake or accident. Id.

Because the trial court found that the information in this case was sufficient and

that other-acts evidence would have been admissible, its finding that trial counsel was not

constitutionally deficient was not unreasonable. Counsel cannot be deemed ineffective

for failing to raise meritless objections. See Walls v. Romanowski, No. 2:-6-CV-14203, 

2013 WL 210735, at *7 (E.D. Mich. Jan. 18, 2013) (Tarnow, J.). Accordingly, Petitioner

is not entitled to habeas relief on this claim.

d. Counsel’s failure to object to

prosecutor’s conduct during closing argument

In this claim, Petitioner argues that counsel was ineffective for failing to object to

the prosecutor’s conduct during closing argument, stating specifically that she referred to

facts not in evidence, made knowingly false statements, improperly vouched for K.W.,

and made improper argument to elicit sympathy for her. Before deciding whether counsel

was ineffective in this regard, the Court must first decide whether the prosecutor’s

conduct was improper.

The United States Supreme Court has stated that prosecutors must “refrain from

improper methods calculated to produce a wrongful conviction.” Berger v. United States,

295 U.S. 78, 88 (1935). However, “[c]laims of prosecutorial misconduct are reviewed

deferentially on habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)

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(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). Prosecutorial misconduct

will form the basis for a new trial and habeas relief only if the alleged misconduct “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); see also Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (same). “[T]o constitute the denial of a fair trial,”

the misconduct must be “so pronounced and persistent that it permeates the entire

atmosphere of the trial.” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citations

and internal quotes omitted); Byrd v. Collins, 209 F.3d 486, 529-30 (6th Cir. 2000)

(same). “The Court must examine the fairness of the trial, not the culpability of the

prosecutor.” Pritchett, 117 F.3d at 964 (citations and internal quotes omitted); see also

Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993) (same).

When analyzing a claim of prosecutorial misconduct, a court must initially decide

whether the challenged statements were improper. Slagle v. Bagley, 457 F.3d 501, 515-

16 (6th Cir. 2006). If the conduct is improper, the district court must then examine

whether the statements or remarks are so flagrant as to constitute a denial of due process

and warrant granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case,

consideration should be given to the degree to which the challenged remarks had a

tendency to mislead the jury and to prejudice the accused, whether they were isolated or

extensive, whether they were deliberately or accidentally placed before the jury, and,

except in the sentencing phase of a capital murder case, the strength of the competent

proof against the accused. Serra, 4 F.3d at 1355-56.

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The Michigan Court of Appeals rejected Petitioner’s claim as follows:

Prosecutors may not make statements that are not supported by the

facts in evidence, but may make arguments based on the evidence and

reasonable inferences that arise from the evidence. Although there were

instances where the prosecutor misstated the facts in evidence, the

misstatements were minor and no instance was so prejudicial to defendant

that it was not cured by the trial court’s instruction that the prosecution’s

argument was not evidence. Because the prosecutor’s misstatements of the

facts were not prejudicial, defendant was not prejudiced by his counsel’s

failure to object to the alleged prosecutorial misconduct.

Ward, 2009 WL 1360991, at *3 (citations omitted).

When addressing this claim in Petitioner’s Motion for Relief from Judgment, the

trial court also found his argument without merit:

Although the prosecuting attorney did at times confuse [K.W.’s] testimony

with [J.W.’s] testimony during her closing argument, there is no evidence

that this was a deliberate attempt to “skew the evidence more in favor” as

alleged by Defendant. The prosecutor properly argued logical inferences

from the presented evidence. Also, the Court instructed the jurors that they

must decide the case on the evidence and not let sympathy or prejudice

influence their decision and that the remarks of counsel were not evidence.

These instructions were sufficient to eliminate any prejudice that might

have resulted from the prosecutor’s remarks. Therefore, Defendant has

failed to demonstrate prejudice from trial counsel’s failure to object to the

prosecutor’s comments during closing argument.

Ward, No. 03-006707-01, at 10-11 (citations omitted).

These decisions are neither contrary to nor an unreasonable application of the

Donnelly/Darden standards.

First, while the prosecutor appears to have confused some testimony, erroneously

stating that K.W. testified that Petitioner’s pants were wet [Trial Tr. vol. II, 70, ECF No.

32-3, 605], the prosecutor’s comments were brief and isolated. With respect to that

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comment, trial counsel may have reasonably decided to not draw attention to the 

comment or may have reasonably relied on the trial court’s instructions to the jury to cure

any misstatement by the prosecutor.

Second, the prosecutor’s statement that K.W.’s testimony was corroborated by

J.W. was a proper and reasonable argument to make in light of the evidence presented.

Prosecutors “must be given leeway to argue reasonable inferences from the evidence.”

United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996). The prosecutor was not

improperly bolstering K.W.’s testimony. Rather, she was arguing “reasonable inferences

from the evidence.” Id.

Third, the prosecutor did not improperly elicit sympathy for K.W. Rather, K.W.’s

mother testified that she was autistic and the prosecutor simply referenced that in her

closing and reasonably argued that perhaps that was the reason that Petitioner had

targeted her. Moreover, the trial court instructed the jury that they must not “let

sympathy or prejudice influence” their decision. Trial Tr. vol. II, 81, ECF No. 32-2, 616. 

“A jury is presumed to follow [the trial court’s] instructions.” Weeks v. Angelone, 528

U.S. 225, 234 (2000). Thus, the Court finds that Petitioner has failed to show prejudice

from trial counsel’s failure to object to this portion of the prosecutor’s argument.

Additionally, the prosecutor’s statement that K.W., instead J.W., said that she did

not tell anyone because she did not want to get whipped was an inadvertent misstatement

that was brief and isolated. In light of the trial court’s instructions to the jury, that an

attorney’s arguments are not evidence, Petitioner again fails to demonstrate deficient

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performance or prejudice from counsel’s failure to object.

Finally, Petitioner has failed to show that the prosecutor was improperly vouching.

The record reveals that she was making appropriate argument on the basis of the evidence

that was presented.

 Thus, because Petitioner cannot show that the prosecutor’s conduct was improper,

trial counsel cannot be deemed deficient for failing to make futile objections or motions.

See, e.g., Steverson, 230 F.3d at 225.

Having reviewed the record and, given the significant evidence of Petitioner’s guilt

presented at trial, the Court finds that he has failed to establish that trial counsel was

ineffective under the Strickland standard. Habeas relief is not warranted on these claims.

e. Counsel’s failure to cross-examine, impeach, and recall the victims’ mother

In claim five, Petitioner argues that the trial counsel was ineffective for failing to

effectively cross-examine, impeach, and recall on rebuttal the victims’ mother. Decisions

as to what evidence to present and whether to call certain witnesses are presumed to be a

matter of trial strategy, and the failure to call witnesses or present other evidence

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

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

also Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002) (Friedman, J.)

(impeachment strategy is a matter of trial tactics and such decisions are not ineffective

assistance of counsel because in retrospect better tactics may have been available).

In addressing and denying this claim in Petitioner’s Motion for Relief from

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Judgment, the trial court stated:

The Court finds that Defendant’s arguments fail because Defendant was

aware of and could have testified to each of these alleged facts at trial, yet,

he failed to do so despite being allowed to testify in a narrative fashion.

Further, as stated previously, time is not a material element in a criminal

sexual conduct case involving a child.

Ward, No. 03-006707-01, at 7 (citation omitted).

According to Petitioner, counsel should have introduced his work record to

impeach the mother’s credibility as to how much time he spent at home with the girls. He

also argues that counsel should have recalled her to impeach the girls’ testimony about

the actual times of the incidents. However, the record reveals that trial counsel

thoroughly cross-examined the mother, getting her to testify that Petitioner wrestled with

the girls and that she never noticed any abnormal behavior on the part of the girls. Trial

Tr. vol. I, 109, ECF No. 32-2, 478-79. Counsel even got her to acknowledge that the

relationship between Petitioner and the girls was normal and healthy. Id.

As stated by the trial court, Petitioner could have testified himself to each of these

areas, yet he failed to do so. Thus, the Court finds that the trial court’s decision is neither

contrary to nor an unreasonable application of the Strickland standard. Habeas relief in

not warranted.

f. Counsel’s failure to impeach J.W.

Petitioner also claims that counsel was ineffective for failing to impeach J.W.’s

credibility with her prior testimony and police statements.

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With respect to this issue, both the trial court and the Court of Appeals found that,

although there might have been some minor discrepancies regarding the events, Petitioner

did not suffer prejudice because, as the Court of Appeals and the trial court stated, in

criminal-sexual-conduct cases involving minor children, time is not of the essence nor is

it a material element of the offense. Ward, 2009 WL 1360991, at *2 (citations omitted);

Ward, No. 03-006707-01, at 6-7 (citations omitted).

As noted, impeachment tactics are a matter of trial strategy, which is entitled to

deference. Dell, 194 F. Supp. 2d at 651. The Court does not believe that the result of the

proceeding would have been different if defense counsel had persisted in pointing out

these inconsistencies in the testimony. Habeas relief is not warranted on this claim.

g. Counsel’s ineffectiveness during closing argument

In his seventh habeas claim, Petitioner argues that counsel was ineffective for

failing to address the CSC II charges and ask for a lesser-included instruction on CSC I

during closing argument.

The Court of Appeals addressed this claim, stating:

Although brief, counsel noted in his closing that defendant denied all of the

charges and that the case hung on the credibility of the witnesses and then

specifically addressed the first-degree criminal sexual conduct charge.

“This Court will not substitute its judgment for that of counsel in matters of

trial strategy, nor will it assess counsel’s competence with the benefit of

hindsight.” Defendant has not established that counsel’s performance fell

below an objective standard of reasonableness or that he was prejudiced by

the closing argument.

Ward, 2009 WL 1360991, at *3 (citations omitted).

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The trial court likewise found this claim without merit:

Here, trial counsel did not concede Defendant’s guilt, but stressed to the

jury that the only act of first-degree CSC charged was the act involving

Defendant inspecting [J.W.’s] genital area, and not another [J.W.] testified

about. Trial counsel stated that, if the jury believed the complainant that

Defendant did touch [J.W.] as described, Defendant was guilty of only

second-degree CSC, and not first-degree CSC as charged. Counsel further

stated that the case was a credibility contest between the girls and

Defendant and that Defendant maintained his innocence. (TT II, pp 76-79). 

Therefore, trial counsel was not ineffective.

Ward, No. 03-006707-01, at 11, ECF No. 32-11.

The Court finds that the state courts’ decisions were reasonable. Counsel’s

strategy may have been to argue that Petitioner was guilty of CSC II, the lesser charge,

with respect to J.W., as opposed to CSC I. Although counsel’s strategy may have been a

“walking-on-the-border technique,” it did not amount to a violation of the Sixth

Amendment right to the effective assistance of counsel. Conceding guilt as a strategy for

avoiding conviction of a greater offense is not generally considered ineffective assistance

of counsel. See Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (concession by

defense counsel that petitioner was guilty of murder but not guilty of aggravated murder

did not amount to ineffective assistance of counsel). Defense counsel’s strategy was

reasonable in light of the significant evidence against Petitioner, and therefore, the Court

concludes that counsel’s strategy did not fall below an “objective standard of

reasonableness.” Strickland, 466 U.S. at 688. It is “[r]are” that constitutionally 

competent representation will require “any one technique or approach.” Harrington, 131

S.Ct. at 779. Accordingly, Petitioner is not entitled to relief on this claim.

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h. Counsel failed to object to the scoring of Petitioner’s sentencing guidelines

In his eighth habeas claim, Petitioner alleges that trial counsel was ineffective for

failing to object to the correct scoring of his sentencing guidelines and in failing to verify

the Presentence Report as accurate. As noted, supra, Petitioner raised this claim in his

Motion for Relief from Judgment. The trial court requested the People to file an Answer

to Petitioner’s claim. In its Answer, the State conceded that there were errors at

sentencing which affected Petitioner’s sentence. Specifically, the State conceded that the

Presentence Report contained several incorrect assertions and that Petitioner was entitled

to an additional sixteen days credit on his sentence. The trial subsequently granted

Petitioner relief and he was resentenced. Following his appeal, the Court of Appeals

remanded the matter for correction of the inaccuracies in the Sentencing-Information

Report and the corrections of errors in his Presentence Report. Thus, because Petitioner

was granted relief, this claim is now moot.

However, to the extent that Petitioner is still challenging the scoring of his

guidelines, the claim is non-cognizable on habeas review. An argument based on a

perceived error or alleged violation of state law fails to state a claim on which habeas

relief may be granted. Pulley v. Harris, 465 U.S. 37, 41 (1984); Austin v. Jackson, 213

F.3d 298, 300 (6th Cir. 2000). Any error by the trial court in calculating his guideline

score or in departing above his sentencing-guidelines range alone would not merit habeas

relief. Id.

3. Actual-innocence claim

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In his ninth habeas claim, Petitioner alleges that the trial court erred in failing to

remand his case for a new trial on the basis of newly-discovered evidence that the victims

testified falsely. The evidence Petitioner refers to is a letter written to him in prison from

J.W., in which she states “I’m really sorry you got put in jail. I was not the one who told

it was [K.W.], but you did not even do that stuff to use (sic) in the first place.” See

Pet’r’s Mot. for Relief from J., ECF No. 32-9, 821. Petitioner appears to be arguing that

the letter suggests that he is actually innocent.

In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that

claims of actual innocence based on newly-discovered evidence fail to state a claim for

federal-habeas relief absent an independent constitutional violation occurring in the

underlying state-criminal proceeding. See also Cress v. Palmer, 484 F.3d 844, 854-55

(6th Cir. 2007) (citing cases); see also House v. Bell, 547 U.S. 518 (2006) (same). 

Federal-habeas courts sit to ensure that individuals are not imprisoned in violation of the 

constitution, not to correct errors of fact. Id.; see also Hence v. Smith, 37 F. Supp. 2d

970, 980 (E.D. Mich. 1999) (Gadola, J.) (same).

Further, the state trial court and the Court of Appeals both denied this claim,

finding that J.W.’s letter was insufficient to make a different result at trial probable.

Ward, 03-006707-01, at 4-5; Ward, 2009 WL 1360991, at *3-4.

Accordingly, Petitioner is not entitled to habeas relief on this claim.

4. Challenges to the Michigan Parole Board denying Petitioner parole

In his Amended Habeas Petition, Petitioner appears to allege that the Michigan

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Parole Board erred in denying him parole. Here, Petitioner fails to raise a claim of

constitutional magnitude because he has no liberty interest in being released on parole.

Prisoners do not have a constitutional right to be conditionally released before the

expiration of a valid sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

442 U.S. 1, 7 (1979); see also Board of Pardons v. Allen, 482 U.S. 369, 377 n.8 (1987)

(same). Quite simply, there is no federal constitutional right to parole. Lee v. Withrow,

76 F. Supp. 2d 789, 792 (E.D. Mich. 1999) (Duggan, J.).

With that, the Court concludes that Petitioner is not entitled to habeas relief.

C. Certificate of Appealability

Before Petitioner may appeal this Court’s decision, a Certificate of Appealability

must be issued. Federal Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a Certificate of Appealability is issued under 28 U.S.C. § 2253. Rule 11

of the Rules Governing Section 2254 Proceedings, which was amended as of December

1, 2009, requires that a district court must “issue or deny a [Certificate of Appealability]

when it enters a final order adverse to the applicant . . . . If the court issues a

[C]ertificate, the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2254

Proceedings.

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).

Courts must either issue a Certificate of Appealability indicating which issues satisfy the

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required showing or provide reasons why such a Certificate should not be issued.

28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b). To receive a Certificate of Appealability

“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.” Miller-El, 537

U.S. at 336 (internal quotes and citations omitted).

For the reasons stated in its Opinion and Order, the Court concludes that

reasonable jurists would not find its assessment of Petitioner’s claims debatable or wrong.

The Court therefore declines to issue Petitioner a Certificate of Appealability.

Although the Court declines to issue Petitioner a Certificate of Appealability, the

standard for granting an Application for Leave to Proceed In Forma Pauperis is a lower

standard than the standard for Certificates of Appealability. See Foster v. Ludwick, 208

F. Supp. 2d 750, 764 (E.D. Mich. 2002) (Rosen, J.) (citation omitted). Where a

Certificate of Appealability may only be granted if a petitioner makes a substantial

showing of the denial of a constitutional right, a court may grant in forma pauperis

status if it finds that an Appeal is being taken in good faith. Id. at 764-65; 28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a). “Good faith” requires a showing that the issues

raised are not frivolous; it does not require a showing of probable success on the merits. 

Foster, 208 F. Supp. 2d at 765.

The Court concludes that an Appeal could be taken in good faith and Petitioner

may proceed in forma pauperis on appeal. Also, because Petitioner was granted in

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forma pauperis status in this Court, he may proceed on appeal without further

authorization. Fed. R. App. P. 24(a)(3).

IV. CONCLUSION

Accordingly, IT IS ORDERED that the “Petition for Writ of Habeas Corpus”

[ECF No. 1] is DENIED.

IT IS FURTHER ORDERED that the Court declines to issue Petitioner a

Certificate of Appealability but will GRANT him permission for an Application for

Leave to Proceed In Forma Pauperis On Appeal.

s/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

DATED: March 28, 2013

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