UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES SIMPSON,

Petitioner, 

v.

BLAINE LAFLER,

Respondent. 

 /

Case Number: 2:09-CV-11998

HON. GEORGE CARAM STEEH

OPINION AND ORDER DENYING PETITION FOR WRIT OF

HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner James Simpson filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254. Simpson is a state prisoner in the custody of the Michigan Department of

Corrections for convictions for second-degree murder, assault with intent to murder (two counts),

and possession of a firearm during the commission of a felony. He argues that his convictions

were obtained in violation of his constitutional rights because newly-discovered evidence (a

recanting witness affidavit) establishes his actual innocence and because a police lieutenant

committed perjury and knowingly presented a false statement allegedly made by Simpson. 

Respondent argues that the claims are meritless. The Court finds that habeas relief is not

warranted and denies the petition. 

I. Facts

Simpson’s convictions arise from a shooting that occurred in the City of Detroit on July

24, 1991, resulting in the death of Darryl Holcomb. Bryant Branch testified that shortly after

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midnight on that date, he was driving down Van Dyke Street when a car behind him repeatedly

flicked its bright lights on and off. At the next traffic light, the vehicle, which Branch identified

as a blue Ford Tempo, pulled alongside his vehicle. Someone from the blue vehicle, who Branch

identified as Simpson, fired five or six shots into Branch’s vehicle. Branch and his two

passengers, Darryl Holcomb and Tamara Berry, sustained gunshot wounds. Branch testified that

he attempted to drive his vehicle to a hospital, but was involved in a car accident on the way. At

that point, he noticed that Holcomb had been shot in the head. Police then came to the scene of

the accident and provided assistance. 

Thomas Hale testified that he was seated in the rear seat of Branch’s car on the night of

the shooting. He testified that he saw a red car pull up alongside Branch’s vehicle. He identified

Simpson as the shooter. 

Tamara Berry was seated in the rear of the vehicle. She testified that she was shot once in

her left shoulder. She did not see the shooter. 

Simpson offered an alibi defense. Alfred Miles testified that, on the night of the shooting, 

Simpson was with him at his house from approximately 10:00 p.m. until the following morning.

In rebuttal, City of Detroit Police Lieutenant Joan Ghougoian testified that she took a

statement from Simpson on September 6, 1991, in which Simpson admitted to being in the

vehicle that fired shots at Branch’s vehicle. She testified that Simpson refused to sign the

statement. 

II. Procedural History

Following a bench trial, Simpson was convicted in Wayne County Circuit Court of

second-degree murder, Mich. Comp. Laws § 750.317, two counts of assault with intent to

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commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm while committing a

felony, Mich. Comp. Laws § 750.227b. He was sentenced to twenty-five to forty years in prison

for the murder conviction, twenty to thirty-five years in prison for the assault convictions, and a

consecutive term of two years in prison for the felony-firearm conviction. The Michigan Court

of Appeals affirmed Simpson’s convictions. People v. Simpson, No. 155093 (Mich. Ct. App.

June 2, 1994). On November 30, 1994, the Michigan Supreme Court denied leave to appeal. See

People v. Simpson, No. 99893 (Mich. Nov. 30, 1994). 

In 1995, Simpson filed a motion for relief from judgment in the trial court. The trial

court denied the motion. Simpson moved for reconsideration, which the trial court denied on

June 30, 1995. Simpson did not appeal the trial court’s decision. 

On January 20, 1998, Simpson filed a second motion for relief from judgment. The trial

court denied the motion. Both Michigan appellate courts denied Simpson’s applications for

leave to appeal the trial court’s decision. People v. Simpson, No. 222311 (Mich. Ct. App. May 3,

2000); People v. Simpson, No. 117533 (Mich. Feb. 26, 2001). 

On August 13, 2001, Simpson filed a petition for a writ of habeas corpus in this Court. 

The District Court dismissed the petition with prejudice because the petition was time-barred. 

See Simpson v. Howes, No. 01-cv-10307 (E.D. Mich. June 10, 2002) (Lawson, J.). 

On August 10, 2005, Simpson filed a motion for relief from judgment in the trial court,

raising the claim that newly-discovered evidence showed that the only witness placing Simpson

at the scene of the crime had recanted his testimony. Simpson presented an affidavit from the

witness in support of this claim. The trial court denied leave to appeal. People v. Simpson, No.

91-010300-01-FC (Wayne County Circuit Ct. May 7, 2007). Simpson’s applications for leave to

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appeal were denied by the Michigan Court of Appeals, People v. Simpson, No. 280279 (Mich.

Ct. App. Dec. 17, 2007), and the Michigan Supreme Court, No. 135932 (Mich. Feb. 4, 2009). 

The Michigan Supreme Court denied a motion for reconsideration. People v. Simpson, No.

135932 (Mich. April 28, 2009). 

On May 5, 2009, Simpson filed another habeas corpus petition. This Court transferred

the petition to the Court of Appeals. On June 24, 2010, the Court of Appeals authorized the

filing of a second petition for writ of habeas corpus. The matter was returned to this Court and

Respondent ordered to file a responsive pleading. Respondent has filed a responsive pleading. 

Simpson seeks habeas relief on the grounds that witness Thomas Hale has recanted his trial

testimony and that Lieutenant Joan Ghougoian perjured herself by presenting a false statement

she claimed was made by Simpson. 

III. Standard

28 U.S.C. § 2254(d) provides:

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

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

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

adjudication of the claim –

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

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

Court of the United States; or

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

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

28 U.S.C. § 2254(d). 

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

that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of

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facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S.

12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he

‘unreasonable application’ prong of the statute permits a federal habeas court to ‘grant the writ if

the state court identifies the correct governing legal principle from [the Supreme] Court but

unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S.

510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court

find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s application must

have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also

Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 789 (2011), (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view that

habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a

substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 786-87 (internal quotation omitted). 

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether

the state court’s decision comports with clearly established federal law as determined by the

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Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. 

Section 2254(d) “does not require citation of [Supreme Court] cases – indeed, it does not even

require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the

state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the

principles of “clearly established law” are to be determined solely by resort to Supreme Court

rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness

of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007),

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

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

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

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

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

IV. Discussion

A. Hale Affidavit

Simpson argues that habeas relief should be granted on the basis of the affidavit of

Thomas Hale. Hale was a passenger in Branch’s vehicle on the night of the shooting. At trial,

Hale identified Simpson as the shooter. In the February 22, 2005 affidavit that forms the basis

for Simpson’s claim, Hale states that his trial testimony identifying Simpson as the shooter was

false. He states that he is “absolutely positive” that the person who fired the gun was not

Simpson. 

To the extent that Simpson presents Hale’s affidavit as a free-standing claim of actual

innocence, habeas relief is not warranted. The Supreme Court of the United States has never

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recognized a free-standing or substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844,

854 (6th Cir.2007), citing Zuern v. Tate, 336 F.3d 478, 482, n. 1 (6th Cir.2003), and Staley v.

Jones, 239 F.3d 769, 780, n. 12 (6th Cir. 2001). The Supreme Court has twice suggested that a

“truly persuasive demonstration” of actual innocence would render a petitioner’s execution

unconstitutional. Herrera v. Collins, 506 U.S. 390, 417 (1993); House v. Bell, 547 U.S. 518,

(2006). This is not a capital case. The Supreme Court has never held that a substantive actual

innocence claim is cognizable in habeas corpus. And, even if actual innocence, standing alone,

could be a basis for habeas corpus relief in a non-capital case, the affidavit presented here falls

far short of being a truly persuasive demonstration of factual innocence. 

The form of Hale’s affidavit is suspect. The affidavit is handwritten on a plain piece of

paper. The notary acknowledgment is on a separate piece of paper, which bears a law firm’s

letterhead. In the affidavit, Hale offers no explanation as to why he testified falsely in the first

place or why he decided to recant his testimony a decade after the trial. “Recanting affidavits and

witnesses are viewed with extreme suspicion by the courts.” Byrd v. Collins, 209 F.3d 486, 508

n.16 (6th Cir. 2000) (quotation omitted). See also Welsh v. Lafler, No. 10-1467, 444 F. App’x

844, 850 (6th Cir. 2011) (trial witness’s sworn recantation must be viewed with caution); Bower

v. Curtis, No. 03-1821, 118 F. App’x 901, 908 (6th Cir. Dec. 17, 2004) (“The recanting of trial

testimony by prosecution witnesses is typically viewed with the ‘utmost suspicion.’”) (internal

quotation omitted). Moreover, “[e]ven if accepted, a post-trial recantation is generally not

sufficient to grant habeas relief absent constitutional error.” Bower, 118 F. App’x at 908. 

Petitioner fails to corroborate Hale’s affidavit with other evidence of innocence. Standing alone,

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Hale’s affidavit hardly provides the kind of evidence sufficient to call into doubt Simpson’s

conviction.

B. Presentation of Allegedly Perjured Testimony

In his second claim, Petitioner argues that the prosecutor committed misconduct by

knowingly presenting false testimony by witnesses Hale and police officer Joan Ghougoian. 

“Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements

were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a

due process deprivation.” Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The

determination whether the trial was fundamentally unfair is “made by evaluating the totality of

the circumstances.” Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). The Court must examine

“<the fairness of the trial, not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117 F.3d

959, 964 (6th Cir. 1997), (quoting Serra v. Michigan Department of Corrections, 4 F.3d 1348,

1355 (6th Cir. 1993)). 

A false-testimony claim falls under the Brady disclosure doctrine, which requires the

government to disclose evidence favorable to a defendant if it is “material either to guilt or to

punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The “contours of [a false-testimony]

claim were predominantly shaped by two Supreme Court cases: Napue v. Illinois, 360 U.S. at

269–72, 79 S.Ct. 1173, and Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972).” Brooks v. Tenn., 626 F.3d 878, 894 (6th Cir. 2010). 

The Sixth Circuit has developed a three-part test for determining if the prosecution has

committed a Brady–Napue–Giglio violation:

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The knowing use of false or perjured testimony constitutes a denial of due process

if there is any reasonable likelihood that the false testimony could have affected

the judgment of the jury. In order to establish prosecutorial misconduct or denial

of due process, the defendants must show (1) the statement was actually false; (2)

the statement was material; and (3) the prosecution knew it was false. The

burden is on the defendants to show that the testimony was actually perjured, and

mere inconsistencies in testimony by government witnesses do not establish

knowing use of false testimony.

Id. at 894-95, quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998). 

A false statement is material under this standard, and “[a] new trial is required[,] if the

false testimony could in any reasonable likelihood have affected the judgment of the jury.” 

Giglio, 405 U.S. at 154, quoting Napue, 360 U.S. at 271. 

Simpson has not shown that Hale’s trial testimony was actually false. While the affidavit

contradicts Hale’s trial testimony, Simpson provides no arguable basis for finding the recanting

affidavit, executed approximately a decade after the trial under unknown circumstances, more

credible than Hale’s trial testimony. In addition, Simpson provides no evidence to support a

finding that the State presented Hale’s testimony knowing it was false. Hale’s affidavit, even if

accepted as true, shows only that Hale changed his testimony, not that the prosecutor knew the

trial testimony was false. 

Simpson also claims that the prosecutor improperly and knowingly presented the false

testimony of Lieutenant Joan Ghougoian. He claims she perjured herself when she testified, in

rebuttal, that Simpson admitted to being in the vehicle from which the fatal shots were fired. In

support of his claim that this testimony was false, Simpson points to newspaper articles and a

civil complaint regarding Ghougoian’s interrogation tactics and allegations that she committed

perjury in other, unrelated cases. The allegations against Ghougoian referenced in the articles

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and complaint are not specific to Simpson’s case. Therefore, he has failed to show that her trial

testimony was false. Habeas relief is denied on this claim. 

V. Certificate of Appealability

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

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

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

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

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

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

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

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

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

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

conclusion that the petition fails to state a claim upon which habeas corpus relief should be

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

VI. Conclusion

Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED

and the matter is DISMISSED WITH PREJUDICE.

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

Dated: November 28, 2012

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record and on

James Simpson #165015, Carson City Correctional Facility,

10522 Boyer Road, Carson City, MI 48811, on

November 28, 2012, by electronic and/or ordinary mail.

s/Barbara Radke

Deputy Clerk

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