1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

GREGORY BROWN,

Petitioner, CASE NO. 5:09-CV-12937

 HONORABLE JOHN CORBETT O'MEARA

v. UNITED STATES DISTRICT JUDGE

HUGH WOLFENBARGER, 

Respondent.

_____________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

Gregory Brown, a state inmate, filed this habeas case under 28 U.S.C. § 2254. Petitioner

was convicted after a jury trial in the Wayne Circuit Court of second-degree murder, MICH. COMP.

LAW 750.317, felon in possession of a firearm, MICH. COMP. LAW 750.224f, and possession of a

firearm during the commission of a felony. MICH. COMP. LAW 750.227b. For the reasons which

follow, the petition will be denied.

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals,

which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.

Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the shooting death of Carl Harris.

Defendant was originally tried for these offenses in October 2002, but the trial ended

in a mistrial.

Defendant gave a statement to the police in which he admitted that he shot

Harris while Harris was buying drugs from him, but claimed that he did so in

self-defense. Defendant also told the police that his cousin, Dion Monette, was

selling drugs with him, but that Monette was asleep during the altercation. Defendant

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 1 of 17 Pg ID 1826
2

testified at his 2002 trial that he shot Harris in self-defense after Harris pulled a gun

on him during a drug sale. When defendant was retried for the offenses in 2003, the

prosecutor read his testimony from the 2002 trial into evidence. Defendant testified

at his second trial, giving substantially the same testimony as that given at the first

trial.

People v. Wordlaw-Brown, 2005 Mich. App. LEXIS 1089, *1-2 (Mich. Ct. App. May 5, 2005).

Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan

Court of Appeals, raising the following claims:

I. The prosecutor and the trial court denied Petitioner a fair trial when the prosecutor

was allowed to present Petitioner's testimony from the prior trial without advising

defense counsel until mid-trial that it was his intent to use the testimony and where

the prosecutor failed to establish good cause for the late endorsement.

II. The trial court reversibly erred and Petitioner was denied the right to have a

properly instructed jury consider all of the evidence where the court incorrectly

failed to read the jury instruction on voluntary manslaughter and counsel was

ineffective in failing to object.

Petitioner also filed a pro se supplemental brief, raising the following claim:

III. The trial court reversibly erred by admitting [Petitioner's] statement into evidence

after it was obtained from a warrantless, illegal arrest, making it the fruit of the

poisonous tree.

The Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id.

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

which raised the same claims. The Michigan Supreme Court denied the application in a standard

order. People v. Warlaw-Brown, 474 Mich. 908; 705 N.W.2d 133 (2005). 

Petitioner returned to the trial court and filed a motion for relief from judgment, raising the

following claims:

I. Petitioner was denied the effective assistance of trial counsel under the Sixth

Amendment where counsel:

1. Failed to investigate and challenge the validity of Petitioner's arrest

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 2 of 17 Pg ID 1827
3

and move to suppress his confession made to police while in unlawful

custody;

2. Failed to investigate whether the circuit court properly acquired

jurisdiction before proceeding with the case;

3. Failed to protect Petitioner's rights to due process of law and to a

fair trial under the 14th Amendment.

II. The circuit court did not at any time acquire jurisdiction over Petitioner on the

charges of first-degree murder . . . felony firearm . . . felon in possession of a firearm

. . . where no return was filed by the examining magistrate, therefore, Petitioner's

rights under the Due Process Clause of the 14th Amendment and under Article 1,

Section 17 of the Michigan and federal constitutions were violated.

III. Petitioner was denied the effective assistance of appellate counsel on direct

appeal for counsel's failure to raise the issues in his motion for relief from judgment,

after he had urged counsel to raise those claims on direct appeal.

IV. Petitioner demonstrates both good cause and actual prejudice stemming from the

irregularities that support his claim for relief in this post appeal proceeding.

The trial court denied the motion, stating that, "defendant has failed to demonstrate prejudice

from the errors he alleges. Defendant has also failed to demonstrate that his trial and appellate

counsel were ineffective or that he had good cause for failing to previously raise these issues in

propria persona." Trial Court Opinion, at 8-9.

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The

application was denied "because defendant has failed to meet the burden of establishing entitlement

to relief under Michigan Court Rule 6.508(D)." People v. Warlaw-Brown, No. 283276 (Mich. Ct.

App. August 22, 2008)). Petitioner applied for leave to appeal this decision in the Michigan

Supreme Court, but it was also denied under Rule 6.508(D). People v. Warlaw-Brown, 483 Mich.

1016, 765 N.W.2d 324 (2009).

Petitioner's application for a writ of habeas corpus raises all the claims he presented to the

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 3 of 17 Pg ID 1828
4

state courts in his appeal by right and collateral attack, and he raises an additional claim that the trial

court violated state law by failing to date its order denying his motion for relief from judgment.

 II. Analysis

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). The AEDPA

provides:

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

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

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim —

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

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

of the United States; or

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

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

28 U.S.C. § 2254(d).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that

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

are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he 'unreasonable application' prong

of the statute permits a federal habeas court to 'grant the writ if the state court identifies the correct

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

facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S.

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 4 of 17 Pg ID 1829
5

at 413). However, "[i]n order for a federal court find a state court's application of [Supreme Court]

precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous.

The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at

520-21 (citations omitted); see also Williams, 529 U.S. at 409. "A state court's determination that

a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on

the correctness of the state court's decision." Harrington v. Richter, U.S. , 131 S. Ct. 770, 789,

178 L. Ed. 2d 624 (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 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

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 5 of 17 Pg ID 1830
6

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).

B. Petitioner's Prior Testimony

Petitioner first claims that the trial court erred when it allowed admission of his prior trial

testimony. Specifically, Petitioner contends that the prosecutor failed to notify the defense thirty

days before trial that he intended to use the prior testimony as required by Michigan Compiled Laws

767.40a. Respondent asserts that the claim is procedurally barred from review because Petitioner

did not object to the introduction of his prior testimony on this basis at trial. 

The Michigan Court of Appeals denied the claim as follows: 

Defendant claims that the trial court erred in admitting his prior testimony

because the prosecutor did not timely endorse him as a prosecution witness pursuant

to Mich. Comp. Laws 767.40a. At trial, defendant objected to the testimony only on

the ground that it violated his Fifth Amendment privilege against compelled

self-incrimination. Because defendant did not identify Mich. Comp. Laws 767.40a

as a ground for his objection at trial, this issue is not preserved. Mich. Rule Evid.

103(a)(1); People v. Aldrich, 246 Mich. App. 101, 116; 631 N.W.2d 67 (2002). We

review unpreserved evidentiary claims for plain error affecting substantial rights.

People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Houston,

261 Mich. App. 463, 466; 683 N.W.2d 192 (2004), lv gtd in part on other grounds

471 Mich. 913 (11/4/2004).

Defendant's testimony was admissible under Mich. Rules Evid. 801(d)(2),

which exempts a party-opponent's own admissions from the definition of hearsay.

This Court held in People v. Thompson, 97 Mich. App. 319, 322-323; 293 N.W.2d

812 (1980), that a defendant's testimony from a previous trial is admissible unless the

defendant was "impelled" to testify because of a trial error, such as improperly

admitted evidence.

Mich. Comp. Laws 767.40a requires the prosecutor to notify the defendant

thirty days before trial of all witnesses the prosecutor intends to produce at trial; the

prosecutor may later add witnesses upon leave of the court for good cause shown or

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 6 of 17 Pg ID 1831
7

by stipulation of the parties. People v. Callon, 256 Mich. App. 312, 326; 662 N.W.2d

501 (2003). To determine whether this requirement applies to defendant's prior

testimony, we interpret the statute's clear and unambiguous language as written.

People v. Venticinque, 459 Mich. 90, 99-100; 586 N.W.2d 732 (1998). The statutory

requirement of prior notice applies to "witnesses the prosecuting attorney intends to

produce at trial." Mich. Comp. Laws 767.40a(3). Here, defendant was not a witness

who the prosecutor produced at trial. He was a party-opponent, whose prior

statements could be admitted pursuant to Mich. Rules Evid. 801(d)(2). Because the

clear and unambiguous language of Mich. Comp. Laws 767.40a precludes its

application in this context, there was no plain error affecting defendant's substantial

rights.

Warlaw-Brown, 2005 Mich. App. LEXIS 1089, *2-4.

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

state courts in accordance with the state's procedural rules. Wainwright v. Sykes, 433 U.S. 72,

85-87(1977). Such a procedural default occurs when a petitioner fails to comply with a state

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

independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005). Procedural default may be

excused where the petitioner demonstrates cause and prejudice for his failure to comply with the

state procedural rule, or when a petitioner establishes that failing to review the claim would result

in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Combs

v. Coyle, 205 F.3d 269, 274 (6th Cir. 2000). To demonstrate that a "fundamental miscarriage of

justice" would occur absent review of a petitioner's claim, the petitioner must assert a credible claim

of actual innocence that is supported by reliable evidence that was not presented at trial. Schlup v.

Delo, 513 U.S. 298, 315-16 (1995).

Petitioner's first claim was procedurally defaulted by virtue of his failure to object to the

admission of his prior trial testimony on the grounds he asserts which resulted in appellate review

under the more restrictive "plain error" standard of review. It is well-established that the Michigan

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 7 of 17 Pg ID 1832
8

Court of Appeals' application of plain-error review constitutes the invocation of an independent and

adequate procedural rule that bars federal review of the merits of his claim absent a showing of

"cause and prejudice." Fleming v. Metrish, 556 F.3d 520, 524 (6th Cir. 2009).

Petitioner appears to argue that his counsel was ineffective for failing to object in an effort

to establish cause. Petitioner cannot show that his counsel was ineffective for failing to object to

the admission of his prior testimony under Mich. Comp. Laws 767.40a because any objection would

have been futile. The Michigan Court of Appeals found, as a matter of state law, that the admission

of a defendant's prior testimony is not subject to the 30-day notice requirement of the statute. In

analyzing petitioner's ineffective assistance of counsel claim, an expression of state law by the state

court is binding on this Court. See Basile v. Bowersox, 125 F. Supp. 2d 930, 960 (E.D. Mo. 1999).

See generally, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, any further objection by

counsel would have been futile. Counsel cannot be deemed ineffective for failing to raise a meritless

objection. See Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006); Anderson v. Goeke, 44

F.3d 675, 680 (8th Cir. 1995); Burnett v. Collins, 982 F.2d 922, 929 (5th Cir. 1993).

Accordingly, Petitioner's first claim is barred from review, and Petitioner cannot establish

cause to excuse the default.

C. Manslaughter Instruction 

Petitioner next asserts that the trial court incorrectly instructed the jury on the lesser-included

offense of manslaughter. The original transcript of the jury instructions with respect to this charge

read as follows:

First, when the defendant acted, his thinking must have been disturbed by emotional

excitement to the point that a reasonable person might have acted on impulse without

thinking twice. Compassion instead of judgment. This emotional excitement must

have been a result of something that would cause a reasonable person to act

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 8 of 17 Pg ID 1833
9

rationally or on impulse. The law does not say what things are enough to do this.

That is for you to decide.

Trial Tr. VII, at 84. (emphasis added).

If the italicized words "compassion" and "rationally" were used, the instruction obviously

would have been an incorrect statement of the law. However, after the issue was raised in the

Michigan Court of Appeals, an amended transcript was prepared by the court reporter, and the word

"compassion" was substituted with "passion," and the word "rationally" was changed to

"irrationally." Based on the amended transcript, the state appellate court rejected Petitioner's claim:

Defendant also claims that the trial court erroneously instructed the jury on

manslaughter by replacing the words "passion" with "compassion," and "irrationally"

with "rationally." Defendant's argument is based on a trial transcript that has since

been amended; the amended transcript shows that the trial court used the correct

words. Thus, there was no instructional error.

Warlaw-Brown, 2005 Mich. App. LEXIS 1089, *4-5.

This decision is based on a finding of fact by the state court that the correct words were used

and not the incorrect ones written in the original transcript. Petitioner has provided no evidence, let

alone clear and convincing evidence, to undermine this factual finding. See 28 U.S.C. § 2254(e)(1)

(establishing a presumption of correctness for factual determination made by a state court, including

a state appellate court, and requiring the petitioner to rebut the presumption by clear and convincing

evidence); Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir.

1989). Accordingly, Petitioner has not demonstrated entitlement to habeas relief with respect to his

second claim.

C. Illegal Arrest

Petitioner's third claim asserts that his statement to police should have been suppressed

because it was the product of an illegal arrest. The Michigan Court of Appeals considered and

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 9 of 17 Pg ID 1834
10

rejected this claim as follows:

In a pro se supplemental brief, defendant argues that his custodial statement

should have been suppressed as the fruit of an illegal arrest. He asserts that the

police arrested him without a warrant based only on Monette's uncorroborated,

unreliable, self-serving accusation, which was insufficient to establish probable

cause for a warrantless arrest. The record indicates that defendant moved to suppress

his statement on the basis that it was both coerced and obtained after his request for

an attorney was denied. Defendant did not challenge the validity of his arrest in the

trial court. Therefore, the issue is unpreserved and appellate relief is precluded

absent a plain error affecting defendant's substantial rights. Carines, supra. In the

absence of a record establishing what facts were available to the police at the time

of defendant's arrest, it follows that defendant cannot show that his arrest was plainly

illegal, i.e., made without probable cause to believe that defendant committed a

felony. See People v. Kelly, 231 Mich. App. 627, 631; 588 N.W.2d 480 (1998).

Therefore, we reject this claim of error.

Warlaw-Brown, 2005 Mich. App. LEXIS 1089, *5-6.

Petitioner's claim that his statement was admitted in violation of the Fourth Amendment may

not form the basis for habeas corpus relief. The Supreme Court has held that "where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner

may not be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at trial." Stone v. Powell, 428 U.S. 465, 494-95

(1976). The Sixth Circuit Court of Appeals utilizes a two-step analysis to determine whether a

defendant was given a full and fair opportunity to litigate a Fourth Amendment claim in state court:

First, the court must determine whether the state procedural mechanism, in the

abstract, presents the opportunity to raise a fourth amendment claim. Second, the

court must determine whether presentation of the claim was in fact frustrated because

of a failure of that mechanism.

Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (internal quotations omitted).

"Michigan has a procedural mechanism which presents an adequate opportunity for a

criminal defendant to raise a Fourth Amendment claim." Robinson v. Jackson, 366 F. Supp. 2d 524,

527 (E.D. Mich.2005). This procedural mechanism is a motion to suppress, ordinarily filed before

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 10 of 17 Pg ID 1835
11

trial. See People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357, 358-59 (1965) (describing the

availability of a pre-trial motion to suppress). Because Michigan provides a procedural mechanism

for raising a Fourth Amendment claim, Petitioner may only demonstrate entitlement to relief if he

establishes that presentation of his claim was frustrated by a failure of that mechanism. Petitioner

has not alleged any grounds for concluding that presentation of his Fourth Amendment claim was

somehow frustrated because a failure of the state's mechanism. Accordingly, he is not entitled to

habeas relief on this claim.

D. Claims Raised During State Post-Conviction Review

 Petitioner's remaining claims were raised in his motion for relief from judgment filed in the

state trial court and the appeal that followed its denial. Respondent asserts that the claims are

subject to procedural default because the state courts denied relief based on Petitioner's failure to

comply with a state procedural law that required him to file the claim during his appeal by right.

Petitioner's fourth claim asserts that his trial counsel was ineffective for failing to challenge the

legality of his arrest and failing to challenge the jurisdiction of the trial court to try him. His fifth

claim asserts that the trial court never acquired jurisdiction because the state district court judge did

not file the appropriate bind-over papers. His remaining claims assert that his appellate counsel's

ineffective and the trial court's failure to date its opinion denying his motion for relief from judgment

constitute cause to excuse his failure to raise these claims during his direct appeal. 

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

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 11 of 17 Pg ID 1836
12

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);

Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained state court judgment

should be used to determine whether a state court relied upon a procedural rule in denying relief. See

Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).

As explained, Petitioner presented these claims to the state courts in his motion for relief

from judgment. The Michigan Court of Appeals and Michigan Supreme Court denied relief

pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not grant relief

to a defendant if the motion for relief from judgment alleges grounds for relief which could have

been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds

previously and actual prejudice resulting therefrom. See MICH. CT. R. 6.508(D)(3). The United

States Court of Appeals for the Sixth Circuit has recently held that the form order used by the

Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation to

Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a

rejection on the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).

Consequently, under Guilmette, the Court must "look through" the unexplained order of the

Michigan Supreme Court to the state trial court's decision to determine the basis for the denial of

state post-conviction relief.

In this case, the state trial court denied relief on procedural grounds. The trial court denied

relief because "defendant has failed to demonstrate prejudice from the errors he alleges. Defendant

has also failed to demonstrate that his trial and appellate counsel were ineffective or that he had

good cause for failing to previously raise these issues in propria persona." Trial Court Opinion, at

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 12 of 17 Pg ID 1837
13

8-9. Accordingly, these claims are procedurally defaulted.

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,

supra.

Petitioner's sixth and seventh habeas claims assert ineffective assistance of appellate counsel

as cause to excuse the procedural default of his other claims. Petitioner has not shown that appellate

counsel was ineffective. In order to establish ineffective assistance of appellate counsel, Petitioner

must show "that counsel's performance was deficient . . . [and] that the deficient performance

prejudiced the defense." O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining

whether counsel's performance was deficient,

[t]he court must . . . determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent assistance

. . . . At the same time, the court should recognize that counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. 

Strickland v. Washington, 466 U.S. 668, 690 (1984). Therefore, judicial scrutiny of counsel's

performance must be "highly deferential." Id. at 689. The defense is prejudiced only if "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694.

It is well-established that a criminal defendant does not have a constitutional right to have

appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751

(1983). The Supreme Court has explained:

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

appointed counsel a duty to raise every "colorable" claim suggested by a client would

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 13 of 17 Pg ID 1838
14

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

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

Id. at 754.

Strategic and tactical choices regarding which issues to pursue on appeal are "properly left

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

1990). In fact, "the hallmark of effective appellate advocacy" is the "process of 'winnowing out

weaker arguments on appeal and focusing on' those more likely to prevail." See Smith v. Murray,

477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). "Generally, only when ignored

issues are clearly stronger than those presented will the presumption of effective assistance of

appellate counsel be overcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate

counsel may deliver deficient performance and prejudice a defendant by omitting a "dead-bang

winner," defined as an issue which was obvious from the trial record and would have resulted in

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

Petitioner has failed to show that by omitting the claims presented in his motion for relief

from judgment appellate counsel's performance fell outside the wide range of professionally

competent assistance. Appellate counsel presented legitimate and viable issues in Petitioner's direct

appeal. Indeed, Petitioner is still presenting those same claims in the instant petition, asserting that

they entitle him to habeas relief. Petitioner has not shown that appellate counsel's strategy in

presenting those claims and not raising the claims contained in the motion for relief from judgment

was deficient or unreasonable. 

Moreover, the unraised claims, ineffective assistance of trial counsel and a challenge to the

state trial court's jurisdiction, are certainly not "dead bang winners." Even assuming that counsel

could have challenged Petitioner's statement to police, it was not materially different from

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 14 of 17 Pg ID 1839
15

Petitioner's trial testimony that he shot the victim in self-defense. Petitioner's trial counsel

adequately presented this defense to the jury both through Petitioner's own testimony and by the use

of defense witnesses that painted the victim as a violent man who was regularly armed with a

handgun and had previously robbed Petitioner. Petitioner's challenge to the jurisdiction of the trial

court likewise not did not present a viable issue for appellate counsel to raise during his appeal by

right. As the trial court stated in its opinion, "the file contains a properly executed return and

bindover." Opinion, at 8. Lastly, Petitioner does not explain how the failure of the trial court to date

its opinion denying his motion for relief from judgment adversely affected him. It did not prevent

him from pursing his post-conviction review in the state appellate courts, as both of those courts

considered and denied his applications for leave to appeal. 

Petitioner has thus failed to demonstrate that appellate counsel was ineffective so as to

establish cause to excuse his procedural default, and these claims are barred from review.

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 15 of 17 Pg ID 1840
16

IV. Conclusion

The Court will deny the Petition for Writ of Habeas Corpus. The Court will also deny

Petitioner a Certificate of Appealability. Before Petitioner may appeal this Court’s dispositive

decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R.APP. P.

22(b). A certificate of appealability may issue “only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim

on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable

jurists would find the district court's assessment of the constitutional claim debatable or wrong. See

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Likewise, when a district court denies a habeas

petition on procedural grounds without reaching the prisoner’s underlying constitutional claims, a

certificate of appealability should issue, and an appeal of the district court’s order may be taken, if

the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid

claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling. Slack, 529 U.S. at 484. When a plain

procedural bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in dismissing the petition or

that the petition should be allowed to proceed further. In such a circumstance, no appeal would be

warranted. Id. “The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll.

§ 2254. For the reasons stated in this opinion, the Court will deny a Certificate of Appealability

because jurists of reason would not find this Court’s resolution of Petitioner’s claims to be debatable

or that he should receive encouragement to proceed further. Siebert v. Jackson, 205 F. Supp. 2d 727,

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 16 of 17 Pg ID 1841
17

735 (E.D. Mich. 2002). 

V. Order

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

s/John Corbett O’Meara 

United States District Judge

Date: July 15, 2011

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

on this date, July 15, 2011, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

5:09-cv-12937-JCO-MJH Doc # 6 Filed 07/15/11 Pg 17 of 17 Pg ID 1842