1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTOINE ODOM,

Petitioner, Civil No. 5:09-11197

HONORABLE JOHN CORBETT O’MEARA

v. UNITED STATES DISTRICT JUDGE

GARY CAPELLO,

Respondent,

___________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS

Antoine Odom, (“Petitioner”), presently confined at the Baraga Maximum

Correctional Facility in Baraga, Michigan, seeks the issuance of a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his

conviction for three counts of assault on a prison employee by an inmate, M.C.L.A.

750.197c; and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons

stated below, the application for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above charges following a jury trial in the Jackson

County Circuit Court. 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):
2

Sergeant Katoshia Watson testified that on December 12, 2004, she was

working as “yard sergeant ... responsible for yard activities and the chow lines,

among other activities” at the Charles Egeler Reception and Guidance Center

in Jackson, Michigan. Sergeant Watson testified that during meals, officers try

to discourage the inmates from talking while in the food line.

Sergeant Watson testified that while Odom was moving through the food line

he “stated that he had a problem with a particular officer ... related to a ticket”

that he had received. Odom testified that he was trying to talk to Sergeant

Watson regarding an incident that had occurred on December 10, 2004, in

which his cell was “ransacked.” Sergeant Watson testified that she responded

by telling Odom that she “had over 300 more inmates that needed to be fed”

and that Odom was holding up her line. She told Odom that she would talk to

him when she had time. Odom stated that Watson was responsible for

handling his complaint about the incident because “she was working that block

the day the incident occurred.” Sergeant Watson testified that Odom “was not

exactly happy” to hear her answer to his request to talk to her. Sergeant

Watson said that Odom “brawned up” and his voice level went up as if he were

very angry. Sergeant Watson said that she was concerned about things

escalating, so she alerted an officer “to be mindful of this particular inmate”

and allowed Odom to eat his meal. After Odom ate, Sergeant Watson asked

another officer to get Odom and bring him over to talk to her. After discussing

Odom’s complaint, Sergeant Watson indicated that there was nothing she

could do for him. Sergeant Watson testified that Odom was upset, and as he

walked away, he started to get loud and attempted to involve the other inmates.

Sergeant Watson said that the other inmates started egging Odom on. Sergeant

Watson testified that at that time, she told Officer Kenneth Ellis to handcuff

Odom.

Sergeant Watson testified that at first she thought Odom was going to comply

with the cuffing, but instead Odom punched her in the face. Several officers

confirmed that they saw Odom strike Sergeant Watson. Sergeant Watson

testified that Odom also spat in her face twice. She said that Odom “kept

coming at her” and that Officer Ellis tried to assist but “it was pretty hard for

[the two of them] to even handle him.” She stated that “probably about seven”

officers were needed to get Odom under control. Sergeant Watson testified

that “an officer applied a pressure point” to Odom and held him down, and

eventually Odom was carried to the segregation unit by eight officers.

Sergeant Watson said that she then removed herself from the situation, as is

required by policy. Sergeant Watson testified that she was later informed by

medical personnel that Odom was HIV positive (infected with the human
3

immunodeficiency virus) and had hepatitis B. Odom denied hitting or spitting

on Sergeant Watson.

Officer Michael Marsh testified that after he saw Odom hit Sergeant Watson

he went toward Odom and then Odom punched him in the mouth. Corrections

Officer Steven McCrum testified that he saw Odom strike Officer Marsh in the

face. Odom denied punching anybody in the mouth.

Officer Douglas Culler testified that he helped carry Odom from the cafeteria.

Officer Culler testified that as he was getting Odom out of the cafeteria he

noticed that Odom “appeared to be bleeding out of the corner of his mouth.”

Officer Culler testified that while carrying Odom into the segregation cell,

Odom spit in his face. Officer Culler testified that he then after had to receive

a mixture of several drugs to protect against possible HIV exposure. Odom

denied spitting at Officer Culler.

People v. Odom, 276 Mich. App. 407, 409-11; 740 N.W. 2d 557 (2007).

Petitioner’s conviction was affirmed on appeal. Id., reh. den. No. 267867

(Mich.Ct.App. September 19, 2007); lv. den. 480 Mich. 1141; 746 N.W. 2d 100 (2008);

reconsideration. den. 481 Mich. 881; 748 N.W. 2d 809 (2008).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court improperly scored Offense Variable 1 under the Michigan

Sentencing Guidelines and counsel was ineffective for failing to object to

the guidelines scoring.

II. Prosecutorial misconduct.

III. Ineffective assistance of trial counsel.

IV. Insufficient evidence to sustain a finding of guilt beyond a reasonable

doubt.

V. Violation of petitioner’s right to self-representation.

VI. Disclosure of petitioner’s HIV status violated petitioner’s constitutional

rights.
1

 Due to the brevity of the petition for writ of habeas corpus, this Court is willing to incorporate the

arguments raised in petitioner’s state appellate court brief and his pro per supplemental brief [See Dkt. 9-11], which

he refers to in his habeas application, as being part of petitioner’s application for writ of habeas corpus. See e.g.

Burns v. Lafler, 328 F. Supp. 2d 711, 717, n. 2. (E.D. Mich. 2004). 

4

VII. Violation of right to confront witnesses at trial.

VIII. Violation of right to an impartial tribunal. 1

II. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: 

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

(2000). An “unreasonable application” occurs when “a state court decision unreasonably

applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A

federal habeas court may not “issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established
5

federal law erroneously or incorrectly." Id. at 410-11.

III. Discussion

A. The renewed motion to prepare the transcripts and the appellate record.

Petitioner previously filed a motion in which he asked this Court to order the

prosecutor to prepare transcripts and copies of his appeal briefs from his state court files,

so he could file a post-conviction appeal in the state courts or file additional pleadings in

this Court. On February 18, 2010, this Court denied the motion. See Odom v. Capello,

2010 WL 582784 (E.D. Mich. February 18, 2010). Petitioner has now filed a motion to

amend and supplemental pleadings [Dkt. # 13] and a second motion for production of

transcripts [Dkt. # 14], in which he again asks this Court to order respondent to provide

him with the trial transcripts and appellate court record.

The Court will deny petitioner’s renewed motion for transcripts, because

petitioner has once again failed to show why these appellate briefs or transcripts are

needed for him to prepare either a post-conviction appeal in the state courts or to prepare

pleadings in his federal habeas proceeding. A “blanket and noncommittal request” for

documents by a habeas petitioner is insufficient to enable a federal court to make a

determination of necessity pursuant to § 2250. See Cassidy v. United States, 304 F. Supp.

864, 867 (E.D Mo. 1969); See also Morton v. Warren, No. 2008 WL 4386840, * 5 (E.D.

Mich. September 24, 2008); See also United States v. Chambers, 788 F. Supp. 334, 338

(E.D. Mich. 1992)(federal criminal defendant not entitled to production of trial

transcripts on his “bald assertion” that he needed them to prepare § 2255 post-conviction
6

motion to vacate sentence). In light of the conclusory nature of petitioner’s motion for

the production of the transcripts from his state court case, the renewed motion for

production of the transcripts is denied. Id.

B. Claim # 1. The sentencing guidelines/ineffective assistance of counsel at

sentencing claim.

Petitioner first claims that the trial court improperly scored 20 points for offense

variable (OV) 1 of the Michigan Sentencing Guidelines, based on petitioner spitting his

HIV-positive blood on a corrections officer. Petitioner further claims that counsel was

ineffective for failing to object to the scoring of OV 1.

Petitioner’s claim that the state trial court incorrectly scored or calculated his

sentencing guidelines range under the Michigan Sentencing Guidelines is not a

cognizable claim for federal habeas review, because it is basically a state law claim. See

Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); See also Adams v. Burt, 471 F.

Supp. 2d 835, 844 (E.D. Mich. 2007). Petitioner has no state-created interest in having

the Michigan Sentencing Guidelines applied rigidly in determining his sentence. See

Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009); Payne v. Smith, 207

F. Supp. 2d 627, 640 (E.D. Mich. 2002). Petitioner’s claim that the sentencing

guidelines were incorrectly scored thus fails to state a claim upon which habeas relief

can be granted. Cook v. Stegall, 56 F. Supp. 2d at 797.

Petitioner further claims that his trial counsel was ineffective at sentencing for

failing to object to the scoring of the sentencing guidelines.
7

Although the Supreme Court has never expressly extended Strickland v.

Washington, 466 U.S. 668 (1984) to noncapital sentencing cases, the Sixth Circuit has

applied it in that context with regards to reviewing federal convictions on direct appeal.

See United States v. Stevens, 851 F. 2d 140, 145 (6th Cir. 1988). However, the AEDPA

standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits the use of lower court

decisions in determining whether the state court decision is contrary to, or an

unreasonable application of, clearly established federal law. Miller v. Straub, 299 F. 3d

570, 578-579 (6th Cir. 2002). The Ninth Circuit has noted, “[W]hen the Supreme Court

established the test for ineffective assistance of counsel claims in Strickland, the

[Supreme] Court expressly declined to ‘consider the role of counsel in an ordinary

sentencing, which ... may require a different approach to the definition of

constitutionally effective assistance.’” Cooper-Smith v. Palmateer, 397 F. 3d 1236, 1244

& n. 39 (9th Cir. 2005)(quoting Strickland, 466 U.S. at 686). Because the Supreme Court

has not decided what standard should apply to ineffective assistance of counsel claims in

the noncapital sentencing context, there is no clearly established federal law regarding

ineffective assistance of counsel claims in noncapital sentencing cases, so as to provide

petitioner with a basis for habeas relief on his claim. Id., See also Davis v. Grigas, 443 F.

3d 1155, 1158 (9th Cir. 2006).

In any event, assuming that Strickland applies to noncapital sentencings,

petitioner is unable to show that counsel acted deficiently in failing to object to the

scoring of OV 1, because petitioner has failed to establish that the sentencing guidelines
8

were improperly scored under Michigan law. The Michigan Court of Appeals held that

the trial court properly scored 20 points under OV 1, based on petitioner’s act of spitting

his HIV-positive blood on a corrections officer. In so ruling, the Michigan Court of

Appeals concluded that HIV-infected blood qualified as a “harmful biological

substance” under OV 1, since it was a substance produced by a human organism that

contained a virus that could spread or cause disease in humans. People v. Odom, 276

Mich. App. at 411-13. 

In light of the fact that the Michigan Court of Appeals determined that OV 1 of

the Michigan Sentencing Guidelines was correctly scored, petitioner has failed to show

that counsel was deficient for failing to object to the scoring of OV 1. Because petitioner

has failed to show that his counsel acted deficiently with respect to the scoring of the

guidelines, petitioner is not entitled to habeas relief on his claim. See Bridinger v.

Berghuis, 429 F. Supp. 2d 903, 911 (E.D. Mich. 2006).

C. Claim # 2. The prosecutorial misconduct claims.

Petitioner next contends that he was deprived of a fair trial because of

prosecutorial misconduct.

When a petitioner seeking habeas relief makes a claim of prosecutorial

misconduct, the reviewing court must consider that the touchstone of due process is the

fairness of the trial, not the culpability of the prosecutor. On habeas review, a court’s

role is to determine whether the conduct was so egregious as to render the entire trial

fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F. 3d 1348, 1355-
9

56 (6th Cir. 1993). 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. Id.

Petitioner first contends that the prosecutor offered unsworn testimony during the

questioning of Sergeant Watson. In response to Sergeant Watson’s testimony that

petitioner“brawned up,” the prosecutor asked Sergeant Watson what she meant by that,

asking “You mean, he kind of, what, stands up straight and, kind of spreads himself out a

little?” The Michigan Court of Appeals concluded that the prosecutor’s remark was a

reasonable question prompted by, and in direct response to, Sergeant Watson’s testimony

and was only a request for a clarification. Odom, 276 Mich. App. at 414. A prosecutor

does not unduly inject himself into the proceedings or offer unsworn testimony by asking

a witness to clarify his or her response to an appropriate question. See U.S. v. Gholston,

10 F. 3d 384, 389 (6th Cir. 1993). The prosecutor’s question was not improper.

The Court will discuss petitioner’s next two prosecutorial misconduct claims

together because they are of a similar nature. Petitioner first claims that the prosecutor

engaged in misconduct when he did not ask a witness to fully explain what a “Critical

Incident Report” was or what its various parts contained. In rejecting this claim, the

Michigan Court of Appeals observed that petitioner failed to explain how this alleged
10

failure prejudiced his right to a fair trial. Odom, 276 Mich. App. at 414. Petitioner

further claimed that the prosecutor engaged in misconduct by not conceding at trial that

petitioner’s reference to a letter that he had sent to a person named “Kabob” was meant

to be a reference to a letter that petitioner had sent to a person named “Kabot,” which is

the prosecutor’s name. In rejecting this claim, the Michigan Court of Appeals noted that

petitioner himself failed to clarify this fact despite the prosecutor’s direct question to

petitioner, in which he was asked who “Kabob” was. Id.

The prosecutor’s questions or the responses to these questions with respect to

these issues was neither misleading or prejudicial. Accordingly, the prosecutor did not

engage in prosecutorial misconduct. See U.S. v. Blood, 435 F. 3d 612, 628 (6th Cir.

2006).

Petitioner finally claims that the prosecutor improperly asked petitioner to

comment regarding the truthfulness of other witnesses. In rejecting this claim, the

Michigan Court of Appeals indicated that the record did not show that the prosecutor

ever asked petitioner to comment on other witnesses’ truthfulness. Odom, 276 Mich. at

414. Conclusory allegations of prosecutorial misconduct fail to state a claim upon which

habeas relief can be granted. See Johnson v. Renico, 314 F. Supp. 2d 700, 710 (E.D.

Mich. 2004). Because petitioner’s final prosecutorial misconduct claim is conclusory or

unsupported, he is not entitled to habeas relief. 

D. Claim # 3. The ineffective assistance of counsel claims.

Petitioner next contends that he was deprived of the effective assistance of
11

counsel.

To prevail on his ineffective assistance of counsel claims, petitioner must show

that the state court’s conclusion regarding these claims was contrary to, or an

unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984). See

Cathron v. Jones, 190 F. Supp. 2d 990, 996 (E.D. Mich. 2002). Strickland established a

two-prong test for claims of ineffective assistance of counsel: the petitioner must show

(1) that counsel’s performance was deficient, and (2) that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687.

Petitioner first claims that his counsel was ineffective for failing to object to the

prosecutorial misconduct that he alleges in Claim # 2, supra. Petitioner cannot show that

counsel was ineffective for failing to object to the prosecutor’s questions, in light of the

fact that the Michigan Court of Appeals found on direct appeal that the questions were

not improper. See Finkes v. Timmerman-Cooper, 159 Fed. Appx. 604, 611 (6th Cir.

2005). Because the prosecutor’s conduct was not improper, counsel’s failure to object to

the prosecutor’s comments and questions was not ineffective assistance of counsel. See

Meade v. Lavigne, 265 F. Supp. 2d 849, 866 (E.D. Mich. 2003). 

Petitioner next claims that his trial counsel was ineffective for failing to make an

initial opening statement. Although defense counsel did not make an opening statement

after the prosecutor’s opening statement, he did make an opening statement right after

the prosecution rested and before calling witnesses to testify for the defense. 

“The timing of an opening statement, and even the decision whether to make one
12

at all, is ordinarily a mere matter of trial tactics and in such cases will not constitute the

incompetence basis for a claim of ineffective assistance of counsel.” Millender v. Adams,

187 F.Supp.2d 852, 870 (E.D. Mich. 2002)(quoting United States v. Rodriguez-Ramirez,

777 F. 2d 454, 457 (9th Cir. 1985)). Petitioner is not entitled to relief because he has

failed to show how he was prejudiced by counsel’s failure to make an opening statement

until after the prosecution had rested. See e.g. Moss v. Hofbauer, 286 F. 3d 851, 864 (6th

Cir. 2002)(counsel not ineffective for failing to make opening statement, where the

petitioner failed to articulate how the absence of an opening statement prejudiced him). 

Petitioner next contends that counsel was ineffective for failing to object to false

testimony that petitioner claims was given by various witnesses. In rejecting this claim,

the Michigan Court of Appeals noted that “one cannot object simply because one thinks

a witness is lying. The veracity of a witness is a matter for the trier of fact to discern.” 

Odom, 276 Mich. App. at 416 and n. 22( citing People v. Lemmon, 456 Mich. 625, 637,

576 N.W.2d 129 (1998)). 

In the present case, other than his own self-serving statements, petitioner has

failed to show that the prosecutor’s witnesses testified falsely, thus, his counsel’s failure

to object to such testimony does not constitute ineffective assistance of counsel. See

Davis v. Burt, 100 Fed. Appx. 340, 346 (6th Cir. 2004). 

Petitioner next claims that his defense counsel was ineffective for failing to

properly investigate his case or prepare for trial because defense counsel did not meet

with petitioner before the preliminary hearing, did not go to the prison, and did not make
13

any effort to locate and talk to any other inmate witnesses. In rejecting this claim, the

Michigan Court of Appeals noted that these alleged deficiencies were not apparent from

the existing record and would not be reviewed by the court. Odom, 276 Mich. App. at

417. The Michigan Court of Appeals had previously indicated that because petitioner

had made no request for an evidentiary hearing or a motion for a new trial, their review

of petitioner’s ineffective assistance of counsel claims would be limited to the existing

record. Id. at 415.

Because petitioner failed to present any evidence in a proper manner to the

Michigan courts to support these ineffective assistance of counsel claims, petitioner is

not entitled to an evidentiary hearing to further develop these claims in his habeas

proceeding. See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir. 2002)(citing 28 U.S.C. §

2254(e)(2)(A)(ii)). Because there is nothing on the record to support these allegations of

ineffective assistance of counsel, petitioner is not entitled to habeas relief on these

claims.

Petitioner next alleges that his counsel was ineffective for not pleading

self-defense. In rejecting this claim, the Michigan Court of Appeals noted that petitioner

testified at trial that he never assaulted anyone, therefore, petitioner’s testimony ran

contrary to a self-defense claim. Odom, 276 Mich. App. At 417.

Under Michigan law, “[a] finding that a defendant acted in justifiable self-defense

necessarily requires a finding that the defendant acted intentionally but that the

circumstances justified his actions.” Taylor v. Withrow, 288 F. 3d 846, 853 (6th Cir.
14

2002)(quoting People v. Heflin, 434 Mich. 482, 456 N.W.2d 10, 19 (1990)). In light of

the fact that petitioner testified that he did not assault any of the guards, counsel’s

decision to pursue an innocence defense instead of a self-defense claim was a reasonable

trial strategy that would defeat petitioner’s ineffective assistance of counsel claim. See

e.g. Poindexter v. Mitchell, 454 F. 3d 564, 573-75 (6th Cir. 2006)(counsel was not

deficient in failing to pursue of “heat of passion” defense, in light of the fact that such a

defense would have been inconsistent with petitioner’s continued insistence that he had

no involvement in the crime). 

Petitioner finally claims that counsel was ineffective for failing to request a

change of venue, in light of the fact that Jackson County contained a large number of

people who knew or were related to corrections officers, and would therefore have a bias

in favor of the corrections officers’ testimony. The Michigan Court of Appeals noted

that the trial court asked the pool of prospective jurors if any of them had friends or

family who worked for the Michigan Department of Corrections and everyone who said

they had a close connection to someone who worked in a prison was eliminated from the

jury. Because this was an effective means of dealing with the possible risk of bias,

counsel was not ineffective for failing to request a change of venue. Odom, 276 Mich.

App. at 417. Because the trial judge conducted a thorough voir dire and the jurors as

seated exhibited no bias, counsel was not ineffective for failing to move for a change of

venue. See e.g. Chegwidden v. Kapture, 92 Fed. Appx. 309, 311 (6th Cir. 2004). 

Petitioner is not entitled to habeas relief on his ineffective assistance of counsel claims.
15

E. Claim # 4. The sufficiency of evidence claim.

Petitioner next claims that there was insufficient evidence to convict him of these

crimes because the officers lied.

A habeas court reviews claims that the evidence at trial was insufficient for a

conviction by asking whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Scott v. Mitchell, 209 F. 3d 854, 885 (6th Cir.

2000)(citing to Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Moreover, in reviewing

a state court’s application of the Jackson standard, a federal habeas court is required to

determine whether the state court’s application of the law in reviewing a sufficiency of

evidence claim was reasonable. See Tucker v. Palmer, 541 F. 3d 652, 666 (6th Cir. 2008);

cert. den. 130 S. Ct. 109 (2009)(citing 28 U.S.C. § 2254(d)(1)). Section 2254(d)

“mandates that federal courts give deferential review to state court decisions on

sufficiency of evidence claims.” David v. Lavinge, 190 F. Supp. 2d 974, 985 (E.D. Mich.

2002)(internal citations omitted). 

Under Michigan law, “[A] person lawfully imprisoned in a ... place of

confinement established by law for any term, ... who, ... through the use of violence,

threats of violence or dangerous weapons, assaults an employee of the place of

confinement ... knowing the person to be an employee”... is guilty of assaulting a prison

employee. Odom, 276 Mich. App. at 418 (quoting M.C.L.A. 750.197c).

In rejecting petitioner’s claim, the Michigan Court of Appeals noted that there
16

was no dispute that the officers in this case were employees of the Department of

Corrections or that petitioner was lawfully incarcerated at the time of the assaults. The

Michigan Court of Appeals further noted that there was testimony from multiple

witnesses that petitioner punched two of the corrections officers in the face and spat at a

third. The Michigan Court of Appeals concluded that this evidence was sufficient to

establish the elements of assault upon a prison employee. Odom, 276 Mich. App. at 418. 

This Court agrees that this evidence was sufficient for a rational trier of fact to find

petitioner guilty of three counts of assault on a prison employee.

To the extent that petitioner claims that the witnesses were not credible, he would

not be entitled to relief. Attacks on witness credibility are simply challenges to the

quality of the prosecution’s evidence, and not to the sufficiency of the evidence. Martin

v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002). An assessment of the credibility of

witnesses is therefore generally beyond the scope of federal habeas review of sufficiency

of evidence claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). Petitioner’s

insufficiency of evidence claim rests on an allegation of the victim’s credibility, which is

the province of the jury. Petitioner is therefore not entitled to habeas relief on this claim.

See Tyler v. Mitchell, 416 F. 3d 500, 505 (6th Cir. 2005). 

F. Claim # 5. The self-representation claim.

Petitioner next contends that he was denied his Sixth Amendment right of selfrepresentation.

In rejecting petitioner’s claim, the Michigan Court of Appeals observed that
17

petitioner never requested to represent himself at trial, therefore, there was no violation

of his right to self-representation. Odom, 276 Mich. App. at 419.

Criminal defendants have a constitutional right to conduct their own defense at

trial, if they voluntarily and intelligently elect to do so. Martinez v. Court of Appeal of

California, Fourth Appellate Dist., 528 U.S. 152, 154 (2000); Faretta v. California, 422

U.S. 806, 807 (1975). However, the right to self-representation is not absolute.

Martinez, 528 U.S. at 161. A defendant’s request for self-representation must be made

clearly and unequivocally. See United States v. Collins, 129 Fed. Appx. 213, 217 (6th Cir.

2005)(citing Faretta, 422 U.S. at 835). In addition, a defendant’s invocation of his right

of self-representation must be timely made. See e.g. Moore v. Haviland, 531 F. 3d 393,

403 (6th Cir. 2008). 

The Michigan Court of Appeals rejected petitioner’s claim, on the ground that

there was nothing in the court record to indicate that petitioner had ever invoked his right

to self-representation. In considering federal habeas petitions, a federal district court

must presume the correctness of state court factual determinations, and a habeas

petitioner may rebut this presumption only with clear and convincing evidence. Bailey v.

Mitchell, 271 F. 3d 652, 656 (6th Cir. 2001); 28 U.S.C. § 2254(e)(1). The presumption

of correctness extends to factual findings made by state appellate courts on the basis of

their review of trial court records. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir.

2001)(citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). The question of whether a

habeas petitioner invoked his right to self-representation in state court is a question of
18

fact that is entitled to the presumption of correctness on federal habeas review of a state

court conviction. See Fields v. Murray, 49 F. 3d 1024, 1032 (4th Cir. 1995). Petitioner

has offered no evidence to rebut the Michigan Court of Appeals’ finding that he never

invoked his right to self-representation. Accordingly, he is not entitled to relief on his

claim. 

G. Claim # 6. The disclosure of petitioner’s HIV status.

Petitioner next contends that the state court violated Michigan law by allowing his

HIV status to be disclosed at trial.

It is “not the province of a federal habeas court to reexamine state-court

determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 

A federal court is limited in federal habeas review to deciding whether a state court

conviction violates the Constitution, laws, or treaties of the United States. Id. Thus,

errors in the application of state law, especially rulings regarding the admissibility of

evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 224

F. 3d 542, 552 (6th Cir. 2000); See also Bridinger, 429 F. Supp. 2d at 908-09. “There is

no specific constitutional right prohibiting disclosure of a person's HIV status at trial.”

Tokar v. Bowersox, 1 F. Supp. 2d 986, 1004 (E.D. Mo. 1998). Accordingly, petitioner is

not entitled to habeas relief on his claim.

H. Claim # 7. The Confrontation Clause claim.

Petitioner next alleges that his Confrontation Clause rights were violated when the 
19

trial court permitted Sergeant Watson, who did not testify during the preliminary

examination, to testify at trial. 

There is no Confrontation Clause problem when the witness testifies at trial and is

subject to unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560

(1988); See also Crawford v. Washington, 541 U.S. 36, 59, n. 9 (2004); U.S. v.

Mayberry, 540 F. 3d 506, 516 (6th Cir. 2008). Moreover, there is no right to confront

witnesses at a preliminary hearing before being required to stand trial. See Peterson v.

California, 604 F. 3d 1166, 1170 (9th Cir. 2010). Even if a criminal defendant is not

given a preliminary hearing, he is not denied the constitutional right to confront his

witnesses, as long as he is able to confront them in open court at trial. See Green v.

Bomar, 329 F. 2d 796, 797 (6th Cir. 1964); vacated on other grds, 379 U.S. 358 (1965);

See also U.S. v. Mulligan, 520 F. 2d 1327, 1329-30 (6th Cir. 1975)(continuance of

preliminary examination to date some 11 days following arrest, at which time New York

complaint was dismissed because of return of Michigan indictment, did not deny

defendants their Sixth Amendment right of confrontation, on ground that they were

unable to cross-examine key government witness prior to trial). The Ninth Circuit notes

that “the United States Supreme Court has repeatedly stated that the right to

confrontation is basically a trial right.” Peterson, 604 F. 3d at 1169 (quoting

Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (holding that “the right to confrontation

is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense

counsel receives wide latitude at trial to question witnesses”); California v. Green, 399
20

U.S. 149, 157 (1970) (“[I]t is th[e] literal right to ‘confront’ the witness at the time of

trial that forms the core of the values furthered by the Confrontation Clause[.]”). 

Because petitioner was able to cross-examine Sergeant Watson at trial, the failure to

produce her at the preliminary examination did not violate petitioner’s confrontation

rights. 

I. Claim # 8. Judicial bias claim.

Petitioner lastly contends that he was deprived of a fair and impartial tribunal

because of judicial bias.

In rejecting this claim, the Michigan Court of Appeals pointed to petitioner’s

complaint that the trial judge was biased against him based primarily on his treatment

during a preliminary hearing. The Michigan Court of Appeals noted that during this

hearing, petitioner continually interrupted both the trial judge and his own attorney, and

argued several times with the trial judge, prompting the judge to finally warn petitioner

to “act decently” or he would “sit next door and watch [the trial] on TV.” The Michigan

Court of Appeals concluded that nothing that petitioner complained of demonstrated any

bias on the part of the trial judge “and, to the contrary, demonstrates that the trial court

acted with some degree of patience with Odom’s outbursts in court.” Odom, 276 Mich.

App. at 422. 

The Due Process Clause of the Fourteenth Amendment requires a fair trial in a

fair tribunal before a judge with no actual bias against the defendant or an interest in the

outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). However, to
21

state a claim that a judge is biased, a defendant must show either actual bias or the

appearance of bias creating a conclusive presumption of actual bias. United States v.

Lowe, 106 F. 3d 1498, 1504 (6th Cir. 1997). “Under this standard, ‘[o]nly in the most

extreme of cases would disqualification on the basis of bias and prejudice be

constitutionally required.’” Getsy v. Mitchell, 495 F.3d 295, 311 (6th Cir.2007)(quoting

Williams v. Anderson, 460 F.3d 789, 814 (6th Cir.2006)). The Supreme Court has ruled

that “expressions of impatience, dissatisfaction, annoyance, and even anger” do not

establish judicial bias. Liteky v. United States, 510 U.S. 540, 555-56 (1994). “A judge’s

ordinary efforts at courtroom administration-even a stern and short-tempered judge's

ordinary efforts at courtroom administration-remain immune.” Id. A judge is required to

recuse himself or herself only where he has actual bias or “a predisposition ‘so extreme

as to display clear inability to render fair judgment.’” Johnson v. Bagley, 544 F. 3d 592,

597 (6th Cir. 2008)(quoting Liteky, 510 U.S. at 551). In reviewing a judicial bias claim, a

federal habeas court should employ the initial presumption that the assigned trial judge

properly discharged his or her official duties. See Johnson v. Warren, 344 F. Supp. 2d

1081, 1093 (E.D. Mich. 2004).

In the present case, the trial judge’s admonishments to petitioner following his

courtroom outbursts did not demonstrate judicial bias, because these remarks were made

by the judge in the course of ordinary courtroom administration and proceedings and

while attempting to control the decorum of the courtoom. See U.S. v. Kimball, 73 F. 3d

269, 273 (10th Cir. 1995). Petitioner is not entitled to habeas relief on his eighth and
22

final claim. 

IV. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will also

deny a certificate of appealability to petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or 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,

483-84 (2000). When a district court rejects a habeas petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims to be debatable or wrong. Id. at

484. “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 petitioner a certificate

of appealability because he has failed to make a substantial showing of the denial of a

federal constitutional right with respect to any of the claims. The Court will also deny

petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See

Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
23

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

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

IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in

forma pauperis.

s/John Corbett O’Meara 

United States District Judge

Date: August 24, 2010

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

of record on this date, August 24, 2010, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager