UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PAUL BURKS, #239979,

Petitioner,

Case No. 09-13331

v.

HONORABLE STEPHEN J. MURPHY

SHIRLEE HARRY,

Respondent.

_____________________________/

OPINION AND ORDER DENYING PETITION

FOR WRIT OF HABEAS CORPUS (docket no. 1),

DENYING A CERTIFICATE OF APPEALABILITY, BUT 

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Paul Burks has filed a pro se application for the writ of habeas corpus

pursuant to 28 U.S.C. §§ 2241 and 2254. Burks was convicted in 2005 of being a felon in

possession of a firearm. He claims that the evidence was insufficient to support his

conviction, that the trial court made errors, that the prosecutor engaged in misconduct, that

his trial and appellate attorneys were ineffective, and that his sentence is invalid. The state

courts’ adjudications of these claims was objectively reasonable. Therefore, the petition

is denied.

BACKGROUND

A. The Charges and Trial Testimony

Burks was charged with (1) armed robbery, (2) felon in possession of a firearm, (3)

assault with a dangerous weapon, and (4) possession of a firearm during the commission

of, or attempt to commit, a felony. Burks waived his right to a jury trial and was tried before

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Judge John O’Hair in Wayne County Circuit Court on August 24, 2005.

Raynell Freeman testified at Burks’ trial that, on April 5, 2005, she was looking for

an automated teller machine (ATM) on Fenkell Street in Detroit when she saw Burks driving

a small, red car. Burks and his female passenger stopped to talk with her. She asked

them if they knew anyone who wanted to buy some food stamps because she needed to

buy some pants and could not get her ATM card to work. After Burks offered to buy

Freeman’s food stamps, Ms. Freeman got in the car and went to the grocery store with

Burks and his companion. She gave the food stamps or her debit card number to Burks,

who went inside the store and came back out with some food, which he put in the car.

From there, they went to some friends’ house where Burks put the food away. He gave her

cocaine rather than cash for her food stamps, and when she complained that she wanted

money for the stamps, Burks said, “Well, that’s all I have to offer.” He left the house for

about thirty or forty minutes, but came back. 

Ms. Freeman, Burks, and two other people subsequently got in Burks’ car and went

to a different friend’s house on Hubbell Street. Burks promised to acquire some pants for

Freeman, but then he said she owed him some money. A friend ultimately provided

Freeman with some pants, and Burks then offered to take her home. When they left the

house, Burks pulled a handgun out of his pocket and showed it to her. He put the gun back

in his pocket, and the two of them left in Burks’ car.

As Burks was driving towards Coyle Street, he ordered Freeman to hand over her

earrings, her finger ring, and anything else that he could use. When Freeman refused,

Burks hit her with the back of his hand. Then he stopped the car, put his arm around her

neck, and touched her neck with a pocket knife. Freeman gave Burks her earrings, but she

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hid her ring in her sock. Burks subsequently backed into a driveway on Coyle Street where

he got out and argued with three men. After one man tried to hit Burks, he got back in the

car and demanded Freeman’s ring once again. She told him that she did not have the ring.

Burks then stopped the car, grabbed a rifle from the trunk of the car, and put the rifle

between their car seats. He once again demanded her ring and hit her repeatedly, but she

got away and ran across the street to someone’s house. A man came to the door of the

house and offered to call the police for her. She did not see Burks when the police arrived,

but his car was parked in a nearby yard, and someone told her that Burks was taken away

in an ambulance.

Police officer Bettie Cabbil testified that she responded to a call about an incident

near Fenkell and Coyle Streets at approximately 10:30 p.m. on April 5, 2005. The nature

of the call was person with a weapon. Raynell Freeman was on the porch of the house at

15378 Freeland Street where Officer Cabbil parked. An EMS unit was three or four houses

away tending to Burks, who was injured and unconscious. A red Honda Prelude vehicle

was parked on the grass in a neighbor’s yard about three or four houses away from Burks.

After receiving some information about ownership of the car, Officer Cabbil investigated it.

No one was in it, but she found a sword or machete, along with some groceries and a

television, in the back seat of the car. There was a black case containing a shotgun in the

partially open trunk of the car. 

B. The Stipulations, Motion for a Directed Verdict, and Closing Arguments

The parties stipulated that Burks had been convicted of a prior felony and was not

eligible to possess a firearm. Defense counsel then moved for a directed verdict of

acquittal on the ground that the firearm in evidence was not operable. The trial court

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denied the motion after noting that a gun does not have to be operable for purposes of the

felony firearm and felon-in-possession charges. Burks declined to testify and did not

present any witnesses. 

The prosecutor’s theory was that Burks owned money to some men in the

neighborhood for a drug debt and that he attempted to pay his debt by taking jewelry from

Ms. Freeman at gunpoint. Defense counsel pointed out in his closing argument that,

contrary to Ms. Freeman’s testimony, the gun in question was in the trunk of the car when

the police found it. Defense counsel argued that the only testimony about Burks being in

possession of the firearm came from Ms. Freeman, who was not credible. Defense

counsel maintained that Burks was merely present with Ms. Freeman and that the

prosecutor failed to establish beyond a reasonable doubt that Burks possessed, used,

transported, or carried a firearm.

Defense counsel also claimed that the prosecution had not proved the essential

elements of the assaultive crimes. He pointed out that, even though Ms. Freeman claimed

to have been frightened, she also testified that she fought back when Burks hit her. 

C. The Verdict, Sentence, Appeals, and Habeas Petition

The trial court found Burks guilty of being a felon in possession of a firearm, Mich.

Comp. Laws § 750.224f. The court acquitted Burks of the other three charges and initially

sentenced Burks to imprisonment for five to fifteen months. Two weeks after sentencing

Burks, the trial court re-sentenced him as a habitual offender to a term of five months to five

years. 

In an appeal of right, Burks argued that there was insufficient evidence to support

his conviction and that his sentence was invalid. The Michigan Court of Appeals affirmed

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Burks’ conviction and sentence in an unpublished, per curiam opinion. See People v.

Burks, No. 265909 (Mich. Ct. App. Feb. 6, 2007). Burks raised the same issues in the

Michigan Supreme Court, which denied leave to appeal because it was not persuaded to

review the issues. See People v. Burks, 479 Mich. 862 (2007) (table).

Burks raised several new issues in a motion for relief from judgment. The trial court

denied Burks’ motion in a reasoned opinion on April 10, 2008. Burks attempted to appeal

the trial court’s decision, but the Michigan Court of Appeals dismissed his delayed

application without prejudice for failure to pursue the appeal in conformity with the court

rules. Burks then applied to the Michigan Supreme Court, which denied leave to appeal

a second time because it was not persuaded to review the issues. See People v. Burks,

483 Mich. 979 (2009) (table).

Burks filed his habeas corpus petition on August 24, 2009. He claims that: (1) his

conviction should be reversed due to insufficient evidence; (2) the re-sentence was invalid;

(3) the trial court subjected him to multiple punishments for the same offense; (4) his

sentence violates the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 542 U.S. 296 (2004); (5) he was denied due process of law by the

lack of a timely notice of the prosecutor’s intent to enhance his sentence for recidivism; (6)

the trial court interfered with his cross-examination of the State’s key witness; (7) the trial

court’s verdict was against the great weight of the evidence; (8) trial counsel was

ineffective; (9) the prosecutor failed to correct perjured testimony; (10) the trial court

abused its discretion by refusing to give him 157 days of jail credit against his parole

offense; (11) appellate counsel was ineffective and “cause” for the failure to raise certain

issues on direct appeal; and (12) the trial court deprived him of due process of law by

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depriving him of an opportunity to develop a factual record to support his claim of

ineffective assistance of trial counsel. 

The State argues in an answer to the petition that Burks’ first claim (insufficient

evidence) lacks merit and that Petitioner’s second claim (invalid sentence) is not cognizable

on habeas review in addition to being waived. The State also contends that claims three

through eleven are procedurally defaulted because Burks failed to raise the claims in his

direct appeal and that Burks failed to exhaust state remedies for his twelfth claim. Neither

exhaustion, nor procedural default, are jurisdictional limitations, Pudelski v. Wilson, 576

F.3d 595, 606 (6th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3274 (2010), and this

Court has found no merit in Burks’ claims. The Court therefore will proceed to address the

substantive merits of Burks’ claims, using the following standard of review. 

STANDARD OF REVIEW

“The statutory authority of federal courts to issue habeas corpus relief for persons

in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 131 S. Ct. 770, 783

(2011). Pursuant to § 2254, state prisoners are not entitled to the writ of habeas corpus

unless the state court’s adjudication of their claims on the merits 

(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). 

Under the “contrary to” clause, a federal habeas court may grant the

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writ 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. Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court identifies the correct

governing legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “[W]here factual findings are challenged,

the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the

presumption that the state court’s factual findings are correct.” Goodwin v. Johnson, 632

F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum v. Mitchell, 625

F.3d 905, 914 (6th Cir. 2010)). 

“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.” Richter, 131 S. Ct. at 786. To obtain a writ of habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on a claim “was so lacking in

justification” that it resulted in “an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at 786-87. 

ANALYSIS

A. The Weight and Sufficiency of the Evidence

The first habeas claim alleges that Burks’ conviction should be reversed due to

insufficient evidence, and the seventh habeas claim alleges that the trial court’s verdict was

against the great weight of the evidence. The latter claim is a state-law argument, and a

federal habeas court is allowed to review only issues of federal law. Nash v. Eberlin, 258

F. App’x 761, 764 n.4 (6th Cir. 2007). Thus, Burks’ great-weight-of-the-evidence argument

is not cognizable on habeas corpus review. 

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The former claim – that the evidence was insufficient to support Burks’ conviction

– raises a constitutional issue and is cognizable on habeas review. The Michigan Court of

Appeals adjudicated the claim on direct review and concluded that the evidence was

sufficient to sustain Burks’ conviction.

The relevant question on habeas review “is whether, after viewing the evidence in

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

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

307, 319 (1979) (emphasis in original). This standard “must be applied with explicit

reference to the substantive elements of the criminal offense as defined by state law.” Id.

at 324 n.16. 

To prove the elements of felon in possession of a firearm, the prosecution must

establish that the defendant was convicted of a prior felony, that he possessed a firearm,

and that three or five years, depending on the prior felony, had not elapsed after he paid

all fines, served all terms of imprisonment, and completed all terms of probation or parole

imposed for the offense. Mich. Comp. Laws § 750.224f; People v. Perkins, 262 Mich. App.

267, 269-70 (2004). After the statutory period has elapsed, the convicted felon is prohibited

from possessing a firearm until his or her right to do so has been formally restored.

Perkins, 262 Mich. App. at 270-71. 

The parties stipulated that Burks had a prior felony conviction and was not eligible

to possess a weapon. (Tr. Aug. 24, 2005, at 20-21, 161-62.) Thus, the only question is

whether Burks possessed a firearm on April 5, 2005. 

Possession of a firearm may be proved by circumstantial evidence. People v. Hill,

433 Mich. 464, 469 (1989), and 

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“possession” includes both actual and constructive possession. . . . [A]

person has constructive possession if there is proximity to the article together

with indicia of control. Put another way, a defendant has constructive

possession of a firearm if the location of the weapon is known and it is

reasonably accessible to the defendant. Physical possession is not

necessary as long as the defendant has constructive possession. 

Id. at 470-71 (internal and end citations omitted). 

Raynell Freeman testified that Burks retrieved a rifle from the trunk of the car that

he was driving and placed the rifle in the car between them. This testimony was sufficient

evidence that Burks possessed a firearm. Although there was additional evidence that the

rifle was missing a part, a person can be found guilty of possessing a firearm even if the

firearm is not operable. People v. Peals, 476 Mich. 636, 638, 656 (2006).

Burks alleges that he was not found with keys to the car where the gun was found,

that the car was not registered to him, and that his fingerprints were not present on the car.

In addition, Burks points out that he was found three or four houses away from the car

when the police searched it and found the gun. According to Burks, the only evidence that

he drove the car came from Ms. Freeman, whose testimony was arbitrary, self-serving, and

convoluted. 

The trial court stated that Ms. Freeman’s testimony was “terribly confusing,”

“somewhat incoherent,” and “at times conflicting.” (Tr. Aug. 24, 2005, at 178.) The court

nevertheless accepted Ms. Freeman’s testimony that she entered a vehicle which Burks

was driving. A federal habeas court “does not reweigh the evidence or redetermine the

credibility of the witnesses whose demeanor has been observed by the trial court. It is the

province of the factfinder to weigh the probative value of the evidence and resolve any

conflicts in testimony.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (internal

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and end citation omitted). 

 Even if one discredits Ms. Freeman’s testimony, Officer Bettie Cabbil testified that

she found a gun in the trunk of a car that Ms. Freeman had pointed out to her and that

someone else had said the car belonged to Burks. (Tr. Aug. 24, 2005, at 148-49, 152,

160.) A rational trier of fact could have inferred from all the evidence that Burks owned or

had possession of the car and that he had proximity to the firearm with indicia of control.

A rational trier of fact could have concluded that Burks constructively possessed the

firearm. 

If the Court had concluded that a rational trier of fact could not have found Burks

guilty beyond a reasonable doubt, the Court would still have to “defer to the state appellate

court’s sufficiency determination as long as it is not unreasonable.” Brown v. Konteh, 567

F.3d 191, 205 (6th Cir. 2009), cert. denied,130 S. Ct. 1081 (2010). The Michigan Court of

Appeals stated on review of Burks’ claim:

Given that the evidence demonstrates that the gun was found in the trunk of

a vehicle that defendant was driving on the day of the incident, we conclude

that, viewing this evidence in the light most favorable to the prosecution, a

reasonable trier of fact could infer that defendant constructively possessed

the gun.

Burks, Mich. Ct. App. No. 265909, at 2. The Court of Appeals held “that the evidence was

sufficient to support an inference by a reasonable trier of fact that defendant knew the gun

was in the trunk and the gun was reasonably accessible to defendant.” Id. This conclusion

was objectively reasonable. Burks therefore has no right to relief on the basis of his

sufficiency-of-the-evidence claim. 

B. The Sentence

The second, third, fourth, and tenth habeas claims pertain to Burks’ sentence. Burks

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contends for a variety of reasons that his initial sentence was valid and that his re-sentence

is invalid. 

1. The Re-sentencing

Burks initially was sentenced to imprisonment for five to fifteen months. He claims

that the trial court erred when it re-sentenced him to a maximum sentence of five years. 

 In Michigan, the maximum sentence “is not determined by the trial judge but is set

by law.” People v. Claypool, 470 Mich. 715, 730 n. 14 (2004). The maximum sentence for

felon in possession of a firearm is five years. Mich. Comp. Laws § 750.224f(3). When the

trial court realized that it had erroneously sentenced Burks to a maximum sentence of

fifteen months, it re-sentenced Burks to the statutory maximum of five years. Defense

counsel was present at the re-sentencing, and he agreed that the maximum sentence

should be five years. (Tr. Sept. 23, 2005, at 3-4.) Because defense counsel explicitly

agreed to the re-sentencing, the Michigan Court of Appeals concluded that Burks waived

his claim. 

Even if the claim were not waived, the initial sentence was invalid under state law.

Trial courts may set aside and correct an invalid sentence even if the prisoner has already

served part of his term. Bozza v. United States, 330 U.S. 160, 166 (1947); see also Mich.

Ct. R. 6.429(A) (authorizing state courts to correct an invalid sentence). Thus, there is no

merit to Burks’ claim that his sentence of five months to five years is invalid.

2. Double Jeopardy

Burks alleges that his initial sentence of five months to fifteen months fell within the

sentencing guidelines and was constitutional. He claims that his current sentence violates

his constitutional right not to be placed in double jeopardy, because the trial court re2:09-cv-13331-SJM-CEB Doc # 12 Filed 02/09/12 Pg 11 of 27 Pg ID 612
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sentenced him to a five-year maximum term after the Michigan Department of Corrections

took custody of him. 

The Fifth Amendment to the United States Constitution provides that “no person

shall be . . . subject for the same offence to be twice put in jeopardy of life or limb.” U.S.

Const. Amend. V. But the fact that a defendant has been twice before a judge for

sentencing and detained during the interim does not constitute double jeopardy when the

initial sentence was invalid; no valid or enforceable sentence could be imposed if an

inadvertent error could not be corrected. Bozza, 330 U.S. at 166. “The Constitution does

not require that sentencing should be a game in which a wrong move by the judge means

immunity for the prisoner.” Id. at 166-67. 

Here, as In Bozza, the trial court merely “set aside what it had no authority to do 

. . . . It did not twice put petitioner in jeopardy for the same offense. The sentence as

corrected, impose[d] a valid punishment for an offense instead of an invalid punishment for

that offense.” Id. at 167 (citations and footnote omitted). Burks, therefore, has no right to

habeas relief on the basis of his double jeopardy claim.

3. Apprendi and Blakely

Burks asserts that, by increasing his maximum sentence, the trial court violated the

principles of Apprendi, 530 U.S. at 466, and Blakely, 542 U.S. at 296. The trial court

adjudicated this claim on collateral review and determined that Apprendi and Blakely were

not applicable. 

In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S.

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at 490. In Blakely, the Supreme Court stated “that the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303

(emphasis omitted). 

Burks’ maximum sentence was based solely on the statute, not on any additional

facts that the trial court took into consideration. And because Burks’ sentence did not

exceed the statutory maximum, Apprendi and Blakely are not applicable. 

4. Jail Credit

In his tenth claim, Burks alleges that the trial court abused its discretion by refusing

to afford him 157 days of credit for the time he spent in jail before his trial and sentencing.

Burks claims that the trial court violated the plain language of Mich. Comp. Laws § 769.11b,

which provides: 

Whenever any person is hereafter convicted of any crime within this state

and has served any time in jail prior to sentencing because of being denied

or unable to furnish bond for the offense of which he is convicted, the trial

court in imposing sentence shall specifically grant credit against the sentence

for such time served in jail prior to sentencing.

Burks was on parole when he allegedly committed the crime at issue in this case.

He raised his jail-credit claim at his sentencing and at the re-sentencing. The trial court

denied the request on grounds that Burks was not entitled to credit against his new

sentence and, even though the law provided for credit against his parole case, it was up

to the Department of Corrections to issue credit in that case. (Tr. Sept. 9, 2005, at 10;

Sept. 23, 2005, at 4-6.) Burks raised the issue again in his motion for relief from judgment,

but the trial court stated that he had abandoned the issue by failing to provide documentary

evidence that he did not receive the sentencing credit. 

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This Court finds no merit in Burks’ claim because “[a] prisoner has no right under the

federal constitution to earn or receive sentencing credits.” Grays v. Lafler, 618 F. Supp.2d

736, 747 (W.D. Mich. 2008) (citing Moore v. Hofbauer, 144 F. Supp.2d 877, 882 (E.D.

Mich. 2001) (citing Hansard v. Barrett, 980 F.2d 1059, 1062 (6th Cir. 1992)). A state

court’s interpretation and application of crediting statutes is a matter of state concern only,

Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003), and “federal habeas corpus relief does

not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (citing Pulley v.

Harris, 465 U.S. 37, 41 (1984); Rose v. Hodges, 423 U.S. 19, 21-22 (1975) (per curiam)).

Furthermore, Burks was not entitled to credit on his sentence for felon in possession

of a firearm; rather, he was eligible for credit on a prior sentence for which he was on

parole at the time he purportedly committed the crime in question here. People v. Seiders,

262 Mich. App. 702, 705 (2004). The trial court was not obligated to grant credit on a

sentence in another case. Therefore, Burks is not entitled to habeas relief on the basis of

his claim about sentencing credits. 

C. The Prosecutor 

1. Untimely Notice

Burks asserts in his fifth claim that the prosecution deprived him of timely notice of

its intent to seek enhancement of Burks’ sentence due to his status as a habitual offender.

Under state law, the prosecutor must provide notice of intent to seek an enhanced

sentence due to recidivism within twenty-one days of the date of the arraignment. Mich.

Comp. Laws § 769.13(1); Mich. Ct. R. 6.112(F). Petitioner contends that the prosecutor

charged him as a habitual offender, but failed to file a timely notice of intent to seek

enhancement of the sentence.

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The alleged violation of the notice provisions of Mich. Comp. Laws § 769.13(1) and

Mich. Ct. R. 6.112(F) is not a basis for habeas relief, because “it is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Furthermore, the trial court determined on

review of this claim that Burks and his attorney did have notice of the prosecutor’s intent

to seek enhancement of the sentence. The trial court correctly noted that the prosecutor

included notice in the felony information of intent to enhance the sentence. See ECF No.

10-9, at 41. According to the trial court, the notice also was read to Burks at his preliminary

examination. Because Burks had notice of the prosecutor’s intent, he has no right to relief

on the basis of his claim that the prosecutor failed to provide timely notice of intent to

enhance the sentence. 

2. Alleged Perjury

In his ninth claim, Burks asserts that Raynell Freeman committed perjury at his trial

and that the prosecutor violated his right to due process by failing to correct Ms. Freeman’s

perjured testimony. The trial court rejected this argument when adjudicating Burks’ motion

for relief from judgment. The trial court stated that Burks had presented no evidence that

Freeman’s testimony was false or that the prosecutor knew the testimony was false. 

In his habeas petition, Burks gives the following example of alleged perjury: Ms.

Freeman testified that Burks pointed a rifle out the window of the car (Tr. Aug. 24, 2005,

at 141), but she later made the rhetorical comment, “[W]hy would he stick the barrel [of the

gun] out the window?” (Id. at 142). As another example of perjury, Burks points to Ms.

Freeman’s testimony that Burks bought groceries with Ms. Freeman’s debit card in

exchange for money. (Id. at 42.) Ms. Freeman later testified that those groceries were

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stored at a house on Marlow Street (id. at 43) even though Burks was forced out of the

house (id. at 50) and even though Officer Cabbil testified that some groceries were found

in the Honda Prelude (id. at 154). Burks concludes from this evidence that Ms. Freeman’s

testimony was irreconcilable and can be categorized as nothing but perjury.

Prosecutors may not deceive a court by knowingly presenting false evidence or by

allowing false testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153

(1972). But to prevail on his claim that the prosecutor used false testimony, Burks must

show that (1) the testimony was actually false, (2) the false statements were material, and

(3) the prosecutor knew the testimony was false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir.

1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). 

Ms. Freeman was forty-one years old at trial (Tr. Aug. 24, 2005, at 36), and she said

that she had finished a year and a half of college (id. at 137). Despite Freeman’s mature

age and educational level, her testimony was difficult to follow at times. The trial court had

to ask for clarification more than once. (Id. at 49, 75-76.) At other times, the attorneys or

the trial court had to ask Ms. Freeman to listen carefully to a question and not to talk until

a question was posed to her or an objection was resolved. (Id. at 92, 104, 124, 127-31.)

The trial court even asked her whether she had taken any medication. (Id. at 92.) Defense

counsel accused her of lying, but the prosecutor described her as “confused.” (Id. at 136.)

At the conclusion of the trial, the trial court described Ms. Freeman’s testimony as

“terribly confusing,“ ”somewhat incoherent,” and “at times conflicting.” (Id. at 178.) The trial

went on to say: 

What she has described . . . may have happened, possibly happened, maybe

even more probably than not happened. But because of the character of the

testimony, as a finder of fact I cannot conclude beyond a reasonable doubt

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that her descriptions of the occurrence of the alleged crimes have a factual

basis.

(Id.)

This is not to say that Ms. Freeman committed perjury. Mere inconsistencies,

contradictions, or changes in testimony do not establish false testimony or perjury.

Lochmondy, 890 F.2d at 822; United States v. Lebon, 4 F.3d 1, 2 (1st Cir. 1993); Tapia v.

Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). Furthermore, Ms. Freeman claimed at one

point that defense counsel was upsetting her and that his questions had confused her

somewhat. (Tr. Aug. 24, 2005, at 104, 137.) On another occasion, she said that she

thought the attorneys were trying to confuse her. (Id. at 129.) It does not appear that she

was lying. Even if she did lie under oath, there is no reason to believe that the prosecutor

knew she was lying. The Court therefore finds no merit in Burks’ claim that the prosecutor

suborned perjury. 

D. Cross-Examination

In his sixth claim, Burks alleges that the trial court interfered with his right of

confrontation by limiting his cross-examination of Raynell Freeman. Specifically, Burks

claims that his attorney was prevented from asking Ms. Freeman where he purportedly

pointed the gun. Burks claims that Ms. Freeman evaded defense counsel’s question, and,

if the trial court had heard the impeachment evidence, there is a reasonable likelihood the

court would have acquitted Burks on all the charges. The trial court rejected this claim in

its order denying Burks’ motion for relief from judgment because defense counsel’s

inquiries were repetitive and because the court had discretion to limit the cross

examination. 

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1. Clearly Established Federal Law

The Confrontation Clause of the Sixth Amendment to the United States Constitution

applies to the States and “guarantees the right of a criminal defendant ‘to be confronted

with the witnesses against him.’ The right of confrontation includes the right to

cross-examine witnesses.” Richardson v. Marsh, 481 U.S. 200, 206 (1987) (citing Pointer

v. Texas, 380 U.S. 400, 404, 406-07 (1965)). Cross-examination may be used to test the

believability of a witness and to reveal a witness’s biases, prejudices, or motivation for

testifying. Davis v. Alaska, 415 U.S. 308, 316-17 (1974). 

Trial courts, however, have broad discretion to limit the scope of cross-examination

by precluding “repetitive and unduly harassing interrogation.” Id. at 316. When, as here,

it is merely the extent of cross-examination that is limited, the trial judge

retains a much wider latitude of discretion, though of course that discretion

may be abused. 

[T]he test in such circumstances is whether the jury had enough

information, despite the limits placed on otherwise permitted

cross-examination, to assess the defense theory. “[O]nce cross-examination

reveals sufficient information to appraise the witnesses’ veracity,

confrontation demands are satisfied.” 

Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989) (emphasis in original) (citations

omitted).

2. Application

Ms. Freeman testified on direct examination that Burks retrieved a rifle from the

trunk of his car, placed the gun inside the car between the two of them, and pushed the gun

against her. (Tr. Aug. 24, 2005, at 55-56.) On cross-examination, she testified that the rifle

was pointed down, that the top part of the rifle hung out the window, and that it never

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changed positions. (Id. at 110-13.) Defense counsel then asked Ms. Freeman about her

testimony at the preliminary examination where she said that the handle of the rifle had

been touching her and the barrel had been sticking out the window. Ms. Freeman

responded that she did not recall being asked those questions or giving those answers and

that she did not know anything about guns, but she did know that the gun had to be down

because she saw the barrel. (Id. at 113-14.) On re-direct examination, Ms. Freeman

explained that the window, which she had mentioned earlier in her testimony, was the

sunroof in Burks’ car and that she remembered seeing the gun sticking out that window.

(Id. at 131-32.) 

On re-cross examination, defense counsel asked Ms. Freeman whether at any other

time, she had mentioned that the car had a sunroof and that the barrel of the gun had been

sticking out the window. Ms. Freeman responded that she did not know what she had said,

but she remembered that the gun had been sticking out the window. Defense counsel then

pointed out that Ms. Freeman had previously said the gun was pointed down toward the

floor. Ms. Freeman agreed. The questioning continued as follows: 

Q [by defense counsel]. [T]hen you said that the barrel was sticking out of the

window; is that correct? You want me to direct you to where you testified to

that?

A [by Ms. Freeman]. I know the gun – why would he stick the barrel out the

window so the police can see the barrel out the window?

Q. Ma’am, I am not answering questions. I’m asking you.

A. Okay. But I was – I mean as you show me the gun – 

THE COURT: She did give that testimony. Let’s move on.

(Id. at 142.) 

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Although the trial court did prevent defense counsel from asking additional

questions, defense counsel had already questioned Ms. Freeman about the gun and the

direction it was pointed. Additionally, defense counsel had already demonstrated that Ms.

Freeman’s testimony about the position of the rifle was confusing and even contradictory.

The trial court had enough information with which to appraise Ms. Freeman’s credibility and

to assess the defense theory that Freeman was not credible. Therefore, the restriction

placed on defense counsel’s cross-examination of Ms. Freeman did not violate Burks’ right

of confrontation. 

Even if constitutional error occurred, Burks was convicted of only one charge (felon

in possession of a firearm), and the position of the rifle in the car was immaterial. The

critical question was whether Burks actually or constructively possessed the rifle. In

making that determination, the trial court credited Officer Bettie Cabbil’s testimony. Thus,

the alleged error during re-cross-examination of Ms. Freeman could not have a “substantial

and injurious effect or influence” on the trial court’s findings and conclusion of law. Brecht

v. Abrahamson, 507 U.S. 619, 623 (1993). The alleged error was harmless. 

E. Trial Counsel

The eighth habeas claim alleges ineffective assistance of trial counsel. Although

Burks raised several claims about his trial attorney in his motion for relief from judgment,

the trial court concluded that none of the reasons asserted by Burks established ineffective

assistance. 

1. Clearly Established Federal Law

The Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), is

clearly established federal law for purposes of evaluating an

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ineffective-assistance-of-counsel claim. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

Under Strickland, an attorney is constitutionally ineffective if his or her "performance was

deficient" and "the deficient performance prejudiced the defense." Strickland, 466 U.S. at

687. 

To establish deficient performance, a habeas petitioner must show "that counsel

made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the

defendant by the Sixth Amendment." Id. "Judicial scrutiny of counsel's performance must

be highly deferential." Id. at 689. "[T]he defendant must overcome the presumption that,

under the circumstances, the challenged action "might be considered sound trial strategy."

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

To demonstrate that counsel's performance prejudiced the defense, a habeas

petitioner must show "a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id. at 694. "This does not

require a showing that counsel's actions ‘more likely than not altered the outcome,'" but

"[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 131

S. Ct. at 792 (quoting Strickland, 466 U.S. at 693). "The standards created by Strickland

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

‘doubly' so." Id. at 788 (internal and end citations omitted). 

2. Failure to Object to the Sentence

Burks claims that his trial attorney was ineffective for failing to object to the

imposition of a new sentence, which subjected him to multiple punishments for the same

offense. As explained above, however, the trial court merely set aside an invalid sentence.

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The new sentence did not violate Burks’ right not to be twice placed in jeopardy for the

same offense. Bozza, 330 U.S. at 166. Therefore, defense counsel was not ineffective

for conceding that the new sentence was necessary. 

Burks also contends that defense counsel should have objected to Burks being

sentenced as a habitual offender because the recidivist notice was not timely filed. As

previously explained, however, Burks and his attorney were notified early in the case of the

prosecutor’s intent to seek enhancement of the sentence based on Burks’ recidivism. An

objection would have been futile, and an attorney is “not required to raise meritless

arguments to avoid a charge of ineffective assistance of counsel.” Ludwig v. United States,

162 F.3d 456, 459 (6th Cir. 1998).

3. Failure to Impeach and to Present a Substantial Defense

Burks claims next that his attorney failed to present a substantial defense and failed

to impeach Raynell Freeman with her motive, interest, and bias. Failure to impeach a

witness can amount to ineffective assistance when it deprives a defendant of a meaningful

defense. See Blackburn v. Foltz, 828 F.2d 1177, 1184, 1186 (6th Cir. 1987). But to prevail

on his claim, Petitioner must show “‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting

Strickland, 466 U.S. at 694).

There was no reason to believe that Ms. Freeman was biased against Burks or had

any reason to fabricate her allegations. Furthermore, defense counsel defended the case

on grounds that Ms. Freeman was not credible and that there was no proof beyond a

reasonable doubt that Burks possessed a firearm. Defense counsel was successful in

getting Burks acquitted of three of the four charges, and the trial court relied primarily on

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Officer Cabbil’s testimony when concluding that Burks was guilty of the remaining charge.

The Court therefore finds no merit in Burks’ contention that defense counsel failed to

present a substantial defense or was ineffective for failing to impeach Ms. Freeman with

her allegedly improper motive and bias. 

 4. The Failure to Investigate, Call Witnesses, and Move for a Continuance

Burks claims that defense counsel should have conducted an investigation, called

res gestae witnesses, and moved for a continuance to allow Burks to testify. Attorneys

have “a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. . . . [A] particular decision not to investigate

must be directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. 

Burks has not alleged what he or res gestae witnesses would have said if they had

testified. Nor has he alleged what additional investigative work might have uncovered.

Therefore, he has no right to relief on his claim that trial counsel was ineffective for not

investigating, for not calling res gestae witnesses, or for failing to move for a continuance

so that he could testify.

5. Failure to Request a Fingerprint Expert

Burks alleges next that defense counsel should have moved for appointment of a

fingerprint expert to establish that Burks was not the driver of the Honda Prelude and did

not possess a gun. The absence of fingerprints would not necessarily have established

Burks’ innocence because there could have been a number of reasons why there were no

fingerprints on the car. Furthermore, there was substantial evidence that Burks had been

in the car. Ms. Freeman testified that Burks was the driver of the car, and Officer Cabbil

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testified that someone had informed her the car belonged to Burks. For these reasons,

defense counsel’s failure to request a fingerprint expert did not amount to ineffective

assistance.

6. The Alleged Stipulation Regarding Possession of a Firearm

Burks’ final allegations about defense counsel are that defense counsel did not know

the pertinent law and stipulated to Burks being in possession of a firearm. Burks has not

shown how defense counsel’s alleged ignorance of the law prejudiced him, and the

contention that defense counsel stipulated to the elements of the offense is not supported

by the record. Defense counsel argued that Burks was merely present with Ms. Freeman

on the day in question and that there was no evidence, other than Ms. Freeman’s incredible

testimony, that he possessed a gun or was even near the car where the gun was found.

Defense counsel did stipulate that Burks had a prior felony conviction and was not

eligible to possess a weapon. (Tr. Aug. 24, 2005, at 20-21.) But the stipulation likely was

a trial tactic to prevent the trial court from learning the nature of the prior conviction. See

People v. Swint, 225 Mich. App. 353, 379 (1997) (acknowledging a defendant’s right to

stipulate to the existence of a prior felony conviction without disclosing the nature of the

prior conviction). Burks does not deny having a prior conviction, and the prosecutor no

doubt could have proved the existence of the prior conviction through the use of public

records if defense counsel had not stipulated to the prior conviction. Trial counsel,

therefore, was not ineffective for stipulating to the prior conviction. 

F. Appellate Counsel 

The eleventh claim alleges that appellate counsel was ineffective during the direct

appeal and “cause” for Burks’ failure to raise claims three through ten on direct appeal.

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The trial court stated on review of this claim that counsel could not be deemed ineffective

for failing to make meritless arguments. 

The proper standard for evaluating a habeas claim about appellate counsel is the

standard enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). Burks

must demonstrate that his appellate attorney’s performance was deficient and that the

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.

The “deficient performance” prong of the two-part Strickland test requires showing

that appellate counsel made an objectively unreasonable decision to raise other issues in

place of the petitioner’s claims. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281,

285 (6th Cir. 2010). Burks must show that his claims are clearly stronger than the issues

counsel presented to the Michigan Court of Appeals. Id. (quoting Webb v. Mitchell, 586

F.3d 383, 399 (6th Cir. 2009) (quoting Robbins, 528 U.S. at 285, 288). To demonstrate

“prejudice,” Burks must show a reasonable probability that he would have prevailed if his

attorney had raised all his claims on appeal. Id. (citing Robbins, 528 U.S. at 285). 

The habeas claims which were not raised in the appeal of right allege that: Burks

was subjected to multiple punishments for the same offense; his sentence violates

Apprendi and Blakely; the prosecutor did not file a timely notice of intent to enhance Burks’

sentence for recidivism; the trial court violated Burks’ right of confrontation; the verdict was

against the great weight of the evidence; trial counsel was ineffective; the prosecutor failed

to correct perjured testimony; and the trial court refused to award jail credit. This Court has

evaluated each of these claims and found no merit in them. Because the claims lack merit,

defense counsel was not ineffective for failing to raise the claims on direct appeal.

Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010), cert. denied, 131 S. Ct. 1013

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(2011).

G. The Lack of an Opportunity to Develop a Factual Record

The twelfth and final habeas claim alleges that the trial court deprived Burks of due

process by depriving him of an opportunity to develop a factual record to support his claims

about trial counsel. Burks raised his claim about trial counsel on collateral review of his

conviction. His claim has no merit because alleged deficiencies in a state’s post-conviction

procedures “relate to a state civil matter, not the custody of a defendant.” Roe v. Baker,

316 F.3d 557, 571 (6th Cir. 2002) (citing Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.

1986)). Consequently, a claim that some error occurred during state post-conviction

proceedings is not cognizable on federal habeas corpus review. Id. 

CERTIFICATE OF APPEALABILITY

“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic

right to appeal a district court’s denial or dismissal of the petition. Instead, [the] petitioner

must first seek and obtain a [certificate of appealability.]” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). 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,

as here, “a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Reasonable jurists could not disagree with the Court’s resolution of Burks’ claims.

The Court therefore declines to issue a certificate of appealability on any of Burks’ claims.

 

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 CONCLUSION AND ORDER

The state court decisions in this case were not contrary to clearly established federal

law as determined by the Supreme Court, an unreasonable application of clearly

established federal law, or an unreasonable determination of the facts. 

WHEREFORE, it is hereby ORDERED the petition for a writ of habeas corpus is

DENIED.

IT IS FURTHER ORDERED THAT the Court DENIES a certificate of appealability

on all twelve claims presented in the habeas petition. 

IT IS FURTHER ORDERED THAT Burks may proceed in forma pauperis on appeal

because he was granted leave to proceed in forma pauperis in the District Court. Fed. R.

App. P. 24(a)(3).

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: February 9, 2012

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

counsel of record on February 9, 2012, by electronic and/or ordinary mail.

Carol Cohron 

Case Manager

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