1

By Order entered this date, Mitch Perry has been substituted in place of Jeffrey Woods as the

proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD ALAN SHORT,

Petitioner,

CASE NO. 2:09-CV-12171

v. JUDGE DAVID M. LAWSON

MAGISTRATE JUDGE PAUL J. KOMIVES

MITCH PERRY,1

Respondent.

 /

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION .................................................................. 2

II. REPORT ............................................................................. 2

A. Procedural History .............................................................. 2

B. Factual Background Underlying Petitioner’s Conviction ................................. 4

C. Standard of Review .............................................................. 5

D. Prosecutorial Misconduct (Claim I) ................................................. 7

1. Clearly Established Law ................................................... 7

2. Analysis ................................................................ 9

a. False Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

b. Arguing Facts Not in Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

E. Ineffective Assistance of Counsel (Claim II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

a. Failure to Object to Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

b. Failure to Impeach Pierce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

c. Failure to Question Nurse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

F. Newly Discovered Evidence (Claim III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

G. Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

H. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of habeas

corpus and should deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Gerald Alan Short is a state prisoner, currently confined at the Newberry

Correctional Facility in Newberry, Michigan.

2. On July 8, 2005, petitioner was convicted of third degree criminal sexual conduct,

MICH. COMP. LAWS § 750.520d(1)(c), following a jury trial in the Kent County Circuit Court. On

August 23, 2005, he was sentenced as an habitual offender to a term of 15-30 years’ imprisonment.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claims:

I. THE DEFENDANT IS ENTITLED TO A UNANIMOUS VERDICT ON THE

CHARGE WHERE THE COURT GAVE THE JURY ALTERNATIVES FOR

PENETRATION IN A CRIMINAL SEXUAL CONDUCT 3RD DEGREE

CASE WHERE THE PENETRATIONS USED WERE ALL SEPARATE

ACTS.

II. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY FOR

AN OFFENSE TO WHICH THE DEFENDANT DID NOT HAVE A

PRELIMINARY EXAMINATION, THE PROSECUTOR DID NOT MAKE

A MOTION TO AMEND OR ADD ANY CHARGES, NO ORDER TO

AMEND CHARGES WAS ENTERED, AND THE DEFENDANT WAS

GIVEN NO NOTICE OF THE AMENDED CHARGES.

III. WHETHER THE DEFENDANT’S CONVICTION SHOULD BE

REVERSED BECAUSE THE CASE WAS NOT PROVEN OUTSIDE OF

THE DEFENDANT’S STATEMENT.

IV. DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE TRIAL

COURT ERRED IN SCORING POINTS FOR OV7.

V. THE SENTENCE COURT ERRED WHEN IT SCORED THE DEFENDANT

15 POINTS FOR OFFENSE VARIABLE 8.

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In a supplemental brief filed by new counsel, petitioner raised three additional claims:

I. THE PROSECUTOR FAILED TO CORRECT FALSE TESTIMONY THAT

HE ELICITED FROM THE JAILHOUSE SNITCH. THE PROSECUTOR

REPEATEDLY SUGGESTED THAT MR. SHORT POISONED THE

COMPLAINANT WITH G.H.B. DESPITE THE COMPLETE ABSENCE OF

EVIDENCE THAT THIS OCCURRED. THE PROSECUTOR COMMITTED

MISCONDUCT AND MR. SHORT IS ENTITLED TO A NEW TRIAL.

II. TRIAL COUNSEL FAILED TO OBJECT TO PREJUDICIAL LIES FROM

THE SNITCH, AND FAILED TO IMPEACH THE SNITCH REGARDING

THESE LIES, IN WHICH COUNSEL SET UP IMPEACHMENT ON.

COUNSEL FAILED TO ELICIT TESTIMONY ON THE INTERACTION OF

ALCOHOL AND PAXIL THAT THE COMPLAINANT ADMITTED TO

TAKING. COUNSEL FAILED TO OBJECT TO THE PROSECUTOR’S

REPEATED SUGGESTIONS THAT MR. SHORT POISONED THE

COMPLAINANT WITH GHB. MR. SHORT IS ENTITLED TO A GINTHER

HEARING IN ORDER TO DEVELOP THE ISSUE.

III. AFTER THE TRIAL, TWO SEPARATE WITNESSES WROTE

AFFIDAVITS DISCLOSING FACTS THAT SUGGEST MR. SHORT’S

INNOCENCE. A NEW TRIAL IS WARRANTED DUE TO NEWLY

DISCOVERED EVIDENCE.

The court of appeals found no merit to petitioner’s claims, and affirmed his conviction and sentence.

See People v. Short, No. 266368, 2007 WL 3119401 (Mich. Ct. App. Oct. 25, 2007) (per curiam).

4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The

Supreme Court denied petitioner’s application for leave to appeal in a standard order. See People v.

Short, 480 Mich. 1135, 745 N.W.2d 799 (2008).

5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus

on June 4, 2009. As grounds for the writ of habeas corpus, he raises the three claims raised in his

supplemental brief in the Michigan Court of Appeals.

6. Respondent filed his answer on December 10, 2009. He contends that petitioner’s

prosecutorial misconduct claim is barred by petitioner’s procedural default in the state courts, and that

all of petitioner’s claims are without merit.

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7. Petitioner filed a reply brief on January 11, 2010.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s conviction arises from the December 2003 sexual assault of Kelly Fitzgerald in

Cedar Springs, Michigan. The evidence adduced at trial was accurately summarized in the initial brief

filed by petitioner’s counsel in the Michigan Court of Appeals:

The alleged victim was Kelly Fitzgerald. Ms. Fitzgerald testified that she is

a 34 year old woman who began her evening on December 28 by attending a work

Christmas party at the Winter Inn Bar. She arrived at approximately 7:00 - 7:30 pm.

She was drinking vodka and 7-up. From the Winter Inn, she went to Turk Lake Bar

where she had “. . . a couple drinks . . .” After spending 1 - 1.5 hours at the Turk

Lake Bar, Ms. Fitzgerald went to the Roundup. The Roundup is a bar in Cedar

Springs, Michigan. While at the Roundup, she consumed more vodka/7-up. At the

Roundup, she ran into the defendant who invited a large number of people to his house

after the bar. Ms. Fitzgerald accepted and went to the defendant’s house with 30 to

40 other people.

Ms. Fitzgerald had consumed 6 - 7 drinks (Vodka/7-up) from the time she

arrived at the Winter Inn to the time when she left the Roundup to go to the

defendant’s residence.

After being at the defendant’s house for awhile, Ms. Fitzgerald recognized an

acquaintance. The acquaintance was witness April Salmon Edwards. While hugging,

the two fell on the floor and Ms Fitzgerald hit her head and snapped her neck. The fall

resulted in her becoming dizzy and disoriented. Ms. Fitzgerald then sat on the couch

for a period of time and remained disoriented. She then testified that the next thing

she knew the defendant was on top of her having sex with her.

Ms. Fitzgerald testified that he was having penile/vaginal penetration with her.

She did not testify as to any other form of penetration. Ms. Fitzgerald then said the

defendant raised his hand and she remembers nothing else.

The next morning when she awoke and was leaving, at that time the defendant

asked where she was going. Ms. Fitzgerald then advised that the defendant had

conducted un-consented sex with her. The defendant denied the action.

Ms. Edwards is a friend of the defendant and an acquaintance with Ms.

Fitzgerald. She was at the party the night before and fell with Ms. Fitzgerald. While

hugging Ms. Fitzgerald, the two fell. Ms. Edwards contends that Ms. Fitzgerald did

not seem disoriented as a result of the falling, but rather she had drank too much and

was in no condition to drive. So Ms. Edwards took her to lay down on the defendant’s

bed.

Witness [Roy] Pierce was a jail-house snitch. He testified that the defendant

told him about committing the sexual act.

Witness [Cindy] DeBiak works/volunteers for the YWCA as a sexual assault

nurse examiner. She testified that she examined Ms. Fitzgerald. The examination did

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not result in any physical evidence.

Witness [Lt. Greg] Parolini works for the Kent County Sheriff’s Department.

He is a special trained interviewer in criminal cases. He talked with the defendant

about the incident. He testified as to inconsistencies in the defendant’s statements.

He then was allowed to use this gathered information to give his opinion that the

defendant was lying.

Witness [Jason] Schaefer is a police officer with the Cedar Springs Police

Department. He also testified that he interviewed the defendant and found

inconsistencies in his version of events.

[Defense Witness Corey] Nelson was a co-worker and friend of the defendant.

He did not know Ms. Fitzgerald, but remembered her because she was giving backrubs and was a masseuse. He witnessed Ms. Fitzgerald and Ms. Edwards spinning

around and they both “got a little crazy.” He then witnessed Ms. Fitzgerald go into

the bathroom with Matt Cruz who was another person present at the party. They

remained in the bathroom for approximately 15 - 20 minutes.

Def.-Appellant’s Br. on Appeal, in People v. Short, No. 266368 (Mich. Ct. App.), at 6-9 (citations to

transcript omitted).

C. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by the

provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst

other amendments, the AEDPA amended the substantive standards for granting habeas relief by

providing:

(d) 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.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

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Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “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, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S.

at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to

‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

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

U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. However,

“[i]n order for a federal court to 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.

By its terms, § 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.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the Supreme]

Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the holdings, as

opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.’ In

other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or

principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v.

Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

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In rejecting petitioner’s claims, the Michigan Court of Appeals reviewed them only for plain

error, noting that petitioner had not preserved the claims for appeal by objecting at trial. See Short, 2007

WL 3119401, at *3. Based on this, respondent argues that petitioner’s claims are procedurally defaulted.

Although this is likely true, petitioner argues that counsel was ineffective for failing to object, an

argument which if correct would provide cause for petitioner’s procedural default. Because the court

must assess the underlying merits of the claims to assess whether counsel was ineffective, I proceed

directly to the merits.

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benchmark for habeas review of a state court decision, the standard set forth in § 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, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D. Mich.

2002) (Tarnow, J.).

D. Prosecutorial Misconduct (Claim I)

Petitioner first contends that the prosecutor committed misconduct by allowing Pierce to give

false testimony without correcting that testimony and by arguing facts not in evidence. The Court

should conclude that petitioner is not entitled to habeas relief on this claim.2

1. Clearly Established Law

For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough that

the prosecutor’s conduct was “undesirable or even universally condemned.” Darden v. Wainwright,

477 U.S. 168, 181 (1986). Rather, the misconduct must have “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.” Id. (internal quotation omitted). “[T]he

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touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.”

Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the prosecutor’s conduct was so

egregious as to warrant habeas relief, a court should consider “the degree to which the remarks

complained of have a tendency to mislead the jury and to prejudice the accused; whether they are

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

strength of the competent proof to establish the guilt of the accused.” Pritchett v. Pitcher, 117 F.3d

959, 964 (6th Cir. 1997) (internal quotations and citations omitted). In sum, to constitute a denial of

due process the prosecutor’s conduct must be “so pronounced and persistent that it permeates the

entire atmosphere of the trial.” Id. (internal quotation omitted).

It is well established that “a conviction obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103

(1976) (footnote omitted); accord Napue v. Illinois, 360 U.S. 264, 271 (1959). This is true whether

the false testimony goes to the defendant’s guilt or to a witness’s credibility, see Napue, 360 U.S. at

270, and it matters not whether the prosecution directly elicits the false testimony or merely allows

false testimony to go uncorrected, see id. at 269. It is equally well established, however, that

petitioner bears the burden of proving that the testimony amounted to perjury. As the Fourth Circuit

has explained, “[a] defendant seeking to vacate a conviction based on perjured testimony must show

that the testimony was, indeed, perjured. Mere inconsistencies in testimony by government witnesses

do not establish the government’s knowing use of false testimony.” United States v. Griley, 814 F.2d

967, 971 (4th Cir. 1987); accord United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990) (“[N]ot

every testimonial inconsistency that goes uncorrected by the government establishes a constitutional

violation.”); Horton v. United States, 983 F. Supp. 650, 657 (E.D. Va. 1997); United States v. Hearst,

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424 F. Supp. 307, 318 (N.D. Cal. 1976). Thus, to succeed on this claim petitioner must show that:

(1) the prosecutor presented evidence which was false; (2) the prosecutor knew of the falsity; and (3)

the evidence was material. See Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1999). As the Verser court

further explained, to establish a constitutional violation petitioner must show that the “inconsistent

testimony amounted to perjury, ‘the willful assertion under oath of a false, material fact.’” Verser, 916

F.2d at 1271 (quoting Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984)); see also, Horton, 983

F. Supp. at 657 (quoting United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995)) (in order to

establish Napue violation defendant must show that the government knowingly used perjured

testimony, perjury being “false testimony concerning a material matter, ‘given with the willful intent

to deceive (rather than as a result of, say, confusion, mistake, or faulty memory.’”). In other words,

petitioner must show that the testimony was “indisputably false.” Byrd v. Collins, 209 F.3d 486, 817-

18 (6th Cir. 2000).

2. Analysis

a. False Testimony

Petitioner contends that Pierce, the jailhouse informant, testified falsely in two respects. First,

Pierce testified at trial that petitioner told him that he was worried about another CSC charge. In

response to a question about petitioner telling Pierce that the victim had defecated on the sheets,

Pierce stated: “He said he was sure – he said he wasn’t worried about the case, he was sure he could

beat it . . . . The only thing that he’s got to worry about goin’ against him is the other CSC that’s on

his file.” Trial Tr., dated 7/7/05, at 82. The prosecutor immediately moved on to another line of

inquiry, and neither the prosecutor or any other witness again mentioned an additional CSC charge

against petitioner. It is undisputed that petitioner did not have any other pending CSC charge or

conviction. The Michigan Court of Appeals essentially concluded that this evidence was not material,

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I note that it is not clear that the Michigan Court of Appeals was correct in stating that “[i]t is

apparent from the record that the prosecutor knew that the cellmate took psychotropic medications in

jail.” Short, 2007 WL 3119401, at *3. To be sure, defense counsel indicated that, from his review of the

records, it appeared that Pierce had been “prescribed psychotropic medication.” Trial Tr., dated

7/6/05, at 10. The prosecutor’s response to counsel’s argument regarding Pierce’s suicidal ideation,

however, suggests that the prosecutor did not know this fact. See id. at 12 (emphasis added) (“I’d agree

10

reasoning that “[i]t is unlikely . . . that in light of all the other evidence presented against defendant,

that this isolated comment tipped the scale in favor of his conviction.” Short, 2007 WL 3119401, at

*3. This determination was reasonable. As noted above, Pierce’s statement was an isolated mention

of a pending CSC charge with no elaboration, and with no details provided. Further, the matter was

not mentioned again throughout the trial. In light of the victim’s testimony, there is not a “reasonable

likelihood” that Pierce’s brief statement “affected the judgment of the jury.” Giglio, 405 U.S. at 154

(quoting Napue, 360 U.S. at 271). At a minimum, the Michigan Court of Appeals was not

unreasonable in so concluding.

Second, petitioner contends that Pierce committed perjury when, upon questioning from the

prosecutor, he testified that while he was detained at the Kent County Jail with petitioner he was not

taking any medications. See Trial Tr., dated 7/7/05, at 78. On the contrary, petitioner contends,

Pierce was taking psychotropic medications at that time. This fact, however, was well known to

counsel. Prior to trial, the court discussed with the prosecutor and defense counsel whether the

defense would be permitted to inquire of Pierce whether he had any suicidal ideation during his

detention in the Kent County Jail. During this discussion, counsel indicated that “[i]n looking over

the records that I’ve been provided concerning his stay at the Kent County Correctional Facility, Mr.

Pierce was prescribed psychotropic medication . . . .” Trial Tr., dated 7/6/05, at 10. Both the

prosecutor and the court agreed that the witness could be questioned regarding whether he was on any

medications at the time that may have affected his perception or memory. See id. at 12-13.3

 Thus,

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with Mr. Stevenson that if he was on meds of some sort, that would be relevant to his state of mind

certainly.”). Further, counsel did not state what medications the records showed Pierce as having been

prescribed. The jail records for Pierce attached to petitioner’s application for leave to appeal in the

Michigan Supreme Court state simply that Pierce was prescribed “Psyc medication.” This could refer

to any psychiatric medication, including a whole host of mild medications that would not have affected

Pierce’s memory or perception. Thus, while it is clear that Pierce lied in stating that he had been

prescribed no psychiatric medications, the record falls far short of establishing either that Pierce was

taking a psychotropic medication that would have affected his perception and recall, or that the

prosecutor knew that Pierce was taking such medications. 

4

In fact, counsel’s failure to do so is part of petitioner’s ineffective assistance of counsel claim.

11

defense counsel was well aware that Pierce did not testify truthfully concerning his medications, and

was prepared if he so desired to counter that testimony. Counsel chose, however, not to do so.4

“[T]here is no violation of due process resulting from prosecutorial non-disclosure of false testimony

if defense counsel is aware of it and fails to object.” Beltran v. Cockrell, 294 F.3d 730, 736 (5th Cir.

2002) (quotation omitted); see also, United States v. Mangual-Garcia, 505 F.3d 1, 10-11 (1st Cir.

2007); Routly v. Singletary, 33 F.3d 1279, 1286 (11th Cir. 1994). Because defense counsel was well

aware of the medications and medical treatment Pierce had received at the Kent County Jail, petitioner

cannot show that the prosecutor’s failure to correct Pierce’s testimony violated his right to due

process. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on

these claims. 

b. Arguing Facts Not in Evidence

Petitioner also contends that the prosecutor committed misconduct by arguing that petitioner

had drugged the victim with the date-rape drug GHB. During opening statement, the prosecutor

explained the element of the crime that required him to show that the victim was physically helpless

or mentally incapacitated:

And there’s a lot of definitions for that. In other words, was she too intoxicated, under

some kind of drug that made her susceptible to what he did to her. You’ll hear

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evidence that that did happen. You’ll also hear evidence that earlier in the evening,

she and April Edwards, an acquaintance of hers, I don’t know why, they were tussling

around, rolling around, whatever, and Ms. Fitzgerald did strike her head and she was

a little dizzy from that. But a lot of her behavior, the evidence will show, that even

though she had at least seven drinks her behavior was even a little more dizzy or

clutzy like there may have been something else that she ingested unknowingly that

went along with this. And we don’t know because if it would have been a GHB or

something, evidence will show that’s out of the system within 12 hours and they can’t

test for it.

Trial Tr., dated 7/6/05, at 96. During the cross examination of Officer Jason Schaefer, defense

counsel asked Schaefer whether he had ever heard of Visine being used as a date-rape drug. Schaefer

responded that he had not. See id., dated 7/7/05, at 149. On redirect examination, the prosecutor

asked Schaefer whether he had ever heard of someone putting GHB. or some other drug in a Visine

container; Schaefer responded that he had not, but that he was familiar with people putting drugs in

normal containers to hide their true identity. See id. at 149-50. Finally, during closing argument, the

prosecutor responded to petitioner’s evidence suggesting that the victim had gone into the bathroom

with other men:

Now, Ms. Fitzgerald testified she didn’t go into the bathroom, didn’t remember it, or

didn’t go in it. Use your own memories on that. But even if she did, how does it

negate what he did to her later on. I mean, if this is what the defense is gonna put up

that she was in the bathroom with another guy so this is gonna happen, she was in his

bedroom, in the bed, she was out of it. Whether from alcohol, from falling on her

head, or as Mr. Pierce indicated, the defendant told him he put something in her beer.

We’ve all heard of GHB and drugs, we’ve–there was no tests done for that, no one

knew. According to Mr. Pierce, that’s what the defendant told him out at the jail.

Id., dated 7/8/05, at 23.

Petitioner contends that these comments were improper because there was no evidence

presented at trial that he gave GHB to the victim. The Michigan Court of Appeals rejected this claim,

reasoning that “there were facts in evidence that defendant drugged the victim,” and thus “[t]he

prosecutor’s argument . . . constituted proper argument because suggesting that defendant used GHB

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is a reasonable inference from the testimony that defendant drugged the victim.” Short, 2007 WL

3119401, at *4. This determination was reasonable. As the court of appeals correctly observed,

although there was no direct evidence that petitioner gave the victim GHB, Pierce testified that

petitioner told him that he had drugged the victim with Visine. There was also testimony from the

victim that petitioner had given her a beer, and that she had become disoriented and dizzy at some

point in the evening. Thus, it was a fair inference from the evidence that the victim had been drugged

with something. And the prosecutor did not argue that the victim had in fact been drugged with GHB;

he merely suggested that it was possible but explicitly stated “we don’t know.” In light of these

qualifications included by the prosecutor in his argument, “the jurors would know that these

comments were inferences, and they would not be confused into believing that these comments were

factual evidence.” Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). Further, as the prosecutor

recognized in his closing argument, it was ultimately irrelevant whether petitioner had drugged the

victim. If the victim was mentally or physically incapacitated for any reason–because she had been

drugged, because she was drunk, or because of hitting her head when she fell to the floor–petitioner

could be found guilty regardless of whether he was the cause of her incapacitation. See People v. Lall,

No. 273165, 2008 WL 2468467, at *5 (Mich. Ct. App. June 19, 2008). In these circumstances, the

Michigan Court of Appeals’s conclusion that the comments were proper was a reasonable one.

Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.

E. Ineffective Assistance of Counsel (Claim II)

Petitioner next contends that counsel was ineffective in a number of respects. Specifically,

petitioner contends that counsel was ineffective for: (1) failing to object to the prosecutor’s

misconduct; (2) failing to impeach Pierce with evidence that he was taking medications despite his

testimony to the contrary; and (3) failing to question the nurse who examined the victim about the

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dangers of mixing alcohol and antidepressants. The Court should conclude that petitioner is not

entitled to habeas relief on these claims.

1. Clearly Established Law

The Sixth Amendment right to counsel and the right to effective assistance of counsel protect

the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s errors were so

serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. These two

components are mixed questions of law and fact. Id. at 698. Further, “[t]here is no reason for a court

deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id. With

respect to the performance prong of the Strickland test, a strong presumption exists that counsel’s

behavior lies within the wide range of reasonable professional assistance. See id. at 689; see also

O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). “[D]efendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689 (citation omitted). “[T]he 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.” Id. at 690. With respect to the prejudice prong, the

reviewing court must determine, based on the totality of the evidence before the factfinder, “whether

there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695. It is petitioner’s burden to establish the elements of his ineffective

assistance of counsel claim. See United States v. Pierce, 63 F.3d 818, 833 (6th Cir. 1995) (petitioner

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bears the burden of establishing counsel’s ineffectiveness); Lewis v. Alexander, 11 F.3d 1349, 1352

(6th Cir. 1993) (same).

As the Supreme Court has recently explained, Strickland establishes a high burden that is

difficult to meet, made more so when the deference required by § 2254(d)(1) is applied to review a

state court’s application of Strickland:

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,

559 U.S. ----, ----, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An

ineffective-assistance claim can function as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial, and so the Strickland standard must

be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity

of the very adversary process the right to counsel is meant to serve. Strickland, 466

U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging

counsel’s representation is a most deferential one. Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the judge. It is “all too

tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.”

Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,

152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993). The question is whether an attorney’s representation amounted

to incompetence under “prevailing professional norms,” not whether it deviated from

best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and §

2254(d) are both “highly deferential,” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy,

521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two

apply in tandem, review is “doubly” so, Knowles, 556 U.S., at ----, 129 S.Ct. at 1420.

The Strickland standard is a general one, so the range of reasonable applications is

substantial. 556 U.S., at ----, 129 S.Ct. at 1420 . Federal habeas courts must guard

against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.

Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

2. Analysis

a. Failure to Object to Prosecutorial Misconduct

Petitioner first contends that counsel was ineffective for failing to object to the prosecutor’s

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misconduct. As explained above, however, the actions of the prosecutor to which petitioner contends

an objection should have been made did not constitute misconduct, either because the comments were

proper or because they were not prejudicial. Thus, any objection 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, the Court should conclude that petitioner

is not entitled to habeas relief on this claim.

b. Failure to Impeach Pierce

Petitioner next contends that counsel was ineffective for failing to impeach Pierce with

evidence that he was taking psychotropic medication at the time petitioner confessed to him. The

Court should conclude that petitioner is not entitled to habeas relief on this claim.

 “[C]ourts generally entrust cross-examination techniques, like other matters of trial strategy,

to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002)

(Friedman, J.); see Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001); Dows v. Wood, 211 F.3d

480, 489 (9th Cir. 2000). “Impeachment strategy is a matter of trial tactics, and tactical decisions are

not ineffective assistance of counsel simply because in retrospect better tactics may have been

available.” Dell, 194 F. Supp. 2d at 1219; accord Millender v. Adams, 187 F. Supp. 2d 852, 872 (E.D.

Mich. 2002) (Rosen, J.). The mere fact that other avenues of impeachment may have existed does not

render counsel ineffective; counsel need not “develop every bit of testimony through all available

inconsistent statements.” Poyner v. Iowa, 990 F.2d 435, 438 (8th Cir. 1993); see also, Waters v.

Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (internal quotation omitted) (counsel not ineffective

even though “other testimony might have been elicited from those who testified.”); United States v.

Kozinski, 16 F.3d 795, 817 (7th Cir. 1994) (counsel not ineffective where counsel could have elicited

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additional impeachment information on cross-examination).

Here, as explained above in connection with petitioner’s prosecutorial misconduct claim, the

record does not support the conclusion that Pierce was taking psychotropic medication that affected

his ability to perceive and recall the events to which he testified. At the most, then, counsel’s

impeachment on this issue would have provided some additional impeachment of Pierce’s general

credibility, because he testified that he had not taken any such medications. Counsel, however,

significantly impeached Pierce’s testimony in other respects. For example, counsel elicited from

Pierce that he did not report petitioner’s confession until a month after he was released, see Trial Tr.,

dated 7/7/05; that petitioner implausibly confessed only to Pierce, whom he had just met, and to no

one else, see id. at 88-89; and that Pierce had a vendetta against people charged with sexual assault,

see id. at 89. The record shows that counsel’s cross-examination was more than adequate to meet the

Sixth Amendment standard for effective assistance of counsel. See, e.g., Sherron v. Norris, 69 F.3d

285, 290 (8th Cir. 1995); United States v. McKinney, 954 F.2d 471, 481 (7th Cir. 1992); Garcia v.

Kuhlmann, 897 F. Supp. 728, 730 (S.D.N.Y. 1995); Wolfe v. United States, 894 F. Supp. 1310, 1317

(D. Minn. 1995), aff’d, 92 F.3d 1190 (8th Cir. 1996). That one particular avenue was not fully

explored does not support a finding that counsel’s performance was deficient. See Millender, 187 F.

Supp. 2d at 872; Johnson v. Hofbauer, 159 F. Supp. 2d 582, 607 (E.D. Mich. 2001) (Tarnow, J.).

Further, in light of the fact that Pierce was already extensively impeached, and the fact that this

questioning would not have impeached the testimony of the victim, there is not a reasonable

probability that the result of the proceeding would have been different had counsel pursued this line

of impeachment. Accordingly, the Court should conclude that petitioner is not entitled to habeas

relief on this claim.

c. Failure to Question Nurse

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Petitioner next claims that counsel was ineffective for failing to question the nurse who

examined the victim about the dangers of mixing alcohol and an antidepressant drug such as Paxil,

which petitioner contends was responsible for the victim’s condition on the night of the assault. This

claim fails for two reasons. First, counsel in fact attempted to question the nurse regarding this

matter, but the nurse was unable to answer because the matter was outside her area of expertise. See

Trial Tr., dated 7/7/05, at 114-15. Second, petitioner cannot show that he was prejudiced by the

absence of this evidence. As noted above, the only relevant factors were whether the victim was

physically or mentally incapacitated and whether petitioner knew or had reason to know of her

incapacitation. The cause of the incapacitation was irrelevant. Thus, even if as petitioner contends

the victim’s own act of drinking excessively while taking an antidepressant was the cause of her

incapacitation, this fact would have provided no defense to the charges. Accordingly, the Court

should conclude that petitioner is not entitled to habeas relief on this claim.

F. Newly Discovered Evidence (Claim III)

Finally, petitioner contends that he is entitled to habeas relief on the basis of newly discovered

evidence of his innocence. The Court should conclude that petitioner is not entitled to habeas relief

on this claim.

A writ of habeas corpus may be granted “only on the ground that [the petitioner] is in custody

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus,

the existence of new evidence, standing alone, is not a basis for granting the writ. As the Supreme

Court has explained: “Claims of actual innocence based on newly discovered evidence have never

been held to state a ground for federal habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993);

see also, id. at 404 (claim of actual innocence is “not itself a constitutional claim, but instead a

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gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred

constitutional claim considered on the merits.”) (emphasis added); Schlup v. Delo, 513 U.S. 298, 314-

16 (distinguishing, in part, Herrera because in this case the petitioner “accompanie[d] his claim of

innocence with an assertion of constitutional error at trial.”); Townsend v. Sain, 372 U.S. 293, 317

(1963) (“Of course, such evidence must bear upon the constitutionality of the applicant’s detention;

the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a

ground for relief on federal habeas corpus.”), overruled in part on other grounds, Keeney v. TamayoReyes, 504 U.S. 1 (1992). Thus, the newly discovered evidence, standing alone, provides no basis for

habeas relief.

Further, petitioner’s evidence falls far short of that necessary to establish that he is innocent.

In Herrera, without elaborating further, the Court noted that even if a free-standing claim of

innocence were cognizable on habeas review, “the threshold showing for such an assumed right would

necessarily be extraordinarily high.” Herrera, 506 U.S. at 417. In Schlup, the Court elaborated on

the showing required to establish “actual innocence” for purposes of overcoming a procedural bar to

consideration of a constitutional claim. The Court explained that, to establish actual innocence, the

petitioner must “show that a constitutional violation has probably resulted in the conviction of one

who is actually innocent. To establish the requisite probability, the petitioner must show that it is

more likely than not that no reasonable juror would have convicted him in light of the new evidence.”

Schlup, 513 U.S. at 327 (internal citation and quotation omitted). Here, petitioner’s newly discovered

evidence consists of affidavits from two individuals who were detained at the Kent County Jail at the

same time as he and Pierce. These affidavits attack the credibility of Pierce. For example, Daniel

Davis avers that Pierce told him that he was “going to get” petitioner, and that at no time did

petitioner confess to Davis. See Aff. of Fact of Daniel Davis. Similarly, Craig Lobdell avers that

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petitioner at no time confessed to him, and that Pierce told him he would do whatever it takes to have

petitioner convicted. See Aff. of Fact of Craig A. Lobdell.

These affidavits are insufficient to constitute the type of new, reliable evidence of actual

innocence sufficient to satisfy Schlup. See Schlup, 513 U.S. at 324 (referring to “exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence”); Pitts v. Norris,

85 F.3d 348, 350-51 (8th Cir. 1996) (citations omitted) (“Examples of evidence which may establish

factual innocence include credible declarations of guilt by another, trustworthy eyewitness accounts,

and exculpatory scientific evidence.”). Newly discovered impeachment evidence does not provide

sufficient evidence of actual innocence to overcome a procedural bar, much less does it provide

sufficient evidence to support a free-standing innocence claim. See Calderon v. Thompson, 523 U.S.

538, 563 (1998) (newly discovered impeachment evidence, which is “a step removed from evidence

pertaining to the crime itself,” “provides no basis for finding” actual innocence); Sawyer v. Whitley,

505 U.S. 333, 349 (1992) (newly discovered impeachment evidence “will seldom, if ever,” establish

actual innocence). This is particular so here, where the newly discovered impeachment evidence does

not call into question the testimony of the victim, the principle witness against petitioner whose

testimony alone was sufficient to establish petitioner’s guilt beyond a reasonable doubt. Accordingly,

the Court should conclude that petitioner is not entitled to habeas relief on this claim.

G. Evidentiary Hearing

I also briefly note that petitioner is not entitled to an evidentiary hearing. Contemporaneous

with his habeas application, petitioner filed a motion for evidentiary hearing. I previously denied the

motion without prejudice as premature, indicating that the Court would order an evidentiary hearing

should it become necessary. In addressing whether an evidentiary hearing is appropriate in a habeas

corpus case, a court must consider two separate issues: (1) is an evidentiary hearing necessary under

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For the same reason, the Court need not consider whether an evidentiary hearing would have

any utility in light of the Supreme Court’s recent decision in Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011) (holding that, with respect to any claim adjudicated on the merits to which § 2254(d) applies, the

federal court’s review is limited to the record that was in existence at the time of the state court

decision).

21

Rule 8 of the Rules Governing Section 2254 Proceedings in United States District Courts, 28 U.S.C.

foll. § 2254; and (2) is a hearing is permitted under 28 U.S.C. § 2254(e)(2). Here, the Court need not

address whether an evidentiary hearing is permitted under § 2254(e)(2) because such a hearing is not

necessary.5

In deciding whether an evidentiary hearing is necessary under Rule 8, “courts focus on

whether a new evidentiary hearing would be meaningful, in that a new hearing would have the

potential to advance the petitioner’s claim.” Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000)

(discussing Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir. 1998)); see also, Alcorn v. Smith, 781

F.2d 58, 59-60 (6th Cir. 1986) (applying pre-AEDPA law); cf. Townsend v. Sain, 372 U.S. 293, 312-

13 (1963). As the Supreme Court has explained:

In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.

Because the deferential standards prescribed by § 2254 control whether to grant

habeas relief, a federal court must take into account those standards in deciding

whether an evidentiary hearing is appropriate.

It follows that if the record refutes the applicant’s factual allegations or

otherwise precludes habeas relief, a district court is not required to hold an evidentiary

hearing

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citations and footnote omitted).

Here, an evidentiary hearing is not necessary because petitioner’s claims can be resolved on

the record. Petitioner’s prosecutorial misconduct claims are based on acts or omissions occurring on

the record, as are his ineffective assistance of counsel claims. Further factual development of

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petitioner’s innocence claim is not appropriate because such a claim does not provide a basis for

habeas relief. Thus, an evidentiary hearing is not necessary to resolve petitioner’s claims.

H. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides that

a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues

a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that “[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). As the Sixth Circuit has noted, this language

represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S. 880 (1983),

and “[t]he AEDPA thus makes no change to the general showing required to obtain a certificate[.]”

Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack v. McDaniel,

529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a “substantial

showing” of a denial of a constitutional right, the burden on the petitioner is obviously less than the

burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “‘[a] substantial showing requires the

applicant to “demonstrate that the issues are debatable among jurists of reason; that a court could

resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement

to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v.

Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4)); accord Slack, 529

U.S. at 483-84. Although the substantive standard is the same, “[t]he new Act does, however, require

that certificates of appealability, unlike the former certificates of probable cause, specify which issues

are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C. § 2253(c)(3)).

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Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of Federal

Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not issue.” FED.

R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory committee note,

2009 amendments. In light of the new Rule 11 requirement that the Court either grant or deny the

certificate of appealability at the time of its final adverse order, I include a recommendation regarding

the certificate of appealability issue here.

2. Analysis

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the Court

should also conclude that petitioner is not entitled to a certificate of appealability, for the reasons

explained above. The record establishes that even though Pierce testified falsely in two respects, that

false testimony was not material. Further, the prosecutor’s comments were a fair inference from the

record, and thus were not improper. Thus, the resolution of petitioner’s prosecutorial misconduct

claims, and his related ineffective assistance of counsel claim, is not reasonably debatable. With

respect to petitioner’s remaining ineffective assistance of counsel claims, counsel adequately and

effectively cross-examined Pierce, and he attempted to question the nurse concerning the interaction

of alcohol and Paxil. Further, there is not a reasonable probability that additional impeachment of

Pierce would have changed the result, nor would testimony from the nurse about the dangers of

mixing alcohol and Paxil have provided any defense to the charges against petitioner. Thus, the

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resolution of these ineffective assistance of counsel claims is not reasonably debatable. Finally, it is

beyond debate that petitioner’s newly discovered evidence does not provide a basis for habeas relief,

and that in any event his new evidence falls far short of that necessary to establish his innocence.

Accordingly, the Court should deny petitioner a certificate of appealability. 

I. Conclusion

In view of the foregoing, the Court should conclude that the state courts’ resolution of

petitioner’s claims did not result in a decision which was contrary to, or which involved an

unreasonable application of, clearly established federal law. Accordingly, the Court should deny

petitioner’s application for the writ of habeas corpus. If the Court accepts this recommendation, the

Court should also deny petitioner a certificate of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

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unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 6/14/11

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on June 14, 2011.

s/Eddrey Butts 

Case Manager

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