UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD ALAN SHORT,

Petitioner, Case No. 09-12171

Honorable David M. Lawson

v. Magistrate Judge Paul J. Komives

MITCH PERRY,

Respondent.

_______________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION, OVERRULING PETITIONER’S OBJECTIONS,

DENYING PETITION FOR WRIT OF HABEAS CORPUS,

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Gerald Alan Short was convicted by a jury in the Kent County, Michigan circuit

court of third-degree criminal sexual conduct and sentenced to prison for 15 to 30 years. The victim

in the case was a woman who testified that she attended a party at the petitioner’s house after a night

of drinking at various bars, and that the petitioner had sexual intercourse with her after she had

passed out, although she awoke briefly during the sex act to protest. After his conviction was

affirmed by the Michigan appellate courts, Short filed a pro se petition for a writ of habeas corpus

in this Court under 28 U.S.C. § 2254. The case was referred to Magistrate Judge Paul J. Komives,

who filed a thorough and lengthy report recommending that the petition be denied. Judge Komives

considered the state’s argument that review of many of the petitioner’s claims were barred by the

doctrine of procedural default, but he concluded that addressing the merits was the most efficient

way to proceed. Judge Komives concluded that the petition ought to be denied on the merits and

a certificate of appealability ought to be denied. The petitioner has filed timely objections to the

report and recommendation.

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Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection

requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be

clear enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the

magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are

too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

I.

The petitioner first objects to the magistrate judge’s rejection of the petitioner’s claims of

prosecutorial misconduct. He says that testimony from a cell mate, Roy Pierce, about the

petitioner’s jailhouse confession was tainted and prejudicial, and his reference to the non-existent

criminal charge pending against the petitioner undermined his right to a fair trial. 

The petitioner takes issue with the magistrate’s conclusion that Pierce’s false statement about

petitioner having another CSC charge did not likely lead to conviction. He says that Pierce’s

testimony in fact had a prejudicial effect that “sealed [his] fate,” evidenced by the looks on jurors’

faces and their putting down their note pads and not making another note for the remainder of the

trial. The petitioner argues that his case is indistinguishable from Washington v. Hofbauer, 228 F.3d

689 (6th Cir. 2000), in which the court held, among other things, that the prosecutor engaged in

misconduct by improperly emphasizing evidence of the defendant’s bad character during closing

argument, resulting in a violation of the defendant’s due process rights.

Contrary to the petitioner’s assertion, the magistrate judge did not find that Pierce’s

erroneous testimony was immaterial. Rather, the magistrate judge concluded that the state court’s

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finding to that effect was not unreasonable. This Court must agree with the latter conclusion. 

“[N]ot every testimonial inconsistency that goes uncorrected by the government establishes a

constitutional violation.” United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990). Therefore,

to establish relief on his false testimony claim, the petitioner “must show (1) that the prosecution

presented false testimony (2) that the prosecution knew was false, and (3) that was material.”

Abdus-Samad v. Bell, 420 F.3d 614, 625-26 (6th Cir. 2005). “Moreover, the [petitioner] must show

that the statement in question was ‘indisputably false,’ rather than merely misleading.” Byrd v.

Collins, 209 F.3d 486, 517 (6th Cir. 2000) (quoting United States v. Lochmondy, 890 F.2d 817, 823

(6th Cir. 1989)).

The state court’s finding that the comment was isolated and unlikely affected the outcome

of the case is entitled to great deference. The AEDPA thus imposes a highly deferential standard

for evaluating state-court rulings, and demands that state-court decisions be “given the benefit of

the doubt.” Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010). The Sixth Circuit observed

recently that “[t]his is a very high standard, which the [Supreme] Court freely acknowledges.” Peak

v. Webb, 673 F.3d 465, 472 (6th Cir. 2012). The Court agrees with the magistrate judge’s

conclusion on this issue.

The petitioner objects to the magistrate judge’s disposal of Pierce’s testimony that he was

not taking medications while incarcerated. However, the magistrate judge correctly pointed out that

no constitutional violation occurred because the petitioner’s trial counsel knew that Pierce in fact

was taking medication, and his testimony to the contrary did not violate due process.

Next, the petitioner objects to the magistrate judge’s finding that it was reasonable to infer

from the testimony that the petitioner drugged the victim with GHB, a known date-rape drug, and

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therefore the prosecutor’s argument did not amount to misconduct. Once again, “[c]laims of

prosecutorial misconduct are reviewed deferentially on habeas review.” Millender v. Adams, 376

F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)).

Prosecutorial misconduct will form the basis for a new trial and habeas relief only if the alleged

misconduct “‘so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). “To constitute a denial of due process, the misconduct must be ‘so

pronounced and persistent that it permeates the entire atmosphere of the trial.” Byrd, 209 F.3d at

529-30 (quoting Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)). The magistrate judge

identified evidence in the record that supported the inference urged by the prosecutor. The Court

agrees with the magistrate judge’s conclusions that no constitutional violation resulted from the

argument.

II.

The petitioner next objects to the magistrate judge’s application of the Strickland standard

to his ineffective assistance of counsel claims. He says that defense counsel’s failure to object to

Pierce’s false testimony should be found to amount to a Sixth Amendment violation. However, it

appears that Pierce’s statement was spontaneous and there was no time to object. The decision to

leave the comment be — isolated as it was — is a legitimate strategic choice so as not to emphasize

the harm. The state court thought so, and that decision cannot be second-guessed. “Surmounting

Strickland’s high bar is never an easy task. . . . 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.” Harrington v. Richter, --- U.S. ---, ---, 131 S. Ct. 770, 788

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(2011) (citations and internal quotation marks omitted). No constitutional violation resulted from

trial counsel’s decision not to object.

The same must be said about trial counsel’s decision not to impeach Pierce on his use of

medications, and his decision not to question the nurse about the combined effects of Paxil and

Alcohol. Those decisions are relegated to the category of trial strategy, not deficient performance.

The petitioner objects to the magistrate judge’s finding that the petitioner’s newly discovered

evidence does not met the Schlup standard to establish his innocence. The petitioner argues that a

reasonable jury would have reasonable doubt of petitioner’s guilt if it were to view the entire case

along with the newly produced affidavits. The Court finds that the magistrate judge correctly

applied the applicable law to that issue, and the Court agrees with his conclusion.

III.

The petitioner also objects to the magistrate judge’s finding that an evidentiary hearing is

not necessary. The petitioner argues that a hearing is needed to address the issues of ineffective

assistance of counsel and prosecutorial misconduct. The newly discovered evidence, the petitioner

claims, could result in a remand for a new trial because the affidavits suggest that Pierce had

targeted the petitioner and planned to perjure himself at the petitioner’s trial. 

The Court disagrees. “Under AEDPA, evidentiary hearings are not mandatory.” Johnson

v. Mitchell, 585 F.3d 923, 934 (6th Cir. 2009) (quoting Vroman v. Brigano, 346 F.3d 598, 606 (6th

Cir. 2003)); cf. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“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.”). The AEDPA permits

a habeas petitioner to introduce new evidence in federal court “only if [the petitioner] was not at

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fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions

prescribed in § 2254(e)(2) were met.” Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (citing

Williams v. Taylor, 529 U.S. 420, 431-37 (2000)); see also Garner v. Mitchell, 502 F.3d 394, 405-06

(6th Cir. 2007), rev’d on other grounds, 557 F.3d 257 (6th Cir. 2009). Section 2254(e)(2) defines

“fault” as occurring where the petitioner “has failed to develop the factual basis of a claim in State

court proceedings.” 28 U.S.C. § 2254(e)(2). The Supreme Court has explained that “a failure to

develop the factual basis of a claim is not established unless there is lack of diligence, or some

greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432; see

also Ivory v. Jackson, 509 F.3d 284, 297-98 (6th Cir. 2007). “Diligence” requires “a reasonable

attempt, in light of the information available at the time, to investigate and pursue claims in state

court.” Williams, 529 U.S. at 435.

The petitioner made no formal request to the state courts for an evidentiary hearing to

develop his claims. The Court agrees with the magistrate judge that the issues raised in the petition

can be resolved on the existing record. The remainder of the petitioner’s objection on this issue

simply disputes the correctness of the magistrate judge’s findings. The Court sees no merit to the

arguments; therefore, the objections are overruled.

IV.

The Court agrees with the magistrate judge’s statements of the law and his analysis. The

petitioner’s objections do not have merit. The magistrate judge correctly concluded that the

petitioner is not in custody in violation of the Constitution or laws of the United States. 

Accordingly, it is ORDERED that the petitioner’s amended objections to the magistrate

judge’s Report and Recommendation [dkt. #20] are OVERRULED.

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 It is further ORDERED that the Report and Recommendation [dkt #17] is ADOPTED.

It is further ORDERED that the petition for a writ of habeas corpus is DENIED.

It is further ORDERED that a certificate of appealability is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: August 31, 2012

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 31, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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