UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IJOMA RAYMOND,

Petitioner,

v.

MILLICENT WARREN,

Respondent.

 /

Case No. 09-13648

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

On September 15, 2009, Ijoma Raymond (“Petitioner”), a state prisoner currently

incarcerated at the Huron Valley Women’s Correctional Facility in Ypsilanti, Michigan,

filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner

challenges her conviction for possession with intent to deliver 650 or more grams of

heroin, in violation of Michigan Compiled Laws § 333.7401(2)(a)(i). For the reasons

stated below, the Court denies the petition.

I. Factual and Procedural Background

Petitioner was convicted of the above offense following a jury trial in Oakland

County Circuit Court. This Court recites verbatim the relevant facts relied upon by the

Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28

U.S.C. § 2254(e)(1).

On July 27, 2001, the Oakland County Macomb Interdiction Team (“OMIT”),

a multi-jurisdictional FBI drug unit, conducted surveillance of defendant and

codefendant Peter Emeka Nwankwo, after receiving information that the two

may be involved drug trafficking. During their surveillance, OMIT officers

observed that codefendant Nwankwo was pulled over by a Southfield police

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officer for erratic driving. The vehicle was registered to defendant.

Codefendant Nwankwo was arrested for failure to produce a valid driver’s

license. A subsequent search of the vehicle uncovered a package of heroin.

Sergeant Terrence Mekoski, the OMIT leader, testified that the OMIT team

went to defendant’s motel room because they knew the car containing the

heroin was registered in her name and that the two defendants were traveling

together. After identifying themselves as police officers, Sergeant Mekoski

stated that defendant opened the door and gave them permission to enter. At

that point, Sergeant Mekoski claimed that he explained to defendant that

codefendant Nwankwo had been arrested and that heroin was discovered in the

car.

Sergeant Mekoski testified that defendant granted them oral and written

permission to search her motel room for narcotics, drug paraphernalia, and drug

proceeds. During the search, Detective David McNealy, III opened two

children’s stuffed animals and uncovered several packets containing a

substance suspected to be heroin. Sergeant Mekoski also discovered a plastic

“baby powder container” containing heroin. Nearly $2,500 was recovered

from underneath the lining of defendant’s purse. Defendant was placed under

arrest.

Defendant waived her Miranda rights and informed Sergeant Mekoski that she,

codefendant Nwankwo, and two other people, “met up” in a Chicago motel

room. Defendant explained that she and codefendant Nwankwo were given a

kilogram of heroin to transport to Michigan to sell. Sergeant Mekoski testified

that defendant initially indicated that codefendant Nwankwo was responsible

for selling the heroin and collecting the money, while she would simply wait in

the motel room for him to return to drop off the proceeds and collect more

heroin. She maintained that the two other Chicago parties owned the heroin. 

According to Sergeant Mekoski, defendant later admitted that she was the

actual connection to the heroin. She stated that she accepted codefendant

Nwankwo’'s offer to sell the heroin on the street because she needed money for

medical bills.

Codefendant Nwankwo was called by the prosecution and testified in

defendant’s case. He denied that he was involved in selling heroin, but

admitted that he planned to introduce defendant to a person to whom she could

sell her heroin.

People v. Raymond, No. 241601, 2004 WL 94099, at *1 (Mich. Ct. App. Jan. 20, 2004)

(per curiam) (footnote and citation omitted). 

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 Petitioner subsequently filed a second motion for relief from judgment, which was

denied on the ground that Michigan Court Rule 6.502(G) bars the filing of successive

motions for relief from judgment. Because Petitioner does not raise in this petition the

claim that she raised in her second motion for relief from judgment, the Court will not cite

these decisions. 

3

Petitioner’s conviction was affirmed on appeal. Id., lv. den. 470 Mich. 887, 682

N.W.2d 94 (Mich. 2004). Petitioner then filed an application for writ of habeas corpus,

which this Court dismissed without prejudice because it contained claims that had not been

exhausted with the state courts. Raymond v. Davis, No. 05-72577, 2006 WL 903610 (E.D.

Mich. Apr. 7, 2006).

Petitioner filed a post-conviction motion for relief from judgment pursuant to

Michigan Court Rule 6.500, et. seq., which the trial court denied. People v. Raymond,

2001-179885 (Oakland County Circuit Court, July 31, 2006). The Michigan appellate

courts denied Petitioner leave to appeal. People v. Raymond, No. 279447 (Mich. Ct. App.

Feb. 19, 2008), lv. den. 482 Mich. 973, 754 N.W.2d 899 (Mich. 2008).1

Petitioner filed the instant petition for writ of habeas corpus, seeking relief on the

following grounds:

I. The trial court violated the Petitioner’s Fourth Amendment right to

protection against unreasonable search and seizure by refusing to suppress the

evidence which the police obtained prior to Petitioner’s arrest, without a

warrant, without probable cause to be where they were: in a motel room where

Petitioner did not consent to the police entering the room and was illegally

detained.

A. In reviewing the trial court’s decision to deny the Petitioner’s motion to

suppress the evidence, the Michigan Court of Appeals’ decision was based on

an unreasonable determination in light of the evidence relied on in the trial

court’s misapplication of established federal law as determined by the United

States Supreme Court. 

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B. The Petitioner was denied her Sixth Amendment right to the effective

assistance of appellate counsel on her direct appeal when appellate counsel

failed to cite to the ineffective assistance of trial counsel for his failure to

properly pursue and present to the trial [court] Petitioner’s co-defendant[’s

seizure] which was directly and causally connected to the illegal entry,

detention, and search within the Petitioner’s motel room.

II. Trial counsel’s failure to investigate Petitioner’s signature on the consent to

search form, failure to object to lack of notice of the testimony of her codefendant and failure to request a cautionary instruction regarding accomplice

testimony constitutes ineffective assistance of counsel under the Sixth

Amendment and requires a new trial where the errors were so substantial that

they could have changed the outcome of the trial.

A. The Michigan Court of Appeals unreasonably applied the constitutional

standard of review of ineffective assistance claims without having allowed the

Petitioner an evidentiary hearing to expand the record on the level of

unreasonableness in trial counsel’s performance.

B. The Michigan Court of Appeals’ decision on this claim further bolsters the

Petitioner’s first argument of having been denied the right to the effective

assistance of appellate counsel; for failing to cite to the ineffective assistance of

trial counsel for his failure to properly pursue and present to the trial court the

facts surrounding the traffic stop of the Petitioner’s co-defendant which was

directly and causally connected to the evidence which was illegally obtained by

the police.

III. Petitioner was denied her constitutional right to confrontation because the

trial court impermissibly restricted the scope of cross-examination of

Petitioner’s alleged accomplice, concealing his bias.

A. The Michigan Court of Appeals’ decision was an unreasonable application

of clearly established federal law, as determined by the United States Supreme

Court.

II. Discussion

A. Standard of Review

Federal statute, as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), imposes the following standard of review for habeas cases: 

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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). A decision of a state court is “contrary to” clearly established federal

law if the state court arrives at a conclusion opposite to that reached by the Supreme Court

on a question of law or if the state court decides a case differently than the Supreme Court

on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06,

120 S. Ct. 1495, 1519-20 (2000). An “unreasonable application” occurs when “a state

court decision unreasonably applies the law of [the Supreme Court] to the facts of a

prisoner’s case.” Id. at 409, 120 S. Ct. at 1521. A federal habeas court may not “issue the

writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly.” Id.

at 411, 120 S. Ct. at 1522. 

The Supreme Court has explained that “[a] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003). 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) (quoting Lindh v. Murphy, 521 U.S. 320, 333

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n.7, 117 S. Ct. 2059, 2067 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24, 123 S. Ct.

357, 360 (2002) (per curiam)). “A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington v. Richter, --- U.S. ----, 131 S. Ct.

770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140,

2149 (2004)). “[E]ven a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. “[I]f this standard is difficult to meet, that is because it

was meant to be.” Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a

‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute

for ordinary error correction through appeal.” Id. (citing Jackson v. Virginia, 443 U.S.

307, 332 n.5, 99 S. Ct. 2781, 2796 n.5 (1979) (Stevens, J., concurring in judgment)). 

“[R]eadiness to attribute error [to a state court] is inconsistent with the presumption that

state courts know and follow the law.” Woodford, 537 U.S. at 24, 123 S. Ct. at 360. 

Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to

show that the state court’s rejection of his claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.

B. Statute of Limitations

Respondent argues that the petition should be dismissed as untimely because

Petitioner failed to comply with the statute of limitations found in 28 U.S.C. § 2244(d)(1)

or the tolling provisions of this Court’s order dismissing the first habeas petition without

prejudice. This Court’s order required Petitioner to file her motion for relief from

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judgment within sixty days and return to this Court within sixty days of exhausting her

claims in state court. Petitioner contends that her petition was timely filed. She claims

that she filed her motion for relief from judgment with the state court within sixty days of

this Court’s order. Petitioner further claims that she did not receive the Michigan Supreme

Court’s September 9, 2008 decision until almost ten months later on July 2, 2009 due to

problems that she experienced with receiving her legal mail in the prison mail room. 

Although the issue of whether a claim is procedurally barred should ordinarily be

resolved first, “judicial economy sometimes dictates reaching the merits [of a claim or

claims] if the merits are easily resolvable against a petitioner while the procedural bar

issues are complicated.” Barrett v. Acevedo, 169 F. 3d 1155, 1162 (8th Cir. 1999) (citing

Lambrix v. Singletary, 520 U.S. 518, 524-25, 117 S. Ct. 1517, 1523 (1997)). Because the

statute of limitations does not constitute a jurisdictional bar to habeas review, a federal

court may, in the interest of judicial economy, proceed to the merits of a habeas petition.

Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 n.2 (6th Cir. 2006). Thus, the

Court need not resolve the dispute over the timeliness of the petition. Assuming without

deciding that the current petition was timely, the Court concludes for the reasons stated

below that the petition fails on its merits.

C. Petitioner’s Fourth Amendment Claim

Petitioner first argues that the state court violated her Fourth Amendment rights by

failing to suppress evidence that the police had seized from her motel room without a

warrant and without her consent. A federal habeas review of a petitioner’s arrest or search

by state police is barred where the state has provided a full and fair opportunity to litigate

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an illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95, 96

S. Ct. 3037, 3052-53 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). 

For such an opportunity to have existed, the state must have provided, in the abstract, a

mechanism by which the petitioner could raise the claim, and presentation of the claim

must not have been frustrated by a failure of that mechanism. Riley v. Gray, 674 F.2d 522,

526 (6th Cir. 1982). “The relevant inquiry is whether a habeas petitioner had an

opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth

Amendment claim was correctly decided.” Wynne v. Renico, 279 F. Supp. 2d 866, 892

(E.D. Mich. 2003); rev’d on other grounds 606 F.3d 867 (6th Cir. 2010). Indeed, under

Stone, the correctness of a state court’s conclusions regarding a Fourth Amendment claim

“is simply irrelevant.” Brown v. Berghuis, 638 F. Supp. 2d 795, 812 (E.D. Mich. 2009). 

“The courts that have considered the matter ‘have consistently held that an erroneous

determination of a habeas petitioner’s Fourth Amendment claim does not overcome the

Stone v. Powell bar.’” Id. (quoting Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986)). 

Thus, “[a]n argument directed solely at the correctness of the state court decision [on a

Fourth Amendment claim] ‘goes not to the fullness and fairness of his opportunity to

litigate the claim[s], but to the correctness of the state court resolution, an issue which

Stone v. Powell makes irrelevant.’” Id. at 812-13 (quoting Siripongs v. Calderon, 35 F.3d

1308, 1321 (9th Cir. 1994)). Petitioner unsuccessfully challenged the validity of the

search in state court. Accordingly, Stone bars her Fourth Amendment claim.

D. Ineffective Assistance of Counsel Claims

Petitioner claims that she was denied the effective assistance of trial and appellate

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counsel. To show that she was denied the effective assistance of counsel under federal

constitutional standards, Petitioner must satisfy a two prong test. First, she must show

that, considering all of the circumstances, counsel’s performance was so deficient that the

attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In so doing,

Petitioner must overcome a strong presumption that counsel’s behavior lies within the

wide range of reasonable professional assistance. Id. at 689, 104 S. Ct. at 2065. In other

words, Petitioner “must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at 689, 104 S. Ct. at

2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Second,

Petitioner must show that the deficient performance prejudiced her defense. Id. at 687,

104 S. Ct. at 2064. To demonstrate prejudice, Petitioner must show that “there is a

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

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. The Strickland

standard also applies to claims of ineffective assistance of appellate counsel. Whiting v.

Burt, 395 F.3d 602, 617 (6th Cir. 2005). Petitioner bears the burden of demonstrating a

reasonable probability that the result of the proceeding would have been different but for

counsel’s allegedly deficient performance. Wong v. Belmontes, --- U.S. ----, 130 S. Ct.

383, 390-91 (2009).

On habeas review, “[t]he question ‘is not whether a federal court believes the state

court’s determination’ under the Strickland standard ‘was incorrect but whether that

determination was unreasonable - a substantially higher threshold.’” Knowles v.

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Mirzayance, --- U.S. ----, 129 S. Ct. 1411, 1420 (2009) (quoting Schriro v. Landrigan, 550

U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007)). The pivotal question is whether the state

court’s application of the Strickland standard was unreasonable, not whether defense

counsel’s performance fell below the Strickland standard. Harrington, 131 S. Ct. at 785. 

“[B]ecause the Strickland standard is a general standard, a state court has even more

latitude to reasonably determine that a defendant has not satisfied that standard.” 

Knowles, 129 S. Ct. at 1420 (citing Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at

2149). Thus, a “doubly deferential judicial review” applies to Strickland claims brought

by habeas petitioners. Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S. Ct. 1, 4

(2003)). This means that on habeas review of a state court conviction, “[a] state court

must be granted a deference and latitude that are not in operation when the case involves

review under the Strickland standard itself.” Harrington, 131 S. Ct. at 785. “Surmounting

Strickland's high bar is never an easy task.” Id. at 788 (quoting Padilla v. Kentucky, ---

U.S. ----, 130 S. Ct. 1473, 1485 (2010)). Because of this doubly deferential standard, the

Supreme Court has indicated:

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.

Id. at 788. Finally, the Court is aware that reliance on the “harsh light of hindsight” to cast

doubt on a trial that took place nine years ago and a direct appeal that took place seven

years ago “is precisely what Strickland and AEDPA seek to prevent.” Id. at 789.

Petitioner claims that trial counsel was ineffective for failing to seek the suppression

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of the evidence on the ground that the police impermissibly exceeded the scope of codefendant Nwankwo’s traffic stop to justify speaking with Petitioner in order to obtain her

consent. Petitioner further contends that appellate counsel was ineffective for failing to

raise on direct appeal trial counsel’s ineffectiveness for failing to seek the suppression of

the evidence on this basis. Where counsel’s failure to litigate a Fourth Amendment claim

competently is the principal claim of ineffectiveness, a defendant seeking to demonstrate

actual prejudice must prove that his Fourth Amendment claim is meritorious and that there

is a reasonable probability that the verdict would have been different absent the excludable

evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986).

The police officers involved in this case have admitted that there was no probable

cause to search Petitioner’s motel room. The prosecutor instead argued that a warrantless

search was permissible because Petitioner consented to it. Both trial and appellate counsel

chose to challenge the legality of the search by arguing that under the circumstances of the

case, Petitioner did not freely and voluntarily consent to the search of her motel room. In

light of the fact that the police and prosecutor conceded that there was no probable cause

for the search, trial and appellate counsel both reasonably chose to focus on challenging

the validity of Petitioner’s consent.

In Cowans v. Bagley, 639 F.3d 241 (6th Cir. 2011), the Sixth Circuit addressed a

habeas petitioner’s claim that his trial counsel was ineffective for challenging the search of

the petitioner’s home on the basis that the parole officer lacked probable cause, rather than

focusing on the validity of the consent given by the petitioner’s wife to search the home. 

In rejecting the petitioner’s claim, the court observed:

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[C]ounsel’s failure to make an additional (or alternative) Fourth Amendment

objection does not fall below an objective standard of reasonableness. Often an

attorney will have several possible arguments available to her and will choose

the one she thinks is the most likely to succeed or offers the greatest possible

return for her client. Choosing the ground on which to contest a search is

classically the kind of strategic decision that attorneys are hired to make. 

Id. (citing Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066).

In the present case, in light of the fact that the police acknowledged that they lacked

probable cause to search Petitioner’s room, trial counsel and appellate counsel both made a

reasonable strategic decision to focus on the validity of Petitioner’s consent to the search. 

As the prosecutor never disputed that the police lacked probable cause for the search,

neither trial nor appellate counsel was ineffective for failing to argue that the police

exceeded the scope of their initial traffic stop of Nwankwo to justify speaking with

Petitioner to obtain her consent.

Petitioner claims that her trial counsel was ineffective for failing to obtain a

handwriting expert to challenge the authenticity of her signature on the consent form. The

Michigan Court of Appeals rejected petitioner’s claim:

We reject defendant’s claim that defense counsel was ineffective for failing to

investigate the signature on the consent form. Following trial, defendant

retained a handwriting expert to analyze and compare the signature on the

consent form to defendant’s signature on six other documents that she admitted

signing. The handwriting expert’s report concluded that the expert was “unable

to offer a conclusive opinion concerning whether [defendant] signed” the

consent form, but that the signature on the consent form shows indications that

it was not written by the same person that signed the other signature samples.

Defendant presented this report to the trial court during her motion for an

evidentiary hearing. The expert’s report indicates that he found some

discrepancies in the signature samples that may indicate that defendant did not

sign the consent form. As such, the expert’s opinion was relatively equivocal.

Even if defendant’s expert’s opinion had been offered at the suppression

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hearing, the trial court indicated that it would not have changed its decision to

deny defendant’s motion to suppress. A trier of fact is not bound to accept the

opinion of an expert. Accordingly, defendant has failed to demonstrate that but

for counsel’s alleged inaction, there was a reasonable probability that the result

of the proceeding would have been different.

Raymond, slip op. at 5 (internal footnotes omitted). The Court agrees with this conclusion. 

Because the handwriting expert’s testimony would not have changed the trial court judge’s

decision to deny the motion to suppress, Petitioner cannot show that she was prejudiced by

her trial counsel’s failure to introduce this evidence at the suppression hearing.

Petitioner next contends that trial counsel was ineffective for failing to object to the

prosecutor’s addition of co-defendant Patrick Nwankwo as a prosecution witness in the

middle of trial after Nwankwo indicated that he would testify on his own behalf. The

Michigan Court of Appeals ruled that there was no indication that the trial court judge

abused her discretion by permitting Nwankwo to testify, as Michigan Compiled Laws §

767.40a(4) provides that “[t]he prosecuting attorney may add or delete from the list of

witnesses he or she intends to call at trial at any time upon leave of the court and for good

cause shown or by stipulation of the parties.” Raymond, slip op. at 6. The court

concluded that Petitioner had “failed to demonstrate, or even argue, that an objection to the

late addition of codefendant Nwankwo as a witness would have been successful.” Id. 

Trial counsel is not ineffective for failing to raise a futile objection. McQueen v. Scroggy,

99 F.3d 1302, 1328 (6th Cir. 1996). Because Petitioner has not shown that an objection to

the late addition of Nwankwo as a witness would have been successful, she has failed to

show that counsel was ineffective for failing to raise the objection.

In a related claim, Petitioner argues that counsel was ineffective for failing to seek a

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 This transcript is included among the materials filed in response to Plaintiff’s initial

habeas petition. See Case No. 05-cv-72577, Dkt. #18.

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continuance of the trial after learning that the prosecutor would call Nwankwo as a

witness. The Michigan Court of Appeals rejected this claim:

There is nothing in the record that supports defendant’s assertion that defense

counsel was unprepared to cross-examine codefendant Nwankwo. To the

contrary, the record shows that defense counsel was intimately familiar with the

case, was not surprised by codefendant Nwankwo’s testimony, and adequately

cross-examined him. Defendant has further failed to indicate what questions

defense counsel failed to ask or any other specific omissions defense counsel

made during codefendant Nwankwo’s testimony.

Raymond, slip op. at 6. The record demonstrates that Petitioner’s trial counsel questioned

Nwankwo extensively, highlighting inconsistencies in his testimony and his motivations

for testifying falsely against Petitioner. Trial Tr. 214-39, Mar. 21, 2002.2

 There is no

indication that additional time would have aided Petitioner’s defense. The Court therefore

concludes that Petitioner has not established that her trial counsel was ineffective for

failure to seek a continuance. See Johnson v. Bell, 525 F.3d 466, 487-88 (6th Cir. 2008).

Petitioner contends that her trial counsel was ineffective for failure to request a

cautionary jury instruction on accomplice testimony. Rejecting this claim, the Michigan

Court of Appeals held:

While defense counsel’s failure to request the instruction is questionable, we

are satisfied there is no reasonable probability that the result of the proceedings

would have been different in the absence of the alleged error. Contrary to

defendant’s claims, this case was not “closely drawn.” Apart from codefendant

Nwankwo’s testimony, there was ample evidence implicating defendant. In

addition to defendant’s post-arrest statement to the police that connected her to

the heroin found in the motel room, there was independent evidence that

codefendant Nwankwo was arrested for possession of heroin while driving a

car registered in defendant’s name. We further note that a large amount of

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heroin was found in defendant’s motel room, and that a large sum of money

was hidden in the lining of defendant’s purse.

Codefendant Nwankwo’s questionable credibility was also made apparent to

the jury and his motivation to lie was thoroughly explored by defense counsel.

The record shows that defense counsel vigorously and extensively

cross-examined both codefendant Nwankwo and the police about codefendant

Nwankwo’s involvement in the crimes, his motivations for testifying

untruthfully, and the inconsistencies in his testimony. Defense counsel also

discussed codefendant Nwankwo’s motivation for falsely testifying and

implicating defendant during closing argument.

Raymond, slip op. at 7.

In Krist v. Foltz, 804 F.2d 944, 947 (6th Cir. 1986), the Sixth Circuit held that a

defense attorney’s failure to request an accomplice instruction was “insignificant” where

the witness’s “unsavory past and his motive for naming the defendant as his companion in

crime were fully developed by counsel on cross-examination.” During cross-examination

and closing arguments, Petitioner’s counsel fully developed Nwankwo’s involvement in

the crime, the inconsistencies between Nwankwo’s testimony and the other evidence, and

Nwankwo’s motives for testifying falsely and implicating Petitioner. Counsel’s failure to

request a specific instruction on accomplice testimony therefore did not rise to the level of

ineffective assistance of counsel and would not entitle Petitioner to habeas relief.

Petitioner claims that her appellate counsel was ineffective for failing to argue on

appeal that her consent had been vitiated because she had been illegally detained by the

police. In support of her argument, Petitioner cites Florida v. Royer, 460 U.S. 491, 103 S.

Ct. 1319 (1983). In Royer, the Supreme Court held that when a suspect is illegally

detained, any subsequent consent to search is tainted by that illegal detention and cannot

justify the search. Id. at 507-08, 103 S. Ct. at 1329. Although Petitioner acknowledges

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that appellate counsel cited Florida v. Royer in her brief, Petitioner argues that by failing

to include this case or otherwise challenge the trial court’s alleged misapplication of Royer

in the statement of questions in the appellate brief, appellate counsel waived review of this

claim on appeal.

Michigan Court Rule 7.212(C)(5) requires a statement of the questions involved,

with each issue for appeal separately numbered. Because Petitioner’s claim that her illegal

detention rendered her consent invalid was “effectively inseparable” from her claim that

she did not freely and voluntarily consent to the police search, it is far from clear that

Petitioner would have had to separately number it in her brief to meet the requirements of

Michigan Court Rule 7.212(C)(5). See Dando v. Yukins, 461 F.3d 791, 797 (6th Cir.

2006). Moreover, there is no indication that the Michigan Court of Appeals refused to

consider Petitioner’s argument that the trial court erred in misapplying Royer. The Court

of Appeals thoroughly reviewed and rejected Petitioner’s claim that she did not consent to

the search. Raymond, slip op. at 2-4. The Court of Appeals noted:

Beyond defendant’s assertions, which the court found implausible, there is no

indication in the record that the police used coercive measures or attempted to

place defendant in duress to obtain consent. 

Id. at 4. As the appellate court considered Petitioner’s argument, Petitioner cannot show

that she was prejudiced by her counsel’s failure to include it in the statement of questions

in her appellate brief.

E. Petitioner’s Confrontation Clause Claim

Petitioner argues that her Sixth Amendment right to confrontation was violated when

the trial court judge refused to allow her to cross-examine Nwankwo regarding the

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maximum penalty that he faced if convicted for possessing the heroin discovered in

Petitioner’s motel room. In rejecting this claim, the Michigan Court of Appeals noted that

Nwankwo was never charged with possession of the heroin seized from Petitioner’s motel

room, nor did he claim that Petitioner planted the heroin in his car. The court concluded

that this was “not a case involving simple blame shifting between two defendants charged

with the same crime, nor is it a situation where a witness testifies after avoiding a

particular penalty by entering into a plea agreement.” Raymond, slip op. at 8-9. The Court

of Appeals further noted that the trial court’s ruling “did not amount to a blanket exclusion

of all evidence challenging Nwankwo’s credibility,” as defense counsel cross-examined

Nwankwo about his motivation for fabricating testimony. Id. 

A criminal defendant has the right to confront the witnesses against him. U.S. Const.

amend. VI. A primary interest secured by the Confrontation Clause is the right of crossexamination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965). The

Confrontation Clause guarantees the accused the right to cross-examine adverse witnesses

to uncover possible biases and expose the witness’s motivation in testifying. See Davis v.

Alaska, 415 U.S. 308, 316-317, 94 S. Ct. 1105, 1110-11 (1974). Nonetheless, “[T]he

Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, that the

defendant might wish.’” United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842

(1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987)). 

The Confrontation Clause does not prevent a trial judge from limiting defense counsel’s

inquiry into potential bias of a prosecution witness. “On the contrary, trial judges retain

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wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431,

1435 (1986).

Although Petitioner’s counsel was not permitted to question Nwankwo about the

maximum penalty he faced if convicted for possession of heroin, counsel was permitted to

question Nwankwo about the fact that he was facing criminal charges and wanted to return

to Houston. Nwankwo also acknowledged on cross-examination that he would be

convicted if he admitted that the heroin belonged to him. Trial Tr. 226-31, Mar. 21, 2002. 

The jury had enough information to understand Nwankwo’s possible bias or motivation

for testifying falsely against Petitioner. The additional information that Nwankwo faced a

mandatory penalty of life in prison if he was charged with the heroin recovered from

Petitioner’s motel room would not have added to the jury’s understanding of potential

bias. Therefore, the judge’s decision to preclude counsel from questioning Nwankwo

about the maximum penalty he faced did not violate Petitioner’s Sixth Amendment rights. 

See Gonzales v. Wolfe, 290 Fed. Appx. 799, 808-09 (6th Cir. 2008) (restriction on crossexamination of a witness regarding the potential length of his sentence and the legality of

his sentence did not violate a defendant’s Confrontation Clause rights, as that information

would not have added to the jury’s understanding of potential bias).

Moreover, in a habeas corpus proceeding, a trial error is harmless unless the error

“‘had [a] substantial and injurious effect or influence in determining the jury’s verdict.’” 

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Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714 (1993) (quoting

Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)). A violation of

the Confrontation Clause can be harmless error. Van Arsdall, 475 U.S. at 684, 106 S. Ct.

at 1438. In light of the fact that a large amount of heroin was discovered in Petitioner’s

motel room and she confessed to her involvement in heroin trafficking, any limitation on

Petitioner’s ability to cross-examine Nwankwo was harmless error at worst. Petitioner is

not entitled to habeas relief on her final claim.

III. Certificate of Appealability

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

final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases. A

certificate of appealability may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” Miller-El,

537 U.S. at 327, 123 S. Ct. at 1034 (2003). For the reasons stated above, the Court

concludes that Petitioner has failed to make a substantial showing of the denial of a

constitutional right. The Court therefore declines to issue Petitioner a certificate of

appealability.

IV. Conclusion

 Accordingly,

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

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PREJUDICE;

IT IS FURTHER ORDERED that the Court DECLINES to issue Petitioner a

certificate of appealability.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Ijoma Raymond, #406446

Huron Valley Women’s Correctional Facility

3201 Bemis Road

Ypsilanti, MI 48197-0911

Raina I. Korbakis, A.A.G.

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