Armstrong v. Douglas

                  UNITED STATES DISTRICT COURT                           
                  WESTERN DISTRICT OF MICHIGAN                           
                       SOUTHERN DIVISION                                 
                             ______                                      

RODNEY SCOT ARMSTRONG, JR.,                                               

              Petitioner,         Case No. 1:24-cv-1201                  

v.                                 Honorable Jane M. Beckering            

ADAM DOUGLAS,                                                             

              Respondent.                                                
____________________________/                                             
                            OPINION                                      
    This is a habeas corpus action brought by counsel on behalf of a state prisoner under 28 
U.S.C.  § 2254.  Petitioner  Rodney  Scot  Armstrong,  Jr.,  is  incarcerated  with  the  Michigan 
Department of Corrections (MDOC) at the Bellamy Creek Correctional Facility (IBC) in Ionia, 
Ionia County, Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was 
convicted of two counts of assault with the intent to murder, in violation of Mich. Comp. Laws  
§ 750.83, one count of felon in possession of a firearm, in violation of Mich. Comp. Laws  
§ 750.224f, and one count of possession of a firearm during the commission of a felony (felony-
firearm), in violation of Mich. Comp. Laws § 750.227b. On March 24, 2016, the trial court 
sentenced Petitioner to life imprisonment for the felon in possession and one of the assault with 
the intent to murder convictions, 40 to 60 years for the second assault with intent to murder 
conviction, and a consecutive 2–year term for the felony-firearm conviction. 
    On November 13, 2024, Petitioner, through counsel, filed his habeas corpus petition raising 
the following grounds for relief:                                         
    I.   The Petitioner was denied a fair trial when the prosecutor at trial elicited 
         false  testimony  from  the  teenaged  witnesses,  failed  to  correct  the 
         falsehood[,]  and  improperly  vouched  for  the  teenaged  witnesses’ 
         identification testimony.                                       
    II.  The Petitioner was denied a fair trial when the trial court prevented him 
         from presenting a defense when the trial court precluded the Petitioner from 
         calling a res gestae witness who was present at the Ros[a] Parks Circle 
         during the fighting who heard an unidentified black male threaten to shoot 
         someone.                                                        
    III.  The Petitioner was denied a fair trial when the prosecutor committed 
         misconduct when he showed the jury a compilation video during closing 
         arguments that had not been admitted.                           
    IV.  The trial court erred when it denied the Petitioner’s motion for relief from 
         judgment based on a violation of his right to  effective assistance of counsel 
         when his trial counsel (i) failed to seek an adjournment of the preliminary 
         examination; (ii) failed to retain an identification expert and a “gang” 
         expert; (iii) failed to conduct a thorough pretrial investigation into lay 
         witnesses  who,  the  Petitioner  claims,  would  have  supported  his 
         misidentification and alibi defense; and (iv) failed to object to numerous 
         instances of prosecutorial misconduct.                          
    V.   The jury verdict form was defective because it failed to provide for an 
         option of “not guilty” as to each of the lesser included offenses charged 
         based on People v. Wade, 283 Mich. App. 462, 771 N.W.2d 447, which held 
         that the verdict form is defective requiring reversal when it does not give 
         the jury the opportunity to return a general verdict of not guilty and affirmed 
         by the Michigan Supreme Court in People v. Erganian, 512 Mich. 930, 994 
         N.W.2d 749 (2023).                                              
    VI.  The trial court erred when it denied the Petitioner’s request for a new trial 
         based in part on res gestae witnesses Martin Broyles and Shane Toris and 
         their proffered sworn statement in support when the testimony is newly 
         discovered,  not  merely  cumulative,  could  not  have  been  reasonably 
         produced at trial, and makes a different result probable on retrial. 
(Br.  Supp.  §  2254  Pet.,  ECF  No.  6  (capitalization,  spelling,  and  punctuation  corrected).) 
Respondent contends that Petitioner’s grounds for relief are meritless.1 (ECF No. 7.) For the 

1 Respondent also contends that some of Petitioner’s grounds for relief are unexhausted and 
procedurally defaulted. (ECF No. 7.) Respondent recognizes, however, that a habeas corpus 
petition “may be denied on the merits, notwithstanding the failure of the applicant to exhaust the 
remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(2). Furthermore, the 
Supreme Court has held that federal courts are not required to address a procedural default issue 
before deciding against the petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518, 525 
following reasons, the Court concludes that Petitioner has failed to set forth a meritorious federal 
ground for habeas relief and will, therefore, deny his petition for writ of habeas corpus. 
                           Discussion                                    
I.   Factual Allegations                                                  
    The Michigan Court of Appeals set forth the following summary of the facts underlying 
Petitioner’s convictions:                                                 

    [Petitioner’s] charges stem from a shooting that occurred near the Buffalo Wild 
    Wings restaurant in downtown Grand Rapids at approximately midnight on the 
    night of June 17 to June 18, 2014. Earlier in the day, a group of teenagers went 
    downtown to hang out at a Swing dance event being held at Rosa Parks Circle. The 
    group of teenagers included Jordan Forbes, Jamond Means, Shadiah McIntosh, 
    Tasia Harris, and Nashay Minter. There was evidence that some of the teenagers 
    fought with others at Rosa Parks Circle.                             
    Although the teenagers repeatedly denied it, there was also evidence that one or 
    more members of their group clashed with [Petitioner] at Buffalo Wild Wings at 
    approximately 10:30 p.m. [Petitioner] was beaten and left unconscious on the 
    sidewalk  outside  the  restaurant.  Testimony  showed  that  [Petitioner]  regained 
    consciousness after a few minutes and went into the restaurant to clean up. He 
    refused medical treatment and refused to cooperate with an investigating officer. 
    [Petitioner’s] friend, Ngoc Pham, drove him home.                    
    There was cell phone and video evidence supporting the conclusion that, after being 
    dropped home by Pham, [Petitioner] drove back downtown. At that time, the 
    teenagers were standing near a parking lot that was adjacent to the restaurant. The 
    evidence indicated that [Petitioner] circled in front of the restaurant. He then parked 
    his car, walked down an alley and through the parking lot next to which the 
    teenagers were standing, and fired three shots at them. Forbes was struck in the 
    back and suffered a severed spine. Means was shot in the buttocks. [Petitioner] then 
    fled the scene and drove out of the area. The teenaged witnesses identified the 
    shooter as the man who was the victim of the beating earlier in the evening. 

(1997) (“Judicial economy might counsel giving the [other] question priority, for example, if it 
were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved 
complicated issues of state law.”); see also Overton v. Macauley, 822 F. App’x 341, 345 (6th Cir. 
2020) (“Although procedural default often appears as a preliminary question, we may decide the 
merits first.”); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir. 2003) (citing Lambrix, 520 U.S. 
at 525; Nobles v. Johnson, 127 F.3d 409, 423–24 (5th Cir. 1997); 28 U.S.C. § 2254(b)(2)). Here, 
rather than conduct a lengthy inquiry into exhaustion and procedural default, judicial economy 
favors proceeding directly to a discussion of the merits of Petitioner’s claims. 
    At trial, defense counsel asserted that the teenaged witnesses fought with others 
    earlier in the evening and that they were involved in gang activities. In light of these 
    activities, counsel argued that others had a motive to shoot at the teenagers. He 
    further argued that the teenagers were lying to protect each other and only identified 
    [Petitioner] as the man who shot Means and Forbes in order to cast themselves in 
    the role of victims. In that way, he maintained, they might prevent police officers 
    from arresting their friends for the attack on [Petitioner]. He further stated that the 
    other circumstantial evidence—the cell tower records and video evidence—did not 
    demonstrate that [Petitioner] was the shooter. The jury found [Petitioner] guilty as 
    charged.                                                             
People v. Armstrong, No. 332793, 2017 WL 6389895, at *1 (Mich. Ct. App. Dec. 14, 2017). 
    Jury selection for Petitioner’s trial occurred on February 15, 2016. (Trial Tr. I, ECF No. 8-
4.) Over the course of six days, the jury heard testimony from numerous witnesses, including law 
enforcement officials, an expert in firearm and tool mark analysis, Jordan Forbes, Jamond Means, 
Shadiah McIntosh, Tasia Harris, Nashay Miner, Ngoc Pham, an expert on the subject of cell phone 
technology, a nurse, and an acquaintance of Petitioner’s. (Trial Tr. II, III, IV, V, VI, & VII, ECF 
Nos. 8-5, 8-6, 8-7, 8-8, 8-9, 8-10.) On February 26, 2016, after about four hours of deliberation, 
the jury returned a guilty verdict. (Trial Tr. VIII, ECF No. 8-11, PageID.523.) Petitioner appeared 
before the trial court for sentencing on March 24, 2016. (ECF No. 8-12.)  
    Petitioner, through counsel, appealed his convictions and sentences to the Michigan Court 
of Appeals, raising the following claims for relief: (1) the prosecutor committed misconduct by 
eliciting false testimony from the witnesses and by improperly vouching for the witnesses’ 
identification testimony; (2) the trial court prevented Petitioner from presenting a defense by 
precluding witness testimony; (3) the prosecutor committed misconduct by using a compilation 
video during closing arguments; and (4) cumulative error. (ECF No. 8-19, PageID.813–814.) The 
Michigan Court of Appeals affirmed Petitioner’s convictions and sentences on December 14, 
2017. Id. On September 12, 2018, the Michigan Supreme Court denied Petitioner’s application for 
leave to appeal. See People v. Armstrong, 917 N.W.2d 395 (Mich. 2018). The United States 
Supreme Court denied Petitioner’s petition for a writ of certiorari on March 18, 2019. See 
Armstrong v. Michigan, 139 S. Ct. 1329 (2019).                            
    On November 21, 2019, Petitioner, through counsel, returned to the trial court and filed a 
motion for relief from judgment pursuant to Michigan Court Rule 6.502. (ECF No. 8-13.) 
Petitioner raised the following grounds for relief in his motion: (1) trial counsel was ineffective 

for failing to seek an adjournment of the preliminary examination, failing to retain experts on 
identification/misidentification and gangs, failing to complete pretrial investigation regarding lay 
witnesses who could have supported alibi and misidentifications defenses, and failing to object to 
prosecutorial misconduct; (2) the jury verdict form was defective because it did not provide the 
jury the option of returning a general “not guilty” verdict with respect to the lesser charge of assault 
with intent to do great bodily harm less than murder; and (3) newly discovered evidence from 
Martin Broyles indicated that another individual committed the shooting. (Id.) 
    In an opinion and order entered on May 12, 2022, the trial court dismissed some of 
Petitioner’s grounds for relief and directed the prosecuting attorney to respond to the remaining 

grounds. (ECF No. 8-14.) Subsequently, in an opinion and order entered on June 28, 2023, the trial 
court denied Petitioner’s Rule 6.502 motion. (ECF No. 8-18.) The Michigan Court of Appeals and 
Michigan Supreme Court denied Petitioner’s applications for leave to appeal on January 4, 2024, 
and August 30, 2024, respectively. (ECF No. 8-20, PageID.917; ECF No. 8-22, PageID.1385.) 
This § 2254 petition followed.                                            
II.  AEDPA Standard                                                       
    The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions 
are  given  effect  to  the  extent  possible  under  the  law.  Bell  v.  Cone,  535  U.S.  685,  
693–94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated 
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on 
the merits in state court unless the adjudication:                        
    (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  upon  an 
    unreasonable determination of the facts in light of the evidence presented in the 
    state court proceeding.                                              
28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal 
quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This standard 
is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation 
marks omitted).                                                           
    The AEDPA limits the source of law to cases decided by the United States Supreme Court. 
28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not 
consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000); 
Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal 
law” does not include decisions of the Supreme Court announced after the last adjudication of the 
merits in state court. Greene v. Fisher, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to 
an examination of the legal landscape as it would have appeared to the Michigan state courts in 
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller 
v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38). 
    A federal habeas court may issue the writ under the “contrary to” clause if the state court 
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it 
decides a case differently than the Supreme Court has done on a set of materially indistinguishable 
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a 
habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in 
federal  court  was  so  lacking  in  justification  that  there  was  an  error  well  understood  and 
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575 
U.S. at 316 (quoting Harrington, 562 U.S. at 103).                        
    Determining whether a rule application was unreasonable depends on the rule’s specificity. 

Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching 
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 
“[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in 
their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal 
quotation marks omitted).                                                 
    The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is 
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and 
convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) 

(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d 
652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate 
courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith v. 
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).                              
    Section 2254(d) limits the facts a court may consider on habeas review. The federal court 
is not free to consider any possible factual source. The reviewing court “is limited to the record 
that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 
U.S. 170, 180 (2011). “If a review of the state court record shows that additional fact-finding was 
required under clearly established federal law or that the state court’s factual determination was 
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the 
underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576 
U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).    
    If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s 
claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example, 

if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d 
at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d 
433, 436 (6th Cir. 2003)).                                                
III.  Discussion                                                          
    A.   Grounds Asserting Prosecutorial Misconduct                      
    Petitioner raises assertions of prosecutorial misconduct in his first and third grounds for 
relief. For a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the 
petitioner must demonstrate that the prosecutor’s improper conduct “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)). “[T]he 
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  evaluating  the  impact  of  the 
prosecutor’s misconduct, a court should consider the extent to which the claimed misconduct 
tended to mislead the jury or prejudice the petitioner. See United States v. Young, 470 U.S. 1, 11–
12 (1985). The Supreme Court has described the Darden standard as “a very general one, leaving 
courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’” Parker v. 
Matthews, 567 U.S. 37, 48 (2012). The Parker Court rejected an attempt to graft any additional 
requirements on the “very general” Darden standard.                       
    “Claims  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)). Indeed, “[t]he Supreme Court has clearly indicated that the state courts have 
substantial  breathing  room  when  considering  prosecutorial  misconduct  claims  because 
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle 

v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. at, 645). Thus, in order 
to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the 
state court’s rejection of his prosecutorial misconduct claim “was so lacking in justification that 
there was an error well understood and comprehended in existing law beyond any possibility for 
fairminded disagreement.” Parker, 567 U.S. at 47 (internal quotation marks omitted). 
         1.   Ground I—Presentation of False Testimony and Vouching      
              a.   False Testimony                                       
    Petitioner first contends that he was denied a fair trial because the prosecutor “elicited false 
testimony from the teenaged witnesses [and] failed to correct the falsehood.” (Br. Supp. § 2254 
Pet., ECF No. 6, PageID.27.) Petitioner contends that the identification process included “a phot[o] 
array shown to the witnesses during the [investigation],” but that “[p]rior to viewing the photo 

array, the witnesses viewed a photograph of the petitioner posted on Facebook.” (Id., PageID.28.) 
According to Petitioner, the identification was “obviously tainted” and the witnesses’ statements 
“were questionable because [their] stories and the certainty of their identification did not comport 
with the objective facts.” (Id.) Petitioner also avers that the statements were similar and appeared 
to  have  been  rehearsed.  (Id.)  Moreover,  Petitioner,  contends,  the  teenagers  lied  during  the 
preliminary examination as to: (1) who was involved in the fighting at Rosa Parks Circle; (2) who 
was involved in the assault on Petitioner; (3) where each witness was during the assault of 
Petitioner; and (4) what each witness did when the assault resulted in the police being called. (Id.) 
Petitioner notes that the witnesses’ testimony was contradicted by the surveillance video collected 
by law enforcement. (Id.)                                                 
    The Fourteenth Amendment’s right to due process prohibits a state from knowingly and 
deliberately using perjured evidence to obtain a conviction. See Napue v. Illinois, 360 U.S. 264, 
260 (1959). The Supreme Court has repeatedly recognized that “deliberate deception of a court 

and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands 
of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 
U.S. 103, 112 (1935)). Presentation of perjured testimony, without more, however, does not rise 
to the level of a constitutional violation. See Briscoe v. LaHue, 460 U.S. 325, 327 (1983). Rather, 
    [t]he knowing use of false or perjured testimony constitutes a denial of due process 
    if there is any reasonable likelihood that the false testimony could have affected the 
    judgment of the jury. In order to establish prosecutorial misconduct or denial of due 
    process, the defendants must show (1) the statement was actually false; (2) the 
    statement was material; and (3) the prosecution knew it was false. The burden is on 
    the  defendants  to  show  that  the  testimony  was  actually  perjured,  and  mere 
    inconsistencies in testimony by government witnesses do not establish knowing use 
    of false testimony.                                                  
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989) (citations omitted). 
    Petitioner raised this claim on direct appeal, and the Michigan Court of Appeals rejected 
it, stating:                                                              
    [Petitioner] argues that, based on video evidence, it was obvious that Means, 
    Forbes, Harris, McIntosh, and Minter lied about their role in the fights at Rosa Parks 
    Circle and lied about their involvement in the attack on [Petitioner]. While there 
    are  apparently  conflicts  between  the  teenagers’  testimony  and  certain  events 
    depicted  in  the  video  footage,  the  video  evidence  is  not  definitive  proof  of 
    everything that occurred on the evening in question and it does not establish that 
    the teenagers lied about everything that happened that night, particularly those 
    events not captured on video. A prosecutor is under no obligation to disbelieve his 
    or her own witnesses. People v. Lester, 232 Mich. App. 262, 278–279; 591 N.W.2d 
    267 (1998), overruled not in relevant part People v. Chenault, 495 Mich. 142; 845 
    N.W.2d 731 (2014). As such, the prosecutor could conclude that the witnesses were 
    being truthful on many, if not all, the matters at issue.            
    To the extent that the video evidence establishes some inaccuracies or some 
    untruths in the teenagers’ testimony, it is clear that [Petitioner] is not entitled to 
    relief because the jury was made aware of the conflict between the teenagers’ 
    testimony and the video evidence and the prosecutor did not rely on the teenagers’ 
    purported lies in obtaining a conviction. There is no indication that the prosecutor 
    attempted to keep the video footage from defendant. Cf. People v. Parker, 230 
    Mich. App. 677, 690; 584 N.W.2d 753 (1998). Instead, the video footage in 
    question was played at trial, the teenagers[] were examined about the conflicts 
    between their testimony and the video footage, and, when confronted with video 
    footage, Forbes, in particular, acknowledged that he had lied about certain facts. 
    Thus, this is not a case where the jury was left with a false or misleading impression. 
    Cf. Smith, 498 Mich. at 478. Rather, the jury had all the information necessary to 
    assess the credibility of these witnesses and to determine whether and to what extent 
    the witnesses were being truthful. See People v. Perry, 460 Mich. 55, 63; 594 
    N.W.2d 477 (1999) (“[A] jury is free to believe or disbelieve, in whole or in part, 
    any of the evidence presented.”). Moreover, it is evident that the prosecutor did not 
    believe the witnesses’ implausible testimony about the fights earlier in the evening, 
    and the prosecutor did not attempt to exploit this testimony to obtain a conviction. 
    To the contrary, the prosecutor argued to the jury that the witnesses were not being 
    truthful about those events. The prosecutor told the jury that the evidence showed 
    that the teenaged witnesses had been fighting at Rosa Parks Circle and “almost 
    certainly” participated in the attack on [Petitioner]. He argued that the evidence 
    demonstrated that Means and Forbes were “absolutely” involved. On this record, 
    where the jury was apprised of the video evidence and the prosecutor conceded that 
    the teenagers lied about certain facts, there is no reasonable likelihood that any false 
    testimony by the teenagers regarding events at Rosa Parks Circle or the attack on 
    defendant affected the judgment of the jury. Consequently, [Petitioner] is not 
    entitled to relief on appeal. See Aceval, 282 Mich. App. at 389.     
Armstrong, 2017 WL 6389895, at *2.                                        
    Here, Petitioner essentially reiterates the arguments that he raised in—and that were 
rejected by—both the court of appeals and the Michigan Supreme Court. Despite Petitioner’s 
arguments, Petitioner fails to provide any evidence, much less clear and convincing evidence, to 
overcome the court of appeals’ conclusion that the prosecutor was aware of falsities in the 
witnesses’ testimony, presented them as witnesses regardless, and hid those falsities from the 
defense and jury. Rather, a review of the record indicates that the court of appeals properly pointed 
out that the prosecution argued that the teenagers had not been truthful about their involvement in 
the fighting at Rosa Parks Circle and the assault on Petitioner.          
    Moreover, the jury was not required to believe all of the testimony offered by the teenaged 
witnesses. Rather, in accordance with Michigan’s model jury instructions, the jury does “not have 
to accept or reject everything a witness says,” but is “free to believe all, none, or part of any 
person’s testimony.” See Mich. Crim. JI 2.6, Judging Credibility and Weight of Evidence. Thus, 
the jury was entitled to believe the teenagers when they testified that they had positively identified 

Petitioner as the shooter and disbelieve them regarding their testimony attempting to limit their 
involvement in the fighting at Rosa Parks Circle. Despite Petitioner’s assertions, the witnesses’ 
lies concerning their involvement in the fighting that occurred before the shooting does not equate 
with the prosecutor presenting false or perjured testimony, particularly when the prosecutor 
acknowledged that the witnesses had not been entirely truthful. Petitioner’s speculations are 
insufficient to meet his burden on federal habeas review.                 
    For the foregoing reasons, Petitioner has failed to demonstrate that the court of appeals’ 
rejection of this claim is contrary to, or an unreasonable application of, clearly established federal 
law. Petitioner, therefore, is not entitled to relief with respect to this portion of habeas ground I. 

              b.   Vouching                                              
    As part of his first ground for relief, Petitioner “submits that the prosecutor also vouched 
for the [credibility] of the witnesses.” (Br. Supp. § 2254 Pet., ECF No. 1, PageID.29.)  
    The Sixth Circuit has identified two types of objectionable vouching. See United States v. 
Acosta, 924 F.3d 288, 299 (6th Cir. 2019); Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008). But 
see Wogenstahl v. Mitchell, 668 F.3d 307, 328–29 (6th Cir. 2012) (treating the two aspects of 
vouching as part of a single standard). The first type impermissibly places the government’s 
prestige behind the witness to enhance his or her credibility. See United States v. Francis, 170 F.3d 
546, 550 (6th Cir. 2019); United States v. Carroll, 26 F.3d 1380, 1388–89 (6th Cir. 1994). The 
second type, also known as bolstering, occurs when the prosecutor invites the jury to believe there 
is other evidence, known to the prosecutor but not introduced into evidence, justifying the 
prosecutor's belief in the defendant’s guilt. See Francis, 170 F.3d at 551; United States v. Medlin, 
353 F.2d 789, 796 (6th Cir. 1965).                                        
    Moreover, a prosecutor may not “offer [his or her] opinions as to credibility of a witness 
or the guilt of a defendant.” Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008). As the Supreme 

Court has noted:                                                          
    The prosecutor’s vouching for the credibility of witnesses and expressing his 
    personal opinion concerning the guilt of the accused pose two dangers: such 
    comments can convey the impression that evidence not presented to the jury, but 
    known to the prosecutor, supports the charges against the defendant and can thus 
    jeopardize the defendant’s right to be tried solely on the basis of the evidence 
    presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of 
    the Government and may induce the jury to trust the Government’s judgment rather 
    than its own view of the evidence.                                   
United States v. Young, 470 U.S. 1, 18–19 (1985). However, not every reference to the credibility 
of a witness is objectionable vouching. “[A] prosecutor may ask the jury to draw reasonable 
inferences of credibility from the evidence presented.” Willoughby v. White, 786 F. App’x 506, 
513 (6th Cir. 2019).                                                      
    On direct appeal, the Michigan Court of Appeals addressed Petitioner’s vouching argument 
as follows:                                                               
    On appeal, [Petitioner] also argues that the prosecutor’s remarks amounted to 
    improper vouching for the eyewitnesses. Specifically, [Petitioner] asserts that the 
    prosecutor had no way to discern when the witnesses were lying and when they 
    were being truthful. According to [Petitioner], by arguing that the witnesses’ 
    identifications were credible even though they had lied about other things, the 
    prosecutor implied that he had special knowledge.                    
    A prosecutor may not vouch for a witness’ credibility by implying that he or she 
    has some special knowledge that the witness is telling the truth. People v. Bahoda, 
    448 Mich. 261, 276; 531 N.W.2d 659 (1995). However, a prosecutor is free to argue 
    from the facts that a witness should be believed. People v. Seals, 285 Mich. App. 
    1, 22; 776 N.W.2d 314 (2009). In this case, while conceding that the teenagers were 
    not entirely truthful, the prosecutor argued that their description of the shooting and 
    their identification of [Petitioner] was worthy of belief. The prosecutor asserted that 
    the eyewitnesses had a motive to lie about their involvement in beating [Petitioner], 
    but that they did not have such a motive when it came to identifying him as the 
    shooter. The prosecutor further emphasized that it was highly implausible that the 
    teenaged eyewitnesses would conspire to frame [Petitioner]. He noted too that an 
    officer confirmed that one of the teenagers identified [Petitioner] moments after the 
    shooting, which made it unlikely that her identification was part of a conspiracy to 
    frame  [Petitioner].  The  prosecutor  also  relied  on  independent  circumstantial 
    evidence that [Petitioner] was the shooter. He cited the cell phone and video 
    evidence that tended to show that [Petitioner] returned to the area of Buffalo Wild 
    Wings after being beaten by the teenagers, circled the restaurant, parked, and 
    walked to the area of the shooting. This circumstantial evidence bolstered the 
    eyewitnesses’ identifications, and the prosecutor could rely on it when arguing 
    credibility. There was also no indication that the prosecutor improperly placed the 
    prestige of his office behind his arguments or claimed special knowledge. See 
    Bahoda, 448 Mich. at 277 n 26. Thus, the prosecutor did not improperly vouch for 
    their credibility, and [Petitioner] is not entitled to relief on this basis. 
Armstrong, 2017 WL 6389895, at *3.                                        
    Here, Petitioner does not present to this Court any argument regarding this issue other than 
the arguments that he raised in his brief on direct appeal. Petitioner, therefore, fails to explain how 
the court of appeals’ analysis is in error. Moreover, Petitioner does not explain how the court of 
appeals’ analysis is contrary to, or an unreasonable application of, the general standards set forth 
in Darden or Donnelly.                                                    
    Upon review of the record, the Court concludes that where, during closing arguments, the 
prosecutor noted that the teenagers’ identifications of Petitioner were worthy of belief, the 
prosecutor tied those arguments to the evidence offered at trial or reasonable inferences from that 
evidence. Petitioner simply fails to point to any part of the prosecutor’s argument that suggested 
that the prosecutor invited the jurors to believe that the teenagers had credibly identified Petitioner 
simply because the prosecutor believed that to be the case. Moreover, the prosecutor did not invite 
the jury to believe there was other evidence, known to the prosecutor but not introduced at trial, 
justifying a conclusion that the eyewitness identifications were reliable. Furthermore, at no time 
did the prosecutor place the prestige of the government behind the teenagers to bolster their 
credibility.                                                              
    The Court also notes that the trial court instructed the jury to consider only the evidence 
admitted at trial, and that counsel’s closing arguments did not constitute evidence. (See Trial Tr. 
VIII, ECF No. 8-11, PageID.518.) A jury is presumed to follow its instructions. See Weeks v. 

Angelone, 528 U.S. 225, 234 (2000). Petitioner has not demonstrated that the remarks made by the 
prosecutor during closing arguments “so infected the trial with unfairness” that he was denied due 
process. See Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). Petitioner, therefore, is 
not entitled to relief with respect to his assertion that the prosecutor improperly vouched for the 
witnesses’ credibility.                                                   
              c.   Summary                                               
    In sum, Petitioner has failed to demonstrate that the state courts’ rejection of his claim of 
prosecutorial  misconduct  premised  upon  the  presentation  of  false  testimony  and  improper 
vouching  is  contrary  to,  or  an  unreasonable  application  of,  clearly  established  federal  law. 
Petitioner, therefore, is not entitled to relief with respect to habeas ground I. 

         2.   Ground III—Use of Compilation Video                        
    As his third ground for relief, Petitioner argues that the prosecutor committed misconduct 
“when he showed the jury a compilation video during closing arguments that had not been 
admitted.” (Br. Supp. § 2254 Pet., ECF No. 6, PageID.33.) Petitioner contends that this newly 
created evidence “should have been barred under MRE and FRE 1006.” (Id.)  
    Petitioner raised this ground on direct appeal, and the court of appeals rejected it, stating: 
    Initially, we note that, although [Petitioner] discusses the admissibility of the 
    compilation video, he also concedes that the prosecutor did not seek the admission 
    of the compilation video and that the trial court did not admit it into evidence. 
    Because the compilation video was not admitted, the arguments concerning the 
    compilation’s admissibility under MRE 1006 or another rule of evidence are 
inapposite. Instead, the prosecutor used the video as a visual aid during closing and 
the issue on appeal is whether this use of a visual aid amounted to misconduct. 
                         * * *                                      
In his closing argument, the prosecutor summarized the testimony by a detective 
wherein the detective described the videos that the police collected from various 
locations in the area of the shooting. The prosecutor asked the jury to “watch the 
video, or all the videos combined into a compilation which shows the defendant’s 
movements.” That is, the prosecutor represented that the compilation was a video 
that combined the videos actually admitted into evidence and about which the 
detective testified. The prosecutor then played the compilation for the jury. The 
compilation video consists of various snippets of footage taken from cameras at 
various locations in the time around the shooting.1 The individual segments are 
separated by the appearance of a blue screen with written text identifying the 
camera location for the footage that will appear next. At points, the video pauses 
and objects or persons in the video—such as a vehicle with a missing hubcap or a 
man wearing white socks—are highlighted by the appearance of a light circle. At 
trial, during the playback, the prosecutor pointed out how, when viewed in the 
selected order, the videos admitted into evidence showed the car associated with 
[Petitioner] moving through the area near the time of the shooting and showed that 
it stopped at a nearby location that enabled the driver to approach the teenaged 
victims. He noted that the videos appeared to show the driver, who was wearing 
clothing consistent with the eyewitnesses’ testimony, approach the scene of the 
shooting at around the time of the shooting, and then flee from the scene afterward. 
Thus,  the  record  shows  that  the  prosecutor  used  the  compilation  video  as  a 
demonstrative aid as part of the prosecutor’s argument about how the jury should 
view the videos admitted into evidence.                              
[Petitioner] maintains that it was error for the prosecutor to use the compilation 
because the compilation amounted to new evidence created by the prosecutor and 
thus the use of the compilation amounted to an argument based on evidence not 
admitted at trial. Specifically, he argues that the compiled video presented a 
“compelling version of events that was not obvious from the evidence admitted at 
trial” and that it “was slanted towards the prosecution’s view of events.” However, 
[Petitioner] does not argue that the prosecutor used videos [sic] segments in the 
compilation that were not actually admitted at trial. He merely states that the 
prosecutor assembled the videos in a compelling sequence—that is, he essentially 
faults the prosecutor for making a convincing argument. But, the prosecutor was 
free to argue the evidence and the reasonable inferences from the evidence in 
support of his theory of the case. Bahoda, 448 Mich. at 282. In assembling the 
videos in a particular order and highlighting certain images, the prosecutor did not 
offer new evidence, nor did the prosecutor distort the video images that had been 
admitted  into  evidence.  Instead,  the  prosecutor  simply  used  admitted  video 
evidence  during  closing  arguments  as  a  demonstrative  aid.  We  see  nothing 
improper in the prosecutor’s use of a demonstrative aid during closing arguments, 
and [Petitioner] has not shown plain error. See Bennett, 290 Mich. App. at 475. 
    Moreover, even if we were to conclude that the prosecutor should not have used 
    the  compilation  video,  [Petitioner]  has  not  shown  that  the  error  affected  his 
    substantial rights. There is no indication the actual videos admitted at trial were 
    unavailable for the jury’s review during deliberations, and defense counsel had the 
    opportunity to react to the compiled video and to argue that the jury should not view 
    the video evidence in the manner suggested by the prosecutor. Further, the trial 
    court instructed the jury that the parties’ closing arguments were not evidence; the 
    evidence, it told the jury, was the sworn testimony and the exhibits admitted at trial. 
    Jurors are presumed to follow their instructions, and the trial court’s instruction 
    cured any minimal prejudice. Unger, 278 Mich. App. at 235. Thus, [Petitioner] has 
    not shown that the prosecutor committed outcome determinative error by using the 
    compiled video as a demonstrative aid during closing argument.       
    ___________________                                                  
    1 [Petitioner] has provided the compilation video on appeal, and we have reviewed 
    it.                                                                  
Armstrong, 2017 WL 6389895, at *5–6.                                      
    The Michigan Court of Appeals noted that this claim of prosecutorial misconduct was 
unpreserved because Petitioner had failed to object to the use of the video during closing arguments 
and reviewed the unpreserved claim “for plain error affecting substantial rights.” Id. at *5. Under 
Michigan harmless error jurisprudence, unpreserved nonstructural constitutional error is reviewed 
under a plain error standard. People v. Cornell, 646 N.W.2d 127, 142–43 (Mich. 2002); People v. 
Carines, 597 N.W.2d 130, 143 (Mich. 1999). To prevail, the defendant must show “a plain error 
that affected substantial rights.” Carines, 597 N.W.2d at 143. The Michigan Supreme Court 
assesses whether the error affected the outcome of the proceeding to determine whether the 
defendant has made the necessary showing. People v. Davis, 983 N.W.2d 325, 336–337 (Mich. 
2022) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). That is “the same kind of inquiry” 
the Michigan courts use to determine whether error is harmless: was it “outcome-determinative.” 
Id. The Michigan Supreme Court equates “outcome determination” to “prejudice” when separating 
plain from harmless error, People v. Vaughn, 821 N.W.2d 288, 303 (Mich. 2012), and when 
evaluating the Strickland standard for ineffective assistance of counsel, People v. Harris, 840 
N.W.2d 307, 308 (Mich. 2013).                                             
    The impact of an error on the outcome of the proceedings is also the focus of federal 
harmless error analysis. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (adopting as 
the standard for determining whether habeas relief if appropriate “whether the . . . error ‘had 

substantial and injurious effect or influence in determining the jury’s verdict.’”); O’Neal v. 
McAninch, 513 U.S. 432, 436 (1995) (posing the question as “Do I, the judge, think that the error 
substantially influenced the jury’s decision?”); Brown v. Davenport, 596 U.S. 118, 126 (2022) 
(stating that “a state prisoner . . . must show that the error had a ‘substantial and injurious effect or 
influence’ on the outcome of his trial” (quoting Brecht, 507 U.S. at 637)). The appellate court’s 
decision that the error was not outcome determinative is the equivalent of a determination that the 
error was harmless under Brecht. Kyles v. Whitley, 514 U.S. 419, 435–36 (1995). 
    Brown states that “a state court’s harmless-error determination qualifies as an adjudication 
on the merits under AEDPA.” 596 U.S. at 127. Accordingly, the Court must defer to that 

adjudication under § 2254(d)(1) unless the “petitioner persuades [the Court] that no ‘fairminded 
juris[t]’ could reach the state court’s conclusion under [the Supreme] Court’s precedents.” Id. 
at 1525 (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)). This is a standard that is intentionally 
difficult to meet. See Woods, 575 U.S. at 316.                            
    In his petition, Petitioner reiterates the arguments that he raised in—and that were rejected 
by—the court of appeals. By providing no argument suggesting that no fairminded jurist could 
come to the conclusion reached by the court of appeals under Supreme Court precedent, Petitioner 
simply fails to demonstrate that any alleged error by the prosecutor’s use of the compilation video 
had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 
U.S. at 637. As noted by the court of appeals, the jury had ample opportunity to review whatever 
video evidence had been admitted during Petitioner’s trial and to compare that video evidence to 
their recollection of the prosecutor’s arguments during use of the compilation video. 
    Given Petitioner’s failure to persuade the Court that no fairminded jurist could reach the 
conclusion arrived at by the court of appeals, the Court will defer to the court of appeals’ 

determination. The Court’s deference to the court of appeals’ determination that the prosecutor’s 
use of the compilation video, if erroneous, was not outcome determinative necessarily leads to a 
conclusion that Petitioner has failed to demonstrate that the court of appeals’ rejection of this claim 
of prosecutorial misconduct is contrary to, or an unreasonable application of, clearly established 
federal law. Petitioner, therefore, is not entitled to relief with respect to habeas ground III. 
    B.   Ground IV—Ineffective Assistance of Trial Counsel               
    As his fourth ground for relief, Petitioner contends that trial counsel rendered ineffective 
assistance in various ways. Specifically, Petitioner faults trial counsel for: (1) not seeking an 
adjournment  of  the  preliminary  hearing;  (2)  not  retaining  identification  and  gang  experts; 
(3) failing to investigate lay witnesses who would have supported Petitioner’s misidentification 

and alibi defenses; and (4) failing to object to numerous instances of prosecutorial misconduct. 
(Br. Supp. § 2254 Pet., ECF No. 6, PageID.34.)                            
         1.   Standard of Review                                         
    In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a 
two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a 
claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance 
fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance 
prejudiced the petitioner resulting in an unreliable or fundamentally unfair outcome. Id. at 687. A 
court considering a claim of ineffective assistance must “indulge a strong presumption that 
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. 
The petitioner bears the burden of overcoming the presumption that the challenged action might 
be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see 
also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic 
decisions were hard to attack). The court must determine whether, in light of the circumstances as 

they existed at the time of counsel’s actions, “the identified acts or omissions were outside the 
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court 
determines that counsel’s performance was outside that range, the petitioner is not entitled to relief 
if counsel’s error had no effect on the judgment. Id. at 691.             
    Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews 
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is 
“doubly” deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. 111, 
123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 15 (2013); Cullen, 563 U.S. at 190; Premo v. 
Moore, 562 U.S. 115, 122 (2011). Scrutiny of counsel’s performance is “highly deferential”, per 

Strickland, to avoid the temptation to second guess a strategy after-the-fact and to “eliminate the 
distorting effects of hindsight.” Strickland, 466 U.S. at 689. Scrutiny of the state court’s scrutiny 
of counsel’s performance must also be deferential, per 28 U.S.C. § 2254(d). In light of that double 
deference, the question before the habeas court is “whether there is any reasonable argument that 
counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk, 687 F.3d 723, 740–41 
(6th Cir. 2012) (stating that the “Supreme Court has recently again underlined the difficulty of 
prevailing on a Strickland claim in the context of habeas and AEDPA” (citing Harrington, 562 
U.S. at 102)).                                                            
    Petitioner raised his claims of ineffective assistance in his Rule 6.502 motion, and the trial 
court addressed them in its May 12, 2022, and June 28, 2023, opinions and orders. In its May 12, 
2022, opinion and order, the trial court addressed the dismissed claims of ineffective assistance 
under the following standard:                                             
    Under Strickland, adopted as Michigan law,[] establishing ineffective assistance of 
    counsel requires a defendant to show (1) that trial counsel’s performance was 
    objectively deficient, and (2) that the deficiencies prejudiced the defendant. 466 
    U.S. at 687. Prejudice means “a reasonable probability that, but for counsel’s 
    professional errors, the result of the proceeding would have been different. A 
    reasonable probability is a probability sufficient to undermine confident in the 
    outcome.” Randolph, supra, at 9.                                     
(ECF No. 8-14, PageID.675 (footnote omitted).) In its June 28, 2023 opinion and order, the trial 
court used the following standard:                                        
    To establish ineffective assistance of counsel, a defendant must demonstrate that 
    (1) his counsel’s performance fell below an objective standard of reasonableness 
    and (2) counsel’s representation so prejudiced the defendant that he was deprived 
    of a fair trial. See People v. Pickens, 446 Mich. 302-03; 521 N.W.2d 797 (1994). 
    To demonstrate prejudice, a defendant must show a reasonable probability that, but 
    for counsel’s error, the result of the proceedings would have been different. Id. at 
    312.                                                                 
(ECF No. 8-18, PageID.757.) Here, the trial court clearly cited Strickland in its first opinion. 
Moreover, although the trial court cited state law in its second opinion, the standard is identical to 
the one set forth in Strickland.                                          
    The trial court’s application of the correct standard eliminates the possibility that the 
resulting decision is “contrary to” clearly established federal law. As the Supreme Court stated in 
Williams v. Taylor:                                                       
    The word “contrary” is commonly understood to mean “diametrically different,” 
    “opposite in character or nature,” or “mutually opposed.” Webster’s Third New 
    International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests 
    that the state court’s decision must be substantially different from the relevant 
    precedent of this Court. The Fourth Circuit’s interpretation of the “contrary to” 
    clause accurately reflects this textual meaning. A state-court decision will certainly 
    be contrary to our clearly established precedent if the state court applies a rule that 
    contradicts the governing law set forth in our cases.                
Williams, 529 U.S. at 405. The Court went on to offer, as an example of something that is not 
“contrary to” clearly established federal law, the following:             
    [A] run-of-the-mill state-court decision applying the correct legal rule from our 
    cases  to  the  facts  of  a  prisoner’s  case  would  not  fit  comfortably  within 
    § 2254(d)(1)’s  “contrary  to”  clause.  Assume,  for  example,  that  a  state-court 
    decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland 
    [v. Washington, 466 U.S. 668 (1984),] as the controlling legal authority and, 
    applying that framework, rejects the prisoner’s claim. Quite clearly, the state-court 
    decision  would  be  in  accord  with  our  decision  in  Strickland  as  to  the  legal 
    prerequisites for establishing an ineffective-assistance claim, even assuming the 
    federal court considering the prisoner’s habeas application might reach a different 
    result applying the Strickland framework itself. It is difficult, however, to describe 
    such  a  run-of-the-mill  state-court  decision  as  “diametrically  different”  from, 
    “opposite in character or nature” from, or “mutually opposed” to Strickland, our 
    clearly established precedent. Although the state-court decision may be contrary to 
    the federal court’s conception of how Strickland ought to be applied in that 
    particular case, the decision is not “mutually opposed” to Strickland itself. 
Id. at 406. Therefore, because the trial court applied the correct standard, Petitioner can only 
overcome the deference afforded state court decisions if the determinations regarding Petitioner’s 
ineffective assistance claims are unreasonable applications of Strickland or if the trial court’s 
resolutions were based on unreasonable determinations of the facts. 28 U.S.C. 2254(d). 
         2.   Ground  IV(i)—Failure  to  Request  Adjournment  of  Preliminary 
              Examination                                                
    Petitioner first faults trial counsel for not seeking an adjournment of the preliminary 
hearing. (Br. Supp. § 2254 Pet., ECF No. 6, PageID.34.) According to Petitioner, “counsel had not 
yet received all of the discovery needed for cross-examination of the witnesses” before the 
preliminary examination. (Id., PageID.35.) Petitioner acknowledges that counsel filed a motion to 
adjourn the preliminary examination on that basis, and that counsel also sought an adjournment at 
the hearing, but that the request was denied. (Id.) The district court told counsel “it would entertain 
a renewed request for an adjournment if trial counsel believed [he] could not cross-examine any 
particular witness due to lack of discovery, but ruled that the preliminary examination would 
commence.” (Id.) According to Petitioner, counsel failed to renew the request even though “he 
could not effectively cross-examine the eyewitnesses regarding their examination of [Petitioner] 
because of the missing discovery.” (Id.) Petitioner goes on to suggest that counsel failed to cross-
examine Forbes and Means regarding their gang affiliations, if any, during the preliminary 

examination. (Id., PageID.36.)                                            
    Petitioner raised this claim in his Rule 6.502 motion, and the trial court dismissed it in its 
May 12, 2022 opinion and order, stating:                                  
    [Petitioner]  complains  that  his  lawyer  was  ineffective  for  failing  to  seek  an 
    adjournment of his preliminary examination because he had not received complete 
    discovery from the prosecuting attorney. This argument fails. The record is clear 
    that defense counsel in fact sought an adjournment for two reasons, one of which 
    was a failure of the prosecution to provide him with complete discovery. The record 
    shows that defense counsel was given a full and fair hearing on his motion to 
    adjourn,  including  arguing  that  his  “effective  cross  examination”  would  be 
    “significantly benefitted if there could be more time” for discovery. Prelim Tr, pg 
    4. After listening to the prosecuting attorney’s objection, the district judge denied 
    the motion.                                                          
    The district judge did provide a safety valve; she stated that if defense counsel could 
    not “effectively cross examine that witness, [defense counsel] may then request an 
    adjournment  and  that  would  be  entertained  by  the  court.”  Prelim  Tr,  pg  9. 
    [Petitioner] has not stated with any specificity which witnesses defense counsel 
    could not effectively cross examine. The only hint to his reasoning is that discovery 
    produced after the preliminary examination indicate[d] that investigating officers 
    asked two witnesses if they were members of a street gang and the witnesses denied 
    it. It is unclear how this information—that the police asked about gang membership 
    and the witnesses denied being in a gang—would have helped defense counsel in 
    any significant way.2                                                
    [Petitioner] has failed to convince this court that had defense counsel . . . asked a 
    second time for an adjournment that it would likely been granted, or if it had been 
    granted, it would have made a difference. [Petitioner] has not suggested that a 
    question (which is not evidence) about gang membership and a denial of gang 
    membership (which is evidence) would have led the District Court to refuse to bind 
    over [Petitioner].                                                   
                              * * *                                      
    This court recognizes why some of the witness’ gang involvement, if any, is 
    relevant to his theory of the case. He argues that the underlying shooting was gang 
    related, that the gang rivalry had nothing to do with him, and that someone else (a 
    rival gang member) shot the two victims. But [Petitioner] has merely suggested 
    that, at best, the magistrate would have heard a conflict of evidence. Certainly, 
    [Petitioner] has not stated with specificity why the results of the preliminary 
    examination would likely have been different.                        
    ___________________                                                  
    2 One witness specifically mentioned in [Petitioner’s] brief, Jamond Means, denied 
    being in a gang during his trial. See Trial Tr, vol IV, pg 59.       
(ECF No. 8-14, PageID.673–674.)                                           
    As set forth supra, in his § 2254 petition, Petitioner merely reiterates the arguments he 
raised in his Rule 6.502 motion and fails to explain how the trial court’s decision was contrary to, 
or an unreasonable application of, Strickland. “A preliminary hearing is ordinarily a much less 
searching exploration into the merits of a case than a trial, simply because its function is the more 
limited one of determining whether probable cause exists to hold the accused for trial.” Barber v. 
Page, 390 U.S. 719, 725 (1968). Petitioner fails to explain, and the Court fails to discern, how 
adjournment  of  the  preliminary  hearing  so  that  trial  counsel  could  question  some  of  the 
prosecution’s witnesses regarding their alleged gang membership would have led to the district 
court deciding to not bind over Petitioner on the charges. Instead, as the trial court recognized, a 
district court may not decline to bind over a defendant where there is a conflict of evidence, as that 
question should be left for a jury to decide. (Id., PageID.674.) Accordingly, for the reasons set 
forth above, Petitioner is not entitled to relief with respect to this assertion of ineffective assistance 
of trial counsel.                                                         
         3.   Ground IV(ii)—Failure to Retain Experts                    
    Petitioner next faults trial counsel for failing to retain “an identification expert and a ‘gang’ 
expert.” (Br. Supp. § 2254 Pet., ECF No. 6, PageID.34.) In his petition, Petitioner suggests that a 
photograph of Jamond Means, Tasia Harris, and Nashay Minter that was taken before the “critical 
events” show all three of them “throwing up” gang signs, and that Jordan Forbes’ sister told police 
that the shooting was gang-related. (Id., PageID.37.) Petitioner argues further an identification 
expert could have been helpful because, according to Petitioner, the witnesses’ later identification 
of Petitioner was tainted by the fact that they had seen a group photograph of the Ruff Riders 

motorcycle group, of which Petitioner was a member, on Facebook, before being shown the photo 
array by law enforcement. (Id., PageID.40.)                               
    Petitioner raised this claim in his Rule 6.502 motion, and the trial court rejected it in its 
June 28, 2023 opinion and order, stating:                                 
    [Petitioner] next argues that his trial counsel was ineffective for failing to call a 
    false  identification  expert  and/or  gang  expert.  In  his  brief,  [Petitioner] 
    acknowledges that he suggested to his trial counsel that a “gang expert” should be 
    called. He also acknowledges that he and trial counsel spoke about an “ID expert,” 
    but that trial counsel explained to him that such an expert was not needed. In other 
    words, trial counsel was aware of the possibility of such expert witnesses but 
    declined to utilize them.                                            
    Such is a matter of trial strategy. Davis, 205 Mich. App. at 368. According to the 
    Michigan Supreme Court, “the inquiry is not whether a defendant’s case might 
    conceivably have been advanced by alternate means . . . [but to] determine whether 
    counsel made errors so serious that counsel was not functioning as the counsel 
    guaranteed  the  defendant  by  the  Sixth  Amendment  and  that  the  deficient 
    performance prejudiced the defense.” People v. LeBlanc, 465, 582-83; 640 N.W.2d 
    246 (2000) (quotation omitted). The Court finds no error in this strategy. Trial 
    counsel’s decision to decline to call experts does not fall below an objective 
    standard of reasonableness as set forth in Strickland.               
(ECF No. 8-18, PageID.757–758.)                                           
    The trial court’s determination tracks with clearly established federal law. The Supreme 
Court has recognized that “[t]he selection of an expert witness is a paradigmatic example of the 
type of ‘strategic choic[e]’ that, when made ‘after a thorough investigation of [the] law and facts,’ 
is ‘virtually unchallengeable.’” Hinton v. Alabama, 571 U.S. 263, 275 (2014) (quoting Strickland, 
466 U.S. at 690). Here, other than Petitioner’s speculation, there is no record evidence suggesting 
that Petitioner’s counsel did not investigate the possibility of calling expert witnesses, particularly 
a  “gang”  expert,  to  testify  at  trial.  Absent  such  support,  Petitioner  cannot  overcome  the 
presumption that counsel’s actions fell within “the wide range of professionally competent 
assistance.” Strickland, 466 U.S. at 690.                                 
    Moreover, Petitioner fails to provide any evidence that such experts were even available to 

testify on his behalf. “A defendant cannot simply state that the testimony would have been 
favorable; self-serving speculation will not sustain an ineffective assistance claim.” United States 
v. Ashimi, 932 F.3d 643, 650 (7th Cir. 1991) (footnote omitted); see also Lagrone v. Parris, No. 
23-5177, 2023 WL 5623279, at *4 (6th Cir. Aug. 7, 2023) (“Lagrone did not identify an expert his 
trial counsel could have called or indicate what an expert could have testified that would have been 
relevant to his defense. The speculative impact of expert testimony is not enough to prove prejudice 
under Strickland.”); Pillette v. Berghuis, 408 F. App’x 873, 887 (6th Cir. 2010) (stating that “[t]he 
salient point is that nobody knows what she would have said. Speculation cannot suffice to 
establish the requisite prejudice.”). In any event, Petitioner also fails to demonstrate that, given the 

overwhelming evidence against him, testimony from either an “identification” or a “gang” expert 
would have altered the outcome of his trial in any way. Petitioner, therefore, is not entitled to relief 
with respect to this assertion of ineffective assistance of trial counsel. 
         4.   Ground IV(iii)—Failing to Investigate Lay Witnesses        
    Next, Petitioner contends that trial counsel failed to investigate lay witnesses who “would 
have supported [Petitioner’s] misidentification and alibi defense.” (Br. Supp. § 2254 Pet., ECF No. 
6, PageID.34.) According to Petitioner, trial counsel failed to “interview half the people who 
[P]etitioner identified as potentially having helpful information.” (Id., PageID.44.) Petitioner 
names Nashay Minter and Tasia Harris as potential witnesses. (Id.) He mentions that Ms. Minter 
originally told detectives that “she and the other witnesses were unable to identify the shooter 
because his hat was pulled down over his face and it was dark.” (Id.) Moreover, Harris “told the 
police she was not in a position to see the shooter because Mr. Means, who never had a chance to 
turn around, was obstructing her view, and when she ‘heard gunshots [she] blacked out.’” (Id.) 
    Petitioner also mentions that he met Jamond Means’ father, Jamond Means, Sr., while in 
jail, and that Means Sr. told Petitioner that his son had told him that “he and his friends never saw 

the shooter,” and that his cousin “Emo” had information suggesting that Petitioner did not shoot 
the teenagers. (Id.) Moreover, Petitioner contends that his “jail neighbor,” Shane Toris, “told him 
that he had overheard the conversation with Means Sr. and would be willing to testify.” (Id., 
PageID.45.) Petitioner goes on to mention that Erin Forbes told the police that her brother, Jordan 
Forbes, was a member of the Bemis Street Gang, but that counsel “neither interviewed her nor 
subpoenaed her for trial.” (Id.)                                          
    Petitioner also contends that counsel should have called Means’ mother, Alisha Whitehead, 
because the Whiteheads had “done research on Facebook and circulated photos of [Petitioner] and 
his motorcycle group to the witnesses.” (Id.) Petitioner suggests that Alisha Whitehead “told police 

that one of her children’s fathers was a barber at ‘Wealthy Cuts,’” and that the father had 
“overheard people in the shop say that Mr. ‘Emo’ Moore shot Alisha’s son and his friends.” (Id.) 
Petitioner also suggests that Jordan Forbes’ uncle, Rashawn Burton, was “the only true eyewitness 
to the shooting.” (Id., PageID.46.)                                       
    Petitioner raised this claim in his Rule 6.502 motion, and the trial court rejected it in its 
June 28, 2023 opinion and order, stating:                                 
    In this case, [Petitioner] has not demonstrated that trial counsel’s decision not to 
    call certain witnesses deprived him of a substantial defense. [Petitioner] argues that 
    “[a]ttorney Stanley’s failure to investigate the need for witnesses . . . was not 
    reasonable professional judgment nor the basis of a sound trial strategy because of 
    the inadequate investigation and failure to “‘pursue all leads . . .’” citing Grant, 470 
    Mich. at 486–87. However, unlike Grant, in this case the proffered witnesses’ 
    respective testimony was in furtherance of a defense strategy that trial counsel was 
    already employing at trial, namely that [Petitioner] was misidentified. [Petitioner] 
    asserts that these additional witnesses would have provided helpful testimony to his 
    defense, but he does not sufficiently explain how this overcomes the presumption 
    set forth in Strickland v. Washington, 466 U.S. 668 (1984). In addition, this case 
    was not, as [Petitioner] claims, “founded wholly on the eyewitness statements 
    implicating him.” Rather, there was additional evidence that was used by the People 
    to  convict  [Petitioner]:  cell  phone  and  video  evidence,  which  supported  the 
    conclusion that, after being dropped home by his friend, [Petitioner] drove back 
    downtown. In sum, trial counsel’s failure to conduct a more thorough investigation 
    into these witnesses and call them at trial does not fall below an objective standard 
    of reasonableness as set forth in Strickland.                        
(ECF No. 8-18, PageID.757 (record citations omitted).)                    
    Petitioner offers no evidence, much less clear and convincing evidence, to overcome the 
presumption of correctness afforded to the trial court’s factual determinations. Notably, Petitioner 
provided only an affidavit from Shane Toris with his Rule 6.502 motion and did not provide 
affidavits from any of his other putative witnesses. As set forth above, Toris offered to testify about 
a conversation he overheard between Petitioner and Means Sr. However, any such testimony from 
Toris would certainly have been inadmissible as hearsay, as Petitioner would have wanted to offer 
it for the truth of the matter asserted. Notably, Petitioner offers no evidence that any of these 
individuals were even available to testimony at his trial, and he offers nothing but his own 
assertions to support a conclusion that counsel’s failure to present their testimony resulted in 
prejudice to his defense. See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (affirming denial 
of an ineffective assistance claim based on counsel’s failure to call witnesses where a petitioner 
did not “introduce [ ] affidavits or any other evidence establishing what they would have said”); 
Ashimi, 932 F.3d at 650. Petitioner, therefore, is not entitled to relief with respect to this assertion 
of ineffective assistance of trial counsel.                               
         5.   Ground IV(iv)—Failing to Object to Prosecutorial Misconduct 
    Finally, as his fourth assertion of ineffective assistance of counsel, Petitioner contends that 
trial counsel failed to object to “numerous instances of prosecution misconduct.” (Br. Supp. § 2254 
Pet., ECF No. 6, PageID.47.) First, Petitioner faults counsel for failing to object to the “multiple 
instances of perjury” committed by the prosecution’s witnesses. (Id.) Petitioner also suggests that 

counsel should have objected to the prosecutor’s improper vouching for the witnesses’ credibility. 
(Id., PageID.48.) Finally, Petitioner faults counsel for “[f]ail[ing] to object to the prosecutor’s use 
of the compilation video.” (Id., PageID.49.)                              
    Petitioner raised these arguments in his Rule 6.502 motion, and the trial court dismissed 
them in its May 12, 2022 opinion and order. With respect to Petitioner’s “false testimony” 
assertion, the trial court wrote: “It is difficult to conclude that trial court’s performance was 
objectively unreasonable when [Petitioner] only makes a vague complaint of ‘failing to object’ to 
something that would clearly not have been a proper objection under the Michigan Rules of 
Evidence.” (ECF No. 8-14, PageID.677.) The trial court noted further that Petitioner had advanced 
no argument that he “did not make to both the [Michigan] Court of Appeals and the [Michigan] 

Supreme Court.” (Id.) With respect to the video issue, the trial court noted that because the court 
of appeals ruled that use of the video was proper, it would have been futile for counsel to object to 
its use by the prosecution during closing arguments. (Id., PageID.678.)   
    Here, Petitioner fails to demonstrate that the state courts’ rejection of this assertion of 
ineffective assistance is contrary to, or an unreasonable application of, Strickland. As discussed 
supra, this Court has already concluded that the prosecution did not present false testimony and 
did not improperly vouch for the credibility of the witnesses. Likewise, the prosecution did not 
commit misconduct by using the compilation video during closing arguments. It simply would 
have been futile for counsel to argue otherwise, and “omitting meritless arguments is neither 
professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013); 
see also Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008) (“No prejudice flows from the failure 
to raise a meritless claim.”). Petitioner, therefore, is not entitled to relief with respect to this 
assertion of ineffective assistance of trial counsel.                     
         6.   Summary                                                    

    In sum, Petitioner has failed to demonstrate that the state courts’ rejection of any of his 
ineffective assistance claims was contrary to, or an unreasonable application of, Strickland, 
Petitioner, therefore, is not entitled to relief with respect to habeas ground IV. 
    C.   Grounds Asserting Trial Court Error                             
         1.   Ground II—Preclusion of Defense Witness                    
    As his second ground for relief, Petitioner contends that he was denied a fair trial when 
“the trial court prevented him from presenting a defense when the trial court precluded the 
petitioner from calling a res gestae witness who was present at the Ros[a] Parks Circle during the 
fighting who heard an unidentified black male threat[en] to shoot someone.” (Br. Supp. § 2254 
Pet., ECF No. 6, PageID.31.)                                              
    Petitioner raised this claim on direct appeal, and the Michigan Court of Appeals rejected 

it, stating:                                                              
    At trial, [Petitioner] indicated that he intended to call a witness, who was present 
    during the fights at Rosa Parks Circle, to testify that he heard an unidentified “black 
    male” scream: “I’m going to shoot you.” There were numerous individuals fighting 
    at Rosa Parks Circle, and there is no indication that the threat was directed toward 
    one of the teenagers involved in this case. Nevertheless, defense counsel argued 
    that the statement was relevant because the threat suggested that someone else 
    might have had a motive to shoot at the teenagers. The prosecutor objected to the 
    admission of this testimony based on hearsay. Defense counsel conceded that the 
    proposed testimony was hearsay, but defense counsel argued that it was admissible 
    as an excited utterance, MRE 803(2), or under the catchall exception provided by 
    MRE 804(b)(7). Citing MRE 403, the trial court excluded the evidence, explaining 
    that any connection between the threat and the events at issue was too speculative 
    and might confuse the jury.                                          
    Hearsay is a statement, other than the one made by the declarant while testifying at 
    trial, that the proponent offers to prove the truth of the matter asserted. MRE 801(c). 
    Defense counsel offered the witness’ testimony to prove the truth of the matter 
    asserted: that the unidentified declarant intended to shoot someone. Thus, the 
    statement was inadmissible hearsay unless an exception applied. MRE 801(c); 
    MRE 802. Even assuming that the statement was admissible under an exception to 
    the hearsay rule, the trial court could properly bar its admission under MRE 403, if 
    the “probative value” of the evidence was “substantially outweighed by the danger 
    of unfair prejudice, confusion of the issues, or misleading the jury . . . .” 
    Relevant evidence is “evidence having any tendency to make the existence of any 
    fact that is of consequence to the determination of the action more probable or less 
    probable than it would be without the evidence.” MRE 401. In this case, [Petitioner] 
    contends that the hearsay statement was relevant to the identity of the shooter 
    insofar as the statement suggested that someone other than [Petitioner] had a motive 
    to shoot at the teenagers. However, there were numerous individuals fighting at 
    Rosa Parks Circle, and, when seeking to introduce the statement, defense counsel 
    offered no reason to suppose that the threat by the unidentified declarant was 
    directed at one of the teenagers involved in this case. Absent a basis to reasonably 
    infer that the statement was directed at the teenagers in question, any assertion that 
    the statement demonstrates that someone other than [Petitioner] wished to shoot 
    one  or  all  of  the  teenagers  is  mere  conjecture  and  speculation.  Because  this 
    statement’s relevance rested on speculative inferences, it had little—if any—
    probative value. See McCormick on Evidence § 185 (7th ed.) (“[E]vidence lacking 
    in substantial probative value may be condemned as ‘speculative.’”). And, the trial 
    court did not abuse its discretion by concluding that the statement’s scant probative 
    value was substantially outweighed by the risk that admission of a statement made 
    by an unknown declarant to an unspecified individual would confuse or mislead the 
    jury, particularly where the prosecution could not cross-examine the declarant. 
    Under these circumstances, the trial court’s decision to bar the hearsay testimony 
    under MRE 403 fell within the range of reasonable and principled outcomes, Yost, 
    278 Mich. App. at 353, and the exclusion of this evidence did not deny [Petitioner] 
    the right to present a defense, Unger, 278 Mich. App. at 250–251.    
Armstrong, 2017 WL 6389895, at *4.                                        
    To the extent that Petitioner asserts that the state courts erred in excluding this witness’s 
testimony under Michigan Rule of Evidence 403, he fails to state a claim upon which habeas relief 
may be granted. State courts are the final arbiters of state law, and the federal courts will not 
intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The decision of the state 
courts on a state law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 
(1983); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a 
state court’s interpretation of state law, including one announced on direct appeal of the challenged 
conviction, binds a federal court sitting in habeas corpus.”). As the Supreme Court explained in 
Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or 
improperly excluded under state law “is no part of the federal court’s habeas review of a state 
conviction  [for]  it  is  not  the  province  of  a  federal  habeas  court  to  re-examine  state-court 

determinations on state-law questions.” Id. at 67–68. Thus, the court of appeals’ determination that 
the testimony was not admissible under the Michigan Rules of Evidence is axiomatically correct 
on habeas review.                                                         
    Even an axiomatically correct determination that testimony was admissible or inadmissible 
under state law does not preclude a determination that the admission or exclusion of the evidence 
was so fundamentally unfair that it violated the right to due process. “Generally, state-court 
evidentiary rulings cannot rise to the level of due process violations unless they offend[ ] some 
principle of justice so rooted in the traditions and conscience of our people as to be ranked as 
fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (internal quotation marks 

omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 
F.3d 496, 512 (6th Cir. 2003). This approach affords the state courts wide latitude for ruling on 
evidentiary matters. Seymour, 224 F.3d at 552.                            
    Further, under the AEDPA, a federal court may not grant relief if it would have decided 
the evidentiary question differently. A federal court may only grant relief if Petitioner is able to 
show that the state court’s evidentiary ruling was in conflict with a decision reached by the 
Supreme Court on a question of law, or if the state court decided the evidentiary issue differently 
than the Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 
F.3d 846, 860 (6th Cir. 2000); see also Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020) (stating 
that, to obtain habeas relief based on an allegedly improper evidentiary ruling, a petitioner must 
identify “‘a Supreme Court case establishing a due process right with regard to the specific kind 
of evidence’ at issue”).                                                  
    In his brief supporting his § 2254 petition, Petitioner contends that the trial court’s 
exclusion of this witness’s testimony violated his right to present a defense. (Br. Supp. § 2254 Pet., 

ECF No. 6, PageID.31–32.) “Whether rooted directly in the Due Process Clause of the Fourteenth 
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the 
Constitution guarantees criminal defendants a meaningful opportunity to present a complete 
defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation marks and citations 
omitted). A criminal defendant, however, “does not have an unfettered right to offer evidence that 
is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” United 
States v. Blackwell, 459 F.3d 739, 753 (6th Cir. 2006) (internal alterations and quotation marks 
omitted). Rather, “the Constitution permits judges to exclude evidence that is repetitive, only 
marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues.” 

Holmes, 547 U.S. at 326–27 (internal alterations and quotation marks omitted). Thus, evidentiary 
rules abridge the right to a meaningful opportunity to present a defense if such rules both 
“infring[e] upon a weighty interest of the accused” and are “arbitrary” or “disproportionate to the 
purposes they are designed to serve.” United States v. Scheffer, 523 U.S. 303, 308 (1998). 
    Here, Petitioner fails to meet his burden of demonstrating that the evidentiary ruling 
excluding this witness’s testimony infringed upon his due process rights. Petitioner merely 
reiterates the arguments that he raised in—and that were rejected by—the Michigan Court of 
Appeals. Notably, Petitioner fails to identify this putative witness, let alone provide any indication 
that this individual was available and willing to testify the way Petitioner suggests. Moreover, 
Petitioner has provided no evidence to counter the court of appeals’ statement that there were 
multiple individuals fighting at the Rosa Parks Circle at the time of the incident, and he offers no 
evidence to suggest that the putative witness would be able to definitively testify that he overheard 
the unidentified black male in question direct the threat to shoot towards the teenagers with whom 
Petitioner had been fighting. Given the speculative nature of this putative testimony, and in light 

of the fact that the record demonstrates that Petitioner was able to argue that he was not the 
individual who shot the teenagers, the Court cannot agree with Petitioner that the trial court’s 
evidentiary ruling denied Petitioner “a meaningful opportunity to present a complete defense.” 
Holmes, 547 U.S. at 324.                                                  
         2.   Ground V—Jury Verdict Form                                 
    As his fifth ground for relief, Petitioner avers that the jury verdict form was defective 
because it did not provide an option for “not guilty” as to each of the lesser-included offenses 
charged. (Br. Supp. § 2254 Pet., ECF No. 6, PageID.52.) According to Petitioner, this defect 
required reversal under People v. Wade, which was affirmed by the Michigan Supreme Court in 
People v. Erganian. (Id.)                                                 

    Petitioner goes on to argue that he has a right to a properly instructed jury under the Sixth 
and Fourteenth Amendments. (Id.) He avers that “[w]ithout any requests from counsel it is the 
duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, 
so that they may have a clear and correct understanding of what it is they are to decide, and he 
shall state to them fully the law applicable to the facts.” (Id., PageID.53.) Petitioner argues further 
that trial and appellate counsel rendered ineffective assistance by failing to object to the defective 
verdict form at trial and on direct appeal. (Id., PageID.56.)             
    Petitioner raised this claim in his Rule 6.502 motion, and the trial court rejected it in its 
June 28, 2023 opinion and order, stating:                                 
[Petitioner’s] final argument is that the verdict form used in his trial was defective. 
[Petitioner] claims that his verdict form was similar to the one used in People v. 
Wade, 283 Mich. App. 462, 468; 771 N.W.2d 447 (2009), where the court found 
that “the verdict form was defective, requiring reversal, because it did not give the 
jury the opportunity to return a general verdict of not guilty.” [Petitioner] argues 
there is no option for the jury to choose “Not Guilty” as to the lesser offense of 
Assault with Intent to do Great Bodily Harm Less Than Murder. [Petitioner] also 
claims that the failure of Mr. Stanley to raise this issue on direct appeal constitutes 
ineffective assistance of counsel and suffices as “good cause” to raise it in his MCR 
6.500 motion. The Court will address the substance of [Petitioner’s] argument. 
 The verdict form in this case reads as follows:                    
 COUNT 1:                                                           
 On the charge of Assault With Intent to Murder Jordan Forbes, we the jury 
 find the defendant, Rodney Armstrong:                              
 [check one]                                                        
 ________ Not Guilty                                                
 ________ Guilty of Assault With Intent to Murder                   
 ________ Guilty of the lesser offense of Assault With Intent To Do Great 
 Bodily Harm Less Than Murder                                       
 COUNT 2:                                                           
 On the charge of Assault With Intent to Murder Jamond Means, we the jury 
 find the defendant, Rodney Armstrong:                              
 [check one]                                                        
 ________ Not Guilty                                                
 ________ Guilty of Assault With Intent to Murder                   
 ________ Guilty of the lesser offense of Assault With Intent To Do Great 
 Bodily Harm Less Than Murder                                       
 COUNT 3:                                                           
 On the charge of Possession of a Firearm at the Time of Commission or 
 Attempted Commission of a Felony, we the jury find the defendant, Rodney 
 Armstrong:                                                         
 [check one]                                                        
 ________ Not Guilty                                                
 ________ Guilty                                                    
 COUNT 4:                                                           
 On the charge of Possession of a Firearm by a Felon, we the jury find the 
 defendant, Rodney Armstrong:                                       
 [check one]                                                        
 ________ Not Guilty                                                
 ________ Guilty                                                    
When providing the jury instructions, the Court stated:              
 I prepared a verdict form listing the possible verdicts, and here it is. It 
 consists of two pages, and it lists each of the four counts.       
 The foreperson of the jury will report your verdict in the following manner: 
 On Count 1 of the charge of assault with intent to murder Jordan Forbes, 
 we, the jury, find the defendant, Rodney Armstrong—and you check one 
 line and one line only reflecting your unanimous decision: not guilty, guilty 
 of assault with intent to murder, or guilty of the lesser offense of assault 
 with intent to do great bodily harm less than murder.              
 Count 2 is just like Count 1, except that the victim alleged here is Jamond 
 Means. You must make that separate analysis and separate unanimous 
 decision.                                                          
 Count 3, on the second page, speaks of possession of a firearm at the time 
 of the commission or attempted commission of a felony, and we, the jury, 
 find the defendant, Rodney Armstrong—then you report either of two 
 unanimous verdicts; not guilty or guilty.                          
 And Count 4 deals with the charge of possession of a firearm by a felon; 
 we, the jury, find the defendant, Rodney Armstrong,--and again, you report 
 your separate, independent, and unanimous verdict of not guilty or guilty. 
Defense did not object to the instructions.                          
By contrast, the verdict form in Wade read as follows:               
                  POSSIBLE VERDICTS                                 
   YOU MAY RETURN ONLY ONE VERDICT FOR EACH COUNT                   
      COUNT 1-HOMICIDE-MURDER FIRST DEGREE-PREMEDITATED                  
      (EDWARD BROWDER, JR)                                               
      ___ NOT GUILTY                                                     
      ___ GUILTY                                                         
                              OR                                         
      __ GUILTY OF THE LESSER OFFENSE OF-HOMICIDE-MURDER                 
      SECOND DEGREE (EDWARD BROWDER, JR.)                                
                              OR                                         
      __  GUILTY  OF  THE  LESSER  OFFENSE  OF-INVOLUNTARY               
      MANSLAUGHTER-FIREARM INTENTIONALLY AIMED (EDWARD                   
      BROWDER, JR.)                                                      
      COUNT 2-WEAPONS-FELONY FIREARM                                     
      __ GUILTY                                                          
      __ NOT GUILTY                                                      
    In Wade, the court found that the verdict form’s use of “or” in between the lesser 
    offenses was potentially confusing about what verdict could be returned. See 283 
    Mich. App. at 468. In this case, however, the “not guilty” option was not limited 
    solely to the original charged offense like the form used in Wade. Rather, the jury 
    was given three options and told to select only one for each crime. Thus, contrary 
    to Wade, the verdict form in this case gave the jury the option of finding [Petitioner] 
    generally not guilty of each offense. [Petitioner] has not demonstrated plain error 
    related to the jury verdict form, and therefore, is not entitled to relief under this 
    claim.                                                               
(ECF No. 8-18, PageID.759–761.)                                           
    To obtain habeas relief based upon an allegedly improper jury instruction or verdict form, 
a petitioner must show that the instructions or form, taken as a whole, were “so infirm that they 
rendered the entire trial fundamentally unfair.” Doan v. Carter, 548 F.3d 449, 455 (6th Cir. 2008) 
(quoting Austin v. Bell, 126 F.3d 843, 846–47 (6th Cir. 1997)). Here, Petitioner fails to make this 
showing. As set forth supra, the trial court’s jury instructions, as well as the verdict form, clearly 
indicated that for each count, the jury could mark only one verdict. Moreover, the jury instructions 
and the verdict form specified that for Counts One and Two, the jury could return one of three 
verdicts—not guilty, guilty of assault with intent to murder, or guilty of the lesser-included offense 
of assault with intent to do great bodily harm less than murder. The Sixth Circuit has affirmed the 
denial of federal habeas relief in substantially similar circumstances. See Meridy v. Ludwick, No. 
17-2006, 2018 WL 4191337, at *3 (6th Cir. May 21, 2018) (concluding that the petitioner’s due 

process rights were not violated because the jury verdict form gave the jury the option of returning 
a general not guilty verdict, as well as verdicts of first-degree premeditated murder and the lesser 
offense of second-degree murder).                                         
    Because the verdict form in Petitioner’s case plainly provided the jury an option to return 
a general verdict of not guilty for both assault with intent to murder charges, the verdict form did 
not render Petitioner’s trial fundamentally unfair. Furthermore, it would have been futile for both 
trial and appellate counsel to challenge the jury verdict form on that basis. See Coley, 706 F.3d at 
752; Mahdi, 522 F.3d at 638. Petitioner, therefore, is not entitled to relief with respect to habeas 
ground V.                                                                 

         3.   Ground VI—Denial of Request for New Trial                  
    As his sixth and final ground for relief, Petitioner contends that the trial court erred by 
denying his request for a new trial “based in part on res gestae witness[es] Martin Broyles and 
Shane  Toris  and  their  proffered  sworn  statement  in  support  when  the  testimony  is  newly 
discovered, not merely cumulative, could not have been reasonably produced at trial[,] and makes 
a different result probable on retrial.” (Br. Supp. § 2254 Pet., ECF No. 6, PageID.57.)  
    Petitioner raised this claim in his Rule 6.502 motion, and the trial court rejected it, noting 
that Broyles “did not actually claim to have observed the shooting,” but that Broyles “state[d] in 
his affidavit that he had a conversation years after the shooting by the alleged ‘real shooter.’” (ECF 
No. 8-18, PageID.759.) The trial court concluded that any such testimony by Broyles would 
constitute impermissible hearsay and, therefore, would not have made “a different result probable 
on retrial.” (Id.)                                                        
    To the extent Petitioner is attempting to assert a claim of actual innocence premised upon 
newly discovered evidence, he fails to state a cognizable federal claim. The Supreme Court has 
stated: “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). But the 
Herrera Court did not close the door completely, stating in dicta that “in a capital case a truly 
persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a 
defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to 
process  such  a  claim.”  Id.  at  417.  Thus,  even  without  the  occurrence  of  any  independent 
constitutional violation during the state criminal proceeding, federal habeas relief might be 
warranted for “truly persuasive demonstration of actual innocence,” provided: (1) the habeas 
petition seeks relief in a capital case, in which case such a demonstration of actual innocence 

“would render the execution of a defendant unconstitutional”; and (2) there is “no state avenue 
open to process such a claim.” Id. The Supreme Court emphasized that “the threshold showing for 
such an assumed right would necessarily be extraordinarily high.” Id.; see also House v. Bell, 547 
U.S. 518, 555 (2006) (“In Herrera, however, the Court described the threshold for any hypothetical 
freestanding innocence claim as ‘extraordinarily high.’”); Cress v. Palmer, 484 F.3d 844, 854–55 
(6th Cir. 2007).                                                          
    Two years after Herrera, the Supreme Court held that a claim of actual innocence can be 
raised  “to  avoid  a  procedural  bar  to  the  consideration  of  the  merits  of  [the  petitioner's] 
constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, 
where a constitutional violation has probably resulted in the conviction of one who is actually 
innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for 
the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). In Schlup, the Supreme 
Court held that a credible showing of actual innocence was sufficient to enable a court to reach the 
merits of an otherwise procedurally barred habeas petition. Schlup, 513 U.S. at 317. The actual 

innocence claim in Schlup is “not itself a constitutional claim, but instead a gateway through which 
a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the 
merits.” Id. at 315 (citing Herrera, 506 U.S. at 404). Thus, the Supreme Court distinguished 
between a procedural innocence claim, which can permit a petitioner to overcome procedural 
obstacles  that  would  otherwise  preclude  review  of  underlying  constitutional  claims,  and  a 
substantive or “free-standing” claim of innocence discussed in Herrera.   
    This Court may grant habeas corpus relief only when the state court has violated or 
unreasonably applied a clearly established holding of the Supreme Court. See 28 U.S.C. § 2254(d); 
Williams,  529  U.S.  at  412.  The  Sixth  Circuit  has  acknowledged  that  the  actual  innocence 

“equitable-exception  [to  the  AEDPA  statute  of  limitations]  doctrine  is  not  a  freestanding 
substantive claim for habeas relief. The Supreme Court has not decided whether actual innocence 
is a substantive ground for relief.” Hubbard v. Rewerts, 98 F.4th 736, 742 (6th Cir. 2024); see also 
Smith v. Nagy, 962 F.3d 192, 206 (6th Cir. 2020) (citing Schlup and Herrera for the proposition 
that freestanding claims of actual innocence are not cognizable on habeas corpus review); Cress, 
484 F.3d at 854 (citing cases for the same proposition). Accordingly, in the absence of clearly 
established Supreme Court precedent establishing a freestanding claim of actual innocence, 
Petitioner’s claim is without merit. Even if Petitioner could invoke this exception and obtain 
habeas relief on his freestanding innocence claim, he would have to meet both of the requirements 
set forth above and then overcome the “extraordinarily high” threshold. Petitioner fails the first 
requirement. This is not a capital case, and, thus, the concern about the unconstitutionality of 
executing a defendant who has shown persuasive evidence of actual innocence is not implicated. 
See Herrera, 506 U.S. at 417 (“We first point out the obvious—that this is not, in fact, a capital 
case.”). Accordingly, for the reasons set forth above, Petitioner is not entitled to relief with respect 

to habeas ground VI.                                                      
IV.  Certificate of Appealability                                         
    Under  28  U.S.C.  §  2253(c)(2),  the  Court  must  determine  whether  a  certificate  of 
appealability should be granted. A certificate should issue if Petitioner has demonstrated a 
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).  
    The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a 
certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). 
Rather, the district court must “engage in a reasoned assessment of each claim” to determine 
whether a certificate is warranted. Id. Each issue must be considered under the standards set forth 
by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. 

Consequently, this Court has examined each of Petitioner’s claims under the Slack standard. Under 
Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that 
reasonable jurists would find the district court’s assessment of the constitutional claims debatable 
or wrong.” Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude 
the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 
Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full 
merits review, but must limit its examination to a threshold inquiry into the underlying merit of 
Petitioner’s claim. Id.                                                   
     The Court finds that reasonable jurists could not conclude that this Court’s denial of 
Petitioner’s claim was debatable or wrong. Therefore, the Court will deny Petitioner a certificate 
of appealability. Moreover, although Petitioner has failed to demonstrate that he is in custody in 
violation of the Constitution and has failed to make a substantial showing of the denial of a 
constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal 

would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).  
                            Conclusion                                    
     The Court will enter a Judgment denying the petition, as well as an Order denying a 
certificate of appealability.                                             

Dated:      July 9, 2025              /s/ Jane M. Beckering                
                                   Jane M. Beckering                      
                                   United States District Judge