Bogard 243123 v. Horton

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UNITED STATES DISTRICT COURT                           
              WESTERN DISTRICT OF MICHIGAN                           
                   NORTHERN DIVISION                                 
                         ______                                      

STEVE BERNARD BOGARD,                                                     

          Petitioner,         Case No. 2:20-cv-16                    

v.                                 Honorable Paul L. Maloney              

CONNIE HORTON,                                                            

          Respondent.                                                
____________________________/                                             
                        OPINION                                      
     This is a habeas corpus action brought by a state prisoner under
28 U.S.C. § 2254
.  
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary 
review of the petition to determine whether “it plainly appears from the face of the petition and 
any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”  Rule 4, 
Rules Governing § 2254 Cases; see
28 U.S.C. § 2243
.  If so, the petition must be summarily 
dismissed.  Rule 4; see Allen v. Perini,
424 F.2d 134, 141
(6th Cir. 1970) (district court has the 
duty to “screen out” petitions that lack merit on their face).  A dismissal under Rule 4 includes 
those petitions which raise legally frivolous claims, as well as those containing factual allegations 
that are palpably incredible or false.  Carson v. Burke,
178 F.3d 434, 436-37
(6th Cir. 1999).  After 
undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed 
because it fails to raise a meritorious federal claim.  The Court also will deny Petitioner’s motion 
to stay the petition and hold it in abeyance while he exhausts an additional ground for relief (ECF 
No. 8).                                                                   
                       Discussion                                    
I.   Factual allegations                                                  
     Petitioner Steve Bernard Bogard is incarcerated with the Michigan Department of 
Corrections  at  the  Chippewa  Correctional  Facility  (URF)  in  Kincheloe,  Chippewa  County, 
Michigan.  Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of the 
following offenses:  possession with intent to deliver less than 50 grams of cocaine,
Mich. Comp. 

Laws § 333.7401
(2)(a)(iv); being a felon in possession of a firearm (felon in possession),
Mich. 
Comp. Laws § 750
.224f; assault with a dangerous weapon,
Mich. Comp. Laws § 750.82
; and 
possession of a firearm during the commission of a felony (felony firearm),
Mich. Comp. Laws 
§ 750
.227b.  On February 23, 2017, the court sentenced Petitioner to respective prison terms of 2 
to 40 years, 8 to 60 years, 2 to 15 years, and 2 years.                   
     The following factual background is taken from the court of appeals opinion 
affirming Petitioner’s convictions and sentences.                         
     On  September  20,  2016,  Siad  Brown  called  the  police  to  report  that 
someone had shot at him.  When the police arrived, he emerged from a hiding place 
in some bushes and consented to the police searching his residence.  The police 
knocked on the door, announced themselves, and entered.  Inside, Bogard walked 
toward them from an area that another witness testified was near the basement. 
Bogard was searched.  Although he was unarmed and had no drug paraphernalia on 
his person, he was carrying $1,660 in cash.  The police searched the basement of 
the house and discovered 1.66 grams of cocaine and a loaded gun on some 
ductwork.  They also searched Bogard’s vehicle and discovered a digital scale and 
sandwich bags with the corner pieces torn out.                       
     The prosecution’s theory was that Bogard shot at Brown.  In support, they 
presented testimony from Brown that Bogard pointed a gun at him, so he ran away.  
Brown stated that while he was running, he thought he heard gunshots. Brown’s 
ex-girlfriend (who he was dating at the time) also testified that Bogard showed 
Brown the gun and pointed it at him.  Based on the testimony that Bogard possessed 
the gun, had drug paraphernalia in his vehicle, and had a large sum of cash on his 
person, the prosecution also argued that the cocaine belonged to Bogard and that 
he had essentially stashed both the drugs and the gun after shooting at Brown but 
                           2                                         
before the police arrived.  In his defense, Bogard testified that he never went into 
the basement. He also stated that he had a large sum of cash because he was going 
to get a money order for $1,000 to pay his mother’s mortgage and that he was going 
to use $600 to pay his car insurance.  Bogard also testified that other individuals 
used his vehicle and that he had not personally checked to see if anything out of the 
ordinary was in the vehicle before he used it.  The jury convicted Bogard as 
indicated above.                                                     
(Mich. Ct. App. Op., ECF No. 1, PageID.19-20.)                            
     Petitioner  appealed  his  convictions  and  sentences  to  the  Michigan  Court  of 
Appeals.  The brief on appeal filed by Petitioner’s attorney raised the first four grounds presented 
in this habeas petition.  (Def.-Appellant’s Br. on Appeal, ECF No. 1, PageID.51-73.)  Petitioner 
filed a pro per supplemental brief raising the issue presented as Petitioner’s fifth habeas ground.  
In an unpublished opinion issued on April 24, 2018, the court of appeals denied all claims and 
affirmed both the convictions and sentences.                              
     Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same 
five issues.  The supreme court denied leave to appeal on December 4, 2018.  (Mich. Order, ECF 
No. 1, PageID.27.)                                                        
     On December 16, 2019, Petitioner timely filed his habeas corpus petition.  The 
petition raises five grounds for relief, as follows:                      
I.   WHETHER  THE  TRIAL  COURT  ABUSED  ITS  DISCRETION  IN         
     RULING THAT THE PROSECUTION HAD SHOWN DUE DILIGENCE             
     IN ATTEMPTING TO PROCURE THE ATTENDANCE OF A CRUCIAL            
     WITNESS,  WHOSE  PRELIMINARY  EXAMINATION  TESTIMONY            
     WAS [] READ TO THE JURY IN LIEU OF HIS LIVE TESTIMONY,          
     THUS VIOLATING [PETITIONER’S] RIGHT TO CONFRONTATION.           
II.  WHETHER  THE  PROSECUTOR  IMP[RO]PERLY  SHIFTED  THE            
     BURDEN   OF  PROOF   DURING  CLOSING   AR[]GUMENT,              
     CONTRARY TO THE FOURTEENTH AMENDMENT.                           
                           3                                         
III.  WHETHER [PETITIONER’S] CONVICTION OF POSSESSION WITH           
     INTENT  TO  DELIVER  MUST  BE  VAC[A]TED  DUE  TO               
     INSUFFICIENCY OF THE EVIDENCE.                                  
IV.  WHETHER  [PETITIONER]  IS  ENTITLED  TO  RESENTENCING           
     BECAUSE HIS MINIMUM TERM WAS AN UNREASONABLE AND                
     DISPROPORTIONATE SENTENCE.                                      
V.   [PETITIONER]  WAS  DENIED  THE  RIGHT  TO  EFFECTIVE            
     ASSISTANCE OF COUNSEL FOR HIS DEFENSE AS GUARANTEED             
     BY THE UNITED STATES AND MICHIGAN CONSTITUTIONS . . . .         
(Pet., ECF No. 1, PageID.5, 7, 9-10, 12.)  Petitioner also has filed a motion to stay the petition and 
hold his exhausted claims in abeyance while he exhausts a new claim of ineffective assistance of 
counsel (ECF No. 8), on the ground that defense counsel failed to investigate to discover evidence 
from an eyewitness that would call into question the credibility of the prosecution’s principal 
witness.                                                                  
II.  AEDPA standard                                                       
     This action is governed by the Antiterrorism and Effective Death Penalty Act of 
1996,
Pub. L. 104-132, 110
Stat. 1214 (AEDPA).  The AEDPA “prevents 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).  This standard is “intentionally difficult to 
meet.”  Woods v. Donald,
575 U.S. 312, 316
(2015) (internal quotation omitted). 
                           4                                         
     The AEDPA limits the source of law to cases decided by the United States Supreme 
Court.
28 U.S.C. § 2254
(d).  This Court may consider only the holdings, and not the dicta, of the 
Supreme Court.  Williams v. Taylor,
529 U.S. 362, 412
(2000); Bailey v. Mitchell,
271 F.3d 652, 
655
(6th Cir. 2001).  In determining whether federal law is clearly established, the Court may not 
consider the decisions of lower federal courts.  Lopez v. Smith,
574 U.S. 1
, 4 (2014); Marshall v. 

Rodgers,
569 U.S. 58, 64
(2013); Parker v. Matthews,
567 U.S. 37, 48-49
(2012); Williams,
529 
U.S. at 381-82
; 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 v. Richter,
562 U.S. 86, 103
(2011)).  In other words, “[w]here 
the precise contours of the right remain unclear, state courts enjoy broad discretion in their 

                           5                                         
adjudication of a prisoner’s claims.”  White v. Woodall,
572 U.S. 415, 424
(2014) (internal 
quotations 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,
271 F.3d at 
656
.  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
(1981); Smith v. Jago,
888 F.2d 399
, 407 
n.4 (6th Cir. 1989).                                                      
III.  Ground I:  Confrontation Clause                                     
     In his first habeas ground, Petitioner argues that the admission of the preliminary 
examination testimony of Siad Brown violated state evidentiary law, the state constitution, and the 
Confrontation Clause of the Sixth Amendment to the United States Constitution. 
     To the extent Petitioner challenges the admission of Brown’s testimony under state 

evidentiary rules or the state constitution, his claim is not cognizable on habeas review.  “[A] 
federal court may issue the writ to a state prisoner ‘only on the ground that he is in custody in 
violation of the Constitution or laws or treaties of the United States.’”  Wilson v. Corcoran,
562 
U.S. 1, 5
(2010) (quoting
28 U.S.C. § 2254
(a)).  A habeas petition must “state facts that point to a 
‘real possibility of constitutional error.’”  Blackledge v. Allison,
431 U.S. 63
, 75 n.7 (1977) 
(quoting Advisory Committee Notes on Rule 4, Rules Governing Habeas Corpus Cases).   
     The federal courts have no power to intervene on the basis of a perceived error of 
state law.  Wilson,
562 U.S. at 5
; Bradshaw v. Richey,
546 U.S. 74, 76
(2005); Estelle v. McGuire, 
                           6
502 U.S. 62, 67-68
(1991); Pulley v. Harris,
465 U.S. 37, 41
(1984). The decision of the state 
courts on a state-law issue is binding on a federal court.  See Johnson v. United States,
559 U.S. 
133, 138
(2010) (“We are, however, bound by the Florida Supreme Court’s interpretation of state 
law, including its determination of the elements . . . .”); Wainwright v. Goode,
464 U.S. 78, 84
(1983).  The Sixth Circuit repeatedly has reiterated “‘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.’”  Stumpf v. Robinson,
722 F.3d 739
, 746 n.6 (6th Cir. 2013) (quoting Bradshaw,
546 U.S. at 76
).  See also Thomas v. Stephenson,
898 F.3d 693
, 700 n.1 (6th Cir. 2018) (same).  
As a consequence, this Court may only consider that part of Petitioner’s first habeas ground that 
challenges the admission of Brown’s testimony under the Confrontation Clause. 
     The Confrontation Clause of the Sixth Amendment gives the accused the right “to 
be confronted with the witnesses against him.”  U.S. Const. amend. VI; Pointer v. Texas,
380 U.S. 
400, 403-05
(1965) (applying the guarantee to the states through the Fourteenth Amendment).  
“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against 

a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding 
before the trier of fact.”  Maryland v. Craig,
497 U.S. 836, 845
(1990).  The Confrontation Clause 
therefore prohibits the admission of an out-of-court testimonial statement at a criminal trial unless 
the  witness  is  unavailable  to  testify  and  the  defendant  had  a  prior  opportunity  for  cross-
examination.  Crawford v. Washington,
541 U.S. 36, 59
(2004).             
     The Michigan Court of Appeals addressed the issue, as follows:  
     The  admission  of  preliminary  examination  testimony  at  trial  does  not 
violate a defendant’s right of confrontation if (1) the witness is unavailable to testify 
at trial, (2) the prosecution can demonstrate due diligence in trying to produce the 
absent witness, and (3) the testimony meets satisfactory indicia of reliability.  
                           7                                         
People v Bean,
457 Mich 677, 682-683
;
580 NW2d 390
(1998).  In accordance with 
MRE 804(a)(5), the test for due diligence “is one of reasonableness and depends on 
the facts and circumstances of each case, i.e., whether diligent good-faith efforts 
were made to procure the testimony, not whether more stringent efforts would have 
produced it.”
Id. at 684
.                                           
     Here,  the  record  demonstrates  that  Brown  never  gave  the  police  the 
impression that he would not show up for trial, and instead he was cooperative at 
the preliminary examination.  Additionally, the process server for the Grand Rapids 
Police Department attempted to serve Brown at his last known address multiple 
times but was unsuccessful.  An officer then contacted Brown’s ex-girlfriend, who 
informed him that the two had been evicted from their residence and had ended 
their relationship.  The ex-girlfriend told the officer that she did not know where 
Brown was located; however, at trial, she admitted that she spoke with Brown daily 
and that he was in Atlanta, Georgia.  When asked if she told the police about Brown 
living in Atlanta, she stated she did not.  On appeal, Bogard argues that Brown was 
easily  located  through  the  ex-girlfriend,  yet  the  record  does  not  support  this 
statement  because  the  ex-girlfriend  failed  to  disclose  this  information  to  law 
enforcement before the trial.  Moreover, although there was evidence that Brown 
had been on probation, he had been released and no other forwarding address was 
provided.  Lastly, the phone number for Brown did not work, and a search of LEIN 
turned up nothing on him.  Thus, based on the record before the court, we conclude 
that the trial court did not err by finding the prosecution exercised due diligence to 
produce Brown at trial.  Although Bogard argues that the prosecution should have 
made additional efforts, due diligence requires the prosecution to “do everything 
reasonable, not everything possible, to obtain the presence of the witness.”  People 
v Eccles,
260 Mich App 379, 391
;
677 NW2d 76
(2004).  Moreover, because Brown 
was unavailable under MRE 804(a)(5), his preliminary examination testimony was 
admissible under MRE 804(b)(1) because Bogard had a prior opportunity and 
similar motive to develop the witness’s testimony on cross-examination.  See Bean,
457 Mich at 682-684
.                                                 
(Mich. Ct. App. Op., ECF No. 1, PageID.20-21.)  While the Michigan Court of Appeals did not 
cite to United States Supreme Court precedent or apply a standard that perfectly parallels the 
Crawford standard, the court of appeals did consider the factors identified by the Supreme Court 
in considering such challenges.                                           
     Petitioner does not dispute any of the facts recited by the court of appeals. As 
discussed previously, this Court presumes the correctness of state-court factual findings, and 
Petitioner bears the burden of overcoming that presumption by clear and convincing evidence.  See 
                           8
28 U.S.C. § 2254
(e)(1); Sumner,
449 U.S. at 546
; Smith,
888 F.2d at 407
.  Here, Petitioner simply 
argues that the court of appeals wrongly concluded from those facts that the prosecution had 
demonstrated reasonable diligence in seeking Brown’s appearance at trial.   
     In the context of review under the AEDPA, the Supreme Court has cautioned 
against disturbing a state court’s reasonable conclusion regarding unavailability: 

[W]hen a witness disappears before trial, it is always possible to think of additional 
steps that the prosecution might have taken to secure the witness’ presence, see 
[Ohio v. Roberts,
448 U.S. 56, 75
(1980)], but the Sixth Amendment does not 
require  the  prosecution  to  exhaust  every  avenue  of  inquiry,  no  matter  how 
unpromising.  And, more to the point, the deferential standard of review set out in
28 U.S.C. § 2254
(d) does not permit a federal court to overturn a state court’s 
decision  on  the  question  of  unavailability  merely  because  the  federal  court 
identifies additional steps that might have) been taken.  Under AEDPA, if the state-
court decision was reasonable, it cannot be disturbed.               
Hardy v. Cross,
565 U.S. 65, 71-72
(2011).                                
     Taking as true the facts recited in the court of appeals decision, the court of appeals 
reasonably determined that Brown was unavailable, and that  the prosecution had exercised 
reasonable diligence in attempting to locate him for trial.  This Court accepts as true that the 
prosecution had no reason to believe that Brown would not appear at trial until it attempted to 
serve a trial subpoena, because Brown had until that time been fully cooperative in the prosecution.  
The Court also accepts as true that the police attempted multiple times to serve Brown at his last 
known address; that they contacted Brown’s ex-girlfriend, but she told them she had broken up 
with Brown and did not know where he was; that they checked with Brown’s probation officer in 
an attempt to find a forwarding address; and that they checked the LIEN system for any record of 
Brown’s location.  Under the circumstances found by the state court, it is difficult to identify what 
else the officers could have done.  Neither the prosecutor nor police had knowledge that Brown’s 
ex-girlfriend had lied to them about knowing where Brown was and about her daily telephone 
                           9                                         
contact with Brown until she testified at trial.  At that point, Brown was located in Georgia, outside 
the jurisdiction of the trial court, and the prosecutor had no time to obtain Brown’s presence 
through any legal means.  On these facts, the state court reasonably determined that the prosecution 
had exercised due diligence in obtaining Brown’s presence and that Brown was unavailable within 
the meaning of the Confrontation Clause.                                  

     Petitioner does not now and did not in the state courts contest that he had an 
opportunity to question Brown at the preliminary examination.  Nor does Petitioner contend that 
his opportunity for cross-examination was insufficient.  However, even had he intended to raise 
such a claim, Petitioner would not be entitled to habeas relief on that issue under the current state 
of Supreme Court precedent.                                               
     The Sixth Circuit has noted that there exists “some question whether a preliminary 
hearing necessarily offers an adequate prior opportunity for cross-examination for Confrontation 
Clause purposes.”  Al-Timimi v. Jackson,
379 F. App’x 435, 437-38
(6th Cir. 2010) (citing, inter 
alia, Vasquez v. Jones,
496 F.3d 564, 577
(6th Cir. 2007) (doubting whether “the opportunity to 

question a witness at a preliminary examination hearing satisfies the pre-Crawford understanding 
of the Confrontation Clause’s guarantee of an opportunity for effective cross-examination”) 
(internal quotation marks omitted)).  But the Supreme Court has never held that a defendant is 
denied his rights under the Confrontation Clause when a witness is unavailable at trial and the 
court admits the witness’s preliminary examination testimony.  Id. at 438 (recognizing that some 
language to the contrary in Barber v. Page,
390 U.S. 719, 725
(1968), was merely dicta and in no 
event held that all opportunities for cross-examination at a preliminary exam were insufficient to 
meet the requirements of the Confrontation Clause).  As a result, in the context of a federal court 

                          10                                         
sitting on habeas review, the Sixth Circuit has concluded that a state court’s determination that 
testimony from the preliminary examination was properly admitted was not an unreasonable 
application of clearly established Supreme Court precedent.  Id., at 438-40; see also Williams v. 
Bauman,
759 F.3d 630, 636
(6th Cir. 2014) (citing Al-Timimi with approval and upholding on 
habeas review the admission of testimony from the petitioner’s own preliminary examination). 

     For these reasons, Petitioner fails to demonstrate that the state-court’s decision 
either rested on an unreasonable determination of the facts or was contrary to, or an unreasonable 
application of, clearly established Supreme Court precedent.  He therefore is not entitled to relief 
on his first habeas ground.                                               
IV.  Ground II:  Prosecutorial Misconduct                                 
     As he did in the state appellate courts, Petitioner next argues that the prosecutor 
committed misconduct by shifting the burden of proof during closing argument, in violation of the 
Fourteenth Amendment.                                                     
     The Michigan Court of Appeals considered and rejected Petitioner’s constitutional 
claim:                                                                    

     Bogard next argues that the prosecutor improperly shifted the burden of 
proof during her closing argument.  To review a claim of prosecutorial misconduct, 
this Court must examine the challenged remarks in context to determine whether 
the defendant received a fair and impartial trial.  People v Aldrich,
246 Mich App 
101, 110
;
631 NW2d 67
(2001).  However, because Bogard failed to preserve this 
issue with a timely objection, our review is for plain error affecting Bogard’s 
substantial rights.  See
id.
Additionally, “[n]o error requiring reversal will be found 
if the prejudicial effect of the prosecutor’s comments could have been cured by a 
timely instruction.”  People v Watson,
245 Mich App 572, 586
;
629 NW2d 411
(2001) (quotation marks and citation omitted). . . .                 
     Bogard contends that the following argument by the prosecutor improperly 
shifted the burden of proof:                                         
                          11                                         
   So let’s go to count one.  The possession with intent to deliver cocaine.  
   We know [an officer] finds, in Exhibit 13, there’s a photograph of it.  The 
   handgun and the baggie of rocks of the crack cocaine.  And we know that 
   he finds it in the basement.  And—well, how do we know the defendant 
   put those there?  For one thing, zero evidence that anybody else put it 
   there. Zero evidence that [Brown] used drugs, possessed guns, went down 
   there at any point that day.  Zero evidence, in fact an outright denial from 
   [the ex-girlfriend], that she’s involved in any kind of drug use or guns.  An 
   outright denial even though she’s not here to testify, but [the ex-girlfriend] 
   says, no [her friend] wasn’t involved in any of that stuff either.  
We disagree.  “Prosecutors are typically afforded great latitude regarding their 
arguments and conduct at trial.” People v Unger,
278 Mich App 210, 236
;
749 
NW2d  272
(2008).    “They  are  generally  free  to  argue  the  evidence  and  all 
reasonable inferences from the evidence as it relates to their theory of the case.”
Id.
The challenged comments reflect the prosecutor’s recitation of the circumstantial 
evidence linking Bogard to the firearm and drugs located in the basement.  And, 
although the prosecutor commented on the lack of evidence linking others to the 
crime, that was not improper given that the defense theory was that the items found 
by the police belonged to someone other than Bogard.  Consequently, we conclude 
that there was no prosecutorial misconduct.                          
(Mich. Ct. App. Op., ECF No. 1, PageID.21-22.)                            
     In order 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 must consider the extent to which the claimed misconduct tended 
to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether 
the claimed misconduct was deliberate or accidental.  See United States v. Young,
470 U.S. 1
, 11-
12 (1985).  The court also must consider the strength of the overall proof establishing guilt, whether 
the conduct was objected to by counsel and whether a curative instruction was given by the court.  
                          12                                         
See
id. at 12-13
; Darden,
477 U.S. at 181-82
; Donnelly,
416 U.S. at 646-47
; Berger v. United 
States,
295 U.S. 78, 84-85
(1935).                                        
     “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
(1974)).  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 v. Matthews,
567 U.S. 37, 47
(2012) (quoting 
Harrington v. Richter,
562 U.S. 86, 103
(2011)).                          
     In the instant case, although the court of appeals did not cite United States Supreme 

Court precedent, the analysis it applied was fully consistent with the Supreme Court standard.  The 
court of appeals looked to the whole of the circumstances in determining whether the prosecutor’s 
conduct deprived Petitioner of a fair trial.  The court found that Petitioner had defended the case 
by arguing and testifying that the firearm and drugs were located in the basement and belonged to 
someone else.  This factual statement about the substance of Petitioner’s defense is both consistent 
with the facts recited in Petitioner’s brief on appeal to the Michigan Court of Appeals (Def.-
Appellant’s Br. on Appeal, ECF No. 1, PageID.58-59) and entitled to a presumption of correctness.  
See
28 U.S.C. § 2254
(e)(1); Sumner,
449 U.S. at 546
; Smith,
888 F.2d at 407
.  The court of appeals 

                          13                                         
therefore properly applied the well-established proposition that a prosecutor “has wide latitude 
during  closing  argument  to  respond  to  the  defense’s  strategies,  evidence  and  arguments.”  
Wogenstahl v. Mitchell,
668 F.3d 307, 329
(6th Cir. 2012) (quoting Bedford v. Collins,
567 F.3d 
225, 233
(6th Cir. 2009) (internal quotation marks omitted)); see also Clarke v. Warren,
556 F. 
App’x 396, 408
(6th Cir. 2014).  A prosecutor is not limited to simply recounting the evidence 

during closing argument but may argue reasonable inferences from the evidence.  Byrd v. Collins,
209 F.3d 486, 535
(6th Cir. 2000); see also Young,
470 U.S. at 8
n.5 (acknowledging as a useful 
guideline the American Bar Association Standard: “The prosecutor may argue all reasonable 
inferences from the evidence.”).                                          
     Moreover, the Sixth Circuit has rejected claims of prosecutorial misconduct based 
on an alleged shifting of the burden of proof arising out of a prosecutor’s suggestion that the 
evidence does not support the defendant’s theory.  See United States v. Henry,
545 F.3d 367, 382
(6th Cir. 2008) (addressing the following prosecutor’s statement:  “Ladies and gentlemen, I guess 
that sort of gets back to the whole point that I said in opening statement . . . listen to the testimony 

of the witnesses, consider how it came in, and consider if there is any way that the defense’s theory 
could hold any water.”); see also United States v. Johnson,
583 F. App’x 503, 508
(6th Cir. 2014) 
(finding that, where the defendant argued the prosecutor had failed to call a witness that would 
have been favorable to the defense, the prosecutor did not shift the burden of proof by commenting 
that the defendant also had not called the witness); Perkins v. McKee,
411 F. App’x 822
, (6th Cir. 
2011) (finding no shifting of the burden of proof when prosecutor commented that the petitioner, 
while claiming alibi, had not produced the witness who could corroborate that alibi); Traylor v. 
Price,
239 F. App’x 235
, (6th Cir. 2007) (holding that, where a defendant testifies at trial and 

                          14                                         
advances an alternative theory of the case that would exonerate him, prosecutorial comments on 
the validity of the theory do not shift the burden of proof).             
     Under the undisputed facts and the totality of circumstances, Petitioner fails to show 
that the prosecutor’s comments amounted to prosecutorial misconduct, much less to show that  the 
state court’s resolution 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
(quoting Harrington,
562 U.S. at 103
). 
V.   Ground III:  Sufficiency of the Evidence                             
     Petitioner argues that the prosecution introduced insufficient evidence that he 
committed the offense of possession with intent to deliver less than 50 grams of cocaine.  In making 
his argument in the Michigan Court of Appeals, appellate counsel conceded that the evidence was 
sufficient  to  establish  the  elements  of  the  remaining  offenses:    felonious  assault,  felon  in 
possession, and felony firearm.  (See Def.-Appellant’s Br. on Appeal, ECF No. 1, PageID.67.) 
     A § 2254 challenge to the sufficiency of the evidence is governed by the standard 
set forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 319
(1979), which is 

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational 
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  This 
standard of review recognizes the trier of fact’s responsibility to resolve reasonable conflicts in 
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate 
facts.
Id.
Issues of credibility may not be reviewed by the habeas court under this standard.  See 
Herrera v. Collins,
506 U.S. 390, 401-02
(1993).  Rather, the habeas court is required to examine 
the evidence supporting the conviction, in the light most favorable to the prosecution, with specific 

                          15                                         
reference to the elements of the crime as established by state law.  Jackson,
443 U.S. at 324
n.16; 
Allen v. Redman,
858 F.2d 1194, 1196-97
(6th Cir. 1988).                  
     The Jackson v. Virginia standard “gives full play to the responsibility of the trier of 
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 
inferences from basic facts to ultimate facts.”  Jackson,
443 U.S. at 319
.  Moreover, because both 

the Jackson standard and AEDPA apply to Petitioner’s claims, “the law commands deference at 
two  levels  in  this  case:    First,  deference  should  be  given  to  the  trier-of-fact’s  verdict,  as 
contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals’ 
consideration of the trier-of-fact’s verdict, as dictated by AEDPA.”  Tucker v. Palmer,
541 F.3d 
652, 656
(6th Cir. 2008).  This standard erects “‘a nearly insurmountable hurdle’” for petitioners 
who seek habeas relief on sufficiency-of-the-evidence grounds.  Davis v. Lafler,
658 F.3d 525
, 
534 (6th Cir. 2008) (quoting United States v. Oros,
578 F.3d 703, 710
(7th Cir. 2009)). 
     The Michigan Court of Appeals readily disposed of Petitioner’s third ground for 
relief:                                                                   

     Bogard next argues that there was insufficient evidence to support his 
conviction for possession with intent to deliver.  Challenges to the sufficiency of 
the evidence are reviewed de novo, with the evidence viewed in the light most 
favorable to the prosecution.  People v Bennett,
290 Mich App 465, 471
;
802 NW2d 
627
(2010). . . .                                                    
     The elements of possession with intent to deliver cocaine in an amount less 
than 50 grams are as follows:  “(1) that the recovered substance is cocaine, (2) that 
the cocaine is in a mixture weighing less than fifty grams, (3) that defendant was 
not authorized to possess the substance, and (4) that defendant knowingly possessed 
the cocaine with intent to deliver.”  People v Wolfe,
440 Mich 508, 516-517
;
489 
NW2d 748
(1992), amended
441 Mich 1201
(1992).  Bogard only challenges the 
sufficiency of the evidence that he possessed the cocaine.           
     Here, an officer found a handgun and a 1.66 grams of cocaine in Brown’s 
basement.  The cocaine was on top of the gun.  Bogard was the only individual 
identified as possessing a handgun, but when the police arrived he did not have a 
                          16                                         
gun on him.  Instead, he was moving toward the police from the direction of the 
basement.  That evidence allows for a reasonable inference that Bogard placed the 
gun in the basement before the police arrived.  Because the cocaine was on top of 
the gun, it also allows for an inference that he was connected to the cocaine.  
Additionally, there was other testimony and evidence tying Bogard to the drugs.  
Namely, he had a large sum of cash on him, which can be indicative of the sale of 
illegal drugs, and he had drug paraphernalia in his vehicle.1  We note that, although 
Bogard claimed he was paying bills with the money, it is important to note that 
“[t]his Court will not interfere with the trier of fact’s role of determining the weight 
of the evidence or the credibility of witnesses.”  People v Williams,
268 Mich App 
416, 419
;
707 NW2d 624
(2005).  Accordingly, viewed in the light most favorable 
to the prosecution, there was sufficient evidence to establish that Bogard had 
possession of the cocaine in the basement.                           
1 Two police witnesses explained that drugs are inserted into the corner of sandwich bags and then 
are twisted off when sold.  In addition, a digital scale can be used to weigh cocaine before it is sold. 
(Mich. Ct. App. Op., ECF No. 1, PageID.22.)  Although the court of appeals did not recite the full 
Jackson standard, it properly considered the evidence in the light most favorable to the prosecution 
and measured that evidence against the elements of the offense.  Thus, the court’s analysis was 
fully consistent with the federal constitutional standard.  Moreover, the court of appeals drew its 
standard of review from People v Wolfe,
489 NW2d 748
(1992), which expressly articulates the 
Jackson standard.  Id. at 751.                                            
     As discussed above in part III, it is the prerogative of the state to define the elements 
of the crime and that definition binds the federal courts.  See Johnson,
559 U.S. at 138
; Jackson,
443 U.S. at 324
n.16 (“The respondents have suggested that this constitutional standard will invite 
intrusions upon the power of the States to define criminal offenses.  Quite to the contrary, the 
standard must be applied with explicit reference to the substantive elements of the criminal offense 
as defined by state law.”).  As a consequence, the state court’s recitation of the elements of the 
offense is binding on this Court.                                         
                          17                                         
     On review, the state court’s determination of the sufficiency question was patently 
reasonable.  As the court observed, police witnesses testified that Petitioner appeared to be coming 
from the basement, where 1.66 grams of cocaine were found.  The drugs were found with the 
gun—indeed, on top of the gun.  Petitioner conceded in his appeal brief that the evidence was 
sufficient for the jury to find that he possessed the gun for purposes of the other offenses.  It is 

difficult to imagine how the evidence could have been sufficient to support claims that Petitioner 
possessed the gun while not being sufficient to support the inference that it was Petitioner who 
knowingly possessed the drugs, given their co-location and the timing of the events in this case.  
Moreover, the prosecution introduced evidence that Petitioner had drug paraphernalia in his 
vehicle and that he had $1,600 in cash in his pockets.  From this evidence a reasonable jury could 
infer that Petitioner was guilty of all elements of the offense.          
     Petitioner therefore fails to demonstrate that the evidence was insufficient to 
support his conviction for possession with intent to distribute.  And he utterly fails to overcome 
the double deference owed to the state-court determination of the issue.  

VI.  Ground IV:  Unreasonable and Disproportionate Sentence               
     Petitioner argues that his minimum term of sentence for the felon-in-possession 
conviction was unreasonable.  Petitioner argued in the state courts that his sentence of 14 to 58 
months was disproportionate to his offense under People v. Milbourn,
461 N.W.2d. 1
(Mich. 
1990), and that the trial court unreasonably departed from the discretionary sentencing guidelines 
under People v. Lockridge,
870 N.W. 2d 502
(Mich. 2015), and People v. Steanhouse,
902 N.W.2d 
327
(Mich. 2017).  However, in his brief before the Michigan appellate courts, Petitioner also 
made  a  conclusory  argument  that  the  sentence  violated  the  Fourth,  Eighth  and  Fourteenth 

                          18                                         
Amendments.  In support of his habeas petition, Petitioner relies on the briefs filed in the state 
courts.                                                                   
     To the extent that he intends to suggest that his sentence was disproportionate under 
Milbourn or unreasonable under Steanhouse, Petitioner fails to raise a cognizable habeas claim.  
In Milbourn, the Michigan Supreme Court held that a sentencing court must exercise its discretion 

within the bounds of Michigan’s legislatively prescribed sentence range and pursuant to the intent 
of Michigan’s legislative scheme of dispensing punishment according to the nature of the offense 
and the background of the offender.  Milbourn,
461 N.W.2d at 9-10
; People v. Babcock,
666 
N.W.2d 231, 236
(Mich. 2003).  Nearly three decades later, in Steanhouse, Michigan Supreme 
Court held that a sentencing court’s departure from the sentencing guidelines is unreasonable if 
the court abused its discretion.  Steanhouse, 902 N.W.2d at 335.  The proper test for determining 
whether the sentencing court abused its discretion, it held, is found in Milbourn’s proportionality 
analysis.  Id.  In other words, a sentence departing from the guidelines is unreasonable if it is 
disproportionate.  Clarifying its holding, the Steanhouse court expressly rejected adopting factors 

used by the federal courts.  Id.  It is plain that Milbourn, and thus Steanhouse, were decided under 
state, not federal, principles.  See Lunsford v. Hofbauer, No. 94-2128,
1995 WL 236677, at *2
(6th 
Cir. Apr. 21, 1995); Atkins v. Overton,
843 F. Supp. 258, 260
(E.D. Mich. 1994).  As previously 
discussed, a federal court may grant habeas relief solely on the basis of federal law and has no 
power to intervene on the basis of a perceived error of state law.  See Wilson,
562 U.S. at 5
; 
Bradshaw,
546 U.S. at 76
; Pulley,
465 U.S. at 41
.  Thus, Petitioner’s claim based on Milbourn and 
Steanhouse is not cognizable in a habeas corpus action.                   


                          19                                         
     With  respect  to  Petitioner’s  Eighth  Amendment  claim,  the  United  States 
Constitution does not require strict proportionality between a crime and its punishment.  Harmelin 
v. Michigan,
501 U.S. 957, 965
(1991); United States v. Marks,
209 F.3d 577, 583
(6th Cir. 2000). 
“Consequently,  only  an  extreme  disparity  between  crime  and  sentence  offends  the  Eighth 
Amendment.”  Marks,
209 F.3d at 583
; see also Lockyer v. Andrade,
538 U.S. 63, 77
(2003) (gross 

disproportionality principle applies only in the extraordinary case); Ewing v. California,
538 U.S. 
11, 36
(2003) (principle applies only in “‘the rare case in which a threshold comparison of the 
crime committed and the sentence imposed leads to an inference of gross disproportionality’”) 
(quoting Rummel v. Estelle,
445 U.S. 263, 285
(1980)).  A sentence that falls within the maximum 
penalty authorized by statute “generally does not constitute ‘cruel and unusual punishment.’”  
Austin v. Jackson,
213 F.3d 298, 302
(6th Cir. 2000) (quoting United States v. Organek,
65 F.3d 
60, 62
(6th Cir. 1995)).  Ordinarily, “[f]ederal courts will not engage in a proportionality analysis 
except in cases where the penalty imposed is death or life in prison without possibility of parole.”  
United States v. Thomas,
49 F.3d 253, 261
(6th Cir. 1995).  Petitioner was not sentenced to death 

or life in prison without the possibility of parole, and his sentence falls within the maximum 
penalty under state law.  Petitioner’s sentence therefore does not present the extraordinary case 
that runs afoul of the Eighth Amendment’s ban on cruel and unusual punishment. 
     Petitioner also fails to demonstrate a due process violation.  A sentence may violate 
due process if it is based upon material “misinformation of constitutional magnitude.”  Roberts v. 
United States,
445 U.S. 552, 556
(1980); see also United States v. Tucker,
404 U.S. 443, 447
(1972); Townsend v. Burke,
334 U.S. 736, 741
(1948).  To prevail on such a claim, the petitioner 
must show (1) that the information before the sentencing court was materially false, and (2) that 

                          20                                         
the court relied on the false information in imposing the sentence.  Tucker,
404 U.S. at 447
; United 
States v. Stevens,
851 F.2d 140, 143
(6th Cir. 1988); United States v. Polselli,
747 F.2d 356, 358
(6th Cir. 1984).  A sentencing court demonstrates actual reliance on misinformation when the court 
gives “explicit attention” to it, “found[s]” its sentence “at least in part” on it, or gives “specific 
consideration” to the information before imposing sentence.  Tucker,
404 U.S. at 444, 447
.  

     Petitioner does not identify any facts found by the court at sentencing that were 
either materially false or based on false information.  He therefore fails to demonstrate that his 
sentence violated due process.  Tucker,
404 U.S. at 447
; United States v. Lanning,
633 F.3d 469, 
477
(6th Cir. 2011) (rejecting due process claim where the petitioner failed to point to specific 
inaccurate information relied upon by the court).                         
     For these reasons, the state-court’s rejection of Petitioner’s sentencing claim was 
not based on an unreasonable determination of the facts and was neither contrary to nor an 
unreasonable application of established Supreme Court precedent.
28 U.S.C. § 2254
(d). 
VII.  Ground V:  Ineffective Assistance of Trial Counsel                  
     In his fifth ground for habeas relief, Petitioner challenges the effectiveness of his 

trial attorney in a variety of ways.  With respect to Petitioner’s previously exhausted ineffective-
assistance  claims,  Petitioner  incorporates  by  reference  the  arguments  he  presented  in  his 
application for leave to appeal to the Michigan Supreme Court.  There, Petitioner argued, as 
follows:                                                                  
     The Court of Appeals errored in its decision denying Defendant-Appellant’s 
ineffective assistance of counsel claim.  The issue raises a legal principle which is 
very  important  to  Michigan  law.    Defendant-Appellant  addressed  in  his 
supplemental Standard 4 brief to the Court of Appeals an array of deficient 
performances on behalf of his trial counsel.  In Defendant-Appellant’s Discussion, 
he referred to[:]  failure to prepare, failure to preserve a defense theory by not filing 
                          21                                         
the required notice, failure to seek suppression of illegally seized evidence, failure 
to file pre-trial motions, and failure to file for a new trial.      
     Moreover, because Defendant-Appellant inartfully detailed with accuracy 
these claims within the issue, the Court of Appeals concludes it will not consider 
the claim.  Clearly, Defendant-Appellant informed the Court of Appeals Panel in 
his brief that the core of his claims would not be found on the record.  According 
to the competent courts of the State of Michigan, when a lay person in the law 
attempts to address a court the issue raised must be liberally construed.  As such, 
the Court of Appeals Panel in its inherent powers should have remanded this issue 
back to the trial court to have a testimonial record developed so the question 
concerning trial counsel’s effectiveness can be properly evaluated.  
     Defendant-Appellant cited the relevant case law supporting various claims 
within the issue raised.  See, People v. Hoag,
460 Mich. 1
(1999); People v. 
Johnson,
451  Mich.  115
(1996);  People  v.  Ginther,
390  Mich.  436
(1973); 
St[r]ickland v. Washington,
466 U.S. 668
(1984); People v. Pickens,
446 Mich. 298
(1994); People v. Garcia[,]
398 Mich. 250
(1976); and People v. Degarffenreid,
19 
Mich. App. 702
(1969).                                               
     This Court should be persuaded to grant leave, send this issue back to the 
trial court for a hearing to develop[] a record as to the exact motions trial counsel 
refused  to  investigate  as  well  as  the  relevant  defenses  available  and  the 
investigation trial counsel took to conclude motions and further available defenses 
were not relevant to defendant-Appellant’s case.                     
(Appl. for Lv. to Appeal to Mich. Ct., ECF No. 1, PageID.45-46.)          
     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 defendant 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 defendant bears the burden of overcoming the presumption that the 
challenged action might be considered sound trial strategy.
Id.
(citing Michel v. Louisiana, 350
22                                         
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 

defendant 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, 13
(2013); Cullen v. Pinholster,
563 U.S. 170
, 190 (2011); Premo v. Moore,
562 U.S. 115
, 122 (2011).  In those circumstances, 
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
).                                                                     
     The Michigan Court of Appeals rejected Petitioner’s claim of ineffective assistance 
of counsel:                                                               
     Finally, in a Standard 4 brief filed pursuant to Michigan Supreme Court 
Administrative  Order  2004-6,  Bogard  argues  that  his  trial  lawyer  provided 
ineffective assistance.  “When no Ginther2 hearing has been conducted, our review 
of the defendant’s claim of ineffective assistance of counsel is limited to mistakes 
that are apparent on the record.”  People v Mack,
265 Mich App 122, 125
;
695 
NW2d 342
(2005). . . .                                               
     To demonstrate ineffective assistance, a defendant must show that his 
lawyer’s performance was deficient and that it prejudiced the defense.  People v 
                          23                                         
Carbin,
463 Mich 590, 600
;
623 NW2d 884
(2001).  A defendant’s lawyer is 
presumed effective and the defendant bears the heavy burden of proving otherwise.  
People v Solmonson,
261 Mich App 657, 663
;
683 NW2d 761
(2004).      
Bogard first argues that his lawyer failed to prepare appropriately for his 
trial.  More specifically, he contends that his lawyer failed to conduct a background 
investigation into the prosecution’s case-in-chief.  However, there is no evidence 
on  the  record  supporting  a  finding  that Bogard’s  lawyer  failed  to  conduct  a 
background investigation or was otherwise unprepared for trial.  As a result, Bogard 
has failed to meet his burden of showing that his lawyer’s performance was 
deficient.  Moreover, even assuming arguendo that Bogard’s lawyer’s performance 
was deficient, given that there is no indication of what Bogard’s lawyer would have 
discovered if he had conducted a more thorough background investigation, we 
cannot conclude that the alleged error would have affected the outcome of the trial. 
Next, Bogard argues that he was prejudiced by his lawyer’s failure to 
challenge the legality of his arrest by seeking suppression of illegally seized 
evidence.  Bogard states that his lawyer failed to move for suppression of the 
handgun and cocaine, as well as the circumstantial evidence of sandwich baggies 
with the corner pieces torn out and a digital scale.  Failing to file a suppression 
motion is not per se ineffective assistance; a defendant must still demonstrate that 
his lawyer’s performance was objectively unreasonable and that “but for” that 
deficient performance, the outcome of the trial would have been different.  People 
v Trakhtenberg,
493 Mich 38, 51
;
826 NW2d 136
(2012).  Bogard fails to provide 
any support for his contention that the search and seizure of the evidence was 
illegal.  He likewise fails to provide any support for his contention that his arrest 
was illegal.  “An appellant may not merely announce his position and leave it to 
this Court to discover and rationalize the basis for his claims, nor may he give only 
cursory treatment [of an issue] with little or no citation of supporting authority.”  
People  v  Kelly,
231  Mich  App  627,  640-641
;
588  NW2d  480
(1998).  
Consequently, we decline to address his contention that the arrest or the search were 
illegal.  Further, without first establishing that the arrest and search were illegal, 
Bogard cannot prove that his lawyer was deficient in failing to move to suppress 
evidence or by failing to establish that his arrest was illegal.  See Carbin,
463 Mich 
at 600
(stating that to succeed on a claim of ineffective assistance, a defendant must 
establish the factual predicate for his or her claim).               
Next, to the extent that Bogard argues that his lawyer provided ineffective 
assistance by subjecting him to the court’s jurisdiction when she “appeared” before 
the trial court, we find his argument wholly without merit.  The trial court had 
jurisdiction over Bogard.  See People v Lown,
488 Mich 242, 268
;
794 NW2d 9
(2011)  (“Michigan  circuit  courts  are  courts  of  general  jurisdiction  and 
unquestionably have jurisdiction over felony cases.”).               
                     24                                         
     Finally, Bogard argues that the cumulative effect of his trial lawyer’s errors 
resulted in an unconstitutional deprivation of his right to the effective assistance of 
a lawyer.  There cannot be cumulative error, however, in the absence of any errors. 
Stated differently, we cannot reverse on the basis of cumulative error when no 
errors  have  been  presented.    Thus,  we  reject  Bogard’s  claim  of  ineffective 
assistance.                                                          
2 People v Ginther,
390 Mich 436
;
212 NW2d 922
(1973).               
(Mich. Ct. App. Op., ECF No. 1, PageID.24-25.)  Although the court of appeals did not directly 
cite Strickland, the state supreme court cases on which the appellate court relied themselves 
applied  Strickland.    See  People  v.  Carbin,
623  N.W.2d  884,  889
(Mich.  2001);  People  v. 
Solmonson,
683 N.W.2d 761, 765
(Mich. Ct. App. 2004).                     
     The court of appeals noted that Petitioner had failed to detail the bases for his search 
and seizure claims.  The court therefore declined to address those claims on the merits.  When a 
state-law procedural default prevents further state consideration of a federal issue, the federal 
courts ordinarily are precluded from considering that issue on habeas corpus review.  See Ylst v. 
Nunnemaker,
501 U.S. 797, 801
(1991); Engle v. Isaac,
456 U.S. 107
(1982).  To determine 
whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider 
whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state 
court enforced the rule so as to bar the claim; and (3) the state procedural default is an “independent 
and adequate” state ground properly foreclosing federal habeas review of the federal constitutional 
claim.  See Hicks v. Straub,
377 F.3d 538, 551
(6th Cir. 2004); accord Lancaster,
324 F.3d at 436
-
37; Greer v. Mitchell,
264 F.3d 663, 672
(6th Cir. 2001); Buell v. Mitchell,
274 F.3d 337, 348
(6th 
Cir. 2001).  In determining whether a state procedural rule was applied to bar a claim, a reviewing 
court looks to the last reasoned state-court decision disposing of the claim.  See Ylst,
501 U.S. at 
803
; Guilmette v. Howes,
624 F.3d 286, 291
(6th Cir. 2010).               
                          25                                         
     The Michigan appellate courts long have held that, unless an appellant provides 
facts, citations, and arguments in support of the claim, it will be deemed abandoned.  People v. 
Coy,
669 N.W.2d 831, 843
(Mich. Ct. App. 2003).  The rule requiring development of appellate 
issues was well-established at the time of Petitioner’s trial.  See, e.g., Mich. Ct. R. 7.212(C)(6)-(7) 
(setting forth requirements for appellate briefs, including the requirements of sufficient factual 

descriptions to understand the controversy and question involved and for arguments including 
supporting authorities); Coy,
669 N.W.2d at 843
; People v. Anderson,
531 N.W.2d 780, 786
(Mich. 
Ct. App. 1995); Froling v. Carpenter,
512 N.W.2d 6, 9
(Mich. Ct. App. 1993).  Petitioner’s failure 
to comply with the state’s independent and adequate state procedural rule, i.e., developing his issue 
on appeal, caused him to default his claims in state court.  See Wainwright v. Sykes,
433 U.S. 72, 
86-88
(1977); Taylor v. McKee,
649 F.3d 446, 450
(6th Cir. 2011); Awkal v. Mitchell,
613 F.3d 
629, 648
(6th Cir. 2010).                                                 
     Where, as here, a habeas petitioner has procedurally defaulted his federal claim in 
state court, the petitioner must demonstrate either (1) cause for his failure to comply with the state 

procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, 
or (2) that a lack of federal habeas review of the claim will result in a fundamental miscarriage of 
justice.  See House v. Bell,
547 U.S. 518, 536
(2006); Coleman v. Thompson,
501 U.S. 722, 750
(1991); Murray v. Carrier,
477 U.S. 478, 495
(1986); Hicks,
377 F.3d at 551-52
.  The miscarriage-
of-justice exception only can be met in an “extraordinary” case where a prisoner asserts a claim of 
actual innocence based upon new reliable evidence.  House,
547 U.S. at 536
.  A habeas petitioner 
asserting a claim of actual innocence must establish that, in light of new evidence, it is more likely 


                          26                                         
than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.
Id.
(citing Schlup v. Delo,
513 U.S. 298, 327
(1995)).                    
     Petitioner fails to raise any reason for his failure to comply with the procedural rule.  
Although ineffective assistance of appellate counsel may serve as cause to excuse a procedural 
default, such a claim itself must have been exhausted in the state courts.  Edwards v. Carpenter,
529 U.S. 446, 453
(2000); Buell,
274 F.3d at 349
; Coleman v. Mitchell,
244 F.3d 533, 538
(6th 
Cir. 2001).  Petitioner has never presented a claim of ineffective assistance of appellate counsel to 
any Michigan court.  He therefore fails to show cause excusing his default.  Where a petitioner 
fails to show cause, the court need not consider whether he has established prejudice.  See Engle 
v. Isaac,
456 U.S. 107
, 134 n.43 (1982); Leroy v. Marshall,
757 F.2d 94, 100
(6th Cir. 1985).   
     Petitioner also cannot excuse his default under the miscarriage-of-justice exception.  
Petitioner at no time has alleged actual innocence, much less shown by new evidence that it is 
more likely than not that no reasonable juror would have found petitioner guilty beyond a 
reasonable doubt.  House,
547 U.S. at 536
(citing Schlup,
513 U.S. at 327
).  As a consequence, 

Petitioner has procedurally defaulted his claim that trial counsel was ineffective in failing to file a 
motion to suppress his arrest and the searches of the house and the car.  
     To the extent that Petitioner alleges that he should have received a Ginther hearing 
on his claims of ineffective assistance of counsel, he also has defaulted his claim.  Petitioner at no 
time moved for a Ginther hearing,1 and he made no factual representations about what he expected 
to show at that hearing.  As the Michigan Supreme Court held in Ginther,  

1 In People v. Ginther,
212 N.W.2d 922
(Mich. 1973), the Michigan Supreme Court approved the process of remanding 
to the trial court for an evidentiary hearing when an appellant has raised claims of ineffective assistance of counsel 
that require development of a record.  However, as the Michigan Supreme Court held in Ginther, “A defendant who 
wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level 
                          27                                         
A defendant who wishes to advance claims that depend on matters not of record 
can properly be required to seek at the trial court level an evidentiary hearing for 
the purpose of establishing his claims with evidence as a precondition to invoking 
the processes of the appellate courts except in the rare case where the record 
manifestly shows that the judge would refuse a hearing; in such a case the defendant 
should seek on appeal, not a reversal of his conviction, but an order directing the 
trial court to conduct the needed hearing.
212 N.W.2d at 925
.  Petitioner filed no motion in the trial court and made no factual showing to 
the court of appeals that would have warranted remand.  The court of appeals therefore relied 
solely on the record in reaching its result.                              
     Petitioner’s  failure  to  follow  the  procedural  rules  again  is  a  default.    The 
requirement of a motion has been well established since the issuance of Ginther in 1973.  And, as 
with Petitioner’s default of his failure to develop his search-and-seizure claim, Petitioner has 
alleged neither cause and prejudice nor miscarriage of justice to excuse the default. 
     With respect to the remaining findings of the court of appeals on Petitioner’s claims 
of ineffective assistance of trial counsel, Petitioner makes no substantive argument.  Indeed, in his 
argument in his application for leave to appeal to the Michigan Supreme Court, Petitioner concedes 
that the bases for his claims would not be found in the record.  (See Appl. for Lv. to Appeal to 
Mich. Sup. Ct., ECF No. 1, PageID.45.)                                    
     That said, the Michigan Court of Appeals reasonably concluded that Petitioner had 
recited no facts that would support a favorable determination on either prong of the Strickland 
standard.  Petitioner did not identify what any background investigation would have turned up; 

an evidentiary hearing for the purpose of establishing his claims with evidence as a precondition to invoking the 
processes of the appellate courts except in the rare case where the record manifestly shows that the judge would refuse 
a hearing; in such a case the defendant should seek on appeal, not a reversal of his conviction, but an order directing 
the trial court to conduct the needed hearing.”  Id. at 925.  Petitioner filed no motion in the trial court and made no 
factual showing to the court of appeals that would have warranted remand. 
                          28                                         
how that information would have affected the outcome of trial; or how the searches and arrest were 
improper.  A court “cannot conclude that [] counsel was deficient solely on [the petitioner’s] 
version.”  See Fitchett v. Perry,
644 F. App’x 485, 489
(6th Cir. 2016) (holding that “sheer 
speculation” of inadequate investigation does not state a claim).  “It should go without saying that 
the absence of evidence cannot overcome the ‘strong presumption that counsel’s conduct [fell] 

within the wide range of reasonable professional assistance.’”  Burt,
571 U.S. at 23
(quoting 
Strickland,
466 U.S. at 689
).                                             
     Further, with respect to Petitioner’s argument that counsel was ineffective for 
failing to challenge the trial court’s jurisdiction, the claim is not cognizable on habeas review.  The 
determination of whether a state court is vested with jurisdiction under state law over a criminal 
case is a function of the state courts, not the federal courts.  Wills v. Egeler,
532 F.2d 1058, 1059
(6th Cir. 1976).  As the Court earlier discussed, a federal habeas court may not re-examine state-
law determinations on state-law questions.  Bradshaw,
546 U.S. at 76
; Estelle,
502 U.S. at 68
.  The 
decision of the state courts on a state-law issue is binding on this Court.  See Wainwright,
464 U.S. 

at 84
; Stumpf,
722 F.3d at 746
n.6.  Specifically, with regard to jurisdictional issues, the Sixth 
Circuit has stated that “a state court’s interpretation of state jurisdictional issues conclusively 
establishes jurisdiction for purposes of federal habeas review.”  Strunk v. Martin,
27 F. App’x 473, 
475
(6th Cir. 2001).                                                      
     To the extent that Petitioner intends to argue that trial counsel was ineffective with 
respect to any of his other exhausted habeas grounds, his claim is meritless.  Because Petitioner 
fails to demonstrate any error by counsel, Petitioner’s claim that the various failures of counsel 
cumulated to deprive him of the effective assistance of counsel necessarily fails. 

                          29                                         
     For  all  these  reasons,  Petitioner’s  fifth  ground  for  habeas  relief  is  either 
procedurally defaulted or without merit.  Accordingly, he is not entitled to habeas relief. 
VIII.  Motion for Stay & Abeyance                                         
     Petitioner has filed a motion to stay the petition and hold it in abeyance while 
Petitioner raises a new claim that trial counsel was ineffective in failing to investigate and discover 

eyewitness Frances Perez, who would challenge the credibility of Siad Brown, the prosecutor’s 
chief witness.                                                            
     Petitioner attaches an affidavit from Ms. Perez, as well as his own affidavit.  In her 
affidavit (ECF No. 8-1, PageID.24-25), signed on October 24, 2019, Perez avers that Petitioner 
originally was on the front porch when Siad Brown challenged him to a fight.  Petitioner came off 
the porch to confront Brown about his behavior.  According to Perez, she then asked Petitioner to 
come into the house and wait while she helped Shawntay Williams (Brown’s girlfriend) get some 
things to wear, because Williams planned to go to Perez’s house.  While she was packing, Perez 
heard a knock at the door.  She and Williams approached the door, and she noticed that it was the 
Grand Rapids police, who advised them that the police had received a report of gun shots fired.  

Williams gave the officers permission to come into the house.  Perez witnessed the officers 
handcuff Petitioner.  Perez avers that she told the officers that it was Brown who was walking 
around the house with a gun in his waistband and that Perez had been the one to ask Petitioner to 
come over to the house to pick her up.  Perez avers that, despite giving the officers her information, 
she never was contacted by the prosecution or the defense.  Perez claims that she was available 
and would have testified had she been asked.  (Id.)                       
     In his affidavit, Petitioner asserts that he informed both trial counsel and appellate 
counsel about witness Perez, who could confirm Petitioner’s story that it was Brown who was 
                          30                                         
walking around with the gun.  (Pet’r’s aff., ECF No. 8-1, PageID.26-28.)  Petitioner avers that, 
despite his awareness of Perez as a potential witness, trial counsel failed to contact her and produce 
her at trial.  He also avers that he asked his appellate attorney to investigate the issue before 
preparing the appeal, but she refused to do so.  (Id.)                    
     Before the Court may grant habeas relief to a state prisoner, the prisoner must 

exhaust remedies available in the state courts.
28 U.S.C. § 2254
(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842
(1999).  Exhaustion requires a petitioner to “fairly present” federal claims so 
that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing 
upon a petitioner’s constitutional claim.
Id. at 844, 848
; see also Picard v. Connor,
404 U.S. 270, 
275-77
(1971); Duncan v. Henry,
513 U.S. 364, 365
(1995); Anderson v. Harless,
459 U.S. 4, 6
(1982).  To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal 
claims to all levels of the state appellate system, including the state’s highest court.  O’Sullivan,
526 U.S. at 845
; Wagner v. Smith,
581 F.3d 410, 414
(6th Cir. 2009); Hafley v. Sowders,
902 F.2d 
480, 483
(6th Cir. 1990).  The district court can and must raise the exhaustion issue sua sponte 

when it clearly appears that habeas claims have not been presented to the state courts.  See Prather 
v. Rees,
822 F.2d 1418, 1422
(6th Cir. 1987); Allen v. Perini,
424 F.2d 134, 138-39
(6th Cir. 1970).   
     Petitioner bears the burden of showing exhaustion.  See Rust v. Zent,
17 F.3d 155, 
160
(6th Cir. 1994).  As discussed earlier in this petition, Petitioner’s first five grounds for habeas 
relief were fully exhausted in the state courts.  Petitioner acknowledges that his new claim of 
ineffective assistance of counsel has never been presented at any level of the state courts. 
     An applicant has not exhausted available state remedies if he has the right under 
state law to raise, by any available procedure, the question presented.
28 U.S.C. § 2254
(c).  

                          31                                         
Petitioner requests an opportunity to exhaust his new claim by filing a motion for relief from 
judgment under Mich. Ct. R. 6.500 et seq.  Under Michigan law, one such motion may be filed 
after August 1, 1995.  Mich. Ct. R. 6.502(G)(1).  Petitioner has not yet filed his one allotted motion.  
Therefore, the Court concludes that he has at least one available state remedy.  To properly exhaust 
his claim, Petitioner would have to file a motion for relief from judgment in the Kent County 
Circuit Court.  If his motion subsequently is denied by the circuit court, Petitioner would be 

required to appeal that decision to the Michigan Court of Appeals and the Michigan Supreme 
Court.  O’Sullivan,
526 U.S. at 845
; Hafley,
902 F.2d at 483
(“‘[P]etitioner cannot be deemed to 
have exhausted his state court remedies as required by
28 U.S.C. § 2254
(b) and (c) as to any issue, 
unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan 
Supreme Court.’”) (citation omitted).                                     
     But the addition of Petitioner’s proposed new claim would result in a petition 
containing some claims that are exhausted and some that are not; in other words, his petition would 
be “mixed.”  Under Rose v. Lundy,
455 U.S. 509, 522
(1982), district courts are directed to dismiss 
mixed petitions without prejudice in order to allow petitioners to return to state court to exhaust 
remedies.  However, since the habeas statute was amended to impose a one-year statute of 

limitations on habeas claims, see
28 U.S.C. § 2244
(d)(1), dismissal without prejudice often 
effectively precludes future federal habeas review.  This is particularly true after the Supreme 
Court ruled in Duncan v. Walker,
533 U.S. 167
, 181-82 (2001), that the limitations period is not 
tolled during the pendency of a federal habeas petition.  As a result, the Sixth Circuit adopted a 
stay-and-abeyance procedure to be applied to mixed petitions.  See Palmer v. Carlton,
276 F.3d 
777, 781
(6th Cir. 2002).  In Palmer, the Sixth Circuit held that when the dismissal of a mixed 
petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss 
only the unexhausted claims and stay further proceedings on the remaining portion until the 
petitioner has exhausted his claims in the state court.  Id.; see also Rhines v. Weber,
544 U.S. 269, 
277
(2007) (approving stay-and-abeyance procedure); Griffin v. Rogers,
308 F.3d 647
, 652 n.1 
(6th Cir. 2002).                                                          
     Petitioner’s application is subject to the one-year statute of limitations provided in
28 U.S.C. § 2244
(d)(1).  Under that provision, the one-year limitations period runs from “the date 
on which the judgment became final by the conclusion of direct review or the expiration of the 

time for seeking such review.”
28 U.S.C. § 2244
(d)(1)(A).  The Michigan Supreme Court denied 
leave to appeal on December 4, 2018.  Petitioner did not file a petition for certiorari to the United 
States Supreme Court.  The one-year limitations period, however, did not begin to run until the 
ninety-day period in which Petitioner could have sought review in the United States Supreme 
Court had expired.  See Lawrence v. Florida,
549 U.S. 327, 332-33
(2007); Bronaugh v. Ohio,
235 
F.3d 280, 283
(6th Cir. 2000).  The ninety-day period expired on March 4, 2019.  Accordingly, 
absent tolling, Petitioner would have had one year, until March 4, 2020, in which to file a habeas 
petition raising his new claim.                                           
     Petitioner mailed his original petition in this case on December 11, 2019, when he 
still had 83 days remaining in his limitations period.  However, he did not mail his motion for a 

stay to exhaust his new issue until March 10, 2020, nearly a week after his limitations period had 
expired.2                                                                 



2 Petitioner alleges that he mailed his motion for stay and abeyance to the Eastern District of Michigan on January 13, 
2020.  The records of both the Eastern District of Michigan and this Court contain no such filing.  As evidence of his 
prior attempt to file his motion, Petitioner purports to attach a copy of the original motion to his current motion.  (See, 
ECF No. 8-1, PageID.8.)  However, both the cover letter to the Eastern District of Michigan and the attached motion 
are dated the same as his current motion, March 10, 2020, thus undercutting his claim.  (See ECF No. 8-1, PageID.15, 
22.)  The record therefore belies Petitioner’s claim to have filed his motion earlier than March 10, 2020.   
     “‘[W]hen a prisoner files an original petition within the one-year deadline, and later 
presents new claims in an amended petition filed after the deadline passes, the new claims relate 
back to the date of the original petition if the new claims share a ‘common core of operative facts’ 
with the original petition.’”  Cowan v. Stovall,
645 F.3d 815, 818
(6th Cir. 2011) (quoting Mayle 
v. Felix,
545 U.S. 644, 650
(2005)); see
28 U.S.C. § 2242
(providing that habeas applications “may 
be amended . . . as provided in the rules of procedure applicable to civil actions”).  Rule 15(c)(1) 

provides that an amendment relates back when it “asserts a claim . . . that arose out of the conduct, 
transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]”  If a 
petition raises a new claim that does not relate back, however, AEDPA’s statute of limitations bars 
consideration of the new claim.  Mayle,
545 U.S. at 656-57
.               
     In Mayle, the Supreme Court rejected the proposition that an amended petition 
asserting new habeas claims relates back simply because the new claims arise from the same “trial, 
conviction, or sentence” as the original petition.
Id. at 663-64
.  The Court noted that “the key 
words [in Rule 15(c)(1)] are ‘conduct, transaction, or occurrence,’” and that the rule “relaxes, but 
does not obliterate, the statute of limitations.”
Id. at 656
, 659 (quoting Rule 15(c)).  The Court 
explained that “relation back depends on the existence of a common ‘core of operative facts’ 

uniting the original and newly asserted claims.”
Id. at 659
.  Applying relation back for any trial, 
conviction, or sentence, the Court concluded, was too broad a rule, as it would allow “virtually 
any new claim introduced in an amended petition [to] relate back[] for federal habeas claims.”
Id. 
at 657
.   Instead, the court held that “[a]n amended habeas petition does not relate back (and thereby 
escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts 
that differ in both time and type from those in the original pleading.”
Id. at 650, 663
(rejecting an 
“unconstrained reading” of Rule 15(c)(1)).                                
     The  Court  also  explained  that  an  overly  broad  relation-back  doctrine  would 
contravene Congress’s intent in enacting AEDPA “to the finality of criminal convictions.”
Id.
at 
661 (citing Rhines,
544 U.S. at 276
(2005)). That is, Congress intentionally “adopted a tight time 
line, a one-year limitation period,” and “[i]f claims asserted after the one-year period could be 
revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, 
AEDPA’s limitation period would have slim significance.”  Id. at 662.     

     Here, Petitioner asserts an entirely new claim of ineffective assistance of trial and 
appellate counsel.  Although Petitioner, in his initial petition, raised general claims of ineffective 
assistance of counsel, including a claim that his attorney “fail[ed] to prepare,” he made no claim 
that his attorney failed to investigate or produce Ms. Perez at trial—a witness Petitioner knew and 
whose presence Petitioner was aware of at the time of the offense.        
     Further, even assuming that Petitioner intended to raise such a claim on appeal, 
Petitioner provided no specifics about his claim in the Michigan appellate courts.  As discussed 
earlier in this opinion, the lack of development and support for his ineffective-assistance-of-
counsel claim resulted in his procedural default of that claim.  As a result, even were the Court to 
conclude that the new claim related back, Petitioner would be barred from pursuing his claim by 

his earlier procedural default.  His proposed amendment to the petition therefore is untimely under 
§ 2244(d)(1)(A).                                                          
     Petitioner’s  habeas  application  also  is  time-barred  when  analyzed  under 
§ 2244(d)(1)(D).  That section provides that the period of limitations runs from “the date on which 
the factual predicate of the claim or claims presented could have been discovered through the 
exercise of due diligence.”  Id.  Under § 2244(d)(1)(D), the time under the limitations period begins 
to run is when a petitioner knows, or through due diligence, could have discovered, the important 
facts for his claims, not when the petitioner recognizes the legal significance of the facts.  See 
Redmond v. Jackson,
295 F. Supp. 2d 767, 771
(E.D. Mich. 2003) (citing Owens v. Boyd,
235 F.3d 
356, 359
(7th Cir. 2000).  “The question under the provision is not when prisoners first learned of 
the new evidence; it is when they should have learned of the new evidence had they exercised 
reasonable care.”  Townsend v. Lafler,
99 F. App’x 606, 608
(6th Cir. 2004). Section 2244(d)(1)(D) 
“does not convey a statutory right to an extended delay while a petitioner gathers every possible 
scrap of evidence that might support his claim.
Id.
(quoting Sorce v. Artuz,
73 F. Supp. 2d 292, 

294-95
(E.D.N.Y. 1999)).”
Id.
“Rather, it is the actual or putative knowledge of the pertinent 
facts of a claim that starts the clock running on the date on which the factual predicate of the claim 
could have been discovered through due diligence, and the running of the limitations period does 
not await the collection of evidence which supports the facts, including supporting affidavits.”
Id.
(citing Tate v. Pierson,
177 F. Supp. 2d 792, 800
(N.D. Ill. 2001), and Flanagan v. Johnson,
154 
F.3d 196, 198-99
(5th Cir. 1998)).  Furthermore, a habeas petitioner has the burden of proof in 
establishing that he exercised due diligence in searching for the factual predicate of the habeas 
claims.  Stokes v. Leonard,
36 Fed. Appx. 801, 804
(6th Cir. 2002).  Unsupported and conclusory 
arguments are insufficient to warrant application of § 2244(d)(1)(D).  Redmond,
295 F. Supp. 2d 
at 772
; Grayson v. Grayson,
185 F. Supp. 2d 747, 750-51
(E.D. Mich. 2002) (holding that a 

petitioner does not show how the factual predicate could not have been discovered earlier if he 
fails to indicate the steps he took to discover the claims).  The key to deciding whether evidence 
is ‘newly discovered’ or only ‘newly available’ is to ascertain when the defendant found out about 
the information at issue.”  United States v. Turns,
198 F.3d 584, 587
(6th Cir. 2000).  
     Here, although Perez only signed her affidavit on October 24, 2019, Petitioner knew 
Perez before he was arrested and knew that Perez was present in the home that evening.  Indeed, 
Petitioner claims that he told his trial and appellate attorneys to contact her.  Given this knowledge, 
Petitioner cannot demonstrate that Perez’s affidavit amounts to newly discovered evidence within 
the meaning of § 2244(d)(1)(D).                                           
     Although Petitioner’s new claim is not timely under either § 2244(d)(1)(A) or (D), 
the one-year limitations period is subject to equitable tolling.  See Holland v. Florida,
560 U.S. 
631
, 645 (2010); Akrawi v. Booker,
572 F.3d 252, 260
(6th Cir. 2009); Keenan v. Bagley,
400 F.3d 
417, 420
(6th Cir. 2005).  A petitioner bears the burden of showing that he is entitled to equitable 

tolling.  See Keenan,
400 F.3d at 420
; Allen v. Yukins,
366 F.3d 396, 401
(6th Cir. 2004).  The 
Sixth Circuit repeatedly has cautioned that equitable tolling should be applied “sparingly” by this 
Court.  See Hall v. Warden, Labanon Corr. Inst.,
662 F.3d 745, 749
(6th Cir. 2011); Robertson v. 
Simpson,
624 F.3d 781, 784
(6th Cir. 2010); Sherwood v. Prelesnik,
579 F.3d 581, 588
(6th Cir. 
2009).  A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of 
establishing two elements: “(1) that he has been pursuing his rights diligently, and (2) that some 
extraordinary  circumstance  stood  in  his  way.”    Holland,  560  U.S.  at  649  (citing  Pace  v. 
DiGuglielmo,
544 U.S. 408, 418
(2005)); Lawrence,
549 U.S. at 335
; Hall,
662 F.3d at 749-50
; 
Akrawi,
572 F.3d at 260
.                                                  
     Petitioner, however, cannot demonstrate the requisite diligence.  Petitioner was 

fully aware of Ms. Perez as a witness and of her ability to give favorable testimony.  Although 
Petitioner blames his attorneys for failing to produce Ms. Perez at trial and failing to raise a claim 
of ineffective assistance of counsel on appeal concerning that failure, Petitioner himself failed to 
bring the issue to the Michigan courts in a timely fashion.  Petitioner filed a pro per supplemental 
brief  in  the  Michigan  Court  of  Appeals,  in  accordance  with  Michigan  Supreme  Court 
Administrative Order 2004-6.  In his brief, Petitioner raised claims of ineffective assistance of 
counsel, but he utterly failed to identify the potential testimony of Ms. Perez. (See Mich. Ct. App. 
Op., ECF No. 1, PageID.24-25.)  He also made no mention of Ms. Perez in his application for 
leave to appeal to the Michigan Supreme Court, despite arguing that counsel was ineffective.  (See, 
Pet’r’s Appl. for Leave to Appeal, ECF No. 1, PageID.45-46.)  In addition, during the year between 
the Michigan Supreme Court’s denial of his application for leave to appeal and Petitioner’s filing 
of his habeas petition, Petitioner made no attempt to exhaust his claim, despite his knowledge of 
Ms. Perez.  Because he failed to exercise diligence in presenting his claim, Petitioner is not entitled 
to equitable tolling of the statute of limitations.                       

     Alternatively, Petitioner may intend to suggest that he is entitled to tolling of the 
statute of limitations because Ms. Perez’s affidavit suggests that he is actually innocent of the 
offense.  In McQuiggin v. Perkins,
569 U.S. 383, 392-93
(2013), the Supreme Court held that a 
habeas petitioner who can show actual innocence under the rigorous standard of Schlup v. Delo,
513 U.S. 298
(1995), is excused from the procedural bar of the statute of limitations under the 
miscarriage-of-justice exception.  In order to making a showing of actual innocence under Schlup, 
a Petitioner must present new evidence showing that “‘it is more likely than not that no reasonable 
juror would have convicted [the petitioner].’”  McQuiggin,
569 U.S. at 399
(quoting Schlup,
513 
U.S. at 329
) (addressing actual innocence as an exception to procedural default)).  Because actual 
innocence provides an exception to the statute of limitations rather than a basis for equitable 

tolling, a petitioner who can make a showing of actual innocence need not demonstrate reasonable 
diligence in bringing his claim, though a court may consider the timing of the claim in determining 
the credibility of the evidence of actual innocence.
Id. at 399-400
.     
     Although  Perez’s  affidavit  provides  some  evidence  to  impeach  prosecution’s 
witnesses Brown and Williams, it falls short of showing that he is actually innocent under the 
demanding Schlup standard.  At best, it presents a question a fact on some points of testimony.  
Further, the affidavit does not address the firing of shots, nor does it dispute the evidence 
concerning Petitioner’s location in the house when the police arrived or dispute the facts that 
Petitioner possessed a large sum of money and had drug paraphernalia in his vehicle.  Under these 
circumstances, Petitioner fails to show that “‘it is more likely than not that no reasonable juror 
would have convicted [the petitioner].’”  McQuiggin,
569 U.S. at 399
(quoting Schlup,
513 U.S. 
at 329
).                                                                  
     Finally, even if Petitioner’s proposed new claim were deemed timely for any 
reason, Petitioner would not be entitled to a stay for the purposes of exhaustion.  As previously 

discussed, the Supreme Court has held that the type of stay-and-abeyance procedure set forth in 
Palmer should be available only in limited circumstances because over-expansive use of the 
procedure would thwart the AEDPA’s goals of achieving finality and  encouraging petitioners to 
first exhaust all of their claims in the state courts.  See Rhines v. Weber,
544 U.S. 269, 277
(2005).  
A district court contemplating stay and abeyance should only stay the mixed petition pending 
exhaustion of state remedies if there is “good cause” for the petitioner’s failure to exhaust, if the 
petitioner’s unexhausted claims are not “plainly meritless” and if there is no indication that the 
petitioner engaged in “intentionally dilatory litigation tactics.”
Id. at 278
.   
     Here, Petitioner cannot demonstrate good cause for his failure to exhaust his new 
claim prior to filing his habeas petition.  As earlier discussed, Petitioner was fully aware of Ms. 

Perez as a witness at the time of trial; he failed to raise the issue, despite filing pro per briefs in the 
Michigan Court of Appeals and the Michigan Supreme Court; and he made no attempt to exhaust 
his claim in the year between the supreme court’s decision and the filing of his petition in this 
Court. and of her ability to give favorable testimony.  Petitioner’s failures undermine a claim of 
good cause to excuse his failure to exhaust.                              
     For all these reasons, Petitioner’s motion to stay the petition and hold it in abeyance 
will be denied.                                                           
IX.  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 claims.
Id.
The  Court  finds  that  reasonable  jurists  could  not  conclude  that  this  Court’s 
dismissal of Petitioner’s claims was debatable or wrong.  Therefore, the Court will deny Petitioner 
a certificate of appealability.  Nevertheless, 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 dismissing the petition and an order denying 
Petitioner’s motion to stay the petition and denying a certificate of appealability. 

Dated:   March 26, 2020            /s/ Paul L. Maloney                    
                              Paul L. Maloney                        
                              United States District Judge