Ford v. Rewerts

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UNITED STATES DISTRICT COURT                              
               EASTERN DISTRICT OF MICHIGAN                              
                     SOUTHERN DIVISION                                   
MARCUS DARNELL FORD,                                                     

     Petitioner,                 Case No.   22-cv-11540                  

v.                               Honorable Shalina D. Kumar              
                                 United States District Judge            

RANDEE REWERTS,                                                          

     Respondent.                                                         


   OPINION AND ORDER DENYING PETITION FOR A WRIT OF                      
HABEAS CORPUS DENYING A CERTIFICATE OF APPEALABILITY                     
           AND DENYING REQUEST FOR DISCOVERY                             

    This is a pro se habeas case brought pursuant to
28 U.S.C. § 2254
.   
Petitioner Marcus Darnell Ford was convicted by a Wayne County jury of    
felony murder,
Mich. Comp. Laws § 750.316
(b); torture,
Mich. Comp. Laws   
§ 750.85
; and unlawful imprisonment,
Mich. Comp. Laws § 750.349
(b). The   
state trial court sentenced Ford to life in prison for the felony murder and 
torture  convictions,  and  10  to  15  years  in  prison  for  the  unlawful 
imprisonment conviction. His petition raises seven claims for habeas relief. 
For the reasons set forth, the Court DENIES the habeas petition. The Court 
also DENIES a certificate of appealability and DENIES Ford’s request for  
transcripts and discovery, ECF No. 9.                                     

                       I.   BACKGROUND                                   
    Ford’s convictions arose from the murder of his mother’s boyfriend in 
Detroit, Michigan. This Court recites the facts from the Michigan Court of 

Appeals’ opinion affirming his convictions, which are presumed correct on 
habeas review.
28 U.S.C. § 2254
(e)(1); see Wagner v. Smith,
581 F.3d 410, 
413
(6th Cir. 2009):                                                      
    Defendant’s convictions arise from the murder of Ali Beasley, his    
    mother's boyfriend, in the early morning hours of January 5, 2015    
    in Detroit, Michigan. Beasley was discovered by first responders     
    in a field next to an abandoned home and taken to a hospital at      
    approximately 3:00 a.m. on January 5 where he died there some        
    seven hours later.                                                   

People v. Ford, No. 336500,
2019 WL 1371175
, at *1 (Mich. Ct. App. Mar.   
26, 2019).                                                                
    The  jury  convicted  Ford  of  felony  murder,  torture,  and  unlawful 
imprisonment. After sentencing, Ford filed a claim of appeal in the Michigan 
Court of Appeals.  Ford raised the following claims through counsel:      
    I.   Was Mr. Ford denied the constitutional right to effective       
         assistance  of  counsel  and  should  be  granted  an           
         evidentiary hearing and/or a new trial?                         

    II.  Did  the  trial  court  err  when  admitting  Ali  Beasley’s    
         statements to the police as a dying declaration where there     
         was a lack of foundation that Beasley believed death was        
         imminent?                                                       

    III.  Was Mr. Ford’s right to a speedy trial violated when trial on  
         the third case did not commence until 668 days after the        
         initial arraignment?                                            

ECF No. 7-22, PageID.1692.                                                

    Ford  also  filed  his  own  pro  se  Standard  4  brief,  which  raised  the 
following additional claims:                                              
    I.   Was sufficient evidence of Mr. Ford’s identity presented at     
         the preliminary examination in order to support the district    
         court’s decision to bind over?                                  

    II.  Did the trial court abuse its discretion in allowing evidence   
         that had been deemed inadmissible hearsay and testimony         
         from an incredible witness to be used against Mr. Ford?         

    III.  Was Mr. Ford denied his right to a fair trial due to spoliation 
         of  evidence  where  cell  phone  evidence  was  altered  to    
         improve the validity of prosecution witnesses and discredit     
         Mr. Ford?                                                       

    IV.  Did the prosecution violate Mr. Ford’s due process rights       
         by  engaging  in  such  prosecutorial  misconduct  as           
         tampering with witness testimony, vouching for perjured         
         testimony,  making  improper  insinuations,  and  plea          
         bargaining for testimony from an incredible witness?
Id.
at PageID.1739-1740                                                   
    The Michigan Court of Appeals rejected Ford’s claims and affirmed his 
convictions and sentence. Ford,
2019 WL 1371175
, at *14. Ford filed an    
application for leave to appeal in the Michigan Supreme Court. On February 
4, 2020, the court denied the application “because [it was] not persuaded 

that the questions presented should be reviewed by [the] Court.” People v. 
Ford,
505 Mich. 974
,
937 N.W.2d 661
(2020).                               
    On September 14, 2020, Ford returned to the state trial court and filed 

a motion for relief from judgment raising claims concerning spoliation of 
evidence, inadmissible hearsay statements, violation of the Confrontation 
Clause,  ineffective  assistance  of  trial  and  appellate  counsel,  and 
prosecutorial misconduct.  On January 15, 2021, the trial court denied some 

claims as being barred under Michigan Court Rule 6.508(D)(2) and rejected 
all claims on the merits. ECF No. 7-19, PageID.1471-1474.  The trial court 
further denied Ford’s motion for reconsideration. ECF No. 7-21. After the trial 

court denied the motion for relief from judgment, Ford filed an application for 
leave to appeal in the Michigan Court of Appeals. The court denied the    
application  because  Ford  failed  to  establish  that  the  trial  court  erred  in 
denying the motion for relief from judgment. ECF No. 7-24, PageID.1949.   

Ford applied for leave to appeal this decision in the Michigan Supreme Court 
but was denied relief under Michigan Court Rule 6.508(D). People v. Ford,
969 N.W.2d 36
(Mich. 2022).                                               
    On June 29, 2022, Ford filed his habeas petition in this Court. The  
Court understands the petition to be raising the following claims:        

    I.   Petitioner’s  Fourteenth  Amendment  and  the  Daubert          
         precedent were violated due to the spoliation of evidence       
         by cell phone expert Stan Brue.                                 

    II.  The Michigan courts violated Petitioner’s Due Process and       
         Confrontation Rights by allowing an out of court statement      
         to police to be improperly admitted as a dying declaration.     

    III.  The  Michigan  courts,  at  all  three  levels  violated  the  
         petitioner’s Sixth Amendment Rights to a Speedy Trial.          

    IV.  The Michigan courts, at all three levels violated Petitioner’s  
         Sixth  Amendment  Rights  to  Effective  Assistance  of         
         Counsel.                                                        

    V.   The Michigan courts erred on all three levels, when they        
         decided the prosecutor did not engage in misconduct that        
         violated Petitioner’s Constitutional Rights.                    

    VI.  The Michigan courts acted in unison to violate Petitioner’s     
         Compulsory Rights.                                              

    VII.  The  Michigan  courts  acted  in  unison  to  affect  the      
         framework of the Petitioner’s trial created Structural Errors.  
ECF No. 1, PageID.27.                                                     
    Respondent filed an answer contending that several of Ford’s claims  
are procedurally defaulted, and all claims lack merit. Ford filed a reply.  

                     II.  LEGAL STANDARD
28 U.S.C. § 2254
(d), as amended by The Antiterrorism and Effective   
Death Penalty Act of 1996 (AEDPA), imposes the following standard of      

review for habeas cases:                                                  
         An application for a writ of habeas corpus on behalf of a       
    person in custody pursuant to the judgment of a State court shall    
    not be granted with respect to any claim that was adjudicated on     
    the merits in State court proceedings unless the adjudication of     
    the claim–                                                           

         (1)  resulted  in  a  decision  that  was  contrary  to,  or    
    involved  an  unreasonable  application  of,  clearly  established   
    Federal law, as determined by the Supreme Court of the United        
    States; or                                                           

         (2)  resulted  in  a  decision  that  was  based  on  an        
    unreasonable determination of the facts in light of the evidence     
    presented in the State court proceeding.                             

A decision of a state court is “contrary to” clearly established federal law if 
the  state  court  arrives  at  a  conclusion  opposite  to  that  reached  by  the 
Supreme Court on a question of law or if the state court decides a case   
differently  than  the  Supreme  Court  has  on  a  set  of  materially   
indistinguishable facts. Williams v. Taylor,
529 U.S. 362, 405-06
(2000). An 
“unreasonable  application”  occurs  when  “a  state  court  decision     
unreasonably  applies  the  law  of  [the  Supreme  Court]  to  the  facts  of  a 
prisoner’s case.”
Id. at 409
. A federal habeas court may not “issue the writ 
simply because that court concludes in its independent judgment that the  
relevant  state-court  decision  applied  clearly  established  federal  law 
erroneously or incorrectly.”
Id. at 410-11
. “[A] state court’s determination that 

a claim lacks merit precludes federal habeas relief so long as ‘fairminded 
jurists  could  disagree’  on  the  correctness  of  the  state  court’s  decision.” 
Harrington  v.  Richter,
562  U.S.  86,  101
(2011)  (citing  Yarborough  v. 

Alvarado,
541 U.S. 652, 664
(2004)). Therefore, in order to obtain habeas 
relief in federal court, a state prisoner is required to show that the state 
court’s rejection of his claim “was so lacking in justification that there was an 
error  well  understood  and  comprehended  in  existing  law  beyond  any 

possibility for fairminded disagreement.”  Harrington,
562 U.S. at 103
.   
                        III.  DISCUSSION                                 

 A. Procedural Default                                                   
    Respondent argues that Ford has procedurally defaulted several of his 
claims, including habeas claims I,1 III, IV (in part), V, VI, and VII. Ford argues 

that any procedural default should be excused based on a showing of good  
cause and actual innocence. The Court will address whether the claims are 
procedurally defaulted in turn.                                           

    1. Procedural Default Standard                                       

1    The Court finds that habeas claim I is not procedurally defaulted and will proceed 
to the merits of the claim.                                               
    A petitioner must meet certain procedural requirements to have his   
claims reviewed in federal court. Smith v. Ohio Dep’t of Rehab. & Corr.,
463 

F.3d  426,  430
(6th  Cir.  2006).  “Procedural  barriers,  such  as  .  .  .  rules 
concerning procedural default and exhaustion of remedies, operate to limit 
access to review on the merits of a constitutional claim.” Daniels v. United 

States,
532 U.S. 374, 381
(2001). Procedural default may occur in two ways. 
First, a petitioner may procedurally default a claim if he fails “to comply with 
state procedural rules in presenting his claim to the appropriate state court.”
Id.
In the Sixth Circuit, “[a] habeas petitioner procedurally defaults a claim 

when ‘(1) [he] fails to comply with a state procedural rule; (2) the state courts 
enforce the rule; [and] (3) the state procedural rule is an adequate and  
independent  state  ground  for  denying  review  of  a  federal  constitutional 

claim.’ ” Theriot v. Vashaw,
982 F.3d 999, 1003
(6th Cir. 2020) (quoting  
Wheeler v. Simpson,
852 F.3d 509, 514
(6th Cir. 2017)); accord Guilmette v. 
Howes,
624 F.3d 286, 290
(6th Cir. 2010) (en banc).                       
    Second, “a petitioner may procedurally default a claim by failing to 

raise a claim in state court and pursue that claim through the state’s ‘ordinary 
appellate review procedures.’ ” See Williams v. Anderson,
460 F.3d 789, 806
(6th Cir. 2006) (quoting O'Sullivan v. Boerckel,
526 U.S. 848
(1999)).  “If, at 

the  time  of  the  federal  habeas  petition,  state  law  no  longer  allows  the 
petitioner to raise the claim, the claim is procedurally defaulted.” Id. Thus, 
even if the exhaustion requirement is technically satisfied because no state 

remedies remain available to the petitioner, the petitioner's prior failure to 
present those claims for consideration in state court may cause a procedural 
default that bars federal court review of the claims. Id. (citing Coleman v. 

Thompson,
501 U.S. 722, 732
(1991)).                                      
    2. Claims III and V                                                  

    The Court finds that Ford procedurally defaulted his speedy trial claim 
(claim  III)  because  he  failed  to  comply  with  state  procedural  rules  in 
presenting his claim to the appropriate state court.  For the same reasons, 

the Court finds that Ford procedurally defaulted the following prosecutorial 
misconduct arguments (claim V) that: (1) the prosecutor spoiled the evidence 
through  the  admission  of  Stan  Brue’s  testimony,  (2)  the  prosecutor 
suppressed DNA evidence, (3) the prosecutor improperly admitted evidence  

to show that Petitioner was with Earnest Jackson and Akhoury Geer on the  
night of the murder, and (4) the prosecutor made improper arguments during 
closing.  The  Court  finds  that  the  prosecutorial  misconduct  arguments 

concerning the violations of the Fourth Amendment and flight evidence are 
not procedurally defaulted and will be addressed on the merits.           
     It is “the general and longstanding rule in Michigan that ‘issues that 
are not properly raised before a trial court cannot be raised on appeal absent 

compelling or extraordinary circumstances.’ ” People v. Cain,
498 Mich. 108, 
114
,
869 N.W.2d 829, 832
(2015) (quoting People v. Grant,
445 Mich. 535,  
546
,
520  N.W.2d  123,  128
(1994)).  “[R]equiring  a  contemporaneous  

objection provides the trial court ‘an opportunity to correct the error, which 
could thereby obviate the necessity of further legal proceedings and would 
be  by  far  the  best  time  to  address  a  defendant’s  constitutional  and 
nonconstitutional rights.’ ” People v. Carines,
460 Mich. 750
, 764–65,
597 

N.W.2d 130, 139
(1999) (quoting Grant,
520 N.W.2d at 130
).  Here, for both 
the  speedy  trial  and  the  named  prosecutorial  misconduct  claims,  the 
Michigan Court of Appeals determined that because Ford failed to raise the 

appropriate objections during trial, he did not properly preserve either claim. 
Ford,
2019 WL 1371175
, at *11, 12. Accordingly, the first factor is met.  
    The  second procedural-default  factor  also  is  satisfied  because the 
Michigan Court of Appeals reviewed Ford’s claims for “plain error” due to his 

failure to preserve his claims for appeal.
Id.
“[A] state appellate court’s review 
for plain error is enforcement of a procedural rule.” Theriot,
982 F.3d 999 at 
1004
; accord Hinkle v. Randle,
271 F.3d 239, 244
(6th Cir. 2001) (“[W]e view 
a  state  appellate  court’s  review  for  plain  error  as  the  enforcement  of  a 
procedural default.”).                                                    

    The  third  factor  requires  a  determination  of  whether  the  state 
procedural rule is an adequate and independent state ground for denying   
review of a federal constitutional claim. The Sixth Circuit has determined that 

“Michigan's contemporaneous-objection rule ‘constitutes an adequate and   
independent state ground for foreclosing federal review.’ ”  Theriot,
982 F.3d 
999 at 1004
(quoting Taylor v. McKee,
649 F.3d 446, 451
(6th Cir. 2011)). 
Thus, the third and final procedural-default factor is satisfied, and Ford must 

now provide a basis to excuse the procedural default to have these claims 
reviewed on the merits.                                                   

    3. Claims IV, VI, and VII                                            
    Next,  the  Court  finds  that  Ford  has  procedurally  defaulted  his 
compulsory rights (claim VI), structural error (claim VII), and portions of his 

ineffective assistance of counsel claim (claim IV) because he failed to raise 
these claims in the state courts and no longer has an available state-court 
remedy.                                                                   

    A prisoner seeking federal habeas relief must first exhaust his state 
court  remedies  by  fairly  presenting  the  substance  of  each  federal 
constitutional claim in state court.
28 U.S.C. § 2254
(b); Coleman,
501 U.S. 
at 731
; Wong v. Money,
142 F.3d 313, 322
(6th Cir. 1998). State prisoners 
in Michigan must raise each claim in the Michigan Court of Appeals and in 

the Michigan Supreme Court before seeking federal habeas corpus relief.   
See Manning v. Alexander,
912 F.2d 878, 881
(6th Cir. 1990). The petitioner 
bears the burden of showing that state court remedies have been exhausted. 

Prather v. Rees,
822 F.2d 1418, 1420, n.3
(6th Cir. 1987).  Further, when a 
petitioner  fails  to  exhaust  his  claims,  and  has  no  remaining  state-court 
remedy, his claims are properly deemed procedurally defaulted rather than 
simply unexhausted. See Gray v. Netherland,
518 U.S. 152
, 161–62 (1996);  

Landrum v. Mitchell,
625 F.3d 905, 918
(6th Cir. 2010).                   
    Here, Ford did not raise his compulsory rights or structural error claims 
before the state appellate courts on direct review or before the state trial 

court  on  collateral  review.  Although  Ford  raised  several  ineffective-
assistance-of-trial-counsel claims before the state courts, he did not raise the 
arguments that: (1) counsel failed to follow Ford’s choice of representation, 
ECF No. 1 at PageID.70, (2) counsel failed to subject his case to meaningful 

adversarial testing,
Id.
at PageID.71, (3) counsel failed to investigate and call 
a cell phone expert,
Id.
at PageID.76, and (4) counsel failed to object to the 
prosecutor’s closing statement regarding the bloody glove,
Id.
at PageID.76-

77.                                                                       
    Ford has already filed one motion for relief from judgment, and no state 
remedy remains available. Because Ford failed to properly exhaust these   

habeas claims and now lacks an available remedy to do so, his claims are  
deemed procedurally defaulted. See Carter v. Mitchell,
693 F.3d 555, 564
(6th Cir. 2012); Martin v. Mitchell,
280 F.3d 594, 603
(6th Cir. 2002).  Ford 

must also provide a basis to excuse this default as well.                 
    4. Excusing the Procedural Default                                   

    To overcome procedural default, a petitioner must: (1) show cause for 
the default and demonstrate that actual prejudice resulted from the alleged 
violation  of  federal  law;  or  (2)  show  that  there  will  be  a  fundamental 

miscarriage of justice if the claims are not considered. See Coleman,
501 
U.S. at 750
. “A fundamental miscarriage of justice results from the conviction 
of one who is ‘actually innocent.’ ” Lundgren v. Mitchell,
440 F.3d 754, 764
(6th Cir. 2006) (quoting Murray v. Carrier,
477 U.S. 478, 496
(1986)).    

    First,  to  the  extent  that  Ford  alleges  ineffective  assistance  of  trial 
counsel as cause to excuse his procedural defaults for the speedy trial and 
prosecutorial misconduct claims, such argument fails. The Court finds that 

Ford  cannot  establish  prejudice  (or  entitlement  to  habeas  relief)  as  the  
claims lacks merit for the reasons stated by the Michigan Court of Appeals 
in reviewing the issues for plain error.                                  
    Second, to the extent Ford claims that appellate counsel’s failure to 
raise the compulsory rights, structural error, and ineffective assistance of 

counsel claims on direct appeal excuses his default, his argument similarly 
fails. Ford has not shown that appellate counsel was ineffective. It is well-
established that a criminal defendant does not have a constitutional right to 

have appellate counsel raise every non-frivolous issue on appeal. See Jones 
v. Barnes,
463 U.S. 745, 751
(1983). Moreover, strategic and tactical choices 
regarding which issues to pursue on appeal are “properly left to the sound 
professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59
(6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the 
“process of ‘winnowing out weaker arguments on appeal and focusing on’    
those more likely to prevail.” Smith v. Murray,
477 U.S. at 536
(quoting  

Barnes,
463  U.S.  at  751-52
).  “Generally,  only  when  ignored  issues  are 
clearly  stronger  than  those  presented  will  the  presumption  of  effective 
assistance of appellate counsel be overcome.” Monzo v. Edwards,
281 F.3d  
568,  579
(6th  Cir.  2002).  Appellate  counsel  may  deliver  deficient 

performance and prejudice a defendant by omitting a “dead-bang winner,”   
which is defined as an issue which was obvious from the trial record and  
would have resulted in a reversal on appeal. See Meade v. Lavigne,
265 F. 

Supp. 2d 849, 870
(E.D. Mich. 2003). Appellate counsel filed an appellate 
brief that raised three issues. Appellate counsel reasonably chose to raise 
three  claims  challenging  trial  counsel’s  ineffectiveness,  the  improper 

admission of the victim’s statements, and speedy trial violation. ECF No. 7-
22, PageID.1692.                                                          
    More importantly, this Court notes that in addition to the appellate brief 

filed by appellate counsel, Ford filed a supplemental Standard 4 pro per brief 
on his appeal of right before the Michigan Court of Appeals. Although Ford 
raised several claims, he did not raise the claims regarding violation of his 
compulsory  rights,  structure  error,  or  ineffective  assistance  of  counsel 

claims. Ford took advantage of the opportunity pursuant to the Michigan   
Court Rules to file a supplemental appellate brief to raise claims that had not 
been raised by his appellate counsel, yet failed to include these claims. 

Ford’s inability to explain his own failure to raise his new claims in that 
pleading  undermines  his  claim  that  ineffective  assistance  of  appellate 
counsel was the sole reason his claims were not raised on direct review. See 
Sheffield v. Burt,
731 F. App’x 438
, 442 (6th Cir. 2018) (holding habeas  

petitioner failed to show cause under Rule 6.508(D)(3) for failing to raise 
issues on direct appeal and noting “[petitioner] had the opportunity to raise 
any issues in his Standard 4 brief on direct appeal that he felt his appellate 

counsel should have raised” but he did not raise his defaulted issue); see 
also Rockwell v. Palmer,
559 F. Supp. 2d 817, 834
(W.D. Mich. 2008). The  
Court need not address the issue of prejudice when a petitioner fails to  

establish cause to excuse a procedural default. Murray,
477 U.S. at 533
;  
Long, 722 F.2d at 289.                                                    
    Lastly, Ford argues that his default should be excused because he is 

actually  innocent.  See  Schlup  v.  Delo,
513  U.S.  298
,  326–27  (1995).  “ 
‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” 
Bousley v. United States,
523 U.S. 614, 624
(1998). “To be credible, [a claim 
of  actual  innocence]  requires  petitioner  to  support  his  allegations  of 

constitutional error with new reliable evidence—whether it be exculpatory 
scientific  evidence,  trustworthy  eyewitness  accounts,  or  critical  physical 
evidence—that was not presented at trial.” Schlup,
513 U.S. at 324
.       

    Ford has made no such showing. Ford argues that exculpatory lab      
reports show that another individual’s DNA was on the murder weapon and   
found at the crime scene. ECF No. 8, PageID.2184. The problem with Ford’s 
argument is that the DNA reports are not “new” evidence as the Michigan   

Court of Appeals stated that these DNA reports were admitted into evidence 
at trial. Ford,
2019 WL 1371175
, at *12. Ford therefore cannot establish  
actual innocence on this basis. Accordingly, his prosecutorial misconduct, 

speedy trial, ineffective assistance of counsel (in part), compulsory rights, 
and structural  error  claims  are  barred  by  procedural  default  and  do  not 
warrant habeas relief.                                                    

 B. Due Process Spoliation of Evidence                                   
    Ford  first  argues  that  the  prosecutor  violated  his  Fourteenth 

Amendment due process rights by admitting altered or falsified evidence   
during trial. Specifically, Ford contends that the cellphone analyst, Stan Brue, 
spoliated or destroyed evidence by altering his cellular location data report 
and trial testimony to match the preliminary testimony and plea hearing   

statements  of  Ford’s  co-defendant  Earnest  Jackson,  Jr.  Ford  further 
contends that Brue’s testimony should have been ruled inadmissible under  
the standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 

U.S. 579
(1993). Ford raised this claim on collateral review, which the state 
trial court rejected, concluding that:                                    
    The defendant alleges that the prosecution’s witness Stan Brue       
    spoiled the evidence by changing the times and tower sectors of      
    his reports to match the testimony of Ernest Jackson’s testimony     
    at the preliminary examination. The defendant alleges that Brue      
    altered data to corroborate Jackson’s testimony to show that         
    defendant and Jackson were together the night of the victim’s        
    murder. The defendant does not explain how his exhibits support      
    his allegations.  “An appellant may not merely announce his          
    position and leave it to this Court to discover and rationalize the  
    basis for his claims, . . .”. People v Watson,
245 Mich App 572,     
    587
(2001). Such cursory treatment constitutes abandonment of        
    the issue.
Id.
The defendant is not entitled to relief on this issue.  
ECF No. 7-19, PageID.1471.                                                

    The  state  trial  court  did  not  unreasonably  apply  federal  law  or 
contravene clearly established Supreme Court precedent. To the extent that 
Ford  argues  that  the  admission  of  Brue’s  testimony  violated  any  of  the 
Michigan Rules of Evidence or constituted state-law error, he fails to state a 

cognizable claim. See Estelle v. McGuire,
502 U.S. 62, 67-68
(1991). In   
addition,  “screening  evidence  through  Daubert’s  standards  is  not   
constitutionally required”, Bojaj v. Berghuis,
702 F. App'x 315, 320
(6th Cir. 
2017), and Daubert “cannot serve as a basis for granting habeas corpus    

relief.” Thomas v. Jackson, No. 17-1813,
2018 WL 3491763
, at *3 (6th Cir. 
Feb. 13, 2018).                                                           
    The Court construes Ford’s spoliation-of-evidence claim as alleging  

prosecutorial  error.  When  a  petitioner  makes  a  claim  of  prosecutorial 
misconduct, “the touchstone of due process analysis . . . . is the fairness of 
the trial, not the culpability of the prosecutor.” Cockream v. Jones,
382 Fed. 
Appx. 479, 484
(6th Cir., June 29, 2010) (quoting Smith v. Phillips,
455 U.S. 

209, 219
(1982)). The issue is whether the prosecutor’s conduct “so infected 
the trial with unfairness as to make the resulting conviction a denial of due 
process.”  Gillard  v.  Mitchell,
445  F.3d  883,  897
(6th  Cir.  2006)  (quoting 

Darden v. Wainwright,
477 U.S. 168, 181
(1986)); see also Givens v. Yukins,
2000 WL 1828484
at *6 (6th Cir., Dec. 5, 2000) (“[t]he aim of due process is 
not punishment of society for the misdeeds of the prosecutor but avoidance 

of an unfair trial to the accused”) (quoting Phillips,
455 U.S. at 219
).   
    It has long been recognized that “the knowing use of false or perjured 
testimony constitutes a denial of due process if there is any reasonable  

likelihood that the false testimony could have affected the judgment of the 
jury.” Brooks v. Tennessee,
626 F.3d 878, 894-95
(6th Cir. 2010) (quoting 
Coe v. Bell,
161 F.3d 320, 343
(6th Cir. 1998)). To establish that testimony 
violates this precept, Ford must show that (1) the statement was actually 

false; (2) the statement was material; and (3) the prosecution knew it was 
false. Brooks,
626 F.3d at 894
-95 (quoting Bell,
161 F.3d at 343
).        
    Ford fails to show that the prosecutor’s admission of Brue’s testimony 

and data report violated his due process rights. He has not established the 
falsity  of  Brue’s  testimony,  and  points  only  to  inconsistencies  and 
discrepancies.  For instance, Ford asserts that during Jackson’s preliminary 
examination, Brue testified that Jackson had received nine calls interacting 

with a cell tower near the crime scene area from 1:07 a.m. to 3:40 a.m., but 
at his preliminary examination, Brue testified that Jackson only received four 
outgoing calls. ECF No. 1, PageID.31. He also claims that Brue’s testimony 

was  inconsistent  with  the  discovery  he  produced,  and  he  altered  his 
testimony with respect to the period that Jackson’s cellphone connected to 
a  cell  tower  near  the  crime  scene  area.
Id.
at  PageID.34.  But  mere 

inconsistencies in a witness’s testimony do not establish the knowing use of 
false testimony by the prosecutor. Coe,
161 F.3d at 343
. The fact that a  
witness contradicts himself or changes his story also does not establish  

perjury. Malcum v. Burt,
276 F. Supp. 2d 664, 684
(E.D. Mich. 2003) (citing 
Monroe v. Smith,
197 F. Supp. 2d 753, 762
(E.D. Mich. 2001)).  Accordingly, 
Ford is not entitled to habeas relief on this claim.                      

 C. Right to Confrontation                                               
    Next, Ford asserts that he is entitled to habeas relief because the trial 

court  violated  his  confrontation  rights  by  admitting  the  victim’s  dying 
declaration(s) identifying him as the responsible individual. Ford argues that 
the statements were inadmissible testimonial hearsay and admitted without 
a proper foundation. The Michigan Court of Appeals rejected this claim,   

concluding that:                                                          
    Testimony from first responders clearly established that Beasley     
    was in extremis at the time he provided statements identifying       
    the defendant as his assailant. They testified that Beasley was      
    found kneeling in an open field. His feet and hands were bound       
    with copper wire and he looked as if he had been beaten. He had      
    multiple injuries to his face. Blood was pooling at his jaw. He had  
    been stabbed and had brain matter coming out of his ears. He         
    collapsed  when  firefighters  arrived.  Officer  Abery  Thomas      
    testified that after stating his name, Beasley just began to tell    
    what happened to him. Officer Thomas testified, “He told me that     
    he was set up. And I asked him how he was set up. And he told        
    me Marcus Ford set him up. That's who did this to him. I also        
    asked him how was he – how did he know Marcus Ford. And he           
    said  that  he  was  dating  his  mother,  Marcus  Ford's  mother.”  
    Officer Belser testified that Beasley told him that the person who   
    did this to him was in an SUV, his name was Marcus Ford, and         
    Marcus Ford was “his girlfriend's son.” Sgt. Dabrowski testified     
    that he heard Beasley say, “Marcus Ford did this to me” and spell    
    out  Marcus  Ford’s  name.  Officer  Thomas  followed  up  with      
    pointed questions and learned that Marcus Ford was a thirty-         
    year-old black male, drove an SUV, assaulted Beasley because         
    he thought Beasley assaulted his mother, had put Beasley in the      
    back of a trunk, and brought him to the field.                       

    The declarant is not required to state that he believes he is going  
    to die. Siler, 171 Mich. App. at 251,
429 N.W.2d 865
. Taken          
    together,  Beasley's  physical  condition  and  statements  to  law  
    enforcement demonstrated that he was under the conviction of         
    approaching death. Beasley’s urgency and mission to identify         
    defendant  came  out  in  his  spontaneous  narrative  to  Officer   
    Thomas of who assaulted him and how it happened. Above all           
    else, Beasley wanted law enforcement to know his assailant’s         
    name. Beasley did die some seven hours after making the dying        
    declarations  however,  defendant  presents  no  case  law           
    supporting that this passage of time diminishes the declarant’s      
    belief that death was imminent. The court’s decision to admit the    
    statements was within the range of principled outcomes.              

Ford,
2019 WL 1371175
, at *2.                                             
    The  state  court’s  decision  is  neither  contrary  to  Supreme  Court 
precedent nor an unreasonable application of federal law or the facts. First, 
to the extent that Ford claims that the admission of the victim’s statements 
was improper for lack of foundation, he merely alleges a violation of state 
law which does not entitle him to federal habeas relief. See Walker v. Harry,
462 F. App'x 543, 545
(6th Cir. 2012); Wheeler v. Jones,
59 F. App’x 23, 28
(6th Cir. 2003). Alleged trial court errors in the application of state evidentiary 

law are generally not cognizable as grounds for federal habeas relief. Estelle,
502 U.S. at 67-68
; Serra v. Michigan Dept. of Corr.,
4 F.3d 1348, 1354
(6th 
Cir. 1993). Only when an evidentiary ruling is “so egregious that it results in 

a denial of fundamental fairness” may it violate due process and warrant  
habeas relief. Bugh v. Mitchell,
329 F.3d 496, 512
(6th Cir. 2003); see also 
Wynne v. Renico,
606 F.3d 867, 871
(6th Cir. 2010) (citing Bey v. Bagley,
500 F.3d 514, 519-520
(6th Cir. 2007)); McAdoo v. Elo,
365 F.3d 487, 494
(6th Cir. 2004) (citing Estelle,
502 U.S. at 69-70
).                      
    Second,  Ford  has  not  shown  that  the  state  court’s  decision  was 
contrary  to  clearly  established  Supreme  Court  precedent.  The  Sixth 

Amendment guarantees the right of an accused in a criminal prosecution “to 
be confronted with the witnesses against him.” U.S. Const. amend. VI. The 
Confrontation Clause provides criminal defendants the right to confront and 
cross-examine witnesses against them. See, e.g., Davis v. Alaska,
415 U.S. 

308, 315
(1973). The right to confront adverse witnesses generally prevents 
a  court  from  admitting  an  out-of-court  statement  against  a  criminal 
defendant. California v. Green,
399 U.S. 149, 155-158
(1970). The Sixth   

Amendment  protections,  however,  are  not  so  broad  as  to  exclude  the 
admission of all hearsay statements against a defendant despite the inability 
to confront the declarant at trial. See Maryland v. Craig,
497 U.S. 836
, 847-

848 (1990).                                                               
    In Crawford v. Washington,
541 U.S. 36, 68
(2004), the Supreme Court 
held that out-of-court statements which are testimonial in nature are barred 

by the Confrontation Clause of the Sixth Amendment if the declarant is    
unavailable at trial and the defendant did not have a prior opportunity to 
cross-examine  the  witness,  regardless  of  whether  such  statements  are 
deemed reliable. While the Supreme Court indicated in Crawford that dying 

declarations  may  be  an  historical  exception  to  this  rule,  it  has  yet  to 
definitively rule on the status of dying declarations under the Confrontation 
Clause. See Michigan v. Bryant,
562 U.S. 344, 351
(2011); see also Walker,
462 F. App’x at 545-546
(explaining that “[i]n Crawford and again in Giles v. 
California,
554  U.S.  353
(2008),  the  Supreme  Court  hinted  that  dying 
declarations may fall within an exception to the constitutional bar against 
testimonial hearsay”); see also Woods v. Cook,
960 F.3d 295, 300
(6th Cir. 

2020); Holbrook v. Burt, No. 20-1408,
2020 WL 6440468
, at *2 (6th Cir. Sept. 
22,  2020)  (“While  the  Supreme  Court  has  acknowledged  the  dying   
declaration exception to the hearsay rule, the Court has declined to decide 

whether the Confrontation Clause incorporates that exception.”).          
    A state court cannot act unreasonably under AEDPA if the Supreme     
Court has not decided a question. See Wright v. Van Patten,
552 U.S. 120, 

125-126
(2008)  (per  curiam)  (reversing  grant  of  habeas  relief  because 
Supreme  Court  precedent  provided  “no  clear  answer  to  the  question”); 
Walker,
462 F. App’x at 545-546
; Taylor,
2011 WL 4694055
at *3 (citing    

cases).                                                                   
    Lastly,  Ford  has  not  established that the  state court  unreasonably 
applied a recognized common law exception to the Confrontation Clause.    
The Sixth Circuit has explained the two recognized exceptions:            

    Courts have recognized two key common law exceptions. The            
    first,  forfeiture  by  wrongdoing,  permits  the  introduction  of  
    statements by a witness unable to testify at trial and who was       
    “detained or  kept away  by the  means  of procurement of  the       
    defendant.”  Giles,
554  U.S.  at  359
(quotation  omitted).  This 
    exception  prevents  defendants  from  reaping  the  benefit  of     
    witness tampering or intimidation or murder. The Supreme Court       
    has  expressly  approved  this  exception  and  its  historical      
    pedigree.
Id.
at  359–61.  The  second  exception,  dying          
    declarations,  allows  the  government  to  introduce  testimonial   
    statements made by a witness who is “on the brink of death and       
    aware that he was dying.”
Id. at 358
.                                

Woods,
960 F.3d at 300
.                                                   

    Here, the admission of the victim’s statements was proper under these 
two common law principles: forfeiture by wrongdoing and dying declaration.  
First, given that the victim was unable to testify at trial due to Ford’s wrongful 
conduct, it cannot be said that the admission of his statements violated  
Ford’s confrontation rights.  Second, the state court reasonably determined 
that that the victim’s statements qualified as dying declarations. When first 

responders found the victim, he was in a critical state.  The victim was  
“significantly burned” with his hands and feet bound by copper wires, and 
badly beaten to the point that “brain matter [was] coming out his ears.” ECF 

No.  7-12,  PageID.955,  1026,  1042.  The  victim  identified  Ford  as  the 
responsible individual and provided details of the assault.
Id.
at PageID.954, 
1026,  1043.  Those  statements  were  based  upon  the  victim’s  personal 
knowledge and were made when he believed that his death was imminent      

given the nature and extent of his injuries. The Court notes that the victim 
died that same day.
Id.
at PageID.1068. Because these statements were     
properly  admitted  under  recognized  hearsay  exceptions,  Ford  fails  to 

demonstrate  that  the  admission  of  this  evidence  violated  his  right  to 
confrontation.                                                            
 D. Ineffective Assistance of Trial Counsel                              

    Next,  Ford  raises  a  litany  of  ineffective-assistance-of-trial-counsel 
claims. The state courts rejected each of Ford’s claims. The state courts’ 

decisions  did  not  unreasonably  apply  federal  law  or  contravene  clearly 
established  Supreme  Court  precedent.  The  Court  will  address  each  
argument in turn.                                                         
    On habeas corpus review, to prevail on an ineffective assistance of  
counsel claim, a petitioner must show that the state court’s denial of his claim 

was contrary to, or an unreasonable application of, Strickland v. Washington,
466 U.S. 668
(1984). Strickland established a two-prong test for claims of 
ineffective assistance of counsel: a habeas petitioner must show (1) that 

counsel’s performance was deficient, and (2) that the deficient performance 
prejudiced the defense. See
id. at 687
. Ford must overcome the strong     
presumption that counsel’s conduct falls within the wide range of reasonable 
professional assistance, and he must overcome the presumption that “the   

challenged action ‘might be considered sound trial strategy.’ ” Strickland,
466 
U.S. at 690
.                                                              
    The standard for obtaining habeas corpus relief is “ ‘difficult to meet.’ ” 

White v. Woodall,
572 U.S. 415, 419
(2014) (quoting Metrish v. Lancaster,
569 U.S. 351, 358
(2013)). In the context of an ineffective assistance of 
counsel  claim  under  Strickland,  the  standard  is  “all  the  more  difficult” 
because “[t]he standards created by Strickland and § 2254(d) are both highly 

deferential  and  when  the  two  apply  in  tandem,  review  is  doubly  so.” 
Harrington,
562 U.S. at 105
(internal citations and quotation marks omitted). 
“[T]he  question  is  not  whether  counsel’s  actions  were  reasonable”;  but 
whether  “there  is  any  reasonable  argument  that  counsel  satisfied  
Strickland’s deferential standard.” Id.                                   

 1. Failure to Present Favorable Evidence                                

    Ford  asserts  that  trial  counsel  failed  to  present  favorable  DNA 
evidence,  failed  to  investigate  alibi  and  res  gestae  witnesses,  failed  to 
investigate a Facebook alibi, failed to adequately impeach certain witnesses, 
failed to impeach the victim’s out-of-court statements, and failed to submit 

propensity evidence against Earnest Jackson.                              
    DNA Evidence. Ford asserts that trial counsel was ineffective for failing 
to argue that the presence of a third-party’s DNA on the lighter, necktie, and 

sunglasses found at the crime scene suggested that someone other than     
Ford committed the crimes. The Michigan Court of Appeals rejected this    
claim on the basis that:                                                  
    The presence of the lighter and the issue of there being no DNA      
    was  addressed  through  witness  testimony  and  argued  by         
    defense counsel in closing. Chief Patrick McNulty testified that     
    he found two plastic lighters and a metal lighter with a “finger     
    signature.” Sgt. Griffin testified that of the 48 items collected in 
    connection with this case, and the buccal swabs from defendant,      
    Jackson and Earl, no DNA was found nor conclusion reached to         
    connect  those  individuals  to  the  items  collected.  Defense     
    counsel  highlighted  this  testimony  and  made  the  connection    
    between it and the prosecutor’s failure to test items found at the   
    scene with DNA from Jackson or Cory.                                 

Ford,
2019 WL 1371175
, at *10.                                            
    The Michigan Court of Appeals’ decision was not an unreasonable      
application of federal law or the facts. While the right to effective assistance 
of counsel extends to closing arguments, counsel nonetheless has wide     

latitude  in  deciding  how  best  to  represent  a  criminal  defendant,  and 
deference  to  a  defense  counsel’s  decisions  in  his  closing  argument  is 
particularly  important  because  of  the  broad  range  of  legitimate  defense 

strategies at that stage. Yarborough v. Gentry,
540 U.S. 1, 5-6
(2003). During 
trial, Sgt. Griffin testified that while multiple items were collected from the 
crime  scene,  including  clothing,  a  coat,  lighters,  tarp  material,  ties,  and 
glasses, “[t]here [had] not been any conclusions reached as to identifying an 

individual in connection with some of the items.” ECF No. 7-14, PageID.1245. 
Considering Sgt. Griffin’s testimony, defense counsel reasonably argued at 
closing that the investigation lacked DNA evidence and that investigators 

failed to test certain items. ECF No. 7-15, PageID.1280. Notably, counsel 
also  raised  the  inference  that  the  DNA  recovered  could  be  “somebody 
else’s.”
Id.
The Court will not second guess counsel’s decision on how to 
argue evidence before the jury. Steiner v. Morrison, No. 2:20-CV-11364,
2023 WL 3129443
, at *7 (E.D. Mich. Apr. 27, 2023). Ford has not shown that 
counsel’s performance was deficient. He is not entitled to relief on this claim.  
    Failure to Investigate Witnesses. Ford claims that defense counsel was 
ineffective for failing to investigate alibi and res gestae witnesses: Isaiah 

Ford,  La’Tice  Ford,  Ms.  Stitts,  Sgt.  Steven  Ford,  Jeremy  Earl,  Marcia 
Moseley,  and  Corporal  Abery  Thomas.  ECF  No.  1,  PageID.69-70.  Ford 
raised this claim generally in his motion for relief from judgment. ECF No. 7-

18,  PageID.1352.  The  trial  court  rejected  the  ineffective  assistance  of 
counsel claim. ECF No. 7-19, PageID.1473.                                 
    “[C]ounsel has a duty to make reasonable investigations or to make a 
reasonable  decision  that  makes  particular  investigations  unnecessary.” 

Wiggins v. Smith,
539 U.S. 510, 522-23
(2003). The duty to investigate    
“includes  the  obligation  to  investigate  all  witnesses  who  may  have 
information concerning . . . guilt or innocence.” Towns v. Smith,
395 F.3d 

251, 258
(6th Cir. 2005). The state court record shows that the prosecution 
called Jeremy Earl and Abery Thomas to testify at trial and defense counsel 
cross-examined each witness. As to the other witnesses, Ford does not     
attach any affidavits explaining what each witness’s testimony would have 

been at trial, and a habeas petitioner cannot show deficient performance or 
prejudice resulting from counsel's failure to investigate if the petitioner does 
not make some showing of what evidence counsel should have pursued and    

how such evidence would have been helpful to his defense. See Tinsley v.  
Million,
399 F.3d 796, 810
(6th Cir. 2005) (“[Petitioner] has not introduced 
affidavits or any other evidence establishing what [potential witnesses] would 

have said . . . . In the absence of any evidence showing that they would have 
offered specific favorable testimony, [Petitioner] cannot show prejudice from 
counsel’s strategy recommendation not to introduce this evidence.”). To the 

extent Ford attaches Isaiah Ford’s affidavit, the statements in the affidavit do 
establish what his testimony would have been at trial, nor do the statements 
appear to aid Ford’s defense. For these reasons, he is not entitled to relief 
on this claim.                                                            

    Investigate Facebook Alibi. Ford argues that counsel was ineffective 
for failing to investigate the fact that he signed into his Facebook account at 
the time of the offense, which he claims would have established his location. 

The Michigan Court of Appeals rejected this claim because “[Ford] waived  
his right to testify, and thus the ability to introduce this evidence.” Ford,
2019 
WL 1371175
, at *10. The Court agrees, and additionally notes that while   
defense counsel has a duty to conduct a reasonable investigation into the 

facts of a defendant’s case, Strickland,
466 U.S. at 690-91
, a conclusory or 
speculative  argument  that  counsel  should  have  done  more  with  no  
supporting evidence or offer of proof is insufficient to warrant habeas relief, 

Wogenstahl v. Mitchell,
668 F.3d 307, 335-36
(6th Cir. 2012) (“[C]onclusory 
and  perfunctory  .  .  .  claims  of  [ineffective  assistance  of  counsel]  are 
insufficient  to  overcome  the  presumption  of  reasonable  professional 

assistance  and  are  insufficient  to  warrant  habeas  relief.”).  Ford  has  not 
presented any evidence to this Court or the state courts establishing that 
logging into his Facebook account would have revealed that he was at a    

location different from the area identified by cellphone expert Stan Brue. 
Counsel was not ineffective for failing to investigate this evidence.     
    Impeachment. Ford argues that counsel was ineffective for failing to 
impeach the victim’s dying declarations with the toxicology report, failing to 

adequately impeach Brue’s cellular data testimony, and failing to adequately 
impeach first responders Dabrowski, Belser, and Thomas with their written 
reports. The state courts rejected these arguments. Ford,
2019 WL 1371175
, 

at *9-10; ECF No. 7-19, PageID.1473.                                      
     “Courts  generally  entrust  cross-examination  techniques,  like  other 
matters of trial strategy, to the professional discretion of counsel.” Dell v. 
Straub,
194 F. Supp. 2d 629, 651
(E.D. Mich. 2002). “Impeachment strategy 

is a matter of trial tactics, and tactical decisions are not ineffective assistance 
of  counsel  simply  because  in  retrospect  better  tactics  may  have  been 
available.”
Id.
First, Ford argues that defense counsel was ineffective for failing to 
impeach the victim’s dying declarations with the toxicology report showing 

alcohol use before his death. The Michigan Court of Appeals ruled that even 
though the record supports the victim consumed alcohol the night he died, 
“[q]uestioning on the toxicology report would have led to re-direct as to the 

effect the injuries may have had on the lab results. Given the gruesome   
pictures and testimony, it was not unreasonable for defense counsel to limit 
further questioning on the victim’s physical state.” Ford,
2019 WL 1371175
, 
at *10. The Court agrees that defense counsel’s decision to avoid drawing 

attention to the victim’s severe injuries was a matter of sound trial strategy.   
    Second, Ford argues that defense counsel was ineffective for failing to 

adequately cross-examine cellphone expert Stan Brue with his inconsistent 
statements.  The  record  shows  defense  counsel  thoroughly  challenged 
Brue’s opinion:                                                           

    • Counsel elicited an admission that Ford lived close to the crime   
    scene.                                                               

    • Counsel elicited testimony that the cellphone companies did not    
    provide GPS information to law enforcement.                          

    • Counsel had Brue testify in depth regarding the science behind     
    cellphone data analysis, suggesting its limitations.                 
ECF No. 7-14, PageID.1226-1238. Considering counsel’s reasonable efforts  
to diminish the weight of Brue’s testimony, this Court will not second guess 

counsel’s impeachment strategy. Accordingly, counsel’s actions were not   
deficient under Strickland.                                               
    Third, Ford argues that defense counsel was ineffective for failing to 

adequately cross-examine the identification testimony of Dabrowski, Belser, 
and Thomas with their written reports. The Michigan Court of Appeals denied 
the claim, stating that:                                                  
    Defense counsel did address the omissions and inconsistencies        
    between and among the reports in the context of his theory of        
    defense. The defense trial theory was that Jackson and Cory          
    were the ones who killed Beasley. In advancing this theory, trial    
    counsel challenged the identification testimony from the above       
    first responders on the basis that what they testified to was not    
    contained in their reports and in closing statement argued that      
    these  witnesses  made  up  their  testimony  along  the  way  to    
    conform to the prosecutor's theory of the case.                      

Ford,
2019 WL 1371175
, at *9.                                             
     In this case, defense counsel made a substantial effort to cross-   
examine each of the witnesses. To the extent Ford argues that counsel     
should  have  impeached  the  witnesses  with  minor  discrepancies  or   
immaterial inconsistencies, the record shows that counsel did question the 
witnesses  on  several  inconsistencies  and  gaps  in  their  written  reports, 
including questioning the gaps in Thomas’s report, ECF 7-12, PageID.967,  
the  accuracy  of  the  victim’s  statements  recorded  in  the  reports,
Id.
at 
PageID.971,1034-45, the spelling of Petitioner’s and the victim’s names,
Id.
at PageID.1046, and the relationship between Ford and the victim,
Id.
at  
PageID.1049.  Ford  has  not  shown  that  counsel’s  actions  fell  outside 
reasonable professional judgment. See Peterson v. Smith,
510 F. App'x 356, 

362
(6th Cir. 2013) (“[P]etitioner has not demonstrated that the failure of trial 
counsel to attempt to impeach the eyewitness with minor inconsistencies,  
immaterial  discrepancies,  or  details  omitted  from  the  initial  statement  to 
police fell outside the wide range of reasonable professional assistance.”).  

     Propensity  Evidence.  Ford  argues  that  defense  counsel  was    
ineffective for failing to admit evidence that co-defendant Jackson had the 
propensity to commit the crime based on assaults that he committed in     

prison. Ford raised this argument in his motion for relief from judgment. The 
trial court denied all ineffective assistance of trial counsel claims. Ford fails 
to establish that this evidence would have been admissible impeachment    
evidence under the Michigan Rules of Evidence. Indeed, he cites no rule or 

case  law  supporting  his  position.  Conclusory  ineffective  assistance  of 
counsel claims will not support habeas relief. Wogenstahl,
668 F.3d at 335
-
36.                                                                       

 2. Failure to Follow Sound Trial Strategy                               
    Ford asserts that trial counsel was ineffective for failing to file pretrial 
motions to suppress evidence, failing to object to jury instructions on flight, 

and failing to move to dismiss based on a speedy trial violation. The Michigan 
Court of Appeals rejected each of these arguments on direct review.       
    Motions to Suppress. Ford argues that defense counsel was ineffective 

for failing to file motions to suppress cellphone evidence seized without a 
warrant and to suppress the victim’s dying declarations. The Michigan Court 
of Appeals rejected these arguments, concluding that because the cellphone 
evidence was properly seized under an incident to a lawful arrest and the 

victim’s dying declarations were properly admitted under the Michigan Rules 
of Evidence, counsel did not have a basis to file any pretrial suppression 
motions. Ford,
2019 WL 1371175
, at *2, 7. For the reasons given by the state 

trial court, and by this Court in the Confrontation Clause claim, the Court 
agrees that a motion to suppress the cellphone evidence and the dying     
declarations  would  have  been  futile.  Trial  counsel  cannot  be  deemed 
ineffective for failing to make a futile objection or meritless argument. Tackett 

v. Trierweiler,
956 F.3d 358, 375
(6th Cir. 2020); Hoffner v. Bradshaw,
622 
F.3d  487,  499
(6th  Cir.  2010).  Ford  fails  to  establish  that  counsel  was 
ineffective in this regard. Habeas corpus relief is not warranted on this claim. 
    Failure to Object. Ford argues that defense counsel was ineffective for 
failing to object to the issuance of a flight instruction. The Michigan Court of 

Appeals ruled that the flight jury instruction was proper because “there was 
direct  and  circumstantial  evidence  that  defendant  hid  after  the  alleged 
crimes,” and “counsel cannot be faulted for failing to make a futile argument.” 

Ford,
2019 WL 1371175
, at *8. The Court agrees. Jackson testified that Ford 
was staying at another individual’s home after the murder and was aware   
that the police were looking for him. ECF No. 7-13, PageID.1144-45. While 
the court of appeals also points to other evidence in the record, Jackson’s 

testimony alone would support a flight instruction. Because the instruction 
was proper, defense counsel was not at fault for failing to raise a futile 
objection. Tackett,
956 F.3d at 375
.                                      

    Motion  to  Dismiss.  Ford  next  argues  his  defense  counsel  was 
ineffective for failing to move for dismissal of the charges based upon a 
violation of his right to a speedy trial.                                 

    The Sixth Amendment guarantees a criminal defendant the right to a   
speedy trial. U.S. Const. amend. VI. Courts must balance the following four 

factors in determining whether a defendant’s constitutional right to a speedy 
trial has been violated: (1) the length of the delay; (2) the reason for the 
delay; (3) the defendant’s assertion of his or her right to speedy trial; and (4) 
prejudice to the defendant. Barker v. Wingo,
407 U.S. 514, 528
(1972). The 
Sixth Amendment’s Speedy Trial Clause does not extend to the period prior 

to arrest. United States v. Marion,
404 U.S. 307, 321
(1971); United States 
v. MacDonald,
456 U.S. 1, 7
(1982). “[U]ntil there is some delay which is 
presumptively prejudicial, there is no necessity for inquiry into the other facts 

that go into the balance.” Barker,
407 U.S. at 530
. Generally, depending on 
the nature of the charges, a delay that approaches one year is presumptively 
prejudicial. Doggett v. United States,
505 U.S. 647
, 652 n. 1 (1992).     
    The Michigan Court of Appeals applied the factors set forth in Barker 

and denied Ford’s speedy trial claim. The state court held that Barker's first 
factor – the length of the delay, in this case, 22 months – weighed in Ford’s 
favor. Because the delay was over 18 months, the Michigan Court of Appeals 

found  the  delay  presumptively  prejudicial  and  considered  the  remaining 
Barker factors.                                                           
    As to the second factor – reason for delay – the court found that this 
factor did not weigh in either parties’ favor. When considering the third factor 

– assertion of the right – the court found it weighed in favor of the prosecutor 
due to Ford’s failure to object. Finally, the fourth factor – prejudice – did not 
weigh in Ford’s favor although he argued a key witness, his mother, died  

during the pendency of his case. The court determined that the substance  
her testimony was presented through Sgt. Eby who testified that Patrick's 
text messages were sent as group text messages to both defendant and      

Jackson.  Under  the  Barker  factors,  the  court  concluded  that  Ford  was 
showed no injury from the delay and counsel was not ineffective for failing to 
move  to  dismiss  based  on the  denial  of  a  speedy trial.  Ford,
2019  WL 

1371175
, at *13.                                                          
    The state court’s application of Barker was neither contrary to nor an 
unreasonable  application  of  Supreme  Court  precedent.
28  U.S.C.  §  
2254
(d)(1). The delay, while long, was not the result of bad faith or an  

attempt to gain a tactical advantage. No prejudice resulted from the delay 
because the substance of what would have been Ms. Patrick’s testimony     
was provided to the jury. Ford fails to show any other specific prejudice from 

this delay. Because Ford was not denied his right to a speedy trial, trial 
counsel was not ineffective for failing to move for dismissal of the charges 
on speedy trial grounds. Defense counsel cannot be said to be ineffective for 
failing  to  bring  a  speedy  trial  motion  that  is  meritless.  See  Shanks  v. 

Wolfenbarger, 387 Fed. Supp. 2d 740, 750 (E.D. Mich. 2005). Ford is not   
entitled to habeas relief on this ineffective assistance of counsel claim. 

 E. Prosecutorial Misconduct                                             
    Lastly, Ford argues that prosecutor committed misconduct by failing to 
correct the perjured testimony of Sgt. Eby and Detective Rutledge regarding 

the search and seizure of his cellphone, and by failing to correct Jackson’s 
perjured testimony of his fleeing and hiding from police. The Michigan Court 
of Appeals rejected both arguments, explaining:                           

    Defendant also argues that Sgt. Eby and Detective Rutledge           
    testified falsely regarding defendant’s arrest and, the search and   
    seizure of defendant’s cellular phone, and that the prosecutor       
    committed  misconduct  by  allowing  this  perjured  testimony  to   
    stand. Again, we disagree.                                           
    Defendant's perjury argument conflates admissibility of evidence     
    with evidentiary weight. The trier of fact heard testimony from      
    Sgt. Eby and Detective Rutledge giving one version of events.        
    The  record  also  contains  video  of  the  interrogation  and  the 
    search warrant obtained on January 8. The defendant provided         
    another version of events in his brief without any support from      
    the record. He further declined to testify to his version of events. 
                              * * *                                      
    Defendant  also  contends  that  the  prosecutor  engaged  in        
    misconduct by falsely presenting evidence that defendant fled        
    and was in hiding. Defendant's support that evidence that he was     
    hiding was false is only that it came from Jackson, who defendant    
    argues was an incredible witness. The jury however was well-         
    equipped  to  determine  the  veracity  of  Jackson’s  testimony.    
    McGhee, 268 Mich. App. at 624,
709 N.W.2d 595
.                       

Ford,
2019 WL 1371175
, at *8-9.                                           
    “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)). As discussed, to  
prevail on a claim that the prosecutor relied on false testimony, a habeas 
petitioner  must  show  that  (1)  the  testimony  was  actually  false,  (2)  the 

testimony was material, and (3) the prosecutor knew the testimony was false. 
Brooks,
626 F.3d at 894
-95 (quoting Bell,
161 F.3d at 343
).               
    The Michigan Court of Appeals faithfully applied these federal tenets 

when it rejected Ford’s arguments. Ford provides no evidence that Sgt. Eby 
and Detective Rutledge perjured their testimony.  To the extent he claims 
that their testimony was inconsistent or contained misstatements of fact, 
inconsistent testimony does not establish a prosecutor's knowing use of false 

testimony. Coe,
161 F.3d at 343
. For the same reasons, Ford fails to show 
the  Jackson’s  trial  testimony  was  false  merely  because  he  provided 
untruthful  statements  to  the  police  and  lied  during  the  preliminary 

examination.  The  prosecutor  acknowledged  at  trial  that  Jackson  had 
provided prior untruthful statements, and the jury was able to weigh the  
credibility of his testimony during deliberations. Because Ford has not shown 
the testimony was actually false, he is not entitled to habeas relief on this 

claim.                                                                    
                 IV.  REQUEST FOR DISCOVERY                              
    Ford has also filed a request for discovery. ECF No. 9. Ford not shown 
an entitlement to any of that relief in light of the Court’s decision to deny his 

habeas petition. Accordingly, Ford’s request for discovery is DENIED.     
              V.   CERTIFICATE OF APPEALABILITY                          

    The Court declines to grant a certificate of appealability because Ford 
has not made a substantial showing of the denial of a constitutional right.
28 
U.S.C. § 2253
(c)(2). To obtain a certificate of appealability, an inmate must 

make a substantial showing of the denial of a constitutional right.
28 U.S.C. 
§ 2253
(c)(2). To make this showing, the applicant is required to show that 
reasonable jurists could debate whether, or agree that, the petition should 

have been resolved in a different manner, or that the issues presented were 
adequate to deserve encouragement to proceed further. Slack v. McDaniel,
529  U.S.  473,  483-84
(2000).  When  a  habeas  petition  is  denied  on 
procedural grounds, a certificate of appealability may issue only “when the 

prisoner shows, at least, that jurists of reason would find it debatable whether 
the petition states a valid claim of the denial of a constitutional right and that 
jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.”
Id. at 484
.  For the reasons stated in this opinion, 
reasonable jurists would not find this Court’s assessment of Ford’s claims to 
be debatable or wrong or that its procedural ruling was incorrect.  Therefore, 
the Court will deny a certificate of appealability.                       


                       VI.  CONCLUSION                                   
    Based upon the foregoing, IT IS ORDERED that the petition for a writ 

of habeas corpus is DENIED WITH PREJUDICE.                                
    IT  IS  FURTHER  ORDERED   that  a  certificate  of  appealability  is 
DENIED.                                                                   
    IT IS FURTHER ORDERED that the request for discovery is DENIED       

as moot.                                                                  
    IT IS SO ORDERED.                                                    
                                  s/Shalina D. Kumar                     
                                  SHALINA D. KUMAR                       
                                  United States District Judge           
Dated:  September 11, 2025