George 645669 v. Rewerts

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UNITED STATES DISTRICT COURT                           
                  WESTERN DISTRICT OF MICHIGAN                           
                       NORTHERN DIVISION                                 
                             ______                                      

WESTLY GEORGE,                                                            

              Petitioner,         Case No. 2:19-cv-201                   

v.                                 Honorable Paul L. Maloney              

RANDEE REWERTS,                                                           

              Respondent.                                                
____________________________/                                             
                            OPINION                                      
    This is a habeas corpus action brought by a state prisoner under
28 U.S.C. § 2254
. 
Petitioner Westly George is incarcerated with the Michigan Department of Corrections (MDOC) 
at the Saginaw Correctional Facility in Freeland, Saginaw County, Michigan. Following an eight-
day jury trial in the St. Joseph County Circuit Court, Petitioner was convicted of first-degree 
murder, in violation of
Mich. Comp. Laws § 750.316
; carrying a concealed weapon (CCW), in 
violation of
Mich. Comp. Laws § 750.227
; felon in possession of a firearm and felon in possession 
of ammunition, in violation of
Mich. Comp. Laws § 750
.224f; and felony firearm, in violation of
Mich. Comp. Laws § 750
.227b. On October 13, 2016, the court sentenced Petitioner as a fourth-
offense habitual offender,
Mich. Comp. Laws § 769.12
, to concurrent prison terms of 4 to 20 years 
on the CCW and felon-in-possession offenses and life imprisonment on the first-degree murder 
offense. Those sentences were to be served consecutively to a sentence of 2 years for felony-
firearm.                                                                  
    On October 7, 2019, Petitioner filed his initial habeas corpus petition, raising three grounds 
for relief. (ECF No. 1.) Ultimately, after a stay to allow Petitioner to return to state court to exhaust 
certain grounds for relief, Petitioner filed an amended petition raising the following eleven grounds 
for relief:                                                               
    I.   [Petitioner’s] Sixth Amendment right to a fair trial was violated when the 
         trial court failed to conduct an evidentiary hearing on juror misconduct to 
         determine whether any of the jurors improperly communicated with anyone 
         during deliberations or whether a tainted juror [who was dismissed during 
         deliberations and replaced with an alternate] had corrupted deliberations. 
    II.  [Petitioner] did not receive the effective assistance of counsel at trial where 
         counsel failed to request an instruction to support a lesser-included offense 
         of voluntary manslaughter.                                      
    III.  The prosecution presented legally insufficient evidence that [Petitioner] 
         committed  the  convicted  offenses[,]  thereby  denying  his  right  to  due 
         process under the federal and Michigan Constitutions, and his convictions 
         should be vacated.                                              
    IV.  The trial court abused [its] discretion by allowing the false dying declaration 
         statement into evidence because all the witnesses who said they heard the 
         false statement are inconsistent and were not [given] to the police on scene 
         the date this took place. Also Kim Schultz stated she is certain Eugene said 
         no name of any person.                                          
    V.   [Petitioner] was denied a speedy trial under the federal and Michigan 
         Constitutions, as well as by statute. U.S. Const. am. VI; Const. 1963, Art. 
         1, Section 20, MCL 768.1.                                       
    VI.  [Petitioner] was denied his Sixth Amendment right to counsel when the 
         prosecutor used testimony from an incarcerated informant that [Petitioner] 
         allegedly confessed to the crime.                               
    VII.  The prosecutor denied [Petitioner] a fair trial under the United States 
         Constitution when he argued in closing statement to the jury that defense 
         counsel was misleading the jury concerning Officer Mohney’s testimony. 
    VIII.  Defense counsel was ineffective for failing to move to suppress evidence 
         obtained from [Petitioner’s] person pursuant to a search warrant, because 
         the affidavit submitted in support of the search warrant for his person 
         contained  knowingly  false  statements  that  were  necessary  to  establish 
         probable cause to issue the warrant.                            
    IX.  [Petitioner] was denied due process because the trial court never acquired 
         subject-matter  jurisdiction  over  [Petitioner]  because  [Petitioner]  never 
         made an appearance on the information or had an attorney to appear on his 
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         behalf to enter a plea to the charges against him[, thus] denying [Petitioner] 
         procedural due process of law, and [] the effective assistance of counsel. 
    X.   Newly discovered evidence establishes that the medical examiner Elizabeth 
         Douglas testified falsely regarding the examination of [the] decedent [when 
         she testified] that “the decedent was shot in the back.” New evidence shows 
         that the decedent was shot multiple times in the chest. The prosecution 
         suppressed this evidence.                                       
    XI.  The trial court allowed the investigating officer in the case, who also 
         testified for the prosecution[,] to take a picture of a sitting juror during the 
         trial  just  before  final  instructions  and  deliberation[,  which]  denied 
         [Petitioner] due process to a fair trial under the United States Constitution. 
         Amend. [Sixth] and Fourteenth.                                  
(Am. Pet. ECF No. 19, PageID.64–83.)                                      
    In an order (ECF No. 25) entered on March 23, 2023, the Court lifted the stay and reopened 
the case, and directed Respondent to file an answer and the state court record. Respondent filed a 
response and the state court record on September 19, 2023. (ECF Nos. 28, 29.) Respondent 
contends that all of Petitioner’s claims are meritless.1 For the following reasons, the Court 

1 Respondent also argues that the claims added to Petitioner’s amended petition (habeas grounds 
IV through XI) do not relate back to the initial petition and should be dismissed as untimely, and 
that  habeas  grounds  IV  through  XI  are  procedurally  defaulted.  (ECF  No.  28.)  Respondent 
recognizes, however, that a habeas corpus petition “may be denied on the merits, notwithstanding 
the failure of the applicant to exhaust the remedies available in the courts of the State.” See
28 
U.S.C. § 2254
(b)(2). Furthermore, the Supreme Court has held that federal courts are not required 
to address a procedural default issue before deciding against the petitioner on the merits. Lambrix 
v. Singletary,
520 U.S. 518, 525
(1997) (“Judicial economy might counsel giving the [other] 
question priority, for example, if it were easily resolvable against the habeas petitioner, whereas 
the procedural-bar issue involved complicated issues of state law.”); see also Overton v. Macauley,
822  F.  App’x  341
,  345  (6th  Cir.  2020)  (“Although  procedural  default  often  appears  as  a 
preliminary question, we may decide the merits first.”); Hudson v. Jones,
351 F.3d 212
, 215–16 
(6th Cir. 2003) (citing Lambrix,
520 U.S. at 525
; Nobles v. Johnson,
127 F.3d 409
, 423–24 (5th 
Cir. 1997);
28 U.S.C. § 2254
(b)(2)). Here, rather than conduct a lengthy inquiry into exhaustion 
and procedural default, judicial economy favors proceeding directly to a discussion of the merits 
of Petitioner’s claims.                                                   
                               3                                         
concludes that Petitioner has failed to set forth a meritorious federal ground for habeas relief and 
will, therefore, deny his petition for writ of habeas corpus.             
                           Discussion                                    
I.   Factual Allegations and Procedural History                           
    The Michigan Court of Appeals described the events underlying Petitioner’s convictions 
as follows:                                                               

    [Petitioner’s] convictions arise from the shooting death of Eugene Jackson in the 
    city of Three Rivers on the night of August 20, 2015. [Petitioner], victim, and all 
    of the lay witnesses were residents of the same community. The victim’s mother, 
    Christy Jackson testified that on August 15, 2015, [Petitioner] told her that he was 
    going to kill her son because of an earlier conflict between them. Four days later, 
    [Petitioner] visited the victim’s cousin, Darinda Brumfield, and told her he was not 
    planning on attending her party the next day because he did not want any problems 
    with anyone on the day of the party.                                 
    On the day of the party [Petitioner] was seen talking to Jackson at a corner near 
    Darinda’s home shortly before witnesses heard gunshots and found Jackson on the 
    ground  with  gunshot  wounds.  [Petitioner]  was  seen  by  several  witnesses 
    contemporaneously running down a nearby alley away from the scene. Jackson told 
    some of the people who came to his aid that [Petitioner] shot him. Witnesses placed 
    Jackson into a car and rushed him to a hospital where he ultimately died from four 
    gunshot wounds.                                                      
    [Petitioner] appeared at the home of Herbert Drayton’s sister not far from the 
    shooting shortly after the shots were fired and asked Drayton for a ride home. 
    Drayton was someone whom [Petitioner] thought of as an Uncle. [Petitioner] told 
    Drayton that someone had been shooting at him and Jackson. Drayton observed 
    that the Three Rivers Police were coming down the alley and told [Petitioner] that 
    he should go to them if someone was shooting at him. The police apprehended 
    [Petitioner]. [Petitioner] told the police while being transported to jail that another 
    man was the shooter and that he had told [Petitioner] to put a knife in his pocket. 
    After [Petitioner] was taken into custody and interviewed, he told police that shots 
    had come from a vehicle that pulled up to the area while Jackson was arguing with 
    this other individual, but he refused to name this person. [Petitioner] denied that he 
    was involved in the shooting.                                        
    [Petitioner] spoke to his cellmate in the St. Joseph County Jail about his case and 
    told him that he thought he had shot Jackson around three times. [Petitioner] 
    confided to his cellmate that his main concern was the resulting gunpowder residue 
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    evidence being used against him so he had washed his hands a few times while in 
    the holding cell prior to transport to the jail. He also told the cellmate that he had 
    given the revolver used to shoot Jackson to someone he called “Uncle.”  
    Several of the victim’s relatives testified at trial. Jackson’s mother testified that 
    [Petitioner] told her prior to the shooting that he was going to kill her son. His 
    cousin, Samuel Brumfield, testified that he had dropped Jackson off at the corner 
    near his mother’s house after Jackson asked him to stop so he could get out of the 
    car after seeing [Petitioner]. Jackson’s uncle, Angelo Brown, testified that after he 
    saw [Petitioner] walking down the alley near his house wearing a blue hoodie and 
    blue jeans, shots rang out so he ran outside where he found Jackson lying on the 
    ground. He stated Jackson told him “Uncle, West Coast shot me.” Brown knew 
    [Petitioner]  to  go  by  the  name  “West  Coast.”  Other  witnesses  gave  similar 
    testimony, stating that they heard gunshots or what they thought to be firecrackers 
    and observed a man prior to and after the shooting wearing blue jeans and a hoodie 
    walking to and from the alley where the victim was shot. Additionally, forensic 
    evidence was introduced. Samples from [Petitioner’s] hands, face, and clothes were 
    analyzed for gunshot residue which was only found on [Petitioner’s] sweatshirt and 
    jeans. Steven Howard, an expert in gunsmith and gunshot residue testified that he 
    examined the bullets recovered in this case and determined that they were from a 
    revolver due to the lack of shell casings.                           
People v. George, No. 335651,
2018 WL 3244122
, at *1–2 (Mich. Ct. App. July 3, 2018). 
    Jury selection for Petitioner’s trial occurred on August 29, 2016. (Trial Tr. I, ECF No. 29-
9.) Over the course of five days, the jury heard testimony from numerous witnesses, including 
those individuals who were near the scene when the shooting occurred, law enforcement officers, 
several of Jackson’s relatives, Petitioner’s cellmate from the St. Joseph County Jail, and defense 
expert Steven Howard. (Trial Tr. II, III, IV, V, and VI, ECF Nos. 29-10, 29-11, 29-12, 29-13, 29-
14.) On September 8, 2016, the jury returned a guilty verdict. (Trial Tr. VIII, ECF No. 29-16, 
PageID.2575.) Petitioner appeared before the trial court for sentencing on October 13, 2016. (ECF 
No. 29-17.)                                                               
    Petitioner, with the assistance of counsel, appealed his convictions and sentences to the 
Michigan Court of Appeals. Petitioner raised the following issues in his counseled brief: (1) the 
trial court erred by not conducting an evidentiary hearing regarding juror misconduct; (2) counsel 
                               5                                         
was ineffective for failing to request a lesser-included voluntary manslaughter instruction; and (3) 
the prosecution did not present sufficient evidence to support Petitioner’s convictions. (ECF No. 
29-20, PageID.2868.) In a pro per supplemental brief, Petitioner raised the following issues: (1) 
the trial court abused its discretion in allowing the dying declaration into evidence; (2) the 
prosecutor committed misconduct by presenting perjured testimony from Angelo Brown and 

Walter Nelson concerning the dying declaration; (3) counsel was ineffective for taking a case that 
she could not handle without associating with an attorney who was competent to handle a first-
degree murder trial; and (4) the trial court erred by limiting Petitioner’s expert witness’s testimony 
and not allowing his data to be entered into evidence. (Id., PageID.2808.) In an opinion entered on 
July 3, 2018, the court of appeals affirmed Petitioner’s convictions and sentences. George,
2018 
WL 3244122
, at *1. The Michigan Supreme Court denied Petitioner’s application for leave to 
appeal on February 4, 2019. See People v. George,
922 N.W.2d 351
(Mich. 2019). 
    As noted supra, Petitioner filed his initial § 2254 petition in this Court on October 7, 2019. 
(ECF No. 1.) On December 31, 2019, the Court ordered Respondent to file an answer to the 

petition. (ECF No. 4.) Before Respondent’s answer was due, Petitioner filed a motion to stay these 
proceedings to permit him to exhaust state court remedies with respect to additional habeas 
grounds.  (ECF  No. 7.)  Petitioner  identified  three  additional  issues  he  intended  to  exhaust: 
prosecutorial misconduct during closing arguments; a due process violation when the trial judge 
permitted the courtroom deputy to take a picture of a juror during trial; and denial of a speedy trial. 
(Pet’r’s Mot., ECF No. 7, PageID.15.) The Court granted Petitioner’s requested stay but, as 
provided in Palmer v. Carlton,
276 F.3d 777, 781
(6th Cir. 2002), the Court required Petitioner to 
file his motion for relief from judgment pursuant to Michigan Court Rule 6.500 within 30 days of 

                               6                                         
the stay order and further required Petitioner to return to the Court to file an amended petition 
including his newly exhausted claims within 30 days of the Michigan Supreme Court’s decision 
denying relief on Petitioner’s appeal. (ECF No. 11, PageID.34.)           
    Petitioner asked the Court for an extension of the initial 30-day period to permit him to add 
an additional issue based on new evidence showing that the prosecutor committed misconduct 

when he argued that the victim was shot in the back when, in fact, the victim was shot in the chest. 
(Pet’r’s Mot. for Extension, ECF No. 12, PageID.36.) The Court concluded that the “new 
evidence” did not warrant an extension; however, because the deadline had passed in the interim, 
the Court allowed Petitioner 15 days from the date of the order to file his motion for relief from 
judgment. (ECF No. 13, PageID.40.)                                        
    Petitioner subsequently filed a second motion for an extension of time to file a motion for 
relief from judgment. (ECF No. 14.) In an order (ECF No. 16) entered on May 4, 2021, the Court 
granted Petitioner that relief. Meanwhile, Petitioner filed his Rule 6.500 motion on or about 
October 14, 2020. (ECF No. 29-18.) Petitioner expanded the scope of his motion for relief from 

judgment beyond the issues he had identified for this Court. (Pet’r’s Brief in Support of Mot. for 
Relief from J., ECF No. 19-1, PageID.99–102.) He added an issue regarding the prosecutor’s 
allegedly improper use of testimony from a “jailhouse informant.” He added an issue regarding 
defense counsel’s ineffective assistance for failing to object to the affidavit submitted in support 
of the search warrant. He added a due process claim regarding the trial court’s lack of jurisdiction, 
and he added an issue regarding the prosecutor’s suppression of the victim’s death certificate. 
    In an order entered on April 13, 2021, the trial court denied Petitioner’s Rule 6.500 motion. 
(ECF No. 29-19.) The court of appeals and supreme court denied Petitioner’s applications for leave 

                               7                                         
to appeal on September 30, 2021, and April 5, 2022, respectively. (ECF Nos. 29-21, PageID.2980; 
29-23, PageID.3242.) By letter dated May 30, 2022, 55 days after the Michigan Supreme Court 
denied leave to appeal, Petitioner asked the Court what he should do next. (ECF No. 17.) Without 
then addressing the tardiness of Petitioner’s return to this Court, the Court directed the Clerk to 
send Petitioner a copy of the form petition and advised Petitioner to file an amended petition along 

with a motion to amend. (ECF No. 18.) Petitioner filed his amended § 2254 petition—without a 
motion seeking leave to amend—49 days later. (ECF No. 19.)                
II.  AEDPA Standard                                                       
    The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions 
are  given  effect  to  the  extent  possible  under  the  law.  Bell  v.  Cone,
535  U.S.  685
,  
693–94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated 
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on 
the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or 
involved an unreasonable application of, clearly established federal law as determined by the 
Supreme Court of the United States; or (2) resulted in a decision that was based upon an 

unreasonable determination of the facts in light of the evidence presented in the state court 
proceeding.”
28 U.S.C. § 2254
(d). “Under these rules, [a] state court’s determination that a claim 
lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the 
correctness of the state court’s decision.” Stermer v. Warren,
959 F.3d 704
, 721 (6th Cir. 2020) 
(internal quotation marks omitted) (quoting Harrington v. Richter,
562 U.S. 86, 101
(2011)). This 
standard is “intentionally difficult to meet.” Woods v. Donald,
575 U.S. 312
, 316 (2015) (internal 
quotation marks omitted).                                                 

                               8                                         
    The AEDPA limits the source of law to cases decided by the United States Supreme Court.
28 U.S.C. § 2254
(d). In determining whether federal law is clearly established, the Court may not 
consider the decisions of lower federal courts. Williams v. Taylor,
529 U.S. 362
, 381–82 (2000); 
Miller v. Straub,
299 F.3d 570
, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal 
law” does not include decisions of the Supreme Court announced after the last adjudication of the 

merits in state court. Greene v. Fisher,
565 U.S. 34
, 37–38 (2011). Thus, the inquiry is limited to 
an examination of the legal landscape as it would have appeared to the Michigan state courts in 
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller 
v. Stovall,
742 F.3d 642, 644
(6th Cir. 2014) (citing Greene, 565 U.S. at 38). 
    A federal habeas court may issue the writ under the “contrary to” clause if the state court 
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it 
decides a case differently than the Supreme Court has done on a set of materially indistinguishable 
facts. Bell,
535 U.S. at 694
(citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a 
habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in 

federal  court  was  so  lacking  in  justification  that  there  was  an  error  well  understood  and 
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575 
U.S. at 316 (quoting Harrington,
562 U.S. at 103
).                        
    Determining whether a rule application was unreasonable depends on the rule’s specificity. 
Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching 
outcomes in case-by-case determinations.” Yarborough v. Alvarado,
541 U.S. 652, 664
(2004). 
“[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in 


                               9                                         
their adjudication of a prisoner’s claims.” White v. Woodall,
572 U.S. 415, 424
(2014) (internal 
quotation marks omitted).                                                 
    The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 
F.3d 1131, 1134
(6th Cir. 1998). A determination of a factual issue made by a state court is 
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and 

convincing evidence.
28 U.S.C. § 2254
(e)(1); Davis v. Lafler,
658 F.3d 525, 531
(6th Cir. 2011) 
(en banc); Lancaster v. Adams,
324 F.3d 423, 429
(6th Cir. 2003); Bailey v. Mitchell,
271 F.3d 
652, 656
(6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate 
courts, as well as the trial court. See Sumner v. Mata,
449 U.S. 539
, 546–547 (1981); Smith v. 
Jago,
888 F.2d 399
, 407 n.4 (6th Cir. 1989).                              
    Section 2254(d) limits the facts a court may consider on habeas review. The federal court 
is not free to consider any possible factual source. The reviewing court “is limited to the record 
that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 
U.S. 170, 180
(2011). “If a review of the state court record shows that additional fact-finding was 

required under clearly established federal law or that the state court’s factual determination was 
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the 
underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain,
576 
U.S. 305
(2015), and Panetti v. Quarterman,
551 U.S. 930, 954
(2007)).    
    If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s 
claim was never ‘adjudicated on the merits’ by a state court,
28 U.S.C. § 2254
(d),”—for example, 
if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer,
959 F.3d 


                              10
at 721. Then, the petitioner’s claim is reviewed de novo.
Id.
(citing Maples v. Stegall,
340 F.3d 
433, 436
(6th Cir. 2003)).                                                
III.  Discussion                                                          
    A.   Ground III—Sufficiency of the Evidence                          
    As his third ground for relief, Petitioner contends that the prosecution presented insufficient 
evidence to support the jury’s verdict, therefore violating Petitioner’s due process rights. (Am. 

Pet., ECF No. 19, PageID.81.) The court of appeals rejected Petitioner’s argument, first applying 
the following standard for reviewing Petitioner’s claim:                  
    In reviewing a claim of insufficient evidence, this Court reviews the evidence de 
    novo in the light most favorable to the prosecution; the test being whether a rational 
    trier of fact could have found that the essential elements of the crime were proven 
    beyond a reasonable doubt. People v. Wolfe,
440 Mich. 508, 515
;
489 N.W.2d 748
amended on other grounds
441 Mich. 1201
(1992); People v. Hutner,
209 Mich. 
    App. 280, 282
;
530 N.W.2d 174
(1995).                                
George,
2018 WL 3244122
, at *3. Although the court of appeals cited state authority, the standard 
applied is identical to the constitutional “sufficiency of the evidence” standard set forth in Jackson 
v. Virginia,
443 U.S. 307
(1979), which requires the court to determine “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.”
Id. at 319
. 
    The state court’s application of the correct standard eliminates the possibility that the 
resulting decision is “contrary to” clearly established federal law. As the Supreme Court stated in 
Williams v. Taylor:                                                       
    The word “contrary” is commonly understood to mean “diametrically different,” 
    “opposite in character or nature,” or “mutually opposed.” Webster’s Third New 
    International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests 
    that the state court’s decision must be substantially different from the relevant 
    precedent of this Court. The Fourth Circuit’s interpretation of the “contrary to” 
    clause accurately reflects this textual meaning. A state-court decision will certainly 
                              11                                         
    be contrary to our clearly established precedent if the state court applies a rule that 
    contradicts the governing law set forth in our cases.                
Williams v. Taylor,
529 U.S. at 405
. The Court went on to offer, as an example of something that 
is not “contrary to” clearly established federal law, the following:      
    [A] run-of-the-mill state-court decision applying the correct legal rule from our 
    cases  to  the  facts  of  a  prisoner’s  case  would  not  fit  comfortably  within 
    § 2254(d)(1)’s  “contrary  to”  clause.  Assume,  for  example,  that  a  state-court 
    decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland 
    [v. Washington,
466 U.S. 668
(1984),] as the controlling legal authority and, 
    applying that framework, rejects the prisoner’s claim. Quite clearly, the state-court 
    decision  would  be  in  accord  with  our  decision  in  Strickland  as  to  the  legal 
    prerequisites for establishing an ineffective-assistance claim, even assuming the 
    federal court considering the prisoner’s habeas application might reach a different 
    result applying the Strickland framework itself. It is difficult, however, to describe 
    such  a  run-of-the-mill  state-court  decision  as  “diametrically  different”  from, 
    “opposite in character or nature” from, or “mutually opposed” to Strickland, our 
    clearly established precedent. Although the state-court decision may be contrary to 
    the federal court’s conception of how Strickland ought to be applied in that 
    particular case, the decision is not “mutually opposed” to Strickland itself. 
Id. at 406. Therefore, because the Michigan Court of Appeals applied the correct standard—here 
Jackson rather than Strickland—Petitioner can only overcome the deference afforded state court 
decisions if the determination of regarding Petitioner’s sufficiency of the evidence challenge is an 
unreasonable application of Jackson or if the state court’s resolution was based on an unreasonable 
determination of the facts. 28 U.S.C. 2254(d).                            
    The Jackson 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
. Witness credibility remains the province 
of the jury, see Herrera v. Collins,
506 U.S. 390
, 401–02 (1993), and an attack on witness 
credibility constitutes a challenge to the quality, but not the sufficiency of the government’s 
evidence. Martin v. Mitchell,
280 F.3d 594, 618
(6th Cir. 2002). The habeas court need only 
                              12                                         
examine the evidence supporting the conviction, in the light most favorable to the prosecution, 
with specific 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).     
    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,
658 
F.3d at 534
(quoting United States v. Oros,
578 F.3d 703, 710
(7th Cir. 2009)). 
    Here, the court of appeals followed Jackson’s command. The court of appeals first set forth 
the elements required to prove first-degree murder. See George,
2018 WL 3244122
, at *3. The 
court of appeals then considered the evidence in a light that favored the prosecution: 
    The  strongest  evidence  of  premeditation  in  this  case  came  from  statements 
    attributed to [Petitioner] himself. Five days before the shooting, [Petitioner] told 
    the  victim’s  mother  he  was  going  to  kill  her  son.  Despite  her  comments  to 
    [Petitioner] that everyone would “lose” should [Petitioner] go through with his plan 
    to kill her son, [Petitioner] reiterated his intent to kill the victim by telling her “All 
    right, well, you [sic] walk around with that rest in peace G Baby tee shirt and then 
    you gonna know I wasn’t playin.” Additionally, two other witnesses also testified 
    that [Petitioner] made comments on the night before the shooting that he was not 
    going to be attending Darinda’s party the next day because he didn’t want any 
    trouble with anybody at the party.                                   
    Based on the testimony given by Ms. Jackson and the two other witnesses regarding 
    [Petitioner’s] comments, a jury could have reasonably inferred that [Petitioner’s] 
    contemplated the murder for several days prior to the shooting. Thus contrary to 
    [Petitioner’s] argument, the jury’s reasonable inference that [Petitioner’s] actions 
    were premeditated was supported by evidence on the record.           
    [Petitioner] also asserts that because there were no witnesses to the shooting there 
    was no direct evidence presented to show that [Petitioner] was the shooter and the 
                              13                                         
    evidence  proving  his  identity  as  the  shooter  was  merely  circumstantial.  He 
    misapprehends the law. “Circumstantial evidence and reasonable inferences arising 
    therefrom can sufficiently establish the elements of a crime.” People v. Schultz,
246 
    Mich. App. 695, 702
;
635 N.W.2d 491
(2001). There was significant testimony 
    placing [Petitioner] near the alley where the victim was found prior to and after the 
    shooting. The deceased named him as his murderer. Numerous witnesses also 
    testified to seeing [Petitioner] fleeing the area wearing a blue sweatshirt or hoodie 
    carrying a gun. [Petitioner] was arrested in the area wearing a blue sweatshirt. The 
    hooded sweatshirt later tested positive for gunshot residue. Additionally, while 
    being held in the St. Joseph County Jail, [Petitioner] told his cell mate that he killed 
    Jackson, using a revolver to shoot him around three times.           
    Viewing the evidence and reasonable inferences in the light most favorable to the 
    prosecution, there was sufficient evidence to convince a jury beyond a reasonable 
    doubt that [Petitioner] committed first-degree premeditated murder.  
George,
2018 WL 3244122
, at *3.                                           
    In his § 2254 petition, Petitioner essentially relies upon the arguments that he raised in—
and that were rejected by—the court of appeals. To prevail on his sufficiency claim now, Petitioner 
must show that the inferences urged by the appellate court are unreasonable. Notably, “[t]he facts 
as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant to
28 U.S.C. § 2254
(e)(1).” Shimel v. Warren,
838 F.3d 685, 688
(6th Cir. 2016). Petitioner can 
overcome that presumption with clear and convincing evidence; he has not. He does not offer any 
evidence to show that the court of appeals’ factual determinations are unreasonable on the record. 
    In Coleman v. Johnson,
566 U.S. 650, 655
(2012), the Supreme Court provided some 
guidance with respect to the distinction between a reasonable inference and mere speculation. 
Based on the Court’s analysis, a reasonable inference is an inference that a rational factfinder could 
make from the facts. That is hardly an earth-shattering revelation, and it is not a particularly 
onerous burden. The Court went so far as to say, “the only question under Jackson is whether [a] 
finding is so insupportable as to fall below the threshold of bare rationality.”
Id. at 656
. 
                              14                                         
    Petitioner has offered nothing from which this Court could conclude that the court of 
appeals’ inferences were irrational. Certainly, one could interpret the underlying events differently 
and reach the opposite conclusions, but that does not render the court of appeals’ conclusions and 
inferences irrational. Petitioner, therefore, has failed to meet his burden. 
    Moreover, Petitioner essentially invites this Court to reweigh the witnesses’ credibility and 

resolve all conflicts and make all inferences in his favor. Under Jackson, a habeas court is not 
required to sift through the evidence and place it on one side of the scale or the other for the purpose 
of assessing whether the jurors’ estimation of the balance is correct. Instead, the Court is only 
required to look at the evidence in a light that favors the prosecution and assess whether a rational 
factfinder could conclude that Petitioner is guilty beyond a reasonable doubt considering that 
evidence. It is up to the jury to decide issues of credibility, to decide between conflicting accounts, 
and draw inferences—so long as the inferences are reasonable. See Herrera, 506 U.S. at 401–02; 
Martin,
280 F.3d at 618
. Petitioner’s invitation turns the Jackson standard on its head. 
    In sum, Petitioner has failed to demonstrate that the court of appeals’ determination that 

there was sufficient evidence to support Petitioner’s first-degree murder conviction is contrary to, 
or an unreasonable application of, clearly established federal law. Petitioner, therefore, is not 
entitled to relief on habeas ground III.                                  
    B.   Ground V—Speedy Trial Violation                                 
    As his fifth ground for relief, Petitioner asserts that his speedy trial rights under the federal 
and state constitutions, as well as under state law, were violated. (Am. Pet., ECF No. 19, 
PageID.65.) Petitioner was arrested on August 20, 2015, and his trial began on August 29, 2016. 
(ECF No. 29-19.)                                                          

                              15                                         
    In Brown v. Romanowski,
845 F.3d 703
(6th Cir. 2017), the Sixth Circuit Court of Appeals 
reviewed the clearly established federal law with respect to the constitutional requirement for a 
speedy trial:                                                             
    The  Sixth  Amendment  guarantees  in  relevant  part  that  “[i]n  all  criminal 
    prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. 
    Const.  amend.  VI.  These  rights  apply  to  the  states  through  the  Fourteenth 
    Amendment. Klopfler v. North Carolina,
386 U.S. 213, 223
(1967). The purpose 
    of the speedy-trial guarantee is to protect the accused against oppressive pre-trial 
    incarceration, the anxiety and concern due to unresolved criminal charges, and the 
    risk that evidence will be lost or memories diminished. Doggett v. United States,
505 U.S. 647, 654
(1992); United States v. Loud Hawk,
474 U.S. 302, 312
(1986); 
    United States v. MacDonald,
456 U.S. 1
, 7–8 (1982); Barker v. Wingo,
407 U.S. 
    514
, 532–33 (1972); United States v. Marion,
404 U.S. 307, 320
(1971); United 
    States v. Ewell,
383 U.S. 116, 120
(1966). The sole remedy for a violation of the 
    speedy-trial right is dismissal of the charges. See Strunk v. United States,
412 U.S. 
    434
, 439–40 (1973); United States v. Brown,
169 F.3d 344, 348
(6th Cir. 1999). 
    In Barker, the Supreme Court established a four-factor test for determining whether 
    a defendant has been denied the constitutionally guaranteed right to a speedy trial. 
    Barker held that a court must consider (1) the length of the delay, (2) the reason for 
    the  delay,  (3)  the  defendant’s  assertion  of  his  right,  and  (4) prejudice  to  the 
    defendant. Barker,
407 U.S. at 530
. No one factor is dispositive. Rather, they are 
    related  factors  that  must  be  considered  together  with  any  other  relevant 
    circumstances.
Id. at 533
.                                           
Brown,
845 F.3d at 712
. The Barker Court acknowledged that its test was a flexible balancing test 
and, thus, “necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Barker, 
407 U.S. at 529–530. The flexibility of the test has significant implications for this Court’s review 
under the AEDPA standard. “‘The more general the rule at issue’—and thus the greater the 
potential for reasoned disagreement among fair-minded judges—‘the more leeway [state] courts 
have in reaching outcomes in case-by-case determinations.’” Renico v. Lett,
559 U.S. 766, 776
(2010) (quoting Yarborough,
541 U.S. at 664
).                             
    In the Michigan state courts, the right to a speedy trial is guaranteed by the United States 
constitution, U.S. Const. amend VI; the Michigan constitution, Mich. Const. 1963 art.1, § 20; state 
                              16                                         
statute,
Mich. Comp. Laws § 768.1
; and court rule, Mich. Ct. R. 6.004(D). People v. Cain,
605 
N.W.2d 28, 39
(Mich. Ct. App. 1999); People v. McLaughlin,
672 N.W.2d 860, 867
(Mich. Ct. 
App. 2003). The Michigan state courts apply the Barker four-factor test “to determine if a pretrial 
delay violated a defendant’s right to a speedy trial[,]” whether the speedy trial right at issue arises 
from federal or state law. Cain,
605 N.W.2d at 39
(citing People v. Collins,
202 N.W.2d 769
(Mich. 

1972)).2                                                                  
    To the extent that the state constitutional, statutory, and rule guarantees relating to a speedy 
trial  require  anything  more  than  clearly  established  federal  law  requires,  those  additional 
requirements  are  purely  matters  of  state  law.  Petitioner’s  challenges  to  the  trial  court’s 
determinations with regard to state law are not cognizable on habeas review. Estelle v. McGuire,
502 U.S. 62
, 67–68 (1991) (stating “it is not the province of a federal habeas court to re-examine 
state-court determinations on state-law questions.”).                     
    Petitioner raised his speedy trial claim in his Rule 6.500 motion, and the trial court rejected 
it. The trial court first set forth the following relevant procedural history: 

    [Petitioner] was arrested on August 20, 2015. Preliminary exam was held on 
    September 8, 2015. The information was filed on September 9, 2015. There was no 
    arraignment as the Court has adopted a local administrative order that eliminated 
    arraignment for a defendant represented by an attorney and he was given a copy of 
    the information pursuant to MCR 8.112(B). Various status conferences occurred 
    during which the evidence and need for further testing was addressed and then the 

2 Although the state courts apply the clearly established federal law, the Barker test, to evaluate 
“speedy trial” claims, they apply it a little differently than the federal courts. The state courts shift 
the burden of proof with respect to prejudice based on the length of the delay, drawing the line at 
18 months. Cain,
238 Mich. App. at 112
. The federal courts, however, eschew such a “bright-line 
rule.” Brown,
845 F.3d at 717
. Instead, the federal “courts must conduct a functional analysis of 
the right in the particular context of the case.”
Id.
(internal quotation marks omitted) (quoting 
United States v. Ferreira,
665 F.3d 701, 709
(6th Cir. 2011)); see Barker,
407 U.S. at 522
. This is 
a difference between the federal and state applications of the test, but the difference does not render 
the state court’s application unreasonable or contrary to Barker. See, e.g., Brown v. Bobby,
656 
F.3d 325
, 329–330 (6th Cir. 2011) (concluding that Ohio’s use of a 270-day rule was not “contrary 
to” Barker).                                                              
    appointment of an expert for the defense was granted. The adjournments [were] at 
    the request of the defense or with their approval for the most part. [Petitioner] was 
    warned that these adjournments would not count towards the 180 [day] rule as set 
    out in MCR 6.004(C). The parties stipulated to move the final status conference to 
    August 10, 2016 and the trial began on August 29, 2016.              
(ECF No. 29-19, PageID.2763.)                                             
    The trial court then set out the relevant law, noting that the Michigan Supreme Court had 
adopted the four-part test set forth in Barker. (Id., PageID.2763–2764.) The court then discussed 
those four factors as follows:                                            
    Length of the Delay[.] “Although not determinative of a speedy trial claim, length 
    of a delay is a factor that triggers an investigation of the speedy trial issue.” Where 
    there has been a delay of at least six months after a defendant’s arrest, further 
    investigation into a claim of denial of the right to a speedy trial is necessary. For a 
    delay of 18 months or more, prejudice to the defendant is presumed and the burden 
    shifts to the prosecution to rebut the presumption. Where the delay following a 
    defendant’s arrest is less than 18 months, the defendant bears the burden of showing 
    prejudice by reason of the delay.                                    
    Reasons for the Delay. Regarding the second prong—reasons for delay—the court 
    balances the conduct of both the prosecution and the defendant. “The reasons for 
    delay are examined by [the court] and each period of delay is assigned to either the 
    prosecutor or the defendant. Ordinarily, “delays caused by defense counsel are 
    properly attributed to the defendant, even where counsel is assigned[,]” because 
    “assigned counsel generally are not state actors for purposes of a speedy-trial 
    claim.” However, it is possible that an assigned counsel’s delay could be charged 
    to the state if a breakdown in a state’s public defender system caused the delay. 
    “[I]f  the  defendant  has  not  contributed  to  the  delay,  a  period  of  otherwise 
    unexplained inaction in excess of 180 days in the prosecution of a charge pending 
    against an inmate is per se a violation of the statute, unless the people make an 
    affirmative showing of exceptional and unavoidable circumstances which hamper 
    the  normally  efficient  functioning  of  the  trial  courts.”  “Where  a  delay  is 
    unexplained, it is charged to the prosecution.” “Although delays inherent in the 
    court  system,  e.g.,  docket  congestion,  ‘are  technically  attributable  to  the 
    prosecution, there are given a neutral tint and are assigned only minimal weight in 
    determining whether a defendant was denied a speedy trial.” Delays occasioned by 
    the prosecution’s successful pursuit of an interlocutory appeal are “taken out of the 
    calculation,” and therefore, are not attributable to either party when determining 
    whether a defendant’s right to a speedy trial has been violated.     
    Assertion of the Right[.] A defendant’s assertion of his or her right to a speedy trial 
    is the third factor the court must consider in determining whether the right to a 
    speedy trial has been violated. While failure to assert the right to a speedy trial does 
    not automatically constitute a waiver of the right, it is strong evidentiary support 
    for the conclusion that the defendant’s right was not violated. In People v. Missouri,
100  Mich.  App.  310,  322
(1980),  the  Court  of  Appeals  concluded  that  the 
    defendants’ assertion of the right to a speedy trial two weeks before trial and nearly 
    30 months after indictment was strong evidence that the delay had not caused a 
    serious deprivation of their right to a speedy trial.                
    Resulting Prejudice[.] The final inquiry into a claim of a speedy trial violation is 
    whether the defendant experienced any prejudice as a result of the delay. There are 
    two types of prejudice a defendant may experience: (1) prejudice to his or her 
    person; and (2) prejudice to his or her defense. “Prejudice to his [or her] person 
    would take the form of oppressive pretrial incarceration leading to anxiety and 
    concern.” “Prejudice to his [or her] defense might include key witnesses being 
    unavailable.” “Impairment of defense is the most serious, ‘because the inability of 
    a defendant to adequately prepare his [or her] case skews the fairness of the entire 
    system.’” General allegations of possible prejudice (e.g., witness[es’] memories 
    fade, financial burden) are insufficient. Rather, a defendant must “specifically 
    argue[] howe the delay caused him [or her] prejudice.”               
    Here [Petitioner] did assert his request for a speedy trial but then agreed to the need 
    for further delays in order for his defense to prepare for trial and to obtain experts. 
    He does not meet the burden of showing how his defense was prejudiced by a delay 
    in the trial that he stipulated to on several occasions. The murder occurred on 
    August 20, 2015 and the trial began August 29, 2016. All of the delays were 
    understandable, and no prejudice has been shown that would have affected the 
    outcome.                                                             
(Id., PageID.2764–2765 (internal citations omitted).)                     
    Because the trial court applied the four-factor Barker test, there is no question that the court 
applied a standard that is not contrary to clearly established federal law. To prevail, Petitioner must 
show that the court applied that standard unreasonably. He has not made that showing.  
    Here,  Petitioner’s  trial  began  a  little  more  than  one  year  after  his  arrest.  “A  delay 
approaching one year is presumptively prejudicial and triggers application of the remaining three 
factors.” Maples v. Stegall,
427 F.3d 1020, 1026
(6th Cir. 2005) (citing Doggett,
505 U.S. at 652
n.1). However, the critical element is prejudice to the defendant.3 Certainly, the trial court’s 

3 The Barker Court identified three specific categories of harm that might accrue to a pretrial 
detainee because of undue delay in proceeding with trial: “(i) . . . oppressive pretrial incarceration; 
conclusion  that  Petitioner  failed  to  demonstrate  that  his  defense  was  prejudiced  is  not 
unreasonable.                                                             
    In sum, Petitioner fails to identify any flaw in the trial court’s rejection of his speedy trial 
claim beyond the fact that he disagrees with the result. Because Petitioner has failed to show that 
the state court’s decision is an unreasonable application of Barker, he is not entitled to relief with 

respect to habeas ground V.                                               
    C.   Grounds Asserting Trial Court Error                             
         1.   Ground I—Juror Misconduct                                  
    In his first ground for relief, Petitioner argues that the trial court denied him a fair trial by 
“fail[ing] to conduct an evidentiary hearing on juror misconduct to determine whether any of the 
jurors improperly communicated with anyone during deliberations or whether a tainted juror had 
committed misconduct.” (Am. Pet., ECF No. 19, PageID.64.)                 
    The record reflects that prior to final jury instructions being given, the parties asked to 
speak to the trial judge because a reporter had overheard one of the jurors talking about the case at 
a local coffee shop. (Trial Tr. VII, ECF No. 29-15, PageID.2412.) The trial judge conducted a 
hearing regarding the matter in chambers. The reporter indicated that he had heard the juror in 

question  “discussing  gunshot  residue,  and,  specifically,  the—the  Lava  soap  that—that  was 
discussed yesterday by the expert.” (Id., PageID.2413.) The reporter noted that such information 
was not “in [a] report, so [he did not] think she got it from the media.” (Id.) The reporter said that 
he saw the juror walk into the courtroom and he went, “Crap, I got to say something.” (Id., 
PageID.2414.)                                                             


(ii) . . . anxiety and concern of the accused; and (iii) . . . the defense [could] be impaired.” Barker,
407 U.S. at 532
(footnote omitted).                                       
    After the juror at issue was identified, she was brought back to the trial judge’s chambers. 
(Id., PageID.2423.) The trial judge asked the juror if she had been at the coffee shop in question 
that morning, and the juror responded that she had been. (Id.) The juror said that the individual she 
had a conversation with asked her “what [she] was doing and [the juror] said [she] was on jury 
duty.” (Id.) The juror denied that they had talked about the facts of the case. (Id., PageID.2424.) 

    After the juror was excused from chambers, the court asked counsel about their feelings 
regarding the issue. (Id., PageID.2426.) The prosecutor noted that it was concerning, and that he 
did not think that “the reporter would have any reason to make something up.” (Id.) Petitioner’s 
attorney did not think that what the juror allegedly said, according to the reporter, was “so 
damaging to either side.” (Id., PageID.2428.) At that time, the parties did not request that the juror 
be excused.                                                               
    After proceedings resumed in the courtroom, the trial judge informed the juror that the 
parties and the court had held a conversation with one of the jurors, and that the juror “confirmed 
or indicated that she only let a person know that she was on jury duty and that she couldn’t discuss 

it any further than that and that no information was divulge—was disclosed and that she didn’t get 
any  information  from  anyone  else  that  will  interfere  with  her  ability  to  be  a  juror.”  (Id., 
PageID.2429.) Counsel then gave closing arguments, the court instructed the jury, and the jury 
began deliberations.                                                      
    The next day, the court indicated that another issue regarding the juror who had been 
questioned the previous day had come up. (Trial Tr. VIII, ECF No. 29-16, PageID.2545.) The 
court indicated that the owner of the coffee shop had called the court “indicating that she overheard 
your conversation, that she had confirmed it with others that you actually talked about the facts of 
the case, you talked about the GSR, you talked about Lava soap, and that you already indicated 
that you had your mind made up before you even began to hear instructions or final arguments.” 
(Id.) The juror denied that the conversation went that way and suggested that the owner was 
“making all that up.” (Id., PageID.2546.) The court then asked counsel to see him in chambers. 
(Id.)                                                                     
    After the court went back on the record, the court indicated that while in chambers, he and 

counsel had called the owner of the coffee shop, who reiterated what she heard. (Id., PageID.2547.) 
Specifically, the owner told the court that “she overheard the conversation between a lady that she 
knows as ‘Jen’ with short hair and glasses talking to another lady, talking about Lava soap, talking 
about GSR, and talking about the fact that she already knew what she was going to say when she 
went in.” (Id.) The court noted that although the juror was denying that conversation, there were 
now two witnesses stating that they heard “discussion about specifics of the case. There’s no other 
person that would have heard about the Lava soap and the GSR, because it wasn’t in the newspaper 
or in the news accounts.” (Id.) The court noted that to “ensure the integrity” of trial, the juror would 
be excused, and deliberations would start again with a new juror. (Id.)   

    The court then called the jury in and informed them that the juror had been excused. (Id., 
PageID.2551.) The court told the jury that the juror had been excused because she had been 
overheard discussing the case in public. (Id.)                            
    Subsequently, Petitioner’s counsel made a motion for a mistrial based on juror misconduct. 
(Id., PageID.2559.) The prosecutor stated that he was “appalled” by the juror’s conduct, noting 
that he thought the juror had “lied to the Court on two separate occasions.” (Id.) He did not believe 
that it amounted to a mistrial because alternate jurors were available. (Id., PageID.2560.) The court 
denied the motion for a mistrial, noting that it did not appear that the juror “had conversations with 
anyone that brought information in,” and that she did not bring anything extraneous into the jury 
room. (Id., PageID.2561.) The court noted that it would confirm that with the jurors once 
empaneled again. (Id.)                                                    
    After the full jury was assembled, the court instructed them to “start as if it was day one, 
as the first minute in there. . . . Whatever happened before is null and void.” (Id., PageID.2566.) 
The court asked the juror if the excused juror had brought any outside information into the jury 

room. (Id., PageID.2567.) Two jurors responded that they did not believe she had. (Id.) The court 
then excused the jury to begin deliberations at 11:12 a.m. (Id.) The jury indicated that it had 
reached a verdict around 3:11 p.m. (Id., PageID.2574.)                    
    A criminal defendant is constitutionally entitled to a trial “by an impartial jury.” See U.S. 
Const. amend. VI; see also Irvin v. Dowd,
366 U.S. 717, 722
(1961) (noting that the “right to jury 
trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”). 
This guarantee reflects the requirement that a jury arrive at a verdict solely “based upon the 
evidence developed at the trial.” Turner v. Louisiana,
379 U.S. 466, 472
(1965) (quoting Irvin,
366 U.S. at 722
).                                                         

    Due process, however, “does not require a new trial every time a juror has been placed in 
a potentially compromising situation.” Smith v. Phillips,
455 U.S. 209, 2017
(1982). “When a trial 
court is presented with evidence that an extrinsic influence has reached the jury which has a 
reasonable potential for tainting that jury, due process requires that the trial court take steps to 
determine what the effect of such extraneous information actually was on that jury.” Ewing v. 
Horton,
914 F.3d 1027, 1030
(6th Cir. 2019) (quoting Nevers v. Killinger,
169 F.3d 352, 373
(6th 
Cir. 1999), abrogated on other grounds by Harris v. Stovall,
212 F.3d 940
(6th Cir. 2000)). 
    The Supreme Court has “long held that the remedy for allegations of juror partiality is a 
hearing in which the defendant has the opportunity to prove actual bias.” Smith,
455 U.S. at 215
. 
Such a hearing, referred to as a Remmer4 hearing, must be held once a defendant raises a “colorable 
claim of extraneous influence.” See United States v. Owens,
426 F.3d 800, 805
(6th Cir. 2005). To 
assert a colorable claim, a defendant “must do more than simply raise the possibility of bias.”
Id.
Petitioner raised this claim on direct appeal, and the court of appeals rejected it. The court 
of appeals first noted that denial of a motion for mistrial based on juror misconduct is reviewed 

for an abuse of discretion, and that a new trial is not warranted unless substantial harm was caused 
to the defendant. See George,
2018 WL 3244122
, at *2. The court of appeals then stated: 
    First, there is little evidence that the juror herself was exposed to any extraneous 
    influences and therefore had no extraneous information to share with the jury as a 
    whole. The court was informed that the juror was heard discussing the case at a 
    local restaurant by a reporter and through a phone call from the restaurant owner. 
    Although the juror was overheard talking about the case at a local restaurant by 
    both informants, neither witness indicated that they observed anyone else talking 
    to the juror about the facts of the case, responding to the juror, or offering her any 
    verbal input. Without evidence of outside influence upon the excused juror there 
    could be no extraneous influence on the jury due to the juror’s misconduct. 
    [Petitioner] further argues that the trial court should have conducted an evidentiary 
    hearing to determine whether the jury had been subjected to any outside influences 
    due to the juror’s misconduct. The court asked the entire jury whether the dismissed 
    juror had brought any information in from outside the jury room and two jurors 
    verbally replied “no.” The court reasonably relied on the affirmative denial of the 
    two and the silence of the other ten to reasonably conclude that the jurors were not 
    subjected to any improper outside influences from the excused juror. Thus there 
    was no need for the additional step of an evidentiary hearing once the court 
    determined from the other jurors that the excused juror did not bring in any 
    extraneous influences.                                               
    [Petitioner] has also not demonstrated that there was a substantial possibility that 
    the jury’s verdict was affected. People v. Budzyn,
456 Mich. 77, 89
;
566 N.W.2d 
    229
(1997). “[J]urors are presumed to be impartial until the contrary is shown.” 
    People v. Miller,
482 Mich. 540, 550
;
759 N.W.2d 850
(2008). Once the trial court 
    was notified a second time about the juror’s misconduct the court interrupted the 
    jury deliberations and promptly dismissed her and replaced her with an alternate 
    instructing the jury that they were to start deliberations anew. It is well settled that 
    jurors are presumed to follow the trial court’s instructions. People v. Petri,
279 
    Mich. App. 407, 414
;
760 N.W.2d 882
(2008). Therefore it is reasonable to presume 
    that the verdict that the jury returned was not based on any of the discussions that 

4 Remmer v. United States,
347 U.S. 227
(1954).                           
    the jury had during the 3½ hours of deliberations that occurred when the dismissed 
    juror was still on the jury panel. [Petitioner] has also not provided any evidence to 
    overcome this presumption.                                           
George,
2018 WL 3244122
, at *2.                                           
    A  state  court’s  findings  regarding  juror  partiality  are  questions  of  fact  that  are 
presumptively correct under
28 U.S.C. § 2254
(d). See Smith,
455 U.S. at 218
(citing Sumner v. 
Mata,
449 U.S. 539, 551
(1981)). Petitioner offers no evidence, much less clear and convincing 
evidence, to overcome this presumption. As the court of appeals noted, two of the jurors indicated 
verbally that the excused juror had not brought any extraneous influences into the jury room before 
she was dismissed. As set forth supra, a trial court is required to hold a Remmer hearing regarding 
juror partiality only after a defendant raises a “colorable claim of extraneous influence” that does 
more than “simply raise the possibility of bias.” See Owens,
426 F.3d at 805
. Petitioner did not 
raise a colorable claim of extraneous influence before the trial court—he did not present any 
evidence to suggest that a non-juror had influenced the juror who was ultimately dismissed, and 
that the juror tainted the rest of the jury with such influence. Moreover, as the court of appeals 
noted, the jury was instructed to begin deliberations anew with the alternate juror, and a jury is 

presumed to follow its instructions. See Weeks v. Angelone,
528 U.S. 225, 234
(2000). Petitioner 
has offered no evidence to suggest that the jury’s verdict was based on anything other than the 
discussions the jury had during the hours of deliberation that occurred after one juror was 
dismissed and replaced with the alternate juror.                          
    In sum, Petitioner has not demonstrated that the court of appeals’ rejection of this claim is 
contrary to, or an unreasonable application of, clearly established federal law. Accordingly, 
Petitioner is not entitled to relief with respect to habeas ground I.     
         2.   Ground IV—Admission of Dying Declaration                   
    As his fourth ground for relief, Petitioner contends that the trial court abused its discretion 
by allowing the “false dying declaration” into evidence “because all the witnesses who said they 
heard the false statement are inconsistent, and were not giv[en] to the police on scene the date this 
took place.” (Am. Pet., ECF No. 19, PageID.83.) Petitioner also asserts that “Kim Schultz stated 

she is certain Eugene said no name of any person.” (Id.)                  
    Petitioner raised this claim on direct appeal in his pro per supplemental brief. The court of 
appeals rejected it, noting that the victim’s dying declaration was admitted pursuant to the hearsay 
exception set forth in Rule 804(b)(2) of the Michigan Rules of Evidence. See George,
2018 WL 
3244122
, at *5. The court of appeals concluded that the victim’s dying declaration met the 
exception, stating:                                                       
    The victim made statements to various friends and family members representing 
    that he had been shot by [Petitioner] and indicating that he needed to get to a 
    hospital and did not want to die. Hence there was evidence that the victim believed 
    his death to be impending. He ultimately succumbed to his wounds and was, 
    therefore unavailable to testify. Accordingly, the trial court properly admitted the 
    victim’s statements as dying declarations under MRE 804(b)(2). The fact that the 
    recitations of what the victim said are inconsistent does not negate the fact that the 
    victim’s  statements  meet  the  threshold  requirements  to  be  admitted  as  dying 
    declarations. Furthermore, [Petitioner’s] arguments regarding inconsistency go to 
    weight to be given the testimony, not their admissibility. People v. Hintz,
62 Mich. 
    App. 196, 203
;
232 N.W.2d 228
(1975).                                
George,
2018 WL 3244122
, at *5.                                           
    The extraordinary remedy of habeas corpus lies only for a violation of the Constitution.
28 
U.S.C. § 2254
(a). As the Supreme Court explained in Estelle, an inquiry whether evidence was 
properly admitted or improperly excluded under state law “is no part of the federal court’s habeas 
review of a state conviction [for] it is not the province of a federal habeas court to re-examine 
state-court determinations on state-law questions.” 502 U.S. at 67–68. The decision of the state 
courts on a state-law issue is binding on a federal court. See Wainwright v. Goode,
464 U.S. 78, 
84
(1983); see also Bradshaw v. Richey,
546 U.S. 74, 76
(2005) (“We have repeatedly held that a 
state court’s interpretation of state law, including one announced on direct appeal of the challenged 
conviction, binds a federal court sitting in habeas corpus.”). Thus, the court of appeals’ conclusion 
that the trial court properly admitted the victim’s dying declaration under MRE 804(b)(2) is 
axiomatically correct.                                                    

    It is possible that an evidentiary ruling—even a ruling that is axiomatically correct under 
state law—still violates due process. State-court evidentiary rulings can rise to the level of due 
process violations if they offend some principle of justice so rooted in the traditions and conscience 
of our people as to be ranked as fundamental. Seymour v. Walker,
224 F.3d 542, 552
(6th Cir. 
2000) (quotation marks omitted); accord Coleman v. Mitchell,
268 F.3d 417, 439
(6th Cir. 2001); 
Bugh v. Mitchell,
329 F.3d 496, 512
(6th Cir. 2003). This approach accords the state courts wide 
latitude in ruling on evidentiary matters. Seymour,
224 F.3d at 552
(6th Cir. 2000). 
    Further, under the AEDPA, the court may not grant relief if it would have decided the 
evidentiary question differently. The court may only grant relief if Petitioner is able to show that 

the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme Court 
on a question of law or if the state court decided the evidentiary issue differently than the Supreme 
Court did on a set of materially indistinguishable facts. Sanders v. Freeman,
221 F.3d 846, 860
(6th Cir. 2000); see also Stewart v. Winn,
967 F.3d 534
, 538 (6th Cir. 2020) (stating that, to obtain 
habeas relief based on an allegedly improper evidentiary ruling, a petitioner must identify “a 
Supreme Court case establishing a due process right with regard to the specific kind of evidence 
at issue”). Petitioner, however, has not met this difficult standard.     
    Petitioner’s challenge to the admission of the dying declaration does raise the specter of a 
violation of 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. See Crawford v. Washington,
541 U.S. 36, 59
(2004). 
    Clearly, the victim was unavailable to testify, and Petitioner had no prior opportunity to 
cross-examine the victim. However, Petitioner cannot demonstrate that the admission of the 
victim’s dying declaration violated clearly established federal law. In Crawford, the Supreme 
Court noted, in dicta, that “[a]lthough many dying declarations may not be testimonial, there is 
authority for admitting even those that clearly are . . . . We need not decide in this case whether 
the Sixth Amendment incorporates an exception for testimonial dying declarations.”
Id.
at 56 n.6. 

Four years later, the Supreme Court recognized dying declarations as one of “two forms of 
testimonial statements . . . admitted at common law even though they were unconfronted”) Giles 
v. California,
554 U.S. 353, 358
(2008). Indeed, in 2011, the Court reiterated its suggestions 
regarding dying declarations set forth in Giles and Crawford. See Michigan v. Bryant,
562 U.S. 
344
, 351 n.1 (2011). In any event, the Supreme Court has never held that dying declarations are 
inadmissible as violative of the Sixth Amendment’s Confrontation Clause. See Williams,
529 U.S. 
at 412
(explaining that the phrase “clearly established Federal law, as determined by the Supreme 
Court of the United States,” as used in § 2254(d)(1), “refers to the holdings, as opposed to the 
dicta,” of Supreme Court decisions).                                      
    Given  the  lack  of  Supreme  Court  precedent  regarding  whether  admission  of  dying 
declarations violates the Confrontation Clause, the state courts’ rejection of this claim cannot have 
been contrary to, or an unreasonable application of, clearly established federal law. See Carey v. 
Musladin,
549 U.S. 70, 76
(2006) (“Given the lack of holdings from this Court [on the issue at 
hand], it cannot be said that the state court ‘unreasonably applied clearly established Federal 

law.’”). Petitioner, therefore, is not entitled to relief on habeas ground IV. 
         3.   Ground IX—Subject-Matter Jurisdiction                      
    As his ninth ground for relief, Petitioner asserts that he was denied due process because the 
trial court never acquired subject-matter jurisdiction over him. (Am. Pet., ECF No. 19, PageID.73.) 
According to Petitioner, the trial court never acquired jurisdiction because Petitioner “never made 
an appearance on the information, or had an attorney to appear on his behalf to enter a plea to the 
charges against him.” (Id.) Petitioner also contends that this amounted to ineffective assistance of 
counsel. (Id.) The Court considers underlying due process claim below and will consider his 
related ineffective assistance claim infra in Part E.4.                   
    Petitioner raised this claim in his Rule 6.500 motion and the trial court rejected it. First, as 

part  of  Petitioner’s  speedy  trial  claim,  the  trial  court  noted  that  it  “has  adopted  a  local 
administrative order [(LAO)] that eliminated arraignment for a defendant represented by an 
attorney and he was given a copy of the information pursuant to MCR 8.112(B).” (ECF No. 29-
19, PageID.2763.) The trial court summarily dismissed Petitioner’s subject-matter jurisdiction 
challenge, stating: “As stated earlier this court does not hold an arraignment after the bindover 
pursuant to its LAO approved by the Supreme Court and allowed under the Court Rules. The 
information is filed immediately as reflected in transcripts.” (Id.)      
    The determination of whether a particular state court is vested with jurisdiction under state 
law and is the proper venue to hear a criminal case is a “function of the state courts, not the federal 
judiciary.” Wills v. Egeler,
532 F.2d 1058, 1059
(6th Cir. 1976). Moreover, “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). 
     The Michigan Supreme Court has described the concept of subject matter jurisdiction as 
follows: “Subject matter jurisdiction concerns a court’s abstract power to try a case of the kind or 

character of the one pending and is not dependent on the particular facts of the case.” People v. 
Lown,
794  N.W.2d  9,  23
(Mich.  2011)  (internal  quotation  marks  and  emphasis  omitted). 
“Michigan circuit courts are court of general jurisdiction and unquestionably have jurisdiction over 
felony cases.” Id.; see also Mich. Const. of 1963, art. 6, §§ 1 & 13;
Mich. Comp. Laws §§ 600.151
, 
600.601, and 767.1. Any purported violation of these state jurisdictional laws does not provide a 
basis for federal habeas relief. See Estelle, 502 U.S. at 67–68.          
    Moreover, to the extent Petitioner takes issue with the fact that he was not arraigned on the 
information, thereby violating due process, the Supreme Court has long held that due process “does 
not require the state to adopt any particular form of procedure, so long as it appears that the accused 

has had sufficient notice of the accusation and an adequate opportunity to defend himself.” 
Garland v. Washington,
232 U.S. 642, 645
(1914). Thus, under this test, “it cannot for a moment 
be maintained that the want of formal arraignment deprived the accused of any substantial right, 
or in any wise changed the course of trial to his disadvantage.”
Id.
Here, Petitioner offers no basis to challenge the St. Joseph County Circuit Court’s subject 
matter jurisdiction over his criminal prosecution and no basis to conclude that his challenge to 
subject matter jurisdiction might rise to the level of a federal constitutional violation. The record 
establishes that at the end of Petitioner’s preliminary hearing, the district court advised Petitioner 
that he would “be bound over to Circuit Court on the charges as they appear in the Felony 
Information that [was] provided [to] your attorney.” (ECF No. 29-2, PageID.726.) Petitioner 
provides no argument to suggest that he did not receive sufficient notice of the charges and did not 
have  an  adequate  opportunity  to  defend  himself.  Accordingly,  because  Petitioner  cannot 
demonstrate that the trial court’s rejection of this claim was contrary to, or an unreasonable 
application of, clearly established federal law, he is not entitled to relief with respect to the due 

process aspect of habeas ground IX.                                       
         4.   Ground XI—Picture of Juror                                 
    As his final habeas ground, Petitioner contends that the trial court violated his due process 
rights by allowing the investigating officer “to take a picture of a sitting juror during the trial just 
before final instructions and deliberation.” (Am. Pet., ECF No. 19, PageID.77.) 
    Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, stating: 
    The officer took a picture of a juror to show to a person who had called the court 
    indicating that a juror had been in a coffee shop talking about the case. The picture 
    was needed to show to the person to determine which juror it was in order to 
    question them. The defense and prosecution were aware that a call had been 
    received and of what was going to be done. The issue regarding the juror was 
    addressed by the Court of Appeals who found it was proper.           
    [Petitioner] does not explain how the process used to determine which juror was 
    the one not following the rules so they could be excused somehow violates his due 
    process rights.                                                      
(ECF No. 29-19, PageID.2768.)                                             
    The record reflects that prior to final jury instructions being given, the parties asked to 
speak to the trial judge because a reporter had overheard one of the jurors talking about the case at 
a local coffee shop. (Trial Tr. VII, ECF No. 29-15, PageID.2412.) The trial judge conducted a 
hearing regarding the matter in chambers. The investigating officer took a picture of the juror to 
determine which juror was at issue. (Id., PageID.2421.) The trial judge then directed that the juror 
be brought into chambers to be questioned.                                
    Afterwards, when the court resumed trial and right before the judge was poised to give 
final instructions, one juror asked “what the picture was for.” (Id., PageID.2430.) The judge 
confirmed that the picture was to discern which of the jurors had to be called in for the in-chambers 
hearing. (Id.) The juror asked if the picture was deleted “from [the officer’s] cloud and his sim,” 
and the court responded, “I’m sure he will.” (Id.) The court then said that the picture would be 

destroyed,  and  the  officer  indicated  that  it  had  already  been  done  before  they  entered  the 
courtroom. (Id.)                                                          
    As noted above, the trial court denied Petitioner’s claim on the basis that Petitioner had not 
explained in his Rule 6.500 motion how the process used to identify the juror violated Petitioner’s 
due process rights. Petitioner fails to correct that deficiency in his § 2254 petition. Petitioner simply 
does not explain, and the Court does not discern, how the officer’s taking a photo of the juror 
violated Petitioner’s due process rights in any way. Because Petitioner has not established that the 
trial court’s rejection of this claim is contrary to, or an unreasonable application of, clearly 
established federal law, Petitioner is not entitled to relief with respect to habeas ground XI. 

    D.   Violation of Right to Counsel                                   
    In his sixth ground for relief, Petitioner takes issue with the prosecutor’s use of testimony 
“from an incarcerated informant that [Petitioner] allegedly confessed to the crime.” (Am. Pet., 
ECF No. 19, PageID.67.) Petitioner appears to suggest that his right to counsel was violated when 
these statements were elicited. (Id.)                                     
    Petitioner raised this claim in his Rule 6.500 motion, and the trial court denied it, stating: 
    Here [Petitioner] argues that his right to counsel was violated when his attorney 
    was not present for the questioning of a cellmate by the police regarding statements 
    [Petitioner]  made  to  him  admitting  to  the  crime.  [Petitioner]  argues  that  his 
    incriminating statements should have been suppressed because Vshaun Brown 
    elicited these statements in the absence of [Petitioner’s] attorney after Brown 
    agreed to cooperate with police. This does not match with the evidence that came 
    out at trial. There was no indication that the police had contacted Mr. Brown before 
    the statements were made to get him to solicit the statements. In addition, the jury 
    was instructed on the danger involved in relying [on] such witnesses and to be wary 
    when doing so.                                                       
    [Petitioner’s] argument is without merit that his attorney should have been present 
    in the cell with him when the comments took place or when Mr. Brown spoke to 
    the police regarding them.                                           
(ECF No. 29-19, PageID.2765–2766.)                                        
    The Sixth Amendment right to counsel is violated when the state, through government 
agents, surreptitiously question a criminal defendant in the absence of counsel and those statements 
are admitted into evidence at trial. See Maine v. Moulton,
474 U.S. 159
, 176–77 (1985). For 
example, in Moulton, the state recorded conversations between the defendant and the cooperating 
co-defendant and admitted those statements as evidence at trial. See
id.
The Sixth Amendment, 
however, does not prohibit the admission of statements made by a defendant to a jailhouse 
informant who is placed in close proximity to the defendant but makes no overt effort to initiate a 
conversation regarding the crime with the defendant. See Kuhlmann v. Wilson,
477 U.S. 436, 456
(1986). Notably, “[w]hen a suspect considers himself in the company of cellmates and not officers, 
the coercive atmosphere is lacking.” Illinois v. Perkins,
496 U.S. 292, 296
(1990) (citing Miranda 
v. Arizona,
384 U.S. 436, 449
(1966)).                                    
    Thus, “the Sixth Amendment is not violated whenever—by luck or happenstance—the 
State obtains incriminating statements from the accused after the right to counsel has attached.” 
Moulton,
474 U.S. at 176
. Merely arguing that an informant reported incriminating statements to 
law enforcement does not demonstrate a violation of the Sixth Amendment right to counsel. See 
Kuhlmann,
477 U.S. at 459
. Instead, a defendant must show that the police and the informant took 
some action, beyond listening, deliberately designed to elicit incriminating statements. See
id.
At trial, Vshaun Brown testified that Petitioner became his cellmate in early September of 
2015. (Trial Tr. VI, ECF No. 29-14, PageID.2201–2202.) Brown sent a note to the prosecutor on 
November 29, 2015, asking to speak to authorities regarding Petitioner’s case. (Id., PageID.2201.) 
Brown testified that three or four days after he and Petitioner became cellmates, Petitioner started 
talking to Brown about his case. (Id., PageID.2202.) Brown testified that Petitioner was concerned 
that gunshot residue had been found on his person after arrest. (Id.) Petitioner also told Brown 
“about the number of times he thought he had shot Eugene Jackson, which [Petitioner said was] 

three.” (Id., PageID.2203.) Petitioner also told Brown about a spot of blood on his hoodie that 
would test positive as the victim’s blood. (Id., PageID.2204.) Petitioner talked to Brown about the 
type of gun he used, and that he had handed off the gun to someone Petitioner called “Uncle.” (Id., 
PageID.2204–2205.) Petitioner also told Brown that he had washed his hands in the holding cell, 
before they were tested for gunshot residue. (Id., PageID.2205.) Brown denied talking to anyone 
about Petitioner’s case prior to sending the letter to the prosecutor’s office. (Id., PageID.2206.) 
    Upon review of the record, the Court concludes that Petitioner has failed to show that 
Vshaun  Brown  was  acting  as  a  government  agent  when  Petitioner  made  his  incriminating 
statements to Brown. Nor has Petitioner shown that Brown acted with government agents to take 

action deliberately designed to elicit those statements. Brown’s testimony indicates that he and 
Petitioner had only been cellmates for a few days when Petitioner made his statements, and that 
Brown reached out to the prosecutor’s office a few months after those statements were made. 
Accordingly, Petitioner’s case presents a situation where the State obtained the incriminating 
statements “by luck or happenstance.” Moulton,
474 U.S. at 176
. As set forth supra, obtaining 
incriminating statements in such a manner after the right to counsel has attached does not violate 
the Sixth Amendment.                                                      
    Petitioner has not demonstrated that the trial court’s rejection of this claim is contrary to, 
or an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not 
entitled to relief with respect to habeas ground VI.                      
    E.   Grounds Asserting Prosecutorial Misconduct                      
    In  his  seventh  ground  for  relief,  Petitioner  contends  that  the  prosecutor  committed 

misconduct during closing arguments when he argued to the jury “that defense counsel was 
misleading the jury concerning Officer Mohney’s testimony.” (Am. Pet., ECF No. 19, PageID.69.) 
Moreover,  as  part  of  habeas  ground  X,  Petitioner  asserts  that  the  prosecution  committed 
misconduct by suppressing evidence showing that the victim was shot multiple times in the chest. 
(Id., PageID.75.)                                                         
    For a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the 
petitioner must demonstrate that the prosecutor’s improper conduct “so infected the trial with 
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643
(1974)). “[T]he 
touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the 

prosecutor.”  Smith  v.  Phillips,
455  U.S.  209,  219
(1982).  In  evaluating  the  impact  of  the 
prosecutor's misconduct, a court should consider the extent to which the claimed misconduct 
tended to mislead the jury or prejudice the petitioner. See United States v. Young,
470 U.S. 1
, 11– 
12 (1985). The Supreme Court has described the Darden standard as “a very general one, leaving 
courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’” Parker v. 
Matthews,
567 U.S. 37, 48
(2012). The Parker Court rejected an attempt to graft any additional 
requirements on the “very general” Darden standard.                       
    “Claims  of  prosecutorial  misconduct  are  reviewed  deferentially  on  habeas  review.” 
Millender v. Adams,
376 F.3d 520, 528
(6th Cir. 2004) (citing Bowling v. Parker,
344 F.3d 487, 
512
(6th Cir. 2003)). Indeed, “[t]he Supreme Court has clearly indicated that the state courts have 
substantial  breathing  room  when  considering  prosecutorial  misconduct  claims  because 
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle 
v. Bagley,
457 F.3d 501, 516
(6th Cir. 2006) (quoting Donnelly,
416 U.S. 637, 645
). Thus, in order 
to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the 

state court’s rejection of his prosecutorial misconduct claim “was so lacking in justification that 
there was an error well understood and comprehended in existing law beyond any possibility for 
fairminded disagreement.” Parker,
567 U.S. at 47
(internal quotation marks omitted). 
         1.   Closing Arguments                                          
    In habeas ground VII, Petitioner contends that the prosecutor committed misconduct during 
closing arguments when he argued to the jury “that defense counsel was misleading the jury 
concerning Officer Mohney’s testimony.” (Am. Pet., ECF No. 19, PageID.69.) Petitioner raised 
this claim in his Rule 6.500 motion, and the trial court rejected it, stating: 
    The [p]rosecutor made a statement about counsels’ arguments in closing. Defense 
    counsel objected and the Court instructed the jury that the attorneys’ comments are 
    not evidence and told them to only follow the evidence that came from the witness 
    stand. It is improper for a prosecutor to say that defense counsel is intentionally 
    misleading the jury because that type of argument effectively states that defense 
    counsel does not believe [his] own client. People v. Unger,
278 Mich. App. 210
. 
    [Petitioner]  also  asserts  that  the  prosecutor  in  his  questioning  of  the  officer 
    regarding whether he found any other leads to other suspects objectionable because 
    they were only proves the point that the answers the witness gives are the evidence 
    not the questions and the jury is presumed to follow their instructions. 
    The one-time objectionable characterizing of defense counsel was addressed and 
    the other questions were not objected to at the time, defense counsel cross[-
    ]examined the witnesses also. I do not see where these limited instances meet the 
    standard of error which [is] needed to overturn the verdict.         
(ECF No. 29-19, PageID.2766.)                                             
    The record reflects that the following exchange occurred during the prosecutor’s rebuttal 
argument:                                                                 
    Ms. Davis misrepresented what Officer Mohney testified to when he talked about 
    suspects in this case. It[’]s investigators[’] jobs to investigate tips and leads. He 
    testified that yes, he investigated all of them. And through that investigation, not a 
    single other suspect was able to be determined other than Westly George. 
    MS. DAVIS: Your Honor, I would object to him saying that I misled. I don’t recall 
    stating anything about Detective Mohney and the suspect issue that he is referring 
    to.                                                                  
    THE COURT: Okay. The jurors will remember the testimony. Again . . . 
    MS. DAVIS: Thank you.                                                
    THE COURT: . . . the statements of the attorneys are not evidence. The evidence 
    is what came from the witness stand.                                 
(Trial Tr. VII, ECF No. 29-15, PageID.2522.)                              
    Upon review of the record, the Court concludes that Petitioner has failed to demonstrate 
that this statement by the prosecutor induced the jury “to trust the Government’s judgment rather 
than its own view of the evidence.” Young, 470 U.S. at 18–19. Moreover, as the trial court noted, 
the jury was instructed to consider only the evidence admitted during trial, and that counsel’s 
closing arguments did not constitute evidence. A jury is presumed to follow its instructions. See 
Weeks,
528 U.S. at 234
. Petitioner has not demonstrated that this sstatement by the prosecutor 
during rebuttal argument “so infected the trial with unfairness” that Petitioner was denied due 
process.                                                                  
    In sum, Petitioner has not demonstrated that the trial court’s rejection of this claim is 
contrary to, or an unreasonable application of, clearly established federal law. Petitioner, therefore, 
is not entitled to relief with respect to habeas ground VII.              
         2.   Suppression of Evidence                                    
    As part of habeas ground X, Petitioner suggests that the prosecutor committed misconduct 
by suppressing evidence that the victim was shot multiple times in the chest. (Am. Pet., ECF No. 
19, PageID.75.) Petitioner suggests that this evidence is “newly discovered” and that the medical 
examiner, Elizabeth Douglas, testified falsely that the victim was shot in the back. (Id.) The Court 
considers Petitioner’s claim regarding prosecutorial misconduct below, and considers his “newly 
discovered evidence” claim infra in Part III.G.                           
    Petitioner has attached a copy of the death certificate to his amended § 2254 petition. (ECF 
No. 19-1, PageID.218.) The death certificate does state that the victim died from “[m]ultiple 

gunshot wounds to chest.” (Id.) During trial, Dr. Elizabeth Douglas testified that during the 
autopsy, she was able to determine that the victim was shot four times: “in the right lower back, 
kind of the left lower back, the left forearm, and the left leg.” (Trial Tr. V, ECF No. 29-13, 
PageID.2096.) Dr. Douglas testified that the shot to the right lower back inflicted the lethal injuries 
because it caused perforations of the lung and left “quite a bit of blood within the left—or I’m 
sorry—the right chest cavity.” (Id.) Dr. Douglas indicated that the lethal shot left an exit wound 
on the victim’s chest. (Id., PageID.2100.) She also noted that it was a perforating wound, meaning 
no bullet fragments were left in the body. (Id., PageID.2101.)            
    Petitioner’s prosecutorial misconduct claim implicates Brady v. Maryland,
373 U.S. 83
(1963). In Brady, the Supreme Court held that “suppression by the prosecution of evidence 
favorable to an accused . . . violates due process where the evidence is material either to guilt or 
to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 
87
. There are three components to finding a Brady violation: “[t]he evidence at issue must be 
favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence 
must have been suppressed by the State, either willfully or inadvertently; and prejudice must have 
ensued.”  Strickler  v.  Greene,
527  U.S.  263
,  281–82  (1999).  Prejudice  (and  materiality)  is 
established by a showing that “there is a reasonable probability that, had the evidence been 
disclosed to the defense, the result of the proceeding would have been different.”
Id.
at 280 
(quoting United States v. Bagley,
473 U.S. 667, 682
(1985)); see also Cone v. Bell,
556 U.S. 449
, 
469–70  (2009).  A  reasonable  probability  equates  to  a  “probability  sufficient  to  undermine 
confidence in the outcome.” Bagley,
473 U.S. at 682
.                      
    Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, stating: 
    [Petitioner] asserts that the “new evidence” was just obtained last fall and is the 
    death certificate of the decedent. [Petitioner] argues that the testimony of the 
    medical examiner was perjured because she said he was shot in the back and the 
    death certificate states cause of death was “multiple gun shot wounds to chest” and 
    that this must mean he was shot in the front. What [Petitioner] did not share is that 
    the death certificate was signed by Dr. John Robertson not Dr. Elizabeth Douglas 
    who conducted the autopsy and who testified. It is clear that the decedent was shot 
    multiple times in the chest and the Dr. that conducted the autopsy testified that the 
    bullets entered the chest from the back. There was no perjury.       
    . . .                                                                
    The prosecutor did not “suppress” the death certificate. It is a public record. It was 
    not favorable to the defense and kept from them. It states just what the medical 
    examiner testified to. The decedent died from gun shot wounds to the chest. The 
    medical examiner provided more detail as to where the entry was made, the damage 
    done to the organs in the chest and the cause of death from those injuries. 
(ECF No. 29-19, PageID.2768.)                                             
    Petitioner offers nothing to indicate that the trial court strayed from clearly established 
federal law in rejecting this assertion of prosecutorial misconduct. Accepting the trial court’s 
determination as correct, Petitioner cannot show that the prosecution violated Brady in any way. 
The death certificate was a public record and, therefore, was not suppressed by the prosecution. 
Moreover, nothing in the death certificate is favorable or exculpatory to Petitioner’s defense. Dr. 
Douglas provided more context regarding the decedent’s death at trial. As explained supra, the 
gunshot wounds entered the victim from the back and left exit wounds on the front of his body, 
including his chest.                                                      
    The trial court’s rejection of this claim of prosecutorial misconduct was not contrary to, or 
an unreasonable application of, clearly established federal law. Petitioner, therefore, is not entitled 
to relief with respect to the prosecutorial misconduct aspect of habeas ground X. 
    F.   Grounds Asserting Ineffective Assistance of Counsel             
    In his second ground for relief, Petitioner contends that trial counsel was ineffective for 

“fail[ing]  to  request  an  instruction  to  support  a  lesser[-]included  offense  of  voluntary 
manslaughter.” (Am. Pet., ECF No. 19, PageID.80.) In ground IV, Petitioner avers that counsel 
was ineffective for not moving to suppress evidence obtained from Petitioner’s person “pursuant 
to a search warrant, because the affidavit submitted in support of the search warrant for his person 
contained knowingly false statements that were necessary to establish probable cause to issue the 
warrant.” (Id., PageID.71.) Finally, as part of his fifth ground for relief, Petitioner suggests that 
counsel was ineffective for not challenging the trial court’s jurisdiction over Petitioner and for not 
entering a plea to the charges on Petitioner’s behalf. (Id., PageID.73.)  
         1.   Standard of Review                                         
    In Strickland v. Washington,
466 U.S. 668
(1984), the Supreme Court established a 
two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a 

claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance 
fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance 
prejudiced the [Petitioner] resulting in an unreliable or fundamentally unfair outcome.
Id. at 687
. 
A court considering a claim of ineffective assistance must “indulge a strong presumption that 
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689
. 
The [Petitioner] bears the burden of overcoming the presumption that the challenged action might 
be considered sound trial strategy.
Id.
(citing Michel v. Louisiana,
350 U.S. 91, 101
(1955)); see 
also Nagi v. United States,
90 F.3d 130, 135
(6th Cir. 1996) (holding that counsel’s strategic 
decisions were hard to attack). The court must determine whether, in light of the circumstances as 
they existed at the time of counsel’s actions, “the identified acts or omissions were outside the 
wide range of professionally competent assistance.” Strickland,
466 U.S. at 690
. Even if a court 
determines that counsel’s performance was outside that range, the [Petitioner] is not entitled to 
relief if counsel’s error had no effect on the judgment.
Id. at 691
.      

    Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews 
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is 
“doubly” deferential. Harrington,
562 U.S. at 105
(citing Knowles v. Mirzayance,
556 U.S. 111, 
123
(2009)); see also Burt v. Titlow,
571 U.S. 12, 15
(2013); Cullen,
563 U.S. at 190
; Premo v. 
Moore,
562 U.S. 115, 122
(2011). Scrutiny of counsel’s performance is “highly deferential”, per 
Strickland, to avoid the temptation to second guess a strategy after-the-fact and to “eliminate the 
distorting effects of hindsight.” Strickland,
466 U.S. at 689
. Furthermore, scrutiny of the state 
court’s scrutiny of counsel’s performance must also be deferential, per
28 U.S.C. § 2254
(d). In 
light of that double deference, the question before the habeas court is “whether there is any 

reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk,
687 F.3d 723
, 740–41 (6th Cir. 2012) (stating that the “Supreme Court has recently again 
underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA 
. . . .” (citing Harrington,
562 U.S. at 102
)).                           
    Petitioner raised his second ground for relief on direct appeal and asserted his other 
ineffective assistance claims in his Rule 6.500 motion. On direct appeal, the Michigan Court of 
Appeals explicitly cited Strickland for the standard. See George,
2018 WL 3244122
, at *4. In its 
order denying Petitioner’s Rule 6.500 motion, the trial court did not set out a standard under which 
it addressed Petitioner’s ineffective assistance claims.                  
    There is no question that the court of appeals applied the correct standard on direct appeal, 
and Petitioner offers nothing to suggest that the trial court applied an incorrect standard when 
reviewing his Rule 6.500 motion. This eliminates the possibility that the resulting decisions are 
“contrary to” clearly established federal law. Therefore, because the state courts applied the correct 
standard,  Petitioner  can  only  overcome  the  deference  afforded  state  court  decisions  if  the 

determinations  regarding  ineffective  assistance  of  counsel  are  unreasonable  applications  of 
Strickland or if the state courts’ resolutions were based on unreasonable determinations of the 
facts. See
28 U.S.C. § 2254
(d).                                           
         2.   Ground II—Lesser-Included Instruction                      
    Petitioner first faults counsel for failing to request a lesser-included jury instruction for 
voluntary manslaughter. (Am. Pet., ECF No. 1, PageID.80.)                 
    Petitioner raised this claim on direct appeal, arguing that such an instruction was warranted 
because “there was virtually no evidence presented as to premeditation.” George,
2018 WL 
3244122
, at *4. The court of appeals disagreed, first noting that a voluntary manslaughter 
conviction required a killing “in the heat of passion” caused by “adequate provocation.”
Id.
(quoting People v. Mendoza,
468 Mich. 527, 541
;
664 N.W.2d 685
(2003)). The court of appeals 
then stated:                                                              
    There was no evidence on the record of adequate or contemporaneous provocation 
    to support an instruction of voluntary manslaughter. There was testimony given by 
    various witnesses that place the victim and [Petitioner] together shortly before the 
    shooting and none of these witnesses testified that it appeared that there were any 
    issues or problems between [Petitioner] and the victim at that time. By contrast 
    there was evidence of premeditation presented when five days prior to the shooting 
    [Petitioner]  told  the  victim’s  mother  that  he  was  going  to  shoot  her  son. 
    Furthermore, the focus of trial counsel’s defense argument was that someone else 
    was the shooter. Based on this theory of defense it would appear that trial counsel’s 
    failure to request a voluntary manslaughter instruction was a matter of trial strategy. 
    “Failing to request a particular jury instruction can be a matter of trial strategy.” 
    People v. Dunigan,
299 Mich. App. 579, 584
;
831 N.W.2d 243
(2013). This Court 
    will not substitute its judgment for that of counsel regarding matters of trial 
    strategy, nor will it assess counsel’s competence with the benefit of hindsight. 
    People v. Garza,
246 Mich. App. 251, 255
;
631 N.W.2d 764
(2001).     
George,
2018 WL 3244122
, at *4.                                           
    Given the double deference owed to the court of appeals’ conclusion, it is not for this Court 
to decide whether counsel’s strategy was reasonable. Rather, this Court must determine “whether 
there  is  any  reasonable  argument  that  counsel  satisfied  Strickland’s  deferential  standard.” 
Harrington,
562 U.S. at 105
. The Court, therefore, must consider the court of appeals’ assessment 
of trial counsel’s action, not counsel’s action itself.5                  
    In Keeble v. United States,
412 U.S. 205
(1973), the Supreme Court explored the possible 
outcomes that might follow from giving—or failing to give—a lesser-included offense instruction. 
The Keeble Court acknowledged the potential benefit that Petitioner claims was denied to him at 

trial:                                                                    
    [I]t is no answer to petitioner’s demand for a jury instruction on a lesser offense to 
    argue that a defendant may be better off without such an instruction. True, if the 
    prosecution has not established beyond a reasonable doubt every element of the 
    offense charged, and if no lesser offense instruction is offered, the jury must, as a 
    theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser 
    offense instruction—in this context or any other—precisely because he should not 
    be exposed to the substantial risk that the jury’s practice will diverge from theory. 
    Where one of the elements of the offense charged remains in doubt, but the 
    defendant is plainly guilty of some offense, the jury is likely to resolve its doubts 
    in favor of conviction. In the case before us, for example, an intent to commit 
    serious bodily injury is a necessary element of the crime with which petitioner was 
    charged, but not of the crime of simple assault. Since the nature of petitioner’s 
    intent was very much in dispute at trial, the jury could rationally have convicted 
    him of simple assault if that option had been presented. But the jury was presented 
    with only two options: convicting the defendant of assault with intent to commit 
    great bodily injury, or acquitting him outright. We cannot say that the availability 

5 Petitioner bears the burden of overcoming the presumption that the challenged action might be 
considered sound trial strategy and, therefore, can only prevail if he shows that the challenged 
action cannot be considered sound trial strategy. Thus, as the Harrington Court noted, “Strickland 
. . . calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s 
subjective state of mind.” Harrington,
562 U.S. at 110
. If the Michigan Court of Appeals conceived 
of a sound strategy that includes the challenged action, the matter is resolved. 
    of a third option—convicting the defendant of simple assault—could not have 
    resulted in a different verdict.                                     
Keeble, 412 U.S. at 212–13; see also Beck v. Alabama,
447 U.S. 625, 634
(1980) (noting that 
“providing the jury with the ‘third option’ of convicting on a lesser included offense ensures that 
the jury will accord the defendant the full benefit of the reasonable-doubt standard”). 
    The Sixth Circuit has considered similar claims from habeas petitioners in numerous 
opinions. For example, the Sixth Circuit has held that counsel was not ineffective for failing to 
request a lesser-included manslaughter instruction in a situation where the petitioner and defense 
counsel’s primary defense theory was that the petitioner was not the one who shot the victim. See 
Tinsley v. Million,
399 F.3d 796, 808
(6th Cir. 2005). The Sixth Circuit has also declined to find 
ineffective assistance of counsel where counsel’s failure to request a lesser-included voluntary 

manslaughter instruction was consistent with the defendant’s effort to seek a full acquittal on the 
basis of self-defense. See Lewis v. Russell,
42 F. App’x 809
, 810–11 (6th Cir. 2002). Similarly, in 
Edwards v. Mack, the Sixth Circuit concluded that counsel was not ineffective for waiving jury 
instructions for lesser-included offenses where counsel and the defendant hoped to obtain an 
acquittal on the murder charge. See Edwards v. Mack,
4 F. App’x 215
, 217–18 (6th Cir. 2001). 
Overall, the Sixth Circuit has concluded that such a “high risk, high reward” strategy is reasonable 
when there is sufficient evidence in the record to support a chance of acquittal. See Kelly v. 
Lazaroff,
846 F.3d 819, 830
(6th Cir. 2017); see also Harrop v. Sheets,
430 F. App’x 500, 507
(6th 
Cir. 2011) (discussing that counsel could have reasonably decided not to request a lesser offense 

instruction because such an instruction “would have diluted the other arguments [counsel] was 
advancing to the jury”).                                                  
    Here, the record before the Court establishes that defense counsel’s strategy was to argue 
that Petitioner was not the shooter, thereby hoping for a full acquittal. In sum, Petitioner’s situation 
is quite similar to those presented in Tinsley, Edwards, Kelly, and Harrop, where the Sixth Circuit 
concluded that counsel was not ineffective for not requesting lesser-included instructions because 
the defendant hoped to obtain a complete acquittal. Petitioner has failed to show that the court of 
appeals’ rejection of this claim of ineffective assistance was contrary to, or an unreasonable 
application of, Strickland. Accordingly, Petitioner is not entitled to relief with respect to habeas 

ground II.                                                                
         3.   Failure to Seek Suppression of Evidence                    
    As his eighth ground for relief, Petitioner suggests that counsel was ineffective “for failing 
to move to suppress evidence obtained from [Petitioner’s] person pursuant to a search warrant, 
because the affidavit submitted in support of the search warrant for his person contained knowingly 
false statements that were necessary to establish probable cause to issue the warrant.” (Am. Pet., 
ECF No. 19, PageID.71.)                                                   
    Petitioner relies upon his Rule 6.500 brief to provide context for his claim. In that brief, 
Petitioner argued that the affidavits supporting the search warrants for the premises as well as for 
Petitioner’s  person  contained  false  statements.  (ECF  No.  19-1,  PageID.147.)  Specifically, 

Petitioner states:                                                        
    [Petitioner] argues that the search warrant affidavit falsely reported that Sergeant 
    Howes interviewed Angelo Brown on the scene who stated that Westly Lacharles 
    George III had shot Eugene, and fled from the scene; that Angelo Brown advised 
    Sergeant Howes that Westly shot Eugene with a matt[e] (dull) gray/black in color 
    revolver; that officers upon arrival discovered that Eugene D’Mario Jackson had 
    been shot and transported by ambulance to Three Rivers Hospital; that Westly had 
    blood on his shirt.                                                  
(Id., PageID.149.) Petitioner suggests that if these false statements are set aside, the affidavits 
attached to the warrants do not contain sufficient information to support a finding of probable 
cause. (Id.)                                                              
    Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, stating: 
    There was no motion to suppress the evidence obtained pursuant to the search 
    warrants in this case. The basis for the claim is that witnesses testified differently 
    as to how certain things occurred at the preliminary exam and at trial than what the 
    officers were told at the time of the warrants being sought. This is not the basis to 
    find that the officers intentionally falsified information to obtain [Petitioner’s] 
    closed and other evidence which showed the presence of gunshot residue. 
    There was no basis for council to raise a motion to suppress a warrant until the 
    witnesses testified at trial after the evidence was already introduced. There is no 
    basis to conclude that the officers submitted false affidavits because witnesses 
    testify differently later.                                           
(ECF No. 29-19, PageID.2767.)                                             
    The Supreme Court has noted that “[w]here defense counsel’s failure to litigate a Fourth 
Amendment claim competently is the principal allegation of ineffectiveness, the defendant must 
also prove that his Fourth Amendment claim is meritorious and that there is a reasonable 
probability that the verdict would have been different absent the excludable evidence in order to 
demonstrate actual prejudice.” Kimmelman v. Morrison,
477 U.S. 365, 375
(1986); see also 
Richardson v. Palmer,
941 F.3d 838
, 857 (6th Cir. 2019). Accordingly, Petitioner’s ineffective 
assistance claim requires consideration of the merits of Petitioner’s Fourth Amendment claim and, 
to the extent that Petitioner’s Fourth Amendment claim lacks merit, his ineffective assistance claim 
necessarily fails.                                                        
    The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and seizures” and mandates that “no 
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. 
IV. The Fourth Amendment requires “only three things” with respect to search warrants. Dalia v. 
United States,
441 U.S. 238, 255
(1979). First, the warrant must be issued by a “neutral and 
detached” magistrate “capable of determining whether probable cause exists.” Shadwick v. City of 
Tampa,
407 U.S. 345, 350
(1972). Second, there must be a finding of probable cause. See U.S. 
Const. amend. IV. Third, the search warrant must “particularly describe[e] the place to be searched, 
and the . . . things to be seized.” Id.; see also Maryland v. Garrison,
480 U.S. 79
, 84–85 (1987). 
    A defendant may be entitled to have a warrant voided when the warrant affiant’s statements 
were deliberately false or made in reckless disregard for the truth and the affidavit’s remaining 
content is insufficient to establish probable cause. Franks v. Delaware,
438 U.S. 154, 156
(1978). 

The burden rests on the defendant to establish by a preponderance of the evidence that the affidavit 
contains a reckless or deliberate falsehood and that with this material “set to one side, the 
affidavit’s remaining content is insufficient to establish probable cause.”
Id.
As noted above, the trial court rejected Petitioner’s assertion of ineffective assistance 
because Petitioner had not demonstrated that the officers deliberately submitted false affidavits in 
support of the search warrants. Petitioner has not corrected that deficiency in his § 2254 petition. 
Instead, Petitioner relies upon his Rule 6.500 brief, in which he argued that the affidavit falsely 
stated  that  the  victim  had  been  transported  to  the  hospital  by  ambulance.  (ECF  No.  19-1, 
PageID.152.)  Petitioner  claims  this  statement  was  false  because  a  witness  testified  at  the 

preliminary examination that he had picked up the victim’s body and drove him to the hospital. 
(Id.) Petitioner also suggests that the affidavit falsely stated that Angelo Brown had seen Petitioner 
with a gun because Brown testified at the preliminary examination and trial that he had not seen 
Petitioner with a gun on the evening in question. (Id., PageID.154–156.) Petitioner argues that 
these false statements were necessary for the probable cause determination. (Id., PageID.156.) 
    Petitioner does not explain, and the Court does not discern, how the manner in which the 
victim  was  transported  to  the  hospital  was  material  to  a  determination  of  probable  cause. 
Furthermore, even if the affidavit in support of the search warrant omitted the statement that 
Angelo Brown had told officers that Petitioner shot the victim with a matte gray/black revolver, 
the affidavit’s remaining content is still sufficient to establish probable cause. When officers 
arrived on scene, they found that the victim had been shot, and Brown told them that Petitioner 
had been the one to shoot the victim. (ECF No. 19-1, PageID.227–228.) The officer who located 
Petitioner “immediately observed” blood on the right cuff of Petitioner’s shirt, and noticed that 
Petitioner was not injured. (Id.) Ray Merryman and Herbert Drayton told officers that Petitioner 

had come to their residence about 15 minutes prior to the shooting and stayed for about 5-6 
minutes. (Id.) A short time after the shooting, Petitioner ran through the residence. (Id.) Merryman 
saw Petitioner standing near the back door, and Petitioner stated, “I’m scared.” (Id.) These 
allegations, taken as a whole, were sufficient to establish probable cause for the search of the 
premises as well as Petitioner’s person.                                  
    Even if Angelo Brown mistakenly told officers that Petitioner had shot the victim with a 
revolver, Petitioner has not demonstrated that the officer who was the affiant for the warrant know 
that the statement was false or included it in reckless disregard for the truth of the statement. See 
Franks,
438 U.S. at 156
. Simply put, the challenge that Petitioner claims his counsel failed to raise 

was meritless, and “[o]mitting meritless arguments is neither professionally unreasonable nor 
prejudicial.” Coley v. Bagley,
706 F.3d 741, 752
(6th Cir. 2013); see also Mahdi v. Bagley,
522 
F.3d 631, 638
(6th Cir. 2008) (“No prejudice flows from the failure to raise a meritless claim.”). 
Accordingly, Petitioner is not entitled to relief with respect to habeas ground VIII. 
         4.   Failure to Challenge Subject-Matter Jurisdiction           
    As part of habeas ground IX, Petitioner suggests that counsel was ineffective for failing to 
challenge the trial court’s subject-matter jurisdiction over Petitioner. (Am. Pet., ECF No. 19, 
PageID.73.) Petitioner also appears to fault counsel for not ensuring that such jurisdiction was 
established by entering a plea on Petitioner’s behalf. (Id.) As discussed supra, Petitioner’s subject-
matter jurisdiction argument is wholly without merit, and it would have been futile for counsel to 
argue otherwise. See Coley,
706 F.3d at 752
; Mahdi,
522 F.3d at 638
. Accordingly, Petitioner is 
not entitled to relief with respect to this portion of habeas ground IX.  
    G.   Ground VI—Newly Discovered Evidence                             
    As part of his sixth ground for relief, Petitioner contends that “newly discovered evidence” 
shows that the medical examiner, Elizabeth Douglas, “testified falsely regarding her examination 

of [the] decedent.” (Am. Pet., ECF No. 19, PageID.75.) According to Petitioner, this new evidence 
shows that the victim was shot multiple times in the chest, but Douglas testified that he was shot 
in the back. (Id.) Petitioner appears to suggest that he is entitled to a new trial and/or is actually 
innocent based upon this newly discovered evidence.                       
    Any claim of actual innocence, however, fails to state a cognizable federal claim. The 
Supreme Court has held that “[c]laims of actual innocence based on newly discovered evidence 
have  never  been  held  to  state  a  ground  for  federal  habeas  relief  absent  an  independent 
constitutional violation occurring in the underlying state criminal proceeding.” Herrera,
506 U.S. 
at 400
. But the Herrera Court did not close the door completely, stating in dicta: “in a capital case 
a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution 

of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue 
open to process such a claim.”
Id. at 417
. Thus, even without the occurrence of any independent 
constitutional violation during the state criminal proceeding, federal habeas relief might be 
warranted for “truly persuasive demonstration of actual innocence,” provided: (1) the habeas 
petition seeks relief in a capital case, in which case such a demonstration of actual innocence 
“would render the execution of a defendant unconstitutional”; and (2) there is “no state avenue 
open to process such a claim.”
Id.
The Supreme Court emphasized that “the threshold showing for 
such an assumed right would necessarily be extraordinarily high.” Id.; see also House v. Bell,
547 
U.S. 518, 555
(2006) (“In Herrera, however, the Court described the threshold for any hypothetical 
freestanding innocence claim as ‘extraordinarily high.’”); Cress v. Palmer,
484 F.3d 844
, 854–55 
(6th Cir. 2007).                                                          
    Two years after Herrera, the Supreme Court held that a claim of actual innocence can be 
raised  “to  avoid  a  procedural  bar  to  the  consideration  of  the  merits  of  [the  petitioner’s] 
constitutional claims.” Schlup v. Delo,
513 U.S. 298
, 326–27 (1995). “[I]n an extraordinary case, 

where a constitutional violation has probably resulted in the conviction of one who is actually 
innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for 
the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible 
showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise 
procedurally barred habeas petition. Schlup,
513 U.S. at 317
. The actual innocence claim in Schlup 
is “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must 
pass to have his otherwise barred constitutional claim considered on the merits.”
Id.
at 315 (citing 
Herrera,
506 U.S. at 404
). Thus, the Supreme Court distinguished between a procedural innocence 
claim, which can permit a petitioner to overcome procedural obstacles that would otherwise 

preclude review of underlying constitutional claims, and a substantive or “free-standing” claim of 
innocence discussed in Herrera.                                           
    This Court may grant habeas corpus relief only when the state court has violated or 
unreasonably applied a clearly established holding of the Supreme Court. See
28 U.S.C. § 2254
(d); 
Williams,
529 U.S. at 412
. In the absence of clearly established Supreme Court precedent 
establishing a free-standing claim of actual innocence, Petitioner’s claim is without merit. The 
Sixth Circuit repeatedly has held that free-standing claims of actual innocence are not cognizable 
on habeas corpus review. See Smith v. Nagy,
962 F.3d 192
, 206 (6th Cir. 2020) (citing Schlup and 
Herrera); Cress,
484 F.3d at 854
(citing cases). Even if Petitioner could invoke this exception and 
obtain habeas relief on his freestanding innocence claim, he would have to meet both of the 
requirements set forth above and then overcome the “extraordinarily high” threshold. Petitioner 
fails  the  first  requirement.  This  is  not  a  capital  case,  and  thus,  the  concern  about  the 
unconstitutionality  of  executing  a  defendant  who  has  shown  persuasive  evidence  of  actual 
innocence is not implicated. See Herrera,
506 U.S. at 417
(“We first point out the obvious - that 

this is not, in fact, a capital case.”). Accordingly, Petitioner cannot obtain habeas corpus relief on 
any freestanding claims of actual innocence, and he is not entitled to habeas relief with respect to 
this portion of habeas ground X.                                          
IV.  Certificate of Appealability                                         
    Under
28  U.S.C.  §  2253
(c)(2),  the  Court  must  determine  whether  a  certificate  of 
appealability should be granted. A certificate should issue if Petitioner has demonstrated a 
“substantial showing of a denial of a constitutional right.”
28 U.S.C. § 2253
(c)(2).  
    The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a 
certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467
(6th Cir. 2001) (per curiam). 
Rather, the district court must “engage in a reasoned assessment of each claim” to determine 

whether a certificate is warranted.
Id.
Each issue must be considered under the standards set forth 
by the Supreme Court in Slack v. McDaniel,
529 U.S. 473
(2000). Murphy,
263 F.3d at 467
. 
Consequently, this Court has examined each of Petitioner’s claims under the Slack standard. Under 
Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that 
reasonable jurists would find the district court’s assessment of the constitutional claims debatable 
or wrong.” Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude 
the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 
Cockrell,
537 U.S. 322, 327
(2003). In applying this standard, the Court may not conduct a full 
merits review, but must limit its examination to a threshold inquiry into the underlying merit of 
Petitioner’s 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. Moreover, although Petitioner has failed to demonstrate that he is in custody in 
violation of the Constitution and has failed to make a substantial showing of the denial of a 

constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal 
would be frivolous. Coppedge v. United States,
369 U.S. 438, 445
(1962).  
                            Conclusion                                    
     The Court will enter an order and judgment denying the § 2254 petition as well as a 
certificate of appealability.                                             

Dated:   August 12, 2024            /s/ Paul L. Maloney                    
                                   Paul L. Maloney                        
                                   United States District Judge