Grimes v. Horton

                  UNITED STATES DISTRICT COURT                           
                  EASTERN DISTRICT OF MICHIGAN                           
                       SOUTHERN DIVISION                                 
TRAVIS LOUIS GRIMES,                                                      

    Petitioner,                  Case No. 17-cv-13076                    
                                 Honorable Victoria A. Roberts           
v.                                                                        

CONNIE HORTON,                                                            

    Respondent.                                                          

 ORDER DISMISSING PETITION (ECF NO. 1), DENYING A CERTIFICATE OF         
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS             
    On September 15, 2017, Petitioner Travis Louis Grimes, a prisoner currently confined at 
the Kinross Correctional Facility in Kincheloe, Michigan, filed a pro se petition for habeas 
corpus pursuant to 28 U.S.C. § 2254.  He challenges his convictions for first-degree premeditated 
murder  and  felony-firearm.    He  raises  five  grounds  for  relief.    The  Court  concludes  that 
Petitioner’s  claims  do  not  warrant  relief  and  denies  the  petition.  The  Court  also  denies  a 
certificate of appealability and leave to appeal in forma pauperis.       
                        I.   BACKGROUND                                  
    On  April  16,  2015,  a  Wayne  County  jury  convicted  Petitioner  of  first-degree 
premeditated murder, Mich. Comp. Laws § 750.316, and possession of a firearm during the 
commission of a felony (“felony firearm”), second offense, Mich. Comp. Laws § 750.227b.  The 
Michigan Court of Appeals adequately summarized the facts in its opinion on direct appeal; the 
facts below are presumed to be correct on habeas review, Wagner v. Smith, 581 F.3d 410, 413 
(6th Cir. 2009):                                                          
         This matter arises out of a dispute between Marquis Crooks, defendant, 
    and Starleshay Ballard (defendant’s girlfriend), which resulted in Marquis’s death 
    on  September  9,  2014.  A  number  of  Marquis’  family  members  and  friends 
    witnessed the events leading up to the murder, including his two sisters, Latrice 
    Clark and Kristina Clark; his brother, Julius Crooks; and two of his friends, 
    Carmela Allen and Ramon Ford. Ballard’s daughter was also present during the 
    incident.                                                            

         Although the eyewitnesses provided slightly varying descriptions of the 
    events, it was generally agreed that defendant and Marquis got into a heated 
    argument on September 8, 2014. The next day, Marquis, Julius, Kristina, Ballard, 
    and Ballard’s daughter were involved in a confrontation related to the previous 
    argument. It was undisputed that defendant stepped out of his house during the 
    confrontation and shot Marquis, causing his death.                   

         The key facts in dispute at trial, however, were (1) whether Marquis was 
    armed  with  a  rifle  at  the  time  that  he  was  shot  and  (2)  who  instigated  the 
    September  9,  2014  confrontation.  Marquis’  friends  and  family  members  all 
    testified that he was not armed during the incident, but Ballard and defendant 
    testified that Marquis was armed with a rifle and that he pointed it toward them 
    just  before  the  shooting.  Allen,  Ford,  and  Julius  asserted  that  Ballard  began 
    shouting a Marquis before the shooting, without any justification, while Ballard 
    testified that a group of eight people, including Marquis, surrounded her and 
    wanted to fight.                                                     

People v. Grimes, No. 327489, 2016 WL 5405239, at *1 (Mich. Ct. App. Sept. 27, 2016) 
(unpublished).                                                            
    The trial court sentenced Petitioner to life imprisonment without parole for the first-
degree  murder  conviction  and  five  years’  imprisonment  for  the  felony-firearm  conviction.  
Petitioner filed a direct appeal to the Michigan Court of Appeals.  On appeal, Petitioner claimed 
that  his  constitutional  right  to  present  a  defense  was  violated  when  the  trial  court  made 
statements during the trial that had the effect of excluding testimony from a potential defense 
witness.    He  also  claimed  that  defense  counsel  was  ineffective  for  failing  to  request  a 
continuance or adjournment so that the witness could be produced the next day.  The Michigan 
Court of Appeals denied relief on his claims and affirmed his convictions.  Grimes, 2016 WL 
5405239 at * 6.  On May 2, 2017, the Michigan Supreme Court denied leave to appeal, People v. 
Grimes, 500 Mich. 983, 894 N.W.2d 44 (2017).                              
    On September 15, 2017, Petitioner filed a pro se habeas corpus petition in this Court 
challenging his state convictions for first-degree murder and felony firearm.  About three months 
later on December 4, 2017, Petitioner filed a motion to stay this case to allow him to return to 
state court and pursue state remedies.   Petitioner conceded in his motion to stay that some of his 
claims were unexhausted.  On December 13, 2017, the Court denied the motion to stay and 

dismissed the habeas petition without prejudice on the basis that Petitioner had enough time to 
return to state court, exhaust his remedies, and file a subsequent habeas corpus petition in federal 
court without running afoul of the statute of limitations.                
    On April 16, 2018, Petitioner filed a motion for relief from judgment in the trial court 
asserting that: (1) the trial court denied his right to a fair trial when it combined all the self-
defense instructions into one instruction, (2) critical errors occurred during the trial judge’s 
instructions to the jurors where key defense evidence was not considered during the deliberative 
process, (3) defense counsel rendered ineffective assistance when he failed to object to the trial 
court’s decision to combine the self-defense instructions, (4) appellate counsel was ineffective 

for failing to provide Petitioner with the trial transcripts which prevented him from filing his 
Standard 4 brief.  (ECF No. 17-10, PageID.1068-69.)                       
    The trial court denied the motion for relief from judgment ruling that Petitioner failed to 
demonstrate good cause for failing to raise the first three claims on direct review and show actual 
prejudice as a result, citing Michigan Court Rule 6.508(D)(3)(a) and (b).  With respect to 
Petitioner’s ineffective-assistance-of-appellate-counsel claim, the trial court denied that claim on 
the merits.  (ECF No. 17-11.)  Petitioner filed an application for leave to appeal in the Michigan 
Court of Appeals, which was denied because Petitioner “failed to establish that the trial court 
erred in denying the motion for relief from judgment.” People v. Grimes, 500 Mich. 983, 894 
N.W.2d 44 (2017).  The Michigan Supreme Court denied Petitioner’s application for leave to 
appeal.  People v. Grimes, 937 N.W.2d 652 (Mich. 2020).                   
    On March 25, 2020, Petitioner returned to this Court with his motion to reopen the 
habeas proceedings and amended petition raising the following claims:     
    I.   Trial court denied ability to present a defense, and ineffective assistance of 
    trial counsel. Trial court statements had effect of excluding testimony of defense 
    witness, then defense counsel was ineffective for failing to request a continuance 
    or adjournment of the trial to produce the endorsed defense witness the following 
    day.                                                                 

    II.   Trial court error in combining all of the self-defense instructions. The 
    structural  error  in  jury  instructions  eliminated  a  defense  theory  from 
    consideration.                                                       

    III.  Structural error with jury instructions. The trial court failed to properly 
    instruct the jury on the essential elements of the self-defense theory. 

    IV.  Ineffective assistance of trial counsel. Trial counsel failed to object to the 
    trial court judge’s decision to combine the self-defense instruction. 

    V.   Ineffective assistance of appellate counsel (failure to present claims and 
    transcripts).                                                        

(ECF No. 5.)                                                              

    On  July  16,  2020,  the  Court  granted  Petitioner’s  request  and  reopened  the  case. 
Respondent subsequently filed an answer in opposition to the amended petition for a writ of 
habeas  corpus  contending  that  it  should  be  denied  because  certain  claims  are  procedurally 
defaulted, and all of the claims lack merit.  Petitioner filed a reply to that answer.   
                     II.  STANDARD OF REVIEW                             
    28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act 
of 1996 (AEDPA), imposes the following standard of review for habeas cases: 
    An application for a writ of habeas corpus on behalf of a person in custody 
    pursuant to the judgment of a State court shall not be granted with respect to any 
    claim that was adjudicated on the merits in State court proceedings unless the 
    adjudication of the claim–                                           

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

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

    A decision of a state court is “contrary to” clearly established federal law if the state court 
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if 
the state court decides a case differently than the Supreme Court has on a set of materially 
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable 
application” occurs when “a state court decision unreasonably applies the law of [the Supreme 
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 
writ simply because that court concludes in its independent judgment that the relevant state-court 
decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[A] 
state court’s determination that a claim lacks merit precludes federal habeas relief so long as 
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. 
Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show 
that the state court’s rejection of his claim “was so lacking in justification that there was an error 
well  understood  and  comprehended  in  existing  law  beyond  any  possibility  for  fairminded 
disagreement.” Harrington, 562 U.S. at 103.                               
                         III.  DISCUSSION                                
    The  Court  notes  preliminarily  that  although  Respondent  argues  Petitioner  has 
procedurally defaulted all but one of his claims of error, it is not obligated to address that defense 
because procedural default is not a jurisdictional bar to review of the merits.  Smith v. Nagy, 962 
F.3d 192, 207 (6th Cir 2020); Trest v. Cain, 522 U.S. 87, 89 (1997)); see also Hudson v. Jones, 
351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)) 
(“[F]ederal courts are not required to address a procedural default issue before deciding against 
the petitioner on the merits[.]”)  The Sixth Circuit notes its own decisions “may sometimes reach 

the merits of a petitioner’s claim, particularly when the merits are easily resolvable against the 
petitioner while the procedural issues are complicated.” Smith, 962 F.3d at 207 (citing Lambrix, 
520 U.S. at 525); see also id. (finding “resolution of the procedural issues . . .  not necessary 
[and] that the claim is better resolved on the merits”).                  
    The procedural default analysis will not affect the outcome of this case, and it is more 
efficient for the Court to proceed directly to the merits of Petitioner’s claims.  
 A.  Right to Present a Defense and Related Ineffective Assistance of Counsel Claim 
    Petitioner first argues that the trial court denied him the opportunity to present a complete 
defense when it precluded the testimony of a potential defense witness.  He also brings a related 

claim that defense counsel was ineffective for failing to request an adjournment or continuance 
to produce the witness the following day.                                 
                               1.                                        
    After the prosecution presented its case-in-chief, defense counsel informed the trial court 
that he subpoenaed two defense witnesses to testify—Starleshay Ballard and her thirteen-year-
old daughter.  (ECF No. 17-7, PageID.875-76.)  He further informed the court that Ballard 
expressed an unwillingness to testify as well as a reluctance to produce her daughter as a witness.  
Id. at 876.   The trial court questioned Ballard and the following dialogue transpired:  
    THE COURT: Okay. Now you’ve been requested to give testimony in regard to 
    this case on behalf of the defendant, Mr. Grimes; is that right?     
    MS. BALLARD: Yes.                                                    

    THE COURT: Okay. Are you desirous of giving testimony in regard to this case or 
    not, what?                                                           

    MS. BALLARD: Yes.                                                    

    THE COURT: You are desirous of giving testimony?                     

    MS. BALLARD: Yes, sir.                                               

    THE COURT: Okay, very good. And your daughter has as well been requested to 
    give testimony on behalf of Mr. Grimes. Are you prepared to produce her to give 
    testimony?                                                           

    MS. BALLARD: Not today. She’s in school. I brought her the other day. Today I 
    was told that I only needed to be here.                              

    THE COURT: Today is it. Today is it. Okay, very good. Mr. Kinney, who do you 
    wish to call first, your client or Ms. Ballard?                      

    MR. KINNEY: Ms. Ballard.                                             

(ECF No. 17-7, PageID.877.)                                               

    Petitioner asserts that the trial court violated his right to present a complete defense by 
effectively precluding Ballard’s  daughter  from  testifying.    The  Michigan  Court  of  Appeals 
determined that Petitioner’s constitutional claim was unpreserved because defense counsel failed 
to object to the trial court’s statements that allegedly violated his right to present a defense, and it 
went on to find that the evidentiary error was harmless, stating in pertinent part that:  
         To the extent that defendant’s argument may be understood as contending 
    that the trial court effectively denied him the opportunity to seek an adjournment 
    or continuance in order to present Ballard’s daughter as a witness, we reject 
    defendant’s claim, as there is nothing in the record to support such a contention. A 
    defendant’s right to present a defense “is not absolute,” and “[a] defendant must 
    comply with established rules of procedure and evidence designed to assure both 
    fairness and reliability in the ascertainment of guilt and innocence.” Daniels, 311 
    Mich. App at 265 (quotation marks and citation omitted).             
    “MCR  2.503  is  the  established  rule  of  procedure  that  governs 
adjournments, particularly to secure the testimony of a witness.” Id. MCR 2.503 
provides, in relevant part:                                          

    (B) Motion or Stipulation for Adjournment.                      

         (1) Unless the court allows otherwise, a request for an adjournment 
         must be by motion or stipulation made in writing or orally in open 
         court based on good cause.                                 

                      * * *                                         
    (C) Absence of Witness or Evidence.                             

         (1) A motion to adjourn a proceeding because of the unavailability 
         of a witness or evidence must be made as soon as possible after 
         ascertaining the facts.                                    

         (2) An adjournment may be granted on the ground of unavailability 
         of a witness or evidence only if the court finds that the evidence is 
         material and that diligent efforts have been made to produce the 
         witness or evidence.                                       

Thus, under MCR 2.503(C),                                            

    to invoke the trial court's discretion to grant a continuance or adjournment, 
    a defendant must show both good cause and diligence. “Good cause” 
    factors include “whether defendant (1) asserted a constitutional right, (2) 
    had a legitimate reason for asserting the right, (3) had been negligent, and 
    (4) had requested previous adjournments.” Even with good cause and due 
    diligence,  the  trial  court's  denial  of  a  request  for  an  adjournment  or 
    continuance is not grounds for reversal unless the defendant demonstrates 
    prejudice as a result of the abuse of discretion. [People v. Coy, 258 Mich. 
    App 1, 18–19; 669 NW2d 831 (2003) (citations omitted).]         

    Defendant never requested an adjournment or a continuance in accordance 
with MCR 2.503(B)(1), and the defense rested its case without any indication that 
it still wished to call Ballard’s daughter as a witness. Further, defendant made no 
attempt in the trial court, and he makes no attempt on appeal, to demonstrate good 
cause for an adjournment or due diligence in attempting to secure her presence, 
and the record undermines such a showing. See MCR 2.503(C)(2); Coy, 258 
Mich. App at 18–19. It is clear that defendant was well aware that testimony from 
Ballard's daughter could have been valuable to the defense, as he had first-hand 
knowledge that she was an eyewitness to the shooting and the events surrounding 
it. He was in regular contact with Ballard, speaking to her by phone numerous 
times during his pretrial incarceration. However, he failed to take steps to ensure 
that Ballard’s daughter would be available to testify at trial, even after he was put 
    on notice at the April 3, 2015 final conference that Ballard had initially refused 
    service of a subpoena and may not produce her daughter at the trial, and the trial 
    court specifically advised defendant to get in touch with Ballard and her daughter 
    if he wished to secure their presence at trial.                      

         Moreover, even if we assume, arguendo, that the trial court’s statements 
    amounted to a refusal to allow the defense to call Ballard’s daughter as a witness 
    because  of  her  absence,  such  a  refusal  would  not  have  violated  defendant’s 
    constitutional right to present a defense. As mentioned above, defendant relied on 
    a theory of self-defense and defense of others at trial. In support of this defense, 
    he testified regarding the actions of Marquis and his family and alleged that he 
    only shot Marquis in order to protect himself, Ballard, and Ballard’s daughter. 
    Ballard also provided testimony concerning the circumstances leading up to the 
    shooting that supported defendant’s theory of self-defense and defense of others. 
    Because defendant was, in fact, able to present other evidence that supported his 
    defense theory, his constitutional rights were not violated. See People v. Mesik 
    (On Reconsideration), 285 Mich. App 535, 537–538; 775 NW2d 857 (2009); 
    People  v.  Herndon,  246  Mich.  App  371,  411;  633  NW2d  376  (2001). 
    Additionally,  although  defendant  speculates  on  appeal  that  testimony  from 
    Ballard’s daughter would have bolstered his defense, there is simply no evidence 
    in the record that Ballard’s daughter would have corroborated his version of the 
    events if she had testified at trial.                                

         Defendant has failed to demonstrate that the trial court erred, that the trial 
    court’s alleged error affected the outcome of the trial, and, therefore, that the trial 
    court committed a plain error affecting his substantial rights. See Carines, 460 
    Mich. at 763–764.                                                    

People v. Grimes, No. 327489, 2016 WL 5405239, at *3-4.                   
    The  state  court’s  decision  is  neither  contrary  to  Supreme  Court  precedent  nor  an 
unreasonable application of federal law or the facts.  The right of an accused to present a defense 
has long been recognized as “a fundamental element of due process.” Washington v. Texas, 388 
U.S. 14, 19 (1967); see also Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) (state rule 
excluding evidence of third party guilt based solely on strength of prosecution’s case violated 
defendant’s right to present a defense); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) 
(exclusion  of  hearsay  statements  critical  to  defense  which  “bore  persuasive  assurances  of 
trustworthiness,” coupled with refusal to permit cross-examination of the declarant, violated 
defendant's right to due process).                                        
    A defendant’s right to present evidence is not unlimited, however, and may be subject to 
“reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998). A defendant “does 
not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise 

inadmissible under standard rules of evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) 
(quoting  Taylor  v.  Illinois,  484  U.S.  400,  410  (1988));  see  also  Holmes,  547  U.S.  at  326 
(recognizing that “well-established rules of evidence permit trial judges to exclude evidence if its 
probative value is outweighed by certain other factors such as unfair prejudice, confusion of the 
issues, or potential to mislead the jury”). When deciding if the exclusion of evidence impairs a 
defendant’s rights, the question is not whether the excluded evidence would have caused the jury 
to reach a different result. The question is whether the defendant was afforded “a meaningful 
opportunity to present a complete defense.”  Crane v. Kentucky, 476 U.S. 683, 690 (1986) 
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see also Chambers, 410 U.S. at 

302.                                                                      
    The state court correctly determined that Petitioner failed to establish that he was denied 
his constitutional right to present a defense.  First, the state-court record does not support 
Petitioner’s assertion that the trial court excluded the testimony of Ballard’s daughter.  The trial 
court did not make any ruling with respect to Ballard’s daughter’s testimony.  When questioning 
Ballard  whether  her  daughter  was  available  to  testify,  Ballard  informed  the  court  that  her 
daughter was in school.  The trial court responded, “Today is it. Today is it.”  (ECF No. 17-7, 
PageID.877.)  Although Petitioner urges this Court to interpret the trial court’s statements as 
constitutionally interfering with his right to present a defense, the fact that he never requested a 
continuance or adjournment in accordance with Michigan Court Rule with MCR 2.503(B)(1), 
nor gave the slightest indication that he wished to call Ballard’s daughter as a witness on another 
day, defeats his claim.  Petitioner was clearly aware that Ballard’s daughter was an eyewitness to 
the shooting and the events leading up to the victim’s death.  It was Petitioner’s responsibility to 
secure and produce any defense witness at the appropriate time.  As such, the trial court did not 

preclude Petitioner from presenting his defense and he was afforded a meaningful opportunity to 
do so.                                                                    
    Second, even if this Court accepted Petitioner’s argument as true, the trial court’s refusal 
to allow Ballard’s daughter to testify did not violate his right to present a defense.  Petitioner 
presented  ample  evidence  in  support  of  his  theory  of  self-defense  and  defense  of  others.  
Petitioner testified on his own behalf and claimed that he saw the victim with a gun heading 
toward Petitioner’s house, shot at the victim to protect his family, and then ran, “fearing for [his] 
life.” (ECF No. 17-7, PageID.940, 943, 945.)  Ballard testified and provided corroborating 
evidence to support Petitioner’s self-defense and defense-of-others theory.  (Id. at PageID.878-

924.)  Petitioner also called Officer Danny Barbee to testify for the purpose of impeaching the 
testimony of one of the State’s witnesses.  (ECF No. 17-7, PageID.927.)  Because Petitioner was 
able to substantially present his theory of the case, the exclusion of any additional testimony was 
harmless error.  For purposes of federal habeas review, a constitutional error is considered 
harmless if it did not have a “substantial and injurious effect or influence” on the outcome of the 
proceeding.  Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Ruelas v. Wolfenbarger, 580 F.3d 
403, 411 (6th Cir. 2009) (ruling that Brecht is “always the test” in the Sixth Circuit).  To the 
extent any error occurred, it did not affect the outcome of the proceeding.   
    Moreover, Petitioner’s claim is speculative.  Nothing in the state-court record suggests 
Ballard’s daughter’s testimony would have supported Petitioner’s theory of the case.  And 
Petitioner has not proffered Ballard’s daughter’s testimony to this Court.  A habeas petitioner is 
not entitled to habeas relief on a right to present a defense claim that is merely speculative.  See 
e.g. Berry v. Palmer, 518 F. App’x. 336, 342 (6th Cir. 2013). Without knowing the precise 

nature of the excluded testimony, this Court is unable to establish whether the testimony would 
have been helpful to Petitioner.  For these reasons, Petitioner is not entitled to habeas relief on 
this claim.                                                               
                               2.                                        
    Petitioner is also not entitled to habeas relief on his derivative claim that trial counsel was 
ineffective for failing to request an adjournment or continuance of the trial.  The Michigan Court 
of Appeals rejected Petitioner’s ineffective assistance of counsel claim on the basis that defense 
counsel’s actions were reasonable trial strategy and he was not prejudiced by counsel’s actions.  
The Court agrees with the Michigan Court of Appeals’ application of federal law. 

    The Sixth Amendment to the United States Constitution guarantees a criminal defendant 
the right to the effective assistance of counsel. When counsel is ineffective, that right is abridged. 
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).  An ineffective assistance of counsel 
claim has two components. A petitioner must show that counsel’s performance was deficient, 
and that deficiency prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687 (1984). 
An attorney’s performance meets the first element when “counsel’s representation [falls] below 
an objective standard of reasonableness.” Id. at 688. The petitioner must show “that counsel 
made  errors  so  serious  that  counsel  was  not  functioning  as  the  ‘counsel’  guaranteed  the 
defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of counsel’s performance 
must be highly deferential.”  Id. at 689.  The Supreme Court has “declined to articulate specific 
guidelines for appropriate attorney conduct and instead [has] emphasized that the proper measure 
of attorney performance remains simply reasonableness under prevailing professional norms.” 
Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688) (quotation marks omitted). 
    An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as 

to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 
687. The petitioner must show “a reasonable probability that, but for counsel’s unprofessional 
errors, the result of the proceeding would have been different. A reasonable probability is a 
probability sufficient to undermine confidence in the outcome.” Id. at 694. Unless a defendant 
demonstrates both deficient performance and prejudice, “it cannot be said that the conviction 
resulted from a breakdown in the adversary process that renders the result unreliable.”  Id. at 
687.                                                                      
    Success  on  ineffective  assistance  of  counsel  claims  is  relatively  rare,  because  the 
Strickland  standard  is  “  ‘difficult  to  meet.’  ”  White,  572  U.S.  at  419  (quoting  Metrish  v. 

Lancaster, 569 U.S. 351, 357-58 (2013)).  And under AEDPA, obtaining relief under Strickland 
is even more difficult because “[t]he standards created by Strickland and § 2254(d) are both 
highly deferential and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 
105 (citations and quotation marks omitted).  This doubly-deferential standard requires the Court 
to give “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 
571 U.S. 12, 15 (2013). “[T]he question is not whether counsel’s actions were reasonable,” but 
whether  “there  is  any  reasonable  argument  that  counsel  satisfied  Strickland’s  deferential 
standard.” Richter, 562 U.S. at 105.                                      
    To succeed on the first part of Strickland, Petitioner must overcome the presumption that, 
under the circumstances, the challenged action might be sound trial strategy.  Strickland, 466 
U.S.  at  689.    The  issue  of  ineffective  assistance  complained  about  seems  to  be  a  part  of 
purposeful  trial  strategy,  considering  defense  counsel’s  understanding  of  Ballard’s  prior 
reluctance to produce her daughter and the fact that both Petitioner and Ballard were able to 

testify.  Petitioner has presented no evidence to overcome this presumption.  Additionally, 
Petitioner has not shown that he was prejudiced by counsel’s actions because it is unclear from 
the state record whether the trial court would have granted a request to continue the trial.    
Therefore,  the  state  appellate  court’s  decision  that  trial  counsel  was  not  ineffective  was 
objectively reasonable.                                                   
    Further, to the extent Petitioner also argues that counsel was ineffective for failing to call 
Ballard’s daughter as a witness, he is not entitled to relief.  When a habeas petitioner predicates 
an ineffective-assistance-of-counsel claim on a failure to call a witness, he must provide the 
content of the missing witness’s potential testimony.  Clark v. Waller, 490 F.3d 551, 557 (6th 

Cir. 2007). Without such a proffer, a petitioner cannot establish “that his counsel performed 
deficiently or that he was actually prejudiced.” Id. (citing Stewart v. Wolfenbarger, 468 F.3d 338, 
353  (6th  Cir.  2006)).    Petitioner  did  not  provide  the  Court  with  any  affidavit  or  witness 
statement.  Therefore, he does not meet the requirements of Strickland or Clark.  Petitioner is not 
entitled to habeas relief on this claim.                                  
 B.  Jury Instruction Claims                                             
    In his second and third habeas claims, Petitioner asserts that the trial court improperly 
combined  the  jury  instructions  on  self-defense  and  defense-of-others.    He  argues  that  his 
“conviction was based on an erroneous combination of the two self-defense instructions because 
each instruction requires a differen[t] level of ‘reasonable fear,’ and the combination of the two 
instructions omitted the lesser level of ‘reasonable’ fear from the jury consideration.”  (ECF No. 
17-10, PageID.1065.)   He also argues that the trial court erred by instructing the jury that self-
defense requires him to establish a “great fear.”  The state trial court declined to address his 
claims on the merits, citing Michigan Court Rule 6.508(D)(3)(a) and (b). Therefore, the Court 

shall review the claim de novo.  The Court concludes Petitioner’s jury instruction claims lack 
merit.                                                                    
    Typically, a claim that a trial court gave an improper jury instruction is not cognizable on 
habeas review.  Rather, Petitioner must show that the erroneous instruction “so infected the 
entire trial that the resulting conviction violates due process.”  Henderson v. Kibbe, 431 U.S. 
145,  155,  (1977);  see  also  Estelle  v.  McGuire,  502  U.S.  62,  75  (1991)  (erroneous  jury 
instructions may not serve as the basis for habeas relief unless they have “so infused the trial 
with unfairness as to deny due process of law”); Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 
2000).  A jury instruction is not to be judged in artificial isolation, but must be considered in the 

context of the instructions as a whole and the trial record.  Jones v. United States, 527 U.S. 373, 
391 (1999); Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996).  State law instructional 
errors rarely form the basis for federal habeas relief.  Estelle, 502 U.S. at 71-72.   
    Petitioner’s claims are not supported by Michigan law or the state-court record.   When 
instructing the jury, the trial court stated that “defendant claims that he acted lawfully to defend 
himself and/or another” and that the jury should consider, among other things, that “when he 
acted, the defendant must have honestly and reasonably believed that he and/or another were in 
danger.”  (ECF No. 17-8, PageID.1037.)  Under Michigan law, both self-defense and defense-of-
others require the same showing of an honest and reasonable belief of danger.  See People v. 
Escalona-Martinez, No. 283067, 2009 WL 30463, at *1 (Mich. Ct. App. Jan. 6, 2009) (“The 
elements of self-defense or defense of others are as follows: (1) the defendant honestly and 
reasonably believed there was danger; (2) the danger amounted to serious bodily harm or death; 
(3) the defendant’s actions at the time were reasonably necessary for self-defense or defense of 
others; and (4) the defendant was not the initial aggressor.”); see also People v. Singh, No. 

312421, 2013 WL 6124224, at *3 (Mich. Ct. App. Nov. 21, 2013) (“The affirmative defenses of 
self-defense and defense of others apply if the defendant ‘honestly and reasonably believes that 
the use of deadly force is necessary to prevent the imminent death of or imminent great bodily 
harm to himself or herself or to another individual.’ ”). Because the jury instructions correctly 
conveyed  the  law,  Petitioner  cannot  establish  that  the  instructions  rendered  the  trial 
fundamentally unfair.                                                     
 C.  Ineffective Assistance of Trial Counsel Claim                       
    In his fourth claim, Petitioner asserts that defense counsel was ineffective for failing to 
object to the jury instructions.  The state trial court considered and rejected this claim under 

Michigan Court Rule 6.508(D)(3)(a) and (b).  Again, the Court shall review the claim de novo.   
    Given this Court’s decision that the jury instructions were appropriate under state law and 
did not render the trial fundamentally unfair, Petitioner cannot establish that trial counsel erred 
and/or that he was prejudiced by counsel’s conduct.  Attorneys do not provide constitutionally 
ineffective assistance for electing not to take futile actions, Richardson v. Palmer, 941 F.3d 838, 
857 (6th Cir. 2019) (citing Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000)), or for 
“failing to raise . . . meritless arguments.” Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999); see 
also Downs v. United States, 879 F.3d 688, 691 (6th Cir. 2018); Kelly v. Lazaroff, 846 F.3d 819, 
831 (6th Cir. 2017).  Petitioner’s ineffective assistance of trial counsel claim has no merit.  
 D.  Ineffective Assistance of Appellate Counsel Claim                   
    Lastly, Petitioner contends that he was denied a meaningful direct appeal by appellate 
counsel because he was not provided with copies of the trial transcripts to prepare his own pro 
per supplemental Standard 4 brief on appeal.  He also argues appellate counsel was ineffective 
for failing to raise the claims asserted in his post-conviction motion for relief from judgment.  

The trial court denied both claims on the merits.  The trial court’s decision is neither contrary to 
Supreme Court precedent nor an unreasonable application of federal law.   
    With respect to the trial transcripts issue, Petitioner fails to state a claim upon which 
relief  can  be  granted.  A  criminal  defendant  has  no  federal  constitutional  right  to  self-
representation on direct appeal from a criminal conviction.  Martinez v. Court of Appeal of 
California,  528  U.S.  152,  163  (2000).    This  is  because  the  rights  protected  by  the  Sixth 
Amendment, including the right to self-representation, are rights that are available to prepare for 
trial and at the trial itself.  However, “[t]he Sixth Amendment does not include any right to 
appeal.”    Id.  at  160.    The  Supreme  Court  also  rejected  the  idea  that  the  “right  to  self-

representation on appeal . . .  [could] be grounded in the Due Process Clause [of the Fourteenth 
Amendment because,] [u]nder the practices that prevail in the Nation today, however, we are 
entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient 
concern to conclude that a constitutional right of self-representation is a necessary component of 
a fair appellate proceeding.” Id. at 161.                                 
    Thus, there is no “constitutional entitlement to submit a pro se appellate brief on direct 
appeal from a criminal conviction in addition to a brief submitted by [appellate] counsel.” See 
McMeans v. Brigano, 228 F. 3d 674, 684 (6th Cir. 2000).  By accepting the assistance of 
counsel, the criminal appellant waives his or her right to present pro se briefs on direct appeal. 
Myers v. Johnson, 76 F. 3d 1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. 
Supp. 2d 866, 881 (S.D. Ohio 1999); aff’d in part, vacated in part on other grds, 262 F. 3d 615 
(6th Cir. 2001) (finding defendant who was represented by counsel and also sought to submit pro 
se brief upon appeal did not have right to such hybrid representation).   
    Because Petitioner chose to be represented by appellate counsel, any failure by appellate 

counsel to provide petitioner with the trial transcripts so that he could prepare his own pro se 
brief did not violate petitioner’s constitutional rights.  See U.S. v. Dierling, 131 F.3d 722, 734, n. 
7 (8th Cir. 1997); Foss v. Racette, No. 1:12-CV-0059, MAT 2012 WL 5949463, * 4 (W.D.N.Y. 
Nov. 28, 2012); see also Willis v. Lafler, No. 05-74885, 2007 WL 3121542, * 18 (E.D. Mich. 
Oct. 24, 2007) (finding petitioner not entitled to habeas relief based upon trial court’s failure to 
rule  on  petitioner’s  post-trial  motion  to  compel  copies  of  transcripts  and  videotapes  when 
petitioner was represented by appellate counsel).  Therefore, Petitioner is not entitled to relief on 
this claim.                                                               
    Further, appellate counsel was not ineffective for failing to raise the claims asserted in 

Petitioner’s  post-conviction  motion  for  relief  from  judgment.    It  is  true  that  the  Sixth 
Amendment guarantees a defendant the right to the effective assistance of appellate counsel. 
Evitts v. Lucey, 469 U.S. 387, 396-397 (1985); Halbert v. Michigan, 545 U.S. 605, 609-10 
(2005). But court appointed appellate counsel does not have a constitutional duty to raise every 
non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). A 
habeas court reviewing an ineffective-assistance-of-appellate-counsel claim must defer twice: 
first to appellate counsel’s decision not to raise an issue, and secondly, to the state court’s 
determination that appellate counsel was not ineffective. Woods v. Etherton, 578 U.S. 113, 119 
(2016) (per curiam).  Petitioner’s appellate attorney did not perform deficiently by not raising the 
issues presented in his motion for relief from judgment.  For all of the reasons stated above, 
Petitioner has not shown that any of the claims that he wanted his appellate counsel to raise on 
direct  review  were  meritorious.  “[A]ppellate  counsel  cannot  be  found  to  be  ineffective  for 
‘failure to raise an issue that lacks merit.’ ”  Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 
2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).  Therefore, counsel was 

not ineffective in failing to raise them.                                 
                  IV. CERTIFICATE OF APPEALABILITY                       
    The Court declines to grant a certificate of appealability because Petitioner has not made 
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).  In addition, 
reasonable jurists could not disagree with the Court’s resolution of Petitioner’s constitutional 
claims, nor conclude that the claims deserve encouragement to proceed further. Miller-El v. 
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).  
Therefore, the Court will deny a certificate of appealability.            
                           V. ORDER                                      

    Based upon the foregoing, The Court:                                 
    (1) DENIES WITH PREJUDICE the petition for a writ of habeas corpus;  
    (2) DENIES a certificate of appealability; AND                       
    (3) DENIES Petitioner leave to appeal in forma pauperis.             
    ORDERED.                                                             

                                  s/ Victoria A. Roberts                 
                                  VICTORIA A. ROBERTS                    
                                  United States District Judge           

Dated:  July 10, 2023