Head v. Christiansen

                UNITED STATES DISTRICT COURT                             
                EASTERN DISTRICT OF MICHIGAN                             
                      SOUTHERN DIVISION                                  
MARK ANTHONY HEAD,                                                       

     Petitioner,                 Case No. 18-12416                       
                                 Honorable Laurie J. Michelson           
v.                                                                       

J. CHRISTIANSEN, Warden,                                                 

     Respondent.                                                         

                OPINION AND ORDER DENYING                                
     AMENDED PETITION FOR WRIT OF HABEAS CORPUS [8]                      
    Mark Anthony Head was convicted of attempted second-degree home invasion 
and conspiracy to commit second-degree home invasion for kicking down the door of 
a stranger’s home in Harrison Township, Michigan. Head entered the home for a 
short period of time before exiting without taking anything. He was accompanied by 
his then-girlfriend.                                                      
    After appealing his conviction—and returning to state court a second time to 
seek relief from judgment—Head filed an amended petition for a writ of habeas 
corpus in this Court. For the reasons that follow, the Court denies the writ. 

    The Court primarily relies on the facts as recited by the Michigan Court of 
Appeals on Head’s direct appeal of his conviction. See Wagner v. Smith, 581 F.3d 410, 
413 (6th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)); Thompson v. Keohane, 516 U.S. 99, 
102 (1995) (“The statute governing federal habeas corpus proceedings, 28 U.S.C. 
§ 2254, directs that, ordinarily, state-court fact findings ‘shall be presumed to be 
correct.’”).                                                              
    Head and his then-girlfriend, Heather Marie Glidden, were driving his cousin’s 

truck in Harrison Township, Michigan, when they pulled into a driveaway. See People 
v. Glidden, No. 329086, 2017 WL 1010277, at *1 (Mich. Ct. App. Mar. 14, 2017). Video 
footage from the homeowner’s outdoor security cameras shows that, “[w]hile Head 
initially waited in the truck, Glidden approached the front door of the house and spent 
a few minutes ringing the doorbell, knocking on the door, looking in a nearby window, 
and knocking on the window. After a few minutes, Glidden returned to the truck, and 
Head approached the house. He devoted the next few minutes to knocking on the 

door, attempting to tamper with a security camera, walking around the exterior of 
the house, and peering in windows.” Id.                                   
    “Eventually, [Head] returned to the front door, where he proceeded to kick the 
front door 17 times until the door gave way and he gained entry.” Id. The homeowner 
testified that the house is equipped with a “very loud internal alarm that sound[s] 
after 30 seconds if not de[activated] on entry.” Id. “Head entered the home briefly, 

but then quickly exited when the alarm sounded. Defendants then drove away in 
their truck. No property was taken from the house.” Id.                   
    The jury ultimately convicted Head of attempted home invasion in the second 
degree and conspiracy to commit second-degree home invasion. (ECF No. 16-14, 
PageID.962.) Head was sentenced to concurrently serve one to five years for the 
attempted home-invasion conviction and nine to fifteen years for the conspiracy 
conviction. (ECF No. 16-15, PageID.988.)                                  
    On direct appeal, Head argued that (1) his conviction must be vacated because 

there was no evidence of intent to commit a larceny and (2) his defense counsel was 
ineffective for failing to request a jury instruction on the lesser-included charge of 
breaking and entering without permission. The Michigan Court of Appeals rejected 
these arguments. See Glidden, 2017 WL 1010277, at *1. Head raised the same two 
claims  and  added  a  third  ineffective-assistance-of-appellate  counsel  claim  in  an 
application for leave to appeal in the Michigan Supreme Court. On September 12, 
2017, the Michigan Supreme Court denied leave to appeal. See People v. Head, 901 

N.W.2d 380 (Mich. 2017).                                                  
    Head then turned to this Court, raising the three claims that he presented to 
the Michigan Supreme Court. (ECF No. 1.) He simultaneously filed a motion for a 
stay and abeyance of his habeas petition, indicating that he wanted to exhaust 
additional claims in state court. (ECF No. 3.) The Court granted his request and 
administratively closed the case. (ECF No. 6.)                            

    In 2020, Head returned to federal court and filed an amended petition raising 
claims of insufficient evidence, ineffective assistance of trial and appellate counsel, 
and violations of the Due Process Clause and the Confrontation Clause. (ECF No. 8.) 
The Warden opposes the petition. (ECF No. 15.)                            
    Before the Court considers the substance of Head’s petition, a word on the 
standard.                                                                 

    The Antiterrorism and Effective Death Penalty Act (“AEDPA”) (and 28 U.S.C. 
§ 2254 in particular) “confirm[s] that state courts are the principal forum for asserting 
constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 
103 (2011); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011). So to obtain relief 
in federal court, habeas petitioners who challenge “a matter ‘adjudicated on the 
merits in State court’ [must] show that the relevant state court ‘decision’ (1) ‘was 
contrary to, or involved an unreasonable application of, clearly established Federal 

law,’ or (2) ‘was based on an unreasonable determination of the facts in light of the 
evidence presented in the State court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 
1191 (2018) (quoting 28 U.S.C. § 2254(d)). “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, 562 U.S. at 101. 
And a state court’s factual determinations are presumed correct on federal habeas 

review, 28 U.S.C. § 2254(e)(1), with review being “limited to the record that was 
before the state court.” Cullen, 563 U.S. at 181. But if the state courts did not 
adjudicate a claim “on the merits,” “AEDPA . . . does not apply and [this Court] will 
review the claim de novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).  
    So before proceeding, the Court must determine if the state courts adjudicated 
Head’s claims on the merits.                                              
    Head’s  sufficiency-of-the-evidence  claim  and  ineffective-assistance-of-trial-
counsel claim based on failure to ask for a lesser-offense instruction were raised in 
his direct appeal, and the Michigan Court of Appeals issued a decision on the merits. 

See generally Glidden, 2017 WL 1010277. So the Court must defer to that decision. 
    Head’s  ineffective-assistance-of-counsel  claim  based  on  the  preliminary 
examination, his claim that he was not given proper notice of his habitual-offender 
enhancement, and his Confrontation Clause claims were raised in his motion for 
relief from judgment after his direct appeal and adjudicated on the merits by the trial 
court. (ECF No. 16-16, PageID.994 (“Each of the grounds argued by defendant in his 
brief  and  motion  are  either  factually  or  legally  in  error—or  both.”).)  But  when 

addressing  whether  Head  was  properly  served  with  the  habitual-offender 
enhancement, the trial court additionally noted “the defendant waived his argument 
by not raising it on direct appeal.” (ECF No. 16-16, PageID.996.) The Michigan Court 
of Appeals later denied leave to appeal, stating “defendant has failed to establish that 
the  trial  court  erred  in  denying  the  motion  for  relief  from  judgment.”  (Id.  at 
PageID.1087.) And the Michigan Supreme Court denied leave to appeal “because the 

defendant has failed to meet the burden of establishing entitlement to relief under 
[Michigan Court Rule] 6.508(D).” (ECF No. 16-20, PageID.1685.) That rule states in 
part,  “The  defendant  has  the  burden  of  establishing  entitlement  to  the  relief 
requested. The court may not grant relief to the defendant if the motion . . . alleges 
grounds for relief, other than jurisdictional defects, which could have been raised on 
appeal from the conviction and sentence or in a prior motion under this subchapter, 
unless  the  defendant  demonstrates . . . good  cause . . . and . . . actual  prejudice[.]” 
Mich. Ct. R. 6.508(D)(3)(a)–(b).                                          
    The Court finds that these claims were decided on the merits. Though the 

Michigan Supreme Court referenced Michigan Court Rule 6.508(D), the Sixth Circuit 
has found that such summary orders “can refer to the petitioner’s failure to establish 
entitlement to relief either on the merits or procedurally[.]” Guilmette v. Howes, 624 
F.3d 286, 290 (6th Cir. 2010) (en banc). And “looking to the last reasoned state court 
opinion,” the trial court only mentioned waiver as to the habitual-offender claim. See 
Strong v. Nagy, 825 F. App’x 239, 242 (6th Cir. 2020). In doing so, it did not cite 
Michigan Court Rule 6.508 and did not purport to decide the issue on that basis. And 

it provided substantial reasoning on the merits of that claim.            
    So in considering Head’s claims as to sufficiency-of-the-evidence, ineffective-
assistance-of-trial-counsel, issues with service of the habitual-offender enhancement, 
and the Confrontation Clause, the Court will focus on whether the state court’s 
decision  “was  contrary  to,  or  involved  an  unreasonable  application  of,  clearly 
established Federal law[.]” See 28 U.S.C. § 2254. And because the Michigan Supreme 

Court did not provide reasons for its holding on direct appeal or on the motion for 
relief from judgment, the Court will “look through the unexplained decision” to the 
Michigan Court of Appeals’ and Michigan trial court’s decisions which “provide a 
relevant rationale[.]” See Wilson, 138 S. Ct. at 1192.                    
    But  as  no  state  court  decided  Head’s  ineffective-assistance-of-appellate-
counsel claim on the merits, the Court will review that claim de novo. See Bies, 775 
F.3d at 395.                                                              


    The Court addresses each of Head’s five claims in turn.              
                     Sufficiency of the Evidence                         
    Head argues that there was insufficient evidence of his intent to commit 
larceny. Intent to commit larceny is an element of second-degree home invasion. See 
People v. Dunigan, 831 N.W.2d 243, 247 (Mich. Ct. App. 2013); Mich Comp. Laws 
§ 750.110a(3). “The specific intent necessary to commit larceny is the intent to steal 

another person’s property.” People v. Cain, 605 N.W.2d 28, 43 (Mich. Ct. App. 1999). 
Importantly, “[i]ntent to commit larceny cannot be presumed solely from proof of the 
breaking and entering.” People v. Uhl, 425 N.W.2d 519, 521 ( Mich. Ct. App. 1988). 
“However, intent may reasonably be inferred from the nature, time and place of 
defendant’s acts before and during the breaking and entering.” Id.        
    Head’s claim that there was insufficient evidence of his intent to commit 

larceny falls within the scope of the Due Process clause. The Supreme Court has held 
“that the Due Process Clause [of the Fourteenth Amendment] protects the accused 
against  conviction  except  upon  proof  beyond  a  reasonable  doubt  of  every  fact 
necessary to constitute the crime with which [the defendant] is charged.” In re 
Winship, 397 U.S. 358, 364 (1970). When a petitioner, like Head, challenges the 
sufficiency of the evidence underlying his conviction, the Court must view the trial 
testimony and exhibits “in the light most favorable to the prosecution” and determine 
whether “any rational trier of fact could have found the essential elements of the 
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see 

also Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009); Thomas v. Stephenson, 898 
F.3d 693, 698 (6th Cir. 2018). This 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.” Davis v. Lafler, 658 
F.3d 525, 531 (6th Cir. 2011) (internal quotations omitted).              
    On  habeas  review,  Head  faces  a  steeper  hurdle.  “[T]he  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 [appellate court’s] consideration of the trier-of-fact’s verdict, as dictated by 
AEDPA.” Id. (citations omitted). In other words, the Michigan Court of Appeals’ 
decision on this claim must be contrary to or an unreasonable application of Jackson 
v. Virginia.                                                              
    The Michigan Court of Appeals found that there was a sufficient basis for the 

jury to conclude that Head intended to commit larceny. In particular, it found that 
“defendants went to a stranger’s house at a time when the house was unoccupied”; 
“[t]hey drove a borrowed pick-up truck in which it would be possible to transport 
stolen goods”; “they parked their vehicle facing the street, as though poised for easy 
exit”; “both defendants took turns looking in windows and repeatedly knocking on the 
door, from which it can be inferred that they were verifying that the home was in fact 
unoccupied”; and, while Head kicked down the door, his co-defendant “sat in the 
driver’s seat of the truck, positioned for a quick exit from the property.” Glidden, 2017 
WL 1010277, at *1.                                                        

    The Michigan Court of Appeals did not unreasonably apply federal law in 
concluding that these facts showed that Head intended to commit larceny. For one, 
Head does not attack many of the factual predicates for the Court of Appeals’ decision. 
Instead, he spends a significant time discussing alternate theories for this evidence. 
Indeed, his co-defendant testified to many of these other theories. (ECF No. 16-14, 
PageID.866 (co-defendant testifying that she saw a boat trailer in the yard by the 
house in question that she wished to purchase, leading her to walk up to the home 

where she heard “voices . . . it sounded like somebody was yelling for help”); cf. id. at 
PageID.809 (homeowner testifying that she had not placed any ads in the paper 
indicating she was selling something at the home); id. at PageID.822 (homeowner 
testifying house next door had a boat trailer but it was not for sale).)  
    But this Court may not reweigh the competing evidence offered at trial. See 
Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011). It may only determine whether the 

Michigan  Court  of  Appeals  acted  unreasonably  in  determining  that  there  was 
sufficient evidence of intent. And based on the uncontested facts supporting the state 
court’s decision—that Head verified the house was unoccupied by looking through 
windows, that he drove a borrowed pick-up truck to the house, and that he and his 
co-defendant took turns waiting in the truck while the other checked the home—the 
jury had a sufficient basis to find that Head intended to steal another’s property at 
the time he entered the home.                                             
    Head emphasizes that the prosecution’s theory does not add up because he had 

thirty seconds inside the house before the alarm supposedly went off (more on that 
later), yet he did not take anything even though a laptop and a television were within 
reach. (ECF No. 8, PageID.211 (“[O]ne must surmise that an individual intent upon 
larceny  would  grab  these  highly  valuable  and  easily  fungible  electronics  before 
exiting.”).)                                                              
    But this argument misses the mark. For one, someone can have an intent to 
commit larceny but never actually steal anything. Indeed, those are two distinct ways 

to  commit  second-degree  home  invasion.  See  Mich.  Comp.  Laws  §  750.110a(3) 
(providing that both “[a] person who breaks and enters a dwelling with intent to 
commit a felony, larceny or assault in the dwelling” and “a person who breaks and 
enters a dwelling or enters a dwelling without permission and, at any time while he 
or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or 
assault” are “guilty of home invasion in the second degree”). So one may intend to 

steal items—but not be able to accomplish this for various reasons—and still violate 
the statute. For example, if an individual was surprised or interrupted by an alarm 
or a resident upon entering a home, they may bolt without taking anything, including 
items that, in hindsight, appear easy to move and within reach. In other words, an 
individual’s acts within 30 seconds of entering a home or their panicked response to 
an alarm does not preclude finding that the individual intended to steal things when 
entering the home. Or perhaps the individual was looking for something in particular, 
which is why they did not act immediately. Either way, the Court disagrees that there 
was insufficient evidence of intent merely because Head did not take anything within 

moments of entering the home.                                             
    And two, the jury was well aware that Head and his co-defendant did not take 
anything and that several items were apparently within reach in the front room of 
the house. (See, e.g., ECF No. 16-14, PageID.827 (homeowner testifying that she did 
not notice that anything had been taken from the home).) So it was able to consider 
that fact when determining whether Head had the requisite intent. Apparently—and 
perhaps for the reasons noted by the Michigan Court of Appeals—it still found he 

possessed such an intent. This does not result in a Due Process violation. 
    Head  also  focuses  on  the  alarm,  which  he  describes  as  “[c]entral  to  the 
prosecution’s  theory  of  intent[.]”  (ECF  No.  8,  PageID.212.)  It  appears  that  the 
prosecution’s theory was that Head left the house without taking anything because 
he was surprised by an alarm. But according to Head, if there was insufficient 
evidence that the alarm actually went off, then the prosecution’s theory falls apart. 

In other words, if the alarm did not go off, he would have had the opportunity to 
steal—and the fact that he did not shows he had other intentions.         
    Head contends that there was no concrete evidence that the alarm went off. 
But an officer with the Macomb County Sheriff’s Department testified that the 
department  was  “dispatched  [to  the  residence]  for  an  alarm—residential  alarm 
sensory motion.” (ECF No. 16-14, PageID.834.) And the homeowner stated that the 
alarm company called her and sent the police to her house, which presumably was a 
result of the alarm going off. (Id. at PageID.830.) So there was plenty of evidence for 
a jury to infer that the alarm went off while Head was in the home.       

    In conclusion, the Michigan Court of Appeals did not unreasonably apply 
Jackson v. Virginia in finding that there was sufficient evidence for a jury to find 
Head intended to commit larceny when entering a stranger’s home. So the Court will 
not grant habeas relief on this issue.                                    
                Ineffective Assistance of Trial Counsel                  
    Head also argues that his trial counsel was ineffective for two reasons: he failed 
to ask for a lesser-included-offense jury instruction and he did not appear at Head’s 

preliminary examination.                                                  
    An ineffective-assistance-of-counsel claim has two components. A petitioner 
must show that counsel’s performance was deficient, and that the deficiency resulted 
in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). An 
attorney’s  performance  is  judged  under  a  “highly  deferential”  reasonableness 
standard. Id. at 688–89. And prejudice occurs when there is  “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have 
been  different.”  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. 
Simply put, the Strickland standard is “difficult to meet.” White v. Woodall, 572 U.S. 
415, 419 (2014) (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.” Harrington, 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). Thus, “the question is not 
whether counsel’s actions were reasonable,” but whether “there is any reasonable 
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 
U.S. at 105.                                                              
    Start with Head’s claim that trial counsel was deficient in not requesting jury 

instructions on a lesser-included offense. The Michigan Court of Appeals found that 
though Head “would have been entitled to a lesser-included instruction” of breaking 
and entering without permission—a misdemeanor with no intent element—he had 
not “overcome the presumption” that his attorney’s decision not to request such an 
instruction was a matter of trial strategy to “force the jury into an all or nothing 
decision.” Glidden, 2017 WL 1010277, at *6.                               

    The Court finds that this decision was not unreasonable under Strickland. As 
stated, the Court accords deference to trial counsel’s decisions and may only analyze 
whether there was “any reasonable argument” for counsel’s choice. Harrington, 562 
U.S. at 105. Here, the Court agrees with the state court that taking an all-or-nothing 
approach is a reasonable basis for trial counsel to not ask for a breaking-and-entering 
instruction. And defense counsel’s closing remarks appear to corroborate such a 
strategy. As Head himself notes, during closing argument, defense counsel stated, “I 
do believe there were two crimes committed. The problem is that those two crimes 
have nothing to do with your deliberations. Those two crimes are the kicking of the 

door, which we would commonly refer to as malicious destruction of property and 
that’s not for you to decide. And the other crime would be going into the house, which 
is trespassing, which is also not to be decided.” (ECF No. 16-14, PageID.908–909.) In 
other words, defense counsel argued to the jury that whether Head was guilty of other 
crimes was not at issue—all that was at issue was whether he was guilty of second-
degree  home  invasion,  which  required  intent.  Such  an  argument  would  be 
undermined if the jury was also required to decide whether Head committed a lesser 

offense. And it was not unreasonable for trial counsel to place intent squarely at issue 
where there was no direct evidence of intent and nothing was taken from the home. 
The Court acknowledges that an “all-or-nothing” strategy carries some risk, and in 
hindsight, that risk can appear to be unjustified. But “it cannot be the case that every 
risky trial strategy, upon failing, amounts to constitutionally ineffective counsel.” 
Kelly v. Lazaroff, 846 F.3d 819, 830 (6th Cir. 2017). Given the deference this Court 

owes to the Michigan Court of Appeals and trial counsel, it cannot be said that such 
a strategy was “deficient” under Strickland nor that the Court of Appeals acted 
contrary  to  federal  law  in  so  concluding. See id. (“Because  there  was  sufficient 
evidence in the record to support trial counsel’s decision to pursue an ‘all-or-nothing’ 
defense,  trial  counsel’s  performance  did  not  fall  below  the  bar  of  professionally 
competent assistance.”). So this claim will be denied.                    
    Head’s second issue with counsel’s performance involves counsel failing to 
appear for Head’s preliminary examination. Head posits his claim under the Supreme 
Court’s  decision  in  U.S.  v.  Cronic,  466  U.S.  648,  659  (1984).  There,  the  Court 

discussed how “the complete denial of counsel” at a “critical stage” of a defendant’s 
criminal proceedings would be constitutional error, and prejudice may be presumed 
if this occurs. Id.                                                       
    However, as the Michigan trial court stated in its evaluation of this claim, 
Head was not completely denied counsel at his preliminary examination. His counsel 
appeared for the initial preliminary examination on March 4, 2015 (ECF No. 16-8, 
PageID.545), but was unavailable for the second day of the examination, so substitute 

counsel  appeared  for  Head  (ECF  No.  16-9,  PageID.566).  Contrary  to  Head’s 
argument,  substitute  counsel  cross-examined  the  officer  in  charge  and  the 
homeowner at the preliminary examination and even moved to dismiss the charges 
based on the prosecution’s failure to adequately present all elements of second-degree 
home invasion. (ECF No. 16-9, PageID.567–568, 577, 580–581, 584.) Head identifies 
no other deficiency as to substitute counsel’s performance during the preliminary 

examination. As the trial court stated, “[s]ubstitute counsel was well qualified to 
conduct  an  examination.”  (ECF  No.  16-16,  PageID.996.)  So  Head  was  afforded 
counsel at his preliminary examination and has not shown, nor argued, that this 
counsel was deficient in any way.                                         
    Perhaps making a different claim, Head argues that the trial court “forced” 
him to proceed with substitute counsel. (ECF No. 8, PageID.224.) The record shows a 
fuller story. When the judge asked Head whether it was okay for substitute counsel 
to appear, Head initially responded “I was wanting my attorney to be here.” (ECF No. 
16-9, PageID.566.) The judge again asked, “Is that okay with you, sir, if it’s not okay 

with you then we’ll adjourn this and we will charge some costs to the absent people.” 
(Id.) Head responds, “Uh – it’s okay.” (Id.) The judge then says, “You know, it’s up to 
you. I don’t want to force you into something that you don’t want to do. If you’re not 
happy with this attorney, then we’ll set it over another time.” (Id. at PageID.566–
567.)  Head  again  responds,  “Well,  I  would  like  to  have  my  attorney.”  (Id.  at 
PageID.567.) The judge continues, “Okay, if we’re going to adjourn, we’re gonna 
assess $200 cost against Mr. Head’s absent attorney.” (Id.) Mr. Head interrupts, 

“Okay – I can go with this attorney, sir.” (Id.) Head argues that this record indicates 
that he “was made to believe that $200 assessed his absent attorney would be passed 
on to him as he was paying his attorney and that he was uselessly delaying the court 
proceedings.” (ECF No. 8, PageID.225.)                                    
    The record is not a pinnacle of clarity. But it is clear that the judge asked Head 
several times whether he wanted to proceed with substitute counsel. And the judge 

also stated that the costs were to be assessed to “the absent people” and Head’s 
“absent attorney.” The record does not show that the judge indicated to Head that 
such costs would be passed on to him or that he was “uselessly delaying” proceedings. 
Indeed, the judge told Head he did not want to “force” him into something he did not 
want to do and that the decision was up to him.1 So the Court does not agree that the 
trial court improperly coerced Head to move forward with substitute counsel.  
    And to the extent that Head is arguing that he was deprived his right to 

counsel of choice—an argument he did not clearly make to the state courts—the Court 
denies the claim for similar reasons. Namely, that Head has not shown the trial court 
prevented him from proceeding with his counsel of choice. See Morris v. Slappy, 461 
U.S.  1,  11  (1983)  (“Not  every  restriction  on  counsel’s  time  or  opportunity  to 
investigate or to consult with his client or otherwise to prepare for trial violates a 
defendant’s  Sixth  Amendment  right  to  counsel. . . . [O]nly  an  unreasoning  and 
arbitrary insistence upon expeditiousness in the face of a justifiable request for delay 

violates the right to the assistance of counsel.”). Thus, Head’s ineffective-assistance 
claim  as  to  his  counsel  not  appearing  at  the  second  day  of  his  preliminary 
examination is also denied.                                               
                      Habitual-Offender Notice                           
    Head next argues that the prosecution failed to provide him with advance 
notice of his fourth-offense habitual-offender enhancement.               



    1 Head provides an affidavit stating that he was told a number of things off-
the-record by the judge and substitute counsel that led him to believe he could not 
freely choose to not move forward with substitute counsel. This affidavit is dated 
February 19, 2020, and thus, could not have been considered by the state trial court 
in its review of this claim. (See ECF No. 8, PageID.267; ECF No. 16-16, PageID.998 
(trial court order on motion for relief from judgment dated January 2, 2019).) As such, 
the Court will not consider it on habeas review. See Cullen v. Pinholster, 563 U.S. 
170, 181–82 (2011) (“We now hold that review under § 2254(d)(1) is limited to the 
record that was before the state court that adjudicated the claim on the merits.”). 
    The Warden argues that this claim was procedurally defaulted. (ECF No. 15, 
PageID.437.)  The  Court  finds  that  the  merits  of  this  claim  are  more  “easily 
resolvable” than the procedural issues. Thus, the Court will resolve the issue on the 

merits. See Smith v. Nagy, 962 F.3d 192, 207 (6th Cir. 2020) (“[W]e 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.”). 
    Head raised this argument in his motion for relief from judgment, which the 
trial court rejected in part because “the argument [was] shown to be false on the face 
of the records[.]” (ECF No. 16-16, PageID.994.) The state court’s decision is neither 
contrary to Supreme Court precedent nor an unreasonable application of federal law. 

    For starters, Head’s claim that he received inadequate notice of the habitual 
offender enhancement under Michigan law is not cognizable upon federal habeas 
review. See, e.g., Tolbert v. LeCureaux, 811 F. Supp. 1237, 1240–41 (E.D. Mich. 1993); 
see also Threat v. Harry, No. 2:17-CV-12465, 2018 WL 2431707, *7 (E.D. Mich. May 
30, 2018) (same); MacArthur v. Curtin, No. 13-CV-11307, 2014 WL 3767835, *15–16 
(E.D. Mich. July 31, 2014) (collecting cases). It is well-settled that habeas relief may 

not be based upon a perceived violation of state law. Estelle v. McGuire, 502 U.S. 62, 
67–68, 72 (1991).                                                         
    And even considering this claim further, the record does not support Head’s 
argument that he was “not aware of the Prosecution’s intent to seek a Habitual 
Offender 4th enhancement to his sentence.” (See ECF No. 8, PageID.232.) While due 
process requires that a defendant be given reasonable notice and an opportunity to 
be heard on such an enhancement, see Oyler v. Boles, 368 U.S. 448, 452 (1962), the 
state court docket shows that the prosecutor filed a habitual-offender notice with the 
trial court on April 2, 2015, together with the information and list of known witnesses. 

(ECF No. 16-1, PageID.469.) And Head waived a reading of the charges during his 
arraignment. (Id.)  Further, defense counsel acknowledged at sentencing that “we 
already knew all along that the habitual fourth, Your Honor, I understand it is a 
hundred and fourteen months[.]” (ECF No. 16-15, PageID.986.) So it does not appear 
that the habitual-offender enhancement was sprung on Head or his counsel. 
    Moreover, Head had the opportunity to challenge his sentencing enhancement 
during the proceedings before the state trial court. Head’s habitual-offender status 

was discussed in some detail during sentencing, and his attorney did not dispute the 
application of the enhancement. (See ECF No. 16-15, PageID.987 (“I don’t have an, I 
can’t quarrel with the guidelines. They’re scored accurately.”).) So it appears Head 
was afforded what due process requires—reasonable notice and an opportunity to be 
heard. See Oyles, 368 U.S. at 452; see also Brown v. Nagy, No. 19-1847, 2019 WL 
7761722, *8 (6th Cir. Dec. 16, 2019) (denying a certificate of appealability on similar 

habitual-offender-notice claims). So the Court finds that Head has not shown his due-
process rights were violated in connection with the habitual-offender enhancement.  
                        Confrontation Clause                             
    Head also argues that the trial court violated his Sixth Amendment right to 
confrontation when it allowed the homeowner to testify, “[t]he alarm company called 
me and said there had been a break in.” (ECF No. 16-14, PageID.808.) Head argues 
he  was  denied  an  opportunity  to  cross-examine  a  spokesperson  from  the  alarm 
company on this statement. (ECF No. 8, PageID.236.)                       
    In  Crawford  v.  Washington,  the  Supreme  Court  held  that  out-of-court 

statements that are “testimonial” in nature may not be admitted at trial unless the 
witness is unavailable to testify and the defendant had a prior opportunity for cross-
examination. 541 U.S. 36, 68 (2004). “It is the testimonial character of the statement 
that separates it from other hearsay that, while subject to traditional limitations 
upon  hearsay  evidence,  is  not  subject  to  the  Confrontation  Clause.”  Davis  v. 
Washington, 547 U.S. 813, 821 (2006).                                     
    For a few reasons, Head’s Confrontation Clause claim fails. For one, this 

statement was not used for the truth of the matter asserted. The transcript shows 
that this testimony was elicited to show that the homeowner was at Cedar Point when 
she was notified by the alarm company that there had been a break in, and upon 
learning this, she was able to review the video footage on her phone. (ECF No. 16-14, 
PageID.808.) So it appears that this testimony was used for its effect on the listener—
the homeowner—and her subsequent actions of checking the video (a key piece of 

evidence in this case). As such, the Confrontation Clause “has no application” because 
the  statement  was  not  “offered  to  prove  the  truth  of  the  matter  asserted.”  See 
Williams v. Illinois, 567 U.S. 50, 57–58 (2012).                          
    Further,  this  statement  is  not  testimonial  in  nature.  See  Crawford  v. 
Washington, 541 U.S. 36, 51 (2004) (defining a testimonial statement as “a solemn 
declaration or affirmation made for the purpose of establishing or proving some fact” 
and finding that it includes “at a minimum . . . prior testimony at a preliminary 
hearing, before a grand jury, or at a former trial; and to police interrogations”). The 
alert from the alarm company was clearly sent during “an ongoing emergency” and 

was meant to assist the homeowner in addressing that emergency. See Davis v. 
Washington, 547 U.S. 813, 822 (2006) (“Statements are nontestimonial when made 
in the course of police interrogation under circumstances objectively indicating that 
the primary purpose of the interrogation is to enable police assistance to meet an 
ongoing emergency.”). And of course, unlike Davis, these statements were not made 
in the context of a police interrogation, making it even less likely that the “primary 
purpose [was] to prove past events that are potentially relevant to a later criminal 

trial.” See Ohio v. Clark, 576 U.S. 237, 244 (2015).                      
    Moreover, even if the Confrontation Clause was violated, the violation was 
harmless. See Delaware v. Van Arsdall, 475 U.S. 463, 684 (1986). To determine 
whether a Confrontation Clause violation is harmless, a court considers: “(1) the 
importance  of  the  witness’  testimony  in  the  prosecution’s  case;  (2)  whether  the 
testimony was cumulative; (3) the presence or absence of evidence corroborating or 

contradicting the testimony of the witness on material points; (4) the extent of cross 
examination otherwise permitted; and (5) the overall strength of the prosecution’s 
case.” Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir. 2009) (citing Van Arsdall, 
475 U.S. at 684).                                                         
    The homeowner’s statement about the alarm had little impact on the overall 
outcome of the case. For one, Head acknowledges that he “admitted” to the first two 
elements  of  second-degree  home  invasion:  breaking  and  entering.  (ECF  No.  8, 
PageID.206); see also Mich. Comp. Laws § 750.110a(3). So it is not clear how a 
statement that “there had been a break in” changes the calculus as to any fact 

otherwise at issue. Moreover, the prosecution had a strong case against Head even 
without this statement—namely, video surveillance footage of Head gaining forceful 
entry  into  the  home.  (ECF  No.  16-14,  PageID.816–817.)  And  to  the  extent  this 
testimony proves anything about whether the alarm went off, it would be cumulative 
to the officer’s testimony that he was dispatched to the house by the alarm company 
and the homeowner’s testimony that the alarm goes off 30 seconds after the door 
opens based on her personal experience. (ECF No. 16-14, PageID.806, 834.) Thus, 

even if the admission of this testimony violated the Confrontation Clause, Head is 
not entitled to relief because the admission could not have had a substantial and 
injurious effect on the jury’s verdict. So this claim will be denied.     
    Accordingly, Head’s related ineffective-assistance-of-counsel claim also fails 
because the admission of this evidence was harmless error. See Hall v. Vasbinder, 
563 F.3d 222, 236 (6th Cir. 2009) (“The prejudice prong of the ineffective assistance 

analysis subsumes the Brecht harmless-error review.”); Bell v. Hurley, 97 F. App’x. 
11, 17 (6th Cir. 2004). So habeas relief on the basis of the Confrontation Clause will 
be denied.                                                                
              Ineffective Assistance of Appellate Counsel                
    Finally, Head argues that his counsel on direct appeal was ineffective for 
failing to move for a new trial or a Ginther evidentiary hearing in the trial court to 
further  investigate  trial  counsel’s  ineffectiveness.  (ECF  No.  8,  PageID.226.)  It 
appears that this argument stems from the Michigan Court of Appeals’ decision on 
direct review, which stated, “Head did not file a motion for a new trial or a Ginther 

hearing, meaning that he failed to preserve his ineffective assistance of counsel 
claim.” Glidden, 2017 WL 1010277, at *3.                                  
    Before turning to the merits, the Court addresses the Warden’s procedural-
default  argument  based  on  Head’s  lack  of  exhaustion  in  the  same  way  it  did 
previously. The merits of this claim are straightforward and simpler to address than 
the procedural default, and thus, the Court will address the merits first. See Smith 
v. Nagy, 962 F.3d 192, 207 (6th Cir. 2020) (“[W]e 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.”).                
    It is unclear whether appellate counsel or trial counsel is to blame for the 
failure to file for a new trial or a Ginther hearing. The Michigan Court of Appeals 
clarified that unlike Head, his co-defendant did file a “timely motion for a new trial 
and a Ginther hearing in the lower court, raising her arguments related to counsel’s 

general distractedness as well as the claim that he performed unreasonably with 
respect to moving for a directed verdict.” Glidden, 2017 WL 1010277, at *3. Whether 
appellate counsel or Glidden herself made such a motion is unclear.       
    Regardless, even if appellate counsel was involved in the case at the time such 
a motion should be filed with the lower court, Head still has not shown that such an 
error was prejudicial. Appellate counsel did file a motion with the Michigan Court of 
Appeals to remand the case to the trial court so that counsel could move for a new 
trial and an evidentiary hearing on defense counsel’s alleged ineffectiveness. (ECF 
No. 16-18, PageID.1366.) The Michigan Court of Appeals denied the motion on the 

basis  that  further  factual  development  of  the  record  was  unnecessary.  (Id.  at 
PageID.1364.) So it appears that appellate counsel both attempted to correct any 
prior error in failing to move in the trial court and that, even if such a motion had 
been filed with the lower court, it may have been denied for similar reasons as the 
Court of Appeals provided. Thus, Head cannot show deficient performance or that but 
for the error, the outcome would have been different. Strickland, 466 U.S. at 687–89. 
    Further,  the  motion  for  a  new  trial  or  a  Ginther  hearing  would  be  in 

furtherance of Head’s claim that his trial counsel was ineffective for failing to request 
a lesser-included offense instruction. Glidden, 2017 WL 1010277, at *3 (“Head argues 
only that his trial counsel was ineffective for failing to request a jury instruction on 
a lesser included offense.”). As this Court has already found, Head could not show 
that  trial  counsel’s  actions  in  this  regard were deficient within the meaning of 
Strickland.  Thus,  any  failure  of  appellate  counsel  to  move  in  the  lower  court 

regarding that claim would not have affected the outcome of the proceedings because 
the claim was meritless. See Kelly, 846 F.3d at 831.                      
    So the Court will not grant relief on Head’s ineffective-assistance-of-appellate-
counsel claim either.                                                     
    For the foregoing reasons, the Court DENIES Head’s petition for a writ of 
habeas corpus. A separate order will issue on a certificate of appealability and 

proceeding in forma pauperis on appeal.                                   
    SO ORDERED.                                                          
    Dated: September 5, 2023                                             


                             s/Laurie J. Michelson                       
                             LAURIE J. MICHELSON                         
                             UNITED STATES DISTRICT JUDGE