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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DRAKILE LEROY JONES,
Case No. 22-cv-11824
Petitioner,
Honorable Robert J. White
v.
JEFFREY HOWARD,1
Respondent.
OPINION AND ORDER
GRANTING CONDITIONAL WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Drakile Leroy Jones has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254, through counsel, challenging his convictions for first-
degree felony murder, Mich. Comp. Laws § 750.316, armed robbery, Mich. Comp.
Laws § 750.529, and possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. (ECF Nos. 1, 2.)
This case explores the boundary between trial strategy and ineffective
assistance of counsel. Defense counsel are afforded great deference in how they
1 The proper respondent in a habeas case is the custodian of the facility where the
petitioner is incarcerated. See Rule 2(a), Rules Governing Section 2254 Cases.
choose to defend a case. The defense attorney, with consultation of his client, is in
the best position to decide which witnesses to call and which to forego; which
theories to advance and which to abandon; the decisions are numerous and complex.
These decisions form the basis of the definition of the term âtrial strategy.â On the
other hand, whatever the broad discretion afforded counsel in furtherance of âtrial
strategyâ encompasses, it cannot be premised upon mistakes of law and the failure
to investigate or prepare. A claim of âtrial strategyâ does not cure an injustice where
the ineffective assistance is so severe and pervasive that it undermines confidence in
the ultimate result.
The state court record in this case demonstrates that Jonesâs trial counsel (1)
misrepresented to the state trial court that the government had not disclosed critical
information to him (they did), (2) failed to conduct even a cursory review of those
critical materials, (3) proceeded with the trial after recognizing his error without
even requesting an adjournment or opportunity to review those materials, (4) then,
predictably, failed to attempt to impeach the primary government witness with
exculpatory information he didnât know he had, with (5) rules of evidence he did not
understand how to use. Jones didnât just deserve better â justice requires more.
Accordingly, the Court grants Jones a conditional writ of habeas corpus.
II. Background
On January 27, 2016, Phillip Pentecost was shot and killed in his driveway on
Minock Street in Detroit. He was pronounced dead at the scene from two gunshot
wounds -- one to the head, one to the abdomen. The two bullets were fired from the
same gun and determined to be from the 38 class of bullets.2
Justin Harris, Pentecostâs neighbor, called 911. He was found holding a shirt
to Harrisâs head when police arrived. Detroit police officer Christine Winans, one
of the first responding officers, noticed that a cellphone was on Pentecostâs chest.
She saw Harris place the phone in his pocket and start to walk away. Another officer
asked Harris if that was his phone. Harris said it was not and surrendered the phone
to the officer. Police later determined the phone belonged to Robert Carter.
Police arrested Carter on February 3, 2016. In total, Carter gave four
statements to police. The statements remained consistent on just a few points: Jones
and Carter went to Justin Harrisâs house on Minock Street on the night of the
shooting. At some point, someone shot Pentecost and drove away with his car.
Carterâs statements with respect to key elements - the shooterâs identity and the
extent of Carterâs, Jonesâs, and Harrisâs involvement in the crimes - changed with
each statement.
2 The 38 class of bullets includes .38 caliber, .380-, .357- and 9-millimeter. (ECF
No. 7-16, PageID.1764.)
First Statement: In his first statement, on February 3, 2016, 7:02 p.m., Carter
placed all the blame on a man he claimed not to know3 and maintained that he and
Jones were innocent bystanders. Carter told police that he and Jones were riding in
Jonesâs motherâs van when Jones stopped at a home on Minock Street. Three men
were inside the home. Jones and Carter stayed for only about five minutes. One of
the three men (Harris) walked Carter and Jones out onto the porch. The man looked
down the street and said, â[T]here goes the dude that owes me some money. I should
go down there and see if he has my money.â (ECF No. 2-1, PageID.82.)
The man walked down to the car, returned to the porch and said the other man
was asleep in the car. He said, âI should go and get my cheese,â then went into the
house and came out with a ski mask which he wore as a skullcap. (Id. at PageID.83.)
The man walked down to the car, a Chevrolet HHR. Jones and Carter trailed behind
but did not get close to the car. The man opened the door, pulled out the driver, and
held a gun to the driverâs head. The man reached into the driverâs pants pockets.
Then the gun went off. Jones and Carter ran back to the van and drove off. Carter
saw the HHR pulling out of the driveway as he and Jones were leaving. Carter also
stated that the shooter later called Jones âand told him not to call him anymore.â (Id.
at PageID.86.)
3 Carter did not identify this man by name in this statement. But, in his fourth
statement, Carter identified Justin Harris as the individual whose house he and Jones
visited and to whom Pentecost owed money.
Importantly, the jury never heard the evidence that Carter exonerated Jones in
his first statement.
Second Statement: Approximately three hours later, Carter gave a second
statement. In this statement, he continued to maintain that he and Jones were not
responsible for the shooting or the car theft but acknowledged more involvement
than originally stated. Carter admitted that when Harris went into his house to get a
ski mask, the man also retrieved a revolver. All three men walked to the HHR and,
when Harris pulled the driver out of the car, Carter went through the manâs pockets.
Carter and Jones then rifled through the contents of the HHR and Carter took a brown
leather jacket.4 Carter then heard a gunshot. He and Jones ran to the van and drove
away. Carter looked back and saw the HHR being driven down the street behind
them.
This is the second exculpatory statement, but again, the jury never heard it.
Third Statement: Approximately ninety minutes later, Carter gave a third
statement. In this version, Jones was the shooter. Carter stated that as the three men
walked to the HHR, the unknown man gave Jones the gun. After the driver was
pulled out of the car, Carter checked his pockets. Jones then shot the driver. Carter
4 This leather jacket was found in Carterâs home when police executed a search
warrant.
began running to the van and then heard a second gunshot. He saw Harris jump into
the HHR and drive away.
Jail calls between Carter and Williams: After Carterâs third statement but
before his fourth and final statement, Carter made a series of seven phone calls to
Taevion Williams over a period of approximately thirty days â from February 9,
2016 to March 6, 2016. The jail calls were recorded and produced to the defense
during pretrial discovery. Defense counsel suspected that Carter and Williams had
collaborated to create a narrative which would exonerate Carter and implicate Jones.
He believed that Carter and Williams may have concocted this story during jail
phone calls, but claimed he did not know for certain because the prosecution did not
produce any jail calls or jail logs. (ECF No. 7-14, PageID.1575.) Counsel stated it
had been brought to his attention that calls between Williams and Carter occurred,
but he would ânever be able to verify that. I just have to take this witnessâ word for
it, that perhaps they orchestrated this.â (Id.) In fact, the prosecution provided
defense counsel with a disk containing the recorded conversations prior to trial. (Id.
at 1576.) On the third day of a four-day trial, counsel admitted that he had not
listened to the recordings.
The calls show that Carter and Williams collaborated to craft testimony to
exonerate themselves and inculpate Jones. The calls also impeach Williamsâs trial
testimony and Carterâs hearsay statements on several points, e.g., Carter identified
Harris as the shooter, Williams admitted to getting rid of the murder weapon at
Carterâs direction. But the jury never heard the calls nor, remarkably, did defense
counsel. Counsel did not listen to the calls before trial commenced because he did
not know the government had produced a recording of the calls during discovery.
Once counsel learned he had the recordings, he did not ask for an adjournment
to listen to the calls. Instead, counsel proceeded to cross-examine Williams. He
tried to impeach Williams and Carter, but without Carterâs prior statements and
without listening to the recordings, counsel entered this contest unarmed. At the
conclusion of Williamsâs testimony, counsel said, âI may need to recall him after I
listen to the jail calls.â (Id. at PageID. 1621.) He did not recall Williams and there
is no indication that counsel listened to the recording at any point before the next
day when the defense rested without calling any witnesses.
Fourth Statement: Over three months later, on May 24, 2016, Carter made a
fourth statement. This time, he placed the blame for the shooting and theft solely on
Jones. For the first time, Carter maintained that he participated in the robbery only
after Jones threatened him with a gun if he refused to do so. Also, for the first time,
Carter completely exonerated Harris. He claimed that after Harris walked Carter
and Jones to the front porch, Harris went back inside his home and did not participate
in the robbery or murder. Carter claimed that he twice asked Jones to let Pentecost
go after Jones pulled him out of the HHR. Instead, Jones shot Pentecost in the
abdomen. After the man fell, Jones shot him in the back of the head. Jones ordered
Carter to get in the HHR and follow him. They drove to Jonesâs home where Jones
handed Carter the gun and told him to get rid of both the car and the gun.
Carter drove to his friend Taevion Williamsâs house where he wiped down
the car. He stayed at Williamsâs house that evening. Carter gave the gun to Williams
who sold the gun and shared the proceeds with Carter. The next day, Jones drove to
Williamsâs house with his cousin âBooman.â Carter drove the car to 8 Mile Road
near I-75 and burned the car. Jones then drove Carter back home.
Carterâs fourth statement led police to question Taevion Williams. On June
6, 2016, after months of calls between Carter and Williams discussing his testimony,
Williams gave a statement to police which essentially mirrored Carterâs fourth
statement. Carter did not testify at Jonesâs trial, but Taevion Williams did. Defense
counsel moved to exclude Williamsâs testimony on confrontation and hearsay
grounds. The trial court overruled counselâs objections.
On the witness stand, Williams testified that Carter called him during the early
morning hours of January 27, 2016. Carter sounded scared and asked if he could
come to Williamsâs house. Williams agreed. Carter arrived in a black Chevrolet
HHR and told Williams he needed to put the car somewhere. Williams told him to
drive it around the corner. They drove the car behind a store that was about two
blocks away. The men returned to Williamsâs home and went to sleep. The next
morning, Carter told Williams he had participated in a robbery with Jones, and
someone had been shot. Williams testified that Carter said he and Jones were
looking for someone to rob. When they found someone, Carter had a change of heart
and did not want to proceed. Jones told Carter that if Carter did not participate âhe
would turn the gun against him.â (ECF No. 7-14, PageID.1593.) Later that evening,
Carter asked Williams to help him burn the Chevy. Williams refused. Williams
denied that Carter asked him to get rid of a gun.
During cross-examination, counsel briefly asked Williams about phone calls
he had with Carter while Carter was jailed and awaiting trial. The recorded calls,
although available to defense counsel, were not played for the jury. The jail calls
play prominently in Jonesâs ineffective assistance of counsel claim and will be
discussed in much greater detail below.
Justin Harris also testified at trial. Harris testified that he lived next door to
Phil Pentecost on Minock Street. He would see Pentecost a few times a week and
they were friendly. On the evening of January 26, 2016, Harris ran into Jones, who
had been a âneighborhood friendâ, and the two discussed music because Harris is a
music producer. Jones indicated interest in buying some equipment from Harris.
Back at home, Harrisâs cousin Anthony Cox-Rodgers and his friend Ryan
Shaw were with him. When the three men returned from getting food, they saw
Pentecostâs car, a Chevrolet HHR, parked in Pentecostâs driveway. The car was
running and the headlights were on. Harris could not see if anyone was in the car
because the tinted windows were rolled up, but it was not particularly unusual for
Pentecost to sit in his car outside the home.
Once back in the house, Harris received a call from Jones. He and Jones talked
about music for a while. Jones asked Harris if he had âa burner,â which Harris
understood to mean a gun. (ECF No. 7-12, PageID.1211.) Harris said he did not.
Jones asked about hitting licks, which Harris understood to mean â[a] way of coming
up with some money,â including by robbing someone. (Id.) Harris invited Jones to
come to his house, but then became hesitant when Jones said he was with a friend.
Jones assured Harris of his friendâs loyalty by stating that if Jones told his friend to
shoot someone the friend would do so. Jones and Carter (who Harris testified he did
not know) came to Harrisâs house. Jones asked Harris a couple of times where the
licks were. Harris did not know so eventually the conversation moved to music.
Harris could tell that Jones did not have a gun that night, but he could see the
butt of a gun sticking out of Carterâs front hoodie pocket. When Carter and Jones
were ready to leave, Harris walked them outside. He saw them get into a van and
then went back inside the house. About ten to fifteen minutes later, Harris looked
out the window and saw that the van had not pulled away yet. It looked like the men
were in the van. Harris stepped away from the window. Moments later, he heard
two gunshots. He looked out the window then and saw a van driving down the street
followed by Pentecostâs car. He believed it was Jonesâs van because the van was no
longer in the driveway.
Harris went outside and saw Pentecost lying on the ground, with a gunshot
wound to his head. Harris called 911. He picked up a phone that had been lying by
Pentecost, thinking it was Pentecostâs phone. He talked to police that night but did
not mention anything about Jones or Carter because he did not know if they were
involved. He also did not want to be a witness.
After the police left, Harris received a call from Jones. Jones said, âYou
havenât heard anything. You havenât seen anything. You havenât talked to me.â
(ECF No. 7-12, PageID.1226)
Harris gave two statements to police. In the first statement given on the night
of the shooting, Harris did not mention Jones or Carter. He also did not mention to
police that moments before the shooting he had seen Carter with a gun in his pocket.
About eight days after the shooting, police showed Harris a picture and he
recognized Jones. He also viewed a lineup and picked Carter out as Jonesâs friend.
This was the first time that Harris said anything to police about Carter and Jones.
James R. Williams, Jr., testified that Carter is his nephew and lived with him
at the time of the shooting. At some point prior to Jonesâs trial, Williams, Jr.,
realized that two guns he owned and kept in a closet had been stolen. He filed a
police report but did not know who had taken them. The guns, a Colt .38 revolver
and a Smith & Wesson 9 mm, were never recovered.
On the evening of January 28, 2016, Lieutenant Joseph Crandall, an
investigator with the Detroit Fire Department, responded to a report of a car fire in
the backyard of an abandoned house on Detroitâs east side. He determined that the
fire had been intentionally set. Keith Dawson, an employee with the Detroit Police
Auto Theft Unit, identified the burned car as a Chevy HHR. Despite severe damage
to the car, Dawson was able to obtain a VIN number. Police determined that the car
was registered to Phillip Pentecostâs mother and had been reported stolen on January
27, 2016. The record does not indicate whether police investigated who reported the
car as stolen.
III. Procedural History
Jones was convicted following a jury trial in Wayne County Circuit Court.
He was sentenced to life without parole for felony murder, 25 to 50 years for armed
robbery, and 2 years for felony firearm.
Jones seeks a writ of habeas corpus on the following claims:
I. Trial counsel failed to investigate and present crucial impeachment
evidence, undermining confidence in the outcome. Counselâs failure
denied Mr. Jones his Sixth Amendment right to counsel and he is
entitled to habeas corpus relief.
II. No fairminded jurist could agree that Carterâs hearsay statement was
nontestimonial. Its admission violated Mr. Jonesâ Sixth Amendment
right to confrontation.
III. Allowing the jury to hear Carterâs hearsay statements denied Jones
a fair trial.
(ECF No. 2, PageID.17.)
Respondent filed an answer in opposition arguing that: (1) the petition was
not timely filed; (2) claim III is unexhausted; and (3) claims I and III are procedurally
defaulted. (ECF No. 6.) Jones filed a reply brief. (ECF No. 10.)
The Court heard oral argument on May 8, 2025. During the hearing, the
parties made several concessions that the Court finds helpful, as they narrow the
issues and facilitate a more focused review of Jonesâs petition. First, Respondent
conceded that the petition was filed within the one-year statute of limitations and
accordingly withdrew the argument that the petition is untimely. Second, counsel for
Jones expressly abandoned Claim III. Third, as discussed more fully below, Jones
effectively abandoned Claim II by acknowledging the absence of clearly established
Supreme Court precedent.
The parties filed simultaneous supplemental briefs. (ECF Nos. 20-22.)
IV. Legal Standards
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this
case, âcircumscribe[d]â the standard of review federal courts must apply when
considering an application for a writ of habeas corpus raising constitutional claims,
including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S.
510, 520 (2003). Under that statute, if a claim was adjudicated on the merits in state
court, a federal court may grant relief only if the state courtâs adjudication âresulted
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,â
or if the adjudication âresulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.â 28 U.S.C. § 2254(d)(1)-(2). âClearly established Federal law for
purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the
Supreme] Courtâs decisions.â White v. Woodall, 572 U.S. 415, 419 (2014) (internal
quotation marks and citations omitted). âAs a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state courtâs 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.â Harrington v. Richter, 562 U.S. 86, 103 (2011).
The distinction between mere error and an objectively unreasonable
application of Supreme Court precedent creates a substantially higher threshold for
obtaining relief than de novo review. The AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings and demands that state-court decisions be
âgiven the benefit of the doubt.â Renico v. Lett, 559 U.S. 766, 773 (2010). For
claims that were adjudicated on the merits in state court, habeas review is âlimited
to the record that was before the state court.â Cullen v. Pinholster, 563 U.S. 170,
180 (2011).
V. Analysis
A. Procedural Default
In his first claim, Jones argues that defense counsel was ineffective because
counsel failed to present critical impeachment evidence â Carterâs prior inconsistent
statements and the jail calls between Carter and Williams. Jones claims that
counselâs errors resulted from a fundamental misunderstanding of the law and a
failure to investigate and review the evidence.
Respondent argues that Jones procedurally defaulted his ineffective assistance
of trial counsel claim. The doctrine of procedural default applies when (1) a
petitioner fails to comply with a state procedural rule, (2) the rule is actually relied
upon by the state courts, and (3) the procedural rule is âadequate and independent.â
White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006). To determine whether a court
relied on a state-law procedural default, the Court may look through unexplained
orders to the âlast reasoned opinion.â Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991).
Jonesâs claims of ineffective assistance of counsel rely on two different
sources of impeachment, each requiring a separate procedural default analysis. The
Court will address each source individually.
1. Jail Calls
Respondent maintains that Jonesâs jail-calls-related ineffective assistance of
counsel claim is procedurally defaulted because it is unexhausted, and Jones no
longer has any means to exhaust this claim in state court.
A state prisoner must exhaust available remedies in state court before raising
a claim in a federal petition for a writ of habeas corpus. See 28 U.S.C. §§ 2254(b),
2254(c). To satisfy the exhaustion requirement, all claims must be fairly presented
to the state courts through âone full roundâ of the stateâs review process. OâSullivan
v. Boerckel 526 U.S. 838, 842 (1999). A petitioner fairly presents a claim to the
state courts by raising the âsame claim under the same theoryâ before raising it in a
federal habeas petition. See Baldwin v. Reese, 541 U.S. 27, 29-32 (2004).
Jones raised his jail calls claim for the first time in his application for leave to
appeal the trial courtâs denial of his motion for relief from judgment. A claim is not
exhausted when it is raised for the first time âin a procedural context in which its
merits will not be considered unless there are special and important reasons
therefor.â Castille v. Peoples, 489 U.S. 346, 351 (1989). To exhaust his jail calls
claim, Jones needed to raise this claim in his motion for relief from judgment and in
the Michigan Court of Appeals and Michigan Supreme Court. Blackshere v.
Maclaren, No. 15-1904, 2016 WL 561521, at *4 (6th Cir. Feb. 9, 2016) (affirming
district courtâs holding that claim was unexhausted when petitioner did not raise
ineffective-assistance-of-counsel claim until his motion for leave to appeal the denial
of his motion for relief from judgment). Because Jones did not do so, this claim is
unexhausted.
Jones no longer has an available state court remedy to exhaust this claim.
Michigan law permits only one post-conviction motion for relief from judgment,
with limited exceptions. See Mich. Ct. R. 6.502(G)(1). The limited exceptionsâ
for a retroactive change in law, new evidence discovered after the filing of the first
motion, or a court order vacating the defendantâs convictionsâare inapplicable to
Jonesâs case. See Mich. Ct. R. 6.502(G)(2). If a federal habeas petitioner has failed
to exhaust claims in state court and state law no longer allows him to raise his claims,
the claim is procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006) (citing Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)); see also Pudelski
v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009) (âWhile in such situations the
exhaustion requirement is technically satisfied because there are no longer any state
remedies available to the petitioner, ... the petitionerâs failure to have the federal
claims considered in the state courts results in a procedural default of those claims
that bars federal review.â) (citations omitted). Because Jones no longer has an
avenue for exhausting the jail calls claim in state court, this claim is procedurally
defaulted. Id.
2. Carterâs Prior Inconsistent Statements
Respondent argues that the ineffective assistance of counsel claim based on
Carterâs prior inconsistent statements is procedurally defaulted because the last state
court to issue a reasoned opinion addressing this claim, the Michigan trial court,
denied relief under Mich. Ct. R. 6.508(D)(3). (See ECF No. 23-12.) This state
procedural rule bars post-conviction relief on claims that âcould have been raised on
appeal from the conviction and sentenceâ unless the movant can show cause and
prejudice. Mich. Ct. R. 6.508(D)(3). Enforcement of Rule 6.508(D)(3) is an
independent and adequate state ground sufficient to invoke the procedural default
bar. Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012).
Jones initially conceded that his claim is procedurally defaulted. (See ECF No.
2, PageID.36.) But in his reply brief, Jones argues that the trial courtâs ruling based
on the merits, not on an âadequate and independentâ state procedural rule. He bases
this argument on the Sixth Circuitâs decision in Hewitt-El v. Burgess, 53 F.4th 969
(2022).
In Hewitt-El, the Sixth Circuit Court of Appeals considered whether the
petitioner procedurally defaulted his claim that counsel was ineffective for failing to
present alibi witnesses, and for introducing evidence of the petitionerâs prior
convictions. The Sixth Circuit held that the alibi-witnesses claim was not defaulted
because the state court did not rely on an âadequate and independentâ state
procedural rule. Id. at 978. The Court explained, âA state courtâs denial of relief on
a claim is âindependentâ ... if the decision rests on a state-law ground that is
âindependent of the merits of the federal claim.ââ Id. (quoting Harris v. Reed, 489
U.S. 255, 260 (1989)). The Michigan Court of Appeals denied relief on the ground
that defense counselâs âfailure to call alibi witnesses was not objectively
unreasonable.â Id. (quotation omitted). That is, the state court applied the Strickland
standard for deficient performance and rested its decision on the claimâs merits. Id.
The Sixth Circuit concluded, therefore, that the state courtâs ground for denying
relief was ânot âindependentâ of the merits of the federal claim ... To the contrary, it
was wholly dependent upon them, which means that the state court did not deny
relief on an âindependentâ state ground. Hence the claim was not defaulted for
purposes of habeas review.â Id. (quotation omitted).
In contrast, the Sixth Circuit held that the petitionerâs prior-conviction claim
was âarguably defaultedâ because the Michigan Court of Appeals âdenied relief on
the ground that [the petitioner] had not shown âactual prejudiceâ as defined by
Michigan Court Rule 6.508(D)(3)(b).â Id. The Sixth Circuit declined to definitively
decide whether the claim was defaulted (rather than just âarguablyâ so) because any
deficiency as to this claim was excused by appellate counselâs ineffectiveness. Id.
at 978-79.
The trial courtâs decision in this case is closer to the prior-conviction analysis
in Hewitt-El than to the alibi-witness analysis. Here, the trial court specifically held
that Jonesâs failure to raise this claim on direct appeal meant that, under Mich. Ct.
Rule 6.508(D)(3)(b), relief could be granted only if he demonstrated ââgood causeâ
for failure to raise the grounds on appeal and actual prejudice resulting from the
alleged irregularities.â (ECF No. 7-22, PageID.2014.) The court held that Jones
failed to show good cause or prejudice and therefore denied the motion for relief
from judgment. (Id. at 2018.) Jones correctly points out that the trial court also
denied his ineffective assistance of counsel claim because he failed to show counsel
performed deficiently. But a state court does not fail to invoke a procedural default
by ruling on the merits in the alternative. Rogers v. Skipper, 821 F. Appâx 500, 503
(6th Cir. 2020) (citing McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991)).
Jonesâs reliance on two unpublished Sixth Circuit opinions does not persuade
the Court to reach a different result as both are distinguishable. In Thomas v. Burt,
No. 22-1802, 2023 WL 5447379 (6th Cir. Aug. 24, 2023), the Sixth Circuit reversed
a district courtâs application of procedural default because the state court did not
clearly and expressly invoke a procedural bar. The Sixth Circuit held that, although
the state court referenced Rule 6.508(D)(3) at the opinionâs outset and conclusion,
the state court addressed only the merits of the defendantâs claims and ânever stated
that he failed to raise the claims on direct appeal, let alone held that they were
precluded for that reason.â Id. at *6.
Similarly, in Dantzler v. Rewerts, No. 20-1059, 2021 WL 3754248 (6th Cir.
Aug. 25, 2021), the Sixth Circuit declined to apply procedural default where the state
court referenced Rule 6.508(D)(3) and the cause and prejudice standard, but the
courtâs analysis addressed only the merits of the claims without mentioning that the
defendant had failed to raise the claims on direct review. Id. at *8.
In contrast, the trial courtâs opinion denying Jonesâs motion for relief from
judgment specifically referenced Rule 6.508(D)(3), found that Jones failed to raise
his claims on direct review, and concluded that Jones failed to establish good cause
for failing to raise the claims on direct review or resulting prejudice. (See ECF No.
7-22, PageID.2013-08.)
For these reasons, the Court will treat the claim as âarguablyâ procedurally
defaulted because any default is excused by appellate counselâs ineffectiveness.
Hewitt-El, 53 F.4th at 978.
B. Cause and Prejudice
The Court has concluded that both pieces of Jonesâs ineffective assistance of
counsel claims are procedurally defaulted. Therefore, the Court may consider the
merits of these claims only if Jones establishes either (1) cause for the default and
prejudice from the alleged constitutional violation, or (2) that failure to consider the
claims would result in a âfundamental miscarriage of justice.â Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
1. Jail Calls
For the jail calls claim, Jones asserts that he can show an âobjective factor
external to the defense impededâ his ability to comply with the Stateâs procedural
rule. Murray v. Carter, 477 U.S. 478, 488 (1986). He argues that the basis for this
claim was ânot reasonably availableâ to him until the trial count appointed counsel
after the court denied his motion for relief from judgment. The calls were
transcribed for the first time by appointed counsel and submitted with Jonesâs
application for leave to appeal the trial courtâs denial of his motion for relief from
judgment. It appears that the transcripts of the calls were not available to Jones at
the time he filed his motion for relief from judgment and, Jones argues, he could not
listen to the calls because he was incarcerated.
Jonesâs argument fails for two reasons. First, he presumes he could not have
obtained the recordings but offers no evidence that he attempted to do so or to
ascertain the callsâ content.
Second, while Jones may not have had the recordings, he knew they existed.
The recordings were discussed when counsel moved to exclude Carterâs out-of-court
statements. That discussion made it clear that defense counsel had not listened to
the recordings and, in fact, did not know he had them even though counsel suspected
that Carter and Williams conspired to implicate Jones in the murder. This
knowledge was sufficient for Jones to raise a failure to prepare/investigate claim in
his motion for relief from judgment without regard to whether he knew the content
of the calls. See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (holding that
pro se status, ignorance of the law, lack of access to trial transcripts, and limited
access to law library are insufficient to establish cause to excuse a default). Jones,
therefore, fails to establish cause to excuse his default. Because Jones has not
established cause, the Court need not reach the prejudice issue. See Hargrave-
Thomas v. Yukins, 374 F.3d 383, 389 (6th Cir. 2004) (citing Smith v. Murray, 477
U.S. 527, 533 (1986)).
The only remaining option for defeating procedural default is to show that
failure to consider this claim will result in âa fundamental miscarriage of justice.â
Coleman, 501 U.S. at 750. Establishing a fundamental miscarriage of justice
requires a showing of actual innocence. See Dretke v. Haley, 541 U.S. 386, 393
(2004). Jones does not argue that a fundamental miscarriage of justice will result
from failure to review this claim.
Therefore, Jones may not rely on the jail calls to assert a separate ineffective
assistance of counsel claim. However, as explained below, the Court may consider
the jail calls when conducting a de novo review of the prejudice prong of Jonesâs
other ineffective assistance claim.
2. Carterâs Prior Inconsistent Statements
Jones asserts that his appellate counselâs ineffectiveness establishes cause to
excuse the default of his claim that counsel was ineffective for failing to use Carterâs
prior inconsistent statements. Appellate counselâs failure to raise a claim on direct
appeal may serve as cause to excuse a procedural default if the failure rises to the
level of ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488-89
(1986). To establish ineffective assistance of counsel, a petitioner must show that
his attorney performed deficiently, and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney is
deficient if the attorneyâs representation âfell below and objective standard of
reasonableness,â as defined by âprevailing professional norms.â Id. at 688. A
petitioner is prejudiced by his attorneyâs errors if there was a âreasonable probability
that, but for counselâs unprofessional errors, the result of the proceeding would have
been different.â Id. at 694. A court must apply a ââstrong presumptionâ that
counselâs representation was within the âwide rangeâ of reasonable professional
assistance.â Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).
In the context of an ineffective assistance of appellate counsel claim, âthe
petitioner must demonstrate that the issue omitted by counsel was clearly stronger
than issues that counsel did present ... and a reasonable probability that he would
have prevailed but for counsel's failure to raise the issue.â Dennis v. Burgess, 131
F.4th 537, 540 (6th Cir. 2025) (quotations omitted).
When ineffective assistance of appellate counsel is asserted as cause to excuse
a procedural default, the ineffective assistance claim is reviewed de novo. Chase v.
MaCauley, 971 F.3d 582, 591-92 (6th Cir. 2020). Whether Jones âcan present his
ineffective-assistance-of-trial-counsel claim to this court on the merits depends
entirely on whether or not that very ineffective-assistance-of-trial-counsel claim has
any merit.â Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir. 2017). See also Wallace
v. United States, 43 F.4th 595, 603 (6th Cir. 2022) (holding that when ineffective
assistance of appellate counsel is advanced as cause to excuse a procedural default,
the court âmust oddly consider the validity of [the defaulted] claimâthe very claim
that he procedurally defaultedâto decide whether his appellate counsel provided
ineffective assistance (and whether we may consider this claim despite that
default).â). Therefore, the Court will first consider the strength of Jonesâs ineffective
assistance of trial counsel claim and, based on that assessment, will then determine
whether appellate counselâs failure to raise the claim constituted ineffective
assistance.
C. Ineffective Assistance of Trial Counsel
1. Strickland v. Washington
An ineffective assistance of counsel claim has two components. Strickland v.
Washington, 466 U.S. 668 (1984). A petitioner must show that counselâs
performance was deficient, and that the deficiency prejudiced the defense. Id. at 687.
To establish deficient representation, a petitioner must demonstrate that counselâs
representation âfell below an objective standard of reasonableness.â Id. at 688. To
establish prejudice, a petitioner must show that, but for the constitutionally deficient
representation, there is a âreasonable probabilityâ that the outcome of the proceeding
would have been different. Id. at 694.
2. Carterâs Four Custodial Statements
The Michigan trial court issued the last reasoned decision addressing Jonesâs
claim that counsel was ineffective for failing to use Carterâs prior inconsistent
statements as impeachment evidence. The trial court held:
Defendant argues ineffective assistance of trial counsel on account of
counselâs failure to use his co-defendantâs prior inconsistent statements
under MRE 806 to impeach hearsay evidence. However, this Court finds
that ineffective assistance of counsel can take the form of a failure to
call witnesses or present other evidence only if the failure deprives the
defendant of a substantial defense. People v. Hoyt, 185 Mich App 531,
537â538; 462 NW2d 793 (1990); People v. Julian, 171 Mich App 153,
158â159; 429 NW2d 615 (1988). A defense is substantial if it might
have made a difference in the outcome of the trial. People v. Kelly, 186
Mich App 524, 526 (1990). Decisions concerning which witness to call,
what evidence to present, or the questioning of witnesses are considered
part of trial strategy. Julian, supra. In order to overcome the
presumption of sound trial strategy, the defendant must show that
counselâs failure to prepare for trial resulted in counselâs ignorance of,
and hence failure to present valuable evidence that would have
substantially benefitted the defendant. People v. Caballero, 184 Mich.
App. 636, 640â642; 459 N.W.2d 80 (1990). The rule that a defendant is
entitled to effective assistance of counsel does not mean that the
defendant is entitled to the effective assistance of counsel to the degree
that he is assured of a successful defense and acquittal. People v. Bohn,
499 Mich. App 244, 260â261; 212 NW2d 61 (1973).
Inasmuch as this Court considers defense counselâs decision to forego
using the co-defendantâs statements a trial strategy, Defendantâs
argument is without merit.
(ECF No. 7-22, PageID.2015.)
As discussed, while the Court has concluded that the trial court procedurally
defaulted this claim under Michigan Court Rule 6.508(D)(3), the trial court also
denied this claim on the merits. In doing so, the trial court relied only on Stricklandâs
performance prong. The trial court did not address Stricklandâs prejudice prong.
Thus, AEDPAâs deferential standard of review applies only to the trial courtâs
adjudication of the performance prong. See Moritz v. Lafler, 525 F. Appâx 277, 284
(6th Cir. 2013) (â[A]s long as the state court put forward a merits-based ground for
denying post-conviction relief, its mentioning of procedural default as an alternative
or even primary ground for denying relief does not preclude AEDPA deference.â).
But, as conceded by Respondent,5 the Court reviews the unadjudicated prejudice
prong de novo: Where the state court ârelied only on one Strickland prong to
5 ECF No. 20, PageID.3967, n.3
adjudicate an ineffective assistance of counsel claim, AEDPA deference does not
apply to review of the Strickland prong not relied upon by the state court. The
unadjudicated prong is reviewed de novo.â Rayner v. Mills, 685 F.3d 631, 638 (6th
Cir. 2012) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wiggins v. Smith,
539 U.S. 510, 534 (2003)).
a. Performance Prong
As set forth earlier, Carter gave four statements to police. The first three were
given over the course of six hours on the date Carter was arrested. The fourth
statement occurred over three months later, just three weeks before trial. Carter did
not testify at trial. Instead, his version of what happened the night Pentecost was
killed was relayed to the jury through the testimony of his friend Taevion Williams.
Williamsâs testimony about what Carter told him was essentially the same as
Carterâs fourth police statement except, conveniently, Williams did not admit to
selling the murder weapon.
Defense counsel moved to exclude Williamsâs testimony on hearsay and
Confrontation Clause grounds. Defense counsel argued that Carterâs hearsay
statements were unreliable and, because Carter would not testify, defense counsel
had no way to impeach his out-of-court statements. The trial court overruled defense
counselâs objections and held that the statements were admissible as statements
against Carterâs penal interest. Once the trial court ruled Williamsâs testimony
admissible, defense counsel could have impeached both Carter and Williams with
Carterâs prior inconsistent statements. Defense counsel did not do so. This failure
resulted from a misunderstanding of the law.
Defense counsel noted that with each statement Carter provided progressively
more detail about the murder and, simultaneously, minimized his own participation
until, finally, Carter maintained he only participated when forced to do so at
gunpoint. Counsel argued:
... Mr. Carter gave not one, not two, not three, but four previous or
subsequent confessions, and each one details more and minimizes
more.
Each time Mr. Carter ... makes a statement, the facts change ...
[N]obody was involved at first except some third person.
Then suddenly [Jones] is involved a little bit more, and then comes the
third statement, [Jones] and this other guy did it, and Mr. Carter stood
by. Then the fourth statement [Jones] forced Mr. Carter to be involved.
Well, how come I donât get to ask any of those questions? How come
I donât get to impeach the character of Mr. Carter? ... Iâll never be able
to impeach Mr. Carter on this issue not ever. None.
(ECF No. 7-14, PageID.1573-74.) (emphasis supplied).
Counsel was mistaken. Michigan Rule of Evidence 806 allows impeachment
of hearsay declarants:
When a hearsay statement ⌠has been admitted in evidence, the
declarantâs credibility may be attacked, and then supported, by any
evidence that would be admissible for those purposes if declarant had
testified as a witness. The court may admit evidence of the declarantâs
inconsistent statement or conduct, regardless of when it occurred or
whether the declarant had an opportunity to explain or deny it.
Mich. R. Evid. 806.
The trial court, the last state court to issue a reasoned opinion addressing this
claim, held: âInasmuch as this Court considers defense counselâs decision to forego
using the co-defendantâs statements a trial strategy, Defendantâs argument is without
merit.â (ECF No. 7-22, PageID.2015.) The trial court failed to address counselâs
apparent lack of awareness that, under Michigan Rule of Evidence 806, he was
permitted to impeach Carter through Williams.
It is clearly established Supreme Court precedent that decisions based on
mistaken beliefs regarding the evidence and/or law cannot be said to be sound trial
strategy. In Kimmelman v. Morrison, 477 U.S. 365, 383-87 (1986), the Supreme
Court held that an attorney performed deficiently by failing to learn the state rules
governing pretrial discovery. Defense counsel failed to file a timely motion to
suppress a bed sheet seized in a criminal sexual conduct case because he was
unaware the State had the bed sheet. Counsel had conducted no pretrial discovery
because he mistakenly believed the State was required to turned over all its
inculpatory evidence to the defense. Id. at 385. Defense counselâs failure
âbetray[ed] a starling ignorance of the lawâ which violated counselâs âduty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.â Id. (quotation omitted).
In Hinton v. Alabama, 571 U.S. 263 (2014), the United States Supreme Court
again addressed an attorneyâs misunderstanding of the law. Hintonâs lawyer
mistakenly believed he was limited by state law to spending only $1,000 on an expert
witness. Id. at 273. In fact, more than a year before Hintonâs arrest, the $ 1,000 cap
had been abolished and replaced with a provision allowing reimbursement of
âexpenses reasonably incurred.â Id. Hintonâs attorney recognized that the expert he
had retained was not a good one but believed he was âstuckâ with the expert because
he could not find a better expert willing to work for $1,000. Id. The Supreme Court
held that counselâs ignorance of the law on this point and counselâs failure âto
perform basic research on the point is a quintessential example of unreasonable
performance under Strickland.â Id. at 274.
In Hewitt-El, 53 F.4th 969 (6th Cir. 2022), the Sixth Circuit found defense
counselâs performance âobjectively unreasonableâ because he failed to move to
suppress Hewitt-Elâs five prior armed-robbery convictions in a trial for armed
robbery. Id. Counsel mistakenly believed that, because Hewitt-El was charged with
being a felon in possession of a firearm in addition to armed robbery, the nature of
the prior convictions was admissible. Id. The Sixth Circuit held that a competent
defense attorney would have known that, under state law, âHewitt-El could have
excluded, as unfairly prejudicial, evidence that he had multiple felony convictions
for the very same offense for which he was on trial.â Id. Counsel performed
deficiently because his decision âresulted simply from a mistake of law.â Id.
The Sixth Circuit has held that the â[f]ailure to impeach the credibility of key
witnesses with known false testimony is an egregious error in a criminal case.â 6
Peoples v. Lafler, 734 F.3d 503, 513 (6th Cir. 2013). In Peoples, Jesse Peoples was
convicted of first-degree murder for the shooting death of Shannon Clark, a drug
dealer. Three months after Clark was shot outside his home, police arrested Peoples,
Demetrious Powell, and Cornelious Harris after the men led them on a chase in a
stolen Jaguar, which ended when the Jaguar crashed. Id. at 507. A police officer
who witnessed the crash stated in a police report that Harris was the driver of the
Jaguar. Id. Harris was convicted of fleeing in the third degree, which requires
âbeing the driver,â and unlawfully driving away in a motor vehicle. Id. The gun
used to kill Clark was found on the driverâs side floorboard of the Jaguar.
At trial, Harris and Powell testified to âtwo key facts: 1) that Peoples was the
driver of the stolen Jaguar and had thus been sitting closest to the murder weapon,
which Peoples owned; and 2) that Peoples told them about how he killed Clark.â Id.
6 While circuit precedent does not constitute âclearly established Federal law, as
determined by the Supreme Court,â 28 U.S.C. § 2254(d)(1), Sixth Circuit precedents
are instructive in determining whether a state court decision reasonably applied
existing Supreme Court case law. Stermer v. Warren, 959 F.3d 704, 727 nn.3, 4 (6th
Cir. 2020) (holding that a circuit court decision evaluating a habeas corpus petition
under AEDPA may be cited where the decision provides a âhelpful discussion of
Supreme Court precedentâ) (citing Wiggins v. Smith, 539 U.S. 510, 522 (2003)).
at 507. The testimony that Peoples was the driver of the vehicle was known to be
false based on the police report. Inexplicably, defense counsel did nothing to
impeach the witnesses on this fact which âwould have done more than undermine
the theory that Peoples sat closest to the gun. It would have shown that Harris and
Powell told at least one lieâthe same lie.â Id. at 513. The Sixth Circuit concluded:
Impeachment would have undermined the totality of Harris and
Powellâs testimony. It also would have provided solid evidence that
Harris and Powell had coordinated their stories, because both of them
gave the same false testimony. We can think of no better way to attack
the credibility of these witnesses than by proving that they testified to
the same lie. Without credible testimony from these men, the only thing
connecting Peoples to the crime would have been the circumstantial
evidence of the murder weapon found in a car with him and two other
men. Impeachment certainly could have led to exoneration.
Peoples, 734 F.3d at 515.
The Sixth Circuit has also held trial counsel ineffective for failing to impeach
a key witness on testimonial inconsistencies. Higgins v. Renico, 470 F.3d 624, 633
(6th Cir. 2006). In Higgins, Wayne Young, a witness in a murder trial, testified
inconsistently in his initial statements to police and at preliminary examination. Id.
at 626-28. Trial counsel was unprepared for trial and failed to conduct cross-
examination of Young. Id. at 628. The Sixth Circuit noted that as the only
eyewitness to the murder testifying at trial, Young âwas the key to the Stateâs case;
yet [trial counsel], who had the weapons to discredit [the witness], allowed [the
witnessâs] testimony to go unchallenged.â Id. at 634 (emphasis in original). The
Sixth Circuit stressed that Young was not just a key witness implicating the
defendant, he was also âa suspect whose interest in avoiding criminal culpability
was tied firmly to convincing the police and the jury that [defendant] â and not
Young himself â shot [the victim.]â Id. at 633 (citation omitted).
Here, there is no basis in the record to conclude that defense counsel made a
sound strategic decision not to use Carterâs prior statements to impeach his hearsay
testimony. The Court need look no further than defense counselâs argument on the
record. He plainly states (incorrectly) that the rules of evidence did not allow him
to impeach Carterâs hearsay testimony because Carter did not testify.
Respondent asks the Court to conclude that counselâs failure to acknowledge
Rule 806 was an intentional strategy rather than a misunderstanding of the rule.7
Respondent reasons that counselâs âargument that he could not impeach Carter was
not because he did not understand Mich. R. of Evid. 806, but was a full press effort
to convince the trial court that allowing Williams to testify was error.â (ECF No. 6,
PageID.702.) Respondent further argues that counsel knew that if the trial court
allowed Williams to testify about Carterâs statements âthe battle was lostâ and
â[i]mpeaching Carterâs statements would not have been helpful.â (Id.)
7 During the recent hearing in this Court, Respondent conceded that this argument,
advanced by predecessor counsel, was dubious. Nevertheless, the Court addresses
the argument because Respondent has not expressly abandoned it.
This argument is unconvincing. First, it asks the Court to ascribe a motivation
directly contrary to counselâs unambiguous argument: âIâll never be able to impeach
Mr. Carter on this issue not ever.â (ECF No. 7-14, PageID.1573-74.) Second,
Respondentâs argument implies a potential violation of Michigan Rules of
Professional Conduct. Rule 3.3(a)(1), entitled âCandor Toward the Tribunal,â
provides that â(a) A lawyer shall not knowingly: (1) make a false statement of fact
or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer.â Mich. R. Prof. Conduct 3.3(a)(1).
The Court sees no evidence in the record to support Respondentâs argument that
counsel knowingly misrepresented the admissibility of Carterâs police statements
under the Michigan Rules of Evidence. In the absence of any evidence that counsel
intentionally misled the court, this Court will not presume he did so based only on
Respondentâs conjecture.
Moreover, even assuming defense counsel employed the ill-conceived
strategy offered by Respondent, once that strategy failed, counsel had every reason
to impeach Carter. The failure to do so was not tactical; it was deficient performance
and the state courtâs determination to the contrary was âan unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.â 28 U.S.C. § 2254(d).
b. Prejudice Prong
Jones has shown that counselâs performance was deficient and that the state
courtâs contrary conclusion was unreasonable. The Court turns to the prejudice
prong. Because the state trial court did not decide the prejudice prong, this Courtâs
review is de novo. Rayner, 685 F.3d at 638. See Wiggins v. Smith, 539 U.S. 510,
534 (2003) (analyzing Stricklandâs second prong without deferring to the state
courtâs decision because the state courtâs resolution of Stricklandâs first prong
involved an unreasonable application of law). Under this de novo standard of review
and as Respondent has conceded, the Court may consider the jail call evidence.8
To satisfy Stricklandâs second prong, Jones must show âa reasonable
probability that, but for counselâs unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.â Strickland, 466 U.S. at 694.
8 âIf a claim has been adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of § 2254(d)(1) on the record that was before
that state court.â Pinholster, 563 U.S. at 185. Under Pinholster, a federal court may
not âadmit[] new evidence upon which to assess the reasonableness of a state court's
constitutional analysis.â Id. at 647. But â[o]nce a petitioner âclear[s] AEDPAâs
procedural hurdlesâ of § 2254(d) on the state court record,â a district court may
consider evidence not before the state court. Upshaw v. Stephenson, 97 F.4th 365,
372 (6th Cir.), cert. denied, 145 S. Ct. 175 (2024) (quoting Brumfield v. Cain, 576
U.S. 305, 324 (2015)). Where admission of new evidence âserves âas a remedy for
a federal-law error that had already been found by [a reviewing court] on the basis
of the record that was before the state courts, Pinholster does not bar consideration
of the evidence introduced for the first time in the district court.ââ Upshaw, 97 F.4th
at 372 (quoting Harris v. Haeberlin, 752 F.3d 1054, 1058 (6th Cir. 2014)).
The impact of defense counselâs errors must be considered in the context of
the totality of the evidence presented. See, e.g., Strickland, 466 U.S. at 696 (â[A]
verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.â). The
prosecutionâs case depended on the credibility of Harris, Carter, and Williams â the
three witnesses who tied Jones to the crime. Defense counselâs failure to use
available evidence to impeach these witnesses was a critical missed opportunity â
one that could have dramatically reshaped the trial. In a case like this one, where
the case against Jones depended on the credibility of three witnesses, the Court
âcannot over-emphasize the importance of impeachment.â Peoples v. Lafler, 734
F.3d 503, 513 (6th Cir. 2013).
Respondent argues that impeaching Carter with his prior statements would not
have assisted the defense because in each statement Carter implicated Jones as either
a principal or an aider and abettor. This argument is unpersuasive for two reasons.
First, the Court does not agree with Respondentâs position that Carterâs first
statement shows that Jones âencourage[d] someone to commit a robberyâ and
âact[ed] as a reinforcement.â (ECF No. 20, PageID.3967.). Carter stated that he and
Jones were âplayin aroundâ and told Harris he should âgo and getâ the money
Pentecost owed him. (ECF No. 2-1, PageID.83.) Carter stated that Harris went
inside the house before approaching the car and retrieved a ski mask which he wore
as a skull cap. (Id.) So, Harris did not, as Respondent argues, âdon a disguise.â
(ECF No. 20, PageID.3967.) And, while Carter and Jones followed Harris to the
vehicle, they remained far enough away that Carter could not hear what Harris said,
and Carter did not know Harris had a gun until Harris was at the car. Carter and
Jones immediately fled when shots were fired. Carterâs first statement, therefore,
does not show that Jones encouraged Harris to commit a robbery or acted as a
reinforcement.
Second, Carterâs statements would not have been offered for the truth of their
content. Instead, counsel could have used the statements to expose Carterâs
unreliability as a witness. Carterâs shifting narrativesâculminating in a fourth
statement that conveniently and completely exonerated himâwould have
underscored a calculated effort to contrive multiple versions of events before settling
on one that absolved him of any wrongdoing.
Carterâs story changed substantially over the course of his four statements.
Initially, Carter identified Harris as the person solely responsible for Pentecostâs
death and explained that he and Jones did not anticipate that Harris would shoot
Pentecost and did not know that Harris had a gun. Carterâs statements continued to
evolve until his final statement, which painted him as a victim of Jonesâs threats.
Carterâs testimony would have been further impeached had counsel used the
jail calls. The jail calls between Carter and Williams show Carter trying to devise a
plan to secure his release from jail and Williams admitting to disposing of the gun
(âstickâ):
Carter: Dude, I been thinking ... I might, I might, I might have a way.
You know, to, uh, ... get me outta this shit,... Ima have my lawyer holla
at you when he comes to visit me. ... [H]e gonna tell you whatâs the
plan, dog. âCause I canât really say it over the phone. You know they
be recording messages and shit. ...They might try and use some bullshit
against me or something so. Ima have my lawyer holla at you. So,
when [he] holla at you bro, just â just be ready to do what you gotta do.
Williams: Like, as far as ...? ... Say as much as you can, without saying
much.
Carter: You know somebody and they had you do something for them
far as ... You know. ... You know, you know what I had, uh, you know
what n****s had you do, dog.
Williams: Right.
***
Williams: [T]he stick unattainable.
Carter: Huh?
Williams: The stick unattainable.
Carter: ... [Y]ou donât got to obtain it. Long as you, ... you know what
he told you to do with it. ...My lawyer, my lawyerâs gonna break it down
to you, dog. âCause ... they be saying they listening to the conversations
and they be trying to, you know, take what you said on the phone and
try to â make something else up ....
(ECF No. 2-1, PageID.597-598, 600-601.)
Carter also identified Harris as the shooter. He said that police mistakenly
never considered Harris a suspect just because he stayed at the scene and was
ostensibly trying to help Pentecost. But Carter doubted that Harris did anything to
assist Pentecost, âcause he the [one] that did it.â (Id. at PageID.602.)
Counsel also could have severely undermined Williamsâs credibility through
Carterâs custodial statements and the jail calls. On cross-examination, Williams
denied that Carterâs story changed over time:
Defense counsel: Did Robert [Carter] ever tell you any different
account or version of this other than what you told us today?
Williams: Of what story, sir?
Defense counsel: Of the whole robbery and the fact that Robert was
forced to do it?
Williams: No, sir.
Defense counsel: So Robert never mentioned about a third person that
was out there?
Williams: No, sir. The conversation we were having over the phone
was him and Drakile.
Defense counsel: So he was in custody when heâs telling you these
stories?
Williams: He told me this over the phone, yes, sir.
Excuse me if I correct myself please.
When he first told me what happened it was him and Drakile. There
was no other person.
Defense Counsel: What about when he was in jail?
Williams: No.
Defense counsel: Always been just this one story?
Williams: Itâs only been them two. There was no other person.
Defense counsel: So Robert never gives any different versions to you
that youâre aware of?
Williams: I never heard any different versions of the story.
(ECF No. 2-1, PageID.345-346.)
Williams clearly committed perjury. The jail calls are unambiguous on this
pointâCarter told Williams multiple different versions of the story.
Williamsâs testimony about disposing of the murder weapon is also
demonstrably false. Defense counsel asked whether police offered him immunity if
he told them what happened to the guns. Williams acknowledged that police offered
him immunity but testified that he did not need immunity because he had done
nothing wrong. But during the jail calls Williams told an entirely different story.
Williams told Carter he had made the gun âunattainableâ but balked when Carter
said he would tell police that Williams had sold the gun. (Id. at PageID.600-01.)
Williams said:
Itâs too much. ... You ainât gonna put me on like that ... [Y]ou tell them
... something else happened with the gun. You, you donât know where
that gun went to, because Iâm supposed to be the one giving ... Helping
you out with the statement, and they going to be questioning me and all
this other shit. Thatâs too much.
(Id. at PageID.610.)
This is corroborated by Carterâs fourth statement that he âgave the gun to sell
to Taevian [Williams]. He gave me a portion of the money from the gun [sale].â
(ECF No. 2-1, PageID.97.)
Respondent argues that, even if Carterâs statements and the jail calls would
have been useful to impeach Carter and Williams, âthey did not affect the quality of
the other evidence implicating Jones.â (ECF No. 20, PageID.3968.) Respondent
argues that âsubstantial other evidenceâ â the testimony of Justin Harris and Anthony
Cox-Rodgers, and cell phone data â supported Jonesâs convictions.
The Court first considers Harrisâs testimony. The impeachment evidence
would have significantly altered the assessment of Harrisâs testimony, reframing the
narrative from that of an innocent witness to that of a likely participant, if not the
actual triggerman.
Harrisâs testimony incriminated both Jones and Carter â he placed Jones and
Carter near the crime scene close in time to the 911 call, placed a gun in Carterâs
pocket, and stated that Jones warned him to deny seeing Jones that night. The jury
heard that Harris was a concerned neighbor who called 911, then held a towel to the
victimâs head until police and paramedics arrived. They did not know that, before
identifying Jones as the shooter, Carter identified Harris as the shooter in two
separate police statements and in the third identified him as either being the shooter
or an aider and abettor. They also did not know that during the jail calls Carter again
identified Harris as the shooter. This evidence impacts the assessment of Harrisâs
potential motive for lying and his overall credibility.
Considering this impeachment evidence, a jury may also have viewed many
of Harrisâs actions after the shooting with suspicion. For instance, Harris pocketed
the phone that was near Pentecostâs body when police arrived. If, as he claimed after
questioned by police, he believed the phone was Pentecostâs, wouldnât he have
handed it to police officers? He also did not tell police that Jones and Carter had
been in his house just moments before the shooting. In fact, he waited eight days
before mentioning Carter or Jones to police. Harris called 911 at 12:30 a.m. He
called Jones at 12:47 a.m., 12:48 a.m., and 2:24 a.m. Police knew this because they
seized Jonesâs phone, but, despite Harrisâs presence at the scene, police did not seize
his phone.
The second witness cited by Respondent, Anthony Cox-Rogers, was at
Harrisâs house the night of the shooting. He testified at the preliminary examination
but did not appear for trial. Cox-Rogers was in Ohio at the time of trial but agreed
to return to Michigan to testify. However, at some point after trial began, Cox-
Rogers stopped answering phone calls from the prosecutor and officer-in-charge.
The prosecutor obtained a witness detainer, and the case was turned over to the
Detroit Fugitive Apprehension Team. The court held that Cox-Rogers was
unavailable under Mich. R. 804(a) and allowed his preliminary examination
testimony to be read into the record.
Cox-Rogers was at Harrisâs home on the night of January 26, and identified
Jones and Robert Carter as the two men who visited that night. Cox-Rogers
estimated that the men stayed about fifteen to twenty minutes. He heard gunshots
less than five minutes after Carter and Jones left. He looked out the window and
saw Pentecost lying on the ground, then saw Pentecostâs car pulling away, followed
by a van. At most, he places Carter and Jones near the scene within five minutes of
the shooting and shows that âa vanâ left the scene after shots were fired.
Lastly, Respondent cites cell phone mapping evidence. Detroit police
sergeant Michael McGinnis testified as an expert in cell phone analysis and
mapping. He obtained the records for Carterâs and Jonesâ phones. Notably, police
did not obtain Harrisâs cell phone records. McGinnis testified that cell phone data
placed Jones in the vicinity of the shooting and, later, the burned-out car. But
McGinnis also testified that he could discern the vicinity of a phoneâs location but
could not tell the phoneâs exact location. A cell phone communicates with the cell
phone tower with the strongest signal. The strongest signal usually comes for the
closest tower, but not always. McGinnisâs testimony also showed that there were
several calls between Jonesâs and Harrisâs phones after the shooting â four calls from
Jones to Harris at 12:30 a.m., 12:34 a.m., 12:43 a.m., and 1:01 a.m., and two calls
from Harris to Jones at 12:47 a.m., and 12:48 a.m. This evidence calls into question
Harrisâs testimony that Jones called him once after the shooting to tell him, âYou
havenât heard anything. You havenât seen anything. You havenât talked to me.â
(ECF No. 7-12, PageID.1226.) If Harris had received such a threat, it is unlikely the
calls would have continued between the two men throughout the night.
The importance of Carterâs, Williamsâs and Harrisâs testimony is magnified
by the absence of any physical evidence linking Jones to the shooting. There was
no DNA evidence, no fingerprints, no gunpowder residue, and no murder weapon.
Indeed, the only physical evidence presented incriminated Carter and Harris:
Pentecostâs jacket was found inside Carterâs home. Additionally, Carter admitted
that he had stolen two guns from his uncle, either of which could have discharged
the bullets which killed Pentecost. Finally, the reason the murder weapon was
unattainable was because the same two individuals who conspired to testify against
Jones also conspired to make the âstickâ unattainable.
The evidence counsel did not utilizeâCarterâs prior inconsistent statements
and the jail callsâwould have undermined the credibility of the three key
prosecution witnesses.
The jail calls counsel failed to review contained far more than statements that
could have been used to cross examine Williams. The conversations could have
been used not only to impeach both men, but also to reveal how their joint narrative
evolved over time. Carter gave his third statement on February 3, 2016, and his
fourth statement three months later, on May 24, 2016. Carter and Williams spoke
by telephone five times over that three-month period. The calls reflect the
development of their narrative over time as Carter, in the second-to-last recorded
call, told Williams that he had devised a plan to get himself out of trouble:
Dude, I been thinking ... I might have a way. You know, to ... get me
up outta this shit ... Ima have my lawyer holla at you when he comes
visit me. ... [He] gonna tell you whatâs the plan ... âCause I canât really
say it over the phone. You know they be recording messages ...
(ECF No. 2-1, PageID.597.)
Co-defendant Carter did not testify at Jonesâs trial, but he essentially testified
through Taevion Williams. Carterâs story placed the blame entirely on Jones. Carter
claimed he only participated to the extent he did because Jones threatened him with
a gun. Williams testified that he did not participate in any way. He did not see
Carter with a gun that night, much less dispose of one. This collective testimony
from Williams and Carter went essentially unchallenged because defense counsel
failed to impeach key prosecution witnesses whose testimony was crucial to the
prosecutionâs case. If the jury had heard the many conflicting stories, and the
apparent attempt to coordinate testimony between Carter and Williams, there is a
reasonable likelihood that this impeachment evidence would have created a
reasonable doubt as to Jonesâs guilt. Jones has shown both that the Michigan Court
of Appealsâ decision that counsel was not deficient was an unreasonable application
of Supreme Court precedent, and that counselâs performance prejudiced the defense.
D. Ineffective Assistance of Appellate Counsel
Having assessed the strength of Jonesâs ineffective assistance of trial counsel
claim, the Court returns to the question of whether appellate counsel was ineffective
for failing to raise this claim on appeal.
1. Performance Prong
Under Stricklandâs first prong, the Court must assess whether âcounselâs
representation fell below an objective standard of reasonableness.â Strickland, 466
U.S. at 687-88. The Sixth Circuit has identified ââsome considerations that ought to
be taken into accountââ to determine whether an appellate attorney rendered
competent assistance. Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020)
(quoting Mapes v. Coyle, 171 F.3d 408, 427 (1999)). The list, while not exhaustive,
offers the following inquiries:
(1) Were the omitted issues âsignificant and obviousâ?
(2) Was there arguably contrary authority on the omitted issues?
(3) Were the omitted issues clearly stronger than those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial courtâs rulings subject to deference on appeal?
(6) Did appellate counsel testify in a collateral proceeding as to his
appeal strategy and, if so, were the justifications reasonable?
(7) What was appellate counselâs level of experience and expertise?
(8) Did the petitioner and appellate counsel meet and go over possible
issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments of error?
(11) Was the decision to omit an issue an unreasonable one which
only an incompetent attorney would adopt?
Chase v. MaCauley, 971 F.3d 582, 592-93 (6th Cir. 2020) (citing Mapes, 171 F.3d
at 427-28).
Many of these factors are relevant to this petition and support the conclusion
that Jonesâs appellate counsel provided ineffective representation. The omitted
ineffective assistance of counsel claim was both significant and obvious. Even a
somewhat cursory review of the trial court record would reveal that the prosecutionâs
case lacked any physical evidence implicating Jones and, instead, relied almost
entirely on the testimony of Carter, Harris, and Williams. With that framework in
mind, it would have been obvious to competent appellate counsel that defense
counsel failed to use Carterâs prior inconsistent statements or the jail calls to impeach
these witnesses. It also would have been obvious that counselâs failure was based
on fundamental errorsâa misunderstanding of the Rules of Evidence and a failure
to prepare for trial. The errors were plainly evident because trial counsel stated his
mistake of law on the record and his failure to review the jail call recordings that
were in his possession.
Second, there is no contrary authority holding that defense counsel renders
competent assistance by making a mistake or law or by failing to review the facts
and available evidence. And, while no evidentiary hearing was held in state court,
appellate counsel clearly failed to apprehend the depth and seriousness of defense
counselâs errors. In fact, it appears that appellate counsel also may not have
understood that trial counsel could have impeached Carter with his prior inconsistent
statements even though Carter did not testify. Appellate counsel fails to mention
defense counselâs error in his brief and surely would have had he recognized it.
The ineffective assistance of trial counsel claim was stronger than the claim
appellate counsel chose to raise. Counsel raised a single claim before the Michigan
Court of Appeals: the trial court erred in allowing highly prejudicial and unreliable
hearsay of a non-testifying co-defendant violating Jonesâs right to due process and
confrontation. Appellate counselâs presentation of the Confrontation Clause claim
was destined to fail. Counsel did not argue that Carterâs statement was testimonial.
Non-testimonial statements do not implicate the Confrontation Clause. Crawford v.
Washington, 541 U.S. 36, 68 (2004). Much of counselâs remaining appellate
argument focused on the reliability of Carterâs hearsay testimony. The Michigan
Court of Appeals dispensed with the reliability question finding counselâs arguments
âirrelevant to the admissibility of Carterâs statementsâ because âreliability of the
statement is established if the statement satisfied MRE 804(b)(3).â Jones, 2018 WL
987394, at *5.
Clearly, the single claim counsel raised on appeal was not particularly strong.
Appellate counselâs decision to omit this claim was seriously flawed and fell outside
the wide range of professionally competent assistance.
2. Prejudice Prong
The Court now turns to the question of prejudice, whether there existed a
âreasonable probabilityâ that the outcome of Jonesâs direct appeal would have been
different. Chase, 971 F.3d at 595. There is a reasonable probability that the court of
appeals would have found that defense counselâs failure to impeach these witnesses
âundermined confidence in the verdict,â and that Jones was prejudiced by counselâs
failure to raise the issue. Hewitt-El, 53 F.4th at 979.
Appellate counselâs ineffectiveness establishes cause and prejudice to excuse
the procedural default of the ineffective assistance of counsel claim. As such, the
Court may grant habeas corpus relief on the ineffective assistance of trial counsel
claim as discussed above.
E. Confrontation Clause Claim
In his second claim, Jones argues that admission of Carterâs prior statement
through Williams violated the Confrontation Clause because it was testimonial in
nature. A statement is testimonial if it has a âprimary purpose of creating an out-of-
court substitute for trial testimony.â Michigan v. Bryant, 562 U.S. 344, 358 (2011).
Jones argued:
Because Carterâs fourth statement was testimonial, and Williamsâ trial
testimony merely relayed the substance of the fourth statement to
police, Williamsâ testimony had the primary purpose of âcreating an
out-of-court substituteâ for Carterâs testimony.
(ECF No. 2, PageID.50.)
Jonesâs argument is compelling, but, as counsel has acknowledged,9 no clearly
established Supreme Court precedent establishes that under these circumstances
Carterâs statement was testimonial. If the Court were deciding this claim on direct
review and not through the prism of AEDPAâs strict standard of review, the Court
might be persuaded by this argument. But the Court is constrained by AEDPAâs
standard of review and denies this claim.
VI. Conclusion
The Court concludes that Petitioner was denied his right to the effective
assistance of trial and appellate counsel, which prejudiced him both at trial and on
appeal. The state courtâs decision to the contrary was an unreasonable application
of clearly established Supreme Court precedent.
9 See ECF No. 21, PageID.20-21 (counsel for Jones recognized that âno clearly
established federal lawâ made this out-of-court statement testimonial).
Accordingly, the Court GRANTS a conditional writ of habeas corpus. The
State must either release Jones or institute proceedings to retry him within 120 days
of the filing date of this Order. If the State fails to do so, Jones may move for an
unconditional writ seeking immediate release from custody.
IT IS SO ORDERED.
Dated: July 2, 2025 s/Robert J. White
Robert J. White
United States District Judge Case Information
- Court
- E.D. Mich.
- Decision Date
- July 2, 2025
- Status
- Precedential