Macleod v. Braman

                UNITED STATES DISTRICT COURT                             
                EASTERN DISTRICT OF MICHIGAN                             
                      SOUTHERN DIVISION                                  
DUSTIN L. MACLEOD,                                                        
                                       Case No. 2:19-cv-12153            
 Petitioner,                                                             
                                       Paul D. Borman                    
v.                                      United States District Judge      

MELINDA K. BRAMAN,                                                        

    Respondent,                                                          
_______________________________/                                          

  OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF                 
   HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF                
  APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA                
                           PAUPERIS                                      

    Dustin Macleod, (“Petitioner”), presently on parole supervision through the 
Chippewa County Parole Office in Sault Ste. Marie, Michigan, filed a petition for 
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for 
manufacture with intent to deliver between 5 and 45 grams of marijuana, Mich. 
Comp. Laws § 333.7401(2)(d)(ii); possession with intent to deliver marijuana, Mich. 
Comp. Laws § 333.7401(2)(d)(iii); felon in possession of a firearm, Mich. Comp. 
Laws § 750.224f; harboring a felon, Mich. Comp. Laws § 750.199(3), possession of 
a  firearm  in  the  commission  of  a  felony  (felony  firearm),  Mich.  Comp.  Laws 
§ 750.227b;  and  being  a  fourth  felony  habitual  offender,  Mich.  Comp.  Laws 
§ 769.12. For the reasons that follow, the petition for writ of habeas corpus is 
DENIED WITH PREJUDICE.                                                    
I. BACKGROUND                                                             

    Petitioner was convicted following a jury trial in the Cheboygan County 
Circuit Court. This Court recites verbatim the relevant facts relied upon by the 
Michigan Court of Appeals, which are presumed correct on habeas review pursuant 
to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009): 

    This  case  arises  from  the  investigation  of  defendant  for  selling 
    marijuana to people for whom he is not a registered caregiver under the 
    Michigan Medical Marihuana Act [MMMA], MCL 333.2641, et seq.         
    The  investigation  included  three  controlled  buys  made  using   
    confidential informants Shawn Spohn and his girlfriend, a forward    
    looking infrared radar (FLIR) scan of defendant’s residence and of his 
    grow house, and a comparative analysis of the energy bills of buildings 
    similar in size and location to defendant’s grow house. Using results 
    obtained from the investigation, Detective Jess Halleck secured search 
    warrants for defendant’s residence and grow house on October 14,     
    2014, and members of the Huron Undercover Narcotics Team (HUNT)      
    and  of  Straits  Area  Narcotic  Enforcement  (SANE)  conducted  the 
    searches  on  the  same  day.  Immediately  prior  to  the  search  of  his 
    residence,  defendant  was  arrested  at  a  remote  location.  Defendant 
    waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S Ct 
    1602, L.Ed.2d 694 (1966), and participated in a police interview with 
    Detective Jason Varoni. Among other things, defendant admitted that  
    he had one to two pounds of newly harvested marijuana at his house,  
    and approximately 40 full-grown plants and an unknown number of      
    clones  in  a  nearby  grow  house.  Defendant  identified  himself  as  a 
    medical marijuana grower and caregiver for three patients plus himself, 
    but admitted that he sold “the medicine” to whomever said they needed 
    it.                                                                  

    When officers knocked and announced themselves prior to searching    
    defendant’s residence, Megan MacLeod, defendant’s sister, ran out the 
    back door, toward the woods, and into the Black River, all the while 
    with one officer yelling at her to stop, and another officer in pursuit. 
    The pursing officer caught her in the middle of the river and turned her 
    over to the proper authorities. Officer Dean Tebo testified that Megan 
    MacLeod was an absconder from the Cheboygan County Jail.             

    SANE’s search of defendant’s residence turned up marijuana leaf in   
    bags in the master bedroom and the kitchen freezer, and 23 canisters 
    and 14 plastic baggies with different varieties of marijuana seeds. The 
    team also found a black digital scale, a marijuana drying rack and   
    several firearms.                                                    

    Detective Halleck testified to the search of the grow house, describing 
    the building as square, brick, and with surveillance cameras at each 
    corner and black material covering the windows to keep the light out. 
    Inside, officers found a garbage can containing marijuana “shake,” one 
    grow room with six plants from four to six feet tall, another grow room 
    with four plants from three to four feet tall, a third room with 20 plants 
    from three to four feet tall, and a room with 92 clones. Detective   
    Halleck testified that all or most of the clones had a root system. They 
    also  found  high-powered  grow  lights  and  bulbs  in  each  room.  In 
    addition, the grow house had a ventilation system to keep the rooms  
    cool, and a carbon dioxide tank to pump in extra carbon dioxide to help 
    the plants grow. Including clones, officers seized 122 plants. Random 
    samples of 21 plants were sent to the Grayling State Police Crime    
    Laboratory  for  analysis.  They  were  examined  by  forensic  scientist 
    Karen Brooks, who testified that each tested positive as marijuana.  

People v. MacLeod, No. 326950, 2016 WL 3767496, at 1–2 (Mich. Ct. App. July 
14, 2016).                                                                
    Petitioner’s conviction was affirmed. Id., lv. den. 500 Mich. 946 (2017). 
    Petitioner filed a post-conviction motion for relief from judgment pursuant to 
M.C.R. 6.500, et. seq., which the trial judge denied. People v. Macleod, No. 14-
4961-FC (Cheboygan Cty. Cir. Ct., Feb. 8, 2018). The Michigan appellate courts 
denied leave to appeal. People v. MacLeod, No. 342615 (Mich. Ct. App. 22, 2018); 
lv. den. 503 Mich. 1018 (2019).                                           
Petitioner seeks habeas relief on 28 grounds:                        
I. Did the trial court reversibly err when it denied Petitioner’s motion 
to  dismiss  which  was  based  on  the  State  of  Michigan’s  lack  of 
jurisdiction to prosecute Petitioner, a member of the Sault Ste. Marie 
Tribe of Chippewa Indians who was gathering as allowed by the 2007   
Inland  Consent  Decree  and  which  also  reserved  federal  or  tribal 
jurisdiction  for  consent  decree  disputes  occurring  in  the  defined 
portions of the territory ceded to the United States in the 1836 Treaty 
of the United States with the Ottawa and Chippewa Nations of Indians?  

II. Did the trial court err when it failed to grant a mistrial when the 
prosecution failed to produce endorsed witnesses and denied Petitioner 
his Sixth Amendment right of confrontation?                          

III. Did the trial court reversibly err when it granted the prosecution’s 
motion in limine to forbid the defense to mention Petitioner’s Native 
American heritage and denied him his due process right to present a  
defense?                                                             

IV.  Was  Petitioner  denied  the  effective  assistance  of  counsel 
guaranteed by the federal and state constitutions (U.S. Const. Am. VI; 
Mich. Const. 1963, Art. 1, § 20) where trial counsel (1) failed to   
procedurally  obtain  interlocutory  appeal  relief,  (2)  failed  to 
procedurally obtain relief in federal court, (3) failed to challenge the 
initial stop of Petitioner, (4) failed procedurally to bring a Section 8 
defense pretrial, (5) failed to bring a Section 4 defense during trial, (6) 
failed to challenge the inclusion of the clones in the total number of 
“plants” seized, (7) failed to challenge the search warrant that was 
based on absent confidential informants and illogical electrical bills, (8) 
failed to move to dismiss Megan MacLeod’s “felony” arrest warrant,   
(9) failed to object to 404b evidence or request a limiting instruction, 
and (10) failed to subpoena Shawn Spohn, Jamie Lee Richards, and     
Detective Varoni?                                                    

V. Did the trial court reversibly err and abuse its discretion by refusing 
to recognize the Treaty and constitutional rights of the Petitioner, a 
member of the Sault Ste. Marie Tribe of Chippewa Indians, who was    
exercising his “usual privileges of occupancy” rights as recognized by 
the 1836 Treaty of Washington when arrested?                         

VI. Did the trial court reversibly err when it abused its discretion by 
refusing to recognize its jurisdictional limits as established by statute 
and precedent?                                                       

VII. Did the trial court reversibly err when it adjudicated this case with 
a  wanton  disregard  for  the  Petitioner’s  constitutional  and  Treaty-
protected rights, including the Indian Civil Rights Act. The Indian Civil 
Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301–1304?                   

VIII.  Did  Petitioner  Dustin  MacLeod’s  conviction,  judgment,  and 
sentence  for  felony  firearm,  felon  in  possession  of  a  firearm  and 
delivery-manufacturing  marijuana/possession  with  intent  to  deliver 
under both Mich. Comp. Law 333.7401(2)(d)(iii) and Mich. Comp.       
Laws 333.7401(2)(d)(ii) are void ab initio where the trial court lacked 
res and personam jurisdiction, in violation of the US Constitution,  
Article VI, Clause 2, Supremacy Clause because MacLeod’s Native      
American sovereign rights create an immunity to prosecution under the 
1836 Treaty of Washington, the 2007 Consent Decree (where §§ 1.3,    
5(A)–(D), 6.2, 20.1, 24.3 were breached), federal law 25 U.S.C. §    
5123(G)(H) [construed in pari materia] and the legal principle of the 
US Supreme Court in United States v. Shoshone Tribe, 304 U.S. 111,   
58 S. Ct. 794 (1938) et all (regarding construction of Indian treaties) 
where the same provisions (including crops of all varieties, especially 
for medicinal purposes) while in Indian Count[r]y, as defined by and 
referred to in 18 U.S.C. §§ 1151–1153(A)(B), 62(A)–(C) when those    
Native American sovereignty rights were infringed [at the instigation 
of  the  Department  of  Natural  Resources  (DNR)]  by  the  State  of 
Michigan?                                                            

IX. Was the trial court without authority and jurisdiction to sentence 
Petitioner as a 4th degree habitual offender, in violation of the U.S. 
Constitution  XIV  Amendment  and  the  legal  principle  of  the  U.S. 
Supreme Court in Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501 (1962)  
when the prosecution failed to proper[l]y file the 4th degree habitual 
offender notice with the Mich. Ct. R. 6.112(F); Mich. Comp. Laws     
769.13 21 days strict time limitations period?                       

X.  Is  Petitioner’s  convictions  for  delivery-manufacture  of  5–45 
kilograms of marijuana possession with intent to deliver 20 marijuana 
plants or more, but less than 200 plants, contrary to Mich. Comp. Laws 
333.7401(2)(d)(ii)  and  delivery-manufacture  marijuana  possession 
with  intent  to  deliver  marijuana,  contrary  to  Mich.  Comp.  Laws 
333.7401(2)(d)(iii) a violation of the U.S. Constitution V Amendment 
and the legal principle of the U.S. Supreme Court in Blockburger v.  
United States, 284 U.S. 299, 52 S. Ct. 180 (1932) [based on the felony 
information’s language] for the same offense because Mich. Comp.     
Laws 333.7401(2)(d)(iii) is a Mich. Comp. Laws 768.32 necessarily    
lesser  included  offense  of  the  greater  offense  Mich.  Comp.  Laws 
333.7401(2)(d)(ii)?                                                  

XI. Was Petitioner denied due process of law, in violation of the U.S. 
Constitution VI, XIV Amendments and the legal principle of the U.S.  
Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712    
(1986) when the prosecution deliberately used a peremptory challenge 
to remove the only Native American juror (Timothy Lince) because he  
might have empathized with Petitioner (a Native American) when that  
peremptory challenge was based on the race of juror Lince (a Native  
American) despite the spurious prosecutorial façade to the contrary?  

XII. Was Petitioner denied due process of law and equal protection of 
the law, in violation of the U.S. Constitution VI, XIV Amendments;   
Mich. Const. 1963, Article 1 § 20 and the legal principle of the U.S. 
Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664      
(1979) when due to the Cheboygan County irregular jury empanelment   
procedure, the distinctive Native American, Hispanic American and    
AfroAmerican  groups  of  Cheboygan  County  community  are          
systematically excluded from the jury selection process and are not  
fairly represented in the venire, resulting in an under representation of 
the  Native  American,  the  Hispanic  American  and  Afro-American  
during the jury selection process?                                   
XIII. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
due to egregious and reprehensible law enforcement misconduct in the 
form  of  collusive  perjury  or  false  testimony  to  the  degree  that 
Petitioner’s conviction, judgment, and sentence should be reversed and 
the case dismissed with prejudice?                                   

XIV. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and  the  legal  principle  of  the  U.S.  Supreme  Court  in  Smith  v. 
Massachusetts,  543  U.S.  462,  125  S.  Ct.  1129  (2005);  Bunkley  v. 
Florida, 538 U.S. 835, 123 S. Ct. 2020 (2003) because there was      
insufficient evidence to sustain his conviction for felony firearm?  

XV. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI XIV Amendments; Mich. Const. 1963, Article 1 § 20    
and the legal principle of the U.S. Supreme Court in the Jackson v.  
Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) line of cases when his 
conviction for harboring a fugitive who had a felony warrant pursuant 
to Mich. Comp. Laws 750.199 was based on insufficient evidence to    
prove Megan MacLeod wasn’t exempt from a felony warrant due to the   
applicability of the Mich. Comp. Laws 801.251, 750.195(3) and U.S.   
Supreme Court’s doctrine of in pari materia was totally ignored by the 
State of Michigan?                                                   

XVI. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Strickland v.   
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and Cronic v. United 
States,  466  U.S.  648,  104  S.  Ct.  2039  (1984)  due  to  multiple 
incompetent acts (whether by omission or commission) by trial counsel 
Gilbert  alphabetized  A–U  that  were  prejudicial  to  the  defense  of 
Petitioner?                                                          

XVII. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Berger v. U.S., 295 
U.S.  78,  55  S.  Ct.  629  (1935)  due  to  cumulative  prosecutorial 
misconduct alphabetized A–E?                                         

XVIII. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in  Crawford v.    
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) when Petitioner was  
prevented from cross-examining and impeaching Jason Varoni when      
Patrick Holt was allowed to testify in Varoni’s place and interpret  
Varoni’s interview report with MacLeod?                              

XIX. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Olden v. Kentucky, 
488 U.S. 227, 109 S. Ct. 480 (1988); Davis v. Alaska, 418 U.S. 308, 94 
S. Ct. 1105 (1974) when MacLeod was not allowed to impeach alleged   
confidential informant Shawn Spohn with his motive, interest and bias 
to entrap and dupe Petitioner into deviating from MMMA parameters,   
by acting under the pretext of being a Native American (similar to   
Petitioner) in need of medical marijuana to ease debilitating illness and 
with his criminal history, where he was made unavailable for trial by 
police and prosecution under the rule in Reynold v. United States?   

XX. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in  Crawford v.    
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) when the trial court 
abused its discretion by allowing Karen Brooks to testify to a lab report 
prepared by an unnamed MSP lab analyst (according to the felony      
information) when the lab report was suppressed by the prosecution, in 
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1197 (1963) and 
Mich.  Ct.  R.  6.201(A)(B)  to  the  surprise  of  the  defense  when  the 
defense  was  prevented  from  pre-trial  interview,  investigating  the 
unknown or unnamed MSP lab analyst and from impeaching the state     
witness with the lab report’s contents?                              
XXI. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Michelsohn v.   
United States, 335 U.S. 469, 69 S. Ct. 213 (1949) when PX 1, PX 5, PX 
6 (hearsay) were admitted into evidence for their prejudicial impact or 
proving that MacLeod had previously committed the same crimes (but   
not charged with) for which he was on trial for, thereby tainting juror 
minds with bad man character and other uncharged similar act crimes  
evidence?                                                            

XXII. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Hering v. New   
York, 422 U.S. 853, 95 S. Ct. 2550 (1975) when the trial court abused 
its discretion by precluding trial counsel from arguing Spohn’s Native 
American ruse to convince Petitioner to violate MMMA provisions by   
presenting to MacLeod a MMMA registered, qualified patient card?     

XXIII. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
when the trial court allowed the prosecution and police officers to first 
influence the juror minds with their prejudicial interpretations of what 
the  erroneously  admitted  PX  1,  PX  5,  PX  6  and  PX  31  (hearsay 
evidence) said and meant, thereby invading the province of the jury  
instead of allowing the tape discs to play out in open court on the record 
to allow the jury to make their own independent determination of what 
the tape discs said and meant?                                       

XXIV. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Chambers v.     
Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973) when the trial court 
abused its discretion by denying the Petitioner a late endorsement of 
defense witnesses Jason Varoni, Shawn Spohn and Jamie Richards       
because  a  mere  CJI2d  5:12  instruction  was  inadequate  to  protect 
Petitioner’s  right  to  call  and  examine  witnesses  favorable  to  the 
defense?                                                             
XXV. Was Petitioner denied due process of law in violation of the U.S. 
Constitution VI, XIV Amendments; Mich. Const. 1963, Article 1 § 20   
and the legal principle of the U.S. Supreme Court in Cupp v. Naughten, 
414 U.S. 141, 94 S. Ct. 396 (1974) when the trial court improperly   
instructed the jury in regards to the elements of felony firearm in the 
preliminary and final jury instructions?                             

XXVI.  Was  Petitioner’s  conviction  and  sentence  for  delivery-  
manufacturing marijuana possession with intent to deliver under both 
Mich.  Comp.  Laws  333.7401(2)(d)(iii)  and  Mich.  Comp.  Laws     
333.7401(2)(d)(ii) obtained in violation of the U.S. Constitution VI, 
XIV Amendments; Mich. Const. 1963, Article 1, §§ 17, 20 and the U.S. 
Supreme Court’s clearly established law in U.S. v. Russell, 411 U.S. 
423, 93 S. Ct. 1637 (1973) when the conviction and sentence was based 
on police and law enforcement entrapment when the police agent posed 
as a Native American to induce MacLeod to violate the Michigan       
Medical Marijuana law per Mich. Comp. Laws 333.26421 et. seq.,       
resulting in a violation of the Health Code law pursuant to Mich. Comp. 
Laws 333.7401(2)(d)(ii)(iii) out of sympathy and empathy for a fellow 
Native American when without such Native American ruse, Petitioner   
would not have violated Mich. Comp. Laws 333.7401(2)(d)(ii)(iii)?    

XXVII. Was Petitioner denied the U.S. Constitution XIV Amendment     
due process and equal protection of the law clauses during an appeal of 
right to have accurate and verbatim transcripts of the entire proceedings 
when the court reporter failed to comply with the language of Mich.  
Comp.  Laws  8.108(B)(1)(A)–(D)  consistent  with  28  U.S.C.  §     
753(B)(1) when the court in the form of the 11 illegally admitted    
hearsay evidence PX1, PX 5, PX 6 and PX 31 where such omissions      
interferes with the appellate court’s ability to make an accurate and 
independent determination of what the tape disc conversations between 
MacLeod  and  CI  Shawn  Spohn  and  MacLeod  and  Officer  Varoni   
actually said or meant?                                              

XXVIII. Was Petitioner denied the effective assistance of appellate  
counsel during direct appeal in violation of the U.S. Constitution XIV 
Amendment and the legal principles of the U.S. Supreme Court in      
    Anders  v.  California,  386  U.S.  738;  87  S.  Ct.  1396  (1967)  when 
    appellate  counsel  failed  to  raise  the  exact  arguments  contained  in 
    arguments  VIII–XXVIII  because  those  issues  were  significant,   
    meritorious and obvious issues to raise during direct appeal when there 
    is a reasonable likelihood that had arguments I–XX been raised on    
    direct  appeal,  Defendant  MacLeod’s  conviction,  judgment,  and   
    sentence would have been reversed?                                   

(ECF No. 1. Petition, PgID 72–81.)                                        

II. STANDARD OF REVIEW                                                    
    28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas 
cases:                                                                    
    An application for a writ of habeas corpus on behalf of a person in  
    custody pursuant to the judgment of a State court shall not be granted 
    with respect to any claim that was adjudicated on the merits in State 
    court proceedings unless the adjudication of the claim–              

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

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

    A decision of a state court is “contrary to” clearly established federal law if 
the state court arrives at a conclusion opposite to that reached by the Supreme Court 
on a question of law or if the state court decides a case differently than the Supreme 
Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 
362, 405–06 (2000). An “unreasonable application” occurs when “a state court 
decision unreasonably applies the law of [the Supreme Court] to the facts of a 

prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ simply 
because that court concludes in its independent judgment that the relevant state-court 
decision applied clearly established federal law erroneously or incorrectly.” Id. at 

411. “[A] state court’s determination that a claim lacks merit precludes federal 
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the 
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing 
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).                        

III. DISCUSSION                                                           
     A. Claims # 1, 5, 6, 7, 8. The jurisdictional claims.               
    Petitioner, in his first, fifth, sixth, seventh, and eighth claims, argues that the 

State of Michigan did not have jurisdiction to prosecute him, because his status as a 
Native American permits petitioner to grow and sell marijuana. Petitioner bases his 
claims  primarily  on  the  1836  Treaty  of  Washington,  in  which  various  Native 
American Tribes sold a large portion of land in Michigan to the federal government, 

a 2007 Consent Decree from the United States District Court for the Western District 
of Michigan, which permitted Native Americans to hunt, fish, plant, and gather on 
the former tribal land without state regulation, and the Indian Civil Rights Act of 

1968. 25 U.S.C. §§ 1301–1304. The Michigan Court of Appeals rejected the bulk of 
petitioner’s claims, ruling that the State of Michigan had jurisdiction to prosecute 
petitioner for his crimes. MacLeod, No. 326950, 2016 WL 3767496, at *2.   

    The determination of whether a state court is vested with jurisdiction under 
state law over a criminal case is a function of the state courts, not the federal courts. 
Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976); see also Daniel v. McQuiggin, 

678 F. Supp. 2d 547, 553 (E.D. Mich. 2009). The Sixth Circuit has noted that “[a] 
state court’s interpretation of state jurisdictional issues conclusively establishes 
jurisdiction for purposes of federal habeas review.” Strunk v. Martin, 27 F. App’x. 
473, 475 (6th Cir. 2001). Petitioner’s claims that the trial court lacked jurisdiction to 

try his case raises an issue of state law because it questions the interpretation of 
Michigan law, and is therefore not cognizable in federal habeas review. See United 
States ex. rel. Holliday v. Sheriff of Du Page Cty., 152 F. Supp. 2d 1004, 1013 (N.D. 

Ill. 2001); cf. Toler v. McGinnis, 23 F. App’x. 259, 266 (6th Cir. 2001) (district court 
lacked authority on habeas review to review petitioner’s claim that the state court 
erred in refusing to instruct jury on the requirements for extraterritorial jurisdiction, 
because the claim was contingent upon an interpretation of an alleged violation of 

state law). Petitioner is not entitled to relief on these claims.         
     B. Claims # 2, 18, 19, and 20. The Confrontation Clause claims.     
    Petitioner next alleges that his Sixth Amendment right to confrontation was 

violated.                                                                 
    Petitioner, in his second claim, alleges that his right to confrontation was 
violated when the prosecutor failed to produce certain endorsed witnesses for trial, 

namely, the confidential informants, as well as Detective Varoni.         
    The Sixth Amendment guarantees a defendant the right to confront witnesses 
and to have compulsory process for witnesses favorable to him or to her. However, 

the Sixth Amendment does not require the prosecution to call every witness who is 
competent to testify. United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992); 
Whittaker v. Lafler, 639 F. Supp. 2d 818, 825 (E.D. Mich. 2009). Further, the right 
to confrontation does not impose a duty upon the prosecution to call a particular 

witness.  United  States  v.  Bryant,  461  F.2d  912,  916  (6th  Cir.  1972).  Stated 
differently, the Confrontation Clause “is not a guarantee that the prosecution will 
call all the witnesses it has against the defendant.” United States v. Morgan, 757 

F.2d 1074, 1076 (10th Cir. 1985). In Cooper v. California, 386 U.S. 58, 62, n.2 
(1967), the U.S. Supreme Court found a habeas petitioner’s contention that he was 
deprived of his right to confrontation because the state did not produce an informant 
to testify against him to be “absolutely devoid of merit.” Id. Therefore, the Sixth 

Amendment right to confrontation “does not come into play where a potential 
witness neither testifies nor provides evidence at trial.” United States v. Porter, 764 
F.2d 1, 9 (1st Cir. 1985) (internal citations omitted).                   
    Federal law does not require the production of res gestae witnesses. Johnson 
v.  Hofbauer,  159  F.  Supp.  2d  582,  601  (E.D.  Mich.  2001).  Michigan  law’s 

requirement that the prosecutors produce res gestae witnesses is a matter of state 
law, and enforcement of this requirement is beyond the scope of federal habeas 
review. Collier v. Lafler, 419 F. App’x. 555, 559 (6th Cir. 2011). “[U]nder federal 

law, there is no obligation on the part of the prosecutor to call any particular witness 
unless the government has reason to believe that the testimony would exculpate the 
petitioner.” Atkins v. Foltz, 856 F.2d 192 (unpublished table decision) (6th Cir. Aug. 
24, 1988) (citing Bryant, 461 F.2d at 916). Thus, whether a prosecutor exercised due 

diligence in attempting to locate a res gestae witness is outside the scope of federal 
habeas review. Collier, 419 F. App’x. at 560. Petitioner presented no evidence that 
the confidential informants or Detective Varoni would have offered exculpatory 

evidence had they testified; he is not entitled to habeas relief.         
    As a related claim, petitioner contends that his right to confrontation was 
violated  by  the  admission  of  one  of  the  confidential  informant’s  out-of-court 
statements  to  the  police  that  he  had  purchased  marijuana  from  petitioner.  The 

Michigan Court of Appeals rejected the claim:                             
    Our review of the record shows that the detective who supervised two 
    of  the  controlled  buys  testified  that  Spohn  said  he  could  purchase 
    marijuana from defendant, and that defendant had a green pickup truck. 
    Although such statements by a confidential informant to a police officer 
    are testimonial, the record clearly shows that the statements were not 
    offered to establish the truth of the matter stated, but to show why the 
    police acted as they did. Specifically, they explained why officers set 
    up  controlled  buys  targeting  defendant  and  that  they  used  the 
    information about defendant’s truck to help locate the grow operation. 
    Statements offered to show why police officers acted as they did are not 
    hearsay. Spohn and his girlfriend did not testify against defendant at 
    trial, and Spohn’s testimonial statements were offered by the detective 
    to show why police acted as they did. Defendant fails to establish a 
    violation of the Confrontation Clause.                               

MacLeod, No. 326950, 2016 WL 3767496, at *5 (internal citations omitted). 
    Out of court statements that are testimonial in nature are barred by the Sixth 
Amendment  Confrontation  Clause  unless  the  witness  is  unavailable  and  the 
defendant has had a prior opportunity to cross-examine the witness, regardless of 
whether  such  statements  are  deemed  reliable  by  the  court.  See  Crawford  v. 
Washington, 541 U.S. 36, 68–69 (2004). However, the Confrontation Clause “does 
not bar the use of testimonial statements for purposes other than establishing the 
truth of the matter asserted.” Id. at 59, n.9; see also Tennessee v. Street, 471 U.S. 
409,  414  (1985)  (defendant’s  rights  under  the  Confrontation  Clause  were  not 
violated by introduction of an accomplice’s confession for the nonhearsay purpose 
of rebutting defendant’s testimony that his own confession was coercively derived 
from the accomplice’s statement). Indeed, “[i]n some circumstances, out of court 
statements  offered  for  the  limited  purpose  of  explaining  why  a  government 

investigation was undertaken have been determined not to be hearsay.” United States 
v. Gibbs, 506 F.3d 479, 486–87 (6th Cir. 2007) (quoting United States v. Martin, 
897 F.2d 1368, 1371 (6th Cir. 1990)). Evidence that is provided merely by way of 
background or is offered only to explain how certain events came to pass or why law 
enforcement officers took the actions that they did is not offered for the truth of the 

matter asserted, and thus cannot trigger a Confrontation Clause violation. United 
States v. Warman, 578 F.3d 320, 346 (6th Cir. 2009) (quoting United States v. 
Cromer, 389 F.3d 662, 676 (6th Cir. 2004)).                               

    In the present case, the admission of the confidential informant’s statements 
to the detective did not violate petitioner’s right to confrontation because they were 
not offered for the truth of the matter asserted but rather were simply offered to the 
jury as background about the investigation that led to the arrest of petitioner and the 

search of his property. E.g., United States v. Doxey, 833 F.3d 692, 708 (6th Cir. 
2016) (finding that informant’s statements about background leading to search were 
not offered for truth asserted). Morever, because the Mr. Spohn did not testify at 

trial, petitioner did not have a right to confront and impeach him at trial. Id. Thus, 
this  Court  rejects  petitioner’s  second  claim  and  his  related  nineteenth  claim 
involving his inability to impeach Mr. Spohn.                             
    Petitioner, in his eighteenth claim, alleges that his right to confrontation was 

violated  when  Detective  Patrick  Holt  was  permitted  to  testify  concerning  the 
statement  that  petitioner  made  to  Detective  Jason  Varoni,  rather  than  having 
Detective Varoni testify.                                                 
    Petitioner’s statements to the police are not testimonial hearsay, because they 
are admissions by a party-opponent. These statements are, by definition, not hearsay 

under either Federal Rule of Evidence 801(d)(2)(A) or Michigan Rule of Evidence 
801(d)(2)(A).  Because  the  prohibition  announced  in  Crawford  only  applies  to 
hearsay, that prohibition does not cover petitioner’s own admissions to the police. 

See United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006); see also Miller v. 
Stovall, 573 F. Supp. 2d 964, 997 (E.D. Mich. 2008). Petitioner is not entitled to 
relief on his eighteenth claim.                                           
    Petitioner, in his twentieth claim, alleges that his Sixth Amendment rights 

were violated when Michigan State Police Forensic Scientist Karen Brooks was 
permitted to testify about a laboratory report that she did not prepare.  
    Scientific  or  laboratory  reports  which  are  admitted  to  prove  a  fact  are 

testimonial  statements  for  the  purposes  of  the  Sixth  Amendment  right  to 
confrontation. Bullcoming v. New Mexico, 564 U.S. 647, 665 (2011); Melendez-Diaz 
v. Massachusetts, 557 U.S. 305, 310–11 (2009). Because they are testimonial, the 
reports cannot be admitted into evidence unless the analysts who wrote them are 

subject to cross-examination. Melendez-Diaz, 557 U.S. at 311.             
    Michigan State Police Forensic Scientist Karen Brooks, the testifying witness, 
did generate the report at issue, which was admitted as People’s Exhibit 8. (ECF No. 
14-10, PgID 1413.) That report plainly lists Karen Brooks’ name and bears her 
signature at the end of the report. Petitioner’s claim is without merit.  

    Petitioner also claims that the prosecutor violated its duty under Brady v. 
Maryland, 373 U.S. 83 (1963), by failing to turn this report over to the defense prior 
to trial.                                                                 

    It is true that suppression by the prosecution of evidence favorable to the 
defendant upon request violates due process, where the evidence is material to either 
guilt or punishment of the defendant, irrespective of the good or bad faith of the 
prosecution. Brady, 373 U.S. at 87. Evidence is material only if there is a reasonable 

probability that, had the evidence been disclosed to the defense, the result of the 
proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 
(1985). A “reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” Id. In Strickler v. Greene, 527 U.S. 263, 281–82 (1999), the 
Supreme  Court  articulated  three  essential  elements  of  a  Brady  claim:  (1)  the 
evidence at issue must be favorable to the accused, either because it is exculpatory, 
or because it is impeaching; (2) the evidence must have been suppressed by the State, 

either willfully or inadvertently; and (3) prejudice must have ensued. “Prejudice (or 
materiality) in the Brady context is a difficult test to meet.” Jamison v. Collins, 291 
F.3d 380, 388 (6th Cir. 2002).                                            
    Petitioner is not entitled to habeas relief because he failed to show that any of 
the suppressed material was exculpatory. A habeas petitioner bears the burden of 

showing the prosecution suppressed exculpatory evidence. See Bell v. Howes, 703 
F.3d 848, 853 (6th Cir. 2012). Allegations that are merely conclusory or which are 
purely speculative cannot support a Brady claim. Burns v. Lafler, 328 F. Supp. 2d 

711, 724 (E.D. Mich. 2004). “[M]ere speculation that a government file may contain 
Brady material is not sufficient” to prove a due-process violation. United States v. 
Driscoll,  970  F.2d  1472,  1482  (6th  Cir.1992),  abrogated  on  other  grounds  by 
Hampton v. United States, 191 F.3d 695 (6th Cir.1999). Petitioner has failed to show 

that any of this evidence exculpated him of this crime. Petitioner is therefore not 
entitled to habeas relief on his Brady claim. Burns, 328 F. Supp. 2d at 724. 
    Petitioner’s Brady claim also fails because the laboratory report was disclosed 

to petitioner during trial. Brady generally does not apply to the delayed disclosure 
of exculpatory information, but only to a complete failure by the prosecutor to 
disclose such information. United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) 
(internal citations omitted). If previously undisclosed evidence is disclosed during 

trial,  no  Brady  violation  occurs  unless  the  defendant  is  prejudiced  by  its 
nondisclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986); see also 
United States v. Bencs, 28 F.3d 555, 560–61 (6th Cir. 1994). The Sixth Circuit noted 

that “[t]he Supreme Court rejected the claim that the duty to disclose hinges on the 
usefulness of the material to pretrial preparation. Such a standard would ‘necessarily 
encompass incriminating evidence as well as exculpatory evidence, since knowledge 

of the prosecutor’s entire case would always be useful in planning the defense.’” 
Bencs, 28 F.3d at 560, n.5 (quoting United States v. Agurs, 427 U.S. 97, 112, n.20 
(1976)).                                                                  

    Petitioner is not entitled to relief on his twentieth claim.         
     C. Claims # 3, 22, and 24. The right to present a defense claims.   
    Petitioner alleges he was denied his right to present a defense.     
    “Just as an accused has the right to confront the prosecution’s witnesses for 

the purpose of challenging their testimony, he also has the right to present his own 
witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19 (1967). This 
right is a fundamental element of the due process of law. Id.; see also Crane v. 

Kentucky, 476 U.S. 683, 690 (1986) (“Whether rooted directly in the Due Process 
Clause  of  the  Fourteenth  Amendment,  or  in  the  Compulsory  Process  or 
Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal 
defendants ‘a meaningful opportunity to present a complete defense.’”) (internal 

citations  omitted).  However,  an  accused  in  a  criminal  case  does  not  have  an 
unfettered  right  to  offer  evidence  that  is  incompetent,  privileged,  or  otherwise 
inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 

37,  42  (1996).  The  Supreme  Court,  in  fact,  has  acknowledged  its  “traditional 
reluctance to impose constitutional constraints on ordinary evidentiary rulings by 
state trial courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court 

judges “wide latitude” to exclude evidence that is repetitive, marginally relevant, or 
that poses a risk of harassment, prejudice, or confusion of the issues. Id. (quoting 
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).                       

    Moreover, under the standard of review for habeas cases as enunciated in 
§ 2254(d)(1), it is not enough for a habeas petitioner to show that the state trial 
court’s decision to exclude potentially helpful evidence to the defense was erroneous 
or  incorrect.  Instead,  a  habeas  petitioner  must  show  that  the  state  trial  court’s 

decision to exclude the evidence was “an objectively unreasonable application of 
clearly established Supreme Court precedent.” Cf. Rockwell v. Yukins, 341 F.3d 507, 
511–12 (6th Cir. 2003).                                                   

    Petitioner, in his third claim, alleges he was denied the right to present a 
defense because the trial judge refused to allow him to bring up his Native American 
background. The Michigan Court of Appeals rejected the claim:             
    Defendant argues that, because the conduct for which he was criminally 
    charged accorded with the jurisdictional rights afforded him under the 
    aforementioned Decree, his Native American heritage was an essential 
    element  in  his  defense.  Defendant  asserted  and  proved  his  Native 
    American  heritage  in  the  context  of  the  jurisdictional  challenge; 
    however, once the trial court properly exercised jurisdiction over the 
    matter,  defendant’s  Native  American  heritage  could  provide  him 
    neither  immunity  nor  defense  under  the  MMMA.  Therefore,  his  
    heritage was neither relevant nor material. Consequently, defendant did 
    not suffer a constitutional deprivation of his right to present a defense, 
    and  the  trial  court  did  not  abuse  its  discretion  by  granting  the 
    prosecution’s motion in limine to prohibit defendant’s mention of his 
    heritage.                                                            

MacLeod, No. 326950, 2016 WL 3767496, at *6 (internal citation omitted).  
    The United States Supreme Court has “repeatedly held that a state court’s 
interpretation  of  state  law,  including  one  announced  on  direct  appeal  of  the 
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. 
Richey, 546 U.S. 74, 76 (2005). State courts are the “ultimate expositors of state 
law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential to establish 
an element of a crime, like the question whether a given element is necessary, is a 

question of state law, upon which federal habeas review is not available. See Sanford 
v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002). Likewise, “[d]ue process does not 
require that a defendant be permitted to present any defense he chooses. Rather, 

states are allowed to define the elements of, and defenses to, state crimes.” Lakin v. 
Stine, 80 F. App’x. 368, 373 (6th Cir. 2003) (citing Apprendi v. New Jersey, 530 
U.S. 466, 48487 (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84–86, (1986)). 
The circumstances under which a criminal defense may be asserted is thus a question 

of state law. Id.                                                         
    The Michigan Court of Appeals determined that petitioner’s Native American 
heritage did not provide a defense to the crimes. This Court must defer to that 

determination.                                                            
    Petitioner,  in  his  twenty-second  claim,  alleges  that  he  should  have  been 
permitted to introduce evidence that Mr. Spohn lied about being Native American, 

as it was relevant to an entrapment defense.                              
    Petitioner is not entitled to relief on this claim for several reasons. 
    First, in Michigan, the defense of entrapment is decided by the judge, not the 

jury. See People v. D'Angelo, 401 Mich. 167, 173–77 (1977); see also People v. 
Woods, 241 Mich. App. 545, 554 (2000). Petitioner did not assert an entrapment 
defense either before or at trial. In any event, the jury would not have decided any 
entrapment issue, hence, the judge’s refusal to allow petitioner to introduce evidence 

that Spohn had lied about his heritage would not have deprived petitioner of a 
defense.                                                                  
    Secondly, petitioner presented no evidence that he was entrapped by Spohn 

into committing a crime.                                                  
    Michigan has adopted the objective theory of entrapment.  See  People  v. 
Juillet, 439 Mich. 34, 52–54 (1991). Under an objective theory of entrapment, 
“entrapment occurs when the government induces or instigates the commission of a 

crime by one not ready and willing to commit it, rather than merely providing the 
opportunity to commit a crime.” Sosa v. Jones, 389 F.3d 644, 647 (6th Cir. 2004) 
(citing Russell, 411 U.S. at 445).                                        
    Spohn’s represented heritage did not induce petitioner into committing a 
crime he otherwise would not have because, regardless of his background, Spohn 

was not one of petitioner’s medical marijuana patients, the only people to whom 
MacLeod was allowed to sell or provide marijuana, and yet petitioner admitted to 
selling to non-patients anyway. (ECF No. 14-11, playing 10/14/14 Interview Audio, 

admitted as People’s Exhibit 31, PgID 1467.) The sale of marijuana to non-patients 
was the crime, which had nothing to do with Spohn’s heritage. See People v. Bylsma, 
315 Mich. App. 363, 384 (2016) (holding that a defendant may not assert a defense 
under Section 8 of the Michigan Medical Marijuana Act for sale or transfer of 

marijuana “to a patient whom he did not serve as a primary caregiver”) (emphasis 
in original). Petitioner is not entitled to relief on his twenty-second claim. 
    Petitioner’s twenty-fourth claim, in its heading, states that the judge prevented 

the defense from calling Mr. Spohn, Detective Varoni, or Ms. Richards as defense 
witnesses. However, the body of his argument is basically a rehash of the argument 
he  made  in  his  second  claim,  namely,  that  his  rights  were  violated  by  the 
prosecution’s failure to call these witnesses to testify. However, as mentioned when 

addressing petitioner’s second claim, supra, the Confrontation Clause does not 
require the prosecution to call all of its witnesses. Petitioner failed to show that these 
witnesses would have been exculpatory. He is not entitled to relief on his twenty-

fourth claim.                                                             
     D. Claims # 4 and 16. The ineffective assistance of trial counsel claims. 
    Petitioner next alleges he was denied the effective assistance of trial counsel. 

    To prevail on his ineffective assistance of counsel claims, petitioner must 
show that the state court’s conclusion regarding these claims was contrary to, or an 
unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984). See 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Strickland established a two-
prong test for claims of ineffective assistance of counsel: the petitioner must show 
(1) that counsel’s performance was deficient, and (2) that the deficient performance 
prejudiced the defense. Strickland, 466 U.S. at 687.                      

    Petitioner  first  contends  that  trial  counsel  was  ineffective  for  filing  a 
procedurally  defective  interlocutory  appeal  after  the  judge  denied  petitioner’s 
motion to dismiss and granted the prosecution’s motion in limine to exclude all 

references to petitioner’s Native American heritage.                      
    Petitioner is unable to show that he was prejudiced by trial counsel’s failure 
to file an interlocutory appeal in a correct manner because the Michigan Court of 
Appeals eventually addressed the claims that the petitioner wished to raise in an 

interlocutory appeal on his appeal of right and found them to be meritless. Because 
the petitioner failed to show that trial counsel was ineffective for failing to file an 
interlocutory appeal, he is not entitled to habeas relief. E.g., McKenzie v. Jones, 100 

F. App’x. 362, 363–64 (6th Cir. 2004).                                    
    Petitioner  next  contends  that  trial  counsel  was  ineffective  for  filing  an 
untimely  notice  to  remove  petitioner’s  criminal  case  to  the  federal  court.  The 

Michigan Court of Appeals rejected this claim, because petitioner failed to show that 
he had substantive grounds for removal to federal court under 28 U.S.C. §§ 1442, 
1442a, and 1443. MacLeod, No. 326950, 2016 WL 3767496, at *6.             

     A criminal prosecution may be removed from state to federal court where the 
defendant is the United States or any of its officers or agents, an officer of a federal 
court, or an officer of either House of Congress, a member of the armed forces who 
acted “under color of his office or status,” or a defendant who is denied or cannot 

enforce his civil rights or equal rights in the state court. 28 U.S.C. §§ 1442, 1442a, 
1443.                                                                     
    Petitioner is unable to show that his case fell within one of these statutory 

provisions  for  removal  of  a  state  court  criminal  action  to  the  federal  court. 
Petitioner’s request for removal to the federal court was denied not just on procedural 
grounds but also on the ground that petitioner failed to show that his case was 
removable to federal court. People of the State of Michigan v. Dustin Lee Macleod, 

15-cv-10614 (E.D. Mich. Feb. 19, 2015) (ECF No. 3, PgID 63.) Petitioner failed to 
show that he was prejudiced by counsel’s failure to file a timely notice of removal. 
    Petitioner next claims that trial counsel was ineffective for failing to raise 

certain Fourth Amendment challenges to the evidence.                      
    To  prove  that  counsel’s  failure  to  litigate  a  Fourth  Amendment  claim 
competently is the principal claim of ineffectiveness, a defendant “must also prove 

that his Fourth Amendment claim is meritorious and that there is a reasonable 
probability that the verdict would have been different absent the excludable evidence 
in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 

375 (1986).                                                               
    Petitioner first argues that trial counsel was ineffective for failing to challenge 
the initial police stop of petitioner on the ground that the stop was made to detain 
petitioner while a search warrant was executed on his house. The Michigan Court of 

Appeals rejected petitioner’s claim:                                      
    Defendant correctly notes that the United States Supreme Court has   
    held that the  Summers rule permitting law enforcement officers to   
    detain the occupants of premises being searched is limited to occupants 
    found within the immediate vicinity of the premises. Bailey v. US, ––– 
    U.S.  ––––;  133  S  Ct  1031;  185  L.Ed.2d  19  (2013);  Michigan  v. 
    Summers, 452 U.S. 692, 101 S Ct 2587, 69 L Ed 340 (1981). However,   
    any challenge of the initial stop based on the Summers/Bailey rule   
    would have been futile because it pertains to detention of an occupant 
    without an initial showing of probable cause that the occupant had   
    committed a crime. Summers, 452 U.S. at 693–695. In the instant case, 
    officers had probable cause to detain and arrest defendant for selling 
    marijuana to a confidential informant in three controlled buys. Defense 
    counsel is not ineffective for failing to follow a futile course of action.  
                                                                         
MacLeod, No. 326950, 2016 WL 3767496, at 7.                               
    The  police  had  probable  cause  to  detain  and  arrest  petitioner  for  selling 
marijuana to a confidential informant. Petitioner would have been unable to avail 

himself  of  the  Bailey/Summers  rule  to  suppress  the  evidence,  accordingly,  the 
Michigan Court of Appeals reasonably rejected petitioner’s claim.         
    Petitioner  next  contends  that  trial  counsel  failed  to  challenge  the  search 

warrants  on  the  ground  that  they  were  not  supported  by  probable  cause.  The 
Michigan Court of Appeals rejected this claim:                            
    In  the  instant  case,  the  search  warrant  affidavit  relayed  several 
    statements made by defendant during three undisputed controlled buys. 
    The statements were not reported by the CIs, but were captured by the 
    audio recorder/transmitter worn by the CI. Defendant commented on    
    the different strains of marijuana he grew, how much he had spent on 
    his marijuana business, what type of marijuana sells well, and the   
    proximity of his grow house to his residence, and he asked one of the 
    CI's “if he could sell a couple of ounces for him to help keep his yield 
    down.” The search warrant affidavit also relayed information about   
    defendant’s criminal history, and results of a comparative analysis of 
    previously subpoenaed electrical records from similar buildings in the 
    area of defendant’s grow house. Considering the totality of the affidavit 
    and  mindful  of  our  deference  to  a  magistrate’s  probable  cause 
    determination, we find that the search warrant affidavit provided a  
    “‘substantial basis’ for inferring a ‘fair probability’ that contraband or 
    evidence  of  a  crime  will  be  found  in  a  particular  place[,]”. 
    Consequently, the defendant’s argument that the search warrant was   
    devoid of probable cause fails, as does his contention that trial counsel 
    performed deficiently by failing to challenge it.                    

MacLeod, No. 326950, 2016 WL 3767496, at *7 (internal citations omitted). 
    The  search  warrant  affidavit  contained  sufficient  evidence  to  establish 
probable cause for the search. The Michigan Court of Appeals reasonably rejected 
petitioner’s ineffective assistance of counsel claim because petitioner failed to show 
that trial counsel could have successfully challenged the search warrant had he filed 

a motion to suppress.                                                     
    Petitioner next contends that trial counsel was ineffective for failing to assert 
two defenses that are available under the Michigan Medical Marihuana Act or 

MMMA.                                                                     
    The Michigan Court of Appeals rejected petitioner’s claim at length: 
    Defendant  next  contends  that  defense  counsel  rendered  ineffective 
    assistance  when  he  failed  to  assert  defenses  available  under  the 
    MMMA,   specifically,  an  affirmative  defense  under  § 8,  MCL    
    333.26428, and an immunity defense under § 4, MCL 333. 26424.        

    Defendant  was  charged  with  manufacturing  with  intent  to  deliver 
    between 5 and 45 grams of marijuana, and possession of 20–200 plants 
    with intent to deliver. In order to prevail on a pretrial § 8 defense, 
    defendant had to provide evidence that his physician recommended the 
    medical  use  of  marijuana  to  treat  serious  or  debilitating  medical 
    conditions subsequent to a full medical assessment that occurred in the 
    context  of  a  bona-fide  physician-patient  relationship.  MCL     
    333.26428(a)(1). In addition, the defendant had to show that the one to 
    two pounds of marijuana and 122 marijuana plants he possessed was    
    “not  more  than  reasonably  necessary”  for  his  treatment.  ML   
    333.26428(a)(2). Further, defendant had to prove that he was engaged 
    in the medical use of marijuana to treat or alleviate his serious or 
    debilitating  medical  condition.  MCL  333.26428(a)(3).  If  defendant 
    satisfied all of these elements, he could assert a § 8 defense in a motion 
    to dismiss and, following an evidentiary hearing where defendant met 
    the elements set forth above, the relevant charges would have been   
    dismissed. MCL 333.26428(b).                                         

    Defendant does not indicate on appeal how he would have met the      
    requirements of § 8. With the possible exception of his mother, nothing 
    suggests  that  defendant  could  have  provided  prima  facie  evidence 
establishing that he, his other three registered patients, his regulars, 
whom he declined to identify, or any of his random buyers satisfied the 
requirements of § 8(a)(1). Even if he could have satisfied § 8(a)(1), that 
he had product enough to provide for his regulars while also supplying 
the unpredictable needs of random buyers renders it unlikely that he 
could have presented prima facie evidence satisfying § 8(a)(2). In light 
of defendant’s admissions and the amount of marijuana seized, there  
appears no reasonable probability that the result of the proceedings 
would have been different had defense counsel moved to dismiss under 
§ 8.                                                                 

Likewise, there is no reasonable probability that defendant would have 
been able to assert a successful § 4 defense, which required, among  
other  things,  that  defendant  not  possess  more  than  2.5  ounces  of 
marijuana  and  12  plants  for  each  qualifying  patient.  MCL     
333.26424(b)(1).  Defendant  argues  that,  if  defense  counsel  had 
challenged inclusion of the “clones” in the total plant count, the count 
would have been reduced to 30 plants, which fell within the amount he 
was allowed to have under § 4. However, even if the clones had been  
excluded, defendant admittedly had one to two pounds of marijuana in 
his residence, which exceeded the 10 ounces he was allowed under § 4. 

Further, the marijuana plants had to be kept in an “enclosed, locked 
facility.”  333.26424(b)(2).  An  “enclosed  locked  facility”  means  “a 
closet, room, or other comparable, stationary, and fully enclosed area 
equipped with secured locks or other functioning security devices that 
permit  access  only  by  a  registered  primary  caregiver  or  registered 
qualifying  patient.”  MCL  333.26423(d).  Defendant  told  Detective 
Varoni that his father had a key to the grow operation, but that his father 
did not grow, smoke, or even touch marijuana. Clearly, defendant’s   
father was not a proper “registered primary caregiver” or “registered 
qualifying patient” entitled to have a key to the “enclosed, locked  
facility” under MCL 333.26423(d). Because defendant possessed in     
excess of the 10 ounces of usable marijuana allowed him under § 4, and 
because there is no evidence that his father's access to the grow facility 
was in accordance with MCL 333.26423(d), immunity under § 4 was      
not  available  to  defendant.  Consequently,  defense  counsel  did  not 
render ineffective assistance for failing to advocate a meritless position.  
MacLeod, No. 326950, 2016 WL 3767496, at *8 (internal citations omitted).  
    Defense counsel must investigate all apparently substantial defenses available 

to the defendant and must assert them in a timely manner. Fornash v. Marshall, 686 
F.2d 1179, 1187 (6th Cir. 1982). The right to the effective assistance of counsel is 
violated where, through his or her own ineffectiveness or incompetence, defense 

counsel deprives a criminal defendant of a substantial defense. Williams v. Abshire, 
544 F. Supp. 315, 318 (E.D. Mich. 1982). The Supreme Court, however, “has never 
required defense counsel to pursue every claim or defense, regardless of its merit, 
viability, or realistic chance for success.” Knowles, 556 U.S. at 123.    

    For the reasons stated by the Michigan Court of Appeals in its opinion, 
petitioner failed to offer any evidence that he had a viable affirmative defense or 
immunity  defense  under  Michigan’s  medical  marijuana  law.  Accordingly,  the 

Michigan Court of Appeals reasonably rejected these claims.               
    Petitioner next alleges that his trial counsel was ineffective for failing to move 
to dismiss his sister Megan MacLeod’s felony arrest warrant on the ground that she 
was on medical furlough from the jail. The Michigan Court of Appeals rejected this 

claim:                                                                    
    Defendant  fails  to  support  his  contention  that  defense  counsel 
    performed deficiently by, as the prosecution puts it in his brief to this 
    Court, “failing to take on a separate client and secure a favorable  
    outcome for her.” Further, although Megan MacLeod had been on        
    medical furlough, she had remained at large for 10 months after the date 
    ordered for her return to the Cheboygan County Jail. Thus, defendant’s 
    claim is without merit.                                              

MacLeod, No. 326950, 2016 WL 3767496, at *9.                              
    Failing to file a frivolous motion to dismiss does not constitute ineffective 
assistance of counsel. Goldsby v. United States, 152 F. App’x. 431, 438 (6th Cir. 
2005). Petitioner failed to show that counsel had a legitimate basis to bring a motion 
to dismiss the charge against Ms. Macleod or even standing to bring such a motion 
on behalf of someone who was not his client. Counsel was thus not ineffective for 

failing to bring such a motion.                                           
    Petitioner next alleges that defense counsel was ineffective for failing to 
object to the prosecution’s introduction into evidence of the audio recordings of the 

controlled  buys  on  the  ground  that  the  recordings  constituted  404(b)  evidence 
admitted to show petitioner’s propensity to make such sales. The Michigan Court of 
Appeals rejected this claim, finding that this evidence was admissible under M.R.E. 
404(b). MacLeod, No. 326950, 2016 WL 3767496, at *9–10.                   

    Federal habeas courts “‘must defer to a state court’s interpretation of its own 
rules  of  evidence  and  procedure’  when  assessing  a  habeas  petition.”  Miskel  v. 
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610, 

614 (6th Cir. 1988)). Because the Michigan Court of Appeals determined that the 
audio recordings were admissible under M.R.E. 404(b), this Court must defer to that 
determination in resolving petitioner’s ineffective assistance of counsel claim. E.g., 
Brooks v. Anderson, 292 F. App’x. 431, 437–38 (6th Cir. 2008). Because this Court 
“cannot logically grant the writ based on ineffective assistance of counsel without 

determining that the state court erred in its interpretation of its own law,” this Court 
is constrained to reject this ineffective assistance of trial counsel claim. Davis v. 
Straub, 430 F.3d 281, 291 (6th Cir. 2005).                                

    Petitioner next argues that trial counsel was ineffective for failing to call Mr. 
Spohn, his girlfriend, and Detective Varoni as defense witnesses.         
    The Michigan Court of Appeals rejected petitioner’s claim:           
    Defendant asserts that, if defense counsel “had done his investigation 
    up front and his own subpoenas a different result would have been    
    reasonably  probable.”  Defendant  provides  no  rationale  for  this 
    assertion, nor any indication of how the result of the proceeding would 
    have differed had defense counsel subpoenaed the CIs and Detective   
    Varoni. Defendant received a missing-witness instruction for Spohn,  
    informing the jury that it could infer that his testimony would have been 
    harmful  to  the  prosecution,  and  it  is  not  clear  what  information 
    Detective  Varoni  could  provide,  other  than  substantiation  of  
    defendant’s admissions. Therefore, given the nature of the evidence and 
    the failure of defendant to explain how their testimony would have   
    affected the outcome of the trial, defendant has failed to establish that 
    he  was  prejudiced  by  defense  counsel’s  failure  to  subpoena  these 
    witnesses.                                                           

MacLeod, No. 326950, 2016 WL 3767496, at *10.                             
    Petitioner failed to provide any affidavits from these witnesses in his appeal 
of right or post-conviction motion with the state courts, nor has he provided this 
Court with any affidavits from these witnesses concerning their proposed testimony 
and  willingness  to  testify  on  the  petitioner’s  behalf.  Conclusory  allegations  of 
ineffective assistance of counsel, without any evidentiary support, do not provide a 
basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). 

Petitioner has failed to attach any offer of proof or any affidavits sworn by the 
proposed witnesses. In the absence of such proof, petitioner is unable to establish 
that he was prejudiced by counsel’s failure to call these witnesses to testify at trial, 

so as to support the second prong of an ineffective assistance of counsel claim. E.g., 
Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).                       
    Finally, counsel did obtain a missing witness instruction from the court, 
instructing  the  jurors  that  Spohn’s  testimony  would  have  been  harmful  to  the 

prosecution. Trial counsel’s decision to capitalize on Spohn’s absence, rather than 
to request the production of this witness, was a matter of reasonable trial strategy 
that defeats petitioner’s claim. E.g., Collier, 419 F. App’x at 560–61. Petitioner is 

not entitled to habeas relief on his fourth claim.                        
    In his sixteenth claim, petitioner alleges twenty-one additional ineffective 
assistance of trial counsel claims that he raised in his post-conviction motion. Some 
of these claims appear to be a rehash of the claims raised in petitioner’s fourth claim. 

    Petitioner first argues that trial counsel was ineffective for failing to file a 
motion to quash the information on the harboring a fugitive charge. Petitioner again 
argues that he could not be charged with harboring a fugitive because his sister was 

on medical furlough from the jail. The Michigan Court of Appeals rejected a similar 
claim on petitioner’s direct appeal, finding that counsel was not ineffective for 
failing to file a motion to dismiss on Ms. Macleod’s behalf because she remained at 

large for ten months from the county jail. MacLeod, No. 326950, 2016 WL 3767496, 
at  *9.  In  this  case,  there  was  sufficient  evidence  presented  at  the  preliminary 
examination to support a harboring a felon charge. Accordingly, petitioner is unable 

to  show  that  counsel  was  ineffective  for  failing  to  file  a  motion  to  quash  the 
information. E.g., Dell v. Straub, 194 F. Supp. 2d 629, 649 (E.D. Mich. 2002). 
    Petitioner next claims that trial counsel was ineffective for failing to request a 
Franks hearing to challenge the veracity of the affiant’s affidavit to the search 

warrant. Petitioner claims that the search warrant was fatally defective because the 
affidavit in support of the warrant omitted the fact that petitioner was a Medical 
Marihuana Primary Caregiver under Michigan law.                           

    In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court 
held that an affidavit of probable cause in support of a request for a search warrant 
that is valid on its face may be challenged by a defendant if it can be shown that (1) 
the  affidavit  contains  intentionally  or  recklessly  false  statements,  and  (2)  the 

affidavit purged of its falsities would not be sufficient to support a finding of 
probable cause. Id. at 171–72.                                            
    In the present case, even if the detective had included information in the 

affidavit  that  petitioner  was  licensed  to  sell  medical  marijuana,  there  was  still 
sufficient evidence to support the issuance of a search warrant in this case. The 
affidavit indicated that petitioner had sold marijuana to non-patients, which itself 

would be a violation of Michigan law. (ECF No. 5-1, PgID 760–61.) Because there 
was sufficient information to support the issuance of a search warrant, counsel was 
not ineffective in failing to conduct a Franks hearing or to otherwise investigate for 

such a hearing. E.g., Fudge v. United States, 673 F. Supp. 2d 568, 576–77 (W.D. 
Mich. 2009).                                                              
    Petitioner next contends that trial counsel was ineffective for failing to move 
to suppress the search warrant on the ground that the magistrate lacked jurisdiction 

to issue a search warrant in Indian country. Petitioner presented no evidence that his 
property was located in Indian country, hence, counsel was not ineffective for failing 
to move to challenge the search warrant on the basis.                     

    Petitioner next contends that counsel was ineffective for failing to file a 
motion to dismiss based on police misconduct. Petitioner does not indicate what 
misconduct the police engaged in. Conclusory allegations of ineffective assistance 
of counsel, without any evidentiary support, do not provide a basis for habeas relief. 

See Workman, 178 F.3d at 771. Petitioner’s claim is conclusory and unsupported.  
    Petitioner next contends that trial counsel was ineffective for failing to file an 
entrapment motion. When addressing petitioner’s right to present a defense claim, 

supra, this Court noted that petitioner presented no evidence that he had a valid 
entrapment defense. Trial counsel’s decision not to pursue an entrapment defense 
was not deficient or prejudicial since such a defense was unlikely to succeed. E.g., 

Mayes v. United States, 93 F. Supp. 2d 882, 891 (E.D. Tenn. 2000).        
    Petitioner next contends that trial counsel was ineffective for failing to move 
for a mistrial after Juror Tricia St. Pierre returned to the jury room during voir dire 

with the other jurors but before she was peremptorily challenged by the defense. 
Petitioner claims that this ran the risk of Ms. St. Pierre sharing extra-judicial facts 
with the other jurors concerning her knowledge of petitioner. Petitioner presented 
no evidence to the state courts or this Court that Ms. St. Pierre discussed any extra-

judicial facts with the other jurors. Counsel’s failure to make a frivolous motion for 
mistrial does not amount to the ineffective assistance of counsel. E.g., Rockwell v. 
Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008).                       

    Petitioner next contends that trial counsel should have moved to sever the 
felon in possession charge from the other charges, on the ground that the jurors 
would be unduly prejudiced into convicting him once they heard that he had a prior 
conviction.                                                               

    “Under Michigan law, severance is required only when a defendant shows 
that it is necessary to avoid prejudice to his substantial rights.” Clark v. McLemore, 
291 F. Supp. 2d 535, 545 (E.D. Mich. 2003) (citing M.C.R. 6.121(C)). Under M.C.R. 

6.120(B),  a  court  must  sever  offenses  that  are  not  related  as  defined  in  MCR 
6.120(B). MCR 6.120(B) defines related offenses that are those “based on (a) the 
same conduct, or (b) a series of connected acts, or (c) a series of acts constituting 

part of a single scheme or plan.”                                         
    Petitioner’s felon in possession of a firearm charge arose from the same 
conduct or acts as the other charges, hence, there was no basis under Michigan law 

to move for severance of the charges. Petitioner has presented no case authority to 
establish that he would have been entitled to a separate trial on his felon in possession 
of a firearm charge and is thus not entitled to his claim of ineffective assistance of 
counsel based on counsel’s failure to file a motion to sever the felon in possession 

charge. E.g., Mattox v. Davis, 549 F. Supp. 2d 877, 932 (W.D. Mich. 2008). 
    Petitioner next contends that trial counsel was ineffective for failing to move 
for an expert to challenge Detective Halleck’s opinion about the 92 clones and their 

root systems and height and to whether they qualified as plants under Michigan’s 
drug laws.                                                                
    A habeas petitioner’s claim that trial counsel was ineffective for failing to call 
an expert witness cannot be based on speculation. Keith v. Mitchell, 455 F.3d 662, 

672 (6th Cir. 2006). Petitioner presented this Court with no evidence that he has an 
expert who would impeach Detective Halleck’s testimony about the clones and is 
thus not entitled to relief on his ineffective assistance of counsel claim. 
    Petitioner next claims that trial counsel was ineffective for failing to request a 
continuance to secure the presence of Mr. Spohn, Detective Varoni, Ms. Richards, 

or Joe Medicine to testify for the defense. This Court has already rejected petitioner’s 
related Confrontation Clause claim on the ground that petitioner failed to show that 
any  of  these  witnesses  would  offer  exculpatory  testimony.  Petitioner  was  not 

prejudiced by his trial counsel’s failure to request a continuance absent any showing 
regarding how additional preparation time would have aided petitioner’s case. See 
Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at *5 (6th Cir. Nov. 30, 2016). 
    Petitioner next contends that trial counsel was ineffective for failing to move 

for a directed verdict on the felony-firearm and harboring a fugitive charges. As will 
be discussed when addressing petitioner’s sufficiency of evidence claims, infra, 
sufficient evidence supported the verdict. Counsel’s failure to move for a directed 

verdict did not amount to ineffective assistance of counsel. Maupin v. Smith, 785 
F.2d 135, 140 (6th Cir. 1986); see also Hurley v. United States, 10 F. App’x. 257, 
261 (6th Cir. 2001).                                                      
    Petitioner next claims that trial counsel was ineffective for failing to move for 

the trial judge to recuse himself on the basis of the fact that he exhibited racial 
prejudice against Native Americans. Petitioner presented no evidence to support his 
claim that the trial judge displayed racial bias. Because petitioner has failed to show 

that the judge was biased against him, counsel was not ineffective for failing to 
move for the judge to be disqualified. E.g., Coley v. Bagley, 706 F.3d 741, 752 (6th 
Cir. 2013).                                                              

   Petitioner next claims that trial counsel was ineffective for failing to offer 
evidence that the various treaties and consent agreements between the United States 
Government and the Native American tribes allowed petitioner to possess a firearm, 

even if he was a convicted felon. Petitioner offers no caselaw in support of this 
claim and the Michigan courts had already determined that the State of Michigan 
had the right to prosecute petitioner and that his Native American status did not 
provide a defense to these charges.                                      

   Petitioner  also  claims  that  trial  counsel  failed  to  challenge  the  felon  in 
possession  charge  on  the  ground  that  more  than  five  years  had  elapsed  since 
petitioner’s last incarceration, thus, restoring petitioner’s right to carry a firearm. 

   The elements of felon in possession of a firearm in Michigan are: (1) the 
defendant was convicted of a felony, (2) the defendant possessed a firearm, and (3) 
at the time of possession, less than three or five years, depending on the underlying 
felony, has passed since the defendant had completed his term of incarceration, 

satisfied all conditions of probation and parole, and paid all fines. Parker v. Renico, 
506 F.3d 444, 448 (6th Cir. 2007) (citing Mich. Comp. Laws § 750.224f). Petitioner 
presented no evidence to this Court that he had completed his term of incarceration, 

satisfied all conditions of probation or parole, or paid all his fines so as to have his 
civil rights reinstated under Michigan law, so as to allow him to carry a firearm. 
Petitioner  therefore  failed  to  show  that  counsel  was  ineffective  for  failing  to 

challenge the felon in possession charge on this basis.                  
   Petitioner next contends that trial counsel was ineffective for failing to object 
to the prosecutorial misconduct that he alleges in his thirteenth and seventeenth 

claims. As the Court will discuss, infra, petitioner failed to show that the prosecutor 
committed misconduct. To show prejudice under Strickland for failing to object to 
prosecutorial misconduct, a habeas petitioner must show that but for the alleged 
error of his trial counsel in failing to object to the prosecutor’s improper questions 

and arguments, there is a reasonable probability that the proceeding would have 
been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). Because the 
prosecutor did not commit misconduct, petitioner is unable to establish that he was 

prejudiced by counsel’s failure to object. Slagle v. Bagley, 457 F.3d 501, 528 (6th 
Cir. 2006).                                                              
   Petitioner next contends that trial counsel was ineffective for failing to object 
to the jury empanelment process, which he claims has led to an underrepresentation 

of racial minorities on Cheboygan County juries. As discussed when addressing 
petitioner’s systematic exclusion claim, infra, petitioner failed to show that racial 
minorities, particularly Native Americans, are being systematically excluded from 

Cheboygan County juries. Because petitioner failed to show that racial minorities 
were  being  systematically  excluded  from  Cheboygan  County  juries,  defense 
counsel was not ineffective for failing to object to the jury panel or the jury selection 

system. E.g., Greene v. Lafler, 447 F. Supp. 2d 780, 796 (E.D. Mich. 2006). 
   Petitioner next contends that trial counsel was ineffective for failing to object 
to the admission of the audiotape recordings of the undercover purchases of the 

marijuana, because they were hearsay evidence.                           
   This Court already determined that admission of the tape recordings did not 
violate petitioner’s right to confrontation because they were offered not for the truth 
of the matter asserted, but for the non-hearsay purpose of establishing why the 

police acted the way they did. Because the audiotape recordings were admitted for 
a non-hearsay purpose, trial counsel was not ineffective for failing to object to their 
admission. E.g., Flood v. Phillips, 90 F. App’x. 108, 119 (6th Cir. 2004). 

   Petitioner next contends that trial counsel was ineffective for failing to object 
to what he alleges are erroneous jury instructions regarding the felony-firearm 
charge. As will be discussed when addressing petitioner’s instructional error claim, 
infra,  the  felony-firearm  instruction  correctly  reflected  Michigan  law.  “An 

attorney’s failure to object to jury instructions is deficient only if the petitioner can 
establish that the instructions were inaccurate.” Daniels v. Lafler, 501 F.3d 735, 743 
(6th Cir. 2007). Defense counsel was not deficient for failing to object to the 
instruction given on the elements of felony-firearm, because the instruction was an 
accurate reflection of the law. Id.                                      

    Petitioner next contends that trial counsel was ineffective for failing to object 
to the trial court’s alleged lack of jurisdiction.                       
    The Michigan Court of Appeals fully evaluated petitioner’s jurisdictional 

claims on his direct appeal and determined that they had no merit. Petitioner was not 
prejudiced by any alleged failure on trial counsel’s part to object to the alleged 
jurisdictional defect in this case. E.g., Wright v. Angelone, 151 F.3d 151, 161 (4th 
Cir. 1998).                                                               

    Petitioner next contends that trial counsel was ineffective for failing to object 
to the sentencing guidelines.                                             
    A right to the effective assistance of counsel exists during sentencing in both 

noncapital and capital cases. Lafler v. Cooper, 566 U.S. 156, 165 (2012). Although 
sentencing does not involve a criminal defendant’s guilt or innocence, “ineffective 
assistance of counsel during a sentencing hearing can result in Strickland prejudice 
because ‘any amount of [additional] jail time has Sixth Amendment significance.’” 

Id. (quoting Glover v. United States, 531 U.S. 198, 203 (2001)).          
    Petitioner raised this claim on post-conviction review, which was rejected by 
the state trial and appellate courts. State courts are the final arbiters of state law. See 

Bradshaw v. Richey, 546 U.S. at 76. Because this Court “cannot logically grant the 
writ based on ineffective assistance of counsel without determining that the state 
court erred in its interpretation of its own law,” this Court must reject this ineffective 

assistance of trial counsel claim. Davis v. Straub, 430 F.3d at 291. In this case, the 
trial  judge  and  the  Michigan  appellate  courts  rejected  petitioner’s  sentencing 
guidelines claim. Petitioner is therefore unable to show that he was prejudiced by 

his trial counsel’s purported ineffectiveness in failing to challenge the scoring of the 
sentencing guidelines. E.g., Coleman v. Curtin, 425 F. App’x. 483, 484–85 (6th Cir. 
2011).                                                                    
    Petitioner  next  contends  that  trial  counsel  was  ineffective  for  conceding 

petitioner’s guilt on some charges in his opening statement. Petitioner argues that 
this  is  tantamount  to  the  constructive  denial  of  counsel,  which  should  lead  to 
automatic reversal of his conviction.                                     

    The Supreme Court has held that a defense counsel’s failure to obtain a 
criminal defendant’s express consent to a strategy of conceding guilt at the guilt 
phase  of  a  capital  trial  does  not  automatically  render  counsel’s  performance 
deficient. Florida v. Nixon, 543 U.S. 175, 192 (2004). The Supreme Court has also 

explained that the Strickland standard governs the analysis of a trial counsel’s 
strategic decision to concede guilt, and not the presumed prejudice standard found 
in United States v. Cronic, 466 U.S. 648 (1984). Nixon, 543 U.S. at 189–92. 
    Petitioner’s claim is without merit. There is no evidence that petitioner’s 
counsel clearly conceded petitioner’s guilt as to any of the charges. Petitioner’s 

counsel merely mentioned that some elements, such as the fact that the charged 
offenses occurred in Cheboygan County, would not be in dispute. Defense counsel 
did go on to argue that the prosecutor had the entire burden of proof and that the 

jurors at the end of the case would be struggling with the issues regarding the 
elements of the crimes. (ECF No. 14-9, PgID 1199–1201.) When the statements are 
viewed in the context that they were made, counsel never conceded guilt with respect 
to any charge. E.g., Poindexter v. Mitchell, 454 F.3d 564, 581–82 (6th Cir. 2006). 

    Petitioner next claims, without any support, that his counsel did not know the 
law. Petitioner’s claim is conclusory, thus, he is not entitled to relief. 
    Petitioner finally claims that trial counsel was ineffective for failing to present 

evidence that petitioner as a primary caregiver was entitled to compensation for costs 
under Michigan’s medical marijuana law. As has been discussed several times, 
petitioner’s acts were not permissible under Michigan’s medical marijuana law. 
Counsel was not ineffective for failing to present such evidence. Petitioner is not 

entitled to relief on his sixteenth claim.                                
     E. Claim # 9. The untimely habitual offender notice claim.          
    Petitioner asks this Court to vacate his habitual offender conviction because 

the habitual offender notice was untimely filed.                          
    Petitioner’s claim involving the application of Michigan’s habitual offender 
laws is non-cognizable on habeas review, because it involves an application of state 

law. See Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. Mich. 2009); Grays v. 
Lafler, 618 F. Supp. 2d 736, 751 (W.D. Mich. 2008). Petitioner’s claim that he 
received inadequate notice of the habitual offender charge under Michigan law thus 

does not state a claim that is cognizable in federal habeas review. See Tolbert v. 
LeCureaux, 811 F. Supp. 1237, 1240–41 (E.D. Mich. 1993). Due process does not 
require advance notice that a trial on a substantive criminal charge will be followed 
by an habitual offender charge. Due process only requires that a defendant be given 

a reasonable notice and opportunity to be heard relative to the habitual offender 
charge. Oyler v. Boles, 368 U.S. 448, 452 (1962).                         
    Petitioner did not dispute, either at his sentencing, or more importantly, in his 

habeas petition, that he had prior convictions that would make him eligible to be 
sentenced as an habitual offender, nor did he object or seek a continuance based on 
the absence of advance notice of the sentence enhancement. Therefore, petitioner 
cannot  complain  that  he  was  denied  due  process.  Oyler,  368  U.S.  at  453–54. 

Petitioner is not entitled to habeas relief on his ninth claim.           
     F. Claim # 10. The Double Jeopardy claim.                           
    Petitioner next argues that his convictions for manufacturing and possession 

with intent to deliver marijuana violate the Double Jeopardy Clause.      
    The  Double  Jeopardy  Clause  serves  the  function  of  preventing  both 
successive punishments and successive prosecutions. United States v. Ursery, 518 

U.S. 267, 273 (1996). The protection against multiple punishments prohibits the 
government from “punishing twice or attempting a second time to punish criminally 
for the same offense.” Witte v. United States, 515 U.S. 389, 396 (1995) (quoting 

Helvering v. Mitchell, 303 U.S. 391, 399 (1938)). Although the Double Jeopardy 
Clause protects a defendant against cumulative punishments for convictions on the 
same offense, the clause does not prohibit the state from prosecuting a defendant for 
such multiple offenses in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500 

(1984). Moreover, whether punishments are multiple, so as to violate the Double 
Jeopardy Clause, is essentially a question of legislative intent. Id. at 499. 
    When  multiple  convictions  are  secured  at  a  single  trial,  the  test  for 

determining whether two offenses are sufficiently distinguishable to permit the 
imposition of cumulative punishment is that set forth in Blockburger v. United 
States, 284 U.S. 299, 304 (1932). Brown v. Ohio, 432 U.S. 161, 166 (1977). As the 
Supreme Court explained that test in Brown:                               

     “The  applicable  rule  is  that  where  the  same  act  or  transaction 
     constitutes a violation of two distinct statutory provisions, the test to 
     be applied to determine whether there are two offenses or only one, is 
     whether each provision requires proof of an additional fact which the 
     other does not. . . .” This test emphasizes the elements of the two 
     crimes. “If each requires proof of a fact that the other does not, the 
     Blockburger test is satisfied, notwithstanding a substantial overlap in 
     the proof offered to establish the crimes. . . .”                   
Id. at 166 (quoting Iannelli v. United States, 420 U.S. 770, 785, n.17 (1975). 

    Analysis  of  this  issue  requires  the  Court  to  determine  “whether  [the 
legislature]  intended  to  punish  each  statutory  violation  separately.”  Pandelli  v. 
United States, 635 F.2d 533, 536 (6th Cir. 1980) (quoting Jeffers v. United States, 
432 U.S. 137, 155 (1977)). “To determine the [legislative] intent it is necessary to 
examine the statutory language and the legislative history, as well as to utilize other 
techniques of statutory construction.” Pandelli, 635 F.2d at 536. If the legislative 

intent is not clearly expressed or cannot be discerned by accepted techniques of 
statutory construction, then the Court must analyze the two crimes to determine if 
the elements completely overlap according to the Blockburger test. Under this test: 

    [The Court] focuses on the statutory elements of the two crimes with 
    which a defendant has been charged, not on the proof that is offered or 
    relied upon to secure a conviction. . . . If each [offense] requires proof 
    of a fact that the other does not, the Blockburger test is satisfied, 
    notwithstanding a substantial overlap in the proof offered to establish 
    the crimes.                                                          

United States v. Barrett, 933 F.2d 355, 36061 (6th Cir. 1991) (internal citations and 
quotes omitted). Thus, the Double Jeopardy Clause is not violated merely because 
the same evidence is used to establish more than one statutory violation.  
    However, in deciding a habeas petitioner’s Double Jeopardy claim, a federal 
habeas court is bound by a state appellate court’s interpretation of different state 
statutes to permit a defendant who is convicted of multiple offenses to be punished 
for both offenses. See Palmer v. Haviland, 273 F. App’x. 480, 486–87 (6th Cir. 
2008).  Once  a  state  court  has  determined  that  the  state  legislature  intended 

cumulative punishments for separate offenses, a federal habeas court must defer to 
that  determination.  See  Banner  v.  Davis,  886  F.2d  777,  780  (6th  Cir.  1989). 
    Michigan  courts  have  held  that  convictions  for  both  manufacture  and 

possession of a controlled substance do not violate the Double Jeopardy Clause, 
because each offense requires proof of a fact that the other offense does not. See 
People v. Baham, 321 Mich. App. 228, 246–48 (2017).                       
    The Michigan Court of Appeals determined that the Michigan Legislature 

intended cumulative punishment for the offenses of manufacturing and possession 
of a controlled substance. This Court sitting on federal habeas review is bound by 
that determination. White v. Howes, 586 F.3d 1025, 1029 (6th Cir. 2009). Because 

this determination is binding in federal habeas corpus, petitioner’s double jeopardy 
claim lacks merit. E.g., Rodgers v. Bock, 49 F. App’x. 596, 597 (6th Cir. 2002). 
Because the Michigan Court of Appeals clearly held that multiple punishments for 
the two crimes are permissible under Michigan law, the state trial court did not 

violate petitioner’s federal right against double jeopardy. Palmer, 273 F. App’x. at 
487.                                                                      
     G. Claim # 11. The Batson claim.                                    
    Petitioner  next  alleges  that  the  prosecutor  unconstitutionally  used  a 

peremptory strike to excuse a Native American juror based on his ethnicity.  
    The  Equal  Protection  Clause  of  the  Fourteenth  Amendment  prohibits  a 
prosecutor from challenging potential jurors solely on account of their race. Batson 

v. Kentucky, 476 U.S. 79, 89 (1986). A criminal defendant may establish a prima 
facie case of purposeful discrimination in the selection of a petit jury solely on 
evidence  concerning  the  prosecutor’s  exercise  of  peremptory  challenges  at  the 
defendant’s trial. Id. at 96. To establish such a case, a defendant must show that he 

or she is a member of a cognizable racial group and that the prosecutor has used 
peremptory challenges to remove members of the defendant’s race from the jury 
venire. Id. The defendant must also show that these facts and any other relevant 

circumstances raise an inference that the prosecutor used the peremptory challenges 
to exclude jurors from the petit jury on account of their race. Id. These relevant 
circumstances include the pattern of strikes and the prosecutor’s questions and 
statements. Id. at 97. Once the defendant makes a prima facie showing, the burden 

then shifts to the prosecutor to offer a “race neutral explanation” for challenging the 
jurors. Id. The prosecutor’s explanation does not have to rise to the level which 
would justify the exercise of a challenge for cause, but a prosecutor may not rebut a 

defendant’s prima facie case of discrimination by simply stating that he challenged 
jurors of the defendant’s race on the assumption that they would be partial to the 
defendant because they were members of the same racial group. Id. The trial court 

must then determine whether the defendant carried his burden of proving purposeful 
discrimination. Id. at 98.                                                
    A “race neutral” explanation in the context of a Batson claim means “an 

explanation based on something else than the race of juror. At this step of the inquiry, 
the  issue  is  the  facial  validity  of  the  prosecutor’s  explanation.  Unless  a 
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered 
will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352, 360 (1991). A 

race neutral explanation that is offered by the prosecution need not be persuasive or 
plausible; instead, the persuasiveness or the justification becomes relevant only 
when the trial court determines whether the opponent of the challenge has carried 

his burden of proving purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767–
69 (1995).                                                                
    On habeas review of a state conviction, a Batson claim involves “a mixed 
question of law and fact and ‘necessarily focuses on the reasonableness of the 

decisions  of  the  state  courts—that  is,  whether  those  decisions  constituted  an 
unreasonable application of Supreme Court precedent.’” Braxton v. Gansheimer, 
561 F.3d 453, 458 (6th Cir. 2009) (quoting Lancaster v. Adams, 324 F.3d 423, 429 

(6th Cir. 2003)) (additional citation omitted). However, the question of whether a 
prosecutor intended to discriminate on the basis of race in challenging a potential 
juror is a question of historical fact. Lancaster, 324 F.3d at 429. “Under [the] 

AEDPA, primary or historical facts found by state courts are presumed correct and 
are rebuttable only by clear and convincing evidence.” Id. at 429 (internal citations 
and quotations omitted). Therefore, “while a district court’s ruling on a Batson claim 

presented on direct appeal is entitled to great deference and should not be disturbed 
unless it is clearly erroneous, ‘the standard must be modified in the context of a 
§ 2254 petition to give credence to § 2254(e)(1)’s requirement that facts found by a 
state court be presumed correct unless the petitioner rebuts this presumption by clear 

and convincing evidence.’” Braxton, 561 F.3d at 458 (quoting Lancaster, 324 F.3d 
at 429, n.1).                                                             
    The third step of the Batson inquiry requires the party who challenges the 

peremptory challenge to “demonstrate that the purported explanation is merely a 
pretext for a racial motivation.” McCurdy v. Montgomery County, 240 F.3d 512, 521 
(6th Cir. 2001) overruled on other grounds by Barnes v. Wright, 449 F.3d 709 (6th 
Cir. 2006). “Because the primary defense to pretext based violations of Batson is the 

[trial] court’s ability to assess the credibility of an attorney’s representations, it is 
critical that the [trial] court independently assess the proffered justifications.” Id. 
(citing Hernandez, 500 U.S. at 365). “In the typical peremptory challenge inquiry, 

the  decisive  question  will  be  whether  counsel’s  race-neutral  explanation  for  a 
peremptory challenge should be believed.” Miller–El v. Cockrell, 537 U.S. 322, 339 
(2003) (quoting Hernandez, 500 U.S. at 365). Then “the trial court must determine 

whether the defendant has carried his burden of proving purposeful discrimination.” 
Hernandez,  500  U.S.  at  359.  “[A]  state  court’s  finding  of  the  absence  of 
discriminatory  intent  is  a  ‘pure  issue  of  fact’  accorded  significant  deference.” 

Miller–El, 537 U.S. at 339.                                               
    In  the  present  case,  the  trial  judge  and  the  Michigan  Court  of  Appeals 
reasonably determined that the prosecutor had given valid race-neutral reasons for 
peremptorily challenging the Native American juror, Timothy Lince. Timothy Lince 

had identified himself as Native American and was peremptorily excused by the 
prosecution. (ECF No. 14-6, PgID 1076–78.) At a bench conference initiated upon 
the strike and in a record created after jury selection, the prosecutor explained that 

the notes from his staff on the jury questionnaire indicated Lince had a family history 
of distaste for police and prosecutors due to previous cases with individuals bearing 
that name. The staff member from the prosecutor’s office testified that while he did 
not know if Timothy Lince in particular was related to the family known to dislike 

police and prosecutors, the staff member did testify that Lince was an uncommon 
name in the area and that a relation was likely for that reason. The staff member also 
testified that he was unaware of Lince’s ethnicity when he made the notation on 

Lince’s questionnaire. (ECF No. 14-9, PgID. 1137, 1158–60.) Given these facts, the 
trial court credited the prosecution’s explanation for dismissing Lince based not on 
his ethnicity, but because he was likely related to a family known to dislike police 

and prosecutors. (Id. at PgID 1161.)                                      
    A prospective juror’s animosity or resentment towards law enforcement is a 
valid race-neutral reason under Batson for peremptorily challenging that juror. See 

United States v. Harris, 192 F.3d 580, 586–87 (6th Cir. 1999); see also Pirtle v. 
DeWitt, 31 F. App’x. 191, 192 (6th Cir. 2002). The trial judge reasonably concluded 
that the prosecutor offered a valid race-neutral reason for removing Mr. Lince from 
the jury. More importantly, the state trial judge credited the prosecutor’s credibility 

in determining that the reasons offered by the prosecutor for excusing the juror were 
race-neutral and not motivated by a discriminatory intent. “[A] state court’s finding 
of the absence of discriminatory intent is a ‘pure issue of fact’ accorded significant 

deference.” Miller–El, 537 U.S. at 339. Although “reasonable minds” who reviewed 
the record might disagree about the prosecutor’s credibility concerning his proffered 
reasons for excusing Mr. Lince, “on habeas review that does not suffice to supersede 
the trial court’s credibility determination.” Rice v. Collins, 546 U.S. 333, 341–42 

(2006). Because the state trial judge’s decision to credit the prosecutor’s race-neutral 
explanation for peremptorily striking Mr. Lince in response to petitioner’s Batson 
challenge was not an unreasonable determination of the facts in light of evidence 
presented in state court, petitioner is not entitled to habeas relief on his Batson claim. 
Id.                                                                       

     H. Claim # The systematic exclusion claim.                          
    Petitioner next contends that racial minorities are systematically excluded 
from jury service in Cheboygan County.                                    

    Although a defendant has no right to a petit jury composed in whole or in part 
of persons of his or her own race, he or she does have the right to be tried by a jury 
whose members are selected by indiscriminatory criteria. Powers v. Ohio, 499 U.S. 
400, 404 (1991) (internal citations omitted). While states may prescribe relevant 

qualifications for their jurors, members of a community may not be excluded from 
jury service on account of their race. Id.                                
    A  defendant,  however,  may  not  challenge  the  makeup  of  a  jury  merely 

because no members of his or her race are on a jury, but must prove that his or her 
race has been systematically excluded. Apodoca v. Oregon, 406 U.S. 404, 413 
(1972).  In  order  to  establish  a  prima  facie  violation  of  the  fair  cross-section 
requirement, a defendant must show:                                       

     (1) that the group alleged to have been excluded is a ‘distinctive’ 
     group in the community;                                             

     (2) that the representation of that group in venires from which juries 
     are selected is not fair and reasonable in relation to the number of such 
     persons in the community; and                                       
     (3) that the under-representation is due to the systematic exclusion of 
     the group in the jury selection process.                            

Duren v. Missouri, 439 U.S. 357, 364 (1979).                              

    “More than mere numbers must be provided to establish” that members of a 
particular ethnic or racial group are systematically under-represented in the jury 
venire. United States v. Greene, 971 F. Supp. 1117, 1128 (E.D. Mich. 1997). The 
strength of the evidence of under-representation of the group in the venire is only 
one factor to be considered in determining whether a prima facie violation of the fair 
cross-section requirement has been established. Factors such as the nature of the 
process  by  which  jury  lists  are  composed  and  the  length  of  time  of  under-
representation, together with the strength of the evidence that purports to establish 

unfair and unreasonable representation also need to be examined. Id. (citing Ford v. 
Seabold, 841 F.2d 677 (6th Cir. 1988)).                                   
    Petitioner has presented this Court with no evidence regarding the racial 
make-up of the jury venire in this case or of the jury that was empaneled, nor has he 

even presented any statistics regarding the racial and ethnic makeup of Cheboygan 
County or of the juries that sit in Cheboygan County. Petitioner’s claim is thus 
conclusory and unsupported. Compare Garcia-Dorantes v. Warren, 801 F.3d 584, 

591–93, 600–03 (6th Cir. 2015) (systematic exclusion of minority jurors established 
where several experts, including statisticians, provided hard numbers regarding 
racial composition in various areas of Kent County in 2001-2002).         
    Petitioner failed to show that Native Americans or other racial minorities were 
systematically excluded from jury service in Cheboygan County at the time of his 

trial.  Conclusory  assertions  of  underrepresentation  are  insufficient  to  support  a 
systematic exclusion claim. See United States v. McCaskill, 48 F. App’x. 961, 962 
(6th Cir. 2002). Petitioner’s failure to point to any evidence supporting a prima facie 

violation of the fair cross-section requirement defeats this claim. Id.    
     I.  Claims # 14 and 15. The sufficiency of evidence claims.         
    Petitioner next alleges that there was insufficient evidence to convict him of 
felony-firearm or harboring a fugitive.                                   

    It is beyond question that “the Due Process Clause protects the accused against 
conviction except upon proof beyond a reasonable doubt of every fact necessary to 
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 

(1970). But the critical inquiry on review of the sufficiency of the evidence to 
support a criminal conviction is, “whether the record evidence could reasonably 
support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 
307, 318 (1979). A court need not:                                        

    ask itself whether it believes that the evidence at the trial established 
    guilt  beyond  a  reasonable  doubt.  Instead,  the  relevant  question  is 
    whether, after viewing the evidence in the light most favorable to the 
    prosecution, any rational trier of fact could have found the essential 
    elements of the crime beyond a reasonable doubt.                     

Id. at 318–19 (internal citation and footnote omitted) (emphasis in the original).  
    A federal habeas court may not overturn a state court decision that rejects a 
sufficiency of the evidence claim merely because the federal court disagrees with 

the state court’s resolution of that claim. Instead, a federal court may grant habeas 
relief only if the state court decision was an objectively unreasonable application of 
the Jackson standard. Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because rational 

people can sometimes disagree, the inevitable consequence of this settled law is that 
judges will sometimes encounter convictions that they believe to be mistaken, but 
that they must nonetheless uphold.” Id. Indeed, for a federal habeas court reviewing 
a state court conviction, “the only question under Jackson is whether that finding 

was so insupportable as to fall below the threshold of bare rationality.” Coleman v. 
Johnson, 566 U.S. 650, 656 (2012). A state court’s determination that the evidence 
does not fall below that threshold is entitled to “considerable deference under [the] 

AEDPA.” Id.                                                               
    Petitioner first contends that there was insufficient evidence to sustain his 
felony-firearm conviction, because the prosecutor failed to prove that he used the 
firearm to manufacture or possess the marijuana.                          

    The elements of felony-firearm are that the defendant possessed a firearm 
while committing, or while attempting to commit, a felony offense. Renico, 506 F.3d 
at 448. Possession of firearm, and not the actual use of a firearm, is all that is required 

under the felony-firearm statute. “It is possession, not use, of a firearm during the 
commission of a felony that satisfies the requirements of the statute.” People v. 
Beard, 171 Mich. App. 538, 546 (1988). Moreover, “[t]he fact that the defendant did 

not possess a firearm at the time of arrest, or at the time of the police raid, is not 
relevant in the circumstances of this case.” People v. Burgenmeyer, 461 Mich. 431 
(2000).  Petitioner  possessed  various  firearms  while  he  was  manufacturing  and 

possessing marijuana.                                                     
    State courts are the “ultimate expositors of state law.” Mullaney v. Wilbur, 
421 U.S. 684, 691 (1975). What is essential to establish an element of a crime, like 
the question whether a given element is necessary, is a question of state law, of which 

federal habeas review is not available. Sanford, 288 F.3d at 862. Moreover, a federal 
court on habeas review must distinguish a sufficiency of evidence claim from state 
law  claims  which  are  disguised  as  Jackson  claims.  Id.  at  860  (citing  Bates  v. 

McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)). Thus, “when a habeas petition is 
predicated upon just one of several plausible interpretations of underlying state law, 
federal courts have declined to review state convictions on insufficiency-of-evidence 
grounds.” Jenkins v. Dailey, 348 F. App’x. 114, 119 (6th Cir. 2009). This Court must 

defer to the Michigan Court of Appeals’ construction of the elements of state crimes. 
See Coe v. Bell, 161 F.3d 320, 347 (6th Cir. 1998). The Michigan Court of Appeals 
has determined that possession of a firearm during the commission of a felony, and 
not the actual use of the firearm, is all that is required for a felony-firearm conviction. 
This Court must defer to that determination.                              

    Petitioner, in his fifteenth claim, alleges that there was insufficient evidence 
to convict him of harboring a fugitive because his sister was on medical furlough 
from the county jail when the police raided his home.                     

    The Michigan Court of Appeals on petitioner’s direct appeal ruled:   
    Finally, contrary to defendant’s assumption, the prosecution was not 
    required to prove Megan MacLeod’s intent to escape jail in order to  
    convict defendant for harboring a felon. For this, the prosecution had to 
    prove  only  that  defendant  knowingly  or  willingly  concealed  or 
    harbored Megan MacLeod, that the concealment or harboring was done   
    for the purpose of concealment from a peace officer, and that at the 
    time, Megan MacLeod was subject to a felony arrest warrant. We find  
    from our review of the record that the evidence presented on each of 
    these elements was sufficient to support the jury’s verdict.         

MacLeod, No. 326950, 2016 WL 3767496, at *12.                             

    As  with  petitioner’s  fourteenth  claim,  the  Michigan  Court  of  Appeals 
determined that under Michigan law the facts in this case established the elements 
of harboring a felon. This Court must defer to that determination. Petitioner is not 
entitled to relief on his fifteenth claim.                                
     J.  Claims # 13 and # 17. The prosecutorial misconduct claims.      
    Petitioner next contends he was denied a fair trial because of prosecutorial 
misconduct.                                                               
    “Claims of prosecutorial misconduct are reviewed deferentially on habeas 
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. 

Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will 
be held to violate a criminal defendant’s constitutional rights only if they “‘so 
infected the trial with unfairness as to make the resulting conviction a denial of due 

process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. 
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form 
the basis for habeas relief only if the conduct was so egregious as to render the entire 
trial fundamentally unfair based on the totality of the circumstances. Donnelly, 416 

U.S. at 643–45. To obtain habeas relief on a prosecutorial misconduct claim, a 
habeas petitioner must show that the state court’s rejection of his or her prosecutorial 
misconduct claim “was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility for fairminded 
disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Harrington, 
562 U.S. at 103).                                                         
    Petitioner first contends that the prosecutor abused his discretion in charging 

him with these various offenses.                                          
    Prosecutors  enjoy  considerable  discretion  in  determining  what  criminal 
charges to bring. United States v. Batchelder, 442 U.S. 114, 124 (1979). Prosecutors 

may be influenced by the penalties available on conviction in making a charging 
decision. This fact, in and of itself, does not give rise to a constitutional violation. 
Id. at 125.                                                               

    All of the charges in this case were supported by probable cause and proven 
beyond a reasonable doubt to a jury. Petitioner’s claim is without merit. 
    Petitioner next contends that the prosecutor presented perjured testimony. The 

deliberate deception of a court and jurors by the presentation of known and false 
evidence is incompatible with the rudimentary demands of justice. Giglio v. United 
States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the 
prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 

360 U.S. 264, 269 (1959) (internal citations omitted). To prevail on a claim that a 
conviction was obtained by evidence that the government knew or should have 
known to be false, a defendant must show that the statements were actually false, 

that the statements were material, and that the prosecutor knew they were false. Coe, 
161 F.3d at 343. However, a habeas petitioner must show that a witness’ statement 
was “indisputably false,” rather than misleading, to establish a claim of prosecutorial 
misconduct or a denial of due process based on the knowing use of false or perjured 

testimony. Byrd v. Collins, 209 F.3d 486, 517–18 (6th Cir. 2000).         
    Petitioner only points to inconsistencies between the various witnesses. Mere 
inconsistencies in a witness’ testimony do not establish the knowing use of false 

testimony by the prosecutor. Coe, 161 F.3d at 343. Additionally, the fact that a 
witness contradicts himself or herself or changes his or her story also does not 
establish perjury. Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003) 

(citing Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). Conclusory 
allegations of perjury in a habeas corpus petition must be corroborated by some 
factual  evidence. Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971). 

Petitioner presented no evidence to establish that any of the witnesses deliberately 
lied, hence, he is not entitled to relief on this claim.                  
    Petitioner next contends that the prosecutor failed to use due diligence in 
attempting  to  produce  res  gestae  witnesses.  This  Court  already  ruled  that  the 

prosecutor’s  failure  to  call  these  witnesses  did  not  violate  petitioner’s  right  to 
confrontation. Petitioner is not entitled to relief on this claim.        
    Petitioner  next  contends  that  the  prosecutor  committed  misconduct  by 

referring to four uncharged deliveries, in violation of M.R.E. 404(b).    
    Although F.R.E. 404(b) and its state counterpart M.R.E. 404(b) generally 
prohibit a prosecutor from questioning a defendant about prior bad acts, the United 
States  Supreme  Court  has  never  held  that  the  federal  constitution  forbids  a 

prosecutor from so doing, thus the rejection of petitioner’s prosecutorial misconduct 
claim by the Michigan courts does not entitle petitioner to habeas relief. See Wagner 
v. Klee, 620 F. App’x. 375, 378 (6th Cir. 2015). Petitioner is not entitled to relief on 

his thirteenth and seventeenth claims.                                    
     K. Claims # 21 and 23. The evidentiary law claims.                  
    Petitioner next raises challenges to the admission of evidence under state law. 

    It is “not the province of a federal habeas court to reexamine state-court 
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 
(1991). A federal court is limited in habeas review to deciding whether a state court 

conviction violated the Constitution, laws, or treaties of the United States. Id. Thus, 
errors in the application of state law, especially rulings regarding the admissibility 
of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 
224 F.3d 542, 552 (6th Cir. 2000) (internal citation omitted).            

    Petitioner, in his twenty-first claim, alleges that the trial court violated M.R.E. 
404(b)  by  admitting  audiotapes  of  the  controlled  buys  because  they  presented 
allegedly  improper  character  evidence  involving  petitioner’s  uncharged  drug 

deliveries.                                                               
    Petitioner’s claim that the state court violated M.R.E. 404(b) or any other 
provision of state law by admitting improper character evidence or evidence of prior 
bad acts is non-cognizable on habeas review. See Bey v. Bagley, 500 F.3d 514, 519 

(6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did not 
permit Court to reverse state court conviction based on their belief that the state trial 
judge erred in ruling that prior injury evidence was admissible as bad acts evidence 

under California law); Dowling v. United States 493 U.S. 342, 352–53 (1990) 
(admission at defendant’s bank robbery trial of “similar acts” evidence that he had 
subsequently been involved in a house burglary for which he had been acquitted did 

not violate due process). The admission of this “prior bad acts” or “other acts” 
evidence against petitioner at his state trial does not entitle him to habeas relief, 
because there is no clearly established Supreme Court law which holds that a state 

violates a habeas petitioner’s due process rights by admitting propensity evidence in 
the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th 
Cir. 2003).                                                               
    Petitioner next contends that the officers offered improper opinion testimony 

concerning the content of the audiotapes. The trial court at least implicitly concluded 
that the officers’ testimony was permissible lay opinion under state evidentiary law. 
This Court sitting on federal habeas review may not conclude otherwise, thus, 

petitioner is not entitled to habeas relief on his claim that the officers’ testimony was 
impermissible lay opinion testimony. See Charles v. Thaler, 629 F.3d 494, 500 (5th 
Cir. 2011). Petitioner is not entitled to habeas relief on his twenty-first and twenty-
third claims.                                                             

     L. Claim # 25. The jury instruction claim.                          
    Petitioner claims that the judge gave the jurors an erroneous instruction on the 
offense of felony-firearm.                                                
    An erroneous jury instruction warrants habeas corpus relief only where the 
instruction “‘so infected the entire trial that the resulting conviction violates due 

process.’” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 
(1973)). “[I]t must be established not merely that the instruction is undesirable, 
erroneous,  or  even  ‘universally  condemned,’  but  that  it  violated  some 

[constitutional] right.” Donnelly, 416 U.S. at 643. The jury instruction “‘may not be 
judged  in  artificial  isolation,’  but  must  be  considered  in  the  context  of  the 
instructions as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp, 
414 U.S. at 147). The court must “inquire ‘whether there is a reasonable likelihood 

that the jury has applied the challenged instruction in a way’ that violates the 
Constitution.” Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).   
    The judge here gave the jurors the model Michigan jury instruction on the 

elements of felony-firearm. (ECF No. 14-11, PgID 1550–51.) When petitioner raised 
this claim in his post-conviction motion, the trial and appellate courts rejected the 
claim, implicitly finding that the instruction was an accurate reflection of Michigan 
law on the elements of felony-firearm.                                    

    Because the state courts found that the instruction given by the trial court 
accurately reflected Michigan law, this Court must defer to that determination and 
cannot question it. Seymour v. Walker, 224 F.3d at 558. Petitioner is not entitled to 

relief on his instructional error claim.                                  
     M.  Claim # 26. The entrapment claim.                               
    Petitioner next contends that he is entitled to habeas relief because he was 

entrapped by law enforcement into committing these offenses.              
    It is well-established that entrapment is not a constitutional defense. See 
Hampton v. United States, 425 U.S. 484, 488–91 (1976) (plurality opinion); Russell, 

411 U.S. at 430; Sosa, 389 F.3d at 648. Because entrapment is not a constitutional 
defense, it cannot form the basis for habeas relief.  Sosa, 389 F.3d at 647–48; 
Rodriguez, 625 F. Supp. 2d at 566; see also Lothridge v. United States, 441 F.2d 
919, 922 (6th Cir. 1971) (issue of entrapment could not be raised on collateral attack 

in a motion to vacate judgment and sentence brought pursuant to 28 U.S.C. § 2255 
because  no  issue  of  constitutional  dimensions  was  presented).  Accordingly, 
petitioner’s claim that the state court’s denial of his entrapment defense was clearly 

erroneous under Michigan law is not cognizable in a federal habeas corpus petition. 
Seeger v. Straub, 29 F. Supp. 2d 385, 390–91 (E.D. Mich. 1998).           
     N. Claim # 27. The transcript claim.                                
    Petitioner next claims that the trial transcripts are inaccurate, because the court 

reporter failed to transcribe the audiotaped recordings of the controlled buys, which 
instead were admitted as prosecution exhibits. But neither state law nor federal law, 
certainly not federal constitutional law, required the court reporter to do so. See 

People v. Perry, 115 Mich. App. 533, 537 (Mich. Ct. App. 1982); United States v. 
Vazquez Guadalupe, 407 F.3d 492, 496–98 (1st Cir. 2005). Petitioner is not entitled 
to relief on his twenty-seventh claim.                                    

     O. Claim # 28. The ineffective assistance of appellate counsel claim. 
    Petitioner finally argues that appellate counsel was ineffective for failing to 
raise his eighth through twenty-seventh claims on his appeal of right.    

    The Sixth Amendment guarantees a defendant the right to effective assistance 
of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396–97 (1985). 
However, court appointed counsel does not have a constitutional duty to raise every 
non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 

(1983). A habeas court must defer twice: first to appellate counsel’s decision not to 
raise an issue and secondly, to the state court’s determination that appellate counsel 
was not ineffective. Woods v. Etherton, 136 S. Ct. 1149, 1153 (2016) (per curiam) 

(“Given AEDPA, both Etherton’s appellate counsel and the state habeas court were 
to be afforded the benefit of the doubt.”).                               
    Petitioner’s eighth through twenty-seventh claims are meritless. “Appellate 
counsel cannot be found to be ineffective for ‘failure to raise an issue that lacks 

merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. 
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Petitioner is not entitled to relief on his 
claim.                                                                    
    The Court denies the petition for writ of habeas corpus. The Court also denies 
petitioner  a  certificate  of  appealability.  In  order  to  obtain  a  certificate  of 

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

petition should have been resolved in a different manner, or that the issues presented 
were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 
U.S.  473,  483–84  (2000).  When  a  district  court  rejects  a  habeas  petitioner’s 
constitutional claims on the merits, the petitioner must demonstrate that reasonable 

jurists would find the district court’s assessment of the constitutional claims to be 
debatable or wrong. Id. at 484. “The district court must issue or deny a certificate of 
appealability when it enters a final order adverse to the applicant.” Rules Governing 

§ 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.                         
    For  the  reasons  stated  in  this  opinion,  the  Court  will  deny  petitioner  a 
certificate of appealability because reasonable jurists would not find this Court’s 
assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219 F. 

Supp. 2d 871, 885 (E.D. Mich. 2002). Petitioner is denied leave to appeal in forma 
pauperis, because the appeal would be frivolous. See Fed. R. App. P. 24(a).  
IV. CONCLUSION                                                            

     Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ 
of habeas corpus. The Court further DENIES a certificate of appealability and leave 
to appeal in forma pauperis.                                              
IT IS SO ORDERED.                                                         

Dated: September 3, 2020            s/Paul D. Borman                       
                                   Paul D. Borman                         
                                   United States District Court Judge