Shaver 405867 v. Hoffner

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

SCOTTIE BERNARD SHAVER,

Petitioner, Case No. 1:17-cv-809

v. Honorable Robert J. Jonker

BONITA HOFFNER,

Respondent.
____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Petitioner Scottie Bernard Shaver is incarcerated with the Michigan Department of Corrections at
the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. On June 9,
2011, following an almost five-week jury trial in the Van Buren County Circuit Court, Petitioner
was convicted of first-degree murder, in violation of Mich. Comp. Laws § 750.316. On July 11,
2011, the trial court sentenced Petitioner to life imprisonment without the possibility of parole.
On September 5, 2017, Petitioner filed his initial habeas corpus petition, raising eight
grounds for relief. (§ 2254 Pet., ECF No. 1, PageID.20.) In an order (ECF No. 2) entered on
September 25, 2017, the Court directed Respondent to file a response and the state court record
within 180 days. Respondent did so on March 23, 2018. (ECF Nos. 5, 6.)
Subsequently, on April 10, 2020, counsel appeared on behalf of Petitioner and filed a
motion to dismiss Petitioner’s unexhausted claims, stay proceedings on the exhausted claims, and
allow Petitioner to return to state court to exhaust his non-exhausted claims before proceeding on
his § 2254 petition. (ECF No. 12.) In an order (ECF No. 15) entered on February 16, 2021, the
Court granted Petitioner’s motion, dismissed his unexhausted claims without prejudice, stayed his
exhausted grounds, and administratively closed this matter until Petitioner filed a timely motion
to amend his habeas petition to include any subsequently exhausted claims.
On September 22, 2023, Petitioner, through counsel, returned to this Court with a motion

to lift the stay and for an extension of time to file his amended § 2254 petition. (ECF No. 18.) In
an order (ECF No. 20) entered on February 7, 2024, the Court granted that motion. Petitioner filed
his amended petition (ECF No. 21) on April 8, 2024. In his amended petition, Petitioner asserts
the following eight grounds for relief:
I. Petitioner Shaver is entitled to habeas relief where there was insufficient
evidence proven by the prosecutor beyond a reasonable doubt that he had
the intent to commit first degree, or felony murder.
II. Petitioner is entitled to a new trial where the state prosecutor knowingly
allowed false and perjured testimony to gain an unconstitutional conviction.
US Const. amend. XIV.
III. Petitioner was the victim of a Brady violation where material evidence
crucial to his guilt or punishment was withheld depriving him of his rights
to a fair trial requiring habeas relief. US Const. amend. XIV.
IV. Petitioner was denied his constitutional right to confront and cross-examine
a crucial witness against him regarding the cause of death which was
changed from accident to homicide requiring relief. US Const. amend. VI.
V. Petitioner was denied his Sixth Amendment right to the effective assistance
of counsel on his appeal of right requiring habeas relief. US Const. amends.
VI and XIV.
VI. Petitioner is entitled to a new trial where his trial attorney was
constitutionally defective by failing to investigate the case, failing to utilize
the compulsory process to obtain witnesses for the defense, and failed to
move for an expert accident reconstructionist requiring relief. US Const.
amend[s]. VI and XIV.
VII. Petitioner is entitled to a new trial where new evidence which was
unavailable for his jury trial establish[es] his actual innocence of murder
requiring reversal or release from custody. US Const. amend. XIV.
VIII. Petitioner is entitled to a new trial where the state trial judge abused his
judicial discretion by circumventing a Sixth Amendment right to confront a
specific witness displaying judicial bias against him. US Const. amends. VI
and XIV.
(Am. § 2254 Pet., ECF No. 21, PageID.5870–5871.) Respondent asserts that Petitioner’s grounds
for relief lack merit.1 (ECF No. 26.) For the following reasons, the Court concludes that Petitioner
has failed to set forth a meritorious federal ground for habeas relief and will, therefore, deny his
petition for writ of habeas corpus.
Discussion
I. Factual Allegations
The Michigan Court of Appeals described the events underlying Petitioner’s conviction as
follows:
Defendants’ convictions stem from the death of Deborah Boothby, hereafter the
victim. Police responded to a call and discovered the victim’s body on the Blue Star
Highway at about 2:30 a.m. on April 26, 1998. The victim was almost on the center
line of the roadway and there was a large amount of blood around her head. The
victim’s jacket was ripped and it appeared that she had been hit by a vehicle. The
victim was still alive, and was rushed to the South Haven emergency room.
However, the victim died during transport. Police assumed the victim’s death was
the result of a hit and run accident. After no significant progress was made, the case
was eventually closed. The case was re-opened in September 2007 by the Michigan
State Police. In the course of the new investigation of the victim’s death, Adrienne
Burnette admitted to her involvement in the murder and cooperated with police,

1 Respondent also contends that several of Petitioner’s grounds for relief are procedurally
defaulted. (ECF No. 26, PageID.5958–5959.) Respondent does recognize, however, that a habeas
corpus petition “may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(2). Furthermore,
the Supreme Court has held that federal courts are not required to address a procedural default
issue before deciding against the petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518, 525
(1997) (“Judicial economy might counsel giving the [other] question priority, for example, if it
were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.”); see also Overton v. Macauley, 822 F. App’x 341, 345 (6th Cir.
2020) (“Although procedural default often appears as a preliminary question, we may decide the
merits first.”); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir. 2003) (citing Lambrix, 520 U.S.
at 525; Nobles v. Johnson, 127 F.3d 409, 423–24 (5th Cir. 1997); 28 U.S.C. § 2254(b)(2)). Here,
rather than conduct a lengthy inquiry into procedural default, judicial economy favors proceeding
directly to a discussion of the merits of Petitioner’s claims.
leading them to Ivory, [Petitioner], and Shevolier. Another break for police came
in 2009, when Adrian Travier, an inmate who was incarcerated with Ivory, wrote a
letter to the prosecutor indicating that Ivory confessed to the murder and stated that
[Petitioner], Shevolier, and Ed Foster were involved.
Testimony at trial established that on April 25, 1998, the victim went to the Blue
Star Lounge. The victim and Ivory had an on and off romantic relationship. Ivory
was at the Blue Star Lounge that night with Shevolier. Witnesses described an
argument between the victim, Ivory, and Shevolier, and testified that the victim
threw her drink at Ivory and/or Shevolier. After the altercation between the victim,
Ivory, and Shevolier, the lights came on at the lounge and everyone was asked to
leave. Witnesses testified that the parking lot was crowded after the lounge was
closed early, and a crowd of people formed around the victim, who was being hit,
kicked, and stomped on. Witnesses specifically identified Ivory, [Petitioner], and
Shevolier as among the people who were beating the victim. After the victim was
apparently unconscious, several witnesses testified to observing Ivory and
[Petitioner] lift the victim up and place her in the backseat of Shevolier’s car.3
Witnesses testified that Shevolier was in the driver’s seat, and that Ivory got into
the front passenger seat and Ed Foster got into the backseat with the victim.
Burnette testified to observing all the above-stated events, and then testified that as
she was waiting in a line of cars to leave the lounge [Petitioner] got into the front
passenger seat of her car and told her to follow Shevolier’s car. Burnette, who knew
[Petitioner] and was previously romantically involved with him, complied with his
command and turned left toward Covert. She followed Shevolier’s car into a park
about a mile away from the lounge. The two cars drove through the park until they
reached a turnaround area near an old pump house. At that point, [Petitioner] got
out of Burnette’s car and Ivory, Shevolier, and Ed got out of Shevolier’s car. The
victim was pulled out of the car and dragged to a grassy area. The victim was
conscious again and was screaming for help and begging defendants to stop.
Burnette testified that Shevolier choked the victim while the men continued to beat
her. Eventually, the victim stopped moving. Shevolier asked if the victim was dead,
and Ivory stated that they were going to take her back to the lounge, dump her on
the side of the road, and run her over with the car so it would appear that the victim
was killed in a hit and run accident.
Ivory, Ed, and Shevolier got back into Shevolier’s car, and the victim was placed
back in the backseat. Burnette testified that she was “numb,” and scared of what
would happen to her. [Petitioner] got back into Burnette’s car and told her to follow
Shevolier’s car, which Ivory was now driving. Burnette testified that she followed
Shevolier’s car back toward the Blue Star Lounge, and that [Petitioner] explained
to her that their plan was to run the victim over and make her death look like an
accident. Burnette testified that Shevolier’s car drove just north of the lounge, and
that Ivory and Ed got out of Shevolier’s car and placed the victim behind it. She
testified that they put the car in reverse and ran over the victim and then rolled
forward back over her. Ivory was the driver. [Petitioner] told Burnette to drive up
to the Blue Star Lounge parking lot where he sold drugs to Keith Owens, a bouncer
at the lounge. After the drug transaction, [Petitioner] told Burnette that she was
“going to leave this bar, you’re going to run that bitch over and make sure she’s
dead this time.” Burnette testified that she told [Petitioner] she did not want to run
the victim over, and [Petitioner] said “you’re going to run her over or else I’m going
to pull you out and you’re going to end up like her.” So Burnette “did what [she]
was told.” The victim was still on the ground at this time, toward the side of the
road with her upper body in the lane of traffic and her head toward the center line.
Burnette testified that she was driving 25 or 30 miles per hour when she ran over
the victim. After running over the victim she went back to her house with
[Petitioner], who spent the night.
Burnette testified at defendants’ trial pursuant to a plea agreement. Burnette
pleaded guilty to second-degree murder and perjury. Pursuant to the deal, she
agreed to provide truthful testimony at each and every court proceeding regarding
the victim’s murder. The plea deal also included a sentence agreement stating that
Burnette would be sentenced to eight to 20 years’ imprisonment for each count, and
that the sentences would run concurrently. The entire agreement was admitted as
evidence and read into the record during trial.
__________________________
3 Some witnesses testified that Ed Foster was one of the people who placed the
victim in Shevolier’s car.
People v. Shaver, Nos. 305944, 305945, 306288, 2013 WL 4864204, at *1–2 & n.3 (Mich. Ct.
App. Sept. 12, 2013).2
Petitioner’s first trial, conducted in September and October of 2010, ended in a mistrial.
(ECF No. 6-28, PageID.4994.) Jury selection for Petitioner’s retrial occurred over the course of
five days, from May 10, 2011, until May 17, 2011. (See Trial Trs. I through V, ECF Nos. 33-1
through 33-5.) Over the course of almost five weeks, the jury heard testimony from numerous
witnesses. (Trial Trs. VI through XIX, ECF Nos. 33-6 through 33-19.) On June 9, 2011, following
almost a full day of deliberation, the jury returned a guilty verdict. (Trial Tr. XXI, ECF No. 33-21,
PageID.10746.) Petitioner appeared before the trial court for sentencing on July 11, 2011. (ECF
No. 33-22.)

2 The Michigan Court of Appeals considered Petitioner’s appeal along with the appeals filed by
co-defendants Ivory Lee Shaver and Shevolier Jovon Gill.
Petitioner, with the assistance of counsel, appealed his conviction and sentence to the
Michigan Court of Appeals. In his counseled brief, Petitioner argued that the State had presented
insufficient evidence to support his convictions and that the trial court erred by denying his motion
for a separate trial. (ECF No. 6-29, PageID.5060.) Petitioner raised the following additional issues

in a pro per supplemental brief: (1) the trial court erred by denying Petitioner’s request for a
mistrial based upon unfairness in the jury selection process; (2) the trial court knowingly allowed
the prosecution to present false testimony and coerced witnesses; (3) the jury’s verdict was not
supported by sufficient evidence; and (4) the magistrate bound Petitioner over to the circuit court
without the presence of probable cause. (Id., PageID.5159–5164.) On September 12, 2013, the
Michigan Court of Appeals rejected Petitioner’s arguments and affirmed his conviction and
sentence. See Shaver, 2013 WL 4864204, at *21. The Michigan Supreme Court denied Petitioner’s
application for leave to appeal on February 28, 2014. See People v. Shaver, 843 N.W.2d 517 (Mich.
2014).
Thereafter, Petitioner filed a § 2254 petition in this Court. See Shaver v. McKee, No. 1:14-

cv-877, 2014 WL 5019905, at *1 (W.D. Mich. Oct. 7, 2014). On October 7, 2014, this Court
dismissed that petition without prejudice for Petitioner’s failure to exhaust his available state-court
remedies. See id.
On March 9, 2015, Petitioner returned to the trial court and filed a motion for relief from
judgment pursuant to Michigan Court Rule 6.502. (ECF No. 6-31, PageID.5380.) However, in an
order entered on March 13, 2015, the trial court ordered that Petitioner’s motion be returned to
him because “it d[id] not substantially comply with the requirements of subchapter 6.500 of the
Michigan Court Rules.” (Id.)
On March 26, 2015, Petitioner filed a new motion for relief from judgment pursuant to
Rule 6.502, raising 14 separate grounds for relief. (ECF No. 6-32.) On October 9, 2015, the trial
court received from Petitioner a motion for leave to amend his Rule 6.502 motion. (ECF No. 6-
36.) The trial court granted Petitioner leave to amend in an order entered on October 8, 2015. (ECF

No. 6-37.) In an order entered on December 4, 2015, the trial court denied Petitioner’s Rule 6.502
motion. (ECF No. 6-38.) The trial court subsequently denied Petitioner’s motion for
reconsideration. (ECF Nos. 6-39, 6-40.) The Michigan Court of Appeals and Michigan Supreme
Court denied Petitioner’s applications for leave to appeal on September 22, 2016, and July 25,
2017, respectively. (ECF No. 6-41, PageID.5600, ECF No. 6-42, PageID.5752.)
As noted supra, Petitioner filed his initial § 2254 petition in this Court on September 5,
2017. (ECF No. 1.) After Respondent filed the state court record and a response, counsel appeared
for Petitioner and filed a motion to dismiss the unexhausted claims and stay proceedings on the
exhausted claims so that Petitioner could return to state court and exhaust the unexhausted claims.
(ECF No. 12.) The Court granted that motion in an order (ECF No. 15) entered on February 16,

2021. The Court also administratively closed this matter until Petitioner filed a timely motion to
amend his habeas petition to include any subsequently exhausted claims.
Petitioner, through counsel, subsequently returned to the state court and filed a second
motion for relief from judgment pursuant to Rule 6.502 on March 17, 2021. (ECF No. 27-2.) In an
order entered on October 13, 2021, the trial court denied Petitioner’s motion. (ECF No. 27-6.) The
Michigan Court of Appeals and Michigan Supreme Court denied Petitioner’s applications for leave
to appeal on August 25, 2022, and May 2, 2023, respectively. (ECF No. 27-7, PageID.6180, ECF
No. 27-8, PageID.6414.) Petitioner’s amended § 2254 petition followed.
II. Request for an Evidentiary Hearing
In his amended § 2254 petition, Petitioner requests that the Court hold an evidentiary
hearing. (Am. § 2254 Pet., ECF No. 21, PageID.5929.) Generally, habeas corpus actions are
determined on the basis of the record made in the state court. See Rule 8, Rules Governing § 2254
Cases. The presentation of new evidence at an evidentiary hearing in the district court is not

mandatory unless one of the circumstances listed in 28 U.S.C. § 2254(e)(2) is present. See Sanders
v. Freeman, 221 F.3d 846, 852 (6th Cir. 2000). The Sixth Circuit Court of Appeals recently
reviewed the requirements of the statute:
As the Supreme Court recently recognized, [the Antiterrorism and Effective Death
Penalty Act] “restricts the ability of a federal habeas court to develop and consider
new evidence.” Shoop [v. Twyford], 142 S. Ct. [2037,] 2043 [(2022)]. Specifically,
the statute allows the development of new evidence in “two quite limited
situations”: (1) when the claim relies on a “new” and “previously unavailable” “rule
of constitutional law” made retroactive by the Supreme Court, or (2) when the claim
relies on a “factual predicate that could not have been previously discovered
through the exercise of due diligence.” Id. at 2044 (quoting 28 U.S.C. § 2254(e)(2)).
And even if a prisoner can satisfy either of those exceptions, to obtain an
evidentiary hearing, he still must show by “clear and convincing evidence” that “no
reasonable factfinder” would have convicted him of the crime charged. Shinn [v.
Ramirez], 142 S. Ct. [1718,] 1734 [(2022)] (quoting 28 U.S.C. § 2245(e)(2)(A)(i),
(ii)). Mammone does not purport to satisfy any of these stringent requirements for
obtaining discovery or an evidentiary hearing: he does not rely on a new rule of
constitutional law, he does not contend that the factual predicate for his
constitutional claims could not have been previously discovered, and he points to
no clear and convincing evidence that would cast doubt on the jury’s verdict.
Mammone v. Jenkins, 49 F.4th 1026, 1058–59 (6th Cir. 2022).
Petitioner, like Mammone, does not rely upon any new rule of constitutional law, nor does
his claim rely on a factual predicate that could not have been previously discovered through the
exercise of due diligence. Moreover, even if Petitioner cleared those hurdles, he does not show by
any evidence, much less clear and convincing evidence, that no reasonable factfinder would have
convicted him. Under these circumstances, there is no basis to hold an evidentiary hearing.
Accordingly, Petitioner’s request for a hearing will be denied.3
III. AEDPA Standard
The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions
are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685,

693–94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the evidence presented in the
state court proceeding.
28 U.S.C. § 2254(d). “Under these rules, [a] state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of
the state court’s decision.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal
quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This standard

3 To the extent that Petitioner contends that the trial court erred by not holding an evidentiary
hearing, such a claim is not cognizable on federal habeas review. See Simpson v. Jones, 238 F.3d
399, 406–07 (6th Cir. 2000) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Smith v.
Phillips, 455 U.S. 209, 221 (1982)). In addition, “the Sixth Circuit has consistently held that errors
in post-conviction proceedings are outside the scope of federal habeas corpus review.” Cress v.
Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby v. Dutton, 794 F.2d 245, 246–47 (6th Cir.
1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002)). “[T]he traditional function of the writ is
to secure release from illegal custody,” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), but a due
process claim with respect to post-conviction proceedings, even if resolved in Petitioner’s favor,
would not impact Petitioner’s custody. In reviewing such a claim, the Court “would not be
reviewing any matter directly pertaining to” that custody. Cress, 484 F.3d at 853 (quoting Kirby,
794 F.2d at 247). If this Court were to conclude that the trial court erred in denying Petitioner an
evidentiary hearing, Petitioner would not automatically be released from custody or be granted a
new trial.
is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation
marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court.
28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not

consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000);
Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court announced after the last adjudication of the
merits in state court. Greene v. Fisher, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to
an examination of the legal landscape as it would have appeared to the Michigan state courts in
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller
v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable

facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a
habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575
U.S. at 316 (quoting Harrington, 562 U.S. at 103).
Determining whether a rule application was unreasonable depends on the rule’s specificity.
Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in
their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal
quotation marks omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is

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

required under clearly established federal law or that the state court’s factual determination was
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the
underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576
U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).
If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s
claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example,
if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d
at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d
433, 436 (6th Cir. 2003)).
IV. Discussion
A. Ground I—Sufficiency of the Evidence
As his first ground for relief, Petitioner avers that there was insufficient evidence to prove
beyond a reasonable doubt that “he had the intent to commit first degree, felony murder.” (Am.
§ 2254 Pet., ECF No. 21, PageID.5870.) According to Petitioner, there was no evidence that he
“intended to kill Ms. Boothby by plan or scheme with a premeditated intent.” (Id., PageID.5891.)

Petitioner raised his sufficiency claim on direct appeal, and the court of appeals rejected it,
first applying the following standard for reviewing Petitioner’s claim:
We review de novo challenges to the sufficiency of the evidence. People v.
McGhee, 268 Mich. App. 600, 622; 709 N.W.2d 595 (2005). The evidence is
viewed in a light most favorable to the prosecution to determine whether a rational
jury could find that each element of the crime was proved beyond a reasonable
doubt. People v. Ericksen, 288 Mich. App. 192, 195–196; 793 N.W.2d 120 (2010).
Shaver, 2013 WL 4864204, at *8. Although the court of appeals cited state authority, the standard
applied is identical to the constitutional “sufficiency of the evidence” standard set forth in Jackson
v. Virginia, 443 U.S. 307 (1979), which requires the court to determine “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. at 319.
The state court’s application of the correct standard eliminates the possibility that the
resulting decision is “contrary to” clearly established federal law. As the Supreme Court stated in
Williams v. Taylor:
The word “contrary” is commonly understood to mean “diametrically different,”
“opposite in character or nature,” or “mutually opposed.” Webster’s Third New
International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests
that the state court’s decision must be substantially different from the relevant
precedent of this Court. The Fourth Circuit’s interpretation of the “contrary to”
clause accurately reflects this textual meaning. A state-court decision will certainly
be contrary to our clearly established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.
Williams v. Taylor, 529 U.S. at 405. The Court went on to offer, as an example of something that
is not “contrary to” clearly established federal law, the following:
[A] run-of-the-mill state-court decision applying the correct legal rule from our
cases to the facts of a prisoner’s case would not fit comfortably within
§ 2254(d)(1)’s “contrary to” clause. Assume, for example, that a state-court
decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland
[v. Washington, 466 U.S. 668 (1984),] as the controlling legal authority and,
applying that framework, rejects the prisoner’s claim. Quite clearly, the state-court
decision would be in accord with our decision in Strickland as to the legal
prerequisites for establishing an ineffective-assistance claim, even assuming the
federal court considering the prisoner’s habeas application might reach a different
result applying the Strickland framework itself. It is difficult, however, to describe
such a run-of-the-mill state-court decision as “diametrically different” from,
“opposite in character or nature” from, or “mutually opposed” to Strickland, our
clearly established precedent. Although the state-court decision may be contrary to
the federal court’s conception of how Strickland ought to be applied in that
particular case, the decision is not “mutually opposed” to Strickland itself.
Id. at 406. Therefore, because the Michigan Court of Appeals applied the correct standard—here
Jackson rather than Strickland—Petitioner can only overcome the deference afforded state court
decisions if the determination of regarding Petitioner’s sufficiency of the evidence challenge is an
unreasonable application of Jackson or if the state court’s resolution was based on an unreasonable
determination of the facts. 28 U.S.C. 2254(d).
The Jackson standard “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Witness credibility remains the province
of the jury, see Herrera v. Collins, 506 U.S. 390, 401–02 (1993), and an attack on witness
credibility constitutes a challenge to the quality, but not the sufficiency of the government’s
evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). The habeas court need only
examine the evidence supporting the conviction, in the light most favorable to the prosecution,
with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S.
at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196–97 (6th Cir. 1988).
Moreover, because both the Jackson standard and AEDPA apply to Petitioner’s claims,
“the law commands deference at two levels in this case: First, deference should be given to the
trier-of-fact’s verdict, as contemplated by Jackson; second, deference should be given to the
Michigan Court of Appeals’ consideration of the trier-of-fact’s verdict, as dictated by AEDPA.”

Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). This standard erects “a nearly insurmountable
hurdle” for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Davis, 658
F.3d at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Here, the court of appeals followed Jackson’s command. The court of appeals first noted
that Petitioner was “convicted of first-degree murder supported by two theories: premeditation and
felony murder.” Shaver, 2013 WL 4864204, at *8. The court of appeals then set forth the elements
the prosecution must prove to establish both first-degree premeditated murder and first-degree
felony murder, as well as what must be proven to convict a defendant under an aiding and abetting
theory. See id. at *8–9. After doing so, the court of appeals considered the evidence in a light that
favored the prosecution:

In this case, the evidence demonstrated that [Petitioner] was more than merely
present, and that he forcibly moved the victim with the purpose of kidnapping or
murder. Several witnesses testified that [Petitioner] actively participated in the
beating of the victim in the parking lot of the Blue Star Lounge, and that he assisted
Ivory in picking the victim up and placing her in Shevolier’s car. Burnette testified
that [Petitioner] ordered her to follow Shevolier’s car. The jury could have inferred
from this testimony that [Petitioner] placed the victim in Shevolier’s car for the
purpose of kidnapping her or moving her to a more remote location in order to kill
her. Moreover, this evidence shows that [Petitioner] was not merely present, but
rather, was actively participating in beating and moving the victim. Further,
Burnette testified that once they arrived at the park, [Petitioner] continued to beat
the victim, and that after the victim appeared to be unconscious, [Petitioner] got
back into Burnette’s car and ordered her to run the victim’s body over to ensure the
victim was dead. This evidence also demonstrates [Petitioner’s] intent and active
participation in the victim’s murder.
We also reject [Petitioner’s] argument that Burnette’s testimony was untrustworthy
and should not have been believed. It is the responsibility of the finder of fact to
make decisions about the credibility of witnesses and the probative value of
evidence. People v. Wolfe, 440 Mich. 508, 514–515; 489 N.W.2d 748 (1992),
amended 441 Mich. 1201 (1992); People v. Harrison, 283 Mich. App. 374, 378;
768 N.W.2d 98 (2009). Moreover, we must “draw all reasonable inferences and
make credibility choices in support of the jury verdict.” People v. Nowack, 462
Mich. 392, 400; 614 NW2d 78 (2000). Thus, [Petitioner’s] argument regarding the
credibility of Burnette’s testimony has no merit. Accordingly, when the evidence
is viewed in the light most favorable to the prosecution, there was sufficient
evidence to support [Petitioner’s] conviction beyond a reasonable doubt.
Shaver, 2013 WL 4864204, at *9–10.
In his amended § 2254 petition, Petitioner now suggests that the court of appeals ‘failed to
fully address the claim . . . because [it] relied on perjured testimony of Adrianne Burnette to decide
this claim.” (Am. § 2254 Pet., ECF No. 21, PageID.5892.) Petitioner contends that Burnette “failed
a polygraph examination, and her version of the events changed to add that Petitioner forced her
to drive over the victim’s body to make sure she was dead.” (Id.) Petitioner argues that the “only
link that [he] was involved in the alleged homicide . . . came from Adrianne Burnette, who changed
her testimony several times.” (Id., PageID.5893.) He contends that “the only testimony linking
Petitioner to the death or Ms. Boothby came from several perjurers.” (Id.)
Petitioner’s argument essentially boils down to the claim that it cannot be inferred that he
aided and abetted his co-defendants in killing Boothby because the evidence suggesting that he
did was perjured testimony. The state court of appeals concluded otherwise. To prevail, Petitioner
must show that the inferences urged by the appellate court are unreasonable.
Jackson holds that it is the factfinder’s province to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319. In Coleman v. Johnson, 566 U.S. 650 (2012), the
Supreme Court provided guidance “in determining what distinguishes a reasoned inference from
‘mere speculation.’” Id. at 655. The Coleman Court described a reasonable inference as an
inference that a rational factfinder could make from the facts. See id. at 654–55. The inferences
need not be compelled by those facts; the inferences may not even be more likely than not; they
are simply rational. Id. at 656. Nothing more is required.
Petitioner has not demonstrated that the court of appeals’ inference that he acted in concert
with his co-defendants and shared their intent to commit the offense is irrational. Certainly, as

Petitioner argues, it is possible that one could interpret Petitioner’s actions differently and reach
the opposite conclusions; but that does not render the court of appeals’ inferences irrational. Thus,
Petitioner has failed to meet his burden.
It is also worth noting that Petitioner’s argument specifically challenges the credibility of
the prosecution’s witnesses—particularly Burnette—and suggests that none of them provided
credible testimony because they perjured themselves. Petitioner, therefore, essentially invites this
Court to reweigh the credibility of these witnesses and resolve all conflicts and make all inferences
in his favor. However, it is up to the jury to decide issues of credibility, to decide between
conflicting accounts, and draw inferences—so long as the inferences are rational. See Herrera,
506 U.S. at 401–02; Martin, 280 F.3d at 618. Petitioner’s invitation turns the Jackson standard on

its head.
Petitioner has failed to demonstrate that the court of appeals’ determination that there was
sufficient evidence to support the verdict is contrary to, or an unreasonable application of, clearly
established federal law. Petitioner, therefore, is not entitled to relief on habeas ground I.
B. Grounds II and III—Prosecutorial Misconduct
In ground II, Petitioner alleges that the prosecutor committed misconduct by knowingly
using “false and perjured testimony to gain an unconstitutional conviction.” (Am. § 2254 Pet., ECF
No. 21, PageID.5870.) In ground III, Petitioner faults the prosecution for committing a violation
of Brady v. Maryland, 373 U.S. 83 (1963). (Id.)
For a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the
petitioner must demonstrate that the prosecutor’s improper conduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[T]he

touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). In evaluating the impact of the
prosecutor’s misconduct, a court should consider the extent to which the claimed misconduct
tended to mislead the jury or prejudice the petitioner. See United States v. Young, 470 U.S. 1, 11–
12 (1985). The Supreme Court has described the Darden standard as “a very general one, leaving
courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’” Parker v.
Matthews, 567 U.S. 37, 48 (2012). The Parker Court rejected an attempt to graft any additional
requirements on the “very general” Darden standard.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487,

512 (6th Cir. 2003)). Indeed, “[t]he Supreme Court has clearly indicated that the state courts have
substantial breathing room when considering prosecutorial misconduct claims because
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle
v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. at, 645). Thus, in order
to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the
state court’s rejection of his prosecutorial misconduct claim “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker, 567 U.S. at 47 (internal quotation marks omitted).
1. Ground II—Presentation of False and Perjured Testimony
In his second ground for relief, Petitioner contends that the prosecution presented perjured
testimony from inmate-informant Adrian Traveir, as well as false testimony from witnesses
Sharlimar Thomas and Latonya Thurman. (Am. § 2254 Pet., ECF No. 21, PageID.5896–5897.)
According to Petitioner, both Thomas and Thurman testified that they were intimidated by the

State Trooper questioning them and so they just answered “yes” to his questions. (Id.) Petitioner
argues further that this false testimony “was not enough, so the prosecution injected false
testimonial evidence from Adrianne Burnette.” (Id., PageID.5897.) Petitioner contends that
Burnette was convicted of committing perjury and “agreed that her statements to Detective
Oppenheimer were modified on October 19, 2009[,] about her knowledge of the alleged crimes
committed on April 25, 1998.” (Id.) Petitioner believes that this false testimony was used “for two
distinct purposes[:] (1) [t]o have the original autopsy report changed from accident hit and run, to
murder, and (2) [i]t was used by the prosecution to secure an unconstitutional conviction.” (Id.,
PageID.5899.)
The Fourteenth Amendment’s right to due process prohibits a state from knowingly and

deliberately using perjured evidence to obtain a conviction. See Napue v. Illinois, 360 U.S. 264,
260 (1959). The Supreme Court repeatedly has recognized that “deliberate deception of a court
and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands
of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294
U.S. 103, 112 (1935)). Presentation of perjured testimony, without more, however, does not rise
to the level of a constitutional violation. See Briscoe v. LaHue, 460 U.S. 325, 327 (1983). Rather,
[t]he knowing use of false or perjured testimony constitutes a denial of due process
if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury. In order to establish prosecutorial misconduct or denial of due
process, the defendants must show (1) the statement was actually false; (2) the
statement was material; and (3) the prosecution knew it was false. The burden is on
the defendants to show that the testimony was actually perjured, and mere
inconsistencies in testimony by government witnesses do not establish knowing use
of false testimony.
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989) (citations omitted).
Petitioner raised this claim in his pro per supplemental brief on direct appeal, and the
Michigan Court of Appeals rejected it, writing:
Next, [Petitioner] raises an apparent prosecutorial misconduct claim because he
alleges that the prosecution intentionally introduced perjury when it called Burnette
to testify. This issue was not raised during trial and is accordingly reviewed for
plain error affecting [Petitioner’s] substantial rights. Carines, 460 Mich. at 752–
753. We conclude that the record does not support [Petitioner’s] claim. The record
contains no evidence to support [Petitioner’s] claim that the prosecution admitted
known perjury or that any witnesses testified to events of which they had no
personal knowledge, and [Petitioner] does not cite the record to support his
argument. Moreover, questions regarding the truthfulness of witnesses are
questions for the finder of fact. Wolfe, 440 Mich. at 514–515. Thus, because
[Petitioner] simply fails to support his claim in any way, and because there is
nothing in the record to suggest any prosecutorial misconduct, we conclude that
[Petitioner] is not entitled to any relief.
Shaver, 2013 WL 4864204, at *21. Petitioner raised this claim again in his first Rule 6.502 motion,
and the trial court rejected it, noting that the court of appeals had ruled against Petitioner and that
Petitioner had not established “any retroactive change in the law which has undermined the Court
of Appeals decision regarding the testimony of Ms. Burnette.” (ECF No. 6-38, PageID.5567.)
In his amended § 2254 petition, Petitioner essentially reiterates the arguments that he raised
in—and that were rejected by—both the court of appeals and the trial court. In his reply, Petitioner
mentions that Burnette “had flunked her polygraph test and it was only after she flunked her test
that Detective Sgt. Diane Oppenheim and she came up with the theory that Petitioner forced her
to run over the victim twice with a 3000 pound vehicle.” (ECF No. 30, PageID.6601.) Petitioner
also mentions that Dr. Palutke falsely testified “that it was Dr. Millard who changed the death
certificate from vehicle accident to homicide.” (Id.)
Despite Petitioner’s arguments, Petitioner fails to provide any evidence, much less clear
and convincing evidence, to overcome the court of appeals’ conclusion that the prosecutor was not
aware of any falsities in any witnesses’ testimony and presented them as witnesses regardless. The
Court’s review of the trial record indicates that there were inconsistencies between the testimony

given by Burnette and testimony given by other witnesses. Moreover, Petitioner attached to his
second Rule 6.502 motion an affidavit from his post-conviction investigator Thomas Bereza
indicating that even though Dr. Millard’s signature was on both death certificates, Dr. Millard
never examined Boothby’s body and was never consulted by anyone regarding Boothby’s death.
(ECF No. 27-2, PageID.6101–6102.)
However, as the Sixth Circuit has noted, “mere inconsistencies in testimony by government
witnesses do not establish knowing use of false testimony,” and it is Petitioner’s burden to show
that the prosecution knew any such testimony was false. See Lochmondy, 890 F.2d at 822. Simply
put, Petitioner provides no definitive evidence to demonstrate that the inconsistencies between the
testimony given by Burnette and the testimony given by other witnesses equate to a conclusion

that the prosecutor was aware that several witnesses were testifying falsely. Likewise, despite
Bereza’s assertion that Dr. Millard never examined Boothby’s body and was never consulted by
anyone regarding Boothby’s death, Bereza’s affidavit also notes that Dr. Millard never testified in
court, that all of Dr. Millard’ records had been destroyed, and that Dr. Millard refused to sign an
affidavit regarding the case or the two death certificates. (ECF No. 27-2, PageID.6102.) Nothing
in Bereza’s affidavit leads to a conclusion that the prosecutor was aware of any false testimony
given by Dr. Palutke regarding Dr. Millard’s involvement, if any, in changing the death certificate.
Instead, Petitioner relies on his speculations and the inconsistencies in the testimony to support his
arguments. That is insufficient for Petitioner to meet his burden on federal habeas review.
For the foregoing reasons, Petitioner has failed to demonstrate that the court of appeals’
rejection of this claim is contrary to, or an unreasonable application of, clearly established federal
law. Petitioner, therefore, is not entitled to relief with respect to ground II.
2. Ground III—Alleged Brady Violation
In ground III, Petitioner contends that the government violated Brady “where the decade

old cause of death was changed from accident to murder without the prosecution proving who
changed it,” and [where the prosecution] withheld the person and evidence that caused an accident
to become a homicide.” (Am. § 2254 Pet., ECF No. 21, PageID.5902.) In support of his claim,
Petitioner claims that Dr. Patluke testified that Dr. Millard was the individual who changed the
manner of death to a homicide. (Id., PageID.5903.) Petitioner argues that the “death certificates
and changed cause of death report [were] never provided to the defense.” (Id.) He also suggests
that there is no record of the existence of the amended death certificate or the changed cause of
death report anywhere in the trial court record. (Id.) Petitioner contends that the state courts “all
passed on this claim thus there was no decision on the merit[s].” (Id., PageID.5904.)
In Brady, the Supreme Court held that “suppression by the prosecution of evidence

favorable to an accused . . . violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S.
at 87. There are three components to finding a Brady violation: “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Prejudice (and materiality) is
established by a showing that “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Id. at 280
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); see also Cone v. Bell, 556 U.S. 449,
469–70 (2009). A reasonable probability equates to a “probability sufficient to undermine
confidence in the outcome.” Bagley, 473 U.S. at 682.
Respondent contends that ground III “is procedurally defaulted because [Petitioner] never
presented this claim to the state courts and cannot go back and do so now, rendering his claim

inexhaustible.” (ECF No. 26, PageID.6015.) This Court agrees with Respondent. The state court
record reflects that while Petitioner did assert a Brady claim in his first Rule 6.502 motion, that
Brady claim concerned the withholding of allegedly exculpatory material pertaining to prosecution
witness Burnette and her credibility. (ECF No. 6-32, PageID.5406.) Moreover, while Petitioner’s
second Rule 6.502 motion concerned evidence regarding the death certificates, nowhere in that
motion did Petitioner assert a Brady violation. Petitioner’s Brady claim is, therefore, unexhausted.
Nevertheless, “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.” See 28 U.S.C. § 2254(b)(2).
Petitioner’s Brady claim is wholly without merit. First, as an initial matter, the record does

not reflect that the amended death certificate was withheld during the defense. Instead, the record
reflects that during Petitioner’s first trial (that ultimately ended in a mistrial), Dr. Palutke was
shown a copy of the amended death certificate and identified it as such. (ECF No. 6-18,
PageID.3691–3692.) Dr. Palutke extensively testified regarding the amended death certificate and
cause of death report at Petitioner’s retrial. (See generally Trial Tr. XIV, ECF No. 33-14.)
Moreover, Petitioner has not—and cannot—demonstrate that the amended death certificate
and cause of death report were exculpatory. As noted above, Boothby’s death was initially ruled
as an accidental hit and run but was subsequently changed to a homicide. Petitioner fails to explain,
and the Court fails to discern, how that change was favorable to the defense. Certainly, if
Boothby’s death had initially been ruled a homicide and was later changed to be an accidental hit
and run, that would be exculpatory and favorable, but that is not what occurred here.
Finally, Petitioner fails to demonstrate a reasonable probability that this evidence would
have altered the outcome of his trial. See Strickler, 527 U.S. at 280 (quoting Bagley, 473 U.S.

at 682). Numerous witnesses testified on behalf of the prosecution that they observed Petitioner
and his co-defendants beating Boothby. Moreover, Burnette testified that she was instructed by
Petitioner to run Boothby over with her vehicle. By convicting Petitioner (and his co-defendants),
the jury clearly found these witnesses to be credible. Regardless of what the death certificate
initially said and what it was amended to say, the jury was free to rely upon that testimony to
establish Petitioner’s guilt.
For the foregoing reasons, Petitioner has not demonstrated that a Brady violation occurred
in the way he suggests. Petitioner, therefore, is not entitled to relief with respect to ground III.
C. Ground IV—Confrontation Clause Violation
In ground IV, Petitioner contends that he was denied his Sixth Amendment right to “to
confront and cross-examine a crucial witness against him regarding the cause of death which was

changed from accident to homicide.” (Am. § 2254 Pet., ECF No. 21, PageID.5907.) In support of
his assertion, Petitioner avers that “it was Dr. Millard who changed the autopsy report to read
homicide.” (Id., PageID.5908.) Petitioner argues that Dr. Millard “did not testify at either the first
or second trial and the only indication he was the Doctor who changed the autopsy report and death
certificates came from Dr. Palutke.” (Id.) Petitioner argues that the “changed medical reports were
testimonial in nature.” (Id.) Petitioner asserts that the “only opportunity to test the change in the
cause of death[] was by way of confrontation—cross[-]examination—of the Medical Examiner
[Dr. Millard] who actually changed the cause of death.” (Id., PageID.5909.) He goes on to state
that his right to confrontation was “crucial because it was the autopsy and medical reports which
provided the evidence of a homicide, as opposed to hit-and-run accident.” (Id.)
The Confrontation Clause of the Sixth Amendment gives the accused the right “to be
confronted with the witnesses against him.” U.S. Const. amend VI; Pointer v. Texas, 380 U.S. 400,

403–05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). “The
central concern of the Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding
before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause,
therefore, prohibits the admission of an out-of-court testimonial statement at a criminal trial unless
the witness is unavailable to testify and the defendant had a prior opportunity for cross-
examination. See Crawford v. Washington, 541 U.S. 36, 59 (2004).
Not every out-of-court statement at trial, however, implicates the Confrontation Clause. As
the Supreme Court stated in Crawford:
The text of the Confrontation Clause . . . applies to “witnesses” against the
accused—in other words, those who “bear testimony.” 2 N. Webster, An American
Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a]
solemn declaration or affirmation made for the purpose of establishing or proving
some fact.” Ibid. An accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not. The constitutional text, like the history underlying the
common-law right of confrontation, thus reflects an especially acute concern with
a specific type of out-of-court statement.
Id. at 51. The Crawford Court had no need to decide whether the Confrontation Clause applies to
nontestimonial statements, though the Court suggested, in dicta, that the clause does not apply to
such statements. Subsequently, the Supreme Court considered the question left open in Crawford
and explicitly decided that the Confrontation Clause applies only to testimonial hearsay. See Davis
v. Washington, 547 U.S. 813, 823–24 (2006).
Dr. Palutke testified that he was the pathologist that performed Boothby’s autopsy. (Trial
Tr. XIV, ECF No. 33-14, PageID.9426.) Initially, he labeled Boothby’s manner of death “to be
undetermined” because he “did not have sufficient background information . . . to seriously
consider homicide, accident or suicide.” (Id., PageID.9467.) Dr. Palutke testified further that the

medical examiner’s office later amended the death certificate to reflect homicide as the cause of
death, and that he later changed his opinion with regard to the manner of death after learning more
information “about the circumstances surrounding Miss Boothby’s death.” (Id., PageID.9467–
9468.)
The prohibition set forth in Crawford applies “in full to forensic evidence.” See Smith v.
Arizona, 602 U.S. 779, 783 (2024). Accordingly, “a prosecutor cannot introduce an absent
laboratory analyst’s testimonial out-of-court statements to prove the results of forensic testimony.”
See id. (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009)). With respect to
medical reports, the Melendez-Diaz Court noted in a footnote that “medical reports created for
treatment purposes” are not testimonial for purposes of the Confrontation Clause. See Melendez-

Diaz, 557 U.S. at 312 n.2. Here, Respondent contends that the death certificate was not testimonial
because it “is an administrative or ministerial document,” rather than one prepared for and
reflecting a medical examiner’s opinion on the cause and manner of death for potential
prosecution.” (ECF No. 26, PageID.6029.)
Respondent, however, cites no authority in support of her assertion that the amended death
certificate was not testimonial. Notably, other courts have held the opposite—that death
certificates are testimonial for Confrontation Clause purposes. See, e.g., Corraspe v. People,
No. 2019-0054, 2024 WL 2969022, at *23 (Sup. Ct. V.I. Apr. 30, 2024); United States v. Williams,
740 F. Supp. 2d 4, 8–9 (D.D.C. 2010). Here, the Court need not conclusively determine whether
the amended death certificate and autopsy report were testimonial in nature because the record
demonstrates that any violation of Petitioner’s Confrontation Clause rights that may have occurred
was harmless error and, therefore, did not prejudice Petitioner’s defense.
Confrontation Clause violations are subject to review for harmless error. See Bailey v.

Morrison, No. 23-1254, 2023 WL 7877830, at *3 (6th Cir. Aug. 11, 2023) (citing Reiner v. Woods,
955 F.3d 549, 555 (6th Cir. 2020)). The impact of an error on the outcome of the proceedings is
also the focus of federal harmless error analysis. See, e.g., Brecht v. Abrahamson, 507 U.S. 619,
623 (1993) (adopting as the standard for determining whether habeas relief is appropriate “whether
the . . . error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”);
O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (posing the question as “Do I, the judge, think that
the error substantially influenced the jury’s decision?”); Brown v. Davenport, 596 U.S. 118, 126
(2022) (stating that “a state prisoner . . . must show that the error had a ‘substantial and injurious
effect or influence’ on the outcome of his trial” (quoting Brecht, 507 U.S. at 637)).
The Sixth Circuit has noted that when evaluating whether a Confrontation Clause error is

harmless, the court should consider:
“the importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, . . . and, of course,
the overall strength of the prosecution’s case.”
Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)).
Upon consideration of the record and the factors set forth above, the Court cannot agree
with Petitioner that he was prejudiced in any way by the lack of testimony by Dr. Millard at trial
regarding the amended death certificate and autopsy report. Even if Dr. Millard was the one who
amended those documents to reflect homicide as the cause of death, Dr. Palutke was the pathologist
who conducted the autopsy, and Petitioner received ample opportunity to cross-examine him
regarding his findings and conclusions. Moreover, contrary to Petitioner’s argument, the amended
documents were not the only evidence that Boothby’s death was a homicide. Although Petitioner
argues that Adrienne Burnette and several other witnesses were not credible, the jury chose to

believe those witnesses and their testimony about how they observed Petitioner and his-
codefendants beating Boothby, as well as Burnette’s testimony that she ran over Boothby twice at
Petitioner’s direction. In light of that overwhelming evidence of Petitioner’s guilt, any testimony
by Dr. Millard regarding amendment of the death certificate and autopsy report would not have
changed the outcome of trial. Accordingly, Petitioner is not entitled to relief with respect to habeas
ground IV.
D. Grounds V and VI—Ineffective Assistance of Trial and Appellate Counsel
In his fifth ground for relief, Petitioner avers that appellate counsel rendered ineffective
assistance. (Am. § 2254 Pet., ECF No. 21, PageID.5871.) Specifically, Petitioner faults appellate
counsel for failing to “challenge the change in the cause of death, failing to challenge the absent
Dr. Millard at either trial, or failing to challenge the Brady violation under current case law.” (Id.,

PageID.5914.) In ground VI, Petitioner contends that trial counsel was ineffective by: (1) failing
to investigate the case; (2) failing to “utilize the compulsory process to obtain witnesses for the
defense”; and (3) failing to “move for an expert accident reconstructionist.” (Id., PageID.5871.)
1. Standard of Review
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a
two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a
claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance
fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance
prejudiced the [Petitioner] resulting in an unreliable or fundamentally unfair outcome. Id. at 687.
A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The [Petitioner] bears the burden of overcoming the presumption that the challenged action might
be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see

also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic
decisions were hard to attack). The court must determine whether, in light of the circumstances as
they existed at the time of counsel’s actions, “the identified acts or omissions were outside the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court
determines that counsel’s performance was outside that range, the [Petitioner] is not entitled to
relief if counsel’s error had no effect on the judgment. Id. at 691.
The Strickland standard that applies to trial counsel also applies to appellate counsel.
However, a criminal appellant has no constitutional right to have every non-frivolous issue raised
on appeal. Rather, “‘winnowing out weaker arguments on appeal and focusing on’ those more
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,
751–52 (1983)). To require appellate counsel to raise every possible colorable issue “would
interfere with the constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions.” Strickland, 466 U.S. at 688. As the Supreme
Court has observed, it is difficult to demonstrate that an appellate attorney has violated the
performance prong where the attorney presents one argument on appeal rather than another. Smith
v. Robbins, 528 U.S. 259, 289 (2000). In such cases, the petitioner must demonstrate that the issue
not presented “was clearly stronger than issues that counsel did present.” Id.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is
“doubly” deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 15 (2013); Cullen, 563 U.S. at 190; Premo v.

Moore, 562 U.S. 115, 122 (2011). Scrutiny of counsel’s performance is “highly deferential”, per
Strickland, to avoid the temptation to second guess a strategy after-the-fact and to “eliminate the
distorting effects of hindsight.” Strickland, 466 U.S. at 689. Furthermore, scrutiny of the state
court’s scrutiny of counsel’s performance must also be deferential, per 28 U.S.C. § 2254(d). In
light of that double deference, the question before the habeas court is “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk,
687 F.3d 723, 740–41 (6th Cir. 2012) (stating that the “Supreme Court has recently again
underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA
. . . .” (citing Harrington, 562 U.S. at 102)).
Petitioner raised his ineffective assistance claims in his Rule 6.502 motion, and the trial

court considered them under the following standard:
In proving ineffective assistance of counsel, a defendant must overcome the
presumption that the challenged action or inaction was a matter of strategy. People
v. Leonard, 224 Mich. App. 569, 592; 569 N.W.2d 663 (1997). “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the [proceeding]
cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686; 104 S. Ct. 2052 (1984). “Reasonably effective assistance” is the
standard. Id. “A convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment.” Id. at 690.
(ECF No. 6-38, PageID.5569.) Clearly, there is no question that the trial court applied the correct
standard. This eliminates the possibility that the resulting decision is “contrary to” clearly
established federal law. Therefore, because the court applied the correct standard, Petitioner can
only overcome the deference afforded state court decisions if the determinations regarding
ineffective assistance of counsel are unreasonable applications of Strickland or if the resolutions
were based on unreasonable determinations of the facts. See 28 U.S.C. § 2254(d).
2. Ground VI—Ineffective Assistance of Trial Counsel
a. Failure to Investigate
Petitioner first faults trial counsel for failing “to conduct a reasonable investigation into the

ten-year-old case.” (Am. § 2254 Pet., ECF No. 21, PageID.5916.) Specifically, Petitioner faults
counsel for not investigating that the autopsy and death certificate had been changed without
“exhuming the body for verification of new information.” (Id.) Petitioner argues further that
counsel did not challenge Dr. Palutke’s testimony and instead “simply took” it as “facts supporting
the change in the cause of death.” (Id., PageID.5916–5917.) According to Petitioner, counsel
should have taken steps to inform the jury that the cause of death was changed due to Burnette’s
testimony, and that Burnette could not be believed. (Id., PageID.5917.) Petitioner also mentions
that counsel “failed to investigate the credibility of Adrian Traver who testified falsely regarding
a statement allegedly made by codefendant Ivory Sha[v]er.” (Id.)

The trial court rejected these arguments in its order denying Petitioner’s first Rule 6.502
motion, stating:
The record reflects trial counsel did investigate Ms. Burnette’s testimony. Counsel
used the readily available evidence to impeach her credibility by questioning her
extensively about her investigative subpoena testimony that was the basis for her
perjury conviction. TT Vol. 12, pgs. 82–170. This cross-examination included an
admission from Burnette that she lied under oath. TT Vol. 12, Pg. 157. Defense
counsel called witness Angela Goodwin to testify that when Burnette had made
previous statements regarding the incident, she never implicated [Petitioner] in the
death. TT Vol. 17, pgs. 106, 109–112.
* * *
As to Dr. Palutke, the record reflects defense counsel did cross examine him on his
change of opinion from accidental death to homicide. TT Vol. 14, pgs. 62–67, 72,
77–78. Furthermore, defense counsel engaged the services of an expert forensic
pathologist, Dr. Brian Hunter, who testified at trial on [Petitioner’s] behalf and
advanced the same theory of hit-and-run [Petitioner] asserts today. TT Vol. 17, pgs.
4–38, 83–89.
* * *
As to Adrian Travier’s testimony, the trial court ruled the testimony was admissible
after hearing arguments from the parties on the Prosecutor’s Motion in Limine to
introduce this evidence and a co-defendant’s Motion to Preclude it. The court noted
at the hearing on these motions that defense counsel filed a written response to the
prosecution’s motion. Evidentiary Hearing Transcript, May 2, 2011, pg. 170, In 5–
7. Defense counsel concurred with co-defense counsel’s extensive arguments on
this issue, and he vigorously argued against the motion. Id. pg. 209–214. As such,
defense counsel did object to this evidence, and was not ineffective as [Petitioner]
suggests. Furthermore, the Court of Appeals affirmed the trial court’s decision to
allow the evidence, which suggests any further defense counsel efforts to exclude
the evidence would have been futile.
(ECF No. 6-38, PageID.5570–5572.)
The trial court’s factual determinations are entirely consistent with the record, and
Petitioner offers no evidence, much less clear and convincing evidence, to overcome the
presumption of correctness afforded to those determinations. As noted supra, defense counsel
thoroughly cross-examined Dr. Palutke regarding the autopsy and the change of cause of death
from accidental to homicide. Counsel thoroughly cross-examined Burnette, focusing on the fact
that she lied during administrative subpoena proceedings. Counsel also cross-examined Travier.
Petitioner fails to explain, and the Court fails to discern, how any further investigation by counsel
regarding these issues would have changed the outcome of his trial. Petitioner, therefore, is not
entitled to relief with respect to this assertion of ineffective assistance of counsel.
b. Failure to Call Witnesses
Next, Petitioner faults counsel for not calling certain witnesses at trial. Petitioner first avers
that Glover Dandridge, Evita Rivera, and Latisha Hollings should have been called to testify
because they testified at Petitioner’s first trial. (Am. § 2254 Pet., ECF No. 21, PageID.5917–5918.)
According to Petitioner, Dandridge, the bar owner, would have countered Burnette’s testimony
“that [Dandridge] came to the door with his shotgun and claimed that if the fight didn’t stop he
would start shooting.” (Id., PageID.5917.) Petitioner claims that Ms. Hollings would have testified
that she pushed Boothby off of her car before leaving and “stated that she had probably run over

Ms. Boothby, for which forensic tests proved her car hit Boothby.” (Id.) Petitioner believes that
Ms. Hollings “could have dispelled the prosecution’s theory that Petitioner and his codefendants
beat Ms. Boothby and put her in the car.” (Id., PageID. 5917–5918.) Finally, Petitioner argues that
Ms. Rivera would have testified that she did not know Ms. Burnette and was not at the bar with
Burnette that evening. (Id., PageID.5918.)
The trial court thoroughly addressed Petitioner’s arguments in its order denying his first
Rule 6.502 motion, stating:
As to the witnesses Glover Dandridge, Evita Rivera, and LaTisha Hollings who
were not called, the court finds the decision not to call them to be a matter of trial
strategy. As well, none of the witnesses’ testimony would have been outcome
determinative. The court notes that there is inherent risk in calling any witness, and
counsel must engage in a risk benefit analysis of each potential witness. Here, the
prosecution properly highlights the many risks associated with these witnesses, and
the minimal benefit in their proposed testimony. Furthermore, [Petitioner’s]
portrayal of their testimony at the first trial is not complete, and omits testimony
that would have been damaging to him had they been called at the second trial.
[Petitioner] avers Mr. Dandridge testified there was no fight in the parking lot.
However, Mr. Dandridge testified that there was a commotion in the parking lot
and a group of 20 to 25 people on the north side of the parking lot, but that he could
not see into the crowd. He also testified about the establishment’s liquor license,
and the importance of the liability attached to it. He testified it was important to get
everyone off of the premises when the commotion started in the bar. He testified he
knew the disturbance in the bar involved people fighting, pushing, and shoving, and
knew about the commotion in the parking lot. However, he stated [he] never saw
any of those involved in either incident nor did he see any actual punches thrown.
He also stated he couldn’t remember if [Petitioner], Ivory Shaver, Shevy Gill or
Edward Foster were even at the bar that night. 2010 TT Vol. 7, 41–126.
[Petitioner] avers Ms. Hollings testified that the victim was laying on her car after
the altercation, and that she offered the victim a ride home that was rebuffed. While
this is true, she only testified to this after being asked a leading question on cross-
examination. On direct examination she did not mention that she had any contact
with the victim in the parking lot. She also testified that during the investigation
she was extensively questioned about whether or not she may have hit the victim.
She also testified as to having a poor memory of the evening, as she repeatedly
answered “I don’t remember” to specific questions about the night. She also
testified that when she went outside, she saw a big crowd in the parking lot and saw
[Petitioner], Ivory, and Shevy fighting and hitting the victim with fists in the center
of the crowd. She testified she saw the victim fall to the ground more than once in
the crowd. She was also asked about telling an officer the day after the incident that
she didn’t see any fight. 2010 TT Vol. 9, 164–199.
Ms. Holling[s’] testimony conflicts with [Petitioner’s] portrayal of Mr. Dandridge’s
testimony. She clearly testified that there was a fight in the parking lot involving
[Petitioner], Ivory, and Shevy fighting and hitting the victim. Mr. Dandridge didn’t
say there was “no fight” in the parking lot; he testified there was a commotion and
a group of 20–25 people in the parking lot. His testimony is consistent with Ms.
Holling[s’] testimony, as he would not have been able to see into the middle of the
crowd. He also testified he was watching the people due to liability concerns, which
is consistent with the several witnesses who testified that there was a fight in the
parking lot.
Contrary to [Petitioner’s] assertions, both Ms. Holling[s] and Mr. Dandridge had
motive to portray themselves in a positive light. Testimony that Mr. Dandridge
watched the crowd break up and leave with no reason to call the police, and that
Ms. Holling[s] offered the victim a ride home after she was pushed off of her car,
would insulate them from seeming indifferent to the violence that night. As well, it
is clear they would have given testimony that would be damaging to [Petitioner].
Both would have generally corroborated Ms. Burnette’s version of events, and Ms.
Holling[s] would have confirmed that [Petitioner] was in the middle of the crowd
fighting with the victim.
Ms. Rivera testified that she was wasted when the bar cleared and doesn’t
remember the night with clarity. She testified that she didn’t know or recognize any
of the Defendants. Her impeachment of Ms. Burnette was equivocal at best, as she
testified that it was inaccurate but possible that she and Ms. Burnette went to the
bar together that evening. She also corroborates that there was a big crowd in the
parking lot. 2010 TT, Vol. 14, 26–47.
While her testimony provides some impeachment value, it is clear that she would
also confirm that there was a crowd in the parking lot in direct contradiction to
[Petitioner’s] contention that there was no fight in the parking lot. Again, she also
has a motive to avoid looking indifferent to the violence that night.
(ECF No. 6-38, PageID.5570–5571.)
Again, Petitioner offers no evidence, much less clear and convincing evidence, to
overcome the presumption of correctness afforded to the state courts’ factual determinations. Even
if Dandridge would have testified that he never came to the door with a shotgun and threatened to
start shooting if the fight did not stop, Petitioner fails to explain, and the Court fails to discern,

how that testimony would have altered the outcome of his trial in light of the overwhelming
evidence against him. Likewise, as set forth by the trial court, Hollings and Rivera would have
provided unfavorable testimony that a fight did occur at the bar that night, and given Rivera’s state
of intoxication, any impeachment of Burnette’s testimony by her would have been equivocal at
best. Notably, Petitioner provides no evidence that these three individuals were even available to
testify at his retrial, and he offers nothing but his own assertions to support a conclusion that a
failure to present their testimony resulted in prejudice to his defense. See Tinsley v. Million, 399
F.3d 796, 810 (6th Cir. 2005) (affirming denial of an ineffective assistance claim based on
counsel’s failure to call witnesses where a petitioner did not “introduce [ ] affidavits or any other
evidence establishing what they would have said”); United States v. Ashimi, 932 F.2d 643, 650

(7th Cir. 1991) (“[T]he testimony of a putative witness must generally be presented in the form of
actual testimony by the witness or on affidavit; [a] defendant cannot simply state that the testimony
would have been favorable, [as] self-serving speculation will not sustain an ineffective assistance
claim.” (footnote omitted)).
Petitioner also contends that counsel should have called Dr. Millard “to tell the jury why
he changed the cause of death from accident to homicide.” (Am. § 2254 Pet., ECF No. 21,
PageID.5918.) The trial court rejected this argument, stating:
In his amendment, [Petitioner] also alleges defense counsel should have called Dr.
M[i]llard to testify why he changed his findings from accidental to homicide.
However, the record shows that it was Dr. Palutke who changed his opinion from
accidental death to homicide as discussed above. It is unclear who Dr. M[i]llard is
and how he is connected to this case from [Petitioner’s] amendment and the record.
As such, [Petitioner’s] argument as to Dr. M[i]llard is without merit.
(ECF No. 6-38, PageID.5572.) This Court has already determined that Petitioner was not
prejudiced by the lack of testimony from Dr. Millard at trial. Petitioner, therefore, cannot maintain
his claim that counsel was ineffective for failing to call Dr. Millard as a witness.
In sum, Petitioner fails to demonstrate that he was prejudiced by counsel’s decision not to
call the identified individuals as witnesses as his second trial. Petitioner, therefore, is not entitled
to relief with respect to this assertion of ineffective assistance.
c. Failure to Seek Expert Accident Reconstructionist
Finally, Petitioner contends that counsel was ineffective for not requesting funds to hire an
expert accident reconstructionist. (Am. § 2254 Pet., ECF No. 21, PageID.5918.) According to

Petitioner, such an expert would have provided information “supporting the theory that it was an
accident as the Covert Police Chief, Mr. Winans[,] had written in his report that[] the crime scene
was very dark as it was raining very hard with low visibility.” (Id., PageID.5918–5919.) Petitioner
contends expert testimony would have “called into question the testimony of Burnette driving the
white car in the rain and hit the victim.” (Id., PageID.5919.)
The trial court touched upon this assertion in its order denying Petitioner’s first Rule 6.502
motion, stating:
[Petitioner] presents a letter and affidavits from expert accident reconstructionist
specialist Thomas Bereza. Mr. Bereza interviewed [Petitioner] and his trial counsel
and reviewed the case and investigative materials he received from them. It is
unclear whether he reviewed the transcripts of either trial and it appears he did not
interview witnesses. From what he did review, he opines that the death was not a
murder but rather a hit and run accident for which [Petitioner] is not responsible. . . .
* * *
[Petitioner] fails to explain how the evidence itself was newly discovered. As the
prosecution illustrates, Mr. Bereza reviewed materials he obtained from trial
defense counsel to form his opinion. Nothing in the letters or affidavits suggests
that the renewed materials were unknown to [Petitioner] prior to trial. In fact, it
appears that they were known to [Petitioner] prior to trial. It cannot be said,
therefore, that they are “newly discovered.”
He also fails to explain how he could not, using reasonable diligence, have
discovered and produced the evidence at trial. Certainly [Petitioner] could have
engaged an accident reconstructionist to review the case prior to trial and the record
supports that the court was willing to grant expert witness fees. In fact, [Petitioner]
argues elsewhere in his pleading that defense counsel was inadequate for failing to
produce such an expert based on these materials. [Petitioner] cannot logically argue
that the evidence could not have been discovered using reasonable diligence and
also argue that counsel was ineffective for failing to discover it. As well, based on
the other evidence produced at trial, and considering the anticipated value of Mr.
Bereza’s testimony once tested by cross-examination, [Petitioner] cannot show that
his opinion would have a different result probable on retrial.
(ECF No. 6-38, PageID.5564–5565.)
The trial court’s determination tracks with clearly established federal law. The Supreme
Court has recognized that “[t]he selection of an expert witness is a paradigmatic example of the
type of ‘strategic choic[e]’ that, when made ‘after a thorough investigation of [the] law and facts,’
is ‘virtually unchallengeable.’” Hinton v. Alabama, 571 U.S. 263, 275 (2014) (quoting Strickland,
466 U.S. at 690). Here, there is no record evidence suggesting that Petitioner’s counsel did not
investigate the possibility of calling an expert accident reconstructionist to testify at trial. Absent
such support, Petitioner cannot overcome the presumption that counsel’s actions fell within “the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
Moreover, Petitioner provides no evidence that an expert was available to testify on his
behalf. Although Petitioner submitted “newly discovered evidence” from Bereza in support of his
Rule 6.502 motion, nowhere did Mr. Bereza indicate that he would have been available to testify
on Petitioner’s behalf at Petitioner’s trial. “A defendant cannot simply state that the testimony
would have been favorable; self-serving speculation will not sustain an ineffective assistance
claim.” Ashimi, 932 F.2d at 650 (footnote omitted); see also Lagrone v. Parris, No. 23-5177, 2023
WL 5623279, at *4 (6th Cir. Aug. 7, 2023) (“Lagrone did not identify an expert his trial counsel
could have called or indicate what an expert could have testified that would have been relevant to
his defense. The speculative impact of expert testimony is not enough to prove prejudice under
Strickland.”); Pillette v. Berghuis, 408 F. App’x 873, 887 (6th Cir. 2010) (stating that “[t]he salient
point is that nobody knows what she would have said. Speculation cannot suffice to establish the

requisite prejudice.”). In any event, Petitioner also fails to demonstrate that, given the
overwhelming evidence against him, testimony from an expert accident reconstructionist would
have altered the outcome of his trial in any way. Petitioner, therefore, is not entitled to relief with
respect to this assertion of ineffective assistance.
In sum, Petitioner has not demonstrated that the trial court’s rejection of his ineffective
assistance of trial counsel claims is contrary to, or an unreasonable application of, Strickland.
Petitioner, therefore, is not entitled to relief with respect to habeas ground VI.
3. Ground V—Ineffective Assistance of Appellate Counsel
Petitioner faults appellate counsel for failing to “challenge the change in the cause of death,
failing to challenge the absent Dr. Millard at either trial, or failing to challenge the Brady violation
under current case law.” (Am. § 2254 Pet., ECF No. 21, PageID.5914.) He also suggests that

appellate counsel should have asserted a claim of ineffective assistance premised upon trial
counsel’s failure to call Dr. Millard as a witness. (Id., PageID.5913.)
The trial court rejected Petitioner’s claim of ineffective assistance of appellate counsel in
its order denying Petitioner’s Rule 6.502 motion, stating:
The court has found meritless the issues [Petitioner] claims appellate counsel
should have raised. The court cannot fault appellate counsel for failure to present
these non-meritorious issues to the Court of Appeals, and the decision not to do so
falls squarely within appellate counsel’s discretion. [Petitioner] has not established
that counsel’s performance was deficient or prejudicial. This issue too is without
merit and [Petitioner] has failed to show either good cause or actual prejudice
entitling him to relief.
(ECF No. 6-38, PageID.5575.) As thoroughly discussed supra, this Court determined that
Petitioner’s underlying arguments lack merit. Accordingly, “appellate counsel’s failure to raise
[any of those claims] on direct appeal cannot be deemed constitutionally deficient performance.”
Willis v. Smith, 351 F.3d 741, 746 (6th Cir. 2003); see also Greer v. Mitchell, 264 F.3d 663, 676

(6th Cir. 2001) (“If trial counsel performed adequately, our inquiry is at an end; by definition,
appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.”). Thus,
Petitioner has not demonstrated that the trial court’s rejection of his ineffective assistance of
appellate counsel claim is an unreasonable application of Strickland. Petitioner, therefore, is not
entitled to relief with respect to habeas ground V.
E. Ground VII—Request for New Trial Premised Upon New Evidence/Actual
Innocence
As his seventh ground for relief, Petitioner contends that due process requires that he
receive a new trial premised upon newly discovered evidence. (Am. § 2254 Pet., ECF No. 21,
PageID.5920.) Specifically, Petitioner contends that the cause of death listed on Boothby’s death
certificate was changed, and that Dr. Millard, the individual who signed the first death certificate,
“was never consulted by anyone regarding Ms. Boothby’s death, including police officers, the
prosecuting attorney, defense attorneys[,] or investigators.” (Id.) When Dr. Millard signed the
initial death certificate, the death certificate ruled that Boothby’s death was an accident. (Id.)
Petitioner references newly discovered evidence in the form of an affidavit from investigator
Thomas G. Bereza memorializing Dr. Millard’s statements regarding the signature on the second

death certificate. (Id., PageID.5920–5921.)
To the extent Petitioner is attempting to assert a claim of actual innocence premised upon
newly discovered evidence, he fails to state a cognizable federal claim. The Supreme Court has
stated: “Claims of actual innocence based on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an independent constitutional violation occurring in
the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). But the
Herrera Court did not close the door completely, stating in dicta that “in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a

defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to
process such a claim.” Id. at 417. Thus, even without the occurrence of any independent
constitutional violation during the state criminal proceeding, federal habeas relief might be
warranted for “truly persuasive demonstration of actual innocence,” provided: (1) the habeas
petition seeks relief in a capital case, in which case such a demonstration of actual innocence
“would render the execution of a defendant unconstitutional”; and (2) there is “no state avenue
open to process such a claim.” Id. The Supreme Court emphasized that “the threshold showing for
such an assumed right would necessarily be extraordinarily high.” Id.; see also House v. Bell, 547
U.S. 518, 555 (2006) (“In Herrera, however, the Court described the threshold for any hypothetical
freestanding innocence claim as ‘extraordinarily high.’”); Cress v. Palmer, 484 F.3d 844, 854–55

(6th Cir. 2007).
Two years after Herrera, the Supreme Court held that a claim of actual innocence can be
raised “to avoid a procedural bar to the consideration of the merits of [the petitioner's]
constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case,
where a constitutional violation has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for
the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). In Schlup, the Supreme
Court held that a credible showing of actual innocence was sufficient to enable a court to reach the
merits of an otherwise procedurally barred habeas petition. Schlup, 513 U.S. at 317. The actual
innocence claim in Schlup is “not itself a constitutional claim, but instead a gateway through which
a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Id. at 315 (citing Herrera, 506 U.S. at 404). Thus, the Supreme Court distinguished
between a procedural innocence claim, which can permit a petitioner to overcome procedural

obstacles that would otherwise preclude review of underlying constitutional claims, and a
substantive or “free-standing” claim of innocence discussed in Herrera.
This Court may grant habeas corpus relief only when the state court has violated or
unreasonably applied a clearly established holding of the Supreme Court. See 28 U.S.C. § 2254(d);
Williams, 529 U.S. at 412. Recently, the Sixth Circuit acknowledged that the actual innocence
“equitable-exception [to the AEDPA statute of limitations] doctrine is not a freestanding
substantive claim for habeas relief. The Supreme Court has not decided whether actual innocence
is a substantive ground for relief.” Hubbard v. Rewerts, 98 F.4th 736, 742 (6th Cir. 2024); see also
Smith v. Nagy, 962 F.3d 192, 206 (6th Cir. 2020) (citing Schlup and Herrera for the proposition
that freestanding claims of actual innocence are not cognizable on habeas corpus review); Cress,

484 F.3d at 854 (citing cases for the same proposition). Accordingly, in the absence of clearly
established Supreme Court precedent establishing a freestanding claim of actual innocence,
Petitioner’s claim is without merit. Even if Petitioner could invoke this exception and obtain
habeas relief on his freestanding innocence claim, he would have to meet both of the requirements
set forth above and then overcome the “extraordinarily high” threshold. Petitioner fails the first
requirement. This is not a capital case, and, thus, the concern about the unconstitutionality of
executing a defendant who has shown persuasive evidence of actual innocence is not implicated.
See Herrera, 506 U.S. at 417 (“We first point out the obvious - that this is not, in fact, a capital
case.”). Accordingly, for the reasons set forth above, Petitioner is not entitled to relief with respect
to habeas ground VII.4
F. Ground VIII—Trial Court Error/Judicial Bias
As his eighth and final ground for relief, Petitioner contends that he is entitled to a new
trial because the “trial judge abused his judicial discretion by circumventing a Sixth Amendment

right to confront a specific witness displaying judicial bias.” (Am. § 2254 Pet., ECF No. 21,
PageID.5926.) Specifically, Petitioner takes issue with the trial court’s determination that Adrian
Travier could testify regarding statements made to him by Petitioner’s co-defendant Ivory Shaver.
(Id.) Essentially, Petitioner contends that Travier’s testimony should not have been admitted
because his testimony amounted to Ivory’s “confession” to Travier, and Petitioner had no
opportunity to confront Ivory about the statements because they were tried jointly, and Ivory
exercised his Fifth Amendment right against self-incrimination. (Id., PageID.5928.) According to
Petitioner, Travier’s “testimony was prejudicial to Petitioner because the term ‘nephew’ was easily
recognized by the jury as Petitioner.” (Id., PageID.5929.)
Travier testified that he first met Ivory Shaver in 2004. (Trial Tr. XIV, ECF No. 33-15,

PageID.9733.) He next saw Ivory again in 2009, when they were both incarcerated at the Lakeland
Correctional Facility. (Id., PageID.9737.) Travier testified that during his incarceration, he would
see Ivory Shaver “pretty much day after day.” (Id., PageID.9743.) Ivory expressed concerns to
Travier regarding a parole hearing, wondering if “his parole decision [was] being delayed

4 Indeed, in his amended § 2254 petition, Petitioner expressly recognizes that “[c]laims of [a]ctual
[i]nnocence only serve as a gateway” to procedural bars. (ECF No. 21, PageID.5923.) Despite that
recognition, Petitioner has still raised this argument as a separate ground for relief. Petitioner,
however, also asks that the Court find that actual innocence “compel[s] review [of any claims]
regardless of any default.” (Id.) As set forth supra in footnote 1, the Court has concluded that
judicial economy favors proceeding directly to a discussion of the merits of Petitioner’s claims.
Accordingly, there is no need for the Court to consider whether Petitioner can overcome the
procedural default of any of his other grounds for relief.
because—due to an investigation.” (Id., PageID.9745.) Travier testified that ultimately, he and
Ivory had a conversation where Ivory mentioned “a white girl named Debbie that was beaten to
death.” (Id., PageID.9747.) Ivory “would make mention of him, his nephew and Ed and somebody
named Shevy, a female named Shevy.” (Id.) Travier testified that at one point, Ivory “just flat out

told [Travier] what he did.” (Id., PageID.9748.) When asked what Ivory said, Travier stated:
He said that a female—white female named Debbie was beaten to death and ran
over twice to make it look like a hit an[d] run. And he had told his nephew on
numerous occasions that she shouldn’t—that he should have been quit dealing with
her and he kept getting into it with her. And she knew some things that she shouldn’t
have knew. And they had reason to get rid of her. So they tried to make it look like
a hit-and-run. Beath her death. Ran over the body twice and threw it out the car on
the way to Kalamazoo. That’s what he told me. That’s what he related to me.
(Id.) Travier testified that he never asked for the name of Ivory’s nephew, and that he did not know
Petitioner at that time. (Id., PageID.9759.) Travier later “sent a letter to the Van Buren County
Prosecutor’s Office stating that he had information regarding the investigation of Deborah
Boothby’s death.” Shaver, 2013 WL 4864204, at *17.
In his counseled brief on direct appeal, Petitioner contended that the trial court erred by
denying his motion for a separate trial. (ECF No. 6-29, PageID.5104.) As part of his argument,
Petitioner relied upon the trial court’s ruling allowing Travier’s testimony regarding Ivory
Shaver’s statements. (Id., PageID.5107–5108.) In its opinion, the court of appeals rejected
Petitioner’s argument regarding the denial of his motion for a separate trial without mentioning
the testimony provided by Travier. See Shaver, 2013 WL 4864204, at *11. The court of appeals
went on to note, however, that Shevolier Gill “raise[d] two arguments raised by her co-
defendants,” including an argument that the trial court denied her motion for a separate trial. Id.
at *12. The court of appeals rejected that argument, stating:
Regarding the severance issue, Shevolier specifically argues that her substantial
rights were prejudiced by the joint trial because she was forced to testify in response
to the testimony of Adrian Travier that was offered against Ivory. Travier’s
testimony constituted a compelling reason for severance because the jury was
permitted to consider evidence that would not have been admissible against
Shevolier if she were given a separate trial. Moreover, Shevolier argues that it was
difficult for the jurors to determine what evidence was applicable to each of the
defendants. Shevolier maintains that she was a “small fish” lost in a large and
complex trial.
We do not find any of Shevolier’s arguments persuasive. First, the trial court
specifically ruled that Travier’s testimony was admissible against all three
defendants, and this ruling was not error, as discussed infra. Thus, Shevolier’s
argument that this evidence would not have been admissible if she had been granted
a separate trial is without merit. Moreover, almost all of the witnesses who testified
to the events on the night of the victim’s death testified to defendants’ actions as a
unit, i.e., all three defendants were at the Blue Star Lounge, all three defendants
were beating the victim in the parking lot, Shevolier and Ivory were seen in the car
that the victim was placed in together, and Burnette testified that all three
defendants were present at the second scene and were actively engaged in further
beating the victim. Thus, the evidence submitted at the joint trial would have been
submitted basically in its entirety at any separate trial held for Shevolier.
Accordingly, the evidence presented during trial weighed in favor of a joint trial
and did not support severance.
Similarly, there was no risk that Shevolier would be a “small fish” caught in the
middle of a large trial. The testimony demonstrated that she was principally
involved in the kidnapping and murder of the victim. Moreover, the jury was
specifically instructed that it must determine each defendant’s guilt individually,
and must consider only evidence relevant to each particular defendant when making
its determination. Jurors are presumed to follow their instructions. Unger, 278
Mich. App. at 227. Thus, Shevolier has not demonstrated any prejudice that resulted
from the joint trial. Accordingly, we conclude that the trial court did not abuse its
discretion by denying her motion for a separate trial.
Shaver, 2013 WL 4864204, at *12–13. The court of appeals also rejected Shevolier Gill’s
argument that the admission of Ivory’s statements through Travier’s testimony violated Michigan
Rule of Evidence 804(b)(3), stating:
In this case, it is not disputed that the declarant, Ivory, was unavailable because he
exercised his Fifth Amendment right not to testify. Moreover, Ivory’s statement
was clearly against his penal interest because he admitted to personally murdering
a woman with the assistance of codefendants; he did not attempt to minimize his
role in the murder. Finally, a reasonable person would recognize the incriminating
nature of the statement and would believe that such a confession would be true. See
People v. Ortiz–Kehoe, 237 Mich. App 508, 518; 603 N.W.2d 802 (1999). Thus,
Ivory’s statement to Travier satisfies the requirements for admission under MRE
804(b)(3), and is clearly admissible against Ivory.
In order to be admissible against all defendants, including Shevolier, the statement
must satisfy the requirements set forth by Poole: that the statement was made in
narrative form, by the declarant’s own initiative, and is reliable as a whole because
it was against the declarant’s own interest. Poole, 444 Mich. at 161. In this case,
Travier testified that he and Ivory were friends while incarcerated together and
often discussed parole. He testified that one day Ivory told him he was concerned
about his parole being denied due to an investigation, and eventually that Ivory “flat
out told” Travier what he had done. Ivory told Travier about the murder in a
narrative form. Travier testified that he did not ask probing questions, only that he
asked who was with Ivory after Ivory kept referring to “everyone.” Travier
explained they were just having a normal conversation and he was not trying to pull
information out of Ivory. Finally, Ivory’s statement was clearly incriminating.
Thus, because Ivory was clearly incriminating himself in his statement, and he
volunteered names when Travier asked for a number, and he clearly told the story
in narrative form on his own initiative, the statements were properly admitted
against both Ivory and his codefendants. Accordingly, the trial court did not abuse
its discretion.
Shaver, 2013 WL 4864204, at *18. In a footnote, the court of appeals noted that Shevolier
“concedes that under Crawford v. Washington, 541 U.S. 36; 124 S Ct 1354; 158 L.Ed.2d 177
(2004), Ivory’s statements to Travier were not testimonial; thus, the Confrontation Clause is not
implicated by their admission.” Id. at *16 n.6.
As an initial matter, an inquiry whether evidence was properly admitted or improperly
excluded under state law “is no part of the federal court’s habeas review of a state conviction [for]
it is not the province of a federal habeas court to re-examine state-court determinations on state-
law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The decision of the state courts on
a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983);
see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”). The court of appeals’ conclusion that the trial
court’s admission of Travier’s testimony under Michigan Rule of Evidence 804(b)(3) was proper
is, therefore, axiomatically correct.
It is possible that an evidentiary ruling—even a ruling that is axiomatically correct under
state law—still violates due process. State-court evidentiary rulings can rise to the level of due
process violations if they offend some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.

2000) (quotation marks omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001);
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide
latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir. 2000).
Further, under the AEDPA, the court may not grant relief if it would have decided the
evidentiary question differently. The court may only grant relief if Petitioner is able to show that
the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme Court
on a question of law or if the state court decided the evidentiary issue differently than the Supreme
Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860
(6th Cir. 2000); see also Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020) (stating that, to obtain
habeas relief based on an allegedly improper evidentiary ruling, a petitioner must identify “a

Supreme Court case establishing a due process right with regard to the specific kind of evidence
at issue”). Petitioner, however, has not met this difficult standard.
As noted above, Petitioner contends that the admission of Travier’s testimony regarding
Ivory’s statements violated his Sixth Amendment Confrontation Clause rights because Ivory
invoked his Fifth Amendment right against self-incrimination and because Petitioner was jointly
tried with Ivory and so could not cross-examine him.
“Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be
a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a
codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987). The Supreme Court, however, has
held that a non-testifying defendant’s statement cannot be admitted at a joint trial if it facially
incriminates the co-defendant. Bruton v. United States, 391 U.S. 123, 135–36 (1968); see also
United States v. Ford, 761 F.3d 641, 652 (6th Cir. 2014) (“In Bruton, the Supreme Court held that
the Confrontation Clause is violated by the introduction of an incriminating out-of-court statement

by a non-testifying co-defendant.”).
However, “[b]ecause it is premised on the Confrontation Clause, the Bruton rule, like the
Confrontation Clause itself, does not apply to nontestimonial statements.” United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009). Here, the Michigan Court of Appeals noted that the
admission of Ivory’s statements to Travier were not testimonial and, therefore, did not implicate
the Confrontation Clause. See Shaver, 2013 WL 4864204, at *16 n.6. Petitioner offers no
convincing argument otherwise.
While Crawford did not specify a “comprehensive definition” of what constitutes
testimonial statements, the Crawford Court did note that “[s]tatements taken by police officers in
the course of interrogations” certainly lie within the “core class of ‘testimonial’ statements.”

Crawford, 541 U.S. at 51–52. “In determining whether statements are testimonial, [a court must]
ask whether the declarant ‘intend[ed] to bear testimony against the accused.’” Johnson, 581 F.3d
at 325 (quoting United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). This determination
depends on “whether a reasonable person in the declarant’s position would anticipate his statement
being used against the accused in investigating and prosecuting the crime.” Cromer, 389 F.3d
at 675.
Here, Petitioner offers no evidence, much less clear and convincing evidence, suggesting
that Ivory anticipated that his statements to Travier would be used against Ivory and his co-
defendants during investigation and prosecution of the incident. Ivory made his statements
regarding Boothby’s death to Travier while discussing his parole hearing and his concerns that a
decision regarding his parole was delayed because of an investigation into the matter. As noted
above, Travier did not pry Ivory for more information, including full names of the others involved.
While Travier did subsequently relay Ivory’s statements to the Van Buren County Prosecutor’s

Office in a letter, the record is simply devoid of evidence from which the Court could conclude
that Ivory anticipated use of his statements against him, Petitioner, Gill, and Foster. Rather, Ivory
was simply an unwitting declarant. Cf. United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008)
(noting that “a statement unwittingly made to a confidential informant and recorded by the
government is not ‘testimonial’ for Confrontation Clause purposes”); United States v. Johnson,
440 F.3d 832, 843 (6th Cir. 2006) (concluding that an unwitting declarant’s secretly recorded
statements made to a friend were not testimonial in nature). In light of the foregoing, the admission
of Travier’s testimony, which included testimony regarding Ivory’s statements, did not violate
Petitioner’s Confrontation Clause rights.
As noted supra, Petitioner also couches his claim in terms of “judicial bias.” Actual judicial

bias amounts to structural error that is not susceptible to harmless error analysis. See Washington
v. Recuenco, 548 U.S. 212, 218 n.2 (2006) (citing Tumey v. Ohio, 273 U.S. 510 (1927) (holding
that a judge with a direct, personal, substantial pecuniary interest in reach a conclusion against [the
criminal defendant] in his case” was constitutionally disqualified)); see also Neder v. United
States, 527 U.S. 1, 8 (1999) (same); Bracy v. Gramley, 520 U.S. 899, 904–905 (1997) (stating that
“the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ before a judge with no
actual bias against the defendant or interest in the outcome of his particular case.” (citations
omitted, emphasis added)). But many circumstances that lead a criminal defendant to question a
judge’s impartiality do not involve “actual bias:”
[M]ost questions concerning a judge’s qualifications to hear a case are not
constitutional ones, because the Due Process Clause of the Fourteenth Amendment
establishes a constitutional floor, not a uniform standard. Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 828, 106 S.Ct. 1580, 1588–1589, 89 L.Ed.2d 823 (1986).
Instead, these questions are, in most cases, answered by common law, statute, or
the professional standards of the bench and bar. See, e.g., Aetna, id., at 820–821,
106 S.Ct., at 1584–1585; Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71
L.Ed. 749 (1927); 28 U.S.C. §§ 144, 455; ABA Code of Judicial Conduct, Canon
3C(1)(a) (1980)
Bracy, 520 U.S. at 904.
A judge’s conduct at trial may be “characterized as ‘bias’ or ‘prejudice’” only if “it is so
extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S.
540, 551 (1994). However, because of the difficulty in determining “whether a judge harbors an
actual, subjective bias,” the courts look to “whether, as an objective matter, the average judge in
[that judge’s] position is likely to be neutral, or whether there is an unconstitutional potential for
bias.” Williams v. Pennsylvania, 579 U.S. 1, 9 (2016) (internal quotation marks omitted); see also
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883 (2009) (“The difficulties of inquiring
into actual bias . . . simply underscore the need for objective rules.”).
The Supreme Court has recognized constitutionally impermissible, objective indicia of bias
in the following types of cases: (1) those cases in which the judge “has a direct, personal,
substantial pecuniary interest in reaching a [particular] conclusion,” Tumey, 273 U.S. at 523;
(2) certain contempt cases, such as those in which the “judge becomes personally embroiled with
the contemnor,” Offut v. United States, 348 U.S. 11, 17 (1954); see also Taylor v. Hayes, 418 U.S.
488 (1974); and (3) cases in which a judge had prior involvement in the case as a prosecutor,
Williams, 579 U.S. at 8. Beyond that, the courts indulge “a presumption of honesty and integrity
in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975). As the Sixth Circuit
has noted:
The presumption of impartiality stems not merely from the judicial-bias caselaw,
see [Withrow], but from the more generally applicable presumption that judges
know the law and apply it in making their decisions, see Lambrix v. Singletary, 520
U.S. 518, 532 n.4 (1997), and the even more generally applicable presumption of
regularity, see Parke v. Raley, 506 U.S. 20, 30–31 (1992); United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926).
Coley v. Bagley, 706 F.3d 741, 751 (6th Cir. 2013).
Petitioner’s bias claim does not implicate the indicia of bias set forth in Tumey, Offut, and
Williams. Nothing in the record suggests that the trial judge had a pecuniary interest in Petitioner’s
case, that the trial judge became embroiled with Petitioner, and that the judge had prior
involvement in the matter as a prosecutor. Rather, a liberal construction of Petitioner’s argument
suggests that he is asserting that the type of “bias” displayed by the trial judge is akin to the type
of bias the Supreme Court defined in Liteky.
The petitioners in Liteky had been charged with willful destruction of United States
property. Id. at 542. Prior to trial, they moved to disqualify the judge based upon “events that had
occurred during and immediately after an earlier trial, involving petitioner Bourgeois, before the
same District Judge.” Id. Specifically, the petitioners argued that, during that earlier case,
the judge had displayed “impatience, disregard for the defense and animosity”
toward Bourgeois, Bourgeois’ codefendants, and their beliefs. The alleged evidence
of that included the following words and acts by the judge: stating at the outset of
the trial that its purpose was to try a criminal case and not to provide a political
forum; observing after Bourgeois’ opening statement (which described the purpose
of his protest) that the statement ought to have been directed toward the anticipated
evidentiary showing; limiting defense counsel’s cross-examination; questioning
witnesses; periodically cautioning defense counsel to confine his questions to issues
material to trial; similarly admonishing witnesses to keep answers responsive to
actual questions directed to material issues; admonishing Bourgeois that closing
argument was not a time for “making a speech” in a “political forum”; and giving
Bourgeois what petitioners considered to be an excessive sentence. The final
asserted ground for disqualification—and the one that counsel for petitioners
described at oral argument as the most serious—was the judge’s interruption of the
closing argument of one of Bourgeois’ codefendants, instructing him to cease the
introduction of new facts, and to restrict himself to discussion of evidence already
presented.
Id. at 542–43.
The Supreme Court rejected the petitioners’ arguments that the judge should have recused
himself. In its analysis, the Court noted that “[t]he judge who presides at a trial may, upon
completion of the evidence, be exceedingly ill disposed towards the defendant, who has been

shown to be a thoroughly reprehensible person.” Id. at 550–51. The Court cautioned, however,
that “the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion
it produced were properly and necessarily acquired in the course of the proceedings, and are indeed
sometimes (as in a bench trial) necessary to completion of the judge’s task.” Id. at 551. The Court
then set forth the showing petitioners needed to make to succeed on a judicial bias claim:
First, judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. See United States v. Grinnell Corp., 384 U.S. [563, 583 (1966)].
In and of themselves (i.e., apart from surrounding comments or accompanying
opinion), they cannot possibly show reliance upon an extrajudicial source; and can
only in the rarest circumstances evidence the degree of favoritism or antagonism
required (as discussed below) when no extrajudicial source is involved. Almost
invariably, they are proper grounds for appeal, not for recusal. Second, opinions
formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible. An example of the
latter (and perhaps of the former as well) is the statement that was alleged to have
been made by the District Judge in Berger v. United States, 255 U.S. 22 (1921), a
World War I espionage case against German-American defendants: “One must
have a very judicial mind, indeed, not [to be] prejudiced against the German
Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal
quotation marks omitted). Not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display. A judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune.
Liteky, 510 U.S. at 555–556 (emphasis in original).5 Overall, the Court concluded, the comments
made by the judge during the prior proceeding did not “display[] deep-seated and unequivocal
antagonism that would render fair judgment impossible.” Id. at 556.
Notably, in Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), the Sixth Circuit conducted an

exhaustive analysis of Supreme Court precedent governing judicial bias. See id. at 393–407. The
Sixth Circuit provided the following summary following its analysis:
In sum, one could read the Supreme Court precedent in this area as holding that the
probability of bias—based on a likelihood or appearance of bias—can be sufficient
to disqualify a judge and violate a party’s constitutional right to due process. But,
one could also read these cases as holding that, other than in cases of contempt
arising in a closed (secret) hearing, only actual bias or pecuniary-interest-based
probability is sufficient—and, moreover, that a matter of mere kinship has, as of
yet, never been acknowledged as a sufficiently biasing interest. Regardless of the
preferred reading—or the merits of one reading over the other—the fact that there
are two or more reasonable readings compels the conclusion that this precedent is
not “clearly established.”
Id. at 407.
The Sixth Circuit has further noted that judicial bias may be established when “the judge’s
remarks clearly indicate a hostility to one of the parties, or an unwarranted prejudgment of the
merits of the case, or an alignment on the part of the [c]ourt with one of the parties.” United States
v. Blood, 435 F.3d 612, 629 (6th Cir. 2006) (internal quotation marks and citations omitted).
Moreover, a judge may commit misconduct when he “abandons his proper rule and assumes [the
role] of [an] advocate” when questioning a witness. Id. (alteration in original). The Sixth Circuit
has set forth the following considerations when analyzing a claim of judicial misconduct or bias:
“(1) ‘the nature of the issues at trial,’ including how lengthy and complex the trial is; (2) ‘the

5 Liteky is a case that addresses the statutory recusal standard for federal judges. The Sixth Circuit
has, nonetheless, relied on Liteky to provide the standard for assessing judicial bias claims under
the Due Process Clause. See Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002); Lyell v. Renico, 470
F.3d 1177, 1187 (6th Cir. 2006).
conduct of counsel,’ and whether the attorneys are ‘unprepared or obstreperous,’; and (3) ‘the
conduct of witnesses.’” United States v. Smith, 706 F. App’x 241, 254 (6th Cir. 2017) (quoting
United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). Moreover, the Sixth Circuit “has
considered the tone of the judicial interruptions, the extent to which they were directed at one side

more than the other, and the presence of any curative instructions at the close of the proceedings.”
McMillian v. Castro, 405 F.3d 405, 410 (6th Cir. 2005). “[T]he rule concerning judicial
interrogation is designed to prevent judges from conveying prejudicial messages to the jury. It is
not concerned with the damaging truth that the questions might uncover.” United States v. Martin,
189 F.3d 547, 554 (7th Cir. 1999).6
Here, Petitioner’s claim of judicial bias is entirely based upon Petitioner’s disagreement
with the trial judge’s ruling allowing Travier to testify regarding co-defendant Ivory Shaver’s
statements. As set forth above, judicial rulings alone are not a sufficient basis for a claim of judicial
bias. Petitioner’s speculation that judicial bias existed is insufficient for him to maintain a judicial
basis claim. See Barnes v. Warden, Ross Corr. Inst., No. 19-3389, 2019 WL 5576345, at *4 (6th

Cir. Sept. 16, 2019); see also Smith v. Caterpillar, Inc., 304 F. App’x 391, 396 (6th Cir. 200*)
(noting that “subjective speculation alone is insufficient to support . . . allegation[s] of judicial
bias”). Accordingly, for the foregoing reasons, Petitioner is not entitled to relief with respect to the
judicial bias aspect of ground VIII.
In sum, the admission of Travier’s testimony regarding Ivory Shaver’s statements did not
violate Petitioner’s Confrontation Clause rights. Furthermore, the trial judge’s ruling upon the

6 The Court recognizes that decisions from the circuit courts do not constitute clearly established
federal law for purposes of AEDPA. See Parker v. Matthews, 567 U.S. 37, 48 (2012). However,
these decisions provide insight into the factors that appellate courts take into consideration when
analyzing a defendant’s claim regarding judicial bias.
admissibility of Travier’s testimony does not amount to judicial bias. Petitioner, therefore, is not
entitled to relief with respect to habeas ground VIII.
V. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam).
Rather, the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Each issue must be considered under the standards set forth
by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.
Consequently, this Court has examined each of Petitioner’s claims under the Slack standard. Under
Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the underlying merit of
Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability. Moreover, although Petitioner has failed to demonstrate that he is in custody in
violation of the Constitution and has failed to make a substantial showing of the denial of a
constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal
would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).

Conclusion
The Court will enter a judgment denying the petition, as well as an order denying a
certificate of appealability.

Dated: February 14, 2025 /s/ Robert J. Jonker
Robert J. Jonker
United States District Judge

Shaver 405867 v. Hoffner

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information