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[[COURTLISTENER_SUBOPINION {"id":"10830879","type":"100trialcourt","part":"opinion","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jordan Dangelo Waire,
Petitioner,
Case No. 5:21-cv-11728
v. Hon. Judith E. Levy
George Stephenson,
Respondent.
_______________________________/
OPINION AND ORDER DENYING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I. Introduction
This is a habeas case brought pursuant to
28 U.S.C. § 2254
.
Michigan prisoner Jordan Dangelo Waire (“Petitioner”) was convicted of
first-degree felony murder,
Mich. Comp. Laws § 750.316
(1)(b), armed
robbery,
Mich. Comp. Laws § 750.529
, felon in possession of a firearm,
Mich. Comp. Laws § 750
.224f, and three counts of possession of a firearm
during the commission of a felony,
Mich. Comp. Laws § 750
.227b,
following a jury trial in the Kalamazoo County Circuit Court. (ECF No.
2, PageID.25.) He was sentenced, as a third habitual offender,
Mich.
Comp. Laws § 769.11
, to life without parole on the murder conviction, a
concurrent term of 30 to 50 years in prison on the armed robbery
conviction, a concurrent term of 6 to 10 years in prison on the felon in
possession conviction, and concurrent terms of 2 years in prison on the
felony firearm convictions to be served consecutively to the other
sentences in 2018. (ECF No. 8-1, PageID.197–198.)
In his pleadings, Petitioner raises claims concerning the jury
instructions, his right to testify and the effectiveness of trial counsel, the
admission of gruesome photographs and the effectiveness of trial counsel,
and the admission of his co-defendant’s preliminary examination
testimony at trial. (ECF Nos. 1, 2.) For the reasons set forth, the Court
denies the habeas petition. The Court also denies a certificate of
appealability and denies leave to proceed in forma pauperis on appeal.
II. Background
Petitioner’s convictions arise from the shooting death of Western
Michigan University student Jacob Jones at his apartment in
Kalamazoo, Michigan in 2016. The Michigan Court of Appeals described
2
the relevant facts, which are presumed correct on habeas review,
28
U.S.C. § 2254
(e)(1); Wagner v. Smith,
581 F.3d 410, 413
(6th Cir. 2009),
as follows:
On December 8, 2016, Jacob Jones, a student at Western
Michigan University (WMU), was shot and killed in his
apartment in Kalamazoo, Michigan. At trial, defendant's
codefendant, Joeviair Kennedy, invoked his right to remain
silent, which resulted in the trial court declaring Kennedy an
unavailable witness under MRE 804(b)(1) and permitting the
prosecution to show the jury a video of Kennedy's previous
testimony at defendant’s preliminary examination.
During that testimony, Kennedy admitted that he and
defendant committed the armed robbery at Jones's apartment
that resulted in Jones’s death, and he described at length
what transpired. Specifically, Kennedy, who played
basketball for WMU at the time, testified that on the evening
of December 8, defendant picked him up after basketball
practice and time at the study table. They went back to the
apartment where defendant was staying. Defendant showed
him a .40 caliber gun and asked him whether he knew
“anyone that we can rob.” Kennedy suggested Jones.
Together, defendant and Kennedy drove to Jones's
apartment. Defendant wore a bandana to conceal his face and
Kennedy shrouded his identifiable hair in the hood of his
sweatshirt. When they entered the apartment, there were a
few other people present in addition to Jones. Defendant
immediately waived the gun at everyone and demanded
marijuana. When they said they didn’t have any, defendant
3
pointed the gun at Jones and shot him in the head. Defendant
then pursued his demands for marijuana, collected four grams
of marijuana and around $25, and demanded everyone’s cell
phones. As defendant and Kennedy prepared to leave, one of
the robbery victims tackled defendant. Kennedy intervened
by getting on top of the victim and throwing punches, freeing
defendant. Kennedy and defendant fled together. However,
Kennedy left his cell phone at the scene. At trial, the other
victims who were in Jones’s apartment that night
corroborated Kennedy’s testimony. One witness testified that
defendant pistol whipped Jones before shooting him. Jones
died from a gunshot wound to the face.
After recovering his cell phone at the scene of the crime, the
police identified Kennedy as a suspect and executed a search
at his apartment. They recovered a gray and black WMU
Adidas sweatshirt. Inside the pocket of the sweatshirt, law
enforcement discovered a red bandana and a Winchester .40
caliber bullet shell casing. They also recovered a cell phone
belonging to one of the robbery victims in a wooded area
behind Kennedy’s apartment. Further investigation revealed
that defendant and another individual, Michael Dobson,
purchased Winchester .40 caliber bullets at a Meijer in
Kalamazoo on the day of the robbery. Dobson, defendant’s
friend, testified that he saw defendant with a gun and that
defendant asked him to purchase the ammunition because
defendant had forgotten his wallet. He also saw defendant
and Kennedy together later that evening “acting irate,” and
he noticed that they had changed their clothes. A ballistics
expert explained that the recovered bullet casing matched the
bullet recovered during Jones’s autopsy. In addition to
4
Kennedy’s testimony, several of the victims were able to
identify defendant at trial as the shooter. The prosecution also
presented evidence that in January 2017, while incarcerated
at the Kalamazoo County jail, defendant asked another
inmate to relay a message to Kennedy “not to open his mouth
about the case” and “to tell him that snitches get stiches.”
Defendant did not present any evidence at trial. The jury
found defendant guilty of all charges.
People v. Waire, No. 344785,
2019 WL 6340826
, at *1–2 (Mich. Ct. App.
Nov. 26, 2019).
Following his convictions and sentencing, Petitioner filed an appeal
of right with the Michigan Court of Appeals essentially raising the same
claims presented on habeas review. The court denied relief on those
claims and affirmed his convictions and sentences.
Id.
at *2–6. Petitioner
also filed an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v. Waire,
505 Mich.
1043
(2020).
Petitioner, through counsel, then filed his federal habeas petition.
He raises the following claims:
I. The trial court refused to instruct the jury on the lesser-
included offense of involuntary manslaughter, in
violation of the Fourteenth Amendment.
5
II. Petitioner was denied his right to testify at trial, and
defense counsel was ineffective for failing to inquire into
Petitioner’s desire to testify, in violation of the Fifth,
Sixth, and Fourteenth Amendment.
III. The admission of gory autopsy photographs violated
Petitioner’s right to a fair trial, and counsel was
ineffective for failing to object to their admission,
contrary to the Sixth and Fourteenth Amendment.
IV. The admission of Kennedy’s preliminary examination
testimony at trial violated Petitioner’s Sixth
Amendment right to confront and cross-examine the
witness against him.
(ECF No. 1, PageID.7–9.) Respondent filed an answer to the petition
contending that it should be denied because a portion of one claim is
barred by procedural default and all of the claims lack merit. (ECF No.
7.)
III. Standard of Review
6
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at
28 U.S.C. § 2241
et seq., sets forth the standard of
review that federal courts must use when considering habeas petitions
brought by prisoners challenging their state court convictions. AEDPA
provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254
(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court cases]’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
7
nevertheless arrives at a result different from [that] precedent.’” Mitchell
v. Esparza,
540 U.S. 12
, 15–16 (2003) (per curiam) (quoting Williams v.
Taylor,
529 U.S. 362
, 405–06 (2000)). “[T]he ‘unreasonable application’
prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith,
539 U.S. 510, 520
(2003) (quoting
Williams,
529 U.S. at 413
). However, “[i]n order for a federal court to find
a state court’s application of [Supreme Court] precedent ‘unreasonable,’
the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively
unreasonable.’”
Id.
at 520–21 (citations omitted); see also Williams,
529
U.S. at 409
. “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions
be given the benefit of the doubt.’” Renico v. Lett,
559 U.S. 766, 773
(2010)
(quoting Lindh v. Murphy,
521 U.S. 320
, 333 n.7 (1997); Woodford v.
Viscotti,
537 U.S. 19, 24
(2002) (per curiam)).
“A state court’s determination that a claim lacks merit precludes
8
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter,
562 U.S.
86, 101
(2011) (citing Yarborough v. Alvarado,
541 U.S. 652, 664
(2004)).
The Supreme Court has emphasized “that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.”
Id.
(citing Lockyer v. Andrade,
538 U.S. 63, 75
(2003)). Pursuant to
§ 2254(d), “a habeas court must determine what arguments or theories
supported or . . . could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a
prior decision” of the Supreme Court. Id. Thus, to obtain federal habeas
relief, a state prisoner must show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id.; see also White v. Woodall,
572 U.S. 415
,
419–20 (2014). “[F]ederal judges are required to afford state courts due
respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Woods v. Donald,
575 U.S.
9
312, 316 (2015). A habeas petitioner cannot prevail so long as it is within
the “realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. Woods v. Etherton,
576 U.S. 113
, 118 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision comports with clearly
established federal law as determined by the Supreme Court at the time
the state court renders its decision. Williams,
529 U.S. at 412
; see also
Knowles v. Mirzayance,
556 U.S. 111, 122
(2009) (noting that the
Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of’ ‘clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Court”) (quoting Wright v. Van Patten,
552 U.S. 120,
123
(2008) (per curiam)); Lockyer v. Andrade,
538 U.S. 63
, 71–72 (2003).
Section 2254(d) “does not require a state court to give reasons before its
decision can be deemed to have been ‘adjudicated on the merits.’”
Harrington,
562 U.S. at 100
. Furthermore, it “does not require citation of
[Supreme Court] cases–indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result of
10
the state-court decision contradicts them.” Early v. Packer,
537 U.S. 3, 8
(2002); see also Mitchell,
540 U.S. at 16
.
The requirements of clearly established law are to be determined
solely by Supreme Court precedent. Thus, “circuit precedent does not
constitute ‘clearly established Federal law as determined by the Supreme
Court’” and it cannot provide the basis for federal habeas relief. Parker v.
Matthews,
567 U.S. 37
, 48–49 (2012) (per curiam); see also Lopez v.
Smith,
574 U.S. 1
, 2 (2014) (per curiam). The decisions of lower federal
courts, however, may be useful in assessing the reasonableness of a state
court’s decision. Stewart v. Erwin,
503 F.3d 488, 493
(6th Cir. 2007)
(citing Williams v. Bowersox,
340 F.3d 667, 671
(8th Cir. 2003); Dickens
v. Jones,
203 F. Supp. 354, 359
(E.D. Mich. 2002)).
A state court’s factual determinations are presumed correct on
federal habeas review. See
28 U.S.C. § 2254
(e)(1). A habeas petitioner
may rebut this presumption only with clear and convincing evidence.
Warren v. Smith,
161 F.3d 358
, 360–61 (6th Cir. 1998). Moreover, habeas
review is “limited to the record that was before the state court.” Cullen v.
Pinholster,
563 U.S. 170, 181
(2011).
11
IV. Analysis
A. Procedural Default
As an initial matter, Respondent contends that a portion of
Petitioner’s third claim is barred by procedural default. (ECF No. 7,
PageID.156–157.) The Court declines to address this procedural defense
as it is not a jurisdictional bar to a review of the merits. Howard v.
Bouchard,
405 F.3d 459, 476
(6th Cir. 2005). Moreover, federal courts on
habeas review “are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones,
351 F.3d 212, 215
(6th Cir. 2003) (citing Lambrix v. Singletary,
520 U.S.
518, 525
(1997)). The Supreme Court has explained the rationale behind
such a policy: “[j]udicial 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.” Lambrix,
520 U.S. at 525
.
Such is the case here. The procedural issue is complex and
intertwined with the ineffective assistance of trial counsel claim, and the
substantive claims are more readily decided on the merits. Accordingly,
12
the Court will proceed to the merits of Petitioner’s claims.
B. Merits
i. Jury Instructions
Petitioner first asserts that he is entitled to habeas relief because
the trial court erred in failing to instruct the jury on lesser offense of
involuntary manslaughter. (ECF No. 2, PageID.47.) Respondent
contends that this claim lacks merit. (ECF No. 7, PageID.138.)
In order for habeas relief to be warranted on the basis of incorrect
jury instructions, a petitioner must show more than the instructions are
undesirable, erroneous or universally condemned. Rather, taken as a
whole, they must be so infirm that they rendered the entire trial
fundamentally unfair. Estelle v. McGuire,
502 U.S. 62, 72
(1991); Wade
v. Timmerman-Cooper,
785 F.3d 1059, 1078
(6th Cir. 2015). A jury
instruction is not to be judged in artificial isolation, but must be
considered in the context of the instructions as a whole and the trial
record. Jones v. United States,
527 U.S. 373, 391
(1999); United States v.
Watson,
778 F. App’x 340
, 355 (6th Cir. 2019). The failure to give an
instruction that is supported by the evidence does not automatically
13
justify habeas relief; the failure to instruct must have rendered the trial
fundamentally unfair. Cupp v. Naughten,
414 U.S. 141, 147
(1973);
Daniels v. Lafler,
501 F.3d 735, 741
(6th Cir. 2007). “An omission, or an
incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Henderson v. Kibbe,
431 U.S. 145, 155
(1977).
State law instructional errors rarely form the basis for federal habeas
relief. Estelle, 502 U.S. at 71–72; Rashad v. Lafler,
675 F.3d 564, 569
(6th
Cir. 2012).
The Michigan Court of Appeals denied relief on this claim. The
court explained in relevant part:
“A defendant in a criminal trial is entitled to have a properly
instructed jury consider the evidence against him or her.”
Dobek, 274 Mich. App. at 82. In People v. McMullan,
284 Mich.
App. 149, 152
;
771 N.W.2d 810
(2009), aff’d
488 Mich. 922
;
789
N.W.2d 857
(2010), this Court set forth the legal analysis for
determining whether a trial court must instruct the jury on
involuntary manslaughter as a lesser included offense of
murder:
A homicide committed with malice is murder.
People v. Mendoza,
468 Mich. 527, 534-536
,
664
N.W.2d 685
(2003). In contrast, the unintentional
killing of another, “‘committed with a lesser mens
rea of gross negligence or an intent to injure, and
not malice,’” is common-law involuntary
14
manslaughter. [People v. Gillis,
474 Mich. 105,
138
;
712 N.W.2d 419
(2006)], quoting People v.
Holtschlag,
471 Mich. 1, 21-22
,
684 N.W.2d 730
(2004). Common-law involuntary manslaughter is
a necessarily included lesser offense of murder.
Mendoza, [468 Mich] at 540-542. If a defendant is
charged with murder, the trial court should
instruct the jury on common-law involuntary
manslaughter, but only if the instruction is
supported by a rational view of the evidence. Id. at
541....
To find involuntary manslaughter, a defendant
must not act with malice. Gillis, [
474 Mich. at
138
]. “Malice is defined as the intent to kill, the
intent to cause great bodily harm, or the intent to
do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.”
People v. Goecke,
457 Mich. 442, 464
;
579 N.W.2d
868
(1998). “[M]alice is implied when the
circumstances attending the killing demonstrate
an abandoned and malignant heart ....”
Id. at 467
.
It can also “be inferred from the use of a deadly
weapon.” People v. Bulls,
262 Mich. App. 618, 627
;
687 N.W.2d 159
(2004). [Emphasis added.]
In sum, defendant was entitled to an involuntary
manslaughter instruction only if a rational view of the
evidence would have supported a finding that Jones’s death
was “caused by an act of gross negligence or an intent to
15
injure, and not malice.” Gillis,
474 Mich. at 138
(quotation
marks and citation omitted). When determining whether an
involuntary manslaughter charge was necessary, this Court
must “review all of the evidence irrespective of who produced
it to determine whether it provides a rational view to support
an instruction on the lesser charge” and should reverse the
trial court’s decision to omit the jury instruction only where
substantial evidence supported giving the instruction. See
People v. McMullan,
488 Mich. 922
, 922;
789 N.W.2d 857
(2010).
Defendant contends that the trial court should have
instructed the jury on involuntary manslaughter.1 In the
present case, the evidence demonstrated that defendant
purchased ammunition for his firearm earlier in the day and
purposefully targeted a particular victim. Enlisting his friend
Kennedy to help, defendant entered Jones’s apartment with a
loaded firearm and quickly used the firearm to pistol-whip
and shoot Jones. Even after he shot Jones, defendant did not
disengage but continued to perpetuate the robbery and
threaten shooting others. No rational view of defendant’s
conduct and the circumstances of the crime, including the use
of a deadly weapon, could support a finding of gross
negligence or intent to injure without malice. See Gillis, 474
1 Defendant proclaims error in the failure to give the involuntary
manslaughter instruction, but essentially concedes in his brief that the facts admitted
into evidence do not rationally support the instruction because defendant was not
asked if he wanted to testify, which is addressed in the next issue on appeal, and
because defense counsel called no witnesses who might have supported an accidental
version of the shooting, but defendant identifies no such witnesses who would have
possessed such information.
16
Mich. at 138. Because no substantial evidence supports giving
an involuntary manslaughter instruction, McMullan, 488
Mich. at 922, we conclude that the trial court did not abuse its
discretion by not instructing the jury on the lesser offense.2
Waire,
2019 WL 6340826
, at *2–3 (footnotes and alterations in original).
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
First, to the extent that Petitioner contests the Michigan Court of
Appeals’ interpretation of state law as to this issue, he is not entitled to
relief. It is well-settled that “a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.” Bradshaw v. Richey,
546
U.S. 74, 76
(2005). State courts are the final arbiters of state law and
federal courts will not intervene in such matters. Lewis v. Jeffers, 497
2Even if the trial court should have instructed the jury on involuntary
manslaughter, failure to do so would constitute harmless error. The trial court
instructed the jury on first-degree felony-murder and on second-degree murder, and
the jury convicted on the greater offense. If the jury had any doubts that defendant
committed first-degree felony murder, it could have convicted defendant of the lesser
charge of second-degree murder. Its refusal to do so indicates a lack of likelihood that
it would have convicted defendant of the lesser charge of involuntary manslaughter.
See People v. Beach,
429 Mich. 450, 490-491
;
418 N.W.2d 861
(1988), superseded by
statute on other grounds as stated in People v. Smith-Anthony,
494 Mich. 669
(2013);
see also People v. Sullivan,
231 Mich. App. 510, 520
;
586 N.W.2d 578
(1998).
17
U.S. 764
, 780 (1990). Habeas relief does not lie for perceived errors of
state law. Estelle, 502 U.S. at 67–68.
Second, Petitioner fails to establish that the trial court’s refusal to
instruct the jury on involuntary manslaughter rendered his trial
fundamentally unfair. The Supreme Court has declined to decide
whether due process requires jury instructions on lesser included
offenses in non-capital cases. See Beck v. Alabama,
447 U.S. 625
, 638 n.14
(1980); McMullan v. Booker,
761 F.3d 662, 667
(6th Cir. 2014). As a
result, the Sixth Circuit has held that “the Constitution does not require
a lesser-included offense instruction in non-capital cases.” Campbell v.
Coyle,
260 F.3d 531, 541
(6th Cir. 2001) (citing Bagby v. Sowders,
894
F.2d 792
, 795–97 (6th Cir. 1990) (en banc)); see also Scott v. Elo,
302 F.3d
598, 606
(6th Cir. 2002). Because first-degree murder is a non-capital
offense in Michigan, Scott,
302 F.3d at 606
, an involuntary manslaughter
instruction was not constitutionally required at trial. See also Tegeler v.
Renico,
253 F. App’x 521
, 524–25 (6th Cir. 2007) (holding that due process
did not require jury instruction on lesser-included offense of voluntary
manslaughter in first-degree premeditated murder case where petitioner
18
received a life sentence and was not eligible for parole). Petitioner thus
fails to state a claim upon which habeas relief may be granted as to this
issue.
The Sixth Circuit has further stated that a claim that the state
court was required to instruct the jury on a lesser-included offense
“warrants habeas relief, if at all, only in the rare instance that ‘a
fundamental miscarriage of justice is found to have resulted from the
arbitrary and unsupportable denial of a lesser included offense
instruction in clear defiance of state law.’” Richardson v. Campbell, No.
21-3421,
2021 WL 6773144
, at *2 (6th Cir. Nov. 2, 2021) (quoting Bagby,
894 F.2d at 795
), cert. den.,
142 S. Ct. 1389
(2022). Petitioner makes no
such showing.
Moreover, even if Petitioner states a cognizable claim, he fails to
show that the trial court’s refusal to give an involuntary manslaughter
instruction rendered his trial fundamentally unfair. As explained by the
Michigan Court of Appeals, such an instruction was not warranted based
upon the evidence at trial which showed that Petitioner purchased
ammunition before the crime, used a loaded gun to strike and shoot the
19
victim in the head during the commission of a planned armed robbery,
and continued to rob and threaten others at the apartment before fleeing
the scene. Waire,
2019 WL 6340826
, at *3. Such actions were sufficient
to establish that he acted with malice, i.e., the intent to kill, the intent to
cause great bodily harm, or the intent to do an act in wanton and willful
disregard of the likelihood that the natural tendency of such behavior is
to cause death or great bodily harm. An involuntary manslaughter
instruction was not supported by the evidence at trial.
Finally, as noted by the Michigan Court of Appeals, “[e]ven if the
trial court should have instructed the jury on involuntary manslaughter,
failure to do so would constitute harmless error” because the jury
convicted Petitioner of first-degree murder and rejected the lesser verdict
of second-degree murder.
Id.
at *3 n.2; see also Abdus-Samad v. Bell,
420
F.3d 614, 628
(6th Cir. 2005) (reasoning that jury’s decision to convict
petitioner of first-degree felony murder “strongly suggests” that the trial
court’s failure to instruct the jury on the lesser offenses of voluntary and
involuntary manslaughter was at most harmless error because the jury
was instructed on the lesser-included offense of second-degree murder
20
but “chose felony murder over second-degree murder”). In other words,
because the jury chose first-degree murder over second-degree murder,
there is no basis to believe that it would have opted for a lesser offense of
manslaughter over first-degree murder.
The lack of an involuntary manslaughter instruction did not have
a “substantial and injurious effect or influence in determining the jury’s
verdict,” Brecht v. Abrahamson,
507 U.S. 619, 623
(1993) (quoting
Kotteakos v. United States,
328 U.S. 750, 776
(1946)), nor did the trial
court unreasonably apply the harmless error standard. See Brown v.
Davenport,
596 U.S. 118, 134
(2022) (holding that a petitioner must
satisfy Brecht and AEDPA standards to obtain habeas relief). Habeas
relief is not warranted on this claim.
ii. Right to Testify & Effectiveness of Counsel
Petitioner next asserts that he is entitled to habeas relief because
defense counsel was ineffective for not advising him or inquiring about
his desire to testify at trial; as such, Petitioner argues he was denied his
right to testify at his trial. (ECF No. 2, PageID.59.)
A criminal defendant has a constitutional right to testify on his or
21
her own behalf. Rock v. Arkansas,
483 U.S. 44
, 52–53 (1987); see also
id.
at 53 n.10. “The right to testify is personal to the defendant, may be
relinquished only by the defendant, and the defendant’s relinquishment
of the right must be knowing and intentional.” United States v. Webber,
208 F.3d 545
, 550–51 (6th Cir. 2000) (citing United States v. Joelson,
7
F.3d 174, 177
(9th Cir. 1993)). A trial court is not required to inquire as
to whether a defendant knowingly, voluntarily, and intelligently waives
the right to testify.
Id.
at 551–52; see also Goff v. Bagley,
601 F.3d 445,
471
(6th Cir. 2010). Waiver of the right to testify may be inferred from a
defendant’s conduct and is presumed when the defendant fails to testify
or notify the trial court of the desire to testify. Hodge v. Haeberlin,
579
F.3d 627
, 639–40 (6th Cir. 2009) (citing Webber,
208 F.3d at 551
).
Defense counsel’s role is to advise the defendant about whether to
take the stand, but the final decision is left to the defendant. Webber,
208
F.3d at 551
. On habeas review, there is “a strong presumption that trial
counsel adhered to the requirements of professional conduct and left the
final decision about whether to testify with the client.” Hodge,
579 F.3d
at 639
. If the defendant wants to testify, “he can reject his attorney’s
22
tactical decision by insisting on testifying, speaking to the court, or
discharging his lawyer.”
Id.
If the defendant fails to do so, waiver of the
right to testify is presumed.
Id.
The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to the effective assistance of
counsel. In Strickland v. Washington,
466 U.S. 668
(1984), the Supreme
Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a
petitioner must prove that counsel’s performance was deficient. This
requires a showing that counsel made errors so serious that he or she was
not functioning as counsel as guaranteed by the Sixth Amendment.
Id.
at 687
. Second, the petitioner must establish that counsel’s deficient
performance prejudiced the defense. Counsel’s errors must have been so
serious that they deprived the petitioner of a fair trial or appeal.
Id.
To satisfy the performance prong, a petitioner must identify acts
that were “outside the wide range of professionally competent
assistance.”
Id. at 690
. The reviewing court’s scrutiny of counsel’s
performance is “highly deferential.”
Id. at 689
. There is a strong
23
presumption that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Id. at 690
. The petitioner bears the burden of overcoming the
presumption that the challenged actions were sound trial strategy.
Id. at
687
.
As to the prejudice prong, a petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694
. A
reasonable probability is one that is “sufficient to undermine confidence
in the outcome” of the proceeding.
Id.
On balance, “[t]he 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.”
Id. at
686
.
The Supreme Court has confirmed that a federal court’s
consideration of ineffective assistance of counsel claims arising from
state criminal proceedings is quite limited on habeas review due to the
deference accorded trial attorneys and state appellate courts reviewing
24
their performance. “The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review
is ‘doubly’ so.” Harrington,
562 U.S. at 105
(internal and end citations
omitted). “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
The Michigan Court of Appeals denied relief on this claim. The
court explained:
Defendant relates that the record reflects no colloquy
concerning defendant’s right to remain silent or to choose to
testify. Because of the absence of any discussion on the record,
defendant argues that trial counsel and the trial court
unlawfully precluded defendant from making the decision for
himself whether to testify. We disagree.
“The question whether defense counsel performed
ineffectively is a mixed question of law and fact; this Court
reviews for clear error the trial court’s findings of fact and
reviews de novo questions of constitutional law.” People v.
Trakhtenberg,
493 Mich. 38, 47
;
826 N.W.2d 136
(2012). “In
order to obtain a new trial, a defendant must show that (1)
counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the
outcome would have been different.”
Id. at 51
.
25
In the present case, defendant did not move in the trial court
for a new trial or for an evidentiary hearing. Therefore, our
review is for mistakes apparent on the record. People v.
McFarlane,
325 Mich. App. 507, 527
;
926 N.W.2d 339
(2018).
We review de novo “whether defense counsel’s acts or
omissions fell below an objective standard of reasonableness
under prevailing professional norms and whether, without
the error, the result of the proceedings would have been
different.”
Id.
“A defendant’s right to testify in his own defense arises from
the Fifth, Sixth, and Fourteenth Amendments of the United
States Constitution. Although counsel must advise a
defendant of this right, the ultimate decision whether to
testify at trial remains with the defendant.” People v.
Bonilla-Machado,
489 Mich. 412, 419
;
803 N.W.2d 217
(2011).
Although it would have been prudent to do so, there is no
formal requirement that counsel or the trial court
memorialize an on-the-record waiver of a defendant’s decision
not to testify. See People v. Harris,
190 Mich. App. 652, 661
;
476 N.W.2d 767
(1991) (recognizing that “there is no
requirement in Michigan that there be an on-the-record
waiver of a defendant’s right to testify”). Therefore, contrary
to defendant’s argument, the absence of a colloquy
memorializing defendant’s election not to testify does not
necessarily support the conclusion that defense counsel's
performance was deficient. Even assuming that trial counsel
failed to inform defendant of his right to testify, defendant has
not established entitlement to relief.
26
In People v. Simmons,
140 Mich. App. 681, 685-686
;
364
N.W.2d 783
(1985), we held that, even assuming defense
counsel did not inform the defendant of his right to testify,
there was no basis for relief on an ineffectiveness of counsel
claim when the defendant failed to allege that he was ignorant
of his right to testify in his own defense, “d[id] not allege that
he would have testified if presented with the option[,]” and
provided “no indication of what his testimony would have
been.” In the present case, as in Simmons, there is simply
nothing in the existing record to show that defendant was
ignorant of the right to testify, that he would have testified if
given the chance, or that the substance of his testimony would
have had any likelihood of undermining confidence in the
jury’s verdict. Because defendant has not shown that his
attorney’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that
he suffered prejudice therefrom, defendant’s claim of
ineffective assistance of counsel necessarily fails. McFarlane,
325 Mich. App. at 527
.
Waire,
2019 WL 6340826
, at *3–4.
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
Petitioner argues that the Michigan Court of Appeals’ decision was
“objectively unreasonable . . . to reject this claim for lack of record
support” because “the Court of Appeals did not remand for an evidentiary
hearing” and “refuse[d] to allow Petitioner to provide that record
27
support.” (ECF No. 2, PageID.70.) In support, Petitioner cites Michigan
Court Rule 7.211(C)(1), which describes the procedure for an appellant’s
motion to remand to the trial court.
Petitioner’s argument is not convincing. Petitioner does not
demonstrate an entitlement to an evidentiary hearing or an opportunity
to “provide that record support.” (ECF No. 2, PageID.70.) Petitioner
already had an opportunity to create such a record: during his trial
proceedings. Further, Michigan Court Rule 7.211(C)(1) does not lend
support to Petitioner’s argument because the state court records do not
demonstrate that Petitioner submitted a motion to remand for an
evidentiary hearing.3
Additionally, Petitioner does not present any evidence to show that
he was misled, was uninformed about his rights, or believed that he could
not testify in his own defense. “[A] ‘barebones assertion by a defendant,
[even one] made under oath, is insufficient to require a hearing or other
3 Petitioner, in his brief at the Michigan Court of Appeals, requested that the
Michigan Court of Appeals “vacate his conviction and/or remand for a new trial.”
(ECF No. 8-12, PageID.1242.) This does not appear to be a motion to remand for an
evidentiary hearing.
28
action on his claim that his right to testify in his own defense was denied
him . . . . Some greater particularity is necessary [] to give the claim
sufficient credibility to warrant a further investment of judicial resources
in determining the truth of the claim.’” Cistrunk v. Campbell, No.
2:12-CV-12568,
2020 WL 376454
, at *17 (E.D. Mich. Jan. 23, 2020)
(quoting McCoy v. Bock, No. 01-10052,
2003 WL 22994984
, *11 (E.D.
Mich. Dec. 17, 2003)). Conclusory allegations, without evidentiary
support, are insufficient to warrant habeas relief. Wogenstahl v. Mitchell,
668 F.3d 307
, 335–36 (6th Cir. 2012); Washington v. Renico,
455 F.3d 722,
733
(6th Cir. 2006). Petitioner did not attempt to testify at trial, nor did
he notify the trial court of his desire to do so. Waiver of the right to testify
is therefore presumed–and Petitioner fails to rebut that presumption or
to otherwise show that counsel rendered ineffective assistance on this
basis. See Gonzales v. Elo,
233 F.3d 348, 357
(6th Cir. 2000).
Petitioner fails to establish that he was denied his right to testify
or that counsel was ineffective. Habeas relief is not warranted on this
claim.
iii. Admission of Photos & Effectiveness of Counsel
29
Petitioner also asserts that he is entitled to habeas relief because
the trial court erred in admitting gruesome autopsy photographs of the
victim and defense counsel was ineffective for failing to object to their
admission at trial. (ECF No. 2, PageID.71.) Respondent contends that
this claim is procedurally defaulted and that it lacks merit. (ECF No. 7,
PageID.156.)
Alleged trial court errors in the application of state law are
generally not cognizable as grounds for federal habeas relief. Estelle, 502
U.S. at 67–68; Serra v. Michigan Dep’t. of Corr.,
4 F.3d 1348, 1354
(6th
Cir. 1993). “Trial court errors in state procedure and/or evidentiary law
do not rise to the level of federal constitutional claims warranting relief
in a habeas action unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due process under
the Fourteenth Amendment.” McAdoo v. Elo,
365 F.3d 487, 494
(6th Cir.
2004) (quoting Estelle, 502 U.S. at 69–70); see also Wynne v. Renico,
606
F.3d 867, 871
(6th Cir. 2010) (citing Bey v. Bagley,
500 F.3d 514
, 519–20
(6th Cir. 2007)).
The Michigan Court of Appeals denied relief on this claim. The
30
court explained:
“The decision to admit or exclude photographs is within the
sole discretion of the trial court.” People v. Mills,
450 Mich. 61,
76
;
537 N.W.2d 909
(1995), mod
450 Mich. 1212
(1995). Our
Supreme Court emphasizes that “[g]ruesomeness alone need
not cause exclusion” and “[t]he proper inquiry is always
whether the probative value of the photographs is
substantially outweighed by unfair prejudice.”
Id. at 76
. In
Mills, our Supreme Court set forth the correct analysis for
determining whether photographs are unduly prejudicial:
Photographs that are merely calculated to arouse
the sympathies or prejudices of the jury are
properly excluded, particularly if they are not
substantially necessary or instructive to show
material facts or conditions. If photographs which
disclose the gruesome aspects of an accident or a
crime are not pertinent, relevant, competent, or
material on any issue in the case and serve the
purpose solely of inflaming the minds of the jurors
and prejudicing them against the accused, they
should not be admitted in evidence. However, if
photographs are otherwise admissible for a proper
purpose, they are not rendered inadmissible
merely because they bring vividly to the jurors the
details of a gruesome or shocking accident or
crime, even though they may tend to arouse the
passion or prejudice of the jurors. Generally, also,
the fact that a photograph is more effective than
on oral description, and to the extent calculated to
31
excite passion and prejudice, does not render it
inadmissible in evidence. [Id. at 76-77 (quotation
marks and citations omitted).]
In this case, the prosecution used the challenged photographs
to identify the victim and to both supplement and corroborate
testimony concerning the nature, type, and location of the
victim’s injuries.4 This Court has approved of the use of
autopsy photographs for these purposes. See People v. Unger,
278 Mich. App. 210, 257
;
749 N.W.2d 272
(2008); see also
People v. Ho,
231 Mich. App. 178, 188
;
585 N.W.2d 357
(1998)
(holding that admission of gruesome photographs was proper
where there was a legitimate purpose other than arousing the
sympathies or prejudices of the jury). Moreover, even
assuming that the trial court plainly erred in admitting the
photographs, defendant cannot demonstrate that the error
affected the outcome of trial. See Carines, 460 Mich. at 763.
There was significant evidence directly establishing
defendant’s guilt, including the preserved testimony of his
codefendant and direct testimony from several victims who
were able to identify defendant as the shooter. Moreover,
there was evidence establishing that defendant attempted to
prevent his codefendant from testifying through threats and
4 Specifically, Dr. Joseph Pralow, a forensic pathologist and deputy medical
examiner, used the photographs to explain where Jones was shot, how close the gun
was to the bullet’s point of entry, the likely pathway of the bullet and its resulting
damage, and other injuries suffered by Jones. That the gunman held the gun close to
the victim’s face when he shot him, and that he used the gun to pistol-whip the victim
was circumstantial evidence relevant to the question of whether defendant acted with
malice, an element of the charged crimes. See People v. Unger,
278 Mich. App. 210,
257
;
749 N.W.2d 272
(2008) (concluding that photographs that address matters at
issue are relevant and not unduly prejudicial).
32
intimidation. See People v. Sholl,
453 Mich. 730, 740
;
556
N.W.2d 851
(1996) (acknowledging that a defendant's threat
against a witness demonstrates consciousness of guilt).
We also conclude that trial counsel was not ineffective for
failing to object to the admission of the autopsy photographs.[]
It is likely that the trial court would have admitted the
contested photographs even over an objection because they
were relevant to the nature, type, and location of the victim’s
injuries. The fact that the photographs may have aroused
some passion or prejudice did not render them inadmissible
in evidence. See Mills,
450 Mich. at 77
. Trial counsel was not
required to make a futile objection. See People v. Ericksen,
288
Mich. App. 192, 201
;
793 N.W.2d 120
(2010) (“Failing to
advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.”). Again, even
assuming that defense counsel objected and successfully
precluded the admission of some or all of the contested
photographs, we are not persuaded that the outcome of trial
would have differed because the prosecution presented
overwhelming evidence of defendant’s guilt.
Waire,
2019 WL 6340826
, at *4–5 (footnote in original).
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
First, to the extent that Petitioner asserts a violation of the Michigan
Rules of Evidence or other state law, he fails to state a claim upon which
33
habeas relief may be granted. As discussed supra, federal habeas relief is
unavailable for perceived violations of state law. Estelle, 502 U.S. at 67–
68. State courts are the final arbiters of state law and federal courts will
not intervene in such matters. Lewis, 497 U.S. at 780; see also Bradshaw,
546 U.S. at 76
.
Second, Petitioner fails to establish that the admission of the
disputed photographs violated his due process rights and denied him a
fair trial. The Supreme Court has stated that just because a relevant
photograph “is shocking to the sensibilities of those in the courtroom”
does not alone “render its reception a violation of due process.” Lisenba
v. California,
314 U.S. 219, 228
(1941). The Sixth Circuit has held that a
challenge to the admission of a gruesome photograph does not present a
question of constitutional magnitude. See Cooey v. Coyle,
289 F.3d 882
,
893–94 (6th Cir. 2002) (citing Gerlaugh v. Stewart,
129 F.3d 1027, 1032
(9th Cir. 1997)); Franklin v. Bradshaw,
695 F.3d 439
, 456–57 (6th Cir.
2012) (rejecting petitioner’s argument that admission of 18 autopsy
photographs of victims rendered state criminal trial fundamentally
unfair); Biros v. Bagley,
422 F.3d 379, 391
(6th Cir. 2005) (affirming
34
district court’s denial of habeas relief on claim challenging the admission
of victim photographs because it refuted the petitioner’s account of the
victim’s death).
Petitioner argues that, in his case, admission of the photographs
violated his constitutional rights because the photographs “lacked
significant probative value” and “[a]ny value the photographs had in
‘corroborating’ this undisputed expert testimony was marginal at best
and therefore substantially outweighed by the risk of unfair prejudice.”
(ECF No. 2, PageID.74–75.) The Court disagrees. In this case, the victim
photographs had probative value that was not substantially outweighed
by the risk of unfair prejudice. As explained by the Michigan Court of
Appeals, the photographs identified the victim, depicted the extent,
severity, and nature of his injuries, and were relevant to show how the
victim died and the perpetrator’s state of mind. Waire,
2019 WL 6340826
,
at *4; see also
id.
at *4 n.3. The Court agrees with this reasoning.
Petitioner fails to establish that the admission of the victim photographs
was erroneous, violated due process, or otherwise rendered his trial
fundamentally unfair.
35
Petitioner also fails to establish that defense counsel was ineffective
for failing to object to the admission of the photographs. (ECF No. 2,
PageID.77.) Given the Michigan Court of Appeals’ ruling that the
evidence was admissible and that any error was harmless, as well as this
Court’s ruling that the underlying evidentiary claim lacks merit,
Petitioner cannot establish that counsel erred and/or that he was
prejudiced by counsel’s conduct. Counsel cannot be ineffective for failing
to make a futile or meritless objection or argument. Tackett v.
Trierweiler,
956 F.3d 358, 375
(6th Cir. 2020); see also Coley v. Bagley,
706 F.3d 741, 752
(6th Cir. 2014) (“Omitting meritless arguments is
neither professionally unreasonable nor prejudicial.”). Like the Michigan
Court of Appeals, the Court “is not persuaded that the outcome of trial
would have differed” even with exclusion of some or all of the photographs
“because the prosecution presented overwhelming evidence of
defendant’s guilt.” Waire,
2019 WL 6340826
, at *5. Petitioner fails to
establish that counsel was ineffective under the Strickland standard.
Habeas relief is not warranted on this claim.
iv. Admission of Co-Defendant’s Prior Testimony
36
In his final issue, Petitioner asserts that he is entitled to habeas
relief because the trial court violated his confrontation rights by
admitting co-defendant Joeviair Kennedy’s preliminary examination
testimony at trial. (ECF No. 2, PageID.80.) Respondent contends that
this claim lacks merit.
The Confrontation Clause of the Sixth Amendment guarantees a
criminal defendant the right to confront the witnesses against him or her.
Davis v. Alaska,
415 U.S. 308, 315
(1974). One of the main concerns of
the Confrontation Clause is to ensure the reliability of evidence through
cross-examination. Maryland v. Craig,
497 U.S. 836, 845
(1990). The
Confrontation Clause thus 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. Crawford v. Washington,
541 U.S. 36, 59
(2004); see
also Miller v. MacLaren,
737 F. App’x 269
, 275 (6th Cir. 2018).
A witness is “unavailable” for purposes of the exception to the
confrontation requirement if the prosecution has made a good faith effort
to obtain the witness’s presence at trial. Winn v. Renico,
175 F. App’x 728
,
37
733 (6th Cir. 2006). When a witness refuses to testify, he or she is
unavailable whether the refusal to testify is based upon privilege or is
punishable by contempt. See United States v. Bourjaily,
781 F.2d 539,
544
(6th Cir. 1986) (quoting Mayes v. Sowders,
621 F.2d 850, 856
(6th
Cir. 1980)); see also Green v. MacLaren, No. 17-1249,
2017 WL 3973956
,
at *2 (6th Cir. Aug. 2, 2017).
While the Sixth Circuit has noted that there is “some question
whether a preliminary hearing necessarily offers an adequate prior
opportunity for cross-examination for Confrontation Clause purposes,”
Al-Timimi v. Jackson,
379 F. App’x 435
, 437–38 (6th Cir. 2010) (citing
Vasquez v. Jones,
496 F.3d 564, 577
(6th Cir. 2007)), the Supreme Court
has never held that a defendant is denied the right of confrontation when
a witness is unavailable at trial and the court admits the witness’s
preliminary examination testimony. Al-Timimi,
379 F. App’x at 438
. In
fact, the Supreme Court has found no Confrontation Clause violation by
the admission of an unavailable witness’s prior testimony when there
was an opportunity for cross-examination at the prior proceeding. See
Mattox v. United States,
156 U.S. 237
(1895) (prior trial testimony);
38
Barber v. Page,
390 U.S. 719
, 725–26 (1968) (preliminary hearing
testimony).
The Michigan Court of Appeals denied relief on this claim. The
court explained in relevant part:
‘[T]he Sixth Amendment bars the admission of testimonial
statements by a witness who does not appear at trial unless
the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.’ People v. Dendel
(On Second Remand),
289 Mich. App. 445, 453
;
797 N.W.2d
645
(2010). Prior testimony, such as that given during a
preliminary examination, is testimonial and its admission at
trial implicates a defendant’s confrontation right. See People
v. Bruner,
501 Mich. 220, 229
;
912 N.W.2d 514
(2018). A
witness invoking the Fifth Amendment as justification for not
testifying at trial is an unavailable witness. See People v.
Meredith,
459 Mich. 62, 65-66
;
586 N.W.2d 538
(1998). As to
the requirement that defendant had a prior opportunity for
cross-examination, “‘[t]he Confrontation Clause guarantees
only an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” People v. Sardy
(On Remand),
318 Mich. App. 558
, 564;
899 N.W.2d 107
(2017), quoting United States v. Owens,
484 U.S. 554, 559-560
;
108 S. Ct. 838
;
98 L. Ed. 2d 951
(1988) (quotation marks and
citation omitted).
In this instance, on the first day of defendant’s trial, a colloquy
between the trial court and Kennedy ended with the court
39
asking Kennedy if he wished to waive his Fifth Amendment
right and testify. Kennedy answered, “No, I do not.” Asked by
the trial court if he wished to remain silent, Kennedy
answered, “Yes.” Based on this exchange, the trial court
declared Kennedy an unavailable witness and his testimony
admissible under MRE 804(b)(1).
Rule 804(b)(1) of the Michigan Rules of Evidence provides
that, where a witness is unavailable, the hearsay rule does
not exclude testimony given by that witness at an earlier
proceeding if the party against whom the testimony is offered
had “an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.”
Defendant does not contest that he had an opportunity to
develop testimony by cross-examination of Kennedy. Nor can
he. The record shows that defense counsel’s lengthy
cross-examination of Kennedy at the preliminary
examination took up 40 pages of transcript. At issue, however,
is whether defendant had a “similar motive” to develop the
testimony. Defendant suggests that defense counsel “lacked
the motivation” to impeach Kennedy or his credibility at the
preliminary examination. Moreover, defendant urges this
Court “to recognize a rule that cross-examination conducted
at a preliminary hearing does not satisfy the confrontation
clause” because the purpose of the preliminary hearing is not
to determine guilt or innocence; therefore, defendant did not
have a similar motive to develop Kennedy’s testimony. We
decline to do so.
Among the factors to determine whether a party had a similar
motive to examine a witness at the prior proceeding are:
40
(1) whether the party opposing the testimony had
at a prior proceeding an interest of substantially
similar intensity to prove (or disprove) the same
side of a substantially similar issue; (2) the nature
of the two proceedings–both what is at stake and
the applicable burden of proof; and (3) whether the
party opposing the testimony in fact undertook to
cross-examine the witness (both the employed and
available but forgone opportunities). People v.
Farquharson,
274 Mich. App. 268, 278
;
731
N.W.2d 797
(2007).
The purpose of the preliminary examination is “to determine
if a crime has been committed and, if so, if there is probable
cause to believe the defendant committed it.” People v.
Johnson,
427 Mich. 98, 104
;
398 N.W.2d 219
(1986) (quotation
marks and citation omitted). The prosecution’s purpose in
presenting Kennedy’s testimony at the preliminary
examination and at trial was to show that defendant
committed the charged crimes. Thus, defendant had an
“interest of substantially similar intensity” in proving or
disproving Kennedy’s testimony at the preliminary
examination as he did at trial. Farquharson,
274 Mich. App.
at 278
. Furthermore, despite the lower burden of proof at a
preliminary investigation as compared to trial, defendant had
a similar motive to cross-examine Kennedy, i.e., to show that
Kennedy could not credibly and reliably testify that he killed
Jones with malice during the commission of an armed
robbery. See MCL 750.316(1)(b); Farquharson,
274 Mich. App.
at 278
. Our review of the cross-examination leads us to
41
conclude that counsel vigorously challenged Kennedy’s
memory, credibility, and prior accounts of the shooting.
Because the same issues were at stake in the preliminary
examination and the trial, defendant had a similar interest in
the issues relative to Kennedy, and defense counsel rigorously
cross-examined Kennedy during the preliminary
examination, we conclude that defendant had both an
opportunity and a similar motive to develop Kennedy’s
testimony by cross-examination. Thus, the requirements of
MRE 804(b)(1) and defendant's confrontation right were
satisfied.
Waire,
2019 WL 6340826
, at *5–6 (footnotes omitted).
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The
record reveals that the trial court conducted a preliminary examination
in which both parties had the opportunity to question co-defendant
Kennedy – and did so. The prosecution subsequently produced Kennedy
to testify at trial, but he refused to do so based upon his Fifth Amendment
rights. Given such circumstances, Kennedy was properly deemed
unavailable to testify at trial. The record also indicates that Petitioner
had an adequate opportunity, and the same motive, to question Kennedy
at the prior proceeding. Consequently, the admission of Kennedy’s
42
preliminary examination testimony at trial did not violate Petitioner’s
confrontation rights. See Al-Timimi, 379 F. App’x at 438–40; see also
Williams v. Bauman,
759 F.3d 630, 636
(6th Cir. 2014) (denying habeas
relief on similar claim). Habeas relief is not warranted on this claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner’s claims
lack merit and that he is not entitled to federal habeas relief. Accordingly,
the Court DENIES and DISMISSES WITH PREJUDICE the petition for
a writ of habeas corpus.
Before Petitioner may appeal, a certificate of appealability must
issue. See
28 U.S.C. § 2253
(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
28 U.S.C. § 2253
(c)(2).
When a court denies relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists
would find the court’s assessment of the claim debatable or wrong. Slack
v. McDaniel,
529 U.S. 473
, 484–85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues
43
presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell,
537 U.S. 322, 327
(2003). Petitioner makes no such
showing. Accordingly, the Court DENIES a certificate of appealability.
Finally, the Court concludes that an appeal from this decision
cannot be taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the
Court DENIES Petitioner leave to proceed in forma pauperis on appeal.
This case is closed.
IT IS SO ORDERED.
Dated: March 25, 2025 s/Judith E. Levy
Ann Arbor, Michigan JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 25, 2025.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
44Case Information
- Court
- E.D. Mich.
- Decision Date
- March 25, 2025
- Status
- Precedential