Watson v. Nagy

                 UNITED STATES DISTRICT COURT                            
                  EASTERN DISTRICT OF MICHIGAN                           
                       SOUTHERN DIVISION                                 

ERIC JERMAINE WATSON,                                                     

    Petitioner,              Civil No. 2:20-CV-11062                     
                             HONORABLE NANCY G. EDMUNDS                  
v.                            UNITED STATES DISTRICT JUDGE                

NOAH NAGY,                                                                

    Respondent,                                                          
____________________________________/                                     

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS          
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO        
                   APPEAL IN FORMA PAUPERIS                              

    Eric Jermaine Watson, (“Petitioner”), confined at the Cooper Street Correctional 
Facility in Jackson, Michigan, filed a petition for writ of habeas corpus pursuant to 28 
U.S.C. § 2254.  In his pro se application, petitioner challenges his convictions for armed 
robbery,  M.C.L.A.  750.529;  felon  in  possession  of  a  firearm,  M.C.L.A.  750.224f; 
possession of a firearm in the commission of a felony, M.C.L.A. 750.227b; and being a 
fourth felony habitual offender, M.C.L.A. 769.12.  For the reasons that follow, the petition 
for writ of habeas corpus is DENIED.                                      

                        I. BACKGROUND                                    

    Petitioner was convicted following a jury trial in the Wayne County Circuit Court.  
    This Court recites verbatim the relevant facts relied upon by the Michigan Court of 
Appeals,  which  are  presumed  correct  on  habeas  review  pursuant  to  28  U.S.C.  § 
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):       
    During the early morning hours of July 1, 2016, the victim in this matter was 
    playing dice on a street corner with DaJuan Jones. The two ended up in a 
    disagreement, and the victim fled in fear. The victim fell while running, Jones 
    approached, and held the victim at gunpoint. At that moment, defendant and 
    Richard  James  Melton,  Jr.,  approached.  Jones  asked  defendant  if  he 
    should  “kill”  the  victim,  to  which  defendant  responded  not  to  shoot. 
    Defendant and Melton then went through the victim’s pockets while he was 
    still held at gunpoint. The victim reported that the three men took an LG K7 
    cellular telephone, $800 in cash, and some cigarettes from him, entered a 
    white Dodge Durango, and defendant drove them away. The victim called 
    911,  reported  that  he  was  robbed,  and  described  the  aforementioned 
    vehicle. The police identified the white Durango near the scene of the 
    robbery, pulled it over, and discovered defendant driving with Melton in the 
    passenger  seat.  Jones  was  not  in  the  car.  There  were  six  cellular 
    telephones in the vehicle—one of which was an LG K7 model—and a      
    handgun holster, but no gun. Defendant was found with $1,228 in his  
    pockets.                                                             

    Later that same day, the victim identified Jones in a photographic lineup. 
    The following day, he identified defendant and Melton in a live lineup. The 
    victim testified at the preliminary examination on August 2, 2016, where 
    defendant and Melton were bound over on the aforementioned charges.  
    Following the preliminary examination, the victim became noncompliant 
    with the prosecution and police. 1  On October 3, 2016, defendant and 
    Melton were set to be tried together, and the prosecution moved to have the 
    victim’s preliminary examination testimony admitted as evidence, citing the 
    victim’s unavailability. The prosecution also alleged that defendant and 
    Melton had procured the victim’s absence from trial by bribing him. The 
    prosecution introduced jailhouse telephone calls of Melton, in which he 
    openly discussed paying the victim money so that he would not come to 
    trial. The trial court held that certain evidence was admissible as against 
    Melton under the forfeiture-by-wrongdoing rule, MRE 804(b)(6). The trial 
    court refused to attribute Melton’s wrongdoing to defendant, disagreeing 
    with the prosecution’s theory that Melton was acting on behalf of defendant. 
    The  trial  court,  therefore,  ordered  that  defendant  and  Melton  be  tried 
    separately, and adjourned defendant’s trial until December 15, 2016. 2 

    Before  defendant’s  rescheduled  trial  date,  the  prosecution  once  again 
    moved the trial court to find that the forfeiture-by-wrongdoing rule applied to 
    defendant. The trial court again refused, but did find that the victim was 
    unavailable for trial, and that his preliminary examination testimony was 
    admissible. The trial court also admitted the victim’s 911 call recording and 
    his identification of defendant. After two days of trial, the jury convicted 
    defendant of all three charges. At sentencing, the victim came forward, and 

1 The charges against Jones, who held the victim at gunpoint, were dismissed during his later preliminary 
examination when the victim did not appear to testify. (Footnote original).  
2 Melton later pleaded guilty to armed robbery, felon-in-possession, and felony-firearm. He has not 
appealed his pleas, and is not a party to this appeal. (Footnote original).  
    asserted  that  he  wished  to  recant  his  testimony  from  the  preliminary 
    examination. According to defendant, the victim intended to testify that there 
    was no gun present during the robbery. The trial court appointed counsel 
    for the victim so that he would understand the potential for perjury charges, 
    and  adjourned  defendant’s  sentencing.  During  the  second  sentencing 
    hearing, the victim and his counsel informed the trial court that the victim no 
    longer wished to recant, and if called to testify, he would exercise his Fifth 
    Amendment right against self-incrimination. Defendant was sentenced, and 
    this appeal followed.                                                

    Pertinent to this appeal, defendant moved this Court to remand his case to 
    the trial court to hear his motion for a new trial on the basis of newly-
    discovered  evidence.  The  newly-discovered  evidence  was  the  victim’s 
    medical records, which revealed a history of mental health issues, and an 
    affidavit from the victim recanting his previous testimony that a gun was 
    present at the robbery. The trial court found that the newly-discovered 
    evidence was not credible, and would not have changed the outcome of 
    trial. Thus, the court denied defendant’s motion. The case is now before us 
    for summary consideration.                                           

    People v. Watson, No. 338110, 2019 WL 3315168, at *1–2 (Mich. Ct. App. July 
23, 2019), lv. den. 505 Mich. 976, 937 N.W.2d 660 (2020).                 

    Petitioner seeks a writ of habeas corpus on the following grounds:   
    I. The trial court reversibly erred, over a defense objection, in holding that 
    complainant Jermaine Page was unavailable to testify in person at this trial, 
    and that the prosecution thus could read his prior recorded testimony from 
    the preliminary examination to the jury, as the prosecution failed to present 
    a sufficient demonstration of an exercise of due diligence to insure Mr. 
    Page’s  appearance,  thus  denying  Mr.  Watson’s  constitutional  right  to 
    confront his accuser.                                                

    II. The complainant’s documented history of bipolar disorder and delusional 
    thinking and his repeated assertions that he lied when he said a gun was 
    used to rob him is newly discovered evidence warranting retrial.     

    III. Mr. Watson’s conviction for felon in possession of a firearm should be 
    vacated, and the charge dismissed, because the prosecution presented 
    constitutionally  insufficient  evidence  that  he  aided  and  abetted  the 
    commission of that offense.                                          

    IV. The trial court reversibly erred in denying the jury’s request to rehear the 
    testimony of the complainant, where that testimony was readily available 
    since it was presented as prior recorded testimony from the preliminary 
    examination, and the testimony of the complainant was critical in the context 
    of this case; in the alternative, Mr. Watson was denied his Sixth Amendment 
    right to the effective assistance of counsel due to his trial attorney’s failure 
    to object to the court’s ruling.                                     

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

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

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

    A decision of a state court is “contrary to” clearly established federal law if the state 
court arrives at a conclusion opposite to that reached by the Supreme Court on a question 
of law or if the state court decides a case differently than the Supreme Court has on a set 
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).  An 
“unreasonable application” occurs when “a state court decision unreasonably applies the 
law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409.  A federal habeas 
court may not “issue the writ simply because that court concludes in its independent 
judgment that the relevant state-court decision applied clearly established federal law 
erroneously or incorrectly.” Id. at 410-11.  “[A] state court’s determination that a claim 
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).          
                          III. Discussion                                
    A. Claim # 1.  The unavailable witness/Confrontation Clause claim.   
    Petitioner first claims that his Sixth Amendment right of confrontation was violated 

when  the  judge  permitted  the  prosecution  to  introduce  the  victim’s  preliminary 
examination  testimony  after  concluding  that  the  victim  was  unavailable  to  testify  at 
petitioner’s trial.  Petitioner further argues that the prosecution failed to use due diligence 
to secure the victim’s presence at trial.                                 
    An  exception  to  the  confrontation  requirement  exists  where  a  witness  is 
unavailable  and  gave  testimony  at  previous  judicial  proceedings  against  the  same 
defendant which was subject to cross-examination.  However, this exception does not 
apply “unless the prosecutorial authorities have made a good-faith effort to obtain his 
presence at trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968).  When prosecutors seek 

to admit a non-testifying witness’ preliminary hearing testimony, the Confrontation Clause 
requires two things: first, the prosecution must establish that the declarant is “unavailable” 
by showing that prosecutorial authorities have made a good-faith effort to obtain the 
declarant’s presence at trial, and, second, to satisfy the “indicia of reliability” requirement, 
the prosecution must demonstrate that the defendant had an adequate opportunity to 
cross-examine the declarant at the preliminary examination. See Pillette v. Berghuis, 630 
F. Supp. 2d 791, 804 (E.D. Mich. 2009); rev’d on other grds, 408 F. App’x 873 (6th Cir. 
2010)(citing McCandless v. Vaughn, 172 F. 3d 255, 265 (3rd Cir. 1999)).  The lengths to 
which the prosecution must go to produce a witness, such that the admission of the 
witness’ prior, confronted testimony at subsequent trial does not violate the Confrontation 
Clause, is a question of reasonableness. Hardy v. Cross, 565 U.S. 65, 70 (2011)(quoting 
Ohio v. Roberts, 448 U.S. 56, 74 (1980)).  The Supreme Court noted that “when a witness 
disappears  before  trial,  it  is  always  possible  to  think  of  additional  steps  that  the 
prosecution might have taken to secure the witness’ presence, but the Sixth Amendment 

does not require the prosecution to exhaust every avenue of inquiry, no matter how 
unpromising.” Id., at 71-72.  Significantly, “the deferential standard of review set out in 28 
U.S.C. § 2254(d) does not permit a federal court to overturn a state court’s decision on 
the question of unavailability merely because the federal court identifies additional steps 
that might have been taken.” Id. at 72.                                   
    The Michigan Court of Appeals rejected petitioner’s claim:           
    Defendant argues on appeal that the trial court erred in determining that the 
    prosecution exercised due diligence and a good-faith effort in its attempts 
    to ensure that the victim was at trial. The issue of the victim’s unavailability 
    first arose when defendant and Melton were set to be tried together on 
    October 3, 2016. At that hearing, the prosecution provided the following 
    statement regarding the efforts to locate the victim:                

      I had filed recently a motion to introduce the statement of [the victim]. 
      [He] is the only victim, and only civilian witness in this case. He was 
      the victim of an alleged armed robbery that took place on July 1st of 
      this year.                                                         

      My Officer in Charge, Sergeant Dasumo Mitchell, is currently the   
      Officer  in  Charge  in  a  homicide  case  this  morning  [in  another] 
      courtroom, otherwise he would be here today. He had made efforts to 
      locate [the victim] throughout this process. [The victim] did provide 
      testimony at the Preliminary Examination, however recent efforts to 
      location [sic] [him] have failed.                                  

      On Friday, this past Friday, on the 30th of September, the People had 
      this court issue a witness detainer for [the victim] to locate him over 
 the weekend. Efforts by the Officer in Charge, Sergeant Dasumo     
 Mitchell, who I believe Detective Dawson who just walked in the    
 courtroom today, was also present during the attempted apprehension 
 of [the victim]. They went to his known address and he was not there. 

 In addition, Judge, the People have had contact with the grandfather 
 [ ] of [the victim]. I spoke to [the victim’s grandfather] on September 
 29th. He indicated to me that his grandson was not going to come to 
 court, that he had had a conversation with him the previous day in 
 which [the victim] had indicated that he was paid some money to not 
 appear in court.                                                   

 In addition to all of that, Your Honor, the People have listened to 
 numerous jail calls from both Defendants, Eric Watson and Richard  
 Melton. Over the course of time spanning from July of this year, shortly 
 after the incident, all the way to, I believe it was the end of September 
 of  this  year,  there  were  approximately  eleven  phone  calls  that 
 demonstrates an active participation to secure the absence of [the 
 victim] in this trial.                                             

 I have laid out in explicit detail all of the phone calls and the dates of 
 those or those times in which Mr. Melton placed all of those calls, but 
 references not only [Jones] but somebody by the name of Chedda, C- 
 h-e-d-d-a, which through jail calls have been interpreted to be the 
 person identified as [defendant] Eric Watson.                      

 Also,  Judge,  the  way  that  these  jail  calls  have  played  out  is  a 
 systematic and active scheme to try to secure the absence of [the  
 victim]. And today, as of 9:15 or 9:16, [the victim] is nowhere to be 
 found.                                                             

 I believe Sergeant Dotson can attest to that, and his efforts as well. 
 We have clear information, Judge, that [the victim] was, in fact, paid, 
 that there’s an active participation to try to pay by this—by Mr. Melton, 
 as well as through incorporation, Mr. Watson ....                  

Following those statements by the prosecution, Officer Danny Dotson was 
called to testify regarding the efforts of the police to locate the victim. He 
stated that he and Officer Mitchell went to the victim’s house and searched 
local hotels and motels, where they suspected the victim might be staying. 
    The prosecution further argued that the witness was unavailable because 
    of the jailhouse telephone calls made by Melton. Those telephone calls, 
    which were transcribed in various briefs and the content of which is not 
    challenged, clearly show that Melton was in contact with several people who 
    conspired to pay the victim money so that he would not come to trial. 

    On the first day of defendant’s trial, the prosecution once again moved the 
    trial court to admit the victim’s preliminary examination testimony based on 
    his  unavailability,  and  attempted  to  connect  defendant  to  Melton’s 
    procurement of the victim’s unavailability by reading defendant’s jailhouse 
    telephone  calls  into  the  record,  the  content  of  which  has  not  been 
    challenged. In those calls, defendant and an unknown caller have vague 
    conversations  about  ensuring  that  a  “situation”  is  “straight.”  Defendant 
    argued, and the trial court agreed, that those conversations by defendant 
    were not specific enough to connect him to Melton’s behaviors. Therefore, 
    the  trial  court  held  that  the  victim’s  absence  was  not  attributable  to 
    defendant,  so  the  forfeiture-by-wrongdoing  rule,  MRE  804(b)(6),  was 
    inapplicable.                                                        

    The trial court did, however, determine that the victim was unavailable under 
    MRE  804(a)(5),  and  requested  that  the  prosecution  update  the  record 
    regarding the continuing location efforts. The prosecution informed the trial 
    court that Officer Mitchell had continued to search for the victim, without 
    luck, since the previous date of trial, two months earlier. Following the 
    determination by the trial court that the victim was unavailable, defendant 
    objected on the ground that the victim was not at trial because he was a liar, 
    not because he was paid off by Melton. Defendant did not, in any manner, 
    challenge the prosecution’s recitation of the efforts made to locate the 
    victim.                                                              

    People v. Watson, 2019 WL 3315168, at * 3–5.                         
    “A good-faith effort...is not an ends-of-the-earth effort, and the lengths to which the 
prosecution  must  go  to  obtain  a  witness  generally  amount  to  a  question  of 
reasonableness.” United States v. Cheung, 350 F. App’x. 19, 23 (6th Cir. 2009)(internal 
quotation marks, citations, and alterations omitted).  The Court concludes, based on the 
steps taken in this case, that the prosecution and law enforcement made a good faith 
effort to locate the victim and present him at trial. See Winn v. Renico, 175 F. App’x. 728, 
739 (6th Cir. 2006); See also Pillette, 630 F. Supp. 2d at 804.  In addition, it is obvious 
from the record that the victim was unavailable because he refused to testify after being 
offered money from the co-defendant. See Mayes v. Sowders, 621 F.2d 850, 856 (6th 
Cir. 1980) (stating that “[a] witness is not available for full and effective cross-examination 
when he or she refuses to testify.”).  Although there may have been additional steps that 

the trial judge or the prosecutor or the police could have taken to secure the victim’s 
presence, under the AEDPA’s deferential standard of review, the Michigan Court of 
Appeals’  rejection  of  petitioner’s  claim  was  a  reasonable  determination,  precluding 
habeas relief.                                                            
    In addition, the victim’s former preliminary examination testimony bore adequate 
indicia of reliability because it was made under oath, petitioner and his counsel were 
present, and the witness was subject to cross-examination. California v. Green, 399 U.S. 
149, 165-66 (1970); Pillette, 630 F. Supp. 2d at 804; Eastham v. Johnson, 338 F. Supp. 
1278, 1280 (E.D. Mich. 1972).  The admission of the preliminary examination testimony 

at Petitioner’s trial did not violate his Sixth Amendment right to confrontation. See Glenn 
v. Dallman, 635 F. 2d 1183, 1187 (6th Cir. 1980); Havey v. Kropp, 458 F. 2d 1054, 1057 
(6th Cir. 1972); Pillette, 630 F. Supp. 2d at 804-05.  Petitioner is not entitled to habeas 
relief on his first claim.                                                
    B. Claim # 2.  The newly discovered evidence/actual innocence claim. 
    Petitioner argues he is entitled to habeas relief because of newly discovered 
evidence in the form of the victim’s post-trial recantation and the discovery of the victim’s 
mental health records.                                                    
    To the extent that petitioner seeks habeas relief based on his actual innocence, he 
would not be entitled to the issuance of a writ.  In Herrera v. Collins, 506 U.S. 390, 400 
(1993),  the  Supreme  Court  held  that  claims  of  actual  innocence  based  on  newly 
discovered evidence fail to state a claim for federal habeas relief absent an independent 
constitutional violation occurring in the underlying state criminal proceeding.  Federal 

habeas  courts  sit  to  ensure  that  individuals  are  not  imprisoned  in  violation  of  the 
constitution, not to correct errors of fact. Id., See also McQuiggin v. Perkins, 569 U.S. 
383, 392 (2013)(“We have not resolved whether a prisoner may be entitled to habeas 
relief based on a freestanding claim of actual innocence”).  Freestanding claims of actual 
innocence  are  thus  not  cognizable  on  federal  habeas  review,  absent  independent 
allegations of constitutional error at trial. See Cress v. Palmer, 484 F.3d at 854-55 
(collecting cases).                                                       
    Petitioner is not entitled to habeas relief on his claim that the victim recanted his 
testimony from the preliminary examination.                               

    The Michigan Court of Appeals rejected the claim:                    
    The  trial  court  specifically  found  the  victim’s  recantation  to  be  “highly 
    suspect and untrustworthy.” In making that decision, the trial court first 
    noted the fact that an affidavit of a witness purporting to recant his previous 
    testimony  typically  is  given  little  weight.  See  id.  The  trial  court  also 
    referenced  that  between  the  time  the  victim  gave  his  preliminary 
    examination  testimony  and  the  time  of  his  recantation,  a  very  specific 
    reason to recant had arisen. Specifically, the trial court noted that the victim 
    was paid money to avoid appearing at trial. The trial court considered that 
    the  victim  likely  had  the  same  reason  for  recanting  his  testimony. 
    Summarizing, the trial court stated, “[a]ny trier of fact could see through 
    common sense and reason that an individual would recant after being  
    pressured and bribed.”                                               

    People v. Watson, 2019 WL 3315168, at * 19.                          
    In considering federal habeas petitions, a federal district court must presume the 
correctness of state court factual determinations, and a habeas petitioner may rebut this 
presumption only with clear and convincing evidence. Bailey v. Mitchell, 271 F. 3d 652, 
656 (6th Cir. 2001); 28 U.S.C. § 2254(e)(1).  A state court’s factual determination that a 
prosecution witness’ recantation and supporting affidavit is not credible is entitled to the 

presumption of correctness in a federal habeas proceeding. See Richardson v. Lord, 7 F. 
App’x. 1, 2 (2nd Cir. 2001); See also Poe v. Rapelje, 5:12–CV–11390; 2014 WL 4715460, 
* 2 (E.D. Mich. Sept. 22, 2014).                                          
    A long-delayed affidavit like the victim’s which seeks to exonerate a criminal 
defendant is “treated with a fair degree of skepticism.” Herrera v. Collins, 506 U.S. at 423.  
Recanting affidavits and witnesses are viewed with “extreme suspicion.” United States v. 
Chambers, 944 F. 2d 1253, 1264 (6th Cir. 1991); superseded in part on other grounds by 
U.S.S.G. § 2D1.5(a); See also Byrd v. Collins, 209 F. 3d 486, 508, n. 16 (6th Cir. 2000).  
“Where the circumstances surrounding the recantation suggest it is the result of coercion, 

bribery, or misdealing the [trial] court is justified in disregarding it.” United States v. 
Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973).  The trial judge concluded that the victim’s 
alleged recantation was suspect, in light of the fact that he had been offered money from 
the co-defendant not to appear at trial.  The state trial judge’s ruling was a reasonable 
determination of the facts and the law.  Petitioner is not entitled to relief on this claim. 
    Petitioner’s related claim involving the discovery of the victim’s mental health 
records would also not entitle him to habeas relief.  The mental health records did not 
exonerate petitioner but at most could have been used to impeach the victim’s testimony. 
Impeachment  evidence  does  not  provide  sufficient  evidence  of  actual  innocence  to 
support a free-standing innocence claim. See Calderon v. Thompson, 523 U.S. 538, 563 
(1998); Sawyer v. Whitley, 505 U.S. 333, 349 (1992).  Petitioner is not entitled to relief on 
his second claim.                                                         
    C. Claim # 3.  The sufficiency of evidence claim.                    
    Petitioner next claims that there was insufficient evidence to support his conviction 

for  felon  in  possession  of  a  firearm,  because  there  was  no  evidence  he  actually 
possessed a firearm.                                                      
    It is beyond question that “the Due Process Clause protects the accused against 
conviction except upon proof beyond a reasonable doubt of every fact necessary to 
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970).  
But the critical inquiry on review of the sufficiency of the evidence to support a criminal 
conviction is, “whether the record evidence could reasonably support a finding of guilt 
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979).  This inquiry, 
however, does not require a court to “ask itself whether it believes that the evidence at 

the trial established guilt beyond a reasonable doubt.”  Instead, the relevant question is 
whether, after viewing the evidence in the light most favorable to the prosecution, any 
rational trier of fact could have found the essential elements of the crime beyond a 
reasonable doubt. Id. at 318-19 (internal citation and footnote omitted)(emphasis in the 
original).                                                                
    A federal habeas court may not overturn a state court decision that rejects a 
sufficiency of the evidence claim merely because the federal court disagrees with the 
state court’s resolution of that claim.  Instead, a federal court may grant habeas relief only 
if the state court decision was an objectively unreasonable application of the Jackson 
standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011).  “Because rational people can 
sometimes disagree, the inevitable consequence of this settled law is that judges will 
sometimes encounter convictions that they believe to be mistaken, but that they must 
nonetheless uphold.” Id.  Indeed, for a federal habeas court reviewing a state court 
conviction, “the only question under Jackson is whether that finding was so insupportable 

as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 
(2012).  A state court’s determination that the evidence does not fall below that threshold 
is entitled to “considerable deference under [the] AEDPA.” Id.            
    The elements of felon in possession of a firearm in Michigan are: (1) that the 
defendant was convicted of a felony, (2) that the defendant possessed a firearm, and (3) 
that at the time of possession less than three or five years, depending on the underlying 
felony, has passed since the defendant had completed his term of incarceration, satisfied 
all conditions of probation and parole, and paid all fines. Parker v. Renico, 506 F. 3d 444, 
448 (6th Cir. 2007). Under Michigan law, possession of a firearm can be either actual or 

constructive. Id. (citing People v. Hill, 433 Mich. 464; 446 N.W.2d 140, 143 (1989)).  Under 
both federal and Michigan law, “a person has constructive possession if there is proximity 
to the [weapon] together with indicia of control.” Id.  “Put another way, a defendant has 
constructive possession of a firearm if the location of the weapon is known and it is 
reasonably accessible to the defendant.” Parker, 506 F. 3d at 448, n. 3 (quoting Hill, 446 
N.W. at 143).  “As applied, ‘reasonable access’ is best calibrated to instances where a 
defendant commits a crime emboldened by a firearm available, but not in hand.” Id.  The 
Sixth Circuit notes that “[c]onstructive possession exists when a person does not have 
actual possession but instead knowingly has the power and the intention at a given time 
to exercise dominion and control over an object, either directly or through others.” Id. at 
449 (quoting United States v. Craven, 478 F. 2d 1329, 1333 (6th Cir. 1973), abrogated 
on other grounds by Scarborough v. United States, 431 U.S. 563 (1977)).  Michigan law 
also recognizes joint possession of a firearm, which allows for a conviction of felon 
inpossession of a firearm under “the theory of joint firearm possession if the evidence 

suggests two or more defendants acting in concert.” People v. Hill, 433 Mich. at 471.  
    The Michigan Court of Appeals rejected petitioner’s claim, finding that the evidence 
supported a conviction for felon-in-possession under a joint possession theory: 
    The prosecution presented evidence that Jones chased down the victim and 
    held him at gunpoint while defendant and Melton went through the victim’s 
    pockets, eventually taking cigarettes, a cellular telephone, and $800 in 
    cash. The victim testified that Jones asked defendant if he should “kill” the 
    victim, to which defendant answered not to shoot. Later, when defendant 
    was pulled over by police in the white Durango—in which the victim saw 
    defendant drive away from the scene of the robbery—there was a handgun 
    holster in the vehicle.                                              

    On  the  basis  of  those  facts,  a  reasonable  jury  was  well-supported  in 
    inferring that defendant and Jones were “acting in concert,” and thus, jointly 
    possessed the firearm that Jones held. It was the jury’s role “to determine 
    what inferences may be fairly drawn from the evidence and to determine 
    the weight to be accorded those inferences.” Here, the jury inferred from the 
    foregoing evidence that defendant and Jones were working together—   
    Jones held the gun while defendant relieved the victim of his property and 
    cash. Consequently, there was sufficient evidence for the jury to find that 
    defendant jointly possessed the firearm with Jones, and thus, was guilty of 
    committing  felon-in-possession.  The  prosecution’s  failure  to  present 
    evidence that Jones committed felon-in-possession was irrelevant because, 
    for the purposes of that crime, defendant did not aid and abet Jones, but 
    rather, acted in concert with him, and was also the principal under the 
    concept of joint possession.                                         

    People v. Watson, 2019 WL 3315168, at * 9 (internal citations omitted).  
    In the present case, the evidence was sufficient for a rational trier of fact to 
conclude that petitioner was acting in concert with co-defendant Jones to rob the victim 
at gunpoint, thus, the Michigan Court of Appeals reasonably concluded that the evidence 
supported petitioner’s conviction for felon in possession of a firearm under a theory that 
petitioner and his co-defendant jointly possessed the firearm, with the co-defendant  
retaining  actual  possession  of  the  firearm  and  petitioner  retaining  constructive 
possession. See Hopson v. Horton, 838 F. App’x. 147, 155 (6th Cir. 2020).  Petitioner is 

not entitled to relief on his third claim.                                
    D. Claim # 4. The readback of testimony claim.                       
    Petitioner lastly claims that the trial judge erred in refusing to read back the victim’s 
testimony to the jury.  In the alternative, he argues that trial counsel was ineffective in 
failing to object to the judge’s refusal to read back the testimony.      
    There is no federal constitutional law which requires that a jury be provided with a 
witness’ testimony. See Bradley v. Birkett, 192 F. App’x. 468, 477 (6th Cir. 2006).  The 
reason for this is that there is no U.S. Supreme Court decision that requires judges to re-
read testimony of witnesses or to provide transcripts of their testimony to jurors upon their 

request. See Friday v. Straub, 175 F. Supp. 2d 933, 939 (E.D. Mich. 2001).  A habeas 
petitioner’s claim that a state trial court violated his right to a fair trial by refusing to grant 
a jury request for transcripts is therefore not cognizable in a habeas proceeding. Bradley, 
192 F. App’x. at 477; Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D. Mich. 1985).  Given 
the lack of holdings by the Supreme Court on the issue of whether a state trial judge is 
required to re-read the testimony of witnesses or provide transcripts of their testimony to 
jurors upon their request, the Michigan Court of Appeals’ rejection of petitioner’s claim 
was not an unreasonable application of clearly established federal law. See Wright v. Van 
Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 ( 2006).  
    Petitioner in the alternative argues that trial counsel was ineffective for failing to 
object to the trial judge’s refusal to read back the victim’s testimony to the jurors. 
    To prevail on his ineffective assistance of counsel claim, petitioner must show that 
the state court’s conclusion regarding this claim was contrary to, or an unreasonable 
application  of,  Strickland  v.  Washington,  466  U.S.  668  (1984).  See  Knowles  v. 

Mirzayance, 556 U.S. 111, 123 (2009).  Strickland established a two-prong test for claims 
of  ineffective  assistance  of  counsel:  the  petitioner  must  show  (1)  that  counsel’s 
performance was deficient, and (2) that the deficient performance prejudiced the defense. 
Strickland, 466 U.S. at 687.                                              
    Strickland states that “counsel is strongly presumed to have rendered adequate 
assistance and made all significant decisions in the exercise of reasonable professional 
judgment.” Strickland, 466 U.S. at 690.  In the present case, petitioner’s ineffective 
assistance of counsel claim fails, because trial counsel, as a matter of strategy, may have 
preferred that the jury not re-hear the victim’s damaging testimony. See Bradley, 192 F. 

App’x. at 477. Moreover, in light of the fact that the trial court judge indicated that he 
chose not to read back the victim’s testimony, petitioner is unable to show that there would 
have been a different outcome in the trial had counsel objected to the judge’s ruling 
concerning the re-reading of the victim’s testimony. Id.  Petitioner is not entitled to relief 
on his fourth claim.                                                      
                         IV.  Conclusion                                 
    The petition is denied with prejudice.  The Court denies a certificate of appealability 
to petitioner.  In order to obtain a certificate of appealability, a prisoner must make a 
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).  To 
demonstrate this denial, the applicant is required to show that reasonable jurists could 
debate whether, or agree that, the petition should have been resolved in a different 
manner, or that the issues presented were adequate to deserve encouragement to 
proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).  “The district court must 
issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 
    For the reasons stated in this opinion, the Court will deny petitioner a certificate of 
appealability because he has failed to make a substantial showing of the denial of a 
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 
2001).  The Court will also deny petitioner leave to appeal in forma pauperis, because the 
appeal would be frivolous. Id.                                            
                           V. ORDER                                      
    Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas 
corpus is DENIED WITH PREJUDICE.                                          

         IT IS FURTHER ORDERED That a certificate of appealability is DENIED. 
         IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal 
in forma pauperis.                                                        

                             s/ Nancy G. Edmunds__________________       
                             HON. NANCY G. EDMUNDS                       
                             UNITED STATES DISTRICT COURT JUDGE          
Dated:  October 7, 2021