Wood v. Nagy

E.D. Mich.8/3/2020

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[[COURTLISTENER_SUBOPINION {"id":"10214518","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALAN C. WOOD,

Petitioner, Case No. 4:18-cv-12673
Hon. Matthew F. Leitman
v.

NOAH NAGY,

Respondent.
__________________________________________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS (ECF No. 1), (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING LEAVE
TO APPEAL IN FORMA PAUPERIS

Petitioner Alan C. Wood is a state prisoner in the custody of the Michigan
Department of Corrections. On January 17, 2013, a jury in the Oakland County
Circuit Court convicted Wood of first-degree murder and several lesser offenses.
The state trial court then sentenced Wood to a mandatory life sentence on the murder
conviction and lesser terms for the other offenses.
On August 27, 2018, Wood filed a petition for a writ of habeas corpus in this
Court pursuant to
28 U.S.C. § 2254
. (See Pet., ECF No. 1.) The petition raises
twenty claims. The Court has carefully reviewed those claims, and for the reasons
explained below, it concludes that none of them merit federal habeas relief. The
Court therefore DENIES the petition.
I
The charges against Wood arose from the robbery-murder of an elderly

woman in her home. At Wood’s jury trial, Tonia Watson, a woman with whom
Wood lived, testified that during the period preceding the murder, she and Wood
were homeless and living out of motels as they struggled to obtain money for food

and drugs. Watson testified that she and Wood had committed a series of thefts prior
to the instant offense to support their drug habits.
Wood and Watson met the eighty-year-old victim, Nancy Dailey, in
November of 2011, when Dailey paid them $40 to rake leaves in her yard. According

to Watson, the two decided to rob Dailey on November 20, 2011, after they checked
out of a motel because they were out of money.
That night they broke into Dailey’s house. Watson testified that Wood brutally

beat Dailey while Watson gathered some of her valuables. During the robbery,
Watson saw Wood drag Dailey into her bedroom while holding a knife. After he
emerged, he told Watson that he had never slit someone’s throat before. Dailey’s
body was found in her house days later with her throat slashed.

Watson then testified that after she and Wood left Dailey’s home, they
attempted to use Dailey’s credit cards. Watson also described their movements and
where they disposed of Daily’s property. With Watson’s assistance, police officers

were able to recover the items described by Watson and find other evidence
corroborating her account. Among the items recovered was a knife that Watson said
Wood had attempted to conceal in the median of a local highway. Watson believed

that the knife was the murder weapon.
Several of Dailey’s neighbors also testified at trial. One neighbor testified
that she saw Wood raking Daily’s leaves earlier in November. A second neighbor

testified that, on the night of the murder, she saw an unfamiliar man walking past
Dailey’s house wearing a dark hooded sweatshirt and dark pants. Watson confirmed
that Wood was wearing clothes consistent with that description on the night of the
murder. Finally, a third neighbor testified that he saw Wood in an alley near Dailey’s

house on the evening of the murder.
In addition, the prosecutor introduced Y-STR DNA evidence. That evidence
showed that Y-STR DNA taken from under Dailey’s fingernails and on her scarf had

the same haplotype as Wood’s DNA. A haplotype match is too broad to identify a
particular individual, but the prosecutor’s expert testified at trial that only 1 in 1,923
Caucasian males shared that haplotype.
The prosecutor also offered other-acts evidence to show Wood’s common

plan or scheme of stealing from homes in which he worked. For example, Wood’s
former landlady testified that Wood stole her purse in October of 2011. Further
testimony was presented indicating that when Wood worked in the home of two

disabled women in October of 2010, he stole from them. Finally, evidence was
offered to show that Wood stole marijuana, knives, and a gun from another home in
which he worked in September of 2011.1 The jury ultimately convicted Wood of

first-degree murder and several lesser charges.
Following sentencing, Wood filed a claim of appeal in the Michigan Court of
Appeals. His first appointed appellate attorney filed a brief on appeal that raised

what now form Wood’s first four habeas claims. Wood moved for the appointment
of a second attorney, and that attorney filed a supplemental brief that raised what
now form Wood’s fifth and sixth habeas claims. Wood also filed his own brief that
raised what now form his seventh through tenth habeas claims. The Michigan Court

of Appeals rejected all of the claims and affirmed Wood’s convictions in a published
decision. See People v. Wood,
862 N.W.2d 7
(Mich. Ct. App. 2014). Wood then
filed a pro se application for leave to appeal in the Michigan Supreme Court, raising

the same claims that were raised in the Michigan Court of Appeals. The Michigan
Supreme Court denied leave to appeal. See People v. Wood,
871 N.W.2d 154
(Mich.
2015) (Table).
Wood thereafter returned to the state trial court and filed a motion for relief

from judgment. In that motion, Wood raised what now form his eleventh through
twentieth habeas claims. The trial court denied the motion for relief from judgment

1 The Michigan Court of Appeals’ opinion affirming Wood’s convictions contains a
more detailed summary of the strong evidence presented at trial indicating Wood’s
guilt. See People v. Wood,
862 N.W.2d 7, 11-16
(Mich. Ct. App. 2014).
on the basis that Wood had failed to demonstrate “good cause” or “actual prejudice”
under Mich. Ct. R. 6.508(D)(3) for failing to have raised the claims on direct review.

(See State Ct. Order, ECF No. 9-20.) Wood then filed an application for leave to
appeal trial court’s decision in the Michigan Court of Appeals. That court denied the
application “for failure to establish that the trial court erred in denying the motion

for relief from judgment.” (ECF No. 9-21.) Wood applied for leave to appeal that
decision in the Michigan Supreme Court, but that court denied relief with a citation
to Michigan Court Rule 6.508(D). See People v. Wood,
915 N.W.2d 364
(Mich.
2018) (Table).

II
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires federal courts to uphold state court adjudications on the merits unless the

state court’s decision (1) “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) “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).

“The question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473
(2007).
III
A

Several of Wood’s claims arise out of the state trial court’s alleged erroneous
admission of evidence under state law. More specifically, Wood argues that the trial
court erroneously admitted:

 The Y-STR DNA evidence (habeas claims one and four);
 “Other acts” evidence under Michigan Rule of Evidence 404(b) (habeas claim
two);
 Lay testimony from a police officer under Michigan Rule of Evidence 701
that the knife found partially stuck into a highway median was the murder
weapon (habeas claim seven); and
 Certain evidence that lacked a sufficient chain of custody (habeas claim nine).

Each of these claims raise questions of state law, and none are cognizable on
federal habeas review. Simply put, “federal habeas corpus relief does not lie for
errors of state law.” Lewis v. Jeffers,
497 U.S. 764, 780
(1990). “In conducting
habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S.

62, 68
(1991). Thus, because Wood challenges the admission of this evidence under
Michigan law, he is not entitled to federal habeas relief on these claims. Nor has
Wood shown that that the trial court’s evidentiary rulings were “so egregious” that
they violated his federal due process rights and rendered his trial fundamentally
unfair. McAdoo v. Elo,
365 F.3d 487, 494
(6th Cir. 2004) (explaining that only when
an evidentiary ruling is “so egregious that it results in a denial of fundamental

fairness” may it violate federal due process rights and warrant federal habeas relief).
For all of these reasons, Wood is not entitled to federal habeas relief on these
evidentiary claims because they are not cognizable in this action. See, e.g., Byrd v.

Collins,
209 F.3d 486, 528
(6th Cir. 2000) (citing Marshall v. Lonberger,
459 U.S.
422
, 438 n. 6 (1983) (“[T]he Due Process Clause does not permit the federal courts
to engage in a finely tuned review of the wisdom of state evidentiary rules.”)).
B

Wood next claims that the prosecutor committed misconduct when the
prosecutor allegedly vouched for the credibility of Watson during the prosecutor’s
opening statement. Wood raised this claim on direct review, and the Michigan Court

of Appeals rejected it:
Defendant next argues that the prosecutor engaged in
misconduct in her opening statement by vouching for the
credibility of Watson and that the trial court erred by not
granting his motion for a mistrial. We disagree. This Court
“review[s] claims of prosecutorial misconduct case by
case ... to determine whether the defendant received a fair
and impartial trial.” People v. Watson,
245 Mich.App.
572, 586
,
629 N.W.2d 411
(2001). We review for an abuse
of discretion a trial court's decision regarding a motion for
a mistrial. People v. Schaw,
288 Mich.App. 231, 236
,
791
N.W.2d 743
(2010).
A prosecutor may not vouch for the credibility of his or
her witnesses “to the effect that [the prosecutor] has some
special knowledge concerning a witness'[s]
truthfulness.” People v. Bahoda,
448 Mich. 261, 276
,
531
N.W.2d 659
(1995). However, merely “ ‘[b]y calling a
witness who testifies pursuant to an agreement requiring
him to testify truthfully, the Government does not
insinuate possession of information not heard by the jury
and the prosecutor cannot be taken as having expressed his
personal opinion on a witness'[s] veracity.’ ”
Id.
(citation
omitted) (first alteration in original).

During opening statements, the prosecutor addressed
Watson's testimony as follows:

You are also going to hear from Tonia Watson in
this case. And I'm sure that the defendant is going
to do everything he can to make her look like a liar.
So be prepared for that.

She's going to testify as a witness for the
prosecution because aside from Nancy Dailey and
the defendant she's the only one that knows what
happened in that house that night.

Now you are going to hear about her role that she
played in the crimes that were committed because
like I said she was not completely innocent.

You're going to hear that she's a thief. You're going
to hear that her fingerprint was found on a jewelry
case, on a jewelry box that was found in Nancy
Dailey's bedroom on a dresser.

You're also going to hear that she was originally
charged not with first degree premeditated murder,
but she was charged with felony murder for the role
that she played in assisting and committing the
larceny that was the underlying offense for the
felony murder.
She was also charged with larceny in a building and
she was also charged with the financial transaction
device for the one that she attempted to use that card
that we know of.

You're going to hear that as a result of her coming
in this court testifying before you and it's
conditioned upon the prosecutor believing that she's
testifying truthfully she will get a reduced charge.
She will be pleading to second degree murder,
larceny in a building and financial transaction
device. She will serve a minimum—

Defense counsel objected at that point on the ground that
the prosecutor's comments constituted improper vouching
for the witness. The trial court reinstructed the jury that the
opening statements of attorneys were not evidence and
that the trial court would provide the jury with the
applicable law. Defendant moved for a mistrial on the
basis of the prosecutor's comments; the trial court denied
the motion.

Our review of the trial court record convinces us that the
prosecutor's reference to Watson's plea agreement did not
embody an inappropriate “‘suggest [ion] that the
government had some special knowledge, not known to
the jury, that the witness was testifying
truthfully.’” Bahoda,
448 Mich. at 276
,
531 N.W.2d 659
(citation omitted). Further, even if the prosecutor's
statements were improper, the trial court's instructions,
which emphasized that the prosecutor's opening statement
was not evidence and that the jury alone had the
responsibility to determine witness credibility, cured any
potential prejudice. People v. Unger,
278 Mich.App. 210,
235
,
749 N.W.2d 272
(2008) (observing that “[c]urative
instructions are sufficient to cure the prejudicial effect of
most inappropriate prosecutorial statements, and jurors are
presumed to follow their instructions”) (citations omitted).
Therefore, the trial court acted within its discretion by
denying defendant's motion for a mistrial. Schaw,
288
Mich.App. at 236
,
791 N.W.2d 743
.

Wood,
862 N.W.2d at 19-20
.
Wood has not shown that the Michigan Court of Appeals’ decision was
contrary to, or an unreasonable application of, clearly established federal law. A
prosecutor’s improper comments violate a criminal defendant’s constitutional rights
only if they “‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden v. Wainwright,
477 U.S. 168, 181
(1986) (quoting

Donnelly v. DeChristoforo,
416 U.S. 637, 643
(1974)). Here, Wood has not shown
that the prosecutor’s comments “so infected” his trial as to render it “unfair[].” Nor
has Wood shown that the prosecutor’s comments were based on “special

knowledge” known only to the prosecution. See United States v. Francis,
170 F.3d
546, 550
(6th Cir. 1999) (“[G]enerally, improper vouching involves either blunt
comments, or comments that imply that the prosecutor has special knowledge of
facts not in front of the jury or of the credibility and truthfulness of witnesses and

their testimony”) (internal citations omitted).
For all of these reasons, Wood is not entitled to federal habeas relief on this
claim.

C
Wood next asserts his confrontation rights under the Sixth Amendment were
violated when the prosecutor offered the preliminary examination testimony of one
of its DNA experts, Amy Altesleben, in lieu of live testimony. Wood raised this
claim on direct review. The Michigan Court of Appeals rejected it on the grounds

that (1) Altesleben was unavailable due to complications related to her pregnancy
and (2) Wood had a prior opportunity to cross-examine her at the preliminary
examination:

Defendant next argues that the trial court violated his right
to confront witnesses against him, as well as MRE
804(b)(1), by allowing the admission of Altesleben's
preliminary examination testimony. Defendant did not
object to the admission of this evidence; this issue is
therefore unpreserved and reviewed for plain error
affecting substantial rights. People v. Carines,
460 Mich.
750, 763, 774
,
597 N.W.2d 130
(1999).

We conclude that the trial court did not err by deeming
Altesleben unavailable to testify at trial. Further,
defendant enjoyed a prior, similar opportunity to cross-
examine Altesleben, and thus the trial court violated
neither the Confrontation Clauses, U.S. Const., Am. VI
and Const. 1963, art. 1, § 20, nor MRE 804(b)(1) by
allowing the reading of Altesleben's preliminary
examination testimony at trial. Defendant also has not
established that trial counsel was ineffective for failing to
object to the reading of Altesleben's prior testimony.

[….]

The prosecutor moved to admit at trial Altesleben's
preliminary examination testimony on the basis of a
doctor's order confining her to “bed rest as a result of
complications associated with her pregnancy....” The court
found that Altesleben was unavailable and admitted her
preliminary examination testimony. We conclude that the
trial court did not err by determining that Altesleben was
unavailable because of a “then existing physical ... illness
or infirmity.” MRE 804(a)(4). See Garland, 286
Mich.App. at 7,
777 N.W.2d 732
(holding that “[b]ased on
the evidence on the record showing that the victim was
experiencing a high-risk pregnancy, that she lived in
Virginia, and that she was unable to fly or travel to
Michigan to testify, the trial court did not clearly err by
determining that the victim was unavailable”).

Further, “MRE 804(b)(1) by its language permits
testimony from ‘the same or a different [prior] proceeding’
if the party against whom the testimony is *518 offered
had the opportunity and motive in the prior proceeding ‘to
develop the testimony by direct, cross, or redirect
examination’.” People v. Morris,
139 Mich.App. 550, 555
,
362 N.W.2d 830
(1984) (alteration in original). In this
case, defendant had ample opportunity to cross-examine
Altesleben during his and Watson's joint preliminary
examination. Altesleben testified at the preliminary
examination on the very charges for which defendant
stood trial. Defense counsel for both defendant and
Watson cross-examined Altesleben during the preliminary
examination; no indication exists that the district court
limited their opportunities to cross-examine Altesleben,
and the trial court admitted both cross-examinations at
defendant's jury trial. Consequently, the trial court did not
err by admitting the preliminary examination testimony
pursuant to MRE 804(b)(1). See People v. Meredith,
459
Mich. 62
, 66–67,
586 N.W.2d 538
(1998); Morris,
139
Mich.App. at 555
,
362 N.W.2d 830
. For the same reasons,
defendant was not denied his right to confront witnesses
against him. See California v. Green,
399 U.S. 149, 165
,
90 S.Ct. 1930
,
26 L.Ed.2d 489
(1970).

Wood,
862 N.W.2d at 25-26
.

Wood has not shown that the Michigan Court of Appeals’ decision was
contrary to, or an unreasonable application of, clearly established federal law. Out-
of-court statements that are testimonial in nature are barred by the Sixth Amendment
Confrontation Clause unless the witness is unavailable and the defendant has had a
prior opportunity to cross-examine the witness, regardless of whether such

statements are deemed reliable. See Crawford v. Washington,
541 U.S. 36
(2004).
Where a witness is unavailable, the prosecution must make a “a good-faith effort to
obtain [the witness’s] presence at trial.” Barber v. Page,
390 U.S. 719, 724-25
(1968); see also Hamilton v. Morgan,
474 F.3d 854, 858
(6th Cir. 2007).
Here, Altesleben was unavailable because she had a doctor’s order confining
her to bedrest as a result of complications surrounding her pregnancy. In addition,
Wood’s counsel had the opportunity to, and did in fact, conduct a thorough cross-

examination of Altesleben at the preliminary hearing. (See ECF No. 9-12,
PageID.767-776.) Under these circumstances, Wood has not shown that the
Michigan Court of Appeals unreasonably concluded that the admission of

Altesleben’s preliminary examination testimony did not violate his rights under the
Confrontation Clause.
For all of these reasons, Wood is not entitled to federal habeas relief on this
claim.

D
Wood next claims that the state trial court violated his due process rights when
it instructed the jury on what factors to consider in evaluating Watson’s testimony.
Wood raised this claim on direct review, and the Michigan Court of Appeals rejected
it:

Next, defendant argues that the trial court improperly
bolstered Watson's credibility with an improper jury
instruction. We disagree. In the first instance, defendant
waived any claim of error regarding the jury instructions
when his counsel affirmatively approved the
instructions. People v. Carter,
462 Mich. 206
, 208–209,
215,
612 N.W.2d 144
(2000). Further, the jury instructions
were not improper.

“A criminal defendant has the right to have a properly
instructed jury consider the evidence against him.” People
v. Rodriguez,
463 Mich. 466, 472
,
620 N.W.2d 13
(2000) (quotation marks and citation omitted). This Court
reviews jury instructions as a whole to determine whether
error requiring reversal occurred. People v. Bartlett,
231
Mich.App. 139, 143
,
585 N.W.2d 341
(1998). The jury
instructions must include all elements of the charged
offenses, and must not omit material issues, defenses, or
theories that the evidence supports.
Id.
Even when
somewhat imperfect, jury instructions do not qualify as
erroneous provided that they fairly present to the jury the
issues to be tried and sufficiently protect the defendant's
rights. People v. Knapp,
244 Mich.App. 361, 376
,
624
N.W.2d 227
(2001); Bartlett, 231 Mich.App. at 143–144,
585 N.W.2d 341
.

Watson testified that on November 20, 2011, she and
defendant returned to Dailey's house after defendant had
proposed robbing Dailey; she and defendant entered
Dailey's house; they both participated in taking Dailey's
personal property from different areas of the house; and in
Watson's presence, defendant repeatedly punched Dailey's
face and stomped on her neck, twisted Dailey's neck with
his hands, bound her hands with a scarf, and exhibited to
Watson a knife before returning to Dailey's bedroom.
Watson also testified that in December 2012, the
prosecution agreed to dismiss a felony-murder charge
against her if she pleaded guilty of second-degree murder,
larceny in a building, and unlawful possession of a
financial transaction device. Watson affirmed that if she
“fulfill[ed] certain conditions ... [she would] serve a
minimum of twenty-three years[.]”

The trial court gave instructions that closely mirrored
standard accomplice instructions CJI2d 5.4 and CJI2d 5.6.
Defendant nonetheless complains that the instructions as
given contained language regarding Watson's plea
agreement premised on her truthful testimony (which
language also appears in CJI2d 5.4), improperly bolstering
Watson's credibility.

However, the instructions did not state or suggest that
Watson had offered truthful testimony, but only that the
prosecution had agreed to pursue a lesser charge against
Watson if she offered truthful testimony and that the
prosecution remained free to alter the plea agreement if it
obtained additional evidence against Watson.
Furthermore, the entirety of the instructions mirroring
CJI2d 5.4 and CJI2d 5.6 plainly cautioned the jury about
accepting Watson's testimony for multiple reasons.
Moreover, the trial court informed the jury on three
occasions that it had the sole responsibility to assess
credibility. In light of Watson's testimony establishing her
longtime use of cocaine and heroin and her offering of a
statement to the police, the trial court additionally gave an
addict-informer instruction, CJI2d 5.7, which provided
additional cautions to the jury regarding judging Watson's
credibility. Finally, the trial court instructed the jury that it
should consider her agreement to testify in exchange for
the prosecution's dismissal of a charge involving “a
possible penalty of life without parole” “as it relates to
[her] credibility and as it may tend to show [her] bias or
self-interest.”

We find no error in the trial court's use of an instruction
modeled on CJI2d 5.4. People v. Jensen,
162 Mich.App.
171
, 187–188,
412 N.W.2d 681
(1987) (explaining that in
light of a witness's “admissions and his guilty plea to a
reduced charge arising from the incident, his status as an
accomplice was beyond dispute” and that the court should
have instructed the jury pursuant to CJI2d 5.4). And
because the trial court correctly and accurately conveyed
to the jury the contents of CJI2d 5.4 and CJI2d 5.6, defense
counsel need not have objected to the proper jury
instructions. Thomas, 260 Mich.App. at 457,
678 N.W.2d
631
.

Wood,
862 N.W.2d at 26-28
.

Wood has not shown that the Michigan Court of Appeals’ decision was
contrary to, or an unreasonable application of, clearly established federal law. A
habeas petitioner is entitled to relief only if a defective jury instruction “so infected
the entire trial that the resulting conviction violates due process.” Cupp v. Naughten,
414 U.S. 141, 147
(1973). That standard was not met here. Indeed, contrary to
Wood’s claim, the trial court did not instruct the jury to find Watson credible. (See
ECF No. 9-14, PageID.789-790.) Nor did the trial court direct the jury to make
specific findings of fact. Instead, the trial court informed the jury only of the
common circumstances that may affect the credibility of a witness who testifies
under an agreement with the prosecution. Simply put, the trial court never told the
jury whether to accept or reject any or all of Watson’s testimony. Under these
circumstances, Wood has failed to show that the Michigan Court of Appeals
unreasonably rejected this claim. Wood is therefore not entitled to federal habeas
relief on this claim.
E
Wood next claims that the prosecutor suppressed evidence that DNA found at

the crime scene was tested against two other known individuals. Wood raised this
claim on direct appeal, and the Michigan Court of Appeals rejected it:
Next, defendant argues in his Standard 4 brief that the
prosecution suppressed exculpatory evidence in the form
of DNA tests, conducted seven months after the offense
was committed, on Jonathan Baker and DeJuan Crawford.
We disagree. This issue was not raised at trial and is
therefore unpreserved and must be reviewed for plain error
affecting substantial rights. Carines, 460 Mich. at 763–
764, 774,
597 N.W.2d 130
.

“Due process requires the prosecution to disclose evidence
in its possession that is exculpatory and material,
regardless of whether the defendant requests the
disclosure.” People v. Schumacher,
276 Mich.App. 165,
176
,
740 N.W.2d 534
(2007), citing Brady v. Maryland,
373 U.S. 83, 87
,
83 S.Ct. 1194
,
10 L.Ed.2d 215
(1963). To
establish a Brady violation, a defendant must prove

(1) that the state possessed evidence favorable to the
defendant; (2) that the defendant did not possess the
evidence nor could the defendant have obtained it
with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and
(4) that had the evidence been disclosed to the
defense, a reasonable probability exists that the
outcome of the proceedings would have been
different. [Schumacher,
276 Mich.App. at 177
,
740
N.W.2d 534
(quotation marks and citation
omitted).]

Defendant attaches as Exhibit 1 to his Standard 4 brief a
June 2012 “DNA Extraction Worksheet,” which lists
many items that Altesleben extracted DNA from in this
case, including a “[k]nown buccal [swab] from DeJuan
Crawford” and “[k]nown blood from Jonathan Baker.”
But defendant identifies nothing tending to establish that
this evidence was favorable to him, that he could not have
possessed it with reasonable diligence, that the
prosecution suppressed it, or that a reasonable probability
existed that the disclosure of the evidence might have
altered the outcome of his trial.
Id.
In short, defendant has
utterly failed to support his claim that the prosecution
suppressed exculpatory evidence.

Wood,
862 N.W.2d at 29-30
.

Wood has failed to show that the Michigan Court of Appeals’ decision was
contrary to, or an unreasonable application of, clearly established federal law. This
claim arises under the Supreme Court’s decision in Brady v. Maryland,
373 U.S. 83
(1963). “There are three components to a Brady violation: The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Strickler v. Greene,
527 U.S.
263, 281-82
(1999). Evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. See
id. at 280
. Here, the undisclosed evidence – if
Wood’s allegations are accepted as true – amounts to the fact that DNA evidence
obtained from the scene of the crime was compared to two known men. But Wood
has not shown that the DNA from either of those men actually matched the DNA
taken from the crime scene. Wood has therefore failed to show that this evidence
was exculpatory in any way. He therefore is not entitled to federal habeas relief on
this claim.

F
Wood next claims that the state trial court should have suppressed Watson’s
statement to police because either (1) the police violated Watson’s Fourth

Amendment rights before she made that statement, or (2) it was involuntarily given
due to Watson’s intoxication. Watson raised this claim on direct review, and the
Michigan Court of Appeals rejected it for lack of standing:
Finally, defendant argues in his Standard 4 brief that the
admission of Watson's statement to the Royal Oak police
violated his constitutional rights [….] We disagree.
Defendant's argument is partially premised on his claim
that the police violated Watson's right to protection from
unreasonable searches and seizures in obtaining her
statement; however, defendant has no standing to
challenge a violation of Watson's Fourth Amendment
rights. People v. Gadomski,
274 Mich.App. 174, 178
,
731
N.W.2d 466
(2007).

Wood,
862 N.W.2d at 31-32
.
Watson has failed to show that the Michigan Court of Appeals’ conclusion
was contrary to, or an unreasonable application of, clearly established federal law.
A plaintiff must “assert his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties.” Warth v. Seldin,
422 U.S.
490, 498
(1975). See also Newsom v Norris,
888 F.2d 371, 381
(6th Cir. 1989).
Furthermore, to the extent that Watson’s drug use at the time of the offense and her
statement affected her credibility, Wood’s counsel fully explored those issues during
his cross-examination of Watson. (See ECF No. 9-12, PageID.726-727, 729-730,

732.) Wood is therefore not entitled to federal habeas relief on this claim.
G
The remainder of Wood’s claims were presented to the state courts in his

motion for relief from judgment and the appeal that followed its denial. Respondent
argues that review of these claims is procedurally barred because the state trial court
denied relief based on Michigan Court Rule 6.508(D)(3). That rule prohibits a
defendant from raising claims on state collateral review that were not raised on direct

appeal absent a showing of “good cause” and “actual prejudice.”
Claims that were rejected by a state court on independent state procedural
grounds are barred from federal habeas review absent a showing of cause to excuse

the failure to comply with the rule and prejudice. See Coleman v. Thompson,
501
U.S. 722, 750
(1991). In this case, the Oakland County Circuit Court denied Wood
relief on these claims because Wood failed to demonstrate good cause or actual
prejudice resulting from the failure to raise the claims on direct appeal as required

by Rule 6.508(D)(3)(b).2 (See ECF No. 9-20, PageID.1522.) Because the trial court
2 When reviewing a habeas claim, a federal court must look to the last reasoned state
court judgment rejecting the federal claim and apply a presumption that later
unexplained orders upholding the judgment or rejecting the same claim rested upon
the same ground. See Ylst v. Nunnemaker,
501 U.S. 797, 803
(1991). Here, the state
appellate courts’ orders denying Wood relief on these claims are unexplained. Thus,
denied Wood’s claims based on the procedural grounds stated in Michigan Court
Rule 6.508(D)(3), Wood’s claims are procedurally defaulted pursuant to that rule.

See Ivory v. Jackson,
509 F.3d 284, 292-93
(6th Cir. 2007).
To demonstrate entitlement to habeas review of the defaulted claims, Wood
must establish either (1) cause for the default and prejudice from the alleged

constitutional violation, or (2) that failure to consider the claims would result in a
“fundamental miscarriage of justice.” Coleman,
501 U.S. at 750
.
Wood insists that his appellate attorney’s ineffectiveness excuses his default.
See Moore v. Mitchell,
708 F.3d 760, 776
(6th Cir. 2013) (ineffective assistance of

appellate counsel may constitute cause excusing a procedural default). However, an
attorney is not required “to raise every non-frivolous issue on appeal.” Caver v.
Straub,
349 F.3d 340, 348
(6th Cir. 2003). Indeed, “‘winnowing out weaker

arguments on appeal and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v.
Murray,
477 U.S. 527, 536
(1986) (quoting Jones v. Barnes,
463 U.S. 745, 751-52
(1983)). A failure to raise a claim on appeal will generally constitute deficient

performance if the omitted claim is “clearly stronger” than the claims raised. Monzo
v. Edwards,
281 F.3d 568, 579
(6th Cir. 2002).

the Court looks to the state trial court’s order denying Wood’s motion for relief from
judgment as the last reasoned decision when analyzing this claim.
Here, Wood has failed to show that the omitted claims are “clearly stronger”
than the ones raised by his two appellate attorneys. The state trial court explained

why the omitted claims lacked merit in the context of determining whether Wood
could demonstrate “actual prejudice”:
Defendant first argues that his Fourth Amendment rights
were violated when the Royal Oak Police seized him from
the custody of the Canton Police without an arrest warrant,
and then illegally transported him to Royal Oak.
Defendant cites no legal authority to support his position.
Furthermore, Defendant was properly arrested by the
Royal Oak Police without a warrant pursuant to MCL
764.2a and MCL 764.15. Because Defendant has shown
no error, he cannot meet the “actual prejudice” standard
set forth in MCR 6.508(D)(3)(b).

Defendant next argues that his right to due process was
violated because he was held in custody for ten days
without being arraigned. An arrested person must be
arraigned in the district court “without unnecessary
delay.” MCL 764.26; MCR 6.104(A). While there are few
facts in the record regarding Defendant’s arrest, it appears
that he was arrested and detained on November 22, 2011,
on the basis of a parole violation. An arrest warrant for the
charges in this case was issued on December 13, 2011, the
same day that Defendant was arraigned in the district court
on those charges. Therefore, Defendant has not shown that
his arraignment on the charges in this case was untimely.
Because Defendant has shown no error, he cannot meet the
“actual prejudice” requirement. MCR 6.508(D)(3)(b).

Defendant next argues that he was denied due process, and
that the Court lacked jurisdiction over him, because the
arrest warrant and complaint were not filed with the Court.
The record reflects that the arrest warrant and complaint
were filed in this Court on April 2, 2012. Again, Defendant
has shown no error and, therefore, cannot meet the “actual
prejudice” standard.

Defendant next argues that his right to a speedy trial was
violated because there was a thirteen-month delay between
his arrest and trial. Whether a Defendant has been denied
the right to a speedy trial depends on the balancing of four
factors: (1) the length of delay, (2) the reason for delay, (3)
the Defendant’s assertion of the right, and (4) prejudice to
the Defendant. People v. Williams,
475 Mich. 245
, 261-
262 (2006). Because the delay between Defendant’s arrest
and trial was less than eighteen months, prejudice is not
presumed. Id at 262. Defendant has not shown that he was
denied his right to a speedy trial where he has not shown,
or even argued, that he was prejudiced by the delay.
Accordingly, Defendant has not met the “actual prejudice”
standard set forth in MCR 6.508(D)(3)(b).

Defendant next argues that he was denied the effective
assistance of counsel because defense counsel failed to
investigate prosecution witness Tonia Watson to
determine that she had sixteen prior convictions.
Defendant appears to argue that, had Watson’s credibility
been impeached with evidence of her prior convictions, he
would have had a reasonably likely chance of acquittal.
Under MRE 609, a prior conviction generally may be used
to impeach a witness’ credibility if the prior conviction
involved an element of theft or dishonesty. People v.
Snyder (After Remand),
301 Mich. App. 99, 105-106
(2013). Contrary to Defendant’s argument, the record
shows that Tonia Watson’s credibility was impeached at
trial with her prior theft convictions. On direct
examination, Watson admitted that she had been convicted
of six theft offenses. On cross-examination, Watson again
acknowledged prior theft offenses. During closing
arguments, defense counsel effectively questioned
Watson’s credibility on the basis of her prior theft
convictions, as well as her drug use. Accordingly,
Defendant’s argument that defense counsel was not aware
of Tonia Watson’s prior convictions is not supported by
the record. Accordingly, Defendant has not shown “actual
prejudice” from the alleged error. MCR 6.508(D)(3)(b).

Defendant next argues that prosecutorial misconduct
denied him a fair trial. While Defendant argues that “[t)he
record is replete with instances where [the prosecutor)
flagrantly violated the ruling of the [C)ourt such as
testifying in the guise of examination creating prejudice
to persuade the jury to convict the Defendant on the basis
of character,” he does not point to any specific instances
of misconduct in the transcript. Furthermore, the jury was
instructed that it should decide the case on the basis of the
evidence, and that the lawyers’ statements, questions and
arguments are not evidence. Jurors are presumed to follow
the Court’s instructions. People v. Graves,
458 Mich. 476,
486
(1998). Defendant has not shown “actual prejudice”
with respect to this issue. MCR 6.508(D)(3)(b).

Defendant next argues that there “was no real physical
evidence ever shown” at his trial, and that he is actually
innocent. The record does not support Defendant’s
argument. There was evidence that Y-STR DNA matching
Defendant’s DNA sample was found under the victim’s
fingernails and on the scarf used to tie up the victim.
Furthermore, there was substantial, nonphysical, evidence
connecting Defendant to the crime. In addition to the
circumstantial evidence of Defendant’s guilt, Tonia
Watson’s testimony detailing Defendant’s perpetration of
the crime provided direct evidence of his guilt. Defendant
has not shown that he is entitled to relief on the basis of
this issue.

Defendant next argues that his right to a fair trial was
violated because the trial judge did not disqualify herself
when Defendant asked for a directed verdict. Defendant
cites People v. Hale,
72 Mich. App. 484
(1976), in which
the Court held that a trial judge should have been
disqualified from hearing a motion for a new trial where
the judge had knowledge that a witness for the prosecution
had passed a polygraph test. Here, there was no indication
in the record that Defendant took a polygraph
examination. Defendant has provided no legal or factual
support for his argument that the trial judge should have
been disqualified merely because Defendant moved for a
directed verdict. Defendant has not shown that he is
entitled to relief with respect to this issue. MCR
6.508(D)(J)(b).

Finally, Defendant argues that he was denied an impartial
judge because the trial judge “was running campaign ads
on television saying how tough she is on criminals who
commit (sic) crimes against women, children, and the
elderly. Then used the Defendant’s high profile trial as a
platform for aspirations of a higher court position.”
Defendant has submitted no evidence to support his
argument, nor has he cited any specific instances in which
he believes the trial judge exhibited bias. Accordingly,
Defendant has not met the “actual prejudice” standard.
MCR 6.508(D)(3)(b).

(ECF No. 9-20, PageID.1519-1522.)
As the trial court’s discussion demonstrates, the omitted claims were not
“clearly stronger” than those raised on appeal by Wood’s two appellate attorneys.
Indeed, the Michigan Court of Appeals deemed those issues worthy of careful
analysis in a published opinion. Under these circumstances, Wood has failed to
establish that his appellate attorneys rendered ineffective assistance during his direct
appeal, and he therefore fails to demonstrate cause to excuse his procedural default
of failing to raise these claims on direct review. Thus, Wood’s remaining habeas
claims (claims eleven through twenty) are procedurally defaulted.3

As none of Wood’s claims merit relief, the Court will DENY the petition
WITH PREJUDICE.
IV

In order to appeal the Court’s decision, Wood must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. See
28 U.S.C. §
2253
(c)(2). To demonstrate this denial, the applicant is required to show that

reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. See Slack v. McDaniel,
529 U.S. 473, 483-84
(2000). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. See Castro v. United States,
310 F.3d
900, 901
(6th Cir. 2002). Here, jurists of reason would not debate the Court’s
conclusion that Wood has failed to demonstrate entitlement to habeas relief with

respect to his habeas claims. Therefore, a certificate of appealability will be denied.

3 Nor has Wood shown that he can avoid a procedural default under the fundamental
miscarriage of justice exception by showing that he is actually innocent. See House
v. Bell,
547 U.S. 518, 536
(2006). Wood has not presented any new reliable evidence
to support an actual innocence claim.
The Court will also deny Wood leave to appeal in forma pauperis because an
appeal of this decision could not be taken in good faith. See
28 U.S.C. § 1915
(a)(3).

V
Accordingly, for all of the reasons stated above, the Court 1) DENIES WITH
PREJUDICE Wood’s petition for a writ of habeas corpus (ECF No. 1), 2) DENIES

Wood a certificate of appealability, and 3) DENIES Wood leave to appeal in forma
pauperis.
IT SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 3, 2020

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 3, 2020, by electronic means and/or
ordinary mail.

s/Holly A. Monda
Case Manager
(810) 341-9764

Wood v. Nagy

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