United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER 1) DENYING AMENDED PETITION FOR
WRIT OF HABEAS CORPUS, 2) DENYING CERTIFICATE OF
APPEALABILITY, AND 3) GRANTING PERMISSION TO APPEAL IN FORMA
Page Hood Chief Judge
matter is before the Court on Petitioner Lamar Clemons'
petition for a writ of habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner was convicted in the Oakland Circuit
Court after a jury trial of first-degree murder. Mich. Comp.
Laws. § 750.316. He was sentenced to life imprisonment
with no possibility of parole. The petition raises seven
claims: (1) there was insufficient evidence presented at
trial to sustain Petitioner's conviction, (2)
Petitioner's trial counsel was ineffective for failing to
request a more detailed accessory-after-the-fact jury
instruction, (3) Petitioner's trial counsel was
ineffective for failing to move to redact references to a
polygraph test from Petitioner's videotaped statement to
police, (4) Petitioner's trial was rendered fundamentally
unfair by the admission of gruesome photographs, (5)
Petitioner's trial counsel was ineffective in numerous
other ways, (6) the prosecutor committed misconduct during
closing arguments, and (7) Petitioner was denied his right to
be present when witnesses testified against his co-defendant
outside his presence.
Court finds that Petitioner's claims are without merit.
Therefore, the petition will be denied. The Court will also
deny Petitioner a certificate of appealability, but it will
grant him permission to proceed on appeal in forma pauperis.
Facts and Procedural History
convictions result from the shooting death of Jonathan
Clements, who had arranged on the internet website Craigslist
to purchase a cell phone from Petitioner's co-defendant,
evidence presented at trial indicated that Lyons agreed to
come to Hazel Park, where Clements lived, to sell his phone.
Lyons asked Petitioner for a ride to Hazel Park. Before
driving to Hazel Park, though, evidence suggested that
Petitioner drove Lyons to another residence where Lyons
picked-up a handgun. Lyons promised to pay Petitioner $30 for
was presented indicating that Petitioner knew Lyons had
previously schemed to use Craigslist to find a robbery
victim. Petitioner had also seen Lyons two days earlier with
men drove to Hazel Park in Petitioner's car. Lyons texted
Clements to let him know they were having a hard time finding
his address. Petitioner then parked in a bank parking lot
close to Clements' address. Lyons got out of the car and
walked out of Petitioner's line of sight.
waited in his car, and he heard two noises that sounded like
gunfire. Lyons came running back to the car, told Petitioner
he messed up, and Petitioner drove them home. The next day
Petitioner drove Lyons to a house where Lyons returned the
gun to Jeremy Baker, its owner.
next day, police officers pulled Petitioner's vehicle
over for a traffic stop. Lyons was a passenger in the car. A
detective investigating the shooting was called to the scene
and interviewed Petitioner. Petitioner denied that he was
with Lyons on the previous day, and he said he knew nothing
about the Hazel Park shooting.
voluntarily came to the Hazel Park police station the next
day to talk to the detective again. Petitioner told the
detective he drove Lyons to Hazel Park two days before. Lyons
said he was going there to sell his cell phone. In a second
interview, however, Petitioner admitted that Lyons told him
he was planning to commit a robbery. Dkt. 6-5, at 90-91, 117.
Petitioner told the detective that immediately prior to Lyons
leaving his car to meet with the buyer, Petitioner believed
there was going to be a robbery. Id., at 117.
Petitioner told the detective that he believed Lyons was
armed with a gun on the day of the shooting, though he never
saw it. Id., at 116.
on this evidence, Petitioner was convicted of first-degree
murder under an aiding and abetting theory and sentenced to
filed a claim of appeal in the Michigan Court of Appeals. His
appellate brief raised the following claims:
I. Where the evidence did not prove beyond a reasonable doubt
that Defendant-Appellant Lamar Clemons knew of his
co-defendant's larceny plan until after he had driven the
co-defendant to the scene of the crime, it was legally
insufficient to prove that he aided and abetted the larceny
and thus insufficient to sustain his felony-murder
II. Counsel was ineffective for not insisting that the jury
instructions make clear that if the jury believed Mr. Clemons
to have been an accessory after the fact it should acquit him
of the murder charges.
III. Counsel was ineffective for not insisting that the
interrogation video be redacted to remove the
interrogation's questions about Lamar Clemons's
willingness to undergo a polygraph examination and Mr.
Clemons's equivocal responses, and for instead expressing
satisfaction with the trial judge's inadequate cautionary
IV. The trial judge denied Mr. Clemons a fair trial by
admitting, over his lawyer's objection, a particularly
gruesome autopsy photograph that was far more prejudicial
also filed a pro se supplemental brief that raised the
I. Defendant was denied his constitutional right to the
effective assistance of trial counsel in violation of the
Sixth Amendment counsel's cumulative errors prejudice
defendant to a fair trial.
II. Defendant was denied a fair trial because of prosecutor
misconduct during closing arguments.
III. The defendant was denied his constitutional right to be
present at all stages of his aiding and abetting trial when
he was not allowed to hear the testimony of critical
witnesses that testified at his co-defendant's trial in
violation of the Due Process Clause.
Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. People v.
Clemons, No. 306463 (Mich. Ct. App. Dec. 26, 2013).
Petitioner subsequently filed an application for leave to
appeal in the Michigan Supreme Court, raising the same
claims. The Michigan Supreme Court denied the application
because it was not persuaded that the questions presented
should be reviewed by the Court. People v. Clemons,
853 N.W.2d 100 (Mich. 2014).
Standard of Review
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;
(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.
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 nevertheless arrives at a result different from
[this] 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 the statute
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. “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), quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “Section
2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal. . . . As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Id. at 786-87 (internal quotation omitted).
obtain relief under § 2254(d)(2), a petitioner must show
an unreasonable determination of fact and that the resulting
state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d
242, 250 (6th Cir. 2012). However, a federal habeas court
must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner