United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. Following a jury trial in the
Kalamazoo County Circuit Court, on April 14, 2006, Petitioner
Hyland Steven Sterling was convicted of first-degree
felony-murder, Mich. Comp. Laws § 750.316b, and
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. On May 8, 2006, he was
sentenced to a term of life imprisonment on the murder
conviction consecutive to a sentence of two years on the
appealed his convictions to the Michigan Court of Appeals
raising five main issues (Issues I-V below). In an
unpublished opinion issued April 22, 2008, the court of
appeals affirmed the convictions. Petitioner filed an
application seeking leave to appeal to the Michigan Supreme
Court, raising the same issues. In an order issued September
9, 2008, the supreme court denied Petitioner's
application for leave to appeal.
then returned to the trial court. He filed a motion for
relief from judgment raising six grounds for relief (Issues
VI-XI below). The court denied the motion by order dated
October 30, 2009. Petitioner sought leave to appeal, raising
the same six issues, in the Michigan Court of Appeals and
then the Michigan Supreme Court. Those courts denied leave by
orders entered August 18, 2010 and March 30, 2011,
habeas petition, filed on April 27, 2011, Petitioner raises
the same eleven issues he raised in the state courts:
I. REVERSIBLE ERROR OCCURRED WHERE THE JURY'S VERDICT WAS
AGAINST THE GREAT WEIGHT OF EVIDENCE.
II. DEFENDANT'S TRIAL COUNSEL MADE CRITICAL ERRORS DURING
TRIAL WHICH PREJUDICED DEFENDANT AND DENIED HIM A FAIR TRIAL
AND EFFECTIVE ASSISTANCE OF COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE OF HIS FAILURE TO
CONDUCT AN INVESTIGATION TO DETERMINE IF KNOWN WITNESSES HAD
DIRECT EVIDENCE TO SUBSTANTIATE HIS DEFENSE AND COUNSEL HAVE
DONE SO IF HE HAD MOVED FOR A HEARING OF DUE DILIGENCE ON HIS
MOTION FOR ASSISTANCE BUT FAILED TO DO SO.
B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE HAD FAILED TO
CHALLENGE THE USE BY THE PROSECUTOR OF OTHER BAD ACTS
COMMITTED BY DEFENDANT.
C. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO HAVE
THE JURY MADE AWARE THAT THE PHOTOGRAPH OF EXHIBIT 5 OF
DEFENDANT USED AT TRIAL WAS TAKEN SOME YEARS AFTER THE
HOMICIDE, WHERE THE LENGTH OF DEFENDANT'S HAIR WAS AN
ISSUE AT TRIAL.
D. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO
CHALLENGE THE PHOTOGRAPHS OF THE DECEASED WHEN CAUSE OF DEATH
WAS NOT AN ISSUE.
E. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO CALL A
CRITICAL WITNESS AT TRIAL.
III. HICOK'S TESTIMONY WOULD HAVE BEEN CRITICAL FOR
DEFENDANT'S DEFENSE. TRIAL COUNSEL'S FAILURE TO
PRESENT HER TO THE JURY DENIES DEFENDANT A FAIR TRIAL.
DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE EVIDENCE PRESENTED
AT HIS TRIAL WAS INSUFFICIENT TO ESTABLISH THE ELEMENTS OF
FIRST DEGREE FELONY MURDER.
IV. THE PROSECUTION FAILED TO USE DUE DILIGENCE TO ASSIST THE
DEFENDANT TO PRODUCE THE RES GESTAE WITNESS, BABBIE BOOKER AS
A WITNESS AT TRIAL WHICH DENIED HIM THE ABILITY TO PRESENT A
VALID DEFENSE AT TRIAL WHICH SHOULD HAVE RESULTED IN HIS
ACQUITTAL AND THE TRIAL COURT ERRED WHEN IT SHIFTED THE
BURDEN TO DEFENDANT TO FIND HIS WITNESS.
V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT RULED
MS BOOKER'S TESTIMONY WAS NOT CREDIBLE, DEFENDANT WAS NOT
PREJUDICED BY THE FAILURE TO HAVE MS BOOKER'S TESTIMONY
PRESENTED TO THE JURY BY DENYING THE MOTION FOR A NEW TRIAL.
VI. TRIAL COURT VIOLATED THE SIXTH AMENDMENT CONFRONTATION
CLAUSE BY ADMITTING NON-TESTIFYING, FORENSIC PATHOLOGIST, DR
HARVEY WILKES' AUTOPSY REPORT AND ALLOWING A DIFFERENT
FORENSIC PATHOLOGIST DR. JOYCE DEJONG TO GIVE OPINIONS AND
DRAW CONCLUSIONS AS TO THE AUTOPSY PERFORMED BY THE
NON-TESTIFYING FORENSIC PATHOLOGIST.
VII. DEFENDANT SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND
RIGHT TO CONFRONTATION AND HIS FOURTEENTH AMENDMENT DUE
PROCESS RIGHT TO PRESENT A DEFENSE WERE VIOLATED WHEN THE
TRIAL JUDGE ERRONEOUSLY RULED THAT THE PROSECUTION EXERCISED
GOOD FAITH AND DUE DILIGENCE IN HIS FAILURE TO PRODUCE
WITNESS JAMES RUSHMORE.
VIII. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL
A. TRIAL COUNSEL WAS INEFFECTIVE (1) FOR FAILURE TO OBJECT TO
THE ADMISSION OF DOCTOR HARVEY'S AUTOPSY REPORT (2) FOR
FAILURE TO OBJECT TO THE ADMISSION OF THE TESTIMONY OF
FORENSIC PATHOLOGIST DOCTOR JOYCE DEJONG.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO REQUEST A
MISSING WITNESS INSTRUCTION.
IX. THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR
TRIAL IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS
A. THE PROSECUTOR FAILED TO MEET ITS OBLIGATION TO PRODUCE
WITNESS JAMES RUSHMORE[.]
B. Left Blank]
C. THE PROSECUTOR PERSONALLY VOUCHED FOR THE CREDIBILITY OF
WITNESS JAMES RUSHMORE.
D. THE PROSECUTOR ARGUED FACTS NOT IN EVIDENCE.
E. THE PROSECUTOR'S IMPROPER ACTIONS CREATED REVERSIBLE
ERROR WHETHER THEY ARE CONSIDERED SEPARATELY OR IN THEIR SUM
F. “HARMLESS ERROR, ” A RATIONAL VIEW OF THE
EVIDENCE, OR A SIMILAR ARGUMENT SHOULD NOT BE APPLICABLE.
X. THE EVIDENCE FAILED TO SUPPORT THE JURY'S
DETERMINATION THAT ROBERT O'KEEFE WAS MURDERED DURING THE
COMMISSION OF A LARCENY.
XI. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE [OF
COUNSEL] ON APPEAL WHEN APPELLATE COUNSEL FAILED TO RAISE
(Pet. Attach. F, ECF No. 1-1, PageID.33-80.) On November 14,
2011, Respondent filed an answer to the petition (ECF No. 5),
stating that the grounds should be denied because they are
procedurally defaulted and/or without merit. On November 29,
2011, Respondent filed the state-court record, pursuant to
Rule 5, Rules Governing § 2254 Cases. (ECF No.
6-39.) Upon review and applying the standards
from the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), the Court
finds that all habeas grounds are meritless. Accordingly, the
Court will deny the petition for failure to raise a
meritorious federal claim.
25, 1995, Christina Laing left her home at 829 Oakwood in
Kalamazoo, Michigan, to work the lunch shift at Don
Neal's restaurant. (Trial II Tr. II, ECF No. 22, p.
231-232, 236-237.) When she walked out at 10:30, she left
behind her boyfriend, Robert O'Keefe, sleeping in their
bed, and the dog they owned together. (Id., p.
252-253, 270.) When she returned at around 2:30 p.m., she
found the dog had been shut in the bedroom with Robert.
(Id., p. 256-258.) When she could not rouse Robert,
she realized he was dead; he had been shot in the head.
(Id.) The only things that appeared to be missing
were her sister's backpack, and the briefcase that was
typically locked up in the trunk of Robert's car.
(Id., p. 269.) That briefcase had contained
thousands of dollars in cash and a .44 caliber handgun.
(Id., p. 265, 272, 303.) Robert had been shot with a
.44. (Id., p. 350.)
and Robert were coworkers and best friends. (Trial II Tr.
VII, ECF No. 27, p. 843; Trial II Tr. II, ECF No. 22, p.
238-239.) Several weeks prior to Robert's murder,
Petitioner and Robert, with the assistance of Robert's
sister Tricia Emme, had robbed a bank. (Trial II Tr. IV, ECF
No. 24, p. 618-620.) The robbery yielded no gains for the
participants because Robert and Petitioner were forced to
abandon their ill-gotten gains when the dye pack “went
off.” (Id.) The robbery was, at least in part,
an effort by Robert and Petitioner to generate funds so that
they might purchase a Kalamazoo bar known as “The
Warehouse.” (Id., p. 617-618.)
Robert's murder, Tricia reported what she knew about the
robbery to law enforcement. (Id., p. 621-622.) She
wore a wire and, because of that effort, produced evidence of
Petitioner's role in the robbery. (Id., p. 640.)
Petitioner was arrested for his role in the bank robbery less
than four weeks after Robert's murder. See
Arrest Warrant, United States v. Sterling, No.
1:95-cr-127 (W.D. Mich. Aug. 21, 1995). Petitioner pleaded
guilty to bank robbery and was sentenced to 72 months
imprisonment and two years of supervised release. United
States v. Sterling, No. 96-1482, 1996 WL 708350 at *1
(6th Cir. Dec. 6, 1996).
cold case team in Kalamazoo County renewed the murder
investigation in March of 2004. (Trial II Tr. V, ECF No. 25,
p. 752.) The circumstantial evidence they gathered led the
cold case team to seek arrest warrants for Petitioner as
Robert's killer. (Probable Cause Hr'g Tr., ECF No. 8)
The prosecutor first tried Petitioner for Robert's murder
in August of 2005. (Trial I Tr. I-VII, ECF No. 13-19.) That
trial resulted in a “hung” jury: 10 jurors voted
for acquittal, 2 for conviction. (New Trial Mot. Hr'g Tr.
I, ECF No. 30, p. 24.) Petitioner's second trial, during
April of 2006, resulted in the convictions and sentences
evidence presented by the prosecution was circumstantial and
a full exploration of the circumstances surrounding
Robert's death took several days of testimony from 27
witnesses. The defense presented the testimony of 13
witnesses, including Petitioner. The Michigan Court of
Appeals distilled the volumes of testimony to the following
concise statement of facts:
The evidence at trial established that defendant and
O'Keefe planned to purchase a bar known as The Warehouse.
Defendant knew that an investor had given O'Keefe a large
sum of money to invest in the purchase, but was pressuring
him to return the money. The investor's attorney
testified that he was in the process of arranging for
repayment of the money. Another witness testified that a few
days before O'Keefe's death, defendant was looking
for O'Keefe and was angry because he believed that
O'Keefe was backing out of the deal to buy The Warehouse.
James Rushmore, defendant's former cellmate, testified
that defendant told him that one of his associates was killed
for backing out of the deal to purchase The Warehouse.
Defendant admitted that he saw O'Keefe retrieve money,
which he assumed was part of the investment money, from
O'Keefe's car trunk on the night before the offense.
Further, Christina Laing, O'Keefe's live-in
girlfriend, stated that defendant was with her, standing at
the trunk of O'Keefe's car, when O'Keefe took a
large sum of the money from a briefcase and split it with
defendant about a month before the offense. Defendant
admitted receiving the money. The bullets recovered from
O'Keefe's body were .44-caliber, and witnesses
testified that O'Keefe owned a .44-caliber handgun.
Tricia Emme, O'Keefe's sister, testified that during
an earlier bank robbery committed by defendant and
O'Keefe, defendant carried O'Keefe's .44-caliber
handgun. Christina Laing and O'Keefe's mother both
testified that O'Keefe always kept his guns in his
briefcase, which was always in his car trunk. Laurie Laing,
one of O'Keefe's roommates, testified that when
O'Keefe showed her the investment money in his briefcase,
she saw the .44-caliber handgun in it. Defendant admitted
that he knew that O'Keefe owned two guns. From this
evidence, the jury could reasonably infer that defendant was
aware that O'Keefe kept the large sum of money and his
guns in his briefcase, which was kept in the trunk of his
car. The jury could also infer that the .44-caliber gun in
O'Keefe's briefcase was the weapon that was used to
Christina Laing testified that on July 25, 1995, the day of
the offense, O'Keefe was alive when she left the house at
10:30 a.m. and was dead when she returned around 2:30 p.m.
Officer Higby testified that he arrived at the house at 2:38
p.m. There was conflicting evidence whether gunshots were
heard before or after noon. Defendant did not have an alibi
for the morning hours. Justin Roettger, O'Keefe's
neighbor, saw a man matching defendant's general
description looking into a car in O'Keefe's driveway
on the morning of the offense. He drew a sketch of the shirt
that the man was wearing. Three witnesses identified the
shirt as similar to one they had seen defendant wear.
Roettger testified that when he saw defendant at the house
later that day, he looked like the man he saw earlier, except
that his hair was shorter. Emme stated that defendant had
said that he cut his hair that day. Several witnesses
testified that defendant did not always have a clean-shaven
head. Furthermore, defendant's fingerprints were found on
both sides of O'Keefe's car, as well as the trunk.
From this evidence, the jury could reasonably infer that
defendant was the person who was observed outside
O'Keefe's house on the morning of the offense, during
a time span for which defendant did not have an alibi.
Christina Laing also testified that defendant overheard her
tell O'Keefe that she had to work on the day of the
offense. It was undisputed that defendant and O'Keefe
were good friends at the time. The jury could have reasonably
inferred that defendant knew that O'Keefe's other
roommates and Christina Laing would be at work at the time of
the offense. Although there was no direct evidence that
defendant had been in the upstairs portion of the home before
O'Keefe was killed, Christina and Laurie Laing both
testified that defendant came up the stairs on the night of
the offense looking for O'Keefe's blue book.
Christina Laing also testified that defendant had been to
O'Keefe's house before and sat near the kitchen table
where the roommates kept their car keys and where Laurie
Laing left her backpack. O'Keefe's briefcase where he
kept his money and Laurie Laing's backpack were both
missing after O'Keefe was killed. Additionally, both
items were found in a dumpster near the two places that
established defendant's afternoon alibi. Furthermore,
defendant asked his live-in girlfriend, Laura Schmidt, to
move his own briefcase before the police searched his home,
and Rushmore testified that defendant admitted to being at
the scene when O'Keefe was shot. From this evidence, the
jury could reasonably infer that defendant was familiar with
O'Keefe's house, was aware that O'Keefe would be
the only person at the house on the morning of the offense,
and knew where the car keys were kept, giving him access to
O'Keefe's car where O'Keefe kept his briefcase.
The foregoing evidence and reasonable inferences arising from
the evidence, viewed in a light most favorable to the
prosecution, is sufficient to enable the jury to determine
beyond a reasonable doubt that defendant was the person who
murdered O'Keefe during the commission of a larceny. A
person matching defendant's description was seen looking
into O'Keefe's car, on which defendant's
fingerprints were found, near the time of the offense.
Defendant had no alibi for the morning hours, which were
within the timeframe in which the offense could have been
committed. There was also evidence that defendant knew where
O'Keefe kept his car keys, knew O'Keefe would be
alone at the time of the offense, and knew where O'Keefe
kept his guns and the investment money. O'Keefe was
killed with the same caliber handgun as the one he kept in
his briefcase. The briefcase and Laurie Laing's backpack
were both taken from the scene. These items were recovered in
the vicinity of defendant's afternoon alibi, but
O'Keefe's money and the .44-caliber handgun that were
inside the briefcase were never recovered. Finally,
defendant's former cellmate testified that defendant made
statements indicating that an associate was killed for
backing out of the deal to purchase The Warehouse. Although
defendant argues that many of the witnesses against him were
biased, the credibility of the witnesses was for the jury to
resolve. The evidence was sufficient to support
People v. Sterling, No. 270838, 2008 WL 1810318 at
*1-3 (Mich. Ct. App., April 22, 2008) (footnote omitted).
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The
AEDPA has “drastically changed” the nature of
habeas review. Bailey v. Mitchell, 271 F.3d 652, 655
(6th Cir. 2001). An application for writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication: “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is
“intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015)
(internal quotation marks omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3d at 655. In determining whether
federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Lopez v.
Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d
at 655. Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus,
the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 132 S.Ct. at 44).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 2015 WL
1400852, at *3 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S.__, 134 S.Ct. 1697, 1705 (2014) (quotations marks
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Sufficiency of the evidence (Habeas issues I and X)
contends that the evidence presented by the prosecutor was
insufficient in at least two respects: first, the prosecutor
failed to show that Petitioner caused the death of Robert
O'Keefe (habeas issue I); and second, the prosecutor
failed to show that Robert O'Keefe's death was caused
during the commission of a larceny (habeas issue X). A §
2254 challenge to the sufficiency of the evidence is governed
by the standard set forth by the Supreme Court in Jackson
v. Virginia, 443 U.S. 307, 319 (1979), which 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.” This standard of review recognizes
the trier of fact's responsibility to resolve reasonable
conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.
Id. Issues of credibility may not be reviewed by the
habeas court under this standard. See Herrera v.
Collins, 506 U.S. 390, 40102 (1993). Rather, the habeas
court is required to examine the evidence supporting the
conviction, in the light most favorable to the prosecution,
with specific reference to the elements of the crime as
established by state law. Jackson, 443 U.S. at 324
n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th
Jackson v. Virginia standard “gives full play
to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. Moreover,
because both the Jackson standard and AEDPA apply to
Petitioner's claims, “‘the law commands
deference at two levels in this case: First, deference should
be given to the trier of fact's verdict, as contemplated
by Jackson; second, deference should be given to the Michigan
[trial court's] consideration of the trier of fact's
verdict, as dictated by AEDPA.'” Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc)
(quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th
Cir. 2008)). This standard erects “a nearly
insurmountable hurdle” for petitioners who seek habeas
relief on sufficiency of the evidence grounds. Id.
at 534 (quoting United States v. Oros, 578 F.3d 703,
710 (7th Cir. 2009)).
Michigan Court of Appeals applied the Jackson
In reviewing a challenge to the sufficiency of the evidence,
this Court must view the evidence in the light most favorable
to the prosecution and determine whether a rational trier of
fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. People v. Wilkens,
267 Mich.App. 728, 738, 705 N.W.2d 728 (2005). This Court
should not interfere with the factfinder's role of
determining the weight of evidence or the credibility of
witnesses. People v. Wolfe, 440 Mich. 508, 514, 489
N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748');">489 N.W.2d 748
(1992). This Court recognizes that it is the jurors' role
to determine what inferences can be fairly drawn from the
evidence, and to determine the weight to be accorded to the
inferences. People v. Hardiman, 466 Mich. 417, 428,
646 N.W.2d 158 (2002). Circumstantial evidence and reasonable
inferences arising from the evidence can constitute
satisfactory proof of the elements of the crime. People
v. Fennell, 260 Mich.App. 261, 270, 677 N.W.2d 66
(2004). All conflicts in the evidence must be resolved in
favor of the prosecution. People v. Fletcher, 260
Mich.App. 531, 562, 679 N.W.2d 127 (2004).
Sterling, 2008 WL 1810318 at *1. Thus, it cannot
be said that the standard applied by the court of appeals was
contrary to clearly established federal law.
stating the standard, the court of appeals applied it
appropriately. The court carefully reviewed the evidence,
considering that evidence in a light most favorable to the
prosecution. The court's entire analysis is quoted above.
See p. 7-9, infra. The analysis on its face is
consistent with, not contrary to clearly established federal
law. The factual findings with respect to the evidence
offered by the prosecutor appear to be reasonable.
does not even attempt to find fault with the court's
application of the Jackson standard or its factual
findings. Instead, he simply views the same evidence in a
light that favors him and, therefore, reaches different
conclusions. It is Petitioner's argument, not the state
court's determination, that is a patently unreasonable
application of the Jackson standard.
Michigan Court of Appeals identified the elements of felony
murder:” (1) the killing of a human being; (2) with the
intent to kill, to do great bodily harm, or to create a very
high risk of death or great bodily harm with knowledge that
death or great bodily harm would be the probable result; (3)
while committing, attempting to commit, or assisting in the
commission of an enumerated offense, including
larceny.” Sterling, 2008 WL 1810318 at *1
(citation omitted). The court of appeals' analysis of the
evidence against the Jackson standard supports the
court's conclusion that there was sufficient evidence,
circumstantial though it may be, to support the jury's
verdict as to each of the elements of the charged offense.
Petitioner's sufficiency challenge has no merit.
Witnesses that did not testify but should have (Habeas
issues IIA, IIE, III, IV, and V)
of Petitioner's habeas issues are based on the fact that
Detective Amy Hicok and witness Babbie Booker were not called
to testify at his trial. With respect to Detective Hicok,
Petitioner contends his counsel's failure to call her
constituted ineffective assistance. With respect to Babbie
Booker, Petitioner contends his counsel's failure to find
her and call her constituted ineffective assistance and that
the prosecutor's failure to provide sufficient assistance
in locating Ms. Booker was misconduct that rendered his trial
unfair. Petitioner raised these issues for the first time in
a motion for new trial following his conviction and sentence.
The court conducted a hearing. The court heard testimony from
Ms. Booker, Detective Hicok, Petitioner's trial counsel,
and investigating officers.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984), the Supreme Court established a two-prong test by
which to evaluate claims of ineffective assistance of
counsel. To establish a claim of ineffective assistance of
counsel, the petitioner must prove: (1) that counsel's
performance fell below an objective standard of
reasonableness; and (2) that counsel's deficient
performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome. A court
considering a claim of ineffective assistance must
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that
the challenged action might be considered sound trial
strategy. Id. (citing Michel v. Louisiana,
350 U.S. 91, 101 (1955)); see also Nagi v. United
States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that
counsel's strategic decisions were hard to attack).
Matters of trial strategy, such as determinations regarding
which witnesses to present and what questions to ask, are
presumed correct and are generally not evaluated in hindsight
or second-guessed upon habeas review. McQueen v.
Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). The court
must determine whether, in light of the circumstances as they
existed at the time of counsel's actions, “the
identified acts or omissions were outside the wide range of
professionally competent assistance.”
Strickland, 466 U.S. at 690. Even if a court
determines that counsel's performance was outside that
range, the defendant is not entitled to relief if
counsel's error had no effect on the judgment.
Id. at 691. “When deciding
ineffective-assistance claims, courts need not address both
components of the inquiry ‘if the defendant makes an
insufficient showing on one.'” Campbell v.
United States, 364 F.3d 727, 730 (6th Cir. 2004)
(quoting Strickland, 466 U.S. at 697). “If it
is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”
Strickland, 466 U.S. at 697.
as the Supreme Court repeatedly has recognized, when a
federal court reviews a state court's application of
Strickland under § 2254(d), the deferential
standard of Strickland is “doubly”
deferential. Harrington v. Richter, 562 U.S. 86, 105
(2011) (citing Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10,
13 (2013); Cullen v. Pinholster, 131 S.Ct. 1388,
1403 (2011); Premo v. Moore, 562 U.S. 115');">562 U.S. 115, 122
(2011). In those circumstances, the question before the
habeas court is “whether there is any reasonable
argument that counsel satisfied Strickland's
deferential standard.” Id.; Jackson v.
Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that
the “Supreme Court has recently again underlined the
difficulty of prevailing on a Strickland claim in
the context of habeas and AEDPA . . . .”) (citing
Harrington, 562 U.S. at 102).
standard for evaluating prosecutorial misconduct claim on
habeas review is similarly deferential. Millender v.
Adams, 376 F.3d 520, 528 (6th Cir. 2004) (“Claims
of prosecutorial misconduct are reviewed deferentially on
habeas review.”) (citing Bowling v. Parker,
344 F.3d 487, 512 (6th Cir. 2003)). Indeed, “[t]he
Supreme Court has clearly indicated that the state courts
have substantial breathing room when considering
prosecutorial misconduct claims because ‘constitutional
line drawing [in prosecutorial misconduct cases] is
necessarily imprecise.'” Slagle v. Bagley,
457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 645 (1974)). Thus, in order
to obtain habeas relief on a prosecutorial misconduct claim,
a habeas petitioner must show that the state court's
rejection of his prosecutorial misconduct claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Parker v.
Matthews, 132 S.Ct. 2148, 2155 (2012) (internal
petitioner to be entitled to habeas relief on the basis of
prosecutorial misconduct, the petitioner must demonstrate
that the prosecutor's improper conduct “‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.'” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). “[T]he touchstone of due process analysis . .
. is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209,
219 (1982)). In evaluating the impact of the prosecutor's
misconduct, a court must consider the extent to which the
claimed misconduct tended to mislead the jury or prejudice
the petitioner, whether it was isolated or extensive, and
whether the claimed misconduct was deliberate or accidental.
See United States v. Young, 470 U.S. 1, 11-12
(1985). The court also must consider the strength of the
overall proof establishing guilt, whether the conduct was
objected to by counsel and whether a curative instruction was
given by the court. See Id. at 12-13;
Darden, 477 U.S. at 181-82; Donnelly, 416
U.S. at 646-47; Berger v. United States, 295 U.S.
78, 8485 (1935).
March 9, 2007 new trial motion hearing, Detective Hicok
testified that on July 25, 1995, between 10:30 and 11:30
a.m., she was driving down Oakland Drive in Kalamazoo,
Michigan. (New Trial Mot. Hr'g Tr. I, ECF No. 30, p. 80.)
She saw a pedestrian, a black male, six feet tall or taller,
wearing dark clothing and carrying a dark-colored backpack.
(Id., p. 82-83.) He was walking away from the house
where Robert was killed. (Id., p. 87.) She could not
say whether or not the man she saw was Petitioner.
Hills, Petitioner's trial counsel at both trials,
compelled Detective Hicok's appearance at
Petitioner's first trial by subpoena. (Id., p.
85.) He had seen her written report during his investigation
and preparation for trial; he hoped that she might have been
shown a photo lineup. (New Trial Mot. Hr'g Tr. II, ECF
No. 31, p. 243-244.) If that were the case, and she was not
able to identify the pedestrian as Petitioner, it might
support his defense. After speaking with her, however, he
released her from the subpoena. (New Trial Mot. Hr'g Tr.
I, ECF No. 30, p. 85-86.) He recalled that she had not been
shown any photographs. (New Trial Mot. Hr'g Tr. II, ECF
No. 31, p. 243-244.) He was concerned that putting Detective
Hicok on the stand would simply confirm the description
provided by the neighbor, Roettger, and could support a
determination that the pedestrian was Petitioner leaving the
Hicok, however, recalled that she was shown one photograph in
August of 1995. (New Trial Mot. Hr'g Tr. I, ECF No. 30,
p. 95-97.) She was not able to say, in August of 1995,
whether the person in the photograph was the pedestrian or
not. (Id.) She made that very clear to Attorney
Hills when he interviewed her in anticipation of calling her
as a witness before the August 2005 trial. (Id., p.
denying Petitioner's motion for new trial, the trial
court concluded that Attorney Hills' decision to not call
Detective Hicok was strategic and that it was not ineffective
assistance. (Id., p. 338-339.) The trial court also
concluded that there was no prejudice to defendant from the
decision because Detective Hicok's testimony may have
helped the prosecution. (Id., p. 337-339.) The
Michigan Court of Appeals reached the same conclusions:
Defendant further argues that counsel was ineffective for
failing to call Detective Amy Hicok as a witness. We
disagree. Detective Hicok could not say whether defendant was
the person she saw walking near the crime scene carrying a
backpack-type bag, but her general description of the man she
saw matched defendant and defendant did not have an alibi for
the timeframe during which Detective Hicok saw the man. The
trial court did not err in finding that counsel's
decision not to call her as a witness was reasonable trial