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Sterling v. Berghuis

United States District Court, W.D. Michigan, Southern Division

November 1, 2016

HYLAND STEVEN STERLING, Petitioner,
v.
MARY BERGHUIS, Respondent.

          OPINION

          Paul L. Maloney United States District Judge

         This is 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 felony-firearm conviction.

         Petitioner 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 In an unpublished opinion issued April 22, 2008, the court of appeals affirmed the convictions.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.

         Petitioner 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, respectively.

         In his 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 COUNSEL
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][1]
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 TOTAL.
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 MERITORIOUS ISSUES.

(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.)[2] 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.

         Factual Allegations

         On July 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.)

         Petitioner 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.)

         After 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).

         The 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 outlined above.

         The 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 shoot O'Keefe.
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 defendant's convictions.

People v. Sterling, No. 270838, 2008 WL 1810318 at *1-3 (Mich. Ct. App., April 22, 2008) (footnote omitted).

         Discussion

         This 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).

         The 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).

         A 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 omitted).

         The 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).

         I. Sufficiency of the evidence (Habeas issues I and X)

         Petitioner 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 Cir. 1988).

         The 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)).

         The Michigan Court of Appeals applied the Jackson standard:

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.[3] Thus, it cannot be said that the standard applied by the court of appeals was contrary to clearly established federal law.

         After 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.

         Petitioner 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.

         The 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.

         II. Witnesses that did not testify but should have (Habeas issues IIA, IIE, III, IV, and V)

         Several 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.

         In 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.

         Moreover, 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).

         The 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 quotation omitted).

         For a 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).

         A. Detective Hicok

         At the 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.

         Michael 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 scene. (Id.)

         Detective 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. 101.)

         In 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 ...

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