United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. On February 6, 2008, an Allegan County
Circuit Court jury found petitioner guilty of first-degree
home invasion, Mich. Comp. Laws § 750.110a(2), and
aggravated assault, Mich. Comp. Laws § 750.81a.
Petitioner's convictions arise out of his conduct on the
evening of August 12, 2007, in which he assaulted his wife,
March 7, 2008, Judge William Baillargeon sentenced petitioner
to ten to thirty years' imprisonment on his first-degree
home invasion conviction and twelve months in jail on the
aggravated assault conviction. After unsuccessful attempts to
overturn his convictions and sentence in state court,
petitioner filed his habeas corpus petition. Petitioner asks
this court to overturn his conviction and sentence on the
following grounds set forth in his amended petition:
I. Petitioner's Fourteenth Amendment due process right to
notice and his Fifth Amendment rights were violated when the
trial court allowed amendment of the information.
II. Petitioner's Sixth Amendment right to attorney-client
privilege was violated when a jail officer overheard
petitioner's trial strategy, informed the prosecutor, and
the prosecutor moved to preclude any defense of involuntary
III. Petitioner's Fourteenth Amendment due process rights
and his Sixth Amendment right to present a defense were
violated when the Allegan County jail's recordings of
telephone conversations were destroyed.
IV. Petitioner's Fourteenth Amendment right to present a
defense was violated the trial court judge denied
petitioner's counsel's request for a forensic
V. Petitioner's Fourteenth Amendment right to present a
defense was violated by the trial court's limitation on
VI. Petitioner's Fourteenth Amendment due process rights
and his Fifth Amendment rights were violated when the
prosecutor asked for modification of the information to match
the evidence at trial.
VII. Petitioner's Fourteenth Amendment due process rights
were violated by a jury instruction with regard to
first-degree home invasion that relieved the prosecution of
the burden of proving specific intent.
(Amended Petition, ECF No. 14, PageID.531-38).
filed his answer to the petition. Respondent argues that the
petition should be denied because all grounds raised by
petitioner lack merit. (Answer at 2, 26-47, ECF No. 30,
PageID.629, 653-74). In addition, petitioner argues that
Grounds IV and VII are barred by procedural defaults.
(Id. at 9, 36-38, 43-45, 47, PageID.636, 663-65,
review of the state-court record, I find that all grounds
raised in the petition lack merit. Accordingly, I recommend
that the petition will be denied.
Court's review of this petition is governed by the
provisions of the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA
“dictates a highly deferential standard for evaluating
state-court rulings which demands the state court decisions
be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted).
“AEDPA requires heightened respect for state court
factual and legal determinations.” Lundgren v.
Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings  are presumed correct;
the petitioner has the burden of rebutting the presumption by
clear and convincing evidence.” Davis v.
Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and
internal quotations omitted).
state court adjudicated the claim, deferential AEDPA
standards must be applied. 28 U.S.C. § 2254(d); see
Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny
claim that was adjudicated on the merits in State court
proceedings' is subject to AEDPA deference.”)
(quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal
habeas “retrials” and ensures that state court
convictions are given effect to the extent possible under
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S.Ct. 2148,
2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “Section 2254(d) reflects the that
habeas corpus is a guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary
error corrections through appeal.” Id. at
102-03 (citation and internal quotation omitted); see
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section
2254(d) states that an application for a 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); see
White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis
v. Ayala, 135 S.Ct. at 2198; White v. Woodall,
134 S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings-not dicta-of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.”). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
unreasonable application of the Supreme Court's holding
must be “‘objectively unreasonable, ' not
merely wrong; even ‘clear error' will not
suffice.” White v. Woodall, 134 S.Ct. at 1702
(quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)). Rather, “[a]s 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.”
White v. Woodall, 134 S.Ct. at 1702 (quoting
Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,
' ” and “[i]t therefore cannot form the basis
for habeas relief under AEDPA.” Hill v.
Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting
Parker v. Matthews, 132 S.Ct. at 2155); see
Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per
curiam) (“As we have repeatedly emphasized, 
circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2)
requires that this Court accord the state trial court
substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination. Brumfield v. Cain, 135
S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct.
10, 15 (2013).
Circuit Court Proceedings
was charged with first degree home invasion, assault with
intent to do great bodily harm less than murder, and
second-degree child abuse. Judge Baillargeon conducted a
number of pretrial hearing on various motions. The first such
hearing was held on November 13, 2007. (Motion Hearing (MH
I), ECF No. 32). The prosecutor filed a motion to allow the
impeachment of petitioner, if he chose to testify at trial,
by his prior criminal convictions involving theft and
dishonesty under Rule 609 of the Michigan Rules of Evidence.
The prosecutor produced certified copies showing
petitioner's convictions for the felonies of filing of a
false police report and breaking and entering of a motor
vehicle. The court granted the motion. (MH I, 2-4).
counsel indicated that the defense was contending that
“the alleged victim, Brittany Ketola had been consuming
alcohol, prescription medications, [and] admittedly consumed
marijuana.” The defense also believed that Mrs. Ketola
used cocaine. Counsel requested funds to obtain an expert who
could testify regarding whether mixing prescription
medications with alcohol and controlled substances would
affect a person's credibility and/or impact that
person's aggressiveness. (MH I, 7). Counsel was also
seeking expert testimony regarding the medical trauma and
injuries that petitioner suffered and its impact on a
person's memory or the ability to formulate specific
intentions or actions. The court approved this request for
funds. (MH I, 7-8).
counsel moved to quash all the charges. Judge Baillargeon
found that the testimony elicited during petitioner's
preliminary examination established probable cause and he
denied the motion. (MH I, 9-17).
Baillargeon next considered petitioner's counsel's
motion to exclude the statements that petitioner gave to the
police. The judge heard testimony from Michigan State Police
Trooper Benjamin Clearwater and petitioner. Trooper
Clearwater testified that petitioner did not appear to be too
intoxicated to know what was happening. (MH I, 20). Trooper
Clearwater read petitioner his Miranda rights and he
appeared to understand them. After having been informed of
those rights, petitioner voluntarily elected to speak to
Trooper Clearwater and offered a version of events minimizing
his involvement. Petitioner's speech was not slurred.
Trooper Clearwater never saw petitioner lose consciousness.
(MH I, 20-29). Petitioner testified that he had no
independent recollection of this meeting or his statements.
(MH I, 30, 34). Judge Baillargeon denied petitioner's
motion to exclude his statements. He found sufficient
evidence that petitioner made a knowing and voluntary waiver
of his Miranda rights. (MH I, 36-37).
January 30, 2008, the court conducted another hearing on a
number of motions. (Motion Hearing II (MH II), ECF No. 33).
Among the matters addressed was petitioner's
counsel's motion regarding production of telephone
recordings of conversations between petitioner and Brittany
Ketola. Petitioner's counsel indicated that it was his
understanding that the recording system at the Allegan County
jail had crashed. It was his understanding that there were no
recordings to be produced, but if recordings existed, he
wanted copies. The prosecutor confirmed that there were no
recordings: “There are none, Your Honor. I have checked
with Deb Marcuilis from the jail; and unfortunately during
the process of fixing their computer system, those were
destroyed.” (MH II, 14).
next motion addressed was petitioner's counsel's
motion in limine regarding petitioner's parole status.
Petitioner was on parole on the date the crimes alleged in
the information occurred. (MH II, 14). Petitioner's
attorney asked that the prosecution's witnesses not be
permitted to raise the issue of petitioner's parole