United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
NANCY G. EDMUNDS UNITED STATES DISTRICT COURT JUDGE
Marnez Williams, (“Petitioner”), confined at the
Carson City Correctional Facility in Carson City, Michigan,
filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction
for first-degree premeditated murder, M.C.L.A. 750.316; felon
in possession of a firearm, M.C.L.A. 750.224f; and possession
of a firearm in the commission of a felony, M.C.L.A.
750.227b. For the reasons that follow, the petition for writ
of habeas corpus is DENIED.
was convicted following a jury trial in the Genesee County
Circuit Court. This Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
Defendant's convictions arose out of the murder of Janien
Cobbin, who had been defendant's girlfriend. In May 2005,
Cobbin was shot and killed in her apartment. On the night the
police first investigated the murder, defendant and two
friends drove to Cobbin's apartment. While defendant and
his friends were there, the police requested and received
permission to search their car. The police found a handgun in
the car and arrested all three men for possession of the gun.
Defendant initially waived his right to counsel and told the
police that he had attended car races on the night of the
The prosecutor charged defendant with weapons counts but not
with murder, because tests showed that the gun found in the
car was not the murder weapon. Defendant pleaded guilty to
certain weapons counts and was sentenced to two years'
imprisonment. Defendant began serving his sentence at the
Newberry prison facility, where he met fellow inmate James
Hicks and defendant had several conversations. Hicks then
contacted authorities and indicated that defendant had made
incriminating statements about the murder. Hicks subsequently
agreed to have a hidden recorder placed in his radio. Both
Hicks and defendant were transferred to the Muskegon prison
facility, where they were made cellmates. For six days their
conversations were recorded, including conversations in which
Hicks asked defendant about Cobbin. During the recorded
conversations, defendant indicated that he had killed Cobbin.
The prosecutor subsequently charged defendant with the
Defendant filed several pretrial motions to suppress the
prison recordings. The trial court denied the motions.
Defendant also filed motions to obtain Hicks's prison
file, but the Department of Corrections (DOC) did not produce
the file prior to trial. At trial, Hicks and the prosecutor
read excerpts of the prison recordings into evidence. Those
excerpts included defendant saying, “I blew her mother
fucking head off.” The prosecutor played a portion of
the recordings for the jury and introduced the transcript of
the recordings into evidence.
The prosecution also presented expert witness Dan Harris, who
testified about using cellular telephone records to identify
the location of defendant's telephones at the time of the
murder. Defendant objected to Harris's testimony on the
ground that the prosecution had not previously identified
Harris as an expert witness. The trial court overruled the
objection, noting that the prosecution's mid-trial
identification of Harris as a witness arose from
defendant's objection to another witness's proffered
testimony on the issue of cell phone location. Harris then
testified that on the night of the murder, defendant's
cell phones were in close geographic proximity to
Cobbin's apartment. In response to Harris's
testimony, defendant presented expert witness Manfred Schenk.
Schenk stated that the call detail method used by Harris
could not identify the location of a cell phone. Schenk
explained that Harris's method could identify the
location of the cell tower that handled a particular call,
but that there was no direct relationship between the
location of the cell tower and the location of a cell phone.
Schenk opined that, absent a global positioning chip, the
sole accurate method to locate a cell phone during a call is
“triangulation”-which was not done in this case.
The prosecution later re-called Harris. Harris acknowledged
that the call detail method he used in this case could not
identify the precise location of a cell phone. Harris
nonetheless testified that defendant's cell phones could
not have been at his alibi location (car races) at the time
of the murder.
People v. Williams, No. 301384, 2013 WL 5629647, at
*1-2 (Mich. Ct. App. Oct. 15, 2013).
Petitioner's conviction was affirmed on appeal. Id.,
lv. den. 497 Mich. 852 (2014).
Petitioner seeks a writ of habeas corpus on the following
I. Police officers illegally seized and arrested Williams
without probable cause or reasonable suspicion in violation
of the Fourth Amendment, and his subsequent statement to
police and the police agent were inadmissible at trial as the
fruit of the poisonous tree.
II. Williams's statement was obtained in violation of his
rights under the Fifth, Sixth, and Fourteenth Amendments.
III. Williams was denied a fair trial by the admission of an
improper photographic line-up conducted while he was in
custody; there was no independent basis for the in-court
IV. Williams's right to privacy and due process was
violated by the surreptitious recording of private
conversations between Williams and his jailhouse lawyer; his
attorney-client privilege was also violated.
V. Incriminating statements obtained from Williams through
Hicks, an agent for police, was in violation of the
attorney-client privilege and the prophylactic rule that
required police to inform Williams about the availability of
counsel, Williams was denied a fair trial where statements
were introduced at trial.
VI. Williams was denied “fundamental fairness”
where the trial court erred in denying the motion for new
trial where employees of the Department of Corrections in
complicity with the Flint Township Police and the
prosecutor's office violated numerous prison policies and
Williams's Fourth Amendment and Due Process rights when
they introduced a recording device used by an inmate to
record conversations without authorization.
VII. The state court erred reversibly in denying Williams
relief pursuant to Federal and State eavesdropping laws.
VIII. Williams was denied his constitutional rights of (a)
Equal Protection; (b) Freedom of communication and
association; (c) right to be free from cruel and unusual
punishment and; (d) his right to the access of the court
during pre-trial incarceration, making admission of his
statements illegal and conviction unreliable.
IX. Williams was denied of multiple constitutional
protections when the state denied his motion to
suppress/dismiss the constitutionally defective arrest
X. The state court erred reversibly in denying Williams his
motion to quash the bind over and dismiss the information.
XI. The state court erred in denying Williams's motion
for a new trial when the prosecutor and the trial court
denied his discovery request, suppressed material evidence,
and denied due process and Sixth Amendment right to
XII. The state court should have granted Williams relief
where he was denied his Sixth Amendment right to a speedy
XIII. The destruction of evidence that was favorable to
Williams violated his right to confront the testimony of the
State's star prosecution witness.
XIV. The admission of evidence of highly inflammatory other
acts that were irrelevant and not probative under FRE 404(B)
or any other evidence rule denied Williams a fair trial.
XV. The surprise introduction of a voicemail recording denied
Williams his right to discovery and his right to a fair trial
where the recording was not adequately identified.
XVI. The introduction of surprise expert testimony from a
“cell tower” expert denied Williams his right to
discovery and effective cross-examination; the expert
testimony was not admissible as it was not based on a
recognized science; Williams was denied effective assistance
of counsel and fair trial.
XVII. Williams was deprived of effective assistance of trial
counsel, trial by impartial and unbiased jury, where the
trial court appeared to be biased and not impartial towards
Williams and defense counsel.
XVIII. Williams was deprived of a fair trial through
prosecutorial misconduct during closing arguments, where
remarks were not supported by the evidence, were intended to
inflame and appeal to the passion of the jury.
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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[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)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Court is aware that although the Michigan Court of Appeals
did not explicitly address several of the claims that
petitioner raised on his appeal of right, the AEDPA's
deferential standard nonetheless applies to these claims as
well. “When a state court rejects a federal claim
without expressly addressing that claim, a federal habeas
court must presume that the federal claim was adjudicated on
the merits” for purposes of invoking the AEDPA standard
of review. Johnson v. Williams, 133 S.Ct. 1088, 1096
filed a petition with this Court, raising eighteen claims.
The Sixth Circuit recently observed: “When a party
comes to us with nine grounds for reversing the district
court, that usually means there are none.” Fifth
Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509
(6th Cir. 2012).
Claims # 1, # 4, # 6, # 7, and # 9. The Fourth Amendment
brings a number of Fourth Amendment challenges to his
conviction. In his first claim, petitioner alleges that the
police arrested him without probable cause, thus, any
subsequent statements made by petitioner to the police should
have been suppressed as the fruit of an illegal arrest. As
part of his fourth claim, petitioner argues that his Fourth
Amendment right to privacy was violated when the
conversations between himself and Mr. Hicks were secretly
recorded. Petitioner repeats this claim in his sixth claim.
In his seventh claim, petitioner alleges that the secret
recording of his conversations with Mr. Hicks violated
federal and state eavesdropping laws. In his ninth claim,
petitioner contends that the state trial court erred in
denying his motion to suppress or dismiss the allegedly
defective arrest warrant on the murder charge.
federal habeas review of a petitioner's arrest or search
by state police is barred where the state has provided a full
and fair opportunity to litigate an illegal arrest or a
search and seizure claim. Stone v. Powell, 428 U.S.
465, 494-95 (1976); Machacek v. Hofbauer, 213 F.3d
947, 952 (6th Cir. 2000). For such an opportunity to have
existed, the state must have provided, in the abstract, a
mechanism by which the petitioner could raise the claim, and
presentation of the claim must not have been frustrated by a
failure of that mechanism. Riley v. Gray, 674 F.2d
522, 526 (6th Cir. 1982). The relevant inquiry is whether a
habeas petitioner had an opportunity to litigate his claims,
not whether he in fact did so or even whether the Fourth
Amendment claim was correctly decided. See Wynne v.
Renico, 279 F.Supp.2d 866, 892 (E.D. Mich. 2003);
rev'd on other grds 606 F.3d 867 (6th Cir.
2010). Indeed, under Stone, the correctness of a
state court's conclusions regarding a Fourth Amendment
claim “is simply irrelevant.” See Brown v.
Berghuis, 638 F. Supp, 2d 795, 812 (E.D. Mich. 2009).
Moreover, this Court does not look into the adequacy of the
procedures used to litigate petitioner's various Fourth
Amendment claims in the state courts. The Sixth Circuit noted
that “[t]he Powell ‘opportunity for full
and fair consideration' means an available avenue for the
prisoner to present his claim to the state courts, not an
inquiry into the adequacy of the procedure actually used to
resolve that particular claim.” See Good v.
Berghuis, 729 F.3d 636, 639 (6th Cir. 2013).
present case, petitioner was able to present his Fourth
Amendment claims to the state trial court in his pre-trial
motions to suppress and was later able to present his Fourth
Amendment claims to the Michigan appellate courts. That is
sufficient to preclude review of the claims on habeas review.
Good v. Berghuis, 729 F.3d at 640. Moreover, because
petitioner had an opportunity to challenge the admission of
his statements to Hicks as a form of illegal eavesdropping,
he is not entitled to habeas relief on any claim that the
admission of this evidence violated his Fourth Amendment
rights. See e.g. Crawford v. Artuz, 165 F.Supp.2d
627, 637 (S.D.N.Y. 2001).
Claims # 2, # 4, and # 5. The claims relating to
petitioner's statements to Mr. Hicks.
Court consolidates petitioner's second, fourth, and fifth
claims together because they are interrelated and overlap.
second claim, petitioner argues that his Sixth Amendment
right to counsel and his Fifth Amendment right to remain
silent were violated when Mr. Hicks tape recorded his
confessions to the murder in prison.
first claims that his Sixth Amendment right to counsel was
violated because he had been represented by an attorney on
the original weapons charges that he pleaded guilty to and
was still in the process of appealing that conviction with
the assistance of counsel at the time that Mr. Hicks
initiated the conversations in which petitioner incriminated
Sixth Amendment right to counsel “does not attach until
a prosecution is commenced, that is, at or after the
initiation of adversary judicial criminal proceedings-whether
by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Texas v. Cobb,
532 U.S. 162, 167-68 (2001)(quoting McNeil v.
Wisconsin, 501 U.S. 171, 175 (1991)(internal citations
and quotation marks omitted); See also Davis v.
U.S., 512 U.S. 452, 456-57 (1994). Moreover, there is no
exception to this rule for uncharged crimes that are
“factually related” to a charged offense.
Texas v. Cobb, 532 U.S. at 167-68. Petitioner had
not been formally charged with the murder at the time that he
spoke with Mr. Hicks, thus, the fact that he may have been
represented by counsel on the weapons charges, even if they
were factually related to the uncharged murder, would not bar
Mr. Hicks from speaking with petitioner about the murder.
Id., at 173.
further claims that his Fifth and Sixth Amendment rights
under Miranda were violated when Mr. Hicks spoke
with petitioner and recorded his confessions.
prosecutor may not use a defendant's statements which
stem from custodial interrogation unless the prosecutor can
demonstrate the use of procedural safeguards which are
effective to secure a defendant's privilege against
self-incrimination. Miranda v. Arizona, 384 U.S.
436, 444 (1966). Unless other means are devised to inform a
suspect of his right to silence and a “continuous
opportunity to exercise it, ” the following warnings
are required to be given to a suspect:
1. the person must be warned that he has a right to remain
2. that any statement he does make may be used against him;
3. and that he has a right to the presence of an attorney,
either appointed or retained.
Miranda, 384 U.S. at 444.
first suggests that Mr. Hicks should have advised him of his
Miranda warnings before obtaining incriminating
admissions from him. In Illinois v. Perkins, 496
U.S. 292, 300 (1990), the Supreme Court held that an
undercover law enforcement officer posing as a fellow inmate
was not required to give Miranda warnings to an
incarcerated suspect before asking questions that may elicit
an incriminating response. The Supreme Court reasoned that
“Conversations between suspects and undercover agents
do not implicate the concerns underlying Miranda.
The essential ingredients of a “police-dominated
atmosphere” and compulsion are not present when an
incarcerated person speaks freely to someone whom he believes
to be a fellow inmate.” Id., at 296. The
Supreme Court further opined that “When a suspect
considers himself in the company of cellmates and not
officers, the coercive atmosphere is lacking.”
Id. Other courts have extended the rationale in
Perkins to hold that a prisoner acting as an
undercover informant is not required to administer
Miranda warnings prior to obtaining incriminating
statements from a defendant. See United States v.
Cook, 599 F.3d 1208, 1213-14 (10th Cir. 2010). Mr. Hicks
was acting as an undercover informant, thus, he was not
required to administer Miranda warnings to
petitioner prior to recording his statements.
addition, petitioner was not subjected to a custodial
interrogation at the time that he made his ...