United States District Court, W.D. Michigan, Southern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding brought pro se by a state
prisoner pursuant to 28 U.S.C. § 2254. Petitioner's
criminal convictions stem from his role in the killing of
Roland Johnson. On February 23, 2007, a Kalamazoo County
Circuit Court jury found petitioner guilty of first-degree
premeditated murder, Mich. Comp. Laws § 750.316(1)(a),
and possession of a firearm during the commission of a
felony, Mich. Comp. Laws § 750.227b. On April 9, 2007,
petitioner was sentenced to life without parole on his
first-degree murder conviction and a consecutive two
years' imprisonment on his felony firearm conviction.
(ECF No. 15-13, PageID.1596).
unsuccessful attempts to overturn his convictions in state
court, petitioner filed this habeas corpus petition.
Petitioner seeks federal habeas corpus relief on the
I. Petitioner was denied his due process right to a fair
trial and his right to confront the witnesses against him by
the prosecution's surprise admission of a report from the
firearms expert that was not disclosed in discovery.
Petitioner was denied the effective assistance of counsel
when his attorney failed to object or request a mistrial,
continuance or other relief.
II. Petitioner received ineffective assistance of counsel and
the trial court's finding to the contrary was clearly
erroneous and the court abused its discretion in denying
petitioner's motion for a new trial.
III. Trial counsel and appellate counsel were
constitutionally ineffective in failing to object to
inadmissible and highly prejudicial testimony that petitioner
had previously been locked up and involved in selling drugs.
IV. Prosecutorial misconduct in introducing perjured
testimony of a key prosecution witness that contradicted the
medical examiner's findings concerning the distance
between the gun barrel and the deceased; alternatively,
defense counsel was ineffective in failing to impeach the
witness with inconsistent preliminary examination testimony
concerning her observation of the shooting; furthermore,
appellate counsel was ineffective in failing to raise this
V. Prosecutorial misconduct in knowingly presenting false
testimony of a key witness deprived petitioner of a fair
VI. Petitioner was denied effective assistance of counsel
when his trial attorney failed to adequately cross-examine
Medical Pathologist Brian Hunter to show that there was no
soot or powder tattooing of the skin around the gunshot
Petitioner was denied effective assistance of appellate
counsel when his appellate attorney (1) “failed to
diligently find Ms. Simpson to confirm the newly
discovered evidence claim;” and (2) failed to raise
on direct appeal the ground that petitioner raised in his
(Amended Petition, ECF No. 11, PageID.121-35). Respondent argues
that Grounds I and II should be denied for lack of merit and
that Grounds III-VII are barred by the statute of
limitations. (ECF No. 16).
review of the state-court record, this Court concludes
petitioner has not established grounds for federal habeas
corpus relief. Petitioner has not shown that the decision of
the Michigan Court of Appeals rejecting Grounds I and II was
“contrary to, or involved an unreasonable application
of clearly established Federal law, as determined by the
Supreme Court of the United States, ” or that it was
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Grounds III
through VII are barred by the statute of limitations. 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).
Findings of Fact
District Court Proceedings
was charged with open murder in the March 27, 2006, killing of
Roland Johnson and possession of a firearm during the
commission of a felony. Petitioner received a preliminary
examination in the 8th District Court in Kalamazoo. (ECF No.
15-2). On May 3, 2006, Judge Quinn Benson bound over
petitioner for trial in Kalamazoo County Circuit Court on all
charges. (Id. at PageID.398-99).
Circuit Court Proceedings
Monday, October 9, 2006, Judge Philip Schaefer held a hearing
on petitioner's attorney's motions for expert witness
fees and to adjourn trial. (ECF No. 15-4). During the course
of this hearing, the prosecutor advised defense counsel and
the court that the resident of the home where Roland Johnson
had been shot and killed had recently found what appeared to
be a bullet fragment. It had been discovered during the
process of cleaning the corner of the basement where the
victim's body had been found. The bullet fragment was
turned over to the police and the prosecutor learned of its
existence on the Thursday or Friday before the hearing. The
prosecutor indicated that the item was in the process of
being packaged for delivery to a laboratory for testing. It
was apparent that it would be necessary to determine whether
this round came from the weapon fired by petitioner or
whether it had been fired by the victim. (Id. at
4-5, PageID.413-14). The court granted petitioner's
attorney's motions to adjourn the trial and for expert
witness fees. (Id. at 6-7, PageID.415-16).
trial began on February 13, 2007, and it concluded on
February 23, 2007, with the jury's verdict finding him
guilty of first-degree premeditated murder and possession of
a firearm during the commission of a felony. (Trial
Transcripts (TT ITT VII, ECF No. 15-6 through 15-12).
group of associates included Maurice Furcron (aka Julio),
Travanti Black (aka Big Ned or Ned), and Michael Johnson (aka
“Mike-Mike). Petitioner used the aliases
“Rero” and “Ron Ron.” (TT II, 353-57,
ECF No. 15-7; TT III, 463-67, 487, 545-47, 564-66, 601-03,
ECF No. 15-8; TT IV, 657-61, 734-40, ECF No. 15-9).
Petitioner was Maurice Furcron's “flunky.”
(TT II, 360, 368; TT IV, 740). Petitioner would “do
just about anything [Furcron] told him to do.” (TT II,
Davis had been Maurice Furcron's girlfriend. (TT II, 353,
373). She broke up with Furcron a short time before Roland
Johnson was shot and killed. (TT II, 354). Maurice Furcron
had injured his leg and was using crutches. Approximately two
weeks before Johnson was killed, Furcron found Johnson's
car at Tawana Simpson's residence at 1516 Humphrey
Street. Furcron was upset about Christina Davis's
relationship with Roland Johnson. Maurice Furcron used his
crutch to smash out the windows in Roland Johnson's car.
(TT III, 463, 471-72, 479).
days later, on March 27, 2006, Roland Johnson returned to
1516 Humphrey Street. Christina Davis, Alysa Davis, Shami
Ballard, and Donald (aka “Dub”) Cobb were also
present. This group was in the basement smoking marijuana and
drinking alcohol. (TT II, 375-77, 389-90; TT III, 427-30,
512-13, 531-32, 548). Alysa Davis was talking to someone on
the telephone and she revealed Roland Johnson's location.
(TT II, 392; TT III, 425). Less than an hour later,
petitioner, his aforementioned group of associates, and
others were at 1516 Humphrey Street demanding entry. (TT II,
395-96; TT III, 513).
Briley testified that, on the night in question, she drove
her van to 1516 Humphrey Street. Briley had six passengers.
The four male passengers were petitioner, Maurice Furcron,
Travanti Black, and Michael Johnson. The two female
passengers were Tionna Brown, and Crystal Ware. (TT III,
563-69, 605-06; TT IV, 651-62). Maurice Furcron was on
crutches and he initially stayed by the van with Ms. Briley
while the others went up to the house and began banging on
the doors and windows and yelling. (TT III, 572-73).
Neighbors heard a lot of banging and cursing and loud noises
coming from 1516 Humphrey. They heard someone demanding that
the door be opened and saw a number of people running around
the house and banging on the doors and windows. A short time
thereafter, they heard gunshots that sounded like
firecrackers. (TT II, 293-99, 304-08).
Davis testified that Maurice Furcron had threatened to kill
her if he caught her with another guy. (TT II, 396). She
recognized Travanti Black's voice as he was demanding
that the occupants open the door. She recognized
petitioner's voice. She later heard Maurice Furcron's
voice after his group gained entry into the residence.
Christina Davis also heard Candie Briley and Tionna Brown.
(TT II, 397, 402).
the people inside the home failed to open the door, the
pounding became more violent. (TT II, 397; TT III, 513-15).
Prints matching Michael Johnson's shoes were found on the
front door. (TT V, 874-75, ECF No. 15-10). Christina Davis
heard people moving around the outside of the house. (TT II,
398-400). She heard the sound of someone breaking in through
an upstairs window. (TT II, 401; TT III, 473-74). Donald Cobb
testified that he went upstairs when he heard the banging.
(TT III, 516-17). He became frightened when he heard someone
coming in through the bathroom window. (TT III, 517-22).
Michael Johnson testified that, with assistance from Travanti
Black and petitioner, he was able to get inside the house
through the bathroom window. (TT IV, 668-71). Donald Cobb
opened the front door and ran away. (TT IV, 672-73, 747).
Cobb testified that a group of men rushed in past him as he
was headed in the opposite direction. (TT III, 517-22). Cobb
was well away from the house when the shooting started. (TT
Briley saw someone open the door. Petitioner, Travanti Black,
and Michael Johnson rushed inside. Briley accompanied Furcron
from the van into the house. (TT III, 573). Briley testified
that she was on the stairs a few steps behind Furcron when
she heard gunshots.
Johnson testified that petitioner was the first of his group
to go through the front door and that petitioner immediately
went downstairs. (TT IV, 673). Travanti Black and Tionna
Brown were next. Michael Johnson testified that he came next,
and that he was near the middle of the stairs, with Maurice
Furcron and Crystal Ware further up on the stairs behind him,
when the shooting started. (TT IV, 674-77).
Ware testified that petitioner grabbed Roland Johnson by the
collar. Roland Johnson appeared “scared like he knowed
[sic] he was going to die.” (TT IV, 749). Petitioner
pulled a gun from his waistline. Roland Johnson fought for
his life and tried to keep petitioner from pointing the gun
at him. Roland Johnson lost this struggle and he was shot,
and then fell. Petitioner retained the gun in his hands. (TT
IV, 752-57, 767). Crystal Ware testified that she heard three
or four shots. (TT IV, 763).
Johnson heard around six gunshots. (TT IV, 677-78). Johnson
testified that he saw petitioner coming up the stairs and
wiping off the gun. Petitioner handed the gun to Johnson.
Johnson looked inside the revolver and saw that all the
bullets had been fired. ...