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Zora v. Winn

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

January 10, 2017

Salam Shaker Zora, Petitioner,
v.
Thomas Winn, Respondent.

          R. Steven Whalen, Mag. Judge

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS [1], DENYING THE MOTION FOR AN EVIDENTIARY HEARING [9], AND DENYING A CERTIFICATE OF APPEALABILITY

          Judith E. Levy, United States District Judge

         Petitioner Salam Zora, confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 through his attorneys Daniel E. Harold, Mayer Morganroth, and Stuart Friedman. (Dkt. 1.) He has also filed a motion for an evidentiary hearing. (Dkt. 9.) Petitioner challenges his conviction for second-degree murder, Mich. Comp. Laws § 750.317, and carrying or possessing a gun when committing a felony, Mich. Comp. Laws § 750.227b.

         For the reasons set forth below, the petition for a writ of habeas corpus is denied. Further, the motion for an evidentiary hearing is denied, and a certificate of appealability will not issue.

         I. Background

         Petitioner was charged with first-degree murder and possessing a firearm during a felony after killing his brother-in-law, Najem Matti. On September 25, 2009, a jury found Petitioner guilty of second degree murder and felony-firearm.

         The 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 arise from the January 23, 2009, shooting death of his brother-in-law. The victim and his wife (defendant's sister) previously lived in defendant's home. After they moved out, defendant discovered that approximately $250, 000 was missing from a hideaway at his residence. Defendant suspected that the victim stole the money. On January 20, 2009, defendant confronted the victim about the money and, according to defendant, the victim agreed to go to their church later that week to swear on a Bible to his innocence. Three days later, defendant went to the victim's residence unannounced to again discuss the missing money. Defendant was armed with a gun and was accompanied by his two brothers. Defendant ultimately shot the victim five times. Three of the gunshots were to the back of the victim's body. There was no evidence of a struggle in the residence. Defendant presented a claim of self-defense through himself and his two brothers. The defense theory at trial was that the victim charged toward defendant while shouting an Arabic war death cry and while holding a butcher knife in his raised right hand and a two-pronged barbecue fork in his left hand.

People v. Zora, No. 296508, 2011 WL 2623384, at *1 (Mich. Ct. App. July 5, 2011). Petitioner's conviction was affirmed on appeal. Id., leave denied 491 Mich. 852 (2012).

         Petitioner then filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Zora, No. 2009-2137-FC (Macomb Cty. Cir. Ct. Oct. 28, 2013). The Michigan appellate courts denied Petitioner leave to appeal. People v. Zora, No. 321508 (Mich. Ct. App. June 11, 2014); People v. Zora, No. 150070, 497 Mich. 1011 (2015).

         Petitioner now seeks a writ of habeas corpus. Petitioner first argues he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel was unprepared, failed to interview and call several material witnesses, failed to investigate and present exculpatory evidence, and stipulated to the admission of false evidence. (Dkt. 1-1 at 19-37.) Next, Petitioner argues he was denied due process as guaranteed by the Fourteenth Amendment because of prosecutorial misconduct. The prosecutor at trial allegedly presented false evidence, concealed evidence, and submitted a false affidavit to the trial court regarding what the prosecutor did and did not argue at trial. (Id. at 37- 43.) Third, Petitioner claims he was denied his right to a trial by a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments because the jury was racially and ethnically biased against him. (Id. at 43-44.) Finally, Petitioner claims his trial was “fundamentally unfair by virtue of the cumulative constitutional errors.” (Id. at 44-45.)

         II. Legal Standard

         28 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; or
(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.

28 U.S.C. § 2254(d).

         A 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 applies “clearly established federal law” in an “objectively unreasonable” manner. Id. at 410. 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 411.

         “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         To obtain habeas relief, 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 must be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision reasonable. See Woods v. Etherton, __ U.S. __, 136 S.Ct. 1149, 1152 (2016).

         III. Analysis

         Petitioner has raised a number of issues in his petition, and respondent argues that at least some of his claims are procedurally defaulted. Petitioner has also asked for an evidentiary hearing. Each of these issues is discussed in detail below.

         A. Procedural Default

         Respondent argues that many of Petitioner's claims are procedurally defaulted either because he failed to preserve them during trial or because he raised the claims for the first time in his motion for post-conviction review and failed to show cause or prejudice, as required by Mich. Ct. R. 6.508(D), that would excuse him for failing to raise the claims on direct appeal.

         The Supreme Court has held there is no rule “that the procedural-bar issue must invariably be resolved first” or before the merits of the potentially defaulted claims. Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” Id. Thus, a federal court may “proceed directly to the merits of [the] claim” when “the question of procedural default presents a complicated question of [state] law” or “is unnecessary to [the] disposition of the case.” Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003).

         In this case, many of the allegedly procedurally-defaulted claims are similar or related to the non-defaulted claims. As set forth below, consideration of the non-defaulted claims will dispose of the allegedly defaulted claims and all of the claims lack merit, making the procedural default issue “unnecessary to [the] disposition of the case.” Hudson, 351 F.3d at 216. Accordingly, the Court will adjudicate the merits of all of Petitioner's claims.

         B. Ineffective Assistance of Counsel

         Petitioner first alleges he was denied the effective assistance of trial counsel for numerous reasons, as set forth below.

         To show that he was denied the effective assistance of counsel, a defendant must satisfy a two-prong test. First, the petitioner must demonstrate that, considering all of the circumstances, counsel's performance was so deficient “that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the petitioner must overcome a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Second, the petitioner must demonstrate prejudice by showing “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Strickland's test for prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just conceivable.'” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112).

         And on habeas review of state court determinations, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, pursuant to 28 U.S.C. § 2254(d)(1), “doubly deferential judicial review” applies to a Strickland claim brought by a habeas petitioner, id., and “a state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101.

         Because of this doubly deferential standard, the Supreme Court has indicated that:

Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable ...

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