United States District Court, E.D. Michigan, Southern Division
Steven Whalen, Mag. Judge
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS , DENYING THE MOTION FOR AN EVIDENTIARY
HEARING , AND DENYING A CERTIFICATE OF
E. Levy, United States District Judge
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.
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
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.
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.
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).
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
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.)
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.
28 U.S.C. § 2254(d).
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.
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)).
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).
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.
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
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).
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.
Ineffective Assistance of Counsel
first alleges he was denied the effective assistance of trial
counsel for numerous reasons, as set forth below.
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).
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.
of this doubly deferential standard, the Supreme Court has
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