United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
SEAN F. COX, United States District Judge
matter has come before the Court on a pro se
application for the writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner Donald Jamal Isom
(“Petitioner”) challenges his convictions for:
second-degree murder, Mich. Comp. Laws § 750.317;
conspiracy to commit armed robbery, Mich. Comp. Laws §
750.157a, Mich. Comp. Laws § 750.529; attempted armed
robbery, Mich. Comp. Laws § 750.92, Mich. Comp. Laws
§ 750.529; felon in possession of a firearm, Mich. Comp.
Laws § 750.224f; carrying a concealed weapon (CCW),
Mich. Comp. Laws § 750.227; and four counts of
possessing a firearm during the commission of a felony
(felony firearm), Mich. Comp. Laws § 750.227b.
Petitioner alleges as grounds for relief allege that: (1) the
trial court erroneously denied his objections to the
prosecutor's use of peremptory challenges to remove two
African Americans from the venire; (2) there was insufficient
evidence to convict him of conspiracy to commit armed
robbery; (3) there was insufficient evidence to convict him
of murder; (4) he was denied a fair trial when a police
witness and the prosecutor commented on his silence during
questioning; (5) he was denied a fair trial by the improper
joinder of counts; (6) re-sentencing is required because the
trial court exceeded the sentencing guidelines without
offering any explanation; (7) trial counsel was ineffective;
(8) appellate counsel was ineffective for failing to raise a
claim about trial counsel's ineffectiveness; and (9) he
is entitled to an evidentiary hearing on his claims about
trial and appellate counsel.
Carmen Denise Palmer (“Respondent”) argues in an
answer to the habeas petition that Petitioner procedurally
defaulted his fourth and seventh claims and that the state
courts' rejection of Petitioner's claims did not
result in decisions that were contrary to federal law,
unreasonable applications of federal law, or unreasonable
determinations of the facts. The Court agrees with
Respondent's assessment of Petitioner's claims.
Accordingly, the habeas petition will be denied.
was charged in Saginaw County, Michigan with one count of
first-degree (felony) murder, one count of conspiracy to
commit armed robbery, two counts of attempted robbery, one
count of felon in possession of a firearm, one count of
carrying a concealed weapon, and five counts of felony
firearm. The charges arose from two incidents that occurred
early on August 26, 2006. As explained by the Michigan Court
of Appeals, the two incidents involved
the attempted robbery of Raychan Williams and the shooting
death of Darnell Eiland. The evidence at trial indicated that
on the night of the crimes, defendant and Prophet Phillips
were driving around with Doretha Ransom. The men went
together to Williams's apartment, where Phillips tried to
convince Williams to open the door by stating that he wanted
to buy drugs. When Williams refused to open the door,
defendant pointed a gun at him. Williams jumped away, and
defendant and Phillips returned to the car. Shortly
thereafter, the three drove to another home, ostensibly to
buy drugs. Defendant and Phillips went to the house while
Ransom waited in the car. Ransom heard gunshots, and then
defendant and Phillips returned to the car. Defendant had
been shot in the hand. Defendant gave Phillips a gun, and
then Phillips left. Ransom took defendant to the hospital.
While defendant was being treated, Eiland's body was
found. When the police came to the hospital to investigate
defendant's gunshot wound and to determine if the Eiland
death was related, defendant fled, but was apprehended
v. Isom, No. 284857, 2010 WL 1404430, at *1 (Mich. Ct.
App. Apr. 8, 2010).
did not testify, and his only witness was his sister,
Detrianna Barnes. Ms. Barnes testified that Petitioner called
her from the hospital at about 10:00 a.m. on August 26, 2006,
and again about 3:00 p.m. that day. She told Petitioner to
leave the hospital because somebody was going there to kill
Petitioner's defense was that he
was caught in an ambush, was not the shooter or that there
was enough reasonable doubt as to who was the shooter, that
one Jamaar Bates, who was at the scene just prior to the
shooting and who subsequently discovered the body of Mr.
Eiland when he returned later that morning, was more involved
in [the] killing than what he claimed, and that Williams and
Bates implicated [Petitioner] in the murder because of some
ongoing dislike or dispute.
People v. Isom, No. 07-028598 FC 4, Op. and Order
Denying Post-Appellate Relief, at 2 (Saginaw Cty. Cir. Ct.
July 27, 2011), ECF No. 9-20, Pg ID 1521.
February 14, 2008, the jury found Petitioner guilty of
second-degree murder, as a lesser-included offense of
first-degree murder, and the following additional offenses:
conspiracy to commit armed robbery, one count of attempted
robbery, felon in possession of a firearm, carrying a
concealed weapon, and four counts of felony firearm. The jury
acquitted Petitioner of one count of attempted robbery and
the related felony-firearm count. On March 20, 2008, the
trial court sentenced Petitioner to two years in prison for
the felony-firearm convictions, followed by concurrent terms
of sixty to ninety years in prison for the murder and
conspiracy convictions and five to ten years in prison for
the attempted-robbery, felon-in-possession, and CCW
initial appellate attorney filed a motion for new trial,
claiming that trial counsel was ineffective for failing to
request a jury instruction on self defense. Petitioner
subsequently wrote to the trial court and asked the court to
remove counsel from his case and strike counsel's motion
for new trial. The trial court then appointed a different
appellate attorney, who withdrew the motion for new trial and
raised Petitioner's first six habeas claims in his
appellate brief. A three-judge panel of the Michigan Court of
Appeals affirmed Petitioner's convictions, see
Isom, 2010 WL 1404430,  and on September 9, 2010, the
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the issues. See People v.
Isom, 488 Mich. 854; 787 N.W.2d 488 (2010).
subsequently filed a motion for relief from judgment in which
he raised his seventh and eighth habeas claims regarding
trial and appellate counsel. He claimed that trial counsel
was ineffective for failing to present a defense of self
defense, for failing to request a jury instruction on self
defense, and for failing to use or consult an expert witness.
He also asserted that appellate counsel was ineffective for
failing to raise a claim about trial counsel's
state trial court analyzed Petitioner's motion under
Michigan Court Rule 6.508(D)(3) and denied the
motion. Although the court opined that Petitioner
would have had a reasonable chance of acquittal if trial
counsel had requested a jury instruction on self defense, the
court nevertheless determined that Petitioner had not shown
“good cause” for failing to raise his
self-defense issues on appeal, because he resisted his first
appellate attorney's efforts to bring the issue before
the courts. See Isom, No. 07-028598 FC 4, Op. and
Order Denying Post-Appellate Relief, at 3-4 (Saginaw Cty.
Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1522-23.
moved for reconsideration of the trial court's order on
the basis that his appellate attorneys failed in their
obligations and duties to assist him in bringing his
self-defense claim before the Michigan Court of Appeals. In
an order denying Petitioner's motion, the trial court
determined that there was insufficient evidence to support a
claim of self defense and, therefore, Petitioner was not
entitled to such an instruction. The trial court concluded
that appellate counsel's failure to preserve the issue
for appeal was inconsequential. See People v. Isom,
No. 07-028598 FC 4, Op. and Order Denying Relief, at 3
(Saginaw County Cir. Ct. Apr. 2, 2012), ECF No. 9-22, Pg ID
appealed the trial court's decision without success. Both
the Michigan Court of Appeals and the Michigan Supreme Court
denied leave to appeal for failure to establish entitlement
to relief under Rule 6.508(D). See People v. Isom,
No. 312567 (Mich. Ct. App. Sept. 6, 2013); People v.
Isom, 495 Mich. 947; 843 N.W.2d 505 (2014). On April 11,
2014, Petitioner filed his habeas corpus petition in this
Standard of Review
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to §
2254, the Court may not grant a state prisoner's
application for the writ of habeas corpus unless the state
court's adjudication of the prisoner's claims on the
(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).
Under the “contrary to” clause [of §
2254(d)(1)], a federal habeas court may grant the writ 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. Under the
“unreasonable application” clause [of §
2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(O'Connor, J., opinion of the Court for Part II).
“[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. Rather, that
application must also be unreasonable.” Id. at
thus imposes a ‘highly deferential standard for
evaluating state-court rulings, ' Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997), and
‘demands that state-court decisions be given the
benefit of the doubt, ' Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).”
Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
‘In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct, '
unless rebutted by ‘clear and convincing evidence'.
28 U.S.C. § 2254(e)(1).” Holland v.
Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert.
denied, 136 S.Ct. 1384 (2016). Lastly, “review
under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170,
The Prosecutor's Use of Peremptory Challenges
who is an African American, alleges that the trial court
violated his right to equal protection of the law when the
court denied his objections to the prosecutor's use of
peremptory challenges to remove two African Americans from
the venire. According to Petitioner, the prospective jurors
in question (Johnny Green and Johnnie Sewell) answered the
prosecutor's questions appropriately and indicated that
they could follow the trial judge's instructions on the
evidence and the prosecutor's burden of proof. Petitioner
concludes that the trial court's findings - that he did
not make a prima facie case for discrimination and
that the prosecutor's explanations were adequate - were
Michigan Court of Appeals adjudicated Petitioner's claim
on the merits on direct appeal and determined that the
factual circumstances did not support Petitioner's claim
of discrimination. The Court of Appeals deferred to the trial
court's resolution of credibility issues and concluded
that the trial court's rulings were not clearly
erroneous. Judge Gleicher wrote a concurring opinion on the
issue and likewise concluded that no clear error existed.
Clearly Established Federal Law
clearly established federal law here is Batson v.
Kentucky, 476 U.S. 79 (1986). Under Batson
“and later decisions building upon Batson,
parties are constitutionally prohibited from exercising
peremptory challenges to exclude jurors on the basis of race,
ethnicity, or sex.” Rivera v. Illinois, 556
U.S. 148, 153 (2009). Batson provides a three-step
process for a trial court to use in adjudicating a claim that
a peremptory challenge was based on race:
“ ‘First, a defendant must make a prima facie
showing that a peremptory challenge has been exercised on the
basis of race[; s]econd, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the
juror in question[; and t]hird, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.' ”
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)
(alterations in original) (end citations omitted).
In addition to the highly deferential standard AEDPA imposes,
Batson claims are also subject to highly deferential
review. The trial court's decision on the ultimate
question of improper discriminatory intent is a finding of
fact to be accorded “great deference.”
Hernandez v. New York, 500 U.S. 352, 364-65, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality).
“Deference is necessary because a reviewing court,
which analyzes only the transcripts from voir dire,
is not as well positioned as the trial court is to make
credibility determinations.” [Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003)]; see also
Hernandez, 500 U.S. at 365, 111 S.Ct. 1859
(“[E]valuation of the prosecutor's state of mind
based on demeanor and credibility lies ‘peculiarly
within a trial judge's province.' ”) quoting
[Wainwright v. Witt, 469 U.S. 412, 428 (1985)]. In
addition, a Batson claim “presents a mixed
question of law and fact and ‘necessarily focuses on
the reasonableness of the decision of the state courts. . .
.' ” Braxton [v. Gansheimer, 561 F.3d 453,
458 (6th Cr. 2009)] (quoting Lancaster v. Adams, 324
F.3d 423, 429 (6th Cir. 2003)). The “question of
‘whether a prosecutor intended to discriminate on the
basis of race in challenging potential jurors is, as
Batson recognized, a question of historical
fact.' ” Lancaster, 324 F.3d at 429
(quoting Hernandez, 500 U.S. at 367, 111 S.Ct.
1859). Thus, the deference given to district courts
“must be modified in the context of a § 2254
petition to give credence to § 2254(e)(1)'s
requirement that facts found by a state court be presumed
correct unless the petitioner rebuts this presumption by
clear and convincing evidence.” Braxton, 561
F.3d at 458 (citing Lancaster, 324 F.3d at 429 n.1).
Bryan v. Bobby, 843 F.3d 1099, 1110-11 (6th Cir.
appellate Judge Gleicher summarized the relevant facts as
The prosecutor exercised his second peremptory challenge to
excuse Johnny Green, an African-American venireman. Defendant
timely raised a Batson challenge at sidebar after
the prosecutor peremptorily excused a second African-American
juror, Johnnie Sewell. The trial court excused the jury for
the afternoon and, before defense counsel had articulated a
Batson [challenge], the trial court announced,
“Now, I would like for [the prosecutor] to state his
nonracial reason so that I-.” The prosecutor
interjected that the defense “hasn't made a motion.
They need to make a motion, and then I'd like some time
to research the law.” The trial court adjourned to give
the parties and the court an opportunity to conduct legal
When court reconvened the next morning, defense counsel
explained as follows the basis for his Batson
So in . . . his first four challenges, including six passes,
two of the jurors that were excluded were black males, and it
just - given the tenor of the exam during voir dire and given
the challenges, it certainly created an appearance for me and
a concern for me that these jurors were being excluded
because they were black males and that there was nothing in
the record that came up during the voir dire that would . . .
cause any other reason - cause me to have any other reason to
form any other belief.
The prosecutor responded that “there is no prima facie
showing of a discriminatory purpose and . . . it's not a
jury constituted on race at all.” The prosecutor
nonetheless proceeded to relate race-neutral reasons for his
exclusions of Green and Sewell. The prosecutor claimed that
Sewell seemed “confused” by the concept of
circumstantial evidence, had an eleventh grade education, and
“looked confused” in general during the voir
dire. According to the prosecutor, Green “had indicated
quite candidly that as a 60-some-year-old black man raised in
the south he had issues with the police, ” and also
could not discern a distinction between “proof beyond a
reasonable doubt and proof beyond any shadow of a
Isom, 2010 WL 1404430, at *6 (Gleicher, J.,
concurring); see also Trial Tr. Vol. I, at 107-17,
Feb. 5, 2008), ECF No. 9-10, Pg ID 780-90; Trial Tr. Vol. II,
a.m. session, at 6-28, Feb. 6, 2008), ECF No. 9-11, Pg ID
Application of the Law
noted above, the first step in a Batson analysis is
determining whether a prima facie case has been
To establish such a case, the defendant first must show that
he is a member of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to remove from
the venire members of the defendant's race. Second, the
defendant is entitled to rely on the fact, as to which there
can be no dispute, that peremptory challenges constitute a
jury selection practice that permits “those to
discriminate who are of a mind to discriminate.”
Finally, the defendant must show that these facts and any
other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from
the petit jury on account of their race. This combination of
factors in the empaneling of the petit jury, as in the
selection of the venire, raises the necessary inference of
Batson, 476 U.S. at 96 (internal citations omitted).
undisputed in this case that Petitioner was a member of a
cognizable racial group and that the prosecutor exercised
peremptory challenges to remove members of Petitioner's
race from the venire. (Trial Tr. Vol. II, a.m. session, at
11-12, 18, Feb. 6, 2008), ECF No. 9-11, Pg ID 802-03. The
only question was whether the relevant circumstances raised
an inference that the prosecutor used a peremptory challenge
to excuse a juror on the basis of race.
prosecutor's denial of an impermissible motive did not
satisfy his burden of responding to a prima facie
case of purposeful discrimination. United States v.
Hill, 146 F.3d 337, 341 (6th Cir. 1998) (citing
Purkett v. Elem, 514 U.S. 765, 769 (1995)).
Nevertheless, he explained that the victim was a black male,
that every civilian witness in the case was an African
American, that some of the police officers and one of the
detectives were African Americans, and that the incident
occurred in a predominantly black neighborhood. Under the
circumstances, the prosecutor maintained that there would be
no purpose in excluding prospective jurors simply because
they were black. (Trial Tr. Vol. II, a.m. session, at 12-13,
Feb. 6, 2008), ECF No. 9-11, Pg ID 803-04.
trial court reasonably concluded from all the relevant
circumstances that Petitioner had not made a prima
facie showing that the prosecutor used a peremptory
challenge to excuse a prospective juror on the basis of race.
(Id. at 18-19, Pg ID 809-10.) Step one is satisfied.
trial court's finding that Petitioner failed to establish
a prima facie case of discrimination should have
been the end of the matter. The prosecutor, however,
requested an opportunity to make a record of the reasons for
his strikes, and the trial court permitted him to proceed.
The prosecutor then explained that Mr. Sewell had only an
eleventh grade education, he was confused by the notion of
circumstantial evidence and how to use it, and he appeared to
have a problem understanding the prosecutor's questions.
(Id. at 20-22, Pg ID 811-13.)
is a common race-neutral reason for striking prospective
jurors. United States v. Warren, 788 F.3d 805, 813
(8th Cir.), cert. denied, 136 S.Ct. 349 (2015). A
prospective juror's lack of education or limited
education also are valid race-neutral reasons for a
peremptory challenge. See United States v. Marin, 7
F.3d 679, 687 (7th Cir. 1993) (stating that “[a]
juror's lack of education has been deemed a proper
race-neutral explanation for peremptory strikes even where
all members of the minority group appear to have
been struck”); see also Rivers v. City of
Rochester, 856 F.Supp.2d 620, 624 (W.D. N.Y. 2012)
(rejecting a Batson claim where the reason given for
the strike was that the prospective juror's limited
education might prevent the person from understanding complex
Johnny Green, the prosecutor stated that Mr. Green seemed to
think proof “beyond a reasonable doubt” and proof
“beyond a shadow of a doubt” were the same. The
prosecutor also was troubled by the fact that Mr. Green
admitted to having issues with the police, and he thought
that Mr. Green might not be able to relate to the victims.
(Trial Tr. Vol. II, a.m. session, at 22-23, Feb. 6, 2008),
ECF No. 9-11, Pg ID 813-14. Although Mr. Green had said that
he could set aside his personal experiences (Trial Tr. Vol.
I, at 60, Feb. 5, 2008), Pg ID 733, a negative experience
with the police is an acceptable and race-neutral reason for
excusing a prospective juror. Jordan v. Lefevre, 206
F.3d 196, 200 (2d Cir. 2000).
prosecutor's explanations at step two of the
Batson process did not have to be “persuasive,
or even plausible, ” Elem, 514 U.S. at 767-68,
and because there was no inherent discriminatory intent in
his explanations, his reasons must be deemed race-neutral.
Id. (quoting Hernandez, 500 U.S. at 360).
Petitioner has failed to satisfy step two of the