United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Carl
Hough, (Petitioner), is currently on parole supervision
through the Michigan Department of Corrections. In 2006,
Petitioner was convicted of operating a motor vehicle while
intoxicated and causing a serious impairment of another
person's body function (OWI), M.C.L. § 257.625(5),
driving without a valid license and causing a serious
impairment of another person's body function, M.C.L.
§ 257.904(5), ten counts of false certification under
Michigan's vehicle code, M.C.L. § 257.903(1), one
count of false representation, M.C.L. § 28.293(1), felon
in possession of a firearm, M.C.L. § 750.224f, and
possession of a firearm during the commission of a felony,
M.C.L. § 750.227b. In 2010,  Petitioner was sentenced as
a third habitual offender to concurrent terms of 3 to 10
years, 2-5 years, all of which were consecutive to a 2 year
sentence for the felony firearm conviction.
the Court is Petitioner's pro se petition for a
writ of habeas corpus, claiming that his constitutional
rights have been violated. He raises eleven claims.
Respondent, through the Attorney General's Office, filed
a response, arguing that petitioner's claims are
meritless or procedurally defaulted. For the reasons that
follow, the petition will be denied.
his sentencing, Petitioner filed an appeal of right, in which
he raised what now make up the first seven claims in his
petition. The Michigan Court of Appeals affirmed his
conviction and sentence. People v. Hough, No.
302132, 2013 WL 163820 (Mich. Ct. App. Jan. 15,
2013)(Shapiro, J., dissenting). Petitioner filed an application
for leave to appeal to the Michigan Supreme Court. None of
the justices voted to grant leave. People v. Hough,
495 Mich. 934 (2014).
then filed a post-conviction motion for relief from judgment,
raising what now make up his eighth through eleventh claims.
The trial court denied the motion. People v. Hough,
No. 06-008265-01 (Wayne Cty. Cir.Ct. Mar. 17, 2015). The
Michigan appellate courts denied leave to appeal. People
v. Hough, No. 327702 (Mich. Ct. App. July 9, 2015);
lv. den. 499 Mich. 926 (2016).
seeks a writ of habeas corpus on the following grounds:
I. The trial court abused its discretion when it reopened the
proofs to allow the jury to view a forced showing of
petitioner's scars, especially when the showing entailed
more view than was originally shown to the jury during trial.
II. The prosecutor committed misconduct when he submitted the
verbatim contents of the police report into the record and
expanded on the report beyond that provided at trial during
III. Petitioner allegedly caused a serious car accident and
separately possessed fraudulent Secretary of State documents
and some guns in a house while being a felon. The events were
unrelated under Michigan law and it was prejudicial error and
a denial of due process to join the two matters in one trial.
IV. Petitioner was denied his due process right to a fair
trial when the prosecutor asked about “suspected
marijuana” that was allegedly seized during the
execution of the search warrant but destroyed by the police,
mentioning the suspected marijuana in closing, and
insinuating to the jury that the guns seized were not for
hunting but for a criminal purpose.
V. Petitioner was denied the effective assistance of his
attorney where his counsel failed to object to the prosecutor
misconduct referenced in the previous issue.
VI. The evidence was insufficient to support the
felony-firearm conviction, because the Legislature did not
intend for felon-in-possession to be used as the basis of a
VII. The seizure of the guns exceeded the scope of the search
warrant and was not justified by the plain view exception
because the guns were not immediately and apparently illegal,
thus violating petitioner's Fourth Amendment rights.
VIII. Petitioner is entitled to relief from the judgment of
his conviction[s] because the trial court erred in allowing
the jury during its deliberations to consider extrinsic
information depriving petitioner of his right to a fair
trial, also denying petitioner of his Fifth Amendment right
to be free from self-incrimination, and his Sixth Amendment
right of confrontation, of cross-examination.
IX. Petitioner is entitled to relief from judgment on his
conviction[s] because he was denied effective assistance of
X. Petitioner is entitled to relief from judgment of his
conviction[s] because his due process right to a fair trial
was violated by the prosecutor's untimely disclosure of
XI. Petitioner is entitled to relief from judgment of his
convictions, due to vindictive prosecution, selective
prosecution, prosecutorial delay, and due process violations.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on
habeas review under 28 U.S.C. § 2254(e)(1). See
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arose out of a traffic accident that occurred in
2004. Detroit Police Officer Mitchell Quinn responded to the
scene of the accident to discover two people trapped inside a
car that had crashed into a utility pole; the “entire
front end of the car was smashed.” Quinn identified
defendant as the driver. At the hospital, defendant
identified himself to Quinn as Lashawn Scott Key and
indicated that “he had left the bar, ” passed out
while driving, and “didn't know what
happened.” Quinn recalled that defendant smelled of
alcohol, had bloodshot eyes and spoke in a slurred manner.
Quinn left the hospital to acquire a “search warrant to
get blood drawn” from defendant, but on Quinn's
return defendant “had checked himself out of the
hospital.” Quinn performed a search for records of
“Lashawn Scott Key” and found that
“Key's” driving record “showed an
individual ... in his late 30's that obtained a
driver's license somewhere in his early 30's, ”
when most Michigan residents acquired driver's licenses
at age 16. Quinn deemed this a “red flag” that
“didn't make any sense, ” and “the
further I got to digging into it the more things began to
unravel that the person that identified himself as Lashawn
Scott Key was not Lashawn Scott Key.” Quinn's
further investigations, which included photographs from the
Secretary of State and the LEIN network, a birth certificate,
and conversing with defendant, eventually resulted in
defendant providing Quinn with his real name.
Quinn determined that multiple vehicles and driver's
licenses began all pointing to a single address where
defendant lived. Quinn executed a search warrant at that
residence, looking for “fraudulently obtained
identification cards, driver's licenses, any paper work
and/or vehicles.” He found mail in both defendant's
name and the name of Lashawn Scott Key, including a hospital
bill addressed to Key, two rifles, and several boxes of
There were items of mail addressed to other names, as well.
Defendant met with Quinn later that day, offering to turn
himself in; he admitted that he acquired the guns for
protection and got the driver's licenses to drive, and he
wanted to be done with “these games.” Quinn also
noted that he did not need defendant to have admitted to
being Lashawn Scott Key because he had “certified
documents from the Secretary of State to prove who he
is.” The photographs on several driver's license or
state identification cards, including defendant's and one
for Lashawn Scott Key, were all determined to be of the same
Another of those items of proof was a LEIN entry indicating
that defendant had noticeable scarring to his upper chest.
Apparently-the testimony is not completely clear as to
how-Quinn and several other officers personally verified that
defendant did in fact have the described scarring, which
Quinn described as “appear[ing] to be some sort of
bullet wound.” At trial, during Quinn's
cross-examination, defense counsel had defendant lift up his
shirt, which revealed no scarring on defendant's chest.
The jury was provided with a copy of defendant's medical
records from his treatment a t the hospital after the
accident. We have unfortunately not had the benefit of
receiving a copy of the trial exhibits, and no clear
description was provided on the record, but we infer that
those records apparently indicated that defendant had some
kind of prior scarring somewhere on his upper torso area.
After the close of proofs and during jury deliberations, the
jury sent a note asking to see the lacerations. Rather than
ordering defendant to lift his shirt again, the trial court
ordered defendant to remove his shirt entirely, revealing
scarring to, apparently, defendant's upper left arm.
People v. Hough, 2013 WL 163820, at * 1-2 (internal