United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS; (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSON TO APPEAL IN FORMA
V. PARKER U.S. DISTRICT JUDGE
Andrew Clark, (“Petitioner”), confined at Saginaw
Correctional Facility in Freeland, Michigan, filed a pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his application, Petitioner challenges
his conviction for first-degree murder, Mich. Comp. Laws
§ 750.316; unlawful driving of an automobile, Mich.
Comp. Laws § 750.413; arson of personal property, Mich.
Comp. Laws § 750.74(1)(b)(i); and larceny in a building,
Mich. Comp. Laws § 750.360. For the reasons stated
below, the petition for a writ of habeas corpus is DENIED
was convicted after a jury trial in the Macomb County Circuit
Court and sentenced to life imprisonment for the murder
conviction and lesser terms of years for his other
convictions. This 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 was convicted of murdering Robert Miller, who died
from multiple stab wounds. Miller's body was discovered
inside his condominium. An autopsy revealed that he had been
stabbed 132 times and sustained other blunt force injuries.
Miller's car was missing from his house after the
offense, and was later discovered burning less than a mile
from defendant's home.
Defendant's DNA profile matched DNA taken from items
located at the crime scene. Telephone records showed that
defendant and Miller were in telephone contact in the weeks
leading up to the offense and that defendant was the last
person who called Miller on the night of the offense. A cell
phone “ping search” placed defendant and Miller
together on the night of the murder. A handwritten note was
found at the crime scene which stated, “He said tell
the family he loved them. Sincerely, ‘The
Killer.'” A forensic document examiner testified
that the writing on the note was consistent with
defendant's writing. A diamond studded earring was found
at the crime scene, which matched another earring found
during a search of defendant's residence. In a recorded
jailhouse telephone conversation, defendant told his brother
that he killed Miller during a “robbery” that he
set up. The police found receipts at defendant's home
indicating that he had pawned Miller's wedding rings, and
pawnshop business records also identified defendant as the
person who pawned the rings. Surveillance video showed
defendant's friend buying a gas can and gasoline a short
distance from where the car was found. Miller's computer
equipment was found in the trunk of the burned car. After
defendant was arrested, he gave a police interview in which
he claimed that he killed Miller in self-defense after Miller
made unwanted sexual advances toward him.
People v. Clark, No. 310253, 2013 WL 6670834, at *1
(Mich. Ct. App. Dec. 17, 2013).
his sentencing, Petitioner was appointed appellate counsel
who filed a claim of appeal in the Michigan Court of Appeals.
Appellate counsel filed a brief on appeal raising two claims:
(1) Petitioner is entitled to a new trial where the trial
court erred in failing to suppress his statement, and (2)
Petitioner is entitled to a new trial where the closing
arguments of the prosecutor were improper. Id. at
*1-2. The Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. Id. Petitioner
did not appeal this decision to the Michigan Supreme Court.
subsequently filed a motion for relief from judgment in the
trial court, raising the same five claims that he raises in
the present action. (ECF No. 12-16.) The trial court denied
the motion for relief from judgment in an opinion dated June
24, 2014, on the grounds that the claims were either barred
from review for Petitioner's failure to raise them on
direct appeal or because they were without merit. (ECF No.
then filed an application for leave to appeal in the Michigan
Court of Appeals. The Michigan Court of Appeals denied the
application for leave to appeal “for failure to
establish entitlement to relief under Michigan Court Rule
6.508(D).” People v. Clark, No. 322762 (Mich.
Ct. App. Oct. 3, 2014). Petitioner applied for leave to
appeal this decision in the Michigan Supreme Court, but that
court also denied relief under Rule 6.508(D). People v.
Clark, 864 N.W.2d 558 (Mich. 2015) (table).
seeks a writ of habeas corpus on the following grounds:
I. Whether defense counsel's performance or lack thereof
constitutes ineffective assistance of defense counsel?
II. Whether prosecutorial misconduct occurred during the
course of trial?
III. Whether appellate counsel's performance or lack
thereof constitutes ineffective assistance of ...