United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Kristofferson Tyrone Thomas presently is incarcerated at the
Carson City Correctional Facility. Following a jury trial in
the Ingham County Circuit Court, Petitioner was convicted of
one count each of being a felon in possession of a firearm
(felon in possession), Mich. Comp. Laws § 750.224f,
assault with a dangerous weapon (felonious assault), Mich.
Comp. Laws § 750.82, assault with intent to murder,
Mich. Comp. Laws § 750.83, and possession of a firearm
during the commission of a felony (felony firearm), Mich.
Comp. Laws § 750.227b. On March 11, 2015, the trial
court sentenced him, as fourth-offense felony offender, Mich.
Comp. Laws § 769.12, to respective terms of imprisonment
of 10 to 25 years, 10 to 15 years, 28 to 60 years, and 2
appealed his convictions to the Michigan Court of Appeals.
Appellate counsel raised two issues, and Petitioner filed a
pro per supplemental brief that raised a third multipart
I. Defendant was denied a fair trial because detective Brad
St. Aubin expressed the opinion, with no basis in fact, that
a cell phone associated with Chanel Long was in fact the
defendant's cell phone, and to the extent that
defendant's trial attorney did not object to detective
St. Aubin's opinions, the defendant was denied his
constitutional right to effective assistance of counsel.
II. The testimony of detective Lee McAllister and his maps
were inadmissible under mre 702 and the defendant as a result
was denied a fair trial and to the extend that
defendant's trial attorney did not object to detective
McAllister's testimony, the defendant was denied his
constitutional right to effective assistance of counsel.
III. Trial counsel rendered ineffective assistance when (a)
failed to properly investigate, and call Karen Allen to
authenticate her e-mail/text message and question Olympia
Mack regarding her receipt of Allen's e-mail/text
message; (b) failing to impeach D. Wayne Hobbs with firearm
conviction in relation to prior testimony; and (c) failing to
investigate feed from city camera(s) near the 5700 of
Richwood at the time of the shooting.
(Pet., ECF No. 1, PageID.7, 9, 11.) In an unpublished opinion
issued on June 21, 2016, the court of appeals denied all
appellate grounds and affirmed the convictions. Petitioner
sought leave to appeal to the Michigan Supreme Court, raising
the same three issues. In an order issued on November 30,
2016, the supreme court denied leave to appeal. Petitioner
filed his habeas petition on May 22, 2017, raising the same
three grounds presented to and rejected by the Michigan
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The
AEDPA has “drastically changed” the nature of
habeas review. Bailey v. Mitchell, 271 F.3d 652, 655
(6th Cir. 2001). An application for writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication: “(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 upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is
“intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015)
(internal quotation marks omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3d at 655. In determining whether
federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Lopez v.
Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d
at 655. Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus,
the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 132 S.Ct. at 44).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 2015 WL
1400852, at *3 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S., 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).
the state appellate court has issued a summary affirmance, it
is strongly presumed to have been made on the merits, and a
federal court cannot grant relief unless the state
court's result is not in keeping with the strictures of
the AEDPA. See Harrington, 562 U.S. at 99; see
also Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013);
Werth v. Bell, 692 F.3d 486, 494 (6th Cir. 2012)
(applying Harrington and holding that a summary
denial of leave to appeal by a Michigan appellate court is
considered a decision on the merits entitled to AEDPA
deference). The presumption, however, is not irrebuttable.
Johnson, 133 S.Ct. at 1096. Where other
circumstances indicate that the state court has not addressed
the merits of a claim, the court conducts de novo
review. See Id. (recognizing that, among other
things, if the state court only decided the issue based on a
state standard different from the federal standard, the
presumption arguably might be overcome); see also
Harrington, 562 U.S. at 99-100 (noting that the
presumption that the state-court's decision was on the
merits “may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely”); Wiggins v. Smith, 539 U.S. 510,
534 (2003) (reviewing habeas issue de novo where
state courts had not reached the question).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing
standards under the AEDPA, I find that Petitioner is not
entitled to relief.
Admission of Lay Opinion Testimony
first ground for habeas relief, Petitioner alleges that he
was denied a fair trial when Detective Brad St. Aubin was
permitted to introduce lay opinion testimony when St. Aubin
indicated his belief that the purpose of one of
Petitioner's jailhouse telephone calls was to obtain an
alibi. The Michigan Court of Appeals rejected his claim as
Defendant first argues that he was denied his right to a fair
trial based on the admission of impermissible lay witness
testimony. We disagree. Defendant objected to detective Brad
St. Aubin's testimony that St. Aubin believed the purpose
of one of defendant's jailhouse phone calls was to obtain
an alibi. Defendant's remaining claims of error,
including his due process claim, were unpreserved because
defendant failed to object at trial. People v. Metamora
Water Serv, Inc, 276 Mich.App. 376, 382; 741 N.W.2d 61
(2007). “Preserved evidentiary rulings are reviewed for
an abuse of discretion.” People v. Unger, 278
Mich.App. 210, 216; 749 N.W.2d 272 (2008). “Unpreserved
claims of evidentiary error are reviewed for plain error
affecting the defendant's substantial rights.”
People v. Benton, 294 Mich.App. 191, 202; 817 N.W.2d
599 (2011). We also review unpreserved constitutional claims
for plain error. People v. Thomas, 260 Mich.App.
450, 453-454; 678 N.W.2d 631 (2004).
opinion testimony, such as that at issue here, is permitted
pursuant to MRE 701, which provides:
If a witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based
on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the
determination of a fact in issue.
Defendant first complains of St. Aubin's testimony
regarding a phone call defendant made in jail, arguing that
the testimony was not based on fact. During trial, St. Aubin
testified that defendant told him that he was at a birthday
party on the evening of the shooting, but he would not give
St. Aubin the names of others at the birthday party or its
location. Olympia Mack testified at trial that defendant was
at her daughter's birthday party at the time of the
offense, thereby providing an alibi for defendant. On
rebuttal, St. Aubin testified regarding a phone call
defendant made in jail where he spoke to a female, presumably
his girlfriend Chanel Long. Defendant asked her to contact a
person named “O, ” and “pull down on
her.” St. Aubin explained that “pull down on
her” “can mean pull somebody off to the side to
leverage them alone by themselves, ” or “[i]t
could be threaten somebody, ” or that “[i]t could
be just reach out to that person.” St. Aubin thereafter
testified that he believed “O” referred to Mack
and that defendant was trying to obtain an alibi from Mack.
Based on the record, we conclude that St. Aubin's
testimony was rationally based on his perceptions and no
error occurred. Additionally, St. Aubin made clear to the
jury that he did not know for certain who “O” was
and that his testimony was merely his opinion.
People v. Thomas, No. 326645, 2016 WL 3421403, at *1
(June 21, 2016).
extraordinary remedy of habeas corpus lies only for a
violation of the Constitution. 28 U.S.C. § 2254(a). As
the Supreme Court explained in Estelle v. McGuire,
502 U.S. 62 (1991), an inquiry whether evidence was properly
admitted or improperly excluded under state law “is no
part of the federal court's habeas review of a state
conviction [for] it is not the province of a federal habeas
court to re-examine state-court determinations on state-law
questions.” Id. at 67-68. Rather, “[i]n
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Id.
at 68. State-court evidentiary rulings cannot rise to the
level of due process violations unless they offend
“‘some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.'” Seymour v. Walker, 224 F.3d
542, 552 (quoting Montana v. Egelhoff, 518 U.S. 37,
43 (1996)) (other internal quotations omitted); accord
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003);
Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir.
2001). This approach accords the state courts wide latitude
in ruling on evidentiary matters. Seymour, 224 F.3d
at 552 (6th Cir. 2000).
under the AEDPA, the court may not grant relief if it would
have decided the evidentiary question differently. The court
may only grant relief if Petitioner is able to show that the
state court's evidentiary ruling was in conflict with a
decision reached by the Supreme Court on a question of law or
if the state court decided the evidentiary issue differently
than the Supreme Court did on a set of materially
indistinguishable facts. Sanders v. Freeman, 221
F.3d 846, 860 (6th Cir. 2000).
has not met this difficult standard. No Supreme Court
decision either holds or suggests that the admission of lay
opinion testimony violates due process. As a consequence, the
admissibility of the evidence is purely one of state law, not
cognizable on habeas review. Estelle, 502 U.S. at
67-68. The decision of the state courts on a state-law issue
is binding on a federal court. See Wainwright v.
Goode, 464 U.S. 78, 84 (1983); see also Stumpf v.
Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (holding
that “‘a state court's interpretation of
state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in
habeas corpus.'”) (quoting Bradshaw, 546
U.S. at 76).
to the extent that Petitioner argues that his attorney erred
by not objecting to the testimony on due process grounds, his
claim is wholly without merit. In Strickland v.
Washington, 466 U.S. 668, 687-88 (1984), the Supreme
Court established a two-prong test by which to evaluate
claims of ineffective assistance of counsel. To establish a
claim of ineffective assistance of counsel, the petitioner
must prove: (1) that counsel's performance fell below an
objective standard of reasonableness; and (2) that
counsel's deficient performance prejudiced the defendant
resulting in an unreliable or fundamentally unfair outcome. A
court considering a claim of ineffective assistance must
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that
the challenged action might be considered sound trial
strategy. Id. (citing Michel v. Louisiana,
350 U.S. 91, 101 (1955)); see also Nagi v. United
States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that
counsel's strategic decisions were hard to attack). The
court must determine whether, in light of the circumstances
as they existed at the time of counsel's actions,
“the identified acts or omissions were outside the wide
range of professionally competent assistance.”
Strickland, 466 U.S. at 690. Even if a court
determines that counsel's performance was outside that
range, the defendant is not entitled to relief if
counsel's error had no effect on the judgment.
Id. at 691.
cannot meet the first prong of the Strickland
standard. As discussed, Petitioner had no due process right
to exclude lay opinion testimony. As a result, any motion
would have been meritless. Counsel's failure to make a
frivolous or meritless motion does not constitute ineffective
assistance of counsel. See Smith v. Bradshaw, 591
F.3d 517, 523 (6th Cir. 2010); O'Hara v.
Brigano, 499 F.3d 492, 506 (6th Cir. 2007);