United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING
AND FOR THE APPOINTMENT OF COUNSEL, AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE.
Roby, (“petitioner”), presently confined at the
Muskegon Correctional Facility in Muskegon, Michigan, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his conviction for
assault with intent to commit murder, Mich. Comp. Laws,
§ 750.83; carrying a weapon with unlawful intent, Mich.
Comp. Laws, § 750.226; felon in possession of a firearm,
Mich. Comp. Laws, § 750.224f; and felony-firearm, Mich.
Comp. Laws, § 750.227b. For the reasons that follow, the
petition for writ of habeas corpus is DENIED.
was convicted following a jury trial in the Saginaw County
Circuit Court. This Court recites verbatim the relevant facts
regarding petitioner's conviction from the Michigan Court
of Appeals's opinion, which are presumed correct on
habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th
This case arises out of a shooting incident that occurred on
the morning of April 24, 2009. Cornelius Owens testified that
at approximately 10:15 a.m. that morning, he was walking his
dog into his backyard after visiting with his neighbors. As
he entered the backyard, he encountered Roby, who began
shooting at him. Owens ran out of the yard and across the
street as Roby gave chase and continued to shoot at him.
Roby's gun then became jammed, which gave Owens a chance
to hide behind a garage. Having apparently lost track of
Owens, Roby then left the scene. Owens suffered several
gunshot wounds, for which he was treated at the hospital. The
shooting was allegedly in retaliation for a recent
altercation that had occurred between Owens and two other men
from the neighborhood.
Owens's testimony was corroborated by eye witness Maurice
Harris, who testified that he saw Roby chasing and shooting
at Owens. Further, Detective Jason Ball, who the trial court
qualified as an expert in forensic analysis of cellular data,
testified that a cellular phone believed to be in Roby's
possession on the morning of April 24th was tracked as having
been in the vicinity of the shooting between approximately
9:30 and 10:30 a.m.
Roby testified in his own defense and denied any involvement
in the shooting. He testified that he was asleep at his
girlfriend's house until approximately 10:40-11:00 a.m.
Roby also testified that the cellular phone that was
introduced into evidence as allegedly belonging to him
actually belonged to his brother. And although Roby admitted
that he sometimes used his brother's phone, he denied he
had possession of it on the day of the shooting. However,
Roby's girlfriend contradicted his testimony, testifying
that he had that phone with him when she saw him on the
afternoon of April 24, 2009.
People v. Roby, No. 301608, 2011 WL 5067252, at * 1
(Mich. Ct. App. Oct. 25, 2011).
conviction was affirmed on appeal. Id., lv. den. 491
Mich. 909; 810 N.W.2d 907 (2012).
filed a post-conviction motion for relief from judgment,
which was denied. People v. Roby, No. 09-032607-FC
(Saginaw Cty.Cir.Ct., July 2, 2014). The Michigan appellate
courts denied petitioner leave to appeal. People v.
Roby, No. 324411 (Mich.Ct.App. Mar. 12, 2015); lv.
Den. 499 Mich. 913, 827 N.W.2d 287 (2016).
filed a petition for writ of habeas corpus, seeking relief on
the following grounds:
I. Where newly discovered evidence demonstrates
Petitioner's actual innocence, should this gateway
showing provide equitable tolling?
II. The state court erred constitutionally when it allowed an
unqualified expert to testify.
III. Defense counsel was constitutionally ineffective for
failing to request a stipulation that Mr. Roby was ineligible
to possess a firearm and not objecting to testimony of his
parole and prior prison status[.]
IV. The prosecutor's numerous instances of prosecutorial
misconduct deprived Petitioner of a fair trial, hence, habeas
relief is appropriate under both, 28 USC 2254(d)(1)-(2).
V. The trial court's instruction to the jury that they
may infer that Petitioner's intent to kill the victim
could be proved if he used a dangerous weapon violated his
Sixth Amendment rights and the Morissette v United
States, 342 U.S. 246 (1952), decision.
VI. Petitioner was denied his right to effective assistance
of counsel due to counsel's failure to investigate and
call several eyewitnesses who would have testified that
Petitioner was not the shooter.
VII. Petitioner was denied the right to effective assistance
of appellate counsel contrary to the Sixth Amendment which
resulted in issues with substantial merit being overlooked
which was prejudicial to Petitioner's appeal of right,
had the issues been raised Petitioner's conviction would
have been vacated.
filed a motion to dismiss the petition on the ground that it
was filed outside of the one year statute of limitations
contained in 28 U.S.C. § 2244(d)(1). This Court denied
the motion to dismiss, finding that the petition was timely
filed. Respondent was ordered to file an answer addressing
the merits of the petition within sixty days of the
Court's order. Roby v. Burt, No. 2:16-CV-12727,
2017 WL 1091257 (E.D. Mich. Mar. 23, 2017).
has now filed an answer to the petition. Petitioner filed a
reply to the answer as well as a motion for an evidentiary
hearing and for the appointment of counsel.
Standard of Review
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:
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.
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 decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. 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 410-11. “[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)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). The Supreme Court has emphasized “that
even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id. at 102 (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)).
pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme
this standard is difficult to meet, that is because it was
meant to be.” Harrington, 562 U.S. at 102.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA,
does not completely bar federal courts from relitigating
claims that have previously been rejected in the state
courts, it preserves the authority for a federal court to
grant habeas relief only “in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with” the Supreme
Court's precedents. Id. Indeed, “Section
2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state
criminal justice systems, ' not a substitute for ordinary
error correction through appeal.” Id. at
102-03 (citing Jackson v. Virginia, 443 U.S. 307,
332, n. 5 (1979))(Stevens, J., concurring in judgment)).
Therefore, in order to obtain habeas relief in federal court,
a state prisoner is required to show that the state
court's rejection of 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.
Claim # 1. The newly discovered evidence claim.
first claims that he has newly discovered evidence in the
form of affidavits from Mr. Patrick Atkins and Mr. Johnny
King that establishes his actual innocence, so as to
equitably toll the limitations period in this case.
Court previously determined that the petition was timely
filed, thus, any equitable tolling argument is now moot and
need not be addressed by the Court. See e.g. Scott v.
Collins, 286 F.3d 923, 931 (6th Cir. 2002).
extent that petitioner raises a freestanding actual innocence
claim, he is not entitled to habeas relief.
Herrera v. Collins, 506 U.S. 390, 400 (1993), the
Supreme Court held that a habeas petitioner's claim of
actual innocence based on newly discovered evidence fails to
state a claim for habeas relief in the absence of any
independent constitutional violation occurring in the
underlying state criminal proceeding. Federal habeas courts
sit to ensure that individuals are not imprisoned in
violation of the constitution, not to correct errors of fact.
Id., see also McQuiggin v. Perkins, 133 S.Ct. 1924,
1931 (2013)(“We have not resolved whether a prisoner
may be entitled to habeas relief based on a freestanding
claim of actual innocence”). Freestanding
claims of actual innocence are non-cognizable on federal
habeas review. See Cress v. Palmer, 484 F.3d 844,
854-55 (6th Cir. 2007)(collecting cases).
Petitioner is not entitled to relief on any such claim.
Claim # 2. The expert witness claim.
next contends that the trial court judge erred in ruling that
Detective Jason Ball could testify as an expert on cellular
phone data, because Detective Ball lacked the qualifications
to testify as an expert and his testimony was not supported
by the requisite underlying data.
Michigan Court of Appeals rejected petitioner's claim:
During trial, defense counsel requested a separate record in
order to question Saginaw City Police Department Detective
Jason Ball regarding his expertise in forensic analysis of
cellular data. Detective Ball testified that he had received
special training relating to forensic analysis of cellular
data. He explained that, although he had no formal
certification, in October 2007, he took a two-day training
class on the subject. Detective Ball claimed that at that
time, that class was the only training available for forensic
data analysis of cellular phones. He further explained that
during that training he learned about the history of cell
phones and cellular service systems, how to retrieve and
analyze data that is stored by cell phone companies, and how
to track cell phones to pinpoint locations at the time of
usage. Detective Bell stated that, since that training, he
had worked on numerous cases in which he was asked to analyze
data to determine “where a particular cell phone was at
the time that certain calls were made[.]” And in one
homicide case, he testified at trial regarding the location
of several cell phones at the time of the murder, which led
to several convictions.
Detective Ball then testified regarding the process of his
data analysis. According to Detective Bell, he first looks at
the phone records provided by the servicing company, in this
case Sprint Nextel. Each company's records are different,
but, based on his training, he is able to decipher when
certain calls were sent or received, and when each call
ended. Based on those records he then looks at global
positioning system (GPS) coordinates to locate the specific
tower(s) through which the call was sent. Detective Ball also
testified that, although he was not an engineer, he was
capable of testifying to signal strength of towers in order
to determine which tower a call would most likely “hit[
] off” at any particular location.
Defense counsel objected to Detective Ball being qualified as
an expert, taking issue with that fact that Detective Ball
could not determine what tower a call hit off of without
looking at other records that were not admitted into
evidence. However, after noting ...