United States District Court, E.D. Michigan, Southern Division
Judge Anthony P. Patti
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS , DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN
E. Levy United States District Judge
Travis Quan Owens, confined at the Macomb Correctional
Facility in New Haven, Michigan, has filed a pro se
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254. (Dkt. 1.) In his application, Petitioner
challenges his conviction of armed robbery, Mich. Comp. Laws
§ 750.529, on six grounds.
reasons set forth below, the petition for a writ of habeas
corpus is denied.
was convicted of armed robbery following a jury trial in the
Oakland County Circuit Court, and sentenced as a habitual
offender, fourth offense, to a term of twenty to forty years.
People v. Owens, No. 29-7315, 2011 WL 2464193, at *1
(Mich. Ct. App. June 21, 2011). This Court relies on the
facts recited by the trial court, which are presumed correct
pursuant to 28 U.S.C. § 2254(e)(1):
At trial, Defendant admitted to having committed the store
robbery and only denied that he was armed. The store was
equipped with multi-angle cameras that captured the entire
event on video. Thought it is clear from this Court's
videotaped proceedings that the video was shown to the jury,
the security video image is not visible on this Court's
video. The prosecutor took the victims through the video in a
narrative fashion and stopped at times to zoom in on the
The evidence showed that, on April 9, 2009, Defendant entered
the Advance America cash advance store in Pontiac, Michigan
to inquire about his account. He told the assistant manager,
Cynthia Miles, that his last name was “Owens” and
he recited eight of the nine digits of his social security
number. His account could not be located on the computer, yet
he remained in the store. The store manager, Shelly Hall,
eventually asked Defendant to leave, but he stayed.
After other customers left the store, Defendant grabbed Ms.
Hall by the shirt with his left hand, pulled her close to him
and put a knife that he was holding in his right hand to the
left side of her throat. Ms. Hall testified that she saw the
blade of the knife as Defendant brought it up to her throat
and felt it on her neck. Defendant ordered Ms. Miles to give
him the store's cash and when she hesitated, Defendant
threatened to cut Ms. Hall “real bad.” When Ms.
Miles put the money on a table, Defendant shifted his grip
and held both Ms. Hall's shirt and the knife with his
right hand while he reached down for the money with his left
hand, all the while keeping the blade to Ms. Hall's
throat. When he dropped some of the money, Ms. Hall leaned
down with him because he still held the knife to her throat.
Though she could not describe the handle of the knife, Ms.
Hall indicated the length of the blade with her hands. She
testified that she had no doubt in her mind that the object
Defendant held to her neck was a knife. She also stated that
Defendant told them that he had seen their faces and
threatened to kill the women if they called the police. Ms.
Miles testified that she believed Defendant reached out and
grabbed Ms. Hall's shirt with his left hand. Defendant
also ordered Ms. Miles to give him the cash or he would cut
Ms. Hall. Though she observed Defendant's hand at Ms.
Hall's throat, Ms. Miles did not observe a weapon because
Ms. Hall's hair was hanging down over her neck. Ms. Miles
testified that she gave Defendant the money because she did
not want Ms. Hall to be injured and that, based on the look
on Ms. Hall's face, she did not want to take a chance.
Ms. Miles also testified that Defendant threatened to come
back and kill the women if they called the police. The
testimony further showed that, after Defendant left the
store, the women called the police and gave their witness
statements. While the police were present, the women checked
the files in a filing cabinet and looked under the name
“Owens.” They discovered a photocopy of
Defendant's driver's license and his full social
security number, which matched the numbers Defendant had
given them. Defendant was arrested on a warrant and bound
over for trial. The jury verdict form listed the option of
finding Defendant guilty of the lesser offense of unarmed
(Opinion and Order, Oakland Cty. Cir. Ct. (Mar. 8, 2013).)
conviction was affirmed on appeal. Owens, 2011 WL
2464193. The Michigan Supreme Court denied his application
for leave to appeal. People v. Owens, 490 Mich. 913
(2011). Petitioner then filed a post-conviction motion for
relief from judgment pursuant to Mich. Ct. R. 6.500, which
was denied. People v. Owens, No. 09-226671-FC
(Oakland Cty. Cir. Ct. Mar. 8, 2013). The Michigan appellate
courts denied Petitioner leave to appeal. People v.
Owens, No. 318067 (Mich. Ct. App. Mar. 14, 2014);
lv. den. 497 Mich. 902 (2014); reconsideration
den. 497 Mich. 956 (2015).
seeks a writ of habeas corpus on the following grounds:
I. Defense trial counsel was constitutionally ineffective in
failing to object to the prosecutor vouching for the
complainant's credibility and making an improper civic
II. Defendant-Appellant was denied his Sixth Amendment right
to the effective assistance of appellate counsel and his
Fourteenth Amendment due process right to a full and fair
appeal of right where appellate counsel failed to raise
significant and obvious issues on his appeal of right.
III. Defendant-Appellant was denied his Sixth Amendment right
to the effective assistance of trial counsel and his Sixth
Amendment right to present a defense where the trial court
failed to obtain an expert witness to enhance the digital
video footage of the robbery, which, if investigated would
have shown that the defendant-appellant was carrying a money
IV. The failure of trial counsel to investigate
defendant's competence and medication use at the time of
trial denied defendant effective assistance.
V. Defendant's rights to trial by jury, due process and
the effective assistance of counsel were violated by the
inadequate responses of the trial court and defense counsel
to a juror who was apparently asleep during trial.
VI. The trial court violated defendant-appellant's due
process rights by failing to fully and properly administer
the jury oath in accordance with the governing statute and
(Dkt. 1 at 10.)
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:
An 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.
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). An
unreasonable application occurs when the state court's
decision is “more than incorrect or erroneous”;
“the state court's application must have been
‘objectively unreasonable.'” White v.
Woodall, U.S., 134 S.Ct. 1697, 1702 (2014) (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
 imposes a ‘highly deferential standard for
evaluating state-court rulings, ' . . . and
‘demands that state-court decisions be given the
benefit of the doubt.'” Renico v. Lett,
559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy,
521 U.S. 320, 333 n.7 (1997); Woodford v. Viscotti,
537 U.S. 19, 24 (2002) (per curiam); see also
Renico, 559 U.S. at 773 n.1 (noting that the Supreme
Court has historically viewed AEDPA's standard for
reviewing state court decisions as
“deferential”). Thus, pursuant to section
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 Court. Harrington v.
Richter, 562 U.S. 86, 102 (2011). “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.” Woods v. Etherton,
U.S., 136 S.Ct. 1149, 1151 (2016) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Finally, habeas
relief is not appropriate “unless each ground
that supported the state court's decision is examined and
found to be unreasonable under the AEDPA.” Wetzel
v. Lambert, 565 U.S. 520, 525 (2012) (emphasis in
Statute of Limitations
argues that this petition is barred by the statute of
limitations because it was not filed within the one-year
statute of limitations period imposed by 28 U.S.C. §
2244(d)(1). Further, Respondent argues that Petitioner is not
entitled to equitable tolling because his state-court
collateral attack was filed after the one-year statute of
limitations expired. (Dkt. 5 at 31-38.) Respondent also
argues that Petitioner has defaulted his third, fourth, and
fifth claims because he failed to raise the claims on direct
appeal. (Dkt. 5 at 39.)
the issue of whether a claim is procedurally barred should
ordinarily be resolved first, “judicial economy might
counsel giving the [merits] question priority, ” such
as where the merits issue is “easily resolvable”
and the procedural bar involves “complicated issues of
state law.” Lambrix v. Singletary, 520 U.S.
518, 525 (1997); Bales v. Bell, 788 F.3d 568, 573
(6th Cir. 2015). And because the statute of limitations is
not a jurisdictional bar to habeas review, a federal court
may, in the interest of judicial economy, proceed to the
merits of a habeas petition. LaMar v. Houk, 798 F.3d
405, 415 (6th Cir. 2015).
the petition is resolvable against Petitioner on the merits
regardless of the timeliness of the petition. Accordingly,
the Court will assume the petition was timely and proceed to
the other procedural default and merits arguments. See
Ahart v. Bradshaw, 122 F. App'x 188, 192 (6th Cir.