United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE.
Chenault, (“Petitioner”), confined at the Bellamy
Creek Correctional Facility in Ionia, Michigan, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his application, filed through his attorney,
Craig A. Daly, petitioner challenges his convictions for
first-degree felony murder, M.C.L.A. 750.316, and possession
of a firearm during the commission of a felony, M.C.L.A.
750.227b. For the reasons stated below, the petition for a
writ of habeas corpus is DENIED.
was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. This Court recites verbatim
the relevant facts relied upon by the Michigan Supreme Court
in affirming petitioner's conviction, 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):
The defendant's convictions for felony murder, MCL
750.316(1)(b), and possession of a firearm during the
commission of a felony, MCL 750.227b, arose out of the
shooting death of Kevin Harris in Pontiac, Michigan, on June
29, 2008. Harris was a cocaine dealer, who often used Jared
Chambers as a middleman to connect with buyers. Chambers
occasionally contacted Harris through Harris's
girlfriend, Heather Holloway.
On June 29, 2008, Chambers arranged a transaction between the
defendant and Harris. The defendant and Chambers, together
with several others, met Harris on a side street in Pontiac.
Harris pulled up behind the defendant's car. Holloway was
in Harris's passenger seat. As both Chambers and the
defendant approached Harris' car, shots were fired at
Harris, and he was struck in the head.
The Pontiac Police Department conducted an investigation and
interviewed Holloway on June 29 and July 2, 2008, and
Chambers on June 30, 2008. All of these interviews were video
recorded. Holloway also produced two written statements, one
after each interview, and Detective Steven Wittebort
summarized the interviews in an incident report.
Holloway's written statements and the police report
summarizing them were provided to defense counsel before
trial, but the video recordings were not.
Holloway was more forthcoming in her second interview than in
her first. At her first interview, Holloway told the police
that two unknown men walked up to the car and shot Harris.
During her second interview, which took place after Harris
died on June 30, 2008, Holloway said that Harris had been
shot as part of a drug deal. Although Holloway identified the
defendant in a photo array, neither of Holloway's written
statements mentioned Chambers's presence. According to
Wittebort's report, Holloway said that she did not get a
good look at the shooter but that she could identify him. The
report also revealed that she confidently selected the
defendant's photo from an array.
The defendant never denied that he was present at the scene
of the shooting, and most of the facts were likewise not in
dispute. The sole question at trial concerned the identity of
the shooter. Only the defendant, Holloway, and Chambers
witnessed the shooting and, unsurprisingly, they did not
agree about what happened: the defendant identified Chambers
as the shooter while Holloway and Chambers identified the
defendant. There was no physical evidence to tie
either the defendant or Chambers to the shooting. The defense
theory was that Chambers shot Harris, and that Holloway
identified the defendant as the shooter out of fear of
On the last day of trial, the prosecution called Wittebort as
its final witness. When questioned, Wittebort was surprised
that Holloway's second written statement did not confirm
that she had mentioned Chambers and was confident that the
video recordings would verify his recollection. He was also
surprised to learn that the recordings had not been provided
to the defendant. On March 11, 2010, the defendant was
convicted of felony murder and felony-firearm.
On April 13, 2010, defense counsel filed a motion for a new
trial and requested a copy of the interview recordings.
Later, counsel amended the motion to add claims of
ineffective assistance of counsel and prosecutorial
misconduct regarding the failure to provide the recorded
statements. There was no dispute that the defendant never had
the recordings. The trial court conducted two evidentiary
hearings on the motion. On February 29, 2012, Wittebort
testified that the police generally let the prosecution know
when recordings are available, but the regular practice was
to provide them only “if there's an admission or
something of that nature from the person of interest or
defendant in that matter.” On March 8, 2012, the trial
court granted the defendant's motion for a new trial,
concluding that his due process rights were violated pursuant
to Brady because the suppressed videotaped
recordings undermined confidence in the outcome of the trial.
The Court of Appeals reversed the trial court. People v.
Chenault, unpublished opinion per curiam of the Court of
Appeals, issued November 27, 2012 (Docket Nos. 309384 and
People v. Chenault, 495 Mich. 142, 146-49, 845
N.W.2d 731, 733-35 (2014).
seeks a writ of habeas corpus on the following grounds: (1)
The prosecutor withheld exculpatory evidence, (2) petitioner
was denied a fair trial because of prosecutorial misconduct,
(3) ineffective assistance of counsel, and (4) petitioner is
entitled to an evidentiary hearing on his ineffective
assistance of counsel claims.
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.
Supreme Court has explained that “[A] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The “AEDPA thus 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)).
“[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)). Furthermore, 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 Court. Id.
Habeas relief is not appropriate unless each ground which
supported the state court's decision is examined and
found to be unreasonable under the AEDPA. See Wetzel v.
Lambert, 132 S.Ct. 1195, 1199 (2012).
Claim # 1. The Brady claim.
alleges that the prosecution failed to provide the Pontiac
Police Department videotaped interviews of Holloway, made on
June 29 and July 2, 2008, and of Chambers made on June 30,
2008, to defense counsel.
prevail on his claim, petitioner must show (1) that the state
withheld exculpatory evidence and (2) that the evidence was
material either to guilt or to punishment irrespective of the
good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material
only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A “reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 683 (1985). In Strickler v.
Greene, 527 U.S. 263, 281-82 (1999), the Supreme Court
articulated three components or essential elements of a
Brady claim: (1) the evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently;
and (3) prejudice must have ensued. “Prejudice (or
materiality) in the Brady context is a difficult
test to meet.” Jamison v. Collins, 291 F.3d
380, 388 (6th Cir. 2002). A habeas petitioner bears the
burden of showing the prosecution suppressed exculpatory
evidence. See Bell v. Howes, 703 F.3d 848, 853 (6th
found by the Michigan Supreme Court, the prosecution conceded
that the evidence was suppressed and that the evidence was
favorable to petitioner. However, in a detailed opinion, the
Michigan Supreme Court further found that petitioner failed
to meet the third prong of the suppression test as follows:
We now apply the controlling Brady test to the
defendant's claim. As an initial matter, we note that the
prosecution has conceded that the evidence in question was
suppressed. That leaves two questions: whether the suppressed
evidence was favorable to the defendant, either as
exculpatory or impeaching evidence, and whether it was
In contrast to the question of materiality, the favorability
of evidence is a simple threshold question that need not
delay us long. Only three people witnessed the shooting:
Holloway, Chambers, and the defendant. Other than the
testimony of Holloway and Chambers, there was no other
evidence at trial that identified the defendant as the
shooter. Because the videotaped statements could have
impeached Holloway and Chambers as well as undermined the
strength of Holloway's identification, the evidence was
favorable to the defense.
We are not convinced, however, that the suppressed evidence
was material. “The question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” We
conclude that, even in the absence of the suppressed
evidence, the defendant received a trial that resulted in a
verdict worthy of confidence, because the cumulative effect
of the evidence was not material.
We disagree with the defendant that Wittebort's promises
of leniency to both Holloway and Chambers were material.
While the detectives assured both witnesses that they would
not be investigated or charged for drug crimes, these
promises of leniency were not conditioned on any behavior on
the part of the witnesses. Indeed, Chambers decided not to
make any written statement even after such promises were
made, and, likewise, any alleged promises of leniency
occurred after Chambers implicated himself in the drug
activity. For her part, Holloway also admitted that she lied
in her first interview, promises of leniency notwithstanding,
and in her second interview, the alleged promises were made
after she disclosed the drug activity.
We are similarly unconvinced that the evidence would have
undermined Holloway's identification of the defendant in
a material way. While there were minor discrepancies between
the characterization of Holloway's identification as
expressed in the disclosed material and at trial as
contrasted with her recorded identification, she was able to
quickly identify the defendant as the shooter in her second
interview. Although the specific strong language that
Wittebort attributed to Holloway as she identified the
defendant is not supported by the recording, Holloway did
identify the defendant with confidence. Holloway's honest
qualifications about her ability to view the shooter do not
undermine the overall strength of her identification.
Finally, we disagree with the defendant that the suppressed
evidence supports his trial theory that Chambers was the
shooter, and that Holloway only identified the defendant as
the shooter out of fear of Chambers. Although Holloway was
not forthright in her first statement about Chambers's
involvement, in her second interview she expressed confidence
that Chambers must have been involved. If Holloway were
frightened of Chambers to the extent that she would implicate
an innocent third party, she would not have engaged in a
discussion with the police about Chambers's own
culpability. The suppressed evidence did not contain
information that leads us to conclude that defense counsel
would have asserted the defense that Holloway misidentified
the defendant, rather than the cover-up theory that defense
counsel pursued at trial. Furthermore, another witness placed
the defendant on the side of Harris's car where the
shooter indisputably stood.
We therefore conclude that, even in the absence of the
suppressed evidence, the defendant received a trial that
resulted in a verdict worthy of confidence. The
defendant's Brady claim must fail because the
suppressed evidence was not material to his guilt.
People v. Chenault, 495 Mich. at 156-59
(2014)(citations and footnote omitted).
has met the first and second prong of the Brady
test, as articulated in Strickler v. Greene, by
showing suppressed evidence favorable to his defense;
however, petitioner fails to satisfy the third prong of the
test by demonstrating that the evidence was material, in that
it would have undermined the confidence in the verdict.
argues that the videotaped recording would have impeached the
testimony of Holloway and Chamber who testified that they
were present when Harris was shot in the head.
that impeaches a witness “may not be material if the
State's other evidence is strong enough to sustain
confidence in the verdict.” Smith v. Cain, 132
S.Ct. 627, 630 (2012)(citing United States v. Agurs,
427 U.S. 97, 112-113, and n. 21 (1976)). Impeachment evidence
may be considered to be material where the witness in
question supplies the only evidence linking the defendant to
the crime or the only evidence of an essential element of the
offense. See United States v. Avellino, 136 F.3d
249, 256 (2nd Cir. 1998); Lyon v. Senkowski, 109
F.Supp.2d 125, 139 (W.D.N.Y. 2000). The Sixth Circuit has
noted that: “[C]onsiderable authority from the Supreme
Court and our court indicates that a defendant suffers
prejudice from the ...