United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF
COHN, UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2254. Petitioner, Mark
Anthony Porter, through counsel, challenges his jury
convictions for two counts of first-degree murder, conspiracy
to commit murder, first-degree home invasion, larceny in a
building, possession of a firearm by a felon, and possession
of a firearm during the commission of a felony. Respondent,
through the Attorney General's Office, contends that
Petitioner's claims are defaulted or lack merit. For the
reasons that follow, the petition will be denied.
convictions arise from an October 28, 2006 shooting, which
resulted in the death of David Gibson. A co-defendant, Jo Ann
Caldwell, testified at Petitioner's trial that she and
Petitioner went to Gibson's trailer park to kill him, and
that Petitioner shot Gibson while she was in her car.
Petitioner testified that he was intoxicated in
Caldwell's car while Caldwell shot Gibson.
be explained, the trial court required that Petitioner wear
shackles during the trial, but took steps to ensure that the
jury did not see the restraints. However, as will also be
explained, two years after the trial, on April 13, 2012, the
trial court held an evidentiary hearing on Petitioner's
ineffective assistance of counsel claim, at which a juror
testified that he had seen Petitioner's shackles.
was sentenced as follows: concurrent terms of life
imprisonment for each of the premeditated murder and
conspiracy to commit murder convictions; 160 months to 20
years for the first-degree home invasion conviction; 32
months to 4 years for the larceny in a building conviction;
and 40 months to 5 years for the possession of a firearm by a
felon conviction. All sentences were to be served consecutive
to a 2-year term for the felony firearm conviction.
timely filed an appeal of right in the Michigan Court of
Appeals, arguing that he was entitled to a new trial because
(i) he was shackled during trial; (ii) the prosecution
violated the rule announced in Brady v. Maryland,
373 U.S. 83 (1963); (iii) his trial counsel was ineffective;
and (iv) the evidence produced at trial was insufficient to
support his convictions. The Michigan Court of Appeals
affirmed the conviction. People v. Porter, No.
298474, 2012 WL 5233606 (Mich. Ct. App. Oct. 23, 2012).
filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims as in the Michigan
Court of Appeals. In lieu of granting leave to appeal, the
Michigan Supreme Court remanded the issue of whether
Petitioner was denied effective assistance of counsel to the
court of appeals. People v. Porter, 493 Mich. 972
(2013). On remand, the Michigan Court of Appeals again
affirmed the conviction. People v. Porter, No.
298474, 2013 WL 5495555 (Mich. Ct. App. Oct. 3, 2013). The
Michigan Supreme Court denied leave to appeal on May 27,
2014. People v. Porter, 495 Mich. 1005 (2015).
Petitioner then filed the instant petition for habeas relief,
asserting the following claims:
I. His due process rights were violated because he was
improperly shackled during trial;
II. His trial counsel was ineffective for failing to object
to the shackling; and
III. His trial counsel was ineffective because he elicited
testimony about petitioner's criminal past.
Standard of Review
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 proceedings.
28 U.S.C. § 2254(d).
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)). “[T]he
‘unreasonable application' prong of the statute
permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies
that principle to the facts' of petitioner's
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413). However,
“[i]n order for a federal court find a state
court's application of [Supreme Court] precedent
‘unreasonable, ' the state court's decision
must have been more than incorrect or erroneous. The state
court's application must have been ‘objectively
unreasonable.'” Wiggins, 539 U.S. at
520-21 (citations omitted); see also Williams, 529
U.S. at 409. “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),
quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004). Put another way,
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 . . . . As a condition for
obtaining habeas corpus from a federal court, a state
prisoner must 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
Id. at 786-87 (internal quotation omitted).
2254(d)(1) limits a federal habeas court's review to a
determination of whether the state court's decision
comports with clearly established federal law as determined
by the Supreme Court at the time the state court renders its
decision. See Williams, 529 U.S. at 412. Section
2254(d) “does not require citation of [Supreme Court]
cases - indeed, it does not even require awareness
of [Supreme Court] cases, so long as neither the reasoning
nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002).
“[W]hile the principles of “clearly established
law” are to be determined solely by resort to Supreme
Court rulings, the decisions of lower federal courts may be
instructive in assessing the reasonableness of a state
court's resolution of an issue.” Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.
2003); Dickens v. Jones, 203 F.Supp.2d 354, 359
(E.D. Mich. 2002).
a federal habeas court must presume the correctness of state
court factual determinations. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption only with
clear and convincing evidence. Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998).
first argues that he is entitled to habeas relief because he
was improperly shackled during the trial. He says that
because the jury had to weigh his credibility against
Caldwell's testimony during trial, the shackles may have
made him less credible to the one juror who testified to
seeing them. Respondent says that the claim is procedurally
defaulted because Petitioner's counsel did not object to
the decision to shackle him. Respondent further says that the
claim lacks merit because Petitioner suffered no prejudice as
a result of the shackling because of the weight of the
evidence against him and because he testified to the fact
that he was imprisoned during the trial.
says that that his trial counsel was ineffective for failing
to object to the shackling, thus excusing any default.
Ineffective assistance of counsel may establish cause for
procedural default if it is “so ineffective as to
violate the Federal Constitution.” Edwards v.
Carpenter, 529 U.S. 446, 451 (2000). Given that the
cause and prejudice inquiry for the procedural default issue
merges with an analysis of the merits of Petitioner's
defaulted claim, it is better to consider the merits of the
claim. Moreover, Petitioner could not have procedurally
defaulted his ineffective assistance of counsel claim because
the Michigan Court of Appeals explicitly ruled on that claim.
Porter, 2013 WL 549555. Thus, the Court will
consider Petitioner's claim on the merits.
Constitution prohibits the use of visible shackles during the
guilt or penalty phases of a trial “unless that use is
‘justified by an essential state interest'-such as
the interest in courtroom security-specific to the defendant
on trial.” Deck v. Missouri, 544 U.S. 622, 624
(2005) (quoting Holbrook v. Flynn, 475 U.S. 560,
568-569 (1986)). In the instant matter, after explaining that
Petitioner “failed to preserve the issue because he did
not object to the trial court's decision to shackle him
at trial, ” the Michigan Court of Appeals described the
shackling issue as follows:
Here, defendant wore leg shackles at trial, but his legs were
covered by the desk at which he sat. He was brought into the
courtroom before the jury was seated in order to prevent
jurors from inadvertently seeing his shackles. Nevertheless,
one of the jurors in the case testified at an evidentiary
hearing that he observed defendant's shackles a
“couple times” during the trial. At the
evidentiary hearing, the trial court judge sat in the seat
where the juror sat during trial and looked at defendant, who
was seated where he had been seated at trial, and noted on
the record that it could not see defendant's shackles.
The trial court concluded that the juror likely did not see
defendant's shackles, and that the juror's
recollection of shackles was likely influenced by being asked
whether he remembered seeing shackles at trial. The trial
court also concluded that because defendant's shackles
were not visible, it did not need to provide a justification
for shackling defendant.
Porter, 2012 WL 5233606 at *1. The Michigan Court of
Appeals went on to conclude that the trial court
“abused its discretion in having defendant shackled
during trial without record evidence that the same was
necessary, ” but that there was no evidence that
Petitioner suffered any prejudice as the result of the
asserts that the court of appeals applied the wrong standard
when analyzing this issue, and should have required the state
to demonstrate beyond a reasonable doubt that the shackling
error did not contribute to the verdict. It is well settled
[W]here a court, without adequate justification, orders the
defendant to wear shackles that will be seen by the
jury, the defendant need not demonstrate actual
prejudice to make out a due process violation. The State must
prove “beyond a reasonable doubt that the [shackling]