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Jones v. McCullick

United States District Court, E.D. Michigan, Southern Division

February 6, 2018

WILLIE JONES, Petitioner,



         Willie Jones (“petitioner”), confined at the St. Louis Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for two counts of armed robbery, Mich. Comp. R. Laws § 750.529; one count of carjacking, Mich. Comp. Laws § 750.529a; four counts of felony-firearm, second offense, Mich. Comp. Laws § 750.227b; one count of felon in possession of a firearm, Mich. Comp. R. Laws § 750.224f; and being a fourth felony habitual offender, Mich. R. Comp. Laws § 769.12. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.


         Petitioner was convicted following a jury trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his 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):

On April 23, 2012, at about 11:00 p.m., three women were the victims of a carjacking, and two of them were robbed of their purses at gunpoint, while their vehicle was parked in front of a senior citizen apartment complex. Shortly thereafter the vehicle was located by police and a chase ensued. Eventually defendant jumped from the moving vehicle and ran. After a foot chase by police, defendant was apprehended and the purses were recovered from the vehicle. The next day defendant was identified in a lineup as the perpetrator.

People v. Jones, No. 314171, 2014 WL 3047444, at *1 (Mich. Ct. App. July 3, 2014).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 497 Mich. 948, 856 N.W.2d 923 (2014).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Jones, No. 241361-FC (Oakland Cty. Cir. Ct., July 17, 2015). The Michigan appellate courts denied petitioner's leave to appeal. People v. Jones, No. 330475 (Mich. Ct. App., Feb. 26, 2016); lv. den. 500 Mich. 896, 887 N.W.2d 192 (2016).

         Petitioner seeks habeas relief on the following fourteen claims: (1) trial counsel was ineffective for failing to locate or call an expert on eyewitness identification, (2) petitioner was denied his right to a fair trial when the judge failed to instruct the jury on the factors to assess eyewitness identification; counsel was ineffective for failing to request the instruction, (3) prosecutorial misconduct, (4) trial counsel was ineffective for failing to object to the prosecutorial misconduct, (5) petitioner was denied a fair trial and his right to confrontation because the prosecutor failed to produce an endorsed res gestae witness for trial, (6) trial counsel was ineffective for failing to interview or call res gestae witness Louise White for trial, (7) petitioner's Fourth Amendment rights were violated, (8) the prosecutor improperly introduced petitioner's post-Miranda silence at trial and violated petitioner's attorney-client privilege, (9) petitioner's right to confrontation was violated when he was impeached with out-of-court statements, (10) petitioner's right to a fair trial was violated by the admission of prior bad acts evidence; counsel was ineffective for failing to request a limiting instruction, (11) the in-court identification of petitioner was tainted by an improper suggestive pre-trial identification, (12) trial counsel was ineffective for failing to appear at a polygraph examination of petitioner, (13) ineffective assistance of appellate counsel, and (14) ineffective assistance of trial counsel for failing to object to the references to his post-Miranda silence, for failing to object to the Confrontation Clause violation, and for failing to call a res gestae witness.


         28 U.S.C. § 2254(d) provides that:

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; or
(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.

         A 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.

         The Supreme Court 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) and 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)). 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 claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         Petitioner filed a petition with this Court raising fourteen claims, many of which contain several subclaims. The Sixth Circuit observed: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).[1]


         A. Claims # 1, 2, 3, 4, 6, 8, 9, 10, 12, and 14.

         Petitioner's first, second, fourth, sixth, tenth, twelfth, and fourteenth claims allege that he was deprived of the effective assistance of trial counsel. Because petitioner alleges that trial counsel was ineffective concerning several related claims, the Court will discuss these underlying claims as part of petitioner's related ineffective assistance of counsel claims.

         i. Standard of Review Governing Ineffective Assistance of Counsel Claims

         To show that he or she was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, the defendant is required to overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his or her defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland's test for prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just conceivable.'” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).

         More importantly, on habeas review, “the question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, “[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

         Because of this doubly deferential standard, the Supreme Court has indicated that:

Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington v. Richter, 562 U.S. at 105.

         In addition, a reviewing court must not merely give defense counsel the benefit of the doubt, but must also affirmatively entertain the range of possible reasons that counsel may have had for proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011). Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight' to cast doubt on a trial that took place” over five years ago “is precisely what Strickland and AEDPA seek to prevent.” Harrington v. Richter, 562 U.S. at 107.

         ii. Petitioner's Ineffective Assistance of Counsel Claims and Related Underlying Claims

         1. Petitioner's First Claim

         In his first claim, petitioner argues that trial counsel was ineffective for failing to obtain an expert witness on eyewitness identification prior to moving for the appointment of an expert on eyewitness identification on the first day of trial, which was denied. As an initial matter, petitioner presented no evidence either to the state courts or to this Court that he has an expert witness who would be willing to testify with respect to this issue. A habeas petitioner's claim that trial counsel was ineffective for failing to call an expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006).

         In any event, “[N]o precedent establishes that defense counsel must call an expert witness about the problems with eyewitness testimony in identification cases or risk falling below the minimum requirements of the Sixth Amendment.” Perkins v. McKee, 411 F. App'x. 822, 833 (6th Cir. 2011); see also Dorch v. Smith, 105 F. App'x. 650, 653 (6th Cir. 2004) (upholding as reasonable the Michigan Court of Appeals' conclusion that defense counsel's failure to call an expert witness on eyewitness identification counsel did not satisfy Strickland because counsel “presented several witnesses who testified as to [the habeas petitioner's] whereabouts on the weekend of the incident” and cross-examined the eyewitness regarding inconsistencies in his identification of the petitioner). Although counsel did not call an expert witness on the problems of eyewitness identification, trial counsel vigorously cross-examined Ms. Angela Williams, the sole witness who positively identified petitioner as the perpetrator, with the problems with her identification. (Tr. 11/6/12, pp. 6-22, 32-33). Counsel also cross-examined the detective who conducted the lineup. (Id., pp. 118-22). Petitioner was not denied effective assistance of counsel due to trial counsel's failure to seek the assistance of expert witness on identification, where counsel elicited testimony to discredit Ms. Williams' identification testimony. See Greene v. Lafler, 447 F.Supp.2d 780, 794-95 (E.D. Mich. 2006).

         2. Petitioner's Second Claim

         Petitioner in his second claim alleges that trial counsel was ineffective for failing to request that the judge give the jury CJI2d 7.8, Michigan's standard jury instruction which advises the jury about the different factors that it should consider in determining the reliability of a witness' identification testimony. The Michigan Court of Appeals rejected this claim:

Second, defendant argues that he was denied the effective assistance of counsel because his trial counsel failed to request that the jury be instructed on the proper assessment of eyewitness identification testimony. In particular, defendant argues that his counsel should have requested that CJI2d 7.8, the “identification” standard jury instruction, be read to the jury, which advises the jury that it should consider different variables that may have affected a witness' ability to offer identification testimony. However, in this case, the trial court instructed the jury consistent with CJI2d 3.6, which also deals with the credibility of witness testimony and sets forth different variables that the jury might consider with regard to the credibility of witness testimony. Jury instructions are read as a whole to determine if they fairly presented the issues to be tried and sufficiently protected the defendant's rights. Thus, defense counsel's failure to request that CJI2d 7.8 be read to the jury did not prejudice defendant's case and his ineffective assistance of counsel claim premised on this ground is without merit. Further, and for the same reasons, defendant's claim that he was denied his right to have a properly instructed jury is without merit.

People v. Jones, 2014 WL 3047444, at * 2 (internal citations).

         In the present case, although the judge did not read CJI 2d 7.8 to the jurors, he did read CJI 2d 3.6, the general instruction on witness credibility:

As I have said before, it is your job to decide what the facts of the case are. You must decide which witnesses you believe and how important you think their testimony is. You do not have to accept or reject anything or what-everything a witness said, you're free to believe all, none, or part of any person's testimony.
In deciding which testimony you believe you should rely on your own commonsense and everyday experience. However, deciding whether you believe a witness's testimony you must set aside any bias or prejudice you may have based on the race, gender or national origin of the witness.
There's no fixed set of rules for judging whether you believe a witness but it may help you to think about these questions. Was the witness able to see or hear clearly? How long was the witness watching or listening? Was anything else going on that might have distracted the witness? Did the witness seem to have a good memory? How did the witness look and act while testifying? Did the witness seem to be making an honest effort to tell the truth, or did the witness seem to evade the questions or argue with the lawyers? Does the witness's age and maturity affect how you judge his or her testimony? Does the witness have any bias, prejudice or personal interest in how this case is decided? Have there been any promises, threats, suggestions, or other influences that affected how the witness testified? In general, does the witness have any special reason to tell the truth or any special reason to lie? All in all, how reasonable does the witness's testimony seem when you think about all the other evidence in the case.
Sometimes the testimony of different witnesses will not agree and you must decide which testimony you accept. You should think about whether the disagreement involves something important or not and whether you think someone is lying or is simply mistaken. People see and hear things differently and witnesses may testify honestly but simply be wrong about what they thought they saw or heard. It's also a good idea to think about which testimony agrees best with the other evidence in the case. However, you may conclude that a witness deliberately lied about something that's important to how you decide the case. If so, you may choose not to accept anything that witness said. On the other hand, if you think the witness lied about some things but told the truth about others you may simply accept the part you think is true and ignore the rest.

(Tr. 11/6/12, pp. 215-17).

         The instruction as given by the judge adequately put the issues involving witness identification before the jury, thus, trial counsel's failure to request the special jury instruction on identification did not prejudice petitioner, so as to entitle him to habeas relief.[2]

         3. Petitioner's Third Claim

         In his third claim, petitioner alleges that he was denied a fair trial because of prosecutorial misconduct. “Claims of prosecutorial misconduct are reviewed deferentially on habeas review.” Millender v. Adams, 376 F.3d at 528 (internal citations omitted). A prosecutor's improper comments will be held to violate a criminal defendant's constitutional rights only if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal citations omitted). Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was so egregious as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his or her prosecutorial misconduct claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Harrington, 562 U.S. at 103).

         Petitioner first alleges that the prosecutor improperly vouched for the credibility of his witness, Officer David McCormick, by asking the officer if anyone had located “more stolen cars than you, ” and then by stating, after defense counsel's objection, “Honestly, I don't know anybody who has had his kind of success and I want to mention why he's having the success.” (Tr. 11/6/12, pp. 37-38).

         A prosecutor may not express a personal opinion concerning the guilt of a defendant or the credibility of trial witnesses, because such personal assurances of guilt or vouching for the veracity of witnesses by the prosecutor “exceeds the legitimate advocates' role by improperly inviting the jurors to convict the defendant on a basis other than a neutral independent assessment of the record proof.” Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999) (internal citations omitted). “[G]enerally, improper vouching involves either blunt comments, or comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.” See United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999) (internal citations omitted). It is worth noting, however, that the Sixth Circuit has never granted habeas relief for improper vouching. Byrd v. Collins, 209 F.3d 486, 537 and n. 43 (6th Cir. 2000). Even on direct appeal from a federal conviction, the Sixth Circuit held that to constitute reversible error, a prosecutor's alleged misconduct of arguing his or her personal belief, in a witness' credibility or in a defendant's guilt, must be flagrant and not isolated. See United States v. Humphrey, 287 F.3d 422, 433 (6th Cir. 2002).

         Petitioner is not entitled to habeas relief on this claim because the prosecutor's comment was brief and isolated. An isolated instance of vouching does not make a state trial so constitutionally infirm so as to justify federal habeas relief. See, e.g., Joseph v. Coyle, 469 F.3d 441, 474 (6th Cir. 2006). Secondly, even if this statement amounted to improper vouching, it did not rise to the level of a due process violation necessary for federal habeas relief, because the sizeable amount of evidence offered by the state against petitioner made it unlikely that the jury was misled by this brief statement. See Wilson v. Mitchell, 250 F.3d 388, 398 (6th Cir. 2001). Thirdly, the trial judge quickly sustained defense counsel's objections to these comments, thus, petitioner was not deprived of a fair trial because of prosecutorial misconduct. U.S. v. Galloway, 316 F.3d 624, 633 (6th Cir. 2003). Finally, the jury was instructed that the lawyers' statements and arguments were not evidence. (Tr. 11/6/12, p. 214). This instruction by the court cured any prejudice that may have arisen from any improper vouching. Byrd, 209 F.3d at 537.

         Petitioner next claims that the prosecutor improperly attempted to invoke sympathy for the victims. Petitioner points to the prosecutor's opening statement, in which the prosecutor mentioned that the three female victims were sitting in their car, on a dark night at about 11:30 p.m., after picking up Ms. Louise White, the 73-year-old victim from the hospital earlier in the day, when they “encountered someone [they] didn't plan on encountering ever in [their] ...

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