United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT
OF HABEAS CORPUS; (2) THE MOTION FOR AN EVIDENTIARY HEARING;
(3) A CERTIFICATE OF APPEALABILITY; AND (4) LEAVE TO APPEAL
IN FORMA PAUPERIS
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
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.
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).
conviction was affirmed on appeal. Id., lv. den. 497
Mich. 948, 856 N.W.2d 923 (2014).
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
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.
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;
(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 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).
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).
Claims # 1, 2, 3, 4, 6, 8, 9, 10, 12, and 14.
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
Standard of Review Governing Ineffective Assistance of
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).
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)).
of this doubly deferential standard, the Supreme Court has
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.
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.
Petitioner's Ineffective Assistance of Counsel Claims and
Related Underlying Claims
Petitioner's First Claim
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).
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).
Petitioner's Second Claim
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
People v. Jones, 2014 WL 3047444, at * 2 (internal
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).
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.
Petitioner's Third Claim
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.
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.
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).
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.
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]