United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING AMENDED PETITION FOR
WRIT OF HABEAS CORPUS AND, (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA
Page Hood Chief Judge, United States District Court
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Ted Gipson, (“Petitioner”), was
convicted after a jury trial in the Macomb Circuit Court of
first-degree felony murder, Mich. Comp. Laws § 750.316,
and armed robbery, Mich. Comp. Laws § 750.529, for
actions taken with his brother, Scott Gipson, in the beating
death of David Witting. Petitioner was sentenced to life
imprisonment for the murder conviction and 285 to 480 months
for the robbery conviction.
amended petition asserts six grounds for relief: (1)
Petitioner was denied his right to a fair trial by admission
of evidence of his “Murder 1” tattoo, (2)
Petitioner's Fifth Amendment rights were violated by
admission of his coerced statement to police, (3)
Petitioner's Sixth Amendment right to counsel was
violated when the prosecutor used jail-house informants to
elicit incriminating statements from him, (4) Petitioner was
denied his Sixth Amendment right to the effective assistance
of appellate counsel, (5) the prosecutor committed misconduct
by offering perjured testimony from the jail-house
informants, and (6) the Michigan Court of Appeals erroneously
dismissed Petitioner's application for leave to appeal
following his state post-conviction proceeding.
Court finds that Petitioner's claims are without merit.
Therefore, the petition will be denied. The Court will also
deny Petitioner a certificate of appealability, but it will
grant him permission to appeal in forma pauperis.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant's convictions arise from the beating death of
defendant's drug supplier, David Witting, during a
robbery. Evidence at trial indicated that defendant arranged
a meeting with Witting to purchase drugs. During the
transaction, defendant's brother, Scott Gipson, emerged
from behind a dumpster and struck the victim on the head with
a bottle. Defendant and Gipson thereafter punched and kicked
the victim, who died from internal bleeding after his spleen
ruptured. There is no dispute that defendant was present
during the assault, and defendant admitted kicking or
punching the victim once or twice, but defendant generally
maintained that he did not know that Gipson was going to
attack the victim, and defendant claimed that he only struck
the victim when he believed the victim was going to hit him.
People v. Gipson, No. 287324, 787 N.W.2d 126, *1
(Mich. App. Jan. 28, 2010).
his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His appellate brief
raised what now form his first two habeas claims. The
Michigan Court of Appeals affirmed Petitioner's
convictions in a published opinion. Id.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same two claims he raised
in the Michigan Court of Appeals. The Michigan Supreme Court
denied the application because it was not persuaded that the
questions presented should be reviewed. People v.
Gipson, 784 N.W.2d 213 (Mich. July 26, 2010) (table).
then filed the instant action along with a motion to stay the
case so that he could present additional claims to the state
courts in a post-conviction review proceeding. The Court
granted the motion.
then filed a motion for relief from judgment in the state
trial court. The motion raised what now form Petitioner's
third, fourth, and fifth habeas claims. On September 11,
2013, the trial court issued an opinion and order denying the
motion. See Dkt. 20-3.
to Michigan Court Rule 7.205(G)(3), Petitioner had six months
to file a delayed application for leave to appeal in the
Michigan Court of Appeals. On March 12, 2014, the last day to
file an appeal, Petitioner attempted to file a delayed
application for leave to appeal. On March 24, 2014, the
Michigan Court of Appeals' Clerk notified Petitioner that
his application was defective because he did not provide a
proof of service upon the prosecutor. On June 3, 2014, the
appeal was dismissed for failure to pursue the case in
conformity with the court rules. People v. Gipson,
No. 320828 (Mich. Ct. App. June 3, 2014). Petitioner's
motion for reconsideration was denied on July 21, 2014.
September 2, 2014, Petitioner attempted to file a second
application for leave to appeal in the Michigan Court of
Appeals. The court summarily dismissed the appeal
“because appellant failed to file the application
within the 6-month time period required by MCR
7.205(G)(3).” People v. Gipson, No. 323449
(Mich. Ct. App. Oct. 20, 2014).
meantime, Petitioner had filed an application for leave to
appeal in the Michigan Supreme Court from his first dismissed
appeal to the Michigan Court of Appeals. On April 28, 2015,
the Michigan Supreme Court issued an order denying leave to
appeal because the court was not persuaded that the questions
presented should be reviewed. People v. Gipson, 861
N.W.2d 902 (Mich. 2015) (table).
then returned to this Court and filed a motion to reinstate
his federal habeas case and an amended petition. The Court
granted the motion, and Respondent subsequently filed a
responsive pleading and the relevant portions of the state
court record. The matter is now ready for decision.
Standard of Review
U.S.C. § 2254(d)(1) curtails a federal court's
review of constitutional claims raised by a state prisoner in
a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section
unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
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), quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).
‘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.
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). “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 fairminded disagreement.”
Harrington, 562 U.S. at 103 (internal quotation
Procedural Default and Statute of Limitations
initial matter, Respondent asserts that several of
Petitioner's claims are barred by his state court
procedural default and by application of the one-year statute
of limitations. Under the procedural default doctrine, a
federal habeas court will not review a question of federal
law if a state court's decision rests on a substantive or
procedural state law ground that is independent of the
federal question and is adequate to support the judgment,
absent a showing of cause and prejudice to excuse the
default. See Coleman v. Thompson, 501 U.S. 722, 729
court procedural default, however, is not a jurisdictional
bar to a review of a habeas petition on the merits. See
Trest v. Cain, 522 U.S. 87, 89 (1997). That is,
“federal courts are not required to address a
procedural-default issue before deciding against the
petitioner on the merits.” Hudson v. Jones,
351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). It may be more
economical for the habeas court to simply review the merits
of the petitioner's claims, “for example, if it
were easily resolvable against the habeas petitioner, whereas
the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525. Similarly,
where the statute of limitations poses complicated issues, it
may be more efficient for the Court to resolve the merits of
the petition against the Petitioner. See, e.g., Johnson
v. Mackie, 2014 U.S. Dist. LEXIS 50896, *7, 2014 WL
1418678 (E.D. Mich. April 14, 2014).
present case, the Court deems it more efficient to proceed
directly to the merits of Petitioner's substantive
claims, especially because Petitioner alleges that his
appellate counsel was ineffective for failing to preserve the
defaulted claims (habeas claim 4), and because Petitioner
contends that the prison or state appellate court mishandled
his appellate filings on state post-conviction review causing
his default (habeas claim 6). Accordingly, the Court will
bypass discussion of Respondent's procedural arguments,
(and the Court therefore also need not discuss
Petitioner's fourth and sixth claims which seek to
undermine those defenses), as it is more efficient to resolve
Petitioner's substantive claims on the merits against
Admission of Tattoo Evidence
first asserts that his trial was rendered fundamentally
unfair by the admission of evidence that he bore a tattoo
stating “Murder One.” This claim was presented to
and rejected by the Michigan Court of Appeals on the merits
during Petitioner's direct appeal.
by a state court in the admission of evidence are not
cognizable in habeas proceedings unless they so perniciously
affect the prosecution of a criminal case as to deny the
defendant the fundamental right to a fair trial.”
Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006).
Typically, to show a due-process violation under AEDPA rooted
in an evidentiary ruling, there must be a Supreme Court case
establishing a due-process right with regard to that specific
kind of evidence. Collier v. Lafler, 419 F.
App'x 555, 558 (6th Cir. 2011).
Michigan Court of Appeals denied relief with respect to
Petitioner's evidentiary claim on the following basis:
Defendant argues first that the trial court erred in
admitting evidence that, after the charged offenses, he
obtained a tattoo that read “Murder 1” and
depicted a chalk outline of a dead body underneath. Defendant
argues that this evidence was irrelevant and unfairly
prejudicial. We review the trial court's decision to
admit this evidence for an abuse of discretion, which exists
when the trial court's decision falls outside the range
of principled outcomes. People v. Blackston, 481
Mich. 451, 460 (2008). Generally, “the trialcourt's
decision on a close evidentiary question . . . ordinarily
cannot be an abuse of discretion.” People v.
Sabin, 463 Mich. 43, 67 (2000).
Generally, all relevant evidence is admissible. MRE 402;
People v. Yost, 278 Mich.App. 341, 355 (2008).
Evidence is relevant if it has any tendency to make the
existence of a fact that is of consequence to the action more
probable or less probable than it would be without the
evidence. MRE 401; Yost, supra at 355. Even if
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
MRE 403; Yost, supra at 407. “Unfair prejudice
may exist where there is a danger that the evidence will be
given undue or preemptive weight by the jury or where it
would be inequitable to allow use of the evidence.”
Blackston, supra at 462. The determination whether
evidence should be excluded pursuant to MRE 403 is best left
to the trial court's contemporaneous assessment.
Defendant asserts that there are many possible reasons for
the tattoo. Indeed, defendant was able to present to the jury
a number of plausible theories as to why he obtained the
tattoo. Those theories included referring to his dog, which
was shot during the police raid on his house; and as a
reminder of something he overcame in his life, because he
believed he would win the case and not even be charged with
the instant offenses. However, there was also evidence that
defendant altered the tattoo from an outline of a body to the
shape of a dog after being informed that the police wanted to
photograph the tattoo. Furthermore, other possible reasons
are, as argued by the prosecution, bravado or a symbolic
representation of defendant's acknowledged connection to
the victim's death. Under the circumstances, the tattoo
was relevant to the issues of defendant's intent and
culpability in the victim's death. Because the
prosecution presented significant other evidence of
defendant's guilt without unduly focusing on the tattoo
evidence, and because defendant had the ...