United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney, Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
a habeas corpus proceeding brought by a state prisoner
pursuant to 28 U.S.C. § 2254. On July 19, 2011, a
Muskegon County Circuit Court jury found petitioner guilty of
possession with intent to deliver fifty to 450 grams of
cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iii), second
subsequent offense, Mich. Comp. Laws § 333.7413(1)(a);
possession of marijuana with intent to deliver, Mich. Comp.
Laws § 333.7401(2)(d)(iii); and possession of a firearm
by a felon (felon in possession), Mich. Comp. Laws §
750.224f. On September 6, 2011, petitioner was sentenced as a
third-offense habitual offender, Mich. Comp. Laws §
769.11, to concurrent prison terms of life imprisonment
without the possibility of parole for his second conviction
of possession with intent to deliver fifty to 450 grams of
cocaine, four to eight years' imprisonment for his
possession with intent to deliver less than five kilograms of
marijuana conviction, and four to ten years' imprisonment
for his felon-in-possession conviction.
unsuccessful attempts to overturn his convictions in
Michigan's courts, petitioner filed his federal habeas
corpus petition. He asks this Court to overturn his
convictions on grounds rejected by the Michigan Court of
I. Petitioner's Fourteenth Amendment right to due process
of law was violated where his possession with intent to
deliver cocaine and marijuana convictions were obtained
through the use of insufficient evidence, contrary to
Jackson v. Virginia.
II. Petitioner's Sixth Amendment confrontation rights and
his Fourteenth Amendment due process rights to a fair trial,
were grossly violated, where the prosecution refused to
identify and/or produce a confidential informant who was the
linchpin of the charges against petitioner, during trial, so
that petitioner could confront his accuser, even after
knowing that this confidential informant's statement to
police was testimonial, contrary to Crawford v.
Washington, Davis v. Washington, and
Roviaro v. United States.
III. Petitioner's Fourteenth Amendment right to due
process of law and a fair trial, were violated, through
multiple acts of prosecutorial misconduct, where the state
impermissibly used confidential informant information given
to police, as direct evidence of petitioner's guilt
without producing this informant during trial, and the state
improperly questioned petitioner in a manner that was
unprofessional, improper, intimidating and highly
prejudicial, contrary to Berger v. United States and
Donnelly v. DeChristoforo.
IV. Petitioner was deprived of his Sixth Amendment right to
effective assistance of counsel when his trial attorney
“failed to subpoena petitioner's alibi witness, and
failed to investigate and interview a key witness; counsel
was also ineffective for failing to object to the
prosecutor's improper cross-examination of petitioner,
contrary to Strickland v. Washington.”
(ECF No. 1, PageID.4-5).
argues that the petition should be denied because all grounds
raised by petitioner lack merit. (ECF No. 12). Further,
respondent argues that Ground III and the Confrontation
Clause component of Ground II are barred by procedural
defaults and petitioner has not established grounds to
overcome those defaults. (Id. at PageID.218-21, 224-27,
Maloney has referred the matter to me for all purposes,
including the issuance of a report and recommendation under
28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules
Governing Section 2254 Cases in the District Courts. After
review of the state-court record, I conclude petitioner has
not established grounds for federal habeas corpus relief.
Petitioner has not shown that the state court decision
rejecting the grounds raised in the petition was
“contrary to, or involved an unreasonable application
of clearly established Federal law, as determined by the
Supreme Court of the United States” or that it was
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). I recommend that
the petition be denied on the merits.
Court's review of this petition is governed by the
provisions of the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA
“dictates a highly deferential standard for evaluating
state-court rulings which demands the state court decisions
be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted).
“AEDPA requires heightened respect for state court
factual and legal determinations.” Lundgren v.
Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings  are presumed correct;
the petitioner has the burden of rebutting the presumption by
clear and convincing evidence.” Davis v.
Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and
internal quotations omitted).
state court adjudicated the claim, deferential AEDPA
standards must be applied. 28 U.S.C. § 2254(d); see
Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny
claim that was adjudicated on the merits in State court
proceedings= is subject to AEDPA deference.”) (quoting
28 U.S.C. § 2254(d)). AEDPA prevents federal habeas
“retrials” and ensures that state court
convictions are given effect to the extent possible under
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S.Ct. 2148,
2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “Section 2254(d) reflects that habeas
corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d)
states that an application for a writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication “(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 upon an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see White v.
Wheeler, 136 S.Ct. 456, 460 (2015); Davis v.
Ayala, 135 S.Ct. at 2198; White v. Woodall, 134
S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of ' 2254(d)(1) is the holdings - not dicta - of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
unreasonable application of the Supreme Court's holding
must be “'objectively unreasonable, ' not
merely wrong; even ‘clear error' will not
suffice.” White v. Woodall, 134 S.Ct. at 1702
(quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)). Rather, “[a]s 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.”
White v. Woodall, 134 S.Ct. at 1702 (quoting
Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,
' ” and A[i]t therefore cannot form the basis for
habeas relief under AEDPA.” Hill v. Curtin,
792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v.
Matthews, 132 S.Ct. at 2155); see Glebe v.
Frost, 135 S.Ct. 429, 431 (2014) (per curiam)
(“As we have repeatedly emphasized,  circuit
precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme Court.'
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2)
requires that this Court accord the state trial court
substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination. Brumfield v. Cain, 135
S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct.
10, 15 (2013).
Findings of Fact
Circuit Court Proceedings
attorney filed a number of pretrial motions, including a
motion to have the court order the prosecution to reveal the
confidential informant referred to in the search warrant for
the residence at 209 East Columbia in Muskegon Heights,
Michigan. On March 14, 2011, the trial court judge conducted
a hearing on the motion. (ECF No. 13-6, PageID.309-15). On
March 21, 2011, the judge entered his opinion and order
denying the motion. He found that the identity of the
confidential informant, standing alone, would not be relevant
because he was not a witness to any crime that occurred on
December 4, 2010, the date the controlled substances were
seized under the search warrant. (ECF No. 13-17,
PageID.1537). The content of the communication made by the
confidential informant to the police was that he saw cocaine
inside 209 East Columbia within 48 hours of December 4, 2010.
The court was not prepared to adopt a rule that, “every
time a confidential informant tells the police that he saw
drugs in a residence, the confidential informant's
identity must be disclosed so that he can reveal the people
who were in the drug house, in order to determine if those
individuals were the dealers, as opposed to a defendant who
might have been absent at the time of the confidential
informant's observations.” (Id.). Further,
the judge found:
[T]he mere possibility that persons other than [petitioner]
were in 209 E. Columbia at the time of the confidential
informant's observation has little relevance as to
whether or not the controlled substances were under the
exclusive control or joint control of [petitioner].
Notwithstanding, the prosecution still bears the burden of
proof beyond a reasonable doubt that [petitioner] actually
possessed the controlled substances.
trial began on July 12, 2011, and it concluded on July 19,
2011, with the jury's verdict convicting petition of the
offenses identified above. (Trial Transcripts, TT I- TT V,
ECF No. 13-10 through 13-15).
West Michigan Enforcement Team (WEMET) is a
multi-jurisdictional law enforcement drug task force. On
December 4, 2008, they received a tip from a confidential
informant regarding illegal drugs observed at 209 East
Columbia in Muskegon Heights, Michigan, and the police
obtained and executed a search warrant. (TT II at 5-7, 111,
ECF No. 13-11, PageID.617-19, 723). The house at 209 East
Columbia was leased to petitioner. (TT II at 115-34, ECF No.
13-11, PageID.730-46; TT IV at 39-40, 74-75, 83, ECF No.
13-13, PageID.1121-22, 1156-57, 1165). The door was locked
and forced entry was required. (TT I at 196-97, ECF No.
13-10, PageID.556-57). The house was small and sparsely
furnished. (TT II at 8-9, ECF No. 13-11, PageID.618-19).
kitchen, inside a cold air vent underneath the stove, police
found a bag with a plastic container inside that contained
247 grams of cocaine. (TT I at 235, ECF No. 13-10,
PageID.595; TT II at 12-14, 93, ECF No. 13-11, PageID.624-26,
705). Police discovered four separate packages of marijuana
inside the freezer. (TT II at 57, 199, ECF No. 13-11,
PageID.669, 811). A Coffee-mate container found in the
kitchen had a false bottom. Crack cocaine was found inside
the false bottom, individually packaged for sale on the
street. Police recovered a latex glove from the trash. Inside
the glove was a mixture of DNA consistent with petitioner
being one of the contributors. A box of gloves was found in a
drawer next to the refrigerator. (TT II at 52-58, 199, ECF No
13-11, PageID.664-70, 811; TT III at 72-106, ECF No. 13-12,
bedroom, police found a duffle bag containing a plastic
baggie of marijuana and men's clothing. (TT II at 15-16,
ECF No. 13-11, PageID.627-28). There was a coffee grinder on
a small table. Testimony indicated that such grinders are
used to make cocaine into a finer powder. (Id. at
entertainment center, police found bottles of Inositol, a
product used as a cocaine cutting agent. (Id. at
18-19, PageID.631-32). On the same entertainment center,
police found mail addressed to petitioner, several items such
as utility bills having the 209 East Columbia address, and
some mail had another address, petitioner's mother's
address at 2030 Sixth Street, Muskegon Heights, Michigan.
(Id. at 19-40, PageID.631-52). Petitioner was on
parole in 2008, and he had given his mother's residence
at 2030 Sixth Street as his address. He never advised his
parole agent that he had leased the house 209 East Columbia.
(TT I at 167-72, ECF No. 13-10, PageID.527-32). Other than a
bulk mail flier, none of the mail found at 209 East Columbia
was addressed to anyone other than petitioner. (TT II at 112,
ECF No. 13-11, PageID.724).
found a plate, spoon, and a bag containing cocaine residue on
a shelf of the entertainment center. The fingerprint from
petitioner's left middle finger was found on that plate.
(TT II at 42-43, ECF No. 13-11, PageID.654-55; TT III at 37,
44, 46, ECF No. 13-12, PageID.867, 874, 876). Police also
recovered two digital scales of a type commonly used in the
drug trade. (TT II at 46-48, ECF No. 13-11, PageID.658-60).
wears size 12 shoes. In the bedroom at 209 East Columbia,
police found three shoeboxes for size 12 shoes and a pair of
size 12 shoes. A black handgun was found underneath the bed.
The gun had been reported as stolen from a location near the
Michigan/Indiana border. A total of six casings were in the
gun, five live rounds and one spent round. (TT I at 219, ECF
No. 13-10, PageID.579; TT II at 49-52, 148-49, ECF No. 13-11,
basement, police found two gallon size bags, which contained
a total of thirteen sandwich-size bags. Each of the smaller
bags contained between 28 and 29 grams of marijuana
(approximately an ounce), a weight typical for sale. (TT I at
235-37, PageID.595-97; TT II, 59-61, 108, ECF No. 13-11,
search warrant was obtained for petitioner's mother's
residence at 2030 Sixth Street, Muskegon Heights, Michigan.
No mail addressed to petitioner was found at that location.
(TT I at 195-99, ECF No. 13-10, PageID.555-559; TT III at
145, ECF No. 13-12, PageID.975). Police found no evidence
that petitioner had been living in the basement. (TT II at
63-65, ECF No. 13-11, PageID.675-77; TT III at 143, 148, ECF
No. 13-12, PageID.973, 978). Petitioner's mother
testified. She denied telling WEMET officers that petitioner
did not live with her and that he was living at 209 East
Columbia. (TT III at 5-18, ECF No.13-12, PageID.835-48). The
prosecution provided impeaching testimony through the officer
who had received her statements. (TT III at 145-48, ECF No.
search warrant was obtained for a residence at 1356 Ducey in
Muskegon, Michigan. A white Chevy Blazer was found parked at
that residence. Petitioner and Katwanna Harris had a child
together. The baby had been born in October 2008, and Ms.
Harris and the baby were living at 1356 Ducey. In the
nursery, police found petitioner's lease agreement for
the property at 209 East Columbia. Police also discovered a
black duffel bag on the floor in the closet. Inside the bag
were two handguns and nine or ten boxes of ammunition. (TT I
at 227-30, ECF No. 13-10, PageID.587-90; TT II at 65-69,
201-15, ECF No. 13-11, PageID.677-81, 813-27; TT III at 13,
ECF No. 13-12, PageID.843; TT IV at 39, ECF No.13-13,
owned a white Chevy Blazer. (TT II at 125, ECF No. 13-11,
PageID.737; TT III at 147, ECF No. 13-12, PageID.997). A
white Chevy Blazer had been seen at 209 East Columbia when
the police began their surveillance. It was registered to Ms.
Harris. A black male drove the Blazer from 209 East Columbia,
and the police lost it in traffic. The white Blazer was found
at 1356 Ducey and a small baggie of cocaine was found on the
floorboard. (TT I at 240, ECF No. 13-10, PageID.600; TT II,