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Wilcox v. Trierweiler

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

March 5, 2018

CHRIS WILCOX, Petitioner,

          Honorable Robert J. Jonker Judge


          Ray Kent United States Magistrate Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Chris Wilcox is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Michigan. On October 24, 2012, a Montcalm County Circuit Court jury found Petitioner guilty of owning or possessing a chemical or laboratory equipment that he knew or had reason to know would be used to manufacture methamphetamine in the presence of a minor, Mich. Comp. Laws § 333.7401c(2)(b), and owning or possessing chemical or laboratory equipment that he knew or had reason to know would be used to manufacture methamphetamine, Mich. Comp. Laws §§ 333.7401c(1)(b), 333.7401c(2)(a). On January 17, 2013, the court imposed sentences of two prison terms of 12 to 30 years.

         On January 26, 2018, [1] Petitioner filed his habeas corpus petition raising six grounds for relief, as follows:


(Pet., ECF No. 1, PageID.6, 8, 10, 13, 16.) Respondent has filed an answer to the petition (ECF No. 7), stating that the grounds should be denied because they are procedurally defaulted, noncognizable and/or lack merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are either noncognizable or lack merit. Accordingly, I recommend that the petition be denied.


         I. Factual allegations

         On November 14, 2011, Petitioner's wife called the police to complain about an unusual odor in the house. When the officers responded, they recognized the smell of methamphetamine (meth) and they found items consistent with meth production. Petitioner was charged with the two offenses on which he was ultimately convicted. Following a preliminary examination held on July 10, 2012, Petitioner was bound over to the circuit court on both offenses. (Prelim. Exam. Tr. ECF No. 8-2, PageID.194-196.) Prior to trial, the prosecutor filed a motion to admit evidence of other bad acts, specifically, evidence that Petitioner had used his stepson and his stepson's friend to purchase Sudafed on five different occasions. (Register of Action, ECF No. 8-1, PageID.128.) Following a hearing held on October 11, 2012, the court ruled that the evidence was admissible under Mich. R. Evid. 404(b). The court further indicated that it would give a limiting instruction, if requested. (10/11/12 Mot. Hr'g Tr., ECF No. 8-4, PageID.216-219.) Defense counsel immediately requested a limiting instruction on the use of evidence of other bad acts. (Id., PageID.219-220.)

         Approximately ten days before trial, the court heard arguments on Petitioner's motion to dismiss the case against Petitioner on the basis of prosecutorial misconduct. Defense counsel argued that the prosecutor had threatened Petitioner's wife into testifying against her husband, by suggesting that if she did not testify, she would lose her children in the then-pending proceeding brought by Child Protective Services. (10/12/12 Mot. to Dismiss Hr'g, ECF No. 8-5, PageID.225-228.) The court indicated a willingness to rehear the matter, but opined that, even if the conversation occurred as Petitioner alleged, a fact disputed by the prosecutor, no misconduct occurred. (Id., PageID.233-236.)

         On October 22, 2012, the afternoon before trial, the court conducted a hearing on Petitioner's motion to appoint new counsel. (Mot. for New Att'y Tr., ECF No. 8-6, PageID.239-250.) Petitioner contended that his second appointed attorney was not representing him as he would like. He specifically complained that the second attorney had previously worked at the same law firm as the attorney he had replaced. Petitioner also complained that defense counsel refused to subpoena certain Petitioner's witnesses. (Id., PageID.241.) Defense counsel responded that Petitioner had identified a list of three witnesses for the first time a few minutes before the hearing. According to defense counsel, he had met with Petitioner at least once a week, but Petitioner had never previously mentioned the witnesses, and the witnesses were not named elsewhere in the record. In addition, defense counsel represented that, while previously appointed counsel had at one time worked at the same law firm as defense counsel, previously appointed counsel left that firm in 2006, and defense counsel himself left in 2008. Defense counsel had had his own practice for four years as of the date of the hearing. (Id., PageID.241-243.)

         Upon consideration, the trial court declined to appoint a third attorney to the case and advised Petitioner that no adjournment would be allowed, because the case had been twice adjourned already. However, the court instructed the prosecutor to assist defense counsel in locating and subpoenaing the newly identified witnesses. (Id., PageID.246.) Finally, defense counsel placed on the record the final plea offer made to Petitioner: in exchange for reducing the charge to one count of attempted operating or maintaining a meth laboratory and an agreement to a sentence of 24 months to 10 years, the prosecutor would dismiss the other charges and the habitual-offender notice, which could have exposed Petitioner to possible life imprisonment. (Id., PageID.247-249.) Petitioner rejected the plea offer on the record. (Id., PageID.248-249.)

         Trial began on October 23, 2012. Petitioner's wife, Robin Wilcox, testified that she had been married to her husband for almost three years. On November 14, 2011, she, Petitioner, their daughter Chelsea (5), and Robin's two children, Jacob (19) and David (16), all lived in the home at 55 Amy School Road. Robin's mother Pam also had lived with them for a time, but she had moved out a couple of months before November 14, 2011. (T. Tr. I, ECF No. 8-7, PageID.332-334.)

         A few days before November 14, 2011, Robin awoke to a strong smell resembling paint or paint thinner in her house, which gave her a headache. Robin knew that Petitioner painted in the basement and had a work bench below the kitchen. (Id., PageID.334-335.) The night before she smelled the strong odor, her husband had been in the basement with Denny Hickey. She knew Denny Hickey as a loser and a druggie. Knowing Hickey's reputation and smelling the odor, she became concerned for her family. (Id., PageID.336-337.) Petitioner was in the basement with Hickey from 12:00 to 2:00 a.m. (Id., PageID.343.) Petitioner left the house at some point that night, and he was gone for a couple of days. (Id., PageID.344.) Robin did not immediately call the police upon waking to the smell. A day or two later, she went downstairs and found a water bottle with a coffee filter in it. (Id., PageID.334-335.) She became concerned, because she did not know what it was. (Id., PageID.335.) Robin went to see the police on November 14, 2017, though she did not want to reveal to Petitioner that she was the source of the report. (Id., PageID.335-336, 376-377, 566.) Robin Wilcox testified that, five or six months before the events, Petitioner had lost a lot of weight over the course of a month or two. He also was sick, always angry, edgy, and stayed out until late at night. (Id., PageID.339, 374-375.) She acknowledged that Jacob also had lost a lot of weight, but she knew that Jacob's weight loss was the result of a known heart problem. (Id., PageID.346.) She suspected that Petitioner was on drugs. (Id., PageID.340.) She was particularly concerned because Petitioner was having Jacob buy Sudafed for him, and she thought it was for making meth. (Id., PageID.340, 346.) According to Robin, the changes in Petitioner's behavior made her afraid of him and afraid of Hickey. (Id., PageID.375-376.)

         When the police arrived at her home, Robin allowed them to search the house. (Id., PageID.345.) After she called the police on November 14, 2011, she, her mother, David, and Chelsea all got tested for having been exposed to meth. None of those tests came back positive. Robin admitted that she had smelled the horrible smell on other occasions, but she knew that Petitioner had been painting in the house. (Id., PageID.341.) Once the police left the house, she spoke to Petitioner about what had happened. She was crying and screaming, and she told Petitioner that they all were going to be tested. Petitioner said something about having painted a candle stand for one of the fireplaces, but she knew that it had been painted before. (Id., PageID.342-343, 363.)

         According to Robin, the basement had two entrances, one from inside the house and one from the outside patio. She admitted that she did not go into the basement often and that the outside basement door was kept unlocked. (Id., PageID.350.)

         On November 11, 2011, Michigan State Police Detective Lieutenant Steven Rau served as the team commander of the Central Michigan Enforcement Team (CMET), a 13-county narcotics task force. (Id., PageID.380.) Rau also served as the District Meth Coordinator. Rau was certified as an expert in how meth is produced and in recognizing the different methods, ingredients, equipment, and components of meth production. (Id., PageID.381-383.) Rau testified that two other officers, Deputies Don Wittkopp and Jason Coon initially responded to the house to search for Petitioner, who was the subject of a warrant. During their search of the house, they smelled a strong odor and found some items they believed related to the production of meth. Rau was asked to assist them. (Id., PageID.383-384.) When he arrived, Rau detected a strong solvent odor similar to xylene, a smell he associated with meth labs he had visited. (Id., PageID.385, 401.) He went into the basement, where he found the smell to be strong and fresh, which likely would have continued 24 to 48 hours after indoor production of the substance. In the basement, Rau looked at a work bench on his right and noticed a clear water bottle, inside of which was a cloudy substance and a coffee filter. (Id., PageID.385.) Rau also observed two 32-ounce cans of xylene, some quarter-inch plastic tubing, coffee filters, and a cold pack, all located together on a shelving unit. (Id., PageID.386.) Immediately below those items, Rau found muriatic acid and glass jars. (Id., PageID.390.) Rau identified the items in picture-exhibits presented by the prosecution. (Id., PageID.389-390.) While the products individually were available from many stores, seeing all of the items together made Rau believe that they had found a meth lab. (Id., PageID.391, 393.) Rau saw no sign of someone having recently painted something in the area. (Id., PageID.401.)

         Rau explained that the one-pot method of manufacturing meth involved crushing or grinding Sudafed and straining it through a coffee filter with alcohol or another solvent. The liquid that comes through the filter contains the ephedrine, while the binder is left in the coffee filter. The ephedrine liquid is placed in a Gatorade or pop bottle. Lithium extracted from lithium batteries is placed in the liquid, together with another solvent, to which sodium hydroxide (lye) is added to form an oil layer that is the methamphetamine base. Using either a turkey baster or another coffee filter, meth manufacturers strain the oil into a separate container. At that point, they create a hydrogen chloride gas generator by inserting a plastic hose into a Gatorade bottle, sealing it, and then adding muriatic acid or sulfuric acid with salt to create hydrogen chloride gas, which is in turn bubbled through the oil methamphetamine base to create a crystal. (Id., PageID.392, 394-395.) Rau testified that he initially thought the water bottle and coffee filter were from either tablet extraction or from soaking the filter containing pill binder in water or pop to release the remaining ephedrine from the residue, in order to make a drink that gives an energy boost. (Id., PageID.395.) Rau testified that meth is a stimulant, causing abusers to remain awake for days at a time, before crashing and sleeping for extended periods, after which they begin the process again. Users typically experience erratic behavior and drastic weight loss. (Id., PageID.399-400.)

         On cross-examination, Rau acknowledged that he found no lye or lithium batteries, which were essential to meth production by the one-pot method. (Id., PageID.405.) Rau indicated, however, that meth cooks often burned opened batteries and cold packs. (Id., PageID. 407.) He also admitted that it was possible that the bottle containing the ephedrine-liquid had been brought to the house after being manufactured somewhere else. (Id., PageID.405-406.) However, in such a case, he would not have expected to smell a strong solvent odor. (Id., PageID.411.)

         Montcalm County Deputy Sheriff Don Wittkopp was assigned to the CMET team on November 14, 2011. He was one of the first officers to respond to Robin Wilcox's call, and he was the investigating officer on the case. (Id., PageID.414.) He oversaw the collection of evidence, including the water bottle containing the filter, the tubing, and a separate bottle containing a sample of the liquid from the water bottle, which Wittkopp saw Detective Rau draw from the larger bottle. The evidence was placed into temporary evidence bags that Wittkopp sealed and initialed. (Id., PageID.415, 419, 424-425.) The evidence was sent to the crime lab to check for fingerprints and the presence of a controlled substance. (Id., PageID.425-426.)

         Michigan State Police Forensic Scientist Susan Isley testified that she had worked at the Grand Rapids crime lab for 19 years. (Id., PageID.427.) Isley was qualified as an expert in drug chemistry and meth production and ingredients. (Id., PageID.429.) Isley determined that the sample bottle of cloudy liquid extracted from the water bottle contained pseudoephedrine. (Id., PageID.432-433.) She also tested the residue on the plastic tubing, but she did not find any controlled substance on it. (Id., PageID.433.) Isley was not surprised by the absence of a controlled substance on the tubing, as she typically found something on tubing only 50% of the time. (Id., PageID.433-434.) She noted that, when tubing is used in meth production, it is used for a hydrochloride gas generator, so it does not necessarily touch the controlled substance. (Id., PageID.441.) Isley was not asked to check for latent fingerprints on the water bottle, and she did not do so. (Id., PageID.441-442.)

         Michigan State Police Sergeant Shawn Baker testified as a latent fingerprint examiner. (Id., PageID.445.) Because many reasons exist for fingerprints not to be present on a surface, he finds fingerprints in only about 20 percent of the cases he works. (Id., PageID.447.) On the Smart water bottle he processed in the instant case, because he saw no visual prints, he used the superglue method in an attempt to recover prints. (Id., PageID.449.) He could see that the item had been touched, but he lacked sufficient portions of the print to allow a comparison or identification. (Id., PageID.450.)

         Jacob VanDyke, Robin Wilcox's son, testified that on November 14, 2011, he was living at his grandmother's (Pam Schaub's) home, though between July and November, he had moved home for some time and then back to his grandmother's. (Id., PageID.454-455.) His brother David and his half-sister Chelsea lived with his mother and step-father (Petitioner). (Id., PageID.455.) Between July and October, Petitioner asked VanDyke to buy Sudafed for him on five occasions. (Id., PageID.457.) The first time, Petitioner asked VanDyke to go to the store with him. On the way to the store, Petitioner told VanDyke that he needed VanDyke to buy him Sudafed. VanDyke did not ask why, but he testified that Petitioner did not have a valid driver's license. (Id., PageID.456-457.) According to VanDyke, Petitioner generally brought him to the store and brought him back home. Petitioner paid for the Sudafed and paid VanDyke an additional five dollars. (Id., PageID.458-459.) One time, VanDyke's friend Raymond Bush was with him, and Petitioner asked Bush to buy Sudafed, too. (Id., PageID.459.) On the one occasion VanDyke met Petitioner at the store, Petitioner was with his friend Denny. (Id., PageID.460.) VanDyke identified exhibits showing his signatures for the purchases. (Id., PageID.457-458.) VanDyke testified that he did not know why Petitioner wanted him to buy Sudafed, though he assumed that it was because Petitioner did not have a valid identification. (Id., PageID.462.) The last time he bought Sudafed, however, he told his grandmother that he was buying Sudafed for Petitioner, and she got mad. After that, he never bought Sudafed for Petitioner again. (Id., PageID.461.) During the three months leading up to November 2011, VanDyke noticed that Petitioner had a change in behavior, becoming angry easily, throwing things, and leaving for long periods of time. (Id., PageID.469.) VanDyke testified that he and his brother went to the basement to work on their bikes, but he only went into Petitioner's area of the basement occasionally, in order to get a tool. (Id., PageID.471.) VanDyke, his mother, and his brother went into the basement on November 14, 2011, because of the strong paint-thinner type of smell. They saw the bottle, and his brother opened it and sniffed it. (Id., PageID.475-476.) VanDyke testified that he had tried smoking incense at 16, but doing so had damaged his heart. He therefore did not use drugs and he drank only occasionally. (Id., PageID.467-468, 483-484.)

         Raymond Bush testified that he had only seen Petitioner one time, but was a friend of Jacob VanDyke. Bush was with Jacob VanDyke when he met Petitioner. (Id., PageID.495-496.) Petitioner asked them to buy Sudafed, and they both did, going to two different Meijer stores. (Id., PageID.487-498.) Petitioner showed up after they bought the Sudafed, and they went out to the parking lot to give the packages to Petitioner. At that time, Petitioner was with another male, but Bush never knew the man's name. (Id., PageID.498-499.) Bush testified that he did not use drugs or drink. He stated that, as part of his employment he was drug tested. He had never tested positive for drugs. (Id., PageID.501, 505.)

         David VanDyke, Robin Wilcox's younger son, was 16 at the time of trial. David stated that he and friends frequently were in the bicycle-repair area of the basement. Another section of the basement was Petitioner's area, and it had a work bench and some shelving. (Id., PageID.507-509.) David would occasionally go into Petitioner's part of the basement to grab a tool. (Id., PageID.510.) David remembered when the police came to the house in November 2011. He had to get drug tested after that, and everyone tested negative for drugs. On November 14, 2011, he smelled an odor like paint thinner in the house, though he did not think it was very strong. He followed his mother downstairs as she looked around. David saw a bottle on the work bench, and he opened the cap and smelled it. He did not smell anything. (Id., PageID.512-514.) David did not notice any changes to Petitioner's behavior in the month preceding the police visit. (Id., PageID.512.)

         Detective Don Wittkopp retook the stand to testify that, when Robin Wilcox called the police, she gave essentially the same story as her testimony at trial. She stated that she had a suspicion that her husband was manufacturing meth. She advised that she was very afraid of him, because his behavior had changed over the last few months. Robin also reported that Petitioner had gotten her son Jacob VanDyke to purchase Sudafed, which Wittkopp immediately confirmed through the national log. (Id., PageID.523-524.) She also reported that, the day before, she had smelled a strong odor in the house that immediately gave her a headache. (Id., PageID.525, 543.) She also indicated that she had found a bottle containing what looked like a cloudy liquid with a coffee filter inside. When Wittkopp arrived, he obtained permission to search, and he found cans of solvents, the reported water bottle, a cold pack, and some tubing. Based on his experience on the narcotics team, he recognized the elements of meth manufacture. He also recognized the chemical smell in the house. (Id., PageID.525-526.) Based upon his suspicions, he called Lieutenant Rau to the scene. Wittkopp also seized the water bottle. (Id., PageID.525.) Petitioner was not home at the time of the search. Wittkopp interviewed Petitioner on June 28, 2012, after advising him of his rights to remain silent and to have an attorney. Petitioner indicated that he would talk to Wittkopp. Almost immediately, Petitioner told Wittkopp that the materials in the house were not his and that he did not make meth. (Id., PageID.528, 546.) Petitioner stated that he knew how the materials got in his house and could identify the owner of the materials, who, he said, was the biggest “cook” (methamphetamine manufacturer) in the area. (Id., PageID.528-530, 552.) Petitioner said that he was sleeping when the items were placed in the basement, but that he could tell Wittkopp who put them there. (Id., PageID.531.) In addition, Petitioner admitted that he had been smoking meth for about a year. (Id., PageID.532.) Petitioner suggested that he wanted something in exchange for giving up further information. (Id., PageID.537.) Immediately following Wittkopp's testimony, the trial court gave a lengthy cautionary instruction, advising that the detective's opinion could not serve as evidence of guilt, instructing on how to evaluate the officer's testimony about Petitioner's statements; and advising that the officer's testimony about Robin Wilcox's prior statements could not be used as substantive evidence of guilt, but only to determine the credibility of her trial testimony. (Id., PageID.558-560.)

         The prosecution rested. (Id., PageID.560.) Defense counsel indicated outside the presence of the jury that he intended to briefly recall Robin Wilcox, but that Petitioner had, with advice and due consideration, elected not to testify. (Id.) Robin Wilcox testified that, after the police left her house, she called Petitioner to advise him that the search had occurred, and she told Petitioner what was seized by the police. (Id., PageID.567.) She also testified that one of David's friends, John Friedlin, had lived in their house for three months, from July to October, but Friedlin no longer lived in the house at the time of the events in issue. (Id., PageID.569-570.) In October, Robin learned that Friedlin had stolen some of her mother's prescription medications from the house, and they were found in his school locker. (Id., PageID.574-576.)

         Following closing arguments and jury instructions, the jury returned a verdict in one and one-half hours, including the time for ordering and eating lunch. (T. Tr. II, ECF No. 8-8, PageID.652.) The jury found Petitioner guilty on both offenses. (Id., PageID.653.) After the jury was excused, the court recognized that, with the charging information, the prosecutor had filed a fourth-habitual offender notice. The court expressed its intent to enter those prior convictions for sentencing purposes. (Id., PageID.655.)

         On January 17, 2013, the date of sentencing, Robin Wilcox for the first time questioned whether Petitioner was in his right mind at the time he refused the plea offer and chose a jury. Responding to skeptical questioning from the court, Robin indicated that she did not have an opportunity to raise the issue earlier, as she did not realize that she could tell the court such things during her testimony. (Id., PageID.662-663.) The probation officer also located a letter that Robin Wilcox had sent to the wrong judge, which had ended up in the probation file. In that letter, Robin Wilcox expressed her belief that drug use had affected her husband's brain and affected his choice not to take the guilty plea. The letter also indicated that Robin Wilcox believed that the water bottle found in the basement belonged to Denny Hickey. (Id., PageID.664-665.) Robin stated that she believed that Petitioner should get help with his drug addiction and that, while Petitioner should be punished, he should not serve a long sentence. She spoke about Petitioner having been in foster care as a child and having experienced verbal and physical abuse. She also stated that, prior to his drug problem, Petitioner had been a good husband and father. (Id., PageID.665-666.) Defense counsel strenuously urged a lower sentence than the 12-year minimum recommended in the presentence report. The court, stating its reasons, sentenced Petitioner to two terms of 12 to 30 years' imprisonment, to run concurrently, and ordered 203 days' credit for time served. (Id., PageID.672-673.)

         Petitioner appealed his convictions and sentences to the Michigan Court of Appeals, raising the same six grounds presented in his habeas petition. In a lengthy unpublished opinion issued on June 19, 2014, the court of appeals rejected all appellate grounds and affirmed the convictions. (Mich. Ct. App. Op., ECF No. 8-10, PageID.676-686.) Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same six issues presented to the Michigan Court of Appeals. (Def.-Appellant's Appl. for Leave to Appeal, ECF No. 8-11, PageID.892-897.)

         II. AEDPA standard

         The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for 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). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘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.'” Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S.__, 134 S.Ct. 1697, 1705 (2014) (internal quotations omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         III. Ground I: Sufficiency of the Evidence

         In his first ground for relief, Petitioner argues that the prosecutor presented insufficient credible evidence to prove Petitioner guilty of the charges. A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” This standard of review recognizes the trier of fact's responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).

         The Jackson v. Virginia standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both the Jackson standard and AEDPA apply to Petitioner's claims, “‘the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the Michigan [trial court's] consideration of the trier-of-fact's verdict, as dictated by AEDPA.'” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This ...

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