United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE SEAN F. COX JUDGE
prisoner Michael Jerome Morris (“Petitioner”)
filed a pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2254. The petition challenges
Petitioner's convictions for conducting a criminal
enterprise, Mich. Comp. Laws § 750.159i(1), conspiracy
to commit false pretenses involving a value of $20, 000 or
more, Mich. Comp. Laws § 750.157a, and three counts of
false pretenses involving a value of $20, 000 or more, Mich.
Comp. Laws § 750.218(5)(a).
alleges as grounds for relief that (1) the admission of a
default judgment entered against him in a civil case violated
his Fifth Amendment right to remain silent, (2) his trial
attorney was ineffective, (3) there was insufficient evidence
at trial to support his convictions, and (4) the prosecutor
engaged in misconduct. Respondent Mary Berghuis urges the
Court to deny the petition on grounds that Petitioner
procedurally defaulted his fourth claim and that none of
Petitioner's claims have merit. The Court agrees that
Petitioner's fourth claim is procedurally defaulted and
that his other claims do not warrant habeas relief.
Accordingly, the petition will be denied.
and his co-defendant, William Theartist Perkins
(“Perkins”), were tried jointly before a single
jury in Wayne County Circuit Court. The evidence at trial
established that Petitioner
engag[ed] in a scheme with codefendant Perkins to supply
kiosks to churches in the Detroit area through an entity
known as Television Broadcasting Online (“TVBO”),
during which church officials were led to believe that the
kiosks would be provided at no cost to the churches and that
all costs would be assumed by national sponsors. Although
defendant and codefendant Perkins were situated in
Washington, D.C., they came to the Detroit area to make
presentations and to assist in supplying the kiosks to
churches. Bishop Henry Washington, who was involved in local
business-orientated support for churches through the Office
of Ecclesiastical Council, was enlisted to market TVBO's
kiosk program in the Detroit area. According to Washington,
defendant explained to him that a church could receive a
kiosk at no cost to the church because sponsors would pay for
the cost of the kiosks. At various presentations explaining
the program, church officials were invited to submit
applications to participate in the kiosk program. If the
church qualified, a kiosk would be delivered to the church.
The prosecution presented evidence that at the time of
delivery, various documents were presented to church
officials for signature. Among the documents was a four-year
lease agreement with a leasing company. The churches were
provided with funds to make the initial lease payments based
on representations that the funds had been provided by
sponsors. The leasing company would purchase the kiosk from
TVBO and acquire the lease agreement with the church.
Eventually, TVBO stopped providing funds for the lease
payments and the leasing company sought collection directly
from the churches, leading to a number of lawsuits. One
lawsuit was filed by 20 churches against defendant,
codefendant Perkins, TVBO, and other entities, and led to the
entry of a default judgment against defendant. The judgment
awarded money damages to the civil plaintiffs and voided the
lease agreements on the basis of fraud.
People v. Morris, No. 303102, 2013 WL 6244700, at *1
(Mich. Ct. App. Dec. 3, 2013).
was additional evidence that Petitioner made a net profit of
approximately $20, 000 on each kiosk that he sold to the
leasing companies. His defense to the charges was that he did
not lie to any of the pastors who ordered kiosks, that he did
not try to trick the pastors into signing documents, and that
he did not try to get money by deceit, fraud, or any kind of
false representation. He maintained that he simply was unable
to keep his commitment to the churches because he lacked
adequate funding for the project.
an individual named Larry Richards provided TVBO with $410,
000 through an umbrella organization known as Diversity
Financial Services Network (“DFN”), Petitioner
testified that the money was used for operating expenses and
that DFN sent no additional money to cover the churches'
payments to the leasing companies. Additionally, an investor
named Jesus Linares initially promised to give DFN $3, 200,
000 for the project, but he later reneged on his promise.
did not testify or present any evidence, and on October 26,
2010, the jury found both Petitioner and Perkins guilty of
conducting a criminal enterprise, conspiracy to commit false
pretenses, and three counts of false pretenses. The jury
acquitted Petitioner of one additional count of false
pretenses and four counts of fraud. On December 22, 2010, the
trial court sentenced Petitioner to imprisonment for seventy
months to twenty years for the criminal-enterprise conviction
and to concurrent terms of five to ten years in prison for
the other four convictions. The Michigan Court of Appeals
affirmed Petitioner's convictions and sentences, see
id., and on May 27, 2014, the Michigan Supreme Court
denied leave to appeal because it was not persuaded to review
the issues. See People v. Morris, 495 Mich. 1007;
846 N.W.2d 401 (2014). On May 8, 2015, Petitioner filed his
habeas corpus petition.
Standard of Review
to 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), the Court
may grant an application for the writ of habeas corpus only
if the state court's adjudication of the prisoner's
claims on the merits
(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.
28 U.S.C. § 2254(d)(1) and (2).
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. Rather, that
application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus
imposes a ‘highly deferential standard for evaluating
state-court rulings, ' Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt, '
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010).
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)). To obtain a writ of
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on his or her claim
“was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Id. at 103.
The Admission of the Default Judgment in Evidence
alleges that the state trial court violated his right to due
process by admitting in evidence a default judgment that the
churches obtained against him in a civil lawsuit. (10/7/10
Trial Tr., at 25.) Petitioner contends that his failure to
defend the civil lawsuit was pretrial silence protected by
the Fifth Amendment and that the Fifth Amendment was violated
because he was forced to testify at his criminal trial to
explain why he did not answer the civil complaint. Petitioner
also alleges that the default judgment was admitted
improperly under the Michigan Rules of Evidence. According to
him, there was no evidence that he intended his failure to
answer the civil lawsuit to be an admission, and the evidence
had no probative value in his criminal case.
Michigan Court of Appeals rejected Petitioner's claim of
constitutional error and concluded that the trial court did
not abuse its discretion by refusing to exclude the evidence
under the Michigan Rules of Evidence. The Court of Appeals
also concluded that any error in admitting the default
judgment was harmless.
Clearly Established Federal Law
claim challenges an evidentiary ruling, and to the extent
that the admission of evidence about the default judgment may
have violated Michigan's rules of evidence, the error is
not cognizable on federal habeas review. Hall v.
Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991).
constitutional argument is based on the Fifth Amendment, the
Supreme Court's decision in Griffin v.
California, 380 U.S. 609 (1965), and the Sixth
Circuit's decision in Combs v. Coyle, 205 F.3d
269 (6th Cir. 2000). The Fifth Amendment provides that,
“[n]o person shall be . . . compelled in any criminal
case to be a witness against himself.” U.S. Const.,
amend. V. In Griffin, the Supreme Court held that
“the Fifth Amendment, in its direct application to the
Federal Government and in its bearing on the States by reason
of the Fourteenth Amendment, forbids either comment by the
prosecution on the accused's silence or instructions by
the court that such silence is evidence of guilt.”
Griffin, 380 U.S. at 615. In Combs, the
Sixth Circuit concluded that “the privilege against
self-incrimination applies to a prearrest situation”
and “that the use of prearrest silence as substantive
evidence of guilt is an impermissible burden upon the
exercise of that privilege.” Combs, 205 F.3d
does not dispute that the civil case against him occurred
before his arrest on criminal charges. But even assuming that
the Sixth Circuit's conclusion in Combs applies
to the facts in this case, Combs “employed a
pre-AEDPA standard.” Moore v. Mitchell, 708
F.3d 760, 787 (6th Cir. 2013). Petitioner's case, in
contrast, is governed by AEDPA because he filed his petition
long after AEDPA was enacted in 1996. Joseph v.
Coyle, 469 F.3d 441, 449 (6th Cir. 2006). “Under
AEDPA, a federal court may grant a writ of habeas corpus with
respect to a ‘claim that was adjudicated on the merits
in State court proceedings' if the state court's
decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.' 28
U.S.C. § 2254(d)(1).” Id.
Supreme Court has expressly declined to consider
‘whether or under what circumstances prearrest silence
may be protected by the Fifth Amendment, ' ”
Bond v. McQuiggin, 506 Fed.Appx. 493, 498 (6th Cir.
2012) (quoting Jenkins v. Anderson, 447 U.S. 231,
236 n.2 (1980)), and “circuit precedent does not
constitute ‘clearly established Federal law, as
determined by the Supreme Court, ' 28 U.S.C. §
2254(d)(1).” Parker v. Matthews, 567 U.S. 37,
48 (2012) (per curiam). Consequently, Combs
cannot form the basis for habeas relief under AEDPA. See
id. at 48-49. “The lack of a Supreme Court
decision regarding whether the prosecution may introduce
evidence of a defendant's prearrest silence during its
case in chief precludes federal habeas relief in this
matter.” Mitchell v. Lafler, 118 Fed.Appx. 24,
27 (6th Cir. 2004).
trial counsel informed the jury in his opening statement and
closing argument that the default judgment was entered
against Petitioner because Petitioner was not in a position
to defend himself. (10/12/10 Trial Tr., at 98; 10/21/10 Trial
Tr., at 121.) Trial counsel also pointed out that some of the
churches had defaulted on lawsuits brought against them.
(10/12/10 Trial Tr., at 99.)
himself testified that the default judgment was entered
because he lacked the necessary resources to defend against
the lawsuit. He denied the suggestion that his failure to
defend the civil case was because he agreed with the churches
that he had defrauded them and taken their money. (10/20/10
Trial Tr., at 100, 122, 124.)
Petitioner's testimony, trial counsel's arguments,
and Petitioner's acquittal of four counts of fraud and
one count of false pretenses, the alleged error could not
have had a “substantial and injurious effect or
influence” on the jury's verdict and, therefore,
was harmless. Brecht v. Abrahamson, 507 U.S. 619,
623 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 766 (1946)). Although Petitioner maintains that the
error was not harmless because he was forced to testify to
explain the reason why he could not defend against the civil
the defendant in a criminal trial is frequently forced to
testify himself or herself and call other witnesses in an
effort to reduce the risk of conviction. That the defendant
faces such a dilemma demanding a choice between complete
silence and presenting a defense has never been thought an
invasion of the privilege against compelled
self-incrimination. Williams v. Florida, 399 U.S.
78, 83-84 (1970). The decision whether or not to testify
necessarily implies some collateral limitations on one's
ability to assert a claim or defense. Such difficult
litigation choices do not, however, substantially infringe
Fifth Amendment rights. Witter v. I.N.S., 113 F.3d
549, 555 (5th Cir. 1997). The Fifth Amendment does not
insulate a defendant from all difficult choices that are
presented during the course of criminal proceedings or even
from all choices that burden the exercise or encourage the
waiver of the right against self-incrimination. United
States v. Frazier, 971 F.2d 1076, 1080 (4th Cir. 1992).
Holman v. Burt, No. 2:17-CV-11647, 2018 WL 627111,
at *3 (E.D. Mich. Jan. 29, 2018) (unpublished).
the reasons given above, the state appellate court's
rejection of Petitioner's claim was objectively
reasonable. Habeas relief is not warranted on
alleges next that his trial attorney was constitutionally
ineffective for failing to (1) call material witnesses and
present documentary evidence, (2) cross-examine or
effectively cross-examine and impeach witnesses, and (3)
object to the admission of a document and an incorrect
statement made by counsel for co-defendant Perkins during
closing arguments. The Michigan Court of Appeals adjudicated
these claims on the merits and rejected them.
Clearly Established Federal Law
“clearly established Federal law” for
Petitioner's claim of ineffective assistance of counsel
is Strickland v. Washington, 466 U.S. 668 (1984).
Cullen v. Pinholster, 563 U.S. 170, 1892011). Under
Strickland, a defendant must show “that
counsel's performance was deficient” and
“that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687.
“Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in
the adversary process that renders the result
deficient-performance prong “requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id.
“[T]he defendant must show that counsel's