United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION
(ECF NO. 1), DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
V. PARKER U.S. DISTRICT JUDGE.
matter has come before the Court on Petitioner Marlo Darius
Brown's pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2254. Petitioner challenges his
state convictions for second-degree home invasion, Mich.
Comp. Laws § 750.110a(3), attempted first-degree home
invasion, Mich. Comp. Laws § 750.92 and §
750.110a(2), receiving or concealing stolen property valued
at $200 or more but less than $1, 000, Mich. Comp. Laws
§ 750.535(3)(b), and third-degree fleeing and eluding a
police officer, Mich. Comp. Laws § 257.602a(3).
Petitioner alleges as grounds for relief that (1) his right
of confrontation was violated when certain police officers
failed to testify at his trial, (2) trial counsel was
ineffective for failing to investigate all relevant
witnesses, (3) trial counsel was ineffective for failing to
investigate and interview officers Heather Kolke and Jesse
Dunlap, (4) the search of his vehicle and person violated his
constitutional right not to be subjected to unreasonable
searches and seizures, and (5) the Michigan Court of Appeals
misapplied the abandonment doctrine when analyzing his Fourth
Joe Barrett argues in an answer to the petition that
Petitioner procedurally defaulted his first claim and a
portion of his claims about trial counsel. Respondent also
asserts that the state courts' rejection of
Petitioner's claims did not result in decisions that were
contrary to federal law, unreasonable applications of federal
law, or unreasonable determinations of the facts. The Court
agrees that habeas relief is not warranted on any of
Petitioner's claims. Accordingly, the Court is denying
Petitioner habeas corpus relief.
Michigan Court of Appeals accurately summarized the facts
leading to Petitioner's convictions as follows:
Defendant's convictions arose from two separate
incidents, both of which occurred on January 18, 2011, in
Canton, Michigan. In the first incident, someone broke into
the home of Dennis Matthews and stole several items,
including a new television still in its box. In the second
incident, a person broke the glass on the front door of the
home of Edward and Veronica Fair, but then ran off. The
Fairs, who were home at the time, called the police, who
responded within three to four minutes.
After responding to the reported break-in at the Fairs'
home, the police observed defendant walking in the area. When
an officer approached defendant to determine if he had
witnessed anything associated with that incident, defendant
fled on foot. Defendant eventually entered a vehicle and
drove off. A police pursuit ended when defendant lost control
of his vehicle and crashed into a tree. Defendant fled from
his vehicle on foot and was eventually apprehended and
arrested. After defendant was in custody, the police removed
his shoes to compare the shoe treads to prints that had been
left in the snow at the scenes of both incidents. The police
also discovered, in the backseat of defendant's vehicle,
a new television, which was still in its box and which
matched the type taken from Matthews's home.
People v. Brown, No. 304407, 2014 WL 2619395, at *1
(Mich. Ct. App. June 12, 2014) (unpublished).
April 28, 2011, the jury found Petitioner guilty, as charged,
of second-degree home invasion, attempted home invasion in
the first degree, receiving and concealing stolen property
valued at $200 or more, but less than $1, 000, and
third-degree fleeing and eluding the police. On May 13, 2011,
the trial court sentenced Petitioner to concurrent terms of
nine to sixteen years in prison for the second-degree home
invasion, one to five years in prison for the attempted
first-degree home invasion and for fleeing-and-eluding the
police, and two years on probation for receiving or
concealing stolen property.
moved for a new trial, arguing that: (1) the search of his
vehicle and person constituted an unreasonable search and
seizure, and trial counsel was ineffective for failing to
seek suppression of the proceeds of the search; and (2) trial
counsel was ineffective for failing to challenge testimony
that officers were able to match the serial number of the
television seized from Petitioner's car to a receipt
provided by the alleged victim. The trial court held oral
arguments on the motion, but declined to grant an evidentiary
hearing. The court denied Petitioner's motion on grounds
that the police did not act inappropriately and that a motion
to suppress the fruits of the search and seizure would have
been frivolous. See 3/30/12 Mot. Hr'g; see
also People v. Brown, No. 11-1104, Order Denying Mot.
(Wayne Cty. Cir. Ct. Mar. 30, 2012).
raised the same two issues in an appeal as of right. He also
moved to remand his case to the trial court for an
evidentiary hearing on his claim about trial counsel. The
Michigan Court of Appeals granted Petitioner's motion to
remand and ordered the trial court to conduct an evidentiary
hearing on Petitioner's claim about trial counsel. On
remand, the trial court held an evidentiary hearing at which
Petitioner's trial attorney testified. See
11/30/12 Ginther Hr'g Tr. at 4-38.The trial
court later ruled that trial counsel's representation did
not fall below an objective standard of reasonableness and
that the result of the trial would not have been different
were it not for counsel's allegedly poor performance.
See People v. Brown, No. 11-001104-01, Order Denying
Mot. for New Trial (Wayne Cty. Cir. Ct. Dec. 28, 2012).
the remand, the Michigan Court of Appeals affirmed
Petitioner's convictions in an unpublished per
curiam opinion. See Brown, 2014 WL
2619395. Petitioner appealed to the Michigan
Supreme Court, but the State Supreme Court denied leave to
appeal on October 28, 2014, because it was not persuaded to
review the issues. See People v. Brown, 497 Mich.
890, 854 N.W.2d 887 (2014).
January 5, 2015, Petitioner filed a motion for relief from
judgment in which he raised several claims about his right of
confrontation, trial and appellate counsel, the trial
court's admission of certain evidence at trial, the
prosecutor's conduct, the jury, and the prosecution's
findings of fact. The trial court denied the motion on
grounds that trial counsel was not ineffective, that
Petitioner failed to make meritorious arguments, and that
Petitioner failed to demonstrate actual prejudice warranting
reversal of his convictions. See People v. Brown,
No. 11-001104-01-FH, Opinion (Wayne Cty. Cir. Ct. April 3,
apparently failed to appeal the trial court's decision.
He did file an application for a delayed appeal from his
judgment of sentence, but the Michigan Court of Appeals
dismissed the application as untimely. See People v.
Brown, No. 326965 (Mich. Ct. App. Apr. 21, 2015).
Petitioner did not appeal the Court of Appeals' decision
to the Michigan Supreme Court. (See ECF No. 8-12.)
26, 2015, Petitioner filed this habeas corpus petition.
Respondent maintains that Petitioner procedurally defaulted
some of his claims. To prevail on procedurally defaulted
claims, a petitioner must establish “cause and
prejudice for the defaults” and “also show that
the claims are meritorious.” Babick v.
Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). The Court
finds it more efficient to go directly to the merits of
Petitioner's claims than to analyze whether the claims
are procedurally defaulted and whether Petitioner has shown
“cause” for the defaults and actual prejudice
from the claimed errors. Accordingly, the Court excuses the
alleged procedural defaults and “cut[s] to the merits
here, ” as “the cause-and-prejudice analysis adds
nothing but complexity to the case.” Id.
STANDARD OF REVIEW
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to §
2254, the Court may not grant a state prisoner's
application for the writ of habeas corpus unless the state
court's adjudication of the prisoner's claims on the
(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).
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.” Richter, 562 U.S. at
101 (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.
a state court's determination of a factual issue is
presumed to be correct unless the petitioner rebuts the
presumption of correctness with clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1);
Holland v. Rivard, 800 F.3d 224, 242 (6th Cir.
2015), cert. denied, 136 S.Ct. 1384 (2016). In
addition, “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
Claim One: Violation of the Confrontation Clause
alleges that his right to confront the witnesses against him
was violated when two of the police officers who initially
responded to the home invasions (Heather Kolke and Jesse
Dunlap) failed to testify at his trial. Petitioner asserts
that there was no basis for admitting the seized evidence
absent the officers' testimony.
first raised this claim in his motion for relief from
judgment. The state trial court rejected the claim because
Petitioner had not shown that he would have had a reasonably
likely chance of acquittal had all the officers involved in
the investigation and apprehension of him testified at trial.
Sixth Amendment to the United States Constitution guarantees
defendants in criminal cases “the right . . . to be
confronted with the witnesses against him.” U.S. Const.
amend. VI. The Confrontation Clause, however, applies only to
testimonial statements. United States v. Damra, 621
F.3d 474, 492 n.4 (6th Cir. 2010); United States v.
Reynolds, 684 Fed.Appx. 510, 514 (6th Cir. 2017).
It applies to “witnesses” against the accused-in
other words, those who “bear testimony.” 2 N.
Webster, An American Dictionary of the English Language
(1828). “Testimony, ” in turn, is typically
“[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.”
Crawford v. Washington, 541 U.S. 36, 51 (2004).
issue here is the failure of Officers Heather Kolke and Jesse
Dunlap to testify at Petitioner's trial. Officer Kolke
responded to a police dispatch about glass breaking at Mr.
and Mrs. Fair's residence, and Officer Dunlap responded
to the home invasion at Mr. Matthews' residence. However,
no out-of-court statements by Kolke or Dunlap were introduced
at Petitioner's trial. Therefore, Petitioner's
reliance on the Confrontation Clause is misplaced, and habeas
relief is not warranted on his claim.
extent Petitioner is arguing that his Sixth Amendment right
to compulsory process was violated, that claim also lacks
merit. “[T]he Sixth Amendment does not by its terms
grant to a criminal defendant the right to secure the
attendance and testimony of any and all witnesses: it
guarantees him ‘compulsory process for obtaining
witnesses in his favor.' U.S. ...