United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2254. Petitioner Eddie
Dejuan-Tolbert Smith (Petitioner), proceeding pro
se, is a state inmate serving a sentence of life without
parole following his convictions on two counts of
first-degree premeditated murder, M.C.L. §
750.316(1)(a); three to five years for felon in possession of
a firearm, M.C.L. § 750.224f; and two years for
felony-firearm. M.C.L. § 750.227b. Petitioner claims he
is incarcerated in violation of his constitutional rights,
raising ten (10) claims. Respondent, through the Attorney
General's Office, filed a response contending that
Petitioner's claims are meritless or procedurally
defaulted. For the reasons that follow, the petition will be
was convicted following a jury trial. He filed an appeal of
right. The Michigan Court of Appeals affirmed his
convictions. People v. Smith, No. 315842, 2014 WL
5408966 (Mich. Ct. App. Oct. 23, 2014). Petitioner then filed
a pro se application for leave to appeal with the
Michigan Supreme Court, which was denied. People v.
Smith, 498 Mich. 852 (2015).
then filed a post-conviction motion for relief from judgment
under M.C.R. 6.500, et. seq., which was denied.
People v. Smith, No. 12-005270-01-FC (Wayne Cty.
Cir. Ct., Aug. 20, 2015). The appellate courts denied leave
to appeal. People v. Smith, No. 329975 (Mich.Ct.App.
Jan. 15, 2016); lv. den. 500 Mich. 895 (2016).
then filed the instant petition, presenting the following
I. A writ of habeas corpus should issue where informing the
jury that the petitioner is charged with felony in possession
of a weapon violates the petitioner's right to be tried
by his jury, if he elects not to testify, without his jury
knowing of his prior felony conviction and denied the
petitioner his right to due process and a fair trial.
II. A writ of habeas corpus should issue where the state
trial court refusal to allow defense counsel to participate
in voir dire denied the petitioner the ability to
pick an impartial jury; in the alternative, it was
ineffective assistance of counsel to not request active
participation in the process, both of which denied the
petitioner his due process right to a fair trial pursuant to
U.S. Const. Amends VI, XIV [ ].
III. A·writ of habeas corpus should issue where the
state trial court erred and abused its discretion when it
permitted the introduction of text messages allegedly sent by
the victim, without first authenticating the text message as
is required by MRE 901, thus, violative of petitioner's
right to a fair trial.
IV. A writ of habeas corpus should issue where the state
trial court violated the petitioner's due process right
to a fair trial by allowing into evidence, over
petitioner's objection, a close-up photograph of the
victims' bodies which was so unfairly prejudicial and
gruesome that their admission was more prejudicial than
probative pursuant to U.S. Const. Am XIV.
V. A writ of habeas corpus should issue where repeated
egregious comments by the prosecutor amounted to
prosecutorial misconduct and denied the petitioner his due
process right to a fair trial.
VI. A writ of habeas corpus should issue where the giving of
a flight instruction was plain error and denied petitioner a
fair trial, where the evidence did not support the inference
that the petitioner fled from the scene pursuant to U.S.
Const. Am. XIV [ ].
VII. A writ of habeas corpus should issue where petitioner
received ineffective assistance of both trial and appellate
counsel on their numerous errors, omissions, i.e., failing to
investigate possible defenses, as well as, failing to object
and preserve constitutional violations as articulated in
arguments II, III and IV.
VIII. A writ of habeas corpus should issue where petitioner
is actually innocent of the crimes in which he was charged
and convicted based on newly discovered evidence that
established factual innocence not mere insufficiency of
IX. A writ of habeas corpus should issue where petitioner was
denied his constitutional right to confrontation by the
prosecution introducing evidence to the jury that was taken
outside the presence of petitioner and his defense counsel
which eliminated any chances of this tainted and coerced
evidence from being subjected to the rigors of
X. A writ of habeas corpus should issue where
petitioner's constitutional right to be present at
critical stages of his criminal proceedings violated by the
prosecution when it held a confidential examination of their
star witness in the absence of the petitioner and his defense
material facts leading to petitioner's conviction are
recited verbatim from the Michigan Court of Appeals'
opinion affirming his conviction, which are presumed correct
on habeas review 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 shooting deaths of
two young women, Shenil Jefferies and Kendra Wolfe, in June
2011. The women came to Detroit from Flint with defendant, a
man known to them as “Twenty” or
“Eddie.” The prosecutor's theory at trial was
that defendant killed Kendra because he believed that she had
“set him up, ” and he killed Shenil because of
her association with Kendra. The prosecution presented
evidence that shortly before the murders, Shenil called her
sister, Sherel Johnson Jefferies, and indicated that they had
left a strip club and were on their way to defendant's
apartment. During the call, defendant purportedly took
Shenil's cellular telephone and told Sherel that the
women were drunk and would be fine. However, Sherel could
hear the women crying and pleading for their lives, and
begging defendant not to shoot them, before the telephone
went dead. At one point, Sherel testified that defendant told
the women that he “had too much to live for, ”
and “they had to die.”
The prosecution also presented evidence that Shenil had left
voicemail messages with Sashay Johnson and Laronzo Southall.
Defendant's voice was identified on the voicemails, which
included threats to kill the victims. In addition to the
voicemail messages, the prosecution admitted, over defense
counsel's objection, text messages that Shenil sent to
Southall. The text messages indicated, “[t]his dude
pulled a gun on me” and that “I'm about to
The police found blood that matched Kendra's DNA at
defendant's apartment, which had been vacated shortly
after the offenses and appeared to have been cleaned with
bleach. In addition, all of defendant's furniture and
possessions had been removed from the apartment.
The victims' bodies were discovered at a vacant home.
Kaitlynn Zinda, who had been involved in a sexual
relationship with defendant and became pregnant, testified
that the last time she saw defendant was on a weekend in June
2011. On Saturday, she picked him up outside of his apartment
building and he asked her to drive to an abandoned house
approximately 20 to 30 minutes away from his apartment.
There, he walked to the back of the house and appeared to
open the back door, then look around in the grass. He was
gone for approximately five minutes. Zinda identified a
photograph of the abandoned house, which was the same place
where the victims' bodies were recovered. At the time,
defendant told Zinda that one of his relatives had just
purchased the home and that he was merely there to check on
the home. After visiting the abandoned home, Zinda and
defendant went to a motel to sleep. The next morning, Zinda
learned from Sashay that the victims were missing. Defendant
instructed Zinda not to tell Sashay he was with her, and he
claimed that the women had left the strip club with different
men. Defendant had Zinda drop him off at a liquor store where
he said he was going to attempt to locate Kendra. After the
police discovered the victims' bodies a few days later,
defendant never spoke to Zinda again or returned her
telephone calls. An autopsy revealed that Kendra had
sustained several bruises and abrasions. The cause of death
for both women was multiple gunshot wounds.
People v. Smith, 2014 WL 5408966, at * 1.
Standard of Review
U.S.C. § 2254(d) imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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.
court's decision is “contrary to” clearly
established federal law if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court shall 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.” Id.
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)(citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
emphasized “that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer
v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore,
pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme
Court. Id. To obtain habeas relief in federal court,
a state prisoner is required to show that the state
court's rejection of 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.
raises ten claims, some of which contain additional
subclaims. The Sixth Circuit has observed: “When a
party comes to us with nine grounds for reversing the
district court, that usually means there are none.”
Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d
507, 509 (6th Cir. 2012).
contends that several of Petitioner's claims are
procedurally defaulted. Petitioner says that his trial
counsel was ineffective for failing to preserve these claims
at trial and/or that appellate counsel was ineffective for
properly raise these claims on his direct appeal. Ineffective
assistance of counsel may establish cause for procedural
default. Edwards v. Carpenter, 529 U.S. 446, 451-52
defendant must satisfy a two prong test to establish the
denial of the effective assistance of counsel. First, the
defendant must show that, considering all of the
circumstances, counsel's performance was so deficient
that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The defendant must overcome a strong presumption that
counsel's behavior lies within the wide range of
reasonable professional assistance. Id. In other
words, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be sound
trial strategy. Strickland, 466 U.S. at 689. Second,
the defendant must show that such performance prejudiced his
defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court's
holding in Strickland places the burden on the
defendant who raises a claim of ineffective assistance of
counsel, and not the state, to show a reasonable probability
that the result of the proceeding would have been different,
but for counsel's allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009). The
Strickland standard applies as well to claims of
ineffective assistance of appellate counsel. See Whiting
v. Burt, 395 F.3d 602, 617 (6th Cir.
because the cause and prejudice inquiry for the procedural
default issue merges with an analysis of the merits of
Petitioner's defaulted claims it is more efficient to
consider the merits of these claims. See Cameron v.
Birkett, 348 F.Supp.2d 825, 836 (E.D. Mich. 2004). Each
of Petitioner's claims is addressed in turn below.