United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAGE HOOD CHIEF JUDGE
Valdez Robinson, (“Petitioner”), confined at the
Chippewa Correctional Facility in Kincheloe, Michigan, filed
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction
for assault with intent to commit murder, M.C.L.A. §
750.83, felon in possession of a firearm, M.C.L.A. §
750.224f, and possession of a firearm during the commission
of a felony (felony-firearm), M.C.L.A. § 750.227b. The
trial court sentenced petitioner as a fourth habitual
offender, M.C.L.A. § 769.12, to concurrent terms of
47-1/2 to 120 years' imprisonment for the assault and
felon-in-possession convictions, to be served consecutive to
two years' imprisonment for the felony-firearm
conviction. For the reasons that follow, the petition for a
writ of habeas corpus is DENIED.
was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
A jury convicted the 39-year-old defendant of shooting
20-year-old Jamel Chubb at a Detroit gas station on May 13,
2010. The prosecution presented evidence that defendant and
Chubb were both dating 19-year-old Jessica Taylor, whom
defendant had been dating for a couple of years. Defendant
learned about the relationship between Taylor and Chubb, and
thereafter followed them on multiple occasions and sent
several text messages to both Taylor and Chubb. On the day of
the shooting, the men had a brief encounter at Taylor's
mother's Livonia residence. Upon leaving, defendant told
Taylor, “Don't let me catch y'all in the
hood.” Later that day, Chubb, Taylor, Jasmine Miller,
and Kayana Davies were all at Miller's Detroit residence,
and ultimately went to a local gas station. The gas station
surveillance video captured an individual wearing a hoodie
and riding a bike approach Chubb and shoot him as he was
pumping gas. Taylor, who was in the front passenger seat of
the vehicle, identified defendant as the shooter. Cellular
phone tracking evidence also placed defendant in the area of
the gas station at the time of the shooting. The defense
theory at trial was misidentification, and the defense
argued, inter alia, that Taylor's identification was not
credible and the cell phone tracking evidence was not
People v. Robinson, No. 321841, 2015 WL 6438239, at
*1 (Mich. Ct. App. Oct. 22, 2015).
conviction was affirmed. Id., lv. den. 499 Mich.
916; 877 N.W.2d 729 (2016).
seeks a writ of habeas corpus on the following grounds:
I. Defense counsel stipulated to the admission of cell phone
tower evidence placing someone using a phone used by the
petitioner in the general area.
II. Defense counsel stipulated to the introduction of
testimony of irrelevant sex tapes, did not object to lines of
questioning regarding those tapes and did not object to the
introduction of text messages or testimony portraying
petitioner in a bad light.
III. Defense counsel failed to object to the prosecutor's
misconduct of referencing facts not in evidence and the
prosecutor's appeal to sympathy in both opening and
closing arguments. Defense counsel's failure to object
denied petitioner of his right to effective counsel and due
process of law.
IV. The prosecution failed to produce sufficient evidence to
identify petitioner as a perpetrator of the offenses beyond a
V. Petitioner was denied the effective assistance of counsel
contrary to the Sixth Amendment where counsel failed to call
material and alibi witness; for an expert witness; the
cumulative effect of error deprived petitioner of a fair
trial and due process.
VI. Petitioner was denied due process of law and a fair trial
by the presentation of false evidence known to be such by the
VII. Petitioner is entitled to resentencing under Alleyne
v. United States, 133 SCT 2151 (2013). Where OV4, OV5,
and OV7 were not found by a jury due process requires that
petitioner be sentenced on accurate information.
VIII. Petitioner was denied a fair trial and impartial trial
by aggressively questioning Kayana Davies and using tones to
intimidate a witness; trial judge was apparently bias during
sentencing by supporting the people's position on
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 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.
decision of a state court 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 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.” Id.
at 410-11. “[A] 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)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Claims ## 1, 2, 3, and 5. Ineffective assistance of
alleges that he was denied due process and the effective
assistance of counsel when trial counsel stipulated to
testimony given by an expert for the prosecution, when trial
counsel stipulated and failed to object to irrelevant
testimony, when trial counsel failed to object to
prosecutorial misconduct, and when trial counsel failed to
call various witnesses.
that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a
two prong test. First, the defendant must demonstrate 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). In so doing, the defendant must overcome a
strong presumption that counsel's behavior lies within
the wide range of reasonable professional assistance.
Id. Petitioner 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.
“Strickland's test for prejudice is a
demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.'”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011)(quoting Harrington, 562 U.S. at 112). 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).
habeas review, “the question ‘is not whether a
federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.'”
Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state
court's application of the Strickland standard
was unreasonable. This is different from asking whether
defense counsel's performance fell below
Strickland's standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v.
Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought
by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not
in operation when the case involves review under the
Strickland standard itself.”
Harrington, 562 U.S. at 101. “Surmounting
Strickland's high bar is never an easy
task.” Id. at 105 (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)). Finally, a
reviewing court must not merely give defense counsel the
benefit of the doubt, but must also affirmatively entertain
the range of possible reasons that counsel may have had for
proceeding as he or she did. Cullen v. Pinholster,
563 U.S. 170, 196 (2011).
first alleges that trial counsel was ineffective by
stipulating to testimony given by the prosecution's
trial court judge qualified Larry Smith as an expert in
“the workings of Metro PSC” and how it stored,
recorded and registered data, finding that
“[S]mith's testimony, which was based on the cell
phone records as well as Smith's specialized knowledge
regarding Metro PCS cell phone towers, helped the jury
understand information at issue in the case that an average
juror would not have previously known.” People v.
Robinson, 2015 WL 6438239, at *2. The Michigan Court of
Appeals also found that “[a]ny objection by defense
counsel to Smith testifying in that capacity  would have
been futile.” Id.
habeas courts “‘must defer to a state court's
interpretation of its own rules of evidence and
procedure' when assessing a habeas petition.”
Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.
2005)(quoting Allen v. Morris, 845 F.2d 610, 614
(6th Cir. 1988)). Because the Michigan Court of Appeals
determined that this evidence was admissible under Michigan
law, this Court must defer to that determination in resolving
petitioner's ineffective assistance of counsel claim.
See Brooks v. Anderson, 292 Fed.Appx. 431, 437-38
(6th Cir. 2008). The failure to object to relevant
and admissible evidence is not ineffective assistance of
counsel. See Alder v. Burt, 240 F.Supp.2d 651, 673
(E.D. Mich. 2003).
has failed to show a reasonable probability that Larry
Smith's expert testimony would have been excluded had an
objection been made by trial counsel. Therefore, petitioner
is not entitled to habeas relief based on trial counsel's
failure to object to the admission of this evidence. See
Pillette v. Berghuis, 630 F.Supp.2d 791, 802 (E.D. Mich.
2009); aff'd in part and rev'd in part on other
grds, 408 Fed.Appx. 873 (6th Cir. 2010); cert.
den. 132 S.Ct. 125 (2011). Petitioner is not entitled to
relief on his first claim.
alleges that he was denied the effective assistance of trial
counsel when counsel stipulated to the introduction of
testimony regarding irrelevant sex tapes and text messages.
claims that trial counsel was ineffective by failing to
object to this evidence because it was not admissible under
M.R.E. 404(b) and it was too prejudicial.
defense counsel focuses on some issues to the exclusion of
others, there is a strong presumption that he or she did so
for tactical reasons, rather than through sheer neglect, and
this presumption has particular force where an ineffective
assistance of counsel claim is asserted by a federal habeas
petitioner based solely on the trial record, where a
reviewing court “may have no way of knowing whether a
seemingly unusual or misguided action by counsel had a sound
strategic motive.” See Yarborough v. Gentry,
540 U.S. 1, 5-6 (2003)(quoting Massaro v. United
States, 538 U.S. 500, 505 (2003)). In the present case,
counsel may very well have made a strategic decision not to
object to this testimony, so as to avoid bringing undue
attention to the evidence. See Cobb v. Perini, 832
F.2d 342, 347-48 (6th Cir. 1987). “[N]ot drawing
attention to [a] statement may be perfectly sound from a
tactical standpoint[, ].”United States v.
Caver, 470 F.3d 220, 244 (6th Cir. 2006). Stated
differently, petitioner is unable to show that counsel's
failure to object to this evidence—thus drawing
attention to it—was deficient, so as to support an
ineffective assistance of counsel claim. See Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010).
the Michigan Court of Appeals found that “[t]he
challenged evidence was relevant to factual issues in this
case.” People v. Robinson, 2015 WL 6438239, at
*3. The Michigan Court of Appeals also found that the
evidence was not unduly prejudicial, and that
“defendant has not shown that defense counsel's
failure to object to the evidence was objectively
unreasonable.” Id. at *4. Petitioner is not
entitled to habeas relief on his ineffective assistance of
trial counsel claim pertaining to the admission of testimony
regarding the sex tapes or text messages, because the
evidence was admissible and was found to be not unduly
prejudicial. Petitioner is not entitled to relief on his
alleges that counsel was ineffective for failing to object to
various forms of prosecutorial misconduct. Petitioner first
claims that the prosecutor improperly referenced facts not in
evidence in both opening and closing argument. Petitioner
further claims that the ...