United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a habeas corpus proceeding brought by a state prisoner
pursuant to 28 U.S.C. § 2254. Petitioner's
conviction stems from the fatal beating of Dale Glenn outside
petitioner's Detroit home on July 28, 2011. On February
10, 2012, a Wayne County Circuit Court jury found him guilty
of second-degree murder, MlCH. Comp. Laws § 750.317. The
trial court sentenced petitioner to twenty to forty
unsuccessful attempts to overturn his conviction in state
court, petitioner filed this habeas corpus petition. He seeks
federal habeas corpus relief on the same grounds rejected by
the Michigan Court of Appeals:
I. Petitioner was deprived of due process by pervasive
prosecutorial misconduct in the prosecutor's repeated,
unfounded assertions that witnesses had been intimidated.
II. Petitioner's constitutional rights were violated
where the trial court failed to develop a factual basis for
the intelligent exercise of challenges during voir
dire by asking generalized leading questions,
admonishing potential jurors who admitted partiality, and
refusing to permit petitioner's attorney to conduct
III. Ineffective assistance of counsel because counsel failed
to investigate and present witnesses on petitioner's
behalf which ultimately prejudiced petitioner.
(Am. Pet., 6-11, ECF No. 4, PageID.81-87).
argues that the petition should be denied because all grounds
raised by petitioner lack merit. Further, respondent argues
that Ground I is also barred by procedural
default. (ECF No. 8).
Judge Jonker has referred the matter to me for all purposes,
including the issuance of a report and recommendation under
28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules
Governing Section 2254 Cases in the District Courts. After
review of the state-court record, I conclude petitioner has
not established grounds for federal habeas corpus relief.
Petitioner has not shown that the state court decision
rejecting the grounds raised in the petition was
"contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States," or that it 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). I recommend that
the petition be denied on the merits.
Court's review of this petition is governed by the
provisions of the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA
"dictates a highly deferential standard for evaluating
state-court rulings which demands the state court decisions
be given the benefit of the doubt." Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted).
"AEDPA requires heightened respect for state court
factual and legal determinations." Lundgren v.
Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
"State-court factual findings  are presumed correct;
the petitioner has the burden of rebutting the presumption by
clear and convincing evidence." Davis v. Ayala,
135 S.Ct. 2187, 2199-2200 (2015) (citations and internal
state court adjudicated the claim, deferential AEDPA
standards must be applied. 28 U.S.C. § 2254(d); see
Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (("
'[A]ny claim that was adjudicated on the merits in State
court proceedings' is subject to AEDPA deference.")
(quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal
habeas "retrials" and ensures that state court
convictions are given effect to the extent possible under
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits" 'using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.'" Parker v. Matthews, 567 U.S. 37,
38 (2012) (per curiam) (quoting Renico v.
Lett, 559 U.S. 766, 779 (2010)).
AEDPA standard is difficult to meet "because it was
meant to be." Harrington v. Richter, 562 U.S.
86, 102 (2011). "Section 2254(d) reflects that habeas
corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
corrections through appeal." Id. at 102-03
(citation and internal quotation omitted); see Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d)
states that an application for a 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); see White v.
Wheeler, 136 S.Ct. 456, 460 (2015).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings - not dicta -
of Supreme Court decisions. White v. Woodall, 134
S.Ct. 1697, 1702 (2014); see Woods, 135 S.Ct. at
1377 ("Because none of our cases confront 'the
specific question presented by this case,' the state
court's decision could not be 'contrary to' any
holding from this Court.). "[W]here the precise contours
of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims." Id. (quotations and internal citations
omitted). Further, under section 2254(d)(1), "habeas
relief may be granted only if the state court's
adjudication 'resulted in a decision that was contrary
to, or involved an unreasonable application of,' Supreme
Court precedent that was 'clearly established' at the
time of the adjudication." Shoop v. Hill, 139
S.Ct. 504 (2019) (per curiam).
unreasonable application of the Supreme Court's holding
must be" 'objectively unreasonable,' not merely
wrong; even 'clear error' will not suffice."
White v. Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003));
see Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017)
(per curiam). Rather, "[a]s a condition for
obtaining habeas corpus relief from a federal court, a state
prisoner must 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." White v. Woodall, 134
S.Ct. at 1702 (quoting Harrington v. Richter, 562
U.S. at 103); see also Dunn v. Madison, 138 S.Ct. 9,
11 (2017) (per curiam). "[C]ircuit precedent
does not constitute 'clearly established Federal law, as
determined by the Supreme Court, '" and "[i]t
therefore cannot form the basis for habeas relief under
AEDPA." Hill v. Curtin, 792 F.3d 670, 677 (6th
Cir. 2015) (quoting Parker v. Matthews, 567 U.S. at
48-49); see Glebe v. Frost, 135 S.Ct. 429, 431
(2014) (per curiam) ("As we have repeatedly
emphasized,  circuit precedent does not constitute
'clearly established Federal law, as determined by the
Supreme Court.' ").
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance." Wood v.
Allen, 558 U.S. 290, 301 (2010). Section 2254(d)(2)
requires that this Court accord the state trial court
substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination. Brumfield v. Cain, 135
S.Ct. 2269, 2277(2015).
Findings of Fact
A. Circuit Court Proceedings
trial began on February 2, 2012, and it concluded with the
jury's verdict on February 10, 2012, finding him guilty
of second-degree murder. (TTI-TTVI, ECF No. 9-6 through
Annette Berry conducted the voir dire. The
prosecutor and defense counsel had provided the judge with a
list of questions that they wanted her to ask potential
jurors. Judge Berry denied petitioner's attorney's
request to conduct his own voir dire. The judge
noted that the attorneys had the opportunity to approach the
bench and request that certain questions be asked. All the
jurors selected indicated that they could be fair and
impartial. (TTI, 6-8, 14-154, ECF No. 9-6, PageID.216-18,
prospective juror stated that he was "partially" a
racist, and that his brother and a "good buddy"
were police officers. He did not want to sit on a homicide
case and stated that he could not be fair. (Id. at
80-83, PageID.290-93). Another prospective juror, at age 61,
considered himself an old person who should not have to serve
on a jury. He related that he had been convicted three times
for alcohol-related driving offenses, that he had received
unfair treatment in one trial, and that he could not be fair
and impartial. (Id. at 90-96, PageID.300-06). These
individuals were excused for cause and did not serve on
petitioner's jury. (Id. at 82-83, 96,
trial court judge gave the jury its preliminary instructions,
including the instruction that opening statements and closing
arguments are not evidence. (Id. at 158,
PageID.368). The attorneys then gave their opening
statements. (Id. at 162-87, PageID.372-97). Before
the jury heard testimony from any witness, the judge
reiterated that the opening statements were not evidence.
(TTII, 11, ECF No. 9-7, PageID.409).
prosecution's primary witness, was sitting outside
petitioner's house during the offense. DB testified that,
as Dale Glenn was walking down the street, petitioner's
co-defendant, William Smith,  called him over. When Dale Glenn
approached, Mr. Smith struck him in the head with a 40-ounce
beer bottle, causing Mr. Glenn to fall to the cement
sidewalk. Mr. Smith then kicked and stomped Dale Glenn
several times in his head and face. Petitioner, who had been
barbequing nearby, walked over and joined in the assault by
kicking Mr. Glenn. The beating stopped when it was
interrupted by oncoming cars. Petitioner and William Smith
then carried Dale Glenn ...