United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING AMENDED PETITION FOR WRIT
OF HABEAS CORPUS 
HONORABLE LAURIE J. MICHELSON, JUDGE
November 18, 2009, at about 2:00 in the afternoon, John Grant
was attacked as he was walking from his van to one of his
rental properties. The attacker punched and kicked Grant.
Eventually, the attacker secured Grant's van keys and
took off in Grant's van. Grant believed that Gregory
Ivory was his attacker. Ivory was charged and tried. His
first trial ended in a mistrial. His second ended in
convictions of carjacking, unarmed robbery, and assault with
intent to do great bodily harm less than murder. Ivory was
sentenced to a minimum of 13 years in state prison. Ivory
appealed his convictions without success.
seeks a writ of habeas corpus from this Court. As will be
explained, the Michigan Court of Appeals adjudicated
Ivory's first, second, and thirds claims on the merits
and Ivory has not shown that the state appellate court's
decision was based on unreasonable fact finding, an
unreasonable application of Supreme Court precedent, or that
it was contrary to Supreme Court precedent. So 28 U.S.C.
§ 2254(d) prevents this Court from granting a writ on
those three grounds. And Ivory's fourth, fifth, and sixth
claims for habeas corpus relief are procedurally defaulted.
So the Court will deny Ivory the writ.
following is a brief summary of Ivory's two trials.
Joseph Turner testified at Ivory's first trial. Among
other things, Turner told the jury that police eventually
recovered Grant's stolen van. But, Turner testified,
because the van's theft and recovery were separated by
many months, the police did not test the van for
fingerprints. (ECF No. 26, PageID.1234.)
response, Ivory's counsel argued that he had never been
told that Grant's van had been recovered and indicated
that had he been told, he might have ordered fingerprint
testing to exculpate Ivory. (ECF No. 26, PageID.1245.) This
was allegedly a violation of Brady v. Maryland, 373
U.S. 83 (1963). (ECF No. 26, PageID.1246.) Ivory's
counsel sought a mistrial and, on the record, Ivory agreed to
that relief. (ECF No. 26, PageID.1250.) Although the trial
judge found that the prosecution's failure to disclose
the van's recovery had been inadvertent (ECF No. 26,
PageID.1254-1255), he still found that “it would be
inherently unfair to the defense” if he did not declare
a mistrial (ECF No. 26, PageID.1256).
second trial, Ivory's defense was that he was not
Grant's attacker. In fact, Ivory presented an alibi
witness. Jocelyn Smith testified that, on the day of the
attack, she saw Ivory go to the computer lab of the community
college they were attending at 12:15 p.m. (ECF No. 12,
PageID.653-655.) Apparently, there was only one way into and
out of the lab and Smith could see that area from where she
was studying. (ECF No. 12, PageID.653-654.) She testified
that she studied in the same spot until about 2:30 p.m. and
never saw Ivory leave the lab. (ECF No. 12, PageID.653-655.)
Ivory's testimony was similar: he said he went to the
computer lab “to get on Facebook” and that he was
there from about 12:00 to 2:00 p.m. (ECF No. 12, PageID.674.)
He then left the lab, went to a bus stop, and arrived home
around 3:00 p.m. (ECF No. 12, PageID.674.)
Fleenor also testified at Ivory's second trial. Fleenor
told the jury that the attack happened around 1:00 or 2:00
p.m. and that he was about ten feet away when it happened.
(ECF No. 12, PageID.554.) The jury heard how Fleenor was
shown a photo array of eight individuals, narrowed it down to
two as the possible attacker, and ultimately did not pick
Ivory's picture (the other was Ivory's, though). (ECF
No. 12, PageID.551-553.) In court, however, Fleenor
unequivocally testified that Ivory was Grant's attacker.
(ECF No. 12, PageID.548.)
also testified. Grant said that around 2:00 or 3:00 p.m. on
the day of the attack he was visiting one his rental
properties in Detroit to do repairs. Grant recalled that when
walking from his van toward the house, he saw Ivory. (ECF No.
12, PageID.568.) Grant told the jury that Ivory hit him in
the face and then kicked him while he was on the ground. (ECF
No. 12, PageID.568-569.) At that point, said Grant, Ivory
stole his keys, got into his van, and started to drive away.
Grant told the jury: “I saw Mr. Ivory in the front seat
of the car. He looked straight back at me.” (ECF No.
12, PageID.570.) Ivory stopped in the street and yelled for
someone to get in the van. Grant saw Ayshia Whitfield, a
tenant of one of Grant's properties, get in. (ECF No. 12,
PageID.570.) According to Grant, sometime before the attack,
Ivory and Whitfield had filed paperwork to rent one of
Grant's properties. (ECF No. 12, PageID.573.) Only
Whitfield ended up renting from Grant and the two later had a
dispute about her deposit. Grant testified that during the
attack, his attacker “said something like where is her
deposit?” (ECF No. 12, PageID.576.)
also explained that at some point he was shown a photo array
of eight people. (ECF No. 12, PageID.579.) Grant told the
jury that from among the eight he marked Ivory as his
attacker. (Id.) Notably, Ivory's picture is the
only one with white margin space surrounding it and his face
is among the two smallest. (See R. 12,
Antiterrorism and Effective Death Penalty Act (AEDPA) (and 28
U.S.C. § 2254 in particular) “confirm[s] that
state courts are the principal forum for asserting
constitutional challenges to state convictions.”
Harrington v. Richter, 562 U.S. 86, 103 (2011);
see also Cullen v. Pinholster, 563 U.S. 170, 182
(2011). If a claim was “adjudicated on the merits in
State court proceedings, ” this Court cannot grant
habeas corpus relief on the basis of that claim “unless
the adjudication of the claim . . . . resulted in a
decision” (1) “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) “that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” See 28 U.S.C.
§ 2254(d). But if the state courts did not adjudicate a
claim “on the merits, ” this “‘AEDPA
deference' does not apply and [this Court] will review
the claim de novo.” Bies v. Sheldon,
775 F.3d 386, 395 (6th Cir. 2014).
amended petition for a writ of habeas corpus, Ivory ...