United States District Court, E.D. Michigan, Southern Division
JAMES R. MELL, Petitioner,
GREGORY L. SKIPPER, Respondent.
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS, (2) DENYING THE MOTION FOR AN EVIDENTIARY
HEARING, (3) DENYING A CERTIFICATE OF APPEALABILITY, AND (4)
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
R. Mell, (“Petitioner”), confined at the Michigan
Reformatory in Ionia, Michigan, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his conviction for armed robbery, Mich. Comp. Laws
§ 750.529; six counts of unauthorized use of a financial
transaction device, Mich. Comp. Laws § 750.157n(1); and
being a fourth felony habitual offender, Mich. Comp. Laws
§ 769.12. For the reasons stated below, the petition for
writ of habeas corpus is DENIED WITH
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, because they are presumed correct
on habeas review. See Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
Defendant's convictions arise from the armed robbery of
71-year-old Joyce Graham outside a Troy restaurant on the
afternoon of January 9, 2013. As Graham walked to her car, a
man wearing a black ski mask emerged from a vehicle, pointed
a gun at her, and demanded her purse. Graham complied and the
man drove away. Among other items, Graham's purse
contained several credit cards, her cell phone, and car keys.
Although the robber was wearing a ski mask, defendant's
stature, race, and clothing were consistent with the
robber's appearance, and the vehicle used during the
offense was similar to a vehicle registered to
defendant's fiancée, Louise Plewa. The police
pinned Graham's cell phone in areas near the scene of the
robbery, and, shortly after the robbery, defendant and Plewa
were captured on surveillance video purchasing items with the
stolen credit cards at different establishments. Graham's
purse containing her wallet and keys, her eye glasses,
property purchased with the stolen credit cards, a ski mask,
and simulated guns were found in defendant and Plewa's
home, which was a quarter mile from the restaurant where the
armed robbery occurred. Graham's cell phone, two
simulated guns, and receipts from establishments where the
stolen credit cards were used were found in Plewa's
vehicle, which defendant was driving when he was arrested. At
trial, the defense admitted that defendant participated in
using the stolen credit cards, but denied that he was the
person who robbed Graham of her property. The defense theory
was that defendant was misidentified as the robber and was
unaware of how Plewa acquired the credit cards. The defense
noted that, shortly after the robbery, the police
investigated another white male, who was driving a
similarly-described SUV with a similar license plate number.
People v. Mell, No. 316808, 2014 WL 6852989, p. 1
(Mich. Ct. App. Dec. 4, 2014).
conviction was affirmed on appeal. Id.; lv. den. 498
Mich. 872, 868 N.W.2d 621 (2015); reconsideration
den. 499 Mich. 859, 873 N.W.2d 557 (2016).
filed a post-conviction motion for relief from judgment,
which was denied. People v. Mell, No. 13-244740-FC
(Oakland Cty.Cir. Ct. Apr. 13, 2017). The Michigan appellate
courts denied petitioner leave to appeal. People v.
Mell, No. 340062 (Mich.Ct.App. Feb. 20, 2018); lv.
den. 503 Mich. 886, 919 N.W.2d 47 (2018).
seeks a writ of habeas corpus on the following grounds:
I. Categorically defining prosecutorial misconduct not only
decimating rights guaranteed Petitioner by our United States
Constitution's Fifth, Sixth, and Fourteenth Amendments,
but so infecting the proceedings with unfairness as to result
in a complete deprivation of due process, were trial errors
stemming from government utilization of pervasive bad
character attacks; post-Miranda and trial silence; a
fictitious Confrontation Clause-violating accomplice
confession; false evidence and perjury; material
misstatements; reasonable doubt denigration; and emotionally
inflammatory argument and evidence.
II. Where appointed counsel abandoned Petitioner at a
critical stage of the proceedings; failed to perform
investigation of any kind; refused to seek a continuance;
forced Petitioner to waive his rights to testify and present
an exonerating witness; refused to present a substantial
defense; acquiesced with prosecutorial misconduct; failed to
oppose inadmissible evidence; and accepted the presence of
biased jurors, Petitioner was denied both a fundamentally
fair trial and the effective assistance of counsel in
violation of the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution.
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.
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.”
Id. 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).
Court notes that the Michigan Court of Appeals reviewed and
rejected petitioner's prosecutorial misconduct claims
under a plain error standard because he failed to preserve
the issues as a constitutional claim at the trial court
level. The AEDPA deference applies to any underlying
plain-error analysis of a procedurally defaulted claim. See
Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir.
2017); cert. den. 138 S.Ct. 1998
Claim # 1. The prosecutorial misconduct claims.
first argues he was denied a fair trial because of
of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d
520, 528 (6th Cir. 2004)(citing Bowling v. Parker,
344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor's
improper comments will be held to violate a criminal
defendant's constitutional rights only if they
“‘so infected the trial with unfairness as to
make the resulting conviction a denial of due
process.'” Darden v. Wainwright, 477 U.S.
168, 181 (1986)(quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). Prosecutorial misconduct will
provide a basis for habeas relief only if the conduct was so
egregious as to render the entire trial fundamentally unfair
based on the totality of the circumstances. Donnelly v.
DeChristoforo, 416 U.S. at 643-45. In order to obtain
habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court's rejection of
his prosecutorial misconduct claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews,
567 U.S. 37, 48 (2012)(quoting Harrington, 562 U.S.
at 103). Habeas petitioners must clear a “high
bar” to prevail on a prosecutorial misconduct claim.
Stewart v. Trierweiler, 867 F.3d at 639.
first claims that the prosecutor committed misconduct and
violated M.R.E. 404(b)'s prohibition on using prior bad
acts when he repeatedly brought up petitioner's alcohol
use and drunk driving at trial. The Michigan Court of Appeals
rejected this claim:
Defendant complains that on several occasions in opening
statement and closing argument, the prosecutor referenced
defendant's alcohol consumption. As plaintiff aptly
notes, evidence at trial revealed that a great deal of
alcohol was purchased with the stolen credit cards, alcohol
was found in defendant and Plewa's home during the
execution of a search warrant, defendant blamed his use of
alcohol for the faultiness of his recollection regarding the
time surrounding the offenses, and the desire to obtain
alcohol was posited as a motive for the crimes. Given the
evidence adduced at trial, the prosecutor's references to
defendant's alcohol consumption were proper comments on
the evidence and reasonable inferences arising from the
People v. Mell, 2014 WL 6852989, p. 17 (internal
present case, the Michigan Court of Appeals determined that
the prosecutor's references to petitioner's alcohol
use were relevant to the prosecutor's theory of the case.
A prosecutor does not commit misconduct by bringing up a
habeas petitioner's prior bad acts when such bad acts are
relevant to the prosecutor's case. See Cristini v.
McKee, 526 F.3d 888, 900 (6th Cir. 2008).
next contends that the prosecutor improperly commented on
petitioner's post-Miranda silence when he made
the following remarks in closing argument:
Now, one very important thing. Mr. Kaluzny [defense counsel]
began his closing argument with the assertion that the
defendant is here saying he's not guilty. He is not. The
defendant is not saying anything. And that is not evidence
that he's not guilty. And it is not evidence that he is
The fact that the defendant is on trial is not evidence of
anything. He has not said anything to you. And as Mr. Kaluzny
said, you may not use that against him and that is absolutely
correct. But you also cannot give him things he doesn't
He didn't say anything. And he doesn't deserve to
have you say, oh, he's asserting that he's not
guilty. He's not. He never said that. He has never said
anything. And that can't be used against him. Of course,
that's absolutely right. Except he did say in this, how
much time am I looking at?
(Tr. 5/23/13, pp. 171-72).
It is a
violation of the Due Process clause of the Fourteenth
Amendment for the prosecution to use a defendant's
post-arrest silence after he has been given Miranda
warnings to impeach exculpatory testimony given by the
defendant at trial. Doyle v. Ohio, 426 U.S. 610, 619
(1976). However, a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to
remain silent, because as to the subject matter of the
statements, defendant has not remained silent at all.
Anderson v. Charles, 447 U.S. 404, 408 (1980). The
prosecutor did not improperly comment on petitioner's
post-Miranda silence because the prosecutor's
reference was to a comment that petitioner had made prior to
exercising his right to remain silent when he had asked the
detective how much time that he was looking at for the crime.
Petitioner only invoked his right to remain silent later in
the interview. Because petitioner chose to speak with the
police after his Miranda warnings had been given,
the prosecutor's remarks about petitioner's inquiries
into his possible sentence did not impermissibly comment upon
petitioner's post-arrest silence.
further contends that the prosecutor committed misconduct by
introducing evidence that petitioner had requested during the
police interview to speak with an attorney.
the Doyle rule was established in the context of a
defendant's invocation of Miranda's right to
remain silent, it also applies to an invocation of the right
to counsel. See Wainwright v. Greenfield, 474 U.S.
284, 295, n. 13 (1986).
parties had agreed to redact the portion of the
detective's interview with petitioner, where petitioner
had invoked his right to counsel. However, the detective
while testifying about the interrogation mentioned that
petitioner had asked to speak with an attorney. After the
detective testified, the defense counsel indicated that this
reference to petitioner's request for counsel should have
been crossed off the interview sheet and that counsel himself
may have been at fault for not doing so. The prosecutor
agreed to redact the reference to petitioner's request
for counsel from the interview sheet before it was given to
the jury. People v. Mell, 2014 WL 6852989, pp. 5-6.
is no indication that the failure to redact the police
interview was anything other than inadvertent. Moreover, in
light of the overwhelming evidence of guilt, the
prosecutor's failure to redact the police interview to
remove references to petitioner's invocation of his right
to counsel was harmless error because it “had no
substantial and injurious effect or influence in determining
the jury's verdict.” United States v.
Perkins, 204 Fed.Appx. 799, 807 (11th Cir. 2006).
next contends that the prosecutor violated his Sixth
Amendment right to confrontation by admitting into evidence
the out-of-court statement made by his co-defendant to the
police. The Michigan Court of Appeals rejected this claim:
Plewa's statement was not offered to prove the truth of
the matter asserted, i.e., to prove that defendant robbed
Graham, or for the purpose of establishing the truth of
Plewa's statement during the interview. Rather,
Plewa's statement was offered to provide context for the
police interview, that is, to show what information was
conveyed to defendant to prompt his responses, and to show
defendant's reaction to Plewa's statement while
giving his own statement. Plewa's statement provided
context for understanding and evaluating defendant's
answers. “[A] statement offered to show the effect of
the out-of-court statement on the hearer does not violate the
Confrontation Clause.” Because the statement was used
for the limited purpose of providing context for
defendant's responses and not to prove the truth of the
matter asserted, it did not constitute hearsay, or a
statement of an absent declarant such that defendant's
confrontation rights were violated.
People v. Mell, 2014 WL 6852989, p. 7 (internal
co-defendant's incriminating confession is admitted at a
joint trial and the co-defendant does not take the stand, a
defendant is denied the constitutional right of
confrontation, even if the jury is instructed to consider the
confession only against the co-defendant. Bruton v.
United States, 391 U.S. 123, 127-28 (1968).
nonhearsay aspects of a co-defendant's confession, which
are offered not to prove what happened at the scene of a
crime, but what happened when the defendant confessed, raise
no Confrontation Clause concerns. Tennessee v.
Street,471 U.S. 409, 414 (1985). Therefore, admission
of a non-testifying witness' statements into evidence
does not violate the Sixth Amendment right to confrontation
where the evidence is not admitted for its truth, but rather,
to show the context of a defendant's statements,
confessions, or admissions. See Cargill v. Turpin,120 F.3d 1366, 1373-75 (11th Cir. 1997); United States v.
Davis,890 F.2d 1373, 1380 (7th Cir. 1989). Stated
differently, where a non-testifying co-defendant's
statement is not admitted for its truth, but to shed light on
the circumstances under which a defendant made his own
confession to the police, it is not ...