United States District Court, W.D. Michigan, Southern Division
T. NEFF, UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Robert James Carter is incarcerated with the Michigan
Department of Corrections at the Ionia Correctional Facility
(ICF) in Ionia County, Michigan. Following a six-day jury
trial in the Wayne County Circuit Court, Petitioner was
convicted of armed robbery, felony murder, and a felony
firearm violation. On November 21, 2016, the court sentenced
Petitioner to concurrent prison terms of 20 to 40 years for
armed robbery and life imprisonment for felony murder, both
consecutive to a sentence of 2 years for felony-firearm.
Michigan Court of Appeals described the facts underlying
Petitioner convictions as follows:
Defendant and Drakile Jones, were convicted in separate jury
trials of robbing and murdering Phillip
Pentecost.1 Around midnight on January 26, 2016,
defendant and Jones went to the home of Justin Harris, with
whom Jones had spoken earlier in the day about getting
together. Shortly before arriving at Harris's house,
Jones called him and inquired about “hitting
licks” (which meant getting some money) and also about
whether Harris had a “stick” (meaning a gun).
Jones informed Harris that he had a friend with him
(defendant), and when Harris indicated he was not interested
in meeting anyone at that time, Jones reassured Harris that
he need not worry because defendant was so loyal to Jones
that “he would blow [Harris] if [Jones] told him to,
” meaning he would “shoot” or
“kill” Harris. Harris did not take this as a
threat, but rather as Jones vouching for defendant's
Jones subsequently arrived at Harris's home with
defendant. Harris was there with a cousin and a friend. Jones
discussed “hitting licks” with Harris and again
asked whether Harris had a “burner” (a gun).
Defendant stood nearby but did not participate in the
discussion. Defendant was armed with a handgun. Eventually,
Jones and defendant left the house. Harris testified that
Pentecost's car, a black Chevrolet HHR, was parked in a
driveway two houses away with the engine running; Harris
could not determine if Pentecost was inside the car.
Harris went back inside, but shortly afterwards he heard a
gunshot, a scream, and then another gunshot. He then saw
Pentecost's car speeding away and went outside to find
Pentecost lying on the ground bleeding from his head. Harris
called 911, got a towel to hold to Pentecost's head, and
stayed with him until the police and ambulance arrived.
Harris found an iPhone next to Pentecost, which he assumed
belonged to Pentecost. He picked it up, but the police took
it from him and later determined that it was defendant's
cell phone. Harris testified that shortly after he went back
inside his home, he spoke on the telephone with Jones who
told him not to admit to the police that he had seen Jones.
Harris was interviewed by the police and did not initially
mention defendant or Jones. However, in later interviews he
admitted that defendant and Jones had been present at his
home, and also told them about Jones's call.
An autopsy determined that Pentecost had been shot twice:
once in the abdomen and once in the head. Either shot would
have been fatal.
Tavion Williams2 testified that defendant came to
his house and asked for his help in hiding a black Chevrolet.
Williams and defendant drove the vehicle around the block and
parked it behind a store. The following morning, defendant
told Williams about the robbery and shooting. Defendant left
at Williams' request. Defendant returned that night and
asked Williams to help dispose of the black Chevrolet;
Williams refused and defendant left.
Subsequently, the fire department discovered a black
Chevrolet HHR on fire behind an abandoned house. It was
determined that the fire had started in the passenger
compartment; a hidden vehicle identification number revealed
the vehicle's owner and it was determined that there was
a “hold for homicide” notification associated
with the vehicle.
Eventually, a search was conducted of defendant's
apartment. The police discovered a leather jacket that had
belonged to Pentecost. The police also used tracking software
to follow where defendant's and Jones's cell phones
had been during the time immediately before the murder and
for the day after the murder. Defendant was interviewed by
the police and gave several inconsistent versions of what
happened during the robbery and murder. Eventually he blamed
the events on Jones, claiming that Jones had forced him to
participate in the robbery and then had shot Pentecost. Based
on this claim, defendant subsequently offered a duress
defense at trial. Defendant also admitted that he drove
Pentecost's vehicle away from the scene and later
disposed of it.
1 Jones was tried by a separate jury some months
before defendant's trial and his appeal, Docket No.
334635, has been submitted jointly with defendant's
2 Williams's first name was spelled Taevion in
(Mich. Ct. App. Op., ECF No. 1-1,
with the assistance of counsel, appealed his convictions to
the Michigan Court of Appeals, raising the same four issues
he raises in this petition. By opinion issued February 20,
2018, the court of appeals affirmed the trial court.
(Id., PageID.77-87.) Petitioner, again with the
assistance of counsel, then sought leave to appeal in the
Michigan Supreme Court. By order entered September 12, 2018,
the supreme court denied leave to appeal. (Mich. Order, ECF
No. 1-1, PageID.89.) On November 3, 2019, Petitioner timely
filed his habeas corpus petition raising the four grounds for
relief he had raised in the Michigan appellate courts:
I. Was Defendant's trial counsel constitutionally
ineffective for not calling Tavion Williams as a witness
where Mr. Williams was essentially a res gestae witness who
was personally involved in this crime, and would have
provided testimony consistent with the Defendant's own
duress defense and testimony, and was readily available
having testified at Drakile Jones' trial? Is an
evidentiary hearing unnecessary to establish ineffective
assistance as the transcript of Tavion Williams' prior
testimony is attached hereto for this Court's
consideration? Was this not harmless error and is a new trial
II. Did Judge Kenny abuse his discretion by finding that the
prosecutor had exercised due diligence in bringing res gestae
witness Anthony Cox-Rodgers to court, and then allowing
Anthony Cox-Rodgers' prior testimony to be read into the
record because Mr. Cox-Rodgers was making himself scarce
despite having appeared for the first day of trial. This
evidence tainted the trial, was not harmless, and a new trial
III. Judge Kenny clearly erred by finding that hearsay
statements of Drakile Jones, presented through Justin Harris,
were admissible, under the co-conspirator exception. This
evidence tainted the trial, was not harmless, and a new trial
IV. Judge Kenny clearly erred when he found that the
Defendant's statement prior to being read his Miranda
warnings, while he was in custody, which revealed his iPhone
passcode to law enforcement, was testimonial and should have
been suppressed, and the evidence obtained as a result
including the prejudicial firearms photos used as evidence at
trial should have been suppressed as well.
(Pet., ECF No. 1, PageID.3) (corrected for spelling and
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for 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). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Lopez v. Smith, 574 U.S. 1, 4
(2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013);
Parker v. Matthews, 567 U.S. 37, 48-49 (2012);
Williams, 529 U.S. at 381-82; Miller v.
Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover,
“clearly established Federal law” does not
include decisions of the Supreme Court announced after the
last adjudication of the merits in state court. Greene v.
Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is
limited to an examination of the legal landscape as it would
have appeared to the Michigan state courts in light of
Supreme Court precedent at the time of the state-court
adjudication on the merits. Miller v. Stovall, 742
F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565
U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘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.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. 415, 424 (2014) (internal quotations omitted).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc);
Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
contends that his counsel was ineffective for failing to call
Tavion Williams to bolster Petitioner's defense that he
committed the crimes under duress. Petitioner testified that
when he balked at going forward with the robbery of
Pentecost, Jones threatened to shoot him. Williams testified
at Jones' trial. Although he did not witness the threats,
Petitioner did indicate to Williams, the next day, that Jones
Prosecutor: Did Robert Carter say that he was with Drakile?
Williams: Yes. That's what he said.
Prosecutor: Did he say that he and Drakile were looking to
make some money?
Prosecutor: Did he say that he and Drakile were looking to
Prosecutor: He used those words?
Prosecutor: What did he say then?
Williams: He said that they had found someone in particular
who they ...