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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARICK ANDERSON,


Petitioner,

Case Number 11-CV-15531
Honorable Gershwin A. Drain



DEBRA SCUTT,

____________________________________________/

Respondent.

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING

PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS

This matter is before the Court on Petitioner Darick Anderson’s petition for a writ of habeas

corpus filed under 28 U.S.C. § 2254. On March 10, 2009, Petitioner was convicted in the Ottawa

Circuit Court after a jury trial of two counts of first-degree premeditated murder, MICH. COMP.

LAWS § 750.316(1), two counts of first-degree felony murder, MICH. COMP. LAWS § 750.316(1)(b),

and one count of armed robbery, MICH. COMP. LAWS § 750.529. Petitioner was sentenced as a

fourth time habitual felony offender to mandatory life imprisonment for the murder convictions, and

450-to-675 months for the armed robbery conviction. The petition claims that: (1) pretrial publicity

rendered Petitioner’s trial unfair; (2) the trial court and defense counsel failed to take action during

Petitioner’s outbursts during his testimony; (3) the trial court erroneously refused to instruct the jury

on duress; (4) the trial court erroneously admitted prior bad acts evidence; (5) Petitioner’s right to

confrontation was denied by the admission of hearsay evidence from a non-testifying lab analyst;

(6) Petitioner’s trial was rendered unfair by the admission of prejudicial evidence regarding a

personal protection order entered against him; and (7) Petitioner’s warrantless arrest was illegal. The

Court finds that Petitioner’s claims are without merit. Therefore, the petition will be denied. The

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Court will also deny Petitioner a certificate of appealability and deny permission to proceed on

appeal in forma pauperis.

I. Facts and Procedural History

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 Wagner v.

Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the shooting deaths of Robert Karell and
Louis Paparella during a robbery at R.K. Jewelers in Grand Haven on July 2, 2008.
Also charged in the offense was defendant's brother, Dmitri Anderson. The two
brothers were tried separately, with Dmitri being tried first. Defendant was
connected to the crime by both direct and circumstantial evidence. Witness testimony
established that defendant was away from his home during the timeframe in which
the offense was committed. Defendant's fingerprint was found on a cigar box that
Karell kept in a safe and used to store money. Items from the jewelry store were also
discovered during a subsequent search of defendant's residence. In addition, a stack
of $100 bills was stolen during the robbery and the police found an envelope
containing $5,000 in $100 bills in the garage of defendant's residence, and DNA
matching defendant's DNA was found on the envelope. Defendant, who was
unemployed, also purchased two mopeds for $1,850 on the day after the offense,
using $100 bills to pay for them. A firearm that was linked to the offense through
ballistics testing was discovered buried in the ground at the house of defendant's
relative. That weapon had been stolen from another house a few days before the
jewelry store robbery and evidence was presented connecting defendant to that
earlier break-in. At trial, defendant admitted that he buried the murder weapon after
the offense. Defendant also admitted being present during the offense, but denied
shooting the victims or knowing that a robbery was going to be committed. He
refused to identify who committed the crime and shot the victims.

People v. Anderson, No. 292072, 2010 WL 3984801 (Mich. Ct. App. Oct. 12, 2010).

Following his conviction and sentencing, Petitioner filed an appeal of right. His appellate

brief raised the same issues that he raises in the instant petition. The Michigan Court of Appeals

affirmed in an unpublished opinion. Id. Petitioner filed an application for leave to appeal in the

Michigan Supreme Court, raising the same claims, but it was denied by standard order. People v.

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Anderson, 488 Mich. 1048 (2011) (table). Petitioner then filed his current application for habeas

relief.

II. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if

he can show that the state court’s adjudication of his claims on the merits-

(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 on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.


28 U.S.C. § 2254(d).

A 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.

The Supreme Court has explained that “[a] federal court’s collateral review of a state-court

decision must be consistent with the respect due state courts in our federal system.” Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the

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doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)((quoting Lindh v. Murphy,

521 U.S. 320, 333, n. 7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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, 131 S.Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories

supported or...could have supported, the state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are inconsistent with the

holding in a prior decision” of the Supreme Court. Id. “[I]f this standard is difficult to meet, that is

because it was meant to be.” Harrington, 131 S. Ct. at 786.

Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal

courts from relitigating claims that have previously been rejected in the state courts, it preserves the

authority for a federal court to grant habeas relief only “in cases where there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with” the Supreme Court’s

precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error

correction through appeal.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens,

J., concurring in judgment)). 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

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possibility for fairminded disagreement.” Id., at 786-787.

III. Analysis

A. Pretrial Publicity

Petitioner first claims that his trial was rendered fundamentally unfair by the prejudicial

effects of pretrial publicity. Petitioner filed a motion for change of venue in the trial court on this

basis, but he agreed to adjourn the hearing on the motion until the time of trial. The motion was

never renewed. The Michigan Court of Appeals thereafter found that Petitioner failed to

demonstrate that the pretrial publicity was extensive enough to overcome the presumption of juror

impartiality.

In Skilling v. United States, 130 S.Ct. 2896 (2010), the Supreme Court reviewed the

established federal law relating to claims of a denial of a right to a trial by an impartial jury by virtue

of prejudicial pretrial publicity. The Skilling Court reiterated that “the theory of our trial system is

that the conclusions to be reached in a case will be induced only by evidence and argument in open

court, and not by any outside influence, whether of private talk or public print.” Id. at 2914 (quoting

Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 462 (1907)). After describing

Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v.

Maxwell, 384 U.S. 333 (1966), as cases where convictions had been overturned because the trial

atmosphere “was utterly corrupted by press coverage,” the Court indicated that those “decisions,

however, ‘cannot be made to stand for the proposition that juror exposure to ... news accounts of the

crime ... alone presumptively deprives the defendant of due process.’” Id. at 2914 (quoting Murphy

v. Florida, 421 U.S. 794, 798–99 (1974)). “The petitioner bears the burden of showing utter

corruption of the proceedings.” Dobbert v. Florida, 432 U.S. 282, 303 (1976). “Prominence does

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not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require

ignorance.” Skilling, 130 S.Ct. at 2914–15 (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961)

(emphasis in original). “A presumption of prejudice, our decisions indicate, attends only the extreme

cases.” Skilling, 130 S.Ct. at 2914–15. “Pretrial publicity—even pervasive, adverse publicity—does

not inevitably lead to an unfair trial.” Id. at 2916 (quoting Nebraska Press Assn. v. Stuart, 427 U.S.

539, 554 (1976)). “To hold that the mere existence of any preconceived notion as to the guilt or

innocence of an accused, without more, is sufficient to rebut a presumption of a prospective juror's

impartiality would be to establish an impossible standard.” Irvin, 366 U.S. at 723. “It is sufficient

if the juror can lay aside his impression or opinion and render a verdict based on the evidence

presented in court.” Id. A trial court's finding of impartiality as to a juror should not be set aside

unless the error is manifest. Id. at 723–24. Where there is no presumed prejudice, a court looks next

to whether actual prejudice infected the jury. Id. at 2917; see also Ritchie v. Rogers, 313 F.3d 948,

956 (6th Cir. 2002).

The state court did not unreasonably deny this claim. The evidence of pretrial publicity

submitted by Petitioner to the state courts consisted of typical news reports related to the facts

surrounding the crime. There is no evidence of a circus atmosphere occurring at trial. There is no

evidence of a public outcry against Petitioner. And nothing in the news reports was designed to

inflame or incite the passions of the public. During the jury voir dire, all of the jurors indicated that

they had not formed an opinion regarding Petitioner’s guilt, and they all indicated that they could

disregard any stories they had heard about the case. The state courts acted well within the bounds

of clearly established Supreme Court law in denying this claim. Petitioner’s has therefore not

demonstrated entitlement to habeas relief based on pretrial publicity.

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B. Petitioner’s Outbursts at Trial

Petitioner’s second claim concerns incidents during his own direct examination testimony

when he railed against this defense counsel, accusing him of being in league with the prosecutor.

Petitioner claims that when his occurred the trial court had an obligation to conduct a competency

hearing and appoint substitute counsel to represent him.

The state court's decision denying this claim is neither contrary to Supreme Court precedent

nor an unreasonable application thereof. The trial court acted within its discretion in denying

Petitioner’s requests as Petitioner's own poor conduct formed the basis for his motions. See, e.g.,

United States v. Williams, 428 F. App'x 723, 725 (9th Cir. 2011) (ruling that trial court did not abuse

its discretion in denying mistrial motion based upon defendant's own misconduct, which was so

severe it required his removal); United States v. Harris, 2 F.3d 1452, 1456 (7th Cir. 1993) (affirming

trial court's denial of mistrial motion following defendant's outburst because the defendant "should

not profit from his outburst.").

In any event, Petitioner is not entitled to habeas relief based upon the trial judge's failure to

appoint substitute counsel for him in the midst of trial. The Sixth Amendment right to the assistance

of counsel does not guarantee a criminal defendant that he or she will be represented by a particular

attorney. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1351 (6th Cir. 1993) (citing

Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)). "Although a criminal defendant is

entitled to a reasonable opportunity to obtain counsel of his choice, the exercise of this right must

be balanced against the court's authority to control its docket." Lockett v. Arn, 740 F.2d 407, 413

(6th Cir. 1984). And the right to counsel of choice may not be used to unreasonably delay a trial. See

Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981).

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"A defendant is required to show good cause for a request to substitute counsel and to do so

in a timely manner." See United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). In

determining whether a court abuses its discretion in denying a motion for substitute counsel, a

reviewing court should consider the timeliness of the motion, the adequacy of the trial court's inquiry

into the defendant's complaint, whether the conflict between the attorney and the client is so

significant that it resulted in a total lack of communication which prevented an adequate defense,

and a balancing of these factors with "the public's interest in the prompt and efficient administration

of justice." Id. (citing United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)).

Here, Petitioner's request for substitute counsel — made in the midst of trial after the

prosecutor had rested — was untimely. The trial court judge could have simply denied Petitioner's

request for substitute counsel for that reason alone. United States v. Sullivan, 431 F.3d 976, 980 (6th

Cir. 2005). In fact, however, Petitioner’s complaints were unfounded. A fair reading of the trial

record shows that his counsel was performing competently and ably presented Petitioner’s defense

that his brother was the perpetrator of the crime, and that Petitioner had no prior knowledge about

his brother’s plans. Interspersed with his outbursts, Petitioner also testified to his own exculpatory

version of the events. When it appeared to counsel that Petitioner was doing more harm than good

for his own defense, counsel attempted to reign Petitioner in and finally was able to convince

Petitioner to end his testimony. The state court’s conclusion that Petitioner had not shown good

cause for substitute counsel is therefore reasonably supported by the trial record.

With respect to the trial court’s failure to sua sponte adjourn the case for a competency

evaluation, the record also supports the state court’s conclusion that no such evaluation was

warranted. "The constitutional test is whether the accused 'has sufficient present ability to consult

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with his lawyer with a reasonable degree of rational understanding—and whether he has a rational

as well as factual understanding of the proceedings against him.'" Williams v. Bordenkircher, 696

F.2d 464, 466 (6th Cir. 1983) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)); see also

18 U.S.C. § 4241 ("The court shall grant [a motion to determine a defendant's competency], or shall

order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering him mentally incompetent.").

A court must conduct a competency hearing when there is information known to the court

sufficient to raise doubts about a defendant's competency. See Pate v. Robinson, 383 U.S. 375, 385

(1966); United States v. White, 887 F.2d 705, 709 (6th Cir. 1989). "In determining a defendant's

competence, courts consider several factors, such as 'evidence of a defendant's irrational behavior,

[the defendant's] demeanor at trial, and any prior medical opinion on competence to stand trial.'"

United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008) (quoting Drope v. Missouri, 420 U.S. 162,

180 (1975)). A trial court's determination of competency is a factual finding entitled to a

presumption of correctness, and can only be refuted by clear and convincing evidence. Mackey v.

Dutton, 217 F.3d 399, 411, 413 (6th Cir. 2000).

Nothing about Petitioner’s rant indicated that he was not competent to stand trial. Certainly,

Petitioner was upset by the way the trial seemed to be progressing, and he decided to express this

by accusing his counsel of misconduct. But nothing he said indicated that he did not understand the

nature of the proceedings against him or cause doubt about his ability to communicate with counsel.

Petitioner may not have desired to communicate constructively with counsel, but nothing in the

record suggests that he did not have the ability to do so. Accordingly, the rejection of this claim by

the state court was also reasonable.

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C. Failure to Instruct Jury on Duress

Petitioner asserts that the trial court erred in failing to instruct the jury on the defense of

duress. Petitioner stated that he went along with his brother during the shooting because he feared

that his brother would kill him if he did not cooperate. The Michigan Court of Appeals found, as a

matter of state law, Petitioner was not entitled to a duress defense to the crime of murder.

Under Michigan law, duress is not a defense to murder or other criminal activity that leads

to a person's death. See, e.g., People v. Moseler, 202 Mich. App. 296, 299 (1993) (duress not a

defense to involuntary manslaughter); People v. Etheridge, 196 Mich. App. 43, 56 (1992) (duress

defense not available in case where defendant charged with both premeditated and felony murder);

People v. Travis, 182 Mich. App. 389, 392 (1990) (duress not a defense to homicide); see also

Gimotty v. Elo, 40 F. App'x 29, 32-33 (6th Cir. 2002) (duress not a defense to felony murder).

It is not the province of a federal habeas court to re-examine state-law determinations on

state-law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As a result, the state court's

determination about the inapplicability of the defense of duress to the facts of Petitioner’s case is

not subject to habeas review in this Court. Petitioner has not cited to any constitutional entitlement

to have the jury instructed on the defense of duress solely on the basis of Petitioner's claim that he

was subjected to coercion, even coercion implicating personal risks. Accordingly, the state court’s

determination that Petitioner was not entitled to a jury instruction on the defense of duress is not

reviewable by this Court.

D. Prior Bad Acts Evidence

Petitioner next argues that the trial court erred by allowing the prosecutor to admit evidence

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of two prior home invasions. One prior home invasion involved the theft of the handgun used in the

murder two days prior to the shooting. The second home invasion occurred within hours of the first

one, and involved the theft of jewelry later recovered from Petitioner’s residence. The prosecutor’s

theory was that the same person committed both home invasions, and that person was therefore the

one who obtained the gun used in the murder.

It is "not the province of a federal habeas court to reexamine state-court determinations on

state-court questions." Estelle, supra. A federal court is limited in federal habeas review to deciding

whether a state court conviction violates the Constitution, laws, or treaties of the United States. Id.

Thus, errors in the application of state law, especially rulings regarding the admissibility of

evidence, are usually not questioned by a federal habeas court. See Seymour v. Walker, 224 F. 3d

542, 552 (6th Cir. 2000); see also Gross v. Warden, Lebanon Correctional Inst., 426 Fed. Appx.

349, 362, n. 5 (6th Cir. 2011).

Petitioner's claim that the state court violated M.R.E. 404(b) or any other provision of state

law by admitting evidence of his prior home invasions is non-cognizable on habeas review. See Bey

v. Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court's habeas

powers did not permit Court to reverse state court conviction based on their belief that the state trial

judge erred in ruling that prior injury evidence was admissible as bad acts evidence under California

law); Dowling v. U.S., 493 U.S. 342, 352-53 (1990) (admission at defendant's bank robbery trial of

"similar acts" evidence that he had subsequently been involved in a house burglary for which he had

been acquitted did not violate due process). The admission of this "prior bad acts" or "other acts"

evidence against Petitioner at his state trial does not entitle him to habeas relief, because there is no

clearly established Supreme Court law which holds that a state violates a habeas petitioner's due

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process rights by admitting propensity evidence in the form of "prior bad acts" evidence. See Bugh

v. Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003); see also Adams v. Smith, 280 F. Supp. 2d 704, 716

(E.D. Mich. 2003). Given the lack of holdings by the Supreme Court on the issue of whether a state

court violates a habeas petitioner's due process rights by the admission of evidence to establish the

petitioner's propensity to commit criminal acts, the Michigan Court of Appeals' rejection of

Petitioner's first and second claims was not an unreasonable application of clearly established federal

law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77

(2006).

E. Admission of Hearsay by Lab Tech



Petitioner next claims that his confrontation rights were violated by the admission of

evidence that his DNA was discovered on a rag found in the garage where items of jewelry were

stolen, and near the home where the gun used in the murder was stolen. Kate Dozeman, a laboratory

analyst testified to the DNA evidence, but another analyst had performed the testing on the rag. The

Michigan Court of Appeals found that Petitioner’s confrontation rights were therefore violated, but

it found that any error was harmless.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court held that a forensic

laboratory report, created specifically to serve as evidence in a criminal proceeding, constituted

testimonial hearsay for Confrontation Clause purposes, and that such a report may not be introduced

without the prosecution offering a live witness competent to testify to the truth of the report's

statements. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709 (2011). In Bullcoming the Court

clarified that under Melendez-Diaz, the prosecution may not present "surrogate" testimony by an

analyst that did not sign the report or observe or perform the tests reflected in the report; rather,

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"[t]he accused's right is to be confronted with the analyst who made the certification." Bullcoming,

131 S. Ct. at 2710. The analyst who performed the testing did not testify at Petitioner’s trial.

Accordingly, the state courts correctly determined that the hearsay identifying the DNA found on

the rag as belonging to Petitioner was improperly admitted.

Nonetheless, a violation of the Confrontation Clause can be harmless error. Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986). In a habeas proceeding, the appropriate harmless error standard

to apply is whether the error had a substantial and injurious effect or influence in determining the

jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

The DNA test at issue indirectly connected Petitioner to the murder weapon. The rag was

found in the garage of a home from which various pieces of jewelry were stolen near in time and

location to another home invasion from which the murder weapon was stolen. The prosecutor’s

theory was that the same man committed both home invasions. Therefore, the fact that Petitioner’s

DNA was found in one of the home’s helped to connect him to the murder weapon. However, the

DNA evidence was far from the only evidence connecting Petitioner to the home invasions. Most

pointedly, pieces of jewelry stolen from the home were later found in Petitioner’s home - also

directly linking him to that home invasion. Moreover, Petitioner admitted to police that he buried

the murder weapon, tying him to the weapon independently from the home invasions.

Setting aside the evidence tying Petitioner to the murder weapon, there was other compelling

evidence of his guilt. Petitioner’s fingerprint was found on the cigar box that had contained the cash

stolen from the jewelry store. The box was found laying on the floor in the store after the robbery.

Jewelry stolen from the store was found in Petitioner’s residence. Petitioner’s DNA was found on

an envelope in his girlfriend’s basement that contained $5,000 in $100 bills. Petitioner’s uncle

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described a conversation he had with Petitioner and his brother in which a robbery of the jewelry

store was eluded to. During the conversation, Petitioner stated that if he committed such a robbery

he would know how to “lay down,” that is kill, the victims. Petitioner also had a conversation with

his other brother, Augustus Butts, describing how–in theory–he would commit a robbery and shoot

the victim right after he opened the safe. This description jibed with the position in which the

jewelry store owner’s body was found. The day after the murders, Petitioner–who was

unemployed–paid cash for the purchase of two mopeds. The seller saw that Petitioner had a large

wad of cash. While in jail, Petitioner wrote a letter admitting that he was present during the shooting,

but tried to blame his brother. Bullet casings from the murder weapon were found in a garbage bag

located in Petitioner’s girlfriend’s father’s house. The murder weapon was found buried behind the

house Petitioner stayed at two days after the murders. Other items stolen from the house from which

the murder weapon was stolen were also found in Petitioner’s house, including a roll of coins, a

knife, and a stereo. Petitioner had even written his name on the roll of coins.

In other words, the evidence of Petitioner’s guilt was quite weighty. Although the DNA on

the rag helped indirectly connect him to the murder weapon, it did not have a substantial impact on

the outcome of the trial. He would have been convicted without it. Accordingly, Petitioner is not

entitled to habeas relief based on this claim.

F. PPO Evidence

Petitioner asserts that testimony by Herkie Jewell that there was a personal protection order

against Petitioner was unfairly prejudicial. During his testimony, Jewell described driving Petitioner

and his brother to city hall, and stated that he gave them a ride because Petitioner had to deal with

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a personal protection order.

To the extent that Petitioner contends that evidence of the prior bad acts should have been

excluded under M.R.E. 403 for being more prejudicial than probative, he is not entitled to habeas

relief. Appraisals of the probative and prejudicial value of evidence are entrusted to the sound

discretion of a state trial court judge, and a federal court considering a habeas petition must not

disturb that appraisal absent an error of constitutional dimensions. See Dell v. Straub, 194 F. Supp.

2d 629, 645 (E.D. Mich. 2002). Although the reason for the trip to city hall was largely irrelevant,

this brief reference certainly did not raise to an error of constitutional dimensions. It had no

determination on the outcome of the trial. "An error is harmless unless it 'had substantial and

injurious effect or influence in determining the jury's verdict.'" Fry v. Pliler, 551 U.S. 112, 116

(2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).

G. Warrantless Arrest

Petitioner’s final claim asserts that he is entitled to habeas relief based upon an alleged

violation of the Fourth Amendment. Specifically, he asserts that the police did not have probable

cause to arrest him, and that evidence obtained as a result of the illegal arrest should have been

suppressed.

Federal courts will not address a Fourth Amendment claim on habeas review if the petitioner

had a full and fair opportunity to litigate the claim in state court and the presentation of the claim

was not thwarted by any failure of the state's corrective processes. See Stone v. Powell, 428 U.S.

465, 494-95 (1976). A court must perform two distinct inquiries when determining whether a

petitioner may raise a claim of illegal arrest in a habeas action. First, the "court must determine

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whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth

amendment claim. Second, the court must determine whether presentation of the claim was in fact

frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th

Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).

"Michigan has a procedural mechanism which presents an adequate opportunity for a

criminal defendant to raise a Fourth Amendment claim." Robinson v. Jackson, 366 F. Supp. 2d 524,

527 (E.D. Mich. 2005). This procedural mechanism is a motion to suppress, ordinarily filed before

trial. See People v. Ferguson, 376 Mich. 90, 93-94 (1965) (describing the availability of a pre-trial

motion to suppress); see also People v. Harris, 95 Mich. App. 507, 509 (1980) (analyzing the

legality of a warrantless search, seizure, and arrest even though raised for the first time on appeal).

Consequently, Petitioner is entitled to relief on this issue only if he establishes that he was prevented

from litigating the Fourth Amendment issue by a failure of Michigan's procedural mechanism.

Petitioner has not done so. The record reveals that Petitioner challenged the propriety of his

arrest under the Fourth Amendment by raising the issue in a supplemental brief filed in the Michigan

Court of Appeals during his direct appeal. The Michigan Court of Appeals denied relief on the

merits. Consequently, it is clear that the Michigan courts were cognizant of Petitioner's Fourth

Amendment claim and that he received all the process he was due. Accordingly, his claim

challenging the validity of his arrest is not cognizable on habeas review pursuant to Stone v. Powell.

Habeas relief is not warranted.

Petitioner also asserts that his counsel was ineffective for failing to raise his Fourth

Amendment challenge in the trial court. A habeas petitioner may base an ineffective assistance of

counsel claim on an assertion that trial counsel failed to properly litigate a Fourth Amendment issue.

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See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). To obtain relief on such a claim, the

petitioner must "prove that his Fourth Amendment claim is meritorious and that there is a reasonable

probability that the verdict would have been different absent the excludable evidence" in order to

demonstrate actual prejudice. Id.; see also Joshua v. DeWitt, 341 F.3d 430, 437-38 (6th Cir. 2003).

The record shows that the police had a warrant to search his home. Even if Petitioner's arrest was

illegal, the items seized from his home pursuant to the search warrant were not suppressible fruits

of the arrest. Because such a suppression motion would have failed, and given the significant

properly-admitted evidence of guilt presented at trial, Petitioner cannot establish that trial counsel

erred or that he was prejudice by counsel's conduct. See, e.g., Martin v. Mitchell, 280 F.3d 594, 607

(6th Cir. 2002) (denying habeas relief on similar claim).

IV. Certificate of Appealability

Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28

U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). When a district court denies a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the district court’s

assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a court may not conduct a full merits

review, but must limit its examination to a threshold inquiry into the underlying merit of the claims.

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Id. at 336-37. The Court concludes that a certificate of appealability is not warranted in this case

because reasonable jurists could not debate the Court’s assessment of Petitioner’s claims. The Court

will also deny Petitioner permission to proceed on appeal in forma pauperis because an appeal could

not be taken in good faith.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is

DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that permission to proceed on appeal in forma pauperis is

DENIED.

Dated: July 30, 2013



s/ Gershwin A. Drain
Honorable Gershwin A. Drain
United States District Judge



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