Joshua Tackett v. Tony Trierweiler ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0114p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSHUA JOSEPH TACKETT, ┐
Petitioner-Appellant, │
│
> No. 19-1037
v. │
│
│
TONY TRIERWEILER, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cv-15637—Denise Page Hood, Chief District Judge.
Argued: February 5, 2020
Decided and Filed: April 15, 2020
Before: GILMAN, McKEAGUE, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Laura Kathleen Sutton, Manchester, Michigan, for Appellant. Rebecca A. Berels,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: Laura Kathleen Sutton, Manchester, Michigan, for Appellant. Rebecca A. Berels,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. In July 2006, a drive-by shooting took place in
Ypsilanti, Michigan, during which two people inside a trailer were killed. Four individuals,
including Joshua Joseph Tackett, were charged with murder in connection with the killings.
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Tackett was tried before a Michigan state-court jury and was found guilty on two counts of first-
degree murder and on two counts of possessing a firearm during the commission of a felony. He
was sentenced to life imprisonment without parole for the first-degree murder convictions.
After going through various state-court proceedings and being denied relief at each stage,
Tackett filed a petition for a writ of habeas corpus in federal court. He raised a number of claims,
including, most notably, that the evidence in his case was insufficient to support his first-degree
murder convictions. The district court denied Tackett’s petition. On appeal, five claims are before
us, including the sufficiency-of-the-evidence claim. For the reasons set forth below, we AFFIRM
the judgment of the district court.
I. BACKGROUND
A. Factual background
The shooting in this case occurred at a mobile-home trailer belonging to Clint Ousley at
approximately 11:30 p.m. on the night of July 9, 2006. Two teenagers were killed: Scott Bonar,
who was 17 years old at the time, and Krilissa Feldman, who was 14.
On the day of the shooting, there were two confrontations at Ousley’s trailer. The first
incident took place that afternoon when one of Tackett’s codefendants, Sarah Sykes, along with a
group of individuals including the two other codefendants (Paul Copas and Tony Tard), drove in
Copas’s van to Ousley’s trailer. Tackett was not present for this incident. The district court
summarized what happened there as follows:
Copas confronted Ousley outside Ousley’s trailer and called Ousley a bitch; he also
made a motion like he was cocking a gun. Ousley picked up a baseball bat and
called for help from two of his friends who were inside his trailer. Ousley and his
friends then argued with Copas and Tard for a few minutes. Copas and Tard
retreated soon afterward and jumped back in their van. As they drove away, Ousley
threw a crowbar into the rear side window of the van and knocked out the window.
This confrontation was apparently triggered by the fact that Ousley had previously dated Sykes.
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After the initial altercation at Ousley’s trailer, Tackett joined Copas and Tard. The
Michigan Court of Appeals described what happened next during the second incident that took
place later that night:
The group left the house with two assault rifles, picked up codefendant Sykes and
others, and traveled from Ecorse to Ousley’s trailer home in Ypsilanti. When they
were near Ousley’s trailer, codefendant Tard stopped at a gas station and covered
the license plate, and defendant Tackett moved from the passenger seat to the rear
of the van near the broken window. Defendant Tackett put on gloves and supplied
gloves or socks for the others. Codefendant Sykes continued to the trailer park. The
van pulled over and waited until a patrol car left the area. As they waited,
codefendant Tard said, “let’s shoot up the trailer,” and defendant Tackett “[went]
along with him.” After the patrol car left the area, the van continued to Ousley’s
trailer and the three men put on hooded sweatshirts. There was evidence that
defendant Tackett shot or attempted to shoot a handgun while his codefendants
fired assault rifles into Ousley’s trailer. After the shooting, the group drove back
to Ecorse where defendant Tackett attempted to hide the assault rifles in his father’s
garage.
People v. Copas, Nos. 277240 & 277549, 2008 WL 4149002, at *9 (Mich. Ct. App. Sept. 9, 2008)
(per curiam).
B. Procedural background
Tackett and Copas were tried jointly, but before separate juries, in the Washtenaw County
Circuit Court. In January 2007, both Tackett and Copas were found guilty on two counts of first-
degree murder and on two counts of possessing a firearm during the commission of a felony.
Tackett moved for a new trial and for a judgment notwithstanding the verdict. The trial court
denied both motions. Afterwards, he and Copas were each sentenced to life imprisonment without
parole for the first-degree murder convictions, to be served consecutive to two concurrent two-
year terms of imprisonment for the felony-firearm convictions.
The other two defendants, Sykes and Tard, pleaded guilty to two counts of “open murder”
and to two counts of possessing a firearm during the commission of a felony. Michigan’s “open
murder” statute, Mich. Comp. Laws § 750.318, “establishes a procedure for determining the
degree of murder when the information does not charge the defendant with a specific degree of
murder.” People v. Watkins, 634 N.W.2d 370, 376 (Mich. Ct. App. 2001).
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When a person charged with murder in Michigan is convicted by a jury, the jury is required
to determine whether it is first-degree or second-degree murder. In contrast, “when a defendant is
‘convicted by confession,’ the court must ‘proceed by examination of witnesses to determine the
degree of the crime’ and ‘render judgment accordingly.’” Id. (quoting Mich. Comp. Laws
§ 750.318). The trial judge in Sykes’s and Tard’s cases, who was the same state-court judge who
presided over Tackett’s trial, held a “degree hearing” for Sykes and Tard and found both of them
guilty of second-degree murder. They were each sentenced to life imprisonment with the
possibility of parole for the murder convictions, plus two years for the felony-firearm offenses.
Tackett appealed his convictions to the Michigan Court of Appeals. That court
consolidated Tackett’s and Copas’s appeals and affirmed the trial court’s judgment. Copas,
2008 WL 4149002, at *1. Tackett next filed an application for leave to appeal to the Michigan
Supreme Court. That Court, in turn, denied his motion, writing that it was “not persuaded that the
questions presented should be reviewed by this Court.” People v. Tackett, 759 N.W.2d 207, 207
(Mich. 2009) (mem.).
Tackett subsequently filed a motion for relief from judgment, raising a number of distinct
claims. Of particular note, Tackett argued that his first-degree murder convictions violated his
due-process and equal-protection rights because his codefendants, Sykes and Tard, were found
guilty on the lesser charge of second-degree murder. The trial-court judge was sympathetic to
Tackett’s argument, stating that “it is unjust and a miscarriage of justice that Defendant Tackett be
convicted and sentenced for First Degree Murder while codefendants Tard and Sykes were
subsequently convicted and sentenced for Second Degree Murder.” People v. Tackett, No.
06-1194 FC, slip op. at 5 (Washtenaw Cty. Cir. Ct. Nov. 5, 2010). Nevertheless, the court denied
Tackett’s motion for relief from judgment because the trial-court judge did not believe that he had
the power under state law to grant the requested relief. He instead urged appellate review to
provide “further guidance” to trial judges operating under these circumstances. Id. at 7. Tackett
then filed an application for leave to appeal the Michigan trial court’s decision, but both the
Michigan Court of Appeals and the Michigan Supreme Court denied his application.
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In December 2012, Tackett filed his petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Michigan. After the State filed an answer to the petition,
Tackett moved for a stay until Michigan’s appellate courts could decide, in an unrelated case,
whether trial courts may correct unjust convictions and grant relief from judgment under Michigan
state law. The district court granted Tackett’s motion for a stay. Several years later, in May 2016,
Tackett moved for the stay to be lifted on the ground that the Michigan courts were unlikely to
resolve the relevant issue in the near future. The district court granted his motion and reopened
the case.
In its decision, the district court reviewed Tackett’s habeas petition and rejected all of his
claims on the merits. It did, however, determine that reasonable jurists could conclude that three
of Tackett’s claims—regarding the sufficiency of the evidence, the disparate verdicts, and whether
Tackett received ineffective assistance of appellate counsel—deserved to proceed further.
The court accordingly granted a Certificate of Appealability (COA) with respect to those claims.
Tackett proceeded by filing a notice of appeal and a motion in this court to expand the
COA. This court granted the motion to the extent of expanding the COA to include Tackett’s
claim that the trial court erred by failing to instruct the jurors that they had to agree on a single
theory of murder, and by allowing argument on certain portions of his ineffective-assistance-of-
trial-counsel claim. These claims, along with those previously certified by the district court, are
now before us.
II. ANALYSIS
A. Standard of review
We review the district court’s legal conclusions in habeas proceedings de novo and its
findings of fact under the clear-error standard. Braxton v. Gansheimer, 561 F.3d 453, 457 (6th
Cir. 2009). Federal courts may not provide relief on habeas claims that were previously
adjudicated on the merits in state court unless the state-court adjudication either (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
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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 state-court decision is “contrary
to” clearly established federal law if the state court “applies a rule that contradicts the governing
law set forth in the Supreme Court’s cases, or if the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
result different from the Supreme Court’s precedent.” Ayers v. Hall, 900 F.3d 829, 835 (6th Cir.
2018) (brackets, citations, and internal quotation marks omitted).
B. Sufficiency of the evidence
Tackett’s first claim is that there was insufficient evidence to support his first-degree
murder convictions. With regard to this claim, the Supreme Court has long held that the Due
Process Clause protects any defendant “against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship,
397 U.S. 358, 364 (1970). It has further elaborated that “the critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction” is
not simply to determine whether the jury was properly instructed, but to determine
whether the record evidence could reasonably support a finding of guilt beyond a
reasonable doubt. But this inquiry does not require a court to ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.
Instead, the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (citations, footnotes, and internal quotation
marks omitted) (emphases in original).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, a
federal court’s “review of a state-court conviction for sufficiency of the evidence is very limited.”
Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018). Sufficiency-of-the-evidence claims, in
light of both Jackson and AEDPA, face a high bar in habeas proceedings because they are subject
to two layers of deference:
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First, on direct appeal, it is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from evidence admitted at trial. A reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the jury. And second, on habeas
review, a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
with the state court. The federal court instead may do so only if the state court
decision was objectively unreasonable.
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (citations and internal quotation marks
omitted).
The Jackson standard “must be applied with explicit reference to the substantive elements
of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In the case before
us, Tackett was convicted of first-degree murder under Mich. Comp. Laws § 750.316, which
proscribes, among other things, any “willful, deliberate, and premeditated killing.” The elements
of first-degree murder under this statute are “(1) the intentional killing of a human (2) with
premeditation and deliberation.” People v. Bennett, 802 N.W.2d 627, 633 (Mich. Ct. App. 2010).
An individual may be liable for murder either as a principal or as an aider or abettor. Id.;
see also Mich. Comp. Laws § 767.39 (“Every person concerned in the commission of an offense,
whether he directly commits the act constituting the offense or procures, counsels, aids, or abets
in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished
as if he had directly committed such offense.”). The elements of aiding and abetting are:
(1) the crime charged was committed by the defendant or some other person; (2) the
defendant performed acts or gave encouragement that assisted the commission of
the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that the defendant
gave aid and encouragement.
Bennett, 802 N.W.2d at 633 (brackets, citations, and internal quotation marks omitted).
1. Whether some other person committed the crime
At the outset, Tackett contends that he was not guilty of first-degree murder because the
evidence did not show him to be one of the shooters responsible for the victims’ deaths. The
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evidence, he says, shows that Tackett was holding a handgun, whereas Copas and Tard were
holding assault rifles. This is significant, according to Tackett, because bullets from the assault
rifles were ultimately found responsible for the two victims’ deaths, and the evidence showed that
the only bullet found at the scene that could have come from a handgun was fired before the
incident in question.
But even assuming that Tackett’s gun misfired, the jury could still have reasonably
concluded that Tackett was guilty of first-degree murder under an aiding-and-abetting theory.
Based on Tackett’s version of what happened, Copas and Tard fired the shots that ultimately killed
the victims. The first part of the aiding-and-abetting analysis, therefore, asks whether Copas and
Tard committed first-degree murder, which is to say whether they committed an intentional killing
with premeditation and deliberation.
a. Intent to kill
Michigan law is clear that the intent element of first-degree murder requires more than
“[m]ere conscious indifference to the likelihood of death.” People v. Milton, 265 N.W.2d 397,
399 (Mich. Ct. App.), judgment amended, 282 N.W.2d 926 (Mich. 1978). “[T]o commit
first-degree murder, a person must act with the purpose of causing death.” Id. In other words, a
“‘very high risk of death’ intent is insufficient for first-degree premeditated murder. The defendant
must have an actual intent to kill.” People v. Dykhouse, 345 N.W.2d 150, 152 (Mich. 1984).
Michigan’s courts have also made clear, however, that the amount of evidence necessary
to infer an intent to kill is not large. “It is well settled that the intent to kill may be inferred from
any facts in evidence. Because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient to establish a defendant’s intent to kill.” People v. Unger,
749 N.W.2d 272, 286 (Mich. Ct. App. 2008) (citations omitted). A defendant’s use of a lethal
weapon, for example, will support an inference of such an intent. People v. Ray, 224 N.W.2d 735,
737 (Mich. Ct. App. 1974).
The case of People v. Brown, No. 305794, 2013 WL 5539284 (Mich. Ct. App. Oct. 8,
2013) (per curiam), encompasses facts that are strikingly similar to those in the present case.
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Brown involved a first-degree murder conviction stemming from the 2004 death of Karibe
Anderson, Jr., who was killed in a drive-by shooting. Id. at *1. Anderson had the bad luck of
staying at a particular house in Flint, Michigan at the time when the defendant wanted to carry out
a drive-by shooting of the house next door because of a dispute that he was having with rival gang
members who were known to meet there. Several of the gunshots entered the house that Anderson
was staying at, and at least one of them killed him while he slept. After Brown was convicted of
first-degree murder, he appealed, raising a sufficiency-of-the-evidence claim.
The Michigan Court of Appeals affirmed. It observed that there was evidence that the
defendant “wanted to shoot up a house on Baltimore Street where members of the rival gang were
known to congregate in retaliation for an earlier incident in which defendant was shot.” Id. at *8.
Most notably, on the issue of intent to kill, the court wrote: “Evidence that defendant fired several
shots into a house at a time when people were likely to be present and fired the shots ‘below the
windows,’ i.e., at a height calculated to strike an occupant, was evidence of an intent to kill.” Id.
Brown strongly supports the conclusion that the shooters possessed an intent to kill in the
present case. In both cases, the defendant or defendants used lethal weapons, firing guns into a
house or trailer from the outside, and in both instances the shooters were seeking to retaliate for
previous incidents. Similarly, the shooting here took place at night, at approximately 11:30 p.m.
That is a time when one would reasonably expect people to be in their dwellings; in other words,
a “time when people were likely to be present.” See id. The defendants in the present case also
fired “below the windows,” this being a height where individuals were likely to be hit, as evidenced
by the fact that Bonar and Feldman actually were hit and killed. See id.
In short, virtually all of the facts that supported an inference of an intent to kill that were
present in Brown are also present in this case. And a number of additional facts buttress the
conclusion that Copas and Tard possessed an intent to kill. To begin with, they fired assault rifles,
which are more powerful than ordinary firearms. They also shot the assault rifles into a trailer, as
opposed to, for example, a larger house with thicker and sturdier walls. And perhaps most
crucially, the evidence showed that at least some of the lights were on in the trailer at the time of
the shooting, which would have indicated to the shooters that people were likely to be inside. From
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all of these facts, the jury could have reasonably concluded that Copas and Tard possessed an
intent to kill.
Tackett’s theory of the case, on the other hand, is that the shooters did not possess an intent
to kill because they merely intended to destroy property in order to avenge Ousley’s damaging of
Copas’s van earlier in the day. He relies heavily on the opinion of the trial-court judge who, in
addressing Tackett’s motion for relief from judgment, stated the judge’s belief that the evidence
showed at most that Tackett (along with his codefendants) was guilty of second-degree murder.
The trial judge expressed the view that the defendants did not intend to murder Ousley or anyone
else, and that they fired into the trailer without thinking about the consequences. But the question
before us is not whether this assessment is correct as an original matter. Rather, it is whether any
rational trier of fact could have agreed with the jury’s conclusion. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). For the reasons stated above, the answer to that question is “yes,”
especially in light of AEDPA’s requirement that, on habeas review, we are required to give an
extra layer of deference to the state court’s decision. See Coleman v. Johnson, 566 U.S. 650, 651
(2012) (per curiam).
b. Premeditation and deliberation
The other two elements required for first-degree murder in Michigan are premeditation and
deliberation. These are distinct elements; the Michigan courts have distinguished them by stating
that “[t]o premeditate is to think about beforehand; to deliberate is to measure and evaluate the
major facets of a choice or problem.” People v. Oros, 917 N.W.2d 559, 565 (Mich. 2018) (citation
and internal quotation marks omitted). Although the two elements are distinct, “a rigid and
mechanical application is often difficult because the same facts may tend to establish each
element.” Id. As with intent to kill, an inference of premeditation and deliberation may be
established from all of the facts of the case. Id.One way in which premeditation and deliberation may be established is through “an
interval of time between the initial homicidal thought and ultimate action, which would allow a
reasonable person time to subject the nature of his or her action to a ‘second look.’” Id. at 566
(citations omitted). The amount of time deemed necessary for a “second look” to take place has
No. 19-1037 Tackett v. Trierweiler Page 11
never been precisely determined, but the Michigan Supreme Court has noted that “premeditation
and deliberation require only a ‘brief moment of thought’ or a ‘matter of seconds.’” Id. (citations
omitted).
In the present case, there was more than enough time for the shooters to take a “second
look.” The time interval during which Tackett, Copas, and Tard traveled to Ousley’s trailer after
getting the guns was significantly longer than the “matter of seconds” required for a “second look”
to take place. Moreover, the record provides evidence that premeditation and deliberation actually
took place during that time. The group retrieved the guns and drove from one place to another for
the specific purpose of shooting up Ousley’s trailer. And once at the trailer park, they waited for
a patrol car to leave the area immediately prior to the shooting. The fact that the defendants all
put on gloves or socks in order to hide their fingerprints further supports an inference that the
defendants were engaging in forethought regarding what they were about to do. In short, there is
ample evidence in the record for the jury to have reasonably concluded that the elements of
premeditation and deliberation were established.
2. Assisting in the commission of the crime
Two remaining elements must be shown to establish Tackett’s aiding-and-abetting liability
for first-degree murder. They are: (1) that Tackett “performed acts or gave encouragement that
assisted the commission of the crime,” and (2) that he “intended the commission of the crime or
had knowledge that the principal intended its commission at the time that [he] gave aid and
encouragement.” See People v. Bennett, 802 N.W.2d 627, 633 (Mich. Ct. App. 2010) (citations
and internal quotation marks omitted).
With respect to the “acts or . . . encouragement” element, aiding and abetting “describes
all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds
that might support, encourage, or incite the commission of a crime.” People v. Carines,
597 N.W.2d 130, 135 (Mich. 1999) (citation and internal quotation marks omitted). Tackett took
several actions that meet this standard. He joined Copas and Tard knowing that they had been
involved in the first altercation earlier in the day, and the group collectively armed themselves
with guns, including assault rifles. Tackett also put on gloves and provided gloves or socks to the
No. 19-1037 Tackett v. Trierweiler Page 12
others, presumably to hide their fingerprints. At the very least, he then attempted to shoot a
handgun during the time that Copas and Tard were firing assault rifles into the trailer. And later,
after the shooting, Tackett attempted to hide the assault rifles in his father’s garage. The jury could
have reasonably concluded from all of these actions that Tackett provided assistance to Copas and
Tard that supported their commission of the crime.
3. Intent or knowledge of the commission of the crime
As for the “intent” element, an “aider and abettor’s state of mind may be inferred from all
the facts and circumstances.” Id. (citation and internal quotation marks omitted). An analysis
regarding Tackett’s state of mind closely mirrors the intent inquiry for Copas and Tard. In other
words, at the time that Tackett assisted Copas and Tard, he was witnessing all of the same facts
and circumstances that they were. He knew, for example, that Copas and Tard were about to fire
assault rifles into a trailer known by all of the members of the group to serve as a habitation.
Tackett would also have known that the events were taking place at a time when people were likely
to be inside, and he would have known that Ousley had been present there earlier in the day. And
finally, Tackett would have seen that at least some of the lights were on in the trailer at the time of
the shooting. The jury could have reasonably concluded, based on all of these facts, that Tackett
either intended the commission of first-degree murder or knew that Copas and Tard intended to
commit first-degree murder. Because the jury could have reasonably determined that all of the
elements of first-degree murder were satisfied under an aiding-and-abetting theory, we reject
Tackett’s sufficiency-of-the-evidence claim.
C. Unanimity instruction
Tackett’s second claim challenges the general instruction given to the jury by the state trial
court that the jury’s verdict had to be unanimous. Tackett argues that this instruction was
insufficient. Specifically, he observes that he could have been convicted under two distinct legal
theories: (1) as a principal, or (2) as an aider and abettor. He contends that the trial court erred by
failing to give the jury a special unanimity instruction to the effect that the jurors had to
unanimously agree as to which of these two theories was serving as the basis for their verdict.
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We reject this argument for two separate reasons. First, as the State argues, and as the
Michigan Court of Appeals found, Tackett waived this claim by affirmatively approving of the
trial court’s jury instructions. Copas, 2008 WL 4149002, at *10. A defendant waives any alleged
errors with respect to jury instructions by acknowledging to the trial court that he has no objections
to the instructions as given. People v. Ortiz, 642 N.W.2d 417, 425 (Mich. Ct. App. 2001). “One
who waives his rights under a rule may not then seek appellate review of a claimed deprivation of
those rights, for his waiver has extinguished any error.” People v. Carter, 612 N.W.2d 144, 149
(Mich. 2000) (citation and internal quotation marks omitted). Tackett does not offer any response
to the State’s waiver argument. Because Tackett affirmatively approved of the jury instructions,
he has waived this claim.
Second, Tackett’s unanimity claim is unpersuasive on the merits. There is no general legal
requirement that jurors must unanimously agree on a theory of guilt. “[I]t is acceptable for a first-
degree murder conviction to be based on two alternative theories even if there is no basis to
conclude which one (if only one) the jury used.” Coe v. Bell, 161 F.3d 320, 348 (6th Cir. 1998)
(citing Schad v. Arizona, 501 U.S. 624, 636–37 (1991)). In our circuit, a “specific unanimity
instruction is required only when one of three situations exists: 1) the nature of the evidence is
exceptionally complex; 2) there is a variance between indictment and proof at trial; or 3) there is
a tangible indication of jury confusion, as when the jury has asked questions of the court.” United
States v. Washington, 127 F.3d 510, 513 (6th Cir. 1997). Nothing in the record suggests that any
of these scenarios apply to the present case.
Nor has Tackett cited any authority suggesting that the state trial court’s jury instructions
ran counter to clearly established federal law. Indeed, he seems to concede in his reply brief that
“a unanimous verdict may not have been required,” although it “should have been requested under
the facts and circumstances of this case.” He is accordingly not entitled to relief on his
jury-instructions claim.
D. Inconsistent verdicts
Tackett’s next claim stems from the disparate results of his case as compared to those of
his codefendants Sykes and Tard. The prosecutions of Sykes and Tard, Tackett says, “arose from
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the same set of facts and under the same legal theory of criminal liability” as did his case. Yet
Tackett was convicted of first-degree murder, whereas Sykes and Tard were convicted of second-
degree murder. Tackett argues that this outcome violated his rights under the Due Process Clause
and the Equal Protection Clause. He draws on the trial-court judge’s opinion that the disparity
between the results reached among the various defendants constitutes an injustice.
The problem for Tackett is that there is no authority to support the legal proposition that
underlies his claim. Rather, the Supreme Court has held that inconsistent verdicts do not present
a constitutional problem. See, e.g., Harris v. Rivera, 454 U.S. 339, 345 (1981) (“Inconsistency in
a verdict is not a sufficient reason for setting it aside.”). Indeed, the Court has gone so far as to
hold that a defendant accused of aiding and abetting in the commission of an offense may be
convicted even if the named principal has been acquitted of the same offense. Standefer v. United
States, 447 U.S. 10, 11, 25–26 (1980). If Tackett could have been convicted of first-degree murder
under an aiding-and-abetting theory even if Sykes and Tard had been acquitted altogether, surely
the same result is legally unassailable where, as here, Sykes and Tard were convicted of second-
degree murder.
The cases that Tackett cites fall well short of establishing that he has a due-process or
equal-protection right to a verdict that is consistent with those of his codefendants. First, Tackett
cites Griffith v. Kentucky, 479 U.S. 314 (1987), for its language that there is a “principle of treating
similarly situated defendants the same.” Id. at 323. Griffith, however, dealt with a totally different
legal issue from the one presently before us—namely, the retrospective application of the Supreme
Court’s previous decision in Batson v. Kentucky, 476 U.S. 79 (1986). The Griffith Court held that
“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state
or federal, pending on direct review or not yet final, with no exception for cases in which the new
rule constitutes a ‘clear break’ with the past.” 479 U.S. at 328. Its language regarding “similarly
situated defendants” was used to support the Court’s rejection of a “clear break” exception to the
principles governing the retroactivity of new rules of criminal procedure. See id. at 327–28.
Griffith simply had nothing to do with the equal treatment of defendants in terms of what verdicts
can permissibly be reached in evaluating a given factual situation.
No. 19-1037 Tackett v. Trierweiler Page 15
Tackett next cites the Ninth Circuit’s decision in Walter v. United States, 969 F.2d 814 (9th
Cir. 1992). The Walter court quoted the same language referenced above from Griffith, adding
that the principle described in Griffith “requir[es] particularly strong adherence when the two cases
are not merely factually alike or even factually identical, but arise from the same facts.” Id. at 817(emphasis in original). In Walter, however, the relevant disparity was that the court had previously
rejected Walter’s Speedy Trial Act claim but agreed with the same claims of his codefendants
under identical facts. See id. at 815. The Walter court invoked the principle from Griffith to allow
Walter to correct this disparity through a collateral attack. See id. at 816–18. But, as in Griffith,
the case did not involve any inconsistency in jury verdicts. Even leaving aside the fact that Walter
is from another circuit and thus not binding on us, it is of no help to Tackett.
Finally, Tackett cites this court’s unpublished table opinion in Bunker v. Jabe, 995 F.2d
1066, 1993 WL 206533 (6th Cir. 1993). This court had previously determined, in examining the
conviction of Bunker’s codefendant, that the instructions given to the jury in the two defendants’
joint trial “unconstitutionally shifted the burden of proof regarding intent to commit murder.” Id.
at *1. The Bunker court applied the same analysis to the jury instructions with respect to Bunker.
Id. at *1–2. Once again, even leaving aside the fact that Bunker is not a precedential decision, the
case does nothing to establish any right to parity in jury verdicts. The State therefore prevails on
this claim.
E. Ineffective assistance of trial counsel
Tackett’s final two sets of arguments revolve around the performance of both his trial
counsel and his appellate counsel on direct appeal. He contends that, for various reasons, each of
these attorneys’ acts and omissions violated his Sixth Amendment right to the effective assistance
of counsel.
The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), set out a two-prong
test for determining when a counsel’s assistance is so deficient that it requires a conviction to be
set aside:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
No. 19-1037 Tackett v. Trierweiler Page 16
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. “Whether counsel’s performance was ‘deficient’ under the first prong is determined by
reference to ‘an objective standard of reasonableness’—specifically, ‘reasonableness under
prevailing professional norms.’” Hendrix v. Palmer, 893 F.3d 906, 921 (6th Cir. 2018) (quoting
Strickland, 466 U.S. at 688). The second prong of the test requires that the defendant must
affirmatively prove prejudice, meaning that his counsel’s errors “must have ‘actually had an
adverse effect on [his] defense.’” Id. (quoting Strickland, 466 U.S. at 693).
This standard is even more difficult to meet in habeas cases, where the review that applies
to Strickland claims is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
“The question ‘is not whether a federal court believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that determination was unreasonable—a
substantially higher threshold.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). For a state court’s adjudication of a Strickland claim to be “unreasonable” under 28
U.S.C. § 2254(d)(1), it “must have been ‘so lacking in justification’ that it amounts to ‘an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Hendrix, 893 F.3d at 922 (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)).
1. Failure to recall and impeach Ousley
Tackett’s first contention with respect to his trial counsel is that such counsel was
ineffective for failing to recall and impeach Ousley. Ousley had been a witness for the prosecution
on the second day of the trial. “On the morning of the third day of trial, the prosecutor informed
the trial court and the defense attorneys that, after testifying, Ousley was arrested and charged on
an unrelated criminal sexual conduct warrant.” Copas, 2008 WL 4149002, at *3. Tackett alleges
that Ousley “is a child rapist, a thief, and a drug addict,” and that these matters should have been
brought to the attention of the jury.
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Although Tackett did not present this claim on direct appeal, his codefendant Copas made
a similar argument. The Michigan Court of Appeals rejected it with the following explanation:
Defendant Copas has not established any support for his claim that Ousley was
aware of the unrelated warrant before he testified in this case, let alone that there
was any arrangement whereby Ousley would receive leniency in that case in
exchange for his testimony in this case. The mere fact that Ousley’s preliminary
examination may have differed in some respects from his trial testimony does not
support such an inference. Rather, the inconsistencies presented defense counsel
with an opportunity to impeach Ousley, which he did. Defendant has failed to show
that defense counsel’s performance with respect to Ousley fell below an objective
standard of reasonableness.
In addition, the principal evidence implicating defendants Copas and Tackett at trial
came from two eyewitnesses who were in the van with the defendants during the
shooting. Because Ousley did not provide the critical evidence implicating
defendant Copas, there is no reasonable probability that further impeachment of
Ousley would have changed the jury’s verdict.
Id.Tackett has provided no reason for us to conclude that this determination was unreasonable,
or that the Michigan Court of Appeals’s analysis of this claim with respect to him would have been
any different than it was with respect to Copas. He argues that the outcome of the trial might have
been different if the jury had known about Ousley’s charges and other relevant characteristics
when assessing Ousley’s credibility “as to how many gunshots and how many guns he heard during
the assault.” But as the district court points out, Ousley testified that he did not see Tackett during
the incident. Ousley also said that he might have heard two guns firing, based on the speed of the
shots, but that he had difficulty telling for sure and that he did not see the people doing the shooting.
This information was not so damaging to Tackett as to demonstrate that there is a reasonable
probability that further impeachment of Ousley would have changed the jury’s verdict.
In addition, Tackett’s argument falls short on the first prong of Strickland. A trial counsel’s
“tactical decisions are particularly difficult to attack,” meaning that a defendant “attacking his
lawyer’s performance must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” O’Hara v. Wigginton, 24 F.3d 823,
828 (6th Cir. 1994) (quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted).
No. 19-1037 Tackett v. Trierweiler Page 18
Impeachment strategy falls within this category of trial tactics. Dell v. Straub, 194 F. Supp. 2d
629, 651 (E.D. Mich. 2002). Tackett cites no authority regarding what qualifies as a deficient level
of performance in this context. He has thus failed to demonstrate that the decision to forego
recalling and impeaching Ousley was such a serious error as to signify that his “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. For these reasons, we find no merit in Tackett’s “recall” claim.
2. Failure to object to the jury instructions
Tackett next argues that his trial counsel was ineffective for failing to object to the
jury-unanimity instructions, which are discussed in Part II.C. above. He spends only two sentences
on this claim and does no analysis other than to refer back to his earlier substantive discussion of
the jury instructions.
Tackett’s legal claim that the trial court erred by failing to instruct the jurors that they had
to unanimously agree as to which theory of guilt was serving as the basis for their verdict is
meritless. The failure to raise a meritless claim does not constitute ineffective assistance of
counsel. See, e.g., Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008) (“No prejudice flows from
the failure to raise a meritless claim.”). Because the underlying legal claim lacks merit, the failure
of Tackett’s trial counsel to raise that claim does not constitute ineffective assistance of counsel.
3. Failure to move for an adjournment
We now turn to Tackett’s ineffective-assistance-of-counsel claim with regard to his expert
witness. At trial, the defense called Steven Howard as an expert witness in ballistics. Howard
testified that the one bullet found in the trailer that could have been fired from a handgun was
oxidized, meaning that it had to have been fired well before the night in question. On
cross-examination, the prosecution challenged Howard on this claim, asking how he could know
that the bullet was oxidized without a chemical analysis. Howard responded that he was not given
time to conduct such an inquiry. Tackett contends that his trial counsel should have moved for an
adjournment at this point to allow time for testing to take place.
No. 19-1037 Tackett v. Trierweiler Page 19
But as the district court noted, the lack of testing on the bullet did not stop Tackett from
establishing his defense on this point at trial. Howard’s opinion that the bullet was fired during a
previous incident was not stricken. In addition, the prosecution’s expert witness conceded that a
white substance found on the bullet might have been the result of oxidation.
There is also no reason to believe that a motion for an adjournment would have been
granted. The trial judge had warned the parties before trial that he “was not going to have a last
minute adjournment as a result of failed discovery.” A motion for an adjournment must be based
on good cause. Mich. Ct. R. 2.503(B)(1); People v. Jackson, 650 N.W.2d 665, 668 (Mich. 2002)
(per curiam) (citing Mich. Ct. R. 2.503). When such a motion is made on the grounds of
unavailability of evidence, it will be granted “only if the court finds that the evidence is material
and that diligent efforts have been made to produce the witness or evidence.” Mich. Ct.
R. 2.503(C)(2). Whether the trial judge would have found the evidence material is questionable,
and Tackett has provided no information regarding the efforts made to test the bullet. In short,
there is no reason to conclude either that Tackett’s trial counsel was deficient in failing to move
for an adjournment or that Tackett was prejudiced by that failure.
4. Failure to impeach two prosecution witnesses
Tackett’s final argument regarding his trial counsel’s alleged deficiency is that the attorney
was ineffective for choosing not to impeach two of the prosecution’s eyewitnesses—Richard
Steglich and Pete Wisniewski. During a preliminary examination, both witnesses admitted to
using drugs and alcohol at the time of the incident in question. Tackett contends that his counsel’s
failure to question these witnesses at trial about their use of drugs and alcohol and the influence of
those substances on their ability to recall events constitutes ineffective assistance of counsel.
Steglich lived on the same street as Ousley, about four trailers down, and Wisniewski was
staying with Steglich on the day in question. In general terms, Steglich testified that he had
witnessed a brown van initially drive up to Ousley’s trailer and then speed away after the initial
confrontation. He also recounted that the same van had come back late at night, had pulled up in
front of Ousley’s trailer, and that the people in the van started shooting toward the trailer.
No. 19-1037 Tackett v. Trierweiler Page 20
Wisniewski, who was present with Steglich at the time, also provided a similar account of the two
incidents.
The problem with Tackett’s claim is that he does not provide any reason to conclude that
the testimony of these two witnesses was damaging to his case. One of them, Wisniewski, even
admitted at trial that he had been drunk and could not remember much from that day. More
importantly, as Tackett himself points out in his brief, both Steglich and Wisniewski testified that
they had never seen Tackett before, and that neither could identify him as a rider in the brown van.
Tackett needs to show that his counsel’s alleged errors prejudiced him, meaning that they
“actually had an adverse effect on [his] defense,” in order to prevail on this issue. See Hendrix v.
Palmer, 893 F.3d 906, 921 (6th Cir. 2018) (quoting Strickland, 466 U.S. at 693). Even assuming
that his counsel erred by not impeaching Steglich and Wisniewski, Tackett has not shown that he
was prejudiced by this decision. Indeed, he does not even present a theory as to what testimony
from these two witnesses had any meaningful effect on the ultimate verdict. He is therefore not
entitled to habeas relief on this claim.
F. Ineffective assistance of appellate counsel
This leaves us with Tackett’s claims regarding his appellate counsel. He makes two main
assertions to support the conclusion that his appellate counsel was ineffective. First, he argues that
his appellate counsel was ineffective for failing to raise the four ineffective-assistance-of-trial-
counsel claims previously mentioned. But, as discussed in Part II.E. above, all of those claims
lack merit. Because of the well-established principle that “appellate counsel cannot be ineffective
for a failure to raise an issue that lacks merit,” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001), Tackett’s appellate counsel was not ineffective for failure to raise them.
Second, Tackett argues that his appellate counsel was deficient for failure to submit the
transcripts of the “degree hearings” of his codefendants Sykes and Tard for the purposes of making
his sufficiency-of-the-evidence claim. He maintains that his appellate counsel did not request
those transcripts in a timely manner. Tackett also contends that “[t]here was no downside to
arguing that the convictions violated due process and equal protection of the laws, as it appears
No. 19-1037 Tackett v. Trierweiler Page 21
that counsel attempted to frame his sufficiency” claim. The point seems to be that the sufficiency
claim would have been stronger if reinforced by the argument based on due-process and equal-
protection principles regarding the disparity between Tackett’s convictions and those of Sykes and
Tard.
This contention, however, is without merit. The disparity argument would not have helped
Tackett no matter how effectively it was presented. As discussed above, there is simply no
constitutional right (whether grounded in due process or equal protection) for a defendant to
receive a verdict that is consistent with those of his codefendants. Nor has Tackett provided any
reason to conclude that the disparity argument would have bolstered his sufficiency-of-the-
evidence claim, where the relevant question is simply whether there was sufficient evidence to
support his conviction. Again, appellate counsel cannot be ineffective for failing to raise a claim
that lacks merit. We conclude, accordingly, that Tackett has not met the requirements for habeas
relief on his ineffective-assistance-of-appellate-counsel claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.