Jerry Bailey, Jr. v. Willie Smith

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0801n.06
No. 08-2146
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT Jul 24, 2012
LEONARD GREEN, Clerk
JERRY DOWELL BAILEY, JR., )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
WILLIE O. SMITH, Warden, ) OPINION
)
Respondent-Appellee. )
BEFORE: COOK, McKEAGUE, and ROTH*, Circuit Judges.
McKeague, Circuit Judge. Petitioner Jerry Bailey appeals the district court’s denial of his
application for habeas relief. Petitioner argues (1) ineffective assistance of counsel, (2)
unconstitutional evidentiary rulings; and (3) judicial bias. Because Petitioner failed to show that the
last reasoned state court decision was either contrary to or an unreasonable application of clearly
established Supreme Court precedent, we AFFIRM the district court.
I. BACKGROUND
A. Factual Background
On February 26, 2004, police arrested Petitioner near the scene of an armed robbery in
Detroit, Michigan. Petitioner was charged with seven counts stemming from that crime: four counts
*
The Honorable Jane R. Roth, United States Court of Appeals for the Third Circuit, sitting
by designation.
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of armed robbery, one count of first-degree home invasion, one count of possession of a firearm
during the commission of a felony, and one count of felon-in-possession of a firearm. R. 19-3,
6/18/04 Tr., 3. The evidence adduced at Petitioner’s trial was accurately summarized in the
Magistrate’s Report and Recommendation (“R&R”) adopted by the district court. The salient points
of the R&R include:
Robert McGhee stated that in February, 2004, he resided at 11635 Archdale
in the City of Detroit. At about 1:00 p.m., he was in front of his garage, where he
works on cars. With him were Marcus Nixon and a woman he knew as Neicy.
[T]hree armed men came around the corner. One placed a gun to Nixon’s head. The
others took McGhee into the garage and made him lay on the floor while they rifled
his pockets and removed cash from his wallet. Nixon and McGhee had their hands
tied with belts. Nixon was blindfolded. Both were placed in a car in the garage. A
man identified as [Petitioner] placed a gun to his head and demanded his house keys.
The man went to the house after instructing the others to kill McGhee and Nixon if
he was unable to enter the house. Just then, McGhee’s wife then came out to feed
the dog. All three men rushed her. McGhee untied himself and ran from the car to
an oil change shop down the street. He hid there while shop employees summoned
the police. When the police arrived he was reunited with his wife and Nixon, who
was locked in the garage. Two weeks prior to trial, McGhee identified Appellant at
a police lineup. He was unable to describe the pistol or the other two weapons.
[Patricia McGhee offered substantively similar testimony.]
Marcus Nixon stated that on February 26, 2004, he was at the McGhee house.
A young woman arrived. Minutes later, a man with a black gun hit him on the head
and ordered him onto the floor of the garage. His hands were tied behind his back
and he was blindfolded with a rag. $50.00 cash and his wallet, which contained
another $200.00, were taken from him. Two persons helped him into a car. He then
heard someone demand house keys from McGhee. That person threatened to kill
McGhee if McGhee gave him the wrong key. Nixon later escaped the car and called
911 from a telephone in the garage. He tried to leave, but a man exited the house
with a gun and locked him in the garage. Minutes later, McGhee and the police
arrived and he was released from the garage. He later attended a lineup [six months
after the crime] which included [Petitioner]. Nixon selected another person.
Detroit Police Officer Samuel Dunigan [was] the officer in charge of the case.
He stated that at about 6:35 p.m. he interviewed [Petitioner] in the presence of
Officer Williams. After he advised [Petitioner] of his constitutional rights,
[Petitioner] replied “I refuse to make a statement.” He stated that he then “discussed”
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the crime and that [Petitioner] admitted to having a gun, placing a gun to Mrs.
McGhee’s head, entering the house and having two accomplices. Dunigan further
testified that he asked to reduce the discussion to writing, but that [Petitioner]
refused. Dunigan later became aware of a wallet placed in evidence by Officer
Hamilton. He stated that it was destroyed on March 18, 2004. Dunigan oversaw the
police lineup attended by Mr. McGhee, Mrs. McGhee, and Mr. Nixon. Both
McGhees positively identified [Petitioner]. Nixon did not. Dunigan was aware that
the fourth complainant, Kathleen Horton, was involved. He stated that he had made
three or four unsuccessful attempts to contact her. The Investigator’s Report
indicated that $305.00 was taken from [Petitioner] following his arrest . . . .
[Petitioner’s] motion for directed verdict was granted as to complainant
Kathleen Horton only. His motion to dismiss based upon the destruction of the
wallet was denied.
[Petitioner] then testified that following a 15 year prison term for criminal
sexual conduct . . . . he moved in with his cousin, where he meet Leslie Horton, a/k/a
Kathleen Horton, a/k/a Neicy, who is his girlfriend Cynthia’s best friend. He was
working at a temporary staffing company and needed a car to get to the various job
sites . . . . On February 7, 2004, he went with Horton to purchase a car. Two weeks
later, the car had mechanical problems. Horton told him that she had a friend named
McGhee who works on cars. On February 26, 2004, he awoke and saw that his car
was gone. He paged Horton, who told him that she was going to get his car fixed.
He asked her to pick him up so that he could go to work to get his paycheck. He,
Cynthia, his cousin Kevin Wiley, . . . Horton and her cousin Deek drove to the [] oil
change shop on Southfield and Plymouth. Horton identified McGhee’s nearby house
and [announced] that she was going there. [Petitioner] went to the store to purchase
lottery tickets. When he returned, he saw Deek pushing a truck in the service drive,
[and] Horton and his cousin Kevin driving away in his car. [Petitioner] and Cynthia
walked toward McGhee’s house, where he saw his other cousin Kevin running from
[the property] with a gun in his hand and a mask over his face. He thought that his
cousin had been involved in a drug transaction which had gone awry. He took the
gun from Kevin, who ran away. When plain clothes officers in an unmarked car
arrived, he thought they were the drug dealers and that they were after him so he ran.
When uniformed officers in marked cars joined the chase, he became scared and ran.
He surrendered after discarding the gun.
R. 21, Report and Recommendation, 5-8 (quoting Def.-Appellant’s Br. in People v. Bailey, No.
258705 (Mich. Ct. App.), at 1-5.) (internal alterations omitted). Petitioner was the sole witness for
the defense.
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The prosecutor began his closing argument by telling the jury: “what I want to lay out for you
is why this case . . . has been proven to you beyond a reasonable doubt, as to every charge, and why
you should return a verdict of guilty.” R. 19-8 at 87. The prosecutor continued: “In other words, the
defendant doesn’t get to get up here and put in some cockamamie story, and you say, ‘Well, he said
it, it must be true. And it’s the defendant, we can’t really question it’ . . . . You have to judge the
credibility of the witnesses.” Id. The prosecutor noted that the defendant offered a “totally
contrasting version” of events and repeatedly urged the jury to consider, “Which one is true? Which
does your common sense tell[] you is true? Which one has other corroboration that tells you if it’s
true? Which one sounds like a fantasy plot from NYPD Blue?” Id. at 90. The prosecutor continued
in this vein for the remainder of his closing argument as he guided the jury through each witness and
piece of evidence. Ultimately, the prosecutor urged the jury to use their common sense, “judge the
credibility” of the evidence, and reach a guilty verdict. Id. at 91-118.
After the judge sent the jury to deliberate, the jury sent the court a note with three questions.
First, the jury wanted to know: “Why six months before a line-up?” R. 19-9 at 73. Second, the jury
asked: “Were guys in the line-up asked to speak so complainants could hear their voices?” Id.
Finally, the jury asked: “Where [sic] any fingerprints taken by the technicians?” Id. In response –
outside the presence of the jury – the judge remarked: “I mean, it really burns me that we hear this
kind of evidence, and people send out stupid questions after I told them, you are not detectives. I’m
going to tell them that again.” Id. at 74. The judge then brought the jury back into the courtroom
and responded to their questions as follows:
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Now, I have to explain to you very carefully, and pick my words very carefully,
because I don’t want to offend anyone. But do you remember when I told you when
you went in there that you are not to be detectives, or defense attorneys, or
prosecutors? You take the evidence that you heard in the courtroom. I can’t tell you
what the evidence is. You heard the evidence. The only questions in this case [are],
were those two people robbed, three people robbed? Was that house broken into, and
did this man do it. That’s all we’re asking you to do. Forget about all of this, you
heard the case. I don’t decide the facts. You heard the facts. You decide the facts.
If I were to sit here and tell you what the facts were, the Court would be deciding the
evidence. And I can’t do that. You do that. Okay? Thank you.
Id. at 74-75. Sixteen minutes later, the jury returned its verdict. Bailey was convicted of three
counts of armed robbery, one count of first-degree home invasion, one count of possession of a
firearm during the commission of a felony, and one count of felon-in-possession of a firearm. The
judge thanked the jury, and then remarked:
Now, you and I all heard this case at the same time. So, I heard the same evidence
that you heard. There was enough evidence to convict 10 people. There was no
question about it. So, you are correct.
Now, one thing you have to be very careful of in all trials is that the judge can’t cross
over the line, and seem to be telling the jury how to decide the case. A judge can’t
do that. The facts are up to the jury. . . . But anyway, we appreciate the time. And I
think what you have done is to help us to take a very dangerous person off the street.
So, you can feel good about that.
Id. at 79-80.
The judge sentenced Petitioner as a third habitual offender. Consequently, Petitioner
received 427 months to 60 years for the armed robberies, 13 to 20 years for the home invasion, and
two years for possessing a firearm in the commission of a felony, all to be served consecutively. R.
19-10, 9/29/04 Transcript, p. 6-7. He also received 40 to 60 months for the felon-in-possession of
a firearm charge to be served concurrently with his armed robbery sentences. Id. at 7.
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B. Procedural History
The Michigan State Courts
Petitioner appealed his convictions to the Michigan Court of Appeals in a brief submitted by
Petitioner’s counsel, R. 19-11 at 48-70, and also in a separate pro se brief, R. 19-11 at 7-29.
Petitioner argued:
(1) he was denied a fair trial and the right to present a defense by the police
department’s destruction of the recovered wallet;
(2) he was denied a fair trial and the right to present a defense by the prosecution’s
failure to disclose that fingerprints had not been identified at the scene;
(3) insufficiency of the evidence regarding one of his three robbery convictions;
(4) the denial of a fair trial due to (a) the judge’s failure to deliver an adverse
inference instruction regarding Horton, and (b) judicial bias
(5) ineffective assistance of counsel based on counsel’s failure to (a) request an
adverse inference instruction regarding the wallet, (b) request an adverse inference
instruction regarding the prosecution’s failure to produce Horton, (c) subpoena key
witnesses; (d) obtain proper trial clothing for Petitioner; and (e) object to improper
prejudicial comments by the prosecution.
See Petitioner-Appellant Br. at 14-15; R. 19-11 at 50; id. at 8-9. Petitioner requested a new trial,
resentencing, or in the alternative, an evidentiary hearing. Id. at 17, 20, 61, 64-65.
The Michigan Court of Appeals affirmed Petitioner’s conviction. People v. Bailey, No.
258705, 2006 WL 954189 (Mich. Ct. App. Apr. 13, 2006). The Michigan Supreme Court denied
Petitioner’s application for leave to appeal because it was “not persuaded that the questions
presented should be reviewed by [the] Court.” People v. Bailey, 476 Mich. 866, 720 N.W. 2d 308(2006).
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The District Court
Petitioner next filed for a writ of habeas corpus in the Eastern District of Michigan. He
raised the following issues: (1) the denial of a fair trial and the right to present a defense by the loss
of potentially exculpatory evidence, namely the recovered wallet; (2) the denial of a fair trial and the
right to present a defense by the prosecution’s failure to disclose exculpatory fingerprint evidence,
(3) ineffective assistance of counsel, (4) deprivation of his Sixth Amendment confrontation rights
when the prosecution failed to exercise due diligence in producing Kathleen Horton at trial, (5) the
denial of a fair trial due to judicial bias, and (6) he was improperly sentenced as a third habitual
offender under Michigan law. R. 7, Amended Petition for Writ of Habeas Corpus.
In response, the State noted that Petitioner’s first claim regarding the wallet was unexhausted
insofar as Petitioner argued, for the first time, that the trial judge erred by failing to give a sua sponte
adverse inference instruction regarding the destroyed wallet. R. 12 at 10-12. Additionally, the State
argued that Petitioner failed to exhaust his claim that the trial judge erred in sentencing Petitioner
as a third habitual offender. Id. at 10-11. Finally, the State argued that the district court should
reject Petitioner’s remaining claims on the merits. Id. at 13-21.
The magistrate’s R&R suggested denying Petitioner’s habeas petition on the merits. See R.
21, Magistrate’s R&R. Petitioner filed an objection to the R&R, R. 23, and filed affidavits from his
girlfriend (Cynthia Hub) and his mother (Gloria Bailey). R. 24, Affidavit of Cynthia Hub and Gloria
Bailey. The district court adopted the R&R and denied Petitioner the writ. R. 25, Order.
Petitioner sought a certificate of appealability on six claims: (1) the destruction of potentially
useful evidence in violation of Arizona v. Youngblood, 488 U.S. 51 (1988); (2) the prosecution’s
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failure to disclose exculpatory evidence in violation of Kyles v. Whitley, 514 U.S. 419 (1995); (3)
trial counsel’s ineffective assistance in violation of Strickland v. Washington, 466 U.S. 668 (1984);
(4) the prosecution’s failure to produce a res gestae witness at trial; (5) judicial bias and improper
response to jury questions; and (6) improper sentencing under Michigan’s third habitual offender
statute. The district court twice denied Petitioner a certificate of appealability. R. 31, First Order
Denying Certificate of Appealability; R. 35, Second Order Denying Certificate of Appealability.
This Court granted Petitioner a certificate of appealability on June 4, 2010.
On appeal, Petitioner contends the record supports habeas corpus relief on four grounds: (1)
ineffective assistance of counsel; (2) the destruction of the wallet in violation of his due process
rights; (3) the prosecution’s failure to disclosure fingerprint evidence; and (4) judicial bias.
II. ANALYSIS
Standard of Review
In a habeas case, this Court reviews a district court’s legal conclusions de novo and its factual
findings for clear error. Carter v. Mitchell, 443 F.3d 517, 524 (6th Cir. 2006). Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may only grant a writ of
habeas corpus if the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; 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 state court renders an adjudication “contrary to” clearly established federal
law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
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of law” or “decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court
unreasonably applies clearly established federal law when it “identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. at 413. “Factual findings made by the state court, or by state appellate
courts based upon the trial record, are presumed to be correct but may be rebutted by clear and
convincing evidence.” Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005); 28 U.S.C. § 2254(e)(1).
1. Petitioner’s Request for an Evidentiary Hearing
Petitioner argues that he is entitled to an evidentiary hearing. Petitioner-Appellant Br. at 28.
As Respondent notes, “Petitioner did not follow the State law procedure by moving for an
evidentiary hearing in the trial court before his direct appeal or by seeking an order of remand from
the Michigan Court of Appeals [for the purpose] of an evidentiary hearing on direct appeal.” Def.-
Appellee Br. at 30. Under AEDPA, federal courts are generally prohibited “from granting
evidentiary hearings when applicants have failed to develop the factual bases for their claims in state
courts.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing 28 U.S.C. § 2254(e)(2)). Because
Petitioner failed to properly seek a remand in the Michigan Court of Appeals, he is not entitled to
an evidentiary hearing in federal court unless he can meet the stringent dictates of § 2254(e)(2).
Toward that end, Petitioner would only qualify for an evidentiary hearing if he demonstrates “a
factual predicate that could not have been previously discovered through the exercise of due
diligence,” § 2254(e)(2)(A)(ii), and proves that “the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but for constitutional error, no reasonable
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factfinder would have found the applicant guilty of the underlying offense.” § 2254(e)(2)(B).
Diligence for the purpose of § 2254(e)(2) depends upon “whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and pursue claims in state
court.” Williams, 529 U.S. at 435.
Because Petitioner failed to satisfy the diligence requirements of § 2254(e)(2), he is not
entitled to an evidentiary hearing. Even if Petitioner had earned an evidentiary hearing, however,
it would ultimately fail to assist Petitioner because our “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011).
2. Petitioner’s Ineffective Assistance of Counsel Claims
Petitioner asserts ineffective assistance of counsel on two grounds. First, he claims that “trial
counsel rendered ineffective assistance when he failed to call at least two available witnesses—
Cynthia Hub and Gloria Bailey—to corroborate [Petitioner’s] trial testimony.” Petitioner-Appellant
Br. at 28-29. Second, he argues that “defense counsel also failed to object to prosecutorial
misconduct and request ‘adverse inference’ instructions to which [Petitioner] was entitled under
Michigan law.” Id.Strickland’s two-pronged test provides the clearly established federal law for evaluating
ineffective assistance of counsel claims. 466 U.S. at 668. To establish ineffective assistance of
counsel, a petitioner must (1) demonstrate that his attorney’s performance was deficient and (2)
show that he was prejudiced by his counsel’s deficient performance. Id. at 687-88. Although
surmounting “Strickland’s high bar is never an easy task,” establishing that “a state court’s
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application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington
v. Richter, 131 S. Ct. 770, 788 (2011) (explaining that our review is “doubly” deferential when we
review Strickland claims under AEDPA). Further, our review under § 2254(d) is limited to the
record that was before the state court that adjudicated the claim on the merits. Pinholster, 131 S.Ct.
at 1398.
The Michigan Court of Appeals rejected all of Petitioner’s claims of ineffective assistance
of counsel. Based on the record before it, the Michigan Court of Appeals properly denied
Petitioner’s ineffective assistance of counsel claims. As Strickland commands, “a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Because “[t]here are countless ways to provide effective
assistance in any given case,” id., Strickland places the burden on the Petitioner to prove otherwise,
and the Michigan Court of Appeals reasonably concluded that Petitioner had not met his burden on
any of his ineffective assistance claims.
First, the Michigan Court of Appeals reasonably applied Strickland in finding that the
defense’s decision not to call additional witnesses was not deficient. The court also noted that “[t]he
record does not support defendant’s claim that defense counsel failed to file or make appropriate
motions.” People v. Bailey, 2006 WL 954189 (Mich. App. Apr. 13, 2006), *4. Accordingly, the
court found that Petitioner “has not overcome the presumption that defense counsel declined to call
additional witness[es] as a matter of trial strategy.” Id. Indeed, as the magistrate found in the R&R
adopted by the district court, Petitioner failed to provide “any indication, much less evidence, with
respect to the purported testimony of these witnesses” before the state court. R. 21 at 32. Although
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Petitioner ultimately filed affidavits from his mother and his girlfriend with the district court, our
review is limited to the record that was before the state court, Pinholster, 131 S.Ct. at 1398, and
nothing on that record overcomes the presumption that defense counsel made a strategic choice in
deciding not to call corroborating witnesses. Moreover, while Petitioner contends that the
prosecutor’s arguments regarding the absence of corroborating witnesses establishes this record,
Petitioner-Appellant Br. at 36, an opponent’s zealous advocacy does not amount to a Strickland
violation. At best, Petitioner’s argument establishes that counsel made a poor strategic decision, but
Strickland does not indulge hindsight-based reasoning. Strickland, 466 U.S. at 680. Further,
Petitioner’s citations to cases where counsel was ineffective for failing to call corroborating
witnesses are unpersuasive because, in those cases, the record overcame the presumption that
defense counsel was acting strategically. See Stewart v. Wolfenbarger, 468 F.3d 338, 375-78 (6th
Cir. 2006) (finding prejudice prong satisfied where attorney intended to call alibi witnesses but failed
to timely file notice, and trial judge subsequently refused to allow alibi testimony because of
attorney’s dilatory representation); Clinkscale v. Carter, 375 F.3d 430, (6th Cir. 2004) (same).
Second, the Michigan Court of Appeals properly applied Strickland with respect to
Petitioner’s claims that defense counsel was ineffective for failing to object to prosecutorial
misconduct. On direct appeal, Petitioner argued that defense counsel should have objected to the
prosecutor’s comment on its failure to call corroborating witnesses. The Michigan Court of Appeals,
citing People v. Fields, 450 Mich. 94, 112-115, 538 NW.2d 356 (1995), held that it was proper for
the prosecutor to remark on the credibility of the defense’s trial theory. Bailey, 2006 WL 954189at *4. After finding no prosecutorial misconduct on the record, the court concluded that “defense
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counsel was not ineffective for failing to object to the prosecutor’s remarks.” Id. Because neither
logic nor precedent indicate that objecting without cause amounts to effective advocacy, the
Michigan Court of Appeals properly determined that Petitioner failed to demonstrate a Strickland
violation. See Pinholster, 131 S.Ct. at 1426 (“The benchmark for judging any claim of
ineffectiveness under Strickland must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.”) (citing Strickland, 466 U.S. at 686) (internal citations and alterations omitted). Although
Petitioner cites to additional instances of alleged prosecutorial misconduct in his brief to this Court,
Petitioner-Appellant Br. at 40-44, these claims were not presented in State court. As such, they are
not properly exhausted and this court may not consider them. See 28 U.S.C. § 2254 (b); Wagner v.
Smith, 581 F.3d 410, 414-415 (6th Cir. 2009).
Third, the Michigan Court of Appeals reasonably applied Strickland to Petitioner’s claim that
defense counsel was ineffective for failing to request adverse inference instructions based on police
destruction of evidence and the absence of an endorsed res gestae witness. The Michigan Court of
Appeals first determined that an adverse inference instruction was not appropriate for the wallet
because Petitioner failed to demonstrate bad faith, thereby rendering an adverse inference instruction
inapposite. Bailey, 2006 WL 954189 at *1. This analysis correctly applied Strickland because, as
discussed above, Strickland does not require counsel to make meritless requests. Pinholster, 131
S.Ct. at 1426. Next, the Michigan Court of Appeals articulated multiple reasons in support of
defense counsel’s failure to request an adverse inference instruction regarding Horton’s failure to
appear:
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First, considering that defendant was charged with an additional count of armed
robbery involving Horton, and that defense counsel was successful in having that
charge dismissed in its entirety when Horton could not be produced, it is not apparent
that defense counsel was ineffective for failing to further pursue the issue of Horton’s
absence by requesting an adverse witness instruction. Second, without any basis in
the record for concluding that there was a lack of due diligence in attempting to
secure Horton’s presence, defendant cannot demonstrate that an adverse witness
instruction would have been warranted had it been requested. Counsel is not required
to make futile requests or objections. Third, Horton’s failure to testify was consistent
with defendant’s assertion that she was involved in the offense, although it did not
establish that defendant was not himself involved. It is unlikely that had the jury
been given the adverse inference instruction, it would have, on the basis of that
instruction, rejected the complainants’ testimony and believed defendant’s.
Bailey, 2006 WL 954189 at *2. The court’s rationale persuasively establishes that it is unlikely that
Petitioner’s trial counsel was ineffective. Even assuming trial counsel failed the first Strickland
prong, however, the court convincingly concludes that Petitioner was not prejudiced because the
outcome would not have been different. In sum, the Michigan Court of Appeals offered a textbook
application of Strickland.
Accordingly, the Michigan Court of Appeals’ denial of Petitioner’s ineffective assistance of
counsel claims was neither contrary to nor an unreasonable application of Strickland. The district
court therefore appropriately denied habeas relief. R. 25, Order Accepting Report and
Recommendation.
3. Petitioner’s Evidentiary Claims
Petitioner raises two evidentiary claims. First, Petitioner argues that the police department’s
destruction of the wallet denied him due process in violation of Arizona v. Youngblood, 488 U.S. 51(1988). Petitioner-Appellant Br. at 46. Second, Petitioner argues that the State failed to produce
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critical evidence regarding the lack of Petitioner’s fingerprints at the crime scene in violation of
Brady v. Maryland, 373 U.S. 83 (1963). Neither claim has merit.
In Youngblood, the Supreme Court articulated the test for analyzing the constitutionality of
police destruction of “evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.” 488 U.S. at 57. This
“potentially useful evidence” only violates due process when a defendant “show[s] bad faith on the
part of the police.” Id. at 58. “The presence or absence of bad faith by the [government] for
purposes of the Due Process Clause must necessarily turn on the [government’s] knowledge of the
exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n.*. Further, “where
the government is negligent, even grossly negligent, in failing to preserve potential exculpatory
evidence, the bad faith requirement is not satisfied.” United States v. Wright, 260 F.3d 568, 570 (6th
Cir. 2001) (internal citations omitted).
In Brady v. Maryland, the Court articulated a three-prong test for determining whether the
State violated the Due Process Clause by failing to disclose exculpatory evidence to the defense. 373
U.S. 83 (1963). To establish a Brady violation: “The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently, and prejudice must have ensued.” Strickler
v. Greene, 527 U.S. 263, 281-82 (1999). The petitioner bears the burden of establishing each of
these three elements. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2001).
The Michigan Court of Appeals analyzed the facts pertaining to the wallet as follows:
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After he was arrested, defendant was transported to the police precinct in a patrol car.
Later, police found one of the victim’s wallet under the seat cushion. The wallet was
placed in evidence but later destroyed. The record contains no evidence concerning
the destruction of the wallet, only that the destruction occurred on March 18, 2004.
There is nothing in the record to indicate that bad faith was involved, and defendant
makes no such claim. Nor does defendant claim that he requested the wallet.
Further, there is no indication that this evidence was exculpatory. Under these
circumstances, the trial court did not abuse its discretion in denying defendant’s
motion to dismiss.
Bailey, 2006 WL 954189 at *1. In performing its analysis, the Michigan Court of Appeals cited to
a Michigan case that quoted Youngblood. Id. Petitioner claims, however, that “[a]fter citing
Youngblood . . . the Michigan Court of Appeals focused on ‘whether the destruction was deliberate,
whether the evidence had previously been requested, and whether the defendant could have put the
evidence to significant use.” Petitioner-Appellant Br. at 48. Petitioner argues that the Michigan
Court of Appeals therefore “applied [an] enhanced standard” and “thus unreasonably applied the law
and unreasonably determined the facts.” Id.The Michigan Court of Appeals reasonably applied Youngblood when it determined that the
police department’s destruction of the wallet did not deny Petitioner due process. Assuming without
deciding that the Michigan Court of Appeals articulated a more stringent standard than Youngblood
requires, Petitioner failed to demonstrate that the court unreasonably applied this standard to the facts
of Petitioner’s case. Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005); 28 U.S.C. § 2254(e)(1).
Based on the court’s factual finding that the government did not have knowledge of the exculpatory
value of the evidence when the wallet was destroyed, it appropriately found no evidence of bad faith
and, accordingly, no due process violation. As the R&R found, the court’s analysis “tracks the
standard established by the Supreme Court in Youngblood.” R. 21 at 15. Further, because Petitioner
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admits that the wallet was only “potentially useful,” Petitioner-Appellant Br. at 49, he fails to rebut
the court’s finding at all. Although Petitioner’s brief to this Court contained arguments that the
police department violated its internal policies when the wallet was destroyed, Petitioner-Appellant
Br. at 28-29, this argument was not presented to the state court and is therefore not properly before
us. In any event, this assertion is not supported by the record.
The Michigan Court of Appeals evaluated Petitioner’s Brady claim regarding fingerprint
evidence as follows:
In support of his claim that there was favorable fingerprint evidence collected at the
crime scene, defendant points only to testimony establishing that evidence
technicians were present at the crime scene, and that the prosecutor remarked in his
opening statement that defendant personally robbed Patricia McGhee but then argued
in summation that defendant gave orders to others instead. But neither of these
matters suggest that the prosecution possessed fingerprint evidence that was
favorable to defendant, i.e., fingerprints belonging to persons defendant alleged had
committed the offenses. In fact, defendant points to no evidence establishing that the
evidence technicians even recovered fingerprints. Thus, the record does not support
defendant’s Brady violation claim.
Bailey, 2006 WL 954189 at *4. Petitioner argues that these facts were adequate to establish a Brady
violation. Petitioner-Appellant Br. at 52. In the alternative, Petitioner argues that “if the Court finds
the record lacking, it should remand the case for an evidentiary hearing to answer the jury’s question:
were ‘any fingerprints taken by the technicians?’ An evidentiary hearing would determine whether
the failure to disclose this evidence violated Brady.” Id.As the R&R points out, it is not entirely clear if Petitioner’s argument is “based on disclosure
at trial of the fact that evidence technicians were at the scene and the absence of any evidence that
his prints were recovered, or on the supposition that the evidence technicians did recover prints that
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belonged to other perpetrators.” R. 21 at 17. To the extent Petitioner is claiming the former, he fails
to establish that the Prosecution suppressed the information in violation of Brady. Although
Petitioner argues that he did not learn that evidence technicians were at the scene until trial,
Petitioner-Appellant Br. at 50, “Brady generally does not apply to a delayed disclosure of
exculpatory information . . . .” United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (internal
quotation omitted). Further, given that Petitioner acknowledges that he was ultimately informed that
evidence technicians were present at the crime scene, “no Brady violation occur[red] unless the
defendant has been prejudiced by the delay in disclosure.” Id. (“Delay violates Brady only where
the delay causes prejudice.”). As Defendant-Appellee argues, “defense counsel argued to the jury
that fingerprints were taken at the scene yet there was no evidence that Petitioner’s fingerprints were
recovered. Thus, Petitioner was able to make use of the information disclosed by [the government]
and [Petitioner] was not prejudiced by the delayed disclosure.” Defendant-Appellee Br. at 53.
To the extent that Petitioner is speculating that fingerprints of other perpetrators may have
been recovered, however, there is nothing in the record to support his assertion. Because Petitioner
failed to develop the factual basis of this claim in State court proceedings, he is subject to 28 U.S.C.
§ 2254(e)(2)’s stringent statutory requirements. As discussed above, there is no evidence on the
record that Petitioner diligently sought fingerprint evidence, § 2254(e)(2)(A)(ii), nor does Petitioner
demonstrate that “the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” §2254(e)(2)(B). Accordingly, Petitioner’s request for
an evidentiary hearing is denied.
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Bailey v. Smith
4. Petitioner’s Allegations of Judicial Bias
Petitioner claims that the trial judge exhibited bias “by instructing the jury to disregard its
reasonable doubts” in denial of his constitutional right to due process. Petitioner-Appellant Br. at
52. This claim is unavailing.
Supreme Court precedent establishes that the Due Process Clause requires a fair trial in a fair
tribunal. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). In Liteky v. United States, the Supreme
Court held that “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” 510 U.S. 540, 555 (1994). To show constitutionally improper prejudice, a judge’s
comments must “display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. Allegations of judicial bias on the grounds of “poor decisionmaking” that does not
infect the trial process do not warrant habeas relief. Getsy v. Mitchell, 495 F.3d 295, 312-13 (6th
Cir. 2007) (en banc).
Petitioner claims that the trial judge “in essence” told the jury to disregard their reasonable
doubts in response to jury questions. Petitioner-Appellant Br. at 52. Additionally, Petitioner
complains that the Judge congratulated the jury on their work once they returned a verdict. Id. The
Michigan Court of Appeals concluded that “[t]he trial court’s comments to the jury were facially
neutral; they do not reflect partiality and were not calculated to unduly influence the jury.” Bailey,
2006 WL 954189 * 5. Additionally, the court noted that “[t]he additional remarks by the trial court
of which defendant complains were made either outside the presence of the jury, or after the jury
announced its verdict and, therefore, could not have influenced the jury’s adverse verdict against
defendant.” Id.- 19 -
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The Michigan Court of Appeals reasonably applied Supreme Court precedent and found no
judicial misconduct. Although the trial court judge expressed exasperation with the jury, the record
indicates that he did so outside of the jury’s presence. R. 19-8 at 163-164. Further, contrary to
Petitioner’s assertion the judge “in essence” urged the jury to ignore reasonable doubt, the judge
explicitly disclaimed any view on the merits:
Now, I have to explain to you very carefully, and pick my words very carefully,
because I don’t want to offend anyone. But do you remember when I told you when
you went in there that you are not to be detectives, or defense attorneys, or
prosecutors? You take the evidence that you heard in the courtroom. I can’t tell you
what the evidence is. You heard the evidence. The only questions in this case is,
were those two people robbed, three people robbed? Was that house broken into, and
did this man do it. That’s all we’re asking you to do. Forget about all of this, you
heard the case. I don’t decide the facts. You heard the facts. You decide the facts.
If I were to sit here and tell you what the facts were, the Court would be deciding the
evidence. And I can’t do that. You do that. Okay? Thank you.
R. 19-9 at 75. The record establishes that the judge appropriately outlined the jury’s responsibilities.
As the R&R points out, the trial judge’s response to the jury reasonably educated the jury regarding
its role. R. 21 at 29-30. Under any reasonable reading of the record, the trial judge’s comments here
do not amount to a “display [of] deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky, 510 U.S. at 555. With regard to the trial court’s decision to
congratulate the jury, the Michigan Court of Appeals correctly noted that this comment took place
after the jury reached its verdict, Bailey, 2006 WL 954189 *5. Consequently, the Due Process clause
is not implicated and Petitioner’s claims of judicial bias fail.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court and deny the writ.
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