ELLEN S. CARMODY, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Stanley L. White is presently incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility in Manistee, Michigan. Petitioner is serving concurrent sentences of 12 to 30 years on each of two counts of armed robbery, MICH. COMP. LAWS § 750.529, consecutive to a sentence of two years on one count of felony firearm MICH. COMP. LAWS § 750.227b(1), imposed by the Berrien County Circuit Court on April 30, 2012, after a jury convicted Petitioner of those offenses.
(Pet., ECF No.1, PageID.8-13.) Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied because of procedural default and lack of merit. Upon review and applying the AEDPA standards, I find that Petitioner's habeas issues lack merit. Accordingly, I recommend that the petition be denied.
On the morning of July 19, 2011, three men burst into Napier Gold and Silver on 1261 Napier Avenue in Benton Township, Berrien County, Michigan. (Trial Tr. I, ECF No. 8-2, PageID.304-308.)
The three men exited the store and hopped into a waiting Lincoln Navigator driven by a fourth man. (Id., PageID. 368.) The Wagners retrieved their own guns and followed after the robbers; Mr. Wagner fired three shots at the vehicle as it left the parking lot. (Id., PageID.330-331, 365.) He missed. (Id., PageID.339.)
Blake Florin was in his vehicle, waiting at the light near the Wagners' shop when he heard three shots and then saw the Lincoln Navigator tear through the intersection. (Id., PageID.411-412.) He saw Mr. Wagner with a gun looking around frantically. (Id., PageID.413.) Mr. Florin figured he should follow the Navigator. (Id.) He lost them on Interstate 94. (Id., PageID.415.) He estimates they were driving 100 miles per hour or faster. (Id.) The information Mr. Florin provided assisted law enforcement in locating and stopping the Lincoln Navigator on the highway.
When the police stopped the Navigator, it was occupied by Petitioner, Michael Barner, and Quentin Willford. Mr. Willford provided testimony that corroborated the Wagners' description of the events. Mr. Willford was the driver. (Trial Tr. III, ECF No. 8-4, PageID.672.) He remained in the car while Petitioner, Michael Barner, and "Old School" robbed the shop. (Id., PageID.666-674.) The four conspirators went from the robbery site to the McDonald's in Bridgman, Michigan. (Id., PageID.675.) There, they met up with Awal and Twan in another vehicle. (Id., PageID.676-678.) They transferred the stolen goods to the other vehicle. (Id.) "Old School," Awal and Twan departed in that vehicle. (Id.) Petitioner, Barner, and Willford left in the Navigator. They were apprehended moments later.
Petitioner testified as well. He told the jury that he had entered the shop to pawn a gold ring. (Id., PageID.711-712.) He entered alone, but Barner and "Old School" must have followed him in, because Barner pulled his gun on Mr. Wagner and "Old School" threatened Mrs. Wagner with his gun. (Id., PageID.712-714.) Petitioner reported that he tried to leave, but Barner pointed the weapon at Petitioner; so, Petitioner came back and emptied the shop cases into a black bag. (Id., PageID.714-715.) Petitioner claimed that "Old School" bound Mr. and Mrs. Wagner with the zip ties. (Id., PageID.716-717.) Petitioner continued to empty the cases until Barner ordered everyone back to the vehicle. (Id., PageID.718.) Petitioner disclaimed any knowledge of the other vehicle. (Id., PageId.720.) As far as he knew, "Old School" simply walked off with the proceeds of the robbery when they arrived at McDonald's. (Id., PageID.721.) Petitioner's testimony was not consistent with the version of events he provided during recorded interviews with police. (Id., PageID.727-769.) In the recorded interviews, which were played for the jury, he acknowledged to detectives that he was in the store and had cleaned out the cases into a bag. He never mentioned anything about doing so under duress.
The jury deliberated for about an hour before finding Petitioner guilty of all charges.
With the assistance of counsel, Petitioner directly appealed his convictions to the Michigan Court of Appeals, raising one issue: he challenged the sufficiency of the evidence with regard to the felony firearm charge. By unpublished opinion issued August 8, 2013, the court of appeals affirmed the trial court. (Mich. Ct. App. Op., ECF No. 8-6, PageID.860-862.) Petitioner applied for leave to appeal to the Michigan Supreme Court. That court denied leave by order entered December 23, 2013. (Mich. Ord., ECF No. 8-7, PageID.912.)
Petitioner then filed a habeas petition in this Court, White v. McKee, No. 1:14-cv-921 (W.D. Mich.), raising the sufficiency issue. That petition was dismissed without prejudice to permit Petitioner to raise three new issues in the state courts on post-conviction review. Petitioner proceeded to file a motion for relief from judgment in the Berrien County Circuit Court raising the three issues he has raised in his present habeas petition. (Mot. and Supporting Memo., ECF No. 8-8, PageID.955-990.) The circuit court denied relief by order entered October 13, 2014. (Berrien Cnty. Cir. Ct. Ord., ECF No. 8-9, PageID.991-996.) The Michigan Court of Appeals and the Michigan Supreme Court refused to grant leave to appeal the circuit court's decision by orders entered May 20, 2015, and May 2, 2016, respectively. (Mich. Ct. App. Ord., ECF No. 8-10, PageID.997; Mich. Ord., ECF No. 8-11, PageID.1039.) Petitioner then returned to this Court.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ____, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S. Ct. at 44).
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to `show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1705 (2014) (internal quotations omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Respondent argues that review of habeas issues II and III is barred by Petitioner's procedural default. "If a petitioner does not satisfy the procedural requirements for bringing an error to the state court's attention — whether in trial, appellate, or habeas proceedings, as state law may require — procedural default will bar federal review." Magwood v. Patterson, 561 U.S. 320, 340 (2010). If a petitioner procedurally defaulted his federal claim in state court, the petitioner must demonstrate either (1) cause for his failure to comply with the state procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, or (2) that a lack of federal habeas review of the claim will result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Murray v. Carrier, 477 U.S. 478, 495 (1986); Hicks v. Straub, 377 F.3d 538, 551-52 (6th Cir. 2004). In this instance, Petitioner claims that the cause for his default was the ineffective assistance of his appellate counsel (which is also habeas issue I). Because determining whether appellate counsel's assistance was effective requires an analysis of resulting prejudice,
Federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits. See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ("Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law."), and Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997) (deciding against the petitioner on the merits even though the claim was procedurally defaulted)). See also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). Because the Court will be required to consider the merits of the issues anyway, the procedural default issue raises more questions than the case on the merits. Under these circumstances, the Court may assume without deciding that there was no procedural default or that Petitioner could show cause and prejudice for that default. See Hudson, 351 F.3d at 215-16; Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999).
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury . . . and to have the assistance of counsel for his defense." U.S. CONST. amend. VI. Voir dire plays an important role in ensuring the impartiality of the jury selected:
Morgan v. Illinois, 504 U.S. 719, 729-730 (1992) (parallel citations and footnote omitted). "Should counsel perform so deficiently during the jury selection process so as to deny the defendant his Sixth Amendment right to an impartial jury, the defendant may be entitled to relief on the basis of ineffective assistance of counsel." Hanna v. Ishee, 694 F.3d 596, 616 (6th Cir. 2012) (citing Holder v. Palmer, 588 F.3d 328, 338 (6th Cir. 2009)).
Nonetheless, "[n]either due process nor the Sixth Amendment entitles a defendant to ask prospective jurors every question that might prove helpful." Bedford v. Collins, 567 F.3d 225, 232 (6th Cir. 2009) (citing Mu'Min v. Virginia, 500 U.S. 415, 425-26 (1991)). Indeed, the trial court should not permit the inquiry into partiality to devolve into a preview of the case through voir dire. Id. Voir dire is not intended to permit the defendant to map "every alley and side street of each juror's mind, a level of detail that the Constitution does not entitle criminal defendants (or the prosecution) to obtain." Id.
In his second ground for habeas relief, Petitioner claims his counsel refused to permit Petitioner to examine the juror personal history questionnaires and refused to pursue voir dire questions regarding the duress defense. Thus, Petitioner claims that he was denied an impartial jury as required by the Sixth Amendment and that the denial was a result of ineffective assistance of counsel. The Berrien County Circuit Court rejected both claims:
(Berrien Cnty. Cir. Ct. Ord., ECF No. 8-9, PageID.993-995.)
The trial court addressed Petitioner's challenge only with respect to the effectiveness of counsel's assistance, not with respect to the partiality of the jurors that found Petitioner guilty. The trial court's decision to bypass the bias issue is understandable. Petitioner failed to identify anything in the record that might indicate the presence of juror bias or even a suspicion of juror bias. The trial court noted that the jurors had all agreed to apply the law as the court gave it to them. Moreover, each juror swore to render the verdict only on the evidence introduced. (Trial Tr. I, ECF No. 8-2, PageID.264-265.) Petitioner bears the burden to establish the existence of juror bias which caused him to suffer actual prejudice. See Smith v. Phillips, 455 U.S. 209, 215-17 (1982) (petitioner bears the burden to demonstrate that he suffered "actual bias" as a result of juror misconduct); United States v. Corrado, 227 F.3d 528, 536 (6th Cir. 2000); Sheppard v. Bagley, 657 F.3d 338, 348-49 (6th Cir. 2011) (Batchelder, J. concurring). Petitioner offers nothing substantive to call into question the jurors' impartiality. Instead, he focuses on alleged failures in the voir dire process.
First, Petitioner argues the voir dire process was flawed because counsel denied Petitioner the opportunity to review the juror personal history questionnaires. Petitioner claims the Michigan Court Rules entitle him to view the questionnaires. Whether state law affords Petitioner that right is immaterial on habeas review. "[A] federal court may issue the writ to a state prisoner `only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must "state facts that point to a `real possibility of constitutional error.'" Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, Rules Governing Habeas Corpus Cases). The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson, 562 U.S. at 5; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).
There is no federal constitutional requirement that courts use or jurors answer juror questionnaires. "The Constitution, after all, does not dictate a catechism for voir dire[.]" Morgan, 504 U.S. at 729. "The decision to use—or not use—jury questionnaires is another issue committed to the trial court's discretion." Postelle v. Royal, No. CIV-12-1110-F, 2016 WL 4597629 at *16 (W.D. Okla. Sep. 2, 2016). Moreover, there does not appear to be a constitutional entitlement for the criminal defendant to see the questionnaires if the trial court does use them. As the Seventh Circuit Court of Appeals recognized, "[t]hose questionnaires contain prospective jurors' home addresses and other personal information . . . [i]f these completed judicial jury forms were released to defendants generally there would exist the possibility of substantial abuse of the information the forms contain which could have serious consequences for individual jurors and the system." United States v. Davenport, 824 F.2d 1511, 1515 (7th Cir. 1987) (footnote omitted).
Accordingly, Petitioner's constitutional complaint regarding his counsel's refusal to permit Petitioner to examine the juror questionnaires is, as the trial court recognized, nothing more than an ineffective assistance of counsel claim. In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .") (citing Harrington, 562 U.S. at 102).
The trial court expressly relied upon the Strickland standard. Thus, the court applied clearly established federal law in deciding Petitioner's challenge. Moreover, the state court applied the standard reasonably, resolving the matter at the second prong, determining that even if counsel's performance fell short, Petitioner had failed to establish prejudice. "When deciding ineffective-assistance claims, courts need not address both components of the inquiry `if the defendant makes an insufficient showing on one.'" Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 697). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.
The trial court's factual determinations regarding the lack of prejudice are wellsupported on this record, principally because Petitioner fails to identify any hint of juror bias. The trial court conducted a probing voir dire to uncover any potential bias. (Trial Tr. I, ECF No. 8-2, PageID.187-261.) Jurors were excused for cause and on peremptory challenge by the prosecution and defense. The trial court's conclusion that Petitioner had failed to demonstrate prejudice from counsel's refusal to permit Petitioner to examine the juror personal history questionnaires is not unreasonable. Accordingly, Petitioner is not entitled to habeas relief.
Petitioner's contention that counsel was ineffective for failing to question the jurors about the duress defense fares no better. The trial court rejected the claim under both prongs of the Strickland analysis. The trial court concluded first that an attorney's approach to voir dire involved matters of strategy which courts are loathe to second-guess, and second that Petitioner had failed to demonstrate that asking questions about duress during voir dire would have likely changed the result. (Berrien Cnty. Cir. Ct. Ord., ECF No. 8-9, PageID.994-995.)
The trial court's determination with respect to the first prong is consistent with clearly established federal law. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland. 466 U.S. at 689. As noted above, the defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. "Counsel's actions during voir dire are presumed to be matters of trial strategy." Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001); see also Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001) ("An attorney's actions during voir dire are considered to be matters of trial strategy."); Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008) (court found reasonable the state court's conclusion that counsel's failure to pursue a particular inquiry during voir dire was strategic and entitled to deference, even if the strategy was questionable).
It is not difficult to conceive of a strategic reason to exclude inquiries regarding the duress defense during voir dire. To raise the spectre of the duress defense at that stage of the proceeding would effectively compel Petitioner to testify before knowing how the prosecution's case would come in. It is important to keep in mind that neither Mr. nor Mrs. Wagner identified Petitioner as one of the three men in their store. Only Petitioner's "admissions" to the police and the testimony of Quentin Willford placed Petitioner there. It may have been improvident to commit to a duress defense if the Wagners' uncertainty and a change of heart by Willford might have provided a sufficient reasonable doubt as to whether Petitioner was even in the store. That may have also been the reason that Petitioner's counsel deferred his opening arguments until it was time to present Petitioner's proofs: it left all of the options open.
It is also possible that the trial court might not have permitted that sort of detailed preview of the case during voir dire. Bedford, 567 F.3d at 232. The Sixth Circuit has affirmed a trial court's refusal to delve so deeply into the specifics of the case by posing voir dire questions regarding the defense of duress. United States v. Hernandez, 232 F. App'x 561, 564-65 (6th Cir. 2007). The trial court in Hernandez concluded the jurors' commitment to follow the court's instructions regarding the law was sufficient with regard to the duress defense. Id. Petitioner's counsel might have reasonably concluded likewise. In any event, the trial court's conclusion that foregoing voir dire questions regarding the duress defense was reasonable trial strategy is not unreasonable on this record.
The trial court's determination regarding the lack of prejudice is also supported by the record. Petitioner has not identified what questions counsel might have presented during voir dire that would have ferreted out hidden bias against the duress defense. Indeed, it is difficult to conceive of how or why a potential juror might have bias against the duress defense. The concept that underlies the duress defense, being compelled to do something because one has been put in fear of harm, was already before the jury as an element of the armed robbery counts. There is nothing in the record to suggest that the jurors had any difficulty in understanding and applying the instructions regarding the duress defense. Accordingly, Petitioner has failed to demonstrate that the state courts' resolution of his claim is contrary to or inconsistent with clearly established federal law or involved an unreasonable determination of facts based on the record before the court. He is not entitled to habeas relief for this claim.
Petitioner next contends that the prosecutor argued material facts not in evidence during his opening and closing arguments and that his counsel rendered ineffective assistance because he failed to object. Petitioner identifies three specific instances where the prosecutor argued facts not in evidence:
Petitioner claims he never admitted or confessed anything, so the prosecutor's argument rendered his trial fundamentally unfair.
To be entitled to habeas relief on the basis of prosecutorial misconduct, the petitioner must demonstrate that the prosecutor's improper conduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982)). Prosecutors "must be given leeway to argue reasonable inferences from the evidence." Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)).
In evaluating the impact of the prosecutor's alleged misconduct, a court must consider the extent to which the claimed misconduct tended to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). The court also must consider the strength of the overall proof establishing guilt, whether the conduct was objected to by counsel and whether a curative instruction was given by the court. See id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United States, 295 U.S. 78, 84-85 (1935).
"Claims of prosecutorial misconduct are reviewed deferentially on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). Indeed, "[t]he Supreme Court has clearly indicated that the state courts have substantial breathing room when considering prosecutorial misconduct claims because `constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.'" Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)). Thus, in order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (internal quotation omitted).
The trial court rejected Petitioner's prosecutorial misconduct arguments:
(Berrien Cnty. Cir. Ct. Ord., ECF No. 8-9, PageID.995-996.)
The trial court's factual determinations regarding the content of the record are unassailable. Petitioner informed the detectives of his involvement in the armed robbery. Detective Farrone so testified, and the jury watched the videotapes of the interviews. Moreover, Petitioner's defense of duress acknowledges his role in the armed robbery. Petitioner's argument is patently frivolous. He is not entitled to habeas relief on his claims of prosecutorial misconduct.
Petitioner challenges his appellate counsel's assistance as ineffective because counsel failed to raise the voir dire and prosecutorial misconduct arguments on appeal. An appellant has no constitutional right to have every non-frivolous issue raised on appeal. "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). To require appellate counsel to raise every possible colorable issue "would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Strickland, 466 U.S. at 688. As the Supreme Court has observed, it is difficult to demonstrate that an appellate attorney has violated the performance prong where the attorney presents one argument on appeal rather than another. Smith v. Robbins, 528 U.S. 259, 289 (2000). In such cases, the petitioner must demonstrate that the issue not presented "was clearly stronger than issues that counsel did present." Id. Where a claim lacks merit, appellate counsel is not ineffective in declining to raise the issue on direct appeal. See Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013) ("[A] petitioner cannot show that appellate counsel was ineffective for failing to raise a claim on appeal if the underlying claim itself lacks merit."); Burton v. Renico, 391 F.3d 764, 781-82 (6th Cir. 2004) (where claim of prosecutorial misconduct lacks merit, counsel is not ineffective in declining to raise issue on appeal).
The trial court resolved Petitioner's claims as follows:
(Berrien Cnty. Cir. Ct. Ord., ECF No. 8-9, PageID.996.)
The trial court's analysis and conclusions are entirely consistent with clearly established federal law. For the reasons set forth in §§ IV and V, supra, the claims appellate counsel failed to raise were without merit. Counsel's failure to raise a meritless issue does not constitute ineffective assistance of counsel. See Sutton v. Bell, 645 F.3d 752, 755 (6th Cir. 2011) ("Given the prejudice requirement, `counsel cannot be ineffective for a failure to raise an issue that lacks merit.'") "Omitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Petitioner is not entitled to habeas relief.
Even though I have concluded that Petitioner's habeas petition should be denied, under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467.
I have examined each of Petitioner's claims under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "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, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id.
I find that reasonable jurists could not conclude that this Court's denial of Petitioner's claims would be debatable or wrong.
For the foregoing reasons, I respectfully recommend that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied. See Slack v. McDaniel, 529 U.S. 473 (2000).
