REPORT AND RECOMMENDATION

TIMOTHY P. GREELEY, Magistrate Judge.

Petitioner filed this § 2254 petition for a writ of habeas corpus challenging the validity of his state court conviction for violations of his constitutional rights. On July 2, 2002, a jury convicted Petitioner of First Degree Felony Murder (MICH. COMP. LAWS § 750.316(1)(b)), for which Petitioner was sentenced to life imprisonment without parole. PageID.558-559. Petitioner remains in the custody of the Michigan Department of Corrections (MDOC).

After his trial, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. PageID.559. The Court of Appeals denied his application and affirmed his conviction on June 8, 2004. PageID.559; People v. Terrell, No. 243097, 2004 WL 1254310 (Mich. Ct. App. June 8, 2004). However, the appellate court remanded the case to the trial court to determine if a new trial was warranted on the basis of a witness's recanted testimony. Id. Petitioner sought reconsideration of his Crawford hearsay claims in the Michigan Court of Appeals, but the appellate court denied his claims on the merits on July 28, 2004. ECF No. 48. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, which was denied on January 27, 2005. People v. Terrell, 472 Mich. 851 (2005).

Pursuant to the appellate court's remand order, the Michigan trial court held evidentiary hearings on May 27, 2005, and January 26, 2006. ECF No. 46, 47. The trial court denied Petitioner's motion for a new trial. ECF No. 47 at 62-81. Petitioner appealed the trial court's denial of his request for a new trial, which the appellate court denied on June 29, 2006. ECF No. 51. Petitioner appealed to the Michigan Supreme Court, but this appeal was denied on November 29, 2006. ECF No. 52.

Petitioner did not file a motion for relief from judgment in the state trial court, nor did he appeal to the United States Supreme Court. Instead, he filed this habeas petition on February 22, 2008. ECF No. 1.1

Petitioner maintains that his convictions were based on violations of his state and federal rights. Petitioner sets forth the following claims for relief:

PageID.563-564, 566-567, 569-570. Respondent filed a response to the amended petition on November 5, 2008, addressing only Petitioner's fourth claim. ECF No. 14. Magistrate Judge Scoville issued a report and recommendation on March 1, 2011, dismissing this fourth claim in Petitioner's amended petition. ECF No. 59. Judge Bell adopted this report and recommendation on March 17, 2011. ECF No. 60. Respondent then filed a response to the remaining claims raised in Petitioner's amended petition. ECF No. 66, 67, 70. The Court subsequently stayed this case pending the Sixth Circuit's decision in Ambrose v. Booker, 801 F.3d 567 (6th Cir. 2015). ECF No. 79. Once resolved, Petitioner and Respondent filed briefs discussing how the ruling in Ambrose affects the present case. ECF No. 84, 85. The matter is now ready for a decision.

Petitioner filed this petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone, 535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas "retrials" and ensures state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas application by a person in state custody shall not be granted in regards to any claim that has previously been adjudicated on the merits in state court unless the adjudication:

28 U.S.C. § 2254(d)(1)-(2).

This Court may only consider "clearly established holdings" of the Supreme Court, not lower federal courts, in analyzing a petitioner's claim under § 2254. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5) it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey, 271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).

A federal habeas court may not find a state adjudication to be "unreasonable" simply because that court decides, in its own judgment, that the relevant state decision applied federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the state court's application of clearly established federal law was "objectively unreasonable"). This Court defers to state court decisions when the state court addressed the merits of petitioner's claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510, 534 (2003) (allowing review of habeas application de novo when state court clearly did not reach the question). When applying AEDPA to state factual findings, factual issues by state courts are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.

After applying the standards under AEDPA to Petitioner's case, the undersigned concludes that Petitioner has not provided clear and convincing evidence that the state court improperly applied clearly established federal law to the facts of Petitioner's case.

For Petitioner's first claim, he asserts that his Sixth Amendment rights were violated because "the jury [that] decided his case was not a fair cross representation of the population of Ken[t] County." PageID.563. Petitioner contends that "[a]t the time of Petitioner's trial there was shown to be a systematic exclusion of African American jurors due to a computer malfunction resulting in a significantly reduced minority representation on the jury and in fact, Petitioner had only 1 African American juror on his jury." PageID.563. Petitioner notes that this computer glitch resulted in jury notices not being sent to certain zip codes in Kent County that included African American and Hispanic populations, as well as low income persons.2 PageID.33. As a result, even though there were 101 people present at his jury venire, only three were African Americans (two of whom were ineligible). PageID.33. The one remaining African American made it to the sixteen person jury, but was deemed an alternate at the end of the trial—meaning this person did not participate in the verdict. PageID.33. Petitioner's trial attorney was informed of this "computer glitch" after Petitioner's trial, and thus raised the issue at Petitioner's sentencing. PageID.41.

Respondent asserts that this claim is procedurally defaulted. When a state-law default prevents further state consideration of a federal issue, the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). To determine whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state court enforced the rule so as to bar the claim; and (3) the state procedural default is an "independent and adequate" state ground properly foreclosing federal habeas review of the federal constitutional claim. See Lancaster, 324 F.3d at 436-37; Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). In determining whether a state procedural rule was applied to bar a claim, a reviewing court looks to the last reasoned state-court decision disposing of the claim. See Ylst, 501 U.S. at 803; Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 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, 377 F.3d at 551-52. The miscarriage-of-justice exception can be met only in an "extraordinary" case where a prisoner asserts a claim of actual innocence based upon new reliable evidence. House, 547 U.S. at 536. A habeas petitioner asserting a claim of actual innocence must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).

The parties' filings demonstrate that they do not dispute that Petitioner's fair-cross-section claim is procedurally defaulted, as he did not raise this claim until sentencing. PageID.1141, 1218; see Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012) (citing People v. Dixon, 217 Mich.App. 400, 403-04 (1996) ("There is no dispute that petitioners defaulted their claims by failing to object to the jury venire at trial, in violation of Michigan's contemporaneous objection rule.")). Moreover, Respondent concedes that the "cause" prong for overcoming procedural default is not in dispute either. PageID.1201 ("In the first Ambrose decision, the Sixth Circuit made clear that the cause prong has been satisfied [with regard to the computer glitch issue in Kent County, Michigan], and therefore this component of procedural default is no longer at issue.") (citing Ambrose, 684 F.3d at 645-59). Consequently, the only question remaining with regard to overcoming the procedural default issue is whether Petitioner has demonstrated sufficient prejudice.

When a jury selection claim, such as this one, has been procedurally defaulted, the petitioner must demonstrate actual prejudice by showing that "there was a reasonable probability that `a properly selected jury [would] have been less likely to convict.'" Ambrose, 684 F.3d at 652 (quoting Hollis v. Davis, 941 F.2d 1471, 1482 (11th Cir. 1991)). Moreover, "`the prejudice component of the cause and prejudice test is not satisfied if there is strong evidence of Petitioner's guilt and a lack of evidence to support his claim.'" Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994)); see also Ambrose, 684 F.3d at 651 ("[F]ederal courts should not reverse state court decisions unless a petitioner can show that the outcome would have been different."). To make this determination, the courts must carefully review the transcripts and determine if there is a reasonable probability that the outcome of the case would have been different (i.e., the jury would have reached another result). Ambrose, 684 F.3d at 652 (noting that the prejudice standard stems from the Strickland v. Washington, 466 U.S. 668 (1984) prejudice standard); see also Ambrose, 801 F.3d at 580 ("`The most important aspect to the [actual prejudice] inquiry is the strength of the case against the defendant,' which requires courts to take a `careful look at the transcripts involved.'") (citation omitted).

Upon review of the transcripts of record, it is clear that the evidence against Petitioner at his trial was overwhelming. Petitioner's trial was twenty-two days, and several witnesses testified either as co-conspirators or people to whom Petitioner confessed his crimes. The Michigan Court of Appeals also, when evaluating Petitioner's sufficiency of the evidence claim, concluded that the evidence against Petitioner at trial was strong:

Terrell, 2004 WL 1254310, at **1-2. Based on the vast array of corroborating testimony at Petitioner's trial, it is clear that the prosecution's case against Petitioner was strong. Ambrose, 801 F.3d at 580; cf. Garcia-Dorantes v. Warren, 801 F.3d 584, 596-99 (6th Cir. 2015) (noting that the evidence of intent for murder at the petitioner's trial was not overwhelming, which satisfied the "actual prejudice" standard for overcoming procedural default).

Nonetheless, Petitioner attempts to undermine the evidence and testimony presented at trial in order to satisfy the actual prejudice standard for overcoming the procedural default. For example, Petitioner contends that: (1) Ms. VanMeter was not a credible witness, (2) there was not any DNA evidence or prints linking Petitioner to the crime scene, (3) prejudicial hearsay was admitted through Mr. Hillary, Mr. DeVries, and Ms. Rouker, (4) the testimony of Mr. Lee and Mr. Crump was recanted, and (5) that prejudicial phone evidence was admitted. PageID.1158-1160. Petitioner raises these issues in his remaining six claims and, for the reasons explained in the remainder of this opinion, they lack merit. Moreover, Petitioner's theory of defense—that he was not present at Mr. Fryling's home on the day of the murder—was weak. The defense provided no information to corroborate this theory; rather, they focused on the alleged "lack of evidence" to prove Petitioner's innocence. While "a defendant in a criminal trial need not . . . produce any evidence," United States v. Drake, 885 F.2d 323, 323 (6th Cir. 1989), a defendant must show some support for his theory in order to argue that it is reasonably probable that a different jury would have accepted this defense. Ambrose, 801 F.3d at 581. As a result, Petitioner has not demonstrated that there is a reasonable probability that the outcome of the case would have been different (i.e., the jury would have reached another result). Ambrose, 684 F.3d at 652. Consequently, Petitioner has not established actual prejudice sufficient to overcome the procedural default on his fair-cross-section claim, and the undersigned recommends that this claim be denied.

In his second claim, Petitioner asserts that his Confrontation Clause rights under the Sixth Amendment were violated when the trial court admitted hearsay statements at trial. PageID.564. The alleged hearsay statements were improperly admitted under the "catch all" hearsay exception. PageID.564. The specific hearsay statements arose when Fred DeVries and Leanna Rouker testified with regard to statements that the deceased Ms. Skwarek said to them, as well as a statement that Christine VanMeter made to her attorney, Richard Hillary, which Mr. Hillary then testified to at trial.

The Sixth Amendment guarantees criminal defendants a right to confront and cross-examine adverse witnesses against them at trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). Testimonial out-of-court statements by witnesses are barred under the Confrontation Clause unless witnesses are unavailable and defendants had a prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by the court. Crawford v. Washington, 541 U.S. 36 (2004) (abrogating Ohio v. Roberts, 448 U.S. 56 (1980)). Testimonial hearsay may include a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51-52 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). For example, testimonial statements include formal statements made to government officers by an accuser (by way of an affidavit, prior testimony, deposition, etc.), or testimony arising from a preliminary examination, a grand jury, a former trial, or a police interrogation. Crawford, 541 U.S. at 51-52.

Nontestimonial hearsay does not implicate the Confrontation Clause. Crawford, 541 U.S. at 61-62; see Davis v. Washington, 547 U.S. 813, 823-34 (2006); Swift v. Burt, No. 15-11055, 2016 WL 1583809, at *5 (E.D. Mich. Apr. 20, 2016). A statement is not testimonial if it is "a casual remark to an acquaintance, business records, or statements made in furtherance of a conspiracy." Whittaker v. Lafler, 639 F.Supp.2d 818, 826 (E.D. Mich. 2009) (citing Crawford, 541 U.S. at 68); see also United States v. Franklin, 415 F.3d 537, 545-46 (6th Cir. 2005) (noting statements made to a friend by happenstance are not testimonial); United States v. Gibson, 409 F.3d 325, 338 (6th Cir. 2005) (noting "statements [that] were not made to the police or in the course of an official investigation . . . [nor in an attempt] to curry favor or shift the blame . . ." are nontestimonial statements).

Petitioner's first Confrontation Clause claim is that Mr. DeVries and Ms. Rouker were improperly permitted to testify with regard to statements that the deceased Ms. Skwarek had previously made to them. Upon review of the transcripts, it is clear that Ms. Skwarek's statements to Mr. DeVries and Ms. Rouker were nontestimonial, as these two witnesses were either a friend or acquaintance of Ms. Skwarek and the statements were made by happenstance. These witnesses were not, for example, police officers or government informants that were attempting to elicit statements to further prosecution against Petitioner. See, e.g., Franklin, 415 F.3d at 545. As a result, Petitioner cannot maintain a Confrontation Clause claim with regard to the statements made by Mr. DeVries and Ms. Rouker at trial, as nontestimonial statements do not implicate this Clause.

Petitioner's next Confrontation Clause claim is that the trial court impermissibly allowed Ms. VanMeter's attorney (Richard Hillary) to testify as to statements that Ms. VanMeter had told him—that she had been to Mr. Fryling's home, was involved in an armed robbery and homicide, and that she was being cooperative with law enforcement. PageID.50. Petitioner alleges that these statements were impermissibly admitted pursuant to Federal Rule of Evidence 803(24), the "catch all." PageID.50. Notably, however, Ms. VanMeter testified at trial—meaning she was available for cross-examination. ECF No. 29. As a result, Mr. Hillary's statements did not violate Petitioner's Confrontation Clause rights because Ms. VanMeter was available to be cross-examined about these statements. See Crawford, 541 U.S. at 59 n.9 ("Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.").

Even if Ms. VanMeter was not available to cross-examine at trial, her statements (introduced by Mr. Hillary) would still be admissible because the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). The Michigan Court of Appeals concluded that the statements pertaining to Ms. VanMeter that Mr. Hillary testified to at trial were not used for the truth of the matter asserted, and therefore did not violate Petitioner's right to confront the witnesses against him:

Terrell, 2004 WL 1254310, at *7. The appellate court thoroughly analyzed the purpose of Mr. Hillary's recitation of Ms. VanMeter's statements to him and demonstrated that these statements were not used for the truth of the matter asserted. Consequently, the Confrontation Clause was not violated when Mr. Hillary testified as to the statements Ms. VanMeter told him about Petitioner, and the undersigned recommends that this claim be denied.

For his third claim, Petitioner asserts that his due process rights were violated because there was an "eight (8) year delay from crime to arrest." PageID.566. Petitioner argues that he was prejudiced by this delay because "[t]he same witnesses were available to the prosecutor from the beginning," while one of Petitioner's witness's died and the other witness's memory failed. PageID.566. However, Respondent contends that this claim has not been exhausted since Petitioner raised it for the first time to the Michigan Supreme Court on appeal from the trial court's decision on remand. See, e.g., Terrell, 2004 WL 1254310 (noting Petitioner did not raise pre-indictment delay on direct appeal to the Michigan Court of Appeals); ECF No. 2-4 (noting Petitioner did not raise the issue of pre-indictment delay); PageID.329-341 (noting Petitioner first raised pre-indictment delay to the Michigan Supreme Court on appeal of the trial court's remanded decision).

Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to "fairly present" federal claims so that state courts have a "fair opportunity" to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. See O'Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4, 6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845.

An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the issues he has presented in this application. He may file a motion for relief from judgment under M.C.R. 6.500 et. seq. Under Michigan law, one such motion may be filed after August 1, 1995. M.C.R. 6.502(G)(1). Petitioner has not yet filed his one allotted motion. Therefore, the undersigned concludes that he has at least one available state remedy, and it is therefore recommended that this claim be denied without prejudice.

For his fifth claim, Petitioner asserts that his right to a fair trial under the Due Process Clause and Fourteenth Amendment were violated when the trial court admitted "a taperecording between Petitioner and his sister during the trial where he commented in street language about his opinion of the prosecutor and even his own lawyer." PageID.569. Petitioner indicates that the purpose of this phone call to his sister was to "vent" in private, and in so doing, he was "loud, hostile, and used street language." PageID.569. In comparison, while testifying at his trial, Petitioner was "calm and charming and used appropriate language." PageID.569. In addition, during his private phone call to his sister, Petitioner made "no admissions as to the crime he was charged with," and the tape only "showed a man angry with the system." PageID.569. Ultimately, Petitioner contends that the tape showed Petitioner at his worst, and that the tape was not a fair depiction of who he was, and as such it should not have been admitted at trial. PageID.569.

The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly excluded under state law "is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Id. at 67-68. Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.), cert. denied, 124 S.Ct. 345 (2003). "[C]ourts have defined the category of infractions that violate fundamental fairness very narrowly." Bugh, 329 F.3d at 512 (internal quotations and citations omitted).

Because Petitioner's claim relates to the admission of evidence at his trial, his claim is not cognizable on habeas review. See Estelle, 502 U.S. 62. Consequently, the undersigned recommends that this claim be denied.

Petitioner's sixth claim is that "Petitioner was denied Due Process and his right to a fair trial . . . when after conviction, a jail house snitch [Eddie Crump and Anthony Lee] admitted that [they] lied, yet the Trial Court refused him a new trial." PageID.569. Inmates Eddie Crump and Anthony Lee (witnesses for the prosecution) recanted their testimony after Petitioner was convicted, which caused the Court of Appeals to remand the case to the trial court to determine whether a new trial was warranted. Petitioner states that this recanted testimony is crucial to his defense because the prosecution "could not have convicted Mr. Terrell soly [sic] on the testimony of Christine Van Meter." PageID.60. Ultimately, Petitioner asserts that this evidentiary ruling was "so egregious that it result[ed] in a denial of fundamental fairness," thereby violating Petitioner's due process rights and warranting habeas relief pursuant to Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). PageID.62-63.

As previously mentioned, state law issues (such as evidentiary rulings) are not cognizable on habeas review. Estelle, 502 U.S. at 67-68 (noting that evidence admission is not cognizable on federal habeas review as it is a state-court determination of state-law issues). However, even if these state law issues were cognizable on habeas review, "`a determination of a factual issue made by a State court shall be presumed to be correct,' and the petitioner has the burden of rebutting this presumption by clear and convincing evidence." Smith v. Booker, No. 07-CV-15274, 2010 WL 451054, at *5 (E.D. Mich. Jan. 29, 2010) (citing 28 U.S.C. § 2254(e)(1)). Section 2254(d) does not permit federal habeas courts to redetermine the credibility of witnesses when their demeanor has been observed by the state trial court, and not the federal court. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983). The trial court is in the best position to determine the credibility of a witness. Smith, 2010 WL 451054, at *5. Moreover, credibility determinations lie within the trial judge's province. Snyder v. Louisiana, 552 U.S. 472, 477 (2008). Therefore, a state trial judge's credibility determination is entitled to great deference since he or she had the opportunity to observe the witness's demeanor when testifying. United States v. Oregon State Medical Soc., 343 U.S. 326, 339 (1952).

After remanding the case to the trial court to resolve the issue of Mr. Crump's and Mr. Lee's recanted testimonies, the trial court denied Petitioner's request for a new trial based on the trial judge's credibility determination of their recanted testimonies:

The court will, therefore, respectfully deny the motion . . . ECF No. 50 at 78-81 (Evidentiary Hearing Tr., Jan. 26, 2006); see also ECF No. 51 (Trial Court Order Jan. 31, 2006).

The decision of the trial court was affirmed by the Michigan Court of Appeals, and this decision was not contrary to, or an improper application of, any well-established Supreme Court precedent. The trial judge observed Mr. Crump and Mr. Lee at Petitioner's trial and at the evidentiary hearing years later, and the judge determined that the timing of their recanted testimonies was suspect for the aforementioned reasons. Because Petitioner has not provided any information to corroborate the recanted testimonies of these two witnesses, he failed to demonstrate that the trial court's decision was improper. See Smith, 2010 WL 451054, at *7 (citing Allen v. Woodford, 395 F.3d 979, 994 (9th Cir. 2005) (stating that uncorroborated recanted testimonies are even less reliable when the trial testimony was consistent with other evidence and the recanted testimony is not)). As a result, the undersigned defers to the credibility determinations of the two witnesses' recanted testimonies, and therefore recommends that this claim be denied.

Petitioner's seventh claim is that he was denied a fair trial when the prosecution "engaged in misconduct by using the perjured testimony of witnesses." PageID.569. Specifically, Petitioner asserts that the prosecution acted improperly by having Mr. Crump and Mr. Lee testify falsely on the stand. PageID.569. After the trial, Petitioner contends that the snitches "admitted that they had lied and were encouraged to lie by the authorities." PageID.569. Based on this information, "[t]he Michigan Court of Appeals remanded the matter to the Trial Court to conduct a hearing as to whether Petitioner should be granted a mew [sic] trial based upon the recanted testimony[, but] the Trial Court denied the motion." PageID.569.

Misconduct by a prosecutor can rise to the level of a due process violation. Lundy v. Campbell, 888 F.2d 467, 474 (6th Cir. 1989). "The Supreme Court has long recognized that due process is denied where `[the] state has contrived a conviction through the pretense of a trial which in truth is but used as a means of as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.'" Brooks v. Tennessee, 626 F.3d 878, 894 (6th Cir. 2010) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). "[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with the `rudimentary demands of justice.'" Giglio v. United States, 405 U.S. 150, 153 (1972). As such, when a conviction is obtained by the use of knowingly perjured testimony, the trial is rendered fundamentally unfair, and the conviction must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted).

It is Petitioner's burden to show that the testimony in dispute was perjured, which may be done by satisfying the three-part test fashioned by the Sixth Circuit "for determining whether there was a denial of due process through the use of false testimony," Peoples v. Lafler, 734 F.3d 503, 515 (6th Cir. 2013).

Lafler, 734 F.3d at 516 (quoting Brooks, 626 F.3d at 894-95 (quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998))). The testimony of a witness is material only when there is a reasonable likelihood that it affected the outcome of the trial. Lafler, 734 F.3d at 516 (citing Brooks, 626 F.3d at 895).

Here, Petitioner has not demonstrated any of the three factors for his due process claim. First, while it is clear that Mr. Crump and Mr. Lee were either lying at the trial or at the evidentiary hearing, Petitioner has not clearly established that the perjury occurred at his trial. In fact, the trial judge stated that Mr. Crump's recanted testimony, for example, was extremely suspect as it occurred years after Petitioner's trial and only after being housed in the same correctional facility as Petitioner—implying that the recanted testimony was more likely the perjured one. ECF No. 50 at 78-81 (Evidentiary Hearing Jan. 26, 2006). Second, as the trial judge noted at the January 26, 2006 evidentiary hearing, the jury informed the trial attorneys that they only considered the testimony of Ms. VanMeter when deciding whether Petitioner was guilty (ECF No. 50 at 63-65)—meaning the testimonies of Mr. Lee and Mr. Crump were not material to Petitioner's case. Third, Petitioner has not established that the prosecutor should have known (or knew) that Mr. Lee and Mr. Crump were lying since their testimonies were consistent with many other witnesses' testimonies that took place during trial. As a result, Petitioner has not shown that any prosecutorial misconduct occurred based on allowing Mr. Lee and Mr. Crump to testify at Petitioner's trial. Consequently, the undersigned recommends that this claim be denied.

For Petitioner's eighth and final claim, he asserts that he was denied a fair trial when the trial court "did not sua sponte change venue due to the over whelming [sic] amount of pre-trial publicity that in effect "titled [sic] the scales" against Petitioner." PageID.570. Petitioner noted the highly publicized nature of his trial in his petition:

PageID.570; see also ECF No. 2.

Petitioner raised this claim to the Michigan Court of Appeals in his direct appeal. The appellate court reviewed the claim and denied it on procedural grounds:

Terrell, 2004 WL 1254310, at *4. As mentioned by the appellate court, Petitioner procedurally defaulted his change of venue claim by failing to contemporaneously object to, or request, a change of venue before trial. See People v. Van Dorsten, 441 Mich. 540, 544-45 (1993). It is clear that the contemporaneous objection rule was well-established at the time of Petitioner's trial. See, e.g., People v. Kelly, 423 Mich. 261, 271-72 (1985). Petitioner's failure to comply with the state's independent and adequate state procedural rule, i.e., making a contemporaneous objection, caused him to default this claim in state court. See Wainwright v. Sykes, 433 U.S. 72, 86-88 (1977); Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011); Awkal v. Mitchell, 613 F.3d 629, 648 (6th Cir. 2010); Lancaster, 324 F.3d at 437; West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). Accordingly, review by this court is barred unless Petitioner can show cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray, 477 U.S. at 485. However, Petitioner has not set forth any "cause" explaining why he failed to raise his change of venue claim in a timely manner. As a result, his claim is procedurally defaulted.

Even if Petitioner's claim was not procedurally defaulted, his claim still fails on the merits. The situations in which pretrial publicity has prejudiced a defendant's right to a fair trial are extremely narrow and limited to extraordinary circumstances. See DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998). Prejudice may be presumed only in cases "where the influence of the news media, either in the community at large, or in the courtroom itself, `pervaded the proceedings.'" Galvan v. Stewart, No. 2:15-CV-10882, 2016 WL 1090424, at *5 (E.D. Mich. Mar. 21, 2016) (Murphy v. Florida, 421 U.S. 794, 798-99 (1975) (internal citations omitted)). However, even pervasive pretrial publicity does not always lead to an unfair trial. Id. (citing DeLisle, 161 F.3d at 382). Indeed, the jury's "indicia of impartiality" is disregarded "only in those cases `where the general atmosphere in the community or courtroom is sufficiently inflammatory.'" DeLisle, 161 F.3d at 382 (quoting Murphy, 421 U.S. at 802). This means that mere "prior knowledge of the existence of the case, or familiarity with the issues involved, or even some preexisting opinion as to the merits, does not in and of itself raise a presumption of jury taint." DeLisle, 161 F.3d at 382. Jurors need not be completely ignorant of the facts and issues involved in a defendant's case, especially given the rate in which information can spread. Id. at 382-83 (citing Irvin v. Dowd, 366 U.S. 717, 722-23 (1961)). In fact,

Irvin, 366 U.S. at 723. Therefore, the relevant inquiry is "whether the [juror's] exposure to media publicity will preclude the individual from returning a verdict based solely on the person's application of the law as stated to the evidence presented." Galvan, 2016 WL 1090424, at *5 (citing Dell v. Straub, 194 F.Supp.2d 629, 654 (E.D. Mich. 2002)).

Here, Petitioner has presented evidence of "straight news stories rather than invidious articles which tend to arouse ill will and vindictiveness." Galvan, 2016 WL 1090424, at *5 (quoting DeLisle, 161 F.3d at 385). The number of articles provided by the parties with relation to Petitioner's trial were not so numerous or inflammatory as to render his trial unfair; instead, the articles set forth the "bare-bones facts" in the trial. Galvan, 2016 WL 1090424, at *5 (citing Deel v. Jago, 967 F.2d 1079, 1087-88 (6th Cir. 1992)). As a result, the undersigned recommends that Petitioner's claim that he received an unfair trial due to the pretrial publicity involved in his case, and that the trial court erred by not sua sponte ordering a change of venue, be denied.

The Michigan Court of Appeals reached the same conclusion when it denied this claim on the merits:

Terrell, 2004 WL 1254310, at **4-5; see also ECF No. 21 at 9-10. The decision of the appellate court is thorough and complete, and it was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Consequently, it is recommended that Petitioner's change of venue claim be denied.

Accordingly, it is recommended that the Petition for writ of habeas corpus be dismissed.

Should Petitioner choose to appeal this action, the Court must determine whether a certificate of appealability may 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). Each issue must be considered under the standards set forth 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." Slack, 529 U.S. at 484. The undersigned examined each of Petitioner's claims under the Slack standard and concludes that reasonable jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong. Therefore, this Court recommends that a CERTIFICATE OF APPEALABILITY BE DENIED as to each issue raised by Petitioner.

In summary, the undersigned recommends that Petitioner's habeas claims I, II, V, VI, VII, and VIII (ECF No. 7), filed pursuant to 28 U.S.C. § 2254, be DISMISSED WITH PREJUDICE while claim III be DISMISSED WITHOUT PREJUDICE.

NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); W.D. MICH. LCIVR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140 (1985).