OPINION AND ORDER (1) DENYING PETITION FOR A WRIT OF HABEAS CORPUS (ECF #1) AND AMENDED PETITION (ECF #11), (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

MATTHEW F. LEITMAN, District Judge.

Petitioner Marcus Hanserd is a state prisoner in the custody of the Michigan Department of Corrections. On March 25, 2016, Hansered filed a pro se petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) Hanserd filed an amended petition on November 7, 2016. (See ECF #11.) In the petitions, Hanserd challenges his state-court convictions for first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a); carjacking, Mich. Comp. Laws § 750.529a; felon in possession of a weapon, Mich. Comp. Laws § 750.224f; carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws § 750.226, and four counts of possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b.

The Court has reviewed Hanserd's claims and concludes that he is not entitled to federal habeas relief. Accordingly, for the reasons set forth below, the Court will DENY his petitions. The Court will also decline to issue Hanserd a certificate of appealability. However, it will grant him permission to appeal in forma pauperis.

I

Hanserd was convicted following a jury trial in the Saginaw County Circuit Court. The Michigan Court of Appeals described the underlying facts as follows:

People v. Hanserd, 2012 WL 3966227, at *1 (Mich. Ct. App. Sept. 11, 2012).

Hanserd appealed his convictions to the Michigan Court of Appeals, and that court affirmed. See id. Hanserd then sought leave to appeal in the Michigan Supreme Court, and that court denied leave. See People v. Hanserd, 828 N.W.2d 45 (Mich. 2013).

Hanserd next filed a post-conviction motion for relief from judgment with the state trial court. That court denied the motion. See People v. Hanserd, No. 10-034377-FC-5 (Saginaw Cty. Cir. Ct., Dec. 4, 2013); reconsideration den. No. 10-034377-FC-5 (Saginaw Cty. Cir. Ct., Feb. 2, 2014). The Michigan appellate courts denied Hanserd leave to appeal that decision. See People v. Hanserd, No. 322993 (Mich. Ct. App. Dec. 11, 2014); lv. den. 872 N.W.2d 435 (Mich. 2015).

Hanserd thereafter filed the instant petitions for federal habeas relief in this Court. In those petitions, he seeks relief on the following grounds:

II

The majority of Hanserd's claims are reviewed under the standards established in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) ("AEDPA"). AEDPA provides that:

28 U.S.C. § 2254(d).

"The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

III

Respondent first argues that portions of Hanserd's first and second claims and his fourth claim are procedurally defaulted for various reasons.

Procedural default is not a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition, "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). This Court believes that it would be more efficient to proceed to the merits of Hanserd's claims, particularly where several of the defaulted claims are interrelated with the properly preserved claims.

Respondent also argues that Hanserd's fifth claim, which Hanserd raised for the first time in his amended habeas petition, is barred by the statute of limitations because the amended petition was filed after the limitations period expired, and the fifth claim does not relate back to the claims filed in the initial petition.

The statute of limitations does not constitute a jurisdictional bar to habeas review. Therefore, a federal court, can, in the interest of judicial economy, proceed directly to the merits of a habeas petition even if the claims therein are barred by a limitations period. See Smith v. State of Ohio Dept. of Rehabilitation, 463 F.3d 426, 429, n. 2 (6th Cir. 2006) (quoting Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)). This Court need not resolve the dispute over the timeliness of Hanserd's amended habeas petition. Assuming without deciding that the amended petition was timely, Hanserd's fifth claim fails on the merits for the reasons stated below. See Ahart v. Bradshaw, 122 F. App'x 188, 192 (6th Cir. 2005).

IV

A

In Hanserd's first and fourth claims, he argues that there was insufficient evidence to convict him of the charged crimes. The question before the Michigan appellate courts on Hanserd's sufficiency-of-the-evidence claims was "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). But, on habeas review under AEPDA, this claim must survive "two layers" of deference:

Coleman v. Johnson, 566 U.S. 650, 651 (2012) (internal punctuation and citations omitted). See also Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (noting that when analyzing a Jackson claim on habeas review, reviewing court "cannot even inquire whether any rational trier of fact would conclude that petitioner [] is guilty of the offenses with which he was charged. Instead, [the reviewing court] must determine whether the [state] Court of Appeals itself was unreasonable in its conclusion that a rational trier of fact could find [the petitioner] guilty beyond a reasonable doubt based upon the evidence introduced at trial").

The Court now turns to each of Hanserd's insufficiency-of-the-evidence claims.

1

Hanserd first contends that there was insufficient evidence to establish his identity as the perpetrator of the crime. The Michigan Court of Appeals considered this claim on direct review and rejected it:

[. . . .]

Hanserd, 2012 WL 3966227, at *2 (internal footnote omitted).

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. Here, an eyewitness to the crime — a woman named Dawn Leuders — identified Hanserd at trial as being the shooter based on her personal observation of the crime. That testimony alone was sufficient to support Haserd's convictions, and it forecloses Hanserd from obtaining federal habeas relief based upon the insufficiency of the evidence. See Thomas v. Perry, 553 F. App'x 485, 487-88 (6th Cir. 2014) (rejecting habeas petitioner's sufficiency of evidence claim and affirming denial of habeas relief where eyewitness had identified petitioner as the shooter).

Hanserd counters that there were numerous inconsistencies in Lueders' testimony as well as inconsistencies between the various other witnesses regarding their observations of the shooting. But when a federal court reviewing a state-court conviction on habeas review is "faced with a record of historical facts that supports conflicting inferences[, the federal court] must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Cavazos v. Smith, 565 U.S. 1, 7 (2011) (quoting Jackson, 443 U.S. at 326). Moreover, the prosecution introduced other evidence that pointed to Hanserd as the perpetrator, such as evidence that Hanserd's blood was found in the stolen Camaro. The existence of this other evidence further confirms that the Michigan Court of Appeals did not unreasonably apply Jackson when it rejected Hanserd's sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919-21 (6th Cir. 2012). Hanserd is therefore not entitled to federal habeas relief on this claim.

2

Hanserd next claims that there was insufficient evidence to support his convictions because the testimony of the medical examiner established that the murder could not have happened the way that Lueders and other witnesses described the shooting. More specifically, Hanerd argues that Lueders and others testified that he "opened the passenger door and shot into the vehicle three times at point blank range." (Pet., ECF #1 at Pg. ID 63-64.) But Hanserd says that based on the medical examiner's testimony regarding the trajectory of the bullets and where they entered the victim, "[t]he fact that no bullets were travelling in a downward angle, nor from the direction of the suspect, points to the impossibility that the crime occurred in the manner which Ms. Lueders and [another witness] testified to." (Id.)

The Michigan Court of Appeals considered this claim on direct review and rejected it:

Hanserd, 2012 WL 3966227, at *3.

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. Most importantly, Hanserd is wrong when he argues that Lueders testified that he shot the victim at "point blank" range, and that Lueders' testimony is therefore inconsistent with the medical examiner's testimony. Lueders testified only that Hanserd "opened the passenger door[] and shot into the vehicle at the man sitting there." (ECF #10-9 at Pg. ID 491.) Leuders did not testify how far Hanserd was from the victim when Hanserd fired the shots, nor did she testify at what angle Hanserd pointed the gun. Hanserd has not sufficiently shown how that testimony offered by Lueders is inconsistent with the testimony of the medical examiner. Moreover, as noted above, to the extent that there were conflicts in the evidence, it was for the jury, not this Court on habeas review, to resolve those conflicts. See Jackson, 443 U.S. at 326. For all of these reasons, the Michigan Court of Appeals' decision affirming the jury's verdict was not contrary to, nor an unreasonable application of, clearly established federal law. Hanserd is therefore not entitled to federal habeas relief on this claim.

3

Finally, Hanserd argues that the jury's verdict went against the great weight of the evidence. A federal habeas court has no power to grant habeas relief on the ground that a state conviction is against the great weight of the evidence because that is a "state-law argument" and a "federal court is only allowed to review issues of federal law in a habeas proceeding." Nash v. Eberlin, 258 F. App'x 761, 764 n.4 (6th Cir. 2007). See also Artis v. Collins, 14 F. App'x 387 (6th Cir. 2001) (declining to grant certificate of appealability to habeas petitioner on claim that jury's verdict was against the manifest weight of the evidence). Hanserd is therefore not entitled to federal habeas relief on this claim.

B

Hanserd next alleges that the state trial court deprived him of a fair trial when it allowed the prosecutor to introduce evidence that Hanserd had been involved in a separate armed robbery about thirty minutes before the carjacking and murder. The Michigan Court of Appeals considered this claim on direct review and rejected it:

Hanserd, 2012 WL 3966227, at *5.

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. To the extent that the state trial court violated the Michigan Rules of Evidence when it admitted this evidence, that was an error of state law. And, as noted above, "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States"). This claim is therefore not cognizable on federal habeas review. See Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Moreover, Hanserd not shown that that the trial court's evidentiary rulings were "so egregious" that they violated his federal due process rights. McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (explaining that only when an evidentiary ruling is "so egregious that it results in a denial of fundamental fairness" may it violate federal due process rights and warrant federal habeas relief). Hanserd has therefore failed to establish a right to federal habeas relief on this claim.

C

Hanserd next argues that the state trial court denied him a fair trial when it refused to appoint him an expert to testify about the problems of eyewitness identification. The Michigan Court of Appeals considered this claim on direct review and rejected it:

Hanserd, 2012 WL 3966227, at ** 3-4.

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. Hanserd has not identified any Supreme Court case which has recognized that a criminal defendant has a constitutional right to the appointment of this kind of expert witness. And there appears to be law to the contrary. For example, in Moore v. Tate, 882 F.2d 1107, 1110-11 (6th Cir. 1989), the Sixth Circuit reversed a district court's grant of a writ of habeas corpus and held that a defendant in a state criminal trial was not denied his constitutional right to a fair trial when the state trial court excluded expert testimony on the reliability of eyewitness identification. The court noted that the examination and cross-examination of the eyewitness at trial afforded the jury an adequate opportunity to assess the reliability of a witness' identification of the defendant. See id; see also Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001) ("[T]his court has recognized that a habeas petitioner does not have a constitutional right to the presentation of expert testimony on the reliability of eyewitness identification").

The United States Supreme Court precedent that would most closely address petitioner's claim is Ake v. Oklahoma, 470 U.S. 68, 83 (1985). In Ake, the Supreme Court held that when an indigent defendant demonstrates to a trial judge that his or her sanity at the time of the commission of the offense is to be a significant factor at trial, the state must provide a criminal defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense. But Hanserd has not identified any Supreme Court precedent that expands Ake to the appointment of non-psychiatric experts generally or identification experts specifically. And this Court is aware of none. See Ford v. Dretke, 135 F. App'x 769, 771-72 (5th Cir. 2005) (new rule proposed by habeas petitioner, requiring the appointment of an expert on eyewitness identification, did not fall within one of the exceptions to the rule against the application of a new rule on collateral review); Jackson v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990) (habeas petitioner's claim that his due process rights were violated when he was denied the appointment of an expert on eyewitness identification proposed a new rule in violation of Teague v. Lane, 489 U.S. 288 (1989), and therefore could not serve as a basis for federal habeas relief). Hanserd has therefore not established that he is entitled to federal habeas relief on this claim.

D

Hanserd next contends that the state trial court erred when it refused the give the jurors an instruction concerning the inherent unreliability of eyewitness identification. At the beginning of trial, defense counsel indicated that he gave the court and the prosecution a copy of a proposed instruction on the eyewitness identification but he did not specify the contents of that instruction. At the conclusion of trial, defense counsel asked that this instruction be read to the jury. Defense counsel acknowledged that the court was going to read the jurors the standard jury instruction on identification, but counsel also proposed a "custom jury instruction that goes a little bit more in detail and specifically cites holdings and language from People v. Anderson;2 that I am still asking the Court to give in addition to or instead of 7.8." (ECF #10-12 at Pg. ID 602.) The prosecutor objected to the proposed instruction on the ground that it took the holding in Anderson out of context and that the proposed instruction was more in the form of advocacy than an instruction. The trial court agreed that the proposed instruction appeared "to be somewhat advocacy as opposed to the standard [jury instruction], that's why we do that." (Id.) The court therefore defense counsel's request and indicated that it would give the standard jury instruction on identification. (Id.)

The Michigan Court of Appeals reviewed this claim on direct appeal and rejected it:

Hanserd, 2012 WL 3966227, at ** 5-6.

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack upon the constitutional validity of a state court conviction is even greater than the showing required in a direct appeal. The question in such a collateral proceeding is whether the allegedly-improper instruction so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even "universally condemned," and an "omission or an incomplete instruction[] is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). Furthermore, the challenged instruction must not be judged in isolation but must be considered in the context of the entire jury charge. See Jones v. United States, 527 U.S. 373, 391 (1999).

Hanserd has not met this demanding standard. He has not identified any clearly established federal law that he was entitled to the instruction he sought. Nor has Hanserd established that the state trial court unreasonably applied Supreme Court precedent when it refused to give his proposed instruction. For these reasons, Hanserd has not established that he is entitled to federal habeas relief on this claim.

E

Hanserd next argues that he was denied the effective assistance of counsel. Federal claims of ineffective assistance of counsel are subject to the deferential twoprong standard of Strickland v. Washington, 466 U.S. 668 (1984). Strickland asks: (1) whether counsel was deficient in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. See id. at 687. To meet the first prong, a petitioner must establish that his attorney's representation "fell below an objective standard of reasonableness," and must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action `might be considered sound trial strategy.'" Id. at 688, 689. The "prejudice" component of a Strickland claim "focuses on the question of whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice, under Strickland, requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

The Court will now examine each of Hanserd's claims of ineffective assistance in turn.

1

Hanserd first argues that his trial counsel was ineffective when counsel failed to call Mitchell Braddock as a witness at trial. Braddock originally contacted the police while he was in prison and indicated that he would be willing to incriminate Hanserd as the shooter in exchange for a sentence reduction. (See Exhibits C, D, E, and F to the Petition.) However, at the preliminary examination, Braddock testified both that he did not remember what happened the night of the murder and that he did not see anything. (See ECF #10-2 at Pg. ID 301). Braddock further testified that he saw a man identified as "Little Mark" at the convenience store and that "Little Mark" was not Hanserd. (See id. at Pg. ID 304.) Braddock then became evasive when the prosecutor tried to refresh his memory, claiming that that he had no memory of the day of the shooting, that he was often "high," and that he did not want to talk about it. (Id. at Pg. ID 301-05.) Hanserd insists that Braddock could have provided testimony that the man identified as "Little Mark," and not Hanserd, was not the shooter.

The Michigan Court of Appeals reviewed this claim on direct review and rejected it:

People v. Hanserd, 2012 WL 3966227, at *7.

Hanserd has not established that the Michigan Court of Appeals' ruling was contrary to, or an unreasonable application of, clearly established federal law. In the petition, Hanserd mischaracterizes Braddock's testimony. Braddock did not testify, as Hanserd claims, that Hanserd was not the shooter. Nor did Braddock testify that "Little Mark," and not Hanserd, was the shooter. Indeed, Braddock repeatedly said that he did not remember anything and was unwilling to definitively say anything about the shooting. It was not ineffective assistance for Hanserd's counsel to not call a witness who repeatedly testified at the preliminary examination that he had no information to provide about the shooting. See Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (defense counsel has no obligation to present evidence or testimony that would not have exculpated the defendant). The Michigan Court of Appeals' rejection of this ineffective assistance of counsel claim was therefore not unreasonable. Thus, Hanserd is not entitled to federal habeas relief on this claim.

2

In Hanserd's amended habeas petition, he claims that his trial counsel was ineffective when counsel failed to move for the suppression of Lueders' pre-trial identification. Hanserd argues that the pre-trial identification should have been suppressed because (a) there was no counsel present at a photographic lineup and (b) Lueders was informed after she had identified Hanserd at the lineup that she had picked out the right person. Hanserd is not entitled to federal habeas relief with respect to either of these claims.3

a

Hanserd first argues that his trial counsel should have moved to exclude the photographic identification because Hanserd did not have counsel present at the lineup. However, Hanserd has not identified any authority to support the proposition that criminal defendants have a federal constitutional right to have counsel present at a photographic lineup. Indeed, a pre-trial photographic identification is not a critical stage under the Sixth Amendment at which counsel is required to be present. See United States v. Ash, 413 U.S. 300, 321 (1973); Van v. Jones, 475 F.3d 292, 311 (6th Cir. 2007). The absence of counsel at the photographic lineup therefore provided no basis to suppress the identification. Thus, Hanserd's counsel was not ineffective for failing to move to exclude the identification on that basis. See United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005) (counsel is not ineffective for failing to make a futile objection).

b

Hanserd next claims that his trial counsel should have moved to suppress the pre-trial identification because the lineup was unduly suggestive. More specifically, Hanserd argues that the officer who conducted the lineup told Lueders after she positively identified Hanserd that she had picked out the right person, and that postidentification statement rendered the lineup inadmissible.

In order to determine whether an identification procedure violates due process, courts look first to whether the procedure was impermissibly suggestive; if so, courts then determine whether, under the totality of circumstances, the suggestiveness has led to a substantial likelihood of an irreparable misidentification. See Neil v. Biggers, 409 U.S. 188 (1972). Courts consider five factors when determining the reliability of identification evidence: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's prior description of the defendant; (4) the witness's level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the time and the confrontation. See id. at 199-200.

Hanserd has not even attempted to apply that governing test here. Nor has he identified any authority to support his claim that the lineup was rendered unduly suggestive by the officer's comments made after Lueders had already positively identified him. Finally, the Court notes that while reviewing a related claim, the Michigan Court of Appeals stated that the "record does not reflect procedures that were impermissibly suggestive." Hanserd, 2012 WSL 3966227, at *4. Simply put, Hanserd has not shown that his counsel had any basis to object to the lineup because it was unduly suggestive. He has therefore failed to establish that his counsel was ineffective for failing to object on this basis. See Sanders, 404 F.3d at 986.

As Hanserd has failed to demonstrate entitlement to federal habeas relief with respect to any of his claims, the Court will DENY his habeas petition and the amended petition (ECF ## 1, 11).

V

In order to appeal the Court's decision, Hanserd must obtain a certificate of appealability. To obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. See Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).

Here, jurists of reason would not debate the Court's conclusion that Hanserd has failed to demonstrate entitlement to habeas relief with respect to any of his claims because they are all devoid of merit. Therefore, the Court will DENY Hanserd a certificate of appealability.

Finally, although this Court declines to issue Hanserd a certificate of appealability, the standard for granting an application for leave to proceed in forma pauperis on appeal is not as strict as the standard for certificates of appealability. See Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a certificate of appealability may only be granted if a petitioner makes a substantial showing of the denial of a constitutional right, a court may grant in forma pauperis status if it finds that an appeal is being taken in good faith. See id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). Although jurists of reason would not debate this Court's resolution of Hanserd's claims, an appeal could be taken in good faith. Accordingly, the Court GRANTS Hanserd permission to proceed in forma pauperis on appeal.

VI

Accordingly, for the reasons stated above, the Court 1) DENIES WITH PREJUDICE Hanserd's petition for a writ of habeas corpus and his amended petition for a writ of habeas corpus (ECF ## 1, 11), 2) DENIES Hanserd a certificate of appealability, and (3) GRANTS Hanserd permission to proceed in forma pauperis on appeal.

IT IS SO ORDERED.