OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

SEAN F. COX, District Judge.

I. INTRODUCTION

Michigan prisoner Cameron Holbrook ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of his constitutional rights. Petitioner was convicted of first-degree murder and possession of a firearm during the commission of a felony following a jury trial in the Oakland County Circuit Court. He was sentenced, as a third habitual offender, to life imprisonment without the possibility of parole and a consecutive term of two years imprisonment on those convictions in 2008. This matter is before the Court on remand from the United States Court of Appeals for the Sixth Circuit, which reversed the Court's decision granting Respondent's motion for summary judgment and dismissing the habeas petition as untimely under the one-year statute of limitations applicable to federal habeas actions.

In his pleadings, Petitioner raises 15 claims for relief concerning the admission of the victim's statements to police and his girlfriend, the sufficiency of the evidence, the effectiveness of trial and appellate counsel, the absence of counsel/right to counsel, the impartiality of the trial judge, the application of state procedural law, an alleged state jurisdictional defect, the conduct of the prosecutor, the trial court's questions to a witness, and cumulative error. Respondent contends that the claims are non-cognizable, barred by procedural default, and/or lack merit. Having reviewed the matter, the Court finds that Petitioner is not entitled to relief on his claims such that the habeas petition must be denied. The Court also finds that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

II. FACTS AND PROCEDURAL HISTORY

Petitioner's convictions arise from the shooting death of Gary Nelson Jr. in September, 2007 in Pontiac, Michigan. The prosecution, on direct appeal, set forth a detailed summary of the trial testimony. The Court adopts those facts to the extent that they are consistent with the record.

Pros. Brf. on App., pp. 1-12.

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the following claims through counsel:

Petitioner also filed a pro per supplemental brief on appeal raising the following claims of ineffective assistance of trial counsel:

The court denied relief on those claims and affirmed Petitioner's convictions. People v. Holbrook, No. 287383, 2010 WL 99010 (Mich. Ct. App. Jan. 10, 2010) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Holbrook, 486 Mich. 931, 781 N.W.2d 836 (May 25, 2010).

On May 19, 2011, Petitioner filed a pro se motion for relief from judgment and supplemental brief with the state trial court raising the following claims:

The court denied relief on those claims finding that Petitioner failed to establish cause or prejudice for his failure to raise the claims on direct appeal, failed to show that he was actually innocent, and denied relief pursuant to Michigan Court Rule 6.508(D)(3). People v. Holbrook, No. 07-218017-FC (Oakland Co. Cir. Ct. June 3, 2011). Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, which was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Holbrook, No. 308678 (Mich. Ct. App. Nov. 8, 2012) (unpublished). Petitioner did not timely seek leave to appeal with the Michigan Supreme Court. See Affidavit of Larry Royster, Michigan Supreme Court Clerk, dated July 1, 2013.

Petitioner dated his initial federal habeas petition on March 1, 2013 and it was filed by the Court on March 20, 2013. He then dated an additional habeas petition on April 24, 2013, which was filed by the Court on April 29, 2013.2 In his petition, he raises the following claims as grounds for habeas relief:

Initially, Respondent moved for summary judgment contending that the habeas petition was untimely under the one-year statute of limitations applicable to federal habeas actions. The Court granted that motion and dismissed the habeas petition as untimely. Holbrook v. Curtin, 2014 WL 65229 (E.D. Mich. Jan. 8, 2014). The Sixth Circuit, however, reversed that decision, and remanded the case for further proceedings. Holbrook v. Curtin, 833 F.3d 612 (6th Cir. 2016). The United States Supreme Court denied the State's petition for a writ of certiorari. Woods v. Holbrook, ___ U.S. ___, 137 S.Ct. 1436 (2017). This Court thereafter reopened the case and ordered supplemental briefing by the parties. Respondent has since filed an answer to the habeas petition contending that the claims are not cognizable, barred by procedural default, and/or lack merit. Petitioner has filed a reply to that answer.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

28 U.S.C. § 2254(d) (1996).

"A state court's decision is `contrary to' ... clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

A state court's determination that a claim lacks merit "precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id; see also White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal judges "are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court "has held on numerous occasions that it is not `an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) "does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington, 562 U.S. at 100. Furthermore, it "does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The requirements of clearly established law are to be determined solely by Supreme Court precedent. Thus, "circuit precedent does not constitute `clearly established Federal law as determined by the Supreme Court'" and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam). The decisions of lower federal courts, however, may be useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp. 354, 359 (E.D. Mich. 2002).

A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

IV. DISCUSSION

A. Direct Appeal Claims

1. Admission of Victim's Statements to Police

Petitioner first asserts that he is entitled to habeas relief because the trial court erred in admitting statements that the victim made to the police shortly before he died, i.e., that a black man named "Kimmy" shot him and that he was driving in a green Fleetwood Cadillac with another man. Petitioner asserts that the admission of those statements as a dying declaration violated his confrontation rights and state evidentiary law because the prosecution failed to show that the statements were based upon personal knowledge. Respondent contends that this claim is procedurally defaulted and is not cognizable on habeas review.

Alleged trial court errors in the application of state evidentiary law are generally not cognizable as grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Only when an evidentiary ruling is "so egregious that it results in a denial of fundamental fairness" may it violate due process and warrant habeas relief. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing Estelle, 502 U.S. at 69-70).

The Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause provides criminal defendants the right to confront and cross-examine witnesses against them. See, e.g., Davis v. Alaska, 415 U.S. 308, 315 (1973). The right to confront adverse witnesses generally prevents a court from admitting an out-of-court statement against a criminal defendant. California v. Green, 399 U.S. 149, 155-58 (1970). The Sixth Amendment protections, however, are not so broad as to exclude the admission of all hearsay statements against a defendant despite his or her inability to confront the declarant at trial. See Maryland v. Craig, 497 U.S. 836, 847-48 (1990). The constitutionality of admitting a hearsay statement depends on whether the statement is testimonial or non-testimonial in nature and on the circumstances surrounding the making of the statement.

The Michigan Court of Appeals reviewed this claim for plain error3 on direct appeal and denied relief. The court ruled that the admission of the victim's statements to police did not violate Petitioner's confrontation rights and found that the statements were based upon personal knowledge such that they were properly admitted under state law. The court explained in part:

***

***

Holbrook, 2010 WL 99010 at *1-2 (footnote and explanatory state law omitted).

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. First, to the extent that Petitioner challenges the admission of the victim's statements to the police under the Michigan Rules of Evidence, he merely alleges a violation of state law which does not entitle him to federal habeas relief. See Walker v. Harry, 462 F. App'x 543, 545 (6th Cir. 2012); Wheeler v. Jones, 59 F. App'x 23, 28 (6th Cir. 2003). A federal court may grant an application for writ of habeas corpus only on the ground that the petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Habeas relief does not lie for perceived errors of state law. Estelle, 502 U.S. at 67-68. State courts are the final arbiters of state law and federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas review."); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Petitioner is not entitled to habeas relief based upon a perceived violation of Michigan law concerning the admission of this evidence.

Second, to the extent that Petitioner alleges a constitutional violation, he is not entitled to relief. The victim's statements to police were properly admitted as a dying declaration under an exception to the hearsay rule under state law. And, contrary to Petitioner's claim, those statements were based upon the victim's personal knowledge of the circumstances of the shooting given that his injuries showed he was facing the shooter and given the specificity of his description. The statements were also made when the victim believed that his death was imminent given the nature and extent of his injuries and his deteriorating physical condition. Petitioner fails to demonstrate that the admission of this evidence rendered his trial fundamentally unfair.

Petitioner is also not entitled to habeas relief on his claim that the admission of the victim's statements to police violated his confrontation rights. In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that out-of-court statements which are testimonial in nature are barred by the Confrontation Clause of the Sixth Amendment if the declarant is unavailable at trial and the defendant did not have a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable. The Supreme Court, however, indicated that dying declarations may be an historical exception to this rule. Id. at 56 n. 6. The Supreme Court also confirmed that the rule of forfeiture by wrongdoing, i.e., that a defendant may not benefit from his wrongful prevention of a witness's future testimony, extinguishes confrontation claims on equitable grounds. Id. at 62; see also Mich. R. Evid. 804(b)(6).

The Supreme Court has yet to definitively rule on the status of dying declarations under the Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 351, n.1 (2011); see also Walker, 462 F. App'x at 545-46 (explaining that "[i]n Crawford and again in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L. Ed. 2d 488 (2008), the Supreme Court hinted that dying declarations may fall within an exception to the constitutional bar against testimonial hearsay"). Since Crawford, several courts have found a Confrontation Clause exception for dying declarations, see, e.g., Kennedy v. Coleman, No. 1:15-cv-684, 2016 WL 7475649, *9 (S.D. Ohio Dec. 29, 2016); Duncan v. Bobby, No. 1:07 CV 839, 2008 WL 111229, *8 (N.D. Ohio Jan. 8, 2008); People v. Taylor, 275 Mich.App. 177, 182-83, 737 N.W.2d 790 (2007), but some have not. See, e.g., United States v. Jordan, No. 04-CR-229-B, 2005 WL 513501, *3 (D. Colo. March 3, 2005). Most courts have concluded that the issue is unresolved. See, e.g., Walker, 462 F. App'x at 545-46; Martin v. Fanies, 365 F. App'x 736, 739 (5th Cir. 2010); United States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006); Taylor v. Prelesnik, No. 09-cv-14214, 2011 WL 4694055, *3-4 (E.D. Mich. Oct. 5, 2011) (citing cases). This Court agrees that the issue remains unresolved by the Supreme Court. Consequently, Petitioner cannot prevail on this claim as he cannot establish that the state court's decision is contrary to or an unreasonable application of clearly-established Supreme Court precedent. A state court cannot act unreasonably under AEDPA if the Supreme Court has not decided a question. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (reversing grant of habeas relief because Supreme Court precedent provided "no clear answer to the question presented"); Walker, 462 F. App'x at 545-46; Taylor, 2011 WL 4694055 at *3 (citing cases).

Moreover, several courts, including the Sixth Circuit, have recognized the continuing viability of forfeiture by wrongdoing doctrine. See, e.g., United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005) (upholding admission of murder victim's police statement about defendant's prior abuse); Mayhew, 380 F. Supp. 2d at 966-68 (admitting victim's dying declaration); People v. Bauder, 269 Mich.App. 174, 185-87, 712 N.W.2d 506 (2005) (citing Garcia-Meza and upholding admission of murder victim's statements). Given that the victim was unable to testify at trial due to Petitioner's wrongful conduct, it cannot be said that the admission of his statements violated due process or otherwise rendered Petitioner's trial fundamentally unfair. Habeas relief is not warranted on this claim.4

2. Admission of Victim's Statements to His Girlfriend

Petitioner next asserts that he is entitled to habeas relief because the trial court erred in admitting the victim's statement to his girlfriend that he was meeting Petitioner on the night of the shooting. Petitioner asserts that the admission of this evidence violated his confrontation rights and state evidentiary rules. Respondent contends that this claim is not cognizable on habeas review and that it lacks merit.

As discussed, alleged trial court errors in the application of state evidentiary law are generally not cognizable as grounds for federal habeas relief. See Estelle, 502 U.S. at 67-68; Serra, 4 F.3d at 1354. Only when an evidentiary ruling is "so egregious that it results in a denial of fundamental fairness" may it violate due process and warrant habeas relief. Bugh, 329 F.3d at 512; see also Wynne, 606 F.3d at 871; McAdoo, 365 F.3d at 494.

Also, as discussed, the Confrontation Clause provides criminal defendants the right to confront and cross-examine witnesses against them. Davis, 415 U.S. at 315. The right to confront adverse witnesses generally prevents a court from admitting an out-of-court statement against a criminal defendant. California, 399 U.S. at 155-58. The Sixth Amendment protections, however, are not so broad as to exclude the admission of all hearsay statements against a defendant despite his or her inability to confront the declarant at trial. Maryland, 497 U.S. at 847-48. The constitutionality of admitting a hearsay statement depends on whether the statement is testimonial or non-testimonial in nature and on the circumstances surrounding the making of the statement.

The Michigan Court of Appeals considered this claim on direct appeal and denied relief. The court explained:

Holbrook, 2010 WL 99010 at *3.

The state court's denial of relief is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. First, to the extent that Petitioner challenges the admission of the victim's statement to his girlfriend under the Michigan Rules of Evidence, he merely alleges a violation of state law which does not entitle him to federal habeas relief. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000); see also Wheeler, 59 F. App'x at 28. As discussed, a federal court may only grant habeas relief to a petitioner who is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Habeas relief does not lie for perceived errors of state law. Estelle, 502 U.S. at 67-68. State courts are the final arbiters of state law and federal courts will not intervene in such matters. Lewis, 497 U.S. at 780; Oviedo, 809 F.2d at 328; see also Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860. Petitioner is not entitled to habeas relief based upon a perceived violation of Michigan law concerning the admission of this evidence.

Second, Petitioner fails to show that the admission of this evidence rendered his trial fundamentally unfair. The testimony was relevant and admissible as an exception to the hearsay rule under state law because it reflected the homicide victim's intent or plan to meet Petitioner on the night of the shooting and its probative value was not substantially outweighed by the risk of undue prejudice. To be sure, the Sixth Circuit has observed that the "Supreme Court has never held (except perhaps within the capital sentencing context) that a state trial court's admission of relevant evidence, no matter how prejudicial, amounted to a violation of due process." Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012) (emphasis in original). The admission of this evidence did not violate due process.

Lastly, Petitioner fails to establish a violation of his confrontation rights. In Crawford, 541 U.S. at 54, the Supreme Court held that the testimonial statement of a witness who does not appear at trial is inadmissible unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness. Testimonial statements include preliminary hearing testimony, grand jury testimony, prior trial testimony, and statements made during police interrogations. Testimonial statements do not include remarks made to family members or acquaintances, business records, or statements made in furtherance of a conspiracy. Id. at 51-52, 56; United States v. Martinez, 430 F.3d 317, 328-29 (6th Cir. 2005); see also United States v. Stover, 474 F.3d 904, 912-13 (6th Cir. 2007). Additionally, the Confrontation Clause is not implicated, and need not be considered, when non-testimonial hearsay is at issue. Davis v. Washington, 547 U.S. 813, 823-24 (2006); see also Whorton v. Bockting, 549 U.S. 406, 420 (2007) (noting that the Confrontation Clause "has no application to such statements and therefore permits their admission even if they lack indicia of reliability"); Doan v. Carter, 548 U.S. 449, 458 (6th Cir. 2008). The victim's statement to his girlfriend was non-testimonial. Consequently, its admission did not implicate, nor violate, Petitioner's confrontation rights or otherwise render his trial fundamentally unfair. Habeas relief is not warranted on this claim.

3. Sufficiency of the Evidence

Petitioner also asserts that he is entitled to habeas relief because the prosecution presented insufficient evidence to support his convictions in terms of the identity of the shooter and the element of premeditation. Respondent contends that this claim lacks merit.

The federal Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency of the evidence claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard must be applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).

A federal habeas court views this standard through the framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the AEDPA, challenges to the sufficiency of the evidence "must survive two layers of deference to groups who might view facts differently" than a reviewing court on habeas review — the factfinder at trial and the state court on appellate review — as long as those determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). "[I]t is the responsibility of the jury — not the court — to decide what conclusions should be drawn from the evidence admitted at trial." Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). "A reviewing court does not re-weigh the evidence or re-determine the credibility of the witnesses whose demeanor has been observed" in the trial court. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The "mere existence of sufficient evidence to convict ... defeats a petitioner's claim." Id. at 788-89.

Under Michigan law, first-degree premeditated murder requires proof that the defendant intentionally killed the victim and that the killing was premeditated and deliberate. People v. Kelly, 231 Mich.App. 627, 642, 588 N.W.2d 480 (1998); Mich. Comp. Laws § 750.316. Premeditation and deliberation may be established by evidence showing: "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." People v. Schollaert, 194 Mich.App. 158, 170, 486 N.W.2d 312 (1992); see also People v. Abraham, 234 Mich.App. 640, 656, 599 N.W.2d 736 (1999). While there is no minimum time required to show premeditation under Michigan law, the time between initial thought and ultimate action should be long enough for a reasonable person to take a "second look" at the situation. People v. Abraham, 234 Mich.App. 640, 656, 599 N.W.2d 736 (1999). "A few seconds between the antagonistic action between the defendant and the victim and the defendant's decision to murder the victim may be sufficient to create a jury question on the issue of premeditation." Alder v. Burt, 240 F.Supp.2d 651, 663 (E.D. Mich. 2003). The elements of felony firearm are: (1) the defendant possessed a firearm, (2) during the commission of, or an attempt to commit, a felony. People v. Akins, 259 Mich.App. 545, 554, 675 N.W.2d 863 (2003) (quoting People v. Avant, 235 Mich.App. 499, 505, 597 N.W.2d 864 (1999)); Mich. Comp. Laws § 750.227b.

As with any crime, the prosecution must prove beyond a reasonable doubt that the defendant committed the offense. People v. Kern, 6 Mich.App. 406, 409, 149 N.W.2d 216 (1967). Direct or circumstantial evidence and reasonable inferences arising from that evidence may constitute satisfactory proof of the elements of an offense, People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993), including the identity of the perpetrator, Kern, 6 Mich. App. at 409; see also People v. Johnson, 146 Mich.App. 429, 434, 381 N.W.2d 740 (1985), and the defendant's intent or state of mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997); see also People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 (2000). The use of a lethal weapon supports an inference of an intent to kill. People v. Turner, 62 Mich.App. 467, 470, 233 N.W.2d 617 (1975).

Applying Jackson and the foregoing state law standards, the Michigan Court of Appeals denied relief on this claim finding that the prosecution presented sufficient evidence as to Petitioner's identity and intent to support his convictions. The court explained in relevant part:

Holbrook, 2010 WL 99010 at *4-5.

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. The evidence presented at trial, viewed in a light favorable to the prosecution, established that Petitioner committed the crime and that he acted with the requisite intent. First, as to identity, the prosecution presented evidence of the victim's statements to police identifying a black man named "Kimmy," who was driving with another man in a green Fleetwood Cadillac, as the shooter, as well as evidence of the victim's statement to his girlfriend that he was meeting Petitioner on the night of the shooting. The testimony of a victim, alone, can be constitutionally sufficient to sustain a conviction. See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). The prosecution also provided supporting evidence that "Kimmy" was Petitioner's nickname, testimony from Brandy Whitbread that a man named "Cam" took her green Cadillac, evidence that two black men abandoned the green Cadillac at a nearby gas station shortly after the shooting, and evidence that Petitioner was walking in the neighborhood near the gas station and called his girlfriend for a ride that evening.

Additionally, the prosecution presented evidence that Petitioner fled the state and gave false names to the police after the shooting had occurred. Although the Supreme Court has expressed skepticism as to the probative value of flight evidence, Wong Sun v. United States, 371 U.S. 471, 483 n. 10 (1963), it has recognized that such evidence may be relevant to show consciousness of guilt. See Allen v. United States, 164 U.S. 492, 499 (1896) ("Indeed, the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt."); see also Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (suspect's unprovoked flight from police was relevant to issue of reasonable suspicion, because "[h]eadlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."). Under Michigan law, evidence of flight is relevant and admissible to prove consciousness of guilt. People v. Unger, 278 Mich.App. 210, 226, 749 N.W.2d 272 (2008) (citing People v. Goodin, 257 Mich.App. 425, 432, 668 N.W.2d 392 (2003); People v. Coleman, 210 Mich.App. 1, 4, 532 N.W.2d 885 (1995)). In sum, the foregoing evidence, and reasonable inferences therefrom, was sufficient to establish that Petitioner committed the shooting.

Second, as to premeditation and deliberation, the prosecution presented evidence from the medical examiner that the victim suffered seven gunshot wounds to various parts of his body including his torso and abdomen and including one defensive wound to his hand, and the prosecution presented evidence that some of the shots came from different trajectories. The use of a gun supports an inference of the intent to kill, see, e.g., Hudson v. Lafler, 421 F. App'x 619, 626-27 (6th Cir. 2011); Turner, 62 Mich.App. 470, the firing of multiple gunshots, targeting vital organs, and different angles of injury support an inference of premeditation and deliberation, see, e.g., Thomas v. McKee, 571 F. App'x 403, 407 (6th Cir. 2014) (multiple gunshots can establish premeditation and deliberation); Lundberg v. Buchkoe, 338 F.2d 62, 69 (6th Cir. 1964) (premeditation may be logically inferred from wounds to vital parts of the body under Michigan law); Bailey v. Haas, No. 15-CV-12727, 2018 WL 4637334, *8 (E.D. Mich. Sept. 27, 2018) (circumstances of the killing, such as multiple wounds in different areas, can support a finding of premeditation and deliberation); Crawley v. Curtis, 151 F.Supp.2d 878, 888-89 (E.D. Mich. 2001) (multiple gunshots can establish premeditation and deliberation); People v. Coy, 243 Mich.App. 283, 315-16, 620 N.W.2d 888 (2000) (finding premeditation and deliberation, in part, because the victim suffered multiple stab wounds), and defensive wounds can be evidence of premeditation and deliberation, see, e.g., People v. Johnson, 460 Mich. 720, 733, 597 N.W.2d 73 (1999) (defensive wounds can be evidence of premeditation).

Additionally, the prosecution presented circumstantial evidence of premeditation, such as the multiple phone calls between the victim and another person before the shooting and testimony from Petitioner's girlfriend that he subsequently told her that he was leaving to meet "Kimmy," and the phone calls and attempted phone calls between Petitioner and Clarence Cowen, the victim's drug dealing cousin who had fought with the victim a few weeks before the shooting. The foregoing evidence, and reasonable inferences therefrom, was sufficient to show that Petitioner intended to kill the victim, that he had sufficient time to consider his actions at the time of shooting, and that he acted with premeditation and deliberation so as to support his first-degree murder and felony firearm convictions.

Petitioner challenges the jury's credibility determinations and evaluation of the evidence presented at trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve such evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002); see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) ("A federal habeas corpus court faced with a record of historical facts that supports conflicting inferences 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."). The jury's verdict, and the Michigan Court of Appeals' decision affirming that verdict, were reasonable. Habeas relief is not warranted on this claim.

4. Effectiveness of Trial Counsel

Petitioner further asserts that he is entitled to habeas relief because trial counsel was ineffective for failing to object to the prosecutor's repeated use of bad acts evidence, failing to object to repeated references to Petitioner being in custody, failing to object to the introduction of evidence that Petitioner had a probation officer and fingerprint cards, and failing to request a special cautionary instruction on a drug addict witness and perjured testimony.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-prong test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must establish that counsel's deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.

To satisfy the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. There is a strong presumption that trial counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that the challenged actions were sound trial strategy.

As to the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the proceeding. Id. "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is quite limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington, 562 U.S. at 105 (internal and end citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

Petitioner first asserts that trial counsel was ineffective for failing to object to the admission of other bad acts evidence, namely that he had sold crack cocaine to Brandy Whitbread. The Michigan Court of Appeals denied relief on this claim ruling that the evidence was properly admitted under Michigan Rule of Evidence 404(b) because it was used to show how Petitioner came to possess Whitbread's green Cadillac and was not offered as evidence of his bad character, such that trial counsel was not ineffective for failing to object to its admission. Holbrook, 2010 WL 99010 at *6.

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Given the Michigan Court of Appeals' ruling that the evidence was properly admitted under state law, which is binding on federal habeas review, see Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860, Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by counsel's conduct. Counsel cannot be deemed ineffective for failing to make a futile or meritless objection. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) ("Omitting meritless arguments is neither professionally unreasonable nor prejudicial."); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).

Petitioner next asserts that trial counsel was ineffective for failing to object to references that he had been held in custody. The Michigan Court of Appeals denied relief on this claim ruling that testimony that Petitioner was confined in the Oakland County Jail was relevant and properly admitted under state law to show the relationship between Petitioner and Clarence Cowen (where the two men had phone calls shortly before and after the shooting, but Cowen rejected incoming phone calls from the jail after Petitioner was in custody there) in order to provide a potential motive for the shooting, such that trial counsel was not ineffective for failing to object to its admission. Holbrook, 2010 WL 99010 at *6.

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Again, given the Michigan Court of Appeals' ruling that the evidence was properly admitted under state law, which is binding on federal habeas review, see Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860, Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by counsel's conduct. Counsel cannot be deemed ineffective for failing to make a futile or meritless objection. Coley, 706 F.3d at, 752; Steverson, 230 F.3d at 225.

Petitioner next asserts that trial counsel was ineffective for failing to object to testimony that Petitioner had a probation officer and fingerprint cards. The Michigan Court of Appeals denied relief on this claim. The court first found that witness Geoffrey Kaplan's statement that he was a probation officer was isolated and elicited by the trial judge, noted that Kaplan did not say that he was Petitioner's probation officer or discuss his criminal history, and ruled that trial counsel may have reasonably decided not to object to the testimony in order to avoid bringing undue attention to the issue. The court further found that the reference to Petitioner having a fingerprint card did not imply that he had a prior felony conviction because it could have just as likely concerned his current offense and ruled that trial counsel may have reasonably decided not to object to the testimony. Holbrook, 2010 WL 99010 at *7.

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Given that the probation officer and fingerprint card remarks were brief and isolated in nature and that they did not reference Petitioner's criminal history, trial counsel may have decided not to object in order to avoid drawing further attention to those matters. Such a decision was a reasonable trial strategy which will not be second-guessed upon habeas review. See Milner v. Hoffner, No. 16-10127, 2017 WL 24793, *7 (E.D. Mich. Jan. 3, 2017); Hills v. McQuiggin, No. 08-14354, 2012 WL 1079727, *23-24 (E.D. Mich. March 30, 2012)); see also Robins v. Fortner, 698 F.3d 317, 337-38 (6th Cir. 2012) (no ineffectiveness because counsel "may have ... made a tactical choice not to provide curative jury instructions to avoid drawing further attention to the fact that the pictures were mug shots"); Stamps v. Rees, 834 F.2d 1269, 1276 (6th Cir. 1987) (failure to request jury instruction on permissible use of prior convictions evidence did not constitute ineffective assistance "as it is quite evident that ... counsel simply wanted to get past the prior convictions as quickly as possible without bringing undue attention to them").

Lastly, Petitioner asserts that trial counsel was ineffective for failing to request a special cautionary instruction on the consideration of drug addict witness testimony (regarding Brandy Whitbread) and perjured testimony (CJI 2d 3.6 — witness credibility). The Michigan Court of Appeals denied relief on this claim. The court first ruled that the drug addict testimony instruction was not warranted under state law because Brandy Whitbread's testimony was not the only evidence, nor the primary evidence, linking Petitioner to the crime such that trial counsel was not ineffective for failing to request that instruction. The court further ruled that the trial court gave the witness-credibility instruction such that trial counsel was not ineffective. Holbrook, 2010 WL 99010 at *7-8.

The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Given the Michigan Court of Appeals' ruling that the drug addict witness testimony instruction was not required under state law, which is binding on federal habeas review, see Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860, Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by counsel's conduct for failing to request that instruction. Counsel cannot be deemed ineffective for failing to make a futile or meritless request. Coley, 706 F.3d at, 752; Steverson, 230 F.3d at 225. Additionally, given the Michigan Court of Appeals' finding that the witness-credibility instruction was provided at trial, a factual finding which is presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1), and has not been rebutted with clear and convincing evidence, Warren, 161 F.3d at 360-61, Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by counsel's conduct. Petitioner thus fails to establish that trial counsel was ineffective under the Strickland standard. Habeas relief is not warranted on these claims.

B. Collateral Review Claims

Petitioner's remaining claims concern the absence of counsel at an unopposed motion, judicial impartiality based upon referring to the deceased as the "victim" in the jury instructions, the alleged failure to show that the shooting occurred in Oakland County to establish venue, the effectiveness of appellate counsel, the state courts' application of the good cause and actual prejudice requirements, the effectiveness of trial counsel, the conduct of the prosecutor, the trial court's question to the probation officer, and cumulative error. Petitioner first presented the claims to the state courts in his motion for relief from judgment on collateral review. Respondent contends that the claims are barred by procedural default5 and/or that they lack merit.

1. Failure to Exhaust Resulting in Procedural Default

As an initial matter, the Court finds that Petitioner's remaining claims, which were first raised in the state courts on collateral review, have not been fully exhausted in the state courts and are now procedurally defaulted such that they cannot provide a basis for federal habeas relief.6

A prisoner filing a habeas petition under 28 U.S.C. §2254 must first exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners must give the state courts one full fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy this requirement, the claims must be "fairly presented" to the state courts, meaning that the petitioner must have asserted both the factual and legal bases for the claims in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must also be presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). Furthermore, each issue must be presented to both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). While the exhaustion requirement is not jurisdictional, a "strong presumption" exists that a petitioner must exhaust all available state remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.

Petitioner did not properly exhaust his remaining habeas claims in the state courts. While he raised those claims in his motion for relief from judgment before the state trial court and then filed a delayed application for leave to appeal with the Michigan Court of Appeals, he did not timely seek leave to appeal with the Michigan Supreme Court. While the prison mailbox rule applies in criminal appeals filed by prisoners, see Mich. Ct. Rule 7.305(C)(2) (as of March 1, 2010), there are no exceptions to the 56-day time limit for seeking leave to appeal in the Michigan Supreme Court. See Mich. Ct. R. 7.305(C)(2), (5). Petitioner's remaining habeas claims, those first presented on collateral review in the state courts, are therefore unexhausted. Moreover, Petitioner no longer has an available means by which to exhaust those claims since he has already filed a motion for relief from judgment with the state trial court. Any attempt to file a second motion for relief from judgment would be futile. Under Michigan Court Rule 6.502(G)(1), a state criminal defendant is generally permitted to only file one post-conviction motion for relief from judgment. Gadomski v. Renico, 258 F. App'x 781, 783 (6th Cir. 2007); Hudson v. Martin, 68 F.Supp.2d 798, 800 (E.D. Mich. 1999). Petitioner's remaining claims do not fall within the exceptions for filing a second motion, see Mich. Ct. R. 6.508(G)(2) (exceptions include a retroactive change in the law or newly-discovered evidence and waiver of the rule due to a significant possibility of innocence).

Because Petitioner has not fully exhausted his remaining habeas claims in the state courts and no longer has an available remedy by which to do so, those claims are now procedurally defaulted. When a habeas petitioner fails to properly present a claim to the state courts and is barred from pursuing further relief under state law, he or she has procedurally defaulted that claim for purposes of federal habeas review. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009) (citing Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002)).

Federal habeas relief is precluded on claims which have not been presented to the state courts in accordance with the state's procedural rules. Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). To establish cause, a petitioner must establish that some external impediment frustrated his or her ability to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223 (1988).

Petitioner fails to demonstrate cause to excuse this procedural default. Any alleged failings by appellate counsel with regard to his direct appeal do not excuse Petitioner's failure to properly exhaust his claims in the Michigan Supreme Court on collateral review. Moreover, a prisoner's pro se status or lack of knowledge about state court rules does not constitute cause to excuse a procedural default. Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995); Robertson v. Abramajtys, 144 F.Supp.2d 829, 838 (E.D. Mich. 2001). Because Petitioner fails to establish sufficient cause to excuse his procedural default, the Court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).

Lastly, Petitioner fails to demonstrate that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To be credible, a claim of actual innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).

Petitioner makes no such showing. His contention that his claims have merit does not establish his actual innocence and his own self-serving, conclusory assertions of innocence are insufficient to support an actual innocence claim. "A reasonable juror surely could discount [a petitioner's] own testimony in support of his own cause." McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (citing cases). Petitioner fails to show that he is actually innocent. His remaining habeas claims, those first raised on collateral review in the state courts, are thus barred by procedural default and do not warrant federal habeas relief.

2. Procedural Default under Michigan Court Rule 6.508(D)(3)

As noted, Respondent contends that Petitioner's remaining claims, other than the ineffective assistance of appellate counsel claim, are procedurally defaulted based upon Petitioner's failure to raise the claims on direct appeal and the state courts' denial of relief on collateral review pursuant to Michigan Court Rule 6.508(D)(3) because Petitioner failed to establish cause and prejudice to excuse his default or that he is actually innocent. The Court finds that this rationale provides an alternative, and additional reason, that the remaining claims, other than the ineffective assistance of appellate counsel claim, are procedurally defaulted such that they cannot provide a basis for federal habeas relief.

As noted, federal habeas relief may be precluded on a claim that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87; Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The doctrine of procedural default applies when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court ruling is used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).

Petitioner first presented his remaining claims to the state courts in his motion for relief from judgment. The Michigan Court of Appeals rendered the last decision on the claims and denied relief pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom. See Mich. Ct. R. 6.508(D)(3). The Sixth Circuit has held that the form order used by the Michigan Court of Appeals to deny leave to appeal in this case is unexplained because the citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the merits. Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc); see also Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1193-94 (2018) (ruling that, in reviewing the basis for a summary appellate order of affirmance, a habeas court should apply Ylst and "look through" the unexplained order to the last reasoned state court decision). Consequently, under Guilmette, the Court must "look through" the unexplained order of the Michigan Court of Appeals to the state trial court's decision to determine the basis for the denial of state post-conviction relief.

In this case, the state trial court denied relief on procedural grounds by ruling that Petitioner had not shown cause and actual prejudice under Michigan Court Rule 6.508(D)(3) for his failure to raise the claims on direct appeal of his convictions. The state courts thus clearly relied upon a procedural default to deny Petitioner relief on these claims. Accordingly, the claims are procedurally defaulted.

As discussed supra, a state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley, 87 F.3d at 784-85. To establish cause, a petitioner must establish that some external impediment frustrated his or her ability to comply with the state's procedural rule. Murray, 477 U.S. at 488. A petitioner must present a substantial reason to excuse the default. Amadeo, 486 U.S. at 223. Such reasons include interference by officials, attorney error rising to the level of ineffective assistance of counsel, or a showing that the factual or legal basis for a claim was not reasonably available. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

Petitioner asserts ineffective assistance of appellate counsel as cause to excuse this default. In order to establish ineffective assistance of counsel, a petitioner must show "that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining whether counsel's performance was deficient,

Strickland, 466 U.S. at 690. Judicial scrutiny of counsel's performance is thus "highly deferential." Id. at 689. The defense is prejudiced only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

It is well-established that a criminal defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The Supreme Court has explained:

Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). In fact, "the hallmark of effective appellate advocacy" is the "process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail." See Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). As the Supreme Court has explained, "it is difficult" to demonstrate the incompetence of appellate counsel. Smith v. Robbins, 528 U.S. 259, 288 (2000). "Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of appellate counsel be overcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002); see also Robbins, 528 U.S. at 288 (citing a Seventh Circuit case for the same proposition). Appellate counsel may deliver deficient performance and prejudice a defendant by omitting a "dead-bang winner," defined as an issue which was obvious from the trial record and would have resulted in reversal on appeal. Meade v. Lavigne, 265 F.Supp.2d 849, 870 (E.D. Mich. 2003).

In this case, Petitioner fails to show that by omitting the claims presented in his motion for relief from judgment, appellate counsel's performance fell outside the wide range of professionally competent assistance. Appellate counsel raised substantial claims on direct appeal including claims challenging the admission of the victim's statements to police implicating Petitioner in the shooting (the most damaging evidence against Petitioner), the victim's statement to his girlfriend (which placed Petitioner with the victim near the time of the shooting), and the sufficiency of the evidence (which challenged both the identity and intent elements needed to support Petitioner's convictions). None of the defaulted claims are clearly stronger than those raised by counsel nor are they "dead-bang winners." To be sure, Petitioner did not raise the claims on direct appeal himself despite filing his own supplemental brief. See, e.g., Jones v. Palmer, No. 2:13-CV-13864, 2016 WL 98157, *9 (E.D. Mich. Jan. 8, 2016) (petitioner's failure to raise defaulted claims in his supplemental brief on appeal undermines assertion of cause and prejudice to excuse procedural default); Rockwell v. Palmer, 559 F.Supp.2d 817, 834 (W.D. Mich. 2008) (petitioner did not show cause for his failure to raise a defaulted claim on direct appeal where he had filed briefs on his own behalf raising other claims that had not been asserted by his appellate counsel, but offered no explanation for his failure to raise the defaulted claim at the same time).

Moreover, even if appellate counsel erred in some way, Petitioner cannot show that he was prejudiced by appellate counsel's conduct (or demonstrate prejudice to excuse the procedural default) because the defaulted claims lack merit for the reasons discussed by Respondent. See Resp. Ans, pp. 70-109. Appellate counsel cannot be deemed ineffective for failing to raise issues that lack merit. Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013); Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). Petitioner fails to establish that appellate counsel erred and/or that he was prejudiced by counsel's conduct as required by Strickland. He thus fails to establish cause and prejudice to excuse his procedural default.

Lastly, as discussed supra, Petitioner also fails to demonstrate that a fundamental miscarriage of justice occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Murray, 477 U.S. at 479-80. To be credible, such a claim requires a petitioner to provide new, reliable evidence that was not presented at trial. Schlup, 513 U.S. at 324 Moreover, actual innocence means factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 623. Petitioner makes no such showing. His remaining habeas claims, those that were first presented on collateral review in the state courts, other than the ineffective assistance of appellate counsel claim, are thus barred by procedural default, lack merit, and do not warrant habeas relief.

3. Effectiveness of Appellate Counsel

Petitioner also raises an independent claim that appellate counsel was ineffective for failing to raise the foregoing collateral review claims on direct appeal. Respondent contends that this claim lacks merit.

The state trial court denied relief on this claim on collateral review indicating that Petitioner failed to show that appellate counsel was ineffective. Holbrook, No. 07-218017-FC at *4-5. The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts.7 The ineffective assistance of appellate counsel claim, while not itself procedurally defaulted, nonetheless lacks merit. As discussed, Petitioner fails to establish that appellate counsel was ineffective under the Strickland standard as counsel raised significant issues on direct appeal and the defaulted claims are neither clearly stronger than those claims nor "dead-bang winners" as they lack merit. As noted, appellate counsel cannot be deemed ineffective for failing to raise issues that lack merit. Moore, 708 F.3d at 776; Shaneberger, 615 F.3d at 452. Habeas relief is not warranted on this claim.

V. CONCLUSION

Based on the foregoing discussion, the Court concludes that Petitioner is not entitled to federal habeas relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may be issued only if a petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds without addressing the merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the court was correct in its procedural ruling. Id. Having considered the matter, the Court concludes that Petitioner fails to make a substantial showing of the denial of a constitutional right as to his claims and jurists of reason would not find the Court's procedural ruling debatable. Accordingly, the Court DENIES a certificate of appealability.

Lastly, the Court concludes that an appeal from this decision cannot be taken in good faith. Accordingly, the Court also DENIES Petitioner leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a).

IT IS SO ORDERED.