Mattox v. Davis (549 F. Supp. 2d 877, 2008)

OPINION

ROBERT HOLMES BELL, Chief Judge.

This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. (Dkt. No. 2, Pet. for Writ of Habeas Corpus.) The matter was referred to the Magistrate Judge, who issued a Report and Recommendation (“R & R”), recommending that this Court deny the petition. (Dkt. No. 64.) This matter is presently before the Court on Petitioner Todd Samuel Mattox’s objections to the R & R that were filed on August 24, 2007. (Dkt. No. 71.) For the reasons that follow, Petitioner’s objections will be denied and the R & R will be adopted as the opinion of the Court.

This Court reviews de novo those portions of an R & R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The Court may accept, reject, or modify any or all of the Magistrate Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b)(3).

I.

On August 21, 1995, Petitioner shot Michael D. Austin in the face at close range. Between November 4, 1996, and November 8, 1996, Petitioner had a jury trial in Ingham County Circuit Court before Circuit Judge Carolyn Stell. (Dkt. Nos. 32-35, Trial Tr., Vols. I-IV.) On November 8, 1996, the jury returned a guilty verdict on all three counts, assault with intent to commit murder, M.C.L. § 750.83, possession of a firearm during the commission of a felony, M.C.L. § 750.227b, and possession of a firearm by a person convicted of a felony, M.C.L. § 750.224f. (Trial Tr., Vol. IV, 242:19-246:1.) On December 4, 1996, Petitioner was sentenced to twenty-five-to-forty-five years’ imprisonment on the assault with intent to commit murder conviction, a concurrent three-to-five years’ imprisonment on the felon in possession of a firearm conviction, and a consecutive term of two years’ imprisonment on the possession of a firearm during the commission of a felony conviction. (Dkt. No. 36, Sentencing Tr. 10:5-23.)

II.

The Court adopts the Magistrate Judge’s thorough statement of the standard of review applicable under § 2254 to which Petitioner did not object. Petitioner asserts eight objections to the R & R. Petitioner divided his objections using the section headings used by the Magistrate Judge. In light of the number of claims Petitioner asserted in his § 2254 petition and the length of the R & R, the Court will use the same titles for the section headings that were used by the Magistrate Judge.

A. “Sixth Amendment and Due-Process Claims Based on the Trial Court’s Ruling During Closing Argument (Ground I)”

The Magistrate Judge concluded that as to Petitioner’s trial counsel having been “precluded” from arguing that Petitioner’s brother shot Mr. Austin, “the state-court determination that no Sixth Amendment or Fourteenth Amendment Due Process violation occurred easily passes muster under deferential AEDPA standards.” (R & R 36.) Petitioner objects to the Magistrate Judge’s conclusion that Petitioner’s argument was based on a distortion of the record. Petitioner repeats a statement the state court judge made during the closing argument of Petitioner’s trial counsel; however, Petitioner does not offer any explanation of how his argument is not based on a distortion of the record.

Petitioner testified at trial that his brother, Mark Mattox, was the shooter and Petitioner’s trial counsel also made this argument to the jury. However, the state court judge did preclude Petitioner’s trial counsel from stating in his closing argument that Mark Mattox had damaged the steering column of a rental car. (Trial Tr., Vol. IV, 203:4-204:3.) The state court judge made this ruling because there was no evidence in the record to support such a statement. In objecting to the Magistrate Judge’s conclusion Petitioner does not contend that there was any evidence in the record to support the contention that Mark Mattox had damaged the rental car’s steering column. The Michigan Court of Appeals concluded that in light of the absence of evidence in the record, the state trial court had properly exercised its discretion in limiting the closing argument of Petitioner’s trial counsel. (Dkt. No. 38, Michigan v. Mattox, No. 200288, slip. op. at 3-4 (Mich.Ct.App. Dec. 26, 2000).) Other than the interruption to which Petitioner directs the Court and one other instance, which was in response to an objection by the government, the state court judge did not interrupt or otherwise limit the closing argument of Petitioner’s trial counsel. (Trial Tr., Vol. IV, 181:2-210:12 (entire closing argument of Petitioner’s trial counsel); id at 185:11-186:18 (the other interruption)). Applying the AED-PA standard of review, the Court finds that the state court did not err in concluding that no Sixth Amendment or Fourteenth Amendment Due Process violation had occurred. Therefore, Petitioner’s first objection is denied.

B. “Sufficiency of the Evidence Supporting Petitioner’s Felon in Possession Conviction (Ground II)”

The Magistrate Judge concluded that “Petitioner’s stipulation waived his right to challenge the sufficiency of the evidence on stipulated elements of the criminal offense of being a convicted felon who could not lawfully possess a firearm. The decision of the Michigan Court of Appeals on this issue was not contrary to, or an unreasonable application of, Supreme Court holdings.” (R & R 38.) Petitioner’s objection appears to be that the Michigan Court of Appeals in analyzing this issue reached a decision that was contrary to or involved an unreasonable application of clearly established federal law. Petitioner does not identify what clearly established federal law or otherwise explain how the Michigan Court of Appeals’s decision was contrary to or an unreasonable application of clearly established federal law.

“It is well settled that a defendant, by entering into a stipulation, waives his right to assert the government’s duty to present evidence to the jury on the stipulated element.” United States v. Harrison, 204 F.3d 236, 240 (D.C.Cir.2000) (citations omitted). See also United States v. Poulack, 236 F.3d 932, 938 (8th Cir.2001); United States v. Hardin, 139 F.3d 813, 816 (11th Cir.1998); United States v. Branch, 46 F.3d 440, 442 (5th Cir.1995) (per curiam). As to the reading of the stipulation to the jury, Petitioner has not identified any Supreme Court holdings that require as much. As the decision of the Michigan Court of Appeals on this question was not contrary to, or an unreasonable application of, Supreme Court holdings, Petitioner’s second objection is denied.

C. “Jury Instructions (Ground III)”

The Magistrate Judge concluded that Petitioner’s jury instruction claims “are proeedurally defaulted, and that the procedural bar has not been overcome by a showing of cause and prejudice or of actual innocence. Alternatively, I find that petitioner’s claims are meritless and fail to provide a basis for federal habeas corpus relief.” (R & R 46.) Petitioner objects to the Magistrate Judge’s conclusion that his claim is proeedurally defaulted and directs the Court to the Supreme Court’s decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Olano involved plain error review on direct appeal under Federal Rule of Criminal Procedure 52(b). 507 U.S. at 727, 113 S.Ct. 1770. The specific question in Olano was whether the presence of alternate jurors in the jury room during deliberations, which the government had conceded was “plain error,” affected the defendants’ “substantial rights.” Id. at 737. Olano does not address whether Petitioner has shown cause and prejudice or actual innocence to overcome the procedural bar to his jury instruction claim. The other cases Petitioner cites in support of this objection also do not address whether Petitioner has shown cause and prejudice or actual innocence to overcome the procedural bar. As the Petitioner has not set forth any errors in the Magistrate Judge’s analysis of this issue and the Court has found none, Petitioner’s third objection is denied.

D. “Double Jeopardy (Ground IV)”

Petitioner contends that his convictions for possession of a firearm during the commission of a felony, M.C.L. § 750.227b, and possession of a firearm by a person convicted of a felony, M.C.L. § 750.224Í, violate the Double Jeopardy Clause of the Fifth Amendment. The Magistrate Judge concluded that the “state court decision finding no violation of the Double Jeopardy Clause easily passes review under AEDPA standards.” (R & R 50.) Petitioner objects to the Magistrate Judge’s conclusion that these two convictions do not violate the “same elements” test set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The “same elements” test asks “whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911)). Petitioner’s conviction for possession of a firearm during the commission of a felony required proof that petitioner had committed assault with intent to murder. (Trial Tr., Vol. IV, 233:23-234:10 (jury instructions).) Petitioner’s conviction for possession of a firearm by a person convicted of a felony required proof that prior to August 21, 1995, Petitioner had been convicted of a felony. (Id. at 234:11-24 (jury instructions).) Thus, Petitioner’s convictions for possession of a firearm during the commission of a felony and possession of a firearm by a person convicted of a felony comport with the Blockburger “same elements” test as each conviction required proof of an element which the other did not. As Petitioner’s contention about the application of “same elements” test to his conviction is incorrect, Petitioner’s fourth objection is denied.

E. “Jury Selection (Ground V),” “Equal Protection (Ground VII),” and “Cumulative Effect (Ground IX)”

Petitioner next makes a generalized objection that the state courts and the Magistrate Judge did not consider his contentions about jury selection and equal protection to the extent required by due process. “Overly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995), and Howard v. Sec’y of Health and Human Services, 932 F.2d 505, 508-09 (6th Cir.1991)). “ ‘The objections must be clear enough to enable the district court to discern those issues that are disposi-tive and contentious.’ ” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). In making this objection Petitioner has not specified any errors in the R & R. In the absence of any specified error, Petitioner’s fifth objection is denied as a general objection.

F. “Prosecutorial Misconduct (Ground VI)”

The Magistrate Judge concluded that “the state court determination that these alleged instances of prosecutorial misconduct, individually and collectively, did not deprive petitioner of a fundamentally fair trial easily withstands scrutiny under the applicable standards.” (R & R 69.) Petitioner objects to the Magistrate Judge’s conclusion that the prosecutor did not “vouch” for Dawn Bethany in her closing argument. Dawn Bethany was a resident of the apartment complex were Mr. Austin was shot. Ms. Bethany initially testified at trial that the man who had shot Mr. Austin was not present in the courtroom. (Trial Tr., Vol. II, 69:12-22.) Ms. Bethany was later recalled as a witness and she then testified that she saw Petitioner shoot Mr. Austin. (Trial Tr., Vol. Ill, 28:23-30:7.) She also testified that she had initially testified falsely because she feared for the safety of her five-year-old son. (Id. at 28:5-22.) Petitioner contends that it was improper for the prosecutor to attempt to explain the inconsistency between Ms. Bethany’s initial testimony and her testimony when she was recalled. A prosecutor may suggest an explanation for a witness’s inconsistent statements that is based on evidence in the record, United States v. Emuegbunam, 268 F.3d 377, 402-05 (6th Cir.2001), which is what the prosecutor did as to the inconsistent statements of Ms. Bethany. Therefore, Petitioner’s sixth objection is denied.

G. “Ineffective Assistant of Trial Counsel (Ground VIII),” “Ineffective Assistance of Counsel: (A) Failure to Call Sabrina Johnson-Mattox and Tammy Lee as Witnesses; (B) Failure to Object and Move for a Curative Instruction; and (C) Cumulative Effect of Trial Counsel’s Errors (Ground X),” and “Ineffective Assistance of Appellate Counsel (Ground XII)”

Petitioner objects to the Magistrate Judge’s conclusion that Petitioner’s claims of ineffective assistance do not provide a basis for granting Petitioner habeas corpus relief. Petitioner first contends that the Magistrate Judge did not accurately set forth the state court procedural history. Contrary to Petitioner’s contention, the facts he identifies are reflected in the R & R, (R & R 6-30), and the Court finds that the Magistrate Judge accurately set forth the state court procedural history.

Petitioner next contends that he is entitled to an evidentiary hearing pursuant 28 U.S.C. § 2254(e)(2) because he allegedly exercised due diligence in developing the record in state court of his ineffective assistance of counsel claim. In addition to showing due diligence in developing the record in state court, § 2254(e)(2) requires a § 2254 petitioner to show that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” § 2254(e)(2)(B). See also Wilson v. Parker, No. 05-5191, 515 F.3d 682, 702, 2008 U.S.App. LEXIS 1902, at *44-45 (6th Cir. Jan. 29, 2008) (applying § 2254(e)(2)(B)). Petitioner seeks an evidentiary hearing to further develop the facts underlying his ineffective assistance of counsel claims, specifically the decision of Petitioner’s trial counsel not to call Sabrina Johnson-Mat-tox and Tammy Lee as witnesses. The Magistrate Judge addressed trial counsel’s decision not to call Sabrina Johnson-Mat-tox and Tammy Lee. (R & R 84-85.) Petitioner identifies portions of the trial transcript that would support the testimony that Petitioner alleges Sabrina Johnson-Mattox and Tammy Lee would have given. The fact that other testimony would have supported the testimony of Sabrina Johnson-Mattox and Tammy Lee does not render trial counsel ineffective for not calling Sabrina Johnson-Mattox and Tammy Lee because, as set forth by the Magistrate Judge, other independent reasons supported trial counsel’s decision. Assuming arguendo that Petitioner did exercise due diligence, Petitioner has not shown that but for constitutional error, no reasonable factfinder would have found Petitioner guilty of the three offenses. Therefore, Petitioner’s request for an evidentiary hearing and seventh objection are denied.

H. “Alleged Use of Perjured Testimony (Ground XI)”

The Magistrate Judge concluded that the purported inconsistencies in the testimony of Clint Brooks and Dawn Bethany do not “demonstrate the knowing use of perjured testimony by the prosecutor.” (R & R 87.) Petitioner objects to the Magistrate Judge’s statement that “[t]his court does not make credibility determinations on habeas corpus review.” (Id.) Petitioner supports his contention that the prosecutor knowingly used perjured testimony with citations to the trial transcript. Thus both the testimony that Petitioner alleges was perjured and the testimony that Petitioner uses to support that contention were before the jury. Petitioner points to alleged inconsistencies in the testimony of various witnesses, but does not identify any instance in which the Prosecutor knowingly and deliberately used perjured evidence. Moreover, Petitioner identifies no error in the Magistrate Judge’s conclusion that credibility determinations are not properly made on habeas corpus review and the Court finds none. Therefore, Petitioner’s eighth objection is denied.

III.

An order and judgment will be entered consistent with this opinion.

REPORT AND RECOMMENDATION

JOSEPH G. SCOVILLE, United States Magistrate Judge.

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. On November 8, 1996, an Ingham County Circuit Court jury found petitioner guilty of assault with intent to commit murder, Mioh. Comp. Laws § 750.83, possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, and being a felon in possession of a firearm, Mich. Comp. Laws § 750.224L Thereafter, the court sentenced petitioner to 25-to^45 years’ imprisonment on the assault with intent to murder conviction, a concurrent 3-to-5 years’ imprisonment on the felon in possession of a firearm conviction, and a consecutive term of 2 years’ imprisonment on the felony-firearm conviction.

The event giving rise to petitioner’s criminal convictions was the August 21, 1995 shooting of Michael D. Austin. Mr. Austin was shot in the face at close range in front of numerous witnesses. The bullet entered Mr. Austin’s face and severed his spine. Michael Austin was paralyzed from the neck down and unable to breathe on his own for the remaining 12 months of his life. Four eyewitnesses identified petitioner as the man who shot Mr. Austin. Physical evidence found in the abandoned getaway car also connected petitioner to the crimes. Petitioner evaded arrest for an extended period by living under a false identity, but was eventually arrested. At trial, petitioner elected to testify in his own defense. Petitioner was unable to convince the jury that it was a case of mistaken identity, and that his brother, Mark Mattox, had shot Michael Austin.

On February 14, 2005, petitioner filed his federal habeas corpus petition. The petition raises a dozen numbered grounds and includes numerous subsidiary claims:

I. THE TRIAL COURT DENIED PETITIONER A FAIR TRIAL AND INFRINGED ON THE RIGHT TO COUNSEL WHEN IT PRECLUDED DEFENSE COUNSEL FROM ARGUING THAT PETITIONER’S BROTHER WAS THE ASSAILANT[J

II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT PETITIONER AS A FELON IN POSSESSION OF A FIREARM BECAUSE THERE WAS NO PROOF THAT HE WAS PREVIOUSLY CONVICTED OF THE REQUISITE “SPECIFIED FELONY!.]”

III. THE TRIAL COURT’S ERRONEOUS AND CONFLICTING INSTRUCTIONS ON CONTROLLING ISSUES OF LAW REQUIRE A NEW TRIAL, WHERE THE COURT:

A. FAILED TO ADEQUATELY INSTRUCT ON THE ELEMENTS OF ASSAULT WITH INTENT TO MURDER.

B. INSTRUCTED THE JURY THAT THE CASE INVOLVED THE “ALLEGED KILLING” OF MICHAEL AUSTIN.

C. FAILED TO INSTRUCT THE JURY THAT CONSIDERATION OF PETITIONER’S STATUS AS A FELON COULD NOT BE CONSIDERED AS EVIDENCE ON COUNTS I AND II.

D. GAVE THE STANDARD REASONABLE DOUBT INSTRUCTION, THEREBY DILUTING THE PEOPLE’S BURDEN OF PROOF.

IV. PETITIONER’S CONVICTIONS FOR BOTH FELONY FIREARM AND FELON[ 1-IN-POSSES-SION VIOLATE DOUBLE JEOPARDY AND REQUIRE THAT THE CONVICTION FOR THE LESSER OFFENSE BE VACATED.

V. THE TRIAL COURT ERRED IN DENYING PETITIONER’S BAT-SON CHALLENGE TO THE DISMISSAL OF AN AFRICAN-AMERICAN JUROR, WHERE THE PROSECUTOR’S EXPLANATION WAS THAT SHE BELIEVED THAT THE JUROR HAD A COLD AND WAS “INFECTIOUS”.

VI.THE CUMULATIVE EFFECT OF THE PROSECUTOR’S MISCONDUCT DEMANDS REVERSAL WHERE THE PROSECUTOR:

A. ERRONEOUSLY AND REPEATEDLY ELICITED HEARSAY FROM PROSECUTION WITNESSES.

B. PREJUDICIALLY INFRINGED ON PETITIONER’S FIFTH AMENDMENT RIGHTS BY ARGUING THAT IT WAS NOT UNTIL TRIAL THAT HE IDENTIFIED ANOTHER PERSON AS THE ASSAILANT.

C. ERRONEOUSLY ARGUED THAT THE ‘WHEELER DEALER” WAS NOT AN AUTO REPAIR FACILITY, WHEN SHE HAD ELICITED NO EVIDENCE TO SUPPORT THAT CONTENTION.

D. ERRONEOUSLY SUGGESTED •THIS CASE INVOLVED “MURDER” BY ELICITING THAT MICHAEL AUSTIN SUBSEQUENTLY DIED, SHOWING THAT THE INVESTIGATION WAS MADE BY “HOMICIDE” OFFICERS AND USING THE TERM “MURDER” IN QUESTIONING WITNESSES.

E. ERRONEOUSLY AND PREJU-DICIALLY ELICITED EVIDENCE THAT WITNESSES WERE AFRAID ABOUT TESTIFYING AGAINST PETITIONER, OR INTIMIDATED INTO GIVING FALSE TESTIMONY AGAINST HIM.

F. ERRONEOUSLY VOUCHED FOR HER WITNESSES.

G. ERRONEOUSLY APPEALED FOR SYMPATHY FOR MICHAEL AUSTIN, HIS MOTHER, HIS FAMILY AND HIS FRIENDS.

H. ERRONEOUSLY SUGGESTED THAT PETITIONER HAD A DUTY TO PRODUCE HIS WIFE AS A WITNESS.

I. ERRONEOUSLY INTRODUCED OTHER-ACTS EVIDENCE OF PAROLE VIOLATIONS AND TRAFFIC OFFENSES.

J. PREJUDICIALLY IMPLIED PETITIONER’S MARITAL PRIVILEGE SHOULD AFFECT THE JURY’S VERDICT.

K. VIOLATED DISCOVERY REQUIREMENTS BY FIRST PRODUCING INCRIMINI-NATING DOCUMENTS AT THE CLOSE OF THE PEOPLE’S CASE.

VII. THE FELON-IN-POSSESSION STATUTE IS UNCONSTITUTIONAL BECAUSE A DISPROPORTIONATE NUMBER OF THOSE WITH FELONY CONVICTIONS [ARE AFRICAN AMERICAN OR OTHER MINORITIES AND THEREFORE THE STATUTE] VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND THE MICHIGAN CONSTITUTION[ ].

VIII. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE MICHIGAN AND UNITED STATES CONSTITUTIONS WHERE COUNSEL FAILED TO:

A.IMPEACH PROSECUTION WITNESS STACY MEZO WITH PRIOR INCONSISTENT STATEMENTS AT THE PRELIMINARY EXAMINATION WHICH CONTRADICTED HER IN-TRIAL IDENTIFICATION OF PETITIONER.

B. EITHER PRESENT EXPERT TESTIMONY ON IDENTIFICATION OR [] SEEK INSTRUCTIONS BASED ON PEOPLE v. FRANKLIN ANDERSON, WHERE MIS-IDENTIFICATION WAS THE KEY ISSUE.

C. SEEK A LINEUP.

D. MOVE TO SUPPRESS EVIDENCE ILLEGALLY SEIZED IN A WARRANTLESS SEARCH OF THE VEHICLE.

E. MOVE TO SUPPRESS EVIDENCE THAT WAS FRUIT OF PETITIONER’S ILLEGAL ARREST ON AN INVALID ARREST WARRANT.

F. PRESENT WITNESS DEWAYNE DAWSON TO SHOW THAT WITNESS CLINT BROOKS MADE PRIOR INCONSISTENT STATEMENTS THAT THE POLICE WERE PRESSURING HIM TO IDENTIFY PETITIONER AS THE ASSAILANT.

G. MOVE TO SEVER COUNT III, THE FELON-IN-POSSESSION CHARGE, AND IN FAILING TO SEEK INSTRUCTIONS THAT THE JURY COULD ONLY CONSIDER PETITIONER’S FELONY CONVICTION IN DETERMINING GUILT OR INNOCENCE TO COUNT III.

H. IMPEACH KEY EYEWITNESS ANTHONETTE ANTES WITH HER PRIOR FELONY RECORD.

I. OBJECT TO PROSECUTION ARGUMENT THAT THE POLICE DID NOT CONSIDER AN ALTERNATIVE SUSPECT WAS “WORTH LOOKING AT”.

J. OBJECT AND MOVE FOR A CURATIVE INSTRUCTION WHEN THE PROSECUTOR PREJUDICIALLY INFRINGED ON PETITIONER’S FIFTH AMENDMENT RIGHTS BY ARGUING THAT IT WAS NOT UNTIL TRIAL THAT HE IDENTIFIED ANOTHER PERSON AS THE ASSAILANT.

K. PRESENT EVIDENCE AT SENTENCING TO SHOW MICHAEL AUSTIN’S EXTENSIVE CRIMINAL HISTORY OF VIOLENCE.

L. OBJECT TO IMPROPER INSTRUCTIONS.

M. OBJECT TO THE PREJUDICIAL OTHER-ACTS EVIDENCE OF PETITIONER’S ALLEGED PAROLE VIOLATIONS AND DRIVER’S LICENSE SUSPENSION.

IX. THE CUMULATIVE EFFECT OF THE ERRORS JUSTIFY REVERSAL.

X. PETITIONER WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW WHERE TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT OF THE UNITED STATES AND MICHIGAN CONSTITUTIONS.

A.TRIAL COUNSEL FAILED TO CALL EYEWITNESS SABRINA JOHNSON-MATTOX AND RES GESTAE WITNESS TAMMY LEE ON BEHALF OF PETITIONER.

B. TRIAL COUNSEL’S FAILURE TO OBJECT AND MOVE FOR A CURATIVE INSTRUCTION WARNING THE JURY NOT TO CONSIDER THE PROSECUTOR’S IMPROPER STATEMENTS DURING CLOSING CONSTITUTED INEFFECTIVE ASSISTANCE.

C. THE CUMULATIVE EFFECT OF TRIAL COUNSEL’S ERRORS RENDERED HIM CONSTITUTIONALLY INEFFECTIVE AND DENIED PETITIONER A FAIR TRIAL.

XI. THE PETITIONER WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW WHEN THE PROSECUTOR USED PERJUR[ED] TESTIMONY TO GAIN HIS CONVICTION.

XII. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ON HIS APPEAL AS OF RIGHT.

(Petition, Attachment C at 1-34, docket # 1). Respondent’s answer (docket # 23) asserts that all the grounds raised by petitioner are meritless, and that Grounds III and VI are barred by procedural default. Upon review, I find that all the grounds raised by petitioner are meritless, and further find that all petitioner’s Ground III claims are barred by procedural default. For the reasons set forth herein, I recommend that the petition be denied.

Procedural History

1. Trial

Petitioner’s four-day jury trial began on November 4, 1996, and concluded on November 8, 1996, with the jury’s verdict of guilty of assault with intent to commit murder, possession of a firearm during the commission of a felony, and being a felon in possession of a firearm. (TT I-TV, docket #’s 32-35).

On November 4, 1996, the first day of petitioner’s trial, before jury selection, Judge Carolyn Stell discussed the stipulation defense counsel had entered into with the prosecutor relating to the felon-in-possession of a firearm charge against petitioner. Petitioner was represented at trial by Attorney Renee Cooper. Petitioner had multiple prior felony convictions: assault with intent to do great bodily harm less than murder; assault with a dangerous weapon (felonious assault); and carrying a concealed weapon. The stipulation provided that petitioner had been previously convicted of a felony, and that as of the date of the shooting petitioner had not completed all of the conditions of his parole. It is patent that the stipulation ben-efitted petitioner because it kept from the jury any evidence regarding the violent nature of petitioner’s prior felonies. (TT I, 3 — 4).

During the jury selection process Attorney Cooper made a Batson challenge to the prosecutor’s exercise of a peremptory challenge against a potential juror in seat # 10, Mr. Taylor. Catherine Emerson, Assistant Ingham County Prosecuting Attorney, indicated for the record that both the victim and petitioner were both black males, therefore there was no basis for any claim that her challenge to juror # 10 was based on racial differences between the accused and the victim. She also noted that an African-American woman had already been seated on petitioner’s jury. (TT I, 17). Emerson explained her specific reason for exercising a peremptory challenge against Juror # 10 as follows:

My concern with Mr. Taylor — and I often do this — is how do[es] the whole jury mix together? I came up; I approached the bench. It is clear that Juror No. 10, Mr. Taylor, has a miserable cold. He is sniffling and sneezing. I several times turned around and saw him in the back row. He is clearly what I would consider to be infectious.

When he sat down, I noticed the other jurors kind of leaning away from him. When he spoke, he had red eyes. He seemed to have a stuffy head. I was concerned that his health would not get better during the course of the week. I know that he gave us an estimation that perhaps it would or he could probably eke it out anyway, and I also had considerations for all the jurors in the courtroom or in the small jury room for a week with a man who was clearly infectious and had a cold.

I believe that under peremptory challenges, especially — obviously, I have not systematically kicked all the black people off any jury I’ve picked. I’m certainly not doing it in this particular case, and I believe the law allows me the right to exercise my peremptory challenges in that way.

(TT I, 18). Judge Stell, having had the benefit of seeing the objective manifestations of Juror # 10’s health and hearing the prospective juror’s voice and any sniffling and sneezing, found that no Batson violation had occurred:

To establish a prima facie case, a defendant must show that he is a member of a cognizable racial group and he has done so. He must also show that the Prosecutor exercised peremptory challenges to remove from the venire members of the Defendant’s race and that these facts and any other relevant circumstances raise an inference that the Prosecution used that practice to exclude the venireman from the petit jury on account of their race.

Defendant has been unable to do so. As the Prosecutor has pointed out, there is an Afro-American female seated in seat # 11 in addition. So I don’t think that any pattern has been established of using peremptory challenges purely on the basis of race.

Therefore, it’s not necessary for the Prosecutor to come up with a neutral explanation for challenging Juror No. 10, Mr. Taylor. However, she has done so, and I believe that is a racially neutral issue.

With respect to the argument that lots of other jurors weren’t excused that made reasonable answers, I would point out, from the Court’s point of view, that lots of jurors were excused that made reasonable answers, and I don’t infer from any of those excusáis by either attorney that there’s any basis other than good professional judgment as to what constitutes a fair and impartial jury.

The challenge to the venire is denied. (TT 1,19-20).

During petitioner’s trial, the prosecution introduced evidence from four eyewitnesses, Stacy Mezo, Anthonette Adams, Clint Brooks, and Dawn Bethany. All four eyewitnesses identified petitioner as the man who shot Michael Austin in the face on August 21, 1995. The shooting had occurred on a clear day in an outdoor area of the Hickory Woods Apartments located in Lansing, Michigan. Stacy Mezo and Anthonette Adams shared a Hickory Woods apartment. Mezo testified that on the date of the shooting, Sabrina Johnson and Sabrina’s cousin Sylvia “Poochie” Johnson came to Hickory Woods looking for Anthonette Adams. Mezo contacted the police, but Michael Austin, the father of Ms. Mezo’s children, arrived at the apartments before the police. Mezo advised Mr. Austin that Sabrina and Poochie Johnson were trying to cause trouble with Anthonette Adams. Austin purportedly confronted Sabrina and Sylvia Johnson and told them to take their fight elsewhere because there were numerous children around the apartments. The four eyewitnesses described how petitioner then appeared, confronted Mr. Austin, produced a gun, and at arms length, shot Michael Austin in his face. Stacy Mezo saw petitioner and Sabrina Johnson leave the scene together. Witnesses provided the police the license number of the getaway vehicle. The getaway ear was a rental car. The police found the car abandoned in tall grass in a marshy area located roughly a mile from a Lansing business known as the Wheeler Dealer. The steering column of the car had been damaged and its tire jack was missing. The car had been rented from a Detroit Metropolitan Airport location under the name Mark Mattox. Among the evidence police recovered from inside this car was a zippered pouch. The pouch had been located in a pocket on the back of the passenger’s seat. Three items inside the pouch connected petitioner to the getaway car: (1) a fax from Brian Griffiths addressed to petitioner; (2) an “Order of Action” from the Michigan Department of State with petitioner’s name and license number on it; and (3) an August 5, 1995 Mega Movies receipt identifying petitioner as the customer. (TT III, 50-51, docket # 34).

Attorney David Feinberg testified that at approximately 1 p.m. on August 21, 1995, he was contacted by Sylvia “Poochie” Johnson regarding the shooting that Poo-chie and her cousin Sabrina Johnson witnessed earlier that day. (TT III, 103-04, 119, docket # 34). Attorney Feinberg and his partner, Attorney Manvir Grewal, drove to Poochie’s neighborhood and picked her up. Feinberg, Grewal and Sylvia “Poochie” Johnson then proceeded, at Sylvia’s direction, by car towards a Grand River Avenue location near the Capital City Airport. This route took this group directly past the Hickory Woods Apartments where Sylvia had indicated that she had witnessed the shooting. Emergency and police vehicles were still present on the scene. (Id., 71, 106). The group’s initial effort to locate Sabrina Johnson along Grand River Avenue was unsuccessful, but after Sylvia placed a call to her mother, the group met petitioner and Sabrina Johnson outside the Wheeler Dealer on North Grand River Avenue. Attorneys Feinberg and Grewal testified that they had not anticipated picking up anyone other than Sabrina Johnson. (Id. 68, 96, 131). Both attorneys later identified petitioner from a police lineup as the man they had observed with Sabrina Johnson. Attorney Grewal testified that petitioner was emphatic that “Nobody’s talking to Metro,” indicating that Sabrina Johnson would not be talking to the Tri-County Metropolitan Police Squad. (Id., 74). When Attorney Feinberg asked petitioner if he had been at the crime scene, petitioner denied having had any involvement. (Id., 73). Attorney Grewal testified that petitioner was “adamant that he did not want to go back to the crime scene.” (Id., 78). At petitioner’s request, the attorneys then transported petitioner to the North Willow Apartments where petitioner was dropped off. (Id., 113). Feinberg testified that the North Willow Apartments were “not very far” from the Hickory Woods Apartments. (Id., 114). Sabrina Johnson did not leave with petitioner, but instead remained in the car.

The attorneys and Sabrina Johnson and Sylvia “Poochie” Johnson then traveled to the Hickory Woods Apartments. They parked a short distance away from the crime scene. Attorney Feinberg got out of the car, and he walked over and spoke with the officers conducting the investigation. (Id., 115). The two women and Attorney Grewal remained inside the car. Feinberg’s phone bill indicated that he made a total of seven calls during the period from 2:01 p.m. to 2:38 p.m. while Feinberg was at or near the crime scene. (Id., 84). Feinberg was able to discover that the police were looking for a male and the two females who had fled the scene after the shooting. When Attorney Fein-berg returned to the car, Sabrina Johnson indicated that she wanted to go back to the North Willow apartment where petitioner had been dropped off. (Id., 87-88). The attorneys complied with Sabrina’s request. (Id., 88). The attorneys then dropped off Sylvia Johnson at her mother’s house. When interviewed by the police, both attorneys picked petitioner out of a lineup. Both attorneys testified at trial that petitioner was the man they had seen with Sabrina Johnson on August 21, 1995. (Id., 73,110).

Petitioner elected to take the stand in his own defense. (TT PV, 73-170, docket # 35). Petitioner testified that in August of 1995, he was on parole and that he had been staying in his mother’s house in Detroit. (Id., 78-79). Petitioner stated that his parole officer knew of his relationship with Sabrina Johnson. Petitioner claimed that he had an understanding with his parole officer and that he was permitted to go to Lansing and spend nights with Sabrina Johnson at her apartment. (Id., 81).

Petitioner offered testimony to explain the presence of his personal items inside the rental car. Petitioner stated that his brother Mark Mattox had rented the car because Mark’s car had been damaged in a hailstorm. Petitioner testified that on the weekend of August 19, 1995, petitioner, Sabrina Johnson, petitioner’s brother Mark Mattox and Mark’s wife flew from Detroit’s Metropolitan Airport to Atlanta, Georgia. The rental car had been the group’s transportation to the airport from Mark’s house in Westland, Michigan. (TT IV, 85-88). Petitioner testified that in Georgia he married Sabrina Johnson, and that she had changed her name to Sabrina Mattox. (Id., 75-76, 83). Petitioner testified that after they returned to Michigan, Mark gave petitioner and Sabrina a ride back to Lansing in the rental car. Petitioner claimed that all three of them stayed overnight at Sabrina’s apartment. (Id., 89). No testimony other than petitioner’s placed Mark Mattox in the Lansing area on the date of the shooting.

Petitioner testified that on the morning of August 21,1995, at Sabrina’s apartment, he received a call from Sylvia “Poochie” Johnson. (TT IV, 93). Sometime after that, Mark Mattox and Sabrina Johnson left the apartment with apparent plans to go to a local mall to purchase shoes. (Id., 92). They purportedly left petitioner behind at Sabrina’s apartment. (Id., 92-93).

Petitioner testified that he knew he needed transportation to Detroit that day because he had to meet with his parole officer in Detroit before 4:30 p.m. (TT IV, 96). He testified that around noon Sabrina’s father returned with Sabrina’s ear. (Id., 99, 100). Petitioner claimed that he drove Sabrina’s father back to his apartment and dropped him off. (Id., 100). Sabrina Johnson’s father never testified at petitioner’s trial. Petitioner testified that he did not go directly back to the Sabrina’s apartment, but instead petitioner claimed that he went to a Quality Dairy store and purchased some spring water. (Id., 101). Petitioner testified that he arrived back at Sabrina’s apartment at 12:25 p.m., and that a short time later he received a “disturbing” telephone call from Sabrina. (Id., 101-02). Petitioner claimed that based on this conversation with Sabrina, he drove Sabrina’s car to the Wheeler Dealer located on Grand River. (Id., 103-04). Petitioner claimed that he met Sabrina at that location. (Id., 105). Petitioner testified that Sabrina was very agitated. (Id., 105-06). Petitioner stated that when he got out of the car, he left the engine running. (Id., 106). Petitioner claimed that he then encountered his brother, Mark Mattox, who purportedly stated, “I got to get the hell out of here. I have to get the hell out of here.” (Id., 108). Petitioner testified that Mark Mattox then “took off’ in Sabrina’s car leaving petitioner and Sabrina behind. (Id., 108-09). Petitioner offered the following testimony concerning a conversation he claimed to have had with Sabrina:

I said, “Where the f_is you going man,” you know. “Hold on.” And he just skirted off. So I turned and ran towards Sabrina, because she’s still walking. So I go down towards her, and so we kind of like walking. I’m slowing her pace down and I’m trying to calm her down.

I’m asking her like, “Well, what happened, what happened?” She’s like, “He’s a crazy motherf_; he’s a crazy motherf_” You know, and I was like, “Well, what happened? What’s going on?” And she was like, “The crazy motherf_just shot somebody.”

(Id., 109). Petitioner offered testimony that he and Sabrina walked a short distance, then she purportedly stated, “He [Mark] just shot somebody; he just shot somebody.” (Id., 113). Petitioner claimed that he and Sabrina went into an office building with the intent to call someone who could provide petitioner with a ride to Detroit to meet with his parole officer. (Id., 114). Petitioner claimed that he placed a call to Aunt Martha’s house (Sylvia “Pooehie” Johnson’s mother’s house) and spoke with Aunt Martha. (Id., 115-16). Petitioner claimed that after the conclusion of this telephone call, he and Sabrina waited in a reception area for someone to pick them up. (Id., 117-19). After about 10 or 15 minutes, Sabrina went back to make another telephone call. (Id., 118). No witness from the office building appeared or offered any testimony supporting petitioner’s version of events. Petitioner claimed that after the second telephone call, he and Sabrina purportedly went to “a black tar driveway” located on Grand River Avenue where they waited. (Id., 120). Petitioner described being picked up by Attorneys Grewal and Feinberg and Sylvia Johnson (Id., 121-22) and being dropped off at Sabrina’s father’s apartment. (Id., 126). Petitioner testified how he got out of the car, leaving Sabrina and Sylvia with the attorneys. (Id., 127). Petitioner claimed that he called Sabrina’s sister “Neesy” from Sabrina’s father’s apartment and spoke with Nees/s boyfriend “Billy.” Petitioner testified that this Billy picked him up and drove him to Detroit where petitioner claims to have met with his parole officer. (Id., 132-84).

Petitioner testified that after he met with the parole officer he had a meeting with his brother Mark Mattox at their mother’s house, and based on their conversation, petitioner decided to take Sabrina and hide from the police:

Q Okay, What is the decision you make?

A The decision I had to make is I had to — I had to get my wife to come down to Detroit, and I had to keep her like — it was like I had to — this is the flat-out truth. I had to get my wife to come down to Detroit and I had to keep her down there. I had to keep her down that way, down Detroit way for a couple of days.

(TT IV, 138). Petitioner claimed that he and Sabrina stayed a few nights at his mother’s house, followed by more than a week at an aunt’s house. (Id., 139). Petitioner testified that he then obtained “some information,” and based on that information he knew that he “had to get away from [his] people.” Petitioner went into hiding and took Sabrina Johnson with him. (Id., 140). Petitioner concluded his direct testimony with statements to the effect that his brother Mark Mattox had financed petitioner’s transition to a life under a false identity in East Detroit. (Id., 141-42).

Petitioner testified that at the time of his trial, Sabrina was living in Detroit and that she had “recently” visited him. (TT IV, 76-77). On cross-examination petitioner was asked where Sabrina was and why she wasn’t anywhere in the courtroom. (Id., 143-45). The following exchange occurred during cross-examination:

Q All right. On August 21st, 1995, you’re stating that there came a point when you thought your brother shot and perhaps killed somebody and that your wife was somehow involved, correct?

A That he had shot someone and my wife was, yeah, present. She was present at the time.

Q All right. But regardless of that— well, first of all, you then later made a decision to keep your wife quiet and yourself quiet to protect your brother; that’s your testimony.

AI made the decision in my mind that— yeah.

* * * * $ *

Q Yes or no, isn’t it true that you testified that the reason you had her [ ] do that is because you didn’t want her talking to the police?

A Talking to the police? I didn’t — if you want—

Q Is that a yes or a no?

A If you want to take it that way, yes.

(Jd., 149-50, 153). Petitioner was cross-examined about the extensive measures he took to conceal his identity under the alias of Carl Monroe or Carl Moore. {Id., 152-54). When asked where Sylvia “Poochie” Johnson was, petitioner’s response was, “I wish I knew.” (Id., 155).

Petitioner was briefly questioned regarding the absence of evidence that petitioner had obtained permission from his parole officer to travel outside of Michigan for his alleged trip to Georgia. (TT IV, 146). When asked if Sabrina’s apartment was within a block or two of the Sadie Court street address where the shooting had occurred, petitioner provided a non-responsive answer: “I don’t know no Sadie Court Apartments.” (Id., 149). Petitioner denied driving the rental car from the scene of the shooting down a dirt road and into the weeds where the police found it. Petitioner denied using the car’s jack handle to damage the car’s steering column to make it appear as if the car had been stolen. (Id., 160). Petitioner testified as follows in response to cross-examination concerning disposal of the gun and jack handle:

Q. Yes or no, isn’t it true that in that field and walking through that field toward Grand River, you tossed the gun, the nine millimeter gun that you used to shoot Michael Austin and tossed the jack handle?

A I have no knowledge of what you’re talking about, ma’am.

(Id., 160).

The defense rested after the conclusion of petitioner’s testimony. The prosecutor’s closing argument summarized the evidence against petitioner on the three criminal charges. The closing argument was delivered without objection. Defense counsel’s closing argument in response was multi-faceted. Attorney Cooper emphasized the prosecution’s burden of proof and the presumption of petitioner’s innocence. Counsel argued that the prosecutor, “the Government’s lawyer,” had been a little bit deceiving in her closing argument by glossing over various inconsistencies. (TT IV, 181-82, docket # 35). Defense counsel argued the rapidity of events, limited opportunity for witnesses to observe, inconsistencies in the witness statements, and the impeachment of witnesses with their prior statements. Defense counsel emphasized the similarities in petitioner’s and Mark Mattox’s facial features and complexion. Attorney Cooper criticized police procedures because the police failed to focus on petitioner’s brother Mark as a suspect. The court found that defense counsel had stepped beyond the bounds of permissible argument when he had argued, without any supporting record evidence, that it had been and could only have been Mark Mat-tox who had damaged the car’s steering column to make it appear that the car had been stolen.

They’re checking what makes sense to check, the stuff that was ripped off from the steering column that the person who was trying to make this look like, you know, a stolen car, that’s the stuff that they would be touching. So that’s where you check. So they check that; they do not find Todd Mattox’s fingerprints on the stuff that’s ripped off the steering column.

Well, why don’t they stop thinking its him and start listening to Stacy Mezo and cheek for Mark Mattox’s fingerprints on it? We don’t know what the results would have been. Well they get 15 latent prints, some of those are going to be Mark Mattox’s. Why? He’s the guy ripping off the stuff that makes it look like it’s stolen.

THE COURT: Mr. Cooper, I don’t think you can argue that it’s got to be Mark Mattox. That is beyond the scope of closing argument.

MR. COOPER: That it’s got to be Mark — oh, I don’t remember — I don’t even know when I said it or at what point, so ...

THE COURT: Well, what you said was inappropriate, and I’m instructing the jury to disregard it.

(Id., 203-04). Attorney Cooper emphasized that petitioner was not claiming that he had an alibi of being out of town when Michael Austin was shot. Counsel argued that petitioner, although present in Lansing, had not been at the scene of the shooting. From petitioner’s perspective, defense counsel offered the following “bottom line” argument: “You know, the bottom line is, I didn’t do anything. The bottom line is, my brother did.” (Id., 209). Defense counsel attempted to portray petitioner’s decision to move and live with his wife under a fictitious name as an effort by petitioner to keep his brother, the actual shooter, “out of it” and to keep his wife from becoming involved. (Id., 209).

The prosecutor’s rebuttal argument acknowledged that there had been some minor inconsistencies in witness testimony, but she emphasized that witnesses are the people actually present at the crime scene, not necessarily those the prosecution would have chosen if it had the power to do so. The relevant excerpt is set forth verbatim below:

First you’re told, the theme number one, is that mean old Government interference, and they have presented you with bad witnesses and they’ve interfered with the evidence.

First of all, we represent the people of the State of Michigan; it’s not a machine. Part of the people of the State of Michigan include Michael Austin’s mother and family and friends. It certainly includes everyone in the community.

We do not pick and choose our witnesses. The witnesses are the people who are there, and they are the people they are. They are presented to you, and they are given to you in their entirety. You know Clint Brooks has a felony on his record; you know he’s in prison.

You know that Dawn Bethany is afraid and will even commit perjury if she’s afraid. You know that Ricky Reed gets confused quite easily, and you also know that Anthonette Antes was — a bit of a feud with other people.

They were people; they have their faults. We don’t pick and choose them.

(TT IV, 211).

Among other things, the prosecutor’s rebuttal argument addressed defense counsel’s attempt to persuade the jury that the police had been inept when they failed to pursue Mark Mattox as a suspect:

The other thing is the whole business about why not check the prints for Mark Mattox. First of all, you’ve heard from the detectives and all the witnesses, and there wasn’t one piece of evidence that pointed to the fact that Mark Mattox, who lives, and works and has a house in Detroit, had anything to do with this particular scene.

In fact, the Defendant said he and his wife went out of their way not to make that inference. And in fact, the Defendant, who was at the preliminary examination in July and knowing that he’s facing a trial, came and told you today that he’s now claiming it’s his brother.

But the police didn’t compare them to Mark’s prints because there was not one evidence, not one witness, not one anybody who said he was even worth looking at.

* * * * * H*

So there’s nothing, except the Defendant, to point to Mark. And, in fact, I’d like you to think about the fact that Sabrina Johnson, who, according to the Defendant’s version of events, knows where her husband is and speaks to him every day and hasn’t appeared in the courtroom.

MR. COOPER: Judge, that’s not evidence. That can’t be used as evidence. There’s no evidence of that kind that came from the witness stand or any event anywhere.

THE COURT: She can argue that the-Sabrina Johnson-Mattox has not come forward to the police. It is — other than that, she can make no argument.

MR. COOPER: Well, she was doing something other than that.

THE COURT: Rephrase.

MS. EMERSON: Thank you. Didn’t come forward to the police at all, even during this week, not even Monday, not even Tuesday, not even Wednesday.

MR. COOPER: Judge, I object to that. There’s no evidence of the fact that she didn’t. Whoever said that she didn’t?

THE COURT: Overruled.

MS. EMERSON: Actually, with regard to that, I think the record’s clear that the detectives have been looking for her. We’ve asked each and every witness where she is, and the Defendant testified that he was the one that pulled her out of Lansing, her connections under Lansing, lived with her under his assumed named [sic], so that they wouldn’t be found. He says it’s as a motive to protect his brother, but he clearly tells you that he took his wife away to hide her so that her testimony would not be out.

(TT IV, 214-15).

In the context of rebuttal argument, addressing petitioner’s claim that by going underground, petitioner was somehow attempting to protect his wife and his brother who was not a suspect, the prosecutor made a single passing reference to state-law marital privilege:

He says it wasn’t him and he had nothing to do with it. But he went to Detroit, he changed his name to Carl Moore, he got a fake birth certificate from Ohio, a fake driver’s license from Ohio and hauled his wife out of Lansing to live under an assumed name.

Now, what did his brother, Mai’k Mat-tox, do? He kept working at General Motors or Ford and built himself a house. He didn’t go underground, he didn’t hide, he didn’t do anything. He kept on doing what he’s always doing. And we suggest to you that’s because it was the Defendant who committed the crime, and so the Defendant had to go underground and the brother, who did not. So the brother stayed and kept on doing what he was doing.

Also, take a look at what he would be willing to make such a huge change in his life for. According to the Defendant’s statement, all he knows is that he gets a call from his wife-of course there’s husband/wife privilege, so whether or not he’d ever have to testify on that remains to be seen.

MR. COOPER: Objection, your hon- or. That’s not in evidence.

THE COURT: I’m sorry, what’s not in evidence?

MR COOPER: Something about a husband/wife privilege. If you’re going to give them an instruction on the entire privilege, that’s the law that comes from the Court; she can’t give the law.

THE COURT: No, I’m not going to be commenting on the marital privilege. Please proceed without arguing that.

(TT TV, 216-17).

Judge Stell delivered the jury instructions -without objections. (TT IV, 222-39). Shortly after the jury retired to begin its deliberations they sent out a note asking the questions, “Can we clarify what does the Wheeler Dealer have on site? Is it an office or does it have a garage for service? How can we clarify this? Was it in the testimony or closing statements?” After discussing the matter with counsel, Judge Stell instructed the jury as follows: “I would remind you that you have your packet of instructions as to the elements of each of these crimes. We would instruct you to direct your attention to those elements and not to other matters. Please continue your deliberations.” (Id., 242). No objections were made to the judge’s supplemental instructions. Roughly an hour after beginning its deliberations, the jury returned a verdict finding petitioner guilty on all three criminal charges.

Judge Stell sentenced petitioner on December 4, 1996 (Sentencing Transcript (“ST”), docket # 36) and made the following findings before imposing sentence:

Looking first at protection of society, Mr. Mattox was able to argue to the jury very eloquently through his attorney that this was a case of mistaken identity and that it was his brother who committed this act and not he. The jury rejected that defense, although Mr. Mat-tox has every right to continue to maintain his innocence.

The act was exceptionally cold-blooded and gives new meaning to the word senseless violence. To engage in a discussion or argument and, within minutes or seconds, to raise a gun, point it in the victim’s face, have the victim knock the arm down and to raise the arm and shoot the victim in the face is an inexplicable act for a human being to perform.

The jury determined, based on all the evidence, that Todd Mattox was the person who committed that act. That was a determination that was supported by the evidence.

Mr. Mattox argues that since he was on parole for assault with intent to commit great bodily harm and felonious assault at the time of this offense, that he really couldn’t be a threat to society because the Michigan Department of Corrections doesn’t put people on parole if they are a threat to society.

The Michigan Department of Corrections isn’t supposed to put people on parole if they are a threat to society. However, like any other organization composed of people, [it] sometimes make[s] mistakes ....

Based on all of the testimony at trial and the presentence report, the Court believes that Mr. Mattox represents a very significant threat to society. All of his previous convictions involved, if not violence, the potential for violence. Because in addition to the assault with intent to commit great bodily harm and the felonious assault, he has a prior conviction for carrying a concealed weapon.

* * * * * ❖

He committed these new and terrible offenses while he was on parole. It is clear from the testimony at trial that he did everything possible to keep his wife from speaking with the police officers, and he, himself, decided that the best resolution was to assume a false identity and go underground for almost a year, as he has acknowledged.

That, to the Court, does not speak of a person who is regretful for actions that someone else took and wishes to be a contributing member of society.

(ST, 7-9). Judge Stell then sentenced petitioner to 25-to-45 years’ imprisonment on the assault with intent to murder conviction, a concurrent 3-to-5 years’ imprisonment on the felon in possession of a firearm conviction, and a consecutive term of 2 years’ imprisonment on the felony-firearm conviction. (ST, 10).

2. Appellate Proceedings

Attorney Kenneth Birch was initially appointed to represent petitioner in his appeal as of right. Petitioner wrote a letter advising Attorney Birch that petitioner did not want Birch representing him and asking Attorney Birch to withdraw from the representation. Attorney Birch filed a motion to withdraw in accordance with petitioner’s request. After conducting a hearing on the motion, the court granted Birch’s motion to withdraw.

Petitioner retained Attorney Linda Ash-ford to represent him on direct appeal. The issues Attorney Ashford raised on petitioner’s behalf were generally the same issues petitioner now raises in his habeas corpus petition. (Defendant-Appellant’s Brief on Appeal at xv, Statement of Questions Presented, Michigan Court of Appeals record, docket # 38). Attorney Ash-ford filed a 10-page brief in response to the prosecutor’s appellate brief. (Defendant’s Reply to Appellee’s Brief on Appeal, docket # 38).

Attorney Ashford filed various motions on petitioner’s behalf in the Michigan Court of Appeals. Ashford filed a 19-page motion, excluding exhibits, asking the appellate court to remand the matter to the trial court for a Ginthev hearing on 19 claims of ineffective assistance of trial counsel. (Motion for Remand for Ginther hearing, Michigan Court of Appeals record, docket # 38). On December 30, 1997, the Michigan Court of Appeals entered an order denying the remand motion, and the Michigan Supreme Court denied the application for leave to appeal the order. (Both orders are found in the Michigan Supreme Court record, docket # 39). Ashford filed a motion asking the Michigan Court of Appeals to remand the matter to the trial court for a hearing on a motion for a new trial based on newly discovered evidence. This motion claimed that the timing of Clint Brooks’s trial testimony and a post-trial stipulation concerning Brooks’s sentence suggested that, contrary to Brooks’s testimony, Brooks may have had an agreement with the prosecutor’s office. On February 10, 1999, the Michigan Court of Appeals issued an order remanding the matter to the Ingham County Circuit Court. (2/10/1999 Order within the Michigan Court of Appeals record, docket # 38). The remand was limited the issues raised in the motion for remand, and the appellate court retained jurisdiction. On March 23, 1999, Judge Stell conducted a hearing on petitioner’s motion for a new trial, (docket # 37). After hearing witness testimony and the arguments of counsel, the trial court made the following findings: with Mr. Brooks with respect to his testimony in Mr. Mattox’s trial. Ms. Emerson’s I think was the strongest. She was very straight forward and very clear that there had been no deal and that she did not believe anyone in her office would cut such a deal without informing her.

THE COURT: I think everyone is in agreement that if there had been a deal with Mr. Brooks to get a sentence reduction in exchange for his testimony at Mr. Mattox’s trial, that I mean a trial would obviously be granted.

The testimony was consistent from every witness that no deal had been made

The tag upon which Defendant attempts to hang his hat in this motion is Mr. Shabluk’s allocution at the September 13th, 1996 allocution in front of Judge Collette, whom Mr. Brooks was being sentenced. I believe Mr. Sha-bluk’s testimony that he threw these remarks in because Mr. Warren told him that Mr. Brooks had been very cooperative and had testified. Whether or not he should have verified those statements before representing them to [Judge] Collette, may be at issue — to Judge Collette — but I think many attorneys would rely on that kind of representation. If I held every defense attorney who has ever appeared in front of me responsible for the truth and accuracy of statements they made during allo-cution on their clients’ behalf, there would be very few that weren’t in contempt of court. I think Mr. Shabluk was being honest. The prosecutor said hey he’s been real helpful, he’s testified on some cases, so Mr. Shabluk repeats those statements to Mr. Collette — Judge Collette and to no avail whatsoever since Judge Collette wouldn’t even honor the Kilabreu [sic] agreement.

I find no basis in the record that was made today or any reason to believe that there was a secret deal, that there was a raising of expectations or that anything such occurred. The Court denies the

motion and pursuant to the order from the Court of Appeals, a transcript is to be made and filed within 21 days after today and the Court of Appeals retains jurisdiction as y