Torrez v. McKee (601 F. Supp. 2d 920, 2009)

ORDER AND JUDGMENT APPROVING REPORT AND RECOMMENDATION

ROBERT J. JONKER, District Judge.

This matter is before the Court on the Magistrate Judge’s Report and Recommendation (docket # 37) recommending denial of the habeas petition in this case. The Report is a careful and exhaustive analysis of each of Petitioner’s nine grounds for relief. Petitioner filed timely objections to the Report on each issue (docket # 38). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge ... has a duty to reject the magistrate judge’s recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRight, Miller, & Marcus, Federal PractiCE AND Procedure § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:

The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed R. Civ. P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). After de novo review, the Court rejects Petitioner’s objections and finds that the Magistrate Judge’s Report was legally and factually correct.

The underlying case involved a bar fight in which Petitioner shot two bouncers outside the bar entrance. The Report details the trial evidence. The jury found Petitioner guilty of assault with intent to murder; assault with intent to do great bodily harm less than murder; and possession of a firearm during commission of a felony.

Issue I: Rex Bell Incident

Petitioner first argues he is entitled to habeas relief because the trial court rejected his offer of proof regarding an incident in which his friend, Rex Bell, died after being subdued by bouncers. The event occurred several years before the one at issue here. It was at a different bar and involved different bouncers. The trial court excluded the evidence as more prejudicial (by potential for confusion) than probative. The Magistrate Judge here rejected Petitioner’s habeas claim both for unexcused procedural default and on the merits.

Petitioner’s objection relies heavily on Abela v. Martin, 380 F.3d 915 (6th Cir.2004), in which the Court found on the unique procedural facts of that case that the Michigan Supreme Court’s simple recital of M.C.R. 6.508(D) in a form order denying leave was insufficient to invoke the procedural bar rule. In Abela, the Michigan Court of Appeals had rejected the post-judgment motion “for lack of merit in the grounds presented,” suggesting a merits based decision rather than a procedural bar. Here, both the Michigan Court of Appeals and the Michigan Supreme Court invoked the procedural bar of M.C.R. 6.508(D) in rejecting Petitioner’s post-conviction motion, and neither court suggested a merits based consideration of any kind. This makes the case more akin to Ivory v. Jackson, 509 F.3d 284 (6th Cir.2007), which distinguished Abela and applied earlier Sixth Circuit precedent enforcing the M.C.R. 2.508(D) procedural bar in rejecting habeas relief. See Simpson v. Jones, 238 F.3d 399 (6th Cir.2000); Burroughs v. Makowski, 282 F.3d 410 (6th Cir.2002).

Even if the claim were not barred by an unexcused procedural default, Petitioner could not succeed on the merits. The constitutional right to present a defense does not automatically entitle a person to present whatever evidence he or she likes. The trial court here carefully assessed potential probative value, weighed the risk of prejudice and confusion and decided for entirely justifiable reasons to exclude the testimony. Petitioner was still allowed to present other evidence of his concern for his brother’s welfare. His counsel argued the point under appropriate instructions on the intent element of the crime charged. There was nothing arbitrary or disproportionate in the trial judge’s application of the rules of evidence to warrant constitutional relief under United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

Issue II: Defense Witness in Handcuffs

Petitioner’s brother testified at trial as a defense witness. He was in custody at the time for an unrelated matter. The trial court had the brother testify in jail clothing and handcuffs. Petitioner says this prejudiced the defense, presumably as a matter of Fourteenth Amendment due process. The Magistrate rejected this ground on the merits without expressly deciding the procedural default issue. Petitioner’s objections are unpersuasive.

As a threshold matter, Petitioner is likely procedurally defaulted by failing to invoke any federal constitutional ground before his collateral attack. The Michigan Court of Appeals and Michigan Supreme Court properly invoked the procedural bar of M.C.R. 2.508(D), and Petitioner cannot establish cause excusing the default. Petitioner’s argument that appellate counsel’s failure to include federal citations is automatically enough to excuse procedural bar would effectively eliminate the procedural bar whenever appellate counsel chose, for whatever reason, to focus their appellate argument on state grounds only. Indeed, in this case, the Michigan Court of Appeals agreed with Petitioner that the presentation of the defense witness in handcuffs, violated state law, in the absence of any showing of need to restrain to maintain order, though the court found the error harmless on this record.

But more substantively, Petitioner’s claim fails on the merits because the state court judge’s decision to keep a defense witness in jail clothes and handcuffs does not amount to constitutional error warranting habeas relief. The Supreme Court of the United States has not clearly established a constitutional right to have witnesses presented without restraints and in street clothes. The Supreme Court has, of course, established this rule for criminal defendants themselves based principally on the constitutional presumption of innocence. But to say an accused has the right at trial, or even that a convicted person has this right during the sentencing phase of a capital case, Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), says little, if anything about the presentation of a non-party witness for either side. Petitioner has not identified any Supreme Court decision extending the constitutional rule to any person other than a criminal defendant. Accordingly, there is no basis for habeas relief.

Issue III: Impeaching the Jury Verdict

Petitioner’s objection to the Magistrate Judge’s conclusion on this issue breaks no new ground. Once again, the issue appears procedurally defaulted, but it is not necessary to rest on that because the claim has no merit as a constitutional basis for habeas relief. The record discloses no external influences whatsoever brought to bear on the jury process. At most, the record suggests vigorous debate within the jury among the jurors. The law has long refused to probe into the particulars of the internal process of the jury. See Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).

Issue IV: Ineffective Plea Bargain Assistance

The Magistrate Judge rejected this asserted ground for relief both for procedural default and for failure to comply with the strict requirements of AEDPA requiring development of a factual record in the state court. 28 U.S.C. § 2254(e)(2). Petitioner’s objections do not address the AEDPA analysis, and do not attempt to argue that one of the AEDPA’s statutory exceptions apply. The Court recognizes that the AEDPA has limited potential ha-beas relief in several significant ways, and this is one of those ways. But that is not a reason for this Court to ignore its requirements. Accordingly, because Petitioner did not develop the factual basis for his claim in state court, as required by AED-PA, he cannot obtain habeas relief on this ground, even assuming that Petitioner could establish cause sufficient to excuse the procedural default.

Issue V: Prosecutor’s Question About Gang Affiliation

The Magistrate Judge correctly concluded that the prosecutor’s question to a defense witness about gang affiliation suggested by a tattoo did not infect the proceedings with constitutional error warranting habeas relief. Indeed, it does not appear the question was improper in any way. The prosecutor asked. The witness denied. The Court gave proper instructions regarding what was evidence (the witness’ testimony) and what was not (the questions of the lawyers).

Issue VI: Sufficiency of the Evidence

The Petitioner’s objections here break no new ground. Whether under state law — as Petitioner presented the issue on direct appeal — or under federal law — as Petitioner now argues — the relevant standard is whether a rational trier of fact could find each element of the crime charged, considering the facts in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Assuming the absence of procedural default, Petitioner’s claim fails on the merits because a reasonable jury could easily infer the required specific intent to kill based on the evidence adduced at trial. Both the state court and the Magistrate Judge’s Report summarize the evidence, and the inference permissible from it.

Issues VII-IX

These issues involve claims regarding performance of counsel. Issue VII involves the trial court’s decision not to appoint new counsel; Issue VIII claims of ineffective assistance of trial counsel; and Issue IX, claims of ineffective assistance of appellate counsel. Petitioner’s objections here break no new ground, and essentially reargue the issues presented to the Magistrate Judge. The objections on these issues do not directly confront the analysis of and authority cited by the Magistrate Judge in the closing thirteen pages of the Report. The Court is persuaded upon do novo review that the Magistrate’s analysis of these issues are legally sound and factually correct.

ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge, filed June 9, 2008, is approved and adopted as the opinion of the Court.

IT IS FURTHER ORDERED that the habeas corpus petition is DENIED.

REPORT AND RECOMMENDATION

HUGH W. BRENNEMAN, JR., United States Magistrate Judge.

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner is serving one term of 20 to 45 years and a consecutive term of 2 years, imposed by the Ingham County Circuit Court on April 14, 1998, after a jury convicted Petitioner of assault with intent to commit murder, Mich. Comp. Laws § 750.84, and possession of a firearm during the commission of a felony, Mioh. Comp. Laws § 750.227b. He also was convicted of assault with intent to commit great bodily harm, for which he was resentenced to a term of 4 to 10 years on November 21, 2001, after the Michigan Court of Appeals remanded the matter for resentencing. In his pro se petition, Petitioner raises nine grounds for relief, as follows:

I.PETITIONER’S RIGHT TO PRESENT A DEFENSE WAS IMPROPERLY CURTAILED BY THE TRIAL COURT’S RULINGS EXCLUDING CRITICAL TESTIMONY RELEVANT TO HIS DEFENSE.

II. PETITIONER WAS PREJUDICED WHERE HIS DEFENSE WAS THAT HE WAS PROTECTING HIS BROTHER FROM ATTACK, AND CALLED HIS BROTHER AS A WITNESS, BUT THE JUDGE REQUIRED THE BROTHER TO TESTIFY IN HANDCUFFS AND YELLOW JAIL UNIFORM.

III. PETITIONER WAS DENIED DUE PROCESS WHERE ONE OR MORE JURORS WERE INTIMIDATED AND OUTSIDE INFORMATION WAS USED TO CONVICT.

IV. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL MISLED HIM AND CONCEALED INFORMATION ABOUT A PLEA BARGAIN.

V. THE PROSECUTOR DENIED PETITIONER DUE PROCESS BY SUGGESTING TO THE JURY WITHOUT EVIDENCE THAT A DEFENSE WITNESS WAS A GANG MEMBER.

VI. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT OF ASSAULT WITH INTENT TO MURDER.

VII. THE TRIAL COURT ACTED IMPROPERLY AND ABUSED ITS DISCRETION BY REFUSING TO ALLOW [PETITIONER] TO DISCHARGE HIS APPOINTED ATTORNEY.

VIII. PETITIONER WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

IX. PETITIONER WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL.

Respondent has filed an answer to the petition (docket # 11) stating that the grounds should be denied because they are either procedurally defaulted or have no merit. Upon review and applying the AEDPA standards, I find that all nine grounds are either procedurally defaulted and/or without merit. Accordingly, I recommend that the petition be denied.

Procedural History

A. Trial Court Proceedings

The state prosecution arose from a shooting at the Silver Dollar Saloon in Ingham County. Petitioner, known as both Jose Torrez and Jaime Gonzalez, was charged with three counts of assault with intent to commit murder, one count of assault with intent to do great bodily harm less than murder, and one count of possession of a firearm during the commission of a felony. After a preliminary examination held December 9 and December 12, 1997, Petitioner was bound over on one count of assault with intent to commit murder, one count of assault with intent to do great bodily harm less than murder, and one count of felony firearm. Petitioner was tried before a jury beginning March 3, 1998, and concluding on March 6, 1998.

Before jury selection began, defense counsel represented on the record that he had engaged in extensive discussions with his client on the preceding Friday, at the end of which he understood his client intended to accept a plea agreement and would plead guilty the following Tuesday, the opening day of trial. Petitioner disputed his attorney’s representations, asserting that he had discussed going to trial and that he had requested his attorney file a variety of motions and obtain police reports. Specifically, he asked counsel to file a motion to quash the information and a motion for discovery. Petitioner further complained that he had not received the discovery and had just received a new document the morning of trial. (Tr. I, 4-5.) Counsel responded that the document handed to Petitioner was a newly amended information. The amended information was identical to the information at the time of bindover, with the exception of the additional Count VI, charging Petitioner as a habitual offender. (Tr. I, 8-9.) Defense counsel advised that he had seen all of the discovery in the case and that there was no basis for a motion to quash. (Tr. I, 5-6.) Counsel stated that he had asked his client what authority he had to settle the case and that his client had given him a “bottom line.” Counsel had taken that bottom line to the prosecutor and had believed that he had a plea agreement. As a result, counsel had not prepared for trial over the weekend. Counsel further represented that there had been a complete breakdown in his relationship with his client. According to defense counsel, Petitioner was proceeding to trial against his advice and was asking the court for an adjournment. (Tr. I, 5-6.)

The trial court concluded that Petitioner was attempting to delay the trial and that defense counsel could adequately represent Petitioner. The court therefore denied an adjournment but stated that it would not force the trial forward without some time for preparation and the opportunity to subpoena witnesses. The court concluded, however, that the jury could be picked that day without prejudicing Petitioner. (Tr. I, 10-12.) Accordingly, the jury was picked on Tuesday, May 3, 1998. (Tr. I, 12-93.) Trial continued on Thursday, May 5,1998.

At the time trial was scheduled to continue, defense counsel again advised the court that there had been a breakdown in his relationship with his client. He further represented that his client had since been arraigned in district court on four additional felony counts related to cocaine possession. Counsel requested a short adjournment to address certain new plea discussions and to resolve Petitioner’s renewed interest in pleading guilty. (Tr. II, 100-01.) Counsel also represented that he lacked sufficient information to contact four of the witnesses identified by Petitioner that morning and therefore had not been able to prepare for their testimony. (Tr. II, 102-04.) The court rejected a request for brief adjournment, concluding that an hour delay would not resolve the issues and that Petitioner had failed to act responsibly following the Tuesday adjournment. (Tr. II, 105.)

The prosecution’s first witness, Jason Byrd, testified that he worked a shift as backup to the bartender and bouncer or “floorman” at the Silver Dollar Saloon in Lansing, Michigan from 5:30 p.m. on November 27, 1997 to 3:00 a.m. on November 28, 1997. (Tr. II, 130-32.) Byrd stated that he was 5'11" and weighed about 160 pounds. (Tr. II, 132.) According to Byrd, the bar has only one exit used by clients, located at the front of the bar. In the back, at the far left-hand corner of the bar, is a pool room. The bar also contains a stage. (Tr. II, 133.) The Silver Dollar, which has a capacity of 695 people, had at least 300 people in attendance on the night of November 27, 1997. (Tr. II, 134.) According to Byrd, he was behind the bar when a commotion began in the pool room in the early morning hours of November 28. (Tr. II, 136.) Byrd went toward the commotion and attempted to hold people back. A couple of individuals attempted to get into the middle of the altercation, and another commotion began near Byrd. (Tr. II, 137.) This second altercation involved Byrd, two other bouncers, and three customers. One of those customers was Petitioner. (Tr. II, 138.) Another of the customers began to push Alan (Cryblsky), another bouncer. As the customer got more violent, Cryblsky, Steve (Witzke) and Byrd asked the customer to leave. Witzke and Byrd eventually came over and grabbed the customer by the arms and carried him outside. (Tr. II, 141.) The customer fought and kicked while being removed from the bar. (Tr. II, 144.) According to Byrd, no one tried to kill or hurt the customer during the minute-long altercation or when he was on the street, and no one held him around the neck. (Tr. II, 141, 143, 145, 170.) The customer was inebriated, but appeared to be alright, though he may not have been able to get up; he sat on the ground after being placed there. (Tr. II, 144,170.)

After the customer had been placed on the ground, Byrd stood right next to him. A tall African-American man left the bar and began arguing with Cryblsky and Byrd. The African-American man was loud and angry and swore at Cryblsky and Byrd, asking why his friend had been removed from the bar. (Tr. II, 146-47.) Cryblsky talked to the man, trying to calm him down. Byrd turned back toward the front doors. He saw Petitioner come out of the bar. Petitioner walked up to Byrd and began to push him backwards, causing Byrd to trip over the man on the ground and lose his balance. (Tr. II, 148.) As he was being pushed, Byrd saw Petitioner reach to his left side with his right arm. He became alarmed, believed that Petitioner was reaching for a weapon. (Tr. II, 149.) Byrd grabbed Petitioner, trying to control both of Petitioner’s hands, and tried to pin him against the wall or the window of the bar. (Tr. II, 149-50.) Someone was on Byrd’s left side, but he could not be sure who. (Tr. II, 149.) Petitioner began to slide down from the window, and Byrd began to lose his grip. Byrd heard two loud bangs, which he recognized as gunshots. (Tr. II, 151-52.) Byrd was struck by a bullet on the outside of the left knee. (Tr. II, 152-53.)

After he was shot, Byrd went down on one knee and tried to figure out what had happened and if he had really been shot. He had not yet seen a weapon. (Tr. II, 153.) Byrd lost sight of Petitioner. He subsequently heard four or five more gunshots and saw Steve Witzke, on the ground seven or eight feet to his left, trying to wrestle a small, silver gun from Petitioner’s hand. (Tr. II, 155-60.) He saw Petitioner holding the gun and saw a flash from the end of the barrel. (Tr. II, 158— 59.) Byrd identified the handgun as People’s Exhibit 3. (Tr. II, 159-60.) Steve Witzke had his hand on Petitioner’s arm at the time the shots were fired. (Tr. II, 162.) At some point, Matt Bramitt, another employee, removed the gun from Petitioner’s hand. (Tr. II, 163.) After Bram-itt removed the gun, he walked toward a state trooper’s car that was passing. The officers approached the scene. (Tr. II, 163.) Petitioner and Witzke were still struggling, and Byrd went to help control Petitioner around the head. (Tr. II, 164.) Byrd never heard Petitioner make any statements about saving his friend. (Tr. II, 164.)

Byrd was taken to Sparrow Hospital, where he spent two days. He had surgery to remove the bullet. (Tr. II, 188.) He then used crutches for six weeks and had two weeks of rehabilitation. (Tr. II, 165.) Steve Witzke also was taken to the hospital in the same ambulance. (Tr. II, 166.)

Byrd testified that he did not detect an odor of alcohol from Petitioner and never observed him to be stumbling or out of balance. Byrd was familiar with intoxicated people and did not observe Petitioner presenting intoxicated behaviors. (Tr. II, 166-67.)

Adam Cryblsky testified that he was 5'5" and weighed 185 pounds. At the time of the incident, Cryblsky had worked as a bouncer at the Silver Dollar Saloon in Lansing for two years. On November 27, 1997, Cryblsky started work at 9:30 p.m. (Tr. II, 197-98.) Cryblsky testified that the bar was very busy when he started, with about 300 people in attendance. (Tr. II, 199.) A problem developed in the pool room at the bar in the early morning hours of November 28, 1997, and Cryblsky noticed other bouncers moving quickly toward the area. (Tr. II, 200.) Cryblsky left the stage and moved rapidly toward the commotion. (Tr. II, 201-02.) After he reached the pool room and verified things were under control, another altercation began just outside the pool room. (Tr. II, 202, 223.) According to Cryblsky, two other bouncers became involved with a Hispanic patron. (Tr. II, 202.) The patron began to be violent, pushing and shoving the bouncers as they attempted to escort him out. Cryblsky and the other bouncers grabbed the patron and dragged him out the front door. (Tr. II, 203.) Cryblsky held the individual around the arm and the head, in a reverse half nelson, and pulled him to the door. (Tr. II, 203-05.) It took about 20 seconds to drag the patron, as he was struggling against them. (Tr. II, 204.) The patron was taken to the cement slab in front of the restaurant. (Tr. II, 205.) Cryblsky testified that the patron was very drunk and had passed out shortly before reaching the door. Cryblsky made sure he was breathing and sat him up so that he would not choke if he vomited. (Tr. II, 206.) According to Cryblsky, the bouncers used minimum force, never struck the patron, and the hold used could not have choked the patron. (Tr. II, 206, 225.)

Once the patron had been placed on the ground, an African American customer came out of the bar and asked why they had choked the other man. The bouncers told him that the other patron was fine and that he needed to be taken home. The African American man said nothing more until a second Hispanic man, whom Crybl-sky identified as Petitioner, came out of the bar. (Tr. II, 208-209.) The African American man pointed at Cryblsky and said, “This is the boy that choked your boy, this is the guy that choked your boy.” Cryblsky told both men that the other man was fine but very drunk, and needed to go home. (Tr. II, 209.) At this point, Petitioner began to reach inside his shirt and the belt area of his pants. (Tr. II, 209-10.) Cryblsky moved quickly toward Petitioner, trying to pin his arms. Cryblsky feared that Petitioner had a firearm or a knife. (Tr. II, 210-11.) As the result of his physical contact with Petitioner, Petitioner was pushed up against the wall of the bar between the front door and the window. (Tr. II, 211.) Cryblsky had his head pressed into Petitioner’s ehest/neck area, and was holding him around the waist area, trying to pin both arms. Petitioner was swinging at Cryblsky with his left elbow, and Cryblsky could not see what Petitioner was doing with his right hand. Cryblsky was unaware of another person helping him at that time. (Tr. II, 212-13.)

Cryblsky heard a loud crack or report of a firearm close behind him, to the left. (Tr. II, 213.) When he heard the shot, Cryblsky did not know if he had any other bouncer with him. Because he was afraid of shots from behind, he ran toward the east and around the corner of the building. (Tr. II, 214.) As he was moving, he heard a second shot from about 20 feet away. (Tr. II, 215.) After he rounded the corner, he heard three more reports. (Tr. II, 215.) After no shots were fired for about 20 seconds, Cryblsky returned to the front of the Silver Dollar. (Tr. II, 216.) When he came back, two state troopers and several Silver Dollar employees, including Steven Witzke, Jason Byrd, Matt, and Eric Joslyn, were surrounding Petitioner, who was face first, on the ground. (Tr. II, 217.) He saw a small, silver-plated pistol, which he guessed to be a .22 caliber, lying on the ground, within three to five feet of Petitioner. (Tr. II, 217-18.) Cryblsky identified People’s Exhibit No. 3 as the handgun he saw. (Tr. II, 218.) Cryblsky had no personal knowledge as to whether Petitioner ever pointed the gun at Crybl-sky’s head. (Tr. II, 219-20.) According to Cryblsky, no ambulance was summoned or needed to take care of the patron who had been removed from the bar. (Tr. II, 222.)

Steven Witzke testified that he had been employed at the Silver Dollar for a few weeks before November 27, 1997. He testified he was 5'7" tall and weighed about 150 pounds. (Tr. II, 254.) On the night of the incident, he was scheduled to work from 10:00 p.m. until closing. (Tr. II, 254.) The bar held about 200 to 300 people when he arrived. (Tr. II, 255.) Approximately eight to ten people worked as bouncers or floormen on any given night. (Tr. II, 257.) In the early morning hours, a group of Mexican American men began to argue in the pool room. Witzke was standing near the pool room entrance. (Tr. II, 258.) Shortly before the pool room commotion, Witzke had cut off a man who had been drinking too much. The man, who was with a group including Petitioner, had knocked over a table, and Witzke noticed that someone had vomited on the floor. Witzke offered the man a chair, and the man tipped him. (Tr. II, 259.) When the pool room altercation began, people began moving closer to see what was happening. (Tr. II, 259.) As Witzke was facing the pool room, another altercation began just behind him, involving the man Witzke had cut off. Alan Cryblsky began to drag the man out, with the assistance of Jason Byrd. Witzke then helped Cryblsky and Byrd to carry the struggling man out. (Tr. II, 260.)

Once they got the man outside, they sat him down on the concrete area in front of the bar. The man had passed out, and the bouncers sat him up. (Tr. II, 261.) They checked to make sure he was breathing and not in distress. (Tr. II, 261-63.) A tall, African American man came out of the bar and began to argue with Alan Crybl-sky about the fact that the bouncers had dragged his friend out of the bar. Witzke did not pay a great deal of attention, as he was holding on to the drunk patron to be sure he did not fall over. (Tr. II, 264.) A second man came out of the bar, whom Witzke identified as Petitioner. After less than a minute, Witzke saw pushing and shoving between Petitioner and the other bouncers, leading to Petitioner being pushed toward the east side of the bar, in front of the window. (Tr. II, 266.) He heard two shots. (Tr. II, 268-69.) He saw Cryblsky crouching or kneeling next to someone else. (Tr. II, 292.) Witzke saw Petitioner run over and point a small, silver pistol at Cryblsky’s temple. (Tr. II, 269, 277, 291, 293-94.) Witzke ran over, grabbed Petitioner with both hands by the gun arm, and pulled the gun away from Cryblsky’s head. (Tr. II, 269, 271.) Witz-ke pointed the gun arm up in the air. Petitioner was pushing the gun toward Witzke’s midsection. (Tr. II, 269, 272.) Witzke struggled with Petitioner for a minute-and-a-half to push the gun away from his midsection. (Tr. II, 271.) During that time, Petitioner at no time complained about his Mend. (Tr. II, 271.) As Witzke struggled to push the gun away, Petitioner fired the gun twice, entering Witzke’s wrist and exiting on the upper left side of his forearm. (Tr. II, 273-74.) Witzke then pinned Petitioner’s hands so that he could not bend his arm. Matt Bramitt came to Petitioner’s other side and grabbed Petitioner’s arm. Witzke then noticed Petitioner’s hand was empty. (Tr. II, 274-75.) Witzke asked Bramitt if the gun was down. (Tr. II, 275, 279.) He took one of Petitioner’s arms and pinned it back. (Tr. II, 279.) Jason Byrd came back and grabbed Petitioner around the head. (Tr. II, 279.) Matt Bramitt saw there was a state trooper passing and flagged him down. (Tr. II, 279.) The state troopers approached and took control of Petitioner. (Tr. II, 280.) Witzke identified People’s Exhibit 3 as resembling the gun he saw in Petitioner’s hand. (Tr. II, 277.) According to Witzke, during the entire time Petitioner was outside the bar, Petitioner never complained of the bouncers’ treatment of the other patron who had been removed from the bar. (Tr. II, 281.) He also denied seeing Cryblsky tackle Petitioner or attempt to hold him. (Tr. II, 300.)

Witzke was taken to Sparrow Hospital in an ambulance, where he remained for four or five days. He had immediate surgery, and he returned for follow-up care on four occasions. He also saw a rehabilitation therapist to regain extension and mobility in his hand and arm. (Tr. 283-84.)

Michigan State Police Trooper Jason Williams testified that on the early morning of November 28, 1997, he and his partner, Trooper Belt, were traveling in their cruiser along Michigan Avenue, past the Silver Dollar Saloon and toward East Lansing. (Tr. II, 308-09.) Williams saw what looked like a fight outside the Saloon, and a person appeared to be trying to flag the officers down. The troopers parked in the lot on the east side of the Silver Dollar. They observed several people wresting in front of the front door. As they approached, a man came up to Trooper Belt and introduced himself as the manager of the Silver Dollar. (Tr. II, 314.) He told the officers that Petitioner had shot two of his employees. (Tr. II, 314.) The man handed Trooper Belt what looked like a small handgun. (Tr. II, 310-11.) Trooper Belt put the handgun in his belt. (Tr. II, 312.)

Trooper Williams ran over to the three individuals wrestling on the ground. One man was on the ground and two men were on top of him. (Tr. II, 312-13.) Williams tried to secure Petitioner’s hands with handcuffs, but Petitioner resisted. Williams struck Petitioner in the back of the thigh in the area of the common peri-neal nerve in an effort to distract him from resisting. (Tr. II, 314.) Petitioner continued to resist. (Tr. II, 314.) Williams then used his pepper spray to subdue Petitioner so that he was able to handcuff him. (Tr. II, 315-16.) Because Petitioner continued to try to fight and kick, Williams further restrained him by tying his legs to his hands with a rope in a “Welch hitch.” (Tr. II, 316.) The officers took Petitioner into custody and carried him to the back seat of the vehicle. (Tr. II, 313, 317.) According to Williams, Petitioner did not appear to be drunk at the time of the arrest. (Tr. II, 323-34.)

Trooper Williams identified People’s Exhibit 3 as a .22 caliber long rifle semiautomatic that held a total of 11 rounds. (Tr. II, 317-19.) He testified that the pistol could kill someone. (Tr. II, 319.)

Michigan State Police Trooper Christopher Belt testified that, during the early morning hours of November 28, 1997, he and his partner, Trooper Jason Williams, were on routine patrol when they saw two people running toward them, waving their arms, from the front of the saloon. (Tr. II, 328-29.) They also saw several people rolling around on the ground, in an apparent fight. The troopers parked in a lot on the southeast corner of the building. (Tr. II, 329.) As they were preparing to move toward the fight, they were approached by a man who identified himself as the manager of the Silver Dollar Saloon. The man handed them a small chrome, silver, semiautomatic handgun. (Tr. II, 330.) Belt identified People’s Exhibit 3 as a pistol identical with the one given him at the scene. (Tr. II, 331.) The manager told Belt that two of his bouncers had been shot and that the handgun was the one used in the shooting. Belt placed the gun between his belt and his body. (Tr. II, 331.) He eventually turned the weapon over to Sergeant Tom Wright of the Lansing City Police Department. (Tr. II, 332.)

When Belt was handed the gun, Trooper Williams went to the area of the fight, while Belt returned to the police cruiser to summon the Lansing Police Department and medical assistance. (Tr. II, 333.) After making his call, he went to the area where Williams was attempting to secure Petitioner on the ground. (Tr. II, 334, 337.) Belt assisted Williams in using the Welch hitch to secure Petitioner’s hands to his feet. (Tr. II, 346.) Belt was approached by another individual who told him that there was a second person in the foyer of the saloon whom they were trying to detain. (Tr. II, 334.) Belt went to secure that person, Victor Gonzales. When he reached the foyer, Gonzales was lying on his stomach with his hands underneath him, and a bouncer was kneeling on him. (Tr. II, 334-35.) Because he had been informed that there had been a double shooting and that Victor Gonzales was involved, Belt attempted to handcuff Gonzales in order to secure him for further investigation. (Tr. II, 335.) Gonzales was conscious, but he would not respond to requests to put his hands behind his back. (Tr. II, 335.) After trying techniques to get Gonzales to cooperate, and because he was not certain if Gonzales had a weapon under him, Belt used chemical spray to obtain cooperation. He then handcuffed Gonzales. (Tr. II, 336.)

Belt and Williams brought Petitioner to the jail. (Tr. II, 338, 347-48.) At that time, Petitioner was not stumbling and appeared to have his faculties about him. (Tr. II, 339.) His speech was somewhat altered by the pepper spray. (Tr. II, 339, 351.) Petitioner, however, remained uncooperative. (Tr. II, 339.) He was combative during the search of his person, and Belt and Williams assisted jail personnel to restrain him. (Tr. II, 348-49.)

Lansing Police Detective Dominic Mar-cantonio was one of the officers who responded to Belt’s call on November 28, 1997. (Tr. II, 355.) He arrived at approximately 1:30 a.m. (Tr. II, 355.) Mareanto-nio identified People’s Exhibit 3 as the Jennings .22 caliber pistol he received from Sergeant Wright that night. Mar-cantonio eventually secured the handgun at the Lansing jail. (Tr. II, 356.) Among other things, Marcantonio talked to a number of witnesses and made sure the victims were alright. He placed Jason Byrd in his vehicle until the ambulance arrived. (Tr. II, 358.) Marcantonio attempted unsuccessfully to talk with Petitioner that evening. (Tr. II, 360.)

At the opening of the third day of trial, Petitioner blurted out before the jury that his attorney had told him he was unable to win the case and that he deserved a fair trial and fair defense. (Tr. Ill, 372.) After excusing the jury, the court heard Petitioner’s complaint that his attorney had no interest in the case, that he did not believe he could win, and that he had failed to call witnesses. Defense counsel moved for a mistrial on the basis of Petitioner’s outburst before the jury. (Tr. Ill, 373-75.) The court denied the motion for mistrial and found that Petitioner had raised frivolous complaints. (Tr. III, 376.) Petitioner was given the choice of refraining from further outbursts or being gagged or removed from the courtroom. (Tr. Ill, 376.) Defense counsel renewed his argument that there had been a breakdown in the relationship between defense counsel and Petitioner. (Tr. Ill, 375.) Petitioner made additional representations about counsel’s failure to call witnesses related to the death of Rex Bell at the hands of Sparky’s bouncers, which counsel disputed. (Tr. Ill, 382-83.) The court rejected Petitioner’s objections about the Rex Bell witnesses on the grounds that they were frivolous. (Tr. Ill, 384.) Defense counsel asked the court to inquire, in the face of Petitioner’s position, whether Petitioner wished to represent himself with counsel serving as an advisor. (Tr. Ill, 385.) Petitioner declined to represent himself but again requested a new attorney. (Tr. Ill, 386.) The court denied the motion for change of counsel. (Tr. III, 386.)

The parties stipulated that numerous police and civilian witnesses would not need to be called. (Tr. Ill, 387.) The prosecution then called Dr. Ben Bachulis, the Trauma Director at Sparrow Hospital. (Tr. Ill, 388-89.) Bachulis testified that he was part of the trauma team that treated Jason Byrd and Steve Witzke on November 28, 1997. (Tr. Ill, 390-91.) Ba-chulis testified that each had sustained a single gunshot wound. (Tr. III, 391.) One bullet struck Jason Byrd on the outside lateral aspect of the left knee and lodged within the knee joint. (Tr. Ill, 392.) Dr. Dodd removed the bullet with an arthroscope. (Tr. Ill, 392.) Bachulis testified that the injury was serious and painful, and, had the bullet not been removed promptly, could have lead to lead poisoning from its location in the joint fluid. (Tr. Ill, 393.)

Steven Witzke’s injury was potentially more serious. He immediately developed compartment syndrome, in which the muscle in the injured area swelled within the connective tissue, causing high pressure that inhibited the ability of blood to reach the area. Dr. Dodd took Witzke to surgery immediately to relieve the pressure. (Tr. Ill, 394-95.) The surgery opened the connective tissue to allow the muscle to expand and reduce pressure. (Tr. Ill, 395.) Without treatment, Witzke would have lost his forearm. (Tr. Ill, 396.) Ba-chulis testified that Witzke had powder burns on his arm, indicating that the weapon was very close. (Tr. Ill, 398-99.) Both Byrd and Witzke were given morphine for pain. (Tr. Ill, 397.) Neither injury was immediately life-threatening. (Tr. Ill, 398.)

Lansing Police Officer Lauren DeYoung was a crime scene investigator at the scene. (Tr. Ill, 400-01.) DeYoung testified that she arrived at approximately 1:50 a.m., and that yellow crime scene tape already had been stretched across the area. (Tr. Ill, 402.) She identified a series of photographs in evidence as those she had taken. (Tr. Ill, 402.) Exhibit 1 C showed a bullet hole in the exterior wall of the saloon, just to the side of the window. (Tr. Ill, 403.) DeYoung testified that two cartridge casings were picked up near the front door of the saloon, one on the cement slab, one on the wood planked sidewalk. (Tr. Ill, 405, 408, 410.) DeYoung explained that small cartridge casings could be difficult to find, especially where people have been wrestling on the ground, possibly driving the shell into the ground. (Tr. Ill, 406.) DeYoung looked for additional cartridge casings in the grassy areas to the side of the sidewalk near the front door. She did not find any others. (Tr. Ill, 418.)

Sergeant Thomas Wright of the Lansing Police Department, together with Officer Longoria, were the first unit to respond to Trooper Belt’s call for assistance. When Wright arrived, Belt handed him a Jennings .22 caliber small chrome semi-automatic handgun. (Tr. Ill, 421-22.) After receiving the handgun, Wright checked to make sure it was unloaded. He found no rounds in either the clip or the chamber. (Tr. Ill, 422-23.) The gun had mud on it when it was handed to Wright. (Tr. Ill, 425.) At the close of Wright’s testimony, the prosecution rested. (Tr. Ill, 426.)

Defense counsel moved for directed verdict on the offenses of assault with intent to murder and assault with intent to commit great bodily harm less than murder. (Tr. Ill, 428.) The court denied the motion. (Tr. III, 430-31.) Petitioner made a number of representations to the court concerning new witnesses he had located and his desire to use the police videotape of his lack of cooperation at the jail, which he believed showed that he was intoxicated. (Tr. Ill, 432.) After opportunities for counsel to interview the new witnesses and the videotape, counsel represented that he would be calling two witnesses, neither of whom was raised by Petitioner that morning. Counsel also represented that he would not use the tape, as it showed Petitioner strenuously resisting five or six officers and included no sound that would indicate the state of Petitioner’s intoxication. (Tr. Ill, 433.) The court expressed agreement about the potential prejudice of the tape. (Tr. Ill, 435.) Petitioner, however, insisted the tape be shown, and counsel agreed to show it, over his own recommendation. (Tr. Ill, 436.) Petitioner again sought to present the testimony of a witness relating to the Rex Bell incident, which the court again declined to allow. (Tr. Ill, 437.)

Petitioner’s brother, Victor Gonzales, testified that he was at the house of his cousin, Bonnie Gonzales, during the late afternoon and evening of November 27, 1997, together with Petitioner, Fernando Gonzales, and Johny Buck. (Tr. Ill, 439, 457-59.) Victor testified that they all were drinking at his cousin’s house. Petitioner drank both beer and cognac and had quite a few drinks. (Tr. Ill, 439-40, 463.) Sometime between 10:30 p.m. and midnight, Victor, Petitioner, Johny Buck, Fernando Gonzales and Jerry Gonzales all went to the Silver Dollar Saloon. (Tr. Ill, 440.) Victor testified that he was very intoxicated and did not remember the night very clearly. (Tr. Ill, 440-41.) Nevertheless, Victor was aware that Petitioner also was intoxicated. (Tr. Ill, 441.) When the altercation began in the bar, Victor attempted to go over and break it up. He was grabbed by two of the bouncers. (Tr. Ill, 441.) One of them held him in a head lock, and they escorted him out of the bar. According to Victor, he did not resist. (Tr. Ill, 441-42.) Victor eventually lost consciousness and woke up outside the bar after the police were around. (Tr. Ill, 442.) He did not remember anything else about the incidents of the evening. (Tr. Ill, 443.) Victor acknowledged that he did not have any injuries as the result of being carried out of the bar and that he sought no medical treatment. (Tr. Ill, 469-70.)

At this time, defense counsel attempted to question Victor about his knowledge of Petitioner’s friend, Rex Bell, having died while being handled by bouncers. The prosecution objected, and the court excused the jury to take an offer of proof. (Tr. Ill, 443-44.) Outside the presence of the jury, Victor testified that Petitioner had mentioned his concerns about what had happened to Rex Bell. (Tr. Ill, 444.) Petitioner had told Victor that Rex Bell had died because bouncers had grabbed him and strangled him. (Tr. Ill, 446.) The prosecutor cross-examined Victor, establishing that Rex Bell’s death occurred more than three years before the time of trial. (Tr. Ill, 447.) Defense counsel also called John Buck on the offer of proof. Buck testified that he had known Petitioner over ten years. He was aware that Petitioner and Rex Bell had grown up together. (Tr. Ill, 448-49.) He had heard Petitioner talk about the death and his anger and concerns about Bell’s death. (Tr. Ill, 450.) Buck testified that, on the night of the incident at the Silver Dollar, he was present and became concerned about the manner in which Victor Gonzales was removed from the bar. (Tr. Ill, 450.) He did not know if Petitioner saw Victor being removed, but Buck told Petitioner, “[T]hey are hurting your brother.” (Tr. Ill, 451.) Buck could not testify as to Petitioner’s reaction. (Tr. Ill, 451.) The court heard argument about the admissibility of the testimony about Rex Bell. (Tr. Ill, 451-53.) Following the offer of proof, the court determined that the testimony could be marginally relevant to the reasonableness of Petitioner’s belief that his brother was in danger. Nevertheless, the court held that the minimal relevance was substantially outweighed by the danger of prejudice and confusion. (Tr. Ill, 453-54.)

Before the jury was returned, Petitioner personally objected to the fact that his brother was being forced to testify while handcuffed, which he argued was prejudicial. (Tr. Ill, 454-55.) The court ruled that Victor Gonzales would remain in handcuffs, but an appropriate instruction would be given. (Tr. Ill, 455.) After the instruction was given, Victor Gonzales resumed his testimony, stating that he had no memory of any event of the evening after waking on the sidewalk. (Tr. Ill, 456.)

John Buck testified that he grew up with Petitioner and had known him for more than ten years. (Tr. Ill, 471-72.) Buck testified that, in the early evening of November 27, 1997, he brought a case of beer and a fifth of cognac to the home of Bonnie Gonzales, Petitioner’s cousin, where Buck, Petitioner and Victor Gonzales were part of a group of about ten people. (Tr. Ill, 472-73, 486.) Petitioner drank beer and cognac until about 10:00 p.m., when the group went to the Silver Dollar Saloon. (Tr. Ill, 473-74.) According to Buck, both Victor and Petitioner were intoxicated, though Buck was not. (Tr. Ill, 474-75.) Buck could not say, however, how much Petitioner had been drinking. (Tr. Ill, 486.) They traveled to the bar in multiple vehicles. (Tr. Ill, 474, 486.) When Buck arrived, both Victor and Petitioner were drinking shots of tequila. (Tr. Ill, 474-75.) Sometime after 11:00 p.m., Victor threw up on the table. Eventually, two bouncers carried Victor out of the bar by his neck, belt and arms. (Tr. Ill, 475.) Buck testified that Victor was passed out and that he was concerned that the bouncers had choked him too hard. (Tr. Ill, 475-76.) Buck saw that the bouncers had Victor by the neck and that they continued to restrain him by the neck once they had him outside. (Tr. Ill, 478.) Buck screamed at the bouncers and told them to get off of Victor’s neck. He tried to pull one bouncer off Victor. (Tr. Ill, 478.) When Petitioner came out of the bar, Buck told Petitioner that they would not get off Victor and were continuing to rough him up. (Tr. Ill, 479.) Buck heard scuffling from behind him and heard more than two and perhaps as many as seven gunshots, but his attention was focused on Victor. (Tr. Ill, 479, 480.) On cross-examination, the prosecutor asked Buck, “Do you have a tattoo from a gang?” Buck answered, “That’s not gang colors or tattoos for one, no.” The prosecutor repeated, “You’re sure?” Buck responded, “Positive.” (Tr. Ill, 483.)

At the conclusion of Buck’s testimony, the jury was dismissed briefly. Petitioner repeated his assertion that his attorney was not representing him properly, and he requested a new attorney five additional times. (Tr. Ill, 502-05, 509, 511, 512, 514.) The court denied the motion five more times. (Tr. Ill, 506, 510, 511, 513, 514.) Petitioner expressed his intention to exercise his right to remain silent. (Tr. Ill, 514.) On examination by counsel, Petitioner represented that his decision whether to testify would have been different had he been given a new attorney. (Tr. Ill, 515.) Defense counsel moved for an adjournment to obtain co-counsel so that Petitioner could testify. (Tr. Ill, 515.) The court denied the motion (Tr. Ill, 516.) After further colloquy, the court determined that Petitioner had voluntarily exercised his right to remain silent. (Tr. Ill, 518.)

In accordance with Petitioner’s express request and against the advice of counsel, the defense played the videotape of Petitioner struggling with officers at the jail. (Tr. Ill, 520.) The defense rested. (Tr. Ill, 521.)

The prosecutor recalled Detective Mar-cantonio to testify that the videotape played by defense counsel was recorded at the detention center of the City of Lansing jail. (Tr. Ill, 524.) Marcantonio also testified about the restraint techniques used on Petitioner, as recorded on the videotape. (Tr. Ill, 524-25.) The prosecution concluded rebuttal. (Tr. Ill, 526-27.)

At the conclusion of trial, on March 6, 1998, the jury found Petitioner guilty of all three counts. (Tr. Ill, 581-82, docket # 21.) On April 1, 1998, Petitioner filed a motion for mistrial based on the representations of one juror that she was pressured by the foreperson and other members of the jury to disregard instructions regarding the intent necessary to prove assault with intent to commit murder. After a hearing, the court denied the motion. On April 14, 1998, Petitioner was sentenced to serve terms of 20 to 45 years on the charge of assault with intent to murder, 160 months to 20 years on the charge of assault with intent to do great bodily harm, and two consecutive years on the felony-firearm charge. (Sentencing Transcript, (“S. Tr.”), 10-11, docket # 23.)

B. Direct Appeal

Petitioner appealed as of right to the Michigan Court of Appeals. He filed a notice of appeal on May 5, 1998. On October 14, 1998, he filed a motion for new trial. Petitioner argued that he had been prejudiced by his brother being forced to testify in jail garb and handcuffs. He further argued that the trial court had erred in precluding the introduction of evidence of the death of Rex Bell to demonstrate Petitioner’s state of mind. The court held an evidentiary hearing on November 13,1998, and an order denying the motion was entered on December 1, 1998. (Cir. Ct. Docket Sheet at 6, docket # 17.)

Counsel for Petitioner filed an appellate brief on February 24, 1999, raising the following five issues:

I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COURT’S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE REGARDING HIS KNOWLEDGE OF THE MANNER IN WHICH REX BELL DIED?

II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COURT’S DECISION ALLOWING VICTOR GONZALEZ, DEFENDANT’S BROTHER, TO TESTIFY IN HANDCUFFS AND THE FAILURE OF DEFENDANT’S ATTORNEY TO OBJECT?

III. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON HIS CLAIM THAT HIS ATTORNEY ERRED BY FAILING TO OBJECT TO WITNESS VICTOR GONZALEZ’ APPEARING IN JAIL CLOTHES?

IV. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COERCION OF A JUROR BY THE JURY’S FOREMAN WHO URGED THE JUROR NOT TO FOLLOW THE COURT’S INSTRUCTIONS?

V. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S REQUEST FOR THE APPOINTMENT OF A NEW ATTORNEY OR FOR A CONTINUANCE SO DEFENDANT’S FAMILY COULD RETAIN A SUBSTITUTE ATTORNEY?

(See Def.-Appellant’s Br. on Appeal, docket # 26.) Petitioner filed a pro per supplemental brief raising three issues:

I. SHOULD DEFENDANT’S CONVICTIONS BE REVERSED AS VIOLATIVE OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS, WHERE THE COURT ERRED IN FINDING THE PROSECUTION’S EVIDENCE SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THE INTENT NECESSARY TO COMMIT THE CRIMES CHARGED?

II. SHOULD DEFENDANT’S HA-BITUALIZED SENTENCES BE VACATED AS VIOLATIVE OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS, WHERE THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE PROSECUTION TO FILE AMENDED INFORMA-TIONS TO HABITUALIZE HIS SENTENCES AFTER THE ALLOWED TIME FOR FILING HAD EXPIRED?

III.SHOULD DEFENDANT’S CONVICTIONS BE REVERSED AS VIOLATIVE OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHERE HIS TRIAL COUNSEL COMMITTED SERIOUS ERRORS IN: A) FAILING TO INVESTIGATE AND ASSERT A VIABLE DURESS DEFENSE, B) FAILING TO MOTION FOR DISCOVERY, C) FAILING TO PROPERLY ADVISE CLIENT OF HIS RIGHT TO TESTIFY, AND D) FAILING TO OBJECT TO IMPROPER PROSECUTOR REMARKS?

(Def.-Appellant’s Supp. Br. on App., docket # 26.) Petitioner filed a motion to remand on December 10, 1999, which was denied by the Michigan Court of Appeals on December 26, 2000. (See 12/26/00 Mich. Ct.App. Ord., docket # 26.) By unpublished opinion issued on December 26, 2000, the Michigan Court of Appeals rejected all appellate arguments and affirmed Petitioner’s convictions, but vacated the sentence for assault with intent to commit great bodily harm, remanded for resentencing, and dismissed the supplemental information charging Petitioner as a habitual offender. (See 12/26/00 Mich. Ct.App. Opinion (“MCOA Op.”), 2000 WL 33385257, docket # 26.)

Petitioner filed a proper application for leave to appeal to the Michigan Supreme Court on February 20, 2001. Petitioner initially raised the following seven claims raised before and rejected by the Michigan Court of Appeals:

I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COURT’S REFUSAL TO ALLOW THE DEFENDANT TO PRESENT EVIDENCE REGARDING HIS KNOWLEDGE OF THE MANNER IN[ ] WHICH REX BELL DIED.

II. DID THE TRIAL COURT CREATE A REVERSIBLE ERROR BY ABUSING ITS DISCRETION BY CONVICTING THE DEFENDANT W[H]ERE THERE WAS INSUFFICIENT EVIDENCE SUPPORTING THE CONVICTION AGAINST THE GREAT WEIGHT OF THE EVIDENCE BEYOND A REASONABLE DOUBT TO JUSTIFY A GUILTY VERDICT.

III. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING THE DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COURT’S DECISION ALLOWING VICTOR GONZALEZ, DEFENDANT’S BROTHER TO TESTIFY IN HANDCUFFS AND THE FAILURE OF THE DEFENDANT’S ATTORNEY TO OBJECT.

IV. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING THE DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE COERCION OF A JUROR BY THE JURY’S FOREMAN WHO URGED THE JUROR NOT TO FOLLOW THE COURT’S INSTRUCTIONS.

V. THE COURT ABUSED ITS DISCRETION BY ALLOWING THE PROSECUTION TO FILE A[ ]MENDED INFORMATION CHARGING THE DEFENDANT AS AN HABITUAL OFFENDER AFTER 21 DAYS AFTER THE DEFENDANT’S ARR[A]IGNMENT ON THE INFORMATION CHARGING THE UNDERLYING OFFENSE.

VI. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S REQUEST FOR THE APPOINTMENT OF A NEW ATTORNEY FOR A CONTINUANCE SO THE DEFENDANT’S FAMILY COULD RETAIN A SUBSTITUTE ATTORNEY.

VII. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHICH VIOLATED HIS CONSTITUTIONAL RIGHT.

(Def.-Appellant App. for Lv. to Appeal, docket # 27.) Petitioner subsequently sought leave to add two additional grounds for appeal:

I. THE COURT OF APPEALS ERRED IN REFUSING TO REMAND DEFENDANT’S SENTENCE OF ATTEMPTED MURDER AFTER THE COURT OF APPEALS VACATED THE AMENDED INFORMATION FOR FAILURE OF PROSECUTOR TO FILE INFORMATION WITHIN 21 DAYS CHARGING THE DEFENDANT AS AN HABITUAL OFFENDER.

II. THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON HIS CLAIM THAT HIS ATTORNEY ERRED BY FAILING TO OBJECT TO WITNESS VICTOR GONZALEZ’ APPEARING IN JAIL CLOTH[E]S.

(Def.-Appellant’s Mot. to Add Additional Grounds for Appeal, docket #27.) By order entered September 21, 2001, the Michigan Supreme Court granted Petitioner’s motion to add grounds for appeal but denied his application for leave to appeal because it was not persuaded that the questions presented should be reviewed. (See 9/25/01 Mich. Ord., 465 Mich. 878, 635 N.W.2d 317, docket # 27.)

On November 21, 2001, the trial court on remand held a new sentencing hearing and resentenced Petitioner on the assault with intent to commit great bodily harm less than murder to a term of 4 to 10 years of imprisonment. (Trial Court Docket Sheet, docket # 17.) Petitioner again appealed, seeking remand to address new or newly federalized claims about the validity of his underlying convictions. The prosecutor filed a motion to dismiss the appeal on the grounds that the claims presented in a second appeal following resentencing were limited to errors involving the new sentence. The court of appeals granted the motion to dismiss on November 15, 2002. (11/15/02 MCOA Ord., docket # 28.) Petitioner did not seek leave to appeal to the Michigan Supreme Court.

C. Post-conviction relief

On June 20, 2003, Petitioner filed a motion for relief from judgment in the Ing-ham County Circuit Court, raising ten claims:

I. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL ATTORNEY FAILED TO, A) PROPERLY CONVEY AND REQUEST A SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT MADE BY THE PROSECUTION, B) FAILED TO INTERVIEW DEFENSE WITNESSES, C) FAILED TO PRESENT AND ASSERT AN INTOXICATION DEFENSE, D) FAILED TO SECURE AN EXPERT WITNESS FOR DEFENDANT’S DEFENSE, AND, E) WHERE TRIAL COUNSEL FAILED TO MAKE TIMELY OBJECTIONS TO REPEATED PROSECUTORIAL MISCONDUCT?

II. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHERE THE PROSECUTION ENGAGED IN PROSECU-TORIAL MISCONDUCT BY SUGGESTING TO THE JURY THAT A KEY DEFENSE WITNESS WAS IN A GANG AND HAD GANG TATTOOS?

III. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHERE THE TRIAL COURT REVERSIBLY ERRED BY DENYING THE DEFENSE MOTION FOR A DIRECTED VERDICT ON THE CHARGE OF ASSAULT WITH THE INTENT TO MURDER, WHERE THE PROSECUTION FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE ON THE ESSENTIAL ELEMENT OF THE INTENT TO TAKE A LIFE?

IV. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHERE THE CUMULATIVE EFFECT OF ALL TRIAL COURT ERRORS DENIED DEFENDANT TORREZ A FUNDAMENTALLY FAIR TRIAL?

V. WAS DEFENDANT TORREZ DENIED HIS STATE AND FEDERAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHERE COUNSEL NEGLECTED TO RAISE ON DIRECT REVIEW THE ABOVE CONSTITUTIONAL VIOLATIONS?

VI. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON THE COURT’S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE REGARDING HIS KNOWLEDGE OF THE MANNER IN WHICH REX BELL DIED?

VII. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL WHEN THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON THE COURT’S DECISION ALLOWING VICTOR GONZALEZ, DEFENDANT’S BROTHER, TO TESTIFY IN HANDCUFFS AND A YELLOW COUNTY JAIL JUMPSUIT, AND THE FAILURE OF DEFENDANT’S ATTORNEY TO OBJECT?

VIII. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL, BASED ON HIS CLAIM THAT HIS TRIAL ATTORNEY WAS INEFFECTIVE FOR FAILING TO OBJECT TO DEFENSE WITNESS VICTOR GONZALEZ APPEARING IN JAIL CLOTHES?

IX. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL, BASED ON THE COERCION OF A JUROR NOT TO FOLLOW THE COURT’S INSTRUCTIONS?

X. WAS DEFENDANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT’S REQUEST FOR THE APPOINTMENT OF A NEW TRIAL ATTORNEY, OR FOR A CONTINUANCE SO DEFENDANT’S FAMILY COULD RETAIN A SUBSTITUTE ATTORNEY?

(Dels Mot. for Relief from J., docket # 30.) The trial court denied the motion on November 13, 2003, on the grounds that Petitioner had failed to m