Sanders v. Nagy

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DeJhan Sanders,
Petitioner,
v.
Noah Nagy,
Respondent.
________________________________/
Case No. 5:22-cv-11307
Judith E. Levy
United States District Judge
Mag. Judge Patricia T. Morris
OPINION AND ORDER
DENYING AMENDED PETITION FOR A WRIT OF HABEAS
CORPUS [16], DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA
PAUPERIS
Petitioner DeJhan Sanders is a Michigan prisoner presently
confined at the Bellamy Creek Correctional Facility in Ionia, Michigan.
On June 9, 2022, Petitioner, proceeding pro se, filed a habeas corpus
petition under 28 U.S.C. § 2254. (ECF No. 1.) On October 17, 2023,
Petitioner filed an amended petition. (ECF No. 16.) He challenges his
convictions for two counts of first-degree criminal sexual conduct (“CSC-
I”), Mich. Comp. Laws § 750.520b; first-degree home invasion, Mich.
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Comp. Laws § 750.110a(2); resisting arrest, Mich. Comp. Laws §
750.81d(1); and aggravated stalking, Mich. Comp. Laws § 750.411i(2)(b).
He raises four claims for habeas relief in his Amended Petition. (See ECF
No. 16, PageID.1221–1224). Because the state court’s denial of these
claims was not contrary to, or an unreasonable application of, Supreme
Court precedent, the petition for habeas corpus is denied. The Court also
denies a certificate of appealability, and denies Petitioner leave to
proceed on appeal in forma pauperis.
I. 	Background
Petitioner’s convictions arose from the sexual assault of his former
girlfriend. The Michigan Court of Appeals provided the following
overview of the circumstances leading to his convictions:
Defendant’s convictions resulted from a sexual assault he
committed in December 2018. The victim testified that she
and defendant had been in a relationship for seven years and
had three children in common. She stated that the
relationship became violent, and most of the abuse progressed
in the year before the sexual assaults. In January 2017,
defendant broke into the victim’s home, following which she
obtained a personal protection order. Defendant subsequently
broke into her home multiple times. In July 2018, the victim
called the police as a result of an assault. Defendant testified
that he pleaded guilty to domestic violence. Both defendant
and his probation officer testified that, in November 2018, the
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terms of defendant’s probation order prohibited contact with
the victim.
In November 2018, the victim called the police after defendant
broke in and began hitting her. The victim told a police officer
that she thought she had locked the door, but defendant
appeared in her apartment, yelling and angry. He asked why
she had called the police and began hitting her in the head
and face. The victim identified two photographs of her that
were taken in November 2018. The police officer testified that
a medic examined the victim, but she did not want to go to the
hospital.
When asked about the incident on December 6, 2018, the
victim stated that she was having trouble remembering. The
victim testified, “I remember him coming in—I think he raped
me or something like that. I can’t—.” The victim confirmed
that defendant had put his penis in her vagina, and she
stated, “I think I said no repeatedly.” The victim then
requested a break, which the trial court granted, noting that
the victim looked “pretty sick” and wondering if 911 should be
called. The trial court sent someone to check on the victim
and, in the meantime, took another witness out of order.
When the victim returned to the stand, she could not
remember how defendant broke in, but she remembered
telling defendant that he was not allowed at her house. She
did not invite defendant over, and she asked him to leave
twice.
The victim testified that she remembered being in her
bedroom. She repeatedly told defendant to stop, but he did not
stop. He took her clothes off. When asked how many times it
happened, the victim testified, “Only once. Only once. I’m
sorry. It’s just my mind, my head. I don’t like to remember. I
don’t.” She stated that she sometimes forgot and sometimes
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remembered because it was traumatic, and sometimes it was
“all foggy” and she had trouble remembering what happened.
After using a police report to refresh her memory, the victim
testified: “Yes. My God. Yes, I remember.” She believed that
“it” happened two times. She remembered one incident with
clarity and the second was blurry.
Police officers testified that, because defendant had
previously fled through a window or door, they stayed outside
while another police officer contacted the victim. One of the
officers testified that he saw defendant crawl out a window,
and after the officer told him to stop, defendant ran away. The
officer put defendant on the ground, where he struggled,
screamed expletives, and struck at the officers. He testified
that two other officers helped him arrest defendant, and one
officer’s wrist was hurt as she tried to grab defendant’s legs
while he kicked. The officer testified that, after defendant was
put in the police car, he began hitting his head and stated that
he was suicidal. The officer took defendant to the hospital.
The police officer who interviewed the victim testified that,
after the victim was informed defendant had been arrested,
she appeared a little more comfortable. The interviewing
officer’s body-camera video was played for the jury. In the
video, the victim informed the interviewing officer that
defendant forced his way into her house and would not leave.
The victim stated that defendant pulled her hair and she told
defendant that she did not want to “do anything,” but “he
didn’t take no for an answer.” She stated that defendant made
her go into a room with him, that she did not want to, that
defendant wanted to have intercourse but she did not want to,
and that she told him “no” but did it anyway because
defendant told her he would beat her if she did not go into the
bedroom with him and she did not want to get hurt. The
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victim stated that she tried to leave the bedroom, but
defendant made her go back into the bedroom “to do that
again.” She agreed that she and defendant had sex a second
time, and described that defendant pulled her pants off, held
her down, and forced her to have intercourse with him. The
assault stopped when they heard knocking on the door.
Defendant testified that he was at the victim’s apartment on
December 6, 2018. He stated that the victim had invited him
over to help care for the children. He and the victim had an
argument about a female contact in defendant’s phone, but
the argument did not escalate to physical violence. Defendant
testified that, when he was smoking by a window, he heard
his son tell the victim that the police were there. Defendant
knew that he was not supposed to have contact with the
victim, so he went out the window. According to defendant, as
soon as he turned around, he was tackled and felt like people
were jumping up and down or crawling on him. He could not
breathe. He stated that the police did not tell him to stop.
Defendant denied that he was taken to the hospital because
he was suicidal. He stated that he was taken to the hospital
because he was having trouble breathing. Defendant denied
repeatedly swearing at officers, doctors, and nurses while at
the hospital. On rebuttal, the prosecution offered into
evidence a police officer’s body-camera video that showed
defendant at the hospital, struggling with officers, yelling
obscenities, and stating that he wanted to commit suicide.
The jury found defendant guilty of two counts of CSC-I, one
count of first-degree home invasion, one count of resisting a
police officer, and one count of aggravated stalking.
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People v. Sanders, No. 351798, 2021 WL 2618139, at *1–2 (Mich. Ct. App.
June 24, 2021). Petitioner was convicted by an Ingham County jury of
two counts of CSC-I, one count of first-degree home invasion, one count
of resisting arrest, and one count of aggravated stalking. (See ECF No.
12-13, PageID.883–884.) The trial court sentenced him as a second-
offense habitual offender, Mich. Comp. Laws § 769.10, to serve 240 to 420
months in prison for both counts of CSC-I, 240 to 360 months in prison
for home invasion, 24 to 36 months in prison for resisting arrest, and 45
to 90 months in prison for aggravated stalking. (See ECF No. 12-17,
PageID.980–981.)
On direct appeal to the Michigan Court of Appeals, Petitioner,
through counsel, filed a brief asserting that the prosecution failed to
present sufficient evidence to support two separate counts of CSC-I. (See
ECF No. 12-17, PageID.981–983.) Petitioner also filed a pro per
supplemental brief. (Id. at PageID.1027–1040.) In its review of
Petitioner’s supplemental brief, the court of appeals identified nine
additional claims: (1) verdict was against the great weight of the
evidence, (2) newly discovered evidence, (3) evidentiary issues, (4) juror
bias, (5) ineffective assistance of trial counsel, (6) substitution of counsel,
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(7) DNA evidence, (8) denial of bond, and (9) sentencing errors. Sanders,
2021 WL 2618139, at *3–10. On June 24, 2021, the court of appeals
affirmed Petitioner’s convictions and sentence. See id. at *1, *10.
Petitioner then filed a pro per application for leave to appeal with the
Michigan Supreme Court. (See ECF No. 12-18.) On January 31, 2022, the
Michigan Supreme Court denied Petitioner leave to appeal. People v.
Sanders, 969 N.W.2d 25 (Mich. 2022). Petitioner did not file a petition for
a writ of certiorari with the United States Supreme Court. (ECF No. 1,
PageID.3.)
Petitioner’s initial application to this Court for a writ of habeas
corpus contained eight claims: (1) sufficiency of the evidence, (2) verdict
was against the great weight of the evidence, (3) “evidentiary issues”
based on the trial court’s admission of evidence of Petitioner’s prior
assault on the victim, (4) ineffective assistance of counsel, (5) denial of
bond, (6) suppression of DNA evidence, (7) “error in bindover and denying
[the] motion to quash,” and (8) “credibility of [a] witness.” (ECF No. 1,
PageID.5–15.) Respondent filed an answer to the petition arguing, in
part, that the following claims asserted by Petitioner were unexhausted:
verdict against the great weight of the evidence, evidentiary issues
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related to the admission of Petitioner’s prior assault on the victim, denial
of bond, and credibility of a witness. (See ECF No. 11, PageID.66–69, 74–
75, 97–98.)
Petitioner then filed a motion to stay, seeking to return to the state
courts to exhaust these claims. (ECF No. 14.) On September 21, 2023, the
Court entered an order denying Petitioner’s motion to stay on the basis
that the unexhausted claims were not potentially meritorious. (ECF No.
15, PageID.1209.) The Court then directed Petitioner to file an amended
petition for a writ of habeas corpus that contains only his exhausted
claims or inform the Court that he did not intend to file an amended
petition. (Id. at PageID.1216–1217.)
On October 17, 2023, Petitioner filed an amended petition asserting
the following four claims:
I. 	Sufficiency of the Evidence
II. Ineffective Assistance of Counsel
III. Suppression of DNA Evidence
IV. Improper Bindover
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(ECF No. 16, PageID.1221–1224.) Respondent contends that each claim
lacks merit. (See ECF No. 11, PageID.56–66, 81–96, 103–107, 108–112.)
For the reasons set forth below, the Court agrees.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a federal court’s review of constitutional claims raised by a
state prisoner in a habeas action is limited to claims that were
adjudicated on the merits by the state courts. Stermer v. Warren, 959
F.3d 704, 720 (6th Cir. 2020) (citing 28 U.S.C. § 2254(b)(1)). A habeas
petitioner who asserts claims previously adjudicated by state courts must
show that the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The question under this standard “is not whether a
federal court believes the state court's determination was incorrect but
whether that determination was unreasonable—a substantially higher
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threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams v. Taylor, 529 U.S. 362, 410 (2000)). A state-court decision is
“contrary to” . . . clearly established law if it “applies a rule
that contradicts the governing law set forth in [the Supreme
Court's] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from [the
Supreme Court’s] precedent.”
Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (quoting Williams, 529
U.S. at 405–06; citing Price v. Vincent, 538 U.S. 634, 640 (2003); Early v.
Packer, 537 U.S. 3, 7–8 (2002) (per curiam)).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a
federal habeas court to ‘grant the writ if the state court identifies the
correct governing legal principle from th[e Supreme] Court’s decisions
but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S.
at 413; citing Bell v. Cone, 535 U.S. 685, 694 (2002)). “[T]hat application
must be ‘objectively unreasonable.’” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Williams, 529 U.S. at 409).
The Sixth Circuit has stated that:
[t]o succeed on a habeas petition, a petitioner must show more
than that the state court made an error; he must demonstrate
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that “the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Gaona v. Brown, 68 F.4th 1043, 1047 (6th Cir. 2023) (quoting Harrington
v. Richter, 562 U.S. 86, 103 (2011)). “AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings and demands that
state-court decisions be given the benefit of the doubt.” Renico, 559 U.S.
at 773 (internal citations and quotation marks omitted).
Additionally, a state court’s factual determinations are presumed
to be correct on federal habeas review, and the petitioner “ha[s] the
burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). “[R]eview under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated
the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III. Analysis
A. Sufficiency of the Evidence
Petitioner first argues that the prosecutor presented insufficient
evidence to support a guilty finding of one or two counts of CSC-I. (ECF
No. 16, PageID.1221.) Specifically, he contends that the victim’s
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uncorroborated and inconsistent testimony was insufficient to support
his convictions. (Id.) The Michigan Court of Appeals rejected this
argument, finding a reasonable jury could have concluded from the
evidence that Petitioner sexually assaulted the victim twice. In support,
the court stated, in relevant part, that:
In this case, the victim at one point testified that defendant
assaulted her “[o]nly once.” However, the victim also testified
that she had trouble remembering the incident. After her
memory was refreshed, the victim testified that she
remembered two incidents of sexual assault, one with clarity
and the other blurry. Additionally, in the body-camera video of
the interviewing officer, the victim described that defendant
made her go into the back bedroom to have sex with him. She
did not want to and told defendant “no,” but she had sex with
him because she did not want to be beaten. She stated that she
tried to leave, but defendant made her “do that again.” The
second time, defendant held her down, pulled off her pants,
and forced her to have intercourse.
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could determine that
defendant committed two separate sexual assaults. Although
the victim initially testified that defendant only assaulted her
once, she later testified that he assaulted her two times.
Additionally, in a video taken on the night of the assaults, the
victim described two distinct instances of sexual assault. A
rational trier of fact could resolve the conflicting evidence in
favor of finding that defendant committed two separate sexual
assaults.
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Sanders, 2021 WL 2618139, at *3.
The Michigan Court of Appeals’ denial of relief is neither contrary
to Supreme Court precedent nor an unreasonable application of federal
law or the facts. The Federal Due Process Clause “protects the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency of the
evidence claim is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). “The Jackson standard must be
applied ‘with explicit reference to the substantive elements of the
criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347,
351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
A federal habeas court views this standard through the framework
of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.
2002). Thus, under the AEDPA, challenges to the sufficiency of the
evidence must survive “two layers of deference to groups who might view
facts differently” than a federal court on habeas review—the factfinder
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at trial and the state court on appellate review—as long as their
determinations were reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009). “[I]t is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from the evidence admitted at trial.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). “A reviewing court
does not reweigh the evidence or redetermine the credibility of the
witnesses whose demeanor has been observed by the trial court.”
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing
Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The “mere existence of
sufficient evidence to convict . . . defeats a petitioner’s claim.” Id. at 788–
89.
In this case, the victim testified that she had trouble remembering
the exact details of the assaults. (ECF No. 12-10, PageID.534.) She
explained that she tried to “put it in the back of [her] mind” because she
did not like remembering it. (Id. at PageID.561.) The victim testified that
Petitioner removed her clothes and raped her in her bedroom after she
told him to stop. (Id. at PageID.566–567.) When asked if the sexual
assault happened only one time or multiple times, the victim responded,
“Only once. Only once. I’m sorry. It’s just my mind, my head. I don’t like
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to remember. I don’t.” (Id. at PageID.567.) On cross examination, the
victim again struggled to remember the exact details of what happened
when Petitioner broke into her apartment, often responding, “I don’t
remember.” (See, e.g., id. at PageID.590.) When defense counsel asked if
the sexual assault happened only once, the victim responded, “Yes.” (id.
at PageID.597.)
On redirect, the prosecutor revisited this portion of her testimony
and asked if the victim remembered providing a statement to the police
about two different assaults that occurred on December 6, 2018. (ECF
No. 12-10, PageID.604.) When the victim responded equivocally, the
prosecutor offered the police report to refresh her memory. The victim
reviewed the report and testified, “Yes. My God. Yes, I remember.” (Id.
at PageID.605.) The victim then testified about the second assault,
stating that Petitioner pushed her down on the bed, removed her clothes,
and raped her. (Id. at PageID.606.) Such testimony, if believed, was
sufficient to support Petitioner’s convictions for two counts CSC-I. While
a victim’s testimony alone can be constitutionally sufficient to sustain a
conviction, see Tucker v. Palmer, 541 F.3d 652, 658–59 (6th Cir. 2008)
(citing cases), Officer Hannah Robeson also testified that when
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interviewing the victim on the date of the incident, the victim described
two instances of sexual assault by Petitioner. (ECF No. 12-11,
PageID.676–677.)
Petitioner argues the victim’s testimony was insufficient. Petitioner
maintains that because the victim’s testimony was inconsistent with her
prior testimony and the police report, it shows that her trial testimony
was fabricated. (ECF No. 16, PageID.1221.) However, it is the job of the
fact-finder at trial, not a federal habeas court, to resolve such evidentiary
conflicts. Jackson, 443 U.S. at 326. The jury’s verdict, and the Michigan
Court of Appeals’ decision affirming that verdict, were reasonable, and
the evidence presented at trial, viewed in a light favorable to the
prosecution, established Petitioner’s guilt on two counts CSC-I beyond a
reasonable doubt. Habeas relief is not warranted.
B. Ineffective Assistance of Counsel
Next, Petitioner argues that trial counsel was ineffective for failing
to subpoena witnesses, order an assessment of Petitioner’s competency,
order a polygraph test, and represent Petitioner to his best ability.1 (ECF
1 In his answer, Respondent argued that a portion of this claim related to
counsel’s failure to make objections was procedurally defaulted. Petitioner does not
renew this argument in his Amended Petition. (See ECF No. 16, PageID.1222.)
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No. 16, PageID.1222.) When Petitioner sought review of the ineffective-
assistance-of-counsel issue in the Michigan Court of Appeals, he had not
preserved the issue, in either the trial court or the court of appeals, by
moving for a new trial or for an evidentiary hearing. Sanders, 2021 WL
2618139, at *6. Accordingly, the Michigan Court of Appeals’ reviewed the
ineffective-assistance-of-counsel claim for plain error. Id. at *3, *6.
On habeas corpus review, to prevail on an ineffective assistance of
counsel claim, Petitioner must show that the state court’s denial of his
claim was contrary to, or an unreasonable application of, Strickland v.
Washington, 466 U.S. 668 (1984). See Mejia v. Davis, 906 F.3d 307, 314
(6th Cir. 2018). Strickland established a two-prong test for claims of
ineffective assistance of counsel: a habeas petitioner must show (1) that
counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense. See id.
The standard for obtaining habeas corpus relief is “difficult to
meet.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Metrish v.
Lancaster, 569 U.S. 351, 358 (2013)). In the context of an ineffective
Accordingly, the Court understands this portion of his claim to be abandoned and will
not address it in this opinion.
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assistance of counsel claim under Strickland, the standard is “all the
more difficult” because “[t]he standards created by Strickland and §
2254(d) are both highly deferential and when the two apply in tandem,
review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105 (2011))
(internal citations and quotation marks omitted). “[T]he question is not
whether counsel’s actions were reasonable” but whether “there is any
reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
i. Failure to Subpoena Witnesses
Petitioner argues that trial counsel failed to subpoena witnesses on
his behalf. (ECF No. 16, PageID.1222.) The Michigan Court of Appeals
rejected this argument, concluding that counsel’s refusal to “accept all of
defendant’s suggestions for how to conduct the defense . . . does not
establish either a lack of preparation or indifference to his client.”
Sanders, 2021 WL 2618139, at *6.
The Michigan Court of Appeals’ denial of relief is neither contrary
to Supreme Court precedent nor an unreasonable application of federal
law or the facts. “[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations
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unnecessary.” Strickland, 466 U.S. at 691. The duty to investigate
“includes the obligation to investigate all witnesses who may have
information concerning . . . guilt or innocence.” Towns v. Smith, 395 F.3d
251, 258 (6th Cir. 2005). However, “[i]f counsel does not conduct a
substantial investigation into each of several plausible lines of defense,
assistance may nonetheless be effective.” Strickland, 466 U.S. at 681.
Moreover, “[d]ecisions as to what evidence to present and whether to call
or question witnesses are presumed to be a matter of trial strategy, and
the failure to call witnesses or present other evidence can constitute
ineffective assistance of counsel only when it deprives the defendant of a
substantial defense.” Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th
Cir. 2004). “Because advocacy is an art and not a science, and because
the adversary system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if they are
based on professional judgment.” Strickland, 466 U.S. at 681.
In this case, Petitioner offers no evidence to overcome the
presumption of correctness afforded to the state courts’ factual
determinations. When the petitioner predicates an ineffective-
assistance-of-counsel claim on a failure to call a witness, he must provide
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the substance of the missing witnesses’ potential testimony. See Clark v.
Waller, 490 F.3d 551, 557 (6th Cir. 2007). Petitioner fails to provide the
Court with the names of the witnesses who should have been called, what
they would have testified about, and how that testimony would have
aided his defense. There is simply nothing in the record supporting the
claim that the failure to subpoena witnesses deprived Petitioner of a
substantial defense. Accordingly, he is not entitled to habeas relief on
this claim.
ii. Failure to Order Testing/Full Representation
Next, Petitioner claims that defense counsel was ineffective for
failing to order a competency assessment and polygraph testing and
failing to represent Petitioner to the best of his ability. (ECF No. 16,
PageID.1222.)
With respect to the first portion of the claim, Petitioner did not raise
the competency and polygraph testing argument on direct appeal.
Nevertheless, an unexhausted claim may be adjudicated by a federal
court on habeas review if the unexhausted claim is without merit, such
that addressing the claim would be efficient and would not offend the
interest of federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th
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Cir. 1987). Such is the case here. Petitioner’s argument lacks merit and
is purely conclusory. Not only does Petitioner fail to provide evidentiary
support, but he also fails to explain in any detail how counsel’s actions
were unreasonable and how either a competency or polygraph
examination would have affected the outcome of his trial. Conclusory
allegations of ineffective assistance of counsel, without evidentiary
support, do not provide a basis for habeas relief. See Workman v. Bell,
178 F.3d 759, 771 (6th Cir. 1998) (denying an ineffective assistance of
counsel claim because the petitioner “provide[d] no support for this
claim”). Therefore, he is not entitled to habeas relief.
Petitioner also claims that because counsel expressed that he was
afraid of him, he was unable to provide effective assistance. (ECF No. 16,
PageID.1222.) The Michigan Court of Appeals rejected this argument on
direct appeal stating, in relevant part, that:
At the beginning of trial on the day following defendant’s
statement that counsel had not asked questions that
defendant wished to ask, defense counsel stated that, “in a
word I’m—not to put too fine a point on it, I’m afraid of
[defendant]. He—I’m caught between a rock and a hard place
here, Your Honor.” The following conversation occurred:
THE COURT. Would you like your attorney to continue?
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THE DEFENDANT. Yes, Your Honor.
THE COURT. Can you behave yourself?
THE DEFENDANT. Yes.
THE COURT. Can you talk with him in a polite
manner?
THE DEFENDANT. Yes, Your Honor.
A police deputy testified that he had placed a “stun cuff” on
defendant, which was later explained as being [a] “taser cuff.”
The trial court declined defense counsel’s request to withdraw
on the basis that defendant indicated that he would behave
and that defendant was wearing a stun cuff. When asked
whether he was prepared to represent defendant and proceed,
counsel responded, “That is very much correct, Your Honor.”
To the extent that there was a breakdown in the attorney-
client relationship, defendant caused it. Additionally, after
defendant was restrained, counsel indicated that he was
prepared to proceed and represent defendant. Further, there
is no indication in the record that defendant was actually
prejudiced, or that defense counsel performed deficiently
during the remainder of the trial. We also observe that
defendant had, as will be discussed below, a release on a
personal recognizance bond; and throughout the trial, the
court repeatedly warned defendant that if he caused further
disruptions, the conclusion of his trial would take even longer.
We conclude that the trial courts decision not to appoint
replacement counsel did not fall outside the range of
reasonable and principled outcomes.
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Sanders, 2021 WL 2618139, at *7–8. The Michigan Court of Appeals’
denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. There is nothing in
the record that suggests counsel was ill-prepared for trial or that counsel
was unable to represent Petitioner despite informing the trial court that
counsel feared him. Indeed, the record supports a contrary conclusion
that defense counsel confidently pursued Petitioner’s defense after being
assured Petitioner would behave. See id. at *8. Moreover, Petitioner
agreed to allow counsel to continue his representation after the trial court
denied the request to withdraw. (See ECF No. 12-12, PageID.706.) In
sum, Petitioner fails to explain how defense counsel’s performance was
deficient and prejudiced his trial. Therefore, he is not entitled to habeas
relief.
C. Prosecutorial Misconduct
Next, Petitioner argues that the prosecutor committed misconduct
by failing to test his clothing for DNA evidence.2 (ECF No. 16,
2 Petitioner also appears to argue that the prosecutor introduced inadmissible
evidence of the police report, and the body camera video. Petitioner argues “the
prosecutor knew of the 9-20-19 court hearing on the objection to the police report and
bodycam usage [where] judge ruled she wouldn’t allow it then she did.” (ECF No. 16,
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PageID.1223.) The Michigan Court of Appeals rejected the argument on
direct appeal, concluding that:
The prosecutor must give the defendant any favorable
evidence that is material to guilt or punishment. Brady v.
Maryland, 373 U.S. 83, 87; 83 S. Ct. 1194; 10 L. Ed. 2d 215
(1963); People v. Burger, 331 Mich. App. 504, 518; 953 N.W.2d
424 (2020). However, “[t]he prosecutor’s office is not required
to undertake discovery on behalf of a defendant.” People v.
Leo, 188 Mich. App. 417, 427; 470 N.W.2d 423 (1991). In this
case, there is no indication that the prosecution possessed
exculpatory DNA evidence. Officers testified that defendant’s
clothing was collected but not tested for DNA. The prosecution
was not required to perform DNA testing or other discovery
for defendant. Furthermore, although defendant asserts that
DNA testing would have exonerated him, he does not explain
how.
Sanders, 2021 WL 2618139, at *8.
The Michigan Court of Appeals’ decision was not an unreasonable
application of federal law, nor did it contravene clearly established
Supreme Court precedent. The Supreme Court’s decision in Darden v.
Wainwright, 477 U.S. 168 (1986), establishes the standard for evaluating
PageID.1223.) Although Petitioner seems to challenge the prosecutor’s conduct, he
concedes that the evidence was allowed by the trial court. A prosecutor does not
commit misconduct by introducing evidence that is admissible under state law. See
Dufresne v. Palmer, 876 F.3d 248, 261 (6th Cir. 2017). Accordingly, the trial court’s
ruling necessarily defeats such an argument.
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claims of prosecutorial misconduct. Under Darden, a prosecutor’s
misconduct deprives a criminal defendant of due process of law where it
“so infect[s] the trial with unfairness as to make the resulting conviction
a denial of due process.” Id. at 181 (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). Darden therefore sets a “high bar” for relief.
Stewart v. Trierweiler, 867 F.3d 633, 639 (6th Cir. 2017).
Further, it is well-established that a prosecutor’s failure to disclose
evidence favorable to the defense constitutes a denial of due process
“where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). To find a Brady violation, the
suppressed evidence must be material and favorable to the accused.
Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable evidence is
material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A
‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” Id.
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Here, Petitioner fails to show that the prosecution committed
misconduct by failing to test his articles of clothing for DNA evidence.
During trial, Officer Bacigal testified that when he brought Petitioner to
the hospital, he collected his clothes and placed them into evidence, but
did not test them. (ECF No. 12-10, PageID.553–554.) A prosecutor does
not have an affirmative duty to take action to discover information which
it does not possess or to investigate information which might be favorable
to the defense. Goff v. Bagley, 601 F.3d 445, 476 (6th Cir. 2010).
Petitioner does not explain how the DNA evidence would have been
exculpatory or material to the question of guilt, particularly where
Petitioner’s identity was not at issue. He also fails to explain how the
prosecutor suppressed this evidence. If Petitioner wanted to test his
clothing items prior to trial, he certainly could have done so. For these
reasons, Petitioner is not entitled to habeas relief on this claim.
D. Improper Bindover
Lastly, Petitioner alleges that the state district court abused its
discretion by binding him over to circuit court for trial. (ECF No. 16,
PageID.1224.) He argues that the district court erred because the victim
provided untruthful and uncorroborated testimony of the sexual assaults.
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(Id.) Petitioner did not raise this claim before the state courts;
nevertheless, the Court will address it here because it clearly lacks merit.
See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987).
Petitioner’s claim fails because he has not identified a clearly
established federal law that would contradict the bindover order. “The
bind-over decision itself invokes a question of state law, which is not
cognizable on habeas corpus review.” Redmond v. Worthinton, 878 F.
Supp. 2d 822, 844 (E.D. Mich. 2012) (citing Estelle v. McGuire, 502 U.S.
62, 67–68 (1991); Dorchy v. Jones, 320 F. Supp. 2d 564, 578–79 (E.D.
Mich. 2004), aff’d, 398 F.3d 783 (6th Cir. 2005)). As the court explained
in Dorchy, because “the federal Constitution does not require that a
probable cause hearing be conducted prior to a criminal trial . . . the bind-
over decision constitutes a state-law issue which does not implicate a
federal constitutional right and is not subject to review in a habeas
proceeding.” Dorchy, 320 F. Supp. 2d at 578 (citing Gerstein v. Pugh, 420
U.S. 103, 119 (1975); Schacks v. Tessmer, No. 00–1062, 2001 WL 523533,
at *6 (6th Cir. May 8, 2001)). Because no federal constitutional right is
implicated by the bindover decision, Petitioner cannot maintain a claim
for habeas relief.
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IV. Conclusion
For the reasons set forth above, Petitioner is not entitled to federal
habeas relief on his claims. Accordingly, the Court DENIES and
DISMISSES WITH PREJUDICE the petition for a writ of habeas
corpus.
Before Petitioner may appeal, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy § 2253(c)(2), a habeas petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal
quotation marks omitted). Petitioner makes no such showing.
Accordingly, the Court DENIES a certificate of appealability.
Finally, the Court concludes that an appeal from this decision
cannot be taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the
Court DENIES Petitioner leave to proceed in forma pauperis on appeal.
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IT IS SO ORDERED.
Dated: November 6, 2025 	s/Judith E. Levy
Ann Arbor, Michigan 	JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to their
respective email or first-class U.S. mail addresses disclosed on the Notice of
Electronic Filing on November 6, 2025.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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