Sardy, Jr. v. Stegall

Full title: LOUIS SARDY, JR., Petitioner, v. JIMMY STEGALL, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Feb 6, 2001

Case No. 99-76005 (E.D. Mich. Feb. 6, 2001)

Opinion

Case No. 99-76005

February 6, 2001

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

BERNARD A. FRIEDMAN, Judge

I. Introduction

Petitioner Louis Sardy, Jr., a state inmate currently incarcerated at the Macomb Regional Correctional Facility in New Haven, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. For the reasons set forth below, the Court denies the motion.

II. Facts

Petitioner's conviction arises out of a controlled drug buy operated by the Macomb County Sheriff's Department with the cooperation of an informant, Rodney Gajewski. On December 14, 1989, Macomb County Sheriff's Department deputies investigating drug trafficking operations conducted a raid on the informant's home pursuant to which they found $15,000 cash, but no narcotics. While being questioned by police, the informant was contacted by Petitioner who was seeking a quote for a kilogram of cocaine. The informant agreed to cooperate with police and set up a controlled buy with Petitioner. The informant and Petitioner eventually agreed on a price of $7,000 for a quarter kilogram of cocaine.

The informant went to Petitioner's house with $7,000 in prerecorded bills. While under surveillance by fourteen police officers, the informant went into Petitioner's house and came back oat with nine or ten ounces of cocaine. Police then obtained a search warrant for Petitioner's home.

Police found an ounce cocaine in an oil can with a false bottom in Petitioner's garage. They also found a red cookie tin, containing 317.5 grams of cocaine under a window ledge in the backyard of the home. There were footprints from the back door of the house to the window ledge. Police Officer Chris Trikes testified that the footprints had a distinctive stitch pattern which he later determined matched the stitch pattern on the slippers Petitioner was wearing. Finally, police found the $7,000 in prerecorded bills on a bureau in Petitioner's bedroom.

Petitioner was convicted of possession with intent to deliver between 225 and 650 grams of cocaine.

III. Procedural History

Following a jury trial in Macomb County Circuit Court, Petitioner was convicted of possession with intent to deliver between 225 and 650 grams of cocaine. On September 111, 1992, he was sentenced to twenty to thirty years imprisonment.

Following his conviction, Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:

I. Defendant's trial was unlawfully prejudiced by the introduction into evidence of testimony about prior offenses of a similar nature allegedly committed by defendant.

II. Defendant was prejudiced by the failure of the trial court to give instruction as to the limited uses of 404(5) testimony and by failure of counsel to request instruction.

III. The search warrant issued for defendant's residence was defective in that the affidavit supporting it failed to disclose affiant was utilizing hearsay information.

IV. Error was committed by the trial court in not finding "substantial and compelling reasons" to depart from the mandatory (20-30 years) of M.C.L. 333.7401(2)(a)(ii), and in limiting defendant's right to allocution.

V. Defendant had ineffective assistance of counsel at sentencing.

Petitioner also filed a motion to file supplemental brief, to present the following claims: the trial court erred in allowing testimony of prior offenses; prosecutorial misconduct; he was deprived of his right to confrontation because he was not permitted to confront the informant regarding the penalty he was avoiding by cooperating with police; ineffective assistance of counsel; and the trial judge was ineligible to be appointed as a visiting judge. On March 29, 1996, the Michigan Court of Appeals issued an opinion affirming Petitioner's conviction and sentence. People v. Sardy, 216 Mich. App. 111 (Mich.App. 1996).

Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the following claims:

I. Louis Sardy's state criminal prosecution after a federal forfeiture action growing out of the same facts and evidence violated the constitutional guarantee against double jeopardy.

II. The Court of Appeals clearly erred when it found that appellant was not denied the right to confront the witness and his right to present a defense was not impaired.

III. Prosecutorial conduct denied appellant due process of law in the following ways:

A. The prosecutor vouched for the truthfulness of his case and the credibility of his witnesses.

B. The prosecutor shifted the burden of proof

C. The prosecutor offered speculation and innuendo and argued facts outside the record becoming an unsworn witness.

D. The prosecution commented on the defendant's exercise of his constitutional right to remain silent at trial.

IV. Louis Sardy was denied due process of law at sentence and the right to a proportionate sentence in the following ways:

A. The statute under which Appellant was sentenced is unconstitutional in that after the decision in People v. Bullock the sentences are no longer proportionate.

B. Mr. Sardy was denied due process of law when the court considered publicity in refusing to depart below the mandatory minimum.

C. Mr. Sardy's right to allocute at sentence was unfairly limited.

V. Mr. Sardy was denied due process of law under both the state and federal constitution when the lower court allowed the introduction of prior bad acts under M.C.R. 404(b).

VI. Appellant was denied the effective assistance of counsel in the following ways:

A. Counsel failed to ask for an instruction on lesser included offenses.

B. Defense counsel failed to object to prosecutorial misconduct.

C. Defense counsel failed to ask for a limiting instruction on the use of the 404(b) evidence.

D. Defense counsel failed to cite the correct standard in his sentencing brief.

E. Defense counsel failed to challenge the legality of the search warrant.

VII. Appellant was denied due process of law by the trial judge in the following ways:

A. The visiting judge was well over the age of 70.

B. A retired judge can only be appointed to a vacancy.

C. The judge's comments denied appellant a fair trial.

VIII. The affidavit in support of the search warrant did not contain a sufficiently substantial basis from which to conclude that there was probable cause to believe that cocaine would still be on the premises or offer facts from which a magistrate could conclude that the confidential informant was credible o[r] the information reliable.

The Michigan Supreme Court denied leave to appeal. People v. Sardy, No. 106120 (Mich. Feb. 28, 1997).

Petitioner then filed a motion for relief from judgment in the trial court claiming that he was entitled to a new trial on the ground that the trial court refused to instruct the jury on a lesser offense. He also argued that he had ineffective assistance of counsel because: (1) his attorney failed to file a dispositive motion to suppress evidence which had been seized in violation of his Fourth Amendment right against unreasonable searches; (2) he was denied his constitutional right to testify on his own behalf; and (3) his attorney failed to disclose the trial court's denial of his request for an instruction on a lesser offense. The trial court denied Petitioner's motion for relief from judgment. People v. Sardy, No. 90-0099 (Macomb County Circuit Ct. April 23, 1998).

Petitioner then filed an application for leave to appeal to the Michigan Court of Appeals, which was denied. People v. Sardy, No. 211580 (Mich.Ct.App. Oct. 9, 1998). Petitioner filed a motion for rehearing in the Michigan Court of Appeals, which was also denied. People v. Sardy, No. 211580 (Mich.Ct.App. Dec. 29, 1998). Petitioner next filed an application for leave to appeal to the Michigan Supreme Court, which was denied. People v. Sardy No. 113908 (Mich. July 27, 1999). He also filed a motion for reconsideration, which was also denied. People v. Sardy, No. 113908 (Mich. Sept. 29, 1999).

On December 15, 1999, Petitioner, through counsel, filed the pending petition for a writ of habeas corpus presenting the following claims:

I. Petitioner was denied his right to confrontation when the trial court refused to allow cross-examination of the informant concerning the penalty avoided by cooperating with police and prosecution against Petitioner.

II. Petitioner was denied due process because the trial court allowed the introduction of similar acts evidence which was not material to any issue at trial and which instead was used to establish that Petitioner had a propensity to deliver drugs.

III. Mr. Sardy was denied the effective assistance of counsel as follows:

A. Counsel failed to move to suppress evidence obtained as a result of a violation of similar acts evidence which was not material to any issue at trial and which instead was used to establish that Petitioner had a propensity to deliver drugs.

B. Counsel failed to disclose to Petitioner that the trial court denied [sic] of his request for a jury instruction on a lesser offense which was the primary defense theory.

C. Counsel failed to request an instruction cautioning the jury about evidence of alleged prior bad acts.

D. Counsel failed to object to prosecutorial misconduct.

E. Counsel failed to make a record of his request for a jury instruction on a lesser included offense which pertained to the defense theory of the case.

IV. The failure of appellate counsel to raise some of the foregoing issues denied Petitioner Sardy his constitutional right to appeal and was "cause" for Petitioner's failure to raise the issue in his appeal as of right and resulted in "prejudice" to Petitioner.

IV. Analysis A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.

As amended, 28 U.S.C. § 2254 (d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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 proceedings.

28 U.S.C. § 2254 (d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, Franklin v. Francis, 144 F.3d 429 (6^th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(l) ¹; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6^th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").

1 28 U.S.C. § 2254 (e)(l) provides, in pertinent part:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.

The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .

A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.

Williams v. Taylor, 120 S.Ct. 1495, 15 19-20 (2000).

With respect to the "unreasonable application" clause of § 2254(d)(l), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable . . .

[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 1521-22.

With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.

B. Alleged Confrontation Clause Violation

In his first claim for habeas corpus relief, Petitioner argues that the trial court violated his rights under the Confrontation Clause in limiting his cross-examination of the informant Rodney (Gajewski. Specifically, Petitioner contends that he should have been permitted to cross-examine the informant regarding the informant's knowledge of the potential criminal sentence he was avoiding by testifying.

The last state court to issue a reasoned opinion on this claim, the Michigan Court of Appeals, held as follows:

Defendant next argues that he was denied the right to confront the witnesses against him and the right to a jury trial when the judge ruled that he could not inquire whether the informant knew the penalty if the informant had been charged with conspiracy. The trial court concluded that whether the informant was aware of this fact was irrelevant inasmuch as the informant had never actually been charged with conspiracy and that had not formed the basis of a plea bargain. Defendant was otherwise fully permitted to cross-examine the witness, including bringing forth the fact that the informant had avoided prosecution in exchange for his testimony. Defendant was thus able to establish the informant's motive to fabricate. We are not persuaded that withholding from the jury the fact whether the informant knew the potential sentence he was facing absent cooperation impaired defendant's ability to confront the witness against him and present a defense.

People v. Sardy, 549 N.W.2d at 26.

The Sixth Amendment's Confrontation Clause, made applicable to states through the Fourteenth Amendment, provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Ohio v. Roberts, 448 U.S. 56, 62-63 (1980). The Supreme Court has held that "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1973), quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3^rd Ed. 1940) (emphasis in original).

The Supreme Court has explained the importance of cross-examination as follows:

Cross examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

Id. at 312.

This Court holds that the trial court did not deprive the Petitioner of his right to confront the witnesses against him in not allowing questions regarding the specific sentence the informant was avoiding by testifying against Petitioner. Petitioner was still able to explore fully the informant's self-interest in testifying and the concomitant danger that his testimony was therefore not truthful. Thus, this Court determines that the Michigan Court of Appeals decision was not contrary to or an unreasonable application of Supreme Court precedent. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.

C. Admission of Similar Acts Evidence

Petitioner next argues that he is entitled to habeas corpus relief because the trial court improperly admitted evidence of Petitioner's prior involvement with other narcotics trafficking. Petitioner claims that the admission of this evidence violated Michigan Rule of Evidence 404(5) and was so prejudicial that it rendered his trial fundamentally unfair and violated his right to due process.

It is well-established that "`federal habeas corpus review does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991), quoting Louis v. Jeffers, 497 U.S. 764, 780 (1990). The Sixth Circuit has held that "[i]n a federal habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law." Long v. Smith, 663 F.2d 22, 23 (6^th Cir. 1981).

The Sixth Circuit has held that "[h]abeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6^th Cir. 1994), citing Fuson v. Jago, 773 F.2d 55, 59 (6^th Cir. 1985), cert, denied 478 U.S. 1020 (1986). See also Estelle, 502 U.S. at 72 (holding that a federal court may not grant habeas corpus relief simply on the basis that a trial court incorrectly interpreted state evidence rules to allow admission of prior bad acts evidence). Petitioner fails to establish that the admission of this evidence violated his constitutional rights. Accordingly, it is a state law claim and cannot form a basis for federal habeas corpus relief.

D. Alleged Ineffective Assistance of Counsel

Petitioner claims that he is entitled to habeas corpus relief because he received constitutionally ineffective assistance of counsel. Specifically, Petitioner argues that trial counsel was ineffective for: (1) failing to move to suppress evidence obtained by an unconstitutional search and seizure; (2) failing to disclose to Petitioner the trial counsel's denial of a request for a lesser included offense instruction; (3) failing to request a cautionary instruction regarding similar acts evidence; (4) failing to object to prosecutorial misconduct; and (5) failing to make a record of counsel's request for a lesser included offense jury instruction.

1. Procedural Default

As an initial matter, Respondent argues that Petitioner's first, second, and fifth claims of ineffective assistance of counsel are barred from review in this Court because they are procedurally defaulted. The doctrine of procedural default provides:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6^th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982);Simpson v. Sparkman, 94 F.3d 199, 202 (6^th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; Murray v. Cater, 477 U.S. 478, 496 (1986).

For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6^th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.

If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

This Court begins its analysis of whether Petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. See Coleman, 501 U.S. at 729-30. The last state court to address these claims, the Michigan Supreme Court, denied Petitioner leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508 (D)." People v. Sardy. No. 113908 (Mich. July 27, 1999). The Sixth Circuit Court of Appeals has held that M.C.R. 6.508(D)(3) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where the rule was in effect at the time of a petitioner's direct appeal. Id. at 1007, citing Rogers v. Howes, 144 F.3d 990 (6^th Cir. 1998). M.C.R. 6.508(D) was enacted in October 1989. Petitioner was convicted in 1992. Thus, M.C.R. 6.508(D) was a firmly established and regularly followed state procedural bar at the time of Petitioner's conviction and direct appeal. The Sixth Circuit Court of Appeals has also held that even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson v. Jones, 2000 WL 1828733, *6-7 (6^th Cir. Dec. 5, 2000). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked.

Therefore, this Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

In the instant case, Petitioner claims that his appellate attorney's ineffectiveness constitutes "cause." The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.

The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Id. at 689 (internal citations omitted).

The Court further explained that, to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6^th Cir. 1996), cert. denied 520 U.S. 1257 (1997).

The Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The Court further stated:

For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the . . . goal of vigorous and effective advocacy. . . . Nothing in the Constitution or our interpretation of that document requires such a standard.

Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel," United States v. Perry, 908 F.2d 56, 59 (6^th Cir. 1990). Petitioner has failed to show that by omitting the ineffective assistance of trial counsel claims raised by Petitioner herein appellate counsel's performance fell outside the wide range of professionally competent assistance.

Because Petitioner has failed to establish that his appellate attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. His claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo. 513 U.S. 298 (1995).

The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id.

Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented to the trial court. Accordingly, Petitioner's first, second, and fifth claims of ineffective assistance of counsel are procedurally barred.

2. Alleged Failure of Defense Counsel to Inform Petitioner that Trial Court Denied Request for Lesser Offense Instruction

Petitioner argues that his attorney was ineffective because he failed to inform Petitioner that the trial court denied defense counsel's request for an instruction on the lesser offense of possession of 25-50 grams of cocaine. Petitioner claims that had he known the trial court's decision he would have testified in his own defense.

The Macomb County Circuit Court, the last state court to issue a reasoned opinion addressing this claim, held, in pertinent part:

[D]efendant has failed to establish in the record that he had been denied the right to testify on his own behalf. His reliance on his own recently produced affidavit will not be considered by this Court under [People v. Wiley, 315 N.W.2d 540 (1981)]. In any event, he does not deny that the trial court had advised him of his right to testify.

Defendant has also failed to show in the record that his counsel did not inform him of the trial court's denial of the request for a lesser offense.

People v. Sardy, slip op. at 4-5 (Macomb County Circuit Ct. April 23, 1998).

Petitioner has failed to show that the state court's holding was contrary to or an unreasonable application of Supreme Court precedent. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.

3. Failure to Object to Alleged Prosecutorial Misconduct

Finally, Petitioner claims that his attorney was ineffective because he failed to object to alleged instances of prosecutorial misconduct. Specifically, Petitioner argues that the prosecutor (1) vouched for the credibility of witnesses; (2) shifted the burden of proof; and (3) argued speculation, innuendo, and facts outside the record.

The last state court to address the merits of this claim, the Michigan Court of Appeals, held, in pertinent part:

[Defendant alleges] that he was denied the effective assistance of counsel due to counsel's failure to object to prosecutorial misconduct. . . . [D]efendant fails to overcome his burden of showing that counsel's conduct did not constitute sound trial strategy.

People v. Sardy, 549 N.W.2d at 26-27.

Petitioner has failed to show that the Michigan Court of Appeals decision was contrary to or an unreasonable application for Supreme Court precedent. "[A] prosecutor may not express a personal opinion concerning the guilt of a defendant . . . because such personal assurances of guilt . . . exceed the legitimate advocate's role by improperly inviting the jurors to convict the defendant on a basis other than a neutral independent assessment of the record proof" Caldwell v. Russell, 181 F.3d 731, 737 (6^th Cir. 1999). However, "a state's attorney is free to argue that the jury should arrive at a particular conclusion based on the record evidence, including the conclusion that the evidence proves the defendant's guilt." Id. While the prosecutor did use the terms "I believe" and "we believe" in his closing argument, viewing the argument as a whole, the prosecutor's comments did not amount to impermissible vouching. Instead, the prosecutor asked the jury to make reasonable inferences based on the evidence presented at trial.

Similarly, Petitioner has failed to show that the prosecutor shifted the burden of proof Moreover, to the extent that the prosecutor's closing statement was at all confusing to the jury, the trial court accurately instructed the jury as to the burden of proof. Thus, even if counsel erred in failing to object to the prosecutor's closing statement, Petitioner has failed to establish that he suffered any prejudice therefrom.

Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.