Argued: August 7, 2019
from the United States District Court for the Western
District of Michigan at Grand Rapids. No. 1:14-cv-01250-Paul
Lewis Maloney, District Judge.
L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES,
Bingham Farms, Michigan, for Appellant.
Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES,
Bingham Farms, Michigan, for Appellant.
M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
Before: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge.
2008, a Michigan jury convicted Thomas Richardson of
first-degree murder for killing his wife, Juanita Richardson,
by causing her to fall from a cliff in Pictured Rocks
National Park. After exhausting his state remedies,
Richardson filed a habeas petition with the United States
District Court for the Western District of Michigan. Pursuant
to the magistrate judge's recommendation, the district
court denied the petition but granted a certificate of
appealability ("COA") on Richardson's claim of
prosecutorial misconduct. This court subsequently granted an
additional COA on Richardson's claims of ineffective
assistance of trial and appellate counsel for failing to
argue that a witness's testimony was obtained as a result
of an illegal, warrantless search.
affirm the district court's denial of Richardson's
petition. Richardson has failed to demonstrate that the
Michigan Court of Appeals' rejection of his claims of
prosecutorial misconduct was objectively unreasonable based
on Supreme Court precedent. Additionally, Richardson has
failed to demonstrate that the state court misapplied Supreme
Court precedent in finding that neither his trial nor
appellate counsel was ineffective.
Richardson and the government have adopted the underlying
facts as set forth by the Michigan Court of Appeals:
[Richardson] was convicted of killing his wife, Juanita
Richardson, by causing her to fall from a cliff in Pictured
Rocks National Park on June 22, 2006. Defendant initially
told a park employee that the victim was missing from their
"honeymoon spot" at the cliff when he returned from
a visit to the restroom. After the victim's body was
recovered from the rocks below the cliff, defendant gave
different accounts of the event to law enforcement officers,
during which he reported both that he observed the victim
intentionally jump from the cliff and that he observed her
accidentally fall from the cliff. After the incident,
defendant also gave conflicting accounts of the event to
various relatives, former and current coworkers, and other
acquaintances. The medical examiner concluded that the
victim's fatal injuries were equally consistent with an
accidental, suicidal, or homicidal fall from the cliff. The
prosecutor's theory at trial was that defendant may have
choked the victim to the point of unconsciousness and then
dropped her over the edge, or used some implement to knock
her over the edge. The defense theory was that the victim
accidentally fell from the cliff.
People v. Richardson, No. 287857, 2010 WL 4320392,
at *1 (Mich. Ct. App. Nov. 2, 2010). Because our analysis
will involve whether Richardson was actually prejudiced by
the admission of certain evidence that he alleges was the
result of a Fourth Amendment violation, however, a more
in-depth summary is necessary.
was charged with first-degree murder and
manslaughter. The prosecution's theory was that
Richardson was a womanizer, who had previously separated from
his wife, Juanita, to be with another woman. He treated his
wife poorly, openly insulting her, committing acts of
domestic violence, giving her a black eye, and threatening to
kill her. He was, at the time of his wife's death,
actively pursuing at least one other woman, Keli Brophy, whom
he had asked to "wait for him" and told he could
"take care of." Brophy, however, had told
Richardson that if he wanted to be together, then his
"ex-wife couldn't be alive." Richardson told
Brophy that his wife had breast cancer, which she did not,
and that she would be dead by Christmas, which she was.
before their fateful trip to their "honeymoon
spot," Juanita reported that her husband had "been
ragging on" her to "get a will." Richardson
requested weekend appointments to meet with attorneys to
draft a will the weekend before their trip. As soon as
Richardson learned that a will was not necessary to avoid
probate in the event of one of their deaths because they
owned their property jointly, Richardson's insistence on
having the wills drafted "completely dissipated."
22, 2006, Richardson and his wife, Juanita, travelled to
their "honeymoon spot" at Pictured Rocks National
Lakeshore on the Upper Peninsula in Michigan. In the time
after Juanita's death, Richardson described a variety of
possible scenarios that could have led to her fall. In one,
he went to the restroom, only to come back and see her body
on the rocks below. In another, he returned from the restroom
to find her standing on the cliff. "[A]s he approached
the cliff site, their eyes met, she said something about -
about God, and turned and jumped off of the cliff." In
yet another version, he returned to find his wife
"standing at the edge of the cliff" before she
"just kind of fell over." In additional variations
of these accounts, Richardson sometimes passed or blacked out
after seeing Juanita at the bottom of the cliff. In
explaining these inconsistent stories, Richardson claimed to
suffer from memory loss due to a work-place injury. Many
witnesses had never observed any other evidence of memory
loss, nor heard Richardson mention it before Juanita's
death. In discussing Richardson's inconsistent stories,
the prosecution's expert witness stated that, based on
her review of the research, "in reports of dissociative
amnesia, typically once the memory returns, it's there,
it's returned." That witness found that it led to
"a conclusion that telling different stories at
different times is a matter of choice, not a matter of memory
suddenly disappearing again."
Juanita's death, Richardson began pursuing other women
more aggressively. According to testimony from Brophy and her
daughter, Richardson appeared uninvited at Brophy's
residence. As a gift, he even brought a plant from
Juanita's funeral. An intelligence analyst testified that
there were fifty-two calls between Richardson and Brophy in
the weeks following Juanita's death. Also, according to
testimony from Tammy Sian, she and Richardson became involved
in August 2006, two months after his wife's death.
Additionally, "several weeks after Juanita
Richardson's death," Richardson approached the
branch manager of his bank to discuss "negotiating
memorial fund checks that he had received." Apparently,
he had told other employees at the bank that he "wanted
to cash" the memorial checks and was told that they
"couldn't just be cashed, they needed to go into a
memorial fund set up specific[ally] for that." Still,
Richardson asked a bank employee if he could take her out to
dinner, within months of his wife's death. When his offer
was rejected, he sent the employee a card with his phone
number. Finally, two months after Juanita's death,
Richardson unknowingly met an undercover agent when getting
dinner with a larger group. Four months after Juanita's
death, after exhibiting a "high" level of interest
in the undercover agent and "regularly" suggesting
that the two meet, Richardson met with the agent alone.
being charged, Richardson was housed in a cell with two
witnesses, both of whom testified that he had said that the
prosecuting attorney would "be the next bitch to go off
defense, meanwhile, argued that Juanita had accidentally
fallen off the cliff. Defense witnesses testified that
Richardson and Juanita had a good marriage and "liked to
argue, but they loved to make up." Richardson was active
in a bible study group. Juanita had allegedly confided in a
friend from church that she had previously had an affair.
magistrate judge's thorough and well-reasoned explanation
of the case contains countless other examples of the kinds of
evidence discussed above. Still, such a summary is
appropriate for the necessary consideration of whether
Richardson was prejudiced by his allegedly ineffective
end, the jury found Richardson guilty of first-degree murder.
He was sentenced to life in prison without the possibility of
parole. The Michigan Court of Appeals affirmed his
conviction, as did the Michigan Supreme Court. Richardson
subsequently moved for relief from judgment. The trial court
denied the motion. Both the Michigan Court of Appeals and
Michigan Supreme Court denied Petitioner leave to appeal,
finding that he "fail[ed] to meet the burden of
establishing entitlement to relief under MCR
6.508(D)." People v. Richardson, No. 316802,
Order (Mich. Ct. App. Dec. 27, 2013); People v.
Richardson, 856 N.W.2d 12 (Mich. 2014).
sought a writ of habeas corpus in the Western District of
Michigan pursuant to 28 U.S.C. § 2254, asserting
fourteen claims of relief that he had previously raised. The
magistrate judge recommended denying relief, and the district
court adopted the magistrate's report over
Richardson's objections. In doing so, however, the court
granted a COA on Richardson's allegation of prosecutorial
misconduct. This Court subsequently expanded that COA to
include the additional issue of whether trial and appellate
counsel were ineffective for failing to argue that some
testimony described above was obtained as a result of an
illegal, warrantless search.
panel is therefore considering two discrete claims: (1)
Whether the Michigan court's rejection of
Richardson's claim of prosecutorial misconduct was
objectively unreasonable; and (2) whether Richardson's
trial and appellate counsel performed ineffectively by
failing to argue that Tammy Sian's testimony was obtained
as a result of an illegal, warrantless search.
the state trial, appellate, and supreme courts, as well as
the federal magistrate and district judges before us, we find
that Richardson's claims of prosecutorial misconduct are
meritless and that the state appellate court was not
objectively unreasonable to reject the argument. Further, we
find that trial and appellate counsel were not ineffective
for failing to argue that Tammy Sian's testimony was
obtained through a warrantless search, and even if counsel
had been ineffective, Richardson was not prejudiced.
preliminary matter, both the government and Richardson claim
that the other party is now attempting to make arguments that
have been procedurally defaulted or waived. The government
argues that several of Richardson's claims of
prosecutorial misconduct, as well as his claim of ineffective
assistance of counsel, have been procedurally defaulted and
should not be considered by this panel. Richardson,
meanwhile, argues that the government has waived the argument
of procedural default by failing to object to the magistrate
judge's recommendation, which explicitly declined to
consider procedural default.
context of a habeas petition, procedural default bars federal
review when a state court has declined to address a federal
claim due to the petitioner's noncompliance with a state
procedural requirement. Wainwright v. Sykes, 433
U.S. 72, 87 (1977). The default is an adequate and
independent state ground upon which the state decision rests.
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). If a
petitioner fails to raise a federal claim on direct appeal,
the claim is procedurally defaulted in federal court.
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). If
a claim has been procedurally defaulted, then habeas review
is only available if a "petitioner can demonstrate (1)
cause for the default and actual prejudice [resulting
therefrom], or (2) that the [court's] failure to consider
the [defaulted argument would] result in a fundamental
miscarriage of justice." Williams v. Bagley,
380 F.3d 932, 966 (6th Cir. 2004) (citing Coleman,
501 U.S. at 749-50).
the Michigan Court of Appeals determined that some of
Richardson's arguments had been defaulted due to his
failure to assert the issue during the trial, the court still
considered the issues. Richardson, 2010 WL 4320392,
at *8-15. The magistrate judge decided that "[r]ather
than attempt to navigate these questions of procedural
default," the court would "simply address
Petitioner's claim on the merits."
Richardson, 2017 WL 9605116, at *58. Faced with the
conflicting state appellate record, we agree with the
magistrate judge that "[a]n analysis of the merits of
the petitioner's substantive claims presents a more
straightforward ground for decision." Id.
(quoting McLemore v. Bell, 503 Fed.Appx. ...