REPORT AND RECOMMENDATION Petitioner Guy Buck filed this petition for writ of habeas corpus challenging his jury conviction for first-degree murder (felony murder). Petitioner was sentenced to imprisonment for life without the possibility of parole. The respondent has filed an answer and has complied with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. The parties have briefed the issues and the matter is now ready for decision.
Petitioner alleges that:
I. The Michigan Court of Appeals incorrectly wrote that "newly discovered impeachment evidence cannot be [the] basis for a new trial because it is merely cumulative." Furthermore, due process requires a new trial based on newly discovered evidence that the prosecution's star witness perjured himself at trial and has disclaimed his testimony against Petitioner.
II. The trial court abused its discretion by admitting the out-of-court statements of a non-testifying co-conspirator and the court of appeals incorrectly found this error to be harmless.
III. Due process requires a new trial where, in the middle of trial, the eventual foreman of the jury expressed fear that the defendant was dangerous and would retaliate against him.
IV. Petitioner was deprived of his rights of due process and fair trial, cross-examination, and confrontation when a declarant was allowed to testify about an out-of-court statement allegedly made by a non-testifying co-defendant.
V. Petitioner was denied his constitutional right to testify and to have the effective assistance of counsel when defense counsel induced Petitioner to unintelligently waive his right to testify.
VI. Prosecutorial misconduct deprived Petitioner of his right to a fair trial where the prosecutor incorrectly implied Petitioner had an obligation to come forward with his version of events before trial, and where the prosecutor used Petitioner's pre-arrest silence as substantive evidence of guilt to felony murder.
VII. The trial court's jury instruction on great bodily harm unconstitutionally relieved the prosecution of its burden of proof on an essential element of felony murder and deprived Petitioner of his right to a fair trial and a properly instructed jury.
VIII. The trial court failed to instruct the jury sua sponte on second-degree murder, thereby depriving Petitioner of his right to a fair trial.
IX. Petitioner's conviction for felony murder must be reversed because the prosecution has failed to prove Petitioner's guilt for first-degree felony murder beyond a reasonable doubt.
X. Petitioner was denied his right to effective assistance of counsel when counsel (a) failed to secure Petitioner's right to confrontation; (b) erroneously advised defendant not to testify; (c) failed to object when the prosecutor implied that Petitioner had an obligation to tell his version of the events and used Petitioner's silence as substantive evidence; (d) failed to object to erroneous jury instructions; (e) failed to request a second-degree murder instruction; (f) failed to challenge the sufficiency of the evidence; and (g) failed to file necessary motions to protect Petitioner's inherent rights.
XI. Petitioner was denied the effective assistance of appellate counsel on direct review when appellate counsel failed to raise the significant and obvious Claims IV-X.
XII. Petitioner is unconstitutionally deprived of his liberty where he is "factually and actually innocent" of the offense underlying his conviction and imprisonment.1
In April of 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Because this petition was filed after the effective date of the AEDPA, this Court must follow the standard of review established in that statute. Pursuant to the AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This provision marks a "significant change" and prevents the district court from looking to lower federal court decisions in determining whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). To justify a grant of habeas corpus relief under this provision of the AEDPA, a federal court must find a violation of law "clearly established" by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). The Supreme Court held that a decision of the state court is "contrary to" such clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. A state court decision will be deemed an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 412. Rather, the application must also be "unreasonable." Id. Further, the habeas court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was unreasonable. Id. at 410 (disavowing Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Williams, 529 U.S. at 409.
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). The habeas corpus statute has long provided that the factual findings of the state courts, made after a hearing, are entitled to a presumption of correctness. This presumption has always been accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). Under the AEDPA, a determination of a factual issue made by a state court is presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).
Petitioner claims that due process requires a new trial based on newly discovered evidence that the prosecution's star witness perjured himself at trial. The Michigan Court of Appeals rejected this claim stating:
Approximately three months after Buck's trial and conviction, [co-defendant] Benson wrote a letter to the trial court recanting his testimony. Benson indicated that he had testified falsely to avoid a life sentence. Benson's letter placed responsibility for the assault on [co-defendant] Dulak, and the letter indicated that neither Benson nor Buck ever struck [the victim]. This Court remanded for an evidentiary hearing to determine whether Buck was entitled to a new trial on the basis of this newly discovered evidence. At the evidentiary hearing, Benson testified that his testimony in Buck's trial was true and accurate, and that he only wrote the letter in question to avoid being labeled a "snitch." The trial court subsequently denied Buck's motion for a new trial.
II. NEWLY DISCOVERED EVIDENCE
Buck first argues that the trial court abused its discretion by denying his motion for a new trial. This Court reviews a trial court's ruling on a motion for a new trial premised on newly discovered evidence for an abuse of discretion. People v Davis, 199 Mich App 502, 515; 503 NW2d 457 (1993). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006).
For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) "the evidence itself, not merely its materiality, was newly discovered"; (2) "the newly discovered evidence was not cumulative"; (3) "the party could not, using reasonable diligence, have discovered and produced the evidence at trial"; and (4) the new evidence makes a different result probable on retrial. [People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), quoting People v Johnson, 451 Mich 115, 118 n 6, 545 NW2d 637 (1996).]
Newly discovered impeachment evidence cannot be the basis for a new trial because it is merely cumulative. People v Barbara, 400 Mich 352, 363; 255 NW2d 171 (1977). "However, the discovery that testimony introduced at trial was perjured may be grounds for ordering a new trial." Id.
Michigan courts are reluctant to grant a new trial on the basis of recanted testimony because recanted testimony is "traditionally regarded as suspect and untrustworthy." People v Canter, 197 Mich App
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