## Facts

- Gregory Alexander, a Michigan prisoner, was convicted by a jury in Calhoun County in 1998 of first-degree murder for the 1996 shooting death of Termain Watson and was sentenced to life without parole.
- At trial, jailhouse witness Antonio Postell testified that Alexander made incriminating statements to him while they were housed on different jail floors but could communicate through a ventilation system.
- Postell testified he had no prior agreement with prosecutors to obtain information from Alexander.
- In later habeas litigation, Postell recanted and claimed prosecutors promised him something in exchange for eliciting Alexander’s statements.
- Alexander argued that Postell acted as a government agent after the right to counsel had attached, making the testimony inadmissible under the Sixth Amendment; he also claimed trial counsel was ineffective for not objecting on that basis.
- Michigan courts denied Alexander’s post-conviction motion by citing Michigan Court Rule 6.508(D).
- The federal district court denied § 2254 relief, finding procedural default and, alternatively, that Postell was not a government agent and the recantation was not credible.

## Issues

1. Whether Alexander’s habeas claims were barred by procedural default because the state courts denied post-conviction relief under Michigan Court Rule 6.508(D) as an independent and adequate state ground.
2. Whether Alexander showed cause and prejudice, or actual innocence, sufficient to excuse any procedural default.
3. Assuming review on the merits, whether trial counsel was ineffective under *Strickland* for failing to object that Postell’s testimony violated the Sixth Amendment under *Massiah* because Postell acted as a government agent who deliberately elicited statements after the right to counsel attached.

## Decision

- The Sixth Circuit affirmed the denial of Alexander’s § 2254 petition.
- The court held Alexander’s claims were procedurally defaulted under MCR 6.508(D), an independent and adequate state procedural ground.
- The court held Alexander failed to establish cause and prejudice or a miscarriage of justice to excuse the defaults.
- Alternatively, the court rejected the informant-based Sixth Amendment/ineffective-assistance claim because the record supported findings that Postell was not acting as a government agent and the government did not deliberately elicit Alexander’s statements through him.

## Legal Principles

- A federal habeas court will not review claims rejected by state courts on an independent and adequate state procedural ground unless the petitioner shows cause and prejudice or a miscarriage of justice (actual innocence).
- Michigan courts’ reliance on Michigan Court Rule 6.508(D) is treated as a procedural-bar ruling for federal habeas purposes unless the state court clearly indicates merits review.
- Under *Massiah*, after the Sixth Amendment right to counsel attaches, the government may not deliberately elicit incriminating statements from the accused through a government agent in the absence of counsel.
- An informant’s conduct implicates *Massiah* only if the informant was acting as a government agent and the government intentionally created or used a situation likely to elicit incriminating statements.
- Under *Strickland*, counsel is not constitutionally ineffective for failing to raise a meritless objection.

## Conclusion

The Sixth Circuit affirmed the denial of habeas relief because Alexander’s claims were procedurally barred by Michigan’s post-conviction rule and he did not meet an exception to excuse default; in any event, the informant testimony did not establish a government-agent *Massiah* violation, so counsel’s failure to object did not amount to ineffective assistance.


Alexander v. Smith, 311 F. App’x 875 (6th Cir. 2009)