Opinion
No. 01-CV-74634-DT
December 20, 2002
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Antonio Boston, a state prisoner currently confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of armed robbery and second-degree murder following a jury trial in the Recorder's Court for the City of Detroit in 1994. He is serving concurrent terms of 30 to 75 years imprisonment on those convictions.
In his pleadings, Petitioner raises claims concerning the right of confrontation, illegal arrest, the voluntariness of his police statement, juror bias, and the effectiveness of trial counsel. For the reasons stated below, Petitioner's request for habeas relief is denied and the petition for a writ of habeas corpus is dismissed.
I. Factual Background
Petitioner's convictions stem from the shooting death of a furniture store manager during the commission of an armed robbery in Detroit, Michigan on April 1, 1994. The Michigan Court of Appeals described the incident as follows:
In the late afternoon of April 1, 1994, Mohammed "Mike" Bern was shot and killed during the robbery of the furniture store that he managed in Detroit. Although there were no eyewitnesses to the murder, witnesses testified that defendants were in the store that afternoon and were seen walking back toward the store shortly before the murder. On the basis of information provided by an unnamed informant, police officers arrested defendants Norfleet and Boston four days after the robbery. Defendant Coon was arrested at his home later that night. After questioning by officers, defendants signed written statements implicating themselves in the robbery and murder.People v. Boston, No. 183441, *2 (Mich.Ct.App. June 20, 1997) (unpublished). Petitioner was subsequently charged with first-degree murder and armed robbery. He was tried by separate jury with co-defendant Gerome Norfleet, who was convicted of first-degree murder, armed robbery, and felony firearm. Co-defendant James Coon was tried separately and convicted of armed robbery.
Prior to trial, Petitioner moved to suppress his police statement as involuntary and the fruit of an illegal arrest. At the evidentiary hearing on this matter, Sergeant Danny Maynard testified that he ordered Petitioner's warrantless arrest based upon information he had received from a confidential informant. He testified that the informant had not been present during the crime, but had received the information from a third party. The informant provided specific and accurate information of items linked to the crime scene. The informant also identified Petitioner and Gerome Norfleet as two of the perpetrators. As a result of this information, Maynard began the process for obtaining search warrants, had Norfleet's and Petitioner's homes placed under surveillance, and instructed officers to arrest them. The two arresting police officers testified that they were given Gerome Norfleet's name and description, a car's license plate number and description, and descriptions of two other individuals who were identified as young black males. The officers subsequently observed and stopped the car which had been identified and arrested its occupants — Norfleet, Petitioner, and an uncharged individual.
Police officer Everett Monroe testified that he questioned Petitioner about the robbery and shooting. The interview was not recorded. Prior to giving his statement, Petitioner was advised of his Miranda rights and signed a constitutional rights form. Petitioner then provided a written statement implicating himself in the crime. Monroe denied that Petitioner asked for an attorney and denied that Petitioner was told that it would take three weeks to obtain legal counsel.
Petitioner also testified at the hearing. He claimed that he requested an attorney while in custody but was told that it would take three weeks to get one. He also testified that the police told him that if he did not cooperate he would spend the rest of his life in prison and that he would be doing himself and his family a big favor by cooperating with the authorities.
At the close of the hearing, the trial court denied the motion to suppress, finding that police had probable cause to arrest Petitioner based upon the information received from the confidential informant and that Petitioner's statement was voluntary.
The case proceeded to trial. During jury voir dire, prospective juror Genice Jennings indicated that she did not think that she could be fair because her family had been victimized by a deadly crime. Upon further questioning by the court, she acknowledged that as a juror she would have to decide the case based upon the evidence. Petitioner asked to have the juror dismissed for cause, but the trial court denied the request. Petitioner then used a peremptory challenge to dismiss the juror. Petitioner exhausted all of his peremptory challenges by the close of jury voir dire.
At trial, the prosecution argued that Petitioner participated in the robbery and shooting with Gerome Norfleet and James Coon. Sergeant Maynard reiterated his testimony concerning the confidential informant and the events that led to Petitioner's arrest. Maynard further testified that the informant provided details of evidence left at the scene including the caliber of gun used, jewelry items, and a pager. Maynard stated that the informant identified Petitioner and Norfleet as the perpetrators and provided their addresses. One of the arresting officers testified about the circumstances of Petitioner' s and Norfleet's arrests.
Several witnesses testified that they observed Petitioner in the furniture store near the time of the robbery and shooting. Debra Graham testified that she saw Petitioner and Norfleet in the furniture store around 3:30 p.m. on April 1, 1994. They left a few minutes after she did. She gave police descriptions of the men shortly after the incident and identified both of them at trial. Kenya Graham, Debra Graham's daughter, testified that she was at the furniture store with her mother and two young children on April 1, 1994. She saw two men in the store as well. One whom she identified as Petitioner asked for her telephone number, but she told him she did not have one. When she asked for his number, he did not respond. The two men eventually left the store and crossed the street. When she was leaving the store, she saw the two men heading back in the direction of the store. Kenya Graham did not identifyNorfleet as the other individual. Jeffrey Smith testified that he was in the furniture store with his daughter on the afternoon of April 1, 1994. He said that three men entered the store and stayed for about 10 minutes. He identified Petitioner and Norfleet as two of the men. He testified that he had also picked Petitioner out of lineup prior to trial. Defense counsel apparently did not impeach the witness with a lineup sheet which indicated that he did not so identify Petitioner. Smith acknowledged that he had only described one black male to the police at the time of the incident.
Police officer Everett Monroe testified that he took Petitioner's written statement after his arrest. Petitioner told him that he, Gerome Norfleet, and James Coon went to the furniture store on April 1, 1994 with the intention of robbing it. During the robbery, he heard a shot and left the store. Norfleet and Coon left the store shortly thereafter. Nothing was taken from the store.
Petitioner did not testify at trial, but his defense was that he was not present when the robbery/shooting occurred. At the close of trial, the jury found Petitioner guilty of second-degree murder and armed robbery. The trial court subsequently sentenced him to concurrent terms of 50 to 75 years imprisonment.
II. Procedural History
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals raising the same claims presented in the instant petition, as well as a sentencing claim. The Court of Appeals remanded the case for re-sentencing, but affirmed Petitioner's convictions in an unpublished per curiam opinion. People v. Boston, No. 183441 (Mich.Ct.App. June 20, 1997). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Boston, No. 110622 (Mich. May 28, 1998). The trial court re-sentenced Petitioner to concurrent terms of 30 to 75 years imprisonment on January 15, 1999. Petitioner filed an appeal as of right challenging his sentence, which was denied in an unpublished memorandum opinion. People v. Boston, No. 217600 (Mich.Ct.App. Dec. 8, 2000). Petitioner did not seek leave to appeal this decision with the Michigan Supreme Court.
Petitioner, through counsel, filed the instant habeas petition with this Court on December 6, 2001, raising the following claims:
I. He was prejudiced by the testimony of a police officer that an unnamed informant told him that Petitioner committed the crime.
II. The trial court improperly refused to suppress his statement to police as the fruit of an illegal arrest.
III. The trial court improperly refused to suppress Petitioner's statement to police where the statement was involuntary.
IV. The trial court improperly refused to dismiss a prospective juror who stated she could not be impartial.
V. Petitioner was prejudiced by ineffective assistance of counsel.
Respondent filed an answer to the petition on June 10, 2002, asserting that the claims should be denied for lack of merit. Respondent filed a reply to that answer on June 13, 2002.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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 proceeding.28 U.S.C. § 2254 (d) (1996).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied— the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ 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. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 411. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the 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.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis
A. Admission of Testimony/Confrontation Claim
Petitioner first claims that he is entitled to habeas relief because the trial court erred and violated his confrontation rights by allowing a police officer to testify regarding a confidential informant's tip that Petitioner had participated in the crime. It is well-settled that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle v. MeGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Questions concerning the admissibility of evidence are properly left to the sound discretion of the trial court. Oliphant v. Koehler, 594 F.2d 547, 555 (6th Cir. 1979). Only where admission of the disputed evidence renders a trial "so fundamentally unfair as to constitute a denial of federal rights" may it provide grounds for granting a writ of habeas corpus. Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994).
In this case, Michigan Court of Appeals found that the challenged statements were not hearsay and were admissible because they were offered to explain why the police officer undertook certain actions and not to prove the truth of the matter asserted. See Mich. R. Evid. 801(c); Fed.R.Evid. 801(c). The Court of Appeals did not specifically address whether the admission of the testimony constituted a denial of Petitioner's federal rights. Boston, No. 183441 at *5, Accordingly, this Court must conduct an independent review of the state court's decision. See, e.g., Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). This independent review requires the federal court to "review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 943. This independent review "is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id.
Having considered this matter, the Court finds that the Michigan Court of Appeals' decision is neither contrary to federal law nor an unreasonable application thereof. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The right to confront witnesses does not apply, however, when testimony is admitted for nonhearsay purposes. See Tennessee v. Street, 471 U.S. 409, 414 (1985) (holding that "[t]he nonhearsay aspect of[a codefendant's] confession — not to prove what happened at the murder scene but to prove what happened when [the defendant] confessed — raises no Confrontation Clause concerns"); see also United States v. Cope, ___ F.3d ___ 2002 WL 31548782, *18 (6th Cir. Nov. 19, 2002); United States v. Bartle, 835 F.2d 646, 651 (6th Cir. 1987). As noted by the Michigan Court of Appeals, the disputed testimony was not hearsay as it was not offered to prove the truth of the matter asserted. Accordingly, Petitioner's right of confrontation was not implicated. Habeas relief is not warranted on this claim.
B. Illegal Arrest Claim
Petitioner next claims that he is entitled to habeas relief because his police statement was the product of an illegal arrest and should have been suppressed. Federal courts will not address a Fourth Amendment claim upon habeas review if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform two distinct inquiries when determining whether a petitioner may raise a claim of illegal arrest in a habeas action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).
Michigan has a procedural mechanism which presents an adequate opportunity for a criminal defendant to raise a Fourth Amendment claim. See, e.g., People v. Ferguson, 376 Mich. 90, 93-94 (1965) (motion to suppress), People v. Harris, 95 Mich. App. 507, 509 (1980). Petitioner has not shown that a failure of that procedural mechanism prevented him from litigating his claims. Petitioner was provided a suppression hearing before the trial court and raised his Fourth Amendment claim before the Michigan Court of Appeals. The Michigan Court of Appeals addressed the merits of the claim and determined that police had probable cause to arrest Petitioner based upon information received from a confidential informant. Boston, No. 183441 at *4,
Given this record, it is clear that the Michigan Court of Appeals was cognizant of Petitioner's Fourth Amendment claim and that he received all the process he was due. Accordingly, any claims concerning the validity of Petitioner's arrest are not cognizable on habeas review pursuant to Stone v. Powell. Petitioner is not entitled to relief on this claim.
C. Involuntary Statement/Violation of Right to Counsel Claim
Petitioner next claims that he is entitled to habeas relief because his police statement was involuntary. The Fifth Amendment privilege against compulsory self-incrimination bars the admission of involuntary confessions. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986). A confession is considered involuntary if (1) the police extorted the confession by means of coercive activity; (2) the coercion in question was sufficient to overbear the will of the accused; and (3) the will of the accused was in fact overborne "because of the coercive police activity in question." McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988).
The voluntariness of a confession is a mixed question of law and fact. Thompson v. Keohane, 516 U.S. 99, 108-11 (1995). In determining whether a confession is voluntary, the ultimate question is "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." Miller v. Fenton, 474 U.S. 104, 112 (1985). Those circumstances include:
1. Police Coercion (a "crucial element")
2. Length of Interrogation
3. Location of Interrogation
4. Continuity of Interrogation
5. Suspect's Maturity
6. Suspect's Education
7. Suspect's Physical Condition Mental Health
8. Whether Suspect Was Advised of Miranda Rights
Withrow v. Williams, 507 U.S. 680, 693-94 (1993). All of the factors involved in the giving of the statement should be closely scrutinized. Culombe v. Connecticut, 367 U.S. 568, 602 (1961). Without coercive police activity, however, a confession should not be deemed involuntary. Connelly, 479 U.S. at 167 ("coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause"). The burden of proving that a confession was obtained involuntarily rests with the petitioner. Boles v. Foltz, 816 F.2d 1132, 1136 (6th Cir. 1987). Voluntariness need only be established by a preponderance of the evidence. Id.
In this case, the Michigan Court of Appeals concluded that Petitioner's statement to police was voluntary. Boston, No. 183441 at *4-5. Having reviewed the record, this Court is convinced that the state court's determination that Petitioner's confession was voluntary is consistent with United States Supreme Court precedent and constitutes a reasonable application thereof. There is no evidence of coercive or abusive tactics by the police. Petitioner was approximately 19 years old at the time he made his statement, could read and write, and had completed the 11th grade. Petitioner was advised of his Miranda rights, stated that he understood his rights, and signed a constitutional rights form. There is no evidence that Petitioner's physical or mental condition was impaired or that he was deprived of any necessity while in custody. Accordingly, having scrutinized the relevant factors, the Court is satisfied that Petitioner's confession was voluntary and that his constitutional rights were not violated by the admission of his police statement into evidence at trial.
Petitioner relatedly claims that his statement was obtained in violation of the right to counsel. The Fifth Amendment to the United States Constitution guarantees a criminal defendant the privilege against compulsory self-incrimination. In Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), the United States Supreme Court held that before the police can initiate custodial interrogation of a defendant, they must advise the defendant of certain rights, including the right to remain silent and the right to counsel. Once the defendant requests the assistance of counsel, he or she may not be subject to further interrogation by the police until counsel has been provided. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
The Michigan Court of Appeals found that Petitioner waived this issue by failing to preserve it for appellate review. Boston, 183441 at *5 Federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85. In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion and relied upon a state procedural bar in dismissing Petitioner's claim — his failure to properly raise this issue before the trial court. The failure to properly raise and preserve issues in the trial court is a recognized and firmly-established independent and adequate ground in Michigan for refusing to review trial errors. See People v. Grant, 445 Mich. 535, 546 (1994); see also Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). The Michigan Court of Appeals dismissed Petitioner's claim based upon his failure to raise this issue before the trial court.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). Petitioner neither alleges nor establishes cause for his failure to preserve this issue at trial. This Court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. See, e.g., Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Nonetheless, this Court finds that Petitioner cannot demonstrate prejudice as his claim lacks merit. Petitioner asserts that his statement was obtained in violation of the right to counsel because he requested an attorney while in custody and the police told him that it would take three weeks for him to get one. At the evidentiary hearing on this matter, the police denied that Petitioner requested legal counsel and denied that he was told it would take three weeks to obtain counsel. In rejecting on Petitioner's voluntariness claim, the trial court surely found the police testimony more credible than Petitioner's testimony. Petitioner has not rebutted this credibility determination with clear and convincing evidence. Habeas relief is not warranted on this claim.
Lastly, Petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] 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." Schlup, 513 U.S. at 324. Petitioner has made no such showing. This claim is thus barred by procedural default, is otherwise without merit, and does not warrant habeas relief.
D. Juror Bias Claim
Petitioner also claims that he is entitled to habeas relief because the trial court refused to excuse a biased juror for cause, requiring him to use a peremptory challenge to dismiss that juror. It is well-settled that the Sixth Amendment right to a jury trial guarantees a criminal defendant a fair trial by a panel of impartial jurors. See, e.g., Smith v. Phillips, 455 U.S. 209, 217 (1982). However, a defendant's right to a fair and impartial jury is not denied or impaired when he chooses to use a peremptory challenge to remove a juror who should have been removed for cause. Unlike the Sixth Amendment right to an impartial jury, peremptory challenges are not of federal constitutional dimension. United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000). "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated." Ross v. Oklahoma, 487 U.S. 81, 88 (1988); accord Martinez-Salazar, 528 U.S. at 3 13-14. Thus, it is not enough for a defendant to show that the decision not to exclude a juror for cause was improper. A defendant must also show that the jury selected was biased. See Ross, 487 U.S. at 83-85; Hill v. Brigano, 199 F.3d 833, 844-45 (6th Cir. 1999); Hoss v. Jackson, No. 99-CV-73582-DT, 2000 WL 1137731, *9 (E.D. Mich. July 13, 2000).
The Michigan Court of Appeals considered this issue under state law and concluded that Petitioner had not shown an error requiring reversal because he had not established that he desired to excuse another juror after exhausting all available peremptory challenges. The court did not specifically address whether the trial court's conduct constituted a denial of Petitioner's federal rights. Boston, No. 183441 at *4. Accordingly, this Court must conduct an independent review of the state court's decision on this issue. See Harris, supra, 212 F.3d at 943. Having reviewed the record, this Court concludes that the Michigan Court of Appeals' decision is neither contrary to federal law nor an unreasonable application of that law. Petitioner has neither alleged nor established that any member of the seated jury was prejudiced against him and should have been removed from the panel to ensure his right to a fair trial. The fact that Petitioner had to use a peremptory challenge to excuse an allegedly biased juror does not establish a constitutional violation. Petitioner is thus not entitled to relief on this claim.
E. Ineffective Assistance of Counsel Claim
Lastly, Petitioner claims that trial counsel was ineffective for failing to impeach the testimony of a witness and for failing to join in the co-defendant's motion seeking production of the confidential informant. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the 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 he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, 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." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The Sixth Circuit has thus concluded that a reviewing court should 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 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
The Michigan Court of Appeals in this case found that even if counsel's performance was deficient, Petitioner had failed to show that but for counsel's conduct the outcome of the trial would have been different. Boston, No. 183441 at *5. Having considered the matter, this Court concludes that the Court of Appeals' decision is consistent with Strickland and constitutes a reasonable application thereof First, Petitioner was not prejudiced by counsel's failure to impeach witness Smith's identification of him given that two other witnesses identified him and given that he admitted participating in the robbery in his police statements. Second, even if counsel had moved to produce the confidential informant, Petitioner has not shown that such a motion would have been successful or that the confidential informant's testimony would have been favorable to the defense. Further, given the other evidence at trial, including Petitioner's statement, Petitioner cannot establish that he was prejudiced by counsel's conduct under the standard set forth in Strickland. He is thus not entitled to habeas relief on this claim.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented. Accordingly,
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.