Opinion
Case No. 00-10013-BC
November 6, 2002.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Bobby Bowie, presently confined at the Riverside Correctional Facility in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application the petitioner challenges his state convictions for armed robbery, Mich. Comp. Laws § 750.529, and possession of a firearm while committing a felony (felony firearm), Mich. Comp. Laws § 750.227b. The Court finds that some of the petitioner's claims are procedurally defaulted, and those that merit review do not establish that the petitioner is confined in violation of the Constitution or laws of the United States. The Court will therefore deny the petition.
I.
The petitioner was convicted of the above offenses following a bench trial in the Detroit Recorder's Court. The petitioner was sentenced to life imprisonment on the armed robbery conviction and received a consecutive two-year sentence on the felony firearm conviction.
At trial, Curtis Caldwell testified that on November 27, 1992, he was at a Shell gas station in Detroit, Michigan at approximately 9:50 p.m. Caldwell had purchased some items at the gas station and was preparing to refuel his 1989 Chevrolet Blazer when he was approached by a man whom he later identified as the petitioner. The petitioner pointed a handgun at Caldwell and proceeded to take seven dollars in cash and the keys to the Blazer from Caldwell. The petitioner then ordered Caldwell to run. As Caldwell was running away, the petitioner shot at him twice. The petitioner then got into Caldwell's Blazer and drove away. All of Caldwell's personal identification was inside of the Blazer at the time of the robbery.
Approximately two and a half months later, on January 28, 1993, the petitioner was stopped by the police in Vassar, Michigan on an unrelated receiving and concealing stolen property charge. At the time of the police stop, the petitioner was driving a 1986 Chevrolet Blazer that was registered in his name. When asked for identification, the petitioner told the police that his name was Curtis Caldwell and gave the police Caldwell's identification. After searching the petitioner's vehicle, the police recovered a .25 caliber automatic pistol. This weapon did not match the description of the firearm used in the robbery on November 27, 1992.
On February 15, 1993, the petitioner was brought to Detroit and placed in a live lineup by the Detroit police. Curtis Caldwell positively identified the petitioner as being his assailant. The petitioner was then returned to Tuscola County, Michigan on unrelated charges. It was not until September 22, 1993 that he was formally charged with armed robbery, felony firearm, and unlawfully driving away an automobile.
The trial judge, sitting without a jury, found the petitioner guilty of armed robbery and felony firearm, but not guilty of unlawfully driving away an automobile. In her findings of fact, the trial judge found that the petitioner's lineup was not overly suggestive, despite the fact that the police informed Caldwell prior to the lineup that the person who robbed him was one of the persons in the lineup. The trial court also noted that the petitioner's possession of Caldwell's identification papers tended to corroborate the complainant's lineup identification of the petitioner as being the assailant, although the court acknowledged that in and of itself, that would not be sufficient to convict. However, the court also observed that the petitioner was arrested while driving a 1986 Chevrolet Blazer and that a handgun was seized from the vehicle subsequent to the petitioner's arrest. The trial court mentioned these two facts because they purportedly tended to support a finding that the petitioner would use a weapon and might have need for a Chevrolet Blazer or parts from a Blazer. The court concluded that the corroborating evidence supported the identification of the petitioner as being the perpetrator. Trial Tr. at 69-72.
The petitioner's conviction was affirmed on appeal. People v. Bowie, No. 177549 (Mich.Ct.App. July 2, 1996), lv. denied, 454 Mich. 885, 562 N.W.2d 202 (1997). Thereafter, he filed a post-conviction motion for relief from judgment pursuant to Michigan Court Rule 6.500, et. seq., which was denied by the trial court on January 21, 1999. The petitioner acknowledged that he never appealed the denial of this post-conviction motion to the Michigan appellate courts. Instead, he filed his petition for writ of habeas corpus.
The pro se petition raises several issues which are not clearly delineated. Because the petitioner has not framed his issues with precision, the Court will paraphrase the claims raised by the petitioner in his application for habeas relief as follows:
I. The petitioner was denied due process and his right to a speedy trial because of the delay in arresting and charging the petitioner with this offense.
II. The trial court erred on the morning of trial by denying the petitioner's motion for reconsideration of the court's earlier ruling denying a motion to dismiss for lack of a speedy trial, the motion to allow defense counsel to withdraw, the motion to withdraw the earlier waiver of jury trial, the motion for a jury trial, and the motion for leave to file an interlocutory appeal.
III. The petitioner was denied the effective assistance of counsel. Additionally, the trial court failed to conduct an inquiry into the alleged breakdown in the attorney-client relationship prior to denying the motion to allow defense counsel to withdraw.
IV. The trial court's findings of facts were clearly erroneous, where the trial court made impermissible inferences by considering unrelated offenses in order to find the petitioner guilty of the armed robbery and felony-firearm charges.
V. At the time of sentencing, the petitioner informed the trial court that he was not guilty of this offense, as it was "not in his habit to rob minorities" and he was "hurt spiritually and mentally because he couldn't prove his innocence."
In his supplemental answer to the amended petition, the respondent contends that the petitioner's claims are procedurally defaulted because the petitioner never appealed the denial of his motion for post-conviction relief. However, the petitioner's first and fourth claims were raised in his direct appeal to the Michigan Court of Appeals and the Michigan Supreme Court, as were portions of the allegations of ineffective assistance of counsel contained in the third claim. These claims are not procedurally defaulted and are properly before this Court.
II.
The rest of the petitioner's claims were raised in the state court only in the petitioner's unappealed post-conviction motion. The doctrine of exhaustion of state remedies requires state prisoners to present their claims to the state courts before raising them in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845. Thus, state prisoners in Michigan must present their claims to the Michigan Court of Appeals and the Michigan Supreme Court before presenting them in a federal habeas corpus petition. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir. 1973).
As noted above, the petitioner never appealed the denial of his post-conviction motion to any Michigan appellate court; therefore the petitioner has not satisfied the exhaustion requirement by raising his claims at all levels of state court review. Exhaustion of state remedies entails "presenting the legal and factual substance of every claim to all levels of state court review." Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987).
But failure to exhaust bars review only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner no longer has an effective state remedy to exhaust because the deadline for appealing the trial court's decision has expired. See Mich. Ct. R. 6.509, 7.205(F)(3), 7.302(C)(3) (requiring applications for leave to appeal 6.500 motion denials to be filed within one year in the court of appeals, and applications in the Michigan Supreme Court to be filed within fifty-six days of the decision made by the court of appeals).
The petitioner cannot restart the appellate process by filing a new post-conviction motion raising the same issues because the Michigan Court Rules prohibit filing multiple motions for relief from judgment which raise issues already presented in a previous motion unless the petitioner alleges a retroactive change in the law. See Mich. Ct. R. 6.508(D)(2), 6.502(G)(1); Hudson v. Martin, 68 F. Supp.2d 798, 800 (E.D.Mich. 1999) (citing Ambrose v. Recorder's Court Judge, 459 Mich. 884, 587 N.W.2d 282 (1998)). Since the state trial court has ruled on the petitioner's claims, refiling these claims in the trial court for the purpose of running the complete state gamut would not be allowed. See Mich. Ct. R. 6.502(D)(2) (relief from judgment may not be granted when a post-conviction motion alleges grounds for relief that were decided against defendant in prior motion or appeal unless a retroactive change in the law undermined prior decision).
Thus, the petitioner is barred from pursuing an otherwise available state court remedy, and his claims must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161 (1996).
The evaporation of state procedural remedies caused by the passage of time will not completely excuse a prisoner's failure to avail himself of them, however. The Court may review a prisoner's procedurally defaulted claims on the merits only if he shows cause for not raising his claims at all levels of state court review and prejudice, or that he is actually innocent of the crimes for which he was convicted. Hannah v. Conley, 49 F.3d 1193,1195-96 1196 n. 3 (6th Cir. 1995) (citing Coleman, 501 U.S. at 750, and Murray v. Carrier, 477 U.S. 478, 496 (1986)). See also Mohn v. Bock, 208 F. Supp.2d 796, 801 (E.D.Mich. 2002).
To establish "cause," a petitioner must show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Objective impediments may include an unavailable claim, some interference by officials, and ineffective assistance of counsel. Id.
In the present case, the petitioner has failed to offer adequate reasons to excuse his procedural default. In his amended petition, the petitioner asserts that after the trial court denied his motion for relief from judgment, he attempted to file a motion for reconsideration but was unable to obtain the needed alibi witness affidavits within the time limit for him to file such a motion with the trial court. The petitioner contends that as a result, no further appeals were available to him. He further alleges that he was unable to retain an attorney to assist him with his post-conviction attack.
None of these explanations provides cause for the default. With respect to the first reason offered by the petitioner, the Michigan Court Rules do not require a defendant to file a motion for reconsideration with the trial court following the denial of a motion for relief from judgment prior to filing an appeal in the Michigan appellate courts. Therefore, the petitioner's argument that no further appeals were available to him is unavailing. The Court also cannot accept the argument that the petitioner's inability to retain an attorney excused his procedural default, as there is no right to the assistance of an attorney in post-conviction proceedings. Carr v. Singletary, 904 F. Supp. 1356, 1360 (M.D.Fla. 1995) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). Because the petitioner has not demonstrated any cause for his procedural default, it is unnecessary for this Court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986).
As noted above, a prisoner may overcome his procedurally defaulted claims, even in the absence of "cause and prejudice," by producing new and reliable evidence of actual innocence. Lott v. Coyle, 261 F.3d 594, 620 (6th Cir. 2001) (citing Schlup v. Delo, 513 U.S. 298, 314-15 (1995), and Herrera v. Collins, 506 U.S. 390, 417 (1993)). The petitioner here has not presented the Court with any new evidence of actual innocence, although he claims that he did not commit the crimes and further suggests that he may have had an alibi defense. However, the petitioner does not suggest what the alibi was nor does he give the Court any other information to assess his possible innocence. "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. The petitioner has not supported his claims with new reliable evidence. The Court concludes that the "actual innocence" exception does not apply here.
The Court concludes, therefore, that the petitioner's second and fifth claims, together with the portion of the petitioner's third claim which deals with an alleged breakdown in the relationship between himself and his attorney, are procedurally defaulted.
II.
The petitioner's remaining claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act 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. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, 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 for habeas cases:
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). 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, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("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."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
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, 529 U.S. 362, 405, 406 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the 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 409. 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 409, 410, 411. See also Lewis v. Wilkinson, No. 00-3523, 2002 WL 31235052 (6th Cir. Oct. 7, 2002). A. The petitioner contends that his right to due process was violated because of the eight-month delay between the time of his arrest on unrelated charges in Tuscola County, Michigan on January 28, 1993 (followed shortly thereafter by the lineup identification), and the time that he was actually charged with this offense on September 22, 1993. The petitioner also claims that his Sixth Amendment right to a speedy trial was violated by this delay.
Prior to trial, the petitioner's counsel filed a motion to dismiss on these grounds in the trial court. The prosecution did not dispute any of the dates contained in the motion to dismiss, but contested the petitioner's claim of prejudice arising from the delay. At a hearing on the motion held on December 3, 1993, the petitioner's counsel sought to make an offer of proof by having the petitioner testify that he was somewhere else when the crime was committed, that any alibi witnesses that he may have had could no longer be located, and that even if such alibi witnesses could be found, their memories would be impaired. The trial court refused the offer and denied the motion on December 10, 1993. In denying the motion, the trial court found that the length of the delay was not extraordinary. The trial court also found that the reason for the delay was "bureaucratic," in that the petitioner had been returned to Tuscola County following his lineup in Detroit, and that the delay was therefore not motivated by bad faith. The court also found that the petitioner had not established that he was prejudiced by the delay, observing that the petitioner was on notice at the time of his arrest and lineup that he might be charged with these offenses and that he therefore should have taken precautions to locate any witnesses that he might have.
The Michigan Court of Appeals likewise rejected the petitioner's claim, finding that the petitioner had not presented any evidence of his attempts to locate the alibi witnesses or any difficulties that he may have encountered in attempting to find them. The court of appeals also observed that the petitioner was on notice from the time that he was positively identified in the lineup that he might be charged with this crime and therefore could have contacted his witnesses at that time. People v. Bowie, Slip. Op. at *2.
Proof of prejudice is generally a necessary element of a due process claim involving preindictment delay. United States v. Lovasco, 431 U.S. 783, 790 (1977). The Sixth Circuit has consistently read Lovasco to hold that dismissal for preindictment delay is warranted only when the defendant shows both substantial prejudice to his right to a fair trial and that the delay was intentionally imposed by the government to gain a tactical advantage. See United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992). The prosecution of a defendant following an investigative delay does not deprive him of due process, even if his defense is somewhat prejudiced by the lapse of time. Lovasco, 431 U.S. at 796.
The petitioner's claim fails here for several reasons. First, the petitioner has presented no evidence to this Court that the eight-month delay was an intentional device used by the prosecution to gain tactical advantage. Indeed, the trial court found that the delay was not intentional and appeared to be merely "bureaucratic," in that the petitioner was returned to Tuscola County following his lineup in Detroit to face unrelated charges. The Court accepts this factual finding. See 28 U.S.C. § 2254(e)(1).
Second, the petitioner has failed to demonstrate that he was substantially prejudiced by this delay. The petitioner claims that because of this delay, he was unable to locate alibi witnesses to support his alibi defense. The petitioner has never indicated where he was at the time of the armed robbery, nor has he listed the names of any alibi witnesses who were no longer available. Although it is true that the state trial court did not afford the petitioner an opportunity to make an offer of proof, the petitioner has never provided the substance of his alibi defense or identified his alibi witnesses in his brief on appeal to the Michigan Court of Appeals, in his application for leave to appeal to the Michigan Supreme Court, in his post-conviction motion for relief from judgment (where he raised the issue again), in either his original or amended petition for writ of habeas corpus, or in his traverse to the respondent's answer. The petitioner has also never presented any evidence to show what steps, if any, he took to locate these witnesses.
A defendant must make more than a vague assertion that memories have diminished, witnesses have been lost, and documents have been misplaced to establish actual prejudice from a preindictment delay. United States v. Beszborn, 21 F.3d 62, 67 (5th Cir. 1994); United States v. Mask, 154 F. Supp.2d 1344, 1348 (W.D.Tenn. 2001). When the claimed prejudice from a preindictment delay is the unavailability of a witness, courts usually require that the defendant identify the witness that would have been called, show, with specificity, the expected content of the witness' testimony, establish to the court's satisfaction that the defendant has made serious attempts to find the witness, and finally, demonstrate that the information that the witness would have provided was not available from other sources. Jones v. Angelone, 94 F.3d 900, 908 (4th Cir. 1996). The petitioner's allegations in this case do not meet this standard. Bald assertions of the loss of unknown alibi witnesses do not support a finding of prejudice for purposes of preindictment delay. See United States v. Scott, 795 F.2d 1245, 1250 (5th Cir. 1986); see also United States v. Medina-Arellano, 569 F.2d 349, 353 (5th Cir. 1978) (finding defendant's speculative allegation of prejudice that the preindictment delay deprived him of a "possible alibi defense" entitled to "little weight" in determining whether the delay violated the due process clause). The petitioner has not established a violation of the Due Process Clause in his first claim.
Nor has the petitioner's related Sixth Amendment speedy trial right been violated. Sixth Amendment speedy trial rights generally do not attach until the defendant is arrested and charged with a crime. United States v. MacDonald, 456 U.S. 1, 7 (1982). At that point, to determine whether a speedy trial violation has occurred, the court must consider the following four factors: (1) the length of the delay between arrest and trial, (2) the reason for the delay, (3) the defendant's assertion of his speedy trial right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor is determinative; rather the Court must engage in a "difficult and sensitive balancing process" to determine whether a constitutional violation has occurred. Id. at 533.
The initial focus must be on the length of delay, because "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. The accused therefore must allege that the interval between the accusation and the trial has crossed the threshold dividing ordinary from presumptively prejudicial delays. Doggett v. United States, 505 U.S. 647, 651-652 (1992). Courts have generally found post-conviction delays that approach one year to be "presumptively prejudicial." Id. at 652 n. 1; United States v. Brown, 90 F. Supp.2d 841, 846 (E.D.Mich. 2000).
In the present case, only six months elapsed from the time that the petitioner was charged to the commencement of his trial. Such a delay is not presumptively prejudicial. See Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998) (finding an eight-month delay insufficient to presume prejudice). The petitioner has therefore failed to establish a presumption of prejudice; it is unnecessary for the Court to inquire into the other Barker factors. Moreover, nothing in the record indicates a "willful attempt" by the prosecution to delay the trial. Davis v. McLaughlin, 122 F. Supp.2d 437, 443 (S.D.N.Y. 2000). Nor is there any evidence that the state intentionally delayed the trial to gain a tactical advantage over the petitioner. Castro v. Ward, 138 F.3d 810, 820 (10th Cir. 1998).
There was no delay in this case that amounted to a violation of the petitioner's federal constitutional rights.
B.
In the exhausted portion of the third claim, the petitioner alleges that he was deprived of the effective assistance of counsel. 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 constitutionally 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 the defendant by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the 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. at 690. 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 (6th Cir. 1996).
1.
The petitioner first contends that his trial attorney was ineffective for raising the pretrial delay issue as a speedy trial issue rather than as a due process violation in his motion to dismiss at the trial court level. The petitioner's argument fails because although his trial counsel raised the issue under the Sixth Amendment right to a speedy trial, his attorney made the same factual arguments that were later advanced by appellate counsel when raising the due process issue before the Michigan Court of Appeals. Moreover, the Michigan Court of Appeals agreed to review the petitioner's due process claim on appeal, despite the fact that the petitioner's attorney raised his claim as a speedy trial issue at the trial court level. Finally, in light of this Court's finding that the petitioner is unable to establish that he was prejudiced by the delay between his arrest on unrelated charges and his arrest and charges in this case, the petitioner cannot establish that he was prejudiced by counsel's failure to raise this issue as a due process preindictment delay claim in the trial court. See United States v. Daniels, 558 F.2d 122, 126 (2d Cir. 1977) (defense counsel's failure to pursue issue of preindictment delay did not deny defendant the effective assistance of counsel, in view of the fact that there was no showing of prejudice to the defendant as a result of the delay).
2.
The petitioner next contends that his attorney was ineffective for failing to object to the following remarks made by the prosecutor in closing argument, which he claims shifted the burden of proof to the petitioner and denigrated defense counsel:
[N]ow, I was wondering how Mr. Schwartz [the defense attorney] was going to explain all that away. I mean a person of remarkable experience in this Court would make you believe, if he was [ sic] talking about Attila the Hun, he would say that he had an active outdoor life; or Mussolini made the trains run on time. You can say something good about anybody; you know, that Mr. Bowie was a victim of circumstance. I would say, unequivocally, at this point, had it been one on one, then it would have been a question of who [ sic] do you believe. But he is caught with the I.D. that was stolen from the robbery, in his possession, three months later. That is corroboration. How did he get it, unless he took it?
Trial Tr. at 66.
These isolated comments do not rise to the level of constitutionally impermissible misconduct warranting habeas relief, particularly since the petitioner had a bench trial. See Matthews v. Abramajtys, 92 F. Supp.2d 615, 642 (E.D.Mich. 2000). In a bench trial, a reviewing court presumes that a trial court was not influenced by improper evidence presented to it. See United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000) (internal citations omitted). Moreover, the petitioner has failed to show that there was anything improper about the prosecutor's comments. Although a prosecutor may not comment on the failure of a defendant to produce evidence, the prosecutor may summarize the evidence and comment on its quantitative and qualitative significance. United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994); see also Byrd v. Collins, 209 F.3d 486, 534 n. 41 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001). In the present case, the prosecutor's rhetorical question as to how the petitioner could have otherwise obtained the victim's identification, implying that it must have been taken during the robbery, was not an improper attempt to shift the burden of proof to the petitioner; the argument merely pointed out a glaring problem with the petitioner's claim of innocence. There was no good reason for trial counsel to object, and his failure to do so was not ineffective.
3.
The petitioner next contends that his attorney was ineffective for failing to challenge the improper inferences made by the trial court in its findings of fact based on "other acts" evidence used to support the finding of guilt. However, the Michigan Court of Appeals reviewed the issue on appeal and found that the trial court's findings of facts were proper. People v. Bowie, Slip. Op. at *2. The failure of counsel to preserve objections to an issue is not prejudicial where the state appellate court considers the petitioner's claim on appeal. See Hartey v. Vaughn, 186 F.3d 367, 373 (3d Cir. 1999). Because the state court of appeals determined that the trial court properly considered the use of facts surrounding his arrest on unrelated charges in its decision, the petitioner is unable to show that he was prejudiced by counsel's failure to object to the factual findings.
4.
The petitioner next alleges that his attorney was ineffective for failing to object to the scoring of the sentencing guidelines range in his case. Specifically, the petitioner contends that the trial court incorrectly scored Prior Record Variable (PRV) 2 of the Michigan Sentencing Guidelines at 25 points by finding that the petitioner had two prior low-severity convictions. He argues that one of his prior convictions, a December 1993 conviction for receiving and concealing stolen property, postdated the instant offenses and should not have been scored. Had it not been counted, his offense level would have been 10 points and his guidelines range would have been reduced from 120-months-to-life to 60-to-300-months.
To establish a claim of ineffective assistance of counsel in the sentencing context, a habeas petitioner must show that (1) counsel's representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, absent counsel's unprofessional errors, the sentence imposed would have been different. United States v. Harris, 894 F. Supp. 20, 26 (D.D.C. 1995).
On direct review in this case, the Michigan Court of Appeals agreed that it was erroneous to count the petitioner's December 1993 receiving and concealing stolen property conviction as a prior conviction under PRV 2. However, that court also said that the trial court should have properly categorized this offense as a "concurrent or subsequent felony conviction" under PRV 7. The court of appeals concluded that if the trial court had properly scored this conviction under PRV 7 and not under PRV 2, the recommended minimum sentence would have remained the same and the sentencing guidelines range would not have changed. People v. Bowie, Slip. Op. at *1-2. The petitioner, therefore, was not deprived of review of the underlying issue by the state appellate court, and he is unable to establish any prejudice flowing from his attorney's failure to object to the sentencing guideline scoring error in the trial court.
5.
The petitioner finally asserts that his attorney was ineffective for failing to call alibi witnesses. Unlike the other ineffective assistance of counsel claims, this claim was never presented in his direct appeal and is procedurally defaulted for the reasons states above. However, even assuming that this claim was properly preserved, the petitioner is not entitled to habeas relief because the petitioner has not identified these alibi witnesses or indicated what their proposed testimony would have been. Defense counsel cannot be constitutionally ineffective for failing to interview and subpoena witnesses that do not appear to exist. United States v. Green, 21 F. Supp.2d 521, 525 (D.Md. 1998); see also United States v. Saenz, 923 F. Supp. 1079, 1083 (N.D.Ill. 1996).
The petitioner is not entitled to habeas relief on any of his ineffective assistance of counsel claims. The Court likewise rejects the petitioner's related arguments contained in his second claim and reiterated in his third claim that the trial court erred in failing to permit the petitioner's first attorney to withdraw as counsel. Any error by the trial court in denying a defendant's motion to substitute counsel is rendered harmless if the attorney's performance is constitutionally adequate. See United States ex. rel. Coleman v. Page, 905 F. Supp. 548, 555 (N.D.Ill. 1995). Having found that counsel's representation of the petitioner was not ineffective, this Court concludes that the state trial court did not err in refusing to appoint substitute counsel for the petitioner.
C.
In his fourth claim, the petitioner argues that the trial court made impermissible findings of fact surrounding his 1993 arrest on unrelated charges, namely, the fact that the petitioner was in possession of the victim's identification at the time of the arrest, was driving a Chevrolet Blazer similar to the victim's truck, and also had a handgun in his possession at the time of his arrest that was dissimilar to the weapon used in the armed robbery. In rejecting this argument, the Michigan Court of Appeals noted that it was proper for the trial court to consider this evidence for the purpose of inferring motive, opportunity, intent, preparation, plan, knowledge or identity. People v. Bowie, Slip. Op. at *2.
A state court's factual findings must be sustained unless the petitioner demonstrates by clear and convincing evidence that those findings were erroneous. See 28 U.S.C. § 2254(e)(1). The petitioner has failed to do so here. Although the petitioner argues that the trial court failed to recognize that there could have been an innocent reason for him to have possessed the identification of the robbery victim, the trial court's inference was not unreasonable, and the fact finder's choice between two plausible views of the evidence cannot be clearly erroneous. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 356 (6th Cir. 1997).
The petitioner also contends that the trial court impermissibly relied on evidence that the petitioner was driving a vehicle similar to the one taken in the armed robbery and possessed a handgun at the time of his arrest to infer that the petitioner had committed the armed robbery. However, the Michigan Court of Appeals found that the trial court's findings of fact and evaluation of the evidence was proper, because it was offered to show motive, opportunity, intent, preparation, plan, knowledge or identity. A federal habeas court will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of law. Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989). The inquiry in reviewing a claim of improper admission of other acts evidence is whether the evidence was rationally connected to the crime charged. Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980).
In the present case, the connection between the other acts evidence and the facts of the crime itself was tenuous. Only an imaginative fact finder would conclude that a 1989 Chevy Blazer might be stolen to serve as a source of parts for an older version of the same vehicle model. The possession of a handgun at arrest different from the weapon involved in the robbery, other than establishing a propensity for traveling armed, likewise contributes little to the logical inferences permitted by the record in this case. Nonetheless, the trial judge's conjurings are largely beside the point. Likewise, the state court of appeals' rote recitation of the justifiable purposes of "other acts" evidence catalogued in Michigan Rule of Evidence 404(b), while not particularly helpful or illuminating, does not affect the weight of the properly-considered evidence in the record. The predominating evidence in this case consists of the victim's identification of the petitioner as his assailant, corroborated by the petitioner's possession of the victim's property when arrested. The record, therefore, contains sufficient evidence of guilt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The dubious legitimacy of the trial judge's attempt to draw support from peripheral facts does not diminish the force of the principal evidence or undermine the constitutional validity of the petitioner's conviction.
IV.
The conclusion of the Michigan Court of Appeals that the petitioner's trial was free from prejudicial constitutional defects was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion for reassignment of custody pending adjudication of the petition for writ of habeas corpus [dkt #30] is DENIED.