Opinion
Civil No. 00-70704-DT.
August 18, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Chad Emmett Briggs, ("petitioner"), presently confined at the Handlon Michigan Training Unit in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on one count of arson of a dwelling house, M.C.L.A. 750.72; M.S.A. 28.267. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
The Court summarizes the relevant facts from the Michigan Court of Appeals opinion affirming petitioner's conviction, which are presumed correct on habeas review. United States ex. rel. McDonald v. Page, F. Supp.2d; 2000 WL 1010178, * 1 (N.D. I11. July 19, 2000). However, due to the brevity of the Michigan Court of Appeals' recitation of the facts, the Court will also include facts from petitioner's state court appellate brief to add context. United States ex. rel. Drain v. Washington, 52 F. Supp.2d 856, 860 (N.D. I11. 1999).
The charge against petitioner arose from the burning of a house in Port Huron, Michigan in the early morning hours of December 11, 1995. Four persons inside of the house escaped unharmed. One of the occupants of the house, Daniel Bell, was a member of a gang called "the Hustlers", who were rivals of two gangs known as the "Out Cold Gang" and the "Cash Flow Posse". Although Bell did not know petitioner, he was acquainted with several of his friends who were members of one of these gangs.
Police discovered two sets of footprints at the crime scene. One of the sets of footprints matched the tread design on petitioner's shoes, which were provided to the police. The prosecutor theorized that the other pair of footprints may have belonged to a gang member sent to observe petitioner set the fire as part of a gang initiation ritual. Although no trace of gasoline was found on petitioner's shoes, the librarian at Port Huron High School where petitioner attended classes smelled gasoline on petitioner's coat that morning. Later that morning, two detectives also smelled gasoline on petitioner while interviewing him at the school.
Two witnesses testified that petitioner admitted setting fire to the house, using gasoline and a lighter. One of the witnesses, Michael Dean, indicated that petitioner said to him: "Guess what? I'm going to prison for arson". Petitioner also told Dean that he had started the fire around 2:00 or 3:00 a.m. and was linked to the crime when police followed his footprints. Petitioner took Dean and his girlfriend Angela Jamison to view the fire damage.
Petitioner presented an alibi defense at trial. Petitioner's parents also testified that petitioner used gasoline to clean a used bicycle that he had received as a gift.
Petitioner's conviction and sentence were affirmed on appeal. People v. Briggs, 200703 (Mich.Ct.App. January 19, 1999); lv. den. 604 N.W.2d 683 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The Defendant was denied due process of law when the prosecutor introduced gang profile evidence in an effort to create a theory of motive in this case.
II. The prosecutor introduced testimony of a police witness who vouched for defendant's guilt.
III. Denial of right to a fair sentence where the judge imposed an excessively severe sentence.
IV. Defendant was denied his federal constitutional right to a fair trial when the prosecutor extensively argued a theory of motive which was based upon facts not in evidence.II. STANDARD OF REVIEW 28 U.S.C. § 2254 (d) provides:
(d)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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the U.S. Supreme Court on a question of law or if the state court decides a case differently than the U.S. Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a U.S. Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). 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 1522.
III. DISCUSSION
A. Claims # 1, 2, and 4. Petitioner's prosecutorial claims are procedurally defaulted and without merit.
For the purpose of judicial economy, petitioner's three prosecutorial misconduct claims will be addressed together.
In affirming petitioner's conviction, the Michigan Court of Appeals noted that because petitioner had failed to object to any of the alleged prosecutorial misconduct, the Court of Appeals would examine the issue only for manifest injustice. Finding none in this case, the Michigan Court of Appeals upheld petitioner's conviction. Respondent now contends that petitioner is procedurally defaulted from bringing these claims. This Court agrees.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751 (1991).
If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
In this case, the Michigan Court of Appeals clearly indicated that by failing to object at trial, petitioner had not preserved the issues regarding the alleged prosecutorial misconduct. Petitioner has not attempted to explain his state procedural default. Because petitioner has not demonstrated any cause for his procedural default, it is unnecessary for this Court to reach the prejudice issue. Additionally, petitioner has not presented any new reliable evidence to support any assertion of innocence which would allow this Court to consider this ground for a writ of habeas corpus in spite of the procedural default. The Michigan Court of Appeals' limited review of the unobjected to remarks for a miscarriage of justice does not constitute a waiver of the procedural default by the State of Michigan. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). This Court finds that petitioner has procedurally defaulted with respect to his claims of prosecutorial misconduct.
Even assuming that petitioner had established cause for his default, he is unable to satisfy the prejudice prong of the exception to the procedural default rule. The cause and prejudice exception is conjunctive, requiring proof of both cause and prejudice. Cosme v. Elo, 2000 WL 246592, * 3 (E.D. Mich. February 4, 2000)(Cohn, J.). The allegations of misconduct would not entitle petitioner to habeas relief.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for a prosecutor's statements or conduct must be viewed in context and only in doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial. United States v. Young, 470 U.S. 1, 11 (1985). Moreover, because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985)(Cohn, J.). In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra v. Michigan Department of Corrections, 4 F.3d at 1355-1356.
Petitioner first claimed that the prosecutor introduced gang profile evidence to support a motive for petitioner to commit the arson. Gang affiliation is particularly relevant and has been held admissible in cases where the interrelationship between people is a central issue. United States v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999); cert. den. 120 S.Ct. 592 (1999). In this case, there was some evidence that petitioner was friends with persons who were members of a rival gang of one of the occupants of the house that was set on fire. Where evidence of gang membership is relevant to a common motive and plot, habeas relief is not appropriate. See United States ex. rel. Gonzalez v. DeTella, 918 F. Supp. 1214, 1223 (N.D. I11. 1996). Because evidence of petitioner's gang affiliation was relevant to motive, petitioner is not entitled to habeas relief on this claim.
Petitioner's related claim that the prosecutor improperly argued in closing argument that petitioner was a member of a gang when no evidence had been presented to establish this fact must also be rejected. The state court prosecutor's reference to petitioner's involvement with a gang, even if their was a lack of evidence in the record to support this argument, was not so egregious as to violate due process, in order to obtain habeas relief. See Noble v. Kelly, 89 F. Supp.2d 443, 463-464 (S.D.N.Y. 2000). In any event, evidence was presented through Detective Maurey that petitioner was associated with a gang, although Maurey also indicated that petitioner was not an actual member. Even if the detective's statements regarding petitioner's alleged gang affiliation were based on hearsay, petitioner would not be entitled to habeas relief because admission of this testimony was harmless error in light of the evidence against him. See United States ex. rel. White v. O'Leary, 663 F. Supp. 233, 237 (N.D. I11. 1987).
Petitioner also claims that the prosecutor introduced the testimony of a police witness who vouched for petitioner's guilt. Detective Paul Reid testified that based upon their investigation and interview of several persons, including petitioner, the police believed that they had identified the suspect and submitted the case to the prosecutor for review, who issued a warrant. Petitioner also claims that Detective Reid testified that petitioner committed this crime through the use of hearsay evidence in the form of the anonymous tip that he received from Angela Jamison.
Although a police officer may not testify as to his or her opinion as to petitioner's guilt or innocence, See Dubria v. Smith, 197 F.3d 390, 400 (9th Cir. 1999); reh. en banc granted 205 F.3d 1201 (9th Cir. 2000), the statement was made in passing and was not held out as authoritative or as an expert opinion on petitioner's guilt to the arson charge. See United States v. Newman, 49 F.3d 1, 7 (1st Cir. 1995). Moreover, Detective Reid's testimony was not brought up again or in the prosecutor's closing argument and the trial court instructed the jury that the fact that petitioner had been charged and was on trial was not evidence of his guilt. Under the circumstances, Detective Reid's testimony constituted harmless error at best. See Saade v. Trippett, 28 F.3d 1214, 1994 WL 362106, * 10 (6th Cir. July 12, 1994). Lastly, even if Detective Reid's testimony regarding how petitioner was identified as a suspect contained inadmissible hearsay, the Court will deny habeas relief because the effect or influence that it may have had on the jury was not substantial or injurious in light of the evidence presented against petitioner at trial. United States ex. rel. Gonzalez v. DeTella, 918 F. Supp. at 1224. Petitioner is not entitled to habeas relief on these claims.
B. Claim #3. Petitioner is not entitled to habeas relief for the challenge to the length of his sentence.
Petitioner lastly claims that his sentence often (10) to twenty (20) years was excessive.
A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999)(Gadola, J.). Arson of a dwelling house is punishable by a sentence of up to twenty years in prison. M.C.L.A. 750.72; M.S.A. 28.267. Because petitioner's sentence was within the statutory limits for arson, this Court will not set the sentence aside. See Welch v. Burke, 49 F. Supp.2d 992, 1009 (E.D. Mich. 1999)(Cleland, J.); Colon v. Smith, 2000 WL 760711, * 6 (E.D. Mich. May 8, 2000).
The U.S. Constitution does not require that sentences be proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin, 501 U.S. at 1001. Federal courts will therefore not engage in a proportionality analysis except where the sentence imposed is death or life imprisonment without parole. Seeger v. Straub, 29 F. Supp.2d 385, 392 (E.D. Mich. 1998)(Tarnow, J.). Petitioner's claim that his sentence is disproportionate under Michigan law would not state a claim upon which habeas relief can be granted. Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994)(Gadola, J.). In any event, this Court would agree with the Michigan Court of Appeals that a sentence often (10) to twenty (20) years in prison was not excessive, in light of the fact that petitioner set fire to a house in the early morning hours, almost causing the death of four persons.
Petitioner's related claim that the trial court improperly departed above the sentencing guidelines range would not entitle him to relief Welch v. Burke, 49 F. Supp.2d at 1009. Petitioner has no state created liberty interest in having the Michigan sentencing guidelines applied rigidly in determining his sentence. Thomas v. Foltz, 654 F. Supp. 105, 106-107 (E.D. Mich. 1987)(Cohn, J.). To the extent that petitioner is claiming that his sentence violates the Michigan state sentencing guidelines, his claim is not cognizable in a habeas proceeding because it is a state law claim. Id. Petitioner has failed to state a claim upon which habeas relief can be granted.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.