Opinion
Case No. 01-CV-70772-DT
October 31, 2001
REPORT AND RECOMMENDATION
I. RECOMMENDATION
II. REPORT
A. Procedural History
B. Procedural Default
C. Standard of Review
D. Claims I V: Ineffective Assistance of Counsel
1. Clearly Established Law
2. Trial Counsel
a. Whether This Claim is Cognizable
b. Whether Counsel Was Ineffective
3. Appellate Counsel
E. Claim II: Involuntary Confession
1. Clearly Established Law
2. Analysis
F. 1. Clearly Established Law
2. Analysis
a. Vouching
b. Arguing Facts Not in Evidence
c. Referring to Petitioner as a Violent Person
G. Claim IV: Double Jeopardy
1. Clearly Established Law
2. Analysis
H. Conclusion
III. NOTICE TO PARTIES REGARDING OBJECTIONS
I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.
II. REPORT:
A. Procedural History
1. Petitioner William Bedford Brown is a state prisoner, currently confined at the Gus Harrison Correctional Facility in Adrian, Michigan.
2. On July 27, 1990, petitioner was convicted of one count of first degree felony murder, MICH. COMP. LAWS § 750.316, following a jury trial in the Detroit Recorder's Court. Petitioner was thereafter sentenced to a mandatory term of nonparolable life imprisonment.
3. Petitioner appealed as of right to the Michigan Court of Appeals, which remanded the case to the trial court for a hearing on petitioner's ineffective assistance of counsel claim. Following the trial court's rejection of his claim, petitioner raised the following claims on appeal:
I. THE TRIAL COURT CLEARLY ERRED IN RULING AT THE REMAND HEARING THAT DEFENDANTS TRIAL COUNSEL WAS EFFECTIVE, DESPITE COUNSEL'S FAILURE TO MOVE TO SUPPRESS DEFENDANT'S STATEMENTS ON THE GROUND THAT THEY WERE THE DIRECT FRUIT OF AN ILLEGAL INVESTIGATORY ARREST.
II. DEFENDANTS STATEMENTS SHOULD HAVE BEEN SUPPRESSED WHERE THEY WERE INVOLUNTARILY MADE.
III. DEFENDANT WAS DENIED A FAIR TRIAL WHERE THE PROSECUTOR, DURING CLOSING ARGUMENT, VOUCHED FOR THE CREDIBILITY OF A WITNESS, ARGUED MATTERS NOT IN EVIDENCE AND VOUCHED FOR THE POLICE INVESTIGATION.
The court of appeals found no merit in petitioner's claims, and affirmed his conviction and sentence. See People v. Brown, No. 134320 (Mich.Ct.App. Aug. 18, 1994) (per curiam) [hereinafter "Ct. App. op."].
4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied leave to appeal in a standard order. See People v. Brown, 448 Mich. 922, 533 N.W.2d 587 (1995).
5. Petitioner filed a motion for relief from judgment in the trial court, raising a number of claims, including claims that his trial, after a previous mistrial had been declared, violated to his right to be free from double jeopardy, and that his appellate counsel was ineffective. The trial court denied the motion. Petitioner sought leave to appeal the double jeopardy and appellate counsel issues to both the Michigan Court of Appeals and the Michigan Supreme Court. Both courts denied petitioner's applications for leave to appeal because petitioner had "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Brown, 623 N.W.2d 597, 597 (Mich. 2001); People v. Brown, No. 223104 (Mich.Ct.App. May 4, 2000).
6. Petitioner, proceeding pro se, filed the instant petition for habeas corpus on February 27, 2001. As grounds for issuance of the writ he asserts the ineffective assistance of trial counsel, involuntary confession, prosecutorial misconduct, double jeopardy, and ineffective assistance of appellate counsel claims that he raised in the state courts.
7. Respondent filed his answer on September 10, 2001. He contends that: (1) petitioner's ineffective assistance of trial counsel claim is not cognizable; (2) petitioner's involuntary confession and prosecutorial misconduct claims are without merit; and (3) petitioner's double jeopardy and ineffective assistance of appellate counsel claims are barred by petitioner's procedural default in the state courts.
B. Procedural Default
Respondent contends that petitioner's fourth and fifth claims are barred by petitioner's procedural default in the state courts. Under the procedural default doctrine, a federal habeas court will not review a question of federal law if the state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, "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 the procedural bar." Harris, 489 U.S. at 263. Furthermore, "only a "firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review . . . of a federal constitutional claim." Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); see also, Calderon v. United States Dist. Ct. for the E. Dist. of Cal., 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotation omitted) ("For the procedural default doctrine to apply, a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default.").
Petitioner presented his double jeopardy and appellate counsel claims in his motion for relief from judgment. Michigan Court Rule 6.508, governing motions for relief from judgment, provides that the movant "bears the burden of establishing entitlement to relief." MICH. CT. R. 6.508(D). The rule goes on to provide, in three separately numbered paragraphs, procedural situations in which relief will not be granted: (1) where an appeal relating to the conviction is pending; (2) where the claim has already been ruled upon in a prior appeal or postconviction motion; and (3) where the claim could have been raised in a prior appeal or postconviction motion but was not. See MICH. CT. R. 6.508(D)(1)-(3).
Here, the Michigan Supreme Court rejected petitioner's appeal based on his "fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Brown, 623 N.W.2d 597, 597 (Mich. 2001). Looking at the structure of Rule 6.508(D), it would appear that this language indicates that petitioner failed to meet the substantive burden of entitlement to relief, rather than failed to comply with one of the procedural aspects of the rule. This, in turn, would not constitute an invocation of a state procedural default barring habeas review of petitioner's claims. The Sixth Circuit, however, has held differently, concluding that this identical language constitutes an invocation of the procedural aspects of Rule 6.508(D), and thus bars federal habeas review. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir. 2000).
Were Simpson the last word on the matter, this Court would of course be bound to follow the Sixth Circuit's holding. A recent decision by the Michigan Supreme Court, however, has rendered Simpson obsolete. In People v. Jackson, 633 N.W.2d 825 (Mich. 2001), the court held that the Michigan Court of Appeals's use of the identical phrase — "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)" — indicated a decision by the court on the merits of the claims, rather than an invocation of the procedural bar contained in Rule 6.508 (D)(3). See Jackson, 633 N.W.2d at 833-34 n. 10. Thus it is now clear that the Michigan courts view the language used in petitioner's case not as an invocation of a procedural rule, but as a decision on the merits. Because the purpose of the procedural default doctrine is to respect the state court's applications of its own rules, it is the Michigan Supreme Court's interpretation of its own language that controls here, and not Simpson. Accordingly, the Court should conclude that petitioner's double jeopardy and appellate counsel claims are not barred by a procedural default.
C. Standard of Review
Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing:
(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).
The Supreme Court recently explained the operation of § 2254(d)(1). In Williams v. Taylor, 120 S.Ct. 1495 (2000), the Court explained that "the `contrary to' and `unreasonable application' clauses [have] independent meaning." Id. 1519. With respect to the "contrary to" clause, the Court explained that a state court decision will be contrary to clearly established law in two situations. First, "a state-court decision will certainly be contrary to . . . clearly established precedent if the state applies a rule that contradicts the governing law set forth in [the Court's] cases." Id. Second, "a state-court decision will also be contrary to [the] Court's clearly established precedent if that state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 1519-20. "On the other hand, a run-of-the-mill state court decision applying the correct legal rule from [the Court's] cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s "contrary to' clause." Id. at 1520 Such a case is therefore governed by the "unreasonable application" language of§ 2254(d)(1).
The following discussion comes from Part H of Justice O'Connor's opinion in Williams. Although Justice Stevens wrote the opinion for the Court in several other respects, Part II of his opinion, in which he discusses the standard or review under § 2254(d)(1), was joined only by three other Justices (Justices Souter, Ginsberg, and Breyer). Part II of Justice O'Connor's opinion, also discussing the standard of review, was joined by four other Justices (Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas). Thus, Justice O'Connor's opinion constitutes the opinion of the Court with respect to the standard of review under the AEDPA (except for one footnote, citing to legislative history, in which Justice Scalia did not join).
With respect to the "unreasonable application" language, the Court provided somewhat less guidance. The Court did reject the subjective "not debatable among reasonable jurists" standard that had been adopted by a number of Courts of Appeals. See Id. at 1521-22. And the Court clarified that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522. Beyond that however, the Court simply noted that "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," Id. at 1521, and explained that "[t]he term `unreasonable' is no doubt difficult to define. That said, it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning." Id. at 1522; cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.) (noting that "obscenity" is hard to define "[b]ut I know it when I see it.").
By its terms, § 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with "clearly established federal law as determined by the Supreme Court." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 120 S.Ct. at 1523. Further, the "phrase refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision." Id. However, the Supreme Court need not have decided a factually identical case for the law to be "clearly established;" rather, the law is clearly established to the extent that the relevant Supreme Court precedent fairly can be said to require a particular result or a particular mode of analysis given the facts and legal claims involved in the petitioner's case, regardless of whether the Supreme Court has decided the precise issue presented. See Id. at 1512 (internal quotation and citation omitted) (that a particular test "of necessity requires a case-by-case examination of the evidence obviates neither the clarity of the rule nor the extent to which the rule must be seen as "established' by [the] Court.").
This does not mean, however, that the decisions of lower federal courts are entirely irrelevant. First of all, this Court is bound by pertinent decisions of the United States Court of Appeals for the Sixth Circuit. See Timmreck v. United States, 577 F.2d 372, 374 n. 6 (6th Cir. 1978), rev'd on other grounds, 441 U.S. 780 (1979); Conrad v. Rofin-Sinar, Inc., 762 F. Supp. 167, 172 (E.D. Mich. 1978). Thus, to the extent that the Sixth Circuit has held that certain Supreme Court cases "clearly establish" federal law in certain respects, this Court is bound by those determinations, regardless of whether this Court would interpret the Supreme Court precedent differently. Further, although the federal court is limited to Supreme Court precedent in determining whether a particular right is clearly established, "[t]o the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue." O'Brien v. DuBois, 145 F.3d 16, 25 (1st Cir. 1998).
This language is from Part III of Justice Stevens's opinion, which was joined by a majority of the Court.
D. Claims I V: Ineffective Assistance of Counsel
Petitioner first raises two ineffective assistance of counsel claims. Specifically, he claims that his trial counsel was ineffective for failing to move to suppress his statement to the police on the ground that the statement was the direct result of an illegal arrest, and that his appellate counsel was ineffective for failing to raise his double jeopardy claim on direct appeal.
1. Clearly Established Law
The Sixth Amendment right to counsel and the right to effective assistance of counsel protects the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient performance prejudiced the defense. Id. at 687. These two components are mixed questions of law and fact. See id. at 698. Further, "[t]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. If "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, .. . that course should be followed." Id.
With respect to the performance prong of the Strickland inquiry, a strong presumption exists that counsel's behavior lies within the wide range of reasonable professional assistance. See Id. at 689; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). "[D]efendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."' Strickland, 466 U.S. at 689 (citation omitted). "[T]he court should 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. With respect to the prejudice prong, the reviewing court must determine, based on the totality of the evidence before the factfinder, "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
2. Trial Counsel
a. Whether This Claim is Cognizable
Before reaching the merits of petitioner's trial counsel claim, it is necessary to address respondent's argument that this claim is not cognizable on habeas review. In support of this argument, respondent relies on the Supreme Court's decisions in Stone v Powell, 428 U.S. 465 (1976), and Lockhart v. Fretwell, 506 U.S. 364 (1993). Because "the exclusion of illegally seized evidence is simply a prophylactic device intended to deter Fourth Amendment violations by law enforcement officers," Kaufman v. United States, 394 U.S. 217, 224 (1969), the Court held in Stone that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 482. In Lockhart, the Court appeared to modify the Strickland prejudice inquiry, focusing that inquiry not on whether the result of the trial would have been different, but on whether counsel's errors called into question the reliability of the trial process. See Lockhart, 506 U.S. at 369.
Synthesizing these two cases, respondent argues that (1) evidence admitted in violation of the Fourth Amendment is not inherently unreliable, but rather is excluded as a prophylactic measure having nothing to do with reliability, and (2) therefore, admission of such evidence cannot amount to prejudice under Lockhart, because the admission does not impugn the reliability of the trial process. This position has been expressly adopted by the Seventh Circuit. See United States v. Jones, 152 F.3d 680, 688 (7th Cir. 1998); Holman v. Page, 95 F.3d 481, 490-91 (7th Cir. 1996). Although the syllogism advanced by respondent and adopted by the Seventh Circuit has superficial appeal, a deeper analysis reveals several flaws which make the conclusion sought by respondent untenable.
First, the Supreme Court has explicitly rejected this conclusion in Kimmelman v. Morrison, 477 U.S. 365 (1986). There, the Court held that it did "not share" the state's perception of the identity between [the habeas petitioner's] Fourth and Sixth Amendment claims." Id. at 374. The Court went on to explain that "[w]hile defense counsel's failure to make a timely suppression motion is the primary manifestation of incompetence and source of prejudice advanced by [the habeas petitioner], the two claims are nonetheless distinct, both in nature and in the requisite elements of proof." Id. The Court further "disagreed" with [the state's] contention that the reasoning and purposes of Stone are fully applicable to a Sixth Amendment claim which is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently." Id. at 375. Thus, Kimmelman directly rejects respondent's argument, whereas Lockhart offers, at best, only marginal support for the argument. Absent any other indication that Lockhart — which was not a case involving counsel's failure to raise a Fourth Amendment challenge — overrules Kimmelman, Kimmelman controls the analysis of petitioner's claim.
Second, even the marginal support Lockhart offers respondent's argument has been further weakened by the Supreme Court's more recent decisions. Recently, the Supreme Court has clarified that Lockhart is a unique case, essentially limiting that case to its facts, and indicating that in most cases the straightforward application of the Strickland prejudice test is appropriate. See Clover v. United States, 121 S.Ct. 696, 700 (2001); Williams, 120S.Ct. at 1512-13.
Finally, and most importantly for purposes of this Court's resolution of the issue, the Sixth Circuit has explicitly rejected the approach advocated by respondent and adopted by the Seventh Circuit. See Northrop v. Trippett, 265 F.3d 372, 384-85 (6th Cir. 2001). Thus, even absent the other reasons for rejecting respondent's argument, binding precedent dictates this result. Accordingly, the Court should conclude that petitioner's ineffective assistance of trial counsel claim is cognizable on habeas review.
b. Whether Counsel Was Ineffective
Nevertheless, the Court should conclude that petitioner is not entitled to habeas relief on this claim. As the Supreme Court explained in Kimmelman, "[w]here defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. at 375.
Petitioner argues that the police lacked probable cause to arrest him, and thus that his subsequent custodial statement was a fruit of his illegal arrest. The Michigan Court of Appeals rejected this claim, explaining:
There were numerous facts and circumstances available to the officers which could have caused a reasonably prudent person to believe defendant had committed a felony. Defendant's fingerprints were found throughout the decedent's apartment, bloody clothing was found in defendant's apartment which is down the hail from the decedent's, and tenants saw defendant leaving the decedent's apartment several times. Moreover, there was an outstanding warrant for defendant's arrest on another matter. Accordingly, because defendant was lawfully in custody, his statements to police were not the fruit of an illegal arrest.
Ct. App. op., at 1. The Court should conclude that this determination was a reasonable application of clearly established federal law, and thus that petitioner is not entitled to relief on this claim.
The Court need not dwell long on whether there was probable cause to arrest petitioner for the murder of which he was convicted. Although there surely was — the evidentiary hearing testimony of the officer in charge of the investigation confirms the court of appeals's recitation of the evidence pointing to petitioner, see Post-Conviction Mot. Tr., 9/29/92, in passim, which was clearly sufficient to establish probable cause — it is sufficient in this case that there was an outstanding warrant for petitioner's arrest on another charge. Nowhere in his pleadings, either in this Court or in the state courts, does petitioner challenge the fact that there was an outstanding arrest warrant, or that that warrant was supported by probable cause. Once petitioner was properly arrested on any charge, the police were, so far as the Fourth Amendment is concerned, free to question him about any crime they wished, even if their ultimate purpose was to question petitioner solely about the murder. See United States v. Clayton, 210 F.3d 841, 844 (8th Cir. 2000); United States v. D'Antoni, 856 F.2d 975, 979 (7th Cir. 1988); United States v. Causey, 834 F.2d 1179, 1180-85 (5th Cir. 1987) (en banc); Ex Parte Scarbrough, 621 So.2d 1006, 1008-10 (Ala. 1993). See generally Whren v. United States, 517 U.S. 806, 811-13 (1996) (police may stop motorist based on violation of traffic laws even where ultimate purpose of officers is to investigate another crime; subjective motivations of the officers is irrelevant to objective reasonableness of seizure under Fourth Amendment).
Because the police had probable cause to arrest petitioner, he cannot show that a motion to suppress his custodial statements based on the Fourth Amendment would have succeeded. Accordingly, he cannot show that counsel was ineffective for failing to bring such a motion, and the Court should deny petitioner's application for habeas relief on this claim.
3. Appellate Counsel
Petitioner also claims that his appellate counsel was ineffective for failing to assert his double jeopardy claim on direct appeal. To demonstrate that appellate counsel was ineffective petitioner must show, inter alia, that his claims would have succeeded on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996). As discussed in part G of this Report, Infra, petitioner's double jeopardy claim is without merit. Accordingly, he cannot show that counsel was ineffective for failing to raise this claim on direct appeal, and the Court should deny the petition as to this claim.
E. Claim II: Involuntary Confession
Petitioner next argues that his statements to the police should have been suppressed because they were involuntarily made.
1. Clearly Establ1shed Law
As the Supreme Court has explained, "a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession." Jackson v. Denno, 378 U.S. 368, 376 (1964). "Determining whether a confession is `voluntary' for due process purposes entails an examination into the "totality of the circumstances' to determine whether the confession was procured by acceptable techniques that draw upon an essentially free and unconstrained choice or by unacceptable tactics that extract their results from an overborne will. The critical line of distinction is between "self-direction' and "compulsion.'" Cooper v. Scroggy, 845 F.2d 1385, 1390 (6th Cir. 1988) (citing Culombe v. Connecticut, 367 U.S. 568, 602 (1961)); accord Dickerson v. United States, 120 S.Ct. 2326, 2331 (2000). It is not enough that a defendant's will was "overborne" by some factor for which state officials are not responsible. "Coercive police conduct is a necessary prerequisite to the conclusion that a confession was involuntary, and the defendant must establish a causal link between the coercive conduct and the confession." Carter v. Johnson, 131 F.3d 452, 462 (5th Cir. 1997) (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)). There is no bright line test for determining whether a confession is voluntary, nor is any one factor dispositive. Rather, a court must "look to the totality of the circumstances concerning whether a defendant's will was overborne in a particular case. Relevant factors may include the defendant's age, education and intelligence; whether the defendant has been informed of his constitutional rights; the length and extent of the questioning; and the use of physical punishments, such as the deprivation of food or sleep." United States v. Mahan, 190 F.3d 416, 422-23 (6th Cir. 1999) (internal quotation and citation omitted); accord, Watson v. DeTella, 122 F.3d 450, 453 (7th Cir. 1997); Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994).
For purposes of habeas review, "the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a [legal] matter for independent federal determination." Miller v. Fenton, 474 U.S. 104, 112 (1985). However, a state court's findings of historical fact are presumed by this Court to be correct unless rebutted by petitioner with clear and convincing evidence. Thus, "subsidiary factual questions, such as whether . . . in fact the police engaged in the intimidation tactics alleged by the defendant are entitled to the § 2254[(e)(1)] presumption." Miller, 474 U.S. at 112; see also, id. at 117.
2. Analysis
The resolution of petitioner's coerced confession claim essentially came down to a credibility contest between petitioner and the officers who arrested and interrogated him. Petitioner testified at the evidentiary hearing that he was: not informed of his rights; physically threatened by one of the officers; tricked into signing a waiver of rights form; denied food; told that his girlfriend would be released if he confessed; repeatedly questioned over the course of several days; and hungry, tired, intoxicated, and hung over. See Evidentiary Hr'g Tr., dated 5/4/90, at 8-29. The officers, on the other hand, all testified that petitioner: did not ask for an attorney; did not appear intoxicated; understood his rights and signed each page of the statements taken; did not appear intoxicated, tired, or hungry; and was supplied food. See Evidentiary Hr'g Tr., dated 4/20/90, at 6-70. Sergeant Val Knight also testified that he did not physically threaten or assault petitioner. See id. at 48, 57. The trial court rejected petitioner's testimony and accepted that of the officers, finding the officers more credible. Thus, the trial court concluded that petitioner's statement was voluntarily made. See Evidentiary Hr'g Tr., dated 5/4/90, at 41-43. Finding no error in the trial court's credibility determinations, the court of appeals affirmed the trial court's decision. See Ct. App. op., at 1. The Court should conclude that this determination was reasonable.
As explained above, the trial court's factual findings, and in particular its credibility determinations, are presumed correct. The only "issue in this case is a factual one — what happened during the interrogation." Everett v Barnett, 162 F.3d 498, 500 (7th Cir. 1998). The trial court, by crediting the officers' testimony, found as factual matters that petitioner was not threatened, denied food or sleep, or intoxicated during the interrogation; he understood his rights and knowingly waived them; and he did not request counsel at any time during the interrogation. Petitioner has offered no new evidence to rebut the trial court's factual findings. "Given th[e]se facts, there is no basis in law for a conclusion that" petitioner's confession was involuntary. Everett, 162 F.3d at 501. Because these factual findings are binding on this Court, it follows that petitioner is not entitled to habeas relief on this claim. See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).
Although petitioner mentions in his state court briefs that he requested counsel but was denied such, and that he was not informed of his rights, it does not appear that he attempted to raise an independent claim under Miranda v. Arizona, 384 U.S. 436 (1966) in either the state courts or this Court. To the extent he does, however, the claim must fail. As noted above, the trial court accepted the testimony of the officers that petitioner was informed of his rights, waived them, and never requested counsel. As with the voluntariness issue, the trial court's findings of historical fact are binding on this Court and, under those facts, there was no Miranda violation.
F. Claim III: Prosecutorial Misconduct
Petitioner next claims that he was denied a fair trial by several instances of prosecutorial misconduct.
1. Clearly Established Law
For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough that the prosecutor's conduct was "undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id (internal quotation omitted). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the prosecutor's conduct was so egregious as to warrant habeas relief, a court should consider "the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury; and the strength of the competent proof to establish the guilt of the accused." Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotations and citations omitted). In sum, to constitute a denial of due process the prosecutor's conduct must be "so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. (internal quotation omitted).
2. Analysis
Petitioner argues that the prosecutor committed misconduct in three ways: (1) by vouching for the credibility of a witness; (2) arguing matters not in evidence; and (3) by stating that petitioner was a violent person. The Court should conclude that petitioner is not entitled to habeas relief on any of these claims.
a. Vouching
Petitioner first argues that the prosecutor improperly vouched for the credibility of Joe Price, a prosecution witness. During closing argument, the prosecutor stated:
You heard from Joe Price. You have to judge whether or not you felt the emotion when his throat got thick and he had difficulty answering. My recollection was that he was genuine.
If you think about what Joe Price was up to, apparently there is some honor among thieves and it doesn't make sense for him to have killed Miss Ruth. You don't kill the goose that is laying the golden eggs for you. He was milking her. I'm not here to tell you that Joe Price, what he was doing was honorable or right. And it's not. And I'm not here to tell you that I approve of what Joe Price was doing when he was out there in the railroad terminal trying to get into the boxcar.
Joe Price was quit [sic) honest when he tells you, I'm a thief; but she didn't have to die.
Trial Tr., at 544-45. The Court should conclude that comment by the prosecutor does not constitute impermissible vouching.
As the Ninth Circuit has noted:
It is improper for the prosecution to vouch for the credibility of a government witness. Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witnesses or may indicate that information not presented to the jury supports the witness's testimony. The first type of vouching involves personal assurances of a witness's veracity . . . .
The second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record. it may occur more subtly than personal vouching, and is also more susceptible to abuse.United States v Frederick, 78 F.3d 1370, 1378 (9th Cir. 1996) (citation omitted) (quoting United States v. Roberts, 618 F.2d 530, 533-34 (9th Cir. 1980) (citations omitted)); accord United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996), cert. denied, 117 S.Ct. 965 (1997).
The Sixth Circuit has expressly endorsed the Ninth Circuit's two-part definition of vouching in a number of unpublished opinions. See, e.g., United States v. Kelley, No. 89-1837, 1990 WL 165564, at *1 (6th Cir. Oct. 30, 1990); United States v. Duval, No. 89-1891, 1990 WL 52371, at *2 (6th Cir. Apr. 26, 1990). In addition, the Sixth Circuit has recognized each of these two types of "vouching" in separate published opinions. See, e.g., Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993) (per curiam) (vouching occurs where prosecutor expresses personal belief in veracity of witnesses); United States v. Martinez, 981 F.2d 867, 871 (6th Cir. 1992) (vouching occurs when prosecutor suggests credibility of witnesses is supported by evidence not in the record).
Here, the prosecutor neither personally vouched for Price's veracity nor suggested that evidence not presented at trial supported Price's testimony. In her closing argument, the prosecutor merely explained that Price was truthful about his commission of a crime against the victim, and his demeanor suggested that he was being forthcoming. Thus, the prosecutor's comments were merely a fair characterization of the evidence presented to the jury based on her summation of that evidence. As such, they did not constitute impermissible vouching for the credibility of the witnesses or the guilt of petitioner. See, e.g., Nichols v. Scott, 69 F.3d 1255, 1283 (5th Cir. 1995) (comment "is permissible to the extent that it draws a conclusion based solely on the evidence presented.") (internal quotation omitted); United States v. Grey Bear, 883 F.2d 1382, 1392 (8th Cir. 1989); Martin v. Foltz, 773 F.2d 711, 717 (6th Cir. 1985) (prosecutor may argue permissible inferences from the evidence); United States ex rel. Williams v. Washington, 913 F. Supp. 1156, 1163 (N.D. Ill. 1995) (prosecutor's assertion during closing argument that the defendant had "lied" did not deprive petitioner of a fair trial where "the prosecution's statements were reasonable inferences drawn from the physical evidence and witness testimony[.]"); Miller v. White, No. C-93-20648 RPA, 1994 WL 621671 (N.D. Cal. Oct. 17, 1994) (a prosecutor "is privileged to argue to the jury that it was his opinion formed from deductions made from evidence adduced at the trial that the defendant was guilty of the crime charged.") (internal quotation omitted). Further, the comments made a permissible response to the defense, which suggested that it was Price who had murdered the victim. See United States v. Hurst, 951 F.2d 1490, 1502 (6th Cir. 1991) ("In response to attacks on the credibility of the government's main witness, the prosecutor sought to explain his efforts to ensure full and honest disclosure by Long. The statements do not constitute an expression of personal belief or opinion concerning Long's veracity."); see also, Darden v. Wainwright, 477 U.S. 168, 182 (1986) (one factor in evaluating claims of prosecutorial misconduct is whether the prosecutor's statement was "invited by or was responsive to the [closing argument] of the defense."). Accordingly, the Court should conclude that the prosecutor's comment did not amount to impermissible vouching, and thus that petitioner is not entitled to relief on this claim.
b. Arguing Facts Not in Evidence
Petitioner next contends that the prosecutor improperly argued facts not in evidence. In discussing an envelope found in the victim's apartment with a blood-stained footprint, the prosecutor argued that petitioner "stepped on that envelope and Mr. Brown left those imprints." Trial Tr., at 546. At trial, however, the expert testified that although the pattern of petitioner's shoes and the footprint on the envelope were consistent with each other, there were insufficient points to say that only petitioner's shoes, and no others, were capable of making the footprint. See Trial Tr., at 267.
Contrary to petitioner's assertion, the prosecutor's argument was merely a fair comment on the evidence. Although a definitive match which excluded all shoes but petitioner's could not be made, the expert did testify that petitioner's shoe matched the print made on the envelope. In addition, testimony indicated that petitioner's shoes apparently had blood on them. It was permissible for the prosecutor to argue a fair inference from these facts — namely, that petitioner made the footprint. See Martin v. Foltz, 773 F.2d 711, 717 (6th Cir. 1985) (prosecutor may argue permissible inferences from the evidence); United States ex rel. Williams v. Washington, 913 F. Supp. 1156, 1163 (N.D. Ill. 1995) (same). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
c. Referring to Petitioner as a Violent Person
Finally, petitioner contends that the prosecutor committed misconduct by referring to him as a violent person. See Trial Tr., at 576. Although this remark was arguably improper, it was a single, isolated remark against a backdrop of significant evidence of petitioner's guilt. Further, the trial court gave an immediate curative instruction. In these circumstances, the Court should conclude that the prosecutor's single comment, even if improper, did not deprive petitioner of a fair trail. See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000); Pritchett, 117 F.3d at 964. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
G. Claim IV: Double Jeopardy
Petitioner next claims that his conviction in his second trial, after a mistrial had been declared in his previous trial, violated his right to be free from double jeopardy.
1. Clearly Established Law
The Fifth Amendment to the United States Constitution commands that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Shiro v. Farley, 510 U.S. 222, 229 (1994) (citing United States v. Wilson, 420 U.S. 332, 339 (1975)). Jeopardy first attaches: when the jury is sworn in a jury trial, Crist v. Bret, 437 U.S. 28, 38 (1978); when the court begins to hear evidence in a nonjury trial, Serfass v. United States, 420 U.S. 377, 388 (1977); or in guilty plea cases, when the court accepts the plea, United States v. Farber, 57 F.3d 873, 874 (9th Cir. 1995).
In the absence of a defendant's request or consent for a mistrial, there can be a new trial after a mistrial when "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." United States v. Dinitz, 424 U.S. 600, 607 (1976) (citations omitted). However, "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." United States v. Scott, 437 U.S. 82, 99 (1978). Thus, a defendant's request for a mistrial normally removes any bar to re-prosecution. Dinitz, 424 U.S. at 608.
2. Analysis
Although respondent has provided portions of the transcript from petitioner's first trial, the record does not contain that portion of the transcript in which a mistrial was declared by the trial judge. Nevertheless, it is clear from the parties' pleadings that a mistrial was declared because the original jury was deadlocked and could not reach a decision. This was clearly a proper basis for the declaration of a mistrial. As the Supreme Court has explained, "without exception the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial." Arizona v. Washington, 434 U.S. 497, 509 (1978); accord Downum v. United States, 372 U.S. 734, 735-36 (1963); Dreyer v. Illinois, 187 U.S. 71, 85-86 (1902); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). Moreover, "[t]he trial judge's decision to declare a mistrial when he considers the jury deadlocked is . . . accorded great deference by a reviewing court." Arizona, 434 U.S. at 510. Petitioner has offered nothing to show that the jury was not deadlocked or that the trial judge abused his broad discretion in reaching this conclusion. Accordingly, petitioner's retrial did not offend the Double Jeopardy Clause, and petitioner is not entitled to habeas relief on this claim.
H. Conclusion
In view of the foregoing, the Court should conclude that the Michigan courts' rejection of petitioner's claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner's application for the writ of habeas corpus.
III. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636 (b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.