Opinion
Case No. 99-CV-73027-DT.
August 31, 2000.
MEMORANDUM OPINION AND ORDER
I. Introduction
Before the Court are the pro so habeas corpus petition of Michael Lavern Brown ("Petitioner") and Petitioner's third motion for enlargement of time. In 1985, a jury in the former Recorder's Court for the City of Detroit, Michigan found Petitioner guilty but mentally ill of three offenses: (1) breaking and entering an occupied dwelling with intent to commit larceny, MICH. COMP. LAWS ANN. § 750.110 MICH. STAT. ANN. § 28.305; (2) armed robbery, MICH. COMP. LAWS ANN. § 750.529; MICH. STAT. ANN. § 28.797; and (3) two counts of first-degree criminal sexual conduct ("CSC-I"), MICH. COMP. LAWS ANN. § 750.520b(1); MICH. STAT. ANN. § 28.788(2)(1). The convictions arose from an incident on August 13, 1984, when Petitioner allegedly broke into the victim's home, raped her twice, and robbed her. The trial court sentenced Petitioner to concurrent terms of five to fifteen years in prison for the breaking and entering, eight to twenty years for the armed robbery, and twenty to sixty years for the criminal sexual conduct.
In his appeal of right, Petitioner challenged the prosecutor's rebuttal argument and the trial court's refusal to instruct the jury on the defense of diminished capacity. Two members of a three-judge panel affirmed Petitioner's Conviction in an unpublished opinion. See People v. Brown, No. 88691 (Mich.Ct.App. Oct. 28, 1987). The third judge dissented although he agreed that the trial court properly refused to instruct on diminished capacity and that the prosecutor's argument contained no improprieties. The dissenting judge voted to require appellate counsel to brief the issue of ineffective assistance of trial counsel (failure to present admissible evidence of insanity) and to entertain a motion to remand for an evidentiary hearing.
Petitioner appealed to the Michigan Supreme Court, which ordered the trial court to determine whether Petitioner was indigent and, if so, to appoint an appellate attorney. See People v. Brown, No. 82187 (Mich.Sup.Ct. July 6, 1988). The trial court appointed counsel, who filed an application for leave to appeal in the Michigan Supreme Court. The application alleged (1) ineffective assistance of trial counsel and the first appellate counsel, and (2) failure to give a jury instruction on diminished capacity. The Michigan Supreme Court subsequently denied leave to appeal. See People v. Brown, No. 82187 (Mich.Sup.Ct. Apr. 26, 1989).
Two justices joined in the denial because Petitioner could move for a hearing in the trial court pursuant to People v. Ginther, 390 Mich. 436 (1973) (concluding that "[a] defendant who wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claims with evidence. . . .").
Petitioner then filed a motion for new trial in which he alleged ineffective assistance of trial counsel. The trial court held an evidentiary hearing on Petitioner's motion and denied it. The Michigan Court of Appeals denied Petitioner's subsequent application for leave to appeal "for lack of merit in the grounds presented." People v. Brown, No. 120677 (Mich.Ct.App. Dec. 8, 1989). Petitioner did not appeal the court's decision to the Michigan Supreme Court. However, he subsequently filed additional post-conviction motions, and he pursued at least three more rounds of appeal without success. He also filed a federal habeas corpus petition, which United States District Judge Stewart A. Newblatt dismissed without prejudice. See Brown v. Hofbuaer, No. 95-CV-40163-FL (E.D. Mich. Mar. 25, 1997).
On August 13, 1999, Petitioner filed the pending habeas corpus petition pursuant to 28 U.S.C. § 2254. He alleges eleven grounds for relief:
1. Ineffective assistance of trial counsel;
2. Ineffective assistance of first appellate counsel;
3. Misreading of trial transcripts by the Michigan Court of Appeals on first appeal of right;
4. Ineffective assistance of second appellate counsel;
5. Failure to hold a hearing on competency to stand trial;
6. Denial of the right to an effective appeal due to state interference;
7. Denial of the right to effective assistance of second appellate counsel;
8. Confession erroneously admitted into evidence;
9. Court enhanced sentence based on inaccuracies;
10. Double jeopardy; and
11. Illegal arrest in violation of the Fourth Amendment to the United States Constitution.
Respondent urges the Court to dismiss the habeas petition.
Respondent has not challenged Petitioner's assertion that he raised all his habeas claims in state court. The Court presumes that Petitioner exhausted state court remedies for all his claims or that he is barred from doing so now because he already utilized the one remedy that he had: a motion for relief from judgment. See M.C.R 6.502(G)(1) (limiting prisoners to one motion for relief from judgment unless the motion is based on a retroactive change in the law or newly discovered evidence). Petitioner has not established both cause for any failure to exhaust state remedies and resulting prejudice or that he is innocent. Bousley v. United States, 523 U.S. 614, 622 (1998); Hannah v. Conley, 49 F.3d 1193, 1195-96 1196 n. 3 (6th Cir. 1995); see Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1992). In addition, his claims lack merit, and the Court has concluded that the petition must be denied even if state court remedies have not been exhausted. 28 U.S.C. § 2254(b)(2).
II. Discussion
A. General Standard or ReviewThe Antirerrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA"), which is applicable here, altered the standard of review that federal courts must consider when deciding whether to grant habeas corpus petitions brought under 28 U.S.C. § 2254. Felker v. Turpin, 518 U.S. 651, 654 (1996). The altered standard of review "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim on the merits —
(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 can unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523.
The state court did not adjudicate most of Petitioner's claims on the merits, When
the state court has not articulated its reasoning, federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the stale court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. That independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is no; in keeping with the strictures of the AEDPAHarris v. Stoval, 222 F.3d 940, 943 (6th Cir. 2000) (citations omitted).
B. Ineffective Assistance of Trial Counsel
Petitioner's first claim is his trial attorney deprived him of his constitutional right to the effective assistance of counsel. To prevail on this claim, Petitioner must demonstrate that
counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed [Petitioner] by the Sixth Amendment. Second, [Petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is reliable. Unless [Petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
The proper standard for attorney performance is "reasonably effective assistance" Id. Petitioner must demonstrate that his attorney's "representation fell below an objective standard of reasonableness." Id. at 688.
To satisfy the prejudice prong of the standard for ineffective assistance of counsel, Petitioner must establish 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. For the following reasons the Court has concluded that defense counsel's performance fell within the range of reasonably effective assistance. Alternatively, the result of the proceedings would not have ken any different but for the alleged errors,
1. Failure to Adequately Prepare an Insanity Defense
Petitioner alleges tint his trial attorney failed to adequately investigate and prepare an insanity defense and a defense based on involuntary intoxication. Petitioner contends (that his attorney should have called as witnesses the psychiatrists and other physicians who treated him before the events leading to his convictions.
A psychiatrist testifying for the State opined that, although Petitioner was mentally ill, he was not legally insane. See T at 279-80.
"[T]he testimony of a psychiatrist is crucial to a successful insanity defense." Mackey v. Dutton, 217 F.3d 399, 408 (6th Cir. 2000) (citing Ake v. Oklahoma, 470 U.S. 68, 81 (1985)). Moreover, in Michigan, an insanity defense can only be proved by expert testimony, not by lay witnesses. People v. Savoie, 419 Mich. 118, 128 (1984).
Petitioner's attorney presented an insanity defense based only on lay testimony and medical records. However, before trial, defense counsel retained a psychiatrist for the purpose of evaluating Petitioner, and the psychiatrist concluded that Petitioner was not legally insane. See GH at 5-6. Defense counsel was forced to rely on lay testimony because even the defense psychiatrist did not support Petitioner's insanity defense.
For purposes of this opinion, "GH" refers to the transcript of the Ginther (evidentiary) hearing held on August 18, 1989; "T" refers to the transcript of trial, which Consists of multiple volumes consecutively paginated; and "ST" refers to the transcript of Petitioner's sentencing held on July 11, 1985.
Defense counsel did not interview other physicians who treated Petitioner because they had not examined Petitioner for the purpose of establishing an insanity defense. Additionally, defense counsel had medical records demonstrating that Petitioner was mentally ill, and the prosecutor stipulated to the existence of Petitioner's mental illness. See id. at 7-8. Defense counsel rejected an intoxication defense because it does not apply to CSC. See id. at 17-18.
Furthermore, Petitioner's own statement to the police undercut his insanity defense. For the jury to conclude that Petitioner was insane, it would have had to find that, due to mental illness or mental retardation, Petitioner lacked the substantial capacity to (1) appreciate the wrongfulness of his conduct, or (2) conform his conduct to the requirements of law. MICH. COMP. LAWS ANN. § 768.21a; MICH. STAT. ANN. § 28.1044(1); People v. Crawford, 89 Mich. App. 30, 36 (1979). Petitioner gave a detailed description of the criminal incident to the police. His statement to the police includcd an admission that he was guilty and that he had asked the victim for forgiveness. See T at 235-50. These admissions indicated that Petitioner at least knew right from wrong.
The Court concludes (that defense counsel adequately investigated the facts and made reasonable strategic choices. His failure to place an expert witness on the stand was not indicative of a deficient performance under the circumstances. Even if the Court assumes that counsel's performance was deficient, the deficient performance did not prejudice the defense. Therefore, the trial court's conclusion that defense counsel was not ineffective was a reasonable application of Strickland, and Petitioner is not entitled to habeas corpus relief.
2. The Other Claims about Trial Counsel
a. The Confession
Petitioner alleges that trial counsel should have taken an interlocutory appeal from the trial court's decision to admit Petitioner's confession into evidence. This claim lacks merit because there was no legitimate basis for challenging the admission of the confession. See infra part II.G.b. The Prosecuter's Conduct
Petitioner asserts that his attorney should have objected to the prosecutor's comments, which he claims invoked the jurors' sympathy, prejudice, and bias. Petitioner also contends that the prosecutor improperly argued that the defense had not presented any evidence of legal insanity.
The prosecutor was entitled "to argue reasonable inferences from the evidence," United States v. Collins, 78 F.3d 1021, 1040 (1996), as he did in this case. The trial court, moreover, instructed the jurors that the attorneys' statements and arguments were no: evidence. See T at 377. The trial court also informed the jury that the burden of proof was on the prosecution to prove every element of the crime beyond a reasonable doubt and that Petitioner was not required to produce any evidence, See T at 375. In addition, the Michigan Court of Appeals did not rely on trial counsel's failure to object, and it found no error in the prosecutor's comments, Thus, Petitioner Was not prejudiced by his attorney's failure to object to the prosecutor's comment about whether the evidence supported Petitioner's insanity defense.
The Court of Appeals noted that defense counsel did not object to the prosecutor's argument, but this observation was not a "clear and express" indication that the appellate court's judgment rested on a state procedural bar. Cf. Harris v. Reed, 489 U.S. 255, 263 (1989) (holding that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar") (citation omitted).
c. The Sentence
Petitioner alleges that defense counsel failed to object to the scoring of the guidelines and the use of his juvenile adjudication at sentencing. Contrary to Petitioners assertion, defense counsel did object to the scoring of the guidelines. See ST at 6-8.
Defense counsel did not object to the inclusion of the juvenile adjudication in his record. However, Petitioner's claim that the juvenile adjudication was invalid because he was not represented by counsel and did not waive counsel is not supported by any evidence. Furthermore, defense counsel argued that the trial court should temper Petitioner's criminal history with his disadvantaged upbringing, mental illness, and drug abuse. See id. at 9-10. And the trial court appears to have relied on Petitioners assaultive nature, not his juvenile adjudication for malicious destruction of property, when sentencing Petitioner. See id. at 10-11.
d. Double Jeopardy
Petitioner contends that defense counsel should have objected to the verdict on double jeopardy grounds. Defense counsel was not remiss for failing to object on double jeopardy grounds because Petitioner's convictions did not violate the Double Jeopardy Clause. See infra part II.I.
e. Lesser Included Offenses
Petitioner alleges that defense counsel should have requested jury instructions on lesser included offenses, butt he has not demonstrated that the evidence supported such instructions. Moreover, defense counsel elected to seek an acquittal on the basis of the insanity defense. This was a reasonable defense tactic because a jury's consideration of lesser included offenses can result in a compromise verdict, as opposed to an acquittal.
f. Determination on Insanity
According to Petitioner, defense counsel failed to object when the trial court did not give the jury art opportunity to determine whether Petitioner was legally insane. There was no need to object to the jury instructions because the trial court instructed the jury on the insanity defense and informed the jury that one possible verdict was not guilty by reason of insanity. See T at 390-94 and 398-99.
g. Failure to Seek a Competency Hearing
Petitioner contends that defense counsel should have requested a competency hearing. The state docket entries indicate that the trial court ordered a competency evaluation, and Petitioner has not shown that he was incompetent to stand trial. See infra part II.F. Thus, defense counsel's performance was not ineffective for allegedly failing to request a competency hearing.
3. Conclusion on Ineffective-Assistance-of-Councel Claims
For all the reasons given above, the Court concludes that defense counsel's representation did not fall below an objective standard of reasonableness. Alternatively, there is a reasonable probability that the result of' the proceeding would not have been different but for the alleged errors. Accordingly, the state court decisions denying relief on Petitioners claim of ineffective assistance of counsel were not unreasonable applications of Strickland, and Petitioner is not entitled to habeas relief on the basis of his first claim.
C. Ineffective Assistance of First Appellate Counsel
Petitioner alleges next that his first appellate attorneys rendered ineffective assistance. He claims that the attorneys did not discuss possible claims with him and did raise claims about trial counsel and Petitioner's confession to the police. For ineffective assistance of appellate counsel to rise to the level of a Sixth Amendment violation, counsel's performance must be deficient and the deficient performance must have prejudiced the appeal. Strickland, 466 U.S. at 687; Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, ___ U.S. ___, 120 S.Ct. 1587 (1999).
Defense counsel was not ineffective for failing to challenge the admission of Petitioner's confession into evidence because there was no legal basis for challenging the confession. Notwithstanding Petitioner's assertions, probable cause existed to arrest him and his confession gave the appearance of being voluntary. See infra part II.G.
Probable cause to arrest exists when there is a reasonable probability that an illegal act has occurred or is about to occur. United States v. Reed, ___ F.3d ___, ___, 99-3394, 2000 WL 868474, at 2 (6th Cir. June 30, 2000). "Officers are not required to rule out every possible explanation other than a suspect's illegal conduct before making an arrest." Id.
The victim could not identify Petitioner before his arrest, but she testified that Petitioner wore gloves and hit her with a blunt object during the assault. See T at 154-55 and 166. Petitioner's aunt testified that Petitioner stopped at her residence, which was about four or five blocks away from the victim's borne, between 3:30 a.m. and 4:30 a.m. on the same night. Petitioner had a screwdriver and gloves in his pocket, mid he said that he always carried a screwdriver for breaking into cars. He also said that he would not try to have sex with her.
Later that morning, Petitioner's aunt learned that people were saying Petitioner had been at the victim's home at the time of the assault. She called the police and told them that she had seen Petitioner in the neighborhood about the same time and that he had carried a screwdriver. She also described how Petitioner had acted that morning. See T at 187-99, and 204. The police had probable cause to arrest Petitioner because the information given to them by the victim and Petitioner's aunt established a reasonable probability that Petitioner had committed the crimes.
Appellate counsel was not ineffective for failing to raise a claim of ineffective assistance or trial counsel because trial counsel's performance was not deficient. Alternatively, any deficiencies in trial counsel's performance did not prejudice the defense. See infra part II.B. Moreover, Petitioner had no absolute constitutional right to compel his attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 1387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the Sound professional judgment of counsel. . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
D. Misconstruing the Trial Transcript
Petitioner's third claim is that the Michigan Court of Appeals misconstrued the trial transcript during the appeal of right. Petitioner's sixth claim is that he was denied his right to an effective appeal because the Michigan Supreme Court overlooked this claim.
1. The Visit with Petitioner's Aunt
The first basis for Petitioner's claims is his aunt's testimony that, on the morning of the crimes, Petitioner stopped at her residence. According to Petitioner's reading of the transcript, his aunt's testimony established that he stopped at her home before the criminal incident. The Michigan Court of Appeals opined that Petitioner stopped at his aunt's home after the crimes were committed. See Brown, No. 88691 at 2.
Although Petitioner appears to be correct, see T at 164 and 189-96, his appellate claims did not depend on whether he visited his aunt before or after the crimes. The misunderstanding by the Court of Appeals did not result in denying any valid constitutional claim. Evans v. Cupp, 415 F.2d 844, 846 (9th Cir. 1969).
2. Departure from the Hospital
The second basis for Petitioner's claims concerns testimony about his departure from the Northville Regional Psychiatric hospital. Petitioner's mother, Charlotte Redmond, testified that Petitioner was a patient at the hospital for thirty days, then escaped, and later returned to the hospital as an outpatient. See T at 253-55.
The Court of Appeals summarized Ms. Redmond's testimony about Petitioner's hospitalization as follows:
She [Ms. Redmond] indicated defendant had sought psychiatric help and stayed at Northville Regional Psychiatric Hospital as a patient for thirty days, and later visited the hospital as an outpatient.Brown, No. 88691, at 2. This interpretation of the record is consistent with Ms. Redmond's testimony even if the state court did not acknowledge Petitioner's escape. The Court of Appeals did not opine that Petitioner was released from the hospital. To conclude, Petitioner's claims about the state court's interpretation of the trial testimony are frivolous and do not warrant habeas corpus relief.
E. Ineffective Assistance of Second Appellate Attorney
Petitioner's fourth and seventh claims allege that his second appellate attorney deprived him of his constitutional right to the effective assistance of counsel. Petitioner's claims stem from his attorney's representation of Petitioner at the evidentiary hearing on Petitioner's motion for new trial and during a subsequent appeal.
Petitioner's appeal to the Michigan Supreme Court and all subsequent appeals were discretionary appeals, see M.C.R. 7.203(B), 7.301(A), and 7.302, and a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals, Wainwright v. Torna, 455 U.S. 586, 587 (1982). Therefore, Petitioner cannot complain of being deprived of the effective assistance of counsel during the proceedings that followed his appeal of right. Id. at 587-88.
F. Failure to hold Competency Hearing
Next, Petitioner challenges the trial court's failure to hold a hearing on whether he was competent to stand trial. The United States Court of Appeals for the Sixth Circuit has explained that:
[t]he conviction of a defendant who is legally incompetent violates a defendant's right to due process of law. Additionally, a courts failure to make a proper competency inquiry where there is substantial evidence of a defendant's incompetency violates due process by depriving the defendant of his right to a fair trial.Mackey, 217 F.3d at 411.
Petitioner had a history of mental illness and drug abuse, He possessed a constitutional right to be examined by a competent psychiatrist because his defense was insanity. Id. at 410. It appears, however, that be was examined for competency because the state court docket entries indicate that, on September 14, 1984, the trial court entered an order for a competency and criminal responsibility evaluation. Furthermore, the psychiatrist who testified for the State at Petitioner's trial claimed that he interviewed Petitioner about two weeks before trial and that Petitioner gave a clear and organized presentation. See T at 269 and 276-78. Because there is no evidence in the record that Petitioner was incompetent to stand trial, his claim that be should have a received a hearing on competency to stand trial lacks merit.
G. Petitioner's Confession
Petitioner alleges dint the trial court admitted his confession into evidence in violation of his rights under the Fourth and Fifth Amendments to the United States Constitution. Petitioner also alleges that there was no hearing to contest the validity of his confession.
Petitioner's Fourth Amendment claim is not cognizable here. See infra part II.J. His Fifth Amendment claim is that he was convicted in violation or his right not to incriminate himself. He contends that he did not waive his constitutional rights before confessing to the crimes and that the police officer who took his statement falsified it.
The Fifth Amendment states that "no person shall be . . . compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To protect this right against self-incrimination, the Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444 (1966), that, before custodial interrogation begins, a suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." "Unless a suspect knowingly, voluntarily, and intelligently waives these rights, a court will exclude statements made as a result of an involuntary waiver." Machacek v. Hofbauer, 213 F.3d 947, 954 (6th Cir. 2000) citing Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990)).
Sergeant Madelyn Williams of the Detroit Police Department testified at Petitioner's trial that she advised Petitioner of his constitutional rights before taking his statement. Petitioner claimed to understand his rights, and he initialed the notification of rights form. At no point did Petitioner indicate that be wished to exercise any of his constitutional rights. See T at 230-34.
The record does not support Petitioner's contentions that his confession was involuntary and that the police falsified the confession. And, although Petitioner claims that he did not have a hearing on the voluntariness of his confession, the state court docket entries indicate that the trial court addressed the issue on November 27, 1984.
H. The Sentence
Petitioner's ninth claim challenges his sentence. He alleges that the trial court scored the sentencing guidelines incorrectly. This is a state law claim, which is not cognizable on habeas review. Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987).
Petitioner also contends that the trial court relied on a juvenile felony conviction for which he was not represented by counsel. Petitioner has not supported his claim with proof that he was not represented by counsel, and his conclusory allegation is not a basis for granting an evidentiary hearing on the matter. Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971); Reams v. Davis, 333 F.2d 430, 431 (6th Cir. 1964).
I. Double Jeopardy
Petitioner asserts that he was subjected to multiple convictions and sentences in violation of his rights under the Fifth Amendment. The Double Jeopardy Clause of the Fifth Amendment provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Clause applies to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794 (1969), and it protects "criminal defendants from successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense." Rashad v. Burt, 108 F.3d 677, 679 (6th Cir. 1997) (citing Brown v. Ohio, 432 U.S. 161, 165 (1977), cert. denied, 522 U.S. 1075 (1998).
I. Breaking Entering, Armed Robbery, CSC-I Convictions
Petitioner contends that the breaking and entering and armed robbery were part of the same transaction as the CSC. He argues that his convictions for breaking and entering and armed robbery violated the Double Jeopardy Clause because those felonies were the underlying basis for the CSC-I conviction.
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test [for determining] whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Petitioner was convicted of CSC-I under MICH. COMP. LAWS ANN. § 750.520b(1)(c); MICH. STAT. ANN. § 28788(2)(1)(c), which required proof of sexual penetration under circumstances involving the commission of any other felony. The element of sexual penetration obviously is not necessary for a conviction of armed robbery or breaking and entering. The latter two offenses by definition require proof of elements not needed to convict someone of CSC-I. The three offenses for which Petitioner was convicted were different crimes involving distinct statutory elements. "No merger of offenses occurs in such a situation," United States v. Barrett, 933 F.2d 355, 361 (6th Cir. 1991), and the Double Jeopardy Clause was not violated.
2. The Two Counts of CSC
Petitioner was convicted of two counts of CSC-I. He contends that the two convictions and sentences for CSC-I violated the Double Jeopardy Clause because the rapes occurred during a single continuous occurrence.
Even if the crimes are the same under Blockburger, a court's inquiry must end when it is evident that a state legislature intended to authorize cumulative punishments, Ohio v. Johnson, 467 U.S. 493, 499 n. 8 (1984). The Michigan legislature apparently intended to authorize separate punishments for each criminal sexual penetration, People v. Dowdy, 148 Mich. App. 517, 521 (1986), and, in this case, the victim testified that Petitioner raped her two times. See T at 150-57, Under Blockburger, each of the sexual penetrations constituted a distinct offense for which the trial court was authorized to sentence Petitioner to a term of imprisonment.
Petitioner told the police that there was one sexual penetration and that, although he contemplated a second sexual act, he decided against it because he was getting ready to leave. See T at 236.
J. The Arrest
Petitioner's eleventh and final claim is that he was illegally arrested in violation of the Fourth Amendment to the United States Constitution. Specifically, Petitioner alleges that there was no arrest warrant and no probable cause to arrest him.
Petitioner had a full and fair opportunity to present his Fourth Amendment claim to the state court, and presentation of his claim was not frustrated by a failure of the state court mechanism, Accordingly, Petitioners Fourth Amendment claim is not cognizable on habeas review. Stone v. Powell, 428 U.S. 465, 481-82 (1976); accord Caldwell v. Taylor, 461 U.S. 571, 572 (1983); Seymour v. Walker, ___ F.3d. ___, ___, No. 98-4316, 2000 WL 1154017, at *6 (6th Cir. August 16, 2000); Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir. 1985).
In Michigan, a motion to suppress evidence may be raised before trial, during trial, and even on appeal. See People v. Ferguson, 376 Mich. 90, 93-95 (1965); People v. Harris, 95 Mich. App. 507, 509 (1980).
All that Stone v. Powell requires is an `opportunity' for full and fair consideration of the claim for suppression; it is up to the claimant and his counsel to decide what use, if any, is to be made of the opportunity." Jennings v. Rees, 800 F.2d 72, 77 (6th Cir. 1986).
III. Conclusion
Petitioner has not demonstrated that the state court decisions denying relief were contrary to federal law, unreasonable applications of clearly established federal law as determined by the Supreme Court, or unreasonable determinations of the facts. Accordingly, the Court DENIES the habeas corpus petition.The Court GRANTS Petitioner's third motion for enlargement of time, which sought an enlargement of time (to the date of filing) for submitting a lengthy response brief. Petitioner filed his response brief with his motion for enlargement of time on August 25, 2000.