Opinion
Case No. 00-CV-74836-DT
January 7, 2002
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
I. Introduction
Currently pending before the Court is petitioner Sean Chavies' habeas corpus petition under 28 U.S.C. § 2254. Petitioner is a state inmate at the Chippewa Correctional Facility in Kincheloe, Michigan.
On September 11, 1997, a Recorder's Court jury in Detroit, Michigan found Petitioner guilty of armed robbery. See MICH. COMP. LAWS § 750.529. The convictions arose from charges that, on January 19, 1997, Petitioner robbed an acquaintance, Jack Butler, near 2559 Helen Street in Detroit. Butler testified that Petitioner approached him from an area between the house where Butler's girlfriend, Dione Parker, lived and the house next door. Butler claimed that Petitioner pointed a shotgun at him and demanded his money. Butler handed over $150.00 and then left in his truck.
It was established at trial that Dione Parker was living at, or in the process of moving from, 2559 Helen Street at the time of the robbery. The address of the house next door was 2565 Helen Street.
Jack Butler's mother, Ollie DeBaptiste, witnessed the robbery from Butler's truck and corroborated Butler's testimony at trial. Dione Parker, who was Petitioner's cousin as well as Butler's girlfriend, testified that Butler told her about the robbery over the telephone. Parker also testified that, when she went next door and confronted Petitioner about the incident, Petitioner said that Butler had no business being there. Petitioner's defense was that he was elsewhere during the robbery and that Butler brought the charges in retaliation for, among other things, an altercation with Petitioner a few days before the robbery.
The trial court sentenced Petitioner to imprisonment for five to fifteen years. Petitioner raised his habeas claims in the Michigan Court of Appeals, which affirmed his conviction and sentence in an unpublished, per curiam opinion. See People v. Chavies, No. 208825 (Mich.Ct.App. June 18, 1999). The Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Chavies, 461 Mich. 953 (2000) (table).
Petitioner filed his habeas petition on November 9, 2000. He alleges the following grounds for relief:
I. The trial court erred in ruling that evidence of other guns was relevant and admissible.
II. Police investigator Fular had allegedly run a LEIN check which showed Defendant's connection to Helen Street, where the crime allegedly occurred. The prosecutor said Fular was `on disability' and `can't make it to court.' The trial court held Fular was `unavailable,' and allowed another officer to testify, over objection, to the LEIN check. This was error because the business-record hearsay exception was not established, and `unavailability' was irrelevant.
III. The trial court plainly erred in allowing the prosecutor to call complainant's girlfriend Dione Parker as a rebuttal witness.
IV. The trial court allowed prosecution rebuttal witness Dione Parker to testify that Jack Butler phoned her to say Defendant had robbed him. The court stated `I don't know if it's an excited utterance, but it is appropriate on rebuttal since it was directly challenged by the defense.' The trial court prejudiced the defense in allowing this hearsay testimony.
V. The trial court erred in allowing the prosecutor to sandbag the defense by proving damaging party admissions in rebuttal testimony.
VI. Defendant stated that he did not have a criminal record. The trial court allowed the prosecutor to prove that Defendant had two misdemeanor domestic violence convictions, and that he was arrested and jailed in Battle Creek on an unrelated matter. The trial court erred in allowing the evidence of Defendant's criminal record.
VII. Defense counsel sought to elicit from Defendant what had prompted his fistfight with complainant Jack Butler. The trial court sua sponte precluded the answer. This was error which prejudiced the Defendant's right to a fair trial.
VIII. The trial court instructed that in considering reasonable doubt the jury could not use their imaginations, and that a reasonable doubt had to be one a juror could articulate and discuss. The court also gave a non-standard instruction on prior inconsistent statements. These instructions denied a fair trial.
A. The trial court erred in giving a reasonable-doubt instruction that required the jurors not to use their imaginations and informed them that a reasonable doubt had to be one the juror could articulate.
B. The trial court erred in giving a conflicting and confusing instruction on prior inconsistent statements.
IX. Prosecutorial misconduct denied a fair trial.
A. When the prosecutor told the jury `the defense witnesses' testimony doesn't really establish' alibi, and `I can't think any of you would consider that airtight testimony,' this prejudicially shifted the burden of proof.
B. The prosecutor elicited: (1) Defendant allegedly lived at or frequented a `drug house;' (2) he and friends had ganged up on the complainant and beaten him before the day of the alleged robbery; (3) after the alleged robbery, Defendant and some friends drove by complainant's mother's house, pointed weapons at her, and threatened her not to testify; and (4) Defendant's Grandmother's House had been subjected to a police raid at another time, and guns and drugs were seized, and (5) other persons were detained or arrested during this gun/drug raid. The prosecutor gave no pretrial notice of the intent to prove these other acts. This constituted a violation of MRE 404(b) and MRE 404(b)(2), which requires a new trial.
C. By stressing unrelated drugs, guns, and arrests of other persons, the prosecutor impermissibly encouraged the jury to convict Defendant on a theory of guilt by association.
D. When the prosecutor argued that Defendant had already gotten a `free pass' when complainant Butler did not prosecute him because of an earlier altercation, he injected issues broader than the guilt or innocence of the accused.
E. The prosecutor argued that the jury should excuse the discrepancy in the testimony as to the address of the offense given by Jack Butler to Officer Cole. He told the jurors that Officer Cole `had other police runs to make . . . He's had a million police runs since then . . . this busy officer . . . is trying to get as much information as he can, as quickly as he can, in the context of a whole night of making police runs and trying to keep the peace.' This argument was an impermissible appeal to the jury to perform their civic duty to support the police by ignoring inconsistent prosecution testimony and convicting Defendant.
X. Defendant was denied his constitutional right to the effective assistance of counsel.
A. Defense counsel ineffectively failed to request a limiting instruction on the effect of other acts evidence admitted against Defendant.
B. Defense counsel failed to object to testimony describing the house connected to Defendant by prosecution testimony as a drug house.
XI. The complainant testified that Defendant robbed him in front of a house. At the time, complainant's mother and two children were in a car parked on the street. After complainant returned to the car and drove off, he heard a gun discharge. The trial court assessed 25 points under OV-1 for discharging a weapon, and 10 points under OV-6 because the persons in the car were also victims. The trial court's scoring lacked a factual basis and requires resentencing.
Respondent urges the Court to deny the petition on the grounds that: (1) claims one through seven and eleven have not been exhausted and are not cognizable on habeas review; (2) claims eight and nine are barred by Petitioner's procedural default of failing to object to the alleged errors at trial; and (3) the state appellate decision rejecting Petitioner's tenth claim in light of the trial record constituted a reasonable application of Supreme Court precedent.
II. Discussion A. Exhaustion of State Remedies
The exhaustion doctrine, which is codified at 28 U.S.C. § 2254(b)(1), requires a state prisoner to "give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerekel, 526 U.S. 838, 842 (1999). Habeas petitioners alleging violations of their federal rights must alert the state courts that they are asserting their claims under the United States Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (listing the ways in which a prisoner can "fairly present" his claims to the state courts), cert. denied, ___ U.S. ___, 121 S.Ct. 1487 (2001).
Petitioner's habeas brief appears to be the same brief that he presented to the Michigan Court of Appeals. Claims one through five, seven, eleven, and parts of six and eight raise state law claims, not federal constitutional issues. Therefore, assuming that Petitioner presented the same brief to the Michigan Court of Appeals, he did not "fairly present" all his claims to the court of appeals as federal constitutional issues. Although he did raise federal constitutional claims in the Michigan Supreme Court, submission of a new claim to a state's highest court on discretionary review does not constitute fair presentation. Castille v. Peoples, 489 U.S. 346, 351 (1989).
The Court cannot be sure if the two briefs are the same because Respondent did not submit Petitioner's state appellate court brief, as presented to the Michigan Court of Appeals, with the rest of the state court record.
Normally, the failure to exhaust state court remedies for even one claim requires dismissal of the entire petition. See Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)), cert. denied, 530 U.S. 1203 (2000). However, the failure to exhaust state remedies is not an absolute bar when the claims are plainly meritless and it would be a waste of time and judicial resources to require exhaustion. Id.
Some of Petitioner's claims are noncognizable state law claims, and none of his claims warrant habeas relief. Therefore, the interest of comity and federalism will be served better by addressing Petitioner's claims than by requiring additional court proceedings. Accordingly, the Court will excuse Petitioner's failure to exhaust all his claims as federal constitutional issues in the court of appeals and will proceed to address Petitioner's claims. 28 U.S.C. § 2254(d)(2).
B. Standard of Review
Petitioner is entitled to habeas relief only if he can show that the state court's adjudication of his claims 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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). 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, 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 v. Taylor, 529 U.S. 362, 412-13 (2000).
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
C. The Evidentiary Claims
Claims one through seven challenge the trial court's rulings on the admission or exclusion of evidence. "Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994); see also Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (explaining that errors in rulings on the admission or exclusion of evidence usually are not questioned in a federal habeas corpus proceeding unless the errors violate a fundamental principle of justice), cert. denied, ___ U.S. ___, 121 S.Ct. 1643 (2001). The Court has concluded for the following reasons that the trial court's rulings did not violate the Constitution or were harmless error.
1. Evidence of Other Guns
Petitioner's first claim alleges that the trial court erred in ruling that evidence of other guns was relevant and admissible. The Michigan Court of Appeals agreed with Petitioner that testimony concerning guns, which were confiscated by the police in connection with another case, was neither material nor probative of a matter at issue. The court of appeals concluded, however, that the error was harmless because "the reference to the guns was fleeting, the guns and narcotics in question were not tied to [Petitioner], and there was no indication that [Petitioner] was arrested on charges stemming from the seizure of these items." Chavies, Mich. Ct. App. No. 208825, at 1.
The Supreme Court has held that, "before a federal constitutional error can be held harmless [on direct review], the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967). A police officer testified at Petitioner's trial that guns and drugs were taken from 2559 or 2565 Helen Street and that arrests were made there in connection with another case, not the robbery case. See Tr., 69-71. Although the drugs and narcotics were found near the site of the armed robbery, there was no evidence that Petitioner was charged in the drugs and narcotics case. In fact, Ruth Hobson, who lived at 2559 Helen Street, intimated during her testimony that the police took guns and drugs from her place when they arrested her son, not Petitioner, who was her grandson. See id. at 88, 91.
On habeas review, the standard is whether the constitutional error had a "substantial and injurious effect or influence on the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
The Court does not have a grave doubt whether the alleged evidentiary error had a substantial and injurious effect or influence on the jury's verdict. O'Neal v. McAnich, 513 U.S. 432, 436 (1995); Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Therefore, the state court's finding of harmless error was not contrary to, or an unreasonable application of, Chapman, and Petitioner has no right to habeas relief on the basis of his first claim. 28 U.S.C. § 2254(d)(1); Barker v. Yukins, 199 F.3d 867, 871-74 (6th Cir. 1999), cert. denied, 530 U.S. 1229 (2000).
2. Evidence of a LEIN check
Petitioner alleges next that the trial court erroneously determined that Detective Gene Fular was an unavailable witness and that the officer in charge of the case, Kenneth Christensen, could testify in Fular's absence. Christensen testified that Fular had performed a computer search of the Law Enforcement Information Network (LEIN) and determined that Petitioner's address was 2559 Helen Street. See Tr., 73-74. Petitioner claims that the testimony was inadmissible hearsay and that Fular's unavailability was irrelevant. Petitioner asserts that the testimony was prejudicial because it linked him to the site of the crime, and it contradicted his own testimony that he lived on the other side of town.
The Michigan Court of Appeals determined that there was no evidence in the record to support the trial court's finding that Detective Fular was unavailable to testify. The court of appeals declined to reverse Petitioner's conviction, however, because, in its opinion, the trial court reached the right result. The court of appeals noted that the results of the LEIN check were admissible under the business-records exception to the hearsay rule.
Petitioner contends that the evidence did not qualify under the Michigan Rules of Evidence for the business-records exception to the hearsay rule. The Court, however, may not testimony presented by [Petitioner]." Chavies, Mich. Ct. App. No. 208825, at 2. The court of appeals found no abuse of discretion in admitting Parker's testimony about Jack Butler's remarks to her over the telephone because "a sufficient foundation was established to qualify the statements as an excited utterance" under state law. Id.
The alleged errors did not rise to the level of a constitutional error, and the Court may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley, 465 U.S. at 41. Therefore, Petitioner is not entitled to habeas relief on the basis of claims three, four, and five.
4. Admission of Other Acts
Petitioner testified on direct examination by his attorney that he did not have a criminal record. See Tr., 102. On cross-examination, the prosecutor asked Petitioner about his misdemeanor convictions for domestic violence and his arrest on another matter. See id. at 106-08. Petitioner's sixth claim is that the trial court erred in allowing the prosecutor to introduce evidence of his prior convictions and an arrest that did not result in a conviction.
a. Prior Convictions
The Supreme Court has stated that, "[o]nce the defendant testifies, she [or he] is subject to cross-examination, including impeachment by prior convictions. . . ." Ohler v. United States, 529 U.S. 753, 757 (2000). Because Petitioner testified at trial and claimed not to have a criminal record, the prosecutor was permitted to impeach him with his prior convictions. Therefore, the state appellate court's decision that the convictions were admissible to rebut Petitioner's testimony on direct examination was not contrary to, or an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
b. Prior Arrest
An "[a]rrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness." Michelson v. United States, 335 U.S. 469, 482 (1948).
The prosecutor, nevertheless, asked Petitioner on cross-examination about being in jail in Calhoun County. Defense counsel did not object to the question, and Petitioner acknowledged the arrest in response to the prosecutor's question.
Although the prosecutor's inquiry was improper, Petitioner made it clear that he was sent to jail on a traffic warrant. See Tr., 108. The prosecutor did not pursue the matter, and he did not mention the arrest in his closing argument. The Court therefore concludes that the error did not have a "substantial and injurious effect or influence on the jury's verdict" and was harmless. Brecht, 507 U.S. at 623.
5. Precluding Testimony
Petitioner testified on direct examination by his attorney that he did not take any money from Jack Butler and did not point a shotgun at him. Defense counsel then asked Petitioner to give an explanation as to why Butler would testify that Petitioner robbed him at gunpoint. Petitioner responded by saying that he (Petitioner) did not have a criminal record and Jack Butler did. The prosecution objected on the grounds that Petitioner's testimony was speculation. The trial court called the answer "unresponsive" and told the jury to disregard the testimony. See Tr., 101-03. Petitioner's seventh claim is that the trial court erred when it excluded his explanation of the ongoing hostility between him and Jack Butler.
Petitioner had a constitutional right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Moreover, "[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. 45, 52 (1984).
As the Michigan Court of Appeals recognized, however,
the victim's animosity towards [Petitioner], and existence of a motive to fabricate, was apparent from the testimony of other witnesses who testified about the earlier fight between [Petitioner] and the victim, and trial counsel was able to sufficiently advance the defense theory during closing argument that [Petitioner] was not at the house at the time in question and that the victim was fabricating the charges because of the earlier fight.Chavies, Mich. Ct. App. No. 208825, at 2.
The Court concludes for the same reasons that, although the trial court infringed on Petitioner's constitutional right to present a defense, the error was harmless. Brecht, 507 U.S. at 623. Petitioner is not entitled to habeas relief on the basis of his claim that the trial court excluded evidence of bias.
D. The Jury Instructions
Petitioner's eighth claim is that the trial court's instructions on reasonable doubt and prior inconsistent statements deprived him of a fair trial. Petitioner asserts that the reasonable doubt instruction was erroneous because it prevented the jurors from using their imaginations and because it required jurors to have a reason for a doubt. Petitioner complains that the instruction addressed to Jack Butler's prior inconsistent statement was not the standard instruction, that it was clearly erroneous, and that it did not explain the proper use of such statements. Respondent argues that claim eight is barred from review by Petitioner's failure to object to the jury instructions at trial. The Court agrees.
1. The Doctrine of Procedural Default
As succinctly explained by the Sixth Circuit,
[w]hen a habeas petitioner fails to obtain consideration of a claim by a state court. . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case.Seymour v. Walker, 224 F.3d at 549-50; accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989).
In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the Sixth Circuit set forth a four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review:
First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. See id. A procedural rule is adequate only when it is firmly established and regularly followed at the time it was applied. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). The rule would be an independent basis for disposition of a case if the state courts actually relied on the procedural bar. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. See Maupin, 785 F.2d at 138.Williams. v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001).
2. The Rule: Violation of the Rule: Reliance on the Rule
A defendant must make a contemporaneous objection at trial in order to obtain appellate review of a challenge to the jury instructions. People v. Van Dorsten, 441 Mich. 540, 544-45 (1993) (quoting People v. Kelly, 423 Mich. 261, 271-72 (1985)). Petitioner violated this rule by not objecting at trial to the jury instructions. See Tr., 150, 153, 158-59.
The court of appeals clearly stated in its opinion that appellate relief was foreclosed, absent manifest injustice, because Petitioner did not object to the jury instructions at trial. The state court's alternative analysis under a manifest-injustice standard does not preclude this Court from concluding that Petitioner's claim is procedurally defaulted. Harris, 489 U.S. at 264 n. 10; Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989).
Petitioner does not deny that the contemporaneous-objection rule was firmly established and regularly followed at the time of his trial. Furthermore, the Supreme Court has determined that failure to comply with a state's contemporaneous-objection rule is an adequate state ground for denying appellate consideration of an objection. See Engle v. Isaac, 456 U.S. 107, 125 (1982). Therefore, in order to obtain habeas review of his eighth claim, Petitioner must show cause for not objecting at trial to the jury instructions and resulting prejudice. Alternatively, Petitioner must show that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986).
3. Cause and Prejudice: Miscarriage of Justice
Petitioner has not alleged cause for his procedural default. Therefore, the Court need not determine whether he was prejudiced by the alleged constitutional error. Smith v. Murray, 477 U.S. 527, 533 (1986).
The only remaining question is whether a constitutional violation probably resulted in the conviction of one who is actually innocent. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner has not submitted any new evidence that was not presented at trial. Therefore, he cannot make a credible claim of actual innocence. The Court concludes that Petitioner's claim about the jury instructions is procedurally defaulted and barred from substantive habeas review.
E. Alleged Prosecutorial Misconduct
Petitioner's ninth claim challenges the prosecutor's conduct. Specifically, Petitioner alleges that the prosecutor: (1) shifted the burden of proof by saying that the defense witnesses did not establish an alibi defense; (2) elicited evidence that: (a) Petitioner lived at, or frequented, a drug house, (b) Petitioner ganged up on Jack Butler and beat him the day before the alleged robbery, (c) Petitioner and his friends threatened Jack Butler's mother in an attempt to get her not to testify, (d) the police raided Petitioner's grandmother's house at another time and seized guns and drugs, and (e) other persons were detained or arrested during this gun and drug raid; (3) encouraged the jury to convict Petitioner on a theory of guilt by association by stressing unrelated drugs, guns, and arrests of other persons; (4) injected issues broader than the guilt or innocence on the accused; and (5) appealed to the jurors' civic duty. Respondent argues that these claims are barred by Petitioner's procedural default of failing to object to the alleged errors at trial.
1. Conduct to Which Petitioner did not Object
Criminal defendants must object at trial to improper prosecutorial conduct in order to preserve a claim of prosecutorial misconduct for appellate review. See People v. Ullah, 216 Mich. App. 669, 679 (1996) (citing People v. Stanaway, 446 Mich. 643, 687 (1994)). Petitioner violated this rule by not objecting to many of the prosecutor's remarks. See Tr., 27-28 (comments about the alibi defense); id. at 119-20 (evidence that Petitioner frequented a drug house); id. at 28 (evidence that Petitioner previously ganged up on Jack Butler and beat him); id. at 146-47 (issues allegedly broader than the guilt or innocence of the accused); id. at 147-48 (the alleged civic-duty argument).
The Michigan Court of Appeals relied on the contemporaneous-objection rule by noting that Petitioner failed to object at trial to the alleged misconduct. The state court's alternative holding (that the disputed conduct was not improper or that it could have been cured with an appropriate instruction) does not preclude application of the procedural default doctrine. Harris, 489 U.S. at 264 n. 10; Paprocki, 869 F.2d at 285.
The contemporaneous-objection rule was firmly established and regularly followed at the time of Petitioner's trial, and the state appellate court clearly relied on it. Furthermore, with one exception, Petitioner has not alleged "cause" for his failure to object at trial. Petitioner alleges that trial counsel was cause for his failure to object to testimony that Petitioner lived at, or frequented, a drug house.
Constitutionally ineffective assistance is cause for a procedural default. Carrier, 477 U.S. at 488. However, to demonstrate ineffective assistance, Petitioner must show that defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Even assuming that defense counsel's performance was deficient, the evidence of Petitioner's guilt on the charged offense was overwhelming. There is not a reasonable probability that, but for defense counsel's failure to object to evidence that Petitioner lived at, or visited, a drug house the verdict would have been different. Consequently, Petitioner has not shown that his trial attorney's performance was prejudicial.
In summary, Petitioner has not satisfied the two-prong test of Strickland. Therefore, ineffective assistance of counsel has not been established, and it cannot serve as "cause" for Petitioner's procedural default.
The Court need not determine whether Petitioner was prejudiced by the alleged prosecutorial misconduct because he has not established "cause." Smith, 477 U.S. at 533. And, as previously explained, Petitioner has not asserted a credible claim of actual innocence. The Court concludes that claims about alleged prosecutorial misconduct to which Petitioner did not object are procedurally defaulted and barred from substantive habeas review.
2. Conduct to Which Petitioner Did Object
Petitioner did attempt to prevent testimony that he and his friends threatened Jack Butler's mother before trial. See Tr., 47-48. He also objected to evidence that the police seized guns and drugs from one of the houses on Helen Street and arrested other persons. See Tr., 69-70. Therefore, the state appellate court's reliance on the contemporaneous-objection rule for these claims was not an adequate and independent ground to foreclose review.
A claim of prosecutorial misconduct, however, requires showing that the misconduct was so egregious as to render the entire trial fundamentally unfair and the resulting conviction a violation of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). When determining whether a petitioner's right to due process was violated, the Court looks at the totality of the circumstances. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982).
The prosecutor did not err in eliciting testimony that Petitioner and his friends threatened to harm a prosecution witness if she testified, because the testimony was relevant evidence. It suggested that Petitioner had a guilty conscience and that he was afraid to let the truth be known.
Testimony about an unrelated case involving drugs, guns, and other people was not relevant to Petitioner's armed robbery case. However, there was no evidence linking Petitioner to that case. The Court concludes that the prosecutorial conduct about which Petitioner objected was not improper or so egregious that it violated Petitioner's right to due process. Accordingly, the state court's denial of relief was not contrary to, or an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d)(1); Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000).
F. Alleged Ineffective Assistance of Counsel
Petitioner's tenth claim alleges ineffective assistance of trial counsel. Petitioner asserts that his trial attorney should have (1) requested a limiting jury instruction on the effect of other acts evidence admitted against Petitioner, and (2) objected to testimony describing the house connected to Petitioner as a drug house.
The Michigan Court of Appeals rejected this claim. To prevail on habeas review, Petitioner must show that the state court's conclusion was contrary to, an unreasonable application of, Strickland. The Supreme Court established in Strickland that counsel is ineffective when his or her performance is deficient and the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687.
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. The prejudice prong requires demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
1. Failure to Request a Jury Instruction on Prior Convictions
Defense counsel specifically asked the trial court not to instruct the jury on Petitioner's prior convictions. See Tr., 111-12. The Michigan Court of Appeals subsequently opined that Petitioner had not overcome the presumption that his attorney's decision was a matter of sound trial strategy.
Courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Failure to request an instruction on impeachment by prior conviction was sound trial strategy because the jury instruction would have emphasized Petitioner's false testimony that he did not have a criminal record. The instruction would have encouraged the jury to evaluate Petitioner's credibility in light of an apparent lie. Therefore, the state appellate court's decision was a reasonable application of Strickland, and Petitioner has no right to habeas relief on the basis of his first allegation of ineffective assistance. 28 U.S.C. § 2254(d)(1).
2. The References to Petitioner's Home as a Drug House
Dione Parker testified that Petitioner could sometimes be found at the house next door (2565 Helen Street), which she described as "a crackhead's house" and a place where people sold drugs. See Tr., 119-21. The court of appeals concluded that Petitioner's failure to object to the isolated references to 2565 Helen Street as a drug house did not affect the outcome of the proceedings and, therefore, did not deprive Petitioner of effective assistance.
This Court agrees. The evidence of guilt on the charged offense was overwhelming. Furthermore, the prosecutor used the testimony about Petitioner's presence at the alleged drug house to rebut the alibi defense, not to establish that Petitioner was involved with illegal drugs. The verdict likely would not have been different if defense counsel had objected to evidence that Petitioner lived at, or visited, a drug house and the trial court had sustained the objection. Therefore, the state appellate court's decision was a reasonable application of Strickland, and Petitioner has no right to habeas relief. 28 U.S.C. § 2254(d)(1).
G. Scoring of the Sentencing Guidelines
Petitioner's eleventh and final claim is that the trial court's scoring of certain offense variables of the sentencing guidelines lacked a factual basis and requires re-sentencing. The Michigan Court of Appeals declined to grant relief on this claim because the claims were based on the trial court's application of unchallenged facts and because Petitioner's sentence was proportionate under state law.
The Court may grant the writ of habeas corpus only if Petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) and 2254(a). Consequently, Petitioner's argument that the trial court mis-scored the sentencing guidelines and violated state law is not a basis for habeas relief. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000); Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987). III. Conclusion
Petitioner does not claim that the information relied on by the trial court violated his constitutional right not to be sentenced on the basis of "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S. 443, 447 (1972)).
For all the reasons given above, the Court has concluded that Petitioner's claims do not warrant the writ of habeas corpus. Accordingly, the application for a writ of habeas corpus is DENIED.
The Court DECLINES to issue a certificate of appealability, because reasonable jurists would not find the Court's assessment of Petitioner's constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Nor would reasonable jurists be likely to conclude that the Court's ruling on the procedurally defaulted claims was incorrect and that Petitioner has stated a valid claim of the denial of a constitutional right. Id.