Opinion
Civil No. 98-CV-75576-DT.
February 4, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Jose Cosme ("petitioner"), presently confined at the Gus Harrison Correctional Facility in Adrian, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his jury conviction on one count of criminal sexual conduct, first degree, M.C.L.A. 750.520b; M.S.A. 28.788(2). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner's conviction arose out of an incident which occurred in Somerset Township, Michigan on November 1, 1993. The victim in this case was petitioner's fourteen year old niece. Petitioner had been living with the victim's family. On the night in question, the victim was awakened by the petitioner at 4:00 a.m. and was forced to engage in sexual intercourse with petitioner. Over defense counsel's objection, the victim testified about prior occasions where petitioner forced her to engage in anal, oral, or vaginal sex.
The offenses were reported to the police after the victim's mother discovered "love letters" that had been written between the victim and petitioner. Petitioner was arrested and taken to the Hillsdale County Jail. A detective for the Michigan State Police testified that he took a statement from petitioner, in which petitioner admitted to having sexual intercourse with the victim.
Petitioner testified in his own behalf. He denied sexually assaulting the victim and did not remember making a statement to the police. Petitioner admitted that in some of the letters that he sent to the victim, he spoke about making love to her. Petitioner maintained, however, that the letters were just fantasies. Petitioner also wrote a letter from the jail to the victim's mother, apologizing for the what he had done to the victim.
Petitioner did not timely file his claim of appeal. The Michigan Court of Appeals denied petitioner's delayed application for leave to appeal because the application for leave to appeal was filed more than twelve months after entry of judgment. People v. Cosme, 192576 (Mich.Ct.App. April 25, 1996); lv. den. 454 Mich. 862; 558 N.W.2d 730 (1997). Petitioner thereafter filed a motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. The trial court denied the motion on the ground that petitioner had failed to establish cause for the failure to raise the grounds asserted in the motion on direct appeal and that no actual prejudice resulted from the irregularities claimed. People v. Cosme, Hillsdale County Circuit Court # 18-6997, Order dated September 12, 1997. The Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal. People v. Cosme, 204735 (Mich.Ct.App. March 12, 1998); lv. den. ___ Mich. ___; 589 N.W.2d 285 (1998). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Petitioner was denied a fair trial where the prosecutor introduced, and the judge allowed, testimonial evidence of Mr. Cosme's other bad acts.
II. Petitioner was denied due process and a fair trial when the prosecutor elicited, without notice and without a Walker hearing, a police officer's testimony which implied that petitioner had either confessed and/or that he perjured himself on the stand.
III. Petitioner was denied his federal and state constitutional rights to a properly instructed jury where the trial judge gave an incorrect reasonable doubt instruction.
IV. Petitioner's Fifth Amendment right against self-incrimination was violated when police improperly questioned him without procedural safeguards.
V. Petitioner's Sixth Amendment right was violated when he received ineffective assistance of trial and appellate counsels.
VI. The total weight of the errors committed at trial level violated petitioner's right to due process and require reversal of his conviction.II. STANDARD OF REVIEW 28 U.S.C. § 2254 (d) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ of habeas corpus may issue on the ground that a state court decision was an unreasonable application of clearly established Federal law if the unreasonableness of the state court's application of clearly established precedent is not debatable among reasonable jurists, and the unreasonableness of the application will not be debatable if it is so offensive to the precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes. Tucker v. Prelesnik, 181 F.3d 747, 753 (6th Cir. 1999).
III. DISCUSSION
I. Petitioner's claims are procedurally defaulted because he did not raise them in his appeal of right.
In the present case, petitioner lost his appeal of right because he did not sign and complete the request for appellate counsel form and the accompanying financial schedule and return it to the Hillsdale County Circuit Court within 42 days of the date of the judgment of sentence on June 6, 1994. Appellate counsel was not appointed until November 22, 1995, after petitioner sent a letter to the trial court on September 25, 1995 inquiring about the appointment of counsel. When counsel filed the application for leave to appeal, the Michigan Court of Appeals rejected the appeal on the grounds that it had not been filed within twelve months of the judgment. Petitioner then filed a motion for relief from judgment, in which he raised the claims that he now brings in this petition. The Michigan courts rejected petitioner's motion for relief from judgment on the ground that he had failed to establish good cause for failing to raise the issues in an appeal of right and had also failed to show that he had suffered actual prejudice.
Respondent contends that petitioner is now procedurally defaulted from bringing these claims because he did not raise them in an appeal of right. Petitioner contends that he can establish cause to excuse the procedural default. Petitioner first indicates that on the date of sentence, he signed a Notice of Right to Timely Appeal and gave it to the court. Petitioner acknowledges that he did not sign the part of the form requesting the appointment of appellate counsel and did not fill out the financial schedule on the back of the form at the time that he returned this form. Petitioner, however, argues that because the trial court had already determined that he was indigent, it would have been redundant for him to have to fill out the financial form.
Sentence Transcript, p. 9; Petitioner's Exhibit 1.
Petitioner further argues that the Michigan Court of Appeals erred in rejecting his delayed application for leave to appeal, first because they applied the twelve month time limit for filing an application for leave to appeal, when at the time of petitioner's conviction, the applicable court rules gave petitioner 18 months from the date of judgment to file an application for leave to appeal. Petitioner further contends that because the transcripts were not filed by the court reporter until November 29, 1995, M.C.R. 7.205(F)(4) would give him additional time to file the appeal.
Even assuming that petitioner has established cause for his default, he is unable to satisfy the prejudice prong of the exception to the procedural default rule. The cause and prejudice exception is conjunctive, requiring proof of both cause and prejudice. Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995). Because petitioner's claims are without merit, he has failed to establish the prejudice prong to excuse his default. Petitioner has also offered no new reliable evidence that was not presented at trial to support a claim of innocence which would excuse his default. See Schlup v. Delo, 513 U.S. 298, 324 (1995). The claims are procedurally defaulted. However, the court will briefly address the merits of petitioner's claims.
II. Petitioner's claims are without merit.
A. Claim # 1. Petitioner's claim that the trial court impermissibly permitted testimony about other acts of sexual misconduct is without merit.
Petitioner first contends that the trial court erred in permitting the victim to testify about prior incidents of criminal sexual conduct which took place between the victim and petitioner.
A federal habeas court will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of law. Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989). The inquiry in reviewing a claim of improper admission of prior bad acts evidence is whether the evidence was rationally connected to the crime charged. Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980).
In the present case, the "other acts" evidence involved other acts of sexual misconduct between the victim and petitioner. This evidence was rationally connected to the crime. Admission of such evidence, particularly in light of the other evidence against petitioner, was not unduly prejudicial. Petitioner has failed to show that admission of such testimony violated his right to due process. His first claim is without merit.
B. Claims # 2 and 4. Petitioner is not entitled to the issuance of a writ of habeas because he has failed to show that his confession was involuntary or obtained in violation of his Fifth Amendment rights.
Petitioner's second and fourth claims have been consolidated because they essentially make the same claim. At trial, Lieutenant Robertson testified that prior to obtaining the confession from petitioner, he read petitioner his Miranda rights from a printed form provided by his department. Robertson acknowledged that he did not give petitioner any written rights nor did he obtain a written waiver of his rights from him prior to obtaining his confession.
T. pp. 60, 62.
To prevail on a Fifth Amendment claim, a habeas petitioner must demonstrate that:
1. his statements were obtained by the police in violation of Miranda;
2. the state court committed error in permitting the prosecution to use these improper statements; and
3. the error had a substantial and harmful influence on the jury's determination of its verdict.Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999).
A habeas petitioner seeking relief on grounds that a confession was involuntary has the burden of proving facts that would lead a habeas court to conclude that the confession was involuntary. Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987).
Petitioner now contends that his statement was inadmissable because the police did not obtain a written waiver of his rights from him and never gave him his Miranda warnings in writing.
An explicit statement of waiver is not invariably necessary to support a finding that a defendant waived the right to remain silent or the right to counsel guaranteed by Miranda. North Carolina v. Butler, 441 U.S. 369, 373-376 (1979). Because petitioner does not deny that he received adequate oral Miranda warnings, this issue is without merit. Allen v. Morris, 863 F.2d 883, 1988 WL 128004 (6th Cir. December 2, 1988).
Petitioner's related claim that the Miranda warnings were never given to him in writing is equally without merit. Miranda warnings need not be given in writing. State v. Wilding, 638 A.2d 519, 521 (R.I. 1994) (citing to Miranda v. Arizona, 384 U.S. 436, 490 (1966)).
Because petitioner has offered no facts which would lead to a conclusion that his statement was involuntary or obtained in violation of Miranda, he has failed to state a claim upon which habeas relief can be granted.
C. Claim # 3. The reasonable doubt instruction given by the trial court was not defective.
Petitioner contends that the instructions given by the trial court defining reasonable doubt were defective. During preliminary instructions, the court gave the following instruction to the jury:
Now, I mentioned the term and the definition called reasonable doubt. A reasonable doubt is a fair, honest doubt. It's not an imaginary doubt or a doubt — flimsy, fanciful doubt. It's also not a doubt that's based on a mere possibility. It's a doubt that grows out of the evidence or lack of evidence that's presented in any case. It's a state of mind which would cause you to hesitate in making an important decision in your own personal life. It's up to Mr. Smith, the prosecutor, to prove guilt beyond a reasonable doubt. That means there must be such evidence produced that causes you to have a firm conviction to a moral certainty of the truth here made on this charge against this defendant.
T.pp. 14-15.
In the final charge to the jury, the trial court gave the jury a similar instruction on reasonable doubt although it did not contain the moral certainty language.
T. p. 168.
The Sixth Circuit recently held that Michigan's reasonable doubt jury instruction, which states that a reasonable doubt is a "fair, honest doubt growing out of the evidence or lack of evidence" satisfies the Due Process Clause. Binder v. Stegall, 198 F.3d 177, 178-179 (6th Cir. 1999). Moreover, use of the term `moral certainty' in the initial reasonable doubt instruction did not impermissibly lower the burden of proof in violation of due process, where the rest of the instruction defined reasonable doubt as being the kind of doubt that would cause a person to hesitate to act in any of the important decisions of life. See Ferrazza v. Tessmer, 36 F. Supp.2d 965, 974-975 (E.D. Mich. 1999). Moreover, equating reasonable doubt with some other measure of doubt did not deprive petitioner of a fair trial because the trial court also instructed the jury that: (1) the petitioner was presumed innocent; (2) the burden of proof never shifted from the prosecution; (3) the petitioner was not required to come forward with any evidence; and (4) a failure to prove guilt beyond a reasonable doubt must result in an acquittal. Grant v. Rivers, 920 F. Supp. 769, 785 (E.D. Mich. 1996). Petitioner has failed to state a claim upon which habeas relief can be granted.
D. Claim # 5. Petitioner was not deprived of the effective assistance of counsel.
Petitioner next claims that he was deprived of the effective assistance of trial and appellate counsel.
A. Claims against Trial Counsel.
1. Counsel failed to object to petitioner being compelled to stand trial in jail garb.
Petitioner first contends that trial counsel was ineffective in failing to object to him having to stand trial while dressed in jail or prison clothes. The overwhelming weight of evidence of defendant's guilt makes it impossible for him to demonstrate prejudice resulting from trial counsel's alleged ineffectiveness in failing to object when petitioner was tried while wearing jail clothing. Simmons v. Taylor, 195 F.3d 346, 349 (8th Cir. 1999).
2. Counsel failed to move for a hearing to determine the voluntariness of his confession.
Petitioner has already failed to establish that his confession was obtained in violation of the Fifth Amendment. Petitioner has failed to show prejudice from trial counsel's failure to move to suppress his confession because he has failed to assert any facts which would indicate that his statement was involuntarily made. See Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998).
3. Counsel failed to object to the deficient reasonable doubt instruction.
The reasonable doubt instruction given by the trial court was not constitutionally defective. Trial counsel was therefore not ineffective for failing to object to an adequate reasonable doubt instruction. See Carillo v. United States, 995 F. Supp. 587, 591-593 (D. Virgin Islands 1998).
4. Counsel failed to object to the victim's testimony concerning petitioner's "prior bad acts."
This claim is meritless because petitioner's counsel did object to the victim testifying about the other acts of sexual misconduct for which petitioner was not on trial.
Trial T., pp. 98-99.
B. Claims against Appellate Counsel.
1. Appellate counsel failed to perfect an appeal of right for petitioner.
This first claim is without merit because appellate counsel was not appointed to represent petitioner until November 22, 1995. This was due to the fact that petitioner failed to complete the request for the appointment of appellate counsel and the accompanying financial forms and return them to the trial court within forty two days as required under M.C.R. 6.425(F)(1)(b), even though the trial court advised petitioner of his appellate rights at sentencing and informed him to complete and return the forms within forty two days. M.C.R. 7.204(A)(2)(c) states that an appeal by right in a criminal case must be taken within 42 days after entry of the judgment. The Michigan Court Rules do not have any provisions for reviving an appeal of right once it is lost. Instead, a defendant who loses his appeal by right is required to file an application for leave to appeal, which appellate counsel did in this case. M.C.R. 7.205(F)(1). Because appellate counsel was appointed well after the forty two day period for filing an appeal of right expired, she was not ineffective for failing to perfect petitioner's appeal of right.
Sentence T. p. 9.
2. Counsel did not timely file the application for leave to appeal.
Petitioner next asserts that appellate counsel was ineffective for failing to timely file an application for leave to appeal. Because there is no constitutional right to the effective assistance of counsel on a discretionary appeal, petitioner cannot claim that counsel was ineffective for failing to timely file the appeal. Wainwright v. Torna, 455 U.S. 586, 587-588 (1982).
3. Counsel failed to move for a trial based on trial counsel's ineffectiveness.
Since petitioner's ineffective assistance of trial counsel issue is without merit, it would be impossible for petitioner to establish that appellate counsel's failure to raise the ineffective assistance of trial counsel issue on appeal was prejudicial. See United States ex. rel. Thirston v. Gilmore, 986 F. Supp. 491, 502 (N.D. Ill. 1997).
4. Counsel failed to visit petitioner.
No minimum number of meetings are required for counsel to provide reasonably effective representation, and while face to face meetings might be preferable, the record shows that there was an open line of communication between petitioner and appellate counsel through the mail. Calhoun v. Farley, 913 F. Supp. 1218, 1223 (N.D. Ind. 1995).
C. Conclusion
Petitioner has failed to establish that he was deprived of the effective assistance of counsel.
E. Claim if 6. Petitioner is not entitled to habeas relief based on cumulative errors.
The lack of any errors at trial precludes a habeas petitioner's cumulative errors claim. Sanders v. Sullivan, 701 F. Supp. 1008, 1013 (S.D.N.Y. 1988). Since no errors occurred at petitioner's trial, his last claim is without merit.
HON. AVERN COHN
UNITED STATES DISTRICT COURT
DATED: FEB 04 2000