Opinion
Civil No. 03-CV-10315-BC.
March 23, 2005
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Barbara Jean Cross, presently confined at the Scott Correctional Facility in Plymouth, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her application, filed pro se, petitioner challenges her convictions of one count of first-degree murder, Mich. Comp. Laws § 750.316; one count of conspiracy to commit first-degree murder, Mich. Comp. Laws § 750.157a; and one count of solicitation of first-degree murder, Mich. Comp. Laws § 750.157b(2), contending that the trial Court failed to investigate whether jurors were exposed to extraneous information by a dismissed juror, there was insufficient evidence to support the convictions, hearsay evidence was improperly allowed, the prosecutor engaged in misconduct, her own counsel was ineffective, and the cumulative effect of these errors denied her a fair trial. The respondent filed a response to the petition on June 28, 2004. The Court finds that some of the petitioner's claims are procedurally defaulted, and the others lack merit. The Court, therefore, will deny the petition.
I.
The petitioner's former husband, Gary Roy, was shot to death in his Gladwin County, Michigan home on October 15, 1999 by Gordon Dittmer, an ex-convict. The prosecution's theory was that the petitioner conspired with John Benjamin, her former lover, to murder Roy because she believed that she would profit financially from his death by obtaining life insurance proceeds and succeeding to his interest in the former marital home and farm. The petitioner's version was that John Benjamin, with whom the petitioner was living at the time, came to the idea of killing Roy on his own, and he conspired with his brother, Billy Joe Benjamin, and hired Dittmer to carry out his plan so that he could benefit from the property the petitioner would stand to inherit while simultaneously eliminating a competing love interest.
The petitioner's defense was substantially blemished when Benjamin agreed to testify against the petitioner in exchange for a guilty plea to second-degree murder under an agreement that limited his sentence to twenty-five to fifty years in custody, which could be served in federal prison. Benjamin testified that he met the petitioner shortly after he was released from prison in August of 1999. He began a sexual relationship with her and lived with her in a house she shared with her ex-husband, Gary Roy. Roy had a truck driving job that kept him out of town during the week. On the weekends when Roy returned, Benjamin would live at his sister's house.
Benjamin testified that in late August of that year, the petitioner told him in jest that she wished Roy was dead. But later she told Benjamin that she earnestly wanted Roy dead, explaining that she could collect life insurance money and obtain the former marital home Roy owned pursuant to their judgment of divorce.
According to Benjamin, at the end of September 1999, the petitioner conceived a plan in which Benjamin would find Roy on a trucking run in another state and murder him, making the attack look like a robbery by an unknown person. Benjamin said he had no intention of committing the murder himself, yet he followed Roy to the Chicago area at the petitioner's request. After this event, the petitioner continued to encourage Benjamin to attack Roy. On October 8, 1999, the petitioner drew a diagram of the cab of Roy's truck for Benjamin. She told Benjamin where Roy slept in the truck and advised him how to shoot Roy in the head while he slept there. She also supplied Benjamin with Roy's driving routes. Benjamin again left Michigan to search for Roy in accordance with the plan. The petitioner made a number of telephone calls to Roy on October 9 and 10, 1999 attempting to locate him for Benjamin. She then called Benjamin in Ohio and disclosed when Roy intended to be at various locations in Pennsylvania, Indiana, and Michigan. Benjamin testified that he could not murder Roy himself, so he fabricated a number of excuses for failing to go through with the murder.
Roy returned to Michigan to visit his father at a Midland Hospital. Benjamin said that the petitioner proposed that he run Roy off the road as he returned from Midland and kill him. Benjamin did not want to kill Roy himself and suggested instead that the petitioner hire a prison friend of his, Gordon Dittmer whom Benjamin met in prison, to shoot Roy. The petitioner agreed and instructed Benjamin to offer Dittmer $100,000 to be paid from Roy's life insurance proceeds. The petitioner agreed to give Dittmer $500 and a used car as an advance payment.
Benjamin testified that on October 14, 1999 he drove to Dittmer's house in Lansing. Benjamin asked Dittmer to murder Roy on the terms proposed by petitioner, and Dittmer agreed. The next morning, Benjamin took Dittmer to a post office in Rhodes, Michigan for a meeting with the petitioner. Dittmer remained in Benjamin's car while Benjamin met the petitioner and identified the man in his car as Dittmer, the "guy who was gonna do the hit" that evening at the house Roy shared with the petitioner. Trial Tr. vol. II at 93. Benjamin and the petitioner made plans to be away from the house that evening with the children so they would have alibis. They agreed to meet later that afternoon and spend an evening at the Sportsman's Bar, then stay the night at a motel in Pinconning under the pretense of celebrating the birthday of the petitioner's son, Ryan.
On October 15, 1999, Benjamin picked up Dittmer from Lansing and deposited him at the Sportsman's bar close to Roy's house. Benjamin then stole a rifle from a home and with the help of his nephew, Billy Joe, obtained some ammunition. Billy Joe test fired the rifle twice, reloaded the weapon, wiped his fingerprints off of it, and hid the rifle under his bed. Benjamin went to meet with the petitioner.
The petitioner brought her two sons to meet with Benjamin around 4:00 p.m. She gave Benjamin a check for $620, which Benjamin cashed to use for Dittmer's advance payment. The petitioner then took Benjamin and her two sons to a motel room near the Sportsman's bar and went inside the bar.
Benjamin testified that he and Dittmer left the petitioner at the bar to prepare for the murder. They went to a store and bought galoshes, gloves, and a hat for Dittmer to wear when he shot Roy. Later, they went to Billy Joe's house where Billy Joe handed them the rifle out of a window. All three of the men then left to conduct reconnaissance of Roy's house. According to Benjamin, they discussed the best way to approach the house, where to park the car, how to shoot Roy, and how Dittmer should escape after the killing. Dittmer brought John and Billy Joe Benjamin to the bar and received the advance payment from John Benjamin. John Benjamin asked Dittmer to give the others a couple of hours at the bar to establish an alibi before committing the murder. He further reminded Dittmer to make the shooting look like a robbery and told Dittmer where to hide the gun and clothes after carrying out the murder. Dittmer left with Benjamin's vehicle.
Dittmer then went to Gary Roy's house and shot and killed him. Dittmer stole some compact disks and jewelry from the home, and stashed the murder weapon and his clothes worn at the time of the murder in a marsh area. He returned to the Sportsman's Bar and informed John Benjamin that "its done." Trial Tr. vol. II at 144. Dittmer described the details of Roy's murder before returning to Lansing in Benjamin's car.
That night and again the following Saturday morning, the petitioner left messages on Roy's telephone answering machine. Benjamin said that on Sunday morning, he and the petitioner drove to a marsh area to retrieve the items hidden by Dittmer. The petitioner and her sons returned home that Sunday afternoon and discovered Roy's body, at which time the petitioner called the police.
The prosecution called several other witnesses, ninety in all. Among them was Billy Joe Benjamin, who testified in exchange for a guilty plea to second-degree murder with a sentence cap of twelve to twenty years in prison. He said that on September 10, 1999, John Benjamin told him that the petitioner wanted Roy dead so that she could collect insurance money. Billy Joe later heard the petitioner at a party state that she wished that Roy was dead. He further testified to the events surrounding Roy's death from his point of view, mainly confirming his brother's testimony.
Dorothy Ford testified that she lived with the petitioner between May and the beginning of September 1999. Ford overheard the petitioner state that if Roy were dead, it would "solve most of her problems." Trial Tr. vol. III at 135.
The father of petitioner's two sons, Larry Tatro, testified that he continued to have a sexual relationship with petitioner after she married Roy. Tatro said that the petitioner asked her several times over the years to murder Roy. He further testified that he and the petitioner discussed killing Roy while Roy was on the road in a manner that would make the murder appear to have been a botched robbery. Tatro told his cousin John Monroe that the petitioner asked him to kill Roy. However, on cross-examination, Tatro admitted that the petitioner merely had mentioned killing Roy to him, but had not asked him to do it.
John Monroe testified over defense objection that he had spoken with Tatro in 1998 or 1999, some three to four months before Roy's murder. Tatro told Monroe that petitioner had attempted to convince him to kill "her boyfriend or husband or whoever the gentleman was." Trial Tr. vol. IV at 28. The petitioner also told Monroe at a funeral in 1998 or 1999 that she wished that her husband or boyfriend was dead or that somebody would kill him.
The petitioner's son, Ryan Cross, testified that the petitioner received a telephone call from John Benjamin just prior to Roy's murder and afterward she informed Ryan that Benjamin had hired someone to murder Roy. During the weekend of Roy's murder, the family stayed at a motel. The petitioner gave Ryan and his brother $80 to $100 each to spend on themselves, far exceeding the $10 to $30 the boys normally would receive for their birthdays. During that weekend, the petitioner and John Benjamin gave the two boys beer, marijuana, and cocaine. The petitioner told Ryan and Timothy that she had life insurance on Roy in case he died. After Roy's body was discovered, the petitioner asked her sons to "lie for her." Trial Tr. vol. III at 50.
The defense called eight witnesses, but the petitioner did not testify on her own behalf. The jury returned guilty verdicts on all the charged offenses. On February 12, 2001, the petitioner was sentenced to life in prison without parole on the murder and conspiracy convictions and fifteen to fifty years on the solicitation count.
The petitioner's conviction was affirmed on appeal, although the court modified the sentence on the conspiracy count to delete the prohibition against parole. People v. Cross, 2003 WL 178802 (Mich.App. Jan. 24, 2003). The Michigan Supreme Court denied leave to appeal. See People v. Cross, 469 Mich. 863, 666 N.W.2d 669 (2003). The petitioner's habeas petition was timely filed, and she now seeks habeas relief on the several grounds, which she describes as follows:
I. Defendant was denied her constitutional right to a fair and impartial jury where the juror who would have been dismissed for cause was included in her jury panel. Although that juror was dismissed the trial court failed to question the remaining jurors if they were exposed to any prejudicial extraneous matters that might have influenced their ability to sit as fair and impartial jurors.
II. Petitioner was denied her right to a fair trial and due process of law in that the prosecution failed to provide sufficient evidence to sustain a jury verdict of guilty of conspiracy to commit murder, solicitation to commit murder, and first-degree premeditated murder, on an aiding and abetting theory beyond a reasonable doubt.
III. The trial court erred in permitting the introduction of inadmissible hearsay evidence to rebut a claim of recent fabrication that prejudiced defendant's right to a fair trial and denied her due process of law.
IV. Defendant was denied her right to a fair trial under the federal constitution, where the prosecutor engaged in misconduct:
A. By introducing volumes of evidence of her economic motive to commit the crimes when a judgment of divorce precluded defendant from inheriting any of the decedent's property, and the legal efficacy of the beneficiary provisions of the insurance policy would serve only to pay off the mortgage for the Roy estate and not benefit defendant, which was tantamount to an intentional misrepresentation of the facts and of the law;
B. The prosecutor improperly introduced the hearsay statements made by Gordon Dittmer after his arrest to cell mate Freddie Grady, that "Barb" was to pay Dittmer for the murder out of insurance proceeds or a lawsuit settlement, contrary to her constitutional right of confrontation;
C. The prosecutor engaged in improper and highly prejudicial argument to the jury where he vouched for the police investigation and the truthfulness of his witnesses, denigrated defendant and her defense, shifted the burden of proof to defendant, and expressed an official belief in defendant's guilt.
V. Trial counsel was constitutionally ineffective for failing to insure that the trial court gave the proper jury instructions which resulted in the trial court failing to give the jury final cautionary instructions regarding other bad acts of defendant and mere presence; failed to instruct on defendant's theory of the case and failed to give the proper cautionary instructions thus denying petitioner of a fair trial and due process of law.
VI. Defendant was denied a fair trial and due process of law because of the cumulative effect of the prejudicial errors at her trial.
All of these claims were presented to the Michigan appellate courts. The warden opposes the petition and alleges that the petitioner failed to exhaust her administrative remedies, the claims are procedurally defaulted, and they lack merit. There is no merit to the failure-to-exhaust defense, and the warden makes no attempt to develop it. Likewise, the petition does not merit habeas relief.
II.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
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). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins v. Smith, 539 U.S. at 521 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)) (internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) ("All factual findings by the state court are accepted by this Court unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams, 529 U.S. at 405-06.
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[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. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, 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 409, 410-11. See also Dorchy v. Jones, 398 F.3d 783, 787-88 (6th Cir. 2005); McAdoo v. Elo, 365 F.3d 487, 493 (6th Cir. 2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc).
A.
The respondent contends that the petitioner's first, fourth, and fifth claims are procedurally defaulted because petitioner failed to preserve these issues in the state trial court and the Michigan Court of Appeals relied on this failure in denying petitioner's claims on her appeal of right. Habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72 (1977); Couch v. Jabe, 951 F.2d 94 (6th Cir. 1991). The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 752, if she fails to present an issue to a state appellate court at her only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if she fails to comply with a state procedural rule that required her to have done something at trial to preserve her claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; see Murray v. Carrier, 477 U.S. 478, 496 (1986); Dretke v. Haley, 541 U.S. 386, ___, 124 S.Ct. 1847, 1852 (2004).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
If the last state court from which the petitioner sought review affirmed the conviction both on the merits and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
With these rules in mind, the Court will address each of the three claims in turn in light of the state court of appeals' opinion, which was the only reasoned opinion on these issues issued by a state court.
1.
In her first claim, the petitioner criticizes the trial court for failing to question jurors for possible bias after one of their number was removed for cause by stipulation of the parties. The record discloses that the parties received information that the spouse of one of the jurors had been in contact with a family member of the victim and was furnished with newspaper articles about the case, which she said she would share with her juror-husband. The state trial judge convened a session in chambers with the petitioner present and agreed to remove the juror, acceding to the suggestion of defense counsel. The session concluded with this colloquy:
THE COURT: Okay. Well, we have selected 14 jurors in this particular situation, and I can have Mr. Kortes [the juror] brought in, and we can question him about these matters, if you wish to do that; or I can deal with it some other way, if you wish to do it.
Do you have any suggestions on how you wish to proceed?
MR. MIENK [defense counsel]: I would move to stipulate that he just be removed from the jury panel.
MR. EVANS [prosecution]: And I have no objection to the defendant's motion, and I would so stipulate.
THE COURT: Okay. Ms. Cross, have you heard what has been set forth here on the record?
MS. CROSS: Yes, I have.
THE COURT: And did you understand it?
MS CROSS: Yes, I did.
THE COURT: And you understand your attorney is moving to have this juror, Mr. Norbert Kortes, removed from the jury panel?
MS. CROSS: Yes.
THE COURT: And are you in agreement with that?
MS. CROSS: Highly.
THE COURT: Your answer is?
MS CROSS: Yes.
THE COURT: Okay. Okay. And is there any necessity, then, as far as Counsel is concerned, to have Mr. Kortes brought into chambers and discuss these matters with him?
MR. MIENK: I don't feel there is any necessity for that, Your Honor.
MR. EVANS: No. Your Honor.
THE COURT: All right. What I intend to do then is to — I will have him removed from the panel. I suggest as a method of doing that is to have him brought back here into chambers, then just advising him that he has been removed.
I don't see any necessity to give him any reasons or anything else of that particular nature, as opposed to doing it in open court, although I'll do it either way.
MR. MIENK: I would agree to do it here, Your Honor.
MR. EVANS: And I have no objection to that procedure either.
THE COURT: All right. Would you bring Mr. Kortes, please, back here in chambers. Have him brought back here.
(Mr. Kortes enters chambers.)
THE COURT: Yes, could you come in here, please.
MR. KORTES: Now you have really got me worried, Judge.
THE COURT: Okay. We've had a proceeding here in chambers about your qualifications to be a juror in this particular case. And from what has been presented to the Court, I'm going to have you removed as a juror at this time, and so that will be done.
What I'll ask you to do is just go back into the jury room, get your coat, then just leave and don't say anything to the other jurors about it one way or another.
MR. KORTES: Okay. Can I ask what the question was?
THE COURT: I'm not going to handle that on the record at this time.
MR. KORTES: Oh, I see.
THE COURT: You can do so afterwards.
MR. KORTES: You mean I can talk to you about it?
THE COURT: Well, after the trial is over with. I'm not going to talk to you during this time, but if you want to talk to the Counsel about it or whatever, that will be up to them, okay.
MR. KORTES: Okay. Sure.
THE COURT: Thank you.
MR. KORTES: Did you say go back and just leave?
THE COURT: Just get your coat and just leave.
MR. KORTES: All right. Fine. Thank you.
THE COURT: All right. We'll go back in the courtroom.
Trial Tr. vol. II at 106-09.
The petitioner contended on appeal that the trial judge should have questioned the remaining jurors to search for contamination. The court of appeals disposed of this issue as follows:
Defendant first argues that the trial court erred by failing to question the remaining jurors after one juror was removed by stipulation of the parties. We conclude that defendant waived this issue by stipulating to remove the pertinent juror from the jury panel. Defendant clearly expressed satisfaction with the trial court's handling of the matter and thereby waived any issue relating to this aspect of the trial. See People v. Carter, 462 Mich. 206, 219; 612 N.W.2d 144 (2000) (where defense counsel "clearly expressed satisfaction" with a trial court decision, a claim of error regarding the relevant matters was waived). Indeed, the trial court expressed a willingness to "deal with it some other way, if you wish to do it," but defense counsel moved to stipulate to "just" removing the juror. "When a court proceeds in a manner acceptable to all parties, it is not resolving a disputed point and thus does not ordinarily render a ruling susceptible to reversal." People v. Riley, 465 Mich. 442, 449; 636 N.W.2d 514 (2001). Thus, we conclude that defendant waived this issue and thereby extinguished any possible error with regard to the trial court's not questioning the remaining jurors. Id.People v. Cross, 2003 WL 178802, at *1 (Mich.App. 2003).
The state court of appeals thus disposed of this issue not on the basis of procedural default but on the principle of waiver, a more potent procedural ground. The state court's own citations establish that the rule was firmly established and regularly followed with respect to these grounds before the petitioner's 2001 trial. See, e.g., People v. Riley, 465 Mich. 442, 449, 636 N.W.2d 514 (2001); People v. Carter, 462 Mich. 206, 219; 612 N.W.2d 144 (2000). In this case, satisfaction to the proposed solution was expressed not only by defense counsel but by petitioner herself. Therefore, the state court's reliance on the petitioner's failure to object and consent to the trial court's manner of addressing the matter is an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994 (6th Cir. 1998).
As noted above, a state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). The petitioner has made no effort to demonstrate cause that might excuse her state court waiver with respect to her first issue; when cause has not been shown, the Court need not consider whether actual prejudice has been demonstrated. See, e.g., Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983). As explained below, there is likewise no miscarriage of justice. The first claim, therefore, does not merit habeas relief.
2.
In her fourth claim, the petitioner alleges various instances of prosecutorial misconduct. With respect to these issues, the state court of appeals held:
Defendant next advances multiple unpreserved claims of prosecutorial misconduct. We may grant relief based on such unpreserved claims only for plain error that seriously affected the fairness, integrity, or public reputation of judicial proceedings. People v. Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). We find no such error here.Cross, 2003 WL 178802 at *3. The court then proceeded to assess each of the claims and concluded that none of them amounted to plain error warranting further review or relief.
The contemporaneous-objection rule was firmly established and regularly followed with respect to claims of prosecutorial misconduct at the time of the petitioner's trial. See, e.g., People v. Buckey, 424 Mich. 1, 17-18, 378 N.W.2d 432, 440 (1985); People v. Sharbnow, 174 Mich. App. 94, 100, 435 N.W.2d 772, 775 (1989). The state court's reliance on the petitioner's failure to object to the prosecutor's conduct is an adequate and independent state ground for foreclosing review. See Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding). The fact that the state court of appeals engaged in plain error review of the prosecutorial misconduct claims does not constitute a waiver of the state procedural default. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Rather, the review on those terms constitutes enforcement of the state procedural rule. See Hinkle v. Randle, 271 F. 3d 239, 244 (6th Cir. 2001). There is no basis for habeas relief on the petitioner's fourth claim.
3.
In her fifth claim, the petitioner contends that her trial counsel was ineffective for failing to request that the trial court give several instructions to the jury. Whether asserted as cause for failing to object or request jury instructions at the trial or as an independent ground for relief, the ineffective-assistance-of-counsel claim lacks merit.
The petitioner claims that the trial court should have instructed the jury that her "mere presence" when some of the events leading to the victim's death occurred or were being discussed was insufficient by itself to prove her guilt; some of the evidence consisting of her promiscuous conduct, forging insurance papers, consorting with convicted felons, and illegally providing drugs and alcohol to her children could only be considered for a limited purpose; and the defense theory was that the Benjamin brothers hatched and executed the murder conspiracy on their own and she was not a part of it. She acknowledges that none of these instructions were requested of the trial court, and she does not dispute that the failure to request a jury instruction was a firmly-established and consistently-followed state procedural rule. See Williams v. Withrow, 328 F. Supp. 2d 735, 750-51 (E.D. Mich. 2004); Burton v. Bock, 320 F. Supp. 2d 582, 589 (E.D. Mich. 2004). The state court relied on the procedural rule in denying relief on the petitioner's claims of instructional error. Cross, 2003 WL 178802 at *5.
This Court previously has held that "[i]neffective assistance of appellate counsel can constitute `cause' for a procedural default." Tucker v. Renico, 317 F. Supp. 2d 766, 772 (E.D. Mich. 2004) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986). "If [the petitioner] can show that he received ineffective assistance of . . . counsel that rose to the level of a violation of his Sixth Amendment rights, it would excuse his procedural default." Martin v. Mitchell, 280 F.3d 594, 605 (6th Cir. 2002). "Not just any deficiency in counsel's performance will [excuse a procedural default], however; the assistance must have been so ineffective as to violate the Federal Constitution." Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
In Strickland v. Washington, 466 U.S. at 668 (1984), the Supreme Court established a two-pronged test for determination whether a criminal defendant has received ineffective assistance of counsel. First, the convicted person must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, the convict must show that counsel's deficient performance prejudiced him. Prejudice is established by a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Ibid. The Supreme Court emphasized that, when assessing counsel's performance, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent to making the evaluation, a court 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.Id. at 689 (internal citations and quotations omitted).
The Supreme Court explained that to establish deficient performance, a habeas petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690. To satisfy the prejudice prong, a petitioner must show 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. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged "errors undermined the reliability of and confidence in the result." Calbert v. Yukins, 238 F.3d 420, (6th Cir. 2000) ( citing McQueen v. Scroggy, 99 F. 3d 1302, 1311 (6th Cir. 1996)).
The state appellate court found that counsel was not ineffective for failing to request an instruction on "mere presence" because there was no evidence presented at trial that petitioner was merely present while other persons committed the charged offenses. Cross, 2003 WL 178802 at *5. The decision not to request a limiting instruction on so-called other acts evidence (which was admissible to prove motive) and an instructions on the defense theory was found to be sound trial strategy, and thus the state court determined that counsel's performance was not deficient. These decisions do not amount to an unreasonable application of Strickland. The "mere presence" instruction likely would have been rejected in light of the abundant trial testimony referring to the petitioner's active involvement in the murder of Roy. Although there was some danger that the "other acts" evidence might have been considered by the jury for the improper purpose of establishing the petitioner's bad character, in some cases "counsel may reasonably conclude that it is strategically preferable to omit . . . a request [for a limiting instruction] since the instruction might have the undesired effect of highlighting the other crimes evidence." Buehl v. Vaughn, 166 F. 3d 163, 170 (3d Cir. 1999); see also United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996) (observing that a "decision not to request a limiting instruction is solidly within the accepted range of strategic tactics employed by trial lawyers in the mitigation of damning evidence. If the lawyer cannot stop the evidence from being admitted, it is perfectly rational to decide not to draw further attention to it by requesting a motion for limiting instruction"). Whether to request the trial court to instruct on the defense theory is always a matter of strategy for defense counsel, who retains the ability to decide whether such advocacy is best left to counsel's argument.
The Court agrees, therefore, that trial counsel's performance was not deficient under the first prong of Strickland's analysis. The petitioner, therefore, has not established that her trial counsel was constitutionally ineffective. Consequently, she has neither shown cause for the procedural default with respect to the alleged instructional errors, nor has she established a right to habeas relief on the ground of a Sixth Amendment violation.
4.
With respect to each of these three claims, the petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing 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). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "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. The petitioner has made no such showing in this case. The petitioner's sufficiency of evidence claim is insufficient to invoke the actual innocence exception to the procedural default doctrine. See Malcum v. Burt, 276 F. Supp. 2d 664, 677 (E.D. Mich. 2003).
B.
The petitioner next claims that there was insufficient evidence to convict her of first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder. There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Normally, pursuant to 28 U.S.C. § 2254(d)(1), this Court must determine whether the state court's application of the Jackson standard was contrary to or an unreasonable application of Supreme Court precedent.
The state court of appeals applied this standard in affirming the petitioner's convictions. It held:
Defendant next argues that there was insufficient evidence to support her convictions of conspiracy to commit first-degree murder, solicitation of first-degree murder, and first-degree premeditated murder. We disagree. In reviewing whether there was sufficient evidence to support a conviction, we view the evidence in a light most favorable to the prosecution and decide whether a rational factfinder could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hunter, 466 Mich. 1, 6; 643 N.W.2d 218 (2002).
With regard to defendant's conviction of conspiracy to commit first-degree murder, conspiracy consists, in pertinent part, of a mutual agreement between two or more people to commit a criminal act. People v. Buck, 197 Mich. App. 404, 411-412; 496 N.W.2d 321 (1992), reversed in part on other grounds sub nom People v. Holcomb, 444 Mich. 853 (1993). To prove conspiracy to commit first-degree murder, it must be shown that "each conspirator had the requisite intent to commit the murder." Id. at 412. John Benjamin testified that he and defendant agreed that he should approach an acquaintance and offer him money and a vehicle in return for killing the victim. Further, John Benjamin testified that he asked Gordon Dittmer to commit the murder and that defendant gave him a check to pay Dittmer, which constituted evidence that both John Benjamin and defendant actually had an intent to murder the victim. There was sufficient evidence to support defendant's conspiracy conviction.
Turning to defendant's conviction of solicitation of murder, the law provides that a person who aids or abets the commission of a crime may be convicted as if that person directly committed the crime. People v. Izarraras-Placante, 246 Mich. App. 490, 495; 633 N.W.2d 18 (2001). A finding that a defendant aided and abetted a crime requires evidence that (1) the crime was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or knew that the principal intended its commission when the defendant gave aid and encouragement. Id. at 495-496. Solicitation of murder consists of (1) the solicitor purposely seeking to have someone killed and (2) trying to engage someone to do the killing. People v. Sexton, 250 Mich. App. 211, 227; 646 N.W.2d 875 (2002). John Benjamin's testimony that he promised Dittmer money and a vehicle in payment for killing the victim was sufficient to establish that John Benjamin committed the crime of solicitation of murder. His testimony that defendant agreed with him to ask another man to kill the victim in return for payment was sufficient to establish that she gave encouragement that assisted the solicitation and that she intended the commission of the crime. Thus, there was sufficient evidence to support defendant's solicitation of murder conviction.
With regard to defendant's murder conviction, first-degree premeditated murder consists of an intentional killing of a victim that was premeditated and deliberate. People v. Abraham, 234 Mich. App. 640, 656; 599 N.W.2d 736 (1999). The evidence that the victim died from a gunshot wound to the head, that Dittmer told two people that he shot the victim, and that he told one of them that he was supposed to be paid for the killing was sufficient evidence that Dittmer committed first-degree premeditated murder. This evidence together with that discussed above regarding defendant giving funds to John Benjamin to pay Dittmer for the killing, constitutes sufficient evidence to support a conclusion that defendant aided and abetted first-degree premeditated murder by providing encouragement that assisted the commission of the crime and intended its commission. Thus, there was sufficient evidence to support defendant's first-degree murder conviction.Cross, 2003 WL 178802 at *1-*2.
The Court finds that the state court's analysis of these offenses in light of the record evidence constitutes a proper application of the Jackson standard of review. There is no basis for concluding that the petitioner is entitled to habeas relief on the ground that the state failed to prove her guilt.
C.
The petitioner next argues that the trial court erred in permitting the introduction of testimony from John Monroe that Larry Tatro told him that petitioner had tried to get him to kill a man, claiming that the testimony was improperly admitted pursuant to Michigan Rule of Evidence 801(d)(1)(B) as a prior consistent statement to rebut a claim of recent fabrication on Tatro's part.
It is well settled that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dep't. of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). "Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994). This is not a case in which the Confrontation Clause is implicated. According to Crawford v. Washington, 541 U.S. 36 (2004), out-of-court statements that are testimonial in nature may not be offered in evidence to establish the guilt of the accused unless the defendant had an opportunity to cross-examine the declarant. When the witness testifies and is subject to questioning on the prior statement, the right to confront the witness guaranteed by the Sixth Amendment is not abridged. See United States v. Owens, 484 U.S. 554, 560 (1988) (holding that the introduction of a prior statement of a witness who at trial professed a lack of memory about the critical events does not violate the Confrontation Clause when "the hearsay declarant is present at trial and subject to unrestricted cross-examination"). The admission of Larry Tatro's prior consistent statement to John Moore when the declarant was available for cross-examination at trial is not a question that rises to the level of a constitutional violation for purposes of habeas corpus relief. The petitioner's claim of error concerning the admission of prior consistent statements that Tatro made to John Monroe suggests an error of state law that is not cognizable in federal habeas review.
D.
In her final claim, petitioner alleges that she was deprived of a fair trial because of cumulative error. The Sixth Circuit has expressed doubt that about the validity of the argument that cumulative errors may warrant habeas relief in the post-AEDPA era. See Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (sating that noted that "[t]he Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief"). But see Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983) (a pre-AEDPA case holding that "[e]rrors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair"). Even if such a claim were viable, however, the Court does not find that errors were committed when considered separately or together that abridged the petitioner's constitutional rights. The petitioner is not entitled to habeas relief on her cumulative errors claim.
III.
The decision of the Michigan appellate court was not contrary to or an unreasonable application of federal law as determined by the Supreme Court.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt # 1] is DENIED.