Opinion
Case No. 00-CV-71890-DT
December 26, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is pending before the Court on petitioner Tod Friedman's habeas corpus petition under 28 U.S.C. § 2254. In 1994, Petitioner was charged in Macomb County, Michigan with six counts of solicitation to commit murder, MICH. COMP. LAWS § 750.157b. The charges arose from allegations that Petitioner, while imprisoned for pandering (enticing a female person to become a prostitute), solicited a fellow inmate, Tony Berry, to murder six people involved in the pandering case. The six people included four law enforcement officers, the complaining witness in the pandering case, and another private citizen.
The main prosecution witness at trial was Tony Berry, who testified that Petitioner wanted the people killed because he believed they had "set him up" in the pandering case. Petitioner did not testify or present any witnesses. The defense theory was that the solicitation never occurred and that Tony Berry's motive for testifying was to improve his status in the eyes of the parole board.
On October 21, 1994, a Macomb County circuit court jury found Petitioner guilty of soliciting the murder of Vicki Hayes Hall, the complaining witness in the pandering case. The jury acquitted Petitioner of the other five counts of solicitation to commit murder. Petitioner subsequently pleaded guilty to being a habitual offender, and the trial court sentenced him to a term of thirty-nine to sixty years in prison.
Petitioner raised his second, third, and fourth habeas claims in an appeal of right. The Michigan Court of Appeals adjudicated those claims on the merits and affirmed Petitioner's conviction. See People v. Friedman, No. 185688 (Mich.Ct.App. Oct. 8, 1996). Petitioner raised the same issues in the Michigan Supreme Court, which denied leave to appeal on July 25, 1997. See People v. Friedman, 455 Mich. 872 (1997) (table).
On October 31, 1997, Petitioner filed a motion for relief from judgment, in which he raised his first habeas claim. The trial court denied Petitioner's motion without explanation. Petitioner then moved for reconsideration. The trial court denied the motion for reconsideration in a reasoned opinion, which addressed Petitioner's first habeas claim. The Michigan Court of Appeals denied leave to appeal the trial court's decision "for lack of merit in the grounds presented." People v. Friedman, No. 216058 (Mich.Ct.App. April 1, 1999). On December 7, 1999, the Michigan Supreme Court denied leave to appeal for failure "to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Friedman, 461 Mich. 931 (1999) (table).
On April 25, 2000, Petitioner filed his habeas corpus petition. He alleges through counsel that:
I. the trial court erred in failing to hold an evidentiary hearing on his motion for relief from judgment where new evidence revealed that the prosecution failed to disclose that it had intimidated its chief witness;
II. there was insufficient evidence of the element that requires an actual offer or promise of something of value;
III. there was insufficient evidence of the element that requires the defendant to possess a specific intent to have a murder committed; and
IV. the penalty provision of the solicitation to murder statute is unconstitutional because of the lack of sentencing guidelines for the offense.
Respondent contends that Petitioner's first claim is procedurally barred from review and that Petitioner's other claims lack merit.
The Court may grant the writ of habeas corpus only if the state court's adjudication of Petitioner's 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 [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams 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.
II. Discussion A. Lack of an Evidentiary Hearing in State Court
Petitioner's first claim alleges that the trial court erred in failing to hold an evidentiary hearing on his motion for relief from judgment. Respondent contends that Petitioner's claim is procedurally barred by his failure to raise it in the appeal of right.
1. Procedural Default
The doctrine of procedural default provides that,
[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 542, 549-50 (6th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1643 (2001); 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).
Michigan Court Rule 6.508(D)(3) prohibits state court from granting relief from judgment if the movant alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal. An exception exists for defendants who can show cause for the failure to raise the claim on appeal and resulting prejudice or a significant possibility of innocence.
Respondent contends that Petitioner could have raised his first claim on direct appeal and that the Michigan Supreme Court relied on this procedural error when denying leave to appeal during the second round of appeals. Petitioner replies that he could not have raised his claim in the appeal of right because there was no record to support the claim then.
Petitioner intimates that he acquired new evidence in his case while his direct appeal was pending in the Michigan Court of Appeals. Petitioner has not alleged the actual date on which he acquired the new information. See Brief in Support of Petition for Writ of Habeas Corpus, at 11.
Even assuming that Petitioner could have raised his first claim on direct review, none of the state courts enforced Rule 6.508(D)(3) on collateral review of the claim. Although the Michigan Supreme Court stated in its order that Petitioner had failed to establish entitlement to relief under Rule 6.508(D), the court did not cite subsection three of Rule 6.508(D). Nor did the court say that Petitioner could have raised his claim on direct review.
The court's order was a mere discretionary denial of leave to appeal, which is not even a judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991); see also Coach v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The Court believes that "a presumption which gives [unexplained orders] no effect — which simply "looks through' them to the last reasoned decision — most nearly reflects the role they are ordinarily intended to play." Ylst, 501 U.S. at 804 (emphasis in original); see also Hinkle v. Randle, ___ F.3d ___, ___, Nos. 00-3506, 00-3889, 2001 WL 1194895, at *3 (6th Cir. Oct. 11, 2001) (citing Ylst, 501 U.S. at 803, and stating that, "[i]n determining whether state courts have relied on a procedural rule to bar review of a claim, we look to the last reasoned opinion of the state courts and presume that later courts enforced the bar instead of rejecting the defaulted claim on its merits").
The last state court to address Petitioner's first claim in a reasoned decision was the trial court when it denied Petitioner's motion for reconsideration of the order denying relief from judgment. The trial court found no merit to Petitioner's claim. It did not refer to Rule 6.508(D)(3) or state that relief was denied because Petitioner could have raised his claim in the appeal of right.
The Court concludes that Petitioner's first claim is not procedurally defaulted because the last state court to review it in a reasoned opinion did not rely on Rule 6.508(D)(3) to foreclose review. Accordingly, the Court will proceed to address Petitioner's claim on the merits.
2. The Failure to Grant an Evidentiary Hearing
Petitioner alleges that, after his trial, he discovered new evidence, suggesting that the prosecution had intimidated Tony Berry in order to force him to testify. Petitioner alleges that the prosecution failed to disclose this evidence to his attorney. Petitioner's first claim is that the trial court erred in failing to hold an evidentiary hearing after Petitioner filed a motion for relief from judgment on the basis of the newly discovered evidence.
Although state courts may grant an evidentiary hearing on a motion for relief from judgment, the decision whether to grant an evidentiary hearing is discretionary. See Mich. Ct. R. 6.508(B) and (C). Furthermore, a perceived error of state law is not a basis for habeas corpus relief. Pulley v. Harris, 465 U.S. 37, 41 (1984); Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). Federal courts may grant the writ of habeas corpus only if the 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). Accordingly, Petitioner is not entitled to habeas corpus relief on the basis of the procedure used by the state court in reviewing his post-conviction motion and the state court's decision not to hold an evidentiary hearing. Dias v. Maloney, 156 F. Supp.2d 104, 137 (D. Mass. 2001); Conners v. Matesanz, 49 F. Supp.2d 23, 26 (D. Mass. 1999).
Nor does Petitioner possess an absolute right to an evidentiary hearing in this Court. Not every set of nonfrivolous allegations entitles a habeas corpus petitioner to an evidentiary hearing. Blackledge v. Allison, 431 U.S. 63, 80 (1977). The decision whether to order an evidentiary hearing to settle disputed issues of material fact is discretionary with the district court. See Rule 8(a) of the Rules Governing Section 2254 cases in the United States District Courts (stating that the judge shall determine, on receipt of the answer and state court record, whether an evidentiary hearing is required). "Generally, a habeas petitioner is entitled to an evidentiary hearing in federal court if the petition "alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing."' Stanford v. Parker, ___ F.3d ___, ___, No. 00-5094, 2001 WL 1097283, at *12 (6th Cir. Sept. 20, 2001) (quoting Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994) (citation and internal quotation omitted)).
Petitioner sought an evidentiary hearing in state court when he filed his motion for relief from judgment. Therefore, he is not precluded by lack of diligence or some other fault on his or his attorney's part from having a federal evidentiary hearing. 28 U.S.C. § 2254 (e)(2); Williams v. Taylor, 529 U.S. 420, 437 (2000); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (concluding that the petitioner was not precluded from having an evidentiary hearing in federal court because he exercised the necessary diligence in attempting to establish the factual record in state court).
No evidentiary hearing is required here because Respondent does not contest the facts. Furthermore, the Court has concluded, for reasons set forth below, that, even if the prosecution suppressed the evidence, the suppression did not undermine confidence in the outcome of the trial or sentencing.
3. The Federal Claim
To the extent that Petitioner raises a federal claim, his claim is that the prosecution suppressed evidence favorable to the defense. The evidence consists of allegations that a detective threatened Tony Berry to force Berry to testify for the State. The alleged intimidation came to light when defense counsel acquired an updated copy of Berry's parole file, following Petitioner's trial. The parole file contained a copy of a letter that Berry wrote to a newspaper editor on November 26, 1994. The letter claims that a detective threatened Berry, in the presence of the prosecuting attorney, when Berry informed the detective that he was no longer willing to testify against Petitioner. Petitioner contends that he could have used this information at trial and at the sentencing to show that Berry was not a credible witness and that his testimony should not be believed.
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "[F]avorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 685 (1985)).
The Court assumes, for purposes of this opinion, that the prosecution concealed evidence that Tony Berry was an unwilling witness and that a police officer intimidated Berry in order to force him to testify. The Court, nevertheless, concludes for the following reasons that the result of the proceedings would not have been different had the evidence been disclosed.
Tony Berry stated in his letter to the newspaper that he had attempted to acquire a new identity and other benefits as a result of his cooperation with the police in this case. The letter goes on to say that,
[a] few days after I arrived [at a Macomb County correctional facility], Detective Mark Hazelroth came to see me and with him was a prosecutor who was handling the case. At that time I informed Hazelroth that I was no longer willing to testify which made him very angry. He said if I don't testify as far as he is concerned I could be put back into general population at Macomb and we can wait to see what happens. That is where the defendant is at. I accepted his statement as a threat, which it was. I agreed to testify out of fear, I had no other choice.
Pet. for Writ of Habeas Corpus, Exhibit E, D-4.
Tony Berry does not say in his letter that he fabricated the allegations about Petitioner wanting him to kill people or that his testimony was false. In fact, the letter states that "the defendant" hired him to kill six people because the people caused him to receive a two-year prison term. See id., page 1.
The Court recognizes that defense counsel could have used the information about the alleged threats to challenge Berry's credibility. However, defense counsel impeached Berry with his testimony at the preliminary examination and extensively cross-examined Berry concerning his truthfulness, manipulation of the system, and motive for testifying. The jury also was made aware that Berry had been convicted of beating and raping a 96-year-old woman and that he had led other prisoners to believe he was incarcerated for shooting someone. See Tr. Oct. 19, 1994, at 62; Tr. Oct. 20, 1994, at 10-61.
Even the prosecutor conceded during closing arguments that Berry's testimony might not have been completely credible. The prosecutor admitted that he personally did not know whether Petitioner was just a victim of Berry's manipulation to get out of prison earlier. The prosecutor also said that, if the case depended only on Tony Berry's testimony, the decision was simple: Petitioner was not guilty. See Tr. Oct. 21, 1994, at 6-9, 40.
This Court does not believe that evidence of Tony Berry's unwillingness to testify and the alleged threats against him would have affected the outcome of the trial. Nor would it likely have affected the sentence. The trial court stated on post-conviction review that Petitioner would not have been sentenced any differently had the conduct been known, because Petitioners sentence was based on his criminal history and the severity of his crime. See Petition for Writ of Habeas Corpus, Exhibit C, at 5.
To conclude, there is not a reasonable probability that, had the disputed evidence been disclosed to the defense, the result of the proceedings would have been different. Therefore, the state court's denial of relief did not result in a decision that was contrary to, or an unreasonable application of, Brady, and Petitioner is not entitled to relief on the basis of his first claim.
B. Sufficiency of the Evidence
Petitioner's second and third claims challenge the sufficiency of the evidence produced at trial. Petitioner alleges that there was no evidence of two elements of the crime for which he was convicted: (1) an actual offer or promise of something of value; and (2) the specific intent to commit a murder.
"[T]he 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). After Winship, 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. But this 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.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original).
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. Pursuant to MICH. COMP. LAWS § 750. 157b(1),
"`solicit' means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation." Solicitation to commit murder is a specific intent crime that requires proof that the defendant intended that a murder would in fact be committed. People v. Vandelinder, 192 Mich. App. 447, 450, 481 N.W.2d 787 (1992). Solicitation to commit murder occurs when (1) the solicitor purposely seeks to have someone killed and (2) tries to engage someone to do the killing. Id. Solicitation is complete when the solicitation is made. Id. A contingency in the plan may affect whether the victim will be murdered, but does not change the solicitor's intent that the victim be murdered. Id. at 450-451, 481 N.W.2d 787. Actual incitement is not necessary for conviction. People v. Salazar, 140 Mich. App. 137, 143, 362 N.W.2d 913 (1985) (a defendant who attempted to incite an undercover police officer to commit murder could not escape conviction merely because the officer would not actually kill someone).People v. Crawford, 232 Mich. App. 608, 616 (1998).
The Michigan Court of Appeals summarized the evidence as follows:
Tony Berry, who was an inmate with defendant while defendant was incarcerated for another conviction, testified that defendant offered to give him money and an airline ticket to Alaska in exchange for killing Vicki Hall, a prosecution witness in the case in which defendant had been convicted. According to Berry, defendant wanted Hall abducted, tortured, and sodomized before she was killed. Eventually, Berry received a list from defendant which he alleged contained the names of the intended victims, including Hall and five other persons. At trial, defense counsel stipulated that the list was written by defendant. During a recorded conversation, defendant indicated to Berry that Hall `better be dead before I get out.' Hall testified that defendant had previously threatened to cut her throat.Friedman, No. 185688, at 1. The Court of Appeals concluded that "[t]his evidence [wa]s sufficient to establish the essential elements of solicitation to commit murder beyond a reasonable doubt." Id. at 2.
The record supports the state court's summary of the facts and legal conclusion. Vicki Hall (formerly Vicki Hayes) testified that Petitioner had threatened her in 1992 by indicating that he would cut her throat. See Tr. Oct. 19, 1994, at 51-54. Tony Berry testified that Petitioner had said he wanted Berry to kill six individuals who had "set him up" and put him out of business. Berry was to receive money, including $5,000 for the murder of Vicki Hall, and an airplane ticket to Alaska for this activity. Petitioner said he wanted Vicki Hall abducted and tortured until she revealed who had set him up. Petitioner gave Berry a list and description of six individuals that he wanted killed. At one point in their conversations, Berry thought that Petitioner might have changed his mind because he became less talkative. However, when Berry asked Petitioner if he wanted Berry to proceed, Petitioner responded, "Yes, " and the men continued to talk. Id. at 63-67, 74-79; Tr. Oct. 20, 1994, at 6-8. Both the prosecutor and defense counsel acknowledged that, in a tape-recorded conversation with Berry, Petitioner said that he wanted Vicki Hall dead before he was released from prison. See Tr. Oct. 21, 1994, at 9, 21.
The Court concludes from a review of the record that the state court's determination of the facts was reasonable. 28 U.S.C. § 2254 (d)(2). The state court's conclusion that there was sufficient evidence presented to establish an offer of something of value and an intent to have Vicki Hall killed was a reasonable application of Jackson. 28 U.S.C. § 2254 (d)(1). Moreover, federal habeas courts must give deferential review to state court decisions on sufficiency-of-the-evidence claims. Gomez v. Acevedo, 106 F.3d 192, 193-94 (5th Cir.), vacated on other grounds, 522 U.S. 801 (1997). Accordingly, Petitioner is not entitled to the writ of habeas corpus on the basis of his second and third claims.
Although the court of appeals did not cite Jackson, it relied on the same standard.
C. The Sentence
Petitioner's fourth and final claim is that the penalty provision of the statute on solicitation to murder is unconstitutional because there were no sentencing guidelines for the offense when he was sentenced. Petitioner contends that the lack of sentencing guidelines violated his constitutional rights to equal protection and due process of law. Both the trial court and the Michigan Court of Appeals rejected this argument.
Petitioner has not cited, and the Court has not found, any Supreme Court decision holding that the lack of sentencing guidelines for his offense violated the constitutional rights to equal protection and due process. The Sixth Circuit has stated that "there is no constitutional right to sentencing guidelines," United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996) (quoting United States v. Salas, No. 93-5897, 1994 WL 24982, at *2, (6th Cir. Jan. 27, 1994) (unpublished disposition)), and the Michigan Supreme Court has stated that the Michigan guidelines do not convey any substantive rights. People v. Potts, 436 Mich. 295, 303 (1990). Therefore, the state courts' denial of relief did not result in decisions that were contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Petitioner is not entitled to habeas relief on the basis of his fourth claim.
III. Conclusion
For all the reasons given above, Petitioner's application for the 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).