Opinion
Case Number: 99-74245.
May 25, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Steve Halchishak, a state inmate currently incarcerated at the Parnall Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
II. Facts
Petitioner's conviction arises out of events that occurred on the morning of February 2, 1995. On that date, Mary Speer, who owns and operates a home finishing business, went over to Petitioner's house to collect the fee for repair work she had done at his home. When she arrived at his house, he asked her to repair a portion of the ceiling in his living room. Ms. Speer agreed.
Ms. Speer testified that she climbed a ladder to repair the ceiling. Petitioner steadied the ladder while she was on it. Ms. Speer testified that when she stepped off the ladder, Petitioner grabbed her and held her in a tight "bearhug." Ms. Speer testified that she tried to wriggle free from Petitioner's grasp, but was unable to do so. According to Ms. Speer, Petitioner then forced her to place her hand on his penis, while he shoved his hand down her pants and put his finger in his vagina. She was able to escape his grasp when he was startled by a Consumers Energy employee approaching the house. Ms. Speer testified that after she freed herself from Petitioner, she collected the money he owed her and left the house.
The day after the assault, Ms. Speer went to see her chiropractor, who testified that he treated Ms. Speer for rib pain and muscle spasms in her left shoulder. He also testified that Ms. Speer was visibly upset and that she told him that she had had some difficulties with Petitioner, but did not elaborate further.
A few days following the assault, Ms. Speer was treated by Dr. Warner, who testified that she observed two small bruises on Ms. Speer's leg. Ms. Speer's psychologist testified that Ms. Speer's psychological symptoms were consistent with those exhibited by victims of sexual assaults.
Petitioner testified in his own defense and denied assaulting Ms. Speer. Petitioner was found guilty of criminal sexual conduct, second degree.
III. Procedural History
On September 22, 1995, following a jury trial in Lenawee County Circuit Court, Petitioner was convicted of second-degree criminal sexual conduct. He was sentenced to two to fifteen years imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The prosecutor's misconduct denied defendant a fair trial in violation of the V and XIV amendments to the United States Constitution and Const. 1963 Art. 1, Section 17.
II. The trial court abused its discretion in denying defendant's motion for election between counts where the prosecution abused its authority by turning one incident of criminal sexual conduct into three separate crimes using alternative statutory definitions.
III. The trial court abused its discretion by denying discovery of medical reports and statements to treating physicians by the complainant.
IV. The trial court erroneously denied defendant the right to add witnesses and present evidence as to the alleged victim's reputation in the community for truthfulness.
V. A downward departure from the guidelines was warranted in light of defendant's record, age and health.
VI. The cumulative effect of the errors occurring at trial denied defendant a fair trial.
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Halchishak, No. 192201 (Mich.Ct.App. May 30, 1997).
Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court presenting the same claims presented in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Halchishak, No. 110039 (Mich. May 28, 1998).
On September 10, 2000, Petitioner filed the pending habeas corpus petition presenting the same claims presented on direct review in state court.
IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, 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 that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.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 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1) ; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
28 U.S.C. § 2254 (e)(1) provides, in pertinent part:
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.
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 v. Taylor, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application's 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 § 2234(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 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Alleged Prosecutorial Misconduct
Petitioner asserts that he is entitled to habeas corpus relief because the prosecutor allegedly engaged in misconduct. Specifically. Petitioner asserts that the prosecutor (1) argued facts not in evidence; (2) asked the jury to convict Petitioner on the basis of the prosecutor's personal knowledge; and (3) referred to the widely-publicized Bobbit case with the intent to arouse prejudice.
"Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances." Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). The Court must examine "`the fairness of the trial, not the culpability of the prosecutor.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997), ( quoting Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Sixth Circuit has identified the factors a court should consider in weighing the extent of prosecutorial misconduct:
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Id. at 964 ( quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)).
The last state court to issue a reasoned opinion on Petitioner's claims of prosecutorial misconduct, the Michigan Court of Appeals, held as follows:
[D]efendant claims that the prosecutor made three improper remarks during her rebuttal argument. The Michigan Supreme Court has held that "[a]ppellate review of improper prosecutorial remarks is generally precluded absent objection by counsel because the trial court is otherwise deprived of an opportunity to cure the error." People v. Stanaway, 446 Mich. 643, 687; 521 N.W.2d 557 (1994). Defendant objected to only one of the remarks, one concerning a reference to the Bobbit incident.
The test of misconduct by a prosecutor is whether the misconduct rose to the level of denying defendant a fair and impartial trial. People v. Bahoda, 448 Mich. 261, 267; 531 N.W.2d 659 (1995). . . . The propriety of a prosecutor's remarks depends on all the facts of the case. . . . A remark which might otherwise be improper may not require reversal when it is made in response to issues raised by defense counsel.
Defendant claims that the prosecutor erroneously stated that the chiropractor who treated the complainant testified that her injury was consistent with the alleged assault. A prosecutor may not argue or refer to facts not on the record. . . . The prosecutor is, however, entitled to comment on the evidence and to draw reasonable inferences from it. . . . In the instant case, the prosecutor did not actually argue that the chiropractor testified that complainant's injury was consistent with the alleged assault. Her argument suggests that the prosecutor was relying on her own inference that the shoulder spasm was consistent with complainant's allegations that defendant held her arm over her head. This was permissible. Furthermore, any confusion arising from the prosecutor's argument could have been corrected with a timely curative instruction. Accordingly, defendant is not entitled to relief on this basis.
Defendant also argues that the prosecutor improperly suggested that the jury could convict defendant on the basis of the prosecutor's special knowledge. This Court has recognized "the well-known rule that the prosecutor may not ask the jury to convict the defendant on the basis of the prosecutor's personal knowledge and the prestige of his office rather than on the evidence." People v. Fuqua, 146 Mich. App. 250, 254; 379 N.W.2d 442 (1985). We do not find that the prosecutor's statements violated this rule. Read in context, the prosecutor's remarks do not indicate that the prosecutor was suggesting that her office had personal knowledge of the incident outside of the evidence presented at trial. The prosecutor commented that complainant's description of defendant's penis as firm, but not erect, was corroborated by evidence that defendant was impotent, a fact which complainant could not have known. She argued that the prosecutor's office therefore proceeded not merely on the basis of complainant's allegations, but also on this corroborative evidence. This statement was therefore not improper.
The third instance of prosecutorial misconduct cited by defendant is the prosecutor's remarks concerning the Bobbit incident. A prosecutor may not intentionally inject inflammatory arguments with no apparent justification except to arouse prejudice . . . . These remarks must be viewed in this context. In his closing argument, defense counsel commented that complainant's behavior immediately following the alleged incident was not indicative of a rape. He commented that it made no sense for complainant to collect payment from defendant and write a receipt if defendant had just raped her. It appears that the prosecutor responded to this argument using the Bobbit incident as an example of how irrationally people might act in emotionally charged situations.
The prosecutor exercised poor judgment by her digression into the Bobbit case. Although the Bobbit reference was ostensibly responsive to defense counsel's argument that complainant's conduct was not sensible, it was just barely relevant, the prosecutor could have, and should have, made her rebuttal argument without digressing into the sordid and scandalous details of the Bobbit case. However, we are unable to see how defendant was deprived of a fair trial by this digression. Nothing the prosecutor said compared the parties of the instant case to the Bobbits. Because the Bobbit incident involved a wife's brutal and shocking assault on her husband, reference to the case was just as likely to arouse sympathy for defendant as for complainant.People v. Halchishak, slip op. at 1-3.
Petitioner has failed to establish that the Michigan Court of Appeals decision was contrary to or an unreasonable application of Supreme Court precedent. First, Petitioner claims that the prosecutor improperly characterized the chiropractor's testimony. As the state court held, a prosecutor may argue all reasonable inferences that may be drawn from the evidence admitted at trial as they relate to the prosecutor's case. See U.S. v. Francis, 170 F.3d 546, 552 (6th Cir. 1999). In Petitioner's case, it was not an unreasonable inference for the prosecutor to argue that the victim's shoulder spasm may have been related to Petitioner's forcibly holding the victim's arm over her head.
Petitioner also argues that the prosecutor asked the jury to convict based on the prosecutor's personal knowledge. A review of the record, including the prosecutor's closing statement, supports the Michigan Court of Appeals' holding that the prosecutor did not ask the jury to convict based on her personal knowledge. Instead, she argued reasonable inferences that could be drawn from the evidence presented at trial.
Finally, Petitioner argues that the prosecutor engaged in misconduct by referring to the Bobbit case in her closing argument. The Michigan Court of Appeals held that this reference was inappropriate, but that it did not deprive Petitioner of a fair trial. This Court holds that the Michigan Court of Appeals' holding was not an unreasonable application of Supreme Court precedent. Although the prosecutor's reference to the Bobbit case was inappropriate, it was brief and, considering the totality of the circumstances, did not render the trial fundamentally unfair.
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to his claim of prosecutorial misconduct.
C. Double Jeopardy Claim
Petitioner claims that the trial court erred in denying Petitioner's motion for election between counts. Specifically, Petition argues that it was error to allow the prosecutor to charge him with first-degree criminal sexual conduct, second-degree criminal sexual conduct, and assault with intent to commit criminal sexual conduct. The issue is whether Petitioner's rights under the double jeopardy clause were violated.
In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court articulated the general test, the "same elements" test, used to determine whether a double jeopardy violation has occurred. Under the same elements test, a court examines whether each offense contains an element not contained in the other. If "every violation of one statute entails a violation of the other," a defendant will be considered to be placed in double jeopardy. United States v. Benton, 852 F.2d 1456, 1465 (6th Cir. 1988) (internal quotation and citation omitted). "`A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'" Id. ( quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
In the instant case, the Michigan Court of Appeals determined that Petitioner had not been placed in double jeopardy:
Defendant relies on People v. Johnson, 406 Mich. 320; 279 N.W.2d 534 (1979), in support of his argument that the prosecutor erred in charging him with separate counts of first-degree CSC, second-degree CSC, and assault with intent to commit CSC. In Johnson, the Michigan Supreme Court held that a defendant may not be charged with multiple counts of first-degree CSC, . . . when there has been a single act of penetration, but more than one of the aggravating circumstances which elevates third-degree CSC, . . . to first degree CSC is present. Id. at 331.
In People v. Rogers, 142 Mich. App. 88; 368 N.W.2d 900 (1985), this Court held that Johnson, . . . is not applicable where there have been multiple acts of penetration. Id. at 92-93. In Rogers, the Court upheld the defendant's conviction of three counts of first-degree CSC because the complainant testified that the defendant penetrated her twice, and his co-actor did so at least once. Id. This testimony permitted the jury to convict defendant for two first-degree CSC counts, plus an additional count on an aiding and abetting theory. . . . The Court noted that the convictions were not for a single offense, but for separate acts of penetration. Id.
Under Rogers, if the complainant had testified to two acts of penetration, defendant could have been charged with two counts of CSC. Id. By analogy, if the evidence supports a finding that there was an act of sexual conduct which is distinct from the act of penetration, a defendant could be charged with separate counts of first-degree and second-degree CSC. In the instant case, the complainant testified that defendant forcibly placed her hand in contact with his penis, and then placed his hand in her pants, and digitally penetrated her vagina. Defendant's act of forcing the complainant to touch his penis is an act of sexual contact distinct from the act of digitally penetrating her vagina. Therefore, it was not improper to charge defendant with both counts.
We need not consider whether it was improper to charge defendant with both first-degree CSC and assault with intent to commit CSC involving penetration. The jury instructions advised the jury that they could not convict defendant of both charges, because the assault merged into the first-degree murder charge if penetration was completed. Accordingly, there was no opportunity for the jury to convict defendant of both counts.People v. Halchishak, slip op. at 3.
This Court determines that the Court of Appeals' decision was not contrary to or an unreasonable application of the "same elements" test established by the Supreme Court in Blockburger. Accordingly, the Court denies habeas corpus relief with respect to this claim.
D. Trial Court's Discovery Orders
Petitioner asserts that he is entitled to habeas corpus relief because the trial court abused its discretion in denying Petitioner's discovery requests. Prior to trial, Petitioner's counsel moved for discovery of certain of the complainant's medical records regarding previous sexual assaults. The trial court denied that request because Petitioner failed to show a good-faith, reasonable belief that the records were likely to contain information material to the defense.
It is well-established that "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) ( quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). The Sixth Circuit has held:
[i]n a [federal] habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law. Federalism requires that we accept the state Supreme Court's decision on state law as being correct as state courts must respect the decisions of federal courts on federal law.Long v. Smith, 663 F.2d 18, 22-23 (6th Cir. 1981), cert. denied, 455 U.S. 1024 (1982).
Petitioner's claim is based on state law. Therefore, it is not cognizable on federal habeas corpus review. See Moseley v. French, 6 F. Supp.2d 474 (M.D. N.C. 1998) ("`[N]either the Fifth nor the Fourteenth Amendment guarantees a criminal defendant the right of discovery. This is purely a matter of state law and is not cognizable pursuant to 28 U.S.C. § 2254.'") ( quoting Carrizales v. Wainwright, 699 F.2d 1053, 1054 (11th Cir. 1983)). Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
E. Admission of Evidence Regarding Complainant's Reputation for Truthfulness
Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in refusing to admit evidence regarding the victim's reputation for truthfulness in the community. Petitioner states that he was prepared to present witnesses who would to testify that the victim frequently lied or embellished stories and that the victim had made a false allegation of sexual assault in the past.
The Michigan Court of Appeals rejected Petitioner's claim, holding:
Defendant claims that the trial court erroneously denied him the right to present evidence that complainant made a false allegation of sexual assault in 1990.
The rape-shield statute and court rule prohibit introduction of evidence of a CSC victim's sexual past except under specifically prescribed circumstances. M.C.L. 750.250j; M.S.A. 28.788(9); M.R.E. 404(a)(3). However, our Supreme Court held in People v. Hackett, 421 Mich. 338; 365 N.W.2d 120 (1984), that a defendant "should be permitted to show that the complainant has made false allegations of rape in the past." Id. at 348. . . .
This Court has held:
the defendant is obliged initially to make an offer of proof with regard to the proposed evidence and to demonstrate its relevance to the purpose for which the evidence is sought to be admitted. If necessary, the trial court should conduct an evidentiary hearing in camera to determine the admissibility of the evidence, and at the hearing, the trial court has the responsibility of restricting the scope of cross-examination to prevent questions that would harass, annoy, or humiliate the victim and to guard against fishing expeditions. [People v. Williams, 191 Mich. App. 269, 273 (Mich.Ct.App. 1991)].
The defendant must be able to offer concrete evidence to establish that the complainant had made a prior false accusations, and may not merely conduct a fishing expedition in hopes of finding evidence that the prior accusation was false. Id.
In the instant case, defendant has offered no concrete evidence that defendant's report of the 1990 incident was false. If introduced at trial, the evidence would lead to a fishing expedition concerning which party has truthfully described the 1990 incident. We therefore find no abuse of discretion.People v. Halchishak, slip op. at 4-5.
The Sixth Circuit has held that "[h]abeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994), citing Fuson v. Jago, 773 F.2d 55, 59 (6th Cir. 1985), cert. denied 478 U.S. 1020 (1986). It is well-established that "[e]rrors of application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus actions. . . . Yet, when the error rises to the level of depriving the defendant of fundamental fairness, the claim is remediable on a petition for habeas corpus relief." Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir. 1984) (internal citations omitted). See also Estelle, 502 U.S. at 72 (holding that a federal court may not grant habeas corpus relief simply on the basis that a trial court incorrectly interpreted state evidence rules to allow admission of prior bad acts evidence).
The Court holds that the decision that the testimony regarding the victim's reputation for truthfulness in relation to the 1990 incident was inadmissible did not render Petitioner's trial fundamentally unfair. Petitioner has provided no additional evidence which would call into question the reliability of the state court's conclusion that Petitioner presented no credible evidence that the 1990 allegations were false. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
F. Sentencing Claim
Petitioner claims that the trial court violated the principle of proportionality in sentencing Petitioner to two to fifteen years imprisonment. Petitioner argues that the trial court abused its discretion in refusing to depart downward from the sentencing guidelines.
There exists no constitutional right to strict proportionality in sentencing. Harmelin v. Michigan, 501 U.S. 957 (1997). However, the Eight Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment'." United States v. Organek, 65 F.3d 60 (6th Cir. 1995); see also United States v. Williams, 15 F.3d 1356 (6th Cir. 1994), cert. denied 513 U.S. 966 (1994) (holding that, generally, a sentence within the statutory limitations does not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374 (1982) (holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and . . . successful challenges to the proportionality of particular sentences should be exceedingly rare") (internal quotations omitted).
The State of Michigan sentencing guidelines for second-degree criminal sexual conduct provides for imprisonment for not more than fifteen years. M.C.L.A. 750.520c. Petitioner's sentence is well within the sentencing guidelines. Therefore, the Court finds that Petitioner's sentence is not grossly disproportionate to his crime and does not offend the Eighth Amendment.
G. Cumulative Effect of Alleged Errors
Finally, Petitioner claims that the cumulative effect of the errors denied him a fair trial. Because this Court determines that, with the exception of the reference to the Bobbit case, no errors have occurred, this claim is meritless.
V. Conclusion
For the reasons set forth above, the Court determines that Petitioner is not entitled to habeas corpus relief.
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and that matter is DISMISSED WITH PREJUDICE.