Opinion
CIVIL ACTION NO. 99-CV-73582-DT.
July 13, 2000.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
I. Introduction
Petitioner, William Hoss, Jr.("Petitioner"), presently confined at the Huron Valley Men's Facility in Ypsilanti, Michigan has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is confined in violation of his constitutional rights. In his application, Petitioner challenges his convictions by a jury of second degree murder, M.C.L. § 750.317, second degree home invasion, M.C.L. § 750.110(a)(3), larceny in a building, M.C.L. § 750.360, and unlawfully driving away an automobile, M.C.L. § 750.413. Petitioner was sentenced as a third habitual offender to concurrent sentences of forty to sixty years imprisonment for second degree murder, fifteen to thirty years for second degree home invasion, three to eight years for larceny in a building, and three to ten years for unlawfully driving away an automobile. For the reasons stated below, the application is denied and the matter is dismissed.
Petitioner was also charged with felony murder, M.C.L. § 750.316. He was acquitted of this charge at trial. However, Petitioner contends that the felony murder charge should have been dismissed before trial and that instructing the jury on this charge prejudiced him by unfairly encouraging the jury to find him guilty of second degree murder.
II. Factual Background
Petitioner's convictions arise from an incident where he broke into a home, stole some jewelry and other items, and killed someone while making his escape in a car. The Michigan Court of Appeals summarized the facts of the case as follows:
Defendant broke into a home before the homeowner arrived and spotted his car in the driveway. Defendant ran out of the house and the homeowner drove away to call the police. Defendant drove away from the home at a speed slightly higher than the legal limit when, approximately two minutes away from the home, he ran through a stop sign without braking and without making any major move to avoid hitting a pickup truck on the through street. He hit the pickup truck at approximately 58 mph, killing the driver. Defendant then drove away in the car of a good Samaritan who had stopped to help him. Defendant again drove through stop signs while getting away from the good Samaritan, who was chasing defendant in a car driven by another person who had come on the scene. Defendant was finally arrested at a motel where he held the police at bay for a period of time. Certain property, including jewelry, was seized at that time. The homeowner later identified a ring and necklace as belonging to her.People v. Hoss, Michigan Court of Appeals Docket No. 195661 (October 31, 1997) (unpublished) ( per curiam) at 1.
III. Procedural History
Petitioner's convictions and sentences were affirmed by the Michigan Court of Appeals in his appeal of right. People v. Hoss, Michigan Court of Appeals Docket No. 195661 (October 31, 1997) (unpublished) ( per curiam). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Hoss, Michigan Supreme Court Docket No. 110958 (September 29, 1998).
On July 30, 1999, Petitioner filed the instant petition for a writ of habeas corpus, presenting the following claims:
I. There was insufficient evidence at the preliminary examination and trial to support a conviction of felony murder and the trial judge committed reversible error by denying the motion for a directed verdict and by instructing the jury on felony murder, thereby improperly encouraging the jury to convict Petitioner of second degree murder.
II. Petitioner's conviction for second degree murder is supported by insufficient evidence.
III. The trial court denied Petitioner due process of law by denying his request for jury instructions on negligent homicide and the degrees of negligence.
IV. The trial court denied Petitioner's right to present a defense by excluding accident reports involving the intersection where he ran a stop sign and fatally broadsided the victim.
V. The trial court denied Petitioner a fair trial by an impartial jury by denying his motion for a change of venue and refusing to excuse two jurors for cause.
VI. The trial court denied Petitioner's right to present a defense by refusing to allow his witnesses to testify as to his mental state.
VII. The trial court deprived Petitioner of a fair trial by admitting the bloody jeans into evidence.
VIII. Petitioner's forty to sixty year sentence is disproportionate to his crime.
IX. The Michigan courts improperly denied Petitioner's motion to remand for an evidentiary hearing.
X. The prosecutor mislead the appellate courts by misstating the facts.
IV. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA" or "the Act"), govern this case because Petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 521 U.S. 320 (1997).
The petition is timely, because it was filed within one year of the date after Petitioner's appeal of right became final. 28 U.S.C. § 2244 (d)(1). Giles v. United States, 6 F. Supp.2d 648 (E.D. Mich. 1998); Hudson v. Jones, 35 F. Supp.2d 986 (E.D. Mich. 1999); Matthews v. Abramajtys, 39 F. Supp. 871 (E.D. Mich. 1999).
The AEDPA altered the standard of review that a federal court must use when reviewing an application for a writ of habeas corpus.
As amended, 28 U.S.C. § 2254 (d) provides that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of:, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The United States Court of Appeals for the Sixth Circuit recently discussed the deference to be accorded to a state court's decision on habeas review where a petitioner presents mixed questions of law and fact. The Sixth Circuit has defined an "unreasonable application of clearly established Federal Law" under 28 U.S.C. § 2254 (d)(1) as follows:
the unreasonableness of a state court's application will not be debatable among reasonable jurists, if it is so offensive to existing precedent, so devoid of record support, or so arbitrary as to indicate that it is outside the universe of plausible, credible outcomes.Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir.), cert. denied, ___ U.S. ___ 119 S.Ct. 2340 (1999) (internal citations omitted). See also, Tucker v. Prelesnik, 181 F.3d 747, 752 (6th Cir. 1999), where the court ruled that, "[i]n this circuit, therefore, the writ will issue if the unreasonableness of the state court's application of clearly established precedent is not debatable among reasonable jurists."
If a petitioner challenges a decision based only on a question of law, then the first clause of § 2254(d)(1) applies and "a federal court may grant habeas relief only if it determines that a state court's decision rested on a legal determination that was `contrary to . . . clearly established Federal law, as determined by the Supreme Court.'" Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997)).
A federal court must apply the presumption of correctness to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this presumption. 28 U.S.C. § 2254 (e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998); Harris v. Stovall, 22 F. Supp.2d 659, 663 (E.D. Mich. 1998); West v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996); cert. denied, 518 U.S. 1027 (1996); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). Section 2254(e)(1) applies to cases in which a state court of competent jurisdiction has made "a determination of a factual issue." Section 2254(e)(1) "makes no distinction between the factual determinations of a state trial court and those of a state appellate court." Sumner v. Mata, 449 U.S. 539, 546 (1981).
V. Analysis
A. Issue I — Denial of motions to quash and for directed verdict on felony murder charge
Petitioner contends that the trial judge erred in denying his motion for a directed verdict on the charge of felony murder and allowing that charge to go to the jury. Petitioner was acquitted of felony murder. However, Petitioner argues being charged with felony murder and second degree murder prejudiced him by encouraging the jury to convict him of second degree murder through an unreasoned compromise, rather than render a reasoned and rational verdict.
This claim does not entitle Petitioner to relief for several reasons. First, the only basis for granting federal habeas corpus relief is a violation of federal statutory or constitutional law. Mosely v. Moran, 798 F.2d 182, 185 (7th Cir. 1986). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). A judgment of a state court on a question of state law "conclusively establishe[s]" the meaning of that law. Bute v. Illinois, 333 U.S. 640, 668 (1948).
The Michigan courts have held that a murder committed while attempting escape from or to prevent detection of a felony is felony murder, if the murder is committed as apart of a continuous transaction with, or is otherwise immediately connected with the underlying felony. People v. Gimotty, 216 Mich. App. 254, 258 (1996) (defendant struck felony murder victim with his car killing victim as defendant fled from police in a high speed chase after defendant's passenger had stolen six dresses from a women's clothing store); People v. Oliver, 63 Mich. App. 509 (1975); People v. Goree, 30 Mich. App. 490, 495 (1971).
This Court has "no power to revise judgments on questions of state law." Henry v. Mississippi, 379 U.S. 443, 447 (1965). The Michigan courts have interpreted the State's felony murder statute and determined that a murder perpetrated in the course of fleeing to prevent arrest for or detection of the commission of an enumerated felony is felony murder where "the murder is committed as a part of a continuous transaction with, or is otherwise immediately connected with, the underlying felony." Gimotty, 216 Mich. App. at 257. This Court has no authority to revise how the Michigan legislature or courts define the elements of felony murder.
In the case at bar the Michigan Court of Appeals found that:
Viewed in the light most favorable to the prosecution, there was sufficient evidence to find that defendant was still in the process of escaping because the collision occurred only two miles from the home [of the larceny victim] and on a route that took only two minutes to cover. In further support of a finding that defendant was still escaping, we look to the fact that the defendant did not alter his slightly excessive speed as he went through the stop sign even though there was a visible stop ahead sign approximately two tenths of a mile before the stop sign that defendant ignored. In addition, although there was some movement of defendant's vehicle at the time of impact, there was no evidence of any real attempt by defendant to avoid the accident or to apply the brakes.People v. Hoss, Michigan Court of Appeals Docket No. 195661 at 2.
These findings of fact of the Michigan Court of Appeals are binding on this Court as Petitioner has not rebutted them with clear and convincing evidence. 28 U.S.C. § 2254 (e)(1); Warren, 161 F.3d at 360-61; Lundy, 888 F.2d at 469. Furthermore, Petitioner has not disputed the essential facts found by the Michigan Court of Appeals concerning this matter. Davis v. Franzen, 671 F.2d 1056 (7th Cir. 1982). Petitioner admits that he was driving away from the scene where he had broke and entered and committed larceny a few minutes earlier. Further, he does not dispute that he struck the victim's truck broadside killing the driver about two minutes after fleeing the scene of the break-in and larceny. Petitioner simply argues that it was improper to charge him with felony murder because the police had not been contacted, there was no one following him from behind (although he admits a citizen trying to follow him in a car had passed him and was looking for him in her rear view mirror), and he had reached a zone of temporary safety.
The trial court and the Michigan Court of Appeals found that there was sufficient evidence that Petitioner had not reached a zone of safety and that his flight was immediately connected to his break-in and larceny to charge him with felony murder under Michigan law. On the basis of the facts as found by the Michigan Court of Appeals and admitted by Petitioner, this Court concludes that these decisions were not arbitrary or unreasonable. Consequently, this claim fails.
Furthermore, if this Court were to find that the rule from United States ex. rel. Hentenyi v. Wilkins, 348 F.2d 844 (2nd Cir. 1965), cert. denied, 383 U.S. 913 (1966) and Price v. Georgia, 398 U.S. 323 (1970), could be extended to the facts of this case and form a basis for habeas relief:, this Court would find no prejudice. Hentenyi held that submission of an unlawful first degree murder charge was prejudicial when the jury returned a verdict of guilty on a second degree murder charge. In Price the defendant was tried for murder and found guilty of manslaughter. His conviction was overtured on appeal and he was retried for murder. Price was again found guilty of manslaughter. The Supreme Court reversed, finding that Price's reprosecution for murder was barred on double jeopardy grounds and rejected the State's argument that the error was rendered harmless by the fact that the defendant was convicted only of the lesser, unbarred offense.
In the present case, submission of the felony murder charge was not unlawful. Therefore, Petitioner cam-lot prevail on a claim that an unlawful felony murder charge illegally increased the chances of a compromise verdict on the second degree murder charge. Consequently, this claim is denied.
B. Issue II — Sufficiency of the evidence claim
Petitioner contends that his second degree murder conviction is supported by insufficient evidence, because there was insufficient evidence of malice.
The Due Process Clause of the Fourteenth Amendment protects an accused in a criminal case against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The appropriate standard of review in a federal habeas corpus proceeding involving a claim of insufficiency of evidence in a state criminal conviction is whether, after reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). United States v. Coiner, 93 F.3d 1271, 1275 (6th Cir. 1996). This standard of review recognizes the trier of fact's responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 318.
The reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the finder of fact. Glasser v. United States, 315 U.S. 60, 80 (1942); Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993); cert denied, 510 U.S. 1200 (1994). Determination of the credibility of a witness is within the sole province of the finder of fact and is not subject to review. United States v. Saunders, 886 F.2d 56 (4th Cir. 1989). The habeas court does not substitute its judgment for that of the jury. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). The Jackson standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n. 16.
Petitioner's insufficiency of the evidence claim has no merit.
Petitioner was convicted of second degree murder, contrary to M.C.L. § 750.317. Second degree murder is committed if a defendant acts with one of three possible intents:
1. an intent to kill;
2. an intent to do great bodily harm; or
3. an intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result.People v. Dykhouse, 418 Mich. 488, 494 (1984); People v. Morrin, 31 Mich. App. 301, 310-12 (1971); People v. Flowers, 191 Mich. App. 169, 175 (1991). To prove second degree murder, a prosecutor must establish that the defendant either (1) intended to kill or do great bodily harm to the victim, or (2) committed a wanton and wilful act the natural tendency of which is to cause death or great bodily harm. People v. Klave, 130 Mich. App. 388 (1983). The intent to kill may be implied where the natural tendency of the defendant's behavior is to cause death or great bodily harm. People v. Watts, 149 Mich. App. 502, 513 (1986); People v. Morrin, 31 Mich. App. at 310-12. Second degree murder is not a specific intent crime. In Re Robinson, 180 Mich. App. 454, 462 (1989); People v. Barnard, 93 Mich. App. 590 (1979).
"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.
Thus, as `malice aforethought' is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim and even though he acted on the spur of the moment." People v. Morrin, 31 Mich. App. at 310-12 (footnotes omitted, emphasis added).
In the case at bar evidence was presented that Petitioner broke into a home, stole some items, ran out of the home, and made a rapid escape by car while the homeowner drove away to call the police. Further, evidence was presented that, while driving about 58 miles per hour, Petitioner ran a stop sign without stopping or attempting to stop, and then crashed broadside into a pickup truck which was passing through the intersection with the right of way, killing the driver. Petitioner had just driven past a stop ahead sign which was about two tenths of a mile before the intersection in question. The jury and the Michigan Court of Appeals found that Petitioner did not lower his speed, or make any real attempt to avoid the accident or to apply the brakes.
The natural tendency of running a stop sign at over fifty milers per hour is to cause great bodily harm or death to anyone passing through the intersection. Petitioner hit someone driving a pickup truck, an object which can be seen from a substantial distance away. Yet there was no evidence that he made any attempt to take evasive action or stop. The evidence was sufficient for a rational factfinder to conclude that Petitioner's actions were wanton and wilful and that the natural tendency of his actions was to cause great bodily harm or death. Consequently, the evidence was sufficient to support Petitioner's conviction for second degree murder. Warren, 161 F.3d at 360-61. Furthermore, this Court concludes that the Michigan Court of Appeals' ruling that there was sufficient evidence to support Petitioner's second degree murder conviction was a reasonable application of the applicable federal constitutional law. Accordingly, Petitioner's challenge to the sufficiency of the evidence supporting his second degree murder conviction is denied.
C. Issue III — Denial of negligent homicide and degrees of negligence instructions
Petitioner contends that he was denied a fair trial because the trial judge declined to instruct the jury on negligent homicide and the degrees of negligence. The Michigan Court of Appeals found that this issue did not require examination because any error was harmless. The jury was instructed on felony murder, second degree murder, involuntary manslaughter, and gross negligence. Petitioner was convicted of second degree murder. The Michigan Court of Appeals reasoned that, since the jury was instructed on involuntary manslaughter — a lesser included offense of second degree murder — and nonetheless convicted him of second degree murder, any error in refusing to give another lesser included offense instruction was harmless beyond a reasonable doubt. People v. Beach, 429 Mich. 450, 491-93 (1988). This Court agrees. Any error in declining to give the omitted instructions did not have a substantial and injurious effect on the jury's verdict. Therefore, this claim does not warrant habeas relief. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993).
Furthermore, in determining whether jury instructions violate a defendant's constitutional due process rights to a fair trial, the reviewing court must consider the charge to the jury in its entirety. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). To rise to the level of a constitutional violation, the alleged erroneous instruction must so affect the entire trial that a conviction violates due process. For purposes of a constitutional claim, it is insufficient that the instructions are undesirable, erroneous, or even universally condemned. Henderson v. Kibbe, 431 U.S. 145, 154 (1977) In general, errors in instructions of a trial court to a jury in a state criminal trial are not reviewable in federal habeas corpus proceedings. They are not constitutional errors unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law. Long v. Smith, 633 F.2d 18, 23 (6th Cir. 1981), cert. denied, 455 U.S. 1024 (1982).
Petitioner's jury was instructed on the lesser included offense of involuntary manslaughter, yet convicted him of second degree murder, Petitioner's claim that the jury also should have been instructed on negligent homicide and the degrees of negligence does not merit habeas relief. The instructions on involuntary manslaughter and gross negligence gave the jury an opportunity to find Petitioner guilty of a crime less than murder. Moreover, Petitioner does not challenge the instructions which were given. The omission of the requested instructions did not render Petitioner's trial fundamentally unfair. Therefore, Petitioner's claim that he was denied a fair trial by the trial judge's decision not to instruct on negligent homicide and the degrees of negligence is denied.
D. Issue IV — Exclusion of reports of other accidents at the same intersection
Petitioner contends that his constitutional rights were violated when the trial court declined to allow admission of police accident reports concerning other accidents at the intersection in question. The trial court found that the reports were inadmissible under Michigan evidentiary law because they did not indicate that the other accidents involved claims that the offending driver did not see the stop sign, as alleged by Petitioner. Petitioner admits that the reports did not include allegations that other drivers had not seen the stop sign.
On habeas corpus review, the reviewing court usually does not question errors in the application of state law, especially evidentiary rulings concerning the admission and exclusion of evidence. Cooper v. Sowders, 837 F.2d 284, 287 (6th Cir. 1988). The reviewing court will only grant federal habeas corpus relief where a violation of a state's evidentiary rule results in the denial of fundamental fairness, and therefore, a violation of due process. Id. As the Eleventh Circuit stated, the standard in determining whether an erroneous evidentiary ruling "constitutes a denial of fundamental fairness is whether the evidence is `material in the sense of a crucial, critical, highly significant factor.'" Leverett v. Spears, 877 F.2d 921, 925 (11th Cir. 1989)
The reports in question did not involve claims that the other drivers failed to see the stop sign. Furthermore, the judge's ruling did not prevent Petitioner from testifying that he did not see the stop sign or presenting photographs or other evidence depicting the intersection. There is no indication that the other accident reports were crucial, critical, or highly significant, or that exclusion of this evidence was improper or denied Petitioner a fundamentally fair trial. Additionally, Petitioner has not shown that exclusion of this evidence had a substantial and injurious effect on the jury's verdict. Therefore, Petitioner's claim that he was denied a fair trial by the trial judge's decision not to admit accident reports of other accidents at the same intersection is denied. Leverett, 877 F.2d at 925; Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993).
E. Issue V — Denial of motion for change of venue and challenges to two jurors for cause
Petitioner contends that he was denied a fair trial when the trial judge denied his motion for a change of venue and refused to excuse two jurors for cause.
The Supreme Court has established two standards to guide courts in determining whether a change of venue due to pretrial publicity is warranted, presumptive prejudice and actual prejudice. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1998). The presumed prejudice standard is employed when "`the setting of the trial [is] inherently prejudicial.'" Id. at 364 (quoting Murphy v. Florida, 421 U.S. 794, 803 (1975)). Prejudice is presumed where pretrial publicity is so inflammatory and negatively biased against the defendant and so pervasive and as to saturate the community and make seating an impartial jury impossible.
"Actual prejudice occurs when the prejudice actually enters the jury box and affects the jurors." Heath v. Jones, 941 F.2d 1126, 1133 (11th Cir. 1991). The petitioner cannot establish actual prejudice without proving that at least one juror who actually sat on his jury should have been excused for cause.
In addressing this issue, the Michigan Court of Appeals made the following findings:
Defendant failed to meet his burden of proof on this issue. The newspaper articles presented to this Court do not demonstrate publicity that is extensive or inflammatory nor do they demonstrate a strong community feeling against the defendant. In addition, a review of the record reveals that none of the jurors who had seen the media coverage and who actually sat on the jury had prejudged the case.People v. Hoss, Michigan Court of Appeals No. 195661 at 3.
Petitioner contends that many jurors stated in voir dire that they had heard of his case, but asserted that they had not prejudged it and could be fair and impartial. Petitioner also contends that many of the jurors stated that they or their family members had been involved in serious automobile accidents and/or had been the victims of breaking and entering incidents. These contentions do not support Petitioner's claim that denying his motion for a change of venue denied him due process of law. News coverage of a crime or accident which is purely factual in nature, or other pretrial publicity which is not inflammatory, or negatively prejudicial, and which does not saturate a community does not create a presumption of prejudice. Heath, 941 F.2d at 1133. Speculation as to juror bias is insufficient to establish a violation of the right to a fair and impartial jury. Booker v. Israel, 610 F. Supp. 1310, 1316 (E.D. Wis. 1985).
Petitioner has not shown or even alleged that the pretrial publicity in his case made seating an impartial jury impossible, or that there was a state of community sentiment against him such that jurors' declaration that they could be fair and impartial should not have been believed. Additionally, Petitioner has not submitted evidence that would rebut the Michigan Court of Appeals' findings of fact concerning the nature and character of the pretrial newspaper publicity about the case. Therefore, Petitioner cannot prevail on a claim that presumptive or inherent prejudice entitled him to prevail on a motion for a change of venue.
The Michigan Court of Appeals found that none of the jurors who had seen the media coverage and actually sat on Petitioner's jury had prejudged his case. This finding of historical fact is dispositive of Petitioner's claim in the absence of clear and convincing evidence in rebuttal. Patton v. Yount, 467 U.S. 1025, 1036-37 (1984). Petitioner has not rebutted this finding with evidence, he merely argues that it was not correct. Therefore, Petitioner cannot prevail on a claim that actual prejudice in the jury box denied him a fair trial.
Furthermore, although Petitioner asserts that the trial judge improperly denied his motions to excuse two jurors for cause, these two jurors did not sit on Petitioner's jury. When defense counsel's motions to excuse these two jurors for cause were denied, the defense used peremptory challenges to remove these jurors from the jury pool. Regarding this claim, the Michigan Court of Appeals found:
[D]efendant failed to demonstrate a desire to excuse another subsequently summoned juror and failed to show that the subsequently summoned juror was objectionable. Although defendant lists many jurors and facts about them, he makes no specific arguments about any of them that would make them objectionable. In addition, having reviewed the record, this Court is not persuaded that defendant met his burden of showing bias or prejudice with regard to the two jurors.People v. Hoss, Michigan Court of Appeals No. 195661 at 3.
Petitioner has not shown that any juror who participated in deciding his case was actually prejudiced and should have been removed for cause. The United States Supreme Court has ruled that where a juror who should have been excused for cause was removed by defendant's peremptory challenge, any claim that the jury was not impartial was required to focus, not on the excused juror, but on the jurors who ultimately sat. Ross v. Oklahoma, 487 U.S. 81, 85-91 (1988). In Ross the Supreme Court ruled that a defendant's right to an impartial jury was not violated when he used a peremptory challenge to excuse a juror who should have been excused for cause, even though the failure to remove that juror for cause may have resulted in a jury panel different from that which would have otherwise decided the case. Id. In the present case, Petitioner has not shown that any juror who actually sat on his jury was prejudiced. Therefore, any error which may have occurred in denying his motions to excuse two jurors for cause did not violate his constitutional rights.
This Court concludes that the Michigan Court of Appeals' ruling denying Petitioner's claims that he was denied a fair trial by the trial court's denial of his motion for a change of venue and his motions to disqualify two jurors for cause is a reasonable application of controlling federal law. Consequently, these claims are denied.
F. Issue VI — Trial court's refusal to allow certain testimony about Petitioner's mental state
Petitioner contends that he was denied due process of law when the trial judge refused to allow physician's assistant Hope Smith to offer her opinion as to the behavioral consequences of hypoglycemia. The trial court ruled that the question was not within the physician assistant's expertise. Errors in the application of state law, especially evidentiary rulings concerning the admission and exclusion of evidence, do not warrant habeas corpus relief unless they deprive the defendant of a fundamentally fair trial. Cooper, 837 F.2d at 287. Hope Smith was allowed to testify concerning Petitioner's mental state and his depression at other times in her testimony. Consequently, any error in limiting her ability to answer the one question at issue in this claim did not prevent Petitioner from raising a defense and was harmless.
The Michigan Court of Appeals found that the trial court did abuse its discretion by refusing to allow Petitioner's foster mother to answer whether she thought defendant was suffering from severe depression. People v. Hoss, Michigan Court of Appeals No. 195661 at 3. This question was appropriate as calling for a lay opinion regarding sanity. People v. Murphy, 416 Mich. 453, 465 (1982). The Michigan Court of Appeals also noted that, despite not being allowed to answer this one question, "this witness gave considerable evidence of defendant's mental state through numerous other questions." People v. Hoss, Michigan Court of Appeals No. 195661 at 3. Consequently, the Michigan Court of Appeals found that the erroneous refusal to allow Petitioner's foster mother to answer one question about whether he was severely depressed was harmless beyond a reasonable doubt. This Court concludes that this ruling by Michigan Court of Appeals is a reasonable application of federal constitutional law. Chapman v. California, 386 U.S. 18 (1967). Additionally, Petitioner has not shown that this error had a substantial and injurious effect or influence on the jury's verdict.
Consequently, Petitioner's claims that he was denied a fair trial by the trial court's refusal to allow 1) Hope Smith to answer a general question about hypoglycemia and behavior and 2) Petitioner's foster mother to answer a question about his mental state are denied.
G. Issue VII — Alleged admission of the bloody jeans
Petitioner contends that admission of a pair of bloody jeans into evidence was reversible error. The Michigan Court of Appeals found that this issue did not require review because the jeans were never admitted into evidence at Petitioner's trial for murder, home invasion, larceny in a building, and unlawfully driving away an automobile. Petitioner contends that the jeans were the fruit of an unlawful search, but has not alleged when or where the jeans were admitted as evidence, or what effect, if any, they might have had on any proceeding.
This Court concludes that this claim does not entitle Petitioner to habeas relief because 1) he has not overcome the presumption of correctness of the Michigan Court of Appeals' finding that the bloody jeans were not admitted as evidence at his trial and 2) he has not shown how any admission of the jeans had a substantial and injurious effect on the outcome of his trial.
H. Issue VIII — Sentencing claims
Petitioner contends that his forty to sixty year sentence for second degree murder unarmed robbery is disproportionate to his crime. Petitioner was sentenced as a third habitual offender.
The United States Supreme Court expressly limited review of allegedly disproportionate sentences in Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a case in which the Supreme Court ruled that a mandatory life sentence without possibility of parole for a first offense of possession with intent to distribute more than 650 grams of cocaine was not cruel and unusual punishment prohibited by the Eighth Amendment. Following Harmelin, the Sixth Circuit has ruled that "there is no requirement of strict proportionality; the eighth amendment is offended only by an extreme disparity between crime and sentence." United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
Petitioner alleges that his forty to sixty year sentence for second degree murder is disproportionate. This Court disagrees. Petitioner does not explicitly claim that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Petitioner's forty to sixty sentence for second degree murder does not violate the Eighth Amendment, because the United States Supreme Court has held that a forty year sentence for possession with intent to deliver nine ounces of marijuana did not violate the Eighth Amendment. Hutto v. Davis, 454 U.S. 370 (1982) ( per curiam). Petitioner's crimes are more serious and violent than the defendant's crimes in Hutto.
The maximum penalty for second degree murder in Michigan is life imprisonment. M.C.L. § 750.317. Hence, Petitioner's sentence does not exceed the statutory limit. Petitioner's crime was a violent felony that resulted in the death of an innocent person. Although it appears that Petitioner did not intend to kill or injure the victim, an actual intent to kill or do great bodily harm is not an element of second degree murder. Further, although Petitioner did not intend to kill or harm the victim, Petitioner did intend the breaking and entering and theft which preceded and lead to the victim's death.
For all of the above reasons, this Court concludes that Petitioner's sentence does not violate the Eighth Amendment's constitutional prohibition against grossly or extremely disproportionate punishment.
Petitioner contends that it was improper for Judge Holowka to sentence him after he was tried before Judge Joslyn. There is no constitutional requirement that the judge who presides over a criminal defendant's trial also sentence the defendant upon conviction. This claim is, at most, a state law claim which is not cognizable in federal habeas corpus.
The Michigan Court of Appeals noted that the prosecutor contends and the defendant does not deny that the trial judge was unavailable to sentence Petitioner because the judge had a heart attack. Petitioner has not rebutted this finding. In any event, Petitioner had no constitutional right to be sentenced by the trial judge.
I. Issue IX — Denial of Evidentiary Hearing
According to Petitioner, psychologist Dr. Shazer testified that Petitioner consumed alcohol, cocaine, LSD, and two prescription drugs, Flexeril and Wygesic, prior to committing his crimes. Petitioner's Brief at 3. Petitioner asserts that he has discovered that the potentially harmful effects of the two prescription drugs are increased by consuming them together and with alcohol. Petitioner further contends that the effects of these drugs together may have caused him to be temporarily insane and that trial counsel was ineffective for failing to investigate and develop this defense at trial. Petitioner claims that the Michigan Court of Appeals denied him due process of law by denying his motion to remand to the trial court for a hearing on his ineffective assistance of counsel claim and his related claims regarding the prescription drugs he allegedly was taking.
The Michigan Court of Appeals denied Petitioner's first motion to remand because Petitioner "failed to submit an affidavit or offer of proof regarding all four factors for newly discovered evidence." People v. Hoss, Michigan Court of Appeals Docket No. 195661 (December 30, 1996). A subsequent motion to remand was denied "because defendant's affidavit by itself is insufficient at this point to justify a remand." People v. Hoss, Michigan Court of Appeals Docket No. 195661 (January 14, 1997).
The amended subsection of § 2254 covering evidentiary hearings now reads:
(2) If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254 (e)(2).
The amended subsection of § 2254 creates a presumption that there shall be no evidentiary hearing granted by the habeas court unless the petitioner's claims rely on: (1) a new rule of constitutional law not previously available, made retroactive to cases on collateral review by the Supreme Court, or (2) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (3) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying charge. Burns v. Parke, 948 F. Supp. 1310, 1325-26 (N.D. Ind. 1996), aff'd, 116 F.3d 256 (7th Cir. 1997), cert. denied, 522 U.S. 990 (1997).
Petitioner contends that trial counsel was ineffective for failing to investigate and present evidence at trial in support of his insanity defense that the prescription drugs Flexeril and Wygesic may have interacted with each other and with the alcohol, cocaine, and LSD he also consumed. Petitioner also contends that he lacked the necessary mental state to be guilty of second degree murder and that evidence of the possible effects of Flexeril and Wygesic would have supported this defense. Petitioner seeks an evidentiary hearing concerning these matters.
Petitioner's Flexeril-Wygesic claim does not entitle him to an evidentiary hearing. Petitioner's claim is not based on a new rule of constitutional law made retroactive by the Supreme Court. Petitioner claims that trial counsel was ineffective for failing to develop and present evidence concerning the possible effects of Flexeril and Wygesic. To be entitled to an evidentiary hearing, Petitioner must show that the factual predicate of his claim could not have been previously discovered through the exercise of due diligence and that, if proven, the facts underlying the Flexeril-Wygesic claim would be sufficient to prove by clear and convincing evidence that but for counsel's failure to develop and present this evidence, no reasonable jury would have convicted him.
Petitioner has filed copies of pages from the Physician's Drug Reference ("PDR"), letters from the manufacturers of Flexeril and Wygesic, and Food and Drug Administration ("FDA") reports concerning incidents of reported adverse reactions to these drugs. Petitioner sought evidentiary hearings in state court to develop this claim and was denied. This Court shall assume without deciding that Petitioner was diligent in his attempt to develop the facts underlying his ineffective assistance claim and thus, could show cause for the failure to develop these facts in state court. Burris, 948 F. Supp. at 1325. Nonetheless, Petitioner is not entitled to an evidentiary hearing on this claim.
The Court notes that the FDA documents state that a "cause-effect relationship between each drug and reaction cannot be established with certainty in all cases." The letter from the maker of Wygesic states that less than 1% of patients taking this drug experience side-effects, the most common of which are dizziness, sedation, nausea, and vomiting. The letter cautions that Wygesic may impair driving ability. The PDR also cautions that Flexeril may impair driving. The PDR warns against the simultaneous ingestion of Wygesic and alcohol because of their additive effects.
To be entitled to an evidentiary hearing in this Court, Petitioner also must show by clear and convincing evidence that, but for the alleged constitutional error — the failure to develop and present evidence concerning Flexeril and Wygesic-no reasonable factfinder would have convicted him of second degree murder. Petitioner cannot meet this burden. Petitioner admits that in addition to the alleged ingestion of Flexeril and Wygesic as prescribed by his doctor, he also ingested alcohol, cocaine, and LSD before he committed the criminal acts at issue. It is undisputed that Petitioner's ingestion of alcohol, cocaine, and LSD were voluntary acts and not prescribed by any medical doctor. The potential adverse psychological effects of these drugs is well known. Because Petitioner voluntarily consumed alcohol, cocaine, and LSD in addition to Flexeril and Wygesic before committing his crimes, he will be unable to show that, but for any failure to develop a Flexeril-Wygesic defense, no reasonable jury would have convicted him.
Furthermore, Petitioner alleges that he was rendered insane by the interactions of the various prescription, legal, and illegal drugs he had taken shortly before the time he broke in the victim's home and killed someone while escaping by driving away.
However, voluntary intoxication is not a defense to a general intent crime and second degree murder is a general intent crime under Michigan law. People v. Langworthy, 416 Mich. 630, 652 (1982) (holding that second-degree murder is not a specific-intent crime for which the defense of voluntary intoxication may be asserted). Petitioner voluntarily ingested alcohol, cocaine, and LSD in addition to Flexeril and Wygesic. Therefore, Petitioner cannot show by clear and convincing evidence that a reasonable factfinder would have found that his intoxication and any resultant mental state was due to the effects of Flexeril and Wygesic. Consequently, he cannot show that a reasonable factfinder would have found his intoxication was involuntary because it was attributable to the unexpected effects of prescription drugs. Hence, Petitioner cannot show by clear and convincing evidence that he would have prevailed on an intoxication defense.
"Because second-degree murder does not require intent to kill, but rather, only wanton and willful disregard malice need be shown; and, because we have concluded that voluntary intoxication may not negate this latter category of malice, we believe that voluntary intoxication should not be a defense to a charge of second-degree murder. . . . In short, we agree with the majority of jurisdictions which hold: `As between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry, but as between murder in the second degree and manslaughter it is never material and cannot be considered.'" People v. Langworthy, 416 Mich. at 651-52 (quoting Johnson v. Commonwealth, 135 Va. 524, 529 (1923)).
Under Michigan law an individual who is voluntarily intoxicated does not have grounds for an absolute defense based upon his insanity. People v. Caulley, 197 Mich. App. 177, 185 (1993) (citing CJI2d 859 7.10 and M.C.L. § 768.29a(1)). The Caulley court noted that the one exception to this general rule is if the voluntary continued use of mind-altering substances results in a settled condition of insanity before, during, and after the alleged offense. Id. (citing People v. Conrad, 148 Mich. App. 433, 438-41 (1986). Under the facts of the case at bar, the evidence offered by Petitioner was not that long term use of various substances had resulted in a settled condition of insanity. Rather, Petitioner claims that his underlying mental condition was affected by more recent use of legal, illegal, and prescription drugs in combination, causing unforeseen side effects, including the escalation of his possible mental illness to a psychotic state. The defense of temporary insanity caused by the voluntary consumption of alcohol or controlled substances at the time of his offense is precluded by statute in Michigan. M.C.L. § 768.21a(2); Conrad, 148 Mich. App. at 438. Because Petitioner alleges that the voluntary consumption of alcohol, cocaine, and LSD in addition to Flexeril and Wygesic caused him to be temporarily insane, he cannot show by clear and convincing evidence that no reasonable jury would have failed to acquit him based on his insanity defense. On the contrary, temporary insanity induced by the voluntary consumption of mind-altering drugs is not an available defense in Michigan.
Petitioner is also not entitled to an evidentiary hearing concerning the braking system in the car he used to escape from the crime scene. The Michigan Court of Appeals summarized the facts of the case as indicating that Petitioner hit the pickup truck at approximately 58 mph, killing the driver after he drove through the stop sign without braking and that there was no evidence of any real attempt by defendant to avoid the accident or to apply the brakes. People v. Hoss, Michigan Court of Appeals Docket No. 195661 at 1-2. Evidence was presented at trial that the brakes on the car Petitioner was driving were not functioning perfectly. However, evidence was also presented that Petitioner was traveling at about 58 miles per hour and made no attempt to stop while passing through an intersection controlled by a stop sign.
Petitioner has not alleged the existence of any potential problems with the car's braking system which, if proven, would constitute clear and convincing evidence that no reasonable factfinder would have convicted him of second degree murder. A wanton and wilful disregard of the likelihood that the natural tendency of a person's behavior is to cause death or great bodily harm satisfies the malice requirement of second degree murder, Langworthy, 416 Mich. at 649. This element was proven by evidence that Petitioner drove through the intersection at over fifty miles per hour without trying to stop. Because there was proof that he entered the fatal intersection at about fifty-eight miles per hour without attempting to use the brakes, Petitioner cannot show by clear and convincing evidence that, but for any failure to present evidence regarding alleged problems with the car's brakes, no reasonable factfinder would have convicted him.
Consequently, Petitioner is not entitled to an evidentiary hearing and this claim is denied.
J. Issue X — Alleged prosecutorial misrepresentations
Petitioner contends that the prosecutor misrepresented the facts of Petitioner's case in his appellate brief This claim is frivolous. On habeas review, the standard to be applied to claims of prosecutorial misconduct is whether the conduct was so egregious so as to render the entire trial fundamentally unfair. Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, 444 U.S. 936 (1979). The habeas court must decide whether the prosecutor's statement likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). In deciding whether prosecutorial misconduct mandates that habeas relief be granted, the Court must apply the harmless error standard. Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979). The Court must examine the fairness of the trial, not the culpability of the prosecutor. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993).
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) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974); United States v. Young, 470 U.S. 1, 11-12 (1985); United States v. Blandford, 33 F.3d 685, 708 (6th Cir. 1994); and United States v. Bess, 593 F.2d 749 (6th Cir. 1979).
The above-cited cases agree that prosecutorial misconduct may warrant habeas relief where it is so egregious that it has rendered the defendant's trial fundamentally unfair. Nothing in this line of cases suggests that misstatements or improper arguments in an appellate brief may warrant the extraordinary relief of overturning a conviction on habeas corpus review. Furthermore, Petitioner does not allege that the trial record was destroyed and the Michigan appellate courts relied on the prosecutor's version of the facts in reaching their decisions. There is no reason to presume that the Michigan appellate courts did not have the actual trial record available to them. Consequently, this claim does not merit relief and is denied.
VI. Conclusion
This Court concludes that none of Petitioner's claims merit habeas relief Therefore, the Petition shall be denied and the matter dismissed.
Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner's motion for an evidentiary hearing on whether counsel was ineffective for failing to investigate, develop, and present evidence concerning Flexeril and Wygesic is DENIED. IT IS FURTHER ORDERED that Petitioner's motion to expand the record is DENIED. IT IS FURTHER ORDERED that Petitioner's motion for the appointment of counsel is DENIED.