Opinion
Case No. 4:00-cv-111.
March 20, 2003.
REPORT AND RECOMMENDATION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner filed his habeas application on July 14, 2000, and the Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214 ("AEDPA") applies to his action. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.), cert. denied, 522 U.S. 1112 (1998). Petitioner is serving a term of 5 to 10 years, imposed by the Jackson County Circuit Court on June 25, 1997, after a jury convicted petitioner of gross indecency, in violation of Mich. Comp. Laws § 750.338b. In his pro se petition, petitioner raises five grounds for relief, as follows:
I. PETITIONERS STATE AND FEDERAL DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS NOT DISCHARGED, BECAUSE THE 1989 AMENDMENT TO MCL 780.131(2); MSA 28.969(1), (2) IS UNCONSTITUTIONAL, AND THE PROSECUTOR FAILED TO BRING PETITIONER TO TRIAL WITHIN 180 DAYS OF THE ARREST WARRANT.
II. PETITIONERS STATE AND FEDERAL DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS NOT DISCHARGED, BECAUSE THE GROSS INDECENCY STATUTE IS CONSTITUTIONALLY VOID FOR VAGUENESS, AND CONSENSUAL SEXUAL INTERCOURSE BETWEEN A HUSBAND AND WIFE DOES NOT CONSTITUTE GROSS INDECENCY.
III. PETITIONERS STATE AND FEDERAL DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS NOT DISCHARGED, BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTION, AND THE PROSECUTION WITHHELD EVIDENCE THAT WOULD HAVE EXONERATED PETITIONER.
IV. PETITIONER WAS DEPRIVED OF HIS STATE AND FEDERAL RIGHTS TO DUE PROCESS OF LAW, FAIR TRIAL, AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL, WHERE DEFENSE COUNSEL FAILED TO CALL WITNESSES ESSENTIAL TO THE ASSERTION OF AN "INNOCENCE" DEFENSE; AND WHERE DEFENSE COUNSEL FURTHER FAILED TO INVESTIGATE VIDEO TAPE EVIDENCE THAT WOULD HAVE BEEN EXCULPATORY TO PETITIONERS INNOCENCE DEFENSE.
V. PETITIONERS CONVICTION VIOLATED THE DOUBLE JEOPARDY CLAUSE UNDER BOTH STATE AND FEDERAL CONSTITUTION(S).
Respondent has filed an answer to the petition (docket #11) stating that the grounds should be denied because they are either noncognizable procedurally defaulted, or without merit. Upon review and applying the AEDPA standards, I find that grounds one and two raise noncognizable state-law claims, ground two also is procedurally defaulted, and grounds three, four and five are without merit. Accordingly. I recommend that the petition be denied.
Proposed Findings of Fact
A. Trial Court Proceedings
The state prosecution arose when Petitioner engaged in sexual intercourse with his wife in the visiting room of the J. Robert Cotton Correctional Facility ("JCF"). According to the facts at trial, on April 1, 1995, Petitioner was a prison inmate and housed at JCF in Jackson, Michigan. (TT 161.) Petitioner's wife, Shurie Jones, came to visit him on that date. When she arrived, Shurie Jones changed from her pants into a skirt, under which she wore no underwear. (TT 132-35.) Shortly thereafter, Corrections Officer Scott Grow saw his own desk in the visiting room shaking. (TT 155-56, 160.) When he looked up, he noticed that visitors in the visiting room were looking at him, and he concluded that something was going on. (TT 160.) Grow noticed Petitioner leaning on a crutch against the side of the desk and thrusting forward. (TT 161.) Petitioner was partially blocked from Grow's view by 4 1/2 foot shelves on the corner of the desk. (TT 172, 195.) Petitioner's children were standing behind and facing Petitioner and his wife, partially shielding them from view. (TT 163.) As he came around the desk, Grow saw Petitioner hunched over his wife and thrusting up against her. (TT 161-62.) Shurie Jones' dress was raised and Grow could see her naked genital area and buttocks. (TT 163-64.) He also was able to see Petitioner's erect penis just a few inches away from Jones' vagina. (TT 166.) As Grow approached, both Petitioner and his wife covered themselves. (TT 163-66.) Grow observed fluid on Petitioner's erect penis. (TT 169.) Grow then escorted Petitioner out of the visiting area.
Petitioner was charged with one count of gross indecency. On March 29, 1996, Jackson County Circuit Judge Chad Schmucker quashed the gross indecency information and remanded the matter to the district court for trial on the misdemeanor offense of indecent exposure. The prosecutor filed an interlocutory appeal. The Michigan Court of Appeals reversed Judge Schmucker's decision and reinstated the gross indecency charge. People v. Jones, 222 Mich. App. 595, 563 N.W.2d 719 (1997).
Following a jury trial, Petitioner was convicted of gross indecency, in violation of Mich. Comp. Laws § 750.338b. In August 1997, Petitioner was sentenced to a term of 5 to 10 years as an habitual offender, third offense, in violation of Mich. Comp. Laws § 769.11.
B. Direct Appeal
In September 1997, through counsel, Petitioner filed a direct appeal to the Michigan Court of Appeals, raising two claims regarding his sentence. On October 15, 1998, Petitioner filed a pro per supplemental brief in which he raised the same five issues he raises in the instant petition, and in which he sought remand for a Ginther hearing on his claim of ineffective assistance of counsel. On December 10, 1998, the Michigan Court of Appeals denied Petitioner's motion for remand for a Ginther hearing as untimely and unwarranted. (Dkt # 19.) The Michigan Supreme Court denied leave to appeal the denial of the Ginther hearing on July 27, 1999. (Dkt # 20.) On May 21, 1999, the Court of Appeals affirmed Petitioner's conviction. (Dkt # 19.) On September 29, 1999, the Michigan Supreme Court denied Petitioner's delayed application for leave to appeal. (Dkt # 21.) Petitioner filed his petition in this Court on July 14, 2000.
People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
Discussion
The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1849 (2002). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001), cert. denied, 122 S.Ct. 2372 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. This Court also may not consider decisions of lower federal courts in determining whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001). Thus, the inquiry is "limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time [the petitioner's] conviction became final." Onifer v. Tyszkiewicz, 255 F.3d 315, 318 (6th Cir.),cert. denied, 122 S.Ct. 292 (2001).
A decision of the state court may only be overturned if (1) it applies a rule that contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent but unreasonably applies it to the fact of the case; or (4) it either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citingWilliams, 529 U.S. at 413); see also Bell, 122 S.Ct. at 1850.
A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411; accord Bell, 122 S.Ct. at 1852. Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Williams, 529 U.S. at 410.
Where the state court has not articulated its reasoning, the federal courts are obligated to conduct an independent review to determine if the state court's result is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. See Harris, 212 F.3d at 943. The review is not de novo. Onifer, 255 F.3d at 316. The review remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. Harris, 212 F.3d at 943.
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n. 4 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). Applying the foregoing standards under the AEDPA, I find that petitioner is not entitled to relief.
I. Due Process — Trial More Than 180 Days: Ground 1
Petitioner first claims that his due process rights were violated by virtue of the fact that he was not brought to trial within 180 days, as required by Mich. Comp. Laws § 780.131(2). Petitioner contends that the 1989 amendment to Mich. Comp. Laws § 780.131(2), which excluded application of the provision to criminal offenses committed by prison inmates, is unconstitutional. The Michigan Court of Appeals held that the 180-day rule had not been violated as a matter of fact, and it therefore declined to reach the issue of the statute's constitutionality.
The court may entertain an application for habeas relief on behalf of a person in custody pursuant to the judgment of a State court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The federal courts have no power to intervene on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). It is not the province of a federal habeas court to reexamine state-law determinations on state-law questions. Estelle v. McGuire, 502 U.S. 62, 68 (1991). The Sixth Circuit has declared that "[f]or excellent reasons, claims that a state erred in interpreting or applying its own criminal law or procedural rules are almost always rejected as grounds for granting the writ of habeas corpus." Wilson v. Mitchell, 250 F.3d 388, 396 (6th Cir. 2001) (citation omitted).
Here, the Michigan Court of Appeals, interpreting a Michigan statute, has concluded that no violation of the 180-day rule occurred. This Court has no jurisdiction to re-examine that decision. As a result, regardless of the constitutionality of the statute's amendment to exclude prison inmates from the rule, Petitioner has received no constitutional injury from that amendment.
II. Due Process — Constitutionality of Statute: Ground 2
Petitioner next argues that Michigan's gross indecency statute is constitutionally void for vagueness and that consensual sexual intercourse between husband and wife cannot violate the gross indecency statute. Petitioner therefore contends that the Michigan Court of Appeals erred in reversing the trial court's order quashing the indictment. The Court of Appeals declined to address the issue because, although Petitioner stated the issue in his brief, he failed to argue the merits or support the position with authority. As a consequence, the court held that under established Michigan case law the claim was not properly presented for review.
To the extent Petitioner argues that consensual sexual intercourse between husband and wife does not fall within the proscription of the gross indecency statute, he raises a question solely of state law. As I previously noted, it is not the province of a federal habeas court to reexamine state-law determinations on state-law questions. Estelle, 502 U.S. at 68. As a result, this Court is without authority to re-examine the state court's determination that the sexual conduct at issue in the instant case was within the proscription of the gross indecency statute.
Petitioner's remaining argument that the gross indecency statute is void for vagueness is barred by procedural default. When a state-law default prevents further state consideration of a federal issue, the federal courts are ordinarily precluded from considering that issue on habeas corpus review. See Ylst v. Nunemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). The Sixth Circuit applies a four-part test to determine whether a claim is procedurally defaulted: (1) the court must first determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule; (2) the court must decide whether the state courts actually enforced the state procedural rule; (3) the default must be an "independent and adequate" state ground on which the state can rely to foreclose review of a federal constitutional claim; and (4) if the foregoing are met, the petitioner must demonstrate cause for his failure to follow the rule and that he was actually prejudiced by the alleged constitutional error. Buell v. Mitchell, 274 F.3d 337, 348(6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Patterson v. Haskins, No. 00-4373, 2003 FED App. 0020P (6th Cir. Jan. 15, 2003). There may be an "exceptional case in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 534 U.S. 362, 382 (2002). A petitioner may also excuse a default by making a colorable claim of innocence; that is, he has shown that any constitutional error "probably" resulted in the conviction of one who was actually innocent. Schlup v. Delo, 513 U.S. 298, 322 (1995) (citing Murray v. Carrier, 477 U.S. 478, 495 (1986)). This exception is reserved for a very narrow class of cases, based on a claim of "new reliable evidence". Schulp, 513 U.S. at 315, 324.
The doctrine of procedural default is applicable where a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." See Maupin v. Smith, 785 F.2d 135 138 (6th Cir. 1986). To determine whether petitioner has been denied relief based on a procedural default, we look to the last "reasoned judgment rejecting the [federal] claim." Ylst, 501 U.S. at 803. The doctrine is applicable if "the last state court to review [the prisoner's] conviction `clearly and expressly' relied on [the prisoner's] procedural default in its decision affirming petitioner's conviction."Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994).
A state-law procedural rule is adequate and independent when it was "firmly established and regularly followed" at the time of the asserted procedural default. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). As the Michigan Supreme Court reiterated inWilson v. Taylor, 457 Mich. at 242 n. 13 14, 577 N.W.2d 100, 104 (1998), Michigan has long required parties to support an issue with authority in order to bring the issue before an appellate court. Id. (citing Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959) (it is not enough for a party "simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments and then search for authority either to sustain or reject his position.")); Arrand v. Graham, 297 Mich. 559, 298 N.W. 281 (1941)). The rule has been regularly applied since. See, e.g., Wilson, 457 Mich. at 242 n. 14; Gross v. General Motors, 448 Mich. 147, 162, 528 N.W.2d 707, 714 n. 8 (1995); Goolsby v. City of Detroit, 419 Mich. 651, 655 n., 358 N.W.2d 856, 859 n. 1 (1984); People v. Kelly, 231 Mich. App. 627, 641, 588 N.W.2d 480, 488 (1998); Winiemko v. Valent, 203 Mich. App. 411, 415, 513 N.W.2d 181, 183 (1994). The state rule therefore was firmly established and regularly followed in 1997, the time of the appeal filed in the instant case. In addition, the Michigan Court of Appeals squarely relied upon the procedural rule in declining to reach Petitioner's claim of error.
When a petitioner has procedurally defaulted in the state courts, the federal habeas court will only entertain the defaulted issue if the petitioner can show "cause" for the procedural default and "actual prejudice" as result of the alleged federal violation or can show actual innocence.Coleman, 501 U.S. at 750; Murray, 477 U.S. at 485; Lucas v. O'Dea, 169 F.3d 1028, 1033 (6th Cir. 1999); Rust, 17 F.3d at 160-61. To show cause sufficient to excuse a failure to raise claims on direct appeal, petitioner must point to "some objective factor external to the defense" that prevented him from raising the issue in his first appeal. Murray, 477 U.S. at 488; see McCleskey v. Zant 499 U.S. 467, 497 (1991). Petitioner has not attempted to explain his failure to raise the issue in his direct appeal to the Michigan Court of Appeals. Where a petitioner fails to show cause, the court need not consider whether he has established prejudice. See Engle, 456 U.S. at 134 n. 43; Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir.), cert. denied, 474 U.S. 831 (1985). Further, Petitioner has failed to make any showing of actual innocence. Accordingly, I conclude that Petitioner's claim that Michigan's gross indecency statute is unconstitutional is procedurally barred.
III. Insufficient Evidence: Ground 3
Petitioner next argues that insufficient evidence was introduced to support his conviction for gross indecency. He also argues that the prosecutor withheld exculpatory evidence, namely a videotape of the visitor's room on the day of the incident. He further asserts that the Michigan Department of Corrections improperly denied Petitioner's contemporaneous demand for a DNA analysis.
Petitioner raised all three sub-questions to the Michigan Court of Appeals. The court rejected them on the merits. The court held that Grow's testimony supplied ample direct and circumstantial evidence to support the claim, despite the fact that Grow did not actually witness sexual penetration.
A § 2254 challenge to the sufficiency of the evidence is governed by the standards set forth by the Supreme Court inJackson v. Virginia, 443 U.S. 307, 319 (1979), which 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." Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-402 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n. 16; Alien v. Redman., 858 F.2d 194, 1196-97 (6th Cir. 1988).
Under § 2254(d)(1), the question of whether sufficient evidence was presented to support the conviction is not considered de novo. Instead, the question is whether the state court's conclusion that sufficient evidence exists amounts to an unreasonable application of the test to the facts of the case.See Gomez v. Acevedo, 106 F.3d 192, 197-98 (7th Cir.),vacated on other grounds, 522 U.S. 801 (1997); Brazzell v. Warden, No. 98-1757, 1999 WL 1204795, **6 (6th Cir. 1999) (citing Gomez).
In this case, in its 1997 decision reversing the quashing of the indictment, the Michigan Court of Appeals determined that gross indecency under the Michigan statute could be established by evidence of heterosexual intercourse committed in a public place. See People v. Jones, 222 Mich. App. 595, 563 N.W.2d 719 (1997). Petitioner does not and did not challenge on direct appeal that the instructions given by the trial court accurately reflected the holding in Jones, 222 Mich. App. 595. The instructions presented the elements of the offense as follows:
First, that the defendant voluntarily committed sexual intercourse with another person. Consent of the other person is not a defense. It does not matter whether the sexual act is completed or whether semen is ejaculated; Second, that the sexual intercourse was committed in a public place. A public place is a place in which it was reasonably foreseeable that the conduct would be observed by members of the public.
(TT 267.) The record evidence amply supported the stated elements of the offense beyond a reasonable doubt. As a result, the state court's decision that sufficient evidence supported the verdict was not an unreasonable application of Supreme Court precedent.
Similarly, Petitioner's remaining claims related to the sufficiency of the evidence are equally without merit. The Michigan Court of Appeals held as follows:
Defendant also alleges that the prosecutor withheld exculpatory evidence, namely, a videotape of the visitors room made on the day of the incident. Defendant further complains that his request for DNA analysis was denied. We find no error requiring reversal. Grow testified that it was his understanding that the area of the visiting room that defendant was occupying at the time of the incident was not captured on the videotape. Defendant has presented no contradictory evidence. Furthermore, defendant does not explain how DNA analysis would have benefited him.
(MCOA at 3.) To establish a violation of Brady, the petitioner has the burden of establishing that the prosecutor suppressed evidence, that such evidence was favorable to the defense, and that the suppressed evidence was material. See Moore v. Illinois, 408 U.S. 786, 794-95 (1972) The inquiry is objective, independent of the intent of the prosecutors. See Brady, 373 U.S. at 87. The Brady rule encompasses both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). The Sixth Circuit has recognized that "Brady is concerned only with cases in which the government possesses information which the defendant does not." See Mullins, 22 F.3d at 1371. Further, there is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question, or if the information was available to him from another source.See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991). Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000).
Favorable evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682. A reasonable probability is one that is "sufficient to undermine confidence in the outcome" of the trial. Id. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence le received a lair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Here, Petitioner has introduced no evidence that any videotape of the visitors room exists or ever existed. At trial, Grow testified that no such tape existed. He noted that one of the two video cameras in the visitor's room was a fake, and that it had never recorded tapes. The other camera was in the corner and focused on another couple. (TT 170.) Nothing in the record or in Petitioner's pleadings in this Court suggests any reason for believing that Grow's testimony under oath was false.
Allegations of Brady violations are mixed questions of law and fact, accordingly, we review the claim under that standard.See Carter, 218 F.3d at 591; Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001). The state court's ruling did not involve an unreasonable interpretation of the facts or an unreasonable application of clearly established Supreme Court precedent. Thus, Jone's Brady argument fails to provide a viable basis for federal habeas corpus relief.
Finally, Petitioner's argument that the MDOC impermissibly denied DNA testing is baseless. As the Michigan Court of Appeals noted, Petitioner has failed to explain how the DNA analysis could have helped him. (MCOA Op. at 3.) Inasmuch as ejaculation was not an element of the offense, the test was incapable of producing exculpatory evidence. The state-court determination clearly was reasonable.
4. Ineffective Assistance of Counsel: Ground IV
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To obtain habeas relief, the petitioner must prove (1) that counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. 466 U.S. at 687-88; see Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). In adjudicating the first prong of the standard, the Court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. 466 U.S. at 690. The Court should recognize that counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. The Sixth Amendment is violated only if counsel's acts or omissions "were outside the wide range of professionally competent assistance."Id.
Here, Petitioner contends that counsel was ineffective because he failed to secure certain witnesses who were present in the visiting room at the time of the incident, and because he failed to secure the videotape of the visiting room. As discussed in Petitioner's preceding claim, no evidence exists that any videotape exists of the incident for which Petitioner was prosecuted. The failure of trial counsel to raise futile or erroneous claims or to perform futile tasks is not ineffective assistance of counsel. McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). Moreover, as the state court held, Petitioner has failed to identify any witnesses counsel could or should have called whose evidence would have been favorable to Petitioner. Petitioner therefore has demonstrated neither deficient performance by his attorney nor a reasonable probability that the outcome of the proceedings would have been different. The state court's rejection of Petitioner's claim clearly was objectively reasonable.
5. Double Jeopardy: Ground V
Petitioner's final argument is that his conviction and sentence under the gross indecency statute violated double jeopardy because Petitioner already had been punished following a prison administrative hearing. The Michigan Court of Appeals held that administrative punishment by the Michigan Department of Corrections does not bar a criminal conviction of a defendant arising out of the same act. In reaching its decision, the Court of Appeals relied upon United States v. Galan, 82 F.3d 639 (5th Cir. 1996), in which the Fifth Circuit rejected Petitioner's argument that prison disciplinary proceedings bar subsequent criminal prosecution for the underlying offense.
The Fifth Amendment states in part that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause protects individuals against three distinct violations: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). Petitioner's argument rests principally on the third prong.
The Supreme Court has "long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in the common parlance, be described as punishment." Hudson v. United States, 522 U.S. 93, 98-99 (1997) (internal quotations omitted). The Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such multiple punishments occur in successive proceedings. Id. (citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49 (1943) ("Only" "criminal punishment" "subject[s] the defendant to `jeopardy' within the constitutional meaning");Breed v. Jones, 421 U.S. 519, 528 (1975) ("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution");Missouri v. Hunter, 459 U.S. 359, 366 (1983)). Under this traditional analysis, courts first must determine whether the sanction in issue is criminal or civil. Id.
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Hudson, 522 U.S. at 99 (citing Helvering v. Mitchell, 303 U.S. 391, 399 (1938)). A court must first ask whether the legislature, in establishing the penalty, indicated whether it was civil or criminal. Id. In those cases where the legislature "has indicated an intention to establish a civil penalty," the Supreme Court has inquired further "whether the statutory scheme was so punitive either in purpose or effect," id., at 248-249 (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)), as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," id. (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956)).
However, in United States v. Haler, 490 U.S. 435, 448-50 (1989), the Supreme Court departed somewhat from its traditional analysis of double jeopardy concerns in concluding that imposition of a civil penalty may in certain limited circumstances bar prosecution for a criminal offense. Relying onHalper, numerous prisoners sought to overturn criminal convictions in circumstances in which they already had been subjected to prison disciplinary action or other civil penalty. However, since Halper, the Supreme Court has declined to find other civil penalties to bar subsequent criminal prosecutions, despite the fact that those penalties had some deterrent effect.See Hudson, 522 U.S. 93; United States v. Ursery, 518 US. 267 (1996); Department of Internal Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994). In Hudson, 522 U.S. at 101-102, while not overruling Halper, the Court observed that the decision was "ill considered." Id at 101. The Court noted that the analysis applied in Harper deviated from traditional double jeopardy analysis in two key respects:
First, the decision bypassed the threshold question of whether the punishment at issue is a "criminal" punishment. Instead, it focused on whether the sanction was "so grossly disproportionate to the harm caused as to constitute "punishment." Id. al 01. Second, the Halper decision considered the character of the actual sanctions imposed, rather than evaluating the statute on its face, to determine whether a particular sanction was criminal. Id.Hudson, 522 U.S. at 101. The Hudson Court returned to traditional double jeopardy principles and concluded that the prior administrative imposition of monetary sanctions and occupational disbarment for violation of the federal banking statutes did not bar subsequent criminal prosecutions for essentially the same conduct. Id. at 95-96.
Subsequently, those lower federal courts that have addressed the issue universally have concluded that prison disciplinary proceedings do not bar future criminal prosecutions. United States v. Mayes, 158 F.3d 1215, 1224-25 (11th Cir. 1998);United States v. Galan, 82 F.3d 639 (5th Cir. 1996); United States v. Brown, 59 F.3d 102, 103-05 (9th Cir. 1995); United States v. Hernandez-Fundora, 58 F.3d 802, 806-07 (2nd Cir. 1995); Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994); United States v. Newby, 11 F.3d 1143, 1144-46 (3rd Cir. 1993).
The prison disciplinary process determines whether the defendant has violated the conditions of his incarceration and is designed to maintain institutional security and order. A criminal prosecution is designed to punish the defendant for a violation of criminal laws. "Because the two proceedings serve different ends, the finding that the defendant no longer merits [good time] does not foreclose the criminal justice system from punishing the defendant for that conduct."Garrity, 41 F.3d at 1153 (quoting United States v. Hanahan, 798 F.2d 187, 189-90 (7th Cir. 1986). I see no reason to disagree with the uniform conclusion of other federal courts that have addressed the issue. Accordingly, Petitioner's claim that his conviction violated the Double Jeopardy Clause is without merit.
Moreover, even if the issue had merit, Petitioner would not be entitled to relief in this habeas proceeding. Under the AEDPA, this Court may overturn a state court adjudication only if that adjudication "(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. . . ." 28 U.S.C. § 2254(d). The Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams, 529 U.S. at 412; Bailey, 271 F.3d at 655. Established Supreme Court precedent does not clearly bar subsequent criminal prosecution following the imposition of prison administrative penalties. As a consequence, the state-court determination was not contrary to or an unreasonable application of clearly established Supreme Court precedent.
Recommended Disposition
For the foregoing reasons, I respectfully recommend that the habeas corpus petition be denied.
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. Civ. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Am, 474 U.S. 140 (1985).