Opinion
CASE NO. 99-CV-74049-DT
September 29, 2000
MEMORANDUM OPINION AND ORDER
I. Introduction
Before the Court is petitioner Juan Lee Jordan's pro se habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner is an inmate at Ryan Correctional Facility in Detroit, Michigan.
In 1995, a circuit court jury in Ingham County, Michigan convicted Petitioner of: (1) armed robbery, MICH. COMP. LAWS ANN. § 750.529; MICH. STAT. ANN. § 28.797; (2) two counts of possession of a firearm during the commission of a felony, MICH. COMP. LAWS ANN. § 750.227b; MICH. STAT. ANN. § 28.424 (2); and (3) felonious assault, MICH. COMP. LAWS ANN. § 750.82; MICH. STAT. ANN. § 28.277. Petitioner subsequently pleaded guilty to being a felon in possession of a weapon, MICH. COMP. LAWS ANN. § 750.224f; MICH. STAT. ANN. § 28.421 (6). The convictions arose from
an armed robbery that occurred at a Taco Bell restaurant in the City of Lansing on November 21, 1994 at approximately 6:45 p.m. Several witnesses identified defendant as the gunman. Moreover, defendant's accomplice, Joel Torres, testified that he and defendant were involved in the armed robbery and Torres also identified defendant as the man who shot the gun during the robbery. Defendant maintained that he was not present and that he was not a participant in the robbery. In this regard, defendant produced alibi witnesses at trial.People v. Jordan, No. 192284, at 1 (Mich.Ct.App. Oct. 28, 1997).
The trial court sentenced Petitioner to two concurrent terms of two years in prison for the felony firearm convictions. This sentence was expected to be followed by concurrent terms of fifteen to forty years for the armed robbery conviction, thirty-two to forty-eight months for the felonious assault conviction, and forty to sixty months for the conviction of felon in possession of a weapon. The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished, per curiam opinion, see id., and the Michigan Supreme Court denied leave to appeal, see People v. Jordan, No. 110925 (Mich.Sup.Ct. Aug.28, 1998).
On August 27, 1999, Petitioner filed his habeas corpus petition, alleging the following seven grounds for relief:
1. DEFENDANT WAS DENIED DUE PROCESS OF LAW BY THE TRIAL COURT'S FAILURE TO ORDER THE PRODUCTION OF RES GESTAE WITNESS REQUESTED BY THE DEFENDANT.
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DENIED DEFENDANT A FAIR TRIAL BY ALLOWING THE PROSECUTOR PERMISSION TO IMPEACH A CRUCIAL DEFENSE WITNESS WITH A 1986 ARMED ROBBERY.
3. DEFENDANT WAS DENIED HIS RIGHT OF CROSS EXAMINATION WHEN HE WAS NOT ALLOWED TO ASK AN ALLEGED ACCOMPLICE HOW MUCH PRISON TIME HE WAS AVOIDING BY HIS AGREEMENT WITH THE PROSECUTOR IN EXCHANGE FOR HIS TESTIMONY.
4. THE PROSECUTOR DENIED DEFENDANT A FAIR TRIAL AND SHIFTED THE BURDEN OF PROOF BY ARGUING THAT HIS ALIBI WITNESSES HAD THE DUTY TO GO TO POLICE WITH MR. JORDAN'S DEFENSE, AND BY ARGUING THAT TIIE ALIBI WITNESS'S JOURNAL HAD CONVENIENTLY DISAPPEARED.
5. DEFENDANT WAS DENIED A FAIR TRIAL WHEN A PROSECUTION WITNESS TESTIFIED THAT HE ASKED THE POLICE OFFICER IF HE COULD TAKE THE FIFTH AMENDMENT.
6. THE TRIAL COURT AND THE PROSECUTOR DENIED DEFENDANT A FAIR TRIAL BY REFERRING REPEATEDLY TO THE O. J. SIMPSON TRIAL, WHICH WAS HIGHLY PREJUDICIAL WHERE DEFENDANT JORDAN IS BLACK AND HIS JURY WAS ALL WHITE.
7. DEFENDANT WAS DENIED A FAIR TRIAL BY THE FALSE AND UNPROVABLE SUGGESTION THAT THERE HAD BEEN THREATS AGAINST THE WITNESSES WHO TESTIFIED AGAINST DEFENDANT.
Respondent urges the Court to deny the habeas petition on the grounds that Petitioner's claims are barred by his procedural default, are non-cognizable state claims, and present factually incorrect information.
II. Discussion
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA altered the standard of review that federal courts must consider when deciding whether to grant habeas corpus petitions brought under 28 U.S.C. § 2254. Felker v. Turpin, 518 U.S. 651, 654 (1996). The altered standard of review "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000). Federal court.s may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim on the merits —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523.
B. Petitioner's First. Fifth. Sixth, and Seventh Claims
Petitioner's first claim is that he was denied his constitutional rights when the trial court failed to order the production of certain res gestae witnesses that defense counsel wanted to subpoena. See T at 324. Petitioner alleges that, to the extent his attorney did not pursue the matter when the witnesses were not produced, he was deprived of the right to effective assistance of counsel.
"T" refers to the transcript of trial, which consists of four volumes consecutively paginated.
Petitioner's fifth claim is that he was deprived of a fair trial when a prosecution witness testified that he asked a police officer if he could take the Fifth Amendment. Petitioner contends that the prosecutor invited, or at least could have foreseen, the witness's response and thereby deprived him of his right of cross-examination.
Petitioner's sixth claim is that he was denied a fair trial when the trial court and the prosecutor referred to O. J. Simpson's criminal trial. Petitioner alleges that the comments were highly prejudicial because he is black and his jury was all white. Petitioner's seventh and final claim is that he was denied a fair trial by the prosecutor's unsubstantiated suggestion that he had threatened witnesses who testified against him.
1. Procedural Default
Respondent argues that these claims (one, five, six, and seven) are barred by Petitioner's procedural default. The doctrine of procedural default provides that:
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). When analyzing a procedurally defaulted claim, a federal habeas court must consider:
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000), petiiion for cert. filed (U.S. Aug. 7, 2000) (No. 00-228).
2. The State Procedural Rule
The state procedural rule in question here is the issue preservation rule. Specifically, a criminal defendant must present a claim to the trial court for consideration in order to preserve the claim for appellate review. See. e.g., People v. Grant, 445 Mich. 535, 546 (1994) (acknowledging the general rule that issues not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances); People v. Ullah, 216 Mich. App. 669, 679 (1996) (stating that "[a]ppellate review of improper prosecutorial remarks is generally precluded absent an objection because it deprives the trial court of an opportunity to cure the error"). Petitioner violated the preservation rule by failing to make a contemporaneous objection to (1) the trial court's failure to order the production of res gestae witnesses, (2) a prosecution witness's comment that he asked the police if he could take the Fifth Amendment, (3) the trial court's and prosecutor's reference to O. J. Simpson's trial, and (4) the prosecutor's suggestion that Petitioner had threatened witnesses. 3. Enforcement of the Rule
See T at 324. Defense counsel asked for permission to subpoena four witnesses, but he did not object later in the trial when three of the four witnesses never testified.
See T at 340. Defense counsel sought clarification of the witness's testimony, but he did not object to the reference to the Fifth Amendment.
See T at 18 and 600.
See T at 240-41 (Helen Taylor's testimony) and 317-18 (Joel Torres's testimony, to which defense counsel did object, but only on the ground that what Torres said he had heard was hearsay).
The Michigan Court of Appeals was the last state court to render a reasoned judgment on Petitioner's claims. It enforced the preservation rule by stating in its opinion that Petitioner had failed to preserve his claims for appellate review by objecting at trial. See Jordan, No. 192284, at 2, 8, and 9. The state appellate court's alternative analyses do not preclude this Court from concluding that Petitioner's claims are procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989).
4. Adequate and Independent State Ground
The preservation rule was firmly established and regularly followed before Petitioner's 1995 trial. See Grant, 445 Mich. at 546. Therefore, the state court's reliance on Petitioner's failure to make timely objections was an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); see Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding).
5. Cause and Prejudice: Miscarriage of Justice
Petitioner has not alleged "cause and prejudice." He did argue in state court that his trial attorney was ineffective for failing to re-request the attendance of missing witnesses. However, Petitioner's ineffective-assistance-of-counsel claim also is procedurally defaulted, and he has not shown cause and prejudice or a miscarriage of justice for that procedural default. Therefore, ineffective assistance of trial counsel cannot serve as "cause" for Petitioner's other procedural defaults. Edwards v. Carpenter, ___ U.S. ___, ___, 120 S.Ct. 1587, 1591 (2000); Seymour v. Walker, __ F.3d ___, ___, No. 98-4316, 2000 WL 1154017, at *3 (6th Cir. August 16, 2000).
The Michigan Court of Appeals noted that Petitioner's ineffective-assistance-of-counsel claim was neither properly presented, nor preserved. See Jordan, No. 192284, at 3.
The only remaining question is whether this Court's failure to consider Petitioner's defaulted claims on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986). The record does not convince the Court that Petitioner is "actually innocent," and Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented at trial. Therefore, a miscarriage of justice will not occur if the Court declines to review Petitioner's defaulted claims on the merits, Schlup, 513 U.S. at 324, and his state procedural defaults bar habeas review of his first, fifth, sixth, and seventh claims.
C. Impeaching a Defense Witness with a Prior Conviction
Petitioner's second claim is that the trial court deprived him of a fair trial when the court authorized the prosecutor to impeach one of Petitioner's proposed alibi witnesses, Tony Powell, with a prior conviction. Petitioner asserts that Powell's testimony would have supported his alibi defense and that he chose not to produce Powell as a result of the trial court's ruling. The Michigan Court of Appeals concluded on review of Petitioner's claim that the trial court did not abuse its discretion when permitting impeachment of Powell with a prior conviction.
1. The Law
Petitioner had a constitutional right to a fair trial. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). However,
`[e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding.' Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they `offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (quoting Patterson v. New York, 543 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed2d 281 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).Seymour, 2000 WL 1154017, at *5.
In Michigan a witness's credibility may be impeached with evidence of prior convictions, see MICH. COMP. LAWS ANN. § 600.2159; MICH. STAT. ANN. § 27A.2159, provided that the convictions satisfy the criteria of M.R.E. 609. Rule 609 provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and
. . . .
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
(b) Determining probative value and prejudicial effect. For purposes of the probative value determination required by subrule (a)(2)(B), the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. If a determination of prejudicial effect is required, the court shall consider only the conviction's similarity to the charged offense and the possible effects on the decisional process if admitting the evidence causes the defendant not to testify. . . .
(c) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, which ever is the later date.2. Application of the Law
Tony Powell was convicted of armed robbery, which contains an element of theft and is punishable by imprisonment for more than one year. See MICH. COMP. LAWS ANN. § 750.529; MICH. STAT. ANN. § 28.797. The conviction occurred on January 23, 1986, but Powell was discharged on parole on March 30, 1994. See T at 529. The Michigan Court of Appeals opined that, although armed robbery has a lower probative value on the issue of credibility than other theft crimes do, the recentness of the conviction and the witness's parole status heightened the probative value of the evidence. Furthermore, because Petitioner's decision whether to testify was not at stake, the trial court was not required to determine if the probative value of the evidence outweighed its prejudicial effect. See M.R.E. 609(a)(2)(B).
Under the circumstances, including the fact that Petitioner presented three other alibi witnesses at trial, the trial court's evidentiary ruling did not violate Petitioner's right to due process and a fair trial. Accordingly, the state appellate court's decision upholding the evidentiary ruling was not an unreasonable application of clearly established federal law as determined by the Supreme Court.
D. The Right of Confrontation
Defense counsel tried to elicit from alleged accomplice Joel Torres exactly how many years he was able to avoid serving in prison by pleading guilty and testifying against Petitioner. The trial court then cautioned defense counsel that penalty is not a question for the jury. See T at 377-78. Petitioner's third claim is that the restriction on his questioning of Torres deprived him of his constitutional right of cross examination.
The Sixth Amendment to the United States Constitution, which applies to state court proceedings, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides an accused with the right to be confronted with the witnesses against him, Olden v. Kentucky, 488 U.S. 227, 231 (1988). The right of confrontation includes the right to conduct cross-examination. Id; Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Generally, however, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).
No violation of the Confrontation Clause occurred here. As the Michigan Court of Appeals explained,
the issue of the accomplice's plea bargain, the crime to which he pleaded guilty, the extent of the bargain, and the exact sentence received were all placed squarely before the jury. Moreover, in response to defense counsel's question that he avoided prison for a significant number of years as a result of the plea bargain, Torres admitted that he avoided going to prison as a result of the plea bargain, but stated that he did not know how many years he actually avoided.Jordan, No 192284, at 5.
The Michigan Court of Appeals concluded that the trial court did not place any unreasonable limit on Petitioner's right to cross-examine. This Court agrees and concludes that the state court's decision was a reasonable application of Supreme Court decisions on the Sixth Amendment right to confront witnesses. Petitioner, therefore, has no right to habeas relief on the basis of his third claim.
E. Shifting the Burden of Proof
Petitioner's fourth claim is that the prosecutor improperly shifted the burden of proof by (1) asking two alibi witnesses whether they informed the police that Petitioner was at home during the Taco Bell robbery, and (2) arguing that one alibi witness's journal had conveniently disappeared. The Due Process Clause protects criminal defendants against conviction except on the prosecution's "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, to prevail on a claim of prosecutorial misconduct, Petitioner
must show that the prosecutor's conduct was `so fundamentally unfair as to deny [him] due process.' Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999) (quoting Donnell v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In determining whether [Petitioner's] due process rights were violated, this court looks at the totality of the circumstances, including
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.
Seymour, 2000 WL 1154017, at * 12.
1. Asking Alibi Witnesses Whether They Contacted the Police
On cross-examination of two alibi witnesses, the prosecutor asked the witnesses whether they had contacted the police or the prosecutor's office to explain that Petitioner was innocent. See T at 565-67 (Alberta Jordan) and 588-90 (Sara Jester). Although Petitioner claims that these questions shifted the burden of proof, the questions obviously were attempts to discredit the witnesses' testimony and Petitioner's defense. The prosecutor was not asking Petitioner to prove his alibi defense.
Moreover, the questions were not per se improper under state law. See People v. Phillips, 217 Mich. App. 489, 492-96 (1996) (concluding that the prosecutor is not required to lay any particular foundation before questioning a witness about the failure to come forward before trial); People v. Fuqua, 146 Mich. App. 250, 254-55 (1985) (concluding that questioning and argument concerning the failure of a defense alibi witness to come forward and tell his or her story to the police before trial is permissible, provided that there is "some showing, on the record, as to why it would have been natural for the alibi witness to relate his story to the police"). The prosecutor's questions likely did not have a tendency to mislead the jury and did not prejudice Petitioner because one witness explained that she was unfamiliar with the legal system and did not know that she should contact the police. She asserted that she did her best to let Petitioner's court-appointed attorney and others know what she knew. See T at 566-67 (Alberta Jordan's testimony).
Although the questioning was deliberately placed before the jury, the evidence against Petitioner was substantial. Three Taco Bell employees identified Petitioner at trial as the robber, and Joel Torres testified that he and Petitioner planned and executed the robbery. See Id. at 105 (Pamela Taylor's testimony), 158 177 (Shawn McCracken's testimony), 236 (Helen Taylor's testimony), 287-320 and 354-87 (Joel Torres' testimony). Jimmy Blake testified that Petitioner and Joel Torres asked him to drive them to a certain neighborhood. About five minutes after Petitioner and Torres got out of the car, Blake heard gunshots. Shortly afterwards, Petitioner and Torres returned to the car. Petitioner had a gun and a Taco Bell bag. See id. at 493-509.
In light of the evidence against Petitioner and Alberta Jordan's satisfactory explanation, this Court is unable to say that the prosecutor's questioning of the alibi witnesses prejudiced Petitioner. Therefore, the state court's holding — that the prosecutor did not deprive Petitioner of a fair trial — was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.
2. The Missing Journal
Sara Jester testified that she and Tony Powell were present with Petitioner at his home during the time of the robbery. She claimed to recall the date because she recorded the incident in her journal, which she subsequently lost. See id. at 573-79. The journal entry was not produced at trial, and during closing arguments, the prosecutor stated that Sara Jester's journal had "conveniently disappeared." See id. at 607.
The Court of Appeals did not agree with Petitioner's characterization of the prosecutor's comment as shifting the burden of proof. In its opinion, "the prosecutor was arguing the evidence and reasonable inferences from the evidence as it related to her theory of the case." Jordan, No. 192284, at 6. This Court agrees, and because prosecutors may comment on the defense's evidence, Seymour, 2000 WL 1154017 at * 13, Petitioner cannot show that the state court's decision was contrary to or an unreasonable application of Supreme Court precedent.
III. Conclusion
The Court concludes for the reasons given above that Petitioner's claims lack merit or are procedurally defaulted. Accordingly, the Court DENIES the habeas corpus petition.