Opinion
Case Number: 97-75531
May 11, 2000
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Kenneth Charles Lester, a state inmate currently incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
II. Facts
Petitioner's conviction arises out of the armed robbery of the Woodland Oil Total Station in Manton, Michigan on March 9, 1986. On that date, a man, wearing sunglasses and a blue sweatshirt with the hood pulled down over his face, entered the gas station and pointed a gun at the gas station employee, Scott Weston. The man ordered Weston to place all of the money in a couple of bank bags. The man then left the gas station with a total of approximately $800.
Shortly thereafter, Petitioner's friend, Jerry Cissne, informed the police that Petitioner had committed the robbery. Pursuant to a search warrant, Cissne was then fitted with a wireless transmitter and taken to visit Petitioner who was hospitalized for a stab wound received in an unrelated incident. During this visit, Petitioner made several incriminating remarks to Cissne. First, Petitioner stated that he had wiped the bank bags clean of fingerprints and then disposed of them on the highway. He also stated that he had hidden the gun he had used in the robbery at his grandmother's house and that he needed to discard the clothing he had been wearing during the robbery. A police search of Petitioner's grandmother's house yielded only a blue sweatshirt, a gun was not found.
Petitioner was found guilty of armed robbery and felony firearm.
III. Procedural History
On October 2, 1986, following a jury trial in Wexford County Circuit Court, Petitioner was convicted of armed robbery and felony firearm. Petitioner appealed his conviction to the Michigan Court of Appeals, which reversed the conviction on the following grounds: (1) the trial court erred in admitting evidence of prior armed robbery convictions to impeach defendant; (2) the trial court erred in admitting references to prior bad acts in a taped conversation between Petitioner and Cissne; and (3) the trial court erred in allowing the jury to read a transcript of the taped conversation between Petitioner and Cissne as they listened to the tape when the parties did not stipulate to the accuracy of the transcript and the court made no effort to otherwise ensure its accuracy. People v. Lester, No. 99072 (Mich.Ct.App. Nov. 8, 1988). The Michigan Court of Appeals remanded the case for a new trial. Id.
On retrial in Wexford County Circuit Court, Petitioner was again convicted by a jury of armed robbery and felony firearm. Petitioner was sentenced to twenty-five to fifty years imprisonment for the armed robbery conviction to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction.
Petitioner then filed an appeal in the Michigan Court of Appeals, presenting the following claims:
I. Did the state violate both its duty to disclose inculpatory evidence and to investigate with due diligence resulting in the denial of a fair trial to defendant?
II. Was defendant denied a fair trial by repeated instances of prosecutorial misconduct?
III. Did the trial court err reversibly in ruling that Mr. Lester's statements to a police agent were voluntary, and thus the use of these statements at trial denied Mr. Lester his state and federal constitutional right of due process of law?
IV. Was defendant denied the effective assistance of counsel where, contrary to his opening statement, he failed to put an alibi witness on the stand, or argue an alibi defense in his closing argument despite the testimony of witnesses at trial, thereby effectively denying defendant that defense?
V. Did the trial court err when it allowed a misleading version of defendant's confession to be considered by the jury?
VI. Was the sentence imposed disproportionate to both the defendant and the crime committed?
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Lester, No. 119540 (Mich.Ct.App. July 7, 1995).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the claims presented to the Michigan Court of Appeals and the following additional claim:
I. The defendant was denied a fair trial and due process of law, in that court appointed counsel refused to allow defendant's right to compel witnesses in his behalf U.S.C.A. Const. Amend. VI: Mich. Const. 963, Art. I, § 20, which denied defendant a fair trial and effective assistance of counsel.
The Michigan Supreme Court denied leave to appeal. People v. Lester, No. 103740 (Mich. March 13, 1996).
Petitioner then filed the pending habeas corpus petition, presenting the following claims:
I. Petitioner was denied a fair trial by repeated instances of prosecutorial misconduct.
II. The trial court reversibly erred in ruling that Mr. Lester's statements to a police agent were voluntary, and thus the use of those statements at trial denied Mr. Lester his state and federal constitutional right of due process.
III. The court erred when it allowed an altered and misleading version of defendant's alleged confession to be considered by the jury.
IV. The defendant was denied a fair trial and due process of law, in that court appointed counsel "refuses" to compel "witnesses in his behal[f]", and asserted sole defense of "alibi" at trial: thus rendering his conviction unconstitutional.
V. Defendant-appellant was denied the effective assistance of counsel — where contrary to his opening statement, he failed to put an alibi witness to the stand, or argue an alibi defense in his closing argument, despite the testimony of witnesses at trial, thereby effectively denying defendant that defense.
VI. The sentence imposed was disproportionate to both the defendant and the crime committed.IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254 (d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254 (d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law.Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1) ; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
28 U.S.C. § 2254 (e)(1) provides, in pertinent part:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2234(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Alleged Prosecutorial Misconduct
Petitioner alleges that he is entitled to habeas corpus relief because the prosecutor engaged in misconduct. Specifically, Petitioner contends that: (1) the prosecutor improperly implied during closing arguments that Petitioner had attempted to influence Cissne's testimony, (2) the prosecutor argued facts not in evidence; and (3) that the cumulative effect of these errors deprived Petitioner of a fair trial.
"Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances."Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). The Court must examine "`the fairness of the trial, not the culpability of the prosecutor.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997), ( quoting Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Sixth Circuit has identified the factors a court should consider in weighing the extent of prosecutorial misconduct:
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Id. at 964 ( quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)).
The last state court to issue a reasoned opinion on Petitioner's claims of prosecutorial misconduct, the Michigan Court of Appeals, held as follows:
Defendant argues that he was denied a fair trial due to various instances of prosecutorial misconduct. We disagree.
First, defendant argues that the prosecutor committed misconduct by implying during closing arguments that defendant had put pressure on Cissne in an attempt to influence Cissne's trial testimony. We find no error because the prosecutor was free to relate the facts adduced at trial to its theory of the case without stating the reasonable inferences from the evidence in the blandest possible terms. People v. Johnson, 187 Mich. App. 621, 625; 468 N.W.2d 307 (1991). Here, it was reasonable for the prosecutor to infer that defendant may have influenced Cissne's testimony based upon the differences in Cissne's testimony between the two trials, and Cissne's admission that defendant contacted Cissne just prior to trial with instructions on how to testify.
Defendant also alleges that the prosecutor committed misconduct when it argued facts not in evidence. In particular, defendant alleges that it was improper for the prosecutor to argue that the only way that defendant could have known the location of the money bags was if he was the one who put them there. We find no error.
At trial, defendant objected to the prosecutor's argument, stating that the location of the money bags could have been learned through news reports of the robbery. The trial court aptly overruled defendant's objection, finding that no evidence had been introduced to show that the information was available through news reports. We agree with the trial court's decision that the prosecutor's argument was permissible in light of defendant's statement to Cissne disclosing the location of the bags, and the absence of any rebuttal evidence that the location was revealed through news reports. In short, it was permissible for the prosecutor to draw this reasonable inference from the evidence adduced at trial. Johnson, supra at 625.
Petitioner has failed to establish that the Michigan Court of Appeals' decision was an unreasonable application of Supreme Court precedent. First, Petitioner's claim that the prosecutor improperly argued that Petitioner tried to influence Cissne's testimony is meritless. A prosecutor may argue all reasonable inferences that may be drawn from the evidence admitted at trial as they relate to the prosecutor's case. See U.S. v. Francis, 170 F.3d 546, 552 (6th Cir. 1999). In Petitioner's case, it was not an unreasonable inference for the prosecutor to argue that Petitioner attempted to influence Cissne's testimony against him.
Second, Petitioner's claim that the prosecutor improperly argued facts not in evidence is similarly meritless. The prosecutor presented evidence that Petitioner knew the location of the money bags. Petitioner failed to present any evidence that such knowledge could have been obtained through innocent means. Therefore, it was permissible for the prosecutor to argue that Petitioner's knowledge of the bags' location implicated him in the robbery. Accordingly, Petitioner has failed to establish that the Michigan Court of Appeals decision with respect to this claim was contrary to or an unreasonable application of Supreme Court precedent.
Finally, because Petitioner has failed to establish any prosecutorial misconduct, Petitioner's argument that the cumulative effect of the instances of prosecutorial misconduct entitles him to habeas corpus relief is, consequently, meritless.
C. Petitioner's Tape-Recorded Statement
Petitioner claims that he is entitled to habeas corpus relief because his confession to police was involuntary. The confession was obtained by use of an electronic listening device. While Petitioner was hospitalized to receive treatment for stab wounds, his friend, Jerry Cissne, visited him in the hospital. Unbeknownst to Petitioner, Cissne was wearing a wire authorized by a search warrant. Petitioner claims that the conversation with Cissne violated several of his constitutional rights: (1) that the confession was involuntary because Petitioner was under the influence of morphine at the time; (2) that his Fifth Amendment right to be free from self-incrimination was violated because he was not given a Miranda warning; and (3) the search warrant used to obtain authorization for the wired monitoring was unlawful.
With respect to Petitioner's claim that the morphine that he received hours prior to making his statement to Cissne rendered that statement involuntary, the Court holds that the Michigan state courts' holdings rejecting this claim were not an unreasonable application of Supreme Court precedent.
Following a hearing on Petitioner's motion to suppress his confession, the trial court issued an opinion denying the motion:
Defendant's final claim is that because he had been given a pain-killer (morphine) several hours before the conversation, he was unaware of what he was saying to Cissne and that his statement was therefore involuntary. In support of this claim, defendant testified that he did not recall the conversation with Cissne, which testimony the Court did not believe, and the testimony of defendant's attending surgeon, Dr. Glenn Verbrugge, to establish the administration of morphine sulfate and the fact that it may induce a euphoric state. While Dr. Verbrugge did so testify, his only other testimony pertinent to defendant's claim was that a person might say something without realizing it shortly after being given morphine sulfate. Here the statements were made more than two hours after the morphine was given, and defendant's claim is unsupported by the medical evidence.People v. Lester, No. 86-3591 (Wexford County Circuit Court July 23, 1986).
On Petitioner's appeal following his first, and later reversed, conviction, the Michigan Court of Appeals, in a conclusory opinion, held that Petitioner's statement was voluntarily given:
Defendant also claims that the trial court erred in the following ways: . . . it found defendant's taped statements to be voluntary and admissible. . . . As to these issues, we find no error.People v. Lester, No. 99072 (Mich.Ct.App. Nov. 8, 1988).
On appeal from his second trial, Petitioner again presented the claim that his confession was involuntary. The Michigan Court of Appeals held that the court's prior ruling on the issue on Petitioner's previous appeal was binding upon the court as the law of the case. People v. Lester, No. 119540 (Mich.Ct.App. July 7, 1995).
Petitioner failed to present any evidence which would call into question the reasonableness of the state court's finding. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
Second, Petitioner's claim that he is entitled to habeas corpus relief because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) prior to his conversation with Cissne is also meritless. The procedural safeguards imposed by Miranda are designed "to safeguard the uncounseled individual's Fifth Amendment privilege against self-incrimination . . . while in police custody." Thompson v. Keohane, 516 U.S. 99, 107 (1995). Custody is determined by examining whether a reasonable person in the suspect's position would believe that he or she was free to leave. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). See also Standbury v. California, 511 U.S. 318, 323 (1994) ("[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."). Petitioner clearly was not in police custody when he made his incriminating statements to Cissne. U.S. v. Peete, 919 F.2d 1168, 1177 (6th Cir. 1990). The fact that Cissne was wearing a wire did not mean that Petitioner was in police custody so as to trigger the requirement that he receive Miranda warnings. Id. Accordingly, Petitioner was not entitled to receive the Miranda warnings at the time he made his statements to Cissne because he was not in custody.
Finally, Petitioner asserts that he is entitled to habeas corpus relief because his Fourth Amendment rights were violated. He claims that his statements to Cissne should have been suppressed because the search warrant pursuant to which the statements were obtained was invalid. The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Stone v. Powell, 428 U.S. 465, 494-95 (1976).
In the instant case, Petitioner's Fourth Amendment claim was the subject of an evidentiary hearing in the trial court where the facts of his claim were fully developed. Following the hearing, the trial court, applying the appropriate Fourth Amendment standard, held that an adequate basis was provided for the issuance of a warrant. The trial court therefore denied the motion to suppress. People v. Lester, 86-3591 (Wexford County Circuit Court July 23, 1986). Petitioner then had an opportunity to present his Fourth Amendment claim to the Michigan Court of Appeals and Michigan Supreme Court. Thus, Petitioner's Fourth Amendment claim was fully and fairly litigated in the Michigan trial and appellate courts and, consequently, is not cognizable on habeas review.
D. Admission of an Edited Version of Petitioner's Confession
Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in admitting an edited version of his confession to a police informant.
The Michigan Court of Appeals rejected this claim, holding:
[D]efendant argues that the trial court erred when it admitted the edited tape into evidence because the edited version is misleading and focuses only upon the instant criminal transaction. However, defendant should not be heard to complain here because it was defendant who requested that the tape be edited in this manner to remove references to other bad acts.People v. Lester, No. 119540, slip op. at 3.
"The doctrine of `invited error' is a branch of the doctrine of waiver by which courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal consequences of having the ruling set aside." Harvis v. Roadway Express, Inc., 923 F.2d 59, 61 (6th Cir. 1991). When a petitioner invites an error in the trial court, he is precluded from seeking habeas corpus relief for that error. See Leverett v. Spears, 877 F.2d 921, 924 (11th 1989); Draugh v. Jabe, 803 F. Supp. 70, 75 (E.D. Mich. 1992).
In the pending case, Petitioner requested that the audio tape be edited to remove the references to prior bad acts. The tape was edited in accordance with Petitioner's request. Accordingly, under the doctrine of invited error, Petitioner is not entitled to habeas corpus relief with respect to this claim.
E. Ineffective Assistance of Counsel Claim
Petitioner claims that he is entitled to habeas corpus relief because his trial counsel failed to present an alibi defense. Specifically, Petitioner claims that his attorney erred in not alluding to his alibi defense in his closing statement and in not presenting certain witnesses, who, Petitioner asserts, would have substantiated his alibi defense.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal citations omitted).
The Court further explained that, to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), cert. denied 520 U.S. 1257 (1997).
The last state court to render a reasoned response with respect to Petitioner's ineffective assistance of counsel claim, the Michigan Court of Appeals, held as follows:
Defendant argues that he was denied the effective assistance of counsel due to counsel's alleged failure to present an alibi defense. However, the record reflects that defense counsel did in fact attempt to present an alibi defense. The mere fact that the alibi defense was unsuccessful does not constitute ineffective assistance of counsel. Defendant's claim of ineffective assistance of counsel is without merit because there is no evidence of deficient performance by counsel or resulting prejudice to defendant.People v. Lester, slip op. at 3.
Petitioner has failed to establish that the Michigan Court of Appeals decision was contrary to or an unreasonable application of Supreme Court precedent. A review of the record indicates that Petitioner's counsel did present an alibi defense. As stated by the Michigan Court of Appeals, the mere ineffectiveness of this defense does not render counsel ineffective. Moreover, Petitioner's claim that missing witnesses would have bolstered his defense is unsubstantiated. In order to establish ineffective assistance of counsel, a petitioner must make more than merely speculative, vague assertions. Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir. 1985).
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
F. Sentencing Claim
Finally, Petitioner claims that he is entitled to habeas corpus relief because his sentence was disproportionate. This claim is without merit.
Petitioner's claim that his sentence is unconstitutional because it is disproportionate is similarly meritless. There exists no constitutional right to strict proportionality in sentencing. Harmelin v. Michigan, 501 U.S. 957 (1997). However, the Eight Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment'."United States v. Organek, 65 F.3d 60 (6th Cir. 1995); see also United States v. Williams, 15 F.3d 1356 (6th Cir. 1994), cert. denied 513 U.S. 966 (1994) (holding that, generally, a sentence within the statutory limitations does not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374 (1982) (holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and . . . successful challenges to the proportionality of particular sentences should be exceedingly rare") (internal quotations omitted). The State of Michigan sentencing guidelines for armed robbery are for life or any term of years.
Petitioner stole $800 at gunpoint from a gas station. The sentence imposed by the trial court is well within the statutory maximum. Therefore, the Court finds that Petitioner's sentence is not grossly disproportionate to his crime and does not offend the Eighth Amendment.
V. Conclusion
For the foregoing reasons, the Court holds that Petitioner is not entitled to habeas corpus relief.
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.