Opinion
Case No. 99-CV-70194-DT
May 26, 2000.
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
Mitchell Makidon, ("petitioner"), presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction on one count of criminal sexual conduct, third degree, M.CL.A. 750.520(d)(1)(a); M.S.A. 28.788(4)(1)(a), as well as his conviction on a supplemental information charging him with being a fourth felony habitual offender, M.C.L.A. 769.12; M.S.A. 28.1084. For the reasons that follow, the Court denies the petition for writ of habeas corpus.
I. BACKGROUND
The Court adopts the relevant summary of the facts of this case as they were set forth in the Michigan Court of Appeals' decision:
Danielle Mittan testified that she was 14 years old and was babysitting Jodie Fivecoat at the Fivecoat residence in a rural area near Corunna. A tall man with a long beard, mustache, light-colored long sleeve shirt with button-down cuffs, offwhite dress pants, black belt, and leather zip-up boots drove to the house in a burgundy-colored car, knocked on the door, asked some questions, and entered the house without invitation when Danielle went to get the phone book for him. He skimmed through the book on the pretext of looking for "Millers", wiped the cover off and returned it to Danielle. When Danielle thought he was leaving, she went to the spare bedroom to get a blanket to lie on for sunbathing. He followed her into the bedroom, threatened harm to Danielle or Jodi if his orders were not obeyed, and raped her [Danielle]. She called Mrs. Boggs, her mother's best friend, approximately 15 minutes after the defendant left and Mrs. Boggs came immediately and called the police. When the police went to arrest the defendant about 2 a.m., he arose from bed, looked out the window, and fled in his underwear about three-eighths of a mile through a corn field across a wheat field and towards a swamp. When he arrived at the swamp, he commenced crawling. The group of officers chased him calling, "Halt, police officers." One fired five warning shots in the air before defendant could be held at gunpoint by one of the officers. At that time he had a beard and mustache. Some time while in jail in Iosco County his beard disappeared and his face was red and bleeding, although the Shiawassee County detective in charge of the case had asked the Iosco County Sheriff's Office to prevent the defendant from altering his appearance.
Danielle and Jodi were separately given 11 black-and-white photos taken by the Iosco County Sheriff's Department. They each positively identified the defendant's photograph.
The defense was an alibi and there was some question of the credibility of the testimony of his various witnesses.People v. Makidon, No. 78408 (Mich.Ct.App. June 11, 1985), pp. 1-2.
Petitioner's conviction and sentence were affirmed by the Michigan Court of Appeals and the Michigan Supreme Court. People v. Makidon, 78408 (Mich.Ct.App. June 11, 1985); lv. den. 76762 (Mich.S.Ct. December 4, 1985). Petitioner thereafter filed a motion for relief from judgment with the Clinton County Circuit Court, in which he again challenged the constitutional validity of a 1964 breaking and entering conviction used as a predicate offense to charge him with being a fourth felony habitual offender. The trial court denied the motion. People v. Makidon, Order Denying Motion for Relief From Judgment, dated March 15, 1996. Petitioner's application for leave to appeal was denied by the Michigan appellate courts. People v. Makidon, 195799 (Mich.Ct.App. May 1, 1997); lv. den. 575 N.W.2d 558 (1998). Additional facts will be brought out as necessary to discuss petitioner's individual claims.
Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Where a newspaper article appeared during trial of this case which revealed that petitioner was on parole from a prior rape conviction at the time of the instant rape, and that he had only served 11 years of his 30-50 year sentence, the trial court reversibly erred in refusing defense counsel's request for separate voir dire of the jurors and defendant was denied his constitutional right to an impartial and fair jury.
II. The prosecutor's repeated and improper and inflammatory comments denied petitioner his right to a fair trial and due process of law.
III. Defendant's conviction as an habitual offender must be reversed where it was based on an invalid prior conviction lacking the required court appointed representation of counsel, and other vested constitutional rights afforded all other criminal defendants.
II. STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) govern this case because petitioner filed his habeas application after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997). The Act altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. 28 U.S.C. § 2254(d) provides:
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 Supreme Court has only recently defined the applicability of § 2254(d)(1). With respect to the "contrary to"clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision will clearly 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 the Supreme Court's cases. Second, a state-court decision would also be contrary to the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, 120 S.Ct. 1495, 1519-1520 (2000). On the other hand, a run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. at 1520. These cases should be reviewed under the "unreasonable application" language of § 2254(d)(1).
A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor, 120 S.Ct. at 1521. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. Thus, a federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Id. at 1522.
III. DISCUSSION A. Petitioner was not denied a fair trial when the trial court refused to separately voir dire the jurors about whether they had read or heard about a newspaper article which had been published in the middle of petitioner's trial.Petitioner first claims that the trial court erred in refusing to separately voir dire the jury about a newspaper article which had been printed in the local newspaper on January 18, 1984 concerning an interview with the local prosecutor about the case. In the article, it was revealed that petitioner had four prior felony convictions and was on parole for a rape conviction after having only served eleven years of a thirty to fifty year sentence. Prior to the third day of trial on January 19, 1984, defense counsel requested that the trial court ask the jurors about whether they had heard about or read the newspaper article. The trial court denied the request, ruling that questioning the jurors about the article would merely bring it to their attention and defense counsel would then have to ask the court to discharge the jury. The trial court further noted that the jurors had taken an oath to decide the case solely on matters heard in court and unless the trial court had evidence to the contrary, it would assume that the jurors would follow their oath. However, just before the noon recess that day, the trial court did make the following statement to the jury:
I repeat that if you see or hear or read anything concerning this matter outside the courtroom itself, you are not to include that in the course of your deliberations. I would ask at this time as I continue that instruction, if any of you would anticipate any difficulty in restricting your determination of facts to only those matters that are seen or heard in open court, that I tell you are legitimate bits of information, if any of you have any difficulty doing that? Good, then continue to do so. Do not discuss this matter until it is sent to you for your deliberations.
In addition, the trial court warned the jury after the first day of trial that if they heard or read any media reports concerning this matter, to remember that the only testimony they were to consider would be the evidence heard in open court. When the jurors were excused for their noon recess on the second day of trial on January 18th, the trial court gave them an even a stronger warning, admonishing the jury to ignore any media reports about the case. The court also warned the jurors not to discuss the case until the case was completed and the jury was sent out for deliberations. The trial court repeated this warning at the end of the second day of trial. At the end of the third day of trial, the trial court again advised the jury that the only evidence they were to consider would be the matters that they had heard in open court and if they heard anything about the case from outside the courtroom, they were to disregard it.
The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that might conceivably prejudice the veniremen against him. Ristaino v. Ross, 424 U.S. 589, 594 (1976) (holding that a state trial court is not required to ask jurors questions directed specifically towards racial prejudice where the court asked a general bias question to the jurors). The state's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than a specific inquiry into a specific prejudice feared by petitioner. Id. at 595; Ham v. South Carolina, 409 U.S. 524, 527-528 (1973). Moreover, the Due Process clause does not require questions from a judge specifically dealing with the content of what each juror has read about a case. See Mu'Min v. Virginia, 500 U.S. 415, 431 (1991). Federal courts should accord state trial courts particularly wide discretion with regard to the propriety of voir dire questions. Daniels v. Burke, 83 F.3d 760, 766 (6th Cir. 1996).
In the present case, the trial court several times warned the jury to avoid reading or listening to any media reports or other extrajudicial information about the case. When a state trial court repeatedly admonishes a jury to avoid reading or listening to any media account about the trial, a federal habeas court will presume that the jury followed the instructions. See Tyler v. Nelson, 163 F.3d 1222, 1230 (10th Cir. 1999). Petitioner has offered no evidence to show that any of the jurors ignored the trial court's warnings and read this article and therefore, he has failed to rebut the presumption that the jurors followed the trial court's instruction against reading any articles about the case.
Moreover, the trial court in this case chose not to question the jurors about whether they had read or seen the article because he feared that the question would merely bring the article to the jurors' attention. The trial court instead chose to question the jurors about whether any of them would have any difficulty in restricting their determination of the case to only those matters heard in open court. The manner in which the voir dire was conducted was clearly done to "steer the jurors away from the adverse publicity." Moore v. Harris, 469 F. Supp. 945, 951 (S.D.N.Y. 1979). The trial judge issued several warnings to the jury that they were not to read or consider any news or media reports about the case nor were they to consider any extrajudicial information in their deliberations. Under the circumstances, this Court concludes that the general safeguards already undertaken by the trial court were adequate to ensure the jury's impartiality without special questioning as to the article. Id.
Moreover, as the Michigan Court of Appeals noted, the newspaper article was a small one printed in a local paper with "no screaming headline". People v. Makidon, Slip. Op. at p. 4. The Court has reviewed the article, attached as Petitioner's Exhibit A, and agrees that the article was small and was not inflammatory. In United States v. Manzella, 782 F.2d 533, 543 (5th Cir. 1986), the Fifth Circuit ruled that a defendant was not entitled to reversal on the basis of a newspaper article published during the defendant's trial which referred to the defendant's prior conviction, even though the trial court failed to voir dire the jury about the article, where the court warned the jury against reading news accounts about the trial at least twice before the publication of the article, the article was not a headline item, and the inadmissible information as to the prior conviction constituted one small paragraph at the end of a medium length article.
This Court concludes that the trial court's refusal to voir dire the jurors individually about whether they had been exposed to this particular article was neither contrary to, or an unreasonable application of clearly established federal law. Petitioner has failed to state a claim upon which habeas relief can be granted.
B. Claim # 2. Petitioner was not deprived of a fair trial on the basis of prosecutorial misconduct.
Petitioner next alleges several instances of prosecutorial misconduct. When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for a prosecutor s statements or conduct must be viewed in context and only in doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial. United States v. Young, 470 U.S. 1, 11 (1985). Moreover, because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985) (Cohn, J.). In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra, 4 F.3d at 1355-1356. Against that standard of review, the Court turns to the specific instances of misconduct petitioner alleges.
1. Improper cross-examination of petitioner by the prosecutor.
Petitioner first claims that the prosecutor committed misconduct by concluding his cross-examination of petitioner with the following question:
I guess I have just one more question, Mr. Makidon. Can you tell me how much pleasure you get out of raping a 14 year old girl.?
The trial court immediately sustained defense counsel's objection to the question and ordered the question to be stricken. The trial court later reminded the jurors several times in his instructions that the questions and comments of the attorneys were not evidence. This single question that petitioner challenges was not so serious that it infected the entire proceedings, where his attorney objected to the comment and the trial court sustained the objection. See Sanchez v. Gilmore, 189 F.3d 619, 624 (7th Cir. 1999); cert. denied sub nom Sanchez v. Schomig, 120 S.Ct. 1724 (2000). In the present case, the prosecutor's brief question to petitioner, while inappropriate, was not so substantial as to infect the entire trial, particularly where the trial court told the jury that the remarks of the attorneys were not to be considered as evidence and they were only to consider the sworn testimony of the witnesses as evidence, and the trial court later instructed the jury that they were the sole judges of the facts. See Fell v. Rafferty, 736 F. Supp. 623, 633 (D.N.J. 1990).
2. The prosecutor's comments in closing argument.
Petitioner also alleges that the prosecutor committed numerous acts of misconduct during his summation. In rejecting these claims of misconduct, the Michigan Court of Appeals noted that no objection was made to these remarks and they declined to review the issue unless failure to do so would result in manifest injustice. People v. Makidon, Slip. Op. at p. 5. Respondent now contends that petitioner has procedurally defaulted on his remaining claims of prosecutorial misconduct. This Court agrees.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751 (1991).
If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
In this case, the Michigan Court of Appeals clearly indicated that by failing to object at trial, petitioner had not preserved the issue regarding the prosecutor's comments made during closing argument. Petitioner has not attempted to explain his state procedural default. Because petitioner has not demonstrated any cause for his procedural default, it is unnecessary for this Court to reach the prejudice issue. Additionally, petitioner has not presented any new reliable evidence to support any assertion of innocence which would allow this Court to consider this ground for a writ of habeas corpus in spite of the procedural default. The Michigan Court of Appeals' limited review of the unobjected to remarks for a miscarriage of justice does not constitute a waiver of the procedural default by the State of Michigan. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). This Court finds that petitioner has procedurally defaulted with respect to his claim that the prosecutor committed misconduct during closing argument.
Even assuming that petitioner has established cause for his default, he is unable to satisfy the prejudice prong of the exception to the procedural default rule. The cause and prejudice exception is conjunctive, requiring proof of both cause and prejudice. Cosme v. Elo, ___ F. Supp. 2d ___, 2000 WL 246592, * 3 (E.D. Mich. February 4, 2000) (Cohn, J.). The remaining allegations of misconduct would not entitle petitioner to habeas relief.
Petitioner first alleges that the prosecutor committed misconduct by referring to him as a liar in closing argument. A state prosecutor's references to a defendant as a liar and to the defendant's testimony as lies does not violate a habeas petitioner's right to a fair trial where the evidence of guilt is overwhelming, the remarks are isolated, and the remarks do not mislead the jury. See Gilliam v. Kirby, 958 F. Supp. 255, 260 (N.D. W. Va. 1997). The prosecutor's reference to petitioner as a liar was a brief remark made at the end of his closing argument. The evidence of petitioner's guilt was overwhelming. The Court concludes that this comment by the prosecutor did not deprive petitioner of a fair trial.
In a related claim, petitioner alleges that the prosecutor wrongly appealed to the jury's religious beliefs when he stated that any man who raped a fourteen year old girl "isn't going to be concerned about the fate of his soul if he lied about whether he was there or not or whether he did it or not." The prosecutor's reference merely served to emphasize his argument that petitioner was guilty of the crime. The prosecutor did not suggest that petitioner should be adjudicated under Biblical law nor did he ask the jury to decide the case on a religious or emotional basis. The brief comment by the prosecutor was therefore not improper. See United States v. Bailey, 123 F.3d 1381, 1400-1401 (11th Cir. 1997). The prosecutor's comment was not so "imbued with religious overtones" to be inappropriate in the context of the trial. See Waldrop v. Thigpen, 857 F. Supp. 872, 928-929 (N.D. Ala. 1994).
Petitioner also alleges that the prosecutor engaged in numerous instances of improper vouching of witnesses. A prosecutor may not express a personal opinion concerning the guilt of a defendant or the credibility of trial witnesses because such personal assurances of guilt or vouching for the veracity of witnesses by the prosecutor "exceeds the legitimate advocates' role by improperly inviting the jurors to convict the defendant on a basis other than a neutral independent assessment of the record proof" Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999). However, a prosecutor is free to argue that the jury should arrive at a particular conclusion based upon the record evidence. Id. A prosecutor may use summation to argue the merits and thesis of the case, including the right to discuss the motives and credibility of any witnesses. Jackson v. Lacy, 74 F. Supp.2d 173, 179-180 (N.D.N.Y. 1999). The test for improper vouching for a witness is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987).
In reviewing the prosecutor's closing argument in its entirety, this Court concludes that a jury would not reasonably believe that the prosecutor was indicating a personal belief in any of the witnesses' credibility. The prosecutor's comments concerning the witnesses were all made in relation to the evidence presented at trial.
Petitioner also claims that the prosecutor impermissibly shifted the burden of proof when he commented on the fact that although the petitioner's girlfriend was called to testify on his behalf, she was not questioned about having had sexual relations with petitioner the night before his arrest to corroborate his story that the semen found on his shorts by the authorities was the result of a sexual encounter that he had with his girlfriend. Petitioner also claims that the prosecutor shifted the burden of proof by pointing out that none of the witnesses called by petitioner offered any testimony as to his good character. In the present case, the prosecution's argument did not shift the burden of proof to petitioner because any possible prejudice which might otherwise have resulted from the comment was cured by the trial court's instructions regarding the proper burden of proof. Duncan v. Stynchcombe, 704 F.2d 1213, 1216 (11th Cir. 1983); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 369 (S.D.N.Y. 1999).
Petitioner contends that the prosecutor misrepresented the facts when he argued that petitioner's semen was the semen found on the vaginal swabs taken from the victim as part of the sexual assault kit, even though no testimony was offered to scientifically link this semen to petitioner. A prosecutor has broad latitude in the inferences it may reasonably suggest to the jury during summation. United States v. Rahman, 189 F.3d 88, 140 (2d Cir. 1999). In the present case, the victim was a fourteen year old girl who identified petitioner as being her assailant. The prosecutor's comment does not entitle petitioner to habeas relief because the jury was free to accept or reject the inference that the semen found on the vaginal swabs was petitioner's depending upon all the evidence. Howard v. Gavin, 844 F. Supp. 173, 176 (S.D.N.Y. 1994).
Petitioner lastly appears to argue that the prosecutor disparaged defense counsel. It is improper for an attorney to make "unfounded and inflammatory attacks" on opposing counsel. United States v. Young, 470 U.S. at 9. A prosecutor should refrain from attacking the integrity and ethical standards of defense counsel. United States v. Pungitore, 910 F.2d 1084, 1142 (3d Cir. 1990). Although an attorney must not be permitted to make unfounded and inflammatory attacks on an opposing advocate, a prosecutor's statements in closing argument regarding defense counsel must be viewed in context. United States v. Catlett, 97 F.3d 565, 572 (D.C. Cir. 1996).
In the present case, the prosecutor in rebuttal argument noted that the defense attorney had injected some humor into his closing argument. The prosecutor went on to argue that because this was a rape case, there was no room for humor. The prosecutor, however, did not attack defense counsel's integrity or ethical standards. The prosecutor's brief remark did not disparage defense counsel. Petitioner has failed to show that he was deprived of a fair trial through prosecutorial misconduct and the Court denies relief on this claim.
C. Claim # 3. Petitioner has not shown by clear and convincing evidence that the Michigan courts' incorrectly determined that his 1964 plea was entered voluntarily and knowingly after he voluntarily waived the presence of counsel at his plea hearingFollowing petitioner's conviction on the underlying criminal sexual conduct, third degree charge, a bench trial was conducted on January 24, 1984 on the supplemental information charging petitioner with being a fourth felony habitual offender pursuant to M.C.L.A. § 769.12. The three prior convictions used to charge petitioner as a fourth felony habitual offender were his 1964 conviction for breaking and entering, his 1969 conviction for attempted kidnaping, and a 1972 conviction for rape. At trial on the fourth felony habitual offender charge, petitioner's counsel objected to the use of his 1964 breaking and entering conviction in the Clinton County Circuit Court on the ground that it was obtained without the assistance of counsel. The trial court denied the objection, finding that petitioner had requested an attorney solely for the purpose of conferring with counsel and that counsel had been appointed, petitioner had conferred with counsel, and then had chosen to waive his right to counsel at the plea hearing by pleading guilty to the charge. Petitioner was found guilty of being a fourth felony habitual offender and received the maximum sentence of life imprisonment.
Trial Transcript, January 24, 1984, pp. 15-16.
On appeal, the Michigan Court of Appeals found that an attorney had been appointed for petitioner on this charge at his arraignment, petitioner had consulted with him and been instructed how to plead in the attorney's absence, and petitioner waived his presence at the arraignment. The Court of Appeals concluded that petitioner had voluntarily waived the right to counsel at his plea. People v. Makidon, Slip. Op. at p. 8.
Petitioner again attempted to challenge the constitutionality of this plea by filing a motion for relief from judgment in the Clinton County Circuit Court. The circuit court denied the motion, stating that petitioner had not established that he was entitled to relief. Both the Michigan Court of Appeals and the Michigan Supreme Court denied the application for leave to appeal in standard unexplained orders.
An inmate currently serving a sentence that was enhanced on the basis of a prior conviction is still" in custody", and may bring a habeas petition challenging the enhancing conviction as being constitutionally invalid, even though such prior conviction's original custodial term has expired. Erdman v. Tessmer, 69 F. Supp.2d 955, 960 (E.D. Mich. 1999) (Gadola, J.). Petitioner may challenge the constitutionality of his 1964 breaking and entering conviction because it is being used to enhance his habitual offender sentence.
A trial court is prohibited from using at sentencing any prior convictions from proceedings in which a defendant was not represented by counsel and did not waive that right. Cook v. Stegall, 56 F. Supp.2d 788, 796 (E.D. Mich. 1999) (Gadola, J.) (citing Loper v. Beto, 405 U.S. 473 (1973); United States v. Tucker, 404 U.S. 443 (1972)). Thus, the Court must inquire whether Petitioner had the assistance of counsel to which the Constitution entitles him and, if he did not, whether he knowingly and voluntarily waived that right.
The Court notes that the respondent did not provide copies of the transcripts from petitioner's 1964 conviction although there was an order for the respondent to provide Rule 5 materials in this case. Petitioner, however, included copies of the transcripts from his 1964 conviction which he attached to his petition as Exhibits D, E, and F. On March 9, 2000, petitioner sent a letter to the Court requesting that the Court consider these exhibits in support of his petition in light of the fact that respondent did not provide them with the Rule 5 materials. If a habeas petition is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition. See Rules Governing § 2254 Cases, Rule 7; Levine v. Torvik, 986 F.2d 1506, 1517 (6th Cir. 1993). In light of the fact that respondent does not challenge the accuracy of these transcripts, the Court will consider them in reviewing petitioner's claim.
The Sixth Amendment right to the assistance of counsel is made obligatory upon the states by the Due Process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342-344 (1963). The right to counsel attaches at the pleading stage of the criminal process. Boyd v. Dutton, 405 U.S. 1, 2 (1972). The United States Supreme Court has found constitutional error without any specific showing of prejudice to a defendant when counsel is either totally absent, or prevented from assisting the accused during a critical stage of the proceedings. United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984); United States v. Minsky, 963 F.2d 870, 874 (6th Cir. 1992); French v. Jones, 41 F. Supp.2d 726, 732 (E.D. Mich. 1999) (Tarnow, J.). In certain Sixth Amendment contexts, prejudice from the deprivation of counsel is so likely that a case-by-case inquiry into prejudice is not worth the cost. Strickland v. Washington, 466 U.S. 668, 692 (1984).
The right to counsel includes the right to the active assistance of counsel at a plea hearing in a state felony prosecution. Childress v. Johnson, 103 F.3d 1221, 1227 (5th Cir. 1997). The constitution's guarantee of counsel cannot be satisfied by a mere formal appointment of counsel. Id. at 1227, quoting Avery v. Alabama, 308 U.S. 444, 446 (1940). In Childress, the Fifth Circuit a situation not unlike that presented by this case. The petitioner there had been sentenced by a Texas court to a term of twenty-five years' imprisonment for leaving the scene of an accident. The seeming disproportion of that sentence was the result of a recidivism enhancement applied on the basis of two plea-based convictions from the 1940's. Childress challenged the enhancement in a federal habeas proceeding, alleging that he had been denied his Sixth Amendment right to counsel.
Childress did not contend that he was totally without the assistance of counsel, nor that his counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). Rather, he claimed that he received no meaningful assistance from his court appointed lawyer. 103 F.3d at 1222. The state courts found as fact that Childress's counsel in the predicate offenses for the recidivist enhancement "never investigated the facts, never discussed the applicable law with Childress, and never advised him of the rights he would surrender by pleading guilty." Id. at 1223. Childress established that the practice in Texas at the time of his earlier offenses was to appoint counsel immediately (often, two or three minutes) before the plea was to be taken, because the law there required that an attorney be present in order for a defendant to waive a jury trial. Thus, the guilty plea was uncounseled. Childress farther claimed that as a result of his attorney's failures, he was unaware of his rights to remain silent and confront his accusers.
In this case, when petitioner was initially presented for arraignment on the breaking and entering charge in state court on November 9, 1964, petitioner indicated that he wanted to have an attorney "as council"(sic). The trial court appointed an attorney and told petitioner that he could consult with him.
See Transcript, attached as Petitioner's Exhibit D, pp. 2, 5.
When petitioner plead guilty his attorney was not present.
See Transcript, attached as Petitioner's Exhibit E.
In a colloquy with the trial court, Petitioner indicated that he had spoken with his appointed counsel, that counsel had gone over the charging information with him, that Petitioner had asked counsel any questions he had concerning the charge, and that despite the attorney not being physically present in the courtroom, a fact which had been duly noted on the record, Petitioner wished to proceed. See Exh. E at 6-8. The court went even further, asking Petitioner three more times whether he had any question concerning the pending charge, to which Petitioner answered that he did not.
The Court then asked the Petitioner whether he fully understood "the nature of this charge and what it means." Petitioner answered "I do now." The Court then asked the question twice more, and Petitioner twice answered in the affirmative. The Court next advised the Petitioner that he was not required to say anything at that time if he did not wish to do so, and Petitioner again indicated his understanding.
This case is clearly distinguishable from Childress, and the distinctions lead the Court to conclude that the Petitioner was not deprived of his Sixth Amendment right to counsel. In Childress, the petitioner had an attorney present at the plea hearing who did not fulfill the Constitutional role assigned to him. In this case, petitioner had an attorney who was absent from the plea hearing, but who, by petitioner's own admissions, fulfilled his requirements. Unlike Childress, petitioner here consulted with his counsel, and indicated on the record that he had done so. He stated at the arraignment that he had had the opportunity to ask counsel any questions he had concerning the charge, and that he had done so. On inquiry from the court, petitioner stated that he understood the charge and had no further questions about it. Thus, petitioner's guilty plea was not uncounseled.
In his reply brief, petitioner contends that he and Mr. Reed (his attorney) "might have talked about the weather, God only knows." Reply Brief at 12. This is a disingenuous claim, for surely petitioner, as well as God, knows the content of that conversation. It is true that there is no record of the conversation. Under AEDPA, however, the evidentiary burden is on the petitioner. Petitioner stated on the record that he had consulted with his attorney, understood the nature of the charge, understood his right not to say anything at the plea hearing, and wished to proceed without his attorney. If petitioner had any evidence that his consultation with his lawyer was not substantive, then he might state a claim. The record is devoid, however, of any such evidence.
The Court is strengthened in its conclusion by the fact that the trial court in 1964 engaged in a thorough colloquy with the Plaintiff as to his guilty plea, and fully established that the plea itself was voluntary and knowing. That being the case, petitioner can show no prejudice from the absence of counsel at the plea hearing.
The question of waiver thus does not arise, because counsel's absence from the actual plea hearing, on these facts, did not deprive petitioner of his Sixth Amendment rights. Petitioner had the assistance of counsel at the plea stage that the Constitution requires, and has not met the evidentiary burden imposed by § 2254(e) to demonstrate otherwise.
Even if the question of waiver arose, the Court would conclude, along with the Michigan courts, that petitioner knowingly and voluntarily waived his counsel's presence from the plea hearing. A waiver of a right to a lawyer will not be lightly presumed and a trial judge must indulge every reasonable presumption against a waiver. Brewer v. Williams, 430 U.S. 387, 404 (1977); Boyd v. Dutton, 405 U.S. at 2; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Doubts about whether there has been a waiver must be resolved in favor of the defendant. Michigan v. Jackson, 475 U.S. 625, 633 (1986).
In order to establish that a defendant validly waived the right to counsel, the state bears a heavy burden of proving that the waiver was voluntary, knowing, and intelligent. Brewer v. Williams, 430 U.S. at 403; Henderson v. Frank, 155 F.3d 159, 166 (3d Cir. 1998). The right to counsel must be waived affirmatively. See United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000). The Supreme Court has held that a waiver of the Sixth Amendment right to counsel is valid only when it reflects "an intentional relinquishment or abandonment of a known right or privilege." Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Johnson v. Zerbst, 304 U.S. at 464). In other words, the accused must "know what he is doing" so that "his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942).
In the present case, the record establishes that petitioner requested an attorney and that one was appointed for him, and that the petitioner consulted with him in reaching a decision on how to proceed. The Court inquired of the petitioner whether he wished to proceed at that time, immediately after the prosecutor had noted for the record that defense counsel was not in the courtroom, but that petitioner had consulted with him.
Petitioner's mere appearance in court without counsel could not be deemed to constitute an effective waiver of the right to the assistance of counsel. Cuevas v. Wilson, 264 F. Supp. 65, 72 (N.D. Cal. 1966). Petitioner's plea of guilty would also not constitute a waiver of the right to counsel. United States v. Washington, 341 F.2d 277, 284 (3d Cir. 1965). Here, there is more than just petitioner's guilty plea itself and his appearance in court that indicate his waiver. He stated affirmatively that he wished to proceed, despite the Court's advice that he need not say anything, and despite his attorney's absence from the hearing.
The Court concludes that the absence of petitioner's counsel from his 1964 plea hearing did not, on the facts of this case, deprive petitioner of his Sixth Amendment rights, because the attorney still provided the assistance required by the Constitution at the pleading stage. Even if the attorney's physical presence were Constitutionally required unless waived, the Michigan courts' decisions that petitioner had knowingly and intentionally waived his right to the assistance of counsel at his plea hearing was neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, the use of the 1964 conviction to enhance petitioner's supplemental information to a fourth felony habitual offender charge was also not contrary to, nor an unreasonable application of clearly established federal law.
The Court notes that it is bound by the Michigan courts' findings of the historical facts surrounding the petitioner's 1964 conviction unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e). Whether those facts establish a knowing, voluntary, and intelligent waiver of the right to counsel however, is a question of law to which § 2254(e) is inapplicable.
IV. ORDER
For the reasons stated, the Court DENIES the Petition for Writ of Habeas Corpus.
LET JUDGMENT ENTER ACCORDINGLY.
Dated: MAY 26, 2000. Detroit, Michigan