Opinion
Case No. 00-10503-BC.
January 10, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is the application of petitioner Arthur Massenburg for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, who is presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, alleges that he is in the custody of the Michigan Department of Corrections in violation of his constitutional rights. The Court disagrees, and will deny the petition.
I.
The petitioner was originally charged with first-degree premeditated murder, first-degree felony murder, kidnaping, and possession of a firearm while committing a felony ("felony firearm"), arising out of an incident which occurred in Detroit, Michigan in the late evening and early morning hours of September 3 and 4, 1992. The petitioner was originally tried jointly with his co-defendant Nicole Alexander and found guilty by a jury of first-degree felony murder and felony firearm. This conviction was reversed on appeal and remanded for a new trial. See People v. Massenburg, No. 166321 (Mich.Ct.App. April 10, 1995). After a second trial, the petitioner was found guilty of kidnaping and felony firearm, but was acquitted of felony murder.
The prosecution's theory of the case was that the petitioner and co-defendant Alexander had gone to an apartment in Detroit where the victim Murada Muhammad lived, forced her at gunpoint to accompany them to an apartment on Elmhurst Street out of which she sold illegal drugs for the petitioner, and later shot and killed her because Ms. Muhammad owed the petitioner and Alexander twenty dollars in drug proceeds. The petitioner's defense was that Ms. Muhammad voluntarily accompanied him to the Elmhurst street apartment, for the purpose of selling drugs from that dwelling. The petitioner denied murdering Ms. Muhammad, claiming that she was shot after he left the apartment for the night.
Ms. Muhammad shared an apartment on Monterey Street in Detroit with Rachel Jones and Kim Lockett. On the night of September 3-4, 1992, Semone Smith was also staying at this residence. Trial Transcript, vol. I, at 19-20, 39-40, 43. On the night in question, Ms. Smith returned to the Monterey Street apartment sometime after midnight. When she arrived at the apartment building, the petitioner and Alexander were waiting by the outside door of the building. When Smith opened the outer door, the petitioner and Alexander followed her into the building to the door of the apartment. Ms. Smith indicated that the petitioner had a gun.
Smith asked the petitioner if he needed to see someone. The petitioner told Smith to "Keep going up the motherfuckin' stairs." When Smith opened the door to the apartment, the petitioner had a gun pointed at her. The petitioner asked Smith where Ms. Muhammad was and then walked into the apartment. The petitioner went over to Ms. Muhammad, who was lying on the couch in her pajamas. The petitioner grabbed Ms. Muhammad's shoulder, causing her to roll off the couch. Ms. Muhammad asked the petitioner "Is this about earlier?", but the petitioner ordered her to get dressed. After Ms. Muhammad was dressed, the petitioner grabbed her by the arm and escorted her out of the apartment. Ms. Smith could not recall whether she saw a gun displayed when the petitioner was near the couch. Id. at 21-23, 25-29, 34.
Rachel Jones testified that she was in her bedroom in the Monterey Street apartment when she heard people talking loudly in the living room. Jones went into the living room and observed the petitioner standing over Ms. Muhammad, armed with a gun. While in the apartment, the petitioner asked Semone Smith "if she had a fuckin' problem." The petitioner ordered Ms. Muhammad to get up and get dressed. The petitioner grabbed Ms. Muhammad by the arm and took her outside. According to Jones, Ms. Muhammad was still dressed in her pajamas when she left the apartment. Id. at 44-47.
Neither Smith nor Jones ever saw the petitioner strike Ms. Muhammad nor did they see Ms. Muhammad attempt to pull her arm away from the petitioner. Neither witness heard Ms. Muhammad tell the petitioner that she did not want to go, nor did Ms. Muhammad ask for help. Id. at 38-39, 54-55. Although both women claimed to be afraid, they did not call the police until the next day, when people came over to their apartment to inquire about Ms. Muhammad. Id. at 35, 48-49, 51-52, 55. Jones acknowledged that Ms. Muhammad had left the apartment on a previous occasion with the petitioner and had returned safely. Both also admitted that Nicole Alexander would often drive up to the apartment, blow her car horn, and take Ms. Muhammad to work. Id. at 32-34, 37, 52-54. Although both women were aware that Ms. Muhammad was selling drugs for the petitioner out of an apartment up the street, id. at 31-32; 40-42, Jones indicated that she was unaware of any problems that Ms. Muhammad had been having with the petitioner. Id. at 50.
Frank Rembert managed the apartment building on Elmhurst Street, and rented out a first-floor apartment where the petitioner, Ms. Muhammad, and Richard Davis, a/k/a/ "Father," would sell drugs. Id. at 80-83. Rembert testified that on September 3, 1992, he let Davis and the petitioner into the apartment around 9:30-10:00 or 10:30-11:00 p.m. Rembert later went down to the apartment unit to buy drugs from Davis. Rembert testified that Davis, the petitioner, and Ms. Muhammad were present in the apartment at that time. Rembert indicated that he did not let Ms. Muhammad into the apartment that night. Rembert did not see a gun at that time and left to go upstairs to smoke cocaine with his girlfriend. Id. at 84-86, 93-94, 98-99. Rembert testified that the petitioner and Davis had been arguing when he was downstairs at the first floor apartment. Although he didn't know exactly what the argument was about, Rembert testified that it had something to do with Ms. Muhammad. Id. at 111-12.
Rembert returned later in the evening to the apartment on the first floor to purchase more drugs and to retrieve his television set. Rembert heard an argument, which sounded as if a woman was screaming and pleading for her life. However, when Rembert saw Muhammad, she was not crying. Rembert retrieved his television, purchased some more drugs, and went back upstairs. Id. at 86-87, 100, 105. Sometime later, Rembert heard the sound of a gunshot, looked outside, and saw Davis leaving the building. Id. at 87-88, 91. Rembert claimed he later heard a second gunshot, after which he observed the petitioner and Ms. Alexander leaving the building.
Ten minutes later, Rembert went downstairs and found Ms. Muhammad dead. Rembert denied telling the police that he had heard two gunshots, had looked out the window, and had observed three people leave the building together. Id. at 88-89, 91, 96-98, 101.
Ms. Muhammad died from a single gunshot wound. There was no evidence of close range firing. Id. at 118-121. Although police evidence technicians searched the apartment where Ms. Muhammad was shot, they recovered only one bullet fragment in the room. Trial Tr., vol. II, at 17.
The petitioner's co-defendant, Nicole Alexander, was also called to testify at the petitioner's second trial. Alexander had been convicted of first-degree felony murder and felony firearm at the petitioner's first trial, but her conviction had also been reversed on appeal. Prior to the second trial, Alexander entered into a plea and sentencing agreement with the prosecutor. Pursuant to this agreement, Ms. Alexander pled guilty to a reduced charge of second-degree murder in exchange for a maximum eight-year sentence and dismissal of the other charges against her. In exchange for this agreement, Alexander agreed to testify against the petitioner at his trial.
At the petitioner's second trial, Alexander testified she was the petitioner's girlfriend in September of 1992. She said that Davis and Muhammad used to sell drugs out of the apartment on Elmhurst Street for the petitioner, and that she also was involved in the petitioner's drug business. Trial Tr. vol. I, at 57-58, 60. In response to questions from the prosecutor, Alexander stated that she could not remember if there had been a money problem with Ms. Muhammad on September 3, 1992. She also indicated that she did not remember going to "Monster Burger" that day. Alexander testified that early in the evening on September 3, 1992, she came into contact with the petitioner at her house. Alexander testified that she did not remember if she remained with the petitioner that night, or if she came into contact with him at the Monterey Street apartment that night. Alexander testified that she was not present when Ms. Muhammad was shot. Id. at 61-62.
At that point, the prosecutor asked Alexander if she remembered entering into a plea agreement in this case. Alexander claimed that she would not recognize the actual agreement if she saw it and further stated that she did not recall making a written statement on a yellow legal pad in a jury room at the time that she entered into the agreement. When shown the alleged statement by the prosecutor, Alexander stated that the signature on the statement did not look like hers. Alexander also claimed that she did not remember what she said at her guilty plea hearing about Ms. Muhammad's death. Id. at 63-67. The prosecutor began to question Alexander about the written statement. When the petitioner's counsel objected to the prosecutor questioning Alexander about the contents of the statement, the trial court overruled the objection, stating that the prosecutor was merely trying to refresh the witness's memory. Id. at 68-69. The prosecutor then questioned Alexander about the contents of the statement that she had given to Investigator George Schmidly concerning the details about the crime. Specifically, Alexander stated that she could not remember telling Schmidly that on the afternoon of the murder, Ms. Muhammad had informed her that she was twenty dollars short from the drug money and that the two women had gone to the Monster Burger, where Ms. Muhammad got the money from "Reesy" and "Sandy." Alexander also could not remember stating that she saw the petitioner and Ms. Muhammad coming out of the apartment on Monterey Street with the petitioner brandishing his gun. Alexander also did not remember informing Schmidly that at the drug house, she gave the petitioner his gun and he shot Ms. Muhammad once. Id. at 73-76. Alexander claimed that she could not remember the night in question and had erased it from her mind. Id. at 76-77. When asked if she denied what was written on the yellow legal pad, Alexander said she did not remember it, so she could not deny it. When asked if she denied telling the judge at her guilty plea that the petitioner shot and killed Ms. Muhammad, Alexander again indicated that she could not remember making this statement, therefore, she could not deny it. Id. at 77-78.
On cross-examination, Alexander admitted that she was originally charged with felony murder. When defense counsel asked Alexander what the maximum penalty was for felony murder, the trial court told defense counsel that she could not elicit the penalty for this offense. Id. at 78. Defense counsel was permitted to elicit testimony from Alexander that she was allowed to plead guilty to a lesser charge of second-degree murder with an agreement that her minimum sentence would be eight years. Id. at 79. Counsel later made a record outside of the jury's presence concerning the trial court's ruling. The trial court indicated that he did not permit questions about the penalty for felony murder because it was the penalty for the offense for which the petitioner was being tried.
The trial court also noted that Ms. Muhammad did not give any testimony at all, because she testified that she didn't remember anything. Id. at 115-116.
The testimony of Ursula "Reesy" Harris and Chantrienes "Sandy" Baker from the petitioner's first trial was read into evidence. Trial Tr., vol. II, at 10. Both women testified that they were at Monster Burger during the day on September 3, 1992, when they observed Ms. Muhammad across the street arguing with Nicole Alexander. Alexander shouted that she wanted her twenty dollars back and further told Ms. Muhammad that her "ticket money" was short. The women did not observe Alexander threaten Ms. Muhammad with a weapon. Harris and Baker loaned twenty dollars to Ms. Muhammad, per her request. Alexander and Ms. Muhammad then got into a car and drove away. It did not appear to the women that Ms.
Muhammad was forced to get into this car. Trial Tr., 4/21/93, at 213-219; 226-230; Trial Tr., 4/22/93, at 133-136, 142. Harris saw Ms. Muhammad later that night at about 9:00 p.m., and they both went to Baker's house. Harris and Baker later dropped Ms. Muhammad off at her apartment between 12:30 and 2:30 a.m. Trial Tr., 4/21/93, at 220; Trial Tr., 4/22/93, at 136, 143.
The preliminary examination testimony of Richard "Father" Davis was read into evidence, because he died before the first trial.
Prior to Davis testifying at the preliminary examination, the prosecutor had given Davis immunity for any cocaine-related offenses to which he admitted in his statements to the police or in his testimony. Trial Tr., vol. II, at 11-12; Preliminary Examination Transcript at 22-27. Davis testified that on September 3, 1992, he went to the Elmhurst Street apartment at approximately 11:00 p.m. and sold drugs for three or four hours before the petitioner, Alexander, and Ms. Muhammad arrived at the apartment.
Davis testified that the petitioner had an argument with Ms. Muhammad over twenty dollars. Alexander then handed the petitioner a gun, who then asked Davis if he knew or had anything to do with the money. When Davis replied that he had nothing to do with the money, the petitioner fired a gun shot at his leg. Davis denied that the petitioner ever accused him of taking any money or doing anything wrong. Davis left the apartment and the building. P.E. Tr. at 28-32, 39, 46, 50. Davis indicated that he was in the apartment for only ten minutes before he ran out. Id. at 41. Davis denied leaving the apartment with anyone or returning to the apartment later. Id. at 36-37, 46-47.
After the prosecution rested, the petitioner testified in his own defense. The petitioner admitted that he was selling drugs in September 1992, and that Davis and Muhammad sold drugs for him out of the apartment on Elmhurst Street. On September 3, 1992, Muhammad paged him at 10:00 p.m. and told him about Davis "taking the stuff." The petitioner told Muhammad that he would come over later. The petitioner went to Ms. Muhammad's house on Monterey Street at about 12:30 a.m. The outside door to the apartment was open. The petitioner denied forcing Muhammad to come with him, stating that he had no reason to do so. The petitioner denied having a gun in his possession when he went to pick up Muhammad or at any time that night. The petitioner, Alexander, and Muhammad left and went to the Elmhurst Street apartment, where Davis let them in. Trial Tr., vol. II, at 25-27, 31, 35-37, 39.
The petitioner denied shooting at Davis at the Elmhurst Street apartment, but admitted that he and Muhammad "jumped on" Davis, with Muhammad striking him. The petitioner then fired Davis from his drug operation, and Davis left. Id. at 27. The petitioner remained at the apartment for forty-five minutes before leaving with Nicole Alexander at 1:10 a.m. Muhammad remained at the apartment to sell drugs. The petitioner testified that Muhammad was alive when they left the apartment. The petitioner denied shooting Ms. Muhammad. Id. at 27-30.
Cynthia Mallory was called as an alibi witness in this case. Mallory testified that in September of 1992, she was the petitioner's girlfriend. Mallory testified that on September 4, 1992, the petitioner arrived at her house between 2:00 and 3:00 a.m. and stayed there until the following day. Id. at 43-45.
As noted above, the jury convicted the petitioner of kidnaping and felony firearm, but found him not guilty of the first-degree felony murder charge. Id. at 95-96. The petitioner was sentenced to life imprisonment on the kidnaping charge and received a two-year sentence on the felony firearm charge, to be served consecutively to the sentence for kidnaping. Sentence Transcript at 9-10. During the sentencing, Judge Leonard Townsend, the trial judge, repeatedly indicated that he believed that the petitioner was guilty of murder, in spite of the fact that the petitioner had been acquitted of that crime. Judge Townsend, in fact, exceeded the recommended sentencing guidelines range for the kidnaping charge because he believed that the sentencing guidelines did not reflect the severity of the crime. Id. at 7, 9-10.
The court of appeals affirmed the petitioner's conviction on appeal, but remanded the case to the trial court for resentencing because the trial court improperly made an independent finding that the petitioner was guilty of murder when imposing sentence. People v. Massenburg, No. 199244, 1998 WL 1988408 (Mich.Ct.App. December 22, 1998), lv. denied, 461 Mich. 874, 603 N.W.2d 268, reconsideration denied, 461 Mich. 874, 606 N.W.2d 655 (1999).
Although the Michigan Court of Appeals did not order that the resentencing take place before another judge, Judge Townsend apparently recused himself from the case and the matter was reassigned to Judge Timothy M. Kenny. Judge Kenny resentenced the petitioner to eighteen to thirty years on the kidnaping charge and again imposed the mandatory two-year consecutive sentence on the felony firearm charge. Resentence Transcript at 7-8. Because this sentence was imposed while the petitioner's request for review before the Michigan Supreme Court was still pending, it was subsequently vacated by the Michigan Court of Appeals for want of jurisdiction. People v. Massenburg, No. 218196, 2001 WL 759971 (Mich.Ct.App. Jan. 30, 2001). Although there is no record of further proceedings on file with the Court, the sentence was presumably reimposed on remand given the petitioner's continued incarceration in the Muskegon Correctional Facility.
The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
A. Mr. Massenburg was denied due process and his state and federal constitutional right to a speedy trial after reversal of his conviction by the Michigan Court of Appeals [and] retrial was not scheduled until three hundred and eighty five days after his reversal.
B. Where the evidence introduced to the jury was unfairly prejudicial and denied Mr. Massenburg his right to a fair trial and due process.
C. Was the trial court's restriction on the defense counsel's ability to argue facts going to the credibility of a prosecution witness a denial of Mr. Massenburg's due process rights to a fair trial?
D. Mr. Massenburg was denied due process where the trial court failed to give an instruction on consent as a defense to kidnaping despite a defense request.
E. Mr. Massenburg was denied his due process right to a fair trial before an unbiased and impartial decision maker.
F. The trial court violated Mr. Massenburg's due process and a fundamental confrontation right when it prevented defense counsel from cross-examining Ms. Alexander about the sentencing consequence she was avoiding by reaching an agreement with the prosecution.
G. The errors cannot be harmless as Mr. Massenburg was denied the right of 1) to argue a prosecution bias by being granted immunity, 2) to present a defense with an (sic) consent instruction to the charge of kidnaping.
In his answer, the respondent contends that the claims lack merit and that the petition should be denied.
II.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act 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. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, 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 for habeas cases:
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.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, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("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."); 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.").
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, 529 U.S. 362, 405-06 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the 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 409. 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 § 2254(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 409, 410-11. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first claims that his right to a speedy trial was violated because of the delay between the time that his original conviction was reversed by the Michigan Court of Appeals on April 10, 1995 and the commencement of his second trial on July 29, 1996, some four hundred seventy-five days later.
The petitioner's original conviction was reversed by the Michigan Court of Appeals on April 10, 1995. However, for reasons the court of appeals later attributed to "clerical error," People v. Massenburg, 1998 WL 1988408, at *1 n. 2, the court of appeals did not return the record to the Detroit Recorder's Court until October 17, 1995. The record was received by the Detroit Recorder's Court on October 20, 1995. On November 6, 1995, an order was issued appointing counsel for the petitioner. A pretrial conference was held on December 8, 1995. At the pretrial conference, a retrial date was set for April 29, 1996. On April 29, 1996, the trial court adjourned retrial until May 20, 1996, according to the court of appeals, "because new counsel had been appointed" to represent the petitioner. On May 20, 1996, retrial was adjourned until July 29, 1996 at the trial court's request. People v. Massenburg, 1998 WL 1988408, at *1.
On July 22, 1996, the petitioner's counsel moved to dismiss the charges pursuant to the "180-day rule" set forth in Michigan Compiled Laws § 780.131 and Michigan Court Rule 6.004(d), which provides prosecutors 180 days to make a good-faith effort to try any outstanding criminal charges against an incarcerated defendant, lest the trial court lose jurisdiction over the case.
The trial court denied the motion, finding that the 180-day rule was inapplicable in this case because the petitioner was not an "untried inmate" within the meaning of the statute, since his case had already been brought to trial once and was now back before the trial court for retrial following the reversal of the conviction. Motion Transcript, 07/22/96, at 6-7. The Michigan Court of Appeals affirmed the trial court's decision.
The petitioner's primary argument is that the State of Michigan violated his rights under the 180-day rule by failing to bring him to trial within 180 days of April 10, 1995, the date that the Michigan Court of Appeals reversed his first conviction. That claim, however, arises under state law and is not cognizable on federal habeas review. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). It is "not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited on federal habeas review to deciding whether a state court conviction violates the Constitution, laws, or treaties of the United States. Id.
A violation by state officials of a state speedy trial law, taken alone, does not present a federal claim reviewable in a habeas petition. Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998).
Federal consideration of a claim that a state has violated its own speedy trial rules is limited to a determination of whether the state's action has violated a petitioner's federal constitutional right to a speedy trial or due process. Millard v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987); Wells v. Petsock, 941 F.2d 253, 256 (3d Cir. 1991). Michigan's 180-day rule is not coextensive with the petitioner's federal constitutional right to a speedy trial; a violation of this rule alone does not entitle the petitioner to habeas relief.
To the extent that the petitioner's claim alleges a Sixth Amendment speedy trial claim, it similarly lacks merit. The Sixth Amendment guarantees a criminal defendant the right to a speedy trial. U.S. Const. amend. VI. To determine whether a speedy trial violation has occurred, the court must consider the following four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his speedy trial right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor is determinative; rather the Court must weigh each factor and engage in a "difficult and sensitive balancing process" to determine whether a constitutional violation has occurred. Id. at 533.
Here, the only evidence in this record is that the delay between the reversal of the petitioner's first conviction and his retrial caused by the Michigan Court of Appeals was due solely to its negligence. The trial court's delay was attributable in part to requests by defense counsel. In Robinson v. Leapley, 26 F.3d 826, 832 (8th Cir. 1994), the Eighth Circuit held that a habeas petitioner was not denied his right to a fair trial because of a seven-month delay between the order vacating his convictions and his retrial, where there was no indication that the state's conduct was undertaken in bad faith or with the design of hampering the defense. Likewise, in this case, nothing in the record indicates a "willful attempt" by the prosecution or the Michigan courts to delay the retrial. See Davis v. McLaughlin, 122 F. Supp.2d 437, 443 (S.D.N.Y. 2000). Nor is there any evidence that the state intentionally delayed the retrial to gain a tactical advantage over the petitioner. Castro v. Ward, 138 F.3d 810, 820 (10th Cir. 1998).
The petitioner also has failed to show that he was prejudiced by the delay. The petitioner claims that the delay prevented him from presenting his ex-wife, Vanessa Massenburg, as an alibi witness.
At the petitioner's trial, defense counsel requested an adjournment, because the petitioner's ex-wife had to leave town unexpectedly to accompany her mother to the hospital and was not present in court that day. Defense counsel indicated that the petitioner's ex-wife would testify that the petitioner was with her from 4:00 a.m. to 6:00 a.m. on the morning in question. The trial court denied the request for an adjournment. Trial Tr., vol. II, at 13-15.
As an initial matter, the petitioner has failed to show that his ex-wife's absence from his retrial was caused by any delay in scheduling his retrial. Rather, the absence was sudden and unexpected, according to defense counsel. Moreover, the petitioner was able to present a far more helpful alibi defense through Cynthia Mallory, the petitioner's girlfriend. Mallory testified that on September 4, 1992, the petitioner arrived at her house between 2:00 and 3:00 a.m. and stayed there until the following day. Id. at 43-45. The prejudice claimed by the petitioner by the loss of his ex-wife as an alibi witness is mitigated by his ability to still present another alibi witness at trial. See United States v. Scott, 518 F.2d 261, 269 (6th Cir. 1975).
Furthermore, the petitioner's alibi defense apparently was effective, because the petitioner was acquitted of the murder charge. It is difficult to discern what potential helpful effect the ex-wife's testimony would have provided to the defense against the kidnaping allegation in any event. The petitioner admitted being with Ms. Muhammad earlier in the evening and accompanying her from her apartment to the Elmhurst Street apartment. His ex-wife's testimony would not have absolved him of the kidnaping and felony firearm charges.
The Court concludes that the petitioner is not entitled to habeas relief on this claim.
B.
In his second, third, and sixth claims, the petitioner alleges that the trial court deprived him of his right to confrontation as guaranteed by the Sixth Amendment, as well as his right to due process of law. In his second claim, the petitioner alleges that the prosecutor, while questioning Nicole Alexander about a written statement that she had made to the police, read portions of that statement to her on the record, under the guise of impeachment evidence, in an attempt to inject prejudicial evidence into the case. In his third claim, the petitioner alleges that he was denied a fair trial when the trial court ruled that defense counsel could not, during her summation, attack the credibility of Richard "Father" Davis on the ground that he had been granted immunity from prosecution. In his sixth claim, the petitioner contends that the trial court violated his right to confrontation when it prevented defense counsel from cross-examining Ms. Alexander about the maximum sentence that she faced if she had been convicted of the original charge of first-degree felony murder.
The Michigan Court of Appeals rejected the petitioner's second claim, finding that it was proper for the prosecutor to question Ms. Alexander with her prior statement, pursuant to Michigan Rule of Evidence 607, for the sole purpose of impeaching the credibility of her assertion that she did not remember what occurred on the night in question. The court of appeals further noted that the trial court cautioned the jury during its final instructions that the evidence was admitted solely for the purpose of judging the credibility of the witnesses, and not for substantive purposes. The Michigan Court of Appeals ruled that any error by the trial court in refusing to permit defense counsel to comment upon the immunity agreement given to Richard "Father" Davis in her closing argument was harmless, in light of the "abundant testimony from other witnesses" that established the petitioner's role in the kidnaping. People v. Massenburg, 1998 WL 1988408, at *2-3. The appellate court did not address the petitioner's sixth claim, even though the petitioner raised the claim in a supplemental appellate brief that he had been given permission to file.
A defendant in a criminal trial has the right to confront the witnesses called against him. U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause guarantees the accused the right to cross-examine adverse witnesses to uncover possible biases and expose the witness's motivation for testifying. See Davis v. Alaska, 415 U.S. 308, 316-317 (1974). The Confrontation Clause promotes reliability in criminal trials by providing defendants the opportunity for cross-examination. Kentucky v. Stincer, 482 U.S. 730, 739 (1987); see also Stevens v. Bordenkircher, 746 F.2d 342, 346 (6th Cir. 1984).
The petitioner alleges that the prosecutor, under the guise of impeaching the witness, was permitted to introduce Nicole Alexander's out-of-court statement as substantive evidence before the jury. The petitioner claims that by offering his co-defendant's statement into evidence against him, the prosecutor violated the holding in Bruton v. United States, 391 U.S. 123 (1968), in which the United States Supreme Court ruled that a defendant is denied his constitutional right of confrontation where a co-defendant's incriminating confession is admitted at a joint trial and the co-defendant does not take the stand. The petitioner's Bruton claim fails because Alexander actually testified at the petitioner's second trial and was subject to cross-examination. The petitioner actually exercised his Sixth Amendment right to confront Alexander when he cross-examined her. United States v. Morrow, 977 F.2d 222, 225 (6th Cir. 1992) (citations omitted).
To the extent that the petitioner claims that the prosecutor's use of Ms. Alexander's written statement to impeach her credibility violated his due process rights, this claim also fails. Federal Rule of Evidence 607, which mirrors Michigan Rule of Evidence 607, states that the credibility of a party may be attacked by any party, including the party who called the witness. While the federal rule is not controlling in a state trial, this rule of evidence provides "persuasive evidence that allowing the prosecutor to impeach his own witnesses does not rise to a constitutional violation meriting habeas corpus relief." Lyle v. Koehler, 720 F.2d 426, 429 (6th Cir. 1983).
In the present case, the Michigan Court of Appeals found that the record showed that the prosecutor was "obviously surprised by a recalcitrant witness" and impeached Alexander with this written statement when she claimed that she could not remember the events from the night in question. People v. Massenburg, 1998 WL 1988408, at *3. That finding of fact is entitled to substantial deference. See 28 U.S.C. § 2254(e)(1). The petitioner has offered no clear and convincing evidence to show that the prosecutor called Alexander as a witness in bad faith in an attempt to introduce her prior statement under the guise of impeachment. In fact, the evidence shows that Alexander entered into a plea agreement with the prosecutor, part of which required Alexander to testify against the petitioner at his trial. The record supports the finding of the Michigan Court of Appeals that Alexander was called in good faith by the prosecutor to testify at the petitioner's retrial and not for the purpose of introducing inadmissible evidence against the petitioner at his trial.
Finally, assuming that the trial court erred in permitting the prosecutor to question Alexander about her prior written statement, any error in the admission of this statement into evidence was harmless. Violations of the Confrontation Clause can be harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). An error of this type is harmless unless it had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). The Brecht standard applies even if a federal habeas court is the first court to review the case for harmless error, as is the case here. Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999).
In this case, most of Alexander's statement involved the murder of Ms. Muhammad by the petitioner, not the kidnaping charge. The jury obviously gave little weight to most of the statement because they found the petitioner not guilty of the murder. The only possible reference to a kidnaping was Ms. Alexander's statement that she came out of her apartment and saw the petitioner and Ms. Muhammad walking out of the apartment next door with the petitioner displaying his gun. However, Alexander did not indicate in her statement that she saw the petitioner forcing Ms. Muhammad out of the apartment, that the petitioner had his gun pointed at Ms. Muhammad, or that Ms. Muhammad left the apartment unwillingly. By contrast, Rachel Jones and Semone Smith both testified that the petitioner came into the apartment where Ms. Muhammad was residing and ordered her out of the apartment at gunpoint. In light of the testimony offered by Jones and Smith, who actually witnessed the kidnaping, Ms. Alexander's reference to observing the petitioner and Muhammad leaving the apartment together did not have a substantial and injurious effect or influence on the verdict. Any admission of this statement was harmless error at best.
The petitioner's third and sixth claims will be discussed together because they are interrelated. In his third claim, the petitioner contends that his right to a fair trial was violated because the trial court refused to permit his attorney to attack Richard "Father" Davis's credibility in her summation by mentioning that Davis had received immunity from prosecution in exchange for his testimony. In his sixth claim, the petitioner alleges that his right of confrontation was violated because the trial court refused to permit his defense counsel to question Alexander about the penalties she faced if she had been convicted of the original charge of felony murder.
Cross-examination concerning the bias of a witness is always relevant; therefore, a trial court may not prevent a criminal defendant from exploring a witness's bias, prejudice, or motive for testifying, or curtail cross-examination concerning whether the testimony was given in expectation of immunity or out of fear. Stevens, 746 F.2d at 346. Furthermore, the details of a plea agreement are "highly relevant" in assessing the credibility of a co-defendant who has pled guilty and inquiry into such details is "essential" for effective cross-examination. United States v. Roan Eagle, 867 F.2d 436, 443-444 (8th Cir. 1989).
Nonetheless, the denial of a defendant's opportunity to impeach a witness by showing bias is subject to a harmless error analysis. United States v. Stavroff, 149 F.3d 478, 481 (6th Cir. 1998). In the present case, any error by the trial court in limiting or denying the petitioner's opportunity to attack or to impeach the testimony of Davis or Alexander did not have a substantial and injurious effect or influence on the verdict in this case. Richard Davis did not witness the kidnaping of Muhammad and it is unlikely that his testimony had a substantial impact on the jury's verdict, particularly where other witnesses were able to testify about the actual kidnaping. Moreover, although defense counsel was not permitted to mention Davis's immunity agreement with the prosecution in her closing argument, Davis indicated in his testimony that he was offering evidence in this case in exchange for immunity from prosecution for drug offenses which arose out of this incident. The presence of facts on the record sufficient to permit a reasonable juror to infer bias on the part of a witness may render harmless any error by a court in limiting impeachment for bias. Stavroff, 149 F.3d at 483. Because the jury was aware that Davis had been offered immunity from prosecution in exchange for his testimony, any error by the trial court in limiting an attack on Davis by defense counsel in her closing argument was harmless.
Any error in preventing the petitioner from cross-examining Alexander about the penalty that she faced for first-degree felony murder was also harmless. In United States v. Roan Eagle, 867 F.2d at 444, the Eighth Circuit held that the trial court's error in limiting the defense counsel's cross-examination of the prosecution witness about the fact that the witness had pled guilty to voluntary manslaughter, as opposed to first-degree murder, and faced a maximum sentence of ten years was harmless, where the prosecution witness professed amnesia about the events on the night in question. Id. Likewise, in this case, any error in limiting the cross-examination of Alexander about the penalties that she faced had she been convicted of first-degree felony murder was harmless, because Alexander claimed that she could not remember whether she spent the entire night with the petitioner and testified that she did not witness the murder. Finally, to the extent that the petitioner wanted to question Alexander about the penalties that she was facing in order to "impeach" her written statement, the Court finds the error to be harmless for the same reason that it found that the error complained of by the petitioner in his second claim was harmless: Alexander's testimony added almost nothing to the kidnaping case against the petitioner.
C.
In his fourth claim, the petitioner contends that he was denied due process when the trial court refused to give a requested instruction on consent as a defense to the crime of kidnaping. As a corollary to this claim, the petitioner alleges that his defense counsel was ineffective for failing to object when, in response to counsel's request for an instruction on consent, the trial court indicated that it would give the Michigan standard kidnaping jury instruction.
On habeas review, the question is whether the instruction so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even "universally condemned." Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977); Williams v. Abshire, 544 F. Supp. 315, 319 (E.D.Mich. 1982). To warrant habeas relief, the jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir.), cert. denied, 531 U.S. 1021 (2000). The challenged instruction may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial court record. Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996). A habeas petitioner's burden of showing prejudice is especially heavy when a petitioner claims that a jury instruction was incomplete because an omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Fama v. Commissioner of Correctional Services, 69 F. Supp.2d 388, 397 (E.D.N.Y. 1999), aff'd, 235 F.3d 804 (2d Cir. 2000).
In rejecting this claim, the Michigan Court of Appeals noted that the trial court gave the jury the standard instruction for kidnaping, which informed the jury that the prosecution had to show that the petitioner, without legal authority, forcibly confined or imprisoned Ms. Muhammad and, against her will, forcibly moved her from one place to another. The trial court also instructed the jury that the prosecution had to prove that the petitioner acted "wilfully and maliciously" and without legal authority. Trial Tr., vol. II, at 84-85. The Michigan Court of Appeals concluded that when viewed in their entirety, the "gist of these instructions" adequately informed the jury that consent or the lack of consent was "an integral element of the kidnaping charge." People v. Massenburg, Slip. Op. at * 5.
In the present case, when viewed in their entirety, the trial court's jury instructions as a whole adequately conveyed the idea that Ms. Muhammad's lack of consent was an element of the offense of kidnaping and that Ms. Muhammad's consent to these actions would have negated the offense of kidnaping. The petitioner is therefore unable to show that he was deprived of his due process rights by the instructions given by the trial court.
The petitioner's related ineffective assistance of counsel claim is also meritless. The trial court responded to defense counsel's request for a "consent" instruction by stating that it would give the jury the standard jury instruction on kidnaping. Trial Tr., vol. II, at 73-74. Unless the petitioner can demonstrate that the jury instructions given by the trial court in this case violated his due process rights, he cannot show that defense counsel was ineffective for failing to object to that instruction. See Campbell v. Coyle, 260 F.3d 531, 557 (6th Cir. 2001). Here, the determination of the Michigan Court of Appeals that the instructions as a whole adequately conveyed to the jury that consent or lack of consent was an integral issue in the case was neither contrary to, nor an unreasonable application of, clearly established federal law. Counsel was therefore not ineffective for failing to object to the instructions as they were given in this case.
D.
In his fifth claim, the petitioner alleges that he was deprived of a fair trial because of judicial bias. The petitioner believes that the state trial court judge in this case, Judge Leonard Townsend, should have disqualified himself from presiding over the petitioner's trial because of the judge's involvement in the plea and sentencing negotiations with co-defendant Nicole Alexander. As part of those negotiations, the trial court agreed to impose an eight-year sentence in exchange for Alexander's agreement to testify against the petitioner. As evidence of bias, the petitioner points to comments made by Judge Townsend at the petitioner's sentencing that he believed that the petitioner was guilty of murdering Ms. Muhammad in this case, despite his acquittal of that charge. The petitioner claims that Judge Townsend developed this opinion as a result of his participation in the plea and sentencing negotiations in his co-defendant's case.
Because judicial bias infects the entire trial process, this type of claim is not subject to harmless error review. Maurino v. Johnson, 210 F.3d 638, 644-45 (6th Cir. 2000). Instead, a court is required to determine whether the actions of the trial court rose to the level of judicial bias. If bias is found, the court must overturn the state court decision. Id. The Sixth Circuit in Maurino indicated that in reviewing judicial bias claims, a court should be guided by the Supreme Court's ruling in Liteky v. United States, 510 U.S. 540 (1994). "The judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune." Id. at 556. The Supreme Court also stated that "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display" do not establish "bias or partiality." Id. at 555-56. To state a claim that a judge is biased, a defendant must show either actual bias or the appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997). Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D.Mich. 1999).
As an initial matter, the petitioner's argument that Judge Townsend had a duty to recuse himself from the petitioner's trial, pursuant to Michigan Court Rule 2.003(b), is a question of state law which, for the reasons previously discussed, is not cognizable on habeas review. See Estelle, 502 U.S. at 67-68; see also Mann v. Thalacker, 246 F.3d 1092, 1096 (8th Cir. 2001) (holding that whether Iowa judge had an obligation under state statute to recuse himself from a case was a point of Iowa law, and that the Iowa Supreme Court's negative answer disposed of the question for purposes of federal habeas review).
In the present case, the petitioner has failed to show that Judge Townsend's involvement in the plea and sentencing negotiations in co-defendant Nicole Alexander's case caused him to have any personal bias against the petitioner. "[W]hat a judge learns in his judicial capacity by way of guilty pleas of codefendants or alleged coconspirators, or by way of pretrial proceedings, or both is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification." United States v. Bernstein, 533 F.2d 775, 785 (2d Cir. 1976). The mere fact that a trial judge has accepted a plea of guilty from a co-defendant does not require him to recuse himself from a criminal defendant's trial. United States v. Baker, 441 F. Supp. 612, 616 (M.D.Tenn. 1977).
In United States v. Hartsell, 199 F.3d 812, 820-821 (6th Cir. 1999), the Sixth Circuit held that a federal district court judge did not err by electing not to recuse himself from the defendant's case, even though the judge presided over the co-defendant's plea and sentencing prior to the defendant's bench trial, where the defendant pointed to no specific facts that the judge obtained from presiding over the co-defendant's case which would raise a question about the judge's impartiality. In so ruling, the Sixth Circuit noted that there was no evidence that the judge expressed a bias or prejudice against the defendant or maintained some preconceived notion about his guilt, and further indicated that any information that the judge learned about the defendant or the events surrounding his criminal activities came from his judicial activities and not from extrajudicial sources. Id. In the present case, the petitioner has not pointed to any evidence that would show that Judge Townsend expressed a bias or prejudice against the petitioner at his trial or exhibited any preconceived notion that the petitioner was guilty of these charges. The only evidence of judicial bias that the petitioner cites were comments made by Judge Townsend at sentencing. A review of these comments, however, shows that Judge Townsend did not mention any information that he had received from Ms. Alexander at her plea or sentencing, as opposed to the petitioner's trial. In any event, it would not have been inappropriate for Judge Townsend to consider the information that he received at Ms. Alexander's guilty plea in fashioning the petitioner's sentence, because Judge Townsend learned about this information from his judicial activities, and not from extrajudicial sources.
Finally, to the extent that the petitioner claims that he was denied a fair and impartial judge at sentencing, this part of his claim has been rendered moot by the decision of the Michigan Court of Appeals vacating the sentence imposed by Judge Townsend, and remanding the matter to the trial court for resentencing. Although the Michigan Court of Appeals declined to order that the resentencing take place in front of another judge, Judge Townsend recused himself from further participation in the case, and the case was reassigned to Judge Kenny, who sentenced the petitioner on the kidnaping conviction to 18-30 years. In resentencing the petitioner, Judge Kenny explicitly indicated that his sentence did not take into account the original charge of first-degree murder.
Resentence Tr. at 7. Thus, any claim that the petitioner was sentenced by a biased judge has been rendered moot by the reassignment of the case to another judge for resentencing. See United States v. Ahmed, 980 F.2d 161, 162 (2d Cir. 1992) (finding issue involving judge's refusal to recuse himself to have been rendered moot by the trial court's subsequent order which directed the clerk of the court to re-assign the case to a different judge).
III.
The decision of the Michigan Court of Appeals affirming the petitioner's convictions and vacating his sentence was neither contrary to, nor an unreasonable application of, clearly established federal law as established by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). Furthermore, any bias evidenced by Judge Townsend at the petitioner's original sentencing was cured by Judge Townsend's recusal of himself from the case after the matter was remanded for resentencing by the court of appeals.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.