Opinion
Case No. 1:99-CV-655
January 17, 2003
ORDER
In accordance with the Opinion issued this date,
IT IS HEREBY ORDERED that Plaintiff's Objections (Dkt. No. 65) are DENIED. IT IS FURTHER ORDERED that Magistrate Judge Ellen S. Carmody's Report and Recommendation (Dkt. No. 61) is ADOPTED.
OPINION
This matter is before the Court on Petitioner's Objections to Magistrate Judge Ellen S. Carmody's Report and Recommendation ("Report"). Magistrate Judge Carmody recommends denial of Petitioner's writ of habeas corpus because he is not being confined in violation of the Constitution, laws, or treaties of the United States.I. Facts
A more complete recitation of the facts may be found in Magistrate Judge Carmody's Report. In summary, in 1991, Petitioner was convicted in state court of delivery of more than 650 grams of cocaine in violation of Mich. Comp. Laws § 333.7401(2)(a)(I) and of conspiracy to deliver more than 650 grams of cocaine in violation of Mich. Comp. Laws § 750.157a. Petitioner was directly involved in the distribution of well over 100 pounds of cocaine. As a repeat offender, Petitioner was sentenced to two consecutive terms of life imprisonment without the possibility of parole. Petitioner pursued an appeal in the Michigan Court of Appeals. The Michigan Court of Appeals affirmed Petitioner's conviction. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. Defendant raised issues regarding the effective assistance of his trial and appellate counsel in his application. The Michigan Supreme Court denied Petitioner's application for leave to appeal. Two years later, on March 24, 1997, Petitioner filed a motion for relief from judgment in the trial court. Petitioner asserted a new ineffective assistance of counsel claim apparently regarding his trial counsel. The trial court denied Petitioner's motion stating, "the motion alleges grounds for relief which were decided against [Petitioner] previously, or alleges grounds for relief which could have been raised on appeal earlier." People v. Morris, No. A91-0421FC, slip op. (Kalamazoo Cir. Ct., June 3, 1997). The court also denied Petitioner's request for reconsideration. People v. Morris, No. A91-0241FC, slip op. (Kalamazoo Cir. Ct., July 10, 1997). Petitioner then sought leave to appeal in the Michigan Court of Appeals again raising the same ineffective assistance of counsel issue he had raised in his motion for relief from judgment in the trial court. The Court of Appeals found Petitioner failed "to meet the burden of establishing entitlement to relief under Mich. Ct. R. 6.508(D)," and denied Petitioner leave to appeal. People v. Morris, No. 205099, slip op. (Mich.Ct.App., October 22, 1998). The court also denied Petitioner's motion for rehearing. People v. Morris, No. 205099, slip op. (Mich.Ct.App., January 4, 1999). Petitioner moved the Michigan Supreme Court for leave to appeal on the same issues raised before the Court of Appeals.
The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is subject to challenge on appeal pursuant to subchapter 7.200 or subchapter 7.300;
(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision;
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief.
Mich. Ct. R. 6.508(D).
The court denied Petitioner's request and concluded Petitioner had failed "to meet the burden of establishing entitlement to relief under Mich. Ct. R. 6.508(D)." People v. Morris, No. 113938, slip op. (Mich., July 27, 1999). Petitioner then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 26, 1999.
II. Standard of Review
Under 28 U.S.C. § 636(b), a magistrate judge's report that concerns prisoner litigation shall be reviewed de novo by the district court, and the court may accept, reject, or modify the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b); L. Civ.R. 72.3(b). In conducting its review, the court may not reconsider state court decisions on state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id.
The district court's review of state court decisions on any grounds is further limited by the Antiterrorism and Effective Death Penalty Act ("AEDPA") passed by Congress in April 1996. 28 U.S.C. § 2254(d) states:
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 threshold question under AEDPA is whether [Petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 529 U.S. 362, 390 (2000). The Sixth Circuit Court of Appeals outlined how courts should apply AEDPA as follows:
A. Decisions of lower federal courts may not be considered.
B. Only the holdings of the Supreme Court, rather than its dicta, may be considered.
C. The state court decision may be overturned only if:
1. It `[applies] a rule that contradicts the governing law set forth in [Supreme Court of the United States] cases,' or; The Supreme Court precedent must exist at the time of petitioner's direct appeal.
2. the state-court decision `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent;' or
3. `the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;' or
4. the state court `either unreasonably extends a legal principle from [a Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'
D. Throughout this analysis the federal court may not merely apply its own views of what the law should be. Rather, to be overturned, a state court's application of Supreme Court of the United States precedent must also be objectively unreasonable. That is to say, that `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.' `[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law.'
E. Findings of fact of the state courts are presumed to be correct. `The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001) (internal citations omitted).
III. Analysis A. Plaintiff's First Objection
Petitioner objects to the Magistrate Judge's finding that claims II, III, V, and VI have been procedurally defaulted.
Federal habeas corpus review is not available to a state prisoner who has defaulted his federal claims in state court on an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 749 (1991). The Sixth Circuit has established a four part test to determine if a claim is procedurally defaulted:
(1) the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule;
(2) the court must determine whether the state court actually enforced the state procedural sanction;
(3) it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim; and
(4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). In rare instances, when a constitutional violation likely caused the conviction of an innocent party, the fourth requirement, good cause for failure to comply with a state procedural rule, is suspended. McCleskey v. Zant, 499 U.S. 467, 494 (1991). Such a claim of a fundamental miscarriage of justice must be supported "with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
In Michigan, a criminal defendant cannot collaterally attack a conviction based upon claims that were previously decided against him in a prior appeal. Mich. Ct. R. 6.508(D)(2). Additionally, a criminal defendant cannot raise issues he could have raised on direct appeal without good cause for failing to do so. Mich. Ct. R. 6.508(D)(3). The Report concludes that Petitioner first raised these four claims before the Michigan Supreme Court as part of his collateral attack upon his conviction. The Michigan Supreme Court denied Petitioner's motion seeking review because he failed to establish entitlement to relief under Michigan Court Rule 6.508(D). Morris, No. 113938. This finding demonstrates that the state court relied upon a procedural rule in making its ruling. Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002). Rule 6.508(D) constitutes an independent and adequate state ground, reliance on which precludes federal review of those issues against which it is applied. Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2002) (internal citations omitted).
Petitioner has not made a colorable showing of factual innocence. Therefore, unless he establishes good cause for failing to comply with the state procedural rule, and actual prejudice resulting from the alleged constitutional violation, this Court cannot review these particular claims.
Petitioner argues ineffective assistance of counsel prevented him from complying with the state procedural rule. Ineffective assistance of counsel demonstrates cause if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986) (finding "a showing that the factual or legal basis for a claim was not reasonably available to counsel or that `some interference by officials,' made compliance impracticable would constitute cause under this standard") (internal citations omitted). However, the exhaustion rule still applies in that Petitioner should have brought the ineffective assistance of counsel claim before the state court before relying on it to establish good cause for his procedural default. Id. at 488-89. The Sixth Circuit has distinguished Murray finding "Murray applies only when a habeas petitioner does not claim that counsel's performance was so deficient as to constitute ineffective assistance of counsel." Lucas v. O'Dea. 179 F.3d 412, 419 (6th Cir. 1999). If the petitioner demonstrates he did not receive counsel guaranteed by the Sixth Amendment, that is sufficient to demonstrate good cause for failure to comply with state procedural requirements. Id.; People v. Reed, 535 N.W.2d 496, 500-01 (1995).
Petitioner was represented by Cyril Pessina in his appeal by right to the Michigan Court of Appeals and by Andrew Marks in his appeal by leave to the Michigan Supreme Court. Petitioner proceeded without counsel on collateral review. In his habeas petition, Petitioner asserts that his appellate counsel rendered ineffective assistance of counsel without identifying to which counsel he is referring. The Court will assume the claim is asserted against both Mr. Pessina and Mr. Marks.
Because Mr. Pessina did not represent Petitioner before the Michigan Supreme Court, whether he was ineffective is irrelevant. Mr. Pessina did not prevent Petitioner from raising the defaulted issues before the Michigan Supreme Court. Mr. Pessina's representation cannot, therefore, constitute good cause. Since Petitioner has not established good cause, one of two prerequisites before this Court can hear these claims, the Court need not consider whether Petitioner suffered prejudice as a result of the alleged ineffective assistance of counsel.
Petitioner also cannot establish good cause through a claim of ineffective assistance of counsel with respect to Mr. Marks. If an ineffective assistance of counsel claim is procedurally defaulted, a petitioner would need to show cause and prejudice to excuse default of that claim before relying on it to show cause and prejudice for default on another claim. Buell, 274 F.3d at 349. Petitioner could have raised his claim of ineffective assistance of counsel by Mr. Marks in his motion for relief from judgment since he reasonably would not have raised it while Mr. Marks was representing him. Petitioner did not do so. As a result, Petitioner has failed to properly exhaust his claim of ineffective assistance of appellate counsel with respect to Mr. Marks. This Court cannot now hear the claim without a showing of cause and prejudice for failure to exhaust the claim. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Michigan Court Rule 6.502(G)(1) prohibits filing of more than one motion for relief from judgment, so Petitioner has lost his chance to file his claim for ineffective assistance of counsel. The exhaustion requirement is satisfied if Petitioner's claims are procedurally barred, as it appears his ineffective assistance of counsel claims are, and review is permissible if Petitioner can demonstrate cause and prejudice to excuse the failure to present the claim in state court. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Rust, 17 F.3d at 160. Petitioner presents no evidence or basis for this Court to find cause and prejudice for his failure to bring his ineffective assistance of counsel claims before the state court. Therefore, there can be no finding of exhaustion of these claims and there is no basis for finding good cause for failing to bring Claims II, III, V, and VI. The Court can only find Petitioner procedurally defaulted on these claims thereby precluding this Court from reviewing them. Petitioner has also made no colorable showing of factual innocence, so there is no danger of failure to review these claims resulting in a fundamental miscarriage of justice.
Whether there are exceptions to this rule is of no concern to this Court. If there are, the matter must be taken up by the state court before this Court can address it.
B. Plaintiff's Second Objection
Petitioner claims the evidence and instructions presented to the jury changed the time element of the charged offense. Specifically, the information charged conspiracy on or about June 29, 1990, whereas at trial and in the jury instructions, the prosecutor and judge spoke of a three year conspiracy and ongoing offense. As a result, Petitioner contends the jury could have found him not guilty of conspiracy on June 29, but guilty of conspiracy over three years. Petitioner objects to the Magistrate Judge's conclusion that the jury instruction was a mere variance which warrants reversal only if the accused demonstrates a prejudicial effect on his defense. Petitioner argues that it amounted to a constructive amendment that is per se prejudicial and warrants reversal of conviction. Petitioner also contends the Magistrate Judge was wrong to conclude there was overwhelming evidence against Petitioner. Petitioner states the only evidence was from the prosecution's witnesses which he considers questionable because their testimony was the result of cooperation agreements.
The Court finds this claim has not been procedurally defaulted. Therefore, the claim will be considered on its merits. Plaintiff s contention is important because whether the difference between the information and the evidence and jury instructions is a variance or an amendment is the difference between a finding of harmless error or prejudice per se, respectively. Browning v. Foltz, 837 F.2d 276, 280 (6th Cir. 1988). "A variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment. In contrast, an amendment involves a change, whether literal or in effect, in the terms of the indictment." Id. (citing United States v. Beeler, 587 F.2d 340, 342 (6th Cir. 1978)); United States v. Atisha, 804 F.2d 920, 927 (1986) (citing Watson v. Jago, 558 F.2d 330, 334 (6th Cir. 1977)) (stating a constructive amendment involves a "modification at trial in the elements of the crime charged").
Upon review, the Court finds the initial felony complaint and indictment state the two counts with which Petitioner was charged in the exact same language. Both also state the charged activity occurred on or about June 29, 1990. The prosecution's two witnesses testified at the preliminary hearing and at trial to substantially the same information. Both witnesses described how Petitioner arranged drop-offs and distribution of cocaine over the course of the conspiracy. The two witnesses testified they received a delivery from Petitioner in mid-late June 1990. The testimony did not change the elements of the crime charged nor did it offer materially different facts from those alleged in the indictment. The actual criminal conduct need not have occurred exactly on June 29, but at some time in proximity to that date. "When `on or about' language is used in an indictment, proof of the exact date of an offense is not required as long as a date reasonably near that named in the indictment is established." United States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989). The proof offered demonstrated that on a date within a week or two of June 29, 1990, Petitioner conspired to deliver and did deliver cocaine. The proof did not establish evidence of another crime or a different crime.
The facts in this case are distinguishable from those in Ford, 872 F.2d at 1231, upon which Petitioner relies. In Ford, the court permitted the jury to convict the defendant for possession of a firearm on a specific date on evidence of possession on two entirely different dates. The appellate court found this was a constructive amendment because in the jury instruction, the judge told the jury it could convict the defendant if it found he had possessed a weapon on two dates other than the date charged in the indictment. On these dates, however, the defendant had committed separate criminal offenses for which he had not been indicted. To allow a conviction based on evidence of unindicted criminal conduct would run contrary to the defendant's Fifth Amendment rights. Ford, 872 F.2d at 1236. In this case, Petitioner has been indicted for conspiracy to deliver cocaine and delivery of cocaine on or about June 29, 1990. All of the evidence presented relates to that indictment and does not raise proof of any other criminal conduct. The charge is for criminal conduct on or about June 29. The evidence shows such criminal conduct. The jury could have found such conduct occurred on that date based on the evidence. None of the concerns of an amendment or even a variance are implicated here.
Petitioner objects to the trial judge's instructions to the jury and specifically to the judge implying that the conspiracy was continuing and ongoing and that the conspiracy involved not only an agreement to deliver cocaine but also to resell cocaine, which was not specifically charged. The jury instruction included the following: "the agreement took place or continued from on or about the second week of June 1990, until on or about July 3rd, 1990." Petitioner argues this constitutes a constructive amendment because it changes the language of the indictment from the conspiracy occurring on June 29 to a period of time including June 29. Petitioner misreads the indictment and misunderstands use of the phrase `on or about.' As stated above, when an indictment charges criminal conduct `on or about' a particular date, if the jury finds the conduct occurred at some time near the date in the indictment, there is no harm to the defendant. Ford, 872 F.2d at 1236. The trial judge's instruction only served to explain the significance of the phrase `on or about.'
Petitioner was charged only with delivery and conspiracy to deliver.
The instruction did not constructively change the elements of the crime charged. "Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act or to accomplish some lawful act or purpose not in itself criminal but by criminal or unlawful means." People v. Bageris, 288 N.W.2d 439, 441 (Mich.Ct.App. 1979). Nothing in the jury instruction changed these elements of conspiracy. Presenting evidence of other overt acts does not change the theory of the case, charge the defendant with a different substantive crime, or alter the elements of the crime. United States v. Atisha, 804 F.2d 920, 927 (1986) (citing United States v. Giese, 597 F.2d 1170,1180 (9th Cir.), cert. denied, 444 U.S. 979 (1979)). The trial judge's jury instructions, therefore, did not constitute a constructive amendment or even a variance of the indicted charges.
Even if it was trial error for the court to give the above instruction, to show it was harmless error, Petitioner has to establish the instruction resulted in "actual prejudice." Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). Petitioner suffered no prejudice since he was on notice that the facts presented by the witnesses and reiterated in the jury instruction would be at issue. The witnesses testified to the same facts at the preliminary examination. "To warrant habeas relief because of incorrect jury instructions, Petitioner must show that the instructions, as a whole, were so infirm that they rendered the entire trial fundamentally unfair." Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000). Petitioner can make no showing that the jury instructions as a whole rendered the trial fundamentally unfair.
IV. Conclusion
Therefore, the Court will deny Plaintiff's Objections. The Court will adopt Magistrate Judge Ellen S. Carmody's Report and deny Petitioner's writ for habeas corpus.
DATED in Kalamazoo, MI: January 17, 2003