Opinion
Case No. 00-10164-BC
November 12, 2002.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR EVIDENTIARY HEARING
The petitioner, Jabez Q. Parker, a state prisoner currently confined at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of conspiracy to commit carjacking, Mich. Comp. Laws § 750.157a; carjacking, Mich. Comp. Laws § 750.529a; armed robbery, Mich. Comp. Laws § 750.529; and two counts of possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b, following a jury trial in the Bay County Circuit Court in 1996. In his pleadings, the petitioner asserts an illegal search claim and a double jeopardy claim. Neither claim is meritorious, and the Court will deny the petition.
I.
The petitioner's convictions arise from an incident in which he and codefendant John Calvin Holt, III, committed a carjacking and armed robbery of Steve Michalsky and Eric McKee during the early morning hours on September 13, 1995 in Bay City, Michigan. As part of a plea agreement, Holt agreed to testify against the petitioner at trial. Holt testified that he and the petitioner obtained several guns in Vassar, Michigan. The petitioner's girlfriend, Stacey Ausberger, then drove them to Saginaw, Michigan to purchase ammunition and other items. The petitioner and Holt returned to Vassar, armed themselves, took a truck from a man they knew, and drove to Flint, Michigan looking for someone to carjack. Holt testified that they did not find a good target in Flint and headed back toward Vassar. While driving, they stopped at a rest area in Bay City and approached Steve Michalsky and Eric McKee, who were sleeping in Michalsky's car. Holt said that he and the petitioner forced the two men out of the car, took their wallets, and fled in Mr. Michalsky's car. They returned in the stolen car to Ausberger's residence in Vassar. They only intended to stay for a short period but, fatigued from the day's activities, the petitioner and Holt fell asleep there. Holt awoke to find a police officer standing in front of him.
Police officers testified at trial regarding the investigation of the crime and the circumstances leading to the petitioner's arrest. After tracing the petitioner to Ms. Ausberger's apartment in Vassar, they found the petitioner asleep in bed with Ausberger around noon on September 13, 1995. Pursuant to a search warrant, police searched her residence and confiscated evidence linking the petitioner to the crime, including the key to Mr. Michalsky's car which was parked outside the residence. Police also recovered a sawed-off shotgun from the trunk of the stolen car, which they believed was used during the perpetration of the offenses. The petitioner moved to suppress the evidence recovered during the search of Ausberger's residence prior to trial. Following a hearing, the trial court denied the motion, finding that the petitioner lacked standing to challenge the search and seizure.
At the conclusion of trial, the jury found the petitioner guilty of conspiracy to commit carjacking, carjacking, armed robbery, and two counts of felony firearm. The trial court subsequently sentenced him to three concurrent terms of fourteen to forty years imprisonment on the conspiracy, carjacking, and armed robbery convictions and to two concurrent terms of two years imprisonment on the felony firearm convictions, to be served consecutively to the other terms.
Following his convictions and sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals, raising the following claims:
I. The trial court was clearly erroneous in denying his motion to suppress evidence on the basis of lack of standing.
II. The trial court clearly erred in not dismissing two of the five counts against him on the basis of the Double Jeopardy Clause.
The Court of Appeals affirmed the petitioner's convictions in a published decision. People v. Parker, 230 Mich. App. 337, 584 N.W.2d 336 (1998). The petitioner's delayed application for leave to appeal with the Michigan Supreme Court was denied. The petitioner's request for reconsideration of that decision was also denied. People v. Parker, 459 Mich. 987, 601 N.W.2d 105 (1999).
The petitioner filed the present petition for writ of habeas corpus on May 15, 2000, raising the same claims presented to the Michigan appellate courts. The respondent filed an answer to the petition on December 11, 2000 asserting that it should be denied for lack of merit.
II.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA), altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review 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 proceedings.28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 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 United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 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.Id. at 410.
[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 365, 411. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
The petitioner's two claims are governed by these rules.
A.
The petitioner first claims that he is entitled to habeas relief because his convictions result from evidence obtained during the course of a search and seizure which violated the Fourth Amendment. Federal courts will not address a Fourth Amendment claim in a habeas proceeding if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). The court performs two distinct inquiries when determining whether a petitioner may raise a claim of illegal search and seizure in a habeas action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).
In the present case, the petitioner's illegal search claim was the subject of an evidentiary hearing in which the relevant facts were fully developed. Police officers testified concerning the events that led to the search of the petitioner's girlfriend's residence. The petitioner also presented witnesses and argued his version of events to the trial court.
The state courts carefully and thoroughly analyzed the facts. In affirming the trial court's denial of the motion to suppress, the Michigan Court of Appeals stated in relevant part:
Defendant argues that the trial court erred in denying his motion to suppress the evidence. We disagree. This Court reviews de novo the trial court's ultimate decision with regard to a motion to suppress evidence; however, we review the trial court's findings of fact in deciding the motion for clear error. People v. Darwich, 226 Mich. App. 635, 636; 575 N.W.2d 44 (1997). See People v. Burrell, 417 Mich. 439, 448-449; 339 N.W.2d 403 (1983). A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made. People v. Lombardo, 216 Mich. App. 500, 504; 549 N.W.2d 596 (1996).
For a defendant to attack the propriety of a search and seizure, the search must have infringed a constitutionally protected interest. U.S. Const, Am IV; Const 1963, art 1, § 11; People v. Smith, 420 Mich. 1, 6, n 1; 360 N.W.2d 841 (1984). In determining whether such an infringement occurred, the trial court must decide, upon consideration of the totality of the circumstances, whether the defendant had an expectation of privacy in the object of the search and seizure and whether that expectation is one that society is prepared to recognize as reasonable. Id. at 28. Defendant contends that he has standing to assert the claim that the evidence was improperly seized on the authority of Minnesota v. Olson, 495 U.S. 91; 110 S.Ct. 1684; 109 L.Ed.2d 85 (1990). There, the Supreme Court held that an overnight guest at a residence had a legitimate expectation of privacy protected by the Fourth Amendment and that that expectation conferred standing to challenge a nonconsensual entry into a residence without a warrant that resulted in an arrest. Id. at 93-94, 100. The trial court in this case, which quoted Olson extensively in its opinion denying defendant's motion, held that the evidence presented at the suppression hearing in this case did not support the conclusion that defendant was an overnight guest at the apartment.
First, the trial court noted that none of the witnesses testified that defendant lived at the apartment. Rather, the codefendant, who was called by the prosecution, testified that defendant lived with his mother. Next, with regard to whether defendant was an overnight guest, the court stated that it disbelieved the inconsistent testimony of one of the defendant's witnesses about whether the witness was at the apartment on the night of September 12, but the court stated that it believed the testimony of the codefendant. The codefendant testified that he and defendant first went to the apartment on the evening of September 12 to ask one of the lessees if they could borrow her vehicle, that they did not come back to the apartment in question until 6:00 or 7:00 the following morning, that defendant asked him to wait while he went to talk with one of the lessees, that he waited for defendant, and that neither he nor defendant planned to stay and fall asleep in the apartment. After hearing and reviewing this evidence, the court found that, at best, defendant's evidence established that he was a mere visitor at the apartment.
Particularly where the issue involves the credibility of the witness whose testimony is in conflict, the trial court's resolution of a factual issue is entitled to deference. Burrell, supra at 448-449. Here, the trial court specifically stated that it found the codefendant's testimony credible. Therefore, the trial court stated that it was unconvinced that defendant lived at the apartment or that defendant was an overnight guest at the apartment. We are not left with a definite and firm conviction that the trial court's findings of fact were mistaken, nor do we disagree with the trial court's conclusion that these findings of fact are distinguishable from the facts in Olson, supra. Accordingly, we affirm the court's denial of the motion to suppress the evidence because defendant lacked standing to challenge the search and seizure.People v. Parker, 230 Mich. App. 337, 339-41, 584 N.W.2d 336, 338 (1998) (footnote omitted).
Because the procedure in the state courts afforded the petitioner an opportunity to litigate fully his Fourth Amendment claim, and because the petitioner was able to completely avail himself of that opportunity, the rule in Stone v. Powell prevents this Court from reviewing further the petitioner's claim that evidence used to convict him was obtained in violation of the Fourth Amendment.
B.
The petitioner next claims that he is entitled to habeas relief because his convictions for both carjacking and armed robbery violate his rights under the Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution. The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This constitutional provision protects individuals not only from successive trials, but also prohibits multiple punishments for the same offense. Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir. 1997). However, "a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause." Albernaz v. United States, 450 U.S. 333, 344 n. 3 (1981). See also United States v. Kuhn, 165 F. Supp.2d 639, 642 (E.D.Mich. 2001).
The petitioner contends here that the crimes of carjacking and armed robbery, as defined by the state legislature, are essentially the same, and that to convict him of both violates the Double Jeopardy Clause. If the Court were to presume for a moment that the petitioner's armed robbery and carjacking convictions arose from the single act of stealing Steve Michalsky's automobile, then the analysis of this issue would require the Court to determine "whether [the legislature] intended to punish each statutory violation separately." Pandelli v. United States, 635 F.2d 533, 536 (6th Cir. 1980) (quoting Jeffers v. United States, 432 U.S. 137, 155 (1977)). "To determine the [legislative] intent it is necessary to examine the statutory language and the legislative history, as well as to utilize other techniques of statutory construction." Pandelli, 635 F.2d at 536. If the legislative intent is not clearly expressed or cannot be discerned by accepted techniques of statutory construction, then the Court must analyze the two crimes to determine if the elements completely overlap according to the test expressed by the Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), which remains the standard to determine whether double jeopardy prohibits multiple punishments for the same criminal act. United States v. Barrett, 933 F.2d 355, 360 (6th Cir. 1991); Kuhn, 165 F. Supp.2d at 642-43. "The Court focuses on the statutory elements of the two crimes with which a defendant has been charged, not on the proof that is offered or relied upon to secure a conviction. . . . If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Barrett, 933 F.2d at 360-61 (internal citations and quotes omitted). Thus, the Double Jeopardy Clause is not violated merely because the same evidence is used to establish more than one statutory violation. See United States v. Dixon, 509 U.S. 688, 696 (1993) (holding that the question is "whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution.").
The state court of appeals, however, observed that the petitioner's two convictions did not arise from the same act of stealing the car. Rather, the state court found that the convictions arose from separate acts of taking different property. "Defendant's carjacking conviction stems from the taking of the automobile at gunpoint, whereas defendant's armed robbery conviction stems from the subsequent taking of the victim's wallet and money at gunpoint." People v. Parker, 230 Mich. App. at 342, 601 N.W.2d at 339. It is also important to note that property (wallets and money) was taken from two separate victims. From the record, then, it appears that the petitioner was convicted of armed robbery and carjacking based on two separate criminal acts, each subject to punishment by the Michigan legislature. Two convictions under those factual circumstances do not violate the Double Jeopardy Clause. See Kuhn, 165 F. Supp.2d at 646-47.
The state court of appeals also analyzed the armed robbery and carjacking statutes under Blockburger's same-evidence test, and found that the two statutes contain different elements, thus authorizing multiple punishments. Parker, 230 Mich. App. at 344-45, 601 N.W.2d at 339-40. The armed robbery statute states:
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison.
Mich. Comp. Laws § 750.529. The statute essentially requires proof of the elements of an assault, the use of a dangerous weapon, and a larceny. The carjacking statute states:
(1) A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle as defined in section 412 from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years.
(2) A sentence imposed for a violation of this section may be imposed to run consecutively to any other sentence imposed for a conviction that arises out of the same transaction.
Mich. Comp. Laws § 750.529a. This crime is established by proof of an assault (i.e., use of "force or . . . threat of force") and a larceny, the object of which is a motor vehicle.
The state court of appeals correctly observed that the use of a dangerous weapon is a material feature which distinguishes carjacking from armed robbery, and thus allows the conclusion that the state legislature intended to punish separately distinct evils when it enacted the two statutes. The question would be more problematic, however, if, for example, a criminal defendant were convicted of both unarmed robbery and carjacking for a single theft. The Sixth Circuit noted in Pandelli that the Supreme Court modified the application of the Blockburger test in Whalen v. United States, 445 U.S. 684 (1980), and Illinois v. Vitale, 447 U.S. 410 (1980), especially when dealing with overlapping statutes that define multiple ways by which they may be violated and contain alternative elements. "[B]efore [the Court] applies the [Blockburger] test to a multi-purpose criminal statute, . . . it must construct from the alternative elements within the statute the particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply." Pandelli, 635 F.2d at 537. That question is not presented on the facts before the Court and need not be decided today.
The conclusion of the Michigan Court of Appeals that the petitioner's convictions for both armed robbery and carjacking for the armed theft of an automobile from one victim and the armed theft of wallets and money from the car owner and his passanger was not contrary to, nor did it constitute the unreasonable application of, federal law as determined by the Supreme Court. See United States v. Gladfelter, 168 F.3d 1078, 1084 (8th Cir. 1999) (finding no double jeopardy violation where defendant performed separate takings using separate acts of intimidation and violence, and his convictions for armed robbery and carjacking were predicated upon two statutes each which required proof of an element the other did not). The petitioner, therefore, is not entitled to habeas relief on this claim.
III.
The petitioner's Fourth Amendment claim was fully litigated in the state courts. The petitioner's convictions for both armed robbery and carjacking in this case do not subject him to double jeopardy.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motions for an evidentiary hearing [dkt #13] and appointment of counsel [dkt #16] are DENIED AS MOOT.