Opinion
Civil No. 99-CV-73363-DT.
October 24, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Charles Everett Rich, ("petitioner'), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence for criminal sexual conduct, first degree. M.C.L.A. 750.520b(1)(d)(ii); M.S.A. 28.788 (2)(1)(d)(ii). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner and Daniel Lee Bruce were charged with sexually assaulting Gary Wilson, Sr. in his apartment in Lapeer, Michigan on September 28, 1991. Following a jury trial, both defendants were found guilty as charged.
The evidence at trial established that the victim had permitted Bruce to move into his apartment two months prior to the incident. Petitioner, who assisted Bruce with his drywall business, occasionally spent the night at Wilson's apartment also.
On September 27, 1991, Wilson fell asleep in his apartment after drinking alcohol. While he was sleeping, someone damaged the interior of his apartment. The damage was discovered by the victim's son, Gary Wilson, Jr., who also resided at the apartment, upon his return home. Wilson, Jr. also noticed Bruce and petitioner asleep on the floor when he discovered the damage. The police were summoned to the apartment, but no arrests were made. The next morning, however, Bruce and petitioner woke up Wilson, Sr. and told him that Bruce would pay for damages to the apartment. Wilson, Sr. went back to sleep, but was persuaded later in the day by his son to file a police report concerning the damages to the apartment. Wilson, Sr., his son, and his son's girlfriend, Melissa Muldoon, went to the police station to make a report. Officer Curtiss of the Lapeer Police Department was unable to take a report at the time, but asked the victim to return to the police station at 2:00 p.m. to make a report.
Upon returning to the apartment building, Wilson, Sr., his son, and Muldoon encountered Bruce's ex-wife and informed her that charges had been pressed against Bruce. Wilson, Jr. was interested in keeping Bruce away from the apartment because Bruce had hit him before at the apartment and Wilson, Jr. had actually moved out at one point because he feared Bruce.
Bruce's wife found Bruce and petitioner at Andrea Angle's home. Angle was the mother of petitioner's children. When Bruce heard that charges had been pressed against him, he indicated in petitioner's presence that he was going to kill the victim.
Bruce and petitioner went over to the victim's apartment. Muldoon was in the bedroom of the apartment awaiting for Wilson, Jr. to finish taking a shower when she heard Bruce and petitioner coming up the stairs of the building. Muldoon and Wilson, Jr. decided to hide in the closet of the bedroom because they feared the two men. Both Muldoon and Wilson, Jr. indicated that they came out of the closet three different times after Bruce and petitioner entered the apartment and witnessed part of the subsequent assault upon Wilson, Sr.
Bruce and petitioner entered the apartment yelling and screaming. Bruce began slapping the victim and yelling at him for calling the police. While beating the victim, Bruce ripped off the victim's pants and shirt and stated "we're going to fuck you just like you fucked us". Both Bruce and petitioner began hitting him with their fists. Petitioner then held the victim down while Bruce anally raped him. After Bruce finished sexually assaulting the victim, petitioner also anally raped the victim. Parts of the sexual assault were witnessed by Wilson, Jr. and Muldoon, who left their hiding place on three separate occasions and went to the edge of the hallway, from where they were able to look into the living room where the assault was taking place. Muldoon indicated that when she looked into the living room, petitioner's pants were down. Wilson, Jr., however, testified that when he looked on the same occasion, petitioner's pants were up.
While the assault was taking place, Officer Curtiss arrived to take photographs of the damage to the apartment from the previous night's incident. Officer Curtiss had previously been to the apartment at 2:00 p.m. but no one had responded to the door when he knocked. When Officer Curtiss arrived a second time, he could hear loud noises and screaming. Officer Curtiss called for backup to assist him with the call. When other police officers arrived, Curtiss and several of the officers went to the apartment and knocked on the door. The door opened a crack and petitioner appeared at the door. Petitioner informed the officers that they couldn't come into the apartment and closed the door on them. Officers had to forcibly open the door to gain entry to the apartment.
When police entered, the victim was found lying on the floor naked, attempting to get up and put his clothes back on. Bruce was standing over the victim and had a belt in his hand. According to the various officers, Bruce's pants were either undone, unzipped, or pulled down. One officer indicated that petitioner's pants were unzipped but done up, while another officer indicated that petitioner's pants were undone and unzipped.
With great difficulty, the police managed to get Bruce and petitioner to leave the victim's apartment. As Bruce was leaving, he told the victim that: "I'll fuck you again". Officer Cook overheard Bruce state that he had forced the victim to perform fellatio on him. Inside the apartment, the victim told Sergeant McPherson that Bruce and petitioner had raped him. Based upon this information, the two men were arrested fifteen minutes later in a shopping center next to the apartment.
Sometime that evening, the victim went to the Lapeer County Sheriff Department to see if Bruce and petitioner were still in jail. The victim admitted at trial that he did not tell the officer he spoke to, Deputy John Corkins, that he had been raped. Deputy Corkins sent him to speak with Lieutenant Fischhaber. The victim admitted that he gave a statement to Lieutenant Fischhaber, in which he told the officer that there had been no penetration.
The victim was examined at the hospital on the night of the incident. He twice refused to consent to an examination. After the police talked to the victim, he finally agreed to an examination. An examination revealed that he had been badly beaten around the neck, back, and arm and his eyes were black and blue. However, neither the nurse or doctor could find any rectal trauma, either visually or by examination. The doctor noted that the victim's sphincter muscle was relaxed. The victim admitted that he told both the nurse and doctor that he had not been raped. The victim indicated that he had not told anyone initially that he had been raped because he was ashamed and embarrassed.
The co-defendant testified at trial. He admitted going to the victim's apartment because he was mad that a police report had been filed against him. He admitted slapping the victim around but denied sexually assaulting him. Bruce claimed that the victim's pants came down while the two men were wrestling on the floor. Petitioner also testified at trial and denied that either he or Bruce had sexually assaulted the victim.
Petitioner's conviction was affirmed on appeal. People v. Rich, 153365 (Mich.Ct.App. September 1, 1995); lv. den. 452 Mich. 861; 550 N.W.2d 793 (1996). Petitioner thereafter filed a motion for relief from judgment, which was denied by the trial court on December 3, 1996. People v. Rich, Lapeer County Circuit Court # 91-004482-FC. The Michigan appellate courts denied petitioner leave to appeal. People v. Rich, 201036 (Mich.Ct.App. February 23, 1998); lv. den. 459 Mich. 931; 615 N.W.2d 737 (1998). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The petitioner was deprived of his Sixth Amendment right to effective assistance of trial counsel.
II. The petitioner was denied a fair and impartial trial guaranteed under both the state and federal constitutions by the prosecutors repeated misconduct.
III. Defendant was deprived of his liberty without due process of law under the state and federal constitutions by the deficient performance of appellate counsel.
II. STANDARD OF REVIEW
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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 120 S.Ct. 1495, 1523(2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522.
III. DISCUSSION
A. Claim #1. The ineffective assistance of counsel claim.
A. Standard of Review
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
B. The individual claims
1. Failure to adequately cross-examine the victim or the other witnesses.
Petitioner initially claims that counsel was ineffective for failing to adequately cross-examine the victim or the other witnesses concerning inconsistencies in their testimony. The failure by trial counsel to cross-examine a prosecution witness can constitute ineffective assistance of counsel. Hence v. Smith, 37 F. Supp. 970, 983 (E.D. Mich. I 999)(Gadola, J.). However, courts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel. Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997).
In the present case, defense counsel's performance did not constitute ineffective assistance of counsel where the record shows that defense counsel carefully cross-examined the prosecution witnesses and in his closing argument emphasized the inconsistencies in the testimony of various witnesses. See Krist v. Foltz, 804 F.2d 944, 948-949 (6th Cir. 1986). Counsel thoroughly cross-examined the victim about the fact that he initially failed to tell any of the police officers or medical personnel at the hospital that he had been raped or that there had been any sexual penetration. Counsel thoroughly cross-examined both the treating doctor and the nurse about the fact that there was no rectal trauma, tears, or abrasions. Counsel confronted Officer Cook, who testified that petitioner's pants were undone at the time that the police entered the victim's apartment, with his prior police statement, which did not mention that petitioner's pants were undone. When Sergeant McPherson testified that the victim told him at the crime scene that he had been raped by Bruce and petitioner, counsel was able to get Sergeant McPherson to admit on cross-examination that the police had not arrested the two men at the scene, but had actually told them to leave the premises. Counsel argued all of these inconsistencies in his closing argument to the jury.
Trial Transcript, hereinafter "T"., Vol. I, pp. 179-186.
T. II, pp. 73, 89.
Id. at 127-128.
Id. at pp. 144-145.
T. III, pp. 197-209.
Where, as here, trial counsel conducts a thorough and meaningful cross-examination of a witness, counsel's failure to employ a trial strategy that, in hindsight, might have been more effective does not constitute unreasonable performance for purposes of an ineffective assistance of counsel claim. Cardwell v. Netherland, 971 F. Supp. 997, 1019 (E.D. Va. 1997). The failure of trial counsel to develop every bit of testimony through all available inconsistent statements to impeach witnesses is not ineffective assistance of counsel where the omissions were not sufficient to demonstrate unprofessional or improper assistance of counsel and where petitioner was not prejudiced as a result of the alleged errors. See Poyner v. State of Iowa, 990 F.2d 435, 438 (8th Cir. 1993). In reviewing the trial court record, this Court concludes that petitioner's trial attorney adequately impeached the prosecution witnesses and brought the inconsistencies in their testimony to the attention of the jury, both through cross-examination and in closing argument.
2. Failure to present expert testimony about the lack of rectal trauma to the victim.
Petitioner next claims that his attorney was ineffective for failing to call an expert witness to testify that the lack of rectal trauma to the victim was evidence that no anal penetration had taken place. Petitioner presents the affidavit of Dr. Jack Kartaginer, which he also submitted to the state courts. In the affidavit, Dr. Kartaginer states that he was of the opinion that "unless lubrication was used prior to insertion into the anus or ejaculation occurred immediately after insertion, it would be unlikely that the patient would have no tears or abrasions in the rectal area as a result of the two episodes of assault stated." Dr. Kartaginer also stated that the two episodes of anal penetration would not, by themselves, have caused the relaxation of the victim's sphincter muscle, which the treating doctor had discovered during his examination of the victim following the attack.
Attached to Petitioner's Traverse and Reply to the Answer, Exhibit B.
In denying this part of petitioner's claim, the trial court believed that it was unnecessary for counsel to call an expert witness, in light of the fact that the doctor who testified indicated that there was no evidence of tearing to the anal canal. The Michigan Court of Appeals also rejected this claim, finding that the proffered expert testimony was too equivocal and that the evidence of petitioner's guilt was overwhelming.
Mot. T., June 14, 1993, p. 81.
In the present case, counsel elicited from both the treating doctor and nurse the fact that there was no evidence of rectal trauma or tears or abrasions to the victim's anal canal. Counsel argued this point repeatedly in closing argument. A similar claim was rejected in Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993), where the Fourth Circuit held that counsel for a defendant charged with capital murder and rape was not ineffective for failing to request the appointment of a forensic pathologist for the purpose of testifying that the absence of lacerations or bruises around the victim's genitalia was consistent with consensual intercourse. In so ruling, the Fourth Circuit indicated that it had no hesitation in stating that "it does not take a forensic pathologist to conclude that absence of lacerations or bruises around a rape victim's genitalia is evidence consistent with consensual intercourse." Id. at 1574.
Similarly, in this case, defense counsel elicited the fact that there was no rectal trauma or abrasions to the victim's anal canal. It does not take an expert to conclude that the lack of such trauma could indicate the absence of a forcible sexual assault. Therefore, counsel was not ineffective for failing to obtain an expert to so testify. In addition, Dr. Kartaginer's statement to the effect that the victim's lax sphincter muscle would not have been caused solely by the sexual assault would not necessarily exonerate petitioner, because it did not preclude a sexual assault from having taken place. Therefore, counsel was not ineffective for failing to present this testimony.
Moreover, there was testimony that Bruce and petitioner may have used saliva to lubricate the victim prior to the assault. T. II, p. 35.
3. Failure to call Deputy John Corkins to testify.
Petitioner next claims that counsel was ineffective for failing to call Deputy John Corkins to testify at trial that the victim told him when he initially came to the Lapeer County Sheriff's Department following the assault that he had not been raped.
A habeas petitioner who claims that counsel was ineffective for failing to call certain persons as witnesses must prove that the witnesses would have testified favorably to the defense. Johnson v. Nagle, 58 F. Supp.2d 1303, 1356-1357 (N.D. Ala. 1999). First, it is unclear how favorable Deputy Corkins' testimony would have been for the defense. At the hearing on petitioner's ineffective assistance of counsel claim, Deputy Corkins did testify that the victim told him that he had not been raped. However, Deputy Corkins also indicated that the victim informed him that there had been a sexual assault. In light of the fact that Deputy Corkins would have testified that the victim came into the station to report a sexual assault, it is unlikely that his testimony would have been favorable to the petitioner.
Id. at pp. 24-27.
In addition, there was no need for counsel to call Deputy Corkins to testify, because the victim admitted on cross-examination that he didn't tell Deputy Corkins that he had been raped. Counsel also cross-examined the victim about the fact that he had failed to tell other police officers and medical personnel that he had been raped. Given defense counsel's effective cross-examination, there is no reasonable probability that the introduction of the victim's actual prior statements to the police, through the testimony of Deputy Corkins, would have caused greater damage to the witness's credibility, and therefore, petitioner was not prejudiced by the failure to impeach the victim by calling Deputy Corkins to testify about the prior inconsistent statements. See Jenkins v. Byrd, 103 F. Supp.2d 1350, 1376 (S.D. Ga. 2000).
T. I, p. 181.
Id. at pp. 179-186.
4. Allowing petitioner to testify.
Petitioner next contends that counsel was ineffective for allowing him to take the stand, particularly to support the co-defendant's version of events. Defense counsel's decision to call petitioner as a witness in his own defense was not ineffective assistance of counsel. It was not unreasonable for counsel to believe, particularly in light of the facts in this case, that petitioner was unlikely to be acquitted unless he took the stand, and any harm to petitioner from his testimony probably resulted from his perjury, for which defense counsel cannot be faulted. Flamer v. State of Delaware, 68 F.3d 710, 730-731 (3rd Cir. 1995); See also United States v. Johnson-Wilder, 29 F.3d 1100, 1105 (7th Cir. 1994) (trial counsel's allowing defendant to take the stand was not objectively unreasonable, as having the defendant testify may have been his only hope of avoiding conviction).
In addition, petitioner has failed to show that his trial counsel's strategy of calling him to the stand was prejudicial, for purposes of an ineffective assistance of counsel claim, because petitioner has failed to demonstrate a reasonable probability that had he not testified, the jury would not have convicted him or that his conviction would have been reversed on the basis of insufficient evidence. Motley v. Collins, 18 F.3d 1223, 1227 (5ih Cir. 1994).
5. Failure to object to the introduction of evidence concerning the damage to the victim's apartment.
Petitioner next alleges that counsel was ineffective for failing to object to any testimony concerning the damages to the victim's apartment, particularly where the examining magistrate at the preliminary examination dismissed the charge of malicious destruction of property over $ 100.00 against petitioner and the co-defendant. The Michigan Court of Appeals rejected this claim, finding that since this evidence was admissible under People v. Vandervliet, 444 Mich. 52, 74; 508 N.W.2d 114 (1993), any objection would have been futile.
A defense counsel's failure to object to "other crimes' evidence is insignificant, if it is unlikely that the objection would have been sustained. See Burris v. Farley, 845 F. Supp. 636, 663 (ND. Ind. 1994). In light of the Michigan Court of Appeals' finding that such evidence would have been admissible under Michigan law, petitioner is unable to show that counsel's failure to object to this evidence was defective. Additionally, trial counsel's failure to object to the introduction of this "other crimes' evidence that was neither extensive or detailed was not ineffective, as the failure to object could have been a reasonable trial strategy, since an objection could have highlighted the evidence to the jury. Buehl v. Vaughn, 166 F.3d 163, 175-176 (3rd Cir. 1999). Moreover, petitioner is unable to demonstrate prejudice, since this evidence was only a small part of the inculpatory evidence presented, and there is no reasonable probability that the result of the trial would have been different if the evidence had been excluded. Id.
6. Counsel failed to seek jury instructions on impeachment.
Petitioner next contends that counsel was ineffective for failing to obtain cautionary instructions during trial and a final jury instruction on impeachment of the witnesses. Petitioner appears to be alleging that the trial court should have been asked to instruct the jury that any of the witnesses' prior inconsistent statements could not be used as substantive evidence, but only for impeachment purposes. Because the evidence in this case supports petitioner's criminal sexual conduct conviction, even without considering the witnesses' prior inconsistent statements as substantive evidence, counsel's failure to request a limiting instruction did not render the result at trial unreliable or fundamentally unfair, so as to support a finding of ineffective assistance of counsel. Fenske v. Thalacker, 60 F.3d 478, 482 (8th Cir. 1995).
7. Failure to adequately investigate the case.
Petitioner next alleges that counsel was ineffective for failing to interview key witnesses, failing to interview the state's medical expert, and failing to familiarize himself with a basic understanding of the medical evidence in this case. To provide the effective assistance of counsel, an attorney must make a reasonable investigation into the facts and circumstances of the crime, or make a reasonable decision that a particular investigation is not necessary. Hence v. Smith, 37 F. Supp.2d at 984. A particular decision not to investigate must be directly assessed for reasonableness in all of the circumstances, applying a heavy measure of deference to counsel's professional judgment, when addressing an ineffective assistance of counsel claim. Id., citing to Lewis v. Alexander, 11 F.3d 1349, 1352 (6th Cir. 1993). A distinction can be made between cases where there was a total failure by counsel to investigate and those cases where the defendant is merely dissatisfied with the degree of his attorney's investigation into possible defenses. Lewis, 11 F.3d at 1353; Hence, 37 F. Supp.2d at 984.
In the present case, petitioner claims that counsel failed to adequately familiarize himself with the medical evidence to elicit exculpatory evidence in petitioner's favor. The Court disagrees. Counsel cross-examined the treating doctor and nurse about the absence of rectal trauma or lacerations and bruises to the victim's anal canal and argued this fact at length to the jury. Counsel's alleged ineffectiveness in failing to investigate the medical evidence or the witnesses of this case did not deprive petitioner of his constitutional right to the effective assistance of counsel absent a showing of prejudice. Chadwick v. State, 951 F.2d 863, 867 (8th Cir. 1991). In light of the overwhelming evidence of guilt in this case, petitioner is unable to show that he was prejudiced by counsel's failure to better familiarize himself with the medical evidence in this case.
8. Failing to object to the admission of the victim's clothing.
Petitioner next contends that counsel was ineffective for failing to object to the admission of the victim's clothing, on the ground that the chain of custody had been broken. Because petitioner has failed to show either a gap in the chain of custody of the clothing or that the clothing had been altered, any objection would have been meritless. Payne v. Johnson, 1998 WL 664973, * 4 (N.D. Tex. September 21, 1998) (citing to Lockhart v. McCotter, 782 F.2d 1275, 1280-81 (5th Cir. 1986)). Counsel was therefore not ineffective for failing to object to the admission of the victim's clothing into evidence.
9. Counsel failed to object to the prosecutor's misconduct.
Petitioner lastly claims that counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct. Because this Court concludes that the prosecutor's remarks in closing argument did not prejudice petitioner so as to deprive him of a fair trial, See Issue II, supra, petitioner's claim that counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's remarks must also be rejected. United States v. Nwankwo, 2 F. Supp.2d 765, 770 (D. Md. 1998); Russ v. Stegall, 2000 WL 791753, * 6 (E.D. Mich. June 8, 2000)(Cohn, J.).
C. Conclusion
Petitioner has failed to establish that he was deprived of the effective assistance of counsel. Because petitioner has failed to establish both that his counsel was deficient or that he was prejudiced by counsel's alleged omissions, the state appellate court's determination that petitioner was not denied ineffective assistance of counsel was a reasonable application of the standard in Strickland. Accordingly, petitioner is not entitled to habeas relief on this claim. Welch v. Burke, 49 F. Supp.2d 992, 1010 (E.D. Mich. 1999)(Cleland, J.).
B. Claim #2. The prosecutorial misconduct claim.
A. Standard of Review.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). Because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985)(Cohn, J.).
When analyzing a claim of prosecutorial misconduct, a court must initially decide whether the challenged statements were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). If the conduct is improper, the district court must then examine whether the statements or remarks are so flagrant as to constitute a denial of due process and warrant granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra, 4 F.3d at 1355-1356.
B. Specific Instances of Misconduct.
1. The prosecution failed to present evidence in support of his opening statement.
Petitioner initially contends that the prosecutor committed misconduct by mischaracterizing the evidence in his opening statement. Petitioner first claims that the prosecutor mischaracterized the evidence by stating that when Officer Curtiss pulled up to the victim's apartment, he heard yelling, screaming, and someone getting struck. Petitioner contends that this was misleading because Officer Curtiss only testified that he heard yelling and screaming, not someone being struck. Petitioner also claims that the prosecutor indicated in his opening statement that both Bruce and petitioner were seen with erections during the assault, when in fact, there was no evidence that petitioner had an erection.
Not every variance between the advanced description of the prosecutor in the opening statement of the summary of the testimony that he or she expects to introduce and the actual presentation constitutes reversible error, when a proper limiting instruction is given. Frazier v. Cupp, 394 U.S. 731, 736 (1969). In the present case, even though Officer Curtiss did not hear someone being struck, there was testimony, including from petitioner himself, that Bruce hit the victim. Because there was testimony that the victim was being struck, the prosecutor's statement was not so prejudicial so as to deny petitioner a fair trial. With respect to the prosecutor's argument concerning petitioner having an erection, there was testimony from the victim's son that petitioner's penis was erect. Thus, there was no variance between the prosecutor's opening remarks and the testimony at trial. Petitioner is unable to show that he was prejudiced by the prosecutor's remarks. In the present case, the prosecutor's brief remarks in his opening statement were not so substantial as to infect the entire trial, particularly where the trial court told the jury that the remarks of the attorneys were not to be considered as evidence and they were only to consider the sworn testimony of the witnesses as evidence, and the trial court later instructed the jury that they were the sole judges of the facts. Fell v. Rafferty, 736 F. Supp. 623, 633 (D.N.J. 1990); Makidon v. Elo, 2000 WL 791795, *5 (E.D. Mich. May 26, 2000)(Borman, J.).
T. II, p. 66.
2. Failed to correct testimony that he knew to be false.
Petitioner next contends that the prosecutor failed to correct testimony that he knew to be false. On cross-examination, petitioner's attorney asked Gary Wilson, Jr. about the fact that when questioned by Lieutenant Fischhaber, he had told the officer that he really didn't know whether Bruce or petitioner had actually penetrated his father. On redirect examination, Wilson admitted that he had answered "no" when Fischhaber had asked him whether he observed an erection, but claimed that he didn't know what the term erection was, confusing it with a climax. Petitioner argues that because Wilson, Jr. was nineteen years old and dating a woman, it would be "inconceivable" for him not to know the difference.
Id. at pp. 59, 65.
To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). Petitioner's claim fails in all three respects. First, petitioner has failed to show that Wilson, Jr.'s testimony that he confused the word erection with the word climax was false. Secondly, he has offered no evidence to show that the prosecutor knew this statement to be false. Lastly, petitioner has failed to show that Wilson Jr.'s statement was material to the issue of petitioner's guilt.
3. Vouching for the witnesses' credibility.
Petitioner next claims that the prosecutor vouched for the victim's credibility in his closing argument. The test for improper vouching for a witness is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987); Russ v. Stegall, 2000 WL 791753, *3 The Court has reviewed the complained of remarks and concludes that such comments could not lead a jury to reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility.
T. III, pp. 153, 169, 211.
4. The prosecutor made inflammatory misstatements of fact in his closing argument.
Petitioner next claims that the prosecutor made several misstatements of fact or mischaracterized the testimony in his closing argument. Petitioner first argues that the prosecutor falsely testified how bruises got on the victim's arm, when no evidence was produced in regards to this bruise. In the present case, there was some evidence presented that the victim was assaulted by the co-defendant and petitioner and a subsequent medical examination revealed numerous bruises on his body. The prosecutor's comment does not entitle petitioner to habeas relief because the jury was free to accept or reject the inference that the bruises were caused by the assault depending upon all the evidence. Howard v. Gavin, 844 F. Supp. 173, 176 (S.D.N Y 1994). Petitioner's related claim that the prosecutor exaggerated the opening of the victim's door by petitioner from six to eighteen inches is likewise rejected.
Id. at p. 156.
Petitioner next claims that the prosecutor falsely argued that the witnesses saw petitioner with an erection. As mentioned above, Gary Wilson, Jr. claimed that he observed petitioner's penis to be erect. Petitioner also claims that the prosecutor falsely indicated that some of the police officers heard the victim say that he was raped. In point of fact, Sergeant McPherson testified at trial that he did hear the victim state that he had just been raped. Therefore, the prosecutor did not incorrectly restate the testimony.
T. II, p. 142.
5. Commented on petitioner's silence.
Petitioner next contends that the prosecutor improperly commented on his right to remain silent and his right against self-incrimination during closing argument, by mentioning the fact that while being interviewed by Officer Curtiss, after being given his Miranda rights, petitioner denied damaging the apartment or hitting the victim, whereas at trial he testified differently. Although it is a constitutional violation for the prosecution to use a defendant's post-arrest silence to impeach exculpatory testimony given by the defendant at trial, See Doyle v. Ohio, 426 U.S. 610, 619 (1976), Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. Anderson v. Charles, 447 U.S. 404, 408 (1980). Here, the prosecutor did not comment in his closing argument on the petitioner invoking his right against self-incrimination. Instead, the prosecutor focused on the inconsistencies between petitioner's statement to the police and his testimony in court, which was proper.
T. III, p. 161.
6. Improperly shifted the burden of proof.
Petitioner next indicates that the prosecutor improperly shifted the burden of proof by commenting that defense counsel presented no evidence to show a motive for the victim to fabricate this story. This argument did not shift the burden of proof to petitioner because any possible prejudice which might otherwise have resulted from the comment was cured by the trial court's instructions regarding the burden of proof. Lugo v. Kuhlmann, 68 F. Supp.2d 347, 369 (S.D.N.Y. 1999); Russ v. Stegall, 2000 WL 791753,* 4.
T. III, p. 168.
C. Conclusion
Petitioner was not deprived of a fair trial though prosecutorial misconduct.
Claim #3. Ineffective Assistance of Appellate Counsel.
Petitioner lastly claims that appellate counsel was ineffective for failing to raise the prosecutorial misconduct claim on his direct appeal and for abandoning some of his ineffective assistance of counsel claims.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, court appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). An attorney's failure to present a nonmeritorious issue on appeal does not constitute ineffective assistance of counsel. Daniel v. Overton, 845 F. Supp. 1170, 1176 (E.D. Mich. 1994)(Gadola, J.).
Given that this Court has determined that petitioner's ineffective assistance of trial counsel issue is without merit, it would be impossible for petitioner to establish that appellate counsel's failure to raise all of the ineffective assistance of trial counsel claims on appeal was prejudicial. See United States ex. rel. Thirston v. Gilmore, 986 F. Supp. 491, 502 (N.D. III. 1997). Moreover, because petitioner has failed to establish that his claim of prosecutorial misconduct was clearly meritorious, his appellate attorney was not constitutionally ineffective for failing to raise the issue on direct appeal. Hooks v. Ward, 184 F.3d 1206, 1222 (10th Cir. 1999). Because petitioner has failed to show that any of these issues were meritorious, he has failed to demonstrate that he was deprived of the effective assistance of appellate counsel.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.