Opinion
Case No. 99-CV-74411-DT
May 21, 2001
Richard B. Ginsberg, Esq.
John G. McBain, Esq.
OPINION
On September 9, 1999, Ronald Webb filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state convictions of second degree murder and felony-firearm. Petitioner's convictions stem from incidents that occurred on November 4, 1990, resulting in the death of his father, Ruben Webb, and his father's girlfriend, Susan Bateman. Petitioner was charged with open murder in connection with both victims. The jury ultimately found Petitioner not guilty by reason of insanity of second degree murder in connection with the death of his father, guilty but mentally ill of second degree murder in connection with the death of Ms. Bateman, and guilty of two counts of felony firearm. Petitioner was sentenced to twenty-five to fifty years imprisonment on the second degree murder conviction, as well as two concurrent years imprisonment each on the felony firearms convictions, to run consecutive with his second degree murder sentence.
This matter was referred to Magistrate Judge Steven D. Pepe for report and recommendation ("RR"). On November 29, 2000, Magistrate Judge Pepe issued an RR in which he concludes that Petitioner was deprived of his rights under the Compulsory Process Clause of the Sixth Amendment and therefore, Petitioner's request for relief should be granted. On December 15, 2000, both Petitioner and Respondent filed timely objections to the RR. Accordingly, this Court shall review de novo those portions of the RR that the parties find objectionable. See 28 U.S.C. § 636 (b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
The facts underlying this controversy have been thoroughly set forth in the RR, as well as the Michigan Supreme Court's opinion affirming Petitioner's convictions. See People v. Webb, 458 Mich. 265 (1998). For the sake of brevity, the Court will not repeat such efforts, but instead, include the relevant facts where appropriate in discussing the parties' objections.
Discussion
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern this case because Petitioner filed his habeas application after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA provides that:
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).
With respect to the "contrary to" clause, there are two ways in which a state court decision may be "contrary to" clearly established federal law. First, a state court decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law as set forth by the Supreme Court. Second, a state-court decision is contrary to clearly established federal law if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).
A federal habeas court making an "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Id. at 409, 120 S.Ct. at 1521. An unreasonable application of federal law, however, is different than an incorrect application of federal law. A federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Id. at 410, 120 S.Ct. at 1522. The term "clearly established federal law" refers to the holdings, as opposed to the dicta, of the United States Supreme Court's decisions at the time of the relevant state court decision. Id. at 412, 120 S.Ct. at 1523.
1. Psychiatric Testimony
Petitioner offered an insanity defense at trial. Pursuant to Michigan Compiled Laws § 768.20a(6), each expert prepared and submitted a pretrial report. In his report, Petitioner's psychiatric expert, Dr. Andrew S. Watson, M.D., listed thirty-seven documents that he had reviewed prior to meeting Petitioner. Based upon this information, as well as his personal interview with Petitioner, Dr. Watson concluded:
Section 768.20a(6) states:
Upon conclusion of the examination, the center for forensic psychiatry or the other qualified personnel, and any independent examiner, shall prepare a written report and shall submit the report to the prosecuting attorney and defense counsel. The report shall contain:
(a) The clinical findings of the center, the qualified personnel, or any independent examiner.
(b) The facts, in reasonable detail, upon which the findings were based.
(c) The opinion of the center or qualified personnel, and the independent examiner on the issue of the defendant's insanity at the time the alleged offense was committed and whether the defendant was mentally ill or mentally retarded at the time the alleged offense was committed.
MICH. COMP. LAWS § 768.20a(6).
As noted above, this [double homicide] was not deliberate and conscious activity, but was rather driven by unconscious forces over which he had no control. This lack of self-awareness, due to the factors outlined above, are the manifestations of mental illness required by law in an insanity pleading.
For the reasons stated above, it is my opinion that 1) Ronnie Webb can appropriately plead not guilty by reason of insanity; or alternatively 2) that he may be found to lack the intent to commit first degree murder.Webb, 458 Mich. at 268-69.
During his opening statement, defense counsel indicated that Dr. Watson would testify that Petitioner was mentally ill at the time of the shootings. At the end of defense counsel's opening statement, the prosecution moved to strike Petitioner's insanity defense, strike Dr. Watson as a witness, or limit Dr. Watson to the conclusions drawn in his pretrial report, which was simply that Petitioner's lack of self-awareness was a "manifestation of mental illness." The trial court refused the prosecution's motion to bar Petitioner's insanity defense. The trial court, however, limited Dr. Watson's testimony to that contained in his report. Specifically, the trial court ruled that Dr. Watson could not testify "to any clinical findings that [were] not listed in his report" or "to any facts, upon which the findings were based if they're not listed in his report." Id. at 271. The trial court later clarified its ruling by adding that Dr. Watson was precluded from testifying "on the basis of facts adduced by other witnesses during the trial." Id.
On appeal, the Michigan Supreme Court found that the trial court erred, as a matter of state law, in limiting Dr. Watson's testimony. Id. at 277-78. The supreme court, however, found such error to be harmless. According to the supreme court:
[T]hough the circuit court's rulings would have, if complied with, limited Dr. Watson's testimony, we find that the error was harmless. Despite the objections of the prosecutor and the trial court sustaining those objections, Dr. Watson provided full and detailed testimony in which he explained his views at length. Notably, the defendant has made no offer of proof regarding testimony that should have been admitted, and we have located no point in Dr. Watson's testimony where he was effectively precluded from making his point. Indeed, the jury's decision to find the defendant not guilty by reason of insanity, with regard to the killing of his father, bespeaks the jury's full understanding of Dr. Watson's views.Id. at 279.
In his petition for a writ of habeas corpus, Petitioner contends that his rights to compulsory process and due process under the Fifth, Sixth, and Fourteenth Amendments have been violated. (Pet. at 15-27). Specifically, Petitioner contends that the Michigan Supreme Court erred by "not applying the harmless error test for constitutional error." (Id. at 20). Magistrate Judge Pepe, agreeing with Petitioner, concluded that the Michigan Supreme Court violated Plaintiffs rights under the Compulsory Process Clause. (RR at 12-28). Respondent has filed a timely objection to the RR with respect to this issue only.
Contrary to Magistrate Judge Pepe's analysis, this Court does not find that the Michigan Supreme Court's ruling in this case implicates the Compulsory Process Clause. As Magistrate Judge Pepe correctly recognized, the Compulsory Process Clause grants a criminal defendant the right to call witnesses that are "material and favorable to his defense." (RR at 13) (citation omitted). With respect to evidentiary issues, the Compulsory Process Clause is typically implicated where an evidentiary rule excludes a specific type of evidence or testimony. For example, in United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), cited by Magistrate Judge Pepe, the Supreme Court addressed the issue of whether Military Rule of Evidence 707, which contained a per se rule against the admission of polygraph evidence in court martial proceedings, violated the Compulsory Process Clause. Other examples of evidentiary rules implicating the Compulsory Process Clause include state rules excluding all hypnotically refreshed testimony, state rules precluding all codefendants from testifying for each other, and state "voucher" rules preventing parties from impeaching their own witnesses. See id. at 315-316 (discussing cases).
Another situation in which the Compulsory Process Clause is implicated is where a defense witness is unavailable due to an act of the Government. For example, in United States v. Valenzuela-Bernarl, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), also cited by Magistrate Judge Pepe, the Supreme Court addressed whether the Government's act of deporting potential defense witnesses violated the Compulsory Process Clause.
Magistrate Judge Pepe also relies upon the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake involved a state's failure to provide an indigent defendant with access to a psychiatrist. As with the other cases cited by this Court, although it did not involve an evidentiary rule, Ake involved state action that prevented the defendant from assessing and presenting a particular type of evidence/testimony. Petitioner, however, was not denied access to a psychiatric expert. In any event, the Supreme Court decided Ake on due process grounds, not compulsory process grounds. See id. at 76, 87 n. 13, 105 S.Ct. at 1092, 1098 n. 13.
Petitioner, however, does not seek to challenge a state evidentiary rule excluding particular evidence or testimony. In fact, Michigan law specifically provides for psychiatric testimony. Rather, this case presents a situation in which the trial court has made an erroneous evidentiary ruling under state law. To that extent, this case is no different than if the trial court had made an erroneous hearsay ruling. Such errors do not implicate the Compulsory Process Clause; rather, such errors implicate the Due Process Clause.
It is clear that the trial judge's attempt to limit Dr. Watson's testimony was based upon an erroneous interpretation of Michigan Compiled Laws § 768.20(a). "`[E]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding.'" Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988)). To justify relief in habeas corpus, an evidentiary ruling must be of such an egregious nature that it results in a denial of fundamental fairness that amounts to a denial of due process. Brown v. O'dea, 227 F.3d 642, 645 (6th Cir. 2000); Cooper, 837 F.2d at 286.
This Court is satisfied that the trial court's error did not render Petitioner's trial fundamentally unfair or deny Petitioner his right to due process. First, the Court notes that Petitioner has repeatedly failed to offer with any specificity the content of Dr. Watson's testimony that he was prevented from presenting to the jury. See Mackey v. Dutton, 217 F.3d 399, 408-09 (6th Cir. 2000) (stating that the petitioner's failure to state with an specificity the content of excluded psychiatric expert's testimony was factor in favor of finding no due process violation).
Moreover, during his testimony, Dr. Watson stated that he "naturally" relied "much more heavily in many respects" on his interviews with Petitioner than on the documents listed in his report. (Trial Tr. at 1400). Dr. Watson also stated that he "read all those and they informed him some, . . .[b]ut I interviewed him for five hours, and he told me lots and lots and lots of things." (Id. at 1415-16) (emphasis added). Dr. Watson obviously considered the information he garnered through his interview with Petitioner much more important than the information presented in the thirty-seven documents attached to his report.
A complete review of Dr. Watson's testimony also convinces the Court that no due process violation has occurred. Dr. Watson testified that Petitioner attempted suicide at least once, and that Petitioner was contemplating suicide at the time of the shootings. (Id. at 1426). Dr. Watson also testified that during Petitioner's early childhood years, there was parental discord" regarding how the children should be raised, and that Petitioner's father was aggressive, punitive, assertive, and abusive toward his children and wife from the very beginning. (Id. at 1474). Dr. Watson also testified that Petitioner's family was referred for social service help around 1981, and that Petitioner was found at that time to have "poor impulse control." (Id. at 1477-78, 1500). In Dr. Watson's opinion, "indeed, that's the problem that has been present ever since." (Id. at 1500-01).
Dr. Watson further testified that Petitioner "was having trouble at home with his mother" and that "certainly [Petitioner] was a very difficult problem for his family," and was "shuttled back and forth by both parents." (Id. at 1501). Petitioner eventually started stealing money from his parents, forging his parents' checks, and using their credit cards, which his father would cover-up for him. (Id. at 1502). According to Dr. Watson, Petitioner's father "tried to buy love from his kids by giving them big expensive gifts," but would take the gifts back "if anything happened that he didn't like." (Id. at 1503). Petitioner's father would often withdraw from family therapy whenever it appeared that progress was being made. (Id. at 1504-05).
Dr. Watson also testified as to Petitioner's history of "acting-up behaviors," and that Petitioner's behavior over the years indicated "that there was becoming a fairly regular, systematic pattern of adjustment to any distress that hit him; that is, he becomes subject to impulsive behavior where he doesn't respond to the surroundings appropriately." (Id. at 1509-10). As an example, Dr. Watson testified that on one occasion when Petitioner was angry at his girlfriend he "trash[ed] her apartment; he just destroyed it; in his anger, just lost his cool completely." (Id. at 1510). In Dr. Watson's opinion, such "impulsive outbursts" began "back in second grade." (Id. at 1512). According to Dr. Watson, Petitioner never learned how to manage his frustration without hurting himself or other people. (Id. at 1514). "In short, [Petitioner] was growing up without any kind of control machinery to help him manage those impulses." (Id. at 1515).
Dr. Watson further testified that although everything appeared normal on the outside, Petitioner "was constantly worried about whether or not he was a lovable person, especially to his parents." (Id. at 1516). Dr. Watson recounted a number of "ominous happenings" that occurred just days before the fatal incident. (Id. at 1517-20). For example, after Petitioner's father had told him to move out of the house, which, according to Dr. Watson, Petitioner blamed on Ms. Bateman, Petitioner set fire to his father's house. (Id. at 1517). A couple of weeks later, Petitioner trashed his girlfriend's apartment, which Dr. Watson classified as "very impulsive," and an act of "just . . . lashing out madly in all directions at once." (Id. at 1521).
Petitioner's father then reiterated his desire that Petitioner move out of the house, at which time Petitioner decided to commit suicide. (Id. at 1521-22). Dr. Watson recapped the events surrounding the fatal incident, as well as his perceptions of what was going through Petitioner's mind at the time. (Id. at 1522-33). Dr. Watson testified that:
[U]nexpectedly his father and [Ms. Bateman] come back, and they burst into the room or come into the room suddenly, and [Petitioner] is sitting there with a gun playing with suicide. And my interpretation ... is that his father disrupted the last chance he had to establish that he was a person who mattered who's now dead on the floor and, you know, here's to you, Dad. And that triggered — that was the last straw on the camel's back of his fury, and he bursts out in an uncontrolled, unconscious rage, savage rage, and he shot off four shots, all of them striking the two people who died. But his father was not killed by those shots.
. . . [I]ndeed, the central evidence to me that [Petitioner] was out of control, he was without capacity to conform, that he was flying blindly, that he was insane, is about what happened with the death of his father.
(Id. at 1525). According to Dr. Watson, Petitioner had no memory of the shootings or the subsequent beating to death of his father. (Id. at 1526-27).
In Dr. Watson's words, such conduct was a "savage outburst of uncontrol." (Id. at 1533). As Dr. Watson testified:
Now, if you ask me where did his mind turn off in there, my hunch is from the moment he jumped up and started firing he was probably not in contact with reality; namely, all the factors that were present he should be doing business with to make such a judgment as to kill his father and his father's girlfriend. The most vivid proof of this lies in how he handles the smashing of the face. That to me is vivid, vivid, powerful evidence of operating on the blind drive of his unconscious emotions, his instinctual self uncontrolled; absolutely uncontrolled.
(Id. at 1535). Dr. Watson testified that Petitioner was mentally ill as defined by Michigan law, that his "memory was absent, totally devoid of reality" and was "out of touch with judgment, " that Petitioner was "insane because he did not have the capacity to conform his behavior to the requirements of law, " and that Petitioner "did not have the capacity to appreciate the requirements of law or to conform his behavior to it, to put it flatly." (Id. at 1537-38).
During Dr. Watson's testimony, the prosecutor specifically objected to the following:
(1) Dr. Watson's statements inferring that Petitioner's father had also been abused as a child, which was overruled (Id. at 1475-76);
(2) Dr. Watson's referral to the diagnosis of a school social worker in May of 1991, which was withdrawn by the prosecution (Id. at 1477);
(3) Dr. Watson's statement that Petitioner was referred to the school social worker for a "serious disciplinary problem, " which was overruled (Id. at 1480-81);
(4) Dr. Watson's statement that treating agencies had made several "negative predictions, ominous predictions" about Petitioner's father withdrawing from treatment, which was sustained by the trial court (Id. at 1505-07);
(5) Dr. Watson's statement regarding the prognosis of the Family Services in 1984, which was sustained (Id. at 1509);
(6) Dr. Watson's testimony regarding a clinician's statement, which was overruled by the court (Id. at 1511);
(7) Dr. Watson's speculation as to the source of a wound on Petitioner's father's arm, which was sustained (Id. at 1527); and
(8) Dr. Watson's attempt to refer to an outline of his testimony that was not provided in his report or to the prosecution before trial, which the trial court never ruled on and Dr. Watson ultimately did not refer to it during his testimony (Id. at 1535-37).
As indicated, only three of these objections were sustained by the Court. After a thorough review of Dr. Watson's testimony, the Court is satisfied that although the trial court may have erred as a matter of state law, such error did not result in a fundamental miscarriage of justice.
In essence, both Petitioner and Magistrate Judge Pepe contend that the trial court's error was patently prejudicial or harmful given "the internal inconsistency between the jury's determination that [Petitioner] was insane when he killed his father but sane when he killed his father's girlfriend." (Pet. at 26; RR at 27). According to Petitioner, "[b]ecause the two killings were part of a continuous sequence of events which took a very short time (seconds, at most minutes) to complete, there does not appear to be any rational basis for distinguishing [Petitioner's] mental state during one killing from his mental state during the other killing." (Id.).
The Sixth Circuit, however, has held that "[i]nconsistent jury verdicts may not form the basis for setting aside proper convictions on other counts." United States v. Patrick, 965 F.2d 1390, 1397 (6th Cir. 1992) (citing United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)), vacated on other grounds, Mohwish v. United States, 507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 754 (1993). The general rule that has been firmly in place for almost seventy years is that consistency in verdicts on several counts of the same indictment is unnecessary where the defendant is convicted on some counts and acquitted on others. See Dunn v. United States, 284 U.S. 390, 392, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." Id.
Moreover, the evidence presented at trial, and acknowledged by defense counsel, clearly indicates that Petitioner's father and Ms. Bateman did not both die as a result of Petitioner's alleged "continuous sequence of events," i.e., the shots fired by Petitioner. Petitioner's father did not die as a result of the shots fired by Petitioner; rather, after Petitioner shot both his father and Ms. Bateman, he proceeded to walk over to his father and beat him to death with the butt of the shotgun. (Trial Tr. at 151). Dr. Watson himself testified that "indeed, the central evidence to me that [Petitioner] was out of control, he was without capacity to conform, that he was flying blindly, that he was insane, is about what happened with the death of his father," referring to the fact that Petitioner's father had been beaten to death after the shooting. (Id. at 1525, 1525-27). According to Dr. Watson, "[t]he most vivid proof' of Petitioner's "blind drive of his unconscious emotions, his instinctual self; uncontrolled; absolutely uncontrolled" was Petitioner's subsequent act of beating his father to death. (Id. at 1535). Therefore, it is possible that although the jury found that Petitioner was mentally ill at the time of the shootings, the "blind drive of his unconscious emotions," i.e., the irresistible impulse, did not take hold until the moment when he discovered that his father was not dead and proceeded to beat his father to death.
Regardless of the reasoning behind the jury's differing verdicts, this Court is satisfied that any limitations that may have been erroneously placed on Dr. Watson's testimony were not of such an egregious nature that it results in a denial of fundamental fairness that amounts to a denial of due process. Accordingly, this Court finds that the Michigan Supreme Court's decision was not contrary to federal law and therefore, Petitioner is not entitled to habeas relief on this claim.
2. Voluntary Manslaughter Instruction
Based upon the testimony presented during trial, defense counsel requested an instruction on voluntary manslaughter. The trial court denied defense counsel's request. Evaluating the three requirements for voluntary manslaughter enunciated in People v. Pouncey, 437 Mich. 382 (1991), i.e., a killing in the heat of passion, caused by adequate provocation, with no lapse of time during which a reasonable person could control his passions, the trial court found that there had been a sufficient cooling-off period based upon the fact that an hour elapsed between Petitioner's last confrontation with his father and the shootings. (Trial Tr. at 1737). In addition to finding that a sufficient cooling-off period had elapsed, the trial court also remarked that Petitioner's theory of provocation, i.e. "that this was a long built-up thing over the years," was not the type of provocation that voluntary manslaughter was meant to compensate. (Id.).
The court of appeals affirmed. Recognizing that under Michigan law a trial court is required to instruct the jury on manslaughter where there is evidence to support such a theory and a proper request is made, the court of appeals concluded, "as a matter of law that there was insufficient evidence of adequate provocation to warrant an instruction on voluntary manslaughter." People v. Webb, No. 154722 at 3 (Mich.Ct.App. Oct. 3, 1995). According to the court of appeals:
Undisputedly, defendant had a long and tumultuous relationship with his father. However, because defendant was found NGRI for the killing of [his father], our focus is necessarily on the circumstances immediately surrounding the killing of Ms. Bateman. Defendant told Detective Southworth that, just before the victims arrived home, defendant had a feeling that he should leave but chose not to. Defendant felt that he had come that far and was not going to leave. He shot his father immediately as he entered the house, then shot Ms. Bateman in the back. He then struck his father in the head with the butt of the shotgun. He shot each victim a second time to ensure that they were dead. Although at trial the defense asserted that defendant had been contemplating suicide and that he panicked when his father arrived home, we note that, in his interview with Detective Southworth, defendant at first did not indicate that he had been suicidal or that he had panicked. After the killings, defendant disposed of the bodies and cleaned the crime scene.
Evidence of adequate provocation or heat of passion is clearly lacking in this case with respect to Ms. Bateman. There simply was no evidence of any friction between defendant and Ms. Bateman to justify an instruction on manslaughter. Accordingly, because defendant cannot claim prejudice with respect to the jury's verdict of NGRI for the killing of his [father], and there was no evidence to support an instruction on voluntary manslaughter with respect to Ms. Bateman, we conclude that defendant has not established entitlement to appellate relief on this basis.Id.
Petitioner contends that the court of appeals's decision regarding the death of Ms. Bateman "was based on an unreasonable determination of the facts in light of the evidence presented at trial." (Pet. at 30). Petitioner contends that there was sufficient evidence from which a reasonable jury could have found that he was adequately provoked by his relationship with his father and that, because the events regarding his father and Ms. Bateman were inextricably intertwined," such provocation could be transferred to his conduct in relation to Ms. Bateman. (Id. at 33-34). In essence, Petitioner contends that because he would have been entitled to a voluntary manslaughter instruction with respect to his father, he was also entitled to a voluntary manslaughter instruction with respect to Ms. Bateman.
Petitioner also contends that such error was not harmless with respect to Ms. Bateman. In support of his contention, Petitioner cites the fact that "the jury reached anomalous and logically inconsistent verdicts in connection with two deaths arising out of the same transaction." (Pet. at 35). Petitioner also cites the fact that the jury convicted him of the only lesser offense on which it was instructed, i.e., guilty but mentally ill of second degree murder. (Id.). According to Petitioner, "[h]ad the jury been given the option of convicting [him] of manslaughter in connection with Bateman's death, there is a substantial likelihood that it would have convicted of that offense instead of second degree murder." (Id.).
In rejecting Petitioner's claim, Magistrate Judge Pepe first concluded, based upon the Sixth Circuit's decision in Bagby v. Sowders, 894 F.2d 792, 796-97 (6th Cir. 1990), that the failure to instruct the jury in a non-capital case on a lesser included offense does not amount to a violation of due process under the Fourteenth Amendment. Next, Magistrate Judge Pepe concluded that the evidence presented at trial was "not sufficient for this Court to dictate that Michigan Courts must accept a father's return home "adequate provocation' to trigger a voluntary manslaughter instruction." (RR at 35). According to Magistrate Judge Pepe, "because it cannot be said as a matter of federal law that the evidence adduced by the defense constituted sufficient provocation for a voluntary manslaughter instruction . . . it cannot be concluded that the Michigan court's decision was an "arbitrary and unsupportable denial of a lesser included defense instruction in clear defiance of state law."' (Id. at 35) (quoting Bagby, 894 F.2d at 795).
In his objections, Petitioner contends that Magistrate Judge Pepe's reasoning with respect to this claim is "fatally flawed because it was based on a misinterpretation/misunderstanding of the reasoning/holding of the Michigan Court of Appeals." (Pet'r Obj. at 1). According to Petitioner, the court of appeals "made an implicit, if not explicit, finding that adequate provocation had been adduced with respect to the killing of [Petitioner's] father," and then erred by not applying its finding of provocation to Ms. Bateman under the doctrine of transferred intent. (Id. at 2, 2-3). As Petitioner explains, "[h]ad the Michigan Court of Appeals determined that adequate evidence of provocation had not been adduced with respect to the killing of either Bateman or [his] father, it would have simply held that no error occurred when the trial judge denied the defense request for an instruction on voluntary manslaughter because sufficient evidence had not been presented at trial ," in stead of denying his claim with respect to his father on the sole ground that Petitioner could not establish prejudice. (Id.).
Petitioner has failed to convince this Court that the court of appeals' holding necessarily represents an "implicit" finding that Petitioner was entitled to an instruction on voluntary manslaughter with respect to his father's death. In this Court's opinion, the court of appeals could just have easily decided to forgo a determination regarding provocation with respect to Petitioner's father because the lack of prejudice clearly precluded Petitioner's claim for relief.
Next, Petitioner contends that the court of appeals "acted in complete defiance of state law because it was obligated to evaluate the request for a voluntary manslaughter instruction on the basis of evidence which supported [Petitioner's] version of the events." (Pet'r Obj. at 3-4) (citing People v. Heflin, 434 Mich. 482 (1990)). According to Petitioner, the court of appeals relied exclusively upon the prosecution's theory of the case. (Pet'r Obj. at 4). As is evident from the passage quoted above, the court of appeals considered evidence presented by both the prosecution and Petitioner, but ultimately found, as a matter of law, that Petitioner had failed to adduce sufficient evidence regarding provocation.
Furthermore, the Sixth Circuit has held that the failure to instruct on a lesser-included offense, even if supported by the evidence, does not amount to a due process violation in non-capital cases. See Bagby v. Sowders, 894 F.2d 792, 796-97 (6th Cir. 1990). Instead, to establish a due process violation in a non-capital case, the petitioner must show that the state court "manifestly and flagrantly violated their own clearly stated law in refusing [the] requested instruction." Id. at 794. Although the Michigan Supreme Court denied review on this claim, the Michigan Court of Appeals addressed it and determined that the trial court did not err as a matter of state law in denying Petitioner's request for such an instruction. See Webb, No. 154722 at 3. As the Sixth Circuit stated in Bagby, "considerable deference is due state courts in the application of their own law." Bagby, 894 F.2d at 794.
This Court agrees with Magistrate Judge Pepe that it is not for this Court to determine whether Michigan courts must accept a father's return home, or a son's "long built-up" aggression toward his father, as sufficient provocation under state law. Accordingly, Petitioner's objection is rejected.
Conclusion
For the reasons stated above, Petitioner has failed to establish that the state court's adjudication of these claims resulted in a decision that was contrary to, or an unreasonable application of, clearly established federal law. Accordingly, Petitioner's application for a writ of habeas corpus shall be denied.
An Order consistent with this Opinion shall issue forthwith.