Opinion
Civil No. 00-73974-DT
June 26, 2001
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR LEAVE TO FILE INSTANTER AND DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
Mark Earl White, ("petitioner"), presently confined at the Hiawatha Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for a writ of habeas corpus, in which he has seeks to challenge his convictions for one count of unarmed robbery, M.C.L.A. 750.530; M.S.A. 28.798; two counts of uttering and publishing, M.C.L.A. 750.249; M.S.A. 28.446; two counts of resisting and obstructing a police officer, M.C.L.A. 750.479; M.S.A. 28.747; one count of malicious destruction of police property, M.C.L.A. 750.377b; M.S.A. 28.609(2); one count of failure to obey a police officer's signal, M.C.L.A. 750.479a; M.S.A. 28.747(1); and being a fourth felony habitual offender, M.C.L.A. 769.12; M.S.A. 28.1084. For the reasons stated below, the petition for writ of habeas corpus is DENIED. The Court will grant respondent's motion to for leave to file instanter.
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review. United States ex. rel. McDonald v. Page, 108 F. Supp.2d 993, 996 (N.D.Ill. 2000); Briggs v. Makowski, 2000 WL 1279168, *1 (E.D. Mich. August 18, 2000)(Borman, J.):
On Saturday, July 30, 1994, eighty-one year-old Laurna Burns, was parking her car in the parking lot of a shopping center when she noticed an old, light-colored car pull into the parking space next to hers. A man exited the car and approached her as she walked toward the shopping center. The man grabbed her purse, flinging her to the ground. The man then returned to his car and drove off. Among the items in Burns' purse were her identification, credit cards, and a checkbook for her account at TCF bank. At trial, Burn's identified defendant as her assailant, and other witnesses identified defendant's car as being the one used in the robbery.
The following Monday morning, defendant cashed a $100 check drawn on Burns' TCF account and payable to himself. Later that day, Detective Gerald Hopkins, a plainclothes police officer, was at the bank to retrieve the check cashed by defendant when defendant attempted to cash another check. Upon being notified of defendant's presence by a bank teller, Detective Hopkins approached defendant from behind with his gun drawn. Displaying his identification in one hand and holding his gun in the other, Detective Hopkins told defendant that he was under arrest and escorted him from the building. As they neared Hopkins' unmarked patrol car, defendant pushed Hopkins away and ran to his car, which was also parked in the lot. Hopkins struck defendant in the head several times with his gun in an attempt to prevent him from starting the car but was unable to stop him from escaping.
Before pursing defendant, Detective Hopkins radioed to other officers, informing them that defendant had fled. Several marked patrol cars, with sirens activated and lights flashing, soon joined in the pursuit. The ensuing chase through residential neighborhoods and the business district lasted approximately fifteen minutes. After colliding with police cars and causing one officer to drive into a tree, defendant's car collided with a fence and came to a stop in a parking lot. Unable to proceed further, defendant climbed out of the passenger side window and attempted to flee on foot. After struggling with several officers, he was finally taken into custody. During a subsequent search of defendant's car, Detective Hopkins found Burns' identification, credit cards, and personal checks on the floor near the back seat.
People v. White, 185321, *1-2 (Mich.Ct.App. March 28, 1997).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 456 Mich. 930; 573 N.W.2d 625 (1998). Petitioner then filed a post-conviction motion for relief from judgment with the trial court, which was denied. People v. White, 94-134727-FH (Oakland County Circuit Court, October 6, 1998)(Mester, J.). After the trial court denied the motion, the Michigan Court of Appeals denied petitioner leave to appeal. People v. White, 215477 (Mich.Ct.App. August 6, 1999). Petitioner now seeks a writ of habeas corpus on the following grounds:
Petitioner's application for leave to appeal to the Michigan Supreme Court was rejected as being untimely filed.
I. The State has created objective factors external to the timely appeal by right of petitioner's sentence, thereby denying petitioner his U.S. Const. Am. Rights V XIV.
IA. Petitioner's sentence is based on unconstitutional prior convictions and on prejudicial statements in the presentence report which petitioner was given no opportunity to challenge.
IB. Petitioner's sentence has never been upheld as pronounced in his presence, and the trial court refuses to uphold the sentence given in petitioner's presence or resentence.
IC. Petitioner has been severely prejudiced at trial, sentence, and post-conviction review by a state court judge that has improperly applied the law and refused to recuse himself or allow review by a chief judge de novo.
II. Petitioner was denied his U.S. Const. Am. Right VI to present a witness in his defense that would have created serious doubts to the legitimate background of the evidence used to convict for unarmed robbery, the state's sole citation for maintaining this charge.
III. The custody of the evidence was intentionally negligent by the arresting agency and the court excluded this fact by withholding Brady material during trial, denying petitioner his U.S. Const. Am. Rights V and XIV.
IV. Petitioner was denied effective assistance of counsel where his attorney failed to move to suppress identification testimony which was the result of an unduly suggestive pretrial confrontation, and the witness had no independent basis for identifying petitioner.
V. Petitioner was denied due process and a fair trial where the prosecutor infringed on the fact finding province of the jury by instructing that petitioner was lying, shifting [the] burden of proof
VI. Petitioner's conviction for resisting arrest of Detective Hopkins must be reversed where the state failed to prove the charge.
VII. Petitioner's conviction of resisting arrest of Officer Cosby must be reversed because newly discovered evidence after trial corroborates petitioner's testimony that he never resisted.
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, 529 U.S. 362, 412-413 (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 411.
III. DISCUSSION
A. Claims I, IA, IB. and IC. The sentencing claims.
The Court will consolidate petitioner's sentencing claims for purposes of judicial economy.
On April 10, 1995, the trial court sentenced petitioner to terms of four to fourteen years in prison on the uttering and publishing convictions, two and one half to four years on the malicious destruction of police property conviction, one to two years in prison on the resisting and obstructing a police officer convictions, one year in jail on the failure to obey a police officer's signal, and seven to fifteen years in prison on the unarmed robbery conviction. Then pursuant to the Michigan Court Rules, the trial court vacated these sentences and sentenced petitioner to ten (10) to fifteen (15) years in prison on the fourth felony habitual offender conviction. (Sent. Tr., 04/10/95, pp. 22-23). The judgment of sentence, however, listed two separate sentences for the fourth habitual offender charges, one for seven to thirty years and one for seven to fifteen years.
With the exception of the one year county jail sentence on the misdemeanor charge of failure to obey a police officer's signal.
On appeal, petitioner filed a motion for remand to the trial court for clarification of his sentence, which was granted. People v. White, 185321 (Mich.Ct.App. December 20, 1995). On remand, the Oakland County Circuit Court issued an order clarifying the sentence. The trial court indicated that petitioner received a sentence of four to fourteen years in prison on the uttering and publishing convictions, but vacated these sentences and imposed a four to fifteen year sentence on the fourth habitual offender charge for these two offenses. The court again indicated that it imposed sentences of two and one half to four years on the malicious destruction of police property conviction, one to two years in prison on the resisting and obstructing a police officer convictions, and one year in jail on the failure to obey a police officer's signal. The court indicated that there was no enhancement of these offenses. Lastly, the court indicated that it imposed a seven to fifteen year sentence for the unarmed robbery conviction, but was vacating that sentence and imposing a sentence often to fifteen years in prison on the fourth habitual offender conviction for this charge. All of the sentences were to run concurrently. The trial court also indicated in its order that petitioner "shall be entitled to receive any good time or disciplinary credits available to him pursuant to Department of Corrections policy." People v. White, 94-134727-FH (Oakland County Circuit Court, February 7, 1996)(Mester, J.). Petitioner claims, however, that this order was not enforced by the trial court until October 11, 1999, at which time the Michigan Department of Corrections terminated the previous invalid sentence of seven to thirty years on March 9, 2000.
Petitioner first claims that he was never given a copy of his presentence investigation report to review prior to his original sentencing to challenge any inaccuracies in the report. As respondent notes, this claim is refuted by the record. At the beginning of the sentencing hearing, petitioner's defense counsel indicated that he had an opportunity to review the presentence report with petitioner and indicated that there were a few changes that needed to be made to it. (Sent. Tr., 04/10/95, p. 3). Counsel then indicated that he wanted the court to make several changes to the presentence investigation report, including the fact that petitioner was employed at the time of the crime. Counsel also made a challenge to two misdemeanor convictions listed in the presentence report. After extensive arguments by counsel, the trial court asked petitioner if he had anything to say. Petitioner told the court that he was sorry and further acknowledged that "I know I put myself into this mess." ( Id. at p. 21). Petitioner did not indicate to the court that he did not have an opportunity to review the presentence investigation report prior to sentencing.
It is unclear precisely the type of claim that petitioner is bringing. To the extent that petitioner is contending that the failure to review his presentence report denied him a meaningful opportunity to allocute at sentence, the Court notes that there is no constitutional right to allocution under the United States Constitution. Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997) (citing to Hill v. United States, 368 U.S. 424, 428 (1962)). A trial court's failure to afford a defendant the right to allocution raises neither a jurisdictional or constitutional error cognizable on habeas review. Scrivner v. Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995); Harrelson v. Trippett, 67 F.3d 299, 1995 WL 579571, *9, fn. 5 (6th Cir. October 2, 1995). To the extent that petitioner contends that he was denied the opportunity to make corrections to the presentence report, this too fails to state a claim upon which habeas relief can be granted. There is no federal constitutional right to a presentence investigation and report. Elswick v. Holland, 623 F. Supp. 498, 502 (S.D.W. Va. 1985); Lawson v. Riddle, 401 F. Supp. 410, 412 (W.D. Va. 1975); See also Federico v. Yukins, 39 F.3d 1181, 1994 WL 601408, *6 (6th Cir. November 2, 1994 (failure by a trial court to use a presentence report is not of constitutional dimensions). Therefore, the fact that petitioner was denied an opportunity to review his pre-sentence report would not raise a claim cognizable in federal habeas relief.
Petitioner also claims that the trial court failed to order an updated presentence report prior to re-sentencing petitioner on February 7, 1996. The failure to await an updated presentence report is also a matter of state law that does not involve federal constitutional rights. Roberts v. Superintendent, Groveland Correctional Facility, 26 F. Supp.2d 684, 686 (S.D.N Y 1998). Thus, petitioner is not entitled to habeas relief on this claim.
Petitioner also claims that although the trial court accepted changes to the presentence investigation report by counsel, the corrections were never made. He further contends that the trial court relied on information contained within the presentence report, in which Detective Hopkins indicated that petitioner was a suspect in a similar offense that occurred in Waterford Township, Michigan on July 31, 1994. The presentence report indicated that the woman had been unable to make a positive identification in that case. The mere presence of hearsay or inaccurate information in a presentence report does not constitute a denial of due process. Hili v. Sciarrota, 140 F.3d 210, 216 (2nd Cir. 1998). Thus, the fact that inaccurate information was contained within petitioner's presentence investigation report would not entitle him to federal habeas relief.
More importantly, petitioner has failed to demonstrate that the trial court relied on this information in imposing sentence. In order to prevail on a claim that a trial court relied on inaccurate information at sentencing, a habeas petitioner must demonstrate that the sentencing court relied upon this information and that it was materially false. Collins v. Buchkoe, 493 F.2d 343, 345-346 (6th Cir. 1974); Welch v. Burke, 49 F. Supp.2d 992, 1007 (E.D. Mich. 1999)(Cleland, J.). A review of the trial court's remarks at sentencing demonstrate that the trial court did not consider this uncharged crime in fashioning the sentence imposed in this case. (Sent. Tr., 04/10/95, pp. 21-24). Because petitioner has failed to demonstrate in his petition that the sentencing court relied upon materially false information in imposing sentence, this claim is without merit. Thomas v. Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987)(Cohn, J.).
Petitioner next claims that the trial court relied on four uncounseled misdemeanor convictions in imposing sentence. Petitioner's claim fails because there is no indication that the trial court considered petitioner's prior misdemeanor convictions when it imposed sentence. A review of the sentencing transcript shows that the sentence was based on the fact that the victim was an eighty year old woman, petitioner's attempts to elude the police, and the fact that petitioner had been given opportunities in the past to take charge of his life but had failed to do so. Petitioner was also a fourth felony habitual offender who actually had nine prior felony convictions and eleven prior misdemeanor convictions. Because these four uncounseled misdemeanor convictions were neither used to support a finding of guilt or to enhance petitioner's punishment, he is not entitled to habeas relief on this claim. See Schuttel v. Clerk of Court, 575 F. Supp. 1199, 1200 (E.D. Wis. 1983). Moreover, in light of petitioner's extensive prior criminal record, as well as the seriousness of this case, petitioner has not shown a reasonable probability that he would have received a sentence of less than ten to fifteen years in prison had the trial court not considered his four prior uncounseled misdemeanor convictions. See Erdman v. Tessmer, 69 F. Supp.2d 955, 963 (E.D. Mich. 1999)(Gadola, J.).
See Presentence Investigation Report, attached as Petitioner's Exhibit 5.
Petitioner also claims that the trial court refused to enforce its order from February 7, 1996, in which he claims that the trial court granted petitioner good time credit on his habitual offender conviction. Petitioner claims that the Michigan Department of Corrections then refused to credit his sentence for the good time credits. Petitioner subsequently requested relief from the trial court. In a letter dated January 29, 1998, the trial court informed petitioner that the court did not have jurisdiction to grant prisoners either good time or disciplinary credits. On September 22, 1998, the trial court issued an order denying petitioner's request for disciplinary or good time credits.
Petitioner's Appendix I.
Petitioner's Appendix J.
Defendants sentenced as habitual offenders are not eligible for parole in Michigan before the expiration of the minimum sentence except by written permission of the sentencing judge or the judge's successor. People v. Martinez, 210 Mich. App. 199, 203; 532 N.W.2d 863 (1995) (citing to M.C.L.A. 769.12(3); M.S.A. 28.1084(3)). Therefore, they may not earn disciplinary credits. Id., See also People v. Lincoln, 167 Mich. App. 429, 431; 423 N.W.2d 216 (1987). To the extent that petitioner's claim challenges the state trial court's interpretation and application of state crediting statutes, the claim is noncognizable on federal habeas review. See Hoover v. Snyder, 904 F. Supp. 232, 234 (D. Del. 1995); See also Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991).
The Court also rejects petitioner's related claim that the trial court's denial of good time credits to petitioner constituted a modification of petitioner's original sentence for which petitioner was entitled to be present. First, although petitioner claims that the trial court indicated both on the record and in the commitment papers that petitioner was entitled to good time credits, the trial court's order of February 7, 1996 indicated that petitioner would be entitled to any good time or disciplinary credits available to him pursuant to Department of Corrections policy. In Michigan, courts speak through their judgments and orders in criminal matters, not their oral statements or written opinions. People v. Stackpoole, 144 Mich. App. 291, 298; 375 N.W.2d 419 (1985). The trial court's decision to deny petitioner good time credits after the Department of Corrections declined to do so was not a modification of petitioner's sentence, but was consistent with the trial court's original order. Moreover, even if the trial court's subsequent order of September 22, 1998 was to be construed as a re-sentencing, petitioner would have no right to be present at a resentencing hearing that merely involves for a nondiscretionary correction of the original sentence. See e.g. United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). Because Michigan law does not permit habitual offenders to receive good time or disciplinary credits on their sentences, the trial court's subsequent denial of petitioner's requests to be awarded good time credits was at best a nondiscretionary correction based on Michigan law for which petitioner's presence would not be required. The correction of an erroneous sentence imposed on a state prisoner does not violate any of his constitutional rights. Stiltner v. Rhay, 258 F. Supp. 487, 491 (E.D. Wash. 1965). Petitioner's claim that the trial court denied him good time credits in his absence does not therefore rise to the level of a fundamental miscarriage of justice or a violation of procedural due process so as to entitle him to federal habeas relief. See Floyd v. Alexander, 148 F.3d 615, 618-619 (6th Cir. 1998) (state trial court's entry of an order changing a petitioner's sentence from concurrent sentences to consecutive sentences, in his absence, while a violation of Ohio law, did not rise to the level of a fundamental miscarriage of justice or a violation of procedural due process of law).
In a related claim, petitioner alleges that the Department of Corrections did not change his prison records to reflect that his prison sentence was ten to fifteen years until March 9, 2000. As respondent notes, petitioner is unable to show that he suffered any prejudice by this belated correction. The government is not permitted to delay the expiration of a prisoner's sentence by either postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him or her. Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994). There is no indication in this case that the State of Michigan either postponed the commencement of petitioner's sentence or erroneously released him based on the prior incorrect sentence of seven to thirty years. Therefore, petitioner is unable to show that the expiration of his sentence has been somehow delayed by the Department of Corrections' failure to correct his sentence in their records until March 9, 2000.
Petitioner lastly claims that Judge Mester should have recused himself from hearing petitioner's challenge to the Department of Corrections' denial of his good time credits. To state a claim that a judge is biased, a defendant must show either actual bias or the appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997). Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999)(Gadola, J.). The main reason given by petitioner for Judge Mester to disqualify himself from petitioner's case was his refusal to grant petitioner good time credits. Because adverse rulings are insufficient to establish judicial bias, petitioner's final sentencing claim is without merit. Petitioner also appears to argue that Judge Mester was biased against him because the victim's son in this case was a retired Pontiac police officer. Petitioner, however, offers no evidence that Judge Mester knew the victim or her son. Where a case involves a remote, contingent, indirect, or speculative interest, the disqualification of a judge is not required. See e.g. In Re Aguinda, 241 F.3d 194, 201 (2nd Cir. 2001) (internal citations omitted). Because the record provides no basis for the trial judge to have disqualified himself and petitioner has failed to submit facts demonstrating that he was treated unfairly by the trial judge, his judicial bias issue lacks merit for habeas corpus relief. Toliver v. McCaughtry, 910 F. Supp. 1366, 1373 (E.D. Wis. 1995).
Petitioner is not entitled to habeas relief on his sentencing claims.
B. Claims # 2 and # 4. The ineffective assistance of counsel claims.
Petitioner's second and fourth claims have been consolidated since they both allege ineffective assistance of counsel.
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.; 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 call Lisa Kellum as an alibi witness or to challenge the chain of custody.
Petitioner first alleges that his trial counsel was ineffective for failing to call his ex-wife Lisa Kellum to establish an alibi defense at the time of the alleged robbery. Petitioner also claims that Kellum should have been called to challenge the chain of custody concerning the evidence that was removed from his car by the police.
In order to show that he was prejudiced by trial counsel's failure to investigate or present alibi witnesses, a habeas petitioner would have to show that but for counsel's failure to adequately investigate, prepare, and present these alibi witnesses, there was a reasonable probability that the outcome of petitioner's trial would have been different. Fargo v. Phillips, 129 F. Supp.2d 1075, 1093 (E.D. Mich. 200 1)(Tarnow, J.). If a known alibi witness is available to testify that a criminal defendant was with them "at about the time" of the crime's commission, this would be sufficient to require counsel to fully investigate this witness. Id. at 1095 (citing to Washington v. Smith, 219 F.3d 620, 633 (7th Cir. 2000)).
Petitioner's claim that trial counsel was ineffective for failing to call Kellum as an alibi witness fails for several reasons. In her affidavit, Kellum claims that on the day of the robbery, she brought their children over to petitioner's house at 6:00 p.m. to leave the children with petitioner. She knocked on the door but received no answer. Ms. Kellum was upset at petitioner because she had depended on him to look after the children. Later that night, Kellum received a phone call from petitioner, who informed her that he had heard her knocking on the door but pretended not to hear because he had been drinking and did not want their children to see them in that condition.
Petitioner's Exhibit 10.
The alibi evidence relied upon by petitioner fails to prove his innocence, because Kellum did not actually see petitioner at his home at the time of the crime, but was merely told by him several hours later that he had been at home when she knocked on the door. In view of the gaps in the alleged alibi witness' affidavit, this Court does not consider it strong evidence of petitioner's innocence. See Carlson v. Bartlett, 815 F. Supp. 122, 123-124 (S.D.N.Y. 1993) (affidavit of alleged alibi witness did not warrant reconsideration of habeas petitioner's ineffective assistance of counsel claim based upon counsel's failure to call her, in view of the gaps in the affidavit). The alibi testimony that petitioner claims he could procure therefore lacks sufficient weight to prove his actual innocence. Romero v. Senkowski, 950 F. Supp. 573, 578 (S.D.N.Y. 1996). Since Kellum, as petitioner's ex-wife, was not a disinterested witness, and could not specifically account for petitioner's whereabouts at the time of the robbery, counsel was not ineffective for failing to call her as a witness. See United States . rel. Emerson v. Gramley, 902 F. Supp. 143, 147-148 (N.D. Ill. 1995).
Petitioner also claims that counsel should have called Kellum to testify that she went to retrieve items from petitioner's car on August 2nd or 3rd, 1994, prior to the police search of the vehicle, and did not observe the victim's items inside. Petitioner is unable to show that he was prejudiced by counsel's failure to present this testimony. Even absent the property found inside of petitioner's car, there was ample evidence linking petitioner to this crime. The victim identified petitioner as her assailant. Two other witnesses to the robbery identified petitioner's car as being the one used during the robbery. (Trial Tr., Vol. I, pp. 170-171; 191-192). Two days after the robbery, petitioner cashed one check in the victim's account made out to him and attempted to cash another check made out to him also in the victim's account. Therefore, even in the absence of the victim's property which had been confiscated from petitioner's car, there was ample evidence linking petitioner to the robbery.
2. Failure to file a pretrial motion to suppress the victim's identification testimony.
Petitioner next claims that trial counsel was ineffective for failing to move to suppress the victim's in-court identification of him as the man who robbed her, because she failed to identify petitioner in a pre-trial lineup.
As an initial matter, the Court notes that petitioner's claim that the victim failed to identify him as her assailant in a pretrial lineup is not entirely accurate. The victim attended two different lineups, of which petitioner was a participant in the second one. On direct examination, the victim indicated that she picked out petitioner at the second lineup. ( Id. at pp. 142-144). On cross-examination, however, she acknowledged that at the first lineup (in which petitioner was not a participant), she identified a person who could have possibly been the perpetrator. ( Id. at pp. 158-159). She further admitted that at both lineups, she thought that the perpetrator was the second person in the lineup, but acknowledged that she couldn't be sure. ( Id. at p. 161).
A defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. It is only after a defendant meets this burden that the burden then shifts to the prosecutor to prove that the identification was reliable independent of the suggestive procedure. English v. Cody, 241 F.3d 1279, 1282-1283 (10th Cir. 2001) (citing to United States v. Wade, 388 U.S. 218, 240, n. 31 (1967)). If a defendant fails to show that the identification procedures are impermissibly suggestive, or if the totality of the circumstances indicate that the identification is otherwise reliable, no due process violation has occurred; so long as there is not a substantial misidentification, it is for the jury or factfinder to determine the ultimate weight to be given to the identification. United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).
Petitioner contends that the in-court identification of him by Burns was tainted because she was unable to identify him at a pre-trial line-up. The fact that a witness cannot identify an accused at a pre-trial lineup procedure is not a reason to exclude his or her testimony identifying the accused in court; the failure to identify an accused during a pre-trial lineup goes only to the weight of the witness's identification testimony and not to its admissibility. United States v. Causey, 834 F.2d 1277, 1286 (6th Cir. 1987); United States v. Hamilton, 684 F.2d 380, 383 (6th Cir. 1982). Michigan law is in accord on this point. See People v. Barclay, 208 Mich. App. 670, 676; 528 N.W.2d 842 (1995). Trial counsel's failure to move to suppress this allegedly unreliable in-court identification would not be ineffective assistance, absent a reasonable probability that this motion would have resulted in a decision to exclude the testimony. See White v. Helling, 194 F.3d 937, 941-942 (8th Cir. 1999). In light of the fact that the victim's equivocal pre-trial identification of petitioner would not have excluded her in-court identification of him, counsel was not ineffective for failing to move for its suppression.
Moreover, defense counsel cross-examined Ms. Burns extensively about the fact that she had picked out a possible suspect at the first lineup that petitioner did not participate in and elicited an admission from her that she wasn't certain that the person she picked out in either lineup was the perpetrator. The victim admitted being confused during the lineups and admitted that she could not give a description of the assailant's height and weight. ( Id. at pp. 157-161). The decision to attack the credibility of Ms. Burns' identification of petitioner through extensive cross-examination, rather than to object to the in- court identification, was a reasonable trial strategy that defeats petitioner's ineffective assistance of counsel claim. See Killebrew v. Endicott, 992 F.2d 660, 665 (7th Cir. 1993).
Conclusion
Petitioner was not deprived of the effective assistance of counsel.
C. Claim # 3. The exculpatory evidence claim.
Petitioner next claims that the either the prosecutor or the trial court suppressed the search warrant that was used to search petitioner's car. The search warrant was signed on August 22, 1994 and was executed either that day or the following day. The return on the search warrant was signed August 23, 1994. Petitioner claims that this evidence would have exculpated him of the crime, because the three week time lag between the time that his car was impounded on August 1, 1994 and the time that the police searched his car broke the chain of custody and could have given ample time for anyone to place the victim's property in his car.
Petitioner's Exhibit 12.
Suppression by the prosecution of evidence favorable to the defendant upon request violates due process, where the evidence is material to either guilt or punishment of the defendant, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). To establish a Brady violation, a defendant has the burden of establishing that the prosecution suppressed evidence, that such evidence was favorable to the defendant, and that the evidence was material. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). There never is a real "Brady" violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Coleman v. Mitchell, 244 F.3d 533, 541 (6th Cir. 2001).
Petitioner's due process claim fails for several reasons. First, there is no evidence that the prosecution suppressed this evidence. In rejecting petitioner's claim, which was raised in his post conviction motion, the trial court noted that either petitioner or his counsel could have reviewed the district court file which contained the search warrant and that the failure to do so did not constitute prosecutorial error. People v. White, 94-134727-FH, Slip. Op. at *4. Where a habeas petitioner's factual assertions that exculpatory evidence were suppressed are rejected by the state court, a federal habeas court is bound by that finding in the absence of evidence to the contrary. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998). Petitioner has offered no evidence that this search warrant was not available in the district court file for him or his attorney to inspect. There is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Because petitioner could have obtained this search warrant from the district court file, petitioner is unable to establish that his due process rights were violated.
In addition, this Court rejects petitioner's claim for the same reason that it rejected petitioner's claim that counsel was ineffective for failing to call Lisa Kellum to testify that she did not observe the victim's items inside of petitioner's car on August 2nd, or 3rd, 1994. The materiality standard that petitioner is required to meet to prove a Brady violation is identical to the prejudice standard required to prevail on an ineffective assistance of counsel claim. Martin v. Cain, 246 F.3d 471, 477 (5th Cir. 2001). Petitioner cannot show that the suppression of any evidence that would call into question the validity of the police search of his vehicle was material to this case, because even absent the evidence discovered in petitioner's car, there was ample evidence to convict him of these crimes. Petitioner's third claim does not entitle him to habeas relief.
D. Claim # 5. The prosecutorial misconduct claim.
Petitioner next claims that he was deprived of a fair trial when the prosecutor argued to the jury in his closing argument that petitioner had lied when he testified. Petitioner contends that this infringed on the fact finding province of the jury and shifted the burden of proof.
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.
A state prosecutor's references to a defendant as a liar and to the defendant's testimony as lies does not violate a habeas petitioner's right to a fair trial where the evidence of guilt is overwhelming, the remarks are isolated, and the remarks do not mislead the jury. See Gilliam v. Kirby, 958 F. Supp. 255, 260 (N.D.W. Va. 1997). A prosecutions' assertion during closing arguments that the defendant lied does not deprive a petitioner of due process where the prosecutor's statements were reasonable inferences drawn from the physical evidence and witness testimony. United States ex. rel. Williams v. Washington, 913 F. Supp. 1156, 1163-1164 (N.D. Ill. 1995). A review of the prosecutor's closing argument show that the prosecutor's references to petitioner as lying or being a liar were fairly isolated. (Trial Tr., Vol. III, pp. 99-109; 118-121). Moreover, the prosecutor's statements were reasonable inferences drawn from the physical evidence and witness testimony. The prosecutor's 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 (E.D. Mich. June 8, 2000)(Cohn, J.). Petitioner is therefore not entitled to habeas relief on this claim.
See Trial Tr., Vol. III, pp. 123-124.
E. Claim # 6. The sufficiency of evidence claim.
Petitioner next claims that there was insufficient evidence to convict him of resisting and obstructing Officer Dale Hopkins.
Standard of Review
A habeas court reviews claims that the evidence at trial was insufficient for a conviction by asking whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000); cert. den. 121 S.Ct. 588 (2000) (citing to Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court's application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F. Supp.2d 615, 632 (E.D. Mich. 2000)(Tarnow, J.). A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). An assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Id.
The elements of the crime of resisting arrest are:
(1) the defendant must have resisted arrest;
(2) the arrest must be lawful;
(3) the person making the arrest must have been at the time an officer of the law;
(4) at the time of the arrest, the defendant must have intended to have resisted such officer;
(5) at the time of the arrest, the defendant must have known that the person he was resisting was an officer; and
(6) at the time of the arrest, the defendant must have known that the officer was making an arrest.
People v. Julkowski, 124 Mich. App. 379, 383; 335 N.W.2d 47 (1983).
In the present case, there was sufficient evidence for a reasonable factfinder to have found petitioner guilty of resisting and obstructing Officer Hopkins. Officer Hopkins was at the TCF bank to retrieve a check that petitioner had written to himself on a checking account taken during the unarmed robbery. While Hopkins was at the store, petitioner came in and attempted to cash a second check under the victim's account made out to him. Detective Hopkins approached petitioner with his gun drawn. While displaying his badge and identification in one hand and his gun in the other, Hopkins informed petitioner that he was under arrest. As they exited the bank and approached Hopkins' patrol car, petitioner pushed away from Hopkins, ran to his car, and escaped. Based upon these facts, a rational trier of fact could have concluded that the elements of the crime of resisting and obsstructing a police officer had been met. Petitioner is not entitled to habeas relief on this claim.
F. Claim # 7. The newly discovered evidence claim.
Petitioner lastly contends that he is entitled to a new trial based on the newly discovered evidence in the form of proposed testimony of Elizondo P. Gonzales, who witnessed petitioner's arrest. In his affidavit, Mr. Gonzales claims that he witnessed petitioner's arrest following the high speed chase, but did not see petitioner offer any resistance to the arrest. Petitioner claims that his conviction for resisting and obstructing Officer Cosby must be reversed because Gonzales' proposed testimony would corroborate his claim that he did not resist arrest.
See Affidavit, attached as Petitioner's Exhibit 16.
"A claim of actual innocence based upon newly discovered evidence is not grounds for federal habeas relief." Hence v. Smith, 37 F. Supp.2d 970, 980 (E.D. Mich. 1999)(Gadola, J.). "[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact." Herrera v. Collins, 506 U.S. 390, 400 (1993). Thus, petitioner's claim does not state a claim upon which habeas relief can be granted.
Additionally, even those federal courts that have suggested that habeas relief could be granted upon newly discovered evidence have set an extraordinary showing of petitioner's innocence before habeas relief could be granted. In White v. Keane, 51 F. Supp.2d 495, 502-503 (S.D.N.Y. 1999), the federal court indicated that in order for newly discovered evidence to warrant habeas relief, the evidence must be "so compelling" that it would violate the fundamental fairness embodied in the Due Process clause not to afford the petitioner a new trial where the new evidence could be considered. See also Alleyn v. Warden, 878 F. Supp. 30, 31 (M.D. Pa. 1995) (in order to be granted habeas relief on an allegation of newly discovered evidence, the petitioner must make at least a "truly persuasive demonstration of innocence").
In the present case, Mr. Gonzales' proposed testimony is not so compelling that it would violate due process not to grant petitioner a new trial. Even on direct appeal, motions for a new trial based upon newly discovered evidence are ""are disfavored and should be granted with caution." United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000). When a defendant makes a motion for a new trial based upon newly discovered evidence, a defendant must show:
1. the evidence was discovered after trial;
2. the evidence could not have been discovered earlier with due diligence;
3. the evidence is material and not merely cumulative or impeaching; and
4. the evidence would likely produce an acquittal if the case were retried.United States v. Turns, 198 F.3d at 586-587.
In the present case, Mr. Gonzales' testimony would merely have been offered to impeach Officer Cosby's testimony that petitioner resisted arrest and would also be cumulative of petitioner's testimony that he did not resist arrest. New evidence which is merely cumulative or impeaching is not an adequate basis for a new trial. Mesarosh v. United States, 352 U.S. 1, 9 (1956); United States v. Davis, 15 F.3d 526, 532 (6th Cir. 1994). Moreover, a new trial is not merited where new impeachment evidence is cumulative of evidence already introduced. Orena v. United States, 956 F. Supp. 1071, 1111 (E.D.N.Y. 1997). Petitioner is therefore not entitled to habeas relief on this claim.
IV. CONCLUSION
The Court will deny the petition for writ of habeas corpus. The Court will also deny a certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 S.Ct. 473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. A district court has the power to deny a certificate of appealability sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. The Court will also deny petitioner leave to appeal in forma pauperis. A habeas petitioner seeking to appeal the denial of a habeas petition will not be permitted to proceed in forma pauperis, where the appeal would be frivolous. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999)(Gadola, J.).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in forma pauperis.
IT IS FURTHER ORDERED that respondent's motion for leave to file instanter is GRANTED.