Opinion
CASE NO. 02-CV-71223-DT
February 18, 2003
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
I. Introduction
This is a habeas corpus action under 28 U.S.C. § 2241 and 2254. Daryl James Whittie (Petitioner) is a state inmate at Huron Valley Correctional Facility in Ypsilanti, Michigan. He is incarcerated pursuant to four state court convictions. Currently pending before the Court is Petitioner's pro se application for the writ of habeas corpus, which alleges that Petitioner's conviction and sentence are illegal and void. Respondent, who has filed a response through the Michigan Attorney General, argues that Petitioner's claims are procedurally defaulted or without merit. For the reasons that follow, the petition will be denied.
II. Procedural History
On January 28, 1997, a circuit court jury in Macomb County, Michigan found Petitioner guilty of: (1) receiving and stealing stolen property worth more than $100, Mich. Comp. Laws § 750.535; (2) conspiracy to possess stolen property worth more than $100, MICH. COMP. LAWS § 750.157a; (3) felonious assault, MICH. COMP. LAWS § 750.82; and (4) fleeing from a police officer, MICH. COMP. LAWS § 257.602a. These convictions arose from a high-speed chase of Petitioner, who was driving a stolen vehicle. Petitioner crashed the vehicle into the driver's side of an occupied police car and drove off again. He and his male companion fled on foot at the conclusion of the vehicular chase. Both men were captured by the police shortly afterward.
The trial court sentenced Petitioner as a fourth habitual offender to concurrent terms of: ten to twenty years in prison for possession of stolen property and conspiracy to possess the property; five years, four months to eight years for the assault; and one year in jail for fleeing from a police officer. Petitioner filed a motion for new trial in which he alleged, among other things, that his trial attorney had been ineffective. The trial court held an evidentiary hearing on Petitioner's claim of ineffective assistance and then denied Petitioner's motion for new trial.
Petitioner raised his first three habeas claims and most of his fourth claim on appeal from his convictions. The Michigan Court of Appeals affirmed Petitioner's convictions and sentence, but remanded the case to correct an error in a citation contained within the judgment of sentence. See People v. Whittie, No. 201508 (Mich.Ct.App. Feb. 26, 1999).
Petitioner raised several additional claims, including ineffective assistance of appellate counsel, in an application for leave to appeal in the Michigan Supreme Court. On October 26, 1999, the supreme court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Whittie, 603 N.W.2d 644 (1999).
Petitioner then filed a motion for relief from judgment in which he raised his final two habeas claims. While the motion was pending in the trial court, Petitioner filed a federal habeas corpus petition. This Court dismissed the habeas petition without prejudice to enable Petitioner to finish exhausting state remedies for his claims. See Whittie v. Jackson, No. 00-CV-74215-DT (E.D. Mich. Oct. 30, 2000).
The trial court meanwhile denied Petitioner's motion for relief from judgment. The Michigan Court of Appeals denied leave to appeal the trial court's decision on the ground that Petitioner "ha[d] failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Whittie, No. 231327 (Mich.Ct.App. June 1, 2001). On November 30, 2001, the Michigan Supreme Court likewise denied leave to appeal for "fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Whittie, 636 N.W.2d 529 (2001).
Petitioner timely filed the pending habeas corpus petition on April 10, 2002. His grounds for relief read as follows:
I. Petitioner Whittie was deprived of his Sixth and Fourteenth Amendment rights under the State and Federal Constitutions to have the effective assistance of counsel for his defense.
II. The evidence was insufficient, as a matter of law, to sustain Petitioner Whittie's criminal conspiracy conviction.
III. The trial court's refusal to give requested jury instructions supported by the evidence deprived Petitioner Whittie of his state and federal constitutional right to a fair trial.
IV. The prosecutor's persuasive and repeated misconduct deprived Petitioner Whittie his federal constitutional right to a fair trial and due process of law.
V. Cumulative errors are so extensive and persuasive that petitioner Whittie was denied a fair trial, fair appeal and due process of law.
VI. Petitioner Whittie's dual convictions for both the substantive offense and conspiracy to commit that offense violated the Double Jeopardy Clause of the state and United States Constitutions.
VII. Petitioner Whittie was deprived of his Sixth and Fourteenth Amendment rights under the federal Constitution to have the effective assistance of appellate counsel on his one and only appeal as of right.
III. Analysis A. Standard of Review
Petitioner is not entitled to the writ of habeas corpus unless he can show that the state court's adjudication of his claims on the merits —
(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).
A state court's decision 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." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
"[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
B. Assistance of Trial Counsel
The first ground for relief alleges that Petitioner was deprived of his constitutional right to effective assistance of trial counsel. The Michigan Court of Appeals concluded on review of this claim that Petitioner was not deprived of effective representation. The question here is whether the state appellate court's adjudication of Petitioner's claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). 28 U.S.C. § 2254(d)(1). The Supreme Court ruled in Strickland that, to prevail on a claim of ineffective assistance of counsel, a party must show that defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. at 687. The first prong of this test requires showing that defense "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The second prong requires showing "a reasonable probability that, but for [trial] counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
"Judicial scrutiny of counsel's performance must be highly deferential. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
1. Presenting a Defense
Petitioner's primary complaint is that his attorney did not present a viable defense, such as intoxication. Defense counsel testified at the post-trial evidentiary hearing that he considered, but rejected, an intoxication defense because Petitioner's detailed memory of the incident, hand-drawn map, and explanation of what had occurred belied the defense. (Tr. July 8, 1997, at 31, 39, 45, 60). In addition, a pretrial psychiatric evaluation of Petitioner indicated that Petitioner knew the consequences of his conduct. Id. at 60-61. Defense counsel did ask the trial court to instruct the jury on the defense of intoxication, but he did so because of Petitioner's demands and an altercation with Petitioner. Id. at 44-46.
Defense counsel also rejected a defense of coercion. Petitioner apparently had tried to excuse his conduct by claiming that he was compelled to assist certain drug dealers by driving them around in a rented car. Defense counsel, however, did not believe this theory. He did not present the theory to the jury because he did not want to antagonize the jury with what he thought was a ridiculous defense theory. Additionally, Petitioner's theory would have required him to testify, and Petitioner had elected not to testify. Id. at 20-21, 39, 63-64.
2. Failure to Prepare, Investigate, and Defend
Petitioner also claims that his attorney failed or refused to (1) meaningfully confer with him before trial, (2) adequately prepare and investigate the case, (3) interview prosecution witnesses, (4) effectively cross-examine, interview, and subpoena defense witnesses, (5) introduce evidence on his behalf, (6) properly advise him about his right to testify, and (7) challenge his prior convictions. Petitioner contends that his attorney also wrongfully accused Petitioner of assaulting him.
Defense counsel testified at the evidentiary hearing that he visited Petitioner for a total of at least five or six hours before trial. He also accepted a collect call from Petitioner and consulted with Petitioner in court. Id. at 11.
Defense counsel did not interview all the police officers involved in the high-speed chase because he feared that they would simply indicate that Petitioner committed the charged crimes. Id. at 28-29. Defense counsel had wanted to interview Petitioner's co-defendant, but the co-defendant's attorney never returned his telephone calls. He declined to call the co-defendant as a witness without first interviewing him because the co-defendant had pleaded guilty to receiving and concealing stolen property and the other charges against him were dismissed. Id. at 42.
Defense counsel strongly denied Petitioner's allegation that he had wanted to testify. He said that Petitioner made the decision not to testify after the trial court refused to suppress Petitioner's prior convictions for armed robbery and retail fraud. Id. at 36-37, 62-65.
Defense counsel did not attempt to quash the habitual offender charge because it was accurate except for one crime, which had no impact on the sentence. Defense counsel maintained at the hearing, as he had done at trial, that Petitioner slapped him with inappropriate force when they disagreed over trial strategy. Id. at 46-51.
3. The State Court Decision
The Michigan Court of Appeals devoted two pages of its opinion to Petitioner's claim of ineffective assistance of counsel. The court of appeals concluded that Petitioner had failed to establish ineffective assistance. Although the court did not cite Strickland, it used the same standard. The court's thorough opinion on the subjection is supported by the record as discussed above. Accordingly, the state court's conclusion did not result in a decision that was an unreasonable application of Strickland, and Petitioner has no right to habeas relief on the basis of his first claim. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 413.
C. Sufficiency of the Evidence
The second ground for relief alleges that the evidence produced at trial was insufficient to sustain Petitioner's conspiracy conviction. According to Petitioner, the evidence adduced at trial shows nothing more than possession of a stolen automobile and delivery of drugs. He claims that there was no evidence that he or his co-defendant knew the vehicle was stolen, that the two of them agreed to steal or possess the vehicle, or that he associated with the venture, participated in it, and sought to make it succeed.
Petitioner's sufficiency-of-the-evidence claim requires the Court to ask
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is 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.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original). The Court must view this standard through the framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 515 (2002) (No. 02-5185).
"A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys, ___ F.3d ___, ___, No. 00-1447, 2003 WL 261192, at *7 (6th Cir. Feb. 10, 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). "The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim." Id.
The Jackson standard must be applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16. In Michigan,
[e]stablishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective. People v. Blume, 443 Mich. 476, 481; 505 N.W.2d 843 (1993). However, because intent may be inferred from evidence of the circumstances, acts, and conduct of the parties, direct proof of an agreement is not required, nor is it necessary that a formal agreement be proven. People v. Carter, 415 Mich. 558, 568; 330 N.W.2d 314 (1982).Whittie, Mich. Ct. App. No. 201508, at 4.
The evidence against Petitioner has been summarized by the Michigan Court of Appeals as follows:
[T]he car [in question] was stolen between 6:00 and 8:30 p.m. on November 29, 1995. Defendant was driving the car at 11:25 a.m. the next day. When a police officer waved the car over, defendant drove off at high speed through residential streets, disregarded stop signs, and drove the wrong way on two main thoroughfares in an attempt to evade the police. A screwdriver or other long, narrow tool had been used to disable both the Camaro's passenger door lock and its ignition system. The police found a screwdriver in defendant's pocket. A police officer testified that the Camaro could no longer be started by using its key.
. . . .
[D]efendant was driving the Camaro with [co-defendant Billy] Powell in the passenger seat. In addition to the obvious damage to the Camaro's door lock and the ignition system, the evidence presented at trial established that both defendant and Powell attempted to flee on foot after the Camaro crashed. Evidence of flight may be used to indicate consciousness of guilt. People v. Coleman, 210 Mich. App. 1, 4; 532 N.W.2d 885 (1995). Moreover, a police officer testified that after defendant was apprehended, defendant told him that he had been delivering drugs with his companion.Id. at 4-5.
The court of appeals opined that the evidence was sufficient for a rational factfinder to conclude that defendant and Powell had entered into a conspiracy to use the stolen vehicle for the purpose of delivering drugs. Although the state appellate court did not cite Jackson in its opinion, it used the same standard.
This Court agrees that a rational trier of fact could have concluded from the testimony that Petitioner and his companion agreed to possess the stolen vehicle for drug transactions. Therefore, the state court's conclusion that the evidence was sufficient to sustain Petitioner's conspiracy conviction was a reasonable application of the Jackson standard. Petitioner is not entitled to the writ of habeas corpus on the basis of his second claim. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 413.
D. The Jury Instructions
The third ground for relief alleges that the trial court's refusal to give certain jury instructions deprived Petitioner of his constitutional right to a fair trial.
1. Lesser-Included Offenses
Petitioner was charged with assault with intent to commit great bodily harm less than murder, but he was convicted of the lesser-included offense of felonious assault. The trial court declined to instruct the jury on assault and battery, but it did instruct the jury on felonious assault as a lesser-included offense of assault with intent to commit great bodily harm. Petitioner claims that the trial court should have granted his request to instruct the jury on the misdemeanor offense of assault and battery.
The Supreme Court has declined to decide whether the Due Process Clause requires the giving of jury instructions on lesser-included offenses in a non-capital case. See Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980). The Sixth Circuit has interpreted Beck to mean that "the Constitution does not require a lesser-included offense instruction in non-capital cases." Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001) (citing Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir. 1990) ( en banc)), cert. denied, 535 U.S. 975 (2002).
The Supreme Court held in Beck that the death penalty may not be imposed for a capital offense if the jury was not permitted to consider a verdict on a lesser-included non-capital offense, which would have been supported by the evidence. Id. at 627. More recently, the Supreme Court has held that state courts are not required under the Constitution to instruct juries in capital offense cases on crimes that are not lesser included-offenses of the charged crime. See Hopkins v. Reeves, 524 U.S. 88, 90-91 (1998).
The Michigan Court of Appeals stated on review of Petitioner's claim that
[b]oth assault and battery and felonious assault are specific intent crimes in which it must be established that the defendant intended either to injure or to put the victim in reasonable fear or apprehension of an immediate battery. People v. Datema, 448 Mich. 585, 602; 533 N.W.2d 272 (1995); People v. Johnson, 407 Mich. 196, 209-210; 284 N.W.2d 718 (1979). Felonious assault has the added element that the assault is committed with a dangerous weapon. Id. at 222 (Williams, J.), 234-235 (Levin, J.).
In the present case, there is no dispute that defendant drove the Camaro into the police car driven by Officer Blarek. At trial, the defense was limited to the argument that the lack of evidence of injury to Blarek constituted evidence that there was no intent to commit great bodily harm.Whittie, No. 201508, at 6.
The court of appeals concluded that the trial court did not abuse its discretion in refusing to instruct the jury on assault and battery "[b]ecause the jury could not have rationally concluded that defendant committed an assault and battery without using a dangerous weapon." Id. at 6-7. This conclusion did not result in a violation of Beck. Accordingly, Petitioner has no right to habeas corpus relief on the basis of his claim about the lack of a jury instruction on assault and battery.
2. The Defense of Intoxication
Petitioner also alleges that the trial court should have granted his request for a jury instruction on the defense of intoxication. Petitioner possessed a constitutional right to present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984). "A necessary corollary of this holding is the rule that a defendant in a criminal trial has the right, under appropriate circumstances, to have the jury instructed on his or her defense, for the right to present a defense would be meaningless were a trial court completely free to ignore that defense when giving instructions." Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002). "As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1988). However, a defendant does not possess "the right to offer any defense, nor to demand [that] a jury be instructed on any theory." Taylor, 288 F.3d at 853.
There was no evidence presented at trial to support a defense of intoxication, and the facts suggested that Petitioner was not acting under the influence of drugs or alcohol. He was able to lead the police on a high-speed chase down the wrong way of two busy streets and then run away on foot. Therefore, the state appellate court's determination that the trial court did not err in refusing to give an instruction on intoxication did not result in a decision that was contrary to, or an unreasonable application of, Trombetta or Matthews.
E. The Prosecutor
Petitioner claims next that the prosecutor's persuasive and repeated misconduct deprived him of his federal constitutional rights to a fair trial and to due process of law. More specifically, Petitioner contends that the prosecutor (1) overcharged him, (2) improperly enhanced his sentence; (3) infringed on his right to remain silent, (4) failed to correct two police officers' false testimony; and (5) failed to disclose evidence favorable to the defense. Respondent asserts that this claim is procedurally defaulted.
1. Procedural Default
The doctrine of procedural default provides that,
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner procedurally defaulted sub-claims 1 (overcharging), 2 (enhancing the sentence), 3 (comment on the right to remain silent), and 5 (withholding evidence) by not objecting to the alleged prosecutorial misconduct at trial. See People v. Ullah, 550 N.W.2d 568, 574 (1996) (citing People v. Stanaway, 521 N.W.2d 557, 579 (1994)). The Michigan Court of Appeals relied on Petitioner's failure to object at trial by stating in its opinion that the allegations of misconduct were not raised in the trial court.
Petitioner procedurally defaulted sub-claim 4 (suborned perjury) by not raising the issue in the appeal of right. The trial court relied on this procedural default by stating in its order denying Petitioner's motion for relief from judgment that the issue could have been, but was not, raised on appeal. See Mich. Ct. R. 6.508(D)(3) (authorizing courts to deny relief from judgment if the motion alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence unless the defendant alleges cause and prejudice or a significant possibility of innocence). Both the Michigan Court of Appeals and Michigan Supreme Court subsequently denied relief on the basis of Rule 6.508(D).
The procedural rules were adequate grounds for the state courts' denial of relief because they were in effect at the time they were applied. The rules were independent state grounds in that the state courts actually relied on them. Therefore, in order for this Court to review Petitioner's prosecutorial-misconduct claim, he must show cause and prejudice or a miscarriage of justice. Coleman, 501 U.S. at 750.
2. Cause
Petitioner alleges that his trial attorney was "cause" for his failure to object at trial and his appellate attorney was cause for his failure to raise sub-claim 4 in the appeal of right. The Supreme Court has said that constitutionally ineffective assistance of counsel is "cause" for a state procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, the following discussion reveals that Petitioner's attorneys were not ineffective.
a. Overcharging
Petitioner contends that the prosecutor overcharged him with conspiracy. A prosecutor possesses broad authority when selecting a charge so long as there is probable cause to believe the accused committed an offense defined by statute and the decision is not based on an arbitrary classification. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). There is no evidence in the record that the prosecutor based his decision on an improper motive.
Furthermore, there was evidence that Petitioner and his co-defendant were riding in a stolen car and that both men attempted to elude the police. Petitioner later told a police officer that he had been delivering drugs with his companion. These facts were sufficient to support the charge of conspiracy. Consequently, defense counsel was not ineffective for failing to allege that the prosecutor overcharged Petitioner.
Defense counsel did move for a directed verdict of acquittal at the close of the prosecutor's proofs. (Tr. Jan. 28, 1997, at 12).
b. Enhancing the Sentence
Next, Petitioner alleges that the prosecutor improperly enhanced his sentence with prior convictions that should have been suppressed. At the post-trial evidentiary hearing, Petitioner conceded that his pre-sentence report accurately stated his criminal record except for a duplicate listing of the offense of receiving and concealing stolen property. (Tr. July 8, 1997, at 89-91). Defense counsel, moreover, raised the matter of the duplicate offense at the sentencing, and the trial court noted that the sentencing guidelines were not affected by the alleged error. (Tr. Feb. 18, 1997, at 4-5). Therefore, any deficiency on the part of defense counsel did not prejudice Petitioner.c. Comment on the Right to Remain Silent
Petitioner contends that the prosecutor infringed on his right to remain silent and shifted the burden of proof by commenting on defense counsel's failure to produce Petitioner's co-defendant, Billy Powell. Petitioner's defense was that he lacked the necessary intent to commit the crimes and, therefore, the prosecution had failed to prove its case. In keeping with this defense, defense counsel said during his opening remarks, "Where's Billy Powell?" and "Why doesn't Billy Powell come and testify?" (Tr. Jan. 24, 1997, at 38). In his closing argument, defense counsel asked, "[W]here is the agreement?" and "Where's his co-conspirator? I'd like to ask that question. Why isn't he here to testify?" (Tr. Jan. 28, 1997, at 54, 57). The prosecutor said in rebuttal that, if Petitioner had wanted Powell as a witness, he could have served a subpoena on Powell to compel Powell's attendance. Id. at 58. Because part of defense counsel's trial strategy was to emphasize Powell's absence, he was not ineffective for failing to object to the prosecutor's comment.
d. Suborning Perjury
Petitioner alleges that the prosecutor suborned perjury or, at least, failed to correct the police officers' testimony regarding the damage Petitioner supposedly inflicted on an officer's car. Petitioner contends that it was physically impossible for him to ram the passenger side of the car he was driving into the driver's side of the officer's car without sustaining any damage to his car. Therefore, alleges Petitioner, the officer's testimony to the contrary was perjury.
Defense counsel testified at the evidentiary hearing that he used photographs and drew diagrams at trial to convince the jury that Petitioner did not ram the police car and that the police officers' description of the incident was incorrect. (Tr. July 8, 1997, at 24-27). Moreover, as the trial court noted in its ruling on Petitioner's motion for relief from judgment,
[a]t best, defendant is able to point to minor and immaterial possible inconsistencies in the testimony given by the police witnesses to the high speed chase. Most telling, defendant admits to the Court that he is unable to show the physical evidence which would support his contention [that the prosecutor allowed false testimony].People v. Whitte, No. 1995-3263-FH, at 4 (Macomb County Cir. Ct. July 27, 2000). The Court concludes that appellate counsel was not ineffective for failing to raise a claim of suborning perjury on direct appeal.
e. Withholding Favorable Evidence
Petitioner's final claim about the prosecutor is that he failed to disclose evidence favorable to the defense in the form of accident reports and photographs of the officer's car. The record does not support the claim that the prosecutor withheld favorable evidence. In fact, defense counsel testified that he used the prosecutor's photographs and that he read and reviewed police reports. (Tr. July 8, 1997, at 24-25, 38).
In the appeal of right, Petitioner argued that the prosecutor suppressed the keys to the car that Petitioner was driving on the day in question. The court of appeals opined that failure to consider this issue would not result in a miscarriage of justice because Petitioner did not present any evidence to substantiate his claim.
3. Prejudice
The Court concludes for the reasons given above that the failure to make timely objections to the prosecutor's alleged misconduct did not constitute ineffective assistance. Thus, Petitioner has not shown cause for his noncompliance with state procedural rules, and the Court need not determine if Petitioner was prejudiced by the alleged violations of federal law. Smith v. Murray, 477 U.S. 527, 533 (1986).
4. Miscarriage of Justice
The remaining question is whether this Court's failure to consider the substantive merits of Petitioner's claims about the prosecutor will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Carrier, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "To be credible, [a claim of actual innocence] requires [the] petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner has not shown that, in light of some new and reliable evidence, "no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at 329. Accordingly, a miscarriage of justice will not occur as a result of this Court's failure to adjudicate the substantive merits of Petitioner's prosecutorial-misconduct claim. Petitioner's state procedural defaults bars habeas review of his fourth claim.
F. Cumulative Effect of Errors
Petitioner's fifth claim alleges that the cumulative effect of errors deprived him of a fair trial. Respondent argues that this claim is procedurally defaulted because Petitioner did not raise the claim on direct review and because the last two state courts to review Petitioner's claims determined that Petitioner had failed to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D)(3).
Petitioner did not raise his claim about the cumulative effect of the errors in his motion for relief from judgment or in the subsequent appeals. Consequently, the state appellate courts could not have been addressing the claim in their orders, and this Court may not conclude that a procedural default occurred. See Harris v. Reed, 489 U.S. 255, 263-64 (1989) (stating that "[a] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar")
He did allege a variation of his claim on direct review. Specifically, Petitioner argued in the Michigan Supreme Court that the cumulative effect of the prosecutor's and defense counsel's errors deprived him of a fair trial and required reversal of his conviction.
In any event, "[t]he Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief." Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.), petition for cert. filed, (U.S. Nov. 14, 2002) (No. 02-7467). Therefore, the state courts' denial of relief was not contrary to any Supreme Court decision so as to warrant habeas relief. Id.
G. Double Jeopardy
Next, Petitioner alleges that his conviction for possession of stolen property and conspiracy to possess the same property violated his constitutional right not to be punished twice for the same offense. Respondent claims that this claim is procedurally defaulted because Petitioner did not raise the claim on direct review and the state appellate courts subsequently denied relief on collateral review pursuant to Rule 6.508(D)."A double jeopardy claim is not subject to the `good cause' requirement [of Rule 6.508(D)(3)] because it is considered the equivalent of a jurisdictional issue, which a defendant may always challenge." People v. Hughes, 2000 WL 33395308, at *1 n. 1 (Mich.Ct.App. Dec. 1, 2000) (citing People v. Carpentier, 521 N.W.2d 195 (1994) (Riley, J., concurring) and People v. Johnson, 240 N.W.2d 729 (1976)), appeal denied, 631 N.W.2d 344 (2001). Thus, Petitioner did not commit a procedural default when he presented his double jeopardy claim for the first time in his motion for relief from judgment.
The claim nevertheless has no merit because the Supreme Court has said that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses . . . A conviction for the conspiracy may be had though the substantive offense was completed. And the plea of double jeopardy is no defense to a conviction for both offenses." Pinkerton v. United States, 328 U.S. 640, 643 (1946) (citations omitted). Therefore, the state courts' denial of relief did not result in a decision that was contrary to, or an unreasonable application of, Pinkerton, and Petitioner is not entitled to the writ of habeas corpus on the basis of his double jeopardy claim.
H. Appellate Counsel
Petitioner's seventh and final claim is that he was deprived of his constitutional right to the effective assistance of appellate counsel during the appeal of right. Petitioner contends that his appellate attorney did not investigate the case thoroughly or master the trial court record. In addition, Petitioner faults his attorney for not raising all his current claims in the appeal of right.
The trial court adjudicated Petitioner's claim on the merits when ruling on Petitioner's motion for relief from judgment. The court noted that appellate counsel was not required to raise all arguable claims on appeal and that counsel's lack of success was not equivalent to being ineffective.
The Supreme Court has stated that appellants have no absolute right to compel their attorneys to make every nonfrivolous argument on appeal from a conviction. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). To prevail on a claim of ineffective assistance of appellate counsel, Petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the appeal. Strickland, 466 U.S. at 687.
Petitioner's appellate attorney filed a motion for new trial in Petitioner's behalf. He also represented Petitioner at the evidentiary hearing where he presented three witnesses, including Petitioner and Petitioner's trial attorney. Counsel subsequently raised ten claims, including Petitioner's first four habeas claims in a fifty-four page appellate brief. The attorney raised several of the claims on federal constitutional grounds.
Appellate counsel did not raise Petitioner's double jeopardy claim, but that claim has no support under either state or federal law. See Pinkerton, 328 U.S. at 643; People v. Carter, 330 N.W.2d 314, 319 (1982), overruled in part on other grounds by People v. Rodideau, 419 Mich. 458, 483-85; 355 N.W.2d 592 (1984). Appellate counsel also did not raise Petitioner's claim about the cumulative effect of the errors. However, it is unlikely that Petitioner would have prevailed on that claim because the Michigan Court of Appeals found no error in the trial proceedings.
To conclude, the record does not support Petitioner's allegation that appellate counsel did not investigate or master the record below. Nor has Petitioner demonstrated that his attorney's omissions prejudiced the appeal. Accordingly, the trial court's conclusion that appellate counsel's performance was adequate did not result in a decision that was an unreasonable application of Strickland.
IV. Conclusion
Petitioner's claims lack merit or are procedurally defaulted. Therefore, the application for a writ of habeas corpus is DENIED.