Opinion
Case No. 99-CV-72667-DT
January 31, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter currently is before the Court on the pro se habeas corpus petition of Robert Winburn, who is also known as Scott Libby. Also before the Court are Petitioner's motions for discovery, for access to police and laboratory files, and for immediate consideration of the latter motion.
The habeas petition challenges Petitioner's 1992 state court convictions. A detailed procedural history follows. This background information demonstrates that Petitioner appears to have exhausted state remedies for his claims and that his claims are either procedurally defaulted or lacking in merit.
II. Background
On January 9, 1992, a jury in the former Recorder's Court for the City of Detroit, Michigan convicted Petitioner of (1) first-degree felony murder, Mich. Comp. Laws Ann. § 750.3 16; Mich. Stat. Ann. § 28.548, (2) assault with intent to commit murder, Mich. Comp. Laws Ann. § 750.83; Mich. Stat. Ann. § 28.278, and (3) possession of a firearm during the commission of a felony, Mich. Comp. Laws Ann. § 750.227b; Mich. Stat. Ann. § 28.424(2). The convictions arose from the shooting of John Green and James Barganier in Detroit on November 8, 1990.
The murder was alleged to have occurred during the course of a robbery. The prosecution's key witness was Green. He testified that he knew [Petitioner] for about 1 1/2 years before the incident. According to Green, at around 9:00 p.m. on November 8, 1990, Barganier and Green went to Green's house. No one else was home. Barganier watched television in the living room and made a phone call, while Green went to the kitchen for some food. About ten minutes later, while Green was still in the kitchen, he heard a popping noise in the living room. Then, as Green was taking something out of the microwave oven, he saw [Petitioner] standing over him with a gun. Green testified that he thought he was being robbed and that he told [Petitioner] that he could `take all this s-h-i-t up out of here,' but later gave inconsistent testimony regarding his exact statements to [Petitioner] and whether he made his statements before of (sic) after [Petitioner] started shooting at him. Green was shot several times as he tried to get away. After [Petitioner] stopped shooting, he took money and a cordless phone from the dinning (sic) room table and left.People v. Winburn, No. 152551 (Mich.Ct.App. May 26, 1994)(White, J., concurring in part and dissenting in part).
The trial court sentenced Petitioner to concurrent terms of life in prison for the murder conviction and fifteen to thirty years in prison for the assault conviction. The trial court sentenced Petitioner to a consecutive two-year term for the felony firearm conviction.
On direct review of his convictions and sentences, Petitioner's court-appointed attorney raised issues concerning: (1) the trial court's denial of his motion for new trial; (2) the jury instruction on prior inconsistent statements; (3) the jury instruction on felony murder; (4) the prosecutor's questions to witnesses about Petitioner's alleged nickname; and (5) the trial court's failure to investigate Petitioner's allegation that a juror slept through crucial portions of the defense evidence. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished per curiam opinion. See People v. Winburn, No. 152551 (Mich.Ct.App. May 26, 1994).
In a supplemental pro se brief Petitioner alleged that: (1) the trial court should have given a jury instruction on drug informants; (2) the prosecutor used false testimony; (3) the trial court's jury instruction on intent was erroneous; (4) the trial court erred in refusing to have testimony re-read; and (5) defense counsel was ineffective for, among other things, failing to request a jury instruction on John Green's use of illegal drugs.
Judge Helene N. White concurred in the majority opinion in all respects except for the holding on Petitioner's claim about the additional jury instructions given to the jury during its deliberations. Judge White opined that the additional jury instructions required the felony murder conviction to be vacated and the case remanded for either retrial on the felony-murder charge or entry of a judgment of conviction of second-degree murder with resentencing.
Petitioner appealed through counsel to the Michigan Supreme Court, which vacated Petitioner's felony murder conviction and remanded the case to the trial court. The basis for the vacated conviction was a jury instruction, which implied that the intent to commit the underlying offense may be formed after the homicide. The supreme court gave the prosecutor the option of retrying Petitioner on the felony murder charge or permitting the trial court to enter a conviction of second-degree murder, followed by re-sentencing. The supreme court denied leave to appeal in all other respects. See People v. Winburn, No. 100833 (Mich.Sup.Ct. Sept. 13, 1995). On remand, the prosecution opted for entry of a second-degree murder conviction, and the trial court sentenced Petitioner to twenty-five to fifty years for second-degree murder.
Petitioner appealed his new sentence, claiming through counsel that: (1) he should be sentenced by a different judge because the trial judge believed he was guilty of felony murder; (2) the trial court erred in scoring the sentencing guidelines; (3) the sentence was excessive and disproportionate; (4) he should be re-sentenced on the assault conviction; and (5) the trial court erred in sentencing him to a maximum term of 600 months. The Michigan Court of Appeals was unpersuaded by Petitioner's arguments and affirmed his sentence for second-degree murder. See People v. Winburn, No. 192394 (Mich.Ct.App. July 8, 1997). Petitioner raised the same claims in the Michigan Supreme Court, which denied leave to appeal. See People v. Winburn, No. 110259 (Mich.Sup.Ct. May 28, 1998).
Meanwhile, in 1997, Petitioner filed a motion for relief from judgment in the trial court. He asserted that: (1) he was deprived of the effective assistance of appellate counsel; (2) he was deprived of the effective assistance of trial counsel; (3) there was a significant possibility that he was innocent; (4) the prosecutor failed to disclose exculpatory evidence; (5) the prosecution failed to lay a proper foundation for the admission of John Green's out-of-court statement and then admitted a police officer's testimony to prove the truth of the statement; (6) the prosecutor bolstered a witness's testimony with prior consistent statements; (7) the prosecutor elicited a prejudicial nickname for Petitioner; (8) the prosecutor improperly elicited testimony concerning threats Petitioner allegedly made to a witness; (9) the prosecutor misrepresented material trial testimony; (10) the trial court failed to give crucial evidence to the jury; (11) he was deprived of his constitutional right to testify in his own defense; (12) the prosecutor engaged in misconduct by mocking the presumption of innocence, denigrating the alibi defense, making insinuations calculated to prejudice defense witnesses, misstating the evidence, appealing to the jurors' sympathy, injecting irrelevant evidence, infringing on the right to remain silent, shifting the burden of proof, using perjured testimony, vouching for the credibility of prosecution witnesses, and injecting racial issues into the case; (13) the trial court erred when instructing the jury on witnesses' prior statements; (14) trial counsel failed to present important expert witness testimony; (15) trial counsel failed to investigate and present crucial expert testimony regarding the bullet wound; (16) trial counsel failed to impeach a crucial prosecution witness; (17) he was deprived of an impartial jury by the deficient performance of trial counsel; (18) the trial court abused its discretion in denying the motion for new trial; (19) the prosecution failed to prove its theory beyond a reasonable doubt; (20) the cumulative effect of the errors violated his right to due process; and (21) his second-degree murder conviction violated the Double Jeopardy Clause. The trial court denied Petitioner's motion for relief from judgment, citing M.C.R. 6.508 (D)(3).
Petitioner appealed the trial court's decision, and, at the same time, moved for permission to exceed the fifty-page limit for appellate briefs. The court of appeals denied Petitioner's motion to exceed the page limit, see People v. Winburn, No. 207851 (Mich.Ct.App. Mar. 30, 1998), and the Michigan Supreme Court denied leave to appeal the lower court's decision regarding page limits, see People v. Winburn, No. 111957 (Mich.Sup.Ct. June 29, 1998). Petitioner then submitted a shortened application for leave to appeal in the Michigan Court of Appeals, asserting that: (1) the trial court erred when it summarily dismissed his motion for relief from judgment; (2) the court should adopt a less restrictive reading of M.C.R. 6.508(D); (3) he was deprived of the effective assistance of appellate counsel; (4) he was deprived of his constitutional right to testify in his own defense; (5) the prosecution failed to disclose exculpatory material; and (6) the prosecutor (a) failed to lay a proper foundation for the admission of John Green's out-of-court statement, (b) failed to endorse Officer Monti as a witness, and (c) used Officer Monti's testimony to prove the truth of Green's statement. The court of appeals denied leave to appeal "for failure to establish grounds for relief from judgment pursuant to MCR 6.508(D) and for lack of merit in the grounds presented." People v. Winburn, No. 207851 (Mich.Ct.App. Aug. 5, 1998).
Petitioner applied for leave to appeal in the Michigan Supreme Court, raising the same issues that he had presented to the Michigan Court of Appeals. The supreme court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed. . . ." People v. Winburn, No. 112918 (Mich.Sup.Ct. Mar. 30, 1999).
On June 7, 1999, Petitioner filed his application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a supporting brief. His grounds for relief are:
I. PETITIONER WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT TO TESTIFY IN HIS OWN DEFENSE TN VIOLATION OF THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE, AND TRIAL COUNSEL'S ADVICE WAS DEFICIENT AND DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
II. PETITIONER WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL AND ACCESS TO CRITICAL EVIDENCE WHEN THE STATE FAILED TO DISCLOSE THE CONTENTS OF FINGERPRINT LIFTS FOUND AT THE SCENE OF THE CRIME AND WHICH COULD HAVE ONLY BEEN LEFT BY THE PERPETRATOR, AND TRIAL COUNSEL'S FAILURE TO RESEARCH AND INVESTIGATE THE RESULTS OF THE FINGERPRINT LIFTS DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
III. PETITIONER'S FOURTEENTH AMENDMENT DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL WAS VIOLATED WHERE THE TRIAL PROSECUTOR CALLED A PROSECUTION WITNESS WHO WAS NOT ON THE ENDORSED WITNESS LIST, AND ADMITTING THE OFFICER'S TESTIMONY TO PROVE THE TRUTH OF THE MATTER ASSERTED OF THE COMPLAINT'S (sic) OUT OF COURT HEARSAY STATEMENT, CREATING AN UNACCEPTABLE RISK THAT THE JURY WOULD ACCEPT IT AS SUBSTANTIVE EVIDENCE OF GUILT, AND TRIAL COUNSEL'S FAILURE TO OBJECT OR REQUEST A MISTRIAL OR LIMITING INSTRUCTION DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
IV. PETITIONER WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL, WHERE THE CREDIBILITY OF A CRUCIAL PROSECUTION WITNESS WAS IMPROPERLY BOLSTERED BY ADMISSION OF PRIOR CONSISTENT STATEMENTS
V. THE PETITIONER WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL WHERE THE TRIAL COURT FAILED TO EXERCISE HIS DISCRETION IN TURNING OVER CRUCIAL EVIDENCE AT THE JURY'S REQUEST, AND TRIAL COUNSEL'S FAILURE TO OBJECT OR ADMIT THE BLOOD EVIDENCE AS AN EXHIBIT WAS DEFICIENT PERFORMANCE AND DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
VI. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE COUNSEL FAILED TO IMPEACH A CRUCIAL PROSECUTION WITNESS WITH SUBSTANTIAL EVIDENCE THAT WOULD HAVE MADE A DIFFERENCE IN THE OUTCOME.
VII. PETITIONER WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL BY MATERIAL AND SUBSTANTIAL MISCONDUCT BY THE PROSECUTOR IN MOCKING THE PRESUMPTION OF INNOCENCE, DENIGRATING THE ALIBI DEFENSE, AND ARGUING FACTS NOT IN EVIDENCE, TRIAL COUNSEL'S FAILURE TO OBJECT OR REQUEST A MISTRIAL OR CAUTIONARY INSTRUCTION DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
A. THE PROSECUTOR MISSTATED THE EVIDENCE.
B. THE PROSECUTOR IMPROPERLY USED PERJURED TESTIMONY.
C. THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESS AND PETITIONER'S GUILT.
D. THE CUMULATIVE EFFECT OF MULTIPLE ERRORS DEPRIVED PETITIONER OF HIS DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL
VIII. THE PETITIONER'S SECOND DEGREE MURDER CONVICTION MUST BE VACATED UNDER THE DOUBLE JEOPARDY CLAUSE
IX. PETITIONER WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE DEFICIENT PERFORMANCE OF APPELLATE COUNSEL.
X. MICHIGAN'S OVERLY RESTRICTIVE READING OF MCR 6.508(D) AND ABDICATION OF THE EXERCISE OF DISCRETION ON POST-CONVICTION RELIEF DEPRIVED PETITIONER OF AN ADEQUATE, FULL, AND FAIR OPPORTUNITY TO VINDICATE VIOLATIONS OF FUNDAMENTAL CONSTITUTIONAL GUARANTEES, AND CONSTITUTES AN INDEPENDENT VIOLATION OF THE DUE PROCESS CLAUSE. THUS, RENDERING MCR 6.508 (D) AN INADEQUATE CORRECTIVE PROCESS AND PROCEDURAL RULE.
XI. THE MICHIGAN COURT OF APPEALS AND SUPREME COURT VIOLATED PETITIONER'S FUNDAMENTAL RIGHT OF ACCESS TO THE COURTS IN DENYING PETITIONER PERMISSION TO EXCEED THE FIFTY PAGE LIMIT.
XII. THE STATE COURTS IMPROPERLY HELD PETITIONER TO THE HIGH STANDARDS OF SKILLED ATTORNEYS.
In an amended petition and brief filed on September 10, 1999, Petitioner alleges that:
I. TRIAL COUNSEL'S FAILURE TO REQUEST AN ADDICT INFORMER CAUTIONARY INSTRUCTION TO SUPPORT HIS THEORY OF DEFENSE DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
II. TRIAL COUNSEL'S FAILURE TO OBJECT OR REQUEST A MISTRIAL OR LIMITING INSTRUCTION TO THE PROSECUTOR'S REPEATED ASKING WITNESSES ABOUT PETITIONER'S ALLEGED NICKNAME `WHITE BOY ROB,' DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHERE THAT NICKNAME WAS HIGHLY PREJUDICIAL, AND THE TESTIMONY WAS NOT NECESSARY TO THE IDENTIFICATION ISSUE IN THE CASE.
III. PETITIONER WAS DEPRIVED OF HIS DUE PROCESS CLAUSE RIGHT TO TESTIFY IN HIS OWN DEFENSE BY THE DEFICIENT ADVICE OF DEFENSE COUNSEL.
IV. THE PETITIONER'S SECOND DEGREE MURDER CONVICTION MUST BE VACATED UNDER THE FIFTH AMENDMENT DOUBLE JEOPARDY CLAUSE, AND THIS ISSUE CANNOT BE PROCEDURALLY DEFAULTED BECAUSE UNDER MICHIGAN PRECEDENT A DOUBLE JEOPARDY CLAIM IS A JURISDICTIONAL DEFECT THAT CAN BE RAISED AT ANY TIME.
Respondent has filed an answer to the habeas petition through counsel. He urges the Court to deny the habeas petition on the grounds that: (1) Claims I-VII and IX are procedurally defaulted and do not warrant habeas review; (2) Petitioner's eighth claim is without merit and does not warrant habeas corpus review; and (3) Claims X-XII are not cognizable on habeas review. Petitioner alleges in reply that his claims are not procedurally defaulted or, in the alternative, that he has established "cause and prejudice" and a miscarriage of justice.
III. Discussion
A. General Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim 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)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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.Williams, 120 S.Ct. at 1523. "[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 1521.
When a state court fails to articulate its reasoning, the federal court must "conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). This independent review "remains deferential" to the state court's decision that the petitioner was not entitled to relief. Id.
B. Claims I — VII
Petitioner raised Claims I-VII of his original petition and Claim III of his amended petition in his motion for relief from judgment. Respondent asserts that these claims are barred from habeas review by Petitioner's state procedural default.
The third claim of the amended petition is the same as the first claim in the original petition.
The doctrine of procedural default provides that,
[w]hen a habeas petitioner fails to obtain consideration of a claim by a state court . . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case.Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989). When analyzing a procedurally a defaulted claim, a federal habeas court must consider:
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.White v. Schotten, 201 F.3d 743, 749 (6th Cir.), cert. denied sub nom Bagley v. White, ___ U.S. ___ 121 S.Ct. 332 (2000).
1. The Procedural Rule in Question and Reliance on the Rule
Michigan Court Rule 6.508(D)(3) provides that a state court may not grant relief from judgment if the defendant alleges grounds for relief that could have been raised on appeal. An exception may be made when the defendant demonstrates good cause for the omission and actual prejudice or that he is innocent of the crime. Petitioner violated the essence of Rule 6.508(D)(3) by failing to raise all his claims on direct review of his conviction and sentence.
The trial court invoked Rule 6.508(D)(3) when Petitioner raised Claims I-VII in a motion for relief from judgment. Petitioner argues that the trial court's ruling was not a "clear and express" indication that its judgment rested on a state procedural bar. See Harris v. Reed, 489 U.S. 255, 263 (1989) (holding 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").
The Court disagrees. The trial court quoted Rule 6.508(D)(3) in its order denying Petitioner's motion for relief from judgment. The trial court then concluded after a cursory analysis of Petitioner's claims that he had not shown good cause for failing to raise the claims on appeal or actual prejudice from the alleged irregularities. This language, in conjunction with the quoted rule, satisfied the requirement of a "clear and express" statement that the court's judgment rested on a state procedural bar. Cf. Gonzales v. Elo, 233 F.3d 348, 352-53 (6th Cir. 2000). The trial court's alternative holding that Petitioner's claims lacked merit does not preclude this Court from concluding that Petitioner's claims are procedurally defaulted. See id. at 353; Harris, 489 U.S. at 264 n. 10; Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989).
Petitioner argues next that the Michigan Supreme Court lifted the procedural bar and reached the merits of his claims. When determining whether a state court's judgment rested on an independent and adequate state procedural rule, a federal court must "look through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991); Coach v. Jabe, 951 F.2d 94 (6th Cir. 1991).
Both the Michigan Court of Appeals and the Michigan Supreme Court addressed Petitioner's applications for leave to appeal in one-sentence orders. The court of appeals denied leave to appeal "for failure to establish grounds for relief from judgment pursuant to MCR 6.508(D) and for lack of merit in the grounds presented." Winburn, No. 207851 (Mich.Ct.App. Aug. 5, 1998). The Michigan Supreme Court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed. . . ." Winburn, No. 112918 (Mich.Sup.Ct. Mar. 30, 1999). Neither appellate court set aside the procedural default or adjudicated Petitioner's claims on the merits in a reasoned opinion. Thus, it is proper to "look through" the appellate orders to the trial court's reasoned opinion on Petitioner's post-conviction motion.
2. Adequate and Independent State Ground
Rule 6.508(D) became effective on October 1, 1989, long before Petitioner's 1992 trial and subsequent direct appeal. Consequently, Petitioner can be deemed to have been apprised of Rule 6.508(D), and it was an adequate and independent state ground for foreclosing review in state court. Gonzales, 233 F.3d at 353-54; Luberda v. Trippett, 211 F.3d 1004, 1006-08 (6th Cir. 2000). Accordingly, Petitioner must show cause for his procedural error and resulting prejudice or a miscarriage of justice.
3. Cause and Prejudice
Petitioner alleges in Claim IX that his appellate attorney was ineffective for failing to raise Claims I-VII in the appeal of right. Ineffective assistance of counsel that rises to the level of a constitutional violation is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). The trial court, however, concluded on post-conviction review that Petitioner's appellate attorney was not ineffective and, therefore, Petitioner had not demonstrated cause for his procedural error. This Court has concluded for the following reasons that the trial court's decision was not an unreasonable application of Supreme Court precedent.
Petitioner has the burden of demonstrating that appellate counsel's performance was deficient and that the deficient performance prejudiced the appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, 529 U.S. 446 (1999). The trial court noted in its opinion that Petitioner was represented by the State Appellate Defender's Office on direct appeal and by one of the most experienced appellate lawyers in the state. This Court also notes that Petitioner's appellate attorney was successful in reducing Petitioner's first-degree murder conviction, which carried a mandatory life sentence without the possibility of parole, to seconddegree murder, which resulted in a sentence of twenty-five to fifty years.
Furthermore, Petitioner had no absolute right to compel his attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the sound professional judgment of counsel. . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). The following cursory review of Petitioner's claims demonstrates that appellate counsel was not ineffective for failing to raise Claims I-VII in the appeal of right.
a. Failure to Testify
Petitioner's first claim is that he was deprived of his right to testify. He alleges that his attorney did not advise him of his absolute right to testify and that the attorney would not permit him to testify. Petitioner also alleges that his attorney gave him incorrect advice about whether the prosecutor could have impeached Petitioner with evidence of an unrelated shooting incident.
Petitioner possessed a constitutional right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987). However, the trial record is silent about whether Petitioner actually wanted to testify and was prohibited from doing so by defense counsel, and Petitioner has not alleged that he alerted appellate counsel of his desire to testify. Under the circumstances, appellate counsel could presume that Petitioner assented in the decision not to testify and that trial counsel rendered adequate assistance. See Gonzalez, 233 F.3d at 356-57 (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)). For these reasons, appellate counsel's failure to raise the issue on appeal did not constitute ineffective assistance.
b. Failure to Disclose
Petitioner's second claim is that the prosecution failed to disclose important information about fingerprints and that defense counsel's failure to investigate the matter constituted ineffective assistance of trial counsel. Petitioner contends that the fingerprints must have been left by the perpetrator and that an analysis of the prints could have exonerated him.
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963).
[F]avorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 685 (1985)).
An evidence technician testified at Petitioner's trial that he lifted two fingerprints from a Pepsi Cola bottle and two fingerprints from a Mountain Dew bottle found in John Green's home after the shooting. See T I at 166. The evidence technician did not know whether the fingerprints were ever identified. See id.
"T" refers to the transcript of trial, which consists of four volumes: T I (January 6, 1992); T II (January 7, 1992); T III (January 8, 1992); and T IV (January 9, 1992).
Even if a comparison was made and the prosecution determined that Petitioner's fingerprints were not on the bottle, the evidence was not material to guilt or innocence. There was no testimony that the perpetrator brought a Pepsi Cola bottle or Mountain Dew bottle into the residence or touched bottles that were already there. John Green testified that he did not know who drank the Pepsi and that he did not recall drinking either beverage himself on the day of the shooting. He indicated, however, that the household normally bought soft drinks. See T I at 245-46.
In summary, there is no evidence that the prosecutor suppressed favorable evidence. Nor is there a reasonable possibility that the result of the proceeding would have been different had the results of any fingerprint analysis been disclosed to the defense. Therefore, appellate counsel was not ineffective for failing to raise Petitioner's second claim in the appeal of right.
c. Endorsement of Witness
Petitioner's third claim is that the prosecutor called Police Officer Deborah Monti to the stand although Monti was not an endorsed witness. Monti testified about John Green's statement to her while Green was hospitalized. See T II at 118-20. Petitioner contends that Monti's testimony was used unfairly to bolster Green's credibility and that defense counsel's failure to object or to ask for a limiting jury instruction constituted ineffective assistance of counsel.
Failing to endorse a witness before calling the witness to testify did not violate any federal constitutional right. Hence v. Smith, 37 F. Supp.2d 970, 982 (E.D. Mich. 1999) (citing cases). Furthermore, John Green's statement to Officer Monti was partially inconsistent with Green's trial testimony. Therefore, Monti's testimony about Green's statement to her arguably made Green appear less credible, and it did not seriously harm Petitioner's case as he contends. The Court concludes that appellate counsel was not ineffective for failing to challenge on appeal the use of Officer Monti's testimony.
d. Admission of Prior Consistent Statements
Petitioner's fourth claim is that the prosecutor erred by eliciting testimony from Sergeant Arlie Lovier concerning a statement made to him by Gail Homes, who was John Green's girlfriend. Homes testified that Green told her Petitioner shot him. See T II at 36. Homes admitted on direct examination that she initially told the police she did not know who shot Green. Homes explained that she was afraid at first to tell the truth. See id. at 37-39. The prosecutor subsequently called Sergeant Lovier, who testified that Homes indicated in her second statement to him that Petitioner shot Green. See id. at 111.
It is highly unlikely that the result of the trial would have been different absent Sergeant Lovier's testimony about Gail Homes' statement to him. Homes previously testified about her conflicting statements to Lovier. Moreover, the primary focus of Lovier's testimony was on tips he received from John Green and on Green's identification of Petitioner at a photographic array and at a line-up. See id. at 104-11. To conclude, Sergeant Lovier's testimony about Gail Homes statement to him could not have prejudiced Petitioner, and appellate counsel's failure to raise Petitioner's claim in the appeal of right was not ineffective assistance of counsel.
e. Releasing Evidence to the Jury
Petitioner's fifth claim is that the trial court abused its discretion in failing to give crucial evidence to the jury and that defense counsel's failure to object was ineffective assistance. The evidence in dispute concerned blood samples. A prosecution witness testified that he found blood in John Green's kitchen, in his back hallway, and on the love seat. See T I at 162. A defense witness testified that James Barganier's blood was found in the hallway, see T II at 202-03, but John Green had implied that Barganier was fatally shot in the living room while lying on a couch and watching television. See T I at 175-77, 184-85.
During its deliberations, the jury requested "information on the blood in the hallway, blood on the couch, and who the blood belonged to." T III at 27-28. The trial court responded to the jurors by saying, "I can only say to you that the evidence is in on that either by way of testimony, or by way of the exhibits that are already into evidence. And, you have to take that and use it for what's already there." Id. at 31.
The jurors possessed the exhibits, and it was not unreasonable for the trial court to expect the jurors to collectively recall the testimony about blood samples. Accordingly, appellate counsel was not ineffective for failing to raise Petitioner's fifth claim in the appeal of right.
f. Failure to Impeach
Petitioner's sixth claim is that trial counsel was ineffective when he failed to impeach John Green with photographs depicting Green's dining room. Petitioner claims that the photographs did not reveal a Louis Vuitton carrying case on the dining room table as Green had testified. See T I at 179-80, 217.
Defense counsel cross-examined John Green extensively. See id. at 195-250; T II at 5-18, 23-25. He even asked Green about the carrying case and about his inconsistent testimony at the preliminary examination where Green said that the carrying case had been in the living room. See T I at 236-38. Therefore, appellate counsel was not ineffective for failing to raise Petitioner's sixth claim in the appeal of right.
g. The Prosecutor
In his seventh claim, Petitioner alleges that the prosecutor misstated the evidence, used perjured testimony, and vouched for the credibility of a prosecution witness. Petitioner also alleges that defense counsel should have objected to the prosecutor's conduct and that the cumulative effect of the errors deprived him of a fair trial.
Prosecutors may argue reasonable inferences from the evidence, but they may not misstate evidence. United States v. Carter, ___ F.3d ___, No. 99-5430, 2001 WL 40376, at *6-7 (6th Cir. Jan. 18, 2001). The disputed comments in this case consisted of (1) a summary of John Green's statement to Officer Monti, see T II at 264-65 199-20, and (2) an attempt to explain discrepancies in John Green's testimony, see id. at 265. The record does not support Petitioner's allegation that the prosecutor misstated the evidence.
Petitioner asserts next that the prosecutor used perjured testimony. The "perjury," however, concerned insignificant testimony about the Louis Vuitton carrying case from which Petitioner allegedly stole money. Green testified at the preliminary examination that the carrying case had been in the living room. At trial, he testified that the carrying case was in the dining room, and that he probably misunderstood the question at the preliminary examination. See T I at 236.
Although prosecutors may not use perjured testimony, see Napue v. Illinois, 360 U.S. 264, 269 (1959), the disputed testimony in this case was merely an inconsistency, and not all inconsistencies in testimony amount to perjury. See Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988). Petitioner has failed to show that Green's trial testimony about the location of the carrying case was material, that it was false, and that the prosecution knew it was false. Therefore, his allegation of perjury lacks merit. United States v. Hawkins, 969 F.2d 169, 175 (6th Cir. 1992).
Petitioner's final allegation about the prosecutor is that she improperly vouched for John Green's credibility. Ordinarily, prosecutors "may not express a personal opinion concerning the guilt of the defendant or the credibility of trial witnesses." Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999).
The prosecutor did not imply in this case that she was aware of evidence known only to herself. Cf. United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999) (stating that improper "[b]olstering occurs when the prosecutor implies that the witness's testimony is corroborated by evidence known to the government, but not known to the jury"). Rather, the prosecutor stated in closing arguments that John Green had no motive to lie. The prosecutor also pointed out reasons why the jury should believe Green despite discrepancies in his testimony. See T II at 230-38, 264-67. It was permissible to "argue that the jury should arrive at a particular conclusion based upon the record evidence, including the conclusion that the evidence prove[d] the defendant's guilt." Caldwell, 181 F.3d at 737.
In conclusion, the prosecutor's conduct and comments were not improper. Therefore, trial counsel was not ineffective for failing to object to the prosecutor's comments, and appellate counsel was not ineffective for failing to assert a claim of prosecutorial misconduct on direct appeal.
4. Summary of the "Cause and Prejudice" Analysis
For the reasons given above, appellate counsel's performance was not deficient despite his failure to raise Claims I-VII in the appeal of right, and even if it was deficient, Petitioner was not prejudiced. Consequently, the trial court's conclusion that appellate counsel was not ineffective was a reasonable application of Strickland, and Petitioner has no right to habeas relief on the basis of his ninth claim. The Court further concludes that ineffective assistance of appellate counsel is not "cause" for Petitioner's failure to raise Claims I-VII in the appeal of right. The Court need not determine if Petitioner was prejudiced by the alleged violations of federal law because he has not shown cause for his procedural error. Smith v. Murray, 477 U.S. 527, 533 (1986); Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982).
5. Miscarriage of Justice
The remaining question is whether this Court's failure to consider Claims I-VII on the merits will result in a miscarriage ofjustice. A fundamental miscarriage of justice occurs when the alleged 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. "To be credible, [a claim of actual innocence] requires [P]etitioner to support his allegations of constitutional error with new reliable accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner has not supported his claims with any new reliable evidence that was not presented at trial. Furthermore, John Green testified that he knew Petitioner for about a year or more before the incident. He had sold some tire rims to Petitioner, and he also had engaged in illegal drug transactions with Petitioner. Green identified Petitioner at trial as the man who shot him, killed his friend, and took some of his possessions. See T I at 170-94.
Petitioner has not demonstrated a credible claim of actual innocence. Consequently, a miscarriage of justice will not result from the Court's refusal to review Claims I-VII on the merits, and Petitioner's state procedural default bars full habeas review of those claims.
C. Claim VIII
The eighth claim of the habeas petition, and the fourth claim of the amended petition, allege that Petitioner's second-degree murder conviction must be vacated because it violates the Double Jeopardy Clause. Petitioner was charged with, and initially convicted of; first-degree felony murder, but the jury was permitted to consider second-degree murder as a lesser included offense. See T III at 15-16, 24. Petitioner argues that the jury acquitted him of second-degree murder and, therefore, the entry of a second-degree murder conviction, following his appeal of right, violated the prohibition against being twice placed in jeopardy.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V. The Clause "is applicable to the States through the Fourteenth Amendment." Benton v. Maryland, 395 U.S. 784, 787 (1969). It protects against a second prosecution for the same offense after acquittal or after conviction and against multiple punishments for the same offense. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-07 (1984). "The Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (emphasis added).
As previously explained, the Michigan Supreme Court vacated Petitioner's first-degree murder conviction because of an error in the jury instructions. The supreme court then remanded Petitioner's case for a retrial on the first-degree murder charge or for entry of a second-degree murder conviction. On remand, the prosecutor chose to have a conviction of second-degree murder entered.
The Double Jeopardy Clause did not bar reprosecution because Petitioner's conviction was overturned on appeal for an error at trial. Nelson, 488 U.S. at 38. Accordingly, the state courts' refusal to grant relief on Petitioner's double jeopardy claim was not contrary to, or an unreasonable application of; Supreme Court precedent, and Petitioner is not entitled to habeas relief on the basis of his eighth claim.
D. Claims X-XII
Claims X-XII challenge the state court's review of Petitioner's motion for relief from judgment and subsequent appeals. Petitioner's tenth claim alleges that the trial court's restrictive reading of M.C.R. 6.508(D) on post-conviction review and abdication of discretion deprived him of a fair and adequate opportunity to vindicate violations of his constitutional rights. Petitioner contends that the trial court issued a boilerplate denial of his post-conviction motion and did not provide any legitimate findings of fact and conclusions of law in its order. Petitioner's eleventh and twelfth claims allege that the state courts' enforcement of a rule limiting appellate briefs to fifty pages violated his constitutional right of access to the courts and unfairly held him to the high standards of skilled attorneys.
The Court may grant the writ of habeas corpus only if Petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) and 2254(a). "The federal habeas court does not act as an additional state appellate court to review a state court's interpretation of its own law or procedure." Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Consequently, Petitioner's arguments that the state courts abused their discretion or violated state law and procedures are not grounds for habeas relief Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)); Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995); Oviedo, 809 F.2d at 328. In particular, the trial court's alleged failure to include more specific findings of fact and conclusions of law in its order on Petitioner's post-conviction motion did not violate the Constitution and is not a basis for habeas relief. Arizona v. Washington, 434 U.S. 497, 516-17 (1978); Harris v. Rivera, 454 U.S. 339, 344-45 (1981).
Petitioner did possess a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). However, enforcing a rule that limited Petitioner to a fifty-page brief did not deprive him of access to the court. He could have reduced his brief without sacrificing any of his claims. The Court concludes that the state court orders on collateral review of Petitioner's conviction were not contrary to, or unreasonable applications of; Supreme Court decisions.
E. Failure to Request a Jury Instruction on Drug Addicts
Petitioner's first claim of his amended petition alleges that defense counsel's failure to request a cautionary instruction regarding John Green's involvement in illegal drugs constituted ineffective assistance. To prevail on his claim, Petitioner must show that his trial attorney's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
The jury was made aware of John Green's involvement with illegal drugs, see T I at 141-42, 172, 191, and Green was impeached with his testimony from the preliminary examination concerning the extent of his illegal drug activities. See id. at 208-10. Furthermore, the trial court instructed the jurors on how to evaluate testimony. See T III at 7-10.
Thus, even if defense counsel's performance was deficient in failing to request a specific jury instruction on evaluating John Green's testimony, the deficiency could not have prejudiced Petitioner. The state court decisions denying relief to Petitioner were not contrary to, or an unreasonable application of Strickland, and Petitioner has no right to habeas relief on the basis of his claim.
F. Failure to Object to Use of a Nickname
The second claim in Petitioner's amended petition alleges that defense counsel's failure to object to the prosecutor's use of Petitioner's alleged nickname ("White Boy Rob") deprived him of the effective assistance of counsel. Citing People v. Wershe, 166 Mich. App. 602 (1988), Petitioner contends that use of the nickname was highly prejudicial because it resulted in a comparison of Petitioner with a well-known criminal defendant and alleged drug dealer called "White Boy Rick."
The nickname "White Boy Rob" was not inherently prejudicial, and Wershe's trial presumably occurred years before Petitioner's 1992 trial. Moreover, the prosecutor used the nickname to help establish the identity of the person about whom witnesses testified. See, e.g., T I at 176; T II at 38-39. Thus, the prosecutor's use of the nickname was not improper, and Petitioner's trial attorney was not ineffective for failing to object to use of the nickname. The state courts' denial of relief on Petitioner's claim was not contrary to, or an unreasonable application of; Strickland, and Petitioner has no right to habeas relief on the basis of his claim.
IV. Conclusion
For all the reasons given above, Petitioner's application for the writ of habeas corpus is DENIED. Petitioner's motion for immediate consideration of his motion for access to police and laboratory files [docket entry #53] is GRANTED. However, Petitioner's motions for discovery [docket entry #46] and for access to police and laboratory files [docket entry #52] are DENIED.