NANCY G. EDMUNDS, District Judge.
Anthony D. Phillips, ("Petitioner"), presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney James Sterling Lawrence, in which he challenges his conviction for first-degree felony murder, M.C.L.A. 750.316. For the reasons that follow, the petition for a writ of habeas corpus is
Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
People v. Phillips, No. 300533, 2013 WL 2223388, at *1-5 (Mich. Ct. App. May 21, 2013).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 495 Mich. 882, 838 N.W.2d 151 (2013).
Petitioner seeks a writ of habeas corpus on the following grounds:
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." 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." Id. at 410-11. "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
The Court notes that the Michigan Court of Appeals reviewed and rejected petitioner's second through sixth claims under a plain error standard because petitioner failed to preserve the issues as a constitutional claim at the trial court level.
In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth Circuit held that the AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. In a subsequent decision, the Sixth Circuit held that that plain-error review is not equivalent to adjudication on the merits, so as to trigger AEDPA deference. See Frazier v. Jenkins, 770 F.3d 485, 496 n. 5 (6th Cir. 2014). The Sixth Circuit noted that "the approaches of Fleming and Frazier are in direct conflict." Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When confronted by conflicting holdings of the Sixth Circuit, this Court must follow the earlier panel's holding until it is overruled by the United States Supreme Court or by the Sixth Circuit sitting en banc. See Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court believes that the AEDPA's deferential standard of review applies to these claims, even though they were reviewed only for plain error.
Petitioner first contends that there was insufficient identity to establish his identity as the murderer. The Michigan Court of Appeals rejected petitioner's claim as follows:
It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). This 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. Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original).
A federal habeas court may not overturn a state court decision that rejects a sufficiency of the evidence claim simply because the federal court disagrees with the state court's resolution of that claim. Instead, a federal court may grant habeas relief only if the state court decision was an objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S.Ct. 2, 4 (2011). "Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold." Id. For a federal habeas court reviewing a state court conviction, "the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor was observed at trial. 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). A habeas court therefore must defer to the fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). The Court does not apply the reasonable doubt standard when determining the sufficiency of evidence on habeas review. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).
Under Michigan law, "[T]he identity of a defendant as the perpetrator of the crimes charged is an element of the offense and must be proved beyond a reasonable doubt." Byrd v. Tessmer, 82 F.App'x. 147, 150 (6th Cir. 2003)(citing People v. Turrell, 25 Mich.App. 646, 181 N.W.2d 655, 656 (1970)).
Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence at trial to exclude every reasonable hypothesis except that of guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted). Identity of a defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194 F.Supp.2d 629, 648 (E.D. Mich. 2002). Eyewitness identification is not necessary to sustain a conviction. See United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp. 2d at 648.
In the present case, there was sufficient circumstantial evidence from which a rational trier of fact could have concluded that petitioner murdered Mr. Tarver. The evidence showed that the person who broke into Mr. Tarver's house cut himself, because there was blood on the shattered window glass. A tissue with blood on it was found on the victim's kitchen table. Petitioner's DNA matched the DNA on the bloody tissue on 12 of 13 loci. Petitioner's thumbprint was recovered from a box of Band-Aids in the bathroom. It appeared to the police that a Band-Aid was recently used, because the Band-Aids box was sitting on the bathroom sink and there were peeled strips from the back of the Band-Aid on the bathroom floor. Police found blood on a checkbook in the dresser drawer in the southeast bedroom of the home. Expert testimony showed that petitioner's DNA matched the DNA on the checkbook on 3 of 13 loci. The recovery of petitioner's DNA and fingerprint from several sites at the victim's house was sufficient in and of itself to establish petitioner's identity as the perpetrator. See e.g. U.S. v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999). As the Michigan Court of Appeals noted, the jury could have reasonably inferred that petitioner left the bloody tissue on the kitchen table after he cut himself breaking into Mr. Tarver's basement, used a Band-Aid to cover his wound, and left his blood on the checkbook while ransacking the southeast bedroom, either before or after murdering the victim.
Because there were multiple pieces of evidence to establish petitioner's identity as the perpetrator, the Michigan Court of Appeals did not unreasonably apply Jackson v. Virginia in rejecting petitioner's sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919-21 (6th Cir. 2012). Petitioner's first claim is without merit.
Petitioner next contends that he was denied the right to present a defense.
Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he or she also has the right to present his own witnesses to establish a defense. This right is a fundamental element of the due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986)("whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense'")(internal citations omitted). However, an accused in a criminal case does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court has indicated its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. The Supreme Court gives trial court judges "wide latitude" to exclude evidence that is repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or confusion of the issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Rules that exclude evidence from criminal trials do not violate the right to present a defense unless they are "`arbitrary' or `disproportionate to the purposes they are designed to serve.'" United States v. Scheffer, 523 U.S. 303, 308 (1998)(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
Under the standard of review for habeas cases as enunciated in § 2254(d)(1), it is not enough for a habeas petitioner to show that the state trial court's decision to exclude potentially helpful evidence to the defense was erroneous or incorrect. A habeas petitioner must show that the state trial court's decision to exclude the evidence was "an objectively unreasonable application of clearly established Supreme Court precedent." See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 2003). Additionally, "the Supreme Court has made it perfectly clear that the right to present a `complete' defense is not an unlimited right to ride roughshod over reasonable evidentiary restrictions." Id. at p. 512.
Petitioner first claims that he was denied his right to present a defense because his counsel was precluded from asking Officer Kimber about possible contamination of the evidence.
Petitioner's counsel questioned Officer Kimber in great detail about the procedures he used when collecting evidence and the possibility that the evidence might have been contaminated. (Tr, 8/24/10, pp. 84-89, 99-104, 106-108, 110-115, 133-136). The judge sustained the prosecutor's objection when counsel, after asking Kimber about what other evidence technicians might have done with saline solution, asked him a hypothetical question about someone touching blood or a surface with saline solution. (Id., p. 105). Because Officer Kimber was the person who collected the evidence and there was no basis in fact for the hypothetical, the question was irrelevant or speculative.
"The inquiry in reviewing a claim of improper exclusion of evidence is whether the evidence was rationally connected to the crime charged and, if its exclusion was so prejudicial as to deprive the defendant of a fundamentally fair trial." Jones v. Smith, 244 F.Supp.2d 801, 814 (E.D. Mich. 2003). The trial court's decision to preclude defense counsel from asking Officer Kimber a hypothetical question did not violate petitioner's right to confrontation or due process, because the evidence was only remotely relevant to raise questions about the possibility of the contamination of the evidence. See Farley v. Lafler, 193 F.App'x. 543, 546 (6th Cir. 2006). Although "[t]he Confrontation Clause places meaningful limits on a trial judge's ability to exclude evidence under a state's rules of evidence, those limits are not relevant when the information in question has virtually no probative value[,]." Id. at 547. Because defense counsel's hypothetical question was speculative, the trial court's refusal to permit him to ask Officer Kimber the question did not deprive petitioner of a fair trial.
Moreover, the judge's ruling was not so egregious that it effectively denied petitioner a fair trial, in light of the fact that petitioner was not completely barred from questioning Officer Kimber about his procedures at the crime scene and the possible contamination of the evidence. See Fleming v. Metrish, 556 F.3d at 535-36. With the quantum of evidence on the defense theory in the record, this Court concludes that the petitioner was afforded "a meaningful opportunity to present a complete defense." Allen v. Howes, 599 F.Supp.2d 857, 873 (E.D. Mich. 2009)(citing Crane, 476 U.S. at 690 (citation and internal quotations omitted)).
Petitioner next contends that the judge prevented him from questioning Ms. Allen about Mr. Tarver's house cleaning habits.
As the Michigan Court of Appeals noted in rejecting petitioner's claim, the trial judge initially refused to permit petitioner to ask this question because he had not provided a foundation for his questioning. People v. Phillips, 2013 WL 2223388, at *8. Excluding evidence on the ground that the criminal defendant had failed to establish an adequate foundation for its admission under state law does not violate a defendant's right to present a defense. See U.S. ex rel. Winters v. Mizell, 644 F.Supp. 782, 793 (N.D. Ill. 1986); see also Dell v. Straub, 194 F. Supp. 2d at 644 (Requiring a defendant to lay a foundation for the admissibility of certain evidence does not violate the Confrontation Clause). In any event, once defense counsel demonstrated that Ms. Allen had been back to Mr. Tarver's house after moving out, petitioner was able to question her about the condition of Mr. Tarver's house during those visits. With the quantum of evidence on the defense theory in the record, petitioner was given "a meaningful opportunity to present a complete defense." Allen v. Howes, 599 F. Supp. 2d at 873.
Petitioner next claims that the trial judge improperly prevented counsel from questioning Ms. Allen about petitioner's visits to Mr. Tarver's house, in order to give an innocent explanation why petitioner's blood and thumbprint were recovered from the house.
The Michigan Court of Appeals rejected this claim as follows:
People v. Phillips, 2013 WL 2223388, at *8.
In the present case, the trial court's decision to prevent Ms. Allen from testifying about how petitioner's fingerprint got on a Band-Aid box or how his blood got on the tissue did not deprive petitioner of a fair trial, because testimony beyond Ms. Allen's personal knowledge would have violated M.R.E. 602 and was therefore properly excluded under the rules of evidence. See McCullough v. Stegall, 17 F.App'x. 292, 296 (6th Cir. 2001).
Fourth, petitioner claims that the trial court precluded counsel from questioning Ms. Allen about their brother Bobby's drug addiction and previous arrest for robbery charges, in order to establish that he was the actual murderer.
The Michigan Court of Appeals rejected petitioner's claim as follows:
People v. Phillips, 2013 WL 2223388, at *8.
In light of the fact that petitioner was able to present evidence that his brother Bobby might have been the murderer, the trial court's refusal to permit petitioner to question Ms. Allen about Bobby's drug addiction or prior arrest did not deprive petitioner of a meaningful opportunity to present a defense. See Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010). Petitioner is not entitled to habeas relief on his second claim.
Petitioner next claims that he was denied his right of confrontation was violated when several persons testified regarding the actions and findings of other individuals who did not testify at trial.
Out of court statements that are testimonial in nature are barred by the Sixth Amendment Confrontation Clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the court. See Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
Petitioner first contends that his right to confrontation was violated when Dr. Loewe was permitted to testify about the findings from the autopsy conducted by Dr. Frasier. The Michigan Court of Appeals agreed that Dr. Loewe's testimony violated petitioner's right to confrontation but found the error to be harmless because the cause of death was not at issue, only the identity of the murderer. People v. Phillips, 2013 WL 2223388, at *9.
Confrontation Clause violations are subject to harmless error review. See Bulls v. Jones, 274 F.3d 329, 334 (6th Cir. 2001). In Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), the U.S. Supreme Court held that for purposes of determining whether federal habeas relief must be granted to a state prisoner on the ground of federal constitutional error, the appropriate harmless error standard to apply is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. In determining whether a Confrontation Clause violation is harmless under Brecht, a court should consider the following factors: "(1) the importance of the witness' testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross examination otherwise permitted; and (5) the overall strength of the prosecution's case." See Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir. 2009)(citing Delaware v. Van Arsdall, 475 U.S. at 684).
In the present case, the autopsy had no bearing on petitioner's guilt because the cause of death was not at issue, only the identity of the perpetrator, which the autopsy shed no light on. Petitioner has failed to show that the admission of Dr. Frasier's autopsy report through Dr. Loewe's testimony had a substantial and injurious effect or influence on the verdict. When "[V]iewed through the deferential lens of AEDPA, the state court's harmlessness ruling must stand" because based on the record in this case, the Michigan Court of Appeals reasonably rejected any potential error in the admission of the autopsy report as harmless error. See Kennedy v. Warren, 428 F.App'x. 517, 522, 523 (6th Cir. 2011).
Petitioner next contends that Marci McCleary's testimony about the fingerprints lifted from the crime scene violated his right of confrontation. McCleary testified that in 1987, Officers Frelich and Moore compared petitioner's fingerprints with the prints that another officer lifted at the crime scene. As the Michigan Court of Appeals noted, People v. Phillips, 2013 WL 2223388, at *9, Ms. McCleary did not mention the results of that comparison. Instead, Ms. McCleary did her own comparison between the fingerprints and the prints recovered from the crime scene.
Any testimony by Officer McCleary concerning any prior fingerprint comparisons was harmless error at most, in light of the fact that these findings were cumulative of Officer McCleary's testimony, who was subject to cross-examination at petitioner's trial. See U.S. v. Barnes, 183 F.App'x. 526, 530-31 (6th Cir. 2006).
Petitioner finally contends that Officer Braxton's testimony regarding the jacket recovered from petitioner's house during an earlier raid violated his right of confrontation. During direct examination, Officer Braxton agreed that the "file" reflected that the police executed a search warrant at petitioner's residence and that a jacket was seized during the execution of that warrant and was delivered to the police crime laboratory. As the Michigan Court of Appeals noted in rejecting petitioner's claim, any error in Officer Braxton's testimony that he reviewed the file for the search warrant was offset by the fact that he actually participated in the execution of the search warrant. Furthermore, petitioner's jacket was not highly probative of petitioner's guilt. Phillips, 2013 WL 2223388, at *9. Officer Braxton's testimony about the search warrant and the jacket recovered from petitioner's house was harmless error because the jacket did not implicate petitioner in the murder, particularly where there was other ample evidence linking petitioner to the crime. See e.g. U.S. v. Driver, 535 F.3d 424, 428 (6th Cir. 2008). Petitioner is not entitled to relief on his third claim.
Petitioner claims he was denied his right to a fair trial because of prosecutorial misconduct.
"Claims of prosecutorial misconduct are reviewed deferentially on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor's improper comments will be held to violate a criminal defendant's constitutional rights only if they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was so egregious as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his or her prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012)(quoting Harrington, 562 U.S. at 103).
In his fourth claim, petitioner contends that the prosecutor committed misconduct when he asked Ms. Allen about the fact that she had refused to sign a statement that she made to the police on March 11, 1987 until she spoke with a lawyer.
A prosecutor may not imply that an accused's decision to meet with counsel, even shortly after the incident which gives rise to the criminal charges, implies guilt. A prosecutor must also refrain from suggesting to the jury that a defendant hired an attorney to generate an alibi or to get his or her "story straight". Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990)(internal citations omitted). However, the Supreme Court has never held that a prosecutor cannot question a witness other than a defendant about whether he or she consulted with a lawyer. Given the lack of holdings by the Supreme Court on the issue of whether a prosecutor can question a witness about consulting with an attorney, the Michigan Court of Appeals' rejection of petitioner's prosecutorial misconduct claim was not an unreasonable application of clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 (2006).
In his fifth claim, petitioner contends that the prosecution improperly subverted the presumption of innocence by arguing that "there's no such thing as a free murder" during his opening statement and closing argument. The Michigan Court of Appeals rejected petitioner's claim as follows:
People v. Phillips, 2013 WL 2223388, at *11 (internal citations omitted).
Petitioner is not entitled to habeas relief because in the context of his comments, the prosecutor did not undermine the concept of the presumption of innocence. See Bowling v. Parker, 344 F.3d at 513. In addition, the prosecutor's comments did not render petitioner's trial fundamentally unfair in light of the fact that the trial court gave the jury the correct instruction on the presumption of innocence. See Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999).
Petitioner next contends that the prosecutor committed misconduct by permitting Officer Braxton to testify falsely that the jacket had been seized from petitioner's house at the time of the murder in 1987, when in fact it had been seized earlier in 1986.
The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations omitted). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). A habeas petitioner must show that a witness' statement was "indisputably false," rather than misleading, to establish a claim of prosecutorial misconduct or a denial of due process based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000). Conclusory allegations of perjury in a habeas corpus petition must be corroborated by some factual evidence. Barnett v. United States, 439 F.2d 801, 802 (6th Cir.1971).
Petitioner is not entitled to relief on his claim because he failed to show that Officer Braxton intentionally testified falsely about seizing the jacket from petitioner's residence on March 11, 1987. Officer Braxton testified at the post-trial evidentiary hearing that he reviewed a laboratory analysis report for the jacket before testifying at trial. The report stated that police seized the jacket from 9074 Westwood and that the laboratory received the jacket for analysis on March 12, 1987. Officer Braxton testified that he assumed from reading this report that the police seized the jacket during the March 11, 1987 search of petitioner's home. Officer Braxton denied that he spoke with the trial prosecutor about deceiving the jury with his testimony. Officer Braxton denied even speaking with the prosecutor about his proposed testimony prior to trial. The prosecutor just asked him to review the laboratory report. The trial prosecutor testified at the post-evidentiary hearing that he also thought that the police seized the jacket during their execution of the search warrant on March 11, 1987 based upon on the date of the search warrant and the laboratory report. The test results for the jacket were included on the same report as the other evidence from the Tarver murder scene. The trial prosecutor did not learn that his assumption was incorrect until he read appellate counsel's motion for a new trial. The prosecutor testified that he did not intend to make Officer Braxton testify falsely about this matter. The trial judge, in rejecting petitioner's post-trial motion for a new trial, found the prosecutor's testimony to be credible.
Petitioner is not entitled to habeas relief on his claim because he failed to show that Officer Braxton deliberately testified falsely about the date that the jacket was seized from petitioners home. Petitioner's claim also fails because he failed to show that the prosecutor knew that Officer Braxton testified falsely about the seizure of the jacket from petitioner's residence on March 11, 1987. See Rosencrantz v. Lafler, 568 F.3d 577, 587 (6th Cir. 2009). Petitioner is also not entitled to relief because the jacket was not material to petitioner's conviction, because it was not a "crucial link" in the case against petitioner. See e.g. Foley v. Parker, 488 F.3d 377, 392 (6th Cir. 2007). The jacket was never linked to the murder or even to petitioner. Accordingly, petitioner is not entitled to relief on his sixth claim.
Petitioner contends that he was denied the effective assistance of trial counsel.
To show that he or she 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. 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. The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, "the question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable-a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington v. Richter, 562 U.S. at 101. Indeed, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a "doubly deferential judicial review" applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, "[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself."Harrington, 562 U.S. at 101. "Surmounting Strickland's high bar is never an easy task." Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner first argues that his trial counsel was ineffective for failing to file a motion to quash the information, because he claims that there was insufficient evidence to bind him over to the circuit court for trial. As a related claim, petitioner argues that trial counsel was ineffective for failing to move for a directed verdict.
The Michigan Court of Appeals rejected petitioner's claim as follows:
People v. Phillips, 2013 WL 2223388, at *13 (internal citation omitted).
There was sufficient evidence presented at the preliminary examination to support petitioner's bindover to circuit court. Accordingly, petitioner is unable to show that counsel was ineffective for failing to file a motion to quash the information. See e.g. Dell v. Straub, 194 F. Supp. 2d at 649. The evidence was sufficient to prove petitioner's identity as the murderer, thus, counsel's failure to move for a directed verdict did not amount to ineffective assistance of counsel. Maupin v. Smith, 785 F.2d 135, 140 (6th Cir. 1986); see also Hurley v. United States, 10 F.App'x. 257, 261 (6th Cir. 2001).
Petitioner next contends that trial counsel was ineffective for advising him not to testify in his own defense. The Michigan Court of Appeals rejected this claim as follows:
People v. Phillips, 2013 WL 2223388, at *14 (internal citations omitted).
Although the issue of ineffective assistance of counsel presents a mixed question of law and fact, any underlying historical facts found by the state courts are presumed correct. West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). The presumption of correctness also "applies to implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility." Carey v. Myers, 74 F.App'x. 445, 448 (6th Cir. 2003)(citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996)). The trial judge concluded that trial counsel testified credibly about his reasons for not wanting to put petitioner on the witness stand, including his concern that petitioner would commit perjury. Petitioner has presented no evidence to rebut the trial judge's credibility determination that counsel had valid reasons for not putting petitioner on the witness stand, particularly counsel's belief, based on his privileged conversations with petitioner, that his client would commit perjury. This credibility determination is buttressed by the fact that when trial counsel was recalled to testify during the post-conviction hearing and was ordered by the trial judge to divulge the contents of his privileged conversation with petitioner, counsel refused to do so even though it resulted in him being held in contempt of court and sentenced to jail. (Tr. 6/28/11, pp. 13-15).
A defendant cannot show prejudice based upon his or her counsel's refusal to present perjured testimony, even if such testimony might have affected the outcome of the case. Lafler v. Cooper, 132 S.Ct. 1376, 1387 (2012). Defense counsel's decision to discourage petitioner from testifying was not deficient, as required to support a claim of ineffective assistance of counsel, because counsel believed that he would have been suborning perjury if petitioner had taken the witness stand. See e.g. Mann v. Ryan, 828 F.3d 1143, 1153 (9th Cir. 2016). Petitioner is not entitled to relief on this claim.
Petitioner next claims that trial counsel was ineffective for failing to object to the Confrontation Clause errors that he alleged in Claim # 3, supra.
"The prejudice prong of the ineffective assistance analysis subsumes the Brecht harmless-error review." Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). This Court already determined that the admission of this evidence was harmless error. Because the admission of this evidence was harmless error, petitioner cannot satisfy Strickland's prejudice requirement. See e.g. Bell v. Hurley, 97 F.App'x. 11, 17 (6th Cir. 2004).
Petitioner next contends that trial counsel was ineffective for failing to call an expert witness to challenge the DNA evidence.
The Michigan Court of Appeals rejected this claim as follows:
People v. Phillips, 2013 WL 2223388, at *16 (internal citation omitted).
Petitioner is not entitled to relief on his claim for several reasons.
First, trial counsel did retain an expert on DNA, but this expert advised counsel that his findings would not be favorable to petitioner. The constitution does not require counsel to look for more than one expert witness. "Effective assistance does not require counsel to continue contacting experts until he found one . . . willing to testify against the prosecution's theory of the case." Flick v. Warren, 465 F.App'x. 461 465 (6th Cir. 2012)(petitioner's counsel in a second-degree murder prosecution was not ineffective for failing to call an expert to challenge the science underlying Shaken Baby Syndrome, after counsel had contacted three doctors seeking help with the case and had received unfavorable responses from all three).
Secondly, petitioner failed to show that he has an expert witness who could successfully challenge the prosecution's DNA evidence. A habeas petitioner's claim that trial counsel was ineffective for failing to call an expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Petitioner has offered no evidence to this Court that there is an expert who would have impeached the DNA evidence offered by the prosecution.
Petitioner next contends that his trial counsel should have called petitioner's mother and other sister to testify as defense witnesses.
The Michigan Court of Appeals rejected petitioner's claim as follows:
People v. Phillips, 2013 WL 2223388, at *16.
Petitioner was not prejudiced by counsel's failure to call petitioner's mother and other sister to testify because their testimony was cumulative of Ms. Allen's testimony. Wong, 558 U.S. at 22-23; see also United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995); Johnson v. Hofbauer, 159 F.Supp.2d 582, 607 (E.D. Mich. 2001). In this case, the jury had significant evidence presented to it in support of petitioner's claim that he had been a guest at Mr. Tarver's home on multiple occasions, to support his argument that there were innocent reasons for his thumbprint and blood to have been recovered from the victim's house. Because the jury was "well acquainted" with evidence that would have supported petitioner's argument that his blood and thumbprint were not linked to the murder but could have been placed at the victim's house during a prior visit, additional evidence in support of petitioner's defense "would have offered an insignificant benefit, if any at all." Wong, 558 U.S. at 23. Moreover, petitioner was not prejudiced by counsel's failure to call petitioner's other sister to testify about the actual date that the jacket was seized from petitioner's house, because the jacket was not incriminating.
Petitioner next contends that trial counsel was ineffective for failing to object to the prosecutorial misconduct he alleged in Claims # 4 and # 5. To show prejudice under Strickland for failing to object to prosecutorial misconduct, a habeas petitioner must show that but for the alleged error of his trial counsel in failing to object to the prosecutor's improper questions and arguments, there is a reasonable probability that the proceeding would have been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). Because the Court has already determined that the prosecutor's comments did not deprive petitioner of a fundamentally fair trial, petitioner is unable to establish that he was prejudiced by counsel's failure to object to these remarks. Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
Petitioner also argues that trial counsel failed to object to Officer Braxton's perjured testimony. Petitioner failed to show that Officer Braxton committed perjury, thus, counsel was not ineffective for failing to challenge this testimony on the ground that it was perjured. Brown v. Burt, 65 F.App'x. 939, 942 (6th Cir. 2003).
Petitioner finally contends that trial counsel was ineffective for failing to object to the admission of blood-type evidence. The Michigan Court of Appeals rejected this claim on the ground that this evidence was admissible. People v. Phillips, 2013 WL 2223388, at *17.
Federal habeas courts "`must defer to a state court's interpretation of its own rules of evidence and procedure' when assessing a habeas petition." Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the Michigan Court of Appeals determined that most, not all, of this evidence was admissible under Michigan law, this Court must defer to that determination in resolving petitioner's ineffective assistance of counsel claim. See Brooks v. Anderson, 292 F.Appx. 431, 437-38 (6th Cir. 2008). The failure to object to relevant and admissible evidence is not ineffective assistance of counsel. See Alder v. Burt, 240 F.Supp.2d 651, 673 (E.D. Mich. 2003). Petitioner is not entitled to relief on this claim.
The Court will deny the petition for a writ of habeas corpus with prejudice. 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 U.S. 473, 483-84 (2000). "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F.Supp.2d 846, 875 (E.D. Mich. 2010).
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. See Allen v. Stovall, 156 F.Supp.2d 791, 798 (E.D. Mich. 2001). The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is
IT IS FURTHER ORDERED That a certificate of appealability is
IT IS FURTHER ORDERED that Petitioner will be
