ROBERT H. CLELAND, District Judge.
Petitioner Rodney Glenn Davenport filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, challenges his convictions for three counts of first-degree murder. He argues that the trial court erred in admitting into evidence his pre-arrest statement to police, that he received ineffective assistance of counsel, that the prosecutor engaged in misconduct, that the trial court improperly denied a discovery motion, and that the trial court erred in denying a motion for a directed verdict. Respondent has filed a response arguing that the claims are meritless. For the reasons set forth, the court denies the petition.
Petitioner's convictions arise from the July 2006 murders of James Hanson, Allyn Oesterle, and Marie Melzer, in Lapeer, Michigan. The Michigan Court of Appeals provided a factual overview of the case (which is presumed correct on habeas review, see Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D. Mich. 2001), aff'd, 41 F. App'x 730 (6th Cir. 2002)):
Some witnesses also saw defendant with Hanson at a gas station that evening. People v. Davenport, No. 279040, 2009 WL 724116, *1 (Mich. Ct. App. March 19, 2009).
A jury in Lapeer County Circuit Court found Petitioner guilty of three counts of first-degree murder. On June 18, 2007, he was sentenced to life in prison. He filed an appeal as of right in the Michigan Court of Appeals. He raised these claims (the first four through counsel, and the remaining two in a pro per brief):
The Michigan Court of Appeals affirmed Petitioner's convictions. Davenport, 2009 WL 724116, *1.
Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal, People v. Davenport, 772 N.W.2d 408 (Mich. Sept. 28, 2009), and denied Petitioner's motion for reconsideration. People v. Davenport, 775 N.W.2d 750 (Mich. Dec. 21, 2009).
Petitioner then filed the pending habeas petition. He raises the same claims raised in state court.
Petitioner's claims are reviewed under the standard established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:
28 U.S.C. § 2254(d).
"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21; see also Williams, 529 U.S. at 409. "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, ___ U.S. ___, 131 S.Ct. 770, 789 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court] cases—indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original). "[W]hile the principles of `clearly established law' are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).
Lastly, a federal habeas court must presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
In his first habeas claim, Petitioner argues that the trial court erred in admitting his statement to police. Petitioner claims that the statement was involuntary because police failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to questioning him.
The trial court conducted an evidentiary hearing pursuant to People v. Walker, 132 N.W.2d 87 (1965),
Once at the police station, Detective Sergeant Thomas Smith interviewed Petitioner. Detective Sergeant Smith wished to talk to Petitioner because police were investigating a serious crime in the area, a witness had informed police that Petitioner was in the area when the crime occurred, and the police therefore believed Petitioner might have relevant information. Petitioner agreed to talk. Detective Sergeant Smith told Petitioner that he was not under arrest and was free to leave at any time. When the interview concluded, Detective Sergeant Smith drove Petitioner back to the apartment complex. Petitioner rode in the front seat of Smith's vehicle.
The trial court reviewed a videotape of Detective Sergeant Smith's interview of Petitioner and described the interview as "casual, very open" and "very relaxed congenial questioning." Tr., Walker Hearing at 65. The trial court noted that Petitioner was not handcuffed, was left alone in the room several times for extended periods and walked out of the room. After considering the videotape and the testimony of the two police officers, the trial court concluded that the statement was admissible because Petitioner was not in custody at the time it was made.
The Michigan Court of Appeals denied Petitioner's Miranda claim, stating:
The procedural safeguards imposed by Miranda are designed "to safeguard the uncounseled individual's Fifth Amendment privilege against self-incrimination . . . while in police custody." Thompson v. Keohane, 516 U.S. 99, 107 (1995). Custody is determined by examining whether a reasonable person in the suspect's position would believe that he or she was free to leave. Berkemer v. McCarty, 468 U.S. 420, 442 (1984); see also Stansbury v. California, 511 U.S. 318, 323 (1994) ("[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."). "Courts must examine `all of the circumstances surrounding the interrogation' and determine `how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.'" Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting Stansbury, 511 U.S. at 322).
The Supreme Court has characterized this standard for determining whether a person is in custody as a "general" rule. Yarborough, 541 U.S. at 664. When determining whether a state-court adjudication of a claim involved an unreasonable application of clearly established law, more latitude is afforded the state courts in applying a "general" rule:
Id. at 664.
The Michigan Court of Appeals' decision was reasonable. Petitioner voluntarily accompanied Officer Schoenherr to the police station. Detective Sergeant Smith told him he was free to leave at any time. Petitioner was left alone in the interview room, walked around, and left the room. Cf. Mason v. Brunsman, 483 F. App'x 122, 127 (6th Cir. 2012) (concluding that petitioner was in custody when, in addition to other factors, he was supervised by at least three armed officers at all times). Petitioner was not handcuffed or frisked at any time. And, when driven home, Petitioner rode in the front seat beside Detective Sergeant Smith. Considering the totality of these circumstances, the Michigan Court of Appeals' decision that Petitioner was not in custody was not contrary to, or an unreasonable application of, federal law.
In his second habeas claim, Petitioner argues that he received ineffective assistance of counsel when counsel opened the door to prejudicial character evidence. Counsel introduced evidence regarding Petitioner's good character and likeability when drinking. Petitioner claims this was ineffective because it opened the door to rebuttal testimony from Victor Wade Smyszak that Petitioner had been violent in a fight when intoxicated.
To establish that he received ineffective assistance of counsel, a petitioner must show, first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner may show that counsel's performance was deficient by establishing that counsel's performance was "outside the wide range of professionally competent assistance." Id. at 689. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687.
To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court's review of counsel's performance must be "highly deferential." Id. at 689. Habeas relief may be granted only if the state-court decision unreasonably applied the standard established by Strickland for evaluating an ineffective-assistance-of-counsel claim. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). "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." Id. at 123 (internal quotation omitted).
The Michigan Court of Appeals, applying the standard articulated in Strickland, held that counsel's decision to admit character evidence was reasonable. The state appellate court noted that the prosecutor painted a portrait of Petitioner as a "violent, unstable, alcoholic drifter." Davenport, 2009 WL 724116 at * 4. The court concluded it was reasonable for defense counsel to attempt to counter this portrait with testimony that Petitioner, when intoxicated, was generally peaceful. Before defense counsel introduced this character evidence, the prosecutor had already presented testimony that Petitioner had fought when intoxicated. Therefore, defense counsel essentially had nothing to lose in introducing positive character evidence.
The rejection of this claim by the Michigan Court of Appeals is neither contrary to, nor an unreasonable application of, Supreme Court precedent or federal law. Petitioner is unable to overcome the strong presumption that counsel rendered adequate assistance and "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Although some attorneys may not have chosen to present this testimony, that is not the test for habeas review. The Supreme Court has stated that there are "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. Petitioner has failed to demonstrate that his counsel's representation fell below the reasonableness standard set forth in Strickland.
In his third and fourth habeas claims, Petitioner raises claims of prosecutorial misconduct. First, he argues that the prosecutor misstated the evidence when, in closing argument, the prosecutor claimed that Petitioner admitted to VanHorn that he had "done something really bad." Second, Petitioner argues that the prosecutor improperly implied that he was involved in the police investigation and vouched for the quality of the investigation. Despite finding the claims not properly preserved, the Michigan Court of Appeals nevertheless denied them on the merits.
The "clearly established Federal law" relevant to a habeas court's review of a prosecutorial misconduct claim is the Supreme Court's decision in Darden v. Wainwright, 477 U.S. 168, 181 (1986). Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153 (June 11, 2012). In Darden, the Supreme Court held that a "prosecutor's improper comments will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" 132 S.Ct. at 2153 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). At issue is whether the Michigan Court of Appeals's decision denying Petitioner's prosecutorial misconduct claims "`was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" 132 S. Ct. at 2155.
The Michigan Court of Appeals held that the prosecutor's characterization of VanHorn's testimony did not misstate the evidence presented:
Davenport, 2009 WL 724116 at *5 (ellipsis in original).
"[P]rosecutors can argue the record, highlight the inconsistencies or inadequacies of the defense, and forcefully assert reasonable inferences from the evidence." Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005). However, "counsel cannot misstate evidence." United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001). In this case, the prosecutor's argument, while not a direct quote, can be viewed as reasonably capturing the essence of VanHorn's testimony. The state court's finding of no prosecutorial misconduct was a reasonable application of Supreme Court precedent.
Next, Petitioner objects to the prosecutor's use of the words "we," "us," and "we've" when referring to steps taken during the police investigation. Specifically, Petitioner points to these portions of the prosecutor's closing argument:
Tr., Vol. VIII at 1396-97.
The Michigan Court of Appeals held that the prosecutor did not improperly imply that he had been involved in the police investigation and thereby vouch for the validity of the investigation. The Michigan Court of Appeals viewed the prosecutor's use of "we" and "us" as "rhetorical devices used to guide the jury through his analysis of the evidence and resulting conclusions." It continued: "The prosecutor was not attempting to place himself in the middle of the police investigation or vouch for the credibility of this investigation, and his use of this rhetorical device did not constitute outcomedeterminative misconduct." Davenport, 2009 WL 724116 at *6.
The Michigan Court of Appeals correctly assessed the prosecutor's remarks. His closing statement, read in its entirety, is a fair representation of the evidence presented; and there were no attempts to improperly vouch for the police investigation. The state court's denial of Petitioner's prosecutorial misconduct claim was not lacking in justification and habeas relief is denied on this claim.
Petitioner next argues that his right to due process was violated by the trial court's denial of his discovery motion requesting access to witnesses' criminal histories.
To the extent that Petitioner claims that state discovery rules were violated, he is not entitled to habeas relief. "There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Therefore, a claim that state discovery rules were violated is not cognizable in federal habeas review, because it is not a constitutional violation. See Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002); Friday v. Straub, 175 F.Supp.2d 933, 940 (E.D. Mich. 2001).
An evidentiary ruling may warrant habeas relief only where it violates due process. For an evidentiary ruling to violate due process, it must be "so egregious that it results in the denial of fundamental fairness." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). "[T]he Supreme Court has defined `very narrowly' the category of infractions that violates `fundamental fairness.'" Bey v. Bagley, 500 F.3d 514, 522 (6th Cir. 2007) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). A state-court evidentiary ruling does not violate due process unless it "offend[s] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Giles, 449 F.3d at 704 (citing Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir.2001)).
The trial court's denial of Petitioner's discovery motion falls far below this high threshold. The Michigan Court of Appeals held that the trial court properly declined to order the prosecutor to run LEIN inquiries because Michigan law did not permit the prosecutor to do so. Davenport, 2009 WL 724116 at * 6, (citing People v. Elkhoja, 467 Mich. 916, 658 N.W.2d 153 (2003)). The state court's evidentiary ruling, based on Michigan law, does not implicate a firmly-rooted principle of justice so as to implicate due process concerns. Habeas relief is denied on this claim.
Finally, Petitioner argues that the trial court erred in denying his motion for a directed verdict because the prosecutor presented insufficient evidence to prove each element of first-degree premeditated murder. Petitioner's claim that the trial court erred by refusing to enter a directed verdict is a state-law claim not cognizable on federal habeas review. King v. Trippett, 27 F. App'x 506, 510 (6th Cir.2001) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, (1991)). That portion of this claim is denied. The second portion of Petitioner's final claim, that the convictions are not supported by sufficient evidence, is cognizable on federal habeas review.
The Michigan Court of Appeals, applying a standard that mimics the standard established in Jackson v. Virginia, 443 U.S. 307 (1979), held that the trial court did not err in denying Petitioner's motion for directed verdict. The court's analysis, although framed in the context of the directed-verdict claim, also held the prosecution presented sufficient evidence to sustain Petitioner's first-degree murder convictions as to all three victims. After reciting the elements of first-degree premeditated murder, the court stated:
Davenport, 2009 WL 724116 at *7.
"[T]he 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). On direct review, review of a sufficiency of the evidence challenge must focus on 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, 443 U.S. at 319 (emphasis in original). In the habeas context, "[t]he Jackson standard must be applied `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
"Two layers of deference apply to habeas claims challenging evidentiary sufficiency." McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court "must determine whether, viewing the trial testimony and exhibits 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." Brown, 567 F.3d at 205 (citing Jackson, 443 U.S. at 319). Second, if the Court were "to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id.
Under Michigan law, "[in] order to convict a defendant of first-degree murder, the prosecution must prove that the defendant intentionally killed the victim and that the killing was premeditated and deliberate." People v. Anderson, 531 N.W.2d 780, 786 (Mich. Ct. App. 1995). Premeditation may be inferred by the circumstances surrounding the killing. People v. Marsack, 586 N.W.2d 234, 371 (Mich. Ct. App. 1998).
The state appellate court applied the proper standard and thoroughly considered the evidence of Petitioner's guilt. The state court considered Petitioner's initial denial of having ever been in Melzer's apartment, and the forensic evidence showing that, despite his denials, he had recently been there. The state court also considered the testimony that Petitioner was seen with Hanson before he was murdered and that Petitioner was at the apartment complex when Hanson and Oesterle were murdered. In addition, because the victims each suffered multiple stab wounds, the state court concluded that the Petitioner had sufficient time to reflect on his actions. Under Michigan law, "[t]o premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." People v. Morrin, 187 N.W.2d 434, 449 (1971). Although the minimum time required to premeditate "is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" People v. Vail, 227 N.W.2d 535, 539 (1975), overruled on other grounds by People v. Graves, 581 N.W.2d 229 (1998). "[A]n opportunity for a `second look' may be merely seconds, minutes, or hours, dependant on the totality of the circumstances surrounding the killing." Johnson v. Hofbauer, 159 F.Supp.2d 582, 596 (E.D. Mich. 2001). The evidence presented, viewed most favorably to the prosecution, was sufficient for the Michigan Court of Appeals to reasonably find that Petitioner was guilty of first-degree murder.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must show "that reasonable jurists could debate whether (or, for that matter, 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, 484 (2000) (citation omitted). In this case, the court concludes that reasonable jurists would not debate the conclusion that the petition fails to state a claim upon which habeas corpus relief should be granted. Therefore, the court will deny a certificate of appealability.
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and that the action is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
