NANCY G. EDMUNDS, District Judge.
James Moore, ("Petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for second-degree murder, M.C.L.A. § 750.317, felon in possession of a firearm, M.C.L.A. § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b. 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. Moore, No. 298829, 2011 WL 6268206, at *1 (Mich. Ct. App. Dec. 15, 2011).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 491 Mich. 934, 814 N.W.2d 292 (2012).
Petitioner returned to the trial court and filed a motion for relief from judgment which raised six claims, which was denied. People v. Moore, No. 09-0020960-01-FC (Wayne County Cir. Ct., July 2, 2013). Petitioner's application for leave to appeal was denied. People v. Moore, No. 319815 (Mich. Ct. App. Feb. 27, 2014); lv. den. 497 Mich. 868, 853 N.W.2d 366 (2014).
Petitioner now 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).
Petitioner first argues that his retrial was barred by double jeopardy because the prosecutor goaded him into moving for a mistrial by intentionally introducing prejudicial evidence that Mr. Sobczak, petitioner's alibi witness, was a sexual offender.
The Michigan Court of Appeals rejected petitioner's claim as follows:
"The Double Jeopardy Clause . . . protect[s] a defendant against governmental actions intended to provoke mistrial requests . . . ." United States v. Dinitz, 424 U.S. 600, 611 (1976). In Oregon v. Kennedy, the Supreme Court clarified that Dinitz bars retrial "[o]nly where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial. . . ." 456 U.S. 667, 676 (1982)(emphasis added). The Supreme Court has never expanded the rule of Dinitz and Kennedy to cover cases in which "the prosecutorial misconduct in the first trial aimed only to secure a conviction." Aceval v. MacLaren, 578 F.App'x 480, 483 (6th Cir. 2014).
"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 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).
During the first trial, the prosecutor produced evidence that the sex offender registry had two addresses listed for Sobczak. Petitioner's address was not one of the listed addresses. This evidence was relevant to impeach Sobczak's trial testimony that he resided with petitioner on the day of the shooting.
As a result of the testimony pertaining to the sex offender registry, petitioner moved for a mistrial on the seventh day of trial, after the prosecution had rested its case, and without any indication that the case was going poorly. The prosecutor argued vehemently against petitioner's motion for a mistrial. The prosecutor also argued for a curative instruction, which petitioner opposed. There was no indication that the prosecutor asked Mr. Sobczak about the sex offender registry to goad petitioner into requesting a mistrial. In rejecting petitioner's double jeopardy claim, the Michigan Court of Appeals found that the questions posed by the prosecutor to Sobczak were relevant to establishing that Sobczak was not residing with petitioner at the time of the shooting. A prosecutor does not commit misconduct by asking witnesses relevant questions. See Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006). The Michigan Court of Appeals further found that petitioner "failed to provide any reason why the prosecutor would have been motivated to obtain a mistrial." Moore, 2011 WL 6268206, at *3.
The Michigan Court of Appeals reasonably determined that, "A prosecutor's good-faith effort to admit evidence does not constitute misconduct." Moore, 2011 WL 6268206, at *2. accord Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). "The prosecutor made logical arguments to support her position, her arguments were not baseless, and she submitted caselaw to the trial court that she believed supported her position that the evidence was admissible." Moore, 2011 WL 628206, at *2. Petitioner demanded a mistrial over objections made by the prosecutor. The trial court did not err by refusing to dismiss petitioner's case based on double jeopardy grounds when petitioner demanded a mistrial based on evidence offered by the prosecutor which was relevant to impeach witness testimony. Petitioner is not entitled to relief on his first claim.
Petitioner next contends that he is entitled to habeas relief due to a violation of his right to confrontation by the admission into evidence of a statement made by a police officer who did not testify at trial.
Respondent argues that petitioner waived this claim when he "specifically acquiesced to the prosecutor playing the DVD of [petitioner]'s police interview as rebuttal evidence,"[]"thereby extinguishing any error." Moore, 2011 WL 6268206, at *4.
Waiver is an "`intentional relinquishment of a known right.'" United States v. Olano, 507 U.S. 725, 733 (1993)(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A criminal defendant who has waived his rights "may not then seek appellate review of claimed deprivation of those rights, for his waiver has extinguished any error." United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996)(citing Olano, 507 U.S. at 733-34). See also Shahideh v. McKee, 488 F.App'x 963, 965 (6th Cir. 2012)("waiver is a recognized, independent and adequate state law ground for refusing to review alleged trial errors"). The right to confrontation may be waived, including by a failure to object to the "offending evidence." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (2009). Because defense counsel stipulated to the admission of this evidence, petitioner has waived review of his Confrontation Clause claim. See United States v. Chun Ya Cheung, 350 F.App'x 19, 21-22 (6th Cir. 2009). Moreover, a defendant in a criminal case cannot complain of error which he himself has invited. Shields v. United States, 273 U.S. 583, 586 (1927). When a petitioner invites an error in the trial court, he is precluded from seeking habeas corpus relief for that error. See Fields v. Bagley, 275 F.3d 478, 486 (6th Cir. 2001). By agreeing to the admission of statements made by the police officer during a custodial interrogation, petitioner is precluded from seeking habeas relief on his second claim.
Petitioner contends that he is entitled to habeas relief because he claims that the State's star witness, Arkena Anderson, posted an admission on Facebook that her trial testimony was perjured.
In his motion for relief from judgment, petitioner presented the trial court with "new evidence" in the form of a printout of a conversation on Facebook between a user purporting to be Arkena Anderson and a woman identified as "Ily Taylor Faith." In the conversation, "Faith" accuses Ms. Anderson of lying and setting up her cousin, who purportedly was petitioner. In the exchange, Ms. Anderson denies it, saying that she never said that petitioner killed her uncle, only that she said she saw petitioner with a gun.
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). However, 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).
Mere inconsistencies in a witness' testimony do not establish the knowing use of false testimony by the prosecutor. Coe, 161 F.3d at 343. The fact that a witness contradicts himself or herself or changes his or her story also does not establish perjury. Malcum v. Burt, 276 F.Supp.2d 664, 684 (E.D. Mich. 2003)(citing Monroe v. Smith, 197 F.Supp.2d 753, 762 (E.D. Mich. 2001)). A habeas petition should be granted if perjury by a government witness undermines the confidence in the outcome of the trial. Id.
Assuming that Ms. Anderson was the person posting on Facebook, petitioner failed to show that Ms. Anderson committed perjury. At trial, Anderson never testified that she saw petitioner shoot the victim, only that she saw petitioner with a gun following Rayford's shooting and that she heard petitioner make incriminating statements. Ms. Anderson's trial testimony is consistent with her alleged comments on Facebook.
There are only two inconsistencies. First, in the Facebook conversation, Anderson claims that she "never said" petitioner murdered the victim, but at trial she testified that she identified petitioner as the shooter to Detroit Police Sergeant Gary Diaz. (Tr. 5/18/10, p. at 86). Second, in the Facebook conversation, "Anderson" said, "I [sic] told them he didnt [sic] do it[.]"
Mere inconsistencies in a witness' testimony do not establish perjury nor does the fact that the witness changes his or her story. Moreover, the Facebook conversation took place after petitioner's trial. Petitioner has not shown that the prosecutor knowingly elicited false testimony, or allowed known false testimony to go uncorrected. The Facebook conversation does not establish that the prosecutor knew of any untruthful statements made by Anderson. Petitioner is not entitled to habeas relief on his perjury claim, because he has failed to show that the prosecutor knew that Ms. Anderson testified falsely on this matter. See Rosencrantz v. Lafler, 568 F.3d 577, 587 (6th Cir. 2009).
Petitioner's related actual innocence claim based on newly discovered evidence is unconnected to any colorable claim of a violation of his rights under the Constitution. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). Petitioner has not shown that the prosecutor provided perjured testimony or failed to correct perjured testimony offered at trial. Petitioner is not entitled to relief on his actual innocence/perjury 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
