ELLEN S. CARMODY, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following a jury trial in the Muskegon County Circuit Court, Petitioner was convicted of assault with intent to commit great bodily harm less than murder, MICH. COMP. LAWS § 750.84, and unarmed robbery, MICH. COMP. LAWS § 750.530. On January 30, 2009, Petitioner was sentenced as a fourth felony offender, MICH. COMP. LAWS §769.12, to respective prison terms of 9 to 25 years and 15 to 25 years. In his pro se petition, Petitioner raises fifteen grounds for relief, as follows:
(Pet., docket #1, Page ID##4-31.) Respondent has filed an answer to the petition (docket #11) stating that the grounds should be denied because they are non-cognizable, procedurally defaulted, and/or without merit. Upon review and applying the AEDPA standards, I find that all of the grounds are either procedurally defaulted, non-cognizable, or without merit. Accordingly, I recommend that the petition be denied.
The state prosecution arose from Petitioner striking his cousin, Darin Sargent, with sufficient force to break Sargent's jaw and to cause him to fall to the pavement, resulting in a head injury. Petitioner was charged with assault with intent to cause great bodily harm less than murder. A preliminary examination was held on July 2, 2008, at which time Petitioner dismissed his retained attorney, Joseph Fisher, and represented himself. (7/2/08 Prelim. Exam. Tr. at 5, docket #14.) After the evidence was introduced, the prosecutor moved to add a count of unarmed robbery. (Id. at 37.) Petitioner was bound over on both charges. (Id. at 42.)
On July 25, 2008, Christopher Wilson was appointed to represent Petitioner. (Case Register, docket #13 at 2.) Four days later, on July 29, 2008, Petitioner's family retained Al E. Swanson as Petitioner's attorney to replace Mr. Wilson. (Id.) On August 18, 2008, the court held a Cobbs hearing
Petitioner was tried before a jury beginning January 6, 2009 and ending January 8, 2009.
The court also addressed a defense motion to preclude the introduction of evidence of the head injury and a motion to dismiss the unarmed-robbery charge added at the preliminary examination, both of which the court denied. (Id. at 15-22.) In addition, the trial court fully described the Cobbs agreement, which remained on offer to Petitioner on the first day of trial. Under the agreement, Petitioner would be given a minimum sentence of 108 months on the higher, unarmed-robbery charge as a fourth felony offender, for which the maximum was life imprisonment. (Id. at 22-28.) Following a break to consult with his attorney, Petitioner rejected the offer. (Id. at 28.)
Darin Sargent testified that Petitioner is his cousin, who is about the same age (approximately 38), but substantially bigger, taller and heavier than Sargent. (Id. at 145, 154, 163.) On May 13, 2008, Sargent got a call from his friend, Black, to come over to a barbecue and play cards. (Id. at 145, 163.) Carma Cunningham, Petitioner's former girlfriend, lived in the house, and Sargent initially did not feel right about being there, but Cunningham told Sargent that she was no longer involved with Petitioner. (Id. at 145, 164.) Sargent met Cunningham through Petitioner, but, after Petitioner's relationship with her ended, Sargent still remained friends with Cunningham. After eating, Sargent and others were sitting on the porch when Petitioner pulled up across the street. Sargent went over to talk with Petitioner. (Id. at 146-47, 166.) Petitioner said, "[S]o you go over my ex house." (Id. at 147.) Sargent responded that he was at the house, but he had come over at Black's invitation for the barbecue and to relax. (Id.) Petitioner told Sargent that he was not with Cunningham any longer, and Sargent told Petitioner that Petitioner's relationships did not concern Sargent. After the two talked, Petitioner drove away and Sargent went back up on the porch. Cunningham then asked Sargent for a cigarette, but he had only a couple left. He offered to take her to the store so that she could get some cigarettes and he could get some beer. (Id. at 147-49, 166.) Sargent and Cunningham drove to the store, where Sargent got a 22-ounce beer. While Sargent was asking the clerk for some cigarettes, Petitioner came up behind him, saying, "[Y]o cuz, come here, let me holler at you." (Id. at 150.) Sargent asked him to wait a moment while he finished paying for his purchases. Petitioner told him that he needed to talk with him immediately, and pushed him out the door. Sargent assumed that something was going on with his car, as he had left it running outside. (Id.) After Petitioner pushed him out the door, Sargent looked at his car, and his next memory was waking up at the hospital. He did not remember being hit. (Id. at 150-51.) At the time of the incident, Sargent had $180.00 in his pocket and a diamond stud in his ear. (Id. at 150, 169-70, 177.)
Sargent had to hold his jaw when he was talking to hospital personnel, because it was broken and shifted out of alignment. It hurt a great deal. He subsequently had surgery and had his jaw wired shut for eight weeks. (Id. at 152.) During that time, he could not eat solid foods and was in the hospital. (Id. at 161.) At the time of trial, he still could not eat certain foods, his jaw ached in the morning, and, because he had numbness in part of his jaw, spittle sometimes ran down the side of his jaw. He continued to have a steel plate in place, which was positioned from one side of his jaw to the other. (Id. at 152-54.)
Sargent identified himself, Cunningham, Petitioner, and Ken Shepard on a video made inside Hackley Liquor on the date of the incident, showing Petitioner come behind Sargent and push him out the door. (Id. at 155-57.) He then identified himself and Petitioner on a video taken on the outside of the store, which, according to Sargent, showed Petitioner pushing Sargent, hitting him, taking Sargent's money out of his pocket, and then walking away. The video then showed Sargent trying to get up, but Sergeant had no memory of that. The video also showed Cunningham leading him to the car. (Id. at 159-60.) According to the video, Sargent had no opportunity to defend himself. Sargent testified that he did not even know that Petitioner was angry, or he would have tried his best to stay in the store. (Id. at 161.) Sargent acknowledged that he did not initially tell the investigating officers that he had lost $180.00 during the incident. (Id. at 173-74, 179, 186.) He stated that he did not realize the money was gone until after he had been at the hospital for some time. (Id. at 150, 168-70, 174.) Sargent testified that he also lost his diamond earring during the incident. (Id. at 177-78.)
Kenneth Shepard testified that he was a close friend of Petitioner and that he knew Darin Sargent and Carma Cunningham. (Id. at 202.) On the date of the incident, Petitioner was no longer dating Cunningham, but was instead dating Shepard's sister, Keisha. Keisha's house was across the street from Cunningham's house. (Id. at 203.) On May 13, 2008, Petitioner stopped by Shepard's father's house, where Shepard was sitting and drinking a beer. Petitioner talked to Shepard and his father, saying that he was going home to wash his car, and Shepard asked if he could go with him. Petitioner refused at first, but Shepard got into the car anyway, and they left. They washed the car, changed their clothes, and then went driving. As they drove to the Hackley Liquor Store, Petitioner noticed Sargent in the store. Petitioner told Shepard, "I need to holler at him." (Id. at 204.) Shepard had no idea that there was going to be trouble when he and Petitioner went into the store. Petitioner went up to Sargent, saying, "[C]an I holler at you." (Id. at 205.) When Sargent asked Petitioner to wait, Petitioner replied, "[N]o I need to holler at you." (Id.) Petitioner then pushed Sargent out of the store. (Id.) Shepard still did not expect violence as he followed Petitioner and Sargent out of the store. Shepard saw Sargent fall to the ground and saw Petitioner hit Sargent multiple times in the face. Sargent at no time fought back, nor was he able to do so. (Id. at 206-08.) After Petitioner stopped, Sargent looked dazed. (Id. at 207.) After the fight, Shepard saw Petitioner with cigarettes cupped in his hand, but he never saw Petitioner with money. (Id. at 208.) Shepard was scared, shocked and puzzled by the sudden attack. (Id. at 212.) Shepard observed Petitioner patting down Sargent and checking Sargent's waist. He did not see Petitioner reach into Shepard's pockets, nor did he see anything fall to the ground. (Id. at 214-16.) After patting Sargent down, Petitioner stood and said, "[C]ome on." (Id. at 215.) When they got to the car, Shepard asked Petitioner for a cigarette. Petitioner gave him one and then immediately dropped him off. (Id. at 216.)
Former Muskegon Heights Police Officer Chris Stoddard testified that he was called about a reported fight at the Hackley Liquor Store, but when he arrived, no fight was ongoing and none of the six to twelve people standing around would provide him any details. (Id. at 220, 225-26.) One person, John Banks, told Stoddard that he believed that Lonnie Parker had hit Darin Sargent. (Id. at 226-27, 232.) The store cashier told Stoddard that he could not access the videotape and that Stoddard would have to try to get it the next day. (Id. at 226, 232.) Half an hour later, Stoddard was called to Hackley Hospital. He saw Sargent lying in a hospital bed with an extremely swollen face, a misaligned jaw, and blood coming out of his mouth. (Id. at 220-21.) Knowing that Sargent's jaw was broken, Stoddard got a pad of paper for Sargent to use to write his answers to questions. (Id. at 221.) Sargent identified who had hit him. (Id. at 223.) Stoddard also took pictures, which he identified for the jury. (Id. at 221-23.) Later that evening, Sargent told Stoddard that some money had been taken from him. (Id. at 230-31.)
John Walker testified that he arrived at the Hackley Liquor Store just as the fight had ended. (Id. at 234-35.) He saw Carma Cunningham help Sargent get up, and he went over to help her get Sargent to the car. (Id. at 235.) Walker asked Cunningham if she was taking Sargent to the hospital, and she said yes. Sargent's face and mouth were swollen, some bottom teeth were missing, and blood was coming out of his mouth. (Id.) Walker did not see Petitioner that day, and he did not see anyone going through Sargent's pockets or picking up money. (Id. at 236.) Walker spoke with an officer who arrived as Walker was going into the store. Walker had no idea why the officer might have recorded his name as "John Banks." (Id. at 238.)
After the jury had been excused for the day, the court again heard argument on the admissibility of evidence about the good relationship between the victim and Petitioner and about Petitioner's concern about Sargent being around Cunningham, because Sargent was involved in drugs. (Id. at 244-45.) Petitioner's theory of the case was that the injury was a result of anger and Petitioner's a desire to send a message, not an intent to seriously injure, and the assault was not part of a robbery. (Id. at 244-46.) Defense counsel argued that Petitioner needed to be able to explain why he hit Sargent and the nature of their relationship in order to demonstrate that he lacked the intent to commit great bodily harm less than murder. (Id. at 249-50.) The following morning, the court ruled that Petitioner could explain why he hit Sargent only to the extent that he did not believe that it was good for Ms. Cunningham to hang out with Sargent, but he could not say that Sargent was involved with drugs. (Tr. II at 7-8.) In addition, the court denied on the grounds of relevance and the risk of confusion a hand-written motion filed by Petitioner for discovery of the toxicology reports on Sargent. (Id. at 11-12.)
Dr. James Spoto testified as an expert in ear, nose, throat and facial plastic surgery. (Id. at 17.) Spoto was called by a Hackley Hospital emergency physician on May 13, 2008, regarding a young man with an obvious jaw fracture. (Id.) Spoto went to the hospital and observed an open jaw fracture, where the mucous membrane was broken and the bone stuck out. The fracture was at about the midline, through the mandible, and the jaw was mal-rotated due to the pull of muscles. He ordered a CAT scan to discover other fractures that were not immediately apparent, and he found a total of two: one in the upper part of the jaw and one in the neck area of the jaw. (Id. at 18-19). Spoto determined that early surgery was needed to put a permanent titanium plate over the main fracture. He also attempted to put a plate over the upper fracture, but he could not do so because the fracture was too high and put the facial nerve at too much risk. So they wired Sargent's jaw shut to let the upper fracture heal. (Id. at 21.) According to Spoto, it takes about 2000 pounds of pressure to fracture a jaw, which is considerable force, but it can easily be delivered by a single blow from a fist. (Id. at 24-26.) He acknowledged, however, that most blows with a fist do not break the jaw. (Id.)
Carma Cunningham testified that she had previously been in a relationship with Petitioner for five years, but the relationship was over by May 13, 2008. (Id. at 28, 38.) She denied ever having a romantic relationship with Sargent. On the day of the incident, she had been at a friend's house (Asmonte Black's house), and Sargent gave her a ride to the store. (Id. at 28-29, 34.) She went to the cooler and then walked back up to the counter, where Sargent already was standing. She saw Petitioner and Sargent briefly, but by the time she reached the counter, they were leaving the store. (Id. at 29.) She did not see what happened outside the store. When she left the store, she saw Sargent on the ground, trying to get up. She did not see Petitioner. She had been drinking, and she did not know what was going on. (Id. at 30.) Cunningham saw that Sargent was bleeding, and she focused on trying to help him to get to the hospital. Others helped her get Sargent to the car, and she asked some people to search Sargent's pockets to find his keys. (Id. at 31, 35-36.) She drove him to Hackley Emergency, but she stayed only until she was sure he would be seen. (Id. at 32.) Cunningham testified that the situation was confusing, and a couple of people were searching Sargent's pockets. She assumed that Sargent had money, as did she, but she did not know what happened to any money, including her own. (Id. at 36-37.)
Muskegon Heights Detective Stephen Clark testified that he was assigned to take over the investigation of the case. (Id. at 39-40.) He met with Kevin at the liquor store to retrieve videotapes taken from two different camera angles. (Id. at 40.) After giving Petitioner his Miranda warnings, Clark interviewed Petitioner. Petitioner acknowledged being Sargent's cousin, but he initially denied any knowledge of the incident. (Id. at 42-43.) Petitioner, however, acknowledged seeing Sargent at the Hackley Liquor Store. Petitioner then asked to see the police report before answering any questions about the fight, but Clark denied the request. (Id. at 43-44.) Petitioner refused to describe anything that happened and eventually told Clark that he wanted a lawyer. (Id. at 44-45.) When he was later recalled to the stand, Clark indicated that Petitioner's witnesses, Marie Parker and Michael Mosley, never called him to report their conversations with Sargent. (Id. at 111.)
Because of problems with certain prosecution witnesses, the defense began its case before the prosecution rested. Petitioner testified that Sargent was his cousin, they had worked together at the Veterans of Foreign War nightclub, and they socialized together periodically. (Id. at 58.) About 30 days before the incident, Petitioner had participated in some telephone calls with Sargent about Ms. Cunningham. (Id. at 59.) In addition, about 15 to 20 minutes before the fight, Petitioner had spoken with Sargent on Wood Street. (Id. at 60-61.) Sargent had stopped taking Petitioner's calls, and Petitioner was concerned about a couple of incidents in which Sargent was involved. (Id. at 61.) Sargent became offended. (Id. at 62.) Petitioner tried to explain the content of the conversation, but he was not allowed to do so. (Id.) Petitioner then explained that he had become angry, too, because he was concerned that Sargent was a bad influence on Cunningham's five children, whom Petitioner considered his step-children. (Id.) He wanted Sargent to stay away from the house, and Sargent refused. (Id. at 63.) Sargent threatened Petitioner. (Id.) According to Petitioner, Sargent told him that he was going to "have to eat bullets." (Id. at 67.)
Petitioner then headed downtown, stopping at a friend's house briefly and eventually ending up at his girlfriend's house. Shortly thereafter, he went to the Hackley Liquor Store to get a beer. (Id. at 63-64.) After he parked the car, he saw Sargent's car and caught a glimpse of Sargent entering the store. (Id. at 64.) Petitioner went into the store and walked up to Sargent at the counter. Petitioner confronted Sargent about his threat to shoot Petitioner, and Sargent laughed it off. He then asked Sargent to step outside, because he wanted to yell at him. (Id. at 65-66.) Sargent said, "[W]hat you want to talk about, the same shit . . .[?]" (Id. at 66.) Sargent was reluctant, so Petitioner pushed him out of the store. (Id.) Petitioner testified that he believed that Asmonte Black had given Sargent a gun after he overheard Sargent threaten Petitioner on Wood Street. (Id. at 67.) Petitioner asked Sargent, "[W]hat's up with this gun thing, you gonna shoot me?" (Id.) Sargent started laughing at Petitioner, and Petitioner punched him. When Sargent fell down after the first punch, Petitioner punched him again a couple of times. When Sargent's eyes started to close, Petitioner stepped back. He then patted Petitioner's pockets, finding only a long set of keys and a cell phone, but no gun. Petitioner walked away. (Id. at 67.) Petitioner terstified that he may have actually put his hand in Sargent's right pocket, but it was only to make sure what he was feeling was not a gun. (Id. at 68.)
Petitioner testified that he was angry with Sargent at the time of the incident and that it was not the first time the two of them had fought. (Id.) His intention when he hit Sargent was to "Kick his butt." (Id. at 69.) He never intended to seriously injure Sargent, and when he learned of the injury, he was "upset and worried and bothered." (Id.) Petitioner tried to call Sargent as soon as he learned that Sargent's jaw was broken, but Sargent did not answer him until the following Saturday. Petitioner told Sargent that he was sorry that he had broken Sargent's jaw, and he offered to pay for any medical treatment. Sargent told him not to worry about it. (Id. at 70.)
Marie Parker testified that Petitioner was her younger brother. (Id. at 86-87.) Mrs. Parker testified that she also knew Sargent, who was her cousin. (Id. at 87.) She learned of the incident late Thursday night, and she drove from Detroit to Muskegon on Friday morning. (Id. at 88, 90.) She went to see Sargent, who complained that he was missing an earring. Sargent did not mention having lost money. (Id. at 88-89) According to Mrs. Parker, Petitioner and Sargent had had problems in the past, but they got along fine. In fact, when she spoke to Sargent, he said, "I thought we were better than that." (Id. at 88.)
Michael Mosley testified that he was the cousin of both Petitioner and Sargent. (Id. at 93.) Mosley talked with Sargent after the incident. Sargent complained that he had lost his earring, but he did not mention money. (Id. at 94.)
Dr. Marc Ydenberg testified that he was the emergency-room physician who treated Sargent. (Id. at 102-03.) He also was shown the videotape from the party store. (Id. at 104.) Based on his experience as an emergency room physician, Sargent suffered a significant concussion as the result of the blows to his head. (Id. at 106-07.) According to Ydenberg, if a person wished to cause serious injury to another in a fight, he would aim his blows at the head. (Id. at 107.)
At the conclusion of trial, on January 8, 2009, the jury found Petitioner guilty of assault with intent to commit great bodily harm less than murder and unarmed robbery. (Tr. III at 3, docket #21.) On April 12, 2009, Petitioner was sentenced, as a fourth felony offender, to a prison term of 15 to 25 years on the unarmed-robbery conviction and 9 to 25 years on the assault conviction, with jail credit of 245 days. The court also imposed restitution in the amount of $201,833.06, together with statutory costs. (Sentencing Transcript, (S. Tr.) at 36-37, docket #18.)
On July 29, 2009, court-appointed appellate counsel filed a motion for new trial raising a series of issues: (1) trial counsel was ineffective in failing to investigate and subpoena various witnesses who could have testified that Darin Sargent had money in his pocket after the beating, which would have undermined Petitioner's conviction for unarmed robbery; (2) prosecutorial misconduct in pressuring Cunningham to testify that there was no money in Sargent's pocket after she helped him, based on an affidavit from Cunningham. At oral argument on the motion held August 31, 2009, counsel requested an evidentiary hearing on both matters. (See 8/31/09 Mot. for New Trial Tr., docket #22.) Following oral argument, the trial court denied the motion for new trial on both grounds. (Id. at 14-18.)
Petitioner appealed as of right to the Michigan Court of Appeals. His brief, which was filed by counsel on September 30, 2009, raised seven issues. (See Def.-Appellant's Br. on Appeal, docket #23.) Petitioner filed a pro per supplemental brief on October 21, 2009, in which he raised fourteen additional and overlapping issues. In a lengthy, unpublished opinion issued on September 21, 2010, the Michigan Court of Appeals rejected all appellate arguments and affirmed Petitioner's convictions and sentences. (See 9/21/10 Mich. Ct. App. Opinion (MCOA Op.), docket #23.)
Petitioner filed a pro per application for leave to appeal to the Michigan Supreme Court. Petitioner raised twenty grounds for relief, including all but one (ground seven in his supplemental brief) of the claims raised before and rejected by the Michigan Court of Appeals. Petitioner was granted leave to amend his application, in which he further developed his first issue. By order entered May 24, 2011, the Michigan Supreme Court denied his application for leave to appeal because it was not persuaded that the questions presented should be reviewed. (See Mich. Ord., docket #24.)
This action is governed by the Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). The Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). The inquiry is "limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time [the petitioner's] conviction became final." Onifer v. Tyszkiewicz, 255 F.3d 313, 318 (6th Cir. 2001); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth by the Supreme Court, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-406). The court may grant relief under the "unreasonable application" clause "if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Id. A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Id. at 410. "[R]elief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1706-07 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784 (2011)).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing standards under the AEDPA, I find that Petitioner is not entitled to relief.
In his first ground for habeas relief, Petitioner contends that the prosecutor added the unarmed robbery charge at the end of the preliminary examination, without notice, preventing Petitioner from contesting the charge at the preliminary examination. He asserts that the late amendment violated state law and deprived him of due process.
To the extent that Petitioner challenges the propriety of the amendment under state law, his claim is not cognizable on habeas review. "[A] federal court may issue the writ to a state prisoner `only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must "state facts that point to a `real possibility of constitutional error.'" Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS CASES). The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson, 131 S. Ct. at 14; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). As a consequence, Petitioner's objections under state procedural rules are not properly before this Court.
Moreover, Plaintiff's federal claim is without merit. The Supreme Court has determined that, while an arrestee is entitled to a proceeding to establish probable cause for his arrest or detention, his conviction cannot be vacated on habeas review on the ground of his preliminary proceeding was defective. See Gerstein v. Pugh, 420 U.S. 103, 119 (1975); see also Sanders v. Detroit Police Dep't, 490 F. App'x 771, 773-74 (6th Cir 2012). Instead, prior to trial, a state criminal defendant has a due process right to be informed of the nature of the accusations against him. See Lucas v. O'Dea, 179 F.3d 412, 417 (6th Cir. 1999). Notice and opportunity to defend against criminal charges as guaranteed by the Sixth Amendment to the United States Constitution are an integral part of the due process protected by the Fourteenth Amendment and therefore apply to state prosecutions. See Cole v. Arkansas, 333 U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257, 273 (1948). "The due process clause of the Fourteenth Amendment mandates that whatever charging method the state employs must give the criminal defendant fair notice of the charges against him to permit adequate preparation of his defense." Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988).
Here, Petitioner does not contest that he had ample notice and opportunity to defend against the criminal charges. Petitioner received notice of the additional charge at the end of the preliminary examination on July 2, 2008. His trial did not start until six months later, on January 6, 2009. Because he had notice and an opportunity to defend the unarmed-robbery charge, he suffered no constitutional deprivation.
In his second ground for habeas relief, Petitioner contends that he was denied his Sixth Amendment right to represent himself. As discussed earlier in this opinion, Petitioner was represented by retained counsel prior to his preliminary examination. He then rejected his attorney and represented himself at the preliminary examination on July 2, 2008. Petitioner subsequently was appointed a public defender on July 25, 2008, but he engaged a retained attorney four days later, on July 29, 2008. This retained attorney moved to withdraw on September 30, 2008, because of a breakdown in the attorney-client relationship. Petitioner supported the motion, and it was granted and the attorney was allowed to withdraw on October 2, 2008, two weeks prior to the scheduled trial. Petitioner expressed his desire to postpone trial in order to engage Steven Corwin. Corwin was retained on October 20, 2008. Consistent with his prior pattern, less than two months after hiring Corwin as his fourth attorney, Petitioner wrote a letter to the trial court in December 2008, discussing a conflict that he was having with his attorney about trial strategy, preparation, and the filing of certain motions. Shortly thereafter, on December 16, 2008, counsel moved to withdraw because of a breakdown in the attorney-client relationship.
On December 22, 2008, two weeks before the rescheduled trial date, the court held a hearing on counsel's motion to withdraw and Petitioner's request to discharge his fourth attorney. (12/22/08 Hr'g on Mot. to Withdraw, docket #16.) Petitioner was placed under oath, and the court engaged in a lengthy colloquy:
(Id. at 5-13 (emphasis added).)
The Sixth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides that a criminal defendant shall have the right to the assistance of counsel in his defense. See U.S. Const. amend. VI; see also Faretta v. California, 422 U.S. 806, 832-34 (1975); Martinez v. Ct. of Appeal of Cal., 528 U.S. 152, 154 (2000). This right necessarily implies its corollary, that a defendant has a right to proceed without counsel and represent himself. Faretta, 422 U.S. at 832-34; see also United States v. Mosely, 810 F.2d 93, 97 (6th Cir. 1987) ("`The right to defend pro se and the right to counsel have been aptly described as "two faces of the same coin," in that waiver of one right constitutes a correlative assertion of the other.'") (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970)). "[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Faretta, 422 U.S. at 817.
Given the importance of the right to counsel, however, a defendant's request for selfrepresentation must be unequivocal and his waiver of his right to counsel and the decision to proceed pro se must be knowing, voluntary and intelligent. See Faretta, 422 U.S. at 834-35; Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). For any such waiver to be effective, the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)); see also Iowa v. Tovar, 541 U.S. 77, 88-89 (2004). Whether a defendant's choice was made with "eyes open" generally "depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Zerbst, 304 U.S. at 464-65. The Supreme Court has "not prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel," Iowa v. Tovar, 541 U.S. 77, 88 (2004), and there is "no sacrosanct litany for warning defendants against waiving the right to counsel."
However, the Supreme Court has recognized that the right to self-representation "`is not absolute.'" Indiana v. Edwards, 554 U.S. 164, 171 (2008) (holding that in the context of prior issues of mental competency may permit a state to limit the right of self-representation) (quoting Martinez, 528 U.S. at 162). As the Faretta Court itself observed, "[t]he right of self-representation is not a license to abuse the dignity of the courtroom." 422 U.S. at 834 n.46 (internal quotation omitted). "[T]he government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer. Martinez, 528 U.S. at 162 (holding that the right of self-representation does not apply on direct appeal in a criminal case). For example, courts may require that a defendant make his request to represent himself in a timely fashion. Id. In addition, a court may appoint standby counsel even without the express consent of the defendant. Id. Nevertheless, a court is not required to appoint standby counsel or permit "hybrid" representation. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Further, the trial judge need not provide personal instruction on procedure or otherwise assist the defendant. Id. (citing McKaskle, 465 U.S. at 183-84). Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. Faretta, 422 U.S. at 834 n.46 (citing Illinois v. Allen, 397 U.S. 337, 342 (1970) (holding that a defendant's right to confront witnesses may be overcome by the defendant's engagement in disruptive conduct)).
Finally, "[s]ince the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to "harmless error" analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle, 465 U.S. at 177 n.8; see also Washington v. Renico, 455 F.3d 722, 734 (6th Cir. 2006) (holding that "denial of the Faretta right is a structural error for which [defendant] need not show any prejudice") (citing McKaskle, 465 U.S. at 177 n.8).
The Michigan Court of Appeals carefully analyzed the case under People v. Williams, 683 N.W.2d 597, 602 (Mich. 2004):
(MCOA Op. at 3.) Although the court of appeals' decision relied solely on Michigan cases, the cited cases relied upon the United States Supreme Court's decisions in Faretta, 422 U.S. at 835, and Tovar, 541 U.S. at 88.
The state appellate court properly determined that Petitioner's invocation of his right to represent himself was not unequivocal. At the hearing, Petitioner never squarely stated that he wanted to represent himself. In fact, he indicated that he would prefer to have an attorney represent him, if he could get his motions heard. Such language bars a conclusion that Petitioner's invocation was unequivocal.
Petitioner argues, however, that the transcript does not fully capture his invocation of his right. He contends that the "indistinguishable" reference in the hearing transcript was really his unqualified response of "Yes," to the judge's question about whether Petitioner wanted him to grant counsel's motion to withdraw. (12/22/08 Hr'g on Mot. to Withdraw, docket #16 at 5.) Petitioner's argument lacks credibility. The words immediately following the "indistinguishable" notation are "few variables." The word "Yes" makes no sense as the immediate predecessor to the words "few variables." Moreover, Petitioner's mere recitation of the word "Yes" would be insufficient to make his invocation of the right unequivocal. The word precedes Petitioner's lengthy explanation of his concerns and his subsequent clear statement that he would prefer to be represented by a lawyer:
(12/22/08 Hr'g on Mot. to Withdraw, docket #16 at 8.) The testimony is inherently contradictory, making any invocation of the right to represent himself equivocal.
Petitioner next argues that his statement that he preferred to be represented by counsel was merely an expression of his desire in an ideal world, and that he meant to invoke his right to represent himself. Essentially, Petitioner disputes the Michigan Court of Appeals' interpretation of his statements. As previously discussed, a state court's factual determination is entitled to a presumption of correctness, which may be overcome only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429; Bailey, 271 F.3d at 656; Sumner, 449 U.S. at 546 (applying presumption to findings of appellate courts). Plaintiff's interpretive suggestions fall far short of being clear or convincing.
In sum, both the trial court and the court of appeals reasonably determined that Petitioner had not unequivocally invoked his right to represent himself. Petitioner therefore fails to demonstrate a Sixth Amendment violation.
In Grounds III, IX, X, XI, XII, and XV of his habeas application, Petitioner contends that his trial attorney rendered ineffective assistance in a variety of circumstances.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Premo v. Moore, 131 S.Ct. 733, 740 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficult of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .") (citing Richter, 131 S. Ct. at 786).
In Ground III, Plaintiff alleges that he provided counsel with a list of witnesses and their contact information, but counsel first lost the information and then, after receiving another copy of the list, failed to interview the witnesses until the day of trial. Plaintiff also complains that, had counsel interviewed Ms. Parker, he would have discovered that she had both called and visited the police station. Plaintiff contends that Ms. Parker could have given testimony to contradict the prosecutor's suggestion during closing argument that she had recently fabricated her testimony because she had never called and told the police about her conversation with the victim, in which he never claimed to have lost money.
While citing Michigan cases, the court of appeals applied the Strickland standard to Plaintiff's claims regarding the failure to investigate or present evidence:
(MCOA Op. at 9-10.)
The court of appeals' determination was patently reasonable. Defense counsel called two witnesses, Marie Parker and Michael Mosley, both of whom cast doubt on the victim's claim of missing money. The trial court twice advised defense counsel that it would not permit five witnesses about conflicting prior statements made by the victim, citing MICH. R. EVID. 613, which limits the admission of extrinsic evidence to show prior inconsistent statements of a witness. (Tr. I at 27, Tr. II at 6.) In these circumstances, it is apparent that counsel's decision to call the witnesses he did was the result of trial strategy. Petitioner identifies no facts supporting his claim that the witnesses, who were relatives and friends of Petitioner, would have provided superior evidence to those called by defense counsel. He therefore wholly fails to overcome the strong presumption that counsel's strategy was sound and that his performance was competent. See Strickland, 466 U.S. at 688-89.
Moreover, Petitioner cannot demonstrate the requisite prejudice. Petitioner does not identify which witnesses defense counsel failed to call or what those witnesses would have said. Indeed, at the hearing on the motion for new trial, appellate counsel acknowledged that none of the listed witnesses — all of whom she had written and some of whom she also attempted to call — had contacted her or provided her with any information. (See Mot. for New Trial Hr'g Tr., docket #22 at 5-6.) In the absence of information about the testimony counsel failed to produce, Petitioner cannot demonstrate that the testimony would have had an effect on the judgment. Strickland, 466 U.S. at 689.
Finally, Petitioner's argument concerning the failure to interview Ms. Parker is equally unsupported. Petitioner argues that counsel should have known that the prosecutor would make a closing argument challenging Ms. Parker's failure to advise the police earlier about her conversations with the victim, and he should have been prepared to ask Parker if she had spoken with the police. Petitioner states that Ms. Parker called the police and went to the police station with the victim and spoke with an officer. Yet he fails even to allege, much less show, that Ms. Parker told the police that the victim had not mentioned the theft when she spoke with him. In fact, Petitioner makes no representations, even by way of argument, about what Ms. Parker told the police.
In the absence of factual support, Petitioner cannot demonstrate that Ms. Parker, if asked by defense counsel, could have testified that she told the police about her conversation with the victim. As a consequence, he fails to demonstrate either that counsel performance was deficient or that Petitioner was prejudiced.
In sum, Petitioner cannot demonstrate either prong of the deferential Strickland standard, much less overcome the double deference accorded the state-court's disposition of his claim.
Also in Ground III, Petitioner complains that defense counsel was ineffective in explaining the sentencing guidelines. Prior to trial, Petitioner was offered a Cobbs agreement, with a minimum sentence of not more than 108 months. At that time, the sentencing guidelines range for the minimum sentence was estimated to be 43 months to 172 months. Following trial, with a higher than estimated scoring of two variables (Offense Variable (OV) 3 and OV 8), Petitioner's guidelines range increased to 50 to 200 months. Petitioner actually was sentenced to a minimum of 180 months. Petitioner contends that he did not understand that the guidelines range could change. Petitioner asserts that, had he known, he "may well have accepted the plea deal offered . . . ." (Br. in Supp. of Pet., docket #2, Page ID#56.)
The state court rejected Petitioner's claim:
(MCOA Op. at 11.) The court's determination was patently reasonable. The trial court expressly advised Petitioner that the sentencing guidelines range was an estimated one. The court gave Petitioner time to speak with counsel about the plea. In addition, the trial court, while acknowledging that Petitioner was an experienced defendant, asked if Petitioner fully understood the guidelines, and Petitioner agreed he did. As a consequence, the state court's determination that Petitioner had failed to prove the performance prong of Strickland, especially in light of the double deference owed on habeas review, constituted a reasonable application of Supreme Court precedent.
Moreover, Petitioner fails to demonstrate the requisite prejudice under Strickland. In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court held that, in a claim alleging that counsel was ineffective in advising a defendant about a plea offer, the Strickland standard continues to apply. In the context of a guilty plea, the prejudice prong of Strickland depends on whether, absent counsel's errors, the result of the plea process would have been different. See Lafler, 132 S. Ct. at 1385-87; Hill v. Lockhart, 474 U.S. 52, 58 (1985). In such circumstances, "defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012). The Lafler Court thoroughly rejected the argument that a subsequent fair trial renders counsel's earlier ineffective assistance irrelevant. 132 S. Ct. at 1387.
Petitioner fails to show that, absent a difference in counsel's performance, the result would have been different. He does not claim that, had he known that the guidelines range could be increased, he would have pleaded guilty. Instead, he merely states that he might have accepted the plea agreement and pleaded guilty. Such a representation falls far short of establishing a reasonable probability that the result of the plea process would have been different. Petitioner therefore fails to overcome the presumption that counsel's performance did not deprive Petitioner of a fair trial.
Petitioner asserts that trial counsel was ineffective in failing to object to the victim's testimony that unidentified others told him that Petitioner had robbed him. Petitioner contends that counsel's failure to object to the testimony violated his rights under the Confrontation Clause.
The Michigan Court of Appeals gave short shrift to Petitioner's claim:
(MCOA Op. at 10.)
The court of appeals' decision was patently reasonable. Although defense counsel certainly could have objected to Sargent's statement, he instead elected to challenge Sargent's credibility by emphasizing the many inconsistencies in Sargent's testimony, Sargent's belated claim to have lost money, his obvious lack of knowledge about Petitioner's conduct, and his equivocation about the reasons for Petitioner's conduct. As the court of appeals held, counsel's decision clearly was strategic. Petitioner falls far short of overcoming the double deference owed to the state court's resolution of this claim.
In Ground X, Petitioner contends that trial counsel was ineffective in failing to file all of the pro per motions Petitioner wanted filed, despite having been permitted to file them by the trial court. The only motion he discusses in Ground X, however, is his motion seeking discovery of the victim's toxicology report. In Ground XI, Petitioner asserts that counsel was ineffective in failing to investigate certain prosecution witnesses about their pending criminal charges and subsequently failing to impeach them with the information. In Ground XII, Petitioner argues that defense counsel failed to impeach the victim's testimony that he had only watched Cunningham's children a couple of times with information that the victim had been paid by the state to watch Cunningham's children for two years. In Ground XV, Petitioner claims that defense counsel rendered ineffective assistance because he had a conflict of interest and bias in favor of the prosecution and the judge because of past employment and personal relationships.
The Michigan Court of Appeals summarily rejected the four claims because Petitioner had failed to develop a factual record to support his claims:
(MCOA Op. at 11-12.)
When a state-law default prevents further state consideration of a federal issue, the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). To determine whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state court enforced the rule so as to bar the claim; and (3) the state procedural default is an "independent and adequate" state ground properly foreclosing federal habeas review of the federal constitutional claim. See Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004); accord Lancaster, 324 F.3d at 436-37; Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). In determining whether a state procedural rule was applied to bar a claim, a reviewing court looks to the last reasoned state-court decision disposing of the claim. See Ylst, 501 U.S. at 803; Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
Here, the court of appeals unquestionably rejected Petitioner's claims because he had failed to follow a state-court procedure rule that required him to develop the factual record to support his claims of ineffective assistance of counsel. The court's determination that Petitioner failed to follow an adequate and independent state procedural rule unquestionably was proper. Appellate counsel moved for a new trial on a variety of grounds, including some claims of ineffective assistance of counsel. She sought an evidentiary hearing on those grounds. Petitioner, however, never sought an evidentiary hearing on his supplemental claims, either from the trial court or the court of appeals. Because Petitioner's claims do not depend on facts available in the trial record, no question exists that Petitioner failed to develop the facts sufficient to support his supplemental claims of ineffective assistance. He therefore failed to follow the state procedural rule relied upon by the state court.
Further, no question exists that the state procedural rule applied by the court of appeals was adequate and independent. A state law procedural rule is adequate and independent when it was "firmly established and regularly followed" at the time of the asserted procedural default. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). The Michigan Supreme Court long has held that
People v. Hoag, 594 N.W.2d 57, 59 (Mich. 1999) (quoting People v. Ginther, 212 N.W.2d 922, 925 (1973)). Moreover, although there may be an "exceptional case in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question," see Lee v. Kemna, 534 U.S. 362, 376 (2002), this case does not fall within that "limited category." Id.
Petitioner therefore unquestionably has defaulted his supplemental claims of ineffective assistance of counsel because he did not develop the necessary factual record to support the claims. If a petitioner procedurally defaulted his federal claim in state court, the petitioner must demonstrate either (1) cause for his failure to comply with the state procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, or (2) that a lack of federal habeas review of the claim will result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Murray v. Carrier, 477 U.S. 478, 495 (1986); Hicks, 377 F.3d at 551-52. The miscarriage-of-justice exception only can be met in an "extraordinary" case where a prisoner asserts a claim of actual innocence based upon new reliable evidence. House, 547 U.S. at 536. A habeas petitioner asserting a claim of actual innocence must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner has not even attempted to demonstrate cause excusing his default. Although the ineffective assistance of appellate counsel may serve as cause excusing a failure to raise a claim of ineffective assistance of trial counsel, that claim itself must be properly exhausted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Buell, 274 F.3d at 349; Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001). Petitioner has never attempted to raise a claim of ineffective assistance of appellate counsel. Appellate counsel's performance therefore cannot be relied upon to excuse his procedural default. Where a petitioner fails to show cause, the court need not consider whether he has established prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir. 1985).
Petitioner also has not attempted to demonstrate his actual innocence within the meaning of Schlup, 513 U.S. at 327. Although Petitioner continues to dispute his intent in striking the victim, he does not present any new evidence, much less evidence making it more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt. Id.
As a result, Petitioner's four supplemental claims of ineffective assistance of counsel set forth in Grounds X, XI, XII, and XV are procedurally barred.
In his fourth ground for habeas relief, Petitioner argues that the trial court improperly precluded him from cross-examining Sargent about Sargent's involvement with drugs, thereby depriving Petitioner of his constitutional right under the Confrontation Clause to fully present a defense and establish Sargent's bias. Petitioner contends that Sargent was under the influence of drugs at the time of the assault, which may have prevented him from remembering events as they actually occurred. He also contends that the evidence was necessary to show Petitioner's motive in striking Sargent.
On direct appeal, Petitioner contended that the trial court's decision to exclude the mention of drugs violated the Michigan Rules of Evidence and the Confrontation Clause. The Michigan Court of Appeals addressed the federal issue as follows:
(MCOA Op. at 4-5.
To the extent Petitioner claims that the trial court's decision violated Michigan law or the Michigan Rules of Evidence, such claims are not cognizable for purposes of federal habeas corpus review. The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly excluded under state law "is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Id. at 67-68. Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman, 268 F.3d at 439; Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552.
As to his constitutional challenge, "[w]hether 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." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation marks omitted). The Sixth Circuit recently explained:
Gagne v. Booker, 596 F.3d 335, 340-41 (6th Cir. 2010). A proper inquiry into the constitutionality of a trial court's decision to exclude evidence begins with considering the relevance and cumulative nature of the excluded evidence, and the extent to which it was "central" or "indispensable" to the defense. Id. at 341. Against this, courts must balance the state's interests in enforcing the evidentiary rule on which the exclusion was based. Id.
Petitioner contends that he should have been permitted to fully explore the reasons for his altercation with Sargent: that he was concerned about Sargent being around Cunninghams' children because of Sargent's involvement in drugs. The court of appeals reasonably concluded that the trial court had properly attempted to avoid a mini-trial on whether Sargent was involved in drugs and the extent to which he was involved. Sargent's use of drugs was merely the reason for Petitioner's concern about Sargent's association with Cunningham. Although Petitioner was prohibited from talking about Sargent's use or sales of drugs, Sargent was thoroughly questioned about whether Petitioner might have been concerned that Sargent was involved with Petitioner's former girlfriend. Petitioner therefore was not entirely precluded from presenting a reason for his assault on Sargent. In fact, after equivocation, Sargent acknowledged that Petitioner probably was concerned about his relationship to Cunningham, and Sargent admitted that he had made a prior statement to that effect. (Tr. I at 184-85.) In addition, Petitioner himself testified that he was concerned that Sargent was a bad influence on Cunningham's five children, whom Petitioner considered to be his own. (Tr. II at 62-63.) Further, as the both the trial and appellate courts recognized, the reason for Petitioner's conduct was not central to his guilt on the offense; Petitioner's reasons could not serve to excuse his violent assault. Under these circumstances, the state courts' limitation on cross-examination constituted a reasonable application of Supreme Court precedent.
Petitioner complains that the prosecutor engaged in a variety of misconduct, in violation of Petitioner's right to due process. In Ground V of his habeas application, Petitioner contends that the prosecutor denigrated the defense during his closing argument, by stating that the defense was trying to trick the jury. In Ground VII, Petitioner argues that, based on a post-trial affidavit, the prosecutor committed misconduct by pressuring a witness to testify in support of the government's case. In addition, in Ground VIII, Petitioner asserts that the prosecutor violated his rights by repeatedly telling the jury that Petitioner could have told the police his story earlier, but he did not do so.
In order for a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the petitioner must demonstrate that the prosecutor's improper conduct "`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)). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the prosecutor's misconduct, a court must consider the extent to which the claimed misconduct tended to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). The court also must consider the strength of the overall proof establishing guilt, whether the conduct was objected to by counsel and whether a curative instruction was given by the court. See id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United States, 295 U.S. 78, 84-85 (1935).
Petitioner complains that the prosecutor repeatedly denigrated the defense during rebuttal argument by suggesting that defense counsel had engaged in "old defense attorney tricks" and had attempted to "flim flam" the jury by suggesting that they should believe that Petitioner had not intended the greater offense because he admitted that he had engaged in a lesser offense. (Tr. II at 143, 145-46.) The Michigan Court of Appeals addressed Petitioner's first claim of prosecutorial misconduct as follows:
(MCOA Op. at 5.)
The state-court's determination was an entirely reasonable application of established Supreme Court precedent. A prosecutor is free to argue from the evidence that certain defense witnesses are lying, but may not denigrate the defense or defense counsel. See Hanna v. Price, 245 F. App'x 538, 545-46 (6th Cir. 2007); Bates v. Bell, 457 F.3d 501, 525 (6th Cir. 2006). Not every aspersion cast by a prosecutor upon a defense attorney's presentation of a case requires reversal of the guilty verdict. See United States v. Young, 470 U.S. 1, 11 (1985) (stating that "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial"). "A prosecutor commenting that the defense is attempting to trick the jury is a permissible means of arguing so long as those comments are not overly excessive or do not impair the search for the truth." United States v. August, 984 F.2d 705, 715 (6th Cir. 1992); see also Brown v. McKee, 231 F. App'x 469, 480 (6th Cir. 2007) (a prosecutor's isolated comments in closing argument that the defense was attempting to trick the jury is not an improper disparagement of defense counsel).
Here, while using the words "tricks" and "flim flam," the prosecutor proceeded to analyze the evidence to explain why jurors should not accept the defense argument that Petitioner only intended to commit a lesser offense. (Tr. II at 143, 145-46.). In such circumstances, the arguments were not improper. August, 984 F.2d at 715.
Moreover, even had the prosecutor's comments been improper, they were not flagrant enough to justify habeas relief. See Henley v. Cason, 154 F. App'x 445, 447 (6th Cir. 2005). The prosecutor's comments were not so incendiary so as to inflame the jury's passion or distract them from determining petitioner's guilt or innocence. See Davis v. Burt, 100 F. App'x 340, 348 (6th Cir. 2004). When combined with the instruction from the trial judge that the attorney's arguments, questions, and statements were not evidence, the prosecutor's comments did not render the entire trial fundamentally unfair. Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000).
In Ground VII, Petitioner argues that the prosecutor impermissibly coerced Carma Cunningham into giving testimony that was favorable to the government. "The Supreme Court has long recognized that due process is denied where `[the] state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.'" Brooks v. Tennessee, 626 F.3d 878, 894 (6th Cir. 2010) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). Deliberate deception is "incompatible with `rudimentary demands of justice.'" Giglio v. United States, 405 U.S. 150, 153 (1972). Government misconduct that amounts to substantial interference with a witness's free and unhampered determination to testify may be deemed a violation of due process. United States v. Foster, 128 F.3d 949, 953 (6th Cir. 1997). Such misconduct amounting to witness intimidation will not justify a new trial, however, unless the defendant demonstrates that it was not harmless. Id.; United States v. Stuart, 507 F.3d 391, 398 (6th Cir. 2007); United States v. Roach, 502 F.2d 425, 437 (6th Cir. 2007).
The court of appeals rejected Petitioner's claim on appeal:
(MCOA Op. at 12-13.)
The court of appeals properly applied the Supreme Court's standard for reviewing prosecutorial misconduct. The court held that, assuming Cunningham's testimony to be true, the evidence harmless. As previously discussed, that determination is entitled to deference. Given Cunningham's long-term relationship to Petitioner, Cunningham's testimony in support of Petitioner likely would have been viewed with skepticism. In light of the videotape evidence that captured Petitioner's search of Sargent's pockets and the evidence from other witnesses, the state court did not act unreasonably in concluding that Cunningham's proposed testimony was harmless.
In addition, the trial court, in denying the motion for new trial, thoroughly explored the facts both at trial and in the Cunningham's affidavit, and it expressly found that the affidavit was not credible in the context of the factual record:
(Mot. for New Trial Tr. at 7-10, 14, 16-18.)
The trial court's analysis of Cunningham's affidavit was both thoughtful and entirely rational. The Court determined that an evidentiary hearing was not required because the affidavit was inconsistent with, not only Cunningham's testimony at trial, but also the entire context of her examination at trial. As the trial court recognized, recantation by a victim who testified at trial is universally viewed with suspicion by reviewing courts. See Dobbert v. Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dissenting from denial of certiorari) ("Recantation testimony is properly viewed with great suspicion."); McCray v. Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007) (recognizing that even sworn affidavits recanting trial testimony are viewed with "extreme suspicion"); Matthews v. Ishee, 486 F.3d 883, 895-96 (6th Cir. 2007) (same). Moreover, Cunningham's allegations about the prosecutor lacked all credibility in light of the prosecutor's failure even to ask for the testimony he ostensibly intimidated Cunningham into giving.
In sum, the state courts reasonably concluded both that Cunningham's affidavit was wholly insufficient to demonstrate either that the prosecutor had engaged in misconduct and or that Petitioner was prejudiced in any way.
Petitioner contends that the prosecutor violated his right to due process by questioning and commenting about Petitioner's failure to tell his story to the police. During cross-examination of Petitioner, the prosecutor asked Petitioner why he had not told the investigating detective about Sargent's gun and about Sargent's earlier threats. (Tr. II at 80-81.) Similarly, the prosecutor induced Detective Clark's testimony that, after being given Miranda warnings and initially denying knowing why he was being questioned, Petitioner answered a number of questions before asking to see the police report prior to answering more. (Tr. II at 42-44.) In closing argument, the prosecutor emphasized that Petitioner had not provided his version of the incident. (Id. at 125.)
The court of appeals rejected Petitioner's claim as follows:
(MCOA Op. at 5-6.)
The state-court's decision constituted a reasonable application of established Supreme Court precedent. The Fifth Amendment of the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." In order to prevent coercive custodial interrogations designed to undermine the Fifth Amendment, the Supreme Court held in Miranda v. Arizona, 384 U.S. 436 (1966) that, when an individual is in custody, law enforcement officials must warn the suspect before his interrogation begins of his right to remain silent, that any statement may be used against him, and that he has the right to retained or appointed counsel. Id. at 478-79. Under Miranda, evidence of a defendant's custodial statement may only be introduced as evidence of guilt at trial if the defendant was first given such warnings. Id. at 479.
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court considered whether a defendant's silence during a custodial interrogation could be used, not as evidence of guilt, but to impeach the defendant's testimony at trial. The Court held "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." The theory underlying Doyle is that, while Miranda warnings contain no express assurance that silence will carry no penalty, "such assurance is implicit to any person who receives the warnings." Id. at 618. On this reasoning, the Court concluded that it would be fundamentally unfair first to induce a defendant to remain silent through Miranda warnings and then to penalize the defendant who relies on those warnings by allowing the defendant's silence to be used to impeach an exculpatory explanation offered at trial. Id.
However, "[t]he Doyle rule does not . . . apply to the prosecutor's statements when the defendant waived his right to silence after being read the Miranda warnings." United States v. Lawson, 476 F. App'x 644, 650 (citing United States v. Crowder, 719 F.2d 166, 172 (6th Cir. 1983) (en banc) ("[T]he Doyle rule has no application unless the defendant has remained silent and could be considered to have done so in reliance on the implied assurances of the Miranda warnings."). Where, as here, a suspect has elected to speak after being given his Miranda warnings, his statements and silences may be used against him unless he clearly and unequivocally invokes his right to silence. See Berghuis v. Thompkins, 560 U.S. 370, 385-87 (2010); see also Anderson v. Charles, 447 U.S. 404, 408 (1980) (per curiam) ("[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent"). The court of appeals expressly relied upon Berghuis v. Thompkins in denying Petitioner's claim. That reliance constituted a reasonable application of established Supreme Court precedent.
In his sixth habeas ground, Petitioner argues that he was denied his right to due process when he was sentenced on inaccurate information. He claims that the sentencing court improperly scored Offense Variable (OV) 8, which added 15 points for asportation because Petitioner had pushed the victim out of the store to a less-safe place in the street.
Claims concerning the improper scoring of sentencing guidelines are state-law claims and typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not review a sentence for a term of years that falls within the limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to sentencing is not subject to federal habeas relief); Cook v. Stegall, 56 F.Supp.2d 788, 797 (E.D. Mich. 1999) (the sentencing guidelines establish only rules of state law). There is no constitutional right to individualized sentencing. Harmelin v. Michigan, 501 U.S. 957, 995 (1991); United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995); see also Lockett v. Ohio, 438 U.S. 586, 604-05 (1978). Moreover, a criminal defendant has "no federal constitutional right to be sentenced within Michigan's guideline minimum sentence recommendations." Doyle v. Scutt, 347 F.Supp.2d 474, 485 (E.D. Mich. 2004); accord Lovely v. Jackson, 337 F.Supp.2d 969, 977 (E.D. Mich. 2004); Thomas v. Foltz, 654 F.Supp. 105, 106-07 (E.D. Mich. 1987). As a state-law matter, both the trial court and the court of appeals found that the facts supported a finding of asportation under the OV 8. The decision of the state courts on a statelaw issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983).
Although state law errors generally are not reviewable in a federal habeas proceeding, a sentence may violate due process if it is based upon material "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980); see also United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). To prevail on such a claim, the petitioner must show (1) that the information before the sentencing court was materially false, and (2) that the court relied on the false information in imposing the sentence. United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988) (citing Tucker, 404 U.S. at 447). A sentencing court demonstrates actual reliance on misinformation when the court gives "explicit attention" to it, "found[s]" its sentence "at least in part" on it, or gives "specific consideration" to the information before imposing sentence. Tucker, 404 U.S. at 447.
In the instant case, Petitioner does not identify any fact relied upon by the court at sentencing that was materially false, nor does he identify a conclusion based on false information. Tucker, 404 U.S. at 447. Instead, Petitioner simply argues that the court should have reached a different conclusion about whether the largely undisputed facts met the definition of asportation under Michigan sentencing law. He therefore entirely fails to demonstrate a due-process violation. The state-court's rejection of Petitioner's claim was neither contrary to nor an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d).
In his thirteenth ground for habeas relief, Petitioner contends that his right to due process was violated when the trial court permitted a class of fifth-grade students to sit in the courtroom during the jury trial while graphic photos were shown. Petitioner argues that the children had subtle reactions to the photos, which captured the attention of the jury on several occasions.
The court of appeals concluded that the issue was procedurally barred:
(MCOA Op. at 6.)
As I previously discussed, when a state-law default prevents further state consideration of a federal issue, the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst, 501 U.S. at 801. To determine whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state court enforced the rule so as to bar the claim; and (3) the state procedural default is an "independent and adequate" state ground properly foreclosing federal habeas review of the federal constitutional claim. See Hicks, 377 F.3d at 551. The Michigan Court of Appeals expressly relied on Michigan's contemporaneous objection rule in denying Petitioner's claim. It is clear that the contemporaneous objection rule was well-established at the time of Petitioner's trial. See, e.g., People v. Kelly, 378 N.W.2d 365, 369-70 (Mich. 1985). A rule designed to arm trial judges with the information needed to rule reliably "serves a governmental interest of undoubted legitimacy." Lee v. Kemna, 534 U.S. 362, 385 (2002). Petitioner's failure to comply with the state's independent and adequate state procedural rule, i.e., making a contemporaneous objection, caused him to default his claims in state court. See Wainwright v. Sykes, 433 U.S. 72, 86-88 (1977); Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011); Awkal v. Mitchell, 613 F.3d 629, 648 (6th Cir. 2010). Accordingly, review by this court is barred unless Petitioner can show cause and prejudice or actual innocence. House, 547 U.S. at 536; Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray, 477 U.S. at 485.
Petitioner makes no attempt to argue cause excusing his default. Indeed, despite his numerous claims of ineffective assistance of counsel, Petitioner does not attempt to argue that counsel was ineffective for failing to object. Moreover, any such argument would itself be defaulted, as Petitioner never argued in the state court that counsel was ineffective for failing to object. To serve as cause to excuse the default, a claim of ineffective assistance of counsel must be properly exhausted. Edwards, 529 U.S. at 453; Buell, 274 F.3d at 349. Where a petitioner fails to show cause, the court need not consider whether he has established prejudice. See Engle, 456 U.S. at 134 n.43; Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir. 1985). In addition, Petitioner has neither claimed nor shown by newly discovered evidence that he is actually innocent of the offense.
For all these reasons, Petitioner's claim is procedurally defaulted.
In Ground XIV of his habeas application, Petitioner argues that he was deprived of his right to access the courts when he was denied access to legal research materials while he was awaiting trial. Petitioner contends that, as a result, he was prevented from adequately preparing for trial and from effectively helping with his defense.
The court of appeals addressed the issue as follows:
(MCOA Op. at 4.)
The state-court squarely held that Petitioner had failed to preserve his claim by raising it in the trial court. His claim therefore is procedurally defaulted. As previously discussed, procedural default ordinarily will bar federal review. See Magwood v. Patterson, 561 U.S. 320 (2010). However, the Supreme Court has held that federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits. See Hudson, 351 F.3d at 216 (citing Lambrix, 520 U.S. at 525. I therefore will proceed directly to the merits of Petitioner's access-to-the-courts claim.
The Supreme Court has never recognized the right of a defendant who is represented by counsel to have access to a law library. For that reason alone, Petitioner cannot show that the state-court's decision was contrary to or an unreasonable application of clearly established Supreme Court precedent. Moreover, the Sixth Circuit repeatedly has recognized that, once counsel has been provided for a defendant, the state has fulfilled its constitutional obligation to provide access to the courts. See Martucci v. Johnson, 944 F.2d 291, 295 (6th Cir. 1991); Holt v. Pitts, 702 F.2d 639, 640-41 (6th Cir. 1983). Because Petitioner was represented by an attorney at all times, the denial of law library privileges did not impair his rights to due process or access to the courts. United States v. Manthey, 92 F. App'x 291, 297 (6th Cir. 2004); United States v. Smith, 907 F.2d 42, 44 (6th Cir. 1990).
For the foregoing reasons, I respectfully recommend that the habeas corpus petition be denied.
