JOHN CORBETT O'MEARA, District Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of armed robbery, MICH. COMP. LAWS § 750.529, first-degree home invasion, Mich. Comp. Laws § 750.110a(2), possession of burglar's tools, MICH. COMP. LAWS § 750.116, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, carrying a concealed weapon, MICH. COMP. LAWS § 750.227, resisting and obstructing a police officer, MICH. COMP. LAWS § 750.81d(1), and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. As a result of these convictions, Petitioner was sentenced as a third habitual offender to 14-to-25 years in prison for each of his armed robbery convictions, 6to-20 years in prison for his first-degree home invasion conviction, 5-to-10 years in prison for his possession of burglar's tools conviction, 40-to-60 months in prison for his felon in possession of a firearm conviction, 40-to-60 months in prison for his carrying a concealed weapon conviction, 1-to-2 years in prison for his resisting and obstructing a police officer conviction, and a consecutive two-year term for his felony-firearm conviction.
The amended habeas petition enumerates six claims:
The petition will be denied because Petitioner's claims are without merit. The Court will also deny Petitioner a certificate of appealability and deny him permission to proceed on appeal in forma pauperis.
This Court recites verbatim the relevant facts relied upon by the state trial court in its opinion denying Petitioner's motion for relief from judgment, 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. Reed, No. 04-003329-02, Order, *1-2 (Wayne County Cir. Ct. April 19, 2010).
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims:
Petitioner also filed a pro se supplemental brief with the Court of Appeals, raising one additional claim:
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion, but remanded the case to the trial court to correct information in the pre-sentence investigation report. People v. Reed, No. 263509 (Mich. Ct. App. Nov. 21, 2006).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Reed, 477 Mich. 1114 (2007)(table).
Petitioner subsequently filed his initial habeas petition with this Court on March 11, 2008. Respondent filed an answer on September 17, 2008. Petitioner then filed a motion to stay the petition so he could return to state court and exhaust additional claims. The Court granted the motion and ordered the case to be stayed and held in abeyance on September 21, 2009.
Petitioner returned to the trial court and filed a motion for relief from judgment, raising the following claim:
The trial court denied the motion for relief from judgment in an opinion and order dated April 19, 2010.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). People v. Reed, No. 303178 (Mich. Ct. App. Sept. 20, 2011). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court, but the application was likewise denied under Rule 6.508(D). People v. Reed, 491 Mich. 940 (2012) (table).
Petitioner then filed a motion to reopen his habeas case, which the Court granted. Respondent filed an answer on November 9, 2012, and the case is now ready for disposition.
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.
The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,'and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[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, 131 S.Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id.
"[I]f this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Thus, a "readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law." Woodford, 537 U.S. at 24. 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 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, 131 S. Ct. at 786-87.
Petitioner's first claim asserts that there was insufficient evidence presented to support his felon in possession of a firearm conviction. Specifically, he contends that the prosecutor failed to present any evidence that he was convicted of a specified felony.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). On direct review, review of a sufficiency of the evidence challenge must focus on whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). In the habeas context, "[t]he Jackson standard must be applied `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
"Two layers of deference apply to habeas claims challenging evidentiary sufficiency." McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court "must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown, 567 F.3d at 205, citing Jackson, 443 U.S. at 319). Second, if the Court were "to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id.
Petitioner does not challenged the sufficiency of the evidence that he possessed a firearm. Rather, he asserts that there was no evidence offered to establish that he had a qualifying felony to satisfy that element of the felon in possession of a firearm offense.
The record shows that towards the close of the prosecutor's case, the prosecutor moved to admit an exhibit to show that Petitioner had a prior felony, and that Petitioner's counsel stipulated to that fact:
Tr. 10/15/04, pp. 32-33.
Under Michigan law, a stipulation may be used to establish that a defendant has been convicted of a specified felony. People v. Dupree, 486 Mich. 693, 704 n. 12 (2010). Indeed, state law directs prosecutors to accept a defendant's willingness to stipulate to the fact that he was convicted of a specified felony in order to avoid any prejudice the defendant might face if evidence of his conviction was presented to the jury. See People v. Swint, 225 Mich.App. 353, 377-379 (1997). Because Petitioner here availed himself of the opportunity to stipulate to this element and avoid the potential prejudice resulting from more detailed evidence being presented to the jury regarding his prior felony conviction, he can hardly complain that insufficient evidence was presented regarding his record. The decision of the state appellate court was reasonable, and this claim does not present a basis for granting habeas relief.
Petitioner's second, third, fourth, and fifth claims all concern the jury instruction defining the beyond a reasonable doubt standard used by the trial court in his case. His second claim attacks the instruction itself. His third claim asserts that his counsel was ineffective for failing to object to it. And his fourth and fifth claims assert that the state courts unreasonably adjudicated the issue. All of these claims fail because the instruction was not erroneous.
"The government must prove beyond a reasonable doubt every element of a charged offense." Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citing In re Winship, 397 U.S. 358 (1970)). "[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Id. at 5 (internal citation omitted). "Rather, `taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.'" Id. at 5 (quoting Holland v. United States, 348 U.S. 121(1954)) (alteration in original).
The trial court instructed the jury regarding the prosecutor's burden of proof as follows:
Tr. 10/18/04, pp. 7-8.
Petitioner has failed to show that the reasonable doubt instruction was improper or otherwise deprived him of a fundamentally fair trial. There was no error in the court's definition of a reasonable doubt as a doubt to which you could assign a reason. The instruction did not misstate the definition of "reasonable doubt" or shift the burden of proof to the defense. In fact, the trial court specifically stated that Petitioner carried no burden at all, and that the prosecutor's burden never shifts.
Similarly, the trial court's use of the "moral certainty" language in the reasonable doubt instruction did not violate due process. While the United States Supreme Court in Cage v. Louisiana, 498 U.S. 39, 41 (1990), invalidated a jury instruction that defined reasonable doubt in terms of "grave uncertainty" and "actual substantial doubt" and required conviction based upon "moral certainty," the Court later limited that holding in Victor. In Victor, the Court ruled that the mere use of the term "moral certainty" in a jury instruction defining reasonable doubt by itself does not violate due process, because it merely impresses upon the jury the need to reach a subjective state of near certainty of guilt. Victor, 511 U.S. at 14-16. The Court further found that use of the term "moral certainty" in the challenged instruction did not violate due process because the instruction provided that the jurors had to have an abiding conviction as to the defendant's guilt, equated moral certainty with doubt that would cause a reasonable person to hesitate to act, and told the jurors to consider the evidence without indulging in speculation, conjectures, or unsupported inferences. Id. at 21-22, 114 S. Ct. at 1250-51. The Court distinguished the instruction in Cage, which failed to provide any explanation or meaning for the phrase "moral certainty." Id. at 21.
The Sixth Circuit has since held that the use of the term "moral certainty" does not automatically render a jury instruction on reasonable doubt fundamentally unfair. In Austin v. Bell, 126 F.3d 843 (6th Cir.1997), the Sixth Circuit ruled that a reasonable doubt instruction including the phrase "moral certainty" did not impermissibly lower the burden of proof because the instruction also provided that reasonable doubt was "an inability to let the mind rest easily" after considering the evidence. Id. at 847. The court concluded that the "moral certainty" language, considered in light of the entire instruction, did not create a reasonable likelihood that the jury impermissibly applied the jury instruction. Id.
This case is consistent with Victor and Austin. The trial court's reasonable doubt instruction conveyed the proper degree of certainty for conviction to the jury, referring to an "abiding conviction" of guilt and equating moral certainty with a fair, honest, and reasonable doubt. The trial court had also explained that Petitioner was presumed innocent and that the burden of proof was on the prosecutor. Given such circumstances, Petitioner cannot establish that the reasonable doubt jury instruction impermissibly lowered the burden of proof or otherwise rendered his trial fundamentally unfair. Habeas relief is not warranted on his second claim.
Petitioner's third, fourth, and fifth claims also fail as a result. Petitioner's counsel was not ineffective for failing to object to a jury instruction that was not erroneous. See Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006). And the Michigan Court of Appeals decision was not unreasonable where it reached the correct result. These claims therefore do not merit habeas relief.
Petitioner's sixth claim asserts that his trial counsel was ineffective for failing to call his accomplice as a defense witness and that his appellate counsel was ineffective for failing to raise this issue during his direct appeal. These issues were raised in the trial court in Petitioner's motion for relief from judgment. The trial court denied the claim, finding that the overwhelming evidence of Petitioner's guilt prevented Petitioner from showing that he was prejudiced by his counsel's failure to call this witness.
The Sixth Amendment right to counsel and the right to effective assistance of counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient performance prejudiced the defense. Id. at 687. These two components are mixed questions of law and fact. Id. at 698. Further, "[t]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. If "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.
With respect to the performance prong of the Strickland test, a strong presumption exists that counsel's behavior lies within the wide range of reasonable professional assistance. See id. at 689; see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). "[D]efendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citation omitted). "[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. With respect to the prejudice prong, the reviewing court must determine, based on the totality of the evidence before the factfinder, "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
Petitioner contends that his accomplice, Crispen, would have testified at trial that Petitioner was not involved in the crime, but that he had met Petitioner soon after the incident to pay off a debt. Petitioner argues that this explains why he was caught with the proceeds of the robbery.
The trial court found that defense counsel's decision not to call Crispin because he likely would not have been believed was a reasonable decision. The court also found that the overwhelming evidence of Petitioner's guilt prevented Petitioner from demonstrating prejudice:
Opinion Denying Motion for Relief From Judgment, pp. 2-3.
Considering the deferential standard of review for claims adjudicated on the merits in the state court, Petitioner has not demonstrated entitlement to habeas relief based on his ineffective assistance of counsel claims. As recently explained by the Supreme Court, Strickland establishes a high burden that is difficult to meet, made more so when the deference required by § 2254(d)(1) is applied to review a state court's application of Strickland:
Richter, 131 S. Ct. at 788.
The opinion of the trial court, at a minimum, presents a "reasonable argument" that Petitioner was not prejudiced by his counsel's failure to call Crispin as a witness for the defense. Accordingly, the Court finds that the state court's adjudication of Petitioner's ineffective assistance of counsel claims was not contrary to, nor did it involve an unreasonable application of, the clearly established Supreme Court standard. The petition will therefore be denied.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473 (2000). The Court finds that reasonable jurists could not debate this Court's resolution of Petitioner's claims, and will therefore deny a certificate of appealability. The Court will also deny Petitioner permission to proceed on appeal in forma pauperis because any appeal of this decision would be frivolous.
Accordingly, the Court
The Court further
