SEAN F. COX, District Judge.
This matter has come before the Court on petitioner Darell Deon Chancellor's pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's conviction for possession of 450 to 999 grams of cocaine. See Mich. Comp. Laws § 333.7403(2)(a)(ii). Petitioner alleges that the prosecutor presented insufficient evidence to sustain his conviction and that his trial attorney's ineffectiveness deprived him of a fair trial. Respondent Jeffrey Woods urges the Court to deny the petition on the basis that the state court's adjudication of Petitioner's claims was not contrary to, or an unreasonable application of, Supreme Court precedent. The Court agrees. Accordingly, the habeas petition will be denied. Nevertheless, because reasonable jurists could disagree with the Court's assessment of Petitioner's challenge to the sufficiency of the evidence at trial, the Court will grant a certificate of appealability on that issue.
Petitioner was charged with four crimes: (1) possession with intent to deliver 450 to 999 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(ii); (2) possession of 450 to 999 grams of cocaine, Mich. Comp. Laws § 333.7403(2)(a)(ii); (3) felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and (4) possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b. The charges arose from the
People v. Chancellor, No. 314437, 2014 WL 6865488, at *1 (Mich. Ct. App. Dec. 4, 2014) (majority opinion on reconsideration). Petitioner waived his right to a jury and was tried before a judge in Wayne County Circuit Court where
Id. at *3-*5 (Shapiro, J., dissenting) (footnote in original). This summary of the facts, as well as the majority's summary of the facts, are supported by the record before the Court.
On November 12, 2012, the trial court found Petitioner guilty of possession of 450 to 999 grams of cocaine, Mich. Comp. Laws § 333.7403(2)(a)(ii). The trial court acquitted Petitioner of the remaining charges, and on December 12, 2012, the trial court sentenced Petitioner as a fourth habitual offender to a term of 171 months (fourteen years, three months) to thirty years in prison.
Petitioner appealed his conviction through counsel, arguing that there was insufficient evidence at trial to support his conviction. Petitioner argued in a pro se supplemental brief that his trial attorney was ineffective for failing to: (1) call two witnesses; (2) present exculpatory documents; and (3) object to the form of the cocaine in evidence. A panel of the Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished, per curiam decision. See People v. Chancellor, No. 314437 (Mich. Ct. App. Sept. 30, 2014).
Petitioner moved for reconsideration because the Court of Appeals did not address the issue he raised in his pro se supplemental brief. On December 4, 2014, the Court of Appeals granted Petitioner's motion for reconsideration and vacated the order it issued on September 30, 2014. See People v. Chancellor, No. 314437 (Mich. Ct. App. Dec. 4, 2014). The Court of Appeals then issued another unpublished, per curiam decision in which the majority again affirmed Petitioner's conviction and Judge Shapiro dissented. See Chancellor, 2014 WL 6865488.
Petitioner raised the same two issues in an application for leave to appeal in the Michigan Supreme Court. On May 28, 2015, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Chancellor, 497 Mich. 1030; 864 N.W.2d 334 (2015). On September 11, 2015, Petitioner filed his habeas corpus petition in which he raises the issues that he submitted to the state courts on direct appeal.
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits:
28 U.S.C. § 2254(d).
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). "[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. Rather, that application must also be unreasonable." Id. at 411.
"AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and `demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)." Renico v. Lett, 559 U.S. 766, 773 (2010). "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." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id., at 103.
Petitioner alleges that there was insufficient evidence at trial to support his conviction for possession of cocaine. He contends that he was not in possession of, or near, any drugs when he was arrested, that the cocaine in evidence was found in his mother's home, and that the presence of multiple occupants of the residence mitigates against a finding of constructive possession.
The prosecutor's theory that Petitioner possessed the cocaine was based in part on Officer Geelhood's identification of Petitioner as the man he saw engaging in suspected drug deals the day before the search of the house on 32nd Street. Petitioner, however, contends that Officer Geelhood's description of that person did not match him.
Two of the three appellate judges on the panel that decided Petitioner's case concluded that the evidence was sufficient to sustain Petitioner's convictions. The dissenting judge voted to reverse Petitioner's conviction because, in his opinion, the trial court did not render sufficient factual findings for a reviewing court to determine whether the trial court properly applied the law.
The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is:
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) (emphases in original).
Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (stating that, because both Jackson and AEDPA applied to the petitioner's claim, the law commanded deference at two levels: deference to the trier-of-fact's verdict and deference to the state court's consideration of the trier-of-fact's verdict).
The Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. Petitioner was convicted of possessing between 450 to 999 grams of cocaine. To prove this crime, the prosecution was required to prove (1) that the substance in question was cocaine, (2) that the amount possessed was 450 to 999 grams, (3) that Petitioner was not authorized to possess the cocaine, and (4) that Petitioner knowingly possessed the cocaine. See People v. Hartuniewicz, 294 Mich.App. 237, 248; 816 N.W.2d 442, 448 (2011) (describing the elements of possession of Ketamine, a schedule 3 controlled substance).
The only issue in dispute here is whether Petitioner possessed the cocaine seized by a police officer at 5023 32nd Street. In Michigan,
People v. Fetterley, 229 Mich.App. 511, 515; 583 N.W.2d 199, 202 (1998) (internal and end citations omitted). "[C]onstructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband." People v. Wolfe, 440 Mich. 508, 521; 489 N.W.2d 748, 754 (1992), amended Oct. 9, 1992. "[C]ircumstantial evidence and reasonable inferences arising from the evidence are sufficient to establish possession." Fetterley, 229 Mich. App. at 515; 583 N.W.2d at 202 (citing People v. Sammons, 191 Mich.App. 351, 371; 478 N.W.2d 901 (1991)).
One of the factors that tended to show Petitioner possessed the cocaine found at the 32nd Street house was Officer Geelhood's testimony that he saw Petitioner engaging in suspected drug transactions at that address on November 1, 2011. Geelhood was "quite positive" and "absolutely" certain that Petitioner was the person he observed at 5023 32nd Street on November 1, 2011. (11/8/12 Trial Tr. at 39-40, 45, docket no. 8-3, Pg ID 226-27, 232.) He stated that he used binoculars during his surveillance and that he had no trouble viewing the suspect. (Id. at 36, 45, Pg ID 223, 232.)
At Petitioner's trial in November of 2012, Petitioner was considerably heavier than the suspect Officer Geelhood described in his warrant application following his surveillance on November 1, 2011. In addition, Geelhood did not describe the suspect in the warrant application as wearing eyeglasses even though Petitioner claimed at trial that he had worn eyeglasses all his life and probably could not walk out of the courtroom without them. (Id. at 82, Pg ID 269.) However, the prosecution produced a Secretary of State document dated January 10, 2011, which depicted Petitioner as thinner and without eyeglasses. (Id. at 44-46, 49, Pg ID 231-33, 236.) The trial court, moreover, intimated that Geelhood's identification of Petitioner was reliable (11/12/12 Trial Tr. at 31-32, docket no. 8-4, Pg ID 312-13), and a reviewing court, such as this Court,
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). Thus, "[a]n assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence claims." Id. (citing Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000)).
In addition to evidence that Petitioner was engaged in suspected drug transactions at 5023 32nd Street on November 1, 2011, the next day the
Chancellor, 2014 WL 6865488, at *2.
A rational trier of fact could have concluded from the evidence viewed in the light most favorable to the prosecution that Petitioner had a sufficient nexus to the cocaine found at 5032 32nd Street and that he constructively possessed it. As the Michigan Court of Appeals pointed out, the evidence at trial linked Petitioner to the house "through identification of him as the person involved in the front-door transactions and his admission that he at times lived there." Id.
Petitioner's parole agent, moreover, testified that the only address she had for Petitioner was the 32nd Street address. She also testified that either Petitioner or his mother informed her that Petitioner slept upstairs at that address and that Petitioner had said only his mother and sister lived there with him. (11/8/12 Trial Tr. at 65-68, document no. 8-3, Pg ID 252-55.) Additionally, the police found a piece of official mail addressed to Petitioner on the table above the hamper containing the cocaine and drugs.
The Court believes there was sufficient evidence to convict Petitioner of possessing cocaine. And even if the Court concludes otherwise, which it does not, the state appellate court's adjudication of Petitioner's claim was objectively reasonable. Although it was a close issue, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Richter, 562 U.S. at 102. The Court therefore declines to grant relief on Petitioner's sufficiency-of-the-evidence claim.
In his second and final claim, Petitioner alleges that trial counsel was ineffective for failing to call his wife and mother as defense witnesses to corroborate his testimony that he did not live at 5023 32nd Street. Petitioner claims that he lived with his wife on Robson Street at the time of the raid at the 32nd Street address and that he merely used the 32nd Street address when he was first released on parole from a prior conviction because there was no electricity at the Robson Street house at the time. He asserts that, by January 2011, he had returned to his home on Robson. Petitioner further alleges that trial counsel was ineffective for failing to introduce a quit claim deed showing that the property at 9209 Robson was deeded to him on February 8, 2008, and a utility bill addressed to him at 9209 Robson Street.
Finally, Petitioner claims that counsel was ineffective for failing to object to the fact that the cocaine in evidence was in an altered state (liquid, as opposed to, solid) when it was introduced at his trial. The Michigan Court of Appeals rejected Petitioner's claim about trial counsel on the basis that, even assuming counsel's acts were ineffective, Petitioner had not established prejudice. See Chancellor, 2014 WL 6865488, at *2 n.2.
"[T]he clearly established federal law here is Strickland v. Washington," 466 U.S. 668 (1984). Cullen v. Pinholster, 563 U.S. 170, 189 (2011). Under Strickland, a defendant petitioner must show that "counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.
The "deficient performance" prong of the Strickland test "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
To demonstrate that counsel's performance prejudiced the defense, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "This does not require a showing that counsel's actions `more likely than not altered the outcome,'" but "[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693).
Petitioner has not submitted any affidavits from his mother and wife stating that they were willing to testify that Petitioner did not live at 3023 32nd Street. Even if they had been willing to testify that Petitioner lived with his wife on Robson Street, the trial court in all likelihood would have found their credibility diminished because they were closely related to Petitioner and, as such, were interested witnesses. See Ballinger v. Prelesnik, 709 F.3d 558, 563 (6th Cir. 2013) (stating that it was within reason to assume that an alleged alibi witness's credibility would be diminished as that of an interested witness because she and the petitioner had an intimate relationship).
Furthermore, there was persuasive evidence that Petitioner stayed at the 32nd Street address at least some of the time and that he possessed the cocaine found there. As noted above, Officer Geelhood claimed to see Petitioner distributing drugs at the 32nd Street address, and an opened piece of official mail addressed to Petitioner was found on the second floor of the house, which consisted of furnished living quarters, including at least one bedroom. The mail was lying on a table in the upstairs kitchen. Under the table was a hamper containing men's clothing, two loaded handguns, and the cocaine. There was no evidence corroborating Petitioner's testimony that his brother, his male cousin, and his mother's boyfriend also lived in the house.
In light of the evidence suggesting that Petitioner constructively possessed the cocaine at the 32nd Street address, there is not a substantial probability that Petitioner would have prevailed at trial if his attorney had produced his wife and mother as witnesses or if the attorney had introduced documents showing that Petitioner lived elsewhere. Therefore, even if defense counsel's performance was deficient, Petitioner was not prejudiced by the deficient performance.
As for the liquid cocaine in evidence, Officer Geelhood testified that the cocaine consisted of white chunks when it was seized, that it had liquified by the time of trial, and that cocaine can become liquid if it is exposed to heat. (11/8/12 Trial Tr. at 31-32, docket no. 8-3, Pg ID 218-19.) A forensic scientist, moreover, explained to the trial court off the record that it was not uncommon for cocaine to change from a solid form to a liquid form. (12/12/12 Sentencing Tr. at 6-7, 9, docket no. 8-5, Pg ID 323-24, 326).
Furthermore, the parties stipulated that two of the small bags of cocaine seized by the police and later analyzed by the forensic scientist weighed 516.65 grams. (11/8/12 Trial Tr. at 62, docket no. 8-3, Pg ID 249.) Thus, the weight of the cocaine was clearly established, and defense counsel was not ineffective for objecting to the fact that the cocaine was in liquid form by the time it was introduced at trial. Even if counsel's performance was deficient, the deficient performance could not have prejudiced the defense, because the trial court stated at sentencing that the altered form of the cocaine was not a basis for granting a new trial. (12/12/12 Sentencing Tr. at 9, docket no. 8-5, Pg ID 326.)
To conclude, Petitioner has failed to demonstrate that his trial attorney's performance was deficient and that the deficient performance prejudiced the defense. The state appellate court's rejection of Petitioner's claim, moreover, was objectively reasonable and neither contrary to, nor an unreasonable application of, Strickland. The Court therefore declines to grant relief on Petitioner's ineffective-assistance-of-counsel claim.
The state appellate court's opinion and order in this case did not result in a decision that was contrary to Supreme Court precedent, an unreasonable application of Supreme Court precedent, or an unreasonable determination of the facts. It certainly was not "so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. The Court
Before Petitioner may appeal this Court's decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 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, 484 (2000).
Reasonable jurists have reached opposing conclusions on Petitioner's first claim regarding the sufficiency of the evidence. Two state-court judges found the evidence at trial sufficient to sustain Petitioner's conviction, while a third judge voted to reverse Petitioner's conviction and remand his case for a new trial. Thus, reasonable jurists could debate this Court's assessment of Petitioner's first claim. The Court therefore grants a certificate of appealability on the first habeas claim. The Court declines to grant a certificate of appealability on Petitioner's second claim (ineffective assistance of trial counsel) because reasonable jurists would not debate the Court's assessment of that claim. Finally, Petitioner may proceed in forma pauperis on appeal because he was granted leave to proceed in forma pauperis in this Court, and an appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).
