GEORGE CARAM STEEH, District Judge.
Petitioner Barry Coleman filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Coleman is a state prisoner in the custody of the Michigan Department of Corrections pursuant to a second-degree murder conviction. He argues that his conviction was obtained in violation of his constitutional rights because he received ineffective assistance of trial counsel and the prosecutor committed misconduct. Respondent argues that the claims are procedurally defaulted and/or meritless. The Court finds that habeas relief is not warranted and denies the petition.
Coleman's convictions arise from the murder of Tiffany Cody, whose body was discovered in the Price Nature Center in Bridgeport Township, Michigan on September 7, 2008. The Michigan Court of Appeals described the circumstances leading to Coleman's conviction as follows:
People v. Coleman, No. 296756, 2011 WL 2423814, *1 (Mich. Ct. App. June 16, 2011).
Coleman filed a direct appeal of his conviction, raising these claims through counsel: (i) Coleman should not have been sentenced as a habitual fourth offender because he had only two prior felony convictions; and (ii) insufficient evidence was presented to establish second-degree murder. Coleman filed a pro-per supplemental brief, raising the following additional claims: (i) ineffective assistance of counsel; and (ii) prosecutorial misconduct. The Michigan Court of Appeals affirmed Petitioner's conviction and sentences. Id.
Coleman filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Coleman, 490 Mich. 972 (Mich. 2011).
Coleman then filed the pending habeas petition. He raises these claims:
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, a state prisoner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims —
28 U.S.C. § 2254(d).
"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 789 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Coleman's prosecutorial misconduct claim concerns the prosecutor's closing argument. Coleman claims that the prosecutor committed misconduct by implying that defense expert Daniel Spitz was paid to testify a certain way and by arguing facts not in evidence when he stated that Coleman sold drugs in order to finance a trip to Chicago.
Respondent argues that this claim is procedurally defaulted. The Court finds it unnecessary to address the question of procedural default. It is not a jurisdictional bar to review of the merits of an issue, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits," Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). Application of a procedural bar would not affect the outcome of this case, and it is more efficient to proceed directly to the merits.
The "clearly established Federal law" relevant to a habeas court's review of a prosecutorial misconduct claim is the Supreme Court's decision in Darden v. Wainwright, 477 U.S. 168, 181 (1986). Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153, (June 11, 2012). In Darden, the Supreme Court held that a "prosecutor's improper comments will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This Court must ask whether the Michigan Court of Appeals' decision denying Petitioner's prosecutorial misconduct claims "`was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Parker, ___ U.S. at ___, 132 S. Ct. at 2155, (quoting Harrington, 562 U.S. at ___, 131 S. Ct. at 786-87.
First, Coleman objects to the prosecutor's treatment of the defense's expert witness, Dr. Spitz, in closing argument. Dr. Kanu Virani, an expert in forensic pathology who performed Cody's autopsy, testified for the prosecution. Dr. Virani testified that, when her body was found, Cody had been dead approximately 8 to 10 hours. He testified that she suffered three separate blows to her head. He concluded that the injuries were caused by a blunt object. The blows to her head were made with considerable force because they caused extensive brain injury. Dr. Virani concluded that Cody's death was caused by blunt-force head trauma. The defense expert witness, Dr. Spitz, disagreed with Dr. Virani's conclusion that Cody died as a result of blunt force trauma. He testified that Cody's injuries were consistent with a fall, and Cody's head striking a concrete or asphalt surface. Dr. Spitz further testified that he was paid $300 to $325 an hour and a flat $3,000 fee to testify. During rebuttal closing argument, the prosecutor discussed Dr. Spitz's testimony as follows:
Tr., 11/24/09, at 61-63.
The Michigan Court of Appeals held that the prosecutor's argument was not improper because the prosecutor's argument fairly attacked the thoroughness of Dr. Spitz's investigation relative to his fee, and the argument was based upon the evidence presented. Coleman, 2011 WL 2423814 at *3. Coleman has not shown that the prosecutor's conduct was improper. The facts that Dr. Spitz was compensated to testify, was not present for the autopsy, did not contact Dr. Virani, and was busy with other aspects of his professional life were evidence in the case. As discussed by the Michigan Court of Appeals, the prosecutor connected his comments about Dr. Spitz to the evidence presented in the case. The prosecutor was permitted to argue how Dr. Spitz's opinion regarding Cody's cause of death was inconsistent with other evidence introduced at trial. Finally, the evidence supporting Petitioner's second-degree murder conviction was very strong. Consequently, the decision of the Michigan Court of Appeals was a reasonable application of Supreme Court precedent.
Coleman next argues that the prosecutor committed misconduct by stating in closing and rebuttal arguments that Coleman sold drugs to Toni Clements as a means to finance his flight to Chicago because he feared police in Michigan would otherwise arrest him. Specifically, the prosecutor argued, in closing argument:
Tr., 11/24/09, 41.
And, in rebuttal:
Id. at 65.
The Michigan Court of Appeals held that the argument was not improper because the prosecutor was free to argue all reasonable inferences relating to his theory of the case and this argument was a reasonable inference based upon the evidence presented. Coleman, 2011 WL 2423815 at *3. "[T]he Darden standard is a very general one, leaving courts `more leeway ... in reaching outcomes in case-by-case determinations.'" Parker, ___ U.S. ___, 132 S.Ct. at 2155, (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Michigan Court of Appeals reasonably disposed of Coleman's claim. It was not improper for the prosecutor to argue that Coleman used the money earned selling drugs to finance his trip to Chicago and that he fled to Chicago to avoid arrest. Even if the court of appeals erred in its holding, habeas relief would be denied because the court of appeals' decision was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S., at ___, 131 S. Ct., at 786-787. Habeas relief, therefore, is denied.
Coleman also argues that habeas relief should be granted because his attorney was ineffective in failing to object to the alleged instances of prosecutorial misconduct.
To establish that she received ineffective assistance of counsel, a petitioner must show, first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner may show that counsel's performance was deficient by establishing that counsel's performance was "outside the wide range of professionally competent assistance." Id. at 689. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687.
To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court's review of counsel's performance must be "highly deferential." Id. at 689. Habeas relief may be granted only if the state-court decision unreasonably applied the standard for evaluating ineffective-assistance-of-counsel claims established by Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). "The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable — a substantially higher threshold." Id. at 123 (internal quotation omitted).
The Michigan Court of Appeals held that Coleman's prosecutorial misconduct claims were meritless. This Court has held that the state court's conclusion regarding the prosecutorial misconduct claims was not contrary to or an unreasonable application of Supreme Court precedent. Therefore, counsel was not ineffective in failing to object to proper conduct. See Kittka v. Franks, 539 F. App'x 668, 674 (6th Cir. 2013) (holding counsel cannot be ineffective for failing to make a futile objection).
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings requires that a court "issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates "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).
In this case, the Court concludes that reasonable jurists would not debate the conclusion that the petition does not state a claim upon which habeas relief may be granted. Therefore, the Court will deny a certificate of appealability.
Accordingly,
