RAY KENT, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner Paul Alan Osborn is presently incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. On March 21, 2013, following a two-day bench trial, Judge Timothy G. Hicks of the Muskegon County Circuit Court convicted Petitioner of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, resisting and obstructing a police officer, MICH. COMP. LAWS § 750.81d, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and three counts of felony firearm, MICH. COMP. LAWS § 750.227b. On April 26, 2013, the court sentenced Petitioner as a habitual offenderfourth offense, MICH. COMP. LAWS § 769.12, to concurrent terms of imprisonment of 44 to 70 years on the assault conviction, 3 to 15 years on the resisting and obstructing conviction, and 4 to 20 years on the felon in possession of a firearm conviction. Those concurrent sentence were consecutive and subsequent to concurrent sentences of 2 years on each of the felony firearm convictions.
Petitioner appealed his convictions to the Michigan Court of Appeals. The court of appeals affirmed the trial court by unpublished opinion dated February 4, 2014. People v. Osborn, No. 316228, 2014 WL 5364052 (Mich. Ct. App. Oct. 21, 2014). Petitioner applied for leave to appeal to the Michigan Supreme Court. On June 30, 2015, that court denied leave. People v. Osborn, 865 N.W.2d 12 (Mich. 2015). Petitioner did not file a petition for certiorari in the United States Supreme Court.
On June 27, 2016, Petitioner filed his petition for writ of habeas corpus in this Court raising four issues:
(Pet. Attachment C, ECF No. 1-3, PageID.108-111.) On January 11, 2017, Respondent filed an answer to the petition, (ECF No. 7.), along with the state-court record, pursuant to Rule 5, Rules Governing § 2254 Cases, (ECF No. 8).
The Michigan Court of Appeals offered this synopsis of the facts underlying Petitioner's criminal prosecution:
Osborn, 2014 WL 5364052 at *1 (footnote omitted)
The trial court heard testimony from the neighbor, Robert Bennett; his girlfriend, Dawn Dewitt; Petitioner's wife, Brandie Osborn; her son, TE; two of the four officers Petitioner fired at, Officer Robert Dudka and Sergeant Monica Shirey; other investigating officers at the scene, Deputy Daimion Cathey, Deputy Tom Johnson, Deputy Austin Aamodt; and firearms expert Michigan State Police Sergeant Russell Karsten. Petitioner was the only witness that testified for the defense. The testimony did not reveal many inconsistencies between the accounts of that early morning. Even Petitioner could not dispute the testimony elicited from the prosecution's witnesses. The only real dispute was Petitioner's intention when he fired the shot and hit Sergeant Shirey.
Petitioner testified that he was trying to commit suicide by having the police kill him. (Trial Tr. II, ECF No. 8-4, PageID.479.) He claims he was trying to provoke the officers to fire on him and that is why he pointed the shotgun at them and fired the shot. (Id., PageID.480.) But, Petitioner testified that he did not aim at any target and he was purposefully firing down so that he either would not hit the officers or would not kill them. (Id., PageID.480, 482-483.) Essentially, Petitioner testified that it was obvious he did not intend to kill, because nobody died. Petitioner testified he was an excellent marksman who would have killed anything he intended to kill. (Id., PageID.473, 481.) Petitioner acknowledged that he acted recklessly, but he disclaimed any intent to kill. (Id., PageID.483, 490.)
Other witnesses, however, offered testimony that suggests Petitioner may have intended to kill a police officer. Robert Bennett admitted or acknowledged that, on the night of the incident, he told police that Petitioner said he was going to shoot a cop. (Trial Tr. I, ECF No. 8-3, PageID.233-234, 252-253.) Dawn Dewitt testified that Petitioner expressed his intention to kill his wife, himself, and whoever else. (Id., PageID.271-272.) She understood the "whoever else" to mean police officers. (Id.) TE testified that, over the course of the incident Petitioner stated "people are gonna die tonight[,]" "I'm at least taking one of 'em down with me[,]" and "it'll be done quick." (Id., PageID.321, 341.) Officer Robert Dudka testified that when he shined his flashlight and saw Petitioner in the beam of light that Petitioner was aiming his shotgun directly at the officers; Petitioner was acting offensively. (Id., PageID.379-380.) Officer Dudka also testified that after Petitioner had been cuffed that he was sarcastically asking how the shot officer was doing. (Id.) Deputy Tom Johnson testified that Petitioner repeatedly asked "Did I kill her?" When the deputy told him no, Petitioner responded, "[T]hat's too bad." (Trial Tr. II, ECF No. 8-4, PageID.443.) Deputy Austin Aamodt testified that he accompanied Petitioner on the ambulance ride to the hospital. Petitioner told Deputy Aamodt that Petitioner was not able to reload fast enough to get another shot off and Petitioner again wondered aloud whether he had killed the officer he hit. (Id., PageID.449-450.)
This action is governed by the 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). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). 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). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015) (internal quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This 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, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, 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 of the statecourt adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S. Ct. at 44).
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 in the Supreme Court's cases, 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 405-06). "To satisfy this high bar, a habeas petitioner is required to `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.'" Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).
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).
Petitioner argues that, because he says he did not intend to kill Sergeant Shirey, and because his lack of intention to kill is further evidenced by the fact that he did not kill her, there was insufficient evidence of his intent to kill. The Michigan Court of Appeals disagreed:
Osborn, 2014 WL 5364052 at *1-2 (footnote omitted).
A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is "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." This standard of review recognizes the trier of fact's responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
The Jackson v. Virginia standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. Moreover, because both the Jackson standard and AEDPA apply to Petitioner's claims, "`the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the Michigan [trial court's] consideration of the trier-of-fact's verdict, as dictated by AEDPA.'" Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This standard erects "a nearly insurmountable hurdle" for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
The Michigan Court of Appeals applied the Jackson standard. The court of appeals cited People v. Strickland, 810 N.W.2d 660 (Mich. Ct. App. 2011), for the sufficiency standard. The Strickland court, in turn, relied on People v. Wolfe, 489 N.W.2d 748 (Mich. 1992), and People v. Nowack, 614 N.W.2d 78 (Mich. 2000). Wolfe and Nowack, in turn, cite Jackson as the source of the standard. Thus it cannot be said that the standard applied by the court of appeals was contrary to clearly established federal law.
Moreover, the Michigan Court of Appeals applied the standard reasonably. Relying on the circumstantial evidence of Petitioner's statements before and after the shooting and his actions during the incident, the court of appeals concluded there was sufficient evidence to establish that Petitioner intended to kill Sergeant Shirey. The court of appeals' factual findings in support of its conclusion are reasonable on the record.
Petitioner invites the Court to turn the Jackson standard on its head by pointing to the evidence that supports a finding that he did not intend to kill Sergeant Shirey. York v. Tate, 858 F.2d 322, 330 (6th Cir. 1988) ("[T]he district court turned the Jackson standard on its head . . . [r]ather than asking whether any reasonable juror could have found petitioner guilty, the district court considered whether any reasonable juror could have found the petitioner not guilty."). The quantum of evidence that supports Petitioner's position on the issue is not material. The only question is whether the evidence, viewed in a light most favorable to the prosecution, would support finding intent to kill beyond a reasonable doubt. The Michigan courts' conclusions that there was sufficient evidence of intent is consistent with Jackson and well supported by the record.
In arguing about the insufficiency of the intent evidence, Petitioner also makes reference to the defense of involuntary intoxication.
Osborn, 2014 WL 5364052 at *2-3.
It is the prerogative of the state to define when a defense is available to a particular crime. See Foucha v. Louisiana, 504 U.S. 71, 96 (1992) (acknowledging "the general rule that the definition of both crimes and defenses is a matter of state law. . . ."); Gimotty v. Elo, 40 F. App'x 29, 32 (6th Cir. 2002) ("States are free to define the elements of, and defenses to, crimes. . . . In determining whether a petitioner was entitled to a defense under state law, federal courts must defer to state-court interpretations of the state's laws. . . .") The State of Michigan offers a defense of involuntary intoxication to specific intent crimes. A critical element to the defense, however, is missing in Petitioner's case-the ingestion of the intoxicant must be involuntary. In People v. Smith, No. 322283, 2015 WL 5952074 at *3 (Mich. Ct. App. Oct. 13, 2015), the court explained:
Smith, 2015 WL 5952074 at *3. The court of appeals noted that Petitioner offered no evidence of regarding any of the elements. Indeed, the evidence indicated that Petitioner had reason to know that Klonopin caused an intoxicating effect. The state court ruled the defense was not available under these circumstances.
It is not the province of a federal habeas court to re-examine state-law determinations on state-law questions. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 68. The decision of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The Sixth Circuit repeatedly has recognized "`that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'" Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76). Accordingly, the state courts' determinations regarding the availability of the involuntary intoxication defense to the crime charged, bind this Court; they are "axiomatically correct" and conclusively resolve Petitioner challenge regarding involuntary intoxication. Under the circumstances, the state court determinations were neither contrary to nor an unreasonable application of clearly established federal law and they were well supported by the record. Therefore, Petitioner is not entitled to habeas relief.
Petitioner next complains that his trial was rendered unfair by instances of prosecutorial misconduct and that his counsel was ineffective because he failed to object. The instances of prosecutorial misconduct fall into two categories: (1) questions that suggested Petitioner had the burden of proof;
The Michigan Court of Appeals determined that the prosecutor's questions did not constitute an impermissible shifting of the burden of proof:
Osborn, 2014 WL 5364052 at *3. The court of appeals determination is consistent with federal law on this issue. As the United States District Court for the Eastern District of Michigan has noted:
Richards v. Berghuis, No. 4:13-cv-13763, 2014 WL 3708844 at *6 (E.D. Mich. May 6, 2014) (report and recommendation, adopted 2014 WL 3708978 (E.D. Mich. Jul. 28, 2014), certificate of appealability denied, No. 14-2106 (6th Cir. Apr. 16, 2015)).
In this instance, however, there was really no risk that the trier of fact might have been confused by misstatements regarding the burden of proof. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). Petitioner cannot show that the alleged misconduct prejudiced him during his bench trial. Unlike a jury, a trial judge, sitting as the trier of fact, possesses an understanding of the law, allowing him to ignore errors and decide a case based solely on evidence properly admitted at trial. See United States v. Joseph, 781 F.2d 549, 552 (6th Cir. 1986); People v. Taylor, 628 N.W.2d 55, 62 (Mich. Ct. App. 2001); see also Hargrave-Thomas v. Yukins, 236 F.Supp.2d 750, 778-79 (E.D. Mich. 2002) (showing prejudice from prosecutorial misconduct in a bench trial is more difficult than demonstrating prejudice in a jury trial, because a judge presiding over a bench trial is presumed to know the law and apply it in rendering the verdict), rev'd and remanded on other grounds, 374 F.3d 383 (6th Cir. 2004).
Muskegon County Circuit Court Judge Timothy G. Hicks is an experienced jurist. There can be no doubt he is familiar with the burden of proof in a criminal proceeding. He would not be swayed by a prosecutor's misstatement regarding that burden if, in fact, such a misstatement had been made here. Moreover, Judge Hicks stated the standard by which he evaluated the evidence on the record: "The prosecutor must prove each element of the crime beyond a reasonable doubt. The defendant is not required to prove his innocence or do anything." (Trial Tr. II, ECF No. 8-4, PageID.517.) Judge Hicks specifically noted that the prosecutor had proven Petitioner's intent to kill beyond a reasonable doubt. (Id., PageID.519.) The court noted that there was no testimony supporting an insanity defense. (Id., PageID.521.) In short, the questions by the prosecutor regarding the absence of expert medical testimony or corroborating testimony regarding Petitioner's acumen as a marksman were not improper burden-shifting. But, even if the questions were improper, Petitioner cannot show prejudice because Judge Hicks was not misled regarding the burden of proof. Petitioner, therefore, is not entitled to habeas relief as the result of these instances of alleged prosecutorial misconduct.
The same result follows with regard to Petitioner's argument that the prosecutor improperly introduced hearsay testimony through his questions. The Michigan Court of Appeals acknowledged that the questions were improper. Osborn, 2014 WL 5364052 at *4. Nonetheless, the court of appeals concluded that Petitioner was not entitled to relief because he had demonstrated no prejudice. The court of appeals explained that the trial court was presumed to know that the statements of counsel were not evidence. Petitioner offered nothing to overcome that presumption.
For the reasons stated above with regard to Petitioner's burden-shifting argument, the determinations of the Michigan Court of Appeals are neither contrary to, nor an unreasonable application of, clearly established federal law. The factual determinations upon which the conclusions rest are well supported in the record. Accordingly, Petitioner is not entitled to habeas relief.
Petitioner contends that Officer Dudka offered impermissible opinion testimony when he testified that he believed Petitioner intended to kill him. Petitioner further contends that Officer Johnson and Deputy Aamodt did the same when they testified that Petitioner was not remorseful. Petitioner claims that the testimonies were inadmissible because they embraced ultimate issues to be decided by the trier of fact. Petitioner equates opinion testimony regarding his intent and remorsefulness to testimony regarding his guilt. Admission of the testimony, Petitioner argues, violated his due process rights.
The Michigan Court of Appeals rejected Petitioner's argument at its premise:
Osborn, 2014 WL 5364052 at *4 (footnote omitted). Put simply, though the court of appeals recognized that under state law opinion testimony regarding a defendant's guilt is inadmissible, it concluded that the challenged testimonies were admissible because they did not express an opinion as to Petitioner's guilt.
To establish his entitlement to habeas relief, Petitioner must show that the decision is contrary to, or and unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or he must show that the factual determinations upon which the decision is based are unreasonable on the record. Petitioner has not identified any Supreme Court case holding that the opinion testimony of a witness concerning the guilt or innocence of a criminal defendant violates the Due Process Clause. Instead, he cites state court decisions, which cannot serve as the basis for habeas relief, and the Sixth Circuit Court of Appeals decision in Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988).
In Cooper, the Sixth Circuit held that it was fundamentally unfair and a violation of due process to permit a detective to testify as an expert witness that all the evidence linked the petitioner, and no one else, to the crime. In that case, a police officer testified that "[t]he only evidence we found that would link anyone to this crime would be [the defendant]." Id. The court noted that "the police officer was [impermissibly] permitted to testify to his own, personal opinion that such evidence as there was against other suspects was insufficient to justify their arrest . . . . This opinion suggests to the jury the guilt of the accused and the innocence of other suspects." Id. (quotation marks omitted). Consequently, the Sixth Circuit found that "[t]he opinion-testimony had a direct influence on the jury's consideration of petitioner's guilt or innocence." Id. at 287. The court found that the trial court committed error with regard to each of the petitioner's three grounds for relief, and when considered cumulatively, the errors produced a trial setting that was fundamentally unfair. Id. at 288.
Cooper was decided before enactment of the AEDPA. It expressly relies upon: (1) state court authorities, rather than federal law as clearly established by the Supreme Court; and (2) the cumulation of error, a practice the Supreme Court has never held would support habeas relief. Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002) ("The Supreme Court has not held that constitutional claims that would not individually support habeas relief may be cumulated in order to support relief."). The continuing vitality of Cooper after enactment of the AEDPA is questionable. Since Enactment of the AEDPA, courts often distinguish the Cooper decision. See, e.g., United States v. Cobb, 397 F. App'x 128 (6th Cir. 2010); Arnold v. Palmer, No. 1:11-cv-840, 2016 WL 4442810 (W.D. Mich. Jul. 25, 2016); Sanford v. Smith, No. 2:11-cv-10748, 2013 WL 5913948 (E.D. Mich. Oct. 24, 2013); Dorsey v. Banks, 749 F.Supp.2d 715 (S.D.Ohio 2010). Whatever persuasive force Cooper retains, it is not clearly established federal law and, thus, cannot form the basis for habeas relief.
Moreover, the court of appeals' factual determinations regarding the nature of the challenged testimony are reasonable on the record. The witnesses were not testifying regarding whether or not the evidence sufficed to establish guilt. Indeed, they were not testifying regarding their investigation of the crimes, as is often the case when police officers testify. They were testifying regarding what they witnessed as Petitioner committed the crime, and immediately thereafter, as well as the inferences they drew from their observations. Such testimony is admissible under Michigan law and did not render the trial fundamentally unfair. Accordingly, Petitioner is not entitled to habeas relief.
Petitioner complains that the trial court improperly considered his lack of remorse at sentencing. Petitioner contends that was improper under the Fourteenth Amendment, because the court imposed sentence based on inaccurate information; the Fifth Amendment, because it violates Petitioner's right against self-incrimination; and state law. The Michigan Court of Appeals did not expressly address the constitutional claims, but it rejected Petitioner's challenge under state law:
Osborn, 2014 WL 5364052 at *5.
"[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). Claims concerning the improper application 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).
Although many sentencing issues are nothing more than state law claims, 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), quoted in Koras v. Robinson, 123 F. App'x 207, 213 (6th Cir. Feb. 15, 2005); 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. Tucker, 404 U.S. at 447;United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F. App'x at 213 (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). 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 444, 447.
Petitioner contends the trial court sentenced him based on misinformation when it stated that Petitioner showed absolutely no remorse. It is certainly true that Petitioner testified that he was remorseful:
(Trial Tr. II, ECF No. 8-4, PageID.489.) Petitioner's own self-serving testimony does not suffice to show that the information before the sentencing court was false. In fact, the trial court, when it announced the verdict, specifically found that Petitioner showed no remorse. (Id., PageID.519.) There was ample evidence in the record to support that finding, notwithstanding Petitioner's testimony. In that regard, Petitioner's reaction to shooting Sergeant Shirey stood in stark contrast to his remorseful reaction to shooting Mr. Bennett.
Petitioner does not identify any facts found by the court at sentencing that were either materially false or based on false information. He therefore fails to demonstrate that his sentence violated due process. Tucker, 404 U.S. at 447; United States v. Lanning, 633 F.3d 469, 477 (6th Cir. 2011) (rejecting due process claim where the petitioner failed to point to specific inaccurate information relied upon by the court). Petitioner's Fourteenth Amendment claim has no merit.
Petitioner's Fifth Amendment claim is similarly misdirected. 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." The protection against self-incrimination means not only that the state cannot compel an accused to testify, but also that the state cannot draw negative inferences from the accused's silence. Griffin v. California, 380 U.S. 609, 615 (1965). The proscription against drawing negative inferences from the accused's silence extends to the sentencing phase of a criminal case. Mitchell v. United States, 526 U.S. 314, 327-328 (1999). With that clearly established federal law as a backdrop, the federal courts have struggled with how and when a court can rely upon a criminal defendant's lack of remorse in imposing sentence without implicating the Fifth Amendment's protection against self-incrimination. See Miller v. Lafler, 505 F. App'x 452, 457-462 (6th Cir. 2012) (recognizing that the Mitchell dissenters predicted "`a decent period of confusion in the lower courts'" and acknowledging that the "prediction . . . appears to have come true.").
The Miller court carefully reviewed the decisions of the Sixth Circuit and its sister circuits attempting to apply the clearly established law of Mitchell. The analysis is thorough and bears careful reading; however, with respect to Petitioner's argument, all that matters is the conclusion:
Miller, 505 F. App'x at 461-462.
The Miller court's reasoning applies with at least equal force here. Petitioner was not compelled to testify here. He did so voluntarily. (Trial Tr. II, ECF No. 8-4, PageID.469-471.) Petitioner waived any right against self-incrimination by his voluntary, knowing, and intelligent decision to testify. Brown v. United States, 356 U.S. 148 (1958). Although the court obviously did not credit Petitioner's testimony, Petitioner specifically testified regarding whether he was remorseful. (Id., PageID.489.) This is certainly not a situation where the trial court drew negative inferences from a defendant's silence. No federal court, and certainly not the Supreme Court, has expanded Mitchell to preclude consideration of a criminal defendant's lack of remorse under these circumstances. Accordingly, Petitioner has not and cannot show that the Michigan Court of Appeals resolution of this issue was contrary to, or an unreasonable application of, clearly established federal law.
Even though I have concluded that Petitioner's habeas petition should be denied, under 28 U.S.C. § 2253(c)(2), the Court must also 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). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467.
I have examined each of Petitioner's claims under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, 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." Id. "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id.
I find that reasonable jurists could not conclude that this Court's denial of Petitioner's claims would be debatable or wrong. Therefore, I recommend that a certificate of appealability should be denied.
For the foregoing reasons, I respectfully recommend that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied.
