GERSHWIN A. DRAIN, District Judge.
Jess William Bowman, ("petitioner"), confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for seconddegree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the St. Clair County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
People v. Bowman, No. 327596, 2016 WL 6127703, at *1 (Mich. Ct. App. Oct. 18, 2016).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 500 Mich. 983, 893 N.W.2d 630 (2017).
Petitioner seeks habeas relief on the following grounds:
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 statecourt decision applied clearly established federal law erroneously or incorrectly." Id. at 411. "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, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, 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." Id. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
The Michigan Court of Appeals reviewed and rejected a portion of petitioner's judicial bias claim under a plain error standard because petitioner failed to preserve a portion of his claim as a constitutional issue at the trial court level. AEDPA deference still applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017); cert. den. 138 S.Ct. 1998 (2018).
Petitioner alleges that the trial court violated his right to present a defense by excluding evidence pertaining to Sarah Gelusia's physical condition and her fear of injury at the hands of Tim Belisle.
Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he also has the right to present his own witnesses to establish a defense. This right is a fundamental element of the due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("Whether 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.'") (internal citations omitted). However, an accused in a criminal case does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court, in fact, has indicated its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. Trial court judges have "wide latitude" to exclude evidence that is repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or confusion of the issues. Id. at 689-90 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Moreover, under the standard of review for habeas cases as enunciated in § 2254(d)(1), it is not enough for a habeas petitioner to show that the state trial court's decision to exclude potentially helpful evidence to the defense was erroneous or incorrect. Instead, a habeas petitioner must show that the state trial court's decision to exclude the evidence was "an objectively unreasonable application of clearly established Supreme Court precedent." See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 2003).
Petitioner alleges the additional medical information pertaining to Gelushia's medical condition, and her feelings of a threat by Tim Belisle, were admissible to support his defense of others claim. The Michigan Court of Appeals found that the trial court reasonably limited the trial testimony of Gelushia as follows:
People v. Bowman, 2016 WL 6127703, at *2-3.
Because further testimony pertaining to Gelushia's physical condition would have been redundant to the extensive testimony already provided, the exclusion of this additional testimony did not violate petitioner's right to present a defense. There was ample evidence offered in support of petitioner's self-defense or defense of others claim. The additional testimony would have been cumulative of other evidence that petitioner had acted in self-defense or defense of others, and thus, the Michigan Court of Appeals' determination that the exclusion of this evidence did not violate petitioner's right to present a defense was not an unreasonable application of clearly established law, such as to entitle petitioner to relief. See Blanton v. Elo, 186 F.3d 712, 715-16 (6th Cir. 1999).
Petitioner also claims that evidence of Gelushia's feelings should have been admissible to show that Gelushia was in fear of her life. But as the Michigan Court of Appeals correctly explained, "Defendant's self-defense or defense-of-others claim turned on whether he, not Gelushia, had an honest and reasonable belief that there was a danger of death or great bodily harm." Further, the court found that the "Testimony concerning Gelushia's supposed feelings would have confused the issue for the jury." People v. Bowman, 2016 WL 6127703, at *3. This conclusion did not involve an unreasonable application of clearly established law, especially considering the evidence was only remotely relevant, if at all, to petitioner's self-defense or defense of others claim. See Farley v. Lafler, 193 F. App'x 543, 546 (6th Cir. 2006).
Finally, even if the trial court judge did err in excluding the additional testimony pertaining to Gelushia's physical condition and/or her feelings pertaining to the fear of being injured, any error was harmless. In Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), the U.S. Supreme Court held that for purposes of determining whether federal habeas relief must be granted to a state prisoner on the ground of federal constitutional error, the appropriate harmless error standard to apply is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Here, petitioner fails to demonstrate such an effect.
To constitute lawful self-defense under Michigan law, the evidence must show that: (1) the defendant honestly and reasonably believed that he was in danger; (2) the danger feared was death or serious bodily harm or imminent forcible sexual penetration; (3) the action taken appeared at the time to be immediately necessary; and (4) the defendant was not the initial aggressor. See Johnigan v. Elo, 207 F.Supp.2d 599, 608-09 (E.D. Mich. 2002) (citing People v. Barker, 437 Mich. 161, 165, 468 N.W.2d 492 (1991); People v. Kemp, 202 Mich.App. 318, 322, 508 N.W.2d 184 (1993); People v. Deason, 148 Mich.App. 27, 31, 384 N.W.2d 72 (1985)). Importantly, a defendant is not entitled to use any more force than is necessary to defend himself. Id. at 609 (citing Kemp, 202 Mich. App. at 322). "The law of self-defense is based on necessity, and a killing or use of potentially lethal force will be condoned only when the killing or use of potentially lethal force was the only escape from death, serious bodily harm, or imminent forcible sexual penetration under the circumstances." Id. (internal citation omitted). In Michigan, the right to act in self-defense includes the right to defend another person. Id. (citing People v. Curtis, 52 Mich. 616, 622, 18 N.W.2d 385 (1884); People v. Wright, 25 Mich.App. 499, 503, 181 N.W.2d 649 (1970)).
The evidence in this case suggests that petitioner intended to physically harm the victim, even before their fatal encounter, thereby cutting against his self-defense claim. Indeed, dispatch officer Shane Pruitt testified that when he received a call from petitioner on the night of the murder, petitioner appeared irate and "said something to the extent, well, you need to get fucking security over here before I beat this guy's ass, have him cleanup his mess." (T. 2/4/2015, pp. 360-364). The evidence also suggests that petitioner used more force than was necessary to combat the victim. Security officer Walter Emerick testified that when he arrived at petitioner's residence, he observed a person lying in the street in front of a pickup truck. Emerick described petitioner as agitated and excited. When Emerick asked petitioner what had happened, he replied, "I thought the guy, the guy was coming at me, I thought he was going to hit me so I shot him." Emerick reiterated, "You shot him?" And Petitioner said, "Yeah, he, I thought he was going to attack me." Id. at 377-378. The jury also heard from the victim's girlfriend, Jessica Thomas, who testified that the victim was unarmed. Id. at 444. Further, that after petitioner shot the victim, petitioner said, "it was no biggy." Id. This attitude was corroborated by several other witnesses, who testified that petitioner stated, somebody should "call 911" and get this "piece of shit" or "mother fucker" from in front of my house. (T. 2/5/2015, pp. 569, 593, 644).
Considering that petitioner appeared irate and willing to physically harm the victim, even before their fatal encounter, and the fact that the victim was unarmed, a reasonable jury could have concluded that petitioner's actions were inconsistent with someone acting in self-defense, even with the additional evidence that the state trial court excluded. Accordingly, excluding the evidence of Gelushia's fear of physical injury, and the additional testimony pertaining to Gelushia's frail physical condition, did not have a substantial or injurious effect on petitioner's case, such as to entitle him to habeas relief. See Fleming v. Metrish, 556 F.3d 520, 536-37 (6th Cir. 2009). Petitioner's first claim for relief is therefore denied.
Petitioner alleges that the trial court judge exhibited bias against him by excluding testimony, claiming it relied on hearsay; by demonstrating impatience and hostility while telling Gelushia to "answer the question"; by telling trial counsel to "move on" during opening statement and while questioning a witness; by making objections from the bench; and by stopping trial counsel's closing argument when it exceeded the agreed-upon 30 minute time limit.
The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). The right to an impartial judge is a right whose deprivation a state prisoner may complain of in a federal habeas corpus proceeding. Tyson v. Trigg, 50 F.3d 436, 438 (7th Cir. 1995) (citing to Turner v. Ohio, 273 U.S. 510, 523 (1927); In Re Murchison, 349 U.S. 133 (1955)). Trial judges have a wide latitude in conducting trials, but they must preserve an attitude of impartiality and scrupulously avoid giving the jury the impression that the judge believes that the defendant is guilty. Harrington v. State of Iowa, 109 F.3d 1275, 1280 (8th Cir. 1997); Brown v. Palmer, 358 F.Supp.2d 648, 657 (E.D. Mich. 2005).
In reviewing an allegation of judicial misconduct in a habeas corpus petition, a federal court must ask itself whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process. Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995); Brown, 358 F. Supp. 2d at 657. To support an allegation of bias by a state trial judge in order to obtain habeas relief, a habeas petitioner must factually demonstrate that during the trial, the judge assumed an attitude which went further than an expression of his or her personal opinion and impressed the jury as being more than an impartial observer. Brinlee v. Crisp, 608 F.2d 839, 852-53 (10th Cir. 1979); Brown, 358 F. Supp. 2d at 657. A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a significant degree before habeas relief could be granted. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985); Brown, 358 F. Supp. 2d at 657. The Supreme Court has ruled that "expressions of impatience, dissatisfaction, annoyance, and even anger" do not establish judicial bias or misconduct. Liteky v. United States, 510 U.S. 540, 555-56 (1994). "A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune." Id.
Importantly, the pertinent question on habeas review is not whether the judge's questions or comments might constitute reversible error if the conviction was being reviewed on direct review, but whether the state appellate court's rejection of the judicial misconduct claim was a reasonable or unreasonable application of clearly established federal law. See Allen v. Hawley, 74 F. App'x 457, 460-61 (6th Cir. 2003).
In the present case, the Michigan Court of Appeals found petitioner's challenge to the trial court's hearsay ruling waived, because he did not raise his challenge in his statement of questions presented to the court. People v. Bowman, 2016 WL 6127703, at *9. Moreover, the court found that trial counsel acquiesced in the underlying hearsay ruling. Id. With respect to the alleged inappropriate questions and remarks by the trial judge in connection with this hearsay information, the court found them to be isolated and simply an expression of "frustration that defendant seemed to be avoiding a direct answer of the court's precise question regarding the basis of defendant's knowledge, which was pertinent to the court's earlier evidentiary ruling." Id. at *10. The alleged inappropriate remark to Gelushia to "answer the question" was likewise made in response to answers given by Gelushia that appeared to suggest that she was being "evasive or untruthful." Id. at *11. The Michigan Court of Appeals also rejected petitioner's other complaints as to the trial judge's remarks to "move on" and objections from the bench, because trial counsel had previously acquiesced in the limitations the judge was then imposing and because petitioner did not provide any support for his arguments. Id. at 7, 11. Petitioner fails to demonstrate that the Michigan Court of Appeals' decision was based on unreasonable application of clearly established law.
In addition, Petitioner argued that it was improper for the trial judge to rebuke trial counsel when he went three (3) minutes beyond the agreed-upon 30-minute time limit for closing argument. Although petitioner claims that the trial court judge belittled defense counsel by curtailing his closing argument when it went beyond the agreed-upon time limit, the Michigan Court of Appeals indicated that the judge's frustration with trial counsel's behavior was not explicitly expressed until after the jury was excused following closing argument:
Id. at *12. Any expression of impatience and/or frustration with defense counsel in front of the jury was limited to defense counsel's repetitive questioning and disregard for the court's evidentiary rulings; thus, the judge's conduct was not prejudicial, such as to deprive petitioner of a fair trial. See Todd v. Stegal, 40 F. App'x 25, 27 (6th Cir. 2002).
In this case, the trial court judge's reprimands "were not out of line, nor were they substantially adverse to the [petitioner] himself. There is no showing that the trial judge ever intimated [her] opinion on the merits of the case." Id. When viewing the record in its entirety, the judge's conduct throughout the course of the trial did not display the type of "`deep-seated favoritism or antagonism' that would `leave [a reviewing court] with an abiding impression that the trial judge permitted [herself] to become personally embroiled with [defense counsel]' so as to constitute a Due Process violation." Gordon v. Lafler, 710 F. App'x 654, 664 (6th Cir. 2017), cert. denied, No. 17-1404, 2019 WL 113079 (U.S. Jan. 7, 2019) (citing Liteky, 510 U.S. at 555). Moreover, any prejudice was also cured by the fact that the judge instructed the jury that her rulings were not evidence, and further advised the jurors that if they believed she had an opinion about how they should decide the case, that they should disregard that opinion and that they were the only judges of the facts. (T. 2/6/15, p. 890); see Todd v. Stegal, 40 F. App'x at 28.
Finally, petitioner points to unfavorable rulings by the judge in support of his judicial bias claim. But the Supreme Court has indicated that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. "In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved." Id. For that reason, and those articulated throughout this opinion, petitioner is not entitled to relief on his judicial bias claim.
The Court will deny the petition for a writ of habeas corpus. The Court will also deny a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability, because reasonable jurists would not find this Court's assessment of petitioner's claims to be debatable or wrong. Johnson v. Smith, 219 F.Supp.2d 871, 885 (E.D. Mich. 2002). The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Allen v. Stovall, 156 F.Supp.2d 791, 798 (E.D. Mich. 2001).
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is
IT IS FURTHER ORDERED that a certificate of appealability is
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
