ROBERT H. CLELAND, District Judge.
Petitioner Donald Kissner incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction of tampering with evidence,
Petitioner was convicted of the above offenses following a jury trial in the Shiawassee County Circuit Court. This court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, 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. Kissner, 808 N.W.2d at 522, 523-526 (Mich. Ct. App. 2011).
Petitioner's conviction was affirmed on appeal. Id., lv. to appeal den. 804 N.W.2d 326 (Mich. 2011).
Petitioner seeks a writ of habeas corpus 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 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.
In his first claim, Petitioner argues that there was insufficient evidence to convict him of tampering with evidence and attempted obstruction of justice when the trial court failed to appoint an attorney for Petitioner as required by the court rule, MCR 6.505(A). At the hearing on Petitioner's motion for relief from judgment, Petitioner requested and was denied counsel. The court excluded excerpts of testimony from the postconviction evidentiary hearing from Petitioner's trial due to lack of counsel during the evidentiary hearing. By not objecting when the trial court addressed the error, Petitioner has waived any error. Petitioner also claims that the evidence to sustain his conviction is insufficient.
It is beyond question that "the 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). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question 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. Id. at 318-19 (internal citation and footnote omitted) (emphasis in the original).
Petitioner's primary argument is that there was insufficient evidence to convict him of these crimes because "by striking this hearing [on the post-conviction motion] the crime was struck." (Habeas Petition, Attachment A, p. 1) The trial court struck portions of the testimony given during the evidentiary hearing on Petitioner's motion for relief from judgment after finding that Petitioner was improperly denied the right to counsel during this hearing. The Court of Appeals found that any remaining claim of error was unpreserved because Petitioner "did not challenge the trial court's decision to strike Judge Lostracco's testimony as a means of addressing the error arising from the failure to provide counsel to defendant at the October 6, 2008, hearing." Kissner, 808 N.W. 2d at 530. Petitioner argues that the sworn testimony from the evidentiary hearing is the basis upon which the charges were brought and by striking the testimony, there was insufficient evidence to convict him of these charges.
The Michigan Court of Appeals found otherwise:
Kissner, 808 N.W. 2d at 527-28.
Petitioner also challenges the sufficiency of the evidence to sustain a conviction for attempted obstruction of justice.
The Michigan Court of Appeals rejected Petitioner's claim:
Kissner, 808 N.W. 2d at 529-30.
Based on this interpretation, the Michigan Court of Appeals found that the filing of the motion and affidavit containing false accusations constituted a proceeding within the meaning of the statute. The record reflects that Petitioner admitted in his brief on appeal that he filed the documents knowing that the contents were false. Furthermore, Petitioner signed the documents attesting that under perjury, the contents of the documents were true. The filing of the motion for relief from judgment and supporting affidavit is the basis of the underlying charges. The charges do not stem from the evidentiary hearing on this matter. Furthermore, the intent of filing the false documents was to obtain a new trial, which is an act meant to interfere with the orderly administration of justice. As the Michigan Court of Appeals recognized, the record clearly demonstrates sufficient evidence to sustain Petitioner's convictions for tampering with evidence and the attempted obstruction of justice.
The United States Supreme Court has "repeatedly held 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." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). State courts are the "ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential to establish an element of a crime, like the question whether a given element is necessary, is a question of state law, of which federal habeas review is not available. See Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002). Moreover, a federal court on habeas review must distinguish a sufficiency of evidence claim from state law claims which are disguised as Jackson claims. Id. (citing Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)). This court must therefore defer to the Michigan Court of Appeals' construction of the elements of state crimes. See Coe v. Bell, 161 F.3d 320, 347 (6th Cir. 1998).
The affidavit and motion have been interpreted by the Michigan Court of Appeals as a proceeding within the meaning of the applicable statutes. This evidence along with the testimony taken during Petitioner's jury trial provided a sufficient basis to sustain a conviction for tampering with evidence and attempted obstruction of justice. In finding sufficient evidence to support a conviction for tampering with the evidence and attempted obstruction of justice, the Michigan Court of Appeals held:
Kissner, 808 N.W. 2d at 531. Petitioner's first claim is without merit.
Petitioner's second claim alleges that he cannot be convicted of the underlying charges because the court "refused to appoint counsel as required by the court rules."
Due to a conviction on a prior matter, Petitioner filed a motion for relief from judgment in the trial court. In an effort to gain a new trial in his prior case, Petitioner filed a motion for relief from judgment and affidavit, knowingly containing false information. During the evidentiary hearing, held by telephone on the motion, the trial court in error refused to appoint counsel. Testimony given during this proceeding was later excluded from Petitioner's subsequent trial, which is now before this court.
Petitioner's second claim refers to a lack of counsel during the evidentiary hearing on Petitioner's prior arson conviction, which is a separate case. As such, Petitioner should have raised the issue in an appeal regarding the motion for relief from judgment. The trial court instructed the jury to not consider Petitioner's testimony given in the October 8, 2008 phone conversation, and no error resulted from a lack of counsel during the evidentiary hearing on Petitioner's motion for relief from judgment of his prior conviction.
A jury must be presumed to have followed a trial court's instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). In this case, the fact that the trial court gave a prompt, curative instruction weighs against a finding that lack of counsel in the prior proceeding rendered the trial fundamentally unfair. Serra v. Michigan Dep't of Corr., 4 F.3d 1348, 1356 (6th Cir. 1993)(habeas petitioner not entitled to habeas relief based on the prosecutor's isolated mention of petitioner's prior conviction for possession of marijuana, where the trial court gave the jurors "a strong, prompt; curative instruction").
Because counsel was appointed to represent Petitioner during his trial on the charges of tampering with evidence and attempted obstruction of justice, and with no error having occurred as a result of lack of counsel in the prior proceeding, Petitioner's second claim is without merit.
Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). 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). When a court denies a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "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. at 327. In applying this standard, a court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merits of the claim. Id. at 336-37.
Having considered the matter, the court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right as to his habeas claims. Accordingly, the court will deny Petitioner a certificate of appealability.
IT IS ORDERED that Petitioner Donald Kissner's petition for writ of habeas corpus [Dkt. # 1] is DENIED.
IT IS FURTHER ORDERED this court DECLINES to issue a certificate of appealability.
