DENISE PAGE HOOD, District Judge.
This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, ("Petitioner"), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney's drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.
Petitioner's conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem's relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.
Following Petitioner's conviction, he filed a direct appeal with the Michigan Court of Appeals raising the following claims: (1) trial court error in the admission of prior "bad acts" evidence; (2) trial court error in the admission of hypnotically induced identification testimony; (3) trial court error in its denial of Petitioner's motion for a new trial; (4) ineffective assistance of counsel; (5) trial court error in the admission of in-court identification testimony when it was improperly suggestive; (6) trial court error in its decision to deny Petitioner's motion to suppress statements made by him to the police as they were searching his home; (7) prosecutorial misconduct; (8) trial court error in its admission of rebuttal testimony from a prosecution witness; (9) trial court error in the admission of testimony from a police officer who eavesdropped on a telephone conversation between Petitioner and Ms. Merrill; and (10) insufficient evidence to sustain the charge of first-degree murder. The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Freeman, No.: 103276 (Mich.Ct.App. Sept. 13, 1993).
Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court and raised the following claims:
The Michigan Supreme Court denied leave to appeal. People v. Freeman, 445 Mich. 911, 519 N.W.2d 894 (1994) (table). Petitioner filed a motion for reconsideration with the Michigan Supreme Court and relief was denied. People v. Freeman, 522 N.W.2d 636 (1994).
On October 1, 2004, Petitioner filed a motion for relief from judgment in the trial court raising the following claims: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) defective jury instruction; (4) new law regarding concealment of promises to informants; (5) newly discovered evidence; (6) Petitioner's exposure to the jury while in prison garb; (7) the verdict was against the great weight of the evidence; and (8) insufficient evidence to sustain a first-degree murder conviction. The trial court denied Petitioner's motion on January 11, 2005. Petitioner filed a motion for rehearing and reconsideration with the trial court and relief was again denied on February 3, 2005.
Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the following issues:
Petitioner's application for leave to appeal was denied. People v. Freeman, No: 260864 (Mich.Ct.App. Aug. 25, 2005). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same claims. Relief was denied on January 30, 2006. People v. Freeman, 474 Mich. 1025, 708 N.W.2d 423 (2006) (table).
Now pending before the Court is Petitioner's petition for writ of habeas corpus filed on January 23, 2007, wherein he raises the following habeas claims:
Under 28 U.S.C. § 2254(d), a petitioner is not entitled to relief in a federal habeas corpus proceeding unless the state court's adjudication of his or her due process claim resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
"Clearly established federal law" means "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is "contrary to" 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." Id. at 412-13, 120 S.Ct. 1495.
"Under the `unreasonable application' clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Furthermore, a federal court may not issue a writ of habeas corpus under the "unreasonable application" clause of 28 U.S.C. § 2254(d) "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 365, 120 S.Ct. 1495; see also Price v. Vincent, 538 U.S. 634, 638-39, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable," as opposed to transforming the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was reasonable. Williams v. Taylor, 529 U.S. at 411, 120 S.Ct. 1495.
Respondent argues that the habeas petition should be dismissed because it is time-barred. Alternatively, Respondent asserts that several habeas claims should be denied because they are procedurally defaulted. For the reasons set forth below the Court disagrees with both arguments and the habeas petition will be reviewed on the merits.
Petitioner argues that he received ineffective assistance of counsel because: (1) his defense attorney was using illegal narcotics while representing Petitioner at trial; (2) defense counsel created a conflict of interest problem; (3) defense counsel obstructed Petitioner's opportunity and desire to testify in his own defense, and (4)
To show that Petitioner was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two-prong test. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court sets forth the two-pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690, 104 S.Ct. 2052. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689, 104 S.Ct. 2052. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. 2052.
To satisfy the prejudice prong under Strickland, 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." Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." McQueen v. Scroggy, 99 F.3d 1302, 1311-12 (6th Cir.1996). Under Strickland, a court must presume that decisions by counsel as to whether to call or question witnesses are matters of trial strategy. See Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir.2002).
Petitioner claims that defense counsel was addicted to drugs while representing him during his trial court proceedings and, therefore, was afforded ineffective assistance of counsel. Specifically, Petitioner cites the following deficiencies in his legal representation: (1) failure to object and/or move to strike the testimony of various witnesses; and (2) defense counsel's inattention to the trial court proceedings while scribbling non-sensical statements on paper. Pet. at 19-22; Pet., Ex. E.
It is undisputed that defense counsel had a substance abuse problem around the time he was serving as Petitioner's defense attorney. Pet. Ex. A, pp. 38-45; Ex. B. It is also undisputed that defense counsel was found to be ineffective during his service as counsel in a subsequent case. Pet., Ex. A, pp. 136-38. "The Strickland standard applies to claims of ineffective assistance of counsel due to drug use." Muniz v. Smith, 2009 WL 2928898, *10 (E.D.Mich. Sept. 10, 2009). An attorney's use of drugs at or around the time of his legal representation does not raise the presumption of prejudice to the client. Id.; Burdine v. Johnson, 262 F.3d 336, 395 (5th Cir.2001) ("Prejudice has not been presumed for claims of denial of effective-assistance
As previously stated, Petitioner points to instances during trial where he believes defense counsel should have responded differently. With any trial of this length (spanning the course of 1½ months) there will be judgment calls, and no two attorneys would try the same case in the exact same way. See Durr v. Mitchell, 487 F.3d 423, 439 (6th Cir.2007) ("In a trial of any size, numerous potentially objectionable events occur. `[T]he Constitution does not insure that defense counsel will recognize and raise every conceivable constitutional claim.'"). If an attorney chooses not to place certain objections on the record or move to strike certain testimony, that does not conclusively mean that his legal representation is deficient or that the defendant will suffer prejudice as a result. Id. ("[A]ny single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial to a client that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.").
The Michigan Court of Appeals addressed the issue of the admission of character and "bad acts" testimony in this case, to which no objections were made by defense counsel, as follows:
People v. Freeman, No.: 103276, 1-2 (Mich.Ct.App. Sept. 13, 1993)
Petitioner also raised an ineffective assistance of counsel issue on direct appeal, but it was not based upon defense counsel's drug use. The basis of Petitioner's claim was that defense counsel did not move to suppress certain witness identification evidence. The Michigan Court of Appeals ruled as follows:
Id. at 2-3.
A Ginther hearing was held assessing the effectiveness of counsel at trial. At the hearing, there was a finding that defense counsel provided effective assistance. The matter was reviewed by the Michigan Court of Appeals, and it agreed with the trial court findings. A review of the record demonstrates that defense counsel's drug use during trial did not prejudicially impact Petitioner's defense.
Before the trial began, defense counsel made several substantive motions on Petitioner's behalf, some of which were successful. Tr. 2/2/87, pp. 3, 24-54. Defense counsel also represented to the court that, of the 83 listed prosecution witnesses, he had interviewed each witness and traveled to Escanaba, Flint and other cities outside of the Detroit metropolitan area in order to obtain those interviews. Tr. 4/8/87, pp. 2-3. He also told the trial court that he had requested search warrants and police reports in furtherance of his discovery. Id. Additional motions were filed regarding venue, discovery, suppression, request for a polygraph, request for appointment of a private investigator, request to interview certain witnesses. See, e.g., id. at 1, 6, 9, 24-25, 33, 39, 48. Once the trial began, additional substantive motions were filed, including motions for mistrial, exclusion of hypnosis testimony and suppression. Tr. 5/1/87, pg. 652; Tr. 5/5/87, pg. 849; Tr. 5/7/87, pg. 1514.
In addition to the numerous motions filed by Petitioner, defense counsel's advocacy at trial cannot be deemed deficient or ineffective. As noted by the Michigan Court of Appeals and by defense counsel at his Ginther hearing, trial counsel had a strategy to place Ms. Merrill in a bad light with the jury by attacking her credibility. The record demonstrates the level of aggressiveness displayed by defense counsel in an effort to discredit her incriminating testimony. Tr. 4/30/87, pp. 568-651; Tr. 5/1/87, pp. 652-55, 696-700, 726-31. Petitioner was also very aggressive with his cross-examination of Sergeant Bowns, infra, which is set forth in more detail below. Defense counsel demonstrated his knowledge regarding the physical evidence including shell casings, fingerprints, and
Defense counsel also lessened the negative impact of Officer David Hall's testimony. Officer Hall overheard a conversation between Petitioner and Ms. Merrill and testified about several incriminating statements made by Petitioner to Ms. Merrill. However, defense counsel was able to aggressively attack Officer Hall's testimony on the grounds that the alleged incriminating statements by Petitioner attested to during direct examination were not included in the initial police report, but rather were only recalled by Officer Hall several months after the fact at trial. Tr. 5/7/87, pp. 1303-26.
Defense counsel called 21 defense witnesses. Since Petitioner was identified as wearing an army-style kind of jacket, defense counsel called Bruce Lamb to testify that the Army had an office in the area near the crime scene, which would not make it unusual to see other individuals in the area wearing army style jackets. Tr. 5/13/87, pp. 1771-75. He also called Booker T. Brown, a cell-mate of Petitioner's, and Donna Henderson, a security officer at the college where Mr. Macklem was shot. Tr. 5/13/87, pp. 1754-56, 1817-19.
Reviewing the record in its entirety, the Court finds that defense counsel's overall scope of legal representation was not prejudicial to Petitioner's case. Petitioner is not entitled to habeas relief relative to this prong of his ineffective assistance of counsel argument.
Petitioner argues that due to a conflict of interest, defense counsel was not aggressive in his cross-examination of Sergeant John Bowns, a witness for the prosecution. Defense counsel represented Sergeant Bowns in a prior and unrelated civil employment matter.
Petitioner has a Sixth Amendment right to conflict free representation by his counsel. See Smith v. Anderson, 689 F.2d 59, 62-63 (6th Cir.1982); see also Gillard v. Mitchell, 445 F.3d 883 (6th Cir.2006). Sergeant Bowns was an investigating officer in the murder of Mr. Macklem. Petitioner asserts that his counsel was ineffective relative to his cross-examination of Sergeant Bowns, specifically as follows:
Pet. at 27.
The record belies Petitioner's argument. Petitioner has identified lines of questioning defense counsel could have followed during his cross-examination of Sergeant Bowns. However, the record demonstrates how defense counsel approached the trial court outside of the presence of the jury relative to Sergeant Bowns, and leveled several forms of attack against his testimony in an effort to lessen the negative impact of his testimony against Petitioner: accusations by defense counsel about the identity of the affiant on a search warrant; defense counsel's challenge to the admissibility of statements made by Petitioner to Sergeant Bowns; accusations by defense counsel that Sergeant Bowns' conduct amounted to manifest injustice; accusations by defense counsel that Sergeant Bowns was perjuring himself; accusations by defense counsel that Sergeant Bowns intimidated Michelle Woodworth into not testifying. Tr. 5/12/87, pp. 1514-18. A reading of the record reveals that despite defense counsel's choice not to attack Sergeant Bowns in the matter in which Petitioner suggests, the Court finds that defense counsel performed an adversarial, lengthy, and zealous cross-examination of Sergeant Bowns on a variety of subjects, including Bowns' lack of experience in leading homicide investigations, Bowns' mishandling of evidence during the investigation, and his having searched Petitioner's house without finding anything associated with the homicide. See, e.g., Tr. 5/1/87, pp. 817-25, 836-38; Tr. 5/5/87, pp. 954-56; Tr. 5/6/87, pp. 1213-39.
Although Petitioner points out other questioning and forms of attack on Sergeant Bowns while on the witness stand, he has not overcome the presumption that defense counsel's decision not to approach his cross-examination of Sergeant Bowns in the manner suggested by Petitioner was sound trial strategy. Nor has Petitioner established that an actual conflict of interest exists in this case. "[A]n actual conflict of interest mean[s] precisely a conflict that affected counsel's performance as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
Only where there is dual representation involving the attorney does that presumption of prejudice standard apply. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Sixth Circuit has interpreted Sullivan's presumption of prejudice standard, stating that it does not extend "to conflicts of interest other than those of multiple concurrent representation." Smith v. Hofbauer, 312 F.3d 809, 816 (6th Cir.2002). Petitioner has failed to establish that defense counsel was representing Sergeant Bowns and Petitioner at the same time. Therefore, the presumption of prejudice standard does not apply. Id. As a result, the traditional Strickland standard applies in determining the issue of ineffective assistance of counsel. Lordi v. Ishee, 384 F.3d 189, 193 (6th Cir.2004).
Petitioner cannot establish that counsel labored under an actual conflict of interest that adversely affected defense counsel's performance. Mickens, 535 U.S. at 171, 122 S.Ct. 1237. Defense counsel elicited testimony from his former client, was aggressive during his cross-examination of Sergeant Bowns, challenged Sergeant Bowns' testimony before the trial court, and treated Sergeant Bowns in an adversarial manner. The Court does not find
Petitioner argues that he was denied effective assistance of counsel because his defense attorney precluded him from testifying in his own defense at trial. He claims that he was, at a minimum, entitled to an evidentiary hearing on the matter so that he could make a record of the issue. It is well-established that a criminal defendant has a constitutional right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 52-53 & n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Neuman v. Rivers, 125 F.3d 315, 318 (6th Cir.1997).
McCoy v. Bock, No. 01-10052, 2003 WL 22994984, *11 (E.D.Mich. Dec. 17, 2003) (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991), and citing Chang v. United States, 250 F.3d 79, 84-85 (2nd Cir.2001); Siciliano v. Vose, 834 F.2d 29, 31 (1st Cir.1987)).
Hodge v. Haeberlin, 579 F.3d 627, 639-40 (6th Cir.2009) (citations omitted); (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir.2000)).
In this case, Petitioner attests in a self-serving affidavit that trial counsel precluded him from testifying at trial. Petitioner does not present any evidence other than his own assertions, which allege that he was misled or believed he was not allowed to testify; he was threatened into not testifying; and he was uninformed about his constitutional right to testify in his own defense. Petitioner stated in his affidavit:
Pet., Ex. D, ¶¶ 40, 41. This claim was not raised on direct appeal, however, Petitioner asserts that he requested that his appellate attorney raise the issue and he failed to do so. Id. at ¶¶ 48, 49.
Michelle Woodworth, Petitioner's ex-girlfriend, also stated in her affidavit: "[a]fter the trial in which Frederick Freeman was convicted of murder, attorney Dean told her that he had made a mistake by not allowing Frederick Freeman to testify at trial." Pet., Ex. G, pg. 5, ¶ 31. Finally, in a May 19, 1987 article in the "Times Herald," jurors from Petitioner's trial were interviewed afterwards and one of them said: "[a]nd if he was so innocent, why didn't he testify himself and tell us he didn't do it.'" Pet., Ex. M.
Here, although the record supports that Petitioner in fact did not testify in his own defense and there is no trial record evidence to support Petitioner's assertions that he tried to exercise his constitutional right to testify with his defense attorney and with the trial court judge, Petitioner's affidavit provides a sufficient amount of detail explaining why there would be no record of his efforts to testify in his own defense. A disagreement between defense counsel and Petitioner would not necessarily make its way to the record. Also, if the trial judge only heard from Petitioner through defense counsel, Defendant would not have had an opportunity to express his concerns to the trial judge. Petitioner would only be left with his own account of what transpired relative to his inability to testify.
The Court is aware that self-serving affidavits are reviewed with suspicion and skepticism as they are typically drafted for the purpose of supporting the affiant's position in a case. However, if the affidavit is detailed or contains particulars which would "give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim," the affidavit would be sufficient evidence to support habeas relief. See McCoy, No. 01-10052, 2003 WL 22994984, *11. Petitioner's affidavit amounts to more than "bald assertions." The affidavit sets forth specific and factual details regarding Petitioner's attempts to testify at his trial. He states that defense counsel failed to tell Petitioner that he had a constitutional right to testify and Petitioner was unaware of that fact. Petitioner states that his attorney threatened to abandon his case if he persisted with his efforts to testify in his own defense. Petitioner states that he tried to tell the judge of his desire to testify and would not be
"[D]efense counsel's role is to advise the defendant whether or not the defendant should take the stand, but it is for the defendant, ultimately, to decide." Webber, 208 F.3d at 550-51. As noted, a defendant must "alert the trial court" that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand. If the defendant fails to do so, waiver is presumed. Id. at 551. In this case, Petitioner provides a sworn statement that he did alert the judge and that there was a disagreement with his attorney. The Court finds that Petitioner did all that he could do to exercise his right to testify in his own defense and was not only precluded from doing so, but also prevented from making a record of the claim. Habeas relief is therefore warranted on this claim.
Petitioner argues that defense counsel was ineffective due to his poor decision to not call Michelle Woodworth as a witness. Petitioner asserts that Ms. Woodworth, his live-in girlfriend at the time, would have provided an alibi for Petitioner. She would have also provided testimony disputing the theory that Petitioner was an obsessive ex-boyfriend who was so jealous of Ms. Merrill's and Mr. Macklem's relationship that he was driven to kill Mr. Macklem. Petitioner asserts that Ms. Woodworth would have testified that it was Petitioner who wanted to sever the relationship with Ms. Merrill.
A review of the record indicates that defense counsel's decision to not call Ms. Woodworth may have been one of strategy because the record reflects that defense counsel clearly knew about Ms. Woodworth, but: (1) chose to use unrelated, unimpeachable, and more reliable alibi witnesses to support his defense theory; (2) had trouble locating her after she appeared to leave town; and (3) was not sure if he wanted to use her as an alibi witness because of her tumultuous relationship with Petitioner and her untruthfulness in the past. Mot. New Tr. 6/15/87, pp. 9-13, 15-16.
However, during Petitioner's first motion for a new trial, defense counsel argued as a basis for the motion that Michelle Woodworth's testimony was newly discovered evidence as she was then prepared to submit to polygraphs and/or provide testimony to support the fact that Petitioner was with her at the time Macklem was being murdered. Id. at 5. The trial court denied Petitioner's motion for a new trial and stated as follows:
Id. at 15. Additionally, although the prosecutor stated at the hearing that he concluded defense counsel's basis for not endorsing Ms. Woodworth as an alibi witness was strategic, he also said the following:
Id. at 9. By defense counsel's own admission, some of the reasons for not calling Ms. Woodworth as a witness at trial still existed at the time of the motion hearing for a new trial, for example, her troubled relationship with Petitioner. Despite that fact, he still asked the trial court to accept her testimony as newly discovered so that it could be heard at a new trial. Defense counsel stated as follows:
Id. at 5. Moreover, Ms. Woodworth's affidavit testimony states as follows:
Pet., Ex. G, pp. 4-5. The testimony set forth in Ms. Woodworth's affidavit not only would have provided a strong alibi for Petitioner, but it contradicts defense counsel's representations that she was uncooperative and that he did not know how to contact her for purposes of securing her trial testimony. Therefore, for defense counsel to fail to preserve her testimony or endorse her as an alibi witness, regardless of whether he was certain that she would be called as a witness, is as described by the trial court as a failure to exercise "reasonable diligence."
Petitioner argues that he was "paraded in front of his jury in prison garb and fully manacled" Pet. at 34. Petitioner states in his habeas petition that "[n]o reason was advanced for these measures." Id. at 35. However, Petitioner's affidavit reads as follows:
Pet. Ex. D, ¶ 32. Respondent does not address the issue in its responsive pleading.
Compelling a defendant to wear identifiable prison attire at trial can violate the constitutional right to due process because it impairs the presumption of innocence so basic to our adversary system. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Use of visible shackles during the guilt or penalty phases of a trial is forbidden under the Constitution "unless that use is `justified by an essential state interest'—such as the interest of courtroom security— specific to the defendant on trial." Deck v. Missouri, 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)) (emphasis in original).
Initially, during pre-trial motions, voir dire, and during the first part of the first witness' testimony, it appears from the record that Petitioner was brought to the courthouse in prison garb, passed the jury room, and subsequently changed into civilian clothing in an office outside of the courtroom. Tr. 4/30/87, pg. 446. The trial court judge grew impatient with this practice because following Petitioner's arrival to court, everyone would be required to wait an additional 25 minutes for Petitioner to get dressed. Id. Therefore, the trial judge requested that the prosecutor facilitate Petitioner getting dressed before he came to court so that the trial proceedings could begin on time, and the courthouse would not be used as a dressing room. Id. at 446-47.
From the time during the testimony of the prosecutor's first witness until the conclusion of the trial, Petitioner no longer arrived at court in prison garb. For the limited number of times Petitioner did arrive to the courthouse in prison garb, he claims that habeas relief is warranted since the jury saw him when he passed by the jury room.
Petitioner claims that the trial court erroneously instructed the jury regarding the concept of reasonable doubt. An erroneous jury instruction warrants habeas corpus relief only where the instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional] right." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (quoting Cupp, 414 U.S. at 146, 94 S.Ct. 396). The jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72, 112 S.Ct. 475 (quoting Cupp, 414 U.S. at 147, 94 S.Ct. 396). The court must "inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).
A federal court may not grant the writ of habeas corpus on the ground that a jury instruction was incorrect under state law, Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and "[a]n omission[ ] or an incomplete instruction[ ] is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). On habeas review, this Court is bound by the state court's interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005).
Tr. 5/15/87, pp. 2032-34
It is, of course, beyond debate that the state must prove each element of a charged offense beyond a reasonable doubt in order to sustain a conviction. See In re Winship, 397 U.S. at 363, 90 S.Ct. 1068. On habeas review, the proper inquiry for a court assessing a reasonable doubt instruction is whether there is a reasonable likelihood that the jury did apply the jury instruction in an unconstitutional manner. Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Here, Petitioner contends that the reasonable doubt instruction was deficient because it contained language referring to "moral certainty" and "the possibility of innocence" that reduced the prosecution's burden of proof. Petitioner believes that the term "moral certainty" in the reasonable doubt instruction impermissibly lowered the burden of proof. In Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), the Supreme Court held that an instruction that defined
In Victor v. Nebraska, the Supreme Court limited its holding in Cage, reasoning that the mere use of the term "moral certainty" in a jury instruction defining reasonable doubt by itself did not violate due process. The Court determined that the term "moral certainty," read in the context of the instruction in Victor, merely impressed upon the jury the need to reach a subjective state of near-certitude of guilt. The Court found no reasonable likelihood that the jury would have understood the phrase to be disassociated from the evidence in that case. 511 U.S. at 14-16, 114 S.Ct. 1239. The Court also found that use of the term "moral certainty" in the Nebraska jury instruction on reasonable doubt did not violate due process because the jurors were further instructed that they had to have an abiding conviction as to the defendant's guilt; the instruction equated doubt sufficient to preclude moral certainty with doubt that would cause a reasonable person to hesitate to act; and the jurors were told that they should be governed solely by the evidence introduced before them, without indulging in speculation, conjectures, or inferences not supported by the evidence. Id. at 21-22, 114 S.Ct. 1239. The Court distinguished these jury instructions from the instruction found unconstitutional in Cage, noting that in Cage the instruction merely told the jury that they had to be morally certain of the defendant's guilt without any additional explanations that would give meaning to the phrase "moral certainty." Id.
The Sixth Circuit has held that the use of the term "moral certainty" does not automatically render a jury instruction on reasonable doubt fundamentally unfair. In Austin v. Bell, 126 F.3d 843, 847 (6th Cir.1997), the Sixth Circuit Court of Appeals ruled that a reasonable doubt instruction, which stated that moral certainty was required to convict the defendant on a criminal charge, did not impermissibly lower the burden of proof. The instruction in that case included an additional statement that reasonable doubt was engendered by "an inability to let the mind rest easily" after considering all of the proof in the case. Id. That language, the court believed, lent content to the phrase "moral certainty." Id. In context, the court concluded, the phrase did not create a reasonable likelihood that the jury impermissibly applied the jury instruction. Id.; see also Cone v. Bell, 243 F.3d 961, 971-72 (6th Cir.2001), reversed on other grounds by Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).
This Court believes that the reasonable doubt instruction in this case cogently conveyed to the jurors the degree of certainty they needed to possess according to the Constitution before they could convict. The trial court also instructed the jury that the Petitioner was presumed innocent; the burden of proof never shifted from the prosecution; and the Petitioner was not required to come forward with any evidence. The Petitioner is therefore not entitled to habeas relief on this claim.
Petitioner presents five arguments in support of his prosecutorial misconduct claim: (1) Michelle Woodworth, an alibi witness for Petitioner, was harassed and threatened into not testifying by Sergeant Bowns and Officer Hudson; (2) the jailhouse informant was made promises for his testimony against Petitioner and those promises were concealed; (3) the prosecutor made a reference during his closing argument about Petitioner not taking the stand; (4) the prosecutor made inflammatory remarks in front of the jury; and (5) the prosecutor used irrelevant and prejudicial testimony and evidence.
The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The Sixth Circuit has adopted a two-part test for deciding whether prosecutorial misconduct violates a defendant's due process rights. See Macias v. Makowski, 291 F.3d 447, 452 (6th Cir.2002) (citing cases). First, the court must determine whether the challenged statements were indeed improper. Id. at 452. Upon a finding of impropriety, the court must decide whether the statements were flagrant. Id.
Flagrancy is determined by an examination of four factors: 1) whether the statements tended to mislead the jury or prejudice the accused; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before a jury; and 4) the total strength of the evidence against the accused. Id.; see also Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000) (citing United States v. Francis, 170 F.3d 546, 549-550 (6th Cir. 1999)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citations omitted).
Petitioner argues that Philip Joplin, a jailhouse informant, was given consideration in exchange for his testimony against Petitioner. Petitioner also asserts that Joplin was intimidated into providing incriminating testimony against Petitioner. Since Joplin's testimony was tainted and very damaging to Petitioner's case, as a result of the promises made in exchange for his testimony, Petitioner asserts that habeas relief is warranted.
Joplin testified at trial that while temporarily housed in a holding cell with Petitioner, for unrelated reasons, Petitioner admitted to shooting and killing Mr. Macklem. Tr. 5/7/87, pp. 1348-49. He also testified that he was not offered anything in exchange for his testimony. Id. at 1354. In fact Joplin admitted that he initiated contact with the prosecutor's office to inform them about Petitioner's admissions. Id. at 1353-54. Joplin's reason for coming forward was to change his "prison mentality." Id. at 1354.
Approximately three years later at Petitioner's second motion for a new trial, on September 4, 1990, Joplin stated that he did receive consideration for his testimony in the form of not being required to return
Approximately four years later on July 15, 1994, Joplin executed an affidavit recanting his testimony that Petitioner admitted to shooting Mr. Macklem and claimed that he made up the story as leverage to receive some type of consideration in return. Pet., Ex. J, ¶¶ B, C. The affidavit also reiterated the fact that he was made promises in exchange for his testimony against Petitioner. Id. at ¶ H. Joplin also states in the affidavit that he was coached by law enforcement officials and prosecutors in order to prepare him for his testimony at trial against Petitioner. Id. ¶¶ I, M.
In this case, the Court finds that although there is evidence offered by Petitioner to establish the existence of an undisclosed cooperation agreement and that a prosecution witness' trial testimony was perjured, "[r]ecanting affidavits ... are viewed with extreme suspicion." U.S. v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991). Here, such suspicion is warranted.
First, the affidavit comes seven years after Petitioner's conviction, and four years after Petitioner's motion hearing for a new trial. At trial in 1987 and at the hearing in 1990, Joplin testified that the prosecutor's office promised him nothing and he received no consideration for his testimony. It is only in his 1994 affidavit that he states that he received consideration from the prosecutor's office. Second, Joplin added new facts to his 1994 affidavit that had not been mentioned before. Not only was he promised a shortened prison term, but prosecutors and law enforcement officials were coaching him in preparation for his trial testimony and threatening him with an extended prison sentence and perjury charges if he failed to cooperate. Finally, Joplin's initial testimony was consistent with other substantial evidence in the trial record.
Having reviewed the affidavit, the Court finds Joplin's affidavit to be credible and grants habeas relief for the reasons set forth below. First, Joplin was suffering from a series of illnesses which resulted in a terminal prognosis, at the time he executed his affidavit. He was suffering from Liver Cirrhosis, Hepatitis C, Agent Orange poisoning and a double abdominal hernia, and was given 6-12 months to live. Pet., Ex. J, ¶ T. Joplin stated, during the last interview on July 2, 1994, that he had pneumonia and felt he had little time left. He claimed "a prison physician recently advised him his condition is terminal and he has approximately six to twelve months to live." Id. at ¶ V. Joplin has since passed away.
Joplin's 1994 affidavit was put together by Allen B. Woodside, a private investigator. He met with Joplin on three separate occasions while Joplin was incarcerated, on April 21, 1993, June 29, 1993, and July 2, 1994. At the end of the affidavit, Mr. Woodside states as follows:
Id. at 18. Also present during the interview was Bill Proctor, an investigative reporter with WXYZTV 7 News. The interview was professionally videotaped. Joplin's affidavit testimony spans 18 pages and is extremely detailed, naming officers and assistant prosecutors who were engaged in forcing Joplin to testify against Petitioner. Joplin admits that he started this series of events by contacting the prosecutor's office in the first place, but he did not realize exactly what he was getting himself into when he volunteered to be a jailhouse informant. Id. at ¶ J. His reason for coming forward at that time, seven years after the fact, was to clear his conscience. Id. at ¶ X. He states as follows:
Id. at ¶¶ X-Z.
It is well established that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnote omitted); accord Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is true whether the false testimony goes to the defendant's guilt or to a witness's credibility, and it matters not whether the prosecution directly elicits the false testimony or merely allows false testimony to go uncorrected. See Napue, 360 U.S. at 269-270, 79 S.Ct. 1173. It is equally well-established, however, that petitioner bears the burden of proving that the testimony amounted to perjury. As the Fourth Circuit has explained, "[a] defendant seeking to vacate a conviction based on perjured testimony must show that the testimony was, indeed, perjured. Mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony." United States v. Griley, 814 F.2d 967, 971 (4th Cir.1987); accord United States v. Verser, 916 F.2d 1268, 1271 (7th Cir.1990) ("[N]ot every testimonial inconsistency that goes uncorrected by the government establishes a constitutional violation."); Horton v. United States, 983 F.Supp. 650, 657 (E.D.Va.1997); United States v. Hearst, 424 F.Supp. 307, 318 (N.D.Cal.1976).
To succeed on this claim petitioner must show that: (1) the prosecutor presented evidence which was false; (2) the prosecutor knew or should have known
As the Sixth Circuit has explained, in order for a witness' perjury at trial to constitute a basis for habeas relief, the petitioner must show "prosecutorial involvement in the perjury." Burks v. Egeler, 512 F.2d 221, 229 (6th Cir. 1975); see also King v. Trippett, 192 F.3d 517, 522 (6th Cir.1999).
Here, assuming the truth of Joplin's affidavit and the hearsay assertions contained within that affidavit, there is no question that Joplin knowingly testified falsely at trial when he testified that Petitioner told him that Petitioner shot and killed Mr. Macklem, and that the prosecutors should have known his testimony was untruthful. As noted above, however, to be entitled to habeas relief on this claim Petitioner must also show "a reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103, 96 S.Ct. 2392. From a May 19, 1987 article in the "Times Herald," jurors from Petitioner's trial were interviewed and the article read in part as follows:
Pet., Ex. M.
Throughout Joplin's affidavit it is clear that he made it known on several occasions to the law enforcement officials and prosecutors that were "coaching" him and "manipulating" his testimony that he no longer desired to go through with testifying against Petitioner. However,
Id. at ¶ K. The Court finds that the totality of the circumstances surrounding the content of Joplin's affidavit and the effect his testimony had on the jury requires that habeas relief be granted on this issue.
Petitioner claims that his chief alibi witness, Michelle Woodworth, was harassed and threatened by Sergeant Bowns and Sergeant Hall in an effort to scare her into not testifying for Petitioner. Where such acts are committed by law enforcement officers, they are attributable to the prosecution. See United States v. Turner,
In support of this claim, Petitioner relies upon a report/complaint Ms. Woodworth filed with the police and her affidavit testimony. The report states as follows:
Pet. Ex. I. This report does not prove that Sergeant Bowns actions in attempting to obtain information from Ms. Woodworth rise to the level of prosecutorial misconduct. Ms. Woodworth's affidavit, although more detailed, including an allegation that she was threatened with perjury charges and the loss of her newborn child, is largely in line with what she told the police. Pet., Ex. G, pp. 4-5. As Petitioner suggests, an evidentiary hearing would have resolved this issue. However, as stated, the Court finds no merit in this claim.
Petitioner contends that the prosecutor impermissibly commented on his failure to testify. During closing argument, commenting on a conversation between Ms. Merrill and Petitioner which was overheard by Sergeant Hall, the prosecutor stated:
Tr. 5/14/87, pg. 2003. Petitioner simply states that the phrase "testimony from the defendant, without him getting on the witness stand" was an impermissible reference to the fact that he did not testify in his own defense.
The Court finds that the prosecutor's argument did not improperly comment on Petitioner's failure to testify. In order to conclude that the prosecutor's remarks amounted to an impermissible comment on petitioner's failure to testify, the Court "must find one of two things: that the prosecutor's manifest intention was to comment upon the accused's failure to testify or that the remark was of such a character that the jury would naturally and necessarily take it to be a comment of the failure of the accused to testify." United States v. Robinson, 651 F.2d 1188, 1197 (6th Cir.1981) (internal quotations omitted); accord Byrd v. Collins, 209 F.3d 486, 533-34 (6th Cir.2000); Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988).
Here, the crux of the prosecutor's argument was that, the jury was able to still hear statements made to Merrill by the Petitioner, presented as evidence, since these statements were made during a prior conversation which was overheard by Sergeant Hall. While the comment regarding "testimony from the defendant, without him getting on the witness stand" statement should not have been made, the prosecutor's comment does not appear to be manifestly intended to comment on petitioner's failure to testify, nor would it necessarily have been taken as such a comment by the jury.
Petitioner argues that the prosecutor made remarks about Ms. Merrill and the Petitioner with the purpose of inflaming the passions of the jury. "[T]he cardinal rule [is] that a prosecutor cannot make statements `calculated to incite the passions and prejudices of the jurors.'" Bates v. Bell, 402 F.3d 635, 642 (6th Cir. 2005), (citing Gall v. Parker, 231 F.3d 265, 315 (6th Cir.2000)). Inflammatory remarks are improper because they "invoke emotions which may cloud the jury's determination of [the defendant's] guilt." Martin v. Parker, 11 F.3d 613, 616 (6th Cir. 1993) (citing United States v. Payne, 2 F.3d 706, 716 (6th Cir.1993)).
Petitioner argues:
Pet. at 43-44.
A review of the characterization of Ms. Merrill as an uneducated, farm girl and of Petitioner as a savvy, charming, more sophisticated individual who uses more than one name to identify himself and who can be manipulative, is consistent with the trial testimony. Tr. 5/14/87, pp. 1948-1955. The Court does not find the prosecutor's remarks to be inflammatory, and denies habeas relief on this claim.
Petitioner makes the following claim of prosecutorial misconduct:
Pet. at 43. The "inflammatory items" were allowed over defense counsel's objection, initially to help the jurors understand Crystal Merrill's testimony. Tr. 4/29/87, pg. 387.
Prosecutorial misconduct must be so egregious as to deny petitioner a fundamentally fair trial before habeas corpus relief becomes available. See, e.g. Donnelly v. DeChristoforo, 416 U.S. 637, 643-645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). As outlined above, a prosecutor's remarks must be determined to be improper and flagrant in order to constitute prosecutorial misconduct. Petitioner argues that the prosecutor committed misconduct during the testimony of witnesses Heidi Bartel, Joplin, John Manalli, Thomas Forde, and Paul Demares. Petitioner argues that the witnesses were asked to describe him as frightening; a person who committed violent acts. The Court has reviewed the testimony of the aforementioned individuals. The prosecutor delved into the Petitioner's involvement with martial arts and questioned Bartel about Merrill's behavior after meeting Petitioner. None of the questions or answers rise to the level required for prosecutorial misconduct.
With respect to the "inflammatory items," it is significant that they were admitted into evidence by the trial court judge. "While framed as a prosecutorial misconduct challenge, it amounts in the end to a challenge to the trial court's decision to allow the introduction of this evidence. A prosecutor may rely in good faith on evidentiary rulings made by the state trial judge and make arguments in reliance those rulings." Webb v. Mitchell, 586 F.3d 383, 397. (internal citations omitted).
Respondent asserts that the habeas petition in this case should be time barred due to the lapses of time throughout the post-conviction proceedings in this matter. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one-year statute of limitations is applicable to an application of writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1) which provides that the one-year statute of limitations shall run from the latest of:
28 U.S.C. § 2244(d)(1). The Court agrees that under a strict application of the limitations statute to this case, the matter would be time barred. However, equitable tolling applies where the Petitioner makes a credible claim of actual innocence. Souter v. Jones, 395 F.3d 577, 601 (6th Cir. 2005). To be credible, a claim of actual innocence must be supported by "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see also Souter, 395 F.3d at 600 (explaining that the actual innocence exception for time-barred claims is limited to the rare and extraordinary case where a habeas petitioner presents new evidence which undermines the reviewing court's confidence in the outcome of the trial). Petitioner must demonstrate "that more likely than not any reasonable juror would have reasonable doubt" in light of new evidence. House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
A writ of habeas corpus may be granted "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The existence of new evidence, standing alone, is not a basis for granting the writ. As the Supreme Court has explained: "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); see also, id. at 404, 113 S.Ct. 853 (claim of actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred constitutional claim considered on the merits.") (emphasis added); Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 130 L.Ed.2d 808 (distinguishing, in part, Herrera because in this case the petitioner "accompanie[d] his claim of innocence with an assertion of constitutional error at trial."); Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ("Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus."), overruled in part on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). The newly discovered evidence, standing alone, provides no basis for habeas relief.
However, the Court finds that the evidence detailed above including the affidavits and documentation regarding defense counsel's substance abuse problem comes within the realm of newly discovered evidence and would undermine the reviewing court's confidence in the outcome of the trial. Therefore, Petitioner's habeas petition is equitably tolled, and the individual issues presented for review are not procedurally defaulted.
Petitioner claims that there was insufficient evidence to establish that he committed first-degree premeditated murder. Specifically, Petitioner contends that the prosecution failed to present legally sufficient evidence on the essential element
A federal habeas court has no power to grant habeas relief on the ground that a state conviction is against the great weight of the evidence. Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir.1985). A claim that a verdict went against the great weight of the evidence is not of constitutional dimension, for habeas corpus purposes, unless the record is so devoid of evidentiary support that a due process issue is raised. Griggs v. State of Kansas, 814 F.Supp. 60, 62 (D.Kan.1993). The test for habeas relief is not whether the verdict was against the great weight of the evidence, but whether there was any evidence to support it. United States ex rel. Victor v. Yeager, 330 F.Supp. 802, 806 (D.N.J. 1971). Despite the general prohibition against federal habeas corpus review of issues of state law, see Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (to the extent a petitioner's argument is based upon state law, the petitioner has failed to state a claim upon which habeas corpus relief may be granted), a claim that the evidence was insufficient to convict a petitioner is cognizable under 28 U.S.C. § 2254. Because the Due Process Clause "forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt," Fiore v. White, 531 U.S. 225, 228-229, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), "a state law question regarding the elements of the crime predicates the enforcement of [Petitioner's] federal constitutional right." Richey v. Mitchell, 395 F.3d 660, 672 (6th Cir.2005).
The Due Process Clause of the Fourteenth Amendment protects an accused in a criminal case against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The issue before this Court is whether sufficient evidence was presented to the jury from which a reasonable factfinder could find that the essential elements of the crime were proven beyond a reasonable doubt.
In resolving this issue, however, this Court is bound by two layers of deference to groups who may otherwise view the facts differently than the Court. See Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir. 2008). First, as with all sufficiency-of-the-evidence-challenges, this Court must determine whether when "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." Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In making this determination, the Court does not re-weigh the evidence, re-evaluate the credibility of witnesses, or substitute its judgment for that of the trier of fact. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.1993). Therefore, even though the Court "might have not voted to convict a defendant had [it] participated in jury deliberations, [it] must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009).
Second, if the Court finds that the evidence was insufficient to convict under Jackson, the Court must apply a second layer of AEDPA deference and determine whether the state appellate court was "objectively reasonable" in concluding that a rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. Saxton, 547 F.3d at 602. "The question `is not whether a federal court believes the state court's determination ... was incorrect but whether that determination was
The habeas court must review all of the evidence in the record and determine whether a reasonable jury could have found guilt beyond a reasonable doubt. "The evidence must afford a substantial basis from which a fact in issue can reasonably be inferred." Spalla v. Foltz, 615 F.Supp. 224, 227 (E.D.Mich.1985) (citing Brown v. Davis, 752 F.2d 1142, 1145 (6th Cir.1985)). As the Spalla court noted: "[t]he prosecution need not negate every reasonable theory consistent with innocence." Id. (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954)). In fact, "[a] conviction may be sustained based upon nothing more than circumstantial evidence." Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir.2008) (citing United States v. Kelley, 461 F.3d 817, 825 (6th Cir.2006) ("Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.")).
Here, Petitioner challenges the sufficiency of the evidence to support his first-degree premeditated-murder conviction, specifically arguing that the prosecution failed to prove beyond a reasonable doubt the element of premeditation. This Court must reject his challenge if, considering the evidence in the light most favorable to the prosecution, it concludes that a rational fact finder could have found that the elements of the crime were proven beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. In making this judgment, this Court must bear in mind that the beyond-a-reasonable-doubt standard, itself mandated by the Due Process Clause, requires the factfinder "to reach a subjective state of near certitude of the guilt of the accused [and] symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself." Id. at 315, 99 S.Ct. 2781.
Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court's application of the Jackson standard was reasonable. Johnson v. Hofbauer, 159 F.Supp.2d 582, 596 (E.D.Mich.2001). 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, 99 S.Ct. 2781. Under Michigan law, the elements of first-degree murder are that the actor have an actual intent to kill, and that the intent must have been the result of premeditation and deliberation, rather than of a split-second, impulsive decision. People v. Dykhouse, 418 Mich. 488, 495, 345 N.W.2d 150 (1984). In other words, first-degree, premeditated murder, the form of first-degree murder charged in this case, requires a finding that Petitioner committed a homicide with premeditation and deliberation. See People v. Morrin, 31 Mich.App. 301, 328, 187 N.W.2d 434 (1971). "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." Id. at 329, 187 N.W.2d 434.
The question before this Court in the instant case is whether the evidence, taken together and viewed in the light most favorable to the prosecution, could allow any rational trier of fact to conclude beyond a reasonable doubt that Petitioner committed the elements of first-degree murder, specifically premeditation. Warren v. Smith, 161 F.3d 358, 360 (6th Cir.1998). In conducting such an inquiry this Court
Under Michigan law, while the minimum time required to premeditate "is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" People v. Vail, 393 Mich. 460, 469, 227 N.W.2d 535 (1975). "[A]n opportunity for a `second look' may be merely seconds, minutes, or hours, dependant on the totality of the circumstances surrounding the killing." Johnson v. Hofbauer, 159 F.Supp.2d at 596 (citing People v. Berthiaume, 59 Mich.App. 451, 456, 229 N.W.2d 497 (1975)). "One cannot instantaneously premeditate a murder" in Michigan, and although premeditation and deliberation can be inferred from the circumstances of the homicide, they cannot be the product of speculation. People v. Plummer, 229 Mich.App. 293, 301, 305, 581 N.W.2d 753 (1998). "The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing. Premeditation may be established through evidence of the following factors: (1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4). the defendant's conduct after the homicide." Hofbauer, 159 F.Supp.2d at 596 (quoting People v. Anderson, 209 Mich.App. 527, 537, 531 N.W.2d 780 (1995)).
The Court finds that the elements of premeditation and deliberation were sufficiently established. The homicide appeared to have been carried out execution style, as the victim sustained a 12 gauge shotgun blast to his back and side area at close range. The prosecution produced several witnesses: (1) Crystal Merrill who testified about Petitioner's obsessive, jealous, controlling domineering nature; (2) Rene Gobeyn who testified that she saw Petitioner driving out of the college parking lot shortly after Mr. Macklem was shot with a telling expression on his face; (3) Philip Joplin, who testified that Petitioner confessed to killing Mr. Macklem while in a holding cell together in a very matter of fact manner
In summary, there was sufficient evidence presented for a rational trier of fact to conclude beyond a reasonable doubt that Petitioner actually killed and/or participated in the premeditated killing of Mr. Macklem. Habeas relief is not warranted on this claim.
Petitioner argues that he brought several issues to the attention of his appellate attorney for purposes of being raised on direct appeal. Because appellate
Id. at 754, 103 S.Ct. 3308.
Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir.1990). In fact, "the hallmark of effective appellate advocacy" is the "process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308). "Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of appellate counsel be overcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.2002).
Appellate counsel may deliver deficient performance and prejudice a defendant by omitting a "dead-bang winner," which is defined as an issue which was obvious from the trial record and would have resulted in a reversal on appeal. See Meade v. Lavigne, 265 F.Supp.2d 849, 870 (E.D.Mich.2003); Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir.1995) (finding failure to raise a "dead bang winner" claim on appeal was constitutionally ineffective assistance of appellate counsel even though other strong claims were raised); Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989) ("The threshold question is not whether trial counsel was inadequate but whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance. Counsel could be constitutionally deficient in omitting a `dead-bang winner' even while zealously pressing other strong (but unsuccessful) claims.").
Petitioner cites several claims that appellate counsel failed to raise on direct appeal: "(1) trial counsel's drug addiction and its effect on his performance; (2) trial counsel's conflicts of interest; (3) trial counsel's failure to call the most critically necessary defense witness and other important witnesses; (4) trial counsel's obstruction of the Petitioner's right to testify; (5) the police/prosecution threats designed to keep a critical witness from testifying; or (6) the perjurious testimony of Philip Joplin and intimidating tactics employed against him." Pet. pag. 33. Petitioner also states that appellate counsel should have raised the issue of Petitioner wearing prison garb in front of the jury as being improper, and trial court error in its issuance of an erroneous reasonable doubt jury instruction. When a habeas petitioner alleges that his counsel was ineffective for failing to raise an issue on appeal, the Court examines the merits of the omitted issue. U.S. v. Cook, 45 F.3d 388, 392-93 (10th Cir.1995); U.S. v. Dixon, 1 F.3d 1080, 1083 (10th Cir.1993).
First, the Court notes that appellate counsel filed a strong and comprehensive brief on direct appeal, raising ten issues. However, an appellate attorney's assistance of counsel can still be deemed ineffective
With respect to trial counsel's substance abuse problem while representing Petitioner at trial, and its affect on counsel's overall representation of Petitioner at trial, although the Court did not find that habeas relief was warranted on that claim, the issue is one which could have resulted in a reversal on appeal.
The Court finds that appellate counsel rendered ineffective assistance of counsel. Prevailing upon this claim provides the requisite cause to overcome Petitioner's procedural default as it relates to these claims. Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Burton v. Renico, 391 F.3d 764, 774 (6th Cir.2004).
Petitioner claims he is entitled to habeas relief because of the cumulative effect of the alleged errors in the state courts. The Michigan Court of Appeals rejected Petitioner's claim. People v. Freeman, No. 103276 at 5. The Sixth Circuit noted that the Supreme Court "has not held that distinct constitutional claims can be cumulated to grant habeas relief." Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.2002). Petitioner is not entitled to habeas relief on this claim.
Accordingly,
IT IS HEREBY ORDERED THAT PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS IS CONDITIONALLY GRANTED. UNLESS THE STATE TAKES ACTION TO AFFORD PETITIONER A NEW TRIAL WITHIN NINETY (90) DAYS OF THE DATE OF THIS OPINION IF NO APPEAL IS TAKEN, OTHERWISE, WITHIN NINETY (90) DAYS AFTER ANY APPELLATE AVENUES ARE EXHAUSTED AND A MANDATE ISSUED, PETITIONER MAY APPLY FOR A WRIT ORDERING RESPONDENT TO RELEASE HIM FROM CUSTODY FORTHWITH.
IT IS FURTHER ORDERED that Respondent serve a copy of this Opinion and Order to the appropriate State Court and Prosecuting Attorney within fourteen (14) days' receipt of this Opinion and Order. Respondent must file a proof of service with the Court.
IT IS SO ORDERED.
