OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY

ARTHUR J. TARNOW, Senior District Judge.

Petitioner, Kenneth Joseph Mazurek, filed this action under 28 U.S.C. § 2254. He was convicted after a jury trial in the Arenac Circuit Court of involuntary manslaughter with a motor vehicle. MICH. COMP. LAWS 7750.321. The state trial court sentenced Petitioner as a third-time habitual felony offender to a prison term of fourteen years and three months to thirty years, and he is now imprisoned at the Saginaw Correctional Facility. Petitioner claims in his habeas application that: (1) he was erroneously prevented from presenting defense evidence; (2) the prosecutor committed misconduct; and (3) the sentencing guidelines were incorrectly scored. For the reasons that follow, the petition will be denied.

I. Factual Background

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. Mazurek, 2008 Mich. App. LEXIS 1111, *1-2 (Mich. Ct. App. May 29, 2008).

Following his jury trial in which this evidence was presented, Petitioner was convicted of involuntary manslaughter with a motor vehicle. Petitioner filed a motion for a new trial. He asserted that the trial court erroneously excluded defense witnesses who would have testified that Petitioner suffered from a post-crash head injury. According to Petitioner, this evidence would have rebutted the prosecutor's argument that his flight from the scene of the accident indicted consciousness of guilt. At the hearing on the motion for new trial, Petitioner's appellate counsel requested to present these witnesses' testimony. The trial court denied the request to present the testimony but accepted the uncalled witnesses' affidavits. The trial court then denied Petitioner's motion, finding that the proposed testimony was irrelevant.

Petitioner thereafter filed his claim of appeal in the Michigan Court of Appeals, raising the following issues:

On May 29, 2008, the Michigan Court of Appeals affirmed Petitioner's conviction. Mazurek, supra.

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied defendant's application for leave to appeal on the ground that it was "not persuaded that the questions presented should be reviewed by this Court." People v. Mazurek, 482 Mich. 1033 (2008) (table).

Petitioner has now commenced this action, pursuant to 28 U.S.C. § 2254, raising the same claims he raised in the State courts.

II. Standard of Review

28 U.S.C. § 2254(d) bars habeas relief for claims adjudicated on the merits in state court unless the state court adjudication runs contrary to clearly established Supreme Court law, or if it results from an unreasonable application of that law or an unreasonable determination of the facts. 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. Rather, that application must also be unreasonable." Id. at 410-11.

III. Discussion

A. Exclusion of Defense Witnesses

Petitioner's first claim asserts that the trial court's ruling prohibiting him from calling defense witnesses to testify about his condition after the accident violated his right to present a defense. Respondent contends that the Michigan Court of Appeals reasonably rejected this claim on the merits.

Federal law is clear on the right to present a defense. 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); Crane v. Kentucky, 476 U.S. 683, 690 (1986). 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 gives trial court judges wide latitude to exclude certain evidence. Id. (quoting Delaware, 475 U.S. at 679). A violation of the right to present a defense is not established by showing merely that the trial court excluded evidence relevant to a defense. Rather, a petitioner must show that the exclusion of evidence "significantly undermined fundamental elements of the accused's defense." United States v. Scheffer, 523 U.S. 303, 315 (1998).

The Michigan Court of Appeals rejected Petitioner's claim as follows:

Mazurek, 2008 Mich. App. LEXIS 1111, *2-7.

This Court agrees with the state appellate court that the trial court erred in excluding the defense evidence. The prosecutor argued that Petitioner fled from the scene following the accident and that this showed that he knew he had been driving recklessly and was conscious of his guilt. Petitioner wished to rebut this argument by presenting several witnesses to testify that Petitioner suffered from a head injured and was disoriented and confused. This evidence, if believed, would have suggested that Petitioner did not flee from the scene but wandered away from it due to his injuries.

The question here is not whether error occurred—because it did—it is whether the error had a substantial impact on the result of Petitioner's trial. In Fry v. Pliler, 551 U.S. 112, 121-22 (2007), the Supreme Court held that, "in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the `harmless beyond a reasonable doubt' standard set forth in Chapman v. California, 386 U.S. 18 (1967)." 551 U.S. at 121-22 (citations omitted). Under the Brecht standard, "an error is harmless unless it `had substantial and injurious effect or influence in determining the jury's verdict.'" Fry, 511 U.S. at 116 (quoting Brecht, 507 U.S. at 631).

Here, the error in excluding the defense evidence did not have a substantial and injurious effect in determining the jury's verdict. To demonstrate that Petitioner was guilty of involuntary manslaughter, the prosecutor was required to prove that Petitioner committed an unlawful act with intent to injure, or committed an act in a grossly negligent manner proximately causing death. MICH. COMP. LAWS § 750.321(c); People v. Datema, 448 Mich. 585 (1995). Gross negligence requires: (1) knowledge of a situation requiring the exercise of ordinary care to avoid injury to another; (2) the ability to avoid the resulting harm by ordinary care; and (3) the omission to use such care to avoid the threatened danger when to an ordinary mind it must have appeared that the omission will likely result in the injury. People v. McCoy, 223 Mich.App. 500, 503 (1997).

The evidence showed that Petitioner was drinking before the accident. A witness who was with Petitioner that evening testified that Petitioner was drinking before the party, was drinking in the car on the way to the party, had a beer in his hand the whole time he was at the party, and had at least one mixed drink later at the bar. Petitioner's alcohol use on the evening in question was corroborated by other witnesses as well.

The surviving victim testified that Petitioner's car started weaving as soon as he left the bar. She testified that Petitioner was swerving in and out of lanes as he drove down the highway towards Standish. She begged for Petitioner to let her drive, but he refused. The deceased passenger also yelled at Petitioner to slow down just before the car approached the final curve into Standish.

An accident reconstructionist and an eyewitness at the scene of the accident testified that Petitioner was driving between 65 and 70 mph in a 35 mph zone as he as he tried to negotiate the curve. The eyewitness testified that he could see that Petitioner would not be able to make the curve at such a high rate of speed. He then saw the car hit a guardrail and flip over two times.

Given this evidence, the elements of involuntary manslaughter were overwhelmingly met. Petitioner knew he was driving in a dangerous manner because he had been swerving in and out of lanes and both of his passengers begged him to stop. He knew he was having a difficult time driving his car as soon as he left the bar, and he admitted that he had driven down this highway and taken the curve into Standish thousands of times before. He had the ability to avoid the crash by exercising ordinary care — either by stopping to let someone else drive or by simply slowing down himself. Yet Petitioner failed to exercise that ordinary care when it must have been apparent to him that he was likely to crash and cause injury.

While Petitioner's post-accident conduct was used by the prosecutor to suggest that Petitioner was conscious of his guilt, it was not a critical factor in the trial. The virtually unchallenged evidence showed that Petitioner was operating his vehicle in a grossly negligent manner, resulting in the death of the victim. Moreover, the excluded evidence consisted of the lay opinion testimony of Petitioner's friends. They were not at the scene and could not have testified in a convincing way that Petitioner wandered away from the scene as a result of his injuries and not because he fled.

In light of the overwhelming evidence of Petitioner's guilt, and the relatively low exculpatory value of the excluded evidence, Petitioner has not demonstrated that the error in excluding the evidence had a substantial impact on the result of his trial. Petitioner's first claim is therefore denied.

B. Prosecutorial Misconduct

Petitioner's second claim asserts that the prosecutor committed acts of misconduct that rendered his trial fundamentally unfair. These claims do not have merit.

To prevail on a claim of prosecutorial misconduct, a petitioner must show that the alleged misconduct infected his trial with such unfairness as to make the resulting conviction a denial of due process. Byrd v. Collins, 209 F. 3d at 529 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986))(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Courts must keep in mind that "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). "Therefore, even if the prosecutor's conduct was `undesirable or even universally condemned,' Darden, 477 U.S. at 181 (quotation marks and citations omitted), it does not constitute a due process violation unless the conduct was `so egregious so as to render the entire trial fundamentally unfair.'" Byrd, 209 F. 3d at 529 (end citations omitted). Indeed, "[t]he Supreme Court has clearly indicated that the state courts have substantial breathing room when considering prosecutorial misconduct claims because `constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.'" Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006)(quoting Donnelly, 416 U.S. at 645). If a prosecutor's statements were neither individually nor collectively prejudicial to Petitioner, then a state court decision rejecting the claim is reasonable and survives § 2254(d) review. Batey v. Scutt, 2012 U.S. App. LEXIS 2710 (6th Cir. 2012). Finally, in deciding whether prosecutorial misconduct mandates that habeas relief be granted, a federal court must apply the harmless error standard. See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).

The Michigan Court of Appeals denied Petitioner's claim as follows:

Mazurek, 2008 Mich. App. LEXIS 1111, *7-11.

This decision did not involve an unreasonable application of the clearly established constitutional standard. First, the state court correctly found that the prosecutor's elicitation of witnesses' opinion as to whether Petitioner was driving dangerously was proper. The state court found that the lay opinion evidence was admissible as a matter of state law. Because the state appellate court found that the testimony was admissible, the prosecutor's actions could not have amounted to misconduct. See Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir. 1997). As the Sixth Circuit explained, "[a] prosecutor may rely in good faith on evidentiary rulings made by the state trial judge and make arguments in reliance on those rulings." Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008).

The same thing holds true with Petitioner's next allegation. The prosecutor was permitted under state law to inquire from Petitioner whether his two prior convictions involved different criminal transactions. There was nothing wrong with the prosecutor seeking this clarification of Petitioner's direct examination testimony.

The state appellate court reasonably interpreted the record with respect to the claim that Petitioner was asked to comment of the credibility of prosecution witnesses. Although the prosecutor used inflammatory terms like "lie" and "conspiracy" regarding Petitioner's view of the prosecution witnesses, the questions can be reasonably interpreted as an attempt by the prosecutor to ferret-out the parts of the prosecution witnesses' testimony that Petitioner disputed. While the language used by the prosecutor crossed the line in the view of this Court, the rejection of the claim by the Michigan Court of Appeals was not objectively unreasonable.

Next, the prosecutor did not incorrectly characterize the testimony of witnesses regarding his consumption of alcohol. A prosecutor may argue reasonable inferences from the record. Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). The prosecutor's description of Petitioner and the deceased victim as "pounding down beers" was a reasonable inference drawn from the testimony.

The prosecutor's statement that defense counsel's reference to the deceased victim being Petitioner's friend as a "red herring" was not improper. See United States v. Bernard, 299 F.3d 467, 487-88 (5th Cir. 2002); United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992). The argument was a response to the improper suggestion by defense counsel that the case should be decided based on sympathy for the fact that Petitioner lost his friend in the accident.

Nor did the prosecutor commit misconduct by asking the jury not to convict Petitioner of the lesser offense of negligent homicide. The prosecutor characterized negligent homicide as "a much lesser offense" that would be "an injustice to the system." But he did not mention the difference in penalties or suggest that the lesser verdict should be avoided for an improper reason. Rather, the prosecutor responded to the suggestion that jury should convict Petitioner of the lesser offense out of sympathy for him. The argument focused on the differences between gross negligence and ordinary negligence and why the prosecutor believed Petitioner's actions amounted to gross negligence.

Lastly, the Court finds that it was improper for the prosecutor to assert that Petitioner had failed to provide any evidence to corroborate his claim that he suffered from a head injury. As the prosecutor well knew, Petitioner desired to offer such corroborating evidence in the form of lay opinion testimony but was prevented from doing so precisely because the prosecutor objected to the introduction of that testimony. That said, this improper argument did not render Petitioner's trial unfair for the reasons stated above. The evidence of Petitioner's guilt was overwhelming and the precluded evidence—which allowed the improper argument to be made—would have done little to counter the argument that Petitioner fled the scene.

Accordingly, Petitioner's second claim does not support the grant of habeas relief.

B. Sentencing Guidelines

Petitioner's claim that the state trial court incorrectly scored or calculated his sentencing guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal habeas review, because it is basically a state law claim. See Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); See also See Whitfield v. Martin, 157 F.Supp.2d 758, 762 (E.D. Mich. 2001). "Petitioner has no state-created interest in having the Michigan Sentencing Guidelines applied rigidly in determining his sentence." See Mitchell v. Vasbinder, 644 F.Supp.2d 846, 867 (E.D. Mich. 2009)(citing Shanks v. Wolfenbarger, 387 F.Supp.2d 740, 752 (E.D. Mich. 2005). "[I]n short, petitioner had no federal constitutional right to be sentenced within Michigan's guideline minimum sentence recommendations." Doyle v. Scutt, 347 F.Supp.2d 474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his guideline score or in departing above his sentencing guidelines range alone would not merit habeas relief. Id.

Petitioner's claim that the trial court improperly considered his refusal to admit guilt is likewise without merit. A defendant's Fifth Amendment right against self-incrimination "is fulfilled only when a criminal defendant is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.'" Estelle v. Smith, 451 U.S. 454, 468 (1981)(quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)). In Mitchell v. United States, 526 U.S. 314, 328-30 (1999), the United States Supreme Court extended the right against self-incrimination to sentencing and held that the Fifth Amendment right against self-incrimination prevents a sentencing court from drawing negative inferences from a defendant's silence in determining the facts relating to the circumstances and details of the crime. It is, however, permissible for a judge to consider a defendant's lack of remorse at sentencing, See e.g. United States v. Kennedy, 499 F.3d 547, 552 (6th Cir. 2007).

Here, the sentencing judge did not use Petitioner's silence against him in determining sentence. Rather, the court noted that Petitioner continued to blame the accident on the icy road conditions and the actions of the victims. It also noted that Petitioner had previously been placed on probation but could not follow the rules. The trial court's comments, taken in context, suggest that the court was refuting Petitioner's excuses and commenting upon his lack of remorse and potential for rehabilitation, rather than penalizing him for any refusal to admit guilt at the time of trial or sentencing. See Paluskas v. Bock, 410 F.Supp.2d 602, 615 (E.D. Mich. 2006) (denying habeas relief on similar claim).

Petitioner's third claim is therefore without merit.

IV. 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. A federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).

The Court grants Petitioner a Certificate of Appealability with respect to all of his claims because he has made a substantial showing of the denial of a federal constitutional right. Jurists of reason could find this Court's resolution of Petitioner's claims to be debatable or that he should receive encouragement to proceed further. Siebert v. Jackson, 205 F.Supp.2d 727, 735 (E.D. Mich. 2002).

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability and permission to proceed on appeal in forma pauperis is GRANTED.