DENISE PAGE HOOD, District Judge.
Michigan state prisoner Darrett King has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, challenges his convictions for two counts assault with intent to murder, possession of a firearm during the commission of a felony, and felon in possession of a firearm. Respondent argues that the petition should be denied because the claims are procedurally defaulted and/or meritless. For the reasons discussed, the Court denies the petition.
The Michigan Court of Appeals provided a factual overview of the case, which is presumed correct on habeas review, see Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D. Mich. 2001), aff'd. 41 F. App'x 730 (6th Cir. 2002), as follows:
People v. King, No. 291037, 2010 WL 5373865 (Mich. Ct. App. Dec. 28, 2010).
Petitioner was convicted by a Wayne County Circuit Court jury of two counts of assault with intent to murder, felony firearm, second conviction, and felon in possession of a firearm. On February 4, 2009, he was sentenced to 171 to 300 months in prison for each count of assault with intent to murder, two to five years in prison for the felon-inpossession conviction, and five years in prison for the felon-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these claims:
The Michigan Court of Appeals affirmed Petitioner's convictions. People v. King, No. 291037, 2010 WL 5373865 (Mich. Ct. App. Dec. 28, 2010).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. King, 489 Mich. 935 (2011).
Petitioner then filed the pending habeas petition. He raises the same claims raised in state court.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering an application for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state court decision on a federal issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or it amounted to "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998). Under that review standard, mere error by the state court does not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996) (stating that "[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous").
The Supreme Court has explained the proper application of the "contrary to" clause as follows:
Williams, 529 U.S. at 405-06.
The Supreme Court has held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court has explained that an unreasonable application of federal law is different from an incorrect application of federal law. Under that language, "a federal habeas court may grant the writ 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." Williams, 529 U.S. at 413. The Supreme Court has continued to emphasize the limited nature of this review. In its recent unanimous decision in Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the Court reiterated that the AEDPA requires federal habeas courts to review state court decisions with "deference and latitude," and "[a] state court's determination that a claim lacks merit precludes habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 785-86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In his first habeas claim, Petitioner argues that insufficient evidence was presented to establish beyond a reasonable doubt his identity as the shooter.
"[T]he 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). On direct review, review of a sufficiency of the evidence challenge must focus on 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." Jackson, 443 U.S. at 319 (emphasis in original). In the habeas context, "[t]he Jackson standard must be applied `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
"Two layers of deference apply to habeas claims challenging evidentiary sufficiency." McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court "must determine whether, viewing the trial testimony and exhibits 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." Brown, 567 F.3d at 205, citing Jackson, 443 U.S. at 319). Second, if the Court were "to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id.
Under Michigan law, the elements of "assault with intent to commit murder are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v. Plummer, 581 N.W.2d 753, 759 (1998). The actual-intent-to-kill element does not need to be proved by "direct, positive, or independent evidence." People v. Taylor, 422 Mich. 554, 375 N.W.2d 1, 7 (1985) (internal quotation marks omitted). Rather, the intent may be shown by inference from any fact in evidence, provided that the inference is reasonable. Id. at 8. "The elements of felon in possession of a firearm in Michigan are (1) that the defendant was convicted of a felony, (2) that the defendant possessed a firearm, and (3) that at the time of possession less than three or five years, depending on the underlying felony, has passed since the defendant had completed his term of incarceration, satisfied all conditions of probation and parole, and paid all fines." Parker v. Renico, 450 F.Supp.2d 727, 733 (E.D. Mich. 2006) (Cohn, J.), aff'd, 506 F.3d 444 (6th Cir.2007). "The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony." People v. Avant, 235 Mich.App. 499, 504 (1999).
The Michigan Court of Appeals denied Petitioner's sufficiency of the evidence claim, reasoning as follows:
King, 2010 WL 5373865 at *1-2.
When assessing a sufficiency of the evidence claim on habeas review, the Court may not re-weigh evidence or redetermine witness credibility. Marshall, 459 U.S. at 434. Assuming the jury found El-Amin's testimony that he saw the man who shot at him get chased and apprehended by a police officer and Officer Neville's testimony that Petitioner was one of the two people he saw running down the street and firing his weapon to be credible, this testimony was sufficient for a rational trier of fact to find the elements of each of the crimes of conviction. The Michigan Court of Appeals' decision was not an unreasonable application of Jackson.
Next, Petitioner argues that his right to due process was violated because the police failed to preserve a gunshot residue test kit.
The Due Process Clause requires that the State disclose to criminal defendants "evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed." California v. Trombetta, 467 U.S. 479, 485 (1984). "Separate tests are applied to determine whether the government's failure to preserve evidence rises to the level of a due process violation in cases where material exculpatory evidence is not accessible, see Trombetta, 467 U.S. at 489, versus cases where `potentially useful' evidence is not accessible. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L. Ed.2d 281 (1988)." United States v. Wright, 260 F.3d 568, 570-71 (6th Cir. 2001). A defendant's due process rights are violated where material exculpatory evidence is not preserved. Trombetta, 467 U.S. at 489. For evidence to meet the standard of constitutional materiality, it "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488-89. The destruction of material exculpatory evidence violates due process regardless of whether the government acted in bad faith. See id. at 488; Youngblood, 488 U.S. at 57.
However, "the Due Process Clause requires a different result when . . . deal[ing] with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Youngblood, 488 U.S. at 56. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58. A habeas petitioner has the burden of establishing that the police acted in bad faith in failing to preserve potentially exculpatory evidence. See Malcum v. Burt, 276 F.Supp.2d 664, 683 (E.D. Mich. 2003).
The last state court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, held that Petitioner's rights were not violated because the evidence was not preserved. The state court applied the standard articulated in Youngblood and held that Petitioner failed to show that the police acted in bad faith or that the evidence was exculpatory. The Court of Appeals reasoned:
King, 2010 WL 5373865 at *2.
This decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Petitioner has not shown that the gunshot residue kit would have been exculpatory. The record is devoid of evidence that the police or prosecution authorities acted in bad faith — a necessary requirement to establish a constitutional violation where the destroyed evidence was only potentially useful to the defense. Given such circumstances, Petitioner has failed to establish a constitutional violation. Habeas relief is not warranted.
Petitioner challenges the trial court's decision allowing El-Amin's in-court identification of Petitioner. Petitioner argues that it was only after El-Amin was told he identified the wrong person that he then identified Petitioner as the shooter. Respondent argues that this claim is procedurally defaulted.
Federal habeas relief is precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained state court judgment should be used to make this determination. See Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
The last state court to address this claim, the Michigan Court of Appeals, held that the issue was not preserved for review because Petitioner acknowledged that the testimony was admissible. The Michigan Court of Appeals' holding rested upon a recognized, independent and adequate state law ground for refusing to review alleged trial errors. See People v. Carter, 462 Mich. 206 (2000). A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).
Petitioner does not allege cause to excuse the default of his defaulted claims. Habeas review is therefore barred unless he can show that failure to consider this claim would result in a fundamental miscarriage of justice. The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995). A valid claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence — that was not presented at trial." Id. at 324. "The Schlup standard is demanding and permits review only in the `extraordinary' case." House v. Bell, 547 U.S. 518, 538 (2006) (citation omitted). To make a showing of actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt." Id. at 327. Petitioner fails to present new, reliable evidence in light of which no reasonable juror would have found him guilty. Accordingly, this claim is procedurally defaulted.
Petitioner argues that improper jury instructions denied him his right to a fair trial. First, he argues that the trial court improperly denied his request for an adverse inference instruction regarding the destruction of the gunshot residue kit. Second, he argues that the improperly shifted the burden of proof on the intent element of assault with intent to commit murder.
Generally, claims of erroneous jury instructions are not cognizable in federal habeas review unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). It is not enough to show that the instruction was incorrect under state law. Estelle v. McGuire, 502 U.S. at 71-72. The instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Id. at 147. "To warrant habeas relief, jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair." Doan v. Carter, 548 F.3d 449, 455 (6th Cir.2008) (quoting Austin v. Bell, 126 F.3d 843, 846-47 (6th Cir.1997) (internal quotation marks omitted)). "When a court makes an error in instructing the jury, the proper inquiry is `whether there is a reasonable likelihood that the jury' applied the instruction `in an unconstitutional manner.'" Id. at 455 (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)).
Under Michigan law, an adverse inference instruction based on police destruction of evidence is appropriate only when the police acted in bad faith. Bailey v. Smith, 492 F. App'x 619 (6th Cir. July 24, 2012); People v. Davis, 199 Mich.App. 515 (Mich. Ct. App. 1993). Here, the Michigan Court of Appeals held that, because no bad faith was shown, the trial court was correct in denying the requested adverse inference instruction. Petitioner has not shown that the finding that police did not act in bad faith was unreasonable or clearly erroneous and has failed to show that the absence of an adverse inference instruction so infected the entire trial as to violate due process.
Next, Petitioner argues that the jury instructions improperly shifted the burden of proof to the defense for the intent element of assault with intent to murder. Specifically, Petitioner objects to the underlined portion of the following instruction:
Tr., 2/3/09 at 109.
The Michigan Court of Appeals held:
King, 2010 WL 5373865 at *4.
In a criminal trial, "it is an elementary principle of due process that every element of the crime must be proven by the prosecution beyond a reasonable doubt." Caldwell v. Bell, 288 F.3d 838, 841 (6th Cir. 2002), citing Sandstrom v. Montana, 442 U.S. 510, 520 (1979). An instruction that tells a jury to presume any element of a crime without evidence is unconstitutional, because "the Fourteenth Amendment's guarantees prohibit a State from shifting to the defendant the burden of disproving an element of the crime charged." Sandstrom, 442 U.S. at 527 (Rehnquist, J., concurring). However, a permissive inference does not suffer from a similar constitutional infirmity. "A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved." Francis v. Franklin, 471 U.S. 307, 314 (1985).
In this case, the challenged language created only a permissive inference. Therefore, the Michigan Court of Appeals conclusion that the instruction did not improperly shift the burden of proof was not an unreasonable application of Sandstrom.
Finally, Petitioner asserts several ways in which counsel was allegedly ineffective. Specifically, Petitioner alleges counsel was ineffective in: (i) failing to move to suppress references to uncharged bad acts or other investigations by Petitioner by police officer Michael Carlisle; (ii) failing to move for retesting of gunshot residue evidence and suppression of ballistics evidence; (iii) failing to move to suppress evidence of Petitioner's prior felony convictions; (iv) failing to object to the questioning of Petitioner on cross-examination regarding his involvement in an unrelated, unsolved case; and (v) failing to object to jury instructions.
The two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), governs claims of ineffective assistance of counsel. Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). To show a violation of the Sixth Amendment right to effective assistance of counsel, a petitioner must establish that his attorney's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
An attorney's performance is deficient if "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003).
An attorney's deficient performance is prejudicial if "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. The petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Unless the petitioner demonstrates both deficient performance and prejudice, "it cannot be said that the conviction [or sentence] resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
"Surmounting Strickland's high bar is never an easy task," Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1485 (2010), as the Supreme Court explained in Harrington:
131 S. Ct. at 788.
First, Petitioner argues that counsel was ineffective in failing to move to suppress any testimony from police officer Michael Carlisle related to another homicide investigation. Officer Carlisle testified that he became interested in Petitioner when investigating the unsolved murder of Tamara Green, an exotic dancer who had reportedly been murdered after dancing at a rumored party at Detroit's mayoral mansion. Officer Carlisle considered King a suspect in that murder. The Michigan Court of Appeals denied this claim, finding:
King, 2010 WL 5373865 at *5.
In considering whether counsel's failure to move to suppress this testimony fell within the "wide range of reasonable professional assistance," the Court is mindful that there are "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. The fact that Petitioner's defense was ultimately unsuccessful does not render counsel's performance ineffective. Hodges, 711 F.3d at 608-09. Defense counsel's strategy was a reasonable attempt to provide a motive for the police's focus on Petitioner. Thus, the state court's conclusion that defense counsel was not ineffective was not contrary to or an unreasonable application of Strickland. Because Petitioner fails to satisfy Strickland's first prong, the Court need not consider the prejudice prong. Id. at 697. See also Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001) ("Strickland specifically holds that the two prongs of its test need not be applied in order or in totality.").
Next, Petitioner argues that counsel was ineffective for failing to move for a retesting of the gunshot residue evidence and suppression of the ballistics evidence. The Michigan Court of Appeals held that a request to retest the gunshot residue evidence would have been futile because the evidence was destroyed. The state court also held that an objection to the chain of custody of the ballistics evidence would have been futile because the testimony showed no problems with the chain of custody. Counsel cannot be deemed ineffective for failing to raise a meritless objection. See Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir.2006). Therefore, the state court's opinion was not a reasonable application of Strickland.
Petitioner argues that counsel was also ineffective in failing to object to the prosecutor's questioning Petitioner regarding his prior felony convictions. The Michigan Court of Appeals held that, even assuming that the questions were improper, Petitioner was not prejudiced by counsel's failure to object. The reference to Petitioner's prior convictions was very brief and was not used by the prosecutor to imply Petitioner's guilt in this case. Therefore, the Court finds that the state court's opinion was not inconsistent with clearly established Supreme Court precedent. Id.
Petitioner argues that counsel was further ineffective in failing to object when the prosecutor cross-examined him regarding his involvement in the unrelated, unsolved murder of Tamara Green. The Michigan Court of Appeals held that counsel was not ineffective in failing to object because the testimony was properly elicited in an attempt to impeach Petitioner's credibility. On habeas review, a state court will not second-guess a state court on the admissibility of evidence. See Davis v. Morgan, 89 F. App'x 932, 936 (6th Cir. 2003). Because the state court held that this testimony was properly elicited, Petitioner cannot show that his attorney was ineffective in failing to object to its admission.
Finally, Petitioner argues that counsel was ineffective in failing to object to jury instructions which, he claims, shifted the burden of proof. As discussed above, the jury instructions were not improper. Therefore, counsel was not ineffective in failing to object.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). A petitioner must show "that reasonable jurists could debate whether (or, for that matter, 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, 484 (2000) (citation omitted). In this case, the Court concludes that reasonable jurists would not debate the conclusion that the petition fails to state a claim upon which habeas corpus relief should be granted. Therefore, the Court will deny a certificate of appealability.
For the foregoing reasons, the petition for a writ of habeas corpus and a certificate of appealability are
