PAUL J. KOMIVES, Magistrate Judge.
1. Petitioner Jason Matthew Meyer is a state prisoner, currently confined at the Gus Harrison Correctional Facility in Adrian, Michigan.
2. On March 26, 2010, petitioner was convicted of domestic violence, MICH. COMP. LAWS § 750.81(2); two counts of resisting or obstructing a police officer, MICH. COMP. LAWS § 750.81d(1); two counts of malicious destruction of property under $200, MICH. COMP. LAWS § 750.377a(1)(d); first degree home invasion, MICH. COMP. LAWS § 750.110a(2); felonious assault, MICH. COMP. LAWS § 750.82; and aggravated stalking, MICH. COMP. LAWS § 750.411i, following a jury trial in the Saginaw County Circuit Court. On June 1, 2010, he was sentenced to concurrent terms 93 days' imprisonment on each of the domestic violence and malicious destruction of property convictions, one year's imprisonment on each of the resisting or obstruction convictions, 88 months' to 20 years' imprisonment on the home invasion conviction, 1½-4 years' imprisonment on the felonious assault conviction, and 2-5 years' imprisonment on the stalking conviction.
3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through appointed counsel, the following claims:
Petitioner subsequently retained new appellate counsel, who filed a supplemental brief raising four additional claims:
The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Meyer, No. 300025, 2011 WL 5454754 (Mich. Ct. App. Nov. 10, 2011) (per curiam).
4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Meyer, 491 Mich. 919, 812 N.W.2d 730 (2012).
5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on May 23, 2013. As grounds for the writ of habeas corpus, he raises the seven claims that he raised in the state courts.
6. Respondent filed his answer on December 3, 2013. He contends that petitioner's first and fourth claims are barred by petitioner's procedural default in the state courts, and that all of his claims are without merit.
Petitioner was charged with numerous crimes in four separate criminal cases, all arising from interactions between petitioner and his former girlfriend, Alyssa Ashley, or with the police. The evidence adduced at trial was best summarized in respondent's answer:
Answer, at 5-12; see also, Def.-Appellant's Br. on Appeal, in People v. Meyer, No. 300025 (Mich. Ct. App.), at 1-5; Def.-Appellant's Supp. Br. on Appeal, at 7-15.
Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing:
28 U.S.C. § 2254(d).
"[T]he `contrary to' and `unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). "A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S. at 694. "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409. As the Supreme Court has explained, the standard for relief under § 2254(d) "is difficult to meet, [and] that is because it was meant to be." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). As the Court explained, "[s]ection 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)). Thus, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
By its terms, § 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with "clearly established federal law as determined by the Supreme Court." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. Further, the "phrase `refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.' In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412). The relevant "clearly established law" is the law that existed at the time of the last state court decision to issue a reasoned decision on the claim, see Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011), and in evaluating the reasonableness of that decision a federal habeas court is limited to the record that was before the state court at the time of its decision, see Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99 (2011).
Although "clearly established Federal law as determined by the Supreme Court" is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.).
In his fifth claim, petitioner contends that the verdict on the home invasion charge was against the weight of the evidence. The Court should conclude that petitioner is not entitled to habeas relief on this claim.
To the extent that petitioner argues that he is entitled to habeas relief because the jury's verdict was against the great weight of the evidence, his claim is not cognizable. It is well established that habeas review is not available to correct errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (a federal court on habeas review "ha[s] no authority to review a state's application of its own laws."). The federal constitution requires only that the evidence be sufficient to sustain the conviction under the standard established in Jackson v. Virginia, infra. Where the evidence is sufficient as a matter of due process, a claim that the verdict was against the weight of the evidence presents a state law issue which is not cognizable on habeas review. See Douglas v. Hendricks, 236 F.Supp.2d 412, 435-36 (D.N.J. 2002); Dell v. Straub, 194 F.Supp.2d 629, 648 (E.D. Mich. 2002) (Friedman, J.); Correa v. Duncan, 172 F.Supp.2d 378, 381 (E.D.N.Y. 2001); cf. Tibbs v. Florida, 457 U.S. 31, 44 (1982) (noting in a different context that "trial and appellate judges commonly distinguish between weight and sufficiency of the evidence."). In short, "[a] federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight of the evidence.'" Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985).
Thus, the only question here is whether the evidence was constitutionally sufficient to prove all of the elements of the offense for which petitioner was convicted beyond a reasonable doubt.
To the extent petitioner is attempting to assert a sufficiency of the evidence claim, his claim is without merit.
The Due Process Clause of the Fourteenth Amendment "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). Under the pre-AEDPA standard for habeas review of sufficiency of the evidence challenges, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Reviewing courts must view the evidence, draw inferences and resolve conflicting inferences from the record in favor of the prosecution. "[I]t is the responsibility of the jury-not the court-to decide what conclusions should be drawn from the evidence admitted at trial." Cavazos v. Smith, 565 U.S. 1, ___, 132 S.Ct. 2, 4 (2011) (per curiam). The Jackson standard "leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors `draw reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam) (quoting Jackson, 443 U.S. at 319). Likewise, a reviewing court "do[es] not make credibility determinations in evaluating the sufficiency of the evidence." United State v. Owusu, 199 F.3d 329, 344 (6th Cir. 2000); see also, United States v. Bailey, 444 U.S. 394, 424-25 (1980) ("It is for [jurors] and not for appellate courts to say that a particular witness spoke the truth or fabricated a cock-and-bull story."). It is the job of the jury, not this Court sitting on habeas review, to resolve conflicts in the evidence, and this Court must presume that the jury resolved those conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326. As the Court has explained, "the only question under Jackson is whether [the jury's finding] was so insupportable as to fall below the threshold of bare rationality." Coleman, 132 S. Ct. at 2065. Under the amended version of § 2254(d)(1) a federal habeas court's review is "twice-deferential." Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (per curiam). A state court's decision that the evidence satisfied the deferential Jackson standard is itself "entitled to considerable deference under AEDPA." Coleman, 132 S. Ct. at 2065; see also, Cavazos, 132 S. Ct. at 4.
While a challenge to the sufficiency of the evidence on an established element of an offense raises a federal constitutional claim cognizable in a habeas corpus proceeding, "[t]he applicability of the reasonable doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case." Patterson v. New York, 432 U.S. 197, 211 n.12 (1977); see also, Jackson, 443 U.S. at 324 n.16; Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Thus, "under Jackson, federal courts must look to state law for `the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman, 132 S. Ct. at 2064 (citation omitted) (quoting Jackson, 443 U.S. at 324 n.16). The Michigan home invasion statute provides:
MICH. COMP. LAWS § 750.110a(2). Thus, "[t]he elements of first-degree home invasion are: (1) the defendant broke into and entered a dwelling without permission, (2) while intending to commit or actually committing a felony, larceny, or assault while entering, exiting, or present within the dwelling, and (3) another person was lawfully present in the dwelling or the defendant was armed with a dangerous weapon." People v. Johnson, No. 285172, 2009 WL 2974771, at *1 (Mich. Ct. App. Sept. 17, 2009) (per curiam); see also, MICH. COMP. LAWS § 750.110a(2).
Petitioner argues that the verdict was against the weight of the evidence because Ashley testified that he had permission to enter the home, and thus the entry-without-permission element was not established. The Michigan Court of Appeals rejected this argument, reasoning that it was "unclear from Ashley's testimony whether she invited defendant to the home," but that Anderson, "Ashley's boyfriend at the time, testified that defendant entered the home without permission. . . . According to Anderson, defendant walked into the home without knocking or requesting entry." Meyer, 2011 WL 5454754, at *1. This determination was reasonable. At trial, Ashley testified that she met petitioner at the door to give him back some stuff. When Anderson came into view, petitioner came into the house and started wrestling with Anderson. She did not, however, directly testify that she ever invited petitioner into the home, or that he had permission to enter. See Trial Tr., Vol. II (A.M.), at 35. Anderson, on the other hand, testified that petitioner did not knock or call out, and just walked into the house. Ashley was with him in a different room at the time petitioner walked in. See Trial Tr., Vol. II (P.M.), at 34-35. Anderson's testimony, standing alone, provided sufficient evidence to prove beyond a reasonable doubt that petitioner entered without permission. See O'Hara v. Brigano, 499 F.3d 492, 500 (6th Cir. 2007) (victim's testimony alone sufficient even though not corroborated by other witnesses or physical evidence); United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir. 2005) ("Even in the face of inconsistent evidence, a victim's testimony alone can be sufficient to support a guilty verdict."). As noted above, in reviewing the sufficiency of the evidence this Court does not make credibility determinations, nor does it reweigh the evidence. A reviewing court may reverse a jury's credibility determinations only where the testimony is incredible as a matter of law, "such as where it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all." United States v. Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007) (internal quotation omitted); accord United States v. Smith, 606 F.3d 1270, 1281 (10th Cir. 2010); United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009); United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993). Here, Anderson's testimony was not impossible based on his ability to observe or the laws of nature. The fact that his testimony may have been inconsistent with Ashley's testimony does not render the testimony incredible on its face. See United States v. Patterson, 23 F.3d 1239, 1244 n.5 (7th Cir. 1994).
In short, as the Supreme Court explained the Jackson standard does not permit "fine-grained factual parsing" of the evidence by a reviewing court, Coleman, 132 S. Ct. at 2064, nor does it permit this Court to reweigh the conflicts in the evidence or assess the credibility of the witnesses. The trier of fact was free to draw any reasonable inferences from the evidence, and to resolve the conflicts in the evidence in favor of the prosecution. In light of the victims' testimony it cannot be said that the trial judge's verdict based on the circumstantial evidence was "so insupportable as to fall below the threshold of bare rationality." Coleman, 132 S. Ct. at 2065. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
Petitioner next contends that he was denied a fair trial by the trial court's erroneous instruction on the elements of first degree home invasion. The Court should conclude that petitioner is not entitled to habeas relief on this claim.
In order for habeas corpus relief to be warranted on the basis of incorrect jury instructions, a petitioner must show more than that the instructions are undesirable, erroneous or universally condemned; rather, taken as a whole, they must be so infirm that they rendered the entire trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986); cf. United States v. Sheffey, 57 F.3d 1419, 1429-30 (6th Cir. 1995) (standard of review for jury instructions challenged on direct criminal appeal). As the Supreme Court noted in Estelle, the Court should "also bear in mind [the Supreme Court's] previous admonition that we `have defined the category of infractions that violate "fundamental fairness" very narrowly.'" Estelle, 502 U.S. at 72-73 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). If an instruction is ambiguous and not necessarily erroneous, it can run afoul of the Constitution only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 72 & 73 n.4; Boyde v. California, 494 U.S. 370, 380 (1990). In short, instructional errors of state law will rarely form the basis for federal habeas corpus relief. See Estelle, 502 U.S. at 71-72.
Petitioner contends that the trial court erred in instructing the jury on the elements of the home invasion offense. In instructing the jury on this offense, the trial transcript reflects the court as instructing: "Third: That when the defendant entered, was present in, or leaving the dwelling, either of the following circumstances existed: He was armed with a dangerous represent, and/or another person was lawfully present in the dwelling." Trial Tr., Vol. III, at 56-57 (emphasis added). The Michigan Court of Appeals rejected petitioner's claim on two grounds. First, the court concluded that "[b]ecause the instruction as stated in the record is nonsensical, it appears that a transcription error occurred in which the court reporter substituted the word `represent' for `weapon.'" Meyer, 2011 WL 5454754, at *2. Second, the court of appeals concluded that "even if the trial court misspoke, . . . the instructions as a whole fairly presented the issues to be tried and sufficient protected defendant's rights." Id. This was so, the court reasoned, because
Id; see also, Trial Tr., Vol. III, at 54-55 (correctly stating the elements of first degree home invasion with respect to the attempt charge). These determinations were reasonable.
First, as a factual matter, there was no error in the trial court's instructions. The Michigan Court of Appeals made a factual determination that the instruction as reflected in the transcript was a mere transcription error. Under the habeas statute, the state courts' findings of fact are presumed correct unless rebutted by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), and petitioner is entitled to habeas relief only if the state courts' factual determinations were unreasonable in light of the record, see 28 U.S.C. § 2254(d)(2). As the Sixth Circuit has observed, the statutory presumption of correctness contained in § 2254(e)(1) "extends to factual findings made by state appellate courts on the basis of their review of trial court records." Hardaway v. Withrow, 305 F.3d 558, 563 (6th Cir. 2002); see also, Sumner v. Mata, 449 U.S. 539, 547 (1981); Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003). Petitioner has offered nothing to show that this factual finding is clearly erroneous. See Hardaway, 305 F.3d at 563-64 (applying presumption of correctness to Michigan Court of Appeals's finding that transcript explaining that jury was instructed on "2nd Degree Involuntary Manslaughter" was an obvious transcription error where, under circumstances of the case, the similarity of sound, and Michigan law it was clear that the transcript should have read "2nd Degree [murder] and voluntary manslaughter").
Second, even if the trial court's instruction was erroneous, petitioner cannot show that the error deprived him of a fair trial. The phrase "armed with a dangerous represent" is, as the court of appeals observed, nonsensical, and the jury would naturally have interpreted these words to mean "armed with a dangerous weapon," particularly in light of the fact that the trial court had used those words shortly before in setting forth the elements of attempted first degree home invasion. The trial court's misstatement, if there was one, did not provide an alternative, invalid basis upon which the jury could return a guilty verdict. And in any event, the theory of the case was that petitioner entered the dwelling while it was lawfully occupied. There was no dispute that the dwelling was occupied; petitioner's defense was that he had permission to enter. And there was nothing incorrect in the court's instruction with respect to occupancy. In these circumstances, petitioner cannot show that the instructions as whole deprived him of a fair trial. Cf. Neder v. United States, 527 U.S. 1, 17 (1999) (error in failing to instruct on an element of the offense is harmless where "the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error[.]"). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
The bulk of petitioner's claims relate to his representation at trial. In the first portion of his first claim, petitioner contends that he was denied his right to represent himself. In the second portion of his first claim, and in his remaining claims, petitioner contends that trial counsel rendered constitutionally ineffective assistance. The Court should conclude that petitioner is not entitled to habeas relief on these claims.
The Sixth Amendment, applicable to the states through the Fourteenth Amendment Due Process Clause, provides that a criminal defendant shall have the right to the assistance of counsel in his defense. See U.S. CONST. amend. VI. This right necessarily implies its corollary, that a defendant has a right to proceed without counsel and represent himself. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 154 (2000); Faretta v. California, 422 U.S. 806, 833-34 (1975). The right to assistance of counsel and the right to self-representation are thus correlative rights; the assertion of one necessarily constitutes a waiver of the other. See United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970). Nevertheless, a defendant's waiver of his right to counsel and decision to proceed pro se must be knowing and intelligent. See Faretta, 422 U.S. at 835; Carnley v. Cochran, 369 U.S. 506, 516 (1962). As the Supreme Court explained, in order for the defendant's decision to be knowing and voluntary, "he should be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). However, the Supreme Court has "not prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel," Iowa v. Tovar, 541 U.S. 77, 88 (2004), and there is "no sacrosanct litany for warning defendants against waiving the right to counsel." United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). Rather, the adequacy of a defendant's waiver is determined from the facts and circumstances of the case. See Tovar, 541 U.S. at 88.
However, the right to self-representation is not absolute. See Martinez, 528 U.S. at 161. A defendant's request for self-representation must be made clearly and unequivocally. See Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000); Munkus v. Furlong, 170 F.3d 980, 983-984 (10th Cir. 1999). The right to self-representation is waived if it is not timely and unequivocally asserted. See Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). The right to self-representation may also be waived through conduct which indicates that the defendant is vacillating on the issue or has abandoned his or her request altogether. See Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000). A waiver of the right to self-representation may also be found if it reasonably appears to the court that the defendant abandoned his initial request to represent himself. See id.
Petitioner was initially represented by C. Michael Gorte, whom he had retained. Because petitioner had repeatedly contacted the court and the prosecutor without his input, Gorte moved to withdraw based on a conflict of interest. Petitioner did not object, and informed the court that he would retain new counsel "within the next week." Mot. to Withdraw Tr., dated 10/5/09, at 4. The trial court informed petitioner that it would refer his case to the Office of Assigned Counsel so that if petitioner were unable to retain an attorney, he would have one at trial. See id. at 4-5. The following exchange then occurred:
Id. at 5-6. Petitioner did not inform the court that he had retained new counsel, so on October 15, 2009, the trial court appointed Timothy Lynch to represent him. On January 12, 2010, with the trial imminent, Lynch (through an associate) requested an adjournment of the trial because he was involved in another trial at that time. See Adjournment Tr., dated 1/12/10, at 3. Petitioner requested a reduction in bond, noting how long he had been detained pending trial. The court denied this request.
On January 27, 2010, petitioner filed a pro se motion for self-representation, and filed the identical motion on February 16, 2010. His motion was accompanied by another motion asserting his speedy trial rights. In the motion for self-representation, petitioner gave a single basis for representing himself, namely, that he had been "incarcerated for a period of 418 days from arrest, and the court appointed attorney has not assisted in speedy resolution." Mot. for Self-Representation (filed as part of this Court's docket #8-18). Shortly after, the court heard Attorney Lynch's motion to withdraw. Lynch, like Gorte before him, sought to withdraw on the basis that petitioner filed multiple documents on his own that Lynch did not believe were in petitioner's best interests. See Mot. to Withdraw Tr., dated 2/22/10, at 4. Petitioner noted that he had filed a motion to represent himself, but objected to Lynch's withdrawal because he need help with the case. See id. at 3-4. The trial court granted the motion to withdraw, and informed petitioner that he would refer the matter once again to the Office of Assigned Counsel "to get a lawyer to assist you." Id. at 5. Petitioner responded, "That's fine with me. All I want is just some help." Id. The trial court appointed Eldor Hermann to represent petitioner on March 1, 2010. On March 8, petitioner and Hermann appeared in response to the prosecutor's motion for joinder of the charges. Hermann indicated that he had conferred with petitioner, and that they had no objection to joinder of the charges. See Mot. for Joinder Tr., dated 3/8/10, at 3. Addressing petitioner's request to represent himself, the trial court indicated, "I'm going to have Mr. Herrmann [sic] also represent you in concern with you, and if — we'll see how that goes at the time of trial." Id. at 4.
Trial was scheduled to begin on March 23, 2010. At that time, Hermann informed the court that he had recommended to petitioner that "we adjourn today because of my having just recently been on this case, I don't — I'm not as prepared as I would like to be." Trial Tr., Vol. I, at 3. Counsel further informed the court that "[m]y client wishes to proceed, however, with his trial today." Id. Petitioner agreed with counsel's representation. Petitioner did not, however, renew his request to represent himself, see id. at 4, nor did he ask to be able to represent himself at any point during the trial.
Based on this chain of events, the Michigan Court of Appeals determined that petitioner was not denied his right to represent himself, reasoning:
Meyer, 2011 WL 5454754, at *4. The Court should conclude that this determination was reasonable.
Here, petitioner did not make an unequivocal request to represent himself. The record establishes that petitioner did not desire to represent himself so much as he desired to speed along the proceedings. His motion to represent himself was based solely on the fact that appointed counsel was not moving swiftly enough to have the charges brought to trial. When the trial court addressed these matters with petitioner, petitioner again stressed his interest in securing a speedy trial, but had no objection to the trial court appointing new counsel, and stressed that he wanted counsel because he needed help.
Petitioner next raises several claims that trial counsel was ineffective. The Court should conclude that petitioner is not entitled to habeas relief on this claims.
The Sixth Amendment right to counsel and the right to effective assistance of counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient performance prejudiced the defense. Id. at 687. These two components are mixed questions of law and fact. Id. at 698. Further, "[t]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. If "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id. With respect to the performance prong of the Strickland test, a strong presumption exists that counsel's behavior lies within the wide range of reasonable professional assistance. See id. at 689; see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). "[D]efendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citation omitted). "[T]he court should 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. With respect to the prejudice prong, the reviewing court must determine, based on the totality of the evidence before the factfinder, "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. It is petitioner's burden to establish the elements of his ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818, 833 (6th Cir. 1995) (petitioner bears the burden of establishing counsel's ineffectiveness); Lewis v. Alexander, 11 F.3d 1349, 1352 (6th Cir. 1993) (same).
As the Supreme Court has recently explained, Strickland establishes a high burden that is difficult to meet, made more so when the deference required by § 2254(d)(1) is applied to review a state court's application of Strickland:
Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
Petitioner first contends that counsel was ineffective for failing to investigate a duress defense to the home invasion. Petitioner argues that Anderson said to him: "Your son is going to call me Daddy." This, petitioner contends, constituted a provocation that would have negated his specific intent. He argues that counsel was ineffective for failing to investigate and pursue this defense. The Court should conclude that petitioner is not entitled to habeas relief on this claim.
Decisions about what defenses to pursue or not pursue are "[a]mong the `virtually unchallengeable' tactical decisions left to the judgment of trial counsel." Gluzman v. United States, 124 F.Supp.2d 171, 174 (S.D.N.Y. 2000). "To counteract the natural tendency to fault an unsuccessful defense, a court reviewing an ineffective assistance of counsel claim must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" Nix v. Whiteside, 475 U.S. 157, 165 (1986) (quoting Strickland, 466 U.S. at 689); see also, Griffin v. McVicar, 84 F.3d 880, 888 (7th Cir. 1996) ("[T]he mere fact that a defendant chooses one of two available defenses cannot establish ineffective assistance of counsel, even if the defendant makes a bad choice."). "Simply because counsel was unsuccessful does not make him ineffective for Sixth Amendment purposes." Mayes v. United States, 93 F.Supp.2d 882, 891 (E.D. Tenn. 2000). Here, counsel pursued a reasonable defense strategy with respect to the home invasion charge, namely, that petitioner did not enter without permission. The testimony of Ashley, one of the victims, arguably supported this defense, and counsel was reasonable in pursuing that strategy in light of the evidence available.
Moreover, "in assessing the reasonableness of counsel's choice of what defense to pursue, it is not enough to look at the likelihood of success of the defense chosen; a reviewing court must also consider the viability of the defenses which counsel chose not to pursue." Huckaby v. Lafler, No. 2:09-cv-10030, 2010 WL 5104844, at *8 (June 28, 2010) (Komives, M.J.), magistrate judge's report adopted, 2010 WL 5105155 (E.D. Mich. Dec. 9, 2010) (Battani, J.). Here, petitioner did not have a viable duress defense. Under Michigan law,
People v. Dupree, 284 Mich.App. 89, 100, 771 N.W.2d 470, 478 (2009), aff'd on other grounds, 486 Mich. 693, 788 N.W.2d 399 (2010). Here, petitioner has pointed to no evidence that counsel could have uncovered which would have supported a duress defense under Michigan law. He does not assert that Anderson threatened him with death or bodily harm if he did not enter the house; rather, he contends only that Anderson made a provocative statement. This is insufficient to support a duress defense. Nor can petitioner show that Anderson's alleged provocation provided a defense to the home invasion charge. Although adequate provocation may, in a homicide case, be used to establish that a killing constituted manslaughter rather than murder, petitioner has cited, and I have found, no Michigan case recognizing a provocation defense outside the homicide context.
In light of Ashley's testimony providing some support for the defense pursued by counsel (i.e., that petitioner had permission to enter the house), and the lack of viability of a duress defense, petitioner cannot show that counsel made an unreasonable strategic decision in choosing to pursue the former rather than the latter. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
Petitioner next contends that counsel was ineffective for failing to object to joinder of the various cases. The Michigan Court of Appeals rejected this claim, concluding that joinder of the offenses was appropriate under state law, and thus that counsel was not ineffective for failing to object to joinder. See Meyer, 2011 WL 5454754, at *3. This determination was reasonable.
The Michigan Court of Appeals concluded that the charges were properly joined under state law, reasoning:
Meyer, 2011 WL 5454754, at *3. In analyzing petitioner's ineffective assistance of counsel claim, this expression of state law is binding on this Court. See Basile v. Bowersox, 125 F.Supp.2d 930, 960 (E.D. Mo. 1999). See generally, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Sarausad v. Porter, 503 F.3d 822, 824 (9th Cir. 2007) ("A determination of state law by a state appellate court is. . . binding in a federal habeas action."). Thus, any objection to joinder of the charges would have been meritless. Because it is well established that counsel cannot be deemed ineffective for failing to raise a meritless objection, see Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006); Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir. 1995); Burnett v. Collins, 982 F.2d 922, 929 (5th Cir. 1993), petitioner is not entitled to habeas relief on this claim.
Moreover, petitioner cannot establish that he was prejudiced by joinder of the charges. "Such prejudice may arise when there is a great disparity in the amount of evidence supporting the charges or when the jury is likely to confuse the evidence or infer a criminal disposition on the part of the defendant." Webber v. Scott, 390 F.3d 1169, 1178 (10th Cir. 2004). The inquiry should focus on "cross-admissibility of evidence and the danger of `spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Here, petitioner does not identify any unfairly prejudicial evidence relevant to some charges that would not have been relevant to other charges, nor does he allege a great disparity in the strength of the evidence. Nor was there any danger of confusion, as evidenced by the fact that the jury considered each charge individually, acquitting him of some charges and convicting him of others. In these circumstances, where the evidence was cross-admissible and there was no risk of juror confusion, petitioner cannot show he was denied a fair trial by the joinder of the charges. See Webber, 390 F.3d at 1178; Davis, 384 F.3d at 639; United States v. Jacobs, 244 F.3d 503, 507 (6th Cir. 2001). He likewise, therefore, cannot establish that he was prejudiced by counsel's failure to object to joinder. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
Petitioner next contends that counsel was ineffective for failing to offer mitigation evidence at sentencing that would have supported a downward departure from the sentencing guidelines. The Michigan Court of Appeals rejected this claim. Noting that a departure from the sentencing guidelines is warranted only if there is a "substantial and compelling" reason for departure, that is, "an objective and verifiable reason that keenly or irresistibly grabs the court's attention," Meyer, 2011 WL 5454754, at *5, the court reasoned that petitioner's proffered reasons for a downward departure, "his employment history, strong family support, and mental health and psychological problems," did not "keenly or irresistibly grab [the court's] attention or exist only in exceptional cases," and thus his "reasons for departure are not substantial and compelling." Id. As noted above, this determination of state law is binding in analyzing petitioner's ineffective assistance claim. Because the court of appeals determined as a matter of state law that petitioner's mitigation factors did not provide substantial and compelling reasons for a downward departure, he cannot show that he was prejudiced by counsel's failure to argue these factors at sentencing. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
Petitioner next contends that counsel was ineffective for failing to object to false testimony from Officer Fromholz that a gun was recovered from petitioner's apartment after the November 1, 2008, incident. Specifically, Fromholz testified that Ashley told him that petitioner had pointed "a long gun" at her. See Trial Tr., Vol. II (A.M.), at 50. On cross-examination, Fromholz testified that he did not recover a gun, but that he believed a gun had been recovered and that he assumed it was in evidence. See id. at 55. The Michigan Court of Appeals rejected petitioner's claim, reasoning that counsel himself had elicited the testimony, and that in any event petitioner could not establish prejudice "because the jury acquitted him of felonious assault and possession of a firearm during the commission of a felony with respect to the November 1, 2008, incident." Meyer, 2011 WL 5454754, at *5. This determination was reasonable.
At the outset, petitioner cannot show that Fromholz's testimony was false, and therefore objectionable. Fromholz testified only that Ashley told him that a gun had been involved. He did not testify that he saw or recovered a firearm. As to whether any such gun had been recovered, he did not definitively testify that a gun had been recovered, only that believed one had and that he assumed it was in evidence. In any event, counsel successfully challenged this testimony through other means. Counsel elicited from Office Gettel that she did not search the apartment, and that to her knowledge no firearm had been recovered. See Trial Tr., Vol. II (A.M.), at 61. In closing argument, defense counsel argued that the felonious assault and felony-firearms charges were not supported because Ashley testified that no gun had been involved, and the police had failed to recover a gun or offer it into evidence. See id., Vol. III, at 18-20. This argument was successful, as the jury acquitted petitioner of the only two charges to which the firearm was relevant. Because counsel successfully negated Fromholz's testimony through the testimony of another witness and through closing argument, petitioner cannot show that he was prejudiced by counsel's failure to object to Fromholz's testimony. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.
As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As the Sixth Circuit has noted, this language represents a codification of the Supreme Court's decision in Barefoot v. Estelle, 463 U.S. 880 (1983), and "[t]he AEDPA thus makes no change to the general showing required to obtain a certificate[.]" Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a "substantial showing" of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that "`[a] substantial showing requires the applicant to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further."'" Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, "[t]he new Act does, however, require that certificates of appealability, unlike the former certificates of probable cause, specify which issues are appealable." Lyons, 105 F.3d at 1073. (citing 28 U.S.C. § 2253(c)(3)).
Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)'s requirement that any grant of a certificate of appealability "state the specific issue or issues that satisfy the showing required by § 2253(c)(2)," Rule 11(a), but omits the requirement contained in the pre-amendment version of Federal Rule of Appellate Procedure 22(b)(1) that the court explain "why a certificate should not issue." FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either grant or deny the certificate of appealability at the time of its final adverse order, I include a recommendation regarding the certificate of appealability issue here.
If the Court accepts my recommendation regarding the merits of petitioner's claims, the Court should also conclude that petitioner is not entitled to a certificate of appealability. With respect to petitioner's sufficiency of the evidence claim, it is clear that Anderson's testimony alone provided sufficient evidence to prove beyond a reasonable doubt that petitioner entered the home without permission. Thus, the resolution of this claim is not reasonably debatable. With respect to petitioner's jury instruction claim, the Michigan Court of Appeals reasonably found that the error reflected in the transcript was a mere transcription error, and in any event it is clear that the instructions as a whole adequately informed the jury of the elements of the home invasion offense. Thus, the resolution of this claim is not reasonably debatable. Because the Michigan Court of Appeals reasonably determined that petitioner failed to make an unequivocal request to represent himself and acquiesced in counsel's representation, the resolution of petitioner's self-representation claim is not reasonably debatable. As explained above, counsel reasonably chose to pursue a defense to the home invasion charge that was based on the evidence, and petitioner has failed to present a viable defense that further investigation could have uncovered. Thus, the resolution of this ineffective assistance claim is not reasonable debatable. Because joinder of the charges and petitioner's sentence were appropriate as matters of state law, it is not reasonably debatable that petitioner was not prejudiced by counsel's failure to object to joinder or arguing for a downward departure. Finally, because petitioner was acquitted of the only charges to which his possession of a gun was relevant, the resolution of petitioner's ineffective assistance claim relating to Officer Fromholz's testimony is not reasonably debatable. Accordingly, the Court should deny petitioner a certificate of appealability.
In view of the foregoing, the Court should conclude that the state courts' resolution of petitioner's claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner's application for the writ of habeas corpus. If the Court accepts this recommendation, the Court should also deny petitioner a certificate of appealability.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED. R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
