PATRICK J. DUGGAN, District Judge.
This matter is presently before the Court on Petitioner Curtis Lewis's petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254 on August 29, 2012. On August 18, 2009, following a jury trial in the Jackson County Circuit Court, Petitioner was convicted of armed robbery. Petitioner was sentenced to 15-to-20 years in prison. The petition raises the following claims: (1) trial counsel was ineffective for failing to move to suppress Petitioner's coerced confession; (2) trial counsel was ineffective for failing to object to jury instructions regarding appropriate police tactics during the interview of a suspect; (3) Petitioner's sentence is invalid because the minimum term exceeds two-thirds of the maximum term; and (4) Petitioner's sentence should be amended to reflect the withdrawal of the habitual offender status.
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):
As noted, the jury found defendant guilty of armed robbery.
People v. Lewis, 2011 Mich. App. LEXIS 353, at *1-8 (Mich. Ct. App. Feb. 17, 2011)
Following his conviction and sentence, Petitioner filed an appeal with the Michigan Court of Appeals, raising what now forms his habeas claims. The court affirmed his conviction, but remanded the case for resentencing. Id. Both parties appealed to the Michigan Supreme Court, and the Court ordered Petitioner's original sentence reinstated and denied Petitioner leave to appeal the issues he was appealing. People v. Lewis, 489 Mich. 941 (2011) (table).
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits—
28 U.S.C. § 2254(d).
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, 120 S.Ct. 1495, 1519 (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, 120 S. Ct. at 1521. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11, 120 S. Ct. at 1522.
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 2066 n.7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. "[I]f this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S. Ct. at 786.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 2796 n.5 (1979) (Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "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.
Petitioner's first claim asserts that his trial counsel was ineffective for failing to move to suppress Petitioner's statement to police on the grounds that it was involuntarily given. Petitioner's second claim asserts that his counsel should have objected to a jury instruction regarding the interview technique employed by the police officers.
In order to prevail on a claim of ineffective assistance of counsel, Petitioner "must show both that his counsel's performance was deficient and that the deficient performance prejudiced the defense." Hodges v. Colson, 711 F.3d 589, 613 (6th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65 (1984)). To show deficiency, Petitioner must establish that "counsel made errors so serious that [he] was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice, Petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. Both components need not be addressed if Petitioner has failed to meet one of them. Id. at 697, 104 S. Ct. at 2069.
The Michigan Court of Appeals rejected the two allegations of ineffective assistance of counsel on the merits, reasoning as follows:
Lewis, 2011 Mich. App. LEXIS 353, at *9-14.
With respect to Petitioner's first habeas claim, the issue as framed by the Michigan Court of Appeals amounted to a determination whether Petitioner's statement to police would have been suppressed. If not, as the state court found, then counsel was not ineffective for failing to challenge it. See Bradley v. Birkett, 192 F. App'x 468, 475 (6th Cir. 2006) (counsel not ineffective for failing to object to meritless prosecutorial misconduct claim).
In this action the issue is more subtle. Here, the Court must not merely determine whether counsel was ineffective for failing to challenge the admissibility of the statement, but whether the state court's rejection of the claim on the basis that the statement was admissible resulted in an unreasonable application of clearly established federal law. Habeas relief must be denied under this standard if `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S. Ct. at 786.
Turning to the merits of the underlying suppression claim, when considering the voluntariness of a confession, a court must consider the "totality of the circumstances" to determine whether a statement was the "product of an essentially free and unconstrained choice by its maker." Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1251-52 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047 (1973). At one time, the Supreme Court held that a confession could not constitutionally be obtained by "any direct or implied promises, however slight, nor by the exertion of any improper influence." Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187 (1897) (internal quotation marks omitted). As the Court found in Fulminante, however, "this passage from Bram . . . under current precedent does not state the standard for determining the voluntariness of a confession." Fulminante, 499 U.S. at 285, 111 S. Ct. at 1251.
The existence of a promise in connection with a confession does not render a confession per se involuntary. Rather, "[i]n determining whether a confession is involuntary due to police coercion, this Court has three requirements that must be met: `(i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant's will; and (iii) the alleged police misconduct was the crucial motivating factor in the defendant's decision to offer the statement.'" United States v. Siler, 526 F. App'x 573, 575 (6th Cir. 2013) (quoting United States v. Mahan, 190 F.3d 416, 422 (6th Cir.1999)).
"[A] statement about possible leniency upon cooperation is not generally impermissible." United States v. Cruse, 59 F. App'x 72, 78 (6th Cir. 2003). In general, promises of leniency are coercive only "if they are broken or illusory." United States v. Johnson, 351 F.3d 254, 262 n.1 (6th Cir. 2003). Given the right circumstances, a false promise of leniency may be sufficient to overcome a person's ability to make a rational decision about the courses open to him. For example, promises of leniency that amount to a grant of immunity may render a confession invalid. United States v. Parker, 997 F.2d 219, 222 (6th Cir. 1993).
During Petitioner's trial, a recording of the police interview that resulted in his confession was played for the jury and transcribed. See ECF No. 8-4, pp. 242-312. At the start of the interview, Petitioner was informed that he was not under arrest and that he was free to leave. For the first portion of the interview, Petitioner flatly denied that he robbed the Check `N Go. Id. at 242-270. Eventually, the questioning officer, Detective Smith, stated: "I know you made a mistake that day and I don't want you to make another one. I can make this go away." Id. at 271. Petitioner responded, "I didn't do it. I promise to God I didn't do it." Id. The officer stated, "I'm trying to minimize this for you." Id. Again, Petitioner denied involvement. Id.
The officer then changed tactics. He stated that "all Check `N Go wants is their money back." Id. at 272. This tactic proved more effective, and Petitioner agreed to pay restitution. After further discussion regarding the amount of restitution, interspersed with comments by the officer that he did not believe a serious offense occurred, Petitioner eventually disclosed the amount of money he obtained.
Throughout the rest of the interview, the officer focused on restitution, but also stated that he thought the crime was only a larceny, id. at 276, that it was a "one time deal," id. at 277, and that Petitioner would not be arrested. Id. at 278-279, 281. Then, towards the end of the interview, and after Petitioner had fully implicated himself, the officer stated that he would contact the prosecutor's officer to try to minimize the crime, but ultimately a decision on arresting Petitioner and charges would be up to the prosecutor. Id. at 289-291.
Another judge in this district has suggested that a promise by the police to make a potential criminal case "go away" could render involuntary a confession made after the promise:
United States v. Assi, 512 F.Supp.2d 1047, 1053 (E.D. Mich. 2007).
The officer here implied that if Petitioner paid restitution, he could make the case go away or minimize the charges faced by Petitioner. It was only after Petitioner finished incriminating himself that the officer informed him that any charges would be up to the prosecutor's officer and not him. It is therefore difficult to describe the questioning here as being anything other than objectively coercive. Tactics such as the ones used here are "problematic if a police officer leads a defendant to believe that he will receive lenient treatment when this is quite unlikely, and makes a promise, without authorization by the prosecution." Siler, 526 F. App'x at 575-76 (internal quotation marks and citation omitted). In Siler, the Sixth Circuit determined that a confession was coerced where the questioning officer represented to the defendant that he had the authority to decide on the charges that were brought, that cooperation would affect the decision, and the suspect repeatedly sought clarification on the value of his cooperation. Here, too, the officer essentially made a promise of lenient treatment in exchange for restitution and an incriminating statement but, as the officer himself later admitted, the promises were illusory because he had no authority to make them.
To succeed, however, Petitioner must also show that the coercive tactic was sufficient to overbear his will. Siler, 526 F. App'x at 575. Although, in this Court's view, the issue presents a very close question, the Court ultimately concludes that the Michigan Court of Appeals reasonably found that the officer's tactics were not so coercive as to overbear Petitioner's will. As the state court correctly noted, Petitioner was not under arrest and was free to leave, it was not a particularly lengthy interview, the officers were not abusive, and Petitioner's answers did not suggest that he was confused or too tired despite having two-hours sleep at the time. These facts reasonably distinguish this case from cases like Siler where the suspect repeatedly referred to, and sought clarification regarding, the promises before incriminating himself. That is, the entirety of the circumstances of this interview left enough room for the Michigan Court of Appeals to find that Petitioner's will was not overborne by the coercive tactics of the questioning officer, and therefore find that Petitioner had not demonstrated that he was prejudiced by his counsel's failure to challenge the admissibility of the statement.
As stated, this Court believes that the underlying question as to the voluntariness of the confession presents a very close question. The question reasonably could be decided either way. That fact, however, cuts against Petitioner's claim for relief under § 2254(d). "If a state court's decision on a constitutional question is `a close call,' that fact `militates against the conclusion that the state court's application of the relevant Supreme Court precedent was objectively unreasonable.'" Lovell v. Duffey, 629 F.3d 587, 598 (6th Cir. 2011) (quoting Lopez v. Wilson, 426 F.3d 339, 358 n.1 (6th Cir. 2005) (en banc) (Cole, J., concurring)). Accordingly, Petitioner has not demonstrated entitlement to habeas relief with respect to his first claim of ineffective assistance of counsel.
Turning to Petitioner's second claim, the trial court instructed the jury that some deception by the police during an interrogation is permissible. The Michigan Court of Appeals found that, under state law, such an instruction was correct. People v. Dudgeon, 229 Mich. 26, 29 (1924). The trial court went on to further instruct the jury that "if an admission comes in, the court has to be satisfied that it was made knowingly, intelligently, and voluntarily." The Michigan Court of Appeals found that this portion of the instruction improperly impinged on the province of the jury to determine the voluntariness of defendant's confession. The state court also found that there was no conceivable strategic reason to fail to object to the instruction, so it went on to determine whether Petitioner could demonstrate that he was prejudiced by his counsel's deficient performance, and it found that he could not.
This Court concludes that the state appellate court's rejection of this claim on the prejudice prong of Strickland was reasonable. The state court noted that the evidence against Petitioner was strong. He was identified as being in the Check `N Go on the day of the robbery and seemed to be scrutinizing the clerks' actions. During the robbery, the perpetrator was wearing a similar sweatshirt and shoes to Petitioner's earlier attire, and he had a similar build and complexion. The court found that, given the evidence corroborating the confession, there was not a reasonable likelihood that the erroneous instruction altered the result of the trial. This decision constitutes a reasonable argument that Petitioner was not prejudiced, and therefore relief is barred under the AEDPA standard of review.
Petitioner's third claim asserts that his sentence of 15-to-20 years is invalid because the minimum term exceeds two-thirds of the maximum term. His fourth claim asserts that his Judgment of Sentence should be amended to indicate that he was not sentenced as a habitual offender. Neither claim is cognizable in this action.
It is well established that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991). Petitioner's challenge to his sentence only raises an issue under state law, which this Court cannot address in a habeas corpus proceeding. "A federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875 (1984).
Moreover, Petitioner has not demonstrated that his sentence is improper under state law. The relevant statute provides that a sentencing court "shall not impose a minimum sentence, including a departure, that exceeds 2/3 of the statutory maximum sentence." Mich. Comp. Laws § 769.34(2)(b) (emphasis added). The statutory maximum for armed robbery is life imprisonment. See Mich. Comp. Laws § 750.529. Thus, Petitioner's minimum sentence of fifteen years does not violate the 2/3 rule. In fact, the Michigan Supreme Court has ruled that § 769.34 does not apply when a defendant is convicted of an offense punishable by a prison sentence of "life or any term of years" because the minimum sentence will never exceed 2/3 of the statutory maximum. See People v. Harper, 479 Mich. 599, 617 (2007) (citing People v. Drohan, 475 Mich. 140, 162 n.14 (2006)). Because Petitioner was convicted of armed robbery, an offense punishable by life or any term of years, the 2/3 rule is inapplicable to his sentence.
Finally, as noted by the Michigan Court of Appeals, and as confirmed by the copy of Petitioner's Judgment of Sentence filed with the Rule 5 materials, there is no indication that Petitioner was sentenced as a habitual felony offender. Accordingly, Petitioner's third and fourth habeas claims do not form a basis for granting relief.
Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 1034 (2003). In applying this standard, a court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of the claims. Id. at 336-37, 123 S. Ct. at 1039.
The Court concludes that a certificate of appealability is warranted in this case because reasonable jurists could debate the Court's assessment of Petitioner's first claim relating to the effectiveness of Petitioner's counsel in failing to challenge the admissibility of his confession to police. The Court will deny a certificate of appealability with respect to Petitioner's remaining claims. The Court will also grant Petitioner permission to proceed on appeal in forma pauperis.
For the foregoing reasons,
