JUDITH E. LEVY, District Judge.
Petitioner Salam Zora, confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 through his attorneys Daniel E. Harold, Mayer Morganroth, and Stuart Friedman. (Dkt. 1.) He has also filed a motion for an evidentiary hearing. (Dkt. 9.) Petitioner challenges his conviction for second-degree murder, MICH. COMP. LAWS § 750.317, and carrying or possessing a gun when committing a felony, MICH. COMP. LAWS § 750.227b.
For the reasons set forth below, the petition for a writ of habeas corpus is denied. Further, the motion for an evidentiary hearing is denied, and a certificate of appealability will not issue.
Petitioner was charged with first-degree murder and possessing a firearm during a felony after killing his brother-in-law, Najem Matti. On September 25, 2009, a jury found Petitioner guilty of second degree murder and felony-firearm.
The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
People v. Zora, No. 296508, 2011 WL 2623384, at *1 (Mich. Ct. App. July 5, 2011). Petitioner's conviction was affirmed on appeal. Id., leave denied 491 Mich. 852 (2012).
Petitioner then filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Zora, No. 2009-2137-FC (Macomb Cty. Cir. Ct. Oct. 28, 2013). The Michigan appellate courts denied Petitioner leave to appeal. People v. Zora, No. 321508 (Mich. Ct. App. June 11, 2014); People v. Zora, No. 150070, 497 Mich. 1011 (2015).
Petitioner now seeks a writ of habeas corpus. Petitioner first argues he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel was unprepared, failed to interview and call several material witnesses, failed to investigate and present exculpatory evidence, and stipulated to the admission of false evidence. (Dkt. 1-1 at 19-37.) Next, Petitioner argues he was denied due process as guaranteed by the Fourteenth Amendment because of prosecutorial misconduct. The prosecutor at trial allegedly presented false evidence, concealed evidence, and submitted a false affidavit to the trial court regarding what the prosecutor did and did not argue at trial. (Id. at 37-43.) Third, Petitioner claims he was denied his right to a trial by a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments because the jury was racially and ethnically biased against him. (Id. at 43-44.) Finally, Petitioner claims his trial was "fundamentally unfair by virtue of the cumulative constitutional errors." (Id. at 44-45.)
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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 (2000). An "unreasonable application" occurs when a state court applies "clearly established federal law" in an "objectively unreasonable" manner. Id. at 410. 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 411.
"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 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (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, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain habeas relief, 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." Harrington, 562 U.S. at 103. A habeas petitioner must be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision reasonable. See Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1152 (2016).
Petitioner has raised a number of issues in his petition, and respondent argues that at least some of his claims are procedurally defaulted. Petitioner has also asked for an evidentiary hearing. Each of these issues is discussed in detail below.
Respondent argues that many of Petitioner's claims are procedurally defaulted either because he failed to preserve them during trial or because he raised the claims for the first time in his motion for post-conviction review and failed to show cause or prejudice, as required by Mich. Ct. R. 6.508(D), that would excuse him for failing to raise the claims on direct appeal.
The Supreme Court has held there is no rule "that the proceduralbar issue must invariably be resolved first" or before the merits of the potentially defaulted claims. Lambrix v. Singletary, 520 U.S. 518, 525 (1997). "Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Id. Thus, a federal court may "proceed directly to the merits of [the] claim" when "the question of procedural default presents a complicated question of [state] law" or "is unnecessary to [the] disposition of the case." Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003).
In this case, many of the allegedly procedurally-defaulted claims are similar or related to the non-defaulted claims. As set forth below, consideration of the non-defaulted claims will dispose of the allegedly defaulted claims and all of the claims lack merit, making the procedural default issue "unnecessary to [the] disposition of the case." Hudson, 351 F.3d at 216. Accordingly, the Court will adjudicate the merits of all of Petitioner's claims.
Petitioner first alleges he was denied the effective assistance of trial counsel for numerous reasons, as set forth below.
To show that he was denied the effective assistance of counsel, a defendant must satisfy a two-prong test. First, the petitioner must demonstrate that, considering all of the circumstances, counsel's performance was so deficient "that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the petitioner must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Second, the petitioner must demonstrate prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Strickland's test for prejudice is a demanding one. `The likelihood of a different result must be substantial, not just conceivable.'" Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112).
And on habeas review of state court determinations, "[t]he question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable-a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, pursuant to 28 U.S.C.
§ 2254(d)(1), "doubly deferential judicial review" applies to a Strickland claim brought by a habeas petitioner, id., and "a state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington, 562 U.S. at 101.
Because of this doubly deferential standard, the Supreme Court has indicated that:
Harrington, 562 U.S. at 105. Thus, a reviewing court must "affirmatively entertain the range of possible `reasons [counsel] may have had for proceeding'" as he did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).
Petitioner first argues that his trial counsel, Carl Marlinga, was not prepared for trial. Petitioner has submitted Mr. Marlinga's testimony from the post-trial evidentiary hearing — known as a Ginther hearing — that counsel felt tired and ill-prepared for trial because he had recently finished several other trials and was engaged in other matters. Mr. Marlinga also submitted a post-trial affidavit in which he claimed he was ineffective at trial. (Dkt. 1-15.)
Strickland "calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Harrington, 562 U.S. at 110. Because a court's inquiry asks whether representation fell below an objective standard of reasonableness, a defense attorney's subjective belief that his or her representation was inadequate or ineffective "plays no role" in determining whether a habeas petitioner was denied the effective assistance of counsel. Dugas v. Coplan, 428 F.3d 317, 328 n.10 (1st Cir. 2005). Indeed, "some excellent lawyers would stipulate to their own ineffectiveness if it might help win a client's release." Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004). Thus, Mr. Marlinga's post-trial testimony and affidavit are not sufficient to show that the state court unreasonably applied Strickland in finding Mr. Marlinga was not ineffective. People v. Zora, 2011 WL 2623384, at *5. Accordingly, Petitioner is not entitled to habeas relief on the ground that counsel has claimed he was illprepared for trial.
Petitioner claims that trial counsel was ineffective for failing to interview or call a number of individuals. Petitioner claims these individuals would have supported his self-defense claim; his peaceful character; and other facts related to his defense.
Petitioner claims that counsel was ineffective because he failed to interview or call to testify five individuals whose testimony would have allegedly supported his self-defense claim: the victim's then-four yearold son, Austin Matti; the victim's wife and Petitioner's sister, Manal Petros; Petitioner's other sister, Hana Battris; Petitioner's cousin, Shaban Kejbou; and Petitioner's employee, James Curry.
Petitioner previously raised this claim on appeal with respect to these individuals, except Mr. Curry. The Michigan Court of Appeals dismissed the claim, stating Petitioner had not submitted any documentation at the evidentiary hearing — and also did not call these individuals to testify at that hearing — to prove that these individuals would have testified in support of his defense. People v. Zora, 2011 WL 2623384, at *6. Thus, counsel was not ineffective because Petitioner had not demonstrated he was denied a "substantial defense" as nothing showed the testimony may have altered the outcome of the trial. Id.
The record shows the state court reasonably found counsel was not ineffective. First, nothing in the police interview of Austin Matti indicates he saw his father threaten or attack Petitioner with a knife. (See Dkt. 1-12.) Thus, Austin's understanding of the events was only that a fight occurred and then his father was shot. And given Petitioner's failure to call Austin at the post-trial evidentiary hearing and to submit any additional documentation indicating he would have testified to facts supporting Petitioner, the state court reasonably found that counsel was not ineffective for failing to call Austin as a witness. See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) ("[Petitioner] has not introduced affidavits or any other evidence establishing what [potential witnesses] would have said. . . . In the absence of any evidence showing that they would have offered specific favorable testimony, [Petitioner] cannot show prejudice from counsel's strategy recommendation not to introduce this evidence.").
Second, Petitioner's sister, Manal Petros, has repeatedly attested to the fact that she was in the garage at the time of the confrontation between Petitioner and her husband. (Dkt. 1-5.) Thus, any testimony she could have provided "would not help exonerate [Petitioner]." Pillette v. Berghuis, 408 F. App'x 873, 885-86 (6th Cir. 2010) (petitioner argued individual should have been called as a witness to support selfdefense claim in assault with intent to murder case). Consequently, the decision not to call her as a witness is not obviously unreasonable trial strategy, and it was reasonable for the state court to reject Petitioner's claim. McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir. 2000) ("Strategic choices by counsel, while not necessarily those a federal judge in hindsight might make, do not rise to the level of a Sixth Amendment violation.").
Third, Petitioner claims that trial counsel was ineffective for failing to call his other sister, Hana Battris, to testify that the victim attacked her with a knife fourteen years earlier. At trial, counsel filed a motion to admit Ms. Battris' testimony, but the trial court denied the motion, in part because there was no indication that Petitioner was aware of this specific instance of violence. (Tr. of Arg., 8-13 (Sept. 15, 2009); Tr. of Arg., 4-6 (Sept. 17, 2009)). Under Michigan law, a defendant must know a decedent's reputation for violence if he or she is going to use it to show he or she acted in self-defense. See People v. Harris, 458 Mich. 310, 316 (1998). Because the evidence Ms. Battris may have presented would have been inadmissible, the state court reasonably found counsel was not ineffective for failing to call her as a witness.
Next, Petitioner argues counsel was ineffective for failing to call Petitioner's cousin, Shaban Kejbou, to testify both about the victim's alleged "temper and aggressive attitude" and about an instance in which the victim allegedly stabbed a man with a knife. Petitioner has not provided any evidence suggesting he was aware of the stabbing incident to which Mr. Kejbou allegedly would have testified. Thus, the incident would very likely have been inadmissible under Michigan law. Moreover, Petitioner has not demonstrated that because of Mr. Kejbou's testimony about the victim's reputation, there is a reasonable probability the outcome of his trial would be different. Accordingly, the Michigan Court of Appeals reasonably found counsel was not ineffective for failing to call Mr. Kejbou.
Finally, Petitioner argues that counsel should have called James Curry, Petitioner's employee, to testify that the victim intimidated customers at his store with knives and made statements about his skills with a knife and how he could kill someone with a knife. This claim was not presented to the state courts and is thus unexhausted. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The Court may nevertheless deny relief with respect to the unexhausted claim if it can determine it lacks merit. 28 U.S.C. § 2254(b)(2). Here, as with the exhausted claims, Petitioner has not provided information to show he was aware of the incidents about which Mr. Curry may have testified. Because this evidence would have been inadmissible under Michigan law, counsel was not ineffective for failing to call Mr. Curry at trial.
Further, there was significant evidence presented at trial to negate Petitioner's self-defense claim and counsel called three witnesses — Petitioner and two of his brothers — to present the self-defense claim. Under Michigan law, for a defendant's acts to be considered lawful selfdefense, the evidence must show: (1) the defendant honestly and reasonably believed that he or she was in danger; (2) the danger feared was death or serious bodily harm or imminent forcible sexual penetration; (3) the action taken appeared at the time to be immediately necessary; and (4) the defendant was not the initial aggressor. See Blanton v. Elo, 186 F.3d 712, 713 n.1 (6th Cir. 1999) (citing People v. Heflin, 434 Mich. 482 (1990)); Johnigan v. Elo, 207 F.Supp.2d 599, 608-09 (E.D. Mich. 2002) (citing People v. Barker, 437 Mich. 161, 165 (1991); People v. Kemp, 202 Mich.App. 318, 322 (1993); People v. Deason, 148 Mich.App. 27, 31 (1985)). And a defendant is not entitled to use more force than necessary to defend himself. Johnigan, 207 F. Supp. 2d at 609 (citing Kemp, 202 Mich. App. at 322). Thus, "a killing or use of potentially lethal force will be condoned only when the killing or use of potentially lethal force was the only escape from death [or] serious bodily harm." Id. (internal citation omitted).
At trial, Petitioner and his brothers, Maher Zora and Hamid Zora, testified as to the events supporting Petitioner's self-defense claim. They testified that they went to the victim's house because Petitioner believed the victim had stolen $250,000 from him. And when they arrived, the victim became angry and asked Petitioner where his gun was. Further, all three testified that the victim went into the kitchen and came out with a two-headed knife or barbecue fork in his left hand and a knife in his other hand, and charged at Petitioner while screaming an Iraqi or Arabic war cry. Finally, Petitioner and his two brothers testified that Petitioner shot the victim in self-defense.
Despite this testimony, there was substantial evidence introduced to show Petitioner did not act in self-defense. Rather, the evidence showed Petitioner was angry at the victim for allegedly stealing $250,000, and went to confront the victim with a weapon and his two brothers. Significantly, Dr. Daniel Spitz, the Macomb County Medical Examiner, testified that the victim was shot five times, including three times in the back. The victim was not standing when he was shot in the back, according to Dr. Spitz. And there were no injuries suggesting a struggle or evidence of close-range firing. (Tr. of Arg., 12-19, 52-53 (Sept. 18, 2009)). And there was no other evidence of a struggle with the victim; no blood was recovered from the knife or fork, and both utensils were found some distance from the victim's body. The fact that the victim was shot multiple times in the back, particularly when the victim was on the ground, undercuts Petitioner's self-defense claim. See, e.g., Cain v. Redman, 947 F.2d 817, 822 (6th Cir. 1991).
Based on this evidence, a reasonable jury could find Petitioner intended to kill or harm the victim and did not act in self-defense, and that because Petitioner used excessive force. Further, the trial and appeals courts were justified in determining that Petitioner was not entitled to claim self-defense under Michigan law. Cf. Sutton v. Bell, 645 F.3d 752, 758 (6th Cir. 2011) (state court reasonably determined that petitioner was not prejudiced at capital murder trial by counsel's failure to object to prosecutor's improper comment because petitioner's self-defense theory failed as a matter of law). It is unlikely that counsel's "acts and omissions would have caused one to lose confidence in the jury's verdict." Lewis v. Curtis, 37 F. App'x 154, 159 (6th Cir. 2002). Thus, the state court reasonably found trial counsel was not ineffective for failing to interview or call these individuals to support Petitioner's self-defense claim. Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner also argues that trial counsel was ineffective for failing to call Mr. Kejbou and Petitioner's friend, Rafid Jajawie, to testify to Petitioner's character for peacefulness. Petitioner's claim was last addressed by the trial court on his motion for post-conviction relief. (Dkt. 1-42.) The trial court noted first that Petitioner did not offer any affidavits from them or ask them to testify at the Ginther hearing, and then held that counsel was not ineffective because Frank Polasky, Petitioner's friend, was called to testify and defense counsel "rebutted the People's witnesses who testified that the victim had a character for peacefulness." (Id. at 4-5.)
With his habeas petition, Petitioner has submitted affidavits from Mr. Kejbou and Mr. Jajawie. However, they do not undermine the state court's findings. First, Mr. Kejbou's affidavit does not mention Petitioner's peacefulness (Dkt. 1-24) and Mr. Jajawie's affidavit includes only one sentence as to Petitioner's nature. (Dkt. 1-31.) Generally, "courts should decline second-guessing an attorney's trial strategy," including whether to call a witness." Samatar v. Clarridge, 225 F. App'x 366, 371 (6th Cir. 2007). In this case, the affidavits do not adequately demonstrate that these men would have testified favorably regarding Petitioner's character, and given that trial counsel called a witness to testify as to Petitioner's character and cross-examined the prosecution's witnesses regarding the victim's character, Petitioner has not demonstrated that the state court unreasonably rejected his Sixth Amendment claim. See Carson v. United States, 3 F. App'x 321, 324 (6th Cir. 2001) (affidavits insufficient to show deficient performance where petitioner alleged ineffective assistance of counsel for failure to call witnesses). Accordingly, Petitioner is not entitled to relief on this ground.
Petitioner argues that counsel should have called a number of witnesses to testify about three specific facts: (1) the victim stole money from Petitioner; (2) the victim and Petitioner had arranged to go to the church on the day of the shooting to meet with a priest concerning the alleged theft of Petitioner's money; and (3) Petitioner intended to go to Detroit on January 23, 2009 to meet with the Liquor Control Commission at his brother Hamid's store and therefore was not in the city solely to confront the victim.
The Michigan Court of Appeals held that these facts were presented at trial through the testimony of Petitioner and his two brothers, and any testimony from the additional witnesses would have been cumulative. Thus, "there [was] no reasonable probability that the outcome would have been different" with more testimony, and counsel was not ineffective. People v. Zora, 2011 WL 2623384, at *7.
As set forth above, whether to call a witness is trial strategy, and absent a showing of prejudice, a court should not second-guess the strategy. Here, even if these witnesses appeared at trial, a substantial amount of evidence related to the events and crime scene negated Petitioner's self-defense claim. United States v. Foreman, 323 F.3d 498, 504-05 (6th Cir. 2003) (dismissing ineffective assistance of counsel claim for failure to present additional witnesses where defendant testified as to facts that other witnesses would address and substantial evidence of guilt was admitted). Thus, Petitioner was not prejudiced by the absence of these witnesses, and the state court's determination that counsel was not ineffective was reasonable. Accordingly, Petitioner is not entitled to habeas relief on this ground.
Petitioner also argues that trial counsel was ineffective for failing to call a self-defense expert to testify about the "21 foot rule," which was allegedly taught to defendant during firearms training and instructs a person to shoot an attacker approaching an individual with a knife or other edged weapon if he or she is within twenty-one feet.
The Michigan Court of Appeals dismissed this claim, finding that Petitioner had "failed to make the necessary showing" that the proposed testimony would have assisted the trier of fact." People v. Zora, 2011 WL 2623384, at *6. Rather, Petitioner's self-defense claim was understandable to the jury without the assistance of an expert, and the testimony would not have been relevant to his self-defense claim. Id.
As aptly stated by the Michigan Court of Appeals, Petitioner has failed to show that an expert was necessary or that the testimony would have been relevant. And given the significant evidence presented suggesting Petitioner's guilt, it was reasonable for the state court to conclude Petitioner was not prejudiced and counsel was not ineffective. See Reynolds v. Bagley, 498 F.3d 549, 557-58 (6th Cir. 2007) (finding as reasonable a state court determination that counsel was not ineffective for failing to call an expert because petitioner suffered no prejudice). Accordingly, Petitioner is not entitled to habeas relief on this ground.
Finally, Petitioner argues that counsel was ineffective for stipulating that no fingerprints, DNA, or blood was found on the knife and fork that were recovered at the crime scene. Counsel was allegedly ineffective because a latent print was discovered on the fork and no testing for DNA or blood was conducted on either instrument. Petitioner also contends that trial counsel was ineffective for failing to present evidence of the latent print because this would have established that the victim had touched the fork and used it to attack him.
In rejecting this claim, the Michigan Court of Appeals noted the stipulation was accurate that the print found on the fork had "no latent prints of comparison value." People v. Zora, 2011 WL 2623384, at *2, 5. And, although the instruments were not tested for blood and DNA, there was no visible evidence of either substance on them. Id. at *5.
Because this same evidence would have been introduced by the prosecution through a lengthier — and perhaps more damaging — process without the stipulation at trial, Petitioner has not demonstrated he was prejudiced by counsel's decision to agree to the stipulation. Burke v. United States, 261 F.Supp.2d 854, 862 (E.D. Mich. 2003). Thus, the state court's determination that counsel was not ineffective is reasonable.
With respect to Petitioner's argument that trial counsel was ineffective for failing to introduce evidence of the latent print, as set forth above, there were no prints obtained from either instruments that could be compared to other individuals' prints. Further, given the substantial amount of evidence admitted that inculpated Petitioner, the latent print would have been immaterial to his conviction. Thus, he cannot demonstrate the outcome of the trial likely would have been different if the latent print were admitted. Accordingly, Petitioner is not entitled to relief on this or his other ineffective assistance of counsel claims.
Petitioner claims he was denied a fair trial because of prosecutorial misconduct. First, the prosecutor allegedly knew Petitioner acted in self-defense, but presented false evidence by asking trial counsel to stipulate that no fingerprints, DNA, or blood evidence was recovered from the knife or barbecue fork. And the prosecutor compounded this error by repeating this claim in his closing argument. Second, the prosecutor allegedly told Petitioner's sister not to appear at trial because the prosecutor knew her testimony would exonerate Petitioner. Third, Petitioner claims the prosecutor misrepresented the evidence when he argued that Petitioner staged the crime scene, including by wiping clean the victim's weapons, so it looked as though he had been attacked. Fourth, the prosecutor falsely argued that Petitioner flipped the victim onto his stomach and then shot him in the back. Fifth, the prosecutor allegedly committed misconduct by arguing there was no evidence corroborating Petitioner's need to be in Detroit on the day of the shooting. Finally, the prosecutor allegedly submitted a false affidavit to the trial court regarding what was argued during opening and closing statements.
"Claims of prosecutorial misconduct are reviewed deferentially on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor's improper conduct will be held to violate a criminal defendant's constitutional rights only if they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153 (2012) (confirming that Donnelly and Darden are the proper standard).
The Michigan Court of Appeals rejected each of these claims on their merits in a clear, reasoned opinion, which the Court will recite verbatim here.
People v. Zora, 2011 WL 2623384, at *1-4.
In renewing his arguments in this petition, Petitioner raises no new arguments, but disagrees with the state court's findings. "[T]he Supreme Court has clearly indicated that the state courts have substantial breathing room when considering prosecutorial misconduct claims because constitutional line drawing in prosecutorial misconduct cases is necessarily imprecise." Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (internal quotation marks and alterations omitted). Because "the Darden standard is a very general one," courts have "more leeway ... in reaching outcomes in case-by-case determinations." Parker, 132 S. Ct. at 2155 (internal quotation marks omitted).
Petitioner has not shown that anything in the record refutes the state court's description of what occurred at trial. And even considering the interview of Austin Matti and the letter from Manal Petros, he has failed to show the state court determination rejecting his prosecutorial misconduct claims was contrary to, or an unreasonable application of, clearly established law. First, as set forth above, Austin Matti's interview indicates that he did not witness the confrontation between Petitioner and the victim and therefore could not support Petitioner's claim of self-defense. Second, Ms. Petros' letter, sent to the trial judge several months after Petitioner's trial does not state whether it was the prosecutor who advised her not to attend the trial. (See Dkt. 1-5.) Indeed, Petitioner's claim that the prosecutor told her to stay away is inconsistent with Ms. Petros' admission that the prosecutor subpoenaed her for trial. And, as set forth above, she did not witness the confrontation between her husband and Petitioner, and therefore could not support Petitioner's claim of self-defense. Thus, Petitioner has failed to demonstrate he was prejudiced by the prosecutor's conduct and that the state court determination was unreasonable.
Finally, even if the prosecutor submitted a misleading or incomplete affidavit to oppose Petitioner's state post-conviction relief motion, Petitioner has not demonstrated he was harmed by the affidavit. And, as set forth above, the state courts reviewed the transcripts of what was argued during opening and closing statements and found any misconduct not to have prejudiced Petitioner.
Accordingly, Petitioner is not entitled to habeas relief on his claims of prosecutorial misconduct.
Petitioner claims the prosecutor failed to disclose the forensic report with information about the latent print found on the barbecue fork, and this led defense counsel to erroneously agree to the stipulation. He also claims that the prosecutor wrongfully delayed the DNA testing of the victim's clothing and then withheld the result until after the trial. Finally, Petitioner alleges the prosecutor "concealed" the interview of Austin Matti and Petitioner's phone records that supposedly corroborated that he was in Detroit for meetings on the day the victim was killed there. (Dkt. 1-1 at 42.)
The Michigan Court of Appeals rejected the first of these claims on the merits.
People v. Zora, 2011 WL 2623384, at *3.
A habeas petitioner bears the burden of showing the prosecution withheld exculpatory evidence. See Bell v. Howes, 703 F.3d 848, 853 (6th Cir. 2012). Here, Petitioner has made only conclusory statements that the prosecutor concealed the forensic report. In fact, defense counsel admitted he may have received it but misplaced it. Thus, Petitioner has not demonstrated that the prosecutor concealed the report, and therefore failed to show that the state court determination rejecting his claim was contrary to, or an unreasonable application of, clearly established law.
Similarly, Petitioner has not provided any evidence to show the prosecutor withheld or delayed the DNA testing of the victim's clothes, the police report and interview of Austin Matti, or his cell phone records. Even if the prosecutor did withhold these documents, Petitioner has not demonstrated that the evidence provided would be exculpatory or material to his guilt. Brady v. Maryland, 373 U.S. 83, 87 (1963) (defendant must show that the state withheld exculpatory evidence and that the evidence was material either to guilt or to punishment irrespective of good faith or bad faith of the prosecution). Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 683 (1985).
The "cumulative effect of the [allegedly undisclosed] evidence" was not material to Petitioner's conviction. See Kyles v. Whitley, 514 U.S. 419, 440 (1995) (cumulative effect of evidence is the "touchstone" of assessing materiality of Brady violations). First, if the DNA report says, as Petitioner contends, there was blood on the clothing, it undermines his own testimony that the victim never stabbed or injured anyone. Thus, the report would not necessarily exculpate him, and if introduced at trial, it may have only damaged his credibility and his self-defense theory. Second, as set forth above, Austin Matti's interview would not exonerate Petitioner. Finally, the cell phone records may establish that Petitioner had a reason to be in Detroit, but they do not directly address the confrontation between Petitioner and the victim. Thus, these three pieces of information, when viewed together, show there is not a reasonable probability they would undermine confidence in the guilty verdict — or even support Petitioner's self-defense claim — especially given the substantial amount of evidence admitted that suggested Petitioner's guilt.
Accordingly, Petitioner is not entitled to habeas relief on his Brady violation claims.
Petitioner claims that the jurors were biased against him because he was Chaldean. Petitioner raised similar jury bias claims on direct appeal, but did not present this specific claim to the state courts. However, because the Court can determine the claim lacks merit, the Court will address the claim and deny relief.
To support his claim, Petitioner has presented the affidavit of Dale Barr, dated March 27, 2013. (Dkt. 1-16.) Mr. Barr served as an alternate juror during Petitioner's trial. He claims that during the trial, a seated juror commented, "[T]hose people can't control themselves even when they are in the courthouse." (Id. at 2.) The comment was allegedly made after the jurors witnessed a fight at the courthouse between "some individuals who resembled people of Middle Eastern decent [sic]." (Id.) Mr. Barr further claims, "From my experience with and among the jurors at Mr. Zora's trial, the jurors as a whole relied upon a discriminatory presumption against Mr. Zora that, because Mr. Zora is Chaldean/Middle Eastern and because of the money that Mr. Zora alleged was stolen from him, Mr. Zora must have made that money illegally and, therefore, must be guilty." (Id.)
Petitioner is not entitled to relief on this claim. "[T]he partiality of a petit jury is evaluated in light of the persons who are ultimately empaneled and sworn, and not by those who are excused from service." Dell v. Straub, 194 F.Supp.2d 629, 655 (E.D. Mich. 2002). Here, the juror who allegedly commented about "those people" was removed for cause before the jury was empaneled and sworn. See People v. Zora, 2011 WL 2623384, at *7. Thus, this potential juror's comments cannot be used to evaluate any bias of the jury that deliberated and convicted Petitioner. Dell, 194 F. Supp. 2d at 655.
Petitioner's remaining bias claim regarding the "jury as a whole" is unsupported. First, "[b]ias in this context is `actual bias,' or bias in fact," and a "petitioner must show that the jurors were actually biased against him." Holder v. Palmer, 586 F.3d 328, 339 (6th Cir. 2009). Mr. Barr's affidavit provides no more than a conclusory statement about his belief that the jury was biased against Petitioner, and Petitioner has provided no additional information to support his claim. Second, Mr. Barr was an alternate juror and did not participate in deliberations, and his affidavit is therefore insufficient to establish the jury was biased against Petitioner. See Mason v. Mitchell, 320 F.3d 604, 637 (6th Cir. 2003). In sum, the record does not show Petitioner was denied a fair trial, see id., and Petitioner is not entitled to relief on his jury bias claims.
Petitioner contends he is entitled to habeas relief because of cumulative error. The Sixth Circuit has held, however, that "not even constitutional errors that would not individually support habeas relief can be cumulated to support habeas relief." Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Even if the Court did consider the alleged errors cumulatively, Petitioner's claim would fail because of the substantial amount of evidence of his guilt admitted at trial. Accordingly, Petitioner is not entitled to habeas relief on the grounds of cumulative error. Id.
Petitioner has filed a motion for an evidentiary hearing. "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro, 550 U.S. at 474. But "a petition may be summarily dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit." Stanford v. Parker, 266 F.3d 442, 459-60 (6th Cir. 2001) (citing Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994)).
As set forth above, Petitioner's claims lack merit, and he is therefore not entitled to an evidentiary hearing. Petitioner's motion for an evidentiary hearing is denied.
The Court will deny the petition for writ of habeas corpus on its merits. And the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F.Supp.2d 846, 875 (E.D. Mich. 2010). To obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial after a district court has rejected a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons stated in this opinion, Petitioner has failed to make a substantial showing of the denial of his constitutional rights, and the Court will therefore deny Petitioner a certificate of appealability.
Accordingly, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE. (Dkt. 1.) The motion for an evidentiary hearing (Dkt. 9) is DENIED. A certificate of appealability is DENIED.
IT IS SO ORDERED.
