JUDITH E. LEVY, District Judge.
Petitioner Travis Quan Owens, confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Dkt. 1.) In his application, Petitioner challenges his conviction of armed robbery, MICH. COMP. LAWS § 750.529, on six grounds.
For the reasons set forth below, the petition for a writ of habeas corpus is denied.
Petitioner was convicted of armed robbery following a jury trial in the Oakland County Circuit Court, and sentenced as a habitual offender, fourth offense, to a term of twenty to forty years. People v. Owens, No. 29-7315, 2011 WL 2464193, at *1 (Mich. Ct. App. June 21, 2011). This Court relies on the facts recited by the trial court, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1):
(Opinion and Order, Oakland Cty. Cir. Ct. (Mar. 8, 2013).)
Petitioner's conviction was affirmed on appeal. Owens, 2011 WL 2464193. The Michigan Supreme Court denied his application for leave to appeal. People v. Owens, 490 Mich. 913 (2011).
Petitioner then filed a post-conviction motion for relief from judgment pursuant to MICH. CT. R. 6.500, which was denied. People v. Owens, No. 09-226671-FC (Oakland Cty. Cir. Ct. Mar. 8, 2013). The Michigan appellate courts denied Petitioner leave to appeal. People v. Owens, No. 318067 (Mich. Ct. App. Mar. 14, 2014); lv. den. 497 Mich. 902 (2014); reconsideration den. 497 Mich. 956 (2015).
Petitioner seeks a writ of habeas corpus on the following grounds:
(Dkt. 1 at 10.)
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:
"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 v. Taylor, 529 U.S. 362, 405-06 (2000)). An unreasonable application occurs when the state court's decision is "more than incorrect or erroneous"; "the state court's application must have been `objectively unreasonable.'" White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702 (2014) (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
"AEDPA [] 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); see also Renico, 559 U.S. at 773 n.1 (noting that the Supreme Court has historically viewed AEDPA's standard for reviewing state court decisions as "deferential"). Thus, pursuant to section 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. Harrington v. Richter, 562 U.S. 86, 102 (2011). "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." Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1151 (2016) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Finally, habeas relief is not appropriate "unless each ground that supported the state court's decision is examined and found to be unreasonable under the AEDPA." Wetzel v. Lambert, 565 U.S. 520, 525 (2012) (emphasis in original).
Respondent argues that this petition is barred by the statute of limitations because it was not filed within the one-year statute of limitations period imposed by 28 U.S.C. § 2244(d)(1). Further, Respondent argues that Petitioner is not entitled to equitable tolling because his state-court collateral attack was filed after the one-year statute of limitations expired. (Dkt. 5 at 31-38.) Respondent also argues that Petitioner has defaulted his third, fourth, and fifth claims because he failed to raise the claims on direct appeal. (Dkt. 5 at 39.)
Although the issue of whether a claim is procedurally barred should ordinarily be resolved first, "judicial economy might counsel giving the [merits] question priority," such as where the merits issue is "easily resolvable" and the procedural bar involves "complicated issues of state law." Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015). And because the statute of limitations is not a jurisdictional bar to habeas review, a federal court may, in the interest of judicial economy, proceed to the merits of a habeas petition. LaMar v. Houk, 798 F.3d 405, 415 (6th Cir. 2015).
Here, the petition is resolvable against Petitioner on the merits regardless of the timeliness of the petition. Accordingly, the Court will assume the petition was timely and proceed to the other procedural default and merits arguments. See Ahart v. Bradshaw, 122 F. App'x 188, 192 (6th Cir. 2005).
Petitioner alleges that trial counsel was ineffective by 1) failing to object to the prosecutor vouching for a witness and making improper civic duty statements during closing arguments, 2) failing to obtain an expert witness to enhance the digital video footage, 3) failing to investigate Petitioner's competence to stand trial, and 4) inadequately responding to a juror who was allegedly asleep during trial. (Dkt. 1 at 10.)
To show that he was denied the effective assistance of counsel under federal constitutional standards, a petitioner must satisfy a two-prong test. First, the petitioner must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed 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 behavior falls within the wide range of reasonable professional assistance. Id. at 689. In other words, a petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Id. Second, the petitioner must show that such performance prejudiced his defense. Id. at 692. To demonstrate prejudice, a petitioner bears the burden of showing 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; see Harrington 562 U.S. at 111.
More importantly, on habeas review, "the 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)). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington, 562 U.S. at 101. Furthermore, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In his first claim, Petitioner alleges that the prosecutor vouched for the victim's testimony and made civic-duty arguments during closing argument.
Petitioner cites to a comment made by the prosecutor during closing argument, which is as follows:
(Dkt. 1 at 21 (quoting JT 242-43).)
A prosecutor may not express a personal opinion concerning the guilt of a defendant or the credibility of trial witnesses, because doing so "invit[es] the jurors to convict the defendant on a basis other than a neutral independent assessment of the record proof," Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999) (internal citations omitted), and it "may induce the jury to trust the Government's judgment rather than its own view of the evidence." Wogenstahl v. Mitchell, 668 F.3d 307, 332 (6th Cir. 2012). However, a prosecutor is free to argue that the jury should arrive at a particular conclusion based upon the record evidence. Caldwell, 181 F.3d at 737. The test for improper vouching for a witness is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987). "[G]enerally, improper vouching involves either blunt comments, or comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony." Wogenstahl, 688 F.3d at 328 (quoting United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)). It is exceedingly rare for the Sixth Circuit to grant habeas relief on an improper vouching claim. See generally Byrd v. Collins, 209 F.3d 486, 537, n. 43 (6th Cir. 2000). Moreover, "the Supreme Court has never specifically held that a prosecutor's vouching for the credibility of a witness resulted in a denial of due process." Wilson v. Bell, 368 F. App'x 627, 632 n. 3 (6th Cir. 2010). Even on direct appeal from a federal conviction, the Sixth Circuit has held that to constitute reversible error, a prosecutor's alleged misconduct of arguing his or her personal belief, in a witness' credibility or in a defendant's guilt, must be flagrant and not isolated. United States v. Humphrey, 287 F.3d 422, 433 (6th Cir. 2002).
In rejecting Petitioner's claim that the prosecutor improperly vouched for the witness, the Michigan Court of Appeals stated the following:
Owens, 2011 WL 2464193, at *1.
As set forth by the court of appeals, the prosecutor did not imply that he had any special knowledge about the victim that had not been presented to the jury. When viewed in context, the prosecutor was arguing that his witness has no reason or motivation to lie, and should be found credible given the facts of the incident presented at trial. Thus, the prosecutor was not improperly vouching for the witness, and it was not objectively unreasonable for trial counsel not to object to these statements. See Wilson v. Bell, 368 F. App'x 627, 636 (6th Cir. 2010).
Petitioner next alleges that trial counsel was ineffective by failing to object to the prosecutor's "civic duty" statements, arguing the following were improper because they implied the jurors needed to convict Petitioner of the higher charge, as he was a danger to the community:
(Dkt. 1 at 8-9.)
The Sixth Circuit has held that "[u]nless calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as the community conscience are not per se impermissible." Byrd, 209 F.3d at 539 (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)).
The Michigan Court of Appeals rejected Petitioner's argument that the prosecutor's remarks were improper:
Owens, 2011 WL 2464193, at *1.
Having reviewed the record, the Court concludes that the Michigan Court of Appeals reasonably applied federal law to the misconduct claim. The prosecutor's remarks were focused on holding Petitioner responsible for conduct reflected in the evidence presented at trial. Additionally, the trial court's instruction to the jury that (1) the verdict should be based only on the evidence properly admitted during trial, (2) the prosecutor's statements and arguments are not evidence, and (3) they must not let prejudice or sympathy influence their decision (JT, pp. 259-263), defeats Petitioner's claim. See Knapp v. White, 296 F.Supp.2d 766, 776 (E.D. Mich. 2003).
Accordingly, trial counsel's failure to object was not objectively unreasonable, and Petitioner is not entitled to relief on this claim.
In his third claim, Petitioner argues that trial counsel was ineffective for failing to obtain an expert witness to enhance the digital video footage of the robbery, which allegedly would have shown that Petitioner was carrying a money bag and not a knife.
Respondent argues that Petitioner's third to fifth claims are procedurally defaulted because he failed to raise them on direct review. Petitioner first raised these claims in his postconviction motion for relief from judgment, and the state trial judge denied them, in part because Petitioner failed to show cause and prejudice, as required by MICH. CT. R. 6.508(D)(3), to excuse the fact that these claims were not raised in the direct appeal. (Dkt. 6-7.)
"A federal court will not review the merits of claims . . . that a state court declined to hear because the prisoner failed to abide by a state procedural rule" provided that the procedural rule is an adequate and independent state ground. Martinez v. Ryan, 566 U.S. 1, 9 (2012). To be an adequate and independent state ground, the procedural rule must be "adequate to support the judgment and . . . firmly established and consistently followed." Id. If the state court bases its decision on a such a rule, "[a] state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show `cause' to excuse his failure to comply with the state procedural rule and `actual prejudice resulting from the alleged constitutional violation.'" Davila v. Davis, ___ U.S. ___, 137 S.Ct. 2058, 2064-2065 (2017) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).
The Sixth Circuit has held that MICH. CT. R. 6.508(D)(3) is an adequate and independent state ground for procedural default. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (describing MICH. CT. R. 6.508(D)(3) as a "procedural-default rule"). Petitioner could have brought his ineffective assistance claims on direct review, but did not do so, as required by Michigan procedural rules, and is therefore procedurally defaulted unless he can demonstrate cause and prejudice.
First, with respect to the claim that trial counsel was ineffective for failing to obtain an expert, Petitioner attached an affidavit to his application for leave to appeal the denial of the motion for postconviction relief to the Michigan Supreme Court, and references it in his petition. (See Dkt. 6-11; Dkt. 1 at 29.) No such affidavit was presented to the trial court,
Petitioner has submitted no evidence to indicate that an expert was available, would testify in his favor, or what the testimony would be. And a habeas petitioner's claim that trial counsel was ineffective for failing to call an expert witness cannot be based on speculation; it must be supported by evidence demonstrating the effect that the expert would have on the outcome. See Kelly v. McKee, No. 16-1572, 2017 WL 2831019 at *5 (6th Cir. January 24, 2017); Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Thus, Petitioner has not demonstrated that his claim that an expert would help him has merit and that trial counsel was ineffective for failing to obtain an expert. Accordingly, Petitioner has not shown prejudice to excuse his default.
In his fourth claim, Petitioner argues that trial counsel failed to request a forensic center evaluation for competence, knowing that "Petitioner was under the influence of such psychotropic medications as Seroquil, and an additional antidepressant medication." (Dkt. 1 at 20.)
A defendant may not be put to trial unless he or she has a sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding, and a rational—as well as a factual—understanding of the proceedings against him. Ryan v. Gonzales, 568 U.S. 57, 66 (2013). A state may presume that a defendant is competent to stand trial and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Cooper v. Oklahoma, 517 U.S. 348, 355 (1996). The Supreme Court has "repeatedly and consistently recognized that the criminal trial of an incompetent defendant violates due process," Ryan, 568 U.S. at 65 (quoting Cooper, 517 U.S. at 354). Thus, a habeas petitioner may make a procedural due process claim based on competency by alleging that the state trial court failed to conduct a competency hearing after the petitioner's mental competency was put in issue. See, e.g., Wade v. Romanowski, 12-14713, 2016 WL 1573261 (E.D. Mich. April 19, 2016). However, to succeed on the procedural claim, a habeas petitioner must demonstrate that the state "court's application of law to facts [in a competency hearing] was objectively unreasonable," Finley v. Rogers, 116 Fed. App'x 630, 635 (6th Cir. 2004), and that the trial court's decision was "clearly wrong." Franklin v. Bradshaw, 695 F.3d 439, 449 (6th Cir. 2012).
A full competency hearing is necessary only when a court has a reason to doubt a defendant's competency to stand trial. See United States v. Pitts, No. 16-2787, 2017 WL 2820944, at *3 (6th Cir. Apr. 28, 2017). "The due-process right to a fair trial is violated by a court's failure to hold a proper competency hearing where there is substantial evidence of a defendant's incompetency." Franklin, 695 F.3d at 447. The question for a reviewing court is "[w]hether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial." Mackey v. Dutton, 217 F.3d 399, 413-14 (6th Cir. 2000) (quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir. 1983)) (additional quotation omitted).
At the time of trial, Michigan law stated that a defendant was presumed competent, and the proper medical use of psychotropic drugs or other medications would not deem a defendant incompetent to stand trial. MICH. COMP. LAWS §§ 330.2020(1), (2).
Here, Petitioner has never alleged that the various medications rendered him incompetent to stand trial. He has also failed to provide evidence that the alleged medications rendered him incompetent either at the beginning or during his trial, and failed to provide an affidavit from trial counsel to substantiate his claim that he informed counsel of his medications, and that the medications rendered him incompetent to stand trial. Speculation alone is insufficient to demonstrate prejudice. Hodge v. Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009). This is especially true given that a state court's finding of competency is entitled to a presumption of correctness unless a petitioner provides clear and convincing evidence to the contrary. Mackey, 217 F.3d 412. And, again, Petitioner has presented no evidence to rebut the findings of the trial court. Accordingly, Petitioner cannot show prejudice to excuse his procedural default of this claim.
In his fifth claim, Petitioner argues that he was denied his due process rights when a juror slept through a portion of the proceedings. Petitioner further claims that trial counsel was ineffective for failing to adequately bring this to the judge's attention.
A state trial court's factual determination that a juror did not sleep during a habeas petitioner's trial is presumed correct absent clear and convincing evidence to the contrary. See Mason v. Mitchell, 320 F.3d 604, 637 (6th Cir. 2003).
The trial court rejected Petitioner's due process claim as follows:
Owens, 09-226671-FC, 9-10.
Petitioner has failed to offer any clear and convincing evidence to rebut the trial court judge's factual determination that none of the jurors slept through the trial. This Court must therefore defer to the trial court judge's factual determination. Because Petitioner has failed to show that any jurors slept through his trial, Petitioner is unable to establish prejudice that would excuse his procedural default. See United States v. Terfa, 12 F. Appx 308, 310 (6th Cir. 2001). Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner contends that appellate counsel was ineffective for failing to raise his third through fifth claims (discussed above) in his direct appeal.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel on the first appeal by right. Lafler v. Cooper, 566 U.S. 156, 165 (2012); Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, court-appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Davila v. Davis, ___ U.S. ___, 137 S.Ct. 2058, 2067 (2017).
As set forth above, Petitioner has failed to show prejudice to excuse his procedural default because the claims lack merit. Accordingly, Petitioner has not established that appellate counsel's failure to raise the claims on direct appeal was objectively unreasonable, and is not entitled to relief on this claim. See Martin v. Mitchell, 280 F.3d 594, 606 (6th Cir. 2002) (noting that ineffective assistance of appellate counsel cannot constitute cause if the underlying claims have no merit).
In his final claim, Petitioner argues that the trial court judge violated his due process rights by failing to properly administer the jury oath. Petitioner presented this claim as a "new" claim before the Michigan Supreme Court, and did not present it to the trial court or court of appeals. (Dkt. 6-11 at 35.)
A habeas petitioner must exhaust remedies in the state courts by fairly presenting the federal claims at the first possible opportunity within "one complete round of the State's established appellate review process." Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (internal quotations omitted); see 28 U.S.C. § 2254(b)(1).
In this case, Petitioner filed his motion for relief from judgment in the trial court, and no longer has an available state court remedy. MICH. CT. R. 6.502(G); 28 U.S.C. § 2254(c). And when a prisoner fails to present his or her claims to the state courts, and has no remaining state remedy, the claims are considered exhausted by procedural default. Kelly v. Lazaroff, 846 F.3d 819, 827-28 (6th Cir. 2017). Importantly, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim." Id. at 828 (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Because Petitioner presents this claim for the first time to the Michigan Supreme Court the claim is procedurally defaulted, and cannot be reviewed in a federal habeas corpus petition. See id.
Even if the claim was not procedurally barred and the trial court judge did not properly administer the jury oath, Petitioner would not be entitled to habeas relief. There is no Supreme Court precedent establishing a federal constitutional right that requires a state trial court to administer an oath to an empaneled jury. See Baldwin v. State of Kansas, 129 U.S. 52, 56 (1889) (finding no federal issue in the allegedly improper swearing of a state court jury); Spearman v. Birkett, Case No. 05-40006, 2006 WL 6032120, at *11 (E.D. Mich. Mar. 31, 2006) (petitioner not entitled to habeas relief based on the jury being given a defective oath in his state court prosecution, in the absence of any federal case law which requires that "a particular form of oath be sworn to by the jurors as a matter of federal constitutional law"); Rodriguez v. Brown, No. 11-1246, 2011 WL 4073748, at *9-10 (E.D.N.Y. Sept. 13, 2011) (habeas petitioner not entitled to habeas relief on claim jurors not properly sworn in at his state court trial, because "there is no Supreme Court mandate regarding the proper method of administering an oath to a jury"); Pinkney v. Senkowski, Case No. 03-4820, 2006 WL 3208595, at *6 (S.D.N.Y. Nov. 3, 2006) (holding that even if petitioner established that the jurors in his state court criminal case had not been properly sworn in, he would not be entitled to habeas relief because "the writ may be granted only to remedy a violation of federal law").
Given that the Supreme Court has never found that a state trial court is required to administer an oath to an empaneled jury, the rejection of Petitioner's improper jury oath claim by the Michigan Supreme Court would not be an unreasonable application of clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 (2006). Accordingly, Petitioner is not entitled to relief on this claim.
For the reason set forth above, the Court will deny the petition for a writ of habeas corpus.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability ("COA") is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
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), which is satisfied only if reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
For the reasons set forth above, reasonable jurists would not find this Court's assessment of Petitioner's claims to be debatable or wrong, and Petitioner is not entitled to a certificate of appealability. See Millender v. Adams, 187 F.Supp.2d 852, 880 (E.D. Mich. 2002).
The Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
For the reasons set forth above, the Court DENIES WITH PREJUDICE the petition for a writ of habeas corpus. (Dkt. 1.)
The Court further DENIES a certificate of appealability and leave to appeal in forma pauperis.
IT IS SO ORDERED.
People v. Owens, No. 09-226671-FC, 6.
