TERRENCE G. BERG, District Judge.
Keith Charleston, ("petitioner"), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. For the reasons stated below, the application for a writ of habeas corpus is
Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, 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. Charleston, No. 316771, 2015 WL 1119720, at * 1, 5 (Mich. Ct. App. Mar. 12, 2015).
Petitioner's conviction was affirmed. Id., lv. Den. 498 Mich. 884, 869 N.W.2d 587 (2015). Petitioner seeks a writ of habeas corpus on the following grounds:
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 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 decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. 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. "[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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 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.
Petitioner contends that the trial judge erred in denying his motion to suppress because he did not voluntarily speak with the police nor did he knowingly, intelligently, or voluntarily waive his Miranda rights. Petitioner claims that he did not knowingly, intelligently or voluntarily waive his Miranda rights and that his confession was involuntary because he was intoxicated on alcohol and marijuana and was sleep-deprived at the time he made his statement.
The Court notes that the Michigan Court of Appeals reviewed and rejected the portion of petitioner's claim that he did not knowingly and intelligently waive his Miranda rights for plain error because petitioner failed to preserve this issue in the trial court in that petitioner only argued in his motion to suppress that his statement was involuntary. People v. Charleston, 2015 WL 1119720, at * 1.
In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth Circuit held that the AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. In a subsequent decision, the Sixth Circuit held that that plain-error review is not equivalent to adjudication on the merits, so as to trigger AEDPA deference. See Frazier v. Jenkins, 770 F.3d 485, 496 n. 5 (6th Cir. 2014). The Sixth Circuit noted that "the approaches of Fleming and Frazier are in direct conflict." Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When confronted by conflicting holdings of the Sixth Circuit, this Court must follow the earlier panel's holding until it is overruled by the United States Supreme Court or by the Sixth Circuit sitting en banc. See Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court believes that the AEDPA's deferential standard of review applies to the Miranda waiver portion of petitioner's claim even though this portion of the claim was reviewed only for plain error.
The Michigan Court of Appeals rejected petitioner's claim:
People v. Charleston, 2015 WL 1119720, at * 2-3 (internal citations omitted).
In considering federal habeas petitions, a federal district court must presume the correctness of state court factual determinations, and a habeas petitioner may rebut this presumption only with clear and convincing evidence. Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001); 28 U.S.C. § 2254(e)(1). Subsidiary factual questions in determining the voluntariness of a statement to police, such as whether the police engaged in intimidation tactics alleged by a habeas petitioner, are entitled to the presumption of correctness accorded to state court findings of fact. Miller v. Fenton, 474 U.S. 104, 112 (1985). Likewise, whether a defendant understood his or her Miranda rights is a question of fact underlying the question of whether his waiver of those rights was knowing and intelligent. Thus, on federal habeas review, a federal court has to presume that the state court's factual finding that a defendant fully understood what was being said and asked of him was correct unless the petitioner shows otherwise by clear and convincing evidence. Williams v. Jones, 117 F. App'x. 406, 412 (6th Cir. 2004); See also Terry v. Bock, 208 F.Supp.2d 780, 789 (E.D. Mich. 2002).
A defendant's waiver of his Miranda rights is considered valid if it is voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966). Coercive police activity is a necessary predicate to finding that a defendant's waiver of his Miranda rights was involuntary. Colorado v. Connelly, 479 U.S. 157, 167, 169-70 (1986). A defendant's deficient mental condition, by itself, is insufficient to render a waiver involuntary. Id. at 164-65. "[W]hile mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." Connelly, 479 U.S. at 165.
Likewise, in determining whether a confession is voluntary, the ultimate question for a court is "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." Miller v. Fenton, 474 U.S. at 112. These circumstances include:
Withrow v. Williams, 507 U.S. 680, 693-94 (1993).
All of the factors involved in the giving of the statement should be closely scrutinized. Culombe v. Connecticut, 367 U.S. 568, 602 (1961). However, without coercive police activity, a confession should not be deemed involuntary. Colorado v. Connelly, 479 U.S. at 167.
Petitioner's primary contention is that he did not knowingly or intelligently waive his Fifth Amendment rights or voluntarily speak with the police because he was intoxicated. Petitioner testified at the Walker hearing that he was intoxicated at the time of his arrest and at the time of his subsequent interrogation. However, Officer Maye testified that petitioner did not appear to be intoxicated or fatigued; did not slur his speech nor were his eyes bloodshot; did not look confused or disoriented. On the contrary, Officer Maye testified that Petitioner was coherent and able to understand the conversation. The trial court judge made a factual finding, both from the testimony and from watching, listening, and observing 20 minutes of Petitioner's demeanor and responses during the first portion of the videotaped interrogation, that there was no evidence that petitioner was intoxicated at the time he waived his Miranda rights and agreed to speak with Officer Maye. In this case, the denial of petitioner's motion to suppress his confession on the ground that it was involuntary due to petitioner's alleged intoxication does not warrant federal habeas relief where the trial court, as trier of fact, was required to decide between two differing accounts of what transpired and found from the testimony of Officer Maye and the videotaped recording of the interview that there was no evidence that petitioner was intoxicated when he made his statement to the police. See DePew v. Anderson, 311 F.3d 742, 753 (6th Cir. 2002). More importantly, petitioner does not allege, nor does he show, that the police engaged in any coercive activity. Because there is no evidence that petitioner was still intoxicated at the time that he spoke with the police, combined with the absence of any evidence of police coercion, petitioner cannot show that his confession should have been suppressed merely because he claimed to be intoxicated. See Abela v. Martin, 380 F.3d 915, 928 (6th Cir. 2004).
Petitioner further contends that his confession should have been suppressed because he was sleep-deprived. Officer Maye testified that petitioner did not appear tired when he spoke to petitioner. Petitioner appeared to be lucid and coherent during the interview. Petitioner himself admitted that he slept eight hours the night before the police interrogation. The judge concluded after reviewing the videotape of the interview that petitioner appeared lucid. Although petitioner claimed to be sleep-deprived, in light of the fact that petitioner appeared lucid and coherent during the police interrogation, the judge's determination that petitioner's waiver of his Miranda rights was knowingly, intelligently, and voluntarily made was a reasonable determination that defeats petitioner's claim. See United States v. Hampton, 572 F. App'x. 430, 434-435 (6th Cir. 2014).
Based upon the totality of the circumstances in this case, it was objectively reasonable for the Michigan Court of Appeals to hold that petitioner's statement to the police was voluntary. See McCalvin v. Yukins, 444 F.3d 713, 720 (6th Cir. 2006). Petitioner was advised of his Miranda rights. Petitioner was 29 years old and had completed the ninth grade. Petitioner was not denied food or water during the interview and had a juice carton in his possession at the time of the interview. Petitioner slept for at least eight hours the night before the police interview. There was no prolonged delay between petitioner's arrest and the interrogation or evidence that the interview took place over a long period of time. The judge made a factual determination that petitioner was not intoxicated or tired at the time of the interrogation. Under the deference required by the AEDPA, and given the factors supporting a finding that petitioner's confession was voluntary, the decision of the Michigan Court of Appeals in finding petitioner's confession to have been voluntary was a reasonable application of federal law. McCalvin, 444 F. 3d at 720. Petitioner is not entitled to relief on his first claim.
Petitioner next contends that there was insufficient evidence to convict him of first-degree murder because the prosecutor failed to prove the requisite elements of premeditation and deliberation and failed to disprove petitioner's self-defense claim.
It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, 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. Id. at 318-19 (internal citation and footnote omitted) (emphasis in original).
More importantly, a federal habeas court may not overturn a state court decision that rejects a sufficiency of the evidence claim simply because the federal court disagrees with the state court's resolution of that claim. Instead, a federal court may grant habeas relief only if the state court decision was an objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). "Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold." Id. Indeed, for a federal habeas court reviewing a state court conviction, "the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). The Court does not apply the reasonable doubt standard when determining the sufficiency of evidence on habeas review. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).
To constitute first-degree murder in Michigan, the state must establish that a defendant's intentional killing of another was deliberated and premeditated. See Scott v. Elo, 302 F.3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194 Mich.App. 158; 486 N.W.2d 312, 318 (1992)). The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing. See Johnson v. Hofbauer, 159 F.Supp.2d 582, 596 (E.D. Mich. 2001) (citing People v. Anderson, 209 Mich.App. 527, 537; 531 N.W.2d 780 (1995)). Premeditation may be established through evidence of the following factors:
Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004); Anderson, 209 Mich. App. at 527.
Although the minimum time required under Michigan law to premeditate "is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" See Williams v. Jones, 231 F.Supp.2d 586, 594-95 (E.D. Mich. 2002) (quoting People v. Vail, 393 Mich. 460, 469; 227 N.W.2d 535 (1975)). "A few seconds between the antagonistic action between the defendant and the victim and the defendant's decision to murder the victim may be sufficient to create a jury question on the issue of premeditation." Alder v. Burt, 240 F.Supp.2d 651, 663 (E.D. Mich. 2003). "[A]n opportunity for a `second look' may occur in a matter of seconds, minutes, or hours, depending upon the totality of the circumstances surrounding the killing." Johnson, 159 F. Supp. 2d at 596 (quoting People v. Berthiaume, 59 Mich.App. 451, 456 (1975)). Premeditation and deliberation may be inferred from the type of weapon used and the location of the wounds inflicted. See People v. Berry, 198 Mich.App. 123, 128; 497 N.W.2d 202 (1993). Use of a lethal weapon will support an inference of an intent to kill. Johnson, 159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich.App. 467, 470; 233 N.W.2d 617 (1975)).
In the present case, there was sufficient evidence for a rational trier of fact to conclude that petitioner acted with premeditation and deliberation when he shot the victim. The evidence established that petitioner had been engaged in an argument and a physical altercation with the victim and the victim's friend prior to the shooting. Evidence that petitioner had a prior dispute with the victim or his friend supports a reasonable inference that the subsequent shooting was premeditated. Scott, 302 F.3d at 603. Petitioner's act of leaving the crime scene, retrieving a firearm and returning to the scene to shoot the victim also supports a finding of premeditation. See People v. Taylor, 133 Mich.App. 762, 764-65; 350 N.W.2d 318 (1984). There was also testimony that petitioner fired multiple gunshots, which would also be sufficient to establish premeditation and deliberation. See Thomas v. McKee, 571 F. App'x. 403, 407 (6th Cir. 2014). The fact that petitioner fled the scene afterwards also supports a finding of premeditation. See e.g. Marsack v. Howes, 300 F.Supp.2d 483, 492 (E.D. Mich. 2004). Finally, pursuant to the doctrine of transferred intent, petitioner could be liable for the victim's death, even if he intended to kill Mr. Helzer but killed the victim instead. See People v. Youngblood, 165 Mich.App. 381, 388; 418 N.W.2d 472 (1988).
Petitioner further claims that the prosecutor failed to disprove petitioner's self-defense claim.
Petitioner's claim is non-cognizable on habeas review. Under Michigan law, self-defense is an affirmative defense. See People v. Dupree, 486 Mich. 693, 704, 712; 788 N.W.2d 399 (2010). "An affirmative defense, like self-defense, `admits the crime but seeks to excuse or justify its commission. It does not negate specific elements of the crime.'" People v. Reese, 491 Mich. 127, 155, n. 76; 815 N.W.2d 85 (2012) (quoting Dupree, 486 Mich. at 704, n. 11). Although under Michigan law the prosecutor is required to disprove a claim of self-defense, See People v. Watts, 61 Mich.App. 309, 311; 232 N.W.2d 396, 398 (1975), "[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required. . . ." See Smith v. United States, 133 S.Ct. 714, 719 (2013) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977)). The Supreme Court and the Court of Appeals for the Sixth Circuit have rejected the argument that the Constitution requires the prosecution to disprove self-defense beyond a reasonable doubt. See Gilmore v. Taylor, 508 U.S. 333, 359 (1993) (Blackmun, J., dissenting) ("In those States in which self-defense is an affirmative defense to murder, the Constitution does not require that the prosecution disprove self-defense beyond a reasonable doubt"); Martin v. Ohio, 480 U.S. 228, 233-36 (1987); see also Allen v. Redman, 858 F.2d 1194, 1197 (6th Cir. 1988) (explaining that habeas review of sufficiency-of-the-evidence claims is limited to elements of the crimes as defined by state law and citing Engle v. Isaac, 456 U.S. 107 (1982), and Duffy v. Foltz, 804 F.2d 50 (6th Cir. 1986)). Therefore, "the due process `sufficient evidence' guarantee does not implicate affirmative defenses, because proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime." Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999). As such, petitioner's claim that the prosecutor failed to disprove his affirmative defense is non-cognizable on habeas review. Id.; Allen v. Redman, 858 F.2d at 1200.
Moreover, even if this Court were to determine that petitioner's claim was cognizable, he would not be entitled to habeas relief. Under Michigan law, one acts lawfully in self-defense if he or she honestly and reasonably believes that he or she is in danger of serious bodily harm or death, as judged by the circumstances as they appeared to the defendant at the time of the act. Blanton v. Elo, 186 F.3d 712, 713, n.1 (6th Cir. 1999) (citing People v. Heflin, 434 Mich. 482; 456 N.W.2d 10 (1990)). To be lawful self-defense, the evidence must show that: (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 Johnigan v. Elo, 207 F.Supp.2d 599, 608-09 (E.D. Mich. 2002) (citing People v. Barker, 437 Mich. 161, 165; 468 N.W.2d 492 (1991); People v. Kemp, 202 Mich.App. 318, 322; 508 N.W.2d 184 (1993); People v. Deason, 148 Mich.App. 27, 31; 384 N.W.2d 72 (1985)). Under Michigan law, a defendant is not entitled to use any more force than is necessary to defend himself. Johnigan, 207 F. Supp. 2d at 609 (citing Kemp, 202 Mich. App. at 322). "[T]he law of self-defense is based on necessity, and 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, serious bodily harm, or imminent forcible sexual penetration under the circumstances." Johnigan, 207 F. Supp. 2d at 609 (internal citation omitted).
In the present case, although there was evidence presented in support of petitioner's claim of self-defense, the prosecution also presented evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that the prosecutor had rebutted petitioner's self-defense claim.
When viewed in a light most favorable to the prosecution, the evidence showed that petitioner lacked any honest and reasonable belief that his life was in imminent danger or that he was in danger of great bodily harm. Further, the evidence showed that petitioner was the initial aggressor. It was petitioner who instigated the chain of events when he and his associate initially confronted Mr. Helzer over money owed to petitioner and began beating Mr. Helzer. When the victim came to Mr. Helzer's aid, petitioner and his associate began beating him also. Although the victim may have chased after petitioner with a sword, when petitioner fled the crime scene, he was no longer in danger. Petitioner chose to retrieve a firearm and return to the crime scene to confront Mr. Helzer and the victim a second time. Petitioner was clearly the aggressor. Petitioner also used excessive force by firing several shots at the victim. There was no weapon recovered from the victim or the crime scene. Sufficient evidence was thus presented for a reasonable trier of fact to find beyond a reasonable doubt that petitioner committed all of the elements of first-degree murder and that his killing of the victim was not justified by a claim of self-defense. See Friday v. Pitcher, 200 F.Supp.2d 725, 743 (E.D. Mich. 2002).
Although there was evidence to support petitioner's self-defense claim and petitioner has given interpretations to the evidence that differ from the state court's interpretation of the evidence, "in light of the deference to be accorded to state-court fact-finding under § 2254(e), as well as the traditional deference accorded to the jury's resolution of disputed factual issues," petitioner is unable to show that the Michigan Court of Appeals unreasonably determined that the prosecutor disproved petitioner's self-defense claim. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitioner claims that he was denied the effective assistance of trial counsel. To show that he or she was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant 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 defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his or her defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Petitioner first claims that his trial counsel was ineffective for failing to investigate and present two witnesses, his mother Linda Moore, and his girlfriend, Atairalita Love, to testify to petitioner's intoxication and drug use on the day of the shooting, August 1, 2012. Petitioner claims that evidence of his intoxication and drug usage would have negated the specific intent required for first-degree murder and would have bolstered his self-defense claim in that his intoxication would have made it reasonable for him to believe that the victim was pulling out a weapon, so as to justify the use of deadly force.
Respondent contends that petitioner's claim is unexhausted because it was never presented to the state courts. Petitioner argues that the claim was exhausted.
As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c); see Picard v. Connor, 404 U.S. 270, 275-78 (1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. See Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). Although exhaustion is not a jurisdictional matter, "it is a threshold question that must be resolved" before a federal court can reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
In the present case, petitioner presented several ineffective assistance of counsel claims in the pro se Standard 4 Brief on Appeal that he filed in addition to the brief filed by appellate counsel.
A claim may be considered "fairly presented" only if the petitioner asserted both the factual and legal basis for his claim to the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion requires that the same claim under the same theory be presented to the state courts before it can be raised in a federal habeas petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). "Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal habeas review." Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012).
A habeas petitioner is required to present to the state courts "the same specific claims of ineffective assistance [of counsel] made out in the habeas petition." Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F.2d 552, 554 (8th Cir. 1990). Because petitioner's claim that counsel was ineffective for failing to call his mother and girlfriend to testify about his intoxication on the day of the shooting is different than the ineffective assistance of counsel claims presented during petitioner's direct appeals process, this claim has not been fairly presented to the state courts. See Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003) (citing to Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987).
Although petitioner never properly exhausted this claim, a habeas petitioner's failure to exhaust his state court remedies does not deprive a federal court of its jurisdiction to consider the merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be addressed if the unexhausted claim is without merit, such that addressing the claim would be efficient and would not offend the interest of federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on the merits despite the failure to exhaust state court remedies). In these circumstances, a federal court should dismiss a non-federal or frivolous claim on the merits to save the state courts the useless review of meritless constitutional claims. Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991). Because petitioner's ineffective assistance of counsel claim lacks merit, in the interests of efficiency and justice, the court will address the claim, rather than dismiss the petition on exhaustion grounds. See Welch v. Burke, 49 F. Supp. 2d at 998.
Petitioner alleges that counsel was ineffective for failing to call either his mother or girlfriend to testify about his level of intoxication on the day of the shooting, so as to negate the specific intent required for first-degree murder and also to buttress either a self-defense or imperfect self-defense claim. Petitioner is not entitled to relief on his claim for several reasons.
First, petitioner failed to attach any affidavits from these witnesses to his petition for writ of habeas corpus concerning their proposed testimony and willingness to testify on petitioner's behalf. Conclusory allegations of ineffective assistance of counsel, without any evidentiary support, do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). Petitioner has failed to attach any offer of proof or any affidavits sworn by the proposed witnesses concerning their willingness to testify on petitioner's behalf. In the absence of such proof, petitioner is unable to establish that he was prejudiced by counsel's failure to call these witnesses to testify at trial, so as to support the second prong of an ineffective assistance of counsel claim. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
Secondly, this Court notes that federal courts have rejected ineffective assistance of counsel claims based on an attorney's failure to raise an intoxication defense on the ground that the level of intoxication needed to negate specific intent is so high that the defense is rarely successful. Evans v. Meyer, 742 F.2d 371, 374 (7th Cir. 1984); Wilen v. Wainwright, 793 F.2d 1190, 1194 (11th Cir. 1986); See also Vinson v. McLemore, 226 Fed. App'x. 582, 585 (6th Cir. 2007) (trial counsel's alleged conduct in relying on self-defense as defendant's only theory of acquittal, rather than investigating and pursuing voluntary intoxication defense, was reasonable trial strategy, and therefore was not ineffective assistance of counsel; trial counsel explained at evidentiary hearing he never used alcohol as a defense and had never known of it being successful and that jurors ordinarily did not like the argument that a defendant was too drunk to know what he was doing). Petitioner's actions on the day in question appeared purposeful enough that any intoxication defense was unlikely to succeed. (Moreover, a defense counsel's strategic decision to forego an intoxication defense in favor of a self-defense argument is reasonable because intoxication at a level sufficient to affect the ability to form intent would be inconsistent with self-defense, which requires purposeful action in responding to a perceived threat.)
Third, there is no allegation from petitioner that either his mother or girlfriend were present at the time of the shooting, nor did any of the witnesses testify to their presence. Without either person being present at the crime scene, their testimony concerning whether petitioner was justified in using deadly force would have been of limited value. A defense counsel has no obligation to present evidence or testimony that would not have exculpated the defendant. See Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (internal quotation omitted). Because petitioner's mother and girlfriend were not present when the confrontation took place between petitioner and the victim, they could not have exonerated petitioner of the crime; thus, counsel was not ineffective in failing to call them as witnesses. See, e.g., Pillette v. Berghuis, 408 F. App'x. 873, 885-86 (6th Cir. 2010). Stated differently, counsel was not ineffective in failing to call petitioner's mother or girlfriend as witnesses because they could have offered only marginal support for petitioner's self-defense claim. See Johnson v. Hofbauer, 159 F. Supp. 2d at 607. To the extent Petitioner contends that counsel was ineffective for not calling his mother and his girlfriend to testify as to his level of intoxication, counsel's strategic decision not to present such evidence was reasonable and not ineffective because such evidence would have undermined the self-defense argument. For the reasons stated above, petitioner is not entitled to relief on his first ineffective assistance of counsel claim.
Petitioner next claims that counsel was ineffective for failing to challenge the legality of his arrest. Petitioner claims that the police arrested him without a warrant at his mother's home, thus, his confession should have been suppressed as the fruit of an illegal arrest. To prove that counsel's failure to litigate a Fourth Amendment claim competently is the principal claim of ineffectiveness, a defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence, in order to demonstrate actual prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
As an initial matter, this Court notes that the Michigan Court of Appeals rejected petitioner's claim, in part, because although the felony warrant in this case was signed on December 28, 2012, Officer Maye testified that petitioner was arrested on December 26, 2012 on an outstanding homicide warrant and the detainee input sheet dated December 26, 2012 shows that it listed the numeric codes for five different holds or warrants related to petitioner's arrest. People v. Charleston, 2015 WL 1119720, at * 7. Thus, Petitioner fails to establish a factual basis for his claim.
In any event, even if the police did not possess a valid arrest warrant, they did have probable cause to arrest petitioner for the murder. People v. Charleston, 2015 WL 1119720, at * 7. An arrest made at a suspect's home without a warrant, but with probable cause, does not render a suspect's continued detention unlawful and will not render any subsequent statements or confessions made by a suspect to the police at the police station after Miranda warnings have been given by the police inadmissible. New York v. Harris, 495 U.S. 14, 18 (1990). Although the Supreme Court has held that a warrantless arrest inside of a home violates the Fourth Amendment, See Payton v. New York, 445 U.S. 573 (1980), the Supreme Court in Harris noted that its holding in Payton was based on the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." New York v. Harris, 495 U.S. at 17 (quoting Payton, 445 U.S. at 601). The Supreme Court in Harris further ruled that nothing in its decision in Payton suggested that a warrantless arrest in the home renders a suspect's continued custody unlawful once he or she has been removed from the residence. Id. The Supreme Court further noted that suppressing a defendant's statement given to the police after he or she had been removed from the home would not serve the purpose of the rule which makes a warrantless arrest in a home illegal, because the purpose of the warrant requirement in that situation is to protect the home. New York v. Harris, 495 U.S. at 20.
In the present case, even if petitioner was arrested at home without a warrant, it would not justify the suppression of the confession that petitioner subsequently made to the police at police headquarters after being advised of his Miranda rights. There was no basis for suppressing the confession on this ground and petitioner is unable to show that he was prejudiced by counsel's failure to challenge the admissibility of his confession on this basis.
Petitioner finally contends that counsel was ineffective for failing to seek the suppression of his confession based on the pre-arraignment delay in this case.
Petitioner's claim is based on the Supreme Court's decision in County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Riverside was a civil rights case brought under 42 U.S.C. § 1983. The Supreme Court held that the federal constitution requires that a defendant be given a reasonably prompt probable cause determination, such as arraignment, following his arrest, and that a delay in arraignment greater than 48 hours after arrest is presumptively unreasonable. See id. at 55-58.
Even if there was an unreasonable delay in arraignment, petitioner cannot show a reasonable probability that a motion to suppress his statement on this basis would have been successful. McLaughlin was a civil rights action and thus did not consider the effect of pre-arraignment delay on the voluntariness of a statement made to the police. See Davis v. Jones, 306 F. App'x. 232, 236 (6th Cir. 2009). Indeed, the Supreme Court has explicitly declined to fashion an appropriate remedy for a McLaughlin violation. See Powell v. Nevada, 511 U.S. 79, 84 (1994). The Michigan courts have likewise held that suppression of a statement is not per se required for a McLaughlin violation. See People v. Manning, 243 Mich.App. 615, 636-44; 624 N.W.2d 746 (2000). Under both federal and Michigan law, any unnecessary delay in having a defendant arraigned before a magistrate or other judicial officer is insufficient, in and of itself, to justify the suppression of an otherwise voluntary confession made during the period of the pre-arraignment delay; instead, delay is only one of several relevant factors to be considered in determining the voluntariness of a criminal defendant's statements. See United States v. Christopher, 956 F.2d 536, 538 (6th Cir. 1991); People v. Cipriano, 431 Mich. 315, 319; 429 N.W.2d 781 (1988). If the totality of the circumstances indicate that a confession was voluntarily given, it should not be excluded solely because of pre-arraignment delay. Cipriano, 431 Mich. at 319.
In this case, based on a review of the record, the totality of circumstances indicate that petitioner's confession was voluntary—in spite of the pre-arraignment delay—because there is no allegation that petitioner was not advised of his Miranda warnings, and there is no evidence of intimidating police conduct, that the police interview was coercive, or that petitioner was otherwise harassed or mistreated. Christopher, 956 F. 2d at 539. Because the totality of the circumstances indicate that petitioner's statement was voluntary, counsel was not ineffective for failing to move to suppress petitioner's statements because of the pre-arraignment delay. See Davis, 306 Fed. App'x. at 237-39 (counsel not ineffective for failing to seek suppression of petitioner's statement based on a 96 hour delay between the arrest and arraignment when the other factors established that the statement was voluntary). Petitioner is not entitled to habeas relief on his third claim.
The Court denies the petition for writ of habeas corpus. The Court also denies a certificate of appealability to petitioner. In order 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 such a denial, the applicant is required to show that 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). When a district court rejects 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. Id. at 484. "The district 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).
For the reasons stated in this opinion, the Court denies petitioner a certificate of appealability because he failed to make a substantial showing of the denial of a federal constitutional right. See Dell v. Straub, 194 F.Supp.2d 629, 659 (E.D. Mich. 2002). The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas Corpus is
IT IS FURTHER ORDERED that a Certificate of Appealability is
IT IS FURTHER ORDERED that Petitioner will be
