DENISE PAGE HOOD, Chief District Judge.
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Ted Gipson, ("Petitioner"), was convicted after a jury trial in the Macomb Circuit Court of first-degree felony murder, MICH. COMP. LAWS § 750.316, and armed robbery, MICH. COMP. LAWS § 750.529, for actions taken with his brother, Scott Gipson, in the beating death of David Witting. Petitioner was sentenced to life imprisonment for the murder conviction and 285 to 480 months for the robbery conviction.
The amended petition asserts six grounds for relief: (1) Petitioner was denied his right to a fair trial by admission of evidence of his "Murder 1" tattoo, (2) Petitioner's Fifth Amendment rights were violated by admission of his coerced statement to police, (3) Petitioner's Sixth Amendment right to counsel was violated when the prosecutor used jail-house informants to elicit incriminating statements from him, (4) Petitioner was denied his Sixth Amendment right to the effective assistance of appellate counsel, (5) the prosecutor committed misconduct by offering perjured testimony from the jailhouse informants, and (6) the Michigan Court of Appeals erroneously dismissed Petitioner's application for leave to appeal following his state postconviction proceeding.
The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability, but it will grant him permission to appeal in forma pauperis.
The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
People v. Gipson, No. 287324, 787 N.W.2d 126, *1 (Mich. App. Jan. 28, 2010).
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised what now form his first two habeas claims. The Michigan Court of Appeals affirmed Petitioner's convictions in a published opinion. Id.
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same two claims he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Gipson, 784 N.W.2d 213 (Mich. July 26, 2010) (table).
Petitioner then filed the instant action along with a motion to stay the case so that he could present additional claims to the state courts in a postconviction review proceeding. The Court granted the motion.
Petitioner then filed a motion for relief from judgment in the state trial court. The motion raised what now form Petitioner's third, fourth, and fifth habeas claims. On September 11, 2013, the trial court issued an opinion and order denying the motion. See Dkt. 20-3.
Pursuant to Michigan Court Rule 7.205(G)(3), Petitioner had six months to file a delayed application for leave to appeal in the Michigan Court of Appeals. On March 12, 2014, the last day to file an appeal, Petitioner attempted to file a delayed application for leave to appeal. On March 24, 2014, the Michigan Court of Appeals' Clerk notified Petitioner that his application was defective because he did not provide a proof of service upon the prosecutor. On June 3, 2014, the appeal was dismissed for failure to pursue the case in conformity with the court rules. People v. Gipson, No. 320828 (Mich. Ct. App. June 3, 2014). Petitioner's motion for reconsideration was denied on July 21, 2014.
On September 2, 2014, Petitioner attempted to file a second application for leave to appeal in the Michigan Court of Appeals. The court summarily dismissed the appeal "because appellant failed to file the application within the 6-month time period required by MCR 7.205(G)(3)." People v. Gipson, No. 323449 (Mich. Ct. App. Oct. 20, 2014).
In the meantime, Petitioner had filed an application for leave to appeal in the Michigan Supreme Court from his first dismissed appeal to the Michigan Court of Appeals. On April 28, 2015, the Michigan Supreme Court issued an order denying leave to appeal because the court was not persuaded that the questions presented should be reviewed. People v. Gipson, 861 N.W.2d 902 (Mich. 2015) (table).
Petitioner then returned to this Court and filed a motion to reinstate his federal habeas case and an amended petition. The Court granted the motion, and Respondent subsequently filed a responsive pleading and the relevant portions of the state court record. The matter is now ready for decision.
28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was "contrary to" or resulted in an "unreasonable application of" clearly established Supreme Court law.
"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), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
"[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413.
"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). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103 (internal quotation omitted).
As an initial matter, Respondent asserts that several of Petitioner's claims are barred by his state court procedural default and by application of the one-year statute of limitations. Under the procedural default doctrine, a federal habeas court will not review a question of federal law if a state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment, absent a showing of cause and prejudice to excuse the default. See Coleman v. Thompson, 501 U.S. 722, 729 (1991).
A state court procedural default, however, is not a jurisdictional bar to a review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). That is, "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the habeas court to simply review the merits of the petitioner's claims, "for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Lambrix, 520 U.S. at 525. Similarly, where the statute of limitations poses complicated issues, it may be more efficient for the Court to resolve the merits of the petition against the Petitioner. See, e.g., Johnson v. Mackie, 2014 U.S. Dist. LEXIS 50896, *7, 2014 WL 1418678 (E.D. Mich. April 14, 2014).
In the present case, the Court deems it more efficient to proceed directly to the merits of Petitioner's substantive claims, especially because Petitioner alleges that his appellate counsel was ineffective for failing to preserve the defaulted claims (habeas claim 4), and because Petitioner contends that the prison or state appellate court mishandled his appellate filings on state postconviction review causing his default (habeas claim 6). Accordingly, the Court will bypass discussion of Respondent's procedural arguments, (and the Court therefore also need not discuss Petitioner's fourth and sixth claims which seek to undermine those defenses), as it is more efficient to resolve Petitioner's substantive claims on the merits against him.
Petitioner first asserts that his trial was rendered fundamentally unfair by the admission of evidence that he bore a tattoo stating "Murder One." This claim was presented to and rejected by the Michigan Court of Appeals on the merits during Petitioner's direct appeal.
"Errors by a state court in the admission of evidence are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006). Typically, to show a due-process violation under AEDPA rooted in an evidentiary ruling, there must be a Supreme Court case establishing a due-process right with regard to that specific kind of evidence. Collier v. Lafler, 419 F. App'x 555, 558 (6th Cir. 2011).
The Michigan Court of Appeals denied relief with respect to Petitioner's evidentiary claim on the following basis:
Gipson, 787 N.W.2d 126, *1-2.
This decision did not involve an unreasonable application of clearly established Supreme Court law. First, Petitioner has failed to cite to, and this Court is unaware of, any Supreme Court case holding that the admission of potentially prejudicial tattoo evidence can render a trial fundamentally unfair in violation due process. In the absence of a Supreme Court case "establishing a due-process right with regard to that specific kind of evidence," Petitioner cannot established entitlement to relief under section 2254(d). Collier, 419 F. App'x at 558.
Petitioner asserts that there are also innocent explanations for the tattoo. He was allowed to present those alternate explanations at trial during his own testimony, preserving the fundamental fairness of his trial. This claim is without merit.
Petitioner next asserts that his statement to police was admitted at trial in violation of his Fifth Amendment right against compelled self-incrimination because it was the product of police coercion. This claim was also rejected by the Michigan Court of Appeals during Petitioner's direct appeal.
The Fifth Amendment privilege against compulsory self-incrimination bars the admission of involuntary confessions. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986). A confession is considered involuntary if: (1) the police extorted the confession by means of coercive activity; (2) the coercion in question was sufficient to overbear the will of the accused; and (3) the will of the accused was in fact overborne "because of the coercive police activity in question." McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988).
In determining whether a confession is voluntary, the ultimate question 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. 104, 112 (1985). Without coercive police activity, however, a confession should not be deemed involuntary. Connelly, 479 U.S. at 167 ("coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause").
The Michigan Court of Appeals did not unreasonably apply this clearly established when it rejected Petitioner's claim on the merits as follows:
court's determination that a waiver was knowing, intelligent, and voluntary. People v. Tierney, 266 Mich.App. 687, 707-708 (2005). When reviewing a trial court's determination of voluntariness, we examine the entire record and make an independent determination. People v. Shipley, 256 Mich.App. 367, 372 (2003). But we review a trial court's factual findings for clear error and will affirm the trial court's findings unless left with a definite and firm conviction that a mistake was made. People v. Sexton, 461 Mich. 746, 752 (2000). Deference is given to a trial court's assessment of the weight of the evidence and the credibility of the witnesses. Id.
Gipson, 787 N.W.2d 126, *2-4.
As noted by the state appellate court, the resolution of Petitioner's coerced-confession claim essentially boiled down to a determination of whether Petitioner's account of the circumstances surrounding his questioning or the officers' contrary account was true. After hearing and observing the witnesses' testimony, the trial court chose to believe the officers' accounts.
Subsidiary factual questions in determining the voluntariness of a statement to police, such as whether the police engaged in the intimidation tactics alleged by a habeas petitioner, are entitled to the presumption of correctness accorded to state-court findings of fact. Miller, 474 U.S. at 112; § 2254(e)(1). On federal habeas review, a federal court must presume that the state court's factual findings were correct, unless the petitioner shows otherwise by clear and convincing evidence. Williams v. Jones, 117 F. App'x 406, 412 (6th Cir. 2004). Here, Petitioner does not offer clear and convincing evidence to overcome the presumption of correctness attaching to the trial court's credibility determination. Accepting the officers' version of the questioning as true, Petitioner has failed to demonstrate that his statement to police was the product of police coercion. The claim is therefore without merit.
Petitioner next asserts that his Sixth Amendment right to counsel was violated when the prosecution placed jail-house informants in his housing unit to elicit inculpatory statements, thereby violating his Sixth Amendment right to counsel.
This claim was raised by Petitioner in his motion for relief from judgment, but the trial court failed to address it in its opinion denying the motion. The state appellate courts subsequently dismissed Petitioner's appeal for failing to timely correct his filing deficiencies. Nevertheless, there is a presumption that a state court reached and rejected the merits of a claim when there is no statement in the state court order indicating that the adjudication was on a basis other than the merits. See Kernan v. Hinojosa, 136 S.Ct. 1603, 1606 (2016) (per curiam) ("Containing no statement to the contrary, the Supreme Court of California's summary denial of Hinojosa's petition was therefore on the merits."). Accordingly, despite the lack of an explicit merits determination by the state trial court, Petitioner is required to show that the implicit merits denial of this claim ran contrary to, or involved an unreasonable application of, clearly established Supreme Court law under section 2254(d).
Under established Supreme Court law, a criminal defendant does not establish a Sixth Amendment violation "simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the [government]. Rather, the defendant must demonstrate that the [government] and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). "[T]he Sixth Amendment is not violated whenever-by luck or happenstance-the State obtains incriminating statements from the accused after the right to counsel has attached." Maine v. Moulton, 474 U.S. 159, 176 (1985). The Supreme Court has found that "[w]hen a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking." Illinois v. Perkins, 496 U.S. 292, 296 (1990).
Petitioner supports his claim with the purported affidavit of Chris Holman. Holman states in the affidavit that police contacted him about Petitioner's case and gave him the entire police file to review so that he could fabricate his testimony. See Dkt. 17, Exhibit B, Affidavit of Chris Holman. Holman states that the police also placed him with another inmate, Daryl Whittie, so that the two could corroborate each other's testimony that Petitioner made incriminating statements. Id. Holman states that Petitioner never in fact confessed to him, and that his trial testimony about statements made by Petitoner was false. Id., ¶ 14.
At trial, Holman testified that he was housed in the same unit in jail with Petitioner. Dkt. 10-7, at 95-96. He testified that no one from the prosecution contacted him, and that he was the one who initiated communication after Petitioner made incriminating statements. Id., at 96. Petitioner described the circumstances surrounding the crime, and he admitted to kicking the victim. Holman testified to the promises made to him in exchange for his testimony. Id.,at 99-101. On cross-examination, defense counsel admitted the letter Holman wrote to the prosecutor initiating communication regarding Petitioner. Id., at 109. The letter was written in December of 2007. Id., at 124-25.
Daryl Whittie testified that he also wrote a letter to the prosecutor about Petitioner's incriminating statements made in December of 2007. Id., at 129. According to Whittie, Petitioner made "hundreds" of statements about the crime. Id., at 131-33. Whittie was contacted by the police after he wrote the letter. Id., at 134. Whittie also testified that he was the inmate who tattooed Petitioner with "Murder 1," and then helped cover the tattoo after Petitioner realized that it might be used against him. Id., at 134-35.
Neither the trial record nor Holman's dubious affidavit support Petitioner's claim. At trial, both jail-house informants testified that they contacted the prosecution or police after Petitioner made incriminating statements. Therefore based on the trial record, the two men were not agents of the prosecution, and Petitioner's Sixth Amendment rights were not implicated by statements he made to them.
Holman's affidavit does not save the claim. In it, Holman states that Petitioner did not make any incriminating statements, and that Holman fabricated his testimony. If that is what happened, Petitioner's Sixth Amendment rights were not implicated because Petitioner did not make any incriminating statements. Instead, the issue would be the presentation of Holman's fabricated testimony discussed below.
In any event, there are very good reasons to doubt the statements in Holman's affidavit. At trial, defense counsel offered as an exhibit the initiating letter Holman wrote to the prosecutor. Dkt. 10-7, at 109. Holman's affidavit contains a detailed account of his contacts with the police, but it completely fails to mention the initiating letter he wrote. If the prosecution had Holman write them a fraudulent letter to make it appear that he was the one who initiated contact, one would expect that important and damning fact to be included in his affidavit. The failure to mention the letter created a reasonable basis for a reviewing court to find the contents of the affidavit to be false.
Accordingly, the rejection of Petitioner's claim was not unreasonable. First, the claim is belied by the trial testimony of Holman and Whittie, neither of whom testified that they elicited statements from Petitioner as agents of the prosecution. In fact, Holman's affidavit claims that Petitioner never made any incriminating statements to him. Finally, the affidavit does not account for Holman's letter to the prosecutor admitted at trial, undermining its veracity. Petitioner has therefore failed to demonstrate that the rejection of this claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court law.
Petitioner's next claim also concerns Holman and Whittie, and it asserts that the prosecutor committed misconduct by knowingly offering their false testimony at trial. This claim was also presented to the trial court in Petitioner's motion for relief from judgment. Unlike the previous claim, the trial court examined this claim in detail, recounting and parsing the relevant trial testimony, and deciding that the new information in Holman's affidavit would not have made a different result at trial probable. The trial court also found that the affidavit was not sufficiently credible to warrant a new trial:
Witness Daryl Whittie testified in relevant part as follows:
Compare defendant's trial testimony with the subject witnesses, and while there are some discrepancies, the general context and sequence of events are in accord:
Dkt. 20-3, at 2-9 (brackets in original).
The Supreme Court has made clear that the "deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice." Giglio v. United States, 405 U.S. 150, 153 (1972). It is thus well-settled that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97 (1976) (footnote omitted); see also Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew that the statements were false. Coe, 161 F.3d at 343. A habeas petitioner bears the burden of proving that the disputed testimony constituted perjury. Napue, 360 U.S. at 270.
The trial court implicitly found that Holman's recanting affidavit was not credible. Dkt. 20-3, at 8. As indicated above, 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); § 2254(e)(1). A state court's factual determination that a prosecution witness' recantation and supporting affidavit is not credible is entitled to the presumption of correctness in a federal habeas proceeding. See Richardson v. Lord, 7 F. App'x. 1, 2 (2nd Cir. 2001); See also Poe v. Rapelje, 5:12-CV-11390, 2014 U.S. Dist. LEXIS 132443, 2014 WL 4715460, * 2 (E.D. Mich. Sept. 22, 2014).
Petitioner does not offer clear and convincing evidence that Holman's affidavit is credible. The affidavit warrants the extreme suspicion typically afforded recanting affidavits and witnesses by the courts. Byrd v. Collins, 209 F.3d 486, 508 n.16 (6th Cir. 2000). See also Welsh v. Lafler, No. 10-1467, 444 F. App'x 844, 850 (6th Cir. 2011) (trial witness's sworn recantation must be viewed with caution); Bower v. Curtis, No. 03-1821, 118 F. App'x 901, 908 (6th Cir. Dec. 17, 2004) ("The recanting of trial testimony by prosecution witnesses is typically viewed with the `utmost suspicion.'") (internal quotation omitted). The affidavit contradicts Holman's sworn trial testimony. It was executed in 2012, approximately four years after Petitioner's 2008 trial. Holman offers no reason for his recantation other than a generalized desire to clear his conscious. And as discussed above, defense counsel admitted at trial the letter Holman wrote to the prosecutor initiating contact, thus contradicting his new claim that the prosecution contacted him and fed him information about Petitioner's case so he could concoct a confession.
As described in the trial court's opinion, Petitioner admitted at trial that he was a "big mouth" in jail, and that Holman and Whittie were in jail with him. Dkt. 11-1, at 32-33. He also testified at trial that he thought Holman and Whittie obtained information about the crime by reading newspaper articles. Id. This contradicts Holman's claim in his affidavit that "at no time did Ted Gipson confess any crimes to me. All information I testified to was information I received from reading the case file of Ted Gipson provided to me. . . ." Dkt. 17, Exhibit B, ¶ 14. The trial court's decision that Gipson's affidavit was not credible has not been rebutted by clear and convincing evidence. The claim fails because Petitioner has failed to establish that perjured testimony was presented at trial.
Additionally, and for the reasons detailed in the trial court's lengthy discussion, the alleged perjured testimony by Holman and Whittie was not significantly different than what Petitioner admitted to at trial. Neither man testified that Petitioner admitted to being a significantly more active participant in the beating of the victim than Petitioner himself testified to at trial. Their recollection of Petitioner's statements referred to "put[ting] boots to him," "kicking," and "punching" in general. Petitioner admitted at trial that he punched the victim in the face and kicked him when he was on the ground. Dkt. 11-1, at 15-17. Petitioner minimized his conduct by stating that he stopped striking the victim while his brother continued to beat him. Id. Holman and Whittie's trial accounts did not dispute this testimony and were not substantially more damaging than Petitioner's own account.
Therefore, discounting Holman and Whittie's testimony, it was reasonable for the state court to reject the claim because Petitioner did not demonstrate a reasonable likelihood that the false testimony affected the judgment of the jury. That is, it was reasonable to deny relief with respect to the claim first by reasonably rejected as false the contents of Holman's affidavit, and then second by reasonably finding that even if the testimony was false, Holman and Whittie did not add significant weight to the prosecutor's case.
Because none of Petitioner's claims merit relief, the petition will be denied.
Before Petitioner may appeal this Court's dispositive decision, "a circuit justice or judge" must issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R.App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).To satisfy § 2253(c)(2), Petitioner must show "that reasonable jurists could debate whether (or, for that matter, 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, 484 (2000) (citation and internal quotation marks omitted). The Court finds that reasonable jurists would not debate the resolution of his claims. The Court will therefore deny a certificate of appealability with respect all of Petitioner's claims.
If Petitioner chooses to appeal the Court's decision, however, he may proceed in forma pauperis because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1)
