ARTHUR J. TARNOW, District Judge.
Darius Gilkey, ("petitioner"), confined at the Handlon Correctional Facility in Ionia, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for first-degree murder, M.C.L.A. 750.316;
Petitioner was convicted following a bench trial in the Wayne County Circuit Court.
People v. Gilkey, No. 326172, 2016 WL 1579041, at * 1 (Mich. Ct. App. Apr. 19, 2016).
Petitioner's conviction was affirmed. Id., lv. den. 500 Mich. 857, 883 N.W.2d 769 (2016).
Petitioner seeks habeas relief 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)).
Petitioner claims that there was insufficient evidence to convict him of the charges. Petitioner argues that there was insufficient evidence that the victim was sexually assaulted or that he was the person who actually murdered the victim. Petitioner suggests that the evidence at most established that he had sex with the victim after she had already been killed by someone else.
The Michigan Court of Appeals rejected petitioner's 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). A court need not "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 the original). The Jackson standard applies to bench trials, as well as to jury trials. See e.g. U.S. v. Bronzino, 598 F.3d 276, 278 (6th Cir. 2010).
A federal habeas court may not overturn a state court decision that rejects a sufficiency of the evidence claim merely 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.
Under Michigan law, "[T]he identity of a defendant as the perpetrator of the crimes charged is an element of the offense and must be proved beyond a reasonable doubt." Byrd v. Tessmer, 82 F. App'x. 147, 150 (6th Cir. 2003)(citing People v. Turrell, 25 Mich.App. 646, 181 N.W.2d 655, 656 (1970)).
Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence at trial to exclude every reasonable hypothesis except that of guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted). Identity of a defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194 F.Supp.2d 629, 648 (E.D. Mich. 2002). Eyewitness identification is not necessary to sustain a conviction. See United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp. 2d at 648. In the present case, the DNA evidence was sufficient in and of itself to establish petitioner's identity as the perpetrator. See e.g. U.S. v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999); Kelley v. Jackson, 353 F.Supp.2d 887, 892 (E.D. Mich. 2005). Indeed, a rational trier of fact "could consider the DNA evidence to be powerful evidence of guilt." McDaniel v. Brown, 558 U.S. 120, 132 (2010)
Petitioner acknowledges that his DNA was recovered from the victim but suggests that she had already been killed by someone else and that he had sex with the victim after she died.
Under Michigan law, first-degree criminal sexual conduct is committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances in the first-degree criminal sexual conduct statute. See Farley v. Lafler, 193 F. App'x. 543, 548 (6th Cir. 2006). Petitioner was convicted of first-degree criminal sexual conduct under a theory that he was armed with a weapon during the sexual assault.
Under Michigan law, "the crime of criminal sexual conduct requires a live victim at the time of penetration." People v. Hutner, 209 Mich.App. 280, 283, 530 N.W.2d 174, 176 (1995).
The evidence in this case was sufficient for a rational trier of fact to conclude that the victim was still alive at the time of the assault and that petitioner was the person who sexually assaulted her. The evidence established that the victim was forced into a concealed area, where sexual penetration took place. The victim was stabbed in the neck and left to die. When the victim was discovered, her dress had been pulled up above her waist and her panties had been pulled up over to the side. Petitioner's DNA matched the semen that was recovered from the victim's vagina and panties. All of this evidence suggests that it was petitioner who forced the victim against her will at knifepoint into the abandoned building, sexually assaulted her while she was still alive, before murdering her, so as to sustain his convictions for first-degree criminal sexual conduct and the related first-degree felony murder charge. "If the woman was already dead, it would have been unnecessary for defendant to use much force to commit the sexual offense." People v. Diefenbach, No. 176489, 1996 WL 33360429, at * 2 (Mich. Ct. App. Aug. 20, 1996). Petitioner's sufficiency of evidence claim fails because he "points to no evidence introduced at trial that conclusively proved [the victim] was dead at the time he unlawfully penetrated her." Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010).
There was likewise sufficient evidence to establish that petitioner was the person who murdered the victim during the commission of the sexual assault.
Under Michigan law, the elements of first-degree felony murder are:
Matthews v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003)(citing to People v. Carines, 460 Mich. 750, 759; 597 N.W.2d 130 (1999)).
In order to obtain a conviction for first-degree premeditated murder in Michigan, the prosecutor must prove 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 proven through evidence of the following factors:
Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004); Anderson, 209 Mich. App. at 527.
In the present case, there was sufficient circumstantial evidence to support petitioner's murder convictions. Petitioner's DNA matched the DNA of the semen taken from the victim's vagina and panties. The victim had been stabbed in the neck. The evidence supports a finding that the victim was killed during or after the sexual assault. It was reasonable for the judge to find that petitioner was the murderer. The other acts evidence admitted under 404(b) evidence established that petitioner murdered another woman in a like manner and in the same area is further evidence which establishes petitioner's identity as the murderer. See Jamison v. Collins, 100 F.Supp.2d 647, 707 (S.D. Ohio 2000), aff'd, 291 F.3d 380 (6th Cir. 2002), as amended on denial of reh'g (July 11, 2002). Petitioner is not entitled to relief on his first claim.
Petitioner next argues that the trial court improperly denied his request to substitute defense counsel on the first day of trial because counsel failed to request independent DNA testing and to sufficiently communicate with petitioner.
On the first day of trial, petitioner requested a new attorney. Petitioner claimed that there were "several occasions where the attorney had to just come see me in the jail and I didn't get any kind of counsel about the case." (Tr. 1/21/15, p. 5). Petitioner also complained that counsel failed to file certain motions. When asked to elaborate, petitioner indicated that he wanted to have a motion to have his DNA tested. In response to a further question from the judge, petitioner clarified that he wanted a new attorney to pursue independent testing of his DNA. Petitioner further alleged that he did not get proper counseling or advice because his attorney only came to visit him in jail about once a month. Petitioner also handed the judge a letter containing the same allegations. (Id., pp. 5-7). The judge reviewed the letter and confirmed with petitioner that it contained the same allegations against counsel that petitioner had stated in court, namely, that counsel failed to obtain independent DNA testing and failed to visit him enough in jail. (Id., p. 8).
Defense counsel responded that he had obtained an order from the court for an independent analysis of the DNA. Counsel informed the judge that the only thing that had been approved by the judge was a review of the testing laboratory's protocol, but the review indicated that there were no errors in the DNA analysis and the analysis was satisfactory. Counsel noted that the judge had indicated that if there were errors with the testing of the DNA, counsel could return to him and ask for the DNA to be re-tested, but because the laboratory review did not indicate any errors in the DNA, counsel did not pursue the issue further. (Id., pp. 8-9). Counsel indicated that he visited petitioner in jail twice and spoke with him in the court holding cell on hearing dates. Counsel concluded: "So I feel I communicated with him plenty of times, there was nothing fancy about this matter in terms of what he was looking for. No witnesses he needed me to search out. No investigator to do any type of research. His position is quite simple; that this is something that was placed on him by the police. And I can try this matter and I've been ready to try this matter, but we had to wait for the analysis to come back from Speckin Labs and we just got that last week." (Id., pp. 9-10).
The judge noted that when petitioner appeared before the court the previous day and waived trial by jury, he did not complain about counsel. The judge concluded that the reasons stated by petitioner were insufficient to substitute counsel and denied petitioner's request. (Id., pp. 11-14).
The Sixth Amendment right to the assistance of counsel does not guarantee a criminal defendant that he or she will be represented by a particular attorney. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)). A criminal defendant who has the desire and the financial means to retain his own counsel "should be afforded a fair opportunity to secure counsel of his own choice." Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, "[t]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale, 491 U.S. at 624-25). However, while a criminal defendant who can afford his or her own attorney has a right to a chosen attorney, that right is a qualified right. Serra, 4 F.3d at 1348 (citing to Wheat v. United States, 486 U.S. 153, 159 (1988)). Stated differently, the right to counsel of one's own choice is not absolute. See Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985). "Although a criminal defendant is entitled to a reasonable opportunity to obtain counsel of his choice, the exercise of this right must be balanced against the court's authority to control its docket." Lockett v. Arn, 740 F.2d 407, 413 (6th Cir. 1984); see also Gonzalez-Lopez, 548 U.S. at 151-52)("Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them . . . We have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.")(internal citations omitted). Finally, the right to counsel of choice may not be used to unreasonably delay a trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981).
"Because a trial court's decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion." Martel v. Clair, 565 U.S. 648, 663-64 (2012).
Petitioner is not entitled to relief for several reasons.
This Court first notes that the petitioner's request for a continuance to obtain new counsel was untimely because it was made on the first day of trial. Petitioner offered no reasons to the state courts or to this Court why he did not bring his dissatisfaction with his counsel up to the trial court earlier. The Sixth Circuit has noted that when "the granting of the defendant's request [for a continuance to obtain new counsel] would almost certainly necessitate a last-minute continuance, the trial judge's actions are entitled to extraordinary deference." U.S. v. Whitfield, 259 F. App'x. 830, 834 (6th Cir. 2008)(quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995)). The Sixth Circuit has rejected similar requests as being untimely. See U.S. v. Trujillo, 376 F.3d 593, 606-07 (6th Cir. 2004)(motion for substitution of counsel was untimely, coming only three days prior to the start of the trial); United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)(motion to continue to obtain new counsel untimely when it was made the day before trial). In the present case, petitioner's request for a continuance to obtain new counsel on the day of trial was untimely, particularly where the petitioner had several opportunities prior to trial to bring his dissatisfaction with counsel to the attention of the trial court. Whitfield, 259 F. App'x. at 834.
Secondly, petitioner failed to establish good cause for substitution of counsel, where he failed to show that the conflict between himself and his attorney was so great that it resulted in a total lack of communication which prevented an adequate defense. See United States v. Jennings, 83 F. 3d at 149. Petitioner was not entitled to substitute counsel because his complaints against counsel involved differences of opinion regarding trial strategy and what motions to file rather than any irreconcilable conflict or total lack of communication. See e.g. Adams v. Smith, 280 F.Supp.2d 704, 720 (E.D. Mich. 2003). The record in this case does not demonstrate that the disagreements between petitioner and his attorney rose to the level of a conflict sufficient to justify the substitution of counsel. See United States v. Sullivan, 431 F.3d 976, 981 (6th Cir. 2005).
Third, the judge sufficiently inquired into petitioner's allegations of ineffectiveness against counsel on the first day of trial. In light of the fact that there were "multiple lengthy discussions" about the alleged conflicts between petitioner and his counsel, there was no abuse of discretion in denying petitioner's motion for substitute counsel. See U.S. v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009).
Finally, petitioner is unable to show that he was prejudiced by the failure of the trial court to grant petitioner a continuance to hire a new attorney, in light of the fact that he received effective assistance of counsel at trial. Vasquez, 560 F.3d at 468. "The strained relationship" between petitioner and his attorney was not a "complete breakdown in communication" that prevented the petitioner from receiving an adequate defense. Id.
The Michigan Court of Appeals' conclusion that the trial judge's denial of the petitioner's motion to substitute counsel did not violate his Sixth Amendment rights was not an unreasonable application of federal law, and thus the petitioner is not entitled to federal habeas relief. See Henness v. Bagley, 644 F.3d 308, 322 (6th Cir. 2011).
Petitioner next claims that the judge violated his constitutional rights by admitting evidence of his other murder in violation of M.R.E. 404(b).
It is "not the province of a federal habeas court to reexamine state-court determinations on state-court questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to deciding whether a state court conviction violates the Constitution, laws, or treaties of the United States. Id. Thus, errors in the application of state law, especially rulings regarding the admissibility of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitioner's claim that the state court violated M.R.E. 404(b) by admitting this evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court's habeas powers did not permit Court to reverse state court conviction based on their belief that the state trial judge erred in ruling that prior injury evidence was admissible as bad acts evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53 (1990)(admission at defendant's bank robbery trial of "similar acts" evidence that he had subsequently been involved in a house burglary for which he had been acquitted did not violate due process). The admission of this "prior bad acts" or "other acts" evidence against petitioner at his state trial does not entitle him to habeas relief, because there is no clearly established Supreme Court law which holds that a state violates a habeas petitioner's due process rights by admitting propensity evidence in the form of "prior bad acts" evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); Adams v. Smith, 280 F. Supp. 2d at 716. Petitioner is not entitled to relief on his third claim.
Petitioner next claims that he did not knowingly and intelligently waive his right to a jury trial because he was not advised by the judge that a jury would contain 12 members and that their verdict had to be unanimous.
On January 20, 2015, petitioner appeared for trial.
The trial judge engaged in the following colloquy:
The Michigan Court of Appeals rejected petitioner's claim:
People v. Gilkey, No. 326172, 2016 WL 1579041, at * 7-8 (internal citations omitted).
The burden of demonstrating that a waiver of a jury trial was invalid lies with the defendant who waived it. See Sowell v. Bradshaw, 372 F.3d 821, 832 (6th Cir. 2004). "[A]lthough recommended, there is no federal constitutional requirement that a court conduct an on-the-record colloquy with the defendant prior to accepting the jury waiver." Spytma v. Howes, 313 F.3d 363, 370 (6th Cir. 2002); See also Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir. 2002)(neither an oral colloquy, nor any other particular form of waiver, is required for a valid waiver of jury trial as a matter of federal constitutional law). Moreover, "[t]echnical knowledge of the jury trial right is not required for waiver to be effective." Spytma, 313 F.3d at 370 (internal quotation omitted). Most importantly, "there is a knowing and intelligent waiver where the defendant `understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.'" Sowell, 372 F. 3d at 836 (quoting United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990)(internal quotation omitted)). Although a criminal defendant may be deemed sufficiently informed to make an intelligent waiver of the right to jury trial if he or she is informed that a jury is composed of 12 members of community, that the defendant participates in their selection, that a jury verdict must be unanimous, and that judge alone will decide guilt or innocence in a bench trial, such elements are not constitutionally required. Id. at 832.
In the present case, the trial court advised petitioner that he had a right to have a jury decide his case. The trial court further ascertained that petitioner wished to relinquish this right and be tried by the court sitting without a jury. The trial court asked petitioner whether any threats or promises had been made to induce him to waive his right to a jury trial. Under the circumstances, the trial court's brief colloquy was constitutionally sufficient. In addition, petitioner does not deny that he signed a written waiver of jury form. Courts must give "presumptive force" to written waivers of a jury trial. Spytma, 313 F.3d at 371. Finally, the record in petitioner's case "does not disclose any evidence that petitioner was so unaware of the rudimentary elements of trial by jury that his waiver cannot stand." Id. Petitioner is not entitled to habeas relief on his claim.
A habeas petitioner must receive a certificate of appealability ("COA") in order to appeal the denial of a habeas petition for relief from either a state or federal conviction.
The Court concludes that jurists of reason would find its assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484-85. Any doubt regarding whether to grant a COA is resolved in favor of the habeas petitioner, and the severity of the penalty may be considered in making that determination. See Newton v. Dretke, 371 F.3d 250, 253 (5th Cir. 2004). Any doubts regarding the issuance of a COA in this case should be resolved in petitioner's favor, in light of the nonparolable life sentence that he is serving. The Court issues petitioner a COA. Petitioner is also granted leave to proceed on appeal in forma pauperis, as any appeal would be in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a); Foster v. Ludwick, 208 F.Supp.2d 750, 765 (E.D. Mich. 2002).
For the reasons stated above, this Court concludes that Petitioner Gilkey is not entitled to federal-habeas relief on the claims presented in his petition.
Accordingly,
