GEORGE CARAM STEEH, District Judge.
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
The petition raises four claims: (1) Petitioner's right to a public trial was violated when the courtroom was cleared of members of the public during his preliminary examination, (2) Petitioner was denied adequate notice of the charges because the felony information omitted the element of malice from the felony murder charge, (3) Petitioner's right to be personally present, his right to confront witnesses, and his right to counsel were violated during two mid-trial visits to the crime scene, and (4) Petitioner was denied the effective assistance of counsel by his attorney's failure to investigate prosecution witness Deonte Smith prior to trial.
The Court finds that Petitioner's claims are without merit or barred by his state court procedural defaults. Therefore, the petition will be denied. The Court will, however, grant a certificate of appealability with respect to Petitioner's third claim, but it will deny a certificate of appealability with respect to his other claims.
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. Edwards, 2015 WL 1069275, at *1-2 (Mich. Ct. App. March 10, 2015).
Following his conviction and sentence, Petitioner filed an appeal of right. His appellate counsel filed an amended brief on appeal, raising what now form his four habeas claims among the six claims raised:
Petitioner also filed a supplemental pro se brief raising an additional five claims:
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Edwards, 2015 WL 1069275. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court filed by his current counsel. The application raised what now form his four habeas claims, as well as additional claims not present in this action. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Edwards, 870 N.W.2d 68 (Mich. Oct. 15, 2015)(Table).
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) (per curiam), 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." Richter, 562 U.S. at 103 (internal quotation omitted).
Petitioner's first claim asserts that his right to a public trial was violated when the state district judge cleared members of the public from the courtroom during the first day of the preliminary examination. Petitioner claims that the error was prejudicial because after the courtroom was cleared witness Deonte Smith provided what Petitioner claims is the only evidence that the murders were perpetrated during the course of a robbery. Respondent asserts in part that the claim is procedurally defaulted because no contemporaneous objection was made to the closure of the courtroom.
The Sixth Amendment to the United States Constitution guarantees that a criminal defendant, "shall enjoy the right to a . . . public trial." U.S. Const. Amend. VI. This right is made applicable to the States through the Fourteenth Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re Oliver, 333 U.S. 257 (1948)). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." Id., at 270 n.25 (quotation marks and citation omitted). "In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Waller v. Georgia, 467 U.S. 39, 46 (1984).
The Waller Court identified four factors a court must consider, and findings a court must make, before excluding members of the public from the courtroom: (i)"the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced," (ii) "the closure must be no broader than necessary to protect that interest," (iii) "the trial court must consider reasonable alternatives to closing the proceeding," and (iv) "it must make findings adequate to support the closure." Id. at 48.
Like many other constitutional rights held by the criminally accused, however, the right to a public trial may be forfeited or waived if not asserted. See Levine v. United States, 362 U.S. 610, 619 (1960) ("The continuing exclusion of the public in this case is not to be deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made and affording the judge an opportunity to avoid reliance on it. This was not a case of the kind of secrecy that deprived petitioner of effective legal assistance and rendered irrelevant his failure to insist upon the claim he now makes. Counsel was present throughout, and it is not claimed that he was not fully aware of the exclusion of the general public.").
As the Sixth Circuit explained:
Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009).
Here, neither counsel for Petitioner nor counsel for his co-defendant objected to the removal of members of the public during the preliminary examination.
The record indicates that for about a half-hour during the first day of the preliminary examination, proceedings were interrupted by repeated disturbances by members of the public, prompting the court to remove member of the public from the hearing. In the midst of an otherwise unremarkable examination of a witness by the prosecutor during the preliminary examination, there appears an alarming entry in the record: "(At 3:54 p.m. to 3:55 p.m., riot in courtroom)." Dkt. 7-3, at 76. The next fifteen pages of the record describe the tumult in the courtroom and the court's efforts to retain control over the proceedings:
At no point in the proceedings did either attorney for the defendants object to any of the actions of the court. On the next morning of the preliminary examination the court indicated that it had entered an order agreed upon by the parties limiting access of the public for the remainder of the preliminary examination:
Dkt. 7-5, at 3-5.
"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A four-part test is used to determine whether a claim is procedurally defaulted: (1) there exists a state procedural rule that is applicable to the petitioner's claim and the petitioner failed to comply with the rule, (2) the state courts actually enforced the state procedural sanction, (3) the state procedural ground is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim, and (4) the petitioner has not demonstrated cause for failing to follow the procedural rule and actual prejudice. Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011).
The first inquiry is whether there exists a procedural rule applicable to Petitioner's claim, and whether Petitioner violated it. Michigan courts "have long recognized that, in general, an issue is not properly preserved for appeal if it is not raised before the trial court." People v. Bauder, 712 N.W.2d 506, 510 (Mich. Ct. App. 2005) (citing People v. Grant, 520 N.W.2d 123, 128 (Mich. 1994)). Petitioner's counsel did not comply with the procedural rule when he failed to object to the state district court's actions during the disruptions on the first day of the preliminary examination. When the matter was discussed the next morning, counsel agreed to the Court's order limiting access of the public to the remainder of the preliminary examination, and he made no objection regarding the court's actions of the previous day. Accordingly, Petitioner failed to comply with Michigan's contemporaneous objection rule, and, therefore, the first prong of the procedural default test is met.
Next, the Michigan Court of Appeals enforced the procedural sanction. In determining whether state courts have relied on a procedural rule to bar review of a claim, a court looks to the last reasoned opinion of the state courts and presumes that higher state courts not rendering an explained decision enforced the bar as well. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Furthermore, this court has recognized that "[p]lain error analysis. . . is not equivalent to a review of the merits," and plain error review enforces rather than waives procedural default rules. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Hinkle, 271 F.3d at 244 (characterizing plain error review as the enforcement of a procedural default). The Michigan Court of Appeals, the last state court to issue a reasoned opinion reviewing Petitioner's public trial claim, found that it was subject to plain error review:
Edwards, 2015 WL 1069275, *3. The Michigan Supreme Court subsequently denied leave to appeal by unexplained order. Therefore, the state courts enforced the contemporaneous-objection procedural sanction.
Third, the Court must determine whether the procedural bar was an "adequate and independent" state ground foreclosing a merits review of Petitioner's claim. The adequate and independent state ground doctrine "applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman, 501 U.S. at 729-30. "The adequacy of a state procedural bar turns on whether it is firmly established and regularly followed; a state rule is independent if the state court actually relies on it to preclude a merits review." Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004) (citation omitted)). The Sixth Circuit has recognized that Michigan's contemporaneous objection rule is regularly followed. Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (citing Draper v. Adams, No. 98-1616, 2000 WL 712376, at *9 (6th Cir. 2000) (unpublished table decision)).
Petitioner argues that enforcement of the contemporaneous objection rule does not provide an adequate basis to bar review of his public trial claim because the Supreme Court has enforced the right despite a lack of objection at trial. See Dkt. 8, Reply Brief, at 19-22 (citing In re Oliver, 333 U.S. 257, 272 (1948); Gannet Co v. DePasquale, 443 U.S. 368, 375 (1979); Richmond Newspapers v. Virginia, 448 U.S. 555, 560 (1980); Waller, 467 U.S. at 42 n. 2; Presley, 130 S.Ct. at 724 ("The public has a right to be present whether or not any party has asserted the right.")). Most of the cases relied upon by Petitioner, however, do not concern application of the existent habeas corpus procedural-default doctrine to a public trial claim. The one case that does, Waller, undermines Petitioner's position. The footnote cited by Petitioner states that four of the five habeas petitioners had objected at trial, and that as to the petitioner that did not object, the case was remanded to determine whether his public trial claim was procedurally barred. Accordingly, the Waller court recognized that a contemporaneous objection rule is an adequate ground for defaulting a public trial claim. Moreover, the Court notes that under binding Sixth Circuit precedent the procedural default doctrine applies to public trial claims. See Bickham v. Winn, 888 F.3d 248, 251 (6th Cir. 2018); Johnson, 586 F.3d at 444; (6th Cir. 2009). Finally, the Court notes that the justification for closing the proceeding here-rioting and ensuring the physical safety of members of the public-was sufficient to overcome the public and media's First Amendment right to an open and public proceeding. The Court cannot conceive of a more appropriate reason for closing a proceeding.
Because Petitioner failed to comply with a state procedural rule constituting an adequate and independent state ground for the state court's decision, review of his public trial claim is barred unless he can "demonstrate . . . that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error." Stone, 644 F.3d at 346 (quoting Maupin, 785 F.2d at 138).
"[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner's reply brief does not attempt to assert cause to excuse his default, choosing instead to argue that Respondent waived the defense or that the defense does not apply to public trial claims. Accordingly, Petitioner has completely failed to demonstrate cause to excuse the procedural default of his public trial claim.
Nevertheless, it should be noted that Petitioner's supplemental pro se brief filed in the Michigan Court of Appeals argued that his counsel was ineffective for failing to object to the closure of the courtroom. Ineffective assistance of counsel only suffices if the deficient performance purporting to provide cause for the default would be sufficient to merit its own independent constitutional claim. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). In order to prevail on a claim of ineffective assistance of counsel, Petitioner "must show both that his counsel's performance was deficient and that the deficient performance prejudiced the defense." Hodges v. Colson, 711 F.3d 589, 613 (6th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To show deficiency, Petitioner must establish that "counsel made errors so serious that [he] was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. Petitioner has failed to demonstrate that his counsel performed deficiently in failing to object to the closure of the courtroom. Specifically, nothing in the record suggests that the court would have been inclined to keep the courtroom open to the unruly mob present had an objection been made by counsel. Rather, it is reasonable to conclude that had defense counsel asserted Petitioner's right to a public proceeding and cited Waller, the court simply would have gone over the Waller factors and ruled that closure was nonetheless warranted.
Where, as here, a petitioner fails to show cause, the Court need not consider whether he has established prejudice. See Smith v. Murray, 477 U.S. 527, 533 (1986); Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).
Finally, Petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception to the procedural default rule requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[A]ctual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998) (citation omitted). "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324. Petitioner has made no such showing. This claim, therefore, is procedurally defaulted.
Petitioner's second claim asserts that he had insufficient notice of the charges against him because the Felony Information failed to notify him of the requirement that first-degree felony murder requires that the accused acted with malice. Petitioner further asserts that, contrary to the decision of the Court of Appeals rejecting this claim, a defective charging instrument cannot be cured by the testimony offered at a preliminary examination or by the language contained in a different count of the charging document.
As it did with Petitioner's first claim, the Michigan Court of Appeals found that review of this claim was limited to "plain error" because the claim was not preserved in the trial court. Edwards, 2015 WL 1069275, *7. Accordingly, for the same reasons outlined above, review of Petitioner's second claim is procedurally barred from review, and Petitioner has failed to demonstrate cause to excuse the default.
Nevertheless, the claim is without merit. The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation." U.S. Const., Amend. VI. The Sixth Circuit has explained this right, as applied to the States through the Fourteenth Amendment, as follows:
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
After finding that the claim was defaulted, the Michigan Court of Appeals rejected Edwards' claim as follows:
Edwards, 2015 WL 1069275, *8.
This decision was not unreasonable. Petitioner's argument hinges on the premise that it is unreasonable to expect a lay person to understand that a charging document that alleged the accused "did while in the perpetration or attempted perpetration of a larceny, murder one [sic] Cedell Leverett; contrary to MCL 750.316(1)(b)," required the prosecutor to prove that he acted with malice. See, e.g., Dkt. 8, Petitioner's Reply, at 24 ("No fair-minded jurist would expect a non-lawyer criminal defendant to review a charging instrument and somehow recognize that a critical element was amiss from one of the charged offenses, then expect the same layman criminal defendant to look for the omitted element amongst another separate and distinct charge and carry that element over to the defective charge.").
The argument completely ignores the fact that at all times during state court proceedings Petitioner was represented by presumptively competent counsel. The Supreme Court has stated that "`it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of [the offense charged]." Marshall v. Lonberger, 459 U.S. 422, 436 (1983) (quoting Henderson v. Morgan, 426 U.S. 637, 647 (1976)). Here, the requirement to prove malice to support a charge of first-degree felony murder was established by the Michigan Supreme Court in 1980. See People v. Aaron, 409 Mich. 672 (1980). Aside from the fact that the charging document clearly accused Petitioner of murdering the victim during the perpetration of a larceny (and murder requires malice), it is appropriate to presume that Petitioner's attorneys informed him of the nature of the felony murder charge, including the malice element that had been established in Michigan for over thirty years. Petitioner made no allegation in the state courts-and he makes none here-that his counsel failed to inform him of the nature of the charges against him.
For the same reasons, Petitioner has failed to demonstrate that he was actually prejudiced by his counsel's failure to object to the felony information so as to excuse the procedural default of this claim.
Petitioner's second claim is both procedurally barred from review and without merit.
Petitioner's third claim raises his strongest challenge to the validity of his conviction. Petitioner asserts that several of his constitutional rights were violated during two trips to the crime scene. The first trip occurred without Petitioner being present, and the second trip occurred outside both Petitioner or his counsel's presence. Petitioner alleges that both visits violated his Sixth Amendment right to be personally present at all critical stages of the proceedings, that the first visit denied his Sixth Amendment right to face-to-face confrontation when one of the witnesses also attended the crime scene visit, and that the second visit violated his Sixth Amendment right to counsel during a critical stage of the proceedings.
The Michigan Court of Appeals found in part that the claim was defaulted by Petitioner's failure to object to the visits:
Edwards, 2015 WL 1069275, *8-10 (footnotes omitted).
The record shows that neither Petitioner nor Royster objected to either visit on the grounds now asserted in the habeas petition. The prospect of a visit to the crime scene was first broached during the second day of trial. Dkt. 7-13, at 114. The court indicated that "[w]e had a trip planned on side bar tomorrow at lunch. The plan is to go to the crime scene just with the attorneys." Id. Both defense attorneys initially objected to the visit on the grounds that their clients requested to be present. Id. In view of the objection, the court stated, "[t]hen we're not going . . . If they change their mind, they change their mind." Id.
It is evident from the record that the defendants must have, in fact, changed their minds because two days later the court indicated that the trip had taken place. Dkt. 7-15, at 36. The court stated that it, along with the prosecutor, both defense attorneys, police officers, and prosecution witness Deborah Gaca, went the scene of the shooting. Id. The court further stated that the parties had agreed to ask Gaca where she had been positioned during the shooting, and whether she moved at any point:
Id. at 36-37.
The Court then indicated that it visited the scene on another occasion, and it essentially asked the parties whether they had any objection to the second visit:
Id. at 37-38.
Despite the defendants' initial demand to be personally present at any visit, the record demonstrates that two visits took place, and when the visits where discussed on the record, neither defendant objected on any basis. Accordingly, when the Michigan Court of Appeals reviewed the claims involving the visits, it found review was limited to the plain error standard due to the failure of the defendants to object. The Michigan Court of Appeals stated:
Edwards, 2015 WL 1069275, *9.
Accordingly, as with Petitioner's previous claims, this claim is also procedurally defaulted. The decision of the Court of Appeals indicates that it actually enforced Michigan's contemporaneous objection rule by noting Petitioner's failure to assert his arguments in the trial court, and as discussed above, the rule is an adequate and independent state ground foreclosing review of Petitioner's constitutional claim.
The Court notes the importance of application of the procedural default rule to this claim. With respect two of Petitioner's legal arguments, the claims might have been resolved on the basis that there was otherwise strong evidence of Petitioner's guilt, and the limited information gleaned at the visits was not overly prejudicial to his defense. With respect to Petitioner's right to be personally present, the right "is not absolute, but exists only when his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." United States v. Henderson, 626 F.3d 326, 343 (6th Cir. 2010) (quotation marks omitted)). "In other words, the defendant's presence is not guaranteed when it would be useless, but only to the extent that a fair and just hearing would be thwarted by his absence." Id. (quotation marks omitted). Petitioner has not indicated how his personal presence at either visit would have been useful and was required for a fair and just hearing.
Similarly with respect to the Confrontation Clause claim, any violation is subject to harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). And here, Petitioner has not shown how his inability to cross-examine or confront Gaca regarding what she saw or said on either visit "had a substantial and injurious effect or influence in determining the [trial court's] verdict." Fry v. Pliler, 551 U.S. 112, 116 (2007). Indeed, as indicated below, Gaca's estimation of being only twenty feet from the scene of the shooting was revised in Petitioner's favor to about fifty feet after the visit. The visit benefitted Edwards defense in that it placed the lone eyewitness to the shooting further away than she thought.
It is reasonably debatable, however, whether the same analysis applies to Petitioner's right-to-counsel claim. The Supreme Court has clearly established that the complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice. United States v. Cronic, 466 U.S. 648, 659 (1984). The existence of certain structural defects in a trial, such as the deprivation of the right to counsel, requires automatic reversal of the conviction because it infects the entire trial process. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). In Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court held that the right to counsel is "`so basic to a fair trial that [its] infraction can never be treated as harmless error.'" Id. at 88, quoting Chapman v. California, 386 U.S. 18, 23 n.8 (1967). Similarly, the Sixth Circuit, citing Cronic, held that "[h]armless error analysis is never appropriate when a criminal defendant is denied counsel during a critical stage of his trial, because prejudice is always presumed in such circumstances." Hereford v. Warren, 536 F.3d 523, 541 (6th Cir. 2008), citing Cronic, 466 U.S. at 658. The Michigan Supreme Court considers a fact-finder's viewing of the crime scene to be a critical stage of the proceeding. See, e.g., People v. Mallory, 421 Mich. 229, 247 (1984). Thus, counsel's absence at the trial court's second visit arguably would have required automatic reversal of Petitioner's convictions had a contemporaneous objection been made, and had the trial court then failed to correct the error.
On the other hand, Respondent asserts that the automatic-reversal rule does not apply to the unobjected to violation here. Support exists for this assertion a well. In Satterwhite v. Texas, 486 U.S. 249, 257 (1988), the Supreme Court held that the automatic reversal rule for a denial of counsel during a critical stage does not apply to all cases. The Court stated that even where counsel is absent during a critical stage, harmless error analysis is nevertheless appropriate "where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial." Id. Here, not unlike Satterwhite, the absence of counsel was limited to the admission of the trial court's observations regarding the lighting conditions at the scene of the crime, an issue that did not have a substantial or injurious impact on the result of the trial.
Furthermore, in Woods v. Donald, 135 S.Ct. 1372, 1375 (2015), the habeas petitioner claimed that he was entitled to habeas relief without a need for demonstrating prejudice where he was denied his right to counsel when witnesses testified at his trial regarding his co-defendant's guilt. The Supreme Court held that the Sixth Circuit erroneously granted relief because there was no clearly established Supreme Court law holding that the reception of evidence regarding co-defendants is a critical stage of the proceedings against the petitioner. Id. at 1377. The Court stated, "Cronic applies in `circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.'" Id. at 1378. Here, the trial court's second view of the crime scene was performed "just [to] look at the lighting around the place." Dkt. 6-13, at 37-38. The visit was inconsequential enough that neither defense counsel opted to put anything on the record, and the trial court's findings of fact after trial did not rely on the lighting he observed as a reason to find Petitioner guilty of the offense.
All of this is to say why the application of the contemporaneous objection rule to this claim is especially appropriate here. If, notwithstanding Satterwhite and Woods, the failure to have counsel present at the second visit was a structural error creating the possibility of automatic reversal, then the error could have been easily remedied by a timely objection after the trial court asked the parties if they had anything they wished to place on the record. Had an objection on the right-tocounsel grounds been made, the trial court could have simply disregarded any observations made during the second visit, thereby curing any error. Granting relief in the absence of an objection would, in effect, create a windfall for counsel's failure to voice an objection when he was invited to do so.
Accordingly, review of Petitioner's third claim is procedurally barred by his failure to object to the visits to the crime scene absent a showing of cause and prejudice. For the reasons stated, Petitioner's counsel was not ineffective for failing to object to the crime scene visit. It appears from the record that counsel wanted the visit to take place, and the observations made there benefitted him by placing Gaca further away from the scene than she estimated in her testimony.
Moreover, Petitioner has failed to demonstrate that he was actually prejudiced by his counsel's failure to object because the evidence presented against him at trial was very strong. Aside from admitting to Deonte Smith that he committed the crime, the testimony and tether evidence that indicated he was at the mall at the time of the crime, and the eyewitness identification testimony of Gaca — there is the very damning evidence that the week after the murder Petitioner was seen throwing the murder weapon under a parked car when he fled from another mall and was then arrested at the scene. A successful objection to the crime scene visits would not, with reasonable probability, have resulted in a more favorable outcome for Petitioner. Strickland, 466 U.S. at 694. As such, he cannot demonstrate cause to excuse his procedural default.
Petitioner has failed to demonstrate entitlement to habeas relief with respect to his third claim.
Petitioner's fourth claim asserts that his trial counsel failed to adequately conduct a pretrial investigation regarding prosecution witness Deonte Smith. Petitioner asserts that neither his nor his co-defendant's attorneys ever interviewed Smith prior to the preliminary examination or trial. Petitioner obtained a purported affidavit from Smith during his direct appeal in which Smith claims that his trial testimony was false. Specifically, the affidavit asserts that Smith never heard Edwards brag about being involved in the murder or that the murder occurred during the perpetration of a robbery. The document further claims that Smith refused to testify at trial because he knew that it would be in the public presence and people would know that it was false.
After reciting the controlling constitutional standard, the Michigan Court of Appeals rejected the claim as follows:
Edwards, 2015 WL 1069275, *11 (footnote omitted).
To establish ineffective assistance of counsel, a defendant must show both that: (1) counsel's performance was deficient, i.e., "that counsel's representation fell below an objective standard of reasonableness"; and (2) the deficient performance resulted in prejudice to the defense. Strickland, 466 U.S. at 687-88. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. On habeas review, the question becomes "not whether counsel's actions were reasonable," but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105.
The Michigan Court of Appeals did not unreasonably apply the Strickland standard when it denied relief with respect to this claim. Contrary to Petitioner's allegations, it is clear that his counsel was not unprepared for Deonte Smith's testimony. During the preliminary examination, counsel cross-examined Smith regarding the gap of more than a year that he waited to tell anyone about the event. Dkt. 7-3, at 125-26. The examination made it clear that counsel was familiar with Smith's statement to police. Petitioner has failed to demonstrate that Smith was open to speaking with counsel prior to the preliminary examination, as Smith's affidavit does not assert that he was willing to do so. Moreover, it is unclear how an interview would have changed anything that occurred at the preliminary examination or at trial. Smith may now say he testified falsely, but he does not claim that he would have "come clean" earlier had he only been interviewed by defense counsel.
Finally, even had counsel's investigation into Smith somehow aided his efforts in cross-examination, there is still not a reasonably probability that the result of the trial would have been different given the very strong case made against Petitioner. Further investigation of Smith would have done nothing to discredit Gaca, who watched Petitioner murder the victim. It would have done nothing to counter the testimony of the police officer who recovered the murder weapon Petitioner was seen throwing under a car. Nor would it have countered the tether data showing that Petitioner was at the murder scene. Accordingly, Petitioner has failed to show that he was prejudiced by his counsel's alleged failure to further investigate or interview Deonte Smith prior to trial.
As all of Petitioner's claims are procedurally barred from review or without merit, the petition will be denied.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability issued. 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). Courts must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, "a 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." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations omitted). Here, jurists of reason could debate the Court's conclusion that Petitioner is not entitled to habeas relief with respect to his third claim. A reasonable jurist might dispute this Court's conclusion that the claim is procedurally defaulted and whether the alleged violation of Petitioner's right to counsel at the second crime scene visit requires automatic reversal.
The Court finds that the resolution of Petitioner's remaining claims is not reasonably debatable, so a certificate of appealability will be denied with respect to them.
Accordingly, the Court 1)
