JUDITH E. LEVY, District Judge.
Prisoner Yumar A. Burks filed this habeas corpus petition under 28 U.S.C. § 2254, proceeding pro se. He was convicted of felony murder, Mich. Comp. Laws § 750.316, and first-degree child abuse, Mich. Comp. Laws § 750.136(b)(2), and now seeks habeas relief on the grounds that (1) insufficient evidence supported his conviction for first-degree child abuse and, therefore, felony murder, (2) the trial court improperly denied his request for a second-degree child abuse instruction, and, alternatively, (3) counsel was ineffective for failing to request the instruction.
For the reasons set forth below, the Court denies the petition for a writ of habeas corpus. Because an appeal would be frivolous, the Court also denies Petitioner a certificate of appealability.
Petitioner's convictions arise from the death of his son, Antonio. The Michigan Court of Appeals summarized the evidence admitted at trial as follows:
People v. Burks, 308 Mich.App. 256, 259-63 (2014). Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, arguing only that insufficient evidence supported his convictions and that the trial court erred in declining to give a second-degree child abuse instruction. The Michigan Court of Appeals held that second-degree child abuse is a necessarily included lesser offense of first-degree child abuse but otherwise affirmed, id., and Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. In lieu of granting leave, the Michigan Supreme Court vacated that part of the Court of Appeals opinion holding that second-degree child abuse is a necessarily included lesser offense of first-degree child abuse. This was because "[t]he Court of Appeals did not need to reach this issue because that instruction was never requested in the trial court." In all other respects, however, leave to appeal was denied. People v. Burks, 498 Mich. 966 (2016). This petition followed.
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:
A state court decision 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 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.
Section 2254(d), as amended by the AEDPA, "imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010). 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." Williams, 529 U.S. at 411. 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). As a result, "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Habeas relief is not appropriate unless each ground that supported the state-court's decision is examined and found to be unreasonable. See Wetzel v. Lambert, 565 U.S. 520, 525 (2012).
A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
First, Petitioner argues that the prosecutor presented insufficient evidence to support his first-degree child abuse conviction. Specifically, he claims that the prosecutor failed to satisfy the intent element beyond a reasonable doubt. And since his felony murder conviction was predicated on the first-degree child abuse conviction, Petitioner concludes that habeas relief is warranted. (Dkt. 1 at 5.)
Under Michigan law, "[a] person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical or serious mental harm to a child." Mich. Comp. Laws § 750.316b. Relatedly, "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 "[t]wo layers of deference apply to habeas claims challenging evidentiary sufficiency." McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court "must determine whether, viewing the trial testimony and exhibits 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." Brown, 567 F.3d at 205 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted)). And second, even if the Court "conclude[s] that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt. . . [it] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id.
Here, the state appellate court's sufficiency determination was far from unreasonable. When reviewing the trial record, the Michigan Court of Appeals found ample evidence from which it believed a rational trier of fact could have found the element of intent beyond a reasonable doubt. This included that Petitioner was obviously experiencing significant stress which manifested itself in erratic and aggressive ways; that he expressed frustration when Antonio would not stop crying; and that Petitioner expressed his frustration by punching holes in the walls of his home and by threatening his family. This was all in the days leading up to the baby's death. Burks, 308 Mich. App. at 264-65. The Court also noted Petitioner's irregular behavior in the hours that followed Antonio's death and the conflicting accounts of the incident that Petitioner gave to police during the subsequent investigation. Id. As the Michigan Court of Appeals concluded: "[f]rom this plethora of evidence, the jury could properly infer that defendant knowingly or intentionally caused serious harm to Antonio when he was in defendant's sole care and custody . . . ." Id. at 265.
Petitioner claims that the testimony of Dr. John Bechinski, who performed the autopsy of Antonio, supports his position. At trial, Dr. Bechinski testified that there was no way to rule out the possibility that the improper administration of CPR was a cause of one or two of Antonio's injuries. (Dkt. 7-9.) Yet even if that is true, the Court cannot "rely simply upon [its] own personal conceptions of what evidentiary showings would be sufficient to convince [the Court] of the petitioner's guilt." Brown, 567 F.3d at 205. Instead, it must ask whether the Michigan Court of Appeals "was unreasonable in its conclusion that a rational trier of fact could find [Petitioner] guilty beyond a reasonable doubt based upon the evidence presented at trial." Id. (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). The state court's disposition of Petitioner's appeal was reasonable for the reasons set forth above. Therefore, the Court denies Petitioner relief on this claim.
Petitioner next argues that he is entitled to habeas relief because the trial court erred by declining to instruct the jury on second-degree child abuse. (Dkt. 1 at 7.)
Federal courts may grant habeas relief only on the basis of federal law that has been clearly established by the United States Supreme Court. 28 U.S.C. § 2254(d). The Eighth Amendment and the Due Process Clause require that a trial court instruct the jury on lesser included offenses in the context of a capital case. Beck v. Alabama, 447 U.S. 625, 637-38 (1980) (holding that a trial court is required to instruct on lesser included offenses where the failure to do so would result in the jury being given an "all or nothing" choice of convicting on the capital charge or acquitting the defendant). However, "[t]he Supreme Court . . . has never held that the Due Process Clause requires instructing the jury on a lesser included offense in a non-capital case." McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014); see also Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001) ("[T]he Constitution does not require a lesser-included offense instruction in non-capital cases."). Because the Supreme Court has never held that due process requires lesser-included offense instructions in a non-capital case, Petitioner's claim cannot form a basis for granting habeas relief. Therefore, the Court denies Petitioner relief on this second claim.
Finally, Petitioner argues that his trial attorney was ineffective in failing to properly request a second-degree child abuse instruction. (Dkt. 1 at 8-9.) Although Petitioner failed to exhausted his remedies by not raising this claim during his state court proceedings, the Court will nevertheless addresses its merits. See Granberry v. Greer, 481 U.S. 129, 131 (1987).
An ineffective assistance of counsel claim has two components. A petitioner must (1) show that counsel's performance was deficient and that (2) the deficiency prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When evaluating an ineffective assistance of counsel claim, courts "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." Strickland, 466 U.S. at 689.
Here, Petitioner cannot show that his counsel's performance was deficient. During Petitioner's state court proceedings, the Michigan Supreme Court ruled that a second-degree child abuse instruction was never requested during his trial. Burks, 498 Mich. 966 (2016). However, this determination is clearly contradicted by the record. The trial transcript unambiguously shows that Petitioner's counsel requested a second-degree child abuse instruction and that the trial court rejected it. (Dkt. 7-11.) As a result, defense counsel was not ineffective for failing to request a second-degree child abuse instruction because he did in fact ask for it.
To the extent Petitioner is claiming ineffectiveness because defense counsel requested the instruction under a theory that led the trial court to reject it, here too, Petitioner's claim is unpersuasive. Under Michigan law, a person is guilty of second-degree child abuse when, in relevant part, either of the following apply:
Mich. Comp. Laws § 750.136b(3). On direct appeal, the Michigan Court of Appeals held that the testimony received at trial supported an instruction under either theory. Burks, 308 Mich. App. at 270. But when requesting the second-degree child abuse instruction, defense counsel solely argued that Petitioner committed a reckless act which resulted in harm to Antonio. This reckless act theory was consistent with Petitioner's testimony that, on the night of Antonio's death, Petitioner accidentally rolled over on Antonio when they were both sleeping, and that when Petitioner left Antonio alone in the bathtub for several minutes the baby became submerged under water. It was therefore reasonable for defense counsel to pursue this tact as it was consistent with Petitioner's own testimony. As such, absent evidence to the contrary, counsel's decision to focus on the reckless act theory is presumed to be the result of sound trial strategy. Strickland, 466 U.S. at 689.
Even if that were not the case, Petitioner has not shown that he was prejudiced by counsel's failure to request an instruction under the alternative theory. The Michigan Court of Appeals concluded that had the jury been so instructed, the jury's verdict would have been the same. Burks, 308 Mich. App. at 271-72. In coming to that decision, the state court again looked at the weight of evidence. This included Petitioner's inconsistent explanations of what transpired on the day of Antonio's death, his history of violence, his behavior on the morning before Antonio's death (becoming so angry that he punched holes in the wall), and evidence that he often grew frustrated when Antonio cried. Burks, 308 Mich. App. at 271. In other words, the error was harmless. And for the same reason, the Court also finds no reasonable probability that the result of the proceeding would have been different had defense counsel requested the instruction based on a different theory. Therefore, relief is additionally denied on Petitioner's third and final claim.
For the reasons set forth above, the Court will deny the petition for a writ of habeas corpus. Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the rules governing § 2254 proceedings requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." §2253(c)(2). 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, jurists of reason would not debate the conclusion that the petition fails to state a claim upon which habeas corpus relief should be granted, and denies a certificate of appealability. Petitioner will not be granted leave to proceed on appeal in forma pauperis because any appeal would be frivolous. See Fed. R. App. P. 24(a).
Accordingly, the Court
IT IS SO ORDERED.
