DENISE PAGE HOOD, Chief District Judge.
This matter has come before the Court on Corey Laron Thompson's pro se habeas corpus petition under 28 U.S.C. § 2254. Petitioner challenges his convictions for four drug offenses and four weapon offenses. He alleges that the trial judge deprived him of a fair trial by disclosing unfavorable evidence and failing to excuse three jurors for cause, the police delayed his arrest to increase his sentence, the prosecutor admitted unauthenticated photocopies in evidence, his trial attorney was ineffective for failing to make certain objections and raise a claim about the delay in Petitioner's arrest, and there was insufficient evidence supporting his convictions for possessing a gun. Having reviewed the record, the Court finds that these claims do not warrant habeas corpus relief. The petition will be denied.
Petitioner was charged with drug and firearm offenses in Huron County, Michigan. In case number 13-305653, he was charged with delivery of less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv). This charge arose from a controlled drug buy in Bad Axe, Michigan on January 9, 2013.
In case number 13-305652, Petitioner was charged with seven crimes: delivery of less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv); possession with intent to deliver less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv); possession with intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv); felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and three counts of possessing a firearm during the commission of a felony, third offense, Mich. Comp. Laws § 750.227b. Those seven charges arose from a controlled drug buy in Bad Axe on January 13, 2013.
Petitioner was tried before a jury in Huron County Circuit Court. The Michigan Court of Appeals summarized the evidence as follows:
People v. Thompson, No. 318694, 2015 WL 213299, at *1 (Mich. Ct. App. Jan. 15, 2015) (unpublished). Petitioner did not testify or present any witnesses. His defense was that the prosecution had not proved its case. Defense counsel argued to the jury that the informant was a liar, that there was no evidence Petitioner possessed the gun seized by the police, and that Petitioner happened to have the "buy money" on him because the informant gave the money to her boyfriend who handed the money to Petitioner to pay a debt.
On July 3, 2013, the jury found Petitioner guilty of all the charges. The trial court sentenced Petitioner as a fourth habitual offender to three years, two months to twenty years for the drug crimes, a concurrent sentence of one year, ten months to twenty years for the felon-in-possession conviction, and a consecutive term of ten years for the felony-firearm convictions.
In an appeal filed through counsel, Petitioner raised two sentencing claims and a challenge to the sufficiency of the evidence supporting the firearm convictions. In a pro se supplemental brief, Petitioner made six additional arguments, claiming that:
The Michigan Court of Appeals rejected Petitioner's challenge to the sufficiency of the evidence, but remanded the case to the trial court so that the court could articulate the reasons for its scoring of the sentencing guidelines. Thompson, 2015 WL 213299, at *1, *4-*5. The Court of Appeals determined that Petitioner's pro se arguments were "meritless and without support in the record." Id. at *5.
Petitioner raised the same issues, minus the sentencing claims, in an application for leave to appeal in the Michigan Supreme Court. On September 9, 2015, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Thompson, 498 Mich. 872; 868 N.W.2d 899 (2015).
On December 6, 2016, Petitioner signed his habeas petition, and on December 14, 2016, the Clerk of the Court filed the petition. Petitioner alleges as grounds for relief that:
The Court has looked to Petitioner's state appellate briefs for a fuller discussion of these claims.
The State argues that: Petitioner's evidentiary claims are not cognizable on habeas corpus review and that the evidence was admissible in any event; the United States Supreme Court has never established a claim of sentencing-entrapment; and the state appellate court's rejection of Petitioner's other claims was not contrary to, or an unreasonable application of, Supreme Court precedent. Petitioner replies that his claims are reviewable, meritorious, and supported by the record. He also continues to maintain that there was insufficient evidence he possessed a gun and that the police intentionally delayed his arrest until after the second controlled buy to increase his sentence.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires habeas petitioners who challenge "a matter `adjudicated on the merits in State court' to show that the relevant state court `decision' (1) `was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'" Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). "[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. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and `demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)." Renico v. Lett, 559 U.S. 766, 773 (2010).
"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)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103. A state-court's factual determinations are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Petitioner alleges first that the trial court violated his right to a fair trial by informing the jury venire that he had a prior conviction for armed robbery or possession of a controlled substance. This issue arose during the trial court's introductory remarks to the jury panel on the first day of trial. When reading the charges to the panel, the court stated that Petitioner was charged in count four with possessing or transporting a firearm when ineligible to do so because (i) he had been convicted of armed robbery or possession of a controlled substance and (ii) the requirements for regaining eligibility had not been met. 7/2/13 Trial Tr. at 9 (Docket No. 9-6, PageID. 322). Petitioner asserts that evidence of other acts can be unfairly prejudicial and that the trial court's disclosure of his prior criminal acts had none of the admissibility protections set forth in People v. VanderVliet, 442 Mich. 52; 508 N.W.2d 114 (1993).
The Court may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). The trial court's remark, was not evidence and it was not intended to be evidence. The trial court was explaining the elements of the felon-in-possession charge.
The court subsequently explained to the jurors that they should consider only the admissible evidence when deliberating Petitioner's case and that the court's comments and instructions were not evidence. 7/3/13 Trial Tr. at 488, 490-91 (Docket No. 9-7, PageID. 802, 804-05). Because jurors are presumed to follow a court's instructions to them, Richardson v. Marsh, 481 U.S. 200, 211 (1987); Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001), and because there was no other reference to the nature of the prior convictions,
Even if the trial court's preliminary remarks about Petitioner's prior convictions were deemed evidence, there is no clearly established Supreme Court precedent which holds that a state violates the constitutional right to due process by admitting propensity evidence in the form of prior bad acts evidence. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). The state appellate court's rejection of Petitioner's claim, therefore, was not "contrary to" any Supreme Court decision under AEDPA, id., and Petitioner has no right to relief on his claim.
Petitioner alleges in claim two that the trial court abused its discretion and deprived him of a fair trial by not excusing three jurors for cause even though the jurors knew about Petitioner's prior convictions from pre-trial publicity. The three jurors in question (Messing, Nitz, and Kaufman) deliberated Petitioner's case, see 7/3/13 Trial Tr. at 508, 510-11 (Docket No. 9-7, PageID. 822, 824-25), and Petitioner maintains that their presence on the jury could explain why the jury returned its guilty verdict in approximately an hour and twenty-four minutes.
The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . an impartial jury." U.S. CONST. amend. VI. This right "is applicable to the states via the Fourteenth Amendment," Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003), and the failure to accord an accused a fair hearing before a panel of impartial jurors violates even the minimal standards of due process. Irvin v. Dowd, 366 U.S. 717, 722 (1961). But the requirements of due process are satisfied if the jury is "capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). To prove a Sixth Amendment violation of the rights to a fair trial and an impartial jury, a habeas petitioner must demonstrate actual prejudice. Ewing v. Horton, 914 F.3d 1027, 1030 (6th Cir. 2019) (citing Lang v. Bobby, 889 F.3d 803, 811 (6th Cir. 2018)).
Juror Messing stated during voir dire that her brother went to high school with the prosecution's informant and that she (Messing) and the informant took a dance class together in high school. She said, however, that her contact with the informant occurred a number of years earlier and that she could treat the informant the same as any other witness. 7/2/13 Trial Tr. at 20-21 (Docket No. 9-6, PageID. 333-34). Ms. Messing had read about Petitioner's case in the newspaper, but she thought that she could decide the case based on the evidence at trial and not be influenced by what she may have read because she did not remember any details about the case. Id. at 22-23, PageID. 335-36. The only thing that she remembered was the informant's name because the informant was a former acquaintance of hers, but she had not seen or talked with the informant for years. Id. at 38-39, Page ID. 351-52.
Mr. Nitz stated that he had read about Petitioner's case in the paper months earlier, but that he did not remember any details of the case and he had not formed an opinion about the case as a result of what he read. He claimed that he could fairly listen to the witnesses' testimony, that he could keep an open mind, and that there was no reason why he could not sit on the jury and render a fair and impartial verdict. Id. at 62-67, PageID. 375-80.
Mr. Kaufman worked at a radio station, but he stated that he did not know anything about Petitioner's case and did not recall hearing or reading anything about the case. He thought that he could be a fair and impartial juror, and he assured defense counsel that he could find Petitioner not guilty if the prosecutor did not carry his burden of proof. Id. at 99-103, PageID. 412-16.
There is no indication in the record that the three jurors knew about Petitioner's prior convictions, and their responses during voir dire suggest that they were willing and able to decide Petitioner's case solely on the evidence presented to them. Petitioner has failed to show that he was actually prejudiced by having jurors Messing, Nitz, and Kaufman deliberate his case, and the state appellate court's rejection of Petitioner's claim as "meritless and without support in the record" was objectively reasonable. Petitioner has no right to habeas relief on his claim.
Petitioner alleges next that the police delayed arresting him after the first controlled buy to facilitate a second controlled buy and increase his sentencing liability. Petitioner contends that the police lacked a legitimate reason for postponing his arrest.
The Court of Appeals for the Sixth Circuit explained in United States v. Flowers, 712 F. App'x 492 (6th Cir. 2017), cert. denied sub nom. Alexander v. United States, 139 S.Ct. 135 (2018), and cert. denied, 139 S.Ct. 62 (2018), and cert. denied sub nom. Maxwell v. United States, 139 S.Ct. 63 (2018), that
Id. at 504. "The Sixth Circuit has not yet recognized either sentence manipulation or sentence entrapment." id. (citing Hammadi, 737 F.3d at 1048), and it declined to resolve the issue in Flowers.
More problematic for Petitioner is the fact that the Supreme Court has not officially recognized the theory of sentencing entrapment. United States v. Gardner, 488 F.3d 700, 716-17 (6th Cir. 2007). Petitioner has no right to relief on his entrapment claim because "the Supreme Court precedent that formulated the defense of entrapment does not rely on [the constitutional right to] due process, and the related concept of sentencing entrapment has never been accepted by the Supreme Court." Sosa v. Jones, 389 F.3d 644, 647 (6th Cir. 2004). The state appellate court's rejection of Petitioner's claim, therefore, was not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. Id. at 645.
The fourth habeas claim alleges that the prosecutor violated Petitioner's right to present a defense of actual innocence by admitting unauthenticated photocopies of the "buy money" as proof that he delivered drugs to the informant. Petitioner supports his claim with state law, but "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Even if Petitioner's claim were cognizable on habeas review, it lacks merit because Detective Kevin Knoblock of the Bad Axe Police Department authenticated the "buy money" at Petitioner's trial. First, he explained that, before the second controlled buy, he photocopied the serial numbers of the four twenty-dollar bills and the two ten-dollar bills used in the drug buy on September 13, 2013. Then, he identified the money that he seized from Petitioner's wallet on September 13, 2013, and he compared $100 of that money to the serial numbers on the photocopies of the "buy money." 7/3/13 Trial Tr. at 339-40, 373-76 (Docket No. 9-7, PageID. 653-54, 687-90).
Detective Knoblock's testimony satisfied the requirement of authentication. See Mich. R. Evid. 901(b)(1) (authentication of evidence through the testimony of a knowledgeable witness that a matter is what it is claimed to be). The Michigan Court of Appeals, therefore, reasonably concluded that Petitioner's claim lacked merit and had no support in the record. Petitioner is not entitled to relief on his claim.
The fifth habeas claim alleges ineffective assistance of trial counsel. Petitioner contends that his trial attorney provided ineffective assistance by failing to: (1) object to the trial court's disclosure of Petitioner's prior bad acts; (2) object to three jurors not being excused for cause; (3) raise a claim about the delay in arresting Petitioner; and (4) object to the admission of unauthenticated photocopies of the "buy money." Petitioner also alleges that the cumulative effect of these errors violated his right to effective assistance of counsel under the Sixth Amendment.
To succeed on his claim, Petitioner must show "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficient-performance prong "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688.
The "prejudice" prong "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. A defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
"The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (internal and end citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
None of defense counsel's alleged omissions in Petitioner's case rose to the level of ineffective assistance. The failure to object during voir dire to the trial court's disclosure of Petitioner's prior convictions was not ineffective assistance, because objecting to the court's remarks would have drawn more attention to them. A strategic decision not to object to damaging remarks for fear of focusing undue attention on the remarks is reasonable. Cobb v. Perini, 832 F .2d 342, 347-48 (6th Cir. 1987). To his credit, defense counsel did raise the issue in the jury's absence following voir dire. The parties and the trial court then agreed not to mention the nature of the prior convictions again.
The failure to challenge jurors Messing, Nitz, and Kaufman for cause or to object to the trial court's failure to dismiss the jurors on its own motion also was not ineffective assistance. The jurors indicated that they could be fair and would not be influenced by any information that they had read or heard about the case.
As for the delay in arresting Petitioner after the first controlled buy, there is no evidence in the record that the police delayed the arrest to increase Petitioner's sentence. In addition,
Hoffa v. United States, 385 U.S. 293, 310 (1966) (footnote omitted). There was no argument for counsel to make. United States v. Prout, 284 F.Supp.3d 140, 154 (D. R.I. 2018).
Defense counsel's failure to object to the admission of photocopies of the "buy money" did not amount to deficient performance because Detective Knoblock authenticated the evidence. An objection would have lacked merit, and "[o]mitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
Petitioner has failed to show that defense counsel's omissions amounted to ineffective assistance under the Sixth Amendment, and post-AEDPA, constitutional errors that would not individually support habeas relief cannot be cumulated to support habeas relief. Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012) (quoting Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). The state appellate court's rejection of Petitioner's claim, therefore, was not contrary to, or an unreasonable application of, Strickland.
Petitioner contends that the trial court's reinstatement of the charges was due to nepotisim between the trial judge and the Detective Kevin Knoblock of the Bad Acts Police Department. Although the judge and the detective had the same surname, the judge explained at a pretrial hearing that they were not closely related and that they had no personal relationship. When defense counsel asked the judge whether he liked the detective, the judge said, "I don't have an opinion." 6/17/13 Mot. Hr'g Tr. at 32-33 (Docket No. 9-5, PageID. 300-01). Petitioner's nepotism claim lacks merit.
Petitioner, nevertheless, maintains that the evidence was insufficient because there was no evidence that he knew about the gun, had access to it, or intended to possess it. The Michigan Court of Appeals disagreed. It determined that sufficient evidence existed for a rational juror to conclude that Petitioner had constructive possession of the firearm found in his vehicle.
The critical inquiry on review of a challenge to the sufficiency of the evidence supporting a criminal conviction is
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) (emphases in original).
Under AEDPA, the Court's "review of a state-court conviction for sufficiency of the evidence is very limited," Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018), because Jackson claims are "subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, it is the responsibility of the jury to decide what conclusions should be drawn from the evidence admitted at trial. Id. at 650 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). "And second, on habeas review, `a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Id. (quoting Cavazos, 565 U.S. at 2); see also Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (stating that "two layers of deference apply [to a sufficiency-of-the-evidence claim], one to the jury verdict, and one to the state appellate court"), cert. denied, 138 S.Ct. 1283 (2017).
Thomas, 898 F.3d at 698.
The Jackson "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law," Jackson, 443 U.S. at 324 n.16, and, as the Michigan Court of Appeals explained,
Thompson, 2015 WL 213299, at *2. When applying these principles to Petitioner's case, the Court of Appeals noted that
Id.
Although there was no evidence that Petitioner actually used or even handled the gun, it was close to both him and the controlled substances at the time of his arrest, and the informant saw a gun in the back of the vehicle when she went with Petitioner to make a drug delivery about a week earlier. 7/2/13 Trial Tr. at 214, 235-36, 242-44 (Docket No. 9-6, PageID. 527, 548-49, 555-57). The jury could have inferred that Petitioner knew about the gun, had access to it, and also had the power and intent to control the gun to protect himself, if the need arose, before, during, and after his drug transactions.
A rational juror could have concluded from the evidence taken in the light most favorable to the prosecution that Petitioner constructively possessed the gun found in the vehicle that he was driving at the time of his arrest. The Michigan Court of Appeals reasonably concluded that the jury's verdict was supported by sufficient evidence. Petitioner has no right to relief on his claim.
The state appellate court's adjudication of Petitioner's claims was not contrary to Supreme Court precedent, an unreasonable application of Supreme Court precedent, or an unreasonable application of the facts. The state court's decision also was not so lacking in justification that there was an error beyond any possibility for fairminded disagreement. The Court, therefore, denies the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court's decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b)(1). 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). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists could disagree with the Court's resolution of Petitioner's sixth claim regarding the sufficiency of the evidence supporting the firearm offenses. The Court, therefore, grants a certificate of appealability on the sixth habeas claim. The Court declines to grant a certificate of appealability on Petitioner's other claims because reasonable jurists could not disagree with the Court's resolution of those claims, nor conclude that the claims deserve encouragement to proceed further. Petitioner may proceed in forma pauperis on appeal because he was granted leave to proceed in forma pauperis in this Court and because an appeal of the Court's decision on his sixth claim could be taken in good faith.
