LINDA V. PARKER, District Judge.
Tre Johnson ("Petitioner") is presently in the custody of the Michigan Department of Corrections, pursuant to convictions for first-degree murder based on alternative theories of premeditated murder and felony murder, possession of a firearm during the commission of a felony, and unlawfully driving away an automobile. His petition raises three claims for relief: his involuntary confession should have been suppressed; insufficient evidence supported the convictions; and the jury was improperly instructed that Petitioner had a duty to retreat and counsel was ineffective for failing to object to the instruction. The Court finds that none of Petitioner's claims satisfy the strict standards for habeas corpus relief. The petition will be denied.
Petitioner's convictions arise from the shooting death of Leonard Graham, III. The Michigan Court of Appeals set forth the following relevant facts in its decision affirming Petitioner's convictions:
People v. Johnson, No. 321575, 2015 WL 5495975, at *1-3 (Mich. Ct. App. Sept. 17, 2015). These facts are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Petitioner was convicted by a jury in Oakland County Circuit Court and, on April 21, 2014, sentenced to life imprisonment for the murder conviction, to be served consecutively to concurrent prison terms of two years for the felony-firearm conviction and 213 days for the unlawfully driving away an automobile conviction.
Petitioner's convictions were affirmed on appeal. Johnson, 2015 WL 5495975, leave to appeal denied, 876 N.W.2d 554 (Mich. 2016).
Petitioner then filed the pending petition for a writ of habeas corpus. He asserts the following grounds for relief:
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 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 411.
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) (internal citations omitted). 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)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. Pursuant to section 2254(d), "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. A "readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law." Woodford v. Viscotti, 537 U.S. 19, 24 (2002).
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. Id. Moreover, for claims that were adjudicated on the merits in state court, habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Petitioner's first claim for relief concerns the admissibility of his statements to police. He argues that his confession and waiver of his Miranda rights were involuntary for these reasons: (1) he was interrogated numerous times for several hours, resulting in a total interrogation time of approximately nine hours; (2) he was held "completely cut off from his family and anyone else for 24 hours"; (3) he was deprived of sleep; (4) he may not have been provided food; (5) the officers repeatedly told defendant they did not believe him, increasing the pressure to confess; and (6) he was young and inexperienced, having never have been convicted of a crime.
Prior to trial, the trial court conducted an evidentiary hearing pursuant to People v. Walker, 132 N.W.2d 87 (Mich. 1965), to determine the voluntariness of Petitioner's statement to police. Two witnesses testified: Christopher Lanfear, a deputy with the Oakland County Sheriff's Department, and William Smarsty, a detective with the City of Southfield Police Department.
Deputy Lanfear began interviewing Petitioner at approximately midnight on September 20, 2013. The interview occurred after Petitioner had been interviewed at the Wixom Police Department for approximately one hour and twenty minutes. Prior to the interview, Deputy Lanfear advised Petitioner of his Miranda rights and Petitioner signed an advice of rights form. (ECF No. 10-4 at Pg. ID 204-07.) Ultimately, Petitioner admitted that he shot Graham on the night of September 14th, when the two were fighting and struggling inside Petitioner's apartment. (Id. at 211.) Deputy Lanfear contacted the Southfield Police Department because Petitioner's apartment was located in Southfield.
Detective Smarsty testified that he interviewed Petitioner following his polygraph examination. At that point, Petitioner was in custody and before questioning him, Detective Smarsty advised Petitioner of his Miranda rights. (Id. at 226-29.) The interview began around 3:30 a.m., and lasted approximately two hours. (Id. at 229.) Detective Smarsty noted that Petitioner did not appear to be under the influence of alcohol or drugs. Detective Smarsty questioned Petitioner about his physical struggle with Graham. Detective Smarsty found Petitioner's account incredible. (Id. at 229-30.)
At approximately 5:30 p.m. on September 20th, Detective Smarsty questioned Petitioner a second time after learning that the medical examiner found no gunshot residue on the victim and concluded that the gun was fired more than two feet from the victim's head. (Id. at 234.) Detective Smarsty informed Petitioner that he was protected under the same Miranda rights explained to him earlier in the day. (Id. at 236-37.) The detective offered Petitioner something to eat or drink before the interview. Petitioner declined. (Id. at 237.) Detective Smarsty told Petitioner that his version of what occurred was inconsistent with what the medical examiner found and Petitioner altered his story (Detective Smarsty was not asked in what ways Petitioner changed his story). (Id. at 237.) The second interview lasted approximately one hour. (Id. at 242.)
Petitioner chose not to testify at the Walker hearing. (Id. at 53-54.)
Based upon the Walker hearing testimony and a review of the interview tapes, the trial court denied Petitioner's motion to suppress the confession. The trial court summarized its findings as follows:
So this Court is not (ph) going to suppress the defendant's confession. (3/13/2014 Tr. at 7, ECF No. 10-5 at Pg. ID 267.)
The Michigan Court of Appeals also denied Petitioner's claim:
Johnson, 2015 WL 5495975, at *6-8.
The Fifth Amendment privilege against compulsory self-incrimination bars the admission of involuntary confessions. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986). A confession is considered involuntary if: (1) the police extorted the confession by means of coercive activity; (2) the coercion in question was sufficient to overbear the will of the accused; and (3) the will of the accused was in fact overborne "because of the coercive police activity in question." McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988). The ultimate question is "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." Miller v. Fenton, 474 U.S. 104, 112 (1985). Factors to consider include the presence or absence of police coercion (a "crucial element"), length of interrogation, location of interrogation, continuity of interrogation, the suspect's maturity and education, the suspect's physical condition and mental health, and whether the suspect was advised of his or her Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94 (1993). A confession may not be deemed involuntary absent coercive police activity. Connelly, 479 U.S. at 167 (stating that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause"). The decision of a state court to credit certain testimony is "presumed to be correct." 28 U.S.C. § 2254(e)(1); see also Ramonez v. Berghuis, 490 F.3d 482, 490-91 (6th Cir. 2007) (noting that § 2254(e)(1) standard of review applies to a state court's credibility determinations in the context of a hearing on a motion to suppress a confession).
The Court has reviewed the videotaped interviews that are part of the state court's and this Court's records. Nothing in the tapes contradicts or calls into question the state courts' conclusion that Petitioner's statements were voluntary. Petitioner no doubt is distressed in portions of the interviews. At the same time, he clearly understands the proceedings and is responsive to questions. The videos show police asked Petitioner whether he needed food or drink. He declined these offers. Petitioner does not ask to speak with any family members in the videos. The questioning officers remain calm throughout all of the interviews; their tone is conversational, not confrontational. Finally, although the Petitioner may not have had any prior contact with law enforcement, he informed police officers that he was studying criminal justice at a community college. The Court notes that the extent of Petitioner's criminal justice studies is not known and is deemed to be an insignificant factor in its analysis.
Considering the totality of these circumstances, the Michigan Court of Appeals' decision that Petitioner's statements were made voluntarily, knowingly, and intelligently was not contrary to or an unreasonable application of federal law. Therefore, habeas relief is denied on this claim.
In his second claim, Petitioner asserts that insufficient evidence supported his first-degree murder conviction. He argues that the prosecution failed to present sufficient evidence to prove the elements of either alternative theory of first-degree murder.
"[T]he 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). On direct review, review of a sufficiency of the evidence challenge must focus on 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, "[t]he Jackson standard must be applied `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
"Two 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, 443 U.S. at 319). Second, if the Court were "to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id. In short, "deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; [then] deference should be given to the [state court's] consideration of the trierof-fact's verdict, as dictated by AEDPA." Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (citation omitted). The Jackson standard is "exceedingly general" and therefore Michigan courts are afforded "considerable leeway" in its application. Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011).
Under Michigan law, to convict a defendant of first-degree premeditated murder, the prosecution must prove that the defendant intentionally killed the victim and that the killing was premeditated and deliberate. People v. Anderson, 531 N.W.2d 780, 786 (Mich. Ct. App. 1995). Premeditation and deliberation may be established by evidence showing: "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." People v. Schollaert, 486 N.W.2d 312, 318 (Mich. Ct. App. 1992). Direct or circumstantial evidence and reasonable inferences arising from that evidence may constitute satisfactory proof of the elements of an offense, People v. Jolly, 502 N.W.2d 177, 180 (Mich. 1993), including the identity of the perpetrator, Dell v. Straub, 194 F.Supp.2d 629, 647 (E.D. Mich. 2002), and the defendant's intent or state of mind, People v. Dumas, 563 N.W.2d 31, 34 (Mich. 1997).
The Michigan Court of Appeals held sufficient evidence supported both elements of first-degree premeditated murder. The state court cited several key pieces of evidence. Petitioner told police that Graham choked him for approximately 10 seconds, then the two separated and sat upon separate couches. After each had retreated to their respective couches, Petitioner stood up, grabbed gun from underneath the couch cushion, took a few steps back and fired. Johnson, 2015 WL 5495975, at *9. The state court of appeals held that, even accepting Petitioner's version of events, the evidence "was sufficient for a jury to find premeditation and deliberation beyond a reasonable doubt because defendant acted after the physical altercation had ended and Graham was sitting on a separate couch." Id. The time during which Petitioner retrieved the gun, stepped back, and aimed the gun at Graham afforded Petitioner sufficient time "to take a second look." Id. (quotation marks and citation omitted).
The jury also heard evidence concerning Petitioner's actions after the murder. He attempted to conceal Graham's death, hid Graham's body, and gave police multiple versions of what transpired. Id. The prosecution also presented evidence that Petitioner coveted Graham's white Chevrolet Impala—before Graham's death, Petitioner told the mother of his child that he would soon be given a Chevrolet Impala. Id. Indeed, after Graham's death, Petitioner treated the Impala as his own, covered a distinctive sticker in the back window, and loaded many personal items into the car. Id. The Michigan Court of Appeals held that all of these circumstances supported a conclusion that Petitioner acted with premeditation motivated by a desire to obtain Graham's car.
The Michigan Court of Appeals' holding is amply supported in the record. Petitioner argues that the state court failed to consider that Graham attacked Petitioner before the shooting. Even assuming that Graham did so, Petitioner nevertheless could have acted with premeditation. According to Petitioner's own statement, he and Graham each retreated to different couches before the shooting. Petitioner retrieved the gun and stepped back before shooting Graham. Although the minimum time required under Michigan law to premeditate "is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" Williams v. Jones, 231 F.Supp.2d 586, 594-95 (E.D. Mich. 2002). "[A]n opportunity for a `second look' may occur in a matter of seconds, minutes, or hours, depending upon the totality of the circumstances surrounding the killing." People v. Berthiaume, 229 N.W.2d 497, 500 (Mich. Ct. App. 1975). A rational trier of fact could find beyond a reasonable doubt that Petitioner had an opportunity to take a "second look" between the time he and Graham wrestled and when Petitioner shot Graham in the head. The Michigan Court of Appeals' decision is not contrary to or an unreasonable application of Supreme Court precedent.
Petitioner also challenges the sufficiency of the evidence on the alternative theory of first-degree felony murder, with a predicate crime of larceny. Under Michigan law, the elements of first-degree felony murder are: (1) the killing of a human being; (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm would be the probable result; (3) while committing, attempting to commit, or assisting in the commission of any of the felonies enumerated in Mich. Comp. Laws § 750.316. People v. Smith, 478 Mich. 292, 318-19 (2007). Larceny is one of the felonies enumerated in Mich. Comp. Laws § 750.316. The elements of larceny are: "(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or personal property of another, (5) the taking must be without the consent and against the will of the owner." Johnson, 2015 WL 5495975, at *10 (quotation marks and citation omitted). The felony-murder statute requires "that the defendant intended to commit the underlying felony at the time the homicide occurred." People v. Brannon, 486 N.W.2d 83, 86 (Mich. Ct. App. 1992). The "felony-murder doctrine will not apply if the intent to steal property of the victim was not formed until after the homicide." Id.
The Michigan Court of Appeals found sufficient evidence to sustain Petitioner's felony-murder conviction:
Johnson, 2015 WL 5495975, at *10.
Viewing all of the evidence under the doubly deferential standard that applies on federal habeas review, Petitioner has not shown that the state court's decision was unreasonable or that he is entitled to relief under Jackson. Therefore, habeas relief is also denied on this claim.
Petitioner alleges that the trial court erred in giving a duty to retreat jury instruction because the shooting occurred in his own home. He also argues that defense counsel was ineffective in failing to object.
As part of a self-defense instruction, the trial court gave the following instruction regarding duty to retreat:
(3/18/2014 Tr. at 142-42, ECF No. 10-7 at Pg. ID 836-37.)
The Michigan Court of Appeals denied relief because the instruction, "viewed in its entirety, fairly presented the defense of self-defense and sufficiently protected defendant's rights." Johnson, 2015 WL 5495975, at *12. The court found Petitioner was "not prejudiced by the trial court's initial reference to the general duty to retreat because its effect, if any, was nullified by the trial court's immediate subsequent and specific instruction that `a person is never required to retreat if attacked in his own home.'" Id. (emphasis supplied by Michigan Court of Appeals).
On federal habeas review, a petitioner is entitled to relief only if a jury instruction "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). A state court's finding that challenged jury instructions "adequately reflected the applicable state law and corresponding state charges" is binding on federal habeas review. White v. Steele, 629 Fed. App'x 690, 695 (6th Cir. 2015). In consideration of the deference owed the state court's assessment of the adequacy of these instructions, the Court holds that Petitioner fails to show that the state court's holding was contrary to or an unreasonable application of Supreme Court precedent.
The Michigan Court of Appeals also rejected Petitioner's claim that defense counsel was ineffective in failing to object to this instruction:
Johnson, 2015 WL 5495975, at *12.
An ineffective assistance of counsel claim has two components. A petitioner must show that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the AEDPA, the standard for obtaining relief under Strickland is very difficult to meet because "[t]he standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105 (internal citations and quotation marks omitted). This doubly deferential standard requires the Court to give "both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 571 U.S. 12, 15 (2013).
The Michigan Court of Appeals applied the Strickland standard in deciding Petitioner's ineffective assistance of counsel claim. As discussed, the totality of the instruction correctly and clearly set forth Michigan law on self-defense. The state court's conclusion that counsel was not ineffective for failing to object to the self-defense instruction, therefore, was not an unreasonable application of Strickland. Therefore, habeas relief is also denied on Petitioner's final claim.
"[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court's denial or dismissal of the petition. Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]" Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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, 537 U.S. at 336 (2003) (internal quotation marks and citations omitted).
Reasonable jurists would not find the Court's assessment of Petitioner's claims to be debatable or wrong. The Court therefore declines to issue a certificate of appealability.
Accordingly,
