HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Petitioner, Deonta Frederick Wilson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is a former prisoner of the Michigan Department of Corrections (MDOC).
The underlying facts of petitioner's convictions are summarized as follows. In 2007, Jason Anthony was living on 76th Street in Van Buren County, Michigan, "right behind Degrandchamp's blueberry field." Trial Trans. at pp. 52-54 (docket no. 13). On the evening of March 13, 2007 ("March 13th"), Anthony noticed brake lights in the field. Id. at pp. 52-54. Anthony and his friend Lee Jackson investigated. Id. at pp. 54-56. When Anthony and Jackson arrived on the scene, it appeared that a car was stuck in the field. Id. at p. 56. Anthony recognized two of the people standing by the car, petitioner and Elmer Sullivan. Id. at pp. 57-58. While there was no "bad blood" between petitioner and Anthony, there was "bad blood" between petitioner and Jackson. Id. at p. 58. Petitioner walked up to Anthony, showed him a handgun, and ejected a round from it. Id. at pp. 59-60. After seeing the handgun, Anthony briefly spoke to Jackson stating something like "they got a gun, man" and left under the pretext of getting tow straps to pull the car out of the field. Id. at p. 60.
Anthony's friend, Ryan Story, called the police at petitioner's request. Id. at pp. 86-87. Covert Township Police Officer Allen Marler was called to assist the Michigan State Police in a complaint regarding firearms. Id. at p. 103. The police arrived about 30 minutes later. Id. at p. 62. The police were told by their dispatcher to look for four black males wearing dark clothing. Id. at p. 104. Officer Marler and his partner spotted three such individuals walking northbound on 16th Avenue. Id. at p. 105. Two of individuals, Elmer Sullivan and Jeffery Winston stopped and laid on the road when ordered, but a third individual, whom Sullivan and Winston identified as "Shorty" fled the scene. Id. at pp. 106-08.
At the time of the March 13th incident, Robert DeGrandchamp lived on 76th Street and owned the blueberry field where the incident occurred. Id. at pp. 88-89. DeGrandchamp was aware of the incident and was aware of police involvement. Id. at pp. 89-90. The next morning, a group of people came to his house claiming to look for a lost cat. Id. at pp. 95-96. Later in the morning, DeGrandchamp's son found a handgun behind their house, which was later turned over to the Sheriff's Department. Id. at pp. 90-91. That evening, three gentlemen showed up at DeGrandchamp's house claiming to look for a lost cell phone. Id. at pp. 91-92, 95-96.
That same day, Mrs. Degrandchamp turned over the handgun to Charles Loughrin, a deputy with the Van Buren County Sheriff's Department. Id. at pp. 97-100. Deputy Loughrin identified the handgun as a Remington semiautomatic .380 caliber. Id. at p. 101. The handgun was turned over to the Michigan State Police. Id. at p. 98.
About one month later, Lee Jackson was killed. Id. at pp. 63-67. Kyle Gorham, a trooper/investigator for the Michigan State Police, contacted Anthony as part of the investigation into Lee Jackson's death. Id. at pp. 117-18. During this investigation, Trooper Gorham became aware of the March 13th incident and Anthony's statement that when he and Jackson went to assist the driver of a vehicle stuck in a blueberry field near Anthony's house, he saw petitioner holding a handgun and ejecting a shell from it. Id. at pp. 83-74, 120, 123. Anthony took Trooper Gorham to the field where he saw petitioner eject a shell from the handgun, where Gorham used a metal detector to locate an unfired round of ammunition. Id. at pp. 123-25. According to Gorham, the unfired round found in the field had the same caliber and markings as the bullets found in the magazine of the Remington semiautomatic .380 handgun found by Mr. DeGranchamp's son on the morning of March 14, 2007. Id. at pp. 125-26. While Anthony assisted Trooper Gorham in recovering the unfired shell involved in the March 13th incident, Anthony testified that he did not feel that petitioner was responsible for Jackson's subsequent death. Id. at p. 67. Rather, Anthony stated that petitioner was shot by an individual named Osdemond Bell. Id. at p. 66.
Based on these facts, petitioner was charged with felon in possession of a firearm, M.C.L. § 750.224f, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. See State court Register of Actions (docket no. 7); Trial Trans. at pp. 39-40. Following a jury trial in the Van Buren County Circuit Court, petitioner was convicted of both crimes. People v. Wilson, No. 285886, slip op. at p. 1 (Mich. App. Jan. 14, 2010) (docket no. 14); Trial Trans. at pp. 52-60 (docket no. 12). Petitioner was sentenced to consecutive terms of 34 months to 10 years imprisonment for the felon in possession of a firearm conviction, and 2 years imprisonment for the felony-firearm conviction. Sent. Trans. at p. 7 (docket no. 13). Id.
Petitioner, through counsel, filed an appeal as of right to the Michigan Court of Appeals, which raised six issues:
Petitioner's brief (docket no. 14). The Michigan Court of Appeals affirmed the convictions. See Wilson, No. 285886.
Petitioner filed an application for leave to appeal to the Michigan Supreme Court raising the same six issues, which was denied. People v. Wilson, No. 140581 (Mich. June 28, 2010) (docket no. 15).
Petitioner filed a motion for relief from judgment in the trial court, which that court denied on October 8, 2010. See Summary Denial of Motion for Relief from Judgment, No. 07-15836-FH-B (Van Buren Co. Cir. Ct. Oct. 8, 2010) (docket no. 1-1 at pp. 5-6). However, petitioner did not appeal any issues raised in the motion for relief from judgment. He filed his habeas petition on October 19, 2010. See Petition (docket no. 1).
Wilson's pro se habeas petition raised the first three issues which had been addressed by the Michigan Court of Appeals on direct appeal (in his words):
Id.
Where "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 claim 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 claim will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default "provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice." Gray v. Netherland, 518 U.S. 152, 162 (1996). Not every state procedural rule will warrant application of the procedural default doctrine. Only a state procedural rule that was "`firmly established and regularly followed' by the time as of which it [was] to be applied," Ford v. Georgia, 498 U.S. 411, 424 (1991), will support application of the doctrine. "For a habeas claim to be procedurally defaulted on the basis of a state procedural rule, the petitioner must have violated a procedural rule, but the state court must also have based its decision on the procedural default." Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000).
Here, respondent contends that Issue III is procedurally defaulted and not subject to federal habeas review because "[p]etitioner failed to comply with a state procedural rule that requires defendants in criminal cases to present their claims to the trial court before raising them on appeal." Respondent's Brief at p. 19. While respondent limited the procedural default argument to Issue III, the Court notes that petitioner's claims raised in Issue I and II suffered from this same deficiency, and that the Michigan Court of Appeals found that all three of these claims were unpreserved in the trial court. See Wilson, No. 285886, slip op. at pp. 1-5. Because petitioner did not comply with the state's contemporaneous-objection rule, the Michigan Court of Appeals treated petitioner's Issues I, II and III as waived on direct appeal and reviewed them only for plain error. Id. "[A] state court's plain error analysis does not save a petitioner from procedural default. Plain error analysis is more properly viewed as a court's right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a review of the merits." Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (citations omitted). See also, Paprocki v. Foltz, 869 F.2d 281, 284-285 (6th Cir. 1989) (limited review of an issue to prevent manifest injustice does not constitute a waiver of the procedural default). Accordingly, all of petitioner's issues are procedurally defaulted for purposes of this habeas review.
Habeas review of a procedurally defaulted claim is precluded unless petitioner can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law," or that a failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. "[T]he existence of cause for a procedural default must 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 in this case claims that his counsel was ineffective for failing to object during trial. If successful, such a claim could serve as both an independent claim of error and as cause to excuse the procedural default of other issues.
Given this procedural background, the Court will address all of petitioner's habeas claims on the merits. Federal courts are not required to address a procedural default issue before deciding against the petitioner on the merits. Judicial economy may counsel addressing the merits of a procedurally defaulted claim "if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Lambrix v. Singletary, 520 U.S. 518, 525 (1997). This is such a case. See Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) ("[w]e cut to the merits here, since the cause-and-prejudice analysis adds nothing but complexity to the case"); Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (the court may proceed to decide the merits of a procedurally defaulted habeas claim where "the question of procedural default presents a complicated question of Michigan law and is unnecessary to [the] disposition of the case").
Petitioner seeks relief under 28 U.S.C. §2254, which provides that "a district judge shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Before petitioner may seek such relief in federal court, she must first fairly present the substance of her claims to all available state courts, thereby exhausting all state remedies. Picard v. Connor, 404 U.S. 270, 277-78 (1981); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); see 28 U.S.C. §2254(b)(1)(A). In the present case, petitioner has exhausted his state remedies with respect to her habeas claims.
Where the state court has adjudicated a claim on its merits, the federal district court's habeas corpus review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides in pertinent part that:
28 U.S.C. § 2254(d).
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. 776, 130 S.Ct. 1855, 1862 (2010) (internal quotation marks and 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, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The AEDPA's deferential standard "requires Petitioner to show `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 [Supreme Court precedent] beyond any possibility for fairminded disagreement.'" Blackmon v. Booker, 696 F.3d 536, 538 (6th Cir. 2012), quoting Harrington, 131 S. Ct. at 786-87. "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington, 131 S. Ct. at 786. "If this standard is difficult to meet, that is because it was meant to be." Id.
Id. at 786-87 (internal citations omitted).
Under the "contrary to" clause of § 2254(d)(1), "a federal habeas court may grant the writ only if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decided the case differently than the Supreme Court has on a set of materially indistinguishable facts." Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir. 2011), citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause of § 2254(d)(1), "a federal court may grant the writ only if the state court identified the correct governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the petitioner's case." Id. A court may not issue a writ of habeas corpus "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. Rather, to grant habeas relief, the state court's application of the law must be found to be "objectively unreasonable." Id. at 409.
A determination of a factual issue by a state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). A habeas petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence that the state court's determination was erroneous. Magana v. Hofbauer, 263 F.3d 542, 546-47 (6th Cir. 2001). The presumption of correctness accorded to a state court's findings of fact on federal habeas review also applies to the factual findings of a state appellate court based on the state trial record. Brumley v. Winegard, 269 F.3d 629 (6th Cir. 2001).
Petitioner contends that he was denied a fair trial because: the evidence related to Lee Jackson's subsequent murder was irrelevant to his criminal case; the prosecutor was allowed to talk about the murder even though it did not involve petitioner; and petitioner's counsel never objected to the prosecutorial misconduct, but rather talked about murder as well. Petition at p. 6.
The Michigan Court of Appeals addressed the admission of this evidence as follows:
Wilson, No. 285886, slip op. at pp. 2-3.
Federal habeas review 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). "[F]ederal habeas corpus relief does not lie for errors of State law." Id. at 67, quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The state courts are the ultimate expositors of state law in federal habeas proceedings. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Here, the state appellate courts found no error of state law in the admission of the evidence related to Lee Jackson's murder. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68. "Trial court errors in state procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment." McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004), citing Estelle, 502 U.S. at 69-70. A state court's ruling on evidence, standing alone, "is simply not cognizable on habeas review." Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007).
Petitioner has not shown that the trial court's admission of evidence related to Lee Jackson's murder rendered his proceedings so fundamentally unfair as to violate the Fourteenth Amendment. On the contrary, it was petitioner's counsel — as opposed to the prosecution — who made the murder relevant as a way to show that Anthony, the prosecution's only eye witness, was biased against petitioner. See Trial Trans. at pp. 81-82. Accordingly, petitioner's claim should be denied.
The Michigan Court of Appeals addressed the prosecutor's remarks regarding Lee Jackson's murder as follows:
Wilson, No. 285886, slip op. at pp. 1-3.
Petitioner contends that the prosecutor was allowed to talk about the unrelated murder of Lee Jackson and painted a picture of petitioner "as a guy who affiliates his [sic] self with murderers." Petition at p. 6. In resolving a claim of prosecutorial misconduct, the Court considers the prosecutor's remarks within the context of the entire trial to determine whether any improper remarks resulted in prejudicial error. Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008). "Prosecutors can argue the record, highlight any inconsistencies or inadequacies of the defense, and forcefully assert reasonable inferences from the evidence." Id. However, prosecutors cannot offer their opinions as to credibility of a witness or the guilt of a defendant, or discuss any purported facts not introduced into evidence. Id. Nevertheless, even if the prosecutor's conduct was improper or even universally condemned, the court can provide federal habeas corpus relief only if the statements were so flagrant and egregious as to deny the petitioner a fundamentally fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974); Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003); Hutchison v. Bell, 303 F.3d 720, 750 (6th Cir. 2002). "The relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotations omitted).
"When a petitioner makes a claim of prosecutorial misconduct, `the touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.'" Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir.1993) (quoting Smith v. Phillips, 455 U.S. 209, 219 (1982)). The court should consider four factors in determining whether a prosecutor's improper remarks are so flagrant as to rise to the level of a due process violation: (1) the likelihood that the prosecutor's remarks tended to mislead the jury or to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the remarks were accidentally or deliberately placed before the jury; and (4) the total strength of the evidence against the accused. Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005).
In his opening statement, the prosecutor briefly referred to the investigation into the death of Lee Jackson in an apparent attempt to explain how Anthony initially came into contact with Trooper Gorham and later assisted Gorham in locating the shell in the blueberry field. Trial Trans. at pp. 48-49. While the prosecutor stated that Lee Jackson's death involved some of the individuals present in the blueberry field on March 13th, he noted that petitioner "was not present" and not directly involved in Jackson's death. Id. at p. 48. Under these circumstances, the prosecutor's statements were not improper.
Furthermore, it appears that the prosecutor's statements were in anticipation of defense counsel's theory of the case, i.e., that Anthony was not a credible witness. In defense counsel's opening statement, he pointed out to the jury that Anthony was the only witness to see petitioner with the weapon and stated "the evidence will show that that witness [Anthony] is bias [sic]." Trial Trans. at p. 50. As evidence of the bias, defense counsel stated "that Mr. Anthony has reason to believe that my client had something to do with [Jackson's murder]" explaining that "[s]omeone is dead, his friend is dead, and he wants somebody to blame so he's pointing at my guy [petitioner] and saying my guy had a gun that night." Id. at pp. 50-51.
In his state appellate brief, petitioner raised another claim of prosecutorial misconduct which arose during closing argument:
Petitioner's Brief at p. 6 (docket no. 14).
Petitioner appears to be referring to the prosecutor's closing argument, which provided in pertinent part:
Trial Trans. at pp. 147-48.
Given defense counsel's statements that Anthony was a biased witness who blamed petitioner for Lee Jackson's death, the prosecutor could properly address evidence related to Lee Jackson's murder to rebut defense counsel's attempt to discredit Anthony's testimony. See generally, United States v. Reynolds, 534 Fed. Appx. 347, 368-69 (6th Cir. 2013) ("when examining whether a prosecutor's remarks are improper, the court should consider the remarks `with particular attention to whether they may have been invited by defense counsel's conduct'") (quoting United States v. Gonzalez, 512 F.3d 285, 292 (6th Cir. 2008). See also, United States v. Young, 470 U.S. 1, 12-13 (1985) ("if the prosecutor's remarks were `invited,' and did no more than respond substantially in order to `right the scale,' such comments would not warrant reversing a conviction")
In addition, contrary to petitioner's claim, the prosecutor did not ask the jury to speculate with respect to whether petitioner committed the charged crimes of being a felon in possession of a firearm and possession of a firearm during the commission of a felony. Rather, the only cause for speculation was why the car pulled into a blueberry field adjacent to Anthony's house. The Court views this comment as an attempt by the prosecutor to both address petitioner's claim that Anthony was biased and to admit that the government presented no evidence as to why petitioner was stuck in a blueberry field that night with Sullivan and Winston. Under these circumstances, the Court does not consider this statement improper.
The Michigan Court of Appeals' decision was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court; nor was the decision based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d). Accordingly, petitioner is not entitled to relief on this claim.
Petitioner contends that his counsel was ineffective for failing to object to the admission of the murder evidence and the prosecutor's statements regarding that evidence. The Michigan Court of Appeals addressed plaintiff's ineffective assistance of counsel claim as follows:
Wilson, No. 285886, slip op. at pp. 3-4.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a twoprong test to determine whether counsel's assistance was so defective as to require reversal of a conviction: (1) the defendant must show that counsel's performance was deficient and (2) the defendant must show that counsel's deficient performance prejudiced the defense, i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. In making this determination, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. "[T]he threshold issue is not whether [petitioner's] attorney was inadequate; rather, it is whether he was so manifestly ineffective that defeat was snatched from the hands of probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (emphasis in original), cert. denied 508 U.S. 975 (1993). Under Strickland, the reviewing court's scrutiny of counsel's performance is highly deferential, and the court is to presume that counsel rendered adequate assistance and made decisions with reasonable professional judgment. Strickland, 466 U.S. at 689-690.
As the Michigan Court of Appeals explained, petitioner's trial strategy was to discredit Anthony's testimony and show that he was biased against petitioner. It is a wellestablished principle "matters of trial strategy are left to counsel's discretion." Dixon v. Houk, 737 F.3d 1003, 1012 (6th Cir. 2013). "Thus, where a defendant focuses on counsel's `strategic choices made after thorough investigation of law and facts,' the Supreme Court guides us that such choices `are virtually unchallengeable.'" Id., quoting Strickland, 466 U.S. at 690. Under the circumstances of this case, defense counsel's trial strategy was reasonable. While petitioner now disagrees with that strategy, he has not shown that it was deficient. The government's case against petitioner was based largely upon Anthony's testimony because he was the only eye witness to the March 13, 2007 event who testified at trial. Under the circumstances of this case, defense counsel's strategy of discrediting the prosecution's sole eyewitness was reasonable.
Furthermore, petitioner was not prejudiced by his counsel's actions in not objecting to the evidence surrounding Jackson's murder. As discussed, supra, both the prosecution and the defense presented evidence of the murder. Given that petitioner's prosecution arose out of Jackson's murder investigation, it was reasonable (if not necessary) for that the prosecutor to refer to the murder.
Under these circumstances, petitioner's trial counsel was not ineffective for failing to object to the prosecutor's references to the murder. These would have been meritless objections given that defense counsel's trial strategy was to use Jackson's murder as a way to discredit the prosecution's only eye witness. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) ("[o]mitting meritless arguments is neither professionally unreasonable nor prejudicial"); United States v. Sanders, 165 F.3d 248, 253 (3rd Cir. 1999) ("[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument"); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) ("[c]ounsel was not required to raise meritless arguments to avoid a charge of ineffective assistance of counsel"); Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) ("[t]he Sixth Amendment does not require counsel . . . to press meritless issues before a court"). Petitioner cannot claim that his trial counsel was ineffective with respect to the admission of evidence regarding Lee Jackson's murder.
The Michigan Court of Appeals' decision was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court; nor was the decision based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d). Accordingly, petitioner is not entitled to relief on this claim.
Petitioner contends that he was denied a fair trial by the introduction of a handgun which was unconnected to him or the charged offense and that his counsel was ineffective for failing to object to the admission of this evidence. The Michigan Court of Appeals addressed these issues as follows:
Wilson, No. 258886, slip op. at pp. 4-5.
While petitioner claims that the admission of the handgun into evidence amounted to a due process violation, this claim is nothing more than an evidentiary issue under state law. Federal habeas review is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States and does not lie for errors of State law. Estelle, 502 U.S. at 67-68. The Michigan Court of Appeals found that the handgun was properly admitted into evidence. Petitioner's disagreement with the state trial court's evidentiary ruling is not cognizable on federal habeas review. Id. See Sanborn v. Parker, 289 F.Supp.2d 818, 822-23 (W.D. Ky. 2003) ("a mere statement that `due process' rights have been violated does not necessarily give rise to a specific federal constitutional claim [as] `[d]ue process,' like `fair trial,' can be a catchphrase used by habeas petitioners as part of an allegation about any type of trial court error, including errors in rulings based on state law." ) (quoting Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). Accordingly, petitioner's claim regarding the trial court's admission of the handgun is not cognizable on federal habeas review.
Petitioner contends that his defense counsel was ineffective for failing to object to the admission of the handgun at trial. Contrary to petitioner's contention, the Michigan Court of Appeals found that defense counsel was not ineffective stating that:
Wilson, No. 285886, slip op. at p. 5.
The Michigan Court of Appeals determined that the handgun was properly admitted under Michigan law. As such, a motion to oppose admission of the evidence by defense counsel would be meritless. Counsel cannot be ineffective for failing to raise a meritless or futile objection. See Coley, 706 F.3d at 752; Sanders, 165 F.3d at 253; Ludwig, 162 F.3d at 459; Lilly, 988 F.2d at 786. Furthermore, the record reflects that petitioner's counsel cross-examined both Robert Degrandchamp and Deputy Loughrin regarding the discovery, identification and chain of custody with respect to the handgun. Trial trans. at pp. 93-96, 99-102.
The Michigan Court of Appeals' decision was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court; nor was the decision based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d). Petitioner is not entitled to relief on this claim.
Petitioner contends that he was denied the right to a fair trial because the prosecutor was allowed to use statements from witnesses that defense counsel was never able to cross-examine. The Michigan Court of Appeals addressed this claim as follows:
Wilson, No. 285886, slip op. at p. 5.
Assuming that the Michigan Court of Appeals properly found a violation of the Confrontation Clause, the Court agrees with that court that such an error was harmless. In habeas actions brought pursuant to § 2254, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Fry v Pliler, 551 U.S. 112, 121-22 (2007). The Brecht standard provides that "an error is harmless unless it had substantial and injurious effect or influence in determining the jury's verdict." Id. at 116 (internal quotation marks omitted). Here, the only evidence presented by Sullivan and Winston was a statement to Officer Marler that the man who fled the police was named "Shorty." This evidence was cumulative of the testimony given by Anthony, an eye witness who knew petitioner and unequivocally identified petitioner as the person with the handgun during the March 13th incident. Trial Trans. at pp. 56-60. Although it was dark at the time of the incident, the car stuck in the blueberry field had its lights on. Id. at pp. 61-62. In addition, Anthony testified that he was so close to the individuals that he could see everyone and that he knew petitioner well enough to testify that petitioner's nickname was "Shorty." Id. at pp. 62, 66-67. Defense counsel could not get Anthony to waiver on his identification of petitioner during cross-examination. For example, while Anthony testified that he did not hang out with petitioner, he knew petitioner by face and by name. Id. at pp. 71-72. Based on this record, the trial court's admission of Officer Marler's testimony regarding statements made to him by Sullivan and Winston was harmless error, because it did not have "substantial and injurious effect or influence in determining the jury's verdict." Fry, at 116 (internal quotation marks omitted).
The Michigan Court of Appeals' decision was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court; nor was the decision based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d). Accordingly, petitioner is not entitled to relief on this claim.
I respectfully recommend that petitioner's habeas petition be
