R. ALLAN EDGAR, District Judge.
Petitioner filed this pro se § 2254 petition for writ of habeas corpus challenging the validity of his state court conviction for violations of his constitutional rights. On December 17, 2009, Petitioner was found guilty by a jury of assault with intent to rob while armed (MICH. COMP. LAWS § 750.89), assault with intent to do great bodily harm less than murder (§ 750.84), carrying a concealed weapon (§ 750.227), and possession of a firearm during the commission of a felony (§ 750.227(b)). Petitioner was sentenced to twenty-five to fifty years for the assault with intent to rob conviction, ten to fifteen years for assault with intent to do great bodily harm, twenty-four to ninety months for carrying a concealed weapon, and two years for possession of a firearm during a felony. Petitioner remains in the custody of the Michigan Department of Corrections.
After his conviction, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals raising ten claims. Petitioner's appeal was denied in June 23, 2011, and his conviction was affirmed. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied Petitioner's application on November 21, 2011. Petitioner did not appeal to the United States Supreme Court or seek collateral review before the trial court. Instead, he filed a habeas petition in this Court on November 9, 2012. Docket # 1.
Petitioner maintains that his convictions were based on violations of his state and federal rights. Petitioner sets forth the following claims for relief:
Docket # 1 at 6-7, 9-10, 11(a)-(b); Docket # 2 at 2. After filing his § 2254 claim in this Court, Respondent filed an Answer in opposition to Petitioner's request for a writ of habeas corpus (Docket # 8), to which Petitioner responded. Docket # 28. The matter is now ready for a decision.
Petitioner filed this petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone, 535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas "retrials" and ensures state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas application by a person in state custody shall not be granted in regards to any claim that has previously been adjudicated on the merits in state court unless the adjudication:
28 U.S.C. § 2254(d)(1)-(2).
This Court may only consider "clearly established holdings" of the Supreme Court, not lower federal courts, in analyzing a petitioner's claim under § 2254. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5) it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey, 271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be "unreasonable" simply because that court decides, in its own judgment, that the relevant state decision applied federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the state court's application of clearly established federal law was "objectively unreasonable"). This Court defers to state court decisions when the state court addressed the merits of petitioner's claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510, 534 (2003) (allowing review of habeas application de novo when state court clearly did not reach the question). When applying AEDPA to state factual findings, factual issues by state courts are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
After applying the standards under AEDPA to Petitioner's case, this Court concludes that Petitioner has not provided clear and convincing evidence that the state court improperly applied clearly established federal law to the facts of Petitioner's case.
Petitioner argues that this Court should grant him a new trial based on several violations of his due process rights and right to counsel. This Court reviews all of Petitioner's claims individually.
Petitioner first claims that his due process rights were violated because there was insufficient evidence to support the convictions for assault with intent to rob and do great bodily harm. Specifically, he contends that the evidence did not show that he was the shooter or that he intended to shoot the gun. Docket # 2 at 18-20.
A conviction is supported by sufficient evidence if, when "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." Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). In a habeas proceeding, however, the court cannot simply conduct a de novo review of the state court's application of that rule, but must review its sufficiency-of-the-evidence decision under the highly deferential standard of AEDPA. Petitioner can be granted habeas relief only if the Michigan Court of Appeals unreasonably applied the Jackson standard. See Getsy v. Mitchell, 495 F.3d 295, 315-16 (6th Cir. 2007) (en banc) (whether the petitioner is entitled to habeas relief ultimately depends on whether the state court's denial was based on an unreasonable application of clearly established federal law regarding the sufficiency of the evidence.). The court's task is "to determine whether it was objectively unreasonable for the state court to conclude that a rational trier of fact, after viewing the evidence in the light most favorable to the state, could have found that Petitioner committed the essential element of the crimes charged beyond a reasonable doubt. See Nash v. Eberlin, 258 Fed. App'x 761, 765 (6th Cir. 2007).
When reviewing whether the state court's determination was "objectively unreasonable," the court must engage in a two-step analysis. First, the court must ask whether the evidence itself was sufficient to convict under Jackson. The inquiry ends if it is determined that there was sufficient evidence to convict Petitioner. If the court finds that the evidence is insufficient to convict, it must then apply AEDPA deference and ask whether the state court was "objectively unreasonable" in concluding that a rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. Id. The law therefore "commands deference at two levels." Tucker, 541 F.3d at 656.
The Michigan Court of Appeals considered Petitioner's sufficiency-of-theevidence claim, and subsequently denied it without unreasonably applying the Jackson standard:
Docket # 25 at 1-2. The Michigan Court of Appeals throughly analyzed Petitioner's claim, and reasonably applied federal law to the facts of Petitioner's case. Because Petitioner has not provided new evidence or arguments to support his sufficiency-of-the-evidence claim, this Court affirms the findings of the appellate court and denies Petitioner's claim.
Petitioner claims that his constitutional right to a speedy trial was violated. Docket # 2 at 21. Petitioner asserts that he requested a speedy trial three times during the pendency of his case, and each time his requests were rejected. Docket # 2 at 23-24. The speedy trial guarantee of the Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. Four factors must be balanced to determine whether a delay is unconstitutional: length of delay, reason for the delay, criminal defendant's assertion of the right to a speedy trial, and prejudice resulting from the delay. United States v. Brown, 169 F.3d 344, 348 (6th Cir. 1999); United States v. Smith, 94 F.3d 204, 207 (6th Cir. 1996) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). One of these factors, alone, is insufficient to show a violation of the Sixth Amendment; rather, the factors must be considered together under the circumstances. See Barker, 407 U.S. at 533.
The Michigan Court of Appeals applied the abovementioned standard in reviewing Petitioner's speedy trial claim:
Docket # 25 at 3. The appellate court appropriately applied federal law to the facts of Petitioner's case. Under the first factor, Petitioner had not shown that the time between his arrest and his trial "crossed the threshold dividing ordinary from `presumptively prejudicial' delay." Dogget v. United States, 505 U.S. 647, 651-52 (1992) (noting delay is not shown if the prosecutor has acted within customary promptness). Courts have generally found delays of more than one year to be "presumptively prejudicial." Doggett, 505 U.S. 652 n. 1; see, e.g., Barker, 407 U.S. at 533 (noting over five years was an extraordinary delay) . As the Michigan Court of Appeals recorded, 313 days had passed from the time of Petitioner's arrest to his trial. Seeing as this is less than one year, Petitioner has not shown that the delay had become presumptively prejudicial.
Moreover, even if Petitioner had shown prejudice, he has not shown that the reasons for the delay were of no fault of his own. Doggett, 505 U.S. at 652; Smith, 94 F.3d at 209. Even the trial judge noted in one of Petitioner's hearings how odd it was that Petitioner kept requesting a speedy trial, but simultaneously would file motions resulting in further delays of his trial. Docket # 14 at 2 ("[H]e's crying for a speedy trial and then creates circumstances that prolong the case because of his conduct.").
Regarding the third speedy trial factor, neither party disputes that Petitioner timely filed his request for a speedy trial. Finally, Petitioner has not shown that his case suffered prejudice due to the 313 day delay. Petitioner does assert that he "was prejudiced by the delay because he suffered the anxieties and hardships of pretrial loss of liberty recognized in
Petitioner next claims that he was denied his right to due process when the trial judge denied his request for an expert in eyewitness identification. Docket # 2 at 29. "Because there is no clearly established Supreme Court law which requires the appointment of an expert in eyewitness identification, the trial court's failure to do so would not entitled petitioner to habeas relief." Spencer v. Hofbauer, No. 2:06-12133, 2008 WL 324098, at *9 (E.D. Mich. Feb. 6, 2008). The Michigan Court of Appeals considered this claim and subsequently denied it:
Docket # 25 at 3 (footnotes omitted). In addition to the reasons set forth by the Michigan Court of Appeals, this Court notes that Petitioner has not shown how his defense was prejudiced by the trial court's failure to appoint an eyewitness identification expert. Based on the record, the appellate court noted that Petitioner's "defense counsel provided a highly competent trial defense including excellent opening and closing statements and effective cross-examinations of witnesses." Docket # 25 at 6. Based on this information, Petitioner's claim that he was unable to further his defense when he was wrongly denied an expert in eyewitness identification fails.
Next, Petitioner argues that the trial court's failure to grant a continuance after Petitioner was provided a new trial attorney deprived him of his rights to due process and counsel. Respondent contends that Petitioner's claim is not exhausted. Docket # 8 at 35. On appeal, Petitioner argued that the trial court abused its discretion in denying his counsel's motion for a continuance. Docket # 25 at 42. In so arguing, Petitioner referenced only state law, and made no mention of a Sixth Amendment right to counsel or a violation of his due process rights. While Petitioner did not label his claims as federal constitutional violations, he made the same arguments then as he does now before this Court. "[T]o state a federal due process claim[,] it is not necessary to invoke `the talismanic phrase "due process of law'" or cite `book and verse on the federal constitution;' petitioner need only make `essentially the same arguments' before the state and federal courts to exhaust a claim." Duncan v. Henry, 513 U.S. 364, 370 n.1 (1995) (noting the substance of the federal claim is what must be presented to the state court to exhaust). Therefore, Petitioner exhausted this claim.
Nonetheless, Petitioner's claim fails on the merits. Regarding Petitioner's claim that the denied continuance resulted in ineffective assistance of trial counsel fails because, "the Constitution nowhere specifies any period which must intervene between the required appointment of counsel and trial[;] the fact, standing alone, that a continuance had been denied, does not constitute a denial of the constitutional right to assistance of counsel." Avery v. State of Alabama, 308 U.S. 444, 446 (1940). "Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris v. Slapp, 461 U.S. 1, 11 (1983). Broad discretion is granted to the trial courts when determining matters of a continuance, and "only an unreason[able] and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris, 461 U.S. at 11-12 (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (noting that trial judges must schedule trials so that witnesses, lawyers, and jurors are all in the same place at the same time)). Moreover, as previously mentioned, the Michigan Court of Appeals noted in its decision that Petitioner's counsel was highly competent despite the denied continuance. Docket # 25 at 6. Thus, the first part of his claim that the denial of a continuance resulted in ineffective assistance of counsel fails.
Next, Petitioner claims that his defense was prejudiced based on the denied continuance. "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar, 376 U.S. at 589. In evaluating potential prejudice resulting from the denied continuance, the Michigan Court of Appeals determined Petitioner's defense was not prejudiced when the trial court denied his request for a continuance:
Docket # 25 at 6. As the Michigan Court of Appeals noted, Petitioner's defense was not prejudiced by the trial court's failure to grant his request for a continuance. Moreover, one reason Petitioner wanted a continuance was so that his counsel could develop a defense to the prosecutor's theory that Petitioner had fled town before being arrested. Docket # 2 at 39 (noting Petitioner referenced tax forms and a customer profile as evidentiary items able to support his non-fleeing defense). However, even if Petitioner had been provided a continuance, the two documents he believes could support his non-flight defense do not demonstrate that Petitioner did not flee before being arrested. Because the appellate court has not unreasonably applied federal law to the facts of Petitioner's case, this Court also denies Petitioner's claim that his defense was prejudiced due to a denied continuance.
In Petitioner's fifth claim, he asserts that irrelevant and prejudicial testimony were improperly admitted, which denied him a fair trial and violated his due process rights. Docket # 2 at 41. Respondent asserts that Petitioner has not exhausted this claim. Docket # 8 at 40. Much like the previous claim, Petitioner raised this claim as a state law claim rather than a constitutional claim, however the substance of his argument substantiates a federal due process claim sufficient to have exhausted this claim. Duncan, 513 U.S. at 370 n.1; see Docket # 25 at 27.
Notably, however, while Petitioner attempts to make this claim a federal due process issue, it is a state law evidentiary issue, which is not cognizable on habeas review. It is not the province of a federal habeas court to re-examine state-law determinations on state-law questions. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991). The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, an inquiry whether evidence was properly admitted or improperly excluded under state law "is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68. Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.), cert. denied, 124 S.Ct. 345 (2003). "[C]ourts have defined the category of infractions that violate fundamental fairness very narrowly." Bugh, 329 F.3d at 512 (internal quotations and citations omitted). It follows then that this claim is not cognizable on habeas review.
Even if this claim were cognizable on habeas review, the Michigan Court of Appeals properly considered and denied this claim:
Docket # 25 at 4-5. The Michigan Court of Appeals determined the testimony of the three witnesses was relevant to Petitioner's case. Therefore, this Court defers to the state court's conclusion and holds that Petitioner's claim that the testimony of three witnesses prejudiced his defense in violation of his due process rights fails. See Lisenba v. People of State of California, 314 U.S. 219, 228 (1941) (noting the federal courts do not review a trial judge's decision to admit evidence).
Finally, Petitioner claims that the jury instructions pertaining to flight and aiding and abetting were unsupported by sufficient evidence, thereby violating his due process rights. Docket # 2 at 46. Typically, a claim that a trial court gave an improper jury instruction is not cognizable on habeas review. Instead, Petitioner must show that the erroneous instruction "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 155 (1977); see also Estelle, 502 U.S. at 75 (erroneous jury instructions may not serve as the basis for habeas relief unless they have "so infused the trial with unfairness as to deny due process of law"); Rashad v. Lafler, 675 F.3d 564, 569-70 (6th Cir. 2012) (same); Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000). If Petitioner fails to meet this burden, he fails to show that the jury instructions were contrary to federal law. Id.
The Michigan Court of Appeals concluded that there was sufficient evidence for the flight and aiding and abetting jury instructions when it denied Petitioner's claim on appeal:
Docket # 25 at 7. The Michigan Court of Appeals thoroughly analyzed Petitioner's claim and evaluated the evidence on record. Petitioner has not demonstrated that the two jury instructions so infused the trial with unfairness as to violate his due process rights. He merely states that there was not sufficient evidence to support the instructions. Docket # 2 at 46-53. As such, Petitioner's jury instruction claim is denied.
This Court concludes that all of Petitioner's claims are without merit. Should Petitioner choose to appeal this action, the Court must determine whether a certificate of appealability may be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484. The Court examined each of Petitioner's claims under the Slack standard and concludes that reasonable jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong. Therefore, this Court denies a certificate of appealability as to each issue raised by Petitioner.
For the same reasons the Court dismissed this action, the Court will certify that any appeal by Petitioner from the Court's decision and judgment would be frivolous and not taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any application by Petitioner for leave to proceed in forma pauperis on appeal is hereby
In summary, Petitioner's motion for post-conviction relief (Docket # 1) pursuant to 28 U.S.C. § 2254 is
