RAY KENT, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Robert Lee Curry is incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee County, Michigan. Following a jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of three counts of armed robbery; one count of assault with intent to rob while armed; one count of felon in possession of a firearm (FIP); one count of carrying a concealed weapon (CCW); and four counts of felony firearm. On February 3, 2014, the court sentenced Petitioner as a fourth habitual offender to concurrent prison terms of 35 to 60 years on the armed robbery and assault convictions, and 5 to 10 years on the FIP and CCW convictions. All of those sentences were to be served consecutively to 2-year term of imprisonment for the felony firearm convictions. Petitioner's sentences for the convictions in the Kalamazoo County prosecution were to be served consecutively to a sentence of 1 year, 6 months to 4 years imposed by the Allegan County Circuit Court on May 6, 2011. Petitioner was on parole for the Allegan County offense when he committed the crimes in Kalamazoo County.
On January 12, 2017, Petitioner timely filed his habeas corpus petition raising seven grounds for relief, as follows:
(Pet., ECF No. 1-1, PageID.41, 70-80.) Respondent has filed an answer to the petition (ECF No. 10) stating that the grounds should be denied because they are procedurally defaulted and/or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.
On March 8, 2013, Petitioner, while armed, robbed Christopher Tucker, Cody Tucker, and Scott Smith. At the same time, he assaulted Jordan Wallace with an intent to rob her. Petitioner's conduct in committing those offenses also violated Michigan statutes prohibiting the carrying of a concealed weapon, the possession of a weapon by a felon, and the possession of a firearm in connection with the commission of a felony. Although there were some differences between the accounts of the event offered by the victims and the account offered by Petitioner, Petitioner did not deny committing the offenses. He claimed he committed the offenses under duress. Armed associates had threatened Petitioner's wife and children if he did not commit the offenses. Indeed, according to Petitioner and his wife, one gunman sat with Petitioner's wife and children at the home where they were residing while Petitioner committed the crimes.
After listening to several days of testimony, the jury was not convinced that Petitioner acted under duress. The jurors deliberated for about an hour before returning their verdict of guilty on all counts.
Petitioner, with the assistance of counsel, directly appealed his convictions. Petitioner and his counsel sought a remand to the trial court to permit factual development of an ineffective assistance claim regarding trial counsel's failure to call witnesses to support Petitioner's duress defense. (Pet'r's Mot. to Remand, ECF No. 11-9, PageID.1538-1542.) The court of appeals denied Petitioner's motion by order entered September 5, 2014. (Mich. Ct. App. Order, ECF No. 11-9, PageID.1552.)
Petitioner, through his counsel, submitted an appeal brief raising two issues, the issues identified as habeas issues I and II above. (Pet'r's Br., ECF No. 11-9, PageID.1555-1582.) In a pro per brief, Petitioner raised the issues identified as habeas issues III-IX above. (Pet'r's Standard 4 Br., ECF No. 11-9, PageID.1600-1617.) By unpublished opinion issued June 11, 2015, the Michigan Court of Appeals considered each of Petitioner's issues and affirmed the trial court. (Mich. Ct. App. Op., ECF No. 11-9, PageID.1514-1521.)
Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he had raised in the court of appeals. (Pet'r's Appl. for Leave to Appeal, ECF No. 11-10, PageID.1619-1693.) By order entered February 6, 2016, the supreme court denied leave to appeal because it was unpersuaded that the questions presented should be reviewed. (Mich. Order, ECF No. 11-10, PageID.1618.) This timely petition followed.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to `show that 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 law beyond any possibility for fairminded disagreement.'" Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
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, 502 U.S. 62 (1991), 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." Id. 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. 2003). This approach accords the state courts wide latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir. 2000).
Further, under the AEDPA, the court may not grant relief if it would have decided the evidentiary question differently. The court may only grant relief if Petitioner is able to show that the state court's evidentiary ruling was in conflict with a decision reached by the Supreme Court on a question of law or if the state court decided the evidentiary issue differently than the Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000). Petitioner has not met this difficult standard.
When Petitioner lured his victims in with a Craigslist ad, he called himself "Mark." (Trial Tr. I, ECF No. 11-3, PageID.494; Trial Tr. II, ECF No. 11-4, PageID.572.) Yet, when Christopher Tucker spoke with the 911 operator, he told the operator he did not know the name of the person who robbed him. (Trial Tr. II, ECF No. 11-4, PageID.572-573.) Mr. Tucker indicated he had simply forgotten that detail when he spoke with the dispatcher. (Id.) On redirect, the prosecutor asked whether Mr. Tucker even believed "Mark" to be Petitioner's name. (Id., PageID.597.) Mr. Tucker indicated that he did not because, when the victims returned to the apartment complex with the police, a complex resident had told him . . .; at that point, defense counsel objected to the expected response as hearsay. (Id., PageID.597-598.) The prosecutor argued that the resident's statement was not offered for the truth of the matter asserted, but to explain why Mr. Tucker may have not provided the name "Mark" to the dispatcher. (Id.) The Court allowed the testimony, concluding that the testimony was not being offered for the truth of the matter asserted, but to explain why Mr. Tucker had not identified the robber as "Mark." (Id., PageID598.) The Court so instructed the jury. (Id.)
When Mr. Tucker responded, he said the complex resident told him "His name's Rob. . . . He robbed me, you know, three years ago[.]" (Id., PageID.599.) Petitioners' counsel then approached the bench to request a mistrial because the statement that Petitioner robbed another three years before was highly prejudicial to Petitioner. (Id., PageID.600.) The trial court denied that request, choosing instead to provide a limiting instruction. The court instructed the jury "you're not to consider [the statement] for any potential truth of the statement being made regarding anything that happened or who the person was. So I do instruct you you should not consider it for any purpose other than trying to understand this witness's state of mind as he was doing and describing things to others." (Id., PageID.601.)
Petitioner contends the evidence should not have been admitted for two reasons: first, the testimony is inadmissible hearsay under the Michigan Rule of Evidence 802; and second, because the testimony introduces a prior bad act by Petitioner in violation of Michigan Rule of Evidence 404. The trial court concluded that the testimony was not hearsay under the Michigan Rules of Evidence because it was not offered for the truth of the matter asserted. The trial court never considered the admissibility of the testimony under Rule 404, because the prosecutor never presented it for admission under that rule. Instead, the court considered the prejudicial effect of the testimony in the context of the motion for mistrial and concluded that any prejudice could be ameliorated with an instruction. The Michigan Court of Appeals rejected the entirety of Petitioner's challenge, the hearsay aspect and the "prior bad act" aspect, by affirming the trial court's determination that any prejudice was addressed by the court's curative instruction.
It is the appellate court's determination that Petitioner did not suffer prejudice— that any error was harmless—to which this Court must defer on habeas review. "State courts' harmless-error determinations are adjudications on the merits, and therefore federal courts may grant habeas relief only where those determinations are objectively unreasonable. O'Neal v. Balcarcel, 933 F.3d 618, 624 (6th Cir. 2019) (citing Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015)). In Petitioner's case, the court of appeals concluded Petitioner did not suffer prejudice "[b]ecause the jury was instructed that it could not consider the residents' statements that Christopher heard for their truth, and because a jury is presumed to follow its instructions . . . ." (Mich. Ct. App. Op., ECF No. 11-9, PageID.1515-1516.)
It is clearly established federal law that "[a] jury is presumed to follow its instructions." See, e.g., Weeks v. Angelone, 528 U.S. 225, 234 (2000). Therefore, the Michigan Court of Appeals conclusion that the same presumption under state law forecloses a finding of prejudice is not objectively unreasonable. Certainly, Petitioner has failed to show that the Michigan Court of Appeals' rejection of his claim is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner's claim of duress depended on the corroborating testimony of his wife. The prosecutor attempted to cast doubt upon the corroborating effect of Petitioner's wife's testimony by referring to a phone conversation between Petitioner and his wife during Petitioner's pretrial detention:
(Trial Tr. IV, ECF No. 11-6, PageID.1264-1266.) That exchange, apparently, prompted this question from a juror and Petitioner's response:
(Trial Tr. V, ECF No. 11-7, PageID.1284.) Then, the prosecutor offered rebuttal testimony from Detective Karen Rivard:
(Trial Tr. V, ECF No. 11-7, PageID.1338-1339.) Petitioner contends that Rivard's testimony regarding "obvious coaching" was impermissible opinion testimony regarding the credibility of another witness.
Michigan law holds that a witness may not provide an opinion on the credibility of another witness:
People v. Musser, 835 N.W.2d 319, 327 (Mich. 2013) (footnote omitted). The Michigan Court of Appeals concluded that Detective Rivard's testimony did not run afoul of that rule:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1516.) The state court's factual finding regarding the exchange—that Rivard was not asked to comment on the credibility of another witness—is not unreasonable. That factual finding takes the testimony outside the limits of the rule.
The court of appeals concluded that even though it was not opinion testimony regarding witness credibility, it was still opinion testimony. Therefore, the court went on to consider whether the testimony was admissible lay opinion under Michigan Rule of Evidence 701:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1516.)
The state appellate court's determination that the testimony elicited here was permissible lay opinion testimony under Michigan Rule of Evidence 701 binds this Court. The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 67-68; Pulley v. Harris, 465 U.S. 37, 41 (1984). The decision of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The Sixth Circuit recognizes "`that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'" Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76). See also Thomas v. Stephenson, 898 F.3d 693,700 n.1 (6th Cir. 2018) (same).
Petitioner is only entitled to habeas relief on this claim if the state court decided the evidentiary issue differently than the Supreme Court did on a set of materially indistinguishable facts. Sanders, 221 F.3d at 860. Interpreting the Federal Rules of Evidence, the Supreme Court in United States v. Johnson, 319 U.S. 503 (1943), considered the admissibility of expert testimony that was challenged because it "invaded the jury's province." Id. at 519. The court was not troubled by the fact that the expert testified regarding ultimate issues:
Johnson, 319 U.S. at 519-20. Federal Rule of Evidence expressly states that "[a]n opinion is not objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704(a). Federal Rule of Evidence 704 was passed for the express purpose of abolishing case law that opining witnesses could not express opinions on ultimate issues. Advisory Committee Notes, Fed. R. Evid. 704. In United States v. Scheffer, 523 U.S. 303 (1998), in a concurring opinion, Justice Kennedy quoted the Advisory Committee Notes to explain the change:
Scheffer, 523 U.S. at 319.
Even if the prohibition of opinion testimony on ultimate issues has softened, that does not leave the permissible scope of opinion testimony without bound. Federal Rule of Evidence 702—and the parallel Michigan rule—require that the expert opinion testimony help or assist "the trier of fact to understand the evidence or to determine a fact in issue . . . ." Fed. R. Evid. 702; Mich. R. Evid. 702. Expert opinions that "merely tell the jury what result to reach" would, arguably, be inadmissible under Rule 702. Advisory Committee Notes, Fed. R. Evid. 704. Federal Rule of Evidence 701—like Michigan Rule of Evidence 701—also requires that lay opinion testimony be "helpful to clearly understanding the witness's testimony or to determining a fact in issue . . . ." Fed. R. Evid. 701.
This authority suggests that the Supreme Court has not held evidence such as the lay opinion testimony that Petitioner challenges here to be inadmissible. Moreover, it is noteworthy that the federal authorities cited above considered the issue as a matter of federal
Petitioner also complains that the trial court improperly excluded two categories of evidence: testimony from Officer Jason Gates and testimony from Petitioner's treating health professional Tara Adams. Petitioner contends the excluded testimony would have supported his duress defense. Officer Jason Gates testified first as part of the prosecution's case. Petitioner's significant other, Ashley Jones, had reported that she had been threatened by a man, a threat that related to Petitioner. Officer Gates investigated that threat. In the process, he spoke with Petitioner and Ms. Jones. On cross-examination, Petitioner's counsel attempted to explore with Officer Gates what Petitioner and Ms. Jones had told him. The prosecutor objected on grounds of hearsay. The trial court excluded the testimony.
After Ms. Jones and then Petitioner testified regarding their interviews with Officer Gates, the prosecutor called Officer Gates in rebuttal. At that time, both counsels elicited testimony regarding the interviews without objection. Thus, the testimony that was not admitted during the prosecutor's initial proofs was admitted later in the trial.
Additionally, Petitioner wanted to elicit testimony from Tara Adams, his treating mental health professional at the time of the crime. After hearing an offer of proof outside the presence of the jury, the court concluded that Ms. Adams could testify regarding a session on March 6, two days before the robbery, regarding Petitioner's reports of his present sense impressions at that time. Ms. Adams testified that Petitioner was fearful and worried he would not live long. The court ruled that testimony regarding counseling sessions that were more remote in time from the crime were not relevant as present sense impressions and did not fit any other hearsay exception.
Petitioner contends the trial court's rulings regarding the inadmissibility of this testimony was in error. For the reasons set forth above, however, the state court's determinations under state law regarding the inadmissibility of this evidence bind this Court. Nonetheless, Petitioner's claim does have a constitutional dimension. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation marks omitted). The Sixth Circuit has explained:
Gagne v. Booker, 596 F.3d 335, 340-41 (6th Cir. 2010). A proper inquiry into the constitutionality of a trial court's decision to exclude evidence begins with considering the relevancy and cumulative nature of the excluded evidence, and the extent to which it was "central" or "indispensable" to the defense. Id. at 341. Against this, courts must balance the state's interests in enforcing the evidentiary rule on which the exclusion was based. Id.
The Court excluded much of Ms. Adam's anticipated testimony, but the exclusion did not interfere with Petitioner's right to present his duress defense. Petitioner testified regarding his fear at various times before, during, and after the crime as well as his communication of that fear to Ms. Adams. Although the Court excluded Officer Gates's testimony regarding Ms. Jones and Petitioner's statements during the interviews, both of the interviewees testified. Moreover, with that foundation laid, when Officer Gates was called for rebuttal, the questioning regarding the interviews was not restricted. In neither circumstance was Petitioner denied the opportunity to present his defense. Accordingly, Petitioner has failed to show that the state courts' determinations excluding the evidence was contrary to, or an unreasonable application of clearly established federal law.
Plaintiff argues that he was denied his rights under the Confrontation Clause because victim Scott Smith did not testify at trial. Petitioner was, nonetheless, convicted of robbing Mr. Smith on the strength of the testimony of the Tuckers and Ms. Wallace. The Michigan Court of Appeals flatly rejected Petitioner's Confrontation Clause argument:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1519.) The state court's determination is entirely consistent with clearly established federal law.
The Confrontation Clause of the Sixth Amendment gives the accused the right "to be confronted with the witnesses against him." U.S. Const., Am. VI; Pointer v. Texas, 380 U.S. 400, 403-05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause therefore prohibits the admission of an out-of-court testimonial statement at a criminal trial unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004).
The Confrontation Clause is not implicated with respect to Scott Smith, because he never "testified" at trial, either directly or through the introduction of testimonial out-of-court statements, Crawford, 541 U.S. at 68-69. The clause applies only to witnesses—those who provide testimony. A criminal defendant has no right to confront a person who provides no evidence at trial. See Cooper v. California, 386 U.S. 58, 62 n.2 (1967) ("Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront the witnesses against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit."); see also McCray v. Illinois, 386 U.S. 300, 313-314 (1967) (same); United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992) ("The Sixth Amendment guarantees to a defendant the right to confront witnesses against him . . . [it] does not, however, require the government to call every witness competent to testify . . . ."); United States v. Porter, 764 F.2d 1, 9 (1st Cir. 1985) ("The confrontation clause does not come into play where a potential witness neither testifies nor provides evidence at trial."); United States v. Morgan, 757 F.2d 1074, 1076 (10th Cir. 1985) ("[T]he Confrontation Clause is not a guarantee that the prosecution will call all the witnesses it has against the defendant.").
Petitioner has failed to show that the state court's rejection of his Confrontation Clause claim is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, he is not entitled to habeas relief on this claim.
Petitioner identifies flaws in the photo lineup from which Christopher Tucker identified Petitioner as the armed robber and, for that reason, contends the lineup should not have been introduced into evidence. Due process provides a "check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." Perry v. New Hampshire, 565 U.S. 228, 232 (2012). The principle of due process "prohibits the use of identifications which under the totality of the circumstances are impermissibly suggestive and present an unacceptable risk of irreparable misidentification." United States v. Peterson, 411 F. App'x 857, 864 (6th Cir. 2011) (citing Carter v. Bell, 218 F.3d 581 (6th Cir. 2000)). In determining whether an unacceptable risk of misidentification with regard to a photo lineup exists, courts employ a twostep analysis. Haliym v. Mitchell, 492 F.3d 680, 704 (6th Cir. 2007) (quoting Stovall v. Denno, 388 U.S. 293, 301-02 (1967), and citing Neil v. Biggers, 409 U.S. 188, 197 (1972)). The first step requires a determination as to whether the identification was "unnecessarily suggestive." Id. To make this determination, "the court may consider `the size of the [photographic] array, the manner of its presentation by the officers, and the details of the photographs themselves.'" United States v. McComb, 249 F. App'x 429, 437 (6th Cir. 2007) (citing United States v. Sanchez, 24 F.3d 1259 (10th Cir. 1994)); see also United States v. Wade, 388 U.S. 218 (1967). The second step of the inquiry requires consideration of a number of factors, including
McComb, 249 F. App'x at 437 (citing United States v. Beverly, 369 F.3d 516 (6th Cir. 2004)); see also Haliym, 492 F.3d at 704 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977), and Biggers, 409 U.S. at 199-200. If "the first step of the requisite analysis ends in the government's favor, [the court] need not address" the second step of the inquiry. United States v. Stamper, 91 F. App'x 445, 462 (6th Cir. 2004).
Petitioner makes no serious attempt to argue that the six-photo photographic lineup was unduly suggestive. He suggests that the officer who presented the lineup to Mr. Tucker pointed to Petitioner and asked if Petitioner was the robber. There is no record support for Petitioner's suggestion. Petitioner also claims that the other persons in the photo lineup were obviously different by size, hairstyle, or age. Petitioner's counsel explored those differences during cross-examination of Detective Rivard.
The Michigan Court of Appeals did not explore Petitioner's challenge to the array in detail because the court concluded any possible error did not affect the outcome:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1520.) The determination that there is no plain error because any error did not affect the outcome is the equivalent of a determination that the error was harmless.
As explained above, this Court must defer to the appellate court's determination that any error was harmless. "State courts' harmless-error determinations are adjudications on the merits, and therefore federal courts may grant habeas relief only where those determinations are objectively unreasonable. O'Neal, 933 F.3d at 624. The appellate court concluded that any flaw in the victim's identification of Petitioner as the perpetrator is harmless because Petitioner identified himself as the perpetrator as well. That conclusion is eminently reasonable. Petitioner, therefore, has failed to show that the state appellate court's determination that any error was harmless is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, he is not entitled to habeas relief on this claim.
Petitioner claims that his statements to Officer Gates should have been suppressed because Gates violated Miranda v. Arizona, 384 U.S. 436 (1966) when he interviewed Petitioner at the county jail. The Michigan Court of Appeals rejected the claim:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1520) (footnote omitted).
The court of appeals expressly relied upon clearly established law when resolving Petitioner's Miranda challenge. Petitioner fails to explain how the appellate court's determinations were contrary to, or an unreasonable application of, clearly established federal law. Petitioner instead starts from the position that the interview was custodial. The record does not bear out that proposition.
Officer Gates testified that he was investigating a threat made against Petitioner's wife. He went to the jail to interview Petitioner as a witness with respect to that matter, neither knowing nor suspecting that there was any relationship between the threat and the armed robbery. When Petitioner volunteered that the debt that prompted the threat had also prompted the robberies, Gates simply stopped questioning him. (Trial Tr. V, ECF No. 11-7, PageID.1324-1326.)
Even if circumstances warranted suppression of the interview, Petitioner had no reason to seek that relief. The facts that are brought to light by this interview are the heart and soul of Petitioner's duress claim. Because Petitioner owed others money, the others threatened his family to force Petitioner to commit the armed robbery. Indeed, that is why Petitioner, in his internally inconsistent pro per Standard 4 appellate brief argues on the one hand that Gates's testimony regarding the interview should be suppressed because it violates Petitioner's Miranda rights, yet argues on the other hand that Petitioner's counsel should have been permitted to explore with Gates the circumstances that put Petitioner under duress that Gates learned about from the interview.
Petitioner has failed to show that the Michigan Court of Appeals' determination regarding the Miranda issue is contrary to, or an unreasonable application of, clearly established federal law. Thus, he is not entitled to habeas relief. Moreover, Petitioner's attempt to suppress Officer Gates report of the interview runs directly counter to Petitioner's entire trial strategy.
Petitioner next raises a very terse challenge to his jury venire:
(Pet'r's Std. 4 Br., ECF No. 11-9, PageID.1604.) Petitioner touches upon a legitimate Sixth Amendment issue. In Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court held that "the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community . . . ." Id. at 537. In order to establish a prima facie violation of the fair-cross-section requirement, a defendant must demonstrate three elements: (1) that the group alleged to be excluded is a "distinctive group" in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979). When potential jurors are systematically excluded from the jury pool on the basis of race, structural error occurs. Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986).
The Michigan Court of Appeals rejected Petitioner's claim:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1521.) Although the appellate court relied on state authority, that authority, in turn, relied upon Duren. See People v. Howard, 575 N.W.2d 16, 21 (Mich. Ct. App. 1997); People v. Williams, 616 N.W.2d 710, 714 (Mich. Ct. App. 2000).
Petitioner's two-sentence presentation of this issue touches upon the first Duren element; however, he has failed to address either the second or third elements. Therefore, he has certainly failed to demonstrate that the Michigan Court of Appeals' analysis—which is founded upon the second and third Duren elements—is contrary to, or an unreasonable application of Duren, the clearly established federal law on this issue. Accordingly, Petitioner is not entitled to habeas relief on this claim.
Finally, Petitioner contends that his present confinement is unconstitutional because his counsel rendered ineffective assistance. Specifically, Petitioner complains that his counsel failed to follow the procedural steps necessary to qualify his treating counselor as an expert witness under Federal Rule of Civil Procedure 26; failed to move to suppress Officer Gates testimony; failed to subpoena or otherwise obtain testimony from multiple witnesses to corroborate Petitioner's duress defense; failed to get audio of Petitioner's 911 call in the days preceding the armed robbery; and failed to get Mr. Curry's phone records so Petitioner's text messages could corroborate his duress defense.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. The petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. Id. at 687. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 13 (2013); Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .") (citing Harrington, 562 U.S. at 102).
The Michigan Court of Appeals gave short shrift to Petitioner's claim that his attorney had failed to comply with the Federal Rules of Civil Procedure regarding expert qualification:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1518.) The appellate court's determination of the claim is, of course, correct. But, even if Petitioner raised the claim under the parallel Michigan procedural rule, it would fare no better because Ms. Adams' expert opinion was not required.
The judge restricted Ms. Adams' testimony; but, he did not restrict Ms. Adams' testimony because counsel had failed to qualify Ms. Adams as an expert. Counsel did not offer the testimony of Ms. Adams to obtain any expert opinion. (Trial Tr. IV, ECF No. 11-6, PageID.1042-1043.) She simply wanted Ms. Adams to corroborate Petitioner's statements to her regarding his thoughts and feelings of fear—the same fear that compelled him, according to his duress defense, to commit the crimes. (Id.) The trial judge restricted Ms. Adams' testimony because it was intended to elicit what Petitioner told Ms. Adams; thus, it was hearsay. (Id., PageID.1044.) The court concluded that it might be admissible as a statement of Petitioner's then existing mental, emotional, or physical condition, under Mich. Rule Evid. 803(3), but that such statements would only be relevant if they were close in time to March 8 when he committed the armed robberies. (Id., PageID.1044-1046.) Petitioner's counsel was permitted to explore with Ms. Adams what she observed or learned from Petitioner during the relevant counseling session, to corroborate Petitioner's testimony regarding his fear. Ms. Adams' "expert" opinion was simply irrelevant to Petitioner's duress defense and Petitioner does not offer any explanation of what Ms. Adams might have opined about to advance Petitioner's defense. In short, Petitioner has failed to demonstrate how counsel's failure to qualify Ms. Adams as an expert is professionally unreasonable under the circumstances and has similarly failed to demonstrate how that failure prejudiced him. Accordingly, Petitioner is not entitled to habeas relief on his "expert qualification" ineffective assistance claim.
Petitioner claims counsel should have moved to suppress Officer Gates' testimony. Petitioner never explains why counsel should have moved to suppress the testimony. For that reason alone, the court of appeals rejected the claim. (Mich. Ct. App. Op., ECF No. 11-9, PageID.1517.) Presumably, however, Petitioner contends the testimony should have been suppressed because Petitioner believes his interview with Officer Gates violated Petitioner's rights under Miranda. For the reasons set forth above, however, Petitioner's Miranda claim has no merit. Thus, if counsel had moved to suppress the testimony, the motion would have been denied because it would have lacked merit. "Omitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner complains that his counsel failed to subpoena "Ms. Jones" from Grand Rapids, and Heather Sadler. Petitioner contends his counsel properly subpoenaed witness Shamirra Jordan, but then failed to compel her to testify before she moved out of state. Petitioner also claims that his counsel failed to contact the manager for Petitioner's apartment complex who could have corroborated that Petitioner left a trailer with all his belonging at the complex for almost two months after he moved out without notice because of threats to his family.
With regard to prospective witnesses Sadler and Jordan, the Michigan Court of Appeals noted that the record supported a finding that Petitioner's counsel had issued and served subpoenas on them. Although the record is not as clear with respect to witness Erin Jones, Petitioner has not shown that his counsel failed to serve her with a subpoena. Immediately before trial, Petitioner's counsel noted that she had difficulty serving Sadler and Jones; however, as the time for Petitioner to put on his case drew near, Petitioner's counsel noted that she had four witnesses under subpoena and there is nothing in the record to suggest she was unable to serve Ms. Jones. The court of appeals' factual determinations regarding counsel's service of subpoenas are reasonable on the record and they foreclose Petitioner's claim that his counsel rendered ineffective assistance because she failed to serve the witnesses with subpoenas.
The court of appeals also rejected Petitioner's contention that his counsel was ineffective for failing to call the witnesses. With respect to witness Jordan, Petitioner's counsel was ready to call the witness and, indeed, to accommodate the witness's schedule, to call her out of order. However, when the progress of the trial finally permitted counsel to specifically identify the time for Jordan to testify, Jordan refused to stay and do so. She left.
The record indicates that counsel consulted with Petitioner regarding the advisability of seeking a bench warrant to compel Jordan's appearance. Counsel reported to the court that Petitioner did not want to seek a bench warrant because Jordan was a relative. The court of appeals posited that counsel may have also chosen to forego seeking a bench warrant because forcing Jordan to appear when she clearly did not want to do so might make her hostile or uncooperative. Under those circumstances, the appellate court determined that Petitioner had failed to carry his burden to show that counsel's actions were professionally unreasonable. Petitioner does not address the appellate court's determination; therefore, he has failed to demonstrate that the determination is unreasonable.
With respect to the other witnesses—Sadler, Jones, and the apartment complex manager—the Michigan Court of Appeals noted that there is nothing in the record regarding the nature of their expected testimony or their willingness to testify on Petitioner's behalf. Absent record support for Petitioner's contention that the witnesses were willing to testify and that their testimony was favorable to Petitioner, it is impossible for Petitioner to show that his counsel was professionally unreasonable for failing to pursue their testimony or that it made any difference in the result. The state court's resolution is neither contrary to nor an unreasonable application of clearly established federal law.
"A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim." United States v. Ashimi, 932 F.2d 643, 650 (6th Cir. 1991) (footnote omitted).
Petitioner next claims that his counsel was ineffective for failing to develop the duress defense through Petitioner's text messages and the 911 call he purportedly made. The court of appeals concluded it was impossible to evaluate Petitioner's claim because there was nothing in the record regarding the import of the evidence:
(Mich. Ct. App. Op., ECF No. 11-9, PageID.1518.) The appellate court's determination that Petitioner had failed to carry his burden is entirely reasonable on the record and consistent with Strickland, the clearly established federal law regarding ineffective assistance of counsel. Moreover, based on Petitioner's arguments, it appears Petitioner's text messages and the 911 call would have simply reiterated Petitioner's contention that he was in fear because former associates claimed he owed them money. The evidence would have been entirely cumulative of the testimony of Petitioner, his wife, and his counselor and, to the extent the messages and 911 call occurred more than a day or two before or at any time after the robberies, would have been the sort of irrelevant hearsay that the court excluded when Petitioner's counselor testified. Because the state court's rejection of Petitioner's claim is reasonable and consistent with clearly established federal law, Petitioner is not entitled to habeas relief.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should 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, 467 (6th Cir. 2001) (per curiam). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, I have examined each of Petitioner's claims under the Slack standard. Under Slack, 529 U.S. at 484, 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." Id. "A petitioner satisfies this standard by demonstrating 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). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id.
I find that reasonable jurists could not conclude that this Court's dismissal of Petitioner's claims would be debatable or wrong. Therefore, I recommend that the Court deny Petitioner a certificate of appealability.
Moreover, although I conclude that Petitioner has failed to demonstrate that he is in custody in violation of the constitution and has failed to make a substantial showing of a denial of a constitutional right, I would not conclude that any issue Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
For the foregoing reasons, I recommend that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied. Finally, I recommend that the Court not certify that an appeal would not be taken in good faith.
