Marcus Middlebrook v. Robert Napel

Filing

OPINION and JUDGMENT filed: The district court's denial of Middlebrook's habeas corpus petition is AFFIRMED. Decision for publication pursuant to local rule 206. Alice M. Batchelder, Chief Circuit Judge; Damon J. Keith and Bernice Bouie Donald (AUTHORING), Circuit Judges.

Case: 10-2172

Document: 006111476890

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0371p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
MARCUS MIDDLEBROOK,
Petitioner-Appellant, No. 10-2172
v.
>
,
ROBERT NAPEL, Warden,
Respondent-Appellee. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:07-cv-1242—Paul Lewis Maloney, Chief District Judge.

Argued: June 7, 2012
Decided and Filed: October 25, 2012
Before: BATCHELDER, Chief Judge, KEITH and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Christopher M. Bruno, WINSTON & STRAWN LLP, Washington, D.C.,
for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Christopher M. Bruno,
Gene C. Schaerr, WINSTON & STRAWN LLP, Washington, D.C., Stephanie B. Sebor,
WINSTON & STRAWN LLP, Chicago, Illinois, for Appellant. Bruce H. Edwards,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee.
_________________
OPINION
_________________
BERNICE B. DONALD, Circuit Judge. Marcus Middlebrook appeals the district
court’s denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. On April
23, 2004, a jury convicted Middlebrook of assault with intent to murder, felony firearm
possession, and unlawful driving away of a motor vehicle. Middlebrook argues that

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clearly established federal law entitles him to a new trial because he was denied a fair
trial when the jury was exposed to extraneous influences and engaged in premature
deliberations. The Michigan Court of Appeals determined that there were no extraneous
influences on the jury and Michigan Supreme Court denied his application for leave to
appeal. Middlebrook then filed his petition for a writ of habeas corpus in the District
Court for the Western District of Michigan. The district court denied the petition
without addressing the issue of premature deliberations. Because this claim is without
merit and for the reasons stated below, we AFFIRM the district court’s denial of
Middlebrook’s habeas corpus petition.
I.
On May 3, 2003, Nicole Bell drove to pick up Marcus Middlebrook, with whom
she had a relationship for several months. Bell drove Middlebrook to the home of one
of his friends. After she parked the car, Middlebrook shot her in the face, dragged her
out of the car, and ordered her to walk into the nearby river. Bell remained in the river
until she saw Middlebrook walk away and heard the car pull off. She then dialed 911
and, when help arrived, was taken to the hospital.
In April 2004, following a trial in the 30th Circuit Court for Ingham County,
Michigan, a jury convicted Middlebrook of three offenses for his attack against Bell and
he was sentenced to terms of imprisonment as follows: 30-60 years for assault with
intent to commit murder; a consecutive term of 2 years for felony-firearm possession;
and a concurrent term of 40-60 months for unlawful driving away of a motor vehicle.
On appeal, the Michigan Court of Appeals affirmed his conviction. Middlebrook then
filed an application for leave to appeal to the Michigan Supreme Court, but it was
denied.
Next, Middlebrook filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the Western District of Michigan. The petition raised four issues,
including the contention that Middlebrook was denied his right to a fair trial when the
jurors discussed certain testimony and shared outside information about him during trial.

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The matter was referred to a Magistrate Judge, who recommended denying the petition
because the decision by the Michigan Court of Appeals was not contrary to, nor did it
involve an unreasonable application of, clearly established federal law. The district
court adopted the Magistrate Judge’s Report and Recommendation denying the habeas
petition and a certificate of appealability. Middlebrook filed a notice of appeal with this
court. His certificate of appealability was granted March 1, 2011.
II.
“In appeals of federal habeas corpus proceedings, we review the district court’s
legal conclusions de novo and its factual findings under a ‘clearly erroneous’ standard.”
Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Because Middlebrook’s petition was
filed after April 24, 1996, our review of the decisions of the state trial and appellate
courts is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). Under AEDPA:
An application for writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim–
(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 on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
Pursuant to § 2254(d)(1), a decision is “contrary to” clearly established federal
law if “the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000); see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003). A state court unreasonably applies clearly established federal law if it

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“identifies the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the particular . . . case”
or “if the state court either unreasonably extends a legal principle from
[the Supreme Court’s] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context
where it should apply.”
Lancaster, 324 F.3d at 429 (quoting Williams, 529 U.S. at 407).
Although under AEDPA federal courts give deference to state court decisions
regarding claims adjudicated on the merits, a modified version of AEDPA deference
applies “where the state court adjudicate[s] the claim . . . with little analysis on the
substantive constitutional issue.” Vasquez v. Jones, 496 F.3d 564, 569-70 (6th Cir.
2007). In Maldonado v. Wilson, the court found that a modified form of AEDPA
deference was applicable because the state court’s opinion applied only state law and
made no mention of the federal law surrounding petitioner’s constitutional claims.
416 F.3d 470, 475 (6th Cir. 2005). Similarly, Middlebrook framed his argument as a
violation of his constitutional right to a fair trial, but the analysis offered by the
Michigan Court of Appeals applied Michigan state law without addressing the applicable
federal law. Modified AEDPA deference is therefore applicable in this case. “Under
this standard, the court conducts a ‘careful’ and ‘independent’ review of the record and
applicable law, but it cannot reverse ‘unless the state court’s decision is contrary to or
an unreasonable application of federal law.’” Vasquez, 496 F.3d at 570 (quoting
Maldonado, 416 F.3d at 476).
A. Extraneous Influences on the Jury
Middlebrook claims that his Sixth Amendment and Fourteenth Amendment
rights were violated because the jurors were exposed to extraneous influences. He
contends that this violation denied him the right to an impartial jury. Middlebrook
further argues that he was entitled to a mistrial or at least a proper hearing to determine
the impact of the extraneous influences on the jurors. Middlebrook relies on Smith v.
Phillips, 455 U.S. 209 (1982), and Remmer v. United States, 347 U.S. 227 (1954), to
support his arguments. But neither does.

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In Smith v. Phillips, a defendant convicted of murder moved to vacate his
sentence after the prosecuting attorney, upon completion of the trial, informed defense
counsel and the court that during trial a juror submitted an application for employment
as an investigator in the District Attorney’s Office. 455 U.S. at 212. The district court
granted the defendant habeas relief and ordered him released unless the State court
granted him a new trial. Id. at 214. The United States Court of Appeals, without
considering whether or not the juror was actually prejudiced, affirmed the district court’s
holding. Id. The Supreme Court reversed this decision, holding that “due process does
not require a new trial every time a juror has been placed in a potentially compromising
situation.” Id. at 217. The Supreme Court further noted that “the remedy for allegations
of juror partiality is a hearing in which the defendant has the opportunity to prove actual
bias.” Id. at 215.
The Court in Remmer v. United States was faced with a case where the petitioner
did not find out until the conclusion of the trial that the jury foreman had been
approached and told that he could profit by rendering a verdict favorable to the
petitioner. 347 U.S. at 228. The petitioner moved for a new trial arguing that he was
denied the opportunity to request a hearing to determine the circumstances surrounding
the incident. Id. at 228-29. The court of appeals affirmed the district court’s denial of
the motion. Id. at 229. The Supreme Court vacated and remanded the judgment with
instructions to hold a hearing to determine whether the incident was harmful to the
petitioner. Id. at 230.
In this case, James Logan, juror number 7, presented the trial court with a letter
stating that he believed the jurors were engaging in talks that may have been contrary
to the court’s instructions to not discuss the case with anyone, including associate jurors,
prior to deliberations. Upon receiving the letter, the trial court judge questioned James
Logan, the juror accused of engaging in the inappropriate discussions, and one other
juror. During the individual interviews, James Logan stated that the “colored” juror told
other jurors that her family told her to “watch her back” and that the defendant had
“quite a family.” The other two jurors denied discussing any portions of the case with

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anyone, including family members. The allegedly problematic juror stated that any
comments her family made were in jest and related to her jury duty generally, not to the
case. The trial court offered defense counsel the opportunity to question the entire
panel, but defense counsel declined. The court, along with the parties, agreed that Logan
was the actual problematic juror and dismissed him from the jury. The court then
determined that its investigation of the matter was sufficient.
Sixth Circuit precedent places the burden on the defendant to show actual bias
where there are claims of juror bias. See Phillips v. Bradshaw, 607 F.3d 199, 223
(6th Cir. 2010); United States v. Zelinka, 862 F.2d 92, 95 (6th Cir. 1988). Here, all
parties were satisfied with the trial court’s questioning of the three jurors on the
extraneous influences allegation. Under Supreme Court precedent, the trial court is not
required to interview every juror. Rather, it must “determine the circumstances, the
impact thereof upon the juror, and whether or not [they were] prejudicial.” Remmer,
347 U.S. at 230. This is exactly what the trial court did by questioning the complaining
juror and the juror accused of engaging in the inappropriate discussions. Middlebrook
argues that the hearing was insufficient. However, he was given the opportunity to
question other jurors but decided it was unnecessary. He cannot now assert his request
for a “proper” Remmer hearing when he stated that he was satisfied with the trial court’s
course of action. Furthermore, Middlebrook has not demonstrated any actual bias. His
constitutional claims are therefore without merit. “Due process means a jury capable
and willing to decide the case solely on only the evidence before it, and a trial judge ever
watchful to prevent prejudicial occurrences and to determine the effect of such
occurrences when they happen.” Smith,455 U.S. at 217. Middelbrook’s due process
rights were not violated, and he received a fair trial by an impartial jury.
Based upon the applicable federal law, it is clear that the trial court conducted
the necessary inquiry into the allegation of extraneous influences on the jury. This
conclusion is in accordance with the holding of the Michigan Court of Appeals. For this
reason, we find that the state court’s conclusion is not contrary to or an unreasonable
application of federal law.

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B. Premature Deliberations
Middlebrook argues, in the alternative, that the alleged inappropriate discussions
should be characterized as prejudicial premature deliberations that violated his Sixth
Amendment right to a fair trial and his Fourteenth Amendment right to Due Process. In
support of this argument, Middlebrook cites several cases from other circuits. However,
as provided by AEDPA, clearly established law pertains only to Supreme Court cases.
The Supreme Court has not entertained a case involving premature deliberations, and
this is not a case where the state court unreasonably refused to extend a legal principle
to a new context in which it should apply. See Tolbert v. Trombley, 424 F. App’x. 419,
421-22 (6th Cir. 2011). Middlebrook’s claim therefore lacks merit.
IV. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s denial of
Middlebrook’s habeas petition.