Cry v. McQuiggin
Filing
10
OPINION and ORDER Denying Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
PATRICK LAMAR CRY,
Petitioner,
Case Number 1:10-CV-15100
HONORABLE THOMAS L. LUDINGTON
UNITED STATES DISTRICT JUDGE
v.
GREG McQUIGGIN,
Respondent.
_____________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Petitioner Patrick Lamar Cry, presently confined at the Chippewa Correctional Facility in
Kincheloe, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner was convicted following a bench trial in the Wayne County Circuit
Court of possession with intent to deliver more than 50 (but less than 450) grams of cocaine,
Michigan Compiled Laws § 333.7401(2)(a)(iii); and possession of a firearm in the commission
of a felony, Michigan Compiled Laws § 750.227b. Petitioner was sentenced to fifty one months
to twenty years imprisonment on the possession with intent to deliver cocaine conviction and two
years in prison on the felony-firearm conviction. Petitioner alleges that the there was insufficient
evidence to convict him. Petitioner’s claim is meritless, and the petition will be denied.
I.
On June 6, 2006, at approximately 8:00 p.m., Officers Joseph Dabliz and Ryan Conner of
the Detroit Police Department were dispatched to an address at 15087 Beaverland on a call
involving breaking and entering a vacant house. Trial Tr. 9, 49, October 25, 2006, ECF No. 8-8.
As the officers pulled up to the scene, Officer Dabliz recognized the house from previous
narcotics calls. Id. at 9–11. A Buick Regal was parked in the driveway with Petitioner, the sole
occupant of the vehicle, sitting in the passenger seat with his legs dangling out of the car. Two
men were standing outside of the car. Id. at 10–11, 49–50. When the officers arrived, the two
men who were standing outside of the car nervously looked at the officers and then leaned
towards Petitioner. Id. at 12. Officer Dabliz testified that he then saw Petitioner twist backwards
towards the driver’s seat, reaching his right arm over his head toward the driver’s side area of the
car, where Officer Dabliz lost sight of him. Petitioner was then observed to quickly “pop” back
up. Id. at 12–13. Although Officer Conner did not observe Petitioner’s movements, Officer
Dabliz informed him of Petitioner’s actions. Id. at 51.
Petitioner and the other two men were detained by the police for being on vacant
property. Trial Tr. 13, 51, October 25, 2006. When Officer Dabliz inquired whether any of the
men had permission to be on the premises, Petitioner informed Officer Dabliz that the house
belonged to his uncle, but Petitioner was unable to produce a name or any authorization to be
there. Officer Dabliz subsequently ran information about the car that Petitioner had been sitting
in and learned that the car was registered to a man named Dwayne Jarrett, who was not present at
the scene. Petitioner told Officer Dabliz that the vehicle was owned by a friend, but once again
Petitioner could not supply the name of the owner. Id. at 14–15.
While Officer Dabliz was attempting to obtain information from the men, Officer Conner
searched the vehicle. Officer Conner searched the driver’s side first, where he found the keys in
the ignition and the control module (which controlled the windows, locks, and rearview mirrors)
propped open. This control module was approximately 18 inches long and 6 inches wide.
Officer Connor observed the butt of a handgun, a loaded Glock 27, inside the control module.
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Officer Connor recovered the handgun and placed it into evidence. This gun was admitted into
evidence at Petitioner’s trial. Trial Tr. 52–54, October 25, 2006.
Officer Conner also recovered cocaine from the control module. This cocaine was also
admitted into evidence at trial. When Officer Conner recovered the cocaine, the cocaine was in
several large balls, but had been broken up by the drug laboratory to perform drug tests on it.
Officer Conner testified that based on his experience as a police officer, the amount of cocaine
that he recovered from the car indicated that it was intended for delivery and sales. Trial Tr. 52,
55, 57–59, October 25, 2006. The parties stipulated that the laboratory analysis confirmed that
this substance was cocaine and that it weighed 82.20 grams. Id. at 103.
Officer Conner seized $ 1,643 from Petitioner. The money that was recovered from
Petitioner was mostly in $20, $10, and $5 denominations, which Officer Conner testified was an
indication that the money had been obtained from selling narcotics. Officer Conner testified that
no more than $20 was recovered from either of the other two men who were at the scene.
Neither man possessed any weapons or narcotics. Trial Tr. 60, 92, October 25, 2006.
A bench trial was held in the Wayne County Circuit Court. Following closing arguments,
the trial judge ruled that the prosecution had proven beyond a reasonable doubt that Petitioner
had constructively possessed the cocaine and the firearm recovered from the vehicle. Trial Tr.
124–27, October 25, 2006. Petitioner’s conviction was affirmed on appeal. People v. Cry, No.
283611; 2009 WL 1883947 (Mich. Ct. App. June 30, 2009), perm. app. denied, 485 Mich. 977,
774 N.W. 2d 884 (2009) (table).
Petitioner has now filed a petition for writ of habeas corpus, in which he contends that
due process requires vacating the convictions because there was legally insufficient evidence that
he possessed the gun and cocaine.
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II.
Habeas cases under 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), are subject to the following deferential standard of review:
An application for a 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.
“AEDPA thus 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, 130 S.
Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)); see also
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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, 131 S. Ct. 770, 786
(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
emphasized “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). “[I]f
this standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at
786. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J.,
concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his claim “was so lacking in
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justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
In reviewing a habeas petitioner’s claim that the evidence was insufficient to convict him,
a federal court is “bound by two layers of deference to groups who might view facts differently
than” the court would — the state trial court and the state appellate court. Brown v. Konteh, 567
F. 3d 191, 205 (6th Cir. 2009).
First, regarding the state trial court’s conclusions, as in all sufficiency of evidence
challenges, a court “must determine whether, viewing the trial testimony and exhibits in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In doing so, the court does not reweigh the evidence, re-evaluate the credibility of
witnesses, or substitute its judgment for that of the jury. Id. (citing United States v. Hilliard, 11
F.3d 618, 620 (6th Cir. 1993)). Therefore, even if a federal habeas court might have not
convicted the defendant had it been the factfinder in the state court, it must uphold the verdict if
any rational trier of fact could have found the defendant guilty after resolving all factual disputes
in favor of the prosecution.
Second, regarding the state appellate court’s conclusions, even if a federal habeas court
concludes that a rational trier of fact could not have found a habeas petitioner guilty beyond a
reasonable doubt, on habeas review the court “must still defer to the state appellate court’s
sufficiency determination as long as it is not unreasonable.” Brown, 567 F. 3d at 205; see also
Tucker v. Palmer, 541 F. 3d 652, 666 (6th Cir. 2008) (citing 28 U.S.C. § 2254(d)(1)).
Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the
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evidence at trial to exclude every reasonable hypothesis except that of guilt. See Johnson v.
Coyle, 200 F. 3d 987, 992 (6th Cir. 2000).
III.
In his sole claim for relief, Petitioner contends that there was insufficient evidence to
establish that he possessed the cocaine and the firearm that were recovered from the car by the
police. The Michigan Court of Appeals previously rejected Petitioner’s claim, writing:
In this case, the contraband was found inside a car parked outside a known drug
house; specifically, it was inside the armrest of the driver’s side door. Defendant
indicated that he had obtained the car from a friend. Although defendant was
with two other men, he was the sole occupant of the car, and he was seated in the
front passenger seat facing out the open door. When the officers appeared on the
scene, defendant leaned back out of sight while extending his right hand over his
head in the direction of the driver’s side door, where the contraband was located.
The evidence supports a reasonable inference that defendant was either hiding the
contraband or trying to close the armrest’s control panel, thereby demonstrating
knowledge and control of the contraband. Further, defendant was the only person
in possession of a large amount of cash in small denominations, which was
consistent with drug sales, and which permitted a reasonable inference that
defendant also had possession of the drugs in the car. Thus, the evidence was
sufficient to permit a reasonable factfinder to conclude that defendant had
constructive possession of the handgun and cocaine.
State v. Cry, No. 283611, 2009 WL 1883947 at * 1 (Mich. Ct. App. June 30, 2009).
Under Michigan law, to convict a defendant of possession with intent to deliver a
controlled substance, the prosecution must prove: (1) that the recovered substance is a narcotic;
(2) the weight of the substance; (3) that the defendant was not authorized to possess the
substance; and (4) that the defendant knowingly possessed the substance with the intent to
deliver it. See People v. McGhee, 709 N.W.2d 595, 612 (Mich. Ct. App. 2005). In order to
convict a defendant of possession of a controlled substance, a prosecutor must prove that he or
she exercised control or had the right to exercise control over the controlled substance. See
McFarland v. Yukins, 356 F. 3d 688, 708 (6th Cir. 2004) (citing People v. Konrad, 536 N.W.2d
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517 (Mich. 1995)). A defendant need not have actual physical possession of a controlled
substance in order to be guilty of possessing it — possession may be constructive. People v.
Wolfe, 489 N.W.2d 748, 753 (Mich. 1992). Moreover, constructive possession of a controlled
substance can be proven by circumstantial evidence. See People v. McGhee, 709 N.W.2d at 621.
The elements of felony-firearm are that the defendant possessed a firearm while
committing, or while attempting to commit, a felony offense. See Parker v. Renico, 506 F.3d
444, 448 (6th Cir. 2007). Under Michigan law, possession of a firearm can also be either actual
or constructive. Id. (citing People v. Hill, 446 N.W.2d 140, 143 (Mich. 1989)). Under both
federal and Michigan law, “a person has constructive possession if there is proximity to the
[weapon] together with indicia of control.” Id. “Put another way, a defendant has constructive
possession of a firearm if the location of the weapon is known and it is reasonably accessible to
the defendant.” Id. at 448 n.3 (quoting Hill, 446 N.W. at 143). The Sixth Circuit notes that
“[c]onstructive possession exists when a person does not have actual possession but instead
knowingly has the power and the intention at a given time to exercise dominion and control over
an object, either directly or through others.” Id. at 449 (quoting United States v. Craven, 478 F.
2d 1329, 1333 (6th Cir.1973)), abrogated on other grounds by Scarborough v. United States,
431 U.S. 563 (1977)).
In the present case, there was sufficient evidence for a rational trier of fact to conclude
that the prosecutor had proven beyond a reasonable doubt that Petitioner constructively
possessed the cocaine that was recovered from the car that he had been sitting in.
First, as the police approached the vehicle, Officer Dablitz noticed Petitioner make a
furtive gesture towards the driver’s side of the vehicle, from where the cocaine was later
recovered. A rational trier of fact could reasonably infer that Petitioner was seeking to conceal
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the cocaine from the approaching officers. See United States v. McGee, 529 F.3d 691, 696 (6th
Cir. 2008). Second, Petitioner was the sole occupant of the vehicle in which the cocaine was
found. The fact that Petitioner was the only person in the car in which a significant amount of
cocaine — 82.20 grams — was seized is evidence from which a rational trier of fact could
reasonably conclude Petitioner constructively possessed the cocaine. One would not expect
another person “to have left [petitioner] alone with such a large and valuable quantity of drugs.”
U.S. v. Shull, 349 Fed. App’x 18, 22 (6th Cir. 2009). Third, when initially questioned by Officer
Dablitz, Petitioner informed him that the vehicle that he was sitting in belonged to a friend, but
he was unable to give Officer Dablitz a name of this friend. The fact that Petitioner gave
misleading information about the ownership of this vehicle could lead to the reasonable
inference that Petitioner was aware of the cocaine’s presence in the vehicle but was attempting to
shift blame to another person. See e.g., United States v. Palomino, 100 F.3d 446, 451 (6th Cir.
1996) (finding that defendant knowingly possessed cocaine found in automobile was supported
in part by evidence of his control and possession of the automobile and his inconsistent stories
about ownership of the automobile). And fourth, the officers recovered a large sum of money
from Petitioner in small denominations — $5, $10, and $20 bills. Petitioner’s possession of such
a large amount of money in small denominations while sitting in a vehicle containing a
substantial amount of cocaine and a firearm is further evidence that would support a reasonable
inference that he constructively possessed the cocaine. See United States v. Garcia, 866 F.2d
147, 152 (6th Cir. 1989).
There was likewise sufficient evidence for a rational trier of fact to conclude that
Petitioner constructively possessed the firearm that was recovered from the control module area
of the vehicle. First, as mentioned above, Petitioner was observed making a furtive gesture
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towards the driver’s side of the vehicle. Officer Conner subsequently recovered the firearm from
the control module by the driver’s side of the vehicle. The fact that Petitioner was the only
occupant of the vehicle and the firearm was recovered from the very area where he had been
seen making suspicious movements only moments earlier supports an inference that he
constructively possessed this firearm. See United States v. Newsom, 452 F.3d 593, 609 (6th Cir.
2006) (upholding felon in possession of a firearm conviction where defendant was the only
person in the vehicle where the gun was found underneath his seat and defendant appeared as if
he was putting something under the seat); see also United States v. Mosley, 339 Fed. App’x 568,
572 (6th Cir. 2009) (there was sufficient evidence that defendant possessed firearm, where the
defendant was the sole occupant of vehicle containing firearm, as officer approached vehicle, he
observed defendant making movements that were consistent with individual who was trying to
conceal something, and officer recovered firearm in precise area where he had earlier seen
defendant’s suspicious movements).
Moreover, Officer Conner testified drug dealers often
possess firearms to protect their turf. Petitioner, of course, was found in possession of a large
sum of money in small denominations while sitting in a vehicle with a large amount of cocaine.
Under the circumstances, it was reasonable for the factfinder to infer that Petitioner had a reason
to arm himself to protect the cocaine in his possession — indeed, to protect himself. See United
States v. Castano, 543 F.3d 826, 838 (6th Cir. 2008).
In light of the foregoing, the Michigan Court of Appeals’ decision that there was
sufficient evidence to maintain a conviction against Petitioner for possession with intent to
deliver more than 50 but less than 450 grams of cocaine and felony-firearm under a constructive
possession theory was objectively reasonable, thus defeating Petitioner’s claim for habeas relief.
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See e.g., Towns v. Jackson, 287 F. Supp. 2d 749, 758 (E.D. Mich. 2003). Petitioner is not
entitled to habeas relief on his claim.
IV.
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court rejects a habeas claim on the merits, the substantial showing threshold is
met if Petitioner demonstrates that reasonable jurists would find the district court’s assessment of
the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484–85
(2000). “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 that standard, a district 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. at 336–37. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules Governing § 2254
Cases, Rule 11(a), 28 U.S.C. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875
(E.D. Mich. 2010).
Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right.
Accordingly, a certificate of
appealability is not warranted in this case. The Court further concludes that Petitioner should not
be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See
Fed.R.App. P. 24(a).
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V.
Accordingly, it is ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that permission to proceed in forma pauperis on appeal is
DENIED.
Dated: October 28, 2011
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Patrick Cry, #587171 at Chippewa Correctional Facility, 4269 W. M-80,
Kincheloe, MI 49784 by first class U.S. mail on October 28, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS
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