Szymanski v. Renico

Filing 82

ORDER denying 71 Motion for a Franks hearing. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EUGENE SZYMANSKI,
Petitioner,

Case Number 05-10241
Honorable David M. Lawson

v.
PAUL RENICO,
Respondent.
__________________________________________/
ORDER DENYING PETITIONER’S MOTION FOR A FRANKS HEARING
Petitioner Eugene Szymanski was convicted by a Wayne County, Michigan jury of assault
with intent to do great bodily harm less than murder, felon in possession of a firearm, and possession
of a firearm during the commission of a felony. He filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, amended twice, identifying a number of claims for relief. On June
30, 2011, the petitioner filed a motion requesting an evidentiary hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). The petitioner argues that a Franks hearing is warranted because
newspaper articles detailing irregularities in the handling of evidence at the Detroit Crime Lab call
into question evidence admitted in his case and because false statements were included in a warrant.
The petitioner’s motion must be denied for several reasons.
First, the hearing the petitioner seeks — a “Franks hearing” — is an evidentiary hearing.
Recently, the Supreme Court reiterated that habeas review under 28 U.S.C. § 2254(d)(1) is highly
deferential, Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 786 (2011) (holding that federal
habeas courts must review state court decisions with “deference and latitude”), and then added the
further limitation that review is limited to the record that was before the state court that adjudicated
the claim on the merits, Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398 (2011). “In other

words, a federal habeas court may not rely on evidence introduced for the first time in that court and
reviewed by that court in the first instance to determine that a state court decision was ‘contrary to’
to or an ‘unreasonable application of’ clearly established federal law.” Robinson v. Howes, 663 F.3d
819, 823 (6th Cir. 2011) (citing Pinholster, 131 S. Ct. at 1399).
In this case, it does not appear that the petitioner ever challenged the search warrant in state
court, and therefore no record was ever developed, and there is no state court decision that is entitled
to deferential review. In such a case, the governing rule for federal evidentiary hearings is found
in 28 U.S.C. § 2254(e)(2). Pinholster, 131 S. Ct. at 1401. Under that statute, if an applicant for
habeas relief “has failed to develop the factual basis of a claim in State court proceedings,” a district
court may not grant an evidentiary hearing on the claim unless the applicant shows that:
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2)(A)-(B). The petitioner has not made that showing here.
Second, even if the petitioner could overcome the limitations of section 2254(e)(2), he would
not be entitled to a Franks hearing because he has not made the requisite preliminary showing. In
Franks v. Delaware, 438 U.S. 154 (1978), the Court held that “where the defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.” Id. at 155-56. The Sixth Circuit has applied that
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limitation faithfully. See United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011) (quoting
United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008) (alteration in original)). Even if
statements in the affidavit are false, “a Franks hearing is warranted” only “[i]f, when the alleged
false statement is put aside, the affidavit no longer provides the court with probable cause.” Id. at
504-05.
In this case, the petitioner has not made any preliminary showing of entitlement to a hearing
under Franks. The petitioner has identified neither the warrant he seeks to challenge nor the
allegedly false statements included in the affidavit supporting the warrant. Instead, the petitioner
merely repeats the allegations in his habeas petition that false testimony as to the presence of gun
powder on the complainant’s jacket was offered at trial and makes a general statement that a warrant
issued in his case contained false statements about gunpowder. The petitioner’s allegations in his
motion are insufficient to create an entitlement to a Franks hearing. Moreover, because the
petitioner did not challenge any search warrants in the state courts, the record is devoid of any
documentation from which the Court could determine the precise nature of the petitioner’s
challenge.
Third, even if the petitioner had satisfied the required preliminary showing, the Court would
be unable to grant habeas corpus relief based on the petitioner’s allegation that a search warrant was
issued improperly. The Supreme Court has held that “where the State has provided an opportunity
for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). The Sixth Circuit employs

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a two-step analysis to determine whether a defendant was given a full and fair opportunity to litigate
a Fourth Amendment claim in state court:
First, the court must determine whether the state procedural mechanism, in the
abstract, presents the opportunity to raise a fourth amendment claim. Second, the
court must determine whether presentation of the claim was in fact frustrated because
of a failure of that mechanism.
Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (internal quotation marks omitted).
Michigan provides ample opportunity for litigation of Fourth Amendment claims. Typically,
such claims are addressed before trial by means of a motion to suppress filed before trial. See
People v. Ferguson, 376 Mich. 90, 93-94, 135 N.W.2d 357, 358-59 (1965) (holding that motions
to suppress must be brought timely where the factual circumstances constituting the illegal arrest
or seizure are known to the defendant in advance of trial). However, even absent objections in the
trial court, Michigan appellate courts entertain Fourth Amendment claims where it appears that the
evidence in question affected the outcome of the trial. People v. Harris, 95 Mich. App. 507, 509-10,
291 N.W.2d 97, 99 (1980).
In this case, the petitioner has not demonstrated that the presentation of his claim was
frustrated because of a failure of Michigan’s mechanism for raising a Fourth Amendment claim.
The petitioner points to “new evidence” in the form of a newspaper article criticizing the Detroit
crime lab. However, even assuming that this article would be sufficient to raise doubts as to the
validity of a search warrant in the petitioner’s case, the emergence of new evidence does not
demonstrate that the procedural mechanism for the petitioner to raise a Fourth Amendment claim
in the state courts was frustrated. Nor does the fact that the petitioner failed to raise his Fourth
Amendment claim either prior to trial or on appeal constitute a failure of Michigan’s procedural
mechanism.
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Finally, even construing the petitioner’s motion as a request for an evidentiary hearing, the
Court must deny the petitioner’s request. Rule 8 of the Rules Governing Section 2254 Cases in the
United States District Courts states, in pertinent part:
If the petition is not dismissed at a previous stage in the proceeding, the judge, after
the answer and the transcript and record of state court proceedings are filed, shall,
upon a review of those proceedings and of the expanded record, if any, determine
whether an evidentiary hearing is required.
Rule 8(a), Rules Governing Section 2254 Cases. This Court is not persuaded that an evidentiary
hearing is necessary to adjudicate the claims in the petition at this time. See 28 U.S.C. § 2254(e)(2).
Accordingly, it is ORDERED that the petitioner’s motion for a Franks hearing [dkt. #71]
is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 30, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 30, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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