Nali v. Phillips
Filing
100
MEMORANDUM OPINION and ORDER On Remand Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Petitioner Leave to Appeal in Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK NALI,
Petitioner,
Civil No. 2:07-CV-15487
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
THOMAS PHILLIPS,
Respondent.
___________________________/
OPINION AND ORDER ON REMAND DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN
FORMA PAUPERIS
Frank Nali, (“petitioner”), presently on parole supervision with the Michigan
Department of Corrections through the Detroit Metro Parole Office 1 filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he
challenged his conviction for extortion, M.C.L.A. 750.213. This matter is on
remand from the United States Court of Appeals for the Sixth Circuit following the
reversal of the issuance of a writ by this Court. For the reasons that follow, the
petition for writ of habeas corpus is DENIED.
1
The Court obtained this information from the Michigan Department of
Corrections’ Offender Tracking Information System (OTIS), which this Court is
permitted to take judicial notice of. See Ward v. Wolfenbarger,323 F. Supp. 2d
818, 821, n. 3 (E.D. Mich. 2004).
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I. Background
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court in its original opinion and order granting habeas relief did an
extensive recitation of the facts and procedural history of petitioner’s case in the
state courts. See Nali v. Phillips, 630 F. Supp. 2d 807, 810-14 (E.D. Mich. 2009).
For the sake of brevity, the Court again adopts these facts and will add only those
facts that are necessary for adjudicating petitioner’s remaining claims.
The Court granted petitioner relief on his insufficient evidence claim. Nali v.
Phillips, 630 F. Supp. 2d at 816-19. The Court denied petitioner relief on his
ineffective assistance of counsel, substitution of counsel, and denial of selfrepresentation claims. Id., at 819-22. The Court, however, did not address
petitioner’s remaining claims. Id., at 822.
The United States Court of Appeals for the Sixth Circuit reversed the
Court’s decision. Nali v. Phillips, 681 F. 3d 837 (6th Cir. 2012). The Sixth Circuit
did not address the claims that the Court did not adjudicate but simply remanded
“for entry of an order in compliance with this decision.” Id. at 853.
On June 20, 2013, the Court reopened the petition to the Court’s active
docket and denied petitioner’s motion to amend the petition to add an
unexhausted claim involving the revocation of petitioner’s parole. The Court gave
petitioner thirty days to inform the Court whether he wished to withdraw his
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petition to exhaust this new claim or whether he wished to proceed only with the
exhausted claims that had not been adjudicated by the Court. Petitioner informed
the Court that he wishes to proceed only with his exhausted claims. (See Dkts. #
95, 96).
In his petition for writ of habeas corpus, petitioner sought relief on the
following claims:
I. Petitioner was denied due process and a fair trial because there
was not sufficient evidence to convict Petitioner and the prosecutor
failed to prove the elements of the crime existed.
II. Petitioner was denied his Sixth Amendment right when the court
denied him new counsel, including the right to represent himself and
denying him a continuance.
III. Petitioner was denied his constitutional right to effective
assistance of counsel.
IV. Petitioner was denied due process and a fair trial due to
prosecutorial misconduct.
V. Petitioner was denied due process and a fair trial due to errors by
the trial court.
VI. MCL 750.213 is unconstitutional.
VII. The trial judge’s actions amounted to misconduct and deprived
Defendant of due process.
VIII. Petitioner was denied due process when the Michigan Parole
Board failed to follow the statutory guidelines and procedures for
determining his parolability.
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The Court already adjudicated petitioner’s first three claims in its original
opinion and order. The Court addresses Petitioner’s five remaining claims. 2
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
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.
2
In the opinion reopening the case to the Court’s active docket, the Court
erroneously stated that it had only adjudicated petitioner’s insufficiency of
evidence and ineffective assistance claims and had not addressed petitioner’s six
other claims. Upon reviewing again its original opinion and order granting habeas
relief, the Court notes that it also rejected petitioner’s second claim involving the
denial of new counsel and the denial of the right to self-representation. Nali, 630
F. Supp. 2d at 821-22. The confusion over the number of claims may be due to
the fact that the Court discussed petitioner’s second and third claims together
under the rubric of ineffective assistance of counsel. Any attempt by petitioner to
relitigate his second claim is barred by 28 U.S.C. § 2244(b)(1). See In re Bowling,
422 F.3d 434, 440 (6th Cir. 2005). The Court will only address petitioner’s fourth
through eighth claims.
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A decision of a state court 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, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11. “[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)).
III. Discussion
A. Claim # 4. The prosecutorial misconduct claims.
In his fourth claim, petitioner contends that he was denied a fair trial
because of prosecutorial misconduct. 3
3
Respondent contends that several of petitioner’s remaining claims were
never properly exhausted with the state courts and should now be procedurally
defaulted because petitioner no longer has any state court remedy with which to
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When a petitioner seeking habeas relief makes a claim of prosecutorial
misconduct, the reviewing court must consider that the touchstone of due
process is the fairness of the trial, not the culpability of the prosecutor. On
habeas review, a court’s role is to determine whether the conduct was so
egregious as to render the entire trial fundamentally unfair. Serra v. Michigan
Department of Corrections, 4 F. 3d 1348, 1355-56 (6th Cir. 1993). In evaluating
prosecutorial misconduct in a habeas case, consideration should be given to the
degree to which the challenged remarks had a tendency to mislead the jury and
to prejudice the accused, whether they were isolated or extensive, whether they
were deliberately or accidentally placed before the jury, and, except in the
sentencing phase of a capital murder case, the strength of the competent proof
against the accused. Id.
Petitioner first claims that the prosecutor elicited perjury by asking the
following question to the complainant:
Q [by prosecutor]: There’s this message asking you to contact him
to resume the relationship?
exhaust these claims. The Court disagrees. In addition to the brief on appeal
filed by appellate counsel, petitioner filed a pro per Standard 4 brief on appeal as
well as a pro per motion to remand. Petitioner’s fourth through seventh claims
were raised either in his pro per brief or in his motion to remand and were
mentioned in the headings of either pleading. See Dkt. # 20-1, 20-2. Although
some of petitioner’s claims were only raised in his motion to remand, this is
sufficient for the purpose of exhausting a claim for federal habeas review. See
e.g. Elmore v. Foltz, 768 F. 2d 773, 775 (6th Cir. 1985).
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A. [the complainant]: Well, to at least talk about it, right.
(Tr. 2/25/03, p. 42).
Petitioner claims that this testimony was false because no such telephone
message was sent by him to the complainant.
The deliberate deception of a court and jurors by the presentation of
known and false evidence is incompatible with the rudimentary demands of
justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also a denial
of due process when the prosecutor allows false evidence or testimony to go
uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations
omitted). To prevail on a claim that a conviction was obtained by evidence that
the government knew or should have known to be false, a defendant must show
that the statements were actually false, that the statements were material, and
that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th
Cir. 1998). However, a habeas petitioner must show that a witness’ statement
was “indisputably false,” rather than misleading, to establish a claim of
prosecutorial misconduct or a denial of due process based on the knowing use
of false or perjured testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir.
2000).
Conclusory allegations of perjury in a habeas corpus petition must be
corroborated by some factual evidence. Barnett v. United States, 439 F.2d 801,
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802 (6th Cir.1971). Petitioner presented no evidence that the complainant’s
testimony about this telephone message was false, accordingly, he is not
entitled to relief on this claim.
Petitioner next claims that the prosecutor violated M.R.E. 404(b)’s
prohibition on the introduction of “prior bad acts” evidence by referring to tapes
and letters that petitioner sent to the complainant in the past. (Tr. 2/25/03, pp.
145-49).
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Thus, errors in the application of state law, especially rulings
regarding the admissibility of evidence, are usually not questioned by a federal
habeas court. Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000).
Petitioner’s claim that the prosecutor violated M.R.E. 404(b) by admitting
this evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F 3d 514,
519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did
not permit Court to reverse state court conviction based on their belief that the
state trial judge erred in ruling that prior injury evidence was admissible as bad
acts evidence under California law). The admission of this “prior bad acts” or
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“other acts” evidence against petitioner at his state trial does not entitle him to
habeas relief, because there is no clearly established Supreme Court law which
holds that a state violates a habeas petitioner’s due process rights by admitting
propensity evidence in the form of “prior bad acts” evidence. See Bugh v.
Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003); Adams v. Smith, 280 F. Supp. 2d
704, 716 (E.D. Mich. 2003).
Petitioner next contends that the prosecutor committed misconduct during
her cross-examination of petitioner with the following exchange:
Q [the prosecutor]: So, that was her punishment, right? For her bad
behavior?
A [the petitioner]: No, if two people have [a] relationship, when they
break up, who says that one or the other has no right to say
anything about that relationship?
Q [the prosecutor]: I guess you did.
(Tr. 2/26/03, p. 36). 4
Petitioner claims that it was somehow inappropriate for the prosecutor to
imply in this exchange that petitioner suggested that he had the right to say
anything about a relationship after the parties broke up. Petitioner does not
show how this comment was improper. Moreover, even if the prosecutor’s
comment during the cross-examination of petitioner was somehow improper, it
4
The trial transcript from February 26, 2003 was not provided with the
initial Rule 5 materials but was provided later to the Court. (See Dkt. # 67).
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was not so flagrant as to amount to prosecutorial misconduct, in light of the fact
that the comment was isolated. See Smith v. Mitchell, 567 F. 3d 246, 256 (6th
Cir. 2009).
Petitioner next contends that the prosecutor made several
misrepresentations of fact in her closing argument. Petitioner refers to the
prosecutor’s comment that petitioner testified that he only threatened to expose
the complainant after she broke up with him. (Tr. 2/26/03, pp. 43, 60). Petitioner
further claims that the prosecutor misstated the evidence by stating that it was
petitioner’s “responsibility to punish her to teach her. ‘You don’t treat me this
way.’” (Id., p. 44). Petitioner further claims that the prosecutor misstated the
facts by stating: “That was the extortion...You stay with me or I’m going to do
this.” (Id., p. 45). Petitioner claims that the prosecutor further misrepresented
the facts by stating that: “I mean he has referred to the tapes way back when
and then after that is was constant.”(Id., p. 47). Petitioner claims that the
prosecutor further misstated the evidence by stating that petitioner contradicted
himself about having given the complainant copies of all the tapes, when
petitioner had not contradicted himself. (Id., p. 49). Petitioner further states that
the prosecutor committed misconduct by asking the jurors whether it made
sense that the complainant would actually take the tapes home to where her
husband could find them. (Id., p. 50). Petitioner further states that the
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prosecutor misstated the evidence by arguing that the complainant was afraid
and stayed in the relationship against her will. (Id., pp. 48, 51).
Misrepresenting facts in evidence by a prosecutor can amount to
substantial error because doing so “may profoundly impress a jury and may
have a significant impact on the jury’s deliberations.” Washington v. Hofbauer,
228 F. 3d 689, 700 (6th Cir. 2000)(quoting Donnelly v. DeChristoforo, 416 U.S.
637, 646 (1974)). Likewise, it is improper for a prosecutor during closing
arguments to bring to the jury any purported facts which have not been
introduced into evidence and which are prejudicial. Byrd, 209 F. 3d at 535.
However, prosecutors must be given leeway to argue reasonable inferences
from the evidence. Id.
The prosecutor’s remarks were reasonable inferences from the evidence
in this case, thus, she did not commit misconduct in her closing argument. Any
prosecutorial misconduct in attempting to inject facts that had not been
introduced into evidence was also ameliorated by the trial court’s instruction that
the lawyers’ comments and statements were not evidence. (Tr. 26/03, p. 66).
See Hamblin v. Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003).
Petitioner lastly claims that the prosecutor misstated the elements of the
crime of extortion.
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The trial court gave the jurors the correct instruction on the elements of
extortion. (Tr. 2/26/03, pp. 72-74). In light of the trial court’s instructions on the
elements required for extortion, any misstatements by the prosecutor concerning
the elements of this crime was harmless error, at most. See United States v.
Deitz, 577 F. 3d 672, 696-97 (6th Cir. 2009). Petitioner is not entitled to habeas
relief on his fourth claim.
B. Claim # 5. The Confrontation Clause claim.
As part of his fifth claim, petitioner appears to argue that the judge violated
his right of confrontation when she informed him that she would not allow
petitioner to recall the complainant to testify if he chose to represent himself after
asking to do so in the middle of trial and after the complainant had testified.
“[T]he Confrontation Clause guarantees only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, that the defendant might wish.’” United States v. Owens, 484
U.S. 554, 559 (1988)(internal quotations omitted). The Confrontation Clause of
the Sixth Amendment does not prevent a trial judge from imposing limits on a
defense counsel’s inquiry into potential bias of a prosecution witness; to the
contrary, trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
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issues, a witness’ safety, or interrogation that is repetitive or only marginally
relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Where it is merely
the extent of cross-examination into a certain area that is limited, the trial judge
retains much wider latitude of discretion, although that discretion may still be
abused. Dorsey v. Parke, 872 F. 2d 163, 166 (6th Cir. 1989). Where the trial
court limits the extent of cross-examination, the inquiry for the reviewing court is
“whether the jury had enough information, despite the limits placed on otherwise
permitted cross-examination, to assess the defense theory.” Id.
Matters which relate to the admission of evidence and the recalling and
cross-examining of witnesses “are peculiarly within the province of the trial
judge[.]”, who “has a wide latitude and discretion” regarding these issues. Buder
v. Bell, 306 F. 2d 71, 75-76 (6th Cir. 1962). Although a trial judge’s errors
regarding these issues may be the subject of an appeal, “[R]arely would such
errors warrant a collateral attack on a judgment of conviction as being a denial of
due process of law.” Id.
The trial judge’s refusal to permit petitioner to recall the complainant to
testify did not violate his right to confrontation because there has been no
showing that petitioner had any proposed areas of inquiry that would have
yielded significant impeachment evidence against the complainant’s trial
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testimony. See Stewart v. Wolfenbarger, 468 F. 3d 338, 348 (6th Cir. 2006).
Petitioner is not entitled to habeas relief on this claim.
C. Claim # 5. The jury instruction claims.
Petitioner also alleges instructional error in his fifth claim.
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack upon the constitutional validity of
a state court conviction is even greater than the showing required in a direct
appeal. The question in such a collateral proceeding is whether the ailing
instruction so infected the entire trial that the resulting conviction violates due
process, not merely whether the instruction is undesirable, erroneous, or even
“universally condemned,” and an omission or incomplete instruction is less likely
to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S.
145, 154-155 (1977). The challenged instruction must not judged in isolation but
must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due
process violation. Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not
enough that there might be some “slight possibility” that the jury misapplied the
instruction. Id. at 191.
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Petitioner first claims that the judge should have sua sponte instructed the
jurors on the defense theory of the case.
“The failure to give a defense-theory instruction that is supported by the
evidence does not automatically entitle a petitioner to habeas relief; the failure to
instruct must have rendered the petitioner’s trial fundamentally unfair.” Aldrich v.
Bock, 327 F. Supp. 2d 743, 765 (E.D. Mich. 2004). Defense counsel argued
petitioner’s defense theory to the jury in his closing argument. (Tr. 2/26/03, pp.
52-57). The judge instructed the jurors that the prosecutor had to prove
petitioner guilty beyond a reasonable doubt and instructed them on the elements
of the crime of extortion, (Id., pp. 63-64; 72-74). In light of defense counsel’s
closing argument and the judge’s instructions, the failure to instruct the jurors on
the defense’s theory did not deprive petitioner of a fair trial so as to entitle him to
habeas relief. Id. at 765-66.
Petitioner next contends that although the judge instructed the jurors that
no act but a threat was required to establish the crime of extortion, the judge
failed to define the term “threat.”
The Sixth Circuit held that “[a] trial court ‘need not define familiar English
words when the jury can appreciate their meaning without special knowledge.’”
U.S. v. Lentsch, 369 F. 3d 948, 954 (6th Cir. 2004)(quoting U.S. v. Mack, 159 F.
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3d 208, 218 (6th Cir. 1998)). Here, the term “threat” involves a familiar English
word that the jury could understand without special knowledge or instruction.
Petitioner next claims that the judge failed to read back the testimony of
several witnesses.
There is no federal constitutional law which requires that a jury be
provided with a witness’ testimony. See Bradley v. Birkett, 192 Fed. Appx. 468,
477 (6th Cir. 2006). The reason for this is that there is no U.S. Supreme Court
decision that requires judges to re-read testimony of witnesses or to provide
transcripts of their testimony to jurors upon their request. See Friday v. Straub,
175 F. Supp. 2d 933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim that a
state trial court violated his right to a fair trial by refusing to grant a jury request
for transcripts is therefore not cognizable in a habeas proceeding. Bradley, 192
Fed. Appx. at 477; Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D. Mich. 1985).
Given the lack of holdings by the Supreme Court on the issue of whether a state
trial judge is required to re-read the testimony of witnesses or provide transcripts
of their testimony to jurors upon their request, the Michigan Court of Appeals’
rejection of petitioner’s claim was not an unreasonable application of clearly
established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008).
Petitioner next claims that the judge erred in failing to place on the record
the supplemental instructions that she gave to the jurors concerning the
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elements of the offenses. The Michigan Court of Appeals rejected the claim, on
the ground that the judge provided the jurors with written copies of the
instructions. People v. Nali, 2005 WL 3556110, * 4 (Mich.Ct.App. December 29,
2005).
A trial judge’s decision to allow the jury to have written instructions is one
within the trial court’s discretion. United States v. Blane, 375 F.2d 249, 255 (6th
Cir.1967); see also Warner v. Zent, 997 F. 2d 116, 131 (6th Cir. 1993)(trial court
did not commit prejudicial error providing written instructions to the jury); United
States v. Henry, 878 F. 2d 937, 940 (6th Cir. 1989); overruled on other grounds
by Bailey v. United States, 516 U.S. 137 (1995)(trial court did not err in providing
the jury with written instructions relating only to substantive counts rather than
the full set of instructions after the court had conducted a colloquy with the jury
foreman). “Under federal law, a trial court judge is not required to orally present
all of the jury instructions to jurors; nor is a trial court judge prohibited from
providing written instructions to the jury.” Shaw v. Bell, No. 2:06–CV–14506;
2009 WL 1508170, * 9 (E.D.Mich. May 29, 2009). Petitioner does not claim that
the written instructions were defective. Because there is no clearly established
law requiring that oral instructions be given to the jury, petitioner is not entitled to
habeas relief on his claim. Id.
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D. Claim # 6. The challenge to the constitutionality of the extortion
statute.
Petitioner next contends that Michigan’s extortion statute is
unconstitutionally vague.
The Michigan Court of Appeals rejected petitioner’s claim:
Defendant’s contention, that the extortion statute is unconstitutionally
vague, was rejected by this Court. Hubbard, supra at 483-486.
Further, contrary to what defendant argues, the statute does not
impermissibly impinge on First Amendment freedom of expression. A
law directed at expressive conduct is constitutional if it furthers an
important or substantial government interest that is unrelated to free
expression and the incidental restriction on First Amendment rights is
no greater than is essential to further that interest. United States v.
O'Brien, 391 U.S. 367, 377; 88 S Ct 1673; 20 L. Ed. 2d 672 (1968).
The extortion statute is aimed at preventing coercion, which is a
legitimate government interest unrelated to free expression. For these
reasons, we reject this claim of error.
Nali, Slip. Op. at * 4.
Under the Federal Constitution, “a criminal statute must give fair warning
of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U.S. 347,
350 (1964) The Supreme Court has indicated that “[t]he void-for-vagueness
doctrine requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983). “[I]t is a basic principle of due
process that an enactment is void for vagueness if its prohibitions are not clearly
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defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A law thus fails
to comport with the Due Process Clause of the federal constitution “if it is so
vague and standardless that it leaves the public uncertain as to the conduct it
prohibits....” Giaccio v. Pennsylvania, 382 U.S. 399, 402–03 (1966). Indeed, the
purpose of the Due Process Clause’s fair notice requirement is to enable an
ordinary citizen to conform his or her conduct to the law, because “[N]o one may
be required at peril of life, liberty or property to speculate as to the meaning of
penal statutes.” City of Chicago v. Morales, 527 U.S. 41, 58 (1999)(quoting
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). The problem with a vague
law or statute is that it “impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.” Grayned,
408 U.S. at 108-09.
First Amendment overbreadth challenges to state statutes are also
reviewable in a petition for writ of habeas corpus. See Staley v. Jones, 239 F.3d
769, 781 (6th Cir. 2001). In evaluating a facial challenge to a state law, however,
a federal court, must consider any limiting construction that a state court or
enforcement agency has proffered. Id. at 782. The overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep where conduct and not merely speech is involved.
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Broadrick v Oklahoma, 413 U.S. 601, 614-15 (1973). Thus, “overbreadth
scrutiny diminishes as the behavior regulated by the statute moves from pure
speech toward harmful, unprotected conduct.” Staley, 239 F.3d at 785.
Moreover, the overbreadth doctrine “has been employed by the [Supreme] Court
sparingly and only as a last resort.” Id. at 787. The Supreme Court has also
indicated that facial challenges to criminal statutes on overbreadth grounds are
discouraged, because “they invite judgments on fact-poor records,” and also
“call for relaxing familiar requirements of standing.” Sabri v. United States, 541
U.S. 600, 609 (2004). Finally, “whatever overbreadth exists can be cured on a
case-by-case basis.” Staley, 239 F.3d at 787.
Michigan’s extortion statute states, in pertinent part:
Any person who shall, either orally or by a written or printed
communication, maliciously threaten to accuse another of any crime
or offense, or shall orally or by any written or printed communication
maliciously threaten any injury to the person or property or mother,
father, husband, wife or child of another with intent thereby to extort
money or any pecuniary advantage whatever, or with intent to compel
the person so threatened to do or refrain from doing any act against
his will, shall be guilty of a felony...
M.C.L.A. 750.213.
The Michigan Supreme Court recently held that Michigan’s extortion
statute is not unconstitutionally vague because the clear language of the statute
prohibits a person from maliciously threatening to injure another person with the
intent to compel that person to do any act against his will. People v. Harris, 495
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Mich. 120, 140, 845 N.W. 2d 477 (2014). The Michigan Supreme Court
conclued that the Michigan Legislature’s “inclusion of a malice requirement
provides law enforcement, judges, and juries with an explicit standard for
applying MCL 750.213.” Id. at 135-36. The Michigan Supreme Court further
concluded that the inclusion of a scienter requirement in the extortion statute,
namely, that the defendant “maliciously” threaten another, mitigated the statute’s
vagueness. Id. at 138.
In United States v. Coss, 677 F. 3d 278 (6th Cir. 2012), the Sixth Circuit
rejected a similar vagueness challenge to the federal extortion statute, 18 U.S.C.
§ 875(d). The Sixth Circuit concluded that the statute was not vague or
overbroad because the statute criminalized, in a “in a clear and precise manner,
extortionate threats, which are true threats, and therefore not protected speech.”
Id. at 289. The Sixth Circuit further concluded that “[E]xtortion, like robbery or
murder, refers to criminal conduct that has a commonly understood meaning
providing ample notice of the conduct falling within its ambit, limiting the potential
for abuse in enforcement, and ensuring that protected First Amendment speech
is not within its reach.” Id. The Sixth Circuit reasoned that § 875(d)’s
requirement that the threat be wrongful and done with the specific intent to extort
circumscribed the reach of the statute and prevented it from being
unconstitutionally vague or overbroad. Id. at 289-90.
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Michigan’s extortion statute likewise is not unconstitutionally vague or
overbroad. The statute requires that a defendant maliciously threaten to accuse
another of any crime or offense, or threaten any injury to the person or property
or mother, father, husband, wife or child of another with intent to extort money or
any pecuniary advantage or with the intent to compel the person who is
threatened to do or refrain from doing any act against his or her will. The
requirement of malicious intent is sufficient to circumscribe the reach of
Michigan’s extortion statute to prevent it from being overbroad. Moreover, the
term extortion refers to conduct that has a “commonly understood meaning” that
would put petitioner on notice that his conduct is criminal. Lastly, because
extortionate threats are not protected by the First Amendment, Michigan’s
extortion statute does not impinge on petitioner’s First Amendment freedoms.
Petitioner is not entitled to relief on his sixth claim.
E. Claim # 7. The judicial misconduct claim.
Petitioner next contends that he was deprived of a fair trial because of
judicial misconduct.
The right to an impartial judge is a right whose deprivation a state prisoner
may complain of in a federal habeas corpus proceeding. Tyson v. Trigg, 50 F. 3d
436, 438 (7th Cir. 1995)(citing to Turner v. Ohio, 273 U.S. 510, 523 (1927); In Re
Murchison, 349 U.S. 133 (1955)). Trial judges have a wide latitude in
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conducting trials, but they must preserve an attitude of impartiality and
scrupulously avoid giving the jury the impression that the judge believes that the
defendant is guilty. Harrington v. State of Iowa, 109 F. 3d 1275, 1280 (8th Cir.
1997); Brown v. Palmer, 358 F. Supp. 2d 648, 657 (E.D. Mich. 2005).
However, in reviewing an allegation of judicial misconduct in a habeas
corpus petition, a federal court must ask itself whether the state trial judge’s
behavior rendered the trial so fundamentally unfair as to violate federal due
process. Duckett v. Godinez, 67 F. 3d 734, 740 (9th Cir. 1995); Brown v. Palmer,
358 F. Supp. 2d at 657. To sustain an allegation of bias by a state trial judge as
a grounds for habeas relief, a habeas petitioner must factually demonstrate that
during the trial the judge assumed an attitude which went further than an
expression of his or her personal opinion and impressed the jury as being more
than an impartial observer. Brinlee v. Crisp, 608 F. 2d 839, 852-53 (10th Cir.
1979); Brown, 358 F. Supp. 2d at 657. A trial judge’s intervention in the conduct
of a criminal trial would have to reach a significant extent and be adverse to the
defendant to a significant degree before habeas relief could be granted. McBee
v. Grant, 763 F. 2d 811, 818 (6th Cir. 1985); Brown, 358 F. Supp. 2d at 657.
Petitioner first contends that the judge committed misconduct at the
beginning of trial by giving her personal card to the jurors and informing them
that they should call her if there were any delays in the case. Petitioner argues
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Nali v. Phillips, 2:07-CV-15487
that the judge should have informed the jurors to call the court clerk instead of
the judge if there were any delays.
Petitioner is not entitled to relief on this portion of his claim because there
is nothing to suggest that the judge’s giving of her card to the jurors and to call
her if there were delays in the case demonstrated any bias against petitioner or
suggested that she had an opinion as to petitioner’s guilt.
Petitioner next contends that the judge committed misconduct when she
informed petitioner, in response to his request to represent himself, that it would
not look good for him to do so and further informed petitioner that she would not
allow him to recall the complainant if he chose to represent himself. Petitioner
further contends that the judge coerced him into giving up his right to represent
himself. Petitioner further claims that the judge committed misconduct by
permitting the prosecutor to submit written instructions on the elements of
extortion to the jurors. Lastly, petitioner points to comments made by the judge
at sentencing, in which she referenced negatively to petitioner’s economic status
and subsequently exceeded the sentencing guidelines range.
Adverse rulings are not themselves sufficient to establish bias or prejudice
which will disqualify a judge. Vliet v. Renico, 193 F. Supp. 2d 1010, 1016 (E.D.
Mich. 2002); Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999). Most
of the judge’s comments dealt with warning petitioner about the dangers of self-
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Nali v. Phillips, 2:07-CV-15487
representation. Moreover, the giving of an excessive sentence in and of itself
does not establish judicial bias. See Liteky v. U.S., 510 U.S. 540, 542, 556
(1994). Petitioner is not entitled to habeas relief on his seventh claim.
F. Claim # 8. The parole denial claim.
Petitioner lastly claims that he was wrongly denied parole. Petitioner’s
claim is moot, because he has been released on parole. Petitioner’s release on
parole renders his final claim moot, because there is no longer a case or
controversy to litigate. See Townsend v. Vasbinder, 365 Fed. Appx. 657, 660 (6th
Cir. 2010); Mannino v. Gluch, 891 F. 2d 291; No. 1989 WL 145909, * 1 (6th Cir.
December 4, 1989).
G. The Court denies petitioner’s requests for oral argument, an
evidentiary hearing, and discovery.
In his reply brief, petitioner requests oral argument, an evidentiary hearing,
and discovery.
A federal district court can grant oral argument in a habeas case where it
would assist in resolving the matters raised in the habeas petition. See e.g.
Haskell v. Berghuis, 695 F. Supp. 2d 574, 584 (E.D. Mich. 2010). In light of the
fact that this Court has determined from the pleadings that petitioner is not
entitled to habeas relief, the Court will deny the motion for oral argument. See
Lovely v. Jackson, 337 F. Supp. 2d 969, 978 (E.D. Mich. 2004).
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A habeas petitioner is not entitled to an evidentiary hearing on his claims if
they lack merit. See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir. 2001). In
light of the fact that petitioner’s remaining claims are devoid of merit, he is not
entitled to an evidentiary hearing on these claims. In light of the fact that
petitioner’s claims are without merit, petitioner is not entitled to seek discovery in
support of his claims. See Sellers v. U.S., 316 F. Supp. 2d 516, 523 (E.D. Mich.
2004).
H. A certificate of appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in
order to appeal the denial of a habeas petition for relief from either a state or
federal conviction. 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA
“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 federal district court rejects
a habeas claim on the merits, the substantial showing threshold is met if the
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 this standard, a district court may not conduct a full
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Nali v. Phillips, 2:07-CV-15487
merits review, but must limit its examination to a threshold inquiry into the
underlying merit of the petitioner's claims. Id. at 336-37.
The Court will deny a certificate of appealability, because jurists of reason
would not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right , a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
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Nali v. Phillips, 2:07-CV-15487
IV. CONCLUSION
For the reasons stated above, this Court concludes that Petitioner Nali is
not entitled to federal-habeas relief on the remaining claims presented in his
petition.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt. # 1).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to appeal
in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 16, 2014
I hereby certify that a copy of the foregoing document was served upon parties/counsel
of record on October 16, 2014, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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