Stanley v. Metrish
Filing
18
OPINION AND ORDER Denying Petition for Writ of Habeas Corpus re 1 and Denying Certificate of Appealability. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNIE STANLEY,
Case Number: 2:08-CV-14237
Petitioner,
HONORABLE DENISE PAGE HOOD
v.
LINDA METRISH,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Michigan state prisoner, Johnnie Stanley, has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at
the Kinross Correctional Facility in Kincheloe, Michigan, challenges his convictions for
conspiracy to possess with intent to deliver a controlled substance, more than 650 grams,
possession of a controlled substance, less than 50 grams, and felony firearm. Respondent
argues that the petition should be denied because the claims are procedurally defaulted
and/or meritless. For the reasons discussed, the Court denies the petition.
I.
Facts
Petitioner’s convictions arise from his involvement in a drug-trafficking operation.
The Michigan Court of Appeals provided a factual overview of the case, which is
presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D.
Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir. 2002), as follows:
Defendant’s convictions arise from allegations that he engaged in a longterm drug trafficking conspiracy with Nathaniel Lee and Roderick Lee of
the purported Lee family organization, and several others. During trial,
several witnesses, including LaMark Northern and Eric Lee,[ ] who is the
nephew of Nathaniel and Roderick, testified extensively concerning their
drug transactions with and involvement in the Lee organization. Several
witnesses, including Northern and Lee, also testified as to defendant’s
receipt (and distribution) of cocaine from members of the Lee family
organization. Also, according to a police witness, in May 1993, defendant
was a passenger in a stolen vehicle stopped by law enforcement officers.
Drug records and cocaine residue were found in the vehicle.
In September 1998, search warrants were executed for numerous homes in
the Pontiac area connected to the Lee family organization. Numerous
individuals purportedly involved in the organization, including defendant,
were subsequently arrested. In the home that defendant occupied, the
police found 15 individually packaged rocks of cocaine next to a stove, one
rock that had fallen by the stove, a scale next to the cocaine, a loaded .22
revolver, plastic baggies and corner ties, $1,000 under a couch, and $300 on
defendant’s person. There was evidence that, during the duration of the
alleged drug trafficking conspiracy, defendant, as well as many of his
alleged coconspirators, were not employed and did not file any tax returns
from 1987 through 1998.
People v. Stanley, No. 245456, slip op. at 1-2 (Mich. Ct. App. Sept. 19, 2006).
II.
Procedural History
Petitioner was convicted by a jury in Oakland County Circuit Court of conspiracy
to deliver or possess with intent to deliver 650 or more grams of a controlled substance,
possession with intent to deliver less than 50 grams of a controlled substance, and
possession of a firearm during the commission of a felony. On November 20, 2002,
Petitioner was sentenced to 30 to 60 years in prison for the conspiracy conviction, one to
20 years for the possession with intent to deliver conviction, and two years for the felonyfirearm conviction.
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He filed an appeal of right in the Michigan Court of Appeals and raised these
claims:
I.
Defendant was denied his right to confrontation when a witness against him
refused to testify, thereby resulting in the witness’s preliminary examination
testimony being read into the record.
II.
The trial court erred when it admitted prior bad acts evidence in violation of
M.R.E. 404(b).
III.
There was insufficient evidence presented to support Defendant’s
conviction of conspiracy to possess with intent to deliver a controlled
substance, more than 650 grams.
IV.
Defendant was denied the effective assistance of counsel when his counsel
failed to seek severance from his co-defendant’s trial.
Petitioner also filed a pro per supplemental brief, raising these claims:
I.
Defendant’s right to due process was violated when the trial court
wrongfully amended the grand jury indictment. Further, the prosecutor
committed misconduct when she amended the indictment.
II.
Defendant is entitled to a remand under M.C.R. 7.216(A)(5) because a
witness recanted his testimony and the prosecutor committed misconduct
when she failed to correct it.
III.
Defendant is entitled to a remand because he was denied a full record for
purposes of his appeal in violation of M.C.R. 7.216(A)(4).
IV.
Defendant is entitled to a remand under M.C.R. 7.216(A)(3) to determine
whether he is entitled to an in-camera hearing and new trial.
V.
Petitioner’s right to due process was violated as a result of a perjured
affidavit that was used to secure a search warrant.
VI.
Defendant is entitled to a Ginther hearing.
The Michigan Court of Appeals affirmed Petitioner’s convictions. People v.
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Stanley, No. 245456 (Mich. Ct. App. Sept. 19, 2006).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
He raised these claims:
I.
Defendant was denied his right to confrontation when a witness against him
refused to testify, thereby resulting in the witness’s preliminary examination
testimony being read into the record.
II.
The trial court erred when it admitted prior bad acts evidence in violation of
MRE 404(b).
III.
There was insufficient evidence presented to support Defendant’s
conviction of conspiracy to possess with intent to deliver a controlled
substance, more than 650 grams.
IV.
Defendant’s right to due process was violated when the trial court
wrongfully amended the grand jury indictment.
V.
The prosecutor committed misconduct when she amended the indictment.
VI.
Defendant is entitled to a remand under MCR 7.216(A)(5) because a
witness recanted his testimony and the prosecutor committed misconduct
when she failed to correct it.
VII.
Defendant is entitled to a remand because he was denied a full record for
purposes of his appeal in violation of MCR 7.216(A)(4).
VIII. Defendant is entitled to a remand under MCR 7.216(A)(3) to determine
whether he is entitled to an in-camera hearing and new trial.
IX.
Petitioner’s right to due process was violated as a result of a perjured
affidavit that was used to secure a search warrant.
X.
Defendant is entitled to a Ginther hearing.
The Michigan Supreme Court denied leave to appeal. People v. Stanley, 477
Mich. 1110 (Apr. 24, 2007).
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Petitioner filed a motion for relief from judgment in the trial court, raising this
claim:
I.
Petitioner’s right to due process was violated when the amended grand jury
indictment was not filed with the trial court pursuant to Mich. Comp. Laws
767.25(3)(4) which resulted in a jurisdictional defect.
The trial court denied the motion for relief from judgment. Petitioner filed
applications for leave to appeal the trial court’s denial of his motion for relief from
judgment in the Michigan Court of Appeals and Michigan Supreme Court. Both state
appellate courts denied leave to appeal. People v. Stanley, No. 292348 (Mich. Ct. App.
Sept. 18, 2009); People v. Stanley, 485 Mich. 1128 (2010).
Petitioner then filed the pending petition for a writ of habeas corpus. He raises
these claims:
I.
Petitioner was denied his right to confrontation when a witness against him
refused to testify, thereby resulting in the witness’s preliminary examination
testimony being read into the record.
II.
The trial court erred when it admitted prior bad acts evidence in violation of
MRE 404(b).
III.
There was insufficient evidence presented to support Petitioner’s conviction
of conspiracy to possess with intent to deliver a controlled substance, more
than 650 grams.
IV.
Petitioner was denied the effective assistance of counsel when his counsel
failed to seek severance from his co-defendant’s trial.
V.
Petitioner’s right to due process was violated when the trial court
wrongfully amended the grand jury indictment.
VI.
Petitioner is entitled to a remand under MCR 7.216 because a witness
recanted his testimony and the prosecutor committed misconduct when she
5
failed to correct it.
VII.
Petitioner is entitled to a remand because he was denied a full record for
purposes of his appeal.
VIII. Petitioner’s right to due process was violated as a result of a perjured
affidavit that was used to secure a search warrant.
IX.
III.
Petitioner’s right to due process was violated when the amended grand jury
indictment was not filed with the trial court pursuant to MCL 767.25(3)(4)
which resulted in a jurisdictional defect.
Standard of Review
28 U.S.C. § 2254(d) provides:
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 proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
6
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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, 562 U.S. __, 131
S. Ct. 770, 789 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“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. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must 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.” Id.
at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
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determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established
law” are to be determined solely by resort to Supreme Court rulings, the decisions of
lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
IV.
Discussion
A.
Procedural Default
Respondent argues that Petitioner’s fourth and ninth claims are procedurally
defaulted. Federal habeas relief is precluded on claims that a petitioner has not presented
to the state courts in accordance with the state’s procedural rules. See Wainwright v.
Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a
petitioner fails to comply with a state procedural rule, the rule is actually relied upon by
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the state courts, and the procedural rule is “adequate and independent.” White v. Mitchell,
431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th
Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained
state court judgment should be used to make this determination. See Ylst v. Nunnemaker,
501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial,
it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
A prisoner seeking federal habeas relief must first exhaust his state court remedies
by fairly presenting the substance of each federal constitutional claim in state court. 28
U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142
F.3d 313, 322 (6th Cir. 1998). State prisoners in Michigan must raise each claim in the
Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal
habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The
petitioner bears the burden of showing that state court remedies have been exhausted.
Prather, 822 F.2d at 1420, n.3. If a petitioner “fails to present his claims to the state
courts and . . . is barred from pursuing relief there, his petition should not be dismissed
for lack of exhaustion because there are simply no remedies available for him to exhaust.”
Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). However, a petitioner will not be
allowed to present unexhausted claims unless he can show cause to excuse his failure to
present the claims in the state courts and actual prejudice to his defense at trial or on
appeal. Id., citing Coleman, 501 U.S. at 750-51.
Petitioner presented his fourth claim, ineffective assistance of trial counsel, to the
9
Michigan Court of Appeals, but failed to raise it in the Michigan Supreme Court. The
claim, therefore, is unexhausted. No state court remedy is available to Petitioner to
exhaust this claim because he already has filed one motion for relief from judgment in the
state trial court and does not argue that his claims fall within the narrow exception to the
prohibition against filing successive motions for relief from judgment in state court.
Petitioner fails to show cause to excuse this default. This claim is procedurally defaulted
and barred from review unless Petitioner can establish that a constitutional error resulted
in a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 321 (1995).
The Supreme Court has tied the miscarriage of justice exception to procedural default to a
petitioner’s innocence. Id. To make a showing of actual innocence, “a petitioner must
show that it is more likely than not that no reasonable juror would have found the
petitioner guilty beyond a reasonable doubt.” Id. at 327. Petitioner fails to present new,
reliable evidence in light of which no reasonable juror would have found him guilty.
Therefore, this claim is procedurally barred.
Respondent also argues that Petitioner’s ninth claim for habeas relief, regarding
the grand jury indictment, is procedurally defaulted. Petitioner raised this claim for the
first time on collateral review in state court. The Michigan Supreme Court denied relief
pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not
grant relief to a defendant if the motion for relief from judgment alleges grounds for relief
which could have been raised on direct appeal, absent a showing of good cause for the
failure to raise such grounds previously and actual prejudice resulting therefrom. See
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Mich. Ct. R. 6.508(D)(3). This form order used by the Michigan Supreme Court to deny
leave to appeal in this case is unexplained because its citation to Michigan Court Rule
6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the
merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must “look through” the unexplained order of
the Michigan Supreme Court to the state trial court’s decision to determine the basis for
the denial of state post-conviction relief.
The state trial court clearly denied relief on procedural grounds. The trial court
cited Michigan Court Rule 6.508(D)(3) and concluded that Petitioner could not establish
cause and prejudice because his underlying claim lacked merit and that he had not shown
that a miscarriage of justice had occurred. Accordingly, this claim is procedurally
defaulted, unless Petitioner can satisfy the cause and prejudice standard or the miscarriage
of justice exception. Petitioner fails to show cause to excuse his default and, as discussed,
he fails to present new, reliable evidence in light of which no reasonable juror would have
found him guilty. Therefore, this claim is also procedurally barred.
B.
Confrontation Clause
Petitioner argues that his right to confrontation was violated when the trial court
admitted the preliminary examination testimony of Eric Lee. Lee testified at the
preliminary examination, but, at Petitioner’s trial, he exercised his Fifth Amendment
privilege not to testify. The trial court held that Lee was unavailable under Michigan
Rule of Evidence 804(a) and admitted Lee’s preliminary examination testimony. The
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Michigan Court of Appeals rejected Petitioner’s argument, finding that Petitioner had the
opportunity to cross-examine Lee at the preliminary examination and did, in fact, do so,
and that Petitioner’s motive to develop (or discredit) the witness’s testimony at the
preliminary examination was the same as it was a trial. In addition, the state court noted
that Petitioner offered no examples of questions that were not asked at the preliminary
examination which would have been asked at trial.
The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Out-of-court statements that are testimonial are
barred by the Confrontation Clause unless the witness is unavailable and the defendant
had a prior opportunity for cross-examination regardless of whether the trial court finds
the statements to be reliable. Crawford v. Washington, 541 U.S. 36, 68 (2004).
In this case, Eric Lee invoked his Fifth Amendment right not to testify at
Petitioner’s trial and was, therefore, unavailable. Petitioner had an opportunity to crossexamine Lee at the preliminary examination. The Sixth Circuit has recognized “there is
some question whether a preliminary hearing necessarily offers an adequate prior
opportunity for cross-examination for Confrontation Clause purposes.” Al-Timini v.
Jackson, 379 F. App’x 435, 437 (6th Cir. 2010), citing Vasquez v. Jones, 496 F.3d 564,
577 (6th Cir. 2007) (doubting whether “the opportunity to question a witness at a
preliminary examination hearing satisfies the pre-Crawford understanding of the
Confrontation Clause’s guarantee of an opportunity for effective cross-examination”)
12
(internal quotation marks omitted). The Sixth Circuit reasoned that because the purpose
of the preliminary examination is only to determine whether probable cause to proceed to
trial exists, defense counsel may “lack adequate motivation to conduct a thorough crossexamination . . . and may wish to avoid tipping its hand to the prosecution by revealing
the lines of questioning it plans to pursue.” Id. Additionally, a preliminary hearing may
occur too early in the proceedings to be useful to the defense. Id. Nevertheless, the
AEDPA constrains a federal Court to grant habeas relief only if the state court’s decision
is contrary to or an unreasonable application of clearly established Supreme Court
precedent. The Sixth Circuit concluded in Al-Timini that no clearly established Supreme
Court precedent holds that a preliminary examination fails to satisfy the Crawford
standard of an opportunity for effective cross-examination. Id. Therefore, a state court’s
decision that no Confrontation Clause violation occurred where a defendant had an
opportunity for cross-examination at a pre-trial hearing satisfies Crawford’s guarantee
and is not a basis for habeas corpus relief.
C.
Prior Bad Acts
Petitioner argues that the trial court erred in admitting evidence related to other
drug activities not directly linked to the charged conduct. The Michigan Court of
Appeals held that the testimony was properly admitted to show that Petitioner had a
common scheme, system or plan for trafficking illegal drugs. In addition, the court held
that the charged and uncharged conduct were sufficiently similar to make the testimony
relevant to the prosecution’s theory that Petitioner was involved in a long-term drug
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trafficking conspiracy with numerous other individuals to distribute large quantities of
cocaine.
The United States Supreme Court has declined to hold that the admission of
similar “other acts” evidence is so extremely unfair that its admission violates
fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53,
110 S. Ct. 668, 674-75 (1990). Although the Supreme Court has addressed whether prior
acts testimony is permissible under the Federal Rules of Evidence, see Huddleston v.
United States, 485 U.S. 681 (1988), it has not explicitly addressed the issue in
constitutional terms. “There is no clearly established Supreme Court precedent which
holds that a state violates due process by permitting propensity evidence in the form of
other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Consequently, there is no Supreme Court precedent that the state court decisions could be
deemed “contrary to” under 28 U.S.C. § 2254(d)(1). Id. at 513. Petitioner's challenge to
the admission of this evidence, therefore, does not warrant habeas relief.
D.
Sufficiency of the Evidence
Next, Petitioner argues that the evidence presented at trial was insufficient to
support his conviction for conspiracy to possess with intent to deliver a controlled
substance more than 650 grams.
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, review
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of a sufficiency of the evidence challenge must focus on whether “after viewing the
evidence 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, “[t]he
Jackson standard must be applied ‘with explicit reference to the substantive elements of
the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
“Two layers of deference apply to habeas claims challenging evidentiary
sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v.
Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the 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.” Brown, 567 F.3d at 205, (citing Jackson, 443 U.S. at 319). Second, if
the Court were “to conclude that a rational trier of fact could not have found a 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.” Id.
The Michigan Court of Appeals held, in pertinent part:
To support a conviction for conspiracy to deliver a controlled substance, the
prosecution must prove that:
(1) the defendant possessed the specific intent to deliver the statutory
minimum as charged; (2) his coconspirators possessed the specific intent to
deliver the statutory minimum as charged; and (3) the defendant and his
coconspirators possessed the specific intent to combine to deliver the
15
statutory minimum as charged to a third person. . . .
A conspiracy is a voluntary, express or implied mutual agreement or
understanding between two or more persons to commit a criminal act or to
accomplish a legal act by unlawful means. People v. Blume, 443 Mich.
476, 481, 485; 505 N.W.2d 843 (1993); People v. Cotton, 191 Mich. App.
377, 392-393; 478 N.W.2d 681 (1991). For intent to exist, the defendant
must know of the conspiracy, know of the objective of the conspiracy, and
intend to participate cooperatively to further that objective. Blume, supra at
485. Direct proof of a conspiracy is not essential; rather, proof may be
derived from the circumstances, acts, and conduct of the parties, and
inferences may be made because such evidence sheds light on the
coconspirators’ intentions. . . .
Viewed in a light most favorable to the prosecution, the evidence was
sufficient to enable a rational trier of fact to conclude that the elements of
conspiracy were proven beyond a reasonable doubt. The evidence, if
believed, indicated that Roderick and Nathaniel Lee led a drug trafficking
organization, which included defendant, and that defendant knowingly
cooperated with other members of the Lee family organization to further a
drug trafficking scheme to possess and deliver numerous kilograms of
cocaine. There was evidence that defendant was regularly at Roderick’s
house throughout the 1990s, and lived in a house owned by Roderick.
There was evidence that Nathaniel and Roderick received several kilograms
of cocaine, which they distributed to third parties, including defendant. Eric
Lee, an admitted member of the organization, testified that, on several
occasions, defendant advised him that he was supplied by Roderick, and
also indicated that he “sold” for him. Eric also testified to discussing with
defendant how defendant had “messed up” 24 ounces of cocaine that was
related to Roderick. Additional testimony was given that Roderick
indicated to LaMark Northern that he could make more money by fronting
cocaine to defendant rather than selling it to Northern.
Additionally, in May 1993, defendant was in a stolen vehicle with Laws,
and drug records and cocaine residue were found in the vehicle. In
September 1998, the police executed a search warrant at defendant’s
residence and found 16 rocks of cocaine, a scale, drug packaging material, a
fully loaded weapon, and $ 1,300. There was also evidence that defendant
was not employed during the alleged duration of the drug trafficking
conspiracy. In sum, viewed in a light most favorable to the prosecution, the
evidence was sufficient to sustain defendant's conviction of conspiracy to
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deliver or possess with intent to deliver 650 or more grams of a controlled
substance.
Stanley, slip op. at 4-5.
“A reviewing court does not reweigh the evidence or redetermine the credibility of
the witnesses whose demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), (citing Marshall v. Lonberger, 459 U.S.
422, 434 (1983)). “A reviewing court ‘faced with a record of historical facts that supports
conflicting inferences must presume – even if it does not affirmatively appear in the
record – that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.’” McDaniel v. Brown, 558 U.S. 120, __, 130 S. Ct. 665, 673
(2010), (quoting Jackson, 443 U.S. at 326). According the state court’s findings of fact a
presumption of correctness, this Court concludes that the Michigan Court of Appeals’
decision that sufficient evidence was presented for a finding of guilty of conspiracy to
deliver cocaine exceeding 650 grams did not “result[] in a decision that . . . involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Petitioner is not entitled to
federal habeas corpus relief with respect to this claim.
E.
Amendment of the Indictment
Petitioner claims that his right to due process was violated when the trial court
granted the prosecution’s motion to amend the indictment to add the charges of
possession with intent to deliver less than 50 grams of a controlled substance and felony
17
firearm.
The Sixth Amendment guarantees a criminal defendant a right to be clearly
informed of the nature and cause of the charges against him in order that he may prepare a
defense. See Cole v. Arkansas, 333 U.S. 196, 201 (1948). “The due process clause of the
Fourteenth Amendment mandates that whatever charging method the state employs must
give the criminal defendant fair notice of the charges against him to permit adequate
preparation of his defense.” Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988) (quoting
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984)). A complaint or indictment “which
fairly but imperfectly informs the accused of the offense for which he is to be tried does
not give rise to a constitutional issue cognizable in habeas proceedings.” Mira v.
Marshall, 806 F.2d 636, 639 (6th Cir. 1986). Amendments to a state criminal information
are permissible as long as the amendment does not enhance the degree of the crime
charged or unfairly surprise the defendant. Wright v. Lockhart, 854 F.2d 309, 312 (8th
Cir. 1988).
In this case, the indictment provided Petitioner sufficient notice that he was being
charged with the two additional counts. The Michigan Court of Appeals’ decision that
the amendment was proper was not contrary to or an unreasonable application of Supreme
Court precedent. Therefore, Petitioner is not entitled to habeas corpus relief with respect
to this claim.
F.
Alleged Prosecutorial Misconduct and Perjured Testimony
Petitioner next claims that he is entitled to a remand pursuant to Michigan Court
18
Rule 7.216 because witness Eric Lee recanted his testimony and the prosecutor committed
misconduct in presenting perjured testimony from Eric Lee and LaMark Northern.
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. “Errors in
the application of state law, especially rulings regarding the admission or exclusion of
evidence, are usually not to be questioned in a federal habeas corpus proceeding.”
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000). A claim for relief under Michigan
Court Rule 7.216 is not cognizable on federal habeas review.
Petitioner also claims that the prosecutor committed misconduct by presenting
false testimony from two prosecution witnesses: Eric Lee and LaMark Northern.
Petitioner argues that these witnesses presented inconsistent testimony before the Oakland
County grand jury and before a federal grand jury.
“Prosecutorial misconduct may warrant habeas relief only if the relevant
misstatements were so egregious as to render the entire trial fundamentally unfair to a
degree tantamount to a due process deprivation.” Caldwell v. Russell, 181 F.3d 731, 736
(6th Cir. 1999). The determination whether the trial was fundamentally unfair is “made
by evaluating the totality of the circumstances.” Angel v. Overberg, 682 F.2d 605 (6th
Cir. 1982). The Court must examine “
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