Dunigan v. Washington
Filing
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OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERESA DUNIGAN-SNELL,
Petitioner,
v.
Case Number: 09-cv-11476
Honorable Denise Page Hood
HEIDI WASHINGTON,
Respondent.
______________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This is a habeas case filed by a state prisoner pursuant to 28 U.S.C. § 2254.
Michigan prisoner Teresa Dunigan-Snell (“Petitioner”) is currently incarcerated by the
Michigan Department of Corrections at the Huron Valley Complex–Womens in Ypsilanti,
Michigan. She filed this pro se Habeas Petition challenging her 2007 jury convictions
for second-degree murder and perjury, which occurred in the Kalamazoo County Circuit
in Kalamazoo, Michigan. She was sentenced as a habitual offender, second offense,
and is currently serving concurrent prison terms of thirty-nine to sixty years for the
murder conviction and seven to twenty years for the perjury conviction. In her Habeas
Petition, Petitioner raises claims concerning the effectiveness of trial counsel. She also
claims that, if her murder conviction is reversed, then she is entitled to resentencing on
the perjury conviction. For the reasons stated, the Court denies the Petition. The Court
also declines to issue Petitioner a Certificate of Appealability.
I. BACKGROUND
This case arises because of a house fire which occurred in Kalamazoo,
Michigan, on June 17, 2006, resulting in the death of George McCormack. The
prosecution’s theory was that Petitioner, along with others, had a role in committing the
fire as an aider and abetter. Petitioner claimed she was not involved.
The Michigan Court of Appeals summarized the facts of the case. The recitation
of those facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009); Monroe v. Smith, 197
F.Supp.2d 753, 758 (E.D. Mich. 2001), aff’d 41 F.App’x 730 (6th Cir. 2002). The Court
of Appeals stated:
Defendant’s convictions stem from a house fire in Kalamazoo on
June 17, 2006, which killed one resident and severely injured another
resident. The fire was set by Lonnie Warren (who was convicted of
first-degree murder for his role), with help from various individuals,
including defendant’s son, Marcel Dunigan, and her grandson, Richie
Edmonds. However, according to the prosecution’s theory of the case,
defendant instigated the arson because she wanted to drive the victims,
George McCormack and Deb Jarchow, out of their home and out of the
neighborhood. Defendant’s perjury conviction resulted from false answers
defendant gave during an investigative subpoena proceeding.
People v. Dunigan-Snell, No. 280522, 2008 WL 4684166, at *1 (Mich.Ct.App. Oct. 23,
2008).
Following her sentencing, Petitioner filed a direct appeal with the Court of
Appeals, raising the same claims that form her two habeas claims. On October 23,
2008, the Court of Appeals affirmed her convictions. Dunigan-Snell, 2008 WL 4684166,
at *3. Petitioner then filed an Application for Leave to Appeal that decision with the
Michigan Supreme Court, raising the same claims. On February 24, 2009, the Supreme
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Court denied her Application. People v. Dunigan-Snell, 483 Mich. 896, 760 N.W.2d 473
(2009) (Table).
Petitioner neither filed a Motion for Relief from Judgment with the state trial court
nor a Petition for Writ of Certiorari with the United States Supreme Court. Rather, on
April 20, 2009, she filed this Habeas Petition.
II. STANDARD OF REVIEW
Petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat.
1214 (“AEDPA”), which provide:
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.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ [the United States Supreme Court’s]
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 [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16, 124
S.Ct. 7, 10 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120
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S.Ct. 1495, 1519-20 (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, 123
S.Ct. 2527, 2534-35 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495).
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, 123 S.Ct. at 2535 (citations omitted).
Recently, in Harrington v. Richter, --- U.S. ---, 131 S.Ct. 770, 786-87 (2011), the
United States Supreme Court held:
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. Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). And as this Court
has explained, “[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case
determinations.” Ibid. “[I]t is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal
rule that has not been squarely established by this Court.” Knowles v.
Mirzayance, 556 U.S. ----, ----, 129 S.Ct. 1411, 1413-14, 173 L.Ed.2d 251
(2009) (internal quotation marks omitted).
***
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. Jackson v.
Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
(Stevens, J., concurring in judgment). 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
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in existing law beyond any possibility for fairminded disagreement.
With those standards in mind, the Court proceeds to address Petitioner’s claims.
III. DISCUSSION
A. Petitioner’s Claims
1. Ineffective-Assistance-of-Counsel Claim
In her first habeas claim, Petitioner argues that she was denied the effective
assistance of counsel because trial counsel failed to object to the trial court’s jury
instructions regarding second-degree murder. Specifically, Petitioner objects to the
following two sentences: “First, that the Defendant or someone she helped caused the
death of George McCormack. That is, Mr. McCormack died as a result of injuries
sustained in the alleged arson fire at 18-12 Cameron Street.” Trial Tr. vol. II, 343 June
28, 2007. Respondent argues that this claim lacks merit. The Court agrees.
Claims of ineffective assistance of counsel are governed by the standards set
forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland, an ineffective assistance of counsel claim has two
components. First, Petitioner must show that her counsel’s performance was deficient.
Strickland, 466 U.S. at 687. “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. Second, Petitioner must also show that the deficient performance
prejudiced the defense. Id. In order to establish prejudice, Petitioner must show that
the identified errors were so serious that they deprived her of a fair trial. Id. The burden
is on Petitioner to show that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Id. at
694. A “reasonable probability” is one sufficient to undermine confidence in the
outcome. Id.
When a state court has considered and rejected a claim of ineffective assistance
of counsel on the merits, a federal habeas court must apply a doubly deferential
standard to the question of whether a state-court application of Strickland is
unreasonable for purposes of AEDPA. Harrington, --- U.S. at ---, 131 S.Ct. at 786.
When considering whether habeas relief is appropriate in such a circumstances, the
court must determine “what arguments or theories supported or, [], could have
supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.” Id.
Before the Court addresses Petitioner’s ineffective-assistance-of-counsel claim,
the Court must first decide whether the jury instructions violated Petitioner’s due
process rights.
In order for habeas relief to be warranted on the basis of incorrect jury
instructions, a petitioner must show more than that the instructions are undesirable,
erroneous or universally condemned; rather, taken as a whole, they must be so infirm
that they rendered the entire trial fundamentally unfair. See Estelle v. McGuire, 502
U.S. 62, 72, 112 S.Ct. 475, 482 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147, 94
S.Ct. 396, 400-01 (1973); Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737
(1977); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871
(1974) (“‘[I]t must be established not merely that the instruction is undesirable,
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erroneous, or even “universally condemned,” but that it violated some [constitutional
right]’”)). It is well established that the instruction “may not be judged in artificial
isolation,” but must be considered in the context . If an instruction is ambiguous and not
necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood
that the jury has applied the instruction improperly. See Binder v. Stegall, 198 F.3d 177,
179 (6th Cir. 1999). A jury instruction is not to be judged in artificial isolation, but must
be considered in the context of the instructions as a whole and the trial court record.
See Grant v. Rivers, 920 F.Supp. 769, 784 (E.D. Mich. 1996). State law instructional
errors rarely form the basis for federal habeas corpus relief. Estelle, 502 U.S. at 71-72,
112 S.Ct. at 482.
The jury instruction at issue, when read as a whole, is as follows:
The Defendant is charged with the crime of first degree felony
murder. To prove this charge, the prosecutor must prove each of the
following elements beyond a reasonable doubt.
First, that the Defendant or someone she helped caused the death
of George McCormack. That is, Mr. McCormack died as a result of
injuries sustained in the alleged arson fire at 18-12 Cameron Street.
Second, that the Defendant had one of these three states of mind.
She intended to kill or she intended to do great bodily harm to George
McCormack, or she wantonly or willfully disregarded the likelihood of the
natural tendency of her behavior to cause death or great bodily harm.
Third, that at the time of the act that caused the death of Mr.
McCormack, the Defendant was committing or was helping someone else
commit the crime of arson, burning of a dwelling.
For the crime of arson, burning of a dwelling house, the prosecutor
must prove each of the following elements beyond a reasonable doubt.
First, that the Defendant or somebody she helped burned the
house at 16-12 Cameron Street. The term burn on this case means
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setting fire to or doing anything that results in the starting a fire or helping
[or] persuading somebody else to start a fire. If any part of the structure is
burned, that is all that is necessary to count as burning. The property
does not have to be completely destroyed.
Trial Tr. vol. II, 343-44 June 28, 2007.
The Michigan Court of Appeals, in addressing this issue, also first reviewed the
accuracy of the jury instructions to determine if counsel was ineffective for failing to
object to the instructions. It stated:
The elements of second-degree murder are: (1) a death, (2) the
death was caused by an act of the defendant, (3) the defendant acted with
malice, and (4) the defendant did not have lawful justification or excuse for
causing the death. “Malice” is defined as an act done with either an intent
to kill, an intent to commit great bodily harm, or an intent to create a very
high risk of death or great bodily harm with knowledge that death or great
bodily harm was the probable result. This last state of mind has also been
described as “the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death or
great bodily harm.”
Defendant was charged under an aiding and abetting theory. The
elements of aiding and abetting are: (1) the crime charged was committed
by the defendant or some other person; (2) the defendant performed acts
or gave encouragement which assisted the commission of the crime; and
(3) the defendant intended the commission of the crime or had knowledge
that the principal intended its commission at the time he [or she] gave aid
and encouragement. Aiding and abetting includes all types of assistance
given to a principal and all words or acts that may support the commission
of a crime.
In the instant case, we disagree with defendant’s assessment of the
trial court’s instructions. When read as a whole, these instructions
required the jury to find that the arson caused McCormack’s death, that
defendant helped another commit the arson, and that she acted with
malice, i.e., an intent to kill, to do great bodily harm, or a willful disregard
of the likelihood of death or great bodily harm. Defendant’s contention
that the instructions would have allowed the jury to find her guilty if she
assisted someone other than the arsonist, or with a crime other than the
arson is without merit. The trial court’s use of “someone she helped”
clearly referred to defendant’s alleged role as an aider and abettor to the
arsonist Warren. The trial court’s instructions prior to the second-degree
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murder instruction outlined the crime of arson and discussed aiding and
abetting, and the trial court’s next sentence clarified this point by requiring
the jury to find that McCormack died of injuries sustained in the arson fire.
Thus, because the trial court provided appropriate instructions, counsel’s
decision to not object did not constitute ineffective assistance.
Dunigan-Snell, 2008 WL 4684166, at *1-2 (citations omitted).
This Court concludes that the Court of Appeals’s decision was not contrary to, or
an unreasonable application of, clearly established Supreme Court precedent. The trial
court properly instructed the jury with respect to the elements of second-degree murder.
The sentences at issue reflect the requirement that Petitioner had to assist someone in
causing the victim’s death and that the death was the result of the injuries alleged.
Petitioner’s contention that the instruction allowed the jury to convict without finding that
she aided and abetted the murder is without merit. When read as a whole, the
instructions clearly stated that Petitioner had to have helped commit the crime of
second-degree murder and arson. Any objection to the instructions would have been
futile, and trial counsel cannot be deemed ineffective for failing to raise meritless
objections. See Lewis v. Perry, No. 08-CV-10485, 2011 WL 1140674, at *17 (E.D.
Mich. Feb. 14, 2011) (citing Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir. 1995);
Burnett v. Collins, 982 F.2d 922, 929 (5th Cir. 1993)).
Accordingly, Petitioner has failed to satisfy the “doubly” deferential standard by
which ineffective assistance of counsel claims are measured on habeas review. She is
not entitled to habeas relief on her claim of ineffective assistance of counsel.
2. Sentencing Claim
Petitioner next alleges that if she is successful with her first claim, then she is
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also entitled to be resentenced on her perjury conviction because the sentencing
guidelines calculations for that offense used the murder conviction.
First, this claim is moot because the Court found that trial counsel was not
ineffective with respect to that claim.
Second, this claim is based on state law and cannot form the basis for habeas
relief. Swarthout v. Cooke, --- U.S. ---, 131 S.Ct. 859, 861 (2011) (“federal habeas
corpus relief does not lie for errors of state law.”) (quoting Estelle, 502 U.S. at 67, 112
S.Ct. at 480 (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990));
see also Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir. 2010) (same).
Finally, even if Petitioner were to be successful with her first claim, acquitted
conduct nevertheless provides a sentencing court with “[h]ighly relevant–if not essential
[] information,” and she would not be entitled to habeas relief. See United States v.
Watts, 519 U.S. 148, 151-52 (1997) (citations omitted). The Watts Court held “that a
jury’s verdict of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, [].” Id. at 157.
For those reasons, the Court finds that Petitioner is not entitled to habeas relief
regarding her sentencing claim.
B. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue
or deny a [COA] when it enters a final order adverse to the applicant.” A COA may be
issued “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120
S.Ct. 1595, 1604 (2000) (citation omitted).
In this case, the Court concludes that reasonable jurists would not debate its
conclusion. Therefore, the Court DECLINES to issue Petitioner a COA.
IV. CONCLUSION
The state courts’ rejection of Petitioner’s claims did not result in decisions that
were contrary to Supreme Court precedent, an unreasonable application of Supreme
Court precedent, or an unreasonable determination of the facts. Accordingly, it is
ORDERED that the Petition for Writ of Habeas Corpus [Dkt. # 1] is DENIED.
It is further ORDERED that the Court DECLINES to issue Petitioner a COA.
IT IS SO ORDERED.
S/Denise Page Hood
United States District Judge
Dated: October 31, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 31, 2011, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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