Hill v. Ludwick

Filing 21

OPINION and ORDER denying the Petition for Writ of Habeas Corpus, denying a Certificate of Appealability, but granting leave to proceed In Forma Pauperis on appeal. Signed by District Judge Victoria A. Roberts. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDREW LEE-LEO HILL,
Petitioner,
CASE NO. 2:09-cv-11748
HONORABLE VICTORIA A. ROBERTS

v.
NICK LUDWICK,
Respondent.
____________________________________/

OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Andrew Lee-Leo Hill filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The pleading challenges Petitioner’s conviction for larceny by
conversion. Petitioner alleges that: (1) the trial court’s response to the jurors’ question about an
element of the offense was tantamount to a directed verdict; (2) the trial court illegally obtained
subject matter jurisdiction; and (3) his rights were violated by the absence of an enacting clause
on the face of the statute that he was charged with violating. The second and third claims are not
cognizable on habeas review, and the state court’s adjudication of Petitioner’s first claim was not
contrary to, or an unreasonable application of, clearly established federal law. Accordingly, the
Petition is denied.
I. BACKGROUND
The Prosecutor initially charged Petitioner with unlawfully driving away an automobile.
After the preliminary examination, the state district court bound Petitioner over to circuit court

on charges of false pretenses and larceny by conversion. The prosecutor then chose to proceed
only on the larceny-by-conversion charge.
The charge arose from an incident that occurred on October 27, 2006, when Petitioner
went to a car dealership in Wyoming, Michigan. He took a vehicle for a test drive and left the
vehicle that he had been driving on the lot. Petitioner did not return the dealership vehicle, and
the vehicle that he left on the lot was picked up later that night. A few days later, a police officer
saw the vehicle that Petitioner took for the test drive; it moved very slowly through an alley.
The officer, suspicious of the vehicle, checked the license plate on his computer and determined
that it had been reported stolen. The officer apprehended Petitioner; he admitted he had took the
vehicle from the dealership.
On March 28, 2007 a Kent County Circuit Court jury convicted Petitioner of larceny by
conversion, MICH. COMP. LAWS § 750.362. Judge Mark A. Trusock sentenced him as a habitual
offender, fourth offense, to prison for four to twenty years. Judge Trusock also ordered
Petitioner to pay $600 in attorney fees.
Petitioner appealed as of right to the Michigan Court of Appeals, which affirmed his
conviction, but vacated the portion of the judgment of sentence that ordered reimbursement of
attorney fees and remanded the case for a determination of Petitioner’s ability to pay restitution.
See People v. Hill, No. 278239 (Mich. Ct. App. Oct. 16, 2008). The Michigan Supreme Court
denied leave to appeal on February 24, 2009. See People v. Hill, 483 Mich. 895 (2009) (table).
On May 6, 2009, Petitioner filed his Petition for Writ of Habeas Corpus in this Court.
The issues are:
I.

Was the trial judge’s answer to the jury’s question regarding the
definition of “permanently deprive,” equivalent to a directed
2

verdict, such that Petitioner’s right to a fair trial was violated?
II.

Did the state court illegally obtain subject matter jurisdiction as a
result of a complaint that did not comply with state law
requirements?

III.

Were Petitioner’s rights violated by the absence of an enacting
clause on the face of the statute, as required by the Michigan
Constitution?

II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a federal
court’s habeas corpus review of a state court decision. Harrington v. Richter, __ U.S. __, __,
131 S. Ct. 770, 783 (2011). The AEDPA amended 28 U.S.C. § 2254(d), which now provides:
(d) 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.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that a state court
decision 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 decides a
case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Id.
at 413. The Williams Court held that a state court decision will be deemed an “unreasonable
application” of clearly established federal law “if the state court identifies the correct governing

3

legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to
the facts of a prisoner’s case.” Id.
“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. at 786. To obtain a writ of habeas corpus from a federal court,
a petitioner must show that the state court’s decision “was so lacking in justification” that it
resulted in “an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 786-87.
III. DISCUSSION
A. The Supplemental Jury Instruction on Larceny by Conversion
Petitioner claims that the trial court’s response to the jury’s question regarding the intent
element of the charged offense was tantamount to a directed verdict.
In its charge to the jury, the trial court explained that, the prosecutor had to prove that the
defendant intended to defraud or cheat the owner out of property permanently. (Tr. Mar. 28,
2007, at 169.) Later, the jurors asked for clarification of the meaning of “permanently.” The
trial court gave a supplemental jury instruction in response to the jurors’ question. Petitioner
argues that the examples provided by the trial court in its supplemental instruction allowed the
jury to presume that he intended to permanently deprive the dealership of the vehicle he took.
Petitioner also argues that the trial court’s instruction removed the prosecutor’s burden to prove
a necessary element of the charge.
The Michigan Court of Appeals rejected Petitioner’s contention that the examples
provided by the trial court deprived the jury of the ability to evaluate the evidence as the finder

4

of fact. The Court of Appeals stated that, “[a]lthough the court’s examples were rather unartful,
the instructions as a whole adequately and fairly presented the issues, and sufficiently protected
the defendant’s rights.” Hill, Mich. Ct. App. No. 278239, at 2-3.
The Court agrees that the disputed instruction did not relieve the prosecutor of its burden
to prove each element of the crime beyond a reasonable doubt. Therefore, the jury instruction
did not violate Petitioner’s right to due process under the Fourteenth Amendment to the United
States Constitution.
1. Clearly Established Federal Law
“[T]he Due Process Clause [of the Fourteenth Amendment] 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). “To warrant habeas
relief because of incorrect jury instructions, Petitioner must show that the instructions, as a
whole, were so infirm that they rendered the entire trial fundamentally unfair.” Murr v. United
States, 200 F.3d 895, 906 (6th Cir. 2000) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)).
The Supreme Court defined “the category of infractions that violate ‘fundamental fairness’ very
narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).
Before a federal court may overturn a state court conviction because of a jury instruction,
“[i]t must be established not merely that the instruction is undesirable, erroneous, or even
‘universally condemned,’ but that it violated some right which was guaranteed to the defendant
by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). “[A] single
instruction to a jury may not be judged in artificial isolation, but must be viewed in the context
of the overall charge.” Id. at 146-47.

5

A trial court may not give a jury instruction that shifts the burden of proving a critical
fact in dispute to the defendant. Mullaney v. Wilbur, 421 U.S. 684, 701 (1975). A mandatory
inference or presumption is problematic because it can affect “not only the strength of the ‘no
reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they
must find the elemental fact upon proof of the basic fact, at least unless the defendant has come
forward with some evidence to rebut the presumed connection between the two facts.” County
Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157 (1979) (emphasis in original).
Permissive inferences, as opposed to mandatory inferences, are not problematic, Coe v. Bell, 161
F.3d 320, 332 (6th Cir. 1998), and do not violate due process, because they allow – but do not
require – “the trier of fact to infer the elemental fact from proof by the prosecutor of the basic
one” and they place “no burden of any kind on the defendant.” Ulster County v. New York, 442
U.S. at 157.
2. Application
To prove a larceny by conversion under Mich. Comp. Laws § 750.362, the prosecutor
must establish that the defendant intended to permanently defraud or cheat the owner of
property. People v. Scott, 72 Mich. App. 16, 19 (1976). Whether Petitioner intended to
permanently deprive the owner of the vehicle was the main issue at trial.
The jury sought clarification of the term “permanently” during its deliberations. To assist
the jury with its understanding, the judge gave this instruction:
In defining the word, “permanent” that’s not a special term that has any huge
legal connotations. You should use your own common sense, your own
experience. You should look at the totality of the circumstances, put your – I
would suggest you put yourself in both – both sides of the place. If someone
takes a car without permission, if that’s the situation, do you think that that person
intends to give it back? On the other side, if you take a car without permission, is
6

it generally your intent to give it back? So just look at the totality of the
circumstances, use your collective intelligence and determine whether or not you
feel the word “permanent” applies based on the instruction that we’ve given you.
(Tr. Mar. 28, 2007, at 175).
Petitioner promptly objected to this instruction. He argued that the jurors sought only a
definition of the word “permanent” and that the court should have instructed the jury on the
ordinary and general understanding of the word “permanent” without providing any examples.
The trial court did not modify its supplemental instruction, but merely took note of Petitioner’s
objection to the instruction. The jury returned a verdict of “guilty” about seventy-five minutes
later.
This Court finds that the trial judge’s supplemental instruction did not amount to a
mandatory presumption and did not violate Petitioner’s right to due process. The supplemental
instruction allowed the jurors to base their verdict on their own understanding of the term
“permanent” and on their own view of the evidence presented at trial. In fact, the trial court
specifically charged the jurors to use their own common sense and experience. The court did not
inform the jurors that they had to presume an intent to permanently deprive the owner of
property.
The trial court’s language was permissive, not mandatory; it encouraged the jurors to
evaluate the facts presented at trial, to use their collective intelligence, and to determine from the
totality of the circumstances whether Petitioner meant to permanently deprive the owner of the
vehicle. In giving the jury two factual scenarios to consider, the judge assisted the jurors with
their deliberations by providing clarification on how they should evaluate the intent element of
the charged offense. There was no mandatory inference. Instead, the court suggested to the

7

jurors that they consider what they or someone else might intend if a vehicle was taken without
permission.
Nor did the trial court direct a verdict or offer an opinion as to what the jurors’ verdict
should be. In instructions, the trial court informed the jury that the court’s instructions were not
evidence and that the jury’s duty was to decide the facts. The trial court also explained that the
prosecutor had the burden to prove each element of the offense, that the defendant was not
required to do anything, and that the jurors should find Petitioner not guilty if they found that the
prosecutor did not prove each element of the crime beyond a reasonable doubt. (Id. at 163-64,
and 168). The supplemental jury instruction did not conflict with these principles.
In conclusion, the jury instructions, taken as a whole, did not remove the burden of proof
from the prosecution, nor render the trial “fundamentally unfair.” Because there was no
violation of due process under federal law, Petitioner has no right to relief.
B. Requirements of the Complaint under State Law
Petitioner next challenges his conviction on the ground that the state court lacked subject
matter jurisdiction because the complaint was invalid. Though his Memorandum of Law is
somewhat unclear, the Court understands Petitioner to allege that the complaint filed by the
prosecutor did not comply with either MICH. CT. R. 6.101(B) or MICH. COMP. LAWS § 764.1a(1)
and, therefore, his conviction should be reversed.
Under Rule 6.101(B), a complaint “must be signed and sworn to before a judicial officer
or court clerk,” and under MICH. COMP. LAWS § 764.1a(1), a complaint must “be sworn to before
a magistrate or clerk.” The contention that these provisions of law were violated lacks merit
because “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497

8

U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. at 68 (citing 28 U.S.C. § 2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975)
(per curiam)).
Although Petitioner alleges in a conclusory statement that his Fourteenth Amendment
right to due process was violated, the real basis for his claim is that the state court lacked
jurisdiction because the requirements of Michigan law were not met. Since this issue involves
solely a matter of state law, and “it is only noncompliance with federal law that renders a State’s
criminal judgment susceptible to collateral attack in the federal courts.” Wilson v. Corcoran, __
U.S. __, __, 131 S. Ct. 13, 16 (2010), the Court cannot grant relief to Petitioner.
C. State Constitutional Requirements for Legislation
Finally, Petitioner challenges the validity of the state penal code sections under which he
was charged. Specifically, Petitioner alleges that the sections are void because they lacked an
enacting clause, as required by state law. See MICH. CONST. 1963, art. 4, § 23 (“The style of the
laws shall be: The People of the State of Michigan Enact.”); see also People v. Dettenthaler, 118
Mich. 595 (1898) (invalidating a state law that was passed without an enacting clause).
The Michigan Court of Appeals responded to Petitioner’s allegation by asserting that the
statutes in question did conform to the state’s constitutional requirements. The Court of Appeals
noted that the statutes were part of the Michigan Penal Code, MICH COMP. LAWS 750, et seq.,
which contains an enacting clause at the beginning of the chapter. The Court of Appeals
concluded that the charge filed against Petitioner’s was valid, inasmuch as the enacting statute
under which he was charged was valid.

9

“[W]hether the statutes of a legislature of a State have been duly enacted in accordance
with the requirements of the constitution of such state, is not a federal question, and the decision
of state courts as to what are the laws of the state is binding upon the courts of the United
States.” Leeper v. Texas, 139 U.S. 462, 467 (1891). Stated differently, “[w]hether certain
statutes have or have not binding force . . . is for the state to determine, and that determination in
itself involves no infraction of the constitution of the United States, and raises no federal
question giving the courts of the United States jurisdiction.” In re Duncan, 139 U.S. 449, 462
(1891).
Because Petitioner does not point to any federal constitutional provision or federal court
decision requiring states to adopt a specific form for legislation, his claim is not cognizable on
habeas corpus review.
IV. CONCLUSION
The jury instruction did not unconstitutionally shift the burden of proof from the State to
Petitioner, and Petitioner’s other claims are issues of state law which are not cognizable on
habeas review. The state appellate court’s decision was not: (1) contrary to federal law; (2) an
unreasonable application of clearly established federal law; or (3) an unreasonable application of
the facts. The Petition for a Writ of Habeas Corpus is DENIED.
The Court declines to issue a certificate of appealability. Reasonable jurists would not
debate whether the issues should have been resolved differently or whether the claims deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Nevertheless, if Petitioner chooses to appeal this Court’s decision, he may proceed in forma
pauperis on appeal because he was permitted to proceed in forma pauperis in the District Court.

10

FED. R. APP. P. 24(a)(3).
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 3, 2011
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Andrew Lee-Leo Hill by electronic means or
U.S. Mail on November 3, 2011.
S/Linda Vertriest
Deputy Clerk

11