Greene v. Bell

Filing 7

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LONNIE GREENE,
Petitioner,
Civil Action Number: 2:10-cv-14697
Honorable Lawrence P. Zatkoff

v.
THOMAS K. BELL,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. INTRODUCTION
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Michigan
prisoner Lonnie Greene (“Petitioner”), currently incarcerated by the Michigan Department
of Corrections at the Gus Harrison Correctional Facility in Adrian, Michigan, filed this pro
se Habeas Petition challenging his conviction for possession with intent to deliver more than
forty-five kilograms of marijuana, following a jury trial in the Circuit Court in Jackson
County, Michigan. Petitioner was convicted on March 28, 2007. Upon resentencing, he was
resentenced to seventy-one months to fifteen years in prison. In his pleadings, he raises
claims concerning the effectiveness of trial counsel and whether the evidence was sufficient
to support his conviction. For the reasons discussed below, the Court will deny the Petition.
The Court also will decline to issue Petitioner a Certificate of Appealability.

II. BACKGROUND FACTS
Petitioner’s troubles in this case arise because of the discovery of marijuana during
a routine search of the back of a large rental truck that he was driving when he was stopped,
by a Michigan State Police Officer, for a traffic violation and ordered to drive to a nearby
weigh station. Petitioner, who had his Bible with him, told the officer that he had been
talking scripture with his passenger. He also said that he was transporting furniture from
Arizona to Detroit. However, he was unable to tell the police officer where the furniture was
to be delivered. After the officer conducted a routine LEIN check, it was discovered that
Petitioner was wanted on a Texas warrant. The officer then handcuffed Petitioner. Petitioner
then gave the officer permission to search the truck he was driving, but he was unable to
provide the officer with a key to the padlock on the rear compartment of the truck. After
forcing the lock open and deploying a drug-sniffing dog, the search revealed large quantities
of marijuana, worth approximately $330,000. The prosecution’s theory of the case was that
Petitioner knowingly possessed the marijuana with the intent to deliver it. The defense’s
theory was that he did not possess the marijuana in question.
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). They
are as follows:
A Michigan State Police officer testified that on the morning of May 1,
2006, he observed a large rental truck traveling over the speed limit on I-94,
and then further observed that its license plate was made of cardboard. The
officer affected a traffic stop and spoke to defendant, who was driving, and
there was also a passenger. According to the officer, defendant, who had a

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Bible in his hand, immediately stated that he had been discussing scripture
with his passenger, which the officer recognized as a tactic typical of persons
hiding contraband. The officer continued that defendant’s driver’s license was
from Texas, which he recognized as a “source state” for narcotics. Defendant
stated that he was transporting furniture for a friend from Arizona to Detroit,
but could provide neither the putative destination address nor the phone
number of the putative contact. The rental agreement listed two approved
drivers, neither of whom was defendant or his passenger. The officer
described defendant as showing great nervousness. A routine check revealed
that defendant was wanted on a Texas warrant. The officer testified that he
handcuffed defendant to a wall, that defendant stated that he was responsible
for the contents of the truck, and that defendant provided permission to search
the truck. However, defendant had no key to open the padlock securing the
contents. Upon forcing the lock, and later deploying a drug-sniffing dog, the
police discovered large quantities of marijuana.
People v. Greene, No. 278834, 2009 WL 1262861, at *1 (Mich. Ct. App. May 7, 2009).
The Court also finds the following testimony pertinent to the case.
Petitioner testified. He did not dispute that he had been driving the truck in which the
marijuana was found or that his name did not appear on the rental agreement. Rather, he
testified that, after meeting a woman in a bar in Detroit, he agreed to help her move a load
of furniture from Arizona to Detroit. He said she provided him with a helper, plane tickets
to Phoenix, and made arrangements for a place for them to stay while in Phoenix. When they
arrived in Phoenix, someone met them at the airport and took them to a motel. Petitioner
further testified that, the next day, he was given the keys to a truck, told where the rental
papers were, and given a contact number in Detroit. He said he was not given a key to the
back of the truck. It was his understanding that he was moving furniture.
After a two-day trial, the jury convicted Petitioner as charged. On May 9, 2007, the
trial judge sentenced him, as a habitual offender, fourth offense, to fifteen to thirty years in

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prison. Subsequently, he filed a Motion for a New Trial and Resentencing. The trial court
denied his Motion for a New Trial but granted his Motion for Resentencing. Upon
resentencing, Petitioner was resentenced to seventy-one months to fifteen years.
Following his sentencing, Petitioner filed a Direct Appeal with the Michigan Court
of Appeals, raising claims concerning the effectiveness of trial counsel and whether the
evidence presented was sufficient to support his conviction. The Court of Appeals affirmed
Petitioner’s conviction, “but remand[ed] for preparation of an amended judgment of
sentence.” Greene, 2009 WL 1262861, at *1. Petitioner then filed an Application for Leave
to Appeal that decision with the Michigan Supreme Court, raising the same claims raised in
the Court of Appeals. The Supreme Court denied his Application. People v. Greene, 774
N.W.2d 893 (Mich. 2009) (Table).
Petitioner neither filed a Motion for Relief from Judgment with the state trial court nor
a Petition for a Writ of Certiorari with the United States Supreme Court. Rather, on
November 24, 2010, he filed this Habeas Petition, raising the same claims raised in the state
appellate courts: (1) trial counsel was ineffective for failing to seek suppression of the seized
marijuana and for failing to seek suppression of Petitioner’s statements to the police, and (2)
the evidence presented was insufficient to sustain the verdict.
III. STANDARD OF REVIEW
28 U.S.C. § 2254(d) imposes the following standard of review that a federal court
must utilize when reviewing habeas petitions:
(d) An application for a writ of habeas corpus on behalf of a person in custody

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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.
Federal courts are therefore bound by a state court’s adjudication of a petitioner’s
claims unless the state court’s decision was contrary to or involved an unreasonable
application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th
Cir. 1998). This Court must presume the correctness of a state court’s factual determinations.
28 U.S.C. § 2254(e)(1).
The United States Supreme Court has explained the proper application of the
“contrary to” clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court’s]
clearly established precedent if the state court applies a rule that contradicts the
governing law set forth in our cases.
A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a
result different from [the Court’s] precedent.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
With respect to the “unreasonable application” clause of § 2254(d)(1), the United
States Supreme Court held that a federal court should analyze a claim for habeas-corpus

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relief under the “unreasonable application” clause when “a state-court decision unreasonably
applies the law of this Court to the facts of a prisoner’s case.” Williams, 529 U.S. at 409.
The Court defined “unreasonable application” as follows:
[A] federal habeas court making the “unreasonable application” inquiry should
ask whether the state court’s application of clearly established federal law was
objectively unreasonable.
[A]n unreasonable application of federal law is different from an incorrect
application of federal law . . . . Under § 2254(d)(1)’s “unreasonable
application” clause, then, 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. Rather, that application must also be unreasonable.
Id. at 409-11.
Recently, in Harrington v. Richter, --- U.S. ---, ---, 131 S.Ct. 770, 786 (2011)
(citations omitted), 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. 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.” “[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.”
With those standards in mind, the Court proceeds to address Petitioner’s claims.
IV. DISCUSSION
A. Ineffective-Assistance-of-Counsel Claim
In his first habeas claim, Petitioner contends that trial counsel was ineffective for

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failing to seek suppression of both the marijuana discovered in the truck and his admission
that he was responsible for the truck’s contents.
Claims of ineffective assistance of counsel are measured under the standards
established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Petitioner must prove that counsel’s performance fell below an objective standard of
reasonableness and that counsel’s deficient performance prejudiced him, resulting in an
unreliable or fundamentally unfair outcome. Id. In adjudicating the first prong of the
standard, the Court must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct. To prevail on the
second prong, Petitioner must demonstrate a “reasonable probability” that the result of the
trial would have been different but for counsel’s errors. Id. at 694.
Under Strickland, counsel is “strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. The Sixth Amendment is violated only if counsel’s acts or
omissions “were outside the wide range of professionally competent assistance.” Id.
Strategic choices after thorough investigation of law and facts relevant to plausible options
are “virtually unchallengeable.” Id.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, --U.S. ---, ---, 130 S.Ct. 1473, 1485 (2010) (citations omitted). The Supreme Court in
Harrington has recently confirmed that a federal court’s consideration of ineffectiveassistance-of-counsel claims arising from state-criminal proceedings is quite limited on

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habeas review due to the deference accorded trial attorneys and state appellate courts
reviewing their performance. “The standards created by Strickland and [section] 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Harrington, --- U.S. at ---, 131 S.Ct. at 788 (internal and end citations omitted). “When
[section] 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
The Michigan Court of Appeals, although not specifically citing Strickland, clearly
applied the standard and denied Petitioner’s ineffective-assistance-of-counsel claim, stating:
The United States and Michigan Constitutions guarantee a criminal
defendant the right to the assistance of counsel. The constitutional right to
counsel is a right to the effective assistance of counsel. To establish
ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under
prevailing professional norms. The defendant must further show that there is
a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different, and that the attendant proceedings
were fundamentally unfair or unreliable.
***
According to the evidence, when defendant admitted responsibility for the
contents of the truck, no contraband had been discovered by the police. As
defendant offered that statement, then he confessed to no criminal activity,
rather he simply admitted to having responsibility over the contents, which had
yet to be discovered.
“An admission of fact is distinguished from a confession of guilt by the
fact that an admission, in the absence of proof of facts in addition to those
admitted by the defendant, does not show guilt.” “‘If . . . the fact admitted
does not of itself show guilt but needs proof of other facts, which are not
admitted by the accused, in order to show guilt, it is not a confession, but an

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admission. . . .’” “[W]here the defendant’s statements were admissions of fact,
rather than a confession of guilt, no finding of voluntariness is necessary.”
In this case, because further evidence was required before defendant’s
admission of responsibility for the contents of the truck implicated him in
criminal conduct, that admission was admissible at trial even if offered before
Miranda[1] warnings were provided. Additionally, case law suggests that even
if defense counsel were inclined to bring a motion to suppress the admission,
defendant, as an unauthorized driver of the truck, does not have a legitimate
expectation of privacy in that vehicle, and thus has no Fourth Amendment
standing to disallow a search of it. Hence, because there was no legal basis for
suppression of defendant’s admission, and defendant did not have standing to
contest the search, we cannot find that defense counsel was ineffective for
failing to object to the search.
Greene, 2009 WL 1262861, at *2 (internal and end citations omitted).
Petitioner faults his trial counsel for failing to seek suppression of his admission that
he was responsible for the truck’s contents. However, Petitioner has not cited any authority
to support his position. To be entitled to habeas relief on this claim, Petitioner must establish
both that, had the motion been filed, there was a reasonable probability that the evidence
would have been suppressed, and the outcome of the trial would have been different had the
evidence been suppressed. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where
defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim
is meritorious and that there is a reasonable probability that the verdict would have been
different absent the excludable evidence in order to demonstrate actual prejudice.”). An
attorney is not ineffective for failure to raise meritless or insubstantial defenses. See Mahdi

1

Miranda v. Arizona, 384 U.S. 436 (1966).

9

v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008); accord Evans v. Hudson, 575 F.3d 560, 566
(6th Cir. 2009) (petitioner cannot suffer prejudice from counsel’s failure to raise a meritless
claim).
The Court of Appeals rejected this claim, noting that there was no legal basis for the
suppression of Petitioner’s admission. The state appellate court found that, “because further
evidence was required before defendant’s admission of responsibility for the contents of the
truck implicated him in criminal conduct, that admission was admissible at trial even if
offered before Miranda warnings were provided.” Greene, 2009 WL 1262861, at *2. The
Court finds that the Court of Appeals decision is not contrary to, or an unreasonable
application of, clearly established Supreme Court precedent.
There was no legal basis for the suppression of Petitioner’s admission of fact, when
he admitted to the officer that he was responsible for the contents of the truck. Petitioner did
not allege any bad faith on the part of the police officer. After finding the marijuana, the
officer gave Petitioner his Miranda rights and Petitioner agreed to speak to him. Petitioner
has failed to present any evidence to support his allegations. Petitioner has the burden of
establishing that, had counsel moved to suppress his statements, the trial judge would have
granted the request, and thus, counsel was ineffective for failing to do so. See Kimmelman,
477 U.S. at 375. Petitioner cannot meet his burden in this case.
Additionally, the record reveals that, not only did the rental agreement not list
Petitioner as a person allowed to drive the truck, he did not possess a key to the back
compartment’s padlock. He also did not show that he had the authorized renters’ permission

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to drive the truck. Neither person listed on the lease existed and the information written
down was false.
Moreover, as the Court of Appeals noted, Petitioner failed to establish standing to
contest the rented truck’s search. See United States v. Smith, 263 F.3d 571, 586 (6th Cir.
2001) (citing cases) (“[A]s a general rule, an unauthorized driver of a rental vehicle does not
have a legitimate expectation of privacy in a vehicle, and therefore does not have standing
to contest the legality of a search of a vehicle.”). Petitioner fails to support his position that
a mere driver has standing to challenge the truck search. Hence, he has failed to meet his
burden that counsel was ineffective in this regard.
With that, the Court concludes that Petitioner has failed to offer anything to rebut the
presumption of reasonable trial strategy on the part of trial counsel. Accordingly, he is not
entitled to habeas relief on this claim.
B. Insufficient-Evidence Claim
Petitioner next contends that there was insufficient evidence presented to establish that
he had a sufficient possessory interest in the truck to be guilty of possessing the marijuana
found inside the truck.
“[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). The critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction is “whether the record evidence
could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia,

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443 U.S. 307, 318 (1979). That inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”
Id. (footnote omitted). Rather, “the relevant question is 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.” Id. at 319 (emphasis in the
original) (citation omitted).
A federal habeas court may not overturn a state-court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with the state
court’s resolution of that claim. See Cavazos v. Smith, --- U.S. ---, ---, 132 S.Ct. 2, 4 (2011).
A federal court may grant habeas relief only if the state-court decision was an objectively
unreasonable application of the Jackson standard. Id. (citing Renico v. Lett, 559 U.S. ---, ---,
130 S.Ct. 1855, 1862 (2010)). “Because rational people can sometimes disagree, the
inevitable consequence of this settled law is that judges will sometimes encounter
convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id.
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).
In order to convict a defendant under Michigan law of possession of a controlled
substance, a prosecutor must prove that he or she exercised control or had the right to
exercise control over the controlled substance. See McFarland v. Yukins, 356 F.3d 688, 708
(6th Cir. 2004) (citing People v. Konrad, 536 N.W.2d 517, 521 (1995) (additional citations

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omitted)). Under Michigan law, a defendant need not have actual physical possession of a
controlled substance in order to be guilty of possessing it. People v. Wolfe, 489 N.W.2d 748,
520 (1992). Possession of a controlled substance may be actual or constructive. Id.
“[C]onstructive possession exists when the totality of the circumstances indicates a sufficient
nexus between the defendant and the contraband.” Id. at 521 (citation omitted). Constructive
possession of a controlled substance can be proven by circumstantial evidence. See People
v. McGhee, 709 N.W.2d 595, 612 (2005).
The Court of Appeals, in addressing and rejecting this claim, stated:
In this case, defendant asserts that “the evidence presented at trial was
not sufficient to establish, beyond a reasonable doubt, that [defendant] had a
sufficient possessory interest in the truck to be guilty of possessing the
marijuana found inside the truck.” This bald assertion is not sufficient to
present this issue for this Court’s consideration. A party’s mere assertion that
the party’s rights were violated, unaccompanied by record citations, cogent
argument, or supporting authority, is insufficient to present an issue for
consideration by this Court. “A party may not merely state a position and then
leave it to this Court to discover and rationalize the basis for the claim.”
Defendant’s cursory treatment of this issue forfeits searching appellate review.
The evidence reveals that when defendant was stopped, he was in
possession of a vehicle loaded with marijuana, rented to persons other than
him, under circumstances where he was conspicuously nervous, and unable to
specify his destination or contact the supposed recipient of the truck’s
contents. Defendant’s driver’s license indicated a Texas residence, which is
a known source of narcotics and defendant admitted responsibility for the
contents of the truck. All of these factors provided a reasonable basis for the
jury’s guilty verdict. For these reasons, we reject this claim of error.
Greene, 2009 WL 1262861, at *3 (citations omitted).
This Court agrees with the Court of Appeals’s decision in this regard. After it was
determined that Petitioner had an outstanding warrant against him in Texas, he was

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handcuffed. The police officer asked Petitioner “if he was responsible for everything in the
truck and he said yes he was.” Trial Tr. vol. I 68, Mar. 27, 2007. Afterward, the officers
searched the truck and found the marijuana bales. Just because Petitioner does not have
standing to challenge the search of the truck does not mean that he did not have possession,
either actual or constructive, of what was in the truck. See McDaniel v. Brown, 558 U.S. ---,
---, 130 S.Ct. 665, 672 (2010) (in deciding whether evidence is legally sufficient, the
reviewing court considers even improperly admitted evidence).
Accordingly, the Court finds that the Michigan Court of Appeals did not unreasonably
apply any Supreme Court precedent in rejecting Petitioner’s claim. Petitioner is not entitled
to habeas relief with respect to this claim.
C. Court Declines to Issue Petitioner a 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, which was amended as of December 1, 2009,
requires that a district court must “issue or deny a [COA] when it enters a final order adverse
to the applicant . . . . If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules
Governing Section 2254 Proceedings.
A COA may issue “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a COA indicating
which issues satisfy the required showing or provide reasons why such a certificate should

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not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b). To receive a COA “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.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotes and citations omitted).
For the reasons stated in its Opinion and Order, the Court concludes that reasonable
jurists would not find its assessment of Petitioner’s claims debatable or wrong. The Court
therefore declines to issue Petitioner a COA.
V. CONCLUSION
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.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: April 9, 2012
CERTIFICATE OF SERVICE

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The undersigned certifies that a copy of this Order was served upon the attorneys of
record by electronic or U.S. mail on April 9, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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