Carrodine v. Romanowski
Filing
15
OPINION AND ORDER DENYING Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES EDWARD CARRODINE,
Petitioner,
v.
Civil No. 2:11-CV-15587
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
KENNETH ROMANOWSKI,
Respondent,
/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
James Edward Carrodine, (“Petitioner”), confined at the Macomb Correctional
Facility in New Haven, Michigan, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C.§ 2254. In his pro se habeas petition, Petitioner challenges his conviction and
sentence for first-degree felony murder, M.C.L.A. 750.316(1)(b); and first-degree
criminal sexual conduct, M.C.L.A. 750.520b. For the reasons that follow, the petition for
writ of habeas corpus is DENIED.
I. Background
A jury convicted Petitioner of the above offenses in Genesee County Circuit Court.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals. These facts are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant's convictions arose from the 1997 murder and sexual assault of a
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14-year-old girl. Although the initial police investigation did not lead to any
suspects, various items of physical evidence were submitted for retesting in
2003, and led to the discovery of a seminal stain on the victim’s sock. A DNA
profile was developed and entered into the Combined DNA Indexed System
(CODIS). In 2005, a CODIS hit led to defendant. Additional testing
confirmed the presence of defendant’s DNA on the victim’s sock. Defendant
was interviewed in May 2006. He stated that he was at work at the time the
victim was killed, but that he knew who killed her. Following his interview,
defendant was arrested. At trial, a witness contradicted defendant’s claim that
he was working at the time of the offense. In addition, two witnesses who
shared a jail cell with defendant testified that defendant told them that he had
killed a young girl.
People v. Carrodine, No. 289802, * 1 (Mich.Ct.App. May 20, 2010).
Petitioner’s conviction was affirmed on appeal. Id; lv. den. 488 Mich. 872; 788
N.W.2d 450 (2010); reconsideration den. 488 Mich. 997; 791 N.W.2d 446 (2010).
Petitioner seeks habeas relief on the six grounds that he raised in the state courts
on his direct appeal; whether: (i) Petitioner’s conviction is against the great weight of the
evidence; (ii) the delay in arresting Petitioner violated his due process rights; (iii)
Petitioner clearly and unequivocally requested to speak with an attorney during police
interrogation; (iv) trial counsel was ineffective for failing to request a jury instruction on
mere presence; (v) the prosecutor committed misconduct during closing argument; and
(vi) Petitioner is entitled to habeas relief based on cumulative error.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
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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.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06
(2000). An “unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A
federal habeas court may not “issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855,
1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
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Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 131 S.
Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court emphasized “that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. ( citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas 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 the
Supreme Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims previously
rejected in the state courts, it preserves the authority for a federal court to grant habeas
relief only “in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with” the Supreme Court’s precedents. Id. Indeed,
“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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5
(1979))(Stevens, J., concurring in judgment)). Thus, a “readiness to attribute error [to a
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state court] is inconsistent with the presumption that state courts know and follow the
law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court’s rejection of his claim
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington, 131 S. Ct. at 786-87. Finally, in reviewing Petitioner’s claims, this Court
must remember that under the federal constitution, Petitioner was “entitled to a fair trial
but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953).
III. Discussion
A. Claims # 2 and # 5: Procedural default.
Respondent contends that Petitioner’s second claim involving pre-arrest delay and
his fifth claim alleging prosecutorial misconduct are procedurally defaulted.
In rejecting Petitioner’s pre-arrest delay claim, the Michigan Court of Appeals
reviewed the issue for plain error because Petitioner failed to move for dismissal of the
charges on the basis of pre-arrest delay or otherwise raise the issue in the trial court. See
Carrodine, Slip. Op. at * 1. The Michigan Court of Appeals likewise reviewed
Petitioner’s prosecutorial misconduct claim for plain error because Petitioner failed to
object to the alleged misconduct. Id., at * 4.
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged constitutional violation, or can
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demonstrate that failure to consider the claim will result in a “fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a petitioner fails to
show cause for his procedural default, it is unnecessary for the court to reach the
prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an
extraordinary case, where a constitutional error has probably resulted in the conviction of
one who is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of
innocence requires a petitioner to support the allegations of constitutional error with new
reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324
(1995). Actual innocence, which would permit collateral review of a procedurally
defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v.
United States, 523 U.S. 614, 623 (1998).
In this case, the Michigan Court of Appeals clearly indicated that by failing to file
a motion to dismiss or otherwise raise the issue before the trial court, Petitioner had not
preserved his pre-arrest delay claim. The Michigan Court of Appeals likewise concluded
that by failing to object at trial, Petitioner had not preserved his prosecutorial misconduct
claim. The fact that the Michigan Court of Appeals engaged in plain error review of
Petitioner’s pre-arrest delay and prosecutorial misconduct claims does not constitute a
waiver of the state procedural default. Seymour v. Walker, 224 F. 3d 542, 557 (6th Cir.
2000). Instead, this Court should view the Michigan Court of Appeals’ review of
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Petitioner’s claims for plain error as enforcement of the procedural default. Hinkle v.
Randle, 271 F. 3d 239, 244 (6th Cir. 2001). In addition, the mere fact that the Michigan
Court of Appeals also discussed the merits of Petitioner’s claims in the alternative does
not mean that the claims were not procedurally defaulted. A federal court need not reach
the merits of a habeas petition where the last state court opinion clearly and expressly
rested upon procedural default as an alternative ground, even though it also expressed
views on the merits. McBee v. Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991).
Petitioner’s pre-arrest delay and prosecutorial misconduct claims are procedurally
defaulted.
Petitioner offered no reasons for his failure to properly preserve his pre-arrest
delay and prosecutorial misconduct claims. Although ineffective assistance of counsel
may constitute cause to excuse a procedural default, that claim itself must be exhausted
in the state courts. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Although
Petitioner raised an ineffective assistance of counsel claim on his appeal involving
counsel’s failure to request a jury instruction on mere presence, he never raised a claim
that trial counsel was ineffective for failing to challenge the pre-arrest delay or for failing
to object to prosecutorial misconduct. Because Petitioner never raised in the Michigan
courts a specific claim about trial counsel’s failure to object to the alleged pre-arrest
delay or the prosecutorial misconduct, any alleged ineffectiveness of counsel cannot
constitute cause to excuse Petitioner’s default with respect to these particular claims. See
Wolfe v. Bock, 412 F. Supp. 2d 657, 684 (E.D. Mich. 2006).
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Petitioner failed to allege any reasons to excuse his procedural default. Because
Petitioner has not demonstrated any cause for his procedural default, it is unnecessary to
reach the prejudice issue regarding his pre-arrest delay and prosecutorial misconduct
claims. Smith, 477 U.S. at 533.
Additionally, Petitioner has not presented any new reliable evidence to support
any assertion of innocence which would allow this Court to consider his pre-arrest delay
and prosecutorial misconduct claims as a ground for a writ of habeas corpus in spite of
the procedural default. Because Petitioner has not presented any new reliable evidence
that he is innocent of these crimes, a miscarriage of justice will not occur if the Court
declines to review Petitioner’s procedurally defaulted claims on the merits. See Campbell
v. Grayson, 207 F. Supp. 2d 589, 597-98 (E.D. Mich. 2002).
Finally, assuming that Petitioner had established cause for his default, he would
be unable to satisfy the prejudice prong of the exception to the procedural default rule,
because his claims would not entitle him to relief. The cause and prejudice exception is
conjunctive, requiring proof of both cause and prejudice. See Matthews v. Ishee, 486 F.
3d 883, 891 (6th Cir. 2007). For the reasons stated by the Michigan Court of Appeals in
rejecting Petitioner’s pre-arrest delay and prosecutorial misconduct claims when
addressing the merits of these claims in the alternative, See Carrodine, Slip. Op. at * 2-4,
as well as for the reasons stated by the Respondent in their answer to the petition,
Petitioner failed to show that his claims have any merit. The reasons justifying the
denial of Petitioner’s pre-arrest delay and prosecutorial misconduct claims were “ably
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articulated by the” Michigan Court of Appeals, therefore, “the issuance of a full written
opinion” by this Court regarding these claims “would be duplicative and serve no useful,
jurisprudential purpose.” See Bason v. Yukins, 328 Fed. Appx. 323, 324 (6th Cir. 2009).
Petitioner’s second and fifth claims are barred by procedural default and do not
warrant relief.
B. Claim # 1: Great weight of the evidence.
In his first claim, Petitioner alleges that the jury verdict went against the great
weight of the evidence. Specifically, Petitioner says there were no eyewitnesses to the
crime and the sole evidence against him was his own DNA that had been taken from a
one-centimeter semen stain found on the heel of the victim’s sock. Petitioner also argues
that his trial expert so impeached the police serologist’s testimony concerning the quality
of the semen sample and how it got on the victim’s sock that his own expert deprived the
police serologist’s testimony of any probative value.
A federal habeas court has no power to grant habeas relief on the ground that a
state conviction is against the great weight of the evidence. Cukaj v. Warren, 305 F.
Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D.
Mich. 2002); See also Artis v. Collins, 14 Fed. Appx. 387 (6th Cir. 2001)(declining to
grant certificate of appealability to habeas petitioner on claim that jury’s verdict was
against the manifest weight of the evidence). A claim that a verdict went against the
great weight of the evidence is not of constitutional dimension for habeas corpus
purposes, unless the record is so devoid of evidentiary support that a due process issue is
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raised. Cukaj, 305 F. Supp. 2d at 796; See also Crenshaw v. Renico, 261 F. Supp. 2d
826, 834 (E.D. Mich. 2003). The test for habeas relief is not whether the verdict was
against the great weight of the evidence, but whether there was any evidence to support
it. Dell, 194 F. Supp. 2d at 648. As long as there is sufficient evidence to convict
Petitioner of these crimes, the fact that the verdict may have gone against the great
weight of the evidence would not entitle him to habeas relief. Id.
To the extent Petitioner challenges the sufficiency of the evidence to convict him,
he is not entitled to habeas relief. It is beyond question that “the 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). But, 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,
443 U.S. 307, 318 (1979). This 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.” Instead, 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 318-19(internal citation and
footnote omitted)(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court decision
which rejects a sufficiency of the evidence claim, simply because the federal court
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disagrees with the state court’s resolution of that claim. Instead, a federal court may
grant habeas relief only if the state court decision was an objectively unreasonable
application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011).
“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. Indeed, for a federal habeas court
reviewing a state court conviction, “the only question under Jackson is whether that
finding was so insupportable as to fall below the threshold of bare rationality.” Coleman
v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Here, there was sufficient evidence to convict Petitioner of these crimes. In
addition to the DNA evidence, there was trial evidence which established Petitioner’s
presence near the vicinity of the crime; this contradicted his claim that he was working at
the time of the offense. Most importantly, Petitioner admitted to two fellow inmates that
he killed the victim. Carrodine, Slip. Op. at * 5.
Eyewitness identification is not necessary to sustain a conviction. See United
States v. Brown, 408 F. 3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp. 2d at
648. The DNA evidence was sufficient in and of itself to establish Petitioner’s identity
as the perpetrator. See e.g. U.S. v. Seawood, 172 F. 3d 986, 988 (7th Cir. 1999). In
addition, “[A]n admission by the accused identifying himself as the person involved in
the (crime) is sufficient to sustain a guilty verdict when the crime itself is shown by
independent evidence.” United States v. Opdahl, 610 F. 2d 490, 494 (8th Cir. 1979).
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Petitioner’s admissions to the crime were sufficient to sustain the jury’s verdict,
particularly when coupled with the DNA evidence.
To the extent that Petitioner challenges the credibility of the prosecution
witnesses, he would not be entitled to relief. Attacks on witness credibility are simply
challenges to the quality of the prosecution’s evidence, and not to the sufficiency of the
evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002). An assessment of the
credibility of witnesses is generally beyond the scope of federal habeas review of
sufficiency of evidence claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). The
mere existence of sufficient evidence to convict therefore defeats a petitioner’s claim. Id.
Any insufficiency of evidence claim that rests on an allegation of the witnesses’
credibility, which is the province of the finder of fact, does not entitle a habeas petitioner
to relief. See Tyler v. Mitchell, 416 F. 3d 500, 505 (6th Cir. 2005). Petitioner is not
entitled to habeas relief on his first claim.
C. Claim # 3: Motion to suppress.
Petitioner next alleges that the trial court erred in failing to suppress statements
that he had made to the police, on the ground that the police continued to question
Petitioner after he invoked his right to counsel.
The following exchange occurred during defendant’s police interview:
Sergeant Teddy: [I]f it wasn’t you that killed her, then the time frame is so
short, you would’ve run into the killer coming in and out of that apartment.
Petitioner: See, I don’t-see, I don’t-see, right now, I gotta say, on there I
need a lawyer or whatever. Because I don’t know how long it take or
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whatever. I don’t I'm not even saying that I actually-you know what I
mean? ‘Cause I-‘cause I-right now, like I-but see-you all got-if-if-....
(Tr. 5/18/2006, p. 201).
Petitioner, however, continued speaking at great length with the detective
about the case. (Id., pp. 201-299).
The Michigan Court of Appeals rejected Petitioner’s claim:
Here, the trial court did not clearly err in finding that defendant’s passing
reference to a lawyer was not an unequivocal invocation of the right to
counsel. After making the reference and before any further questioning by
the interrogating officer, defendant continued his lengthy explanation in
response to the officer’s question. Under the circumstances, it was reasonable
for the officer to believe that defendant’s passing reference to a lawyer was
not intended as an unambiguous expression of a present desire for counsel.
Therefore, the trial court did not err in denying defendant’s motion to
suppress.
Carrodine, Slip. Op. at 4 (internal citation omitted).
It is true that once an accused invokes his right to counsel during custodial
interrogation, that interrogation must cease until counsel is made available, unless the
accused initiates further conversation with the police. Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). However, the “[i]nvocation of the Miranda right to counsel ‘requires, at
a minimum, some statement that can reasonably be construed to be an expression of a
desire for the assistance of an attorney.’” Davis v. United States, 512 U.S. 452, 459
(1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). The suspect’s
statement “must unambiguously request counsel.” Id. at 459. Additionally, “[u]nless the
suspect actually requests an attorney, questioning may continue.” Id. at 462.
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The trial court judge and the Michigan Court of Appeals did not unreasonably
apply clearly established federal law in finding that Petitioner did not clearly and
unequivocally invoke his right to counsel, because fairminded jurists could conclude that
Petitioner’s passing reference to an attorney was not an unambiguous request to speak
with counsel. Indeed, in Davis, the Supreme Court concluded that the defendant’s
statement “Maybe I should talk to a lawyer” was not an unequivocal request for counsel.
Davis, 512 U.S. at 462.
Other cases have found similar language to be too equivocal to amount to an
unambiguous request to speak to counsel, so as to require the police to cease their
interrogation. See U.S. v. Amawi, --- F.3d ----, No. 2012 WL 3602313, * 20-21 (6th Cir.
August 23, 2012)(defendant’s statements during Miranda warning, that “I'm going to
wait” and asking “is there a lawyer on board” were neither clear nor unequivocal
invocation of the right to remain silent or the right to counsel, as would warrant
suppression of inculpatory statements made on board jet from Jordan to United States
from prosecution for conspiracy to kill and maim persons outside the United
States);Rogers v. Kerns, No. 2012 WL 2126355, * 8 (6th Cir. June 12, 2012)(habeas
petitioner’s inquiry after signing his Miranda waiver form and immediately before
confessing “I can't write this with a lawyer or anybody[?],” was not an unequivocal
invocation of the right to counsel); Cornelison v. Motley, 395 Fed.Appx. 268, 274 (6th
Cir. 2010)(habeas petitioner’s comment “What if I want my lawyer present first?” too
ambiguous to require the police to terminate their interrogation, particularly where
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petitioner proceeded afterward to fill out waiver form and then indicated he wished to
speak with the police); Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir.
1994)(defendant’s statement during police interrogation, that “it would be nice” to have
an attorney, was too ambiguously worded to require police to stop questioning
defendant); U.S. v. Mullikin, 534 F. Supp. 2d 734 (E.D. Ky. 2006)(defendant’s equivocal
and ambiguous statement to arresting officer that “I think I might need a lawyer” did not
invoke right to counsel).
In light of these cases, Petitioner is unable to show that the state courts’
conclusion that Petitioner did not actually invoke his right to counsel “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.
Moreover, Petitioner is unable to show how he was prejudiced by the admission
of his statements to the police, because Petitioner never actually confessed to sexually
assaulting or murdering the victim. For purposes of determining whether federal habeas
relief must be granted to a state prisoner on the ground of federal constitutional error, the
appropriate harmless error standard to apply is whether the error had a substantial and
injurious effect or influence in determining the jury’s verdict. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993). Even if Petitioner was interrogated in violation of Edwards v.
Arizona, the admission of his statements to the police did not have a substantial and
injurious influence or effect on his jury, in light of the far more incriminating evidence
that was introduced against Petitioner at his trial, including the DNA evidence and his
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admissions to his fellow jail inmates. See Kyger v. Carlton, 146 F. 3d 374, 382-83 (6th
Cir. 1998). Petitioner is not entitled to habeas relief on his third claim.
D. Claim # 4: Ineffective assistance of counsel.
Petitioner next contends that his trial counsel was ineffective for failing to
request a mere presence instruction, as part of the trial court's instruction on aiding and
abetting. The Michigan Court of Appeals rejected Petitioner’s claim:
The trial court instructed the jury on aiding and abetting because of evidence
that defendant allegedly indicated that someone else was also involved in the
crime. However, the defense theory at trial was that defendant was not
present during the commission of the crime. Defendant has not overcome the
presumption that defense counsel declined to request an instruction on mere
presence as a matter of strategy, to avoid any suggestion that defendant may
have been present during the offense. Accordingly, defendant has not
established that defense counsel was ineffective.
Carrodine, Slip. Op. at * 5.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
must demonstrate that, considering all of the circumstances, counsel’s performance was
so deficient that the attorney was not functioning as the “counsel” guaranteed by the
Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. In other words, the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
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such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different
result must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 131 S. Ct. at 792). The Supreme Court’s holding in
Strickland places the burden on the defendant who raises a claim of ineffective
assistance of counsel, and not the state, to show a reasonable probability that the result of
the proceeding would have been different, but for counsel’s allegedly deficient
performance. See Wong v. Belmontes, 130 S. Ct. 383, 390-91 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 131 S.
Ct. at 785. Indeed, “because the Strickland standard is a general standard, a state court
has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664).
Pursuant to § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a
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Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of
a state court conviction, “[A] state court must be granted a deference and latitude that are
not in operation when the case involves review under the Strickland standard
itself.”Harrington, 131 S. Ct. at 785. “Surmounting Strickland's high bar is never an
easy task.” Id. at 788 (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)).
Because of this doubly deferential standard, the Supreme Court has indicated that:
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 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.
Harrington v. Richter, 131 S. Ct. at 788.
In addition, a reviewing court must not merely give defense counsel the benefit of
the doubt, but must also affirmatively entertain the range of possible reasons that counsel
may have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388,
1407 (2011).
Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to
cast doubt on a trial that took place” almost four years ago “is precisely what Strickland
and AEDPA seek to prevent.” Harrington v. Richter, 131 S. Ct. at 789.
Petitioner’s defense at trial was that he did not sexually assault or murder the
victim and was not even present when she was assaulted and killed. Trial counsel’s
decision not to request an instruction on mere presence was a valid strategic decision in
light of the defense raised at trial that Petitioner was neither present nor had any
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involvement in the sexual assault and the murder. See e.g. U.S. v. Chambers, 918 F.2d
1455, 1461-62 (9th Cir. 1990)(Trial counsel was not ineffective in failing to request
“mere presence, proximity and association” instruction on possession in narcotics
prosecution where counsel chose to pursue different line of defense attacking identity of
perpetrator rather than defendant's possession of narcotics). The Michigan Court of
Appeals’ rejection of Petitioner’s claim was not an unreasonable application of
Strickland, so as to entitle Petitioner to relief on his claim.
E. Claim # 6: Cumulative errors.
Finally, Petitioner contends that he is entitled to habeas relief because of the
cumulative effect of errors in his case.
The cumulative weight of alleged constitutional trial errors in a state prosecution
does not warrant federal habeas relief, because there is no clearly established federal law
permitting or requiring the cumulation of distinct constitutional claims to grant habeas
relief. Moore v. Parker, 425 F. 3d 250, 256 (6th Cir. 2005). Therefore, Petitioner is not
entitled to habeas relief on this ground.
IV. Conclusion
The Court denies the petition for writ of habeas corpus. The Court also denies a
certificate of appealability to Petitioner. To obtain a certificate of appealability, a
prisoner must make a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or agree that, the petition should have been
19
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, 483-84 (2000).
When a district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484. “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court denies Petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Siebert v. Jackson, 205 F. Supp. 2d 727, 735 (E.D. Mich.
2002).
Although this Court denies a certificate of appealability, the standard for granting
an application for leave to proceed in forma pauperis (IFP) is a lower standard than the
standard for certificates of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750,
764 (E.D. Mich. 2002). A certificate of appealability may only be granted if petitioner
makes a substantial showing of the denial of a constitutional right, but a court may grant
IFP status if it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. §
1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing that the issues raised
are not frivolous; it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
20
resolution of Petitioner’s claims, the issues are not frivolous; therefore, an appeal could
be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id.
V. ORDER
The Petition for Writ of Habeas Corpus is DENIED, as well as a Certificate of
Appealability.
Petitioner is GRANTED leave to appeal in forma pauperis.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 7, 2012
The undersigned certifies that a copy of this
document was served on the attorneys of record
and James Edward Carrodine by electronic
means or U.S. Mail on November 7, 2012.
S/Linda Vertriest
Deputy Clerk
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