Smith v. Palmer
Filing
23
OPINION and ORDER 1) Denying Respondent's 19 Motion to Dismiss, 2) Denying 15 Amended Petition for Writ of Habeas Corpus, 3) Denying a Certificate of Appealability, and 4) Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CORDNEY SMITH,
Petitioner,
Case No. 2:12-cv-11036
Hon. Denise Page Hood
CARMEN PALMER,
Respondent.
_______________________________/
OPINION AND ORDER 1) DENYING RESPONDENT’S MOTION TO
DISMISS [Dkt. 19], 2) DENYING AMENDED PETITION FOR A WRIT OF
HABEAS CORPUS, 3) DENYING A CERTIFICATE OF APPEALABILITY,
AND 4) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
This matter is before the Court on Petitioner Cordney Smith’s petition for a
writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the
Wayne County Circuit Court after a bench trial of two counts of assault with intent
to commit murder, MICH. COMP. LAWS. § 750.83, felon in possession of a firearm,
MICH. COMP. LAWS. § 750.224f, and commission of a felony with a firearm, MICH.
COMP. LAWS. § 750.227b. He was sentenced to 20-to-50 years for the assault
convictions, 2-to-5 years for the felon in possession conviction, and a consecutive
two years for the felony-firearm conviction.
The petition raises ten claims: 1) Petitioner was subjected to a suggestive
identification procedure; 2) Petitioner’s statement to police was the product of an
illegal arrest; 3) Petitioner’s rights under the Confrontation Clause were violated by
the admission of hearsay testimony at trial; 4) there was insufficient evidence
presented at trial to support Petitioner’s convictions; 5) Petitioner was denied the
right to testify on his own behalf; 6) Petitioner was denied the effective assistance of
counsel; 7) the prosecutor suppressed evidence favorable to the defense; 8) the trial
court abused its discretion in making findings of fact; 9) Petitioner’s trial counsel was
ineffective for failing to locate defense witnesses; and 10) police officers lacked
probable cause to arrest Petitioner.
In response to the petition, Respondent filed a motion to dismiss, contending
that the petition was filed after expiration of the one-year statute of limitations.
The Court finds that the petition was timely filed, but it also finds that
Petitioner’s claims are without merit or are barred by his state court procedural
default. The petition will be denied. The Court will also deny Petitioner a certificate
of appealability, but grant him permission to proceed on appeal in forma pauperis.
I. Facts and Procedural History
The case against Petitioner concerned the shooting of Derrick Agee and Jovella
Caradine in a Detroit apartment building. Both Agee and Caradine had seen Petitioner
standing around the apartment building for months prior to the shooting, and
therefore, he was not a stranger to them. Petitioner confessed to the shooting after his
-2-
arrest.
Prior to trial, Petitioner’s counsel moved before trial to suppress the
identification of Petitioner as resulting from an unduly suggestive photographic
show-up. Defense counsel also moved to suppress Petitioner’s statement to police as
the product of an unlawful arrest.
At the evidentiary hearing on the motions, Agee testified that several times on
July 24, 2007, he saw a person standing outside the apartment building where Agee
resided. The person was wearing blue jeans and a red shirt. Agee had seen the same
person every day for at least two months. At about 6:00 p.m. that day, Agee had told
the person to move away from under his window. The person responded, “You don’t
know who you fucking with. My name Spider.”
Agee testified to seeing the same person, whom he identified as Petitioner,
again at 2:00 a.m. the following morning, when Agee answered the door to the
apartment building. Petitioner was wearing all black and entered the building behind
the people Agee buzzed in. Petitioner shot Agee several times and ran down the stairs
and out of the building. Agee looked out the window and could see Petitioner running
through the alley outside the building.
On July 30, 2007, the police showed Agee a single photograph of Petitioner,
which Agee identified as depicting “the guy who calls himself Spider.” He testified
-3-
that the photograph did not influence his identification.
Another witness, Jovella Caradine, testified that she had seen a person she
identified as Petitioner in front of the apartment building more than ten times before
the incident. When the shooting happened, she got a clear look at the perpetrator, and
said she had “no doubt” of the identification.
Detroit police officer Terence Sims testified that dispatch had advised him on
July 29, 2007, that Petitioner, known as “Spider” was at a certain location and was
wanted in connection with a shooting. Sims had reviewed statements taken from Agee
and Caradine before that date and was aware that the shooter’s name was reportedly
“Spider.” Sims authorized Mr. Smith’s arrest and a scout car was dispatched.
Petitioner was arrested at that location.
The trial court denied both defense motions, ruling that information from the
two complainants provided probable cause to arrest Petitioner for the shooting, and
that although the photographic identification procedure was improper, there was a
sufficiently independent basis for the victims to identify him.
At trial, Agee testified to residing on July 24, 2007, at an apartment building
on Plymouth Road in Detroit. Agee had seen Petitioner, whom Agee knew as
“Spider,” outside the building and lingering in the hallway every day for two or three
months. Between 4:00 and 6:00 p.m., Petitioner came up under Agee’s window seven
-4-
or eight times, picking something out of a bag and going the other way. At about 6:00
p.m., Agee told Petitioner not to stand under the window, and Petitioner responded
that Agee “didn’t know who [he was] fucking with” and that his name was “Spider.”
Petitioner wore a red shirt and blue jeans at that time.
Agee testified that he next saw Petitioner at about 2:00 a.m. on July 25, 2007,
in the hallway of the apartment building after Agee had buzzed in Agee’s girlfriend.
Petitioner was wearing all black clothing. Agee asked if Petitioner was trying to enter,
but Petitioner did not respond and went downstairs.
Agee testified that about fifteen minutes later, he buzzed in his neighbor and
another woman. Petitioner pulled the door open, and had a pistol in his hand.
Petitioner raised the pistol, Agee backpedaled, and Petitioner fired, striking Agee.
Agee tried to run, but slipped on the floor and fell. Petitioner shot Agee in the chest,
and then kept shooting until the gun clicked, striking Agee in the left biceps, right
forearm, and the back of the right thigh. Petitioner then turned and ran out the door.
Agee testified that he went back down the hallway and told his girlfriend to call
an ambulance. He looked out a side window and saw Petitioner come around through
the parking lot going through an alley. Agee was treated at the hospital and released.
Sergeant Hansberry brought a photograph to Agee’s residence on July 30,
2007. Agee testified to identifying Petitioner at the preliminary examination, and to
-5-
having “no doubt”that Petitioner was the shooter.
Jovella Caradine testified at trial that she resided in the same apartment
building, and had seen Petitioner, also known as “Spider,” around the building
“numerous times” in the three months before the incident. On July 25, 2007, at about
2:00 a.m., Caradine had returned home from a nightclub and had seen Petitioner and
another woman at the common entrance. The woman opened the door, and Petitioner
appeared from the bushes and followed the woman inside. Petitioner wore black
pants, a black jacket, and a black hat.
Caradine testified that she walked up to the second floor, saw Agee had opened
the hallway door, and saw Petitioner pull out a gun and start shooting Agee. Agee
fell, and Petitioner ran up and shot him again as he lay on the floor. Petitioner then
pointed the gun at Caradine as she was running down the hallway, and shot her in the
back and arm before continuing to shoot at Agee.
Detective Hansberry came to her residence at a later date and showed her a
single photograph. She said she had “no doubt” that Petitioner was the man that shot
her and would have identified him even without seeing the photograph.
Detective Sims testified at trial that Petitioner waived his Miranda rights and
told Sims that the complainant had confronted him about selling dope outside the
apartment building, that Petitioner returned, told the complainant “You remember
-6-
me,” that Petitioner shot the complainant four or five times and ran, that Petitioner
was not trying to hit anybody, that Petitioner just wanted the complainant to know he
was not a “punk,” and that Petitioner threw the gun away in a vacant house.
Based on this evidence, the trial court found Petitioner guilty of the offenses
indicated above.
Following his convictions and sentences, Petitioner filed an appeal of right
with the Michigan Court of Appeals. His appellate brief raised what now form
Petitioner’s first two claims in his amended petition as well as a third claim.
Petitioner’s motion to file a supplemental pro se brief was denied. On October 20,
2009, the court of appeals issued an unpublished opinion affirming Petitioner’s
convictions. People v. Smith, No. 285030, 2009 WL 3365862, at *1 (Mich. Ct. App.
Oct. 20, 2009).
Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court. On April 27, 2010, the Michigan Supreme Court denied Smith’s application.
People v. Smith, 780 N.W.2d 806 (Mich. 2010).
On February 15, 2012, Petitioner filed a motion for relief from judgment in the
trial court, and then an amended motion together which raised what essentially now
form the remaining eight claims presented in his amended habeas petition. The trial
court denied the motion in an opinion dated May 9, 2012. The trial court found that
-7-
Petitioner’s motion was barred from review under Michigan Court Rule 6.508(D)(3).
See ECF No. 21-21, p. 9.
On March 8, 2012, Petitioner filed the instant action, and soon thereafter he
filed a motion to stay the case in order to complete exhaustion of his post-conviction
claims. The Court granted the motion to stay. See ECF No. 10.
Petitioner filed a delayed application for leave to appeal in the Michigan Court
of Appeals, appealing the denial of his motion for relief from judgment. On March
21, 2013, the Michigan Court of Appeals denied the application under Rule 6.508(D).
People v. Smith, No. 313489 (Mich. Ct. App. March 21, 2013). Petitioner then filed
an application for leave to appeal with the Michigan Supreme Court. On November
25, 2013, the Michigan Supreme Court denied Petitioner’s application for leave to
appeal under the same court rule. People v. Smith, 839 N.W.2d 484 (Mich. 2013).
Petitioner filed his amended petition on January 2, 2014.
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 following 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
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
-8-
(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 state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies
a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the
statute permits a federal habeas court to ‘grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court but unreasonably applies
that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) quoting Williams, 529 U.S. at 413. “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562
U.S.86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
-9-
correction through appeal. . . . As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-87 (internal quotation omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
However, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
III. Analysis
A. Statute of Limitations
Respondent filed a motion to dismiss the petition on the grounds that it was
filed after expiration of the one-year statute of limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides
a one-year period of limitation for a habeas petition filed by a state prisoner seeking
habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs
-10-
from one of four specified dates, usually either the day when the judgment becomes
final by the conclusion of direct review or the day when the time for seeking such
review expires. 28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled while “a
properly filed application for State post-conviction or other collateral review . . . is
pending.” 28 U.S.C. § 2244(d)(2).
The limitation period began to run in this action when Petitioner’s conviction
“became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. 2244(d)(1)(A). None of the other potential starting
points apply to this case.
The expiration of time for seeking direct review under 28 U.S.C. §
2244(d)(1)(A) was July 26, 2010—90 days after the Michigan Supreme Court denied
Smith’s application for leave to appeal on April 27, 2010. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). The period of limitations began running the
next day, July 27, 2010. Petitioner then had one year, until July 27, 2011, within
which to file his petition, or to instead properly file an application for state
post-conviction or other collateral review, which would toll the one-year statute of
limitations period under 28 U.S.C. §2244(d)(2).
Respondent states that Petitioner did not file his motion for relief from
judgment until February 15, 2012 – 203 days after the statute of limitations expired.
-11-
In response to the motion to dismiss, however, Petitioner indicates that he placed his
motion for relief from judgment in the prison mail system on July 15, 2011, with
twelve days remaining on the limitations period. Petitioner supports this assertion
with a copy of a Michigan Department of Corrections legal mail disbursement
authorization form indicating that his motion was delivered to prison officials for
mailing on July 15, 2011, and placed in the outgoing mail on July 18, 2011. See ECF
No. 20, p. 12. The mail was mishandled, and the motion was then resubmitted on
December 29, 2011.
Although Michigan now recognizes a type of “prison mailbox rule,” it is
applicable only “[t]o appeals from administrative agencies, appeals from circuit court
(both claims of appeal and applications for leave to appeal), and appeals from
decisions of the Court of Appeals to the Supreme Court.” See Staff Comment to
February 25, 2010 Amendment, foll. Michigan Court Rule 7.105, 7.204, 7.205, 7.302.
Michigan’s post-conviction court rules do not contain a prison mailbox rule for the
filing of a post-conviction motion for relief from judgment with the trial court. The
federal mailbox rule cannot be applied by a federal habeas court to determine that a
prisoner’s state post-conviction pleading has been timely filed, where the mailbox
rule has not been recognized by that state’s appellate courts. See, e.g., Vroman v.
Brigano, 346 F.3d 598, 603-04 (6th Cir. 2003).
-12-
Nevertheless, the AEDPA limitation is subject to equitable tolling in
appropriate cases. Holland v. Florida, 560 U.S. 631, 645(2010). A petitioner is
entitled to equitable tolling if he shows “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). In certain cases, delay by prison or other government officials may constitute
grounds for equitable tolling. Pliler v. Ford, 542 U.S. 225, 235 (2004).
The Court finds that Petitioner has demonstrated that he did everything in his
power to comply with the limitations period by attempting to file his motion for relief
from judgment in a timely manner. The mishandling of the legal mail which resulted
in the delayed filing was something that was entirely out of his control. It constitutes
an extraordinary circumstance which excuses the delay in the filing of his motion for
relief from judgment. But for the mishandling of his mail, his petition would have
been timely filed. Accordingly, Respondent’s motion to dismiss is denied, and the
Court will proceed to the merits of the petition.
B. Suggestive Identification Procedure
Petitioner’s first claim asserts that the identification testimony of the victims
should have been suppressed because it resulted from impermissibly suggestive
pretrial identification procedures. This claim was presented to the trial court, which
-13-
rejected it after holding a hearing, and then the Michigan Court of Appeals again
rejected the claim during Petitioner’s direct appeal.
The state courts found that the pretrial identification procedure was improper.
The record shows that each victim was shown a single booking photograph of
Petitioner five days after the incident. Petitioner was in custody, but the police elected
not to conduct any sort of photographic show up or live line up identification
procedure. Despite the improper procedure, Petitioner’s claim was rejected because
the state courts found that there was an independent basis for the victims’
identification of Petitioner:
With regard to their prior knowledge of defendant, Agee had seen
defendant outside of the apartment building every day for two months
before the crime occurred. Although he did not know defendant
personally, Agee spoke to defendant less than 24 hours before the
incident and he saw defendant several times on the day of the crime.
Caradine testified that, although she did not know defendant personally,
she had seen defendant repeatedly around the apartment building over
a period of a few months and had seen him earlier on the day of the
incident.
Both victims also saw defendant while he was committing the crime.
Agee testified that he saw defendant with a gun from a distance of ten
feet as he opened the door to the hallway on the second floor. Caradine
saw defendant outside of the apartment building, which was well lit by
a streetlight, just before the incident occurred. She walked inside with
defendant and then up to the second floor. When Agee opened the door
on the second floor, she walked past him and then turned and saw
defendant start shooting in the well-lit hallway.
-14-
About five days elapsed between the crime and the identification and
both victims testified that they had no doubt defendant was the shooter.
Caradine was unable to provide a description of the shooter, but she told
the police officer that if she saw him again, she would know. Agee’s
description had some discrepancies, but there was no prior identification
or failure to identify defendant on the part of either victim, nor was there
any prior identification of someone other than defendant. Additionally,
no evidence indicates that the victims’ mental states at the time of the
crime affected their identifications or that defendant had any special
features.
The trial court ruled that there was an independent basis for the
identifications because both victims had prior knowledge of defendant
and they both had the opportunity to view him during the crime. We
hold that the trial court did not clearly err when it ruled that there was
an independent basis for both victims to identify defendant in court. It
is undisputed that they both saw defendant regularly before the crime
and had ample opportunity to see defendant commit the crime. This
provided an independent basis for their subsequent in-court
identifications.
Smith, 2009 WL 3365862, at *2.
Under clearly established Supreme Court law, an identification procedure
violates a defendant’s right to due process if it was so unnecessarily suggestive as to
run the risk of irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293,
301-02 (1967); Neil v. Biggers, 409 U.S. 188 (1972). However, even if the
confrontation was unnecessarily suggestive, if the identification is nonetheless
reliable, it will be admissible. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977);
Carter v. Bell, 218 F.3d 581, 605 (6th Cir. 2000). The “primary evil to be avoided is
-15-
a very substantial likelihood of irreparable misidentification.” Neil, 409 U.S. at 198
(citing Simmons v. United States, 390 U.S. 377, 384 (1968)).
Showing a witness a single photograph of a suspect has been recognized as
being extremely suggestive. See, e.g., Simmons, 390 U.S. at 383 (“This danger [of
misidentification] will be increased if the police display to the witness only the
picture of a single individual who generally resembles the person he saw, or if they
show him the pictures of several persons among which the photograph of a single
such individual recurs or is in some way emphasized.”); Carter v. Bell, 218 F.3d 581,
605-606 (6th Cir. 2000). Nonetheless, in Manson v. Brathwaite, supra, the United
States Supreme Court refused to adopt a per se rule that an identification based upon
examination of a single photograph would be inadmissible at trial. See also United
States v. Causey, 834 F.2d 1277 (6th Cir. 1987) (identification reliable despite single
photo identification).
In judging reliability, the totality of the circumstances are evaluated, including
the factors described in Manson and Biggers: (1) the opportunity of the witness to
view the defendant at the initial observation; (2) the witness’s degree of attention; (3)
the accuracy of the witness’s prior description of the defendant; (4) the level of
certainty shown by the witness at the pretrial identification; and (5) the length of time
between the initial observation and the identification. Manson, 432 U.S. at 114;
-16-
Biggers, 409 U.S. at 199-200.
Applying these factors, the decision of the Michigan Court of Appeals that
there was a basis for the identification independent of the photograph, was neither
contrary to nor an unreasonable application of federal law. The witnesses had
observed Petitioner for a period of months prior to the crime. They did not know his
name, but they were very familiar with his appearance. Indeed, this is hardly a case
of stranger identification at all – it is more akin to witnesses identifying a known
individual as the perpetrator of a crime. The only purpose of showing the photograph
to the victims was to enable the police to match the person they had in custody to the
known person the victims saw commit the crime. The state court adjudication of this
claim was reasonable.
C. Illegal Arrest
Petitioner asserts that his arrest was illegal under the Fourth Amendment
because the police lacked probable cause. He argues that his resulting statement to
police, in which he confessed to the shootings, should have been suppressed as fruits
of the illegal arrest.
Petitioner’s Fourth Amendment challenge to the admission of the evidence in
this case is non-cognizable on federal habeas review. A federal habeas review of a
petitioner’s arrest or search by state police is barred where the state has provided a
-17-
full and fair opportunity to litigate an illegal arrest or a search and seizure claim.
Stone v. Powell, 428 U.S. 465, 494-95 (1976); Machacek v. Hofbauer, 213 F. 3d 947,
952 (6th Cir. 2000). For such an opportunity to have existed, the state must have
provided, in the abstract, a mechanism by which the petitioner could raise the claim,
and presentation of the claim must not have been frustrated by a failure of that
mechanism. Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982).
Therefore, on federal habeas review, a federal court cannot re-examine a
petitioner’s Fourth Amendment claim that his statement to police should have been
suppressed as “poisonous fruit” of his illegal arrest, where the state provided an
opportunity for full and fair litigation of the habeas petitioner’s Fourth Amendment
claim prior to trial. See Wilson v. Straub, 185 F. Supp. 2d 766, 770-71 (E.D. Mich.
2002); See also Walendzinski v. Renico, 354 F. Supp. 2d 752, 759 (E.D. Mich. 2005);
Monroe v. Smith, 197 F. Supp. 2d 753, 766 (E.D. Mich. 2001).
Here, Petitioner had a full and fair opportunity to litigate his Fourth
Amendment claim in the state courts. He filed a motion to suppress his statement in
the trial court, and an evidentiary hearing was held on the claim. After his conviction,
Petitioner presented the claim to the Michigan appellate courts, which denied relief.
Accordingly, Petitioner’s Fourth Amendment claim is barred under Stone.
D. Procedural Default
-18-
The remainder of Petitioner’s claims were not presented to the state courts
during his direct appeal. Rather, he presented them in his motion for relief from
judgment and the appeal that followed its denial. These claims are procedurally
barred because Petitioner did not demonstrate adequate cause or prejudice under
Michigan Court Rule 6.508(D)(3) for failing to raise the claims on direct review.
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless the petitioner can demonstrate “cause” for
the default and actual prejudice as a result of the alleged constitutional violation, or
can 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). 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).
-19-
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to
a defendant if the motion for relief from judgment alleges grounds for relief which
could have been raised on direct appeal, absent a showing of good cause for the
failure to raise such grounds previously and actual prejudice resulting therefrom.
The Supreme Court has noted that “a procedural default does not bar
consideration of a federal claim on either direct or habeas review unless the last state
court rendering a judgment in the case ‘clearly and expressly’ states that its judgment
rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last state
court judgment contains no reasoning, but simply affirms the conviction in a standard
order, the federal habeas court must look to the last reasoned state court judgment
rejecting the federal claim and apply a presumption that later unexplained orders
upholding the judgment or rejecting the same claim rested upon the same ground. Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court rejected
Petitioner’s post-conviction appeal on the ground that “the defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).” These
orders, however, did not refer to subsection (D)(3) nor did they mention Petitioner’s
failure to raise these claims on his direct appeal as their rationale for rejecting his
post-conviction claims. Because the form orders in this case citing Rule 6.508(D) are
-20-
ambiguous as to whether they refer to procedural default or a denial of
post-conviction relief on the merits, the orders are unexplained. See Guilmette v.
Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the last
reasoned state court opinion to determine the basis for the state court’s rejection” of
petitioner’s claims. Id.
The trial court, in rejecting petitioner’s post-conviction claims, indicated that
Petitioner failed to satisfy the “good cause” and “actual prejudice” requirement under
Rule 6.508(D)(3) for failing to raise her claims during his appeal of right. Such
reliance on Rule 6.508(D)(3) was “an adequate and independent state ground” on
which the state could rely to foreclose review. Amos v. Renico, 683 F.3d 720, 733
(6th Cir. 2012).
The fact that the trial judge also discussed the merits of Petitioner’s claims in
addition to invoking the provisions of Rule 6.508(D)(3) to reject Petitioner’s claims
does not alter this analysis. See Alvarez v. Straub, 64 F. Supp. 2d 686, 695 (E.D.
Mich. 1999). 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 remaining claims that he
raised for the first time on post-conviction review are therefore procedurally
-21-
defaulted.
Petitioner alleges ineffective assistance of appellate counsel as cause to excuse
his failure to raise these claims on direct appeal. The Sixth Amendment guarantees
a defendant the right to the effective assistance of counsel on the first appeal by right.
Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, it is well-established that
a criminal defendant does not have a constitutional right to have appellate counsel
raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751
(1983). The United States Supreme Court has explained:
For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the ... goal of vigorous and
effective advocacy.... Nothing in the Constitution or our interpretation
of that document requires such a standard.
Id. at 463 U.S. at 754.
“[A] brief that raises every colorable issue runs the risk of burying good
arguments . . . -in a verbal mound made up of strong and weak contentions.” Id. at
463 U.S. at 753 (citations omitted).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate
advocacy” is the “process of ‘winnowing out weaker arguments on appeal and
-22-
focusing on’ those more likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting
Barnes, 463 U.S. at 751-52). “Generally, only when ignored issues are clearly
stronger than those presented will the presumption of effective assistance of appellate
counsel be overcome.” Monzo v. Edwards, 281 F. 3d 568, 579 (6th Cir. 2002).
Appellate counsel may deliver deficient performance and prejudice a defendant by
omitting a “dead-bang winner,” which is defined as an issue which was obvious from
the trial record and would have resulted in a reversal on appeal. See Meade v.
Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner fails to show that appellate counsel’s performance fell outside the
wide range of professionally competent assistance by omitting the claims that he
raised in his post-conviction motion. Appellate counsel filed a substantial brief on
appeal which raised three substantial claims. Indeed, the claims attacked, as they had
to, the overwhelming strength of the prosecutor’s case by attempting to assert that
the identification testimony and confession should have been suppressed. While the
claims are without merit, Petitioner has not shown that appellate counsel’s strategy
in presenting such claims and not raising additional claims was deficient or
unreasonable. Indeed, Petitioner’s other claims, which do not account for the
overwhelming evidence of his guilt would have done nothing more than water-down
an appellate brief that focused on the two critical aspects of the case. Because the
-23-
defaulted claims are not “dead bang winners,” Petitioner fails to establish cause for
his procedural default of failing to raise these claims on direct review. See McMeans
v. Brigano, 228 F. 3d 674, 682-83 (6th Cir. 2000).
Additionally, Petitioner has not presented any new reliable evidence to support
any assertion of innocence which would allow this Court to consider the procedurally
defaulted claims as grounds 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 declined
to review Petitioner’s defaulted claims on the merits.
Finally, assuming that Petitioner could establish cause for his default, he would
be unable to satisfy the prejudice prong of the exception to the procedural default
rule, because his claims are meritless. 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). Again, for the reasons stated by the trial court in its
alternative analysis, Petitioner fails to show that his claims have merit. Petitioner’s
remaining claims are therefore barred by procedural default.
IV. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of
-24-
appealability 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). When a district court denies
a habeas claim on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the district court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard,
a court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of the claims. Id. at 336-37.
The Court concludes that a certificate of appealability is not warranted in this
case because reasonable jurists could not debate the Court’s assessment of his claims.
The Court will, however, grant Petitioner permission to appeal in forma pauperis,
because an appeal would not be frivolous.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that Respondent’s motion to
dismiss is DENIED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is
DENIED and the matter is DISMISSED WITH PREJUDICE.
-25-
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that permission to appeal in forma pauperis is
GRANTED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 28, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 28, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
-26-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?