Price v. Birkett
Filing
15
Memorandum and Order Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE TITUS PRICE,
Petitioner,
Case No. 12-13399
v.
HON. AVERN COHN
TOM BIRKETT,
Respondent.
_________________________________/
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Tyrone Titus Price,
(Petitioner), is currently on parole supervision with the Michigan Department of
Corrections through the Saginaw Parole Office in Saginaw, Michigan. Petitioner has
filed a pro se habeas petition, in which he challenges his convictions for carrying a
concealed weapon, Mich. Comp. Laws § 750.227; felon in possession of a firearm,
Mich. Comp. Laws § 750.224f; and possession of a firearm in the commission of a
felony, Mich. Comp. Laws § 750.227b. Respondent, through the Attorney General’s
Office, filed a response, arguing that the claims lack merit. For the reasons which
follow, the petition will be denied.
II. Procedural History
Petitioner was convicted of the above offenses following a jury trial in the
Saginaw County Circuit Court.
Petitioner filed an application for leave to appeal with the Michigan Court of
Appeals, in which he was represented by the State Appellate Defender Office.
Petitioner’s appellate counsel raised the three claims presented in his current petition.
The Michigan Court of Appeals denied petitioner leave to appeal “for lack of merit in the
grounds presented.” People v. Price, No. 301584 (Mich.Ct.App. June 15, 2011).
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court,
again raising the same claims. The Michigan Supreme Court denied petitioner leave to
appeal. People v. Price, 490 Mich. 912 (2011).
Petitioner has now filed a petition for writ of habeas corpus, on the following
grounds:
I. The prosecution failed to prove beyond a reasonable doubt the
“concealment” element of carrying a concealed weapon, where none of the
witnesses were in a position to make an “ordinary observation” of Mr. Price.
II. Petitioner Price is entitled to a new trial where defense counsel provided
constitutionally ineffective assistance of counsel by failing to request a jury
instruction based on missing evidence.
III. At a minimum, this Court should remand for the ministerial task of
correcting Petitioner Price’s sentencing information report to reflect a 10-point
score under PRV-7.
III. Background
The material facts leading to petitioner’s conviction are gleaned from the trial
court record as follows.
Just past midnight, on February 22, 2009, Saginaw Police Officer Erik Skabardis
and other police officers were dispatched to a street in Saginaw, Michigan regarding a
fight involving a large group of people. While the police were en route, the dispatcher
informed them that there were reports of shots being fired. Officer Skabardis was a
member of a plainclothes unit and was not in uniform. When Officer Skabardis arrived
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at the location, uniformed officers went to talk to the persons who were in front of a
house. Officer Skabardis followed two sets of footprints that had been placed in the
freshly fallen snow on the ground. These footprints led around to the back of the house.
When Officer Skabardis came to the back of the house, he saw two individuals standing
about sixty feet away. Officer Skabardis identified himself as a police officer and asked
these individuals to come over to him. One of the individuals stayed put. The other
person, later identified as Petitioner, took off running away. Petitioner ran through the
back yards of several neighboring houses, with Skabardis following after him. Petitioner
ran behind a Chevrolet Trailblazer parked in a driveway. When he came out from
behind the vehicle, Petitioner fell down in the snow, at which point, Officer Skabardis
jumped on top of Petitioner, handcuffed him, and took him into custody. At the time of
his arrest, Petitioner was wearing a dark hooded sweatshirt and dark sweat pants.
After Petitioner was placed into custody, Officer Skabardis backtracked, following
Petitioner’s footprints in the snow. Petitioner’s tracks were the only set of tracks that
went between the house and a vehicle, a Chevrolet Trailblazer, near where Petitioner
had been hiding. Between the Trailblazer and the house, Skabardis discovered a board
missing at the base of the porch and that the snow by the porch had been moved.
Officer Skabardis searched underneath the porch and found a .38 revolver. The
revolver was not covered in fresh snow, but instead had liquid water on it, which lead
Officer Skabardis to surmise that it had recently been somewhere warm, because the
temperature outside was below freezing (21 degrees). The .38 revolver was loaded
with five live rounds and one empty chamber. Three of the rounds were Federal .38
Specials and two were Winchester .38 Specials.
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Before Petitioner was placed in a police car for transport, he was patted down for
weapons. Nothing was found. While being transported to the jail, Petitioner “was
fidgeting around” as though he was attempting to remove something from the back of
his pants or shirt or perhaps his underwear. Petitioner claimed that he was moving
around because the handcuffs were uncomfortable, although moving around in the cuffs
would actually tighten them further and make them even less comfortable.
After Petitioner was removed from the police car at the jail, Officer Dennis Howe,
the transporting officer, searched the backseat of his patrol car and found four bullets
underneath the backseat. Officer Howe had searched his car before his shift had
started and knew that the bullets were not there before Petitioner had been transported
in his vehicle. Petitioner had been the only prisoner transported in Officer Howe’s car
that night. Three of the bullets were in a plastic bag, while the fourth had fallen out of a
rip in the bag. All four bullets were Federal .38 Specials.
IV. Analysis
A. Standard of Review
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings unless the adjudication of
the claim–
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
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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 has 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. 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 has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. 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
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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 that have
previously been 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)). Indeed, a
“readiness to attribute error [to a 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.
Here, the AEDPA deferential standard of review applies to Petitioner’s case
where the Michigan Court of Appeals rejected petitioner’s appeal “for lack of merit in
the grounds presented” and the Michigan Supreme Court subsequently denied leave to
appeal in a standard form order, because these orders amounted to a decision on the
merits. See Werth v. Bell, 692 F. 3d 486, 492-94 (6th Cir. 2012); Hardaway v.
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Robinson, 655 F.3d 445, 447, 449, n. 1 (6th Cir. 2011).
B. Petitioner’s Claims
1. Sufficiency of the Evidence
Petitioner first contends that there was insufficient evidence to establish that he
had concealed a weapon to sustain his conviction for carrying a concealed weapon.
Petitioner says because none of the witnesses were in a position to make an “ordinary
observation” of him to determine whether he had actually concealed the firearm.
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). Circumstantial evidence alone is sufficient to
support a conviction, and it is not necessary for the evidence at trial to exclude every
reasonable hypothesis except that of guilt. See Johnson v. Coyle, 200 F. 3d 987, 992
(6th Cir. 2000)(internal quotations omitted).
More importantly, a federal court may not overturn a state court decision that
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rejects a sufficiency of the evidence claim simply because the federal court 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).
The elements of carrying a concealed weapon are:
1. that the defendant carried a weapon; and,
2. that the weapon was concealed on or about the defendant’s person.
People v. Davenport, 89 Mich. App. 678, 682; 282 N.W. 2d 179 (1979).
Concealment is considered an essential element of the offense of carrying a
concealed weapon. See People v. Jackson, 43 Mich. App. 569, 571; 204 N.W. 2d 367
(1972). “Absolute invisibility of a weapon is not indispensable to concealment; the
weapon need not be totally concealed.” People v. Kincade, 61 Mich. App. 498, 502;
233 N.W. 2d 54 (1975). Under Michigan law, a weapon is considered concealed,
“when it is not discernible by the ordinary observation of persons coming in contact with
the person carrying it, casually observing him, as people do in the ordinary and usual
associations of life.” Id. (quoting People v. Jones, 12 Mich. App. 293, 296; 162 N.W.
2d 847 (1968)). Moreover, in a prosecution for carrying a concealed weapon, the fact
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that the weapon may have been in plain view at one point in time does not negate, as a
matter of law, a finding that under any particular set of circumstances there had been
the necessary concealment. See People v. Charron, 54 Mich. App. 26, 30; 220 N.W.2d
216 (1974). Whether a concealment has been established by the evidence presented
in a criminal prosecution is ordinarily a question for the jury. Kincade, 61 Mich. App. at
504.
Here, there was sufficient circumstantial evidence for a rational trier of fact to
conclude beyond a reasonable doubt that petitioner had at some point concealed the
revolver that was recovered by the police. Petitioner was wearing only a hooded sweat
shirt and sweat pants at the time that Officer Skabardis encountered him and
subsequently arrested him. Petitioner did not have a holster in his possession or any
other means of holding a gun on his person out in the open, other than possibly in his
hands. Officer Skabardkis did not observe Petitioner holding a gun in his hands or
anywhere out in the open. In light of the fact that the police had received a dispatch for
“shots fired,” it would be reasonable for the jurors to infer that Officer Skabardkis would
have been in a heightened state of alertness for any person in the area who was
armed with a firearm and would have noticed any person openly carrying such a
weapon. Officer Skabardkis’ failure to see a gun in Petitioner’s hands or anywhere out
in the open is strong circumstantial evidence that Petitioner had concealed the weapon.
In light of the clothing that Petitioner had been wearing and the lack of a holster, the
only reasonable inference was that Petitioner had only concealed locations for him to
carry this gun. The evidence presented thus allowed the jurors to reasonably infer that
petitioner had, at least at some point, concealed the weapon.
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A federal court reviewing a state court conviction on habeas review that is
“faced with a record of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Cavazos, 132 S. Ct. at 6 (quoting Jackson v. Virginia, 443 U.S. at 326). In
light of the evidence in this case, the Court cannot say that the jury’s verdict “was so
insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson,
132 S. Ct. at 2065. Petitioner is therefore not entitled to habeas relief on his first claim.
2. Ineffective Assistance of Counsel
Petitioner next contends that he was deprived of the effective assistance of trial
counsel. 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, petitioner 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 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
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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 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,
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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” over three years ago “is precisely what Strickland
and AEDPA seek to prevent.” Harrington v. Richter, 131 S. Ct. at 789.
Petitioner claims that his trial counsel was ineffective for failing to request an
adverse inference jury instruction based upon the prosecutor’s failure to present to the
jury the results of a fingerprint analysis that had been performed on the weapon.
Petitioner argues that counsel should have requested CJI 2d 5.12, which states that a
jury may infer that a missing prosecution witness’ testimony would have been
unfavorable to the prosecution’s case. Similar instructions have been given when the
police or prosecutor have failed to preserve evidence. See e.g. People v. Hardaway, 67
Mich. App. 82, 85; 240 N.W. 2d 276 (1976)(upholding the trial court’s reading of an
adverse inference instruction when the police erased a tape recording of a police radio
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broadcast).
Petitioner is not entitled to habeas relief on this claim. First, Petitioner has failed
to establish that a fingerprint analysis had been performed on the weapon; Petitioner
says only that Officer Hernandez had submitted the firearm to be tested for fingerprints.
Moreover, assuming that a fingerprint test had been performed, Petitioner would still
not be entitled to an adverse inference instruction because he has neither alleged, nor
shown, that the withholding of any fingerprint analysis was done in bad faith by the
police or the prosecutor. See People v. Cress, 466 Mich. 883; 646 N.W. 2d 469 (2002)
(Petitioner must show prosecutor acted in bad faith in failing to turn over the evidence).
Therefore, trial counsel was not ineffective in failing to request such an instruction from
the court.
Moreover, even if trial counsel was deficient in failing to request an adverse
inference instruction, Petitioner is unable to establish that he was prejudiced by
counsel’s failure to request such an instruction. As outlined above, there was
compelling evidence that linked Petitioner to the weapon recovered by Officer
Skabardis. When Officer Skabardis asked to talk to petitioner, he took off running.
Under Michigan law, flight is relevant to consciousness of guilt. See Johnson v. Burke,
903 F. 2d 1056, 1062 (6th Cir. 1990)(internal citations omitted). In addition, Petitioner’s
footprints were the only footprints observed in the freshly fallen snow that lead past
where the weapon was found. The board underneath the porch where the weapon
was found had been moved, as well as the snow around the porch. The weapon was
warm enough to have liquid water on it in sub-freezing temperatures, thus suggesting
that it had recently been hidden under the porch. Petitioner had .38 caliber ammunition
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on his person that he tried to discard in the police car. Overall, Petitioner has failed to
show that the outcome of the case would have been different had counsel requested
an adverse inference instruction, thus, he is not entitled to habeas relief on his
ineffective assistance of counsel claim.
3. Sentencing Guidelines
Petitioner lastly contends that Prior Record Variable 7 of the Michigan
Sentencing Guidelines was improperly scored. A claim that the trial court incorrectly
scored or calculated his sentencing guidelines range under the Michigan Sentencing
Guidelines is not a cognizable claim for federal habeas review, because it is essentially
a state law claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725 (6th Cir. 2007); Howard
v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003); Thomas v. Foltz, 654 F. Supp. 105, 107
(E.D. Mich. 1987). “Petitioner has no state-created interest in having the Michigan
Sentencing Guidelines applied rigidly in determining his sentence.” See Mitchell v.
Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009)(citing Shanks v. Wolfenbarger,
387 F. Supp. 2d 740, 752 (E.D. Mich. 2005)). “[I]n short, petitioner had no federal
constitutional right to be sentenced within Michigan’s guideline minimum sentence
recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any
error by the trial court in calculating his guideline score would not merit habeas relief.
Id. As such, Petitioner is not entitled to habeas relief on this claim.
V. Conclusion
For the reasons stated above, the state courts’ rejection of Petitioner's claims
did not result in decisions that were contrary to Supreme Court precedent, an
unreasonable application of Supreme Court precedent, or an unreasonable
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determination of the facts. Accordingly, the petition is DENIED.
Furthermore, reasonable jurists would not debate the Court's assessment of
Petitioner's claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2). 1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: April 10, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, April 10, 2013, by electronic and/or ordinary mail.
S/Sakne Chami
Case Manager, (313) 234-5160
1
“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.
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