Disney v. Burt
Filing
35
OPINION and ORDER (1) Denying Petitioner's 33 MOTION for Reconsideration of the Order Denying Release on Bond, (2) Denying Petitioner's 34 MOTION for Disqualification, (3) Denying the 1 Habeas Corpus Petition, and (4) Declining to Issue a Certificate of Appealability, But Granting Leave In Forma Pauperis on Appeal. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CLIFFORD DISNEY,
Petitioner,
v.
Civil Action No. 12-13828
Honorable Denise Page Hood
JEFFREY LARSON,
Respondent.
______________________________/
OPINION AND ORDER
(1) DENYING PETITIONER’S MOTION FOR RECONSIDERATION
OF THE ORDER DENYING RELEASE ON BOND (dkt. #33),
(2) DENYING PETITIONER’S MOTION FOR DISQUALIFICATION (dkt. #34),
(3) DENYING THE HABEAS CORPUS PETITION (dkt. #1), AND
(4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter is pending before the Court on a pro se habeas corpus petition under
28 U.S.C. § 2254.
Petitioner Clifford Disney, a state prisoner at Central Michigan
Correctional Facility in St. Louis, Michigan, is challenging his state convictions for
possession of a controlled substance, Mich. Comp. Laws § 333.7403(2)(b)(ii), and
operating a vehicle while under the influence of a controlled substance, Mich. Comp. Laws
§ 257.625(1)(a). Petitioner raises two Fourth Amendment claims, a challenge to the
sufficiency of the evidence at the preliminary examination, a jurisdictional claim, and a
challenge to the sufficiency of the evidence at trial. He also alleges that he was denied trial
counsel at a critical stage of the proceedings and that his trial and appellate attorneys were
ineffective. Respondent Jeffrey Larson urges the Court through counsel to deny the
petition.
The Court has concluded from a review of the pleadings and record that
Petitioner’s claims do not warrant habeas relief. Accordingly, the habeas petition will be
denied.
I. Background
A. The Trial and Direct Appeal
The charges against Petitioner arose from an accident that occurred on an interstate
highway in Detroit, Michigan. Liane Garmany testified at Petitioner’s trial in Wayne County
Circuit Court that she was driving eastbound on I-94 about noon on February 26, 2005.
She noticed that the man in the small, light-colored car behind her was swerving on the
highway. When the traffic became congested, she slowed down, and the man behind her
slammed on his brakes. The man fish-tailed and hit the left side of her car, which spun
around six times. She pulled over to the side of the road and called the police. The car
behind her had stalled, and she heard the driver trying to start his car. Then she saw him
pull over to the side of the road directly behind her car. When the police arrived about ten
minutes later, she explained what happened. The officers subsequently talked to the
people in the vehicle behind her.
Ms. Garmany identified Petitioner at trial as the driver of the car that hit her car, and
she claimed that the man’s female companion was seated in the front passenger seat. She
thought that Petitioner was drunk because, when he got out of his vehicle, his balance was
not good.
Michigan state trooper Patrick Walter testified that he and Trooper Jack Taeff
responded to the accident on I-94 near the Mt. Elliott exit. After speaking with Ms.
Garmany, he approached Petitioner who was attempting to start his vehicle. Petitioner
informed him that the vehicle in front of him had applied its brakes and that he rear-ended
2
the vehicle when he was unable to stop. Petitioner’s speech was slurred, his eyes were
glassy, and he had a difficult time maintaining his balance when he got out of the vehicle.
He identified himself, but then reached into the pocket of his jacket and produced a
prescription bottle bearing the name Jac Simpson. Petitioner informed Trooper Walter that
he was transporting the medication to Mr. Simpson. Trooper Walter, however, noticed that
the bottle contained two different types of medication. He seized the pills and later placed
them in evidence at the state police post.
Continuing, Trooper Walter stated that he gave Petitioner a couple of sobriety tests.
Petitioner was unable to recite the alphabet coherently, and he failed to correctly follow
Trooper Walter’s instructions to count backwards from the number seventy-six to the
number sixty-five. Trooper Walter arrested Petitioner after concluding that Petitioner was
under the influence of a controlled substance.
At the state police post, Petitioner refused to submit to a blood test. Trooper Walter
obtained a search warrant for a blood draw, but when he went back to Petitioner’s cell,
Petitioner was extremely lethargic and unable to rise to his feet. An ambulance was
summoned to transport Petitioner to the hospital where the blood test was completed.
State Trooper Jack Taeff testified that he was working with Trooper Walter on
February 26, 2005, and that the two of them responded to the accident at I-94 near Mt.
Elliott. He (Taeff) approached the occupant of the first vehicle, but he did not recall her
saying that her car had spun around.
Trooper Taeff further testified that, after talking to the occupant of the first vehicle,
he walked back to the second vehicle, which had two occupants. Petitioner was seated in
the driver’s seat, trying to start the vehicle. He (Taeff) gathered information from the
3
passenger as Trooper Walter made contact with the driver, whom Trooper Taeff identified
at trial as Petitioner. Trooper Taeff stated that, when Petitioner exited the vehicle, he
stumbled into the far right-hand lane of traffic and had to be escorted to the shoulder of the
road. Trooper Taeff described Petitioner as quiet, but he said that Petitioner’s speech was
“very slurred” and that he appeared to be “under the influence.” Trooper Taeff claimed that
Petitioner had two different types of pills in his pocket and that the prescription bottle had
Jac Simpson’s name on it.
Geoffrey French testified as an expert in the area of forensic toxicology. He claimed
that the blood specimen taken from Petitioner contained three drugs: Alprazolam, a
schedule four controlled substance commonly known as Xanax; Carisprodol, a muscle
relaxant known as Soma, which requires a prescription, but is not a controlled substance;
and Meprobamate, which is a schedule four controlled substance, even though it is a
breakdown product of Carisprodol. Mr. French explained that an individual who had
ingested Soma and Xanax would exhibit side effects commonly associated with alcohol,
such as unsteadiness and slurred speech.
The parties stipulated that a chemical analysis of one of the pills seized from
Petitioner revealed Alprazolam (Xanax) and that the other type of pill in the prescription
bottle taken from Petitioner was not a controlled substance. Petitioner represented himself
at trial and did not testify, but he called Liane Garmany and Trooper Patrick Walter as
witnesses.
Ms. Garmany testified on direct examination by Petitioner that Petitioner had hit the
side of her car, and even though her car spun around six times, she did not hit any other
cars. She also admitted that she did not know what was going on inside Petitioner’s vehicle
4
when he was swerving on the road.
Trooper Walter testified on direct examination by Petitioner that, according to his and
Trooper Taeff’s report of the accident, Petitioner’s car hit the rear, not the side, of Ms.
Garmany’s car. Trooper Walter also testified that it was a typical collision and that he did
not see any visible injuries on Petitioner.
In his closing argument, Petitioner stated that Ms. Garmany was not a credible
witness because she testified that, even though her car spun around six times on a
congested highway, she did not hit another car. Petitioner argued that his swerving did not
necessarily mean he was intoxicated and that he may have taken the pills after the accident
and, therefore, was not intoxicated at the time of the accident. He also argued that the
other occupant in his car could have been the driver. As for the possession charge, he
maintained that he was on his way to Mr. Simpson’s house and that there was no law
against delivering a person’s prescription drugs.
On August 24, 2006, the jury found Petitioner guilty, as charged, of possession of
a controlled substance, Mich. Comp. Laws § 333.7403(2)(b)(ii), and operating a vehicle
while under the influence of a controlled substance, Mich. Comp. Laws § 257.625(1)(a).
On September 15, 2006, the trial court sentenced Petitioner as a habitual offender, fourth
offense, to two concurrent terms of five to fifteen years in prison.
In an appeal as of right, Petitioner argued through counsel that the trial court erred
in departing upward from the state sentencing guidelines. In a pro se supplemental brief,
Petitioner argued that (1) his trial attorney was ineffective for failing to request appointment
of an expert witness on eyewitness identification, (2) the prosecutor failed to prove all the
elements of the crime, (3) the trial court erred in not instructing the jury that the prosecutor
5
must prove all elements of the crime beyond a reasonable doubt, and (4) there was
insufficient evidence that he was the driver of the vehicle and under the influence of a
controlled substance at the time of the accident. The Michigan Court of Appeals affirmed
Petitioner’s convictions and sentences, but remanded his case so that the trial court could
amend the judgment of sentence to reflect the correct citation for one of the crimes. See
People v. Disney, No. 273367, 2008 WL 162000 (Mich. Ct. App. Jan. 17, 2008).
In a subsequent application for leave to appeal in the Michigan Supreme Court,
Petitioner alleged that (1) the prosecutor failed to prove all the elements of the controlledsubstance crime, (2) his trial attorney was ineffective for failing to contact Mr. Simpson and
Jill Najarian, and (3) the prosecutor failed to prove that Petitioner was the driver of the
vehicle and intoxicated before the accident. On May 27, 2008, the Michigan Supreme
Court denied leave to appeal because it was not persuaded to review the issues. See
People v. Disney, 481 Mich. 880; 748 N.W.2d 850 (2008) (table).
B. The First Habeas Petition and State Collateral Proceedings
In 2009, Petitioner filed his first habeas corpus petition in this District. He alleged
that (1) the police lacked probable cause to arrest him, (2) there was insufficient evidence
to convict him of possessing a controlled substance, (3) his trial attorney was ineffective,
and (4) he was denied counsel at trial. United States District Judge Lawrence P. Zatkoff
dismissed the habeas petition without prejudice for failure to exhaust state remedies for all
the claims. See Disney v. Bergh, No. 09-11385 (E.D. Mich. July 21, 2010).
Petitioner subsequently filed a motion for relief from judgment in the state trial court.
He alleged in his motion that (1) Trooper Walter lacked probable cause to arrest him, (2)
the state magistrate lacked probable cause to issue the search warrant, (3) the state district
6
court lacked probable cause to bind him over to circuit court, (4) the state trial court lacked
jurisdiction, (5) his trial attorney was ineffective, and (6) he was denied counsel at a critical
stage of the proceedings. The trial court denied Petitioner’s motion on grounds that the
three “probable cause” issues could have been raised on direct appeal, the bindover gave
the court jurisdiction, the court was precluded from reviewing Petitioner’s ineffectiveassistance-of-counsel claim, and Petitioner’s claim about being denied counsel was
“incomprehensible.”
Petitioner raised the same six issues and two additional issues in the Michigan Court
of Appeals. The two additional issues alleged that appellate counsel was ineffective and
that the prosecutor failed to prove that Petitioner possessed a controlled substance in
violation of Mich. Comp. Laws § 333.7403. The Michigan Court of Appeals denied leave
to appeal on the ground that Petitioner failed to establish entitlement to relief under
Michigan Court Rule 6.508(D). See People v. Disney, No. 302386 (Mich. Ct. App. Sept.
20, 2011). Petitioner raised all eight issues in an application for leave to appeal in the
Michigan Supreme Court, which also denied leave to appeal for failure to establish
entitlement to relief under Rule 6.508(D). See People v. Disney, 491 Mich. 941; 815
N.W.2d 485 (2012) (table).
C. The Current Petition
On August 29, 2012, Petitioner filed the instant habeas corpus petition, which
alleges that: (1) Trooper Walker lacked probable cause to arrest Petitioner; (2) the state
magistrate lacked probable cause to authorize a search warrant; (3) the state district court
lacked probable cause to bind Petitioner over to circuit court; (4) the trial court lacked
jurisdiction; (5) the trial court deprived Petitioner of counsel at a critical stage; (6) trial
7
counsel was ineffective; (7) appellate counsel was ineffective; and (8) the prosecutor failed
to prove that Petitioner was in possession of a controlled substance. The Court initially
dismissed the petition without prejudice because Petitioner failed to either pay the filing fee
or submit a proper application for leave to proceed in forma pauperis. See Opinion and
Order Dismissing Case for Failure to Correct Deficiency (dkt. #10).
Petitioner subsequently asked the Court to set aside the order of dismissal and
permit him to proceed in forma pauperis. The Court granted Petitioner’s motions and reopened this case. See Order dated May 28, 2013 (dkt. #18). On December 12, 2013,
Respondent filed a responsive pleading, and on January 9, 2014, Petitioner filed his reply.
More recently, Petitioner filed a motion to have the Court disqualify itself and a motion for
reconsideration of his request for release on bond.
II. The Pending Motions
A. The Motion for Reconsideration
Petitioner has asked the Court to reconsider its prior orders denying him release on
bond. He argues that he should be released pending a decision on his habeas petition
because he was convicted of minor offenses and because the Court has taken more than
a year to adjudicate his petition. Petitioner asserts that he has served nine years of his
sentence and that the only reason the Michigan Parole Board refuses to release him on
parole is because he will not admit guilt.
Petitioner’s request for release pending a decision on his habeas petition is moot,
given this decision to deny his habeas petition. The motion also is untimely under the
Court’s Local Rules because it was filed more than fourteen days after entry of the last
order denying release on bond. L.R. 7.1(h)(1) (E.D. Mich. July 1, 2013).
8
The delay in this case, moreover, has not been extraordinarily long, and Petitioner
has not presented “substantial questions” in his habeas petition, nor shown that “some
circumstance mak[es] []his application exceptional and deserving of special treatment in
the interests of justice.” Aronson v. May, 85 S. Ct. 3, 5 (1964). For all these reasons,
Petitioner’s motion for reconsideration (dkt. #33) is DENIED.
B. The Motion for Disqualification
In his motion to have the Court disqualify itself, Petitioner alleges that the Court is
biased. To support this allegation, Petitioner points to the delayed rulings on his motions
for extension of time. Petitioner correctly observes that Court took several months to rule
on two of his motions for extension of time, but granted Respondent’s motion for an
enlargement of time in one day.
In United States v. Adams, 722 F.3d 788 (6th Cir. 2013), the court explained that
[f]ederal judges “shall disqualify [themselves] in any proceeding in
which [their] impartiality might reasonably be questioned” or “[w]here [they
have] a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a),
(b)(1). “A district court judge must recuse himself where a reasonable person
with knowledge of the all (sic) facts would conclude that the judge’s
impartiality might reasonably be questioned.” [United States v.] Dandy, 998
F.2d [1344, 1349 (6th Cir. 1993)] (quotation marks omitted).
Id. at 837.
This Court has no personal bias or prejudice against Petitioner and no personal
knowledge of disputed evidentiary facts. The Court’s delay in ruling on Petitioner’s motions
is due to its congested docket. The prompt ruling on Respondent’s motion for extension
of time likely was due to the fact that Respondent submitted a proposed order with its
motion and because there were no additional issues to take into consideration. Cf.
9
Petitioner’s motion for extension of time (dkt. #17), filed at the same time as his motion to
set aside the opinion and order dismissing his case and denying bond (dkt. #14).
A reasonable person with knowledge of the facts would not question the Court’s
impartiality in this case. The Court therefore DENIES Petitioner’s motion for the Court to
disqualify itself (dkt. #34). The Court will proceed to address Petitioner’s habeas claims,
using the following standard of review.
III. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons
in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, __, 131
S. Ct. 770, 783 (2011). Pursuant to § 2254, the Court may not grant a state prisoner’s
application for the writ of habeas corpus unless the state court’s adjudication of the
prisoner’s claims on the merits
(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.
28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may
grant the writ 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. Under the “unreasonable application” clause [of §
2254(d)(1)], a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s
10
case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for Part
II). “[A] federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Id. at 411.
The AEDPA “imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 131 S. Ct. at 786
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas
corpus, a state prisoner must show that the state court’s ruling on a claim “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.
IV. Analysis
A. Probable Cause to Arrest and to Search (claims one and two)1
1
Respondent argues that Petitioner’s first claim (no probable cause to arrest)
and Petitioner’s seventh claim (ineffective assistance of appellate counsel) are
procedurally defaulted. The Supreme Court has defined a “procedural default” as “a
critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89
(1997). A procedural default “is not a jurisdictional matter,” id., and to obtain relief on
claims that were procedurally defaulted in state court, a federal habeas petitioner “must
establish cause and prejudice for the defaults” and “also show that the claims are
meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). This Court “cut[s]
11
Petitioner alleges that Trooper Patrick Walter lacked probable cause to arrest him
and that the state magistrate lacked probable cause to sign a warrant for the taking of a
blood sample from Petitioner. Petitioner contends that Trooper Walter arrived at the crime
scene after the accident and did not witness Petitioner operating the vehicle; instead,
Trooper Walter merely observed Petitioner sitting in the driver’s seat of the vehicle.
1. Stone v. Powell
Petitioner raised his “probable cause” claims in his motion for relief from judgment
and the subsequent appeal. The trial court was the only court to address the claims in a
reasoned opinion. It determined that the claims were procedurally defaulted because
Petitioner failed to show “good cause” for not raising the claims on direct appeal and “actual
prejudice” from the alleged irregularities.
This Court rejects Petitioner’s claims because he is raising Fourth Amendment
issues, and the Supreme Court has held that, “where the State has provided an opportunity
for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976)
(footnote omitted). “[T]he Powell ‘opportunity for full and fair consideration’ means an
available avenue for the prisoner to present his claim to the state courts, not an inquiry into
the adequacy of the procedure actually used to resolve that particular claim.” Good v.
Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), petition for cert. filed, (U.S. Apr. 3, 2014) (No.
14-6114).
to the merits here, since the cause-and-prejudice analysis adds nothing but complexity
to the case.” Id.
12
In Michigan, a defendant may challenge the legality of a search and seizure in a
motion to suppress evidence, which may be brought before or even during trial. People v.
Ferguson, 376 Mich. 90, 94-95; 135 N.W.2d 357, 359 (1965). Petitioner could have raised
his Fourth Amendment claims in a motion to suppress evidence either before or during trial,
and he ultimately raised the issues in his motion for relief from judgment and on appeal
from the trial court’s decision on his motion. The state courts rejected Petitioner’s Fourth
Amendment claims. “That suffices to preclude review of the claim[s] through a habeas
corpus petition under Stone v. Powell.” Good, 729 F.3d at 640; see also Rashad v. Lafler,
675 F.3d 564, 570 (6th Cir. 2012) (stating that, because the petitioner “had ample
opportunities to present [his] claims in state court,” he was precluded from obtaining
habeas relief.
2. On the Merits
Petitioner’s claims lack merit even assuming that they are cognizable on habeas
review.
The Fourth Amendment, applicable to the States through the Fourteenth
Amendment to the United States Constitution, Bailey v. United States, 133 S.Ct. 1031,
1037 (2013), provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. CONST. amend. IV.
Whether an “arrest was constitutionally valid depends . . . upon whether, at the
moment the arrest was made, the officers had probable cause to make it—whether at that
moment the facts and circumstances within their knowledge and of which they had
13
reasonably trustworthy information were sufficient to warrant a prudent man in believing
that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S.
89, 91 (1964). Three eyewitnesses in this case identified Petitioner as the person seated
in the driver’s seat of the car that rear-ended Ms. Garmany’s car. The evidence also
established that Petitioner was under the influence of a controlled substance immediately
before and shortly after the accident. He was swerving before the accident, and after the
accident his eyes were glassy, his speech was slurred, he had trouble maintaining his
balance, and he was unable to correctly complete the verbal sobriety tests.
As for the possession charge, Petitioner pulled a prescription pill bottle from his
pocket while Trooper Walter was questioning him. Although he informed Trooper Walter
that he was delivering the drugs to Mr. Simpson, the prescription bottle contained two types
of pills. This was an indication that Petitioner was not delivering a prescription medication
to someone. The Court concludes that there was probable cause to arrest Petitioner and
to charge him with possession of a controlled substance and driving under the influence
of a controlled substance.
As for the blood sample taken from Petitioner following his arrest, it was authorized
by a warrant. This was consistent with Supreme Court cases holding that the Fourth
Amendment generally requires police officers to obtain a warrant in impaired-driving cases
before a blood sample is drawn. See Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013).
And because Petitioner’s condition at the scene of the accident suggested that he had been
driving under the influence of alcohol or a controlled substance, probable cause existed to
issue the warrant. “[P]robable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243
14
n. 13 (1983).
To summarize, there was probable cause to arrest Petitioner, to seize the pills in his
possession, and to take a blood sample from him. His Fourth Amendment claims therefore
lack merit even if the claims were not barred by Stone v. Powell.
B. Probable Cause to Transfer Jurisdiction to the State Circuit Court
(claim three)
Petitioner alleges that the state district court lacked probable cause at the
preliminary examination to transfer jurisdiction to Wayne County Circuit Court. According
to Petitioner, there was insufficient evidence that he was operating a vehicle while under
the influence of a controlled substance and that he illegally possessed a controlled
substance. Petitioner maintains there was no evidence that he had actual physical control
of the vehicle or that he knowingly possessed a controlled substance.
Petitioner raised this claim in his motion for relief from judgment and subsequent
appeal. The trial court rejected the claim in part because Petitioner failed to raise the claim
on direct appeal. The trial court pointed out that Petitioner previously raised the issue in
a motion to quash, which the trial court denied after concluding there was probable cause
to bind Petitioner over on the charges. The trial court also stated that the issue was moot
because the jury found Petitioner guilty of the crimes.
This Court finds no merit in Petitioner’s claim because he had no constitutional right
to a probable cause determination at a preliminary examination, Gerstein v. Pugh, 420 U.S.
103, 119, 123, 125 n. 26 (1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir. 1965), and
an “illegal arrest or detention does not void a subsequent conviction.” Pugh, 420 U.S. at
119. Consequently, the state district court’s decision to transfer jurisdiction to the state
15
circuit court on the charged offenses is not a basis for habeas corpus relief.
Furthermore, in Michigan, the prosecutor “need present only enough evidence on
each element of the charged offense to lead ‘a person of ordinary prudence and caution
to conscientiously entertain a reasonable belief of [the defendant’s] guilt.’ ” People v.
Perkins, 468 Mich. 448, 452; 662 N.W.2d 727, 730 (2003) (quoting People v. Justice, 454
Mich. 334, 344; 562 N.W.2d 652, 657 (1997)). Trooper Patrick Walter testified at the
preliminary examination that, when he approached Petitioner at the accident scene,
Petitioner was seated in the driver’s seat, attempting to start his vehicle. Petitioner
informed Trooper Walter that he hit the vehicle in front of him when the vehicle braked and
that he was unable to stop. Petitioner’s speech was slurred, his movements were lethargic,
and he displayed poor balance. His eyes were glassy, and he was unable to correctly
complete two sobriety tests involving the alphabet and numbers. Petitioner appeared to
be under the influence of some sort of substance, although Trooper Walter was unable to
say with any certainty whether Petitioner injected the controlled substance before the
accident. Trooper Walter did not smell anything on Petitioner, and he concluded that
Petitioner was possibly under the influence of a controlled substance.
Trooper Walter also testified at the preliminary examination that, when he asked
Petitioner for his license, Petitioner was unable to produce it. Eventually, Petitioner put his
hand in a pocket of his jacket and produced a bottle containing prescription pills. The bottle
had the name “Jac Simpson” on it, and even though Petitioner claimed to be transporting
the medication to Mr. Simpson, the bottle appeared to contain two different types of pills.
The parties stipulated at the examination that (1) a blood sample taken from
16
Petitioner revealed the presence of Alprazolam, Carisprodol, and Meprobamate and (2) an
analysis of the pills in evidence revealed the presence of the controlled substance
Alprazolam. This stipulation and Trooper Walter’s testimony provided sufficient evidence
to establish that Petitioner possessed a controlled substance without a valid prescription
and that he was operating a vehicle while under the influence of a controlled substance.
There was probable cause to bind him over for trial.
C. The Trial Court’s Jurisdiction (claim four)
Petitioner asserts that the state trial court failed to hold a hearing to determine
whether he had two valid prior convictions for operating under the influence. Petitioner
argues that he was not represented by counsel during the prior proceedings for operating
under the influence and, therefore, his prior convictions were invalid. Absent the two prior
convictions, he claims that the charge against him was only a misdemeanor and, therefore,
the state circuit court lacked jurisdiction.2
The state trial court held on collateral review of Petitioner’s convictions that the
bindover to circuit court gave the court jurisdiction. No state court directly addressed the
validity of Petitioner’s prior convictions. Nevertheless, the contention that the state trial
court lacked subject matter jurisdiction is meritless because a “[d]etermination of whether
a state court is vested with jurisdiction under state law is a function of the state courts, not
2
State circuit courts do not have jurisdiction of criminal cases involving only
misdemeanors. People v. Bidwell, 205 Mich. App. 355, 358; 522 N.W.2d 138, 139
(1994). It was Petitioner’s two prior convictions for operating a vehicle under the
influence of alcohol or a controlled substance that elevated the charge incurred on
February 26, 2005, to a felony. See Mich. Comp. Laws § 257.625(9)(c) (stating that,
“[i]f the violation occurs after 2 or more prior convictions . . . the person is guilty of a
felony . . . ”).
17
the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976).
Furthermore, Petitioner has failed to support his claim with documentation showing
that he was not represented by counsel during the prior misdemeanor proceedings and that
he did not waive counsel during those proceedings. Even if he lacked counsel during the
prior misdemeanor proceedings and did not waive counsel, the convictions were valid if
they did not result in terms of imprisonment. Scott v. Illinois, 440 U.S. 367, 373-74 (1979).
Petitioner had not stated what his punishment was for the prior convictions, and even
assuming that he was incarcerated for the prior convictions, a prior, uncounseled
misdemeanor conviction can be used to enhance punishment for a subsequent conviction.
Nichols v. United States, 511 U.S. 738, 748-49 (1994). Petitioner’s prior misdemeanor
convictions for operating a vehicle under the influence were used to enhance the charge
and punishment for his driving offense in the case under attack here. Therefore, he is not
entitled to habeas relief on the basis of his jurisdictional claim.
D. Deprivation of Counsel (claim five)
Petitioner alleges that the state trial court deprived him of trial counsel. He claims
that he informed the state trial court by letter that he wanted another attorney because his
attorney refused to investigate potential defense witnesses. According to Petitioner, the
state trial court called him to the bench on the first day of trial and told him that he could not
have another lawyer. Petitioner claims that this was a complete denial of counsel at a
critical stage. On state collateral review, however, the trial court found Petitioner’s claim
“incomprehensible,” because Petitioner was represented by counsel during trial and at
sentencing.
“It is beyond dispute that ‘[t]he Sixth Amendment safeguards to an accused who
18
faces incarceration the right to counsel at all critical stages of the criminal process.’”
Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting Iowa v. Tovar, 541
U.S. 77, 80–81 (2004)). A trial obviously is a “critical stage” of the criminal process
because it holds “significant consequences for the accused.” Bell v. Cone, 535 U.S. 685,
695-96 (2002).
Petitioner opted to represent himself at trial, and he had standby counsel, who
assisted him. The trial court, moreover, described the letter he received from Petitioner as
stating that Petitioner wanted to represent himself. On the first day of trial, Petitioner
confirmed on the record that he wanted to represent himself, knowing that he would be
required to follow the court rules and that, if convicted as a habitual felony offender, he
could be sentenced to life imprisonment. When the trial court asked Petitioner whether he
wanted to retain his present attorney as standby counsel, Petitioner responded that it made
no difference to him. He then assured the trial court that he was not taking any prescription
medication, that he was not under the influence of alcohol, and that he had never been
diagnosed or treated for any psychiatric disorders.
The trial court concluded that
Petitioner’s assertion of his right to self representation was unequivocal, that he was
competent to waive his right to counsel, and that he sincerely wished to proceed on his
own. The court nevertheless ruled that current counsel should remain in court as standby
counsel. (Trial Tr. Vol. I, 4-7, Aug. 23, 2006.)
Defense counsel subsequently served as standby counsel and assisted Petitioner
on occasion during the trial. Further, Petitioner’s waiver of appointed counsel appears to
have been a “ ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant
circumstances.’ ” Tovar, 541 U.S. at 81 (quoting Brady v. United States, 397 U.S. 742, 748
19
(1970)). As such, there is no merit in Petitioner’s claim that he was denied counsel at trial.
Although Petitioner contends that the trial court should have questioned him about his
request for substitution of counsel and given him a reason for the denial of substitute
counsel, he had no right to appointed counsel of choice. See Kaley v. United States, 134
S.Ct. 1090, 1107 (2014) (stating that “the right to counsel of choice is . . . not absolute” and
that “[a] defendant has no right to choose counsel he cannot afford”); see also United
States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (stating that “the right to counsel of
choice does not extend to defendants who require counsel to be appointed for them”). The
Court therefore declines to grant relief on Petitioner’s claim that he was denied counsel at
a critical stage of the proceedings.
E. Trial Counsel (claim six)
Petitioner alleges that his trial attorney was ineffective because the attorney failed
to investigate any witnesses. The trial court rejected this claim during post-conviction
proceedings on the mistaken basis that the issue was raised and rejected by the Michigan
Court of Appeals on direct appeal. On direct appeal, the issue was whether Petitioner’s
attorney was ineffective for failing to request an expert on the unreliability of eyewitness
testimony. Petitioner has not made an affirmative showing that an expert’s testimony would
have likely affected the outcome of his trial. See Malcum v. Burt, 276 F.Supp. 2d 664, 679
(E.D. Mich. 2003). A defense counsel is not required to call an expert witness about the
problems with eyewitness testimony. See Perkins v. McKee, 411 F. App’x. 822, 833 (6th
Cir. 2011)(A case involving identification issues)). Petitioner’s claim has no merit in any
event, because Petitioner represented himself at trial. “[A] defendant who elects to
represent himself cannot thereafter complain that the quality of his own defense amounted
20
to a denial of ‘effective assistance of counsel.’ ” Faretta v. California, 422 U.S. 806, 834
n. 46 (1975).
1. Clearly Established Law
Even if Petitioner did not waive his claim about trial counsel by representing himself,
he can prevail on his claim only if he shows that his attorney’s “performance was deficient”
and “that the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). The “deficient performance” prong “requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
The “prejudice” prong of the Strickland test requires demonstrating “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “This does not require a showing that counsel’s actions
‘more likely than not altered the outcome,’” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792 (quoting Strickland, 466 U.S.
at 693).
Petitioner claims that his attorney should have investigated two witnesses who would
have helped his defense.
Defense attorneys have “a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. “This duty includes the obligation to investigate
all witnesses who may have information concerning his or her client’s guilt or innocence.”
Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). “[F]ailure to conduct a reasonable
investigation into . . . ‘a known and potentially important witness’ violate[s] [a defendant’s]
Sixth Amendment right to the effective assistance of counsel.”
21
Id. at 259 (quoting
Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987)).
2. Application
Petitioner argues that his attorney should have contacted Jill Najarian, who was the
passenger in his car at the time of the accident, and Jac Simpson, whose name was on the
prescription pill bottle that Petitioner possessed at the time. Petitioner alleges that Ms.
Najarian would have testified that she was driving his vehicle at the time of the accident and
that Petitioner was not under the influence of any intoxicating substance until after the
accident. Petitioner maintains that Mr. Simpson would have testified that he authorized
Petitioner to pick up his prescription from the pharmacy. If trial counsel had investigated
these two witnesses, Petitioner argues the outcome of the trial would have been different.
Ms. Garmany testified that Petitioner was driving the car that collided with her car
(Trial Tr. Vol. I, 120-21, Aug. 23, 2006), and the two state troopers who testified at
Petitioner’s trial testified that Petitioner was seated in the driver’s seat when they
approached him shortly after the collision. (Id. at 134 (Trooper Walter) and 151-52
(Trooper Taeff)). Petitioner himself admitted to Trooper Walter that, when the vehicle in
front of him braked, he was unable to stop and subsequently rear-ended the vehicle. (Id.
at 135.) Given this testimony, there is not a reasonable probability that the outcome of the
trial would have been different if defense counsel had investigated and produced Ms.
Najarian to testify that she was driving the car, which hit Ms. Garmany’s car.
As for Jac Simpson, Petitioner has not established that Mr. Simpson was willing and
available to testify that he authorized Petitioner to pick up his prescription. Even if Simpson
had so testified, the testimony likely would not have persuaded the jury to acquit Petitioner
because there was more than one kind of pill in the prescription bottle, and there was
22
testimony that Petitioner’s blood contained the controlled substance found in the bottle.
This suggested that Petitioner had ingested the controlled substance and was not
delivering the pills to someone else.
Petitioner has failed to demonstrate a reasonable probability that the result of his trial
would have been different if his attorney had investigated and produced Mr. Simpson and
Ms. Najarian. The Court therefore declines to grant relief on Petitioner’s ineffectiveassistance-of-counsel claim.
F. Appellate Counsel (claim seven)
Petitioner alleges that his appellate attorney was ineffective for failing to raise his
other issues on direct appeal. None of the state courts addressed the merits of this claim.
Although an appellate attorney’s failure “to raise an issue on appeal can amount to
constitutionally ineffective assistance,” Jalowiec v. Bradshaw, 657 F.3d 293, 321 (6th Cir.
2011), cert. denied, 133 S. Ct. 107 (2012), an attorney is not required to raise every nonfrivolous issue suggested by the defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983).
To demonstrate that appellate counsel was ineffective, Petitioner must show that (1) his
attorney unreasonably failed to discover and raise nonfrivolous issues on appeal and (2)
there is a reasonable probability he would have prevailed on appeal if his appellate attorney
had raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland , 466
U.S. at 687-91, 694); Moore v. Mitchell, 708 F.3d 760, 792 (6th Cir.), cert. denied, 134 S.
Ct. 693 (2013).
For the reasons given in the discussion above, the issues that Petitioner claims his
attorney should have raised on appeal lack merit, and there is not a reasonable probability
that Petitioner would have prevailed on appeal had counsel raised the issues. An appellate
23
attorney is not ineffective for failing to raise a meritless issue. Shaneburger v. Jones, 615
F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
Habeas relief, therefore, is not warranted on Petitioner’s claim about appellate counsel.
G. The Sufficiency of the Evidence (claim eight)
In his eighth and final claim, Petitioner alleges that the prosecutor failed to prove that
he possessed a controlled substance in violation of Mich. Comp. Laws § 333.7403.
Petitioner claims that he had a legal right to possess Jac Simpson’s prescription and,
because the prosecution presented no evidence that the prescription was illegally obtained,
the Court must assume that the prescription was legal. The Michigan Court of Appeals
addressed this issue on direct appeal and concluded that sufficient evidence existed to
support Petitioner’s conviction.
1. Clearly Established Federal Law
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged.” In re Winship, 397 U.S. 358, 364 (1970). After Winship, the critical inquiry
on habeas 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. But this inquiry 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.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (internal citation and footnote omitted)
(emphases in original).
24
2. Application
“The Jackson standard must be applied ‘with explicit reference to the substantive
elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347,
351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16). Petitioner was charged with
violating Mich. Comp. Laws § 333.7403, which reads in relevant part:
(1) A person shall not knowingly or intentionally possess a controlled
substance, a controlled substance analogue, or a prescription form unless
the controlled substance, controlled substance analogue, or prescription form
was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of the practitioner’s professional
practice, or except as otherwise authorized by this article.
Simply stated, the statute “proscribes the knowing or intentional possession of a
controlled substance unless obtained directly through a valid prescription or valid doctor’s
order.” People v. Hartuniewicz, 294 Mich. App. 237, 242; 816 N.W.2d 442, 446 (2011).
To prove this crime, the prosecution is required to prove (1) that the substance in question
was a controlled substance, (2) that the defendant possessed some amount of the
controlled substance, (3) that the defendant was not authorized to possess the controlled
substance, and (4) that the defendant knowingly possessed the controlled substance. Id.,
294 Mich. App. at 248; 816 N.W.2d at 448. Once the prosecution presents a prima facie
case of knowing or intentional possession of a controlled substance, “the defendant bears
the burden of affirmatively defending the action with proof of a valid prescription.” Id., 294
Mich. App. at 245; 816 N.W.2d at 447.
When Trooper Walter questioned Petitioner at the scene of the accident, Petitioner
produced a prescription drug bottle containing two different kinds of pills. (Trial Tr. Vol. I,
137-38, Aug. 23, 2006.) Petitioner stipulated at trial that an analysis of the pills revealed
25
the presence of Alprazolam (Xanax). (Id. at 178-79.) And he informed Trooper Walter that
he was delivering the medication to Mr. Simpson. (Id. at 138.) The totality of this evidence
satisfies the first, second, and fourth elements of the offense (knowing possession of the
controlled substance Xanax).
The remaining question is whether Petitioner was authorized to possess Xanax. He
claims that he was entitled to possess the pills, but he did not carry his burden at trial of
proving that he had a valid prescription for the pills or that he was authorized to deliver the
drugs to Mr. Simpson. And the prosecution was not obligated “to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” Moreland v. Bradshaw, 699 F.3d 908, 921
(6th Cir. 2012) (citing Jackson, 443 U.S. at 326), cert. denied, 134 S. Ct. 110 (2013).
The forensic scientist, moreover, testified that Petitioner had Xanax in his blood
(Trial Tr. Vol. I, 166-67, Aug. 23, 2006), and Trooper Walter testified that the pill bottle had
two different kinds of pills in it (id. at 138). The jury could have inferred from these facts that
Petitioner had ingested the Xanax and that he was not merely delivering a prescription to
Mr. Simpson. A rational juror could have concluded from the evidence taken in the light
most favorable to the prosecution that Petitioner possessed a controlled substance in
violation of Mich. Comp. Laws § 333.7403.
The state appellate court’s determination that there was sufficient evidence of
Petitioner’s guilt was objectively reasonable. Petitioner therefore has no right to relief on
the basis of his sufficiency-of-the-evidence claim.
V. Conclusion
The state courts’ rejection of Petitioner’s claims was not “so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
26
possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Accordingly, the
petition for writ of habeas corpus is DENIED.
VI. Regarding a Certificate of Appealability and
Leave to Proceed In Forma Pauperis on Appeal
Before Petitioner may appeal this court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of 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). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or 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)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would not find the Court’s assessment of Petitioner’s claims
debatable or wrong, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore declines to grant a certificate of appealability. Petitioner
nevertheless may proceed in forma pauperis on appeal without further authorization if he
appeals this decision, because he was granted leave to proceed in forma pauperis in this
Court, and an appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).
VII.
ORDER
For the reasons set forth above,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this
action is DISMISSED with prejudice.
27
IT IS FURTHER ORDERED that Petitioner’s motion for reconsideration (dkt. #33)
is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for the Court to disqualify itself
(dkt. #34) is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability will NOT be issued,
but Petitioner may proceed in forma pauperis on appeal.
Dated: November 25, 2014
S/Denise Page Hood
Denise Page Hood
United States District Judge
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 25, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
28
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?