White v. Klee
OPINION and ORDER GRANTING re 22 MOTION to Amend/Correct, DENYING 1 Petition for Writ of Habeas Corpus, DENYING 21 MOTION for Summary Judgment, DENYING 20 MOTION for Relief from Judgment and Motion to Stay Proceedings, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARK E. WHITE,
Case No. 12-13996
Honorable Patrick J. Duggan
OPINION AND ORDER (1) DENYING THE HABEAS CORPUS
PETITION (ECF NO. 1); (2) DENYING PETITIONER’S MOTION FOR
RELIEF FROM JUDGMENT (ECF NO. 20); (3) GRANTING
PETITIONER’S MOTION TO SUPPLEMENT HIS MOTION FOR
SUMMARY JUDGMENT (ECF NO. 22) BUT DENYING PETITIONER’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 21); AND (4)
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Mark E. White, a Michigan Department of Corrections Prisoner
confined at the Chippewa Correctional Facility in Kincheloe, Michigan filed a pro
se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on September 11,
2012. In 2010, a Saginaw County jury convicted Petitioner of bank robbery, in
violation of Michigan Compiled Laws § 750.531, false report of a bomb threat,
Michigan Compiled Laws § 750.411a, carjacking, Michigan Compiled Laws §
750.529a, and resisting and obstructing a police officer, Michigan Compiled Laws
§ 750.81d(1). Petitioner’s convictions and sentences were affirmed by the state
appellate court on direct appeal. In the present habeas application, Petitioner
challenges his convictions, and his sentences, on a multiplicity of grounds.
In addition to the underlying habeas petition, the following motions are
pending in this matter: (1) Petitioner’s motion for relief from judgment, (2)
Petitioner’s motion for summary judgment, and (3) Petitioner’s motion to
supplement his motion for summary judgment. Having thoroughly reviewed the
claims asserted in the habeas application, Respondent’s response and Rule 5
materials, as well as the arguments raised in Petitioner’s other motions, the Court
concludes that Petitioner is not entitled to the issuance of the writ. Accordingly,
the Court grants Petitioner’s motion to supplement but denies the petition as well
as Petitioner’s pending motions for relief from judgment and for summary
judgment. The Court declines to issue a certificate of appealability.
Petitioner’s convictions stem from a jury trial in Saginaw County, Michigan.
The Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). The trial testimony established the following:
On July 8, 2009, a man approached Ashley Earle’s teller
window at Citizens Bank in Saginaw. The man handed Earle a note
and placed a small bag on the counter. The note read, “Do not call.
The bomb will go off. Lock the door for 30 minutes. You are being
watched. Do not call.” The handwriting on the note was difficult to
read and Earle was only able to read a few of the sentences. Earle
looked at the man, and he told her, “Hundreds, fifties, and twenties, no
straps, no dye packs.” Earle gave the man the money in her teller
drawer. The money totaled $1,055. After the man walked out of the
bank, Earle pressed the security alarm button. At trial, Earle
identified the man as defendant.
Officer Scott Jackson, who was working in plain clothes and in
an unmarked vehicle on July 8, 2009, responded to the dispatch call of
a bank robbery with the intent to search for the suspect. He observed
a man fitting the suspect’s description, and he saw a marked patrol
vehicle drive past the man. According to Jackson, the man took
“specific notice” of the marked patrol vehicle because the man
changed the direction he was walking. Jackson pulled over to the area
where the man was walking. He intended to pull in front of the man
and let the marked patrol vehicle, which was turning around, stop
behind the man. As Jackson slowed his vehicle, the man walked
toward it, waving him down for a ride. When Jackson stopped his
vehicle, the man opened the passenger side door and “immediately fell
on top of” Jackson. The man put his left shoulder into Jackson’s right
shoulder and placed both of his hands on the steering wheel. He took
partial control of the vehicle. Jackson punched and yelled at the man
to get out of the vehicle. He forced the man out of the passenger door,
and followed him out, laying on top of the man on the ground.
Outside on the ground, Jackson repeatedly told the man,
“[P]olice, give me your hands, give me your hands.” Jackson secured
the man’s left hand, but the man’s right hand was under his body and
the man refused to give it up. Officer Ian Wenger, the driver of the
marked patrol vehicle, approached the two men. He advised the man
that he was a police officer and ordered the man to give up his hands.
When the man continued to struggle, Wenger tased him. Even after
the tase cycle stopped, the man continued to resist Jackson and
Wenger before the two officers were able to control him. The man,
later identified as defendant, was handcuffed, and $1,055 was found
in his pocket during a pat down.
According to Wenger, he activated his vehicle’s lights and siren
when he observed defendant approach Jackson’s vehicle. Jackson
could not recall if the lights on the marked patrol vehicle were
activated, but he recalled hearing a siren while he was on the ground
struggling with defendant.
People v. White, No. 297914, 2011 WL 2424504, at *1-2 (Mich. Ct. App. June 16,
2011) (per curiam) (unpublished).
On March 17, 2010, Petitioner’s jury found him guilty, as charged, of bank
robbery, false report of a bomb threat, carjacking, and resisting and obstructing a
police officer. The trial court sentenced Petitioner to concurrent terms of fourteen
to seventy years in prison for the bank robbery, seven to fifteen years for the false
report of a bomb threat and for resisting or obstructing a police officer, and thirtyfive to seventy years for the carjacking.
On direct appeal, Petitioner presented two arguments to the Michigan Court
of Appeals through counsel and raised ten others in a pro se supplemental standard
4 brief. The state appellate court rejected each argument, affirming Petitioner’s
convictions and sentences in an unpublished, per curiam opinion. Id. On October
24, 2011, the Michigan Supreme Court denied leave to appeal. People v. White,
490 Mich. 895, 804 N.W.2d 335 (2011) (table).
Petitioner filed his habeas corpus petition in this Court on September 11,
2012. Petitioner asserts the following grounds for relief: (1) he was denied his
right to self-representation at the preliminary examination; (2) his state court
transcripts were altered or falsified; (3) the state trial court permitted standby
counsel to make all tactical decisions; (4) he was denied his right to present a
medical defense; (5) he was denied his right of access to the courts; (6) he was
denied his right to call witnesses in his defense; (7) the prosecutor committed
misconduct by misleading the trial court, withholding evidence, and vouching for
witnesses and evidence; (8) the carjacking statute is void for vagueness, and the
prosecutor abused his discretion by charging him with carjacking; (9) he was not
brought to trial within 180 days in violation of state law; (10) he was denied due
process of law on appeal; (11) the evidence at trial was insufficient and his
sentence was based on improperly scored sentencing guidelines and inaccurate
Also pending before the Court are Petitioner’s motion for relief from
judgment, his motion for summary judgment, and his motion to supplement his
motion for summary judgment. In his motion for relief from judgment (ECF No.
20), Petitioner seeks appointment of counsel and an evidentiary hearing on the
serial numbers of the “bait” money given to the robber.1 In the alternative,
In an Opinion and Order issued on July 25, 2013, the Court denied, inter
alia, Petitioner’s motions for appointment of counsel, discovery, and the admission
of suppressed evidence. With respect to the serial numbers issue, the Court
Petitioner seeks a stay of these proceedings so that he can raise the matter of the
“bait” money in the state court.
In his motion for summary judgment (ECF No. 21), Petitioner seeks
summary judgment on his claims that he was denied his rights to represent himself,
to present a defense, and to have access to the courts. Additionally, he asserts that
the prosecution withheld evidence. Finally, in his motion to supplement the
motion for summary judgment (ECF No. 22), Petitioner cites People v. Chenault,
495 Mich. 142, 845 N.W.2d 731 (2014), to support his claim that the prosecutor
II. STANDARD OF REVIEW
concluded “that the state appellate court adjudicated Petitioner’s claim on the
merits and, as a consequence, this Court is limited to the record that was before the
The Court also notes that the pending motion for relief from judgment is
Petitioner’s second such motion. The Court denied Petitioner’s first motion for
relief from judgment in an Order dated September 30, 2013. The Court explained
that Federal Rule of Civil Procedure 60(b) is a mechanism to seek relief from a
final judgment. Because the Court’s July 25, 2013 Opinion and Order was not a
final judgment, but rather disposed of preliminary, non-dispositive motions,
Petitioner’s first motion for relief from judgment was denied on ripeness grounds.
The same may be said of the pending Rule 60 motion. To date, the Court has not
issued a final judgment that may be challenged by way of Rule 60. Accordingly,
the Court DENIES Petitioner’s pending motion for relief from judgment.
Review of this case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214. In order to
grant relief, this Court must conclude that the state court’s decision “with respect to
any claim that was adjudicated on the merits in State court proceedings” was (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or (2)
“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).
The Supreme Court has expounded upon the meanings of the two clauses
contained in 28 U.S.C. § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 405, 120
S. Ct. 1495, 1519 (2000) (O’Connor, J., opinion of the Court for Part II) (“[T]he
‘contrary to’ and ‘unreasonable application’ clauses [have] independent
meaning.”). “A state-court decision is contrary to clearly established federal law if
the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases or if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent.” Murphy v. Ohio,
551 F.3d 485, 493-94 (6th Cir. 2009) (alterations in original) (internal quotation
marks omitted) (quoting Williams, 529 U.S. at 405, 120 S. Ct. at 1519).
Alternatively, “[i]f the state court identifies the correct governing legal principle . .
. , habeas relief is available under the unreasonable application clause if the state
court unreasonably applies that principle to the facts of the prisoner’s case or
unreasonably extends or unreasonably refuses to extend a legal principle from the
Supreme Court precedent to a new context.” Akins v. Easterling, 648 F.3d 380,
385 (6th Cir. 2011) (internal quotation marks and alterations omitted). A federal
court may not find a state court’s application of Supreme Court precedent
unreasonable if it is merely “incorrect or erroneous. [Rather, t]he state court’s
application must have been ‘objectively unreasonable.’” See, e.g., Wiggins v.
Smith, 539 U.S. 510, 520-21, 123 S. Ct. 2527, 2535 (2003) (citations omitted).
Factual determinations made by state court judges in the adjudication of
claims cognizable on habeas review are accorded a presumption of correctness. 28
U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with
clear and convincing evidence. Id. Moreover, habeas review of claims adjudicated
on the merits in state courts is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. __, 131 S. Ct. 1388, 1398 (2011).
A. Denial of the Right to Self-Representation
In his first ground for relief, Petitioner contends that he was denied his right
to self-representation during his preliminary examination. The Michigan Court of
Appeals adjudicated this claim on direct review and found the claim lacking in
merit. Specifically, the state appellate court explained that Petitioner did not make
an unequivocal request to represent himself until after he was bound over for trial.
1. Clearly Established Federal Law
As the United States Court of Appeals for the Sixth Circuit once explained
in the context of self-representation cases, “the universe of clearly established
federal law as determined by the Supreme Court, 28 U.S.C. § 2254(d)(1), is
narrow. It consists of one decision, Faretta v. California, 422 U.S. 806,  95 S.Ct.
2525 (1975), the leading Supreme Court decision to reach a holding on the Sixth
Amendment right of self-representation at trial.” Jones v. Jamrog, 414 F.3d 585,
591 (6th Cir. 2005). There are, “to be sure, other Supreme Court decisions on the
periphery of Faretta,” and another of those, a case involving the responsibilities of
standby counsel, is implicated in this case and discussed in the next section. Id.
The Sixth Amendment, applicable to the states through the Fourteenth
Amendment’s Due Process Clause, provides that a criminal defendant shall have
the right to the assistance of counsel in his defense. U.S. Const. amend. VI. This
affirmative right implies that a defendant has a corollary right, inherent in the
structure of the Sixth Amendment, to proceed without counsel and to represent
himself. Faretta, 422 U.S. at 819, 95 S. Ct. at 2533 (“The Sixth Amendment does
not provide merely that a defense shall be made for the accused; it grants the
accused personally the right to make his defense.”). As with the waiver of other
rights of constitutional dimension, a defendant’s waiver of his right to counsel and
decision to proceed pro se must be knowing and intelligent. Id. at 807, 95 S. Ct. at
2527. The adequacy of a waiver is determined from the facts and circumstances of
the case. Iowa v. Tovar, 541 U.S. 77, 88, 124 S. Ct. 1379, 1387 (2004).
[S]ince a defendant must act affirmatively to relinquish the right to
counsel, it follows that the right [to self-representation] must
affirmatively be asserted as well. [The Supreme Court] thus ha[s]
emphasized that courts should not bend over backward to hold that a
defendant, who merely hints that he might be better off representing
himself, has waived his right to counsel.
Raulerson v. Wainwright, 469 U.S. 966, 969, 105 S. Ct. 366, 368 (1984) (Marshall,
J., dissenting from the denial of a petition for writ of certiorari). A request for selfrepresentation must be made clearly and unequivocally. See, e.g., Buhl v. Cooksey,
233 F.3d 783, 792 (3d Cir. 2000).
2. The Preliminary Examination Conference
Petitioner appeared before the state district court for a preliminary
examination conference on July 16, 2009. Petitioner, who was on parole at the
time, asked the state district court judge to send him back to prison so that he could
obtain pain medication and have access to a law library. During the course of that
colloquy, the state district judge observed that a person as coherent as Petitioner
would not have any problems assisting his attorney. In response, Petitioner stated,
“I was going ask for co-counsel status under the Michigan Constitution . . . .”
(7/16/09 Tr. 6-7.) The state district judge subsequently cautioned Petitioner
against representing himself. Addressing defense counsel, the judge stated:
[Y]ou can take it up with him on who’s representing him if you’re
sitting as a – if he’s going to ask the questions or whatever. You can
(Id. at 9.) Immediately after this comment, Petitioner interjected:
I don’t intend to stand up in front of this court your Honor, and
posture and try to play lawyer. I don’t do that. . . . . It’s not intention
(sic) at all.
(Id.) The conference concluded with the judge stating the following:
Okay, well you have spoken today on your own behalf and the Court
has allowed you to and the Court would allow you to do the same to
bring things to my attention in the future.
(Id. at 10.)
Five days later on July 21, 2009, Petitioner wrote a letter to the state district
judge indicating that he had asserted his right to self-representation at the July 16
conference. Petitioner also reiterated his concerns about his lack of access to a law
library and asserted that he was being denied his right to a speedy trial. (7/21/09
Letter, Pet. Ex. A.)
3. The Preliminary Examination
On July 24, 2009, the state district judge conducted the preliminary
examination. Defense counsel represented Petitioner at this hearing. Petitioner
made only two remarks during the questioning of witnesses. He objected when
Ms. Earle identified him as the bank robber, and when she hesitated to answer the
prosecutor’s question about whether there were video cameras in the bank,
Petitioner interjected, “Teller areas.” (7/24/09 Tr. 8, 13.) Defense counsel crossexamined the prosecution witnesses, made the decision not to produce any
witnesses, and opposed the prosecution’s motion to bind Petitioner over for trial.
After the state district judge ruled that there was probable cause to believe
the charged offenses were committed and that Petitioner committed them, the court
acknowledged Petitioner’s letter to the court in which Petitioner asserted his right
to a speedy trial and complained that he was being denied access to a law library
computer. Petitioner asked the district judge to release him to the Michigan
Department of Corrections so that he could acquire pain pills and access a law
library. The state district judge declined to rule on whether Petitioner could be sent
back to prison, indicating that it had no control over the issue. Petitioner
responded, “Okay, well if I can’t use the law library, I’m being denied the right to
represent myself, which I put on record.” (Id. at 47.) The hearing concluded with
the judge’s comment that he had no personal knowledge about the situation at the
jail and Petitioner’s reply that he had been unable to get a response to the
grievances that he had written.
At no point prior to Petitioner’s colloquy with the state district judge did
Petitioner “clearly and unequivocally” declare that he wanted to represent himself
at the preliminary examination and that he did not want counsel to represent him.
Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. Thus, the state appellate court’s
conclusion – that Petitioner did not make an unequivocal request to represent
himself until after he was bound over for trial – was objectively reasonable. The
state court’s decision was neither contrary to, nor an unreasonable application of,
Faretta. Petitioner is not entitled to relief on his first claim.
B. Standby Counsel
In his third claim for relief, which the Court addresses second as it logically
follows the self-representation issue discussed above, Petitioner asserts that the
state trial court forced him to proceed with standby counsel and permitted standby
counsel to make all tactical decisions in his case. The Michigan Court of Appeals
found no merit in this argument on direct appeal.
In Faretta, the Supreme Court explained that a state may not “hale a person
into its criminal courts and there force a lawyer upon him . . . .” 422 U.S. at 807,
95 S. Ct. at 2527. Nevertheless,
[a] defendant’s Sixth Amendment rights are not violated when a trial
judge appoints standby counsel - even over the defendant’s objection to relieve the judge of the need to explain and enforce basic rules of
courtroom protocol or to assist the defendant in overcoming routine
obstacles that stand in the way of the defendant’s achievement of his
own clearly indicated goals. Participation by counsel to steer a
defendant through the basic procedures of trial is permissible even in
the unlikely event that it somewhat undermines the pro se defendant’s
appearance of control over his own defense.
McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S. Ct. 944, 954 (1984) (holding that
the participation at trial of standby counsel does not necessarily infringe the right
to represent oneself). “In determining whether a defendant’s Faretta rights have
been respected, the primary focus must be on whether the defendant had a fair
chance to present his case in his own way.” Id. at 177, 104 S. Ct. at 950.
The record belies Petitioner’s claim that he did not want standby counsel and
that the trial court forced one upon him. At one pretrial hearing, Petitioner
indicated that he would need help securing witnesses and with other discovery
issues and that he did not object to the appointment of standby counsel. He also
stated that it was “perfectly acceptable” for standby counsel to sit behind him at
trial and be available to him for questioning. (9/14/09 Hr’g Tr. 6-9.)
As for tactical decisions, Petitioner made the decision not to seek an
independent evaluation of competency (1/4/10 Hr’g Tr. 3-4) and not to testify at
trial (5/17/10 Trial Tr. (Vol. II) 115). He also filed pro se pretrial motions, and, at
trial, he conducted voir dire, made an opening statement, conducted crossexamination of prosecution witnesses, and made a closing argument. Petitioner
participated in discussions about the jury instructions, and expressed satisfaction
with the jury instructions as read to the jury.
Standby counsel did not interfere with Petitioner’s handling of the case, and
he appears to have been unobtrusive at trial. Standby counsel did prevail on the
issue of whether Petitioner could call certain witnesses to establish a defense based
on lack of responsibility due to medical or mental reasons, see infra. But that
decision was based on the fact that a diminished capacity defense is no longer
permitted in Michigan. See People v. Carpenter, 464 Mich. 223, 237, 241, 627
N.W.2d 276, 283, 285 (2001) (concluding that the state legislature “created an all
or nothing insanity defense” and that, by enacting “a comprehensive statutory
scheme setting forth the requirements for and the effects of asserting a defense
based on either mental illness or mental retardation,” the Legislature signified its
intent not to allow evidence of a defendant’s lack of mental capacity short of legal
insanity to avoid or reduce criminal responsibility by negating specific intent”).
Petitioner had a fair chance to present his case in his own way. The trial
court did not force standby counsel on Petitioner and standby counsel was not
permitted to make all the tactical decisions in the case. Habeas relief, therefore, is
not warranted on claim three.
C. The Transcripts
Petitioner’s second habeas claim is that his rights to due process and an
effective appeal were violated by the alteration or falsification of state court
transcripts. The Michigan Court of Appeals found no merit in this claim because
Petitioner did not provide any independent corroboration of the alleged
inaccuracies, nor explain how the purported inaccuracies adversely affected his
ability to appeal his convictions.2
A conviction based on “a seriously disputed record, whose accuracy
petitioner has had no voice in determining, cannot be allowed to stand.” Chessman
v. Teets, 354 U.S. 156, 164, 77 S. Ct. 1127, 1132 (1957). But a transcript failing to
capture the entirety of the proceedings “is not a per se denial of [the] due process
right to a fair appeal.” Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986)
(rejecting defendant’s contention that a transcript missing the jury instructions
resulted in a denial of his due process rights). To demonstrate denial of a fair
The Court notes that its July 25, 2013 Opinion and Order addressed
Petitioner’s contentions regarding the purported inaccuracies in the state court
transcripts in the context of a discovery motion filed by Petitioner.
appeal, a habeas petitioner must show that prejudice, something more than gross
speculation, resulted from a missing transcript or missing portion of a transcript.
Id. (“Any time a page is missing from a transcript we cannot assume that
reversible error may have been reflected on that page, but rather some modicum of
evidence must support such a conclusion.”).
Petitioner contends that the transcripts fail to reflect: (1) Ms. Earle’s
statement that she watched a video of the robbery with a police officer immediately
after the robbery; (2) Petitioner’s assertion of his right to represent himself at the
preliminary examination; (3) Petitioner’s comment at his arraignment that he
asserted his right to represent himself at the preliminary examination and that the
state district court granted his request; (4) Petitioner’s statement at a hearing on
October 12, 2009 that a vehicle was in the parking lot; and (5) Petitioner’s
comment at a pretrial motion hearing on December 17, 2009 that he did not need
standby counsel, as counsel was not helping him.
Petitioner has not shown any prejudice as a result of the allegedly missing
statements that the bank teller watched a video of the robbery and that a vehicle
was present in the parking lot.
As for the alleged omission of Petitioner’s request to represent himself at the
preliminary examination, Petitioner says that he was prejudiced because the
Michigan Court of Appeals concluded from the transcript that he never
unequivocally expressed his right to self-representation. The court reporter,
however, certified that the transcript of the preliminary examination was a
complete, true, and accurate record of the proceeding. Further, two other state
district court employees subsequently compared some of the testimony at the
preliminary examination with the transcript of the examination and determined that
the transcript is a true and accurate reflection of the testimony. (Pet. Ex. B.)
Moreover, Petitioner has failed to corroborate his claim of inaccuracy with any
independent evidence that he asserted his right of self-representation at the
The Court therefore concludes that the state appellate court’s rejection of
Petitioner’s claim about inaccuracies in the state court transcripts was not contrary
to, or an unreasonable application, of any Supreme Court decision. The Court
declines to grant relief on Petitioner’s second claim.
D. The Right to Present a Defense and Call Witnesses
The fourth claim alleges that Petitioner was denied his constitutional right to
present a “medical and mental” defense based on his prior closed-head injuries and
the fact that his diabetes, combined with prescription drugs, can cause confusion,
difficulty speaking, and uncooperative behavior. In his sixth claim, Petitioner
suggests that he was denied his constitutional right to call witnesses because he
failed to serve the prosecutor with a witness list. Petitioner says that his witnesses
would have testified that he was hospitalized two days before the robbery and that,
contrary to the trial testimony, he was unable to resist the arresting officers. The
Michigan Court of Appeals found no merit to these claims.
1. Clearly Established Federal Law
“[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense,’” but the Supreme Court has “never
questioned the power of States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness and reliability –
even if the defendant would prefer to see that evidence admitted.” Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986) (citations omitted).
Thus, “[a] defendant’s right to present relevant evidence is not unlimited, but rather
is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308,
118 S. Ct. 1261, 1264 (1998). Although the Constitution
prohibits the exclusion of defense evidence under rules that serve no
legitimate purpose or that are disproportionate to the ends that they
are asserted to promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the issues,
or potential to mislead the jury. . . . [T]he Constitution permits judges
to exclude evidence that is repetitive . . . , only marginally relevant or
poses an undue risk of harassment, prejudice, [or] confusion of the
Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 1732 (2006)
(quotation marks and citations omitted) (second alteration in original). “This
court’s duty ‘is not to determine whether the exclusion of the evidence by the trial
judge was correct or incorrect under state law, but rather whether such exclusion
rendered petitioner’s trial so fundamentally unfair as to constitute a denial of
federal constitutional rights.’” Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir.
2002) (quoting Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982)).
2. The Relevant Facts
The Michigan Court of Appeals summarized the relevant facts as follows:
In November 2009, defendant provided two copies of a witness
list to a sheriff deputy to deliver to the trial court. One copy was for
the trial court, which was filed on November 11, 2009. The second
copy was for the prosecutor; defendant requested the clerk to serve
that copy on the prosecutor’s office. The witness list included Dr.
Brian Hartfelder, an emergency room doctor who treated defendant
for hip and joint pain on June 22, 2009. The prosecutor’s office never
received its copy of the witness list. The prosecutor discovered the
witness list when he examined the court file in the days before trial.
In March 2010, defendant gave standby counsel a witness list
with names of persons that defendant wanted subpoenaed for trial.
According to standby counsel, the purpose of the testimony of the
persons named on the list would be to establish a diminished capacity
defense. Because the Supreme Court had abolished the diminished
capacity defense, People v. Carpenter, 464 Mich. 223; 627 NW2d 276
(2001), standby counsel stated that he, as an officer of the court, could
not subpoena persons who would not be allowed to testify. One of the
persons that defendant requested standby counsel to subpoena was Dr.
Wael Haider, who treated defendant from July 3–6, 2009, for an
infected toe and nausea and vomiting.
During the first day of trial, with regard to defendant’s
witnesses, the trial court stated that “the rules haven’t been followed”
and it would “prevent bringing in witnesses that aren’t properly in
accordance with the rules.” It also stated that, “in any event,” based
on standby counsel’s explanation of why defendant had recently
sought medical treatment it would deny any request by defendant to
present any medical evidence.
White, No. 297912, 2011 WL 2424504, at *5-6.
The rule requiring Petitioner to serve his witness list on the prosecutor in a
timely manner serves the legitimate purpose of giving notice to the prosecution of
anticipated defense witnesses. And preventing Petitioner from calling the people
on his witness list was an appropriate sanction for violating the rule. Cf. Taylor v.
Illinois, 484 U.S. 400, 401-02, 108 S.Ct. 646, 649 (1988) (holding that the Sixth
Amendment does not prohibit a trial court from refusing to allow a defense witness
to testify if the defendant failed to identify the witness in response to a pretrial
discovery request). Furthermore, to the extent Petitioner was trying to use his
medical condition to establish a diminished capacity defense or to negate his intent,
his witnesses’ testimony would have been irrelevant, and therefore excludable,
under the rule articulated in Carpenter, 464 Mich. at 223, 627 N.W.2d at 276.
(3/15/10 Hr’g Tr. 4-6.) During a March 2010 hearing, the state court judge and
standby counsel explained the nonexistence of the diminished capacity defense to
Petitioner and reminded Petitioner that the prosecution shouldered the burden of
The Court concludes that the trial court’s exclusion of witnesses and
rejection of Petitioner’s “medical and mental” defense was not an unconstitutional
deprivation of Petitioner’s right to defend himself. The state appellate court
therefore reasonably rejected Petitioner’s claims, and Petitioner is not entitled to
habeas relief on his fourth or sixth claim.
E. Access to the Courts
Petitioner asserts in his fifth claim that he was denied his right of access to
the courts when the trial court, standby counsel, and jail officials refused to provide
him with postage, which he needed to serve legal documents on the prosecutor.
The Michigan Court of Appeals found no merit in this claim.
Petitioner was confined in jail before trial and he had a constitutional right to
adequate, effective, and meaningful access to the courts. Bounds v. Smith, 430
U.S. 817, 821-22, 97 S. Ct. 1491, 1494-95 (1977). This right “requires prison
authorities to assist inmates in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or adequate assistance from
persons trained in the law.” Id. at 828, 97 S. Ct. at 1498. “[I]ndigent inmates must
be provided at state expense with paper and pen to draft legal documents, with
notarial services to authenticate them, and with stamps to mail them.” Id. at
824-25, 97 S. Ct. at 1496.
Petitioner alleges that he was denied sufficient postage for large envelopes,
which he needed to serve motions and a witness list on the prosecutor. He
informed the trial court on the first day of trial that jail officials allotted him only
two $.44 pre-stamped envelopes per week and that many of his motions were too
large for the envelopes. (3/16/10 Trial Tr. (Vol. I) 18.) The record, however,
indicates that Petitioner filed “a massive amount of motions” (3/1/10 Hr’g Tr. 18)
and that, in addition to his criminal case, he was pursuing unrelated litigation had
the ability to pay for some of the postage that he needed for his legal documents.
(2/1/10 Hr’g Tr. 13-14.) The initial witness list, in fact, was filed in the state court.
(3/16/10 Trial Tr. (Vol. I) 9.)
The Court finds that Petitioner’s right of access to the courts was not
abridged, as Petitioner had meaningful and adequate access to the courts
throughout the proceedings against him.
F. Prosecutorial Misconduct
In his seventh claim, Petitioner contends that the prosecutor committed
misconduct by misleading the trial court, withholding evidence, and vouching for
witnesses and evidence. This claim pertains to a videotape of the robbery, a police
officer’s report and notes regarding his interview with Ms. Earle, and serial
numbers on the “bait” money taken during the robbery. The Michigan Court of
Appeals found no merit to these claims.
Prosecutors “must refrain from interjecting personal beliefs into the
presentation of [their] case[s].” United States v. Young, 470 U.S. 1, 8-9, 105 S. Ct.
1038, 1043 (1985). A prosecutor’s suppression “of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. United States, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97
(1963). “[E]vidence is ‘material’ within the meaning of Brady when there is a
reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–70, 129
S. Ct. 1769, 1783 (2009). To state a Brady violation, the petitioner must
demonstrate that (1) the evidence at issue was favorable to him, either because it
was exculpatory or impeaching, (2) the state suppressed the evidence, either
willfully or inadvertently, and (3) prejudice resulted. Strickler v. Greene, 527 U.S.
263, 281-82, 119 S. Ct. 1936, 1948 (1999).
1. The Videotape
Petitioner alleges that the prosecutor suppressed a videotape of the robbery
and misled him by insinuating that the bank had custody of the videotape. He also
suggests that the prosecution tampered with the videotape and that the prosecutor
improperly vouched for Police Officer Freddy Johnson when Johnson stated that
he had custody of the videotape.
There is no evidence in the record that the prosecutor suppressed evidence of
the videotape or that anyone tampered with it. As early as November 24, 2009, the
prosecutor informed Petitioner by letter that the bank had provided the prosecution
and the Saginaw Police Department with identical video materials. The prosecutor
explained that they were unable to view the recording, but that he had asked
Detective Johnson to obtain copies that the parties could view. The prosecutor
promised to provide Petitioner with a viewable copy of the videotape if and when it
was obtained. (Pet. Ex. I.)
At a court hearing on February 1, 2010, the prosecutor informed the trial
court that bank officials had provided the prosecution with the videotape and that
the prosecution had provided a copy to the defense. The prosecutor explained that
neither party had been able to view the recording and that the bank had not yet
provided the prosecution with a videotape in a viewable format. (2/1/10 Hr’g Tr.
4-5.) On March 15, 2010, the day before trial, Petitioner informed the trial court
that he viewed the videotape for the first time five days prior. He challenged the
tape’s authenticity and the chain of custody. The trial court denied Petitioner’s
motion to suppress the videotape after explaining that the bank, not the prosecutor,
had difficulties in acquiring a viewable videotape. (5/15/10 Hr’g Tr. 3-4.)
Petitioner renewed his challenge to the authenticity of the videotape and its
chain of custody on the first day of trial. The prosecutor then explained once again
that the bank had provided the videotape to the prosecution, but that the
prosecutor’s office lacked the proper equipment to play the tape. The prosecutor
further explained that, after the bank upgraded its surveillance system, it provided
its equipment to the prosecutor’s office so that the prosecutor could view the tape
of the bank robbery. The trial court ruled that it would be up to the jury to
determine whether the videotape was accurate. (3/16/10 Trial Tr. (Vol. I) 112-17.)
Detective Johnson subsequently testified that he received the videotape on
the day of the robbery and that he had stored it in his department’s property room.
(3/17/10 Trial Tr. (Vol. II) 76-77.). He may have been referring to his copy of the
videotape, because he previously stated in the jury’s absence that the bank had the
original video and that he had a copy of the videotape. (3/16/10 Trial Tr. (Vol. I)
113-14.) Regardless of who had the original videotape, the record, as summarized
above, demonstrates that the prosecutor did not withhold the videotape from
Petitioner or mislead him about the tape. In fact, Petitioner and his attorney
confirmed receipt of a copy of the videotape about four months before trial. The
problem was the lack of compatible equipment for viewing the tape. Once the
bank provided its equipment to the prosecution, both parties were able to view it.
Furthermore, the videotape was not favorable to the defense and therefore,
even assuming it was improperly suppressed, which it was not, no prejudice can be
have said to have resulted. Ms. Earle identified Petitioner in the videotape when it
was played for the jury (id. at 128-30), and Detective Johnson testified that, when
he showed the videotape to Petitioner, Petitioner asked to see the part where he
was standing by the teller. At some point during his viewing of the tape, Petitioner
said, “That’s me.” (3/17/10 Trial Tr. (Vol. II) 74, 77.)
The Court concludes that Petitioner has not stated a viable Brady claim
because he has not shown that the prosecutor suppressed favorable evidence.
Petitioner also has failed to show that the prosecutor vouched for Detective
Johnson. Improper vouching occurs when a prosecutor states or implies that he or
she has special knowledge of facts not before the jury. United States v. Garcia,
758 F.3d 714 (6th Cir. 2014) (pagination not yet assigned). Nothing of the sort
occurred in this case. To the extent Petitioner is claiming that the chain of custody
for the videotape was broken, his claim lacks merit because “a possible break in a
chain of custody does not necessarily render the physical evidence inadmissible,
but merely raises questions as to the weight to be accorded to the evidence.”
Harmon v. Anderson, 495 F. Supp. 341, 343 (E.D. Mich. 1980) (citation omitted);
accord United States v. Allen, 619 F.3d 518, 525 (6th Cir. 2010).
2. Officer Johnson’s Report and Notes
Petitioner alleges that the prosecutor also withheld Detective Johnson’s
police report and notes. Although Petitioner says that the police report could have
been used to impeach Ms. Earle at the preliminary examination, he concedes that
he received the police report on February 1, 2010, about a month and a half before
trial. Brady generally applies to a complete failure to disclose, not tardy
disclosure. Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014).
As for Detective Johnson’s notes of his interview with Ms. Earle, the
prosecutor stated at the pretrial hearing on February 1, 2010, that police officers
normally destroy their notes after they prepare a typewritten report and that is what
happened in this case. (2/1/10 Hr’g Tr. 16.) At trial, however, Detective Johnson
testified on cross-examination by Petitioner that he still had the notes and that the
notes were in the courtroom. On redirect examination, Detective Johnson admitted
that he had not given his notes to the prosecutor.
The prosecutor subsequently stated in the jury’s absence that he was learning
for the first time that day that the notes existed. He promised to make a copy of the
notes for Petitioner, and he stated that he had no objection to recalling Detective
Johnson for additional questions after Petitioner looked at the notes. Petitioner
complained that the notes could have made a difference in his questioning of Ms.
Earle, but the trial court stated that, if the notes were basically the same as
Detective Johnson’s report, they would be cumulative. (3/17/10 Trial Tr. (Vol. II)
75-76, 82-83, 85-86.)
Petitioner not shown that Detective Johnson’s notes were any different from
Johnson’s report of his interview with Ms. Earle. Petitioner also has not shown
that either the notes or the report were favorable to the defense and that their
alleged suppression prejudiced him. Therefore, he has not stated a Brady claim
with respect to the notes or report.
3. The Serial Numbers
Petitioner alleges that the prosecutor suppressed the serial numbers on the
“bait” money that the bank robber took from Ms. Earle. Petitioner contends that, if
the serial numbers were produced and determined to be different from the numbers
on the money he possessed at his arrest, he could have established reasonable
doubt as to whether he was the perpetrator.
Petitioner was arrested shortly after the commission of the bank robbery and
was in possession of the precise amount of money reported stolen from the bank.
Thus, even without the serial numbers, the evidence adduced at trial strongly
suggested that Petitioner was the perpetrator. Petitioner speculates that the
numbers on the “bait” money would not have matched the money he possessed at
his arrest, but such speculation is insufficient to establish a Brady violation.
Henness v. Bagley, 644 F.3d 308, 325 (6th Cir. 2011) (citation omitted).
Petitioner also contends that the prosecutor engaged in other misconduct by
eliciting testimony that individuals at the bank during the commission of the
robbery were crying and that Petitioner did not say anything when he got into the
vehicle with Detective Johnson following his arrest. The elicitation of this
testimony does not rise to the level of constitutional error, particularly where
Petitioner does not argue that his post-Miranda silence was used against him.
The Court therefore rejects all of Petitioner’s claims of prosecutorial misconduct.
G. The Carjacking Statute and Charge
Petitioner’s eighth claim alleges that the carjacking statute is void for
vagueness and that the prosecutor abused his discretion when charging Petitioner
1. Void for Vagueness
“As generally stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357, 103 S. Ct. 1855, 1858 (1983). The carjacking statute in question here reads in
(1) A person who in the course of committing a larceny of a motor
vehicle uses force or violence or the threat of force or violence, or
who puts in fear any operator, passenger, or person in lawful
possession of the motor vehicle, or any person lawfully attempting to
recover the motor vehicle, is guilty of carjacking, a felony punishable
by imprisonment for life or for any term of years.
(2) As used in this section, “in the course of committing a larceny of a
motor vehicle” includes acts that occur in an attempt to commit the
larceny, or during commission of the larceny, or in flight or attempted
flight after the commission of the larceny, or in an attempt to retain
possession of the motor vehicle.
Mich. Comp. Laws § 750.529a(1) and (2).
Petitioner claims that this statute is vague as to the “attempt” element. An
ordinary person, however, could understand from subsection 2 of the statute that an
“attempt” means an effort, endeavor, or undertaking to commit a larceny of a
vehicle. Due process “does not require ‘impossible standards’ of clarity,’ ”
Kolender, 461 U.S. at 361, 103 S. Ct. at 1860 (quoting United States v. Petrillo,
332 U.S. 1, 7-8, 67 S. Ct. 1538, 1541-42 (1947)), and the carjacking statute at issue
here is clear. The language “conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices. The
Constitution requires no more.” Petrillo, 332 U.S. at 8, 67 S. Ct. at 1542.
Therefore, the state appellate court’s rejection of Petitioner’s claim was objectively
2. The Prosecution’s Charging Decision
Petitioner contends that the prosecutor abused his discretion when he
charged Petitioner with carjacking. Petitioner argues that the correct charge was
resisting and obstructing Detective Scott Jackson, not carjacking.
Prosecuting attorneys retain broad discretion to enforce criminal laws.
United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996).
As a result, [t]he presumption of regularity supports their
prosecutorial decisions and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their
official duties. In the ordinary case, so long as the prosecutor has
probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in
Id. (internal quotation marks and citations omitted).
As explained more fully below, see infra, there was probable cause to
believe that Petitioner attempted to take Detective Jackson’s vehicle after the bank
robbery. Detective Jackson testified that Petitioner entered the passenger side of
his unlocked vehicle, pressed his left shoulder against Detective Jackson’s right
shoulder, and placed both his hands on the steering wheel. Detective Jackson felt
the force of Petitioner’s body and thought that Petitioner was trying to take his car
in an effort to get away from the marked police vehicle.
Detective Jackson’s testimony established that Petitioner used force in an
attempt to take Jackson’s motor vehicle. Thus, the state court’s conclusion – that
the prosecutor did not abuse his discretion in charging Petitioner with carjacking –
H. The State’s 180-day Rule
The ninth claim alleges that the state trial court violated Michigan’s speedy
trial statute (Mich. Comp. Laws § 780.1313) by not notifying the Saginaw County
This statute provides:
(1) [w]henever the department of corrections receives notice that
there is pending in this state any untried warrant, indictment,
information, or complaint setting forth against any inmate of a
correctional facility of this state a criminal offense for which a prison
Prosecutor that Petitioner should be tried within 180 days. As a result, Petitioner
sentence might be imposed upon conviction, the inmate shall be
brought to trial within 180 days after the department of corrections
causes to be delivered to the prosecuting attorney of the county in
which the warrant, indictment, information, or complaint is pending
written notice of the place of imprisonment of the inmate and a
request for final disposition of the warrant, indictment, information, or
complaint. The request shall be accompanied by a statement setting
forth the term of commitment under which the prisoner is being held,
the time already served, the time remaining to be served on the
sentence, the amount of good time or disciplinary credits earned, the
time of parole eligibility of the prisoner, and any decisions of the
parole board relating to the prisoner. The written notice and statement
shall be delivered by certified mail.
Mich. Comp. Laws § 780.131(1). The Michigan Supreme Court explained in
People v. Lown, 488 Mich. 242, 794 N.W.2d 9 (2011), that
[t]he object of this rule is to dispose of new criminal charges against
inmates in Michigan correctional facilities; the rule requires dismissal
of the case if the prosecutor fails to commence action on charges
pending against an inmate within 180 days after the Department of
Corrections (DOC) delivers notice of the inmate’s imprisonment. . . .
The rule does not require that a trial be commenced or completed
within 180 days of the date notice was delivered. Rather, . . . it is
sufficient that the prosecutor “proceed promptly” and “move [ ] the
case to the point of readiness for trial” within the 180–day period.
People v. Hendershot, 357 Mich. 300, 304, 98 N.W.2d 568 (1959). . .
. [T]he relevant question is . . . whether action was commenced within
180 calendar days following the date the prosecutor received the
notice. If so, the rule has been satisfied unless the prosecutor’s initial
steps are “followed by inexcusable delay beyond the 180–day period
and an evident intent not to bring the case to trial promptly. . . .”
Id. at 246-47, 794 N.W.2d at 11-12 (emphasis in original).
argues that he did not receive jail credit for sixty-five days.
“[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990) (citations omitted). “In
conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle
v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) (citations omitted). Thus,
a violation of a state speedy trial law is not a basis for habeas relief.
Furthermore, the Michigan Court of Appeals stated that the statute applies
only to defendants who incarcerated in a state correctional facility at the time of
trial. Because Petitioner conceded that he was awaiting trial in a county jail, the
Court of Appeals concluded that the statute did not apply to him, even if he was a
parolee at the time.
Petitioner argues that it is a violation of his right to equal protection of the
law not to apply the 180-day rule to parolees. But the Court of Appeals, citing
People v. Lown, 488 Mich. 242, 246-47, 794 N.W.2d 9, 11-12 (2011), explained
that even if the statute applied to Petitioner, “[t]he prosecutor undertook action to
bring [Petitioner] to trial within 180 days and those preliminary actions were not
followed by inexcusable delay.” White, No. 297914, 2011 WL 2424504, at *7.
The state court’s factual findings are presumed correct, 28 U.S.C. § 2254(e)(1),
and its interpretation of state law binds this Court on habeas review. Bradshaw v.
Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 604 (2005) (citations omitted).
Petitioner is not entitled to habeas relief on his ninth claim.
I. The Appeal
In his tenth claim, Petitioner argues that the Michigan Court of Appeals
deprived him of his due process rights on appeal by virtue of declining to address
the merits of some of his claims. The reason supplied by the state court for
proceeding in this fashion was that Petitioner failed to brief the issues. In his
habeas application, Petitioner contends that the Michigan Court Rules do not
require that all issues be briefed. This court, however, does not function as an
additional state appellate court reviewing state-court decisions on state law or
procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988) (citation omitted).
Federal courts are obligated to accept as valid a state court’s interpretation of state
law and rules of practice of that state. Id. (citation omitted). Even if the trial court
violated the Michigan Court Rules, “[a] federal court may not issue the writ on the
basis of a perceived error of state law.” Harris, 465 U.S. at 41, 104 S. Ct. at 875.
The Court therefore declines to grant relief on claim ten.
J. The Sufficiency of the Evidence and the Sentencing Guidelines
Petitioner’s eleventh, and final, claim is a challenge to both the sufficiency
of the evidence sustaining his convictions as well as the trial court’s scoring of the
Michigan sentencing guidelines. The Court addresses these challenges in turn.
1. The Sufficiency of the Evidence
Petitioner alleges that the evidence at trial was insufficient to support the
jury’s verdict on counts two through four: false report of a bomb threat; carjacking;
and resisting and obstructing a police officer. The state appellate court disagreed,
holding that sufficient evidence supported all three convictions.
Pursuant to Supreme Court precedent, evidence adduced at trial is sufficient
to support a conviction whenever, “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, 319, 99 S. Ct. 2781, 2789 (1979). This standard must be applied
“with explicit reference to the substantive elements of the criminal offense as
defined by state law.” Id. at 324 n.16, 99 S. Ct. at 2792 n.16. “It is the province of
the fact-finder to weigh the probative value of the evidence and resolve any
conflicts in testimony[,]” not that of a reviewing court. Matthews v. Abramajtys,
319 F.3d 780, 788-89 (6th Cir. 2003). “Jackson leaves juries broad discretion in
deciding what inferences to draw from the evidence presented at trial . . . . This
deferential standard does not permit . . . fine-grained factual parsing.” Coleman v.
Johnson, __ U.S. __, 132 S. Ct. 2060, 2064 (2012) (citations and internal quotation
Because Petitioner’s sufficiency of the evidence challenge with respect to
the three challenged convictions were adjudicated on the merits by the Michigan
Court of Appeals, this Court must view the state court’s determination through the
lens of 28 U.S.C. § 2254(d)(1). As framed by AEDPA, the issue is whether the
Michigan Court of Appeals unreasonably applied Jackson to the facts of
Petitioner’s case. “[A] state-court decision rejecting a sufficiency challenge may
not be overturned on federal habeas unless the ‘decision was “objectively
unreasonable.”’” Parker v. Matthews, __ U.S. __, 132 S. Ct. 2148, 2152 (2012)
(quoting Cavazos v. Smith, 565 U.S. 1, __, 132 S. Ct. 2, 3 (2011) (per curiam)).
Given the procedural posture of this case, “the law . . . commands deference at two
levels . . . first, to the jury’s verdict as contemplated by Jackson, and, second, to
the state court’s consideration of the jury’s verdict as dictated by AEDPA.” Parker
v. Renico, 506 F.3d 444, 448 (6th Cir. 2007).
a. False Report of a Bomb Threat
Petitioner was charged with making a false report of an explosive substance
in a building and “communicat[ing] or caus[ing] the communication of the false
report to any other person, knowing the report to be false.” Mich. Comp. Laws §
750.411a(2)(a). This charge was based on the note that Petitioner handed the bank
teller, Ms. Earle. According to Petitioner, there was no evidence that he threatened
Ms. Earle with a bomb. Petitioner raised this argument in the Michigan Court of
Appeals on direct review and the court rejected it, finding “no merit to
[Petitioner’s] argument that because Earle was unable to read the part in the note
that concerned the bomb, [Petitioner] did not communicate a false bomb threat.”
White, No. 297914, 2011 WL 2424504, at *3. The court explained that “by
handing the note with a bomb threat to Earle, [Petitioner] intended, and did what
was necessary by him, to make known . . . the presence of a bomb . . . .” Id.
During trial, Ms. Earle testified that Petitioner handed her a note, which said,
“Do not call, the bomb will go off. Lock the door for 30 minutes. You are being
watched. Do not call.” (3/16/10 Trial Tr. (Vol. I) 131.) Ms. Earle admitted that,
because the handwriting was difficult to read, she read only the bottom part of the
note, which said, “Lock the door. Do not call for 30 minutes. You are being
watched.” (Id. at 123.) Police officer Michael Murphy, however, testified that,
when he interviewed Ms. Earle after the robbery, she described the note as saying:
“Do not call, the bomb will go off. Lock the door for 30 minutes. You are being
watched. Do not call.” (3/17/10 Trial Tr. (Vol. II) 21.) And Detective Jackson
testified that, when he encountered Petitioner on the street, Petitioner matched the
description of “the person who had just committed a bank robbery and threatened
to blow the bank up . . . .” (Id. at 46.)
A rational trier of fact could have concluded from this evidence, taken in the
light most favorable to the prosecution, that Petitioner communicated a bomb
threat to Ms. Earle. The state court’s determination that the evidence was
sufficient to support Petitioner’s conviction for false report of a bomb threat was
not objectively unreasonable.
The carjacking statute provides:
[a] person who in the course of committing a larceny of a motor
vehicle uses force or violence or the threat of force or violence, or
who puts in fear any operator, passenger, or person in lawful
possession of the motor vehicle, or any person lawfully attempting to
recover the motor vehicle, is guilty of carjacking . . . .
Mich. Comp. Laws § 750.529a(1). Carjacking includes attempts to commit a
larceny of a motor vehicle. Id. § 750.529a(2) (“As used in this section, ‘in the
course of committing a larceny of a motor vehicle’ includes acts that occur in an
attempt to commit the larceny . . . .”); People v. Williams, 288 Mich. App. 67, 80,
792 N.W.2d 384, 391 (Mich. Ct. App. 2010) (noting that, when the state legislature
amended the statute in 2004, it “removed the language ‘robs, steals, or takes,’
insinuating that the revised statute was intended to include attempts to commit the
Petitioner argues that there was no evidence he took or attempted to take
Detective Jackson’s vehicle, that he used or threatened to use force or violence or
that he put Detective Jackson in fear.
Detective Jackson testified that, when pulled his vehicle in front of
Petitioner, Petitioner walked toward his vehicle with his thumb up as if he were
hitchhiking. Petitioner was watching the marked patrol car behind Detective
Jackson as he did this. After Jackson stopped his car, Petitioner entered the
passenger side through an unlocked door, pressed his left shoulder against
Detective Jackson’s right shoulder, and placed both of his hands on the steering
wheel while Detective Jackson remained seated in the driver’s seat. Detective
Jackson felt the force of Petitioner’s body, and he initially was unable to shove
Petitioner out of the car. In his opinion, Petitioner was attempting to take his car in
an effort to get away from the marked squad car that Petitioner had been watching.
(3/17/10 Trial Tr. (Vol. II) 28-33, 46.)
A rational juror could have concluded from this testimony that Petitioner
used force in an attempt to take a vehicle from someone who was in lawful
possession of the vehicle. Thus, the evidence was sufficient to support Petitioner’s
conviction for carjacking and the state court’s determination in this regard was not
c. Resisting and Obstructing a Police Officer
[t]he elements of resisting and obstructing a police officer under MCL
750.81d(1) are: (1) the defendant assaulted, battered, wounded,
resisted, obstructed, opposed, or endangered a police officer, and (2)
the defendant knew or had reason to know that the person that the
defendant assaulted, battered, wounded, resisted, obstructed, opposed,
or endangered was a police officer performing his or her duties.
People v. Quinn, __ N.W.2d __, __, No. 309600, 2014 WL 2219246, at *4 (Mich.
Ct. App. May 29, 2014) (internal quotation marks and citation omitted).
Petitioner claims that there was insufficient evidence that he knew Detective
Jackson and Officer Wenger were police officers until long after the altercation
began. This claim is belied by the record. Detective Jackson testified that, after he
forced Petitioner out of his vehicle, the two of them fell to the ground. He
repeatedly stated, “Police, give me your hands.” He was able to get control of
Petitioner’s left hand, but not Petitioner’s right hand, which was underneath
Petitioner’s body. He could hear Officer Wenger’s siren as he struggled with
Petitioner. Officer Wenger then arrived and said the same thing: “Give me your
hands.” When Petitioner did not respond, Officer Wenger deployed a taser. After
the effect of the taser wore off, they got back on top of Petitioner, but they still
could not get Petitioner’s right hand and arm from underneath him, because he was
still resisting. Shortly afterward, they gained control of Petitioner’s right arm,
placed him in handcuffs, and took him into their custody. (3/17/10 Trial Tr. (Vol.
II) 33-38, 43.)
Officer Wenger testified that, as Petitioner and Detective Jackson wrestled
on the ground, he heard Detective Jackson inform Petitioner that he was a police
officer. Wenger indicated that he advised Petitioner that he was a police officer
and that he had to deploy his taser to get control of Petitioner. (Id. at 55-58.)
A rational trier of fact could have concluded from the evidence taken in the
light most favorable to the prosecution that Petitioner was aware of the officers’
identity as police officers and that he resisted and obstructed them. The evidence
therefore was sufficient to support Petitioner’s conviction for resisting and
obstructing a police officer.
Even if the Court had determined that the evidence was insufficient to
sustain the jury’s verdict, the state appellate court’s conclusion – that the
prosecutor produced sufficient evidence on the three counts in question – was
objectively reasonable. Petitioner therefore has no right to relief on the basis of his
challenge to the sufficiency of the evidence.
2. The Sentence
Petitioner claims that his sentence was based on improperly scored
guidelines and on inaccurate information. Specifically, Petitioner contends that
offense variable nine (number of victims) was improperly scored. Petitioner
contends that there was only one victim to the carjacking (Detective Jackson) and,
therefore, he should not have been scored points for multiple victims.
Like the Michigan Court of Appeals, this Court finds no merit to Petitioner’s
claim. To begin with, the state court’s interpretation and application of state
sentencing laws and guidelines is a matter of state concern only, Howard v. White,
76 F. App’x 52, 53 (6th Cir. 2003), and “[a] federal court may not issue the writ [of
habeas corpus] on the basis of a perceived error of state law.” Harris, 465 U.S. at
41, 104 S. Ct. at 875. Federal courts must “defer to a state’s judgment on issues of
state law” and “accept a state court’s interpretation of its statutes.” Israfil v.
Russell, 276 F.3d 768, 771-72 (6th Cir. 2001). Consequently, the contention that
the trial court miscalculated the state sentencing guidelines is not cognizable on
federal habeas corpus review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.
2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson
v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001).
Petitioner nevertheless maintains that he was sentenced on the basis of
inaccurate information in violation of his constitutional right to due process. To
prevail on this argument, Petitioner must show that his sentence was founded on
“misinformation of constitutional magnitude,” United States v. Tucker, 404 U.S.
443, 447, 92 S. Ct. 589, 592 (1972), or on “extensively and materially false”
information that he had no opportunity to correct through counsel, Townsend v.
Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948).
Petitioner received ten points for offense variable nine, which is appropriate
if “[t]here were 2 to 9 victims who were placed in danger of physical injury or
death.” Mich. Comp. Laws § 777.39(1)(c). Although Petitioner argues that
Detective Jackson was the only victim of the carjacking, the Michigan Court of
Appeals determined that Officer Wenger also was a victim. The state court noted
that Officer Wenger was placed in danger of physical injury when he helped
Detective Jackson restrain Petitioner after Jackson pushed Petitioner out of his
vehicle. Petitioner therefore has failed to show that he was sentenced on the basis
of materially false information which he had no opportunity to correct. His
constitutional claim lacks merit.
IV. CERTIFICATE OF APPEALABILITY
Petitioner may not appeal the Court’s denial of his habeas petition unless a
district or circuit judge issues a certificate of appealability. 28 U.S.C. §
2253(c)(1)(A). 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, 123
S. Ct. 1029, 1034 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.
1595, 146 (2000)). When, as here, “a district court has rejected the constitutional
claims on the merits, the showing required to satisfy § 2253(c) is straightforward:
“The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529
U.S. at 484, 120 S. Ct. at 1604.
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 issue a certificate of appealability. Petitioner
nevertheless may proceed in forma pauperis on appeal 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).
V. CONCLUSION AND ORDER
For all the reasons stated herein, the state court’s rejection of Petitioner’s
claims was objectively reasonable. Petitioner is therefore not entitled to the
issuance of the writ of habeas corpus.
IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
IT IS FURTHER ORDERED that Petitioner’s motion for relief from
judgment, which seeks appointment of counsel and an evidentiary hearing or a stay
(ECF No. 20), is DENIED. Petitioner has no constitutional right to appointment
of counsel in habeas proceedings, Post v. Bradshaw, 422 F.3d 419, 425 (6th Cir.
2005), and the state court’s adjudication Petitioner’s claims on the merits precludes
this Court from holding an evidentiary hearing on those claims, Pinholster, 131 S.
Ct. at 1398.
IT IS FURTHER ORDERED that Petitioner’s motion to supplement his
motion for summary judgment with additional caselaw (ECF No. 22) is
GRANTED. However, because no material facts are in dispute and Petitioner is
not entitled to judgment as a matter of law, Federal Rule of Civil Procedure 56,
Petitioner’s motion for summary judgment (ECF No. 21) is DENIED.
Dated: September 17, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Mark White, #228524
Chippewa Correctional Facility
4269 W. M-80
Kincheloe, MI 49784
Laura Moody, A.A.G.
Bruce H. Edwards, A.A.G.
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