St Ann v. Rapelje
Filing
23
OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus, ADOPTING IN PART 18 Report and Recommendation, & GRANTING IN PART CERTIFICATE OF APPEALABILITY Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ST. ANN,
Petitioner,
Case No. 13-11720
v.
Honorable Patrick J. Duggan
LLOYD RAPELJE,
Magistrate Judge Paul J. Komives
Respondent.
______________________________/
OPINION AND ORDER (1) ADOPTING REPORT AND
RECOMMENDATION IN PART, (2) DENYING PETITIONER’S WRIT
FOR HABEAS CORPUS, AND (3) DENYING IN PART AND GRANTING
IN PART A CERTIFICATE OF APPEALABILITY
Petitioner David St. Ann, a Michigan Department of Corrections prisoner
confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 16, 2013.
In 2009, a Wayne County jury convicted Petitioner of first-degree premeditated
murder, in violation of Michigan Compiled Laws § 750.316(1)(a), possession of a
firearm during the commission of a felony (“felony firearm”), in violation of
Michigan Compiled Laws § 750.227b(1), four counts of uttering and publishing, in
contravention to Michigan Compiled Laws § 750.249, and making a false
application for state identification, thereby violating Michigan Compiled Laws §
28.293. Petitioner contends that he is being held in violation of his constitutional
rights and challenges his convictions on grounds implicating the Fourth, Fifth, and
Sixth Amendments to the United States Constitution. After Respondent filed its
answer to the petition and the corresponding Rule 5 materials, the lawsuit was
referred to Magistrate Judge Paul J. Komives for all pretrial matters, proceedings,
including a hearing and determination of all non-dispositive matters pursuant to 28
U.S.C. § 636(b)(1)(A) and/or a report and recommendation on all dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(B).
This action is presently before the Court on Magistrate Judge Komives’s
Report and Recommendation (“R&R”), issued on May 6, 2014, and Petitioner’s
timely objections thereto. The R&R exhaustively analyzes the various claims
raised in Petitioner’s habeas application, concluding that each claim lacks merit.
Consistent with this conclusion, the R&R recommends denial of the petition and a
certificate of appealability on each of the issues raised therein.
For the reasons stated herein, the Court adopts the R&R – which it has
supplemented where necessary – except with respect to its recommendation that
the Court decline to issue a certificate of appealability. Thus, the Court denies
Petitioner’s habeas application and grants a certificate of appealability on the sole
issue of whether there was sufficient evidence adduced at trial to support the
homicide and felony firearm charges.
I.
STANDARD OF REVIEW
2
A.
Review of the R&R and Petitioner’s Objections
The Federal Magistrates Act of 1968, Pub. L. No. 90-578, 82 Stat. 1107,
“creates two different standards of review for district courts when a magistrate
court’s finding [or recommendation] is challenged in district court [by way of a
party’s objection].” United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001)
(internal quotations omitted); see also 28 U.S.C. § 636(b)(1)(A)-(B); Fed. R. Civ.
P. 72. When objections are filed to a report and recommendation on a dispositive
matter, such as the instant habeas petition, courts are directed to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Rules
Governing § 2254 Cases, Rule 8(b), 28 U.S.C. foll. § 2254. In completing this de
novo review, courts reexamine the issues and relevant evidence to determine
whether the recommendation should be “accept[ed], reject[ed], or modif[ied], in
whole or in part[.]” 28 U.S.C. § 636(b)(1)(C); Rules Governing § 2254 Cases,
Rule 8(b), 28 U.S.C. foll. § 2254. The de novo standard does not require a court
“to articulate all of the reasons it rejects a party’s objections.” Thomas v. Halter,
131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) (citations omitted).
B.
Review of Habeas Petitions
In assessing the viability of Petitioner’s claims, this Court is mindful that
review of this case is governed by the Antiterrorism and Effective Death Penalty
3
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) (“[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
4
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).
II.
ANALYSIS OF PETITIONER’S OBJECTIONS
Objection to Factual Background:
Petitioner first objects to the R&R’s recitation of the pertinent factual
background, claiming that it was error to rely exclusively on the “seriously flawed”
statement of facts set forth in the Michigan Court of Appeals’ decision. Despite
Petitioner’s suggestion that Magistrate Judge Komives was required to review the
5
facts of Petitioner’s case de novo, the law does not mandate such scrupulous
review of a state court criminal judgment. Rather, as indicated above, a state
court’s factual determinations are presumed correct on habeas review unless a
petitioner presents clear and convincing evidence to the contrary. 28 U.S.C. §
2254(e)(1); see also Sumner v. Mata, 449 U.S. 539, 547, 101 S. Ct. 764, 769
(1981) (“This interest in federalism recognized by Congress in enacting § 2254(d)
requires deference by federal courts to factual determinations of all state courts.”);
Tucker v. Palmer, 541 F.3d 652, 661 (6th Cir. 2008) (“[U]nder the strict standards
applied to habeas petitions, we cannot ignore the principles of federalism that
undergird deference to the state court’s findings[.]”) (emphasis in original).
Objection to Procedural Default Determination:
Petitioner next objects to the R&R’s conclusion that Petitioner procedurally
defaulted his third, fourth, and fifth claims. The Court finds no error with this
conclusion. Even if Magistrate Judge Komives’s analysis was incorrect, which it
is not, Magistrate Judge Komives determined that Petitioner’s ineffective
assistance of appellate counsel claims might provide the necessary cause to excuse
the default and therefore analyzed the merits of the procedurally-defaulted claims.
(R&R 10 (recognizing that “the cause and prejudice inquiry” of Petitioner’s
defaulted claims “merges with an analysis of the merits of” those defaulted
claims).) This course of action was entirely proper. See, e.g., Hudson v. Jones,
6
351 F.3d 212, 215 (6th Cir. 2003) (“[F]ederal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits.”)
(citing Lambrix v. Singletary, 520 U.S. 518, 525, 117 S. Ct. 1517, 1523 (1997)).
Because Magistrate Judge Komives addressed the merits of the otherwisedefaulted claims – reviewing them de novo because the state trial court did not
address them – Petitioner’s second objection is overruled. (R&R 13 n.1.)
Objection Regarding Claim I (Probable Cause and Jurisdictional Defect):
In his habeas application, Petitioner argues an entitlement to the issuance of
the writ of habeas corpus on the ground that the state court lacked jurisdiction to
try him on the murder and the felony firearm charges because the magistrate never
found probable cause to support either charge and because he was never arraigned
on either charge.1 In the R&R, Magistrate Judge Komives concludes that
1
Petitioner was originally charged with first-degree murder, felony firearm,
several counts of uttering and publishing, and making a false application for state
identification. On April 30, 2009, upon completion of the four-day preliminary
examination, the state court magistrate dismissed the first-degree murder and
felony firearm charges. (Wayne Cnty. Cir. Ct. Dkt., ECF No. 9-1.) Petitioner was
bound over on the remaining charges. (Id.) Petitioner was subsequently arraigned
on May 8, 2009. (Id.) At this arraignment, the prosecution filed a motion to
amend the information. (Id.) From what the Court is able to gather from the state
court docket, the information was amended by way of an order entered on May 14,
2009, which corrected Petitioner’s last name from Stann to St. Ann. (Id.) On July
10, 2009, the court heard, and subsequently granted, a motion to reinstate the
previously dismissed charges. (Id.) A review of the transcript from the July 10,
2009 hearing reveals that the state court judge, after hearing arguments from both
the prosecution and defense counsel, deemed the state magistrate’s decision to
dismiss the charges an abuse of discretion. Citing relevant state law authority, the
7
Petitioner is not entitled to habeas relief on this claim. Petitioner objects to this
conclusion, reiterating the arguments previously presented. This Court concurs
with the conclusion reached in the R&R for the reasons that follow.
To the extent Petitioner argues that his conviction must be voided because
there was no probable cause to support the charges, this argument fails. The
Constitution does not require a probable cause hearing to be conducted prior to a
criminal trial. Gerstein v. Pugh, 420 U.S. 103, 119, 125 n.26, 95 S. Ct. 854, 865,
869 n.26 (1975) (“Because the probable cause determination is not a constitutional
prerequisite to the charging decision, it is required only for those suspects who
suffer restraints on liberty other than the condition that they appear for trial.”)
Petitioner was arrested on a warrant, which by virtue of its issuance demonstrates a
finding of probable cause on all of the charges, including first-degree murder and
felony firearm. Id., 420 U.S. at 119 n.18, 95 S. Ct. at 866 n.18 (“A person arrested
under a warrant would have received a prior judicial determination of probable
cause.”) Although the state court magistrate concluded upon completion of the
preliminary examination that there was insufficient evidence to bind Petitioner
over on the murder and felony firearm charges, Petitioner was bound over on the
remaining charges. There was therefore no “significant pretrial restraint of
state court concluded that reinstatement of the homicide and felony firearm charges
was proper, as it would not result in unfair surprise or otherwise prejudice
Petitioner. (7/10/09 Hrg. Tr., ECF No 9-6.)
8
[Petitioner’s] liberty” in violation of the Fourth Amendment. Id. at 125, 95 S. Ct.
at 868-69. Furthermore, the state court judge presiding over the motion to reinstate
did, in fact, make a probable cause determination before granting the motion. See
note 1, supra. Petitioner does not argue that the hearing on this motion, at which
Petitioner was present, was unreliable.
Even if Petitioner’s argument had merit and the charges were erroneously
reinstituted, the Court sees no reason to depart “from the established rule that
illegal arrest or detention does not void a subsequent conviction.” Id. at 119, 95 S.
Ct. at 865 (citing Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509 (1952) and Ker v.
Illinois, 119 U.S. 436, 7 S. Ct. 225 (1886)); id. at 119, 95 S. Ct. at 866 (“[A]
conviction will not be vacated on the ground that the defendant was detained
pending trial without a determination of probable cause.”) (citations omitted).
“[A] state court’s decision to hold a person for trial does not implicate a federal
constitutional right, especially when there is sufficient evidence of the crime
presented at trial to satisfy the Due Process Clause.”2 Fawaz v. Wolfenbarger, No.
09-14965, 2013 U.S. Dist. LEXIS 49469, at *33 (E.D. Mich. Apr. 5, 2013)
(Lawson, J.); cf. United States v. Mechanik, 475 U.S. 66, 73, 106 S. Ct. 938, 943
(1986) (holding harmless any defect with the grand jury’s institution of charges
where defendant was subsequently tried, and found guilty, by a petit jury).
2
The Court finds that there was sufficient evidence to convict Petitioner, as
discussed infra.
9
In sum, because Petitioner was bound over on several charges, there was no
additional deprivation of liberty caused by reinstitution of the homicide and felony
firearm charges. Thus, the claimed probable cause error, which was subsequently
remedied by the jury’s verdict, does not provide a basis for habeas relief.
Petitioner also suggests that his conviction should be voided because the
failure to make a probable cause determination deprived the state court of
jurisdiction over him. However, as Magistrate Judge Komives notes, “[a]
determination of whether a state court is vested with jurisdiction under state law is
a function of the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d
1058, 1059 (6th Cir. 1976) (per curiam). Moreover, whether a charging document
is sufficient to confer jurisdiction on a trial court is also a state law issue which is
not cognizable on federal habeas review unless an amendment to that document
deprives a petitioner of his due process right to fair notice of the charges against
him.3 Strunk v. Martin, 27 F. App’x 473, 475 (6th Cir. 2001) (citations omitted).
Pursuant to Michigan law, “[o]nce a preliminary examination is held and the
defendant is bound over on any charge, the circuit court obtains jurisdiction over
The Sixth Amendment provides, in pertinent part, that a criminal defendant
has the right to “be informed of the nature and cause of the accusation against
him.” U.S. Const. amend. VI. As explained by the Sixth Circuit, “[n]otice and an
opportunity to defend against the charges as guaranteed by the Sixth Amendment
are an integral part of the due process protected by the Fourteenth Amendment,
and are accordingly applicable in state prosecutions.” Strunk v. Martin, 27 F.
App’x 473, 475 (6th Cir. 2001) (citations omitted).
3
10
the defendant.” People v. Unger, 278 Mich. App. 210, 221, 749 N.W.2d 272, 285
(Mich. Ct. App. 2008) (citing People v. Goecke, 457 Mich. 442, 458-59, 579
N.W.2d 868, 875-77 (1998)). Contrary to Petitioner’s suggestion, such jurisdiction
is not dependent upon the filing of a return by the examining magistrate; rather,
“having once vested in the circuit court, personal jurisdiction is not lost even when
a void or improper information is filed.” Goecke, 457 Mich. at 458-59, 579
N.W.2d at 876 (citation omitted). “The only legal obstacle to amending the
information to reinstitute an erroneously dismissed charge is that the amendment
would unduly prejudice the defendant because of ‘unfair surprise, inadequate
notice, or insufficient opportunity to defend.’”4 Unger, 278 Mich. App. at 221,
749 N.W.2d at 285 (quotation omitted).
Petitioner alleges that he was never notified of the substance and nature of
the crimes for which he was charged. A cursory review of the state court record
belies this claim, as Petitioner’s preliminary examination lasted four days and
Petitioner was present at the July 10, 2009 hearing to reinstate the previously
dismissed charges.
In what seems like a final attempt to persuade this Court that a probable
cause determination by the magistrate was a prerequisite to the vesting of
jurisdiction in the state court, Petitioner asserts that the Michigan Court of Appeals
4
In this regard, Michigan law is consistent with the federal Constitution.
11
did not address the jurisdictional and probable cause contentions on direct appeal.
According to Petitioner, this deficiency illustrates the inadequacy of Michigan’s
corrective processes to protect constitutional rights. To the extent Petitioner makes
this argument under the belief that such allegations will permit him to surmount the
barrier created by Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976) (holding
that federal habeas review of a petitioner’s arrest or search is barred where the state
court has provided a full and fair opportunity to litigate an illegal arrest or a search
and seizure claim), he is incorrect. This is because the Michigan Court of Appeals
did address the probable cause and jurisdictional arguments, albeit somewhat
indirectly, when it indicated that due to its conclusion that Petitioner’s conviction
was supported by sufficient evidence at trial, it need not address Petitioner’s
“argument that the trial court erred in denying his motion to quash the murder
charge.” People v. St. Ann, No. 294569, 2010 WL 4485910, at *4 (Mich. Ct. App.
Nov. 9, 2010) (per curiam). The only fair reading of this language is that the state
court’s determination that there was sufficient evidence to convict rendered any
argument that there was insufficient evidence to charge irrelevant.
In sum, Petitioner’s probable cause and jurisdictional claims are not the
types of claims cognizable on habeas review, and, even assuming they were,
Petitioner’s arguments are unavailing. Because habeas relief is not warranted on
either ground, the Court overrules Petitioner’s objection.
12
Objection Regarding Claims II and V (Sufficiency of Evidence):
Petitioner objects to the R&R’s conclusion that habeas relief is not
warranted on insufficiency of the evidence grounds. Petitioner contends that the
prosecution failed to present evidence establishing his guilt beyond a reasonable
doubt on either the homicide or felony firearm charge. More specifically,
Petitioner explains that the record is entirely devoid of any evidence placing him at
the scene of the murder, indicating that he had actual or constructive possession of
the firearm used to murder the victim (or that he is the individual who pulled the
trigger), or establishing that he participated in the killing whatsoever. While
recognizing that Michigan law permits a conviction to stand even when based
entirely upon circumstantial evidence, Petitioner suggests that the evidence in his
case amounted “to only a reasonable speculation and not to sufficient evidence.”
Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (granting a sufficiency
challenge by a habeas petitioner where prosecution did not present evidence
placing him at the scene of the crime and citing cases).
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
13
“with explicit reference to the substantive elements of the criminal offense as
defined by state law.” Id., 443 U.S. 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 marks omitted).
Because Petitioner’s sufficiency of the evidence challenge with respect to
the first-degree murder charge was 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)).
When confronted with a sufficiency of the evidence challenge adjudicated on the
merits in the state court, as is the posture of this case, “the law . . . commands
14
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).
“In order to convict a defendant of first-degree premeditated murder, the
prosecution must first prove that the defendant intentionally killed the victim.”
Unger, 278 Mich. App. at 223, 749 N.W.2d at 286 (citation omitted). This, as
opposed to the premeditation element, is where Petitioner takes issue with the
sufficiency of the evidence; in other words, Petitioner challenges his conviction on
the basis that there was no direct or physical evidence placing him at the
intersection of Frederick and Dubois (where the murder victim was discovered) or
otherwise establishing a connection between him and the murder weapon.5
Petitioner not only objects to the ultimate determination that there was sufficient
evidence; he also objects to the R&R’s use of a timeline theory to establish guilt
and to the references to motive and opportunity, as neither is an element of the
offense.
5
Although such evidence would have bolstered the prosecution’s case, the
Court notes that Officer Eric Smith testified that the area where the victim was
discovered – the intersection of Frederick and Dubois in Detroit, Michigan – was
blighted and largely vacant, containing only a few scattered structures among the
otherwise overgrown and abandoned lots, and that the area lacked illumination of
any sort. (8/17/09 Trial Tr. 172-73, ECF No. 9-8.) Taking this into consideration
along with the fact that the shooting death transpired in the early morning hours, it
is hardly surprising that the prosecution was unable to introduce evidence or
testimony placing Petitioner at the crime scene.
15
Despite acknowledging that circumstantial evidence may be sufficient to
sustain a conviction, Petitioner contends that the evidence adduced at trial would
not permit any rational trier of fact to find him guilty of first-degree premeditated
murder. This Court, like Magistrate Judge Komives and the Michigan Court of
Appeals, disagrees. Because the R&R discusses the evidence with respect to the
murder conviction, the Court will not rehash it here. Suffice it to say that the
discussion of the timing of the events,6 motive,7 and opportunity8 served as
circumstantial evidence placing Petitioner at the scene of the crime with the victim
6
Although the exact time Petitioner allegedly picked up the victim varied
slightly depending on whose testimony was credited, the Michigan Court of
Appeals indicated that “family members last saw [the victim] alive leaving his
home with [Petitioner] in a red Cadillac” “at 2:40 a.m.” People v. St. Ann, No.
294569, 2010 WL 4485910, at *1, *3 (Mich. Ct. App. Nov. 9, 2010) (per curiam).
Officer Smith testified that he and his partner were dispatched to the intersection of
Frederick and Dubois at approximately 3:00 a.m., and that upon arrival, the victim
was dead. (8/17/09 Trial Tr. 172, ECF No. 9-8.) Officer Smith further testified
that it would take an individual approximately ten to fifteen minutes at that hour to
drive from the location the victim was picked up to the place where he was
discovered. (Id. at 179.)
7
The prosecution introduced evidence indicating that Petitioner financially
benefited from life insurance policies taken out on the victim. “Evidence of
insurance on the life of the deceased is admissible in a prosecution for murder as
long as it can be established that the defendant was aware of the insurance policy
before the killing took place.” People v. Unger, 278 Mich. App. 210, 224, 749
N.W.2d 272, 286 (Mich. Ct. App. 2008) (citation omitted).
8
“[Petitioner] also had the opportunity to kill the victim. Evidence of
opportunity is logically relevant in a prosecution for murder.” People v. Unger,
278 Mich. App. 210, 224, 749 N.W.2d 272, 286 (Mich. Ct. App. 2008) (citation
omitted).
16
on the night in question. United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006)
(“Circumstantial evidence alone is sufficient to sustain a conviction and such
evidence need not remove every reasonable hypothesis except that of guilt.”);
Unger, 278 Mich. App. at 223, 749 N.W.2d at 286 (noting that under Michigan
law, “circumstantial evidence and reasonable inferences arising therefrom may
constitute satisfactory proof of the elements of [a homicide] offense”). Upon
reviewing the evidence in the light most favorable to the prosecution and according
the deference required by AEDPA, this Court is unable to conclude that the
Michigan Court of Appeals unreasonably applied Jackson in holding that sufficient
evidence supported the first-degree murder conviction.
Petitioner also challenges the sufficiency of the evidence supporting the
felony firearm offense. To sustain a conviction for felony firearm in Michigan, the
prosecution must establish, beyond a reasonable doubt, that an individual
possessed a firearm while committing, or while attempting to commit, a felony
offense. Mich. Comp. Laws § 750.227b(1). Pursuant to Michigan law, “[a] person
has ‘possession’ of a weapon when it is ‘accessible and available . . . at the time
[the crime is committed].’” People v. Williams, 198 Mich. App. 537, 541, 499
N.W.2d 404, 406 (Mich. Ct. App. 1993) (quotation omitted) (second alteration in
original). Actual possession of the firearm at the time of arrest is not required and
access to the weapon is not to be determined solely by reference to the arrest. Id.
17
At the outset, the Court notes that neither the Michigan Court of Appeals nor
the R&R discusses the evidence underlying the felony firearm conviction. The
Court infers that this omission was predicated upon a belief that because there was
sufficient evidence to convict Petitioner of first-degree murder, it follows that once
the jury found that Petitioner killed the victim (who died of several gunshot
wounds), he must have possessed a firearm during the commission of that crime (a
felony).9
Petitioner appears to generally challenge the possession element of the
offense, as he takes issue with the fact that no evidence was introduced to support a
finding that he was in possession of a firearm. Petitioner points out that no firearm
was ever recovered. This fact, in isolation, is immaterial, as the Michigan Court of
Appeals has indicated that “[w]here conviction of an offense requires proof beyond
a reasonable doubt that a defendant possessed a firearm, this element may be
proven without the actual admission into evidence of the weapon.” People v.
Hayden, 132 Mich. App. 273, 296, 348 N.W.2d 672, 684 (Mich. Ct. App. 1984).
Despite the apparent breadth of the language just quoted, Hayden contains an
important limitation in that the court articulated this rule after approvingly citing
dictum from another case providing that “where the victim testifies that he saw a
9
The Court notes that a firearms expert testified at trial. Based on the
ammunition he analyzed (retrieved from the victim’s body), all of the shots were
fired from one firearm. (8/19/09 Trial Tr. 29, ECF No. 9-10.)
18
gun, the defendant may permissibly be convicted of felony-firearm even if the
weapon is never recovered.” Id. (citing People v. Mason, 96 Mich. App. 47, 292
N.W.2d 480 (Mich. Ct. App. 1980)). In this case, in addition to not producing the
murder weapon or introducing evidence that Petitioner possessed the weapon (by,
for example, offering testimony that Petitioner’s fingerprints were found on the
bullets lodged in the victim’s body), the prosecution offered no testimony
regarding Petitioner’s access to any firearm. This lack of testimony would give
this Court greater pause had the jury acquitted Petitioner on the homicide charge.
Cf. Parker, 506 F.3d at 541 (sustaining a petitioner’s sufficiency challenge to a
felony firearm conviction and explaining that the state court’s “constructivepossession-by-elimination chain of reasoning would have more force had Parker
been convicted on any of the substantive crimes charged”) (emphasis in original).
While the Court does not doubt that testimony tying Petitioner to a firearm would
have strengthened the case against him, several bullets were recovered from the
victim’s body, indicating that whoever killed the victim – a felony offense if
lacking in legal justification – used a firearm to do so.
To summarize, it is the task of this Court to examine only whether the
Michigan Court of Appeals was unreasonable in concluding that some rational trier
of fact could examine the evidence adduced at trial and conclude that Petitioner
was guilty of the charged offenses beyond a reasonable doubt. Having engaged in
19
a careful and thorough review of the evidence, and being mindful of the various
levels of deference this Court must accord to the state court’s determination, the
Court concludes that the first-degree murder and felony firearm convictions are
supported by sufficient, albeit circumstantial, evidence. A rational trier of fact in
the state court proceedings could have concluded from the evidence taken in the
light most favorable to the prosecution that Petitioner premeditated and deliberated
the murder and that he employed a firearm during the commission of that offense.
For this reason, the state appellate court’s conclusion that the evidence was
sufficient to support the jury’s verdict was not unreasonable.
Objection Regarding Claim III (Jury Instructions):
With respect to Magistrate Judge Komives’s treatment of Petitioner’s claims
relating to the jury, Petitioner objects to the finding regarding the propriety of the
jury instructions, claiming that the instructions improperly shifted the burden of
proof.10 As explained in the R&R, this claim lacks merit and the Court adopts the
analysis contained therein. One portion of Petitioner’s objection bears mentioning,
however. Petitioner suggests that habeas relief is warranted because in rejecting
Petitioner’s motion for relief from judgment, the state trial court indicated that the
jury instruction objection should have been raised on direct appeal. However, the
state court went on to analyze whether Petitioner’s claim of ineffective assistance
10
Petitioner does not object to Magistrate Judge Komives’s conclusion
regarding the polling of the jury.
20
of counsel satisfied the state law cause and prejudice standard to excuse the failure
to raise the argument earlier. Ultimately, the trial court determined that because
the claimed instructional error lacked merit, counsel could not be deemed
ineffective for failing to raise the issue. This determination was entirely reasonable.
Objection Regarding Claims IV & V (Prosecutorial Misconduct):
Petitioner objects to Magistrate Judge Komives’s findings that the
prosecutor did not commit misconduct by presenting perjured testimony to the jury
and that comments made by the prosecutor were not improper.
Petitioner first contends that the prosecutor elicited perjured testimony,
evidenced by various testimonial inconsistencies between witnesses and, in some
cases, between a witness’s preliminary examination testimony and trial testimony.
He also cites one witness’s demeanor as demonstrating that she was lying during
her testimony. As Magistrate Judge Komives explained, Petitioner has not
discharged his burden of demonstrating that these inconsistencies amounted to
perjured testimony. See, e.g., Byrd v. Collins, 209 F.3d 486, 817-18 (6th Cir.
2000) (petitioner must establish that challenged testimony was “indisputably
false”); United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) (“Mere
inconsistencies in testimony by government witnesses do not establish the
government’s knowing use of false testimony.”). Having reviewed Petitioner’s
21
objection on this point, the Court finds no reason to disturb, or otherwise elaborate
upon, Magistrate Judge Komives’s analysis.
Petitioner’s second claim of prosecutorial misconduct fares no better. He
contends that the prosecution prejudiced the jury by drawing unwarranted
inferences from the evidence surrounding the insurance policies and by referring to
Petitioner’s involvement in an insurance “scheme” during closing argument. As an
initial matter, the Sixth Circuit “has been reluctant to grant habeas petitions based
on improper prosecutorial statements at closing argument.” Wilson v. Mitchell,
250 F.3d 388, 399 (6th Cir. 2001). Further, “[e]ven if the prosecutor’s use of the
word ‘scheme’ was improper, the comment falls far short of even more egregious
comments which have been held not to deprive a defendant of a fair trial.” (R&R
29 (citing cases).) Having reviewed the record, the R&R, and Petitioner’s
objection, the Court concludes that Petitioner has not demonstrated that habeas
relief is warranted on this ground.
Objection Regarding Biased Judge (Claim V):
In the R&R, Magistrate Judge Komives describes the requirement of judicial
impartiality to a fair trial and concludes that Petitioner has not satisfied his burden
of demonstrating that the trial judge evidenced any bias toward him. Petitioner
objects to this conclusion on the basis that the trial judge made a passing remark at
the motion for reinstatement that he was “cynical” and that the trial judge’s
22
explanation of the bind over process to the jury influenced the jury’s guilt
determination. Both objections are factually lacking in merit and, as the R&R
indicates, fail to show that the state trial judge harbored any bias.11 Habeas relief
is not warranted on this ground.
Objection Regarding Ineffective Assistance of Counsel (Claim VI):
Petitioner objects to the R&R’s determination that Petitioner was not denied
the effective assistance of trial or appellate counsel. Petitioner does not state his
objection with specificity but rather points this Court to his memorandum of law in
support of his habeas petition and to his reply brief. The filing of general
objections does not typically suffice to preserve the issue for appeal. Robert v.
11
Petitioner’s interpretation of the “cynical” remark is entirely unfounded.
The trial judge did not admit to being “cynical” against Petitioner during the July
10, 2009 hearing; rather, the trial judge stated:
As I said earlier, though perhaps in a cynical kind of way, if it was
required that every time somebody murdered someone that there be
direct evidence that someone was actually there, they couldn’t be held
liable, then they probably would have to close down the prosecution’s
office on murder cases, or at least there would be a tremendous
problem with presenting those kinds of cases if that was the standard.
(7/10/09 Hrg. Tr. 18.)
Secondly, Petitioner indicates that the trial judge “informed the jurors that
Petitioner was bound over for trial because the elements existed by a probable
cause standard. The jurors . . . concluded that since another judge had already
found guilt by a probable cause standard – the defendant had to be guilty of
something.” (Pet’r’s Obj. 39-40.) This argument is unpersuasive. Further, to the
extent Petitioner suggests that the trial judge’s explanation of the bind over process
improperly shifted the burden of proof to the defense, this Court does not agree.
23
Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (citation omitted); Cole v. Yukins, 7 F.
App’x 354, 356 (6th Cir. 2001) (“The filing of vague, general, or conclusory
objections does not meet the requirement of specific objections and is tantamount
to a complete failure to object.”). However, recognizing that this Court is faced
with “the sobering issue of whether a man was unconstitutionally deprived of his
liberty[,]” the Court does not dismiss Petitioner’s objection lightly. Tucker, 541
F.3d at 654. Having carefully and thoroughly reviewed the record and the R&R,
the Court is not persuaded that Petitioner’s ineffective assistance claims have any
merit. Accordingly, this objection is overruled.
Objection Regarding Magistrate Judge Komives’s Conclusion:
Despite being labeled as an objection, this portion of Petitioner’s objections
serves as its conclusion. To the extent Petitioner asks this Court to review his
objections to the R&R de novo, this the Court has done.
III.
CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254; 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b).
Title 28 U.S.C. § 2253 governs appeals in § 2254 proceedings and provides, in
pertinent part: “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. §
24
2253(c)(2). In explaining the meaning of a “substantial showing” necessary to
receive of a certificate of appealability, the Supreme Court has explained that when
a district court denies a habeas petition on the merits of the claims presented, a
certificate may issue if the petitioner demonstrates that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000); see also
Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003) (“A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.”).
If a petitioner makes the requisite showing and a district court grants a certificate
of appealability, the court must indicate the specific issue(s) for which the
applicant made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(3).
While the Court does not believe that Petitioner is entitled to a writ of
habeas corpus for the reasons set forth in this Opinion and Order, the Court
acknowledges that the issue of whether there was sufficient evidence to sustain
both the first-degree premeditated murder and felony firearm convictions may be
debatable among jurists of reason. A Sixth Circuit panel once explained:
The Jackson standard is as easy to articulate as it is difficult to apply.
Where there is only circumstantial evidence available, as in the instant
case, this ineffable standard is especially challenging, and even more
so when that evidence supports a host of permissible inferences.
25
Newman, 543 F.3d at 796; see also Brown v. Palmer, 441 F.3d 347, 352 (6th Cir.
2006) (noting that even post-AEDPA, courts should continue to “distinguish
reasonable speculation from sufficient evidence . . . in establishing that the state
court’s application of [Jackson] was reasonable.”) In light of the absence of
evidence or testimony regarding Petitioner’s possession of the murder weapon, or,
for that matter, any weapon, the Court believes jurists of reason may differ on the
issue of whether the jury found Petitioner guilty of the homicide and firearm
charge based on a chain of attenuated inferences. For this reason, the Court does
not believe that Petitioner should be denied the opportunity to seek appellate
review of this issue, and will therefore grant a certificate of appealability on this
issue. The Court does not find the remaining issues presented in the petition to be
debatable among jurists of reason.
IV.
CONCLUSION AND ORDER
Having reviewed the R&R and Petitioner’s objections thereto, this Court
finds that Petitioner has failed to demonstrate that the Michigan state courts
applied law that was contrary to, or involved an unreasonable application of,
Supreme Court precedent. The Court therefore adopts the R&R, as supplemented
by this Opinion and Order, with the exception that the Court does not adopt the
recommendation that the Court decline to issue a certificate of appealability.
Accordingly,
26
IT IS ORDERED that Petitioner’s application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED;
IT IS FURTHER ORDERED that a certificate of appealability is
GRANTED on the issue of whether Petitioner’s convictions for first-degree
premeditated murder and felony firarm are supported by sufficient evidence.
Dated: August 12, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
David St Ann, # 741290
Saginaw Correctional Facility
9625 Pierce Road
Freeland, MI 48623
Laura Moody, A.A.G.
Linus R. Banghart-Linn, A.A.G.
Magistrate Judge Paul J. Komives
27
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