McFarland v Rivard

Filing 19

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Granting in part a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAJUAN MCFARLAND,
Case Number: 2:13-CV-14564
HON. ARTHUR J. TARNOW

Petitioner,
v.
STEVEN RIVARD,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY
Petitioner JaJuan McFarland has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner, who is presently incarcerated at the Kinross
Correctional Facility in Kincheloe, Michigan, challenges his convictions for two counts
of armed robbery, felon in possession of a firearm, and felony firearm. He challenges his
convictions on the grounds that he was denied his rights under the Confrontation Clause,
the trial court erred in allowing the admission of other act evidence, and the cumulative
effect of errors undermined confidence in the reliability of the verdict. Respondent,
through the Attorney General’s Office, has filed an answer in opposition to the petition
arguing that these claims are meritless. The Court denies the petition and grants a
certificate of appealability for Petitioner’s Confrontation Clause claim.

I.

Background
Petitioner’s convictions arise from the robbery of Valencia Morris and Roderick

Billups in the City of Detroit on November 1, 2010. The Michigan Court of Appeals
provided this summary of the testimony presented at trial:
Defendant’s convictions arise from the robbery of two individuals who
were walking down the street one morning. The victims, a woman and her
fiancé, were walking when they were approached by two men, both
carrying guns. Defendant was identified as one of the men. The men
robbed them of a cellular telephone, a wallet, and cigarettes. With the
assistance of a passing motorist, the two victims were able to call 911 and
report the robbery. A short time later, the victims reported observing
defendant and his accomplice robbing two other individuals across the
street. Police arrived on the scene, and the two men fled. Defendant
stopped in front of a building, where he was apprehended. A man, Richard
Richardson, approached and advised police that he was just robbed by
defendant. Another witness, Diane Dickerson, advised police that
defendant threw a gun on top of the building. With the assistance of the fire
department, police recovered a gun from the roof of the building. Although
defendant was charged with the purported robbery that occurred across the
street, the charges were dismissed when those witnesses could not be
located.
People v. McFarland, No. 304647, 2013 WL 514729 at *1 (Mich. Ct. App. Feb. 12,
2013).
Following a jury trial in Wayne County Circuit Court, Petitioner was sentenced as
a fourth habitual offender to concurrent terms of 16 to 35 years’ imprisonment for each of
the armed robbery convictions, and 1 to 5 years’ imprisonment for the felon-in-possession
conviction, to be served consecutively to 2 years’ imprisonment for the felony-firearm
conviction.

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Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims:
I.

The trial court violated McFarland’s right to confrontation by permitting the
introduction of out of court testimony that McFarland was in possession of
a firearm just prior to his arrest.

II.

The trial court abused its discretion when it allowed the prosecution to
introduce inadmissible other acts evidence.

III.

The cumulative effect of errors undermine confidence in the reliability of
the verdict.

The Michigan Court of Appeals affirmed Petitioner’s convictions. Id. Petitioner
filed an application for leave to appeal in the Michigan Supreme Court, raising the same
claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied
leave to appeal. People v. McFarland, 495 Mich. 866 (Mich. 2014).
Petitioner then filed this habeas petition. He raises the same claims raised in state
court.
II. Standard
This habeas petition is reviewed under the exacting standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
110 Stat. 1214 (Apr. 24, 1996). Under AEDPA, a federal court cannot grant habeas relief
with respect to any claim adjudicated on the merits in a state-court proceeding unless the
state adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
quoting Williams, 529 U.S. at 413. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (2011),
quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the
view that habeas corpus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal. . . . As a
condition for obtaining habeas corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law

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beyond any possibility for fairminded disagreement.” Id. at 786-87 (internal quotation
omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
III. Discussion
A. Confrontation Clause Claim
Petitioner’s first claim for habeas relief concerns an alleged violation of the
Confrontation Clause. City of Detroit police officer Edward Sumler, who responded to
the robbery of Morris and Billups, testified that he saw Petitioner near the area of the
robbery and noted that Petitioner matched the description of the robber given to him by
Morris and Billups. Petitioner attempted to flee but was caught and handcuffed by
Officer Sumler and his partner. A second suspect fled. After Officer Sumler handcuffed
Petitioner, Officer heard someone yelling, “He just robbed me.” 5/4/11 Tr., at 12, ECF
No. 8-8, Pg. ID 357. About a minute later, a woman, Diane Dickerson, approached
Officer Sumler and said, “I just saw him throw a gun on top of the building.” Id. at 16,
ECF No. 8-8, Pg. ID 361. A loaded handgun was retrieved from the roof of the building
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indicated by Dickerson. Petitioner argues that the admission of Dickerson’s statement
regarding the handgun violated his right of Confrontation.
In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that
out-of-court statements that are testimonial in nature are barred by the Confrontation
Clause unless the witness is unavailable and the defendant had a prior opportunity for
cross-examination regardless of whether the trial court finds the statements to be reliable.
Statements are testimonial in nature when the primary purpose is “to establish or prove
past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547
U.S. 813, 822 (2006). “Statements taken by police officers in the course of interrogations
are ... testimonial.” Crawford, 541 U.S. at 52. Statements are non-testimonial when they
are “made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.” Id. at 822. In Michigan v. Bryant, 562 U.S. 344, 358 (2011), The
Supreme Court held that, when “the ‘primary purpose’ of an interrogation is to respond to
an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not
within the scope of the Clause.”
The Michigan Court of Appeals found no Confrontation Clause violation because
Dickerson’s statement was not testimonial. McFarland, 2013 WL 514729 at *2. The
state court, applying the Supreme Court’s analysis in Bryant, reasoned that the statement
was not “taken in anticipation of a criminal proceeding and as a substitute for trial
testimony, but rather, occurred in the context of an ongoing emergency when police were
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attempting to secure the perpetrators of a crime and the weapon used in the commission
of the crime, ... and offered to show why the police acted as they did.” Id.
The state court’s denial of Petitioner’s Confrontation Clause Claim is a reasonable
application of Supreme Court precedent. Dickerson’s statement to police was unsolicited.
It was made to apprise the police where a firearm was located at a time when one suspect
remained at large. The state court reasonably concluded that the statement was made with
a primary purpose of bringing to an end an ongoing threat. See Williams v. Illinois, —
U.S. —, 132 S. Ct. 2221, 2243 (2012). Because Dickerson did not make her statement in
the context of gathering evidence for trial, the Confrontation Clause was not implicated.
Habeas relief is denied.
B. Admission of Other Act Evidence
In his second claim for habeas corpus relief, Petitioner argues that the trial court
erred in admitting evidence of an alleged second robbery of two individuals shortly after
the robbery of Morris and Billups. That case was dismissed with prejudice at the
preliminary examination because the police were unable to locate the purported victim.
The trial court allowed Morris to testify than an unknown individual stated, “They just
robbed me.” 3/3/11 Tr., at 154, ECF No. 8-7, Pg. ID 297. And, allowed Morris to testify
that her perception was that the individuals had been robbed. Petitioner claims admission
of this evidence violated his due process rights because its admission was contrary to
Michigan Rule of Evidence 404(b).

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“[S]tate-court evidentiary rulings cannot rise to the level of due process violations
unless they ‘offend[ ] some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552
(6th Cir. 2000) quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). The Supreme
Court has declined to hold that the admission of “other acts” evidence is so extremely
unfair that it violates fundamental conceptions of justice. Dowling v. United States, 493
U.S. 342, 352-53 (1990). The Court has discussed when other acts testimony is
permissible under the Federal Rules of Evidence, see Huddleston v. United States, 485
U.S. 681 (1988), but has not addressed the issue in constitutional terms. Such matters are
more appropriately addressed in codes of evidence and procedure than under the Due
Process Clause. Dowling, 493 U.S. at 352. “There is no clearly established Supreme
Court precedent which holds that a state violates due process by permitting propensity
evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003). Consequently, there is no “clearly established federal law” to which the
state court's decision could be “contrary” within the meaning of section 2254(d)(1). Id. at
513. Therefore, the Court denies habeas relief on this claim.
C. Cumulative Effect of Alleged Errors
Finally, Petitioner alleges that he is entitled to habeas relief because the cumulative
effect of trial errors deprived him of a fair trial and due process of law. On habeas
review, a claim that the cumulative effect of errors rendered a petitioner’s trial
fundamentally unfair is not cognizable. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir.
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2011) citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir.2005)), cert. denied sub nom
Sheppard v. Robinson, — U.S. —, 132 S.Ct. 2751 (2012). Therefore, Petitioner is not
entitled to relief on this claim.
IV. Certificate of Appealability
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R.App. P. 22(b). A
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). When a court
rejects a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court’s assessment
of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by demonstrating that ... jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying that standard, a district court
may not conduct a full merits review, but must limit its examination to a threshold inquiry
into the underlying merit of Petitioner’s claims. Id. at 336-37. “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.
The Court concludes that reasonable jurists could debate its resolution of
Petitioner’s Confrontation Clause claim. The Court concludes that reasonable jurists
would not debate its denial of Petitioner’s remaining claims. Thus, the Court grants in
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part and denies in part a COA. The Court grants Petitioner permission to proceed on
appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
V. Conclusion
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is
DENIED. Furthermore, the Court GRANTS a certificate of appealability on Petitioner’s
sufficiency of the evidence claim and DENIES a certificate of appealability with respect
to the remaining claims. The Court finds Petitioner may proceed on appeal in forma
pauperis because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 29, 2015
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on October 29, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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