Harris v. Rivard
Filing
14
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a Certificate of Appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LUTHER CLEVELAND HARRIS,
Petitioner,
CASE NO. 2:14-12443
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
v.
STEVEN RIVARD,
Respondent.
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OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Luther Cleveland Harris, (“petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for possession of a firearm during the
commission of a felony (felony-firearm), M.C.L.A. 750.227b, and felon in
possession of a firearm, M.C.L.A. 750.224f. For the reasons stated below,
the petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Third Circuit Court
of Michigan-Criminal Division for the County of Wayne. This Court recites
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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). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Officers Gray and his partner, Charon Johnson, responded to a
run involving a person described as wearing an orange shirt and
brown pants, pointing a black handgun with a brown handle at two
young girls. After the officers saw defendant, who matched the
description, across the street sitting on a porch, they removed
defendant from the porch and patted him down on the front lawn
of the house. The officers also detained and patted down Michael
Glenn, who had emerged from inside the house after defendant
was detained. Neither man had a weapon on his person. Officer
Gray then went up onto the porch of the house, and could clearly
see through the open front door. He saw a black handgun with a
wooden handle sitting on a table in the front room, two shotguns
leaning against a chair, and three spent shotgun shells all within
five feet of the front door.
People v. Harris, No. 308191, 2013 WL 951248, at *1 (Mich. Ct. App.
Feb. 21, 2013).
Petitioner’s conviction was affirmed on appeal. People v. Harris, 2013
WL 951248; lv. den. 832 N.W.2d 220 (Mich. 2013).
Petitioner filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People v.
Harris, No. 10-006497-01-FH, (Third Circuit Court-Criminal Division, March
18, 2014). Petitioner did not appeal the court’s decision.
In his petition, petitioner seeks a writ of habeas corpus on the following
grounds: (1) the search of the house and seizure of the firearms were
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violations of the Defendant’s rights under the United States and Michigan
Constitutions, (2) the giving of the Miranda rights was not effective, the waiver
was not given knowingly and intelligently and the statement should have been
suppressed under the United States and Michigan Constitutions, and (3) the
use of a conviction of a felon in possession of a firearm as a predicate to
felony firearm is a violation of a defendant’s rights against double jeopardy
under the United States and Michigan Constitutions.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review
for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
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A decision of a state court is “contrary to” clearly established federal law
if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision unreasonably applies the law
of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal
habeas court may not “issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id. at 410-11. “[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)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show that
the state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A
habeas petitioner should be denied relief as long as it is within the “realm of
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possibility” that fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Discussion
A. Claim # 1.
cognizable.
Petitioner’s Fourth Amendment claim is non-
Petitioner claims that the trial judge erred in denying his motion to
suppress the shotguns obtained from his home, claiming that the seizure was
not reasonable and necessary to ensure the safety of law enforcement
personnel or citizens.
A federal habeas review of a petitioner’s arrest or search by state police
is barred where the state has provided a full and fair opportunity to litigate an
illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465,
494-95 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For
such an opportunity to have existed, the state must have provided, in the
abstract, a mechanism by which the petitioner could raise the claim, and
presentation of the claim must not have been frustrated by a failure of that
mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). The relevant
inquiry is whether a habeas petitioner had an opportunity to litigate his claims,
not whether he in fact did so or even whether the Fourth Amendment claim
was correctly decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D.
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Mich. 2003); rev’d on other grds 606 F.3d 867 (6th Cir. 2010). Under Stone,
the correctness of a state court’s conclusions regarding a Fourth Amendment
claim “is simply irrelevant.” See Brown v. Berghuis, 638 F. Supp, 2d 795, 812
(E.D. Mich. 2009).
“The courts that have considered the matter ‘have
consistently held that an erroneous determination of a habeas petitioner’s
Fourth Amendment claim does not overcome the Stone v. Powell bar.’” Id.
(quoting Gilmore v. Marks, 799 F.2d 51, 57 (3rd Cir. 1986)). Thus, an
argument by a habeas petitioner that is “directed solely at the correctness of
the state court decision [on a Fourth Amendment claim] ‘goes not to the
fullness and fairness of his opportunity to litigate the claim[s], but to the
correctness of the state court resolution, an issue which Stone v. Powell
makes irrelevant.’” Brown, 638 F. Supp. 2d at 812-13 (quoting Siripongs v.
Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994)).
Petitioner was able to present his Fourth Amendment claim to the state
trial court in his pre-trial motion to suppress. Petitioner was later able to
present his Fourth Amendment claim to the Michigan appellate courts. That
is sufficient to preclude review of the claim on habeas review. Good v.
Berghuis, 729 F.3d 636,640 (6th Cir. 2013).
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B. Claim # 2. The Miranda Rights claim.
Petitioner next contends that he was denied his Miranda rights when he
was interviewed by investigator Boyle the next day following his arrest and
that his statement should have been suppressed.
In considering federal habeas petitions, a federal district court must
presume the correctness of state court factual determinations, and a habeas
petitioner may rebut this presumption only with clear and convincing evidence.
Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001); Jones v. Smith, 244 F.
Supp. 2d 801, 808 (E.D. Mich. 2003); 28 U.S.C. § 2254(e)(1).
The
presumption of correctness also “applies to implicit findings of fact, logically
deduced because of the trial court’s ability to adjudge the witnesses’
demeanor and credibility.” Carey v. Myers, 74 F.App’x. 445, 448 (6th Cir.
2003)(citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996)).
Subsidiary factual questions in determining the voluntariness of a statement
to police, such as whether the police engaged in intimidation tactics alleged
by a habeas petitioner, are entitled to the presumption of correctness
accorded to state court findings of fact. Miller v. Fenton, 474 U.S. 104, 112
(1985). Likewise, whether a defendant understood his or her Miranda rights
is a question of fact underlying the question of whether his waiver of those
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rights was knowing and intelligent. On federal habeas review, a federal court
has to presume that the state court’s factual finding that a defendant fully
understood what was being said and asked of him was correct unless the
petitioner shows otherwise by clear and convincing evidence. Williams v.
Jones, 117 F.App’x. 406, 412 (6th Cir. 2004).
A defendant’s waiver of his Miranda rights is considered valid if it is
voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444,
475 (1966). Coercive police activity is a necessary predicate to finding that
a defendant’s waiver of his Miranda rights was involuntary. Colorado v.
Connelly, 479 U.S. 157, 167, 169-70 (1986). A defendant’s deficient mental
condition, by itself, is insufficient to render a waiver involuntary. Id. at 164-65.
“[W]hile mental condition is surely relevant to an individual’s susceptibility to
police coercion, mere examination of the confessant’s state of mind can never
conclude the due process inquiry.” Connelly, 479 U.S. at 165.
In determining whether a confession is voluntary, the ultimate question
for a court is “whether, under the totality of the circumstances, the challenged
confession was obtained in a manner compatible with the requirements of the
Constitution.” Miller v. Fenton, 474 U.S. at 112. These circumstances include:
1. police coercion (a “crucial element”);
2. the length of interrogation;
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3. the location of interrogation;
4. the continuity of the interrogation;
5. the suspect’s maturity;
6. the suspect’s education;
7. the suspect’s physical condition and mental health;
8. and whether the suspect was advised of his or her Miranda Rights.
Withrow v. Williams, 507 U.S. 680, 693-94 (1993).
All of the factors involved in the giving of the statement should be
closely scrutinized. Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
However, without coercive police activity, a confession should not be deemed
involuntary. Colorado v. Connelly, 479 U.S. at 167.
Based upon the totality of the circumstances in this case, it was
objectively reasonable for the Michigan Court of Appeals to hold that
petitioner’s confession was voluntary. See McCalvin v. Yukins, 444 F.3d 713,
720 (6th Cir. 2006).
Although petitioner was provided medical treatment the evening before
because of apparent alcohol poisoning, given pain relievers for his head and
stomach aches, and did not have his eyeglasses for reading at the time of the
interview when he placed his initials next to each right waived, petitioner
“acknowledged that he had been arrested before and, from past experience,
knew he would be taken in to speak with a detective. [Petitioner] further
acknowledged it was not the first, second or even third time, he had heard the
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questions related to the waiver of his Miranda rights and that he had heard
those questions ‘several times’ before.” Harris, 2013 WL 951248, at *4.
A defendant’s deficient mental condition, by itself, is insufficient to
render a waiver involuntary. Connelly, 479 U.S. at 164-65. “[W]hile mental
condition is surely relevant to an individual’s susceptibility to police coercion,
mere examination of the confessant’s state of mind can never conclude the
due process inquiry.” Id. In this case, there was no evidence of physical or
psychological coercion on behalf of investigator Boyle. Absent any such
evidence of coercion, the fact that petitioner may have been in ill health at the
time of the police interrogation would not render his confession involuntary.
See U.S. v. Barbour, 70 F.3d 580, 586 (11th Cir. 1995). Furthermore, even
assuming that petitioner did not have his eyeglasses, petitioner is unable to
show that he failed to understand the warnings, or that he attempted to invoke
his rights in any way. See Garcia v. Stephens, 793 F.3d 513, 522 (5th Cir.
2015), cert. denied, 136 S. Ct. 897 (2016), reh’g denied, 136 S. Ct. 1000
(2016).
Petitioner claims that his statement should have been suppressed
because he did not understand his Miranda warnings; however, petitioner’s
prior experiences of being taken to speak with a detective on numerous
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occasions in which he heard Miranda warnings would indicate that he
understood his Miranda rights, thereby supporting the factual findings of both
the trial court and the Michigan Court of Appeals that petitioner knowingly and
voluntarily waived his Miranda rights.
Petitioner is not entitled to habeas relief, because he has failed to offer
any evidence, clear and convincing or otherwise, to rebut the findings by the
Michigan courts that he understood the Miranda rights that were read to him,
so as to entitle him to habeas relief. Williams, 117 F.App’x. at 412.
Under the deference required by the AEDPA, and given the factors
supporting a finding that petitioner’s confession was voluntary, the decision
of the Michigan Court of Appeals in finding petitioner’s confession to have
been voluntary was a reasonable application of federal law. See McCalvin,
444 F.3d at 720. Petitioner is not entitled to habeas relief on his second
claim.
C. Claim # 3. The double jeopardy claim.
Petitioner claims that his convictions for felon in possession of a firearm
and felony-firearm violate the Double Jeopardy Clause because both
convictions involve the same weapon.
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The Double Jeopardy Clause serves the function of preventing both
successive punishments and successive prosecutions. United States v.
Ursery, 518 U.S. 267, 273 (1996).
The protection against multiple
punishments prohibits the government from “punishing twice or attempting a
second time to punish criminally for the same offense.” Witte v. United States,
515 U.S. 389, 396 (1995)(quoting Helvering v. Mitchell, 303 U.S. 391, 399
(1938)). Although the Double Jeopardy Clause protects a defendant against
cumulative punishments for convictions on the same offense, the clause does
not prohibit the state from prosecuting a defendant for such multiple offenses
in a single prosecution. See Ohio v. Johnson, 467 U.S. 493, 500 (1984).
Moreover, whether punishments are multiple, so as to violate the Double
Jeopardy Clause, is essentially a question of legislative intent. Id. at 499.
When multiple convictions are secured at a single trial, the test for
determining whether two offenses are sufficiently distinguishable to permit the
imposition of cumulative punishment is that set forth in Blockburger v. United
States, 284 U.S. 299, 304 (1932). Brown v. Ohio, 432 U.S. 161, 166 (1977).
As the Supreme Court explained that test in Brown:
“The applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of an additional fact
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which the other does notAAAA” This test emphasizes the elements of
the two crimes. “If each requires proof of a fact that the other
does not, the Blockburger test is satisfied, notwithstanding a
substantial overlap in the proof offered to establish the crimesAAAA”
Id. at 166 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975).
“The Court focuses on the statutory elements of the two crimes with
which a defendant has been charged, not on the proof that is offered or relied
upon to secure a conviction.... If each [offense] requires proof of a fact that the
other does not, the Blockburger test is satisfied, notwithstanding a substantial
overlap in the proof offered to establish the crimes.” United States v. Barrett,
933 F.2d 355, 360-61 (6th Cir. 1991)(internal citations and quotes omitted).
Thus, the Double Jeopardy Clause is not violated merely because the same
evidence is used to establish more than one statutory violation. See United
States v. Dixon, 509 U.S. 688, 696 (1993).
In deciding a habeas petitioner’s Double Jeopardy claim, a federal
habeas court is bound by a state appellate court’s interpretation of different
state statutes to permit a defendant who is convicted of multiple offenses to
be punished for both offenses. See Palmer v. Haviland, 273 F.App’x. 480,
486-87 (6th Cir. 2008). Once a state court has determined that the state
legislature intended cumulative punishments for separate offenses, a federal
habeas court must defer to that determination. See Banner v. Davis, 886 F.2d
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777, 780 (6th Cir. 1989). The Michigan Court of Appeals determined that the
Michigan Legislature intended cumulative punishment for the offenses of felon
in possession of a firearm and felony-firearm. Harris, 2013 WL 951248, at *5.
This Court sitting on federal habeas review is bound by that determination.
Banner, 886 F.2d at 780. Because this determination is binding in federal
habeas corpus, petitioner’s claim that his convictions for both possession of
a firearm by a felon and possession of a firearm during the commission of a
felony violate the Double Jeopardy Clause must be rejected. See Rodgers v.
Bock, 49 F.App’x. 596, 597 (6th Cir. 2002). The Michigan Court of Appeals
clearly held that multiple punishments for the two crimes are permissible
under Michigan law. The state trial court did not violate petitioner’s federal
right against double jeopardy. Palmer, 273 F.App’x. at 487. Petitioner is not
entitled to relief on his third claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
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whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims to be
debatable or wrong. Id. at 484. “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.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159 F.
Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner
leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ
of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
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IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: November 30, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 30, 2016, by electronic and/or ordinary mail and
also on Luther Harris #190562, St. Louis Correctional Facility,
8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk
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