Arthur v. Haas

Filing 6

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES HENRY ARTHUR,
Petitioner,
Case No. 14-13099
v.
HON. AVERN COHN
RANDALL HAAS,
Respondent.
__________________________________/
MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Charles Henry Arthur,
(Petitioner), is a state inmate sentenced to terms of life in prison for armed robbery,
M.C.L.A. 750.529, assault with intent to murder, M.C.L.A. 750.83, kidnapping, M.C.L.A.
750.349, and carjacking, M.C.L.A. 750.529a; ten to twenty years for extortion, M.C.L.A.
750.213; three to five years for felon in possession of a firearm, M.C.L.A. 750.224f, and
carrying a dangerous weapon with unlawful intent, M.C.L.A. 750.226; and two years for
felony-firearm, M.C.L.A. 750.227b. Petitioner, though counsel, has filed a petition for a
writ of habeas corpus claiming that he was denied his right to self-representation and
denied his right to a fair trial because he was placed in leg shackles during his trial.

Respondent, through the Attorney General’s Office, filed a response contending that
Petitioner’s claims lack merit. For the reasons that follow, the petition will be denied.1
II. Procedural History
Petitioner was originally convicted in 2006, following a jury trial in the Saginaw
County Circuit Court. Petitioner appealed, contending in part that the trial court
improperly denied him the right to represent himself. The Michigan Court of Appeals, 21, affirmed Petitioner’s conviction. The dissenting judge believed that Petitioner
properly invoked his right to self-representation. People v. Arthur, No. 273577, 2008
WL 239627 (Mich. Ct. App. Jan. 29, 2008).
In lieu of granting leave to appeal, the Michigan Supreme Court reversed the
court of appeals’ opinion on the issue of self-representation and remanded the matter to
the trial court for a new trial. People v. Arthur, 481 Mich. 882 (2008).
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Respondent also argues that the Court should decline to review Petitioner’s
claims under the concurrent sentence doctrine because Petitioner is separately serving
three non-parolable life sentences for two first-degree murder convictions and a
conspiracy to commit murder conviction. Respondent also notes that Petitioner’s state
appeals been exhausted in this other case and he has been denied habeas relief by the
undersigned. See Arthur v. McQuiggin, 2:07-CV-13444 (E.D. Mich. Mar. 27, 2014);
appeal dism. No. 14-1432 (6th Cir. Oct. 8, 2014). The concurrent sentence doctrine
allows a federal court to decline to review habeas corpus petitions “which challenge
criminal convictions that have resulted in sentences, and other collateral consequences,
which are wholly subsumed by those conferred by other unassailable convictions.”
Wilson v. Straub, 185 F. Supp. 2d 766, 769 (E.D. Mich. 2002)(internal quotation
omitted). However, a federal district court should exercise its discretion to decline to
review a habeas claim under the concurrent sentence doctrine only in a case where it is
clear that there are no collateral consequences to the petitioner and the issue does not
involve a significant question that merits consideration. Id. “The concurrent sentencing
doctrine is a discretionary one, and courts ‘are admittedly hesitant to apply [it].’” Groves
v. Meko, 516 F. App’x. 507, 508 (6th Cir. 2013)(quoting Dale v. Haeberlin, 878 F.2d
930, 935, n. 3 (6th Cir. 1989)). The Court declines to invoke the concurrent sentence
doctrine in part because Respondent has not made a concerted effort to show that there
are no collateral consequences attaching to Petitioner’s convictions. See Pillette v.
Berghuis, 408 F. App’x 873, 886, n. 8 (6th Cir. 2010).
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On remand, Petitioner moved to represent himself. The trial court granted the
request. Petitioner then requested that his leg shackles2 be removed so he could move
around the courtroom. The trial court denied the request for security reasons. As a
result, Petitioner opted to abandon his right to represent himself and proceeded to a
new trial with appointed counsel. During the retrial, Petitioner’s counsel renewed the
objection to the use of leg shackles several times. The trial court overruled the
objections, again citing security concerns. Petitioner was again found guilty.
Petitioner appealed. The Michigan Court of Appeals, in a split decision, reversed
Petitioner’s conviction, holding that the use of leg shackles rendered Petitioner’s right to
represent himself illusory and amounted to a de factor denial of his right to self
representation. The court of appeals further found that the use of the leg shackles
violated his right to due process. The dissent argued that the record fully supported the
trial court’s decision to use leg shackles. The dissent noted that the trial court had
presided over four separate criminal proceedings against Petitioner, involving 25
charges against Petitioner including two first degree murder charges. The dissent also
noted that the record showed a documented history of Petitioner challenging the
security of the court. People v. Arthur, No. 301762, 2012 WL 2402048 (Mich. Ct. App.
June 26, 2012).
In lieu of granting leave to appeal, the Michigan Supreme Court reversed the
court of appeals and remanded the matter to the trial court for an evidentiary hearing
regarding the decision to keep Petitioner in leg shackles during the trial. The trial court

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It appears that Petitioner was not shackled at his first trial.

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was directed to articulate with particularity the reasons for requiring Petitioner to wear
shackles at trial. The trial court was further ordered to receive evidence and make
findings of fact regarding whether the physical restraints were justified and whether
those restraints were visible to any jurors, either during jury selection or afterward. The
Michigan Supreme Court also retained jurisdiction. People v. Arthur, 493 Mich. 935
(2013).
On remand, the trial court conducted an evidentiary hearing at which it took
testimony from the twelve jurors and the one alternate juror. The trial court then issued
a decision making the following findings of fact:
• All twelve jurors who deliberated to verdict in this matter, and one alternate
juror, testified at the evidentiary hearing held March 13, 2013.
• No juror testified at the hearing held March 13, 2013 that they saw the
Defendant in leg shackle restraints during jury selection.
• No juror testified at the hearing held March 13, 2013 that they saw the
Defendant in leg shackle restraints during trial itself.
• Defendant’s leg shackle restraints were not visible to any juror during jury
selection or trial.
See Doc 5-45, 4/9/13, Findings of Fact and Conclusions of Law, at p. 2.
The trial court further concluded that leg restraints were justified in Petitioner’s
case based on flight concerns as evidenced by Petitioner’s conduct while incarcerated
and the need for security concerns in light of Petitioner’s history of violent acts and
behavior while incarcerated.
On review, the Michigan Supreme Court reinstated Petitioner’s convictions and
sentences. People v. Arthur, 495 Mich. 861 (2013).

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III. Facts
The relevant facts relied upon by the Michigan Court of Appeals’ in its first
opinion are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1). See
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
The victim testified that defendant pulled out a gun and took $130 to $140
dollars from him. Subsequently, defendant ordered the victim to drive into an
alley where, consistent with defendant’s demands, he got out of the car,
stripped to his underwear and socks, and got into the trunk. Defendant then
closed the trunk. While the car was being driven, defendant again asked
about some money, and then shot the victim two to four times. When the car
stopped, defendant opened the trunk and again asked about the money. The
trunk again closed, and defendant drove to another location where he shot the
victim four to five more times while he was lying in a fetal position in the trunk.
People v. Arthur, No. 273577, 2008 WL 239627, at * 1-2.
IV. Standard of Review
28 U.S.C. § 2254(d) 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.
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
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“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 possibility” that fairminded jurists could find the state
court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
V. Petitioner’s Claims
1. Right to Self-Representation/Shackling
Petitioner first claims that he was denied the right to self-representation because
of the trial court’s decision to place him in shackles.

Criminal defendants have a

constitutional right to conduct their own defense at trial, if they voluntarily and intelligently
elect to do so. Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S.
152, 154 (2000); Faretta v. California, 422 U.S. 806, 807 (1975). However, the right to
self-representation is not absolute. Martinez, 528 U.S. at 161. Moreover, a defendant’s
request for self-representation must be made clearly and unequivocally. See Faretta, 422
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U.S. at 835; See also U.S. v. Martin, 25 F.3d 293, 295 (6th Cir. 1994)(“To assert the right
of self-representation, a defendant must do so unequivocally.”). Finally, a defendant’s
invocation of his right of self-representation must be timely made. See e.g. Moore v.
Haviland, 531 F.3d 393, 403 (6th Cir. 2008).
Here, the record reflects that Petitioner’s request to represent himself was not
unequivocal. Petitioner conditioned his request for self-representation as follows:
THE DEFENDANT: I’m just saying, I mean, it’s a constitutional violation for
me to even have shackles on. I’ll just let that issue there stand, and I’ll let
[trial counsel] represent me, sir, and I have nothing else to say.
THE COURT: It isn’t because he can’t move around in the courtroom like
anyone else. So I don’t mischaracterize your position here, because you’re
not going to be able to move around in the courtroom like a regular attorney,
you feel that would prejudice your case and you don’t want to go that way.
You’d rather have an attorney do it and you sit at the counsel table?
THE DEFENDANT: The answer to that is probably yes, in part, because I’m
wearing shackles, your Honor, so yeah. I’m going to step aside and I’ll let
the appellate courts handle whatever, and I’ll let my attorney speak for me
from now on.
(Tr. 9/1/10, pp. 14-15, Doc #34, pg 5-6).
Moreover, the Michigan Supreme Court reviewed Petitioner’s claim and concluded
that Petitioner’s right to self representation was not violated. The court explained:
The trial court did not unconstitutionally “nullify” the defendant's right to
self-representation by declining to remove the defendant's leg shackles. That
the defendant elected to relinquish his right of self-representation rather than
exercise that right while seated behind the defense table does not amount to a
denial of the defendant's right of self-representation. See, e.g., Lefevre v. Cain,
586 F.3d 349 (C.A.5, 2009) (shackling does not violate a defendant's right to
self-representation), cert den 559 U.S. 1016, 130 S.Ct. 1941, 176 L.Ed.2d 381
(2010).
People v. Anderson, 495 Mich. 861, 862.

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This conclusion is neither unreasonable nor contrary to federal law. Petitioner
did not clearly and unequivocally ask to represent himself. Rather, Petitioner agreed to
allow appointed counsel to represent him at his trial and sentencing without making any
subsequent demands to represent himself. “Once a pro se defendant invites or agrees
to any substantial participation by counsel, subsequent appearances by counsel must
be presumed to be with the defendant’s acquiescence, at least until the defendant
expressly and unambiguously renews his request that standby counsel be silenced.”
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Because Petitioner never again
asserted any right to self-representation, he is not entitled to relief on this ground.
Even if Petitioner had not waived his right to self-representation, the fact that he
was shacked during trial does not entitle him to habeas relief. There is no clearly
established Supreme Court precedent to support Petitioner’s contention that he has a
right to represent himself without shackles. There are three approaches followed by
the circuit courts on this issue.3 The Sixth Circuit has not directly addressed the issue
of whether requiring a pro se defendant to wear shackles or restraints violates the right
to self-representation. Circuit precedent, however, does not constitute “clearly

3

The first approach finds that there is no denial of the right to self-representation
when a criminal defendant who wishes to represent himself or herself is shackled or
physically restrained at trial. See Lefevre v. Cain, 586 F.3d 349, 358 (5th Cir. 2009);
United States v. Cooper, 591 F.3d 582, 586-87 (10th Cir. 2010); United States v. Van
Sach, 458 F.3d 694, 699–700 (7th Cir. 2006). A second line of cases either hold or
suggest that there is no violation of a criminal defendant’s right to self-representation as
long as safeguards are present to minimize any prejudice due to the restraints. See
U.S. v Fields, 483 F.3d 313, 357 (5th Cir. 2007); Overton v Mathes, 425 F.3d 518, 52021 (8th Cir. 2005); Frantz v Hazey, 533 F.3d 724, 728 (9th Cir. 2008);United States v.
Jackson, 419 F. App’x. 666, 670 (7th Cir. 2011). One circuit has found that shackles
violated a defendant’s right to self-representation. See Oses v. Massachusetts, 961
F.2d 985, 986 (1st Cir.1992).
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established Federal law, as determined by the Supreme Court” and thus “cannot form
the basis for habeas relief under [the] AEDPA.” Parker v. Matthews, 132 S. Ct. 2148,
2155 (2012). In the absence of clearly established Supreme Court law that would
suggest that a Petitioner is denied his right to self-representation when he is required
to remain shackled while representing themself, Petitioner cannot prevail on his claim
that he was denied the right of self-representation because he was shackled.
2. Due Process/Shackling
Petitioner also claims that he was denied his right to due process by having to
proceed to trial in shackles. The Michigan Supreme Court considered the issue and
held the trial court’s decision to shackle Petitioner was fully supported by the record
and did not amount to a denial of due process, explaining:
. . . the trial court did not violate the defendant's due process rights by
ordering the defendant to wear leg shackles in the first place because the court
was justified in imposing those limited restraints to avoid the risk of flight and to
ensure the safety of those present in light of the defendant's reported escape
attempt and the fact that the defendant required extra police security when he
was transported to court.
While a defendant's right to self-representation encompasses certain
specific core rights, including the right to be heard, to control the organization
and content of his own defense, to make motions, to argue points of law, to
participate in voir dire, to question witnesses, and to address the court and the
jury at times, the right to self-representation is not unfettered. McKaskle v.
Wiggins, 465 U.S. 168, 174, 176–178, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
The defendant, who undeniably possesses physical prowess, posed a physical
danger because of his history of violent acts: he was a convicted double
murderer before the instant case began, serving life without parole for shooting
two victims in the head during a carjacking. The judge had presided over both
the previous trial in this case and the other murder trial, and understandably
formed an impression that the defendant was not only violent, but cunning,
improvisational, and bent on the execution and concealment of his criminal acts.
The court addressed these concerns by placing the defendant in the most
reasonable restrictive restraints available.
The court's decision does not violate Deck v. Missouri, 544 U.S. 622, 125
S.Ct. 2007, 161 L.Ed.2d 953 (2005), where the defendant was shackled with not
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only leg irons, but also handcuffs and a belly chain, all of which were visible to
the jury. The core rule of Deck is that “the Fifth and Fourteenth Amendments
prohibit the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state
interest specific to a particular trial.” Deck, 544 U.S. at 629, 125 S.Ct. at 2007
(emphasis added). That is not the case here as the court sought to shield the
defendant's leg restraints from the jury's view. Further, the record on remand
makes clear that no juror actually saw the defendant in shackles.
694 Mich. at 862. This decision was neither unreasonable nor contrary to established
federal law.
As the Michigan Supreme Court noted, the Constitution prohibits the use of
visible shackles during the guilt or penalty phases of a trial “unless that use is ‘justified
by an essential state interest’—such as the interest in courtroom security—specific to
the defendant on trial.” Deck v. Missouri, 544 U.S. 622, 624 (2005)(quoting Holbrook
v. Flynn, 475 U.S. 560, 568-569 (1986)). Deck’s facts and holding, however,
“concerned only visible restraints at trial.” Mendoza v. Berghuis, 544 F.3d 650, 654 (6th
Cir. 2008). Thus, the Michigan Supreme Court correctly concluded that because the
shackles were not visible, Deck did not apply. This factual finding–that the shackles
were not visible–is presumed correct unless Petitioner can show it is clearly erroneous.
See Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001)(citing Sumner v. Mata, 449
U.S. 539, 546-47 (1981)). Petitioner has not done so.
Indeed, the record shows that there were numerous reasons to support the
decision to use shackles. Petitioner was a physically large man4 with a history of

4

The Michigan Department of Corrections Offender Tracking Information System
(OTIS) lists Petitioner as 6’1 and 295 lbs.
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violent acts.5 By the time of Petitioner’s re-trial, he had already been convicted of a
double murder for the “execution-style” shooting of two other individuals, and
sentenced to life without parole. It was not unreasonable for the trial court to be
concerned with risk of flight or escape. The trial court was aware that Petitioner had
previously planned to escape from the Saginaw County jail (Tr. 4/5/04, Doc. 5-9, p. 2),
and had previously expressed his concern that Petitioner posed a flight risk. (Tr.
4/25/05, Doc. 5-16, pp. 3-4). Petitioner also made threatening remarks regarding the
prosecutor and trial court. (Tr. 7/19/10, Doc. 5-32, pp. 2-5). As the Michigan Supreme
Court found, these facts justified the use of shackles. Petitioner is therefore not
entitled to relief on his claim that his due process rights were violated by the use of
shackles.
VI. Conclusion
For the reasons stated above, the state courts’ rejection of Petitioner’s claims
did not result in decisions that were contrary to Supreme Court precedent, an
unreasonable application of Supreme Court precedent, or an unreasonable
determination of the facts. Accordingly, the petition for a writ of habeas corpus is
DENIED. Furthermore, reasonable jurists would not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to proceed

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Petitioner is serving prison sentences for a number of other crimes, which he
committed just over a month after committing the instant offenses. The other
convictions stem from the December 2002 “execution-style” shooting of 32-year-old
man and 17-year-old girl, for which he was convicted of two counts of first-degree
murder, conspiracy to commit first-degree murder, carjacking, and conspiracy to commit
armed robbery. The Michigan Courts affirmed Petitioner’s convictions and Petitioner
sought, but was denied, habeas relief. See Arthur v. McQuiggin, No. 2:07-CV-13444
(E.D. Mich. March 27, 2014).
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further. The Court therefore DENIES a certificate of appealability under 28 U.S.C. §
2253(c)(2).6 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: October 14, 2016
Detroit, Michigan

6

“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.
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