Rivers v. Gidley

Filing 12

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GREGORY RIVERS,
Petitioner,

Case No. 2:14-CV-13392

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

LORI GIDLEY,
Respondent.
/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
I. INTRODUCTION
Michigan prisoner Gregory Rivers (“Petitioner”) has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. §2254 asserting that he is being
held in violation of his constitutional rights. In 2011, Petitioner was convicted of
carjacking, MICH. COMP. LAWS § 750.529a, first-degree home invasion, MICH.
COMP. LAWS § 750.110a(2), unlawful imprisonment, MICH. COMP. LAWS §
750.349(1)(b); unarmed robbery, MICH. COMP. LAWS § 750.530, and unlawfully
taking possession of and driving away with an automobile, MICH. COMP. LAWS §
750.413, following a bench trial in the Wayne County Circuit Court. In 2012, he
was sentenced to thirty to sixty years imprisonment on the carjacking conviction,
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five to twenty years imprisonment on the home invasion conviction, four to fifteen
years imprisonment on the unlawful imprisonment and unarmed robbery
convictions, and two to five years imprisonment on the taking possession and
driving away conviction. The sentences are to run concurrently, with the exception
of the home invasion sentence, which is consecutive to the other sentences.
Petitioner raises claims concerning the pre-trial identification procedure, the
impartiality of the trial judge, and the sufficiency of the evidence for his carjacking
conviction. For the reasons stated, the Court denies the petition. The Court also
denies a certificate of appealability and denies leave to proceed in forma pauperis
on appeal.
II. FACTS AND PROCEDURAL HISTORY
Petitioner’s convictions arise from an incident in which he broke into a
woman’s apartment, tied her up, took her wallet, laptop, cell phone, watch,
jewelry, and car keys, and then drove away in her car. When police pulled him
over a short time later, he attempted to flee but crashed and flipped the car.
Petitioner was found in the car along with the personal items and arrested. He fit
the victim’s general description and was later identified by the victim upon the
showing of a photo and at the preliminary examination and trial.
Following his convictions and sentencing, Petitioner did not pursue a direct
appeal in the state courts. With the assistance of appointed counsel, he instead filed
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a motion for relief from judgment with the state trial court raising the three claims
contained in his habeas petition. The trial court denied relief pursuant to Michigan
Court Rule 6.508(D)(3), finding that Petitioner failed to establish good cause for
not raising his claims in a direct appeal and that, because the claims lacked merit,
he failed to establish prejudice. People v. Rivers, No. 11-009553-01 (Wayne Co.
Cir. Ct. May 31, 2013). Petitioner then filed an application for leave to appeal with
the Michigan Court of Appeals, which was denied “for failure to meet the burden
of establishing entitlement to relief under MCR 6.508(D).” People v. Rivers, No.
316637 (Mich. Ct. App. Oct. 29, 2013) (unpublished). Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which was
similarly denied. People v. Rivers, 845 N.W.2d 112 (2014).
Petitioner thereafter filed his federal habeas petition raising the following
claims:
I.

The trial court violated his due process rights by refusing to
suppress the victim’s identification which resulted from an
unduly suggestive single photo show-up.

II.

His due process right to a fair trial before an impartial judge
was violated when the trial judge improperly questioned the
victim in a manner which assumed the truth of her allegations.

III.

The prosecution submitted insufficient evidence to sustain his
carjacking conviction.

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Dkt. No. 1 at 3 (Pg. ID No. 3). Respondent has filed an answer to the petition
contending that it should be denied because the claims are barred by procedural
default and/or lack merit. Petitioner has filed a reply to that answer.
III.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified in 28 U.S.C. § 2241 et seq., provides the standard of review for federal
habeas cases brought by state prisoners. The AEDPA provides:
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.
28 U.S.C. §2254(d) (1996).
“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
[that] precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam)
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(quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002). “In order for a federal court to find a state court’s
application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision
. . . must have been ‘objectively unreasonable,’ ” not merely incorrect or
erroneous. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). The “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’ ” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7
(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fair-minded 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)). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)). Thus, in order to obtain federal habeas relief, a state prisoner
must show that the state court’s rejection of a claim “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fair-minded disagreement.” Id. at 103; see also
White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Federal judges “are required to
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afford state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.” Woods v. Donald, 135 S.
Ct. 1372, 1376 (2015).
Section 2254(d)(1) limits a federal court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (noting that the Supreme Court “has held on numerous occasions that it is
not ‘an unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely established
by this Court”); Lockyer, 538 U.S. at 71–72. Additionally, § 2254(d) also “does
not require a state court to give reasons before its decision can be deemed to have
been ‘adjudicated on the merits.’ ” Harrington, 562 U.S. at 100. Furthermore, it
“does not require citation of [Supreme Court] cases–indeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S.
3, 8 (2002).
Circuit Court precedent cannot provide the basis for habeas relief under the
ADEA. Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam); see also
Lopez v. Smith, S. Ct. 1, 2 (2014) (per curiam). The decisions of lower federal
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courts, however, may be useful in assessing the reasonableness of a state court’s
decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d
354, 359 (E.D. Mich. 2002)).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th
Cir. 1998). Moreover, federal habeas review is “limited to the record that was
before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV. DISCUSSION
Petitioner asserts that he is entitled to relief because the police used an
unduly suggestive pre-trial identification procedure, the trial judge was biased
against him, and the prosecution did not present sufficient evidence to support his
carjacking conviction. Respondent contends that Petitioner’s claims are barred by
procedural default because he first raised them on collateral review in the state
courts, he was denied relief under Michigan Court Rule 6.508(D)(3), and he has
not shown either cause and prejudice, or that a fundamental miscarriage of justice
has occurred. Respondent also contends that the claims lack merit.
A. Procedural Default
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Federal habeas relief is precluded on claims that a petitioner has not
presented to the state courts in accordance with the state’s procedural rules.
Wainwright v. Sykes, 433 U.S. 72, 85–87 (1977). The doctrine of procedural
default is applicable when a petitioner fails to comply with a state procedural rule,
the rule is actually relied upon by the state courts, and the procedural rule is
“independent and adequate.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006);
see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). The last
explained state court judgment should be used to make this determination. Ylst v.
Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or
unexplained denial, it is presumed that the last reviewing court relied upon the last
reasoned opinion. Id.
Petitioner first presented his habeas claims to the state courts in his motion
for relief from judgment on collateral review. The Michigan Supreme Court
denied relief pursuant to Michigan Court Rule 6.508(D), which provides, in part,
that a court may not grant relief to a defendant if the motion for relief from
judgment alleges grounds for relief which could have been raised on direct appeal,
absent a showing of good cause for the failure to raise such grounds previously
and actual prejudice resulting therefrom. See MICH. CT. R. 6.508(D)(3). The
United States Court of Appeals for the Sixth Circuit has held that the form order
used by the Michigan Supreme Court to deny leave to appeal in this case is
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unexplained because its citation to Michigan Court Rule 6.508(D) is ambiguous as
to whether it refers to a procedural default or a rejection on the merits. See
Guilmette v. Howes, 624 F.3d 286, 291–92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must “look through” the unexplained
order of the Michigan Supreme Court to the state trial court’s decision to
determine the basis for the denial of state post-conviction relief. Id.
In this case, the state trial court denied relief on procedural grounds by
finding that the claims lacked merit and ruling that Petitioner had not shown cause
and prejudice under Michigan Court Rule 6.508(D)(3) for his failure to raise the
claims on direct appeal of his convictions. The state courts thus clearly relied upon
a procedural default to deny Petitioner relief on his claims. His claims are thus
procedurally defaulted.
A state prisoner who fails to comply with a state’s procedural rules waives
the right to federal habeas review absent a showing of cause for noncompliance
and actual prejudice resulting from the alleged constitutional violation, or a
showing of a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 750–51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v.
Mills, 87 F.3d 779, 784–85 (6th Cir. 1996).
In reply to Respondent’s answer, Petitioner argues that he has cause to
excuse his procedural default of not pursuing a direct appeal of his convictions in
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state courts. With regard to pursuing an appeal of right, he asserts that he
attempted to request appellate counsel and file such an appeal, but the court did
not receive his appeal of right form on time. With regard to pursuing leave to
appeal, he asserts that the court reporter did not timely inform him and appointed
appellate counsel that a requested trial transcript did not exist and that appellate
counsel ran out of time to file an application for leave to appeal and instead filed a
motion for relief from judgment.
Petitioner, however, fails to establish sufficient cause to excuse his
procedural default. First, while he asserts that he attempted to file an appeal of
right in a timely fashion, he offers no documents, such as prison or postal records,
which reflect a timely mailing. His notice of appeal rights form is stamped
received on May 3, 2012 – well after the 42-day time limit for requesting
appointed appellate counsel and filing an appeal of right. See MICH. CT. R.
7.204(A)(2). Moreover, Petitioner only signed and dated the acknowledgment of
rights portion of that form is signed and dated by Petitioner (on February 3, 2012).
The appointment of counsel request portion of the form is unsigned and undated.
It thus appears Petitioner lost his appeal of right through his own error or neglect.
Second, even after losing his appeal of right, Petitioner had the opportunity
to pursue a direct appeal of his convictions by filing an application for leave to
appeal within six months of sentencing, but failed to do so. See MICH. CT. R.
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7.205(G). He asserts that this delay was due to tardiness in obtaining transcripts
and the court reporter not timely informing him and appellate counsel that there
was no transcript for December 12, 2011. The state court record, however, reflects
that Petitioner was appointed appellate counsel on June 18, 2012 and that trial and
sentencing transcripts were ordered that day. The trial and sentencing transcripts
were filed on June 19, 2012 and/or July 19, 2012 and the court reporter certified
that there was no record to transcribe for December 12, 2011 on July 16, 2012.
These events occurred within the six-month time frame for seeking leave to
appeal. Thus, any delay by the court reporter did not prevent the timely filing of
an application for leave to appeal. Moreover, Petitioner could have filed an
application for leave to appeal within the six-month period and submitted any
required transcripts when they became available. See MICH. CT. R. 7.205(B).
Petitioner also seems to assert that appellate counsel was ineffective for
failing to file an application for leave to appeal (and instead filing a motion for
relief from judgment) as cause to excuse his procedural default. Petitioner,
however, did not raise the issue of ineffective assistance of appellate counsel in
his motion for relief from judgment or related appeals in the state courts. Because
he has not properly exhausted the ineffective assistance of appellate counsel issue
in the state courts, he has effectively waived that issue and it may not serve as
cause to excuse his procedural default here. See Edwards v. Carpenter, 529 U.S.
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446, 453 (2000); Jacobs v. Mohr, 265 F.3d 407, 417–18 (6th Cir. 2001). Petitioner
thus fails to establish cause to excuse his procedural default.
B. Evidence
The Court need not address the issue of prejudice when a petitioner fails to
establish cause to excuse a procedural default. Smith v. Murray, 477 U.S. 527, 533
(1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983). Nonetheless, even
assuming that Petitioner establishes cause to excuse his default, he cannot
establish prejudice because his claims lack merit for the reasons stated by the trial
court in denying relief from judgment and as discussed by Respondent in the
answer to the petition.
Briefly stated, Petitioner’s suggestive identification procedure claim lacks
merit because the victim’s trial identification was sufficiently reliable. See United
States v. Wade, 388 U.S. 218, 241 (1967); United States v. Crozier, 259 F.3d 503,
510 (6th Cir. 2001) (citing Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir.
1994)). Furthermore, any such error was harmless given that the police captured
Petitioner shortly after the incident while he was driving the victim’s car and was
in possession of her stolen items. See Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (holding that a constitutional error implicating trial procedures is
considered harmless on habeas review if it did not have a “substantial and
injurious effect or influence in determining the jury’s verdict”); Ruelas v.
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Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is “always the
test” in the Sixth Circuit).
Petitioner’s judicial bias claim lacks merit because the record indicates that
the trial judge merely asked the victim clarifying questions during the bench trial
and there is no indication that the judge pierced the veil of impartiality or was
otherwise biased against Petitioner. See Bracy v. Gramley, 520 U.S. 899, 904–05
(1997) (due process requires a trial before a judge with no actual bias against the
defendant or an interest in the outcome); Liteky v. United States, 510 U.S. 540,
555–56 (1994); Johnson v. Bagley, 544 F.3d 592, 597 (6th Cir. 2008) (a
constitutional violation occurs only when a judge’s conduct shows “a
predisposition so extreme as to display clear inability to render fair judgment”);
United States v. Joseph, 781 F.2d 549, 552 (6th Cir. 1986) (bench trial judge is
presumed to consider only relevant and admissible evidence in reaching a
decision).
Petitioner’s insufficient evidence claim lacks merit because the prosecution
presented sufficient evidence, namely the victim’s testimony, to support his
carjacking conviction. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding
that the question on a sufficiency of the evidence claim is “whether, 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
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doubt.”); Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (a victim’s
testimony alone can be sufficient to sustain a conviction). Moreover, a state
court’s interpretation of state law “binds a federal court sitting on habeas review.”
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Mullaney v. Wilbur, 421
U.S. 684, 691 (1975) (state courts are the final arbiters of state law); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Lastly, Petitioner fails to demonstrate that a fundamental miscarriage of
justice has occurred. The miscarriage of justice exception requires a showing that
a constitutional violation probably resulted in the conviction of one who is
actually innocent. Murray v. Carrier, 477 U.S. 478, 496 (1986). To be credible,
such a claim of actual innocence requires a petitioner to support the allegations of
constitutional error with new reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995). Additionally, actual innocence means
factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S.
614, 623 (1998). Petitioner makes no such showing. His claims are thus barred by
procedural default, otherwise lack merit, and do not warrant federal habeas relief.
V. CONCLUSION
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on his claims and the petition must be denied. Accordingly,

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the Court DENIES and DISMISSES WITH PREJUDICE the petition for a writ
of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. 28 U.S.C. § 2253(c)(1)(A); FED. R. APP. P. 22(b). A
certificate of appealability may issue only if a habeas petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a court denies habeas relief 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. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). When a court denies
relief on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown that jurists of reason would find it
debatable whether the petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find it debatable whether the
court was correct in its procedural ruling. Id. Having considered the matter, the
Court concludes that Petitioner fails to make a substantial showing of the denial of
a constitutional right and jurists of reason would not find the Court’s procedural
ruling debatable. Accordingly, the Court DENIES a certificate of appealability.
The Court also DENIES leave to proceed in forma pauperis on appeal as an
appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
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This matter came before the Court on a (pro se) habeas corpus petition under
28 U.S.C. § 2254. For the reasons given in the Opinion and Order issued on this
date,
IT IS ORDERED that the Habeas Corpus Petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
Dated at Detroit, Michigan, this 28th, day of JUNE, 2016.

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATE DISTRICT JUDGE
DAVID J. WEAVER
CLERK OF THE COURT
BY: T. Bankston
DEPUTY CLERK

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