Johnson v. Rivard

Filing 21

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRANCE DEVAL JOHNSON,
Petitioner,
Case No. 14-14319
v.

HON. AVERN COHN

JEFFREY WOODS,
Respondent.
________________________________/

MEMORANDUM AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Terrance Johnson, (“Petitioner”),
pled guilty in state court to first-degree home invasion and aggravated stalking. He was
sentenced to a five-year term of probation. Petitioner later violated the terms of his
probation and received a 15-to-30 year sentence. Petitioner challenges his probation
revocation proceeding on three grounds: (1) the revocation charges were based on
false information, (2) he was denied the effective assistance of counsel at the
revocation hearing, and (3) he was denied the effective assistance of counsel on
appeal. For the reasons that follow, the petition will be denied for lack of merit.
II. Background
In 2009, Petitioner pleaded guilty as a fourth-time habitual felony offender to firstdegree home invasion and aggravated stalking in Saginaw Circuit Court. The charges

stemmed from allegations that he assaulted his former girlfriend. As noted above,
Petitioner was sentenced to a five-year term of probation.
In 2012, Petitioner was charged with violating the terms of his probation. A
probation violation hearing was held on August 16, 2012. A woman testified at the
hearing that she had dated Petitioner for a couple of months in 2011. She described
how after the relationship ended, Petitioner threatened her and another ex-boyfriend
with a gun, showed up at her house uninvited, and threatened her at work. The woman
testified that finally, on May 31, 2012, Petitioner raped her at her house. Petitioner
initially took the stand, but after he was informed about his right against selfincrimination, he elected not to testify.
The trial court found Petitioner violated the terms of his probation:
The Court . . . finds that the People met their burden, by a preponderance
of he evidence, that Defendant violated his terms of probation. Defendant
was specifically required not to violate any criminal law of any unit of
government and he was also not [to] engage in any assaultive, abusive,
threatening or intimidating behavior. The Court finds that from the
testimony placed on the record by [the victim], the Defendant has violated
his terms of probation.
People v. Johnson, No. 09-032688, Order, Saginaw County Cir. Ct., at *3 (Oct. 1,
2012).
The trial court sentenced Petitioner to 15-to-30 years on his 2009 conviction.
Petitioner was never separately charged with the conduct that formed the basis for the
probation violation charge.
Petitioner was appointed appellate counsel who filed an application for leave to
appeal in the Michigan Court of Appeals, raising essentially what now form his first two
habeas claims. Petitioner also filed a supplemental pro se brief, raising additional
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claims. The Michigan Court of Appeals denied the application for leave to appeal for
“lack of merit in the grounds presented.” People v. Johnson, No. 315577 (Mich. Ct. App.
Nov. 14, 2013). Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, raising the same two claims raised by his counsel along with a claim
that he received ineffective assistance of appellate counsel. The Michigan Supreme
Court denied the application by form order. People v. Johnson, 409 Mich. 994 (2014)
(Table).
III. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the
merits by the state courts. Relief is bared under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law.
“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
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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 beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation
omitted).
IV. Analysis
A. Notice of Probation Violation Charges
Petitioner first claims that the probation violation charges were based on
falsehoods. He says that the charging document falsely stated he was arrested and
charged with criminal sexual conduct and sending threatening text messages to the
victim.
Under clearly established Supreme Court law, while probation revocation
involves a loss of liberty, “[p]robation revocation, like parole revocation, is not a stage of
a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). As a result, a
probationer facing revocation is only subject to the minimum requirements of due
process as provided to a parolee facing revocation under Morrissey v. Brewer, 408 U.S.
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471, 786 (1972). This right includes, among other things, written notice of the claimed
violations of probation. Morrissey, 408 U.S. at 489. “The due process clause of the
Fourteenth Amendment mandates that whatever charging method the state employs
must give the criminal defendant fair notice of the charges against him to permit
adequate preparation of his defense.” Olsen v. McFaul, 843 F. 2d 918, 930 (6th Cir.
1988).
Petitioner correctly states that the charging document incorrectly alleged that he
had been arrested and charged with criminal sexual conduct when he had not. This
inaccuracy did not violate Petitioner’s right to notice of the charges, however. The
charging document alleged that Petitioner violated two conditions of his probation: (1)
not to violate any criminal law of any unit of government, and (2) not to engage in any
assaultive, abusive, or intimidating behavior. See Probation Violation Report, dated
10/16/2012. The report then incorrectly stated that charges had been filed, but it also
contained a lengthy narrative summary detailing the victim’s allegations regarding the
May 31, 2012, sexual assault. The victim’s testimony at the subsequent hearing largely
tracked the narrative summary.
Despite the inaccuracy regarding Petitioner’s arrest and charges, the narrative
summary and other information contained in the probation violation report provided
adequate notice to Petitioner of the nature of the accusations against him so as to allow
him an adequate opportunity to prepare a defense. Petitioner’s claim was reasonably
rejected by the state courts. He is therefore not entitled to habeas relief on this ground
merit.

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B. Ineffective Assistance of Trial Counsel
Petitioner next says that counsel at the probation violation hearing was
ineffective for failing to investigate and prepare any meaningful defense to the charges.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, Petitioner must satisfy a two prong test. First, Petitioner must
demonstrate that, considering all of the circumstances, counsel's performance was so
deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, Petitioner
must overcome a strong presumption that counsel's behavior lies within the wide range
of reasonable professional assistance. Id. In other words, Petitioner must overcome the
presumption that, under the circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689. Second, Petitioner must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, Petitioner must
show that “there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The
Supreme Court’s holding in Strickland places the burden on the defendant who raises a
claim of ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but for counsel's
allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). The
Strickland standard applies as well to claims of ineffective assistance of appellate
counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
Here, Petitioner has failed to demonstrate either prong of the Strickland test. In
Michigan, the prosecutor’s burden of proof in a probation revocation proceeding only
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requires that he show that the defendant violated the terms of his probation by a
preponderance of the evidence. M.C.R. 6.445(E)(1). Furthermore, the rules of
evidence, other than those concerning privileges, do not apply. People v. Ison, 132
Mich. App. 61 (1984). There is nothing in the record to suggest that counsel was
unprepared for the hearing or rendered deficient performance. To the contrary, counsel
adequately cross examined the complainant and performed effectively in light of the
standard of review and the evidence presented against Petitioner by the victim.
Petitioner, however, says that if counsel had conducted an adequate
investigation, he would have discovered that no criminal charges were ever filed. This
argument lacks merit because the record shows that counsel made this point at the
beginning of the hearing.
Petitioner also asserts that counsel erroneously advised him against testifying in
his own defense. Petitioner, however, has not shown that his testimony would have,
with reasonable probability, altered the trial court’s decision that the preponderance of
the evidence showed that he violated the conditions of his probation. Moreover,
counsel was not deficient in advising Petitioner against testifying at the hearing. This is
so because anything Petitioner said may have prompted new charges to be filed and his
testimony could be used against him in any resulting criminal proceeding.
C. Ineffective Assistance of Appellate Counsel
Petitioner finally claims that his appellate counsel was ineffective for failing to
adequately brief Petitioner’s lead two issues and failed to adequately assist him in filing
a supplemental pro se brief. The Strickland standard applies as well to claims of
ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617
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(6th Cir. 2005).
Petitioner cannot prevail on this claim. As explained above, Petitioner’s first two
claims are without merit. Appellate counsel cannot be deemed deficient for failing to
assert these claims. Furthermore, any failure by appellate counsel to submit a pro se
brief on behalf of Petitioner does not present a constitutional question because there is
no constitutional right to submit a pro se brief on direct appeal when a defendant is
represented by counsel on appeal. S ee McMeans v. Brigano, 228 F. 3d 674, 684 (6th
Cir. 2000).
VI. Conclusion
Accordingly, petition 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
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2).1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: February 5, 2016
Detroit, Michigan

1

“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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