Berry v. Woods

Filing 11

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 Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENZEL BERRY,
Petitioner,

Civil No. 2:16-CV-10087
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

v.
JEFFREY WOODS,
Respondent,
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Denzel Berry, (“Petitioner”), presently confined at the Baraga Maximum Correctional
Facility in Baraga, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his conviction for first-degree criminal sexual
conduct, M.C.L.A. 750.520b(1)(c); first-degree home invasion, M.C.L.A. 750.110a(2);
unarmed robbery, M.C.L.A. 750.530; assault with intent to do great bodily harm, M.C.L.A.
750.84; and assault with intent to commit criminal sexual penetration, M.C.L.A.
750.520g(1). For the reasons that follow, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Genesee County Circuit Court.
This Court recites 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):
The underlying facts of this case involve the rape of an elderly woman. After
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the crime occurred, the police were contacted and the victim was transported
to the hospital. A rape kit was performed, which included obtaining oral,
anal, and vaginal swabs from the victim. The kit was eventually delivered to
the Lansing state police crime lab for processing. Defendant’s claim of error
arises from use of the DNA obtained from the rape kit to identify defendant
through the CODIS [Combined DNA Indexing System] database.
Nicole Graham, a forensic scientist at the Lansing state police lab and
CODIS administrator, testified at trial. Graham explained that CODIS is a
nationwide pool of DNA profiles. When Graham receives a sample from a
case, such as the one obtained in this case from the rape kit, an evidence
profile is created for the sample (a casework sample), and searched against
the pool of already existing evidence profiles, which come primarily from
convicted offenders and arrestees. Graham handled all of the CODIS “hits”
for the Lansing lab; a hit means that two profiles are found to match each
other. Graham testified that each time a match was made in CODIS, she
would be notified by the computer that a certain casework sample matched
an offender’s profile. CODIS samples are searched every Monday, and
Graham receives a list of matches. Graham then contacts the CODIS unit
to confirm the match. The CODIS unit would pull the DNA sample that was
originally identified, enter it again into CODIS, and rerun it to make sure they
got the same result.
On April 4, 2013, Graham received notification that the vaginal swab sample
she submitted for the victim got a “hit” for defendant, whose DNA sample was
already in the CODIS database. She then contacted the CODIS unit to
confirm the match, and received notification formally from the unit providing
defendant’s identifying information. Graham passed this information on to
Dave VanSingel, the officer in charge of defendant’s case. Graham
requested a new, known sample from defendant for confirmation. She ran
this sample against the casework sample and obtained a match.
People v. Berry, No. 320793, 2015 WL 2214550, at *1 (Mich. Ct. App. May 12,
2015)(internal footnote omitted).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 498 Mich. 921, 871
N.W.2d 193 (2015).
Petitioner seeks a writ of habeas corpus on the following ground:
I. Petitioner was denied his Sixth and Fourteenth Amendment rights to
confrontation and crossexamination and fair trial by hearsay evidence of
confirmation that the CODIS system matched his DNA with DNA taken from
the victim, AK.
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Respondent has filed an answer in opposition to the petition for writ of habeas
corpus, which is construed in part as a motion to dismiss on the basis that the claim is
barred by procedural default. See Alvarez v. Straub, 64 F. Supp. 2d 686, 689 (E.D. Mich.
1999).
II. Discussion
Respondent contends that petitioner’s claim is procedurally defaulted, because
petitioner failed to object to the admission of the hearsay evidence at trial and the Michigan
Court of Appeals relied on this failure to preserve the error in affirming petitioner’s
conviction.
The Michigan Court of Appeals found that petitioner had failed to preserve the
Confrontation Clause error at the trial level. People v. Berry, 2015 WL 2214550, at * 2.
Consequently, the Michigan Court of Appeals reviewed petitioner’s claim solely for plain
error and finding none, affirmed his conviction. Id. at * 2-3.
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged constitutional violation, or can
demonstrate that failure to consider the claim will result in a “fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a petitioner fails to show
cause for his procedural default, it is unnecessary for the court to reach the prejudice issue.
Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a
constitutional error has probably resulted in the conviction of one who is actually innocent,
a federal court may consider the constitutional claims presented even in the absence of a
showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986).
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However, to be credible, such a claim of 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). Actual innocence, which would permit collateral
review of a procedurally defaulted claim, means factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
The Michigan Court of Appeals clearly indicated that by failing to object at trial,
petitioner had not preserved his Confrontation Clause claim. The fact that the Michigan
Court of Appeals engaged in plain error review of petitioner’s claim does not constitute a
waiver of the state procedural default. Seymour v. Walker, 224 F. 3d 542, 557 (6th Cir.
2000). The fact that petitioner is raising a federal constitutional claim does not alter this
Court’s analysis. Indeed, the Sixth Circuit has held that even a state court’s plain error
review of federal constitutional claims, as opposed to mere state law claims, is sufficient
to constitute a procedural default of a such claims. See Girts v. Yanai, 501 F. 3d 743, 755
(6th Cir. 2007). The right to confrontation may be waived, including by a failure to object
to the “offending evidence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3
(2009). Thus, this Court should view the Michigan Court of Appeals’ review of petitioner’s
claim for plain error as enforcement of the procedural default. Hinkle v. Randle, 271 F. 3d
239, 244 (6th Cir. 2001). In addition, the mere fact that the Michigan Court of Appeals also
discussed the merits of petitioner’s claim does not mean that this claim was not
procedurally defaulted. A federal court need not reach the merits of a habeas petition
where the last state court opinion clearly and expressly rested upon procedural default as
an alternative ground, even though it also expressed views on the merits. McBee v.
Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991); Pearl v. Cason, 219 F. Supp. 2d 820, 828
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(E.D. Mich. 2002). Petitioner’s claim is procedurally defaulted.
In the present case, petitioner has offered no reasons for his failure to object to the
admission of hearsay evidence concerning the confirmation of the initial CODIS “hit.”
Because petitioner has not demonstrated any cause for his procedural default, it is
unnecessary for this Court to reach the prejudice issue. Smith v. Murray, 477 U.S. at 533.
Additionally, petitioner has not presented any new reliable evidence to support any
assertion of innocence which would allow this Court to consider his claim as a ground for
a writ of habeas corpus in spite of the procedural default. Because petitioner has not
presented any new reliable evidence that he is innocent of these crimes, petitioner’s claim
is procedurally defaulted. Pearl v. Cason, 219 F. Supp. 2d at 828.
Finally, assuming that petitioner had established cause for his default, he would be
unable to satisfy the prejudice prong of the exception to the procedural default rule,
because his claim would not entitle him to relief. The cause and prejudice exception is
conjunctive, requiring proof of both cause and prejudice. See Matthews v. Ishee, 486 F. 3d
883, 891 (6th Cir. 2007). For the reasons stated by the Michigan Court of Appeals in
rejecting petitioner’s claim on direct appeal and by the Assistant Michigan Attorney General
in her answer to the petition for writ of habeas corpus, petitioner has failed to show that his
procedurally defaulted claim has any merit. In particular, the reasons justifying the denial
of petitioner’s procedurally defaulted claim were “ably articulated by the” Michigan Court
of Appeals in rejecting petitioner’s claim, thus, the issuance of a full written opinion” by this
Court regarding this claim “would be duplicative and serve no useful, jurisprudential
purpose.” See e.g. Bason v. Yukins, 328 Fed. Appx. 323, 324 (6th Cir. 2009).
III. Conclusion
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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 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
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an appeal of the district
court’s order may be taken, if the petitioner shows 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 district court was correct in
its procedural ruling. 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 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.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas
Corpus is DENIED WITH PREJUDICE.
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IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
s/ Nancy G. Edmunds
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: September 12, 2016

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