foster v. WHV Correctional Facility
Filing
8
OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by April M. Foster. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
APRIL FOSTER,
Petitioner,
Case Number: 16-12476
Honorable David M. Lawson
v.
ANTHONY STEWART,
Respondent.
____________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
As a result of physical abuse and neglect, which the state court described as “grievous,”
April Foster’s six-year-old daughter died of pneumonia. Foster was convicted of torture, child
abuse, and first-degree felony murder and sentenced to life in prison without the possibility of
parole. Finding no relief in the state appellate courts, she filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 alleging that her trial should have been severed from her co-defendant’s,
her lawyer was constitutionally ineffective, the prosecutor committed misconduct, and the
cumulative effect of these alleged violations deprived her of a fair trial. Because the state courts
adjudicated Foster’s claims consistently with controlling federal law, and none of them support
issuance of the writ, the Court will deny the petition.
I.
After her daughter, Avril Johnson (AJ), passed away, Foster was tried with a co-defendant,
David Hairston, before a jury in the Wayne County, Michigan circuit court. The Michigan Court
of Appeals summarized the facts in its opinion on direct appeal as follows:
Defendant’s convictions arise from the death of her six-year-old daughter, AJ.
The evidence at trial established that defendant and co-defendant David Hairston
subjected AJ and AJ’s sister, KJ, to grievous physical abuse and neglect. As a
consequence of this abuse and neglect, AJ then died of “bilateral bronchial
pneumonia associated with neglect and abusive injuries.” More specifically, at
trial, a forensic pathologist explained that AJ’s extensive physical injuries and
her history of neglect left her in a weakened physical state which prevented her
body from fighting off the pneumonia. Defendant and Hairston were tried
jointly before one jury, and both were convicted.
People v. Foster, No. 317444, 2015 WL 213123 (Mich. Ct. App. Jan. 15, 2015).
The jury found Foster guilty of first-degree felony murder, Mich. Comp. Laws §
750.316(1)(b), first-degree child abuse, Mich. Comp. Laws § 750.136b(2), third-degree child
abuse, Mich. Comp. Laws § 750.136b(5), and two counts of torture, Mich. Comp Laws §
750.85(1), one count of which involved AJ’s sister, KJ. Hairston was convicted of first-degree
felony murder, first-degree child abuse, and two counts of torture.
The trial court sentenced the petitioner to life in prison without parole for first-degree
felony murder and lesser term-of-year sentences on the other crimes. Foster’s convictions were
affirmed on appeal. People v. Foster, 2015 WL 213123, lv. den. 498 Mich. 855, 864 N.W.2d 578
(2015).
Foster’s petition for a writ of habeas corpus alleges the following grounds for relief:
I.
The petitioner was prejudiced and denied a fair trial by being tried jointly with her
co-defendant.
II.
Ineffective assistance of counsel.
III.
The prosecutor committed misconduct during her closing arguments.
IV.
The cumulative effect of the errors in this case deprived the petitioner of federal
and state due process rights.
Pet. at 5-10, ECF No. 1, PageID.5-10.
The warden filed an answer to the petition raising the defense of procedural default. The
“procedural default” argument is a reference to the rule that the petitioner did not preserve properly
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some of her claims in state court, and the state court’s ruling on that basis is an adequate and
independent ground for the denial of relief. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The
Court finds it unnecessary to address this procedural question. It is not a jurisdictional bar to
review of the merits, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts
are not required to address a procedural-default issue before deciding against the petitioner on the
merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520
U.S. 518, 525 (1997)). This procedural defense will not affect the outcome of this case, and it is
more efficient to proceed directly to the merits.
II.
Certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]”
the standard of review federal courts must apply when considering an application for a writ of
habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel.
See Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court may grant relief only if the state
court’s adjudication “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 if the adjudication “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)(1)-(2).
“Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings,
as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall, 572 U.S. 415, 419
(2014) (quotation marks and citations omitted). “As a condition for obtaining habeas corpus from
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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
v. Richter, 562 U.S. 86, 103, (2011). The distinction between mere error and an objectively
unreasonable application of Supreme Court precedent creates a substantially higher threshold for
obtaining relief than de novo review. Mere error by the state court will not justify issuance of the
writ; rather, the state court’s application of federal law “must have been objectively unreasonable.”
Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (quotation
marks omitted)). The AEDPA 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). Moreover, habeas review is “limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
Even though the state appellate courts reviewed some of Foster’s federal claims on appeal
under a plain error standard, AEDPA’s highly deferential standard for reviewing a habeas
petitioner’s constitutional claims applies here. The petitioner must show that “the state court
decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal
law’ or involved an ‘unreasonable determination of the facts.’” Kelly v. Lazaroff, 846 F.3d 819,
831 (6th Cir. 2017) (quoting 28 U.S.C. ' 2254(d)). That standard applies “even when a state court
does not explain the reasoning behind its denial of relief.” Carter v. Mitchell, 829 F.3d 455, 468
(6th Cir. 2016). “Under [Harrington v. Richter, 562 U.S. 86 (2011)], ‘[w]hen a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on its merits in the absence of any indication or state-law
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procedural principles to the contrary.’” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450,
460 (6th Cir. 2015) (quoting Harrington, 562 U.S. at 99). There is nothing in this record that
suggests a basis for rebutting that presumption. See Johnson v. Williams, 568 U.S. 289, 303
(2013).
A.
Foster first argues that her rights to due process and a fair trial were violated when she was
tried jointly with her co-defendant, David Hairston. She contends that the trial judge should have
severed the defendants, and that her attorney was ineffective by failing to move for severance or
for a separate jury. She says that she and Hairston presented mutually antagonistic defenses, and
the trial court and prosecutor acted as if she and Hairston “were one entity, not 2 individuals who
needed to be judged separately.” Pet. at 17, ECF No. 1, PageID17.
Because Foster never asked the trial court for severance, the Michigan Court of Appeals
held that she did not preserve the claim for appellate review. It appears, though, that the court
addressed the issue under a plain error standard and rejected it, declaring that “severance was not
necessary to prevent prejudice to her substantial rights.” Foster, 2015 WL 213123 at *1.
The
court found that, rather than presenting irreconcilable defenses, Foster and Hairston presented the
same main defense: the children had not been abused and KJ, the deceased’s sister, fabricated her
testimony about abuse. Ibid. Both defendants also raised the possibility that AJ died because she
lacked a thymus gland and, consequently, could not fight infection. Ibid. The state court also
rejected Foster’s argument that Hairston’s defense — that he did not live in the home with the
children and that he lacked control or authority over the children — necessarily implicated the
petitioner:
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Contrary to defendant’s argument, Hairston’s denial of control over the children
was not inconsistent with defendant’s main theory that the children had not been
abused and that AJ died from natural causes. The jury could have believed
Hairston’s theory that he had no access to the children, and therefore, he could
not have abused either child, as well as defendant’s theory that any injuries were
accidental and AJ died as a result of pneumonia due to her weakened immune
system. Thus, the jury could have believed the core of both defendant’s and
Hairston’s legal theories at trial. Moreover, to the extent Hairston’s denial of
control over the children was arguably at odds with defendant’s efforts at trial
to attribute the worst of any potential abuse to Hairston, we note that finger
pointing such as this by co-defendants does not create mutually exclusive
antagonistic defenses where, as in this case, the jury was instructed on an aiding
and abetting theory. In such circumstances, no prejudice is created by finger
pointing because the properly instructed jury could have found both defendants
similarly liable without any prejudice or inconsistency because one found guilty
of aiding and abetting can also be held liable as a principal. In other words,
defendant has not shown the existence of prejudice because she would have been
properly found guilty whether the jury believed she merely aided Hairston or
whether they believed she personally conducted the abuse. In short, defendant
has not shown the existence of mutually exclusive antagonistic defenses and she
is not entitled to relief on this basis.
Foster, 2015 WL 213123 at *2 (quotation marks and citations omitted).
This decision was consistent with governing federal law. When reviewing a claim that
alleged improper joinder of defendants violated a constitutional right, a habeas court must ask a
basic question: did the joint trial “result in prejudice so great as to deny a defendant h[er] . . . right
to a fair trial.” United States v. Lane, 474 U.S. 438, 446 n.8 (1986). Generally, severance is
granted “‘only if there is a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.’” Stanford v. Parker, 266 F.3d 458-59 (6th Cir. 2001) (quoting Zafiro v. United States,
506 U.S. 534, 539 (1993)). The Supreme Court has provided examples of when a defendant’s trial
should be severed from that of co-defendants: “when evidence that the jury should not consider
against a defendant and that would not be admissible if a defendant were tried alone is admitted
against a codefendant”; “[w]hen many defendants are tried together in a complex case and they
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have markedly different degrees of culpability”; when “[e]vidence [could be admitted] that is
probative of a defendant’s guilt but technically admissible only against a codefendant”; or “if
essential exculpatory evidence that would be available to a defendant tried alone were unavailable
in a joint trial.” Zafiro, 506 U.S. at 539 (citing Kotteakos v. United States, 328 U.S. 750, 774-775
(1946); Bruton v. United States, 391 U.S. 123 (1968); Tifford v. Wainwright, 588 F.2d 954 (5th
Cir. 1979) (per curiam). None of that occurred in Foster’s case.
Even if one could view Foster’s and Hairston’s defense as antagonistic, that alone would
not result in a fundamentally unfair trial. Antagonistic defenses exist “when one person’s claim
of innocence is predicated solely on the guilt of a co-defendant.” United States v. Harris, 9 F.3d
493, 501 (6th Cir. 1993) (citing United States v. Crawford, 581 F.2d 489 (5th Cir. 1978)). “The
mere fact that each defendant points the finger at another is insufficient [to require severance]; the
defendant must show that the antagonism confused the jury.” United States v. Horton, 847 F.2d
313, 317 (6th Cir. 1988). Foster has not made that showing.
“To find prejudice sufficient to require habeas corpus relief where it is not claimed that a
joint trial resulted in the deprivation of a specific constitutional guarantee such as the right to call
witnesses . . . or the right to confrontation . . ., [the court] must determine from the entire record
that the fundamental right to a fair trial as secured by the Fourteenth Amendment has been
abridged.” Jenkins v. Bordenkircher, 611 F.2d 162, 168 (6th Cir. 1979). This is a “very heavy
burden.” Stanford, 266 F.3d at 459. The state courts determined that Foster had not met that
burden. That decision reasonably applied federal law. Foster is not entitled to relief on her jointtrial claim.
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B.
Foster argues next that the prosecutor committed misconduct by appealing to the jury’s
sympathy for the victims, and by intentionally linking her with Hairston and treating them as a
unitary entity, suggesting that the two defendants must rise or fall together. Foster contends that
this latter misbehavior was aggravated by the trial court repeatedly referring only to “the
defendant” in the jury instructions. The state court of appeals disagreed. It held that the trial
court’s jury instructions clearly directed the jury that though both defendants were on trial, it must
consider each defendant separately. For example, the trial court instructed the jury:
April Foster and David Hairston are both on trial in this case. The fact that they
are on trial together is not evidence that they were associated with each other or
that either one is guilty. You should consider each defendant separately. Each
is entitled to have his or her case decided on the evidence and the law that applies
to them. If any evidence was limited to one defendant, you should not consider
it as to the other defendant.
Foster, 2015 WL 213123 at *3.
The court found no misconduct by the prosecutor because the prosecutor appropriately
argued that Foster and Hairston acted jointly in abusing, neglecting, and torturing A.J. and K.J.
Id. at *4. The court also held that even if the prosecutor’s argument “blurred the distinction”
between the two defendants, the trial court’s instruction cured any error. Id.
The Michigan Court of Appeals’s decision reasonably applied clearly established federal
law to its review of the prosecutor’s trial tactic, which is found in the Supreme Court’s decision in
Darden v. Wainwright, 477 U.S. 168, 181 (1986). See Parker v. Matthews, 567 U.S. 37, 46 (2012).
In Darden, the Supreme Court held that a “prosecutor’s improper comments will be held to violate
the Constitution only if they ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo,
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416 U.S. 637, 643 (1974)).
The state court’s decision denying Petitioner’s prosecutorial
misconduct claims “‘was [not] so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.’” Parker,
567 U.S. at 47 (quoting Harrington, 562 U.S. at 103).
The trial court accurately informed the jury that the defendants’ cases should be considered
separately. Jurors are presumed to follow a trial court’s instructions. Stanford, 266 F.3d at 459.
And there is no showing that the prosecutor’s conduct denied Foster a fair trial. It was natural for
the prosecutor to discuss the defendants together as they were both charged in connection with the
abuse suffered by A.J. and K.J. The prosecutor did not, however, urge the jury to consider the two
defendants as one entity or argue to the jury that the guilt of one defendant necessarily ordained
the guilt of the other. The jury was adequately instructed that each defendant stood trial for his or
her own actions.
Foster also criticizes the prosecutor’s rebuttal argument, contending that the prosecutor
improperly placed the prestige of her office behind the case and she appealed to the jury’s
sympathy. The petitioner specifically objects to the prosecutor’s following argument:
[W]hat Flint did is—has nothing to do with this case at all—at all with the Flint
Police.
What happened here is that about ten months ago, Sergeant [Samuel] Mackie []
and I, we sat down and we reviewed this case. And we looked at what we had
and we decided, ladies and gentlemen, that we would try to be the voice that
[AJ] never had.
We would try to give [KJ] a voice.
We would try to get justice for the murder of this little girl, for the abuse and
torture that they underwent.
And we can’t bring them back, but we can ask you for justice and that’s what
we’re doing here today, because we have done our best to present the evidence.
It’s now in your hands.
And I am asking you on behalf of [KJ], on behalf of [AJ], to find them guilty of
murder, child abuse, and torture. Because the evidence proves it, because that’s
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what they do, and because that is justice for those children.
Foster, 2015 WL 213123 at *6.
The Michigan Court of Appeals found none of the challenged comments improper. First,
the state court held that the prosecutor’s comments about her conversation with Sergeant Samuel
Mackie (a City of Detroit police officer) fairly responded to co-defendant Hairston’s argument that
Flint police officers did not initially identify Hairston as a suspect. Foster, 2015 WL 213123 at
*6. The prosecutor’s argument explained the progression of the state’s case and did not attempt
to bolster it based upon the prestige of the prosecutor’s office. The state court’s conclusion was
not contrary to Darden.
The Michigan Court of Appeals also found no error in the prosecutor’s argument that the
jury should “follow her lead” and “do justice” for A.J. and K.J. Ibid. The court of appeals held
that the prosecutor’s argument was “directly tied to the evidence” and did not seek a conviction on
any basis other than the strength of the evidence presented. Ibid. Certainly, the state’s attorney
“must obey the cardinal rule that a prosecutor cannot make statements calculated to incite the
passions and prejudices of the jurors.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006)
(internal quotation omitted). But a prosecutor does not overstep by appealing to the jurors’ sense
of justice. Bedford v. Collins, 567 F.3d 225, 234 (6th Cir. 2009). The Michigan Court of Appeals’s
evaluation of the prosecutor’s comments reasonably concluded that the prosecutor’s comments
remained within permissible bounds. Her argument was neither inflammatory nor intended to
incite passion or prejudices. Habeas relief is denied on this claim.
C.
Foster also contends that she was denied the effective assistance of counsel because her
attorney did not move to sever her trial from her co-defendant’s.
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A violation of the Sixth Amendment right to effective assistance of counsel is established
when an attorney’s performance was deficient, and the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is
deficient if “counsel’s representation fell below an objective standard of reasonableness.” Id. at
688. The petitioner must show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. The Supreme
Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead
[has] emphasized that the proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at
688) (quotation marks omitted).
An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. Unless the petitioner demonstrates
both deficient performance and prejudice, “it cannot be said that the conviction resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. at 687.
Success on ineffective-assistance-of-counsel claims is relatively rare, because the standard
for obtaining habeas corpus relief “is ‘difficult to meet.’” Woodall, 572 U.S. at 419, quoting
Metrish v. Lancaster, 569 U.S. 351, 358 (2013). The standard is “all the more difficult” on habeas
corpus review because “[t]he standards created by Strickland and § 2254(d) are both highly
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deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105
(citations and quotation marks omitted). “[T]he question is not whether counsel’s actions were
reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Ibid.
The Michigan Court of Appeals reviewed this claim for plain error because Foster did not
preserve the claim by moving for a new trial or an evidentiary hearing. Foster, 2015 WL 213123
at *4. It found no evidence that merited severance. Ibid. Because Foster and Hairston did not
offer incompatible defenses, the state court found no likelihood a motion to sever would have been
successful. Ibid. It concluded that defense counsel was not ineffective by failing to raise a
meritless motion. Ibid. The court also held that Foster did not overcome the presumption that trial
counsel’s decision not to move for severance or separate juries was a matter of trial strategy. Id.
at 5. Trial counsel may have concluded that, because Foster and Hairston denied the abuse
occurred, a joint trial offered the best opportunity to cast reasonable doubt on the prosecution’s
case. Or, counsel may have concluded that a joint trial created an opportunity to blame Hairston
alone for all of the abuse. Ibid.
Those holdings faithfully applied the Strickland standard. Counsel was not required to
raise meritless arguments. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). And the
decision to move for severance in this case can easily be categorized as trial strategy. Federal
habeas courts do not second-guess judgments of that sort. See White, 572 U.S. at 420; Strickland,
466 U.S. at 689 (cautioning that “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
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considered sound trial strategy’”) (citation omitted). The state court’s determination that failing
to move for a severance did not constitute ineffective assistance of counsel was therefore not an
unreasonable application of federal law.
D.
Finally, Foster asserts that she is entitled to habeas relief based upon cumulative error. The
Michigan Court of Appeals denied this claim because there were no individual errors and therefore
no cumulative error. Foster, 2015 WL 213123 at *7. The argument cannot justify habeas relief
from a federal court because the Supreme Court has never held that cumulative errors may form
the basis for issuance of a writ of habeas corpus. Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.
2002); see also Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (“[T]he law of [the Sixth
Circuit] is that cumulative error claims are not cognizable on habeas [review] because the Supreme
Court has not spoken on this issue.”). Foster’s cumulative-error claim, therefore, is not cognizable
on habeas corpus review. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v.
Parker, 425 F.3d 250, 256 (6th Cir. 2005)).
III.
None of the petitioner’s claims presents a basis to issue a writ of habeas corpus under 28
U.S.C. § 2254(d). The state courts’ decisions in this case were not contrary to federal law, an
unreasonable application of federal law, or an unreasonable determination of the facts. The
petitioner has not established that she is presently in custody in violation of the Constitution or
laws of the United States.
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Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: July 30, 2019
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first-class U.S. mail on July 30, 2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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