Brown v. MacLaren
Filing
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MEMORANDUM AND ORDER DENYING THE HABEAS PETITION AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SALATHIEL REZAR BROWN,
Petitioner,
v.
Case No. 2:16-cv-12543
CATHERINE S. BAUMAN,
Honorable Avern Cohn
Respondent.
_____________________________/
MEMORANDUM AND ORDER DENYING THE HABEAS PETITION
AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Salathiel Rezar Brown
(“Petitioner”) challenges his convictions for second-degree murder, M.C.L. § 750.317,
possession of a firearm by a felon, M.C.L. § 750.224f, and possession of a firearm
during the commission of a felony (“felony firearm”), M.C.L. § 750.227b. Petitioner
claims that his right to due process was violated when a juror (“Juror # 2”) had a brief
discussion at a social event with an assistant prosecutor-not on Petitioner’s case-and
the trial court failed to ask the other jurors about any discussions they may have had
with Juror # 2. Petitioner also claims that his trial attorney provided ineffective
assistance by not objecting to the trial court’s failure to question the jurors regarding any
impact the actions of Juror # 2 may have had on them.
The State argues that Petitioner procedurally defaulted his due process claim
and that the state appellate court’s adjudication of Petitioner’s claims was not contrary
to federal law, an unreasonable application of federal law, or an unreasonable
determination of the facts. For the reasons stated below, the Court agrees that
Petitioner is not entitled to relief. Accordingly, the petition will be denied.
II. Background
Petitioner was charged with first-degree murder, felon in possession of a firearm,
felony firearm, and two counts of felonious assault. A jury found him not guilty of
felonious assault, but guilty of second-degree murder, as a lesser offense of first-degree
murder, and guilty, as charged, of felon in possession of a firearm and felony firearm.
The trial court sentenced Petitioner to a term of 100 years to life for the murder
conviction, a concurrent term of three years, four months to five years for the felon-inpossession conviction, and a consecutive term of two years for the felony-firearm
conviction. The trial court later modified the sentence for second-degree murder to 100
to 150 years in prison.
Petitioner appealed as of right, arguing that the trial court violated his right to due
process by failing to question the jurors about any taint caused by the actions of Juror #
2. Petitioner also claimed that defense counsel was ineffective for failing to request
further questioning. The Michigan Court of Appeals affirmed Petitioner’s convictions in
an unpublished decision, see People v. Brown, No. 316648, 2014 WL 4495231 (Mich.
Ct. App. Sept. 11, 2014). The Michigan Supreme Court denied leave to appeal. See
People v. Brown, 860 N.W.2d 636 (Mich. 2015) (table).
Petitioner then filed a pro se habeas corpus petition, raising the following claim:
A juror at my trial discussed my case (on an evening during the trial) at a
dinner party with a prosecutor (not the prosecutor at my trial). Though the
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trial court judge dismissed the juror, neither the judge, prosecutor, nor
even my lawyer questioned the remaining jurors concerning possible
impermissible/prejudicial discussions the ousted juror may have had with
the other jury members prior to being ousted.
Petitioner subsequently acquired counsel who filed an amended petition that
added an ineffective assistance claim.
III. Legal Standards
A. Standard of Review
28 U.S.C. § 2254(d) 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 proceedings.
28 U.S.C. § 2254(d).
“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 § 2254(d)(1)
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
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governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413).
In simple terms, the Supreme Court has said that the standard of review is
“difficult to meet” and is a “highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The Supreme Court has
further said that a federal court must guard against “using federal habeas corpus review
as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010).
Finally, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358,
360-61 (6th Cir. 1998).
B. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner
must show that “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. The deficientperformance prong “requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
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Amendment.” Id. “[T]he defendant must show that counsel’s representation fell below
an objective standard of reasonableness. Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A
defendant must demonstrate “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.
In a habeas case, moreover, review of an ineffective-assistance-of-counsel claim
is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S. Ct.
1388, 179 L.Ed.2d 557 (2011), because counsel is “strongly presumed to
have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment,” Burt v. Titlow, 571 U.S.
––––, ––––, 134 S. Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984); internal quotation marks omitted). In such circumstances, federal
courts are to afford “both the state court and the defense attorney the
benefit of the doubt.” Burt, supra, supra, at ––––, 134 S. Ct., at 13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam).
IV. Analysis
A. Trial Court’s Failure to Question the Jurors
Petitioner first claims that he was deprived of due process because the trial court
did not ask the jurors who remained on his case whether the actions of Juror # 2 tainted
their view of the case. Petitioner argues that, because the trial court failed to explore
any impact Juror # 2 may have had on the rest of the jury, the fairness of his trial
remains unknown.
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The Michigan Court of Appeals reviewed Petitioner’s claim for “plain error.” The
Court of Appeals concluded that the trial court did not plainly err by proceeding without
questioning the remaining jurors because the jurors were presumed to be impartial and
because there was no evidence that Juror # 2 did or said anything to taint the remaining
jurors.
1. Procedural Default
The States argues that Petitioner’s due process claim is procedurally defaulted.
In the habeas context, a procedural default is “a critical failure to comply with state
procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the doctrine of
procedural default, “a federal court will not review the merits of [a state prisoner’s]
claims, including constitutional claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9
(2012). In this Circuit,
“[a] habeas petitioner’s claim will be deemed procedurally defaulted if
each of the following four factors is met: (1) the petitioner failed to comply
with a state procedural rule; (2) the state courts enforced the rule; (3) the
state procedural rule is an adequate and independent state ground for
denying review of a federal constitutional claim; and (4) the petitioner has
not shown cause and prejudice excusing the default.” [Jalowiec v.
Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To determine whether a
state procedural rule was applied to bar a habeas claim, [courts] look “to
the last reasoned state court decision disposing of the claim.” Guilmette v.
Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
The state procedural rule in question here is Michigan’s contemporaneousobjection rule, which requires defendants in criminal cases to preserve their appellate
claims by objecting first in the trial court. See People v. Carines, 597 N.W.2d 130, 1376
38 (Mich. 1999). Petitioner violated this rule by not objecting to the trial court’s failure to
question the jurors who remained on his case whether the out-of-court conversation that
Juror #2 had with a prosecutor tainted them. The first procedural-default factor is
satisfied.
The second factor is enforcement of the rule. A state court’s review of a claim for
“plain error” constitutes enforcement of a state procedural rule, Smith v. Bradshaw, 591
F.3d 517, 522-23 (6th Cir. 2010), and in this case the Michigan Court of Appeals
reviewed Petitioner’s claim for “plain error.” The second factor is satisfied.
The third procedural-default factor requires determining whether the state
procedural rule in question is an adequate and independent state ground for denying
review of a federal constitutional claim. “The adequacy of a state procedural bar turns
on whether it is firmly established and regularly followed; a state rule is independent if
the state court actually relies on it to preclude a merits review.” Biros v. Bagley, 422
F.3d 379, 387 (6th Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)).
“Michigan’s contemporaneous-objection rule is both a well-established and normally
enforced procedural rule,” Taylor v. McKee, 649 F.3d 446, 451 (6th Cir. 2011), and the
Michigan Court of Appeals relied on the rule to preclude full review of Petitioner’s due
process claim. Therefore, the third procedural-default factor is satisfied, and Petitioner
must show “cause” for his procedural error and resulting prejudice.
2. “Cause”
Petitioner contends that his trial attorney should have objected when the trial
court failed to question his jurors about the possibility of taint from the misconduct of
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Juror # 2. An attorney’s ineffectiveness in failing to preserve a claim for review in state
court can be “cause” to excuse a procedural default. Edwards v. Carpenter, 529 U.S.
446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “Not just any
deficiency in counsel’s performance will do, however; the assistance must have been so
ineffective as to violate the Federal Constitution.” Id. Petitioner must show that his trial
“counsel’s performance was deficient” and “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court looks to
Petitioner’s underlying due process claim to determine whether his trial counsel was
ineffective for failing to object to the trial court’s handling of the juror-misconduct issue.
In other words, the Court must determine whether the due process claim has merit.
3. Merits
a. Federal Law
The Sixth Amendment to the United States Constitution guarantees the accused
in a criminal prosecution the right to an impartial jury. U.S. CONST. amend. VI; Warger
v. Shauers, 574 U.S. 40, __, 135 S.Ct. 521, 528 (2014). This right “is applicable to the
states via the Fourteenth Amendment,” Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir.
2003), and the failure to accord an accused a fair hearing before a panel of impartial,
indifferent jurors violates even the minimal standards of due process. Irvin v. Dowd,
366 U.S. 717, 722 (1961).
In Lang v. Bobby, 889 F.3d 803 (6th Cir. 2018), cert. denied, 139 S. Ct. 798
(2019), the United States Court of Appeals for the Sixth Circuit explained that
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[u]nder the standard established by the Supreme Court in Remmer v.
United States, [347 U.S. 227 (1954)], when there is evidence of possible
juror bias, a defendant is entitled to a hearing with all interested parties
present to determine the circumstances, the impact on the juror, and
whether the information was prejudicial. 347 U.S. at 229-30, 74 S.Ct. 450.
Subsequently, in Smith v. Phillips, [455 U.S. 209 (1982)], the Court
narrowed the Remmer standard to require that a petitioner show actual
prejudice when alleging juror partiality. 455 U.S. at 217, 102 S.Ct. 940. . . .
The Supreme Court held that “the remedy for allegations of juror partiality
is a hearing in which the defendant has the opportunity to prove actual
bias,” and that due process does not require a new trial whenever a juror
is placed in a compromising situation. Id. at 215, 217, 102 S.Ct. 940.
In cases applying Remmer and Smith, the habeas petitioner bears the
burden to demonstrate that a juror was biased. See Sheppard v. Bagley,
657 F.3d 338, 348 (6th Cir. 2011) (Batchelder, C.J., concurring).
Moreover, a juror’s testimony at a Remmer hearing is not inherently
suspect. See Jackson v. Bradshaw, 681 F.3d 753, 767 (6th Cir. 2012);
Zuern v. Tate, 336 F.3d 478, 486 (6th Cir. 2003).
Id. at 811.
b. Relevant Facts
The Michigan Court of Appeals accurately summarized the relevant facts as
follows:
During voir dire, Juror # 2 disclosed that he was acquainted with a female
prosecutor, who he identified as “Emily McConnell.” He could not be
positive that she worked at the prosecutor’s office, but he knew she was a
prosecutor. He explained that he only knew her “socially,” but that their
acquaintance would not affect his ability to fairly decide the case.
Defendant did not object to Juror # 2 and he was added to the panel.
On the fourth day of defendant’s trial, the prosecutor learned that Juror # 2
had attended a wine-tasting the night before, during which time Juror # 2
mentioned to his prosecutor-acquaintance that he was on jury duty at the
circuit court. Outside the presence of the rest of the jurors, the prosecutor
brought this issue to the trial court’s attention and the trial court
questioned Juror # 2:
The Court: Okay. And [Juror # 2], have you had some
conversations with a member of the Wayne County
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Prosecutor’s Office?
Juror # 2: I know someone from the Prosecutor’s Office,
yes.
The Court: Alright. And it has come to our attention that you
talked with them last night; is that correct?
Juror # 2: I was at a dinner engagement.
The Court: Okay. And what’s that person’s name?
***
Juror # 2: Last name is Wolf, and I learned that last night.
The Court: The prosecutor’s name is Wolf?
Juror # 2: Correct.
***
The Court: Okay. Alright. And earlier when we were doing
jury selection you were asked about anybody in law
enforcement and you said a person’s name that you thought
might be with the Wayne County Prosecutor’s Office, might
not. Is that who you were talking about?
Juror # 2: Yes.
The Court: Okay. Tell us, give us—Tell us all about what
happened and what the event was and everything.
Juror # 2: It was a—Her husband, which is why I had the
natural, the name wrong.
The Court: Okay.
***
Juror # 2: He’s my stockbroker and he hosted a wine dinner.
***
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The Court: Okay.
Juror # 2: The extent of the conversation was that you know
I was in a case, you know. I think she asked if it was Circuit
Court, and I said yes. And she said well, we can’t talk about
it. Essentially, that’s it.
The Court: Did you tell her about the case, what kind of
case it was?
Juror # 2: Um, no. I don’t, I don’t think so.
The Court: Okay.
Juror # 2: She did ask me who the prosecutor was.
The Court: Okay. And who did you—did you say?
Juror # 2: I said it was an Indian guy.
The Court: Okay. Did she ask you any other questions
other than that?
Juror # 2: Um, I don’t, I don’t recall anything more specific
than that.
The Court: Did you talk about that it was a First[-]Degree
Murder case or a felony case or anything like that?
Juror # 2: I didn’t get into the [sic] level of detail.
The Court: And you didn’t—did you tell about who the
defendant was or the victim or what—
Juror # 2: No, sir.
***
The Court: . . . Sir, have you discussed any of this
conversation with any of the other jurors?
Juror # 2: I have not.
The Court: You haven’t told them anything about what
happened last night or anything?
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Juror # 2: No, sir.
The trial court dismissed Juror # 2 and the trial proceeded.
Brown, 2014 WL 4495231, at *1–2; see also 5/2/13 Trial Tr. at 27-41 (Doc. 20-6,
PageID. 650-664).
c. Application of the Law to the Facts
Petitioner’s due process claim lacks merit. Juror # 2 swore to tell the truth when
the trial court questioned him, and it is clear from his testimony that he did not discuss
his dinner-party conversation with the other jurors. He was dismissed several days
before the jury deliberated Petitioner’s case. The trial court made sure that he did not
have any contact with the other jurors after he testified about his actions.
Moreover, even if Juror # 2 mentioned his dinner-party conversation to the other
jurors, his brief conversation with a prosecutor could not have affected the jurors’
impartiality because he apparently did not say anything specific about the case, other
than to identify the prosecutor by his ethnicity. This is clear from prosecutor Wolf’s text
message to the prosecutor in Petitioner’s case that she and Juror # 2 “didn’t talk about
the case, just about the fact that he didn’t know my last name.” Id. at 27, PageID. 650.
Because trial counsel was deficient, Petitioner has not established “cause” to overcome
the procedural default.1
1
In light of this determination, it is not necessary to consider whether the alleged error
prejudiced Petitioner. See Smith v. Murray, 477 U.S. 527, 533 (1986). Petitioner has
also not shown that the failure to consider his claim will result in a fundamental
miscarriage of justice because he has not supported his constitutional claim with new
and reliable evidence of actual innocence. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Schlup v. Delo, 513 U.S. 298, 324 (1995).
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B. Trial Counsel
Petitioner asserts as an independent claim that his trial attorney was ineffective
for not objecting to the trial court’s failure to question the jurors after the dismissal of
Juror # 2. The Michigan Court of Appeals held that Petitioner was not denied effective
assistance of counsel because any objection to the trial court’s failure to question the
jurors would have been futile. The Court agrees. Petitioner’s trial attorney was not
ineffective when she did not object to the trial court’s failure to ask the remaining jurors
whether the actions of Juror # 2 had a prejudicial impact on them. To her credit, trial
counsel persuaded the trial court to dismiss Juror # 2 for violating the trial court’s order
not to talk about the case. Finally, as explained in detail above, Petitioner’s underlying
due process claim lacks merit. Petitioner cannot show that trial counsel was ineffective
for failing to raise a meritless issue. Hoffner v. Bradshaw, 622 F.3d 487, 509 (6th Cir.
2010).
V. Conclusion
For the reasons stated above, Petitioner’s due process claim is procedurally
defaulted, and the state court’s adjudication of his ineffective-assistance-of-counsel
claim was not contrary to, or an unreasonable application of, Strickland.
Accordingly, the petition is DENIED.
Further, reasonable jurists could not debate whether the Court’s procedural ruling
on Petitioner’s due process claim is correct or whether Petitioner has stated a valid
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claim of the denial of a constitutional right. Reasonable jurists would not find the Court’s
assessment of Petitioner’s ineffective-assistance-of-counsel claim debatable or wrong.
As such, the Court DECLINES to issue a certificate of appealability.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 6/19/2019
Detroit, MI
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