Royster v. Trierweiler
Filing
8
OPINION and ORDER 1) Denying 1 Petition for Writ of Habeas Corpus, 2) Granting a Certificate of Appealability with respect to petitioner's third claim and 3) Denying a Certificate of Appealability with respect to petitioner's remaining claims. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYANT LAMONT ROYSTER,
Petitioner,
Case No. 2:17-cv-10101
Hon. George Caram Steeh
v.
TONY TRIERWEILER,
Respondent.
___________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT
OF HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF
APPEALABILITY WITH RESPECT TO PETITIONER’S THIRD
CLAIM, AND (3) DENYING A CERTIFICATE OF APPEALABILITY
WITH RESPECT TO PETITIONER’S REMAINING CLAIMS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. §
2254.1 Petitioner Bryant Lamont Royster was convicted after a bench trial
in the Wayne Circuit Court of first-degree felony murder, MICH. COMP. LAWS
§ 750.316. Petitioner was sentenced to life imprisonment.
The petition raises four claims: (1) Petitioner’s right to a public trial
was violated when the courtroom was cleared of members of the public
1
Petitioner was tried with co-defendant Demetrius William Edwards, who was also
convicted of first-degree murder. Edwards filed a petition under § 2254, raising the
same claims raised by Petitioner. See Edwards v. McCullick, Eastern District of
Michigan Case No. 2:17-cv-10103. That petition will be adjudicated in a separate
opinion, though there is a substantial overlap between the two cases.
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during his preliminary examination, (2) Petitioner was denied adequate
notice of the charges because the felony information omitted the element of
malice from the felony murder charge, (3) Petitioner’s right to be personally
present, his right to confront witnesses, and his right to counsel were
violated during two mid-trial visits to the crime scene, and (4) Petitioner
was denied the effective assistance of counsel by his attorney’s failure to
investigate prosecution witness Deonte Smith prior to trial.
The Court finds that Petitioner’s claims are without merit or barred by
his state court procedural defaults. Therefore, the petition will be denied.
The Court will, however, grant a certificate of appealability with respect to
Petitioner’s third claim, but it will deny a certificate of appealability with
respect to his other claims.
I. Background
The Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.
2009):
This case is the latest and—with life sentences—now the
last of these young defendants’ routine disrespect for the rule of
law. The facts of this case stretch back to the evening of
September 24, 2010. On that day, Edwards was free on a GPS
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tether to “settle [his] affairs,” having been sentenced just the
day before for a prior armed robbery conviction. Apparently,
those affairs included a trip to the Eastland Mall with Royster
and two acquaintances, Devante Smith and Jaisaun Holt.
Around 8:30 p.m., the decedent, Cedell Leverett, was
sitting in the driver’s seat of his Mercedes parked in the valet
area of Eastland Mall. Another car was parked nearby. Deborah
Gaca observed Edwards get out of the other car, and run
towards the valet area in a crouched position. Edwards was
holding a gun. Royster, who was standing outside the driver’s
side of the other car, yelled, “Pop him, pop that mother f*****
good.” Edwards then fired four shots into the Mercedes at close
range, killing Leverett. Edwards ran back to the other car, which
was backing out, and fled the scene. Police subsequently
arrived and found over $3,000 in the decedent’s pocket.
Corroborating Edwards’s and Royster’s presence at the
Eastland Mall during this time were a surveillance video and
Edwards’s tether records.
Holt confirmed in a police interview (which he later
disavowed at trial) that Edwards intended “to get [the
decedent’s] glasses and he hit him,” before Royster whisked
them away in the car. Although Holt also elaborated that
Edwards claimed to have shot the decedent after the decedent
brandished a firearm, police found no weapons in or around the
Mercedes or on the decedent’s person during their investigation
immediately after the shooting. Devante claimed the others left
the Eastland Mall without him.
Deonte Smith, Devante’s brother, provided further
information regarding the shooting during a police interview.
Deonte stated that he saw defendants, Holt, and his brother
(Devante) at a high school football game sometime after the
shooting. At the game, “they” told Deonte they had seen a man
walking around the Eastland Mall with a diamond watch and
$12,000 to $15,000 cash in his pocket. Holt kept tabs on this
man and reported to Edwards by phone. Edwards “bragged” to
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Deonte that he tracked the man outside and tried to rob the
man of his watch, but because the man was reaching for
something, Edwards shot him. Others at the football game told
Edwards he was stupid for not getting anything.
About a week after the shooting, a security officer at the
Northland Mall in Southfield saw Edwards toss a gun under an
SUV in the parking lot while fleeing a fight. Edwards was
arrested at the scene. Royster was apparently arrested shortly
thereafter. Subsequent tests of the gun revealed that this
weapon had fired the shell casings and bullet fragments found
in and around the Mercedes and inside the decedent at the
Eastland Mall one week earlier. In addition, police interviewed
another individual who had previously accompanied the
decedent on the day of his death and whom the police found at
the scene of the Eastland Mall after the shooting. That
individual surrendered a diamond watch and sunglasses.
Notably, the decedent’s daughter saw the decedent wearing a
diamond watch and sunglasses earlier that same day.
The case subsequently proceeded to trial at the
conclusion of which the court made its findings on the record.
As noted, the court acquitted defendants of first-degree
premeditated murder, but found them guilty of the offenses at
issue. Defendants were sentenced, and this appeal followed.
People v. Royster, 2015 WL 1069275, at *1-2 (Mich. Ct. App. March 10,
2015).
Following his conviction and sentence, Petitioner filed an appeal of
right. His appellate counsel filed a brief on appeal, raising three claims, the
third of which forms part of his third habeas claim:
I. The trial court’s finding of guilty of felony murder must be
reversed when defendant was merely present at the mall where
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the murder occurred.
II. Defendant was denied due process to a fair trial when he
was denied the effective assistance of counsel when trial
counsel failed to subpoena exculpatory witnesses.
III. Defendant was denied the right of confrontation and the
right to a fair trial when the trial court observed the scene of the
crime without the parties present and used information
gathered from the scene to find defendant guilty.
Petitioner also filed a supplemental pro se brief raising an additional
five claims:
I. Defendant Royster was deprived of his structural right to a
public trial when the District Court judge expelled the members
of the public in attendance at the preliminary examination at the
end of business hours and proceeded to conduct the
preliminary examination in the complete absence of the general
public and ultimately secured testimony from Deonte Smith.
This error seriously affected the fairness, integrity, and public
reputation of the judicial proceedings because the preliminary
examination testimony of Deonte Smith which was secured in
violation of defendant Royster’s Sixth Amendment right to a
public trial was ultimately introduced at the trial itself and relied
upon by the trier of fact to convict defendant Royster of felony
murder.
II. Reversal is required where the trial court failed to comply
with the requirements of MCR 6.402(B), to the extent that the
trial court judge completely neglected to ascertain “by
personally addressing the defendant, whether defendant
Royster voluntarily chose to give up his Sixth Amendment right
to trial by jury, and given the strong presumption against waiver
of fundamental constitutional rights the waiver cannot be
presumed to be voluntary from a silent record.
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III. Reversal is required due to the violation of Defendant
Royster’s Sixth and Fourteenth Amendment right to adequate
notice of charge, where defendant Royster was charged with
felony murder, but the felony Information and the statute itself
omitted the essential mens rea of malice element, leaving
defendant Royster completely unaware of the prosecution’s
duty to prove this element which hindered his ability to prepare
to disprove it.
IV. Defendant Royster was deprived of his right to be present
during all critical stages of the proceedings where he was
excluded from the viewing of the alleged scene of the crime
over his objection, without adequate justification for his
exclusion, denied his right to confrontation when one of the star
witnesses was permitted to attend the viewing of the alleged
scene of the crime and permitted to provide additional
testimony in defendant Royster’s absence, completely deprived
of his Sixth Amendment right to counsel during a critical stage
of the proceedings when the trial court judge who was also the
trier of fact reported to the alleged scene of the crime, for a
second time, without defendant Royster, his attorney, or the
prosecutor and relied on evidence that he gathered during his
solo viewing to convict defendant Royster.
V. Defendant Royster was deprived of his right to the effective
assistance of counsel based on his attorney’s failure to: (1)
object to the admission of transcribed testimony which was
secured in violation of the Sixth Amendment right to a public
trial, (2) counsel failed to object to the trial court judge’s failure
to inquire into the voluntariness of the waiver of trial by jury,
and (3) counsel’s failure to object to the defective felony
information.
Petitioner’s first pro se claim now forms his first habeas claim. His
third pro se claim is now his second habeas claim. His fourth pro se claim
makes up the rest of his third habeas claim. Finally, Petitioner’s fourth
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habeas claim asserts a different factual–the failure to investigate Deonte
Smith prior to trial–then the one presented to the Michigan Court of
Appeals.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion. Royster, 2015 WL 1069275. Petitioner subsequently
filed an application for leave to appeal in the Michigan Supreme Court,
raising the same claims that he raised in the Michigan Court of Appeals.
The Michigan Supreme Court denied the application because it was not
persuaded that the questions presented should be reviewed. People v.
Royster, 870 N.W.2d 67 (Mich. Oct. 15, 2015)(Table).
II. 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 barred
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
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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 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
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lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103 (internal quotation omitted).
III. Analysis
A. Public Trial
Petitioner’s first claim asserts that his right to a public trial was
violated when the state district judge cleared members of the public from
the courtroom during the first day of the preliminary examination. Petitioner
claims that the error was prejudicial because after the courtroom was
cleared witness Deonte Smith provided what Petitioner claims is the only
evidence that the murders were perpetrated during the course of a robbery.
Respondent asserts in part that the claim is procedurally defaulted because
no contemporaneous objection was made to the closure of the courtroom.2
The Sixth Amendment to the United States Constitution guarantees
that a criminal defendant, “shall enjoy the right to a . . . public trial.” U.S.
Const. Amend. VI. This right is made applicable to the States through the
2
Petitioner asserts that Respondent abandoned its procedural default defense because
it conflates the concept of “forfeiture” and “waiver.” See Dkt. 7, Reply Brief, at 18-19.
Petitioner’s assertion is incorrect. Respondent’s Answer clearly asserts that review of
this claim is barred by Petitioner’s procedural default in addition to being waived. See
Dkt. 5, Response, at 30-31.
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Fourteenth Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010)
(citing In re Oliver, 333 U.S. 257 (1948)). “The requirement of a public trial
is for the benefit of the accused; that the public may see he is fairly dealt
with and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their responsibility
and to the importance of their functions.” Id., at 270 n.25 (quotation marks
and citation omitted). “In addition to ensuring that judge and prosecutor
carry out their duties responsibly, a public trial encourages witnesses to
come forward and discourages perjury.” Waller v. Georgia, 467 U.S. 39, 46
(1984).
The Waller Court identified four factors a court must consider, and
findings a court must make, before excluding members of the public from
the courtroom: (I)“the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced,” (ii) “the closure must be
no broader than necessary to protect that interest,” (iii) “the trial court must
consider reasonable alternatives to closing the proceeding,” and (iv) “it
must make findings adequate to support the closure.” Id. at 48.
Like many other constitutional rights held by the criminally accused,
however, the right to a public trial may be forfeited or waived if not
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asserted. See Levine v. United States, 362 U.S. 610, 619 (1960) (“The
continuing exclusion of the public in this case is not to be deemed contrary
to the requirements of the Due Process Clause without a request having
been made to the trial judge to open the courtroom at the final stage of the
proceeding, thereby giving notice of the claim now made and affording the
judge an opportunity to avoid reliance on it. This was not a case of the kind
of secrecy that deprived petitioner of effective legal assistance and
rendered irrelevant his failure to insist upon the claim he now makes.
Counsel was present throughout, and it is not claimed that he was not fully
aware of the exclusion of the general public.”).
As the Sixth Circuit explained:
While we agree that the right to a public trial is an important
structural right, it is also one that can be waived when a
defendant fails to object to the closure of the courtroom,
assuming the justification for closure is sufficient to overcome
the public and media’s First Amendment right to an open and
public trial proceeding. See Freytag v. Commissioner, 501 U.S.
868, 896 (1991) (“[T]he Sixth Amendment right to a trial that is
‘public,’ provide[s] benefits to the entire society more important
than many structural guarantees; but if the litigant does not
assert [it] in a timely fashion, he is foreclosed.”) (collecting
cases); see also Peretz v. United States, 501 U.S. 923, 936-37
(1991) (citing Levine v. United States, 362 U.S. 610, 619
(1960)). Because [the habeas petitioner] failed to object to the
closure, his claim is procedurally defaulted unless he can show
cause and prejudice for the default. Coleman v. Thompson, 501
U.S. 722, 750 (1991).”
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Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009).
Here, neither counsel for Petitioner nor counsel for his co-defendant
objected to the removal of members of the public during the preliminary
examination.
The record indicates that for about a half-hour during the first day of
the preliminary examination, proceedings were interrupted by repeated
disturbances by members of the public, prompting the court to remove
members of the public from the hearing. In the midst of an otherwise
unremarkable examination of a witness by the prosecutor during the
preliminary examination, there appears an alarming entry in the record: “(At
3:54 p.m. to 3:55 p.m., riot in courtroom).” Dkt. 6-3, at 76. The next fifteen
pages of the record describe the tumult in the courtroom and the court’s
efforts to retain control over the proceedings:
• The court warns anyone that is standing that they will be
arrested. Id. at 76.
• A police officer orders an unidentified man out of the
courtroom. Id.
• The court warns the people in the courtroom about the
dangers of a mob mentality. Id. at 77.
• Two people leave the courtroom crying. Id.
• A member of the public accuses one of the defendants of
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saying, “that’s why that motherfucker dead.” Id.
• A member of the public accuses one of the defendants of
spitting on a girl in the courtroom. Id.
• The record indicates, “(At 3:59 p.m. to 4:00 p.m., another riot
in courtroom and in hallway).” Id. at 78-79.
• The court orders one side of the gallery, apparently the side
there in support of the defendants, to leave. Id. at 79.
• A woman is arrested after swearing. Id.
• The court orders that both “sides” will be removed and it will
“hold court in private.” Id. at 80.
• A man asks the court what happened to his wife, saying that
“her head is swelled up this big. We’re supposed to be
protected in here.” Id.
• The court indicates that police from seven jurisdictions are
present. Id.
• A police chief asks for an additional ten minutes before
removing the second half of the gallery, apparently those
present in support of the victim. Id.
• The court indicates that it will attempt to “clear the area so you
don’t get jumped by anybody where we don’t have security
cameras, or anybody there to help you.” Id. at 81.
• A police lieutenant indicates that the second side of courtroom
will not be removed because “we assume the problem is gone.”
Id.
• A few minutes later, the court reverses course again and
indicates that the second side will, in fact, be removed “[after]
it’s clear outside, these people will be released.” Id. at 82.
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• The court states: “This is very, very disturbing. I have never I’ve been here thirty-five years, and I have never had anything
close to anything like this. Nothing close.” Id. at 83.
• The court warns defendant Edwards that if he stands up again
he will be “banished from the rest of the proceedings.” Id.
• A witness is brought in a scout car, “[b]ut we didn’t want to
bring him through. . . . With everything that’s going on. . . .
They’ll be bringing him right through the side.” Id. at 91.
• The court removes the rest of the public at 4:29, stating: “I’m
going to now empty the courtroom. I’m advised that it should be
safe for you. The police will be out there looking to make sure
none of you are jumped, or anything. But I can’t guarantee your
safety.” Id. at 100.
• After the courtroom is emptied, the examination of Deonte
Smith continues until 5:59. Id. at 181.
At no point in the proceedings did either attorney for the defendants
object to any of the actions of the court. On the next morning of the
preliminary examination the court indicated that it had entered an order
agreed upon by the parties limiting access of the public for the remainder of
the preliminary examination:
The Court: I have created an Order that provides for limited
seating. I asked defense counsel for the name of the witnesses
that they would like to have present, and they gave me a list.
The, and for the - not the Attorney General, the prosecuting
office, for the victim’s family. And we have, and I have entered
an Order yesterday limiting it to these people that were agreed
to . . . .
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* * *
And so we are all satisfied at this point. I understand
we’re going to place on the record that between all the parties,
we have no objections to proceeding with this reduced access
to the public. We did provide that the public could be these
witnesses, but also any other members of the press with
credentials, and of course, what we call resources of police
response.
So, Ms. Towns [the prosecutor], are we in agreement on
that?
Ms. Towns: Yes, Judge. That’s fine with the People.
The Court: And Mr. Glanda [counsel for Edwards]?
Mr. Glanda: Yes, Judge.
The Court: And Ms. Diallo [counsel for Royster]?
Ms. Diallo: No objection on behalf of Mr. Royster.
Dkt. 6-5, at 3-5.
“In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
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A four-part test is used to determine whether a claim is procedurally
defaulted: (1) there exists a state procedural rule that is applicable to the
petitioner’s claim and the petitioner failed to comply with the rule, (2) the
state courts actually enforced the state procedural sanction, (3) the state
procedural ground is an adequate and independent state ground on which
the state can rely to foreclose review of a federal constitutional claim, and
(4) the petitioner has not demonstrated cause for failing to follow the
procedural rule and actual prejudice. Stone v. Moore, 644 F.3d 342, 346
(6th Cir. 2011).
The first inquiry is whether there exists a procedural rule applicable to
Petitioner’s claim, and whether Petitioner violated it. Michigan courts “have
long recognized that, in general, an issue is not properly preserved for
appeal if it is not raised before the trial court.” People v. Bauder, 712
N.W.2d 506, 510 (Mich. Ct. App. 2005) (citing People v. Grant, 520 N.W.2d
123, 128 (Mich. 1994)). Petitioner’s counsel did not comply with the
procedural rule when she failed to object to the state district court’s actions
during the disruptions on the first day of the preliminary examination. When
the matter was discussed the next morning, counsel agreed to the Court’s
order limiting access of the public to the remainder of the preliminary
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examination, and she made no objection regarding the court’s actions of
the previous day. Accordingly, Petitioner failed to comply with Michigan’s
contemporaneous objection rule, and, therefore, the first prong of the
procedural default test is met.
Next, the Michigan Court of Appeals enforced the procedural
sanction. In determining whether state courts have relied on a procedural
rule to bar review of a claim, a court looks to the last reasoned opinion of
the state courts and presumes that higher state courts not rendering an
explained decision enforced the bar as well. Hinkle v. Randle, 271 F.3d
239, 244 (6th Cir. 2001) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Furthermore, this court has recognized that “[p]lain error analysis
. . . is not equivalent to a review of the merits,” and plain error review
enforces rather than waives procedural default rules. Lundgren v. Mitchell,
440 F.3d 754, 765 (6th Cir. 2006); Hinkle, 271 F.3d at 244 (characterizing
plain error review as the enforcement of a procedural default). The
Michigan Court of Appeals, the last state court to issue a reasoned opinion
reviewing co-defendant Edward’s public trial claim, found that it was
subject to plain error review, and later in the opinion noted that Royster’s
claim was subject to the same standard:
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“[A] defendant’s right to a public trial is subject to the forfeiture
rule articulated in People v. Carines, [460 Mich. 750; 597
N.W.2d 130 (1999)] . . . .” People v. Vaughn, 491 Mich. 642,
646; 821 N.W.2d 288 (2012). Thus, for [Petitioner] to prevail on
this unpreserved issue, he must show plain error affecting his
substantial rights, i.e., outcome determinative error.
* * *
Royster lodged no objection on this novel theory (or on any
other ground) below, and so we are looking for outcome
determinative error that adversely affected the proceedings or
resulted in the conviction of an innocent defendant. Carines,
460 Mich at 774.
* * *
Royster’s failure to object yet again leaves us looking for plain
error affecting substantial rights.
Royster, 2015 WL 1069275, *3, 14. The Michigan Supreme Court
subsequently denied leave to appeal by unexplained order. Therefore, the
state courts enforced the contemporaneous-objection procedural sanction.
Third, the Court must determine whether the procedural bar was an
“adequate and independent” state ground foreclosing a merits review of
Petitioner’s claim. The adequate and independent state ground doctrine
“applies to bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement.” Coleman, 501 U.S. at 729-30. “The adequacy of a
state procedural bar turns on whether it is firmly established and regularly
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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) (citation
omitted)). The Sixth Circuit has recognized that Michigan’s
contemporaneous objection rule is regularly followed. Simpson v. Jones,
238 F.3d 399, 409 (6th Cir. 2000) (citing Draper v. Adams, No. 98-1616,
2000 WL 712376, at *9 (6th Cir. 2000) (unpublished table decision)).
Petitioner argues that enforcement of the contemporaneous objection
rule does not provide an adequate basis to bar review of his public trial
claim because the Supreme Court has enforced the right despite a lack of
objection at trial. See Dkt. 7, Reply Brief, at 19-22 (citing In re Oliver, 333
U.S. 257, 272 (1948); Gannet Co v. DePasquale, 443 U.S. 368, 375
(1979); Richmond Newspapers v. Virginia, 448 U.S. 555, 560 (1980);
Waller, 467 U.S. at 42 n. 2; Presley, 130 S.Ct. at 724 (“The public has a
right to be present whether or not any party has asserted the right.”)). Most
of the cases relied upon by Petitioner, however, do not concern application
of the existent habeas corpus procedural-default doctrine to a public trial
claim. The one case that does, Waller, undermines Petitioner’s position.
The footnote cited by Petitioner states that four of the five habeas
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petitioners had objected at trial, and that as to the petitioner that did not
object, the case was remanded to determine whether his public trial claim
was procedurally barred. Accordingly, the Waller court recognized that a
contemporaneous objection rule is an adequate ground for defaulting a
public trial claim. Moreover, the Court notes that under binding Sixth Circuit
precedent the procedural default doctrine applies to public trial claims. See
Bickham v. Winn, 888 F.3d 248, 251 (6th Cir. 2018); Johnson, 586 F.3d at
444 (6th Cir. 2009). Finally, the Court notes that the justification for closing
the proceeding here–rioting and ensuring the physical safety of members
of the public–was sufficient to overcome the public and media’s First
Amendment right to an open and public proceeding. The Court cannot
conceive of a more appropriate reason for closing a proceeding.
Because Petitioner failed to comply with a state procedural rule
constituting an adequate and independent state ground for the state court’s
decision, review of his public trial claim is barred unless he can
“demonstrate . . . that there was cause for him not to follow the procedural
rule and that he was actually prejudiced by the alleged constitutional error.”
Stone, 644 F.3d at 346 (quoting Maupin, 785 F.2d at 138).
“[C]ause for a procedural default must ordinarily turn on whether the
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prisoner can show that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner’s reply brief does
not attempt to assert cause to excuse his default, choosing instead to
argue that Respondent waived the defense or that the defense does not
apply to public trial claims. Accordingly, Petitioner has completely failed to
demonstrate cause to excuse the procedural default of his public trial claim.
Nevertheless, it should be noted that Petitioner’s supplemental pro se
brief filed in the Michigan Court of Appeals argued that his counsel was
ineffective for failing to object to the introduction of Deonte Smith’s
preliminary examination testimony at trial because it was elicited during the
closed pretrial proceeding. See Defendant-Appellant’s Standard 4 Brief, at
47 ff. When a petitioner claims ineffective assistance of counsel as cause
for a procedural default, the allegation of ineffectiveness is a separate
claim which must itself be exhausted in state court according to the normal
procedures. Edwards v. Carpenter, 529 U.S. 446, 452 (2000). The
argument made by Petitioner to the Michigan Court of Appeals regarding
his counsel’s failure to object to the introduction of Smith’s testimony is
distinct from a claim that counsel was ineffective for failing to object to the
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closure itself at the preliminary examination. According to Edwards, the
failure to exhaust the ineffectiveness claim will itself constitute a procedural
default of the cause argument and prevents a federal court from hearing it.
529 U.S. at 452. Petitioner never exhausted a claim that his trial counsel
was ineffective for failing to contemporaneously object to the closure of the
courtroom during the preliminary examination. Therefore, Petitioner may
not argue here that the ineffectiveness of his counsel constitutes cause to
excuse his procedural default.
In any event, ineffective assistance of counsel only suffices if the
deficient performance purporting to provide cause for the default would be
sufficient to merit its own independent constitutional claim. Edwards, 529
U.S. at 451. In order to prevail on a claim of ineffective assistance of
counsel, Petitioner “must show both that his counsel’s performance was
deficient and that the deficient performance prejudiced the defense.”
Hodges v. Colson, 711 F.3d 589, 613 (6th Cir. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). To show deficiency, Petitioner
must establish that “counsel made errors so serious that [he] was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Strickland, 466 U.S. at 687. Petitioner has failed to demonstrate that his
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counsel performed deficiently in failing to object to the closure of the
courtroom. Specifically, nothing in the record suggests that the court would
have been inclined to keep the courtroom open to the unruly mob present
had an objection been made by counsel. Rather, it is reasonable to
conclude that had defense counsel asserted Petitioner’s right to a public
proceeding and cited Waller, the court simply would have gone over the
Waller factors and ruled that closure was nonetheless warranted.
Where, as here, a petitioner fails to show cause, the Court need not
consider whether he has established prejudice. See Smith v. Murray, 477
U.S. 527, 533 (1986); Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).
Finally, Petitioner has not established that a fundamental
miscarriage of justice has occurred. The miscarriage of justice exception to
the procedural default rule requires a showing that a constitutional violation
probably resulted in the conviction of one who is actually innocent. Schlup
v. Delo, 513 U.S. 298, 326-27 (1995). “[A]ctual innocence means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 624 (1998) (citation omitted). “To be credible, [a claim of actual
innocence] requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific
-23-
evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.
Petitioner has made no such showing. This claim, therefore, is procedurally
defaulted.
B. Notice of Charges
Petitioner’s second claim asserts that he had insufficient notice of the
charges against him because the Felony Information failed to notify him of
the requirement that first-degree felony murder requires that the accused
acted with malice. Petitioner further asserts that, contrary to the decision of
the Court of Appeals rejecting this claim, a defective charging instrument
cannot be cured by the testimony offered at a preliminary examination or
by the language contained in a different count of the charging document.
As it did with Petitioner’s first claim, the Michigan Court of Appeals
found that review of this claim was limited to “plain error” because the claim
was not preserved in the trial court. Royster, 2015 WL 1069275, *7, 14.
Accordingly, for the same reasons outlined above, review of Petitioner’s
second claim is procedurally barred from review, and Petitioner has failed
to demonstrate cause to excuse the default.
Nevertheless, the claim is without merit. The Sixth Amendment to the
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United States Constitution provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be informed of the nature and cause of
the accusation.” U.S. Const., amend. VI. The Sixth Circuit has explained
this right, as applied to the States through the Fourteenth Amendment, as
follows:
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. In re
Ruffalo, 390 U.S. 544 (1968); Blake v. Morford, 563 F.2d 248
(6th Cir. 1977); Watson v. Jago, 558 F.2d 330, 338 (6th Cir.
1977). This requires that the offense be described with some
precision and certainty so as to apprise the accused of the
crime with which he stands charged. Such definiteness and
certainty are required as will enable a presumptively innocent
man to prepare for trial. Combs v. Tennessee, 530 F.2d [695,
698 (6th Cir. 1976)].
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
After finding that the claim was defaulted, the Michigan Court of
Appeals rejected Royster’s claim for the reasons it rejected Edwards’ claim:
The felony information coupled with the preliminary
examination was constitutionally sufficient to dispel the
ignorance that Edwards claims was plaguing him below. With
respect to felony murder, the information alleged that Edwards
“did while in the perpetration or attempted perpetration of a
larceny, murder one [sic] Cedell Leverett; contrary to MCL
750.316(1)(b),” punishable by [l]ife without parole.” This fairly
apprised Edwards of the nature of the offense as required by
court rule and statute. See MCR 6.112(D) (requiring the
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information to set forth the notice required by MCL 767.45, in
addition to the substance of the accusation and the applicable
penalty, among other things), and MCL 767.45(1)(a) (requiring
the information to contain “[t]he nature of the offense stated in
language which will fairly apprise the accused and the court of
the offense charged.”). Moreover, the facts presented at the
preliminary examination mirror those presented at trial. They
showed Edwards approaching the decedent in a crouched
position and holding a gun with the intent to rob him. “Malice
may . . . be inferred from the use of a deadly weapon.” Carines,
460 Mich. at 759. A gun is a dangerous weapon. See People v.
Parker, 417 Mich. 556, 565 (1983). Accordingly, the felony
information, framed with reference to this evidence, fairly
apprised Edwards of the requisite intent of this offense.
Edward’s argument that had he known that felony murder
requires a malicious intent, he would have testified that he
lacked malice when he shot the decedent, defies common
sense. Although the information did not expressly contain a
“malice” theory in support of the felony murder charge, the
information for the first-degree premeditated murder charge
explicitly alleged that Edwards acted “deliberately, with the
intent to kill . . . .” (Emphasis added.) Malice includes the intent
to kill. Smith, 478 Mich. at 318-319. Even with this notice,
Edwards elected not to testify.
In light of this, Edwards was fully apprised of the nature of
the charges against him and his ability to defend against them
was certainly not prejudiced.
* * *
Royster’s failure to object yet again leaves us looking for plain
error affecting substantial rights.
Royster, 2015 WL 1069275, *8, 14.
This decision was not unreasonable. Petitioner’s argument hinges on
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the premise that it is unreasonable to expect a lay person to understand
that a charging document that alleged the accused “did while in the
perpetration or attempted perpetration of a larceny, murder one [sic] Cedell
Leverett; contrary to MCL 750.316(1)(b),” required the prosecutor to prove
that he acted with malice. See, e.g., Dkt. 7, Petitioner’s Reply, at 24 (“No
fair-minded jurist would expect a non-lawyer criminal defendant to review a
charging instrument and somehow recognize that a critical element was
amiss from one of the charged offenses, then expect the same layman
criminal defendant to look for the omitted element amongst another
separate and distinct charge and carry that element over to the defective
charge.”).
The argument completely ignores the fact that at all times during
state court proceedings Petitioner was represented by presumptively
competent counsel. The Supreme Court has stated that “‘it may be
appropriate to presume that in most cases defense counsel routinely
explain the nature of the offense in sufficient detail to give the accused
notice of [the offense charged].” Marshall v. Lonberger, 459 U.S. 422, 436
(1983) (quoting Henderson v. Morgan, 426 U.S. 637, 647 (1976)). Here,
the requirement to prove malice to support a charge of first-degree felony
-27-
murder was established by the Michigan Supreme Court in 1980. See
People v. Aaron, 409 Mich. 672 (1980). Aside from the fact that the
charging document clearly accused Petitioner of murdering the victim
during the perpetration of a larceny (and murder requires malice), it is
appropriate to presume that Petitioner’s attorneys informed him of the
nature of the felony murder charge, including the malice element that had
been established in Michigan for over thirty years. Petitioner made no
allegation in the state courts–and he makes none here–that his counsel
failed to inform him of the nature of the charges against him.
For the same reasons, Petitioner has failed to demonstrate that he
was actually prejudiced by his counsel’s failure to object to the felony
information so as to excuse the procedural default of this claim. Petitioner’s
supplemental pro se brief filed in the Michigan Court of Appeals asserting
that counsel was ineffective for failing to object to the felony information
completely fails to develop this argument. See Defendant-Appellant’s
Standard 4 Brief, at 50.
Petitioner’s second claim is both procedurally barred from review and
without merit.
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C. Visits to the Crime Scene
Petitioner’s third claim raises his strongest challenge to the validity of
his conviction. Petitioner asserts that several of his constitutional rights
were violated during two trips to the crime scene. The first trip occurred
without Petitioner being present, and the second trip occurred outside both
Petitioner or his counsel’s presence. Petitioner alleges that both visits
violated his Sixth Amendment right to be personally present at all critical
stages of the proceedings, that the first visit denied his Sixth Amendment
right to face-to-face confrontation when one of the witnesses also attended
the crime scene visit, and that the second visit violated his Sixth
Amendment right to counsel during a critical stage of the proceedings and
violated his right to confront witnesses.
The Michigan Court of Appeals, discussing co-defendant Edwards’
similar claims first, rejected them as follows:
This brings us to the argument in Edwards’s principal
brief that the trial court twice improperly viewed the scene of
the crime and denied him the right to confront Gaca when she
accompanied the court to the scene. This issue first appears on
the record during the second day of trial when the court
indicated that the attorneys would accompany the court to the
crime scene. Apparently, this was originally planned to occur
without defendants present, for when defendants’ attorneys
subsequently indicated their clients’ desire to attend this
viewing, the court canceled the visit unless defendants
-29-
“change[d] their mind.” Subsequently, while delivering its
factual findings, the trial court noted that there “was a[n]
independent going to the scene of the crime with defense
counsel and the officer-in-charge, but we were met with Ms.
Gaca and to basically get the site of where she was and where
the cars were [sic].” The court added that it “also went to the
mall at approximately 10:30, 10:00, 10:30 p.m. at night to see
what the night light looked like. And as I indicated earlier, you
could see very well into the parking lot area. It was very well-lit.”
As a preliminary matter, Edwards has waived any claim
concerning both the court’s first viewing of the scene and
confronting the eyewitness there. His counsel was not only
present during those events, but counsel additionally agreed on
the two questions asked of Gaca, which pertained only to her
vantage point during the shooting. Even more, Edwards’s
counsel stipulated that Gaca’s testimony on this score be read
into the record. See People v. McPherson, 263 Mich. App. 124,
139 (2004) (a party waives appellate review when the conduct
of the party or his counsel “invit[es] the error and fails to
object”), citing People v. Carter, 462 Mich. 206, 215-216
(2000); see also People v. Riley, 465 Mich. 442, 448 (2001).
Regardless, even if the issue were not waived, our review
would be for outcome determinative error since Edwards failed
to object to either visit or the alleged testimony below. Carines,
460 Mich. at 764-765 (a claim of constitutional error requires a
contemporaneous objection to preserve it for appeal); see also
People v. Broadnax, 57 Mich. App. 621, 622-623 (1975)
(defendant could not raise this issue for first time on appeal
where, among other things, defense counsel participated in the
judge’s viewing of the scene and did not object).
With respect to the fact-finder’s viewing of a crime scene,
it is well established that when the fact-finder is the jury, the
viewing constitutes a critical stage of a criminal proceeding
which a criminal defendant has the right to attend with the
assistance of counsel. People v. Kurylczyk, 443 Mich. 289, 296
(1993) (opinion by GRIFFIN, J.); People v. Kent, 157 Mich.
-30-
App. 780, 793 (1987), citing People v. Mallory, 421 Mich. 229,
244-248 (1984). However, Edwards has not cited—nor have we
found—Michigan authority addressing the issue of a trial court’s
viewing of a crime scene in the absence of defendant or his
counsel. Several federal courts have held, however, that the
same principles apply. See, e.g., United States v. Walls, 443
F.2d 1220, 1222-1223 (6th Cir. 1971) (“The principles
applicable to a view by a judge sitting without a jury are not
substantially different [than those applicable to a jury]”); Payne
v. United States, 697 A.2d 1229, 1235 (D.C. 1997), citing Lillie
v. United States, 953 F.2d 1188, 1191 (10th Cir. 1992) (finding
the court’s viewing of the crime scene, although erroneous, was
not prejudicial). Moreover, while the Confrontation Clause
entitles a criminal defendant the right to a face-to-face meeting
with witnesses appearing before the trier of fact, the right is not
absolute, People v. Staffney, 187 Mich. App. 660, 663 (1990),
and is not as broad in scope as the right to be present at trial,
Mallory, 421 Mich. at 247.
Assuming the right to attend the viewing of the scene
extends to bench trials, we find no error requiring reversal. In
the first place, Edwards’s counsel was present for the initial
viewing by the court and Gaca. Moreover, counsel agreed to
the two questions asked of Gaca and stipulated to her
testimony. Those pertained to her location and whether she
moved during the shooting. Her testimony that she only moved
when the gunman ran towards the car, however, only damaged
her credibility and helped Edwards. On this point, the trial court
expressly found that Gaca stood 50 feet from the incident,
rather than the 20 feet she claimed at trial. In view of this,
Edwards’s failure to raise this issue below smacks of harboring
error as an appellate parachute. People v. Riley, 465 Mich.
442, 448 (2001). We will not tolerate such gamesmanship. But
even if there were error, it certainly was not outcome
determinative in light of the overwhelming evidence against
Edwards. This included the evidence of Edwards’s intent to rob
the decedent, the forensic evidence linking Edwards’s gun to
the shooting, and the tether and surveillance video placing
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Edwards at the scene.
Likewise, even if the court’s second viewing were
improper, it did not violate Edwards’s substantial rights. The
court indicated that its only purpose was to confirm the lighting
of the parking lot. That fact was of little consequence in light of
the other incriminating evidence, especially the surveillance
video, tether, and forensic evidence. Again, Edwards was not
prejudiced, and, not surprisingly, he makes no claim that he
was actually innocent or that this fundamentally affected the
proceedings in an adverse way.
Before moving on, we note that Edwards relies on United
States v. Cronic, 466 U.S. 648 (1984), among other cases, to
suggest that any error was structural and requires automatic
reversal. Edwards ignores, however, that “every federal circuit
court of appeals has stated, post-Cronic, that an absence of
counsel at a critical stage may, under some circumstances, be
reviewed for harmless error.” People v. Murphy, 481 Mich. 919,
923 (2008) (MARKMAN, J., concurring), citing, among others,
Satterwhite v. Texas, 486 U.S. 249 (1988), Ellis v. United
States, 313 F.3d 636, 643 (1st Cir. 2002) (absence of counsel
at critical stage would require presumption of prejudice only if
“pervasive in nature, permeating the entire proceeding”), and
United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998)
(applying harmless-error review when counsel was absent
during adverse testimony). Our facts fall squarely in line with
this authority and we see no compelling reason to deviate
today. Reversal is not warranted.
* * *
Like Edwards, Royster also challenges the trial court’s
second viewing of the crime scene, with the added wrinkle of an
alleged Confrontation Clause violation. This latter claim alleges
in essence that the trial court functioned as a witness during its
second viewing of the crime scene and should have been
subject to cross examination. Royster lodged no objection on
this novel theory (or on any other ground) below, and so we are
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looking for outcome determinative error that adversely affected
the proceedings or resulted in the conviction of an innocent
defendant. Carines, 460 Mich. at 774. We see none. As we said
before, a criminal defendant has the right to be present at every
stage of a proceeding and to confront the witnesses against
him. Kurylczyk, 445 Mich. at 296; Staffney, 187 Mich.App. at
663. At least on the former ground, the prosecution concedes
error, and indeed, we agree that the trial court’s second viewing
of the crime scene was not only erroneous, but imprudent. But
even assuming error on both grounds, Royster can’t get around
the mountain of incriminating evidence against him. On this
score, besides our prior analysis, we would highlight again
Royster’s vulgar encouragement to Edwards, which eradicates
any pretense of actual innocence especially considering that
the trial court’s second visit was to view the lighting in the
parking lot. That is not enough to reverse.
* * *
Regarding the crime scene visits, we conclude that
Royster waived any challenge to the first visit and to any
testimony Gaca offered where his counsel attended the visit
without objection and stipulated to the recitation of Gaca’s
testimony into the record. Riley, 465 Mich. at 448, citing, among
others, Carter, 462 Mich. at 215-216. But even if there were
error, Gaca’s comments at the scene only harmed her
credibility. Moreover, as we have repeatedly concluded, the
evidence of Royster’s guilt absent these visits was clear and he
is not actually innocent.
Royster, 2015 WL 1069275, *8-10, 14 (footnotes omitted).
The record shows that neither Petitioner nor Edwards objected to
either visit on the grounds now asserted in the habeas petition. The
prospect of a visit to the crime scene was first broached during the second
day of trial. Dkt. 6-11, at 114. The court indicated that “[w]e had a trip
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planned on side bar tomorrow at lunch. The plan is to go to the crime
scene just with the attorneys.” Id. Both defense attorneys initially objected
to the visit on the grounds that their clients requested to be present. Id. In
view of the objection, the court stated, “[t]hen we’re not going . . . If they
change their mind, they change their mind.” Id.
It is evident from the record that the defendants must have, in fact,
changed their minds because two days later the court indicated that the trip
had taken place. Dkt. 6-13, at 36. The court stated that it, along with the
prosecutor, both defense attorneys, police officers, and prosecution
witness Deborah Gaca, went the scene of the shooting. Id. The court
further stated that the parties had agreed to ask Gaca where she had been
positioned during the shooting, and whether she moved at any point:
[Prosecutor]: Yes, When asked where she stood, Ms. Gaca
positioned herself between the pillars. And the Court saw where
she was standing, so I don’t need to put that on the record.
When asked did you move at all while you were watching this
incident going on, she said no, the only time she moved was
when she saw the gunman running towards the car. She then
physically backed up against the pole in front of all of us and
showed us the position where she was after the shooting took
place. Is that a correct and fair assessment of the statements
made by Ms. Gaca?
[Counsel for Royster]: That is, your Honor.
[Counsel for Edwards]: Yes.
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[Prosecutor]: And I would stipulate to those statements. Would
you stipulate to those statements as well?
[Counsel for Royster]: Yes, that’s what she said at the time,
your Honor.
[Counsel for Edwards]: That’s correct.
Id. at 36-37.
The Court then indicated that it visited the scene on another
occasion, and it essentially asked the parties whether they had any
objection to the second visit:
The Court: Anything else? And I will say that the night before I,
myself, went out to just look at the lighting around the place. I
went at approximately 10:00 p.m. to see what it looked like, the
lighting was like at the mall from that area we were standing
yesterday. Anything else to put on the record regarding that?
[Prosecutor]: Not regarding that, your Honor.
THE COURT: Okay.
[Counsel for Royster]: No, your Honor.
[Counsel for Edwards]: No.
Id. at 37-38.
Despite the defendants’ initial demand to be personally present at
any visit, the record demonstrates that two visits took place, and when the
visits where discussed on the record, neither defendant objected on any
-35-
basis. Accordingly, when the Michigan Court of Appeals reviewed the
claims involving the visits, it found review was limited to the plain error
standard due to the failure of the defendants to object.
With respect to the first visit, the Michigan Court of Appeals stated:
“[W]e conclude that Royster waived any challenge to the first visit and to
any testimony Gaca offered where his counsel attended the visit without
objection and stipulated to the recitation of Gaca’s testimony into the
record. Riley, 465 Mich at 448, citing, among others, Carter, 462 Mich at
215-216.” Royster, 2015 WL 1069275, *14. With respect to the second
visit, the Michigan Court of Appeals found: “Royster lodged no objection on
[Confrontation Clause grounds] (or on any other ground) below, and so we
are looking for outcome determinative error that adversely affected the
proceedings or resulted in the conviction of an innocent defendant.
Carines, 460 Mich. at 774.” Royster, 2015 WL 1069275, *14 (footnotes
omitted). The Court of Appeals did go on to note in the alternative that it
agreed with the prosecutor that the second visit was erroneous, but it found
that the “mountain of incriminating evidence against” Petitioner “eradicates
any pretense of actual innocence.” Id.
Accordingly, as with Petitioner’s previous claims, this claim is also
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procedurally defaulted. The decision of the Court of Appeals indicates that
it actually enforced Michigan’s contemporaneous objection rule by noting
Petitioner’s failure to assert his arguments in the trial court, and as
discussed above, the rule is an adequate and independent state ground
foreclosing review of Petitioner’s constitutional claim.
The Court notes the importance of application of the procedural
default rule to this claim. With respect two of Petitioner’s legal arguments,
the claims might have been resolved on the basis that there was otherwise
strong evidence of Petitioner’s guilt, and the limited information gleaned at
the visits was not overly prejudicial to his defense. With respect to
Petitioner’s right to be personally present, the right “is not absolute, but
exists only when his presence has a relation, reasonably substantial, to the
fullness of his opportunity to defend against the charge.” United States v.
Henderson, 626 F.3d 326, 343 (6th Cir. 2010) (quotation marks omitted)).
“In other words, the defendant’s presence is not guaranteed when it would
be useless, but only to the extent that a fair and just hearing would be
thwarted by his absence.” Id. (quotation marks omitted). Petitioner has not
indicated how his personal presence at either visit would have been useful
and was required for a fair and just hearing.
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Similarly with respect to the Confrontation Clause claim, any violation
is subject to harmless error analysis. See Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986)). And here, Petitioner has not shown how his inability
to cross-examine or confront the trial court or Gaca regarding what they
saw or said on either visit “had a substantial and injurious effect or
influence in determining the [trial court’s] verdict.” Fry v. Pliler, 551 U.S.
112, 116 (2007).
It is reasonably debatable, however, whether the same analysis
applies to Petitioner’s right-to-counsel claim. The Supreme Court has
clearly established that the complete denial of counsel during a critical
stage of a judicial proceeding mandates a presumption of prejudice. United
States v. Cronic, 466 U.S. 648, 659 (1984). The existence of certain
structural defects in a trial, such as the deprivation of the right to counsel,
requires automatic reversal of the conviction because it infects the entire
trial process. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). In
Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court held that the right
to counsel is “‘so basic to a fair trial that [its] infraction can never be treated
as harmless error.’” Id. at 88, quoting Chapman v. California, 386 U.S. 18,
23 n.8 (1967). Similarly, the Sixth Circuit, citing Cronic, held that
-38-
“[h]armless error analysis is never appropriate when a criminal defendant is
denied counsel during a critical stage of his trial, because prejudice is
always presumed in such circumstances.” Hereford v. Warren, 536 F.3d
523, 541 (6th Cir. 2008), citing Cronic, 466 U.S. at 658. The Michigan
Supreme Court considers a fact-finder’s viewing of the crime scene to be a
critical stage of the proceeding. See, e.g., People v. Mallory, 421 Mich.
229, 247 (1984). Thus, counsel’s absence at the trial court’s second visit
arguably would have required automatic reversal of Petitioner’s convictions
had a contemporaneous objection been made, and had the trial court then
failed to correct the error.
On the other hand, Respondent asserts that the automatic-reversal
rule does not apply to the unobjected to violation here. Support exists for
this assertion a well. In Satterwhite v. Texas, 486 U.S. 249, 257 (1988), the
Supreme Court held that the automatic reversal rule for a denial of counsel
during a critical stage does not apply to all cases. The Court stated that
even where counsel is absent during a critical stage, harmless error
analysis is nevertheless appropriate “where the evil caused by a Sixth
Amendment violation is limited to the erroneous admission of particular
evidence at trial.” Id. Here, not unlike Satterwhite, the absence of counsel
-39-
was limited to the admission of the trial court’s observations regarding the
lighting conditions at the scene of the crime, an issue that did not have a
substantial or injurious impact on the result of the trial.
Furthermore, in Woods v. Donald, 135 S. Ct. 1372, 1375 (2015), the
habeas petitioner claimed that he was entitled to habeas relief without a
need for demonstrating prejudice where he was denied his right to counsel
when witnesses testified at his trial regarding his co-defendant’s guilt. The
Supreme Court held that the Sixth Circuit erroneously granted relief
because there was no clearly established Supreme Court law holding that
the reception of evidence regarding co-defendants is a critical stage of the
proceedings against the petitioner. Id. at 1377. The Court stated, “Cronic
applies in ‘circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.’” Id. at 1378.
Here, the trial court’s second view of the crime scene was performed “just
[to] look at the lighting around the place.” Dkt. 6-13, at 37-38. The visit was
inconsequential enough that neither defense counsel opted to put anything
on the record, and the trial court’s findings of fact after trial did not rely on
the lighting he observed as a reason to find Petitioner guilty of the offense.3
3
In fact, Gaca testified that she was about twenty feet away from the victim’s car at the
time of the shooting, but after the crime scene visit, the Court determined that the
distance was “more like fifty feet,” a finding that benefitted the defense. Dkt. 6-14. at 55.
-40-
Under these circumstances, it would be reasonable to conclude that the
trial court’s second crime scene visit was not a critical stage of the
proceedings requiring automatic reversal had an objection been made.
All of this is to say why the application of the contemporaneous
objection rule to this claim is especially appropriate here. If,
notwithstanding Satterwhite and Woods, the failure to have counsel
present at the second visit was a structural error creating the possibility of
automatic reversal, then the error could have been easily remedied by a
timely objection after the trial court asked the parties if they had anything
they wished to place on the record. Had an objection on the right-tocounsel grounds been made, the trial court could have simply disregarded
any observations made during the second visit, thereby curing any error.
Granting relief in the absence of an objection would, in effect, create a
windfall for counsel’s failure to voice an objection when she was invited to
do so.
Accordingly, review of Petitioner’s third claim is procedurally barred
by his failure to object to the visits to the crime scene absent a showing of
cause and prejudice. And as was the case with his previous claims,
Petitioner failed to exhaust a claim that his counsel was ineffective for
failing to object to the visits. As such, he cannot demonstrate cause to
-41-
excuse his procedural default. Edwards, 529 U.S. at 452. In any event,
Petitioner’s counsel was not ineffective for failing to object to the crime
scene visit. It appears from the record that counsel wanted the visit to take
place, and the observations made there benefitted him by placing Gaca
further away from the scene than she estimated in her testimony.
Petitioner has therefore failed to demonstrate entitlement to habeas relief
with respect to his third claim.
D. Ineffective Assistance of Counsel
Petitioner’s fourth claim asserts that his trial counsel failed to
adequately conduct a pretrial investigation regarding prosecution witness
Deonte Smith. Petitioner asserts that neither his nor his co-defendant’s
attorneys ever interviewed Smith prior to the preliminary examination or
trial. Petitioner obtained a purported affidavit from Smith during his direct
appeal in which Smith claims that his trial testimony was false. Specifically,
the affidavit asserts that Smith never heard Edwards brag about being
involved in the murder or that the murder occurred during the perpetration
of a robbery. The document further claims that Smith refused to testify at
trial because he knew that it would be in the public presence and people
would know that it was false.
Royster did not raise this particular allegation of ineffective
-42-
assistance of counsel in the Michigan Court of Appeals. Co-defendant
Edwards raised this claim, and the state appellate court rejected it on the
merits, essentially finding that Edwards was not prejudiced because he had
not shown how a pretrial investigation would have resulted in Smith
recanting his preliminary examination testimony and because the purported
affidavit was otherwise not credible. See Royster, 2015 WL 1069275, *11.
To establish ineffective assistance of counsel, a defendant must
show both that: (1) counsel’s performance was deficient, i.e., “that
counsel’s representation fell below an objective standard of
reasonableness”; and (2) the deficient performance resulted in prejudice to
the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “[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 considered sound trial strategy.’” Id. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for
prejudice is whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
Here, the record makes clear that Petitioner suffered no prejudice by
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his counsel’s alleged failure to interview Smith because the trial court did
not consider Smith’s testimony at all in its findings of fact regarding
Petitioner:
Deonte Smith testified through a prior - well he didn’t testify, but
his testimony was introduced through prior recorded testimony.
The Court is indicating that as part of its ruling in terms of any
statements that Deonte Smith used regarding what he heard
defendant Edwards say, the Court is not using against
defendant Royster.
Dkt. 6-14, at 56.
Accordingly, even assuming this claim was exhausted by Petitioner
during his direct appeal, Petitioner has failed to demonstrate a reasonable
probability that the result of his trial would have been more favorable had
his counsel interviewed Smith prior to trial. Simply stated, the finder of fact
did not consider Smith’s prior testimony against Petitioner, and so further
impeachment of Smith would not have benefitted his defense.
Indeed, the case against Petitioner was quite strong, and it rested on
the testimony of two other witnesses. Deborah Gaca, an employee at
Eastland Mall, saw Petitioner standing outside the driver’s side door and
yell to Edwards to “pop him, pop that motherfucker good,” just before she
saw Edwards shoot the victim. She then saw Petitioner drive Edwards
away from the scene. Devante Smith, Deonte Smith’s brother, testified that
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he was present at the mall with Petitioner, Edwards, and Jaisaun Holt on
the date of the shooting. He identified Petitioner on videotape footage
taken from the mall’s security cameras. Devante had split up with the
others while shopping, and when he later looked by himself for the car they
arrived in–the one associated with the shooting–it was gone. The trial court
did not consider Deonte Smith’s testimony in its finding that Petitioner was
guilty of first degree felony-murder as an aider and abettor. Dkt. 6-14, at
62-63.
Accordingly, Petitioner has failed to show that he was prejudiced by
his counsel’s alleged failure to further investigate or interview Deonte Smith
prior to trial.
As all of Petitioner’s claims are procedurally barred from review or
without merit, the petition will be denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability issued. A certificate of
appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Courts must either issue a certificate of appealability indicating which
issues satisfy the required showing or provide reasons why such a
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certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b);
In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that
reasonable jurists could debate whether (or, for that matter, 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.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and
citations omitted). Here, jurists of reason could debate the Court’s
conclusion that Petitioner is not entitled to habeas relief with respect to his
third claim. A reasonable jurist might dispute this Court’s conclusion that
the claim is procedurally defaulted and whether the alleged violation of
Petitioner’s right to counsel at the second crime scene visit requires
automatic reversal.
The Court finds that the resolution of Petitioner’s remaining claims is
not reasonably debatable, so a certificate of appealability will be denied
with respect to them.
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for
a writ of habeas corpus, 2) GRANTS a certificate of appealability with
respect to Petitioner’s third claim, and 3) DENIES a certificate of
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appealability with respect to his remaining claims.
SO ORDERED.
Dated: July 17, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 17, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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