Smith v. Hoffner
Filing
16
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis . Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARYL EDWARD SMITH,
Petitioner,
v.
Case Number 2:17-CV-13837
HONORABLE GERSHWIN A DRAIN
UNITED STATES DISTRICT JUDGE
BONITA HOFFNER,
Respondent.
_____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
PAUPERIS
Daryl Edward Smith, (“petitioner”), confined at the Carson City
Correctional Facility in Carson City, Michigan, filed a petition for writ of habeas
corpus with this Court pursuant to 28 U.S.C. § 2254, challenging his conviction of
possession with intent to deliver 450 grams or more, but less than 1,000 grams of
cocaine, MICH. COMP. LAWS § 333.7401(2)(a)(ii). For the reasons that follow,
the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was convicted following a jury trial in the Genesee County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan
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Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
The search and seizure in this case was based on a multijurisdictional
drug enforcement unit’s, the Flint Area Narcotics Group (FANG),
investigating an anonymous tip. Michigan State Police Lieutenant
David Rampy testified that he had received a telephone tip on August
14, 2009 with respect to a black male, bald with glasses, driving a
black possibly Ford Fusion traveling northbound on I–75, with
cocaine in the vehicle. Rampy described that twice before August 14,
2009, at two-week intervals, he had received identical tips; FANG
members undertook unsuccessful surveillance activities on each prior
occasion.
William Renye, a Grand Blanc Township police officer and member
of FANG testified that on the day of the stop, he had received
information about an anonymous tip of a black Ford vehicle driving
northbound I–75 that was occupied by a black male, having a bald
head in his 40’s wearing glasses that would be in route to the Flint
area with a lot of cocaine. Kenneth Shingleton testified that he worked
as a Michigan State Police trooper and had assisted FANG in a traffic
stop of defendant. He had heard the radio traffic regarding the
anonymous tip and that another officer had observed a vehicle
matching the tip description traveling northbound on I–75 and being
driven by a black male with glasses and a bald head. Trooper
Shingleton observed the suspect vehicle being driven at 80 miles per
hour in a 70–mile–per–hour zone and saw defendant’s car twice
change lanes without signaling. Shingleton requested by radio that a
marked police car stop the suspect car. Rampy also testified that he
saw the car and driver matching the tip’s description heading north on
I–75 and “paced” it at approximately 75 miles per hour in a 70–mile–
per–hour speed zone.
Michigan State Police trooper Steven Skrbec testified that he stopped
defendant’s car on August 14, 2009, on the basis of FANG team
member reports that the car had improperly changed lanes and was
speeding. Skrbec testified that defendant cooperatively provided his
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driver’s license, but would not consent to a search of the car. Grand
Blanc Township police sergeant Matthew Simpson testified regarding
his expertise as a canine officer searching for drugs and that he went
to the a [sic] traffic stop of defendant after hearing a radio call for
canine assistance. Simpson testified it took him 10 minutes to arrive
with his dog after hearing the radio request. Shingleton testified it
took between 15 and 20 minutes from initiating the traffic stop to the
arrival of the police dog; Renye thought the drug dog arrived around
15 minutes after the beginning of the stop; Rampy estimated that it
took between 20 and 25 minutes for the canine officer to arrive.
Defendant estimated that around 10 minutes elapsed between the
commencement of the traffic stop and the call for canine assistance,
and then another 10 minutes elapsed before the canine officer arrived.
Simpson testified his dog circled the black Fusion and on reaching the
driver’s side of the car the dog gave a positive alert, biting the handle
on the rear door. Simpson testified this action signaled the presence of
marijuana, methamphetamines, heroin or cocaine in that area of the
car. Shingleton testified that within one to three minutes the police
dog began biting and scratching at a driver’s-side door handle, which
prompted officers to search the black Fusion. On opening the trunk,
Shingleton observed a yellow plastic bag near the spare tire. Flint
Police officer Scott Watson assisted Shingleton and also described
finding yellow plastic baggie containing white powder in the trunk of
the Fusion.
Defendant testified that Watson told him that the police pulled him
over because he had a Detroit license plate and that “guys come from
Detroit all the time carrying large amounts of cocaine.” Defendant
also testified that when he asked why he was stopped, Renye said that
“we been following you since Grand Blanc, so speeding, changing
lanes, pick something.”
The trial court denied the motion to suppress, finding that the police
had articulable suspicion that criminal activity was afoot which
justified the stop. Specifically, that the police corroborated the tip
information that (1) a black Ford Fusion auto would be travelling (2)
northbound on (3) I–75 carrying cocaine and driven by (4) a black
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male (5) who was bald and (6) wearing glasses (7) on August 14,
2009. The court further determined that the time elapsed from the
traffic stop to conducting the search with the dog was not
unreasonable.
***
After other officers found the apparent cocaine inside the black
Fusion, Officer Renye arrested defendant and advised him of his
Miranda rights. Renye testified that defendant acknowledged his
rights, waived them and stated that “the cocaine [in the black Fusion]
was his”; the cocaine and packaging weighed 501 grams; he bought
the cocaine in Detroit and paid $12,000 for it; and that he intended to
sell the cocaine for $16,000 in Flint.
At trial, an expert in latent fingerprint print examination testified that
a latent fingerprint on a Ziploc bag recovered from the black Fusion’s
trunk and concluded that the print matched defendant’s right middle
fingerprint. An expert chemical analyst testified that the 490.9 grams
of the substance he tested contained cocaine. Officer Watson testified
that in his training and experience the 490–gram quantity of cocaine
that was seized was meant for delivery.
People v. Smith, No. 305437, 2013 WL 5857567, at *1–2, 8 (Mich. Ct. App. Oct.
31, 2013) (internal footnote omitted). Petitioner’s conviction was affirmed on
appeal. Id., lv. den. 496 Mich. 857, 847 N.W. 2d 618 (2014).
Petitioner filed a post-conviction motion for relief from judgment, which the
trial court denied. People v. Smith, No. 10-027124-FH (Genesee Cty.Cir.Ct., Feb.
16, 2016). The Michigan appellate courts denied petitioner leave to appeal. People
v. Smith, No. 331910 (Mich.Ct.App. July 25, 2016); lv. den. 500 Mich. 947, 890
N.W. 2d 357 (2017).
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Petitioner seeks a writ of habeas corpus on the following grounds:
I.
The Michigan Supreme Court erred when it ruled that the trial court did
not commit reversible error when it denied the Defendant’s motion for
relief from judgment pursuant to MCR 6.508(D)(3)(a) and (b), where
Defendant’s claims were not procedurally barred, where Defendant’s
claim of ineffective assistance of counsel was sufficient to establish both
cause and prejudice, and where Defendant’s claims were clearly
meritorious.
II.
The Petitioner was deprived of his liberty and the effective assistance of
counsel where counsel was absent during most of the pretrial period
which is a critical stage of the trial proceedings and failed to subject the
prosecution’s case to meaningful adversarial testing in violation of the
Sixth Amendment and caused the adversarial process to become tainted
and prejudiced, where the errors and deficiencies of counsel individually
and cumulatively prejudiced Mr. Smith.
III.
The trial court abused its discretion and violated the Petitioner’s
Fourteenth Amendment right to due process of law and a fair trial, where
the trial court abused its discretion when it denied Petitioner’s motion for
a continuance where Petitioner filed a motion for self-representation on
the morning of trial, and required additional time to prepare his defense
in light of counsel’s ineffectiveness.
IV.
The Petitioner was denied his Fourteenth Amendment constitutional right
to due process of law where the trial clerk committed fraud upon the
court where he/she concealed all knowledge and records of Petitioner’s
April 12, 2011 jury trial proceedings, created a false register of actions
sheet, and prohibited the Petitioner and his appellate counsel from being
able to effectuate a full and adequate direct appeal of right which
severely prejudiced the Petitioner.
V.
Mr. Smith’s right of self-representation was violated because he was not
present for the objections, arguments or “arrangements” that were made
concerning the improper restraints.
VI.
The trial court violated Mr. Smith’s state and federal constitutional right
to due process of law where he was shackled during trial. A new trial is
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warranted because at least one juror was aware of the restraints and the
error is inherently prejudicial.
VII. The trial court erred in denying Mr. Smith’s motion to suppress where
the investigatory detention was in violation of the Fourth Amendment
and where the seizure and subsequent search led to discovery of key
prosecution evidence.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
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 proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when
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“a state court decision unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11. “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is
required to show that the state court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 103. A habeas
petitioner should be denied relief as long as it is within the “realm of possibility”
that fairminded jurists could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
Petitioner’s second, third, and fourth claims were denied in part by the trial
court on post-conviction review pursuant to M.C.R. 6.508(D)(3), on the ground
that petitioner failed to show cause and prejudice for not raising these claims on his
direct appeal. Although the state court judge mentioned M.C.R. 6.508(D)(3), the
AEDPA’s deferential standard of review also applies to the judge’s opinion
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because he alternatively rejected the claims on the merits. See Moritz v. Lafler, 525
F. App’x. 277, 284 (6th Cir. 2013). 1
III.DISCUSSION
A. Claim # 1. The post-conviction infirmities claim.
Petitioner first argues that the Michigan Supreme Court erred in applying the
procedural bar contained in M.C.R. 6.508(D)(3) to deny his post-conviction
appeal. Petitioner argues that the court erred in procedurally defaulting his second,
third, and fourth claims because his appellate counsel’s ineffectiveness in failing to
raise his second, third, and fourth claims on his appeal of right established cause to
excuse petitioner’s failure to raise these claims.
Respondent argues that these claims were not exhausted because he did not raise
these individual claims in the headings or statement of questions that he raised in
his post-conviction appellate brief before the Michigan appellate courts.
Petitioner, however, raised these substantive claims in the body of his appellate
court briefs. This would be sufficient to present these claims to the Michigan
appellate courts for exhaustion purposes. See e.g. Wagner v. Smith, 581 F.3d 410,
415-16 (6th Cir. 2009). Respondent also argues that these claims are procedurally
defaulted because petitioner failed to show cause and prejudice, as required by
M.C.R. 6.508(D)(3), for failing to raise these claims on his appeal of right.
“[F]ederal courts are not required to address a procedural-default issue before
deciding against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215
(6th Cir.2003)(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial
economy might counsel giving the [other] question priority, for example, if it were
easily resolvable against the habeas petitioner, whereas the procedural-bar issue
involved complicated issues of state law.” Lambrix, 520 U.S. at 525. This Court
believes that it would be easier to address the merits of the claims in this case.
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Petitioner’s claim that the Michigan courts wrongfully denied him postconviction relief is non-cognizable. This Court notes that “[t]he Sixth Circuit
consistently held that errors in post-conviction proceedings are outside the scope of
federal habeas corpus review.” Cress v. Palmer, 484 F. 3d 844, 853 (6th Cir.
2007). Thus, a federal habeas corpus petition cannot be used to mount a challenge
to a state’s scheme of post-conviction relief. See Greer v. Mitchell, 264 F. 3d 663,
681 (6th Cir. 2001). The reason for this is that the states have no constitutional
obligation to provide post-conviction remedies. Id. (citing to Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987)). Challenges to state collateral post-conviction
proceedings “cannot be brought under the federal habeas corpus provision, 28
U.S.C. § 2254,” because “‘the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and ... the traditional function of the writ
is to secure release from illegal custody.’” Kirby v. Dutton, 794 F. 2d 245, 246 (6th
Cir. 1986)(quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
“A due process claim related to collateral post-conviction proceedings, even
if resolved in a petitioner’s favor, would not ‘result [in] ... release or a reduction in
... time to be served or in any other way affect his detention because we would not
be reviewing any matter directly pertaining to his detention.’” Cress, 484 F. 3d at
853 (quoting Kirby, 794 F. 2d at 247). Thus, the “‘scope of the writ’” does not
encompass a “‘second tier of complaints about deficiencies in state post-conviction
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proceedings.’” Cress, 484 F. 3d at 853 (quoting Kirby, 794 F. 2d at 248). “[T]he
writ is not the proper means to challenge collateral matters as opposed to the
underlying state conviction giving rise to the prisoner’s incarceration.” Id. (internal
quotations omitted).
To the extent that petitioner is arguing that appellate counsel was ineffective
for failing to raise his second, third, and fourth claims on his appeal of right, he
would not be entitled to relief. The Sixth Amendment guarantees a defendant the
right to the effective assistance of counsel on the first appeal by right. Evitts v.
Lucey, 469 U.S. 387, 396-397 (1985). However, court appointed counsel does not
have a constitutional duty to raise every nonfrivolous issue requested by a
defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983).
As discussed infra,
petitioner’s second, third and fourth claims are meritless. “[A]ppellate counsel
cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’”
Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010)(quoting Greer v.
Mitchell, 264 F.3d at 676). Because none of petitioner’s underlying claims can be
shown to be meritorious, appellate counsel was not ineffective in her handling of
petitioner’s direct appeal.
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B. Claim # 2. The ineffective assistance of trial counsel claim.
In his second claim, petitioner argues that he was constructively denied the
effective assistance of trial counsel during critical stages of the criminal
proceedings. Petitioner contends that his first trial counsel constructively denied
him his right to counsel by failing to visit him in jail during the pre-trial period.
Petitioner also claims that he was denied counsel at a critical stage of the criminal
proceedings when the prosecutor was permitted to amend his witness list to add a
second fingerprint expert. Petitioner further argues that he was constructively
denied the assistance of trial counsel by his first trial counsel’s failure to perfect
petitioner’s interlocutory appeal from the denial of the pre-trial motion to suppress
evidence and failing to keep petitioner apprised about the status of the appeal.
A defendant is required to satisfy a two prong test to establish the denial of
the effective assistance of counsel. First, the defendant must show that counsel’s
performance was so deficient that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). The defendant must overcome a strong presumption that his
or her attorney’s conduct fell within the wide range of reasonable professional
assistance. Id. Stated differently, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689.
Second, the defendant must show that such
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performance prejudiced his or her defense. Id. To demonstrate prejudice, the
defendant must establish that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
Strickland places the burden on the
defendant who raises a claim of ineffective assistance of counsel, and not the state,
to show a reasonable probability that the result of the proceeding would have been
different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal
court believes the state court’s determination’ under the Strickland standard ‘was
incorrect but whether that determination was unreasonable-a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the state
court’s application of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell below Strickland’s
standard.” Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland
standard is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at
123 (citing Yarborough v. Alvarado, 541 U.S. at 664).
Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland
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claim brought by a habeas petitioner. Id. This means that on habeas review of a
state court conviction, “a state court must be granted a deference and latitude that
are not in operation when the case involves review under the Strickland standard
itself.” Harrington, 562 U.S. at 101. “Surmounting Strickland's high bar is never
an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
The U.S. 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). The U.S. Supreme
Court has routinely found constitutional error without any specific showing of
prejudice to a defendant when counsel is either totally absent, or prevented from
assisting the accused during a critical stage of the proceedings. Cronic, 466 U.S. at
659, n.25; United States v. Minsky, 963 F. 2d 870, 874 (6th Cir. 1992).
In addition, where defense counsel entirely fails to subject the prosecution’s
case to “meaningful adversarial testing,” there has been a constructive denial of
counsel, and a defendant need not make a showing of actual prejudice to establish
ineffective assistance of counsel. Moss v. Hofbauer, 286 F. 3d 851, 860 (6th Cir.
2002)(quoting Cronic, 466 U.S. at 659). However, in order for a presumption of
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prejudice to arise based on an attorney’s failure to test the prosecutor’s case, so that
reversal based on ineffective assistance of counsel is warranted without any inquiry
into prejudice, the attorney’s failure to test the prosecutor’s case “must be
complete.” Bell v. Cone, 535 U.S. 685, 697 (2002).
Petitioner’s original trial counsel, Sheldon Siegel, was appointed to represent
petitioner and represented him at the preliminary examination on May 26, 2010
and June 14, 2010. Mr. Siegel also represented petitioner at an evidentiary hearing
on counsel’s motion to suppress the evidence being the result of an illegal stop on
August 13, 19, 25, and 27, 2010. The judge denied the motion to suppress on
September 9, 2010. Mr. Siegel attempted to file an interlocutory appeal but the
appeal was dismissed without prejudice on November 9, 2010 because counsel’s
pleadings were defective. People v. Smith, No. 300461 (Mich.Ct.App. Nov. 9,
2010).
Petitioner claims that Mr. Siegel did not visit him in jail between October 3,
2010 and April 11, 2011, and failed to keep him apprised of the status of the
interlocutory appeal. Petitioner claims that Mr. Siegel visited him in jail on April
11, 2011 and gave him false information as to why the interlocutory appeal had
been dismissed.
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On April 12, 2011, Mr. Siegel attempted to take petitioner to trial. Petitioner
was not ready for trial because Mr. Siegel failed to inform him ahead of time of the
trial date. Petitioner did not have clothes to wear for trial so Mr. Siegel retrieved a
pair of soiled pants and a soiled sweater from his car for petitioner to wear at trial.
After voir dire was conducted, petitioner moved to postpone the trial on the ground
that Mr. Siegel failed to inform him of the denial of the interlocutory appeal, failed
to subpoena witnesses, failed to file a motion to challenge the fingerprint evidence,
failed to obtain independent testing of the seized cocaine, failed to provide
petitioner with the case law, or failed to notify petitioner’s family of the trial date.
(Tr. 4/12/11, pp. 44-49). The judge ultimately agreed to postpone the trial until
April 20, 2011. (Id., p. at 51).
On April 14, 2011, petitioner filed a motion to dismiss counsel. On May 2,
2011, the court heard the motion and agreed to dismiss Mr. Siegel as trial counsel.
At the same hearing, the prosecutor moved to amend the information to add Gary
Ginther of the Michigan State Police as a fingerprint expert, which was granted.
Petitioner on his own objected to the amendment of the information. (Tr. 5/2/11,
pp. 2-8).
On May 5, 2011, the trial judge appointed David Clark as replacement trial
counsel and appointed Neil Szabo to re-file the interlocutory appeal.
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Petitioner initially argues that his first trial counsel’s failure to visit with
petitioner in private in the county jail during the pre-trial period between October
3, 2010 and April 11, 2011 amounted to a per se denial of the effective assistance
of counsel.
In Mitchell v. Mason, 325 F. 3d 732 (6th Cir. 2003), the Sixth Circuit held
that the Supreme Court’s holding in Cronic required a presumption of prejudice be
applied to the petitioner’s ineffective assistance claims.
The Sixth Circuit’s
conclusion was based on the fact that during the entire course of defense counsel’s
seven month representation, he met with the petitioner for only six minutes
immediately prior to trial, as well as the fact that in the month prior to trial counsel
had been suspended from the practice of law, and therefore did not appear at
motion hearings or do any other work on the case. See Id. at 742-44.
Petitioner’s case is distinguishable from the petitioner’s circumstances in
Mitchell. Unlike in Mitchell, petitioner’s counsel was not suspended from the
practice of law at any point during his representation of petitioner. Petitioner does
not allege that counsel failed to meet with him at all, only that counsel failed to
meet with him privately at the jail during a portion of the pre-trial period to discuss
his case. Petitioner concedes that counsel did meet with him at the county jail
prior to the evidentiary hearing and prior to the original trial date.
Counsel
provided a vigorous defense for petitioner at the preliminary examination and at
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the evidentiary hearing. The Sixth Circuit in Mitchell itself distinguished that case
from the circumstances present in petitioner’s case, observing that if the issue had
been only the failure of counsel to meet with petitioner and to prepare in the thirtyday period prior to trial, “it might have been proper to apply the Strickland
analysis, for as Bell notes, counsel’s failure in particular instances is evaluated
under Strickland.” Mitchell, 325 F. 3d at 742.
The Mitchell court also distinguished the Sixth Circuit’s prior decision in
Dick v. Scroggy, 882 F. 2d 192 (6th Cir.1989). See Mitchell, 352 F. 3d at 744. In
Dick, the Sixth Circuit applied the Strickland test to a claim based on defense
counsel’s failure to consult with the habeas petitioner at all except for a 30-45
minute meeting the day before trial. See Dick, 882 F. 2d at 197. “In short, Mitchell
is a case involving unique facts-a complete failure to consult combined with
counsel’s suspension from the practice of law immediately prior to trial-and its
holding is cabined by those unique facts.” See Willis v. Lafler, No. 05-74885, 2007
WL 3121542, * 29 (E.D. Mich. Oct. 24, 2007)(citing Johnson v. Bradshaw, 205 F.
App’x. 426, 432-33 (6th Cir.2007)).
The Sixth Circuit, in fact, has applied the Strickland standard in evaluating
and rejecting an ineffective assistance of counsel claim based upon counsel’s
failure to consult with a habeas petitioner. See Bowling v. Parker, 344 F. 3d 487,
506 (6th Cir. 2003)(finding no ineffective assistance of counsel even though
17
attorneys allegedly met with defendant for less than one hour in preparing defense
because defendant failed to show prejudice, or how additional consultation with his
attorneys could have altered outcome of trial).
Accordingly, petitioner’s
ineffective assistance of counsel claim is subject to the Strickland standard and he
would be required to show actual prejudice in order to obtain habeas relief.
Petitioner fails to allege or show prejudice from Mr. Siegel’s failure to visit
him in jail during a portion of the pre-trial period. Accordingly, he is not entitled
to relief on his claim.
Petitioner also complains that he was denied the assistance of counsel during
a critical stage of the proceedings when the prosecutor moved to amend the witness
list to add Gary Ginther, a second fingerprint expert, as a witness. Petitioner
argues that the prosecutor moved to add Mr. Ginther as a witness at the hearing on
May 2, 2011, only after the trial judge discharged Mr. Siegel from representing
petitioner.
The trial judge rejected petitioner’s claim on post-conviction review, in part
on the ground that although the judge had orally agreed to remove Mr. Siegel as
counsel, courts in Michigan speak through their written orders not their oral
pronouncements. Mr. Siegel was not formally removed as counsel until May 5,
2011 when the judge appointed new counsel. The judge concluded that petitioner
was still represented by counsel at the time that the prosecutor moved to amend the
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witness list. The judge further concluded that petitioner was not prejudiced by the
endorsement of Ginther as a witness because Ginther testified at trial that the
fingerprints taken from the outside yellow bag did not match petitioner’s
fingerprints. People v. Smith, No. 10-027124-FH, * 4-5 (Genesee Cty.Cir.Ct., Feb.
16, 2016).
In Michigan, a court generally speaks through its written judgments and
orders rather than oral statements or written opinions. People v. Jones, 203 Mich.
App. 74, 82, 512 N.W.2d 26, 30 (1993). Although the judge at the May 2, 2011
hearing orally agreed to replace Mr. Siegel, the judge did not formally do so until
he issued a written order substituting counsel on May 5, 2011. At the time that the
prosecution moved for the amendment of the witness list to add Mr. Ginther,
petitioner was still formally represented by Mr. Siegel.
Moreover, assuming that petitioner was no longer represented by Mr. Siegel
when the prosecutor moved to amend the witness list to add Mr. Ginther as a
witness, petitioner would not be entitled to automatic reversal of his conviction. In
“cases where the evil caused by a Sixth Amendment violation is limited to the
erroneous admission of particular evidence at trial[,]” a harmless error analysis
applies. See Mitzel v. Tate, 267 F. 3d 524, 534 (6th Cir. 2001)(quoting Satterwhite
v. Texas, 486 U.S. 249, 257 (1988)). In this case, assuming that petitioner’s Sixth
Amendment rights were violated by the addition of Gary Ginther as a fingerprint
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expert, habeas relief is unavailable unless there is more than a reasonable
possibility that the addition of Ginther as a prosecution witness contributed to the
jury’s guilty verdict. Id.
Ginther only offered exculpatory evidence at trial,
namely, that petitioner’s fingerprints did not match the fingerprints recovered from
the outer yellow bag. By contrast, the evidence showed that petitioner admitted to
police following the traffic stop that the cocaine recovered from the trunk of the
vehicle that he was driving and was the sole occupant of belonged to him. Another
fingerprint expert testified to recovering one of petitioner’s fingerprints from one
of the bags. In light of extensive incriminating evidence against petitioner, this
Court does not believe that Ginther’s exculpatory testimony contributed to the
jury’s decision to convict petitioner. Id. at 535.
Petitioner lastly argues that he was denied the effective assistance of trial
counsel because Mr. Siegel failed to perfect his interlocutory appeal.
As
mentioned above, the trial court appointed Mr. Szabo to represent petitioner on the
interlocutory appeal. Mr. Szabo re-filed the interlocutory appeal. See Application
for Leave to Appeal, ECF 12-31, Pg ID 1845-1873. The Michigan Court of
Appeals denied the appeal on the ground that petitioner failed to “persuade the
Court of the need for immediate appellate review.” People v. Smith, No. 304529
(Mich.Ct.App. June 30, 2011).
20
Petitioner’s claim was mooted by the fact that replacement counsel was
appointed to file an interlocutory appeal for petitioner and did so. The Michigan
Court of Appeals reviewed petitioner’s interlocutory appeal under the standard
applicable for such appeals. Petitioner is thus unable to establish that he was
prejudiced because of Mr. Siegel’s failure to perfect his interlocutory appeal, in
light of the fact that petitioner was appointed new counsel who ultimately filed an
interlocutory appeal on his behalf. See e.g. United States v. Skelton, 68 F. App’x.
605, 607 (6th Cir. 2003)(defendant was not prejudiced by defense counsel’s failure
to file timely notice of appeal where defendant was granted an extension of time in
which to file his notice of appeal); United States v. Herrera-Rivera, 25 F.3d 491,
497 (7th Cir. 1994)(defendant suffered no prejudice from counsel’s failure to file
timely notice of appeal when district court permitted out-of-time appeal); Jones v.
Carroll, 388 F. Supp. 2d 413, 421 (D. Del. 2005)(State appellate court did not act
contrary to or unreasonably apply clearly established federal law in determining
that habeas petitioner was not prejudiced by counsel’s failure to timely file direct
appeal where trial court reinstated petitioner’s sentence so that he might perfect a
timely appeal). “Since no other Supreme Court precedent has expanded the Evitts
rule to require a forum for ineffective assistance of appellate counsel claims when
the appellant’s case was actually heard and decided,” as was the case here,
petitioner is not entitled to habeas relief on this portion of his claim. Wilson v.
21
Parker, 515 F.3d 682, 708 (6th Cir. 2008), as amended on denial of reh'g and reh'g
en banc (Feb. 25, 2009).
C. Claim # 3. The continuance claim.
Petitioner next claims that the trial judge denied him due process when he
refused to grant petitioner a continuance on June 14, 2011, the date of the rescheduled trial.
On the first day of trial, the judge actually indicated that the trial needed to
be put over one day because no jurors had been summoned due to an equipment
failure in the jury coordinator’s office. (Tr. 6/14/11, p. 3). Petitioner moved for an
adjournment of the trial and a stay of proceedings because his re-filed interlocutory
appeal was pending in the Michigan Court of Appeals. Petitioner also argued that
his new trial counsel, David Clark, was unprepared to go to trial because he only
had the trial court file since June 1, 2011, after receiving it from Mr. Szabo, who
had needed it to prepare the interlocutory appeal. Petitioner claimed that Mr. Clark
refused to listen to his input. (Id., pp. 6-9). Petitioner also indicated that he had
“spent two years preparing for this case.” (Id., p. 9). Petitioner also indicated “I
have a thousand questions that have been written; and so, if we’re going to proceed
to trial, then I’ll just go with self-representation. I will try this case myself. But
I’m not going to trial inadequately prepared.” (Id., pp. 9-10). Mr. Clark indicated
22
that he had had the trial file for almost two weeks, had met with petitioner for two
and a half hours on a Friday and again the day before trial. Mr. Clark indicated
that he was prepared to go to trial and had reviewed all of the police reports, the
preliminary examination transcript, plus all of the letters that petitioner had sent to
Mr. Siegel. Mr. Clark indicated that because of all of this extensive information
and preparation, it was “much easier to get up to speed.” (Id., pp. 14-15). The
judge granted petitioner his request to represent himself with the assistance of Mr.
Clark as advisory counsel. (Id., pp. 15-16).
The judge rejected petitioner’s continuance claim in his order denying the
motion for relief from judgment:
At the time Defendant argued this motion, he was being represented
by Attorney Clark. Defendant also asserted his right to selfrepresentation in his motion. Defendant’s stated reason for requesting
an adjournment is because he did not feel Attorney Clark had
sufficient time to prepare for his trial in comparison to the two years
Defendant had to prepare and analyze the case. Defendant’s claim
Attorney Clark was unable to prepare for trial is contradicted by
Attorney Clark’s own statement that he was in fact prepared to
proceed to trial. On the other hand, if Defendant is claiming he did not
have sufficient time to prepare, this is contradicted by Defendant’s
statement that he spent two years preparing for this case and further
demonstrated by thorough motions filed and arguments made in pro
per throughout pretrial hearings and trial. Defendant cannot
demonstrate an abuse of discretion by the Court or that he was
prejudiced by the Court’s rulings.
People v. Smith, No. 10-027124-FH, * 5-6 (Genesee Cty.Cir.Ct., Feb. 16,
2016).
23
In criminal proceedings, a trial court’s denial of a continuance rises to the
level of a due process constitutional violation only when there is an unreasoning
and arbitrary insistence upon expeditiousness in the face of a justifiable request for
delay. See Burton v. Renico, 391 F. 3d 764, 772 (6th Cir. 2004). In order to obtain
habeas relief, a habeas petitioner must show that the denial of his request for a
continuance resulted in actual prejudice to his defense. Id.; See also Powell v.
Collins, 332 F. 3d 376, 396 (6th Cir. 2003). Actual prejudice may be demonstrated
by showing that additional time would have made relevant witnesses available or
otherwise benefitted the defense. Powell, 332 F. 3d at 396.
Petitioner is not entitled to habeas relief on his claim because other than
conclusory assertions, he has failed to show that his substitute trial counsel, Mr.
Clark, was not prepared to go to trial on June 14, 2011.
Petitioner is also not entitled to habeas relief on his claim that the trial judge
should have granted petitioner a continuance after he chose to represent himself.
At the June 14, 2011 hearing, Petitioner indicated that he had spent over two years
preparing for the case and had written over one thousand questions. The judge’s
refusal to grant petitioner a continuance after allowing him to represent himself at
trial did not prejudice petitioner because petitioner has failed to show that he was
unprepared for trial or how additional time would have assisted his case. See e.g.
24
United States v. Gooch, 595 F. App’x. 524, 530 (6th Cir. 2014). Petitioner is not
entitled to habeas relief on his third claim.
D. Claim # 4. The missing transcript claim.
Petitioner next claims that his right to due process and a fair appeal was
denied when the Genesee County Circuit Court clerk initially failed to provide
petitioner’s appellate counsel or the Michigan Court of Appeals with a transcript
from the initial April 12, 2011 trial date and committed a fraud upon the court by
falsifying the state court records to conceal from the parties or the Michigan Court
of Appeals that there had actually been a hearing before the trial court on that date.
The trial judge denied the claim on petitioner’s post-conviction motion for
relief from judgment:
As to Defendant’s argument regarding the April 12, 2011 trial
transcript, this Court notes that transcript was filed in the Court of
Appeals on April 2, 2012, five months after the other trial transcripts
were filed. Following two motions to remand to the trial court to
address other issues, Defendant’s Appellant Brief was not filed until
February 7, 2013, well after the April 12, 2011 transcript was filed.
People v. Smith, No. 10-027124-FH, * 5 (Genesee Cty.Cir.Ct., Feb. 16,
2016).
The Sixth Circuit has stated that “federal habeas relief based on a missing
transcript will only be granted where the petitioner can show prejudice.” See Scott
v. Elo, 302 F. 3d 598, 604 (6th Cir. 2002)(citing Bransford v. Brown, 806 F. 2d 83,
25
86 (6th Cir. 1986)). Petitioner was ultimately provided with a copy of the April
12, 2011 transcript prior to the date that his appellate counsel filed her appellate
brief. Petitioner’s counsel had access to this transcript several months before filing
the appellate court brief, petitioner is thus unable to establish that he was
prejudiced by the court’s delay in providing him with a copy of this transcript.
Petitioner is not entitled to relief on his fourth claim.
E. Claim # 5. The denial of self-representation claim.
Petitioner next claims that his Sixth Amendment right to self-representation
was violated when his stand-by or advisory counsel, outside of petitioner’s
presence, discussed with the judge courtroom seating arrangements to conceal
from the jury that petitioner was wearing leg restraints.
The Michigan Court of Appeals rejected petitioner’s claim, finding that
“standby counsel’s brief discussion with the trial judge while neither the jury nor
defendant were present did not interfere with defendant’s right of selfrepresentation because it did not “substantially interfere with any significant
tactical decisions” or prevent defendant from speaking on his own behalf “on any
matter of importance.” People v. Smith, No. 305437, 2013 WL 5857567, at * 3
(Mich. Ct. App. Oct. 31, 2013)(quoting McKaskle v. Wiggins, 465 U.S. 168, 178
(1984).
26
The Michigan Court of Appeals then explained their rejection of petitioner’s
claim in greater detail:
Hearings in the trial court on remand revealed that defendant was
restrained while appearing in court as matter of the local sheriff’s
long-standing policy. Because defendant is a diabetic, he could not
wear a hidden stun device that would have permitted defendant to
freely move about the courtroom. Consequently, defendant was fitted
with leg braces under his clothing that would lock in place if he fully
extended his legs. While wearing the leg braces, defendant was
required to remain seated at a table in the courtroom. The issue of
whether it was necessary to restrain defendant while in the courtroom
was never raised before or addressed by the trial court. Instead,
standby counsel accepted that defendant would be restrained and
attempted to minimize its effect on defendant’s defense.
The record discloses that on the first day of trial, before the venire was
brought into the courtroom and before defendant arrived, a discussion
occurred between standby counsel and the court regarding seating
arrangements to conceal from the jury that defendant was wearing leg
restraints. Counsel advised the court that defendant could not wear a
stun device called “bandit” because of his medical condition and that
defendant’s medical condition would provide a somewhat truthful
explanation for the jury as to why defendant would remain seated
during the trial. This discussion commenced at 10:09 A.M. and
concluded at 10:14 A.M., when the record was closed. Court
reconvened at 10:28 A.M. in defendant’s presence, and the trial court
informed defendant that it did not want the jury to see all the security
devices. Defendant indicated his agreement by responding, “Right,”
and “No, no. We’ve got it fixed.” The trial court stated that if
defendant remained seated in his current position, a juror might be
able see something when coming forward from the gallery. The court
then suggested that “maybe we should start out with [defendant] on
this side,” but “we’re thinking ... that during the witness questioning
[defendant] should be on the end so ... [he] can see the witness more
clearly.” Defendant asked whether the jury might become “suspicious
that everybody’s getting up and standing up and I’m the only person
that's not,” to which standby counsel stated, “We’ll fix that,”
suggesting where defendant could be seated. Standby counsel told
27
defendant that the jury would be informed defendant’s medical
condition required him to remain seated. Further, standby counsel told
defendant that while seated he would “be able to look at the witness
and talk with them and the jurors will not be able to see your feet” and
that defendant would be “be able to look to the whole jury” and “be
able to do everything except you won't be able to stand up.” To all of
this explanation, defendant responded: “Okay.”
Standby counsel in the earlier colloquy out of defendant’s presence
had informed the court that defendant wanted counsel to conduct the
jury selection process and to question any expert witnesses that
appeared at trial. So, after discussing the seating arrangements, the
trial court asked defendant about the division of duties between
defendant and standby counsel, which defendant confirmed. The trial
court next reminded defendant of his right to not incriminate himself
and to exercise caution in asking witnesses questions. Defendant
indicated he “absolutely” understood. The Court then asked, “Do we
need to cover anything else?” Thereafter, the court asked whether the
jury could be brought into the courtroom. Only the prosecutor
responded with “yes.”
On remand, the trial court addressed this issue as follows:
[Standby counsel’s] discussion of logistical seating arrangements with
the Court outside Defendant’s presence was not a violation of selfrepresentation. Standby counsel may assist in “help[ing] ensure the
defendant’s compliance with basic rules of courtroom protocol and
procedure.” No legal arguments were made at that time the seating
arrangements were discussed and Defendant could have objected or
raised the issue as to shackling when his seating arrangements and
restraints were addressed in his presence. Once Defendant came into
the courtroom and the Court addressed the seating arrangements,
Defendant responded, “ok.” Defendant was not prevented from
objecting or addressing this issue further when he was brought before
the Court.
Id., at *5–6 (internal footnote omitted).
28
Criminal defendants have a constitutional right to conduct their own defense
at trial, if they voluntarily and intelligently elect to do so. Martinez v. Court of
Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 154 (2000); Faretta v.
California, 422 U.S. 806, 807 (1975). The Supreme Court, however, has held that
a court can appoint stand-by or advisory counsel to assist a defendant who wishes
to represent himself or herself at trial without violating the defendant’s Sixth
Amendment right to self-representation. See Martinez, 528 U.S. at 162; McKaskle
v. Wiggins, 465 U.S. 168, 176-77 (1984); Faretta, 422 U.S. at 834, n. 46. A
criminal defendant’s right to appear pro se does not absolutely bar standby
counsel’s unsolicited participation at a trial or at a hearing. McKaskle, 465 U.S. at
176.
In determining whether a defendant has been afforded his or her right to selfrepresentation, “the primary focus must be on whether the defendant had a fair
chance to present his case in his own way.” Id., at 177. The Supreme Court noted
that “the objectives underlying the right to proceed pro se may be undermined by
unsolicited and excessively intrusive participation by standby counsel.” Id. The
Sixth Amendment right to self-representation thus “must impose some limits on
the extent of standby counsel’s unsolicited participation.” Id.
limitations are thus placed on advisory or standby counsel:
29
The following
First, the pro se defendant is entitled to preserve actual control
over the case he chooses to present to the jury. This is the core of the
Faretta right. If standby counsel’s participation over the defendant’s
objection effectively allows counsel to make or substantially interfere
with any significant tactical decisions, or to control the questioning of
witnesses, or to speak instead of the defendant on any matter of
importance, the Faretta right is eroded.
Id. at 178. “Second, participation by standby counsel without the defendant’s
consent should not be allowed to destroy the jury’s perception that the defendant is
representing himself.” Id.
The Supreme Court in McKaskle noted that “participation by standby
counsel outside the presence of the jury engages only the first of these two
limitations.” McKaskle v. Wiggins, 465 U.S. at 179. “A trial judge…must be
considered capable of differentiating the claims presented by a pro se defendant
from those presented by standby counsel.”
Thus, “the appearance of a pro se
defendant’s self-representation will not be unacceptably undermined by counsel’s
participation outside the presence of the jury.” Id.
Accordingly, a criminal
defendant’s right to self-representation is “adequately vindicated in proceedings
outside the presence of the jury if the pro se defendant is allowed to address the
court freely on his own behalf and if disagreements between counsel and the pro se
defendant are resolved in the defendant’s favor whenever the matter is one that
would normally be left to the discretion of counsel.” Id., at 179.
30
In the present case, standby counsel’s participation in the case occurred
outside the presence of the jury. Counsel’s participation was limited to discussing
arranging the seating in the courtroom in such a way so that the jurors would not
observe petitioner’s restraints.
When petitioner was brought back into the
courtroom, the judge and counsel informed petitioner of their discussion and their
idea concerning the seating arrangement.
Petitioner was able to express his
concerns about the seating arrangements. Standby counsel informed petitioner that
he would remain seated throughout the trial and that the jury would be informed
that petitioner’s medical condition required him to remain seated. Petitioner was
advised by standby counsel that even though he would remain seated he would “be
able to look at the witness and talk with them and the jurors will not be able to see
your feet” and that petitioner would be “be able to look to the whole jury” and “be
able to do everything except you won’t be able to stand up.” To all of this
explanation, petitioner responded: “Okay.”
In the present case, petitioner’s right to self-representation was not violated
by counsel’s brief discussion about the seating arrangements in petitioner’s
absence, because the discussion occurred outside the jury’s presence and there is
no showing that counsel’s brief participation eroded petitioner’s actual control of
his defense. United States v. Walsh, 742 F.2d 1006, 1007 (6th Cir. 1984).
Petitioner is not entitled to relief on his fifth claim.
31
F. Claims # 5 and # 6. The shackling/ineffective assistance claim.
Petitioner in his sixth claim alleges that he was denied a fair trial because he
was shackled with leg restraints during his trial, of which one juror was aware,
although she also stated in a post-verdict questionnaire that her awareness of the
restraints did not influence her verdict.
As part of his fifth claim, petitioner
contends that his standby counsel was ineffective for failing to object.
The Michigan Court of Appeals rejected petitioner’s shackling claim,
finding that any error was harmless in light of the overwhelming evidence of
petitioner’s guilt and the lack of any evidence that the jurors were influenced by
the shackling. People v. Smith, 2013 WL 5857567, at *8.
The shackling of a defendant is harmless error if there is overwhelming
evidence of the defendant’s guilt. See Lakin v. Stine, 431 F.3d 959, 966 (6th Cir.
2005); See also Robinson v. Gundy, 174 F. App’x. 886, 893 (6th Cir. 2006). The
prejudice prong of the ineffective assistance analysis is essentially similar to the
inquiry made in harmless-error review. See Hall v. Vasbinder, 563 F.3d 222, 236
(6th Cir. 2009). In light of the overwhelming evidence of guilt, as mentioned
above, any shackling of petitioner was harmless error. Because the petitioner is
unable to show that he was prejudiced by being shackled, standby counsel was not
32
ineffective in failing to object to petitioner’s shackling. See Taylor v. McKee, 649
F. 3d 446, 451, n. 1 (6th Cir. 2011). Petitioner is not entitled to relief on his claim.
G. Claim # 7. The Fourth Amendment claim.
Petitioner finally claims that the police traffic stop violated his Fourth
Amendment rights.
However, Petitioner’s claim is non-cognizable.
Federal
habeas review of a petitioner’s arrest or search by state police is barred where the
state provided a full and fair opportunity to litigate an illegal arrest or a search and
seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976); Machacek v.
Hofbauer, 213 F. 3d 947, 952 (6th Cir. 2000). For such an opportunity to exist, the
state must have provided, in the abstract, a mechanism by which the petitioner
could raise the claim, and presentation of the claim must not have been frustrated
by a failure of that mechanism. Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982).
The relevant inquiry is whether a habeas petitioner had an opportunity to
litigate his or her claims, not whether he or she actually did so or even whether the
Fourth Amendment claim was correctly decided. See Wynne v. Renico, 279 F.
Supp. 2d 866, 892 (E.D. Mich. 2003); rev’d on other grds 606 F.3d 867 (6th Cir.
2010). Under the dictates of Stone, the correctness of a state court’s conclusions
regarding a Fourth Amendment claim, “is simply irrelevant.” See Brown v.
Berghuis, 638 F. Supp, 2d 795, 812 (E.D. Mich. 2009). “The courts that have
considered the matter ‘have consistently held that an erroneous determination of a
33
habeas petitioner’s Fourth Amendment claim does not overcome the Stone v.
Powell bar.’” Id. (quoting Gilmore v. Marks, 799 F. 2d 51, 57 (3rd Cir. 1986)).
In the present case, petitioner was able to present his Fourth Amendment
claim to the state trial court in his pre-trial motion to suppress. Petitioner was later
able to present his Fourth Amendment claim to the Michigan appellate courts.
That is sufficient to preclude review of the claims on habeas review. See Good v.
Berghuis, 729 F. 3d 636, 640 (6th Cir. 2013).
IV. CONCLUSION
The Court will deny the petition for a writ of habeas corpus. The Court will
also deny a certificate of appealability.
In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree
that, the petition should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Id. at 484. “The district court must
34
issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of petitioner’s claims to be debatable or wrong. See Dell v. Straub, 194
F. Supp. 2d 629, 659 (E.D. Mich. 2002).
Petitioner is denied leave to appeal in forma pauperis, because the appeal would be
frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of
habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
DENIED.
Dated:
April 8, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
35
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, April 8, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager
36
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