Hunter v. LeSatz
Filing
9
OPINION AND ORDER (1) DENYING 1 THE PETITION FOR A WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Signed by District Judge Paul D. Borman. (DTof)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FELANDO D. HUNTER, #738855,
Petitioner,
CASE NO. 2:18-CV-11228
HONORABLE PAUL D. BORMAN
v.
DANIEL LESATZ,
Respondent.
_______________________________/
OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS (ECF NO. 1), (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
I.
Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Felando D. Hunter (“Petitioner”) was convicted of first-degree felony murder, MICH.
COMP. LAWS § 750.316(b)(1), assault with intent to commit great bodily harm less
than murder, MICH. COMP. LAWS § 750.84, armed robbery, MICH. COMP. LAWS
§ 750.529, first-degree home invasion, MICH. COMP. LAWS § 750.110a(2), and
possession of a firearm during the commission of a felony, MICH. COMP. LAWS
§ 750.227b, following a jury trial in the Wayne County Circuit Court. He was
sentenced, as a second habitual offender, MICH. COMP. LAWS § 769.11, to life
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imprisonment without the possibility of parole on the murder conviction, a concurrent
term of 2 years 10 months to 15 years imprisonment on the assault conviction, a
concurrent term of 13 to 20 years imprisonment on the home invasion conviction, and
a consecutive term of two years imprisonment on the felony firearm conviction in
2012.1
In his habeas pleadings, Petitioner raises claims concerning the alleged
coercion of witnesses and trial counsel’s failure to object and seek suppression of
their testimony, alleged prosecutorial misconduct for improper vouching and trial
counsel’s failure to object to that conduct, and the admission of testimony relating to
his own out-of-court statements about an unrelated carjacking. (ECF No. 1, Petition.)
For the reasons set forth herein, the Court denies the petition for a writ of habeas
corpus. The Court also denies a certificate of appealability and denies Petitioner
leave to proceed in forma pauperis on appeal.
II.
Facts and Procedural History
Petitioner’s convictions arise from a home invasion and attempted armed
robbery during which one person was beaten and another person was shot to death in
Detroit, Michigan in 2012. The Michigan Court of Appeals described the underlying
1
The trial court did not sentence Petitioner on the armed robbery conviction,
finding that it “merged” with his felony murder conviction.
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facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
On August 8, 2012, Michael Montgomery (Montgomery) concocted a
plan to rob the home of Melissa Villneff (Melissa). Accompanied by six
other men, Montgomery traveled to her home that evening. Montgomery
lured Patrick Villneff (Patrick) away from the home. Michael Evans
(Evans), the driver, stayed behind in his vehicle. The remaining five
men, Felando, Brandon, Fredrick Young (Fredrick), Reco Simmons
(Reco), and Aquire Simmons (Aquire), approached the home. Felando
was armed with an SK assault rifle given to him by Montgomery. Reco
and Fredrick were armed with pistols, and Aquire was carrying a
baseball bat.
Terrance Villneff (Terrance) was inside the home, playing a video game.
He recounted being struck on the side of his face, after which he found
Felando pointing the SK rifle at his chest. Felando ordered Terrance to a
bedroom. When Terrance did not answer Felando's questions, Felando
ordered Aquire to beat Terrance with the bat. Aquire beat Terrance in the
head, forcing Terrance to crawl to a closet.
After this assault ended and the men left, Terrance heard several
gunshots. Several children who had been playing outside had observed
the armed men enter Melissa's home. They went to the house next door,
where John Villneff (John), Melissa's father, lived. They told John what
they saw, and he immediately called 911. He also stepped outside to his
porch. As the men were leaving Melissa's home, they saw John. Reco
fired a few shots toward John, followed by Felando, who fired several
shots from the assault rifle. John was struck and killed by one of these
bullets. All but Montgomery, who walked back to the home with Patrick
after the shooting, fled in the vehicle driven by Evans.
Felando and Brandon were tried jointly, but before separate juries. Evans
and Montgomery testified against them pursuant to plea agreements.
Felando and Brandon were convicted as described above.
People v. Hunter, No. 319020, 2016 WL 1039533, *1 (Mich. Ct. App. Mar. 15, 2016)
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(unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals raising the same claims presented on habeas
review. The court denied relief on those claims and affirmed his convictions and
sentences. Id. at *1-4. Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order. People v. Hunter,
500 Mich. 958, 891 N.W.2d 486 (2017).
Petitioner thereafter filed his federal habeas petition raising the following
claims:
I.
The police or the trial court violated his due process rights by
coercing witnesses into incriminating him; alternatively, defense
trial counsel was constitutionally ineffective in failing to move to
suppress the testimony of the witnesses.
II.
The prosecutor violated his due process rights by eliciting that two
alleged accomplices were not only testifying under plea
agreements, but had already pleaded guilty before trial, thereby
improperly vouching for the credibility of the accomplices;
alternatively, defense trial counsel was constitutionally ineffective
in failing to object.
III.
The trial court violated his due process rights by allowing the
prosecutor to introduce his alleged out-of-court statement about an
unrelated carjacking which was inadmissible and highly
prejudicial character evidence.
(ECF No. 1, Petition.) Respondent filed an answer to the habeas petition contending
that it should be denied because certain claims are procedurally defaulted and all of
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the claims lack merit. (ECF No. 7, Response.)
III.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal
courts must use when considering habeas petitions brought by prisoners challenging
their state court convictions. The AEDPA provides in relevant part:
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.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies
a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694
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(2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct 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); see also Bell, 535 U.S. at 694. However, “[i]n order for
a federal court find a state court’s application of [Supreme Court] precedent
‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.
The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ and ‘demands that state-court decisions be given the benefit of the doubt.’”
Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7);
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
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)). The Supreme Court has
emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63,
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75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments
or theories supported or ... could have supported, the state court’s decision; and then
it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision” of the
Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state
prisoner must 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; see also White v.
Woodall, 572 U.S. 415, 419-20 (2014). Federal judges “are required to afford state
courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Woods v. Donald, 575 U.S. 312, 316
(2015). A habeas petitioner cannot prevail as long as it is within the “realm of
possibility” that fairminded jurists could find the state court decision to be
reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (noting that the Supreme Court “has held on numerous occasions that it is not
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‘an unreasonable application of clearly established Federal law’ for a state court to
decline to apply a specific legal rule that has not been squarely established by this
Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam));
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a
state court to give reasons before its decision can be deemed to have been
‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not
require citation of [Supreme Court] cases–indeed, it does not even require awareness
of [Supreme Court] cases, so long as neither the reasoning nor the result of the statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16.
The requirements of clearly established law are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law as determined by the Supreme Court’” and it cannot provide
the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012)
(per curiam); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam). The
decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d
488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.
2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
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A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61
(6th Cir. 1998). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV.
Analysis
A.
Procedural Default
As an initial matter, Respondent contends that certain habeas claims are barred
by procedural default. The Court declines to address this procedural defense. It is
not a jurisdictional bar to review of the merits. Howard v. Bouchard, 405 F.3d 459,
476 (6th Cir. 2005). Moreover, federal courts on habeas review “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)). The Supreme Court has explained the
rationale behind such a policy: “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. Such is the case here. The procedural issues are
complex and intertwined with the substantive claims such that the substantive claims
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are more readily decided on the merits. Accordingly, the Court shall proceed to the
merits of Petitioner’s claims.
B.
Merits
1.
Witness Coercion and Ineffective Assistance of Counsel
Petitioner first asserts that he is entitled to habeas relief because the police and
the trial court coerced witnesses into testifying against him at trial and trial counsel
was ineffective for failing to object and seek suppression of those witnesses’
testimony. (Petition, PageID.39.) Respondent contends that this claim is
procedurally defaulted in part and that it lacks merit. (Response, PageID.119.)
Petitioner first asserts that the police coerced Demerious Cunningham and
LaShonda Cunningham into (presumably falsely) testifying against him at trial and
that such conduct is imputed to the prosecution. (Petition, PageID.42.) The United
States Supreme Court has stated that prosecutors must “refrain from improper
methods calculated to produce a wrongful conviction.” Berger v. United States, 295
U.S. 78, 88 (1935). The Supreme Court has also made clear that the “deliberate
deception of a court and jurors by the presentation of known and false evidence is
incompatible with the rudimentary demands of justice.” Giglio v. United States, 405
U.S. 150, 153 (1972). Consequently, “a conviction obtained by the knowing use of
perjured testimony is fundamentally unfair, and must be set aside if there is any
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reasonable likelihood that the false testimony could have affected the judgment of
the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted); see
also Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 161 F.3d 320, 343 (6th
Cir. 1998).
The Michigan Court of Appeals considered this issue on plain error review
and denied relief. The court explained in relevant part:
“Both our Supreme Court and this Court have strongly condemned
prosecutorial intimidation of witnesses.” “Threats from law
enforcement officers may be attributed to the prosecution.” And
“[a]lthough the issue of prosecution intimidation usually arises in the
context of alleged intimidation of defense witnesses, this Court has
condemned as well intimidation by the prosecution of its own
witnesses.” Our Courts generally consider issues pertaining to witness
intimidation under the framework of prosecutorial misconduct.
Ultimately, the question is whether, after examining the “statements and
actions in context, the defendant was denied a fair and impartial trial.”
Felando first argues that Demerious Cunningham (Demerious) was
coerced by police into incriminating Felando. Demerious testified that
he spoke with police on August 9, 2012. He initially lied to police
“[b]ecause [he] didn't want to be involved, and [he] was scared that
something would happen to [his] family.” However, he later told police
the same version of events that he testified to at trial. When asked what
changed his mind, Demerious testified that police threatened to “give
[him] four years[ ]” for lying during a police investigation. Felando
asserts that this threat denied him a fair trial. However, there is no
prohibition against informing a witness of the potential consequences of
making false statements. Nor is there any indication that police coerced
Demerious into specifically implicating Felando. Rather, their actions
encouraged Demerious to be forthcoming about what transpired. The
officer's conduct did not deprive Felando of a fair trial.
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Felando similarly asserts LaShanda Cunningham (LaShanda) was
pressured into implicating Felando in the crime. But as was the case
with Demerious, there is no evidence that police intimidated her into
specifically implicating Felando. If anything, police encouraged her to
provide complete and honest information. This did not deprive Felando
of a fair trial. Moreover, LaShanda's testimony was of little
consequence. LaShanda's testimony confirmed what was already known
through the testimony of several other witnesses: that Felando and
others came to her home the morning of August 9, 2012, and that
Felando was in possession of a large, black gun. In light of the
substantial evidence admitted against Felando, any error in admitting
LaShanda's testimony was not outcome-determinative.
Hunter, 2016 WL 1039533 at *2 (footnotes with citations omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Under federal law, a criminal
defendant does not have standing to challenge the voluntariness of a statement made
by a witness to the police because the privilege against self-incrimination of the Fifth
and Fourteenth Amendments is personal in nature and does not extend to third
parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234
(1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981). While the
United States Court of Appeals for the Sixth Circuit has indicated that the use of a
witness’s coerced testimony may violate a defendant’s rights under the Due Process
Clause of the Fourteenth Amendment, see Bradford v. Johnson, 476 F.2d 66 (6th
Cir. 1973), the United States Supreme Court has not so ruled. See Samuel v. Frank,
526 F.3d 566, 569 (7th Cir. 2008); see also Johnson v. Bell, 525 F.3d 466, 479-81
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(6th Cir. 2008) (distinguishing Webb v. Texas, 409 U.S. 95 (1972), and Washington
v. Texas, 388 U.S. 14 (1967), and denying relief on claim that authorities coerced
witness into providing favorable prosecution testimony). Consequently, absent a
showing that the disputed testimony was false, Petitioner arguably fails to state a
claim upon which habeas relief may be granted as to this issue. See Alexander v.
Lafler, No. 11-CV-10286, 2013 WL 3191134, *10 (E.D. Mich. June 21, 2013)
(denying habeas relief on witness coercion claim); see also Greene v. Burt, No. 15CV-13008, 2018 WL 1784501, *5, n. 2 (E.D. Mich. April 13, 2018) (same).
Nonetheless, even assuming that Petitioner states a due process claim on
habeas review, he is not entitled to relief. The record does not support his assertion
of improper witness coercion. Demerious Cunningham admitted at trial that he
initially lied to the police because he did not want to be involved and was scared for
his family. When the police questioned him again, Demerious implicated Petitioner.
Demerious testified that he changed his mind after the police told him that they were
going to give him four years if he lied during a police investigation. (See ECF 8-13,
9/24/13 Trial Tr., pp. 195-96, PageID.1066-1067.) Informing a witness about the
potential consequences of lying or not cooperating with the authorities, without
more, does not constitute coercion. See generally Brady v. United States, 397 U.S.
742, 750-51 (1970); McKinney v. Ludwick, 649 F.3d 484, 491-92 (6th Cir. 2011)
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(citing cases for rule that informing a suspect about legal consequences of crime and
cooperation benefits is not inherently coercive so as to render police statements
involuntary); United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995) (warning a
witness of consequences of perjury does not constitute a due process violation).
Moreover, given Demerious’ testimony, the jury was aware of the circumstances
surrounding his police statements and trial testimony and was able to judge his
credibility and motivations for testifying at trial. Due process is not violated by the
admission of witness testimony allegedly secured through police intimidation where
the jury hears evidence regarding the alleged intimidation. See Johnson, 525 F.3d at
481; see also Bacon v. Klee, No. 15-2491, 2016 WL 7009108, *2 (6th Cir. Nov. 30,
2016).
Lastly, Petitioner fails to show that Demerious testified falsely at trial or that
the prosecutor knowingly presented false testimony. The fact that a witness
contradicts himself or changes his story does not establish perjury, see, e.g., Malcum
v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003), and mere inconsistencies in a
witness’s testimony do not establish the knowing use of false testimony by a
prosecutor. Coe, 161 F. 3d at 343. “While a prosecutor may not knowingly use
perjured testimony, a prosecutor is not required to ensure that prosecution witnesses’
testimony be free from all confusion, inconsistency, and uncertainty.” Jackson v.
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Lafler, No. 06-CV-15676, 2009 WL 1313316, *12 (E.D. Mich. May 11, 2009).
Petitioner fails to establish a due process violation.
As to LaShonda Cunningham, the record does not indicate that she was
coerced to lie to implicate Petitioner in the crime. At the preliminary examination,
LaShonda testified that she was trying to cooperate with the police and tell them
what she knew, but they did not like what she was saying and arrested her. They
told her that they would “take [her] down” if she did not tell them who came to her
house and tell them her sons’ whereabouts. She signed a statement and was released
from custody. (See ECF No. 1, Pet. App. Brf., p. 10 n. 9, PageID.31 (citing 9/28/12
Prelim. Ex. Tr., p. 154).)2 While the police may have pressured LaShonda into
providing a statement, there is no evidence that she changed her story or gave a false
statement to police or testified falsely at trial. Moreover, as discussed by the
Michigan Court of Appeals, any error in admitting LaShonda’s testimony was
harmless. For purposes of federal habeas review, a constitutional error that
implicates trial procedures is considered harmless if it did not have a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-18
2
The preliminary examination transcript was not submitted to this Court as
part of the state court record.
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(2007) (confirming that the Brecht standard applies in “virtually all” habeas cases);
Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is
“always the test” in the Sixth Circuit). The prosecution in this case presented
significant evidence of Petitioner’s guilt at trial, including testimony from the
surviving victim and co-defendants who participated in the crime. Given such
evidence, any error in admitting LaShonda’s testimony did not have a substantial or
injurious effect or influence on the jury’s verdict. More pointedly, for purposes of
habeas review, the Michigan Court of Appeals’ decision to that effect is reasonable.
Petitioner fails to establish a due process violation.
Petitioner also asserts that the trial court coerced Michael Evans into testifying
at trial by threatening to void his plea agreement if he refused to testify. (Petition
PageID.42.) Prior to Evans’ testimony (outside the jury’s presence), the trial court
gave Evans and his counsel time to discuss whether he was going to testify at trial.
The court informed the parties that if Evans refused to testify, the court was going to
“snatch” his plea agreement out of the file and have him go to trial. After meeting
with counsel, Evans chose to testify in order to comply with his plea agreement.
(See ECF No. 8-15, 9/26/13 Trial Tr., pp. 40-41, PageID.1334-1335.) Evans
testified about his plea and the plea agreement was entered into evidence. (Id. at pp.
57-58, PageID.1351-1352.)
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The Michigan Court of Appeals considered this claim on plain error review
and denied relief. The court explained:
Felando also argues that the trial court coerced Evans into testifying by
stating its intention to void his plea agreement if he refused to testify.
After Evans indicated that he might refuse to testify, the trial court
stated that it would “snatch[ ] that agreement out of this file, and
[Evans] will go to trial....” The trial court then provided Evans almost
30 minutes to speak with his attorneys. After this conversation, Evans
agreed to testify. Under the circumstances, we cannot conclude that
Evans was coerced by the trial court into testifying. He was given ample
opportunity to consult with his attorneys and decide, in light of his plea
agreement, whether to testify. Moreover, the jury was well-informed
that Evans was testifying pursuant to a plea agreement. The jury was
able to consider the effect of this fact on Evans's credibility. Felando
was not denied a fair trial.
Hunter, 2016 WL 1039533 at *2.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Informing a witness about
the consequences of testifying or not testifying at trial, including the potential effect
on the witness’ own plea deal which was contingent on his testimony, does not
constitute coercion. This is particularly true where, as here, the witness was given
ample time to consult with counsel about his decision. Additionally, the record
shows that Evans’ plea deal was disclosed at trial, thereby allowing the jury to
consider his motivation for testifying at trial and to evaluate his credibility.
Petitioner fails to establish a due process violation. Habeas relief is not warranted on
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this claim.
Petitioner relatedly asserts that trial counsel was ineffective for failing to
object and seek suppression of the aforementioned witnesses’ testimony. The Sixth
Amendment to the United States Constitution guarantees a criminal defendant the
right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S.
668 (1984), the United States Supreme Court set forth a two-prong test for
determining whether a habeas petitioner has received ineffective assistance of
counsel. First, a petitioner must prove that counsel’s performance was deficient.
This requires a showing that counsel made errors so serious that he or she was not
functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S.
at 687. Second, the petitioner must establish that counsel’s deficient performance
prejudiced the defense. Counsel’s errors must have been so serious that they
deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. The
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689.
There is a strong presumption that trial counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.
Id. at 690. The petitioner bears the burden of overcoming the presumption that the
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challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is
sufficient to undermine confidence in the outcome of the proceeding. Id. “On
balance, the benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings is
quite limited on habeas review due to the deference accorded trial attorneys and state
appellate courts reviewing their performance. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations
omitted). “When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
The Michigan Court of Appeals considered this claim and denied relief. The
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court ruled that Petitioner failed to establish that trial counsel was ineffective
because the underlying issues lack merit and counsel cannot be ineffective “for
failing to make a futile objection.” Hunter, 2016 WL 1039533 at *3.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Given the Michigan Court of
Appeals’ decision and this Court’s decision that the witnesses were not coerced into
testifying for the prosecution, Petitioner cannot establish that trial counsel erred
and/or that he was prejudiced by counsel’s conduct. Counsel cannot be deemed
ineffective for failing to make a futile or meritless objection. See Coley v. Bagley,
706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is neither
professionally unreasonable nor prejudicial.”); United States v. Steverson, 230 F.3d
221, 225 (6th Cir. 2000). Habeas relief is not warranted on this claim.
2.
Prosecutorial Misconduct and Ineffective Assistance of
Counsel Claim
Petitioner next asserts that he is entitled to habeas relief because the
prosecutor engaged in misconduct by vouching for the credibility of witnesses.
Specifically, he asserts that the prosecutor vouched for witnesses Montgomery and
Evans by eliciting testimony that those witnesses testified pursuant to plea
agreements. (Petition PageID.44.) Petitioner relatedly asserts that trial counsel was
ineffective for failing to object to the prosecutor’s conduct. (Id.) Respondent
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contends that this claim is procedurally defaulted in part and that it lacks merit.
(Response PageID.134.)
As discussed, the Supreme Court has stated that prosecutors must “refrain
from improper methods calculated to produce a wrongful conviction.” Berger, 295
U.S. at 88. To prevail on a claim of prosecutorial misconduct, a habeas petitioner
must demonstrate that the prosecutor’s conduct or remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168, 181
(1986) (citing Donnelly); see also Parker v. Matthews, 567 U.S. 37, 45 (2012)
(confirming that Donnelly/Darden is the proper standard).
The Michigan Court of Appeals considered this claim on plain error review
and denied relief. The court explained in relevant part:
As Felando acknowledges, a prosecutor does not impermissibly vouch
for a witness's credibility by referring to the fact that the witness has
agreed to provide truthful testimony pursuant to a plea agreement.
However, a prosecutor may impermissibly vouch for the credibility of a
witness by using the plea agreement in a way that suggests that the
government has special knowledge of the witness's truthfulness.
Felando argues that by referencing the fact that Montgomery and Evans
entered their pleas before they testified, the prosecutor inferred that she
had verified their testimony. Otherwise, Felando contends, the
prosecutor would have objected to entry of the pleas. Felando's
argument is logically flawed. At the time the witnesses entered their
pleas, they had not testified. The prosecutor could not have verified the
veracity of testimony that had yet to occur, and thus, had no reason to
object to the pleas at the time they were entered. The prosecutor in no
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way suggested she had any special knowledge that Montgomery and
Evans were providing truthful testimony.
Hunter, 2016 WL 1039533 at *3 (footnotes with citations omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. It is well-settled that it is
improper for a prosecutor to express his or her own personal beliefs and opinions
concerning the credibility of a witness. See United States v. Young, 470 U.S. 1, 9-10
(1985); United States v. Modena, 302 F.3d 626, 634 (6th Cir. 2002). Such
statements are improper because they can convey the impression that the prosecutor
has evidence not presented to the jury which supports the charge against the
defendant thereby infringing upon the defendant’s right to be judged solely based
upon the evidence presented and because the prosecutor’s opinion carries with it the
imprimatur of the Government and may induce the jury to trust the Government’s
judgment rather than its own. See United States v. White, 58 F. App’x 610, 617-18
(6th Cir. 2003) (citing cases).
In this case, the prosecutor did not improperly vouch for the two witnesses’
credibility by eliciting testimony about their plea agreements. A claim similar to
Petitioner’s was rejected in United States v. Trujillo, 376 F.3d 593 (6th Cir. 2004),
where the prosecution noted that two witnesses “promised to be truthful and provide
complete information” pursuant to their plea agreements. The Sixth Circuit held
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such remarks did not constitute improper vouching because the prosecution:
did not offer any personal observations or opinions as to the veracity of
either [witness], nor did she place the prestige of the Government
behind their credibility. Rather, the prosecutor's questions and
comments merely encompassed the terms of [the] plea agreements
which this Court has held to be permissible.
Id. at 608-09; see also United States v. Owens, 426 F.3d 800, 806 (6th Cir. 2005)
(citations omitted) (“improper vouching includes either blunt comments or
comments that imply that the prosecutor has special knowledge of facts not in front
of the jury.”). In this case, the prosecution did not imply any specialized knowledge
of whether witnesses Montgomery and Evans had testified truthfully. Rather, the
prosecution simply presented evidence of their plea agreements. Petitioner fails to
establish that the prosecution erred or that he was denied due process. Habeas relief
is not warranted on this claim.
Petitioner relatedly asserts that trial counsel was ineffective for failing to
object to the prosecutor’s conduct at trial. As discussed, in order to prevail on an
ineffective assistance of counsel claim, a habeas petitioner must prove that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687.
The Michigan Court of Appeals considered this claim and denied relief. The
court ruled that Petitioner failed to establish that trial counsel was ineffective
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because the underlying claim lacks merit and counsel cannot be ineffective “for
failing to make a futile objection.” Hunter, 2016 WL 1039533 at *3.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Given the Michigan Court of
Appeals’ decision and this Court’s decision that the prosecutor did not engage in
misconduct which rendered the trial fundamentally unfair, Petitioner cannot establish
that trial counsel erred and/or that he was prejudiced by his counsel’s conduct. As
discussed, counsel cannot be deemed ineffective for failing to make a futile or
meritless objection. Coley, 706 F.3d at 752; Steverson, 230 F.3d at 225. Habeas
relief is not warranted on this claim.
3.
Admission of Other Acts Evidence Claim
Lastly, Petitioner asserts that he is entitled to habeas relief because the trial
court erred in admitting other acts evidence, which consisted of Demerious
Cunningham’s testimony relating Petitioner’s out-of-court statements about an
unrelated carjacking. (Petition PageID.49.) Respondent contends that this claim is
waived, procedurally defaulted, and not cognizable. (Response PageID.142.)
A federal court may only grant habeas relief to a person who is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Alleged trial court errors in the application of state evidentiary law are
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generally not cognizable as grounds for federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions”); Serra v. Michigan
Dep’t of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court errors in state
procedure or evidentiary law do not rise to the level of federal constitutional claims
warranting relief in a habeas action, unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting McGuire,
502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010)
(citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir. 2003).
The Michigan Court of Appeals considered this claim and denied relief. The
court ruled that the claim was waived by trial counsel’s agreement that the
prosecutor was not admitting the evidence to prove Petitioner’s propensity to commit
a crime. The court further ruled that, even if the trial court erred in admitting the
evidence, such an error did not affect the outcome at trial. The court explained in
relevant part:
But even if the trial court abused its discretion by admitting the
evidence, reversal is not warranted. Multiple witnesses testified to
Felando's involvement in the crime, including Terrance, who was
beaten during the robbery that preceded John's murder; Montgomery,
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who orchestrated the crime; and Evans, the getaway driver. Brandon
also testified to Felando's involvement. Demerious testified that Felando
explained his own involvement in the crime in detail. The fact that
Felando had apparently also committed a carjacking was insignificant.
The point was not stressed when the prosecutor questioned Demerious.
Nor was this fact relied on by the prosecutor in her closing argument.
On the whole, the single mention of this carjacking did not affect the
outcome of the trial, and thus, reversal is not required.
Hunter, 2016 WL 1039522 at *4.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of Supreme Court precedent or the facts. First, to the
extent that Petitioner asserts that the trial court erred in admitting evidence under
Michigan law, he merely alleges a violation of state law which does not justify
federal habeas relief. See, e.g., Bey, 500 F.3d at 519. State courts are the final
arbiters of state law and the federal courts will not intervene in such matters. Lewis
v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir.
1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting on habeas review”); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for perceived
errors of state law. Estelle, 502 U.S. at 67-68.
Second, Petitioner fails to establish that the admission of the other acts
evidence resulted in a federal due process violation. As to the admission of other
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acts evidence, the United States Supreme Court has declined to hold that similar
“other acts” evidence is so extremely unfair that its admission violates fundamental
conceptions of justice. Dowling v. United States, 493 U.S. 342, 352–53 (1990).
Thus, “[t]here is no clearly established Supreme Court precedent which holds that a
state violates due process by permitting propensity evidence in the form of other bad
acts evidence.” Bugh, 329 F.3d at 512. Consequently, there is no Supreme Court
precedent that the state court decisions could be deemed “contrary to” under 28
U.S.C. § 2254(d)(1). Id. at 513; Adams v. Smith, 280 F. Supp. 2d 704, 716 (E.D.
Mich. 2003). Petitioner thus fails to state a claim upon which habeas relief may be
granted as to this issue.
Furthermore, even if Petitioner states a cognizable claim as to the admission of
the other acts testimony, he is not entitled to federal habeas relief. He fails to show
that the admission of the carjacking testimony rendered his trial fundamentally
unfair. As discussed, for purposes of federal habeas review, a constitutional error
that implicates trial procedures is considered harmless if it did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 637; see also Fry, 551 U.S. at 117-18; Ruelas, 580 F.3d at 411.
Given the significant evidence of Petitioner’s guilt presented at trial, including
testimony from the surviving victim and from co-defendants who participated in the
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crimes, any error in admitting the carjacking testimony did not have a substantial or
injurious effect or influence on the jury’s verdict. More importantly, for purposes of
habeas review, the Michigan Court of Appeals’ decision to that effect is reasonable.
Habeas relief is not warranted on this claim.
V.
Conclusion
For the reasons stated, the Court concludes that Petitioner’s claims lack merit
and that he is not entitled to federal habeas relief. Accordingly, the Court DENIES
and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A
certificate of appealability may issue only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a
court denies relief on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the court’s assessment of
the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A
petitioner satisfies this standard by demonstrating that ... jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). Having conducted the requisite review, the
Court concludes that Petitioner fails to make a substantial showing of the denial of a
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constitutional right as to his habeas claims. Accordingly, the Court DENIES a
certificate of appealability.
Lastly, the Court concludes that an appeal from this decision cannot be taken
in good faith. See FED. R. APP. P. 24(a). Accordingly, the Court DENIES Petitioner
leave to proceed in forma pauperis on appeal. This case is CLOSED.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: August 27, 2020
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