Pearson v. Romanowski
Filing
16
OPINION AND ORDER DISMISSING the Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and DENYING Leave to Appeal In Forma Pauperis. Signed by District Judge Terrence G. Berg. (Chubb, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JARED MICAH PEARSON,
Petitioner,
Case No. 12-14816
HON. TERRENCE G. BERG
v.
KENNETH ROMANOWSKI,
Respondent.
___________________________________/
OPINION AND ORDER DISMISSING
THE PETITION FOR WRIT OF HABEAS CORPUS;
DENYING A CERTIFICATE OF APPEALABILITY; AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Jared Micah Pearson (“Petitioner”), a state-prisoner presently confined at the
Gus Harrison Correctional Facility in Adrian, Michigan, seeks the issuance of a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner
challenges his conviction for voluntary manslaughter, MCL 750.321; and for being a
third felony habitual offender, MCL 769.11. For the reasons stated below, the
petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
I.
FACTUAL BACKGROUND
Petitioner was originally charged with second-degree murder, carrying a
concealed weapon, and being a third felony habitual offender. Following a jury trial
in the Kent County Circuit Court, Petitioner was found: (1) guilty of the lesser
included offense of voluntary manslaughter on the second-degree murder count and
(2) not guilty of carrying a concealed weapon.
This Court recites verbatim the relevant facts regarding Petitioner’s
conviction from the Michigan Court of Appeals’ opinion affirming his conviction,
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):
In July 2007, defendant appeared at the home of Charles Lopez and
the two engaged in conversation outside the home.
Both had
apparently been drinking. Lopez became angry when defendant began
flirting with his girlfriend and an altercation ensued. At some point, a
knife was produced and defendant fatally stabbed Lopez in the neck.
Defendant fled the scene, but was arrested a short time later. He was
charged with second degree murder and carrying a concealed weapon.
People v. Pearson, No. 284708, *1 (Mich. Ct. App. Sept. 24, 2009).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 485 Mich. 1082,
777 N.W.2d 189 (2010); reconsideration den. 486 Mich. 904, 780 N.W.2d 818 (2010).
Petitioner then filed a post-conviction motion for relief from judgment with
the trial court, which was denied. People v. Pearson, No. 07-09567-FC (Kent Cnty.
Circuit Court, Dec. 27, 2010). The Michigan appellate courts subsequently denied
Petitioner leave to appeal. People v. Pearson, No. 305752 (Mich. Ct. App. Nov. 22,
2011); lv. den. 491 Mich. 942, 815 N.W.2d 452 (2012).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. Petitioner Jared Pearson was denied a fair trial by the prosecutor’s
improper and repeated use of irrelevant evidence and argument that
[Petitioner] did not call 911 and did not tell the police that he acted in
self-defense, thus improperly shifting the burden of proof on selfdefense and using [Petitioner’s] exercise of his rights to silence and to a
lawyer as substantive evidence of guilt.
II. The trial judge committed plain error and denied [Petitioner] his
rights to present a defense, to due process, and to a fair trial by giving
2
confusing instructions stating that self-defense was a valid defense to
second-degree murder but failing to clarify that self-defense also
applied to voluntary manslaughter. And trial counsel was ineffective
by expressing satisfaction with the instructions.
III. Petitioner Jared Pearson was denied his right to present a
complete defense by trial counsel’s ineffectiveness. Trial counsel failed
to fully question [Petitioner] regarding Sergeant Postma’s testimony
that [Petitioner] suddenly blurted out, “I’m as guilty as a bitch.”
[Petitioner’s] testimony would have shown that [Petitioner] stated,
“ain’t that a bitch, I’m guilty,” in response to Postma’s accusation of
guilt.
The prosecution used Postma’s uncontroverted testimony
arguing that [Petitioner’s] own words tell you that he did not have the
required mind state for lawful self-defense.
IV. Petitioner was denied his right to the effective assistance of
appellate counsel when appellate counsel failed to investigate and
raise on direct appeal a claim that trial counsel was ineffective for
failing to fully question Pearson regarding an alleged excited
utterance.
(Dkt. 1, Pet.).
II.
STANDARD OF REVIEW
The federal statute governing habeas, 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:
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.
3
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 “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.
The Supreme Court has explained that “[A] federal court’s collateral review
of a state-court decision must be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7
(1997); 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. ---, ---, 131 S.Ct. 770, 786 (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
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unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, 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.
“[I]f this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S.Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal
court to grant habeas relief only “in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with” the Supreme
Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in
judgment)). Thus, a “readiness to attribute error [to a state court] is inconsistent
with the presumption that state courts know and follow the law.” Woodford, 537
U.S. at 24. 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.” Harrington,
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131 S. Ct. at 786–87. Finally, in reviewing Petitioner’s claims, this Court must
remember that under the federal constitution, Petitioner was “entitled to a fair trial
but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953).
III.
A.
DISCUSSION
The Motion for an Evidentiary Hearing.
Petitioner has moved for an evidentiary hearing on his ineffective assistance
of counsel claims.
When deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable the habeas petitioner to prove the
petition’s factual allegations, which, if true, would entitle the petitioner to federal
habeas relief on his claim or claims. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007). “[B]ecause the deferential standards prescribed by § 2254 control whether
to grant habeas relief, a federal court must take into account those standards in
deciding whether an evidentiary hearing is appropriate.” Id. If the record refutes
the habeas Petitioner’s factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing. Id. Stated differently,
a habeas Petitioner is not entitled to an evidentiary hearing on his claims if they
lack merit. See Stanford v. Parker, 266 F.3d 442, 459–60 (6th Cir. 2001). Because
the record is sufficient to permit the Court to evaluate Petitioner’s claims and
determine that they lack merit, as will be discussed in greater detail below,
Petitioner is not entitled to an evidentiary hearing.
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Accordingly, Petitioner’s motion for an evidentiary hearing (Dkt. 15) is
DENIED.
B.
Claim 1 – Prosecutorial Misconduct.
Petitioner first contends that he was deprived of a fair trial by prosecutorial
misconduct.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will
be held to violate a criminal defendant’s constitutional rights only if they “‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form
the basis for habeas relief only if the conduct was so egregious as to render the
entire trial fundamentally unfair based on the totality of the circumstances.
Donnelly, 416 U.S. at 643–45. The Court must focus on “‘the fairness of the trial,
not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th
Cir. 1997) (quoting Serra v. Michigan Dep't of Corr., 4 F.3d 1348, 1355 (6th Cir.
1993)). Likewise, “[t]he Supreme Court has clearly indicated that the state courts
have substantial breathing room when considering prosecutorial misconduct claims
because ‘constitutional line drawing [in prosecutorial misconduct cases] is
necessarily imprecise.’” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting
Donnelly, 416 U.S. at 645). Thus, in order to obtain habeas relief on a prosecutorial
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misconduct claim, a habeas petitioner must show that the state court’s rejection of
his prosecutorial misconduct claim “was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 567 U.S. ---, ---, 132 S.Ct. 2148,
2155 (2012) (quoting Harrington, 131 S.Ct., at 786–87). This is particularly so,
“because the Darden standard is a very general one, leaving courts ‘more leeway ...
in reaching outcomes in case-by-case determinations.’” Id. (quoting Yarborough v.
Alvarado, 541 U.S. at 664).
1.
Introduction of Irrelevant Evidence
Petitioner begins by asserting that the prosecutor committed misconduct by
introducing irrelevant evidence against him at his trial. The Sixth Circuit has
noted that there are no Supreme Court cases which support the proposition that a
prosecutor’s questions that simply call for answers that are inadmissible due to
relevancy constitute prosecutorial misconduct that rises to the level of a federal due
process violation. See Wade v. White, 120 F. App’x 591, 594 (6th Cir. 2005).
Therefore, the mere fact that the prosecutor attempted to elicit irrelevant evidence
at Petitioner’s trial would not entitle him to habeas relief. Id.
2.
Alleged Violations of Fifth Amendment (Pre-Arrest)
Petitioner further contends that the prosecutor penalized him for exercising
his Fifth Amendment right to remain silent by asking questions or commenting on
Petitioner’s failure to call 911 or to inform the police at the time of his arrest that he
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had acted in self-defense. Petitioner is not entitled to habeas relief on this portion
of his claim.
The prosecutor’s references during closing argument to Petitioner’s failure to
call 911 after the stabbing are references to Petitioner’s pre-arrest silence.
However, it appears from the record that the prosecutor brought up Petitioner’s
failure to call 911 after the stabbing in order to impeach Petitioner’s claim that he
had killed the victim in self-defense.1 The Supreme Court has held that use of a
defendant’s pre-arrest silence for impeachment purposes does not violate the Fifth
Amendment right against self-incrimination or the Fourteenth Amendment right to
due process because the “impeachment follows the defendant’s own decision to cast
aside his cloak of silence and advances the truth-finding function of the criminal
trial.” Jenkins v. Anderson, 447 U.S. 231, 238–39 (1980). In the present case,
Petitioner took the stand and testified that he stabbed the victim in self-defense.
References to Petitioner’s pre-arrest silence were thereafter permissible under
Jenkins to impeach his credibility.
Moreover, even if the Court were to construe Petitioner’s pre-arrest silence as
having been offered as substantive evidence of Petitioner’s guilt, such a use was not
prohibited by “clearly established federal law” at the time of Petitioner’s trial.
Although the Sixth Circuit has held that the use of a defendant’s pre-arrest silence
1 When viewed in the overall context of the prosecutor’s arguments, the comments about Petitioner’s
failure to call 911 appear to have been used to cast doubt on Petitioner’s claim of self-defense and not
as substantive evidence of Petitioner’s guilt. See Seymour v. Walker, 224 F.3d 542, 560 (6th Cir.
2000).
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as substantive evidence of guilt violates the Fifth Amendment privilege against selfincrimination, see Combs v. Coyle, 205 F. 3d 269, 283 (6th Cir. 2000), in doing so it
acknowledged that the Supreme Court in Jenkins never addressed the issue of
whether the use of pre-arrest silence as substantive evidence violated the Fifth
Amendment. Id. at 281. The Sixth Circuit further noted that the federal circuits
that had considered the issue were “equally divided” over whether a defendant’s
pre-arrest silence could be used as substantive evidence of guilt. Id. at 282
(collecting cases). Likewise, another judge in this district has held that a criminal
defendant’s pre-arrest silence is not afforded “conclusive protection.” See Martin v.
Jabe, 747 F. Supp. 1227, 1233 (E.D. Mich. 1989) (Duggan, J.). Further, a habeas
court cannot look to the decisions of this circuit, or other courts of appeals, when
deciding whether a state court’s decision was contrary to, or an unreasonable
application of, clearly established federal law. See Mitzel v. Tate, 267 F.3d 524,
530–31 (6th Cir. 2001). A habeas court may only look at the holdings of the United
States Supreme Court as they existed at the time of the relevant state court
decision to determine whether the state court decision was contrary to, or an
unreasonable application of, clearly established federal law. Id. Sixth Circuit
precedent thus does not constitute “clearly established Federal law, as determined
by the Supreme Court” and thus “cannot form the basis for habeas relief under [the]
AEDPA.” Parker v. Matthews, 132 S.Ct. at 2155. The Sixth Circuit has also noted
that the decision in Combs is not controlling on a case like Petitioner’s because
Combs is a pre-AEDPA decision and was therefore decided under a de novo
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standard of review, as opposed to the more deferential standard of review
enunciated by the AEDPA. See Jones v. Trombley, 307 F. App’x 931, 934, n.1 (6th
Cir. 2009).
In the present case, at least at the time of Petitioner’s trial, the United States
Supreme Court had not spoken dispositively on the issue of whether the use of a
criminal defendant’s pre-arrest silence as substantive evidence violates the Fifth or
Fourteenth Amendments.2 The Michigan Court of Appeals did not directly analyze
this question, finding that the one statement made regarding Defendant’s pre-arrest
silence had been duly objected-to and the objection sustained, thereby mitigating
any potential prejudice. Regardless, at the time of the Michigan Court of Appeals’
decision, clearly established Supreme Court precedent on the issue of using prearrest silence as substantive evidence of guilt did not exist. See Bond v.
McQuiggan, 506 F. App’x 493, 498 (6th Cir. 2012); Jones, 307 F. App’x at 934;
Mitchell v. Lafler, 118 F. App’x 24, 26–27 (6th Cir. 2004)3 Even if the Michigan
Court of Appeals had found the reference to Petitioner’s pre-arrest silence to be
permissible as direct evidence of guilt, the fact that the Supreme Court had not yet
addressed this issue, coupled with the then-existing “disagreement and confusion”
among the federal courts, would preclude this Court from finding that the Michigan
2 The Supreme Court indicated in Jenkins that their decision did not consider whether or under
what circumstances pre-arrest silence itself may be protected by the Fifth Amendment. Jenkins, 447
U.S. at 236, n.2.
3 Further, the Court notes that the Supreme Court recently held, in Salinas v. Texas, 133 S.Ct. 2174
(2013), that the use of pre-arrest silence as direct evidence of guilt is not a violation of a Defendant’s
Fifth Amendment rights.
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Court of Appeals’ decision was contrary to or an unreasonable application of clearly
established federal law.
Consequently, although in this case the evidence of Petitioner’s failure to call
911 or to inform the police at the time of his arrest that he had acted in self-defense
was offered as impeachment, and was not offered as substantive evidence of guilt, it
is clear that the decision of the Michigan Court of Appeals was not contrary to or an
unreasonable application of clearly established federal law.
3.
Alleged Violations of Fifth Amendment (Post-Arrest)
Petitioner next claims that the prosecutor improperly questioned Sergeant
Postma about Petitioner’s post-arrest, pre-Miranda silence. Sergeant Postma
testified that after Petitioner was arrested, but before his Miranda rights were read
to him, Sergeant Postma asked Petitioner if he was willing to talk, and Petitioner
responded, “about what?” Postma replied, “About what happened tonight.”
Petitioner responded “I don’t know what happened.” Postma then read Petitioner
his Miranda rights and Petitioner asked for an attorney. (Feb. 8, 2008 Tr., pp. 140–
42).
In the absence of any indication that a criminal defendant had received his
Miranda warnings, the use of post-arrest silence to impeach a defendant’s
credibility when that defendant chooses to take the witness stand does not violate
the Due Process Clause. See Fletcher v. Weir, 455 U.S. 603, 606–07 (1982). In
Fletcher, the Supreme Court held that it was not unconstitutional for a prosecutor
to use the defendant’s post-arrest silence for impeachment purposes, where the
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defendant testified at trial that he stabbed the victim in self-defense and that the
stabbing was accidental. Id. Similarly, the use of Petitioner’s post-arrest, preMiranda statement to impeach his self-defense claim did not violate his due process
rights.
Moreover, to the extent that the prosecutor used Petitioner’s pre-Miranda
statements as substantive evidence, he would still not be entitled to habeas relief.
The constitutionality of using a criminal defendant’s post-arrest, pre-Miranda
silence as substantive evidence has yet to be addressed by the United States
Supreme Court and remains the subject of disagreement among the federal circuit
courts.4 Therefore, the Michigan Court of Appeals’ decision to uphold Petitioner’s
conviction despite any use of his post-arrest, pre-Miranda silence as substantive
evidence was not contrary to or unreasonable application of clearly established
federal law, and thus it does not warrant federal habeas relief. See Jones v.
Trombley, 307 F. App’x at 933–34; Narlock v. Hofbauer, 118 F. App’x 34, 35 (6th Cir.
2004).
Petitioner further appears to argue that the prosecutor elicited evidence in
violation of Petitioner’s Fifth Amendment rights when Sergeant Postma testified
4 A number of circuits have held that it is permissible for a prosecutor to use a criminal defendant’s
silence after he or she is arrested, but before Miranda warnings have been given, as substantive
evidence; other circuits have refused to allow the use of such evidence. Compare United States v.
Frazier, 408 F.3d 1102, 1111 (8th Cir. 2005) (holding that when no governmental action induced
post-arrest, pre-Miranda silence, it could be introduced as evidence of guilt), United States v. Rivera,
944 F.2d 1563, 1568 (11th Cir. 1991) (prosecution may comment on a defendant’s post-arrest silence
prior to Miranda warnings being given), and United States v. Love, 767 F.2d 1052, 1063 (4th Cir.
1985) (same); with United States v. Moore, 104 F.3d 377, 385 (D.C. Cir. 1997) (introduction of
defendant’s pre-Miranda custodial silence violates the Fifth Amendment), and United States v.
Whitehead 200 F.3d 634, 638 (9th Cir. 2000) (same).
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that while still at the crime scene and after having been advised of his Miranda
rights, Petitioner suddenly blurted out “He didn’t get a chance to cut me, I’m as
guilty as a bitch.” (Feb. 8, 2008 Tr., pp. 141–42). Petitioner also points to a
statement that he made to Officer Jonathan Peters during booking in which he
informed the officer that he didn’t mean to kill the victim. (Id., p. 121).
It is a violation of the Due Process clause of the Fourteenth Amendment for
the prosecution to use a defendant’s post-arrest silence after he or she has been
given Miranda warnings to impeach exculpatory testimony given by the defendant
at trial. See Doyle v. Ohio, 426 U.S. 610, 619 (1976). In the present case though,
Petitioner appears to have acted voluntarily and spontaneously when he uttered
that he was “as guilty as a bitch” and later when he stated that he did not mean to
kill the victim. There is no indication that Sergeant Postma or Officer Peters were
interrogating Petitioner at the time that he made these statements. “[A] defendant
who voluntarily speaks after receiving Miranda warnings has not been induced to
remain silent. As to the subject matter of the statements, defendant has not
remained silent at all.” Anderson v. Charles, 447 U.S. 404, 408 (1980). Because
Petitioner chose to voluntarily utter these statements, the prosecutor’s questions to
Sergeant Postma and to Officer Peters concerning these remarks did not
impermissibly comment upon Petitioner’s post-arrest silence, but were instead
proper impeachment of Petitioner’s self-defense claim under Anderson. See Dye v.
Hofbauer, 197 F. App’x 378, 386 (6th Cir. 2006).
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Next, to the extent that the prosecutor (1) attempted to question various
witnesses about Petitioner’s invocation of his right to remain silent or (2) attempted
to comment on this silence, the judge sustained all of defense counsel’s objections to
these remarks. Because the trial judge sustained defense counsel’s objections to
these questions, this alleged prosecutorial misconduct did not deprive Petitioner of
a fair trial. See U.S. v. Galloway, 316 F.3d 624, 633 (6th Cir. 2003) (citing United
States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)).
4.
Shifting Burden of Proof as to Self Defense
Petitioner further claims that the prosecutor shifted the burden of proof to
him to prove that he acted in self-defense by bringing up in her closing argument
that Petitioner had failed to call 911 or otherwise inform the police that he had
acted in self-defense. This argument is also without merit.
The trial court instructed the jury that Petitioner was presumed innocent
and that the prosecutor had the burden of proving Petitioner’s guilt beyond a
reasonable doubt. The trial court further advised the jurors that the prosecutor had
to prove beyond a reasonable doubt that Petitioner did not act in self-defense. (Feb.
12, 2008 Tr., pp. 79–80, 90). The prosecution’s argument did not deprive Petitioner
of a fair trial because any prejudice arising from the comments was cured by the
trial court’s instructions as to the burden of proof. See Scott v. Elo, 302 F.3d 598,
603–04 (6th Cir. 2002).
Petitioner therefore is not entitled to habeas relief on his first claim.
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C.
Claim 2 – Improper Jury Instruction.
Petitioner next claims that the trial court gave a confusing jury instruction,
which indicated that self-defense was a valid defense to second-degree murder but
failed to explain that self-defense also applied to the lesser included offense of
voluntary manslaughter.5
The Michigan Court of Appeals rejected this claim:
The trial court carefully explained the applicability of self-defense,
underscoring the point that self-defense applied to the second-degree
murder count, and not to the CCW count. The trial court’s instructions
clearly provided that the jury had three options with respect to the
second-degree murder count: “You can either find the defendant not
guilty, you can find the defendant guilty of second-degree murder, or
you can find the defendant guilty of voluntary manslaughter.” The
trial court then explicitly stated, “self-defense is not a defense to Count
Two, carrying a concealed weapon, but it is a defense to Count One,
where second-degree murder is charged and voluntary manslaughter is
charged as a possible lesser offense.” The above sufficiently expresses
that self-defense is applicable to the entirety of count one, explicitly
including voluntary manslaughter as a lesser offense. Additionally,
there is no indication that the jury was confused regarding the trial
court’s instructions; rather, the jury’s notes to the trial court suggest
that they carefully scrutinized the evidence to determine, which of the
available options for count one applied to the instant case.
While the trial court could have used more precise language in
explaining that self-defense could excuse manslaughter, “even if there
are some imperfections, there is no basis for reversal if the instructions
adequately protected the defendant’s rights by fairly presenting to the
jury the issues to be tried.” People v. Martin, 271 Mich. App. 280, 337338; 721 N.W.2d 815 (2006). Examining the jury instructions as a
Respondent contends that Petitioner’s second claim is procedurally defaulted because Petitioner’s
trial counsel expressed satisfaction with the instructions as given. Petitioner claims that his trial
counsel was ineffective for failing to object to the jury instructions as given. Ineffective assistance of
counsel may establish cause for procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52
(2000). Given that the cause and prejudice inquiry for the procedural default issue merges with an
analysis of the merits of Petitioner’s defaulted claim, the Court will address the merits of the claim
directly. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
5
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whole, we conclude that the trial court's instructions fairly presented
the issues to be tried and sufficiently protected defendant’s rights.
People v. Aldrich, 246 Mich. App. 101, 124; 631 N.W.2d 67 (2001).
Pearson, No. 284708, Slip. Op. at *2–3.
The burden of demonstrating that an erroneous instruction was so prejudicial
that it will support a collateral attack upon the constitutional validity of a state
court conviction is even greater than the showing required in a direct appeal. The
question in such a collateral proceeding is whether the challenged instruction so
infected the entire trial that the resulting conviction violates due process, not
merely whether the instruction is undesirable, erroneous, or even “universally
condemned,” and an omission or incomplete instruction is less likely to be
prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S. 145,
154–55 (1977). The challenged instruction must not be judged in isolation but must
be considered in the context of the entire jury charge. Jones v. United States, 527
U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or deficiency in a jury
instruction does not by itself necessarily constitute a due process violation.
Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not enough that there
might be some “slight possibility” that the jury misapplied the instruction. Id. at
191. Federal habeas courts do not grant relief, as might a state appellate court,
simply because a jury instruction may have been deficient in comparison to a model
state instruction. Estelle v. McGuire, 502 U.S. 62, 72 (1991).
Here, Petitioner has failed to show that the jury instructions, when viewed in
their entirety, did not adequately advise the jury that self-defense was a defense to
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the lesser included offense of voluntary manslaughter as well as to the charged
offense of second-degree murder. Although the judge’s initial instruction on the law
of self-defense indicated that the defense applied to the charge of second-degree
murder without mentioning the manslaughter charge, the judge subsequently and
explicitly stated that self-defense was not a defense to the charge of carrying a
concealed weapon but was a defense to count one, where second-degree murder was
charged and where voluntary manslaughter was charged as a possible lesser
offense. (Feb. 12, 2008 Tr., p. 94). This instruction adequately informed the jurors
that self-defense was a defense to the lesser included offense of voluntary
manslaughter.
Petitioner is not entitled to habeas relief on his second claim.
D.
Claims 2, 3 and 4 – Ineffective Assistance of Counsel.
In a part of his second claim and in his third claim, Petitioner contends that
he was deprived of the effective assistance of trial counsel. In his fourth claim,
Petitioner alleges that he was deprived of the effective assistance of appellate
counsel. The Court will consolidate its discussion of Petitioner’s ineffective
assistance of counsel claims for the sake of clarity.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two-prong test. First, the
defendant must demonstrate that, considering all of the circumstances, 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
18
(1984). In so doing, the defendant must overcome a strong presumption that
counsel’s behavior lies within the wide range of reasonable professional assistance.
Id. In other words, Petitioner 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 performance prejudiced his
defense. Id. To demonstrate prejudice, the defendant must show 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’s
test for prejudice is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011) (quoting Harrington v. Richter, 131 S.Ct. at 792).
Strickland places the burden on the defendant claiming ineffective assistance
of counsel, 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, 130 S.Ct. 383, 390–91 (2009). The Strickland
standard applies as well to claims of ineffective assistance of appellate counsel. See
Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
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, 129 S.Ct. 1411, 1420 (2009) (quoting Schriro v.
Landrigan, 550 U.S. at 473). “The pivotal question is whether the state court’s
19
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, 131 S.Ct. at 785. 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, 129 S.Ct. at 1420
(citing Yarborough, 541 U.S. at 664). Pursuant to the standard set forth in §
2254(d)(1), a “doubly deferential judicial review” applies to a Strickland 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, 131 S.Ct. at 785. “Surmounting Strickland’s high bar is never
an easy task.” Id. at 788 (quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010)).
Because of this doubly deferential standard:
“Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). 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.”
Harrington v. Richter, 131 S.Ct. at 788.
Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’
to cast doubt on a trial that took place” over five years ago and a direct appeal that
concluded almost four years ago “is precisely what Strickland and AEDPA seek to
prevent.” Id. at 789.
20
1.
Trial Counsel – Failure to Object to Jury Instruction
As part of his second claim, Petitioner contends that his trial counsel was
ineffective for failing to object to the trial judge’s allegedly inadequate jury
instruction on the affirmative defense of self-defense. This Court has already
concluded that the jury instructions in their entirety adequately informed the jurors
that self-defense was a defense to the lesser included offense of voluntary
manslaughter as well as to the charged offense of second-degree murder. Because
the instructions on self-defense were adequate as given, counsel’s failure to object to
the instruction was not objectively unreasonable, and Petitioner cannot show that a
different instruction would likely have changed the outcome of his trial so as to
entitle him to habeas relief on his claim. See Jacobs v. Sherman, 301 F. App’x. 463,
466–67 (6th Cir. 2008).
2.
Trial Counsel – Direct Examination
In his third claim, Petitioner argues that his trial counsel was ineffective for
failing to fully question Petitioner during his direct examination concerning the
exact nature of the excited utterance that Petitioner made to Sergeant Postma.6
Respondent contends that Petitioner’s claim is procedurally defaulted because he raised it only for
the first time in his post-conviction motion for relief from judgment and failed to show cause and
prejudice, as required by M.C.R. 6.508(D)(3), for failing to raise the claim in his appeal of right. This
Court notes “a procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’
states that its judgment rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If
the last state court judgment contains no reasoning, but simply affirms the conviction in a standard
order, the federal habeas court must look to the last reasoned state court judgment rejecting the
federal claim and apply a presumption that later unexplained orders upholding the judgment or
rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991). The Michigan Court of Appeals and the Michigan Supreme Court rejected Petitioner’s postconviction appeal on the ground that “the defendant has failed to meet the burden of establishing
6
21
Sergeant Postma testified that while Petitioner was being swabbed by a forensic
officer for blood evidence at the crime scene, Petitioner blurted out “I’m as guilty as
a bitch.” Petitioner claims that Sergeant Postma asked him at the crime scene
whether he got a cut on his finger, to which Petitioner responded that the victim did
not get a chance to cut him. According to Petitioner, Postma then stated, “Oh, yeah,
he’s guilty alright,” to which Petitioner then responded, “Ain’t that a bitch, I’m
guilty.” Petitioner claims that he had spoken with trial counsel at the jail prior to
trial and agreed that Sergeant Postma’s claim that Petitioner had stated that he
was “guilty as a bitch” needed to be rebutted. Although counsel asked Petitioner at
trial on re-direct examination about the “cut me” statement, he did not specifically
ask Petitioner to clarify the statement about being “guilty as a bitch.”
Petitioner is not entitled to habeas relief on this claim. Petitioner has failed
to offer any compelling argument that his statement, “Ain’t that a bitch, I’m guilty”
was any less inculpatory than the statement that Sergeant Postma claims that he
made, namely, “I’m as guilty as a bitch.” Either statement could plausibly be
considered by the jury as an admission of guilt by Petitioner. Counsel’s decision not
to challenge Postma over this minor inconsistency was not ineffective assistance.
entitlement to relief under MCR 6.508(D).” These orders, however, did not refer to subsection (D)(3),
nor did they mention the Petitioner’s failure to raise this claim on his direct appeal as their rationale
for rejecting his post-conviction claim. Because the form orders in this case citing Rule 6.508(D) are
ambiguous as to whether they refer to procedural default or a denial of post-conviction relief on the
merits, the orders are unexplained. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). This
Court must “therefore look to the last reasoned state court opinion to determine the basis for the
state court’s rejection” of the Petitioner’s claims. Id. The trial court rejected Petitioner’s third claim
on the merits without mentioning M.C.R. 6.508(D)(3) or Petitioner’s failure to raise the claim on his
direct appeal. Because the last reasoned state court decision rejected Petitioner’s third claim on the
merits, this claim is not procedurally defaulted. Id. at 289, 292.
22
See Campbell v. United States, 364 F.3d 727, 735 (6th Cir. 2004). Trial counsel’s
alleged deficiency in failing to ask Petitioner a question on direct or re-direct
examination to rebut the “I’m guilty as a bitch” statement did not prejudice
Petitioner, thus, he has failed to show that he was deprived of the effective
assistance of trial counsel. See e.g. Chandler v. Jones, 813 F.2d 773, 782 (6th Cir.
1987).
Moreover, the state court previously rejected this exact argument on the
merits in its ruling on Petitioner’s motion for relief from judgment (Dkt. 13, Ex. 23,
Kent Cnty. Cir. Ct. Order, ¶ 9). And, as the Supreme Court reiterated very
recently, “where a case involves such a common claim as ineffective assistance of
counsel under Strickland—a claim state courts have now adjudicated in countless
criminal cases for nearly 30 years—‘there is no intrinsic reason why the fact that a
man is a federal judge should make him more competent, or conscientious, or
learned . . . than his neighbor in the state courthouse.’” Burt v. Titlow, Case No. 12414, Slip. Op. at *5–6, 571 U. S. --- (Nov. 5, 2013) (quoting Stone v. Powell, 428 U. S.
465, 494, n.35 (1976) (internal quotation marks omitted)). The state court’s
conclusion that counsel’s decision did not amount to ineffective assistance was well
supported and reasonable.
3.
Appellate Counsel
In his fourth claim, Petitioner contends that his appellate counsel was
ineffective for failing to raise on direct appeal a claim that trial counsel was
23
ineffective for failing to fully question Petitioner about his excited utterance to
Sergeant Postma.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal as of 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).
Further, “appellate 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 663, 676 (6th Cir.
2001)). This Court has already determined that Petitioner’s third claim—regarding
trial counsel’s questioning of Sergeant Postma—is without merit. Therefore,
appellate counsel was not ineffective in failing to raise this ground on Petitioner’s
direct appeal.
Petitioner is not entitled to habeas relief on any of his claims of ineffective
assistance of counsel.
IV.
CERTIFICATE OF APPEALABILITY
“The district court must 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.
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
24
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 Court will therefore 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 Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich.
2002). Further, if Petitioner elects to appeal this decision, this Court concludes that
Petitioner should not be granted leave to proceed in forma pauperis on appeal, as
any appeal would be frivolous. See Fed. R. App. P. 24(a).
V.
CONCLUSION & ORDER
Based upon the foregoing, the petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE.
Further, the motion for an evidentiary hearing (Dkt. 15) is DENIED.
Finally, Petitioner is DENIED a certificate of appealability, and
DENIED leave to appeal in forma pauperis.
SO ORDERED.
Dated: December 23, 2013
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
25
Certificate of Service
I hereby certify that this Order was electronically submitted on December 23,
2013, using the CM/ECF system; a copy of this Order was also mailed to 440724
Gus Harrison Correctional Facility, 2727 E. Beecher Street, Adrian, Michigan
49221, addressed to Petitioner’s attention.
s/A. Chubb
Case Manager
26
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