Cook v. Haas et al
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; and Declining to Issue a Certificate of Appealability or Leave to Appeal in forma pauperis, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 5:13-12171
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
David Cook, (“Petitioner”), confined at the Chippewa Correctional Facility in
Kincheloe, 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 first-degree
premeditated murder, M.C.L.A. 750.316. For the reasons stated below, the application
for writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Macomb County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan 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):
A jury convicted defendant David Anthony Cook of first-degree premeditated
murder, MCL 750.316(1)(a), for bludgeoning his live-in girlfriend with a
vacuum cleaner and suffocating her with a garbage bag. Defendant admitted
to killing the victim in this manner but argued that he committed the crime in
the “heat of passion.” Despite defendant’s claim to the contrary, the trial court
correctly determined that the evidence did not support defendant’s requested
voluntary manslaughter instruction. Defendant’s contention that the trial court
violated his rights by empanelling an “anonymous jury” is similarly baseless.
Accordingly, we affirm defendant’s conviction and sentence of life
imprisonment without the possibility of parole.
On the night of December 12, 2009, defendant killed his live-in girlfriend, the
mother of his two children. Defendant told police that he and the victim had
a heated argument that evening after the victim accused him of inappropriately
kissing her aunt. The victim threw a beer bottle at defendant, striking him in
the side, and then charged at him from across the room. Defendant indicated
that he punched the victim in the face, knocking her to the floor. He then
straddled her and struck her several more times in the face with his fist,
rendering her unconscious. When the victim regained consciousness and tried
to arise, defendant smashed her head repeatedly with a vacuum cleaner, nearly
severing her ear.
Believing that he had killed the victim, defendant transported her body to their
bed. Defendant sat on a chair at the foot of the bed to think, but “he didn’t like
looking at the blood on [the victim’s] face.” Defendant used a large plastic
garbage bag to cover the victim’s head and torso and continued to watch her.
After a period of time, the victim moved her hand toward the bag and tried to
remove it. At that point, defendant fastened the bag to the victim’s face using
duct tape and also bound her hands. Defendant then sat back in the chair and
waited for the victim to stop moving. He told police that “he didn't want to get
in trouble ... he wanted [the victim] more or less dead.” Defendant placed the
victim’s body in the trunk of his car with the intention of dumping it later, but
the car’s axle broke when he tried to move it. The victim’s body remained in
the trunk for approximately four weeks until it was discovered during the
police investigation. The medical examiner conducted an autopsy and
confirmed defendant’s story that the victim had suffered severe blunt-force
trauma to the head, but ultimately died of asphyxiation due to suffocation.
Specifically, the medical examiner testified that the victim died as a result of
a plastic bag being placed over her head and secured with duct tape.
People v. Cook, No. 300321, * 1-2 (Mich.Ct.App. January 17, 2012).
Petitioner’s conviction was affirmed on appeal. Id., lv. Den. 491 Mich. 944, 815
N.W.2d 444 (2012).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court violated Appellant’s due process rights by empanelling a jury
whose members were referred to only by juror numbers and by failing to give
a proper cautionary instruction.
II. The trial court violated Appellant’s due process right to present a defense
by refusing to instruct the jury on voluntary manslaughter where there was
evidence the decedent provoked Appellant by throwing a beer bottle and
accusing Appellant of inappropriately kissing her aunt. 1
II. Standard of Review
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
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–
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
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
Due to the brevity of the petition for writ of habeas corpus, this Court is willing to incorporate the
arguments raised in petitioner’s state appellate court brief [This Court’s Dkt. # 10-3] which petitioner refers to in his
habeas petition as being part of petitioner’s application for writ of habeas corpus. See e.g. Burns v. Lafler, 328 F.
Supp. 2d 711, 717, n. 2. (E.D. Mich. 2004).
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 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, 559 U.S. 766,
773 (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, 131 S.
Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court 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, 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. Habeas relief is not appropriate unless each ground which supported
the state court’s decision is examined and found to be unreasonable under the AEDPA.
See Wetzel v. Lambert, 132 S. Ct. 1195, 1199 (2012).
“[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, 131 S. Ct. at 786-87.
A. Claim # 1. The anonymous jury claim.
Petitioner first argues that his due process rights were violated during voir dire,
when the trial judge referred to each of the jurors by their number and not by name,
employing what is commonly known as an anonymous jury.
The United States Supreme Court has never held that jurors must be referred to by
their name and not by number during the jury selection process. Although the Sixth
Amendment to the federal constitution guarantees criminal defendants a right to a public
trial by an impartial jury, there is no constitutional right to a public jury. See U.S. v.
Lawson, 535 F. 3d 434, 440 (6th Cir. 2008). “Thus, the text of the Constitution does not
warrant holding that defendants have a right to be informed of jurors’ identities.” Id.
Indeed, evidence from the time of the drafting of the constitution suggests that such a
right to have jurors identified was not intended to be part of the federal constitution. Id.
at 440-41 (citing Kory A. Langhofer, Comment, Unaccountable at the Founding: The
Originalist Case for Anonymous Juries, 115 Yale L.J. 1823, 1826-31 (2006)). Given the
lack of holdings by the Supreme Court on the issue of whether it is permissible to use an
anonymous jury, the Michigan Court of Appeals’ rejection of petitioner’s claim was not
an unreasonable application of clearly established federal law. See Wright v. Van Patten,
552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 ( 2006); See also
Thompson v. Runnells, 208 Fed. Appx. 571, 572 (9th Cir. 2006)(petitioner not entitled to
habeas relief involving his constitutional challenges to the state trial court’s use of an
anonymous jury, because he failed to show that the California Court of Appeal’s
decision upholding the use of the anonymous jury was contrary to clearly established
United States Supreme Court precedent). Although petitioner cites in his state appellate
court brief to the Fifth Circuit case of United States v. Sanchez, 74 F. 3d 562 (5th Cir.
1996) in support of his claim, the AEDPA standard of review found in 28 U.S.C. § 2254
(d)(1) prohibits the use of lower court decisions in determining whether the state court
decision is contrary to, or an unreasonable application of, clearly established federal law.
Miller v. Straub, 299 F. 3d 570, 578-579 (6th Cir. 2002). Fifth Circuit precedent 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. 2148, 2155 (2012). Petitioner is not entitled to habeas relief on his first claim.
B. Claim # 2. The lesser included instruction claim.
Petitioner next contends that the trial court erred in refusing to instruct the jurors
on the lesser included offense of voluntary manslaughter.
The United States Supreme Court has declined to determine whether the Due
Process Clause requires that a state trial court instruct a jury on a lesser included offense
in a non-capital case. See Adams v. Smith, 280 F. Supp. 2d 704, 717 (E.D. Mich.
2003)(citing to Beck v. Alabama, 447 U.S. 625, 638, n. 4 (1980)). Thus, a state trial
court’s failure to give the jury an instruction on a lesser included offense in a non-capital
case is not contrary to, or an unreasonable application of, clearly established federal law
as required for federal habeas relief. Id.; See also David v. Lavinge, 190 F. Supp. 2d 974,
986, n. 4 (E.D. Mich. 2002). Beck has been interpreted by the Sixth Circuit to mean that
“the [federal] Constitution does not require a lesser-included offense instruction in noncapital cases.” Campbell v. Coyle, 260 F. 3d 531, 541 (6th Cir. 2001). Thus, the failure
of a state trial court to instruct a jury on a lesser included offense in a non-capital case is
not an error cognizable in federal habeas review. Bagby v. Sowders, 894 F. 2d 792, 797
(6th Cir. 1990).
Although petitioner was charged with, and convicted of, first-degree murder,
which carries a sentence of life imprisonment without parole, petitioner was not facing a
capital conviction within the meaning of Beck that would entitle him to a jury instruction
on any lesser included offenses. In Scott v. Elo, 302 F. 3d 598, 606 (6th Cir. 2002), the
Sixth Circuit held that a criminal defendant who had been convicted of first-degree
murder in Michigan and had been sentenced to life imprisonment without parole was not
entitled to habeas relief based upon the trial court’s failure to instruct on the lesser
offense of involuntary manslaughter. In so ruling, the Sixth Circuit characterized the
defendant’s first-degree murder charge as being a conviction for a non-capital offense.
Id.; See also Tegeler v. Renico, 253 Fed. Appx. 521, 524-25 (6th Cir. 2007)(due process
did not require jury instruction on the lesser-included offense of voluntary manslaughter
in prosecution for first-degree premeditated murder, where petitioner received a
nonparolable life sentence).
In any event, as the Michigan Court of Appeals indicated in rejecting petitioner’s
claim, a rational view of the evidence did not support the giving of an instruction on
A rational view of the record evidence simply does not support that defendant
killed the victim in the heat of passion. Defendant avers that the victim
adequately provoked his “heat of passion” during their argument and by
striking him with a beer bottle. Although tenuous, a jury arguably could
conclude that defendant acted in the heat of passion when he responded by
punching the victim and striking her with a vacuum. However, the victim did
not die as a result of this savage beating. Rather, the medical examiner
testified that the victim was suffocated to death with a garbage bag.
Defendant admitted that there was a lapse of time after he laid the victim on
the bed and covered her face with a garbage bag but before he realized that
the victim was still alive. Defendant admitted that he reflected on his actions
during that time. This was a “reasonable time ... for the blood to cool and
reason to resume its habitual control. People v. Townes, 391 Mich. 578, 590;
218 NW2d 136 (1974). Defendant also admitted that he then sealed the bag
around the victim’s head to kill her and prevent discovery of his crime (likely
only assault with intent to murder), not out of a temporary rage. Defendant
then sat in a chair and watched while the victim suffocated to death. The
passage of time combined with defendant’s methodical actions to eradicate
the sole witness against him shows “deliberation and reflection,” not a person
“act[ing] out of a temporary excitement.” Id. Based on the record evidence,
no reasonable jury could conclude that defendant lacked malice when he
suffocated the victim, thus mitigating his crime to manslaughter.
Accordingly, the trial court properly denied defendant’s request for the lesser
included offense instruction.
Cook, Slip. Op. at * 3-4 (emphasis original).
Under Michigan law, a defendant is guilty only of voluntary manslaughter if he
“killed in the heat of passion, the passion was caused by adequate provocation, and there
was not a lapse of time during which a reasonable person could control his passions.”
Ruelas v. Wolfenbarger, 580 F. 3d 403, 413 (6th Cir. 2009)(quoting People v. Mendoza,
468 Mich. 527, 535, 664 N.W.2d 685 (2003)). Because the evidence in this case did not
rationally support a finding that petitioner was acting under the heat of passion when he
suffocated the victim, the failure to instruct the jury on the lesser offense of voluntary
manslaughter did not deprive petitioner of a fair trial. See Todd v. Stegal, 40 Fed. Appx.
25, 29 (6th Cir. 2002). Petitioner is not entitled to habeas relief on his second claim.
The Court will deny the petition for writ of habeas corpus. The Court will also
deny a certificate of appealability to petitioner. 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 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 he has failed to make a substantial showing of the denial of a
federal constitutional right with respect to any of the claims. The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See
Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
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 Petitioner will be DENIED leave to appeal in
s/John Corbett O’Meara
United States District Judge
Date: January 23, 2014
I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, January 23, 2014, using the ECF system and/or ordinary mail.
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