Cooper v. Palmer
Filing
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OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by Elrick Cooper; Denying a Certificate of Appealability, and Denying Leave to Proceed in forma pauperis on Appeal. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELRICK COOPER, #190929,
Petitioner,
CASE NO. 5:13-CV-15296
HONORABLE JOHN CORBETT O’MEARA
v.
CARMEN PALMER,
Respondent.
_________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.
Introduction
Michigan prisoner Elrick Cooper (“petitioner”) has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional
rights. The petitioner was convicted of armed robbery, MICH. COMP. LAWS § 750.529, and
possession of a firearm during the commission of a felony (“felony firearm”), MICH. COMP. LAWS
§ 750.227b, following a jury trial in the Saginaw County Circuit Court. He was sentenced to 25 to
50 years imprisonment on the armed robbery conviction and a consecutive term of two years
imprisonment on the felony firearm conviction in 2010.
In his pleadings, the petitioner raises claims concerning the sufficiency of the evidence for
his felony firearm conviction and the effectiveness of trial counsel relative to the jury instructions.
For the reasons set forth herein, the court finds that those claims lack merit and denies the habeas
petition. The court also denies a certificate of appealability and denies leave to proceed in forma
pauperis on appeal.
II.
Facts and Procedural History
The petitioner’s convictions arise from a party store robbery in Saginaw, Michigan on
October 8, 2007. The Michigan Court of Appeals provided a factual summary, which is presumed
correct on habeas review. See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009) (citing 28 U.S.C.
§ 2254(e)(1); Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff'd, 41 F. App'x 730
(6th Cir. 2002). Those facts are as follows:
On October 8, 2007, a man wearing a ski mask and appearing to wield a small
handgun robbed the Fast Lane Drive–Thru Party Store at 1200 State Street in
Saginaw. Police responded to the scene and, based on the reports of witnesses who
observed the robber flee the scene, were able to track defendant down at a nearby
apartment. While a search of this apartment was conducted, defendant was detained.
Police found money hidden behind the refrigerator and inside a fuse box, as well as
a number of items lying on the ground outside an open bathroom window, including
a ski cap and a small handgun. Defendant was then taken into custody.
At trial, the prosecution presented DNA evidence from sweat found on the ski cap,
handgun, and a “do rag.” Although the results from the handgun were inconclusive,
the results from the cap and do rag were highly consistent with defendant's DNA.
The forensic scientist who collected the DNA swabs from the handgun and the other
items also testified that the trigger on the handgun had been welded shut and that, to
her knowledge, the operability of the handgun had not been tested by the police.
Defendant was convicted as charged . . . .
People v. Cooper, No. 296677, 2011 WL 6785982, *1 (Mich. Ct. App. Dec. 27, 2011)
(unpublished).
Following his convictions and sentencing, the petitioner filed an appeal of right with the
Michigan Court of Appeals raising the same claims presented on habeas review. The court
determined that the claims lacked merit and affirmed the petitioner’s convictions. Id. at *1-2. The
petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was
denied in a standard order. People v. Cooper, 493 Mich. 917, 823 N.W.2d 568 (2012).
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The petitioner thereafter filed his federal habeas petition raising the following claims as
grounds for relief:
I.
He was deprived of his constitutional right to due process of law by being
convicted of possession of a firearm during the commission of a felony where
the “firearm” possessed had been modified permanently by welding the
trigger mechanism in place.
II.
He was deprived of the effective assistance of counsel by his attorney’s
failure to request an instruction to the jury that either defined “firearm” in the
language of MCL 750.22(d) or the language of the Supreme Court in Peals,
including that concerning substantial alteration in footnote 7.
The respondent has filed an answer to the petition contending that it should be denied because the
claims lack merit.
III.
Standard of Review
Federal law imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim –
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d).
“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
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curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S.
685, 694 (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. “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)).
The United States Supreme Court has held that “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, _ U.S. _, 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)). 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
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Court. Id. Thus, in order to obtain federal habeas relief, 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.
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 ‘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, 538 U.S. at 7172. 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, 131 S. Ct. at 785. 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 state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the
requirements of “clearly established law” are to be determined solely by Supreme Court precedent,
the decisions of lower federal courts 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).
Lastly, a state court’s factual determinations are presumed correct on federal habeas review.
See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing
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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, _ U.S. _, 131 S. Ct.
1388, 1398 (2011).
IV.
Analysis
A.
Sufficiency of the Evidence Claim
The petitioner first asserts that he is entitled to habeas relief because the prosecution
presented insufficient evidence to support his felony firearm conviction. In particular, the petitioner
argues that the firearm had been modified by welding the trigger mechanism in place such that it was
inoperable and was not a firearm as defined by state law.
The federal due process clause “protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency of the evidence claim is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). A federal habeas court views this standard through the
framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus,
under the AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on habeas review –
the factfinder at trial and the state court on appellate review – as long as those determinations are
reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Furthermore, the Jackson standard
must be applied “with explicit reference to the substantive elements of the criminal offense as
defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443
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U.S. at 324 n. 16). “A reviewing court does not re-weigh the evidence or re-determine the
credibility of the witnesses whose demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434
(1983)). Accordingly, the “mere existence of sufficient evidence to convict . . . defeats a petitioner’s
claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, the elements of felony firearm are that the defendant possessed a
firearm during the commission of, or an attempt to commit, a felony offense. MICH. COMP. LAWS
§ 750.227b; People v. Akins, 259 Mich. App. 545, 554, 675 N.W.2d 863, 873 (2003) (quoting
People v. Avant, 235 Mich. App. 499, 505, 597 N.W.2d 864, 869 (1999)). Operability is not an
element of the offense. See People v. Peals, 476 Mich. 636, 642, 720 N.W.2d 196, 199 (2006)
(ruling that a felony firearm conviction does not require proof that the firearm was “operable” or
“reasonably or readily operable” but requires only that the weapon “be of a type that is designed or
intended to propel a dangerous projectile”). Direct or circumstantial evidence and reasonable
inferences arising from that evidence may constitute satisfactory proof of the elements of an offense.
People v. Nowack, 462 Mich 392, 399-400, 614 N.W.2d 78, 81 (2000); People v. Jolly, 442 Mich.
458, 466, 502 N.W.2d 177, 180 (1993).
The Michigan Court of Appeals denied relief on this claim. The court explained:
Defendant first argues on appeal that he could not be legally convicted of
felony-firearm because the trigger mechanism on the weapon had been welded shut.
We disagree. MCL 750.222(d) defines “firearm” in part as “a weapon from which
a dangerous projectile may be propelled by an explosive, or by gas or air.” Thus, the
statute does not require the current operability of the weapon.” People v. Peals, 476
Mich. 636, 653; 720 NW2d 196 (2006). Defendant relies on obiter dictum from
Peals to assert that his inoperable weapon does not constitute a firearm under MCL
750.222(d). In footnote seven, the Supreme Court recognizes that there could be
situations where an inoperable firearm would not satisfy the statutory definition
because of the design or alteration:
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While the statute does not contain an operability requirement, it is
possible that a firearm could be so substantially redesigned or altered
that it would cease to be a “firearm” under the statutory definition. It
would no longer be a weapon whose design was such that a
dangerous projectile “may be propelled” by an explosive, gas, or air.
For example, an antique cannon plugged with cement on display in
a park would not constitute a “firearm” under MCL 750.222(d). That
is because the cannon has been converted into an ornamental display,
and it is no longer the type of weapon that is used or designed to
propel dangerous projectiles by an explosive or by gas or air. We
emphasize, however, that the operability of the weapon is not the
statutory test; rather, the question is whether the weapon has been so
substantially redesigned or altered that it no longer falls within the
category of weapons described in MCL 750.222(d). [Id. at 652 n 7.]
Unlike the hypothetical cannon referred to in Peals, however, the handgun in this
case had not been redesigned or altered in a way to remove it from the statutory
definition. “That a gun is inoperable does not alleviate the extreme danger posed by
its possession in these circumstances.” Id. at 653.
Cooper, 2011 WL 6785982 at *1-2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented sufficient evidence
to establish the petitioner’s guilt of felony firearm through the testimony of the robbery victims and
other witnesses, as well as reasonable inferences from that testimony. A victim’s testimony alone
can be constitutionally sufficient to sustain a conviction. See Tucker v. Palmer, 541 F.3d 652, 658
(6th Cir. 2008) (citing cases). Considered in a light favorable to the prosecution, such evidence was
sufficient to show that the petitioner used a firearm during the commission of the crime.
The petitioner asserts that the prosecution failed to prove that the gun was operable and still
constituted a firearm under the felony firearm statute due to its welded trigger. As discussed supra,
however, Michigan law does not require a showing of operability and only requires a showing that
the weapon “be of a type that is designed or intended to propel a dangerous projectile.” Peals, 476
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Mich. at 642, 720 N.W.2d at 199. As the state appellate court found, the recovered handgun, even
with a welded trigger, had not been so re-designed or altered in a way to remove it from the statutory
definition of a firearm. In short, the handgun still constituted a firearm under state law. It is wellsettled that “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.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (state courts are the final
arbiters of state law); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). The victims’ and the
other witnesses’ testimony provided sufficient evidence to establish that the weapon was a firearm
within the meaning of the felony firearm statute. The jury’s verdict, and the Michigan Court of
Appeals’ decision affirming that verdict, were reasonable. The evidence presented at trial, viewed
in a light favorable to the prosecution, established beyond a reasonable doubt that the petitioner
committed the crimes of which he was convicted, including felony firearm. Habeas relief is not
warranted on this claim.
B.
Ineffective Assistance of Counsel Claim
The petitioner relatedly asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing to request a jury instruction that either defined “firearm” in the language of
MICH COMP LAWS § 750.222(d) or in the language of the Michigan Supreme Court’s decision in
Peals, including the substantial alteration language of footnote 7.
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
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
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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 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 disputed 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, 131 S. Ct. at 788 (internal and
end citations omitted). “When § 2254(d) applies, the question is not whether counsel’s actions were
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reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. at 788.
The Michigan Court of Appeals denied relief on this claim. The court stated:
Because the handgun used by defendant constitutes a firearm under MCL
750.222(d), we necessarily reject defendant’s assertion that counsel rendered
ineffective assistance by failing to request that the jury be instructed that the weapon
used by defendant met the substantial alteration exception carved out in Peals. See
People v. Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).FN1
FN1. Derivative of his argument with respect to Peals, defendant
refers to instructing the jury using the language of MCL 750.222(d).
Having failed to show that the dictum of footnote seven is applicable,
the court’s instructing in accord with the statute and its judicial
interpretation was not erroneous. See People v. McGhee, 268 Mich
App 600, 606; 709 NW2d 595 (2005).
Cooper, 2011 WL 6785982 at *2.
The state court’s decision is neither contrary to United States Supreme Court precedent nor
an unreasonable application of federal law or the facts. The petitioner cannot demonstrate that trial
counsel erred and/or that he was prejudiced by counsel’s conduct given the state court’s
determination that the weapon used was a firearm within the meaning of the felony firearm statute.
Counsel cannot be deemed deficient for failing to make a futile or meritless request. 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).
Moreover, the record reveals that the trial court properly instructed the jury on the elements of the
offenses, including felony firearm. The petitioner fails to establish that trial counsel was ineffective
under the Strickland standard. Habeas relief is not warranted on this claim.
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V.
Conclusion
For the reasons stated, the court concludes that the petitioner’s claims lack merit and that the
habeas petition must be denied.
Before the 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 applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district 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 constitutional 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.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). Having conducted the requisite review, the court concludes that the
petitioner fails to make a substantial showing of the denial of a constitutional right. No certificate
of appealability is warranted. Nor should the petitioner be granted leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to
proceed in forma pauperis on appeal is DENIED.
s/John Corbett O’Meara
United States District Judge
Date: May 1, 2015
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I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, May 1, 2015, using the ECF system and/or ordinary mail.
s/William Barkholz
Case Manager
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