Conley v. Rapelje
Filing
10
MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus with Prejudice, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Antoine Conley,
Petitioner,
v.
Case No. 14-cv-11464
Judith E. Levy
United States District Judge
Lloyd Rapelje,
Mag. Judge R. Steven Whalen
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS [1] WITH PREJUDICE, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Antoine Conley filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions
of unlawful imprisonment, felonious assault, domestic violence (third
offense), felon in possession of a firearm, and possession of a firearm
during a felony. For the reasons set forth below, the petition is denied.
I.
Background
This Court recites verbatim the relevant facts relied on 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).
This 2011 prosecution stems from events occurring on or
about 2011 New Year’s Day. Early in the morning of
January 1, 2011, the victim, defendant’s girlfriend, was
spotted on the side of road by a passing motorist. She told
the motorist that defendant had beaten her, and she asked
to be taken to her mother’s home. The victim’s mother
testified that her daughter said defendant beat her with a
gun, tore off her clothes, and forced her into a closet at her
residence. The police were called and arrived thereafter. A
police officer testified that the victim told him how defendant
had beaten her with his fists and a gun, how he had torn off
her clothing, and how he had forced her into a closet and
would not allow her to leave. At the hospital, the same
officer asked her to write out her prior statement, which she
did. The emergency room physician who attended to the
victim testified that her injuries were consistent with bluntforce trauma. Defendant was subsequently apprehended as
he slept at the victim’s residence. A loaded semiautomatic
pistol was found under his bed. Bullets were found in a
crawlspace, and one was found in a child’s car seat.
At trial, the victim testified to a lack of memory of the events
of New Year’s. She believed she had been intoxicated at the
time. She recognized her handwritten police statement but
testified to a lack of memory with respect to writing it. She
did remember, however, that a police officer told her that he
would not leave the hospital until she wrote out a statement.
She denied that the officer told her what to write. . . .
2
Testimony introduced at trial indicated that defendant
assaulted the victim sometime between 2 a.m. and 4 a.m.
and that until she fled, she was in a closet and threatened
with further violence if she left the closet. Defendant had
also been brandishing a loaded gun. Around 7 a.m., a
motorist saw the victim on the side of the road trying to flag
someone down. He described her as disheveled, disoriented,
and “[s]omewhat hysterical.” He then drove her to the home
of her mother, who described her daughter as crying and
half-dressed, with her “hair falling out” and her eyes swollen
nearly shut. The victim’s mother believed that the victim
was panicked and scared, not knowing what to do.
Subsequently, the victim was interviewed by a police officer,
who described her as shaking and crying with marks,
bruises, and cuts on her. There was no evidence that the
victim engaged in ordinary activities, consulted others, or
contemplated her story between the assault and her
disclosures.
People v. Conley, No. 304309, 2012 Mich. App. LEXIS 2053, at *1-2, 5-6
(Mich. Ct. App. Oct. 18, 2012).
Petitioner was convicted by a jury in St. Clair County Circuit
Court of unlawful imprisonment, MICH. COMP. LAWS § 750.349b,
felonious assault, MICH. COMP. LAWS § 750.82, assault and battery of an
individual with whom he has or has had a dating relationship, third
offense, MICH. COMP. LAWS § 750.81(4), felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and possession of a firearm during the
3
commission of a felony (“felony firearm”).
750.227b.
(See Dkt. 8-6.)
MICH. COMP. LAWS §
On May 9, 2011, he was sentenced, as
enhanced by habitual offender, fourth, to concurrent prison terms of
fifteen to twenty-five years for unlawful imprisonment, three to fifteen
years for felonious assault imprisonment, three to fifteen years for
domestic violence imprisonment, and six to ten years for felon in
possession of a firearm imprisonment. (Dkt. 8-7 at 8-9.) He was also
sentenced to two years for felony firearm, to run consecutive to the
unlawful imprisonment, felonious assault, and felon in possession
sentences. (Id. at 9.)
Petitioner filed an appeal of right in the Michigan Court of
Appeals, arguing that: the victim’s hearsay statements were improperly
admitted; there was insufficient evidence to support a conviction of
unlawful imprisonment; there were evidentiary errors; the prosecutor
committed misconduct; the trial court erred in denying motion to
suppress; and the victim’s written statement was improperly admitted.
(Dkt. 8-8 at 8-31.) The Michigan Court of Appeals denied Petitioner’s
claims and affirmed his convictions and sentences. Conley, 2012 Mich.
App. LEXIS 2053, at *18.
4
Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims that he raised in the Michigan
Court of Appeals. (Dkt. 8-9 at 2-19.) The Michigan Supreme Court
summarily denied leave to appeal.
People v. Conley, 494 Mich. 852
(2013).
Petitioner then filed the pending habeas petition, raising two
claims he previously raised in the state courts: the prosecutor
committed misconduct during her closing argument; and there was
insufficient evidence to convict for unlawful imprisonment. (See Dkt. 1.)
II.
Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can
order habeas relief only if the state’s adjudication of a 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).
When applying these standards, this Court is to examine the holdings of
5
the Supreme Court as they existed at “the time of the relevant statecourt decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
The
district court can, however, “look to decisions of other courts to
determine whether a legal principle has been clearly established by the
Supreme Court.” Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009);
Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004).
“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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). “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. at 103
(internal quotation omitted).
III.
Analysis
a. Prosecutorial misconduct claim
Petitioner argues that the prosecutor committed misconduct
during her closing argument. According to Petitioner, the prosecutor
incorrectly “stated that [the victim]’s injuries were consistent with
6
‘blunt
force
trauma
as
inflicted
with
this
pistol,’”
which
unconstitutionally prejudiced him. (Dkt. 1 at 22.) The Michigan Court
of Appeals denied this same claim on the merits:
At trial, the emergency-room physician testified that the
victim’s wounds were “consistent with most likely some sort
of blunt force trauma.” During closing argument, the
prosecutor stated,
[The physician] testified that [the victim’s]
wounds were consistent with blunt force trauma,
not a fist fight, not with bumping into a chair or
a table, but with blunt force trauma. Blunt force
trauma as inflicted with this pistol.
In reviewing the actual remarks in context, we find no
grounds for reversal. The prosecutor was free to argue that
the doctor’s finding that the wounds were consistent with
blunt force trauma confirmed the victims statement to the
police as well as her written statement.
In any event, even if [] it could be construed that the
prosecutor was misstating the essence of the physician’s
testimony, the jury was properly instructed that it alone was
to decide the facts of the case based on admissible evidence,
where “[t]he lawyers’ statements and argument are not
evidence” and that the jury “should only accept things the
lawyers say that are supported by the evidence or by your
own common sense and general knowledge.” Because “[i]t is
well established that jurors are presumed to follow their
instructions,” People v Graves, 458 Mich 476, 486; 581 NW2d
7
229 (1998), even if there were any inappropriate remarks,
the instructions to the jury cured any error.
Conley, 2012 Mich. App. LEXIS 2053, at *15-16.
The Court has reviewed the record, and the facts as written by the
state court are accurate. (See Dkts. 8-4 at 140 (doctor’s trial testimony),
8-5 at 152 (prosecutor’s closing argument related to doctor’s trial
testimony).)
record.
In fact, Petitioner also quotes those same parts of the
(See Dkt. 1 at 22.)
Based on these facts, the state court’s
decision on the merits was not unreasonable.
The prosecutor essentially argued in closing that the victim’s
injuries were consistent with being struck by a pistol, which was a
reasonable inference from the physician’s testimony that the injuries
were consistent with blunt force trauma.
“A prosecutor may argue
reasonable inferences from the evidence at closing argument.” Amos v.
Renico, 683 F.3d 720, 730 (6th Cir. 2012). And as noted by the state
court, the jury was instructed that the prosecutor’s arguments could not
be evidence. Minor improprieties in a closing argument—which in any
case does not seem to be the situation here—can be corrected by a jury
instruction that closing arguments are not evidence. United States v.
Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011). Fairminded jurists could
8
disagree on the correctness of the state court’s decision. Thus, habeas
relief cannot be granted on this claim.
b. Sufficiency of the evidence claim
Petitioner argues that there was insufficient evidence to convict
him of “knowingly restrain[ing] another person . . . . by means of a
weapon or dangerous instrument.”
COMP. LAWS § 750.349b(1)(a)).)
(Dkt. 1 at 29-38 (quoting MICH.
According to Petitioner, the victim’s
out-of-court statements, introduced at trial through the testimony of
other witnesses, were hearsay from “an[] unreliable source” that should
not have been admitted at trial. (Id. at 35-38.) Petitioner argues that
because the victim’s statements were inconsistent and otherwise
unreliable, they were thus insufficient to support the central allegations
of the charge. (Id. at 32-35.) Notably, Petitioner “does not contest . . . .
that the jury could have drawn reasonable inferences from the facts
that he could have possessed a dangerous weapon.” (Dkt. 1 at 31.)
As to the hearsay argument, Petitioner made these arguments on
direct appeal. The Michigan Court of Appeals rejected the claim on the
merits:
Defendant first argues that the trial court erred in admitting
testimony by the motorist and the victim’s mother regarding
9
what the victim told them on January 1. We disagree, and
conclude that the trial court properly admitted these
statements under the “excited utterance” exception to the
hearsay rule, MRE 803(2). A trial court’s decision on an
evidentiary issue is reviewed for an abuse of discretion.
People v Holtzman, 234 Mich App 166, 190; 593 NW2d 617
(1999). The trial court does not abuse its discretion when its
decision in within the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003). . . .
Testimony introduced at trial indicated that defendant
assaulted the victim sometime between 2 a.m. and 4 a.m.
and that until she fled, she was in a closet and threatened
with further violence if she left the closet. Defendant had
also been brandishing a loaded gun. Around 7 a.m., a
motorist saw the victim on the side of the road trying to flag
someone down. He described her as disheveled, disoriented,
and “[s]omewhat hysterical.” He then drove her to the home
of her mother, who described her daughter as crying and
half-dressed, with her “hair falling out” and her eyes swollen
nearly shut. The victim’s mother believed that the victim
was panicked and scared, not knowing what to do.
Subsequently, the victim was interviewed by a police officer,
who described her as shaking and crying with marks,
bruises, and cuts on her. There was no evidence that the
victim engaged in ordinary activities, consulted others, or
contemplated her story between the assault and her
disclosures. See People v Hackney, 183 Mich App 516, 525526; 455 NW2d 358 (1990); People v Petrella, 124 Mich App
745, 759-761; 336 NW2d 761 (1983).
10
Defendant first claims that the excited utterance exception
does not apply because of the elapse of time between the
alleged incident and the making of the statements.
However, contrary to defendant’s claim, the evidence
demonstrated that the victim was still under the influence of
the stressful event at the time she made her out-of-court
statements. The trial court, therefore, did not abuse its
discretion in admitting the statements under the excited
utterance exception.
Defendant further argues that the victim’s statements to her
mother were the product of conscious reflection with the
capacity to fabricate because they came in response to
questioning by the mother. However, statements are not
rendered inadmissible under the excited utterance exception
merely because they were made in response to questions.
Smith, 456 Mich at 553. As we noted earlier, the key focus is
whether the statement was made under the stress of the
underlying event. Id. at 553-554. Here, the victim’s mother
did not definitively testify that she questioned the victim
when she showed up at her home. Instead, when asked
whether she had asked her daughter what had happened to
her, the victim’s mother responded that her daughter told
her defendant had assaulted her. Nonetheless, even if the
witness had asked “what happened,” the question did not
require the victim to set aside her emotional state to reflect
on what transpired. In short, “there is nothing about the
mother’s inquiries in the present case that undermines
confidence in the conclusion that the complainant’s
statement resulted from the stress of the assault and not
from the ‘stress’ of [her] mother’s inquiries.” Id. at 554.
Conley, 2012 Mich. App. LEXIS 2053, at *2-7.
11
To be sure, the several hours that elapsed between the time the
victim fled Petitioner and the time that she made her statements to
others
allow
confabulation.”
for
the
“possibility
of
fabrication,
coaching,
Idaho v. Wright, 497 U.S. 805, 820 (1990).
or
But on
habeas review under AEDPA, this Court reviews whether fair minded
jurists could disagree regarding the state court’s decision.
The state court reasoned that the victim was still under the stress
of the underlying event when she made her statements to the other
witnesses.
According to the state court, the victim was disheveled,
disoriented, and hysterical when she made her statements to the
motorist who testified. And she was crying and seemed panicked and
scared, not knowing what to do, when she made her statements to her
mother.
Finally, she was shaking and crying when she made her
statements to the police officer, and there was no evidence that the
victim engaged in ordinary activities, consulted others, or contemplated
her story between the assault and her disclosures.
Here, fair minded jurists could disagree that this evidence was
sufficient to overcome the hearsay issues, and thus habeas relief cannot
be based on the trial court’s admission of this testimony.
12
See, e.g.,
United States v. Arnold, 486 F.3d 177, 212 (6th Cir. 2007) (because
“record contains no independent evidence of [defendant’s] alleged gunbrandishing, or any evidence of the amount of time that elapsed
between [the victim]’s altercation with [defendant] and her 911 call . . . .
the government cannot carry its burden of establishing that [the
victim]’s claim that [defendant] pulled a gun on her ‘contain[s] inherent
guarantees of truthfulness,’ Haggins[ v. Warden, Ft. Pillow State Farm,
715 F.2d 1050, 1057 (6th Cir. 1983)], or that there was no ‘possibility of
fabrication,’ Wright, 497 U.S. at 820”) (Moore, J., dissenting). The issue
is thus whether there was sufficient evidence, including the hearsay
testimony, to convict Petitioner.
This claim was also considered by the Michigan Court of Appeals
and denied on the merits:
[D]efendant argues that his conviction of unlawful
imprisonment is not supported by sufficient evidence. In
determining whether the prosecutor has presented sufficient
evidence to sustain a conviction, we must take the evidence
in the light most favorable to the prosecutor to ascertain
whether a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. People v Tennyson, 487
Mich 730, 735; 790 NW2d 354 (2010).
Direct and
circumstantial evidence, as well as all reasonable inferences
that may be drawn, when viewed in a light most favorable to
the prosecution, are considered to determine whether the
13
evidence was sufficient to support defendant's conviction.
People v Hardiman, 466 Mich 417, 429; 646 NW2d 158
(2002).
Defendant was convicted of unlawful imprisonment under
MCL 750.349b(1)(a), which provides that “[a] person
commits the crime of unlawful imprisonment if he or she
knowingly restrains another person . . . by means of a
weapon or dangerous instrument.” (Paragraph structure
omitted.) “Restrain” means “to forcibly restrict a person’s
movements or to forcibly confine the person so as to interfere
with that person’s liberty without that person's consent or
without lawful authority.” MCL 750.349b(3)(a).
Defendant argues that there was insufficient evidence to
establish that any unlawful imprisonment was accomplished
“by means of a weapon or dangerous instrument,” because no
fingerprints, blood, or tissue were found on the gun.
However, a fingerprint expert explained how it was possible
to not have fingerprints on a gun that had been touched.
Further, the pistol was found by police under the bed, a foot
from the edge, on which defendant was sleeping when he
was detained. Additionally, three witnesses, the victim’s
mother, a police officer, and an emergency room nurse,
testified that the victim told them that defendant beat her
with a gun and forced her to stay in a closet by threatening
to further use the gun on her. The victim also told the
emergency room physician that her face was beaten with a
pistol, and the physician found facial wounds consistent with
blunt-force trauma. Therefore, viewing the evidence in a
light most favorable to the prosecution, we conclude that the
evidence presented was sufficient a rational trier of fact
14
could find the defendant guilty beyond a reasonable doubt.
Tennyson, 487 Mich at 735.
Conley, 2012 Mich. App. LEXIS 2053, at *7-9.
On direct review, the Court weighs a sufficiency of the evidence
challenge by deciding 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) (emphasis in original). On
habeas review under AEDPA, “[t]wo layers of deference apply to habeas
claims challenging evidentiary sufficiency.” McGuire v. Ohio, 619 F.3d
623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05
(6th Cir. 2009)). First, the Court must apply the Jackson standard.
Brown, 567 F.3d at 205 (citing Jackson, 443 U.S. at 319). Second, even
if the Court were “to conclude that a rational trier of fact could not have
found a petitioner guilty beyond a reasonable doubt . . . , [the Court]
must still defer to the state appellate court’s sufficiency determination
as long as it is not unreasonable.” Id. (emphasis in original).
As quoted above, the Michigan Court of Appeals rejected
Petitioner’s argument that no fingerprints, blood, or tissue were found
on the gun. The court based its decision on competent trial evidence
15
that the pistol was found under the bed in which Petitioner was
sleeping, it was possible that Petitioner’s fingerprints would not be on
the gun even if he had touched it, the victim contemporaneously told
three witnesses that Petitioner had beaten her with a gun, and that the
victim’s facial wounds were consistent with blunt-force trauma.
“[A] reviewing court ‘faced with a record of historical facts that
supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to that
resolution.’”
McDaniel v. Brown, 558 U.S. 120, 133 (2010) (quoting
Jackson, 443 U.S. at 326). Assuming, as this Court must, that the jury
found the testimony cited by the Michigan Court of Appeals credible,
the evidence presented at trial allowed the factfinder to determine
beyond a reasonable doubt that Petitioner knowingly restrained the
victim by means of a pistol.
Moreover, the state court was not
unreasonable for finding so. Thus, habeas relief cannot be granted on
this claim.
16
IV.
Conclusion
The petition for a writ of habeas corpus (Dkt. 1) is DENIED WITH
PREJUDICE.
The Court also denies a certificate of appealability. In order to
obtain a certificate of appealability, Petitioner must make “a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
See 28
Under this standard, a petitioner must
demonstrate that “reasonable jurists could debate whether (or, for that
matter, 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 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). Petitioner fails to make a substantial showing of the
denial of a federal constitutional right. Reasonable jurists would not
find the Court’s assessment of Petitioner’s constitutional claims
debatable or wrong.
17
Finally, the Court denies leave to proceed in forma pauperis on
appeal. A court may grant in forma pauperis status if the court finds
that an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Because an appeal
could not be taken in good faith here, Petitioner may not proceed in
forma pauperis if he wishes to appeal this decision. Id.
IT IS SO ORDERED.
Dated: January 3, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 3, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
18
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