Hendricks #844346 v. Winn
Filing
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OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN LYNN HENDRICKS,
Petitioner,
Case No. 1:16-cv-329
v.
HONORABLE GORDON J. QUIST
THOMAS WINN,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.
Factual Allegations
Following a jury trial in the Muskegon County Circuit Court, Petitioner was
convicted of second-degree murder, MICH. COMP. LAWS § 750.317, and possession of a firearm
during the commission of felony (felony firearm), MICH. COMP. LAWS § 750.227b. On July 9, 2012,
Petitioner was sentenced to a prison term of 22 years and 6 months to 50 years on the murder
conviction and two years on the felony-firearm conviction.
Petitioner appealed his convictions, raising two grounds for relief:
I.
THE TRIAL COURT ERRED WHEN IT DENIED DEFENSE COUNSEL’S
MOTION TO ADMIT HEARSAY STATEMENTS PURSUANT TO MRE
804(B)(7), BECAUSE IT MISINTERPRETED THE RULE’S
REQUIREMENT OF “EQUIVALENT CIRCUMSTANTIAL
GUARANTEES OF TRUSTWORTHINESS,” THUS DEPRIVING MR.
HENDRICKS OF HIS STATE AND FEDERAL CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE.
II.
THE TRIAL COURT ERRED WHEN IT REFUSED TO INSTRUCT THE
JURY REGARDING VOLUNTARY MANSLAUGHTER, A LESSERINCLUDED OFFENSE OF SECOND-DEGREE MURDER, WHEN A
RATIONAL VIEW OF THE EVIDENCE CLEARLY SUPPORTED A
FINDING OF VOLUNTARY MANSLAUGHTER.
(ECF No. 1-4, PageID.62.) Petitioner also filed a motion to remand for a new trial. (ECF No. 1-3,
Page ID.37-59.) The Michigan Court of Appeals denied the motion to remand, but allowed
appellate counsel to rely on the unadmitted hearsay statement of Antonio McBride, as if it had been
properly made a part of the lower court record. People v. Hendricks, No. 311573 (Mich. Ct. App.
June 28, 2013) (Ord. Den. Remand), http://publicdocs.courts.mi.gov:81/coa/public/orders/2013/
311573(37)_ order.pdf. Thereafter, Petitioner sought leave to file a supplemental brief on appeal,
in which he raised a third ground for relief. In that third ground, Petitioner alleged that his minimum
sentence had been unconstitutionally enhanced on the basis of judicial factfinding, in violation of
the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which extended
to statutory minimum sentences the reasoning of Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), prohibiting such enhancements to maximum
sentences. In an unpublished opinion issued on February 18, 2014, the court of appeals denied all
three claims and affirmed the convictions.
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Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same
issues. In an order issued on September 5, 2014, the supreme court directed that the application be
held in abeyance pending resolution of People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), which
was then pending before that court. In Lockridge, the Michigan Supreme Court concluded that
minimum sentences enhanced by judicial factfinding were unconstitutional under Alleyne, 133 S.
Ct. 2151. On October 28, 2015, following the decision in Lockridge, the Michigan Supreme Court
remanded Petitioner’s case for a new sentencing hearing. The court, however, denied leave to
appeal Petitioner’s other claims.
In his initial habeas application filed on or about March 29, 2016, Petitioner did not
identify the issues he intended to present on habeas review. Instead, he merely referred the Court
to the state-court briefs attached to his petition. On May 12, 2016, the Court directed Petitioner to
file an amended petition that clearly set forth the grounds he intended to raise on habeas review.
(See ECF No. 4.) Petitioner now has filed an amended petition (ECF No. 5), in which he expressly
indicates that he intends to seek habeas review only on the second issue raised in the state courts:
whether the trial court abused its discretion and violated due process by failing to instruct the jury
on the lesser-included offense of voluntary manslaughter.1
1
Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in
the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a
petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner’s constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v.
Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless,
459 U.S. 4, 6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims
to all levels of the state appellate system, including the state’s highest court. Duncan, 513 U.S. at 365-66; Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
Petitioner did not raise a federal due process claim in the state courts. He argued the issue solely as a matter
of state law. His constitutional claim therefore has not been fairly presented and is not exhausted. However,
notwithstanding the lack of exhaustion, this Court may deny an application for habeas relief. See 28 U.S.C. § 2254(b)(2).
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Discussion
The AEDPA “prevents federal habeas ‘retrials’” and ensures that state court
convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94
(2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271
F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who
is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was
adjudicated on the merits in state court unless the adjudication: “(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 upon an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (quotation marks omitted).
The Michigan Court of Appeals addressed Petitioner’s claim as follows:
“A necessarily lesser included offense is an offense whose elements are
completely subsumed in the greater offense.” People v Mendoza, 468 Mich 527,
540; 664 NW2d 685 (2003). Our Supreme Court has found that the elements of
voluntary manslaughter are included in the elements of murder, including
second-degree murder; therefore, voluntary manslaughter is a necessarily included
offense in this case where defendant was charged with first-degree murder. Id. at
533, 541. Consequently, “when a defendant is charged with murder, the trial court
must give an instruction on voluntary manslaughter if the instruction is ‘supported
by a rational view of the evidence.’” People v Mitchell, 301 Mich App 282, 286;
835 NW2d 615 (2013), quoting Mendoza, 468 Mich at 541. See also Cornell, 466
Mich at 355-356 (“it is not error to omit an instruction on such lesser offenses, where
the evidence tends to prove only the greater.”)
Here, defendant only argues that a voluntary manslaughter instruction should
have been given. The elements of voluntary manslaughter include, “defendant 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.”
People v Reese, 491 Mich 127, 143, 815 NW2d 85 (2012). “[P]rovocation is not an
element of voluntary manslaughter; rather, it is a circumstance that negates the
presence of malice.” Mitchell, 301 Mich App at 286. In People v Tierney, 266 Mich
App 687, 714-715; 703 NW2d 204 (2005), this Court considered the elements of
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voluntary manslaughter and found that “[t]he degree of provocation required to
mitigate a killing from murder to manslaughter is that which causes the defendant
to act out of passion rather than reason.” (Quotation omitted). The Tierney panel
held that “[i]n order for the provocation to be adequate[,] it must be that which would
cause a reasonable person to lose control.” Id. at 715 (citation and quotation marks
omitted). Provocation that consists only of words generally does not constitute
adequate provocation. People v Pouncey, 437 Mich 382, 391; 471 NW2d 346
(1991). Further, “[t]he word ‘passion’ in the context of voluntary manslaughter
describes a state of mind incapable of cool reflection. A defendant acting out of a
state of terror, for example, is considered to have acted in the ‘heat of passion.’”
People v Townes, 391 Mich 578, 589 n 3, 590; 218 NW2d 136 (1974). Our Supreme
Court has found that if the defendant has a sufficient “cooling-off period,” the
defendant has not established the necessary “heat of passion.” Pouncy, 473 Mich at
392 (30 seconds an adequate “cooling-off period).
In this case, the trial court determined that voluntary manslaughter was not
a lesser included offense of first-degree murder under Cornell, 466 Mich at 363-364.
However, in Mendoza, 468 Mich at 533, 540-541, our Supreme Court, quoting
Cornell, 466 Mich at 356, found that voluntary manslaughter is a necessarily
included offense of second-degree murder. Accordingly, we conclude that the trial
court erred. Further, in light of its conclusion that voluntary manslaughter was not
a lesser included offense of first-degree murder, the trial court did not perform the
necessary analysis to determine whether the facts of this case support a voluntary
manslaughter instruction. See Mendoza, 468 Mich at 541 (“Consequently, when a
defendant is charged with murder, an instruction for voluntary and involuntary
manslaughter must be given if supported by a rational view of the evidence.”
Nevertheless, “we will not reverse the trial court’s decision where it reached the right
result for a wrong reason.” People v Mayhew, 236 Mich App 112, 118; 600 NW2d
370 (1999).
We conclude that in this case, regardless of the trial court’s error, a rational
view of the evidence of record does not support the giving of a voluntary
manslaughter instruction. Here, nothing in the record suggested that defendant acted
in the heat of passion. Under defendant’s theory of the incident, he was walking
with his cellular telephone in his hand across the parking lot talking to his wife when
Wilson pulled into the parking lot and his SUV nearly hit defendant. Defendant
testified that he threw up his hands and stepped back. Defendant testified that he
then saw Wilson reach down into the SUV and pull out a gun, which caused
defendant to turn around and run away. Defendant testified that he did not tell
anyone that Wilson had a gun or report the incident to the police—even after the
shooting—because he “didn’t get harmed” and it did not make much of an impact
on him. Thus, according to defendant, he took no part in the shooting. He testified
that he did not have a gun and was not the shooter. Accordingly, because defendant
claimed that he did not commit any kind of murder, a rational view of his testimony
does not support that he acted in the heat of passion. See Mendoza, 468 Mich at
546-547 (involuntary manslaughter instruction was not appropriate because, in part,
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it was contrary to the defendant’s theory that he never had possession of the gun used
in the murder).
People v. Hendricks, No. 311573, slip op. at 4-6 (Mich. Ct. App. Feb. 18, 2014), http://publicdocs.
courts.mi.gov:81/opinions/final/coa/20140218_c311573_65_311573.opn.pdf.
To the extent that Petitioner challenges the state court’s determination of state law,
his claim is not cognizable on habeas review. “[A] federal court may issue the writ to a state
prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties
of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)).
It is not the province of a federal habeas court to re-examine state-law determinations on state-law
questions. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991).
The decision of the state courts on a state-law issue is binding on a federal court. See Wainwright
v. Goode, 464 U.S. 78, 84 (1983); Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013)
(quoting Bradshaw, 546 U.S. at 76) (“‘[A] state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.’”).
Moreover, the Sixth Circuit Court of Appeals, sitting en banc, has held that the
failure to give an instruction on a lesser included offense, even when requested by counsel, is not
of the “character or magnitude which should be cognizable on collateral attack.” Bagby v. Sowders,
894 F.2d 792, 797 (6th Cir. 1990) (en banc). The Bagby Court held that failure to instruct on lesser
included offenses in a noncapital case is reviewable in a habeas corpus action only if the failure
results in a miscarriage of justice or constitutes an omission inconsistent with the rudimentary
demands of fair procedure. Id.; accord Tegeler v. Renico, 253 F. App’x 521, 524 (6th Cir. 2007);
Todd v. Stegal, 40 F. App’x 25, 28-29 (6th Cir. 2002); Scott v. Elo, 302 F.3d 598, 606 (6th Cir.
2002); Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001); Samu v. Elo, 14 F. App’x 477, 479
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(6th Cir. 2001); Williams v. Hofbauer, 3 F. App’x 456, 458 (6th Cir. 2001). Shortly after the Sixth
Circuit decision in Bagby, the Supreme Court emphasized that the fact that an instruction was
allegedly incorrect under state law is not a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62,
71-72 (1991) (citing Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983)). Instead, the only
question on habeas review is “whether the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,
14 (1973)), cited in Todd, 40 F. App’x at 29.
Here, Petitioner does not even allege that the failure to instruct on the lesser-included
offense constituted miscarriage of justice or a fundamental defect in due process. Furthermore, no
clearly established Supreme Court authority requires lesser-included offense instructions in
non-capital cases. Thus, under the AEDPA, 28 U.S.C. § 2254(d)(1), this claim is not a basis for
habeas relief. Todd, 40 F. App’x at 28 (citing Estelle, 502 U.S. at 71-72)).
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
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anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “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). In applying this standard, the Court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.
Dated: June 10, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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