Anderson #419752 v. Perry
Filing
18
OPINION AND ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
Adam Anderson,
Petitioner,
v.
Case No. 2:12-CV-00333
HON. R. ALLAN EDGAR
Mitchell Perry,
Respondent.
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OPINION AND ORDER
Petitioner filed this § 2254 petition for writ of habeas corpus challenging the
validity of his state court conviction based on a Fourth Amendment violation and an improper
jury instruction. On March 15, 2010, Petitioner was found guilty by a jury and convicted of
Possession of a Firearm by a Felon (Felon in Possession, M.C.L. § 750.224(f)), Possession of a
Firearm during the Commission of a Felony (Felony Firearm, M.C.L. § 750.227(b)), and
Possession of Marijuana (M.C.L. § 333.7403(2)(d)). Petitioner was sentenced on May 13, 2010
to three to fifteen years for Felon in Possession, two years in prison for Felony Firearm (to be
served consecutive to Felon in Possession), and sixty-two days for Possession of Marijuana (for
which Petitioner received sixty-two days credit for time served). Petitioner remains in the
custody of the Michigan Department of Corrections. Respondent has filed a Motion to Dismiss
Petitioner’s claim (Docket # 8), and Petitioner has chosen not to respond after being served with
Respondent’s Answer. The case is now ready for decision.
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In October of 2009, a source informed police that she observed people in
Petitioner’s home, located in Montcalm County, possessing methamphetamine (meth) and
laboratories for manufacturing meth. The Central Michigan Enforcement Team (CMET)
obtained and executed a search warrant on the home on October 26, 2009. Inside Petitioner’s
home was a loaded shotgun, which officers seized, along with marijuana.
During the trial, Petitioner, his former live-in girlfriend, and his Aunt Emelander
testified that neither the gun nor the marijuana belonged to Petitioner. However, the jury found
Petitioner guilty of all three charges.
After being convicted, Petitioner filed an application for leave to appeal in the
Michigan Court of Appeals, raising the same claims brought before this Court. The Michigan
Court of Appeals denied Petitioner’s claims on July 14, 2011. Petitioner then filed an application
for leave to appeal in the Michigan Supreme Court, which was denied on December 28, 2011.
Petitioner did not appeal to the United States Supreme Court, and instead filed a habeas petition
in this Court on October 29, 2012
Petitioner maintains that his conviction was obtained in violation of his state and
federal rights. This petition sets forth two claims for relief: (1) that Petitioner’s Fourth
Amendment rights were violated by a search warrant supported by insufficient facts, and as such
Petitioner requests his convictions be reversed, and (2) that the jury was read a “charge for
conviction” jury instruction, for which Petitioner requests a new trial. Respondent has filed a
Motion to Dismiss Petitioner’s application for habeas corpus relief (Docket # 8). Petitioner has
chosen not to respond after being served with Respondent’s answer (Docket # 17). The matter is
now ready for decision.
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I.
Petitioner filed this petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone,
535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas “retrials” and ensures
state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas
application by a person in state custody shall not be granted in regards to any claim that has
previously been 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 on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
This Court may only consider “clearly established holdings” of the Supreme
Court, not lower federal courts, in analyzing a petitioner’s claim under § 2254. Williams v.
Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A
decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme
Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme
Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the
case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5)
it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey,
271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable”
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simply because that court decides, in its own judgment, that the relevant state decision applied
federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the
state court’s application of clearly established federal law was “objectively unreasonable”). This
Court defers to state court decisions when the state court addressed the merits of petitioner’s
claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510,
534 (2003) (allowing review of habeas application de novo when state court clearly did not reach
the question). When applying AEDPA to state factual findings, factual issues by state courts are
presumed correct unless the petitioner rebuts the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
After applying the standards under AEDPA to Petitioner’s case, this Court
concludes that Petitioner has not provided clear and convincing evidence that the state court
improperly applied clearly established federal law to the facts of Petitioner’s case.
II.
Petitioner argues that this Court should grant him relief because: (1) the facts
underlying the search warrant, which led to the physical evidence in this case, were insufficient
for a finding of probable cause, and (2) the jury was read a biased jury instruction. This Court
reviews both of these claims individually.
A. Fourth Amendment Claim
Petitioner raises a Fourth Amendment claim in alleging that the search warrant
used to search his home was supported by insufficient facts. Petitioner requests that his
convictions be reversed as a result.
Petitioner’s claim is subject to dismissal under the rule announced in Stone v.
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Powell, 428 U.S. 465 (1976). In Stone, the Supreme Court concluded that “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his
trial.” Id. at 482.
In Riley v. Gray, 674 F.2d 522 (6th Cir.), cert. denied, 459 U.S. 948 (1982), the
Sixth Circuit interpreted Stone as requiring the district court to make two distinct inquiries in
habeas proceedings:
Initially, the district court must determine whether the state
procedural mechanism, in the abstract, presents the opportunity to
raise a fourth amendment claim. Williams v. Brown, 609 F.2d 216,
220 (5th Cir. 1980). Second, the court must determine whether
presentation of the claim was in fact frustrated because of a failure of
that mechanism. See Boyd v. Mintz, 631 F.2d 247, 250 (3rd Cir.
1980); Gates v. Henderson, 568 F.2d 830, 840 (2nd Cir. 1977) (en
banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787
(1978).
Id. at 526 (footnote omitted). The record reveals no reason why petitioner would have been
prevented from raising his Fourth Amendment claims in the state courts, or that efforts to raise
this claim in state court were frustrated. Petitioner alleged, in the state courts and now in this
Court, that there was an insufficient factual basis to support the search warrant. The state courts
rejected his claim based on this information. Petitioner has not raised new facts or evidence to
show that he was unable to raise this claim in the state courts or that his presentation of the claim
was frustrated. Accordingly, Petitioner is precluded from raising this claim under the rule
announced in Stone v. Powell, and his request for relief is denied.
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B. Charge for Conviction Jury Instruction Claim.
Petitioner claims the trial court read an instruction to the jury that resulted in a
“charge for conviction.” Typically, a claim that a trial court gave an improper jury instruction is
not cognizable on habeas review. Instead, Petitioner must show that the erroneous instruction
“so infected the entire trial that the resulting conviction violates due process.” Henderson v.
Kibbe, 431 U.S. 145, 155 (1977); see also Estelle v. McGuire, 502 U.S. 62, 75 (1991) (erroneous
jury instructions may not serve as the basis for habeas relief unless they have “so infused the trial
with unfairness as to deny due process of law”); Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir.
2012) (same). If Petitioner fails to meet this burden, he fails to show that the jury instructions
were contrary to federal law. Henderson, 431 U.S. at 155-56.
In order to show a constitutional violation, petitioner must demonstrate that the
instruction violated due process. Id. at 153.
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the constitutional
validity of a state court’s judgment is even greater than the showing
required to establish plain error on direct appeal. The question in
such a collateral proceeding is “whether the ailing instruction by itself
so infected the entire trial that the resulting conviction violates due
process,” . . . not merely whether “the instruction is undesirable,
erroneous, or even ‘universally condemned,’” . . .
Id. at 154. The evidence presented at trial, taken in the light most favorable to the prosecution,
was sufficient to justify the instructions given by the court.
The Michigan Court of Appeals used an analogous standard for claims of biased
jury instructions when it rejected Petitioner’s claim:
Defendant also argues that the trial court gave a prejudicial jury
instruction and that he is therefore entitled to a new trial. While the
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jury instruction may appear harsh when read in isolation, we perceive
no abuse of discretion when the instruction is viewed in the overall
context of this case.
Claims of instructional error are reviewed de novo. People v.
McKinney, 258 Mich .App 157, 162; 670 N.W.2d 254 (2003). The
determination whether a jury instruction is applicable to the facts of a
case is within the sound discretion of the trial court. Id. at 163. “Jury
instructions are reviewed in their entirety to determine if error
requiring reversal occurred.” Id. at 162.
A trial court may, in its discretion, “comment on the evidence,
the testimony, and the character of the witnesses as the interests of
justice require.” MCR 2.516(B)(3); see also People v. Anstey, 476
Mich. 436, 451–452; 719 NW2d 579 (2006). “The trial court's
authority to comment on the evidence encompasses the power to
summarize the evidence relating to the issues, call the jury's attention
to particular facts, and point out the important testimony so as to lead
the jury to an understanding of its bearings.” Id. at 453 (internal
quotation marks and citations omitted). “The trial court's comments
must be fair and impartial, and the court should not make known to the
jury its own views regarding disputed factual issues, the credibility of
the witnesses, or the ultimate question to be submitted to the jury.” Id.
at 453–454 (internal quotation marks and citations omitted).
Defendant argues that the trial court's instruction regarding the
defense witness was not fair and impartial for two reasons. First,
defendant argues that the trial court showed its bias by telling the jury
that the witness was not timely disclosed to the prosecution. Second,
defendant argues that the trial court's instruction discredited the
testimony of the witness, who was critical to the defense.
The trial court instructed the jury:
In this case there was testimony by [a defense witness]
who was not disclosed to the People in a timely
manner. You should examine this witness's testimony
closely and be very careful about accepting it. You
should think about whether [the witness's] testimony is
supported by other evidence. When you decide whether
to believe this witness consider the following: was the
witness's testimony falsely slanted in favor of the
defendant? Does she have some bias in favor of the
defendant? In general, you should consider the
testimony of this witness more cautiously than that you
would of any other witness. You should be sure that
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you've examined it closely before you base a decision
on it.
Defendant's first point is unsupported. Defendant cites no
authority for his proposition that it was improper for the trial court to
tell the jury that the witness was not timely disclosed to the
prosecution. We cannot conclude that the court abused its discretion
by informing the jury of the witness's untimely disclosure.
With respect to defendant's second point, we note that a party
must generally disclose the names and addresses of all lay and expert
witnesses whom the party intends to call no later than 28 days before
trial. MCR 6.201(A)(1). If a party violates this rule, “the court, in its
discretion, may ... prohibit the party from introducing in evidence the
material not disclosed, or enter such other order as it deems just under
the circumstances.” MCR 6.201(J). The court's decision to exclude
evidence or enter any other order under MCR 6.201(J) is reviewable
only for an abuse of discretion. Id.
Here, defendant did not inform the prosecution of the witness
until a few days before trial began. Indeed, as the trial court
recognized, defendant's introduction of the witness was “a little bit of
a surprise” for the prosecution. It is clear that, because of defendant's
late disclosure of the witness, the trial court could have excluded the
witness's testimony altogether. Id.; see also People v. Elkhoja, 251
Mich. App 417, 439; 651 NW2d 408 (2002), vacated in part on other
grounds 467 Mich. 916 (2003). But instead of completely excluding
the witness's testimony, the trial court fashioned a less severe remedy,
instructing the jury merely that the testimony of the late-disclosed
witness should be carefully scrutinized and weighed with caution.
We fully acknowledge defendant's argument that the jury
instruction in this case constituted a “charge for conviction” in
violation of People v. Brown, 43 Mich. App. 170; 204 N.W.2d 72
(1972). In Brown, the trial court instructed the jury:
You will determine the factual situation here
because either Emmet Evans is a liar or this defendant,
James Edward Brown, is a liar.
In so doing, you will weigh, analyze the
respective theories of each side, and in fact, if you find
that the defendant did assault Emmet Evans on this date
and this occasion, then you will convict him.
Disregarding any sympathy you may have for his cause
or for the defendant himself because he does have a
physical affliction. Because in a larger sense, this is not
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the case of the People of the State of Michigan on
behalf of Emmett Evans, it is the peace and dignity of
the peace of the people of the State of Michigan for
whom you represent [sic] that is making the charges
here today. For we are in difficult times in this country.
We are now in a situation where we are going to have
the rule of law or the rule of the mob. Because you have
listened to this testimony and if an assault did take
place, this man was not assaulted because he was
Emmett Evans, he was not assaulted because he was a
wrestling instructor at Wayne University. He was
assaulted, if one took place, because someone thought
he was a pig. The proper vernacular these days for a
policeman.
On the other hand, if you find no matter what
your personal feelings might be, that in fact no assault
and battery took place, then you will acquit the
defendant.
But, there are two diametrically opposed
positions in this case. I say someone is a liar. You will
determine by your verdict who is the liar. [Id. at
173–174.]
The Brown Court characterized this jury instruction as a
“charge for conviction” because the trial court had essentially issued
an “exhortation [ ] to the jurors to convict the defendant.” Id. at 175.
The Brown Court concluded that, given the trial court's strong
language and one-sided instruction, it was meaningless for the trial
court to tell the jurors that they were the sole judges of the facts. Id.
at 175–176.
Unlike the instruction in Brown, the jury instruction given in
the present case was not an “exhortation[ ] ... to convict the
defendant.” It is true that the trial court brought to the jury's attention
that there had been a late disclosure of the witness. However, the court
left open the possibility that the jurors would find the witness credible.
Indeed, unlike in Brown, the trial court in this case did not instruct the
jurors that the witness was likely “a liar” or that the witness's
testimony was “diametrically opposed” to the other evidence of the
case. In contrast to the instruction in Brown, the instruction in the
instant case simply did not convey to the jurors that they should
convict defendant regardless of the evidence. See People v. Bowen, 77
Mich. App 684, 687–688; 259 N.W.2d 189 (1977).
Considering the trial court's right to “comment on the evidence,
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the testimony, and the character of the witnesses,” MCR 2.516(B)(3),
and to fashion a remedy for the late disclosure of witnesses, MCR
6.201(J), we cannot conclude that the court abused its discretion by
giving the challenged instruction in this case. The instruction did not
amount to an impermissible “charge for conviction.”
Resp’t Answer in Opp’n at 29-32, Docket # 8, (May 16, 2013).
The state court’s review of this claim is thorough and complete. Petitioner has not
shown that it was improper for the trial court to tell the jury to give less weight to a specific
witness that was not timely disclosed to the prosecution. Because Petitioner has not provided
clear and convincing evidence to overcome the state court’s presumption of correctness under §
2254(e)(1), or put forth new facts not previously considered by the state courts, Petitioner has
failed to show that he is entitled to any relief.
III.
This Court concludes that both of Petitioner’s claims are without merit. Should
Petitioner choose to appeal this action, the Court must determine whether a certificate of
appealability may 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). 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). Each issue must be considered
under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, 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.” Slack, 529 U.S. at
484. The Court examined each of Petitioner’s claims under the Slack standard and concludes
that reasonable jurists could not find that a dismissal of each of Petitioner’s claims was debatable
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or wrong. Therefore, the Court denies a certificate of appealability to each issue raised.
For the same reasons the Court dismissed this action, the Court will certify that
any appeal by Petitioner from the Court’s decision and judgment would be frivolous and not
taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED.
In summary, Petitioner’s motion for post-conviction relief (Docket # 4) pursuant
to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE. A judgment
consistent with this Opinion and Order will be entered.
SO ORDERED.
Dated: 5/27/2015
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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