Robinson #742153 v. Woods
Filing
44
MEMORANDUM AND ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LOREN ROBINSON,
Petitioner,
Case No. 2:14-cv-50
v.
HON. R. ALLAN EDGAR
JEFFREY WOODS,
Respondent.
___________________________________/
MEMORANDUM AND ORDER
Petitioner Loren Troueze Robinson filed this petition for writ of habeas corpus
challenging his convictions for extortion, delivery of a controlled substance of less than 50 grams,
second offense (crack cocaine), unlawful imprisonment, and aggravated assault. Petitioner was
sentenced to concurrent prison terms of 150 to 360 for the extortion conviction, 38 to 480 months for
the delivery of a controlled substance conviction, 120 to 270 months for the false imprisonment
conviction, and 365 days for the aggravated assault conviction.
Petitioner alleges that:
I. Petitioner’s convictions should be overturned because there was
insufficient credible evidence at trial to prove Petitioner guilty of the
crime.
II. The trial court denied Petitioner a fair trial and his due process
rights by denying the motion to file a late notice of alibi and his
motion for a new trial.
III. Petitioner’s sentences were invalid because they were based on
inaccurate information, i.e., improper scoring of the legislatively
imposed sentencing guidelines, use of an incorrect burden of proof,
and insufficient facts, thereby violating his due process rights.
IV. Correctly scoring the guidelines would require resentencing.
V. Petitioner was denied his right to due process of law under the
federal and state constitutions where he was never arraigned on the
charges in the felony information brought against him and he did not
waive his right to an arraignment.
VI. The trial court violated Petitioner’s due process rights by refusing
to appoint substitute counsel where a conflict developed over
fundamental trial tactics and defense trial counsel failed to subpoena
exculpatory witnesses despite repeated demand.
VII. Petitioner was denied his state and federal constitutional rights to
due process and a fair trial where he was shackled.
VIII. Petitioner was denied a fair trial through the prosecution’s
withholding of crucial evidence with respect to the full extent of the
plea deal offered to Petitioner’s co-defendant in exchange for
testimony against Petitioner at trial.
IX. Due process requires vacating the trial court’s assessment for
court costs, fees, and restitution where the trial court failed to consider
Petitioner’s indigency and ability to pay during his incarceration.
X. The trial court’s order to remit prisoner funds for fines, costs, and
assessments is in clear error and must be corrected where it
inaccurately indicates that Petitioner owes a balance greater than what
was actually ordered by the court.
XI. Petitioner was denied his state and federal constitutional rights to
effective assistance of trial counsel where counsel failed to (1) insure
that Petitioner was informed of the nature of the charges brought
against him in the information; (2) move for a mistrial after it came to
his attention that jurors might be aware that Petitioner was shackled;
(3) investigate the specifics of the plea deal the prosecutor offered to
Petitioner’s co-defendant in exchange for his testimony; and (4) object
to Petitioner’s ability to pay restitution and court costs during the
period of Petitioner’s incarceration due to his indigency.
In April of 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
became effective. Because this petition was filed after the effective date of the AEDPA, this Court
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must follow the standard of review established in that statute. Under the AEDPA, 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).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This provision marks a “significant change” and prevents the district
court from looking to lower federal court decisions in determining whether the state decision is
contrary to, or an unreasonable application of, clearly established federal law. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). To justify a grant of habeas corpus relief under this provision of the
AEDPA, a federal court must find a violation of law “clearly established” by holdings of the Supreme
Court, as opposed to its dicta, as of the time of the relevant state court decision. Williams v. Taylor,
529 U.S. 362, 412 (2000). Recently, the Supreme Court held that a decision of the state court is
“contrary to” such clearly established federal law “if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable facts.” Id. A state court decision will be
deemed an “unreasonable application” of clearly established federal law “if the state court identifies
the correct governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. A federal habeas court may not find a state
adjudication to be “unreasonable” “simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law erroneously or
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incorrectly.” Id. at 412. Rather, the application must also be “unreasonable.” Id. Further, the habeas
court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists
would agree that the application by the state court was unreasonable. Id. at 410 (disavowing Drinkard
v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). Rather, the issue is whether the state court’s
application of clearly established federal law is “objectively unreasonable.” Williams, 529 U.S. at
409.
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). The habeas corpus statute has long provided that the factual
findings of the state courts, made after a hearing, are entitled to a presumption of correctness. This
presumption has always been accorded to findings of state appellate courts, as well as the trial court.
See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989),
cert. denied, 495 U.S. 961 (1990). Under the AEDPA, a determination of a factual issue made by a
state court is presumed to be correct. The petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).
Petitioner claims that his convictions should be overturned because there was
insufficient credible evidence at trial to prove Petitioner’s guilt. On appeal, the Michigan Court of
Appeals rejected Petitioner’s claim stating:
Defendant argues that his convictions were not supported by sufficient
evidence. We review de novo challenges to the sufficiency of the
evidence. People v Cline, 276 Mich App 634, 642; 741 NW2d 563
(2007). We view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have
found that the prosecution proved the elements of the crime beyond a
reasonable doubt. Id.
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Most of the defendant’s argument is an attempt to reargue the
credibility of the witnesses. Defendant claims that the victim, Joshua
Karamalegos, was not a credible witness for numerous reasons,
including that he lied to the police. Defendant also claims that Victor
Sawyer, a codefendant, was not credible because Sawyer received a
plea agreement and that his own testimony, because it was supported
by the testimony of two witnesses, was credible. The credibility of the
witnesses was a question for the jury, People v Harrison, 283 Mich
App 374, 378; 768 NW2d 98 (2009), and we will not interfere with the
jury’s role in determining the credibility of the witnesses, People v.
Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005).
Accordingly, we reject defendant’s attempts to reargue witness
credibility.
Defendant claims that his convictions for extortion and unlawful
imprisonment were not supported by sufficient evidence because there
was no threat of harm against Joshua if he did not pay the $1,000, his
drug debt, to defendant. The crime of extortion requires the malicious
communication of a threat, made with the intent to extort money or to
obtain a pecuniary advantage, to injure a person or a person’s property.
MCL 750.213; People v Fobb, 145 Mich App 786, 790; 378 NW2d
600 (1985). The elements of unlawful imprisonment, as relevant to
the present case, include the restraint of a person to facilitate the
commission of another offense. People v Railer, 288 Mich App 213,
217; 792 NW2d 776 (2010). Joshua testified that, after he became
persistent that he could not get the money unless he went back to
Niles, Vincent Wiggins, codefendant, hit Joshua in the head and that,
at some time, defendant told Joshua that he was not leaving until he
paid the money. Then, as instructed, during one of the telephone calls
with his father, Themelis (Tim) Karamalegos, Joshua told Tim that
Tim would not see him again if he did not get the money. Defendant
did not release Joshua until Tim exchanged the money. Viewing this
evidence in the light most favorable to the prosecution, a rational trier
of fact could have found beyond a reasonable doubt that a malicious
threat was made to injure Joshua if $1,000 was not paid to defendant.
Cline, 276 Mich App at 642.
Defendant also claims that his conviction for aggravated assault was
not supported by sufficient evidence because there was no proof of a
serious injury. The elements of aggravated assault include the
infliction of serious or aggravated injury. MCL 759.81a(1). “A
serious or aggravated injury is a physical injury that requires
immediate medical treatment or that causes disfigurement, impairment
of health, or impairment of a part of the body.” CJI2d 17.6(4). Joshua
testified that he blacked out each time Wiggins hit him. Joshua also
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testified that, when he learned he was being arrested after cocaine was
found in his pants pocket, he refused a ride in an ambulance to the
hospital and asked to be taken to jail. The jail nurse stated that Joshua
had to go to the emergency room. The emergency room doctor
testified that Joshua suffered a mild concussion and sustained multiple
abrasions and contusions on his face. Viewing this evidence in the
light most favorable to the prosecution, a rational trier of fact could
have found beyond a reasonable doubt that Joshua suffered a serious
or aggravated injury. Cline, Mich App at 642.
Michigan Court of Appeals Opinion, PageID.23-24, ECF No. 1.
A federal court sitting in habeas corpus review of a state criminal trial is to determine
whether there was sufficient evidence of the essential elements of the crime to justify any rational trier
of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
evidence is to be considered in the light most favorable to the prosecution. Id. Petitioner’s arguments
presented to the Michigan Court of Appeals show that he is chiefly challenging the credibility of those
witnesses who testified against him. PageID.1019-1024, ECF No. 14-9. However, federal habeas
courts have “no license to redetermine credibility of witnesses whose demeanor has been observed
by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983). See also
McPherson v. Woods, 506 F. App’x 379, 388-89 (6th Cir. 2012).
Petitioner claims that, regarding his conviction for extortion and unlawful
imprisonment, “[t]here was no testimony that anyone told him that he would be hurt, etc., if he didn’t
pay [the $1,000].” PageID.1024, ECF No. 14-9. However, the victim testified that Petitioner told
the victim that “you will not be leaving this house until I have my money.” PageID.423, ECF No. 144. Accordingly, the victim told his father over the phone: “I will not - - you won’t see me anymore
if I don’t get the money.” Id. The victim also testified that his three captors, including Petitioner,
“told me to tell [my father] about the $1000, otherwise, he wouldn’t see me again.” PageID.425, ECF
No. 14-4. The victim’s father testified that, when his son was calling, he heard voices in the
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background, “people instructing him to say things.” PageID.491, ECF No.14-4. He also testified that
he decided to “do something” and give the $1,000 to him when the victim told him “that I would
never see him again, from the position that he was in, that I would never see him again.” PageID.492,
ECF No. 14-4. Viewing this evidence in the light most favorable to the prosecution, it is clear that
the evidence was sufficient for a rational trier of fact to establish that Petitioner committed the crimes
of extortion and unlawful imprisonment under Michigan law.
Petitioner claims that there was insufficient evidence for the aggravated assault charge
“because there is no proof of serious injury.” PageID.1024, ECF No. 14-9. The victim testified that,
after he had been taken to jail because police found cocaine on him, a nurse at the jail stated that
“[h]e’s got to go to the emergency room . . . he’s pretty banged up.” PageID.437, ECF No. 14-4. The
victim’s emergency room physician testified at trial that the victim had suffered “a mild concussion,
because of the mental status changes that were associated with his injuries. And that he had multiple
abrasions and contusions on the face.” PageID.480, ECF No. 14-4. Viewing this evidence most
favorable to the prosecution, it is clear that the evidence was sufficient to establish for a rational trier
of fact that the victim suffered serious or aggravated injury. The Michigan Court of Appeals decision,
therefore, was not contrary to, or involved an unreasonable application of, clearly established federal
law as determined by the Supreme Court of the United States; or did not result in a decision that was
based upon an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.
Petitioner claims that the trial court denied him a fair trial and violated his due process
rights by denying the motions to file a late notice of alibi and his motion for a new trial based on
ineffective counsel. On appeal, the Michigan Court of Appeals rejected Petitioner’s claim regarding
the late filing of an alibi notice, stating:
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Defendant argues that the trial court erred when it denied his request
to file a notice of alibi on the second day of trial. We review the trial
court’s decision whether to permit a defendant to introduce alibi
evidence when the defendant failed to comply with the notice-of-alibi
statute, MCL 768.20(1), for an abuse of discretion. People v Travis,
443 Mich 668, 679-680; 505 NW2d 563 (1993). A trial court abuses
its discretion when its decision falls outside the range of reasonable
and principled outcomes. People v Unger, 278 Mich App 210, 217;
749 NW2d 272 (2008).
A defendant, if he wants to present an alibi defense, is required to file
notice of the alibi at least ten days before trial. MCL 768.20(1).
Defendant did not request to file a notice of alibi until the second day
of trial. We conclude that the trial court did not abuse its discretion in
denying defendant’s request to file a late notice of alibi. Travis, 443
Mich at 679-680. The late notice resulted in prejudice to the
prosecutor. The prosecutor did not have time to have the alibi witness
interviewed or investigated or to find rebuttal alibi witnesses. The trial
court accepted defense counsel’s assertion that he did not learn of a
potential alibi defense until January 20, 2011, when he reviewed
defendant’s January 13, 2011, letter. Defense counsel had represented
defendant since the preliminary examination in September 2010, and
no reason was provided for defendant’s late disclosure of alibi
witnesses. Further, defense counsel deemed it unwise to present an
alibi defense. Not only was he concerned about the subornation of
perjury, but he also did not believe that an alibi defense was a good
strategic approach. Under these circumstances, the trial court’s
decision to deny defendant’s request to file a late notice of alibi fell
within the range of reasonable and principled outcomes. Unger, 278
Mich App at 217.
Defendant focuses his argument on defense counsel’s statement to the
trial court that presenting the alibi witnesses raised an ethical dilemma
regarding the subornation of perjury. According to the defendant,
defense counsel’s statement was improper because counsel essentially
told the trial court that he did not believe defendant. However,
because defendant presents no legal authority in support of the claim
that defense counsel made an improper statement, the argument is
abandoned. See People v Kelly, 231 Mich App 627, 640-641; 588
NW2d 480 (1998). Regardless, the argument does not address
whether the trial court, after hearing from defense counsel, defendant,
and the prosecutor, abused its discretion in denying defendant’s
request to file a late notice of alibi.
Michigan Court of Appeals Opinion, PageID.24-25, ECF No. 1 (footnote omitted).
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The Supreme Court affirmed that a defendant’s “right to present his own witnesses to
establish a defense . . . is a fundamental element of due process of law.” Washington v. Texas, 388
U.S. 14, 19 (1967). However, the Court has also outlined the proper limitations of this right:
A defendant’s right to present relevant evidence is not unlimited, but
rather is subject to reasonable restrictions. . . . A defendant’s interest
in presenting such evidence may thus bow to accommodate other
legitimate interests in the criminal trial process. . . . As a result, state
and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials. Such rules do
not abridge an accused’s right to present a defense so long as they are
not arbitrary or disproportionate to the purposes they are designed to
serve.
United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations, quotation marks, and footnote omitted).
See also Taylor v. Illinois, 484 U.S. 400, 411 (1988) (“The State’s interest in the orderly conduct of
a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always
inflexible, rules relating to the identification and presentation of evidence.”).
In particular, the Supreme Court upheld a state’s notice-of-alibi rule as constitutional
where that rule was found to be “carefully hedged with reciprocal duties requiring state disclosure to
the defendant. Given the ease with which an alibi can be fabricated, the State’s interest in protecting
itself against an eleventh-hour defense is both obvious and legitimate.” Williams v. Florida, 399 U.S.
78, 81 (1970). See also Wardius v. Oregon, 412 U.S. 470, 472 (1973) (holding enforcement of alibi
rules unconstitutional “unless reciprocal discovery rights are given to criminal defendants”). Judges
applying these rules are given “wide latitude to exclude evidence that is repetitive . . ., only marginally
relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Crane v.
Kentucky, 476 U.S. 683, 689-90 (1986) (quotations omitted).
The applicable Michigan statute, Mich. Comp. Laws § 768.20, provides not only
discovery rights to a defendant; it also requires that a defendant “file and serve upon the prosecuting
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attorney a notice in writing of his intention to claim that defense” “no less than 10 days before the trial
of the case.” Mich Comp. Laws § 768.20(1). An exception to this rule is the “showing by the moving
party that the name of an additional witness was not available when the notice required by subsection
(1) . . . was filed and could not have been available by the exercise of due diligence, the additional
witness may be called.” Id. 768.20(3).
Petitioner did not comply with this rule or the exception when he requested to file a
notice on the second day of trial for three alibi witnesses. That included Petitioner’s parents and
girlfriend. PageID.519-520, ECF 14-4. The Petitioner’s motion, accepting counsel’s assertion that
he only learned of these alibi witnesses less than a week before trial and taking into account counsel’s
reluctance to use these witnesses out of concerns about perjury and trial tactics. PageID.533-534,
ECF 14-4.
Defense counsel’s concerns about perjury and trial tactics were validated at Petitioner’s
Ginther hearing in May 2012. At that hearing, Petitioner’s alibi witnesses, his mother, father, and
girlfriend, contradicted Petitioner’s own testimony about his whereabouts during the time of the
crimes. Petitioner’s parents and girlfriend claimed under oath that Petitioner was locked up at their
house after his 9 PM curfew on the night of the crime. PageID.838, 853, 855, 859, 866. ECF No.
14-8. However, Petitioner claimed in his trial testimony that after spending some time with his uncle
at the place of the crime, at the time of the crime, he first got home “[p]robably around like 11, 12,
something like that.” PageID.696-698, ECF No. 14-5. His uncle’s trial testimony also placed him
there past his alleged curfew. PageID.665-666, ECF No. 14-5. At his Ginther hearing, Petitioner
admitted that his parents’ sworn testimony was false. PageID.901-902, ECF No. 14-8.
Petitioner argues that alibi witnesses would have provided his defense. PageID.1028,
ECF No. 14-9. However, given the contradictory evidence presented at the Ginther hearing validating
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trial counsel’s concerns, Petitioner failed to produce any credible evidence demonstrating that the
three alibi witness he intended to call at trial would have provided exculpatory testimony. The
Michigan Court of Appeals decision, therefore, was not contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States; or did not result in a decision that was based upon an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding.
The Michigan Court of Appeals also rejected Petitioner’s claim regarding his motion
for a new trial based on ineffective counsel stating:
Defendant argues that the trial court erred in denying his motion for a
new trial based on ineffective assistance of counsel. We review the
trial court’s decision on a motion for a new trial for an abuse of
discretion. People v Kevorkian, 248 Mich App 373, 410; 639 NW2d
291 (2001). However, the determination whether a defendant was
denied the effective assistance of counsel is a mixed question of fact
and constitutional law. People v Seals, 285 Mich App 1, 17; 776
NW2d 314 (2009). A trial court must first find the facts and then
decide whether those facts constitute a violation of the defendant’s
right to effective assistance. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). We review a trial court’s findings of fact for
clear error, but review de novo questions of constitutional law. Id.
“Effective assistance of counsel is presumed, and the defendant bears
the heavy burden of proving otherwise.” People v Noble, 238 Mich
App 647, 661-662; 608 NW2d 123 (1999). To establish a claim for
ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below objective standards of reasonableness and that,
but for counsel’s deficient performance, there is a reasonable
probability that the result of the proceedings would have been
different. People v Uphaus (On Remand), 278 Mich App 174, 185;
748 NW2d 899 (2008).
First, the defendant claims that defense counsel was ineffective for not
investigating his alibi defense, filing a notice of alibi, and calling the
alibi witness at trial. Defendant relies on his and his mother’s
testimony at the Ginther hearing that counsel was told of the alibi
witnesses before January 2011. However, the trial court did not
believe defendant and his mother. Rather, it found defense counsel,
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and his version of defendant’s assertion of this alibi defense, credible.
It found that no alibi witness ever told defense counsel that defendant
was with him or her on March 6 or 7, 2010, and that the alibi defense
was not established until less than a week before trial. We must defer
to the credibility determination of the trial court, which had a superior
opportunity to judge the credibility of the witnesses. MCR 2.613(C);
Peope v Sexton (After Remand), 461 Mich 746, 752; 609 NW2d 822
(2000). Defendant makes no argument that the trial court, after having
found defense counsel credible, still erred in determining that counsel
was not ineffective for failing to develop an alibi defense.
Accordingly, defendant’s claim that defense counsel was ineffective
for failing to investigate and present an alibi defense is without merit.
Defendant has not shown that his counsel’s performance fell below an
objective standard of reasonableness. Uphaus (On Remand), 278
Mich App at 185.
Second, defendant claims that defense counsel was ineffective for
failing to investigate the criminal backgrounds of Marcus Hughes and
[Victor] Sawyer. According to defendant, Hughes and Sawyer could
have been impeached with prior criminal convictions. However, not
all convictions may be used to impeach a witness. Only convictions
for crimes that contain an element of dishonesty or false statement or
contain, in part, an element of theft may be used to impeach a witness.
MRE 609(a). Defendant presented no evidence at the Ginther hearing
that either Hughes or Sawyer had a conviction that could have been
used to impeach him. Accordingly, defendant has not established the
factual predicate of the claim. People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999).
Third, defendant claims that defense counsel was ineffective for failing
to impeach Joshua with statements that he had made to the police.
However, defendant has not identified any statements in police reports
that defense counsel failed to use to impeach Joshua. Accordingly,
defendant has not shown that defense counsel’s cross-examination of
Joshua fell below objective standards of reasonableness. Uphaus (On
Remand), 278 Mich App at 185.
Fourth, defendant claims that defense counsel was ineffective for
failing to alert the trial court to his learning disability and other
problems at sentencing. However, through the presentencing and
investigation report (PSIR) and from defense counsel’s statements, the
trial court learned that defendant has a learning disability and a very
difficult time reading and writing and that, when he was in high
school, defendant attended special education classes. Defendant does
not identify any additional statements defense counsel should have
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made. Accordingly, defendant has not shown that defense counsel’s
performance at sentencing fell below objective standards of
reasonableness. Id.
Fifth, defendant argues that defense counsel was ineffective for failing
to obtain telephone records for the telephone number that called Tim’s
telephone. At trial, Detective Wesley Smigielski testified that the
telephone number belonged to a “Boost phone” and, because there was
no contract for the telephone, there were no records for it. Because no
records existed for the telephone number, defense counsel’s
performance in failing to obtain the records did not fall below
objective standards of reasonableness. Id.
Sixth, defendant argues that defense counsel was ineffective for failing
to obtain surveillance video from Wal-Mart. However, defendant did
not present any evidence at the Ginther hearing to suggest that
surveillance video from March 7, 2010, was still in existence at the
time he was arrested, which was five months after the criminal
offenses occurred. Defendant, therefore, has not established the
factual predicate of his claim. Hoag, 460 Mich at 6.
The trial court did not abuse its discretion in denying defendant’s
motion for a new trial. Kevorkian, 248 Mich App at 410. The
ineffective assistance of counsel claims that defendant raised in the
motion are without merit.
Michigan Court of Appeals Opinion, PageID.25-27, ECF No. 1 (footnote omitted)
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s
performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome.
A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that the challenged action might be
considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also
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Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions
were hard to attack). The court must determine whether, in light of the circumstances as they existed
at the time of counsel’s actions, “the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that
counsel’s performance was outside that range, the defendant is not entitled to relief if counsel’s error
had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court recently has observed, while “‘[s]urmounting
Strickland’s high bar is never an easy task,’ . . . [e]stablishing that a state court’s application was
unreasonable under § 2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). Because the standards under both
Strickland and § 2254(d) are highly deferential, “when the two apply in tandem, review is ‘doubly’
so.” Harrington, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). In
those circumstances, “[t]he question before the habeas court is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
Petitioner raises again his alibi defense under his ineffective defense claim: During his
Ginther hearing, Petitioner claimed that he “told his attorney about alibi witnesses in sufficient time
so there could and should have been an alibi defense.” PageID.1032, ECF No. 14-9. See
PageID.881-882, 890-891, ECF No. 14-8. However, the judge presiding at that hearing did not find
this claim credible, holding instead that Petitioner’s credibility “is clearly compromised and suspect”
and that, before or during trial, Petitioner’s alibi witnesses “NEVER told [counsel] that the Defendant
was with them at the time of the offense.” PageID.988, ECF No. 14-9. Additionally, the judge held
that “the result would have been disastrous,” if trial counsel had raised the alibi defense demanded
by Petitioner at trial. Id. Accordingly, the judge did not find counsel’s assistance deficient under
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Strickland. Moreover, given that “[t]he evidence against Defendant was overwhelming” at trial, the
judge also did not find counsel’s performance prejudicial. PageID.989, ECF No. 14-9.
Petitioner also raises counsel’s alleged failure to investigate the criminal background
of two of the witnesses that testified against Petitioner and use that background to impeach them at
trial. PageID.1033, ECF No. 14-9. However, Petitioner failed to show that these two witnesses had
committed any impeacheable offenses under MRE 609. Petitioner also raises counsel’s alleged
failure to impeach the victim by using statements allegedly made by the victim “in different police
reports.” PageID.1033, ECF 14-9. However, Petitioner provides no evidence concerning the contents
of these statements; he also fails to demonstrate that the victim ever actually made those impeaching
statements to the police. Petitioner also claims that counsel was ineffective for not raising Petitioner’s
“learning disability and . . . other problems” at sentencing. Id. However, the record of the sentencing
hearing shows that counsel raised as an attenuating circumstance that Petitioner “has a learning
disability and has difficulty reading and writing.” PageID.794, ECF No. 14-6. Petitioner has not
demonstrated what else counsel could have done to raise this issue more effectively.
Petitioner also claims that counsel was ineffective for not obtaining the phone records
of the phone used to make the critical phone calls to the victim’s father. PageID.1033, ECF No. 14-9.
However, the investigating detective testified at trial that, while the voice mail on that phone
identified Petitioner as its owner, the detective was not able to obtain any phone records because it
was a “Boost phone” without a contract. PageID.598-599, ECF No. 14-4. Petitioner has not shown
that there was a record for the phone in question and that this record would have been exculpatory.
Petitioner finally claims that counsel was ineffective for not obtaining a certain piece of surveillance
footage deemed critical by Petitioner. At the Ginther hearing, trial counsel not only addressed his
tactical decision not to use the footage; he also testified that, based on a police report, he was led to
15
believe that the footage “did not exist by the time it became a subject.” PageID.926-927, ECF No.
14-8. Petitioner has not provided any evidence demonstrating that this tape existed and that it would
have been exculpatory. The Michigan Court of Appeals decision, therefore, was not contrary to, or
involved an unreasonable application of, clearly established federal law as determined by the Supreme
Court of the United States; or did not result in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.
Petitioner claims that his sentences were invalid because they were based on improper
scoring of the legislatively imposed sentencing guidelines, use of an incorrect burden of proof, and
insufficient facts. He furthermore claims that scoring the guidelines correctly would require
resentencing. Afer reviewing Petitioner’s sentencing claims in great detail, the Michigan Court of
Appeals rejected Petitioner’s claims, concluding:
Because the trial court did not abuse its discretion in scoring any of the
offense variables for defendant’s conviction for extortion, we affirm
defendant’s sentences for extortion and unlawful imprisonment. We
also affirm defendant’s sentence for delivery of a controlled substance
less than 50 grams without even determining whether the trial court
erred in scoring the relevant offense variables . . . for this specific
conviction. See Eller v Metro Indus Contracting, Inc, 261 Mich App
569, 571; 683 NW2d 242 (2004) (stating that an issue is moot and
should not be reached if a court cannot fashion a remedy).
Defendant’s minimum sentence for delivery of a controlled substance
is 38 months, which is far shorter than defendant’s minimum sentence
of 150 months for extortion. Even if we were to vacate defendant’s
sentence for delivery of a controlled substance and remand for
resentencing, defendant would not be granted any practical relief.
Regardless whether defendant’s sentence is 38 months or any shorter
length, defendant is required, based on his sentence for extortion, to
serve a minimum of 150 months’ imprisonment.
Michigan Court of Appeals Opinion, PageID.31, ECF No. 1.
Claims concerning the improper scoring of sentencing guidelines are state-law claims
and typically are not cognizable in habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 37316
74 (1982) (federal courts normally do not review a sentence for a term of years that falls within the
limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298, 301-02 (6th Cir. 2000)
(alleged violation of state law with respect to sentencing is not subject to federal habeas relief);
Cheatham v. Hosey, No. 93-1319, 1993 WL 478854, at *2 (6th Cir. Nov. 19, 1993) (departure from
sentencing guidelines is an issue of state law, and, thus, not cognizable in federal habeas review);
Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (the sentencing guidelines establish only
rules of state law). Moreover, a criminal defendant has “no federal constitutional right to be
sentenced within Michigan’s guideline minimum sentence recommendations.” Doyle v. Scutt, 347
F. Supp. 2d 474, 485 (E.D. Mich. 2004); accord Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D.
Mich. 2004); Thomas v. Foltz, 654 F. Supp. 105, 106-07 (E.D. Mich. 1987).
Although state law errors generally are not reviewable in a federal habeas proceeding,
an alleged violation of state law “could, potentially, ‘be sufficiently egregious to amount to a denial
of equal protection or of due process of law guaranteed by the Fourteenth Amendment.’” Koras v.
Robinson, 123 F. App’x 207, 213 (6th Cir. Feb. 15, 2005) (citing Bowling v. Parker, 344 F.3d 487,
521 (6th Cir. 2003)). See also Doyle, 347 F. Supp. 2d at 485 (a habeas court “will not set aside, on
allegations of unfairness or an abuse of discretion, terms of a sentence that is within state statutory
limits unless the sentence is so disproportionate to the crime as to be completely arbitrary and
shocking.”) (citation omitted).
The Supreme Court has also held that, to meet constitutional standards of due process,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490 (1999). In Blakely v. Washington, 542 U.S. 296, 303
(2004), the Supreme Court explained that “ that the ‘statutory maximum’ for Apprendi purposes is
17
the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” While the Court is, thus, concerned about exceeding the statutory
maximum by facts not proven to a jury beyond a reasonable doubt, it does not recognize a
constitutional right requiring the same burden of proof for a sentence that does not exceed this limit.
Harris v. United States, 536 U.S. 545, 566 (2002).1
Petitioner’s sentence clearly is not so disproportionate to the crime as to be arbitrary
or shocking. Doyle, 347 F. Supp. 2d at 485. Furthermore, Petitioner’s sentences do not exceed the
statutory maximum. Instead, Petitioner argues only that the court’s sentencing was not sufficiently
supported by facts proved to a jury beyond a reasonable doubt but was based, instead, on “judicial
fact-finding.” PageID.1038, ECF 14-9. Such claims clearly fall far short of the sort of egregious
circumstances implicating due process. The state-court’s rejection of Petitioner’s claim was not based
on an unreasonable determination of the facts and was neither contrary to nor an unreasonable
application of established Supreme Court precedent.
Petitioner claims that he was denied his federal and state due process rights because
he was not arraigned on the charges in the felony information brought against him and did not waive
his right to an arraignment. The Michigan Court of Appeals reviewed and rejected Petitioner’s claim
stating:
In his pro per brief, defendant argues that he was denied due process
of law because he was not arraigned on the charges in the information
and he did not waive arraignment. Because this claim of error was not
raised before the trial court, it is unpreserved for appellate review.
People v Matamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). We review unpreserved claims of error for plain
1
The Court is aware that Harris has been overruled by the Supreme Court in Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013). However, since Petitioner was sentenced in 2011, Harris still controls this sentence. See In re
Mazzio, 756 F.3d 487, 491 (6th Cir.2014) (holding that “Alleyne does not apply retroactively to cases on collateral
review”) and Floyd v. Palmer, No. 13-10050, 2015 WL 4877423, at *8-9 (E.D. Mich. Aug. 14, 2015).
18
error affecting the defendant’s substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).
The purpose of an arraignment is to provide the defendant with formal
notice of the charges against him. People v Waclawski, 286 Mich App
634, 706; 780 NW2d 321 (2009). At arraignment on the information,
the “court must either state to the defendant the substance of the
charge contained in the information or require the information to be
read to the defendant.” MCR 6.113(B). However, a defendant may
not be entitled to be arraigned on the information. MCR 6.113(E)
provides that “[a] circuit court may submit to the State Court
Administrator pursuant to MCR 8.112(B) a local administrative order
that eliminates arraignment for a defendant represented by an attorney,
provided other arrangements are made to give the defendant a copy of
the information.” In December 2007, the Berrien Circuit Court issued
Administrative Order 2007-05, which states that “[i]n all cases where
the defendant is represented by an attorney, the Court need not conduct
an arraignment on the information.” Accordingly, because defendant
was represented by an attorney, his right to be arraigned on the
information was eliminated. This was no plain error. Carines, 460
Mich at 763.
In addition, defendant’s claim that he never received notice of the
charges against him before trial commenced is contradicted by the
lower court record. Defendant was arraigned on the complaint and
warrant and had a preliminary examination. At the conclusion of the
preliminary examination, after it bound defendant over for trial, the
court stated, “I have a not guilty plea entered without formal
arraignment; that is entered at this time, along with a jury demand.”
Defendant, on the day of the preliminary examination, signed a
document captioned “Defendant’s entry of plea of not guilty without
arraignment (M.C.R. 6.113).” By signing the document, defendant
agreed, in part, that he had received and read a copy of the complaint,
warrant, or information; understood the substance of the charges
against him; waived arraignment in open court; pleaded not guilty; and
demanded a jury trial. Defendant knew of the charges against him
before trial commenced.
Michigan Court of Appeals Opinion, PageID.31-32, ECF No. 1.
The Constitution requires that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the accusation.” U.S. Const. amend. VI; see
Lucas v. O’Dea, 179 F.3d 412, 417 (6th Cir. 1999). However, it does not require the specific
19
procedure of arraignment as long as a defendant’s right to notice is satisfied by other means. Redwine
v. Renico, No. Civ. 01–CV–74802–DT, 2002 WL 31245256, at *3 (E.D. Mich. Sept. 30, 2002).
Petitioner claims that the trial court record does not show that he “had notice of the
charges in this matter prior to the commencement of his jury trial,” although he admits that “the
record indicates that Defendant was arraigned on a ‘complaint and warrant’ in the district court.”
PageID.1080-1081, ECF No. 14-9. See PageID.179, ECF 14-1 (Petitioner’s Berrien County Docket
Sheet recording “DEFENDANT IN COURT . . . DEFNDT ADV OF CONTENT OF C&W”).
Petitioner, furthermore, admits in ¶ 5 of his Affidavit that “[a]t the conclusion of the preliminary
examination I was told by the Court and my attorney that I was being bound over for trial on the
charges in the complaint and warrant.” PageID.1162, ECF No. 14-9. See PageID.180, ECF No. 14-1
(recording “PRELIMINARY EXAM HELD AS TO COUT 1, 2, 3, 4 . . . DEFN W/ATTY IN
COURT”).
Moreover, as the Michigan Court of Appeals noted, Petitioner, on the day of his
preliminary examination, signed a document captioned “Defendant’s entry of plea of not guilty
without arraignment (M.C.R. 6.113).” See Page.ID.180, ECF No. 14-1 (recording “DEFN ENTRY
PLEA N/GUILTY”). The trial judge referred to the contents of this document at the end of
Petitioner’s preliminary examination. PageID.222, ECF No. 14-2. Therefore, Petitioner was aware
of the charges against him well before his trial. The the state appellate court’s rejection of Petitioner’s
claim was not based on an unreasonable determination of the facts and was neither contrary to nor
an unreasonable application of established Supreme Court precedent.
Petitioner claims that the trial court violated his due process rights by refusing to
appoint substitute counsel where a conflict developed over fundamental trial tactics and defense trial
20
counsel failed to subpoena exculpatory witnesses despite repeated demand. The Michigan Court of
Appeals reviewed and rejected Petitioner’s claims stating:
Next, defendant argues that the trial court erred in denying his request
for substitute counsel. “The decision regarding substitution of counsel
is within the sound discretion of the trial court and will not be upset on
appeal absent a showing of an abuse of that discretion.” People v
Jesse Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991).
Defendant claims that he requested substitute counsel after he and
defense counsel disagreed about trial strategy. He wanted to pursue an
alibi defense, but defense counsel refused to investigate and pursue the
defense. However, in his November 2010 letter to the trial court,
defendant did not indicate that he wanted a new attorney because he
and defense counsel disagreed about an alibi defense. Rather,
defendant told the trial court that he did not feel comfortable with
defense counsel as his attorney because he smelled alcohol on defense
counsel’s breath and because he had not heard from defense counsel
after he had told defense counsel that he had new evidence and new
witnesses, whom he had not previously been able to contact because
they had been out of town, and had requested that counsel file a
“motion to discover.”
Based on the record, especially the testimony at the Ginther hearing,
it would be unreasonable for us to conclude that the new witnesses
referenced in defendant’s letter were the alibi witnesses. At the
Ginther hearing, defendant testified that he told defense counsel about
his alibi witnesses every time that counsel came to see him. There is
no indication that the alibi witnesses were ever out of town or that
defendant had not been able to contact them. Defendant’s mother and
his girlfriend had been in contact with defendant while he was at jail.
In addition, a conclusion that the “new witnesses” referenced in
defendant’s letter were not the alibi witnesses is consistent with the
trial court’s factual findings at the conclusion of the Ginther hearing.
The trial court found that defendant had not informed defense counsel
of an alibi defense until shortly before trial.
Accordingly, defendant has failed to establish that the trial court
abused its discretion in denying his request for substitute counsel.
Mack, 190 Mich App at 14. The trial court’s decision not to appoint
substitute counsel based on a disagreement of which it was never
apprised did not fall outside the range of reasonable and principled
outcomes. Unger, 278 Mich App at 217.
21
Michigan Court of Appeals Opinion, PageID.32-33, ECF No. 1.
The Sixth Amendment guarantees the right to assistance of counsel in criminal
proceedings to ensure that the criminal defendant receives a fair trial. Wheat v. United States, 486
U.S. 153, 158-159 (1988). The inquiry focuses on the adversarial relationship and whether the
defendant is represented by an effective advocate, as opposed to the defendant’s personal relationship
with his lawyer. Id., Morris v. Slappy, 461 U.S. 1 (1983). Moreover, an indigent defendant must
show “good cause” to warrant substitution of his appointed counsel. United States v. Mooneyham,
473 F.3d 280, 291 (6th Cir. 2007).
Petitioner has failed to show that he was represented by an ineffective advocate.
Petitioner asserts that counsel was ineffective for failing to present the alibi defense and that
Petitioner had requested substitute counsel in a November 2010 letter to the court. PageID.1086, ECF
No. 14-9. However, as the Michigan Court of Appeals noted: Petitioner’s letter to the court
requesting substitute counsel was not about irreconcilable conflicts regarding trial strategy, but was
mainly based on Petitioner’s not feeling comfortable with defense counsel. Thus, Petitioner has failed
to show good cause warranting substitution of his appointed counsel. He also failed to establish that
the trial court was aware of any substantive conflicts between him and trial counsel. The Michigan
Court of Appeals’ decision rejecting Petitioner’s claim is supported by clearly established federal law
and based on a reasonable application of the facts.
Petitioner claims that he was denied state and federal constitutional due-process and
fair-trial rights when he was shackled during trial. The Michigan Court of Appeals considered and
rejected Petitioner’s claims stating:
Defendant also argues that the trial court erred when it ordered that he
be shackled during trial. We review a trial court’s decision to restrain
22
a defendant for an abuse of discretion. People v Dixon, 217 Mich App
400, 404-405; 552 NW2d 663 (1996).
The right to a trial includes, absent extraordinary circumstances, the
right to be free from shackles in the courtroom. People v Payne, 285
Mich App 181, 186; 774 NW2d 714 (2009). A defendant may only be
shackled on a finding, supported by record evidence, that shackling is
necessary to prevent escape or injury to persons in the courtroom or to
maintain order. People v Dunn, 446 Mich 409, 425; 521 NW2d 255
(1994). Even if a trial court abuses its discretion when it orders that
a defendant be shackled, the defendant, to be entitled to relief, must
show that he suffered prejudice. People v Horn, 279 Mich App 31,
36; 755 NW2d 212 (2008). “[A] defendant is not prejudiced if the
jury was unable to see the shackles on the defendant.” Id.
We conclude that the trial court did not abuse its discretion in ordering
that defendant be shackled during trial. Dixon, 217 Mich App at 404405. The trial court ordered that defendant be shackled only after it
found that defendant was a flight risk after conducting an evidentiary
hearing. As shown by defendant’s jail records, defendant had
attempted to place himself in situations where an escape could be
possible, such as a hospital or a jail cell with exterior windows.
Defendant’s manipulation attempts, along with defendant’s history of
not appearing for court, his anger when learning that no one would
help him post bond, and his uncooperative behavior toward officers in
jail, support the trial court’s finding that defendant was a flight risk.
The trial court’s order that defendant be shackled was not based
merely on the preference of a law enforcement officer. See People v
Banks, 249 Mich App 247, 257-258; 642 NW2d 351 (2002).
Accordingly, the trial court’s decision that defendant be shackled
during trial did not fall outside the range of reasonable and principled
outcomes. Unger, 278 Mich App at 217.
Michigan Court of Appeals Opinion, PageID.33, ECF No. 1.
The Supreme Court has rejected the routine use of shackles because “the Fifth and
Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state interest specific to a
particular trial. Such a determination may of course take into account the factors that courts have
traditionally relied on in gauging potential security problems and the risk of escape at trial.” Deck
23
v. Missouri, 544 U.S. 622, 629 (2005) (emphasis added); See Lakin v. Stine, 431 F.3d 959, 963 (6th
Cir. 2005).
To determine the appropriateness of shackling decisions, the Sixth Circuit considers
the following four factors: “(1) the defendant’s record, his temperament, and the desperateness of his
situation; (2) the state of both the courtroom and the courthouse; (3) the defendant’s physical
condition; and (4) whether there is a less prejudicial but adequate means of providing security.”
Larkin, 431 F.3d at 964. The nature of the charges against a defendant cannot, by itself, justify
shackling. Id. at 964-65.
Petitioner failed to demonstrate that the jurors actually saw the shackles he was
wearing during trial. The court expressly addressed this issue following the evidentiary hearing to
determine the need for shackles and asked Petitioner to be “cooperative in that you not be jangling
any chains or shackles around to upset what we’re trying to prevent [the jury becoming aware that
Petitioner was shackled.]” PageID.254, ECF No. 14-3. Furthermore, this evidentiary hearing was
held in the absence of potential jurors. PageID.226, ECF No. 14-3.
During the hearing, the trial court heard testimony concerning Petitioner’s
apprehension and uncooperative, manipulative conduct in prison. It also considered Petitioner’s prior
uncooperative conduct in failing to show up in court while released on bond as well as the lower
security available in the courthouse, concluding that “[u]nder the totality of circumstances, the court
is satisfied that the defendant is an escape risk.” It therefore granted the prosecution’s motion to keep
Petitioner shackled during trial. PageID.252-254, ECF No. 14-3. Petitioner’s contention that the
court’s findings were not “reasonable” is not supported by the record before this Court. The record
shows that the trial court evaluated the need for shackles based on considerations consistent with the
above-mentioned factors used by the Sixth Circuit. Therefore, the appellate court’s rejection of
24
Petitioner’s claim was not based on an unreasonable determination of the facts and was neither
contrary to nor an unreasonable application of established Supreme Court precedent.
Petitioner claims that he was denied a fair trial through the prosecution’s withholding
of crucial evidence with respect to the full extent of the plea deal offered to Petitioner’s codefendant
in exchange for testimony against Petitioner at trial. The Michigan Court of Appeals considered and
rejected Petitioner’s claim stating:
Defendant argues that the prosecutor violated Maryland v Brady, 373
US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), when she failed to
disclose that Sawyer’s plea agreement included the dismissal of drug
charges in an unrelated case. This claim of prosecutorial misconduct
is unpreserved because it was not raised before the trial court. See
Metamora Water Serv, Inc, 276 Mich App at 382. We review
unpreserved claims of prosecutorial misconduct for plain error
affecting the defendant’s substantial rights. People v Ackerman, 257
Mich App 434, 448; 669 NW2d 818 (2003).
Pursuant to Brady, a defendant has a due process right to obtain
evidence that is in the possession of the prosecution if the evidence is
favorable to the accused and material to guilt or punishment. People
v Stanaway, 446 Mich 643, 666; 521 NW2d 557 (1994). In claiming
that Sawyer’s plea agreement included the dismissal of drug charges
in an unrelated case, defendant relies on defense counsel’s testimony
from the Ginther hearing. However, defense counsel’s testimony was
ambiguous whether Sawyer’s plea agreement included the dismissal
of an unrelated drug charge. Although counsel seemed to believe that
a drug charge against Sawyer in an unrelated case was dismissed, he
could not recall whether the dismissal was related to Sawyer’s plea
agreement. Accordingly, defense counsel’s testimony does not
establish that Sawyer’s plea agreement included the dismissal of a
drug in an unrelated case.7 Accordingly, there was no prosecutorial
misconduct constituting plain error. Ackerman, 257 Mich App at 448.
7
In addition, even if the dismissal of a drug charge was part of
Sawyer’s plea agreement, because defense counsel’s testimony
indicates that counsel knew of the dismissal, the testimony does not
establish that the prosecutor suppressed evidence of the dismissal. See
People v Lester, 232 Mich App 262, 282; 591 NW2d 267 (1998).
25
Michigan Court of Appeals Opinion, PageID.33-34, ECF No. 1.
It is a violation of due process of law when the prosecution suppresses “evidence
favorable to an accused upon request . . . where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373
U.S. 83, 87 (1963). Favorable evidence includes evidence impeaching a witness. United States v.
Bagley, 473 U.S. 667, 676 (1985) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). Favorable
evidence “is material only if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is
a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682.
In order for a petitioner to be entitled to habeas relief on the basis of prosecutorial
misconduct, the petitioner must demonstrate that the prosecutor’s improper conduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). “[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability
of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the
prosecutor’s misconduct, a court must consider the extent to which the claimed misconduct tended
to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the
claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12
(1985). The court also must consider the strength of the overall proof establishing guilt, whether the
conduct was objected to by counsel and whether a curative instruction was given by the court. See
id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United States, 295
U.S. 78, 84-85 (1935).
26
Petitioner, claims that the Prosecution failed to disclose “the full scope of its deal with
Mr. Sawyer to the defense” because there is “nothing in the record indicating that the prosecution
disclosed” this deal fully. PageID.1101, ECF No. 14-9. Petitioner claims that Mr. Sawyer, the
witness in question, was not only given a plea deal regarding his involvement in the events leading
to Petitioner’s conviction – the witness testified about this deal during Petitioner’s trial, PageID.578579, ECF No. 14-4 – but that he also made another deal with the government to get “drug charges in
an unrelated case dismissed in exchange for his testimony against [Petitioner] at trial.” PageID.1100,
ECF No. 14-9.
Petitioner bases this claim on (a) what Petitioner allegedly learned “shortly after
arriving in prison” and (b) trial counsel’s testimony during Petitioner’s Ginther hearing.
PageID.1100-1101, ECF No. 14-9. However, the record of Petitioner’s Ginther hearing shows that,
at best, trial counsel’s statements do not corroborate Petitioner’s claim that there was “another deal”
with Sawyer. When Petitioner’s appellate counsel erroneously asked Petitioner’s trial counsel about
whether “Mr. Hughes” was “involved in getting a plea bargain in another case,” trial counsel stated:
“That part, I don’t recall. I know he did not get charged in this case.” Petitioner’s appellate counsel
then corrected himself, “Victor Sawyer’s plea bargain’s what I’m talking about,” and asked trial
counsel: “Do you remember what the plea bargain was?” Trial counsel answered: “Not without
looking at the transcripts, no.” After looking at the trial transcript, trial counsel admitted to the
prosecutor that “the jury was able to hear” that there “was a plea agreement, in fact, with Victor
Sawyer.” PageID.934-936, ECF No. 14-8. The issue of “another deal” for Sawyer did not come up
again at that hearing.
Therefore, Petitioner fails to show that there was impeaching evidence that the
prosecution should have disclosed to the defense. Further, Petitioner fails to show that this evidence
27
was favorable or material to his case. Therefore, the appellate court’s rejection of Petitioner’s claim
was not based on an unreasonable determination of the facts and was neither contrary to nor an
unreasonable application of established Supreme Court precedent.
Petitioner claims that due process requires vacating the trial court’s assessment for
court costs, fees, and restitution where the trial court failed to consider Petitioner’s indigency and
ability to pay. The Michigan Court of Appeals has considered and rejected Petitioner’s claims stating:
Because defendant did not object when the trial court ordered him to
pay the fees, costs, and restitution, the claim of error is unpreserved,
see People v Dunbar, 264 Mich App 240, 251; 690 NW2d 476 (2004),
overruled on other grounds People v Jackson, 483 Mich 271; 769
NW2d 630 (2009), and we review it for plain error affecting
defendant’s substantial rights, Carines, 460 Mich at 763.
Defendant’s reliance on Dunbar, 264 Mich App at 254-255, where this
Court held that a trial court must consider a defendant’s ability to pay
before it orders the defendant to pay the costs of his court-appointed
attorney, is misplaced. The Supreme Court overruled Dunbar in
Jackson, 483 Mich 271. In Jackson, the Supreme Court held that a
defendant does not have a constitutional right to an assessment of his
ability to pay before a fee for his court-appointed attorney is imposed.
Id. at 290. According to the Supreme Court, a defendant is entitled to
an ability-to-pay assessment, but the trial court need not conduct an
assessment of a defendant’s ability to pay until the imposition of the
fee is enforced and the defendant objects to the enforcement. Id. at
292-293. Because defendant relies on Dunbar, he has failed to
establish plain error. Carines, 460 Mich at 763.
Michigan Court of Appeals Opinion, PageID.34, ECF No. 1.
The purpose of federal habeas corpus proceedings is to obtain release from
confinement “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Petitioner’s claims regarding court costs, fees, and restitution do not challenge his
confinement. Therefore, Petitioner is not entitled to habeas relief on the basis of this claim. See
Fisher v. Booker, No. 03-10029-BC, 2006 WL 2420229, at *9 (E.D. Mich. Aug. 22, 2006); See also
28
United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995). Petitioner claims that the trial court’s order
to remit prisoner funds for fines, costs, and assessments is in clear error. The Michigan Court of
Appeals agreed with Petitioner and remanded for correction. PageID.34, ECF No. 1. Like
Petitioner’s previous claim, this claim is non-cognizable in a habeas corpus proceeding.
Petitioner, finally, claims that he was denied state and federal constitutional rights to
effective counsel where his trial counsel failed to (1) insure that Petitioner was informed of the nature
of the charges brought against him in the information; (2) move for a mistrial after it came to his
attention that jurors might be aware that Petitioner was shackled; (3) investigate the specifics of the
plea deal the prosecutor offered to Petitioner’s co-defendant in change for his testimony; and (4)
object to Petitioner’s ability to pay restitution and court costs during the period of Petitioner’s
incarceration due to his indigency.
The Michigan Court of Appeals has reviewed and rejected this claim stating:
Because no Ginther hearing has been held on the four claims of
ineffective counsel raised in defendant’s pro per brief, our review of
the claims is limited to errors apparent on the record. Horn, 279 Mich
App at 38.
Defendant asserts that defense counsel was ineffective for failing to
ensure that he was informed of the nature of the charges brought
against him in the information. The basis of the claim is that
defendant was never arraigned on the information and did not waive
arraignment. However, as previously established, defendant’s right to
an arraignment on the information was eliminated. Accordingly,
defense counsel’s failure to ensure that defendant was arraigned on the
information did not fall below objective standards of reasonableness.
Uphaus (On Remand), 278 Mich App at 185.
Defendant asserts that defense counsel was ineffective for failing to
move for a mistrial when defendant brought it to his attention that
some jurors might be aware that he was in shackles. However, as
previously explained, nothing in the record indicates that any juror was
aware of defendant’s shackles. Accordingly, defendant has failed to
establish the factual predicate of the claim. Hoag, 460 Mich at 6.
29
Defendant also claims that defense counsel was ineffective because
counsel never made a “formal objection or argument” to the
prosecutor’s request that he be shackled during trial. However,
because the trial court was aware of the circumstances under which it
could order defendant to be shackled and found that one of those
circumstances existed, and because defendant has not identified any
objection or argument that defense counsel should have made,
defendant has not shown that counsel’s performance fell below
objective standards of reasonableness. Uphaus (On Remand), 278
Mich App at 185.
Defendant argues that defense counsel was ineffective for failing to
investigate the specifics of Sawyer’s plea agreement. According to
defendant, had counsel investigated the plea agreement, he would have
learned that the agreement included the dismissal of drug charges in
an unrelated case. However, as previously explained, nothing in the
record establishes that the dismissal of any drug charge was included
in Sawyer’s plea agreement. Accordingly, defendant has failed to
establish the factual predicate of the claim. Hoag, 460 Mich at 6.
Defendant claims that defense counsel was ineffective for failing to
object, based on his inability to pay, to the trial court’s order requiring
him to pay fees, costs, and restitution. However, as previously
established, defendant, at sentencing, was not entitled to an assessment
of his ability to pay. Accordingly, any objection by defense counsel
would have been meritless. Counsel is not ineffective for failing to
make a futile motion. People v Fike, 228 Mich App 178, 182; 577
NW2d 903 (1998).
Michigan Court of Appeals Opinion, PageID.34-35, ECF No. 1.
The highly deferential standards for reviewing claims of ineffective counsel in a
habeas proceeding have been set forth above. Each of the issues that Petitioner raises in his final
ineffective assistance of counsel are either without merit or non-cognizable. Therefore, the rejection
of Petitioner’s claim by the Michigan Court of Appeals was not based on an unreasonable
determination of the facts and was neither contrary to nor an unreasonable application of established
Supreme Court precedent.
Accordingly, the Petition is Dismissed.
30
In addition, if Petitioner should choose to appeal this action, a certificate of
appealability is denied as to each issue raised by the Petitioner in this application for habeas corpus
relief. 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).
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. 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.
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.” The undersigned concludes that reasonable jurists could
not find that a dismissal of each of Petitioner’s claims was debatable or wrong. Therefore, the court
will deny Petitioner a certificate of appealability as to each claim raised.
A Judgment consistent with this Memorandum and Order will be entered.
SO ORDERED.
Dated:
6/14/2016
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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