Opinion
Case No. 00-10457-BC
November 22, 2002.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Freddie Bills, a state inmate presently incarcerated by the Michigan Department of Corrections at its Alger Maximum Correctional Facility in Munising, Michigan, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted by a Wayne County jury of two counts of aggravated stalking, according to Mich. Comp. Laws § 750.411i. He was sentenced as a fourth habitual offender, in accordance with Mich. Comp. Laws § 769.12, to a term of thirty to sixty years incarceration.
The petitioner asserts that the trial court lacked jurisdiction over his person because the magistrate had no probable cause to bind him over for trial. He further alleges that his counsel was ineffective because counsel abandoned the petitioner's jurisdictional challenges at trial. The Court disagrees, and will deny the petition.
I.
The Michigan Court of Appeals summarized the facts of this case as follows:
This case arises out of defendant's breach of two personal protection orders ("PPOs") that his mother-in-law, Jessie Mae Jacobs, filed against him. The record below established that defendant married Jacobs' daughter in approximately 1985. In 1986, defendant and Jacobs' daughter had a son. In 1987, Jacobs' daughter left defendant, took her son, and moved in with Jacobs. Later that year, defendant entered Jacobs' home with a shotgun and assaulted Jacobs and her daughter. Defendant received a conviction of felonious assault in 1988 as a result of this incident, and served a prison sentence. In 1992, while defendant was in prison, Jacobs' daughter died in an automobile accident. Jacobs obtained formal guardianship of her grandson in 1993. Defendant was released from prison in December 1995. Thereafter, defendant began making threatening phone calls to Jacobs, and he filed an unsuccessful challenge to Jacobs' guardianship of his son.
On May 16, 1996, Jacobs filed a request in Wayne Circuit Court for a PPO against defendant. The PPO issued that same day, and it prohibited defendant from coming within 500 feet of Jacobs or contacting Jacobs on the telephone. On January 7, 1997, the court issued a revised PPO. According to Jacobs' testimony, defendant continued to follow her and threaten her over the phone. The prosecutor subsequently charged defendant with two counts of aggravated stalking.People v. Bills, No. 214089, 2000 WL 33406742, at *1 (Mich.Ct.App. Sept. 29, 2000).
One of the stalking charges was based on the violation of the PPOs. See Mich. Comp. Laws § 750.411i(2)(a). The other, however, had nothing to do with the PPOs and instead alleged that the petitioner had made credible threats against the victim and her family. See Mich. Comp. Laws § 750.411i(2)(c). At the preliminary examination conducted in accordance with Michigan Compiled Laws § 766.1 and Michigan Court Rule 6.110, the petitioner represented himself and complained that there was insufficient evidence to bind him over for trial because the PPOs were defective. In particular, the petitioner complained that the drafter of the PPOs mistakenly listed Ms. Jacobs as the person to be restrained, not the petitioner, and that the PPOs never set forth the irreparable injury which justified the issuance of the PPOs ex parte without notice to the petitioner and an opportunity to be heard. In response, the prosecution admitted the error, but insisted that the PPOs as a whole made it abundantly clear that it was Mr. Bills who was being restrained, and that Mr. Bills had notice of this fact. The trial court agreed and bound the petitioner over for trial.
At trial, the petitioner's counsel refused to pursue his "jurisdictional" challenges to the PPOs raised at the preliminary examination and, contrary to the petitioner's wishes, stipulated to the validity and enforceability of the PPOs. The petitioner was then convicted of both counts.
The Court of Appeals affirmed the petitioner's convictions in an unpublished per curiam opinion. People v. Bills, No. 214089, 2000 WL 33406742 (Mich.Ct.App. Sept. 29, 2000). The Michigan Supreme Court denied review, along with the petitioner's motion for bond pending appeal, on March 27, 2001, People v. Bills, 463 Mich. 988, 624 N.W.2d 191 (2001), and his motion for reconsideration on May 29, 2001, People v. Bills, 630 N.W.2d 333 (2001).
This petition for writ of habeas corpus was filed on December 21, 2000, and the respondent filed an answer to the petition on May 14, 2001. The petitioner meanwhile filed a motion to disqualify the judge on April 2, 2001, which this Court denied on May 15, 2001. Thereafter, the petitioner filed pro se motions for an evidentiary hearing, a motion for copies of the Rule 5 material, a renewed motion for unsecured bond, and a motion for summary judgment, among several others. The Court denied these motions on October 4, 2001.
The petitioner has filed several notices of appeal, which have been dismissed by the Court of Appeals, along with two petitions for a writ of mandamus. The second mandamus compliant was recently denied by the Court of Appeals. These procedural machinations are mentioned not because they have any bearing on the merits of the petitioner's claims, but because they have delayed the ultimate decision in this case due to the multiple transmissions of the official file to the Court of Appeals and the necessary interruption of this Court's jurisdiction. In all, the petitioner has filed twenty-seven motions in this case, including a second motion to disqualify the judge, which remains pending.
II.
Initially, the Court must address the petitioner's second motion for judge disqualification. The petitioner alleges that the Court is conspiring with the respondent's counsel because it has not sanctioned her for making allegedly false statements in the respondent's answer in opposition to the petition, and that this Court therefore must disqualify itself. However, the plaintiff's request that the Court recuse itself can only be granted for cause. See McCuin v. Texas Power Light Co., 714 F.2d 1255, 1262 (5th Cir. 1983) (parties do not have the right to a judge of their choice). The Court has found no grounds to justify its recusal from this case. The Court's entry of an adverse or erroneous order does not, by itself, demonstrate bias. See Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 921 (9th Cir. 1987); see also Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956).
The motion for disqualification will be denied.
III.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405, 406 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410, 411. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner's first two arguments are very similar. Both attack the trial court's decision to bind him over for trial, and assert that no probable cause existed for that determination given the defective PPO. The Michigan Court of Appeals addressed this claim as follows:
Defendant first argues that the prosecutor presented insufficient evidence to support his bindover and conviction for aggravated stalking. According to defendant, the two PPOs on which the aggravated stalking charges were predicated were invalid due to a clerical error. We disagree. This Court will not disturb a district court's probable cause determination unless it was wholly unjustified based on the record. In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor to determine whether a rational trier of fact could find that the prosecutor proved the essential elements of the crime beyond a reasonable doubt.
Count I of the information charged defendant with aggravated stalking pursuant to M.C.L. § 750.411i(2)(a); MSA 28.643(9)(2)(a), which provides:
An individual who engages in stalking is guilty of aggravated stalking if the violation involves any of the following circumstances:
(a) At least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order. In section D of both PPOs, the name "Jessie Jacobs," who was actually the victim in this case, appeared in the box on the form where the name of the restrained party should have been. Defendant argues that this clerical error made each of the PPOs invalid, and that consequently the evidence was insufficient to support his conviction. Defendant's argument is without merit.
. . .
Refusal to vacate the PPOs because of a clerical error would not be inconsistent with substantial justice in this case. While Jessie Jacobs' name mistakenly appeared as the restrained party in section D of both PPOs, section I of those documents makes clear that defendant was the subject of the PPOs. Defendant admitted that he received actual notice of the PPOs, and his testimony and comments at the preliminary examination and at trial show that he was aware that he was the restrained party. Defendant's testimony also demonstrated that he was aware of the activities and behavior that the PPOs prohibited. Therefore, because the clerical errors did not invalidate the PPOs, we reject defendant's argument.
Defendant also argues that the PPOs were invalid because they were not issued in compliance with MCR 3.310(B)(2)(b), which provides that a temporary restraining order granted without notice must "describe the injury and state why it is irreparable and why the order was granted without notice." This argument is also without merit. In her May 16, 1996, motion for the initial PPO, Jacobs stated the following reasons for needing a restraining order against defendant:
He once did time for shooting my house. He did seven years, release [sic] on 12/30/95. Ever since than [sic] he has been a thorn in my side in fact my worse [sic] nightmare. He's threatened me by phone, letter . . . [Y]esterday he tried to run me down.
We conclude that, in her motion for the PPO, Jacobs sufficiently described an irreparable injury. That defendant posed an immediate threat to Jacobs' personal safety is clear to us from Jacobs' statement. The injury she was in danger of suffering could reasonably be characterized as irreparable because defendant had taken actions in the past, such as attempting to force her car off the road and discharging a shotgun in her home, that put Jacobs' life at risk. Although the PPO did not incorporate Jacobs' testimony, based on MCR 2.613(A), we cannot conclude that the failure was contrary to substantial justice.People v. Bills, 2000 WL 33406742, at *1-2.
The Court agrees. First, to the extent that the petitioner claims a violation of Michigan state law relating to preliminary examinations, such a claim is not properly before this Court. It is well established that "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Louis v. Jeffers, 497 U.S. 764, 780 (1990)). The Sixth Circuit has held that "[i]n a habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law." Long v. Smith, 663 F.2d 18, 22-23 (6th Cir. 1981).
The purpose of a preliminary examination is to determine whether probable cause exists to justify continued detention of a person charged by complaint or information. See Gerstein v. Pugh, 420 U.S. 103, 118 (1975). The abridgement of that right may undermine the validity of continued pretrial detention, but not the ensuing conviction. Under Michigan law, any error in the sufficiency of the proofs at preliminary examination is considered harmless if there is sufficient evidence to convict at trial. See People v. Hall, 435 Mich. 599, 602-03, 460 N.W.2d 520, 522 (1990). In this case, habeas relief will not lie because the petitioner had no right to a preliminary hearing under federal law. See David v. Lavinge, 190 F. Supp.2d 974, 978 (E.D.Mich. 2002) (O'Meara, J.) (citing Gerstein, 420 U.S. at 125 n. 26). Although the Constitution does prohibit any defendant from being convicted of a crime on the basis of evidence which no reasonable juror could accept, see Jackson v. Virginia, 443 U.S. 307, 315-16 (1979), the sufficiency of a preliminary hearing is not a matter of federal concern.
No relief is available on this claim.
B.
Next, the petitioner complains that his counsel at trial was ineffective because counsel disregarded the petitioner's arguments concerning the invalidity of the PPO, and instead stipulated to the validity of the PPOs. The Michigan Court of Appeals rejected this argument as well:
Defendant next argues that he received ineffective assistance of counsel because his trial attorney allowed the court to take judicial notice of the fact that the PPOs issued against defendant were properly executed court documents. We do not agree. Defendant claims that his counsel should have objected to the court's decision to take judicial notice of the fact that the two PPO's were "entered in an appropriate Court and that they are official court documents." As we explained above, defendant offers no authority to support his contention that a clerical error in the PPOs rendered them invalid for purposes of his aggravated stalking conviction. Each of the PPOs was filed in the Wayne Circuit Court and bore the verification of the county clerk. Under the circumstances, an objection to the court's taking judicial notice of the PPOs would have been futile. Defendant's attorney was not required to argue a frivolous or meritless motion. Therefore, defense counsel's failure to object to the court's decision to take judicial notice of the PPOs as properly executed court documents did not constitute ineffective assistance of counsel.People v. Bills, 2000 WL 33406742, at *4.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when assessing counsel's performance, the reviewing court should afford counsel great deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal quotes and citations omitted). The Court explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id.
To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996).
As noted above, however, the Michigan Court of Appeals found that the PPOs were valid and effective. Although some ambiguity was introduced by the scrivener's error indicating that the complainant, not the petitioner, was the person to be restrained, the bottom portion of the order clearly restrains the petitioner, not the complainant from undertaking various stalking activities. The Michigan Court of Appeals correctly found that counsel cannot be ineffective for failing to pursue a line of argument lacking in merit. See Norris v. Schotten, 146 F.3d 314, 336 (6th Cir. 1998). Furthermore, the petitioner at no time attempts to show that the result of the trial would have been different had counsel pursued the petitioner's preferred strategy. Instead, he reasserts the bizarre assertion that the trial court "lacked jurisdiction" over him and that trial counsel should somehow have made this argument to the jury, which was not legally capable of making such a determination in the first place.
The Court finds that the decision of the Michigan Court of Appeals rejecting this claim was not contrary to or an unreasonable application of federal law as established by the Supreme Court.
C.
Finally, the petitioner argues that his conviction must be vacated based on the holding of Staley v. Jones, 108 F. Supp.2d 777 (W.D.Mich. 2000) (Enslen, C.J.), which vacated a conviction under Michigan's anti-stalking statute on the grounds that the statute was vague and overbroad. The respondent argues that this claim is unexhausted because it was never presented to the Michigan Court of Appeals. The petitioner responds that he did attempt to present the argument to the Court of Appeals, but that the ruling on his appeal and his request to consider the additional claim crossed in the mail. Even if true, however, a federal court may deny a habeas petition on the merits despite a petitioner's failure to exhaust state remedies for all his claims. 28 U.S.C. § 2254(b)(2); see also Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991) (holding that the doctrine of exhaustion raises only federal-state comity concerns and is not a jurisdictional limitation of the power of the court).
It is clear that no relief is available on this claim, as Judge Enslen's decision has since been reversed by the United States Court of Appeals for the Sixth Circuit. See Staley v. Jones, 239 F.3d 769 (6th Cir. 2001). This Court is obviously bound by that decision, and the petitioner's fourth claim therefore will also be denied.
IV.
The decision of the Michigan Court of Appeals affirming the petitioner's convictions was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). Furthermore, the petitioner's additional claim that the anti-stalking statute is unconstitutional has been rejected by the Sixth Circuit.
Accordingly, it is ORDERED that the Second Motion for Judge Disqualification [dkt #58] is DENIED.
It is further ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
It is further ORDERED that the remaining motions in this case are DENIED AS MOOT.