Opinion
Case Number: 00-71539
June 28, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Jeffrey Bouyer, a state inmate currently incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition.
II. Facts
Petitioner's conviction arises out of his delivering cocaine to an undercover police officer on four different occasions. In February 1996, Petitioner was contacted by Darryl Walker, an acquaintance who was also a police informant. Walker asked Petitioner if he could provide cocaine to a man who, unbeknownst to Petitioner, was police detective Bill Moilanen. Pursuant to arrangements made through Walker, Petitioner and Detective Moilanen met on February 13, 1996 in a supermarket parking lot, where Petitioner delivered a half ounce of cocaine to Detective Moilanen in exchange for $550. Detective Moilanen testified that Petitioner then gave him his telephone number and a pager number and advised the detective to deal directly with him in the future.
Detective Moilanen contacted Petitioner the next day and purchased another half ounce of cocaine from Petitioner. Detective Moilanen contacted Petitioner again on February 21, 1996 and purchased two ounces of cocaine from him. Finally, on March 13, 1996, Detective Moilanen purchased another two ounces of cocaine from Petitioner.
III. Procedural History
Following a bench trial in Oakland County Circuit Court, Petitioner was convicted of two counts of delivery of less than 50 grams of cocaine and two counts of delivery of between 50 and 224 grams of cocaine. On November 26, 1997, he was sentenced to consecutive terms of one to forty years imprisonment on each conviction for delivery of less than fifty grams, and ten to forty years imprisonment on each conviction for delivery of between 50 and 224 grams.
Petitioner, through his attorney, filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Defendant was entrapped when the police engage[d] in a fishing expedition by using an undirected confidential informant to entice others into delivering drugs to undercover police officers.
II. Where the opportunity to sell drugs was manufactured by the police to entice a person not already known to sell drugs, who himself was living a marginal existence from the proceeds of his disability payments, it was an abuse of sentencing discretion to impose a minimum sentence that will imprison defendant for twenty two years.
Petitioner filed a supplemental brief in pro per presenting the following additional claim:
III. Defendant-appellant was denied the effective assistance of counsel where his attorney did not interview or subpoena the police informant "Darryl Walker," who was the nexus between the defendant and undercover detective Moilanen.
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished per curiam opinion. People v. Bouyer, No. 200537 (Mich.Ct.App. Oct. 30, 1998).
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Bouyer, No. 113552 (Mich. May 25, 1999).
On April 10, 2000, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. Whether Petitioner was entrapped by the police.
II. Whether Petitioner was denied the effective assistance of trial counsel.
III. Whether the trial court abused its discretion in imposing a twenty two to eighty year term of imprisonment or subjecting Petitioner to cruel and unusual punishment.IV. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") 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. Because petitioner's application was filed after April 24, 1996, 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 that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.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 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1); 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").
28 U.S.C. § 2254 (e)(1) provides, in pertinent part:
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.
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, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States 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 1521. 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 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
V. Analysis A. Exhaustion of State Court Remedies
As an initial matter, Respondent claims that Petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254 (b)(1). Section 2254 provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus . . . shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
. . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Thus, a Michigan prisoner challenging his confinement by way of a habeas corpus petition in this Court must first exhaust all available remedies in the courts of the state wherein he was convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). State prisoners in Michigan must raise each claim in the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). If a petition contains both exhausted and unexhausted claims, it must be dismissed so that the petitioner can exhaust all claims before seeking federal habeas relief. Rose v. Lundy, 455 U.S. 509 (1982); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Respondent argues that the petition should be dismissed because Petitioner failed to raise his ineffective assistance of counsel claim in his application for leave to appeal to the Michigan Supreme Court. In his application for leave to appeal to the Michigan Supreme Court, Petitioner stated that he was appealing the Michigan Court of Appeals decision affirming his convictions. He attached to the application for leave to appeal a copy of the Michigan Court of Appeals decision and a copy of the brief filed by his attorney in the Michigan Court of Appeals. Petitioner did not attach a copy of his supplemental pro per brief raising the ineffective assistance of counsel claim. Respondent argues that because Petitioner did not attach a copy of his supplemental brief, he did not present the ineffective assistance of counsel claim to the Michigan Supreme Court and that claim, consequently, is unexhausted.
After carefully reviewing the application for leave to appeal submitted by Petitioner to the Michigan Supreme Court, this Court determines that Petitioner did raise an ineffective assistance of counsel claim in that application. Although he did not attach a copy of the supplemental brief filed in the Michigan Court of Appeals, Petitioner attached a copy of the Michigan Court of Appeals decision, which addressed the ineffective assistance of counsel claim at length, and stated that he was appealing that decision. Thus, this Court holds that Petitioner presented the ineffective assistance of counsel claim in his application for leave to appeal.
B. Entrapment Claim
Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in holding that he failed to establish entrapment. The Court determines that Petitioner's claim of entrapment is a state law issue and therefore not cognizable on habeas corpus review.
It is well-established that entrapment is not a constitutional defense. See Hampton v. United States, 425 U.S. 484, 488-91 (1976) (plurality opinion); United States v. Russell, 411 U.S. 423, 430 (1973);United States v. Tucker, 28 F.3d 1420, 1426-28 (6th Cir. 1994), cert. denied 514 U.S. 1049 (1995). In Tucker, the Sixth Circuit declined to recognize a due process claim based upon a federal informant's conduct during a reverse buy operation in which the police would "pose as sellers of [contraband], set up deals with would-be buyers under carefully controlled conditions, and arrest the purchasers following the sham sale." Id. at 1421 (internal quotation omitted). In examining petitioner's claim that his due process rights were violated, the Sixth Circuit Court of Appeals held that the due process claim involved "nothing more than a claim of entrapment" and therefore failed to state a constitutional claim. Id. The Sixth Circuit therefore held that a claim of entrapment does not raise a constitutional claim.
Accordingly, Petitioner's entrapment claim fails to state a constitutional claim upon which habeas corpus relief may be granted.
C. Ineffective Assistance of Counsel Claim
Next, Petitioner claims that he is entitled to a writ of habeas corpus because his attorney was ineffective thereby depriving him of his Sixth Amendment right to counsel. Specifically, Petitioner argues that his attorney was ineffective in failing to subpoena the police informant Darryl Walker, who Petitioner claims would have supported his claim of entrapment.
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 a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced 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 considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of 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 citations omitted).
The Court further 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), cert. denied 520 U.S. 1257 (1997).
The last state court to issue a reasoned opinion regarding Petitioner's ineffective assistance of counsel claim, the Michigan Court of Appeals, held as follows:
[D]efendant argues that he was denied effective assistance of counsel because his trial attorney did not interview or subpoena the police informant, Darryl Walker. Defendant argues that Walker might have provided exculpatory evidence.
In order to establish ineffective assistance of counsel, a defendant must show that counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's error, the result of the proceeding might have been different. People v. Stanaway, 446 Mich. 643, 687-88 (1994), citing Strickland v. Washington, 466 U.S. 668 (1984) . . . A reasonable probability is a probability sufficient to undermine the outcome . . . Decisions regarding what evidence to present and whether to call a witness are presumed to be matters of trial strategy . . . This Court will not second-guess a defense counsel's strategy not to present certain evidence or call a witness to testify. . . .
Defendant does not argue, nor does the record support, that he and the informant were close friends. The record indicates that defendant only worked with the informant, and that the informant asked defendant to sell drugs to the undercover police officer. Defendant testified that his motive for doing this favor was to make money. Defendant did not testify that he was threatened or induced by Walker, or offered excessive consideration. Moreover, as noted above, the informant was involved only in arranging the initial sale between defendant and the undercover officer. After that, defendant gave the undercover officer his home phone and pager numbers and asked he officer to deal directly with him. Under these circumstances, defendant has not shown that but for defendant's failure to subpoena Walker, there is a reasonable probability that the result of the proceeding would have been different.People v. Bouyer, slip op. at 4.
The Michigan Court of Appeals applied the appropriate Supreme Court precedent, Strickland v. Washington, in evaluating Petitioner's ineffective assistance of counsel claim. Petitioner has failed to establish that the state court's application of Strickland was unreasonable. Other than a conclusory statement that the informant may have provided testimony to help him establish entrapment, Petitioner provides no support for his allegation that his attorney should have subpoenaed the informant. The informant, Darryl Walker, as pointed out by the Michigan Court of Appeals, was involved in only the first encounter between Petitioner and the undercover agent. Further, Petitioner's own testimony at trial does not support his claim that Darryl Walker's testimony would have helped him to establish entrapment. Petitioner testified that Walker was his supplier and that Walker had supplied him with cocaine in the past. Thus, according to Petitioner's own testimony, at best, Walker and he had an ongoing supplier distributor relationship. Given this relationship, Petitioner has failed to establish that Walker's testimony would have been in any way beneficial to him.
Accordingly, Petitioner has failed to show that he is entitled to habeas corpus relief with respect to this claim.
D. Sentencing Claim
Finally, Petitioner claims that the trial court violated his Eighth Amendment right to be free from cruel and unusual punishment when it imposed a minimum sentence of twenty-two years imprisonment.
There exists no constitutional right to strict proportionality in sentencing. Harmelin v. Michigan, 501 U.S. 957 (1997). However, the Eighth Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment'." United States v. Organek, 65 F.3d 60, 62-63 (6th Cir. 1995); see also United States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994) (holding that, generally, a sentence within statutory limitations does not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374 (1982) (holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and . . . successful challenges to the proportionality of particular sentences should be exceedingly rare") (internal quotations omitted).
The State of Michigan sentencing guideline for delivery of less than fifty grams of cocaine is not less than one year and not more than twenty years imprisonment. M.C.L. 333.7401(2)(a)(iv). The State of Michigan sentencing guideline for delivery of between fifty grams and 225 grams of cocaine is not less than ten years and not more than twenty years. M.C.L. 333.7401(2)(a)(iii). Petitioner was sentenced as a second-time drug offender under M.C.L. 333.7413(2) which permits imprisonment for not more than twice the term otherwise authorized by the offense. Therefore, in sentencing Petitioner to one to forty years imprisonment on each conviction for delivery of less than fifty grams of cocaine, and ten to forty years imprisonment on each conviction for delivery of between 50 and 224 grams of cocaine, the state court sentenced Petitioner in accordance with the Michigan sentencing guidelines.
Accordingly, this Court finds that Petitioner's sentence does not offend the Eighth Amendment and he is therefore not entitled to habeas corpus relief with respect to this claim.
VI. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.