Opinion
CIVIL ACTION NO. 99-CV-76207-DT.
November 29, 2000.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner David Daniel Dusseau, a state prisoner currently confined at the Alger Correctional Facility in Munising, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of armed robbery, one count of assault with intent to do great bodily harm less than murder, one count of kidnapping, and felony firearm following a jury trial in the Monroe County Circuit Court in 1996. As a fourth habitual offender, he was sentenced to consecutive terms of 40-60 years imprisonment and two years imprisonment on those convictions.
In his petition, Petitioner raises claims concerning the admission of "other acts" evidence, the effectiveness of trial counsel, and the jury instructions on intent. For the reasons stated below, Petitioner's request for habeas relief is denied and the petition for a writ of habeas corpus is dismissed.
I. Statement of Facts
Petitioner's convictions stem from an armed robbery of a store owner in Carleton, Michigan, a police chase, and the kidnapping and robbery of another man in southern Michigan in 1994. The Michigan Court of Appeals described the incidents as follows:
On July 16, 1994, defendant robbed the owner of a market at gunpoint, while his friend, Esdras Hatt, waited outside in the driver's seat of defendant's car. Defendant and Hatt let the police on a high speed chase, during which defendant fired his gun at a police car. The chase ended when the two men crashed their vehicle into a tree and escaped on foot. Still accompanied by Hatt, defendant forced a man at gunpoint to drive them south and later ordered the man out of the car somewhere past the Ohio border. According to Hatt's testimony, which was obtained pursuant to a plea agreement, Hatt and defendant continued driving to California, committing various robberies along the way. The police eventually apprehended defendant and Hatt in Wisconsin. Defendant denied any involvement with the charged crimes, asserting that Hatt committed the charged crimes with an individual named "Mike."People v. Dusseau, No. 199670, *1 (Mich.Ct.App. April 3, 1998).
II. Procedural History
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals raising the same claims contained in the present petition. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished, per curiam decision. People v. Dusseau, No. 199670 (Mich.Ct.App. April 3, 1998). Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Dusseau, No. 112224 (Mich. Dec. 30, 1998).
Petitioner filed the present habeas petition on December 30, 1999, asserting the following claims as grounds for relief:
I. He was denied a fair trial under the Sixth Amendment to the United States Constitution when the trial court admitted evidence of testimony regarding the crimes he allegedly committed following the events which gave rise to the charges of conviction.
II. He was denied the effective assistance of counsel under the Sixth Amendment to the United States Constitution when trial counsel failed to impeach his co-defendant with the prior inconsistent testimony the co-defendant gave during his guilty plea hearing.
III. Petitioner was denied due process the Fifth and Fourteenth Amendments when the trial court failed to instruct the jury that the offenses charged where specific intent crimes which was necessary to satisfy all the elements of the charges beyond a reasonable doubt.
Respondent filed an answer to the petition on October 2, 2000, asserting that it should be denied for lack of merit.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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) (1996).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ 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. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the 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.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied ___ U.S. ___, 119 S.Ct. 2403 (1999).
IV. Analysis A. "Other Acts" Evidence Claim
Petitioner first claims that he is entitled to habeas relief because the trial court erred in admitting "other acts" evidence at trial. Specifically, Petitioner objects to testimony concerning the crimes that he allegedly committed after the charged offenses while traveling in other states.
The Michigan Court of Appeals considered this claim and concluded that Petitioner had waived appellate review of this issue, stating in relevant part:
Defendant argues that the trial court erred in admitting evidence of crimes allegedly committed by defendant after the events giving rise to the charged crimes. We disagree. Defendant's first attorney made an effort, by a pretrial motion in limine, to bar this evidence as too prejudicial, which the trial court declined to decide without hearing the evidence at trial. At trial, defendant was represented by a different attorney, who apparently waived appellate review of this issue. First, in his opening statement, defendant's new counsel referred to the other bad acts that occurred, but attributed those acts to someone else, relying upon an identification defense. Also, defense counsel did not object at trial when the prosecution submitted the evidence of defendant's other bad acts. . . . Third, defense counsel made use of the evidence himself, questioning Hatt about the bank robbery in California. Last, defense counsel objected to the trial court's proposal to instruct the jury in accordance with CJI2d 4.11 and limit the purpose for which the jury could consider the evidence of other bad acts. Defendant's attorney stated that there were "tactical reasons" for not wanting the court to read this instruction. In this case, where the evidence overwhelmingly supported defendant's convictions, we conclude that no manifest justice will result form our failure to review the merits of this issue.People v. Dusseau, No. 199670, *1-2 (Mich.Ct.App. April 3, 1998) (citation omitted).
Habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72 (1977); Couch v. Jabe, 951 F.2d 94 (6th Cir. 1991). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85.
In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion discussing the "other acts" evidence. In dismissing Petitioner's claim, the Court of Appeals relied upon a state procedural bar — trial counsel's waiver of appellate review of the issue by reference to the disputed facts and failure to object to the challenged testimony at trial. People v. Dusseau, No. 199670, *2-3 (Mich.Ct.App. April 3, 1998). The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). The Michigan Court of Appeals dismissed Petitioner's "other acts" evidence claim based upon procedural default — his failure to object at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). In this case, Petitioner neither alleges nor establishes cause for his failure to object at trial.
Moreover, Petitioner cannot establish prejudice, or that a manifest injustice has occurred. It is well-established that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dep't. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993); see also Olsen v. McFaul, 843 F.2d 918, 933 (6th Cir. 1988) (such claims are almost always rejected as grounds for granting a writ of habeas corpus). Instead, questions concerning the admissibility of evidence, as well as its probative or prejudicial value, are properly left to the sound discretion of the trial court. Oliphant v. Koehler, 594 F.2d 547, 555 (6th Cir. 1979). Only where the admission of the disputed evidence rendered the trial "so fundamentally unfair as to constitute a denial of federal rights" may it provide grounds for granting a writ of habeas corpus. Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994).
In this case, the "other acts" evidence was properly admitted to establish Petitioner's identity as a matter of Michigan law. See Mich. R. Evid. 404(b)(1). Further, even if the Court were to find that admission of the "other acts" evidence was erroneous and an error of constitutional magnitude, Petitioner would still not be entitled to relief. For purposes of federal habeas review, a constitutional error that implicates trial procedures is deemed harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), see also O'Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had a substantial and injuries effect or influence upon jury's verdict). A petitioner must establish actual prejudice to warrant habeas relief. Clemmons, 34 F.3d at 357-58 (habeas petitioner did not demonstrate actual prejudice despite the erroneous admission of an unsigned statement at trial, the failure to admit proffered handwriting samples, and the admission of previous convictions). Given the other evidence presented at trial which supported the jury's verdict, including Esdras Hatt's testimony, police testimony, and the victims' testimony, Petitioner cannot establish that he was prejudiced by the admission of the "other acts" evidence. Petitioner is not entitled to habeas relief on this claim.
B. Ineffective Assistance of Counsel Claim
Petitioner next claims that trial counsel was ineffective for failing to impeach Esdras Hatt with his prior inconsistent guilty plea testimony because Hatt testified at trial that he participated in the crime spree under duress but did not mention this factor in rendering his guilty plea.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitionermust establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, 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." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should 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). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
In this case, the Michigan Court of Appeals concluded that Petitioner had not established that trial counsel was ineffective, stating:
[D]efendant asserts that Hatt's testimony at trial that he participated in the charged crimes because defendant threatened Hatt with a gun was inconsistent with Hatt's prior testimony at his guilty plea hearing in which Hatt did not indicate that his participation in the crimes was due to defendant's threats. Defendant did not move for a new trial or a Ginther hearing below. Therefore, our review of defendant's claim of ineffective assistance of counsel is limited to mistakes apparent on the record. . . . This Court will find ineffective assistance of counsel only where a defendant demonstrates that counsel's performance fell below an objective standard of reasonableness and that the representation prejudiced the defendant to the extent that it denied him a fair trial. . . .
Here, the record reveals that defense counsel impeached Hatt's credibility by questioning him about the terms of his plea agreement, which included Hatt's promise to testify against defendant in the instant case, although defense counsel declined to impeach Hatt's credibility with his prior testimony. The cross-examination of witnesses is trial strategy that this Court will not question on review. . . . Therefore, we conclude that defendant has not shown that he was denied a fair trial by the ineffective assistance of counsel.People v. Dusseau, No. 199670, *2 (Mich.Ct.App. April 3, 1998) (footnote and citations omitted).
This Court concludes that the Michigan Court of Appeals' decision is consistent with Strickland and constitutes a reasonable application thereof. Trial counsel impeached Esdras Hatt with his plea agreement such that the jury was well aware of Hatt's incentive to testify against Petitioner. Although trial counsel may have also been able to impeach Hatt with the fact that he did not mention Petitioner's threats in rendering his guilty plea, counsel may have reasonably decided not to do so as a matter of trial strategy. Petitioner has not established that trial counsel's performance was deficient or that he was prejudiced by counsel's conduct. He is thus not entitled to habeas relief on this claim.
C. Jury Instruction Claim
Lastly, Petitioner claims that the trial court erred in failing to instruct the jury that armed robbery and assault with intent to do great bodily harm less than murder are specific intent crimes. Respondent contends that this claim has been procedurally defaulted and is otherwise without merit.
As noted, habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright, 433 U.S. at 85; see also Ylst, 501 U.S. at 803-05; Harris, 489 U.S. at 263-64. The Michigan Court of Appeals rendered the last reasoned opinion discussing Petitioner's jury instruction issue. In dismissing that claim, the Court of Appeals relied upon a state procedural bar — Petitioner's failure to object to the instructions at trial. People v. Dusseau, No. 199670, *2-3 (Mich.Ct.App. April 3, 1998). The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman, 501 U.S. at 750-51. Moreover, a state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the Michigan Court of Appeals dismissed Petitioner's jury instruction claim based upon procedural default — his failure to object to the instructions at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See, e.g., Coleman, 501 U.S. at 753. Petitioner neither alleges nor establishes cause for his failure to object to the jury instructions at trial. Additionally, the record indicates that Petitioner was not prejudiced. As noted by the Michigan Court of Appeals, the trial court properly instructed the jury on the requisite intent for armed robbery and assault with intent to do great bodily harm less than murder. Further, Petitioner has not established that a fundamental miscarriage of justice has occurred in this case. The testimony presented at trial, particularly that of Esdras Hatt, established Petitioner's guilt of the charged offenses. Petitioner's jury instruction claim is thus barred by procedural default, lacks merit, and does not warrant habeas relief.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented. Accordingly,
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.