Opinion
Case No. 99-CV-76219-DT
June 29, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is before the Court on petitioner Tadarall Dejuan Hackney's habeas corpus petition under 28 U.S.C. § 2254. Petitioner is an inmate at the Newberry Correctional Facility in Newberry, Michigan.
On September 20, 1995, a Recorder's Court jury in Detroit, Michigan convicted Petitioner of: (1) two counts of armed robbery, MICH. COMP. LAWS ANN. § 750.529; MICH. STAT. ANN. § 28.797; (2) one count of first-degree home invasion, MICH. COMP. LAWS ANN. § 750.110a (2); MICH. STAT. ANN. § 28.305(a)(2); (3) one count of possession of a short-barreled shotgun, MICH. COMP. LAWS ANN. § 740.224b; MICH. STAT. ANN. § 28.421(2); and (4) one count of possession of a firearm during the commission of a felony, MICH. COMP. LAWS ANN. § 750.227 (b); MICH. STAT. ANN. § 28.424(2). The convictions arose from the armed robbery of Willie Barksdale and Damon Turner.
Both victims testified that they were walking down the street when a car
(described as a 1994-95 green Intrepid) stopped near them and two men got out. Each had a gun. [Petitioner], identified as the driver, possessed a sawed-off shotgun. Turner's wallet was taken. Barksdale told [Petitioner] that he did not have any money but for some reason [he] agreed to take [Petitioner] to a friend's house where he could take televisions and such. [Petitioner] threatened to kill them if this was a ruse or set-up. The four men got into the car.
[Petitioner] was the driver and Barksdale (sic) was in the front passenger seat. The house was a few blocks away. When they arrived at the house, Turner and [Petitioner's] cohort remained in the car while [Petitioner] and Barksdale went into the friend's upper flat. Under [Petitioner's] gun, Barksdale was made to remove two televisions and a video game. These were loaded into the trunk of the car. As he placed the items in the trunk Barksdale made a mental note of the car's license plate numbers and recalled that the numbers were 760 or 762. (It is noted that the car and these numbers matched when [Petitioner] was arrested in the car after a high speed pursuit by the police; the actual number was 760. Also, the police recovered a sawed-off shotgun that [Petitioner] tossed from the car during the chase.) After taking items from the upper flat, [Petitioner] asked Barksdale about the lower flat. [Petitioner] pointed the shotgun at Barksdale and made him break and enter the lower flat. With the shotgun pointed at him, Barksdale was directed to remove a stereo system, video system and a televison. This required several trips back and forth to the car. On a return trip, Barksdale was able to sneak out the back door. Shortly thereafter, Turner was released; and the police were called.
Barksdale gave a description of the driver/[Petitioner] as 6'1" to 6'2" in height, weight as 210 to 240 pounds, and in his late twenties to early thirties. He was wearing blue jeans, work boots, a blue down coat and skull cap. In addition to the initial contact and ride to the house, he was in the lighted house with [Petitioner] for about 15 minutes when he was forced to remove and load the various items. Turner described [Petitioner] as 6'4", and about 220 pounds. [Petitioner] was arrested the following day when a police officer observed a green Intrepid similar to one that had been reported stolen on December 11, 1995. This led to a high-speed chase and the arrest of [Petitioner]. In addition to the shotgun, the police found in the car a blue, down coat similar to the one described by the victim.People v. Hackney, No. 95-0839 (Recorder's Ct. Jan. 27, 1997).
The trial court sentenced Petitioner to concurrent terms of: ten to thirty years in prison for armed robbery; ten to twenty years in prison for home-invasion; and three to five years in prison for possession of a short-barreled shotgun. Petitioner received a consecutive sentence of two years in prison for the felony firearm conviction.
Petitioner subsequently filed a motion for new trial in which he alleged ineffective assistance of trial counsel. The trial court held an evidentiary hearing and then denied the motion for new trial. See id. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished per curiam opinion, and the Michigan Supreme Court denied leave to appeal. See People v. Hackney, No. 190990 (Mich.Ct.App. Mar. 6, 1998); People v. Hackney, No. 111810 (Mich.Sup.Ct. Dec. 30, 1998).
On January 11, 2000, Petitioner filed his habeas corpus petition, raising two issues:
1. WAS THE STATE COURTS' RULING ON PETITIONER'S FIRST HABEAS CLAIM CONTRARY TO OR AN UNREASONABLE APPLICATION OF ESTABLISHED CONSTITUTIONAL LAW, WHERE THE PROSECUTION FAILED TO PRODUCE SUFFICIENT EVIDENCE AS TO THE DIMENSIONS OF THE SHOTGUN, AND WHERE THERE WERE NO INSTRUCTIONS ON THIS REQUISITE ELEMENT OF THE OFFENSE?
2. WAS THE STATE COURTS' RULING ON PETITIONER'S SECOND HABEAS CLAIM CONTRARY TO OR AN UNREASONABLE APPLICATION OF ESTABLISHED CONSTITUTIONAL LAW, WHERE PETITIONER WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY THE INTRODUCTION OF THE RESULTS OF A PHOTOGRAPHIC LINEUP CONDUCTED WHILE HE WAS IN CUSTODY, AND WHERE DEFENSE COUNSEL'S FAILURE TO MOVE TO SUPPRESS THE EVIDENCE ON THIS GROUND OR TO CHALLENGE THE IN-COURT IDENTIFICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL?
II. Discussion
A. General Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim on the merits —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523. "[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." Id. at 1521.
B. The Conviction for Possession of a Short-Barreled Shotgun
Petitioner's first claim is that the prosecution failed to produce sufficient evidence to convict him of possessing a short-barreled shotgun. Petitioner asserts that the size of the shotgun for which he was on trial was a necessary element of the offense and that the prosecution failed to prove this element beyond a reasonable doubt. More importantly, alleges Petitioner, the trial court failed to instruct the jury on the requisite dimensions of a short-barreled shotgun.
1. Sufficiency of the Evidence
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). After Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original).
The Jackson "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16. In Michigan, it is illegal to possess a short-barreled shotgun, which is defined as "a shotgun having 1 or more barrels less than 18 inches in length or a weapon made from a shotgun, whether by alteration, modification, or otherwise, if the weapon as modified has an overall length of less than 26 inches." MICH. COMP. LAWS ANN. § 750.222(g); MICH STAT. ANN. § 28.419(g). Simply stated, the law proscribes possession of a shotgun "with a barrel under eighteen inches or a modified shotgun with an overall length of less than twenty-six inches." People v. Walker, 166 Mich. App. 299, 301 (1988). Possession of a short-barreled shotgun may include actual possession or constructive possession, and it may be proved by circumstantial or direct evidence. People v. Hill, 433 Mich. 464, 466, 469 (1989).
A review of the record in this case reveals no testimony regarding the actual length of the shotgun that Petitioner was charged with possessing. In a case similar to Petitioner's, the Seventh Circuit noted that there was no failure of proof. However, the shotgun was in the jurors' presence during their deliberations, and the jurors could observe that its barrel length was the required length. See United States v. Crowell, 559 F.2d 1084, 1085 (7th Cir. 1976).
In Petitioner's case, the trial court stated that the jurors could ask to see the gun during their deliberations, but no request to see the gun was placed on the record. See T II at 162-70; T III at 1-6. The Court therefore presumes that the shotgun in evidence was not given to the jurors while they deliberated Petitioner's case and that they did not have any means to measure it.
Nevertheless, as the Michigan Court of Appeals recognized,
the weapon that police recovered after [Petitioner] threw it from a car window was itself introduced into evidence at trial. Every witness that described the weapon described it as a sawed-off shotgun. Defense counsel never argued that the weapon was not short-barreled. Instead, defense counsel tried to show that [Petitioner] did not have possession of the shotgun. There was no issue at trial as to whether the shotgun was a short-barreled shotgun.Hackney, Mich. Ct. App. No. 190990, at 3. The state court concluded that there was sufficient evidence presented at trial to convict Petitioner of possessing a short-barreled shotgun.
The state court's findings are supported by the record. Willie Barksdale identified Petitioner at trial as the person who carried a short, sawed-off shotgun during the armed robbery. See T I at 20-25 (emphasis added). The gun that police officers observed Petitioner throw out his car window was admitted into evidence as Exhibit 9 without objection. See T II at 93. Damon Turner thought the gun looked like the one that he saw in Petitioner's possession on the night of the armed robbery. See id. at 6-12. Police Officers Robert Audette, Richard Campbell, and Chris Cole described the gun in evidence as a sawed-off shotgun. See id. at 31, 61, 71-74.
"T" refers to the transcript of trial, which consists of three separately paginated volumes: "T I" (September 18, 1995); "T II" (September 19, 1995); and "T III" (September 20, 1995).
In her closing argument, the prosecutor intimated that the gun in evidence was an example of a short-barreled shotgun. She said:
The other crimes are possession of a short-barreled shotgun. Which pretty much, the elements are as it states. That somebody possessed a short-barreled shotgun; such as Exhibit No. 9.Id. at 102.
Defense counsel acknowledged the shotgun in his closing argument, suggesting that the gun did not belong to Petitioner. At no point did he argue that the weapon in evidence was not a short-barreled gun; instead, he claimed that the prosecution had the wrong person on trial. See id. at 107, 125-26.
To summarize, the size of the shotgun in evidence was not a disputed issue, and Petitioner has failed to show here that the weapon was not a short-barreled shotgun. A rational trier of fact could have concluded from the evidence, viewed in the light most favorable to the prosecution, that Petitioner possessed a short-barreled shotgun. Moreover, federal habeas courts must give deferential review to state court decisions on sufficiency-of-the-evidence claims. Gomez v. Acevedo, 106 F.3d 192, 193-94 (5th Cir.), vacated on other grounds, 522 U.S. 801 (1997). For these reasons, the state court's decision on Petitioner's sufficiency-of-the-evidence claim was not objectively unreasonable, and Petitioner is not entitled to habeas relief.
2. The Jury Instructions
Petitioner contends that the trial court failed to instruct the jury on the requisite dimensions of a short-barreled shotgun. The state court concluded on review of Petitioner's claim that the issue was not preserved for its review.
When a habeas petitioner fails to obtain consideration of a claim by a state court. . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case.Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989). a. The Procedural Rule and its Enforcement
Although Respondent has not raised procedural default as a defense, the Court may raise the issue sua sponte. Elzy v. United States, 205 F.3d 882, 886-87 (6th Cir. 2000).
State law requires criminal defendants to object at trial in order to preserve a challenge to the jury instructions for appellate review. See People v. Van Dorsten, 441 Mich. 540, 544-45 (1993) (quoting People v. Kelly, 423 Mich. 261, 271-72 (1985)). Petitioner did not object to the jury instructions on possession of a short-barreled shotgun. See T II at 159-65.
As previously explained, the Michigan Court of Appeals enforced the contemporaneous-objection rule by stating that Petitioner's claim about the jury instructions was not preserved for appellate review because Petitioner failed to object to the jury instructions at trial. The Michigan Supreme Court did not set aside this decision and rule on the merits of Petitioner's claim. Thus, the last state court to render a reasoned judgment on Petitioner's claim "clearly and expressly" stated that its judgment rested on a state procedural bar. Harris, 489 U.S. at 263; see Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (concluding that a court must "look through" unexplained orders to the last reasoned decision to determine the basis for the judgment).
b. Adequate and Independent State Ground
The state court's reliance on Petitioner's failure to object to the jury instructions was an adequate and independent state ground for foreclosing review because the contemporaneous-objection rule was firmly established and regularly followed before Petitioner's trial. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (concluding that courts may consider a state procedural rule to be an adequate and independent ground for foreclosing review if the rule was "firmly established and regularly followed by the time as of which it [was] to be applied"); see also Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding); People v. Handley, 415 Mich. 356, 360 (1982) (stating as early as 1982 that "instructional error should not be considered on appeal unless the issue has been preserved by an objection to the instruction in the trial court"). Accordingly, Petitioner must show cause for his procedural error and resulting prejudice or a miscarriage of justice.
c. Cause and Prejudice: Miscarriage of Justice
Petitioner has not alleged "cause" for his procedural default. Nor does it appear that he could do so. To establish "cause" for a state procedural default, a habeas petitioner must show that some objective factor external to the defense impeded efforts to comply with the procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments to compliance with a procedural rule are an unavailable claim, some interference by officials making compliance impracticable, and ineffective assistance of counsel. Id.
The only arguable cause for Petitioner's default would be a claim of ineffective assistance of counsel. However, Petitioner did not raise defense counsel's failure to object to the jury instructions as an independent claim in state court. Consequently, an allegation that defense counsel should have objected to the jury instructions has not been exhausted as an independent claim in state court and cannot serve as cause for Petitioner's procedural default. Carrier, 477 U.S. at 488-89; Lyons v. Stovall, 188 F.3d 327, 332-33 (6th Cir. 1999) (noting that the exhaustion requirement is not satisfied unless the prisoner argued his claim in state court on the same ground that he asserted it in federal court), cert. denied, ___ U.S. ___, 120 S.Ct. 2197 (2000). The Court need not determine if Petitioner was prejudiced by the alleged violation of federal law because he has not shown cause for his noncompliance with a state procedural rule. See Smith v. Murray, 477 U.S. 527, 533 (1986).
Petitioner asserted ineffective assistance of trial counsel as an independent claim in state court, but not on the same basis. He claimed in state court that defense counsel should have moved to suppress the identification made at the photographic show-up and at trial.
Whether this Court's failure to consider Petitioner's claims on the merits will result in a miscarriage of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Carrier, 477 U.S. at 496. Petitioner does not claim to be innocent, and he has not "support[ed] his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. Therefore, a miscarriage of justice will not result from a failure to review Petitioner's claim about the jury instructions. His state procedural default bars habeas review of that claim on its merits.
C. Identification Issues
Petitioner's second and final claim is that he was deprived of a fair trial by the admission of evidence concerning a photographic show-up, which was conducted while he was in custody. Petitioner alleges that defense counsel's failure to move to suppress identification of him at the photographic show-up and later in court constituted ineffective assistance of counsel.
Willie Barksdale identified Petitioner from a group of several photos, but Damon Turner did not recognize anyone in the photos. See T I at 49-50, 89, 123-24.
1. The Array
Petitioner's allegation that the photographic array was improper is based on a rule announced in People v. Anderson, 389 Mich. 155 (1973). The rule prohibits identification by photograph when the accused is in custody. Id. at 186-87.
Petitioner's allegation that the police violated state law as set forth in Anderson does not state a claim on which habeas relief may be granted. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). The Court may grant habeas relief only on the ground that the Petitioner is in custody in violation of federal law. 28 U.S.C. § 2254 (a).
Furthermore, convictions based on eyewitness identification at trial following a pretrial identification by photograph are constitutional provided that the photographic identification procedure was not impermissibly suggestive. Simmons v. United States, 390 U.S. 377, 384 (1968). The record does not support Petitioner's allegation that the photographic array was suggestive. Police Officer Charles Spruce testified at trial that he gathered photographs that depicted men who resembled Petitioner, and an attorney was present to ensure fairness. See T II at 83-87. The state court's conclusion that the photographic identification of Petitioner was properly admitted at trial was objectively reasonable, and Petitioner's claim about the photographic array does not entitle him to habeas relief
2. The Assistance of Counsel
Petitioner's related claim is that defense counsel's failure to object to the photographic array and in-court identification constituted ineffective assistance of counsel. To prevail on his claim, Petitioner must demonstrate that
counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel' guaranteed [petitioner] by the Sixth Amendment. Second, [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive [petitioner] of a fair trial, a trial whose result is reliable. Unless [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
The proper standard for attorney performance is "reasonably effective assistance." Id. Petitioner must demonstrate that his attorney's "representation fell below an objective standard of reasonableness." Id. at 688. To satisfy the prejudice prong of the standard for ineffective assistance of counsel, Petitioner must establish 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 94.
a. Defense Counsel's Performance
Officer Spruce testified that he conducted a photographic array as opposed to a corporeal line-up because he thought the photographic array was fairer to Petitioner. He claimed that he chose not to conduct a line-up because there were insufficient people in custody with Petitioner's physical characteristics. No one in custody was as large as Petitioner or had such short hair. See T II at 83-84.
Officer Spruce's reason for using photographs was a legitimate basis under Michigan law for asking witnesses to view a photographic array. See Anderson, 389 Mich. at 186 n. 23 (listing situations, such as the unavailability of people with the defendant's physical characteristics, which may justify the use of photographs). And although Petitioner claims that he participated in a number of line-ups with men of approximately the same size, the trial court found no evidence (other than Petitioner's testimony at the evidentiary hearing) that Petitioner appeared in a live line-up. See Hackney, Recorder's Court No. 95-0389, at 3.
Furthermore, it appears that the photo display was not impermissibly suggestive. Officer Spruce testified that Petitioner had a bald head at the time, see T II at 84, and the presentence report stated that Petitioner was 6'2" and over 310 pounds. See Hackney, Recorder's Court No. 95-03 89, at 3. Officer Spruce gathered photographs that depicted large, stocky men with short hair or bald heads and with similar complexions. He also took age into consideration. See T II at 83-85. A defense attorney approved the choice of photographs. See id. at 86-87.
b. Prejudice
Both the trial court and the Michigan Court of Appeals concluded that Petitioner was not prejudiced by defense counsel's alleged mistake. The trial court noted that: (1) trial counsel cross-examined the officer who conducted the photographic show-up; (2) the jury was informed about the reason for the use of photographs; and (3) Willie Barksdale identified Petitioner in court and never wavered in his identification of him. See Hackney, Recorder's Court No. 95-0839, at 4. "Further, [Barksdale] had the presence of mind to look at and remember the car license plate number. When [Petitioner] was arrested the following day in the same car with the matching license plate, he possessed a sawed off shotgun and a blue, downed (sic) coat (as had been described by the eye witness)." Id.
The Michigan Court of Appeals noted that
[t]here was ample evidence upon which the jury could have relied to convict [Petitioner]. The witness described [Petitioner's] car, gave a partial license plate number for that car, and stated that [Petitioner] was armed with a sawed-off shotgun. Police officers observed [Petitioner] throw a sawed-off shotgun from the window of a car that matched the witness's description.Hackney, Mich. Ct. App. No. 190990, at 2.
There is not reasonable probability that the result of the trial would have been different had defense counsel objected to the photographic show-up and in-court identification. Petitioner has failed to demonstrate that defense counsel's performance prejudiced the defense and that the state court's decision was an unreasonable application of Strickland.
III. Conclusion
Petitioner's claim about the jury instructions is barred from review on the merits by his state procedural default. His remaining claims lack merit because the state court's decision was not an unreasonable application of clearly established federal law as determined by the Supreme Court. Accordingly, the Court DENIES the habeas petition.