Opinion
Case Number 00-10292-BC
June 20, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Henry Kendricks, a state inmate currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in custody in violation of his constitutional rights. He challenges his convictions for first-degree murder, Mich. Comp. Laws § 750.316, and possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. He contends that his state trial was unfair because the prosecutor's comments to the jury deprived him of due process of law in violation of the Fourteenth Amendment, and he was not afforded adequate assistance of competent counsel in violation of the Sixth Amendment. The Court finds that the prosecutor's comments did not precipitate a due process violation, and Kendricks' counsel's performance was not constitutionally deficient. The Court, therefore, will deny the petition.
I.
The petitioner's conviction arises out of the shooting death of Anita Simmons on March 28, 1996. A jury trial was conducted in the Recorder's Court for the City of Detroit.
George Dickerson testified that at approximately 7:00 p.m. on March 28, 1996, he went to 3101 Canton Street in Detroit, Michigan, to visit his sister and to buy cocaine. When he arrived at the house, Ms. Simmons was smoking rock cocaine. She was making squeaking noises. Dickerson testified that the petitioner arrived approximately thirty minutes later and told Ms. Simmons to stop making the squeaking noises and to go to the back of the house. She continued to make the noises. Dickerson testified that he saw the petitioner punch Ms. Simmons a few times in the chest. Dickerson then left the room. He testified that a few moments later, he heard two or more gunshots. He then saw Ms. Simmons going into the hallway toward one of the bedrooms. He heard two more shots and saw Ms. Simmons drop to the floor. Dickerson saw the petitioner standing about a foot from Ms. Simmons with a gun in his hand. Dickerson testified that he heard the petitioner say, "Well, the bitch is dead. I done killed this bitch." Petitioner then told Dickerson and his sister Linette Dickerson to "Get the body out." George and Linette Dickerson then moved Ms. Simmons' body into the alley behind the house.
Linette Dickerson testified that she was present in the apartment on Canton on the evening Ms. Simmons was shot. She testified that Ms. Simmons was annoying the petitioner because she continued to make a squeaking noise after the petitioner asked her to stop doing so. Dickerson testified that the petitioner kicked Ms. Simmons and hit her in the face. Dickerson testified that she then went into a back room. While in the back room, Dickerson heard a gunshot coming from the room she had just left. Ms. Simmons then came into the back room, closed the door, and slumped to the floor. Dickerson testified that the petitioner entered the back room, said, "Fuck that bitch, dead anyway," and shot her a couple more times.
Harold Jones testified that he lived in an apartment at 3101 Canton, and that, at approximately 9:00 p.m., on the evening of March 28, 1996, he heard several gunshots. He heard the petitioner say, "Get that bitch out of here," "put her in the alley." Jones testified that he saw the figure of a woman laying in the alley. Jones testified that he then saw the petitioner drive his car into the alley. After the petitioner drove his car into the alley, Jones no longer saw the woman's body in the alley. Ms. Simmons' body was discovered the next morning several miles from the house on Canton.
Dr. Sawait Kanluen, Chief Medical Examiner for Wayne County, testified that Ms. Simmons died from a gunshot wound to the chest and arm. The bullet entered the left side of her chest, passed through her lung and heart, and exited the right side of her chest. Dr. Kanluen testified that Ms. Simmons may have been shot more than once. He also noted that she had an abrasion on her face consistent with a fall.
The petitioner did not testify in his own defense.
The jury found the petitioner guilty of first-degree premeditated murder and felony firearm, and on February 12, 1997, he was sentenced to two years imprisonment for the felony-firearm conviction and a consecutive sentence of life imprisonment for the first-degree murder conviction.
The petitioner appealed his conviction to the Michigan Court of Appeals, presenting the following claims:
I. Defendant was deprived of his right to due process and to a fair trial under the Fourteenth Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution 1963 when the prosecutor argued to the jury that under law premeditation contemplated in law as an element of first-degree murder could last but one second and the trial judge did nothing in his instruction on premeditation to correct the assertion of the prosecutor.
II. Defendant was deprived of his right to effective assistance of counsel at trial under the Sixth Amendment to the United States Constitution and under Section 20, Article 1, Michigan Constitution 1963 when his trial counsel failed to object to the erroneous statement of the prosecutor to the jury concerning the length of time needed for premeditation and failed to request the court for an instruction to correct the prosecutor's statement and failed to communicate to the defendant the plea offer of second degree murder.
The court of appeals granted the petitioner's motion to remand to the trial court for a hearing under People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), to determine fact issues relating to the petitioner's ineffective assistance of counsel claim. As that hearing, his trial attorney testified that he indeed conveyed a plea offer to the petitioner, but that the petitioner decided to reject it and go to trial.
After remand, the Michigan Court of Appeals affirmed the petitioner's conviction. People v. Kendricks, No. 203319 (Mich.Ct.App. July 30, 1999).
The petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented on direct review. The Michigan Supreme Court denied leave to appeal. People v. Kendricks, No. 115463 (Mich. March 28, 2000).
On August 1, 2000, the petitioner filed the pending petition for a writ of habeas corpus, presenting the same claims presented on direct review in state court.
II.
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 the 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 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 (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, 405-06 (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 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 410-11 (emphasis in original).
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
A.
The petitioner claims that he is entitled to habeas corpus relief because he received ineffective assistance of trial counsel. Specifically, he claims that his trial counsel was constitutionally ineffective for (1) failing to object to the prosecutor's statement to the jury regarding the length of time needed for premeditation; (2) failing to request a curative instruction regarding the prosecutor's statements; and (3) failing to communicate to the petitioner a plea offer of second-degree murder.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a habeas petitioner has received 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 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 quotes and 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. at 690. 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 the petitioner's ineffective assistance of trial counsel claims, the Michigan Court of Appeals, held, in pertinent part:
Defendant next argues that he should be granted a new trial because he received ineffective assistance of counsel. We disagree. Defendant moved for an evidentiary hearing on this issue and a Ginther hearing was held; therefore, this issue has been properly preserved for appellate review. To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that under an objective standard of reasonableness counsel made an error so serious that counsel was not functioning as an attorney guaranteed by the Sixth Amendment. . . . The deficiency must be prejudicial to the defendant and the defendant must overcome the presumption that the challenged action is sound trial strategy. . . . "Effective assistance of counsel is presumed, and the defendant bears a heavy burden in proving otherwise." . . .
Defendant argues that defense counsel was ineffective for failing to convey a plea offer for second-degree murder with a sentencing recommendation of twenty-five to forty years' imprisonment. We disagree. After considering the testimony at the Ginther hearing, the trial court found that the plea offer was communicated to defendant and defendant declined the offer. We find that defendant failed to overcome the presumption that he received effective assistance of counsel at trial.
Defendant also argues that defense counsel was ineffective for failing to object to remarks made by the prosecutor regarding premeditation during opening statement and closing argument and failing to request the trial court to instruct the jury that the prosecutor's statements regarding premeditation was erroneous. We disagree. A defense counsel is not required to raise a meritless objection. . . . Because remarks of the prosecutor did not deny defendant a fair and impartial trial, we conclude that defense counsel was not ineffective for failing to object or request a curative instruction.
People v. Kendricks, slip op. at 1-2 (footnote omitted).
Petitioner has failed to show that the Michigan Court of Appeals decision was contrary to or an unreasonable application of Supreme Court precedent. First, Petitioner claimed that his trial counsel failed to inform him of a plea offer of second-degree murder. Following a hearing pursuant to People v. Ginther, supra, the Michigan Court of Appeals made a factual determination that trial counsel did convey the plea offer to the petitioner. On habeas corpus review, this Court presumes that state court factual determinations are correct. 28 U.S.C. § 2254 (e)(1); see also Cremeans, 62 F.3d at 169. The petitioner has failed to present any evidence to call into question the state court's determination that the plea offer was conveyed to the petitioner. Thus, the petitioner's ineffective assistance of counsel claim regarding the plea offer is meritless.
Next, the petitioner claims that trial counsel was ineffective for failing to object to the prosecutor's statements regarding premeditation. In her opening statement, the prosecutor made the following statement regarding premeditation:
. . . [T]his is a specific intent crime and I have to show that there was premeditation. I have to show that . . . he at some point formed the intent to shoot and kill her. . . . Was there something that went on beforehand or, you know, did he just come in here and start picking on her and beating her and then just decided to kill her, because there is no prescribed time for premeditation, none. It can be the same amount of time it takes you to decide whether to go through a yellow light or stop; that's premeditation. The same amount of time it takes you to go to your closet and decide what you're going to put on; that's aforethought. And that's really all that this is. You have to make a decision was there a point in which he decided he was going to kill her. Did he walk in and decide then to kill her? Did he form that at some point but if you find that he did then that is part of premeditation.
Tr., 1/27/97, at 21-22.
In her closing statement, the prosecutor made the following argument with respect to premeditation:
But if you find that when he was punching and kicking her he formed the intent to then kill her that is premeditation. And the Judge will tell you when he reads you the instructions that there is no fixed, allotted time for premeditation to form. So, when I gave you that example that it's the amount of time it takes to decide to even go through the yellow light or stop, that's premeditation because you gave it thought, you thought about it. When you get up in the morning and you look at your closet and you're looking for something to jump up at you that's premeditation because you stopped, you're stopping to reflect on what you're doing, that's it. It doesn't have to be an hour. You don't have to write it down. You don't have to meet people in the basement like you've seen in the movies and plot it out. If you just take a second and you decide if while you're doing something — suppose you're making a cake and you're making the cake and you go up and you get the flour and you say, oh, there's some lemon, oh, there's some almond, I'll make an almond cake. I'll put some of this there, — that is reflection. There is no certain amount of time.
Tr., 1/28/97, at 162-63.
Under Michigan law, while the minimum time required to premeditate is "incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" People v. Vail, 393 Mich. 460, 469, 227 N.W.2d 535, 538 (1975). An opportunity for a "second look" may occur in a matter of seconds, minutes, or hours, depending upon the totality of the circumstances surrounding the killing. Johnson v. Hofbauer, 159 F. Supp.2d 582, 596 (E.D. Mich. 2001) (citing People v. Berthiaume, 59 Mich. App. 451, 456, 229 N.W.2d 497, 500 (1975)).
The prosecutor's statements regarding premeditation were not inconsistent with Michigan law regarding premeditation. A prosecutor may argue all reasonable inferences that may be drawn from the evidence admitted at trial as they relate to the prosecutor's case. See United States v. Francis, 170 F.3d 546, 552 (6th Cir. 1999). The prosecutor was free to argue that, based upon the evidence presented, the petitioner had sufficient time to premeditate the murder. The petitioner has failed to show that, in making this argument, the prosecutor misstated applicable Michigan law. Thus, the petitioner has failed to show that his trial attorney was ineffective in failing to object to the prosecutor's proper argument.
Accordingly, the petitioner is not entitled to habeas corpus relief with respect to his ineffective assistance of counsel claim.
B.
The petitioner claims that he is entitled to habeas corpus relief because his rights to due process and a fair trial were violated because the prosecutor committed misconduct. The petitioner claims that the prosecutor engaged in misconduct in describing premeditation and deliberation during her opening statement and closing argument. The respondent argues that federal habeas review of this claim is barred because the claim is procedurally defaulted.
The doctrine of procedural default provides that
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30.
When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state grounds [sic] only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar.
Simpson, 94 F.3d at 202. Whether the independent state ground procedural or substantive — is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885 (2002).
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether the petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. See Coleman, 501 U.S. at 729-30.
The last state court to issue a reasoned opinion addressing this claim, the Michigan Court of Appeals, held, in pertinent part:
Defendant first argues that the prosecutor committed misconduct during opening statement and closing argument by stating that premeditation and deliberation could take place in one second. We disagree. Defendant failed to object to the arguments of the prosecutor that he now alleges were improper; therefore, appellate review is precluded unless a curative instruction could not have eliminated the prejudicial effect or where failure to consider the issue would result in a miscarriage of justice. . . . The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Paquette, 214 Mich. App. 336, 342 (1995).
Viewing the prosecutor's comments in context, the prosecutor correctly explained that premeditation and deliberation merely require that the interval between thought and action should be long enough for reflection, but that that interval is incapable of exact determination. . . . Accordingly, we conclude that defendant was not denied a fair and impartial trial. Failure to further review this unpreserved issue would not result in a miscarriage of justice.
People v. Kendricks, slip op. at 1.
The Michigan Court of Appeals referred to the contemporaneous objection rule and outlined the requirements for allowing review on the merits for those defendants who do not preserve their claims of error by objecting in the trial court. However, the state appellate court neither decided that the requirements were satisfied nor that the claim was procedurally defaulted. Rather, it turned to the merits of the claim and found against the petitioner. The state procedure did not form the basis of the court's decision and is not adequate to support its judgment as an independent ground. The procedural default, therefore, is no bar to consideration of the petitioner's claim by this Court.
Prosecutorial misconduct will form the basis for a new trial, and habeas relief, only if the relevant misstatements were so egregious so as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). See also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). In deciding whether prosecutor misconduct warrants habeas corpus relief, the court must first decide whether the prosecutor's comments were improper and then determine whether the remarks were sufficiently flagrant by considering four factors: (1) the likelihood that the statements would prejudice the defendant or mislead the jury; (2) whether the remarks were isolated or part of a pattern; (3) whether the prosecutor's statements were deliberately or accidentally presented to the jury; and (4) whether the other evidence against the defendant was substantial. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000) (citing United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994).
The Michigan Court of Appeals identified the correct legal standard as established by the United States Supreme Court. ("The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.") The court also decided that the prosecutor's statements did not misrepresent Michigan law on premeditation and deliberation. Thus, it is unlikely that the remarks would mislead the jury. The remarks were part of the theme of closing argument and deliberately presented to the jury, but because they were not improper they did not negatively affect the fairness of the petitioner's trial. Finally, the evidence that the petitioner intended to kill the victim, and that he had sufficient time to subject his intentions to a second look, was substantial.
This Court concludes, therefore, that the decision of the Michigan Court of Appeals was not contrary to, nor did it constitute an unreasonable application of, federal law as established by the United States Supreme Court. Habeas relief is not called for in this case.
III.
The petitioner has not established that he is in Michigan's custody in violation of the Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.