Opinion
Case No. 98-75062
February 15, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Daniel Pacheco, a state prisoner currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, has filed a 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. Procedural History
Following a jury trial in Genesee County Circuit Court, Petitioner was convicted of two counts of kidnapping and two counts of first-degree criminal sexual conduct. He was sentenced to four concurrent terms of 100 to 200 years imprisonment.
Petitioner filed an appeal of right with the Michigan Court of Appeals presenting the following claims:
I. Does defendant/appellant's sentence of 100-200 years, as given by the trial court, need to be reversed pursuant to People v. Moore, 432 Mich. 311 (1989) as it was beyond the discretion of the sentencing judge?
II. Was the failure of the court to give an instruction that the deterioration of mental ability due to the use of drugs over a long period of time and may be the basis of an insanity claim so prejudicial that it requires this court to remand the matter to the trial court for reversal and re-trial in this matter, pursuant to People v. Matulonis, 115 Mich. App. 263 (1982)?
The Michigan Court of Appeals affirmed Petitioner's conviction, but vacated the sentence and remanded to the trial court for resentencing pursuant to People v. Moore, 432 Mich. 311 (1989).
While the remand for resentencing was still pending before the trial court, Petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court presenting the following claims:
I. Was the failure of the court to give an instruction that the deterioration of mental ability due to the use of drugs over a long period of time and may be the basis of an insanity claim so prejudicial that it requires this court to remand the matter to trial court for reversal and retrial in this matter?
II. The trial court's failure to instruct on the question of insanity before expert testimony on the subject was reversible error, even without a request for such an instruction. This was so prejudicial that it requires this court to remand the matter to trial court for reversal and retrial in this matter.
III. Defendant was denied effective assistance of counsel where his attorney, without his consent stipulates to facts which amount to the functional equivalent of a guilty plea.
The Michigan Supreme Court denied leave to appeal. People v. Pacheco, No. 90836 (Mich. Aug. 30, 1991).
On May 10, 1993, Petitioner filed a pro se Motion for Retrial in the trial court. He claimed that he was entitled to a new trial because (1) he received ineffective assistance of trial counsel, (2) the trial court failed to instruct on the insanity defense before such testimony was presented, and (3) the Court erred in not allowing Petitioner to present the victims' school attendance records. The trial court construed Petitioner's motion as a Motion for Relief from Judgment and held that "because defendant raises issues that could have been raised previously, he has the burden of demonstrating `good cause' and `actual prejudice'" for failing to raise them on direct appeal. People v. Pacheco, No. 88-39081-FC, slip op. at 3 (Genesee County Circuit Ct. June 1, 1993). The trial court concluded that Petitioner failed to establish cause and prejudice and therefore denied his motion. Id.
Petitioner then filed an application for leave to appeal the trial court's denial of his motion for retrial. The Michigan Court of Appeals denied leave to appeal "for failure to establish grounds for relief from judgment pursuant to M.C.R. 6.508(D)."People v. Pacheco, No. 180923 (Mich.Ct.App. Feb. 9, 1995). Petitioner next filed a delayed application for leave to appeal the trial court's denial of his motion for retrial in the Michigan Supreme Court, which was also denied for failure to establish grounds for relief pursuant to M.C.R. 6.508(D). People v. Pacheco, No. 102594 (Mich. Nov. 29, 1995).
On remand to the trial court for resentencing, the (Genesee County Circuit Court resentenced Petitioner to four concurrent terms of forty to sixty years imprisonment, to be served consecutive to a sentence previously imposed for prison escape. (Genesee County Circuit Ct. August 31, 1993). Shortly after resentencing, Petitioner filed an Amended Motion for Resentencing in the Genesee County Circuit Court. The Genesee County Circuit Court granted Petitioner's Motion for Resentencing. On August 31, 1993, Petitioner was resentenced to four concurrent terms of twenty to thirty years imprisonment, to be served consecutively to a previous sentence for prison escape. People v. Pacheco, No. 88-39081 (Genesee County Circuit Ct. Aug. 31, 1993).
Petitioner appealed the resentencing in the Michigan Court of Appeals, presenting The following claims:
I. The consecutive sentence imposed by Judge Borradaile at appellant's resentencing of August 31, 1993 violated appellant's right to due process and punished him for exercising his right to appeal from his first sentence.
II. Appellant was sentenced on the basis of inaccurate information and received a disproportionate sentence because he was improperly scored under the sentencing guidelines; specifically offense variables 1, 2, 9 and 12 were improperly scored, appellant must be resentenced.
III. Appellant was denied his right to due process by the retroactive application of the revised guidelines to his sentence.
The Michigan Court of Appeals affirmed Petitioner's sentence.People v. Pacheco, No 168446 (Mich.Ct.App. Nov. 29, 1995).
Petitioner then filed a delayed application for the Michigan Supreme Court presenting the issues presented to the Michigan Court of Appeals and the following additional issue:
I. Did the trial judge have authority to entertain an issue that was abandoned by the prosecution?
The Michigan Supreme Court denied leave to appeal. People v. Pacheco, No. 105362 (Mich. Sept. 27, 1996).
Thereafter, Petitioner filed a motion for relief from judgment in Genesee County Circuit Court, presenting the following claims:
I. The trial court denied defendant his state and federal constitutional rights to a fair trial.
II. Defendant was denied his right to effective assistance of counsel at trial.
III. Defendant was denied his right to effective assistance of counsel on appeal.
The Genesee County Circuit Court denied Petitioner's motion because Petitioner failed to raise these claims on direct appeal or in his first motion for relief from judgment and failed to establish cause and prejudice sufficient to excuse this default.People v. Pacheco, No. 88-39081-FC (Genesee County Circuit Ct. March 27, 1997).
On April 25, 1997, Petitioner filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Pacheco, No. 202785 (Mich.Ct.App. Dec. 22, 1997).
Petitioner then filed an application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Supreme Court, which was also denied. People v. Pacheco, No. 111269 (Mich. Aug. 28, 1998).
Petitioner filed the pending habeas corpus petition on November 30, 1998, presenting the following claims:
I. Petitioner's habeas corpus claims are properly before this court.
II. The trial court violated Mr. Pacheco's federal and state constitutional rights to a fair trial by rushing the participants through the trial in the following manner:
A. Coercing the jury's verdict by beginning deliberations at 10:00 p.m. and taking a verdict at midnight after telling the jury they could not go home until they reached a verdict.
B. Defense counsel was unable to give an opening argument and giving a truncated closing argument.
III. The trial court further violated Mr. Pacheco's federal and state constitutional rights to a fair trial by improperly limiting direct examination for Mr. Pacheco which could have shown a motive for Officer Pizzala to lie against Mr. Pacheco.
IV. The trial court violated Mr. Pacheco's federal and state constitutional rights to cross-examination when refused to allow introduction of complainant's school attendance records to demonstrate her motive to accuse Mr. Pacheco.
V. Mr. Pacheco was denied the effective assistance of trial counsel as required by the state and federal constitutions in the following manner:
A. Counsel admitted that Mr. Pacheco did the acts alleged, which Mr. Pacheco had not admitted.
B. Failing to object to the trial court's rushing the proceedings and giving an inadequate closing argument.
VI. The failure of former appellate counsel to raise the issues set forth herein denied Mr. Pacheco his state and federal constitutional right to appeal and constituted cause for Mr. Pacheco's failure to raise these issues in his appeal of right and resulted in prejudice to Mr. Pacheco.III. Analysis
Respondent argues that Petitioner's claims are barred from review by this Court because they are procedurally defaulted. The doctrine of procedural default provides:
In 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. Carrie, 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. 952 (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 ground 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.
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 judgement 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). To establish cause, a petitioner must present a substantial reason to excuse his procedural default. Rust, 17 F.3d at 161. Petitioner must also prove that he was prejudiced by the constitutional error. Id. Prejudice is not established if there is strong evidence of a petitioner's guilt and a lack of evidence to support his claim. Id.
The last state court to render a reasoned opinion rejecting Petitioner's claims, the Genesee County Circuit Court held as follows:
Defendant admittedly failed to raise at trial or in his appeal of right or in his first motion for relief from judgment the claims of error now asserted. A motion for relief from judgment may not be used as a substitute for direct appeal . . .
In order to raise a claim under M.C.R. 6.500 that could have been presented on direct appeal, a defendant must show cause for failing to raise the claim at the appropriate time and prejudice for the alleged error. . . .
It appears to this Court that defendant's second motion for relief from judgment may constitute an abuse of M.C.R. 6.500 since the grounds asserted — alleged errors in conducting the trial by Judge Washington, and new claims of ineffective assistance at trial and on appeal — were not raised in his first motion for relief from judgment. . . .
Defendant asserts that he should be excused from the rule because he can demonstrate cause for his failure to comply with Michigan law and actual prejudice resulting from the alleged constitutional violations. Defendant claims that his attorneys' failure to raise his present issues at trial and on direct appeal constitutes "cause.". . . .
. . . Defendant's belated claims of ineffectiveness of trial counsel and appellate counsel fail to prove that either of them was ineffective. Absent a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, defendant's allegations must fail. Defendant's second motion for relief from judgment is Denied without further proceedings. M.C.R. 6.508(D).People v. Pacheco, 88-39081-FC (Genesee County Circuit Court March 27, 1997).
Petitioner argues that his claims are not procedurally defaulted because the Michigan Supreme Court did not prohibit successive motions for relief from judgment when it first enacted M.C.R. 6.500 et seq., in 1989. In 1995, the Michigan Supreme Court amended the rules governing motions for relief from judgment to limit criminal defendants to filing one motion for relief from judgment with respect to a conviction except where the motion is based on a retroactive change in the law or on newly discovered evidence. See M.C.R. 6.502(G). Petitioner asserts that because the bar on successive motions was not in effect until August 1, 1995, it was not a firmly established state procedural rule at the time Petitioner filed his first motion for relief from judgment. However, the trial court based Petitioner's procedural default on his failure to establish cause and prejudice for falling to present his claims on direct appeal pursuant to M.C.R. 6.508(D)(3), not on M.C.R. 6.502(G)'s ban on successive motions.
M.C.R. 6.508(D)(3) was a fairly established state procedural rule when Petitioner's claims were procedurally defaulted in state court. Although Petitioner was convicted prior to the promulgation of M.C.R. 6.508(D), his appeal of right was still pending before the Michigan Court of Appeals when M.C.R. 6.508 (D) was enacted on October 1, 1989. Petitioner's appeal to the Michigan Supreme Court was not decided until December 10, 1990, over fourteen months after M.C.R. 6.508(D) was enacted. Petitioner could have filed a supplemental brief raising his additional claims during that fourteen month period. Moreover, Petitioner's application for leave to appeal to the Michigan Supreme Court was filed on January 30, 1991, at which time M.C.R. 6.508(D) was clearly a fairly established state procedural rule. Although Petitioner did raise a new claim in his application for leave to appeal, he failed to present the additional claims which he ultimately raised in his motion for relief from judgment. Accordingly, Petitioner's failure to raise the pending claims on direct appeal in state court is an adequate and independent state ground barring habeas review. See Jones v. Toombs, 125 F.3d 945, 947 (6th Cir. 1997) (holding that M.C.R. 6.508(D) was an adequate and independent state rule barring habeas review where it was applied to a default occurring after the rule's enactment); Alvarez v. Straub, 64 F. Supp.2d 686, 694 (E.D. Mich. 1999); Lyons v. Caruso, 1999 WL 1252916, *4 (6th Cir. 1999).
Therefore, the state court's judgment rested on an adequate and independent state procedural bar and the doctrine of procedural default is invoked. Thus, this Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Therefore, this Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In the instant case, Petitioner claims that his attorney's ineffectiveness constitutes "cause." The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted). An ineffective assistance of counsel claim presents a mixed question of law and fact. West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). Therefore, to determine whether Petitioner has established "cause" for his procedural default, the court must determine whether the last to state court to review Petitioner's ineffective assistance of counsel claim reasonably applied Supreme Court precedent governing ineffective assistance of counsel claims.
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 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 Genesee County trial court held that Petitioner's appellate counsel did not render constitutionally ineffective assistance of counsel because Petitioner failed to establish that counsel's performance was deficient. This Court determines that the issues Petitioner asserts should have presented on direct appeal lacked merit. Therefore, the state court's holding that appellate counsel was not ineffective for declining to present meritless claims is a reasonable application of Supreme Court precedent.
Because Petitioner has failed to establish that his attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. His claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298 (1995).
The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. "To be credible, such a claim requires petitioner to support 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." Id.
Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented to the trial court. Accordingly, Petitioner's claims are procedurally barred.
IV. Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
JOHN CORBETT O'MEARA UNITED STATES DISTRICT JUDGE
DATE: FEB 15 2000