Opinion
Case No. 01-10198-BC
October 15, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Garwood Smith, presently on parole and assigned to the Calhoun/Battle Creek Parole Office in Battle Creek, Michigan, filed this pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 while he was confined at the Camp Koehler Correctional Facility in Kincheloe, Michigan. He challenges his state court conviction on one count of delivery of less than fifty grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv), and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. The Court concludes that the decision of the Michigan Court of Appeals affirming the petitioner's convictions was neither contrary to, nor an unreasonable application of clearly established federal law. Accordingly, the petition will be denied.
I.
The petitioner's conviction was based on a controlled purchase of narcotics that occurred on June 6, 1996. On that date, officers from the Bay Area Narcotics Enforcement Team (BAYANET), a so-called "concept unit" consisting of the joint forces of federal, state and local police agencies engaged in the enforcement of the controlled substance laws, stopped a vehicle being driven by Gerardo Facundo. The officers conducted a search of the vehicle and uncovered a quantity of cocaine. The officers arrested Facundo and transported him to the State Police post where he agreed to make a controlled buy of cocaine from his supplier, whom he identified as the petitioner. The officers gave Facundo $600 in pre-marked funds and drove him to the Tuscola Motel, in Tuscola County, Michigan, where the petitioner was staying. Prior to going to the Tuscola Motel, officers searched Facundo thoroughly and did not find any cocaine on him. The officers also equipped Facundo with a body transmitter that would allow them to monitor conversations.
At the petitioner's trial, Facundo testified that he entered the petitioner's motel room and asked the petitioner if he had "anything." The petitioner reached down by a television set, grabbed a bag, and handed Facundo three packages of cocaine. Facundo gave the petitioner the $600 in pre-marked funds and then left the motel room. Facundo got back into the police vehicle and gave the cocaine to the one of the police officers.
After Facundo made the controlled buy, several BAYANET officers went to the motel room to arrest the petitioner. One of the officers, Detective John S. May, Jr., knocked on the motel door. When petitioner opened the door, May informed him that he was under arrest. Petitioner began walking backwards and reached behind his back. Another officer on the scene, Lieutenant Robert Thomas, pulled out his gun. The petitioner then placed his hands in the air and ran towards the bathroom. May raced after the petitioner and the two struggled in the bathroom as the petitioner attempted to flush a white powdery substance down the toilet. The petitioner was arrested and the officers searched the motel room, and recovered the $600 in pre-marked funds that had been given to Facundo to purchase the cocaine. Police also recovered Inositol powder (an agent used to "cut" cocaine), and plastic baggies from the room. Following his arrest, the petitioner agreed to work with the police and attempted to make controlled purchases of cocaine in Bay County. However, the petitioner's efforts proved unsuccessful.
On June 14, 1996, the petitioner confronted Facundo at work and hit him over the head with a beer bottle. The petitioner accused Facundo of setting him up. Facundo swung a 2 × 4 at the petitioner. The petitioner proceeded to break the headlights of Facundo's truck.
During his testimony, Facundo admitted that he was facing charges of possession with intent to deliver cocaine after being arrested and indicated that he had agreed to cooperate and testify against the petitioner. However, Facundo denied that the prosecutor had made any promises of leniency to him in exchange for his testimony and he further denied any expectation of receiving any leniency in exchange for his cooperation. However, on cross-examination, Facundo acknowledged that he had used and sold cocaine before and previously had been addicted to the drug. Facundo admitted that he had cooperated in the past with the police as a confidential informant and had received benefits in the past in exchange for working with the police. Facundo denied planting any cutting agents or baggies in the petitioner's motel room.
Daniel Nuncio testified for the defense. Nuncio indicated that he was staying with the petitioner in the motel room at the Tuscola Motel on the day of the raid. Nuncio was drunk at the time and "vaguely" heard Facundo in the room. Nuncio did not observe any cocaine or any transaction, nor did he see the petitioner carry a bag of cocaine toward the bathroom. Nuncio admitted that he had been convicted in 1997 for filing a false police report after he had been drinking.
The petitioner testified in his own defense. He indicated that he was staying at the Tuscola Motel while working with Facundo in the construction business. The petitioner testified that Facundo owed him $400 in back wages and denied selling any cocaine to Facundo. He indicated that he used the plastic baggies found in his motel room for his lunches. The petitioner claimed that when Facundo came to see him on June 6, 1996, he reached into his underwear and offered him either money or cocaine as payment for the back wages owed to him. The petitioner told Facundo that he wanted to be paid with money. Facundo then gave him the money and put the cocaine back into his pocket and walked out the door. Shortly thereafter, the petitioner answered the door and was confronted by individuals armed with guns. The petitioner testified that he struggled with these men in the bathroom, but denied reaching for any cocaine or flushing the toilet.
The petitioner was found guilty of delivery of cocaine on January 20, 1998. The petitioner's conviction and sentence were affirmed on appeal. People v. Smith, No. 210613 (Mich.Ct.App. August 4, 2000); Iv. den. 624 N.W.2d 194 (Mich. 2001). Additional facts will be discussed when addressing the petitioner's claims. The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The trial court violated [the petitioner]'s due process right by refusing to suppress the evidence which the police obtained following [the petitioner]'s arrest without a warrant in a motel room, where [the petitioner] did not consent to the police entering the room and no exigent circumstances existed.
II. The prosecutor violated [the petitioner]'s due process rights by allowing an informant to falsely testify to not expecting leniency and failed (sic) to reveal a sentencing agreement.
III. The trial court violated [the petitioner]'s due process rights by admitting evidence that [the petitioner] offered to make an undercover purchase for the police following [his] arrest, and that [the petitioner] subsequently assaulted the informant, where the prejudicial effect of the evidence substantially outweighed any probative value.
II.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act 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. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, 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 for habeas cases:
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, 433 (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).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "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 409, 410-11. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first claims that his Fourth Amendment rights were violated because he was arrested by police without a warrant. The petitioner further alleges that there were no exigent circumstances that would justify his warrantless arrest and the subsequent warrantless search of his motel room. The petitioner alleges that the state trial court therefore erred in refusing to suppress evidence that was taken from his motel room.
Prior to trial, the petitioner's defense attorney filed a motion to suppress evidence. An evidentiary hearing was conducted before the trial court on October 31, 1997. The petitioner was represented by counsel at this hearing and was permitted to cross-examine Detective May, the only witness called by the prosecution. The petitioner offered no evidence. At the conclusion of the hearing, defense counsel made a closing argument. The trial court took the matter under advisement. On December 18, 1997, the state trial court issued a twelve-page opinion denying the motion to suppress. In denying the motion, the trial court found that exigent circumstances existed to justify the warrantless search and seizure. The trial court first noted that the police had probable cause to arrest the petitioner because their confidential informant had just purchased cocaine from him. The trial court then observed that because the petitioner was selling drugs out of a motel room and the police knew that the petitioner did not reside at the motel, there was a "very real possibility" that the petitioner would either leave the motel room or dispose of the evidence before the officers could obtain an arrest warrant. People v. Smith, No. 97-1174 Opinion and Order Denying Defendant's Motion to Suppress, (Bay County Circuit Court, December 18, 1997).
The petitioner properly raised this Fourth Amendment claim on direct appeal. The Michigan Court of Appeals rejected it on the ground that exigent circumstances existed that justified the police officers' warrantless entry into the motel room. People v. Smith, No. 210613, 2000 WL 33415015, at *1-3.
Federal courts will not address a Fourth Amendment claim in a habeas proceeding if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). A federal court performs two distinct inquiries when determining whether a petitioner may raise a claim of illegal search and seizure in a habeas action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).
The petitioner does not deny that he was afforded an evidentiary hearing in the state trial court on his Fourth Amendment claim. Rather, he contends that he was denied a full and fair opportunity to litigate his Fourth Amendment claim because the state trial court failed to apply the proper constitutional case law, the correct legal standards, or an accurate factual determination when it ruled that exigent circumstances existed to justify the officers' warrantless entry into the petitioner's motel room.
Although a federal habeas court may inquire into the adequacy and fairness of the available state court procedures that were used to adjudicate a habeas petitioner's Fourth Amendment claim, "its inquiry ordinarily ends upon a determination that those procedures pass muster." Sanna v. Dipaolo, 265 F.3d 1, 8-9 (1st Cir. 2001). As long as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by means of procedures that are "suitably crafted" to test for possible Fourth Amendment violations, a federal habeas court does not have the power, under Stone, to "second-guess the accuracy of the state courts' resolution of those claims." Ibid. Thus, a "mistaken outcome" of a suppression hearing that has been conducted in a state trial court, standing alone, does not deny a habeas petitioner the opportunity to fully and fairly litigate his Fourth Amendment claims. Id at 9. See also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (holding that the relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided). Thus, even "potentially meritorious Fourth Amendment claims" are barred by Stone on habeas review if the petitioner had a full and fair opportunity to litigate his claims in the state courts. Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994), cert. denied, 512 U.S. 1230 (1994).
In the present case, the petitioner has failed to show that he was denied an opportunity to fully and fairly litigate his Fourth Amendment claim in the state courts. Contrary to the petitioner's assertion, this is not a case where the trial or appellate courts "willfully refused" to apply the appropriate constitutional standards. See Gamble v. State of Okl, 583 F.2d 1161, 1164-1165 (10th Cir. 1978). Both the trial court and the state court of appeals applied the proper standard for determining whether exigent circumstances existed in this case. The Supreme Court has stated that the imminent destruction of evidence, and the need to prevent a suspect's escape, are exigent circumstances that would justify a warrantless arrest or search. See Schmerber v. California, 384 U.S. 757, 770-771 (1966); Minnesota v. Olson, 495 U.S. 91, 100 (1990). Under the circumstances of this case, the petitioner's Fourth Amendment claim was fully and fairly litigated in the state court, and therefore Stone v. Powell bars further review in this collateral proceeding. See Gilbert v. Parke, 763 F.2d 821, 824 (6th Cir. 1985).
B.
In his second claim, the petitioner contends that the prosecutor violated his due process rights by allowing Gerardo Facundo to testify falsely that he did not expect any lenient treatment from the prosecutor in exchange for his testimony against the petitioner. Following his conviction, the petitioner raised this claim in a motion for a new trial. The state court held an evidentiary hearing on the petitioner's claim on June 24, 1999. At the start of the hearing, both counsel stipulated that the petitioner's defense attorney was unaware of any plea agreement between Facundo and the prosecution.
Testimony at the hearing revealed that although Facundo had originally been charged with possession with intent to deliver less than fifty grams of cocaine, on April 24, 1998, after the petitioner's trial, Facundo and his attorney entered into a plea agreement with the prosecutor whereby Facundo would be permitted to plead guilty to a reduced charge of attempted possession with intent to deliver cocaine. Facundo pleaded guilty to the reduced charge on June 5, 1998. He was sentenced on August 3, 1998 to serve six months in jail and received eighteen months probation.
At the evidentiary hearing, Facundo's defense attorney, James Gust, testified that he was not sure when the plea agreement between the prosecutor's office and Facundo had been negotiated, but was certain that it was negotiated only after Facundo testified at the petitioner's trial. Gust stated that the prosecutor in this case, Kurt Asbury, told Gust that he wanted Facundo to testify first and then Asbury would consider a plea bargain for Facundo. Gust characterized Asbury as being adamant that he would not discuss any plea agreement with Facundo until after Facundo had testified. Gust testified that neither he nor Facundo knew whether he would receive any bargain in return for Facundo's testimony. However, Gust acknowledged that the plea bargain that was ultimately offered by the prosecutor was better than he had expected. Gust further admitted that he had informed Facundo that he could possibly get a plea bargain if he testified, but also advised Facundo that his testimony was "a shot in the dark." Gust further informed Facundo that no promises had been made to him, but that Facundo should go ahead and testify anyway. Although Gust wanted to work out a plea agreement for Facundo in exchange for his cooperation, Gust emphasized that this was just a hope on his part.
Kurt Asbury, the assistant prosecutor, testified that he signed the plea agreement with Facundo and his attorney on April 24, 1998. Asbury acknowledged talking with Gust about Facundo testifying against the petitioner. However, Asbury testified that he did not offer Facundo any plea agreement prior to the petitioner's trial. Asbury indicated that he does not usually offer a plea agreement "up front," because he did it on one occasion and it turned out to be a big problem for his office. Asbury emphasized that no promises had been made to Facundo in exchange for his testimony. Asbury acknowledged, however, that he intended to take Facundo's cooperation into consideration.
In rejecting the petitioner's claim, both the trial court and the Michigan Court of Appeals noted that there was no evidence that Facundo had been offered a plea agreement or any promise of leniency prior to testifying in the petitioner's case. Both courts indicated that a witness' mere expectation or hope of future leniency does not have to be disclosed by a prosecutor. The trial court further noted that there was additional evidence presented at trial to impeach Facundo's testimony. People v. Smith, No. 210613, 2000 WL 33415015, at *1-3; People v. Smith, 97-1174, Opinion and Order Denying Defendant's Motion for a New Trial,(Bay County Circuit Court, July 6, 1999).
The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the prosecutor allows false evidence or testimony to go unconnected. Napue v. Illinois, 360 U.S. 264, 269 (1959) (internal citations omitted). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). However, a habeas petitioner must show that a witness' statement was "indisputably false", rather than misleading, in order to establish a claim of prosecutorial misconduct or a denial of due process based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000).
The petitioner has not made the required showing for several reasons. First, there was no evidence presented at the evidentiary hearing that any explicit or implicit promises of leniency had been made to Facundo before he testified against the petitioner. Because there is no evidence that the prosecutor either expressly or implicitly agreed to provide lenient treatment to Facundo in exchange for his testimony, the prosecutor had no duty to disclose any such agreement or correct Facundo's allegedly false testimony that he had no expectation of leniency. See Zuern v. Tote, 101 F. Supp.2d 948, 971 (S.D. Ohio 2000). Neither Giglio or Napue stand for the proposition that a witness' mere "expectation of leniency" must be disclosed absent evidence of an express or implied promise of leniency. See Mastrian v. McMcmus, 554 F.2d 813, 823 (8th Cir. 1977). Likewise, a defense attorney's belief that his client may be in a better position to negotiate a plea bargain in exchange for his testimony against a co-defendant is not an agreement within the purview of Giglio. Alderman v. Zant, 22 F.3d 1541, 1554-55 (11th Cir. 1994). Because the evidence does not establish that any promises of leniency were made to Facundo prior to him testifying in this case, the petitioner is not entitled to habeas relief on this claim. Mastrian, 554 F.2d at 823-24.
Moreover, assuming that Facundo did, in fact, testify falsely in this case, the petitioner has not shown that Facundo's statement that he had no expectation of leniency was material to the petitioner's conviction. At the petitioner's trial, Facundo was impeached with evidence that he had used cocaine before, was a cocaine addict, and had sold cocaine in the past. Facundo acknowledged that he had worked as a confidential informant for the police in the past and had received benefits as a result of his cooperation. In light of this evidence, Facundo's expectation of leniency, real or imagined, was not material. The jury had other evidence to suggest that Facundo was attempting to help himself in this case by testifying against the petitioner. See Broun v. Powell, 77 F. Supp.2d 973, 1004 (E.D. Wis. 1999); rev'd on other grds, 227 F.3d 908 (7th Cir. 2000); cert. den. 531 U.S. 1182(2001).
Finally, Facundo's testimony was not the only evidence of guilt in this case. The police officers who went to arrest the petitioner at his motel testified that the petitioner attempted to run away from them. The officers testified that the petitioner flushed a white powdery substance down the toilet. Officers confiscated the pre-marked money, Inositol powder, and plastic baggies from the petitioner's room. Officers searched Facundo before sending him into the motel room, and they recovered cocaine from him when he came out. In light of the additional evidence of the petitioner's guilt in this case, the petitioner is unable to show that he was prejudiced by Facundo's alleged perjured testimony. Byrd v. DeIo, 917 F.2d 1037, 1044 (8th Cir. 1990). The petitioner is not entitled to habeas relief on this claim.
C.
In his third claim, the petitioner contends that the state trial court violated his right to due process by twice admitting "prior bad acts" evidence that was more prejudicial than probative. First, the petitioner challenges the receipt of evidence that following his arrest, the petitioner offered to make undercover purchases of cocaine for the police. He also contests the evidence that he assaulted Facundo subsequent to being arrested in this case.
In rejecting these claims, the Michigan Court of Appeals ruled that the evidence that the petitioner offered to make undercover purchases of cocaine for the police was offered to establish that the petitioner had access to cocaine and was therefore relevant, because the petitioner had denied selling cocaine to Facundo. The Court of Appeals further noted that the prejudicial impact of this evidence was minimized by the fact that the petitioner testified that he was forced to cooperate with the police or he would be jailed. The Michigan Court of Appeals concluded that the petitioner's assault on Facundo was relevant to show consciousness of guilt. People v. Smith, No. 210613, 2000 WL 33415015, at *3.
"Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sawders, 34 F.3d 352, 357 (6th Cir. 1994). The Sixth Circuit Court of Appeals has explained that
"[e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Cooper v. Sawders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64 (1967).Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001) (second alteration in original). Thus, even if some rule of evidence was violated, relief on collateral review will be provided "only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.'" Ford v. Curtis, 211 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). As the Seventh Circuit has indicated: "[S]omething more than a garden-variety violation of the standard of 404(b) must be shown to cross the constitutional threshold." Watkins v. Meloy, 95 F.3d 4, 7 (7th Cir. 1996).
The erroneous admission of the petitioner's post-arrest cooperation with the police was no more than a "garden-variety violation" of Mich. R. Evid. 404(b). See People v. Rustin, 406 Mich. 527, 531, 280 N.W.2d 448, 450 (1979); United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996). The evidence that the petitioner offered to buy cocaine for the police after his arrest, although irrelevant, did not undermine confidence in the outcome of the trial in light of the other evidence in the case of the petitioner's guilt. Thus, the petitioner's rights under the Due Process Clause were not abridged.
Evidence that a defendant threatened a witness is admissible, because it is probative of a defendant's consciousness of guilt. See United States v. Fortson, 194 F.3d 730, 737 (6th Cir. 1999). Therefore, the evidence that the petitioner assaulted Facundo subsequent to his arrest was not improperly admitted. Accordingly, the petitioner is not entitled to habeas relief on his final claim.
III.
The petitioner's conviction was not tainted by constitutional error; he is not in custody in violation of the Constitution, laws, or treaties of the United States.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion to proceed on the merits of his habeas petition [dkt # 11] is DENIED as moot.