Opinion
No. 01-CV-72061-DT
June 27, 2002
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Canton Banks, a Michigan prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. Petitioner was convicted of first-degree felony murder, conspiracy to commit first-degree felony murder, conspiracy to commit two armed robberies, armed robbery, and multiple counts of felony firearm following a jury trial in the Oakland County Circuit Court in 1997. He was sentenced to life imprisonment without parole on the murder conviction, concurrent terms of life imprisonment on each of the conspiracy and armed robbery convictions, and consecutive terms of two years imprisonment on each of the felony firearm convictions.
In his pleadings, Petitioner raises claims challenging the effectiveness of trial counsel, the denial of a continuance request, the sufficiency of evidence and double jeopardy as to the felony firearm charges, and the multitude of charges brought against him. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. Facts
Petitioner's convictions arise from an armed robbery at a Mobil gas station and a botched armed robbery resulting in a fatal shooting at a Subway restaurant in Troy, Michigan in October, 1994. Defendant's accomplice, Ming Ho, was the actual shooter in both incidents. Petitioner and Ho enlisted Darian Hall and Eric Whisnant to assist them in the Subway incident.
Prior to trial, defense counsel filed a motion for severance seeking separate trials for the two incidents. Counsel withdrew the motion following a hearing at which the prosecution stated that it would seek to introduce evidence of each incident at the trial of the other incident as similar acts evidence under Michigan Rule of Evidence 404(b).
Defense counsel also filed a motion to suppress Petitioner's pre-trial statements to police, which was denied following a hearing.
The Mobil gas station robbery occurred on October 4, 1994. At trial, Stacey Zielinski testified that she was working at the Mobil station that evening. Petitioner came into the store prior to robbery to make a purchase. She recognized him because he had previously worked at the store for one week. Zielinski further testified that she and her friend, Lavelle Matthews, were the only people at the station when it was robbed at approximately 11:30 p.m. She stated that Ming Ho entered the store, pointed a gun at her, and asked her to give him the money from the cash register. Stacey went to the register and gave him less than $100.00. Ho asked her to open the safe. When she told him that she could not open the safe, Ho waved the gun and fired at Matthews, who fell to the floor, although he was not hit by any of the shots. Ho then shot her three times — in the arm, shoulder, and chest — before fleeing the station. Matthews helped her get up, they called 911, and the police arrived shortly thereafter. Lavelle Matthews testified at trial and corroborated Zielinski's testimony concerning the robbery. Matthews also provided the police with a description and composite drawing of the robber. Both Zielinski and Matthews identified Ho as the perpetrator of the robbery, but neither saw Petitioner at the Mobil station at the time of the robbery.
Ming Ho, who was 19 years old at the time of trial, testified that he had been convicted of robbery and murder in connection with the Mobil and Subway incidents and that he was serving a mandatory term of life imprisonment. Ho stated that he and Petitioner were close friends at the time of the incidents. Ho testified that he wanted a gun for protection and asked Petitioner if he could obtain a gun. Petitioner introduced him to Otis Doss and, after three meetings, Doss sold Ho a .380 caliber handgun and ammunition. After the sale was completed at Doss' home, Petitioner took apart the gun and put it back together at Ho's apartment. Ho kept the gun in his car.
On October 4, 1994, Ho picked Petitioner up at an apartment he shared with his girlfriend, Christine Chevalier, and they went to the Mobil station around 9:00 p.m. Petitioner entered the station and came out with a soft drink. Petitioner then asked Ho if he wanted to rob the Mobil. Ho responded that he did not care, but asked Petitioner for details. Petitioner told Ho that he knew the clerk and how the safe worked. Ho told Petitioner that he was not going to leave any witnesses. Petitioner responded that he wished it wasn't Stacey because he knew her, but acknowledged that Ho should do what he had to do. Petitioner informed Ho that the safe was timed and would only give out so much money. They decided to do the robbery at midnight so there would be fewer customers.
Ho and Petitioner returned to the Mobil station sometime after 11:00 p.m. that evening. Ho parked his car behind the station and told Petitioner to be the getaway driver. Ho then knocked on the station's door, which was locked, and signaled to Matthews that he wanted to buy a drink. After Matthews opened the door, Ho put the gun to Zielinski's head and demanded money. Stacey gave him money from the cash register. When Stacey said that she did not have the key to the safe, Ho fired two shots at Matthews and thought that he had killed him. He then fired three shots at Zielinski, who was screaming as he fled the store, although he believed that she would die. Ho got into the passenger seat and drove away with Petitioner. Ho kept $50.00 and gave Petitioner $45.00 of the robbery proceeds. They hid the gun in Petitioner's car.
Police testimony confirmed that a .380 caliber weapon was involved in the Mobil robbery. Otis Doss corroborated Ming Ho's testimony regarding acquisition of the gun. The Mobil gas station owner verified that Petitioner had worked at the station for one week in May, 1994.
The Subway shooting occurred on October 18, 1994, two weeks after the Mobil robbery. Ming Ho testified that he and Hall took the gun target shooting between the Mobil and Subway incidents because he wanted to check on the jam. Ho, Hall, and Whisnant also fired the gun on another occasion. Petitioner bought more ammunition for the gun after the Mobil robbery. Ho testified that Petitioner raised the subject of robbing the Subway restaurant where he (Petitioner) had previously worked. Ho and Petitioner discussed the robbery at Christine Chevalier's home on October 17, 1994, and Petitioner drew a diagram of the Subway's layout. Ho told Petitioner he would not leave any witnesses. They also decided that the robbery would be easier if they had help and Ho suggested enlisting their friends, Darian Hall and Eric Whisnant, to assist them. Hall and Whisnant agreed to participate. They decided to use Whisnant's car, which had a large trunk to accommodate a safe. The plan was for Ho to enter the Subway and control the employees while Petitioner and Hall took the safe and Whisnant drove the getaway car. They agreed that any witnesses would be killed and that the proceeds would be split four ways. They did a dry run of the robbery that night, noting the access and lighting to the store, then left to get the gun. When they returned to the Subway, however, it was closed. They decided to commit the robbery the next day.
On October 18, 1994, they drove to the Subway and Whisnant parked his car behind the restaurant. Ho, Petitioner, and Hall went into the restaurant. Ho ordered a sandwich while Hall went to the bathroom. Ho followed the employee, Angela Garcia, into the back of the restaurant, pulled out his gun, and told her to give him the money. Garcia refused and took a step toward Ho trying to grab his gun. Ho shot Garcia twice at close range and fled the building. Petitioner and Hall also ran out of the back door when they heard the shots. They did not take any money or the safe. Petitioner asked Ho why he shot her before they got the money and Ho replied that she tried to grab his gun.
Ho further testified that he and Petitioner returned to the Subway to try to get the safe, but could not do so because two men, Martin Brown and Corey Reeves, were inside the restaurant. Eventually, Brown flagged down Ho's car and told him and Petitioner that he had to call 911 because someone had been shot. Banks got out of the car and went to a pay telephone, but did not dial. Brown took the telephone to make the call, and Ho and Petitioner left. Hall and Whisnant also returned to the Subway because Hall was concerned about fingerprints on the door. They left again, but returned later and told police that they had gone to the Subway to eat after Garcia had been shot.
Ho testified that he received a call from a friend a few days later telling him that he had better get rid of the evidence. Ho took the gun and some of his shoes and clothing and drove with some friends to the Detroit River. After Ho threw the items into the river, he was arrested by police. Ho stated that he decided to testify against Petitioner to show Garcia's family that he was sorry for what he had done. He stated that he did not hold a grudge against Petitioner and realized that he would not receive any benefit in his criminal proceedings by testifying against him at trial.
Darian Hall and Eric Whisnant also testified at trial pursuant to plea agreements in which they agreed to plead guilty to second-degree murder and conspiracy to commit armed robbery in exchange for 10-year maximum sentences and their truthful trial testimony. Their testimony essentially corroborated Ming Ho's testimony regarding the Subway incident.
Expert testimony established that Angela Garcia died from .380 caliber gunshot wounds to the face and neck fired at close range, and that Ho's .380 caliber handgun was used in both incidents. Police testimony established that Petitioner, Hall, and Whisnant initially denied any involvement in the crimes, but subsequently told police that they were present when Ho committed the Subway shooting.
At the close of trial, the jury found Petitioner guilty of first-degree felony murder, first degree premeditated murder, conspiracy to commit both of those offenses, armed robbery, two counts of conspiracy to commit armed robbery, and seven counts of felony firearm. The trial court dismissed the first-degree felony murder conviction and related felony firearm conviction and sentenced Petitioner to life imprisonment without parole on the felony murder conviction, concurrent terms of life imprisonment on each of the conspiracy and armed robbery convictions, and consecutive terms of two years imprisonment on each of the felony firearm convictions.
II. Procedural History
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals asserting several claims of error, most of which are included in the present petition for a writ of habeas corpus. Petitioner also filed a motion to remand for a hearing on the effectiveness of trial counsel pursuant to People v. Ginther, 390 Mich. 436 (1973). The Michigan Court of Appeals granted the motion for remand and remanded the case to the trial court for a hearing on the effectiveness of trial counsel. See People v. Earl, No. 203255 (Mich.Ct.App. Sept. 11, 1998).
At the hearing on remand, counsel enunciated his reasons for withdrawing his severance motion. Specifically, counsel testified that he believed that evidence of each incident would be admissible at the trial of the other as similar acts evidence under Michigan Rule of Evidence 404 (b), he thought he could use Petitioner's presence at the Mobil robbery to bolster his defense in the Subway case, and he did not think that Petitioner could afford to pay him for two trials. Following the hearing, the trial court concluded that counsel's conduct was a matter of trial strategy and that counsel was not ineffective.
After the remand, the Michigan Court of Appeals reversed the conspiracy to commit felony murder conviction and the related felony firearm conviction, but affirmed Petitioner's remaining convictions and sentences in unpublished per curiam decision. People v. Banks, No. 202802 (Mich.Ct.App. July 9, 1999). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Banks, No. 115336 (Mich. Feb. 29, 2000). Petitioner's motion for reconsideration was also denied on May 31, 2000.
Petitioner filed the instant petition for a writ of habeas corpus on May 31, 2001, raising the following claims as grounds for relief:
I. He was denied his Sixth Amendment right to the effective assistance of counsel when trial counsel failed to seek a severance.
II. He was denied his due process right to a fair trial when the trial court denied defense counsel's request for discovery and a continuance prior to trial.
III. The trial court erred in allowing the jury to consider seven charges of felony firearm because the prosecution presented insufficient evidence and the convictions violated double jeopardy.
IV. The confusing array of duplicative counts against him, many of which were unsupported by law or the evidence, deprived him of his due process right to a fair trial.
Respondent filed an answer to the petition on December 3, 2001, asserting that Petitioner's claims should be denied for lack of merit. Petitioner filed a reply to that answer on January 4, 2002.
III. Standard of Review
The provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d) (1996).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 411. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Discussion
A. Ineffective Assistance of Counsel Claim
Petitioner first claims that trial counsel was ineffective for failing to seek severance of the two crimes for trial. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the United States Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
The Michigan Court of Appeals addressed this claim applying the Strickland standard and found that trial counsel was not ineffective, stating in relevant part:
Here, defendant's trial counsel testified at the Ginther hearing that he withdrew his motion for severance as a matter of trial strategy. He explained that he hoped to convince the jury that defendant played no part in the robberies, and that he was merely present when Ho spontaneously committed the crimes. He also believed that if the counts were severed, the trial court would permit the prosecution to introduce evidence of the Mobil robbery at the Subway trial, and vice versa, pursuant to MRE 404(b). We agree that this was sound trial strategy, albeit ultimately unsuccessful. Accordingly, defendant has failed to establish ineffective assistance of counsel. Banks, No. 202802 at *2.
Having reviewed the record, this Court concludes that the Michigan Court of Appeals' decision is neither contrary to established United States Supreme Court precedent nor an unreasonable application thereof. Counsel in this case made a reasonable choice to withdraw the motion for severance when faced with the strong likelihood that evidence of each crime would be admitted at the trial of the other as similar acts evidence under Michigan Rule of Evidence 404(b). While counsel's strategy and defense of mere presence was unsuccessful, the Court cannot conclude that counsel's performance was deficient under the circumstances of this case. Further, given the evidence against Petitioner, particularly Ming Ho's testimony, which would have been admissible at both trials, Petitioner cannot establish that he was prejudiced by counsel's conduct. Ho's testimony clearly established that Petitioner participated in the planning and execution of both the Mobil robbery and the Subway murder. Petitioner has thus failed to establish that trial counsel was ineffective and is not entitled to habeas relief on this claim.
B. Denial of Continuance Claim
Petitioner next claims that he is entitled to habeas relief because the trial court erred in denying defense counsel's request for a continuance and discovery when witnesses Darian Hall and Eric Whisnant decided to testify for the prosecution. This claim is without merit.
A trial court has broad discretion in determining whether to grant or deny a defendant's motion for a continuance in a criminal case. See Unger v. Sarafite, 373 U.S. 575, 589 (1964). "When a denial of a continuance forms the basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process." Bennett v. Scroggy, 793 F.2d 772, 774-75 (6th Cir. 1986); see also Morris v. Slatty, 461 U.S. 1 (1983) (trial court did not abuse its discretion or deny defendant's right to counsel when it denied his motion for a continuance to allow better preparation by his attorney, who had been appointed six days prior to trial when original counsel became ill).
In this case, the Michigan Court of Appeals concluded that the trial court did not abuse its discretion in denying Petitioner's motion for a continuance, finding that Petitioner was aware of the possibility that those witnesses would testify months before trial, that he was given their videotaped statements a week before trial, that their testimony corroborated Ming Ho's testimony and did not alter Petitioner's defense, and that Petitioner failed to show any prejudice resulting from the trial court's denial of the request. Banks, No. 202802 at *2-3.
Having reviewed the record, this Court finds that the Michigan Court of Appeals' decision in this regard is consistent with federal law and constitutes a reasonable application thereof. The trial court properly concluded that a continuance was not warranted. Whisnant's and Hall's names were on the prosecution's witness list five months before trial and defense counsel had ample time to investigate their credibility. Defense counsel obtained the witnesses' videotaped statements a week before trial and had an opportunity to question them prior to their testimony. For the most part, the information they provided corroborated Ming Ho's version of the events and did not alter the defense strategy that Petitioner was merely present when the crimes occurred.
Further, Petitioner has not established that he was prejudiced by the trial court's decision. He has not shown what information would have discovered or how his defense would have been improved had the continuance been granted. The record reveals that counsel adequately questioned both witnesses and performed in a competent manner during trial. Petitioner has provided no support for his assertion that the denial of the continuance or discovery motions deprived him of a fair trial. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. See, e.g., Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance of appellate counsel do not warrant habeas relief); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3rd Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient basis to hold an evidentiary hearing in habeas proceedings). Petitioner is therefore not entitled to habeas relief on this claim.
C. Felony Firearm Insufficient Evidence and Double Jeopardy Claims
Petitioner next contends that he is entitled to habeas relief because there was insufficient evidence to support the three felony firearm convictions associated with his conspiracy convictions and because those multiple convictions violate double jeopardy.
1. Insufficient Evidence Claim
In Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on 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." Id. at 319; see also Warren, 161 F.3d at 360.
Under Michigan law, the elements of felony-firearm are that the defendant possessed a firearm during the commission of?, or the attempt to commit, a felony. People v. Avant, 235 Mich. App. 499, 505, 597 N.W.2d 864 (1999). A person who does not actually possess the firearm may be convicted of felony firearm as an aider and abettor if the person aids or abets the acquisition or retention of the firearm. People v. Johnson, 411 Mich. 50, 54, 303 N.W.2d 442 (1981).
The Michigan Court of Appeals applied the Jackson standard and found that there was sufficient evidence to support Petitioner's felony firearm convictions, stating in relevant part:
Here, the evidence indicated that several weeks prior to the Mobil station robbery defendant helped Ho acquire the .380 caliber semi-automatic handgun (used in both the Mobil robbery and the Subway murder) from defendant's friend and former co-worker, Otis Doss. Defendant and Ho want to see Doss three times in an attempt to acquire the handgun. On the third occasion, Doss sold Ho the gun for $250. Immediately after buying the gun, defendant took it apart and reassembled it, apparently to see how it worked. On October 4, 1994, defendant and Ho agreed that Ho would use the gun to rob the Mobil station and kill any witnesses, and that defendant would drive the getaway car. After the robbery, Ho and defendant divided the stolen money, and defendant stored the gun in the trunk of his car. Prior to the Subway murder, defendant bought additional bullets for the gun. Defendant helped plan the Subway robbery, advising [Ho] to murder the employee in the manager's office. Defendant accompanied Ho into the Subway shop with the intent of helping carry away the safes. After Ho murdered the clerk, defendant asked him why he killed her before they got the money.
This evidence, viewed in a light most favorable to the prosecution, indicated that defendant helped to acquire and retain the gun in question. He encouraged Ho to use the gun during both the Mobil and Subway incidents and he provided assistance to Ho during those incidents as well as directly participating in both incidents. Under these circumstances, the evidence was sufficient to convict defendant of aiding and abetting felony-firearm in conjunction with the murder and robbery conspiracies.Banks, No. 202802 at *4.
Having reviewed the record, this Court agrees and finds that the Michigan Court of Appeals' decision is consistent with federal law and constitutes a reasonable application of that law. The record clearly reveals that Petitioner helped Ming Ho acquire and retain the gun and ammunition used in both incidents and that he conspired with Ho to plan the robberies and shootings. Petitioner is not entitled to relief on this claim.
2. Double Jeopardy Claim
The Fifth Amendment to the United States Constitution commands that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Double Jeopardy Clause provides three basic protections: "[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Shiro v. Farley, 510 U.S. 222, 229 (1994) (citing United States v. Wilson, 420 U.S. 332, 339 (1975)).
However, in the context of multiple punishments, the Double Jeopardy Clause does not prohibit a state from defining one act of conduct to constitute two separate criminal offenses. As the United States Supreme Court has explained, "[b]ecause the substantive power to prescribe crimes and determine punishments is vested with the legislature . . ., the question under the Double Jeopardy Clause whether punishments are `multiple' is essentially one of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus, "even if the two statutes proscribe the same conduct, the Double Jeopardy Clause does not prevent the imposition of cumulative punishments if the state legislature clearly intends to impose them." Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986). When "a legislature specifically authorizes cumulative punishments under two statutes, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). In determining whether the Michigan legislature intended to authorize separate, cumulative punishments in the circumstances present here, this Court "must accept the state court's interpretation of the legislative intent for the imposition of multiple punishments." Brimmage, 793 F.2d at 1015; see also Hunter, 459 U.S. at 368.
The felony firearm statute at issue in this case provides:
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by a licensee] or 230 [alternation of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.
MICH. COMP. LAWS § 750.227b(1). The Michigan Supreme Court has concluded that "the Legislature's intent in drafting the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute." People v. Mitchell, 456 Mich. 693, 698, 575 N.W.2d 283 (1998).
Relying on Mitchell, the Michigan Court of Appeals in this case concluded that Petitioner's felony firearm convictions arising from his conspiracy convictions do not violate double jeopardy:
We also find no merit in defendant's claim that the constitutional guarantee against double jeopardy precludes the felony-firearm convictions connected to the conspiracy convictions. Defendant himself admits that the Supreme Court recently made clear in People v. Mitchell, 456 Mich. 693; 575 N.W.2d 283 (1998), that double jeopardy is not violated and felony-firearm convictions should be upheld whenever a person possessing a firearm committed a felony other than those explicitly enumerated in the statute. Conspiracy to commit an offense is not one of those enumerated felonies. See MCL § 750.227b; MSA 28.424(2). Therefore, we decline to reverse the three remaining felony firearm convictions associated with the conspiracy convictions.Banks, No. 202802 at *4-5 (footnote omitted). The Michigan Court of Appeals' decision is consistent with federal law and constitutes a reasonable application thereof. Because the conspiracy charges at issue here are not among the four explicitly enumerated exceptions to the felony-firearm statute, it is presumed that the Michigan legislature intended to impose multiple punishments in this context. The record thus reflects that Petitioner was properly convicted and sentenced on the felony firearm counts arising from his conspiracy convictions as a matter of Michigan law, such that no double jeopardy violation has occurred. Petitioner is not entitled to relief on this claim.
D. Due Process Claim Based Upon Array of Charges
Lastly, Petitioner claims that he is entitled to habeas relief because the array of charges brought against him by the prosecution confused the jury and resulted in unfair prejudice. The Michigan Court of Appeals found this claim to be without merit because the charges against Petitioner were repeatedly and properly explained to the jury, the jury was provided with written verdict form explaining the charges, and Petitioner's assertions of jury confusion were "pure speculation." Banks, No. 202802 at *5.
This Court agrees and finds that the Michigan Court of Appeals' determination is consistent with federal law and is a reasonable application of that law. A prosecutor has significant discretion in determining what charge to file against an accused provided that probable cause exists to believe that an offense was committed by the accused under the charging statute. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Davis, 15 F.3d 526, 529 (6th Cir. 1994). The prosecution in this case had probable cause to believe that Petitioner was guilty of the charged offenses. The array of charges was based upon Petitioner's own criminal conduct. Petitioner has failed to establish that the charges against him were improperly brought or that the jury was unjustly confused by those charges. He is not entitled to relief on this claim.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented. Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.