Opinion
Case No. 03-CV-10169-BC.
July 2, 2004
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
The petitioner, Melvin Bell, a state inmate currently incarcerated at Huron Valley Center in Ypsilanti, Michigan, has filed a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of first-degree criminal sexual conduct contrary to Mich. Comp. Laws § 750.520b(1)(a). He alleges that he is in custody in violation of his constitutional rights because his trial attorney was ineffective, the evidence at trial was insufficient to establish his guilt, and the evidence at the preliminary examination was insufficient to bind him over to circuit court. The Court finds that the petitioner's claims lack merit and that he is not in custody in violation of the Constitution or federal law. The Court, therefore, will deny the petition.
I.
The State alleged that the petitioner raped a nine-year-old girl in the City of Detroit on August 22, 1998. The evidence established that the young victim was at home that day with her younger brother. When she left the house to take out the trash between 1:00 and 1:30 in the afternoon, she was accosted, dragged across her back yard, and sexually penetrated. The victim identified the petitioner as the perpetrator.
A circuit court jury in Wayne County, Michigan found the petitioner guilty of first-degree criminal sexual conduct on July 13, 1999. See Mich. Comp. Laws § 750.520b(1)(a) (sexual penetration with a person under the age of thirteen). The trial court initially sentenced the petitioner to life imprisonment. The petitioner filed a claim of appeal from his conviction and sentence. It appears from the record that his appellate attorney attacked the sufficiency of the evidence, the prosecutor's conduct, and the basis for the sentence. Appellate counsel also moved to remand the case so that the petitioner could file a motion for resentencing on the ground of ineffective assistance of counsel at sentencing. The Michigan Court of Appeals granted the petitioner's motion to remand and retained jurisdiction. On remand, the petitioner argued that the trial court had relied on erroneously-scored sentencing guidelines when sentencing him. The trial court, however, declined to resentence the petitioner, stating that it had not relied on the sentencing guidelines because they did not adequately reflect the seriousness of the offense.
The petitioner subsequently filed a pro se appellate brief in which he alleged, among other things, that his trial attorney was ineffective and that the complainant's version of the offense was contradicted by other facts. On September 21, 2001, the Michigan Court of Appeals affirmed the petitioner's conviction after finding no merit in the sufficiency-of-the-evidence and prosecutorial-misconduct claims raised by appellate counsel. The court of appeals remanded the case, however, so that the trial court could consider the correct sentencing guidelines and state in detail its reasons for the sentence imposed. See People v. Bell, No. 222174, at 3 (Mich.Ct.App. Sept. 21, 2001).
On remand, the trial court stated its reasons for departing from the sentencing guidelines but initially refused to resentence the petitioner. Eventually, on December 6, 2001, the trial court resentenced the petitioner to imprisonment for ten to twenty years.
Meanwhile, the petitioner appealed the September 21, 2001 court of appeals decision to the state supreme court. On May 29, 2002, the supreme court remanded his case to the court of appeals for consideration of the petitioner's pro se claims and denied leave to appeal in all other respects because it was not persuaded that the remaining questions should be reviewed. See People v. Bell, 466 Mich. 865; 645 N.W.2d 659 (2002).
The petitioner then moved to amend his pro se appellate brief to include a claim that there was insufficient evidence produced at the preliminary examination. On August 5, 2002, the court of appeals denied leave to file the supplemental brief. The court of appeals subsequently adjudicated the petitioner's pro se claim regarding trial counsel and then reaffirmed the petitioner's conviction. See People v. Bell, No. 222174 (Mich.Ct.App. Aug. 13, 2002). The petitioner appealed the court's decision, but on January 31, 2003 the Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Bell, 467 Mich. 954; 656 N.W.2d 526 (2003).
The petitioner filed his habeas corpus petition in this Court on July 31, 2003. The habeas petition alleges the following grounds for relief:
I. Ineffective assistance of counsel from unprepared trial counsel [because t]rial counsel failed to (1) investigate and call numerous favorable witnesses, (2) failed to object to prosecutorial misconduct concerning the prosecutor's recitation of incorrect law to the jury, (3) failed to investigate or request questioning of jurors who were [a]sleep during trial, [and] (4) failed to request that [the] jury view the crime scene.
II. Where the complainant's description[s] of her assailant were inconsistent and where her version of the offense was unbelievable, the evidence failed to establish Mr. Bell's guilt beyond a reasonable doubt. Consequently, his conviction violates the state and federal constitutions and must be vacated.
III. There was insufficient evidence produced to bind the defendant over as the complaining witness never testified to penetration at the preliminary examination. The district court judge abdicated her duty thereby abusing her discretion by failing to make a determination of probable cause on penetration.
IV. Where the complainant's description[s] of the assailant were inconsistent and where her version of the offense is unbelievable, the evidence failed to establish Mr. Bell's guilt beyond a reasonable doubt. Consequently, his conviction violates the state and federal constitutions and must be vacated.
II.
The respondent contends that the petitioner did not exhaust state remedies for his third claim. The Supreme Court recently explained that,
[b]efore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) ( per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). To provide the State with the necessary "opportunity," the prisoner must "fairly present" his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366; O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).Baldwin v. Reese, ___ U.S. ___, ___, 124 S. Ct. 1347, 1349 (2004).
In this case, the petitioner raised his first, second, and fourth claims in the Michigan Court of Appeals and in the Michigan Supreme Court. The petitioner presented his third claim to the state courts for the first time in a supplement to his pro se appellate brief. However, the court of appeals rejected the brief as untimely and returned it to the petitioner on August 21, 2002 without considering its merits. The Court finds that although the court of appeals did not reach a decision on the merits of this claim, the petitioner still "fairly presented" this claim for determination. See Baker v. Horn, 210 F. Supp. 2d 592, 628 (E.D. Pa. 2002) ("As long as the claims were `fairly presented' to the state courts, the courts' decision not to reach the merits of the claims does not defeat a finding that the claims were properly exhausted.") (citing Castille v. Peoples, 489 U.S. 346, 349 (1989)). Therefore, the Court concludes that the petitioner's claims were all properly exhausted in the state courts.
However, even if the claim was not properly exhausted, the Court would still review it in this case. Although normally, the failure to exhaust state court remedies requires dismissal of the entire petition, Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)), the failure to exhaust state remedies is not an absolute bar when, as here, the federal claims lack merit and requiring additional proceedings would waste time and judicial resources. Id. at 333. The Court therefore would excuse the exhaustion requirement in the interest of judicial economy and proceed to address the merits of the petitioner's claims.
III.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527, 2534 (2003). 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). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). 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 McAdoo v. Elo, 365 F.3d 487, 493-93 (6th Cir. 2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc) cert. denied, ___ U.S. ___, 124 S. Ct. 1601 (2004); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first alleges that he received ineffective assistance of counsel in state court. The Michigan Court of Appeals adjudicated the claim on the merits and concluded that the petitioner's arguments lacked merit."It is past question that the rule set forth in Strickland [ v. Washington, 466 U.S. 668 (1984)] qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. at 391 (quoting 28 U.S.C. § 2254(d)(1)). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Ibid.
The Supreme Court emphasized that, when assessing counsel's performance, 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 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. In Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), the United States Supreme Court observed that "an analysis focusing solely on mere 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 trial cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
The petitioner believes that his attorney failed to investigate and call numerous favorable witnesses. The petitioner, however, has not identified the witnesses his attorney should have called or how they would have helped his case. "[A] petitioner cannot show deficient performance or prejudice resulting from a failure to investigate if the petitioner does not make some showing of what evidence counsel should have pursued and how such evidence would have been material." Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002) (citing Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Martin v. Mitchell, 280 F.3d 594, 608 (6th Cir. 2002)).
In his state appellate court brief, the petitioner argued that his attorney should have produced certain family members and acquaintances as character witnesses. The petitioner also maintained that his attorney should have called two witnesses who saw him leave the area of the alleged assault about 12:00 p.m. and another witness who saw the complainant, but not the petitioner, in the backyard of her home at the approximate time of the assault.
Attorneys have "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The petitioner's attorney informed the trial court that the petitioner had given her two lists of possible defense witnesses. Defense counsel indicated that she had reviewed the lists, sent out an investigator, and produced witnesses, which she thought assisted the case. She did not believe that the additional witnesses would add anything to the case. The petitioner then informed the trial court that he had been at Hart Plaza at the time of the alleged assault. Defense counsel replied that an investigator went to Hart Plaza and talked to some people, but was unable to find any alibi witnesses. The trial court concluded that defense counsel had not failed to do something she should have done. (Tr. July 13, 1999, at 69-73). Moreover, questions of trial strategy, such as the decision to call certain witnesses, are almost unassailable. See Strickland, 466 U.S. at 690 (finding strategic choices of counsel to be "virtually unchallengeable").
Thus, the record does not support the petitioner's contention that his attorney failed to investigate possible witnesses. Defense counsel's failure to call additional witnesses apparently was a strategic choice made after a thorough investigation of the facts. Such choices "are virtually unchallengeable." Strickland, 466 U.S. at 690. Furthermore, in light of "the victim's multiple identifications of [the petitioner], whom she had seen before at her neighbor's house, there did not exist a reasonable probability that the result of the proceeding would have been different had the proposed witnesses testified." Bell, Mich. Ct. App. No. 222174, at 2 (Aug. 13, 2002).
Next, the petitioner alleges that his attorney should have objected when the prosecutor urged the jury to convict him of first-degree criminal sexual conduct even if they determined that he did not penetrate the complainant. Although first-degree criminal sexual conduct requires penetration, see Mich. Comp. Laws 750.520b(1), the prosecutor did not encourage the jury to find the petitioner guilty of first-degree criminal sexual conduct without first finding that the petitioner penetrated the complainant. Instead, the prosecutor explained that penetration of the labia, however slight, constituted penetration for purposes of criminal sexual conduct. (Tr. July 13, 1999, at 89). Moreover, the trial court correctly charged the jury on the elements of the offense and also explained that the jurors must follow the law as given to them by the court, despite what the attorneys might have said about the law. ( Id. at 110-11, 120-21).
Next the petitioner alleges that his attorney should have investigated the matter of jurors who were sleeping during trial, and that he should have asked the trial court to question the jurors about the matter. The record indicates that the petitioner gestured to a juror to tap another juror on the arm because the petitioner thought the juror was falling asleep. (Tr. July 12, 1999, at 98). There is no other mention in the record of a sleeping juror. Furthermore, as the Michigan Court of Appeals recognized, defense counsel may have chosen not to bring the matter to the jurors' attention to avoid antagonizing them. The court of appeal properly relegated the choice of action (or inaction) to trial strategy. As noted above, courts generally defer strategic decisions under the Strickland test.
The petitioner's final claim about defense counsel is that the attorney failed to ask permission to have the jury view the crime scene. The petitioner has not alleged how a view of the crime scene would have helped his case. He alleged in his state court brief that the jurors would have been able to observe that it was impossible for anyone to be hiding or lying in wait as the complainant alleged because the yard should have been visible to the complainant.
However, the complainant did not testify that someone was hiding or lying in wait for her. Rather, she testified that she was grabbed from behind when she took the trash outside and that she had not seen the person when she went outside. Even if no one were visible when the complainant entered her backyard, someone could have approached her from behind as she walked away from the house and toward the garbage receptacle. Whether she saw the person before the assault was irrelevant to the question of whether the petitioner sexually penetrated her. Thus, a visit to the crime scene would not have aided the defense. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691.
The Court concludes for the reasons given above that defense counsel's performance was not deficient and that the alleged deficiencies did not prejudice the defense. Therefore, the state court's adjudication of the petitioner's ineffectiveness claim did not result in a decision that was contrary to or an unreasonable application of Strickland, and the petitioner is not entitled to habeas relief on the basis of his first claim.
B.
The second and fourth habeas claims allege that the evidence adduced at trial failed to establish the petitioner's guilt beyond a reasonable doubt. The Michigan Court of Appeals concluded on review of these claims that the evidence was sufficient for the jury to find the petitioner guilty.
There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Id. at 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Furthermore, unless exceptional circumstances are present, such as evidence of "obvious subterfuge to evade consideration of a federal issue," a state court's construction of its own statute is binding upon a federal court. Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975).
The petitioner was charged with violating Michigan Compiled Laws § 750.520b(1)(a), which provides that "[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if . . . [t]hat other person is under 13 years of age." "Sexual penetration" is defined in Mich. Comp. Laws § 750.520a(o) as an intrusion, "however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body. . . ."
The complainant's age was not disputed. The only question was whether the petitioner sexually penetrated her. The complainant testified that the petitioner
grabbed her by the back of her neck, dragged her across her back yard, pulled her down to the ground, pulled down her pants and underwear, and placed something inside her private parts. Within hours of the attack the victim provided police with [the petitioner's] description, indicating that she recognized him from around the neighborhood. She subsequently picked [the petitioner] out of a lineup at the police station that night, and identified [the petitioner] at trial as the man who assaulted her.Bell, Mich. Ct. App. No. 222174, at 1-2 (Sept. 21, 2001). See also Tr. July 12, 1999, at 103-16. The complainant specifically testified that the petitioner touched her inside "her private." (Tr. July 12, 1999, at 113). The petitioner, on the other hand, testified that he did not rape the victim or even see her on the date in question. (Tr. July 13, 1999, at 61, 65, 67).
The petitioner maintains in his habeas petition that the victim's descriptions of the assailant were inconsistent and that her version of the offense was unbelievable. The attorneys agreed in their closing arguments that the case amounted to a credibility contest between the petitioner and the complainant. ( Id. at 86, 97). However,
[a] reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). An assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Ibid.Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Moreover, federal courts must "give deferential review to state court decisions on sufficiency of the evidence claims." Gomez v. Acevedo, 106 F.3d 192, 194 (7th Cir.), vacated on other grounds, 522 U.S. 801 (1997).
A rational trier of fact could have determined from the complainant's testimony that the petitioner penetrated her vagina with his finger or some other object. Therefore, the state court's adjudication of the petitioner's claims was not an unreasonable application of Jackson, and the petitioner has no right to habeas corpus relief on the basis of his second and fourth claims.
C.
The third and final habeas claim alleges that there was insufficient evidence produced at the preliminary examination to bind the petitioner over to circuit court. The petitioner alleges that the complaining witness never testified to penetration at the preliminary examination and that the state district court judge abused her discretion by failing to make a determination of probable cause on the issue of penetration.
Although the state courts did not address this claim and the respondent did not submit the transcript of the preliminary examination to this Court, there is no constitutional right to a preliminary hearing when criminal charges are instituted against a suspect. Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir. 1965). Consequently, the Court may not vacate a conviction on the ground that the defendant was detained pending trial without a determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Saussy, 802 F.2d 849, 852 (6th Cir. 1986) (quoting United States v. Millican, 600 F.2d 273, 277-78 (5th Cir. 1979)).
IV.
The decision of the state court of appeals affirming the petitioner's convictions was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). Furthermore, that court's findings of fact, presumed correct on habeas review, are supported by the trial record. See 28 U.S.C. § 2254(d)(2), (e)(1).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #3] is DENIED.