Opinion
Case Number 00-10168-BC
January 6, 2004
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING PETITION FOR HABEAS CORPUS
Petitioner Reginald Blunt, currently incarcerated at the Bellamy Creek Correctional Facility in Ionia, Michigan, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition raises seven claims challenging the petitioner's 1996 jury convictions of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), conspiracy to commit armed robbery, Mich. Comp. Laws §§ 750.157(a) and 750.89; and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. After the respondent answered the petition, the matter was referred to Magistrate Judge Charles E. Binder for a Report and Recommendation. The magistrate judge filed a Report and Recommendation suggesting that the petition should be denied. The petitioner timely objected and the matter is now before the Court for de novo review. Because the magistrate judge correctly determined the applicable law and applied it to the allegations of the petition, the Court will adopt the recommendation and dismiss the petition.
I.
The petitioner has not objected to the summation of the relevant facts provided by the Magistrate Judge, which the Court adopts and reiterates as follows:
On November 17, 1995, sixty-one year old James Williams died from a single gunshot wound to his chest. Williams ran a "numbers" operation in which individuals would place petty bets on Michigan daily lottery numbers. At approximately 5:40 PM on November 17, 1995, a female arrived to place a bet. After the bet was placed, Williams let the woman out through the side porch door. Williams's live-in girlfriend then heard a single gunshot and the sounds of multiple people rushing off the porch.
The woman who placed the bet was later identified as Dorothy Ducre. She explained at trial that on November 17, 1995, the petitioner and two friends came over to her house. One was Richard Neal, and the other, whom Ducre did not know, was named Juan. The petitioner and Neal told Ducre that they wanted to do a "lick," which Ducre explained meant obtaining money in some fashion. They asked Ducre if she would help them out by playing some numbers at a house on 7th and Burt streets, and she agreed. Ducre's brother gave them all a ride over to the numbers house, and Ducre went inside after the other three were dropped off around the corner. The plan was for Ducre and her brother to pick up the other three on Cherry Street after they had robbed the numbers house. After placing her bet and coming back out onto the porch, however, Ducre felt someone behind her and heard a gunshot. She did not turn around to see who it was, but rather ran to the car and instructed her brother to take her home immediately. Ducre testified the following day that the petitioner came over to her house and told her that "he had probably killed the old man that was there," and that if Neal "get to running his mouth, he was going to kill him."
Neal testified that the plan was for the petitioner and Juan to hold down Williams while Neal grabbed his money, but things didn't go according to plan. Instead, as Ducre was coming out of the house, the petitioner "was on his way in," a shot was fired, and everyone scattered. Neal also testified that later that night, the petitioner and Juan came over to Neal's house. Neal claimed he said to the petitioner, "you know you shot him," to which the petitioner responded, "I know I killed him, but I wouldn't have — if he wouldn't have never pulled out no gun, I wouldn't have shot him." Neal testified, however, that he never saw Williams pull out a gun.
The defense theory of the case was that the petitioner was elsewhere when the crime was committed, and that Ducre, who was involved in a long-term lesbian relationship with a person named Tiffany Satchell, had framed the petitioner for this murder because Ducre was upset with the petitioner for having had sexual relations with Satchell on two occasions. Satchell testified, however, that she never had any kind of sexual relationship with the petitioner.
After an eight-day trial before the Honorable Leopold P. Borrello in the Saginaw County Circuit Court, the jury convicted the petitioner of felony murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. He was sentenced to life in prison.
The petitioner's convictions were affirmed by the Michigan Court of Appeals in an unpublished, per curiam opinion. People v. Blunt, No. 199656 (Mich.Ct.App. Sept. 25, 1998). The petitioner then filed a delayed application for leave to appeal this ruling in the Michigan Supreme Court, along with a request to remand the case for an evidentiary hearing. In August 1999, the supreme court denied review. People v. Blunt, No. 113488 (Mich. Aug. 31, 1999).
The petitioner filed this petition on April 28, 2000, raising the same seven claims for relief raised in the Michigan Court of Appeals and Michigan Supreme Court:
I. Trial counsel made a serious mistake that denied the defendant effective assistance of counsel, where he introduced the various character witnesses who were impeached by his prior specific bad acts of violence, which would have otherwise been inadmissible, and which adversely affected the outcome of his case.
II. The trial court abused its discretion when it precluded defense counsel from questioning defendant about his knowledge of the specific prior bad acts utilized by the prosecutor to impeach his character witnesses.
III. The trial court abused its discretion when it permitted the prosecutor to introduce "excited utterance" evidence regarding Dorothy Ducre's statement made after returning from the homicide scene contrary to MRE 302.
IV. Defendant's right to a fair trial was denied where the prosecutor introduced the improper rebuttal testimony of Stephanie Towner and Detective Roy Walton to impeach the defendant and his witnesses on collateral matters.
V. The prosecuting attorney committed reversible error in his improper and highly prejudicial argument to the jury where he (a) vouched for the police investigation and the truthfulness of the witnesses; (b) denigrated the defendant, his defense, defense counsel, and defense witnesses; (c) expressed his personal belief in defendant's guilt, and (d) argued facts not in evidence.
VI. The trial court erred reversibly in failing to give the jury proper final cautionary instructions regarding "flight, concealment, escape or attempted escape," CJI2d 4.4, controlling issues in the case.
A. The trial court failed to give complete and proper cautionary instructions relative to the use of the character witness impeachment evidence.
B. Counsel was ineffective for failing to request that the court give the jury cautionary and limiting instructions regarding defendant's concealment, escape, or attempted escape, CJI2d 4.4, and relative to the use of the character witness impeachment evidence.
VII. The prosecution failed to provide sufficient evidence to sustain a jury verdict of first-degree felony-murder, where it failed to charge or prove any one of the predicate felonies enumerated in the statute, MCLA 750.316(a); MSA 28.548.
A. The information was fatally defective and failed to conform to the proofs adduced at trial.
The respondent has filed an answer to the petition, contending that the claims are either procedurally defaulted, lack merit, or both.
II.
As the magistrate judge correctly observed, 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 "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). 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). 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, 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, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The magistrate judge found the determination of the Michigan Court of Appeals that the petitioner received the effective assistance of counsel to be a reasonable application of Supreme Court precedent. The petitioner asserts both in his application and his objections that his counsel provided constitutionally deficient representation when he presented additional character witnesses to testify to the petitioner's peacefulness after the first such witness was discredited on cross-examination. The petitioner further argues that his attorney failed to conduct an adequate pretrial investigation of any prior violent acts that could have been use to impeach him.
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." Id.
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 magistrate judge correctly found that the petitioner's counsel did not render constitutionally deficient representation. 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"). Although a different attorney may have concluded that offering subsequent character witnesses would be risky and not warranted by the potential benefit to be gained by the testimony, a decision to offer those character witnesses in an effort to bolster the conclusion that the defendant was not in fact a violent person was not patently unreasonable or inappropriate. More importantly, given the eyewitness testimony to both the petitioner's shooting of the decedent and the petitioner's confession to committing the shooting, the Court agrees with the magistrate judge that the petitioner cannot demonstrate that the outcome of the trial would have been any different had defense counsel not called the character witnesses.
B.
The petitioner's second and third claims challenge certain evidentiary rulings made by the trial court. The petitioner claims that the trial court abused its discretion when it precluded defense counsel from questioning the petitioner about his knowledge of the specific prior bad acts utilized by the prosecutor to impeach his three character witnesses. He also contends that the trial court abused its discretion when it permitted the prosecutor to introduce a statement under the "excited utterance" exception to the hearsay rule. Both were presented to the Michigan Court of Appeals as violations of state evidentiary rules, and the court of appeals rejected both claims. The magistrate judge recommended that these claims be denied because state law errors that do not rise to the level of a due process violation will not support the issuance of the writ of habeas corpus under 28 U.S.C. § 2254 and because the petitioner had not fairly presented his arguments to the state courts as violations of his federal constitutional rights. In his objections, the petitioner reiterates his belief that this evidence was improperly admitted under Michigan law.
"Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 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. Sowders, 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) (second alteration in original). The Supreme Court has declined to hold that similar "other acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352.
Furthermore, the doctrine of exhaustion of state remedies requires state prisoners to fairly present their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001). In Michigan, this means that petitioners must raise their claims before both the Michigan Court of Appeals and the Michigan Supreme Court before raising them on habeas review. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D. Mich. 2002). "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted). A claim is "fairly presented" to the state courts only if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relie[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681. As the magistrate judge explained, passing references to a denial of "due process" or a "fair trial" in what is otherwise plainly a state-law claim of error is insufficient to fairly present a claim to the state courts.
The Court finds that the magistrate judge properly recommended that this claim be denied. At a minimum, the claims are unexhausted for failure to present them to the Michigan state courts within a federal due process framework. On the merits, however, no Supreme Court decision regulates the manner in which Michigan courts can or cannot admit "bad acts" evidence. See Dowling, 493 U.S. at 352. See also Lisenba v. California, 314 U.S. 219, 227-28 (1941) ("The Fourteenth Amendment leaves California free to adopt a rule of relevance which the court below holds was applied here in accordance with the State's law."). The petitioner's objections to the recommended denial of these claims will therefore be overruled.
C.
The petitioner's fourth claim is that his right to a fair trial was denied when the prosecutor improperly elicited rebuttal testimony on collateral matters. His fifth claim is that the prosecutor committed prejudicial misconduct. His sixth claim is that the trial court committed reversible error by failing to give proper cautionary instructions. The Michigan Court of Appeals rejected all three contentions because defense counsel had made no contemporaneous objection to these alleged errors at the time they occurred. The magistrate judge found that these claims were therefore procedurally defaulted, that the petitioner had not demonstrated cause and prejudice for the default, and recommended that the claims be dismissed. The petitioner objects to the recommendation, arguing that error did in fact occur and that defense counsel improperly failed to tender an objection to these errors.
The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 752, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; see Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 122 S.Ct. 2635 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
If the last state court from which the petitioner sought review affirmed the conviction both on the merits and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Yist v. Nunnemaker, 501 U.S. 797, 803 (1991).
The procedural rule in question in this case is the requirement that a criminal defendant object to improper jury instructions and prosecutorial misconduct in order to preserve such a claim for appellate review. See People v. Ullah, 216 Mich. App. 669, 676-77, 679, 550 N.W.2d 568, 573-74 (1996) (citing People v. Van Dorsten, 441 Mich. 540, 544-45, 494 N.W.2d 737 (1993) and People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994)). The petitioner does not dispute that the contemporaneous-objection rule was firmly established and regularly followed with respect to these grounds before the petitioner's 1996 trial. See, e.g., People v. Buckey, 424 Mich. 1, 17-18, 378 N.W.2d 432, 440 (1985); People v. Sharbnow, 174 Mich. App. 94, 100, 435 N.W.2d 772, 775 (1989). Therefore, the state court's reliance on the petitioner's failure to object to the prosecutor's conduct and the trial court's instructions is an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994 (6th Cir. 1998); see Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding). It is also clear that the Michigan Court of Appeals explicitly enforced this procedural default. The petitioner mentions in passing that his counsel should have objected to these events and preserved the claims for appeal, but provides no analysis that this is so. At the very least, this claim is unexhausted and not ripe for review by this Court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000); Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002) (holding that ineffective assistance of counsel claim was not exhausted when different theories were advanced in the state courts than on habeas review). Because the petitioner failed even to present the most minimal support for his argument of ineffective counsel, however, the Court will simply observe that the claim appears to have no merit. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
No cause for the procedural default has been demonstrated. Furthermore, given the overwhelming evidence of the petitioner's guilt, it cannot be said that he would be unfairly prejudiced from these claims not being considered. Finally, the petitioner does not claim himself to be actually innocent.
D.
Finally, the petitioner alleges that the State failed to provide sufficient evidence from which a reasonable jury could have convicted him of first-degree felony murder. Specifically, the petitioner alleges that assault with intent to commit armed robbery is not a proper predicate felony for the purpose of the felony murder statute, and that the elements of the offense were not proven in any event. The magistrate judge found that Michigan courts were the final expositors of the elements of the crime under state law and that adequate evidence existed in the record to support the petitioner's conviction.
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 this Court. Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975).
Michigan punishes as murder in the first degree any homicide
committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping.
Mich. Comp. Laws § 750.316(1)(b). The Michigan courts have construed this provision to permit conviction for first-degree felony murder if the defendant (1) kills a fellow human being, (2) with the intent to kill, to do great bodily harm, or to take actions that create a high risk of death or great bodily harm knowing that one or the other would likely result, and (3) kills the individual concurrent with the commission, attempted commission, or assisted commission of any felony set forth in the statute. People v. Tanner, 255 Mich. App. 369, 418, 660 N.W.2d 746, 773 (2003).
The petitioner first reiterates in his objections his belief that assault with intent to rob is not a predicate felony, but does not address the magistrate judge's finding that the Michigan Court of Appeals' holding to the contrary is binding on this Court. See Mullaney, 421 U.S. at 691. No extraordinary circumstances justify disregarding the Michigan appellate court's construction of Michigan law.
Next, the petitioner reiterates that insufficient evidence existed to convict him of first-degree felony murder. The Court disagrees. The testimony at trial indicated that the petitioner planned a robbery in advance, brought a gun with him to the robbery scene, and then admitted to a confederate that he pointed his firearm at the victim and shot him while an attempted robbery was underway. As the magistrate judge correctly noted, a rational trier of fact who credited this testimony could have found that the petitioner knowingly disregarded the likelihood that the natural tendency of his act of pointing and shooting the firearm was to cause death or great bodily harm, and that said act occurred during an attempted robbery or its equivalent.
These objections to the recommendation of the magistrate judge lack merit, and will also be overruled.
III.
The magistrate judge correctly determined that the decision of the state appellate courts 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).
Accordingly, it is ORDERED that the Report and Recommendation [dkt # 15] is ADOPTED.
It is further ORDERED that the petition for a writ of habeas corpus is DENIED.