Opinion
Case Number: 99-75866
January 23, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner David J. Brintley, a state inmate currently incarcerated at the Mound Correctional Facility in Detroit, Michigan, has filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition.
II. Facts
On November 14, 1991, a Brinks armored car courier, Richard Germany, was robbed and murdered while executing a pick-up at First Security Bank in Franklin, Michigan. Richard Germany and his partner, Christine Dotson, arrived at First Security Bank at approximately 11:00 a.m. on that date. Mr. Germany exited the vehicle, loaded a small cart with money, and entered the building. A few minutes later as Mr. Germany was exiting the bank, he was fatally shot twice in the chest.
FBI Special Agent Michael Gearty, together with the Franklin Police Department, investigated the robbery and murder. Agent Gearty continued his investigation without any substantial leads until August 1992, when he spoke with Bryan Robinson. Robinson told Agent Gearty that Petitioner was responsible for the robbery and murder. Shortly thereafter, Agent Gearty tape-recorded a conversation between Petitioner and another police informant. During that conversation, Petitioner stated that he had robbed the First Security Bank, shot a man, and gotten away with $40,000. This tape-recorded conversation and a transcript of the conversation were admitted into evidence at trial.
Alton Jenkins testified at trial that in late November 1991, Petitioner came to the apartment that Jenkins shared with Dennis Mosley and placed a brown paper bag filled with money on the dining room table. Petitioner and Mosley counted the money, which totaled approximately $28,000 to $29,000. Petitioner left the money with Mosley. Shortly before the end of 1991, Petitioner returned to the apartment. Jenkins testified that Petitioner stated that he robbed and shot a bank courier and described the robbery in some detail.
Petitioner testified in his own defense. He denied any involvement in the robbery and murder. He also denied ever telling Jenkins that he had committed the robbery. Petitioner did not deny making the tape-recorded statement to the police informant that he had robbed the armored car and shot the courier; however, at trial, Petitioner testified that he only made those statements in an attempt to impress the informant.
Petitioner was convicted of second-degree murder, armed robbery, and two counts of felony firearm.
III. Procedural History
Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of second-degree murder, armed robbery, two counts of possession of a firearm during the commission of a felony, and being a fourth habitual offender. On November 27, 1996, Petitioner was sentenced to 50-85 years imprisonment for the second-degree murder conviction, 50-85 years imprisonment for the armed robbery conviction, and two terms of two years imprisonment for each of the felony firearm convictions. Because Petitioner was a fourth habitual offender, the sentences for the second-degree murder and armed robbery convictions were vacated and replaced by a sentence of 50-85 years imprisonment for the habitual offender, fourth conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court violated the rules of evidence and David Brintley's constitutional right to confront the witnesses against him by admitting out-of-court statements of a non-testifying witness that Mr. Brintley committed both the robbery at issue and other offenses.
II. The trial court erred reversibly in prohibiting the defense from introducing and hilly exploring evidence that another suspect had confessed that he was guilty of the charged crimes.
III. Where the prosecution did not provide reasonable assistance to the defense in locating Lamont Wilson, defendant is presumed prejudiced.
IV. Defendant was unfairly prejudiced by testimony about his prior incarceration, his religion, and other uncharged robberies he allegedly committed.
The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Brintley, No. 200539 (Mich.Ct.App. June 26, 1998).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Brintley, No. 112621 (Mich. Feb. 25, 1999).
On December 17, 1999, Petitioner filed the pending habeas corpus petition presenting the same claims presented on direct review in the state court.
IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, 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 that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.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 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ; 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").
28 U.S.C. § 2254(e)(1) provides, in pertinent part:
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.
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, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. 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 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Alleged Confrontation Clause Violation
Petitioner claims that he was denied his right to a fair trial because the trial court permitted FBI Agent Michael Gearty to testify regarding a statement made by Bryan Robinson. Petitioner argues that the admission of this testimony was improper because it was impermissible hearsay and because it violated his Sixth Amendment right to "be confronted with the witnesses against him." U.S. Const. amend. VI.
Specifically, Agent Gearty testified that he identified Petitioner as a suspect following a conversation with Bryan Robinson. Agent Gearty testified that Robinson told him that Robinson believed Petitioner was responsible for the Brinks armored car robbery and the shooting of the guard. Petitioner's counsel objected to the admission of this testimony. The trial court held that the testimony was not hearsay because it was being offered to explain how Petitioner came to be a suspect after almost ten months of relative inactivity on the case, not for the truth of the matter asserted.
On appeal to the Michigan Court of Appeals, Petitioner claimed that this testimony was improperly admitted. The Michigan Court of Appeals rejected Petitioner's claim on the following grounds:
Defendant first argues that the trial court erred by allowing FBI Agent Michael Gearty to testify regarding a statement by Bryan Robinson. Specifically, defendant claims that it was error to admit Robinson's statement that he believed that defendant committed the robbery and murder. It is apparent from the context of the trial that Robinson's statement was not admitted to prove the truth of the matter asserted but to establish why the police focused their investigation on defendant. Thus, the statement was not hearsay. MRE 801(c). Further, the trial court instructed the jury that Gearty's testimony was not being offered to prove the truth of Robinson's statement.People v. Brintley, slip op. at 1.
Thus, the trial court determined that the disputed testimony was not hearsay. The Sixth Circuit Court of Appeals has held that statements that do not constitute hearsay do not implicate a defendant's Sixth Amendment right to confront the witnesses against him. U.S. v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991); see also U.S. v. Strickler, No. 92-5217, 1992 WL 310267 (6th Cir. 1992).
Moreover, even if the trial court erred in permitting Agent Gearty to testify regarding Robinson's statement, such error was harmless. The test for determining whether an error is harmless is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.' Under this standard, habeas petitioners . . . are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice." Brecht v. Abramson, 507 U.S. 619, 637 (1993), quoting Kotteakos v. U.S., 328 U.S. 750, 776 (1946); see also McGhee v. Yukins, ___ F.3d ___, 2000 WL 1475781, *25 (6th Cir. Oct. 6, 2000). Given the overwhelming evidence of Petitioner's guilt, including his own tape-recorded statement that he robbed and shot a man who would not relinquish a sack of money at a bank, this Court holds that any error in permitting Agent Gearty to testify regarding Robinson's statement was harmless.
C. Procedural Default
Respondent argues that Petitioner's remaining claims are barred from habeas corpus review because they are procedurally defaulted. The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; Murray v. 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. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court 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. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether Petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. See Coleman, 501 U.S. at 729-30. The last state court to issue a reasoned judgment denying Petitioner's claims, the Michigan Court of Appeals, stated, in pertinent part:
Defendant next asserts that the trial court erroneously excluded evidence that Lamont Wilson told Gearty that someone other than defendant committed the armored car robbery and murder. In order to preserve a challenge to the trial court's exclusion of evidence, the opposing party must make the substance of the evidence known to the court by offer, unless it was apparent from the context within which the questions were asked. M.R.E. 103(a)(2). In this case, defendant failed to make an offer of proof regarding the evidence which he now claims should have been admitted. Thus, this issue is not preserved for appellate review, and we decline to review it.
Defendant next argues that the prosecution did not provide reasonable assistance in locating Lamont Wilson, . . . The only relevant inquiry, upon entry of a guilty verdict, is whether the prosecutor's failure to produce a witness resulted in prejudice to the defendant. People v. Jackson, 443 N.W.2d 423 (1989). In order to preserve the issue of prejudice for appellate review, defendant must move for a new trial in the trial court on this basis or raise it in a motion for a post-trial evidentiary hearing Id.; People v. Dixon, 552 N.W.2d 663 (1996). Because defendant did not move for a new trial or a post-trial evidentiary hearing, we need not consider this issue on appeal. Moreover, we note that defendant did not provide a written request for assistance . . . and when he raised the issue in the trial court, he appeared satisfied with the prosecutor's response that he was provided the most recent information available on the location of the witness.
Defendant also argues that the trial court erred in admitting evidence that defendant had been previously incarcerated. Defendant failed to preserve this evidentiary issue for appellate review by lodging a specific objection at trial. . . . Further, defendant testified on direct examination that he had a prior criminal conviction.
Finally, defendant also contends that the trial court erred in admitting evidence that he practiced the voodoo religion. Defendant objected to the introduction of this evidence below on the basis that the evidence was irrelevant, and not on the basis that it was improper because it elicited defendant's religious beliefs. M.R.E. 610. Objections to evidence must specify the same ground for challenge as the party seeks to assert on appeal. People v. Fuhrman, 404 N.W.2d 246 (1987). We decline to consider this issue because any error was not decisive of the outcome.People v. Brintley, slip op. at 2-3.
The Michigan Court of Appeals concluded that Petitioner's claims were not preserved for appellate review. Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked.
Therefore, this Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In the instant case, Petitioner asserts no cause for his procedural default. His claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice.Schlup v. Delo, 513 U.S. 298 (1995).
The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id.
Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented to the trial court. Accordingly, Petitioner's remaining claims are procedurally barred.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.