Opinion
No. 01-CV-73702-DT
December 19, 2002
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Kenneth Burns, a state prisoner currently confined at the Huron Valley Men's Facility in Ypsilanti, 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 murder following a jury trial in the Hillsdale County Circuit Court in 1997. He was sentenced to the mandatory term of life imprisonment without the possibility of parole.
In his pleadings, Petitioner asserts claims concerning the effectiveness of trial and appellate counsel, the sufficiency of the evidence, prosecutorial misconduct, and judicial bias and misconduct. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. FACTS
Petitioner's conviction arises from the beating death of Douglas Bluntschly at Petitioner's home in Reading, Michigan during the early morning hours on February 16, 1997. Petitioner was charged with first-degree murder. His defense at trial was that he was too intoxicated to form the specific intent for first-degree murder and, alternatively, that he was provoked and acted in the heat of passion.
At trial, State Trooper Tim Lehman testified that he and his partner Dorothy Hegwood responded to an emergency call at Petitioner's home between 2:30 and 3:00 a.m. on February 16, 1997. Petitioner answered the door and had blood on his hands and shoes. He was calm and unarmed. Lehman saw the victim's body lying on the living room floor with a plastic garbage bag on his head. His partner handcuffed Petitioner and took him outside. Lehman saw two women in the room crying and observed blood in the living room, kitchen, and bathroom, as well as on the snow outside of the house. He also found documents from the victim's wallet in the living room. It appeared that a fight had occurred. State Trooper Hegwood testified that she handcuffed Petitioner and placed him in the patrol car. He did not resist but seemed confused about what had occurred. She stated that Petitioner was transported to the hospital for medical treatment on his hands which appeared to have bite marks. Petitioner's blood was also drawn around 5:30 a.m. and sent to the crime lab for analysis. Toxicology reports indicated that Petitioner's blood alcohol content was .11 or .12 at that time.
Detective Sergeant Russell Byrne testified that he interviewed Petitioner at 12:25 p.m. on February 16, 1997. After Petitioner waived his Miranda rights, he admitted kicking, punching, and beating the victim. Petitioner told Byrne that he met Bluntschly at the 49er Bar in downtown Reading where they played pool until Petitioner left to walk home around 8:30 p.m. On his way home, he ran into two boys and told them that he would return to the bar later. He went back to his house, drank some beer, and then returned to the bar meeting the two boys on the way. He left the bar with one of the boys about 20 minutes later. While they were walking, Bluntschly and the other boy drove up and gave them a ride to Petitioner's home. They sat around drinking and talking. One of Petitioner's housemates, Cynthia Liddy, was there, but left shortly after they arrived. Petitioner told Byrne that Bluntschly made a sexual advance toward one of the boys, which made Petitioner angry. He said he did not remember exactly what happened, but recalled striking and kicking Bluntschly. He also remembered seeing Bluntschly lying on the living room floor and said that he appeared to be dead. Petitioner made several references to alcohol consumption, indicating that he had been drinking since that morning, and said that if he had not been drinking, probably nothing like this would have happened. Detective Byrne testified that Petitioner acted tired during the interview, but was coherent and able to answer questions.
Forensic pathologist Dr. Bader Cassin testified that the victim suffered from fractures of the skull, right cheek bone, right side of the jaw, bridge of the nose, both eye sockets, and 13 ribs, as well as defensive wounds to his arms and hands. He stated that the victim died from the accumulated trauma caused by his injuries. Dr. Cassin explained that the victim's breathing was impaired by the broken facial bones and ribs and the blunt force trauma to the head caused bleeding and swelling of the brain, which alone could have been lethal. Toxicology reports indicated that Bluntschly's blood alcohol level was .06 at the time of death.
Dr. Cassin testified that the blood alcohol level drops over a period of hours. Based upon the report that Petitioner's blood alcohol level was .11 or .12 at 5:30 a.m., he estimated that Petitioner's blood alcohol level would have been .17 or .18 at 2:30 or 3:00 a.m.
Blair Jackson and Terry Niehm, the two boys with Petitioner and the victim on the night of the murder, also testified at trial. They described meeting Petitioner and Bluntschly at the bar and then returning to Petitioner's home where they drank beer and talked until about 11:00 p.m. when they returned to Niehm's house and spent the night. Jackson testified that Petitioner drank about 15 beers in about an hour and both boys described him as intoxicated. The boys recalled that Cynthia Liddy and Lisa Rager were in a back room of the house and that Liddy gave Petitioner a marijuana cigarette. They also testified that Petitioner and Bluntschly tussled once while they were at Petitioner's house, but then laughed about it. They did not know what started the fight that lead to Bluntschly's death. Niehm testified that Petitioner had made a comment to him about jumping Bluntschly and taking his money.
Petitioner's housemate, Cynthia Liddy, testified that she spoke with Petitioner, Bluntschly, and the two boys in the front living room on the night of February 16, 1997, and noted that the discussion was friendly. When Petitioner and Bluntschly returned from taking the boys home, Petitioner came into her bedroom and told her that Bluntschly had asked one of the boys "to suck him," which made him angry. Petitioner then ordered Bluntschly into the bathroom and she heard them fighting. After a few minutes, she knocked on the bathroom door. When Petitioner opened it, he had blood on his hands. She asked what he was doing and told him to stop. Petitioner grabbed her by the neck, pushed her toward the bedroom, and told her to mind her own business. Liddy saw blood on the sink and floor of the bathroom and saw Bluntschly standing in front of the sink bleeding from his nose which looked swollen. Petitioner returned to the bathroom and she heard a lot of hitting. Eventually, Petitioner told Bluntschly to go into the living room. Liddy went into the same room and told Petitioner to stop, but said that she was afraid to do more. Petitioner told Bluntschly to clean himself up and gave him a clean shirt. Liddy stated that Bluntschly's face was bloody and bruised and he was kind of unsteady.
At some point, Bluntschly tried to run away out the back door, but Petitioner followed him and caught him in the front yard. Liddy heard more fighting and yelling by Petitioner. About five minutes later, Petitioner came back into the house carrying Bluntschly over his shoulder. Petitioner dropped him on his back on the floor. Liddy heard Bluntschly breathing but he was not moving. Petitioner was pacing around and telling Bluntschly to quit making breathing noises. Petitioner kicked Bluntschly in the ribs and stomped on his head repeatedly. Petitioner was yelling "die mother fucker, die." Liddy said that Bluntschly's face was swollen and black and she thought he was dead because he could not hear him breathing anymore. She felt no pulse on his neck. Petitioner put a garbage bag over the victim's head. When Liddy told Petitioner that he had killed Bluntschly, he replied, "Life's a bitch and then you die." Liddy testified that the beating had gone on for a couple of hours. She testified that Petitioner went through Bluntschly's pockets, but she did not see him take any money. Liddy admitted that she had consumed alcohol, smoked marijuana, and took a prescription drug on the day of the incident.
Cynthia Liddy's friend, Lisa Rager, testified regarding what she observed at Petitioner's home on the night of February 16, 1997. She essentially corroborated Liddy's version of events.
Petitioner testified in his own defense at trial. He stated that he was 19 years old and had moved to Michigan from Tennessee three months prior to the incident in search of work. He left his estranged girlfriend and child in Tennessee. He was depressed and drinking heavily due to his circumstances. He testified that he smoked a marijuana cigarette and began drinking beer in the morning on February 15, 1997 and continued drinking throughout the evening. Petitioner described meeting and socializing with Blair Jackson, Terry Niehm, and Douglas Bluntschly that evening at the 49er Bar and then at his home. He estimated that he consumed a case of beer that day, a portion of which were 16-ounce beers. He also smoked marijuana that evening.
Petitioner testified that he overheard Bluntschly make a comment about a "blow job" to one of the boys and said that it upset him because he had been molested when he was a little boy. Petitioner remembered being in Bluntschly's truck and being in the bathroom that evening. He recalled fighting with Bluntschly in the bathroom, getting bit on the finger, and kicking him once or twice, but could not remember the details of what else transpired. He next recalled seeing Bluntschly lying on the living room floor. Petitioner testified that he did not know Bluntschly prior to that evening and did not intend to kill him.
At the close of trial, the jury convicted Petitioner of first-degree murder. The trial court subsequently sentenced him to life imprisonment without the possibility of parole.
II. PROCEDURAL HISTORY
Following sentencing, Petitioner filed an appeal as of right and a motion for remand with the Michigan Court of Appeals, asserting the following claims: (1) trial counsel was ineffective for failing to present expert testimony on the primary defense of intoxication and for presenting inconsistent defenses of intoxication and provocation; (2) the prosecutor failed to present sufficient evidence of first-degree murder; (3) the prosecutor engaged in misconduct; and (4) the trial court engaged in misconduct. The Court of Appeals granted Petitioner's motion to remand and returned the case to the trial court for an evidentiary hearing on the ineffective assistance of counsel claim.
At the evidentiary hearing, Petitioner's trial counsel testified that he had two basic strategies at trial. First, he wanted to convince the jury that Petitioner was too intoxicated to form the specific intent to kill. Second, he wanted to convince the jury that the crime was committed in the heat of passion, consistent with the intent for voluntary manslaughter, by claiming that Petitioner was molested as a child and only attacked the victim after he made sexual advances towards the boys. Counsel stated that he did not consult with a toxicologist because he believed that the blood alcohol analysis and lay testimony was sufficient to support his intoxication argument.
Dr. David Schneider, professor of pharmacology at Wayne State University, testified that Petitioner's blood alcohol level during the altercation would have been above .20 and maybe as high as .25, although he agreed that it would have been approximately .18 at 2:30 or 3:00 a.m. Dr. Schneider presented charts illustrating Petitioner's likely blood alcohol level throughout the day based upon the trial testimony concerning his alcohol consumption. Dr. Schneider stated that 90% of people with a blood alcohol level of .20 or higher will fail muscle control and cognitive tests. He further testified that few people can manage to act rationally with a blood alcohol content of .23 to .25 and they would be operating in a blackout state.
At the end of the hearing, the trial court concluded that defense counsel's decision not to call a toxicologist was a matter of trial strategy and that counsel was not ineffective.
Following the remand, the Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Burns, No. 207320, 2000 WL 33535515 (Mich.Ct.App. Jan. 28, 2000) (unpublished). Petitioner filed a request for rehearing raising the same claims, as well as a claim that trial and appellate counsel were ineffective for failing to assert that the verdict was against the great weight of the evidence. The court denied Petitioner's request for rehearing.
Petitioner thereafter filed an application for leave to appeal with the Michigan Supreme Court raising the same claims presented to the Michigan Court of Appeals originally and in the request for rehearing. The Michigan Supreme Court denied leave to appeal in a standard order. People v. Burns, 463 Mich. 878, 618 N.W.2d 593 (Sept. 26, 2000)
Petitioner filed the present petition for a writ of habeas corpus, dated September 20, 2001, on September 28, 2001. asserting the same claims presented to the Michigan Supreme Court. Respondent filed an answer to the petition seeking dismissal for failure to exhaust state court remedies on March 21, 2002. Petitioner filed a reply to that answer on April 15, 2002. This court thereafter issued an order compelling Respondent to file an answer addressing the petition's merits. Respondent filed that supplemental answer on May 30, 2002 contending that Petitioner's claims should be denied for lack of merit and/or based upon procedural default.
III. STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., 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 Supreme 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 Claim — Expert and Defenses
Petitioner first claims that he is entitled to habeas relief because trial counsel failed to call a toxicology expert at trial and asserted inconsistent defenses of intoxication and provocation. Respondent contends that this claim is without merit.
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 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)
Relying upon the principles of Strickland, the Michigan Court of Appeals concluded that Petitioner was not denied the effective assistance of counsel. The court found that counsel's presentation of the alternate defenses of intoxication and provocation was based upon the evidence and was reasonable trial strategy. The court further found that counsel was not required to call a toxicologist because there was ample evidence from which counsel could and did argue that Petitioner was too intoxicated to form the specific intent for first-degree murder. See Burns, 2000 WL 33535515 at *1-2.
Having reviewed the record, this court finds that the Michigan Court of Appeals' decision is consistent with Strickland and constitutes a reasonable application thereof. Defense counsel acted reasonably in arguing intoxication and provocation as defenses based upon the evidence of Petitioner's alcohol consumption, behavior, and past history, in conjunction with testimony regarding the victim's conduct. Further, counsel adequately presented the intoxication defense without producing a toxicologist given the other expert and lay testimony as to Petitioner's intoxication, as well as the parties' stipulations concerning blood alcohol levels. Petitioner has not established that defense counsel's performance fell outside the wide-range of professional, competent legal assistance, nor has he established that he was prejudiced by counsel's conduct. Habeas relief is not warranted on this claim.
B. Ineffective Assistance Claim — Great Weight Issue
Petitioner also claims that trial and appellate counsel were ineffective for failing to raise/preserve a claim that the first-degree murder verdict was against the great weight of the evidence. Respondent argues that this claim has not been properly exhausted in the state courts, but nonetheless lacks merit. This court has discretion to deny a habeas claim on the merits despite a petitioner's failure to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2).
A federal habeas court has no power to grant habeas relief on a claim that a state conviction is against the great weight of the evidence. See Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985); Dell v. Straub, 194 F. Supp.2d 629, 648 (E.D. Mich. 2002). Such a claim is not of constitutional dimension for habeas corpus purposes unless the record is so devoid of evidentiary support that a due process issue is raised. See Griggs v. State of Kansas, 814 F. Supp. 60, 62 (D. Kan. 1993).
In this case, Petitioner cannot establish that counsel was deficient or that he was prejudiced by counsel's conduct in failing to assert/preserve a claim that the verdict was against the great weight of the evidence because such a claim lacks merit. Under Michigan law, a criminal defendant may move for a new trial based upon a claim that the verdict was against the great weight of the evidence. The test for such a determination is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. See People v. McCray, 245 Mich. App. 631, 637, 630 N.W.2d 633 (2001) (citing People v. Gadomski, 232 Mich. App. 24, 28, 592 N.W.2d 75 (1998)).
Petitioner claims that the verdict was against the great weight of the evidence because he presented evidence of intoxication which negated the elements of premeditation and deliberation necessary for a first-degree murder conviction. The prosecution, however, presented credible testimony, including that of roommate Cynthia Liddy and Detective Byrne, which indicated that Petitioner knew what he was doing, had ample opportunity to take a "second look" during the incident, and acted with premeditation and deliberation in killing the victim. Conflicting testimony is an insufficient ground for the grant of a new trial. See People v. Lemmon, 456 Mich. 625, 647, 576 N.W.2d 129 (1998). Given the testimony presented at trial, this court concludes that Petitioner has not shown that trial or appellate counsel was ineffective for failing to assert/preserve the great weight of the evidence issue. Petitioner has not established that his attorneys' conduct so undermined the proper functioning of the adversarial process that the proceedings cannot be relied on as having produced a just result. Habeas relief is not warranted on this claim.
C. Insufficient Evidence Claim
Petitioner next claims that he is entitled to habeas relief because the prosecution failed to present sufficient evidence to support his first-degree murder conviction. In Jackson v. Virginia, 443 U.S. 307, 319 (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 DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998)
Under Michigan law, first-degree premeditated murder requires proof that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a second look. Id. Premeditation and deliberation may be established by evidence of "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." Id. Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993). A defendant's intent or state of mind, like all the elements of a crime, may be shown by circumstantial evidence. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997)
The Michigan Court of Appeals in this case found that sufficient evidence was presented to support Petitioner's conviction based upon his roommate's testimony describing the extensive and prolonged beating and Petitioner's statements and conduct following the incident. The court also found that the jury reasonably determined that Petitioner's intoxication did not negate the existence of premeditation and deliberation. See Burns, 2000 WL 33535515 at *3.
Having carefully reviewed the record, this court concludes that the Michigan Court of Appeals' decision is consistent with Jackson and constitutes a reasonable application of federal law. The testimony of Petitioner's roommate, Cynthia Liddy, provides sufficient evidence to support Petitioner's first-degree murder conviction. Petitioner's insufficient evidence claim essentially challenges the jury's evaluation of the testimony and the weight to be accorded certain evidence. However, it is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983); see also Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). Given the evidence presented at trial, this court finds that a rational trier of fact could have found the elements of first-degree murder beyond a reasonable doubt. Petitioner is not entitled to relief on this claim.
D. Prosecutorial Misconduct Claim
Petitioner next claims that he is entitled to habeas relief because the prosecutor engaged in misconduct by badgering him when he testified, asking a witness improper questions, and making improper statements during closing arguments.
The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Factors to be considered in weighing the extent of a prosecutor's misconduct are:
the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.'" Id. (citations omitted)
The Michigan Court of Appeals reviewed Petitioner's prosecutorial misconduct claims and concluded that Petitioner was not denied a fair trial by the alleged misconduct. The court found that defense counsel objected to, and the trial court promptly ceased, any improper questioning by the prosecutor such that Petitioner was not denied a fair trial. The court also found that Petitioner failed to object to the prosecutor's closing argument but that no miscarriage of justice would result from the court's refusal to review his claim. See Burns, 2000 WL 33535515 at *4.
This court agrees and concludes that the Michigan Court of Appeals' decision is consistent with United States Supreme Court precedent and constitutes a reasonable application of that law. Petitioner was not denied a fair trial by the prosecutor's actions. The prosecutor's alleged improper questions and comments were isolated in nature, were addressed by the trial court when objected to, and did not tend to mislead or prejudice the jury.
Moreover, even if the challenged conduct rose to the level of a constitutional violation, Petitioner is still not entitled to relief. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also O'Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had substantial and injurious effect or influence upon jury's verdict). Given the witness testimony presented at trial, as discussed supra, there was sufficient evidence for the jury to find Petitioner guilty of first-degree murder. The prosecutor's conduct, even if improper, did not have a substantial and injurious effect or influence on the jury's verdict. Petitioner is not entitled to relief on this claim.
E. Judicial Bias/Misconduct Claim
Lastly, Petitioner claims that he is entitled to habeas relief because the trial judge was biased against him and engaged in misconduct. Specifically, Petitioner claims that the trial judge belittled defense counsel, cut the questioning of witnesses short, and made comments reflecting impatience with counsel. Respondent contends that this claim is barred by procedural default and is otherwise without merit.
Habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72 (1977) ; Couch v. Jabe, 951 F.2d 94 (6th Cir. 1991). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85.
In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion discussing the judicial bias/misconduct issue. In dismissing Petitioner's claim, the court relied upon a state procedural bar — Petitioner's failure to object to the judge's conduct at trial. Burns, 2000 WL 33535515 at *4 The failure to make a contemporaneous objection is a recognized and firmly established independent and adequate state law ground for refusing to review trial errors. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the Michigan Court of Appeals dismissed Petitioner's judicial bias/misconduct claim based upon procedural default — his failure to object at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). In this case, Petitioner neither alleges nor establishes cause for his failure to object to the judge's conduct at trial. The Court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. See, e.g., Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983)
Nonetheless, this court notes that Petitioner cannot establish prejudice as his judicial bias/misconduct claim lacks merit. The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) To state a claim that a judge is biased, a petitioner must show either actual bias or the appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997). Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999). Further, to violate a petitioner's right to a fair trial, a trial judge's intervention in the conduct of a criminal trial must be significant and be adverse to the petitioner to a substantial degree. See, e.g., McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985); see also Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (state trial judge's behavior must render the trial fundamentally unfair to warrant habeas relief). Although the trial judge in this case may have been abrupt or short with counsel, he treated the parties equally in attempting to move the case along and did not exhibit bias against Petitioner or counsel. The trial court's conduct did not render Petitioner's trial fundamentally unfair.
Lastly, Petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] 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." Schlup, 513 U.S. at 324. Petitioner has made no such showing in this case. Petitioner's judicial bias/misconduct claim is thus barred by procedural default, is otherwise without merit, and does not warrant habeas relief.
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.