Opinion
Case No. 05-CV-70529-DT.
July 26, 2006
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR APPOINTMENT OF QUALIFIED COUNSEL
I. Introduction
Petitioner Kenneth Brian Burton, a state prisoner confined at the Thumb Correctional Facility in Lapeer, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. He has also filed a motion for appointment of qualified counsel. Petitioner was convicted of first-degree criminal sexual conduct, Mich. Comp. L. § 750.520b(1)(h)(i), following a jury trial in the Kent County Circuit Court in 1997. He was sentenced as a second habitual offender, Mich. Comp. L. § 769.10, to 15 to 40 years imprisonment.
In his pleadings, Petitioner raises claims concerning the state courts' denial of his motion for relief from judgment and request for evidentiary hearing on ineffective assistance of appellate counsel and sentencing credit claims, the jury instructions, the denial of substitute counsel, ineffective assistance of trial counsel, prosecutorial misconduct, and the late endorsement of an expert witness. For the reasons stated below, the petition for writ of habeas corpus is denied. The motion for appointment of counsel is also denied.
II. Facts and Procedural History
Petitioner's conviction stems from his sexual assault upon Janet Lloyd, his adult sister, at her residence in Grand Rapids, Michigan during the early morning hours on June 19, 1997. At trial, Ms. Lloyd testified that she rented a room in the Grand Rapids home of Claudia and Terry Toms in 1997 and that she was involved in a relationship with a woman named Pam Martin. On the evening of June 18, 1997, Ms. Lloyd went to a bar with Petitioner and the Toms to celebrate her birthday. She and Petitioner both consumed a fair amount of beer. Upon returning home, she and Petitioner went to sleep at opposing ends of an L-shaped sofa in the living room. Ms. Lloyd awoke to find Petitioner having sexual intercourse with her. She asked him what he was doing and pushed him away. Petitioner returned to his section of the sofa and went to sleep. Ms. Lloyd was confused about what had happened and did not know what to do. She got up, smoked a cigarette, and then went back to sleep. When the morning alarm sounded, Ms. Lloyd telephoned her girlfriend, Pam Martin, and told her what had happened. Ms. Lloyd then went to work and told her boss about the incident. The police were called and Ms. Lloyd made a report. Ms. Lloyd denied that she discussed having sex with Petitioner and denied that she consented to the sexual act.
Pam Martin appeared at trial and recalled her conversation with Ms. Lloyd. Ms. Martin also said that she confronted Petitioner about the incident the next day. Petitioner told her that he was sorry, but claimed that the sex was consensual.
The Toms testified that they went to the bar with Petitioner and Ms. Lloyd, that they went to bed upon their return home, and that they did not witness the assault. Ms. Toms also testified that Petitioner called to speak to Ms. Lloyd the next day and said that he did something that he should not have, but did not go into detail. Ms. Lloyd subsequently returned home crying and told her about the sexual assault.
Petitioner's ex-girlfriend, Patricia Patelski, testified that Ms. Lloyd called her and told her that Petitioner raped her. Ms. Patelski said that she confronted Petitioner about the incident and he initially denied it. Petitioner then admitted that he had sex with his sister, but claimed that it was consensual. The defense questioned Ms. Patelski about a letter she wrote to Petitioner in which she said that she did not believe that he forcibly assaulted his sister. In response, the prosecution elicited testimony from Ms. Patelski that she believed that Petitioner forced himself upon the victim.
Police officers, medical personnel, and counselors also testified at trial about their investigation of the incident. Testing indicated the presence of seminal fluid on Ms. Lloyd's vaginal and rectal swabs and smears, but there was no evidence of tearing, bruising or other trauma upon examination.
Petitioner did not testify at trial. His defense was that the sexual encounter with his sister was consensual.
At the close of trial, the jury convicted Petitioner of first-degree criminal sexual conduct. The trial court subsequently sentenced him as a second habitual offender to 15 to 40 years imprisonment, to be served consecutively to a sentence for which he was on parole.
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed his conviction and sentence. People v. Burton, No. 209767, 2000 WL 33407248 (Mich.Ct.App. Aug. 25, 2000) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Burton, 463 Mich. 986, 624 N.W.2d 191 (2001).
Petitioner thereafter filed a motion for relief from judgment with the trial court, which was denied. People v. Burton, No. 97-07149-FC (Kent Co. Cir. Ct. Feb. 5, 2003). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Burton, No. 252520 (Mich.Ct.App. April 23, 2004). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Burton, 471 Mich. 947, 690 N.W.2d 105 (2004).
Petitioner thereafter filed the present habeas petition asserting the following claims:
I. His constitutional rights were violated when the state courts denied his motion for relief from judgment and motion to remand for an evidentiary hearing.
A. He is entitled to a new trial or a direct appeal as of right where he was denied the effective assistance of appellate counsel.
B. His due process right to a valid sentence was violated when the trial court refused to credit 245 days of incarceration.
II. His due process rights were violated when the trial court failed to sua sponte give the jury an instruction on the defense of consent when the defense asserted that Ms. Lloyd consented.
III. He was denied due process when the trial court failed to inquire into his request for substitute appointed counsel.
IV. He was denied the effective assistance of trial counsel.
A. Counsel's failure to object to hearsay and questions was prejudicial and opened the door to the prosecution's prejudicial statements in closing arguments.
B. Counsel was ineffective for failing to request a jury instruction on the defense of consent.
C. Counsel was ineffective for failing to properly relay a plea offer.
V. He was denied due process when the prosecution misrepresented facts in the record and commented on facts not of record.
VI. He was denied due process when the prosecution elicited testimony of witnesses not listed as potential witnesses, by stressing the importance of the role Ms. Lloyd's boss played in assisting her.
VII. He was denied due process when the trial court, over defense objection, allowed the late endorsement of a rape trauma expert without limiting the scope of testimony.
Respondent has filed an answer to the petition, asserting that it should be denied because the claims are not cognizable, defaulted, and/or lack merit. Petitioner has filed a reply to the answer.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his 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).
"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002). Lastly, this Court presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis
A. Motion for Relief from Judgment Claims
Petitioner first asserts that he is entitled to habeas relief because the state courts erred in denying his motion for relief from judgment and his request for an evidentiary hearing. Specifically, Petitioner asserts that appellate counsel was ineffective and that he is entitled to 245 days of sentencing credit.
1. Ineffective Assistance of Appellate Counsel Claim
Petitioner alleges that appellate counsel was ineffective for making the following argument on appeal where his defense was consent:
Having sex with a sleeping or intoxicated person does not necessary mean no consent. Defendant contends that in the course of human conduct, it is possible for one person to have sex with a sleeping partner and the sex not be force. Ratification of unknown prior events occurs regularly between persons.
Petition, p. 13. Respondent has not addressed this argument.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. "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." McQueen v. Scroggy, 99 F.3d 1302, 1311-12 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 686).
Furthermore, it is well-established that a criminal defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 754 (1983). Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
In this case, the trial court determined that appellate counsel was not ineffective in making his arguments because the jury found that the victim was physically helpless and thus could not consent. See Burton, No. 97-07149-FC at *3. This decision is neither contrary to Supreme Court precedent nor an unreasonable application of the law or the facts. Petitioner has failed to show that appellate counsel's performance fell outside the wide range of professionally competent assistance. Appellate counsel made the "ratification" argument in contending that the trial court should have instructed the jury on consent and that trial counsel erred in failing to request such an instruction. Given the victim's testimony that she was asleep when Petitioner initiated the sex act, appellate counsel's ratification argument was reasonable. Petitioner has not shown that appellate counsel's strategy was deficient, or that he was unfairly prejudiced thereby. Petitioner has failed to establish that appellate counsel was ineffective. Habeas relief is not warranted on this claim.
2. Sentencing Credit Claim
Petitioner also contends that the trial court failed to give him 245 days of sentencing credit for time served in the county jail. Respondent contends that this claim is not cognizable upon habeas review.
A state court's alleged misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern only. See Howard v. White, 76 Fed. Appx. 52, 53, 2003 WL 22146139, *2 (6th Cir. 2003) (citing Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991), and Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)). It is well-settled that state law issues are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Draughn v. Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992) (federal courts cannot review a state's alleged failure to adhere to its own sentencing procedure).
The trial court concluded that Petitioner was not entitled to sentencing credit on his current sentence because he was on parole for a 1987 offense when he committed the instant offense. See Burton, No. 97-07149-FC at *2. Under Michigan law, when a parolee is arrested for a new criminal offense, he is held on a parole detainer until he is convicted of that offense, and he is not entitled to credit for time served in jail on the sentence for the new offense. See Mich. Comp. L. § 791.238(2). A parole detainee who is convicted of a new criminal offense is entitled to credit for time served in jail as a parole detainee, but that credit may only be applied to the sentence for which the parole was granted. See People v. Stewart, 203 Mich. App. 432, 433, 513 N.W.2d 147 (1994). A parolee who is sentenced for a crime committed while on parole must serve the remainder of the term imposed for the previous offense before he serves the term imposed for the subsequent offense. See Mich. Comp. L. § 768.7a(2). A federal court will not review a state court's decision on a matter of purely state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Long v. Smith, 663 F.2d 18, 22-23 (6th Cir. 1981). Further, Petitioner has not shown that the state court erred. Habeas relief is not warranted on this claim.
B. Jury Instruction Claim
Petitioner next asserts that he is entitled to habeas relief because the trial court failed to sua sponte instruct the jury on the defense of consent. Respondent contends that this claim is barred by procedural default and lacks merit.
Federal 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, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). 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. Wainwright, 433 U.S. at 85; Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). 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 on the jury instruction issue. In dismissing this claim, the court relied upon Petitioner's failure to request the instruction at trial. Burton, 2000 WL 33407248 at *1. The failure to request an instruction/make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. See People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994); see also 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. See Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of state procedural default rules. See Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). 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). The Michigan Court of Appeals dismissed Petitioner's jury instruction claim based upon a procedural default — his failure to request the instruction 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).
Petitioner alleges ineffective assistance of counsel as cause to excuse his default. Even assuming that Petitioner could establish that counsel erred, however, he cannot establish prejudice. In order for habeas relief to be warranted on the basis of incorrect jury instructions, a petitioner must show more than that the instructions are undesirable, erroneous or universally condemned; rather, taken as a whole, they must be so infirm that they rendered the entire trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). State law instructional errors rarely form the basis for federal habeas corpus relief. Estelle, 502 U.S. at 71-72.
The failure to give a defense instruction that is supported by the evidence does not automatically entitle a petitioner to habeas relief; the failure to instruct must have rendered the trial fundamentally unfair. See Maes v. Thomas, 46 F.3d 979, 984-85 (10th Cir. 1995); Nickerson v. Lee, 971 F.2d 1125, 1137 (4th Cir. 1995). A failure to instruct does not deprive a petitioner of fundamental fairness where the instructions as a whole adequately present the defense theory to the jury. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson, 431 U.S. at 155.
In this case, the Michigan Court of Appeals determined that Petitioner was not prejudiced by the trial court's failure to sua sponte instruct the jury on consent because the evidence did not reasonably support such an instruction and because the instruction is inappropriate where the victim is physically helpless and non-consent is implied from the inability to communicate. Burton, 2000 WL 33407248 at *1. The Michigan Court of Appeals' decision is neither contrary to Supreme Court precedent nor an unreasonable application thereof. The victim testified that she was asleep when Petitioner initiated the sex act, was thus physically helpless, and could not consent. A consent instruction was not reasonably supported by the evidence. Moreover, even if it were, the jury instructions as a whole were adequate to protect Petitioner's rights. The trial court properly instructed the jury on the elements of the charged offense and the jury was well aware of Petitioner's consent defense based upon the questions and arguments posed by counsel. The jury could not have accepted Petitioner's defense without acquitting him under the instructions given by the trial court, and this Court must presume that the jury followed the court's instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987); see also United States v. Olano, 507 U.S. 725, 740 (1993). Petitioner has not established that the jury instructions rendered his 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). "`[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. His jury instruction claim is thus barred by procedural default, otherwise lacks merit, and does not warrant relief.
C. Substitute Counsel Claim
Petitioner also asserts that he is entitled to habeas relief because the trial court failed to inquire into his request for substitute appointed counsel and appoint new counsel. It is well-established that "[t]he right to counsel of choice, unlike the right to counsel . . . is not absolute. An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate `good cause' to warrant substitution of counsel." United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). Good cause includes "a conflict of interest, a complete breakdown in communication or an irreconcilable conflict with [an] attorney." Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985).
When reviewing whether a court abused its discretion in denying a defendant's motion to substitute counsel, a court generally considers, "the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense. . . . Further, consideration of such motions requires a balancing of the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice." Iles, 906 F.2d at 1131, n. 8 (internal quotations omitted).
The Michigan Court of Appeals denied relief on this claim finding no abuse of discretion by the trial court because Petitioner had failed to establish a complete breakdown of the attorney-client relationship or a legitimate difference of opinion regarding a fundamental trial tactic. Burton, 2000 WL 33407248 at *1.
This decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. The record indicates that the trial court neither abused its discretion nor violated Petitioner's constitutional rights in denying his request for substitute counsel. Petitioner's complaints about trial counsel's performance and advice were not credited nor viewed as substantial by the trial court and do not establish good cause for substitution. The record indicates that counsel investigated the case, prepared a defense, and consulted with Petitioner before trial. Counsel indicated that she was ready to defend Petitioner at trial, and Petitioner made no objections. Petitioner has not shown that a legitimate breakdown in the attorney-client relationship occurred. Habeas relief is not warranted on this claim.
D. Ineffective Assistance of Trial Counsel Claims
Petitioner next asserts that he is entitled to habeas relief because trial counsel was ineffective for failing to object to hearsay and questions, for failing to request a consent instruction, and for failing to communicate a plea offer. Respondent contends that this claim lacks merit.
As discussed supra, to prevail on a claim that defense counsel was ineffective, a habeas petitioner must prove that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial. Id.
Citing the Strickland standard, the Michigan Court of Appeals concluded that Petitioner failed to establish that trial counsel erred and/or that he was unfairly prejudiced by counsel's conduct and denied relief on this issue. Burton, 2000 WL 33407248 at *2. Having reviewed the record, this Court agrees and finds that the state court decision is neither contrary to Strickland nor an unreasonable application thereof.
First, Petitioner has not shown that counsel erred or that he was prejudiced by counsel's purported failure to object to alleged hearsay or improper questions. Counsel may have reasonably decided that objections were either unwarranted or would have drawn more attention to unfavorable testimony. The victim's testimony was properly admitted at trial and defense counsel extensively cross-examined her. Further, the victim's statements to other witnesses were admissible and did not violate the Confrontation Clause because the victim testified at trial and was subject to cross-examination by the defense. See United States v. Owens, 484 U.S. 554, 560 (1988) ("We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination."). Patricia Patelski's testimony, even if improper to some degree under state law, did not prejudice Petitioner. Ms. Patelski admitted that she was not present during the incident and trial counsel effectively cross-examined her about possible bias. Ms. Patelski also provided somewhat favorable testimony in reporting that Petitioner told her that the sex with his sister was consensual. Under the circumstances of this case, Petitioner has not established that counsel was ineffective under Strickland.
Second, given this Court's determination, supra, that Petitioner was not denied a fair trial by the trial court's failure to sua sponte instruct the jury on consent, Petitioner cannot establish that trial counsel was deficient and/or that he was prejudiced by counsel's conduct in such a regard.
Third, Petitioner has failed to demonstrate that counsel failed to properly communicate a plea offer. The record indicates that the only plea offer given by the prosecution was for Petitioner to plead guilty to one count of first-degree criminal sexual conduct in exchange for dismissal of the sexual and habitual offender supplements. Petitioner has not shown that another, more favorable offer was made or that counsel failed to properly advise him of the prosecution's offer. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. See, e.g., Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance of counsel do not justify federal habeas relief); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3rd Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient basis to hold an evidentiary hearing in habeas proceedings). Petitioner has also not shown that he would have accepted the plea offer rather than proceeding to trial, particularly given that he raised no such concerns at the time of trial. Petitioner has failed to establish that counsel was ineffective under the Strickland standard. Habeas relief is therefore not warranted on this claim.
E. Prosecutorial Misconduct Claims
Petitioner also asserts that he is entitled to habeas relief because the prosecution engaged in misconduct by misstating the facts, by commenting on facts not of record, and by over-emphasizing the role of the victim's boss to bolster her testimony. Respondent contends that these claims are barred by procedural default and lack merit.
As noted, 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, 433 U.S. at 85. Here, the Michigan Court of Appeals rendered the last reasoned opinion discussing these issues and relied upon Petitioner's failure to object to the prosecutor's conduct at trial in dismissing his claim. Burton, 2000 WL 334047248 at *1. 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 and the state court sufficiently relied upon the default despite reviewing the claim for manifest injustice. See discussion supra.
In his reply brief, Petitioner asserts ineffective assistance of counsel as cause to excuse his default. A claim of ineffective assistance of counsel asserted as cause to excuse a procedural default is itself an independent constitutional claim which requires exhaustion in state court. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). A petitioner must exhaust his state court remedies prior to seeking federal habeas relief by fairly presenting the substance of each federal constitutional claim in state court. See 28 U.S.C. §§ 2254(b)(1)(A), 2254(c). Petitioner alleges ineffective assistance of counsel as cause for failing to object to the alleged prosecutorial misconduct for the first time in his reply brief. Because Petitioner did not raise nor properly exhaust these particular ineffective assistance of counsel claims in the state courts, however, he cannot rely upon such claims to establish cause to excuse his procedural default. See Coleman v. Mitchell, 268 F.3d 417, 432 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417-18 (6th Cir. 2001).
A federal 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).
If the Court were to address this issue, the Court would find that Petitioner failed to establish prejudice as his prosecutorial misconduct claims lack merit under the standard of Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), and Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002). As discussed in Respondent's answer, pp. 22-24, the prosecutor's comments and questions were proper, based upon reasonable inferences from the evidence, or made in response to defense arguments. The prosecutor's conduct did not render Petitioner's trial fundamentally unfair.
Further, as previously discussed, Petitioner has not established that a fundamental miscarriage of justice has occurred under the standard set forth in Schlup, 513 U.S. at 326-27, and Bousley, 523 U.S. at 624. His prosecutorial misconduct claims are thus barred by procedural default, otherwise lack merit, and do not warrant federal habeas relief.
F. Expert Witness Claim
Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court allowed the late endorsement of a rape trauma expert without limiting the scope of testimony. Respondent contends that this claim is defaulted and lacks merit.
It is well-settled that there is no general constitutional right to discovery in a criminal case. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (denying due process claim of a defendant who was convicted with aid of surprise testimony from an accomplice who was an undercover agent); United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988) (citing Weatherford). A decision regarding the endorsement of a witness generally constitutes a state law matter within the trial court's discretion. See Hence v. Smith, 37 F. Supp. 2d 970, 982 (E.D. Mich. 1999) (citing cases); Whalen v. Johnson, 438 F. Supp. 1198 (E.D. Mich. 1977) (it is not a fundamental error to permit a prosecutor to endorse a witness during trial even though the prosecutor had previously filed an affidavit stating that the witness was not material). This Court may only grant habeas relief to a person who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Only when an evidentiary ruling is "so egregious that it results in a denial of fundamental fairness," may it violate due process and warrant habeas relief. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
The trial court's late endorsement of the rape trauma expert did not deprive Petitioner of a federal constitutional right. The Michigan Court of Appeals determined that the trial court did not abuse its discretion in allowing the late endorsement of the rape trauma expert because the testimony was admitted for a proper purpose, defense counsel had the opportunity to interview the witness before he testified, and there was no showing that defense counsel was unprepared to cross-examine the witness. See Burton, 2000 WL 33407248 at *1. This Court will not disturb the state court's determination that the endorsement of the rape trauma expert was proper under Michigan law. Petitioner has not shown that the state court's decision is contrary to or an unreasonable application of United States Supreme Court precedent. He has also not demonstrated that his trial was rendered fundamentally unfair by the late endorsement of the expert witness given that defense counsel had the opportunity to interview the witness before he testified. Petitioner was not deprived of exculpatory evidence nor denied the ability to prepare an adequate defense to the charges. Habeas relief is not warranted on this claim.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented in his petition.
Accordingly, the Court DENIES WITH PREJUDICE the petition for writ of habeas corpus. Given this determination, the Court also DENIES Petitioner's motion for appointment of qualified counsel.
IT IS SO ORDERED.