Opinion
No: 01-70172
December 12, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Timothy Laranzo Calhoun, a state inmate currently incarcerated at the Ryan 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
Petitioner's conviction arises out of a traffic stop in the City of Jackson, Michigan, on August 23, 1997.
Jackson City Police Officer John Holda testified that on August 23, 1997, he responded to a call at Avenue Auto in Jackson, Michigan, regarding a stolen vehicle. The previous day, an employee at Avenue Auto reported that a Pontiac Grand Am had been stolen. Officer Holda testified that on August 23rd, that employee again contacted police because the person she suspected of stealing the Grand Am had come to Avenue Auto. Officer Holda testified that he then received word that Officer Michael Gleeson had located and stopped the Grand Am. Officer Holda responded to that location, where he found a woman identified as Tanisha Bowler in the driver's seat of the vehicle and a man he identified as Petitioner in the passenger seat. Officer Holda informed Officer Gleeson that he needed to interview Petitioner regarding a stolen car. Officer Gleeson told Officer Holda that Petitioner had been fidgety and nervous when Officer Gleeson stopped the car. Officer Holda testified that they therefore decided to pat-down Petitioner prior to taking him to the police station for their own safety.
In the process of searching Petitioner, Officer Holda testified that they discovered a large bulge in Petitioner's pocket. They asked Petitioner what was in his pocket. Petitioner removed the bulge from his pocket, revealing sixty packets of heroin inside a plastic bag.
Officer Holda testified that he and Officer Gleeson then took Petitioner to the police station and read him his rights. Petitioner signed a form acknowledging that he understood his rights. Officer Gleeson then questioned Petitioner regarding the heroin. Officer Holda testified as to the statement made to police by Petitioner: Petitioner stated that an unidentified man who lived in Jackson had given him the packets of heroin. Petitioner stated, although he had not yet sold any of the heroin packets for which he would charge ten dollars, if he did sell any of the packets, he would receive two dollars for each packet sold. Finally, Petitioner stated that he was attempting to make money selling heroin because he had just purchased a new vehicle and needed to make payments on the vehicle.
Petitioner did not present any witnesses in his own defense.
III. Procedural History
Following a jury trial in Jackson County Circuit Court, Petitioner was convicted of possession with intent to deliver less than fifty grams of heroin. On July 24, 1997, Petitioner was sentenced, as a habitual offender, second, to eight to thirty years imprisonment, to be served consecutively to the felony sentence for which Petitioner was on parole at the time he was arrested for the heroin offense.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court reversibly erred in denying Mr. Calhoun's request for a continuance to retain counsel, in violation of Mr. Calhoun's constitutional right to retain counsel of his choice and due process of law.
II. The trial court lacked justification for trying Mr. Calhoun in leg chains, thereby denying Mr. Calhoun his due process right to a fair trial. This Court should remand Mr. Calhoun's case to the trial court to determine if the leg chains were visible to the jury at any time during the trial. If they were, then Mr. Calhoun should be wanted a new trial.
III. Mr. Calhoun's sentence of eight to thirty years for possession with intent to deliver of 2-1/2 grams of heroin is disproportionate to the offense, and constitutes cruel and unusual punishment.
On July 22, 1998, the Michigan Court of Appeals denied Petitioner's motion to remand, because the issue was unpreserved where "defendant did not object below to being shackled at trial, did not request that the shackles be removed and did not timely move below for a new trial on this basis." People v. Calhoun, No. 205280 (Mich.Ct.App. July 22, 1998).
On June 11, 1999, the Michigan Court of Appeals issued an opinion affirming Petitioner's conviction and sentence. People v. Calhoun, No. 205280 (Mich. June 11, 1999).
Petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented on direct review to the Michigan Court of Appeals.
People v. Calhoun, No. 115168 (Mich. Jan. 31, 2000).
On January 2, 2001, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. The state court reversibly erred in denying Petitioner's request for a continuance to retain counsel, in violation of his 6th and 14th amendment constitutional right to retain counsel of his choice and due process of law.
II. The state court denied Mr. Calhoun his 14th amendment constitutional right to due process of law, when it sua sponte ordered Mr. Calhoun to be tried in leg chains at his jury trial, without any stated justification whatsoever for its decision.
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 r1521. 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. Trial Court's Denial of Request for Continuance
Petitioner claims that the trial court violated his rights under the Sixth and Fourteenth Amendments by refusing to grant a continuance so that he could retain counsel of his choice.
The United States Supreme Court has held that "broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel."Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Refusal to grant a continuance warrants habeas corpus relief only when the refusal was so arbitrary as to constitute a due process violation. Bennett v. Scroggy, 793 F.2d 772, 774 (6th Cir. 1986).
The last state court to issue a reasoned opinion addressing this claim, the Michigan Court of Appeals, held, in pertinent part:
Defendant's first issue on appeal is that the trial court erred in denying defendant's request for an adjournment of trial to retain new counsel. Defendant was represented by appointed counsel. Defendant and his appointed counsel participated in a number of pretrial proceedings, including a final pretrial conference conducted five days before trial. Defendant never indicated any reservations about the quality of his appointed counsel. On the morning of trial defendant announced a desire to retain new counsel. Defendant had not, in fact, retained counsel at that point in time. The trial court, noting that the jury, witnesses and attorneys were ready to proceed, refused to adjourn the trial. . . .
We review a trial court's decision to deny an adjournment of trial under the abuse of discretion standard. . . . This standard suggests that deference be given to the trial court's decision. . . .
The following factors should be considered when reviewing a trial court's decision to deny a defendant's motion for continuance:
(1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision. [People v. Echavarria, 233 Mich. App. 356, 369 (1999)].
The Court should weight these factors under the circumstances of each case. No single factor is dispositive.
The first factor, whether defendant is asserting a constitutional right, weighs in favor or granting an adjournment of trial. The right to counsel is an unfettered right. U.S. Const. Am. VI;. . . . We note, however, that the United States and Michigan Constitutions guarantee the right to competent counsel. Competent counsel is not always counsel of defendant's choice. While each defendant can retain counsel of his or her choice, the ability to retain counsel is not an absolute right and can be restricted where, as here, a defendant's request to retain counsel is untimely and adversely impacts the administration of the court
The second factor, whether defendant has a legitimate reason for asserting the request for new counsel, weighs against granting an adjournment. Defendant informed the trial court that he "did not feel that he was being represented properly." Defendant failed to articulate a factual basis for his belief. [footnote omitted] We have held that "a mere allegation that a defendant lacks confidence in his attorney, unsupported by substantial reason, does not amount to adequate cause, particularly when the request is belated." People v. Tucker, 181 Mich. App. 246, 255 (1989), remanded sub nom People v. Musick, 437 Mich. 867 (1990). Here, defendant did not support his request with a substantial reason.
Next, we find that defendant was negligent in asserting his request. Defendant was in court for a final pretrial conference five days before trial. Defendant was informed of his trial date. Defendant raised no concerns regarding the quality of his counsel. [footnote omitted].
The fourth factor, whether defendant was attempting to delay trial, is a neutral factor that neither assists nor harms defendant's position. . . . Nonetheless, requests to adjourn trial made on the day of trial should be viewed with suspicion. In this case, the fact that defendant never before raised concerns about the quality of his counsel's representation, together with the fact that neither defendant nor his counsel articulated a factual basis to support a finding that an adjournment was warranted, may be viewed as circumstantial evidence that the request for adjournment was asserted for dilatory reasons.
Finally, and most significantly, we find that defendant failed to demonstrate prejudice resulting from the trial court's refusal to grant an adjournment. Defendant argues that counsel's failure to bring a motion to suppress evidence seized from defendant; counsel's failure to call witnesses during the trial, and counsel's failure to present a "viable defense" demonstrate prejudice which denied defendant a fair trial. We disagree. Defendant has failed to argue that any motion to suppress evidence would have been successful. Interestingly, it appears that the heroin possessed by Mr. Calhoun was discovered in a pat down search. Pat down searches under similar circumstances have long been held to be permissible. Terry v. Ohio, 392 U.S. 1 (1968). While defendant criticizes his trial counsel's failure to call witnesses, defendant has not identified the witnesses that allegedly should have been called and has failed to inform us how these witnesses would have assisted his defense. Defendant also argues that trial counsel's strategy should have been that defendant did not knowingly possess heroin and that the drugs were placed in defendant's pocket without defendant's consent or knowledge. However, testimony from the arresting officer established that defendant admitted that he possessed the drugs for a friend and that defendant would make $2 for each packet of heroin sold. Simply put, defendant has utterly failed to demonstrate prejudice from the trial court's refusal to grant an adjournment of trial.
In sum, we find that the trial court did not abuse its discretion when it denied defendant's request to adjourn trial made on the morning of trial.People v. Calhoun, slip op. at 2-3.
Petitioner has failed to show that the Michigan Court of Appeals decision that the trial court did not err in refusing to grant a continuance was an abuse of discretion or contrary to or an unreasonable application of Supreme Court precedent. The trial court's refusal to grant a continuance did not deprive Petitioner of his right to due process. He has not shown that his trial counsel was inadequate or that he was prejudiced by not being able to postpone the trial to retain his own counsel.
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
C. Trial of Petitioner While Wearing Leg Chains
Next, Petitioner claims that he is entitled to habeas corpus relief because his leg chains were left on during the one-day trial. Respondent claims that this issue is barred from review in this Court because it is 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. Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether Petitioner's claim is 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 opinion addressing these claims, the trial court, stated, in pertinent part:
Defendant next argues that he was denied a fair trial because he was forced to wear leg chains during the trial. Prior to the start of trial, the trial court ordered the court officer to take defendant's handcuffs off but to "leave the leg chains on." Defense counsel did not object to the leg chains being left on defendant and there is no record to establish that the leg chains were visible to the jurors. We find that this issue was not properly preserved for our review and, therefore, we decline to address whether the trial court abused its discretion by requiring defendant to wear leg chains during this one day trial.People v. Calhoun, slip op. at 3.
Thus, because the Michigan Court of Appeals declined to address the claim on the basis of Petitioner's failure to comply with a state procedural rule, the doctrine of procedural default is invoked and this court may not review this claim unless Petitioner 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 this claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In the instant case, Petitioner asserts the ineffective assistance of counsel as cause for his procedural default. The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a habeas petitioner has received 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 counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal citations omitted).
The Court further explained that, to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must 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), cert. denied 520 U.S. 1257 (1997).
Petitioner claims that his attorney was ineffective for failing to object to Petitioner's being tried while wearing leg chains. Even assuming that Petitioner's trial attorney erred in failing to object to the leg chains, Petitioner has failed to establish ineffective assistance of counsel. To establish ineffective assistance of counsel, Petitioner must establish that but for counsel's error, "there is a reasonable probability that. . . the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The evidence of Petitioner's guilt was so overwhelming, that, even if trial counsel erred in failing to object to the leg chains, Petitioner has failed to show that this error undermines the reliability of the result. Accordingly, Petitioner has failed to establish ineffective assistance of counsel.
Because Petitioner has failed to establish that his trial attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. His claim is 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 claim is 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.