Opinion
Case Number: 99-75092
January 4, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Steven Cory Cojocar, a state inmate currently incarcerated at the Ionia Correctional Facility in Ionia, 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 petition is denied.
II. Facts
Petitioner's conviction arises out of the shooting death of Herman Gardula at his home on Hickory Street in the City of Detroit on March 31, 1994. Mr. Gardula's wife testified that during the early morning hours of March 31, 1994, the doorbell rang and Mr. Gardula answered the door. Mrs. Gardula heard a man ask if they had ordered a pizza. Mr. Gardula asked what address the man needed. Mrs. Gardula testified that her husband and the man continued to converse for about ten more minutes when she heard a gunshot. Mr. Gardula died from a gunshot wound to the upper chest.
When police responded to the shooting, they found a .45 caliber spent shell casing on the front porch. The police also noted that there was a bullet hole in the glass storm door. The medical examiner testified that the entry wound in Mr. Gardula's chest was consistent with the bullet having first pierced a glass or plastic door panel.
Christine Domanski lived on Hickory Street approximately six blocks from the Gardula's house. Domanski testified that, on the night of the shooting, Larry Hughes and Deangelo Jones, both of whom were friends of hers, and Petitioner and Christopher Branscum, neither of whom she had met previously, came to her house. She noticed that Petitioner had a .45 caliber gun. While she was in the living room, she overheard a conversation between the four men who were in the kitchen. Branscum, who was holding a pizza box apparently taken out of her garbage, said, "Let's go rob somebody." Tr., 1/9/96, p. 37.
Domanksi's roommate Catrina Sanchez's trial testimony was similar to Domanski's. She testified that she saw Branscum with a pizza box and that she overheard the four men talking about a robbery. Both Domanski and Sanchez testified that shortly after the robbery discussion, the four men left the house.
A few hours after the shooting, police stopped a car driven by Petitioner in which Branscum and Jones, were passengers, for a traffic violation. Petitioner was taken into custody for driving with a suspended license and the car was impounded. Police later searched the car pursuant to a search warrant and found a .45 caliber semi-automatic gun in the trunk. Bahistics experts later determined that this was the same gun that fired the shot that killed Mr. Gardula.
Following his arrest, Petitioner gave two statements to police, both of which were admitted at trial. In the first statement, Petitioner stated that he, Branscuni, Jones and Hughes, drove to the victim's house because they heard that he kept a lot of guns and money in the house. He also stated that Jones went to the front door of the house, while Petitioner, Branscum and Hughes waited at the side of the house. Petitioner fled with the other men when he heard a gunshot. In his second statement to police, Petitioner admitted that he was the person on the porch with the gun. He stated that when he rang the doorbell, Mr. Gardula opened the inside door, but left the screen door closed. Petitioner asked Mr. Gardula if he had ordered a pizza. Mr. Qardula left the door for a few moments. Petitioner told police that when Mr. Gardula returned, he opened the screen door, and while opening the door, hit Petitioners hand and arm with the door, causing the gun to discharge.
Petitioner was tried jointly with co-defendant Branscum. Branscum testified at trial that it had been Petitioner's idea to rob Mr. Gardula and that Petitioner had shot him. Petitioner was convicted of felony murder, assault with intent to rob, and felony firearm.
III. Procedural History
Following a jury trial in Recorder's Court for the City of Detroit, Petitioner was convicted of first-degree felony murder, assault with intent to rob while armed, and felony firearm. On January 26, 1996, he was sentenced to life imprisonment without the possibility of parole for the first-degree felony murder conviction, life imprisonment for the assault with intent to rob conviction, and two years imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court erred reversibly in refusing to instruct on the defense of accident, requiring reversal of the felony murder conviction.
II. The trial court's instructions effectively directed a verdict on two of the elements of felony murder.
III. Defendant was denied the effective assistance of counsel by his attorney's failures to move to redact Branscum's statement to the police, to move for a contemporaneous limiting instruction when the statement was introduced, and to impeach Branscum with a prior felony conviction when he testified.
IV. The trial court erred reversibly in denying defendant's — motions for severance or for a separate jury, or for mistrial,
V. Defendant's convictions and sentences for both felony murder and assault with intent to rob violate the protection against double jeopardy.
The Michigan Court of Appeals affirmed Petitioner's convictions for first-degree felony murder and felony firearm, but vacated his conviction and sentence for assault with intent to rob while armed as violating the double jeopardy clause. People v. Cojocar, No. 193961 (Mich. Ct. App. June 26, 1998).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court presenting the same claims presented to the Michigan Court of Appeals, with the exception of the claim upon which the Michigan Court of Appeals granted relief. The Michigan Supreme Court denied leave to appeal. People v. Cojocar, No. 112599 (Mich. May 26, 1999).
On October 20, 1999, Petitioner filed the pending habeas corpus petition presenting the following claims:
I. Petitioner's writ of habeas corpus should be granted where his 14th Amendment right to due process under the United States Constitution was violated when the trial court refused to instruct the jury on the defense of accident and that refusal being contrary to clearly established federal law.
II. Petitioner's writ of habeas corpus should be granted where his 14th Amendment right to due process under the United States Constitution was violated when the trial court's instructions effectively directed a verdict on two of the elements of felony murder and that instruction being contrary to clearly established federal law,
III. Petitioner's writ of habeas corpus should be granted where he was denied his 6th Amendment right under the United States Constitution to effective assistance of counsel by his attorney's failure to move to redact Branscum's statement to the police, to move for a contemporaneous limiting instruction when the statement was introduced, [and] to impeach Branscum with a prior felony conviction when he testified.
IV. Petitioner's writ of habeas corpus should be granted where his 14th Amendment right under that United States Constitution was violated when the trial court denied Petitioner's motions for severance or for a separate jury, or for mistrial.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, 15 19-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id.. at 1521. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law . . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id.. at 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Jury Instructions
Petitioner claims that he is entitled to habeas corpus relief because the jury instructions violated his right to due process. First, Petitioner argues that the trial court erred in refusing to instruct the jury on the defense of accident. Second, Petitioner argues that the jury instructions were improper because the trial court's instructions effectively directed a verdict on two elements of felony murder.
Generally, a claim that a state trial judge gave erroneous jury instructions is not cognizable in a federal habeas action unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned', but that it violated some [constitutional] right.'" Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973).
The Michigan Court of Appeals held that Petitioner was not entitled to an accident instruction, stating, in pertinent part:
Defendant Cojocar argues that the trial court erred by failing to instruct the jury regarding the defense of accident. We disagree. To prove felony murder the prosecutor did not have to prove an intent to kill or injure, nor did the prosecutor argue that Cojocar intended to kill or injure the victim. Instead the prosecutor emphasized that he did not have to prove an intent to kill or injure and argued that defendant intentionally committed acts which created a very high risk of death or great bodily harm with the knowledge that death or great bodily harm was the probable result of his actions. Under the circumstances of this case, accident was not a viable defense against the felony-murder charge . . . . Therefore, the trial court did not err in failing to instruct the jury on the defense of accident.People v. Colocar, slip op. at 4.
Petitioner has failed to establish that the state court's decision was contrary to or an unreasonable application of Supreme Court precedent or that the trial court's refusal to give an accident instructed so infected the entire trial as to violate due process. Under Michigan law, the elements of felony murder are: (1) the killing of a human being; (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result; (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in Mich. Comp. Laws. § 750.316.People v. Kelly, 588 N.W.2d 480, 642 (Mich.Ct.App. 1998). Assault with intent to rob is one of the predicate felonies enumerated in § 750.316.
In addition, Michigan law provides that the facts and circumstances of the killing may give rise to an inference of malice. People v. Cannes, 597 N.W.2d 130, 136 (Mich. 1999). Malice may be inferred from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm, including evidence that the defendant used a deadly weapon. Id. Thus, under Michigan law and under the circumstances of the case, Petitioner's claim that the gun accidentally discharged was not a viable defense to the felony-murder charge. Accordingly, Petitioner has failed to establish that the trial court violated his right to due process in refusing to give an accident instruction.
Petitioner also argues that his due process rights were violated because the jury instructions directed a verdict with respect to two elements of felony murder, intent and the commission of the underlying felony. Respondent argues that this claim is barred from habeas review 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. Thomoson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent."Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar."
Simpson, 94 F.3d at 202.
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether Petitioner's claims are procedurally defaulted by looking to the Michigan Court of Appeals decision, the last reasoned state court decision addressing the merits of Petitioner's claims. The Michigan Court of Appeals held, in pertinent part:
Defendant Cojocar argues that the trial court erred when instructing the jury regarding robbery and intent. No manifest injustice occurred, so appellate review of the challenged instructions is waived by defendant's failure to object to these instructions at trial.People v. Cojocar, slip op. at 4.
The state court's reliance on Petitioner's failure to object to the jury instructions at trial was an adequate and independent state ground on which to decline to review Petitioner's claim. See Engle v. Isaac , 456 U.S. 107, 110 (1982). Thus, this Court may not review Petitioner's claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage ofjustice. Coleman, 501 U.S. at 750.
In the instant case, Petitioner claims that his attorney's ineffectiveness constitutes "cause." 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 "[aittorney 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).
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. Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (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. 28 U.S.C. §§ 2254(b)(1)(A) 2254(c). A petitioner "`fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Tornik, 986 F.2d 1506, 1516 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993). State prisoners in Michigan must raise each claim in the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. See Manning v. Alexander , 912 F.2d 878, 881 (6th Cir. 1990); Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir. 1973).
Although Petitioner presented a claim of ineffective assistance of counsel to the state courts, he did not present the claim that counsel was ineffective in failing to object to the jury instructions which Petitioner challenges in the instant petition. Accordingly, this claim is unexhausted.
A federal court may deny a habeas petition on the merits despite a petitioner's failure to exhaust state remedies for all his claims. 28 U.S.C. § 2254(b)(2); see also Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (holding that where a federal constitutional claim was plainly meritless, federal court could properly address the merits of the petition); Cain v. Redman , 947 F.2d 817, 820 (6th Cir. 1991) (holding that the doctrine of exhaustion raises only federal-state comity concerns and is not a jurisdictional limitation of the power of the court), cert. denied, 503 U.S. 922 (1992). For the reasons set forth below, the Court concludes that Petitioner's ineffective assistance of counsel claim is meritless. Accordingly, in the interests of efficiency and justice, the Court will address Petitioner's claim rather than dismissing the petition on the ground of failure to exhaust. See 28 U.S.C. § 2254(b)(2); Cain, 947 F.2d at 819 (holding that where an unexhausted federal constitutional claim is plainly meritless, "it would be a waste of judicial time and resources to require exhaustion").
Petitioner claims that his attorney was ineffective in failing to object to the trial court's jury instructions regarding felony murder, which Petitioner contends directed a verdict on two elements of felony murder, intent and commission of the underlying felony. As discussed in more detail infra, the United States Supreme Court set forth the standard applicable to ineffective assistance of counsel claims in Srickland v. Washington, 466 U.S. 668 (1984). In order to establish ineffective assistance of counsel, a petitioner must show that his attorney's performance was deficient and that that deficiency prejudiced petitioner. Id. at 687.
In the brief in support of his petition, Petitioner quotes a portion of the trial court's jury instructions regarding felony murder and argues that these excerpts demonstrate that the trial court effectively directed a verdict with respect to the intent and commission of the underlying felony elements of felony murder. After careful review of the cited portions of the jury instructions and the instructions in their entirety, this Court determines that the trial court did not direct a verdict on two elements of felony murder. The jury instructions regarding felony murder were, in pertinent part:
I'd like to talk to you now about the elements of the offenses charged here, and the elements are the separate factors, each of which must be proven to your satisfaction beyond a reasonable doubt, before you would be able to return a verdict of guilty.
Felony murder has several elements or factors as do the other offenses that you will be considering here . . . .
. . . First the People must prove that the defendants caused the death of Herman Gardula. That is, that Herman Gardula died as a result of having been shot. Second, that the defendants had one of these three states of mind: That they intended to kill Herman Gardula; that they intended to do great bodily harm to Herman Gardula, or they knowingly by the way they were acting, created a very high risk of death or great bodily harm, knowing that death or such great bodily harm was the likely result of the way that they were acting toward Herman Gardula. Third, that when the agent that caused the death of Herman Gardula occurred, that the defendant or those with whom they were working, was committed, the defendant was committing, or was attempting to commit, was helping someone else commit the crime of robbery.
To establish attempt, that is, if you find that this was attempted robbery or attempted larceny, to establish attempt to commit a crime, the prosecutor must prove beyond a reasonable doubt that the defendants intended to commit the crime of robbery or larceny, and that they took some action toward committing those crimes, but failed to complete the crime.
. . .
I'm going to talk to you now about the elements of robbery, and that's what we are talking about here, killing committed in the course of the robbery. I am going to give you the elements of robbery, and I'm going to use the name of Mr. Gardula. I'm going to give it to you as if it were a completed robbery. So that you will understand what robbery is, and this is an interrupted robbery in this case, but I will give you all the elements of what a robbery, in fact, is,
. . .
. . . [A]t the time the money or property was taken, the defendants intended to take it away from Herman Gardula, and that they meant to deprive him of that property permanently. When I say this to you, the crime was not completed, but it would have been a completed robbery. I'm talking to you about the attempt to commit a robbery.
I'm going to talk to you now about the elements of larceny . . . . . . [T]he People would have to prove that the property was taken; the defendants intended to permanently deprive the owner of the property.
That again means that was the specific intent of a defendant in a larceny, to take away the property of the owner, and that was exactly what was in their mind. Now, you must think about all of the evidence in deciding a defendant's state of mind at the time of the killing.
The defendant's state of mind may be inferred from the kind of weapon used, the type of wounds inflicted, the acts and the words of the defendants and any other circumstances surrounding the killing.
You may infer that the defendants intended to kill; a dangerous weapon was used in a way that was likely to cause death. Likewise, you may infer that the defendants intended the usual results that follow from use of a dangerous weapon, and a gun, of course, under the law, is in fact a dangerous weapon.
Tr., 1/11/96, pp. 10-16.
Considering the jury instructions as a whole, the Court concludes that the trial court did not direct a verdict on the intent and commission of the underlying felony elements of felony murder. Accordingly, Petitioner's attorney was not ineffective in failing to object to the instructions. Petitioner thus has failed to establish cause for his procedural default.
Petitioner's 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 that the trial court improperly directed a verdict on two elements of felony murder is procedurally barred.
C. Ineffective Assistance of Counsel Claim
Petitioner next claims that he is entitled to habeas corpus relief because he was deprived of his Sixth Amendment right to the effective assistance of counsel. Specificaly, Petitioner argues that trial counsel erred in (1) failing to move to redact Branscum's statement to police; (2) failing to request a contemporaneous limiting instruction; and (3) failing to impeach Branscum with a prior felony conviction.
There exists clearly established Supreme Court precedent governing ineffective assistance of counsel claims. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a habeas corpus petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires a showing that counsel made errors so serious that counsel was not fi.inctioning 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 conc]ude 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).
The last state court to issue a reasoned opinion regarding Petitioner's ineffective assistance of counsel claim, the Michigan Court of Appeals, held as follows:
Defendant Cojocar argues that his trial counsel's performance denied him effective assistance of counsel. In particular, defendant argues that counsel was ineffective in failing to move to redact Branscum's statement to police or to request a contemporaneous limiting instruction, and by failing to impeach Branscum with evidence of a prior breaking and entering conviction. We disagree.
To establish ineffective assistance of counsel, a defendant must show that his trial counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him a fair trial. . . . To find prejudice, this Court must conclude that there is a reasonable probability that, absent the errors, the outcome of the proceeding would have been different. . . .
Defendant Cojocar has not shown that his counsel made errors so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment, nor has he shown any resulting prejudice to the defense. The evidence against Cojocar was overwhelming. The weapon used to shoot the victim belonged to Cojocar, and evidence indicated that he planned the robbery. Cojocar's second statement to police established that he approached the victim's door with a pizza box and a loaded gun, and the gun accidentally discharged when the victim opened the door. This assertion is contradicted by testimony that the screen door was locked and by physical evidence indicating that the bullet passed through the closed door. Moreover, even if Cojocar's
statement is believed, the evidence still shows that he intended to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result when he pointed a loaded weapon at the victim. This was sufficient to prove the intent element of felony murder. . . . Therefore, defendant has not proven that he was denied the effective assistance of counsel.People v. Cojocar, slip op. at 4-5.
Although not specifically citing the United States Supreme Court's decision in Strickland, the Michigan Court of Appeals applied the correct standard in analyzing Petitioner's ineffective assistance of counsel claims. In addition, Petitioner has failed to establish that the Michigan Court of Appeals decision was an unreasonable application of Supreme Court precedent. Petitioner disagrees with the state court's determination that he suffered no prejudice from his attorney's actions. However, beyond simple disagreement with the state court's ruling, Petitioner provides no compelling support for his argument and fails to contradict the state court's finding that overwhelming evidence of Petitioner's guilt was presented at trial. Accordingly, Petitioner has failed to establish that the Michigan Court of Appeals decision was contrary to or an unreasonable application of Supreme Court precedent.
D. Petitioner's Motions for Severance, for a Separate Jury, or for Mistrial
Finally, Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in denying his motions for severance, for a separate jury, or for a mistrial. He argues that co-defendant Branscum's defense was antagonistic to his own defense of accident.
The Sixth Circuit Court of Appeals has held that "while a claim of due process violation based on antagonistic defenses between jointly tried defendants is cognizable in habeas corpus, in order to prevail, a petitioner must show both an abuse of discretion and prejudice from denial of a severance motion." Jenkins v. Bordenkicher, 611 F.2d 162, 168 (6th Cir. 1979). "To find prejudice sufficient to require habeas corpus relief where it is not claimed that a joint trial resulted in the deprivation of a specific constitutional guarantee such as the right to call witnesses . . . or the right to confrontation. . ., we must determine from the entire record that the fundamental right to a fair trial as secured by the Fourteenth Amendment has been abridged." Id. Antagonistic defenses exist "when one person's claim of innocence is predicated solely on the guilt of a co-defendant." U.S. v.Harris, 9 F.3d 493, 501 (6th Cir. 1993), citing U.S. v. Crawford, 581 F.2d 489 (5th Cir. 1978).
The Michigan Court of Appeals held that the trial court did not err in denying Petitioner's motions for separate trial, separate jury, or a mistrial:
Defendant Cojocar argues that the trial court erred by denying his motions for separate trial, separate jury, or a mistrial. We find that the trial court did not abuse its discretion by denying these motions. Review of the trial record shows that Cojocar's and codefendant Branscum's defenses were not mutually exclusive or irreconcilable. . . . Therefore, separate trials or juries were not required.People v. Cojocar, slip op. at 5.
Petitioner has not established that the state court's determination that the defenses were not antagonistic was contrary to or an unreasonable application of Supreme Court precedent. In addition to arguing that the defenses were antagonistic, Petitioner argues that the trials should have been severed because co-defendant Branscum's statements to police implicated Petitioner. The simple fact that Branscurn's statements implicated Petitioner does not require a separate trial. In Bruton v. U.S., 391 U.S. 123, 135-36 (1968), the Supreme Court held that a defendant is deprived of his Sixth Amendment right of confrontation when a non-testifying co-defendant's facially incriminating statement is introduced at their joint trial, even when the jury is instructed to consider the statement only against the co-defendant. In the pending case, Branscum testified in his own defense at the joint trial. Thus, Petitioner had an opportunity to cross — examine Branscum, thereby eliminating the potential for a Bruton violation.
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim. 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.