Opinion
Civil No. 00-CV-70392-DT
January 10, 2001
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Norman Crawford, a state prisoner presently confined at the Cotton Correctional Facility in Detroit, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of solicitation of murder following a jury trial in the Oakland County Circuit Court in 1996. He subsequently pleaded guilty to being a fourth habitual offender and was sentenced to 15-30 years imprisonment. In his habeas petition, Petitioner raises claims challenging the timeliness of his trial, the effectiveness of trial counsel, the sufficiency of the evidence, the jury instructions, and the cross-examination of a prosecution witness. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. Factual Background
Petitioner's conviction stems from his solicitation of murder of a witness who was scheduled to testify at Petitioner's trial on embezzlement charges in Oakland County, Michigan in 1995. The Michigan Court of Appeals described the relevant facts as follows:
In June 1995, defendant was residing in the Oakland County Jail awaiting trial on embezzlement charges. Ameer Ross, another Oakland County Jail inmate, testified at trial that defendant approached him and asked if he knew someone who could kill a witness in his upcoming trial on embezzlement charges. Ross testified the defendant gave him the witness' name and address on a piece of paper. Ross and defendant discussed a price for the murder. After some negotiating, Ross reduce the initial price of $6,000 for the murder to $2,000 with a $500 down payment. Ross testified that defendant agreed to this price and stated that his uncle would pay the money. Although Ross advised defendant that he would contact his brother about killing the witness, Ross instead contacted the sheriff. Defendant denied at trial that he had made this inquiry, alleging that he had discussed bribing the witness, not murdering him.
The sheriff's department arranged to have Deputy Andre Ewing pose as Ross' brother and visit defendant in jail to discuss the murder. Ewing testified that defendant told him that he wanted someone "offed." When Ewing asked him what he meant, defendant stated, "I want him taken out." Defendant and Ewing then negotiated a price of $2,000 for the murder. Ewing testified that defendant agreed to deposit $200 in Ross' account by 6:00 p.m. that night, and to pay $1,800 the next day after the job's completion. Ewing recalled that he asked defendant twice whether he was sure he wanted the murder done and that defendant replied affirmatively both times. Although defendant testified that he had only discussed bribing the witness, Ewing testified that bribery never entered the conversation.
Defendant never transferred any money to Ross' account, and the witness whom defendant wanted "offed" appeared at defendant's embezzlement trial and testified against him. On August 11, 1995, defendant was both sentenced for the embezzlement conviction and charged with solicitation of murder.People v. Crawford, 232 Mich. App. 608, 611-12, 591 N.W.2d 669 (1998). II Procedural History
Following his conviction and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, asserting that: (1) the trial court erred in denying his motion to dismiss for violation of Michigan's 180-day rule, (2) trial counsel was ineffective for stipulating to an erroneous date for the commencement of the 180-day period, (3) the trial court erred in denying his motion for directed verdict because the prosecution failed to establish all of the elements of solicitation of murder and he proved the affirmative defense of renunciation, (4) the trial court erred by denying his request to instruct the jury on the affirmative defense of renunciation, (5) the triai court erred by denying the jury's request for the trial transcript, (6) the trial court erred in limiting cross — examination of Ross regarding the charges and penalties Ross was facing and the timing of Ross' discussions with deputies, and (7) his sentence was excessive and disproportionate. The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Crawford, 232 Mich. App. 608, 591 N.W.2d 669 (1998). Petitioner's motion for rehearing was denied.
Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims, which was denied. People v. Crawford, ___ Mich. ___, 602 N.W.2d 387 (1999).
Petitioner filed the present petition for a writ of habeas corpus on February 15, 2000, asserting the same claims, absent the transcript and sentencing claims, presented to the Michigan appellate courts on direct review. Respondent filed an answer to the petition on September 11, 2000, asserting that Petitioner's claims should be dismissed as non-cognizable and/or for lack of merit.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (1996).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court ofthe United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court amves at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id.. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id.at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id.at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly. § 2254(e) (lj requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clearand convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). cert. denied
___ U.S.___, 119 S.Ct. 2403 (1999).
IV. Analysis
A. 180-Day Rule Claim
Petitioner first claims that he is entitled to habeas relief because the trial court erred in denying his motion to dismiss based upon an alleged violation of Michigan's 180-day rule. Petitioner is not entitled to habeas relief on this claim for several reasons. First, a violation by state officials of a state speedy trial law, taken alone, does not present a federal claim reviewable in a habeas petition. Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994). A state statute has no bearing upon whether a state has violated a petitioner's federal constitutional right to a speedy trial as protected by the Sixth Amendment. Stewart v. Nix, 972 F.2d 967, 970 (8th Cir. 1992). Federal consideration of a claim that a state has violated its own speedy trial rules is limited to a determination of whether the state's action has violated a petitioner's [federal] constitutional right to a speedy trial or due process. Flenoy v. Russell, 902 F.2d 33, 1990 WL 61114, * 3 (6th Cir. May 8, 1990) ( citing Millard v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987)).
Petitioner's contention that the State of Michigan violated its 180-day rule does not entitle him to relief. The United States Court of Appeals for the Third Circuit rejected a similar claim when it ruled that Pennsylvania's 180-day rule does not define the contours of the federal constitutional right to a speedy trial. Wells v. Petsock, 941 F.2d 253, 256 (3rd Cir. 1991). Michigan's 180-day rule likewise does not define the contours of the federal constitutional right to a speedy trial and the violation of this rule alone would not entitle Petitioner to federal habeas relief
Second, to the extent that Petitioner's claim could be construed as a Sixth Amendment speedy trial claim, it must also be rejected. Petitioner has failed to demonstrate that the delay from when he was charged until he was brought to trial on the solicitation of murder charge violated his Sixth Amendment right to a speedy trial. He has not established any improper reason for the delay, has not alleged that he asserted his right to a speedy trial, and, most importantly, has not shown that he was materially prejudiced because of the delay. See, e.g., Wallace v. Lockhart, 701 F.2d 719, 729 (8th Cir. 1983).
Third, the Michigan Court of Appeals concluded, and this Court agrees, that the 180-day rule was not violated in Petitioner's case. As fully discussed by the Court of Appeals, less than 180 days of the delay before Petitioner's trial on the solicitation of murder charge was attributable to the prosecution. Crawford, 232 Mich. App. at 612-15. Petitioner is thus not entitled to habeas relief on this claim.
B. Ineffective Assistance of Counsel Claim
Petitioner also contends that he is entitled to habeas relief because defense counsel was ineffective in stipulating to an erroneous start date for the commencement of the 180-day speedy trial period. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel 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 officient performance. Id.. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id.. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id.. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced ajust result." Id.. at 1311-12 (quoting Strickland, 466 U.S. at 686).
In this case, the Michigan Court of Appeals found that while counsel was deficient for stipulating to an erroneous start date for purposes of the 180-day rule, Petitioner was not prejudiced by counsel's conduct because the 180-day rule was not violated. Crawford, 232 Mich. App. at 615. The Michigan Court of Appeals' decision is consistent with the principles set forth in Strickland and constitutes a reasonable application thereof. Petitioner cannot establish that he was prejudiced by counsel's performance because the 180-day rule was not violated as a matter of state law. When a speedy trial motion would have been unsuccessfial, trial counsel's failure to make the motion does not constitute ineffective assistance. See Boyd v. Hawk, 965 F. Supp. 443, 450 (S.D.N.Y. 1997). Because Petitioner has not shown that his 180-day rule claim had merit, he cannot show that counsel was ineffective for failing to raise it. Petitioner is not entitled to habeas relief on this claim.
C. Insufficient Evidence Claim
Petitioner next claims that he is entitled to habeas relief because the prosecution failed to present sufficient evidence to support his solicitation of murder conviction and because he established the affirmative defense of renunciation. In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, Huynh v. King, 95 F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995), this Court must determine whether the state court's application of the Jackson standard was reasonable.
In concluding that sufficient evidence was presented to support Petitioner's conviction, the Michigan Court of Appeals stated in part:
Pursuant to MCL § 750.157b(1); MSA 28.354(2)(1), "`solicit' means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation." Solicitation to commit murder is a specific intent crime that requires proof that the defendant intended that a murder would in fact be committed. People v. Vandelinder, 192 Mich App 447, 450, 481 NW2d 787 (1992). Solicitation to commit murder occurs when (1) the solicitor purposely seeks to have someone killed and (2) tries to engage someone to do the killing. Id. Solicitation is complete when the solicitation is made. Id. A contingency in the plan may affect whether the victim will be murdered, but does not change the solicitor's intent that the victim be murdered. Id. at 450-451. Actual incitement is not necessary for conviction. People v. Salazar, 140 Mich App 137, 143, 362 NW2d 913 (1985) (a defenaant who attempted to incite an undercover police officer to commit murder could not escape conviction merely because the officer would not actually kill someone).
Defendant argues that the prosecutor did not establish that defendant promised or offered to pay for a murder. The prosecutor presented testimony from Ross and Ewing that defendant stated his desire to have a witness in his embezzlement trial killed and that he was willing to pay $2,000 for the murder. According to Ewing, defendant explained that he wanted Ewing to "off" or "take out" the potential witness against him, and that he would pay Ewing $2,000. We find that this testimony was sufficient to support a rational juror's conclusion that defendant purposely sought to have a witness in his embezzlement trial killed and engaged Ewing to do the killing.Crawford, 232 Mich. App. at 616-17.
Having reviewed the record, this Court finds that the Michigan Court of Appeals' determination in this regard is consistent with federal law and constitutes a reasonable application of that law. The Court of Appeals reasonably concluded that there was sufficient evidence to establish Petitioner's guilt of solicitation of murder given the testimony of Ameer Ross and Deputy Ewing. Those witnesses established that Petitioner wanted to have a witness in his embezzlement trial killed, that he was willing to pay for the murder, and that he engaged or attempted to engage a person he believed would carry out his plan. To the extent that Petitioner's insufficient evidence claim challenges the credibility of the testimony presented at trial, it does not warrant relief. It is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). Petitioner is not entitled to relief on this claim.
Petitioner relatedly contends that he is entitled to habeas relief because he proved the affirmative defense of renunciation. This claim is without merit. Under Michigan law, renunciation is an affinnative defense. See Mich. Comp. Laws § 750.1 57b(4). "The due process guarantee of sufficiency of the evidence extends only to facts needed to establish the elements of the crime and not to the state's burden to prove the absence of an affirmative defense. See Allen v. Redman, 858 F.2d 1194, 1196-98 (6th Cir. 1988); see also Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999) (holding that Jackson "does not implicate affirmative defenses, because proof of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime"). Given that lack of renunciation is not an element of the crime of solicitation of murder, habeas corpus review on this issue is precluded.
Furthermore, the Michigan Court of Appeals concluded that Petitioner did not establish the affirmative defense of renunciation as a matter of state law. See Crawford, 232 Mich. App. at 61719. State court interpretations of state law generally bind the federal reviewing court. See Gall v. Parker, Nos. 91-5502, 94-6376, 2000 WL 1616079, *8 (6th Cir. Oct. 30, 2000) (citing Caldwell, 181 F.3d at 735-36). Considering the evidence presented at trial, this Court concludes that a reasonable factfinder could conclude that the prosecution established the elements of solicitation of murder beyond a reasonable doubt — and that Petitioner failed to establish the affirmative defense of renunciation. Petitioner is not entitled to habeas relief on this claim.
D. Jury Instruction Claim
Petitioner next claims that he is entitled to habeas relief because the trial court failed to instruct the jury on the affirmative defense of renunciation. In order for habeas relief to be warranted on the basis of improper jury instructions, a petitioner must show that the challenged instructions were so infirm that they rendered the trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The question in such a collateral proceeding is whether the ailing instructions so infected the entire trial that the resulting conviction violates due process, not merely whether the instructions are undesirable, erroneous, or universally condemned. Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cuppv. Naughten, 414 U.S. 141, 146-47 (1973)). Ajury instruction is not to be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial court record. Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996).
Under Michigan law, a criminal defendant may establish the affirmative defense of renunciation with evidence that he has voluntarily and completely renounced his criminal purpose by notifying the solicited person of his renunciation and by either giving a timely warning and cooperation to law enforcement officials or making a substantial effort to prevent the performance of the solicited criminal act. See Mich. Comp. Laws § 750.1 57b(4). In this case, the Michigan Court of Appeals rejected Petitioner's jury instruction claim, stating:
We review jury instructions in their entirety to determine whether the trial court committed error requiring reversal. People v. Piper, 223 Mich App 642, 648, 567 NW2d 483 (1997). A court must instruct the jury so that it may correctly and intelligently decide the case. People v. Clark, 453 Mich 572, 583, 556 NW2d 820 (1996). Jury instructions must include all the elements of the charged offense and must not exclude material issues, defenses, and theories that are supported by the evidence. Piper, supra. A defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense. People v. Lemons, 454 Mich 234, 248, 562 NW2d 447 (1997). In the instant case, defendant failed to present a prima facie defense of renunciation. Because defendant failed to present evidence regarding all elements of the affirmative defense of renunciation, the trial court correctly denied the requested instruction. Id.. at 250.Crawford, 232 Mich. App. at 619-20.
This Court agrees that Petitioner was not entitled to receive the renunciation instruction as a matter of state law. As noted by the Michigan Court of Appeals, Petitioner presented no evidence of an attempt to timely warn and cooperate with law enforcement officials or any substantial effort to stop the solicited murder from occurring. See Crawford, 232 Mich. App. at 619. Even assuming that the Michigan Court of Appeals erred as a matter of state law, Petitioner is not entitled to relief from this Court. Petitioner has not shown that the trial court's failure to give the requested instruction resulted in a denial of due process. The trial court properly instructed the jury as to the elements of the charged offense. Petitioner is thus not entitled to habeas relief on this claim.
E. Cross-Examination of Witness Claim
Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court improperly limited defense counsel's cross-examination of Ameer Ross. The Confrontation Clause ofthe Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1973). "Cross examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness," Id.. at 314. The right of cross-examination, however, is not absolute. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things. harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. VanArsdall, 475 U.S. 673, 679 (1986); see also Norris v. Schotten, 146 F.3d 314, 329-30 (6th Cir. 1998).
The Michigan Court of Appeals considered this claim and concluded that any alleged error was harmless, stating:
The trial court did not prevent defendant from eliciting Ross' criminal background. The court sustainea the prosecutor's objection to an inquiry by defense counsel regarding Ross' status as a fourth-offense habitual offender. Before this objection, the defense had established that Ross was in the Oakland County Jail in June 1995 awaiting sentencing after pleading guilty to a charge of larceny by conversion, that he had pleaded guilty of being a fourth-offense habitual offender, and that he was residing in jail at the time of defendant's solicitation trial. Immediately after the court had sustained the prosecutor's objection, defense counsel went on to establish that Ross had received a one-year sentence and had been granted work release. Defense counsel further inquired whether Ross had been promised anything in exchange for his testimony against defendant, to which Ross responded negatively, and questioned Ross regarding a previous situation in which Ross had testified against someone accused of solicitation of murder. We conclude that any alleged error in the trial court's precluding defendant's inquiry regarding Ross' a fourth-offense habitual offender status was harmless in light of defendant's extensive cross-examination.
We find no error requiring reversal in the trial court's sustaining the prosecutor's objection to certain questions regarding Ross' delay in reporting the alleged solicitation. Before the objection, defendant was able to elicit through extensive questioning that Ross was unsure about the timing of the events. Any alleged error would again have been harmless given defendant's extensive cross-examination establishing Ross' uncertainty regarding the sequence of events.Crawford, 232 Mich. App. at 620-21.
This Court finds that the state court's determination is consistent with federal law and constitutes a reasonable application of that law. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999) (harmless error standard announced in Brecht applies even if a federal habeas court is the first to review for harmless error); see also 0'Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had substantial and injurious effect or influence upon the jury's verdict).
In this case, defense counsel was allowed to extensively cross-examine Arneer Ross concerning matters relevanL to the crime charged. The jury was made aware of Ross' criminal background, any potential bias or motive for testifying falsely, and his uncertainty about the timing of events surrounding the murder solicitation. Thus, even if the trial court erred in limiting defense counsel's cross-examination, any such error was harmless under the standard set forth in Brecht. Petitioner is not entitled to habeas relief 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. Accordingly;
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.