Opinion
CIVIL ACTION NO. 00-CV-70460-DT.
August 8, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Milton Cunningham, a state prisoner currently in custody at the Macomb Correctional Facility in New Haven, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. Petitioner was convicted of armed robbery following a jury trial in the Macomb County Circuit Court in 1991. He was sentenced to 20 to 40 years imprisonment. In his pleadings, Petitioner raises claims concerning the prosecutor's conduct and the effectiveness of trial and appellate counsel. For the reasons set forth below, the petition for a writ of habeas corpus is denied.
I. Background Facts
The Michigan Court of Appeals set forth the facts in this case, in part, as follows:
The victim, an employee at Mike's Shell Station on Van Dyke in Warren, testified that defendant and codefendant Robinson . . . entered the gas station at 3:45 a.m. on August 15, 1990, pulled out their weapons and robbed him. He unhesitatingly identified both perpetrators at the examination.
Officer Bechull was then called, principally to identify the driver of the getaway car, DeShon Mitchell. . . . Lie learned via radio report that the two black male robbers had departed on foot from the gas station. Immediately thereafter, he observed two black males in a car traveling south on Memphis, a residential street near the gas station. The vehicle turned west onto Eight Mile Road. The officer then attempted to effect a stop. The car slowed. But it sped up and the officer gave chase. During the chase, the car doors were opened and shut several times. The car crashed into a home and the occupants of the car fled on foot. Officer Bechill was, however, able to arrest the driver. He saw, in plain view, a revolver, sawed off shot gun and money lying on the floor of the car.People v. Cunningham, No. 146462 (Mich.Ct.App. March 13, 1995) (unpublished).
II. Procedural History
Following his conviction and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, raising the following claims through counsel and in pro per:
I. Objects seized from the getaway ear should have been suppressed as the fruit of an illegal stop.
II. The trial court omitted intent from its jury instruction on aiding and abetting.
III. He was deprived of ineffective assistance of trial counsel.
IV. The prosecutor introduced irrelevant, inadmissible evidence.
V. The prosecutor's behavior denied him due process.
VI. The trail court failed to put the cost to taxpayers of his sentencing on the record.
The Court of Appeals affirmed Petitioner's conviction and sentence. People v. Cunningham, No. 146462 (Mich.Ct.App. March 13, 1995) (unpublished). Petitioner then filed a motion for rehearing with the Michigan Court of Appeals. The court retracted its discussion relating to felony firearm, but denied the motion for rehearing. People v. Cunningham, No. 146462 (Mich.Ct.App. June 9, 1995). Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Cunningham, No. 103496 (Mich. May 14, 1996).
On March 14, 1997, Petitioner filed a motion for relief from judgment with the trial court, which was denied on the record on April 7, 1997, and in an order dated April 29, 1997. See Petition, pp. 6-7. Petitioner filed an application for leave to appeal this decision with the Michigan Court of Appeals, which was dismissed for failure to pursue the case in conformity with the court rules. People v. Cunningham, No. 202481 (Mich.Ct.App. Aug. 27, 1997). Petitioner's motion for rehearing was also denied. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Cunningham, No. 209659 (Mich.Ct.App. Aug. 5, 1998). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Cunningham, No. 112848 (Mich. March 30, 1999).
On February 14, 2000, Petitioner filed the present petition for a writ of habeas corpus. Respondent filed a motion to dismiss the habeas petition for failure to comply with the one-year statute of limitations, which this Court granted on January 23, 2001. On January 24, 2001, the Court received Petitioner's reply to Respondent's motion to dismiss. On February 2, 2001, in response to that reply, the Court vacated its prior dismissal order finding that the statute of limitations should be equitably tolled. Respondent filed an answer to the petition on March 6, 2001, asserting that it should be denied based upon procedural default 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 AFDPA 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|
(I) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (1996).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 411. "Under § 2254(d)(l)'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 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
Lastly, this Court must presume that state court factual determinations are correct, 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis A. Procedural Default
Respondent asserts that Petitioner's claims are barred by procedural default. Federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwrighi v. Sykes, 433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). A petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. Wainwrigh, 433 U.S. at 85; Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Supreme Court relied upon Michigan Court Rule 6.508(D) in denying Petitioner's application for leave to appeal. That rule provides, in part, that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom. See Mich. Ct. R. 6.508(D). The state court's decision, while brief, was based upon an independent and adequate state procedural rule. See Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). Although the Michigan Supreme Court did not fully explain its decision, this Court's review of the record indicates that Petitioner failed to raise his prosecutorial misconduct and ineffective assistance of counsel claims on direct appeal of his conviction, despite the opportunity to do so.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).
In this case, Petitioner asserts that appellate counsel was ineffective for failing to raise his habeas issues on direct appeal, which could constitute cause to excuse his procedural default. Even assuming that Petitioner can establish cause to excuse his default, however, he cannot demonstrate actual prejudice. As set forth below, each of Petitioner's defaulted claims lacks merit and does not warrant habeas relief
Moreover, Petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, $13 U.S. at 324. Petitioner has made no such showing in this case. Petitioner's habeas claims are thus barred by procedural default, are otherwise without merit (as discussed infra), and do not warrant relief
B. Prosecutorial Misconduct Claims
Petitioner claims that he is entitled to habeas relief because of prosecutorial misconduct. Specifically, Petitioner claims that the prosecutor: (1) deliberately referred to a co-defendant's alleged confession which was not admitted into evidence and was not admissible; (2) intimidated defense counsel by threatening to report counsel to the state bar; and (3) unconstitutionally commented on Petitioner's silence at trial by referencing uncontradicted testimony, which could only be contradicted by Petitioner.
The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a prosecutorial misconduct claim, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Factors to be considered in weighing the extent of a prosecutor's misconduct are:
the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.' Id. (citations omitted).
1. Reference to co-defendant's statement
Petitioner first claims that the prosecutor deliberately referred to a co-defendant's confession which was not admitted into evidence and was not admissible. The prosecutor referred to "the report or statement or confession of the defense" in his redirect examination of one of the police officers involved in Petitioner's arrest. See 8/1/91 Trial Tr., p. 364. The reference was made in response to defense counsel's earlier questions to the same police officer which suggested that the store clerk actually committed the robbery. Id. at 348-49. Defense counsel objected to the prosecutor's remark. Id. at 364. The prosecutor made no further references to a confession. As such, the prosecutor's comment concerning the co-defendant's statement was brief and isolated and did not permeate the entire trial. See Simpson, 238 F.3d at 409. Further, given the evidence presented at trial, particularly the testimony of the store clerk and the arresting officer, the Court concludes that the prosecutor's comment did not prejudice the defense. Petitioner is not entitled to relief on this claim.
2. State Bar threat
Petitioner next claims that the prosecutor intimidated defense counsel by threatening to report counsel to the State Bar of Michigan. This occurred while defense counsel was cross-examining a police officer concerning the possibility that the robbery was actually committed by the gas station attendant. The prosecutor said: "If this continues, your Honor, with counsel doing this, I might have to even cite a bar grievance against counsel." See 8/1/91 Trial Tr., p. 352. The prosecutor's comment was made when the jury was out of the courtroom. Id. at 350. Because this remark was isolated and did not occur within the hearing of the jury, it did not result in prejudice to Petitioner. He is thus not entitled to relief on this claim.
3. Comment on uncontradicted testimony
Lastly, Petitioner claims that the prosecutor improperly commented on his silence at trial by stating that certain testimony was uncontradicted when Petitioner was the only person who could contradict it. The prosecutor's exact words were:
Again, the Defendant's statement Defendant fled from the vehicle. Where was the Defendant? Defendant was in the right passenger or the right front seat of that car. What was in the right front seat of that car? The pistol, ladies and gentlemen. You've heard no explanation about that because there is no explanation about that.See 8/6/91 Trial Tr., p. 72. As an initial matter, the Court notes that it is not entirely clear that Petitioner was the only person who could provide an explanation about the firearm. But, even if this were the case, Michigan courts "generally have held that a prosecutor's remark that the evidence was uncontradicted or undisputed does not amount to improper comment on a defendant's failure to testify even though the defendant was the only person who could have provided contradictory testimony." People v. Guenther, 188 Mich. App. 174, 177; 469 N.W.2d 59, 61 (1991). Additionally, the prosecutor's statement was brief and did not directly refer to Petitioner's decision not to testify at trial. Further, even if improper, the comment does not rise to a level which resulted in a denial of due process. See Simpson, 238 F.3d at 409. Petitioner is not entitled to habeas relief on this claim.
C. Ineffective Assistance of Trial Counsel Claims
Petitioner claims that defense counsel was ineffective for failing to request ajury instruction on the lesser included offense of unarmed robbery, for failing to object to the "new theory of guilt" raised when the court instructed the jury on aiding and abetting, for failing to object to the incompleteness of that aiding and abetting instruction, and for failing to object to the alleged prosecutorial misconduct.
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 deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the United States Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
1. Failure to seek unarmed robbery instruction
Petitioner first claims that counsel was ineffective for failing to seek an instruction on the lesser included offense of unarmed robbery when the jury sought further instructions alter determining that Petitioner did not have a gun. The trial transcript shows, however, that defense counsel did in fact object to the instructions the court gave the jury at that time. Defense counsel objected that the instruction was "inconsistent with the theory and charge that has been brought against this Defendant." See 8/6/91 Trial Tr., p. 114. The question is whether this behavior "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Defense counsel's conduct can be seen as consistent with the defense strategy that the robbery was actually perpetrated by the gas station attendant. See 8/1/91 Trial Tr., pp. 345-52. This Court will not second-guess counsel's strategy in hindsight Counsel was not constitutionally deficient for failing to seek an instruction on the lesser included offense of unarmed robbery under the standard set forth in Strickland.
2. Failure to object to "new theory of guilt"
Petitioner next claims that counsel was ineffective for failing to object to the "new theory of guilt" presented to the jury when the trial court instructed the jury on aiding and abetting (the armed robbery). On this point, Petitioner is in error. Defense counsel did protest the "new theory of guilt" when the court gave the aiding and abetting instruction. Defense counsel stated:
Judge, if I may for the record, judge, the instruction [CJI 8:1:02] that you read, as a part of that instruction there is a provision that the Defendant is charged in the alternate-under alternate theories that he's charged with committing armed robbery or aiding and abetting the commission of an armed robbery. That instruction specifically addresses that. I'll point out to this court that this Defendant has never been charged under alternate theories, direct involvement versus aiding and abetting, and that instruction, against, is absolutely not on point in this particular case, and that it's an instruction that is inconsistent with the theory and charge that has been brought against this Defendant. He makes it real clear that there is alternate theories involved when you use that instruction. In other words, where a Defendant is charged in the case with armed robbery and alternatively with aiding and abetting, the commission of armed robbery, that is where that instruction is appropriate. I would ask that the court stop further deliberations at this point so that issue can be taken up on appeal immediately. Because honestly, Your Honor, if that instruction, I believe is not corrected, corrected in this case, then this Defendant should not have to be subjected to a verdict based upon an incorrect instruction.See 8/6/91 Trial Tr., pp. 114-15.
Furthermore, under Michigan law, one who procures, counsels, aids, or abets in the commission of an offense may be convicted and punished as if he directly committed the offense. Mich. Comp. Laws § 767.39; In re McDaniel, 186 Mich. App. 696, 697 (1991). Consequently, a Michigan criminal defendant may be charged as a principal but convicted as an aider and abettor without violating due process. People v. Turner, 213 Mich. App. 558, 568 (1995) (citing People v. Clark, 57 Mich. App. 339, 343-44 (1975)). The United States Court of Appeals for the Sixth Circuit has expressly acknowledged that a defendant may be indicted for the commission of a substantive crime as a principal offender and convicted of aiding and abetting its commission, although not named in the indictment as an aider and abettor, without violating federal due process. See Hill v. Perini, 788 F.2d 406, 407 (6th Cir. 1986) (citing Stone v. Wingo, 416 F.2d 857 (6th Cir. 1969)). Petitioner has thus failed to show that counsel's performance was deficient for allegedly failing to object to the instruction or that he was prejudiced by counsel's conduct.
3. Incom leteness of aiding and abetting instruction
Petitioner also claims that counsel was ineffective for failing to object to the incompleteness of the aiding and abetting instruction. However, the instruction given directly addressed the jury's inquiry, which was read as follows:
I received this message from the jury. For the first count, does Mr. Cunningham have to have a weapon in his possession or because he participated with another Defendant that was armed, can be guilty of armed robbery? Can be guilty of armed robbery, I assume you mean: Can he be guilty of armed robbery?See 8/6/91 Trial Tr., p. 113. As noted, defense counsel did object to the aiding and abetting instruction on other grounds in a manner consistent with the overall defense strategy. Further, the trial court sufficiently instructed the jury on aiding and abetting by stating:
In this case, the Defendant is charged with committing armed robbery or intentionally assisting someone else in committing it. Anyone who intentionally assists someone else in committing the crime is as guilty as the person who committed the crime, and is an aider and abettor. That's the instruction.Id. The trial court also fully instructed the jury on the burden of proof and the elements of the charged offense. Petitioner has failed to establish that counsel's performance was deficient in this regard or that his conduct prejudiced the defense. While not perfect, counsel's behavior "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
4. Failure to object to alleged prosecutorial misconduct
Lastly, Petitioner claims that trial counsel was ineffective for failing to object to the previously-discussed instances of alleged prosecutorial misconduct. Given this Court's determination that the prosecutor's conduct did not rise to the level of a due process violation, Petitioner cannot establish that defense counsel was deficient for failing to object to the disputed remarks or that he was prejudiced by counsel's conduct. Petitioner has thus failed to establish that trial counsel was ineffective and is not entitled to relief on this claim.
D. Ineffective Assistance of Anpellate Counsel Claim
Lastly, Petitioner claims that appellate counsel was ineffective for failing to raise the previously-discussed prosecutorial misconduct and ineffective assistance of trial counsel claims on direct appeal. Given this Court's determination that those claims are without merit, Petitioner cannot establish that appellate counsel was ineffective under the standard set forth in Strick1and, supra. Petitioner is thus not entitled to habeas relief on this claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to habeas relief on the claims presented. Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed.R.App.P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal district court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the mater, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed. In such a case, no appeal is warranted. Id.
For the reasons stated in this opinion, this Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right concerning his prosecutorial misconduct and ineffective assistance of counsel claims. Additionally, Petitioner has not shown that jurists of reason would find this Court's procedural ruling debatable. Accordingly, the Court DECLINES to issue a certificate of appealability or grant leave to proceed on appeal in forma pauperis. See Fed.R.App.P. 24(a).
IT IS SO ORDERED.