Opinion
No. 01-73407.
May 30, 2002.
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND SETTING DEADLINE FOR RESPONSIVE PLEADING
I. Introduction
Petitioner Michael A. Danforth, a state inmate currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus.
II. Procedural History
Following a jury trial in Genesee County Circuit Court, Petitioner was convicted of second-degree murder. He was sentenced to life imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Appellant's conviction must be reversed where the defendant's right to due process has been violated due to the state's failure to disclose exculpatory evidence to the defendant.
II. Appellant must receive a new trial where the res gestae statute was violated the prosecutor failed to call a witness that informed police that he was at the scene of the crime and did not see defendant there.
Petitioner then filed a motion to amend grounds for appeal, which was granted, and added the following grounds:
I. Appellant was denied the effective assistance of trial counsel, where counsel has failed to investigate, and compel the attendance of alibi witnesses at trial, resulting in a breakdown of the adversary process, and a fair trial assigned by the United States Constitutional Amendments VI, XIV. Also Michigan Constitution 1963, Art. I, § 20.
A. Counsel was ineffective by failing to uphold defendant's right to testify in his defense, and his own words. Counsel failed to challenge the court's erroneous hearsay ruling, which ruled defendant's testimony inadmissible concerning statements made during the course of the conspiracy.
B. Counsel was ineffective in his failing to object to the introduction of irrelevant, and highly prejudicial evidence of a handgun unconnected to the defendant or the crime.
C. Counsel failed to challenge the admissibility of gruesome and highly prejudicial photographs, where alternative proofs were sufficient in determining the cause of death.
D. Counsel failed to utilize the prior criminal record of government witness Bowles as a substantial impeachment tool.
E. Counsel was ineffective by not asserting defendant's alibi by way of requesting appropriate instructions to the jury.
F. Counsel was ineffective for failing to investigate information given to him by previous counsel, and thereby depriving defendant of testimony supporting his alibi defense.
G. The combined effect of counsel's specific errors prejudice the defense position requiring reversal of defendant's conviction.
II. The trial court abused its discretion by ruling that defendant's version of what was stated during the course of the conspiracy inadmissible hearsay. Thereby excluding a material portion of his testimony, and impeding his ability to rebut the charges, and present a defense assigned by defendant's right to testify, and defen[d], himself, United States Constitution, Amendments V, VI, XIV. Michigan Constitution 1963, Art. 1 §§ 17, 20. M.R.E. 801(d)(2)(E).
III. The prosecutor improperly intimidated witness Larry Lige, who after admonishment from the prosecutor that his testimony would be incriminating, and that he would obtain charges as a result, refused to testify. Thereby, denying defendant the benefit of his favorable testimony, and a fair trial assigned by U.S.C. Amendments, VI, XIV. and Michigan Constitution 1963, Art. 1, § 20. MCL 763.1.
IV. The trial court erroneously admitted to the jury irrelevant and highly prejudicial evidence of a handgun, without meeting the foundational requirements necessary for admission, and subsequent testimony regarding a similar, or possibly the same handgun, has led to confusion of the issues, and has confused and mislead the jury, and erroneously allowed them to make inferences that the evidence was connected to the defendant, and the crime. Thereby denying him a fair trial, and due process assigned by U.S.C. Amendments V, XIV. and Michigan Constitution 1963, Art. 1, § 17. MCLA 768.29.
V. The trial court reversibly errrd by admitting highly prejudicial, and gruesome color photographs of the decedent taken at the scene and morgue. The court failed to establish their relevance, where alternative proof was sufficient to describe the nature and extent of the injuries causing death; they were neither substantially necessary nor instructive to show material facts or conditions, and their admittance prejudiced the defendant by inflaming the jury's passions due to the highly gruesome and graphic nature; thereby denying due process and a fair trial. U.S.C. Amendments V, XIV. And Michigan Constitution 1963, Art. 1, § 17.
VI. The prosecutor impermissibly encourage testimony from witness John Roberts that he had taken a polygraph examination, and the witness attributed the results of the test to the reason he was released from jail, and the charges were dropped. Then compounding the error by stating to the jury the government was ready to reveal the results. Thus implying the witness had passed the test bolstering his credibility, and prejudicing the defendant denying him a fair trial, and due process assigned by U.S.C. Amendment V, XIV. And Michigan Constitution 1963 Art. 1, § 17.
A. The trial court erred in denying defendant's motion for mistrial, after finding a more appropriate corrective instruction to the jury was necessary the court failed to address the error, and defendant's position.
VII. Defendant's right to be secure from unreasonable searches, and seizures was violated where Flint Police Department searched his home without a warrant, consent or probable cause required under both the United States Constitution Amendment W. and Michigan Constitution 1963, Art. 1, § 11.
The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Danforth, No. 203619 (Mich.Ct.App. Feb. 4, 2000).
Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the following claims:
I. When ruling on defendant's claim of ineffective assistance of trial counsel, the Court of Appeals failed to conduct a de novo review of the record; and as a result adopted erroneous findings of fact made by the trial court, causing the court to make erroneous find[ings] of fact on matters central to the claim; thus failing to address and make determinations respecting trial counsel's multiple errors; resulting in an unreasonable application of clearly established United States Supreme Court precedent.
II. The Court of Appeals has failed to conduct a de novo review of the record, and thereby the court's opinion was premised on erroneous findings of fact and conclusions of law in reaching its decision on defendant's claims based on ineffective assistance of trial counsel; thereby reaching a decision based on an unreasonable determination of the facts in light of the evidence presented and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. United States Constitutional Amendments, VI, and XIV.
A. Defendant counsel failed to adequately investigate and produce both alibi and corroborating alibi witnesses at trial, as well as rebuttal witnesses to refute prosecutorial witnesses on consequential facts central to the case.
B. Defendant was deprived of a substantial defense and an appropriate alibi instruction in support thereof.
C. Counsel has failed to advocate his client's case by challenging the admissibility of defense testimony; the trial court's erroneous hearsay ruling excluded defense testimony of weighty interest to his defense, offered to rebut the prosecution's case.
D. Trial counsel is ineffective by failing to discover and produce at trial the prior criminal records of prosecution witness Travis Bowles for impeachment with a criminal history of theft and dishonesty.
E. Defendant demonstrates that the cumulative effect of counsel's individual acts or omissions was substantial enough to meet Strickland test.
III. Defendant was denied the effective assistance of appellate counsel on appeal, and at the state court hearing, where as here, counsel has failed to exercise the skill and diligence expected of a reasonably competent attorney under the circumstances, as provided by the United States Constitutional Amendments VI, XIV; Michigan Constitution of 1963, Art. 1, § 20.
IV. The Court of Appeals has failed to adjudicate on the merits defendant's claim of reversible error by virtue of material portions of his defense testimony were excluded due to an adverse hearsay ruling by the trial court; where as the decision of the court indicates that it has misconceived the claim to be that witness Bowles and Roberts testimony based on the same incident was not properly excluded.
V. The Court of Appeals has erroneously held that the prosecutor did not violate his due process right not to be impeached with failure to offer exculpatory testimony after post-arrest post-Miranda warnings; therefore the decision was contrary to and an unreasonable application of clearly established United States Supreme Court precedent. United States Constitutional Amendments V XIV.
VI. The Court of Appeals has erroneously decided that witness Larry Lige decided not to testify because of being advised of Fifth Amendment privileges, instead of being informed that he would incur charges because of his incriminating testimony; however the record clearly establishes that Mr. Lige decided not to testify because he was told his testimony would cause him to receive criminal charges because of his activity, not because he was informed of his rights. Contrary to defendant's due process right to favorable testimony and a fair trial. United States Constitutional Amendments VI XIV.
The Michigan Supreme Court denied leave to appeal. People v. Danforth, No. 116588 (Mich. Aug. 22, 2000).
Thereafter, Petitioner filed the pending petition for a writ of habeas corpus presenting the following claims:
I. Petitioner's conviction was obtained in violation of the United States Constitution, Amendments VI, and XIV, by virtue of the ineffective assistance of trial counsel.
A. Allegations of error
i. Defense counsel failed to adequately investigate and produce alibi, corroborating alibi, and rebuttal witnesses during trial.
ii. Defense counsel's performance deprived Petitioner of a substantial alibi defense and supporting jury instructions.
iii. Defense counsel's failure to argue the admissibility of defense testimony deprived Petitioner of a fair and impartial trial where the trial court erroneously prohibited defense testimony offered to rebut the state's case.
iv. Defense counsel's failure to produce and impeach state witness Travis Bowles with his prior criminal record deprived Petitioner of the means to challenge the witness' credibility and expose possible bias or motivation to testify.
v. Defense counsel's failure to object to prosecutorial misconduct deprived Petitioner of a fair and impartial trial, where the prosecutor made repeated reference to Petitioner's failure to offer exculpatory statements during post-Miranda interrogation.
vi. The cumulative effect of defense counsel's errors when viewed under the totality of the circumstances deprived Petitioner a fair and impartial trial.
II. Petitioner's appeal of right was affirmed in violation of the United States Constitution, Amendments VI, and XIV, by virtue of the ineffective representation of appellate counsel.
III. Petitioner's conviction was obtained in violation of the United States Constitution, Amendments VI and XIV, where the trial court unfairly imposed hearsay restrictions upon critical defense testimony.
IV. Petitioner's conviction was obtained in violation of the United States Constitution, Amendments V, and XIV, where the prosecution made numerous impermissible references to his post-arrest, post-Miranda silence.III. Analysis
Respondent claims that the pending petition should be dismissed because Petitioner has failed to exhaust his state court remedies with respect to his claim that trial counsel was ineffective for failing to object to the prosecutor's references to Petitioner's post-arrest, post Miranda silence, as required by 28 U.S.C. § 2254(b)(1). 28 U.S.C. § 2254, provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus . . . shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
* * * *
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Thus, a Michigan prisoner challenging his confinement by way of a habeas corpus petition in this Court must first exhaust all available remedies in the courts of the state wherein he was convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). 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). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). If a petition contains both exhausted and unexhausted claims, it must be dismissed so that the petitioner can exhaust all claims before seeking federal habeas relief. Rose v. Lundy, 455 U.S. 509 (1982); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Respondent argues that the petition should be dismissed because Petitioner has not exhausted the claim that his attorney was ineffective in failing to object to the prosecutor's references to his post-arrest, post-Miranda silence. Petitioner presented this claim to the Michigan Court of Appeals within the section addressing his claim of prosecutorial misconduct. While the argument in support of this claim was brief, it provided the Michigan Court of Appeals a full and fair opportunity to review the claim. Similarly, Petitioner's presentation of the claim to the Michigan Supreme Court was brief and a bit confusing, but it provided the Michigan Supreme Court an opportunity to pass upon the constitutional claim. The fact that neither the Michigan Court of Appeals, nor the Michigan Supreme Court addressed the claim does not preclude a finding of exhaustion. Harris v. Rees, 794 F.2d 1168, 1173 (6th Cir. 1986).
The Court finds that the courts of Michigan did have a full and fair opportunity to review Petitioner's claim. Therefore, the Court shall deny the motion to dismiss and require Respondent to file an answer addressing the merits of the habeas corpus petition.
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that Respondent file an answer addressing the merits of the habeas corpus petition within TWENTY-ONE DAYS from the date Order.