Opinion
Case Number: 01-73407
September 20, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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. Petitioner claims that his second-degree murder conviction was obtained in violation of his constitutional rights. For the reasons set forth below, the Court denies the petition.
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 when 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 erred 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 IV. 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. Petitioners 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. Petitioners 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. Facts
Petitioner's conviction arises out of the bludgeoning death of Lovell Roberts. Police officers, acting on a telephone tip from John Roberts (no relation to the victim), found Mr. Roberts' body, wrapped in a comforter, with a plastic bag pulled over the head, in a renovated school bus parked in the driveway of Tammy Sommerfield's home. Travis Bowles, Sommerfield's boyfriend, owned the school bus and lived with Sommerfield. Petitioner and John Roberts were both staying in the Sommerfield home around the time of the murder. The victim also lived at the Sommerfield home, from which he was permitted to sell drugs in return for paying Bowles in cash or drugs.Bowles testified that, late on the night of February 6, 1995, when he, John Roberts and Petitioner were in the basement of the Sommerfield home, he stated that he wanted to rob the victim. Bowles testified that Roberts suggested, in a joking manner, that they could suffocate the victim. Bowles testified that he went to bed. Sometime between midnight and 3:00 a.m., he was awakened by a thumping noise. He went into the living room where he found Petitioner hitting the victim about the head and upper body with a guitar. Bowles left the room. After about ten minutes, he was joined by Petitioner and Roberts. Petitioner, who had already moved the victim's body into the basement, divided up the victim's cash, drugs and food stamps among the three men. The body remained in the basement until three nights later, when Bowles and Cort Bates moved it into the school bus. Prior to trial, Bowles pleaded guilty to second-degree murder.
John Roberts testified that he saw Petitioner beat the victim with a guitar. He also testified that he saw Bowles place a bag over the victim's head. A couple of days later, Roberts borrowed Bowles car, and noticed a guitar in the trunk of the car. Roberts was involved in a traffic accident, and the car was impounded. Thereafter, Roberts telephoned police to inform them of the murder and the location of the probable murder weapon.
Petitioner testified in his own defense and denied any connection to the murder. He testified that, on the night in question, Bowles and Roberts had a conversation which troubled Petitioner. He testified that, because he did not want any part of the content of that conversation, he left the house and did not return until the following morning.
IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254 (d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254 (d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
28 U.S.C. § 2254 (e)(1) provides, in pertinent part:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "`unreasonable application'" clause when "a state — court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 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. Alleged Ineffective Assistance of Trial Counsel
Petitioner claims that he is entitled to habeas corpus relief because his trial attorney rendered ineffective assistance, thereby depriving Petitioner of his Sixth Amendment right to counsel. Specifically, Petitioner claims that his attorney was ineffective in: (1) failing to adequately investigate and produce alibi witnesses; (2) failing to request an alibi jury instruction; (3) failing to argue the admissibility of alleged co-conspirator hearsay statements; (4) failing to impeach defense witness Travis Bowles with his prior criminal record; and (5) failing to object to prosecutorial misconduct. In addition, Petitioner argues that the cumulative effect of these alleged errors deprived him of his right to a fair trial.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a 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 functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal citations omitted).
The Court further explained that, to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), cert. denied 520 U.S. 1257 (1997).
On direct appeal, the Michigan Court of Appeals remanded the case to the trial court for a hearing regarding Petitioner's ineffective assistance of counsel claims pursuant to People v. Ginther, 390 Mich. 436 (1973). Following remand, the Michigan Court of Appeals held that Petitioner failed to establish that his attorney, Kevin Rush, was ineffective. The Court will examine each of Petitioner's ineffective assistance of counsel claims in turn to determine whether the state court's resolution of them was contrary to or an unreasonable application of Supreme Court precedent.
1. Alibi Witnesses
First, the Michigan Court of Appeals held that Petitioner's attorney was not ineffective in failing to locate and present testimony from purported alibi witness William Aldred. The state court noted that Mr. Aldred had given conflicting accounts of his presence at the crime scene to the defense attorney who preceded Mr. Rush and to the police. The account he gave to Petitioner's first defense attorney placed him at the scene of the crime, but the account he gave to the police was not pertinent to the crime. Nevertheless, the Michigan Court of Appeals held that, even if Mr. Aldred's account of his presence at the crime scene, as relayed to Petitioner's first defense attorney, was found to be credible, it did not provide an alibi for Petitioner. Thus, the Michigan Court of Appeals held that Mr. Rush's failure to secure Mr. Aldred's testimony did not prejudice Petitioner. Petitioner has failed to show that the state court's conclusion was contrary to or an unreasonable application of Supreme Court precedent.
With respect to Petitioner's claim that Mr. Rush failed to locate other alibi witnesses, the Michigan Court of Appeals held, in pertinent part:
[A]ttorneys Rush and Lengyel testified with respect to their attempts to locate Sara Shuerer, Charles or Chuck Taylor, and others who allegedly could have provided defendant with an alibi. As the trial court explained in denying defendant's request for a new trial, mail searches, jail searches, and personal searches were conducted by the attorneys without success, and employment of a private investigator was equally successful. Defendant had the burden of creating a testimonial record supporting his claims of ineffective assistance and excluding "hypotheses consistent with the view that his trial lawyer[s] represented him adequately." Ginther, supra at 442-43. Defendant has failed to show that any additional effort by trial counsel would have produced the witnesses. In fact, neither defendant nor his appellate counsel was able to locate the missing witnesses to obtain their testimony or affidavits for purposes of the Ginther hearing, even after that proceeding was continued at least three times to facilitate obtaining additional evidence. Thus, defendant has provided no evidence to overcome the presumption that trial counsel performed adequately. Even more significant is defendant's failure to provide admissible evidence that the witnesses would have corroborated his claimed alibi. There is simply no evidence that the witnesses would have testified that defendant was with them at the time of the murder. Therefore, defendant has failed to show any prejudice with regard to counsel's failure to locate or call these witnesses.People v. Danforth, slip op. at 9.
Petitioner has failed to show that the Michigan Court of Appeals' decision was contrary to or an unreasonable application of Supreme Court precedent.
Second, Petitioner claims that his attorney erred in failing to request a jury instruction regarding alibi defense. As discussed above, Petitioner's attorney was unable to locate the alibi witnesses identified by Petitioner. Therefore, Petitioner's counsel was not ineffective in failing to request an alibi instruction.
Thus, Petitioner is not entitled to habeas corpus relief regarding his claims that his attorney was ineffective in failing to pursue the alibi defense and in failing to request an alibi instruction.
2. Exclusion of Hearsay Testimony
Petitioner next claims that his attorney was ineffective in failing to object to the trial court's ruling which excluded as hearsay evidence Petitioner's testimony as to what Bowles and Roberts told him. The Michigan Court of Appeals held that Petitioner failed to show that it was error for this testimony to be excluded. People v. Danforth, slip op. at 8. Thus, Petitioner's attorney was not ineffective in failing to object to the exclusion of properly excluded testimony.
3. Impeachment of Travis Bowles
Petitioner claims that Mr. Rush was ineffective in failing to impeach Travis Bowles with his prior criminal record. The only documentation presented by Petitioner in support of this claim supports the conclusion that, prior to his involvement with the murder of Lovell Roberts, Mr. Bowles had no criminal history which would be admissible under Michigan Rules of Evidence. See July 9, 1999 Letter from State Appellate Defender, Ex. Y to Brief in Support of Habeas Corpus Petition. Therefore, Petitioner has failed to establish that his trial attorney was ineffective in failing to impeach Mr. Bowles.
4. Failure to Object to Alleged Prosecutorial Misconduct
Petitioner claims that his attorney erred in failing to object to prosecutorial misconduct. Specifically, Petitioner claims that the prosecutor improperly commented on his post- Miranda silence.
The last state court to address this issue, the Michigan Court of Appeals, held, in pertinent part:
[D]efendant's mere failure to mention certain events during his post-Miranda interrogation to which he later testified at trial was not an invocation of his Miranda right to remain silent with respect to which a prosecutor cannot comment. See Doyle v. Ohio, 426 U.S. 610; 96 S.Ct. 2240; 49 L.Ed.2d 91 (1976).People v. Danforth, slip op. at 8-9.
Petitioner has failed to show that the state court's determination that the prosecutor did not engage in misconduct was incorrect or contrary to or an unreasonable application of Supreme Court precedent. Therefore, Petitioner cannot establish that his attorney erred in failing to object to proper prosecutorial conduct.
5. Cumulative Effect
Finally, Petitioner claims that he is entitled to habeas corpus relief because the cumulative effect of his attorney's errors deprived him of a fair trial. This Court has determined that the state court's holding that the errors alleged by Petitioner were not errors was not contrary to or an unreasonable application of Supreme Court precedent. Thus, Petitioner's claim that the cumulative effect of the errors alleged herein deprived him of a fair trial so as to entitle him to habeas corpus relief is meritless.
C. Alleged Ineffective Assistance of Appellate Counsel
Petitioner claims that he was also denied the effective assistance of appellate counsel. Petitioner argues that his appellate attorney, Fred Bell, was ineffective in failing to present certain claims on appeal identified by Petitioner and in failing to locate certain witnesses to testify at the evidentiary hearing in the trial court.
The Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). The Court further stated:
For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the . . . goal of vigorous and effective advocacy. . . . Nothing in the Constitution or our interpretation of that document requires such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
In a pro per supplemental brief filed in the Michigan Court of Appeals, Petitioner presented all of the claims his appellate counsel declined to present. The Michigan Court of Appeals addressed each of these claims and held them to be meritless. Therefore, Petitioner cannot show that he was prejudiced by his appellate counsel's failure to present meritless issues.
Next, Petitioner claims that his appellate attorney provided inadequate representation at the evidentiary because he did not locate certain witnesses. The record reflects that the Ginther hearing was postponed three times in an attempt to locate missing witnesses. Neither appellate counsel nor trial counsel was able to locate the missing witnesses. Petitioner does not identify any actions his appellate attorney could have taken in locating these witnesses which would have proved more fruitful than those taken.
Thus, Petitioner has not shown that his appellate attorney's representation fell outside the wide range of reasonably competent assistance. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
D. Exclusion of Hearsay Evidence
Petitioner claims that the trial court erred in excluding certain hearsay testimony. Petitioner testified in his own defense and was not permitted to restate statements made to him by Bowles and Roberts. Petitioner argues that he would have testified that Bowles constructed a plan to knock out the victim and obtain the victim's drugs. Petitioner states he also would have testified that Roberts agreed to Bowles' plan.
It is well-established that "`federal habeas corpus review does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991), quoting Louis v. Jeffers, 497 U.S. 764, 780 (1990). The Sixth Circuit has held that "[i]n a federal habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law." Long v. Smith, 663 F.2d 22, 23 (6th Cir. 1981). "Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
Petitioner has failed to show that the trial court's decision not to admit the hearsay testimony was incorrect or denied him his fundamental right to a fair trial. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.
E. Alleged Prosecutorial Misconduct
Finally, Petitioner claims that he is entitled to habeas corpus relief because the prosecutor engaged in misconduct by commenting on Petitioner's post-Miranda silence.
"Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances." Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). The Court must examine "`the fairness of the trial, not the culpability of the prosecutor.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997), ( quoting Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Sixth Circuit has identified the factors a court should consider in weighing the extent of prosecutorial misconduct:
In every case, we consider 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.
Id. at 964 ( quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)).
As discussed above, the Michigan Court of Appeals held that the prosecutor did not engage in misconduct because the prosecutor commented, not on Petitioner's post-Miranda silence, but on the statement given to police by Petitioner. Petitioner has failed to show that the prosecutor's conduct rendered his trial fundamentally unfair or that the state court's holding was contrary to or an unreasonable application of Supreme Court precedent. Accordingly, he 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.