Opinion
No. 00-CV-75524-DT
January 7, 2003
OPINION ORDER GRANTING PETITION FOR CERTIFICATE OF APPEALABILITY
I. Introduction
On August 29, 2002, the Court filed an Opinion and Order and entered a Judgment Denying Petitioner's Application for Writ of Habeas Corpus. Petitioner subsequently filed an Application for Certificate of Appealability with the Court on October 2, 2002. Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a § 2254 proceeding unless a circuit justice or judge issues a Certificate of Appealability. 28 U S.C. § 2253(c)(1)(B); 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b) .
II. Statement of Substantive Facts
Petitioner was convicted of: (1) first degree murder pursuant to MCL § 750.316; (2) conspiracy to commit first degree murder pursuant to MCL § 750.157(a); (3) obstruction ofjustice, pursuant to MCL § 750.505; (4) conspiracy to obstruct justice, pursuant to MCL § 750.157(a); and (5) possession of a firearm during the commission of a felony, pursuant to MC: § 750.227b. The convictions arose from the fatal shooting of Christina Souher, who testified against Petitioner's cousin (Ricky Moore) in a preliminary examination held three days before her death. Souher testified at the examination that she observed Ricky Moore shoot and kill her boyfriend, Norvell Dones.
The trial court sentenced Petitioner to two years for the felony firearm conviction, followed by concurrent terms of life imprisonment for the murder, twenty to sixty years for conspiracy to commit murder, and two to five years for the obstruction of justice convictions.
After Petitioner's exhaustion of appellate rights through the state courts and the denial by this Court of Petitioner's request for habeas relief, Petitioner has filed a request for a ruling on Certificate of Appealability.
III. Standard of Review for Issuance of Certificate of Appealability
In order to obtain a Certificate of Appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition for habeas relief should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Court must either issue a Certificate of Appealability indicating which issues satisfy the required showing, or must state the reasons why such a certificate should not issue. Fed R. App. P. 22(b). When a district court rejects a habeas petitioner s constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484, 120 S.Ct. 1595. A district court has the power to deny a certificate of appealability sua sponte. Allen v. Stovall, 156 F. Supp.2d 791, 798 (E.D.Mich. 2001).
After reviewing the Court's August 29, 2002 Opinion and Order Denying Petitioner's Application for Writ of Habeas Corpus, the Court finds that Petitioner has failed in part to show that the Court's findings and conclusions on the myriad of issues raised by Petitioner's in support of his Application warrant the issuance of a Certificate of Appealability in this matter. However, the Court also finds that some of the issues raised by Petitioner do warrant the issuance of a Certificate of Appealability; and therefore, Petitioner's request for a Certificate of Appealability is granted in part and denied in part.
IV. Statement of Facts Relative to Issuance of Certificate of Appealability
Petitioner raises nine issues wherein he asserts that his constitutional rights have been violated. It is upon these claims that Petitioner contends he should be granted a Certificate of Appealability.
A. Use of Souher's Preliminary Examination Testimony
Since Souher was killed, and thus unavailable to testify at Petitioner's trial, the lower court allowed the reading of Souher' s preliminary examination testimony into evidence. The Court finds that allowing her prior testimony to be admitted into evidence was proper hearsay by reason that Souher was unavailable, her testimony carried indicia of reliability, and her prior testimony was being admitted to prove Petitioner's motive (i.e., to kill Souher in order to keep her from testifying against Ricky Moore at his trial) and not to prove the truth of the matter asserted.
Alternatively, Petitioner argues that portions of the preliminary examination transcript should have been redacted and/or a limiting jury instruction should have been given regarding the content of the testimony. Since trial counsel for Petitioner failed to raise that issue at trial, Petitioner is procedurally defaulted from raising it now as a basis for issuance of a Certificate of Appealability. However, if Petitioner can show "cause and prejudice" for the procedural error (i.e., failing to place a proper objection on the record at trial), prejudice or a miscarriage of justice, the Court may consider the issue. To establish cause to excuse a procedural default, a petitioner must present a substantial reason to excuse his procedural default. This generally requires the petitioner to "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Ineffective assistance of counsel is cause for a procedural default. Id. However, attorney error that falls short of constitutional ineffective assistance of counsel does not constitute "cause" for a procedural default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994).
Because Souher' s preliminary examination testimony was prejudicial evidence against Petitioner, although admissible, the Court finds that an effort to limit the negative impact upon Petitioner's case by either moving for redaction of the transcript or requesting a limiting jury instruction is a debateable issue amongst reasonable jurists which could lead them to have resolved Petitioner's request for habeas relief in a different manner. It is the Court's finding the cumulation of errors such as this resulted in a debateable issue about the effectiveness of Petitioner's trial counsel as well as appellate counsel. Accordingly, the Court finds that the issue of redaction and requesting a limiting instruction are not procedurally barred from consideration.
B. Prosecutorial Misconduct
Petitioner asserts that his constitutional right to a fair trial was violated due to the prosecutor's conduct during the course of trial. When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the "touchstone of due process is the fairness of the trial, not the culpability of the prosecutor." Millender v. Adams, 187 F. Supp.2d 852, 875 (E.D. Mich. 2002). On habeas review, the Court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). Because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D.Mich. 1985).
Allegations of denigrating defense by stating that defense witnesses were not credible, misstating the evidence, arguing facts not in evidence, commenting on the defendant's exercise of his right to remain silent, repeatedly shifting the burden of proof, undermining the presumption of innocence, misstating the law, and improperly appealing to the sympathies of the jury.
When analyzing a claim of prosecutorial misconduct, a court must initially decide whether the challenged statements were improper. Boyle v. Milhon, 201 F.3d 711, 717 (6th Cir. 2000). If the conduct is improper, the district court must then examine whether the statements or remarks are so flagrant as to constitute a denial of due process and warrant granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra, supra 4 F.3d at 1355-1356.
Petitioner cites a myriad of situations where it is alleged that prosecutorial misconduct took place. Petitioner, again, is confronted with the procedural default issue because several of these instances of alleged prosecutorial misconduct were not objected to at trial.
1. Misstating the Evidence Arguing Fact Not in Evidence
"Petitioner alleges that the prosecutor deprived him of a fair trial by repeatedly arguing that Christina Souher's testimony at Ricky Moore's preliminary examination was true." ( Opinion and Order Denying Application for Writ of Habeas Corpus, pg. 11). Even though the Court may have instructed the jury that attorney's comments and arguments were not evidence and that the jurors should not let sympathy or prejudice influence their decision, the Court finds that reasonable jurists may find such conduct by the prosecutor adequate to deserve encouragement to proceed further in Petitioner's quest for relief The prosecution was successful in getting Souher' s testimony into evidence to establish motive and not to prove the truth of the matter asserted. To then tell the jury "repeatedly" that Souher's testimony is true is extremely prejudicial. The fact that no objection was lodged opposing these arguments further bolsters the debate about the ineffective assistance of counsel issue.
Also, at trial, it is undisputed that the prosecutor made two statements to the jury which were facts not in evidence, but rather were inferences made by the prosecutor and argued to the jury: (1) Souher was held captive before she was killed; (2) Petitioner fled the state after the murder to avoid prosecution; and (3) Souher was forced to sign a recanting affidavit. Given the fact that there were nor curative instructions about these statements made to the jury, it is reasonable to believe that the jury may have taken these statements and argument in support of these statements as evidence. Accordingly, the Court finds that even though a prosecutor is permitted to make reasonable inferences from the evidence, reasonable jurists may agree that such evidence presents an appealable issue which may affect the availability of habeas relief for Petitioner. Therefore, the failure of defense counsel to raise an objection to these statements prejudiced Petitioner; and this issue should be a matter of review despite the procedural default.
Petitioner also states that the prosecutor's comments about witnesses' testimony being "fundamentally inconsistent" and a statement about Leonard Jones being a hostile witness are factual grounds for prosecutorial misconduct. The Court does not agree and focuses its analysis upon the above discussed statements.
2. The Presumption of Innocence, Misstating the Law the Right to Remain Silent
Petitioner asserts the following: (1) "the prosecutor mocked the presumption of innocence by arguing that defense counsel could have called two witnesses, who supposedly were present at the approximate time of the crime;" (2) the prosecutor erroneously informed the jurors that they could not consider the witnesses' prior testimony as substantive evidence;" and (3) the prosecutor commented on his right to remain silent by stating that Petitioner refused to say anything to police officers." (Opinion and Order Denying Application for Writ of Habeas Corpus, pg. 12, 15). Defense counsel failed to object to any of these statements; and each of these statements had to be cured by an instruction from the trial court. The Court finds that cumulatively, these statements and comments by the prosecution rise to the level of a debateable issue regarding prosecutorial misconduct.
A cumulative error analysis is appropriate where there are certain errors which, while considered alone might not deprive petitioner of due process, may cumulatively produce a trial that is fundamentally unfair. United States v. Mays, 69 F.3d 116, 123 (6th Cir. 1995); See also, Shacks v. Tessmer, 9 Fed.Appx. 344, 355 (6th Cir. 2001). However, meritless claims or claims that are not prejudicial cannot be cumulated, regardless of the total number raised. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996). The Court does not find Petitioner's assertions of error to be meritless when analyzed individually. Even though a curative instruction was given for each of the prosecutor's statements. the fact that so many statements required a curative instruction comes within the standard of review for issuance of Certificates of Appealability.
Petitioner also raises an issue of denigrating the defense as a prosecutorial conduct issue. The Court finds no merit to Petitioner's claim for reasons set forth in the Opinion and Order Denying Application for Writ of Habeas Corpus, dated August 29, 2002.
3. Shifting the Burden of Proof Appeal to the Juror's Sympathy
"Petitioner alleges that the prosecutor shifted the burden of proof by arguing that defense counsel: (1) had not established an explanation for why the prosecution witnesses would lie; (2) could have called witnesses not presented by the prosecution; and (3) had not given an explanation for the decedent's death." ( Opinion and Order Denying Application for Writ of Habeas Corpus, pg. 18) (transcript references omitted). The Court finds that this claim of prosecutorial misconduct is deserving of being certified for appeal for the following reasons: (1) another curative instruction was necessary, which this Court relies upon as its basis for concluding that "any constitutional error did not have a `substantial and injurious effect or influence in determining the jury's verdict' and was harmless"; (2) this Court stated in its Opinion that such statements "might have been ill-advised;" and (3) the procedural default rule is inapplicable as it relates to Petitioner's claim regarding the improper shift of the burden of proof. ( Opinion and Order Denying Application for Writ of Habeas Corpus, pg. 19), Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).Petitioner also claims that the prosecutor attempted to appeal to the sympathies of the jury in an effort to obtain a conviction by pointing to a picture of Souher "and saying that was all they had left of her." ( Opinion and Order Denying Application for Writ of Habeas Corpus, pg. 19). Even if the prosecutor's appeals to the jury's emotions or sympathies are deemed improper, this would be insufficient to render the trial fundamentally unfair, since it was likely that the nature of the crime itself would have produced juror sympathy before the prosecutor made any of the alleged improper comments. Walker v. Gibson, 228 F.3d 1217, 1243 (10th Cir. 2000). Finally, Petitioner's claim would also be defeated by the fact that the trial court instructed the jury that they were not to let sympathy or prejudice influence their decision. Welch v. Burke, 49 F. Supp.2d 992, 1006 (E.D Mich. 1999). Therefore, the Court finds that no certification should be granted relative to Petitioner's claim of prosecutorial misconduct arising due to an alleged attempt to appeal to the sympathy of the jury.
C. Judicial Misconduct
Petitioner claims that the trial court's repeated harassment of defense counsel in the presence of the jury so tainted the proceedings that he was denied his Sixth Amendment right to a fair trial. "The influence of the trial judge on the jury `is necessarily and properly of great weight' and his lightest word or intimation is received with deference, and may prove controlling." Querecia v. United States, 289 U.S. 466, 470 (1933), quoting Starr v. United States, 153 U.S. 614, 626 (1894). Further, a judge should not assume the role of a witness or distort the evidence. Id. The trial judge has a duty "to use great care that an expression of opinion upon the evidence `should be so given as not to mislead, and especially that it should not be one-sided.'" Id.
In Smith v. Withrow, 182 F.3d 918 (6th Cir. 1999) ( unpublished), even though the Smith court ultimately found that the petitioner received a fair trial despite alleged prejudicial remarks made by the trial court, the Sixth Circuit granted petitioner's certification of appealability relative to the issue of judicial misconduct at trial. Smith, supra at 1-2). The factual allegations of judicial misconduct are very similar to the facts before this Court (i.e., impatience by the trial court, belittling defense counsel, chastising defense counsel, etc.) Therefore, this Court will follow the guidance of the Sixth Circuit and certify for appeal Petitioner's claim that the trial court acted in a manner which subjected Petitioner to an unfair trial.
D. Co-Conspirator Testimony The Shell Casings
Petitioner asserts that he was deprived of a fair trial and his right to confront witnesses against him when the prosecution used the out-of-court statement of alleged co-conspirators as substantive evidence against Petitioner. Petitioner further states that he was deprived of a fair trial by the erroneous admission into evidence of four spent shell casings. Habeas relief was denied as to both issues because these claims were based upon perceived errors of state law. ( Opinion and Order Denying Application for Writ of Habeas Corpus, pp. 22-24). However, the basis for these claims are constitutional (i.e., Petitioner's inability to cross-examine alleged co-conspirators and witnesses who testified about the shell casings). Therefore, the Court finds that reasonable jurists may be able to debate and/or agree about the impact of these alleged constitutional errors upon the denial of Petitioner's habeas relief.
E. Ineffective Assistance of Counsel
To show that he was denied the effective assistance of counsel under federal constitutional standards, a Petitioner must satisfy a two prong test. First, the Petitioner must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the Petitioner must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, Petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689.
Second, the Petitioner must show that such performance prejudiced his defense. Id. To demonstrate prejudice, 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." Strickland, 466 U.S. at 694.
For purposes of certifying the issue of ineffective assistance of counsel for appeal, all that is necessary is that the issue be a debateable one amongst reasonable jurists and that they may agree that such evidence in support of an ineffective of assistance of counsel claim may affect the availability of habeas relief for Petitioner. Therefore, the stringent Strickland standard is not required for this Court to make a ruling regarding certifying a claim for appeal. Based upon the foregoing omissions and/or actions of trial counsel and discussion, the Court finds that the issue of ineffective assistance of counsel should be certified for appeal.
The specific acts as they relate to appellate counsel's effectiveness is related to his alleged failure to order transcripts timely and his failure to raise certain issues on appeal. The Court finds that appellate counsel's effectiveness in his representation of Petitioner is likewise an issue that is certifiable for appeal. The Court finds that its ruling regarding appellate counsel's effectiveness in the August 29, 2002 Opinion was based upon more speculation as to what would have happened if appellate counsel had acted in a certain manner or what would not have happened despite the actions of appellate counsel, rather than fact, and therefore a debateable issue is raised for reasonable jurists to resolve.
For the reasons set forth in this Court's August 29, 2002 Opinion and Order Denying Application for Writ of Habeas Corpus, the Court finds that Petitioner has made a substantial showing of a denial of a constitutional right; and the following issues, as detailed above, are hereby certified for appeal: (1) prosecutorial misconduct; (2) judicial misconduct; (3) deprivation of right to confront witnesses; and (4) ineffective assistance of counsel.
Accordingly,
IT IS HEREBY ORDERED that Petitioner's Application for Certificate of Appealability [Docket No: 30-1] is GRANTED. A Certificate of Appealability will issue in this case.