Opinion
Case No. 02-10076-BC.
July 19, 2004
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
The petitioner, Donald Hunter Ellis, a Michigan prisoner currently confined at the Mound Correctional Facility in Detroit, Michigan, has filed a pro se 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. The petitioner was convicted of second-degree murder under two different theories and possession of a firearm in the commission of a felony following a jury trial in the Wayne County Circuit Court in 1997. This was the petitioner's second trial. His first trial resulted in a mistrial because the jury was unable to reach a unanimous verdict. The petitioner was sentenced to concurrent terms of thirteen to thirty years imprisonment and a consecutive two-year term on those convictions. In his pleadings, the petitioner raises claims of prosecutorial misconduct, ineffective assistance of counsel, improper jury instructions, judicial misconduct, improper admission of rebuttal testimony, and cumulative error. The respondent contends that the petitioner's claims either are barred by procedural default or lack merit and should be denied. The Court concludes that some of the petitioner's claims are procedurally defaulted, and his other claims lack merit. Accordingly, the Court will deny the petition for writ of habeas corpus.
I.
The petitioner's convictions stem from the shooting death of Kimani Mason ("Mason") on July 16, 1995 at a suspected gambling house on Tyler Street in Detroit, Michigan. The petitioner was charged with first-degree premeditated and felony murder and possession of a firearm during the commission of a felony. The prosecution's theory of the case was that the petitioner killed Mason because of a dispute over money. The defense theory was that the petitioner shot Mason in self-defense during a struggle over a loaded gun.The prosecution presented several witnesses at trial. Roger Mason identified his nephew, Kimani Mason, as the victim of the shooting and provided background information about him.
Mary Styles testified that the shooting occurred in her home on Tyler Street where she lived with her three grandsons. She stated that she knew Kimani Mason as "Mike" and that he owed her $600 for making long distance calls from her home. On the night of the shooting, she was in bed when she heard what sounded like running and glass breaking in the bathroom. She left her bedroom and saw Mason crawling on the living room floor. He said, "Granny don't let him hurt me." A man whom she could not identify was in the room with his back to her. The man said to Mason, "Give me my damn money." Mason told him to look in his pocket. The man took something from Mason's pocket and left the premises.
Glen Buyck, one of Styles' grandsons, testified that he was upstairs sick with the flu on the night of the shooting, but he knew that people were gambling in the basement. Buyck knew both Mason whom he called "Mike" and the petitioner whom he called "Jack." Bucyk testified that a woman named Sheryl Rice came into his bedroom to sleep in his brother's bed. Shortly thereafter, he heard gunshots and sounds of a struggle in the house. He got up and saw the petitioner standing over Mason saying he wanted his "damn money." Bucyk testified that the petitioner had previously told him that Mason had robbed him. He also said that the petitioner had warned him to keep Mason away from the house.
Carl Schmidt, an assistant Wayne County medical examiner, testified that Mason suffered two gunshot wounds to the abdomen and chest area with exit wounds to the back side of his body. He noted that Mason was treated at the hospital for his injuries and that the treating physicians may have removed a bullet during treatment. He also testified that there was no evidence on Mason's skin of close range firing. On cross-examination, the medical examiner acknowledged that Mason's clothing showed soot on the inside, which would be evidence of close-range firing. Chemist Steven Gawlik's report, reflecting this information, was admitted into evidence at defense counsel's request.
Brittany Heath, Kimani Mason's fiancee, testified that she and Mason had a child together and that they had been living with his mother at the time of his death. She explained that Mason had moved back to Michigan several weeks before she arrived and that they spoke on the telephone ten to fifteen times each day while they were apart. She said that Mason had worked for Sears as a telemarketer in Ohio. When she joined him in Detroit, they worked on fixing up his deceased grandmother's home. Mason was also in the process of getting a job with Chrysler, and Heath was planning to attend beauty school. On the night of the shooting, Heath and Mason had gone to Canada on a date and she fell asleep in the car on the way back to Detroit. She remained in the car while Mason went into the house on Tyler Street to gamble and was awakened by police after the shooting. Heath testified that Mason did not own a gun nor did he carry one that night.
Sheryl Rice testified that she knew both Mason and the petitioner. She had seen the petitioner gambling at the Tyler Street house on several occasions. She also admitted that she had sexual relations with him once or twice. On the night of the incident, Mason let her into the home. She saw the petitioner in the basement and observed him walk up the stairs and return carrying a gun. While armed, he went up and down the stairs a few times before leaving the basement through a window. Rice thought something was amiss and decided to leave the house. She testified that she was in the dining room when she first heard a gunshot. She ran into one of the bedrooms and hid under a bed, then heard more gunshots. Rice testified that she heard three shots altogether. She also heard another woman run to the bathroom followed by the sound of glass breaking. Rice stayed under the bed until the police arrived, but heard someone say, "Give me my damn money." She said that she no longer lived in the neighborhood where the shooting occurred because someone had a "hit" out on her, but her comment was stricken by the court upon defense counsel's objection. Rice testified that the petitioner usually had a lot of money with him, but that he also brought marijuana to the house to finance his gambling. She recalled that, sometime before the shooting, the petitioner had told her that he had been robbed. On cross-examination, Rice acknowledged that she previously had testified that the second and third gunshots sounded more muffled than the first one. She also recalled seeing displaced and broken furniture in the living room when she came out of the bedroom after the police had arrived.
Detroit Police Officer Carl Allen testified that he and his partner responded to the shooting at 2:55 a.m. on July 16, 1995. He observed Kimani Mason on the floor and thought that he might be dead. He testified that he saw two spent bullet casings from an automatic or semi-automatic handgun near the front door and another spent casing near Mason's body. While preserving the scene, he questioned the witnesses and was given the suspect's nickname of "Jack."
The parties then placed stipulations on the record involving the retrieval of Mason's clothing and personal items and the petitioner's arrest. They also stipulated to the firearm examiners' report, which stated that three fired 9 mm cartridge casings and a 9 mm jacketed bullet casing, each of which had been tagged as evidence, all came from the same weapon.
Detroit Police Evidence Technician Frank Horan testified that he examined the scene of the shooting. He described photographs of the house and recalled recovering the casings. He stated that casings could have dropped where the shots were fired or several feet away.
Detroit Police Sergeant Patrick Henahan testified that he received an anonymous tip on the day of the shooting that the petitioner was the suspect identified by witnesses as "Jack." The petitioner was subsequently arrested on July 19, 1995. Sergeant Henahan testified that he retrieved a spent bullet, which had been recovered from Mason's body, from the medical examiner's office. He further testified that he received a copy of the petitioner's social security card and driver's license from a tip sheet. He spoke to an individual who reported that Mason had given him those documents about a month before his death in case something happened to him.
Defense counsel then presented the testimony of the petitioner, who claimed that the shooting was done in self-defense. The petitioner testified that Kimani Mason and another man assaulted him, taking his car, six or seven hundred dollars, and his wallet containing his driver's license and credit card, around 2:00 p.m. on June 19, 1995. The petitioner said that he made several calls from a pay telephone after the carjacking, including calls to the police and his wife. He left the scene after forty-five minutes because the police had not yet arrived. He retrieved the car later and had it towed to his house because he did not have the keys. A towing receipt was admitted into evidence. The petitioner also testified that his wife arranged to have the locks on their car and their home changed by a company called Praiseworthy Locksmith after the robbery because the perpetrators had his keys and personal information.
At the time of the shooting, the petitioner was employed by an organization called "I Can" as an athletic director. The petitioner said that he went to the house on Tyler Street on July 16, 1995 to gamble at the request of Mary Styles' grandson Teddy, who assured him that Mason would not be there. When the petitioner arrived, Mason was not at the house, but several other people were in the basement talking and playing cards. Sometime later, Teddy ran down the stairs and told him to be careful because "they" were there. The petitioner thought he was referring to Mason and recalled that Teddy had shown him where a handgun was hidden in a cubby hole near the stairs. The petitioner ran up the stairs to listen for voices and recognized Mason's voice. He grabbed the handgun from the cubby hole and went back downstairs. The petitioner testified that he left through the basement window to avoid confronting Mason and any others with him.
The petitioner stated that once he was outside, he realized that he had left his keys and clutch bag in the basement, so he went to the front door and spoke to Teddy. Teddy told him to wait there, which he did. A few minutes later, Mason came to the door holding a gun in his hand The petitioner testified that he thought Mason had an advantage over him, so he dropped his gun and grabbed the barrel of Mason's gun. They struggled and the gun fired. The petitioner felt a sting on his leg. Green shorts containing a bullet hole, which the petitioner claimed he was wearing that night, were admitted into evidence. The petitioner testified that he and Mason struggled fiercely and tore up the living room. The gun fired again and he realized that Mason had been shot. They stopped fighting and Mason slid down his legs to the floor. The petitioner then asked Mason for his money. Mason told him it was in his pocket. The petitioner retrieved the money and left the house. The petitioner claimed that he neither threatened nor intended to kill Mason.
The prosecution presented three rebuttal witnesses. Alice Simms, Kimani Mason's mother, presented a telephone bill from the home she shared with Mason and her brother on June 19, 1995. That bill showed several calls to Ms. Heath's residence on that afternoon. Although Ms. Simms was at work when the calls were made, she surmised that they were made by her son. The bill was admitted into evidence.
Sergeant Henahan was recalled as a witness and stated that he was unable to locate a company called Praiseworthy Locks or Locksmith in the telephone book or from directory assistance. He also testified that there was no record of a police car being dispatched to the carjacking scene, but acknowledged that this did not mean that a call had not been made to the police station.
Chris Thomas, a record-keeper for the towing company, testified that the towing call for the petitioner's car came in at 9:24 p.m. on June 19, 1995 and the tow was completed at 12:27 a.m.
Detroit Police Firearms Expert Ira Gray explained the differences in how a revolver, a semi-automatic, and an automatic weapon are fired. He also explained that the barrel of a semi-automatic weapon would be very hot after being fired and that an automatic weapon would be even hotter.
The prosecution and defense counsel proceeded to closing arguments. The prosecutor argued that the petitioner was fabricating his defense and manipulating the system and his testimony should not be believed. The prosecutor said that the evidence showed that the petitioner intentionally sought out Mason and shot him in a dispute over a debt. The defense counsel, in contrast, claimed that Mason robbed the petitioner weeks prior to the shooting, confronted the petitioner with a gun at the Tyler Street house, and was shot as the petitioner rightfully defended himself and sought the return of his money.
The jury found the petitioner guilty of two counts of second-degree murder and one count of felony firearm. The trial court subsequently sentenced him to the prison terms mentioned above.
Following sentencing, the petitioner filed an appeal of right in the Michigan Court of Appeals raising essentially the same claims presented in the present petition. The court of appeals remanded the case to the trial court to allow the petitioner to file a motion for new trial and for a hearing on a claim that trial counsel was ineffective for stipulating that a bullet was recovered from the victim's body and failing to introduce former testimony that there was evidence of a contact or near-contact wound.
The trial court conducted the required hearing on November 20 and December 7, 1998. At that hearing, defense counsel Milton Henry and prosecutor Emily Wolfe both testified. Milton Henry acknowledged that at the preliminary examination and the first trial, Glen Buyck indicated that he heard sounds of a struggle and then gunshots on the night Mason was killed. Mr. Henry agreed that he did not impeach Bucyk with his prior inconsistent testimony. Mr. Henry offered no specific rationale for this conduct, but noted that his overall strategy was to simplify things for the jury and to show that the petitioner was provoked and did not intentionally shoot Mason.
Mr. Henry further recalled that chemist Steven Gawlik testified at the first trial that Mason's clothing showed evidence of a contact or near-contact wound and the gun barrel was pressed close to Mason. Mr. Henry agreed that the medical examiner testified at the petitioner's second trial that there was no evidence of a contact wound on Mason's body, but noted that the body had been cleaned for surgery. The parties agreed that Steven Gawlik did not testify at the second trial, although the record reveals that Mr. Henry cross-examined the medical examiner with Gawlik's report that Mason's clothing showed evidence of a contact or near-contact wound. Mr. Henry also had Gawlik's report admitted into evidence. Mr. Henry admitted that he did not object to the admission of the bullet taken from Mason's body and that he stipulated that the three fired shell casings came from the same weapon, but said that the casing testimony likely would have been admitted anyway.
Assistant prosecutor Wolfe explained that the parties stipulated that a bullet was recovered from Mason's body, even though the autopsy report indicated that no bullet was recovered, because the bullet was recovered while Mason was treated at the hospital. She noted that this was not an issue at trial because the petitioner claimed self-defense. Ms. Wolfe also testified that three gunshots were fired during the incident: one shot that missed, one shot fired at a distance, and one shot fired at close range. But the sequence of the firings was unclear from the evidence at trial. She recalled arguing that the shots were fired in close succession and that Mason struggled for his life after being shot. Ms. Wolfe also explained that weapons expert Ira Gray testified to rebut the petitioner's assertion that he grabbed a gun held by Mason during the struggle and continued to hold the barrel while several shots were fired.
The trial court thereafter issued an opinion denying the motion for new trial, finding that any error by counsel in failing to object to the bullet evidence was harmless because the parties did not dispute that Mason died from a gunshot wound. The court also found that counsel was not ineffective for failing to present former testimony of a contact or near-contact wound because Steven Gawlik's report regarding that issue was admitted into evidence.
Following the remand, the Michigan Court of Appeals vacated one of the second-degree murder convictions, but affirmed the remaining convictions. See People v. Ellis, No. 210011, 2001 WL 776740 (Mich.Ct.App. Jan. 16, 2001) (per curiam, unpublished). The petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court, which was denied. See People v. Ellis, 465 Mich. 864, 634 N.W.2d 354 (2001).
The petitioner thereafter filed the present petition for a writ of habeas corpus raising the following claims:
A. The petitioner is entitled to habeas corpus relief because he was denied his due process right to a fair trial because of ineffective assistance of trial counsel and prosecutorial misconduct.
A-1 Trial counsel was ineffective for his failure to object to prosecutorial misconduct where the prosecutor encouraged the jury to decide the case based on the sympathy for the deceased and his family, including his fiancee.
A-2 As a result of prosecutorial misconduct in issue "A," the petitioner was denied his due process rights to a fair trial.
A-3 Trial counsel failed to object to the prejudicial introduction of other alleged bad acts of petitioner stemming from prosecutorial misconduct. Counsel also failed to request curative instructions, or that the comments be stricken.
A-4 The petitioner was denied due process by prosecutorial misconduct by introduction of the other acts evidence, without notice to the petitioner, to prejudicially suggest that a hit had been put out on a prosecution witness, that the petitioner had been involved in marijuana dealing, and that he had sex with witness Sheryl Rice.
A-5 Trial counsel erroneously stipulated that a bullet had been recovered from Kimani Mason's body when the medical examiner's report indicated in two different places that "no bullet was recovered" at the autopsy.
A-6 The petitioner testified that the deceased had previously carjacked him. When the petitioner recovered the car he had to have Praiseworthy Locksmith Company gain access to the car. The prosecutor presented rebuttal evidence that an investigation showed no evidence of a Praiseworthy Locksmith Company, ridiculing Petitioner's account in closing, that the petitioner had manufactured the defense by simply inventing Praiseworthy. Therefore, trial counsel was ineffective for failing to investigate and show an offer of proof that the company was an ongoing business owned by Mr. Kelvin Heath.
A-7 Trial counsel failed to impeach Brittany Heath with inconsistent statements that she knew decedent Kimani Mason did not have a gun that night. However her witness statement to police indicated to her knowledge he did not have a gun.
A-8 Trial counsel was further ineffective for failing to object to the hearsay evidence that the petitioner had supposedly given his driver's license to Kimani Mason as security for debt.
A-9 Trial counsel was ineffective for his failure to impeach Brittany Heath with her prior inconsistent statement to police and her testimony given at trial that she experienced a sense of dread when she saw a man drive by the house as the police were talking to her and give her a mean look. At trial, she testified that it was possibly the petitioner. Counsel was ineffective because her statement to police said nothing about this encounter and affirmatively stated that she had no idea who shot the decedent.
A-10 Trial counsel was ineffective for failure to impeach prosecution witness Sheryl Rice with her prior contradictory statements and with other contradictory evidence that would have cast doubt on her version of the events given at the petitioner's second trial.
A-11 Trial counsel failed to impeach prosecution witnesses, Glen Buyck, and his grandmother, Mary Styles, with numerous inconsistent statements.
A-12 Trial counsel was further ineffective for failing to move in limine to preclude testimony, or to object to testimony that the gambling establishment where the death occurred was a "crack house."
A-13 Trial counsel was ineffective for failing to present the prior testimony of police expert Steven Gawlik who testified at the first trial that the decedent's clothing showed evidence of a contact, or near-contact, wound consistent with two men struggling over a gun.
A-14 Trial counsel was ineffective for his failure to move for a curative instruction when the prosecutor prejudicially introduced evidence of the supposed good character of the decedent, which was completely irrelevant to the crimes charged.
A-15 Trial counsel failed to object when the prosecution prejudicially appealed to the jurors to be partial by telling them, "This is a case of the People of the State of Michigan, you and me and everybody in the State of Michigan versus Donald Ellis."
A-16 Trial counsel was ineffective in failing to object to the prosecutor's prejudicial and erroneous assertions that she had a personal knowledge of the petitioner's guilt.
A-17 The prosecutor committed a serious misconduct violating the petitioner's right to a fair trial by expressing its personal knowledge of the petitioner's guilt.
A-18 Trial counsel's failure to object when the prosecutor erroneously asserted that the petitioner could not make a claim of right as to the money obtained from decedent because it was not the same money previously taken from him.
A-19 The prosecutor erroneously asserted that the petitioner could not make a claim of right as to the money obtained from decedent because it was not the same money previously taken from the petitioner.
A-20 Trial counsel was ineffective for failing to object when the prosecutor argued that the petitioner had "fabricated" evidence; that the jury should not be "fooled" by the defense, which was "concocted" by the petitioner and advanced by trial counsel's "ranting and raving"; that the petitioner was seeking to "manipulate" the jury, just as he had manipulated to obtain his job with the Detroit Police Athletic League by not revealing his arrest, although it had not resulted in a conviction; and argued that the petitioner had been "manipulating" the system of justice by "manufacturing" and "concocting" a phony defense for two and a half years allowing him ample time to read the witness statements, when the truth was that the case had been stayed at the prosecutor's request during an interlocutory appeal.
A-21 Trial counsel failed to object that there was no foundation to allow into evidence the telephone bill of a witness under the business record exception to the hearsay rule.
A-22 Trial counsel seriously erred in failing to seek a reasonable doubt instruction including the concept of proof of guilt to a moral certainty.
B. The trial court plainly erred in giving an erroneous instruction on reasonable doubt.
C. The petitioner was denied his due process rights to a fair trial where the trial court and the prosecutor both ridiculed and berated the petitioner and the petitioner's trial counsel in the presence of the jury during the presentation of the defense.
D. The trial court erred in allowing a late improper rebuttal witness where the trial court ruled that the witness would not be permitted.
E. The petitioner was denied his right to due process as a result of the combined errors committed as a result of ineffective assistance of trial counsel, prosecutorial misconduct, and error of the trial court.
The respondent has filed an answer to the petition asserting that the claims should be denied based upon procedural default and for lack of merit.
II.
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 the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527, 2534 (2003).
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). 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, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("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."); 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.").
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, 529 U.S. 362, 405-06 (2000).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. 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 409, 410-11. See also McAdoo v. Elo, 365 F.3d 487, 493-93 (6th Cir. 2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc) cert. denied, ___ U.S. ___, 124 S. Ct. 1601 (2004); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner asserts that he was denied a fair trial due to various instances of prosecutorial misconduct (claims A-2, A-4, A-6, A-14, A-15, A-17, A-19, and A-20). The respondent does not address these claims as distinct issues in the answer to the petition but rather claims that the claims are procedurally defaulted because the petitioner did not comply with the State's contemporaneous objection rule. In reviewing this issue, the Michigan Court of Appeals determined that the petitioner failed to object to most of the matters at trial and concluded that he had not demonstrated plain error affecting his substantial rights, i.e., error that affected the outcome of the trial. See Ellis, 2001 WL 776740, at *1, 2.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 Wainwright v. Sykes, 433 U.S. 72 (1977); Couch v. Jabe, 951 F.2d 94 (6th Cir. 1991). The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 752, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; see Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
If the last state court from which the petitioner sought review affirmed the conviction both on the merits and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Here, the Michigan Court of Appeals rendered the last reasoned opinion discussing prosecutorial misconduct. That court relied upon a state procedural bar to deny relief. See Ellis, 2001 WL 776740, at *1, 2. The procedural rule in question in this case is the requirement that a criminal defendant object to prosecutorial misconduct in order to preserve such a claim for appellate review. See People v. Ullah, 216 Mich. App. 669, 676-77, 679, 550 N.W.2d 568, 573-74 (1996) (citing People v. Van Dorsten, 441 Mich. 540, 544-45, 494 N.W.2d 737 (1993) and People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994)). The petitioner does not dispute that the contemporaneous-objection rule was firmly established and regularly followed with respect to these grounds before the petitioner's 1997 trial. See, e.g., People v. Buckey, 424 Mich. 1, 17-18, 378 N.W.2d 432, 440 (1985); People v. Sharbnow, 174 Mich. App. 94, 100, 435 N.W.2d 772, 775 (1989). Therefore, the appellate court's reliance on the petitioner's failure to object to the prosecutor's conduct and the trial court's instructions is an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994 (6th Cir. 1998); see Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding). It is also clear that the Michigan Court of Appeals explicitly enforced this procedural default.
The petitioner alleges that trial counsel was ineffective as cause to excuse his default. Even assuming that the petitioner could establish that trial counsel erred, however, he cannot establish prejudice resulting from these alleged errors because his prosecutorial misconduct claims are not meritorious.
The 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). However, prosecutorial misconduct will form the basis for a new trial and habeas relief only if the relevant misstatements were so egregious so as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974); see also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). In deciding whether prosecutor misconduct warrants habeas corpus relief, the court must first decide whether the prosecutor's comments were improper and then determine whether the remarks were sufficiently flagrant by considering four factors: (1) the likelihood that the statements would prejudice the defendant or mislead the jury; (2) whether the remarks were isolated or part of a pattern; (3) whether the prosecutor's statements were deliberately or accidentally presented to the jury; and (4) whether the other evidence against the defendant was substantial. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000), overruled on other grounds by, Bowling v. Parker, 344 F.3d 487, 501 n. 3 (6th Cir. 2003), (citing United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994)).
The petitioner first asserts that the prosecutor engaged in misconduct by eliciting testimony from Roger Mason and Brittany Heath regarding Kimani Mason's personal life to create sympathy for the victim and establish his good character (claims A-2, A-14). The state court of appeals rejected the claim because it determined that the evidence was relevant to provide context to the parties' conflicting theories of the case. See Ellis, 2001 WL 776740, at *1, 2. This Court agrees. Roger Mason identified Kimani Mason as the deceased and provided background information. Brittany Heath testified about Mason's lifestyle and his activities prior to the shooting. The prosecutor used this evidence to support her theory that Mason had not assaulted the petitioner in a carjacking incident prior to the shooting and was not armed at the time of the shooting. The evidence may have tended to create sympathy for the victim, but there was a proper purpose for the evidence since the issue of whether the victim was armed was material in light of the petitioner's claim of self defense.
The petitioner next asserts that the prosecutor improperly elicited evidence of his other bad acts, such as adultery and marijuana dealing, from witness Sheryl Rice, as well as hearsay testimony regarding a hit being put out on Rice related to the case (claim A-4). This claim is does not rise to the level of unconstitutional prejudice. The adultery and marijuana testimony was relevant to explain Rice's relationship to the petitioner and her knowledge of his finances and activities at the house on Tyler Street. The evidence was relevant to a material issue. The testimony by Rice that a "hit" was put out on her was likely improper. However, the remark was isolated and the trial court cured any possible prejudice to the petitioner by striking it from the record.
The petitioner also asserts that the prosecutor improperly ridiculed his assertion that he hired the Praiseworthy Locksmith Company to change his door locks (claim A-6). However, the prosecutor was entitled to dispute the petitioner's claim that the victim carjacked the petitioner's vehicle prior to the shooting. The prosecutor presented a police officer who testified that he was unable to locate a Praiseworthy Locksmith Company. This testimony tended to support the prosecutor's argument that the company did not exist and it advanced her theory that the petitioner fabricated the carjacking story. The issue was a legitimate one, and that was fairly addressed by both parties. For instance, defense counsel challenged the police officer's diligence in attempting to locate the company and introduced evidence of a towing receipt to support the petitioner's carjacking claim. No misconduct occurred here.
The petitioner also asserts that the prosecutor engaged in misconduct by emphasizing that "This is a case of the People of the State of Michigan, you and me everybody in the State of Michigan versus Donald Ellis" (claim A-15). This claim lacks merit. First, the prosecutor's comment is truthful. Second, the prosecutor made the comment in the context of telling the jury that it was not a case of the petitioner versus the victim, but rather a criminal proceeding against the petitioner. Given the defense attack on Kimani Mason, the prosecutor properly argued to the jury that the petitioner, not Mason, was on trial.
The petitioner next claims that the prosecutor erred by expressing a personal knowledge of the petitioner's guilt (claim A-17). It is well-settled that a prosecutor may not argue a personal belief in the guilt of the accused. See, e.g., United States v. Young, 470 U.S. 1, 9-10 (1985); United States v. Modena, 302 F.3d 626, 634 (6th Cir. 2002). Such statements are improper because they can "convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant" and because "the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." Gall, 231 F.3d at 312. However, the record in this case fails to reveal any such comments by the prosecutor. The prosecutor's arguments focused on the evidence and reasonable inferences drawn therefrom.
The petitioner next contends that the prosecutor erred in challenging his claim of right to the money taken from the victim at the shooting scene (claim A-19). However, the petitioner offers no legal basis that suggests the invalidity of the State's argument. It was the prosecution's theory that Kimani Mason had not stolen the petitioner's car and that the two men merely had some other dispute over money. The prosecutor properly argued that the petitioner did not have a claim of right to the money in Mason's pocket, and therefore the defendant was guilty of felony murder. The argument was fairly supported by the facts. But no prejudice occurred in all events since the jury rejected the felony murder charge when it convicted the petitioner of second-degree.
The petitioner also insists that the prosecutor engaged in misconduct by arguing that he lied and fabricated evidence and by denigrating him and defense counsel during closing arguments (claim A-20). The record reveals that the prosecutor's remarks did not amount to an unjustified personal attack on the petitioner or defense counsel, but were based upon an evaluation of the evidence. A prosecutor may argue that a witness, including a testifying defendant, is not worthy of belief. See, e.g, Portuondo v. Agard, 529 U.S. 61, 69-71 (2000) (prosecutor's closing argument that defendant had opportunity to hear other witnesses testify and tailor his testimony was proper because prosecutor's comments were directed at defendant's status as witness whose credibility was subject to attack). Although the prosecutor used strong language to dispute the petitioner's testimony and criticize his defense, she did not improperly challenge his veracity or the credibility of his defense so as to render the trial fundamentally unfair. The petitioner has thus failed to demonstrate that he is entitled to habeas relief on his prosecutorial misconduct claims.
Lastly, the petitioner has not shown that a fundamental miscarriage of justice has occurred. To establish that a conviction created a miscarriage of justice, the petitioner must show 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); Murray, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (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, 513 U.S. at 324. The petitioner has made no such showing. His prosecutorial misconduct claims are thus barred by procedural default, otherwise lack merit, and do not warrant habeas relief.
B.
The petitioner also contends that he is entitled to habeas relief because trial counsel was ineffective (claims A-1, A-3, A-5 to A-16, A-18, A-20 to A-22). 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 did not receive the effective 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. Id. 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. Ibid.
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. Ibid. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The 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).
Applying Strickland, the Michigan Court of Appeals concluded that the petitioner failed to establish that trial counsel was ineffective because his allegations were unsupported by the record, involved matters of trial strategy, and did not establish any error that affected the petitioner's substantial rights. See Ellis, 2001 WL 776740, at *2-3. Having reviewed the record, this Court agrees and finds that the Michigan Court of Appeals' decision is consistent with Strickland and constitutes a reasonable application thereof.
The petitioner claims that defense counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct discussed earlier (claims A-1, A-3, A-6, A-14 to A-16, A-18, A-20). Because the Court has determined that the purported prosecutorial misconduct did not prejudice the defense, the petitioner cannot establish that counsel's failure to object to those matters at trial cause him prejudice under Strickland's test. Therefore, habeas relief is not warranted on these claims.
The petitioner also asserts that defense counsel was ineffective for stipulating that a bullet was removed from Kimani Mason's body when the autopsy report indicated that no bullet was recovered (claim A-5). Defense counsel was not deficient for entering this stipulation, however, because the record indicates that the bullet was recovered from Mason's body at the hospital and was included in materials forwarded to the medical examiner's office. Further, the petitioner cannot establish that he was prejudiced by counsel's conduct since he did not dispute that Mason died from gunshot wounds or that he shot Mason; his defense to the shooting was self-defense.
The petitioner also claims that defense counsel was ineffective for failing to impeach Brittany Heath's testimony that Mason was unarmed on the night of the shooting by confronting her with a prior inconsistent statement (claim A-7). This claim may have been one that the state court of appeals relegated to trial strategy, and quite properly so. The difference between Heath's testimony that Mason was not armed and her police statement that "to her knowledge" he was not armed is insignificant. Defense counsel reasonably may have determined that Heath's statements on this issue were consistent. The petitioner has not establish that counsel erred or that he was prejudiced by counsel's decision not to pursue this matter.
The petitioner next claims that defense counsel was ineffective for failing to object to hearsay evidence from Brittany Heath that Kimani Mason had acquired the petitioner's driver's license as collateral for a debt (claim A-8). The record, however, reveals that defense counsel elicited evidence that Mason was in possession of the petitioner's driver's license, wallet, and keys at the time of his death. This supported the petitioner's theory that Mason had assaulted him and stolen his car prior to the shooting. Although Heath testified that Mason told her that the license was collateral for a debt, she had no explanation for the wallet or keys. Consequently, defense counsel reasonably may have determined that an objection was unnecessary. The evidence constituted inadmissible hearsay, but defense counsel is not expected to lodge all objections that may be legally sound when reasonable decisions based on sound trial strategy may counsel otherwise. The petitioner has not established that counsel was deficient or that he was prejudiced by counsel's conduct.
The petitioner also contends that defense counsel was ineffective for failing to challenge Heath's testimony that some time after the shooting the petitioner drove by her and gave her a mean look. This evidence is largely inconsequential. The petitioner's defense at trial was self-defense, not mistaken identity. Moreover, Heath stated that she was not sure that the petitioner was the person who drove past her and admitted that she was not in the house when the shooting occurred. The petitioner therefore has failed to show that counsel was deficient or that he was prejudiced.
The petitioner next asserts that defense counsel was ineffective for failing to impeach Sheryl Rice's testimony with conflicting prior statements concerning where she was when the gunshots began (claim A-10). However, Rice's testimony on this point is not relevant to the issue of whether the shooting was done in self-defense. Moreover, defense counsel extensively cross-examined Rice as to relevant matters, such as the sound of the gunshots that she heard that night and the condition of the living room following the shooting. The petitioner has not shown that counsel was deficient or that he was prejudiced by counsel's conduct in questioning this witness.
The petitioner also claims that defense counsel was ineffective for failing to impeach Glen Buyck and Mary Styles with their prior inconsistent statements (claim A-11). The petitioner asserts that counsel failed to impeach Buyck with his prior testimony that he heard sounds of a struggle before the gunshots. Buyck's prior preliminary examination testimony, however, was equivocal on this issue. At the preliminary hearing, Buyck agreed that he heard a tussle and gunshots, but he also testified that he could not tell who did the shooting or whether it was done during the course of the struggle. Although Bucyk stated at the first trial that he heard a struggle and several gunshots, he was not questioned in detail about their timing. At the post-conviction motion, defense counsel explained that his strategy was to keep things simple for the jury; therefore, he may reasonably have determined that it would be better not to dwell on the timing issue. In addition, impeaching Bucyk with his prior statements could have opened the door to more damaging prior testimony. For example, at the preliminary examination and the first trial, Bucyk testified that the petitioner was holding the gun by the handle in a normal fashion, not by the barrel as the petitioner claimed. Furthermore, even if counsel erred in failing to impeach Bucyk on this issue, the petitioner has not shown that he was unduly prejudiced. The jury could have believed that a struggle occurred before or when the gunshots were fired, but still have concluded, based upon other testimony at trial, that the petitioner instigated the confrontation and the shooting was not done in self-defense.
The petitioner also asserts that defense counsel failed to impeach Bucyk and Mary Styles with their prior testimony concerning the petitioner's retrieval of money from Mason after the shooting. The record, however, reveals that the variations in the testimony were slight. Defense counsel elicited testimony from both witnesses that the petitioner had asked Mason for his money and that Mason had responded that it was in his pocket. Counsel reasonably may have determined that further questioning was unnecessary or could be counter-productive. Moreover, as discussed previously, whether the petitioner had a claim of right to the money was inconsequential since the jury convicted him of second-degree murder rather than first-degree felony murder. The petitioner has not shown that defense counsel was deficient or that he was prejudiced by counsel's conduct.
The petitioner next claims that defense counsel was ineffective for allowing the Tyler Street house to be referred to as a "crack house" (claim A-12). However, the petitioner has not established that he was prejudiced by Sheryl Rice's lone comment that crack cocaine was smoked at the Tyler Street house. The petitioner did not live at the residence and no one testified that he smoked crack. Both the petitioner and the victim frequented the house; therefore it cannot be said the reference to crack cocaine was detrimental to the petitioner. Defense counsel reasonably may have determined that it would be best to ignore the comment since the matter was irrelevant to the shooting. The petitioner has not shown that counsel was deficient or that he was prejudiced.
The petitioner also contends that defense counsel was ineffective for failing to seek admission of Steven Gawlik's prior testimony that Mason's clothing revealed evidence of a contact or near-contact wound to counter the medical examiner's testimony that Mason's body revealed no such evidence (claim A-13). This claim is belied by the record. Defense counsel extensively cross-examined the medical examiner about this issue and had Gawlik's report admitted into evidence. Although the medical examiner testified that Mason's body did not show signs of a close-range firing, he acknowledged that this may have been the result of hospital treatment. Furthermore, Gawlik's report stated that the soot on Mason's clothing was evidence of a close-range firing. The relevant evidence was thus before the jury. The petitioner has not shown that counsel was deficient or that he was prejudiced by counsel's conduct.
The petitioner also claims that defense counsel was ineffective for failing to prevent Alice Simms' testimony and the admission of her telephone bill (claim A-21). The state court of appeals addressed this issue as a matter of state evidentiary law and concluded that the evidence was proper rebuttal to contradict the petitioner's claim that Mason had assaulted the petitioner and taken his car several weeks before the shooting. The court also found that the evidence did not unfairly surprise the petitioner because there was other testimony that Mason telephoned Brittany Heath frequently during the time period at issue. See Ellis, 2001 WL 776740, at *2. Having considered the matter, this Court concludes that defense counsel was not deficient because he did object to the admission of Ms. Simms' testimony, but the court overruled his objections. Further, the petitioner has not shown that the testimony and telephone bill were improperly admitted as a matter of state law. Finally, defense counsel thoroughly cross-examined Ms. Simms concerning the bill and her knowledge of the pertinent telephone calls. The petitioner has thus failed to establish that counsel's performance was deficient or that he was prejudiced by counsel's performance.
Lastly, the petitioner claims that defense counsel was ineffective for failing to object to the trial court's reasonable doubt instruction. The petitioner, however, cannot establish that defense counsel was deficient or that he was prejudiced by counsel's conduct. As discussed below, the reasonable doubt instruction was proper under Michigan law and satisfied due process. Accordingly, for the reasons stated, the Court concludes that the petitioner is not entitled to habeas relief on his ineffective assistance of counsel claims.
C.
The petitioner claims that he is entitled to habeas relief because the trial court erred in instructing the jury on reasonable doubt. The respondent alleges that this claim is barred by procedural default because the petitioner failed to object to the instruction at trial. The state court of appeals noted this deficiency and found that no "plain error" occurred. See Ellis, 2001 WL 776740, at *3. The rules implementing the doctrine of procedural default are discussed above in detail. The Court notes further that the contemporaneous-objection rule was firmly established and regularly followed by Michigan appellate courts with respect to claims of improper jury instructions before the petitioner's 1997 trial. See Ullah, 216 Mich. App. at 676-77, 679, 550 N.W.2d at 573-74; Stanaway, 446 Mich. at 687, 521 N.W.2d at 557. The petitioner therefore must show cause for failing to lodge a contemporaneous objection and resulting prejudice in order to warrant habeas relief on this ground.
In this case, the petitioner alleges that trial counsel was ineffective as cause to excuse his default. The petitioner, however, cannot establish that counsel erred or that he was prejudiced because the reasonable doubt jury instruction he challenges is not unconstitutional.
In order for habeas relief to be granted based upon an improper jury instruction, a petitioner must show that the challenged instruction was so infirm that it rendered the trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). In a collateral proceeding, the question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," not merely whether "the instruction is undesirable, erroneous, or even universally condemned." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)); Austin v. Bell, 126 F.3d 843, 846 (6th Cir. 1997). If an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Binder v. Stegall, 198 F.3d 177, 179 (6th Cir. 1999).
The petitioner asserts that the trial court erred in instructing the jury on reasonable doubt by failing to include "moral certainty" language. As noted, the Michigan Court of Appeals found no plain error with respect to this claim. See Ellis, 2001 WL 776740, at *3. This Court agrees and finds that the Michigan Court of Appeals' decision is consistent with Supreme Court precedent, see Victor v. Nebraska, 511 U.S. 1, 6 (1994), and constitutes a reasonable application thereof. The trial judge instructed the jury on the burden of proof and reasonable doubt and expanded upon the bare-bones standard language from Michigan's pattern instructions without impermissible embellishment. See Burton v. Bock, ___ F. Supp. 2d ___, ___, 2004 WL 1211894 (E.D. Mich., May 26, 2004).
The reasonable doubt instruction given by the trial judge properly indicated the prosecution's burden of proof. Omission of the term "moral certainty" did not violate the petitioner's due process rights because the trial court equated reasonable doubt with "a fair, honest doubt" and "a doubt based upon reason and common sense." The trial court also instructed the jury that the petitioner was presumed innocent until proven guilty, that the prosecution bore the burden of proving that the petitioner was guilty beyond a reasonable doubt, and that the petitioner was not required to come forward with any evidence. Considering the jury instructions in their entirety, the Court finds that the trial court properly instructed the jury on the concept of reasonable doubt and there is no reasonable likelihood that the jury applied the reasonable doubt instruction in an unconstitutional manner. The United States Court of Appeals for the Sixth Circuit has held that a similar reasonable doubt jury instruction satisfies due process. See Binder, 198 F.3d at 178-79. The petitioner has not established that the jury instructions, read as a whole, rendered his trial fundamentally unfair.
Nor has the petitioner established that a fundamental miscarriage of justice has occurred. See Schlup, 513 U.S. at 324-27; Murray, 477 U.S. at 496; see also Bousley, 523 U.S. at 624. His jury instruction claim, lacking merit, is thus barred by procedural default.
D.
The petitioner next claims that he is entitled to habeas relief because the trial court ridiculed and berated him and defense counsel during trial. The respondent contends that this claim is barred by procedural default because the petitioner failed to object to the trial court's conduct at trial and the Michigan Court of Appeals relied upon that failure in denying him relief. See Ellis, 2001 WL 776740, at *3. This Court agrees with the respondent that the petitioner has procedurally defaulted this claim.
Nonetheless, even assuming that the petitioner could establish cause to excuse his default, he cannot establish prejudice or that a fundamental miscarriage of justice has occurred as his claim lacks merit. The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). To state a claim that a judge is biased, a petitioner must show either actual bias or the appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997). Adverse rulings are not themselves sufficient to establish bias or prejudice that will disqualify a judge. Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999). Further, to violate a petitioner's right to a fair trial, a trial judge's intervention in the conduct of a criminal trial must be significant and be adverse to the petitioner to a substantial degree. See, e.g., McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985); see also Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (state trial judge's behavior must render the trial fundamentally unfair to warrant habeas relief).
Reviewing the issue for plain error, the Michigan Court of Appeals concluded that the trial court's comments "did not pierce the veil of judicial impartiality" or unduly influence the jury. See Ellis, 2001 WL 776740, at *1. Having reviewed the record, this Court finds that the state court's decision is consistent with Supreme Court precedent and constitutes a reasonable application thereof. Although the trial judge was abrupt with the petitioner and defense counsel on occasion, he also admonished the prosecutor at times and treated the parties equally in attempting to move the case along. More often than not the trial court's comments were directed at both parties and were intended to spur them to proceed with matters relevant to the issues at hand Although, like the state court of appeals, this Court does not condone the trial court's remarks, the record reveals that the trial court did not exhibit undue bias against the petitioner or his counsel so as to render the trial fundamentally unfair. Habeas relief is not warranted on this claim.
E.
The petitioner next claims that he is entitled to habeas relief because the trial court erred in admitting the rebuttal testimony of firearm expert Ira Gray. The respondent contends that this claim is barred by procedural default because the petitioner failed to object to this testimony at trial and the Michigan Court of Appeals relied upon that failure in denying him relief. See Ellis, 2001 WL 776740, at *3. This Court agrees with the respondent that the petitioner has procedurally defaulted this claim. Even assuming that the petitioner could establish cause to excuse his default, however, he cannot establish prejudice or that a fundamental miscarriage of justice has occurred as his claim lacks merit.
It is well-established that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle, 502 U.S. at 67-68; Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Only where admission of the disputed evidence rendered the trial "so fundamentally unfair as to constitute a denial of federal rights" may it provide grounds for granting a writ of habeas corpus. Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994).
The Michigan Court of Appeals noted that Gray's testimony was properly admitted because it was relevant to the firing of semi-automatic and automatic weapons, either of which could have been used to shoot Kimani Mason. See Ellis, 2001 WL 776740, at *3. This Court agrees that Ira Gray's testimony did not render the petitioner's trial fundamentally unfair. The petitioner has not established that the Michigan Court of Appeals' decision is contrary to United States Supreme Court precedent or that it constitutes an unreasonable application of federal law.
F.
Lastly, the petitioner asserts that he is entitled to habeas relief based upon the cumulative effect of the alleged errors at trial. The Michigan Court of Appeals rejected this claim because the petitioner had not established entitlement to relief on any of the alleged errors. See Ellis, 2001 WL 776740, at *4. This Court has determined that the petitioner's claims lack merit; therefore he cannot establish that habeas relief is warranted based upon a claim of cumulative error. Further, the Sixth Circuit has noted that the United States Supreme Court "has not held that distinct constitutional claims can be cumulated to grant habeas relief." Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). Therefore, the Michigan Court of Appeals' rejection of the cumulative error claim is neither contrary to nor an unreasonable application of United States Supreme Court precedent.
III.
Some of the petitioner's claim are procedurally defaulted and the other claims lack merit. The petitioner has not established that he is presently in custody in violation of the Constitution or laws of the United States.Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion for appointment of an expert [dkt # 5] and motion for evidentiary hearing [dkt # 6] are DENIED as moot.