Opinion
NO. 99-CV-75617-DT.
July 24, 2000.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Glenn Ethridge, a state prisoner currently confined at the Michigan Reformatory in Ionia, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first-degree premeditated murder and felony firearm following a jury trial in the Wayne County Circuit Court in 1995. He was sentenced to life imprisonment without parole and two years imprisonment, to be served consecutively.
Petitioner asserts that he is entitled to habeas relief because the prosecution failed to produce a witness and did not exercise due diligence in attempting to secure that witness and because the trial court failed to give an adverse inference instruction as to the witness's testimony. For the reasons stated below, Petitioner's request for habeas relief is denied and the petition for a writ of habeas corpus is dismissed.
I. Factual Background
Petitioner's convictions stem from the shooting death of Danyale Cameron during a drive by shooting in Detroit, Michigan on August 30, 1994. At trial, several prosecution witnesses testified regarding Petitioner's involvement in the incident. Dennis Cameron, the victim's brother, testified that he and Petitioner and their respective friends had feuded in the days prior to the shooting. On the day of the shooting, Cameron saw Petitioner, Freddie Williams, and Wayne Black drive by his house in a tan Bonneville. As Cameron turned to go inside the house, he heard four shots. He looked over his shoulder and saw Petitioner shooting a black gun toward him and the house. Cameron entered the house and found his sister on the floor bleeding from a head wound. Police arrived shortly thereafter. While talking to the police, Cameron saw Petitioner drive by in a black Monte Carlo. Cameron and the police cruised the area in search of the car. When they found the car, only the driver, Mr. Joseph Easter, was present.
Freddie Williams testified that, on the day of the shooting, he borrowed his cousin's old tan Bonneville and drove to the store. He saw Black, Petitioner, and a third person there and agreed to give them a ride. As they drove near the Cameron home, Petitioner or Black told him to stop the car and Williams did so. When he saw Cameron bend down as if to pick-up something, the shooting started. Williams testified that both Petitioner and Black were armed and fired shots. As Williams drove away, he heard Black state that he had dropped a clip. Williams dropped off his passengers before returning the car to his cousin.
Detroit Police Officer Keith Chisholm responded to the call about the shooting. He confirmed that he and Dennis Cameron drove around the neighborhood looking for the black Monte Carlo. When the found the car, driver Joseph Easter was the sole occupant.
Garett Williams also testified at trial. He stated that he was with Petitioner on August 30, 1994 and that Freddie Williams gave them a ride in his car that day. While they were driving, Garett bent down to tie his shoe and heard gunshots. He could not tell where the gunfire originated and did not see Petitioner with a gun.
Petitioner did not testify at trial. At the close of trial, the jury found Petitioner guilty of firstdegree premeditated murder and felony firearm. The trial court subsequently sentenced Petitioner to two consecutive terms of life imprisonment without parole and two years imprisonment on those convictions.
II. Procedural History
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, raising the same issue contained in the present habeas petition. The Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished, per curiam opinion. People v. Ethridge, No. 191245 (Mich.Ct.App. Feb. 13, 1998). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same issue, which was denied in a standard order. People v. Ethridge, No. 111876 (Mich. Nov. 24, 1998).
Petitioner filed the present habeas petition on November 23, 1999, asserting the following claim as grounds for relief:
He was prejudiced by the trial court's refusal to give an adverse inference instruction where the prosecution failed to produce the endorsed witness, and the record is devoid of due diligence attempts to secure the witness, was clear error and an abuse of discretion which deprived him of a fair trial and his constitutional rights to present a defense to confront and cross-examine the evidence against him, exercise the right of compulsory process, and due process of law.
Respondent filed an answer to the petition on July 3, 2000, asserting that it should be dismissed for lack of merit.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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)(1996).
In Williams v. Taylor, —U.S.—, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1)"was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id at 1522. "Under § 2254(d)(1)'s 'unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied _ U.S _ 119 S.Ct. 2403 (1999).
IV. Analysis
Petitioner claims that the trial court erred in refusing to give an adverse inference instruction as to the possible testimony of witness Joseph Easter, that the prosecution failed to exercise due diligence in trying to locate Easter, and that these failures violated his constitutional rights.
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1973). The prosecution in a criminal trial must make a good faith effort to produce relevant witnesses. See, e.g., Barber v. Page, 390 U.S. 719, 724-25 (1968). The standard for evaluating whether the prosecution has made a good faith effort to produce a witness is one of reasonableness. Ohio v. Roberts, 448 U.S. 56, 74 (1990).
The Michigan Court of Appeals considered this claim and concluded that the trial court did not err in refusing to give an adverse inference instruction. The Court of Appeals found that the prosecution exercised due diligence in attempting to secure the testimony of Joseph Easter and that Petitioner was not entitled to the requested instruction. See People v. Ethridge, No. 191245, *1 (Mich.Ct.App. Feb. 13, 1998).
This Court agrees and finds that the prosecution's efforts to secure Joseph Easter's appearance at trial were reasonable. The record reveals that Easter was served with a subpoena, which he signed. Additionally, a police officer attempted to contact Easter at his mother's home several times during a two-day period in an effort to speak with him. The officer was assured that Easter would appear at trial. Given this testimony, the Court concludes that the state court properly determined that the prosecution exercised due diligence in attempting to produce Easter. The Court also notes that Easter's proposed testimony involved events which occurred after the shooting, such that his testimony was of marginal relevance.
Moreover, even if the failure to produce Easter or provide an adverse inference instruction violated Petitioner's constitutional rights, Petitioner is still not entitled to relief. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also O'Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had substantial and injurious effect or influence upon jury's verdict). Harmless error analysis applies to jury instruction errors, see Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1837 (1999), as well as Confrontation Clause errors, see Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Given the testimony presented at trial, particularly that of Dennis Cameron and Freddie Williams, there was sufficient evidence for the jury to find Petitioner guilty of first-degree premeditated murder and felony firearm. Petitioner is thus not entitled to habeas relief.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claim presented. Accordingly,
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.