Opinion
CASE NO. 99-CV-70390-DT
May 10, 2000
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is before the Court on petitioner Shannon Fowler's pro se habeas corpus petition under 28 U.S.C. § 2254. Petitioner is an inmate at the Michigan Reformatory in Ionia, Michigan.
In 1994, a jury in Recorder's Court for the City of Detroit, Michigan found Petitioner guilty of first-degree felony murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony ("felony firearm"), M.C.L.A. § 750.227b; M.S.A. § 28.424(2). The convictions arose from the fatal shooting of a 76-year-old woman during an attempted bank robbery in Detroit, Michigan. The prosecutors theory was that Petitioner aided and abetted his co-defendant, Herbert Dunnings ("Double D"), who shot the victim with an assault rifle during the attempted robbery.
The trial court sentenced Petitioner to two years in prison for the felony firearm conviction and to a consecutive term of life in prison without the possibility of parole for the murder conviction. Petitioner raised his first habeas claim in his appeal of right. The Michigan Court of Appeals affirmed Petitioner's conviction, and the Michigan Supreme Court denied leave to appeal. See People v. Fowler, No. 175213 (Mich.Ct.App. Apr. 26, 1996); People v. Fowler, No. 106578 (Mich.Sup.Ct. Mar. 28, 1997).
Petitioner subsequently filed a motion for relief from judgment in which he raised his second and third habeas claims. The trial court denied his motion on May 13, 1997. The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's subsequent applications for leave to appeal. See People v. Fowler, No. 204607 (Mich.Ct.App. Jan. 6, 1998); People v. Fowler, No. 111345 (Mich.Sup.Ct. August 28, 1998).
On February 2, 1999, Petitioner filed the pending habeas corpus petition in which he alleges the following grounds for relief:
1. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO CONVICT PETITIONER OF FELONY MURDER.
2. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FARED TO GIVE PETITIONER'S THEORY OF DEFENSE BUT GAVE THE PROSECUTION'S THEORY OF DEFENSE.
3. CAN `CAUSE' BE ESTABLISHED WHERE PETITIONER WAS DENIED ACCESS TO HIS TRIAL TRANSCRIPTS UNTIL AFTER THE COURT OF APPEALS MADE A DECISION ON APPEAL BY RIGHT.
Respondent argues in an answer to the habeas petition filed through counsel that Petitioner has failed to establish entitlement to habeas relief.
II. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA"), govern this case because Petitioner filed his habeas petition after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA altered the standard of review that federal courts must consider when deciding whether to grant habeas corpus petitions brought under 28 U.S.C. § 2254. Felker v. Turpin, 518 U.S. 651, 654 (1996). The altered standard of review "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the Writ of Habeas Corpus only if the state court's adjudication of the petitioner's claim on the merits —
(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)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from (the Supreme) Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523.
III. Review of Petitioner's Claims
A. Sufficiency of the Evidence
Petitioner's first claim is that the evidence presented at trial was insufficient to convict him of first-degree felony murder because the prosecutor failed to prove the element of malice. Petitioner's theory at trial was that the shooting was not foreseeable and that Petitioner's codefendant committed an accidental shooting.
1. The Law
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). After Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original).
This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. In Michigan, the elements of felony murder are: "(1) [t]he killing of a human being (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in MCL 750.316; MSA 28.548." People v. Thew, 201 Mich. App. 78, 85 (1993). Robbery is one of the felonies enumerated in M.C.L.A. § 750.316; M.S.A. § 28.548.
2. The Evidence
Witnesses testified at Petitioner's trial that, when the bank opened on July 1, 1993, many people were present cashing their retirement and government assistance checks. Shortly after the security guard left the premises, two masked men entered the bank. The witnesses beard one gunshot saw the victim fall to the floor, and then observed the masked men leave the bank and enter a black car. Someone outside the bank observed the license plate on the car and reported it to the police.
No one identified Petitioner as one of the masked men, but his participation in the attempted robbery was not in dispute. In fact Petitioner's admissions to the police on the day after the attempted bank robbery were read into the record. See T at 971-75.
Petitioner's statement to the police described his involvement in the incident as follows. He contacted an accomplice named DX on the day before the attempted robbery. Then he picked up DX, and the two of them rode around looking at credit unions, banks, and other places with money. DX picked out the bank at Grand River and West Grand Boulevard as a feasible location for the robbery. The next morning, he picked up DX in his car. They returned to Petitioner's house where he, DX, and "Double D" got bandannas and guns. DX took the other two men to the bank in DX's car, which he stored at Petitioner's house. DX parked in front of the bank and waited in the car. Double D, who was carrying an assault rifle with a 30-round banana clip, went in the bank first to secure the place. Petitioner followed, carrying a .38 caliber black snubnose. His (Petitioner's) job was to go to the window and get the money. He had his back turned, and before getting to the window, he heard a shot. He turned around, expecting to see a guard or someone else. He saw everybody hit the floor; he almost did, too. He was dazed for a second. Then, he looked at Double D, shook his head, and walked out of the bank. Double D followed him. They got in the car and DX drove them back to Petitioner's place where they changed clothes. He (Petitioner) returned to the bank in his own car, looking for am ambulance, and he later listened to the news to determine if anyone had been shot. See id. at 972-73.
Petitioner also informed the police that, during the incident, he wore white gloves, a bandanna over his face, and a headset for communication with DX in the car. Petitioner admitted that he owned the guns which he and Double D carried and that, after the attempted robbery, he asked a man named Rick to move the guns. He claimed that he threw his clothes and the headsets in a dumpster. When asked by the police whether he had anything to add to his statement, Petitioner responded that it was an accident and that he was truly sorry. See id. at 973-75.
A firearms expert testified that the assault rifle had fired the fatal shot and that the rifle was fully functional, not damaged in any way. The expert also testified that the rifle would not fire unless the safety device was off, the gun was cocked, and the trigger was pulled. See id. at 870-94.
In summary, the evidence suggested that Petitioner planned a robbery for a day and time when a large number of vulnerable people would be present to cash checks. He also coordinated the preparation for the robbery. Although his co-defendant apparently fired the fatal shot, Petitioner owned the murder weapon and supplied it to his co-defendant. He also armed himself with a dangerous weapon, which he owned. He likely anticipated violence because robbery involves an element of force or coercion and he expected to see a security guard. The jury could have concluded from the evidence that Petitioner created a high risk of death or great bodily harm, knowing that death or great bodily harm was the probable result.
3. The State Court Decision
The Michigan Court of Appeals adjudicated Petitioner's sufficiency-of-the-evidence claim as follows:
After viewing the evidence in a light most favorable to the prosecution, we believe that a rational trier of fact could find that the prosecutor proved the elements needed to establish felony murder beyond a reasonable doubt. People v. Lugo, 214 Mich. App. 699, 710; 542 N.W.2d 921 (1995), citing People v. Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748 (1992). Here, defendant's accomplice in this bank robbery pointed a rifle at the victim and shot her as defendant was obtaining money from the tellers. See People v. Thew, 201 Mich. App. 78, 85-86; 506 N.W.2d 547 (1993). We reject defendant's assertion that the prosecutor failed to demonstrate that he had the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm in light of the circumstantial evidence and the reasonable inferences arising from the evidence. People v. Hutner, 209 Mich. App. 280, 282; 530 N.W.2d 174 (1995). Indeed, the prosecutor presented evidence that defendant provided his accomplice with the rifle and ammunition used to kill the victim and that the gun did not discharge as a result of a mechanical or other malfunction. Thus, reasonable jurors could conclude that defendant intentionally set in motion an act that would probably cause death or great bodily harm, thereby negating any finding that the victim's death was purely accidental. See People v. Aaron, 409 Mich. 672, 728-729: 299 N.W.2d 304 (1980). The evidence against defendant was, therefore, sufficient to convict him of first-degree murder. Lugo, supra.Fowler, No. 175213, at 1.
Although the Court of Appeals did not rely on Jackson in its opinion, it used the same standard. Its conclusion — that the evidence was sufficient to sustain the murder conviction — was a reasonable application of Jackson. Moreover, the AEDPA "mandates that federal courts give deferential review to state court decisions on sufficiency of the evidence claims." Gomez v. Acevedo, 106 F.3d 192, 193-94 (5th Cir. 1997), vacated on other grounds, 522 U.S. 801 (1997). The Court concludes that Petitioner is not entitled to the writ of habeas corpus on the basis of his first claim. 28 U.S.C. § 2254(d)(1).
B. The Jury Instructions
Petitioner's second claim is that the trial court erred when it failed to read Petitioner's theory of the defense during a re-reading of the jury instructions on the elements of felony murder. The trial court gave the prosecution's aiding and abetting theory of the case during the re-reading, but not the defense theory that the shooting was accidental. See T at 1266-73.
Respondent argues that Petitioner's claim is barred by the trial court's reliance on Petitioner's state procedural default of failing to object to the jury instructions and Petitioner's failure to show cause and prejudice or a miscarriage of justice. A procedural default in the habeas context is "a critical failure to comply with state procedural law. . . ." Trest v. Cain, 522 U.S. 87, 89 (1997). The doctrine of procedural default provides that:
[i]n 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). When analyzing a procedurally defaulted claim, the Court must consider:
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional alter.White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000).
1. The State Procedural Rule
The relevant state procedural rule in this case is that a criminal defendant must object to the jury instructions at trial in order to preserve his claim. See People v. Van Dorsten, 441 Mich. 540, 544-45 (1993) (quoting People v. Kelly, 423 Mich. 261, 271-72 (1985)). "Relief will be granted absent an objection only in cases of manifest injustice." Id. Petitioner failed to comply with the state procedural rule by not objecting at trial to the instructions as re-read to the jury. See T at 1274.
2. Enforcement of the Rule
The trial court enforced the procedural rule by adjudicating Petitioner's claim as follows:
[Petitioner] now files this Motion for Relief from Judgment alleging that this Court did not fairly re-instruct the jury on the felony-murder charge, because it did not give defendant's theory of the case.
Counsel did not object to these jury re-instructions. Accordingly, relief will be granted only if manifest injustice has resulted from these re-instructions. People v. Van Dorsten, 441 Mich. 540, 544-545; 494 N.W.2d 737 (1993). Upon review of the re-instructions, this Court finds that they fairly presented the issues to be tried and sufficiently protected the defendant's fights. People v. Wolford, 189 Mich. App. 478, 481; 473 N.W.2d 767 (1991). Accordingly, no manifest injustice resulted from the re-instructions.People v. Fowler, No. 93-7934 (Recorder's Ct. May 13, 1997).
The trial court's alternative holding under a miscarriage-of-justice standard does not preclude this Court from concluding that Petitioner's claim is procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998), cert. denied, ___ U.S. ___, 120 S.Ct. 110 (1999). Moreover, neither the Michigan Court of Appeals, nor the Michigan Supreme Court set aside this decision and adjudicated Petitioner's claim on the merits. Thus, the last state court to render a reasoned judgment on Petitioner's second claim "clearly and expressly" stated that its judgment rested on a state procedural bar. Harris, 489 U.S. at 263; see Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (concluding that a court must "look through" unexplained orders to the last reasoned decision to determine the basis for the judgment).
3. Adequate and Independent State Ground: Cause and Prejudice
The state court's reliance on Petitioner's failure to object at trial was an adequate and independent state ground for foreclosing review of Petitioner's claim. 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). Furthermore, the contemporaneous objection rule was firmly established and regularly followed by the time of Petitioner's trial. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Petitioner therefore must show cause for his procedural default and prejudice or that a fundamental miscarriage of justice will occur if the Court declines to review his defaulted claims on the merits.
Petitioner attempts to establish "cause" by stating in his third "claim" that he was unable to acquire the transcript of trial until after the Michigan Court of Appeals rendered its decision in the appeal of right. As Respondent points out, Petitioner's inability to acquire the trial transcript does not explain why be failed to object to the jury instructions at trial. The Court, therefore, concludes that Petitioner has not established cause for his state procedural default. The Court need not determine if Petitioner was prejudiced by the alleged violation of federal law because he has not shown cause for his noncompliance with a state procedural rule. See Smith v. Murray, 477 U.S. 527, 533 (1986); Isaac, 456 U.S. at 134 n. 43.
The only remaining question is whether this Court's failure to consider Petitioner's second claim on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing 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 v. Carrier, 477 U.S. 478, 496 (1986). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. U.S., 523 U.S. 614, 624 (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, 5113 U.S. at 324.
Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented at trial. Therefore, his state procedural default of failing to make a contemporaneous objection to the jury instructions bars habeas review of his second claim.
IV. Conclusion
Petitioner's first claim has no merit, and his second claim is barred by the doctrine of procedural default. Petitioner's third claim is not a substantive claim for relief Accordingly, the Court DENIES the petition for a writ of habeas corpus.