Opinion
No. 99-CV-73015-DT
February 2, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR INJUNCTIVE ORDER
I. Introduction
On June 14, 1999, Petitioner Raymond Gonzales, a state inmate currently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 18, 2000, Petitioner filed a "Letter/Motion for Injunctive Order to Place Habeas Corpus Petitioner in District of Presiding Judge. For the reasons set forth below, the Court shall deny both the petition and the motion.
II. Background
Petitioner's conviction stems from a traffic stop in Auburn Hills, Michigan on October 1, 1995. On that date, Police Officer Jeffrey Walker stopped a vehicle in a movie theater after he noticed an improper license plate on it. (Trial Tr. at 14). Petitioner was a back seat passenger in the vehicle, ( Id. at 18). An off duty Auburn Hills police officer who was leaving the theater, Officer David Chase, observed the situation, identified himself and then assisted Officer Walker. ( Id. at 46-47). Officer Chase testified that as the driver and front seat passenger were being removed from the vehicle, Petitioner appeared very nervous and agitated. ( Id. at 48-49). Officer Chase then saw Petitioner hide something in his underwear. ( Id. at 51-52). Petitioner was then ordered out of the vehicle, so that Officer Chase could conduct an outside pat-down of Petitioner. ( Id. at 53). Officer Chase testified that while patting Petitioner down for weapons he felt a hard object between Petitioner's buttocks, and subsequently discovered a bag containing a white, creamy colored hard substance, that Officer Chase believed to be crack cocaine. ( Id. at 54). The bag contained what was later determined to be 58.14 grams of crack cocaine. ( Id. at 89-91).
Petitioner was charged with possession with intent to deliver between 50 and 224 grams of cocaine. Petitioner was tried by a jury in Oakland County Circuit Court. Among the witnesses called to testify at trial, the prosecution called Officer Steve Groehn, who was qualified as an expert in the area of drug investigations. ( Id. at 98-100). Officer Groehn testified that the amount of crack cocaine found on Petitioner was consistent with a person intending to distribute it, rather than with a person merely using cocaine. ( Id. at 105-106). He also testified that the amount of drugs found on Petitioner would last even a heavy user almost two weeks, and that it was unlikely that a user would buy that much cocaine for personal use. ( Id. at 106).
Upon conclusion of the prosecution s case in chief, defense counsel made a motion for a directed verdict. ( Id. at 123-124). Defense counsel acknowledged that when taken in a light most favorable to the prosecution, the evidence could establish that Petitioner possessed the cocaine. However, Defense counsel contended that the prosecution had not established intent to distribute the cocaine. ( Id.). Finding that evidence had been presented at trial that the cocaine was for distribution, the trial court denied the motion for directed verdict. ( Id.)
After the prosecution and defense rested, the trial court instructed the jury on the charge of illegally possessing with the intent to deliver 50 to 224 grams of a mixture containing a controlled substance, cocaine. ( Id. at 146.) The trial court also instructed the jury, over objections from defense counsel, on the necessarily included offense of possession of cocaine between 50 and 224 grams. ( Id. at 125-126; 146). Petitioner was ultimately convicted of possession of controlled substance 50 to 224 grams of cocaine. ( Id. at 153). He was sentenced to ten to twenty years imprisonment.
Petitioner filed an appeal of right to the Michigan Court of Appeals, presenting the following claims:
I. Was it error for the trial court to admit the testimony of an alleged expert prosecution witness to describe the difference between possession of a controlled substance for personal use and delivery over the defendant-appellant's objection that such testimony would constitute a prohibited profile of a drug dealer?
II. Was it error for the trial court to deny the defendant-appellant's motion for a directed verdict, brought at the conclusion of the people's case in chief, on a charge of possession with the intent to deliver between 50 and 224 grams of cocaine, where the defendant-appellant argued that there had been no prima facie showing of the element of specific intent to deliver?
III. Was it error for the trial court to instruct the jury on the uncharged crime of possession of between 50 and 224 grams of cocaine where the prosecution requested such an instruction and where defense counsel objected to it?
IV. Was it error for the trial court to refuse to deviate below the mandatory minimum sentence of ten years where the defendant had been convicted of possession of between 50 and 224 grams of cocaine only and not for possession with the intent to deliver?
(Appellant's Br. at VI). The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Gonzales, No. 197877 (Mich.Ct.App. March 27, 1998).
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, presenting the same claims he had presented in his brief in support of his appeal. The Michigan Supreme Court denied leave to appeal. People v. Gonzales, No. 112347 (Mich. Jan. 26, 1999).
Petitioner then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, presenting the following claims for relief
I. Petitioner was denied a fair trial and deprived of 5th and 14th Amendments of the United States Constitution where the trial court abused its discretion by admitting the testimony of the prosecution expert witness, whereas that testimony eventually amounted to prohibited drug profile evidence.
II. Petitioner was denied a fair trial where the trial court did not grant defendant's motion for directed verdict on the original charge of possession with the intent to deliver 50-224 grams of cocaine.
III. Petitioner was denied a fair trial where the trial court erred by instructing the jury on uncharged crime of possession of 50-224 grams of cocaine.
(Pet. at 1).
In addition, after being transferred to another facility, on July 18, 2000, Petitioner filed a "Letter/Motion for Injunctive Order to Place Habeas Corpus Petitioner in District of Presiding Judge." In that motion, Petitioner asks this Court to issue an order to the Michigan Department of Corrections to house Petitioner within the district where his habeas corpus motion is pending. Petitioner claims that being housed at a facility within this district is very important towards his litigation in this Court, due to his "being able to receive direct support from family and friends supporting [him] with research and clerical skills." ( See Mot. for Injunctive Order at 2). Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254(d).
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 1521-22.
III. Discussion
Admission of Expert Testimony
Petitioner claims that he is entitled to habeas corpus relief because the trial court erred in permitting an expert in the area of drug investigations to testify. Petitioner contends that Officer Groehn's testimony at trial was impermissible drug profile evidence. He further contends that "the trial court abused its discretion in allowing the expert witness to testify to the `drug profile' which was given." (Pet. at 3).
In support of his position, Petitioner cites United States v. Quigley, 890 F.2d 1019 (8th Cir. 1989), a case where the Eighth Circuit disapproved of the use of drug profile evidence. The Sixth Circuit, however, has stated that "[l]aw enforcement officers may testify concerning the methods and techniques employed in an area of criminal activity and to establish `modus operandi' of particular crimes." United States. v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990)).
Moreover, it is well-established that "`federal habeas corpus review does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991), quoting Louis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 1302, 111 L.Ed.2d 606 (1990). The Sixth Circuit has held that "[i]n a federal habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law." Long v. Smith, 663 F.2d 22, 23 (6th Cir. 1981). "Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994).
Petitioner has failed to establish that the admission of expert testimony regarding drug trafficking was a constitutional violation. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
Denial of Motion for Directed Verdict
Next, Petitioner claims he was denied a fundamentally fair trial when the trial court erroneously denied his motion for a directed verdict. Petitioner contends that as the prosecution failed to present sufficient evidence to prove the "intent to deliver" element of the charge of possession with intent to deliver 50 to 224 grams of cocaine, the trial court erred in denying his motion for a directed verdict.
The due process clause of the Fourteenth Amendment to the United States Constitution requires the prosecution to prove each element of an offense beyond a reasonable doubt before a defendant can be convicted of that offense. In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Petitioner contends that his constitutional rights were violated because despite the prosecution's failure to present sufficient evidence as to intent, the trial court denied Petitioner's motion for a directed verdict. When reviewing such a claim, a federal habeas court is required to determine if the evidence presented was such that a rational trier of fact could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The Michigan Court of Appeals rejected this claim on appeal, reasoning that the evidence presented could support an inference that Petitioner possessed the cocaine with the intent to deliver. In doing so the court stated:
[D]efendant argues that the trial court erred by failing to grant his motion for a directed verdict at the close of the prosecution's case-inchief . . . This Court must consider the evidence presented by the prosecutor, up to the time the motion was made, in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the charged crime were proven beyond a reasonable doubt . . .
To support a conviction for possession with the intent to deliver more than 50 grams, but less than 225 grams of cocaine, the prosecution must prove beyond a reasonable doubt: (1) that the recovered substance was cocaine, (2) that the cocaine was in a mixture weighing over 50 grams, but less than 225 grams, (3) that defendant was not authorized to possess the substance, and (4) that defendant knowingly possessed the cocaine with the intent to deliver. People v, Lewis, 178 Mich. App. 464, 468 (1989). Defendant argues that the prosecution failed to introduce evidence to support the requisite element of the intent to deliver the narcotic which was required for a conviction of the crime for which he was charged.
Circumstantial evidence and the reasonable inferences which arise from that evidence can constitute satisfactory proof of the elements of the crime. . . . Intent can be inferred from all the facts and circumstances, . . . and because of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient. Actual delivery of a controlled substance is not required to prove intent to deliver. People v Wolfe, 440 Mich. 508, 524. amended 441 Mich. 1201 (1992). Intent to deliver may be inferred from the quantity of narcotics in the defendant's possession, the manner in which the narcotics were packaged, and from other circumstances surrounding the wrest. Id.
Given the large quantity of cocaine possessed by defendant, coupled with the testimony of the prosecution's expert witness, a reasonable inference could have been drawn that defendant possessed an intent to deliver cocaine. Defendant possessed over 58.14 grams of cocaine which is approximately two ounces. According to the prosecution's expert witness, such a large quantity does not suggest personal use, The expert opined that, if an individual attempted to smoke over 50 grams of cocaine at one time, he would most likely overdose. Two ounces of cocaine has a street value of approximately $2,000. The typical price for a street purchase of crack cocaine is approximately $20 per rock. Furthermore, no drug paraphemalia was discovered on defendant's person or in the vehicle in which he was riding, which suggests no plan of immediate personal use. Therefore, we find that the trial court did not err in denying defendant's motion for a directed verdict.People v. Gonzales, slip op. at 2-3.
This Court agrees that sufficient evidence establishing intent to deliver was presented at trial such that a rational trier of fact could find guilt beyond a reasonable doubt. As such, the evidence supported submitting the charge of possession with intent to deliver to the jury. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.
Jury Instructions
Finally, Petitioner claims he is entitled to habeas corpus relief because the trial court erred in instructing the jury on the lesser included offense of possession of a controlled substance. Generally, a claim that a state trial judge gave erroneous jury instructions is not cognizable in a federal habeas action unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62 at 72, 112 S.Ct. at 482 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned', but that it violated some [constitutional] right.'" Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. at 72, 112 S.Ct. 475 (quoting Cupp v. Naughten, 414 U.S. at 94 S. Ct. at 400-01).
In considering this issue, the Michigan Court of Appeals, stated as follows:
[D]efendant argues that the trial court erred by instructing the jury on the lesser included offense of possession of a controlled substance. According to defendant, possession of cocaine is not a necessarily included offense of possession of cocaine with intent to deliver because the penalties for the two offenses are exactly the same. We disagree.
In general, the duty of the trial court to instruct with regard to lesser included offenses is determined by the evidence. . . . If evidence has been presented that would support a conviction of a lesser included offense, refusal to give a requested instruction regarding the lesser include[d] offense is error requiring reversal . . . When an offense is necessarily included, the evidence will always support the lesser offense if it supports the greater.
Possession of cocaine is a necessarily included lesser offense of possession with intent to deliver the same amount of cocaine, because the only distinguishing characteristic is the additional element of the intent to deliver. . . . Because evidence exists on the record to support the charge of possession and this same evidence must be used to establish defendant's guilt of possession with intent to deliver, the trial court did not err by instructing the jury on the elements of the necessarily included offense of possession of cocaine.People v. Gonzales, slip op. at 3.
Petitioner argues that the trial court erred in instructing the jury on the lesser included offense of possession of cocaine because he did not receive notice of that charge. "A defendant's due process rights may be violated if the jury is instructed on an offense not included in the indictment and the defendant did not have notice that he might be charged with that offense." Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000). However "an instruction on a lesser included offense may be given over the defendant's objection, because the defendant has sufficient notice, when charged with the greater offense, that he may also have to defend against the lesser charge." Id. As noted above, under Michigan law, possession of a controlled substance is a necessarily included lesser offense of possession with intent to deliver. Therefore, Petitioner's due process rights were not violated by the simple possession instruction.
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to his final claim.
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that Petitioner's Motion for Injunctive Order to Place Habeas Corpus Petitioner in District of Presiding Judge is DENIED as moot.