Opinion
Case No. 00-CV-7422A-DT
September 25, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Elizondo Gonzales, a state prisoner currently confined at the Kinross Correctional Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of second-degree murder following a jury trial in the Oakland County Circuit Court in 1996. He was sentenced to 22 to 50 years imprisonment.
In his pleadings, Petitioner raises claims concerning the trial court's jury instructions, the sufficiency of the evidence, and prosecutorial misconduct. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. Facts
Petitioner's conviction stems from the beating of George Knight on October 1, 1995 outside of the River Rock Cafe in Waterford, Michigan, which resulted in Knight's death the following day. Petitioner was charged with open murder. The Michigan Court of Appeals described the relevant facts as follows:
At trial, several witnesses testified that defendant and others were involved in an altercation in the parking lot of a bar. Defendant struck the victim, George Knight, knocking him to the ground. As Knight lay supine and motionless on the ground, defendant delivered several hard kicks to Knight's head. The medical examiner testified that Knight's death was the result of blunt force head trauma. Knight's neck was twisted so violently that his arachnoid artery stretched, then tore, causing internal bleeding, brain herniation and, ultimately, Knight's death. People v. Gonzales, No. 209417, 1 (Mich.Ct.App. July 2, 1999) (unpublished).
Lee Webber, George Knight's step-brother, testified at trial that as he and Knight were leaving the River Rock Cafe during the early morning hours on October 1, 1995, a blue Chevrolet Cavalier swerved toward Knight nearly hitting him. Knight cussed at the car's occupants. The car then circled around and stopped near Knight. Three people exited the car. One man struck Knight's friend. The other punched Knight, knocked him to the ground, and then kicked him in the head repeatedly. Knight did not fight back. The men eventually fled the scene in the Cavalier. Webber could not positively identify Petitioner, but described Knight's attacker as a Hispanic male with a dark complexion and dark hair.
Ryan McAllister, Paul Kuczynski, Tina Snitchler, and Terajai Houston witnessed the altercation at the bar that night. They each identified Petitioner as the man who struck Knight and repeatedly kicked him in the head while Knight lay motionless on the ground. Kuczynski described Petitioner's kicks as the way in which a person kicks a football. Snitchier and Houston both testified that Petitioner's kicks were hard and that Petitioner put his whole body into them. Petitioner did not stop kicking Knight until someone said that the police were on their way.
Other witnesses who testified at trial were less clear on Petitioner's involvement in Knight's death. Reginald Howard testified that he saw Petitioner kicking a man during the altercation, but stated that Petitioner may have been kicking someone other than Knight. Tanya Mihay testified that she saw one man kicking a man who was standing and that she saw Knight on the ground, but did not see anyone kick Knight. Mihay could not recall seeing Petitioner at the scene.
Steven LaRousa testified that he saw the driver of the Cavalier, who he identified as Petitioner, strike three men, including Knight. He said that Petitioner punched the victims and then fled. LaRousa did not see Petitioner kick anyone, but testified that he saw several people surround and kick the men who had fallen on the ground.
Police testimony established that officers effectuated a stop of the blue Cavalier a few blocks from the bar. Petitioner and a man named Nate Wilkerson exited the vehicle, but Petitioner fled on foot. Police saw Petitioner walking on a sidewalk later that morning and attempted to question him, but he again ran away. The officers gave chase, apprehended Petitioner, and placed him under arrest. At the police station, Petitioner did not present any injuries other than those consistent with the scuffle leading to his arrest.
The medical examiner testified that George Knight died of blunt force head trauma. He stated that the blows to Knight's head caused an artery and surrounding muscle to tear, resulting in hemorrhage and brain swelling. Knight also had some scrapes on his face and left side, but did not have injuries to his chest, abdominal, or pelvic areas. Such trauma was consistent with several hard kicks to the head while lying in a supine position, and could not have been caused by a fall. Knight had a blood alcohol level of .21.
Petitioner did not testify at trial, but presented an additional witness to testify on his behalf. Pam Fisher testified that she saw a Hispanic man with a shaved head kick Knight while he was on the ground. She also said that other men were involved in the altercation that evening and that she saw three men doing some kicking. She said that she did not see anyone else kick Knight during the fight. Fisher also testified that she told the man with the shaved head to leave Knight alone, but he threatened to do the same thing to her if she did not get out his way. The man then left in the passenger seat of the blue Cavalier. When the police arrived, Fisher provided them with the Cavalier's license plate number. At trial, Fisher did not identify Petitioner as the man who kicked Knight, but testified that she could not say that he was not the perpetrator either.
At the close of trial, the jury found Petitioner guilty of second-degree murder.
II. Procedural History
Following trial, Petitioner filed a motion for a judgment notwithstanding the verdict or for a new trial with the trial court, which was denied. People v. Gonzales, No. 95-141986-FC (Oakland Co. Cir. Ct. Jan. 6, 1998). The trial court subsequently sentenced Petitioner as a second habitual offender to 22-40 years imprisonment.
Petitioner filed an appeal as of right with the Michigan Court of Appeals, asserting that: (1) the trial court denied him a fair trial by requiring the jury to return a verdict of second-degree murder without considering whether the additional factor supporting voluntary manslaughter was satisfied, (2) the prosecutor presented insufficient evidence to support his second-degree murder conviction, (3) the submission of the first-degree murder charge violated his due process rights because the prosecution presented no evidence to support such a conviction, (4) the prosecutor's misconduct, exacerbated by improper evidentiary rulings, denied him a fair trial and his right to confrontation, and (5) his sentence is disproportionate to the offense and the offender. The Court of Appeals affirmed Petitioner's conviction and sentence. People v. Gonzales, No. 209417 (Mich.Ct.App. July 2, 1999) (unpublished). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court raising the same issues, which was denied. People v. Gonzales, No. 115335 (Mich. Feb. 29, 2000) (unpublished).
Petitioner filed the instant petition on September 21, 2000 raising the first four claims presented in his state appeals. Respondent filed an answer to the petition on March 27, 2001 and submitted the necessary state court records on May 29, 2001.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 22 U.S.C. 12254, 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. 52254(d)(1996).
In Williams v. Taylor, 529 U.S. 362 (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 by the 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 412-13.
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 411. "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 independant judgement 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 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
Lastly, a federal habeas court must presume that state court factual determinations are correct. 26 U.S.C. § 254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Discussion
A. Jury Instruction Claims
Petitioner's first and third claims involve alleged jury instruction errors. In his first claim, Petitioner asserts that the trial court erred in instructing the jury on second-degree murder and voluntary manslaughter by requiring a verdict on second-degree murder before consideration of the mitigating factors which would reduce the offense to voluntary manslaughter. In the third claim, Petitioner asserts that the trial court erred by giving an instruction on first-degree murder because there was insufficient evidence to support such a charge. Petitioner contends that the instruction caused the jury to render a compromise verdict.
Respondent contends that Petitioner's jury instruction claims are barred by procedural default because Petitioner failed to object to the court's instructions at trial. 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). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85.
In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state-court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Y1st v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion discussing the jury instruction issues. In dismissing Petitioner's challenges to those jury instructions, the Court of Appeals relied upon a state procedural bar — the failure to object to the instructions at trial. People v. Gonzales, No. 209417, 1-2 (Mich.Ct.App. July 2, 1999). The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. See Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the Michigan Court of Appeals dismissed petitioner's jury instruction claims based upon procedural default — his failure to object to those instructions at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-65 (6th Cir. 1996). In this case, Petitioner neither alleges nor establishes cause for his failure to object to the jury instructions at trial. The court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. See, e.g., Smith v. Murray, 477 U.S. 527, 533 (1966); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Further, Petitioner has not established that a fundamental miscarriage of justice has occurred in this case. The testimony presented at trial, particularly that of witnesses Lee Webber, Ryan McAllister, Paul Kuczynski, Tina Snitchler, and Terajai Houston, established Petitioner's guilt of second-degree murder. His jury instruction claims are thus barred by procedural default and do not warrant habeas relief.
B. Insufficient Evidence Claim
Petitioner next claims that he is entitled to habeas relief because there was insufficient evidence of identification presented at trial to support his conviction. In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on 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." Id. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, Huynh v. King, 95 F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995), this court must determine whether the state court's application of the Jackson standard was reasonable.
Under Michigan law, second-degree murder is the unjustified and unexcused killing of a human being with malice. To prove malice, the prosecution must establish that the defendant has the intent to kill or do great bodily harm, or has created and disregarded a very high risk of death or great bodily harm. See People v. Bailey, 207 Mich. App. 8, 9 (1994). Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. See, e.g., People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).
Viewing the evidence in a light most favorable to the prosecution, the Michigan Court of Appeals concluded that sufficient evidence was presented to support Petitioner's conviction. See People v. Gonzales, No. 209417 at 2-3. Having carefully reviewed the record, this court concludes that the Court of Appeals' determination is consistent with federal law and a reasonable application thereof. Witness testimony established that, following a verbal exchange, Petitioner knocked George Knight down and repeatedly kicked him in the head as he lay motionless on the ground, resulting in Knight's death from blunt force head trauma. Given such evidence, a rational trier of fact could find that the prosecution established beyond a reasonable doubt that Petitioner was guilty of second-degree murder.
Petitioner's insufficient evidence claim essentially challenges the inferences that the jury drew from the testimony presented at trial and challenges the weight to be accorded certain pieces of evidence. However, it is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact. resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969.70 (6th Cir. 1983). Given the evidence at trial, the court concludes that a rational trier of fact could have found that Petitioner was guilty of second-degree murder beyond a reasonable doubt. Petitioner is not entitled to relief on this claim.
C. Prosecutorial Misconduct Claims
Lastly, Petitioner claims that the prosecutor engaged in various forms of misconduct which denied him a fair trial. For example, Petitioner claims that the prosecutor improperly appealed to the jury's sympathy by referring to the victim's defenseless state during the incident and by asking the victim's step-brother how he felt during the attack, made improper comments during jury voir dire and opening arguments, used objections in a harassing manner, elicited hearsay testimony, acted "unrestrained and intemperate" when engaged in discussions at the bench, and used words such as "savagery" and "brutal" to describe the incident.
The United States 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). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Factors to be considered in weighing the extent of a prosecutor's misconduct are:
the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.'" Id. (citations omitted).
The Michigan Court of Appeals conducted a detailed review of Petitioner's prosecutorial misconduct claims and concluded that Petitioner was not denied a fair trial by the alleged misconduct. The Court of Appeals found that Petitioner failed to object to some of the alleged misconduct during trial, that Petitioner had not demonstrated how he was prejudiced by other instances of alleged misconduct, and that the prosecutor's challenged actions were not improper under the circumstances presented. See People v. Gonzales, No. 209417 at 3-9 Having reviewed the record, this court finds that the Michigan Court of Appeals' decision is consistent with federal law and constitutes a reasonable application of that law. As fully explained by the Court of Appeals in its opinion, Petitioner was not denied a fair trial by the prosecutor's actions in this case.
Moreover, even if the challenged conduct rose to the level of a constitutional violation, 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). Given the witness testimony presented at trial, as discussed supra, there was sufficient evidence for the jury to find Petitioner guilty of second-degree murder. The prosecutor's conduct, even if improper, did not have a substantial and injurious effect or influence on the jury's verdict. Petitioner is not entitled to relief on this claim.
V. Conclusion
For the reasons stated, the court concludes that Petitioner is not entitled to habeas relief on the claims presented.
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.