Opinion
No. 12-1225
07-10-2012
Carl HALL, Petitioner-Appellant, v. Millicent WARREN, Warden, Respondent-Appellee.
ORDER
Carl Hall, a Michigan prisoner proceeding pro se, appeals the district court's judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Hall has filed a motion for a certificate of appealability (COA) in this court, see Fed. R. App. P. 22(b), and a motion to proceed in forma pauperis (IFP) on appeal.
Following a 2002 bench trial, Hall was convicted of assault with intent to commit great bodily harm and possession of a firearm during the commission of a felony, and the trial court sentenced Hall as a fourth-offense habitual felony offender to life imprisonment for the assault and to five years in prison for the felony-firearm offense. People v. Hall, No. 242369, 2003 WL 22961700, at *1 (Mich. Ct. App. Dec. 16, 2003). On direct appeal, the Michigan Court of Appeals vacated and remanded for resentencing, concluding that the trial court erred in failing to state a "substantial and compelling reason" for departing from the guidelines range and in finding that the guidelines did not apply to habitual-offender sentences. Id.
On remand, the trial court again sentenced Hall to life imprisonment, observing that, although the guidelines took into account the number of Hall's prior convictions, they did not account for the nature of those convictions. People v. Hall, No. 254615, 2005 WL 3050446, at *1 (Mich. Ct. App. Nov. 15, 2005). On appeal of this sentence, the Michigan Court of Appeals affirmed, concluding that the trial court did not abuse its discretion in emphasizing that Hall has "repeatedly engaged in assaultive offenses with firearms, and had done so in this case after being given an opportunity to reform his conduct." Id. at *2. The Michigan Supreme Court denied Hall's application for leave to appeal. People v. Hall, 477 Mich. 877, 721 N.W.2d 592, 592 (2006).
Hall then filed a Michigan Court Rule 6.500 motion for relief from judgment, arguing that: the evidence was insufficient to support his assault conviction; the trial court abused its discretion in considering Hall's prior bad acts as evidence of his intent to commit great bodily harm; and both trial and appellate counsel performed ineffectively. After reviewing the merits of the claims that Hall had not previously raised, the trial court concluded that those claims were waived because, under Michigan Court Rule 6.508(D), Hall had not shown "good cause" for failing to raise those issues on appeal. The Michigan Court of Appeals and Michigan Supreme Court denied Hall's applications for leave to appeal because he had "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)."
Hall next filed his § 2254 petition pro se, arguing that: (1) the Michigan Court of Appeals violated the law-of-the-case doctrine in Hall's second appeal by upholding the reimposition of a life sentence after the Court of Appeals had held, in Hall's first appeal, that such a sentence was "disproportionate"; (2) the evidence was insufficient to support his assault conviction; (3) the trial court abused its discretion by admitting evidence of prior bad acts to prove Hall's intent to do great bodily harm; (4) appellate counsel performed ineffectively by failing to raise trial counsel's ineffective assistance as an issue on appeal, failing to file a motion for a new trial based on insufficient evidence, failing to raise the issue of prior bad-acts evidence, and failing to "timely communicate" with Hall about his appeal; and (5) trial counsel performed ineffectively by failing to argue that the verdict was against the great weight of the evidence and failing "to place the prosecution['s] case to a meaningful adversarial testing." The district court issued an opinion and order denying Hall's petition, concluding that his law-of-the-case argument was not a cognizable constitutional claim; that, in any event, the law-of-the-case doctrine did not apply to the sentencing issue in Hall's case; and that Hall's remaining claims were not presented on direct appeal, were procedurally defaulted, and were in any event without merit. The court denied Hall a COA.
A COA will issue only if the petitioner has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies a claim on procedural grounds without reaching its underlying constitutional merit, the petitioner must demonstrate that reasonable jurists "would find it debatable whether the petition states a valid claim of the denial of a constitutional right and ... whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Hall's COA application is devoted almost entirely to his law-of-the-case claim. He disputes the district court's conclusion that this claim is not a cognizable constitutional one, asserting that the United States Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), that "[t]he doctrine of collateral estoppel applies to criminal proceedings."
Hall has oversimplified Ashe, which was in essence a Double Jeopardy case. The habeas petitioner in Ashe was one of several men charged in the armed robbery of a second group of men who had been playing poker. See Ashe, 397 U.S. at 437-38, 90 S.Ct. 1189. In his first trial, Ashe was tried for robbing a specific poker player but was acquitted, apparently because the jury found that the evidence was insufficient to establish his identity as one of the robbers. Id. at 439, 90 S.Ct. 1189. The prosecution then recharged and retried Ashe for robbing a second specific poker player, this time presenting stronger evidence of Ashe's identity, and the jury convicted him. Id. at 439-40, 90 S.Ct. 1189. The specific question before the Supreme Court was whether the collateral-estoppel doctrine prevented the State from relitigating the issue of Hall's identity in a criminal proceeding—a question the Supreme Court answered in the affirmative—but the "ultimate question ... [was] whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy." Id. at 445, 90 S.Ct. 1189. The Court held that it was, and that Ashe's conviction following a second trial violated his double-jeopardy rights. Id. at 445-47, 90 S.Ct. 1189.
Hall's case is distinguishable. He was not acquitted and retried, but was instead merely resentenced. Hall, 2003 WL 22961700, at *1. In his first appeal, the Michigan Court of Appeals reasoned that, in the circumstances before it, in which the trial court had failed to state a "substantial and compelling reason" for its departure and erroneously concluded that the guidelines did not apply to habitual-offender sentences, "the sentence of life imprisonment is disproportionate," and it remanded for resentencing. Id. On remand, the trial court again imposed a life sentence, "observing that the guidelines took into account the number of defendant's previous convictions, but did not consider the nature of those convictions." Hall, 2005 WL 3050446, at *1. The trial court noted that Hall had three prior convictions involving assaultive conduct with a firearm. Id. at *1, 2. The Court of Appeals affirmed the sentence imposed on remand, concluding that "[t]he trial court was entitled to find that the nature of defendant's prior convictions was not given adequate weight in the calculation of the guidelines" and that the conduct represented by those convictions was "objective and verifiable." Id. at *2.
The Double Jeopardy Clause protects individuals from second prosecutions for the same offense after acquittal, second prosecutions for the same offense after conviction, and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Hall's law-of-the-case contention does not fall into any of these double-jeopardy categories. He is merely arguing that, in his second appeal, the Michigan Court of Appeals was bound by its determination in the first appeal that his life sentence was "disproportionate." For at least two reasons, Hall has failed to make a substantial showing of the denial of a constitutional right as to this claim. See 28 U.S.C. § 2253(c)(2). First, the Michigan Court of Appeals did not preclude the trial court from imposing a life sentence on remand, but merely cited errors that the trial court had committed in imposing the first sentence and remanded the case to the trial court in order to remedy the errors in its decision. Second, and far more important, Hall has cited no decisional authority —and this court is aware of none—to suggest that a state appellate court's alleged failure to adhere to the state's law-of-the-case doctrine with respect to a sentencing matter states a cognizable constitutional claim in a § 2254 proceeding. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (habeas court limited to deciding whether conviction violated Constitution or laws of United States). Hall has not made a substantial showing of the denial of a constitutional right as to this claim. See 28 U.S.C. § 2253(c)(2).
In his COA application, Hall only summarily lists the four other claims he set forth in his § 2254 petition, and he summarily contends that these claims "have been properly presented before the State court." He does not brief the merits of the claims, nor does he specifically challenge the district court's conclusion that these claims were procedurally defaulted. He also makes no assertion of cause and prejudice to excuse a procedural default. Therefore, Hall has failed to preserve these claims for appeal. See Jackson v. United States, 45 F. Appx 382, 385 (6th Cir. 2002); see also Geboy v. Brigano, 489 F.3d 752, 766-67 (6th Cir. 2007); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991).
In any event, the district court properly concluded that the claims were procedurally defaulted, with the exception of his claim of ineffective assistance of appellate counsel (IAAC). See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Guilmette v. Howes, 624 F.3d 286, 291-92, 299 (6th Cir. 2010). Insofar as Hall has IAAC as cause to excuse his default of those remaining claims, see Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003), his IAAC argument itself is unavailing because, as the district court also concluded, the underlying claims were without merit. See Wilson v. Mitchell, 498 F.3d 491, 514-15 (6th Cir. 2007).
For the reasons discussed above, Hall's motion for a COA is denied and his IFP application is denied as moot.