Opinion
Case No. 2:01-cv-45
March 29, 2004
OPINION
Petitioner Robert Francis Hanley filed this petition for writ of habeas corpus challenging the validity of his state court conviction. Petitioner was convicted by a jury of conspiracy to distribute lysergic acid diethylamide (LSD) on January 27, 1998. Petitioner was sentenced as an habitual offender to 5 to 101/2 years imprisonment. Petitioner filed an appeal in the Michigan Court of Appeals, in which he asserted ten claims for relief. The Michigan Court of Appeals denied Petitioner's appeal on October 26, 1999. People v. Hanley, Michigan Court of Appeals No. 201361. Petitioner's delayed application for leave to appeal to the Michigan Supreme Court was considered and denied on September 26, 2000. People v. Hanley, Michigan Supreme Court No. 116361.
Petitioner maintains that his conviction was obtained in violation of his federal rights. The instant petition sets forth three claims for relief:
I. Petitioner is entitled to either an evidentiary hearing or habeas corpus relief where the Government used false, manufactured, perjured and misleading evidence to convict him, despite his innocence.
II. The Jury was allowed to hear testimony implying that Petitioner was in prison just prior to the alleged conspiracy, thereby denying Petitioner a fair trial.
III. The prosecutor consistently argued impermissible facts during trial, thereby improperly influencing the jury verdict.
The respondent has filed an answer and has complied with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. The parties have briefed the issues and the matter is now ready for decision.
The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001), cert. denied, 536 U.S. 911 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. This Court also may not consider decisions of lower federal courts in determining whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). Thus, the inquiry is "limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time [the petitioner's] conviction became final." Onifer v. Tyszkiewicz, 255 F.3d 313, 318 (6th Cir. 2001).
A decision of the state court may only be overturned if (1) it applies a rule that contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent but unreasonably applies it to the fact of the case; or (4) it either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citing Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Williams, 529 U.S. at 410.
Where the state court has not articulated its reasoning, the federal courts are obligated to conduct an independent review to determine if the state court's result is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. See Harris, 212 F.3d at 943; McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003). Where the circumstances suggest that the state court actually considered the issue, the review is not de novo, Onifer, 255 F.3d at 316. The review remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. Harris, 212 F.3d at 943. However, the Sixth Circuit recently has clarified that where the state court clearly did not address the merits of a claim, "there are simply no results, let alone reasoning, to which [the] court can defer. In such circumstances, the court conducts de novo review. McKenzie, 326 F.3d at 727 (limiting Harris to those circumstances in which a result exists to which the federal court may defer); see also Wiggins v. Smith, 123 So. Ct. 2527, 2542 (2003) (reviewing habeas issue de novo where state courts had not reached the question); Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003) (recognizing that Wiggins established de novo standard of review for any claim that was not addressed by the state courts).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429; Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n. 4 (6th Cir. 1989).
During trial, witness Kim Segorski testified that she was contacted by Mark DeLeon on February 6, 1997, who asked if she could get him some LSD. Unbeknownst to Segorski, DeLeon was an undercover police officer. Segorski obtained LSD from her source and attempted to deliver it to DeLeon in Marinette, Wisconsin. Segorski was driven to Marinette by Jackie Snyder, where Segorski and Snyder were ultimately arrested. (Tr. 1/23/98, pp. 10-15.)
Federal Drug Enforcement Administration (DEA) Agent Bernard David Bolf testified at trial that Segorski agreed to cooperate with police and made arrangements to pay her "source" $1,800.00 for the LSD. (Tr. 1/23/98, p. 149.) Police Detective Randall S. Lind testified that Segorski revealed the identity of her sources as being Petitioner and Heather McEntire. (Tr. 1/23/98, p. 108.) Police Officer Darrin Hunter testified that Segorski delivered the $1,800.00 to Petitioner while wearing a "wire," and that he recognized the voices being transmitted as belonging to Petitioner and Heather McEntire. Hunter stated that he heard Petitioner say that if "who she's selling, meaning [Segorski], the acid to is a cop, that there's money on the books for an attorney." Once the money exchanged hands, Petitioner stated that it was "casino time." (Tr. 1/22/98, pp. 123-25.) Segorski attempted to purchase additional LSD, but was told by Petitioner and McEntire that they did not have any extra "cutup" or perforated at that time. (Tr. 1/22/98, p. 126, 123-25.) Segorski's testimony of the $1,800.00 payment to Petitioner and McEntire gives the same account of the incident as the testimony of Agent Bolf. (Tr. 1/23/98, pp. 29-30.)
Agent Bolf testified that the DEA became involved because of the quantity of LSD to be sold. Because LSD is not normally produced in Escanaba, DEA agents concluded that there was a larger conspiracy. (Tr. 1/23/98, pp. 143, 152-53.) A Michael Andrew Zierk testified that he delivered marijuana to Petitioner in exchange for money and LSD. (Tr. 1/23/98, p. 141.) Zierk stated that he occasionally bought LSD from Petitioner when McEntire was not present. Zierk also testified that Petitioner and McEntire got the LSD from McEntire's brother through the mail, and that the cost of the LSD was $5.00 per hit, but that you could get 100 hits for $300.00. (Tr. 1/23/98, pp. 252-53.)
Cynthia Lynn Wade testified that she obtained LSD from McEntire in order to resell it and that, in January of 1997, Petitioner called Wade to ask if she had his money. Wade testified that she eventually paid McEntire the money she owed for the LSD. Other than the one phone conversation with Petitioner, Wade testified that she dealt solely with McEntire. (Tr. 1/26/98, pp. 13-25.)
Berry Smith testified that he purchased LSD from Petitioner and McEntire and that he also observed them selling LSD to other individuals on numerous occasions. (Tr. 1/26/98, pp. 37-39.) Smith also accompanied Petitioner on one occasion when he sold two "sheets of acid" to some individuals near Hannahville for $250.00 per sheet. (Tr. 1/26/98, pp. 40-43.) Smith stated that he traveled with Petitioner on similar trips to St. Ignace and Sault Ste. Marie. (Tr. 1/26/98, pp. 43-46.) Smith assisted with selling the LSD and received some LSD for his own personal use in exchange. (Tr. 1/26/98, pp. 46-47.) Smith traveled to Sault Ste. Marie a total of three times with Petitioner, during which Petitioner sold LSD. (Tr. 1/26/98, p. 48.)
Kimberly Segorski testified that she eventually assisted police by setting McEntire up to go buy marijuana and cocaine in Wisconsin. Shortly after McEntire was arrested, Segorski received a telephone call from Petitioner. Petitioner asked Segorski whether she had been wearing a wire all the time and Segorski responded that she did not know what he was talking about. Segorski further stated that she did not want to discuss the matter and Petitioner became irritated and stated, "Yeah, well, I hope you don't get sick and die." (Tr. 1/23/98, pp. 49-50.) Segorski testified that Petitioner subsequently called her repeatedly, but she and her parents would just not answer the telephone. (Tr. 1/23/98, p. 51.) Segorski stated that on another occasion, Petitioner came to her door and asked to talk to her. However, Segorski's boyfriend answered the door and Segorski refused to speak with him. A few minutes later, Petitioner called the house from a bar, but Segorski continued to refuse to talk with him. Segorski believed that Petitioner was arrested shortly thereafter. (Tr. 1/23/98, pp. 52-53.)
Jacquelin Snyder, who was also involved in the conspiracy, testified that on one occasion she had gone to the health department with her son in either July or August of 1997, when Petitioner approached her in the parking lot. Petitioner asked her if she was Jackie Snyder, and she responded that she was. Snyder states that she was frightened. Petitioner stated: "Okay. You know, all right." (Tr. 1/22/98, pp. 62-63.) Another co-conspirator, Berry Smith, testified that he went to the police and offered to testify for the prosecution after he received threats from Petitioner. On one occasion, at approximately 9:00 or 10:00 p.m., he heard yelling and kicking on the door of the home he shared with Jennifer Segorski and her two children. Petitioner was yelling that he was going to burn the house down and kill the kids, Jennifer, and her sister. Petitioner eventually left, but telephoned the house shortly thereafter. Jennifer Segorski answered the telephone and put it next to Smith's ear. Petitioner stated that if he found out that Jennifer's sister had worn a wire, he was going to kill everyone. Smith further stated that he was present at Jennifer Segorski's parents' home when Petitioner came to the house with McEntire and had an exchange of words with Jennifer's mother. However, Smith did not hear what was said. (Tr. 1/26/98, pp. 32-36.)
As noted above, Petitioner claims that he is entitled to either an evidentiary hearing or habeas corpus relief where the Government used false, manufactured, perjured and misleading evidence to convict him, despite his innocence. Petitioner states that this claim is based on newly discovered evidence at the time his direct appeal was filed. Specifically, Petitioner asserts that Agent Bolf, Delta County Sheriff's Department Darrin Hunter, and Segorski all testified that Petitioner stated, "it's casino time" when Segorski paid the $1,800.00 owed for the LSD, that Petitioner stated that there was money for a lawyer if Segorski got caught by police, and that he could deliver LSD to Segorski's place of business. (Tr. 1/22/98, pp. 117-18; Tr. 1/23/98, pp. 29-30, 125, 149-50, and 165-66.) Petitioner disputed the accuracy of their version of the conversation. Petitioner states that, therefore, the tape recording of the wiretap was vital to determining what actually transpired and for challenging the prosecution's theory of events.
At trial, Hunter testified that there had been technical difficulties with the recording equipment. Specifically, Hunter stated:
As far as I know it was — we had some problems with the equipment, there was some technical difficulties, which is not uncommon with the equipment unfortunately. At that particular time when we looked back at the cassette to make sure it was working, the reels were going around, but for some reason it did not record. Explain why, I don't know.
(Tr. 1/22/98, p. 122.) Agent Bolf also testified regarding the technical difficulties with the recording equipment. Agent Bolf stated:
I was — there's two different things you have to understand on a transmission. You have the transmission coming over the speaker and you have what's being recorded. On February 24th, it was a beautiful transmission, okay? It was a clear day. Cold, but clear, okay? It was a beautiful transmission. We looked back and we saw the tape moving which means — and like I said, I'll explain how that works if you would like me to. It was a beautiful trans — we thought we had a beautiful tape. It's when I played it back, there was nothing on there because of my error and I'll take the blame — . . . because I was in charge of in the van, okay? So my error, Agent Hunter's error, okay. One of us when we hit the thing, we it came off record and just did the play which would cause the wheels to move on the tape, okay?
(Tr. 1/23/98, pp. 189-90.)
Petitioner asserts that these claims of technical difficulties and operator error were at odds with prior testimony by Detective Hunter. Petitioner states that during the preliminary examination held on March 28, 1997, Hunter testified that a recording had been made, and that said recording was in the custody of the DEA. Hunter further stated that he was "100 percent" certain that it was Petitioner's voice on the tape. During trial, Hunter was questioned with regard to this discrepancy on cross-examination as follows:
The Respondent has failed to provide the transcript of this proceeding. Therefore, the Court will accept Petitioner's version of this proceeding for the sake of this claim.
Q Now, you never did have Rob Hanley's voice on tape while located at 1600 So. 30th Street, Lot 46, correct?
A That's not correct.
Q That's not correct?
A No.
Q When did you have his voice on tape at that location?
A The first tape we listened to.
Q I said in the mobile home.
A Oh, I'm sorry.
Q Yeah.
A No. I'm sorry.
Q See, you had it when he drove up, but never while inside, true?
A No. That's correct. Not inside the mobile home.
Q Didn't — you testified once previously with regard to this matter, correct?
A That's correct.
Q Back on March 28th? A That's correct.
Q Didn't you tell the Court at that time that indeed you had Mr. Hanley's voice on tape with him in the mobile home?
A If I did, it was just a misquote like I just did today. It was — he was actually at the mobile home, not inside the mobile home.
(Tr. 1/22/98, pp. 219-220.)
Petitioner states that he asserted in the state courts that a hearing was necessary on the issue of whether the testimony surrounding the tape recording of the February 24, 1997, transaction was false. Petitioner claims that after his appeal was filed, he discovered technical information which confirmed his suspicions regarding the means by which the recording equipment functioned. Petitioner contends that he did not agree to the LSD distribution scheme in which McEntire was involved and that testimony linking him to the activity on February 24, 1997, was vital to the prosecution's case.
Respondent contends that this claim is barred by Petitioner's failure to exhaust and by his failure to object at trial. In considering this claim, the Michigan Court of Appeals stated:
This claim is not preserved for appellate review because defendant failed to make a motion for a new trial and did not move for a remand for an evidentiary hearing to make a record providing support for this claim. MCR 6.431(B); People v. Torres (On Remand), 222 Mich App. 411, 415; 564 N.W.2d 149 (1997). Defendant has failed to present any evidence in support of his allegations and thus a remand for an evidentiary hearing is not appropriate. Moreover, with reasonable diligence, defendant could have discovered the technical capabilities of the recording system used by the police to monitor their informant. Therefore, this alleged evidence is not newly discovered. People v. Davis, 199 Mich App. 502, 515; 503 N.W.2d 457 (1993).People v. Hanley, Michigan Court of Appeals No. 210361, p. 5 (Oct. 26, 1999) (unpublished).
Respondent's contention that Petitioner failed to exhaust this claim is without merit. As noted above, Petitioner raised this issue in his initial appeal to the Michigan Court of Appeals, as well as in a motion for reconsideration filed in the Michigan Court of Appeals and in his request for leave to appeal to the Michigan Supreme Court.
As noted above, Respondent also asserts that this claim has been procedurally defaulted. When a state-law default prevents further state consideration of a federal issue, the federal courts are ordinarily precluded from considering that issue on habeas corpus review. See Ylst v. Nunemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). The Sixth Circuit applies a four-part test to determine whether a claim is procedurally defaulted: (1) the court must first determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule; (2) the court must decide whether the state courts actually enforced the state procedural rule; (3) the default must be an "independent and adequate" state ground on which the state can rely to foreclose review of a federal constitutional claim; and (4) if the foregoing are met, the petitioner must demonstrate cause for his failure to follow the rule and that he was actually prejudiced by the alleged constitutional error. Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Cone v. Bell, 243 F.3d 961, 966 (6th Cir. 2001). There maybe an "exceptional case in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 122 S.Ct. 877, 885 (2002). A petitioner's default may also be excused upon a showing of a colorable claim of innocence; that is, a showing that any constitutional error "probably" resulted in the conviction of one who was actually innocent. Schlup v. Delo, 513 U.S. 298, 322 (1995) (citing Murray v. Carrier, 477 U.S. 478, 495 (1986)). This exception is reserved for a very narrow class of cases, based on a claim of "new reliable evidence." Schlup, 513 U.S. at 315, 324.
Petitioner in this case claims that his conviction was based on false, perjured and misleading evidence. The Michigan Court of Appeals rejected this claim because Petitioner did not raise it in a motion for new trial, nor did he file a motion to remand for an evidentiary hearing on this basis. However, in his pro se supplemental brief on appeal to the Michigan Court of Appeals, Petitioner specifically requested a remand for an evidentiary hearing on this issue. In support of this request, Petitioner stated that he discovered that the recording device used by Hunter and Bolf could only be heard by the officers monitoring it if the machine is in record mode. Therefore, Hunter's statement that either he or Bolf must have hit the machine, causing it to come out of record mode, is said to raise serious credibility issues. (Petitioner's Schedule 11 Brief, supplementing his appeal to the Michigan Court of Appeals, pp. 15-24.)
In its opinion, the Michigan Court of Appeals does in fact address the merits of Petitioner's request for an evidentiary hearing on this issue by stating that Petitioner failed to present any evidence in support of his allegations, so that a remand for an evidentiary hearing was not appropriate. Moreover, the Michigan Court of Appeals concluded that the evidence did not qualify as newly discovered because Petitioner could have discovered, with reasonable diligence, the technical capabilities of the recording system used by the police to monitor their informant prior to trial.
A federal habeas court must allow discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner's favor, would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary hearing. Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir. 2003). The Court notes that although Petitioner claimed to have experts who would testify regarding the recording equipment capabilities, he failed to attach affidavits from any such expert, nor did he include other evidence supporting his assertions regarding the equipment, nor does he do so in his petition for habeas corpus relief. In addition, as noted above, Hunter's statement regarding the failure of the recording equipment appears to have been speculation, rather than an assertion of fact, especially given the testimony of Bolf that he did not know the cause of the failure, but that such technical difficulties were not uncommon. Finally, as noted by the Michigan Court of Appeals, the asserted evidence does not appear to qualify as "newly discovered," as Petitioner fails to explain why he could not have discovered this evidence during the trial.
The Court notes that even if Petitioner can show that the machine is such that it had to have been in record mode at the time of the wire tap, such a finding would not rule out other problems with the equipment. Petitioner's assertion that Hunter and Bolf destroyed the tape is mere speculation on his part. Nor does the lack of a tape necessitate a finding that the testimony given by Hunter and Bolf was perjured. As noted above, their testimony is corroborated by that of Segorski. Therefore, even if the requested evidentiary hearing was resolved in Petitioner's favor, such a finding would not necessarily entitle him to relief. Vroman, 346 F.3d at 606. Consequently, the Court concludes that the Michigan Court of Appeals' denial of an evidentiary hearing was not such that it constituted "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 . . . resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The Court notes that although due process of law gives the person the opportunity to convince an unbiased decision maker that, for example, he has been wrongly or falsely accused or that the evidence against him is false, it does not guarantee that the procedure will produce a correct decision. "It must be remembered that even if a state decision does deprive an individual of life, [liberty], or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual's right to due process." Martinez v. California, 444 U.S. 277, 284, n. 9 (1980). "[T]he deprivation by state action of a constitutionally protected interest in "life, liberty or property" is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). In order to establish a due process violation based upon the presentation of false or misleading testimony or evidence, a petitioner must show that the prosecutor knowingly elicited false material evidence. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). Mere inconsistencies in testimony fail to establish knowing use of false testimony. Id. As noted above, the Due Process Clause merely gives an accused person the opportunity to convince an unbiased decision maker that, for example, he has been wrongly or falsely accused or that the evidence against him is false. Martinez, 444 U.S. at 284, n. 9. Petitioner has shown, at most, minor inconsistencies in the testimony. Petitioner had the opportunity to cross examine the witnesses and to have the jury weigh the credibility of the witnesses. Therefore, the testimony of witnesses Hunter and Bolf did not violate due process.'
In Petitioner's second claim, he asserts that he was denied a fair trial because the jury was allowed to make the inference that Petitioner was in prison based on the association that he was Robbie. The testimony referred to was that of Jennifer Segorski, in which she stated that McEntire wanted to stay with her for a few months until her boyfriend got out of jail. (Tr. 1/26/98, p. 123.)
Later in the testimony, Segorski made a reference as to when McEntire moved out and stated "but it was a few months before Robbie came home." (Tr. 1/26/98, p. 124.) Petitioner moved for a mistrial, but his motion was denied. In addressing this claim, the Michigan Court of Appeals stated:
Here, defendant conceded at trial that the witness' answer was volunteered and unresponsive to the prosecutor's question. We also note that the reference was very brief, it did not refer to defendant by name, and the prosecutor did not mention this evidence in closing argument. Furthermore, defendant declined the trial court's offer of a curative instruction. We conclude that the trial court properly denied the motion for mistrial.People v. Hanley, Michigan Court of Appeals No. 210361, p. 4.
As noted by the Michigan Court of Appeals, the inadvertent mention noted above, which vaguely referred to Petitioner having been in jail, was not deliberately elicited by the prosecution. Nor did the prosecution highlight this response in any manner. Furthermore, Petitioner's attorney obviously believed that it was the type of comment easily overlooked by jurors, as he declined the trial court's offer of a curative instruction. Given this situation, the Court concludes that the decision of the Michigan Court of Appeals on this issue was not contrary to established federal law.
Finally, Petitioner claims that the prosecutor argued impermissible facts during trial, which improperly influenced the jury. Petitioner claims that the prosecutor improperly "argued and elected to use purported purchases of cocaine and marijuana that dealt exclusively with McEntire and did not intrinsically involve Petitioner." Petitioner points to testimony indicating that McEntire was lured to Wisconsin to obtain marijuana and cocaine in a "reverse buy." Petitioner notes that Kimberly Segorski testified that McEntire had asked her not to tell Petitioner about this Wisconsin deal. However, there is at least one instance in which Petitioner was directly implicated in such dealings. Witness Zierk testified that he delivered marijuana to Petitioner in exchange for money and LSD. (Tr. 1/23/98, p. 141.) In addressing this claim, the Michigan Court of Appeals stated:
Defendant also contends that it was an abuse of the trial court's discretion to admit testimony regarding the attempted purchase of cocaine and marijuana by defendant's girl friend. This testimony was properly admitted because it completed the picture of the drug conspiracy in which defendant participated and provided an explanation for the arrest of defendant's girl friend as well as for defendant's subsequent threatening behavior. Such testimony may be admitted even where it involves the disclosure of other crimes.People v. Hanley, Michigan Court of Appeals No. 210361, p. 4.
The appropriate inquiry is whether the allegedly improper admission of evidence violated the Petitioner's constitutional rights. Estelle v. McGuire, 502 U.S. at 68. A federal court will grant habeas corpus relief only where a violation of the state's evidentiary rule results in the denial of fundamental fairness, and therefore, a violation of due process. Brown, III v. O'Dea, 187 F.3d 572, 578 (6th Cir. 1999) (citing Cooper v. Sowders, 837 F.2d 284, 287 (6th Cir. 1988)).
"The standard in determining whether the admission of prejudicial evidence constitutes a denial of fundamental fairness is whether the evidence is `material in the sense of a crucial, critical highly significant factor.'" Leverett v. Spears, 877 F.2d 921, 925 (11th Cir. 1989) (quoting Redman v. Dugger, 866 F.2d 387, 390 (11th Cir. 1989)).Brown, III v. O'Dea, 187 F.3d at 578.
In this case, as noted by the Michigan Court of Appeals, the testimony regarding McEntire's attempted purchase of cocaine and marijuana provided an explanation for her arrest, which provided the context for understanding Petitioner's subsequent threatening behavior. Such testimony did not constitute a denial of fundamental fairness.
In summary, the Court concludes that Petitioner's claims are without merit and will therefore dismiss the petition.
In addition, if Petitioner should choose to appeal this action, a certificate of appealability is denied as to each issue raised by the Petitioner in this application for habeas corpus relief because Petitioner has failed to make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983) (it would be inconsistent to dismiss under Rule 4 and certify an appeal); Alexander v. Harris, 595 F.2d 87, 91 (2d Cir. 1979) (same).
JUDGMENT
In accordance with the Opinion issued herewith,IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DISMISSED, with prejudice.
IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability.