Opinion
Case No. 02-10126-BC.
July 19, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, James Stanley Holly, presently confined at the G. Robert Cotten Correctional Facility in Jackson, Michigan, filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his state court convictions for armed robbery and as a second habitual offender. The respondent opposes the habeas petition on the grounds that some of the petitioner's claims are unexhausted and the other claims lack merit. The Court has concluded that, although some of the petitioner's claims are not exhausted, they lack merit and the interests of justice do not require further exhaustion of state remedies. Accordingly, the habeas petition will be denied on the merits.
I.
On August 28, 1998, following a jury trial in the Genesee County, Michigan Circuit Court, the petitioner was convicted of armed robbery. The material facts leading to the petitioner's conviction demonstrate that the petitioner robbed a pregnant desk clerk at a Knight's Inn motel on February 6, 1998, and then robbed the same establishment two weeks later when the same desk clerk was on duty. The state court of appeals elaborated on the facts as follows:
[T]he victim testified that she clearly saw defendant's face from a distance of two feet while he robbed her. She testified that his facial features were stamped in her mind. Further, the victim had the opportunity to see defendant two weeks after the first robbery. When defendant entered the Knight's Inn on February 20, 1998, the victim immediately and without hesitation recognized him and let him know that she recognized him. He robbed her again. The second time he robbed her, he was caught "red handed." The victim was positive at all times that the same man robbed her twice. Her description of the robber basically matched defendant and, when defendant was caught, he was wearing the clothes and earring described by the victim. There was little chance of mistaken identification by the victim under the circumstances and an independent basis existed for the in court identification.
. . .
[T]he victim had the opportunity to observe defendant, without a mask, during two robberies. The area in which the robberies occurred was well lit and the victim testified that defendant's facial features were stamped in her mind. She testified that when defendant walked into the Knight's Inn two weeks after the first robbery, she immediately recognized him and told him that she could not believe that he was going to rob her again. The description that the victim gave to police was similar to the description of defendant. On February 6, 1998, the victim described the robber as a black male in his thirties, approximately five feet, eight inches or five feet, nine inches tall, wearing a mustache, not cleanly shaven, and having a gold loop earring in his left ear. She also believed that she described him as not being very light-skinned. After the second robbery, the victim told the police that she was robbed by the same man. At the preliminary examination, defendant was noted to have a mustache and a goatee. And, at trial, defendant described himself to be almost five feet, eight inches tall with a weight of one hundred seventy pounds. While he described himself as being of a thin build, a police officer indicated that defendant was of medium build. The victim's description of defendant was also detailed, including details of the hat defendant was wearing, his coat, and his earring. It was clear that she had studied defendant. In addition, the victim was certain of defendant's identification at the pretrial examination. The length of time between the first robbery and the second robbery was two weeks.People v. Holly, 2001 WL 755384, at *7-8 (Mich.Ct.App. February 9, 2001).
On September 19, 1998, the petitioner was sentenced as a second felony offender to twenty-five to fifty years in prison for armed robbery.
The petitioner filed an appeal of right through counsel in the Michigan Court of Appeals raising the following issues:
I. Was the defendant deprived of his Fifth and Fourteenth Amendment rights of due process when an African-American venireman was unlawfully excused?
II. Was the defendant denied his Fifth and Fourteenth Amendment rights to due process where the trial court allowed a group selection of jurors?
III. Was the defendant denied his Fifth and Fourteenth Amendment rights to due process where evidence of prior bad acts was introduced where the danger of unfair prejudice substantially outweighed the probative value of the evidence?
IV. Was the defendant deprived of his Fifth and Fourteenth Amendment rights to due process when evidence of his alleged threats was introduced?
V. Was the defendant deprived his Fifth and Fourteenth Amendment rights to due process when the trial court failed to charge the jury with lesser included offenses?
VI. Was the defendant deprived of his Fifth and Fourteenth Amendment rights to due process and his Eighth Amendment right to be free from unlawful punishment when the trial court abused its discretion in imposing a twentyfive to fifty year sentence?
In his supplemental pro se brief, the petitioner raised the following additional issues:
I. Did the police lack probable cause to arrest the defendant and seize evidence in violation of his Fourth and Fourteenth Amendment rights?
II. Did the district judge and prosecutor sign and authorize a perjurious complaint and felony warrant?
III. Did the Genesee County District Court violate the Fourth Amendment by failing to provide an immediate judicial determination of probable cause to arrest without a warrant?
IV. Did the Genesee County District Court violate Mich. Ct. R. 6.104(A) and Rule 5(A) of federal and state rules pertaining to the defendant's arraignment that the above rules mandate?
V. Did the Genesee County District Court violate defendant's rights to substantive and procedural due process regarding the reliability of the defendant's identification where a tainted in-court identification occurred fourteen days after a warrantless arrest?
The Michigan Court of Appeals affirmed the petitioner's conviction and sentence. People v. Holly, No. 214795, 2001 WL 755384 (Mich.Ct.App. Feb. 9, 2001) (per curiam). The petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, raising only the first six issues that had been raised by counsel in the Michigan Court of Appeals. The application was denied by standard order. People v. Holly, 465 Mich. 890, 635 N.W.2d 319 (Mich.Sup.Ct. October 29, 2002).
On May 8, 2002, the petitioner filed the present petition for a writ of habeas corpus, raising the following issues:
I. Whether the trial court lacked jurisdiction to try the petitioner?
II. Whether the petitioner was denied substantive and procedural due process when he was detained pursuant to a warrantless arrest for six days before his arraignment?
III. Whether the petitioner was denied fundamental fairness and substantive due process at trial when the state court allowed a tainted in-court identification at the petitioner's preliminary examination?
IV. Whether the petitioner was deprived of equal protection and fundamental fairness when the state court allowed two African-American veniremen to be removed from the jury through peremptory challenges?
V. Whether the petitioner was deprived of his Fifth and Fourteenth Amendment rights when the state trial court allowed the admission of other or similar acts evidence?
VI. Whether the petitioner was deprived of his Fifth Amendment right of procedural due process and his right to fundamental fairness when the state court improperly selected the members of the petitioner's jury?
VII. Whether the petitioner was deprived of his Fifth, Sixth, and Fourteenth Amendment constitutional rights when the state trial court failed to instruct the jury on the lesser included offense of unarmed robbery?
VIII. Whether the petitioner was deprived of his Eighth Amendment right to be free from cruel and unusual punishment when the state court sentenced him to a 25 to 50 year prison sentence?
The respondent filed an answer alleging that the claims were either procedurally defaulted or meritless.
II.
The respondent argues that the petitioner's claims concerning the trial court's jurisdiction to try him, the introduction of similar acts evidence, and the proportionality of his sentence were not presented to the Michigan appellate courts as federal constitutional claims. Therefore, the respondent contends, the petition should be dismissed without prejudice unless the petitioner amends his petition to dismiss his unexhausted claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001).
The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process. O'Sullivan, 526 U.S. at 845. In Michigan, this means that a habeas petitioner must raise his claims before both the Michigan Court of Appeals and the Michigan Supreme Court before raising them on habeas review. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). The "doctrine of exhaustion requires that the same claim under the same theory be presented to state courts before raising it in a habeas petition." Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987).
Normally, the failure to exhaust state court remedies requires dismissal of the entire petition. Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). However, the failure to exhaust state remedies is not an absolute bar when, as here, the federal claims lack merit and requiring additional proceedings would waste time and judicial resources. Id. at 333. Accordingly, the Court will excuse the exhaustion requirement in the interest of judicial economy and proceed to address the merits of the petitioner's claims.
III.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527, 2534 (2003).
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
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. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
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, 529 U.S. 362, 405-06 (2000).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. 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 409, 410-11. See also McAdoo v. Elo, 365 F.3d 487, 493-93 (6th Cir. 2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc) cert. denied, ___ U.S. ___, 124 S. Ct. 1601 (2004); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner contends that the trial court lacked jurisdiction to try him. The Michigan Supreme Court has summarized the nature of subject matter jurisdiction and in personam jurisdiction in Michigan's circuit courts and the relationship between the two as follows:
The circuit court is a "court of general jurisdiction," M.C.L. § 600.151; M.S.A. § 27A.151, having "original jurisdiction in all matters not prohibited by law. . . ." Const. 1963, art. 6, § 13. Subject matter jurisdiction is presumed unless expressly denied by constitution or statute, Bowie v. Arder, 441 Mich. 23, 38, 490 N.W.2d 568 (1992). It is the right of the court to exercise jurisdiction over a class of cases, such as criminal cases. In personam jurisdiction is vested in the circuit court upon the filing of a return of the magistrate before whom the defendant waived preliminary examination, In re Elliott, 315 Mich. 662, 675, 24 N.W.2d 528 (1946), or "before whom the defendant had been examined." Genesee County Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 119, 215 N.W.2d 145 (1974). Having once vested in the circuit court, personal jurisdiction is not lost even when a void or improper information is filed. In re Elliott, supra at 675, 24 N.W.2d 528.People v. Goecke, 457 Mich. 442, 458, 579 N.W.2d 868, 875 (1998).
"Determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary." Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (citing United States ex rel. Herrington v. Mancusi, 415 F.2d 205 (2d Cir. 1969)). The Court may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Although the petitioner attempts to couch his claim in constitutional terms, "the federal guarantee of charge by indictment does not apply to the states. . . ." Lucas v. O'Dea, 179 F.3d 412, 417 (6th Cir. 1999).
The Court recognizes that "a state prisoner petitioning for habeas corpus relief has a due process right to be informed of the nature of the accusations against him." Ibid. A variance that exposes a defendant to charges for which he had no notice and no opportunity to defend can constitute a constructive amendment that deprives the defendant of his Fourteenth Amendment right to notice of the charges against him. See id. (citing Combs v. Tennessee, 530 F.2d 695, 698 (6th Cir. 1976).
In this case, however, there was ample notice of the charges. The petitioner was arrested on February 20, 1998. The Michigan Court of Appeals states that the "[d]efendant admitted that he was arraigned on February 26, 1998. An arraignment constitutes a judicial determination of probable cause." Holly, 2001 WL 755384, at *5. The Michigan court's statement that an arraignment constitutes a probable cause determination is not entirely correct; however, the record submitted to this Court shows that the petitioner had a preliminary examination on March 10, 1998, was bound over to circuit court for trial, and was arraigned in the circuit court on March 30, 1998. The petitioner's February 26, 1998 arraignment would have been in the district court, presumably after a complaint was issued upon the determination of probable cause. See Mich Ct. R. 6.101, 6.102(B), 6.104.
The petitioner received notice at his arraignment that he was charged with armed robbery and that it was alleged that he used a handgun to take money from Bobbie Wood. At the preliminary examination, Ms. Wood testified that the petitioner robbed her at gunpoint at the front desk of a Knight's Inn Motel at about 10:00 p.m. on February 6, 1998. She said that the petitioner robbed her again on February 20, 1998 under much the same circumstances. Ms. Wood testified that she saw the robber at a very close range in a well-lit area both times and had his "facial features . . . stamped in [her] mind." Preliminary Examination Transcript ("Tr.") at 18.
This Court finds that the arraignments and preliminary examination in this case adequately informed the petitioner of the crime with which he was charged and the allegations against which he would need to defend. Further, there is no question that subject matter and in personam jurisdiction were vested in the Genesee County Circuit Court to try the petitioner for this charge. The petitioner's claim that the trial court lacked jurisdiction to try him for armed robbery, thereby depriving him of due process of law, lacks merit and does not warrant habeas relief.
B.
The petitioner next contends that he was denied substantive and procedural due process when he was detained pursuant to a warrantless arrest for six days before his arraignment and before a probable cause determination was made.
The Michigan Court of Appeals decided this claim as follows:
Defendant next argues that he was not provided with a prompt, judicial determination of probable cause after his warrantless arrest and that the failure to provide the prompt determination of probable cause requires a dismissal of the charges against him. Defendant argues that there was no judicial determination of probable cause until his preliminary examination on March 10, 1998. This is untrue. Defendant admitted that he was arraigned on February 26, 1998. An arraignment constitutes a judicial determination of probable cause. See People v. Whitehead, 238 Mich.App 1, 2; 604 NW2d 737 (1999), where this Court stated:
In Riverside Co. v. McLaughlin, 500 U.S. 44, 56; 111 S Ct 1661; 114 L.Ed.2d 49 (1991), the United States Supreme Court held that, following an arrest without a warrant, "a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter [be found to] comply with the promptness requirement" of the federal constitution's Fourth Amendment. Police authorities who hold an arrestee for more than forty-eight hours without an arraignment can constitutionally do so only if they can "demonstrate the existence of a bona fide emergency or other extraordinary circumstance" that would justify the delay. Id. at 57. [ Whitehead, supra at 2 (emphasis added).]
It is clear that the arraignment did not take place within forty-eight hours of defendant's arrest. Defendant was arrested on February 20, 1998, and was arraigned on February 26, 1998. The issue in this case is whether any remedy is available to defendant for the violation of his right to a prompt arraignment. The failure to arraign a defendant within the applicable time period may result in the exclusion of evidence gathered during the delay unless the delay was necessitated by a bona fide emergency or other extraordinary circumstances. People v. Manning, ___ Mich.App ___; ___ NW2d ___ (2000) (Docket No. 224898, rel'd 12/15/00, slip op pp 7, 17-18); Whitehead, supra at 7, 13-14.
Persons arrested without a warrant are "presumptively innocent." A prompt judicial determination of probable cause for arrest is "one of the most important" protections afforded citizens under the Fourth Amendment's prohibition of unreasonable seizures. To assure that protection, the forty-eight-hour rule established by Riverside must be carefully observed by police authorities. Those who ignore that rule will do so at their own peril, running the risk that confessions obtained will be deemed inadmissible and that convictions based on those confessions will be reversed on appeal. [ Id. at 13-14 (citations omitted; emphasis added).]
In this case, all of the evidence admitted at defendant's trial was gathered before or at the time of defendant's arrest. No evidence that was used against defendant at trial was gathered between the warrantless arrest and the arraignment six days later. Because there was no evidence gathered during the delay and used against defendant at trial, there is no remedy for defendant to pursue with regard to the claimed violation of his right to a prompt judicial determination of cause. Defendant was not entitled to have all adverse proceedings dismissed because of the procedural violation.Holly, 2001 WL 755384, at *5-6.
The Michigan Court of Appeals' resolution of this claim is a reasonable application of controlling federal constitutional law. Although the petitioner's arrest was warrantless, the petitioner was arrested after being caught "red-handed" robbing or attempting to rob the same victim at the same location a second time on February 20. See id at * 7. Therefore, the petitioner's arrest was not illegal, despite being warrantless. However, even if the petitioner's arrest were unlawful, it would not bar his prosecution with lawfully admitted evidence. "An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, 445 U.S. 463, 474 (1980) (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). The exclusionary rule limits the proof the State may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. "However, [the defendant] is not himself a suppressible `fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." Crews, 445 U.S. at 474.
Here, there is no allegation that any tainted evidence was obtained during the time between the petitioner's arrest and his probable cause determination. Therefore, the determination by the state court of appeals that the petitioner's conviction was not tainted by his illegal detention was not an improper application or an unreasonable interpretation of Supreme Court precedent.
C.
The petitioner next claims that his in-court trial identification was tainted by an inherently suggestive in-court identification at his preliminary examination. The Michigan Court of Appeals rejected this claim as follows:
Defendant next argues that the district court abused its discretion when it failed to grant his request for a lineup before the preliminary examination. Under the circumstances, we disagree. Defendant had no constitutional right to a pretrial lineup. People v. Farley, 75 Mich.App 236, 238-239; 254 NW2d 853 (1977). "Rather, the granting of a pretrial lineup is a matter which is addressed solely to the examining magistrates' discretion." Id. Recently, this Court reaffirmed that the decision to grant a motion for a lineup is discretionary. People v. McAllister, 241 Mich.App 466, 471; 616 NW2d 203 (2000). The Court in McAllister also stated, "[a] right to a lineup arises when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification that a lineup would tend to resolve." Id., citing People v. Gwinn, 111 Mich. App. 223, 249; 314 N.W.2d 562 (1981).
In Gwinn, this Court stated:
Michigan law permits a trial court to grant a defendant's motion for a lineup if the court chooses to do so in an exercise of its discretion. This rule is the same as that stated in Evans v. Superior Court of Contra Costa County, 11 Cal. 3d 617, 625; 114 Cal. Rptr. 121; 522 P.2d 681 (1974). In that case, the California Supreme Court held that there is a due process right to a lineup "in an appropriate case." The Court held, however, that it was within the discretion of the trial judge to determine whether fundamental fairness requires a lineup. The Court directed lower courts to consider the benefits to an accused, the burden to the prosecution, police, courts, and witnesses, and the timeliness of the motion involved. The Court pointed out that a right to a lineup should arise when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification which a lineup would tend to resolve.
In this case, the trial court did not abuse its discretion in refusing defendant's request for a lineup. Defendant requested a lineup, arguing that the victim should not be allowed to identify him for the first time at the preliminary examination where he would be the only black man in jail clothing. He argued that the proceeding would be unduly suggestive. Defendant's request for a lineup was made on the day set for his preliminary examination, which was twelve days after his arraignment. Neither the prosecutor nor the trial court expressed opposition to the lineup. Defendant, however, refused to waive his right to a preliminary examination within fourteen days of his arraignment. MCL 766.4; MSA 28.922; MCR 6.104(E)(4). The trial court decided to proceed with the preliminary examination because defendant was adamant about his fourteen-day right to a preliminary examination. The motion for a lineup was not timely, given that it was made on the twelfth day after arraignment and defendant refused to waive his right to a preliminary examination within fourteen days. It also seems that defendant's request for a lineup was not sincere under the circumstances. Rather, it appears that defendant was attempting to build error into his case. More importantly, while defendant made identification an issue in the case, there was no showing that there was "a reasonable likelihood of mistaken identification which a lineup would tend to resolve." Gwinn, supra at 249. Here, the victim testified that she clearly saw defendant's face from a distance of two feet while he robbed her. She testified that his facial features were stamped in her mind. Further, the victim had the opportunity to see defendant two weeks after the first robbery. When defendant entered the Knight's Inn on February 20, 1998, the victim immediately and without hesitation recognized him and let him know that she recognized him. He robbed her again. The second time he robbed her, he was caught "red handed." The victim was positive at all times that the same man robbed her twice. Her description of the robber basically matched defendant and, when defendant was caught, he was wearing the clothes and earring described by the victim. There was little chance of mistaken identification by the victim under the circumstances and an independent basis existed for the in-court identification.
Defendant next argues that the trial court should not have allowed the victim to identify him at trial because her identification was indelibly tainted by the suggestiveness of the identification she made at the preliminary examination. Again, we disagree. This Court recently addressed this same issue in Colon, supra at 304-305.
The decision to admit an in-court identification would not be reversed on appeal unless it is clearly erroneous. If a witness is exposed to an impermissibly suggestive pretrial identification procedure, the witness' in-court identification will not be allowed unless the prosecution shows by clear and convincing evidence that the in-court identification will not be based on a sufficiently independent basis to purge the taint of the illegal identification. The defendant must show that in light of the totality of the circumstances, the procedure used was so impermissibly suggestive as to have led to a substantial likelihood of misidentification. Simply because an identification procedure is suggestive does not mean it is necessarily constitutionally defective. The fact that the prior confrontation occurred during the preliminary examination, as opposed to a pretrial lineup or showup, does not necessarily mean that it cannot be considered unduly suggestive. When examining the totality of the circumstances, relevant factors include: the opportunity for the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of a prior description, the witness' level of certainty at the pretrial identification procedure, and the length of time between the crime and the confrontation.
Here, there is no question that the preliminary examination was a suggestive atmosphere in that defendant was placed in the courtroom in prison garb. However, the victim testified that he observed defendant for at least five minutes in a small bedroom where the lights were on. Two days after the incident, the victim identified the main perpetrator as an Hispanic male with curly hair, which is apparently an accurate description of defendant. Less than two weeks passed between the time of the beating and the preliminary examination, which is a "relatively short span of time," that "does not reduce the reliability" of the identification. The prosecution showed, by clear and convincing evidence, that the victim's identification of defendant had a sufficiently independent basis and was not based on any suggestiveness surrounding the preliminary examination. [ Id. (citations omitted).]See also People v. Davis, 146 Mich. App. 537, 548; 381 N.W.2d 759 (1985), wherein this Court stated:
The fairness of an identification procedure is evaluated in light of the totality of the circumstances. The test is not whether the procedure was suggestive but rather whether the totality of the circumstances shows it to be reliable.
In this case, viewing the totality of the circumstances, the victim's identification of defendant had a substantial independent basis apart from seeing him at the preliminary examination. Therefore, the victim's in-court identification of defendant was proper. First, the victim had the opportunity to observe defendant, without a mask, during two robberies. The area in which the robberies occurred was well lit and the victim testified that defendant's facial features were stamped in her mind. She testified that when defendant walked into the Knight's Inn two weeks after the first robbery, she immediately recognized him and told him that she could not believe that he was going to rob her again. The description that the victim gave to police was similar to the description of defendant. On February 6, 1998, the victim described the robber as a black male in his thirties, approximately five feet, eight inches or five feet, nine inches tall, wearing a mustache, not cleanly shaven, and having a gold loop earring in his left ear. She also believed that she described him as not being very light-skinned. After the second robbery, the victim told the police that she was robbed by the same man. At the preliminary examination, defendant was noted to have a mustache and a goatee. And, at trial, defendant described himself to be almost five feet, eight inches tall with a weight of one hundred seventy pounds. While he described himself as being of a thin build, a police officer indicated that defendant was of medium build. The victim's description of defendant was also detailed, including details of the hat defendant was wearing, his coat, and his earring. It was clear that she had studied defendant. In addition, the victim was certain of defendant's identification at the pretrial examination. The length of time between the first robbery and the second robbery was two weeks. The preliminary examination was less than three weeks after the second robbery. Thus, there was little time between the robberies and the identification at the pretrial examination. As in Colon, defendant here has failed to show that, under the totality of the circumstances, there was a substantial likelihood of misidentification. Because the victim's identification of defendant had a sufficient independent basis, it cannot be said to have been based on any suggestiveness surrounding the preliminary examination. The trial court properly allowed the victim to identify defendant at trial.Holly, 2001 WL 755384, at *6-8.
A conviction based on identification testimony that follows a pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986), cert. denied, 482 U.S. 918 (1987) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). It is the likelihood of misidentification that violates the defendant's due process right. Neil v. Biggers, 409 U.S. 188, 198 (1972). The due process concern is heightened when that misidentification is possible because the witness is called upon to identify a stranger whom she has observed only briefly, under poor conditions, and at a time of extreme emotional stress and excitement. See Manson v. Brathwaite, 432 U.S. 98, 112 (1977); Simmons, 390 U.S. at 383-84.
As noted by the state court of appeals, an unduly suggestive encounter occurred in this case at the petitioner's preliminary examination. The Court must therefore determine the "central question" whether under the totality of the circumstances the identification was nevertheless reliable. Neil, 409 U.S. at 199. The Supreme Court has set out the factors to be considered: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199-200. Although this Court must afford a presumption of correctness to the state court's factual findings concerning these factors, whether the factors demonstrate reliability in the identification process is a question of law for this court to decide. Sumner v. Mata, 455 U.S. 591 (1982) (per curiam).
Here, review of the record shows that the victim had two excellent opportunities to observe the armed robber in good light at a very close distance. Seeing the perpetrator twice reinforced the identification in the present case arising out of the first robbery. The victim paid close attention to the robber and declared that his features had been stamped into her mind. She was positive that the petitioner was the robber at each identification. The victim's description of the robber closely matched the petitioner on both occasions. Only two weeks passed between the time of the first robbery and second robbery. The victim's identification of the petitioner at his preliminary examination took place less than three weeks after the second robbery.
This Court finds that under the totality of these circumstances there was no substantial likelihood of misidentification at trial caused by the inherently suggestive nature of the preliminary examination identification. There existed a strong, independent basis for the victim's identification of the petitioner at trial. The state court of appeals' decision denying relief on the petitioner's lineup and identification claims was a reasonable application of controlling federal constitutional law.
D.
The petitioner next claims that pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), he was denied equal protection by the improper removal of African American jurors from the jury panel. The Michigan Court of Appeals denied this claim on the following basis:
Defendant first argues that two black jurors were improperly removed from the jury on the basis of their race. He argues that he has made a prima facie showing of discrimination under Batson v. Kentucky, 476 U.S. 79; 106 S Ct 1712; 90 L.Ed.2d 69 (1986), and, therefore, the prosecutor had a burden to provide a racially neutral explanation for the challenges made to the jurors. Defendant admits, however, that the two black jurors at issue were excused for cause by the trial court. Batson prohibits a prosecutor from exercising peremptory challenges to strike jurors from a jury solely on the basis of their race. Batson, supra at 96 (emphasis added). Because the jurors at issue were not excused by the prosecutor utilizing peremptory challenges, defendant's claim is patently frivolous and merits no further discussion.Holly, 2001 WL 755384, at * 1.
Review of the record shows that two African-American jurors were excused from jury service for cause. Tr. Vol. I at 99. These were jurors Berry and Woodson, who were excused for expressing a belief that they would have difficulty finding police witnesses credible. Tr. Vol. I at 56-57, 81-82. In his memorandum in support of his habeas petition, the petitioner acknowledges that these jurors were excused for cause. Memorandum at 21.
In Batson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the prosecution from exercising its peremptory challenges to strike prospective jurors solely on account of their race. Batson reaffirms that the "Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race," 476 U.S. at 86 (citing Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 305 (1879)), and holds that the Equal Protection Clause prohibits a prosecutor from challenging "potential jurors solely on account of their race." Id. at 89. Batson also established that a defendant may challenge the use of peremptory strikes by relying on facts in his case alone, a test that is easier for the challenger than the test of Swain v. Alabama, 380 U.S. 202 (1965). See Batson, 476 U.S. at 91-93.
Although Batson itself applied to prosecutorial strikes of potential jurors of the same race as the criminal defendant, id. at 96 (setting forth the prima facie case for Batson Step 1); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988) (same), subsequent opinions hold that the inquiry is whether a potential juror was excluded because of his race, regardless of whether he was of the same race as the defendant. See Powers v. Ohio, 499 U.S. 400, 415 (1991).
In the present case, review of the record and the petitioner's own memorandum shows that the African-American jurors in question were excused for cause, not through peremptory challenges. Batson does not prohibit excusing jurors for cause regardless of whether they are of the same race or nationality as the defendant. The record shows that the two jurors in question expressed their opinions that they would have difficulty believing the testimony of police witnesses because of prior experiences they had with the police. Therefore, the record does not support a claim that excusing these jurors for cause was merely a pretext employed to disguise an improper racial motive or a substitute for unlawful peremptory strikes. The state court of appeals' ruling that there was no factual basis supporting the petitioner's Batson claim was a reasonable application of federal constitutional law.
E.
The petitioner next contends that improper admission of other or similar acts evidence deprived him of a fair trial. The evidence to which the petitioner objects is the evidence that he robbed the same victim at the same location on February 20, 1998, in addition to robbing her on February 6, 1998. This claim is nothing more than a reprise of the petitioner's state law evidentiary issue, which he advanced without success on his direct appeal. However, "[h]abeas 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). The Sixth Circuit Court of Appeals has explained that
"[e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64 (1967).Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001) (second alteration in original). The Supreme Court has declined to hold that similar "other acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352. Thus, even if some rule of evidence was violated, relief on collateral review will be provided "only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.'" Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
The state court of appeals determined that no evidence rule was violated by the admission of the testimony concerning the second robbery. In its thorough discussion of the claim, that court stated:
Defendant next argues that the trial court abused its discretion in allowing similar-acts evidence, specifically defendant's February 20, 1998, robbery of the same motel, into evidence. We disagree.
MRE 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. [Emphasis added.]
In People v. VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994), the Court clarified the test to be utilized to determine the admissibility of other bad-acts evidence:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury.
It is insufficient for the prosecution to merely recite one of the purposes articulated in MRE 404(b). People v. Crawford, 458 Mich. 376, 387; 582 N.W.2d 785 (1998). The prosecution must also demonstrate that the evidence is relevant. Id. Relevance is a relationship between the evidence and a material fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue more probable or less probable than it would be without the evidence. . . . The logical relationship between the proffered evidence and the ultimate fact sought to be proven must be closely scrutinized. [ Id. (citation omitted).]
In this case, the prosecution articulated a proper purpose under MRE 404(b) for the admission of evidence of the February 20, 1998 robbery, specifically, to establish the identity of defendant as the perpetrator of the February 6, 1998 robbery. In addition, the evidence was logically relevant.
In People v. Ho, 231 Mich. App. 178, 186; 585 N.W.2d 357 (1998), this Court articulated the test to be used to determine relevance when similar-acts evidence is being used to demonstrate identity through modus operandi:
Although the VanderVliet Court adopted a new test for admission of evidence under MRE 404(b), the four-part test of People v. Golochowicz, 413 Mich. 298, 309; 319 N.W.2d 518 (1982), remains valid to show logical relevance where similar-acts evidence is offered to show identification through modus operandi. People v. McMillian, 213 Mich. App. 134, 138; 539 N.W.2d 553 (1995). The Golochowicz test requires that (1) there is substantial evidence that the defendant committed the similar act (2) there is some special quality of the act that tends to prove the defendant's identity (3) the evidence is material to the defendant's guilt, and (4) the probative value of the evidence sought to be introduced is not substantially outweighed by the danger of unfair prejudice. Golochowicz, supra at 307-309.
In this case, the prosecution presented substantial evidence that defendant committed the second robbery about which the victim, the motel desk clerk, testified. First, the victim indicated that she recognized defendant as being the same robber from two weeks earlier. Second, defendant was caught "red handed" after the second robbery. Further, he basically matched the description given by the victim and was carrying the approximate amount of money taken from the second robbery. Some of the money was packaged in an unusual way which had been described by the victim. Thus, the first element of the Golochowicz test was met; there was substantial evidence that defendant committed the crime.
Second, the special qualities of the robberies tended to link both of them to defendant. Both robberies occurred at the same location on a Friday night when the same desk clerk was working. Both robberies occurred in the same basic time frame, around the 9:00 p.m. to 10:00 p.m hour. Both robberies involved the same or a similar looking gun. The robber wore a small, gold loop earring in his left ear and appeared to be wearing the same dark coat in each robbery. When the robber fled the scene, he ran in the same direction each time, south behind the motel. The evidence of the February 20, 1998 robbery was thus sufficiently "like" or "similar" to justify the inference that both crimes were the "handiwork of the same person." Golochowicz, supra at 312.
The evidence was also material to defendant's guilt and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. VanderVliet, supra at 55; Ho, supra at 186. MRE 403 does not prohibit the use of prejudicial evidence. It only prohibits the use of unfairly prejudicial evidence. Crawford, supra at 398. "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." Id. Similar-acts evidence is substantially more prejudicial if the most powerful inference likely to be made from the other-acts evidence is the "forbidden one," i.e., that defendant must have committed the crime because he has committed others. Id.
The similar-acts evidence was material and highly probative of defendant's identity as the perpetrator. In fact, the February 20, 1998 robbery was part and parcel of the ultimate identification of defendant as the armed robber in the February 6, 1998 robbery. Defendant denied being at the Knight's Inn on February 6, 1998, asserted an alibi defense, and claimed that the victim was mistaken in her identification. The testimony regarding the similarities of the robberies and the circumstances under which defendant was apprehended were highly probative of defendant's identity and tended to make defendant's alibi for February 6, 1998 unbelievable. Although the evidence was prejudicial, like all evidence implicating a defendant, there was no showing that the evidence was likely to adversely affect defendant by injecting extraneous considerations at trial. There was also no showing that the most powerful inference to be made was an improper character inference or that the evidence was given undue or preemptive weight by the jury. In addition, the trial court issued a cautionary instruction to the jury about the proper consideration of the other acts evidence.
In conclusion, the evidence was offered for a proper purpose and was logically relevant. Its probative value was not substantially outweighed by unfair prejudice and a cautionary instruction was given. Therefore, we conclude that the trial court did not abuse its discretion in admitting the similar-acts evidence.Holly, 2001 WL 755384, at *2-4.
The petitioner contends that evidence of this other similar act was irrelevant and unfairly prejudicial. In light of the petitioner's mistaken identity defense, the Court cannot accept that argument. The second robbery was not offered by the State to show the petitioner's propensity to commit robberies. Rather, the second robbery provided a key basis for the victim's identification of the petitioner as the perpetrator of the first robbery. Testimony that is "inextricably intertwined" with the evidence underlying the conviction is not "other acts" evidence. United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Moreover, even improperly admitted evidence will not render a trial fundamentally unfair if it is probative of an essential element of the charged crime. See Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980) (finding no basis for habeas relief where the challenged evidence was "rationally connected" to the crime charged).
Moreover, the petitioner raised this claim solely as an issue of state law in state court, and he has not alleged a violation of the federal constitution in his habeas petition. One well established rule, not altered by the AEDPA, is that "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984)); see Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir.) (concluding that violation of a state law is not cognizable in federal habeas corpus proceedings), cert. denied, 525 U.S. 1025 (1998). Accordingly, the petitioner's state law claim concerning evidence of prior bad acts is not cognizable on habeas review. See Floyd, 148 F.3d at 619; see also 28 U.S.C. § 2254(a).
Even if the claim were properly before this Court, it would not warrant the issuance of the great writ because the state courts did not render a decision on this evidence that contravened or involved an unreasonable application of the Constitution or federal law.
F.
The petitioner next contends that he was denied a fair trial through the trial court's method of jury selection. The Michigan Court of Appeals rejected this claim as well, stating:
Defendant next argues that the trial court's method of jury selection was improper and violated MCR 2.511(F). We agree. In People v. Colon, 233 Mich.App 295, 302-304, 308-309; 591 NW2d 692 (1998), this Court found that an almost identical system of jury selection was improper and violated MCR 2.511(F). There, as here, the panel of jurors seated and examined was not equal in size to the jury that heard the case, and once a prospective juror was dismissed, a new prospective juror was not selected and examined before additional challenges were made. Unlike Colon, however, the jury selection method in this case was not contested by trial counsel at any relevant time and, in fact, it appears that defense counsel enthusiastically accepted the jury selection method. The error is thus unpreserved for appellate review. Unpreserved constitutional and nonconstitutional errors are reviewed pursuant to the plain error standard of review. People v. Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. . . . To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [ Id. (citations omitted).]
In this case, although defendant demonstrates a plain error, he does not allege any prejudice resulting from the jury selection process. This is fatal under the plain error analysis. Id. Moreover, even if we were to determine that prejudice existed or could be presumed, we would not reverse. Reversal is only required if the error resulted in the conviction of an actually innocent defendant or if it "seriously affected the fairness, integrity or public reputation" of the judicial proceeding. Carines, supra at 763-764. Here, the prosecution presented overwhelming evidence of defendant's guilt and we do not find that the method of jury selection seriously affected the fairness, integrity or public reputation of the proceeding.Holly, 2001 WL 755384, at *1-2 (footnoted omitted).
This claim does not entitle the petitioner to habeas relief because he has not shown that the jury selection method used was racially or nationally discriminatory, or otherwise constitutionally impermissible. Although the petitioner asserts that the jury selection method used by the court denied him a fair trial, he makes no specific allegations as to why this is the case. There are no allegations in the petition that the persons selected for jury service were not qualified to sit on a jury. Moreover, there is no allegation that potential jurors were hand-picked by the prosecutor or police officials, or that they were chosen by the judge in anything but an objective, random manner. See Henson v. Wyrick, 634 F.2d 1080, 1084-85 (8th Cir 1980), cert. denied, 450 U.S. 958 (1981) (holding that the defendant's constitutional rights were violated where the sheriff personally selected his acquaintances to complete the venire panel after exhaustion of regularly selected venire). In Henson, the Eighth Circuit, in finding a constitutional violation in a jury selection, stated, "[w]here, as here, the jurors are picked according to the Sheriff's subjective rather than objective criteria, the opportunity for the sheriff to express his allegiance to the prosecution by selecting sympathetic jurors is unlimited." Ibid. However, no allegation is made in the present case of any potential for manipulation by the police or prosecution in the manner of the jury's selection.
It is instructive to note that to establish a prima facie violation of Sixth Amendment and the Federal Jury Selection and Service Act (JSSA) requirements regarding the racial composition of jury pools, a criminal defendant must show that: (1) a distinctive group is being excluded from the jury pool; (2) representation of this group in venires from which juries are selected is not fair and reasonable in comparison to the group's representation in the community at large; and (3) this disparity is attributable to a systematic exclusion of the group in the jury selection process. See 28 U.S.C. § 1861.
The petitioner has not alleged, much less shown, that the jury selection process excluded any distinctive group from service in his jury, or that representation of his venire was not fair and reasonable compared to the community at large, or that any disparity was cause by systematic exclusion of a group. This Court concludes that the petitioner has failed to set forth an arguable claim that his federal constitutional rights were violated by the jury selection process used in this case.
G.
The petitioner next contends that he was denied a fair trial when the trial court failed to instruct the jury on the lesser included offense of unarmed robbery.
The Michigan Court of Appeals denied this claim as follows:
Defendant next argues that the trial court erred when it refused to give the requested jury instruction for unarmed robbery. We agree that the trial court erred. Unarmed robbery is a necessarily lesser included offense of armed robbery. People v. Garrett, 161 Mich.App 649, 652; 411 NW2d 812 (1987). "When an offense is necessarily included, the evidence will always support the lesser offense if it supports the greater." People v. Torres (On Remand), 222 Mich.App 411, 416; 564 NW2d 149 (1997). "Regardless of the evidence in a given case, the court must instruct the jury on necessarily included lesser offenses." People v. Lemons, 454 Mich. 234, 254; 562 NW2d 447 (1997). Thus, it is clear that the trial court erred. See also, People v. Reese, 242 Mich.App 626; 619 NW2d 708 (2000). However, the error is subject to a harmless error analysis. Id. at 635. Under the circumstances where there was no testimony to contradict that a weapon was used and the use of a weapon was not an issue at trial, we find that any error was harmless. See id.Holly, 2001 WL 755384, at *4.
Generally, federal habeas corpus relief is not available for errors of state law, such as claims for failure to instruct on a lesser included offense. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.) (en banc), cert. denied, 496 U.S. 929 (1990). Moreover, even assuming that the trial court erred as a matter of state law, the petitioner is not entitled to relief from this Court unless the error rendered the trial fundamentally unfair. In Bagby, the court held that a state court's failure to instruct the jury on a lesser included offense in a noncapital criminal case is not such a "fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." Bagby, 894 F.2d at 797. The petitioner has not suggested how the state courts' treatment of this issue is contrary to or an unreasonable application of federal law. The Court finds that it is not; the petitioner is not entitled to relief on this claim.
H.
Lastly, the petitioner contends that his 25 to 50 year prison sentence for armed robbery as a second felony habitual offender is unconstitutionally disproportionate to his crime and circumstances. In rejecting this claim, the Michigan Court of Appeals stated:
Defendant also argues that his sentence is disproportionate and is not based on the proper criteria. We disagree. Defendant's sentence is proportionate to the seriousness of the offense and the offender. People v. Milbourn, 435 Mich. 630, 635-636, 654; 461 NW2d 1 (1990). The presentence investigation report (PSIR) confirms that defendant's conviction was, at least, his second felony and that the crime was committed while defendant was on parole for unarmed robbery and assault with intent to do great bodily harm less than murder. Defendant was thirty-eight years old. His list of prior offenses is extremely lengthy, dating back to 1980, and includes many property and assaultive crimes. The PSIR also notes a substance abuse problem. Defendant has a long criminal history and has exhibited an inability to be rehabilitated.
In addition, the nature of the crime was not as benign as defendant indicates on appeal. Defendant approached a pregnant desk clerk, who was working alone at night. He brandished a weapon, yelled at her to give him money, and then fled the scene. The victim testified that she was scared for herself and her unborn baby. Defendant perpetrated the same crime on the same victim two weeks later, demonstrating a cavalier disregard for her, her unborn baby, and the law. The trial court sentenced defendant by taking into account the circumstances surrounding the offense and the offender. It specifically noted defendant's history and the facts of the crime.Holly, 2001 WL 755384, at *9.
The petitioner argues that his sentence was excessive and disproportionate because other defendants have been sentenced less severely for the same crime. In support of his claim, the petitioner relies on People v. Milbourn, 435 Mich. 630, 635, 461 N.W.2d 1 (1990), in which the Michigan Supreme Court held that a sentence constitutes an abuse of discretion if it "violates the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id. at 636, 461 N.W.2d at 2-3.
To the extent that the petitioner argues a violation under Michigan state sentencing law, his claim is not cognizable on habeas review. Pulley v. Harris, 465 U.S. 37, 41 (1984); Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000); Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994). The Court may grant the writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2254(a). Therefore, the petitioner is not entitled to habeas relief on the basis of any state law claims.
The petitioner's federal constitutional claim in essence is that his sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Pursuant to Solem v. Helm, 463 U.S. 277 (1983), a sentence which is significantly disproportionate to the crime violates the Eighth Amendment to the United States Constitution. However, a habeas petitioner who seeks to challenge the severity of a prison sentence on Eighth Amendment grounds faces a formidable challenge. He may obtain relief only by demonstrating that a state court decision contravened or misapplied "clearly established" Supreme Court precedent. Yet the Supreme Court recently acknowledged "that our precedents in this area have not been a model of clarity." Lockyer v. Andrade, 538 U.S. 63, 72 (2003). "Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Ibid. The Supreme Court in Lockyer declared that the general applicability of the proportionality standard to term-of-years sentences was clearly established, but confessed a lack of clarity as to the factors lower courts should consider in making that determination. Ibid. The Court thus concluded that "the only relevant clearly established law amenable to the `contrary to' or `unreasonable application of' framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Ibid.
In Lockyer, the Supreme Court reversed the Ninth Circuit's grant of a writ of habeas corpus on the ground that two twenty-five-year-to-life sentences imposed under California's "three strikes" law, where the triggering felony was the theft of $150 worth of video tapes, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court noted that the "thicket" created by its jurisprudence consisted primarily of its decisions in Solem v. Helm, supra, Harmelin v. Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445 U.S. 263 (1980). The California state court observed that the proportionality rule set forth in Solem was cast into doubt by Harmelin, and proceeded to analyze Andrade's sentence under the approach taken in Rummel, where the Supreme Court rejected a claim that a life sentence imposed under Texas' recidivist statute was grossly disproportionate to the theft felonies that formed the predicate for the sentence. The California court concluded that Andrade's sentence was not disproportionate. The Supreme Court held that this decision was not contrary to or an objectively unreasonable application of federal law that was clearly established by the Supreme Court. Lockyer, 538 U.S. at 73-74.
A plurality of the Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin, 501 U.S. at 965. As the Supreme Court observed in Lockyer, it is generally recognized after Harmelin that the Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only an extreme disparity between crime and sentence, that is, sentences that are grossly disproportionate to the crime. Id. at 1001 (Kennedy, J., concurring); Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001) (citing Coker v. Georgia, 433 U.S. 584, 592 (1977)), cert. denied, 535 U.S. 1031 (2002); United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
"Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel, 445 U.S. at 272. Rummel was convicted of obtaining $120.75 by false pretenses, a crime punishable by at least two years, but not more than ten years in prison. He was sentenced as a recidivist to life imprisonment with the possibility of parole. His two prior felonies consisted of fraudulent use of a credit card to obtain $80 worth of goods and services, a felony punishable by two to ten years in prison; and passing a forged check for $28.36, a crime punishable by two to five years in prison. The Supreme Court held that Rummel's life sentence under the state recidivist statute did not constitute cruel and unusual punishment. In Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for possession of more than 650 grams of cocaine for an offender with no prior felony convictions.
The Supreme Court overturned a life sentence in Solem on the ground that it was significantly disproportionate to Helm's crime and therefore prohibited by the Eighth Amendment. However, Helm had been sentenced to life imprisonment without the possibility of parole for uttering a "no account" check for $100, and his prior felonies also were minor, nonviolent crimes. By contrast, the Supreme Court recently reaffirmed Rummel and found constitutionally sufficient a sentence of twenty-five years to life imposed upon a fifth felony conviction. See Ewing v. California, 538 U.S. 11, 27-28 (2003).
The state court of appeals did not refer to any federal precedent in considering the petitioner's constitutional challenge to his sentence. However, the state appellate court did acknowledge that a rule of proportionality applied in the case, and evaluated the sentence in light of the petitioner's prior record, since the enhancement that applied was due to the petitioner's habitual offender status, as well as the facts of the underlying crime.
This Court cannot conclude that the state appellate court's decision on this issue was contrary to federal law because of the recognition of a proportionality rule. Nor is the decision an objectively unreasonable application of Supreme Court precedent, especially in light of Lockyer. The petitioner was sentenced as a second habitual offender to a prison term of twenty-five to fifty years for armed robbery. His criminal history includes several assaultive and property crimes dating from 1980. In fact, the petitioner was on parole for unarmed robbery and assault with intent to commit great bodily harm at the time of his robbery offense. The nature of the robbery was also quite serious and caused the victim to fear for herself and her unborn child. The petitioner then perpetrated the same crime two weeks later.
The challenged sentence fell within the maximum sentence set by state law, and "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment.'" United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995) (quoted with approval in Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)). As "long as the sentence remains within the statutory limits, trial courts have historically been given wide discretion in determining `the type and extent of punishment for convicted defendants.'" Austin, 213 F.3d at 301 (quoting Williams v. New York, 337 U.S. 241, 245 (1949)). Furthermore, given the petitioner's lengthy criminal history, the State "was entitled to place upon [the petitioner] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Ewing, 123 S. Ct. at 1190 (quoting Rummel, 445 U.S. at 284).
The Court concludes that the state court's refusal to grant relief did not result in a decision that was contrary to or an unreasonable application of Rummel or Harmelin and that the petitioner's case is distinguishable from Solem. The petitioner is not entitled to habeas relief on the basis of his sentencing claim.
IV.
The petitioner has not established that he is presently in custody in violation of the Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion for judgment on the pleadings [dk # 12]; motion to dismiss [dkt # 15]; motion to amend [dkt # 20]; and motion to appoint counsel [dkt # 20] are DENIED as moot.