Opinion
Case No. 00-CV-715460DT
April 27, 2001
JUDGMENT
The above-entitled matter having come before the Court on a Petition for Writ of Habeas Corpus, Honorable Gerald E. Rosen, United States District Judge, presiding, and in accordance with the Opinion and Order entered on 27 APR 2001, 2001;
IT IS ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus is DENIED WITH PREJUDICE.
SO ORDERED.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Pernis Johnson, a state prisoner currently confined at the Alger Maximum Correctional Facility in Munising, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of one count of second-degree home invasion following a jury trial in the Wayne County Circuit Court in 1997. Petitioner was sentenced to 7-15 years imprisonment for that conviction.
In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the sentencing decision, and his opportunity for allocution at sentencing. For the reasons stated below, the petition for writ of habeas corpus is denied.
I. Facts
Petitioner's arrest and conviction arises from an incident on September 23, 1995 in Detroit, Michigan in which he was seen kicking in the door of girlfriend Sheila Norris' flat and then leaving the premises shortly before a fire broke out in the flat. Petitioner was charged with arson of an occupied dwelling and second-degree home invasion.
At trial, Anita Brintley testified that she saw Petitioner kick in the door to Sheila Norris' upper flat on Frontenac street when she was walking to church around 8:00 p.m. on September 23, 1995. Trial Tr., pp. 58-65. Mary Hamilton testified that she owned a two flat house on Frontenac street in Detroit, Michigan in September, 1995. She lived in the lower flat and rented the upper flat to Sheila Norris and her four children. On September 23, 1995, Ms. Hamilton drove Ms. Norris and her children to a friend's house several miles away. That day, she heard footsteps upstairs and noise coming from the kitchen of the upper flat. She then saw Petitioner come down the stairs and leave the house. The lock to the upstairs door was broken. Ms. Hamilton called 911. When the police arrived, she followed them and saw smoke in the upstairs dining room. She also saw a fireman exit the flat with a bottle with fluid and a rag in it. Ms. Hamilton testified that she did not consider Petitioner to be a tenant of the property, that he never paid rent, and that she never gave him keys to the flat. Trial Tr., pp. 94-123, 169-72.
Sheila Norris testified that she lived in the upper flat at 5937 Frontenac street on September 23, 1995 and that she had lived there for three years prior to the incident at issue. Ms. Norris testified that she and Petitioner became involved in a relationship in June, 1994. They lived in the flat, but she got the keys and paid the rent. She gave Petitioner a key at one time, but retrieved it when they broke up. She stated that they were broken up from February through September, 1995. She also testified that Petitioner did not have a key to the flat in September, 1995 and did not have permission to enter the flat unless she let him into the residence. Ms. Norris acknowledged that when she was not home, Petitioner had gained access to the home through a porch window prior to September, 1995. Trial Tr., pp. 179-92, 202.
Firefighters and police testified that they responded to an emergency call at 5937 Frontenac street around 8:00 p.m. on September 23, 1995. Police found the front door of the flat kicked in with damage to the lock area. The flat was also filled with smoke. Trial Tr., pp. 240-42. Firefighters recovered a beer bottle with fuel from the kitchen of the flat and found a burn pattern on the kitchen floor. Trial Tr., pp. 223-24.
In a pre-trial statement to police, Petitioner stated that he went to Ms. Norris' house around 8:00 p.m. with his friend, Wilbur Trice, on September 23, 1995 to get his clothes. He kicked in the door, went upstairs, got his clothes, and left with Mr. Trice. Petitioner admitted that he went into the kitchen to get some sandwiches while in the flat, but denied setting the fire. Trial Tr., pp. 258.
Petitioner's sister, Sheila Faison, testified that Petitioner lived with Ms. Norris on September 23, 1995. She also stated that she picked Petitioner up at 6:45 p.m. that day and took him to her house, and that he did not leave that night. Trial Tr., pp. 280-82.
Petitioner also testified on his own behalf at trial. He stated that he lived with Ms. Norris at 5937 Frontenac from June, 1994 until February, 1995, when he went to prison on a parole violation. He testified that Ms. Hamilton picked him up from the bus station on September 21, 1995 when he was released from prison and that she knew that he lived in the upper flat. Petitioner testified that he got into a fight with three men on September 23, 1995. When he returned to the flat on September 23, 1995 to get his clothes, he noticed the same three men on the street corner and became fearful. He rang the doorbell and knocked on the door to the flat, but no one answered, so he kicked the door open. He then ran inside, bolted the door, and packed his clothes before leaving. He denied setting the fire. Petitioner also claimed that he had a key to the flat, but did not have it with him on September 23, 1995. Trial Tr., pp. 295-318. Defense exhibits of Petitioner's voter's registration and driver's license showing an address of 5937 Frontenac were admitted into evidence.
At the close of trial, the jury found Petitioner guilty of second-degree home invasion, but acquitted him on the arson charge. The trial court sentenced Petitioner to 7-15 years imprisonment. At sentencing, Petitioner was given an opportunity to address the court and requested leniency. Trial Tr., p. 424. The trial court relied upon the facts underlying the arson charge in imposing Petitioner's sentence, which was at the high end of the guideline range. Trial Tr., pp. 424-28.
II. Procedural History
Following his conviction and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, raising the following claims:
I. Whether, where there is no restraining order prohibiting his entry and where there is no judgment of eviction, and where defendant has a possessory interest in a dwelling, that defendant can be charged with home invasion.
II. Whether it was an error for the court to sentence the defendant to the court's personal conclusion that defendant was guilty of arson, to continually interrupt defendant's allocution and to effectively deny defendant his right to allocution.
The Court of Appeals affirmed Petitioner's conviction in an unpublished per curiam decision. People v. Johnson, No. 205015 (Mich.Ct.App. June 1, 1999).
Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied because the Court was "not persuaded that the questions presented should be reviewed." People v. Johnson, No. 115171 (Mich. Feb. 29, 2000).
Petitioner also filed a previous petition for writ of habeas corpus with this Court on May 4, 1999, which was dismissed without prejudice for failure to exhaust state court remedies. Johnson v. Stine, No. 99-CV-72192-DT (E.D. Mich. Feb. 28, 2000).
Petitioner filed the present petition for writ of habeas corpus on April 4, 2000, raising the following claims:
I. Insufficient evidence to convict of home invasion.
II. Trial court erred at sentencing defendant based on its own conclusion that defendant was guilty of arson.
III. Defendant's right to allocution was denied.
Respondent filed an answer to the petition on January 12, 2001. Petitioner filed a reply to that answer on January 25, 2001.
III. Standard of Review
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 Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d) (1996).
In Williams v. Taylor, ___ U.S.___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(l), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (I) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(l) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Discussion A. Insufficient Evidence Claim
Petitioner first claims that the evidence was insufficient to convict him on the home invasion charge because he resided at his girlfriend's flat and had a right to be on the premises. In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, Huynh v. King, 95 F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995), this Court must determine whether the state court's application of the Jackson standard was reasonable.
In this case, the Michigan Court of Appeals applied the Jackson standard and concluded that there was sufficient evidence to support his conviction. The Court of Appeals stated:
Under MCL 750.1 110a(3); MSA 28.267, a person is guilty of second-degree home invasion if(l) he breaks and enters a dwelling with intent to commit a felony or a larceny in the dwelling, or, (2) a person enters without permission with intent to commit a felony or a larceny in the dwelling. Defendant claims that he had permission from both the complainant and complainant's landlord to enter the upstairs flat. A rational trier of fact could conclude, however, that defendant did not have permission to enter the flat.
Although complainant testified that defendant once had a key, she denied giving him a key during the period in which the incident took place. Complainant also testified that defendant did not pay rent and only stayed at the flat off and on when they were together. Indeed, the longest time defendant ever stayed with complainant was one month. The fact that defendant had to kick the door down to get into the flat on September 23, 1995, supports complainant's contention that he did not have a key.
In addition, complainant's landlord, who lived in the flat downstairs, did not consider defendant a resident of the flat. She testified that he did not pay rent and that she never provided him with keys to the flat. When viewed in the light most favorable to the prosecution, this evidence was sufficient for a rational trier of fact to find that defendant did not have permission to enter the flat.Johnson, slip op. at 1-2.
Having carefully reviewed the record, this Court cannot conclude that the Michigan Court of Appeals' determination that the facts supported Petitioner's conviction for second-degree home invasion is unreasonable. Both his girlfriend and the landlady testified that Petitioner did not have a key to the residence at the time of the incident and that he did not have permission to enter the flat. The landlady saw Petitioner leaving the flat shortly before the fire broke out and police found that the door to the flat had been kicked in when they responded to the landlady's emergency call. Given this evidence, a rational trier of fact could find that the prosecution established beyond a reasonable doubt that Petitioner was guilty of second-degree home invasion.
Petitioner's insufficient evidence claim essentially challenges the inferences that the jury drew from the testimony presented at trial and challenges the weight to be accorded certain pieces of evidence. However, it is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). Given the evidence presented at trial, this Court finds that a rational trier of fact could have found that Petitioner was not a resident of the flat nor did he have permission to enter the flat on September 23, 1995 beyond a reasonable doubt. Petitioner is thus not entitled to habeas relief on this claim.
B. Sentencing Claim
Petitioner also claims that he is entitled to habeas relief because the trial court indicated its belief that Petitioner was guilty of arson (despite his acquittal on the charge) and imposed a harsher sentence of 7-15 years imprisonment on that basis. To the extent that Petitioner asserts a violation of the Michigan Constitution or alleges an error of state sentencing law, his claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Draughn v. Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992) (federal courts cannot review a state's alleged failure to adhere to its own sentencing procedure). A federal court will not review a state court's decision on a matter of purely state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Long v. Smith, 663 F.2d 18, 22-23 (6th Cir. 1981).
Furthermore, wide discretion is accorded a state trial court's sentencing decision. Claims arising out of that decision are not generally cognizable upon federal habeas review, unless the petitioner can show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law. See Haynes v. Butler, 825 F.2d 921, 923 (5th Cir. 1987). In this case, the Michigan Court of Appeals concluded that the trial court did not abuse its discretion in sentencing Petitioner because there was a preponderance of evidence that he committed arson and his sentence was within the state sentencing guidelines range. Johnson, slip op. at *2-3. This Court agrees. Under Michigan law, the trial court could consider the facts underlying the arson charge as an aggravating factor in sentencing Petitioner. See People v. Purcell, 174 Mich. App. 126, 130-31, 435 N.W.2d 782 (1989). Moreover, Petitioner was convicted of second-degree home invasion and his sentence of 7-15 years imprisonment is within the statutory limits and the guideline range. The trial court exercised its discretion in sentencing Petitioner and properly determined that such a sentence was proper given the nature of his crime. Habeas relief is not warranted under these circumstances.
C. Allocution Claim
Petitioner's final habeas claim is that his due process rights were violated because the trial court failed to provide him with a sufficient opportunity for allocution at sentencing. However, there is no constitutional right to allocution under the United States Constitution. See Hill v. United States, 368 U.S. 424, 428 (1962); Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997). Although the right of allocution existed at common law and is required by statute in several states, the right of allocution is not guaranteed by the United States Constitution. United States v. Waters, 158 F.3d 933, 943 (6th Cir. 1998). Petitioner has thus failed to state a cognizable claim for federal habeas relief.
Moreover, the Court notes that, even if Petitioner's claim were cognizable, he has not established a due process violation. The record reveals that the trial court afforded Petitioner the opportunity for allocution at sentencing. Petitioner has failed to demonstrate that his state or federal constitutional rights were violated. He is thus not entitled to habeas relief on this claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to habeas relief on the claims presented. Accordingly, the Court DENIES the petition for writ of habeas corpus.
IT IS SO ORDERED.