Opinion
Case Number: 02-71220
September 17, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Jimal Lacey (Petitioner) is a state inmate at the Southern Michigan Correctional Facility in Jackson, Michigan serving a life sentence. Petitioner has filed a pro se petition for a writ of habeas corpus claiming that he is incarcerated in violation of his constitutional rights. The petition raises claims of 1) violation of the privilege against self-incrimination, 2) improper jury instructions, 3) insufficient evidence, 4) ineffective assistance of appellate counsel, and 5) improper issuance of the arrest warrant. Respondent filed a response asserting that Petitioner's claims are procedurally defaulted and/or lack merit. For the reasons which follow, the petition will be denied.
II. Procedural History
Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of assault with intent to commit murder, M.C.L. 750.83; first-degree criminal sexual conduct, M.C.L. 750.520b(1)(e); and being a third habitual offender, M.C.L. 769.11. In August of 1997, Petitioner was sentenced to life imprisonment.
It is not clear from the record what terms of imprisonment Petitioner was sentenced to for each of the charges.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Whether the defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963 when the trial court permitted the introduction of other acts evidence.
II. Defendant was deprived of his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963 when the trial judge's instruction to the jury on other acts evidence was limited, incorrect, and not understandable.
III. Defendant was deprived of his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963 when the trial judge instructed the jury if they believed the complainant the jury had enough evidence to conclude the crimes occurred.
The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Lacey, No. 206391, 1999 WL 33432983 (Mich.Ct.App. Nov. 2, 1999).
Petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented on direct review to the Michigan Court of Appeals and one additional claim:
IV. Whether the defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963 Section 20 when defendant's trial counsel ineffectively assisted in trial.
The Michigan Supreme Court denied leave to appeal. People v. Lacey, 462 Mich. 869 (2000).
In April of 2001, Petitioner filed a motion for relief from judgment with the trial court, raising the following claims:
I. Whether the defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963, when the trial court permitted a pending charge in the form of other acts evidence, without elaborating on the "host of things" to be done in case of incrimination, thereby denying defendant of his 5th Amendment privilege under the United States Const. V and U.S. Const. VI.
II. Whether the defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution of 1963, when the evidence presented to the jury and magistrate was insufficient to support a bindover or a guilty finding of the charge of assault with intent to commit murder.
III. Whether the defendant was denied his right to due process and a fair trial under the 14th and 6th Amendments to the United States Constitution and under Section 20, Article 1, Michigan Constitution of 1963, when appellate counsel failed to raise meritorious arguments requested by defendant.
IV. Whether the defendant was denied his right to due process and a fair trial under the 14th and 6th Amendments to the United States Constitution and under Section 20, Article 1, Michigan Constitution of 1963, when defendant was denied effective assistance of trial counsel.
V. Whether the defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 20, Article 1, Michigan Constitution of 1963, when the trial court failed to recognize jurisdiction in his criminal proceedings.
On May 15, 2002, the trial court denied the motion as barred by M.C.R. 6.508(D). The trial court also stated that the claims lacked merit. The Michigan Court of Appeals denied Petitioner leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Lacev, No. 234592 (Sept. 13, 2001). The Michigan Supreme Court denied Petitioner's application for leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Lacev, 465 Mich. 961 (2002).
Thereafter, Petitioner filed a petition for a writ of habeas corpus presenting the following claims:
I. Conviction obtained by violation of privilege of self-incrimination. The judge ordered me to answer on the stand in front of the jury to a question involving a pending charge in the form of other acts evidence. The pending charge was in front of a different judge, there were two different trial attorneys and the same prosecutor.
II. Trial judge instructions to jury on other acts evidence were not correct. Trial judge only told the jury that they should not find defendant guilty because of other acts evidence and that he would tell them later that what they heard would later be explained and he never did even though he was asked for a limited instruction.
III. Evidence was insufficient to support a bind over/conviction. With circumstantial evidence limited to testimony and other acts evidence, there was nothing in any part of the testimonial to infer an attempt murder conviction.
IV. Appellate counsel failed to raise meritorious arguments. After writing several letters asking that certain issues needed to be raised, appellate counsel refused even after seeing in the transcripts of a different trial that a certain issue was in question by attorney addressing the trial judge.
V. Whether defendant was denied his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 20, Article 1, Michigan Constitution of 1963, when the trial court failed to recognize jurisdiction in this criminal proceeding when the complaint inadequately supported the issuance of an arrest warrant guaranteed by the Fourth Amendment as applied to the States through the 14th Amendment.
III. Facts
The material facts as gleaned from the record follow:Petitioner's convictions arise out of the rape and strangulation of Darcy Yost in October of 1993. Yost testified that she was a crack cocaine addict at that time. She payed for her cocaine and supported herself through prostitution. Yost testified that Petitioner drove up near her as she was walking the street in the early morning hours and asked her if she was "dating." Yost explained that this was street slang for prostituting. Yost told Petitioner that she was and got into his car. Petitioner said that his name was Stevie. Petitioner told her that he wanted her to perform oral sex on him and she agreed to do so. Then, they began conversing about a variety of subjects, including their children, which Yost said was unusual under the circumstances. They learned that they each had twelve year old daughters. They drove around for a while and stopped briefly, but saw a police car and began driving again. Petitioner asked Yost if she would go with him to his home and do it there. Yost testified that this made her somewhat anxious and uncomfortable, but that she agreed, because she needed the money, it would lessen her chances of being arrested, and she trusted Petitioner more than most "dates" because of their non-sexual conversation.
Yost went into Petitioner's house. Petitioner asked Yost to be quiet because his daughter was sleeping. Yost testified that she saw a number of girl's clothing items hanging and laying about which reassured her that he was telling the truth about living with his daughter. Petitioner then lead her into the basement which had two rooms, one of which had a bed in it. Yost then testified that Petitioner began strangling her and that she was unsure whether or not she lost consciousness. Yost then testified that at some point thereafter (when Yost was conscious) Petitioner had non-consensual sexual intercourse with her and that she was afraid he was going to kill her.
Shortly thereafter, Petitioner offered to take Yost back to where he had picked her up; Yost agreed. Before taking her there, Petitioner stopped at an Old Kent Bank ATM and withdrew some money and gave it to Yost. Petitioner also left Yost his pager number.
On subsequent occasions, Yost saw Petitioner driving the streets and he acted as if nothing unusual had happened.
Yost informed police about her encounter with Petitioner three years later, in October of 1996, when the police were questioning her about a deceased friend.
This three year lapse of time has apparently not been an issue at any time in the case.
Although not clear from the record, presumably police obtained an arrest warrant for Petitioner shortly after Yost's statement.
In addition to Yost's testimony, evidence of other acts was admitted against Petitioner at trial. Brenda Van Beek and Lisa Gochenour each testified that they had lived with Petitioner and had children with him. Gochenour testified that, at various times during her relationship with Petitioner, he choked her, and that he often wanted to have sex after fighting with her. Van Beek testified that Petitioner had never choked her, but she admitted previously making a written statement to the police alleging that he had.
Charlene Brown testified that she was a prostitute and that she agreed to perform oral sex on Petitioner in his van for twenty dollars. She also testified that Petitioner strangled her with an electrical cord and that she passed out. After that encounter, Petitioner drove Brown to a gas station where she got out and called the police. Brown also testified that she had consensual sex with Petitioner several times after that incident.
A police officer testified that he interviewed Petitioner about the incident with Brown and Petitioner stated: "I admitted that I did that thing to Charlene, and that was a stupid mistake. I lost it, and I'm sorry I choked her. . . ."
Jillian Welcher testified that she was a prostitute and a cocaine addict. Welcher testified that on one occasion with Petitioner he told her to stop "spreading rumors" about him. Petitioner then began pulling a pair of shoestrings tautly around her neck, but that the shoestrings broke and she was able to run away.
Petitioner testified on his own behalf. Petitioner admitted taking Yost to a home but that he took her there with another prostitute named Jody. He denied having sex with or strangling Yost.
IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241, et seq. ("AEDPA") sets forth the standard of review a federal court must apply when reviewing applications for a writ of habeas corpus that were filed after the effective date of the act, April 24, 1996.
28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.28 U.S.C. § 2254(d).
The United States Supreme Court has explained that "[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" or " 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, 120 S.Ct. 1495, 1519-20(2000).
Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).
B. Procedural Default and Petitioner's Third. Fourth, and Fifth Claims 1.
Respondent argues that Petitioner's third, fourth, and fifth habeas claims (his claims of insufficient evidence to support a bind over and to convict, ineffective assistance of appellate counsel, and lack of trial court jurisdiction due to an invalid arrest warrant) are procedurally defaulted. Respondent also says that Petitioner's first claim is barred by procedural default. That claim is addressed in a separate section.
The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Application of the cause and prejudice test may be excused if a petitioner presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30.
2.
The Court must begin its analysis of whether Petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. Coleman, 501 U.S. at 729-30. The last reasoned opinion denying Petitioner's motion for relief from judgment was the trial court's order denying his motion for relief from judgment.
With respect to Petitioner's claims of insufficient evidence to support a bind over and/or a conviction, and failure of the trial court to recognize that it lacked jurisdiction to try Petitioner due to a defective arrest warrant, the trial court found that these claims were barred by M.C.R. 6.508(D)(3) because Petitioner could have raised these claims in his appeal of right, but failed to do so. The state court's reliance on Petitioner's failure to present these claims in his appeal of right was an adequate and independent state ground on which to decline to review Petitioner's claim. See Luberda v. Trippett, 211 F.3d 1004, 1007 (6th Cir. 2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked as to claims three and five. The Court therefore may not review Petitioner's insufficient evidence claim and jurisdiction-arrest warrant claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.
Petitioner claims that his appellate attorney's ineffectiveness constitutes cause for these defaults, which also forms the basis for Petitioner's Fourth Claim. The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Colemaa 501 U.S. at 753. The Supreme Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted). In order to establish ineffective assistance of counsel, a petitioner must show that his attorney's performance was deficient and that that deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687(1984).
In order to determine whether petitioner received ineffective assistance of appellate counsel, the Court must first examine the merits of the claims which appellate counsel might have presented in Petitioner's direct appeal, but failed to do so.
Petitioner claims that he received ineffective assistance of appellate counsel because appellate counsel did not present his claim that there was insufficient evidence presented to bind him over for trial at his preliminary examination and insufficient evidence presented at trial to support his convictions. This claim lacks merit. At the preliminary examination, Yost testified that Petitioner strangled her with a rope causing her great physical and emotional distress and that he performed non-consensual intercourse with her.
Probable cause at the preliminary examination stage requires a quantum of evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.See People v. Yost, 468 Mich. 122, 659 N.W.2d 604 (2003).
The elements of assault with intent to commit murder are: (1) an assault, (2) with the specific intent to commit murder, (3) which, if successful, would make the killing murder. People v. Cochrarn, 155 Mich.App 191, 193 (1986). The requisite intent to kill for the crime of assault with intent to commit murder may be proved by inference from any facts in evidence. People v. Lawton, 196 Mich.App 341, 350 (1992). Moreover, questions of credibility and intent should be left to the trier of fact to resolve. People v. Daniels, 172 Mich.App 374, 378; 431 N.W.2d 846 (1988).
Based on the testimony at the preliminary exam, there was sufficient evidence to bind Petitioner over on a charge with assault with intent to commit murder. There is no question that the crime would have been murder if Yost had died or that a rope is a dangerous weapon when employed to strangle someone, or that the Yost's testimony established probable cause to believe that Petitioner assaulted her. As to intent, Yost's testimony was also sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that, while he was strangling the her, Petitioner intended to kill her.
As to the criminal sexual conduct charge, the elements of first-degree criminal sexual conduct under M.C.L. 750.520b(1)(e) are sexual penetration, lack of consent, and the defendant's use of a dangerous weapon. Yost's testimony was more than sufficient to establish probable cause to believe that Petitioner perpetrated a first-degree criminal sexual conduct assault upon her.
Therefore, an attempt to challenge the bindover in the Michigan Court of Appeals would have failed and it was not ineffective assistance of counsel to decline to challenge the bind over.
As to whether there was sufficient evidence for conviction, the same essential facts were testified to by Yost. Further, additional evidence was admitted that Petitioner had strangled and/or choked various other women, all of whom were or had been prostitutes, before and/or having had sex with them. Based on this testimony, there was more than sufficient evidence for a rational trier of fact to have found Petitioner guilty of the charged crimes beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Thus, it was not ineffective assistance of appellate counsel to decline to present this claim on direct review.
The trial court did not explicitly address Petitioner's challenge to his arrest warrant. Petitioner claims that his arrest warrant was defective because an error (later corrected in an amended complaint) in the address at which the crime occurred resulted in his preliminary examination being held in a different district court than it would have been otherwise. Petitioner repeats his arguments that the evidence supporting his bindover was insufficient, and then speculates that, if his preliminary examination had been held in the proper court, the magistrate would have found no probable cause to bind him over for trial. He contends that appellate counsel was ineffective for failing to raise his claim on direct appeal.
Petitioner cannot show that appellate counsel was ineffective for failing to raise this issue on direct appeal. As previously noted, sufficient evidence was presented at the preliminary examination to bind Petitioner over for trial on both the assault charge and the criminal sexual conduct charge. It is pure speculation that a different magistrate would have found otherwise. Moreover, since an evidentiary deficiency at the bindover stage does not entitle a defendant to reversal after a fair trial, there is no reason to believe that a mere challenge to a mistake in venue at the bindover stage where there was no evidentiary insufficiency would have prevailed in the appellate courts. People v. Hall, 435 Mich. 599, 601-03 (1990). Therefore, appellate counsel was not ineffective for failing to raise such a claim in direct appeal.
Furthermore, such a claim would not merit habeas relief even if it was considered on the merits by the Court. The Supreme Court has held that even if petitioner's arrest was 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). Petitioner was found guilty beyond a reasonable doubt on the basis of untainted evidence which was sufficient to prove the elements of his crimes beyond a reasonable doubt to a rational jury.
Because Petitioner has failed to establish that his attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural defaults. His claims are defaulted therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298 (1995). Petitioner, however, has not presented any evidence of his actual innocence nor shown that failing to review his defaulted claims would result in a miscarriage of justice.
For the above-stated reasons, Petitioner's third, fourth, and fifth habeas claims are barred by his procedural defaults.
C. Procedural Default and Petitioner's First Claim
In his first claim, Petitioner argues that his Fifth Amendment privilege against self-incrimination was violated when the trial judge ordered him to answer questions about Brown asked of him by the prosecution on cross-examination. Brown was a prostitute who testified that Petitioner had sex with her and strangled her with an electrical cord around her neck until she passed out. Brown was also the complainant in a separate criminal case pending against Petitioner at the time of the Yost trial.
Petitioner was convicted of assault with a dangerous weapon, M.C.L. 750.82, and third degree criminal sexual conduct, M.C.L. 750.520d(1)(a), in the Brown case. See People v. Lacev, 1999 WL 33438823 (Mich.Ct.App. July 9, 1999)
Petitioner also contends that trial counsel was ineffective for failing to object to questions concerning Brown and appellate counsel was ineffective for failing to present in his direct appeal his Fifth Amendment challenge to the prosecutor's questions about Brown and the judge's orders to answer them.
The Michigan courts found that Petitioner's Fifth Amendment claim was procedurally defaulted by his failure to raise it in his appeal of right. Petitioner claims that ineffective assistance of counsel provides cause for his default. As with his Third, Fourth, and Fifth Claims, the Court will examine Petitioner's Fifth Amendment claim to determine whether appellate counsel was ineffective for failing to raise it on direct appeal.
The Fifth Amendment provides, in relevant part, that no person " shall be compelled in any criminal case to be a witness against himself." Though the amendment refers only to criminal cases, "[i]t has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also `privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
Here, Brown testified that Petitioner offered her twenty dollars to perform oral sex. Brown testified in detail about how Petitioner has sex with her and strangled her. Petitioner, through his testimony, attempted to minimize and explain any violence he had inflicted on his victims as an understandable response to unacceptable behavior on their parts. As noted above, Brown was the only one of Petitioner's accusers who explicitly testified that he had choked her unconscious. Thus, Petitioner's testimony that he had never choked anyone unconscious was a direct denial of his guilt of Brown's allegations. Taken together, this testimony shows that Petitioner did not assert his Fifth Amendment privilege in matters relating to Brown on direct examination. Petitioner only attempted to assert his Fifth Amendment privilege when asked if he had had consensual sex with Brown (who was a minor).
As the Sixth Circuit has stated, "`[a]fter taking the stand, the defendant cannot proceed to answer those questions which reflect favorably upon his innocence and refuse to answer those questions which tend to indicate his guilt' United States v. Doremus, 414 F.2d 252, 253 (6th Cir. 1969). This is especially true when, as here, the defendant's testimony focuses the court's attention on a time period when prior bad acts were alleged." Adridge v. Marshall, 765 F.2d 63, 67 (6th Cir. 1985).
Petitioner therefore waived his Fifth Amendment privilege regarding answering questions about Brown by his testimony regarding her and her allegations on direct examination and his initial answer on cross-examination. It follows that appellate counsel was not ineffective for failing to raise this claim in Petitioner's direct appeal. Therefore, this claim is barred by Petitioner's procedural default and lacks merit.
It is not entirely clear whether Petitioner intended to present a challenge to the admission of other acts evidence in this Court or not. As it appears that Petitioner may have intended to raise this issue in this Court, it is addressed.
A federal habeas court will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of law. The inquiry in reviewing a claim of improper admission of prior bad acts evidence is whether the evidence was rationally connected to the crime charged and, if it was not, whether its admission was so prejudicial as to deprive the defendant of a fundamentally fair trial. Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980).
Here, the testimony and/or statements of the other acts evidence witnesses concerning Petitioner's choking of them before or after having sex with them was rationally connected to the crimes charged. As noted by the Michigan Court of Appeals, "the primary purpose of the evidence was to establish defendant's identity as the perpetrator of this attack by showing a similar method of sexual assault, that being strangulation of his prostitute victims as a prerequisite for his sexual performance and gratification." People v. Lacey, No. 206391 at 1, 1999 WL 33432983 at * 1. The other acts evidence was relevant to establishing Petitioner'smodus operandi and "the evidence was asserted to be demonstrative of a signature method of strangulation by ligature and also an arguable signature trigger; the trigger being a sexual dysfunction exhibited by defendant's inability to get an erection until he choked his victims."Id. at 2, Id. at * 2. Because this evidence was rationally related to the crimes charged, Petitioner has not shown that admission of this evidence was improper or deprived him of a fair trial. Therefore, this claim does not entitle him to habeas relief.
C. Petitioner's Second Claim
In his second claim, Petitioner says that he is entitled to habeas corpus relief because the trial court gave improper instructions on the proper use of the other acts evidence in reaching a verdict. An erroneous jury instruction warrants habeas corpus relief only where the instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991).
The Michigan Court of Appeals held that the trial court's instruction, viewed in its entirety was not erroneous:
[D]efendant contends that both the trial court's preliminary and closing instructions regarding the other acts evidence were improper. We disagree. Defendant argues that the court erred in not giving the standard instruction CJI2d 4.11, thereby not providing specific instruction on how to use the evidence. Because the Michigan Criminal Jury Instructions do not have the official sanction of the Michigan Supreme Court, trial courts are not required to use the standard instructions. People v. Petrella, 424 Mich. 221, 277; 380 N.W.2d 11 (1985). The trial court's duty is to instruct the jury with regard to the law applicable to the case, M.C.L. § 768.29; MSA 28.1052, a duty openly recognized by the trial court as evidenced by its statement, in response to defendant's general objection, that it crafts instructions to deal with the particular case at hand and that it believed its elaboration on the standard instructions had better, but nevertheless correctly, explained the law to the jurors.
We agree with the trial court's belief. Defendant claims that the court's preliminary instruction that the jurors were to use the evidence if it " helps explain what happened here" essentially indicated that they could use defendant's prior conduct to determine if he acted in conformity therewith in the instant case. Though the court's instruction concededly was not as specific as an instruction directing the jurors that they were to use the evidence only if it tended to show a plan or scheme that defendant repeatedly used, see CJI2d 4.11(2)(e), defendant's argument fails to note that in both preliminary and closing instructions, the court unequivocally instructed the jurors that they were not to convict defendant based on these other acts, nor were they to base a finding of guilt on a conclusion that defendant was more likely to have committed this crime because of other bad conduct. See CJI2d 4.11(3). We believe that any insufficiency in the court's direction regarding for what purposes the jurors could use the evidence, was adequately compensated for by the court's clear direction as to how the evidence was not to be used. Viewing the instructions as a whole, we conclude that they sufficiently protected defendant's rights.People v. Lacev, No. 206391 at 4, 1999 WL 33432983 at *4.
Petitioner has failed to show that the state court's decision was contrary to or an unreasonable application of Supreme Court precedent or that the jury instruction regarding the other acts evidence, taken in context, violated his right to due process.
V. Conclusion
For the reasons stated above, the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED.
SO ORDERED.