Opinion
Case No.: 01-10205-BC
February 9, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Willie B. Larry, a state inmate currently incarcerated at the Ryan Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which alleges that he is being held in custody by the Michigan Department of Corrections in violation of his constitutional rights. The petitioner challenges his convictions for first-degree murder, Mich. Comp. Laws § 750.316(1)(a), for the stabbing death of Misty Jefferson and manslaughter, Mich. Comp. Laws § 750.322, for the intentional killing of her quick unborn child on the grounds of lack of sufficient evidence, prosecutorial misconduct, improper jury instructions, and ineffective assistance of counsel. The Court finds that some of the petitioner's claims are procedurally defaulted, and the others lack merit. The Court, therefore, will deny the petition.
I.
The petitioner's conviction results from the stabbing death of Misty Jefferson on June 3 or 4, 1997, and the consequent death of her unborn child. Ms. Jefferson's eight-year-old son, Dayvon Jefferson, testified that in June 1997, the petitioner lived in a house with him, his mother, and his brothers and sisters. Dayvon testified that he and his brother Jeremy were watching television in the living room one night in June when he heard the petitioner and his mother arguing. Dayvon went to his mother's bedroom to find out what was happening. He saw his mother lying on her back on the bed, and the petitioner standing over her with a knife in his hand. The petitioner was holding Ms. Jefferson's leg down with his hand. Dayvon testified that he then left his mother's room and went to bed. After Dayvon had gone to bed, he heard the petitioner leave the house.
Ms. Jefferson's nine-year-old son Jeremy Fisher also testified at trial. Jeremy stated that on the night his mother was killed, he and Dayvon were watching television in the living room. Jeremy testified that he heard his mother and the petitioner fighting. Jeremy recalled that his mother and the petitioner were arguing about another man. Jeremy then got a plastic bat and went into his mother's room to see if he could help her. When he entered the bedroom, the petitioner and Ms. Jefferson stopped arguing. The petitioner then left the bedroom and went down to the basement. Ms. Jefferson told Jeremy to go to bed, which he did. Jeremy testified that when he awoke the next morning, he went into his mother's bedroom. He slipped on blood when he entered the room and saw his mother lying on the bed with blood on her back and her neck and all over the bed and the floor. Jeremy then went to a neighbor's house to call for help.
Dr. Cheryl Loewe, Assistant Wayne County Medical Examiner, testified that she performed an autopsy on Ms. Jefferson on June 5, 1997. Dr. Loewe stated that Ms. Jefferson died from multiple stab wounds, and that she had defense wounds on both hands. Dr. Loewe further testified that Ms. Jefferson was eight to nine months pregnant when she was killed.
Javon Martin, the petitioner's girlfriend, testified that on June 6, 1997 she went to the petitioner's home. She stated that the petitioner opened the door, grabbed her, and said, "I did it." Ms. Martin asked him what he did and the petitioner replied, "I killed Misty and the baby."
The petitioner presented an alibi defense. The petitioner's mother, Arelia Clermond, testified that on the night of June 3, 1997 the petitioner came to her home at approximately 11:00 p.m. She said that he went straight upstairs to bed where he stayed until morning. Nina Everette, who was staying with the petitioner's mother, testified that at about 11:00 p.m. on June 3 the petitioner came to his mother's house and spent the entire night with her. Everette testified that the petitioner did not leave until approximately 7:00 a.m. the next morning.
Following a jury trial in the Wayne County, Michigan Circuit Court, the petitioner was convicted of first-degree murder and manslaughter. On March 6, 1998, he was sentenced to life imprisonment for the first-degree murder conviction and ten to fifteen years imprisonment for the manslaughter conviction.
The petitioner filed an appeal of right in the Michigan Court of Appeals presenting the following claims:
I. Whether defendant was deprived of his right to due process under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution when he was convicted of first[-]degree premeditated murder when the prosecution failed to prove beyond a reasonable doubt the elements of premeditation and deliberation.
II. Whether defendant was deprived of his right to due process and of a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution when the trial prosecutor made improper and prejudicial arguments in summation to the jury.
III. Whether defendant was deprived of his right to due process and of a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution when the trial court gave an unbalanced supplemental instruction to the jury after they had begun their deliberations.
IV. Whether defendant was deprived of his right to due process and of a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution when the trial court gave an inadequate instruction to the jury on the law of alibi.
V. Defendant was deprived of the effective assistance of counsel.
The state court of appeals affirmed the petitioner's conviction. People v. Larry, No. 212114, 2000 WL 33529624 (Mich.Ct.App. March 3, 2000). The petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court presenting the same claims, which the supreme court denied on August 22, 2000. People v. Larry, 463 Mich. 860, 617 N.W.2d 557 (Mich. 2000).
Thereafter, the petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. Defendant was deprived of his right to due process under the 14th Amendment of the United States Constitution [because the State did not present sufficient evidence of premeditation and deliberation].
II. Defendant was deprived of his right to due process and a fair trial afforded him under the United States Constitution [because of the prosecutor's misconduct].
III. Defendant was deprived of his right to due process and a fair trial under the United States Constitution, when the trial court gave an unbalanced supplemental instruction to the jury after they had begun their deliberations.
IV. Defendant was deprived of his due process when the trial court gave an inadequate instruction to the jury on [the] law [relating to his alibi defense].
V. Defendant was deprived of effective assistance of counsel afforded him under the United States Constitution.
II.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336(1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.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, 123 So. 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, 529 U.S. at 405-06.
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, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner claims that he is entitled to habeas corpus relief because the State failed to present sufficient evidence at trial of premeditation and deliberation to sustain his conviction for first-degree murder. There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is 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 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Normally, pursuant to 28 U.S.C. § 2254(d)(1), this Court must determine whether the state court's application of the Jackson standard was contrary to or an unreasonable application of Supreme Court precedent. However, where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision. This independent review requires the federal court to "review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000).
The last state court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, stated, in pertinent part:
In reviewing a challenge to the sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. Reasonable inferences and circumstantial evidence may constitute satisfactory proof of the elements of the offense.
In People v. Kelly, 231 Mich. App. 627, 642; 588 N.W.2d 480 (1998), this Court outlined the elements of first-degree murder:
In order to convict a defendant of first-degree murder, the prosecution must prove that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. Premeditation and deliberation require sufficient time to allow the defendant to take a second look. The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing.
In addition, [p]remeditation may be established through evidence of the following factors: (1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide. Although the brutal nature of a killing alone does not justify an inference of premeditation and deliberation, it can be considered as one of the factors to justify such a conclusion. Furthermore, defensive wounds on the victim can also be evidence of premeditation.
In the instant case, Davon Jefferson, the victim's eight-year-old son, testified that he entered his pregnant mother's bedroom the night of the murder because he heard arguing. Jefferson testified that he observed defendant standing over the victim with a knife in his hand, holding down the victim's leg with his free hand. Jeremy Fisher, the victim's nine-year-old son, testified that he, too, entered the victim's room that night. Fisher testified that he was carrying a plastic baseball bat to protect himself and his mother because he heard defendant and the victim arguing. He testified that defendant and the victim were arguing over defendant's accusation that the victim had sexual relations with another man. Fisher further testified that he observed defendant trying to move the victim's hands out of the way as she attempted to protect herself. Both boys testified that defendant subsequently left the victim's bedroom. Jefferson testified that defendant left the house, while Fisher stated that defendant merely went into the basement. Both boys testified that the victim was still alive when defendant left the bedroom and they went to bed that night.
Fisher testified that he discovered the victim, covered in blood, when he entered her bedroom the following morning. Fisher testified that he observed blood on the bed, the walls and on the floor. The medical examiner testified that the victim died of multiple stab wounds to the neck and chest, and that the victim had various defensive wounds on both hands. The medical examiner opined that the victim bled to death, and that her fetus died as a result of the victim's death. Defendant's girlfriend, Javon Martin, testified that one or two days after the murder defendant told her that he had killed the victim and her baby. Martin testified that defendant indicated he had stabbed the victim, and that defendant stated he had killed the victim because there had been a man in the house.
Defendant's actions before the killing clearly evidence his opportunity to take a second look before acting. Defendant was seen standing over his pregnant girlfriend with a knife in his hand, accusing her of having sexual relations with another man. His retreat, whether to the basement or actually out of the house, provided ample time for defendant to premeditate and deliberate. It can be reasonably inferred that defendant killed the victim after returning to the bedroom sometime after the victim's sons left and went to bed. Furthermore, the brutal nature of the crime itself and the defensive wounds on the victim's hands provide additional evidence of defendant's ability to premeditate and deliberate. As the victim apparently bled to death, defendant could also have summoned help before her demise.
We hold that when viewed in the light most favorable to the prosecution, a rational trier of fact could conclude beyond a reasonable doubt that the evidence demonstrated that defendant acted with premeditation and deliberation in killing the victim.People v. Larry, 2000 WL 33529624, at *1-2 (some citations and quotation marks omitted).
The state appellate court correctly described the requirements of Michigan law. A person commits first-degree murder under Michigan law when intentionally killing another "by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing," Mich. Comp. Laws § 750.316(1)(a), or by perpetrating a murder in the course of certain felonies, such as robbery. Mich. Comp. Laws § 750.316(1)(b). In other words, first-degree premeditated murder, the form of first-degree murder charged in this case, requires a finding that the defendant committed a homicide with premeditation and deliberation. See People v. Morrin, 31 Mich. App. 301, 328, 187 N.W.2d 434, 449 (1971). "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." Id. at 329, 187 N.W.2d at 449. Under Michigan law, while the minimum time required to premeditate "is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" People v. Vail, 393 Mich. 460, 469, 227 N.W.2d 535, 539 (1975). "[A]n opportunity for a `second look' may be merely seconds, minutes, or hours, dependant on the totality of the circumstances surrounding the killing." Johnson v. Hofbauer, 159 F. Supp.2d 582, 596 (E.D. Mich. 2001) ( citing People v. Berthiaume, 59 Mich. App. 451, 456, 229 N.W.2d 497 (1975)). Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. See People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177, 180 (1993). Premeditation and deliberation may also be inferred from the type of weapon used and the location of the wounds inflicted. People v. Coddington, 188 Mich. App. 584, 600, 470 N.W.2d 478, 487 (1991). Use of a lethal weapon will support an inference of an intent to kill. People v. Turner, 62 Mich. App. 467, 470, 233 N.W.2d 617, 619 (1975).
The state appellate court also explicated the trial record and described the facts in light of the elements of the crime, adequately explaining how a rational fact finder could conclude that all of the essential elements of first-degree murder were proven beyond a reasonable doubt. The petitioner has not presented any evidence to show that the state court's findings of fact were erroneous. Therefore, according those findings of fact a presumption of correctness, see 28 U.S.C. § 2254(e)(1), this Court concludes that the state court of appeals' decision that all of the elements of first-degree murder were satisfied did not "result in a decision that . . . involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The petitioner is not entitled to federal habeas with respect to this claim.
B.
Next, the petitioner claims that he is entitled to habeas corpus relief because the prosecutor engaged in misconduct. The petitioner argues that certain statements made by the prosecutor in her closing and rebuttal statements rendered his trial fundamentally unfair. Specifically, the petitioner objects to the following statements:
1. But as [is] so typical in our society when a woman has information that hurts a man then we have to bring out all of her character flaws.
2. This is a passionate, passionate crime. And there's only [one] person with enough compassion or passionate towards her to have committed the crime, and that's Willie B. Larry. Nobody else had the motive.
3. Mr. Larry was a ruthless killer.
4. And I think that goes to show that she and mom didn't quite get their stories together and that's all they are, a story. And I think I used the word game playing, I wanted to know what game we're playing because that's exactly what they were playing with you. It's just a game in order to help their son and their friend and their partner, sex partner out, nothing more than that.
5. There was marijuana found in her home. Is there any evidence that it was hers. Maybe it was Mr. Larry's marijuana.
6. And, you know, this is a woman that he trust[s] with his deepest, darkest secret. I mean, I killed somebody. I killed two somebody[s]. But, now he doesn't think that you should trust her and believe her.
The Michigan Court of Appeals denied the petitioner's claims of prosecutorial misconduct, holding:
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. After a thorough and contextual review of the record, we hold that the prosecutor's remarks were valid inferences stemming from evidence in the record and did not constitute misconduct. Defendant was not denied a fair and impartial trial.People v. Larry, 2000 WL 33529624, at *2 (citations omitted).
Prosecutorial misconduct will form the basis for a new trial, and habeas relief, only if the relevant misstatements were so egregious so as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-46 (1974); see also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999) (stating that "[p]rosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation"). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances surrounding each individual case or use." Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). The Court must examine "`the fairness of the trial, not the culpability of the prosecutor.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep't of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993)). In deciding whether prosecutor misconduct warrants habeas corpus relief, the court must first decide whether the prosecutor's comments were improper and then determine whether the remarks were sufficiently flagrant by considering four factors: (1) the likelihood that the statements would prejudice the defendant or mislead the jury; (2) whether the remarks were isolated or part of a pattern; (3) whether the prosecutor's statements "were deliberately or accidentally presented to the jury"; and (4) whether the other evidence against the defendant was substantial. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000) (citing United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994)).
"[A] state's attorney is free to argue that the jury should arrive at a particular conclusion based upon the record evidence. . . ." Caldwell, 181 F.3d at 737. Further, a prosecutor may argue all reasonable inferences that may be drawn from the evidence admitted at trial as they relate to the prosecutor's case. See United States v. Francis, 170 F.3d 546, 552 (6th Cir. 1999). In her comments enumerated above as two through six, the prosecutor was arguing that the jury should arrive at a particular conclusion based upon the evidence presented. Such arguments are proper and do not implicate the petitioner's right to a fair trial.
The prosecutor's comment regarding the tendency of society to unfairly call into question the character of a female victims was unnecessary, but, in the context of the entire trial, cannot be said to be per se improper or to have made any material difference in the jury's consideration of the proofs.
The prosecutor's comments at trial did not abridge the petitioner's rights under the Due Process Clause.
C.
The petitioner next claims that he is entitled to habeas corpus relief because his right to due process and a fair trial were violated by certain jury instructions given by the trial court. First, the petitioner objects to a supplemental jury instruction given by the trial court judge in response to a question from the jury. The jury sent a note to the judge requesting a chart prepared by the prosecution detailing the differences between first- and second-degree murder. The trial court judge declined to give the jury the chart on the ground that it was not evidence, but reread the instructions for first- and second-degree murder.
Generally, a claim that a state trial judge gave erroneous jury instructions is not cognizable in a federal habeas action unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right].'" Donnelly, 416 U.S. at 643. Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (internal quotation omitted).
The last state court to issue a reasoned opinion addressing this claim, the Michigan Court of Appeals stated, in pertinent part:
Defendant also argues that the trial court erred when it gave supplemental instructions to the jury that were not favorable to defendant. Again, we disagree. During their deliberations, the jurors requested a chart created by the prosecution outlining the differences between first- and second-degree murder. The trial judge refused, stating that the chart was not evidence. Instead, the judge proposed that she reread the instructions on first- and second-degree murder. Defense counsel agreed to the court's proposal. Defendant now contends that the supplemental instructions were unbalanced in that they did not present any material favorable to defendant, i.e., a rereading of the alibi instruction. However "[i]t is not an abuse of discretion for a trial court to fail to repeat instructions addressing areas not covered by a jury's specific request." People v. Parker, 230 Mich. App. 677, 681, 584 N.W.2d 753 (1998). The trial court repeated instructions based on a specific request from the jury. The court did not err in failing to read instructions favorable to defendant. People v. Larry, 2000 WL 33529624, at *2 (some citations omitted).People v. Larry, 2000 WL 33529624, at *2 (some citations omitted).
The petitioner has identified no Supreme Court decision suggesting that jury instructions must always be read in their entirety upon a jury's request for further clarification, and this Court knows of no such holding. The finding of the Michigan Court of Appeals in accord with this understanding was not contrary to or an unreasonable application of federal law.
Second, the petitioner claims that the trial court gave an insufficient instruction regarding his alibi defense. Respondent argues that this claim is barred from review in this Court because defense counsel failed to object to the instruction at trial, and that the claim, therefore, is procedurally defaulted.
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). Such a default may occur if the state prisoner files an untimely appeal, ibid, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). 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. . . ." Rust, 17 F.3d at 162; 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 729-32. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. YIst v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether the petitioner's claim is procedurally defaulted by looking to the last reasoned state court judgment denying the petitioner's claim. See Coleman, 501 U.S. at 729-34. The last state court to issue a reasoned opinion addressing this claim, the Michigan Court of Appeals, stated, in pertinent part:
Defendant further argues that the trial court gave an insufficient and confusing instruction on the law of alibi. In order to preserve an issue regarding a jury instruction, a defendant must object on the record before the jury retires to consider the verdict. In the instant case, defendant did not object below. Accordingly, our review is limited to whether relief is necessary to avoid manifest injustice. [I]nasmuch as the issue was not properly preserved for appellate review and defendant concedes on appeal that the instructions given covered the essential points of the law pertaining to alibi, we hold that relief is not necessary to avoid manifest injustice. . . .People v. Larry, 2000 WL 33529624, at *2. This passage plainly invokes the procedural default of the defendant's failure to tender a contemporaneous objection to the challenged jury instruction. The petitioner thus will not be permitted to argue this claim on habeas review unless he can demonstrate cause and prejudice, or that he is actually innocent of the crime.
In this case, the petitioner presents ineffective assistance of counsel as cause for his procedural default. 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 attributed to him." Coleman, 501 U.S. at 753. The 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). As discussed in more detail below, the United States Supreme Court set forth the standard applicable to ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). In order to establish ineffective assistance of counsel, a petitioner must show that his attorney's performance was deficient and that said deficiency prejudiced the petitioner. Id. at 687.
The Michigan Court of Appeals held that the petitioner's attorney was not ineffective in failing to object to the alibi instruction because such instruction was appropriate and counsel is "not require[d] . . . to make fufile objections." People v. Lorry, slip op. at 4. The Michigan Court of Appeals correctly stated the law, see Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999) (holding that "[c]ounsel could not be unconstitutionally ineffective for failing to raise these meritless arguments"), and the petitioner has failed to show that the state court's conclusion in this regard was contrary to or an unreasonable application of Supreme Court precedent. The challenged instruction read as follows:
You have heard evidence that the defendant could not have committed the alleged crime because he was somewhere else when the crimes were committed. The prosecutor must prove beyond a reasonable doubt that the defendant was actually there when the alleged crime was committed. The defendant does not have to prove that he was somewhere else if, after careful [sic] considering all of the evidence you have a reasonable doubt about whether the defendant was actually present when the alleged crime was committed, you must find him not guilty.People v. Larry, 2000 WL 33529624, at *3. Although this instruction could have been more artfully framed, the instruction nevertheless makes clear that the burden of proof is upon the prosecution to show that the defendant was present, not upon the defendant to show that he was absent. The defendant's theory that he was entitled to an extended discussion of the manner in which alibi evidence can be exculpatory has no support in the jurisprudence of the Supreme Court. The petitioner suggests that Michigan law holds otherwise, but an error in the application of Michigan law is not a basis for habeas relief. See Estelle, 502 U.S. at 67-68.
Because the petitioner has failed to establish that his attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. Counsel was not ineffective for failing to assert a meritless objection. Because cause for the petitioner's default has not been demonstrated, and the petitioner presents no credible claim of actual innocence, see Schlup v. Delo, 513 U.S. 298, 327 (1995), this claim is procedurally defaulted, and this Court will not review it further.
D.
Finally, the petitioner claims that he is entitled to habeas corpus relief because his constitutional right to counsel was violated by his attorney's deficient performance because trial counsel failed to object to (1) improper prejudicial comments made by the prosecutor, (2) a supplemental jury instruction, and (3) the alibi instruction.
The Michigan Court of Appeals also rejected the petitioner's claims of ineffective assistance of counsel:
To establish ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. People v. Stanaway, 446 Mich. 643, 687-88; 521 N.W.2d 557 (1994). Moreover, "the defendant must overcome a strong presumption that counsel's assistance constituted sound trial strategy." Id. at 687. Having found that the prosecutor's statements during her summation did not amount to prosecutorial misconduct, and that the trial court did not err in instructing the jury, we conclude that defendant's ineffectiveness claim is without basis. This Court does not require counsel to make fufile objections.People v. Larry, 2000 WL 33529624, at *3.
Although the Michigan Court of Appeals did not cite Strickland v. Washington, it clearly applied the standard governing ineffective assistance of counsel claims articulated therein. The petitioner has failed to show that the state court's application of that standard was unreasonable. This Court has already found that the claims the petitioner sought to have his attorney raise were meritless, and that the failure to raise such claims cannot be ineffective assistance of trial counsel. See Mapes, 171 F.3d at 427.
The petitioner has therefore failed to establish ineffective assistance of counsel as an independent basis for habeas relief.
III.
The decision of the state court of appeals rejecting the petitioner's claims was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #3] is DENIED