Malone v. Curtis

Full title: CURTIS MALONE, PETITIONER, v. BRUCE CURTIS, RESPONDENT

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jul 18, 2000

CASE NO. 99-72920 (E.D. Mich. Jul. 18, 2000)

Opinion

CASE NO. 99-72920

July 18, 2000

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GERALD E. ROSEN, District Judge

I. Introduction

Petitioner Curtis Malone, a state inmate currently incarcerated at the Southern Michigan Correctional Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

II. Facts

Petitioner's conviction arises out of his involvement with a drug distribution ring in the Detroit metropolitan area. In 1990, state, federal, and local authorities formed a multijurisdictional task force in the Detroit area to investigate drug trafficking. During the course of this investigation, surveillance officers observed brothers Caesar, Hugo and Jorge Vallejo engaged in suspicious activities consistent with drug trafficking. The Vallejo brothers leased six apartments in the Detroit area, only one of which appeared to be occupied. Petitioner was observed at one of these apartments on two occasions.

On September 7, 1990, federal agent Cathy Schroeder saw Jorge and Hugo Vallejo leave one of the Vallejo apartments and stop at a pay phone. Hugo and Jorge then went to a Denny's Restaurant parking lot where they met Petitioner. Petitioner took a large bag from the trunk of his car and handed it to Jorge, who put the bag in the trunk of his car. Jorge then put a small package into the trunk of Petitioner's car.

On September 25, 1990 federal agent Schroeder followed Jorge Vallejo to the same Denny's Restaurant parking lot. Petitioner was sitting in a parked car. When Jorge arrived, Petitioner retrieved a bag from his trunk and gave it to Jorge who, once again, put it in the trunk of his car.

Shortly thereafter, Jorge and Hugo Vallejo were arrested following a drug exchange in a local hotel. Police then executed search warrants on the six Vallejo apartments. Police found twenty-two kilograms of cocaine in one apartment and $830,000 cash in another. Thereafter, Jorge and Hugo each pleaded guilty in federal court to conspiracy to distribute more than five kilograms of cocaine and distribution of cocaine. Hugo also pleaded guilty to money laundering. In 1992, the federal government filed a motion pursuant to Fed.R.Civ.P. 35 on behalf of Hugo and Jorge Vallejo, in which the government requested that the court reduce their sentences based upon the substantial assistance Jorge and Hugo provided in the investigation and prosecution of other persons who committed criminal offenses. Since the nature of the assistance to be provided by Hugo and Jorge was, at that time the Rule 35 motion was filed, in the form of future testimony, the government asked the court to defer consideration of the motion until the cooperation could be completed.

Jorge and Hugo testified at Petitioner's trial in state court. Jorge testified that he delivered cocaine to Petitioner approximately five or six times in amounts ranging from five kilograms to fifty kilograms. Jorge also received payment from Petitioner for cocaine that already had been delivered on five or six occasions. On one of those occasions, Jorge collected $140,000 from Petitioner. Jorge stated that he was testifying because he hoped to receive a reduction in his federal sentence for cooperating with Petitioner's prosecution.

Hugo testified that he delivered cocaine to Petitioner approximately six times. He specifically recalled delivering ten kilograms to Petitioner in Troy, Michigan. Hugo also testified that he was hoping for a reduction in his sentence in exchange for his testimony.

Petitioner was convicted of possession with intent to deliver more than 650 grams of cocaine and conspiracy to possess with intent to deliver more than 650 grams of cocaine.

III. Procedural History

Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of possession with intent to deliver more than 650 grams of cocaine and conspiracy to possess with intent to deliver more than 650 grams of cocaine. He was sentenced to two terms of life imprisonment without possibility of parole.

Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:

I. As applied to Curtis Malone, who received life imprisonment without parole while the drug organization's leaders faced far less severe penalties in federal court for more serious conduct, Michigan's over-650 law is unconstitutional under the state and federal equal protection clauses.

II. The trial court committed reversible error in rejecting defense counsel's request that the court instruct the jury about how to consider testimony regarding an agreement that witnesses would receive a reduced sentence for cooperating in the prosecution of the defendant.

III. There was insufficient evidence to convict the defendant of conspiracy to possess with intent to deliver a controlled substance, and the trial court's instructions lacked an essential element of the conspiracy offense charged.

A. Assisted by the jury instructions' omission of an essential element of the conspiracy offense, the jury's conviction on the conspiracy count violated Wharton's Rule.

B. The prosecutor's evidence of conspiracy showed nothing more than a buyer-seller relationship.

IV. The cumulative effect of erroneous evidentiary rulings deprived the defendant of a fair trial.

V. To impose life imprisonment without the possibility of parole upon a 50-year-old first-time offender is cruel and unusual and disproportionate to the offenses.

The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Malone, No. 176472 (Mich.Ct.App. April 7, 1997).

Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Malone, No. 109563 (Mich. May 28, 1998).

On June 1, 1999, Petitioner filed the pending habeas corpus petition presenting the following claims:

I. The Michigan Court of Appeals decision that the prosecution of Mr. Malone in state court, where he faced a mandatory life imprisonment without the possibility of parole, as opposed to federal court, where the drug organizations leaders were prosecuted and faced far less severe penalties for more serious conduct, did not violate Petitioner's rights under the state and federal equal protection was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

II. The Michigan Court of Appeals decision that the trial court's refusal to instruct the jury about considering testimony regarding an agreement that witnesses would receive a reduced sentence for cooperating in the prosecution of Mr. Malone was harmless was based upon an unreasonable determination of facts in light of the evidence presented in the state court proceedings.

III. The Michigan Court of Appeals decision that there was sufficient evidence to convict Mr. Malone of conspiracy to possess with intent to deliver cocaine and that the trial court's instructions did not lack an essential element of the conspiracy offense charge was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

A. The Michigan Court of Appeals decision that the evidence showed Mr. Malone interacting with two other members of the Vallejo organization and that there was sufficient evidence to overcome Wharton's Rule was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

B. The Michigan Court of Appeals decision that the evidence established there being more than a buyer-seller relationship and that such evidence was sufficient to support the conspiracy conviction was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

IV. The Michigan Court of Appeals decision that the cumulative effect of erroneous evidentiary rulings by the trial court had not deprived Mr. Malone of a fair trial was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

A. The Michigan Court of Appeals decision that the probative value of the admission and display of 22 pounds of cocaine was not substantially outweighed by its prejudicial effect, was not unnecessar[il]y inflammatory, and did not lack a proper foundation was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

B. The Michigan Court of Appeals decision that the trial court's restriction of defense counsel's cross-examination of Agent Hayes concerning the granting of Rule 35 motions of co-conspirators was harmless error, was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

C. The Michigan Court of Appeals decision that the trial court did not abuse its discretion in allowing over defense objection hearsay evidence that Mr. Malone was making crack cocaine was based upon an unreasonable determination of facts in light of the evidence presented in the state court proceeding.

D. The Michigan Court of Appeals decision that testimony concerning the significance of evidence seized from several apartments operated by the Vallejos was proper on grounds that Mr. Malone is criminally reasonable for the acts of co-conspirators made in furtherance of the conspiracy was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

V. To impose life imprisonment without the possibility of parole upon a fifty-year old first-time offender is cruel and unusual punishment and disproportionate to the offenses.

IV. Analysis A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, 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 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). 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 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ¹; 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").

1 28 U.S.C. § 2254(e)(1) provides, in pertinent part: 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.

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, 120 S.Ct. 1495, 1519-20 (2000).

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. 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 1521-22.

With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.

B. Equal Protection Claim

Petitioner claims that he is entitled to habeas corpus relief because he was prosecuted in state court while other, allegedly more culpable, members of the same narcotics ring were prosecuted in federal court where the sentencing structure is more lenient.

The Michigan Court of Appeals rejected Petitioner's claim of an equal protection violation, holding as follows:

[Defendant] argues that the decision to prosecute him in state courts, were he faced mandatory life imprisonment without the possibility of parole, as opposed to federal courts, where his more culpable coconspirators were subject to much less harsh penalties, was a denial of his right to equal protection under the law guaranteed in both the federal and state constitutions. When an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants. United States v. Batchelder, 442 U.S. 114, 124 (1979). "Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced." Id. at 125. We conclude that the multijurisdictional investigatory task force's referral of defendant and other members of the Vallejo conspiracy to state authorities for prosecution did not violated defendant's constitutional guarantee of equal protection under the law. See United States v. McCoy, 802 F. Supp. 128 (W.D. Mich. 1992); United States v. Allen, 954 F.2d 1160 (6th Cir. 1992); United States v. Smith, 966 F.2d 1045 (6th Cir. 1992).

People v. Malone, No. 176472 (Mich.Ct.App. 1997).

It is well-established that "[p]rosecutors are given great discretion in determining which cases will be prosecuted." U.S.v. Allen, 954 F.2d 1160 (6th Cir. 1992)."`[So] long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute and what charge to file. . . generally rests entirely in his discretion.`" Id.( quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). However, the decision whether to and under what statute to prosecute "cannot be based on a defendant's race, sex, religion, or exercise of a statutory or constitutional right." Id. A prosecutor "may properly base his decision on the penalties available upon conviction when determining what offense will be charged against a defendant." Id.

Petitioner fails to present any evidence to support his claim of an equal protection violation. He fails to demonstrate that the decision to prosecute him in state court rested on any impermissible basis. Therefore, Petitioner has not established that the state court's holding that his right to equal protection was not violated is contrary to or an unreasonable application of Supreme Court precedent.

C. Jury Instructions

Petitioner claims that the trial court erred in refusing to instruct the jury regarding an agreement that prosecution witnesses would receive shorter sentences in exchange for their testimony against Petitioner,

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 v.DeChristoforo, 416 U.S. 637, 643 (1974). 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 v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973).

The Michigan Court of Appeals found that the trial court erred in refusing to give the requested instruction, but that such error was harmless:

In his second issue, defendant argues that the trial court committed error requiring reversal in rejecting his request for the standard jury instruction on a witness's agreement for testimony. CJI 2d 5.13. A trial judge must instruct the jury on the applicable law, and fully and fairly present the case to the jury in an understandable manner. People v. Moore, 189 Mich. App. 315, 319 (1991). However, failure to give a requested instruction is error requiring reversal only if the requested instruction is substantially correct, was not substantially covered in the charge given to the jury, and concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense. People v. Moldenhauer, 210 Mich. App. 158, 160 (1995).

Although we believe that the trial court abused its discretion in not giving the requested instruction, the court did provide the jury with a cautionary instruction on considering the testimony of accomplices, CJI 2d 5.6, and did instruct the jury that they should consider the fact that the witnesses hoped for sentence reductions in exchange for their testimony in assessing the credibility of that testimony. Thus, the jury was instructed on defendant's view that the testimony of these witnesses was tainted by their agreements with the federal government, and the witnesses were therefore simply not credible. No miscarriage of justice occurred because of the trial court's failure to give the requested instruction.

People v. Malone, slip op. at 2.

Petitioner has failed to establish that the state court's determination that the error was harmless was an unreasonable application of clearly established Federal law or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence. Nor has Petitioner shown that the trial court's refusal to give the requested jury instruction infected his entire trial to the extent that he was denied his constitutional right to due process.

Accordingly, Petitioner is not entitled to habeas corpus relief with respect to this claim.

D. Sufficiency of the Evidence Claim

In his third claim for habeas corpus relief, Petitioner claims that the state presented insufficient evidence to convict him of conspiracy. Specifically, Petitioner asserts that there was insufficient evidence to establish that Petitioner interacted with two other members of the Vallejo organization and that the evidence presented, therefore, was insufficient to overcome Wharton's Rule. In addition, Petitioner claims that the prosecutor failed to establish anything beyond a buyer-seller relationship between Petitioner and the Vallejos and that insufficient evidence therefore was presented to establish conspiracy.

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established that the standard of review for a sufficiency of the evidence challenge 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 (emphasis in original). 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. In making this determination, this Court must afford the state court's findings of fact a presumption of correctness unless it is established by clear and convincing evidence that the factual determination in the state court was erroneous. 28 U.S.C. § 2254(e)(1); West v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996), cert. denied, 116 S.Ct. 2569 (1996).

In its opinion, the Michigan Court of Appeals did not identify the standard by which it determined that there was sufficient evidence to support the trial court's verdict of first degree murder. However, based upon the language of the opinion, it is clear that the court applied the Jackson standard:

Defendant next argues that there was insufficient evidence to convict him of conspiracy. In reviewing the sufficiency of the evidence, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. . . . In order to establish a conspiracy, the prosecution must show a combination or agreement, express or implied, between two or more people, to commit an illegal act or to commit a legal act in an unlawful manner. M.C.L. 750.157a; M.S.A. 28.354(1); People v. Meredith ( on remand), 209 Mich. App. 403, 407-08 (1995).

Defendant argues as an initial matter that there was insufficient evidence to convict him of conspiracy on the basis of Wharton's Rule. That rule provides that "when two people are necessary to perform a proscribed act, they may not be prosecuted for conspiracy to perform it, for their combination adds nothing to their intent to commit the crime." People v. Davis, 408 Mich. 255, 278 (1980). However, the evidence showed defendant interacting with two other members of the Vallejo drug organization and therefore established at a minimum a conspiracy of three individuals.

Defendant further contends that the evidence at best supports a buyer-seller relationship between himself and his coconspirators and was therefore insufficient to establish conspiracy. However, we rejected a similar argument in Meredith, supra, at 412, noting that "a conspiracy could still exist where all the individuals shared the knowledge that the drugs involved were ultimately to be delivered for consumption by street users." In this case, the prosecution established that defendant shared with his coconspirators the objective of distributing over 650 grams of cocaine. Viewed in a light most favorable to the prosecution, this evidence was sufficient from which a rational trier of fact could have concluded defendant participated in a conspiracy to possess with intent to deliver more than 650 grams of cocaine.

People v. Malone, slip op. at 2-3.

Petitioner has not presented any evidence that the state court's findings of fact were erroneous. Therefore, according the state court's findings of fact a presumption of correctness, this Court concludes that the Michigan Court of Appeals' decision did not "result 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." 28 U.S.C. § 2254(d)(1). Thus, Petitioner is not entitled to federal habeas corpus relief with respect to this claim.

E. Trial Court's Evidentiary Rulings

Petitioner alleges that he is entitled to habeas corpus relief because he was deprived of his right to a fair trial by the trial court's erroneous evidentiary rulings. Petitioner claims the trial court erred in (1) admitting into evidence the cocaine and photographs of the money seized from the apartments controlled by the Vallejos family; (2) excluding testimony regarding the fact that Rule 35 motions filed on behalf of individuals in the Vallejo organization other than the testifying coconspirators had been granted; (3) improperly admitting hearsay evidence; and (4) permitting a federal agent to testify regarding the "significance" of evidence seized.

The Michigan Court of Appeals held that Petitioner was not denied a fair trial on the basis of the cumulative effect of these alleged erroneous evidentiary rulings:

[D]efendant argues that the cumulative effect of erroneous evidentiary rulings deprived him of a fair trial. Defendant first contends that the trial court abused its discretion in allowing the prosecution to introduce into evidence the cocaine and photographs of the money seized from apartments controlled by the Vallejos. Defendant asserts that these items should not have been admitted because there was no evidence linking him to either the cocaine or the cash, and the display of twenty-two kilograms of cocaine was more prejudicial than probative and unnecessarily inflammatory. We disagree. The cocaine and the photographs were admissible against defendant as relevant evidence of the purpose or common goal of the conspiracy. See United States v. Peyro, 786 F.2d 826 (8th Cir. 1986). "It is a general rule that each conspirator is criminally responsible for the acts of his associate committed in furtherance of the common design and before the accomplishment therefore, the act of one or more being in contemplation of law the act of all." People v. Houseman, 128 Mich. App. 17, 26 (1983). Moreover, "[t]here is no rule requiring the prosecution to use only the least prejudicial evidence per se to establish facts at issue." People v. Fisher, 449 Mich . 441, 452 (1995).

Defendant also contends that the trial court abused its discretion in not allowing testimony that Rule 35 motions filed on behalf of individuals in the Vallejo organization other than the testifying coconspirators had been granted, and their sentences had been reduced. Although "a limitation on cross-examination which prevents a defendant from placing before the jury facts upon which an inference of bias, prejudice, or lack of credibility of a witness may be drawn amounts to an abuse of discretion and can constitute a denial of the right to confrontation," the permissible scope of cross-examination is a matter best left to the discretion of the trial court. People v. Mechigian, 168 Mich. App. 609, 614 (1988). Defendant was allowed to vigorously cross-examine the testifying coconspirators on the circumstances and terms of their agreements with the federal prosecutors, and the trial court allowed him to present the jury with facts upon which an inference of bias or lack of credibility could be drawn. Although the trial court abused its discretion in not allowing further testimony, no miscarriage of justice will occur by this Court's refusal to overturn defendant's convictions on that ground.

Defendant argues that improper hearsay was admitted into evidence. First, he argues that one of his coconspirators was allowed to testify that he had heard from his brother and fellow conspirator that defendant was making crack cocaine. The trial court allowed this testimony to be admitted under M.R.E. 801(d)(2)(E) as the statement of a coconspirator made during the course of and in furtherance of the conspiracy. An inference can be drawn from the testimony that the statement was made during the course of the conspiracy and, because it concerned the sales activities of defendant, was made in furtherance of the conspiracy. Moreover, the error, if any was harmless beyond a reasonable doubt because it is not reasonably possible that a juror would have voted to acquit without this testimony. People v. Malone, 193 Mich . App. 366, 371 (1992).

Next, defendant argues that a federal agent was allowed to give impermissible testimony over defense objection about the "significance" of the evidence seized and the conspirators' use of several apartments. We have previously held such testimony by a law enforcement officer to be admissible to aid the jury in determining the defendant's intent and his guilt of the charged offense. People v. Stimage, 202 Mich. App. 28, 30 (1993). Defendant's conspirators are criminally responsible for the acts of their coconspirators made in furtherance of the conspiracy. Houseman, supra at 24. Defendant's argument that the cumulative effect of evidentiary errors violated his right to due process and deprived him of a fair trial is without merit, as there were no evidentiary errors that were not harmless beyond a reasonable doubt.

People v. Malone, slip op. at p. 3-4.

It is well-established that "`federal habeas corpus review does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991), quoting Louis v. Jeffers, 497 U.S. 764, 780 (1990). The Sixth Circuit has held that "[i]n a federal habeas corpus proceeding, it is not the province of a federal appellate court to review the decision of the state's highest court on purely state law." Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981). "Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v.Withrow, 25 F.3d 363, 370 (6th Cir. 1994). In the pending case, Petitioner has not shown that any of the alleged errors denied him the right to a fair trial. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.

F. Sentencing Claim

Finally, Petitioner claims that his mandatory life sentence without possibility of parole, pursuant to M.C.L. § 333.7403(2)(a)(i), is unconstitutional because it constitutes cruel and unusual punishment. In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme Court considered the constitutionality of this Michigan statute and held that it did not violate the Eighth Amendment. The Supreme Court held that severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense. Id. at 994-995. Accordingly, Petitioner's sixth claim, that the mandatory sentence of life without parole violates the Eighth Amendment ban on cruel and unusual punishment, does not warrant habeas relief.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.