Opinion
Case Number: 00-10420-BC
November 12, 2002.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Orlando May, a state inmate currently incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Recorder's Court for the City of Detroit, the petitioner was convicted of second-degree murder, possession of a controlled substance, and possession of a firearm during the commission of a felony (felony firearm). On June 26, 1997, he was sentenced to twenty-five to fifty years imprisonment for the second-degree murder conviction, one and a half to twenty years imprisonment for the controlled substance conviction, and two years imprisonment for the felony-firearm conviction, to be served consecutively. The petitioner alleges that his trial was tainted with constitutional error, and that he is therefore in custody in violation of the Constitution and laws of the United States. The Court disagrees, and will deny the petition.
I.
The petitioner's conviction arises out of the shooting death of Stephen Harden on September 14, 1996.
At trial, Ebony Tiller testified that on the evening of September 13, 1996, he, the petitioner, and Stephen Harden celebrated the petitioner's birthday at a Detroit nightclub. While they were at the nightclub, the petitioner borrowed Tiller's jacket. After they left the nightclub, Tiller asked the petitioner to return his jacket. When the petitioner did so, the petitioner took marijuana out of the jacket pocket. The petitioner and Tiller each claimed ownership of the marijuana. The petitioner and Tiller got into an argument over the marijuana and Tiller initially refused to ride in the petitioner's car. Tiller testified that, after arguing for a while, the petitioner and Harden convinced Tiller to ride in the car. Tiller testified that, as they were driving back to the petitioner's house, Harden and the petitioner began arguing. Tiller, who was seated in the back seat, could not hear what the men were arguing about. As the arguing continued, the petitioner stopped the car and all three men got out of the car. The petitioner and Harden then began hitting one another. Tiller testified that Harden got the better of the petitioner in the fight. The petitioner then ran back to his car and drove away. Harden and Tiller were able to find a cab to drive them to the petitioner's sister's house, where Harden had left his car. Tiller testified that Harden and Tiller were standing by Harden's car when the petitioner drove up. The petitioner got out of his car and he and Harden began arguing again. Tiller testified that Harden shoved the petitioner. The petitioner then reached into his waistband, pulled out a gun and shot Harden once in the chest.
Dr. Laning Davidson, Wayne County Assistant Medical Examiner, testified that Mr. Harden died from a single gunshot wound to the chest.
The petitioner testified in his own defense. He testified that on the evening of September 13, 1996, he, Tiller, and Harden were at the petitioner's house celebrating the petitioner's birthday. The men were drinking and smoking marijuana. At approximately midnight, the three men drove in the petitioner's car to a nightclub in downtown Detroit. The petitioner testified that, while at the nightclub, he borrowed Tiller's jacket. When the time came for the petitioner to return the jacket, he and Tiller argued about whose marijuana was in the jacket pocket. The petitioner then pulled his car over to the side of the road, and Tiller got out to walk. Thereafter, the petitioner and Harden began arguing. The petitioner testified that the argument became physical, with Harden striking the petitioner in the head several times. The petitioner testified that he then got back into his car by himself and drove home.
The petitioner further testified that, moments after the petitioner arrived home, Tiller and Harden drove up in Harden's car. The petitioner testified that both men jumped out of Harden's car and approached the petitioner. The petitioner testified that Harden resumed hitting the petitioner. The petitioner then pulled out a gun, and fired it one time. He testified that he fired the gun in the air, with the intention of scaring off Harden and Tiller. He testified that Tiller and Harden then began running away. The petitioner grabbed the keys out of Harden's car, then got into his own car and left the area.
After his conviction and sentence, the petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court committed reversible error in failing to give the requested instructions on the cognate lesser included offense of careless, reckless or negligent use of a firearm, with death resulting, thereby denying defendant the right to due process pursuant to U.S. Const. Ams. V, XIV; and Mich. Const. 1963 Art. 1, Sec. 17.
II. The trial court committed reversible error by admitting irrelevant bad act evidence contrary to M.R.E. 404(b) where the prosecutor failed to show that its probative value to a material issue outweighed its inherently prejudicial character, thereby denying the defendant due process under the V and XIV Amendments to the United States Constitution and Const. 1963, Art. 1, Sec. 17.
III. Ineffective assistance of counsel.
The petitioner also filed a motion to remand to the trial court for an evidentiary hearing on his ineffective assistance of counsel claim pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). The Michigan Court of Appeals denied the petitioner's motion to remand, People v. May, No. 206340 (Mich.Ct.App. July 20, 1998), and subsequently affirmed the petitioner's conviction. People v. May, No. 206340, 1998 WL 1986990 (Mich.Ct.App. Dec. 29, 1998) (unpublished opinion). The petitioner's motion for rehearing was denied. People v. May, No. 206340 (Mich.Ct.App. March 29, 1999).
The petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals, and the following additional claim:
The appellate court abused its discretion in failing to remand defendant's case back to the trial court for a Ginther hearing which violated defendant's right under the Michigan Const. 1963, Art. 1 §§ 17, 20 and U.S. Const., Ams. VI, XIV.
The Michigan Supreme Court denied leave to appeal. People v. May, No. 114752 (Mich. Nov. 29, 1999).
The petitioner filed his petition for a writ of habeas corpus on November 14, 2000, presenting the following claims:
I. The appellate court abused its discretion in failing to remand defendant's case back to the trial court for a Ginther hearing, which violated defendant's rights under the U.S. Const., Ams. VI, XIV.
II. Petitioner was denied the effective assistance of trial counsel as is guaranteed him by the VI, and XIV Amendments to the United States Constitution because of trial counsel's:
1) Lack of diligence in the representation of the interests of the defendant,
2) Lack of contact with the defendant which negatively affected defendant's knowledge of the proceedings, as well as his relationship with counsel,
3) Failure to have certain ballistic evidence suppressed,
4) Guarantee of a lighter sentence than that imposed, and
5) Dissemination of misinformation to defendant.
III. Petitioner was denied due process as is guaranteed him by the V and XIV amendments to the United States Constitution where:
A) The trial court committed reversible error in failing to give the requested instructions on the cognate lesser included offense of careless, reckless or negligent use of a firearm with death resulting, thereby denying Petitioner the right to due process pursuant to U.S. Const. Ams V, XIV.
B) The trial court committed reversible error by admitting irrelevant bad act evidence contrary to M.R.E. 404(b) where the prosecutor failed to show that its probative value to a material issue outweighed its inherently prejudicial character, thereby denying Petitioner due process under the V and XIV amendments to the United States Constitution.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
In T. Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 411. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
A federal habeas court must presume that state court factual determinations are correct. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
A.
The petitioner first claims that his constitutional rights were violated because the state appellate court denied his motion to remand his case to the trial court so that he could make a record on his ineffective assistance of counsel claim.
Michigan has a unified appeal system for criminal cases in which all claims must be raised in the first appeal of right, including claims of ineffective assistance of counsel which might not at first be apparent from the trial record. To address this circumstance, the Michigan Supreme Court in People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), outlined the procedure for developing a record when a defendant desires to assert claims that are outside the record. The court stated:
A defendant who wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claims with evidence as a precondition to invoking the processes of the appellate courts except in the rare case where the record manifestly shows that the judge would refuse a hearing; in such a case the defendant should seek on appeal, not a reversal of his conviction, but an order directing the trial court to conduct the needed hearing.Id. at 443-44; 212 N.W.2d at 925. When no such motion was made in the trial court, the supreme court stated that a criminal appellant should seek a remand:
Ginther's appellate counsel moved in the Court of Appeals on August 3, 1971 for an order remanding the case to the trial court so that Ginther could file "a motion for a new trial." The motion showed the need for remand and should have been granted.
The motion alleged that the grounds on which a "new trial" was sought were such that they "should be presented to the trial court prior to determination by this court"; the motion enumerated the grounds: denial of effective assistance of counsel, refusal to substitute another lawyer after Ginther had asserted that the appointed lawyer "was not pursuing his case with the vigor demanded by the law," his plea of guilty was coerced, the judge's failure to disqualify himself, failure to read the Miranda warning.Id. at 444-45; 212 N.W.2d at 926.
The procedure has since been codified in the Michigan Court Rules as follows:
Within the time provided for filing the appellant's brief, the appellant may move to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal and show:
(i) that the issue should be initially decided by the trial court; or
(ii) that development of a factual record is required for appellate consideration of the issue. A motion under this subrule must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.
The petitioner complains here that the Michigan Court of Appeals improperly denied his motion to remand so he could develop a record on his ineffective assistance of counsel claim. To the extent that this complaint focuses on the state court's application of its own procedural rule, it will not form the basis of habeas relief because it encompasses only matters of state law. "In a 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, 22-23 (6th Cir. 1981).
There also may be a due process component to the petitioner's claim, however, in that he states that he was denied the right to be heard on a non-record issue in his state appeal. This deprivation must be particularly nettlesome to the petitioner in light of the Michigan Court of Appeals merits panel's inaccurate pronouncement that the petitioner had failed to seek a remand. Although a deprivation of this sort may not form the basis for issuing the writ, it would support a request for an evidentiary hearing in this Court for the purpose of developing a record on the petitioner's constitutional claims under some circumstances, which will be addressed below. See 28 U.S.C. § 2254(e)(2); M. Williams v. Taylor, 529 U.S. 420, 430, 437 (2000) ("Yet comity is not served by saying a prisoner `has failed to develop the factual basis of a claim' where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2)").
B.
The petitioner next claims that he is entitled to habeas corpus relief because his trial counsel rendered ineffective assistance. Specifically, the petitioner claims that his trial attorney: (1) did not exercise diligence in his representation of the petitioner; (2) did not have sufficient contact with the petitioner; (3) failed to have ballistic evidence suppressed; (4) guaranteed the petitioner a lighter sentence than that imposed; (5) disseminated incorrect information to the petitioner and (6) advised the petitioner to give perjured testimony.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when assessing counsel's performance, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal quotes and citations omitted). The Court explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id.
To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996).
The last state court to issue a reasoned opinion regarding the petitioner's ineffective assistance of counsel claim, the Michigan Court of Appeals, stated, in pertinent part:
Defendant's final argument on appeal is that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, defendant "must show that counsel's performance was below an objective standard of reasonableness under prevailing norms . . . [and] that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." People v. Stanaway, 446 Mich. 643, 687-88; 521 N.W.2d 557 (1994). Because defendant failed to move for either a new trial or a Ginther [ People v. Ginther, 390 Mich. 436 (1973)] hearing, review is limited to the existing record. People v. Barclay, 208 Mich. App. 670, 672 (1995).
. . . Initially, we note that defendant has failed to support these allegations [of ineffective assistance of counsel] with any reference to the existing record. M.C.R. 7.212(C)(7). Further, in none of the five [allegations] has defendant established either that counsel's performance was objectively unreasonable, or that he was prejudiced by the alleged errors of his counsel. Accordingly, because defendant has failed to establish that the outcome of the trial would have somehow been different if not for counsel's alleged poor performance, reversal is unwarranted. . . .People v. May, 1998 WL 1986990, at *2.
First, the petitioner asserts a conclusory allegation that his attorney did not exercise diligence in representing the petitioner. The petitioner fails to allege with any specificity in what areas his attorney failed to exercise diligence or what his attorney could have done differently that would have somehow impacted the outcome of the trial. In order to establish ineffective assistance of counsel, a petitioner must make more than merely speculative, vague assertions. Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir. 1985). See also United States v. Allison, 59 F.3d 43, 47 (6th Cir. 1995); United States v. Snow, 48 F.3d 198, 199 (6th Cir. 1995). The petitioner's claims regarding his attorney's alleged lack of diligence are vague and speculative assertions that do not entitled him to habeas corpus relief.
Second, the petitioner claims that his lack of contact with his trial counsel impacted the petitioner's knowledge of the proceedings and his relationship with counsel. The petitioner fails to allege in what way this lack of contact impacted his understanding of the proceedings. The petitioner does not allege that his trial would have proceeded any differently or in what way his defense suffered as a result of the petitioner's contact, or lack thereof, with his attorney. Therefore, because the petitioner does not establish how the outcome of the trial may have been different had his attorney communicated with him more frequently or effectively, the petitioner fails to show that the state court's decision regarding this claim was contrary to or an unreasonable application of Supreme Court prejudice.
Third, the petitioner claims that his attorney was ineffective in failing to move to suppress the ballistics evidence. The petitioner claims that this evidence was irrelevant. A review of the trial transcript reveals that the ballistics evidence was relevant to establishing the type of weapon used, the number of shots fired, from where such shots were fired, and the victim's injuries. The petitioner has failed to establish that a motion to suppress the ballistics evidence on the ground that it was irrelevant had any merit. Therefore, his attorney was not ineffective in failing to present this claim.
Fourth, the petitioner claims that his attorney promised him a lighter sentence than that imposed. Even if the petitioner's attorney had promised him a lighter sentence, the petitioner has failed to show how such a promise prejudiced him. The petitioner does not allege that the trial would have proceeded any differently or that he rejected a plea agreement on the basis of his attorney's representation.
Fifth, the petitioner makes a vague allegation that his attorney communicated misinformation to him. The petitioner fails to identify the substance of this alleged misinformation. To the extent that the misinformation to which the petitioner refers is the alleged promise by his attorney of a lighter sentence, the petitioner has failed to establish that the outcome of the proceeding was in any way impacted by this alleged promise.
Finally, the petitioner contends that his attorney was ineffective in that he induced the petitioner to perjure himself at trial. The petitioner fails to state specifically what part of his trial testimony was perjured. Nor does he allege in what way this allegedly perjured testimony impacted the outcome of the trial. Thus, the petitioner's vague assertion regarding perjury is insufficient to establish prejudice. Accordingly, the Court holds that the Michigan Court of Appeals holding was not contrary to or an unreasonable application of Supreme Court precedent.
The Court is troubled by the assertion of the Michigan Court of Appeals in its opinion affirming the petitioner's convictions that the petitioner never moved for a Ginther hearing. This statement is obviously inaccurate, as the Michigan Court of Appeals itself denied the petitioner's motion to remand for a Ginther hearing five months earlier. Because the petitioner sought additional factfinding at the state court level, he would be entitled to make a record as to the effectiveness of his counsel's assistance if his petition stated claims upon which habeas relief can be granted. However, as noted above, the petitioner has failed to meet even this low threshold. When the merit of a petitioner's claims is properly resolved in purely legal terms, an evidentiary hearing is not appropriate. Fields v. Marshall, 621 F. Supp. 77, 79 (N.D.Ohio. 1985); see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (citing case law indicating that "bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing").
Accordingly, the petitioner is not entitled to habeas corpus relief with respect to his ineffective assistance of counsel claims.
C.
The petitioner claims that he is entitled to a writ of habeas corpus because the trial court erred in failing to give the requested instructions on the lesser included offense of careless, reckless, or negligent use of a firearm with death resulting.
The last court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, stated, in pertinent part:
Defendant first argues that the trial court erred in refusing his request to instruct the jury regarding careless, reckless, or negligent use of a firearm causing death. . . . "This Court reviews jury instructions in their entirety to determine if there is error requiring reversal. The instructions must include all elements of the charged offense and must not exclude material issues, defense, and theories, if there is evidence to support them." People v. Daniel, 207 Mich. App. 47, 53; 523 N.W.2d 830 (1994).
After reviewing the instructions and the evidence introduced at trial, we conclude that the trial court did not err. There was no evidence to support the giving of an instruction on careless, reckless, or negligent use of a firearm causing death. Defendant testified that although he did not intend to kill anyone, he nonetheless intentionally fired the gun. Just recently, the Michigan Supreme Court noted that when the firing of a gun is intentional, an instruction on careless, reckless, or negligent use of a firearm causing death is inappropriate. People v. Cummings, 458 Mich. 876 [sic] (1998).People v. May, 1998 WL 1986990, at *1.
The Sixth Circuit has held that where the state court has "reviewed a defendant's request for a lesser included offense instruction and concluded that it is not warranted by the evidence elicited at trial, that conclusion is axiomatically correct, as a matter of state law." Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990) (en banc). The petitioner has not presented any evidence which would suggest that the Michigan Court of Appeals erred. Therefore, according the state court's finding that the petitioner intentionally discharged the weapon the required presumption of correctness, the petitioner has failed to establish that the holding of the Michigan Court of Appeals on this issue was contrary to or an unreasonable application of Supreme Court precedent.
D.
Finally, the petitioner claims that the trial court erred in admitting evidence that the petitioner was known to carry a gun. The petitioner further claims that he was not provided with sufficient notice that the prosecutor intended to offer this evidence.
However, as previously stated, "`federal habeas corpus relief 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)). "Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). See also Estelle, 502 U.S. at 72 (holding that a federal court may not grant habeas corpus relief simply on the basis that a trial court incorrectly interpreted state evidence rules to allow admission of prior bad acts evidence).
The last state court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, held, in pertinent part:
Defendant has offered no reason to believe that he was prejudiced by the lack of notice or by the admission of the evidence. Because defendant admitted that he possessed on the night in question the gun that fired the fatal shot, we find no basis for believing that defendant was prejudiced by testimony that defendant had a gun on a prior occasion.People v. May, 1998 WL 1986990, at *2.
The 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 admission of this evidence and the lack of timely notice of the prosecutor's intent to admit the evidence deprived him of his right to a fair trial. Accordingly, the petitioner is not entitled to habeas corpus relief with respect to this claim.
III.
The petition fails to establish that the petitioner is in custody in violation of the laws of the United States.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.
It is further ORDERED that the remaining motions in this case, including, but not limited to, the petitioner's Motion for Evidentiary Hearing [dkt #18] are DENIED AS MOOT.