Opinion
00-74679
February 5, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Newell E. McGath, 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. For the reasons set forth below, the Court denies the petition.
II. Facts
Petitioner's conviction arises out of events that occurred on February 3, 1996, in Flint, Michigan. Stacy Beard testified that, on February 2, 1996, she needed a place to live, so her friend Tina Goodwin arranged for her to live with Phil Ignash and Petitioner in their trailer home. Ms. Goodwin brought Ms. Beard to the trailer home on a Friday evening. Ms. Beard slept at the trailer home that evening, as did Ms. Goodwin. The next evening, February 3, 1996, Ms. Beard was alone in the home when Petitioner arrived. Ms. Beard testified that she and Petitioner talked for a while. She further testified that Petitioner then began to caress her on top of her clothing. She told him to stop, but he continued. Ms. Beard testified that, after she repeatedly told him to stop touching her, Petitioner raped her orally, vaginally, and anally.
Petitioner testified in his own defense. He admitted that he engaged in sexual activity with Ms. Beard, but claimed that it was consensual.
III. Procedural History
Following a jury trial in Genesee County Circuit Court, Petitioner was convicted of three counts of third —degree criminal sexual conduct. On August 7, 1997, Petitioner was sentenced as a habitual offender, fourth, to concurrent terms of twenty to forty years imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Defendant was deprived of due process, the right to confront witnesses and the right to present a defense, when the trial court excluded evidence which may have exculpated him by demonstrating another possible source of the complainant's injuries.
II. Defendant was convicted on the basis of improperly admitted and unduly prejudicial evidence and argument regarding other bad acts.
III. Defendant was denied a fair trial when the prosecutor introduced improper rebuttal testimony pertaining to collateral matters, and impermissibly used that testimony as substantive proof of guilt.
A. The prosecutor called Sheila Baker solely for the purpose of introducing her prior statements to police, thus insinuating this prior statement was substantive evidence of guilt.
B. The prosecutor improperly offered rebuttal testimony on matters which were completely irrelevant to whether the defendant raped the complainant.
IV. The trial court sentenced the defendant based on belief that he was guilty of a higher offense than that for which he was charged and convicted.
Petitioner filed a pro per supplemental brief, presenting the following additional claims:
V. Did the trial court commit reversible error by not allowing the defendant the right to admit evidence on behalf of the defense, evidence which was relevant, essential and admissible?
VI. Was defendant's court appointed attorney ineffective, neglectful and display conflicting interests to the point of adversely effecting the defendant's trial, by not fulfilling his duties, denying the defendant his right to effective assistance of counsel, prejudicing the defense and denying the defendant his right to due process of the law?
VII. Did the prosecutor display prosecutorial misconduct which denied this defendant his due process rights by allowing — thereby using — perjured testimony and suppressing evidence favorable to the defense?
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. McGath, No. 205735 (Mich.Ct.App. March 30, 1999).
Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the same claims presented on direct review. The Michigan Supreme Court denied leave to appeal. People v. McGath, No. 114635 (Mich. Nov. 29, 1999).
On October 20, 1999, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. This Petitioner was deprived of his constitutional due process right to present a defense when the trial court excluded evidence which may have exculpated him by demonstrating other possible sources for the complainant's injuries.
II. This Petitioner was unconstitutionally convicted on the basis of improperly admitted, prejudicial evidence and argument regarding other "bad acts" and trial counsel was ineffective for failing to object to this obviously improperly admitted, prejudicial evidence/argument.
III. This Petitioner was deprived of his constitutional due process right to a fair trial when, the prosecution introduced prejudicial, improper rebuttal testimony pertaining to unrelated collateral matters, then blatantly and impermissibly used that testimony as substantive proof of guilt and, trial counsel was ineffective for failing to object to this unfair, prejudicial, impermissible conduct.
IV. The trial court denied this Petitioner his constitutional due process right to admit evidence which was/is relevant, admissible and essentially favorable to his defense.
V. Trial prosecutor displayed further prosecutorial misconduct which denied this Petitioner his constitutional due process right to a fair trial when prosecutor knowingly allowed — thereby used — perjured testimony and undermined the fairness of this trial by: sneakily suppressing this evidence which was exculpatorily significant to his defense.
VI. This Petitioner's court appointed defense counsel — Francis A. Kremarik — proves to be ineffective, neglectful and displayed conflicting interests which adversely affected this Petitioner's trial and defense by: denying the Petitioner his constitutional due process right to an effective assistance of counsel, a defense, prejudicing the defense and, by intentionally refusing to advocate this Petitioner's cause at/during trial and for failing to fulfill his duties accordingly.
VII. The court unconstitutionally sentenced Petitioner based on the belief that he should have been convicted for a higher offense.IV. 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) ; 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").
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, 15 19-20 (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.
V. Analysis A. Right to Present a Defense
Petitioner claims that he is entitled to habeas corpus relief because the trial court deprived him of his constitutional right to present a defense when it excluded a statement from the victim's medical report.
The right of a defendant to present a defense has long been recognized as "a fundamental element of due process of law." Washington v. State, 388 U.S. 14, 19 (1967). It is one of the "minimum essentials of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The Supreme Court has described the "most basic ingredients of due process of law" as follows:
"A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel."Washington v. Texas, 388 U.S. 14, 18 (1967) (emphasis supplied), quoting In re Oliver, 333 U.S. 257 (1948).
Further, the Supreme Court described the right to present a defense as follows:
The right to offer testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.Id.
This Court recognizes that, while the right to present a defense is a fundamental tenet of due process, "a defendant's right to present evidence is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 118 S.Ct. 1261, 1264 (1998). Indeed, "[a] defendant's interest in presenting . . . evidence may thus bow to accommodate other legitimate interests in the criminal trial process." Id. (internal quotations omitted). However, the exclusion of evidence is unconstitutional where it "infringe[s] upon a weighty interest of the accused." Id citing Rock v. Arkansas, 483 U.S. 44, 58 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973);Washington v. Texas, 388 U.S. 14, 22-23 (1967).
In determining whether the exclusion of evidence infringes upon a weighty interest of the accused, the court's role is not to determine whether the excluded evidence would have caused the jury to reach a different result. Davis v. Alaska, 415 U.S. 300, 317 (1973). Instead, the question is whether the defendant was afforded "'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S. 479, 485 (1984). The prosecutor's case must "encounter and 'survive the crucible of meaningful adversarial testing.'" Id. at 690-691 (1984), quoting United States v. Cronic, 466 U.S. 648, 656 (1984).
The last state court to issue a reasoned opinion regarding Petitioner's claim that he was denied his right to present a defense, the Michigan Court of Appeals, stated, in pertinent part:
On appeal, defendant first contends that the trial court's exclusion of a statement in the victim's medical report, which indicated that January 30, 1996, was the victim's last date of coitus preceding the February 3, 1996 incident, deprived him of his constitutional rights to due process, to confront witnesses and to present a defense. Defendant argues that the proffered evidence of the prior date of coitus may have exculpated him by demonstrating another possible source for the victim's injuries. We disagree.
This case is distinguishable from People v. Haley, 153 Mich. App. 400 (1986), because here defendant was essentially requesting that the jury be allowed to speculate about what might have happened during the prior January 30, 1996 incident. No offer of proof was made regarding the details of the January 30, 1996 incident. Thus, contrary to defendant's claim on appeal, the proffered evidence would not have permitted the jury to infer that the victim engaged in anal intercourse with someone else on an earlier occasion. Coupled with the medical testimony that these types of injuries usually heal within twelve to twenty-four hours and the absence of evidence that the victim had any condition that would delay the healing process, we hold that defendant failed to satisfy the materiality component of relevant evidence, that is, that the proffered evidence (the prior January 30 date of coitus) relate to a fact of consequence to the action (e.g., did anal penetration occur on February 3) . . . .
Similarly, the proffered evidence would not have permitted the jury to infer that the victim sustained breast injuries on January 30, 1996. Coupled with the medical testimony that the injuries should have been "yellower" if they occurred before February 3, we find that defendant did not establish the materiality component of relevancy, that is, that the proffered evidence (the prior January 30 date of coitus) relate to a fact of consequence to the action (e.g., did defendant act forcefully on February 3). Moreover, even if the proffered evidence arguably had some marginal relevancy, we would hold that the trial court did not abuse its discretion in excluding the evidence when balancing other interests in the criminal trial process. The proffered evidence of the prior date of coitus was not necessary to preserve defendant's right to confrontation or to otherwise present a defense to the charges of forcible penetration.People v. McGath, slip op. at 1-2.
Petitioner has failed to show that the state court's decision was contrary to or an unreasonable application of Supreme Court precedent. Petitioner was able to subject the prosecutor's case to meaningful adversarial testing without the admission of this evidence. Thus, Petitioner is not entitled to habeas corpus relief with respect to this claim.
B. Admission of Other Acts Evidence
Next, Petitioner contends that he is entitled to habeas corpus relief because the trial court erred in admitting evidence that Petitioner fled from jail while he was awaiting trial, that he disguised himself, and tried to convince his former girlfriend to provide an alibi for him by lying.
It is well-established that "[e]rrors of application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus actions. . . . Yet, when the error rises to the level of depriving the defendant of fundamental fairness, the claim is remediable on a petition for habeas corpus relief." Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir. 1984) (internal citations omitted).
The last state court to issue a reasoned opinion regarding Petitioner's claim, the Michigan Court of Appeals, held that the evidence was properly admitted:
Defendant next contends that he was convicted on the basis of improperly admitted and unduly prejudicial "other bad acts" evidence and argument regarding those other acts. We disagree.
To the extent that defendant claims evidentiary error, he has not preserved his claim for appellate review because it was not raised at trial. . . . Further, we are not persuaded that manifest injustice would occur if we decline to review this evidentiary issue, given the well settled rule that evidence of a defendant's flight and other conduct indicative of consciousness of guilt is admissible in Michigan.People v. McGath, slip op. at 2.
This Court concludes that Petitioner was not deprived of his fundamental right to fair trial when the trial court permitted testimony about Petitioner's alleged prior acts. Petitioner therefore is not entitled to habeas corpus relief with respect to this claim.
C. Alleged Prosecutorial Misconduct
Petitioner claims that the prosecutor engaged in misconduct in several ways. Specifically, Petitioner contends that the prosecutor improperly introduced rebuttal testimony as substantive evidence of Petitioner's guilt, improperly introduced rebuttal testimony on a collateral matter, knowingly allowed perjured testimony, and improperly moved for the suppression of evidence.
"Prosecutorial 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." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances." Angel v. Overberg, 682 F.2d 605 (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 Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Sixth Circuit has identified the factors a court should consider in weighing the extent of prosecutorial misconduct:
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Id. at 964 ( quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)).
The last state court to issue a reasoned opinion regarding Petitioner's claims of prosecutorial misconduct, the Michigan Court of Appeals, held, in pertinent part:
Defendant next contends that the prosecutor introduced improper rebuttal testimony on collateral matters in two instances . . . .
Here, the first instance of alleged prosecutorial misconduct arises out of the prosecutor's introduction of a sheriff deputy's testimony to rebut another witness' denial, elicited by the prosecutor, that defendant had asked the witness to lie in court in order to provide him with an alibi. Although defendant contends that the prosecutor called this witness for the sole purpose of eliciting the denial, we find that the record establishes only that the prosecutor was surprised by the denial. Moreover, there is no record in support of defendant's claim that the prosecutor attempted to use rebuttal testimony as substantive evidence. We are, thus, left with the issue whether the prosecutor's conduct in introducing the rebuttal testimony, consistent with its offer of proof, warrants relief under the standards for unpreserved claims of prosecutorial misconduct.
We hold that defendant has demonstrated no basis for relief, because the challenged evidence did not pertain to a central issue in the case. . . . At best, the evidence pertained to the issue of defendant's consciousness of guilt. . . . While consciousness of guilt was relevant at trial, the other evidence of defendant's consciousness of guilt, namely, defendant's flight from jail and efforts to avoid detection, coupled with the fact that no alibi defense was presented, persuades us that defendant has not demonstrated manifest injustice. Appellate relief is also unwarranted because, even if the rebuttal testimony should have been excluded, a timely defense objection to the proffered evidence, on a proper ground, could have cured any prejudice by precluding the rebuttal testimony. . . Thus, the prosecutor's conduct did not deprive defendant of a fair and impartial trial . . . .
The second instance of alleged prosecutorial misconduct arises out of the prosecutor's introduction of an attorney's testimony to rebut defendant's testimony that the reason he absconded from jail was that he became scared when his former attorney told him that he would be convicted and serve fifteen to thirty years in prison. Defendant contends that the rebuttal evidence was improper because it related to a collateral matter.
We find, however, that manifest injustice has not been shown because the rebuttal evidence contradicted defendant's own testimony on a relevant issue, namely, whether his flight was attributable to a consciousness of guilt, and did not involve impeachment on a collateral matter. . . . Furthermore, appellate relief of this unpreserved claim of prosecutorial misconduct is precluded because, even assuming that the rebuttal testimony could have been excluded, a timely defense objection to the prosecutor's offer of proof could have precluded the questioning.
. . . [W]e hold that defendant has not established any basis for relief based on prosecutorial misconduct. . . . Although a prosecutor may not knowingly use false testimony to obtain a conviction, People v. Weise, 425 Mich. 448, 454 (1986), the record here does not support defendant's claim that his conviction was based on false testimony. At best, the record establishes a credibility issue that was resolved by the jury in favor of finding that the victim gave credible testimony on the issue of forcible sexual penetration. Further, the prosecutor's objections at the trial to the admission of the preliminary examination transcript and Sergeant Saunders' report did not constitute an improper suppression of evidence or otherwise violate defendant's due process rights.People v. McGath, slip op. at 3-5.
Petitioner has failed to show that the prosecutor's conduct rendered his trial fundamentally unfair or that the state court's holding was contrary to or an unreasonable application of Supreme Court precedent. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.
D. Trial Court's Exclusion of Evidence
Petitioner claims that the trial court erred in certain evidentiary rulings. Specifically, Petitioner contends that the trial court erred in excluding the victim's preliminary examination testimony and police Sergeant Saunders' report.
The last state court to address these claims, the Michigan Court of Appeals, held, in pertinent part:
The trial court did not preclude the defense from using the victim's prior inconsistent statements at the preliminary examination, or in Sergeant Saunders' report, for purposes of impeachment. Also, the trial court's separate ruling to disallow admission of the entire preliminary examination transcript was not an abuse of discretion. . . . Defendant did not meet his burden of establishing a proper foundation for introducing this exhibit evidence in its entirety. . . . Further, we are not persuaded that the trial court abused its discretion in refusing to reopen proofs to admit Sergeant Saunders' report containing the victim's statements. . . . Apart from the untimely nature of the request, defendant failed to offer a proper foundation for admission of this exhibit evidence.People v. McGath, slip op. at 4-5.
As discussed above, 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 22, 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).
The trial court allowed portions of the preliminary examination and portions of Sergeant Saunders' report to be used for impeachment purposes. Petitioner has failed to show that the trial court's decision not to admit the entire preliminary examination or Sergeant Saunders' entire report denied him his fundamental right to a fair trial. Accordingly, he is not entitled to habeas corpus relief with respect to this claim.
E. Alleged Ineffective Assistance of Counsel
Next, Petitioner contends that he is entitled to habeas corpus relief because his trial counsel was ineffective. Specifically, Petitioner claims that his attorney was ineffective in failing to object to the admission of other acts evidence, failing to object to various alleged instances of prosecutorial misconduct, failing to present impeachment evidence, and because he had a conflict of interest.
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 a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced 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 considering an ineffective assistance of counsel claim, 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 citations omitted).
The Court further 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), cert denied 520 U.S. 1257 (1997).
The last state court to issue a reasoned opinion regarding Petitioner's ineffective assistance of counsel claims, the Michigan Court of Appeals, stated, in pertinent part:
Defendant's . . . claim that his attorney's failure to object to the [other acts] evidence constituted ineffective assistance of counsel is not properly before us because it is not raised in the statement of this issue. . . . We would find, however, that the existing record does not support defendant's claim of ineffective assistance of counsel . . . .
Defendant's alternative claim that his attorney's failure to object to the [rebuttal testimony elicited by the prosecutor] constituted ineffective assistance is not properly before us because it is not raised in the state of this issue. . . . Once again, however, the record does not support a claim of ineffective assistance of counsel. Neither deficient performance, under an objective standard of reasonableness, nor prejudice, is apparent from the record . . . .
. . . Defendant has not shown an actual conflict of interest adversely affecting his attorney's performance. . . . Further, we are not persuaded that defendant's attorney failed to present impeachment evidence that might have affected the outcome of the. . . . Lastly, a mere difference in opinion on trial tactics does not amount to ineffective assistance of counsel.People v. McGath, slip op. at 4-5.
Petitioner has failed to show that the state court's decision was contrary to or an unreasonable application of Supreme Court precedent. First, with respect to the admission of other acts evidence, the Michigan Court of Appeals held that, under Michigan law, evidence of Petitioner's flight and other conduct indicative of consciousness of guilt was admissible. Therefore, Petitioner's attorney was not ineffective in failing to object to the admission of properly admitted evidence. Petitioner also fails to establish that his attorney erred in not objecting to the rebuttal testimony elicited by the prosecutor.
Next, Petitioner claims that his attorney must have been operating under a conflict of interest because the attorney failed to present impeachment evidence which might have affected the outcome of the trial. Petitioner cannot establish a conflict of interest based only upon his dissatisfaction with counsel's performance. Petitioner presents no evidence of an actual conflict of interest. Moreover, he fails to show that the state court's conclusion that his attorney did not fail to present impeachment evidence which might have affected the outcome of the trial was contrary to or an unreasonable application of Supreme Court precedent.
Accordingly, Petitioner is not entitled to habeas corpus relief with respect to his ineffective assistance of counsel claims.
F. Sentencing Claim
Finally, Petitioner claims that the trial court unconstitutionally sentenced him based on the belief that he should have been convicted of a more serious offense.
The Michigan Court of Appeals affirmed Petitioner's sentence, stating, in pertinent part:
Defendant next contends that the trial court improperly sentenced him on the basis of its belief that he was guilty of a higher offense than that for which he was charged and convicted. We disagree. Viewed in context the trial court's remarks do not establish that it violated the principle that a sentencing court may not make an independent finding of guilt and then sentence a defendant on the basis of that finding. . . . . We conclude that defendant has not demonstrated that his sentences are invalid.People v. McGath, slip op. at 4.
Having reviewed the trial court sentencing transcript, the Court concludes that the Michigan Court of Appeals decision was not contrary to or an unreasonable application of Supreme Court precedent. Therefore, Petitioner is not entitled to habeas corpus relief with respect to this claim.
VI. 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.