Opinion
No. 01 -CV-71956-DT
March 26, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Maurice Munson (Petitioner) is a state inmate serving a twenty-five to sixty year sentence. Petitioner filed a pro se petition for a writ of habeas corpus claiming that he is incarcerated in violation of his constitutional rights. Respondent, through the Attorney General's office, filed a response, arguing that Petitioner's claims are procedurally defaulted and/or lack merit. Petitioner thereafter filed a reply, through counsel. Petitioner claims violations of Fourth Amendment, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. For the reasons which follow, the petition will be denied.
II. Procedural History
Following a jury trial on May 19, 1995, Petitioner was convicted of two counts of armed robbery, M.C.L. § 750.529, and two counts of assault with intent to commit criminal sexual conduct (sexual penetration), M.C.L. § 750.502(G)(1). Petitioner was found guilty but mentally ill. On May 19, 1995, Petitioner was sentenced within Michigan's sentencing guidelines to twenty-five to sixty years imprisonment for the armed robbery convictions and shorter concurrent sentences for the assault convictions.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claim:
I. Defendant's twenty-five to sixty year sentence for armed robbery violates the principle of proportionality.
The Michigan Court of Appeals affirmed Petitioner's sentence. People v. Munson, No. 187808, 1996 WL 33347822 (Mich.Ct.App. Dec. 20, 1996) (unpublished).
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, presenting the same claim presented on direct review to the Michigan Court of Appeals and the following five new grounds for relief:
I. Defendant was deprived of his liberty without due process of law, in violation of both state and federal constitutions where the police executed a warrantless arrest, search, and seizure.
II. Defendant was denied his state and federal constitutional right to a fair and impartial trial by the prosecutor's grievous misconduct.
III. Defendant was denied his Sixth Amendment right to the effective assistance of trial counsel under the state and federal constitutions by counsel's deficient performance.
IV. The cumulative effect of the errors committed during the trial deprived defendant of his due process and substantive constitutional rights to a fair trial.
V. Defendant was deprived of his liberty without due process of law under the state and federal constitutions by the deficient performance of appellate counsel.
The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Munson, 456 Mich. 888 (1997).
On October 22, 1998, Petitioner filed a motion for relief from judgment in the trial court raising the same five new claims set forth in his prior application for leave to appeal in the Michigan Supreme Court. The trial court denied the motion on November 4, 1998.
Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals which was denied "because defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Munson, No. 222944 (Mich.Ct.App. May 24, 2000) (unpublished). Petitioner's delayed application for leave to appeal to the Michigan Supreme Court was also denied for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D). People v. Munson, 463 Mich. 923 (2000).
Thereafter, Petitioner filed the pending petition for a writ of habeas corpus presenting the same five claims presented in application for leave to appeal to the Michigan Supreme Court and in his motion for relief from judgment.
III. Facts
The material facts leading to Petitioner's conviction as gleaned from the record follow.
Petitioner's convictions arise out of the armed robbery and assault with intent to commit criminal sexual conduct (penetration) of Sherrease Carter, age thirty, and her sixteen year old niece Shamika Kincaid at Juanita's House of Beauty in Detroit, Michigan on late Friday June 18, or early Saturday, June 19, 1993. Carter worked at the beauty salon. As Carter and Kincaid prepared to leave the salon, Petitioner entered, brandishing a large knife and telling them to go back inside. Petitioner took money, hair clippers, newly purchased clothing and sandals, and rings from the establishment and from Carter and Kincaid. These items were later seized by the police at Petitioner's residence.
The Michigan Court of Appeals summarized the facts of the robbery and assault as follows:
Defendant laid in waiting before robbing and attempting to rape a thirty-year old woman and her sixteen year old niece. The thirty-year old complainant was able to escape while defendant was inserting his penis into her vagina, by grabbing his knife and stabbing him repeatedly. Both women then ran outside totally naked, and attempted to stop a passerby to help them.People v. Munson, 1996 WL 33347822 at *1.
Carter and Kincaid saw Petitioner leaving the salon carrying packages containing sandals and clothing Kincaid had purchased earlier that day. Later, the two women returned to the salon and discovered a beeper which Petitioner had dropped during the incident.
Petitioner was arrested by Detroit police officers on June 19, 1993, at his aunt's apartment located at 283 Belmont in Detroit. Petitioner's former girlfriend, Keysha Monique Tate, was at the apartment and admitted the police after they repeatedly knocked on the door. Tate testified that the police announced themselves only as "UPS." An officer who participated in the raid testified that the police announced themselves as Detroit police.
Apparently, the police located Petitioner by tracing the beeper, which was in the name of Moe Rone Monson, and correlated this information with names of men with prior police records. The police obtained the name Maurice Munson and the address of 283 Belmont. The police may also have utilized the description of the perpetrator given by Carter and Kincaid in deciding to arrest Petitioner.
Upon Petitioner's arrest, the police seized incriminating evidence without a warrant including cash and gauze bandages, as well as a pair of silver hair clippers, a pair of silver sandals, various new clothing items and two diamond rings and one emerald ring later identified by the victims as having been stolen during the robbery.
Tate gave a statement to the police. In her statement, which she confirmed and elaborated upon at Petitioner's trial, Tate said that Petitioner had bandages all over his chest when she arrived Saturday morning Petitioner told Tate that a crackhead had stabbed him while trying to steal his car the previous night. Tate also stated and confirmed that the morning he was arrested, before any malls were open, Petitioner gave her a pair of silver clear sandals and various clothing items for which he had receipts, cash, and a diamond ring. Petitioner told Tate that he obtained the diamond ring at a pawn shop. Tate also testified that Petitioner told her he had lost his pager the night before and that Petitioner's pager number was 302-3871, the number of the pager found at the crime scene. Tate's descriptions of the sandals, clothing, and ring Petitioner gave her matched the descriptions of the items Carter and Kincaid testified were stolen from them. The hair clippers also matched the description of the clippers Carter testified were stolen in the robbery.
Carter and Kincaid positively identified Petitioner at separate corporeal lineups as the man who assaulted and robbed them at the beauty salon. Carter and Kincaid also positively identified Petitioner as the perpetrator at his trial.
Other evidence of Petitioner's guilt admitted at trial included the items stolen from the beauty salon, Carter, and Kincaid during the robbery, and the beeper.
Petitioner did not testify on his own behalf. Petitioner raised an insanity defense. Conflicting expert testimony was admitted. All of the experts agreed that Petitioner was mentally ill. The three defense experts testified that Petitioner is schizophrenic and borderline mentally retarded. One defense expert opined that Petitioner was not criminally responsible for his actions during the incident. The prosecution experts agreed that Petitioner was mentally ill, but found that he may have been malingering about some of his symptoms and during intelligence testing. Both prosecution experts opined that Petitioner was criminally responsible for his actions during the robbery and assault.
The jury found that Petitioner was guilty but mentally ill.
IV. Analysis A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241, et seq. ("AEDPA") sets forth the standard of review a federal court must apply when reviewing applications for a writ of habeas corpus that were filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA apply.
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. See Williams v. Taylor, 120 S.Ct. 1495 (2002). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).
B. Procedural Default
Respondent argues that Petitioner's claims are procedurally defaulted. for failure to present them before or during his trial and/or in his appeal of right.
The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.
Here, the Court begins its analysis of whether Petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. See Coleman, 501 U.S. at 729-30.
Here, the Michigan Court of Appeals and the Michigan Supreme Court relied upon MCR 6.508(D) in denying Petitioner leave to appeal. That rule provides, in part, that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised previously, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom. The state court's decisions, while brief, was based upon an independent and adequate state procedural rule. See Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000); Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002).
The state courts' reliance on Petitioner's failure to present his habeas claims in his appeal of right was an adequate and independent state ground on which to decline to review Petitioner's claim. See Engle v. Isaac, 456 U.S. 107, 110 (1982). As such, Petitioner's claims are procedurally defaulted. This Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
C. Cause and Prejudice
Petitioner asserts claims of ineffective assistance of trial and appellate counsel as cause for his failure to present and preserve these claims before or during his trial and present these claims on direct review. The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted). The United States Supreme Court set forth the standard applicable to ineffective assistance of counsel claims in Srickland v. Washington, 466 U.S. 668 (1984). In order to establish ineffective assistance of counsel, a petitioner must show that his attorney's performance was deficient and that that deficiency prejudiced petitioner. Id. at 687.
However, not just any deficiency in counsel's performance will excuse a procedural default, however; the assistance must have been so ineffective as to violate the Federal Constitution. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Attorney error that falls short of constitutional ineffective assistance of counsel does not constitute cause to excuse a procedural default. Bruton v. Phillips, 64 F. Supp.2d 669, 682-683 (E.D. Mich. 1999). If petitioner's ineffective assistance of appellate counsel claim lacks merit, it cannot constitute cause to excuse his default. Sherrill v. Hargett, 184 F.3d 1172, 1176 (10th Cir. 1999).
Thus, in order to determine whether petitioner received ineffective assistance of appellate counsel, this Court must first examine the merits of the claims which appellate counsel might have presented in petitioner's direct appeal, but failed to do so.
1. Fourth Amendment Claim
Petitioner claims that his constitutional rights under the Fourth Amendment were violated when the police searched the apartment at 283 Belmont and seized gravely inculpatory physical evidence without a warrant.
A federal habeas review of a petitioner's arrest or search and seizure by state police is barred where the state has provided a full and fair opportunity to litigate an illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-495 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For such an opportunity to have existed, the state must have provided, in the abstract, a mechanism by which the petitioner could raise the claim, and presentation of the claim must not have been frustrated by a failure of that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Here, Petitioner's counsel did not file a motion to suppress the evidence. Thus, in order to determine whether Stone prohibits review of Petitioner's Fourth Amendment claim, this Court must first determine whether the procedure afforded by Michigan permitted Petitioner to raise a Fourth Amendment claim. Because Petitioner concedes that Michigan has a procedural mechanism which presents an adequate opportunity to raise his Fourth Amendment claims, he must establish that a failure of that procedural mechanism somehow prevented him from litigating his claims.
Although Petitioner contends that the failure to present this claim to the state courts was the result of ineffective assistance of counsel, this argument does not establish that Petitioner's right to present these claims was frustrated by a failure in the procedural mechanism. Rather, Petitioner's Fourth Amendment claims were not properly presented to the trial and appellate courts because of decisions of counsel, whether these decisions were justified or not. Accordingly, any claims concerning the validity of his arrest and the search and seizure which occurred at 283 Belmont are not cognizable on habeas review under Stone v. Powell. Thus, Petitioner is not entitled to relief on this claim because (1) it is defaulted and (2) even if it was not defaulted, the claim is not cognizable on habeas review.
Petitioner invites this Court to rule that Stone v. Powell is unconstitutional and should be overruled. This Court is not persuaded that Petitioner's position on this matter is correct. In any event, habeas relief is only available where the prisoner is incarcerated pursuant to a judgment which is contrary to, or an unreasonable application of, federal constitutional law as determined by United States Supreme Court, or based on an unreasonable determination of the facts, not where the reviewing court is persuaded that the applicable United States Supreme Court precedent should be overruled. Even if Petitioner's arrest was illegal, this alone would not entitle him to habeas relief. Even if Petitioner's arrest was unlawful, it would not bar his prosecution with lawfully admitted evidence. "An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, 445 U.S. 463, 474, (1980) (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); Frisbie v. Collins, 342 U.S. 519, 72 (1952); Ker v. Illinois, 119 U.S. 436 (1886). The exclusionary rule limits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. "However, [the petitioner] is not himself a suppressible `fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." Crews, 445 U.S. at 474.
2. Prosecutorial Misconduct Claims
Petitioner contends that prosecutorial misconduct deprived him of a fair trial. Petitioner contends that the prosecutor committed misconduct by 1) asking a question which elicited a reply from a police witness that she checked a computer for criminal records matching the name Moe Rone Monson, 2) asking a defense psychologist if she was aware that Petitioner had attempted to escape from jail, 3) mistakenly arguing that Petitioner stole several pairs of hair clippers and sandals, when he had only stolen one pair of each, and 4) characterizing the factual evidence of his guilt as undisputed.
The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To determine flagrancy, the standard set by the Sixth Circuit is: 1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused. United States v. Monus, 128 F.3d 376, 394 (6th Cir. 1997) (citing United States v. Cobleigh, 75 F.3d 242, 247 (6th Cir. 1996)). A petitioner is not entitled to habeas relief unless the prosecutorial misconduct is "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial, . . . or so gross as probably to prejudice the defendant." Pritchett, 117 F.3d at 964 (citations omitted); United States v. Tocco, 200 F.3d 401, 420-21 (6th Cir. 2000).
In the present case, the complained of prosecutorial misconduct was not egregious, if it was misconduct at all. The prosecutor asked the police officer who drew the connection between the pager left by the perpetrator at the crime scene and Petitioner how this was done. This inquiry did not tend to mislead the jury. On the contrary, it was critical physical evidence revealing the identity of the perpetrator.
Officer Rosalind Means explained that she obtained the name Moe Rone Monson from the pager company. Then the prosecutor asked how she came up with Petitioner's name and she replied that then "[t]hen there was a computer check, put that particular name [Moe Rone Monson] into the computer looking for any criminal record matching that name. When that name—" The trial judge interrupted the officer at this point, to prevent information about Petitioner's prior criminal record from reaching the jury. After discussion outside the presence of the jury, the prosecutor was allowed to ask if the computer check was "something like a Secretary of State computer with names and addresses and things like that." Id. At 98. The officer then stated that one possible name and address provided by the computer was Maurice Munson, 283 Belmont.
There was no mention of any prior criminal record Petitioner may have had. It is possible that jurors may have inferred from the officer's testimony that Petitioner's name and address appeared in a computer storing criminal records. However, even if this was the case, this Court is not persuaded that such an implicit disclosure prejudiced Petitioner, especially because the evidence of Petitioner's guilt was overwhelming. In the face of the evidence, detailed above, the implication that Petitioner may have had a prior, unspecified criminal record was of slight importance. Accordingly, failure to object to this alleged prosecutorial misconduct was not ineffective assistance of trial counsel and failure to raise this issue on appeal was not ineffective assistance of appellate counsel. Consequently, Petitioner has not shown cause for his procedural default, or prejudice therefrom.
The same is true of Petitioner's other prosecutorial misconduct claims. Asking defense psychologist Firoza Van Horn if she was aware that Petitioner tried to escape from jail did not prejudice Petitioner. As noted by Respondent, if anything, this question and Dr. Van Horn's response supported Petitioner's insanity defense.
The prosecutor's mistaken statement that Petitioner stole several pairs of hair clippers and sandals when he only stole one pair of each was inconsequential. In some circumstances whether a defendant took one or several items might be material regarding whether the taking was inadvertent or intentional, or authorized or unauthorized. In the present case, however, there was no doubt that the perpetrator took the items intentionally, using force to do so and knowing that he was not authorized to take them. The prosecutor's misstatement about how many pairs of clippers and sandals Petitioner took did not prejudice Petitioner. Further, an inadvertent mistaken statement of immaterial fact does not constitute prosecutorial misconduct. This claim lacks merit.
Characterizing the factual evidence concerning the robbery and attempted sexual penetration as undisputed was not prosecutorial misconduct. Petitioner raised an insanity defense and did not dispute whether he committed the actus reus or factual elements of the crimes charged. Rather, the defense claimed that Petitioner was not criminally responsible by reason of insanity. The prosecutor stated in final argument that: "We're all here because this man right here, Maurice Munson, robbed Shemika Kincaid, robbed Sherrease Carter, and attempted to rape both of them. Intended and planned to rape both of them. That's undisputed in the facts."
"If two plausible interpretations can be given to the prosecutor's ambiguous final argument, the court should not strive to adopt one which casts doubt upon prosecutor's intentions." Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). Here, the complained-of remarks could be interpreted to mean that it was undisputed that Petitioner committed the factual elements of the crimes, or that it was also undisputed that Petitioner intended and planned the crimes and hence, implicitly, it was undisputed whether Petitioner was insane. The former interpretation is, in fact, far more plausible as the prosecutor focused his entire final argument on persuading the jury that petitioner was, indeed, criminally responsible and attempting to rebut the evidence that Petitioner was insane. Under the circumstances of this case, it was not improper for the prosecutor to argue that the facts of the robberies and attempted rapes were undisputed (as opposed to Petitioner's state of mind and criminal responsibility). The prosecutor did no more than this. As such, Petitioner fails to show that this complained-of remark was misconduct.
Because Petitioner's prosecutorial misconduct claims lack merit, it follows that neither trial nor appellate counsel were ineffective for failing to raise the prosecutorial misconduct claims set forth in the present petition. Petitioner has therefore not shown cause for his procedural defaults and review of these claims is barred.
3. Ineffective Assistance of Trial and Appellate Counsel Claims
Petitioner contends that trial counsel was ineffective for failing to seek suppression of the physical evidence seized in a warrantless search of 283 Belmont and that appellate counsel was ineffective for failing to present this issue in his appeal of right. Petitioner's primary complaint against his trial counsel is that he failed to file a motion to suppress the evidence seized from the apartment on the grounds that police conducted a warrantless search in the absence of exigent circumstances. Petitioner's primary complaint against appellate counsel is that he failed to raise this claim and a related ineffective assistance of trial counsel claim in his direct appeal.
As an initial matter, the restriction on federal habeas review of a Fourth Amendment claim does not extend to a habeas petitioner's Sixth Amendment claim of ineffective assistance of counsel involving counsel's failure to file a motion to suppress evidence obtained in violation of the Fourth Amendment. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). However, to prove that counsel's failure to litigate a Fourth Amendment claim competently is the principal claim of ineffectiveness, a defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence, in order to demonstrate actual prejudice. Id. at 375.
Petitioner's ineffective assistance of trial counsel claim was addressed by the trial court in its opinion denying petitioner's motion for post-conviction relief, when it stated that, given the strength of the evidence against Petitioner, particularly the eyewitness identifications and the fact that Petitioner left his pager at the crime scene, defense counsel was left with little option but to raise an insanity defense. As previously noted, there was other extremely powerful incriminating evidence, including the statement and testimony of Keysha Tate which strongly corroborated the testimony of Ms. Carter and Ms. Kincaid that Petitioner stole the items taken from them in the robbery, that Petitioner was the man Ms. Carter stabbed during the robbery, and that the pager left at the crime scene by the perpetrator was indeed Petitioner's.
Assuming for the sake of argument that a motion to suppress would have resulted in excluding the stolen items from evidence, Petitioner nonetheless can not show that there is a reasonable probability that the outcome of the trial would have been different, or that, had appellate counsel raised the Fourth Amendment claim in Petitioner's appeal of right there is a reasonable probability that the outcome of this appeal would have been different. Even without the actual stolen items, the evidence of Petitioner's guilt was overwhelming, given the fact that Tate's statement and testimony corroborated the testimony of Carter and Kincaid regarding the identity of the stolen items and the fact that Petitioner stole them. Further, Kincaid's statement and testimony also powerfully corroborated the other evidence that the pager left during the struggle at the crime scene was Petitioner's and that Petitioner was the perpetrator whom Ms. Carter stabbed during the incident. Accordingly, Petitioner's trial attorney was not ineffective in failing to file a motion to exclude the stolen objects themselves and appellate counsel was not ineffective for failing to raise this claim in Petitioner's appeal of right. Petitioner thus has failed to establish cause for his procedural default and is not entitled to habeas relief on these claims.
D. Miscarriage of Justice
Because Petitioner has failed to establish that his attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. His claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298 (1995).
The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. To make a showing of actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt." Id. at 327. Applying the Schlup standard of actual innocence to Petitioner's case, Petitioner has not persuaded this Court that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt.
E. Cumulative Error Claim
Petitioner's last claim is that cumulative trial errors deprived him of a fair trial. The Court of Appeals for the Sixth Circuit has held that regardless of whether each of a petitioner's alleged errors, standing alone, would require finding a deprivation of due process, the reviewing court may look to whether the cumulative effect of the errors was such that the petitioner was denied fundamental fairness. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). See also Lundy v. Campbell, 888 F.2d 467, 481 (6th Cir. 1989) (refusing to include in the court's cumulative error analysis petitioner's assertions of error which the court held were not arguably prejudicial to petitioner's right to a fundamentally fair trial).
Petitioner has set forth a host of alleged trial errors. However, the Court has determined that Petitioner's claimed errors either were not errors at all, were of no consequence and/or were procedurally defaulted. As such, Petitioner's cumulative error claim fails.
V. Conclusion
For the reasons stated above, the petition for a writ of habeas corpus is DENIED. This case is DISMISSED.