Opinion
Case Number: 00-71493
August 17, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Deon Alex Powell, a state inmate currently incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a 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 the sexual assault of Penny McDougal on February 21, 1998. Ms. McDougal testified that, at approximately 9:00 p.m. on that date, she went to a White Castle with Petitioner, after which he dropped her off at her house. Later that evening, she contacted Petitioner via his beeper. Petitioner drove to Ms. McDougal's house, picked her up, and they drove to his apartment. On the way to Petitioner's house, they stopped for marijuana and alcohol. Shortly after they arrived at this house, co-defendants Mark Anthony Sheppard and Miquel Detaun Rayford arrived.
Ms. McDougal testified that, shortly after Sheppard and Rayford arrived, Petitioner showed her a handgun in a dresser drawer and told her they were going to make a movie. She noticed that the red light on the video camera was on and that there was a videotape in the camera. Ms. McDougal testified that she was forced to engage in various sex acts with Petitioner and co-defendants Sheppard and Rayford while being filmed by the video camera.
Petitioner did not deny that the sex acts occurred, but claimed that they were consensual.
III. Procedural History
Following a jury trial in Recorder's Court for the City of Detroit, Petitioner was convicted of six counts of criminal sexual conduct in the first degree and felony firearm. On November 27, 1995, the trial court dismissed three of the six counts of criminal sexual conduct as redundant, and sentenced Petitioner to twenty to forty years imprisonment for the three remaining criminal sexual conduct convictions, to be served consecutively to two years imprisonment for the felony firearm conviction.
Petitioner filed an appeal in the Michigan Court of Appeals, presenting the following claims:
I. The trial court's instructing the jury to take into consideration, when evaluating the main defense witness' testimony, that Mr. Powell's attorney failed to present the required notice of alibi had the effect of depriving Mr. Powell of his state and federal constitutional rights to present a defense.
II. Mr. Powell was denied the effective assistance of counsel by the following:
A. The trial court ascertaining that he had a reputation of being sleazy, which resulted in the trial court finding that counsel deliberately failed to file a notice of alibi.
B. Interjecting irrelevant personal matters concerning the complainant, such as mentioning an irrelevant possible abortion; or whether or not the complainant adequately eared for her two children, which may have resulted in a higher sentence.
C. If the court were correct in determining that the testimony of Ms. Whitaker was alibi testimony, then the failure to file the notice of alibi was ineffective assistance of counsel.
D. Failing to object to the instructions concerning the felony firearm charge.
III. Mr. Powell was denied due process and a fair trial by the trial court using extra judicial information about his attorney against Mr. Powell.
IV. Mr. Powell was denied his constitutional right that the jury be instructed that all of the elements be proved beyond a reasonable doubt by the trial court telling the jury that "it is not necessary, however, that the defendant be convicted of those crimes."
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Powell, No. 193319 (Mich.Ct.App. June 19, 1998).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, which was denied. People v. Powell, No. 112546 (Mich. March 30, 1999).
On March 27, 2000, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. The trial court's instructing the jury to take into consideration, when evaluating the main defense witness' testimony, that Mr. Powell's attorney had failed to present the required notice of alibi had the effect of depriving Mr. Powell of his federal constitutional rights to a fair trial and to present a defense.
II.A. Mr. Powell was denied the constitutional right to effective assistance because the trial court ascertained that defense counsel had a reputation of being sleazy, which resulted in the trial court finding that counsel deliberately failed to file a notice of alibi.
III.B. Defendant was denied effective assistance of counsel because of counsel's interjection of irrelevant personal matters concerning the complainant, such as mentioning irrelevant possible abortion; or whether or not the complainant adequately cared for her two children, which may have resulted in a higher sentence.
III. Mr. Powell was denied due process and a fair trial by the trial court using extra judicial information about his attorney against Mr. Powell.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 to 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. Chanleau, 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'1 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 152 1-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
V. Analysis
A. Jury Instruction Regarding Alibi Defense
Petitioner argues that he is entitled to a writ of habeas corpus because the trial court deprived him of his Constitutional right to present a complete defense when it gave a cautionary instruction to the jury regarding Petitioner's alibi defense.
The following, in pertinent part, is the instruction to which Petitioner objects:
Defendant Powell has presented evidence through Latrease [Whitaker] that he was not with the complaining witness at the time during which she testified that they were together. This is called an alibi defense. By law, a Defendant is required to inform the Prosecutor of his intent to introduce alibi evidence at least ten days prior to trial. The Defendant Powell in this case did not provide notice of any alibi evidence until after this trial started and the prosecution had finished presenting its case.
In evaluating such testimony you may take into account Defendant Powell's failure to present the required notice. In deciding whether to accept some, all or not of Latrease Whitaker's testimony you may, but are not required to, consider whether the lack of the notice required — did the lack of the notice which was required [sic].
Tr., Vol VI., p. 161.
The last state court to issue a reasoned opinion regarding Petitioner's claim, the Michigan Court of Appeals, held, in pertinent part:
At the close of the prosecution's proofs, Latrease Whitaker was called to testify on behalf of defendant Powell. She testified that at about 9:00 p.m. on February 21, 1995, defendant Powell picked her up at her house and they drove to defendant's house in Southfield where they watched videos until after midnight. Hence, Whitaker's testimony disputed the complainant's testimony as to the whereabouts of defendant Powell for the two hours between 10:00 p.m. and midnight. The prosecutor objected to Whitaker's testimony on the basis that defendant Powell had not filed the statutorily-required notice of an intent to present an alibi defense. Powell's trial counsel argued that Whitaker's testimony was not being presented as alibi testimony, but rather to impeach the complainant's credibility. The trial court agreed with the prosecutor that Whitaker was an alibi witness, and found that defense counsel had intentionally failed to file a notice of alibi. The court made an unnecessary and derogatory comment toward defense counsel, then ruled that the appropriate remedy was not to strike the testimony but rather to instruct the jury that, when evaluating Whitaker's testimony and credibility, it could take into account Powell's failure to file the required notice. Powell's trial counsel objected to the proposed instruction only to the extent that it denigrated Whitaker's credibility. After the trial court altered the proposed instruction pursuant to counsel's objection and so instructed the jury, Powell's counsel expressed his satisfaction with the instructions as given.
Defendant Powell first argues that he was denied a fair trial because of the trial court's curative instruction. Given the defense theory of consent and the attack on the complainant's credibility — i.e., whether her perception of the events that evening was distorted by her drug and alcohol use a we are of the view that Latrease Whitaker was properly called by defendant Powell as a non-alibi defense witness. Thus, the trial court erred in finding otherwise, and in giving the curative instruction to the jury. We find the error to be harmless, however, because the curative instruction did not preclude the jury from accepting or rejecting Whitaker's testimony. Moreover, we are not persuaded that any rational juror would have voted to acquit defendant Powell on the sole basis of the erroneous curative instruction. Accordingly, we find no error requiring reversal on this basis.People v. Powell, slip op. at 4.
An erroneous jury instruction warrants habeas corpus relief only where the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) ( quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). [I]t must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned', but that it violated some [constitutional) right'". Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Further, "[i]t is well established that the instruction "may not be judged in artificial isolation, ' but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v, Naughten, 414 U.S. 141, 147 (1973)).
Petitioner has failed to show that the trial court's curative instruction so infected the entire trial as to result in a deprivation of his right to due process. Therefore, Petitioner is not entitled to habeas corpus relief with respect to this claim.
B. Alleged Ineffective Assistance of Counsel
Petitioner claims that he is entitled to habeas corpus relief because he received ineffective assistance of trial counsel. Specifically, Petitioner argues that the trial court judge perceived Petitioner's attorney as having a "sleazy" reputation. Petitioner claims that, because the trial court judge had such a negative view of Petitioner's counsel, counsel was unable to effectively represent Petitioner. Petitioner further argues that his attorney angered the trial court judge when the mentioned an entry in the victim's diary regarding a possible abortion, Petitioner claims that the trial court judge was so angered by counsel's reference to the abortion that it impacted the sentence imposed by the trial court judge, Petitioner concludes that this deprived him of the effective assistance of counsel at sentencing.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This "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 Michigan Court of Appeals, the last state court to issue a reasoned opinion addressing the merits of Petitioner's ineffective assistance of counsel claim held, in pertinent part:
Defendant Powell next argues that he was denied effective assistance of counsel. To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed by the Sixth Amendment. People v. Daniel, 207 Mich. App. 47, 58 (1994). The deficiency must be prejudicial to the defendant. Id. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. . . . Because defendant failed to move for an evidentiary hearing or a new trial on the basis of ineffective assistance of counsel, our review is limited to the available record.
Defendant Powell argues that his trial counsel was rendered ineffective when the trial judge made derogatory personal comments toward counsel, ruled that counsel's failure to file a notice of alibi was done in bad faith, and chastised counsel for the perceived interjection of irrelevant issues at trial. The right to effective assistance of counsel focuses on the actual assistance received. People v. Pubrat, 451 Mich. 589, 596 (1996). As discussed above, we have found trial counsel's conduct regarding witness Latrease Whitaker to constitute reasonable trial strategy under the circumstances. Indeed, because the defense theory was one of consent, we believe that had Powell's trial counsel presented Whitaker as an alibi witness, as the trial court ruled he should have, he may have arguably violated the Rules of Professional Conduct, which prohibit the subornation of perjury. See People v. Hubbard, 156 Mich. App. 712, 715-16 (1986). "Trial counsel's refusal to prepare and present a defense which would have been premised upon what he reasonably believed was perjured testimony was not unreasonable conduct, nor a serious mistake which deprived defendant of a reasonably likely chance of acquittal." Id. at 716 . . . .
. . . [W]e are not persuaded by defendant's argument that the trial court may have imposed a harsher sentence against defendant Powell in response to what the court perceived was counsel's interjection of irrelevant issues at trial. Contrary to defendant's claim, the trial court did not sentence defendant to the "high end of the guidelines." In fact, notwithstanding that defendant had a prior criminal conviction and that he had a leadership role in these offenses, the court sentenced defendant at the lower end of the recommended guidelines range of fifteen to thirty years. In imposing sentence, the trial court noted that it believed defendant's convictions were supported by the evidence, particularly noting that it had found the complainant's testimony to be credible. Accordingly, the record does not support defendant's claim that trial counsel was rendered ineffective because of the trial judge's negative perception toward counsel.People v. Powell, slip op. at 4-S.
Although the Michigan Court of Appeals did not specifically cite the United States Supreme Court's opinion in Strickland, it clearly applied the standard articulated therein. Petitioner has failed to show that the state court's application of that standard was unreasonable. Accordingly, Petitioner is not entitled to the issuance of a writ of habeas corpus with respect to this claim.
C. Alleged Improper Comments by Trial Court Judge
Finally, Petitioner claims that he is entitled to a writ of habeas corpus because the trial judge made improper extra-judicial comments regarding the reputation of Petitioner's attorney. Petitioner claims that such comments violated his rights to due process and a fair trial.
The Michigan Court of Appeals held that, although the trial judge's comments were improper, the comments did not render Petitioner's trial unfair:
[A]lthough the trial judge's derogatory comments toward counsel were wholly inappropriate, our review of the entire record does not indicate that the judicial veil of impartiality was pierced or that defendant Powell suffered outcome-determinative prejudice because of the trial judge's feelings toward counsel. [footnote: Fortunately the comments were made outside the presence of the juries.] Contrary to defendant's assertions, the record does not support a finding that the trial court considered extra-judicial information regarding defense counsel when it fashioned its remedy for the perceived violation of the alibi notice statute.People v. Powell, slip op. at 5.
While the trial court made some inappropriate comments about defense counsel, those comments were made outside the presence of the jury. Other than Petitioner's conclusory allegation, there is no evidence to indicate that the trial court's displeasure with some of defense counsel's tactics in any way impacted the course of the trial, jury deliberations, or the sentence imposed by the trial court judge. Thus, 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.