Opinion
Case No. 01-CV-73079-DT
August 7, 2002
ORDER DENYING APPLICATION FOR THE WRIT OF HABEAS CORPUS
I. Introduction
This matter is pending before the Court on petitioner Rashad Shaheed's pro se application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1996 of: (1) possession with intent to deliver at least 50, but less than 225, grams of cocaine, MICH. COMP. LAWS § 333.7401(2)(a)(iii); (2) possession of at least 50, but less than 225, grams of cocaine, MICH. COMP. LAWS § 333.7403 (2)(a)(iii); and (3) possession of a firearm during the commission of a felony (felony firearm), MICH. COMP. LAWS § 750.227b. The convictions arose from a search of Petitioner's home during which police officers found cocaine and firearms. The search followed a controlled buy of narcotics by an alleged police informant on the previous day.
The trial court sentenced Petitioner to two years in prison for the felony firearm conviction, followed by consecutive sentences often to twenty years in prison for each of the narcotics convictions. In an appeal of right, Petitioner argued through counsel that: (1) he was entitled to have one of his two drug convictions vacated under the Double Jeopardy Clause; (2) there was insufficient evidence presented at trial to support his felony firearm conviction; (3) the jury instruction on felony firearm inadequately conveyed the definition of possession; and (4) the prosecutor engaged in misconduct during closing arguments. Petitioner raised the following additional arguments in two pro se supplemental briefs: (1) the trial court deprived him of his right to call a witness at an evidentiary hearing; (2) the trial court erred when it denied his request for jury instructions on lesser-included offenses; (3) the trial court abused its discretion in allowing drug profile evidence; (4) the sentencing court erred in ordering restitution and victim rights fees; and (5) the sentencing court erred by not awarding the proper amount of jail credit. The Michigan Court of Appeals vacated Petitioner's conviction for possession of cocaine on double jeopardy grounds, but affirmed Petitioner's other convictions. See People v. Shaheed, No. 206314 (Mich.Ct.App. Oct. 12, 1999).
Petitioner raised four of his pro se arguments in an application for leave to appeal in the Michigan Supreme Court. The supreme court denied leave to appeal. See People v. Shaheed, No. 116245 (Mich.Sup.Ct. June 26, 2000). Petitioner then moved for reconsideration on the ground that the trial court's instruction on felony firearm was inadequate. The supreme court denied Petitioner's motion for reconsideration on September 26, 2000.
Petitioner filed his habeas corpus petition on August 14, 2001. The grounds for relief read as follows:
I. Petitioner's conviction must be reversed where the trial judge's clearly erroneous decision denying the appearance and testimony of Petitioner's subpoenaed witness at an evidentiary hearing created a constitutional structural error thereby depriving Petitioner of his rights of compulsory process to call witnesses in his favor and due process under the 6th and 14th amendments of the United States Constitution and Michigan Constitution 1963, Article 1 section 20.
II. [The] trial judge's denial of Petitioner's request for instructions on cognate lesser included offenses to the principle charges when there was evidence on the record to support the instruction was in violation of Petitioner's U.S. Constitution amendments V, XIV; Michigan Constitution 1963 Article 1, section 17, right to due process of law.
III. Petitioner's convictions must be reversed where the trial court abused its discretion in allowing inadmissible prejudicial drug profile testimony thereby depriving Petitioner of his United States Constitution Fourteenth Amendment right of due process of law and the right to a fair trial.
IV. Sentence judge reversibly erred in violation of the Due Process Clause of the United States Constitution Fourteenth Amendment of property interest by following the recommendation of a probation officer by ordering Petitioner to pay $470.00 in restitution and $40.00 in victim rights fees in violation of MCL 769.12; MSA 1073, MCL 780.767(1); MSA 28.1287 (766) (13).
V. The trial judge reversibly erred by not instructing the jury on the elements of Petitioner's possession of a firearm during the commission of a felony charge but instead to possession of a controlled substance charge creating a constitutional structural error thereby depriving Petitioner of his U.S. Constitution Sixth Amendment right to a trial by jury.
Respondent argues in an answer to the habeas petition that Petitioner's claims are unexhausted state law claims, which are procedurally defaulted and not cognizable on habeas corpus review.
II. Exhaustion of State Remedies
The doctrine of exhaustion of state remedies requires state prisoners to fully and fairly present their claims to the state courts as a matter of federal law before raising those claims in a federal habeas corpus petition. 28 U.S.C. § 2254 (b)(1)(A) and (c); O'Sullivan v. Broerckel, 526 U.S. 838, 842 (1999); Stanford v. Parker, 266 F.3d 442, 451 (6th Cir. 2001), petition for cert. filed, (U.S. Apr. 29, 2002) (No. 01-1008). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845. Merely raising claims in state court as state law issues does not satisfy the exhaustion requirement. Stanford, 266 F.3d at 451.
Petitioner raised habeas claims II through V in the Michigan Court of Appeals as state law claims. Although he eventually styled the claims as federal constitutional issues in the Michigan Supreme Court, submission of a new claim to a state's highest court on discretionary review does not constitute fair presentation. Castille v. Peoples, 489 U.S. 346, 351 (1989).
In addition, Petitioner did not raise his fifth claim in the Michigan Supreme Court until he moved for reconsideration. "[R]aising an issue in a petition for rehearing on appeal does not constitute exhaustion of state remedies." Alcorn v. Smith, 724 F.2d 37, 40 (6th Cir. 1983) (citing Weigand v. Wingo, 380 F.2d 1022, 1023 (6th Cir. 1967)), vacated on other grounds, 471 U.S. 1096 (1985).
The failure to exhaust state remedies is not an absolute bar to consideration of a petitioner's claims when, as here, the claims lack merit and it would be a waste of time and judicial resources to require exhaustion. See Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999), cert. denied, 530 U.S. 1203 (2000); see also 28 U.S.C. § 2254 (b)(2) (authorizing federal courts to deny a habeas petition on its merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"). Accordingly, the Court will proceed to address Petitioner's claims.
III. Discussion
A. Compulsory Process
Petitioner alleges that he was deprived him of his Sixth Amendment right to call witnesses when the trial court denied his request to have the confidential informant, Alex Cole, testify at a pretrial evidentiary hearing on petitioner's motion to suppress evidence. Petitioner alleges that, after his arrest, Cole divulged to Petitioner's attorney that he (Cole) was the person who purchased drugs at petitioner's home on June 5, 1995. Cole's purchase of cocaine from Petitioner provided the basis for the warrant to search Petitioner's house. However, Cole allegedly told Petitioner's attorney that he was not searched before or after he entered Petitioner's home, that he was not working as a confidential informant at the time, and that he did not know state trooper Nathanial McQueen was an undercover police officer. Petitioner contends that Cole would have contradicted Trooper McQueen's testimony that he used a confidential informant, who purchased cocaine from Petitioner with marked money on June 5, 1995.
Respondent argues that Petitioner's first claim is really a Fourth Amendment challenge to the search warrant and, therefore, is not cognizable on habeas corpus review. The Supreme Court has held that, when "the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 481-82 (1976).
The Court believes that Petitioner's claim raises more than a Fourth Amendment issue. After all, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
The right to offer the 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.
Washington v. Texas, 388 U.S. 14, 19 (1967).
Nevertheless, "more than a mere absence of testimony is necessary to establish a violation of the right" to compulsory process as guaranteed by the Sixth Amendment. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). The excluded evidence must be "relevant and material and . . . vital to the defendants" to the extent that exclusion of the evidence could have "affected the outcome of the trial." Id. at 867-68.
As previously explained, Trooper Nathanial McQueen testified at a pretrial evidentiary hearing that, on June 5, 1995, a confidential informant purchased crack cocaine from Petitioner. Trooper McQueen testified that he searched the confidential informant before and after the controlled buy.
Petitioner's attorney claimed to know the identity of the informant. Consequently, he asked Trooper McQueen on cross-examination whether the confidential informant was Alex Cole. The prosecutor objected to the question, and the trial court sustained the prosecutor's objection. At the conclusion of the hearing, defense counsel said that he had an affidavit from Mr. Cole, which contradicted Trooper McQueen's testimony. The trial court adjourned the hearing until defense counsel could produce the informant for the purpose of challenging the validity of the search warrant.
The hearing resumed on February 8, 1996, when Alex Cole appeared in court with his attorney. Cole's attorney stated that Cole had been placed in an impossible position. The attorney stated that, if Cole were the informant, he would not want that information to be known. On the other hand, if Cole had not been acting as an informant, his testimony would indicate that he committed a major felony.
The trial court acknowledged Petitioner's right to subpoena witnesses, but denied Petitioner's request to have Cole testify. The trial court based its ruling on People v. Poindexter, 90 Mich. App. 599 (1979), which is based on Franks v. Delaware, 438 U.S. 154 (1978). The Supreme Court stated in Franks that
There is . . . a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing [on factual statements supporting a search warrant], the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.
Id. at 171-72 (footnote omitted).
After quoting similar wording from Poindexter, the trial court said:
Based upon the testimony that I have heard to this point, I don't have any question as to the honesty and integrity of the police witnesses that have testified and it seems to the Court that if . . . Mr. Cole is the person that even if he said it did not happen that that (sic) would not be sufficient to overcome the testimony presented by the police officers and that he should not be in the position of revealing himself either to be the confidential informant or not and particularly since there's no need for his testimony. And it would not be appropriate to require that he be produced to determine whether or not he in fact is the confidential informant.
Tr. of motion hearing, Feb. 8, 1996, at 14. The court excused Alex Cole after Cole's attorney hinted that Cole might assert his right not to incriminate himself if called as a witness.
Cole apparently did not deny that he purchased cocaine from Petitioner on June 5, 1995, with marked money given to him by Trooper McQueen and that he turned the cocaine over to McQueen. Therefore, even if one set aside Cole's alleged statements that he was not searched by McQueen, that he did not know McQueen was an undercover officer, and that he was not acting as a confidential informant on June 5, 1995, there undoubtedly was sufficient information in the warrant affidavit to support a finding of probable cause.
Petitioner has failed to show that the excluded testimony was vital to his defense and material to a degree that it would have affected the outcome of the trial. Thus, the trial court's ruling and the state appellate courts' refusal to grant relief did not result in decisions that were an unreasonable application of Supreme Court precedent. Petitioner is not entitled to relief on the basis of his Sixth Amendment claim. To the extent that he raises a Fourth Amendment claim, his claim is not cognizable on habeas review because he had a full and fair opportunity to raise that claim in state court. Stone, 428 U.S. 465, 481-82.
B. The Jury Instruction on Felony Firearm
Petitioner's fifth claim alleges that the trial court erred when it instructed the jury on felony firearm. Petitioner contends that the trial court failed to correctly instruct the jury on the "possession" component of the offense. Respondent argues that this claim is procedurally defaulted.
The Court has taken Petitioner's claims out of order to facilitate its analysis.
The doctrine of procedural default provides that,
[i]n 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).
In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the Sixth Circuit set forth the four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review:
First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. See Id. A procedural rule is adequate only when it is firmly established and regularly followed at the time it was applied. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). The rule would be an independent basis for disposition of a case if the state courts actually relied on the procedural bar. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. See Maupin, 785 F.2d at 138.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), petition for cert. filed, (U.S. Feb. 25, 2002) (No. 01-9946).
The state procedural rule in question requires defendants to make a contemporaneous objection at trial in order to obtain appellate review of a challenge to the jury instructions. See People v. Van Dorsten, 441 Mich. 540, 544-45 (1993) (quoting People v. Kelly, 423 Mich. 261, 271-72 (1985)). Petitioner violated this rule by not objecting to the jury instruction on felony firearm, either when the trial court first read the instruction or when the court re-read the instruction. (Tr. III, at 16-19, 22-28).
The last state court to consider Petitioner's fifth claim was the Michigan Court of Appeals. It enforced the contemporaneous-objection rule by stating in its opinion that Petitioner forfeited the issue by failing to object to the instruction as given.
The contemporaneous-objection rule was firmly established and regularly followed at the time of Petitioner's trial. Furthermore, the Supreme Court has determined that failure to comply with a state's contemporaneous-objection rule is an adequate state ground for denying appellate consideration of jury instructions. See Engle v. Isaac, 456 U.S. 107, 125 (1982). Therefore, in order to obtain habeas review of his claims, Petitioner must show "cause and prejudice" or a miscarriage of justice.
Petitioner has not alleged "cause and prejudice," and the miscarriage-of-justice exception applies only when a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner does not claim to be actually innocent. He also has not supported his constitutional claims with "new reliable evidence . . . that was not presented at trial," nor demonstrated that "it is more likely than not that no reasonable juror would have convicted him in the light of . . . new evidence." Schlup, 513 U.S. at 324, 327. Thus, a claim of actual innocence would not be credible, and Petitioner's state procedural default of failing to object at trial to the jury instruction on felony firearm bars substantive review of Petitioner's claim by this Court.
C. The Remaining Claims
Petitioner's second claim alleges that the trial court deprived him of his constitutional rights when the court denied his request for a jury instruction on lesser included offenses. Petitioner's third claim is that the trial court abused its discretion in admitting prejudicial drug profile testimony. Petitioner's fourth claim alleges that the sentencing court violated his right to due process by ordering him to pay $470.00 in restitution and $40.00 in victim rights fees. Respondent argues that these claims are procedurally defaulted.
The procedural rule in question once again is the contemporaneous-objection rule. See People v. Grant, 445 Mich. 535, 546 (1994) (stating that "the courts of this state have long recognized the importance of preserving issues for the purpose of appellate review. As a general rule, issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances"). Petitioner violated the procedural rule by: (1) withdrawing his request for jury instructions on lesser-included offenses and by expressing satisfaction with the jury instructions (Tr. III, at 4-6); (2) not objecting, or objecting on different grounds, to drug-profile testimony (Tr. 103-04, 113-17); and (3) not objecting at the sentence proceeding to the assessment of restitution and victim rights fees (Tr. of Sentencing, at 5-6).
The Michigan Court of Appeals declined to consider these claims after concluding that they "were not preserved for appeal." Shaheed, Mich. Ct. App. No. 206314, at 4. The contemporaneous-objection rule was firmly established and readily followed at the time of Petitioner's trial. Thus, claims II through IV are barred from substantive review unless Petitioner can show "cause and prejudice" or a miscarriage of justice.
Petitioner has not alleged "cause" for his failure to make the proper objections. Nor does it appear that he could establish "cause." The Supreme Court has defined "cause" as "some objective factor external to the defense [which] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of objective impediments to compliance with a procedural rule include (1) the lack of a legal or factual basis for a claim, (2) some interference by officials, and (3) ineffective assistance of counsel. Id. The first two examples are not applicable here, and Petitioner cannot assert ineffective assistance of counsel as "cause" because he did not assert ineffective assistance of counsel as an independent claim in state court. See id. at 488-89.
The Court need not determine if Petitioner was prejudiced by the alleged violations of federal law because he has not shown cause for his noncompliance with a state procedural rule. Smith v. Murray, 477 U.S. 527, 533 (1986). The miscarriage-of-justice exception does not apply, because Petitioner does not claim to be actually innocent, and he has not supported his constitutional claims with new reliable evidence. Schlup, 513 U.S. at 324, 326-27. Accordingly, claims II through IV are procedurally defaulted, and the Court declines to review those claims on the merits.
IV. Conclusion
Petitioner's first claim does not warrant granting the writ of habeas corpus, and the remaining claims are procedurally defaulted. Accordingly, the Court DENIES the application for a writ of habeas corpus.