Opinion
CASE NO. 99-CV-75038-DT
December 7, 2000
MEMORANDUM OPINION AND ORDER
I. Introduction
Before the Court is petitioner Keith D. Smith's habeas corpus petition under 28 U.S.C. § 2254. In 1993, Petitioner was charged with first-degree murder. On October 21, 1993, a circuit court jury in Washtenaw County, Michigan convicted Petitioner of second-degree murder. See MICH. COMP. LAWS ANN. § 750.317; MICH. STAT. ANN. § 28.549. The conviction arose from evidence that Petitioner
purchased crack cocaine from [Trevor Small] and owed him money for the drugs. [Petitioner] took [Small] to the basement of his sister's home. He stabbed [Small] three times from behind with a butcher knife that he had obtained from the upstairs kitchen. There was no weapon found on [Small]. Following the killing, [Petitioner] attempted to dispose of the body.People v. Smith, No. 172472, at 3 (Mich.Ct.App. April 12, 1996).
On November 19, 1993, the trial court sentenced Petitioner to a term of fifteen to forty years in prison for the murder. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished per curiam opinion. See id at 1. The Michigan Supreme Court denied leave to appeal. See People v. Smith, No. 106182 (Mich.Sup.Ct. Jan. 31, 1997).
Petitioner filed a motion for relief from judgment in which he raised his habeas claims. The trial court denied the motion, see People v. Smith, No. CRW-93-0760-FC (Washtenaw County Cir. Ct. July 3, 1998), and the State's appellate courts denied leave to appeal, citing M.C.R. 6.508(D). See People v. Smith, No. 214604 (Mich.Ct.App. Feb. 16, 1999); People v. Smith, No. 114214 (Mich.Sup.Ct. Aug. 31, 1999).
In 1998, Petitioner filed two federal habeas corpus petitions, which were dismissed without prejudice because Petitioner had not exhausted state court remedies for his claims. See Smith v. Elo, No. 98-CV-70541-DT (E.D. Mich. Aug. 31, 1998); Smith v. Smith, No. 98-CV — 73915-DT (E.D. Mich. Oct. 22, 1998). On September 15, 1999, Petitioner filed the pending habeas corpus petition through counsel. The petition alleges: (1) ineffective assistance of trial counsel based on defense counsel's (a) conflict of interest, (b) failure to present a defense of imperfect self-defense, and (c) failure to request a jury instruction on imperfect self defense; (2) that the trial court's failure to instruct the jury on imperfect self-defense violated his right to due process; and (3) ineffective assistance of appellate counsel based on counsel's failure to raise claims one and two in the appeal of right.
II. Discussion
Respondent argues in an answer filed through counsel that the Court should deny the petition because Petitioner's claims are barred from habeas review by his state procedural default. The Court agrees for the reasons set forth below. Petitioner asserts that Respondent is barred by his untimely responsive pleading from raising a procedural default defense. However, this Court may raise the issue sua sponte even if Respondent had not raised it. Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).
Procedural Default
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); see Harris v. Reed, 489 U.S. 255, 263 (1989) (holding that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar") (citation omitted). When analyzing a procedurally defaulted claim, a federal habeas court must consider:
The Sixth Circuit has articulated the doctrine of procedural default in the following manner:
When a habeas petitioner fails to obtain consideration of a claim by a state court. . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case.Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000).
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000), cert. denied sub nom Bagley v. White, _ S.Ct __, 2000 WL 1203520 (U.S. Oct. 10, 2000) (No. 00-228).
A. The State Procedural Rule and Reliance on the Rule
The procedural rule in question here is M.C.R. 6.508(D)(3) (effective October 1, 1989), which provides that a state court may not grant relief from judgment if the defendant alleges grounds for relief that could have been raised on appeal or in a prior motion for relief from judgment. An exception may be made when the defendant demonstrates good cause for the omission and actual prejudice or innocence of the crime. Petitioner violated Rule 6.508(D)(3) by raising his claims in a motion for relief from judgment although he could have raised his claims earlier. He could have presented his allegations regarding trial counsel and the jury instructions in the appeal of right. Although he arguably could not have raised his claim about appellate counsel then, he appears to have asserted that claim for the purpose of establishing "cause" for his procedural default.
The last state court to adjudicate Petitioner's claims in a reasoned opinion was the trial court. It enforced Rule 6.508(D)(3) by citing the rule, by explaining it, and by analyzing Petitioner's claims under the "cause and prejudice" component of the rule.
B. Adequate and Independent State Ground
The trial court's reliance on M.C.R. 6.508(D)(3) was an adequate and independent state ground for foreclosing review because the rule was firmly established and regularly followed before Petitioner's trial and appeal of right. Luberda v. Trippett, 211 F.3d 1004, 1006-08 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994 (6th Cir. 1998). Accordingly, Petitioner must show cause for his procedural error and resulting prejudice or a miscarriage ofjustice.
C. Cause
Petitioner's third claim is that his appellate attorney was ineffective for failing to raise his first two claims in the appeal of right. Ineffective assistance of counsel that rises to the level of a constitutional violation is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, to establish ineffective assistance of appellate counsel, counsel's performance must be deficient and the deficient performance must have prejudiced the appeal. Strickland, 466 U.S. at 687; Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, __ U.S. __ 120 S.Ct. 1587 (1999). For the following reasons, the Court concludes that appellate counsel was not ineffective for failing to raise Petitioner's first two claims in the appeal of right.
1. Trial Counsel's Alleged Conflict of Interest and Failure to Cross-Examine a Witness about a Prior Conviction
Petitioner's first claim alleges ineffective assistance of trial counsel on two grounds: conflict of interest and failure to defend on an imperfect self-defense theory. The Court will address the conflict of interest issue in the following paragraphs. The Court will address the imperfect self-defense issue in connection with Petitioner's second claim, which alleges that the trial court should have instructed the jury on imperfect self-defense.
Petitioner contends that his trial attorney's performance was compromised by a conflict of interest. The attorney was an assistant Washtenaw County Public Defender. Before trial, the attorney moved to withdraw from the case because his office previously represented two of the prosecution's witnesses (Girlet Sanders and Debra Hailes). The trial court denied the request, saying:
I don't think, in and of itself, the fact that your office-and I understand not you but your office, has represented other persons who might be witnesses in this case would automatically disqualify you.
I would want some assurance that you wouldn't have a conflict where you would be obtaining cross-examination matters from the file.
I'm not saying that you can't, of course, talk with people who've represented the witnesses before, just so long as they don't divulge to you any confidential information they have.
What I'm saying is this. That you not consult the files of the persons who other attorneys in your office represented.
You may discuss, of course, with the attorneys in your office, but they might have a confidential relationship with their clients that they couldn't divulge to you.
"MH" refers to the transcript of the hearing on Petitioner's motion to withdraw and for discovery. Future references to "T" refer to the transcript of trial, which consists of five volumes (I-V).
The trial court then asked Petitioner if it was agreeable with him for defense counsel to continue representing him in this case. Petitioner responded, "At this point, yes." The court advised Petitioner to bring the matter to his attention if the situation changed. The court said to defense counsel, "[Y]ou may represent him so long as you don't divulge private information of other clients of your office." Id. at 5. The record does not reflect any further discussion of the matter after the motion hearing.
Petitioner contends that the trial court's order prevented him from cross-examining Girlet Sanders and other prosecution witnesses about Sanders' prior conviction for carrying a concealed weapon ("CCW"). But for the conflict in interest, argues Petitioner, his attorney could have used Sanders' CCW conviction to impeach or cross-examine the prosecution witnesses who testified that Sanders did not carry a gun on the night of the stabbing. Evidence of Sanders' conviction allegedly would have supported Petitioner's theory that he acted in lawful defense of self or others when attacking Trevor Small because he reasonably believed Sanders passed a gun to Small.
To establish ineffective assistance of trial counsel, Petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Defense attorneys owe their clients a duty of loyalty, which includes the duty to avoid conflicts of interest. Id. at 688 (citing Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)).
"[A] conflict of interest alone is not sufficient to justify reversal of a conviction." United States v. Hall, 200 F.3d 962, 966 (6th Cir. 2000) (citing Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir. 1987)). And although "prejudice is presumed when counsel is burdened by an actual conflict of interest," Strickland, 466 U.S. at 692 (citing Sullivan, 446 U.S. at 345-350), Petitioner must demonstrate "that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Id. (citing Cuyler, 446 U.S. at 350, 348). "Appellants must make a factual showing of inconsistent interests and must demonstrate that the attorney `made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.'" Thomas, 818 F.2d at 481.
Girlet Sanders' prior adjudications apparently were a matter of public record, and defense counsel was aware of them. See MH at 7-9. Moreover, the trial court encouraged defense counsel to obtain Sanders' public record. See id. at 9. Although the trial court restricted defense counsel from using confidential information from office files, defense counsel was not prevented by loyalty concerns from cross-examining witnesses about Sanders' public record. Thus, an actual conflict of interest did not adversely affect defense counsel's performance.
The remaining question is whether defense counsel was ineffective for failing to cross-examine witnesses about Sanders' previous adjudications. Petitioner testified that he saw Girlet Sanders with a gun on the night of the stabbing and that Sanders and Trevor Small passed something between them. See T III at 160-62, 178. Three prosecution witnesses, however, testified that they did not see a gun while they were with Sanders and Small on the night of the stabbing. See T II at 151-52 (Debra Hailes' testimony), at 187 (Girlet Sanders' testimony), and at 213-14 (Sherry Vinston's testimony). Girlet Sanders denied carrying a gun that evening, id. at 206, and Sherry Vinston testified that she had never seen Trevor Small with a weapon in the four to five months that she knew him. She claimed that Small refused to carry a weapon even though she had encouraged him to do so. See id. at 214.
In light of the overwhelming evidence against Petitioner, including the testimony of three witnesses who did not see a gun, evidence of Sanders' CCW adjudication likely would not have lead the jury to conclude that Sanders had a gun on the night in question. Therefore, trial counsel's failure to cross-examine witnesses about Sanders' CCW adjudication did not prejudice the defense, and appellate counsel's performance was not deficient for failing to raise the conflict-of-interest issue in the appeal of right.
2. Imperfect Self-Defense
Petitioner alleges as part of his first claim that his trial attorney should have presented a defense of imperfect self-defense based on intoxication and requested jury instruction on imperfect self-defense. Petitioner's second claim is that the trial court should have instructed sua sponte on imperfect self-defense.
"In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." People v. Heflin, 434 Mich. 482, 502 (1990). To prevail on a theory of self defense, the action taken by the defendant must have appeared at the time to be immediately necessary. People v. Amos, 163 Mich. App. 50, 56 (1987).
Imperfect self-defense, on the other hand, "is a qualified defense which can mitigate an act of second-degree murder to voluntary manslaughter." Id. "Although the Michigan Supreme Court has not yet considered the viability of the theory of imperfect self-defense, panels of [the Michigan Court of Appeals] have recognized the doctrine where a defendant would have been entitled to invoke the theory of self-defense had he not been the initial aggressor." People v. Kemp, 202 Mich. App. 318, 323 (1993). A defendant "is not entitled to invoke the doctrine of imperfect self-defense to mitigate his crime to manslaughter if the circumstances surrounding the incident indicate that he initiated the confrontation between himself and the victim with the intent to kill or do great bodily harm." Id. at 324. A defendant also "would not be entitled to claim imperfect self-defense if he acted with excessive force." Id. at 325.
The confrontation in this case arose from Petitioner's purchase of crack cocaine from Trevor Small on credit. Petitioner testified that he and Small went to Petitioner's home to acquire money for the purchase. When Small insisted on going inside, Petitioner instructed him to wait in the basement. Petitioner became frightened by Small's comments and actions. Small kept his hand in his pocket the entire time. He (Petitioner) was "pretty sure" that Small had a gun because earlier in the evening he had seen Girlet Sanders with a gun, and he saw something pass between Sanders and Small. Petitioner also was frightened when Small became angry and impatient at Petitioner's inability to come up with the money. Small threatened to go upstairs himself to get the money from Petitioner's sister. When Small subsequently said, "Let's go," Petitioner picked up a knife, grabbed Small, and stabbed him. His intent was to stop Small from harming him or family members who were sleeping upstairs; he did not intend to kill him. See T III at 159-87, 192, 213-14.
Despite Petitioner's testimony that he killed Small to protect himself and his family, there was considerable evidence that he acted with the intent to kill or to do great bodily harm and that he used excessive force. Petitioner testified that Small made threats, but he admitted that Small did not threaten to shoot him. Id. at 179. Small's only threat apparently was the threat to go upstairs and get the money himself from Petitioner's sister.
Petitioner also testified that Small's back was toward him when he stabbed him. Small was 5'4" and 120 pounds at the time, and Petitioner was 5'6" and 185 pounds at the time of trial. See T II at 99 and T IV at 193-94.
After the stabbing, Petitioner discovered that Small was unarmed. Petitioner testified that he did not call the police following the incident because he was afraid of the consequences. Instead, he dragged the body to the garage, cleaned up the basement, and left the state. See T IV at 185-92.
Trooper Lowry Astin testified that he stopped Petitioner while patrolling traffic in Arkansas a few days after the stabbing. He had determined that the license plates on Petitioner's car were stolen. When he asked Petitioner whether he was wanted for anything, Petitioner replied that he was wanted for murder in Ypsilanti, Michigan. During a subsequent interview, Petitioner informed Trooper Astin that he killed a drug dealer in his sister's basement by stabbing him with a butcher knife that he got from the kitchen. Petitioner explained to the trooper that he came up behind the victim, who was sitting in a chair, and stabbed him in the neck. Petitioner had said that the victim made threats and that he thought the victim had a gun. See T III at 13-25.
The facts as summarized above suggest that Petitioner possessed the intent to kill or to do great bodily harm and that he acted with excessive force. He stabbed Trevor Small from behind with a knife that he apparently acquired from another floor of the residence. Small had not brandished a weapon, and his only threat was to obtain the money owed to him. Nothing in the record indicates that Petitioner's mind and body were so affected by the consumption of drugs or alcohol that he could not function normally. Given these facts, Petitioner arguably was not entitled to invoke the doctrine of imperfect self-defense, and the trial court was not obligated to instruct sua sponte on imperfect self-defense.
It follows that appellate counsel's performance was not deficient as a result of his failure to raise Petitioner's claims about imperfect self-defense. Furthermore, Petitioner had no absolute right to compel his attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the sound professional judgment of counsel. . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
D. Prejudice
The Court concludes that appellate counsel's performance was not deficient and, therefore, Petitioner has not shown cause for failing to raise his first two claims in the appeal of right. The Court need not determine if Petitioner was prejudiced by the alleged violations of federal law because he has not shown cause for his procedural errors. Smith v. Murray, 477 U.S. 527, 533 (1986); Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982).
The Court nevertheless notes in connection with Petitioner's claims about imperfect selfdefense that the trial court instructed the jurors on the lesser included offenses of second-degree murder and voluntary manslaughter. The trial court also instructed the jurors on Petitioner's theory of self-defense and defense of others and Petitioner's claim that he lacked specific intent to kill because of his use of drugs. See T IV at 55-65. By finding Petitioner guilty of second-degree murder, the jury obviously concluded that Petitioner possessed a culpable state of mind and that his conduct was not justified. The jury, no doubt, would have reached the same conclusion if presented with a defense of imperfect self-defense. Thus, it appears that no prejudice resulted from either trial counsel's failure to invoke imperfect self-defense or appellate counsel's failure to challenge trial counsel's performance.
E. Miscarriage of Justice
The only remaining question is whether the Court's failure to consider Petitioner's defaulted claims on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Carrier, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "To be credible, [a claim of actual innocence] requires [P]etitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner has not supported his allegations of constitutional error with new reliable evidence that was not presented at trial. Moreover, the Michigan Court of Appeals determined that the evidence presented at trial was sufficient to establish that Petitioner was guilty as charged of first-degree murder. A miscarriage of justice will not result from a failure to review Petitioner's claims on the merits because it does not appear that the alleged errors resulted in the conviction of one who is actually innocent.
III. Conclusion
Petitioner's state procedural default of failing to raise his claims in the appeal of right bars habeas review of his claims on the merits because he has not shown cause and resulting prejudice or a miscarriage of justice. Accordingly, the Court DISMISSES the habeas corpus petition with prejudice.