Opinion
Case No. 01-10021-BC
February 11, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Michael Thompson, a state inmate presently incarcerated by the Michigan Department of Corrections at its Boyer Road Correctional Facility in Carson City, Michigan, has filed through counsel a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions of various counts of violating Michigan's controlled substance and firearm laws. The Court finds that although at least two of the petitioner's claims appear to be unexhausted, the interests of comity would not be served by compelling exhaustion of a meritless petition. Accordingly, the Court will adjudicate the merits of the claims presented and deny the petition because the state courts' decisions upholding the petitioner's convictions are not contrary to or an unreasonable application of federal law.
I.
In 1995, the petitioner was charged with three narcotics offenses and two firearm offenses. He pleaded guilty in state district court to one count of possession with intent to deliver marijuana. In return, the prosecutor promised to dismiss the other counts and an unrelated narcotics case pending before a different judge. The prosecutor also agreed not to oppose the petitioner's request for a sentence of probation. When the trial court subsequently refused to agree to a sentence of probation, the petitioner moved to enforce the plea agreement. The trial court, however, denied his motion, permitted the petitioner to withdraw his plea of guilt, and the case proceeded to trial.
The Michigan Court of Appeals summarized the trial testimony as follows:
There was evidence that on December 19, 1994, an informant working with the Flint Area Narcotics Group (FANG) arranged to purchase three pounds of marijuana from defendant. The informant had been cooperating with FANG since it raided his home in November 1994. After the informant arranged to purchase the marijuana from defendant for $4200, he contacted Lieutenant Compeau of FANG, informing him of the arrangement. Compeau met with the informant, giving him $4200. The informant left the meeting place and drove to defendant's home. The informant gave defendant the money, and defendant told the informant that he would "take care of the informant, but that he had to go to his safe house and would then be at the informant's house after a short time.
After the informant left defendant's house, a FANG surveillance team followed defendant to a condominium owned by Bethany Gayden. The informant left defendant's house and met Compeau nearby. They drove to another location to talk. The informant told Compeau that he had to go to his house, where defendant would bring the marijuana.
A short time after the informant returned home, defendant drove up in his car and beeped the horn. The informant went out to the car, got in and took a grocery bag that was sitting on the passenger-side floor. He took the bag into his home. After defendant drove away, Compeau arrived at the informant's home. He went inside. The informant pointed out a grocery bag. Campeau opened the bag and saw that it contained marijuana. He made a quick search of the house and left with the bag of marijuana.
After defendant left Gayden's, FANG members searched the condominium with Gayden's consent. The officers found a duffel bag of marijuana and a box containing an electronic scale in a closet in Gayden's spare bedroom and a duffel bag containing a large sum of money, including the buy money in a closet in Gayden's bedroom.
Officers stopped defendant in his car shortly after he left the informant's home around 9 p.m. and arrested him. They found no weapons or drugs on defendant or in his car. FANG members then met for a briefing and obtained a search warrant for defendant's home. The home was searched at midnight, and police seized a number of guns.People v. Thompson, No. 196656, 1998 WL 1988580, at *1 (Mich Ct. App. Dec. 15, 1998).
On May 2, 1996, a Genesee County jury found the petitioner guilty of: (1) possession with intent to deliver marijuana, contrary to Mich. Comp. Laws § 333.7401(2)(c); (2) conspiracy to possess with intent to deliver marijuana, contrary to Mich. Comp. Laws § 750.157a; (3) delivery of marijuana, contrary to Mich. Comp. Laws § 333.7401(2)(c); (4) possession of a firearm by a felon, contrary to Mich. Comp. Laws § 750.224f; and (5) possession of a firearm during the commission of a felony (felony firearm), contrary to Mich. Comp. Laws § 750.227b. The trial court sentenced the petitioner as a fourth habitual offender to two years for the felony firearm conviction followed by concurrent terms of forty to sixty years in prison for being a felon in possession of a firearm and ten to fifteen years in prison for each of the marijuana convictions.
The Michigan Court of Appeals affirmed the petitioner's conviction in the unpublished per curiam opinion cited above. On March 7, 2000, the Michigan Supreme Court denied leave to appeal. See People v. Thompson, 461 Mich. 973, 606 N.W.2d 651 (2000).
The petitioner timely filed his application for the writ of habeas corpus on January 11, 2001. He asserts through counsel that: (1) the prosecutor's failure to abide by his promise to dismiss certain charges constituted a breach of the plea agreement; (2) his rights to due process and the presumption of innocence were violated when the trial court refused to submit the firearm-nexus question to the jury and denied a motion for a directed verdict on the felony firearm charge; (3) he was deprived of due process and his right to a jury trial when the trial court refused to read back testimony; (4) his convictions, which followed forfeiture proceedings, violate the Double Jeopardy Clause; (5) the prosecutor presented evidence that he knew was perjury; (6) the petitioner was deprived of his right to effective assistance of trial counsel, who failed to record the jurors' race; and (7) the sentence for constructively possessing firearms violates the Eighth Amendment.
The respondent, who filed an answer to the habeas petition on August 2, 2001, argues that the petitioner did not exhaust state remedies for two of his claims and that the entire habeas petition should be dismissed. In the alternative, the respondent urges the Court to dismiss the habeas petition as meritless.
II.
The doctrine of exhaustion of state remedies requires state prisoners to fairly present their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842-43 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001). In Michigan, this means that petitioners must raise their claims before both the Michigan Court of Appeals and the Michigan Supreme Court before raising them on habeas review. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D. Mich. 2002). "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted). A claim will be considered "fairly presented" to the state courts only if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relief[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681. Passing references to a denial of "due process" or a "fair trial" in what is otherwise plainly presented as a state-law claim of error does not constitute fair presentation of the issue to the state courts. Ibid.
The petitioner did not raise the first part of his third claim (refusal to submit the firearm-nexus question to the jury) in the Michigan Court of Appeals. He also did not raise his claim about the refusal to read back testimony as a federal constitutional issue in the court of appeals. The petitioner's failure to raise all his claims as federal constitutional issues in the Michigan Court of Appeals is not an absolute bar to consideration of his claims, however, because the claims lack merit, and it would be a waste of time and judicial resources to require exhaustion. Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999); see 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 the merits of the petitioner's claims.
III.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336(1997). Because the petitioner's application was filed after that date, 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 for habeas cases:
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 proceeding.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, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 123 So. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("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."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
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, 529 U.S. at 405-06.
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410-11; see also McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner's first claim alleges a breach of his plea agreement. The plea bargain called for the prosecutor to dismiss two of the marijuana charges, both firearm charges, and an unrelated case before a different judge. The prosecutor also agreed not to oppose a sentence of probation. In return, the petitioner was expected to introduce the police to a major drug dealer.
The petitioner alleges that, although he provided substantial assistance to law enforcement officials, the prosecutor failed to abide by his promise. According to the petitioner, the prosecutor's failure to honor the plea agreement constituted a breach of the agreement for which he is entitled to specific performance. He contends that permitting him to withdraw his plea did not return him to the status quo and that the trial court should have given him the option of agreeing to the dismissal of charges without the request for probation.
The Supreme Court has held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). The petitioner's plea and sentencing agreement was explained at the circuit court arraignment and plea hearing on June 19, 1995. Upon learning that the petitioner was requesting a sentence of probation, the trial court immediately said, "Why do I want to do it with a record like this? Why do I even want to think about this stuff?" Tr. June 19, 1995, at 4.
A bench conference followed, and the trial court stated that it wanted the prosecutor to verify certain details. The trial court then proceeded to take the petitioner's guilty plea, but the court explained that, if it could not go along with the request for probation, the court would allow the petitioner to set aside his plea and go to trial on all five counts. Id. at 8, 13. At no time did the petitioner say that he was willing to be sentenced to imprisonment. On July 31, 1995, the trial court stated that it would not place the petitioner on probation and informed the parties that it was "remanding" the case.
The petitioner subsequently moved to enforce the plea agreement. At a hearing on the motion, the trial court reminded the parties that it was the court, not the prosecution, that had ultimately refused to agree with the petitioner's request for probation. Tr. Mar. 27, 1996, at 4-7. Subsequent testimony taken at the hearing established that the petitioner had introduced law enforcement officials to a large scale drug dealer in Detroit named Reggie, who in turn had agreed to sell narcotics to an undercover officer.
Attorney Samuel Ragnone, who initially represented the petitioner in this case, testified that during a discussion in the judge's chambers the prosecutor had opposed the petitioner's request for probation. Id. at 32-33. Ragnone further testified that the petitioner would have agreed to a prison term instead of probation in return for having the other charges dropped. Id. at 51-52. The trial court reacted to the latter testimony by saying that it had never heard the comment that the petitioner wanted to be sentenced to prison. Id. at 52-53.
The prosecutor then testified that neither he nor a member of his office had opposed a sentence of probation. Id. at 56, 61-62, 68-71. The trial court stated at the conclusion of the hearing that the prosecutor never objected to probation in court and that it was the court's receipt of the pre-sentence report that precluded the court from granting the petitioner's request for probation. Tr. Mar. 28, 1996, at 242. The pre-sentence report contained information on the petitioner's criminal history, which included six prior felony convictions. The report also indicated that there were criminal charges pending against the petitioner in a state district court and that he was on probation in Macomb County, Michigan. Tr. Mar. 28, 1996, at 241-42. The trial court's factual findings are entitled to a presumption of correctness because the petitioner has not rebutted them with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The Michigan Court of Appeals determined on review of the petitioner's claim that the prosecutor did not breach the plea agreement and that the trial court correctly determined that it was not obliged to comply with the sentencing provision of the agreement. Because the record does not support the petitioner's allegation that the prosecutor breached the plea agreement, the state appellate court's decision was based on a reasonable determination of the facts, and its refusal to grant relief did not result in a decision that was contrary to or an unreasonable application of Santobello. See 28 U.S.C. § 2254(d). Accordingly, the petitioner has no right to the writ of habeas corpus on the basis of his first claim.
B.
The petitioner's second claim attacks his felony firearm conviction, alleging that the jury instruction on this count was defective and the evidence of guilt was constitutionally insufficient.
1.
The petitioner initially asserts that the trial court failed to instruct the jury that a nexus must exist between the marijuana and the firearms. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, a federal court may not grant the writ of habeas corpus on the basis that a jury instruction was incorrect under state law. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). The question on habeas review is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
The trial court instructed the jurors at the petitioner's trial that the prosecutor's burden was to prove all the elements of the offenses beyond a reasonable doubt. Tr. May 2, 1996, at 1580. The trial court explained that the offense of felony firearm required proof that (1) the petitioner committed one of the crimes in counts one, two, or three and (2) at the time he committed one of those crimes, he knowingly carried or possessed a firearm. Id. at 1597-98 (emphasis added). The Court believes the instructions as a whole adequately informed the jurors that there had to be a nexus between the firearms and the marijuana in order for the jurors to find the petitioner guilty of felony firearm. The instruction cause no constitutional error.
2.
The petitioner alleges that the trial court should have granted a directed verdict of acquittal on the felony firearm charge because there was insufficient evidence of the connection between the drug offenses and the firearm possession.
The petitioner's sufficiency-of-the-evidence claim requires the Court to ask
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original). The Court must consider this standard through the framework of 28 U.S.C. § 2254(d), Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.), cert. denied, 537 U.S. 1004 (2002), and apply the standard "with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16.
A conviction of felony-firearm requires proof that the defendant carried or possessed a firearm during the commission or attempted commission of a felony. MCL § 750.227b; M.S.A. § 28.424(2); People v. Williams (After Remand), 198 Mich. App. 537, 540-41, 499 N.W.2d 404 (1993). Thus, [a] defendant may attack the sufficiency of the evidence with respect to two elements: possession and time. . . . Possession may be actual or constructive and may be proved by circumstantial evidence. People v. Hill, 433 Mich. 464, 469-71, 446 N.W.2d 140 (1989).People v. Williams, 212 Mich. App. 607, 608-09, 538 N.W.2d 89, 90-91 (1995), overruled on other grounds, People v. Burgenmeyer, 461 Mich. 431, 440, 606 N.W.2d 645, 650 (2000).
"[A] person has constructive possession if there is proximity to the article together with indicia of control. People v. Davis, 101 Mich. App. 198, 300N.W.2d 497 (1980). Put another way, a defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant." Burgenmeyer, 461 Mich. at 438, 606 N.W.2d at 649. The evidence produced at trial established that
[d]uring the search of defendant's home, officers seized several guns. They found a .357 between the mattresses of the bed in the master bedroom and a .32 caliber gun in the master bedroom closet. The officers seized other guns from a locked closet in the second story of defendant's home. Defendant's wife, Bridgit, asserted that she owned the .357 caliber and typically kept it in the locked closet. She said that the officers found the gun on her side of the bed. She also claimed that defendant purchased the .32 caliber for his father, who ultimately gave the gun to her. Bridgit also claimed ownership of the remaining guns.Thompson, 1998 WL 1988580, at *3.
The Michigan Court of Appeals concluded that there was sufficient evidence to support the felony firearm charge. In reaching this conclusion, the court noted that
[t]he informant testified that he went into defendant's house, going into the kitchen and a back room. At defendant's request, he gave defendant the money for the marijuana, and defendant told the informant that he would "take care of him" shortly and that he had to go to his safe house.
While there was no evidence that defendant possessed the marijuana at his home, and no evidence that defendant had either constructive or actual possession of a firearm while he had the marijuana, the delivery transaction began at defendant's home with the informant's payment of $4200 to defendant for the marijuana. Although the offense of delivery was not completed with the exchange of the money, and the exchange of money is not an element of the offense of delivery, in the instant case the acceptance of the money expressly in exchange for the marijuana that would soon be delivered was part of the offense. One who possesses a firearm while collecting payment for a controlled substance that will soon be delivered in exchange for that payment can be convicted of possession of a firearm during the commission of a felony even though the controlled substance and the firearm are never actually possessed at the same time.Id. at *4.
A majority of the Michigan Supreme Court subsequently denied leave to appeal the court of appeals decision. However, Justice Young would have granted leave to appeal, and Justices Cavanagh and Kelly would have peremptorily reversed the petitioner's felony firearm conviction on the ground that there was no evidence that the petitioner committed a felony while in possession of a firearm. Justices Cavanagh and Kelly noted that the weapons that formed the basis for the petitioner's conviction were found at his home, but no drugs were found there and, in their opinion, none of the criminal activity occurred there. The justices also noted that
none of the acts that formed the basis for the three felony drug convictions took place when defendant had reasonable access to the firearms. The deeds satisfying the elements of the conspiracy charge took place at a drug house located some distance from defendant's home. Defendant possessed drugs with the intent to deliver them when he picked up drugs from the drug house and brought them to the informant's house. Defendant delivered drugs when he dropped off the drugs at the informant's house.Thompson, 461 Mich. at 973, 606 N.W.2d at 651. Justices Cavanagh and Kelly concluded that there was "no basis upon which a jury reasonably could have found [the petitioner] guilty of felony-firearm." Ibid. On same day as the Michigan Supreme Court's decision in the petitioner's case, the supreme court decided Burgenmeyer. The supreme court determined in Burgenmeyer that the proper question in felony firearm cases is whether the defendant possessed a firearm at the time he committed a felony, not whether he possessed a firearm at the time of arrest or at the time of the police raid. The supreme court stated that "[a] drug-possession offense can take place over an extended period, during which an offender is variously in proximity to the firearm and at a distance from it. In a case of that sort, the focus would be on the offense dates specified in the information." Burgenmeyer, 461 Mich. at 439, 606 N.W.2d at 649 (footnote omitted). The court went to explain that "[p]ossession of drugs occurs when the defendant has dominion and control over them. It occurs when the defendant knowingly has the power and intention to exercise dominion or control over the drugs either directly or through another person." Id. at 439 n. 12, 606 N.W.2d at 649 n. 12 (citations omitted).
The record indicates that informant Scott Will handed $4,200 to the petitioner in the petitioner's home on December 19, 1994. The money was payment for three pounds of marijuana. The petitioner then told Will that he had to go to a safe house and would stop by Will's home a bit later. The record further establishes that the petitioner then left his home and drove to a condominium. From there, he drove to Scott Will's home where he delivered the marijuana to Will.
A rational juror could have inferred that the petitioner possessed marijuana with the intent to deliver it when he accepted $4,200 for the drugs. The petitioner's comment to Will that he had to go to a safe house indicates that he had dominion and control over the marijuana at the time. A rational juror could have inferred that the petitioner constructively possessed a firearm at the same time, because weapons were accessible to him in the house, and he was in relatively close proximity to them. Consequently, the state court's conclusion that the evidence was sufficient to support the petitioner's felony firearm conviction was a reasonable application of Jackson.
3.
The petitioner argues that Burgenmeyer may not be applied retroactively to his case and that doing so violates the Ex Post Facto Clauses because Burgenmeyer had not been decided when he committed the charged offenses. The Ex Post Facto Clauses prohibit the states and the federal government, respectively, from enacting any ex post facto laws. U.S. Const., Art. I, § 10, cl.l and Art. I, § 9, cl.3. The Clauses proscribe:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.Calder v. Bull, 3 U.S. 386, 390 (1798). Although the Ex Post Facto Clauses are directed to legislatures, the same principle applies to judicial construction of a statute. Bouie v. City of Columbia, 378 U.S. 347, 361-62 (1964).
The petitioner relies primarily on Williams, 212 Mich. App. at 607, 538 N.W.2d at 90, also decided after his offense, for the proposition that there must be a clear nexus between the underlying felony and the felony firearm. The Michigan Supreme Court did not refute this principle in Burgenmeyer. It merely "clarif[ied] the analysis to be employed in similar felony-firearm prosecutions." Burgenmeyer, 461 Mich. at 432, 606 N.W.2d at 646.
The Michigan Supreme Court overruled Williams only to the extent that the Williams panel had concluded that Williams could not be convicted of possessing a firearm because he was not at home when the police found drugs and a firearm. The supreme court explained that the felony firearm statute prohibits possession of a firearm at the time the defendant committed a felony. The court further explained that the panel's error in Williams "lay in its focus on the time of the raid" when Williams was not at home. 461 Mich. at 438, 606 N.W.2d at 649. According to the supreme court, "[t]he fact that the defendant did not possess a firearm at the time of arrest, or at the time of the police raid, is not relevant" under the circumstances present in both Williams and Burgenmeyer, 461 Mich. at 439, 606 N.W.2d at 649.
The language from Burgenmeyer that the petitioner says may not be applied retroactively reads as follows:
Many criminal offenses occur within a short interval of time, and witnesses often see the use or display of a weapon, if one is present. Thus, the inquiry about the element of possession is simplified. In a prosecution for delivery of a controlled substance and for felony-firearm, the question would be whether the offender possessed a firearm at the time of the delivery. When a defendant is prosecuted for possession of a controlled substance, however, the inquiry is potentially more complex. A drug-possession offense can take place over an extended period, during which an offender is variously in proximity to the firearm and at a distance from it. In a case of that sort, the focus would be on the offense dates specified in the information.
Ibid. The quoted footnote indicates that as early as 1991, the Michigan Court of Appeals determined in Sammons that possession of drugs "occurs when the defendant knowingly has the power and intention to exercise dominion or control over the drugs either directly or through another person." Burgenmeyer, 461 Mich. at 439 n. 12, 606 N.W.2d at 649 n. 12.
Possession of drugs occurs when the defendant has dominion and control over them. See People v. Konrad, 449 Mich. 263, 536 N.W.2d 517 (1995). It occurs when the defendant knowingly has the power and intention to exercise dominion or control over the drugs either directly or through another person. See People v. Sammons, 191 Mich. App. 351, 371, 478 N.W.2d 901 (1991). Or, it occurs when the defendant is in proximity to the drugs and has control over them.
Possession of drugs occurs when the defendant has dominion and control over them. See People v. Konrad, 449 Mich. 263, 536 N.W.2d 517 (1995). It occurs when the defendant knowingly has the power and intention to exercise dominion or control over the drugs either directly or through another person. See People v. Sammons, 191 Mich. App. 351, 371, 478 N.W.2d 901 (1991). Or, it occurs when the defendant is in proximity to the drugs and has control over them.
The holding in Burgenmeyer does not expand the fundamental requirement that there be a nexus between the felony and the possession of a firearm. Burgenmeyer also does not break with state law decisions stating that possession of drugs can occur when the defendant exercises dominion or control over the drugs either directly or through another person. See Sammons, 191 Mich. App. at 371, 478 N.W.2d at 911. Burgenmeyer does not make previously innocent conduct a crime, nor does it change the punishment, alter the rules of evidence to convict the offender, or make a crime greater than it was. The Court concludes that application of Burgenmeyer does not amount to a violation of the applicable Ex Post Facto Clauses, and that the petitioner is not entitled to habeas corpus relief on the basis of his second claim.
C.
The petitioner alleges next that he was deprived of due process and his right to a trial by jury when the trial court refused to read back testimony that the jury needed to reach its verdict. The record does not support the petitioner's allegation that the trial court refused to read back testimony. As the Michigan Court of Appeals explained,
[d]uring deliberations, the jury requested a transcript of the informant's testimony. The trial court observed that a transcript had not yet been prepared, but that the court would have the reporter replay the testimony for the jury. The court asked the reporter to estimate the length of the testimony. The reporter replied that she had five tapes of the testimony, and the court told the jury that the reporter estimated that the testimony was four hours, fifteen minutes long. The court gave the jury the option of hearing the tapes and requested that the jury go back into the jury room, instructing them as follows:
Now, would you like to, I don't want you to say a word, I think you should all go back in there and then you should write me another note and say yes you wanna hear it or no you don't wanna hear it or whatever you want me to do, tell me and we will proceed to accommodate you as best we can.
The jury replied that it did not want the testimony "at this time" and returned its verdict 2 1/2 hours later, without ever hearing a play-back of the testimony or again requesting it.Thompson, 1998 WL 1988580, at *8.
The trial court did not reject outright the jurors' request; rather, it stated that it would attempt to accommodate the jurors' request if the jurors stated in another note that they still wanted to hear the testimony. Moreover, the requested testimony was not key to the petitioner's defense and it was not exculpatory. Under similar circumstances the United States Court of Appeals for the Sixth Circuit has concluded that habeas corpus relief was not warranted. See Spalla v. Foltz, 788 F.2d 400, 405 (6th Cir. 1986).
Furthermore, the petitioner has not cited any Supreme Court decision holding that similar actions by a trial court in response to a like juror request abridged an accused's rights under the Due Process Clause. The Court concludes that the petitioner is not entitled to the writ of habeas corpus on the basis of his third claim. 28 U.S.C. § 2254(d).
D.
The petitioner alleges that the State of Michigan seized personal property from him during forfeiture proceedings. He claims that his subsequent criminal conviction violated the Double Jeopardy Clause.
The Double Jeopardy Clause provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V. The Clause "is applicable to the States through the Fourteenth Amendment." Benton v. Maryland, 395 U.S. 784, 787 (1969). Among other things, it protects against multiple punishments for the same offense. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 307 (1984).
The Supreme Court has held that "in rem civil forfeitures are neither `punishment' nor criminal for purposes of the Double Jeopardy Clause." United States v. Ursery, 518 U.S. 267, 292 (1996). The petitioner contends that Ursery is distinguishable because there was no nexus in that case between the criminal acts and many of the forfeited items.
The State may have been required to show a substantial connection between the crimes and the forfeited items, when it initiated forfeiture proceedings against the petitioner's property. However, when engaging in a double jeopardy analysis, Ursery requires the Court to ask only (1) whether the legislature intended the forfeiture proceedings to be criminal or civil, and (2) whether the proceedings were so punitive that they cannot be viewed as civil in nature. Id. at 288. Forfeitures in Michigan are intended to be civil proceedings. See People v. Hellis, 211 Mich. App. 634, 645, 536 N.W.2d 587, 592 (1995) (referring to the legislative intent that forfeiture be remedial or civil and not punitive); see also People v. Acoff, 220 Mich. App. 396, 398 n. 1, 559 N.W.2d 103, 104 n. 1 (1996) (stating that Michigan's forfeiture law is modeled after the statute at issue in Ursery).
The items seized from the petitioner were cash, his car, jewelry, firearms, and three paychecks. The petitioner has not alleged the monetary value of these items, and their value could hardly be considered punitive when compared to his sentence. The Court therefore concludes that the petitioner has not presented the clearest proof that the forfeiture proceeding was so punitive as to render it criminal. Therefore, the state appellate court's conclusion that no violation of the Double Jeopardy Clause occurred was not contrary to or an unreasonable application of Ursery. The petitioner is not entitled to the writ of habeas corpus on the basis of his fourth claim.
E.
The petitioner's fifth claim alleges that the prosecutor violated the petitioner's right to due process by presenting perjured testimony. The alleged perjury came from Crystal Will, the estranged wife of the informant in this case, Scott Will. Defense counsel presented Crystal Will as a character witness. However, on cross-examination by the prosecutor, Crystal Will testified that she observed her husband enter the petitioner's car and return to the house with a bag of marijuana. Scott Will had testified earlier in the trial that he did not believe anyone else was home when he brought the marijuana into the house.
The petitioner contends that the prosecutor must have known Crystal Will's testimony was untruthful because the prosecutor did not endorse Crystal as a res gestae witness. The petitioner asserts that the error was not harmless because Crystal's unexpected testimony implicated him and because he was unprepared for it.
"[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice.'" Giglio v. United States, 405 U.S. 150, 153 (1972). "A new trial is required if `the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury. . . .'" Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). To prevail on his claim, the petitioner "must show that the statements were material, that they were actually false, and that the prosecution knew they were false." United States v. Hawkins, 969 F.2d 169, 175 (6th Cir. 1992).
The petitioner's culpability did not depend on Crystal Will's testimony because she merely reiterated what the jury had already learned from Scott Will and the police officer who monitored the delivery. Nor can it be said that Crystal Will's testimony was false and that the prosecution knew it was false. Both Scott Will and Crystal Will expressed some confusion about the actual date of the alleged transaction because Scott had been involved as an informant in other controlled transactions monitored by the police. Although Scott Will testified that he did not think anyone else was at home when he brought the marijuana into the house, he was not absolutely certain. Tr. Apr. 25, 1996, at 566-67.
The state court of appeals concluded that the prosecutor did not knowingly present false testimony. Bases on the record presented, it cannot be said that Crystal Will's testimony was material, that it constituted perjury, and that the prosecutor knew it was perjury. The state court's adjudication of the petitioner's claim did not result in a decision that was contrary to or an unreasonable application of Supreme Court precedent, and the petitioner is not entitled to habeas relief on the basis of his fifth claim.
F.
The petitioner's sixth claim alleges that he was deprived of his right to the effective assistance of trial counsel because his trial attorney failed to record the racial composition of the jury and to object to the prosecutor's peremptory strikes, which the petitioner claims were based on race. The petitioner, who is an African-American, alleges that, because there is no record of the racial makeup of the jury, he has been deprived of an opportunity to challenge the prosecutor's race-based strikes, which eliminated black people from the jury. See Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the prosecution's exercise of peremptory challenges based on race). The Michigan Court of Appeals determined that nothing in the record demonstrated that defense counsel's performance fell below an objective standard of reasonableness or that counsel's representation prejudiced the petitioner to the extent that it deprived him of a fair trial.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test for determining whether a petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial. . . ." Ibid. The Supreme Court emphasized that, when assessing counsel's performance, the reviewing court should afford counsel great deference. Id. at 689.
The petitioner, who presumably was present throughout the trial, has not himself characterized the composition of the venire or the jury. Yet he claims that the prosecutor exercised peremptory challenges based on race to eliminate black venirepersons from the jury.
The only time the topic of race arose during voir dire was when the trial court noted that the petitioner is black. The trial court then asked the prospective jurors whether they could be fair. No one expressed any reservations about being fair, and no one claimed to be unable to set aside any bias or prejudice. Tr. Apr. 23, 1996, at 56-57.
Whether the prosecutor exercised any peremptory challenges on the basis of race and eliminated African Americans from the jury is purely speculative. The petitioner has not provided the Court with any facts to support his allegation that the prosecutor acted improperly or that defense counsel's omissions amounted to deficient performance. "[E]rrors of tactics or omission do not necessarily mean that counsel has functioned in a constitutionally deficient manner." Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). Therefore, the state court's decision rejecting the petitioner's claim was not contrary to or an unreasonable application of Strickland.
G.
The petitioner's seventh and final claim alleges that his minimum sentence of forty years for constructively possessing firearms violates the Eighth Amendment's protection against cruel and unusual punishment. The petitioner contends that pursuant to Solem v. Helm, 463 U.S. 277(1983), a sentence which is significantly disproportionate to the crime violates the Eighth Amendment to the United States Constitution.A habeas petitioner who seeks to challenge the severity of a prison sentence on Eight Amendment grounds faces a formidable challenge. He may obtain relief only by demonstrating that a state court decision contravened or misapplied "clearly established" Supreme Court precedent. However, the Supreme Court recently acknowledged "that our precedents in this area have not been a model of clarity." Lockyer v. Andrade, 538 U.S. 63, 72 (2003). "Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Ibid. Thus, the Supreme Court declared that the general applicability of the proportionality standard to term-of-years sentences was clearly established, but confessed a lack of clarity as to the factors lower courts should consider in making that determination. Ibid. The Court concluded that "the only relevant clearly established law amenable to the `contrary to' or `unreasonable application of framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Ibid.
In Lockyer, the Supreme Court reversed the Ninth Circuit's grant of a writ of habeas corpus on the ground that two twenty-five-year-to-life sentences imposed under California's "three strikes" law, where the triggering felony was the theft of $150 worth of video tapes, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court noted that the "thicket" created by its jurisprudence consisted primarily of its decisions in Solem v. Helm, supra, Harmelin v. Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445 U.S. 263 (1980). The California state court observed that the proportionality rule set forth in Solem was cast into doubt by Harmelin, and proceeded to analyze Andrade's sentence under the approach taken in Rummel, where the Supreme Court rejected a claim that a life sentence imposed under Texas' recidivist statute was grossly disproportionate to the theft felonies that formed the predicate for the sentence. The California court concluded that Andrade's sentence was not disproportionate. The Supreme Court held that this decision was not contrary to or an objectively unreasonable application of federal law that was clearly established by the Supreme Court. Lockyer, 538 U.S. at 7 2-77.
A plurality of the Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin, 501 U.S. at 965. As the Supreme Court observed in Lockyer, it is generally recognized after Harmelin that the Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only an extreme disparity between crime and sentence, that is, sentences that are "grossly disproportionate" to the crime. Id. at 1001 (Kennedy, J., concurring); Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001), cert. denied, 535 U.S. 1031 (2002) (citing Coker v. Georgia, 433 U.S. 584, 592 (1977)); United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
"Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel, 445 U.S. at 272. Rummel was convicted of obtaining $120.75 by false pretenses, a crime punishable by at least two years, but not more than ten years in prison. He was sentenced as a recidivist to life imprisonment with the possibility of parole. His two prior felonies consisted of fraudulent use of a credit card to obtain $80 worth of goods and services, a felony punishable by two to ten years in prison; and passing a forged check for $28.36, a crime punishable by two to five years in prison. The Supreme Court held that Rummel's life sentence under the state recidivist statute did not constitute cruel and unusual punishment. In Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for possession of more than 650 grams of cocaine for an offender with no prior felony convictions.
The Supreme Court overturned a life sentence in Solem on the ground that it was significantly disproportionate to Helm's crime and therefore prohibited by the Eighth Amendment. However, Helm had been sentenced to life imprisonment without the possibility of parole for uttering a "no account" check for $100, and his prior felonies also were minor, nonviolent crimes. By contrast, the Supreme Court recently reaffirmed Rummel and found constitutionally sufficient a sentence of twenty-five years to life imposed upon a fifth felony conviction. See Ewing v. California, 538 U.S. 11, 24-31 (2003).
The state court of appeals did not refer to any federal precedent in considering the petitioner's constitutional challenge to his sentence. However, the state appellate court did acknowledge that a rule of proportionality applied in the case, and evaluated the sentence in light of the petitioner's prior record, since the enhancement that applied was due to the petitioner's habitual offender status.
While we agree that defendant's forty to sixty year sentence is quite severe and would likely have opted for a lesser minimum term ourselves, we are unable to conclude that the trial court abused its discretion in imposing such a lengthy term. Defendant had been convicted three times of cocaine-related offenses, once of conspiracy to bring contraband into prison, and once of possession of a fraudulent financial transaction device. The court noted that his first offense was in 1982 and that he had had continuous involvement with the criminal justice system for fourteen years at the time of sentencing. The court further observed that many of the offenses were committed while defendant was on probation, parole or in prison, and that the purpose of the habitual offender provisions "is to provide for a longer sentence where a defendant has shown a persistent commission of crime and indifference to the law."Thompson, 1998 WL 1988580, at *9.
This Court cannot conclude that the state appellate court's decision on this issue was contrary to federal law because of the recognition of a proportionality rule. Nor is the decision an objectively unreasonable application of Supreme Court precedent, especially in light of Lockyer. The petitioner was sentenced as a fourth habitual offender to a prison term of forty to sixty years for being a felon in possession of a firearm. His criminal history includes six prior felonies. One of the prior felonies involved possession of cocaine and another felony consisted of conspiracy to deliver cocaine. The five offenses for which the petitioner was sentenced in this case were committed while the petitioner was on probation. The offenses involved a large amount of marijuana and several weapons. The trial court noted that for the previous fourteen years, the petitioner was either on bond, on probation, under sentence, or on parole, and that he was still involved in illicit drugs when he was arrested.
The challenged sentence fell within the maximum sentence set by state law, and "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment.'" United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995) (citation omitted) (quoted with approval in Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)). "As long as the sentence remains within the statutory limits, trial courts have historically been given wide discretion in determining `the type and extent of punishment for convicted defendants. '"Austin, 213 F.3d at 301 (quoting Williams v. New York, 337 U.S. 241, 245 (1949)). Furthermore, given the petitioner's lengthy criminal history, the State "was entitled to place upon [the petitioner] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Ewing, 538 U.S. at 30 (quoting Rummel, 445 U.S. at 284)).
The Court concludes that the state court's refusal to grant relief did not result in a decision that was contrary to, or an unreasonable application of Rummel or Harmelin, and that the petitioner's case is distinguishable from Solem. The petitioner is not entitled to habeas relief on the basis of his sentencing claim.
IV.
The decision of the Michigan Court of Appeals affirming the petitioner's convictions and sentence was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d).
Accordingly, it is ORDERED that the petition for writ of habeas corpus [dkt #1] is DENIED.