Opinion
Civil No. 00-CV-74289-DT.
August 24, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
John Thompson, ("Petitioner"), presently confined at the Baraga Maximum Correctional Facility in Baraga, Michigan, seeks the issuance of a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In his pro se Application, Petitioner challenges his conviction on one count of breaking and entering an occupied dwelling with intent to commit larceny, M.C.L.A. 750.110; M.S.A. 28.305; and being a fourth felony habitual offender, M.C.L.A. 769.12; M.S.A. 28.1084. For the reasons stated below, Petitioner's Application for Writ of Habeas Corpus is DENIED.
I. BACKGROUND
Petitioner's conviction arose out of an incident which occurred in Canton Township, Michigan on October 15, 1993. Following a jury trial in the Detroit Recorder's Court, Petitioner was found guilty as charged.
Eric Gunung testified that he worked as a maintenance man at an apartment complex known as The Crossings in Canton Township, Michigan. On the afternoon of October 15, 1993, Gunung was working with another maintenance man named Rick Ramsden. Gunung went to Building 8554 to leave a note on one of the tenant's doors that they were going to repair her roof. When he walked into the building, Gunung noticed the door to an apartment slam in front of him and saw the tail end of a black leather coat going into the apartment. As Gunung walked past this door, he noticed that the door was smashed and cracked and it looked liked somebody had pried the door opened. (Trial Tr., 05/04/94, pp. 13-16, 19-20). Gunung ran back outside and told Ramsden to grab two radios that the men had inside the truck and asked him to go around to the side of the building where the windows and door wall were located. Gunung initially planned to go back inside the building but decided to go around to one of the other entrances to the apartment building. ( Id. at p. 16). When Gunung came back outside, he observed Petitioner standing outside a door to the apartment building wearing a black leather coat. Petitioner had been standing on the grass about twenty feet away from the window of the apartment that had been broken into. Gunung asked petitioner what he was doing and whether he lived on the property. Petitioner told Gunung that he was doing nothing and asked Gunung to leave him alone. Petitioner then began running away. Gunung chased after Petitioner through the complex, at some point being joined in the chase by Ramsden. Gunung chased Petitioner all the way to the apartment complex office. When Gunung arrived at the office, Petitioner was telling the complex supervisor that he was only at the apartment building to buy a Cadillac and had a piece of paper with the owner's number on it. The police were called and Petitioner was arrested. Gunung went back to the apartment complex where the break-in had taken place and found a large black screwdriver right by the steps in the corner of the building where he had observed Petitioner standing. Gunung indicated that the screen of the window of the apartment that had been broken into had been completely knocked out. ( Id. at pp. 20-26). Gunung denied seeing anyone else in the complex during this incident ( Id. at pp. 28-29).
Kenneth Kuhfeldt lived in the apartment that had been broken into. On October 15, 1993, Kuhlfeldt returned from work to discover that the door jam to his apartment had been replaced and the window screen was out in his bedroom. Kuhlfeldt discovered that cologne, jewelry, and money was missing from his apartment. ( Id. at pp. 60-62). Kuhlfeldt described the missing jewelry as being a [Detroit] Piston's ring, an initial ring, and a ring with an oval. ( Id. at p. 65).
Richard Ramsden also worked as a maintenance man at The Crossings in Canton Township, Michigan. On October 15, 1993, he was helping Eric Gunung repair roofs at the apartment complex. When they arrived at the apartment that they were going to repair, Ramsden stayed inside the truck while Gunung went inside. Gunung came out shortly thereafter and told him that there was an intruder in the building. Ramsden grabbed a radio and headed for the north side of the building. As Ramsden walked towards the doorway, he thought he saw somebody in the hallway inside and informed Gunung that he had seen the intruder. Ramsden ran to the other side of the building and Gunung began to go inside. Ramsden told another maintenance man to watch the side of the building, before turning to see Petitioner, who was wearing a black leather coat and standing at the end of the building. Ramsden had not seen that Petitioner walking in the area that day. Ramsden used his radio to contact the office and tell them to call the police. ( Id. at pp. 81-85).
When Ramsden turned around after communicating with the office, Petitioner had already taken off running. Ramsden began chasing petitioner through a parking lot. Petitioner reached into his pocket and threw some items onto the roof of the carport. Ramsden radioed the office and told them that Petitioner had thrown some items onto the roof of the carport. Ramsden stayed at the carport to make sure that no one removed these items. ( Id. at pp. 85-86).
Officer Michael Tulip testified that he worked for the Canton Township Police. On October 15, 1993, Officer Tulip responded to a call involving a breaking and entering. Officer Tulip arrived at the apartment complex office and spoke with Petitioner. Officer Tulip confiscated Petitioner's jacket and wallet from him. Officer Tulip also found a bottle of cologne that had been stuck in the bottom of a plant in the office. ( Id. at pp. 116-119). Officer Tulip also photographed the property found on top of the carport roof and collected it as evidence. Officer Tulip also confiscated a ring off of Petitioner that was People's Exhibit 15. ( Id. at p. 120). Kenneth Kuhfeldt had identified the ring in People's Exhibit 15 as being his initial ring that had been taken during the break-in of his apartment. ( Id. at p. 65). Officer Tulip indicated that he recovered one hundred and fifty ($150.00) dollars from Petitioner's wallet and another five ($5.00) dollars off of the carport roof. ( Id. at pp. 123-124).
Outside the presence of the jury, a hearing was conducted on the admissibility of a statement allegedly made by Petitioner to Detective Richard Pomorski of the Canton Police. The assistant prosecutor informed the court that Petitioner had made a statement to Pomorski in which he told him, "I can't tell you I did it, because I would be going to jail for a long time". When the trial court asked the prosecutor if that was what Petitioner had said, the assistant prosecutor replied, "Those are his exact words. That's exactly what we have on the recording." ( Id. at p. 136). Petitioner also purportedly made a statement to Pomorski that it was not his MO [modus operandi] to leave his fingerprints at the crime scene. ( Id. at p. 137). Petitioner's defense attorney informed the court that although a discovery order had been signed in this case, he had not received any reports from Detective Pomorski indicating that Petitioner had made these statements. ( Id. at pp. 137-138).
At this hearing, Detective Pomorski testified that he advised Petitioner of his constitutional rights prior to taking any statements from him. Pomorski denied that Petitioner told him that he didn't want to speak to him and wished to speak with an attorney. Pomorski acknowledged that Petitioner told him that he couldn't admit to being involved in this case, because he would go to jail for a long time if he did. Pomorski indicated that the interview lasted two hours, during which time, he and Petitioner discussed other break-ins that Petitioner was suspected of committing. ( Id. at pp. 144-146). When asked if he recorded any of the conversations that he had with Petitioner, Pomorski admitted bringing a note pad to the interview, but stated that he failed to write anything down because he "got carried away with this conversation." ( Id. at p. 146). Pomorski reiterated that Petitioner never asked him to stop the interrogation, but was very willing to talk with him. Pomorski admitted that Petitioner did not confess to this break-in. ( Id. at p. 148).
Petitioner also testified at this hearing. Petitioner admitted that Detective Pomorski advised him of his constitutional rights. Petitioner claimed that after being advised of his constitutional rights, he informed Pomorski that he didn't want to make a statement without consulting an attorney. Petitioner acknowledged telling Pomorski that "I can't tell you I did it because I would be going to jail for a long time". Petitioner also admitted telling Pomorski that he wouldn't find his fingerprints inside the apartment. ( Id. at pp. 151-152). After hearing the testimony, the trial court ruled that Petitioner's statements to Detective Pomorski were admissible. ( Id. at p. 156).
In front of the jury, Detective Pomorski testified he had been the officer assigned to investigate a series of break-ins that had been taking place at The Crossings in Canton Townhip, Michigan. (Trial Tr., 05/10/94, p. 4). Detective Pomorski spoke with Petitioner at 7:15 p.m. that night. Prior to talking with Petitioner, Detective Pomorski advised him of his constitutional rights. ( Id. at pp. 5-8). Petitioner was "adamant" that the maintenance man had not seen him go into the apartment and kept saying, "He did not see me going into the apartment." Petitioner also told Pomorski that it "wouldn't be his MO [modus operandi] to find fingerprints". When Pomorski asked Petitioner if he had broken into the apartment, Petitioner told him, "I can't say I did it, because I would go to jail for a long time." ( Id. at pp. 9-12).
On cross-examination, Pomorski admitted that he made no mention in his written report about the comments that he testified that Petitioner had made. ( Id. at pp. 18-19). When asked how it was that he could recall specific statements made by Petitioner which he had not written down, Detective Pomorski indicated, "I know Mr. Thompson well. And I remember specific things about Mr. Thompson based upon 14 years in my career." ( Id. at p. 20). During redirect examination, when the prosecutor asked Detective Pomorski when the burglaries on the apartment complex had stopped, the trial court directed the detective not to answer the question. ( Id. at p. 28). Later, when defense counsel asked on re-cross examination, in regards to the failure to dust for fingerprints, whether the police would fail to conduct a test if a defendant or counsel asked the police not to perform it, the detective answered, "We're talking about you and we're talking about Mr. Thompson, and I know Mr. Thompson very well." The trial court interjected and told the detective to answer only the question and admonished him not to add anything. ( Id. at p. 33).
Defense counsel moved for a mistrial based on Detective Pomorski's testimony that he knew Petitioner well. ( Id. at pp. 38-39). The trial court declined to grant a mistrial, noting first that it had cut off Detective Pomorski from answering when he began to give his second improper response. The court offered to give a cautionary instruction to the jury, but defense counsel declined, agreeing with the trial court that such an instruction might actually emphasize the testimony to the jury. ( Id. at pp. 45-47).
Petitioner testified on his own behalf Petitioner indicated that he was at the apartment complex to look at an automobile that was for sale when some maintenance men accused him of breaking into an apartment. Petitioner testified that he ran because he was afraid that the men were armed with guns. Petitioner testified that he ran to the apartment complex office and told someone to call the police, because he was being wrongfully accused of a crime. ( Id. at pp. 49-55). Petitioner admitted wearing jewelry at the time of his arrest, but insisted that none of it came from the apartment that had been broken into. ( Id. at pp. 57-60). On cross-examination, the prosecutor asked Petitioner if one of the items he was wearing at the time of his arrest was an Elgin watch, to which Petitioner responded affirmatively. ( Id. at pp. 89-90).
Outside the jury's presence, the prosecutor stated that he wanted to introduce impeachment evidence that the Elgin watch had been taken during another break-in at the apartment complex. Defense counsel objected, stating that such evidence would involve a collateral matter and be more prejudicial than probative. ( Id. at pp. 89-104). The court ruled that it would admit this evidence because Petitioner's statement that the watch was his was inconsistent with him implicating himself in another break-in which this watch was taken. ( Id. at pp. 109-112).
In front of the jury, Detective Pomorski indicated that during his interrogation of Petitioner, Petitioner agreed to clear up unsolved breaking and entering cases in the apartment complex. Detective Pomorski testified that Petitioner was wearing an Elgin watch during the interrogation and that this watch was later identified by its owner as having been taken from his apartment during a breaking and entering. ( Id. at pp. 119-122).
After his conviction, Petitioner filed his Claim of Appeal. Petitioner's appointed appellate counsel raised the following three issues in her Brief on Appeal:
I. Defendant was denied his due process right to a fair trial when the court failed to declare a mistrial after a police officer, in defiance of the court's order, suggested to the jury that defendant was a criminal by testifying that he knew defendant very well due to police contact over a period of fourteen years, and when the prosecutor emphasized this testimony in his closing argument.
II. Defendant was denied his due process right to a fair trial when the court allowed the prosecution to impeach the defendant's credibility on a collateral matter by introducing evidence of defendant's admission of guilt to other breakings and enterings with which he had not been charged.
III. Defendant was denied his due process right to a fair trial by the prosecutor's attempt to shift the burden of proof to defendant by repeatedly suggesting to the jury that defendant had not acted to prove his innocence.
Petitioner's conviction was affirmed on appeal. People v. Thompson, 177896 (Mich.Ct.App. September 17, 1996); lv. den. 455 Mich. 858; 567 N.W.2d 247 (1997). Petitioner thereafter filed a Motion for Relief from Judgment pursuant to M.C.R. 6.500, et. seq., in which he raised the five claims that he now raises with this Court. ( See, infra). The trial court denied the motion on the merits. People v. Thompson, 93-011914 (Wayne County Circuit Court, August 11, 1998). Both the Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner Leave to Appeal on the ground that Petitioner had failed to meet the burden of establishing entitlement to relief under M.C.R 6.508(D). People v. Thompson, 217083 (Mich.Ct.App. October 27, 1999); lv. den. 462 Mich. 870; 616 N.W.2d 689 (2000). Petitioner has now filed an Application for a Writ of Habeas Corpus, seeking habeas relief on the following grounds:
I. Defendant was denied his due process right to a fair trial when the prosecution withheld the recording of defendant's statements to police in violation of [the] discovery order and the trial judge permitted such withheld statements to be presented to the jury by a police officer's editorialized version of them.
II. Defendant was denied [his] due process right to a fair trial when the prosecutor knowingly presented false testimony of the chief investigator before the jury and when the prosecutor engaged in deliberate deception to the court.
III. Denial of counsel during interrogation and subsequent admission of alleged statements obtained therein did not constitute a waiver and violated defendant's right to counsel, right against self incrimination, and due process of law.
IV. The cumulative effect of errors was prejudicial, violated due process of law, and denied defendant a fair trial.
V. Defendant was denied effective assistance of counsel and due process of law.
Respondent has filed an Answer in Opposition to the Petition for Writ of Habeas Corpus, which is construed as a Motion to Dismiss on the basis that the claims contained therein are barred by procedural default. See Alvarez v. Straub, 64 F. Supp.2d 686, 689 (E.D. Mich. 1999) (Rosen, J.).
II. DISCUSSION
Respondent contends that Petitioner's claims are procedurally defaulted because Petitioner failed to raise these issues in his appeal of right, raising them instead for the first time in his postconviction motion for relief from judgment. Although the trial court rejected Petitioner's claims on the merits, both the Michigan Court of Appeals and Michigan Supreme Court denied Petitioner leave to appeal on the ground that Petitioner had failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).
MCR 6.508(D) is the "[s]tate analog to federal exhaustion. In other words, the court rule requires that an appellant seeking additional review of a claim `which could have been raised on appeal from the conviction and sentence or in a prior motion' must demonstrate good cause for failure to raise such grounds on appeal, and actual prejudice caused from the irregularities to support the claim for relief" Gonzales v. Elo, 233 F.3d 348, 353 (6th Cir. 2000); cert den. 121 S.Ct. 1621 (2001). In the present case, the Michigan Supreme Court, the last court to render a judgment in this case, based its decision to deny Petitioner's Application for Leave to Appeal the trial court's denial of his Motion for Relief from Judgment under M.C.R. 6.508(D). The Sixth Circuit has recently held that the Michigan Supreme Court's brief statement that petitioner failed to "meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)" was sufficient to constitute a procedural bar to federal habeas relief in that it was based on an independent and adequate state procedural rule. Simpson v. Jones, 238 F.3d 399, 407-408 (6th Cir. 2000). The Sixth Circuit also rejected the idea that this brief form order was an unexplained order that could not serve to procedurally default a habeas petitioner. Id. at p. 408. This Court concludes that the Michigan Supreme Court's form order denying Petitioner relief under M.C.R. 6.508(D) constitutes an adequate procedural bar to federal habeas relief.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751 (1991). If a petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
With respect to his first, second, third and fourth claims, Petitioner claims that he can establish cause to excuse his procedural default because of the ineffective assistance of appellate counsel, which he also raises as an independent claim. (Claim # V). Ineffective assistance of counsel may be cause for procedural default. Murray v. Carrier, 477 U.S. at 488; Richardson v. Elo, 974 F. Supp. 1100, 1104 (E.D. Mich. 1997) (Gadola, J.). Not just any deficiency in counsel's performance will excuse a procedural default, however; the assistance must have been so ineffective as to violate the Federal Constitution. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Attorney error that falls short of constitutional ineffective assistance of counsel does not constitute cause to excuse a procedural default. Bruton v. Phillips, 64 F. Supp.2d 669, 682-683 (E.D. Mich. 1999) (Gadola, J.). If petitioner's ineffective assistance of appellate counsel claim lacks merit, it cannot constitute cause to excuse his default. Sherill v. Hargett, 184 F.3d 1172, 1176 (10th Cir. 1999).
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, court appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). An attorney's failure to present a nonmeritorious issue on appeal does not constitute ineffective assistance of counsel. Daniel v. Overton, 845 F. Supp. 1170, 1176 (E.D. Mich. 1994) (Gadola, J.).
A review of Petitioner's claims, which will be discussed below, reveals that they are without merit. Appellate counsel was therefore not ineffective for failing to raise them in Petitioner's appeal of right. Petitioner has failed to establish cause to excuse his default. Moreover, even assuming that Petitioner has established cause for his default, he is unable to satisfy the prejudice prong of the exception to the procedural default rule because his claims are without merit. The cause and prejudice exception is conjunctive, requiring proof of both cause and prejudice. Cosme v. Elo, 2000 WL 246592, * 3 (ED. Mich. 2000) (Cohn, J.) (citing to Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)). Lastly, Petitioner has failed to offer this Court new reliable evidence of innocence that was not presented at trial which would excuse his default. Schlup v. Delo, 513 U.S. at 324; Welch v. Burke, 49 F. Supp.2d 992, 1007 (E.D. Mich. 1999) (Cleland, J.). Petitioner's claims are therefore procedurally defaulted.
A. Claims # 1 and # 2. The exculpatory evidence and perjured evidence claims.
Petitioner's first two claims will be discussed together because they are interrelated. Petitioner first claims that the prosecutor withheld evidence in the form of a recording of his conversation with Detective Pomorski. Petitioner claims that he could have used this recording to impeach Detective Pomorski, both during the hearing on the admissibility of his statement, as well as at trial.
Suppression by the prosecution of evidence favorable to the defendant upon request violates due process, where the evidence is material to either guilt or punishment of the defendant, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). To establish a Brady violation, a defendant has the burden of establishing that the prosecution suppressed evidence, that such evidence was favorable to the defendant, and that the evidence was material. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000).
Petitioner's Brady claim must fail for several reasons. First, Petitioner has failed to prove that any recording of his statement to Detective Pomorski existed. Although the prosecutor stated, in response to the trial court's question, "That's exactly what we have on the recording", Detective Pomorski indicated both at the hearing and at trial that he never wrote down or recorded Petitioner's statements. Petitioner, in fact, appears to undermine his first claim in his second claim, when he alleges that the prosecutor falsely claimed that a recording of Petitioner's statements existed. Thus, it is unclear whether the prosecutor ever suppressed any evidence. Secondly, other than the dispute over whether Petitioner requested to speak with an attorney, Petitioner does not challenge the veracity of the statements that he made to Detective Pomorski. In fact, Petitioner admitted at the suppression hearing that he told Detective Pomorski that "I can't tell you I did it because I would be going to jail for a long time" and that he wouldn't find his fingerprints inside the apartment. Because Petitioner does not dispute the accuracy of these statements, he has failed to show how he would be able to impeach Detective Pomorski's credibility with respect to these statements. Evidence is not exculpatory or impeaching under Brady where it does not contradict any testimony offered by the witness at trial. See Thompson v. Cain, 161 F.3d 802, 807 (5th Cir. 1998).
Petitioner, however, also appears to argue that production of the recording of his interrogation with Detective Pomorski would have aided in the suppression of these statements, because it would have supported his claim that he had requested to speak with an attorney prior to the interrogation. As already mentioned, Petitioner has not even demonstrated that such a tape recording exists or existed. Assuming that it did, and assuming that such a tape recording could have led to the suppression of Petitioner's statements to Detective Pomorski, Petitioner is nonetheless unable to establish a Brady claim. A Brady violation is grounds for setting aside a conviction or a sentence in a habeas proceeding only if the failure to disclose the relevant material "undermines confidence in the verdict because there is a reasonable possibility that there would have been a different result had the evidence been disclosed." Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Stated differently, there never is a real "Brady" violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Coleman v. Mitchell, 244 F.3d 533, 541 (6th Cir. 2001) (quoting Strickler, 527 U.S. at 281).
In Nuckols v. Gibson, 233 F.3d 1261, 1266 (10th Cir. 2000), the Tenth Circuit held that the state's failure to disclose to a capital murder defendant that the deputy sheriff who allegedly induced defendant's confession had been implicated in thefts at the sheriffs office, and that the deputy had participated in the sale of guns to fund a separate murder with which defendant was charged in a separate prosecution, constituted a Brady violation, and thus warranted habeas relief. In so ruling, the Tenth Circuit ruled that the withheld statements were material, since the deputy's credibility was important to establishing the admissibility of defendant's confession, which was the only evidence linking defendant to the murder at issue. In noting that petitioner's confession was the sole evidence in the case, the Tenth Circuit noted that it was "critical" for the state to establish the admissibility of the confession, but its admissibility hinged on proof that petitioner initiated the interview which produced his confession. If this was not the case, the confession would had to have been suppressed. The only witnesses on this issue were the deputy and petitioner, each of whom negated the others testimony. If the deputy's testimony that petitioner initiated the interrogation were impeached, "the entire support for the State's case would have been significantly undermined, if not destroyed altogether." Nuckols, 233 F.3d at 1266.
By contrast, in the present case, even if Detective Pomorski's testimony that Petitioner had not requested an attorney had been successfully impeached, there is no reason to believe that the prosecution's case would have been significantly undermined, let alone destroyed. There was ample evidence from the witnesses to the break-in to sustain Petitioner's conviction, even in the absence of these statements made to Detective Pomorski. Where a habeas petitioner cannot show that there is a reasonable probability that his conviction or sentence would have been different had the materials been disclosed, he or she cannot show the materiality under Brady or prejudice from his or her failure to raise the exculpatory evidence claim earlier. Strickler v. Greene, 527 U.S. at 296. Petitioner's first claim is without merit and is procedurally defaulted.
In his second claim, Petitioner alleges that the prosecutor permitted Detective Pomorski to testify falsely both at the suppression hearing and at trial. Petitioner also claims that the prosecutor engaged in a deliberate deception to the trial court when he falsely claimed that petitioner's statement had been recorded by Detective Pomorski, when in fact, it had not.
The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d at 343. However, mere inconsistencies in testimony do not establish the knowing use of false testimony by the prosecutor either. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); Coe v. Bell, 161 F.3d at 343. The fact that a witness contradicts herself or changes her story also does not establish perjury. United States v. Lebon, 4 F.3d 1, 2 (1st Cir. 1993).
Petitioner first claims that the prosecutor falsely advised the trial court at the hearing to determine the admissibility of his statements to Detective Pomorski that the statement had been recorded, when in fact it had not been. Petitioner also claims that Detective Pomorski falsely testified at the hearing that Petitioner admitted complicity to other crimes, in exchange for which the police agreed that Petitioner would not be charged with these offenses.
In the present case, the trial court did not base its decision to admit Petitioner's statement into evidence either on the fact that it had been recorded or that the police had agreed not to prosecute Petitioner for other crimes that he admitted complicity for. Petitioner has therefore failed to show the requisite materiality of either statement for purposes of sustaining a claim that the trial court's decision to admit his statement into evidence was based on perjured testimony. Moreover, with respect to the prosecutor's comment that the statement had been recorded, Detective Pomorski admitted at the evidentiary hearing that this statement had not been written down. Therefore, the trial court was aware that this statement had not been recorded at the time that he reached the decision to allow it into evidence. Finally, with respect to Petitioner's claim that Detective Pomorski testified falsely, both at the hearing and later at trial, that petitioner admitted his complicity to other crimes in exchange for an agreement not to prosecute him for these offenses, Petitioner has offered no evidence that this testimony was false. In fact, the only evidence Petitioner offers to establish this claim is an order of dismissal in another case, in which charges of receiving and concealing stolen property over $100.00 were dismissed against him. If anything, this evidence tends to show that Detective Pomorski testified truthfully concerning the agreement not to charge Petitioner for any crimes that he admitted complicity to.
See Petitioner's Appendix B.
With respect to Petitioner's remaining claim that Detective Pomorski testified falsely at his trial, Petitioner has failed to show that Pomorski's testimony was false concerning the contents of Petitioner's statement. As indicated in Issue I, supra, Petitioner admitted telling Detective Pomorski that he couldn't tell him that he committed this crime and that his fingerprints would not be found in the apartment. Moreover, because Petitioner's statement to Detective Pomorski was basically exculpatory and did not directly incriminate him, Petitioner is unable to establish that this testimony was material or contributed significantly to his conviction.
A habeas petition should be granted if perjury by a government witness undermines the confidence in the outcome of the trial. Sassounian v. Roe, 230 F.3d 1097, 1107 (9th Cir. 2000) (citing to United States v. Bagley, 473 U.S. 667, 678 (1985)). In light of the compelling evidence against Petitioner in this case, as well as the fact that Petitioner's comments to Detective Pomorski were not inculpatory, this Court's confidence in the outcome of the trial has not been undermined. Petitioner is therefore not entitled to habeas relief on his second claim.
With respect to Petitioner's claim that his appellate attorney was ineffective for failing to raise these two claims on his direct appeal, Petitioner is unable to show that he was prejudiced by his appellate attorney's failure to do so. Even if counsel was deficient, Petitioner is unable to show that he was prejudiced by counsel's failure to appeal the alleged Brady violation. The materiality standard that Petitioner is required to meet to prove a Brady violation is identical to the prejudice standard required to prevail on an ineffective assistance of counsel claim. Martin v. Cain, 246 F.3d 471, 477 (5th Cir. 2001). In light of the fact that petitioner has failed to establish the materiality of either the evidence that was allegedly withheld or the materiality of the testimony that he claims was false, Petitioner is unable to establish that he was prejudiced by appellate counsel's failure to raise these issues in his appeal of right, either to excuse his procedural default or in support of his independent ineffective assistance of appellate counsel claim.
B. Claim #3. The claim that petitioner's statement was obtained in violation of his right to counsel.
Petitioner next claims that the statement that he made to Detective Pomorski should have been suppressed, on the grounds that he had requested to speak with counsel, and therefore, all questioning should have ceased.
Once an accused has expressed his desire to deal with the police only through counsel, he or she is not to be subjected to further interrogation until counsel has been made available to him or her, unless the accused initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-485 (1981).
In the present case, a hearing was conducted on the admissibility of Petitioner's statement. Petitioner testified that he requested to speak with an attorney, while Detective Pomorski denied that Petitioner ever requested the assistance of counsel. The trial court chose to believe Detective Pomorski's testimony and permitted the statement to be admitted into evidence. A state court's finding that a habeas petitioner did not make an unequivocal request for counsel and that the statement was voluntarily made is entitled to the presumption of correctness, where the petitioner fails to present clear and convincing evidence to rebut that presumption. See Pritchett v. Pitcher, 117 F.3d 959, 963 (6th Cir. 1997). In the instant case, Petitioner claims that the trial court's factfinding process was flawed because the court did not listen to the actual recording of the statement. This allegation is defeated by Petitioner's allegations in the second claim that there was, in fact, no recording of this statement. As the Court indicated in resolving Petitioner's first claim, Petitioner has not shown the existence of any recording of his interrogation by Detective Pomorski. Petitioner has therefore offered no evidence to rebut the presumption of correctness, therefore he is not entitled to habeas relief on this claim.
See Principal Brief in Support of Petition for Writ of Habeas Corpus, p. 13.
Moreover, assuming that the trial court erred in admitting Petitioner's statement into evidence, this would still not entitle Petitioner to relief. For purposes of determining whether federal habeas relief must be granted to a state prisoner on the ground of federal constitutional error, the appropriate harmless error standard to apply is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, on habeas review, a conviction may be reversed if the improper admission of a petitioner's statements, in violation of his or her right to counsel, had a substantial and injurious effect or influence in determining the jury's verdict. See Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). In the present case, even if Petitioner was interrogated in violation of Edwards v. Arizona, the admission of these statements that he made to Detective Pomorski did not result in actual prejudice to Petitioner, in light of the other strong circumstantial evidence in this case. See White v. Lewis, 874 F.2d 599, 603-604 (9th Cir. 1989). Because Petitioner is unable to show that he was prejudiced by the admission of his statements at trial, he is unable to satisfy the prejudice prong to overcome the procedural default.
This Court also rejects Petitioner's claim that appellate counsel was ineffective for failing to raise this issue on appeal for the same reasons. With respect to Petitioner's argument that he requested counsel during the police interrogation, the trial court conducted a hearing and ruled against him. These fact findings would "have been given great weight on appeal because of the trial judge's `peculiar advantages of having seen and heard the witnesses'". Bethea v. Artuz, 126 F.3d 124, 127 (2nd Cir. 1997) (quoting People v. Prochilo, 41 N.Y.2d 759; 395 N.Y.S.2d 635, 636; 363 N.E.2d 1380, 1381 (N.Y. 1977)). Appellate counsel would therefore have been "well justified in the decision" not to raise this issue as there is little likelihood that raising it would have lead to an alternate result. Id. Moreover, in light of the abundant evidence against Petitioner in this case, petitioner was not prejudiced by his appellate counsel's failure to argue on appeal that his statement to the police had been improperly admitted. See Pointer v. United States, 960 F. Supp. 179, 182 (E.D. Wis. 1997). Petitioner is unable to establish that he was prejudiced by appellate counsel's failure to raise this issue in his appeal of right, either to excuse his procedural default or in support of his independent ineffective assistance of appellate counsel claim
C. Claim #4. The cumulative errors claim.
Petitioner lastly argues that he is entitled to habeas relief on the basis of the cumulative effect of the first three errors raised in this petition, as well as for the two errors that he raised in his direct appeal concerning the trial court's failure to declare a mistrial based upon the detective's testimony implicating Petitioner in other crimes and the trial court's decision to permit Petitioner to be impeached on a collateral matter.
Federal habeas relief may be granted for cumulative errors in the conduct of a state trial where:
1. The individual errors involved matters of constitutional dimension rather than mere violations of state law; 2. the errors were not procedurally defaulted for habeas corpus purposes; and 3. the errors "so infected the entire trial that the resulting conviction violates due process."Derden it McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (citing to Cupping v. Naughten, 414 U.S. 141, 147 (1973)).
Petitioner's cumulative error claim must fail for two reasons. First, the first three errors that he raises in his cumulative errors claim are procedurally defaulted. Because he is procedurally barred from raising his first three claims, these alleged errors may not be included in any cumulative error analysis. Derden, 978 F.2d at 1458; McKinnon v. State of Ohio, 67 F.3d 300; 1995 WL 570918, * 12 (6th Cir. September 27, 1995).
With respect to Petitioner's remaining two claims involving Detective Pomorski' s testimony about Petitioner's involvement in other breaking and enterings, these claims are basically state law claims. When reviewing the cumulative effect of various errors, a habeas court may not consider asserted mistakes which are not constitutional errors at all. Cooey v. Anderson, 988 F. Supp. 1066, 1096 (N.D. Ohio 1997) (internal citations omitted). Habeas review does not encompass state court rulings on the admission of evidence unless there is a federal constitutional violation. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). Only where the erroneous application of state law deprives a petitioner of a fundamental constitutional guarantee will a federal court inquire into the state court rulings. Donnelly v. De Christoforo, 416 U.S. 637, 642-643 (1974). A federal habeas court will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of law. Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989); Cosme v. Elo, 2000 WL 246592, * 3 (E.D. Mich. February 4, 2000) (Cohn, J). In light of the fact that the last two errors claimed by Petitioner do not state a violation of the federal constitution, they cannot serve as the basis for a cumulative error claim.
III. CONCLUSION
The Court finds that petitioner's claims are procedurally defaulted and without merit. Accordingly, the Petition for Writ of Habeas Corpus shall be denied. Petitioner's Motion for the Appointment of Counsel is denied as being moot.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.