Opinion
Case Number 02-10065-BC.
January 9, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR BOND
Chester Ulman, a Michigan prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights.
The petitioner was convicted of possession with intent to deliver more than 650 grams of cocaine following a jury trial in the Recorder's Court for the City of Detroit and was sentenced in 1986 to life in prison. The petitioner's sole claim on habeas review is that defense counsel was ineffective in failing to properly investigate and challenge the affidavit that police submitted to obtain a search warrant for his home. As a result, the petitioner contends, the state trial judge denied the petitioner's motion to suppress evidence. The Court finds that the petitioner has not established the requisite prejudice flowing from his trial counsel's alleged deficient performance, and therefore the petition will be denied. Additionally, given this determination, the petitioner's outstanding motion for bond, which was taken under advisement after oral argument on August 8, 2002, will also be denied.
I.
The petitioner's conviction arises from a search of his home at 12923 Caldwell Street in Detroit, Michigan on March 27, 1985, in which police recovered cocaine, marijuana, narcotics paraphernalia, cash, and weapons. The Michigan Court of Appeals set forth the relevant pretrial facts, presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp.2d 753, 758 (E.D.Mich. 2001), aff'd, 41 Fed. Appx. 730 (6th Cir. 2002), as follows:
On March 27, 1985, at approximately 1:00 a.m., undercover police detective Dana DeClark executed a search warrant at 12923 Caldwell (hereinafter the Caldwell house) in the city of Detroit. Defendant was the owner of the residence, but he was not at home when the police searched his house. DeClark was accompanied by several other officers, including Sergeant Ronald Lapp and Lieutenant James Tuttle. On top of a bedroom dresser, DeClark found a small bag of cocaine, a small bag of marijuana, a digital scale, an envelope addressed to defendant, and cash in the amount of $2,289.
The police also found suspected narcotics and narcotics-related materials in a briefcase and a safe, which contained $855.
Defendant was arrested and charged with possession with intent to deliver 650 grams or more of cocaine, M.C.L. § 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
Before trial, defendant filed a motion to suppress the evidence of cocaine seized at his home on the ground that the affidavit in support of the search warrant was defective. Defendant argued that the affiant, DeClark, made false representations regarding statements made to her by an individual, John, which indicated that John had obtained drugs from defendant's residence. An evidentiary hearing was held before Judge Edward M. Thomas on October 9, 1985.
The affidavit in support of the search warrant stated:
1. The affiant is a Detective with the Warren Police Department assigned to the County of Macomb Enforcement Team (COMET) to investigate the illegal trafficking of controlled substances.
2. On 3/25/85, the affiant while acting in an undercover capacity met a subject MIKE (last name unknown) in the city of Warren for the purpose of arranging the purchase of 1/8 ounce of cocaine.
MIKE advised that his friend JOHN (last name unknown) would go to Detroit to pick up the cocaine and return in a short time, at which time JOHN left MIKE and the affiant.
3. Approximately 45 minutes later JOHN returned and met with MIKE, at which time MIKE produced 1/8 ounce of suspected cocaine for the affiant.
4. The suspected cocaine purchased from MIKE through JOHN was analyzed by John Siefert of the Michigan State Police Crime Lab in Madison Heights and was determined to be Cocaine, a Schedule 2, Non-narcotic, controlled under the Michigan Public Health Code.
5. On 3/26/85 at approximately 8:00 p.m., the affiant while acting in an undercover capacity, once again met MIKE in the city of Warren for the purpose of purchasing cocaine. MIKE advised that he would once again be going with his friend JOHN to their "supplier" to pick up the cocaine. At that time, the affiant gave MIKE $650.00 in pre-recorded U.S. currency to purchase 1/4 ounce of cocaine.
6. Prior to meeting MIKE on 3/26/85, the affiant recorded the serial numbers on $765.00 in U.S. Currency by making photocopies of the serialized bills and attaching them to the affidavit.
7. Upon leaving the affiant MIKE and JOHN were followed by the surveillance team to the residence at 12923 Caldwell St. in the city of Detroit, Wayne County.
8. Upon arriving at 12923 Caldwell St., Detroit, JOHN was observed entering the residence by Detective/Sergeant Ronald Lapp of the surveillance team.
9. After approximately 5 minutes JOHN exited the residence, re-entered the suspect vehicle, and was followed by the surveillance team back into the city of Warren.
10. After a short period of time MIKE recontacted the affiant at which time he (MIKE) delivered 1/4 ounce of suspected cocaine and was arrested for Delivery of Cocaine.
11. Upon being searched incident to his arrest, none of the pre-recorded buy money previously mentioned was recovered from MIKE.
12. Based upon observations of the surveillance team JOHN was also arrested in Possession of Cocaine.
13. Upon being searched incident to his arrest, $50.00 in pre-recorded U.S. currency was recovered from JOHN'S person.
14. Upon being interviewed by Detective/Sergeant Lapp, JOHN admitted that he had purchased the cocaine through a subject known as TONY ULMAN but that he had picked the cocaine up from an unidentified woman at the residence on Caldwell St. JOHN also advised that the residence on Caldwell St. is owned by a CHET ULMAN; JOHN paying $600.00 for the cocaine.
15. The affiant was advised by Detective/Sergeant Lapp that he (Lapp) has personally arrested both CHESTER ULMAN and TONY ULMAN in the past for cocaine trafficking AND that both subjects have convictions for felony violations of the Michigan Public Health Code.
16. The 1/4 ounce of suspected cocaine purchased by the affiant from MIKE through JOHN on 3/26/85 was field tested positive for cocaine by the affiant.
At the hearing on the motion to suppress, police officers testified that, on March 26, the day before the search warrant was executed, DeClark and others were engaged in undercover surveillance activities. DeClark gave marked currency to Mike, who was an associate of John, through whom cocaine was to be obtained.
A police surveillance crew followed Mike and John to the Caldwell house and then to the Coventry Inn, a motel in Warren. John and Mike made two other stops during their trip to the Coventry Inn from the Caldwell house, at a party store and a gasoline station.
Although the affidavit made no mention of those stops, undercover officers followed Mike and John into these businesses to assure that they did not procure cocaine at either place. At the Coventry Inn, Mike gave DeClark an amount of cocaine while John remained in another room. Following the delivery, cocaine was found in John's room and some of the marked currency was also found in his possession.
Lieutenant Tuttle testified that, upon questioning at the police station following the arrests, John stated that "he had called Tony at the bar to set up the deal, and that Tony had okayed them going over to the house on Caldwell to get the cocaine." Defendant's son is Tony Ulman. John also reportedly told Sergeant Lapp that he went to the Caldwell address and picked up the cocaine from an unnamed woman. In contrast, John testified that he did not obtain the cocaine from the Caldwell house and, when specifically asked whether he had made the statement regarding the unidentified woman, said: "I don't remember. I don't think I did, no."
Tuttle testified about the statement made to Lapp, explaining that he was in the room where Lapp interrogated John.
Tuttle also testified regarding paragraph fifteen of the affidavit, which states that Tony Ulman had felony convictions for cocaine trafficking. The lieutenant testified that, in fact, after checking court records, he determined that, while arrests had been made, charges against Tony had been dismissed.
Judge Thomas ruled that paragraph fourteen of the affidavit should stand. The court stated that, after hearing the testimony of both John and Tuttle, it found nothing "that would indicate that it was not being set forthrightly and honestly at the time that this affidavit was typed and presented to the magistrate for signature." With regard to paragraph fifteen, Judge Thomas found that the error was "an honest mistake and was not a deliberate falsehood or a wreckless [sic] disregard for the truth at the time that Lieutenant Tuttle indicated that Tony Ulman had a cocaine possession conviction." Judge Thomas further stated that if the entire paragraph fifteen were stricken, it would not have any bearing on the validity of the affidavit. The court found the wording of the search warrant to be in conformity with the testimony of Tuttle. Judge Thomas denied defendant's motion to suppress evidence obtained pursuant to the search warrant. People v. Ulman, 244 Mich. App. 500, 503-07, 625 N.W.2d 429, 431-33 (2001).
The jury convicted the defendant and he was sentenced a mandatory term of life imprisonment without the possibility of parole. Following sentencing, the petitioner filed an appeal with the Michigan Court of Appeals asserting several claims of error, including several claims of ineffective assistance of counsel. The court remanded the case to the trial court for a hearing on the ineffectiveness claims pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). On remand, the petitioner did not address the quality of defense counsel's challenge to the validity of the search warrant affidavit. Judge Thomas concluded that the petitioner had not been denied the effective assistance of counsel, and the Michigan Court of Appeals thereafter affirmed the petitioner's conviction in an unpublished per curiam decision. People v. Ulman, No. 93660 (Mich.Ct.App. Aug. 31, 1988). The petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Ulman, No. 84143 (Mich. March 7, 1989).
On April 16, 1997, the petitioner filed a motion for relief from judgment and a request for an evidentiary hearing with the state trial court asserting the following claims:
I. His Fourth Amendment rights were violated because the affidavit submitted in support of the search warrant contained erroneous information and intentional omissions which, when corrected, failed to provide probable cause for issuance of the warrant.
II. His Fourth Amendment rights were violated when the police violated Michigan's "knock and announce" statute.
III. He was denied his right to the effective assistance of counsel under the Sixth Amendment because counsel failed to fully investigate and seek suppression of the evidence obtained in the search.
A different trial court judge, Judge Daphne Means Curtis, conducted an evidentiary hearing on July 17 and October 16, 1998.
At that hearing, John Halmaghi ("John") testified that he lived at 464 West Goldengate in Detroit, Michigan in March, 1985. At that time, he had a cousin named George David who lived at the Coventry Inn in Warren, Michigan whom he visited nearly every day, sometimes to use cocaine. John was arrested at the Coventry Inn on March 26, 1985, charged with a narcotics offense, and taken to the Warren Police Department. John did not remember if he was questioned that day, but said that he was not advised of his Miranda rights. John denied telling police that he bought cocaine through Tony Ulman that day and denied that he picked up the cocaine from an unidentified woman at Petitioner's home on Caldwell Street. He thought that the police asked him about this, but could not remember if they asked him about owning a house on Caldwell. John did not make a written or recorded statement. Police did not threaten him or promise him anything to obtain a statement.
John admitted that he was arrested in a room containing cocaine at the Coventry Inn, but could not remember the name of the person from whom he obtained the cocaine. When specifically asked about the statement contained in paragraph 14 of the affidavit, John replied, "I don't think I say that to him. . . . I don't think so." On cross-examination, John acknowledged that he pleaded guilty to delivery of cocaine arising from the incident at issue.
John explained that his friend Mike Strachan ("Mike") asked him for cocaine on March 25, 1985 and that he met Mike at a gas station to give him cocaine. Mike asked him for more cocaine the next day at the Coventry Inn. John testified that he drove by himself to see a friend on 7 Mile Road, then went to talk to Tony Ulman on Caldwell Street, but he was not home. He then went to a party store and returned to the Coventry Inn. John admitted that he had cocaine, but claimed that he had it in his possession the whole time but did not want Mike to know. John could not recall the value of the cocaine, but thought it could have been $300 or $600. John testified that he worked for Mike's father and did not want him to find out he was giving him cocaine. John also claimed that he went to the Caldwell address to ask Tony about a go-go dancer. John knew that Mike wanted the cocaine for a woman, but he was not present when he gave her the cocaine.
The petitioner's trial counsel, Cyril Hall, testified that he had a copy of the affidavit, the search warrant, and the investigator's report prior to trial. He did not serve a discovery order on the police prior to trial because he was unfamiliar with Wayne County procedures. He did contact police about their reports but did not receive them until just prior to trial. When he discovered that the police had followed John to the Goldengate address for a prior cocaine buy, he moved to re-open the suppression hearing, but Judge Thomas denied his request. Hall agreed that the police reports describing the prior cocaine transactions with Mike, which did not involve the Caldwell address, were significant and that the incidents were not included in the affidavit.
Two police officers, Ronald Lapp and Dana DeClark also testified at the hearing. Although Michigan State Police Lieutenant James Tuttle was not called to testify at the hearing because he was in Arizona, the parties and Judge Curtis agreed that they would consider his prior evidentiary hearing and trial testimony. Lapp, a retired State Police Sergeant, testified that he questioned John Halmaghi following his arrest and believed that the purpose was to turn him into an informant. He could not recall the specifics of the interview or the execution of the search warrant, but stated that the police reports and his previous testimony would have been accurate. He could not recall whether John had been advised of his Miranda rights, but noted that the police reports indicated that he was so advised. Lapp admitted that paragraph 15's statement that Tony Ulman had been convicted of a narcotics offense was untrue, although the statement regarding the arrest was true.
DeClark, a Warren police officer, testified that she was the affiant to the search warrant which was drafted by Lieutenant Tuttle. She was also present when the search warrant was executed and recovered pre-recorded funds from the Caldwell address.
DeClark testified that her police report describing her February 20, 1985 cocaine purchase from Mike Strachan at the Coventry Inn was accurate and that he was followed to a gas station that day.
She also discussed the police report of the March 25, 1985 cocaine purchase from Mike and John and noted that John was followed to the Goldengate address on that occasion. She acknowledged that these incidents were not included in the affidavit submitted to obtain the search warrant. She explained that the "LNU" (last name unknown) designations following John and Mike's names were used because their identities had not been verified prior to seeking issuance of the warrant. DeClark also noted that the affidavit stated that Mike had told her that John would go to Detroit to pick up the cocaine, although she testified at Mike's preliminary hearing on November 19, 1985 that it had not been revealed where John would pick up the cocaine. DeClark also stated that her police reports indicated that John and Mike stopped in Room 225 at the Coventry Inn prior to delivering her the cocaine in Room 132 of the Coventry Inn on March 26, 1985. Cocaine and a scale were found in Room 225. This information was not included in the affidavit submitted in support of the search warrant.
Following the hearing, Judge Curtis granted the petitioner's motion for relief from judgment, finding that the affidavit, when corrected, failed to establish probable cause for the search of the petitioner's home. In making this determination, Judge Curtis found John's testimony more credible than that of the police officers with respect to paragraph 14 of the affidavit. Judge Curtis noted that the police had not established John's reliability as an informant and that they had questioned him without informing him of his Miranda rights. Judge Curtis concluded that defense counsel was ineffective for failing to fully investigate the police reports and properly challenge the affidavit prior to trial. People v. Ulman, No. 85-02534 (Wayne Co. Cir. Ct. May 3, 1999). The petitioner was released on bond pending the prosecution's appeal.
The prosecution sought leave to appeal with the Michigan Court of Appeals, asserting that the trial court abused its discretion in granting the petitioner relief from judgment. The Michigan Court of Appeals granted leave and reversed Judge Curtis' decision, finding that she abused her discretion in discounting Judge Thomas' credibility determinations with respect to paragraph 14 of the affidavit. The Court of Appeals further concluded that probable cause was established by paragraph 14 even when the other errors and omissions were considered, and that, as a result, Petitioner failed to show that he was prejudiced by defense counsel's performance. People v. Ulman, 244 Mich. App. 500, 514-15, 625 N.W.2d 429, 437 (2001). Following this decision, the petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Ulman, 638 N.W.2d 744 (2001). The petitioner's motion for reconsideration was also denied. People v. Ulman, 639 N.W.2d 813 (2002).
The petitioner, through counsel, filed the instant petition for writ of habeas corpus, as well as a motion for bond, on February 11, 2002. The respondent filed an answer to the petition on July 29, 2002, asserting that it should be denied for lack of merit. A hearing on the bond motion was conducted on August 8, 2002 and the matter was taken under advisement.
II.
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). 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 v. Taylor, 529 U.S. 362, 405-06 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 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 Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
The principal basis upon which the petitioner sought relief in his state court post-conviction motion was that certain statements contained in the search warrant affidavit were false, undermining the validity of the magistrate's probable cause determination.
Under the rule of Franks v. Delaware, 438 U.S. 154 (1978), "with the affidavit's false material set to one side, [if] the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 155-56. The petitioner convinced the second state court trial judge to revisit the validity of the search warrant by contending that his trial counsel did not adequately investigate and present those issues during the pretrial suppression motion hearing. Judge Curtis agreed with the petitioner that the affidavit contained false information, based on her reassessment of the credibility of the informant and the search warrant affiant, but the state court of appeals held that Judge Curtis should not have reweighed the credibility of the witnesses after the original trial judge had performed that task several years earlier.
The petitioner may not challenge on habeas review the correctness of the state court's determination of the search warrant's validity. Federal courts will not address a Fourth Amendment claim in a habeas proceeding if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). This Court performs two distinct inquiries when determining whether a petitioner may raise a claim of illegal search and seizure in a habeas action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)). It is abundantly clear, and the petitioner does not argue otherwise, that the state courts afforded the petitioner ample opportunity to fully litigate his Fourth Amendment issues.
But the petitioner has couched his habeas petition in somewhat different terms, contending that his original trial attorney was ineffective to the extent that he did not obtain police reports and properly investigate the statements in the search warrant affidavit and argue to the first trial judge the reasons why the affidavit was invalid. This is an argument that must be considered by this Court since the doctrine of Stone v. Powell does not bar federal habeas review of a Sixth Amendment claim challenging defense counsel's failure to litigate a perceived Fourth Amendment violation. See Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986). See also Northrop v. Trippett, 265 F.3d 372, 378 (6th Cir. 2001).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged 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." Id.
The Supreme Court emphasized that, when assessing counsel's performance, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal quotes and citations omitted). The Court explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690.
To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the United States Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
In this case, the Michigan Court of Appeals concluded that the petitioner could not show that he was prejudiced by defense counsel's failure to obtain the police reports and thoroughly challenge the search warrant affidavit prior to trial because the affidavit, when corrected, still established probable cause for the issuance of the warrant. In reaching this conclusion, the court found that paragraph 14 of the affidavit alone established probable cause and that Judge Curtis abused her discretion by contradicting Judge Thomas' previous finding that the police testimony concerning paragraph 14 was more credible than that of John Halmaghi. The court of appeals stated:
[W]e further conclude that any argument that defense counsel might have made with respect to the affidavit's sufficiency, at trial or upon subsequent appeal, would have been to no avail. There can be no finding of ineffective assistance of counsel where there could have been no effect on the outcome of defendant's case.People v. Ulman, 244 Mich. App. at 514-15, 625 N.W.2d at 437.
At the August 8, 2002 bond hearing, the parties agreed that if paragraph 14 of the search warrant affidavit stands, then probable cause is established and the search warrant is valid. The petitioner argues that the first state trial judge should have stricken that paragraph, and would have if he had all the pertinent information, as evidenced by the ruling of the second trial judge. The petitioner contends that the first trial judge did not have all the information due to the ineffective assistance of his first lawyer. The state court of appeals held that the first trial judge did have the necessary information to properly assess the hearing testimony of the informant and the search warrant affiant, and to determine their respective credibility.
The question presented here, then, is whether the determination by the Michigan Court of Appeals that the petitioner's lawyer's performance caused him no prejudice constituted an incorrect or unreasonable application of federal law as established by the Supreme Court.
The petitioner claims that the following "new" information was presented to Judge Curtis at the 1998 hearing, that had not been available to Judge Thomas during the 1985 suppression hearing because of the petitioner's attorney's substandard performance in not serving a discovery order on the prosecutor and obtaining the former testimony of an officer, who was also the search warrant affiant: that the informant, "John" Halmaghi went to the Goldengate location before he stopped at the Caldwell residence on March 25; information concerning a February 20 transaction at a different location; the preliminary examination testimony of Officer Dana DeClark in which she stated, contrary to the affidavit, that she knew where "John" was going to meet his connection. The petitioner argues that this information may alter the complete picture as portrayed by the search warrant affidavit in that the Caldwell address owned by the petitioner might not have been a continuing source of cocaine. However, the information does not alter the substance of paragraph 14 or impact Judge Thomas' determination that the police were more credible than the informant as to what "John" told Detective Lapp. The state court of appeals determined that the allegations in paragraph 14 were sufficient to establish probable cause that contraband would be found at the Caldwell address, which is sufficient to support the issuance of a search warrant. See United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985) (per curiam) ("Probable cause exists when there is a `fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.").
The Michigan Court of Appeals' decision in this regard is supported by the record. At the 1985 suppression hearings, Lieutenant Tuttle unequivocally testified that John told him and Sergeant Lapp that he obtained the cocaine from the petitioner's Caldwell Street residence. See 10/9/85 Evid. Hrg. Tr. at 27-28.
Sergeant Lapp was not specifically questioned about John's statement, but confirmed that he assisted Lieutenant Tuttle with the search warrant. Id. at 44. It is undisputed that police followed John to that location on March 26, 1985 shortly before he provided cocaine to the undercover police officer. In contrast, when John was asked whether he told police that he picked up the cocaine from an unidentified woman on Caldwell Street, he responded, "I don't remember. I don't think I did, no." See 9/27/85 Evid. Hrg. Tr. at 22.
The testimony at the 1998 hearings reflected the same factual dispute. Sergeant Lapp testified that he did not have an independent recollection of John's interrogation, but referenced the police reports which indicated that John had told police that he obtained the cocaine from the Caldwell Street residence.
Sergeant Lapp recalled that his conversation with John was not particularly relevant to his arrest because they had him on a hand-to-hand delivery, but stated that the police would have been interested in turning John into an informant. See 10/16/98 Evid. Hrg. Tr. at 46-49. Lieutenant Tuttle was unavailable to testify, but the parties and the court agreed to consider his prior testimony. Id. at 76-77. John, who had pleaded guilty to a cocaine delivery charge arising from the incident, again denied telling police that he retrieved the cocaine from the petitioner's Caldwell Street residence. See 7/17/98 Evid. Hrg., at 36, 39. John claimed that he obtained the cocaine from a person whose name he could not remember, that he went to the petitioner's residence to inquire about a go-go dancer, and that he had the cocaine in his car the whole time, but did not want his friend Mike to know this fact. Id. at 38, 46-49. Given such testimony, this Court cannot conclude that the Michigan Court of Appeals' deference to Judge Thomas' credibility determination conflicts with federal law or is unreasonable. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981).
The Michigan Court of Appeals made a choice between two credibility findings made by the trial court and determined that the police testimony concerning paragraph 14 of the affidavit was more credible than John's testimony. This Court must defer to that decision. See 28 U.S.C. § 2254(e)(1). The "statutory presumption of correctness extends to factual findings made by state appellate courts on the basis of their review of trial court records." Hardaway v. Withrow, 305 F.3d 558, 563 (6th Cir. 2002); see also Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001) (citing Sumner, 449 U.S. at 546-47). Federal courts on habeas review do not have license to redetermine witness credibility. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
Giving proper deference to the state court of appeals' resolution of the credibility issue, this Court concludes that John's statement to police that he obtained cocaine from the Caldwell Street residence provided probable cause to justify the issuance of the search warrant. Thus, even assuming that defense counsel was deficient for failing to fully investigate the police reports and properly challenge the search warrant affidavit prior to trial, the petitioner cannot show that he was prejudiced by counsel's conduct as required by Strickland, supra. The petitioner has therefore not established that he is entitled to habeas relief on his claim that trial counsel was ineffective for failing to properly investigate and litigate his Fourth Amendment claim.
III.
The Court concludes that the decision of the Michigan Court of Appeals overturning the decision of Judge Curtis was neither contrary to, not an unreasonable determination of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). The petitioner's exemplary disciplinary record while incarcerated and while on bond after Judge Curtis's decision make a strong case for clemency, but do not alter the fact that the petitioner is not in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
Given this determination, it is FURTHER ORDERED that the petitioner's Motion for Bond [dkt #3] is DENIED.