Opinion
Civil Action No. 99-CV-74198-DT
April 30, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
Petitioner, Alonzo Walker ("petitioner"), presently confined at the Pine River Correctional Facility in St. Louis, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is confined in violation of his constitutional rights. In his application, petitioner challenges his conviction after a jury trial in Recorder's Court for the City of Detroit of one count of burning personal property over the value of $50.00, M.C.L. 750.74, and one count of malicious destruction of personal property over the value of $100.00. M.C.L. 750.377a. Petitioner was first sentenced to thirty-two to forty-eight months imprisonment for each conviction. Those sentences were then vacated and petitioner was sentenced as a fourth felony habitual offender to single term of five to fifteen years imprisonment. M.C.L. 769.12.
II. Factual Background
Petitioner's convictions arise from his destruction by fire of a neighbor's car. The Michigan Court of Appeals summarized the evidence against Petitioner as follows:
Defendant was charged in connection with the destruction in April 1996 of a car owned by the complainant and parked in front of the complainant's residence at 6660 Otis in Detroit. 6660 Otis is across the street from the residence of the complainant's father and next door to the residence of defendant's father and, apparently, there was a longstanding dispute between the complainant's father and defendant's father. The complainant testified at trial that her car was firebombed. According to her testimony, in the evening of the day in question, the complainant looked out the window of her residence and saw defendant next to her car. The complainant testified that she saw defendant's hand make a downward motion, heard a "pop" noise, and then saw that her car was on fire. The complainant's father also testified at trial that he observed defendant make a motion with his hands, following which he heard a "boom" and saw flames. Defendant presented several alibi witnesses whose testimony indicated that defendant was at the home of his brother at the time of the incident. However, the jury convicted defendant of both the charged offenses, and the trial court sentenced him as outlined above.People v. Walker, 234 Mich. App. 299, 301-02 (1999).
It is undisputed that it was the same property — complainant's car — which was both the property over the value of $50.00 which petitioner burned and the personal property over the value of $100.00 which he maliciously destroyed.
III. Procedural History
Petitioner was convicted by a jury of burning personal property valued over $50.00 and malicious destruction of property valued over $100.00. Petitioner was first sentenced to terms of thirty-two to forty-eight months for these offenses. Then, the trial judge vacated those sentences and sentenced Petitioner to a sentence of five to fifteen years imprisonment for these crimes as a fourth felony habitual offender. Sentencing Transcript ("Tr.") at 15-16. Petitioner appealed his convictions as of right, raising the following claims:
I. Defendant's conviction of both malicious destruction of property over $100 and burning of personal property over $50 violates Double Jeopardy and one of these convictions must be overturned.
II. Defendant's conviction as a fourth habitual offender must by vacated, because the prosecutor failed to file a proof of service of the notice of enhancement as required by statute.
The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in a published opinion decided on March 2, 1999. People v. Walker, 234 Mich. App. at 304-12, 313-15 (1999).
There is no indication in the record that petitioner sought leave to appeal in the Michigan Supreme Court. Petitioner first attempted to file the present habeas petition on August 24, 1999. At that point, more than fifty-six days had passed from the date of decision of the opinion of the Michigan Court of Appeals. Consequently, by the time petitioner first attempted to file the present habeas petition, he had procedurally defaulted on his ability to seek leave to appeal in the Michigan Supreme Court. M.C.R. 7.302(C)(3); Seeger v. Straub, 29 F. Supp.2d 385, 391-92 (1998).
Petitioner has filed the instant application for a writ of habeas corpus, presenting the following claims:
I. Defendant's conviction of both malicious destruction of property over $100 and burning of personal property over $50 violates Double Jeopardy and one of these convictions must be overturned.
II. Defendant's conviction as a fourth habitual offender must by vacated, because the prosecutor failed to file a proof of service of the notice of enhancement as required by statute.
Petition at 3.
IV. Analysis
A. The AEDPA Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996)("AEDPA" or "the Act"), govern this case because Petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 520 U.S. 321 (1997).
The AEDPA altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus.
As amended, 28 U.S.C. § 2254 (d) provides that:
(d) 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.
The United States Supreme Court has recently addressed the question of the proper interpretation of the amendments to the habeas corpus statute concerning entitlement to relief. The Supreme Court has stated that "[i]n sum, § 2254(d)(1) places new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). The Supreme Court summarized the standard of review as follows:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523.
"[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." Williams, 120 S.Ct. at 1521. The reviewing court must be aware that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 120 S.Ct. at 1522. However, the correct inquiry is not whether all reasonable jurists would agree that the state court's decision was reasonable or unreasonable.
"[A] state court's application of federal law is unreasonable and a writ may issue only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible, credible outcomes." Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999), cert. denied, 120 S.Ct. 2658 (2000). Where constitutional trial error has been shown and the reviewing court concludes that the error had a substantial and injurious effect or influence in determining the jury's verdict, a state court ruling finding such error harmless beyond a reasonable doubt is outside the realm of plausible, credible outcomes and the petitioner is entitled to habeas relief. Id. "When a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief." O'Neal v. McAninch, 513 U.S. 432, 445 (1995). "Only if a federal habeas court can say with certainty that a trial error had little or no impact on the judgment, should the judgment stand." Barker, 199 F.3d at 873.
The federal court reviewing a habeas petition must apply the presumption of correctness to evidence-supported factual determinations made by a state court. West v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996); cert den. 518 U.S. 1027 (1996); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). This presumption may only be overcome by the presentation of clear and convincing evidence by the petitioner. 28 U.S.C. § 2254 (e)(1).
B. Procedural Default
A state prisoner's habeas corpus claims are procedurally defaulted if the prisoner has failed to comply with an independent and adequate state procedural rule, thus causing default of the prisoner's federal claims in state court. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This can occur when an individual fails to present an issue to a state appellate court upon the only opportunity to do so. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). In Coleman, the Supreme Court held that if the decision of the last state court to which a habeas petitioner presented his federal claims fairly appeared to rest primarily on federal law, or to be interwoven with federal law, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition. Id. at 735, 111 S.Ct. 2546. The Court went on to note:
This rule does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.Id. at 735 n. 1, 111 S.Ct. 2546.
In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), Justice O'Connor noted that "dismissing such petitions for failure to exhaust state court remedies would often result in a game of judicial ping-pong between the state and federal courts, as the state prisoner returned to state court only to have the state procedural bar invoked against him." Id. at 270, 109 S.Ct. 1038 (concurring opinion). The record demonstrates that Petitioner did not seek review of his sentences on direct appeal to the Michigan Supreme Court. Petitioner is now barred from seeking such review under Michigan Court Rule 7.302 (C)(3), which imposes a 56-day time limit for filing delayed applications for leave to appeal with the Michigan Supreme Court. Thus, Petitioner has procedurally defaulted his claims.
Where the respondent raises a procedural default defense, absent cause and prejudice, a federal court may not reach the merits of a claim that has been procedurally defaulted in state court by a state prisoner in his direct criminal appeal. Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). Respondent has raised the procedural default defense in the present case. Respondent's Brief at 6. The cause and prejudice test should be applied to all occasions where a procedural default bars state litigation of a constitutional claim. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Generally, a petitioner must demonstrate cause and prejudice for the procedural default for the Court to consider his procedurally defaulted claim(s) as a basis for habeas relief. To establish cause, a petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988); Rust, 17 F.3d at 161. Here, petitioner makes no showing of cause for failing to seek leave to appeal to the Michigan Supreme Court.
"[I]n the habeas context, a procedural default, that is, a critical failure to comply with a state procedural law, is not a jurisdictional matter." Trest v. Cain, 522 U.S. 87, 89-90 (1997). "The state can waive a procedural bar to relief by explicitly waiving, or by merely failing to assert the bar in its answer to the habeas petition." Esslinger v. Davis, 44 F.3d 1515, 1524 n. 32 (11th Cir. 1995).
Nor can he demonstrate actual prejudice as a result of the claimed constitutional errors. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Rust, 17 F.3d at 161. To the extent that petitioner argues that the prosecutor improperly failed to file a proof of service of its notice of intent to seek his sentencing as a habitual offender as required under state law, he fails to set forth a cognizable federal habeas claim. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding that alleged state law errors do not state federal constitutional claims cognizable in federal habeas corpus); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)(same). Furthermore, the Michigan Court of Appeals found that, while the prosecution may not have filed a written proof of service of its notice of intent to seek petitioner's sentencing as an habitual offender, any such error was harmless beyond a reasonable doubt, because "defense counsel admitted at the sentencing hearing that the notice of intent had been received." People v. Walker, 234 Mich. App. 299; Sentencing Tr. at 4. Petitioner did not dispute defense counsel's acknowledgment of receipt of this notice at his sentencing hearing. Petitioner does not allege that he never received the notice. Nor does petitioner dispute the validity of his prior convictions. Therefore, the Michigan Court of Appeals decision that any error in the prosecution's failure to file a written proof of service of its notice of intent to seek habitual offender sentencing was harmless beyond a reasonable doubt is a reasonable application of federal law. Consequently, petitioner cannot show prejudice from this alleged error.
Petitioner also alleges that his convictions violate the Double Jeopardy Clause. The Double Jeopardy Clause of the Fifth Amendment "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). "Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments forthe same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (emphasis added). See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874).
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . .
This test stresses the elements of the two crimes. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . ." Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975). If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they will also be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 675-676, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless "each statute requires proof of an additional fact which the other does not," Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.
Petitioner was convicted in a single prosecution of burning personal property over $50 in value and malicious destruction of personal property over $100 in value based on destroying a car by firebombing it.
MCL 750.74; MSA 28.269 (the burning of personal property statute) provides:
Any person who wilfully and maliciously burns any personal property, other than that specified in the preceding sections, owned by himself or another shall, if the value of the personal property burned or intended to be so burned be $50.00 or less, be guilty of a misdemeanor. If the value of the personal property burned or intended to be so burned be more than $50.00, such person shall be guilty of a felony.
M.C.L. 750.377a; MSA 28.609(1) (the malicious destruction of personal property statute) provides:
Any person who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in the preceding section, if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony.
The burning of personal property statute and the malicious destruction of property statute do not each require proof of a fact that the other does not. Both require a wilful and malicious intent. The burning of property statute requires proof of burning, while the malicious destruction of property statute does not. However, the malicious destruction of property statute does not require proof of an additional fact which the burning property statute does not. The malicious destruction statute requires proof only that a person wilfully and maliciously destroyed or injured the property of another by any means. One cannot wilfully an maliciously burn the property of another without also wilfully and maliciously destroying or injuring it. "[I]t is clearly not the case that each (statute) requires proof of a fact which the other does not." Brown v. Ohio, 432 U.S. at 167. Consequently, under the Blockburger test, these two offenses are not sufficiently distinguishable to permit the imposition of cumulative punishments.
Nonetheless, petitioner cannot show prejudice from his alleged double jeopardy violation.
Although petitioner was convicted of both crimes in a single proceeding, he was not subjected to cumulative or consecutive sentencing. Petitioner received a single five to fifteen year sentence as a fourth felony habitual offender for these crimes. Review of the record shows that the trial judge sentenced petitioner to five to fifteen years because of petitioner's obstinately recidivist behavior, and the seriousness of the car-burning incident, not because he had been convicted of two offenses in the trial in her court. The judge stated that "this case represents your fourth felony conviction." Sentencing Tr. at 12. This indicates that the judge considered petitioner's trial and convictions as one case. The judge also noted that petitioner had previously been placed on probation three times and had never successfully completed any of those three terms. Id. She said that "there is no way in good conscious [sic] I could place you on probation again and I'm not going to do it." Id. at 11. The judge also noted that petitioner had previously been convicted of the related crimes of arson of real property and malicious destruction of property, as well as attempted breaking and entering, and that at least one of his prior offenses involved the same victim. Further, the judge noted that petitioner's contact with the victim had been in violation of a prior court order and admonished petitioner that he showed "a blatant disregard for the criminal justice system due to the ongoing problems that you have precipitated on this family." Id. at 13. Thus, it is clear that petitioner's five to fifteen year sentence was imposed because of his prior record and the severity of his destructive act. Petitioner was not subjected to cumulative sentencing or consecutive sentencing for these convictions. Therefore, for this reason, petitioner was not subjected to multiple punishments for the same offense in violation of the Double Jeopardy Clause. Consequently, he cannot show prejudice from the procedural default of this constitutional claim.
Following customary Michigan practice, the trial judge first imposed thirty-two to forty-eight month sentences on Count I and Count II, then vacated those sentences before sentencing petitioner as a habitual offender. Sentencing Tr. at 15-16. In Michigan, unless consecutive sentencing is dictated by statute, or the sentencing judge explicitly states that sentences are consecutive, there is a presumption that sentences imposed in a single proceeding for a single transaction or occurrence are concurrent. Concurrent sentences of equal length are not cumulative. In any event, petitioner's two thirty-two to forty-eight month sentences were vacated and a single five to fifteen year habitual offender sentence was imposed.
In addition to finding that burning of personal property and malicious destruction of property are two crimes under the Blockburger test, permitting cumulative punishment, the Michigan Court of Appeals also found that "defendant's multiple punishments did not violate double jeopardy because the two offenses in question also protect distinct social norms. . . . The malicious destruction of personal property statute proscribes the wilful and malicious destruction or injury of the personal property of another by any means. By contrast, the burning of personal property statute prohibits a person form wilfully and maliciously burning any personal property, whether owned by himself or another. . . . It is clear that the malicious use of fire is a danger to society regardless of whose property is being burned. The Legislature has therefore protected a different class of persons by each statute. While the malicious destruction of personal property statute protects the owner of the property, the burning of personal property statute protects anyone who may be endangered by the malicious use, and possible spread, of fire." People v. Walker, 234 Mich. App. at 312-13 (emphasis in original).
In Missouri v. Hunter, 459 U.S. 359, 368-69 (1983), the United States Supreme Court held that "where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial."
A State's courts "`have the final authority to interpret . . . that State's legislation.'" Brown v. Ohio, 432 U.S. at 167 (quoting Garner v. Louisiana, 368 U.S. 157, 169 (1961)). Michigan's burning property statute and malicious destruction of property statute do not explicitly authorize cumulative punishment. However, petitioner was not subjected cumulative punishment for his conviction under both statutes. Therefore, this Court need not decide whether the Michigan Court of Appeals ruling that the Michigan legislature sought to protect different classes of people by each statute would allow the state to impose cumulative (or consecutive or multiple) punishments for conviction of both statutes in a single proceeding under the Double Jeopardy Clause of the Federal Constitution.
When a petitioner has defaulted his state remedies and has not demonstrated cause and prejudice, a federal court may entertain the habeas petition only if the petitioner makes a showing of actual innocence. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Petitioner has made no such showing in the case at hand. Consequently, Petitioner's claims are barred by the doctrine of procedural default.
V. Conclusion
Based on the foregoing, the Court concludes that none of Petitioner's claims merit habeas relief. Petitioner's claims are barred by his state procedural default. Further, petitioner's convictions and sentence are not based on an adjudication that 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. Nor are his convictions and sentence based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Accordingly, the petition for a writ of habeas corpus is DENIED.
SO ORDERED.