Opinion
No. 02-71273
January 22, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Trenell Whitworth, a state inmate currently incarcerated at the Boyer Road Correctional Facility in Carson City, Michigan, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. For the reasons set forth below, the Court denies the petition.
II. Procedural History
Following a bench trial in Recorder's Court for the City of Detroit, Petitioner was convicted of assault with intent to murder and possession of a firearm during the commission of a felony. On June 14, 1996, he was sentenced to fourteen to twenty-five years imprisonment for the assault conviction to be served consecutively to a sentence of two years imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The verdict is against the great weight of the evidence.
II. Mr. Whitworth's conviction for assault with intent to commit murder should be reversed as the evidence was insufficient to support the verdict.
III. Mr. Whitworth was denied due process and his right to a meaningful appeal where the court's findings of fact are insufficient.
IV. Appellant was denied the effective assistance of counsel when his attorney did the following:
A. Counsel failed to call witness James Battle to testify and to call the line-up attorney to testify to comments made by Mr. Miller and Mr. Trayner.
B. Counsel failed to object when the prosecution shifted the burden of proof.
C. Counsel failed to move to dismiss the case based on an unsigned arrest warrant and failed to move to suppress evidence flowing from an illegal arrest.
V. Appellant was denied due process of law when the prosecutor shifted the burden of proof during closing argument.
VI. The sentence was unconstitutional for the following reasons:
A. The guidelines were incorrectly scored.
B. Where the defendant was sentenced for involvement and for a life-style, the sentence was neither individualized nor fair.
Petitioner also filed a Motion to Remand the case to the trial court for an evidentiary hearing regarding his ineffective assistance of counsel claim, pursuant to People v. Ginther, 390 Mich. 258 (1973).
The Michigan Court of Appeals denied the Motion to Remand, People v. Whitworth, No. 196412 (Mich.Ct.App. Nov. 21, 1996), and affirmed Petitioner's convictions and sentences. People v. Whitworth, No. 196412 (Mich.Ct.App. June 24, 1997). Petitioner filed a Motion for Rehearing, which was denied. People v. Whitworth, No. 196412 (Mich.Ct.App. Aug. 27, 1997).
Petitioner thereafter filed an application for leave to appeal in the Michigan Supreme Court, presenting the following claims:
I. Whether the Court of Appeals' affirmance of the trial court's conviction of defendant of the crime of assault with intent to commit murder, and of felony firearm in connection with the commission of that felony, was clearly erroneous where the trial court considered a cognate lesser offense where the language of the charging document failed to give defendant notice that he could face a lesser offense charge contrary to People v. Chamblis, 395 Mich. 408, 418 (1975); where the prosecutor failed to request the trial court to consider any other charge, including lesser included offenses; where the Court did not give defendant notice that any lesser included offenses would be considered; and, where assault with intent to commit murder is not necessarily a lesser included cognate charge of first-degree murder.
II. Whether the Court of Appeals' finding that defendant's convictions found reasonable support in the evidence is clearly erroneous where its conclusions conflict with findings of fact and conclusion and when compared to the body of evidence presented at trial.
III. The Court of Appeals erred in determining that defendant did not request an evidentiary hearing.
IV. Whether the Court of Appeals ignored defendant's discussion set forth in Appellant's Reply Brief.
V. Whether the Court of Appeals erred in failing to consider defendant's Reply Brief in response to the prosecution's Response Brief.
VI. Whether the Court of Appeals violated defendant's due process rights when it voted to affirm defendant's conviction on a basis of facts not made by the trial court.
VII. Whether defendant received inadequate notice of the possibility of being convicted of assault with intent to commit murder, and therefore violated his Sixth Amendment right under the assistance of counsel, and his Fourteenth Amendment right under the United States Constitution to a fair trial and due process of law.
VIII. Whether defendant's convictions should be reversed because inconsistent bench trial verdicts may not stand.
IX. Whether the trial court's amendment of the information during deliberation violated defendant's statutory right to receive a preliminary examination on the added offense, and whether it also created a jurisdiction defect which can be raised at any time.
The Michigan Supreme Court denied leave to appeal. People v. Whitworth, No. 110540 (Mich. Sept. 28, 1998).
Petitioner then filed a motion for relief from judgment in the trial court, presenting the following claim:
The trial court lacked the authority to convict the defendant of assault with intent to murder because neither the charging document nor the action of the trial court gave defendant adequate notice of the need to defend against such a charge.
The trial court denied the motion for relief from judgment. People v. Whitworth, No. 95-13971 (Wayne County Circuit Court Nov. 24, 1999).
Petitioner filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Whitworth, No. 230049 (Mich.Ct.App. May 7, 2001). Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, which was also denied. People v. Whitworth, No. 119558 (Mich. Nov. 30, 2001).
Thereafter, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. The trial court's factual findings on the evidence adduced at trial supports the evidence [sic] was insufficient to render a verdict of guilt on the offense of assault with intent to murder, in violation of Petitioner's Fourteenth Amendment right to due process.
II. Inadequate notice of the charges deprived Petitioner of an opportunity to present a defense in violation of his Sixth and Fourteenth Amendment right to a fair trial.III. Facts
Petitioner's conviction arises out of the shooting death of Landis Davis on November 19, 1995. On that date, at the Blue Note Bar in the city of Detroit, Petitioner and a group of his friends began fighting and arguing with Mr. Davis and a group of his friends. A bouncer, attempting to break up the fight, fired a gun into the air. The two groups then exited the bar.
Maurice Trayler testified that he left the bar when the two groups began fighting. As he was leaving the bar, he saw a car pull up in front of the bar. A woman was driving the car. Mr. Davis walked out of the bar toward the car. Mr. Trayler testified that he saw two men coming toward Mr. Davis and that both men were shooting at Mr. Davis. At trial, Mr. Trayler testified that Petitioner was neither shooter, but admitted that, at a pretrial lineup, he had identified Petitioner as one of the shooters.
Angela Hill testified that, on the night of the shooting, she was at the bar with a number of friends, including Mr. Davis, celebrating her birthday. She testified that, inside the bar, her group of friends and another group of people, which included Petitioner, became engaged in an altercation. Mr. Davis was hit in the face with a glass. Ms. Hill testified that Petitioner and his friends were then thrown out of the bar. Approximately ten minutes later, Ms. Hill left the bar to get her car. She drove the car to the front of the bar. Mr. Davis came out of the bar and was standing by the passenger side of the car, when a person ran toward them from across the street and began shooting. Ms. Hill testified that she ran to an alley. She returned moments later and saw Petitioner standing approximately seven to eight feet from the victim, who was lying on the ground, shooting at him. Ms. Hill further testified that one bullet from the first shooter struck the victim and the other shots fired by the first gunman struck the car.
Dr. Bader Cassin's testimony was entered by stipulation. Dr. Cassin, an expert in forensic pathology, examined the body of Landis Davis and concluded that Mr. Davis died from multiple gunshot wounds.
IV. Analysis
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.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 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) see also Cremeans v. Chanleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
28 U.S.C. § 2254(e)(1) provides, in pertinent part:
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.
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, 120 S.Ct. 1495, 1519-20 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States 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 1521. 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 1521-22
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Sufficiency of the Evidence
Petitioner claims that insufficient evidence was presented at trial to establish beyond a reasonable doubt the assault element of the crime of assault with intent to murder. Respondent argues that this claim is barred from habeas corpus review because it is procedurally defaulted. The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict.United States v. Frady, 456 U.S. 152, 167-69 (1982);Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
This Court begins its analysis of whether Petitioner's claim is procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claim. See Coleman, 501 U.S. at 729-30. The last state court to address Petitioner's claim, the Michigan Supreme Court, denied petitioner leave to appeal because petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Whitworth, No. 119558 (Mich. Nov. 30, 2001). The Sixth Circuit Court of Appeals has held that M.C.R. 6.508(D) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where the rule was in effect at the time of a petitioner's direct appeal. Luberda v. Trippett, 211 F.3d 1004, 1007 (6th Cir. 2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). M.C.R. 6.508(D) was enacted in October 1989. Petitioner was convicted in 1996. Thus, the Court concludes that M.C.R. 6.508(D) was a firmly established procedural rule for purposes of Petitioner's case.
The Sixth Circuit Court of Appeals has also held that even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir. 2000). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked.
Therefore, this Court may not review Petitioner's claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Petitioner fails to assert cause to excuse the default. Instead, he argues that failure to consider this claim will result in a fundamental miscarriage of justice, because he is actually innocent of the crime of assault with intent to murder. The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id.
Petitioner argues that, because the victim was already dead when Petitioner shot him, Petitioner could not have assaulted him. Under Michigan law, a person may not be convicted of assault of a dead person. See People v. Hunter, 209 Mich. App. 280 (Mich.Ct.App. 1995). However, contrary to Petitioner's argument, the trial court, in rendering the guilty verdict, did not find that the victim was dead when Petitioner shot him. Instead, the trial court found that the victim was "down," that is, he was lying on the ground. Petitioner has failed to show that this state court factual finding was clearly erroneous. Therefore, presuming the state court's factual finding in this regard to be correct, the Court finds that Petitioner has failed to make a showing of actual innocence. Accordingly, the sufficiency of the evidence claim is procedurally defaulted.
C. Notice of Charges
Petitioner next claims that he is entitled to habeas corpus relief because he did not receive proper notice of the charge of assault with intent to commit murder, where he was originally charged only with first-degree murder and felony firearm. Respondent argues that this claim is also barred from review by the doctrine of procedural default.
The last state court to address this claim, the Michigan Supreme Court, denied petitioner leave to appeal because petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Whitworth, No. 119558 (Mich. Nov. 30, 2001). As discussed above, M.C.R. 6.508(D) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where, as here, the rule was in effect at the time of a petitioner's direct appeal. Luberda 211 F.3d at 1007, citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). In addition, even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson, 238 F.3d at 408. Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked.
Therefore, this Court may not review petitioner's claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Petitioner fails to assert cause to excuse this default. In addition, Petitioner has failed to establish that failure to consider his claim will result in a fundamental miscarriage of justice where he has not asserted a credible claim of innocence, supported by new reliable evidence not presented at trial, along with his claim of constitutional error. Schlup, 513 U.S. at 321.
Accordingly, this claim is barred from review by the doctrine of procedural default.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.