Opinion
Case Number 04-10037-BC.
February 24, 2005
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Rodney Wilcox, presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of assault with intent to commit armed robbery in the Oakland County, Michigan circuit court and sentenced to imprisonment for thirty to sixty years. The petitioner alleges that he is incarcerated in violation of his constitutional right to the effective assistance of counsel. The respondent has filed an answer to the petition asserting that the claim lacks merit because the decision of the Michigan Court of Appeals did not result in an objectively unreasonable application of clearly established Supreme Court law. The Court agrees, and therefore, the petition will be denied.
I.
The petitioner was convicted after a joint trial with co-defendants Jamol Garrett and Marcel Williams. The Oakland County circuit court empaneled a separate jury to consider the petitioner's guilt. All three defendants were convicted of assault with intent to rob while armed in violation of Michigan Compiled Laws Section 750.89. The convictions arose from an attack on the owner of a party store in Southfield, Michigan. As explained by the Michigan Court of Appeals,
There was evidence that the victim, the owner of the party store involved in this crime, was familiar with defendant Wilcox as a regular customer and knew his name because he worked at a nearby establishment. On the day of the incident, defendant Wilcox went into the store approximately five or six times. It is undisputed that defendant Wilcox again entered the store about 7:00 pm with the two codefendants. Defendant Wilcox asked for two cases of a specific type of beer, which caused the victim to leave the bullet-proof, plexiglass encased area to retrieve an empty box and additional beer from a back cooler. The victim gave defendants the empty box to load beer from the customer cooler, but they did not load any bottles. When the victim returned and indicated that he had enough beer to fill only one case, codefendant Garrett asked for a different type of beer. When the victim left to go to the back cooler, codefendants Garrett and Williams followed him, each carrying two forty-ounce bottles of beer. The victim walked out of the cooler carrying a case of forty-ounce bottles of beer. After he passed the codefendants, he was struck with the four beer bottles. He fell after the first blow, but regained his feet. As the victim ran towards the front door in an attempt to escape codefendants Garrett and Williams, he saw defendant Wilcox running away from the direction of the door towards the back of the store. When the victim made it to the front door, it had been locked. The victim testified that codefendant Garrett then stabbed him several times and demanded money. The victim ultimately was able to unlock the door and run out of the store, bleeding and badly hurt, when he was again stabbed by Garrett. Defendants ran from the store simultaneously, and were apprehended shortly thereafter, approximately two miles from the scene.People v. Wilcox, No. 225657, at 2-3 (Mich.Ct.App. June 25, 2002).
The prosecutor's theory was that the petitioner aided and abetted his co-defendants by locking the front door of the store and luring the victim out of the bullet-proof area. The petitioner argued that he was not guilty of the charged crime because he was merely present during the assault, did not aid or abet the co-defendants, and he lacked the necessary intent.
The trial court sentenced the petitioner as an habitual offender, third offense, to imprisonment for thirty to sixty years. The petitioner raised his present habeas claim on appeal to the Michigan Court of Appeals, which affirmed his conviction in an unpublished per curiam opinion. See id. at 2. The petitioner raised the same claim in the Michigan Supreme Court, which denied leave to appeal on January 31, 2003. See People v. Wilcox, 467 Mich. 951; 656 N.W.2d 532 (2003) (table). The petitioner signed and dated his habeas corpus petition on January 25, 2004. He asserts that he was denied a fair trial because his trial attorney was constitutionally ineffective. The respondent argues that the petitioner's claim has no factual support.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas raising the question of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins v. Smith, 539 U.S. at 521 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)) (internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) ("All factual findings by the state court are accepted by this Court unless they are clearly errorneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams, 529 U.S. at 405-06.
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410-11. See also McAdoo v. Elo, 365 F.3d 487, 493 (6th Cir.), cert. denied, ___ U.S. ___, 125 S. Ct. 168 (2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc), cert. denied, ___ U.S. ___, 124 S. Ct. 1601 (2004); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
In his sole habeas claim, the petitioner alleges that his attorney should have moved for a mistrial when the police officer in charge of his case testified that the petitioner's clothes were not submitted for chemical analysis due to a co-defendant's comment and because it would have been a waste of investigative efforts and taxpayers' money. The petitioner contends that the officer's comment was equivalent to saying that the police had already found the guilty men. The petitioner further contends that, because the facts against him were circumstantial and because juries hold police officers in high esteem, the officer's comment could have convinced the jury that the petitioner was guilty.
The two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), governs this Court's analysis. Towns v. Smith, 395 F.3d 251, 258, Nos. 03-1988/2030, 2005 WL 27148, at *6 (6th Cir. 2005). To show a violation of the right to effective assistance of counsel, a petitioner must establish that his attorney's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. An attorney's performance is deficient if "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
An attorney's deficient performance is prejudicial if "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. The defendant must show "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. Unless the petitioner demonstrates both deficient performance and prejudice, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
The Michigan Court of Appeals adjudicated the petitioner's claim on the merits as follows:
[D]efendant Wilcox claims that trial counsel was ineffective when he failed to move for a mistrial after a police witness testified that defendant Wilcox's clothing was not submitted for serological testing because it would be a waste of investigative efforts and taxpayer's [sic] money¹, and because codefendant Garrett had already made statements placing himself at the scene.
¹ This is a misstatement of the record. The reference to taxpayer money and investigative time was to the failure to have Garrett's clothing tested.
Because defendant Wilcox failed to make a testimonial record in the trial court, in connection with a motion for a new trial or an evidentiary hearing, this Court's review of this issue is limited to mistakes apparent on the record. People v. Sabin, ( On Second Remand), 242 Mich. App. 656, 658-59, 620 N.W.2d 19 (2000). If the record does not contain sufficient detail to support defendant's ineffective assistance claim then he has effectively waived the issue. Id. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v. Effinger, 212 Mich. App. 67, 69; 536 N.W.2d 809 (1995). To establish ineffective assistance of counsel, a defendant must show that counsel's performance was below an objective standard of reasonableness under prevailing norms and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Id. A defendant must also overcome the presumption that the challenged action or inaction was trial strategy. People v. Johnson, 451 Mich. 115, 124; 545 N.W.2d 637 (1996).
We conclude that there was no basis for trial counsel to move for a mistrial where, contrary to defendant's claim, the police witness' response did not implicate him nor disclose any inculpatory information about him.² Here, the challenged response pertained to codefendant Garrett only. Further, the same witness testified that there were no visible dark red stains on defendant Wilcox's pants. Moreover, defendant Wilcox did not deny being present in the store during the assault on the owner. "Trial counsel is not required to advocate a meritless position." People v. Snider, 239 Mich. App. 393, 425; 608 N.W.2d 502 (2000). Therefore, defendant Wilcox is not entitled to a new trial on this basis. Effinger, supra.
² "A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial." People v. Haywood, 209 Mich. App. 217, 228; 530 N.W.2d 497 (1995) (citations omitted).Wilcox, Mich. Ct. App. No. 225657, at 3-4 (footnotes in original).
The state court's conclusion that the police officer's response did not implicate the petitioner nor disclose any inculpatory information about him is supported by the record. The officer who arrested co-defendant Jamol Garrett testified that he submitted Garrett's pants as evidence because there was a dried red stain in one of Garrett's pants pocket. Tr. Dec. 6, 1999, at 171. On the following day, evidence technician Michelle Kuzila testified that she would be able to determine through tests whether there was blood on a pair of pants or shoes, but no pants, shoes, shirts, or hats were submitted to her. Tr. Dec. 7, 1999, at 37. The trial court later asked Sergeant Kuzila whether checking a suspect's clothes, shoes, and hands is something that is normally done. Kuzila answered that the answer depended on the type of case and the information gathered. She stated that checking would be unnecessary if the evidence would not provide additional value to the investigation. When the trial court asked why the suspects' pants were not analyzed for blood, Kuzila stated that she could not answer that question because she did not investigate the case. Id. at 42-43.
The investigating officer, Detective James Dziedzic, was the next witness. After a few preliminary questions, the prosecutor engaged in the following colloquy with Dziedzic:
Q [by prosecutor M. Kimberly Brown] You've been sitting here throughout the whole trial?
A [by Detective Dziedzic] Yes.
Q And you have heard the testimony with respect to the defendants' clothing?
A Yes.
Q And with respect to a — on the inside right pocket of defendant Garrett's pants?
A Yes.
Q Do you have an answer as to why, was there any visible blood on either defendant Williams or defendant Wilcox's clothes?
A No.
Q And could that be why they weren't submitted for testing?
MR. CATALDO [Counsel for co-defendant Jamol Garrett]: Your Honor, I would simply object to the form of the question that there is a conclusion that it's dry blood. There's absolutely no proof of that. I think she could use the term dark red stain or red stain. But, not dry blood.
MS. BROWN: I'm sorry. I don't even remember the question I thought I used that phrase, but.
MR. CATALDO: You did the first time. The second time you didn't.
BY MS. BROWN:
Q Is there a reason why defendant Williams or defendant Wilcox's clothes were not submitted for further testing?
A There's a reason why none of it, none of the clothing was submitted for testing.
Q With respect to defendant Williams and defendant Wilcox, there was no visible dark red stains —
A Correct.
Q Which caused you to suspect that it may be blood?
A Yes.
Q And with respect to defendant Garrett, there was a dark red —
MR. CATALDO: The question's leading, your Honor, objection.
BY MS. BROWN:
Q What was found, if anything on defendant Garrett's pants?
A A dark red stain.
MR. CATALDO: I would ask the foundation. If he's seen it, if he viewed it, if he investigated it and saw it or is he just reading from the course. Therefore, it would be hearsay.
BY MS. BROWN:
Q You became aware of it as the investigating officer in this case?
A Yes, I did.
Q And based on your investigation, is there a reason as to why defendant Garrett's pants were not submitted for any testing?
A Yes, there is.
Q What is that reason?
A The reason being it would be a waste of investigative efforts and taxpayers['] money to submit that for serological testing because defendant Garrett had made some statements that put him at the scene.
Q And —
A Also, regarding the dark red stain that was reported on the pants, there was no indication in the reports and the discussions I've had with the officers at the scene that any of the defendants were injured.Id. at 46-49 (emphasis added).
Detective Dziedzic's testimony suggests that the petitioner's clothing was not tested because it contained no suspected blood stains. The disputed comment about serological testing being a waste of investigative efforts and taxpayers' money was made in reference to co-defendant Jamol Garrett's pants. The Michigan Court of Appeals correctly recognized that the remark pertained to co-defendant Garrett only and not the petitioner.
The comment that Jamol Garrett had made some statements that put him at the scene was not prejudicial, because the petitioner did not dispute being present during the assault. In fact, his defense was that he was merely present when the assault occurred. Moreover, the victim knew the petitioner as a customer and testified that the petitioner was one of three men present in the store during the assault. In the words of the state appellate court:
[A] rational trier of fact could have concluded that defendant Wilcox assisted in the crime in light of his actions and association with the codefendants. Defendant Wilcox was familiar with the store, went into the store on several occasions on the day of the incident, and made a request that caused the victim to leave the enclosed area of the store. Further, it can be inferred that defendant Wilcox was the person who locked the front door of the store preventing the victim from escaping while the codefendants attacked the victim. In addition, defendant Wilcox came into the store with the codefendants, stayed in the store while the codefendants tackled the victim, left the crime scene with the codefendants, and was with them when they were apprehended two miles from the scene.Wilcox, Mich. Ct. App. No. 225657, at 3.
Detective Dziedzic's comment about serological testing being a waste of effort and money was not a reference to the petitioner's clothing, and the comment about a co-defendant's admission did not prejudice the petitioner. Therefore, defense counsel was not ineffective for failing to move for a mistrial on the basis of Dziedzic's comment. Attorneys are not ineffective when they fail to interpose objections or raise issues that lack merit. See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). Because defense counsel's performance was not deficient or prejudicial, the state court's implicit conclusion that the petitioner's attorney did not contravene or unreasonably apply Strickland or any other Supreme Court precedent.
III.
The decision of the state court of appeals affirming the petitioner's conviction was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). Furthermore, the state court's findings of fact, presumed correct on habeas review, are supported by the trial record. See 28 U.S.C. §§ 2254(d)(2) and (e)(1).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #3] is DENIED.