Opinion
Case No. 01-10304-BC
September 30, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Albert Lawrence Bonier, Jr., presently confined at the Carson City Correctional Facility in Carson City, Michigan, filed this pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his state court convictions for criminal sexual conduct (CSC), kidnapping, and assault. The respondent opposes the habeas petition on the grounds that the petitioner's claims either lack merit or are procedurally defaulted. The Court concludes that the petitioner's first three claims are procedurally defaulted, and his fourth claim lacks merit. Accordingly, the habeas corpus petition will be denied.
I.
On January 22, 1998, the petitioner was convicted in Wayne County, Michigan of three counts of first-degree CSC involving a weapon, Mich. Comp. Laws § 750.520b(1)(e), three counts of CSC involving personal injury to the victim, Mich. Comp. Laws § 750.520b(1)(f), one count of kidnaping, Mich. Comp. Laws § 750.349, two counts of assault with intent to commit CSC, Mich. Comp. Laws § 750.520g, and one count of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84. The trial court sentenced the petitioner as a habitual offender, fourth offense, to concurrent terms of twenty to forty years in prison for the CSC and kidnapping convictions and five to ten years for the assault convictions.
The petitioner appealed his convictions to the Michigan Court of Appeals where he alleged that:
I. The trial court judge abused his discretion and created reversible error when he decided the prosecution had exercised due diligence in the police officers attempt to subpoena Betty Beard and William Harrison as witnesses for the defendant.
II. The sentencing judge violated the principle of proportionality when he sentenced defendant-appellant to 20-40 years in prison on the CSC and kidnapping convictions.
In supplemental briefs, the petitioner alleged that the trial court deprived him of his Sixth Amendment right to represent himself, that he personally did not consent to waiving production of the doctor who examined the complainant after the assault, and that his trial attorney's failure to obtain the petitioner's personal waiver of production of the doctor constituted ineffective assistance. On March 31, 2000, the Michigan Court of Appeals affirmed the petitioner's convictions and sentence in an unpublished per curiam opinion. See People v. Bomer, No. 211359 (Mich.Ct.App. Mar. 31, 2000).
In an application for leave to appeal in the Michigan Supreme Court, the petitioner challenged his sentence. He also alleged that he was denied his right to represent himself and that he did not waive production of the examining doctor. Among the new issues raised in the supreme court were claims that (1) the petitioner could not be guilty of three counts of CSC with a weapon and three counts of CSC without a weapon, (2) the petitioner was taken by force from his home without an arrest warrant and held for five days before his arraignment, and (3) the jury was never asked to render a verdict on the habitual offender charge. On September 26, 2000, the Michigan Supreme Court denied leave to appeal. See People v. Bomer, 463 Mich. 877, 618 N.W.2d 593
(2000). On December 27, 2000, the Michigan Supreme Court denied the petitioner's motion for reconsideration. See People v. Bomer, 620 N.W.2d 853 (Mich. 2000).
The petitioner subsequently filed a motion for relief from judgment, copying the amended motion for reconsideration that he had filed in the Michigan Supreme Court. He alleged that: (1) he was deprived of his right to represent himself; (2) production of a res gestae witness was improperly waived; (3) the trial court abused its discretion in deciding that the prosecution had exercised due diligence in attempting to produce two witnesses; (4) he was arrested in his home without a warrant and absent exigent circumstances; (5) the police and prosecution suppressed crucial evidence; and (6) his appellate attorney rendered ineffective assistance. The trial court determined that it was barred from reviewing the first three claims because those claims were decided on direct appeal. As for the other claims, the trial court stated that the petitioner failed to establish cause for not raising the new claims on appeal and that the petitioner's claim about appellate counsel lacked merit. Accordingly, the trial court denied the petitioner's motion. See People v. Bomer, No. 97-4778 (3d Judicial Cir. Ct. Aug. 27, 2001).
The petitioner appealed the trial court's decision to the Michigan Court of Appeals, which dismissed the appeal "for failure to pursue the case in conformity with the rules." People v. Bomer, No. 237072 (Mich.Ct.App. Dec. 21, 2001). On June 24, 2002, the Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Bomer, 466 Mich. 885, 646 N.W.2d 471 (2002). On September 30, 2002, the Michigan Supreme Court denied reconsideration.
Finally, on August 4, 2001, the petitioner filed his habeas corpus petition, which raises four claims: (1) the petitioner was illegally arrested in his home without a warrant and held for five days without being arraigned on any charges; (2) he was improperly convicted of three counts of CSC with a weapon and three counts of CSC without weapon; (3) according to the pre-sentence report, he was convicted by jury of being a habitual offender one day after the jury was dismissed; and (4) he was denied his right to effective assistance of counsel and the right to represent himself.
Because the petitioner alleged that he was still waiting for a decision on a motion for new trial, this Court conditionally dismissed the habeas petition without prejudice for failure to exhaust state remedies. The petitioner then moved for reconsideration. The Court granted his motion, reinstated the case, and ordered the respondent to answer the habeas corpus petition. On April 9, 2003, the respondent filed an answer in opposition to the habeas petition on the grounds that the petitioner's first three claims are procedurally defaulted and his final claim lacks merit.
II. A.
The first habeas claim alleges that the petitioner was taken from his home at gunpoint without an arrest warrant and then held for five days without an arraignment on any charges. The respondent argues that this claim is procedurally defaulted.
A procedural default in the habeas context is "a critical failure to comply with state procedural law. . . . Trest v. Cain, 522 U.S. 87, 89 (1997). The doctrine of procedural default provides that,
[i]n 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).
In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit set forth a four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review. Courts must determine whether: (1) there is a state procedural rule applicable to the petitioner's claim and whether the petitioner failed to comply with that rule; (2) the state courts actually enforced the rule; and (3) the procedural rule is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim; and (4) the petitioner has shown cause for not complying with the procedural rule and actual prejudice from the alleged constitutional error. Id. at 138.
One of the procedural rules in question here is Michigan Court Rule 6.508(D)(3), which prohibits courts from granting relief from judgment if the defendant
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence . . . unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal . . ., and
(b) actual prejudice from the alleged irregularities that support the claim for relief.
Mich. Ct. R. 6.508(D)(3) (effective October 1, 1989).
The trial court declined to review the substantive merits of the petitioner's first habeas claim because, in its opinion, the petitioner did not raise the claim on appeal and he did not satisfy the "cause and prejudice" requirement of Rule 6.508(D). A review of the record, however, indicates that, although the petitioner did not raise the claim in the appeal of right before the Michigan Court of Appeals, he did raise the claim in a subsequent application for leave to appeal in the Michigan Supreme Court.
Even if Rule 6.508(D) was not an adequate basis for the trial court's ruling, a procedural default occurred when the petitioner subsequently attempted to raise his claim in the Michigan Court of Appeals. The court of appeals notified the petitioner that his application was defective because it was not accompanied by: (1) five copies of his application conforming to Michigan Court Rule 7.212(C); (2) five copies of the trial court's opinion denying his motion for relief from judgment; (3) a proof of service; (4) the filing fee or five copies of a motion to waive the fees; and (5) a copy of the relevant parts of the trial transcript. The court of appeals gave the petitioner twenty-one days to conform his application to the rules. When he failed to correct the deficiencies in a timely manner, the court dismissed his application for failure to pursue his case in conformity with the Michigan Court Rules.
The applicable court rules were in effect long before the petitioner applied for leave to appeal, and the Michigan Supreme Court did not set aside the procedural bar in order to decide the case on the merits. It merely denied leave to appeal. Thus, in order for this Court to review the petitioner's first claim, he must show cause for not conforming to the Michigan Court Rules and actual prejudice. The same analysis would apply if the Court concluded that the petitioner did not exhaust state remedies for his first claim. The doctrine of exhaustion of state remedies requires state prisoners to present their constitutional claims to the state courts before raising the claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied when a prisoner invokes one complete round of the State's established appellate review process, including a discretionary appeal to a state supreme court if that review is part of the ordinary appellate review procedure in the state. O'Sullivan, 526 U.S. at 845. This means that state prisoners in Michigan must raise their habeas claims in the Michigan Court of Appeals and in the Michigan Supreme Court before presenting their claims to the federal court in a habeas corpus petition. See Dombkowski v. Johnson, 488 F.2d 68, 70 (1973).
The petitioner did not properly raise his first claim in the Michigan Court of Appeals, and presentation of the claim in the Michigan Supreme Court was insufficient to satisfy the exhaustion requirement. Castille v. Peoples, 489 U.S. 346, 351 (1989). Because the petitioner no longer has an available state remedy to exhaust, his claim must be deemed procedurally defaulted. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
The petitioner has not alleged "cause and prejudice" in connection with his first claim. Because he has failed to advance any argument in support of a finding of cause and prejudice, the argument must be deemed abandoned. Roberts v. Carter, 337 F.3d 609, 613 (6th Cir. 2003) (citing United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)).
"[E]ven without a demonstration of cause and prejudice, a federal habeas petitioner may obtain review of defaulted claims by showing the failure to conduct such review will result in a `fundamental miscarriage of justice.'" Gulertekin v. Tinnelman-Cooper , 340 F.3d 415, 426 (6th Cir. 2003) (quoting Coleman , 501 U.S. at 750). See also Murray v. Carrier , 477 U.S. 478, 496 (1986) ("[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."). The exception for miscarriages of justice does not apply here because the petitioner has not shown that, in light of some new and reliable evidence no reasonable juror would have voted to find him guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 329 (1995). Therefore, the doctrine of procedural default bars substantive review of the petitioner's first claim.
The claim has no merit even if it were not procedurally defaulted. The Fourth Amendment component of the claim is not a cognizable claim on habeas review because the petitioner had a full and fair opportunity to raise the claim in state court. See Stone v. Powell, 428 U.S. 465, 481-82 (1976) (holding that, when "the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial").
And although a delay in an arraignment of more than forty-eight hours may be unreasonable, Riverside v. McLaughlin, 500 U.S. 44 (1991), the petitioner "has failed to demonstrate that the timing of his arraignment ha[d] any bearing on the question of his guilt or innocence." In re Siggers, 132 F.3d 333, 338 (6th Cir. 1997). Moreover, the alleged error does not "fall into the `limited class of fundamental constitutional errors . . . that defy analysis by harmless error standards and require automatic reversal.'" United States v. Fullerton, 187 F.3d 587, 591 (6th Cir. 1999) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)). Any error was harmless given the strength of the evidence against the petitioner.
B.
The second habeas claim implies that the petitioner was improperly convicted of committing three counts of first-degree CSC with a weapon and another three counts of first-degree CSC without a weapon. The petitioner maintains that he either had a weapon or he did not have a weapon, and the jury could not find him guilty of CSC being armed and not armed at the same time.
The third habeas claim pertains to the pre-sentence report and the petitioner's conviction as a habitual offender. According to the petitioner, the pre-sentence report indicates that he was convicted of being a habitual offender by a jury on January 23, 1998. The petitioner notes that the jury was dismissed on January 22, 1998, and a new jury was not selected to hear the habitual offender charge on January 23, 1998.
The second and third claims were raised as new issues in the Michigan Supreme Court on direct review of the petitioner's conviction. The petitioner has never raised these claims in the Michigan Court of Appeals as required by the doctrine of exhaustion of state remedies. O'Sullivan, 526 U.S. at 845; Dombkowski, 488 F.2d at 70. His only post-appeal remedy is to file another motion for relief from judgment in the trial court, but the Michigan Court Rules bar successive motions for relief from judgment. See Mich. Ct. R. 6.502(G). The only exceptions to the rule (a retroactive change in the law or a claim of new evidence) are not applicable here. The Court therefore deems the exhaustion requirement satisfied. The second and third habeas claims are procedurally defaulted, as opposed to unexhausted, because the petitioner no longer has an available remedy to exhaust. Rust, 17 F.3d at 160. The Court may adjudicate the petitioner's unexhausted claims only if he can show cause for not raising his claims at all levels of state court review and actual prejudice or that a constitutional violation probably resulted in the conviction of an innocent person. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Rust, 17 F.3d at 160-62.
The petitioner appears to allege in a reply to the responsive pleading that his court-appointed appellate attorney was "cause" for not raising his second and third claims in the Michigan Court of Appeals. Ineffective assistance of counsel is "cause" for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, "[i]f [the petitioner] can show that he received ineffective assistance of appellate counsel that rose to the level of a violation of his Sixth Amendment rights, it would excuse his procedural default." Martin v. Mitchell, 280 F.3d 594, 605 (6th Cir.), cert. denied, 537 U.S. 1004 (2002), and cert. denied, 123 S.Ct. 2601 (2003).
To prevail on a claim of ineffective assistance of appellate counsel, the petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, 529 U.S. 446 (2000). The deficient-performance prong of this test "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The prejudice prong of the test requires showing "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. The Court will now consider the petitioner's claims to determine whether appellate counsel should have raised the claims on appeal.
1.
The petitioner's second claim challenges the six convictions for first-degree CSC. The petitioner maintains that he either had a weapon or he did not have a weapon, and he should not have been convicted of three counts of CSC with a weapon and three counts of CSC without a weapon.
The CSC statute provides that sexual penetration accompanied by any one of eight circumstances is punishable as first-degree CSC. Mich. Comp. Laws § 750.520b(1); People v. Rogers, 142 Mich. App. 88, 91, 368 N.W.2d 900, 901 (1985). Each of the eight circumstances may provide a basis for prosecution and elevates the conduct from a lesser sexual conduct offense to first-degree CSC. Rogers, 142 Mich. App. at 91, 368 N.W.2d at 901-02.
The prosecutor established at trial that the petitioner sexually penetrated the complainant at least ten times and forced her to comply by putting a knife to her throat, by beating her, and by stabbing her in the leg. Although the aggravating circumstances for three of the acts may have differed from the aggravating circumstances for three other acts, each sexual penetration was the basis for a separate conviction. The prosecutor was permitted to proceed under different theories. Id. at 90, 368 N.W.2d at 901. Therefore, appellate counsel was not ineffective for failing to assert the petitioner's claim about his six convictions for first-degree CSC.
2.
The third habeas claim concerns an alleged notation in the pre-sentence report that the petitioner was convicted by jury on January 23, 1998 of being a habitual offender. The petitioner contends that this was impossible because his jury was excused on January 22, 1998, and no jury was selected on January 23, 1998, to decide the habitual offender charge.
The record before the Court indicates that, after the jury announced its verdict and was excused on January 22, 1998, the petitioner admitted that his criminal record included three prior convictions. The trial court then made a finding that the petitioner was a fourth habitual offender. Tr. Jan. 22, 1998, at 36. The petitioner does not deny that he is a habitual offender, only that the pre-sentence report mistakenly stated that a jury decided the habitual offender issue on January 23, 1998. The alleged errors were minor discrepancies in the record, which had no bearing on the petitioner's sentence. Therefore, appellate counsel was not ineffective for failing to assert the alleged errors on appeal.
3.
The Court concludes that appellate counsel's failure to raise the petitioner's second and third claims on appeal did not amount to ineffective assistance of counsel. Therefore, the petitioner has not established "cause" for his failure to raise his second and third claims at all levels of state court review.
The Court need not determine whether the petitioner was prejudiced by the alleged violations of federal law, because he has not shown "cause." Smith v. Murray, 477 U.S. 527, 533 (1986). And, as previously explained, the exception for miscarriages of justice is not applicable here. Thus, the petitioner's second and third habeas claims are procedurally defaulted and barred from further review.
C.
In his fourth and final claim, the petitioner alleges that he was denied effective assistance of trial counsel and was deprived of his constitutional right to represent himself. To the extent that the petitioner is raising an independent ineffective-assistance claim based on his attorney's failure to talk to witnesses, the claim is procedurally defaulted. The petitioner has not exhausted state remedies for this claim, and the claim must be deemed procedurally defaulted because there is no available remedy to exhaust. See infra section II.B.
The petitioner's claim regarding denial of his right to represent himself is reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act 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. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, 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 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 Supreme Court has held that the Constitution guarantees a defendant in a state criminal trial the right to represent himself and to proceed without counsel when the defendant voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 807 (1975). The defendant's request to represent himself must be unequivocal. Faretta, 422 U.S. at 835; United States v. Martin, 25 F.3d 293, 295 (6th Cir. 1994). In addition, the defendant must be "voluntarily exercising his informed free will." Faretta, 422 U.S. at 835.
The petitioner claimed on appeal that the trial court's refusal to permit him to represent himself "would appear to be evident" from transcripts of proceedings held on December 4, 1997, and on January 9, 1998. The Michigan Court of Appeals stated that the petitioner had waived any claim of error with regard to the December 4, 1997 proceeding because he failed to provide the court with a copy of the transcript. The court of appeals summarized the rest of the record as follows:
The lower court file contains a number of handwritten documents prepared by defendant, which are either letters written to the trial judge or documents captioned as motions. In a handwritten letter dated November 21, 1997, defendant made a request to represent himself; however, at the bottom of the letter is the handwritten notation, "Withdrawn by deft," accompanied by a date stamp of December 4, 1997. A handwritten document dated December 1, 1997, entitled "Motion for Court Order More Law Library Time," petitions the trial court to issue an order giving him greater access to the law library at the Wayne County Jail so he can prepare to defend himself at trial. In a third handwritten document, also dated December 1, 1997, and titled "Motion for Additional Discovery," defendant stated: "Mr. James Albulov will under no circumstances be representing me for anything in this case. The man is a li[a]r and I never want to see him again."
At the January 9, 1998, hearing, defendant was represented by Albulov. There are no references in the transcript to defendant's request to represent himself. During the hearing on January 15, 1998, the trial court mentioned various motions that defendant had filed, namely, a motion to dismiss because of the lack of a speedy trial, a motion to have his vehicle released, a motion to dismiss because defendant had been held for seventy-two hours, and a motion for a Wade hearing, all of which were denied. The court did not refer to any motion regarding a request to proceed without counsel, and neither defendant nor defense counsel raised the issue.Bomer, Mich. Ct. App. No. 211359, at 2-3 (footnote in original).
United States v. Wade, 388 U.S. 218 (1967).
This summary of the record indicates that the petitioner's requests to represent himself were resolved on December 4, 1997. The petitioner was not present at the court proceeding held on January 9, 1998, and the transcript of that proceeding does not include any reference to the petitioner wanting to represent himself. The record before this Court, unlike the record before the Michigan Court of Appeals, includes the transcript of the proceeding on December 4, 1997. The petitioner initially stated at the proceeding on December 4, 1997, that he wanted to represent himself because he could no longer trust his attorney. The trial court responded by reminding the petitioner of the seriousness of the charges and by explaining the dangers and difficulties of representing oneself. The petitioner's attorney subsequently noted that the petitioner had filed a grievance against him. The following conversation occurred near the conclusion of the proceeding:
THE COURT: Mr. Bonier, did you withdraw your grievance? THE DEFENDANT: Yes, sir.
THE COURT: And, Mr. Albulov [defense counsel], you'll remain on the case. There are motions you want to file.
MR. ALBULOV: I'll stay on. Well, it's up to Mr. Bonier I mean.
THE DEFENDANT: Yes, I'll listen to the Judge. The Judge is right about that.
Tr.Dec. 4, 1997, at 11.
The Michigan Court of Appeals determined on review of the petitioner's claim that the petitioner had not demonstrated an unequivocal request to represent himself. Although the Michigan Court of Appeals did not mention Faretta in its opinion, it relied on state court decisions that cite Faretta. This conclusion is supported by the transcript of the December 4, 1997 hearing. None of the other transcripts of the state court proceedings contains a reference to the petitioner's request to represent himself. Therefore, the state court's decision was not an unreasonable application of Faretta, and the petitioner has no right to habeas relief on the basis of his fourth and final claim.
III.
The first three claims of the petitioner's application for a writ of habeas corpus are procedurally defaulted and his fourth claim lacks merit. The petitioner has not established that he is presently in custody in violation of the Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion to have the Michigan Attorney General show that the petitioner was given a jury trial [dkt # 12], motion to show cause why the respondent transferred the petitioner [dkt #19], and motion for sanctions [dkt #21] are DENIED as moot.