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holding that jury instruction advising jurors they were required to decide facts on basis of properly admitted evidence mitigated prosecutor's civic duty argument
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Case No. 99-CV-74906-DT
January 4, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is before the Court on petitioner Duncan Edward Cameron's pro se habeas corpus petition under 28 U.S.C. § 2254. Petitioner is a state inmate currently confined at the Muskegon Correctional Facility in Muskegon, Michigan.
In 1995, Petitioner and his co-defendant, Jeffrey McCullough, were tried jointly in Oakland County Circuit Court. On May 22, 1995, the jury convicted both men of first-degree criminal sexual conduct, MICH. COMP. LAWS ANN. § 750.520b; MICH. STAT. ANN. § 28.788(2). The convictions arose from charges that the two defendants and a third man, Michael MacKay, raped the complainant in Petitioner's apartment. The trial court summarized the facts as follows:
On the evening of June 12, 1994, Jeffrey McCullough, Duncan Edward Cameron, and Michael Matthew MacKay were driving in a car. They offered a ride to the complainant, a female who was walking alone at night in the rain along M-59. She accepted the offer and agreed to go with them to Cameron's apartment to have a drink. There was evidence that MacKay slipped some of McCullough's prescription medication into the complainant's drink. Subsequently, MacKay lured the complainant into a bedroom where he held her down and raped her. At different times, both McCullough and Cameron entered the room and also had forcible sexual contact with the complainant.
The three men were all charged with First Degree [Criminal Sexual Conduct]. Michael MacKay pled guilty to two Counts of Second Degree [Criminal Sexual Conduct], while [McCullough] and Mr. Cameron were tried together to a jury. The same retained counsel represented both of them at trial, and their joint defense was that the complainant consented to all acts by all three men, and that she voluntarily ingested the drugs.People v. McCullough, No. 95-137267 FC (Oakland County Cir. Ct. Aug. 22, 1996) (filed in this case as Appendix B of Petitioner's Appendix in the United States District Court, Eastern District of Michigan, Southern Division.
Petitioner has filed two appendices. The quoted summary of facts is found in the appendix filed on October 7, 1999. A second appendix was filed on July 5, 2000, and is titled "Petitioner's Appendix to Respondent's Answer in Opposition to Petitioner's Petition for Writ of Habeas Corpus."
The trial court sentenced Petitioner to a term of eight to twenty years in prison. The court then vacated that sentence and sentenced Petitioner as a habitual offender to the same amount of time (eight to twenty years) in prison.
The Michigan Court of Appeals found no merit in most of Petitioner's appellate claims. The court nevertheless remanded Petitioner's case for an evidentiary hearing on whether defense counsel refused to permit either defendant to testify or plead guilty unless both defendants testified or pleaded guilty. See People v. Cameron, No. 191612 (Mich.Ct.App. Nov. 4, 1997).
On remand, the trial court held an evidentiary hearing and concluded that defense counsel was not ineffective. The Michigan Court of Appeals agreed with the trial court and affirmed the trial court's holding. See People v. Cameron, No. 191612 (Mich.Ct.App. June 19, 1998). The Michigan Supreme Court denied leave to appeal. See People v. Cameron, No. 112801 (Mich.Sup.Ct. Apr. 27, 1999).
On October 7, 1999, the Clerk of this Court filed Petitioner's habeas petition, which alleges four grounds for relief. Respondent asserts in an answer to the petition that Petitioner did not fairly present all his claims to the Michigan Court of Appeals and, therefore, has not exhausted state remedies for his claims. Having reviewed the pleadings and the state court record, the Court concludes that Petitioner's claims do not warrant habeas relief. Accordingly, the Court will proceed to analyze Petitioner's claims rather than dismiss the petition on exhaustion grounds. 28 U.S.C. § 2254 (b)(2).
II. Discussion
A. General Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA "places a 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, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim on the merits —
(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)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] 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." Id. at 1521.
B. Alleged Conflict of Interest
Attorney Howard Siegrist represented both Petitioner and Jeffrey McCullough at trial. Petitioner contends that he repeatedly attempted to notify the trial court that a conflict of interest existed. He claims that he was deprived of a fair trial and the effective assistance of counsel because the trial court failed to investigate the conflict of interest.
1. Violation of State Law
The Michigan Court of Appeals agreed with Petitioner that the trial court did not comply with Michigan Court Rules regarding joint representation. In the state court's opinion,
[n]either the judge nor defense counsel stated on the record their reasons for believing that the joint representation would not cause a conflict of interest as required under MCR 6.005(F)(1) and (3). Moreover, the judge violated MCR 6.005(G) by failing to determine whether a conflict of interest existed during trial, despite the fact that McCullough repeatedly indicated to the court that he was dissatisfied with defense counsel's performance.Cameron, No. 191612 (Mich.Ct.App. Nov. 4, 1997), at 2.
The trial court's violations of state court rules are not grounds for habeas relief. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). The Court may grant habeas relief only on the ground that the Petitioner is in custody in violation of federal law. 28 U.S.C. § 2254 (a).
2. The Federal Constitutional Issue
Petitioner maintains that the trial court failed to meets its constitutional obligation to determine whether he was receiving the effective assistance of counsel unfettered by conflicting interests. Petitioner alleges that the trial court's failure to make an inquiry into the conflict of interest deprived him of a loyal attorney.
Petitioner relies on Holloway v. Arkansas, 435 U.S. 475 (1978), in which the Supreme Court recognized "that a lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment. . . . Holloway requires state trial courts to investigate timely objections to multiple representation." Cuyler v. Sullivan, 446 U.S. 335, 345-346 (1980). The Supreme Court concluded in Sullivan, however, that the Sixth Amendment does not impose an affirmative duty to inquire into the propriety of multiple representation in every case. Id. at 346-48.
Defense counsel informed the district court at the preliminary examination in this case that he was representing both defendants. The district court asked whether defense counsel had explained to the defendants that there may be a conflict. Defense counsel responded that he had discussed the matter on more than one occasion and that he was not aware of a conflict. See PE at 3-4.
For purposes of this opinion, "PE" refers to the transcript of Petitioner's preliminary examination; "T" refers to the seven-volume transcript of Petitioner's trial; and "EH" refers to the evidentiary hearing on remand from the Michigan Court of Appeals.
A similar discussion occurred on the first day of trial. The trial court asked defense counsel whether counsel had informed the defendants about the problems associated with joint representation. Defense counsel said that the issue was discussed previously and that the defendants did not believe there was a conflict between themselves. Defense counsel then informed the defendants on the record that a conflict can arise when an attorney represents more than one defendant, making it more prudent for each defendant to have his own attorney. Both Petitioner and his co-defendant stated that they had discussed the matter with defense counsel more than one time. Petitioner said that he had no problem with defense counsel representing both him and his co-defendant. The trial court opined that it is always best to have separate attorneys, but Petitioner reassured the court that he was not asking for his own attorney. See T I at 10-14.
Because Petitioner raised no objection at trial, he is required to demonstrate "that an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 350; United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996). As the Michigan Court of Appeals recognized, there was no conflict of interest affecting the adequacy of representation because the two defendants never deviated from the central issue in the case: whether the sexual activity with the complainant was consensual.
The state court's determination that Petitioner and his co-defendant presented a consistent defense was a reasonable determination of the facts. See T V at 44-47 (Petitioner's testimony); id. at 222-24 (Jeffrey McCullough's testimony). The state court's conclusion that reversal was not warranted was a reasonable application of Supreme Court precedent because Petitioner has not demonstrated "that an actual conflict of interest adversely affected his lawyer's performance." Mays, 77 F.3d at 908. Accordingly, Petitioner has no right to habeas relief on the basis of his first claim.
C. Ineffective Assistance
Petitioner's second claim is that he was deprived of the effective assistance of trial counsel. Petitioner contends that defense counsel failed to: (1) obtain or use discovery materials; (2) inform the defendants of the ramifications of being charged as a habitual offender; (3) explain that a conflict of interest existed; (4) follow proper procedure as outlined in the Michigan rape-shield statute; and (5) object to the jury instruction on unanimous verdicts.
To prevail on his claim, Petitioner must demonstrate that
counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed [petitioner] by the Sixth Amendment. Second, [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive [petitioner] of a fair trial, a trial whose result is reliable. Unless [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
The proper standard for attorney performance is "reasonably effective assistance." Id. Petitioner must demonstrate that his attorney's "representation fell below an objective standard of reasonableness." Id. at 688. To satisfy the prejudice prong of the standard for ineffective assistance of counsel, Petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 94.
1. Discovery
Petitioner alleges that defense counsel failed to obtain or use discovery materials and failed to interview defense witnesses.
a. Impeaching the Complainant
Petitioner asserts that, if his attorney had been familiar with the discovery materials, he could have impeached the complainant with discrepancies in her testimony concerning medical treatment she received after the incident in question and whether Mike MacKay was present when she awoke from sleep after the incident.
The alleged discrepancies in the complainant's testimony did not involve critical issues. Furthermore, defense counsel did cross-examine the complainant about those issues and many other matters. See T II at 163, 195-96, 208-09. Therefore, Petitioner's claim about defense counsel's failure to impeach the complainant lacks merit.
b. The Tape-Recorded Statement
Petitioner faults his attorney for not obtaining his tape-recorded statement to a detective. During the tape-recorded interview, Petitioner admitted to engaging in sexual activity with the complainant.
At trial, defense counsel stipulated that Petitioner knew one of his statements to the detective was recorded. Petitioner asserts that the stipulation prejudiced him because it contradicted his trial testimony that he did not remember consenting to the tape recording of his statement. See T V at 139-40, 154, 162-63.
There appears to have been a misunderstanding between the trial attorneys about whether a tape recording existed. Defense counsel insisted in the jurors' absence that he had asked the prosecution for any tape-recorded statements and that he was told there were none. The prosecutor and the detective who recorded the statement claimed that the prosecutor did offer the tape to defense counsel. See T V at 163-187.
In any event, the prosecutor was prepared to call the detective as a rebuttal witness to testify that Petitioner was aware that the detective was recording his statement. Thus, stipulating that Petitioner knew the statement was recorded did not prejudice him.
c. Defense Witnesses
Petitioner alleges that defense counsel failed to interview a number of people whose testimony could have been used to impeach the complainant. Defense counsel was not ineffective for failing to interview the witnesses because their testimony likely would not have helped Petitioner. At best, they would have testified about insignificant details, such as the time of the night when the incident occurred and the reason the complainant left her friends' home prior to the incident.
2. The Habitual Offender Charge
Next, Petitioner claims that defense counsel failed to advise him and his co-defendant, Jeffrey McCullough, of the ramifications of being charged as habitual offenders if they rejected the plea offer. As a result, alleges Petitioner, he rejected the plea offer and received a sentence ten times the sentence proposed in the plea offer.
Defense counsel, however, informed the trial court on the first day of trial that he had outlined the prosecutor's proposed plea agreement to the defendants. Defense counsel explained that the defendants believed it was inappropriate to plead guilty to even a reduced charge with a lower sentence because they were not guilty. Both defendants confirmed defense counsel's comments, saying that they decided not to accept the plea offer because they did not feel criminally responsible for any wrongdoing. See T I at 17-20. Petitioner also intimates in his habeas petition that he wanted a jury trial because he was innocent. See Brief in Support of Habeas Petition at 35-36.
At the evidentiary hearing, he testified that he wanted to plead guilty. See EH at 30, 36.
Thus, the record does not support Petitioner's allegation that a failure to explain the ramifications of the habitual offender charge affected his decision about whether to plead guilty. The Court concludes that defense counsel's performance was not deficient and any deficiency in explaining the ramifications of the habitual offender charge did not prejudice Petitioner.
3. The Conflict of Interest
Petitioner alleges that defense counsel failed to explain before trial that a conflict of interest existed. The record, however, does not support Petitioner's allegation. As previously explained, defense counsel discussed the potential of a conflict of interest with the defendants more than once before the trial began. Neither defense counsel, nor Petitioner, believed that defense counsel's joint representation of the two defendants constituted a conflict of interest. See PE at 3-4; T I at 10-14.
4. Alleged Violation of Procedure
Petitioner asserts that defense counsel failed to provide an offer of proof ten days before trial and failed to request an in camera hearing as required by the Michigan rape-shield statute. This claim lacks merit because an alleged violation of state law is not a basis for habeas relief. Pulley, 465 U.S. at 41; Austin, 213 F.3d at 300. The Court may grant habeas relief only on the ground that the Petitioner is in custody in violation of federal law. 28 U.S.C. § 2254 (a).
5. The Jury Instructions
Petitioner's final allegation about defense counsel is that the attorney did not object to the jury instructions, which deprived him of a unanimous verdict. Petitioner was charged with one count of criminal sexual conduct in the first degree. The trial court instructed the jury that they could convict Petitioner as charged if they determined that he engaged in either oral or vaginal sex as a principal or as an aider and abettor. See T VII at 12-15. Petitioner contends that the trial court should have instructed the jury that they were required to reach a unanimous verdict regarding the specific act of penetration. Petitioner alleges that his attorney should have objected to the jury instructions as given.
The trial court instructed the jurors that their verdict must be unanimous. See id. at 16. Moreover, in Schad v. Arizona, 501 U.S. 624, 631 (1991), the Supreme Court recognized "that a jury need not agree on which overt act, among several, was the means by which a crime was committed." United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992). Therefore, the state court's conclusion — that defense counsel was not ineffective for failing to object to the jury instructions — was a reasonable application of Supreme Court precedent. 6. Conclusion on Petitioner's Ineffective-Assistance-of-Counsel Claim
The state court's decision was in response to co-defendant Jeffrey McCullough's claim. Petitioner did not raise the issue in the appeal of right.
The Michigan Court of Appeals concluded on review of Petitioner's ineffective-assistance-of-counsel claim that defense counsel's performance was neither deficient, nor prejudicial. For all the reasons given above, the state court's decision was not an unreasonable application of Strickland, and, therefore, Petitioner's claims about defense counsel do not warrant habeas relief.
D. Plea Negotiations
Petitioner's third claim is that he was deprived of the effective assistance of counsel by his attorney's conflict of interest during plea negotiations. Petitioner contends that, because his co-defendant wanted to plead guilty, an actual conflict of interest arose from his attorney's representation of both defendants.
Petitioner "must establish that an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 350.
An `actual conflict' may be demonstrated by pointing to "specific instances in the record' that indicate that the attorney "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.'Riggs v. United States, 209 F.3d 828, 831-32 (6th Cir.) (quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987)), cert denied, ___U.S. ___, 121 S.Ct. 200 (2000).
Petitioner's allegation of a conflict of interest during the plea negotiations lacks substance because he asserts that he wanted to go to trial. See Brief in Support of Petition, at 35-36. The transcript of trial indicates that both defendants wanted a jury trial because they believed they were innocent. See T I at 17-20.
At the evidentiary hearing, Petitioner testified that he want to plead guilty and his codefendant wanted to go to trial. See EH at 30, 36.
Even assuming that Petitioner wanted to plead guilty and his co-defendant wanted a trial, the prosecutor was willing to accept the proposed plea bargain only if both defendants pleaded guilty. See EH at 13-15, 51; T I at 20. Under these circumstances, the joint representation was not the factor that prevented Petitioner from accepting the negotiated plea agreement.
Petitioner has failed to demonstrate "active representation of competing interests," Burger v. Kemp, 483 U.S. 776, 783 (1987), and that a conflict of interests "caused the attorney to make bad choices for his client." Mays, 77 F.3d at 908. Accordingly, the state court's decision — that defense counsel was not ineffective — was a reasonable application of clearly established Supreme Court precedent. Petitioner has no right to habeas relief on the basis of his third claim.
E. The Prosecutor
Petitioner's fourth and final claim alleges prosecutorial misconduct. Petitioner asserts that the prosecutor: (1) used, and failed to correct, the complainant's perjured testimony; (2) vouched for the complainant's testimony and bolstered her credibility; and (3) argued that the jurors should convict Petitioner as a matter of civic duty.
To prevail on a claim of prosecutorial misconduct, Petitioner
must show that the prosecutor's conduct was "so fundamentally unfair as to deny [him] due process.' Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999) (quoting Donnell v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In determining whether [Petitioner's] due process rights were violated, this court looks at the totality of the circumstances, including
the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Id.
Seymour v. Walker, 224 F.3d 542, 559 (6th Cir. 2000).
1. Perjury
"[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269 (1959) (citations omitted).
Petitioner alleges that the complainant perjured herself when she testified about receiving multiple medications and making numerous visits to the doctor as a result of a urinary tract infection which developed from the sexual assault. See T II at 195-96, 206-09. Petitioner contends that this testimony was at odds with testimony from the complainant's doctor, who said that he could not recall if the complainant made a return visit and that he prescribed one medication. See T II at 20.
There is no evidence that the complainant perjured herself. She explained the apparent discrepancy between her and her doctor's testimony when she testified that, although she did not schedule additional appointments with the doctor, she did "beep" him often, have telephone conversations with him, and saw him at the hospital where they both worked. See id. at 207.
Petitioner alleges that the complainant also perjured herself when she testified that she was alone after the assault. See id. at 72-73. Petitioner contends that this testimony contradicted the complainant's story to the police in which she claimed that Mike MacKay was with her when she woke up after the assault. See T III at 185.
Not all inconsistencies in testimony amount to perjury. See Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988). Furthermore, the discrepancies in question concerned insignificant facts. Petitioner has failed to show "that the statements were material, that they were actually false, and that the prosecution knew they were false." United States v. Hawkins, 969 F.2d 169, 175 (6th Cir. 1992).
2. Vouching
Next, Petitioner alleges that the prosecutor impermissibly vouched for the complainant's truthfulness as a witness and thereby bolstered her credibility as a witness. The prosecutor said,
What they want you to believe, is that she did this, and to — to use words similar to what the Defense said, "To cover her butt with her boyfriend". If she were covering her butt with her boyfriend, would she not have stated, "Honey, this car pulled up, there was guys in there, they had guns, they had knives, and they told me, `Get in this car or I'm going to blow you away.'"
Or, would she not have stated, "Honey, this car pulled up and there were three guys in there, and they reached down and they got me, they grabbed me, and they put me in the car"?
Would she have stated, "Honey, I went to this apartment and I tried to run, but they caught me and they pulled me inside"?
Of course she would. What did she do? She comes to court and she tells the truth, and the truth is, "I accepted a ride that night, and I shouldn't have accepted it. And, I went into that apartment thinking that these men were what they portrayed themselves to be, three nice guys. And, I was upset that night, because my girlfriend had left me. And, I was upset that night, because I was walking home and it was raining".
If she wanted to cover her butt, she sure could have covered it better. And, she wouldn't have endured what she's had to endure on this witness stand. She wouldn't have travelled all the way back from Texas. She would have done none of the things that she did. Called the Rape Crisis Center Hot Line, go to see the doctor, call the Crisis Center Hot Line again. You don't do that if you're covering your butt with your boyfriend.
T VI at 199-200 (emphasis added).
"[T]he personal opinion of counsel has no place at trial. It is unprofessional for counsel to express a personal belief or opinion in the truth or falsity of any testimony." United States v. Collins, 78 F.3d 1021, 1039-40 (1996) (citations omitted); see also Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999) (stating that a prosecutor "may not express a personal opinion concerning the guilt of the defendant or the credibility of trial witnesses").
Courts frown upon such statements for two reasons: "such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.' United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); see also Caldwell, 181 F.3d at 737 (stating that personal appeals exceed "the legitimate advocate's role by improperly inviting the jurors to convict the defendants on a basis other than a neutral independent assessment of the record proof).Gall v. Parker, 231 F.3d 265, 312 (6th Cir. 2000).
The prosecutor in Petitioner's case was not suggesting that she was aware of evidence known only to herself. Cf. United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999) (stating that improper "[b]olstering occurs when the prosecutor implies that the witness's testimony is corroborated by evidence known to the government, but not known to the jury." Furthermore, although the prosecutor's remark appears to have been deliberately made, the remark was not repeated, and it was a reasonable inference from the evidence. "Where there is conflicting evidence, it may be reasonable to infer, and accordingly to argue, that one of the two sides is lying." Collins, 78 F.3d at 1040.
Additionally, the remarks were made in the rebuttal argument, and prosecutors ordinarily are entitled to wide latitude on rebuttal. Angel v. Overberg, 682 F.2d 605, 607 (6th Cir. 1982). The argument was an obvious response to defense counsel's closing argument that the complainant consented to the sexual activity to fulfill a fantasy for rough sex and that she subsequently concocted a story to appease her boyfriend. See T VI at 171, 175, 183.
Finally, given the strength of the evidence against Petitioner, the Court cannot say that the remark was so egregious as to deprive Petitioner of due process. Therefore, the state court's decision — that the prosecutor's remarks did not require reversal — was not an unreasonable application of Supreme Court precedent. 3. Civic Duty
Petitioner's co-defendant raised the issue in the appeal of right which was consolidated with Petitioner's appeal of right.
Petitioner's final allegation about the prosecutor is that she injected a civic duty argument in her closing remarks. The prosecutor said:
Ladies and Gentlemen, I'm insulted that I have to stand up here and use this kind of language. And, I apologize to you for what these men have forced you and I to endure. But, more than that, I apologize to that young woman (indicating), for what other members of our society, these two men (indicating) put her through that night.
The evidence shows to you that they are both guilty of Criminal Sexual Conduct in the First Degree. This is not one-on-one, as Defense Counsel calls it. It was three on one. And, this is not man against woman. This is [the complainant], and the People of the State of Michigan. All of us. We've all got a right to be safe against these two men (indicating).Id. at 201-02.
These remarks suggested to the jurors that they should convict Petitioner and his codefendant out of sympathy for the complainant and to protect themselves and the public. The remarks "violated the cardinal rule that a prosecutor cannot make statements "calculated to incite the passions and prejudices of the jurors.' United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991); see Stumbo v. Seabold, 704 F.2d 910, 912 (6th Cir. 1983) (decrying prosecutorial misconduct which "prejudice[s] and inflame[s] the jury')". Gall, 231 F.3d at 315. Eliciting the image of turning Petitioner loose on society was improper because it appealed to the jurors' emotions and fears rather than the evidence and law of the case. Id. (quoting United States v. Gainey, 111 F.3d 834, 836 (11th Cir. 1997)).
Nevertheless, the remarks were brief, and they were made on rebuttal after a lengthy trial. In addition, the trial court instructed the jurors that they should not be influenced by sympathy, fear, or prejudice and that the attorneys' arguments were not evidence. See T VII at 3, 5, 17. The trial court also instructed the jurors that they were required to decide the facts on the basis of properly admitted evidence. See id. at 3-4.
Furthermore, the evidence against Petitioner was substantial. Petitioner informed Gina Martell that his friend Mike had placed Percodan and Valium in the complainant's beverage on the night in question. See T III at 24-26. Petitioner made the same admission to Detective Robert Kolartz, see id. at 92, and at one point during the trial he admitted making the remark to Ms. Martell, see T V at 77. Petitioner also admitted at trial that he heard the complainant say, "Please stop," when either his co-defendant, Jeffrey McCullough, or Mike McKay were in the bedroom with the complainant. See id. at 90-96.
Given the totality of the circumstances, the prosecutor's remarks were not so egregious as to deprive Petitioner of a fair trial and due process. Therefore, the state court's decision — that reversal was not warranted — was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Accordingly, Petitioner is not entitled to habeas relief on the basis of his claims about the prosecutor.
III. Conclusion
The state court's decision was a reasonable determination of the facts, and it was neither contrary to, nor an unreasonable application of, Supreme Court precedent. Accordingly, the Court DENIES the habeas corpus petition.