Opinion
Case No. 00-10095-BC.
January 7, 2003
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
The petitioner, Douglas Kim Eller, a state prisoner presently confined at the Ojibway Correctional Facility in Marenisco, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84; malicious destruction of police property, Mich. Comp. Laws § 750.377b; and resisting or obstructing a police officer, Mich. Comp. Laws § 750.479, following a jury trial in the Montcalm County Circuit Court in 1996. He was sentenced as a third habitual offender, see Mich. Comp. Laws § 769.11, to concurrent terms of 160 to 240 months imprisonment, 64 to 96 months imprisonment, and 32 to 48 months imprisonment, respectively, on those convictions.
In his filings, the petitioner raises claims concerning the trial court's jury instructions, trial counsel's effectiveness, prosecutorial misconduct, the admission of certain evidence, and the sufficiency of the evidence to support his convictions. The reasons advanced do not establish that the petitioner is in custody in violation of the Constitution or laws of the United States, and the petition for a writ of habeas corpus will therefore be denied.
I.
The petitioner's convictions stem from his confrontation with a police officer during a traffic stop in Crystal Township, Michigan on June 16, 1996. At trial, police officer Todd Graham testified that he effectuated a traffic stop of a vehicle driven by the petitioner's wife around 2:00 a.m. on June 16, 1996 because the car swerved on the road and did not have a visible license plate.
Graham called into dispatch and reported that he was pulling over a car with no visible plate. As Graham exited the patrol car, the petitioner, having exited the vehicle, approached and began yelling at the officer. Graham said that he warned the petitioner to get back into the car or he would be arrested. When Graham reached out to grab the petitioner's hand, the petitioner slapped his hand away. The petitioner continued to back up around the vehicle and Graham pursued him. Graham testified that he eventually got close enough to the petitioner to grab his shirt and they both fell to the ground. Graham stated that he fell face down on the ground and the petitioner landed on his back. The petitioner then put his arm around Graham's throat and began choking him. Graham was unable to push the petitioner away, but managed to pepper spray the petitioner in the face. Graham felt the petitioner's grip get tighter and could not breathe. As Graham started to panic and black out, an area resident named Scott Hoard intervened in the struggle. Graham was able to get loose and place one handcuff on the petitioner. Hoard put the other handcuff on the petitioner.
Graham then put the petitioner in the patrol car and called dispatch. As he did so, the petitioner spit through the vehicle divider, kicked the car window with both feet, and slammed his head into the divider. Graham proceeded to investigate the petitioner's wife for possible drunk driving. He said he observed an open beer container in the car, conducted field sobriety tests, and then arrested the petitioner's wife. The petitioner continued to kick the patrol car door as they drove to the police station, causing Graham to stop the car, pepper spray the petitioner, and chain his legs to the back of his hands. Graham stated that as a result of the struggle, he received abrasions to both elbows, his knees, and his head.
Scott Hoard and another area resident, David Byars, observed the altercation. Both stated that they saw the petitioner pointing his finger and yelling at Graham before seeing the two men on the ground. Hoard and Byars also testified that the petitioner choked Graham with his forearm until Hoard intervened. Hoard testified that he knelt down on the petitioner's right shoulder, then grabbed the petitioner at a pressure point under his jaw to get him to release Graham. Hoard then assisted Graham in handcuffing the petitioner.
Testimony from police and mechanic witnesses established that the patrol car was damaged by kicks to the door. Two lights on the rear deck were turned and twisted, the rear doors had to be re-aligned, and window runs had to be replaced.
The petitioner and his wife also testified at trial, presenting their version of the incident. According to their testimony, the petitioner questioned the officer about the reason for the traffic stop, but did not yell or swat at him. The petitioner refused to get back into the car when questioned by the officer and gestured toward the car's window to show the officer the temporary license tag. Graham then initiated the physical contact by grabbing the petitioner's wrist and arms. As the petitioner backed away, Graham grabbed the petitioner's shirt and they fell to the ground. The petitioner admitted struggling with Graham, but stated that he did not know he had Graham by the neck because his eyes were closed due to the pepper spray. Mrs. Eller testified that she saw the men rolling on the ground, but could not see what occurred from her location in the car. When she walked over to the men, she observed gravel and cuts on her husband's face, cuts on his arms, and mucous from the pepper spray. The petitioner claimed that he was the subject of an illegal arrest, denied having an open container in the car, and denied having any intent to assault the police officer.
At the close of trial, the jury found the petitioner guilty of assault with intent to commit bodily harm less than murder, malicious destruction of police property, and resisting or obstructing a police officer, but acquitted him of an open container charge. The trial court sentenced him as a third habitual offender to the concurrent terms of imprisonment described above on November 27, 1996.
After sentence was imposed, the petitioner filed several post-conviction motions in the trial court, which were denied on August 8, 1997. The petitioner then filed an appeal as of right with the Michigan Court of Appeals asserting that he was denied due process and a fair trial because the jury instructions permitted the jury to convict him of a crime not charged, the trial court failed to adequately instruct the jury on the right to resist unlawful police action, trial counsel failed to request appropriate instructions on resisting and obstructing and failed to object to an erroneous instruction, the trial court denied a request for an instruction on simple assault and battery as a lesser included offense of assault with intent to commit great bodily harm, the trial court abused its discretion at sentencing, the trial court abused its discretion in denying his request for jury review of the patrol car damage, the prosecutor failed to correct false testimony, his defense of illegal arrest and self-defense precluded a conviction for assault with intent to do great bodily harm less than murder, trial counsel failed to impeach a key prosecution witness's false testimony, the trial court abused its discretion in ruling that the car driver's blood alcohol content was irrelevant, and the trial court abused its discretion in denying a directed verdict motion on the resisting and obstructing charge. The Court of Appeals affirmed the petitioner's convictions and sentences in a per curiam decision. People v. Eller, No. 201831 (Mich.Ct.App. Nov. 17, 1998).
The petitioner also filed an application for leave to appeal in the Michigan Supreme Court raising the same issues. The Supreme Court denied leave to appeal in a standard order. People v. Eller, 460 Mich. 876, 601 N.W.2d 103 (1999). The petitioner's motion for reconsideration was denied on October 26, 1999.
The present petition for a writ of habeas corpus, dated March 2, 2000, was filed on March 10, 2000. It contains the following claims as grounds for relief:
I. [The petitioner] was denied his state and federal rights to due process and a fair trial, and his conviction for resisting and obstructing must be reversed, because of the substantial possibility that the jury instructions permitted the jury to convict him of a crime not charged.
II. [The petitioner] was denied his state and federal constitutional right to due process and a fair trial where the trial court failed to adequately instruct on the right to resist unlawful police action.
III. [The petitioner] was denied his state and federal constitutional right to the effective assistance of counsel where counsel failed to request the appropriate instructions for resisting and obstructing and failed to object to the trial court's erroneous instruction.
IV. The assault with intent to commit great bodily harm conviction must be reversed where the trial court refused defense counsel's request for the lesser offense of simple assault and battery.
VI. [ sic] The trial court abused its discretion in denying his request for a jury view of the alleged damage to the police car violating his constitutional right to present a defense.
VII. When the prosecutor failed to correct oral testimony which she knew to be false, [the petitioner's] state and federal constitutional rights to due process and a fair trial were violated and his conviction for malicious destruction of police property must be reversed where false testimony could have affected the judgment of the jury.
VIII. The trial court abused its discretion ruling that res gestae evidence of blood alcohol content of the driver was irrelevant, denying [the petitioner's] constitutional right to compulsory process and due process of law.
IX. [The petitioner] conviction for assault with intent to do great bodily harm less than murder must be reversed where his defense to the charge was one of illegal arrest and self-defense and the trial court failed to instruct the jury that defendant had a right to resist the arrest of his person and that the prosecution must prove beyond a reasonable doubt that his arrest was legal and that defendant was not acting in self-defense.
X. [The petitioner] was denied his state and federal constitutional right to the effective assistance of counsel where counsel failed to impeach a key government witness's false testimony.
XI. The trial court abused its discretion in denying a request for a directed verdict on the resisting and obstructing charge, a violation of his state and federal rights to due process of law.
On August 10, 2000, the respondent filed a motion for summary judgment alleging that the petitioner failed to exhaust state court remedies as to one of his claims. This Court concluded otherwise and denied the motion on October 12, 2000. The respondent then filed an answer to the petition on December 27, 2000, asserting that claims I, II, III, VIII, X, and XI must be denied for lack of jurisdiction because they relate to the validity of the conviction for resisting and obstructing a police officer, and the petitioner has completed his sentence on that charge; claims II and X are supposedly based on the Fourth Amendment and therefore are barred by Stone v. Powell, 428 U.S. 465 (1976); claims I, II, VII, and IX are barred by procedural default; and that habeas claims IV and VI are not cognizable on federal habeas review.
II.
A writ of habeas corpus is available to a person challenging a state court criminal judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Because Eller's maximum sentence for resisting and obstructing a police officer was four years, which he has now served, the Court must first address the preliminary questions of whether the petitioner is "in custody" within the meaning of 28 U.S.C. § 2254(a), and whether the petitioner's completion of his sentence deprives the Court of jurisdiction to review his claims which relate to that conviction.
In Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), the Supreme Court stated that "[i]t is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Whether a habeas corpus petitioner is in custody for purposes of §§ 2241 and 2254 is determined at the time that the petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
Although a prisoner's release from custody subsequent to the filing of the petition may render his case moot, such a release does not affect the custody question. Moreover, the term "custody" is not limited solely to physical confinement. Sanders v. Freeman, 221 F.3d 846, 850-51 (6th Cir. 2000). For instance, persons on parole, probation, or bail may be "in custody" for purposes of §§ 2241 and 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 240-42 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349 (1973) (bail); McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1989) (probation). However, after a petitioner's sentence for a conviction has completely expired, the collateral consequences of that conviction are insufficient to render him "in custody" under § 2254(a). Clemons v. Mendez, 121 F. Supp.2d 1101, 1102-03 (E.D. Mich. 2000) (citing Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam) (additional internal quotation omitted)).
The petitioner in this case had fully served his sentence for the resisting or obstructing a police officer conviction at the time he filed his petition. The record reveals that the petitioner's sentence for that conviction expired on November 17, 1999. The sentence for that crime was to run concurrent to the longer sentences for the other two convictions; thus it has no effect on his present confinement. Cf. Garlotte v. Fordice, 515 U.S. 39, 45-47 (1995) (concluding that prisoner serving consecutive sentences is in custody for all of those sentences in the aggregate, and may attack the sentence scheduled to run first, even after it has expired, until all the consecutive sentences have been served). The United States Supreme Court has "never held however, that a habeas petitioner may be `in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Maleng, 490 U.S. at 491. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are in custody in violation of the Constitution or laws or treaties of the United States." Id. at 490 (quoting 28 U.S.C. § 2241(c)(3)). This Court, therefore, does not have jurisdiction over claims relating to the petitioner's conviction for resisting and obstructing a police officer.
After examining the arguments in the petition, it is apparent that claims I, II, III, VIII, X, and XI relate exclusively to the petitioner's challenge to his conviction for resisting and obstructing a police officer. Claims I, II, and III attack the jury instructions which defined the elements of the resisting and obstructing offense and trial counsel's error in failing to request certain instructions relating to that crime; claim VIII concerns the exclusion of the blood alcohol content of the petitioner's wife, which relates to the petitioner's right to resist an illegal arrest; claim X alleges trial concerns counsel's ineffectiveness in questioning police about the supposed unlawful stop of the petitioner's car; and habeas claim XI contests the sufficiency of the evidence to support the resisting and obstructing conviction. This Court will dismiss these claims for want of subject matter jurisdiction. Steverson v. Summers, 258 F.3d 520, 522-23 (6th Cir. 2001) (finding that a petitioner who was not subject to any unexpired state sentences was not "in custody" for the state convictions which his petition directly challenged). This determination obviates the need to address the respondent's questionable argument that Stone v. Powell bars review of claims II and X.
III.
The petitioner's remaining claims are 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, 406 (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, 411. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
In claim IV, the petitioner argues that the trial judge improperly refused to instruct on the lesser included offense of simple assault, thereby invalidating his conviction for assault with intent to do great bodily harm. Under Michigan law, a trial court must instruct on a lesser included misdemeanor where (1) there is a proper request, (2) there is an "inherent relationship" between the greater and lesser offense, (3) the requested misdemeanor is supported by a "rational view" of the evidence, (4) the defendant has adequate notice, and (5) no undue confusion or other injustice would result. People v. Stephens, 416 Mich. 252, 261-265, 330 N.W.2d 675, 680-81 (1982); People v. Corbiere, 220 Mich. App. 260, 262-63, 559 N.W.2d 666, 668 (1996). Thus, as a matter of state law, the trial court was not required to give a simple assault and battery instruction absent sufficient evidence to support such a conviction. As noted by the Michigan Court of Appeals, the evidence did not reasonably support a simple assault and battery instruction. See Eller, No. 201831, slip op. at 2-3. Given the evidence presented at trial, particularly the testimony of Officer Graham and witnesses Hoard and Byars, there was sufficient evidence for the jury to find the petitioner guilty of assault with intent to do great bodily harm less than murder.
Moreover, even assuming that the trial court erred as a matter of state law, the petitioner is not entitled to relief from this Court unless the error rendered the trial fundamentally unfair. In Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990), the United States Court of Appeals for the Sixth Circuit held that a state court's failure to instruct the jury on a lesser included offense in a noncapital criminal case is not such a "fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." The petitioner has not suggested how the state courts' treatment of this is issue is contrary to or an unreasonable application of federal law. The Court finds that it is not; the petitioner is not entitled to relief on this claim.
B.
In claim VI, the petitioner contends that his right to present a defense was abridged when the trial court denied a defense request for a jury view of the damaged police car. It is well settled that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dep't. of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). Of course, the Due Process Clause is implicated if state evidentiary rulings deny a criminal defendant a "meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
Under Michigan law, a decision to allow or deny the jury a view of the crime scene is a matter within the trial court's discretion. See People v. Mallory, 421 Mich. 229, 245, 365 N.W.2d 673, 680-81 (1984). The Michigan Court of Appeals in this case concluded that the trial court did not abuse its discretion in refusing to permit the jury to view the patrol car involved in the incident because the evidence of damage submitted at trial rendered a view cumulative. Eller, No. 201831, at 3. The Court of Appeals' decision was not unreasonable. The petitioner has not established that the trial court erred, nor has he shown that he was unfairly prejudiced by the trial court's decision not to allow or require the jury to view the patrol car. Moreover, the petitioner has not shown how the denial of a jury view rendered his trial fundamentally unfair. Habeas relief is not warranted on the basis of this claim of error.
C.
Claim VII raises an issue of prosecutorial misconduct. The petitioner contends that the state prosecutor elicited testimony which she knew was false and failed to correct it on the record.
He contends that this misconduct constitutionally taints his conviction for malicious destruction of police property. In claim IX, the petitioner asserts that the trial court should have given jury instructions on self-defense and the right to resist an illegal arrest as defenses to the charge of assault with intent to great bodily harm. The respondent argues that the petitioner failed to preserve these claims by objecting in the trial court, and therefore the petitioner committed a procedural default.
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 752, 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; see 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. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 122 S.Ct. 2635 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). 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. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
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).
The procedural rule in question in this case is the requirement that a criminal defendant object to improper jury instructions and prosecutorial misconduct in order to preserve such a claim for appellate review. See People v. Ullah, 216 Mich. App. 669, 676-77, 679, 550 N.W.2d 568, 573-74 (1996) (citing People v. Van Dorsten, 441 Mich. 540, 544-45, 494 N.W.2d 737 (1993) and People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994)). The petitioner does not dispute that the contemporaneous-objection rule was firmly established and regularly followed with respect to these grounds before the petitioner's 1996 trial. See, e.g., People v. Buckey, 424 Mich. 1, 17-18, 378 N.W.2d 432, 440 (1985); People v. Sharbnow, 174 Mich. App. 94, 100, 435 N.W.2d 772, 775 (1989). Therefore, the state court's reliance on the petitioner's failure to object to the prosecutor's conduct and the trial court's instructions is an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994 (6th Cir. 1998); see Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding).
Here, the Michigan Court of Appeals rendered the last reasoned opinion rejecting the petitioner's claims. In denying those claims, the court of appeals relied upon a state procedural bar, his failure to object to the instructions and the alleged prosecutorial misconduct at trial. See Eller, No. 201831, slip op. at 1, 3. The failure to make a contemporaneous objection is recognized as an independent and adequate state law ground for refusing to review trial errors. Coleman, 501 U.S. at 750-51.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). The petitioner neither alleges nor establishes cause to excuse his procedural default. When cause has not been shown, the Court need not consider whether actual prejudice has been demonstrated. See, e.g., Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Further, the petitioner has not established that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "To be credible, [a claim of actual innocence] 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." Schlup, 513 U.S. at 324. The petitioner has made no such showing in this case. His jury instruction and prosecutorial misconduct claims are thus barred by procedural default and do not warrant habeas relief.
IV.
The Court lacks subject-matter jurisdiction to entertain claims relating to the petitioner's conviction for resisting and obstructing a police officer. The remaining claims are either procedurally defaulted or do not result from state court decisions that are contrary to or an unreasonable application of federal law.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DISMISSED as to claims I, II, III, VIII, X, and XI, and DENIED as to the remaining claims.