Opinion
Case No. 00-CV-73044-DT
April 13, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Ronald O'Neal Emerson, a state prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for writ of habcas corpus under 28 U.S.C. § 2254. Petitioner was convicted of felony murder following a jury trial in the Recorder's Court for the City of Detroit in 1989. Petitioner was sentenced to life imprisonment without parole for that conviction.
In his pleadings, Petitioner raises claims concerning the effectiveness of trial and appellate counsel, the state courts review of those claims, and the sufficiency of evidence presented at trial. For the reasons stated below, Petitioner's request for habeas relief is denied.
I. Facts
Petitioner's arrest and conviction arise from the death of 16-year-old Michelle Lynn Zimmerla in Wayne, Michigan in August, 1988. The testimony presented at trial revealed that Ms. Zimmerla was last seen with Petitioner on the evening of August 16, 1988 when they left her home, went to a friend's home, and went walking under the trestles near the Rouge River. Her body was found by police on August 21, 1988 near a path along the river. Her pants and purse were found nearby. The medical examiner concluded that Ms. Zimmerla died from five blunt force injuries to her head. Due to decomposition, tests could not determine whether she had been sexually assaulted.
The victim's father, John Zimmerla, testified that his daughter and Petitioner left his house together around 9:00 p.m. on August 16, 1938. He told his daughter to return home by 11:00 p.m., but she never returned, He looked for her the next day, but was unable to locate her. When he saw Petitioner on August 18, 1988, Petitioner told him that he dropped Ms. Zimmerla off at the end of their street around 11:00 p.m. on August 16, 1988.
Penny Courtright testified that Ms. Zimmerla and Petitioner came to her house on the night of August 16, 1988. They stayed for about 30 minutes, then left in a borrowed car to buy beer. They returned about one hour later without beer, stayed for a short while, and left around 1:00 a.m. Ms. Courtright testified that she observed Petitioner's demeanor and speech that night and that he seemed fine, did not stagger, lose his balance, slur his words, or appear to be Out of touch with reality. Patricia Simon, Courtright's sister, and Scott Cameron, Courtright's boyfriend, who were also at the house that evening, corroborated her testimony.
Christy Casteel testified that Petitioner called her on August 24, 1988 when he was in police custody. When she asked him whether he killed Ms. Zimmerla, he responded, "Uh hum" or "Uh huh." Casteel also testified that she had driven Ms. Zimmerla to a liason with a black man and that she had told Petitioner that Ms. Zimmerla was having sex with black men. She did not recall Petitioner's reaction to this news. Ms. Casteel stated that she associated with people who occasionally used mescaline and that she had seen Petitioner use mescaline within a month or two of Ms. Zimmerla's death. Christy's mother, Brenda Casteel, testified that her daughter and Petitioner were good friends and that he called their home from jail on August 23, 1988 and August 24, 1988 while her daughter was being questioned at the police station. Mrs. Casteel stated that during one call, Petitioner admitted that he killed Ms. Zimmerla. When she asked him why, Petitioner responded that he had been high and that Ms. Zimmerla was a whore.
Two police officers testified about Petitioner's pre-trial statements. Michigan State Police Lieutenant Harold Raupp testified that Petitioner was brought into the Northville Post for some scientific testing on August 23, 1988. Petitioner was taken to a private room where he was advised of his rights and told that he did not have to be there and could leave if he wanted to do so. Petitioner waived his rights and agreed to speak with Lieutenant Raupp. Petitioner initially denied killing Ms. Zimmerla, but later became ashamed and admitted his involvement in her death. According to Lieutenant Raupp, Petitioner told him that he had been drinking and had taken two hits of mescaline on August 16, 1988. He and Ms. Zimmerla were walking in a secluded area because they were drinking Jack Daniels and did not want to get caught. A girl named Chris had previously told him that she had been with Ms. Zimmerla when Ms. Zimmerla had sex with African-American men and Arabic men. He talked with Ms. Zimmerla about this while they were walking. He then picked up a large rock and hit Ms. Zimmerla with it two or three times. She was still alive and he had sex with her. He later threw the rock into the river and placed brush on top of Ms. Zimmerla, as well as a large piece of steel, before returning home.
Wayne Police Sergeant Donald Campbell testified that he took two statements from Petitioner during his investigation of Ms. Zimmerla's death. Sergeant Campbell explained that when he went to Christy Casteci's home to question her on August 23, 1988. Petitioner was present. Sergeant Campbell asked Petitioner if he would come to the police station for questioning and Petitioner consented. When they drove to the police station, Petitioner was neither handcuffed nor placed under arrest. Sergeant Campbell took Petitioner to an interview room and advised him of his rights. Petitioner denied involvement in Ms. Zimmerla's death and said that he dropped her off at the end of her street after leaving Penny Courtright's home on August 16, 1988. This statement was taken at 2:45 p.m. Petitioner subsequently agreed to go to the Northville Michigan State Police Post for scientific testing. They arrived at the post at 5:00 p.m. Lieutenant Raupp interviewed Petitioner outside of Sergeant Campbell's presence for about one hour. Sergeant Campbell then questioned Petitioner a second time at 7:30 p.m. after again advising him of his constitutional rights.
In the question and answer written statement signed by Petitioner and Sergeant Campbell, Petitioner states that he picked up Ms. Zimmerla at her home around 9:00 p.m. on August 16, 1988. They went to his house for one and one-half to two hours before going to Penny Courtright's house for a period of time. When they left Courtright's house, they went to see another friend, but she was not home. Petitioner and Ms. Zimmerla then walked down the railroad tracks to the trestles. While they were walking, Petitioner asked Ms. Zimmerla if she slept with black guys, and she responded in the negative. Petitioner stated that he then hit her three times on the back of the head with a rock because he knew she was lying. Ms. Zimmerla fell to the ground, and Petitioner then had sex with her. When Ms. Zimmerla said that she was going to call the police and that Petitioner was going to jail, Petitioner hit her two more times with the rock, knocking her out. Petitioner threw Ms. Zimmerla's clothes on the ground, put her in a bush, and covered her up with sticks, branches, and a big bar. He then threw the rock into the river and went home. Petitioner stated that he drank about a pint of Jack Daniels that night and took two hits of mescaline at home before going to Penny Courtright's house. Sergeant Campbell stated that he finished taking Petitioner's statement at 8:30 p.m.
Petitioner's mother, Betty Jane Watkins, and stepfather, Ron Watkins, also testified at trial. Mr. Watkins testified that he saw Petitioner and Ms. Zimmerla at his house sitting on the porch between 10:30 and 11:00 p.m. on August 16, 1988. He saw Petitioner take two glasses of ice and a cigarette pack with two little pills in the wrapper, which he suspected to be mescaline, out to the porch. Mr. Watkins observed the effects of mescaline on Petitioner and described an incident in which Petitioner jumped out of three windows to get out of the house after being grounded by his mother. Mrs. Watkins also testified about the effect of mescaline on her son. One night she saw Petitioner look out of a window, open the door, and run outside screaming, saying that he could not breathe. She stated that when her son took mescaline he was totally different and could not conform his actions to disguise the fact that he was on the drug. She said that it would be very obvious that he was on something when he took mescaline.
Petitioner testified on his own behalf at trial. He admitted killing Ms. Zimmerla, but claimed that he did so while under the influence of alcohol and mescaline. Petitioner stated that he drank Jack Daniels and took mescaline while at home before going to Penny Courtright's house on August 16, 1988 and explained that he did not feel its effects while at her house. He described his and Ms. Zimmerla's actions prior to going to the trestles on the night of the murder in a manner consistent with his police statements. He further testified that, while at the trestles, he and Ms. Zimmerla argued about her sexual relations with African-American and Arabic men. He remembered looking at a rock, but did not remember picking it up because he blacked out. The next thing he recalled was sitting up against a wall and seeing Ms. Zimmerla laying on the ground with her pants down. There was blood on the rock, so he knew that he had hit Ms. Zimmerla. He got scared and panicked, and thought about going to the police or hiding the body. He remembered throwing Ms. Zimmerla's purse, but not her clothes. He also remembered placing her body under some brush and throwing the rock into the river because he did not want to get caught. He believed that his actions were caused by a bad hit of mescaline and claimed that he was not the type of person to kill someone.
Petitioner admitted that he was not threatened or promised anything at the time he gave his police statement. He stated that when he confessed, he thought that he would go to jail for the rest of his life and that there would not be a trial. He testified that he confessed because although he did not remember hitting Ms. Zimmerla, the rock was there and he was the only one present. With respect to the sexual assault, Petitioner stated that he only told police that he had sex with Ms. Zimmerla because the officers told him that it looked like something had happened, he was crying and scared, and he thought he would be convicted of the assault anyway. Petitioner stated that he did not believe that he had sex Ms. Zimmerla because he would know if something like that had happened. He said that he told the police that he had sex with Ms. Zimmerla because that was what the officers wanted to hear. Petitioner testified that he initially tried to escape responsibility for what be had done, but later changed his mind and told people how to get in touch with him. However, he was leery about turning himself in.
At the close of trial, the jury found Petitioner guilty of first-degree felony murder. The trial court subsequently sentenced him to life imprisonment without parole.
II. Procedural History
Following his conviction and sentencing, Petitioner, through appointed counsel, filed an appeal as of right with the Michigan Court of Appeals, raising the following claims:
I. The trial court erred reversibly by denying defense counsel's request for directed verdict because the prosecution had failed to establish the corpus delicti of felony murder.
II. Defendant was deprived of the effective assistance of counsel where defense counsel in closing argument asked the jury to convict defendant of second-degree murder.
III. Defendant was improperly denied his right to waive a jury trial.
IV. The trial judge reversibly erred by failing to excuse a juror who learned that she had an acquaintance whose brother-in-law was an uncle to the victim.
Petitioner also filed a motion to remand seeking to develop a factual record on the following additional claim:
V. Defendant was denied his state and federal constitutional rights to the effective assistance of counsel where counsel made a ludicrous attempt at presenting a defense of a drug-induced blackout, but apparently was not aware of the defense of insanity due to the ingestion of mind-altering substances, which he failed to investigate and present.
The Michigan Court of Appeals granted the motion to remand, limiting the remand's scope to the issues raised in the motion. People v. Emerson, No. 119737 (Mich.Ct.App. Jan. 28, 1991).
At the evidentiary hearing, the defense claimed that trial counsel was ineffective for failing to investigate or present a drug-induced temporary insanity defense and that trial counsel was ineffective for failing to seek suppression of Petitioner's confession on the basis of illegal arrest. Petitioner offered the testimony of attorney Daniel MeGuire, who had represented Petitioner until approximately one week before the final pre-trial conference. McGuire testified that he had prepared pre-trial motions, but did not file them at newly retained counsel Charles Campbell's request. McGuire explained that his had intended to file a motion to quash based upon the state corpus delicti rule and insufficient evidence of premeditation and that be intended to file a motion to suppress the confession based upon a claim of illegal arrest. McGuire also testified that he would not have argued an intoxication defense at trial because it is not a defense to felony murder. Petitioner did not present any affidavits, expert testimony, or other evidence in support of his claimed insanity defense, nor did he present evidence to show that his confession was involuntary or his arrest illegal. Following the hearing, the trial court denied the request for new trial finding that Petitioner failed to present evidence establishing either of his ineffective assistance of counsel claims. People v. Emerson, No. 88-010761 (Recorder's Ct. April 13, 1993). Petitioner's request for rehearing was also denied.
Petitioner thereafter filed a second motion to remand with the Michigan Court of Appeals seeking to develop a record regarding whether trial counsel was ineffective for failing to seek suppression of his confession on the basis of illegal arrest. The Court of Appeals denied the motion. People v. Ernerson, No. 119737 (Mich.Ct.App. Nov. 3, 1993). The Court of Appeals subsequently affirmed Petitioner's conviction in a per curiam published opinion. People v. Emerson, 203 Mich. App. 345 (Jan. 19, 1994). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Emerson, 448 Mich. 931 (May 16, 1995).
Petitioner filed a motion for relief from judgment with the trial court, alleging that: (1) trial counsel was ineffective for failing to present the defense of temporary insanity, (2) trial counsel was ineffective for failing to seek suppression of his confession to police, (3) appellate counsel was ineffective for failing to submit evidence to support the defense of temporary insanity, and (4) appellate counsel was ineffective for railing to immediately seek an evidentiary hearing on the ineffective assistance of trial counsel. The trial court denied the motion, finding that Petitioner's first claim had been raised and decided against him on direct appeal, that his second, third, and fourth claims lacked merit, and that Petitioner failed to establish good cause for failing to raise his second, third, and fourth claims on direct appeal. People v. Emerson, No. 88-010761 (Wayne Co Cir. Ct. Jan. 22, 1998).
Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Emerson, No. 211228 (Mich.Ct.App. Oct. 2, 1998). Petitioner also filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied on the same basis. People v. Emerson, 460 Mich. 873 (July 27, 1999).
Petitioner, through legal counsel, filed the present petition for writ of habeas corpus on July 6, 2000, raising the following claims:
I. Petitioner was denied the effective assistance of counsel where his trial attorney: A) did not investigate or present the defense of temporary insanity due to drug ingestion, and his appellate attorney did not submit affidavits, expert testimony or other evidence to support his issue when the case was remanded by the Michigan Court of Appeals; B) argued during closing argument that the jury should convict Petitioner of second-degree murder; C) advanced a defense which was wholly unfounded as to the charged offense and failed to file pretrial motions that would have provided an acceptable defense.
II. Petitioner was denied the effective assistance of counsel and the right to a full and fair hearing on this issue, where his trial attorney did not move to suppress Petitioner's statements to police which were the result of an illegal detention, and his appellate attorney did not initially seek a remand for an evidentiary hearing on this issue, and her later efforts were rejected by the trial and appellate courts.
III. Petitioner was denied due process where the Michigan Court of Appeals failed to consider some of his arguments relating to ineffective assistance of trial counsel which were included in his timely filed brief after remand.
IV. The evidence was insufficient to establish felony murder where the only evidence as to the underlying felony of criminal sexual conduct came from Petitioner's confession, and the trial court denied the motion for directed verdict.
Respondent filed an answer to the petition on October 3, 2000 asserting that the claims should be denied based upon procedural default and/or for lack of merit. Respondent did not file the necessary state court records and transcripts until December 11, 2000.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996). govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The AEDPA provides:
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) (1996).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of. . . clearly established Federal law as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the 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.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Discussion A. Ineffective Assistance Claims — Defenses
Petitioner first claims that trial counsel was ineffective for failing to investigate and present a defense of temporary insanity due to drug ingestion, for arguing that Petitioner should be convicted of second-degree murder, and for advancing an intoxication defense to felony murder. Petitioner also claims that appellate counsel was ineffective for failing to present evidence of temporary insanity due to drug ingestion at the evidentiary hearing during the appellate proceedings.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the United States Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scrogg, 99 F.3d 1302, 1311 (6th Cir. 1996). "on balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
1. Insanity Defense
The Michigan Court of Appeals concluded that defense counsel's performance was not deficient nor was Petitioner prejudiced by counsel's performance because there was no evidence to support a defense of insanity based on the continual voluntary ingestion of mind-altering drugs. Emerson, 203 Mich. App. at 348-49. Having reviewed the record, this Court concludes that the Court of Appeals' determination is consistent with federal law and constitutes a reasonable application thereof. Under Michigan law, to establish an insanity defense based upon his mescaline use, Petitioner was required to present evidence that continued and persistent drug use resulted in a condition of insanity which was not limited to periods of intoxication. See People v. Caulley, 197 Mich. App. 177, 187 n. 3 (1992); People v. Conrad, 148 Mich. App. 433, 438-41 (1986). The evidence in this case does not show that Petitioner consistently used mescaline or that he experienced insanity or unusual behavior at times other than when he was under the influence of drugs. At most, the testimony presented at trial indicates that Petitioner exhibited behavioral problems while on mescaline. Counsel cannot be said to be deficient for failing to raise an unsupported defense.
Further, Petitioner has not presented any evidence which trial or appellate counsel should have reasonably discovered or presented to support an insanity defense. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. See, e.g., Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance of appellate counsel do not warrant habeas relief); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3rd Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient ground to hold evidentiary hearing in habeas proceedings). Petitioner has failed to establish that he was prejudiced by trial or appellate counsel's performance. He is thus not entitled to habeas relief on these ineffective assistance of trial and appellate counsel claims.
2. Argument for Second-Degree Murder
Petitioner also claims that trial counsel was ineffective for arguing during closing arguments that he was guilty of second-degree murder. The Michigan Court of Appeals declined to second-guess trial counsel's strategy of admitting guilt to a lesser offense. Emerson, 203 Mich. App. at 349. The Court of Appeals' decision in this regard is consistent with federal law and constitutes a reasonable application of that law. Conceding guilt to a lesser offense may be sound trial strategy and not constitute the ineffective assistance of counsel. See Tenner v. Gilmore, 184 F.3d 608, 617 (7th Cir. 1999) (conceding guilt of second-degree murder to avoid first-degree murder conviction and death penalty was reasonable given nature of evidence against defendant); see also Nielsen v. Hopkins, 58 F.3d 1331, 1335-36 (8th Cir. 1995); United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). Given that Petitioner was charged with first-degree murder and admitted killing Ms. Zimmerla in statements to police and while testifying at trial, it was reasonable for counsel to seek to persuade the jury to convict him of the lesser-included offense of second-degree murder during closing arguments. Petitioner is thus not entitled to habeas relief on this claim.
3. Intoxication Defense
Petitioner relatedly claims that counsel was ineffective for raising an intoxication defense to felony murder. Under Michigan law, intoxication is not a defense to felony murder when the underlying felony is criminal sexual conduct because criminal sexual conduct is a general intent crime. See People v. Langworthy, 416 Mich. 630, 645 (1982) (first-degree criminal sexual conduct is a general intent crime); People v. Hughey, 186 Mich. App. 585, 591 (1991) (first-degree felony murder is a general intent crime for which the defense of voluntary intoxication may not be asserted except to the extent that the underlying felony is itself a specific intent crime, in which case the defense of involuntary intoxication may be asserted to negate the specific intent required to commit the underlying felony).
Even assuming that trial counsel was deficient for raising an intoxication defense to the felony murder charge, however, Petitioner has not established that he was prejudiced by counsel's conduct. As noted, the record does not contain evidence to support an insanity due to drug-ingestion defense. Petitioner admitted killing and sexually assaulting Ms. Zimmerla in his police statements, which were admitted into evidence at trial. Petitioner also admitted killing Ms. Zirnmerla while testifying at trial. Given these circumstances and the lack of available defenses, Petitioner cannot establish that he was prejudiced by counsel's presentation of an intoxication defense. Petitioner is thus not entitled to habeas relief on this claim.
B. Ineffective Assistance Claims — Suppression of Confession
Petitioner also claims that he is entitled to habeas relief because trial counsel failed to seek suppression of his confession based upon illegal arrest and appellate counsel failed to properly raise this issue on direct appeal. Respondent asserts that this claim is barred by procedural default and is otherwise without merit. This Court agrees.
Federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85. In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration ofa federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the trial court clearly relied upon a state procedural bar in dismissing these claims — Petitioner's failure to properly raise the claims at trial and on direct appeal. Additionally, the Michigan appellate courts refused to address these claims based upon Petitioner's failure to comply with the requirements of MCR 6.508(D). A state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki v. Folz, 869 F.2d 281, 285 (6th Cir. 1989). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the trial and appellate courts dismissed Petitioner's ineffective assistance of counsel claims relating to his suppression/illegal arrest issue based upon procedural default — his failure to properly object at trial and on appeal.
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 v. Thompson, 501 U.S. 722, 753 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).
Even assuming that Petitioner can establish cause to excuse his default, he cannot demonstrate actual prejudice. Petitioner has not shown that his statements were the result of an illegal arrest. First, the record indicates that Petitioner voluntarily accompanied Sergeant Campbell to the police station for questioning and agreed to go to the Michigan State Police post for scientific testing. Petitioner was advised of his rights prior to questioning and agreed to speak with police officers on each occasion. Petitioner was told that he was free to go and was not placed under arrest prior to questioning. The record also indicates that Petitioner's statements were knowingly and voluntarily made.
Second, police arguably had probable cause to arrest Petitioner. Probable cause exists when the facts and circumstances within the arresting officer's knowledge would lead a reasonable person to believe that a crime was committed and that it was committed by the defendant. Brinegar v. United States, 338 U.S. 160, 175-76 (1949). The arresting officer must be able to articulate concrete facts from which he or she may reasonably infer a probability that the defendant has committed a crime. The officer need not "possess evidence sufficient to establish a prima facie case at trial, much less evidence beyond a reasonable doubt." United States v. Strickland, 144 F.3d 412, 413 (6th Cir. 1998). The record indicates that police knew that Ms. Zimmerla had been murdered and that Petitioner was the last person seen with her in the area on the night she died. While such information is not overwhelming, it is sufficient to establish probable cause for arrest. See, e.g., People v. Cipriano, 431 Mich. 315, 338 (1988) (probable cause to arrest defendant existed where he was identified as last person seen with victims) see also Bishop v. Wairwright, 511 F.2d 664, 667 (5th Cir. 1975) (fact that petitioner was last person seen with girls whose bodies were found in woods supported probable cause determination); United States v. DeTella, 1997 WL 417902, *2 (N.D. Ill. 1997) (unpublished) (probable cause for arrest existed when petitioner was last person seen in public with victim and petitioner and victim signed into motel room from which blood-stained linens were found with victim's body).
Lastly, 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, 624 (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. Petitioner has made no such showing in this case. These ineffective assistance of trial and appellate counsel claims are thus barred by procedural default, are otherwise without merit, and do not warrant habeas relief.
C. State Court Adjudication Claim
Petitioner next claims that he is entitled to habeas relief because the Michigan Court of Appeals failed to rule on his claims that counsel was ineffective for failing to raise a proper defense and for failing to seek suppression of his confession following the remand. It is well-settled that state courts must apply their rules governing appellate review in a way that provides a fair opportunity to obtain an adjudication on the merits of an appeal. See Evitts v. Lucey, 469 U.S. 387, 405 (1985); Branch v. Turner, 37 F.3d 371, 375 (8th Cir. 1994). A state, however, may impose limits on appellate rights in keeping with due process to further legitimate interests. In this case, the Michigan Court of Appeals limited the issues on remand to the issue presented in the motion to remand — counsel's failure to raise a drug-ingestion temporary insanity defense. This was not error. The United States Court of Appeals for the Sixth Circuit has recognized that appellate courts have a legitimate interest in limiting remands to prevent multiple appeals and protracted litigation. See United States v. Campbell, 168 F.3d 263, 266 (6th Cir. 1999).
Further, Petitioner cannot establish that he was prejudiced by the Michigan Court of Appeals' refusal to address his claims. As discussed supra, the record does not support a temporary insanity due to drug ingestion defense, and Petitioner admitted killing (he victim in his pre-trial statements and trial testimony. Additionally, the record shows that Petitioner agreed to accompany police officers to the station for questioning and that police had probable cause for his arrest. Petitioner is thus not entitled to habeas relief on this claim.
D. Corpus Delicti Rule Claim
Lastly, Petitioner claims that the evidence was insufficient to convict him on felony murder because the prosecution failed to establish the corpus delicti of criminal sexual assault prior to seeking admission of his confession. Michigan has a corpus delicti rule which requires that the prosecution establish the substance of the crime charged independent of the defendant's own extrajudicial statements. See People v. Williams, 422 Mich. 381, 388 (1985). The Michigan courts resolved this state law issue. A federal habeas corpus court may not review a state court's decision applying purely state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state court determinations on state law questions"). Michigan's corpus delicti rule is a state court rule only. It has no independent constitutional basis and is not constitutionally mandated. See Williams v. LeCureaux, 9 F.3d 111, 1993 WL 445090, *1 (6th Cir. Nov. 2, 1993) (unpublished); accord Lucas v. Johnson, 132 F.3d 1069, 1077 (5th Cir. 1998). Therefore, Petitioner's claim that the corpus delicti of his underlying felony for conviction on the felony murder charge was not established independently of his incriminating statements is not reviewable in this federal habeas action. Petitioner is not entitled to relief on this claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to habeas relief on the claims presented. Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DENIED.