Opinion
Case No. 99-CV-75474-DT.
October 31, 2000.
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR SUPERINTENDING CONTROL
Petitioner Charles Flagg, Sr., a state prisoner currently confined at the Mound Correctional Facility in Detroit, Michigan, has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted of one count of first-degree murder, seven counts of assault with intent to murder, and one count of felony firearm following a bifurcated jury trial with co-defendant Michael Shields in the Recorder's Court for the City of Detroit in 1995. Petitioner was sentenced to life imprisonment without parole on the murder conviction, concurrent terms of life imprisonment with parole on the assault convictions, and a consecutive term of two years imprisonment on the felony firearm conviction.
In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the effectiveness of counsel, the transferred intent jury instruction, prosecutorial misconduct, illegal arrest and improper search and seizure, perjured testimony, the felony firearm sentence, and cumulative error. For the reasons stated below, Petitioner's request for habeas relief is denied and his petition for writ of habeas corpus is dismissed.
I. Facts
Petitioner's arrest and convictions arise from a June 28, 1994 drive-by shooting near Sturtevant and LaSalle streets in Detroit, Michigan in which Nicole Lee was killed and seven other people were injured. The testimony presented at trial revealed that Petitioner, his son Charles Flagg, Jr., Marvin Mines, and Michael Shields armed themselves at Petitioner's and Mines' residence on Buena Vista street, got into a van, drove to a nearby street corner, and fired several shots into a group of people in retaliation for an earlier shooting at Petitioner's home.
At trial, Romita Harris, one of the surviving victims of the shooting, described the incident and her injuries. Ms. Harris stated that she saw a dark-colored van pull up near her and several friends on LaSalle just before midnight on June 28, 1994. She saw one person hanging out of the passenger window shooting at them, but heard 40-50 gunshots, which sounded like they came from different weapons. During the shooting, Ms. Harris ducked down and huddled with Ms. Lee and a few others. Ms. Harris was shot in her right thigh and both feet. She could not identify any of the shooters from the van.
Other victims of the shooting also testified at trial. They recalled seeing a dark-colored van driving toward them with unidentified people shooting from the van. Most of the injuries sustained by these victims were to their legs and feet. One victim, Deon Thomas, testified that shortly before the shootings, he had a fight with a friend named Carlos Jennings. Some witnesses testified that Mr. Jennings returned to the area at the time the shootings occurred.
Angela Jones, a witness to the shootings, testified that she was across the street from the victims when the shooting occurred and that she gave police several statements. At trial, she first testified that she saw men in a van shooting, but then described the vehicle as a black Bronco. She only saw the driver and the passenger, who was leaning out of the passenger window and firing an automatic weapon. Ms. Jones heard 30 to 40 shots fired from different types of guns. When the shooting started, Ms. Jones laid on the ground, but then ran into someone's backyard until the shooting stopped. Ms. Jones' police statement indicated that she told officers that the shooters lived on Buena Vista street and that she knew their faces, but did not know their names. The statement also indicated that Ms. Jones described the house as a two or four-family brown brick house and identified it to police officers on the night of the shooting. At trial, Ms. Jones denied that she gave the police officers this information, but admitted that she drove to Buena Vista with police officers after the shooting and pointed out a black Bronco. Ms. Jones identified Michael Shields as the man she saw hanging out of the vehicle's window.
Carl O'Neal, owner of a 1992 burgundy Plymouth Voyager minivan, testified that his minivan was reported stolen on June 26, 1994 and found on June 30, 1994. The front window had been shattered, the back left window was out, and bullet and shotgun shells, beer, cups, and cigarette butts were found inside the van. Police confiscated the bullet and shotgun shells.
Several police officers testified at trial, recounting their investigation of the shooting. Police officers Gregory Jones and Jason Marzette described their arrest of Petitioner and the other suspects at Marvin Mines' upper flat (above Petitioner's residence) following the shooting. The officers testified that Petitioner opened the door for police to enter and Mr. Mines consented to a search. The officers seized a .32 caliber gun, a .12 gauge sawed off shotgun, and a spent shotgun shell from the Mines' apartment and a .16 gauge shotgun from the basement. They arrested Petitioner and the other men who were present and took them in for questioning.
Police evidence technicians recovered seven .32 cartridges from the scene of the shootings. They also recovered three shotgun casings and five spent .32 automatic cartridges from the van police believed was used in the shootings. Firearm identification expert David Pauch testified that the .32 caliber gun found at Mines' apartment matched five .32 cartridges recovered from the burgundy van. Although the seven .32 cartridges found at the crime scene were fired from the same weapon, they were not fired from the .32 caliber gun found in Mines' apartment. The shotgun shells recovered from the van were fired from the same .12 gauge shotgun, but not from the .12 gauge shotgun found in Mines' apartment. However, one of the shells found in the van matched the .16 gauge shotgun recovered from Mines' residence. Physician testimony and an autopsy report revealed that Nicole Lee died from a shotgun wound to the back.
Two neighbors who observed Petitioner get into the van involved in the drive-by shooting also testified at trial. Both witnesses, Larry Ricks and Antoine Parkman, were brought in for questioning by police following the shooting.
Larry Ricks testified that a shootout occurred at Petitioner's house on the morning of June 28, 1994. Mr. Ricks saw Petitioner and Michael Shields on the porch and saw Shields firing a weapon, but he did not see the intended target(s). Mr. Ricks further testified that he saw Petitioner, Charles Flagg, Jr., Marvin Mines, and Michael Shields get into a burgundy van and leave Petitioner's home around midnight that evening. Mr. Ricks stated that Petitioner and Marvin Mines were armed with shotguns and that Charles Flagg, Jr. was armed with a pistol. The van headed east and turned onto LaSalle street. Mr. Ricks then heard numerous gunshots. The van returned a few minutes later while he was on his porch with Antoine Parkman. Mr. Ricks saw Petitioner, Mines, and Flagg, Jr. exit the van and enter Petitioner's house. Shields drove off and returned on foot. Mr. Ricks testified that Petitioner was carrying a .12 gauge shotgun as he exited the van, but Mr. Ricks did not know if the other men had weapons. None of the men spoke to Mr. Ricks as they entered Petitioner's house. Mr. Ricks admitted that he had smoked marijuana earlier that day and that he drank beer that evening.
Mr. Ricks testified that he did not give the police officer who initially questioned him a statement because that officer was rude. Mr. Ricks gave a statement to another police officer who treated him nicely the next day. Mr. Ricks also stated that he received a letter from Petitioner's wife prior to trial. The first page of the letter consisted of Mr. Ricks' initial police statement. The second contained some instructions regarding Petitioner's trial and whether Mr. Ricks should appear. The letter was not admitted into evidence.
Antoine Parkman testified that he saw Petitioner, Charles Flagg, Jr., Marvin Mines, and Michael Shields get into a van and drive away from Petitioner's home on the night of the shooting. Mr. Parkman believed that Petitioner had a 40-ounce beer in his hand when he entered the van. Mr. Parkman acknowledged that his police statement and preliminary examination testimony indicated that Petitioner and Marvin Mines were armed with shotguns when they entered the van, but Mr. Parkman testified at trial that he did not see whether anyone was carrying weapons when they entered the van. Mr. Parkman stated that he merely told police that Petitioner had something in his hands when he entered the van. After the van drove off in the direction of Sturtevant and LaSalle, Mr. Parkman heard several gunshots. When the van returned a few moments later, the same four people exited the van. Mr. Parkman stated that he, the defendants, and several other men were drinking alcohol and smoking marijuana on the night of the shootings.
Petitioner did not present any witnesses at trial, nor did he testify on his own behalf. Petitioner relied upon the defense that no one identified him as a participant in the shooting, that Carlos Jennings was in the area when the shootings occurred, that the witnesses' testimony was not credible, and that the prosecution failed to meet its burden of proof.
At the close of trial, the jury found Petitioner guilty of one count of first-degree murder, seven counts of assault with intent to murder, and one count of felony firearm. The trial court subsequently sentenced Petitioner to life imprisonment without parole on the murder conviction, concurrent terms of life imprisonment with parole on the assault convictions, and a consecutive term of two years imprisonment on the felony firearm conviction.
II. Procedural History
Following his convictions 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 clearly erred in denying the defense's motion for directed verdict where there was insufficient evidence to support the first degree premeditated murder charge and the assault with intent to murder charges.
II. Appellant was denied his constitutional right to effective assistance of counsel, therefore, he is entitled to a hearing pursuant to People v. Ginther, 390 Mich. 436 (1973), and/or a new trial.
A. Defense counsel failed to move for suppression of evidence seized following appellant's illegal arrest.
B. Defense counsel failed to produce res gestae witnesses who would have benefitted the appellant.
C. Defense counsel failed to move for a mistrial when the prosecutor interjected prejudicial hearsay into the trial.
D. Defense counsel did not insure fair conditions at trial.
III. Appellant was denied a fair trial by the prosecutor's misconduct in violation of the Due Process Clause.
A. The prosecutor denied appellant a fair trial by the interjection of prejudicial comments and evidence.
B. Appellant was denied a fair trial by the prosecutor's improper argument.
IV. The trial court's failure to properly instruct the jury denied appellant his right to a fair trial as guaranteed by both the Federal and State Constitutions.
Petitioner also raised the following issues in a brief filed in pro per:
I. Appellant was denied his constitutional rights due to an illegal search and seizure and an illegal arrest.
II. Appellant was denied a fair trial due to perjury at his trial.
III. There was insufficient evidence to convict appellant of the charges.
IV. The examining magistrate abused her discretion in binding appellant over for trial.
The Court of Appeals affirmed Petitioner's convictions in an unpublished per curiam decision. People v. Charles Flagg, Sr., No. 188806, *1-5 (Mich.Ct.App. Dec. 16, 1997).
Petitioner thereafter filed an application for leave to appeal with the Michigan Supreme Court, which was denied because the Court was "not persuaded that the questions presented should be reviewed." People v. Charles Flagg, Sr., No. 111408 (Mich. Nov. 24, 1998).
Petitioner filed the present petition for writ of habeas corpus on November 16, 1999, raising the same claims presented to the Michigan appellate courts by counsel. Respondent filed an answer to the petition on May 30, 2000. Petitioner filed a reply to that answer on June 14, 2000, asserting a claim of cumulative error. Petitioner filed a supplement to his habeas petition on August 7, 2000, raising the claims that he asserted in pro per before the Michigan appellate courts.
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), cert. denied ___ U.S. ___, 119 S.Ct. 2403 (1999).
IV. Discussion A. Insufficient Evidence Claim
Petitioner first claims that the evidence was insufficient to convict him on the murder and assault charges because there was insufficient evidence of premeditation and deliberation.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, Huynh v. King, 95 F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995), this Court must determine whether the state court's application of the Jackson standard was reasonable.
Under Michigan law, first-degree premeditated murder requires proof that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a second look. Id. Premeditation and deliberation may be established by evidence of "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." Id. Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993). To prove assault with intent to murder, the prosecution must establish an assault with an actual intent to kill, which, if successful, would make the killing murder. People v. Davis, 216 Mich. App. 47, 53, 549 N.W.2d 1 (1996). As with murder, the intent to kill may be inferred from any acts in evidence. Id.
In this case, the Michigan Court of Appeals applied the Jackson standard in concluding that the trial court properly denied Petitioner's motion for directed verdict. The Michigan Court of Appeals stated:
A trial court's ruling on a motion for directed verdict is reviewed by considering, in a light most favorable to the prosecution, the evidence admitted by the prosecution up to the time the motion is made to determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt.
* * *
Considered in a light most favorable to the prosecution, the evidence demonstrates that [Petitioner] got into the van with at least three other men, at least two of whom were armed. He was seen by one witness carrying a shotgun into the van. After the van drove away and engaged in the shooting, it returned and [Petitioner] was seen exiting the van with the same gun he carried into the van. At the scene, the victims testified that they heard different kinds of gunshots. Many shots were fired as the victims either dropped to the ground or ran away. From these facts, premeditation and deliberation can be inferred. Thus, the evidence could have allowed a rational fact finder to find the essential elements of first-degree murder proven beyond a reasonable doubt.
* * *
On the same evidence as that above, we find that the prosecution presented sufficient evidence of intent for the assault with intent to murder convictions.People v. Charles Flagg, Sr., No. 188806, *2-3 (Mich.Ct.App. Dec. 16, 1997) (text and citations omitted).
Having carefully reviewed the record, this Court cannot conclude that the Michigan Court of Appeals' determination that the facts demonstrated Petitioner's intent to kill and premeditation and deliberation is unreasonable. The testimony presented at trial revealed that Petitioner and his cohorts armed themselves with guns, drove to the area where the victims were located, and fired their weapons into the group of people in retaliation for an earlier shooting at Petitioner's residence. Given this evidence, a rational trier of fact could find that the prosecution established beyond a reasonable doubt that Petitioner acted with the intent to kill, as well as premeditation and deliberation.
Petitioner's insufficient evidence claim essentially challenges the inferences that the jury drew from the testimony presented at trial and challenges the weight to be accorded certain pieces of evidence. However, it is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). Given the evidence presented at trial, this Court finds that a rational trier of fact could have found that Petitioner acted with the intent to kill and premeditation and deliberation so as to support his murder and assault convictions beyond a reasonable doubt. Petitioner is therefore not entitled to relief on this claim.
B. Ineffective Assistance Claims
Petitioner claims that trial counsel was ineffective for failing to seek suppression of the evidence seized after his allegedly illegal arrest, for failing to produce certain res gestae witnesses, for failing to seek a mistrial when the prosecution presented prejudicial hearsay testimony, and for failing to properly impeach a witness and question the firearms expert.
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. Scroggy, 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. Failure to seek suppression of evidence
Petitioner first claims that original trial counsel was ineffective for failing to seek suppression of evidence seized at the time of his alleged illegal arrest. In rejecting this claim, the Michigan Court of Appeals found that the police had probable cause to arrest Petitioner such that counsel was not ineffective for failing to seek suppression of the evidence. This Court concludes that the Michigan Court of Appeals' determination that Petitioner failed to show that counsel was ineffective is consistent with Supreme Court precedent and constitutes a reasonable application of federal law.
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 in this case indicates that police had at least one witness statement indicating that men living on Petitioner's street or in his house were involved in the shooting. While driving the witness in the area to locate the vehicle she believed was used in the shooting, police observed three men run into Petitioner's and Mines' residence from the porch. While such information is not overwhelming, it is sufficient to establish probable cause for arrest.
However, even if the police did not have probable cause to arrest Petitioner such that counsel was deficient in failing to seek suppression of the seized weapons, Petitioner cannot show that he was prejudiced by counsel's conduct. As discussed, supra, there was sufficient evidence to support Petitioner's convictions even without the weapons evidence — namely the testimony of Larry Ricks and Antoine Parkman. Petitioner is thus not entitled to habeas relief on this ineffective assistance of counsel claim.
2. Failure to call witnesses
Petitioner next claims that trial counsel was ineffective for failing to produce res gestae witnesses at trial. Petitioner alleges that unidentified witnesses would have testified that Larry Ricks was drunk on the night in question and that he returned to Petitioner's street at 12:30 a.m., well after the shooting occurred. The Michigan Court of Appeals concluded that Petitioner failed to overcome the presumption that counsel's decision about whom to call (or not call) as witnesses was sound trial strategy. The Court of Appeals found Petitioner failed to show that any of the proposed witnesses would have testified in the manner suggested or that any one particular witness's testimony would have benefitted him at trial. The Court also noted that one witness did testify that he did not see Petitioner with a gun. People v. Charles Flagg, Sr., No. 188806, *3 (Mich.Ct.App. Dec. 16, 1997).
Having reviewed the record, this Court finds that the Michigan Court of Appeals' decision is consistent with federal law and constitutes a reasonable application of that law. Petitioner has failed to show how he was prejudiced by counsel's decision not to produce additional witnesses. Larry Ricks admitted that he was drinking on the night of the shootings. Further, Antoine Parkman and Larry Ricks both testified that they saw Petitioner and the other men enter the van and drive away around midnight that evening. Petitioner has not presented any witnesses who would have testified otherwise. 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 is not entitled to habeas relief on this ineffective assistance of counsel claim.
3. Failure to move for mistrial based upon hearsay
Petitioner also claims that his attorney was ineffective for failing to seek a mistrial due to Mr. Ricks' testimony about the letter that he received from Petitioner. Petitioner asserts that this letter showed that he was incarcerated and was evidence of another bad act, i.e., interfering with a witness. The Michigan Court of Appeals found that Petitioner failed to demonstrate that he was denied the ability to receive a fair trial through counsel's alleged defective performance. People v. Charles Flagg, Sr., No. 188806, *3 (Mich.Ct.App. Dec. 16, 1997). The Michigan Court of Appeals' decision that Petitioner was not prejudiced by counsel's conduct in this regard is consistent with federal law and a reasonable application of that law. Other trial testimony established that Petitioner and the other men at Petitioner's and Marvin Mines' residence were arrested and detained following the shootings. Additionally, the letter was not admitted into evidence and the jurors were instructed that they should only consider evidence properly admitted at trial in rendering their decision. Petitioner has failed to show that he was prejudiced by counsel's failure to seek a mistrial. Petitioner is not entitled to habeas relief on this claim.
4. Failure to impeach a witness and question the firearms expert
Petitioner lastly claims that his attorney was ineffective for failing to sufficiently impeach witness Larry Ricks and for failing to question firearms expert David Pauch. The Michigan Court of Appeals concluded that Petitioner failed to show how he was prejudiced by trial counsel's conduct and failed to overcome the presumption that counsel's conduct in this regard was sound trial strategy. People v. Charles Flagg, Sr., No. 188806, *3-4 (Mich.Ct.App. Dec. 16, 1997). This Court finds that the Michigan Court of Appeals' decision is consistent with federal law and constitutes a reasonable application of that law. Larry Ricks' testimony at trial was largely consistent with his pre-trial statements to police and preliminary examination testimony. Petitioner does not indicate what information counsel should have used to impeach Mr. Ricks. Similarly, Petitioner does not indicate what questions counsel should have asked the firearms expert or how such questioning would have benefitted the defense. As noted, conclusory allegations do not provide a basis for habeas relief. Workman, 160 F.3d at 287; Zettlemoyer, 923 F.2d at 301. Petitioner is thus not entitled to habeas relief on this ineffective assistance of counsel claim.
D. Jury Instruction Claim
Petitioner also claims that he is entitled to habeas relief because the trial court erred in instructing the jury on transferred intent. 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 of a 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 Michigan Court of Appeals rendered the last reasoned opinion. In dismissing Petitioner's claim, the Court of Appeals relied upon a state procedural bar, explaining:
[Petitioner] next claims that the jury was improperly instructed. This issue is not preserved for review because [Petitioner] did not object to the alleged erroneous instruction. . . . In the absence of an objection to the jury instructions, this Court's review is limited to determining whether relief is necessary to avoid manifest injustice. . . . Because the evidence supports the prosecution's theory that it was possible that defendants were seeking to kill a particular person, but instead shot and killed another, the instruction on transferred intent did not constitute reversible error. . . . Relief on this issue is not necessary to avoid manifest injustice.People v. Charles Flagg, Sr., No. 188806, *4 (Mich.Ct.App. Dec. 16, 1997) (citations omitted).
The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, 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. Foltz, 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 Court of Appeals dismissed Petitioner's jury instruction claim based upon procedural default — his failure to object at trial.
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 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).
Petitioner neither alleges nor establishes cause to excuse his procedural default. Further, Petitioner cannot demonstrate actual prejudice, or that a fundamental miscarriage of justice has occurred. As noted by the Michigan Court of Appeals, the transferred intent instruction was supported by the evidence. The instruction did not deprive Petitioner of a fair trial. Petitioner's claim is thus barred by procedural default, lacks merit, and does not warrant habeas relief.
E. Prosecutorial Misconduct Claim
Petitioner next claims that he is entitled to habeas relief due to prosecutorial misconduct. Respondent asserts that this claim is also barred by procedural default. Again, this Court agrees. In dismissing Petitioner's prosecutorial claim, the Court of Appeals relied upon a state procedural bar, explaining:
Next, [Petitioner] argues that he was denied a fair trial through prosecutorial misconduct. This issue is not preserved because [Petitioner] failed to object to the alleged instances of prosecutorial misconduct. . . . Absent an objection to alleged misconduct, this Court's review is limited to whether the failure to review would result in a miscarriage of justice. . . . We find that the failure to review this issue would not result in a miscarriage of justice.People v. Charles Flagg, Sr., No. 188806, *4 (Mich.Ct.App. Dec. 16, 1997) (citations omitted).
As noted, the failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman, 501 U.S. at 750-51. In this case, the Michigan Court of Appeals dismissed Petitioner's prosecutorial misconduct claim based upon procedural default — his failure to object at trial. Petitioner has not established cause to excuse his procedural default. Further, Petitioner cannot demonstrate actual prejudice, or that a fundamental miscarriage of justice has occurred.
The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a prosecutorial misconduct claim, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Factors to be considered in weighing the extent of a prosecutor's misconduct are:
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.Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.'" Id. (citations omitted).
Petitioner objects to the prosecution's argument and solicitation of testimony regarding the letter Larry Ricks received from Petitioner's wife. This testimony was arguably relevant to Mr. Ricks' credibility. Even assuming that the prosecution erred in this regard, however, such conduct was not so pronounced or persistent as to deprive Petitioner of a fair trial. Moreover, the letter was not admitted into evidence. Additionally, the trial court instructed the jury that they were only to consider the evidence presented at trial and that the attorneys' statements were not evidence.
Petitioner also objects to the prosecution's characterization of him as the leader of those involved in the shooting and description of the shooting as retaliatory. These comments, however, were based upon the evidence presented at trial, namely the testimony of Larry Ricks. Petitioner has not shown that the prosecution's comments were improper or that they were so pronounced or persistent as to deprive him of a fair trial. Petitioner's prosecutorial misconduct claim is thus barred by procedural default, is otherwise without merit, and does not warrant habeas relief.
F. Fourth Amendment Claim
Petitioner next claims that he is entitled to habeas relief because his convictions result from an illegal arrest and search and seizure. Federal courts will not address a Fourth Amendment claim upon habeas review if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). The United States Court of Appeals for the Sixth Circuit, in Moore v. Cowan, 560 F.2d 1298 (6th Cir. 1977), concluded that Stone does not require that the state court rule on the merits of the claim. Id. at 1302. Rather, the state court need do no more than "take cognizance of the constitutional claim and rule in light thereof." Id. Thus, in deciding whether Petitioner received an opportunity for a full and fair hearing in the state court, this Court must determine whether the state court took "cognizance" of Petitioner's claim.
In this case, Petitioner did not seek a suppression hearing before the trial court, but presented his Fourth Amendment claim for the first time before the Michigan Court of Appeals. The Michigan Court of Appeals found his claim procedurally barred, stating:
Next, [Petitioner] argues that he was denied his constitutional rights due to an illegal search and seizure and an illegal arrest. This issue is not preserved because it was not raised below. . . . Moreover, [Petitioner] has failed to demonstrate that he could not have discovered and produced at trial the new evidence that is presented in support of his argument. . . . We may not consider this evidence on appeal because it is not part of the trial court record.People v. Charles Flagg, Sr., No. 188806, *4 (Mich.Ct.App. Dec. 16, 1997) (citations omitted). Additionally, in rejecting Petitioner's ineffective assistance of counsel claims, the Court of Appeals concluded that there was probable cause for Petitioner's arrest. Id. at *3
Given this decision, it is clear that the Michigan Court of Appeals was cognizant of Petitioner's Fourth Amendment claim. Pursuant to Stone v. Powell, the Michigan Court of Appeals' review and dismissal of Petitioner's Fourth Amendment claim on procedural grounds bars federal habeas review. See Riley v. Gray, 674 F.2d 522, 526 n. 3 (6th Cir. 1982) (noting that an independent and adequate state procedural ground may legitimately serve to frustrate a petitioner's opportunity to raise a Fourth Amendment claim); Johnson v. Meacham, 570 F.2d 918, 920 (10th Cir. 1978) (habeas review precluded where petitioner presented his Fourth Amendment claim to state supreme court and that court applied an adequate procedural ground in refusing to reach merits of the claim). Petitioner is therefore not entitled to habeas relief on this claim.
G. Perjury Claim
Petitioner also seems to claim that he is entitled to habeas relief because perjured police testimony was given to obtain the arrest warrant, at the preliminary examination, and/or at trial. Petitioner does not specify what testimony he believes was perjured. The Michigan Court of Appeals concluded that the issue was not preserved for review because Petitioner failed to object to the challenged testimony. People v. Charles Flagg, Sr., No. 188806, *4 (Mich.Ct.App. Dec. 16, 1997). As with Petitioner's prosecutorial misconduct and jury instruction claims, this perjury claim is barred by procedural default due to Petitioner's failure to make a timely objection. Petitioner neither alleges nor establishes cause to excuse the default. Furthermore, he does not establish prejudice or that a fundamental miscarriage of justice has occurred. Petitioner presents no evidence that the police engaged in perjury. As noted, conclusory allegations do not provide a basis for habeas relief. Workman, 160 F.3d at 287; Zettlemoyer, 923 F.2d at 301. Petitioner is thus not entitled to habeas relief on this claim.
H. Bind-Over Claim
Petitioner next claims that the state court magistrate judge erred in binding him over for trial. Under Michigan law, to bind over a defendant for trial, the court must find that a specific crime has been committed and probable cause to believe the defendant committed the crime charged. People v. King, 412 Mich. 145, 152-53, 312 N.W.2d 629 (1981). In determining whether bind-over is proper, a court should consider the credibility of the witnesses in addition to their competency, and the weight to be accorded their testimony. A court should not dismiss the charge when there is conflicting evidence or reasonable doubt about the defendant's guilt because those are issues for the jury. People v. Justice, 454 Mich. 334, 364-65, 562 N.W.2d 652 (1997). Circumstantial evidence and reasonable inferences may be sufficient to justify bind-over. People v. Coddington, 188 Mich. App. 584, 591, 470 N.W.2d 478 (1991).
In this case, the Michigan Court of Appeals concluded that the bind-over decision was proper, stating in part:
The evidence at the preliminary examination was sufficient to establish probable cause that [Petitioner] participated either directly or as an aider and abettor in the shootings. A witness saw him get into the van carrying a shotgun, and get out of the van with the shotgun after the shootings. There was evidence that the van was seen at the shooting.People v. Charles Flagg, Sr., No. 188806, *5 (Mich.Ct.App. Dec. 16, 1997).
This Court finds that the Court of Appeals' decision in this regard is reasonable and consistent with federal law. At the preliminary examination, the victims testified about the shooting and their injuries. Mr. Ricks and Mr. Parkman identified Petitioner as one of the men who, moments before the shooting occurred, entered a van similar to the one described by the victims, drove in the direction where the shooting occurred, and returned a few minutes after the shooting stopped. Mr. Ricks testified that Petitioner and two of the other men who entered the van were armed with guns. This testimony provided probable cause to believe that a murder and seven assaults with intent to murder occurred and that Petitioner was involved in the commission of those crimes. Petitioner cannot establish that the bind-over decision was improper. Petitioner is not entitled to habeas relief on this claim.
I. Sentencing Claim
Petitioner also seems to claim that he is entitled to habeas relief because the mandatory two year sentence on his felony firearm conviction violates the Michigan Constitution. Because this claim is based upon a perceived error of state law, it is not cognizable upon federal habeas review. See, e.g., 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"); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). Petitioner does not claim, nor is there any evidence, that his sentence constitutes cruel or unusual punishment or violates his federal due process rights. Petitioner is thus not entitled to habeas relief on this claim.
J. Cumulative Error Claim
Lastly, Petitioner raises an admittedly unexhausted claim of cumulative error. Generally, a federal district court should dismiss a "mixed" petition for a writ of habeas corpus, that is, one containing both exhausted and unexhausted claims, "leaving the prisoner with the choice of returning to state court to exhaust his claims or amending and resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy, 455 U.S. 509, 510, 522 (1982). While the exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987). For example, an unexhausted claim may be addressed if pursuit of a state court remedy would be futile, Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless such that addressing it would be efficient and not offend federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987). A habeas petition may be denied on the merits, notwithstanding the petitioner's failure to exhaust the remedies available in the state courts. 28 U.S.C. § 2254(b)(2).
Given this Court's determination that none of Petitioner's individual claims warrant habeas relief, this Court finds that Petitioner's claim that the cumulative effect of the alleged errors violated his due process rights is without merit. Petitioner is not entitled to habeas relief on the basis of alleged cumulative error.
V. Conclusion
Accordingly, for the reasons stated, the Court DENIES Petitioner's request for habeas relief and DISMISSES his petition for a writ of habeas corpus. Additionally, given this determination, the Court further DENIES Petitioner's motion for superintending control for clarification.