Opinion
Case Number: 01-10052-BC
December 17, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Arsner B. McCoy, presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, the petitioner challenges his state court convictions for felonious driving, Mich. Comp. Laws § 750.191, manslaughter with a motor vehicle, Mich. Comp. Laws § 750.321E, and leaving the scene of an accident. Mich. Comp. Laws § 257.617. The Court finds, contrary to the respondent's contention, that none of the petitioner's claims are procedurally defaulted. However, a review of the merits of each of the petitioner's arguments in his petition results in the conclusion that the petitioner is not confined in violation of the Constitution or laws of the United States. The Court, therefore, will deny the petition.
I.
Following a jury trial in the Recorder's Court for the City of Detroit, the petitioner was convicted of manslaughter with a motor vehicle, felonious driving, and leaving the scene of an accident. The petitioner's conviction arises out of the death of Cameron Sanders and the injury to Cameron's sister, Mindelynn. The two girls were attempting to cross Greenfield Road in Detroit at approximately 3:00 p.m. on February 3, 1995. They were standing on the yellow lines in the middle of the road, waiting for traffic to clear, when they were struck by a van. Cameron was killed instantly and Mindelynn was injured.
At trial, Flin Fike testified that he was stopped at a red light at the intersection of Greenfield and Puritan Roads when he saw a van speed past. The van slowed to approximately twenty miles an hour to turn onto Puritan Road. Fike identified the petitioner as the driver of the van. Fike further testified that, after he realized that two people had been hit by a vehicle, he drove in the direction in which he had seen the van traveling moments earlier. He found the van abandoned in the middle of a side street a few blocks away. He also found a state photographic identification card on the ground outside the driver's side door. Fike said that the petitioner was the man pictured on the card. He also testified that he had seen the petitioner driving the van at a high rate of speed.
John Davis, who had been a passenger in Pike's car, also identified the petitioner as the driver of the van. Deandre Reeves also testified at trial, and stated that he saw the van strike the two girls while they were standing on Greenfield Road. He estimated that the van was going approximately fifty to fifty-five miles per hour when it hit the girls. A police officer testified that, although the registration on the van was expired, it had been registered to Gloria McCoy, the petitioner's wife. The petitioner did not testify in his own defense.
The jury convicted the petitioner as charged. On October 27, 1995, he was sentenced as a third habitual offender to custodial sentences of twelve to thirty years for manslaughter, three to ten years for felonious driving, and one to four years for leaving the scene of an accident.
The petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Was there insufficient evidence to justify a verdict of guilty beyond a reasonable doubt?
II. Are defendant's sentences disproportionate to the crimes committed by this habitual offender and to the offense committed?
The Michigan Court of Appeals affirmed the petitioner's convictions and sentences. People v. McCoy, No. 191854 (Mich.Ct.App. May 16, 1997). The petitioner presented the same claims in an application for leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. McCoy, No. 109937 (Mich. Apr. 27, 1998). The petitioner moved for reconsideration, which was also denied. People v. McCoy, No. 109937 (Mich. July 28, 1998).
Next, the petitioner filed a motion for relief from judgment in the trial court raising the following claims:
I. Defendant Arsner McCoy is entitled to be resentenced where the sentencing judge failed to recognize that he had discretion to impose a lesser maximum sentence than the thirty years allowed under the habitual offender statute.
II. Defendant Arsner McCoy is entitled to be resentenced where the notice of intent to enhance sentence (supplemental information) was fatally defective and an invalid enhanced sentence was imposed.
III. The trial court's preliminary instruction completely foreclosed the opportunity for the jury to have testimony reread and denied him of his right to a fair trial and impartial jury.
IV. The trial court's failure to hold an evidentiary hearing on the suppression of tainted identification testimony before allowing its admission denied defendant Arsner McCoy his right to due process of law and a fair trial.
V. The trial court's failure to ascertain on the record whether defendant Arsner McCoy intelligently and knowingly waived his right to testify requires a new trial.
VI. Defendant Arsner McCoy is entitled to an evidentiary hearing on his claim of ineffective counsel resulting in an involuntary waiver of his right to testify pursuant to Gonzalez v. Elo, 972 F. Supp. 417 (E.D. Mich. 1997).
VII. Defendant Arsner McCoy's right to due process of law was violated where he was not arraigned on the criminal information and not given notice of the charges against him, therefore, a new trial should be granted.
VIII. Manifest injustice occurred where the trial court refused to give a requested cautionary instruction on identification unless the prosecutor agreed to the instruction and denied defendant Arsner McCoy a fair and impartial jury in violation of the federal and state constitutions.
IX. Defendant Arsner McCoy was denied the effective assistance of counsel guaranteed him by the federal and state constitutions at trial and is entitled to an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 473 (1973).
X. The cumulative effect of the foregoing errors denied defendant Arsner McCoy a fair trial and requires reversal.
XI. Defendant Arsner McCoy is entitled to relief from judgment of his convictions and sentence where his appellate counsel denied him his right to effective assistance of counsel under the Sixth and Fourteenth amendments of the Constitution by failing to present his claims in his appeal of right.
The trial court denied the petitioner's motion for relief from judgment. People v. McCoy, No. 95-003276 (Third Judicial Circuit Court Apr. 13, 2000). The petitioner filed applications for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals and Michigan Supreme Court, both of which were denied. People v. McCoy, No. 226931 (Mich.Ct.App. Sept. 8, 2000); People v. McCoy, No. 117746 (Mich. Apr. 30, 2001).
The petitioner then filed the pending application for a writ of habeas corpus, presenting the following claims for relief:
I. Trial court failed to hold evidentiary hearing on suppression of tainted identification testimony.
II. Petitioner was not arraigned on the criminal information nor given notice of the charges against him.
III. Trial court failed to ascertain on the record whether petitioner intelligently and knowingly waived his right to testify.
IV. Trial court failed to give a requested cautionary instruction on identification testimony.
V. Denial of effective assistance of counsel.
VI. Denial of effective assistance of appellate counsel.
VII. There was insufficient evidence to justify a verdict of guilty beyond a reasonable doubt.
II.
The petitioner's 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 "circumscribe [d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). 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). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 123 S.Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). 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."). As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410-11. See also McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
As the respondent observes, none of the petitioner's arguments but the sufficiency of evidence claim were raised in the state court on direct appeal. Since they were raised for the first time in the state court on collateral review, the respondent argues that those claims are procedurally defaulted and cannot be reviewed on the merits unless a showing of cause for the failure to raise them on direct appeal is made, and prejudice as a result of the alleged errors is demonstrated. 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 750, 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 E3d 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 E3d 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 536 U.S. 947 (2002); Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). 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 may be 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 last state court from which the petitioner sought review, the Michigan Supreme Court, denied relief in a standard order for "fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D)." McCoy, No. 117746. The Michigan Court of Appeals denied relief using the same language. McCoy, No. 226931. The text of Mich. Ct. R. 6.508(D) states:
(D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is subject to challenge on appeal pursuant to subchapter 7.200 or subchapter 7.300;
(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision;
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, "actual prejudice" means that,
(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal;
(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo contendere, the defect in the proceedings was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case;
(iv) in the case of a challenge to the sentence, the sentence is invalid. The court may waive the "good cause" requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.
This clearly is a rule of procedure intended to mimic the federal "cause and prejudice" test. See Wainwright v. Sykes, 433 U.S. 72, 82 (1977).
In Simpson v. Jones, 238 E3d 399 (6th Cir. 2000), the Sixth Circuit held that a statement by the Michigan Supreme Court that a defendant "failed to `meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)'" constituted invocation of "an independent and adequate state procedural rule" sufficient to "prevent federal habeas review." Id. at 407-08. In that case, the petitioner filed two motions for collateral review in the state court following his direct appeal. The trial court granted partial relief on the first and the petitioner never appealed the adverse portion of that ruling. The state trial judge denied the second motion on the basis of Mich. Ct. R. 6.508(D) alone and did not address the merits of those claims. The state supreme court's order denying leave to appeal, albeit a form order, was responsive to the issue addressed by the lower court. A similar result occurred in Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002), in which the state trial court denied post-conviction relief both on the merits and on the ground of procedural default. Id. at 413-14.
The problem with applying the Simpson and Burroughs rationales in this case, however, is that the last reasoned state court judgment — the trial court's decision denying the motion for relief from judgment — reached the merits of the claim, never invoking a procedural bar, and the state never made the procedural default argument in the state appellate courts. The petitioner was not called upon to address the issue in the state court because the state trial court ignored it and the respondent never put the issue in play. The procedural issue, quite simply, was never litigated by either of the parties, and the form orders of the state appellate courts referencing Mich. Ct. R. 6.508(D) constitute little more than a non sequitur. The Court finds that the procedural circumstances in this case are materially different than in Simpson and Burroughs, which therefore do not govern the issue. Given the reasoning of the state trial judge who adjudicated the merits of several of the issues the petitioner raised in his post-conviction motion, and in the context of the entire proceedings, the Court finds that the state procedural bar raised by the respondent does not constitute an adequate and independent basis for the state courts' decisions on this issue in this case. See Williams v. Jones, 231 F. Supp.2d 586, 595-97 (E.D. Mich. 2002).
A.
The petitioner's fifth and sixth issues allege ineffective assistance of trial and appellate counsel, respectively. His first four arguments are bound up with the fifth and sixth issues, since the petitioner addressed the ineffective assistance of counsel claims in the context of establishing "cause" for a procedural default, should this Court find that the last reasoned state decision was based on an independent state procedural ground. The Court will consider the merits of those first six issues in that framework.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test for determining whether a habeas petitioner has received 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 counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced the petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Ibid.
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (internal citations omitted).
The Court further explained that to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Ibid. To satisfy the prejudice prong, 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must 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), cert. denied 520 U.S. 1257 (1997).
The petitioner claims that his appellate attorney was ineffective for failing to raise on direct appeal in state court the issues raised here. The Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). The Court further stated:
For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the . . . goal of vigorous and effective advocacy. . . . Nothing in the Constitution or our interpretation of that document requires such a standard.Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
The Court will examine each of the petitioner's claims alleged for the first time in the state court motion for collateral relief in turn to determine whether appellate counsel was ineffective in failing to raise these claims.
1.
First, the petitioner claims that his appellate attorney was ineffective for failing to present the claim on appeal that the trial court erred by not holding an evidentiary hearing on the petitioner's motion to suppress identification testimony. The petitioner's trial attorney moved to suppress the identification testimony of Flin Fike, arguing that because Fike saw a picture of the petitioner on an identification card prior to identifying the petitioner in a police lineup, his identification of the petitioner was tainted and should have been suppressed. The trial court held that the identification was not improperly tainted and permitted identification testimony without the benefit of an evidentiary hearing.
At trial, Mr. Fike testified that on February 13, 1995, at approximately 3:00 p.m., he was stopped at a red light on Puritan Road at the intersection of Greenfield Road. His was the first car stopped at the light. Fike then noticed a van speeding down Greenfield Road toward the light. The light turned green for Mr. Fike, but he did not proceed through the intersection because the van was not stopping. The van turned left onto Puritan. Fike testified that he saw the van driver's face as the van proceeded past him and, at trial, identified the petitioner as the driver. Mr. Fike further testified that he noticed that the van's windshield was damaged, as were the left front bumper and driver's side window, there was a dent on the side of the van, and the driver's side mirror was damaged.
Mr. Fike turned right onto Greenfield Road and after driving a short distance he saw two bodies lying in the road. He then turned around to follow the van. A short while later, he found the van abandoned in the middle of a side street. Fike found an identification card on the ground outside the driver's side door. Mr. Fike identified the petitioner as the driver of the van at a police line-up. At trial, Mr. Fike identified the person on the identification card as the petitioner.
"A conviction based on identification testimony that follows a pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994). A court must undertake a two-step analysis to determine the validity of a pretrial identification. First, the court must determine whether the procedure was unduly suggestive. If the court finds that the procedure was unduly suggestive, the court must then "evaluate the totality of the circumstances to determine whether the identification was nevertheless reliable." Ibid. A court may consider the following factors in determining the reliability of an identification:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of observation; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness when confronting the defendant; and (5) the length of time between the crime and the confrontation.Id. at 1071 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).
The United States Supreme Court has held that where an in-court identification may have been influenced by an impermissibly suggestive out-of-court lineup, testimony concerning the identification may be admitted when "under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199 (1972).
Fike testified at trial that he could identify the petitioner from the view he had of the petitioner behind the wheel of the van; Fike said that he was paying particular attention to the van because of its high rate of speed and its damaged condition. There is no evidence that the photographic identification was the result of police conduct. Under the totality of the circumstances, this Court cannot say that the trial court's determination that the identification was reliable was contrary to or an unreasonable application of Supreme Court precedent. Moreover, the petitioner does not proffer any evidence that he might have brought out at an evidentiary hearing.
The Court does not believe that the record in this case presents a colorable issue on whether an evidentiary hearing should have been conducted on the motion to suppress Fisk's identification. There is no merit to that issue on habeas. A fortiori, appellate counsel was not ineffective for failing to raise this claim on appeal.
2.
Next, the petitioner claims that his appellate attorney was ineffective for failing to present the claim on direct review that the petitioner was not arraigned on the criminal information nor given notice of the charges against him. The transcript of the arraignment on the information indicates that the petitioner's attorney waived the formal reading of the information. The petitioner alleges that his attorney waived the reading of the information without authorization from him. The petitioner does not claim, however, that his attorney failed to discuss the charges with him or apprize him of the evidence in the case. The petitioner provides no evidence that he suffered prejudice as a result of his attorney's waiver of the formal reading of the information. This claim is devoid of merit in its own right. Thus, the petitioner's appellate attorney was not ineffective in failing to raise on appeal the claim that the petitioner was not arraigned or that his attorney was ineffective in waiving the formal reading of the information.
3.
Third, the petitioner claims that his appellate attorney was ineffective for failing to raise the claim on appeal that the trial court failed to ascertain on the record whether the petitioner knowingly and intelligently waived his right to testify. A criminal defendant has a constitutional right to testify in his own behalf. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, it has been held that a "barebones assertion by a defendant, [even one] made under oath, is insufficient to require a hearing or other action on his claim that his right to testify in his own defense was denied him. It just is too facile a tactic to be allowed to succeed. Some greater particularity is necessary . . . to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim." Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991). Accord Chang v. U.S., 250 F.3d 79, 84-85 (2d Cir. 2001); Sciliano v. Vose, 834 F.2d 29, 31 (1st Cir. 1987). The petitioner makes only a bald assertion that his attorney did not inform him of his right to testify. The petitioner does not claim that he was misled or that he believed that he was not allowed to testify in his case. A reasonable appellate attorney would not have been expected to raise such an unsupported claim on direct appeal. Moreover, this claim does not warrant habeas relief on its own merit.
4.
Fourth, the petitioner claims that his appellate attorney was ineffective for failing to present the claim on appeal that the trial court erred in declining to give a requested instruction regarding the potential influence of an identification card on identification testimony. However, the trial court did give the following instruction regarding identification testimony:
Now one of the issues in this case is identification of the defendant as the person that committed the crime. The prosecution must prove beyond a reasonable doubt that the crime was committed and also that defendant was the person that committed it. In deciding how dependable an identification is think about such things as how good a chance the witness had to see the offender at the time. How long the witnesses were watching. Whether the witnesses had seen or known the offender before. How far away the witnesses were, whether the area was well lit and the witness' state of mind at the time. Also, think about the circumstances at the time of any later identification, such as how much time had passed since the crime or how sure the witness or witnesses were about the identification and the witness' state of mind during the identification. You should examine a witness' identification testimony carefully. You may consider whether other evidence supports the identification because then it may be more reliable. However, you may use the identification testimony alone to convict the defendant as long as you believe the testimony and you find that it proves beyond a reasonable doubt that the defendant was the person that committed the crime.
Trial Transcript, 10/5/95, pp. 10-11.
This instruction accurately informed the jury of the factors it could consider in evaluating identification testimony. The petitioner cites no federal or state case law supporting his claim that the trial court should have given an additional instruction. Thus, the petitioner's appellate attorney was not ineffective in failing to challenge the jury instructions on direct review, nor does the underlying claim itself call for issuance of the writ.
5.
Finally, the petitioner claims that his appellate attorney should have presented numerous claims of ineffective assistance of trial counsel on direct appeal. Specifically, the petitioner claims that his trial counsel was ineffective in failing to (1) object to the sentencing judge's abuse of discretion in imposing maximum sentence on habitual charge; (2) contest supplemental information during habitual offender proceedings; (3) object when trial court told the jury no transcript would be available from which testimony would be reread; (4) advise petitioner of his right to testify; (5) investigate and present a defense; (6) file pre-trial motions to suppress tainted identification testimony.
On direct appeal, the petitioner argued that his sentence was disproportionate. The Michigan Court of Appeals held that the sentence was proportionate considering the seriousness of the petitioner's crime and his extensive criminal history. Therefore, the petitioner's trial attorney was not ineffective in failing to object to a sentence that the state appellate court held to be appropriate.
On March 31, 1995, the prosecutor filed a supplemental information to enhance the petitioner's sentence as a third habitual offender. The prior convictions were listed as first-degree murder and violation of the Controlled Substance Act. The petitioner claims that supplemental information was inaccurate because the murder conviction was for second-degree murder, not first-degree murder. Thus, the petitioner argues, his attorney should have objected to and moved to quash the supplemental information. However, the record reflects that on October 5, 1995, following the jury's return of a verdict, the information was corrected to reflect the second-degree rather than first-degree prior conviction for murder. The petitioner was sentenced more than 21 days later, on October 27, 1995. Thus, he had adequate notice of the convictions upon which the habitual offender charge was predicated, and his attorney was not ineffective in failing to contest the supplemental information.
Next, at the outset of voir dire, the trial judge introduced to the jury pool the court personnel seated in the courtroom, including the court reporter. After introducing the court reporter and advising the jury pool that she would be taking down everything said in the courtroom, the trial judge advised the jury that this did not mean that they did not have to be attentive to the courtroom proceedings:
One other thing about [the court reporter's] function that people are sometimes confused about is the fact that sometimes people believe that there is a transcript of the testimony available for you to use when you deliberate and decide the case. However, I want to tell you now that there won't be a transcript of the testimony available for you to use. So it's very important that you listen carefully to the evidence and the testimony when it comes in because you're going to have to rely on your individual and collective recollection as to what you recall the evidence and the testimony to be.
Trial Transcript, 10/2/95, pp. 6-7.
The trial judge's comment clearly was intended to compel the jury to pay careful attention to all of the court proceedings. The trial judge did not specifically foreclose the rereading of testimony to the jury; rather, he simply advised the jury that he would not provide them access to the trial transcript. In addition, a judge has broad discretion regarding the rereading of trial testimony. United States v. Toney, 440 F.2d 590, 592 (6th Cir. 1971). None of the state court decisions cited by the petitioner support his claim that the trial court's comment was improper. Nor does the petitioner cite any federal law supporting his argument.
Moreover, in its final instructions, the trial court told the jury that if it wanted to communicate with the judge during deliberations, the foreperson should write a note to the judge. In addition, the trial court advised the jury that if they needed to view any of the exhibits again, the foreperson should write a note to the judge requesting the exhibit. The jury did communicate with the judge during deliberations by requesting clarification of the manslaughter and negligent homicide instructions. Thus, although the trial court did not specifically advise the jury that they could request testimony be reread, the trial court left open the possibility for communication between the jury and judge. The petitioner has not shown that the trial court's comment during voir dire was inappropriate. Therefore, his trial attorney was not ineffective in failing to object to it.
Next, the petitioner's claim that his trial counsel was ineffective for failing to investigate and present a defense is unsupported by any facts. There is no suggestion of any defense that might have been pursued by counsel. In order to establish ineffective assistance of counsel, a petitioner must make more than merely speculative, vague assertions. Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir. 1985). The petitioner fails to provide any support for his conclusory claim that his trial attorney failed to investigate or present a defense. Thus, appellate counsel was not ineffective for failing to raise this claim on appeal.
Finally, the petitioner's claim that his trial attorney was ineffective in failing to present a pre-trial motion to suppress the so-called tainted identification testimony is undercut by the record. Trial counsel did move to suppress that testimony. The trial court denied his motion. The petitioner does not provide any reason why a pre-trial motion would have succeeded. Thus, he was not prejudiced by his attorney's failure to move to suppress in a pre-trial motion. Accordingly, appellate counsel was not ineffective in failing to present this claim on appeal.
The Court has concluded that the foregoing ineffective assistance of trial counsel claims lacked merit. Consequently, appellate counsel was not ineffective for failing to argue on appeal that trial counsel was ineffective.
B.
The petitioner next claims that the evidence is insufficient to convict him of manslaughter with a motor vehicle because there is not enough proof in the record to show that the petitioner drove his vehicle at a high rate of speed. As previously noted, the petitioner raised this claim on direct appeal in the state courts.
It is beyond debate that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Therefore, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is 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 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Pursuant to 28 U.S.C. § 2254(d)(1), this Court must determine whether the state court's application of the Jackson standard was contrary to or an unreasonable application of Supreme Court precedent. In making this determination, this Court must afford the state court's findings of fact a presumption of correctness unless it is established by clear and convincing evidence that the factual determination in the state court was erroneous. 28 U.S.C. § 2254(e)(1); West v. Seabold, 73 F.3d 81, 83 (6th Cir.), cert. denied, 518 U.S. 1027 (1996).
The last state court to address the petitioner's claim of insufficient evidence, the Michigan Court of Appeals, held, in pertinent part:
In reviewing claims of insufficiency of the evidence to sustain a verdict, this Court views the evidence in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. . . . An unlawful act, committed with the intent to injure or in a grossly negligent manner, that proximately causes death is involuntary manslaughter. . . . As with involuntary manslaughter, a conviction for felonious driving requires proof of gross negligence. . . .
Here, two sisters were standing on the yellow line in the middle of Greenfield Road waiting for traffic to clear when they were struck by a van driven by defendant. One of the sisters was killed, and the other injured. The accident occurred at approximately 3:00 p.m. on February 3, 1995, as the deceased was on her way home from school. The sole witness to the accident testified that the van was traveling at a speed of approximately fifty to fifty-five miles per hour. Defendant argues that this evidence was insufficient to show that he was driving in a grossly negligent manner at the time he struck the decedent.
In order to show gross negligence, the following elements must be established:
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. . . . [People v. Lardie, 452 Mich. 231, 251-252; 551 N.W.2d 656 (1996); People v. Orr, 243 Mich. 300, 307; 220 Mich. 777 (1928).] Here, there is no question that a jury could properly infer that defendant knew that he was driving, and that the act of driving requires the exercise of ordinary care and diligence to avert injury to others. Similarly, there is no question that a jury could properly infer under these facts that defendant had the ability to avoid harm that occurred by exercising ordinary care and diligence, but failed to do so. Accordingly, the only question is whether to the ordinary mind it must have been apparent that the result was likely to prove disastrous to another. Lardie, supra, p. 244 p; Orr, supra, p. 307.
Violation of the speeding law, by itself, is not adequate to establish the element of gross negligence. Lardie, supra, p. 244 . . . However, under the appropriate circumstances, violation of the speeding law can be gross negligence. To state the obvious, a jury could properly determine that traveling at a speed of 100 mph through a residential neighborhood is gross negligence. Similarly, given appropriate conditions, it is possible to drive in a grossly negligent manner even in the absence of exceeding the speed limit (e.g. in heavy traffic, slick roads, and/or fog). Accordingly, the appropriate consideration is not whether defendant was exceeding the speed limit, but rather, whether defendant acted with gross negligence under the totality of the circumstances including defendant's actual speed and the posted speed limit. . . .
Viewing the evidence in a light most favorable to the prosecution, a jury could reasonably find that at the time his van struck the two sisters, defendant was traveling at a speed of fifty-five miles per hour in a thirty-five mile per hour zone during heavy traffic conditions. In addition, a jury could reasonably find that this speed was "a lot faster than the rest of traffic," and significantly faster than the average speed on that stretch of road of forty to forty-five miles per hour. Finally, the two sisters had been standing in a stationary location for several seconds. The fact that defendant did not slow down or swerve in an attempt to avoid striking them suggests that he was traveling at a reckless speed. Viewing this evidence in the light most favorable to the prosecution, a reasonable jury could find that defendant was grossly negligent. . . .People v. McCoy, slip op. at 2-3.
The state court's findings of fact are entitled to a presumption of correctness. See Bowling v. Parker, 344 F.3d 487, 497 (6th Cir. 2003) (noting that "the findings of a state court are presumed to be correct and can only be contravened if [the petitioner] can show by clear and convincing evidence that they are erroneous," and that "the presumption of correctness also attaches to the factual findings of a state appellate court based on the state trial record") (citing 28 U.S.C. § 2254(e)(1) and Summer v. Mata, 449 U.S. 539, 546-47 (1981)). The petitioner has not presented any evidence that the state court's findings of fact were erroneous. The state court accurately articulated the applicable standard of review as set forth in Jackson v. Virginia. This Court concludes, therefore, that the state court of appeals' decision did not "result 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." 28 U.S.C. § 2254(d)(1). The petitioner is not entitled to federal habeas corpus relief with respect to this claim.
IV.
The Court finds that although none of the claims relating to the petitioner's conviction are procedurally defaulted, the claims lack merit, since the state court decisions are not contrary to, nor do they constitute an unreasonable application of, federal law. Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's motion for summary judgment [dkt # 16] is DENIED.