Opinion
Civil No. 99-CV-73476-DT.
June 8, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Paul Russ, ("petitioner"), confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on one count of first degree murder, M.C.L.A. 750.316; M.S.A. 28.548, one count of assault with intent to commit murder, M.C.L.A. 750.83; M.S.A. 28.278, and one count of felony firearm. M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted on the basis of the testimony of Maurice Kirk, who was in the company of Leonard Perry, a/k/a/ "Dino" in the City of Detroit on the night of August 6, 1984. Perry and petitioner had been involved in a dispute over Perry's relationship with petitioner's girlfriend. Perry's brother, in fact, had testified that a month prior to the shooting, petitioner had fired some shots at the victim but had missed him. On the evening in question, petitioner and another person were driving in petitioner's car, a gold Cadillac with a blacktop. Petitioner chased the car that Kirk and Perry were driving in, before firing shots at the men. Perry received a fatal wound to the head.
Petitioner's girlfriend testified that petitioner was at her house for the entire evening on the night of the killing. Petitioner's sister testified that she and petitioner shared her deceased father's Cadillac, which remained parked at her mother's house on North Campbell street in Detroit. She testified that she had taken the car at 7:00 or 8:00 p.m. that night and had returned to her mother's house with the car at approximately 11:00 p.m the same evening.
Petitioner's conviction was affirmed on appeal. People v. Russ, 84976 (Mich.Ct.App. March 1, 1988); lv. den. 82839 (Mich.Sup.Ct. November 2, 1988). Petitioner's subsequent motion for relief from judgment was denied by the trial court. People v. Russ, Detroit Recorder's Court # 84-004677, Order of the Court, dated May 30, 1997. The Michigan appellate courts denied leave to appeal. People v. Russ, 204105 (Mich.Ct.App. November 24, 1997); lv. den. 583 N.W.2d 901 (1998). Petitioner now seeks the a writ of habeas corpus on the following substantive grounds:
I. Petitioner was denied a fair trial by prosecutorial misconduct.
II. Petitioner was denied the effective assistance of counsel.
III. The trial court's instructions violated petitioner's right to a fair trial under both the state and federal constitutions.
Petitioner's two issues relating to whether his claims have been procedurally defaulted are not addressed because the respondent has conceded that his substantive claims are not procedurally barred by M.C.R. 6.508(D).
II. Standard of Review
28 U.S.C. § 2254 (d), as amended by the Antiterrorism and Effective Death Penalty Act (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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
With respect to the "contrary to" clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision will clearly 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 the Supreme Court's cases. Second, a state-court decision would also be contrary to the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, 120 S.Ct. 1495, 1519-1520 (2000). On the other hand, a "run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. at 1520. These cases should be reviewed under the "unreasonable application" language of § 2254(d)(1).
A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor, 120 S.Ct. at 1521. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. Thus, a federal habeas court may not issue a 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, the application must also be unreasonable. Id. at 1522.
III. Discussion
A. Claim # 1. The prosecutorial misconduct claim.
1. Standard of Review.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Id. Because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985).
2. The individual claims.
A. The prosecutor improperly vouched for the witnesses.
Petitioner first contends that the prosecutor improperly vouched for the credibility of his witnesses. The test for improper vouching for a witness is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987). In reviewing the prosecutor's comments, a jury would not reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witnesses. The prosecutor's remarks did not constitute improper vouching for the witnesses because the remarks were related to the inferences to be drawn from the evidence. Rodriguez v. Peters, 63 F.3d 546, 564-656 (7th Cir. 1995).
B. The prosecution asked the jurors to put themselves in the position of the complainant.
In his closing argument, the prosecutor asked the jurors to put themselves in Maurice Kirk's position to evaluate his state of mind at the time of the shooting. Although it is improper to ask jurors to put themselves in the place of the victim, See Roberts v. Delo, 205 F.3d 349, 351 (8th Cir. 2000), this rule does not apply here because the jury was being asked to put itself in the place of Kirk as an eyewitness to the crime. In this situation, the comment was not an improper appeal to the jury to base its decision on sympathy for the victim, but was rather a means of asking the jury to reconstruct the situation in order to decide whether the witness' testimony was plausible. United States v. Kirvan, 997 F.2d 963, 964 (1st Cir. 1993). The prosecutor's related comment asking the jury whether they would have wanted the police to forcibly enter petitioner's family home if they were the victim's family involved a collateral issue and therefore did not prejudice the petitioner.
C. The prosecution commented on the defendant's exercise of his Sixth Amendment rights.
Petitioner next complains that the prosecutor elicited testimony that petitioner was accompanied by his lawyer when he turned himself into the police and that his attorney was present for the lineup. In closing argument, the prosecutor again referred to the fact that petitioner had consulted with an attorney before turning himself in and asked the jurors to speculate on the contents of their discussion.
The Sixth Circuit recently rejected a similar prosecutorial misconduct claim in United States v. Tocco, 200 F.3d 401, 422-423 (6th Cir. 2000), ruling that evidence that the defendant had sought or consulted the advice of an attorney generally, did not impinge on the exercise of petitioner's right to consult with an attorney. In so ruling, the Sixth Circuit indicated that the mere act of hiring an attorney is simply not probative of a defendant's guilt or innocence. Id. at 423.
D. The prosecutor misstated the law and the burden of proof
Petitioner contends that the prosecutor misstated the elements of the offense of assault with intent to commit murder when he argued in his opening argument that the offense required an intent to kill or to do great bodily harm. However, the prosecutor corrected himself and later stated that the offense required an intent to kill. Moreover, because petitioner's trial occurred in February of 1985 and the Michigan Supreme Court did not decide People v. Taylor, 422 Mich. 554; 375 N.W.2d 1 (1985) (holding that assault with intent to murder requires an intent to kill) until September 17, 1985, the prosecutor did not deliberately misstate the law in Michigan at the time of the trial.
Petitioner also contends that the prosecutor's argument shifted the burden of proof. The prosecution's argument did not shift the burden of proof to petitioner because any possible prejudice which might otherwise have resulted from the comment was cured by the trial court's instructions regarding the proper burden of proof. Lugo v. Kuhlmann, 68 F. Supp.2d 347, 369 (S.D.N.Y. 1999).
E. The prosecutor violated the discovery order.
Petitioner lastly complains that the prosecutor violated the discovery order when he failed to provide the defense with a copy of a report made by two police officers who had been on surveillance of petitioner's mother's house and did not observe petitioner's car in front of the house until sometime after 2:30 a.m. Petitioner claims that as a result, his attorney was "sandbagged" into putting his sister on the stand to testify that she parked her car in front of the house at 11:00 p.m.
There are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). The prosecutor did not violate petitioner's constitutional rights in failing to turn over this police report to the defense because the evidence that petitioner's Cadillac did not return to his mother's house until 2:30 a.m. would not have been favorable to petitioner.
3. Conclusion
Petitioner was not deprived of a fair trial through prosecutorial misconduct.
B. Claim # 2. The ineffective assistance of counsel claim.
1. Standard of Review
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant 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.
2. The Individual Claims.
A. Counsel's lack of pre-trial investigation caused him to make a serious mistake in the trial strategy.
Petitioner first claims that counsel was ineffective for calling Officers Henderson and Hoffman to testify because the two officers testified that during their surveillance of petitioner's mother's home from approximately 11:20-11:30 p.m. until 1:45 a.m., they did not observe petitioner's Cadillac parked outside the house. The officers further testified that they did not observe the Cadillac outside of the home until sometime after 2:30 a.m. after they returned to the scene to resume surveillance of the house. The officers' testimony contradicted the testimony of petitioner's sister that she had parked the car outside of her mother's house at 11:00 p.m. that night.
Assuming that counsel was deficient in placing these officers on the stand, petitioner is unable to show that he was prejudiced by counsel's actions. Petitioner presented an alibi defense through the testimony of his girlfriend. His sister's testimony was not part of the alibi because her testimony did not account for petitioner's whereabouts at the time of the shooting. Alibi evidence is unlikely to affect a trial where it does not account for a defendant's presence at the time of the crime. See United States v. Ashimi, 932 F.2d 643, 649 (7th Cir. 1991). While the officers' testimony may have called into question the sister's testimony regarding when she brought the car home, it did not directly contradict petitioner's alibi defense. Moreover, because another witness, Billie Fortune, testified that he saw a gold Cadillac with a brown top chasing Kirk's car at the time of the shooting, there was evidence absent the officers' testimony placing petitioner's Cadillac away from the house at the time of the shooting.
B. Counsel shifted the burden of proof to the defense.
Petitioner next complains that counsel told the jurors in opening argument that he would prove that petitioner was elsewhere at the time of the crime and further mentioned that he would prove additional facts beyond a reasonable doubt. Any misstatements by defense counsel concerning the burden of proof were not so egregious as to constitute deficient representation, particularly where the trial court correctly instructed the jury that the prosecution bore the burden of proof. See Johnson v, Burke, 903 F.2d 1056, 1061 (6th Cir. 1990).
C. Counsel failed to object to a juror who knew Maurice Kirk from remaining on the jury.
After trial had commenced, Juror Fonseca informed the court that after seeing Maurice Kirk testify on direct examination, she remembered him being on the basketball team at Oakland University eleven years prior to the trial at the same time that she was a cheerleader at the school. Outside the presence of the other jurors, Fonseca indicated that she had only known Kirk through being acquainted with the same people and indicated that her prior relationship with Kirk would not have any influence on her in deciding the case.
In order to establish prejudice attributable to counsel's failure to remove a juror, petitioner must show that the juror was actually biased. Parker v. Turpin, 60 F. Supp.2d 1332, 1362 (N.D. Ga. 1999). Because nothing in Fonseca's responses to the trial court would have caused a reasonable attorney to doubt that she could be an unbiased juror, counsel was not ineffective for failing to seek her removal. See Odle v. Calderon, 919 F. Supp. 1367, 1389 (N.D. Cal. 1996).
D. Counsel failed to object to the prosecutorial misconduct and to the incorrect jury instructions.
Because the prosecutor's remarks in closing argument did not prejudice petitioner so as to deprive him of a fair trial, petitioner's claim that counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's remarks must also be rejected. United States v. Nwankwo, 2 F. Supp.2d 765, 770 (D. Md. 1998). Because the instructions as given by the trial court were not deficient, See Issue III, infra, trial counsel was not ineffective for failing to object to adequate jury instructions. See Cosme v. Elo, ___ F. Supp. 2d ___; 2000 WL 246592, * 6 (E.D. Mich. February 4, 2000).
3. Conclusion
Petitioner was not deprived of the effective assistance of counsel.
C. Claim # 3. The jury instruction claim.
The question in a habeas proceeding is whether the ailing jury instruction so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even "universally condemned", and an omission or incomplete instruction is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). The challenged instruction may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial court record. Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996).
Petitioner first contends that the trial court shifted the burden of proof in its instruction on the defense of alibi when it told the jury that if the evidence established that the defendant was at another place and could not have committed the crime, this was a perfect defense and the jury would have to find him not guilty. This, however, was only a portion of the jury instruction. When the entire alibi instruction is reviewed, the trial court instructed the jurors that the prosecutor had the duty of proving beyond a reasonable doubt that petitioner was present at the time and place of the crimes charged and that the defendant did not have the burden of proving that he was someplace else. The trial court's instructions to the jury did not impermissibly shift the burden of proof because the trial court emphasized in clear and precise language that the state bore the entire burden of proof on the issue of alibi. Fox v. Mann, 71 F.3d 66, 71-72 (2nd Cir. 1995). Moreover, the instruction did not shift the burden of proof because the trial court further instructed the jury that if they had a reasonable doubt that petitioner was present during the commission of the crime, they should acquit him. Whalen v. Johnson, 438 F. Supp. 1198, 1204 (E.D. Mich. 1977).
Petitioner lastly complains that the trial court gave incorrect instructions on the presumption of innocence in its preliminary instructions to the jury when it told the jury that the presumption of innocence only lasts until the jury goes into the jury room to deliberate. However, in its final instructions to the jury, the trial court told the jurors that the presumption of innocence starts at the beginning of the case and continues throughout their deliberations. The giving of an erroneous instruction on burden of proof is not prejudicial where the erroneous instruction was given in preliminary instructions and is corrected with the use of a correct instruction before the jury begins its deliberations. People of the Territory of Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir. 1988). Because the correct instruction was given before the jury began deliberations, petitioner is not entitled to habeas relief on this claim.