Opinion
CASE NO. 02-CV-73141-DT
October 30, 2003
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
This matter is pending before the Court on a pro se habeas corpus petition filed under 28 U.S.C. § 2254. The habeas petition attacks two state court convictions for delivery of narcotics and conspiracy to deliver narcotics. The Court has concluded for reasons given below that the habeas petition must be denied.
I. Background
On October 5, 1995, a circuit court jury in Oakland County, Michigan found Clarence E. Smith, Jr. (Petitioner) guilty of delivering 50 to 224 grams of cocaine, MICH. COMP. LAWS § 333. 7401(2)(a)(iii), and conspiracy to deliver 50 to 224 grams of cocaine, MICH. COMP. LAWS § 750.157a; MICH. COMP. LAWS § 333. 7401(2)(a)(iii). The convictions arose from the sale of 74 grams of cocaine to an undercover police officer on May 22, 1995. The trial court sentenced Petitioner to consecutive terms often to twenty years in prison for each conviction.
On direct appeal from his convictions, Petitioner argued that (1) the admission in evidence of the alleged co-conspirator's hearsay statement constituted reversible error under state law, (2) the imposition of consecutive sentences was reversible error, (3) the imposition of a ten-year minimum sentence was reversible error, and (4) the judgment of sentence was incorrect. The Michigan Court of Appeals affirmed Petitioner's convictions, but remanded his case so that the judgment of sentence could be corrected to eliminate any reference to Petitioner having been adjudicated a third offender. See People v. Smith, No. 190616 (Mich.Ct.App. June 4, 1997). On May 27, 1998, the Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Smith, 457 Mich. 875; 586 N.W.2d 919 (1998).
Petitioner raised his habeas claims in a motion for relief from judgment, which the trial court denied. The trial court ruled that Petitioner failed to show "cause and prejudice," as required by Michigan Court Rule 6.508(D)(3), for not raising his claims on direct appeal. The Michigan Court of Appeals denied leave to appeal the trial court's decision on the ground that Petitioner "failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Smith, No. 233336 (Mich.Ct.App. Sept. 6, 2001). On May 24, 2002, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Smith, 466 Mich. 865; 644 N.W.2d 764 (2002).
Petitioner signed and dated his habeas corpus petition on July 24, 2002. His arguments read:
I. Petitioner's right to due process was violated where the jury instructions on the element of agreement shifted the burden of proof on that element to him.
II. Petitioner's due process right to have the jury instructed on all essential elements was violated, where the jury instructions did not tell the jury that to find him guilty of conspiracy, it was necessary that the two defendants conspire to deliver cocaine to a third person as opposed to one another.
III. The trial court's failure to instruct [the] jury on the limited purpose for which they could consider evidence of other criminal acts deprived Petitioner of his due process right to a properly instructed jury.
IV. Petitioner was denied his state and federal constitutional rights to confrontation and a fair trial, where a police officer was allowed to give unfairly prejudicial hearsay testimony of an alleged co-conspirator.
V. The evidence is insufficient to support the conviction of conspiracy to deliver between 50 and 225 grams of cocaine.
VI. Petitioner's due process right to a properly instructed jury was violated where the trial court gave [an] inadequate charge which relieved jurors of their duty to find that alleged co-conspirator Tate had knowledge that a delivery of 50 to 225 grams of cocaine was to take place.
VII. Petitioner was denied effective assistance of counsel at trial and on direct appeal, thus violating his Sixth Amendment rights.
II. Discussion
A. Hearsay Testimony (Claim IV)
Respondent argues in a responsive pleading that Petitioner's hearsay claim concerning the co-conspirator's statements alleges only a violation of a state rule of evidence. Petitioner raised his hearsay claim strictly as a matter of state law on direct review of his convictions. However, in his habeas petition, he alleges that the hearsay violated his constitutional rights to a fair trial and to confront his accusers. To the extent that Petitioner is still alleging a violation of state law, the Court agrees with Respondent that the claim is not cognizable on habeas review. See 28 U.S.C. § 2241(c)(3) and 2254(a) (authorizing federal habeas courts to grant the writ of habeas corpus only if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States"); Pulley v. Harris, 465 U.S. 37, 41 (1984) (stating that "[a] federal court may not issue the writ on the basis of a perceived error of state law"). The federal aspect of claim IV is procedurally defaulted, along with Petitioner's other claims, as explained more fully below.
Petitioner exhausted state remedies for the federal claim by raising it as a federal constitutional issue on state collateral review.
B. Procedural Default
Petitioner raised his federal claims for the first time in his motion for relief from judgment. Respondent alleges that the claims are procedurally defaulted because the state appellate courts denied relief under Michigan Court Rule 6.508(D).
A procedural default in the habeas context is "a critical failure to comply with state procedural law. . . . Trest v. Cain, 522 U.S. 87, 89 (1997). The doctrine of procedural default provides that,
[i]n 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). Stated differently, "[a] federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment `rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the [state] court's decision.'"
Patterson v. Haskins, 316 F.3d 596, 604 (6th Cir. 2003) (quoting Harris v. Reed, 489 U.S. 255, 260 (1989)).
A procedural rule is "adequate" if it is "firmly established and regularly followed" by the time it is applied. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)), cert. denied, ___ Ct. ___, No. 03-5235, 2003 WL 21693492 (U.S. Oct. 6, 2003). A procedural rule is an independent basis for a state court's disposition if "the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 261-62 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985) (quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983)).
In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit set forth a four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review. Courts must determine whether: (1) there is a state procedural rule that is applicable to the petitioner's claim and the petitioner failed to comply with that rule; (2) the state courts actually enforced the rule; (3) the procedural rule is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim; and (4) the petitioner has shown cause for not complying with the procedural rule and actual prejudice from the alleged constitutional error. Id. at 138.
1. Violation of a Procedural Rule
The procedural rule in question here is Michigan Court Rule 6.508(D)(3), which prohibits state courts from granting relief from judgment if the defendant
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence . . . unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal . . ., and
(b) actual prejudice from the alleged irregularities that support the claim for relief.
Mich. Ct. R. 6.508(D)(3) (effective October 1, 1989).
Petitioner violated the spirit of this rule by not raising his habeas claims on direct appeal. He raised the claims for the first time in his motion for relief from judgment. The trial court, the Michigan Court of Appeals, and the Michigan Supreme Court relied on Michigan Court Rule 6.508(D) to deny relief. The brief appellate court orders stating that Petitioner was not entitled to relief under Rule 6.508(D) were sufficient explanations for this Court to conclude that the orders were based on a procedural default. Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002).
As previously explained, Petitioner raised his fourth claim on direct appeal, but only as a matter of state law.
Rule 6.508(D) was an adequate and independent basis for the state courts' rulings because it became effective long before Petitioner's trial and subsequent appeal and because all three state courts actually relied on the rule. Therefore, in order for this Court to review Petitioner's claims, he must show cause for not raising his claims on direct appeal and actual prejudice or a miscarriage of justice.
2. Ineffective Assistance as "Cause"
Petitioner has not alleged "cause" for his failure to raise his fifth claim (insufficient evidence) on direct review. Because he has failed to advance any argument in support of a finding of "cause and prejudice" for that claim, the argument must be deemed abandoned. Roberts v. Carter, 337 F.3d 609, 613 (6th Cir. 2003) (citing United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)).
Petitioner alleges in claim VII that his appellate attorney was "cause" for the failure to raise his claims about the jury instructions and the hearsay testimony on direct review. Constitutionally ineffective assistance of counsel is "cause" for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, "[i]f [Petitioner] can show that he received ineffective assistance of appellate counsel that rose to the level of a violation of his Sixth Amendment rights, it would excuse his procedural default." Martin v. Mitchell, 280 F.3d 594, 605 (6th Cir.), cert. denied, 537 U.S. 1004 (2002), and cert. denied, ___ U.S. ___, 123 S.Ct. 2601 (2003).
To prevail on a claim of ineffective assistance of appellate counsel, the petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984); Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, 529 U.S. 446 (2000). The deficient-performance prong of this test "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The prejudice prong of the test requires showing "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.
[A]ppellate counsel need not raise every nonfrivolous argument on direct appeal. Jones v. Barnes, 463 U.S. 745, 751-52 (1983). To be sure, "`winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751-52). Appellate counsel, however, is required to exercise reasonable professional judgment. Jones, 463 U.S. at 753. Nevertheless, "only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). The Court will briefly consider claims I through IV and VI to determine whether those claims are clearly stronger than the ones presented on appeal.
a. Shifting the Burden of Proof
Petitioner's first claim alleges that the trial court deprived him of due process by directing the jury to infer an agreement between Petitioner and his alleged co-conspirator if there was no other reasonable explanation for their actions and comments. Petitioner contends that the jury instruction shifted the burden of proof to him because the trial court failed to instruct the jurors that they were not required to make such an inference and that other inferences were possible.
An instruction that tells a jury to presume an element of a crime without evidence is unconstitutional because the Fourteenth Amendment prohibits states from shifting the burden of disproving an element of the crime to the defendant. Caldwell v. Bell, 288 F.3d 838, 841 (6th Cir. 2002) (quoting Sandstrom v. Montana, 442 U.S. 510, 527 (1979) (Rehnquist, J., concurring)). The trial judge in this case said that the jury may infer an agreement, not that it must infer such an agreement. The court's exact words were:
To find the Defendant guilty of conspiracy, you must be satisfied beyond a reasonable doubt that there was an agreement to deliver 50 to 224 grams of cocaine.
However, you may infer that such was — that there was such an agreement from the circumstances such as how the members of the alleged conspiracy acted, but only if there's no other reasonable explanation for those circumstances.
(Tr. Oct. 5, 1995, at 49). Because the jury instruction did not contain a mandatory presumption, it did not unconstitutionally shift the burden of proof to Petitioner.
b. Conspiring to Deliver Cocaine to a Third Person
The second habeas claim alleges that the trial court should have instructed the jury that, to find Petitioner guilty of conspiracy, it was necessary to conclude that the defendants conspired to deliver cocaine to a third person as opposed to one another. Petitioner contends that the jury instruction as given permitted the jury to convict him of conspiracy based on an agreement to deliver cocaine to himself or his alleged co-conspirator (Tracy Tate).The disputed instruction reads:
To prove the Defendant's guilt, the Prosecutor must prove each of the following elements beyond a reasonable doubt.
First, that the Defendant and someone else knowingly agreed to deliver 50 to 224 grams of cocaine. Second, that the Defendant specifically intended to commit or help commit that crime; and third, that this agreement took place on or about May 22, 1995.Id. at 48-49 (emphasis added).
In Michigan, a defendant may not be convicted of conspiracy to deliver controlled substances to his co-conspirator. People v. Clifton, 70 Mich. App. 65, 67-69; 245 N.W.2d 175, 176-77 (1976). However, the prosecutor's theory of the case was that Petitioner conspired with Tracy Tate to deliver cocaine to the undercover officer. (Tr. Oct. 5, 1995, at 14-22). It was undisputed that the cocaine was intended for a third party.
c. Use of Other Acts Evidence
The third habeas claim alleges that the trial court should have instructed the jury on the limited purpose for which they could consider the undercover officer's testimony about a previous incident in which Petitioner sold him cocaine. Petitioner apparently did not request such an instruction, and he did not object to the instructions as given. Id. at 53. Moreover, state courts in Michigan are not required to give a limiting jury instruction sua sponte. People v. Allen, 429 Mich. 558, 612; 420 N.W.2d 499, 525 (1988).
d. Hearsay Testimony
The fourth habeas claim alleges that Petitioner's constitutional rights to a fair trial and to confront witnesses were violated when the undercover officer was permitted to repeat what the alleged co-conspirator said to him. Petitioner contends that the co-conspirator's statements were not admissible because, up to that point, there was no independent evidence of a conspiracy. Petitioner asserts that admission of the co-conspirator's statements violated his right of confrontation because the co-conspirator was tried separately and he could not be questioned during Petitioner's trial. The trial court determined that the co-conspirator's statements were admissible, and the Michigan Court of Appeals found no abuse of discretion in admitting the evidence under an exception to the hearsay rule.
The evidence at trial established that the undercover officer arranged to purchase three ounces of cocaine from Petitioner. The officer expected Petitioner to deliver the cocaine. However, when the officer went to the agreed-upon location, a stranger, whom he later learned was Tracy Tate, approached him and asked who he was there for. The officer answered, "Clarence." Tate then said, "Yeah, it's over at the pay phone. Go get it before somebody else does." The officer went to the pay phone where he found a powdery white substance in a brown bag. He told Tate that he did not want to deal with him because he did not know him and because the package looked lighter than it was supposed to be. Tate took the bag and left. He returned with Petitioner, who handed 74 grams of cocaine to the officer in return for $3,300. (Tr. Oct. 4, 1995, at 31-35, 44-49).
An out-of-court statement does not violate the Confrontation Clause if "the evidence falls within a firmly rooted hearsay exception," Ohio v. Roberts, 448 U.S. 56, 66 (1980), and the Supreme Court has held that the exception in the Federal Rules of Evidence for co-conspirators' statements is a firmly rooted exception to the hearsay rule. See Bourjaily v. United States, 483 U.S. 171, 182-84 (1987). Michigan Rule of Evidence 801(d)(2)(E) is similar to Federal Rule of Evidence 801(d)(2)(E). Both rules provide that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay. Although the Michigan rule also requires that the statement be "on independent proof of the conspiracy," the Supreme Court declined to decide in Bourjaily whether courts may rely solely on the hearsay statements to determine that a conspiracy had been established. Instead, the Supreme Court found it "sufficient . . . to hold that a court, in making a preliminary factual determination under [Federal] Rule [of Evidence] 801(d)(2)(E), may examine the hearsay statements sought to be admitted." Bourjaily, 483 U.S. at 181. Thus, there was no basis for raising Petitioner's hearsay claim under the Confrontation Clause on direct appeal.
e. Knowledge of the Amount of Cocaine
The sixth habeas claim alleges that the jury instruction on conspiracy was inadequate because it did not inform the jurors that, to find Petitioner guilty of conspiracy, the co-conspirator had to know that a delivery of 50 to 224 grams of cocaine would occur. The Michigan Supreme Court has held that knowledge of the amount of drugs delivered is an element of conspiracy to deliver the drugs. People v. Mass, 464 Mich. 615, 618; 628 N.W. 540, 543 (2001). Petitioner's claim has no merit because the trial court instructed the jury that "[t]o find the Defendant guilty of conspiracy, you must be satisfied beyond a reasonable doubt that there was an agreement to deliver 50 to 224 grams of cocaine." (Tr. Oct. 5, 1995, at 49). Moreover, the evidence established that the alleged co-conspirator must have known the amount of cocaine to be delivered because the undercover officer told him that the package of cocaine initially delivered to him appeared to be lighter than the three ounces he had agreed to purchase. (Tr. Oct. 4, 1995, at 45).
f. Summary
The Court concludes for all the reasons given above that Petitioner's claims about the jury instructions and the admission of hearsay testimony are not clearly stronger than the issues asserted on direct appeal. Therefore, appellate counsel was not ineffective for failing to raise Petitioner's claims on direct review, and Petitioner has not established "cause" to excuse his procedural default. The Court need not determine if Petitioner was prejudiced by the alleged violations of federal law, because he has not established "cause." Smith, 477 U.S. at 533.
he same reasons, trial counsel was not ineffective for failing to object to the jury instructions.
3. Miscarriage of Justice
The Sixth Circuit recently explained that,
even without a demonstration of cause and prejudice, a federal habeas petitioner may obtain review of defaulted claims by showing the failure to conduct such review will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. See also Murray v. Carrier, 477 U.S. 478, 496 (1986) ("[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").
. . . .
Under Schlup v. Delo, 513 U.S. 298, 324 (1995), a petitioner claiming actual innocence must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — not presented at trial." Further, "[t]o establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327. Actual innocence, moreover, "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24 (1998). Thus, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329.Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 426-27 (6th Cir. 2003).
Petitioner has not produced any new and reliable evidence that would cause a reasonable juror to acquit him. Therefore, a miscarriage of justice will not occur as a result of this Court's failure to adjudicate the substantive merits of Petitioner's procedurally defaulted claims.
III. Conclusion
Petitioner's federal constitutional claims are procedurally defaulted, and, to the extent that claim IV raises a state law evidentiary claim, the claim is not cognizable here. Accordingly, the application for a writ of habeas corpus is DENIED.