Opinion
Case No. 1:00-CV-939
February 20, 2004
FINAL ORDER
In accordance with the Opinion filed this day,
IT IS HEREBY ORDERED that the Petitioner's Objections (Dkt. No. 28) are DENIED, the Report and Recommendation (Dkt. No. 27) is ADOPTED, and the Petition (Dkt. No. 1) is DISMISSED WITH PREJUDICE and on its merits pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts.
IT IS FURTHER ORDERED that the Court denies the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because the Petitioner has made no substantial showing of the denial of a constitutional right on the issues raised in the Petition. See Slack v. McDaniel, 529 U.S. 473, 484(2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
OPINION
Petitioner Symonds has objected to Magistrate Judge Ellen S. Carmody's Report and Recommendation of December 12, 2003 ("Report"), which recommended denial of his Petition for Writ of Habeas Corpus. For the following reasons, the Court will deny his objections.I. Facts
On March 3, 1995, Petitioner was convicted by a jury of first-degree murder, first-degree criminal sexual conduct, kidnapping, and felony murder. On May 4, 1995, the Calhoun County Circuit Court set aside and vacated all convictions except the first-degree murder charge, due to issues of double jeopardy. The Court determined that Petitioner, who was sixteen years old at the time of the offense, should be sentenced as an adult and sentenced him to life without parole.
Petitioner appealed to the Michigan Court of Appeals, raising six separate issues. That court rejected Petitioner's appeal and affirmed his convictions and sentence. The court also denied Petitioner's later motion for rehearing. Petitioner than filed for leave to appeal to the Michigan Supreme Court, which denied him leave on September 28, 1998.
On October 20, 1999, Petitioner filed a motion for relief from judgment in Calhoun County Circuit Court, asserting that he had been denied effective assistance of counsel and requesting an evidentiary hearing. The court denied his motion on November 5, 1999. Petitioner then sought leave to appeal to the Michigan Court of Appeals, which denied him leave on February 22, 2000. That court also denied Petitioner's request for rehearing. Petitioner then applied for leave to appeal to the Michigan Supreme Court, which denied his request on October 30, 2000.
On December 27, 2000, Petitioner filed a habeas application in this Court. His application was referred to Magistrate Judge Ellen S. Carmody, who filed her Report and Recommendation recommending denial of the application on December 12, 2003. Petitioner then filed his objections to the Report on December 22, 2003.
II. Analysis
Petitioner has stated numerous objections to the Report, which the Court now reviews de novo. See 28 U.S.C. § 636; Fed.R.Civ.P. 72(b).
A. Due Process and Equal Protection
Petitioner's first objection is that the Magistrate erred when she found Petitioner's rights to due process and equal protection were not violated when he was sentenced as an adult rather than as a juvenile. The court that sentenced him relied in part on the findings of a psychologist who examined Petitioner. In particular, Petitioner argues that these rights were violated because: 1) there were no standards governing the psychologist's findings; 2) he did not see the psychologist's report until the day of his sentencing; and 3) he could have found an expert whose findings would have contradicted the psychologist's findings.
Under the Fourteenth Amendment, state actions that implicate a fundamental right or discriminate on the basis of a suspect class must be narrowly tailored to a fundamental state interest; all other state actions need only be rationally related to a legitimate state interest. Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). Although Petitioner does not claim that his sentencing implicated a fundamental right, he does argue that his sentencing discriminated against him as a member of a suspect class, namely juveniles. However, it has been clearly established that juveniles are not a suspect class entitled to heightened scrutiny. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985). Therefore, the standards by which Petitioner was sentenced do not violate equal protection if they are rationally related to a legitimate state interest.
Petitioner argues that the psychologist's findings are not rationally related to a legitimate state interest because they were not held to a uniform standard. However, the state has a legitimate interest in allowing psychologists a certain amount of freedom in determining whether a juvenile offender should be sentenced as a juvenile or as an adult. Allowing a psychologist to consider all characteristics of a particular offender rather than a strict set of uniform standards is rationally related to this legitimate state interest. As a result, the Court denies Petitioner's objection that his sentencing violated the equal protection clause of the Fourteenth Amendment.
Petitioner also argues that his sentencing violated his rights to due process because he did not see the psychologist's report until the day of his sentencing and because he was not given the opportunity to identify contrary experts. However, "[d]ue process requires only that the proceedings be fundamentally fair and that a sentence be based on reliable information." United States v. Gatewood, 230 F.3d 186, 191 (6th Cir. 2000). Petitioner does not claim that any of the findings in the psychologist's report are incorrect, so the short amount of time he was given to see the report did not prejudice him in any way. Additionally, although Petitioner argues that he may have been able to identify contrary experts, he does not argue that the information presented by the psychologist was not reliable. Petitioner claims that the progress he has made in an adult facility supports his argument that he should have been sentenced as a juvenile. However, Petitioner's progress in an adult facility has no bearing on the issue of whether he should have been sentenced as a juvenile. Therefore, the Court finds that the sentencing complied with the requirements of due process and denies Petitioner's objection that his rights to due process were violated.
B. Right to Confrontation
Petitioner's second objection is that the Magistrate erred when she found that Petitioner's Fifth and Sixth Amendment rights were not violated when he was not allowed to impeach a key prosecution witness. The Magistrate agreed with the state court that any error that resulted when Petitioner was not allowed to impeach this witness was harmless because of the "overwhelming" amount of evidence admitted at the trial.
A petitioner must show actual prejudice in order to receive habeas relief. McGhee v. Yukins, 229 F.3d 506, 513 (6th Cir. 2000). See also, Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999) (applying the harmless error standard to habeas cases brought before federal court). The exclusion of evidence is considered harmless error unless it "had substantial and injurious effect or influence in determining the jury's verdict." Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir. 1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Petitioner argues that there was little additional evidence, aside from his confession, that connected him to the crime. However, as discussed below, the Court finds that the lower courts did not err in allowing Petitioner's confession to be admitted at trial. Because the remaining evidence supported a guilty verdict, Petitioner cannot show that impeachment of the witness at issue would have resulted in a different outcome. The Court therefore denies his objection.
C. Confession
Petitioner also objects that his confession was illegally obtained because he should have been brought before the probate court under Mich. Comp. Laws § 764.27. The Magistrate correctly noted that the court cannot grant habeas relief based on a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Because Petitioner's argument is based solely on Michigan law, the Court denies his objection that he is entitled to habeas relief on this ground.
D. Ineffective Assistance of Counsel
Petitioner's fourth objection is that the Magistrate erred when she found that Petitioner received effective assistance of counsel from both his trial and appellate counsel. In his habeas petition, Petitioner made the following allegations of ineffective assistance: 1) counsel failed to argue that his confession should have been suppressed; 2) counsel failed to raise equal protection or due process violations; 3) counsel failed to notice a gap in the videotape of Petitioner's confession; and 4) counsel failed to request an instruction on accident.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show two things: first, that his counsel made errors so serious that he "was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and second, that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of the test, attorney performance, is judged by "reasonableness under prevailing professional norms." Id. at 688. In evaluating this prong, the court must be "highly deferential" to counsel's performance and avoid being guided by the benefits of hindsight. Id. at 689. In order to meet the second prong, "[t]he 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. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Id.
In his objections, Petitioner relies heavily on the distinction between strategy and ineffective lawyering. However, the main problem with his claim of ineffective assistance is that he cannot show that more effective lawyering would have led to a different outcome.
Petitioner's first claim of ineffective assistance, that his attorney failed to mention Mich. Comp. Laws § 764.27, fails because Petitioner cannot show either that this omission was unreasonable or that its inclusion would have led to a different outcome. As the Magistrate noted, both the trial and appellate courts determined that § 764.27 did not apply to Petitioner's confession. Because Petitioner's argument was clearly considered and rejected by the lower courts, Petitioner cannot argue that his counsel's failure to invoke the statute led to actual prejudice.
Petitioner's second claim, that his counsel failed to make equal protection and due process arguments, fails because the Court has found that Petitioner does not have a viable equal protection or due process claim. Similarly, Petitioner's third argument, that his attorney missed gaps in the videotape of his confession, fails because he does not argue that the missing portions of the videotape would have presented any exculpatory evidence. Contrary to Petitioner's claim, he has presented no evidence that this gap was intentional, material, or prejudicial. As a result, he has not shown that evidence regarding these gaps would have led to a different outcome.
Petitioner's final claim of ineffective assistance is that his trial counsel was ineffective because he did not request an instruction on accident be read to the jury. However, as the Magistrate correctly noted, the jury's finding of guilty depends on a finding that Petitioner acted deliberately and without accident. In other words, the jury could not have found Petitioner guilty unless it also found that he had acted without accident. As a result, even if Petitioner's counsel had asked for and received an instruction on accident, the outcome of his case would not have changed.
E. Evidentiary Hearing
Petitioner's final objection is that the Magistrate erred when she found that a hearing was unnecessary in this case. In support of his request for an evidentiary hearing, Petitioner submitted an affidavit from his attorney which asserted that the attorney could have done more. A petitioner seeking habeas relief is generally entitled to an evidentiary hearing if he "alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing." Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001) (quoting Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1999).
Petitioner argues that the affidavit submitted by his attorney shows a genuine dispute in relevant facts. This affidavit states that the attorney: 1) did not realize there was a gap in the tapes of Petitioner's interview with the police; 2) felt he should have done more investigation before the sentencing, including an independent evaluation of Petitioner's background and emotional and psychological history; 3) felt he should have called character witnesses; and 4) believes "a stronger presentation would have enhanced Mr. Symonds' chances of being sentenced as a juvenile at sentencing or, alternatively, would have made any appeal much stronger because the record would have been more complete." These vague assertions that the attorney could have done a better job do not come close to reaching the first prong of the Strickland test because they do not demonstrate that the attorney acted unreasonably. However, even if Petitioner did show that his attorney's performance was ineffective under the first prong of the Strickland test, he has still failed to meet the second prong because, as discussed above, he has not shown that correction of the attorney's alleged errors would have led to a different outcome. The attorney merely speculates that a stronger presentation would have enhanced Petitioner's changes of being sentenced as a juvenile or made his appeal stronger, and such claims are insufficient to justify a hearing. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) ("bald assertions and conclusory allegations do not provide sufficient ground . . . to require an evidentiary hearing").
Petitioner's reliance on Barnes v. Elo, 339 F.3d 496 (6th Cir. 2003) is misplaced. In that case, the Sixth Circuit found that a hearing is necessary in the "unusual circumstances" present when the lower court fails to consider a properly filed affidavit. No such circumstances are present here.
Because Petitioner has not alleged sufficient grounds for his release, the Magistrate correctly denied his request for a hearing.
III. Conclusion
The Court finds that Petitioner's objections to the Magistrate's findings are without merit. As a result, the Court will adopt the Magistrate's Report and Recommendation and deny Petitioner's Petition for Writ of Habeas Corpus. A Final Order consistent with this Opinion will be entered.