Opinion
Case No. 99-CV-73695-DT.
June 30, 2000.
MEMORANDUM OPINION AND ORDER
I. Introduction
This is a habeas corpus action under 28 U.S.C. § 2254. Rahsaon Zellner ("Petitioner") is a state prisoner currently confined at Baraga Maximum Correctional Facility in Baraga, Michigan.
In 1992, a circuit court jury in Oakland County, Michigan convicted Petitioner of three counts of armed robbery, MICH. COMP. LAWS § 750.529; MICH. STAT. ANN. § 28.797, and three counts of possession of a firearm during the commission of a felony ("felony firearm"), MICH. COMP. LAWS § 750.227b; MICH. STAT. ANN. § 28.424(2). The convictions arose from the armed robbery of a McDonald's restaurant in Farmington Hills, Michigan on February 5, 1992. Petitioner was sentenced to ten to twenty years in prison for the armed robbery convictions and to two years in prison for the felon firearm convictions.
The Michigan Court of Appeals affirmed Petitioner's convictions and sentences. See People v. Zellner, No. 155671 (Mich.Ct.App. May 26, 1994). The Michigan Supreme Court denied leave to appeal. See People v. Zellner, No. 99932 (Mich.Sup.Ct. Feb. 28, 1995).
On October 5, 1995, Petitioner raised the pending claims in a motion for relief from judgment, which the trial court denied. Petitioner appealed, but the Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Zellner, No. 202257 (Mich.Ct.App. Sept. 12, 1997). The Michigan Supreme Court denied leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508 (D)." People v. Zellner, No. 110789 (Mich.Sup.Ct. July 28, 1998).
On July 27, 1999, Petitioner filed the pending habeas corpus petition through counsel. He alleges three grounds for relief:
1. Petitioner was denied his due process right to a fair trial when the prosecutor's closing argument urged the jury to convict Petitioner on evidence not in the record.
2. Petitioner received ineffective assistance of counsel.
A. Petitioner's trial counsel was ineffective for failing to object to the prosecutor's inclusion of non-record `evidence' in closing argument.
B. Petitioner's appellate counsel was ineffective for failing to raise Petitioner's prosecutorial misconduct arguments on direct appeal.
3. Petitioner has established cause and prejudice for any procedural default.
Respondent argues in a responsive pleading filed through counsel that the habeas petition is barred by the statute of limitations. Respondent also argues that Petitioner's prosecutorial-misconduct claim is procedurally defaulted and does not warrant habeas relief.
II. Discussion
A. The Statute of Limitations
Respondent contends that Petitioner's claims are barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA" or "the Act"). See 28 U.S.C. § 2244 (d). Because Petitioner's conviction became final before the AEDPA was enacted, the statute began to run on the effective date of the Act (April 24, 1996). See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999) (noting that a one-year grace period applies for those prisoners whose state appeals concluded before the passage of the AEDPA and that the statute of limitations expires in such cases on April 24, 1997, one year from the passage of the AEDPA), cert. denied ___ U.S. ___ 120 S.Ct. 2211 (2000). On April 24, 1996, Petitioner's motion for relief from judgment was pending in the trial court. Therefore, the statute was tolled from the time that Petitioner filed his post-conviction motion in 1995 until July 28, 1998, when the Michigan Supreme Court denied leave to appeal the trial court's denial of his motion. 28 U.S.C. § 2244 (d)(2). The habeas petition was filed less than one year later on July 27, 1999.
Section 2244(d) reads in relevant part as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
. . . .
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244 (d) (1996).
Section 2244(d)(2) does not toll the limitations period from the time a state's highest court denies relief on post-conviction or other collateral review until the time in which an inmate could have petitioned the United States Supreme Court for a writ of certiorari. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1834 (2000). In contrast, a state court conviction becomes final under section 2244(d)(1)(A) at the conclusion of review in the United States Supreme Court or when the time for seeking a writ of certiorari expires. Kapral v. United States, 166 F.3d 565, 575 (3rd Cir. 1999).
Although Respondent contends that the statute ran during the intervals when no application for leave to appeal was pending in state court, this Court disagrees. See Hudson v. Jones, 35 F. Supp.2d 986, 989 (E.D. Mich. 1999); see also See Peterson v. Gammon, 200 F.3d 1202, 1203 (8th Cir. 2000). Accordingly, the habeas petition is timely, and the Court will proceed to address Petitioner's claims.
B. Procedural Default Analysis
Petitioner's first claim is that his rights to due process and a fair trial were violated by the prosecutor's closing and rebuttal arguments. Petitioner contends that the prosecutor urged the jury to convict Petitioner on evidence not in the record. The Court, however, agrees with Respondent who argues that Petitioner's claim is procedurally defaulted.
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). When analyzing a procedurally defaulted claim, a federal habeas court must consider:
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000).
1. The State Procedural Rules and Enforcement of the Rules
Two procedural rules were violated in this case. Petitioner failed to object to the prosecutor's arguments at trial. See People v. Ullah, 216 Mich. App. 669, 679 (1996) (stating that "[a]ppellate review of improper prosecutorial remarks is generally precluded absent an objection because it deprives the trial court of an opportunity to cure the error"). Petitioner also failed to present his claim of prosecutorial misconduct in the appeal of right. See M.C.R. 6.508(D)(3) (generally prohibiting relief from judgment if the movant failed to raise his claim on appeal from the conviction and sentence).
The trial court enforced these rules by holding that (1) Petitioner's prosecutorial misconduct claim had no merit because "there were no objections to the prosecutor's closing argument and the alleged misconduct did not result in a miscarriage of justice," and (2) Petitioner had not demonstrated good cause for failing to raise his claims on appeal and actual prejudice. People v. Zellner, No. 92-115950-FC (Oakland County Cir. Ct. Feb. 21, 1997) (citing M.C.R. 6.508(D)(3) and People v. Sharbnow, 174 Mich. App. 94 (1989)). The trial court's alternative analysis under a miscarriage-of-justice standard does not preclude this Court from concluding that Petitioner's claim is procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989).
Furthermore, the state appellate courts did not set aside the trial court's decision and adjudicate Petitioner's claim on the merits. Thus, the last state court to render a reasoned judgment on Petitioner's claim of prosecutorial misconduct "clearly and expressly" stated that its judgment rested on state procedural bars. Id. at 263.
2. Adequate and Independent State Grounds
Both the contemporaneous-objection rule and Rule 6.508 were firmly established and regularly followed before Petitioner's trial. See Sharbnow, 174 Mich. App. at 94 (decided in 1989), and M.C.R. 6.508 (effective October 1, 1989). Therefore, the state court's reliance on Petitioner's failure to object to the prosecutor's closing arguments and his failure to raise his claim of prosecutorial misconduct on direct appeal were adequate and independent state grounds for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); see Engle v. Isaac, 456 U.S. 107, 110 (1982) (concluding that a petitioner who fails to comply with a state rule mandating contemporaneous objections to jury instructions may not challenge the constitutionality of those instructions in a federal habeas corpus proceeding).
3. "Cause"
Petitioner must show cause for his state procedural defaults and prejudice or that a fundamental miscarriage of justice will occur if the Court declines to review his defaulted claim on the merits. Petitioner's second claim is that his trial attorney was ineffective for failing to object to the prosecutor's closing argument and his appellate attorney was ineffective for failing to raise a claim of prosecutorial-misconduct on direct appeal. In addition, Petitioner's third claim is that the ineffective assistance of his appellate attorney is "cause" for any state procedural default.
Ineffective assistance of counsel is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, to establish ineffective assistance of trial counsel, Petitioner must show that defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The same standard applies to claims of ineffective assistance of appellate counsel, except that Petitioner must show that the deficient performance prejudiced the appeal. See Carpenter v. Mohr, 163 F.3d 938, 946 (6th Cir. 1998), reversed on other grounds sub nom Edwards v. Carpenter, ___ U.S. ___, 120 S.Ct. 1587 (2000).
a. Thomas Fella's Testimony
Petitioner alleges that the prosecutor misstated Thomas Fella's testimony, made up testimony and ascribed it to Fella, and mischaracterized Fella's testimony and the other evidence. According to Petitioner, the prosecutor falsely claimed, among other things, that Fella (1) confused the names of the defendants, (2) testified that a former employee of McDonalds planned the crime in retaliation for being fired, and (3) testified that "these three people" were involved in the crime.
Fella was a prisoner who testified that, from February 5, 1992, to February 7, 1992, he was confined in the Farmington Hills Police Station with three individuals who spoke to him about an incident at McDonalds. Fella identified Petitioner and his two co-defendants as those three people. According to Fella, Petitioner's co-defendant, Louis Barclay, made the following admissions to him:
— He previously worked at McDonalds, but was fired and then planned a robbery.
— One night, he acquired some guns and drove to McDonalds in a van with a couple of men.
— He waited in the van while the three men went in McDonalds with weapons. They robbed the place and then came back out, entered the van, and left the restaurant. The robbery was retaliation for being fired recently.
— On the way back to Detroit, there was a high-speed chase. They reached their destination, but the police had arrived, and the owner of the van jumped out and said, "Bring the van back when you're done."See T II at 159-67, 171-72, 187-89.
"T" refers to the transcript of trial, which consists of five volumes (I-V) separately paginated.
Fella also testified he was transported to Oakland County Jail with Petitioner and Petitioner's co-defendant, Leroy Badger. Badger said at the time that perhaps Fella should carry the money until after the men were searched. Petitioner had responded, "We'll take our chances." Then, either Badger or Petitioner said to Fella, "These punks will get me busted." Fella knew about the money because, at the police station, he had seen Petitioner counting money and putting it in his groin area, and Badger had appeared to be stuffing money in his underwear and gym shirt. See id. at 168-71 217-18.
b. The Prosecutor's Argument
Gerald Roussell, the owner of the McDonald's restaurant that was robbed, and Misty Berry, the manager at the restaurant, testified that Petitioner was an employee at McDonalds from January of 1991 to late December of that year or January of 1992. See id. at 30-37 and 88-90. The prosecutor and Louis Barclay's attorney subsequently stipulated that Barclay was never employed at McDonalds. See T V at 131-32. Thus, the prosecutor did not engage in misconduct when she argued that Fella was mistaken when he testified that Barclay was the ex-employee and the person who planned the robbery, supplied the guns, and drove the vehicle.
The prosecutor's other assertions could be viewed as accurate, as inconsequential argument, or as reasonable inferences drawn from the evidence. Although prosecutors, may not misstate the facts, Berger v. United States, 295 U.S. 78, 84 (1935), they may argue reasonable inferences from the record, United States v. Collins, 78 F.3d 1021, 1040 (1996).
Moreover, the prosecutor clearly stated that it was her theory (as opposed to her personal belief) that all three defendants participated in the robbery. She also stated that the jury should not consider the arguments of counsel as evidence. See TV at 134-35. The trial court instructed the jurors that it was their duty to decide the facts, that they should decide the case based on the admissible evidence, and that the attorneys arguments were not evidence. See id. at 232 235.
In summary, Petitioner has not demonstrated that his trial attorney was ineffective for not objecting to the prosecutor's argument or that his appellate attorney was ineffective for not raising a claim of prosecutorial misconduct on appeal. In fact, the trial court found no merit in Petitioner's ineffective-assistance-of-counsel claims. The trial court's decision was a reasonable application of Strickland. 28 U.S.C. § 2254 (d)(1). The Court therefore concludes for all the reasons given above that Petitioner has not shown cause for his state procedural defaults.
Furthermore, Petitioner had no constitutional right to compel his appellate attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the sound professional judgment of counsel. . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
4. Prejudice
Even if the prosecutor's closing argument is read as stating facts not in evidence, the evidence against Petitioner was substantial. A description of the escape vehicle (a gold-colored mini van) was broadcast to law enforcement officers. After a high-speed chase in which officers pursued the van, it stopped in a housing complex. Michigan State Troopers Brian Cribbs and Scott Rios testified that they saw Petitioner and three others "bail out" of the van. They followed Petitioner on foot. Although they lost sight of him for about two minutes when he ran around a building, they subsequently saw him lying on the ground and arrested him. Petitioner responded to the arrest by saying, "I have nothing to do with this." The state troopers had not informed Petitioner why they were arresting him. Nor had they said anything about the crime at that point. T IV at 195-204 (Trooper Cribbs' testimony) and 236-40 (Trooper Rios' testimony).
When the police later interrogated Petitioner, he offered an explanation for his presence in the neighborhood prior to his arrest and then changed his story, saying that his initial explanation had been a lie. Then he said that he had used a Lorraine Cab to get to the area. However, a dispatcher for Lorraine Cab testified that she did not send a cab to the area where Petitioner was arrested on February 5, 1992. Petitioner denied ever being in the McDonalds that was robbed until an officer confronted him with the information that he was a former employee of the restaurant. See id. at 288-95 and T V at 12-15 48-50.
The evidence against Petitioner was so substantial that the result of the trial and appeal would have not been different had defense counsel objected at trial or challenged the prosecutor's conduct on direct appeal. Thus, Petitioner was not prejudiced by the prosecutor's closing argument.
5. Miscarriage of Justice
The only remaining question is whether this Court's failure to consider Petitioner's prosecutorial-misconduct claim on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Carrier, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. Petitioner has not asserted that he is innocent, and he has not supported his allegations with new reliable evidence that was not presented at trial. Accordingly, a miscarriage of justice will not result from the Court's failure to address the prosecutorial-misconduct claim on the merits.
III. Conclusion
For the reasons given above, Petitioner's claim about the prosecutor is barred from review on the merits by Petitioner's state procedural default for which he has not shown cause and prejudice or a miscarriage of justice. Petitioner's remaining claims concerning the assistance of counsel have no merit. Accordingly, the Court DENIES the habeas corpus petition.