Opinion
Civil No. 99-CV-72550-DT
October 31, 2000
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Ernest Perez Diaz ("petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, 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 and sentence on one count of delivery of less than fifty (50) grams of cocaine, M.C.L.A. 333.7401 (2)(a)(iv); M.S.A. 14.15 (7401)(2)(a)(iv). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner's conviction arose out of an incident which occurred in Detroit, Michigan on July 17, 1995. On that date, Officer Mark Hull of the Detroit Police was conducting surveillance at the corner of Vernor and Lansing streets in Detroit for suspected drug activity. While conducting surveillance, Hull observed petitioner standing outside the V L Bar with co-defendant Miguel Martinez Aragowe. A man named Raymond Sanders approached petitioner and began talking to him. Aragowe was standing next to petitioner at the time. Sanders handed petitioner what appeared to be U.S. Currency. Petitioner put the money into his pocket and turned to Aragowe. Aragowe reached into his pocket, took out a plastic bag, and handed what Hull suspected to be a zip lock packet containing a rock of crack cocaine to petitioner. Petitioner handed this zip lock packet to Sanders, before walking into the bar with Aragowe.
Trial Transcript, Vol. I, hereinafter "T.I", pp. 26-30.
Id. at pp. 30-36.
After observing the suspected narcotics transaction, Hull radioed other officers to stop Sanders. Sanders was detained by other police officers at the corner next to the bar and police recovered a rock of cocaine off of him. The other officers, Babb and Clyburn, then returned to the corner where Hull had been conducting surveillance. The three officers walked into the bar to investigate petitioner and Aragowe. When the three officers walked into the bar, petitioner and Aragowe were standing in the front doorway of the bar, but were not watching television or drinking. Hull searched Aragowe and recovered a plastic bag containing thirteen rocks of cocaine. Each of the rocks was packaged in a zip lock coin envelope. Hull didn't search petitioner and could not recall if anything was recovered from him.
Id. at pp. 36-37.
Id. at pp. 37-43.
Officer Jeffrey Clyburn testified that he was a member of the police department's gang squad and was working with Officers Babb and Hull on the day in question. Clyburn was in radio contact with the other officers during the surveillance. Clyburn received information from Hull concerning a description of the individuals involved in a suspected drug transaction. Based upon the radio information, Clyburn detained Sanders and retrieved one rock of cocaine from him. Clyburn and the other officers then went into the V L Bar, at which time petitioner was detained. Clyburn took thirty four ($34.00) dollars off of petitioner. Clyburn admitted that he did not see the alleged transaction between petitioner and Sanders and did not find any other items on petitioner.
Id. at pp. 52-57.
Id. at pp. 60-61, 66-67.
Petitioner testified that he was working on July 17, 1995. He stopped at the bar after work, going inside and sitting down. Petitioner was inside the bar for ten to twenty minutes when police walked in the door and told the bar patrons not to move or they would be shot. Petitioner saw a white police officer search Aragowe at the beginning of the door of the bar and retrieve cocaine from his pocket. Petitioner admitted that he knew Aragowe but stated that he knew nothing about what he does. Aragowe was in the corner of the bar when he was searched by police. According to petitioner, the police stopped and detained Aragowe first. Afterwards, Officer Clyburn came over to petitioner and said "long time no see". Clyburn told petitioner that he should know him [Clyburn] from the neighborhood and accused him of dealing drugs. Petitioner admitted to Clyburn that other persons in his neighborhood sold drugs, but not him. Petitioner denied selling drugs.
Trial Transcript, Volume II, hereinafter "T.II", pp. 13-17.
Petitioner acknowledged talking to Officer Clyburn at the police station and acknowledged that Clyburn got a Spanish speaking interpreter to assist him. Petitioner stated that he tried to talk to Clyburn but the officer didn't want to talk with him. He later clarified this by stating that he tried to tell the story to Clyburn that he told in court but that Clyburn didn't want to talk to him. Although petitioner first admitted that he refused to make a statement to the police, he later denied writing down that he refused to make a statement.
Id. at pp. 17-19, 25-26.
On redirect examination, petitioner testified that he had a prior run in with Officer Clyburn, where the officer had hit him in the head with a flashlight and had arrested him. He admitted, however, that Clyburn was not the officer who observed the alleged narcotics transaction and further admitted that Officer Hull, the officer who witnessed the drug transaction, had no grudge against petitioner.
Id. at pp. 23-25.
After the defense rested, Officer Clyburn was recalled by the prosecution and testified that petitioner did not want to make a statement to him. Clyburn indicated that petitioner never told him that he was rousted from a bar or that he had prior contacts with the officer. Clyburn was unable to recall any contacts with petitioner and could not recall hitting him over the head with a flashlight.
Id. at pp. 33-35.
Petitioner's conviction was affirmed on appeal. People v. Diaz, 195228 (Mich.Ct.App. October 17, 1997); lv. den. 458 Mich. 874; 586 N.W.2d 404 (1998). Additional facts will be discussed below. Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The trial court improperly denied the defense the right to call a relevant witness.
II. The trial court improperly hindered and prejudiced the defense, and kept out admissible evidence, with repeated interference and interruptions.
III. The trial court allowed hearsay and leading questions on behalf of the prosecution.
IV. The prosecutor improperly admitted evidence of petitioner's silence.
V. Petitioner was prejudiced by highly misleading, unwarranted aspersions cast concerning his name.
VI. The prosecutor improperly argued petitioner's silence to police, and that petitioner tricked police about his name.
VII. The trial court improperly scored the sentencing guidelines.
VIII. The trial court improperly based the sentence on petitioner's status as a foreigner.
IX. The sentencing of 10-20 years in this case involving less than 2 grams of cocaine was not proportional to the crime, and therefore was an abuse of discretion.
X. Petitioner had ineffective assistance of counsel.
II. STANDARD OF REVIEW
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).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522.
III. DISCUSSION
A. Claim # 1. The trial court's exclusion of a potential defense witness.
Petitioner first claims that the trial court erred in refusing to allow petitioner to call as a witness his co-defendant, Miguel Martinez Aragowe, who had already pleaded guilty to his involvement in this offense prior to petitioner's trial. The trial court excluded Aragowe's testimony because defense counsel violated a reciprocal discovery order, which required both the prosecution and defense to give each side a list of witnesses it intended to call prior to trial. The prosecutor argued that he would be prejudiced if Aragowe was permitted to testify, because there had been no opportunity to review either Aragowe's guilty plea transcript or his presentence report to prepare for cross examination. Defense counsel made no offer of proof as to the nature of Aragowe's proposed testimony.
The Sixth Amendment compulsory process clause does not create an absolute bar to the preclusion of testimony of a defense witness as a sanction for violating a discovery rule. Taylor v. Illinois, 484 U.S. 400, 410 (1988). The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. Id., see also Montana v. Egelhoff, 518 U.S. 37, 42 (1996). There is a significant difference between the compulsory process clause and other constitutional rights protected by the Sixth Amendment. While other Sixth Amendment rights shield a defendant from potential prosecutorial abuses, the right to compel the presence or testimony of a witness provides the defendant with a "sword" that can be used to rebut the prosecutor's case. The decision whether to employ it in a particular case lies solely with a defendant and "its availability is dependant entirely on the defendant's initiative." Taylor v. Illinois, 484 U.S. at 410.
The U.S. Supreme Court in Taylor indicated that the principle that lies behind a defendant's right to present exculpatory evidence is also the source of the essential limits on that right:
The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses' testimony.Taylor, 484 U.S. at 411.
The Supreme Court went on to rule that a state's interest in the orderly conduct of a criminal trial was sufficient to justify imposing and enforcing firm, although not inflexible, rules relating to the identification and presentation of evidence. Taylor, 484 U.S. at 411. The Court ruled that preclusion of a witness could be a proper sanction for a discovery violation. Id.
In the present case, the trial court precluded the defense from calling Aragowe as a witness because defense counsel had not provided his name on her witness list that she was required to give to the prosecution pursuant to the reciprocal discovery order. Petitioner claims that the trial court erred in excluding Aragowe's testimony because his name was also listed on the prosecutor's own witness list, and therefore, there would be no prejudice to the prosecution in permitting Aragowe to testify. Although he does not directly argue it, there appears to be no evidence that defense counsel deliberately or intentionally withheld Aragowe's name from her witness list in an attempt to surprise the prosecution. Defense counsel, in fact, indicated that it was simply ineffective assistance of counsel on her part not to put Aragowe's name on the witness list.
T.I, p. 13.
The Tenth Circuit recently rejected a similar argument, holding that a state appellate court reasonably applied Taylor v. Illinois in upholding the exclusion of alibi testimony for the violation of a state rule by not listing a witness as an alibi witness, even though the witness was on a list of potential witnesses and counsel's failure to list him on the alibi list was inadvertent. See Watley v. Williams, 218 F.3d 1156, 1159-1160 (10th Cir. 2000).
Likewise, in the present case, the Michigan appellate courts' affirmance of the trial court's exclusion of Aragowe's testimony because of the violation of the discovery order was not an unreasonable application of the Supreme Court's holding in Taylor. However, in reading both Taylor and Watley, this Court notes that in each case some willful or blatant violation of the discovery rule had occurred. Neither Taylor nor Watley stand for the proposition that any failure to list a witness by defense allows the court to use its power to exclude the witness testimony. There must be some balancing between following discovery orders and prejudice to the prosecution and defendant. In this case, there is no prejudice to the prosecution because Aragowe was on the prosecution's witness list, had entered a plea, and was not going to be called until perhaps the next day. Neither the trial court nor the appellate court found any deliberate or willful intent to withhold Aragowe's name or to surprise the prosecution on defense counsel's part but that defense counsel was merely negligent in failing to name Aragowe as an alibi witness. The Court further notes that neither the trial court nor the state appellate courts engaged in balancing the interests at issue or considered whether less drastic measurers were adequate or appropriate. See Taylor, 484 U.S. at 413.
However, Petitioner's claim must fail because he has not identified the nature of the testimony and how the testimony would have assisted his defense. Petitioner has not shown that he would be prejudiced by the exclusion of Aragowe's testimony. The Sixth Amendment does not, by its terms, grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses; it merely guarantees the defendant compulsory process to obtain witnesses in his or her favor. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Petitioner cannot establish a violation of his constitutional right to compulsory process merely by showing that the testimony of a witness was excluded. Petitioner must make some plausible showing of how the testimony would have been both material and favorable to his defense. Id. Where a habeas petitioner fails to show how the testimony of a witness would be favorable to the defense, he is not entitled to habeas relief on this claim. See Stribling v. Smith, 2000 WL 796181, * 16 (E.D. Mich. May 31, 2000) (Friedman, J., adopting the Report and Recommendation of Magistrate Judge Paul J. Komives).
As the Michigan Court of Appeals noted in its opinion, petitioner has failed to show how Aragowe's testimony would have aided his defense. Petitioner's own testimony indicates that Aragowe was arrested and searched at the entry to the bar prior to Officer Clyburn approaching and speaking with petitioner. There is no indication that Aragowe knew what happened to petitioner following his arrest. Moreover, defense counsel never made an offer of proof as to what Aragowe's testimony would be, nor did she attempt to have Aragowe testify outside of the jury's presence to establish what his proposed testimony would be, even though it appears from the record that Aragowe was present in the courthouse lockup on the first day of trial. Because petitioner has failed to show how Aragowe's testimony would have been favorable to the defense, he is not entitled to relief on this claim.
Id. at pp. 10-18.
B. Claim #2. The judicial interference claim.
Petitioner next claims that the trial court's partial conduct deprived him of a fair trial. The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899 (1997). However, to state a claim that a judge is biased, a defendant must show either actual bias or the appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe, 106 F.3d 1498, 1504 (6th Cir. 1997). To sustain an allegation of judicial bias, a habeas petitioner must demonstrate that during the trial the judge assumed an attitude which went further than an expression of his or her opinion and impressed the jury as being more than an impartial observer. Hines v. Redman, 805 F.2d 1034, 1986 WL 18068, * 2 (6th Cir. 1986) (citing to Brinlee v. Crisp, 608 F.2d 839, 852-853 (10th Cir. 1979). A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a significant degree before habeas relief could be granted. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985). In evaluating potential prejudice of a trial court's comments, the comments should not be reviewed in isolation, but in the context of the whole trial. Bell v. Evatt, 72 F.3d 421, 434 (4th Cir. 1995). Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.) (citing to Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956)). Where a habeas petitioner fails to submit facts demonstrating that he was treated unfairly by a trial judge, his judicial bias issue lacks merit for habeas corpus relief. Toliver v. McCaughtry, 910 F. Supp. 1366, 1373 (E.D. Wis. 1995).
In the present case, petitioner has failed to offer any evidence of Judge Geraldine Bledsoe Ford's bias other than to point to adverse rulings against him. Most of these rulings involved Judge Ford requiring defense counsel to lay a foundation before asking a prosecution witness a particular line of questions. This alone does not establish judicial bias. Hence, 49 F. Supp.2d at 549. Even if some of Judge Ford's evidentiary rulings were incorrect, that alone would not establish judicial bias against petitioner. See United States v. Gallagher, 576 F.2d 1028, 1039 (3rd Cir. 1978). Judge Ford's comments never pierced the veil of impartiality. In none of the complained of comments, did she give the impression to the jury that she thought that petitioner was guilty of the offense or that the jury should not believe his testimony. Petitioner was ultimately able to present his defense to the jury. Petitioner's judicial bias claim does not entitle him to relief.
C. Claim #3. The admission of evidence claim.
Petitioner next claims that he was denied a fair trial when the trial court permitted the prosecutor to elicit hearsay testimony from Officer Clyburn that Officer Hull told him that he had observed a narcotics transaction that had just taken place and that the individual who purchased the narcotics was walking north on Lansing street. Petitioner also claims that the prosecutor asked an impermissible leading question to Officer Clyburn during the following exchange:
Vol. I, pp. 55-56.
By Mr. Stevens [the prosecutor]: Okay. Did he [Hull] indicate who the individuals were who actually supplied the narcotics or engaged in the transaction?
Clyburn: Yes.
Stevens: Was Mr. Diaz one of those persons?
Id. at p. 56.
Habeas review does not encompass state court rulings on the admission of evidence unless there is a federal constitutional violation. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994); Fuson v. Jago, 773 F.2d 55, 59 (6th Cir. 1985). Only where the erroneous application of state law deprives a petitioner of a fundamental constitutional guarantee will a federal court inquire into the state court rulings. Donnelly v. De Christoforo, 416 U.S. 637, 642-643 (1974); Fuson v. Jago, 773 F.2d at 59. Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case so as to deny the defendant the fundamental right to a fair trial. Welch v. Burke, 49 F. Supp.2d 992, 1000 (E.D. Mich. 1999) (Cleland, J.).
In the present case, the Michigan Court of Appeals determined that admission of Clyburn's testimony concerning what Officer Hull had told him over the radio did not constitute hearsay because it was not offered for the truth of the matter asserted but to discover why Officer Clyburn pursued the crack buyer and why he went to the bar where petitioner was located. What is or is not hearsay evidence in a state court trial is governed by state law. Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997). Moreover, rulings on the admissibility of evidence are within the discretion of a state trial court judge and that discretion is not reviewable in a federal habeas corpus proceeding. Ringstaff v. Mintzes, 539 F. Supp. 1124, 1130 (E.D. Mich. 1982) (Taylor, J.). The Michigan courts' determination that Clyburn's testimony was not hearsay because it was not offered for the truth of the matter asserted but to show why he undertook certain actions is a decision that is not reviewable on federal habeas review, particularly where the testimony did not affect the fundamental fairness of the trial.
Petitioner's claim concerning the prosecutor's leading question to Officer Clyburn must also be rejected. The validity of a ruling permitting a prosecutor to ask leading questions is reviewable in a federal habeas proceeding only insofar as it resulted in a trial so fundamentally unfair as to deny the petitioner due process. Wallace V. Lockhart, 701 F.2d 719, 725 (8th Cir. 1983). Although it may have been impermissible to ask Clyburn a leading question about whether one of the men observed by Hull during the drug transaction was petitioner, any error was corrected when defense counsel got Clyburn to admit that he didn't witness the drug transaction himself. This isolated leading question did not result in a fundamentally unfair trial to petitioner. Petitioner's third claim does not entitle him to habeas relief.
D. Claims #4 and 6. The prosecutor improperly admitted evidence concerning petitioner's post-arrest silence.
In his fourth claim and in part of his sixth claim, petitioner argues that the prosecutor impermissibly questioned petitioner about his post-arrest silence and his failure or refusal to make a statement to the police. He also claims that the prosecutor argued this failure to make a statement to the police in his closing argument to attack petitioner's credibility. In rejecting this claim, the Michigan Court of Appeals noted that petitioner's own testimony created the impression that the trial was his first opportunity to tell his version of the events leading up to his arrest. The Michigan Court of Appeals further noted that defense counsel had opened the door to this line of questioning by asking the officer in charge of the case, Officer Parker, whether any officers had taken a written statement from petitioner.
It is a violation of the Due Process clause of the Fourteenth Amendment for the prosecution to use a defendant's post-arrest silence to impeach exculpatory testimony given by the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 619 (1976); See also Gravley v. Mills, 87 F.3d 779, 786 (6th Cir. 1996). However, the fact of post-arrest silence can be used by the prosecutor to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation, the fact of the earlier silence is not being used to impeach the defendant's exculpatory story, but to challenge the defendant's testimony as to his behavior following his arrest. Doyle v. Ohio, 426 U.S. 610, 619 n. 11. The prohibition against reference to post-arrest silence does not allow the defendant to "freely and falsely create the impression that he has cooperated with police when, in fact, he has not". Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996) (quoting United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975)). Reference to post-arrest silence is permissible for rebuttal purposes when defendant implies that he cooperated with the police or implies that he gave the police an exculpatory statement. Id.
In the present case, petitioner testified that he wanted to give his version of events to the police at the time of the arrest, but that the officer did not want to talk to him or listen to his side of the story. In United States v. Maverick, 601 F.2d 921, 932-933 (7th Cir. 1979), the Seventh Circuit held that the prosecutor's references to the defendant's post- Miranda silence was permissible to rebut the defendant's assertion on direct examination that he was not given an opportunity to explain his story to the authorities and was told by the police to "shut up" and "they don't want to hear it". The Seventh Circuit ruled that this testimony permitted the prosecution to discredit the defendant by showing that he was given an opportunity to explain his conduct and did not take advantage of it. Id. at 933. See also United States v. Butler, 924 F.2d 1124, 1129 (D.C. Cir. 1991) (prosecutor's references to Butler's silence permissible because of Butler's claim on direct examination that he never had an opportunity to explain his circumstances to the police).
In the present case, petitioner testified that he wanted to explain his version of events to the police but was not given an opportunity to do so. References to petitioner's post-arrest silence were permissible to rebut his testimony that he was not given an opportunity to explain his version of events to the police, as well as to rebut the impression made by petitioner that he cooperated with the police following his arrest. Petitioner is therefore not entitled to habeas relief on this claim.
E. Claims # 5 and 6. The prosecutor engaged in misconduct by engaging in unwarranted aspersions concerning petitioner's name.
In his fifth claim and in part of his sixth claim, petitioner claims that the prosecutor unfairly and repeatedly accused petitioner of trying to trick the police by claiming that his name was Ernest Perez rather than Ernest Diaz. Petitioner contends that this is unfair because under the Spanish language, a person normally has three names. The first name is the individual name, the second name is the individual's family name, which is the father's name, and the third name is the family name of the mother. Petitioner's full name is Ernest Perez Diaz. Under the Spanish language, petitioner's family name would be Perez and not Diaz. At trial, petitioner insisted that his last name was, in fact, Perez, and not Diaz, although he never offered the above explanation as to why his last name was Perez and not Diaz. The prosecutor argued that petitioner used the name Perez to attempt to confuse the police. Petitioner acknowledges that he does not claim that it was intentional misconduct for an English language prosecutor to fail to understand how the Spanish language operates, but claims that the prosecutor's misunderstanding created a false impression that petitioner lied to the police officers by giving them a false last name.
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). A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for a prosecutor's statements or conduct must be viewed in context and only in doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial. See United States v. Young, 470 U.S. 1, 11 (1985). Moreover, 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) (Cohn, J.). 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. Serra v. Michigan Department of Corrections, 4 F.3d at 1355-1356.
The main problem with petitioner's argument is that he concedes that the prosecutor's argument here was unintentional. As the Michigan Court of Appeals indicated, petitioner never testified at trial that the police mistakenly called him Ernest Diaz because they did not understand the Spanish-speaking method of using names. Petitioner instead claimed that the police had confused him with another man named Ernest Diaz who had an outstanding traffic warrant. In any event, there is no indication here that the prosecutor knew about the Spanish speaking method for using names. Petitioner is therefore unable to show that the prosecutor deliberately attempted to mislead the jury by giving them a false impression that petitioner was using the name Perez in an attempt to trick the authorities rather than as his proper last name. Petitioner's prosecutorial misconduct claim does not entitle him to habeas relief.
F. Claims #7, 8, and 9. The sentencing claims.
Petitioner next raises several claims related to his sentencing. Petitioner claims that the trial court incorrectly scored his guidelines range under the Michigan Sentencing Guidelines. He further argues that the trial court improperly based petitioner's sentence on his status as a foreigner. Petitioner lastly claims that the sentence of ten to twenty years in prison for delivering less than two grams of cocaine was not proportionate to the offense.
Petitioner's claim involving the trial court's allegedly improper interpretation of the state's sentencing guidelines is not a cognizable claim for federal habeas review. See Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999) (Gadola, J.). Petitioner has no state created liberty interest in having the Michigan sentencing guidelines applied rigidly in determining his sentence. Thomas v. Foltz, 654 F. Supp. 105, 106-107 (E.D. Mich. 1987) (Cohn, J.). To the extent that petitioner is claiming that his sentence violates the Michigan state sentencing guidelines, his claim is not cognizable in a habeas proceeding because it is a state law claim. Id.
Petitioner further claims that the trial court improperly use his status as a foreign national in imposing sentence by mentioning his Cuban nationality. At the time of sentencing, Judge Ford made the following comments:
THE COURT: Doesn't he [petitioner] like the United States?
MS. DIAZ [the court appointed interpreter who interpreted for petitioner]: Yes, I do.
THE COURT: Does he feel grateful for being here, the opportunities that you can have here?
MS. DIAZ: Yes.
THE COURT: Well, why does he treat his new county [sic] like the way, you know he's treating his country?
The court went on to state that petitioner had discredited both himself and his new country, which had welcomed him.
Sentence Transcript, pp. 8-9.
In rejecting petitioner's claim, the Michigan Court of Appeals ruled that the trial court's comments were directed towards petitioner's criminal and personal history, not his nationality. A review of the sentencing transcript, in fact, shows that the trial court also discussed petitioner's sentencing guidelines range, as well as the fact that petitioner was on parole for another drug offense.
Id. at pp. 6-8.
In sentencing a defendant, reference to national origin and naturalized status is permissible, so long as it does not become the basis for determining the sentence. United States v. Jacobson, 15 F.3d 19, 23 (2nd Cir. 1994). There is no indication that Judge Ford based her sentencing decision on petitioner's ethnic background or national origin, rather than on his prior criminal history and background.
Petitioner lastly claims that the trial court imposed a sentence that was disproportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin, 501 U.S. at 1001. Petitioner's claim that his sentence is disproportionate does not state a claim upon which habeas relief can be granted. See Atkins v. Overton, 843 F. Supp. 258, 260 (E.D. Mich. 1994) (Gadola, J.); Welch v. Burke, 49 F. Supp.2d at 1009.
A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d at 797. Delivery of less than fifty grams of cocaine is punishable by a sentence of up to twenty years in prison. Because petitioner's sentence was within the statutory limits for this crime, this Court will not set the sentence aside. See Welch v. Burke, 49 F. Supp.2d at 1009; Colon v. Smith, 2000 WL 760711, * 6 (E.D. Mich. May 8, 2000) (Borman, J.). Petitioner is not entitled to habeas relief on his sentencing claims.
G. The ineffective assistance of counsel claims.
Petitioner lastly alleges the ineffective assistance of counsel.
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." Strickland, 466 U.S. at 694.
2. The individual claims
a. Failure to list Aragowe's name on the witness list.
Petitioner first contends that counsel was ineffective for failing to provide Aragowe's name on her witness list, thus preventing him from calling Aragowe as a witness. The Michigan Court of Appeals rejected this claim, noting that because petitioner had failed to show how Aragowe's testimony would have aided his defense, he had not established that he was prejudiced by counsel's failure to present the co-defendant's testimony.
In order for a criminal defendant to demonstrate prejudice from a defense attorney's allegedly ineffective assistance of counsel for failing to call certain witnesses, a defendant must not only show that the testimony of the witnesses would have been favorable, but that the witnesses would have testified at trial. See Reed v. Sowders, 904 F.2d 708, 1990 WL 79215, * 3 (6th Cir. June 12, 1990) (citing to Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). Because petitioner has not given a description of the subject matter of the potential testimony, he has not raised a cognizable claim under Strickland. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). Moreover, petitioner's claim must fail because he has provided no credible evidence that his codefendant was at the time of trial willing to waive his own Fifth Amendment rights against self-incrimination to exculpate petitioner. See United States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992).
b. Failure to object to the use of petitioner's post-arrest silence.
Because the prosecutor's comments regarding petitioner's post-arrest silence were not improper, counsel's failure to object was not ineffective assistance of counsel. See Solomon v. Kemp, 735 F.2d 395, 403 (11th Cir. 1984).
c. Failure to gain sufficient understanding of Spanish names.
Petitioner claims that his attorney provided ineffective assistance of counsel by failing to gain a sufficient understanding of the way Spanish names are utilized in order to overcome the prosecutor's argument that petitioner was lying about his last name. Petitioner has offered no evidence that he ever attempted to explain how Spanish names are used to his attorney. Moreover, the Michigan Court of Appeals rejected this part of petitioner's claim, noting that defense counsel had used the police officers' confusion about petitioner's last name in an attempt to argue that the police were attempting to pin this crime on him, rather than on another Ernest Perez Diaz who had an outstanding traffic warrant.
TII., p. 41.
3. Conclusion
Petitioner was not deprived of the effective assistance of counsel.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and DISMISSED WITH PREJUDICE.