Opinion
Case No. 4:00-CV-111.
June 3, 2003.
ORDER
This matter is before the Court on Petitioner's Objections to Magistrate Judge Ellen S. Carmody's Report and Recommendation ("Report").
I. Procedural History
Petitioner filed this application for habeas corpus relief pursuant to 28 U.S.C. § 2254 alleging the following:
1) his state and federal due process rights were violated when he was not discharged, because the 1989 Amendment to Michigan Compiled Laws § 780.131(2); Michigan Statutes Annotated §§ 28.969(1), (2) is unconstitutional, and the prosecutor failed to bring him to trial within 180 days of the arrest warrant;
2) his state and federal due process rights were violated when he was not discharged, because the gross indecency statute is constitutionally void for vagueness, and consensual sexual intercourse between a husband and wife does not constitute gross indecency;
3) his state and federal due process rights were violated when he was not discharged, because there was insufficient evidence to sustain the conviction, and the prosecution withheld evidence that would have exonerated him;
4) he was deprived of his state and federal rights to due process of law, fair trial, and to the effective assistance of counsel, where defense counsel failed to call witnesses essential to the assertion of an "innocence" defense; and where defense counsel further failed to investigate video tape evidence that would have been exculpatory to petitioner's innocence defense; and
5) his conviction violated the double jeopardy clause under both state and federal constitutions.
Magistrate Judge Carmody issued a Report addressing the merits of Petitioner's claims. Magistrate Judge Carmody found grounds one and two raise noncognizable state law claims, ground two is procedurally defaulted, and grounds three, four and five are without merit and therefore recommends denial of the petition.
II. Facts
According to the facts at trial, as recited more fully in Magistrate Judge Carmody's Report, on April 1, 1995, Petitioner was an inmate at J. Robert Cotton Correctional Facility ("JCF") in Jackson, Michigan. During a visit with his family on that date, Petitioner engaged in sexual intercourse with his wife in the visiting room of JCF. Petitioner now is serving a five to ten year sentence after conviction by a jury on June 25, 1997 of gross indecency in violation of Michigan Compiled Laws § 750.338b.
In September 1997, Petitioner filed a direct appeal to the Michigan Court of Appeals. On May 21, 1999, the Michigan Court of Appeals affirmed Petitioner's conviction. The Michigan Supreme Court denied Petitioner's delayed application for leave to appeal on September 29, 1999. Petitioner filed the present claim for relief on July 14, 2000.
III. Standard of Review
This Court performs a de novo review of specifically objected to sections of a magistrate judge's report; the court may accept, reject, or modify the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b); L. Civ. R. 72.3(b); Lardie v. Burkett, 221 F. Supp.2d 806,807 (E.D. Mich. 2002). In conducting its review, the court may not reconsider a state court decision on state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id.
The district court's review of state court decisions on any grounds is further limited by the Antiterrorism and Effective Death Penalty Act ("AEDPA") passed by Congress in April 1996. 28 U.S.C. § 2254(d) states:
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.
Therefore, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. . . . [A] federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000) (concurring opinion).
The Sixth Circuit Court of Appeals outlined how courts should apply AEDPA as follows:
A. Decisions of lower federal courts may not be considered.
B. Only the holdings of the Supreme Court, rather than its dicta, may be considered.
C. The state court decision may be overturned only if:
1. It `[applies] a rule that contradicts the governing law set forth in [Supreme Court of the United States] cases;' or the Supreme Court precedent must exist at the time of petitioner's direct appeal; or
2. the state-court decision `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent;' or
3. `the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;' or
4. the state court `either unreasonably extends a legal principle from [a Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'
D. Throughout this analysis the federal court may not merely apply its own views of what the law should be. Rather, to be overturned, a state court's application of Supreme Court of the United States precedent must also be objectively unreasonable. That is to say, that `a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.' `[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law.'
E. Findings of fact of the state courts are presumed to be correct. `The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001) (internal citations omitted); see also Williams, 529 U.S. at 411 (concurring opinion) (stating "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . that application must also be unreasonable").
III. Analysis
A. Petitioner's First Objection
Petitioner argues that he was denied due process of law under both state and federal law because the prosecutor failed to bring him to trial within 180 days of the arrest warrant. Pursuant to Michigan Compiled Laws § 780.131(2), prosecution of a criminal offense committed by an inmate of a state correctional facility while incarcerated in the correctional facility is not subject to the 180 day requirement. Additionally, the Michigan Court of Appeals held that the 180-day rule, as applied in this case, had not been violated as a matter of fact. Such a ruling is not reviewable by this Court as it involved a state court determination of a state law question.
According to the law on petitions for writ of habeas corpus by an inmate incarcerated pursuant to a state court conviction, "a determination of a factual issue made by a State court shall be presumed to be correct" unless rebutted by the petitioner. 28 U.S.C. § 2254(e)(1). Furthermore, it is well established that federal courts generally may not intervene to reexamine or correct a perceived error in application of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). In the instant case, there is no reason to doubt the accuracy of the state court's determination of state law and therefore, no justification for ignoring this rule. Wilson v. Mitchell, 250 F.3d 388, 396-97 (6th Cir. 2001) (internal citations omitted). Petitioner's objection on this basis is denied.
B. Petitioner's Second Objection
Petitioner argues that Michigan's gross indecency statute, under which he was convicted, is constitutionally void for vagueness and that consensual sexual intercourse between a husband and wife cannot violate the gross indecency statute. To the extent Petitioner is challenging state court determination of state law, as indicated above, this Court cannot review such a claim. With respect to Petitioner's claim that the statute is void for vagueness, upon review, the Court finds Magistrate Judge Carmody correctly determined the claim is barred by procedural default.
The Michigan Court of Appeals rejected Petitioner's constitutional challenge to the gross indecency statute on the ground that the claim was not properly presented for review. "When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunemaker, 501 U.S. 797, 801 (1991) (internal citations omitted). There are circumstances in which a petitioner may overcome this rule. If 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," federal habeas review may occur. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Also, if a petitioner makes a colorable claim of innocence, pursuant to new evidence, default may be excused. Schiup v. Delo, 513 U.S. 298, 322, 324 (1995).
It is clear that the state court relied on a well-established state law procedural rule to dismiss Petitioner's constitutional claim. Petitioner has not offered "some objective factor external to the defense" to explain his failure to comply with the state law procedural rule and thereby establish cause for such failure. Murray v. Carrier, 477 U.S. 478, 488 (1986). As a result, this Court need not determine whether he has established prejudice. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982). Finally, Petitioner has made no claim of actual innocence by which to excuse his default. Therefore, Petitioner's constitutional claim is procedurally barred and his objection is denied.
C. Petitioner's Third Objection
Petitioner states that the state presented insufficient evidence to convict him for gross indecency. In particular, he argues: 1) that the hearing officer was required under law to interview live witnesses at the hearing and failed to do so; 2) that the prosecutor withheld a videotape that would have served as exculpatory evidence; and 3) that the reporting officer's testimony alone was insufficient to convict him, since the officer "merely assumed a sexual act occurred."
In deciding a claim of insufficient evidence to convict, the Court must determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The Court need not be convinced by the evidence but must find that "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Specifically, the Court must determine if the substantive elements of the charge, as determined by state law, have been satisfied such that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. at 324 n. 16. The Court may judge such a claim on the written record. Id. at 322.
According to an unpublished Sixth Circuit Court of Appeals case, claims of insufficient evidence are reviewed under § 2254(d)(1) to determine whether the state court's conclusion that sufficient evidence exists amounts to an unreasonable application of the test to the facts of the case. Brazzell v. Warden, No. 98-1757, 1999 WL 1204795, **6 (6th Cir. 1999) (citing Gomez v. Acevedo, 106 F.3d 192 (7th Cir.), vacated on other grounds sub nom. Gomez v. Detella, 118 S.Ct. 37 (1997)); see also Welch v. Burke, 49 F. Supp.2d 992, 1000 (E.D. Mich. 1999).
Michigan Compiled Laws § 750.338b provides as follows: "Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section." The jury in Petitioner's trial was instructed as follows:
First, that the defendant voluntarily committed sexual intercourse with another person. Consent of the other person is not a defense. It does not matter whether the sexual act is completed or whether semen is ejaculated: Second, that the sexual intercourse was committed in a public place. A public place is a place in which it was reasonably foreseeable that the conduct would be observed by members of the public.
The record evidence supports a finding beyond a reasonable doubt that Petitioner's act met the elements of this crime as stated in the uncontested jury instructions. The Michigan Court of Appeals finding that the record contained sufficient evidence to convict Petitioner was not an unreasonable application of the law to the facts. Petitioner is not entitled to habeas relief on this basis.
With respect to Petitioner's claim that the prosecutor withheld exculpatory evidence, the Court finds Petitioner has neither identified any witnesses who would have presented exculpatory evidence nor introduced any evidence that a videotape of the visitors' room exists or ever existed. Moore v. llinois, 408 U.S. 786, 794-95 (1972). The state court's conclusion that no exculpatory evidence had been withheld does not contradict Supreme Court precedent nor does it involve an unreasonable application of law to fact. Therefore, Petitioner presents no basis for habeas relief on this ground.
D. Petitioner's Fourth Objection
Petitioner argues that he was provided with ineffective assistance of counsel, because trial counsel did not effectively question witnesses who were in the visitors' room at the time of the alleged offense nor did he challenge the constitutionality of the statute under which Petitioner was charged and convicted.
Under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), Petitioner must prove both that counsel's performance fell below an effective standard of reasonableness and that this poor performance prejudiced him by leading to a fundamentally unfair outcome. Because petitioner has failed to identify any witnesses who would have presented evidence favorable to him, he has failed to meet the second prong of this test. Counsel's failure to challenge the constitutionality of the gross indecency statute and the 180 day rule was not objectively unreasonable as the Michigan Supreme Court previously had held that the 180 day rule did not apply to criminal offenses committed by prison inmates, People v. Smith, 475 N.W.2d 333 (1991), and the Michigan Court of Appeals previously had held that the gross indecency statute does apply to sexual intercourse between a husband and wife, People v. Jones, 563 N.W.2d 719 (1997). Therefore, the objection is denied.
E. Petitioner's Fifth Objection
Petitioner argues that his conviction violated double jeopardy, because he had already been punished in a prison administrative hearing. The Michigan Court of Appeals held that administrative punishment by the internal procedure of the Michigan Department of Corrections does not constitute criminal prosecution so as to subject a defendant to double jeopardy protection. The state court relied on United States v. Galan, 82 F.3d 639, 640 (5th Cir. 1996) in reaching its conclusion. The Fifth Circuit Court of Appeals followed other circuits in determining "prison disciplinary proceedings do not bar future criminal prosecutions." Galan, 82 F.3d at 640.
The Fifth Amendment of the United States Constitution protects Petitioner from multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds sub nom. Alabama v. Smith, 490 U.S. 794 (1989). However, this protection is only from multiple criminal punishments for the same offense. Hudson v. United States, 522 U.S. 93, 99 (1977). Therefore, courts must determine whether a sanction is criminal or civil, at least initially, as a matter of statutory construction. Id. More recently, recognizing that civil remedies may be both punitive and remedial, the Supreme Court held that imposition of a civil penalty may in certain limited circumstances bar prosecution for a criminal offense. United States v. Halper, 490 U.S. 435, 448-50 (1989). "Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." Id. at 448. Since Halper, however, the Supreme Court has backpedaled somewhat. In Hudson, the court stated:
First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a `criminal' punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute `punishment.' In so doing, the Court elevated a single Kennedy [ v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)] factor — whether the sanction appeared excessive in relation to its nonpunitive purposes — to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they `may often point in differing directions.' 372 U.S. at 169. The second significant departure in Halper was the Court's decision to `asses[s] the character of the actual sanctions imposed,' rather than, as Kennedy demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction, 372 U.S. at 169. We believe that Halper's deviation from longstanding double jeopardy principles was ill considered.Hudson, 522 U.S. at 101. Therefore, this Court seeks to determine whether an internal administrative punishment is civil or criminal in nature in order to evaluate the merits of Petitioner's double jeopardy claim.
As indicated in Magistrate Judge Carmody's report, subsequent federal district and circuit courts addressing this same issue have universally concluded that prison disciplinary proceedings do not bar future criminal prosecution. This Court agrees that prison disciplinary proceedings are remedial in nature and designed to insure the safety and security of the institution. As such, they do not constitute criminal prosecution and do not raise a double jeopardy concern. See e.g., United States v. Mayes, 158 F.3d 1215, 1221-22 (11th Cir. 1998). Petitioner's objection on this basis is denied.
Case citations may be found in Magistrate Judge Carmody's Report.
As a final matter, Petitioner seeks permission to supplement his objections. In light of the above, the Court finds no reason for allowing him to do so and will deny this request.
IV. Conclusion
Therefore, the Court will deny Petitioner's Objections. The Court will adopt Magistrate Judge Carmody's Report.
FINAL ORDER
In accordance with the Opinion issued this date,
IT IS HEREBY ORDERED that Petitioner's Objections (Dkt. No. 30) are DENIED. IT IS FURTHER ORDERED that Magistrate Judge Ellen S. Carmody's Report and Recommendation (Dkt. No. 29) is ADOPTED. IT IS FURTHER ORDERED that Petitioner's application for writ of habeas corpus (Dkt. No. I) is DENIED.