Opinion
Case Number 99-10481-BC
October 15, 2002
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Daniel Rodriguez, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 alleging that he is currently in custody at the Mound Correctional Center in Detroit, Michigan pursuant to a state court judgment of conviction. In his petition filed through counsel, Rodriguez challenges his 1996 convictions in the Oakland County, Michigan Circuit Court for possession with intent to deliver over 650 grams of cocaine and criminal conspiracy, Mich. Comp. Laws §§ 333.7403(2)(1)(i), 750.157a, 333.7401(2)(a)(i), and his resulting life sentences. He argues that he was denied a fair trial when the state prosecutor introduced evidence that Rodriguez matched the profile of a high level drug dealer, and that he was part of a Puerto Rican drug connection. The case was referred to Magistrate Judge Charles E. Binder for the issuance of a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) after the respondent was ordered to answer the allegations in the petition according to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.
The respondent did not address the merits of the petition, but rather argued that the petitioner failed to follow state procedures to preserve his claim, and his default was not excusable. The Magistrate Judge agreed, concluding there was no cause for the petitioner's procedural default, and recommended that the petition be denied.
The petitioner filed timely objections to the Report and Recommendation. After a de novo review of the record in light of the petitioner's claims and the objections filed, the Court concludes that the petitioner's constitutional claims are procedurally defaulted. The Court disagrees with the Magistrate Judge's conclusion that the petitioner failed to establish cause for the failure to pursue an appeal to the Michigan Supreme Court, but concludes that the petitioner has not established prejudice or actual innocence. The Court will therefore adopt the Magistrate Judge's recommendation, reject the conclusions in the report, and dismiss the petition.
I.
The petitioner was convicted of the above-referenced crimes along with two codefendants in the same trial before separate juries.
The evidence discloses that Corey Harvey agreed to cooperate with the police after he had been arrested for possessing cocaine. Harvey contacted the petitioner, whom he identified as a "high-level" drug dealer, to arrange for the purchase of a kilogram of cocaine. The petitioner in turn introduced Harvey to codefendant Luis Rosado, who was the purported organizer of the transaction. The defendants, including codefendant Raul David, were all arrested at Rosado's residence on February 7, 1995 when police, executing a search warrant there, seized a kilogram of cocaine from the basement while the three defendants were present in the home.
At trial, Harvey was permitted to testify to the hierarchy of drug dealers, characterizing the petitioner as a high-level "kilo dealer." A police officer provided so-called expert testimony on the profile of high-level drug dealers, concluding that the petitioner fit that profile. Another police officer testified that the petitioner was an "upper-level" "kilo" dealer. Finally, Sergeant Steven Sitar testified that he was working "with Puerto Rican drug people" who were "very cautious, very suspicious" and that he did not promptly execute the search warrant before suspicions were aroused and the cocaine removed.
The petitioner appealed his conviction and sentence to the Michigan Court of Appeals raising fifteen issues, including the one set forth in the habeas petition, that the trial court erred in permitting "expert" testimony that the petitioner was a high level drug dealer, and allowing evidence of the petitioner's ethnicity and purported connection to a Puerto Rican drug ring. In rejecting that issue as a basis for reversal, the court of appeals stated:
We conclude that most of the sergeant's testimony is not properly characterized as impermissible profile evidence, and was properly admitted expert testimony. We further conclude that the limited profile testimony was harmless, and not decisive of the outcome of the case. There was substantial direct evidence of defendants' guilt, independent of the profile evidence. We conclude that defendants were not found guilty based on profile evidence, and we find no error requiring reversal.
People v. Rodriguez, Michigan Court of Appeals Docket No. 197584 (November 10, 1998) at 2-3.
Because of an unusual development, the petitioner never filed an application for leave to appeal in the Michigan Supreme Court, although he hired a lawyer to do so for him. According to the record in this case, the lawyer ran out of time to file the application because his appellate file was in a colleague's automobile which was impounded by the police. As the lawyer explained, "the police refused to give [the file] to me until they released the car. I was helpless. I spoke with the Clerk of the Supreme Court and I was informed that the deadline could not be extended for `any reason', including things totally out of one's control." Letter of Charles H. Noble, January 26, 1999 at 1.
On December 10, 1999, the petitioner filed the instant petition which raised the following single issue:
WAS PETITIONER RODRIGUEZ DENIED A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE SIXTH AND FOURTEENTH AMENDMENTS BY THE INTRODUCTION OF POLICE AND INFORMANT "EXPERT" TESTIMONY THAT PETITIONER MET THE PROFILE OF A "HIGH LEVEL" DRUG DEALER AND WAS PART OF A PUERTO RICAN DRUG CONNECTION?
II. A.
Although the petitioner has not fully exhausted his state court remedies for the issue raised in his habeas petition, the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) and (c) does not bar review of the claims here because the petitioner no longer has state remedies available to him. The doctrine of exhaustion of state remedies requires state prisoners to present their claims to the state courts before raising them in a federal habeas corpus petition. See id.; O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845. Thus, state prisoners in Michigan must present their claims to the Michigan Court of Appeals and the Michigan Supreme Court before presenting them in a federal habeas corpus petition. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir. 1973).As noted above, the petitioner never filed an application for leave to appeal in the state supreme court because his attorney's case file was impounded by the police, and therefore the petitioner has not satisfied the exhaustion requirement by raising his claims at all levels of state court review. Exhaustion of state remedies entails "presenting the legal and factual substance of every claim to all levels of state court review." Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987).
But failure to exhaust bars review only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner no longer has an effective state remedy to exhaust because the deadline for appealing the court of appeals decision to the state supreme court has expired. See Mich. Ct. R. 7.302(C)(3) (requiring applications for leave to appeal in the Michigan Supreme Court to be filed within fifty-six days of the decision made by the Michigan Court of Appeals).
The petitioner cannot restart the appellate process by filing a post-conviction motion because the Michigan Court Rules prohibit filing such motions for relief from judgment which raise issues already presented on direct review. See Mich. Ct. R. 6.508(D)(2).
Since the Michigan Court of Appeals has ruled on the petitioner's claim, refiling his claims in the trial court for the purpose of running the complete state gamut would not be allowed. See id. (stating that relief from judgment may not be granted when a post-conviction motion alleges grounds for relief that were decided against defendant in prior motion or appeal unless a retroactive change in the law undermined the prior decision).
Thus, the petitioner is barred from pursuing an otherwise available state court remedy, and his claims must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161 (1996); Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)).
B.
The evaporation of state procedural remedies caused by the passage of time will not completely excuse a prisoner's failure to avail himself of them, however. The Court may review a prisoner's procedurally defaulted claims on the merits only if the prisoner shows cause for not raising his claims at all levels of state court review and prejudice, or that he is actually innocent of the crimes for which he was convicted. Gray, 518 U.S. at 162; Hannah v. Conley, 49 F.3d 1193,1195-96 1196 n. 3 (6th Cir. 1995) (citing Coleman, 501 U.S. at 750, and Murray v. Carrier, 477 U.S. 478, 496 (1986)).
1.
To establish "cause," a petitioner must show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Carrier, 477 U.S. at 488. Objective impediments may include an unavailable claim, some interference by officials, and ineffective assistance of counsel. Id.
The Magistrate Judge concluded that the petitioner could not rely on a claim of ineffective assistance of counsel as "cause" for not filing the leave application in the state supreme court because, according to Edwards v. Carpenter, 529 U.S. 446 (2000), the ineffective assistance claim itself must be exhausted, and further, because the petitioner had no constitutional right to an attorney at the discretionary review stage, he cannot suffer a violation of a constitutional right by his attorney's substandard performance, citing Wainwright v. Toona, 455 U.S. 586 (1982). The Court cannot accept this conclusion, however, because the Magistrate Judge's analysis presumes a scenario in which counsel's performance as an advocate is the subject of scrutiny. In this case, the act of default did not concern a tactical decision, the exercise of judgment, implementation of legal training, or the professional investment of skill, time or energy. All counsel had to do was to see that a paper was filed on time. In that regard, he was not called upon to function as an attorney, but merely as a clerk. Thus, the analysis of counsel's performance under the ineffective assistance standard required by Strickland v. Washington, 466 U.S. 668, 687 (1984), is neither useful nor appropriate.
Nor does this case involve a mere miscalculation of the time it might take to mail a jurisdictional document to a state court, as occurred in Shorter v. Ohio Dep't of Rehabilitation and Corr., 180 F.3d 723 (6th Cir. 1999). In that case, the Sixth Circuit considered whether late delivery of mail is "cause" for a party's failure to file a timely appellate brief in state court. Defense counsel deposited Shorter's state appellate brief in the United States Postal Service on Saturday, July 1, 1995. The attorney anticipated that the brief would arrive in the Ohio Supreme Court on Monday, July 3, 1995, which was the deadline for filing the brief. The Postal Service delivered the brief on Wednesday, July 5, 1995, and the Ohio Supreme Court dismissed Shorter's appeal for lack of prosecution and for failure to file the brief in compliance with court rules. On habeas review, the United States District Court noted that counsel had elected not to hand deliver the brief by driving from Medina to Columbus, but relied instead on the United States Postal Service, concluding that if defense counsel's reliance on the Postal Service constituted "cause" for Shorter's state procedural default, there was no hope for the concept of finality. Id. at 726. The Sixth Circuit agreed and affirmed the district court's judgment after concluding that counsel's efforts were inadequate and not impeded by an objective factor external to the defense. Id. The Sixth Circuit found it "immaterial that [Shorter] — and his counsel — could not control the delivery of the brief once it was submitted to the vagaries of the Postal Service's operations." Id.
In this case, it was not only the appellate lawyer but also the police action of impounding the appellate file which was the cause of the missed supreme court deadline and the loss of opportunity to file a leave application. Therefore, the proper inquiry in light of all the circumstances is the one noted above: whether there was "some objective factor external to the defense [that] impeded [the petitioner's] efforts to comply with the State's procedural rule." Carrier, 477 U.S. at 488. It is difficult to conceive of how the petitioner could have controlled the circumstances in this case, and thus the conclusion is inescapable that failure to file the leave application within the time in which it would have been accepted by the state supreme court was beyond his control and "external to the defense." The Court concludes, therefore, that the petitioner has shown cause for his failure to file a timely application in the Michigan Supreme Court. The Magistrate Judge's contrary conclusion is rejected.
Arguably, the petitioner's claims are also defaulted due to his failure to object to the introduction of the profile evidence on the grounds raised in this petition. Defense counsel did object, but only on the basis of relevance. The Court finds that enforcement of this default, which was relied upon by the Michigan Court of Appeals in denying the petitioner's appeal on this issue, would not be appropriate for two reasons. First, the respondent did not raise this procedural default in his response. Therefore, like any other affirmative defense, the argument is deemed waived. See Dickens v. Jones, 203 F. Supp.2d 354, 361 (E.D.Mich. 2002).
Second, it would be incongruous to enforce a procedural default against the petitioner who objected to improper testimony, albeit on the wrong ground, where the beneficiary of said default, the respondent, committed an analogous error in omitting this particular procedural defense from his response.
2.
Nonetheless, although the petitioner has established cause for his default, the Court finds that he has not demonstrated prejudice.
Establishing "prejudice" to overcome a procedural default is much more rigorous for a habeas petitioner than on direct review. On an appeal of right from an adverse verdict, the prosecution must demonstrate that any constitutional infirmities in the defendant's trial were harmless beyond a reasonable doubt. See Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). On habeas review, the state need only demonstrate that the error did not have "a substantial or injurious effect or influence in determining the jury's verdict." Caldwell v. Bell, 288 F.3d 838, 842 (6th Cir. 2002) (citations omitted). However, when the Court harbors "grave doubt" as to whether the error did sufficiently impact the fairness of the petitioner's trial — that is, when the error is as likely to have affected the verdict as not — the writ of habeas corpus must be granted. O'Neal v. McAninch, 513 U.S. 432, 435 (1995). In this case, although the Court believes that the trial court erred by permitting potential profile evidence to be presented to the jury, the Court is not convinced that the evidence had a significant effect on the outcome of the case in light of the other evidence of the petitioner's guilt.
The cases cited by the petitioner suggest that the admission of drug courier profile evidence in a criminal trial for the purpose of proving that the defendant fit the profile and therefore must be guilty is per se erroneous. See United States v. Lui, 941 F.2d 844 (9th Cir. 1991) ("Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity."); United States v. Cruz, 981 F.2d 659, 663 (2d Cir. 1992) (finding that "guilt may not be inferred from the conduct of unrelated persons" and condemning the prosecution's "[i]njection of a defendant's ethnicity into a trial as evidence of criminal behavior"); United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990); United States v. Quigley, 890 F.2d 1019, 1023-24 (8th Cir. 1989). Evidence of this nature has been approved at trial in limited circumstances, such as to provide background for an investigatory stop or to impeach a defendant's assertion of poverty as proof that he was not a distributor of illegal drugs. See Lui, 941 F.2d at 847. These circumstances are not present in this case.
The courts deciding the cases cited above, all of which challenged convictions on direct review, did not conclude that such profile evidence, even when ethnicity was injected as part of the profile, required automatic reversal. Rather, the courts evaluated the offending evidence in light of the full record to determine whether it likely contributed to the conviction. In Cruz, where there was little evidence other than the testimony of an informant, and the "expert" profile evidence was used to bolster the informant's testimony, the court concluded that the evidence was prejudicial and required reversal of the conviction. 981 F.2d at 663-64. In Quigley and Lui, on the other hand, the courts found that other evidence in the record overwhelmingly established the defendants' guilt. Lui, for instance, was found in possession of "28 pounds of high-quality heroin in suitcases to which he had the keys," 941 F.2d at 848, and Quigley "had in his possession, in plain view, within an arm's reach in the car, one kilogram (2.2 lbs.) of high quality cocaine." 890 F.2d at 1024. The erroneous introduction of the profile evidence did not require reversal in those cases.
This case likewise requires the Court to examine the record, mindful that the endeavor occurs on collateral review, not on direct appeal, to evaluate the impact of the erroneously admitted profile evidence in order to determine if prejudice resulted. The defendant claimed that he had no connection to the cocaine found in the home in which he was present during the search; rather, the defendant claims to have been an innocent bystander.
The principal evidence against the petitioner came from Corey Harvey, a paid government informant. He testified that he contacted the petitioner in an attempt to purchase a kilogram of cocaine for a purchaser willing to pay $28,000. Trial Tr., 4/17/1999, at 21-22. Harvey testified that the petitioner tried one source without success, and then told Harvey that he had reached some people who were coming in from Detroit on the afternoon in question with the drugs. Id. at 23-25. The petitioner took Harvey to the house of codefendant Rosado, where the petitioner and Harvey were shown the cocaine. Id. at 31-33. The petitioner confirmed to Harvey that codefendant Raul David was the person who brought the cocaine from Detroit. Trial Tr. at 46-47.
After the search and resulting arrest, the petitioner admitted to police that David was at the scene to collect the money from the drug sale, and that the petitioner had contacted Rosado to obtain the cocaine. Trial Tr., 4/18/1999, at 12-15. Recordings from a wire worn by Harvey indicated that the petitioner brought Harvey promptly to Luis Rosado upon entering Rosado's house, where the cocaine was shown to Harvey and the petitioner. After the police raided the premises, they found over a kilogram of cocaine in the basement on top of an appliance that matched the description of the product being discussed in the recording made by Harvey. Trial Tr., 4/16/1996, at 114-24.
The "profile evidence" assailed by the petitioner was not a major piece of evidence in the case against the petitioner. There was substantial evidence in the record apart from the profile evidence which established the petitioner's guilt, such that "grave doubt" concerning the injurious impact of the profile evidence is dispelled.
The petitioner also complains that he was referred to on a few occasions as a "kilo-level" dealer or "high-level dealer" by prosecution witnesses. The petitioner also seizes on Officer Sitar's unfortunate reference to "suspicious Puerto Ricans" when explaining the need to quickly raid the residence where the cocaine was found. With the exception of Officer Sitar's remark, however, the statements characterizing the petitioner as an established drug dealer were fleeting references. They were not offered as profile evidence to verify the petitioner's guilt. Even the comment by Officer Sitar came only after defense counsel repeatedly pressed him as to why he was so concerned about the timing of the raid on the residence where the cocaine was located.
The Court finds that admission of the evidence does not establish prejudice sufficiently grave to overcome the procedural default, and thus defeat the respondent's procedural defense. 3.
A question which remains is whether this Court's refusal to consider the petitioner's claim on the merits will result in a miscarriage of justice. A prisoner may overcome a procedural default and obtain review of the merits of a claim in a habeas proceeding even in the absence of "cause and prejudice" by producing new and reliable evidence of actual innocence. Lott v. Coyle, 261 F.3d 594, 620 (6th Cir. 2001) (citing Schlup v. Delo, 513 U.S. 298, 314-15 (1995), and Herrera v. Collins, 506 U.S. 390, 417 (1993)), cert. denied, 122 S.Ct. 1106 (2002). The petitioner here has not presented the Court with any new evidence of actual innocence, although he contends that the trial evidence shows that he was merely present when the cocaine was seized and therefore the evidence is insufficient to establish guilt under state law. See People v. Burrel, 253 Mich. 321, 323, 235 N.W. 170-71 (1931). "Actual innocence," however, "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (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 (emphasis added). The petitioner has not supported his claims with new reliable evidence. The Court concludes that the "actual innocence" exception does not apply here and that the petitioner has not overcome the respondent's procedural defense.
III.
The Court concludes that the petitioner's claims are procedurally defaulted because he failed to raise them on direct appeal to the state's highest court. Although the petitioner has shown cause for the procedural default, he has not established prejudice or that he is actually innocent. Thus, the Court shall not reach the substantive merits of the petitioner's claims. However, the Court observes that a merits analysis of sorts was necessary to evaluate the prejudice component in connection with the procedural default, noted above.
Accordingly, it is ORDERED that the Magistrate Judge's recommendation is ADOPTED, albeit for different reasons than stated in the report, which is rejected.
It is further ORDERED that the petition for a writ of habeas corpus is DISMISSED with prejudice.