Opinion
Case No. 00-CV-71894-DT
March 8, 2001
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Cortez Scott ("Petitioner"), a state prisoner currently confined at the Harrison Correctional Facility in Adrian, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first-degree murder and felony firearm following a jury trial in the Genesee County Circuit Court in 1994. He was sentenced to life imprisonment without parole on the murder conviction and a consecutive term of two years imprisonment on the firearm conviction.
Petitioner challenges the constitutionality of his state court proceedings, raising claims concerning the sufficiency of the evidence, prosecutorial misconduct, the failure to transcribe part of the prosecutor's closing argument, the failure to instruct the jury on involuntary manslaughter, the effectiveness of trial counsel, and cumulative error. For the reasons stated below, Petitioner s request for habeas relief is denied and the petition for a writ of habeas corpus is dismissed.
I. Factual Background
Petitioner's convictions stem from the shooting death of Tyrone Williams on February 16, 1994 in Flint, Michigan. The Michigan Court of Appeals described the salient facts as follows:
The record reveals that on the evening of February 16, 1994, defendant shot and killed twenty-one-year-old Tyrone Williams while they and James Crain were driving in Williams' Pontiac Grand Am in Flint. Crain testified that before the shooting he overheard the defendant say that he could rob Williams. Without warning, defendant, who was riding in the back of the car, pulled out a gun and shot Williams in the head. After defendant climbed from the back of the vehicle to the driver's seat, Crain jumped out and defendant sped away. Within an hour, Crain called 911 from a relative's house and told the operator what had happened. Crain indicated that on a previous occasion, defendant shot in Williams' direction after an argument over stereo speakers.
Flint Detective Sergeant Thomas Korabik testified that while conducting an interview at the police station that evening, defendant stated that he and Williams had problems in the past and referred to the incident regarding the stereo speakers. Defendant further stated that while riding in the Grand Am, he began thinking of the previous problems between the two, pulled out the gun, pointed it in the air, and said to Williams, "What's up now?" Defendant then lowered the gun and shot Williams in the head. Defendant explained that after Crain jumped out of the car, he continued to drive and threw the gun out of the car five houses down the road. Furthermore, defendant indicated that he had the gun in his right pants pocket before Williams picked him up that evening. Williams was found at a nearby school with gunshot wounds to the head and stomach. Blood and brain matter were discovered in the Grand Am.People v. Scott, No. 182235, *2 (Mich.Ct.App. Jan. 21, 1997) (unpublished) (footnotes supplied).
Crain testified that they purchased beer at a drive-up party store, drove around drinking the beer and smoking a marijuana cigar, and made brief stops at two girlfriends' homes before the shooting occurred.
In making his police statement, Petitioner also told Detective Korabik that he pulled the trigger of the gun when Williams grabbed his hand.
At the close of trial, the jury found Petitioner guilty of first-degree murder and felony firearm. The trial court subsequently sentenced him to the mandatory terms of life imprisonment without parole plus two years imprisonment.
II. Procedural History
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, raising the following claims through counsel and in pro per:
I. There was insufficient evidence to convict him of first-degree murder.
II. The prosecutor's argument shifted the burden of proof which constitutes prosecutor misconduct and reversible error.
III. He was denied due process of law where the record fails to include the entire portion of the prosecutor's final argument.
IV. The jury instructions were reversibly erroneous because the court did not distinguish between voluntary and involuntary manslaughter despite his assertion of an accident defense.
V. He was deprived of his constitutional right of effective assistance of trial counsel.
VI. The cumulative effect of the errors justify reversal for a new trial.
The Court of Appeals affirmed Petitioner's convictions and sentence. People v. Scott, No. 182235 (Mich.Ct.App. Jan. 21, 1997) (unpublished). Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court raising the same issues. In lieu of granting leave to appeal, the Michigan Supreme Court vacated the portion of the Court of Appeals' opinion which addressed the transcript issue and remanded for further proceedings. In all other respects, leave to appeal was denied. People v. Scott, 456 Mich. 931, 575 N.W.2d 549 (Feb. 3, 1998).
On remand, the trial court conducted a hearing concerning the prosecutor's closing argument. Reviewing that evidence as well as the record on appeal, the Michigan Court of Appeals found that there was no indication of prosecutorial misconduct during closing arguments and again affirmed Petitioner's convictions and sentence. People v. Scott (on remand), No. 182235 (Mich.Ct.App. Aug. 18, 1998) (unpublished). Petitioner then filed another delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Scott, 459 Mich. 982, 593 N.W.2d 554 (April 27, 1999).
Petitioner, through counsel, filed the present habeas petition on April 25, 2000, raising the same claims presented to the Michigan appellate courts. Respondent filed an answer to the petition on September 11, 2000, asserting that Petitioner's claims should be denied based upon procedural default and/or for lack of merit.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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) (1996).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, 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. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court must look to pertinent United States Supreme Court precedent.
Lastly, this Court must presume that state court factual determinations are correct. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis
A. Insufficient Evidence Claim
Petitioner first claims that he is entitled to habeas relief because there was insufficient evidence presented at trial to convict him of first-degree murder. Specifically, Petitioner claims that the prosecution failed to establish that he acted with intent to kill and premeditation and deliberation.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established that a federal court's review of a sufficiency of the evidence claim must focus on whether "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." Id. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, Huynh v. King, 95 F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995), this Court must determine whether the state court's application of the Jackson standard was reasonable.
Under Michigan law, first-degree premeditated murder requires proof that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a second look. Id. Premeditation and deliberation may be established by evidence of "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." Id. Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).
In concluding that sufficient evidence was presented to support Petitioner's conviction, the Michigan Court of Appeals stated:
We find that there was sufficient evidence presented of premeditation and deliberation. Defendant told an investigating officer that he placed the gun in his pocket before the victim picked him up that evening, and he confessed to pulling the trigger and shooting Williams. Defendant also admitted to pointing the gun in the air before shooting Williams. Furthermore, Crain testified that defendant and Williams had previously disputed over stereo speakers, and defendant admitted that he harbored ill feelings against Williams. Defendant also shot Williams a second time in the stomach after driving the car from the scene of the first gunshot. A reasonable inference may be drawn from this evidence that defendant planned to shoot Williams before defendant entered the car and that he had an opportunity to "take a second look" before shooting. A reasonable inference also may be drawn from this evidence that defendant deliberately intended to kill Williams. When viewed in a light most favorable to the prosecution, we find ample evidence that the elements of premeditation and deliberation were proven beyond a reasonable doubt.People v. Scott, No. 182235, *2 (Mich.Ct.App. Jan. 21, 1997).
Having carefully reviewed the record, this Court cannot conclude that the Michigan Court of Appeals' determination that the facts demonstrated Petitioner's intent to kill and premeditation and deliberation is unreasonable. The testimony presented at trial revealed that Petitioner armed himself prior to meeting with Williams and Crain, that he spoke of robbing Williams, that he and Williams had past disagreements, that he pointed his weapon at Williams, pulled the trigger, and shot Williams in the head, and that he shot Williams a second time in the stomach after leaving the scene of the first shooting. See Trial Tr., vol. II, pp. 71, 104-08, 136, 181-85. Given this evidence, a rational trier of fact could find that the prosecution established beyond a reasonable doubt that Petitioner acted with intent to kill, as well as premeditation and deliberation.
Petitioner's insufficient evidence claim essentially challenges the inferences that the jury drew from the testimony presented at trial and challenges the weight to be accorded certain pieces of evidence. However, it is well-settled that "[a] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). Given the evidence presented at trial, including Petitioner's own statement, this Court finds that a rational trier of fact could have found that Petitioner acted with the intent to kill and premeditation and deliberation so as to support his first-degree murder conviction beyond a reasonable doubt. Petitioner is therefore not entitled to relief on this claim.
B. Prosecutorial Misconduct Claim
Petitioner also contends that he is entitled to habeas relief because the prosecutor engaged in misconduct by shifting the burden of proof to the defense. Specifically, Petitioner objects to the prosecutor's argument that "there's no evidence of heat of the moment, heat of passion, of some sudden unexplainable impulse." See Trial Tr., vol. II, p. 212. Respondent asserts that this claim is barred by procedural default and otherwise lacks merit. This Court agrees.
Federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). In Wainwright, the United States Supreme Court explained that a petitioner's procedural default in the state courts will preclude federal habeas review if the last state court rendering a judgment in the case rested its judgment on the procedural default. 433 U.S. at 85. In such a case, a federal court must determine not only whether a petitioner has failed to comply with state procedures, but also whether the state court relied on the procedural default or, alternatively, chose to waive the procedural bar. "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion. In dismissing Petitioner's claim, the Court of Appeals relied upon a state procedural bar, explaining:
Because defendant did not object at trial to any of the prosecutor's remarks, we will consider this issue only to redress a miscarriage of justice or if a cautionary instruction could not have cured the error. . . . The record reveals that the prosecutor merely argued that defendant intended to kill in a cold-blooded, premeditated, and deliberate manner. Such an argument amounts to nothing more than discrediting the defense, which is proper. . . . Moreover, the trial court's instruction regarding the burden of proof cured any possible prejudicial effect from the prosecutor's closing argument.People v. Scott, No. 182235, *3 (Mich.Ct.App. Jan. 21, 1997); see also People v. Scott (on remand), No. 182235, *3, n. 1 (Mich.Ct.App. Aug. 18, 1998).
The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). The Court of Appeals dismissed Petitioner's prosecutorial misconduct claim based upon procedural default — his failure to object at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).
Petitioner neither alleges nor establishes cause to excuse his procedural default. Rather, he claims that because part of the prosecutor's closing argument was not transcribed, it is unknown whether an objection was made. At the evidentiary hearing before the trial court, however, the prosecutor testified that the defense did not object to his closing argument. Defense counsel did not refute this testimony. See 3/30/98 Hrg. Tr., p. 12. Petitioner also appears to have acknowledged on direct appeal that no objection was made. See Appellant's Brief on Appeal, p. 12.
Additionally, Petitioner cannot demonstrate actual prejudice, or that a fundamental miscarriage of justice has occurred. The United States Supreme Court has stated that prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a prosecutorial misconduct claim, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Factors to be considered in weighing the extent of a prosecutor's misconduct are:
the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of a fair trial, prosecutorial misconduct must be `so pronounced and persistent that it permeates the entire atmosphere of the trial,' or `so gross as probably to prejudice the defendant.'" Id. (citations omitted). Even assuming that the prosecution erred in this case, such conduct was not so pronounced or persistent as to deprive Petitioner of a fair trial. Moreover, the trial court instructed the jurors on the burden of proof, see Trial Tr. vol. II, pp. 215, 221-24; vol. III, pp. 4-6, and informed them that if one of the lawyers said something differently, they were to follow the judge's instructions. See Trial Tr., vol. II, p. 214. Petitioner has thus failed to establish that the alleged prosecutorial misconduct deprived him of a fair trial and is not entitled to relief on this claim.
C. Transcription Error Claim
Petitioner next claims that he is entitled to habeas relief because a portion of the prosecutor's closing argument was not transcribed due to error. Due process requires that a defendant in a criminal case be provided with a transcript of a prior proceeding when that transcript is needed for an effective defense or appeal. See, e.g., Britt v. North Carolina, 404 U.S. 226, 227 (1971). However, a state prisoner seeking federal habeas must demonstrate prejudice due to a missing transcript before a constitutional violation of a right to a fair appeal will be found. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986); accord White v. Florida, 939 F.2d 912, 914 (11th Cir. 1991); Mitchell v. Wyrick, 698 F.2d 940, 941-42 (8th Cir. 1983).
On remand in this case, the trial court conducted an evidentiary hearing on the missing portions of the prosecution's closing argument. The Michigan Court of Appeals described those proceedings as follows:
A hearing was held on April 27, 1998 in the lower court and testimony was taken from the original trial prosecutor and defendant's original trial counsel. On May 4, 1998, the trial court order was filed indicating that the prosecutor "stated on the record the closing argument that he presented to the jury during the trial."
* * *
The prosecutor testified at the evidentiary hearing that he prepared a summary of his closing argument, and he relied on those notes in reconstructing the record. The prosecutor also reviewed the trial transcripts. Defense counsel objected to the use of the prosecutor's notes in reconstructing the record because the notes did not have a case caption, were not dated, and were not signed. The trial court, however, overruled the objection because the prosecutor testified that the notes were in his handwriting and were created the day before or the day of the actual closing argument. Further, the notes had always been maintained the prosecutor's office in the file he had entitled "People v. Cortez Scott."People v. Scott (on remand), No. 182235, *2 (Mich.Ct.App. Aug. 18, 1998).
Although the Court of Appeals found that the trial transcript omits approximately 18 minutes of the prosecutor's closing argument, it concluded that Petitioner was not denied a fair trial or appeal, stating:
We have carefully reviewed the prosecutor's reconstruction of his closing argument and find that there is no indication that any prosecutorial misconduct occurred during closing argument at trial. The United States Supreme Court has held that there is a presumption of regularity, indicating that the trial court constitutionally, rather than unconstitutionally, discharged its state and federal duties. Bute v. Illinois, 333 U.S. 640; 68 S.Ct. 763, 92 L Ed 987 (1947). Doubts are to be resolved in favor of the integrity, competence, and proper performance by the trial court and state's attorney of their official duties. Id. . . .
In this case, the reconstruction of the prosecutor's closing argument coupled with the presumption of regularity, shows that the prosecutor's closing argument at trial was proper and that defendant was not denied a fair trial.Id. at *2-3.
This Court finds that the Michigan Court of Appeals' decision in this regard is consistent with United States Supreme Court precedent and constitutes a reasonable application of federal law. Petitioner neither alleges nor establishes prejudice arising from the trial court's inadvertent failure to fully transcribe the prosecutor's closing argument. Petitioner has not shown, nor is there any indication in the record, that a transcript of the prosecutor's entire closing argument was necessary for Petitioner to appeal his convictions. The closing argument was not relevant to most of Petitioner's claims. Further, having reviewed the evidentiary hearing transcripts, this Court agrees with the Michigan Court of Appeals that there is no evidence that prosecutorial misconduct occurred during closing arguments at trial. Accordingly, the failure to fully transcribe that argument cannot be said to have prejudiced Petitioner. See Norris v. Schotten, 146 F.3d 314, 332-33 (6th Cir. 1998). Mere speculation that the transcribed testimony was necessary for a fair appeal precludes a finding of a constitutional violation by this Court. See Bransford, 806 F.2d at 86. Petitioner is not entitled to habeas relief on this due process claim.
D. Jury Instruction Claim
Petitioner also claims that he is entitled to habeas relief because the trial court failed to instruct the jury on involuntary manslaughter. Respondent asserts that this claim is barred by procedural default. As noted, the failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Coleman, 501 U.S. at 750-51. The Michigan Court of Appeals dismissed Petitioner's jury instruction claim based upon procedural default — his failure to request the instruction at trial.
Even assuming that Petitioner can establish cause to excuse his default, he cannot demonstrate actual prejudice, or that a fundamental miscarriage of justice has occurred. Under Michigan law, a defendant may request and receive instructions on necessarily included lesser offenses without regard to the evidence, and on cognate lesser included offenses if the evidence would support a conviction on the lesser included offense. See People v. Beach, 429 Mich. 450, 462, 418 N.W.2d 861, 866 (1988). Both voluntary and involuntary manslaughter are cognate lesser included offenses of murder. See People v. Pouncey, 437 Mich. 382, 388, 471 N.W.2d 346 (1991). The trial court is required to give an instruction for a cognate lesser included offense if: (1) the principal offense and the lesser offense are of the same class or category, and (2) the evidence adduced at trial would support a conviction of the lesser offense. See People v. Hendricks, 446 Mich. 435, 444, 521 N.W.2d 546 (1994). There must be more than a modicum of evidence; there must be sufficient evidence that the defendant could be convicted of the lesser offense. Pouncey, 437 Mich. at 387. Thus, as a matter of state law, the trial court was not required to give an involuntary manslaughter instruction absent a defense request and sufficient evidence to support such a conviction.
Moreover, even assuming that the trial court erred as a matter of state law, Petitioner is not entitled to relief from this Court. A question concerning a perceived error of state law rarely serves as a basis for federal habeas corpus relief; and does so only when the petitioner is denied fundamental unfairness. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state court determinations on state law questions"). In Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990), the United States Court of Appeals for the Sixth Circuit ruled that a state court's failure to instruct the jury on a lesser included offense in a noncapital criminal case is not such a "fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." Lastly, as noted by the Michigan Court of Appeals with respect to Petitioner's ineffective assistance of counsel claim, the physical and testimonial evidence did not reasonably support an involuntary manslaughter instruction. Given the evidence presented at trial, including James Crain's and Detective Korabik's testimony, there was sufficient evidence for the jury to find Petitioner guilty of first-degree murder. Petitioner's jury instruction claim is thus barred by procedural default, lacks merit, and does not warrant relief.
E. Ineffective Assistance of Counsel Claim
Petitioner next claims that trial counsel was ineffective for failing to seek instructions on involuntary manslaughter, accident, and careless, reckless, or negligent use of a firearm resulting in death, and for eliciting prejudicial testimony from James Crain regarding prior disputes between Petitioner and Williams.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the United States Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
1. Failure to Request Jury Instructions
The Michigan Court of Appeals concluded that counsel was not deficient for failing to request the lesser offense instructions because the evidence did not support such instructions. The court stated:
It was essentially defendant's theory that he did not have the specific intent to commit first-degree murder because he was intoxicated or high at the time of the shooting and that Williams was shot as the result of a struggle over the gun. Defendant gave two versions of what happened in the car to the police. His second version was that he pulled the gun out from his pocket, held the gun in the air, and asked Williams "what was up" between them. Defendant then claimed that Williams grabbed his hand, defendant squeezed the trigger, and the gun went off. This was directly contrary to defendant's first police statement where defendant stated that he pulled the gun out of his pocket, held it up in the air, said to Williams, "What's up now?" and lowered the gun and shot Williams.
Defendant's contention that the shooting was accidental is totally contrary to the evidence presented. Williams was shot in the right side of his head, about two inches above the right ear and directly behind the temple. After Williams was shot in the head, defendant dumped his body outside of the car and shot him again in the right abdominal area. We note that Williams was sitting in the front driver's seat and defendant was in the back seat of the car. Yet, Williams was shot in the right side of the head, while a claim that Williams grabbed defendant's hand would certainly tend to indicate that Williams would have turned around and faced defendant. The physical evidence of the gunshot would simply does not support this. Moreover, although defendant did make one claim that Williams grabbed his hand, his statement was that he (defendant) squeezed the trigger and there was no claim in the statement that Williams caused defendant to squeeze the trigger.
Defense counsel in this case was faced with a choice between defenses (intoxication, the shooting was provoked, and accident) with very significant evidentiary problems. One of defendant's own police statements, as well as the physical evidence, and the testimony of James Crain, all supported a first-degree murder conviction. Defense counsel sought out the two defenses, intoxication and provocation, that had the greatest likelihood of success in considering the evidence presented. "Nothing in the materials before us suggests that counsel was `deficient' in making this choice or that the selection significantly affected the outcome of the trial." . . .
Therefore, we conclude that defense counsel was not ineffective for failing to request instructions on involuntary manslaughter, accident, or careless, reckless or negligent use of a firearm with death resulting. The evidence at trial did not support such instructions.People v. Scott, No. 182235, *3-4 (Mich.Ct.App. Jan. 21, 1997) (citation omitted).
Having reviewed the record, this Court concludes that the Michigan Court of Appeals' decision in this regard is neither contrary to Strickland nor an unreasonable application of federal law. Trial counsel's decision to rely upon the argument that Petitioner was guilty of second-degree murder or voluntary manslaughter due to his intoxication and/or provocation was a matter of trial strategy which will not be second-guessed upon habeas review. See, e.g., Shaba v. United States, 721 F. Supp. 132, 139 (1989), aff'd. 896 F.2d 554 (6th Cir. 1990) (decision to pursue mistaken identity defense, rather than attack government's failure to exercise control over informant, was matter of trial strategy and did not support ineffective assistance claim); Johnson v. Morris, 848 F.2d 191, 1988 WL 50639, *1 (6th Cir. 1988) (counsel not ineffective for failing to argue that petitioner was guilty of aggravated assault given primary defense that gun accidentally discharged during struggle because such an argument would have compromised strategy for absolution of all guilt). Petitioner's disagreement with counsel's trial strategy does not support an ineffective assistance of counsel claim. See Strickland, 466 U.S. at 689. Petitioner has not shown that counsel was ineffective for failing to make arguments or seek jury instructions which did not comport with the physical evidence, and much of the testimonial evidence, presented at trial. Petitioner is not entitled to habeas relief on this claim.
2. Cross-Examination of James Crain
In response to defense questioning, James Crain, testified that Petitioner and Williams had a disagreement over stereo speakers four months prior to the fatal shooting and that Petitioner shot in Williams' direction during that dispute. See Trial Tr., vol. II, p. 136. The Michigan Court of Appeals concluded that counsel's cross-examination of Crain did not prejudice Petitioner, stating:
Although counsel's questioning of Crain in this regard was not wise, in the context of Crain's testimony, it was not prejudicial to defendant. On direct examination, Crain had testified that defendant told him shortly before the shooting that he could rob Williams for his goods. Moreover, the prosecutor had already elicited testimony from the police officer who took defendant's statement that defendant had told police about the incident regarding the stereo speakers. Thus, Crain's testimony was merely cumulative. Defendant has failed to show that there is a reasonable probability that, but for counsel's cross-examination in this regard, the result of the proceeding would have been different. . . . There was ample evidence shown by the prosecutor that defendant was guilty of first-degree murder.Id. at 5-6 (citation omitted).
Having reviewed the record, this Court concludes that the Michigan Court of Appeals' decision is neither contrary to Strickland nor an unreasonable application of federal law. As noted by the Michigan Court of Appeals, Detective Korabik testified about previous disputes between Petitioner and Williams, such that Crain's testimony was somewhat cumulative. More importantly, however, Petitioner cannot establish that he was prejudiced by counsel's conduct given the evidence establishing his guilt of first-degree murder. Petitioner is not entitled to habeas relief on his ineffective assistance of counsel claims.
F. Cumulative Error Claim
Given this Court's determination that Petitioner's constitutional fights were not violated during trial and that none of Petitioner's individual claims warrant habeas relief, the Court finds that Petitioner's claim that the cumulative effect of the alleged errors violated his due process rights is without merit. Petitioner is not entitled to habeas relief on this claim.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claims presented. Accordingly,
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.