Opinion
Case Number 00-10079-BC.
December 31, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Currently pending before the Court is petitioner Ryan Simpson's pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. The petitioner is a state inmate currently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan. The petition alleges that Simpson's conviction was tainted by improperly admitted "similar act" evidence and prosecutorial misconduct, and that he therefore is in custody in violation of the laws and Constitution of the United States. The Court disagrees, and will deny the petition.
I.
The petitioner's conviction arises from the shooting death of Aundre Kincaid. Kincaid owned a comic book and sports card store in Grand Blanc Township, Michigan in January 1994. The petitioner worked in the store assisting Kincaid and selling his own sports cards until the fall of 1993, when he was fired because Kincaid believed the petitioner was stealing from the store.
Kincaid was fatally shot by a single gunshot wound to the head from a .22 caliber handgun on the evening of January 19, 1994, when he stepped inside his home. Kincaid's body was discovered several hours later by his grandparents who came to the house to look for him when his fiancée reported that he was hours late for a date. The front door of the house showed signs of a forced entry, comic books were missing from Kincaid's private collection, and his car was missing. Merchandise from Kincaid's store was also found to be missing. Kincaid's car was discovered parked at an apartment complex about one-half mile from Kincaid's house.
Police later searched the petitioner's home and found some comic books and sports cards which had been missing from Kincaid's collection and from the store. The police also found the following items in a garbage bag in the petitioner's garage: comic book and sports card wrappers, Kincaid's key ring and keys, a spent .22 caliber casing, live .22 caliber ammunition, and a bank bag that was the same type used by Kincaid to hold store proceeds.
The gun used to kill Kincaid was never found, but over the petitioner's objection the prosecutor introduced testimony that the petitioner had made statements implicating himself in a burglary that occurred about 10 months prior to Kincaid's murder during which a .22 caliber gun was stolen. Nathan Barton, a friend of the petitioner, testified that sometime in October or November of 1993, the petitioner called him to ask him if he wanted to break into a house that the petitioner knew had three to four thousand dollars worth of comic books and sports cards in it. Over the next couple of months, the petitioner called Barton several more times to ask him if he was interested in breaking into this person's house to get the comic books and sports cards. The petitioner suggested that they could go to the man's house when he was not home and if he came home while they were still there, they could hit him and then take him to the woods and dump him there.
Although the petitioner never mentioned Kincaid's name, after the first few phone calls during which the petitioner discussed his plan, Barton determined that the petitioner was talking about Kincaid's house.
The petitioner testified in his own defense and denied any involvement in Kincaid's death.
Following a jury trial in Genesee County Circuit Court, the petitioner was convicted of first-degree felony murder, breaking and entering an occupied dwelling, breaking and entering a commercial building, unlawfully driving away an automobile, and possession of a firearm while committing a felony. On May 19, 1994, he was sentenced to life imprisonment without parole for the first-degree felony murder conviction, ten to fifteen years imprisonment for the breaking and entering an occupied dwelling conviction, six to ten years for the breaking and entering a building conviction, forty to sixty months for the unlawfully driving away an automobile conviction, all to be served concurrently. The petitioner was also sentenced to two years imprisonment for the felony-firearm conviction, to be served prior to the other sentences.
The petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court violated MRE 404(B), MRE 403, and Mr. Simpson's due process clause right to a fair trial by admitting highly prejudicial allegations that Mr. Simpson committed another similar burglary.
A. A trial court may not admit other bad acts evidence, particularly evidence that the defendant has committed the same or similar crime for which he is on trial, unless that evidence is more probative than prejudicial.
B. Any probative value to the other bad acts evidence in this case was far outweighed by the prejudicial effect.
1. The probative value of the Lapeer Burglary was essentially zero because there was no evidence that the pistol was taken during the burglary and no evidence that the pistol was used to kill Aundre Kincaid.
2. The prejudicial effect of evidence linking Mr. Simpson to an earlier similar burglary is extremely grave.
C. The error was not harmless and requires a new trial.
II.
The prosecution violated Mr. Simpson's due process clause right to a fair trial by repeatedly asking Mr. Simpson to comment on the credibility of prosecution witnesses.
A. The prosecutor may not, as he did in this case, force the defendant to comment on the credibility of prosecution witnesses.
III.
Mr. Simpson's breaking and entering an occupied dwelling conviction must be vacated as violative of double jeopardy.
The Michigan Court of Appeals affirmed all of the petitioner's convictions, with the exception of the petitioner's conviction for breaking and entering an occupied dwelling. The Michigan Court of Appeals held that the petitioner's conviction for both felony murder and breaking and entering an occupied dwelling violated the prohibition against double jeopardy. The Court of Appeals therefore remanded the case to the lower court for the purpose of vacating the petitioner's conviction and sentence for breaking and entering an occupied dwelling. People v. Simpson, No. 175778 (Mich.Ct.App. March 14, 1997).
The petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Simpson, No. 108946 (Mich. Oct. 20, 1998).
The petitioner filed in this Court a petition for a writ of habeas corpus dated January 19, 2000, presenting the following claims:
I. The trial court violated 404(B), MRE 403, and Mr. Simpson's due process clause right to a fair trial by admitting highly prejudicial allegations that Mr. Simpson committed another similar burglary.
II. The prosecution violated Mr. Simpson's due process clause right to a fair trial by repeatedly asking Mr. Simpson to comment on the credibility of prosecution witnesses.
The respondent filed an answer addressing the merits of the petition, and also contending that the petition was filed out of time in violation of 28 U.S.C. § 2244.
II.
The petitioner's claims are subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA govern this case.
As mentioned above, the respondent argues that the petition is barred from review because it fails to comply with the one-year limitations period applicable to habeas corpus petitions. The AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramajtys, 39 F. Supp.2d 871, 873 (E.D.Mich. 1999). The one-year statute of limitations runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). If a habeas petition is filed outside the time period prescribed by this section, the petition must be dismissed. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case filed thirteen days after the limitations period expired), cert. denied, 531 U.S. 1201 (2001); Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D.Mich. 1998).
In cases where Michigan prisoners pursue all of the state appellate remedies normally available, that is, presenting their claims to the state's intermediate appellate court and supreme court, the conviction becomes "final" ninety days after the Michigan Supreme Court renders its decision denying leave to appeal on the merits, accounting for the period within which the defendant may apply to the United States Supreme Court for a writ of certiorari. If a certiorari petition is actually filed, then the conclusion of Supreme Court proceedings establishes the finality date under § 2244(d)(1). 28 U.S.C. § 2244(d)(1)(A); Sup. Ct. R. 13(1); Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986); see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
The ninety-day period during which the petitioner could petition for a writ of certiorari concluded on January 18, 1999. Supreme Court Rule 30 provides that the last day of a filing period shall be included unless it falls on a Saturday, Sunday or federal legal holiday. January 18, 1999 was the date on which Martin Luther King Day, a federal legal holiday, was observed. Therefore, the last day on which the petitioner could have filed a petition for a writ of certiorari in the United States Supreme Court was January 19, 1999.
The last day on which a petitioner can file a petition for a writ of certiorari in the United States Supreme Court is not counted toward the one-year limitations period applicable to habeas corpus petitions. Bronaugh, 235 F.3d at 284-85. Thus, the last day on which the petitioner could timely file a petition for a writ of habeas corpus in this Court was January 20, 2000. Under the "prison mailbox" rule, a habeas petition is considered filed on the day when it is presented to a prison official for mailing. See Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002). The petitioner's habeas corpus petition was signed and dated on January 19, 2000. Thus, pursuant to the prison mailbox rule, the petition was filed within the applicable one-year limitations period.
III.
The AEDPA also has altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
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). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, 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. Rather, that application must also be unreasonable.Id. at 409, 410-11. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner argues that he is entitled to habeas corpus relief because the trial court improperly admitted evidence of the petitioner's involvement in a prior burglary of Duane Rowley's residence in Lapeer County from which a .22 caliber pistol was reported missing. Shawn Brown testified that the petitioner had told him that he had committed a burglary in Lapeer County. Mr. Rowley testified that his house was burglarized in April 1993 and that sports cards from his collection were stolen. Mr. Rowley further testified that he suspected the petitioner because the petitioner had done some plumbing work at his house earlier in the year and because he knew that the petitioner collected sports cards. Mr. Rowley also testified that approximately ten months after the burglary he discovered that a .22 caliber gun was missing from his house. The petitioner claims that the admission of this evidence violated Michigan Rule of Evidence 404(b) and was so prejudicial that it rendered his trial fundamentally unfair and violated his right to due process.
It is well established that "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Louis v. Jeffers, 497 U.S. 764, 780 (1990)). The Sixth Circuit Court of Appeals has explained that "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001); see also Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994) ("Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation."). The Supreme Court has declined to hold that similar "others acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352.
Thus, even if some rule of evidence was violated, relief on collateral review will be provided "only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.'" Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
The improper admission of "other acts" evidence will occasionally justify the grant of habeas corpus relief. However, the Seventh Circuit has reasoned that "[i]f the evidence is probative, it will be very difficult to find a ground for requiring as a matter of constitutional law that it be excluded; and if it is not probative, it will be hard to show how the defendant was hurt by its admission." Watkins v. Malloy, 95 F.3d 4, 7 (7th Cir. 1996).
That court concluded that "[s]omething worse than a garden-variety violation of the standard of 404(b) must be shown to cross the constitutional threshold." Id. This Court does not necessarily agree that the task of showing nonprobative evidence to be constitutionally injurious is insurmountable. However, when the evidence has some probative value, the question of admissibility necessarily requires the familiar balancing task entrusted to trial judges under Federal Rules of Evidence 404(b) and 403, and their state counterparts. Reviewing courts, especially those conducting a review under 28 U.S.C. § 2254, are extremely deferential to such decisions. See Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996) (stating that "[q]uestions of degree — like questions about the proper use of `discretion' — lack answers to which the labels `right' and `wrong' may be attached" and that, "[w]hen the subject is painted in shades of grey, rather than in contrasting colors, a responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"), rev'd on other grounds, 521 U.S. 320 (1997). Cf. Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (finding no authority for the proposition that, when a state court abuses its discretion in denying a defendant's motion to withdraw a waiver of jury trial, the result violates the United States Constitution).
Thus, improperly admitted evidence "can render a trial fundamentally unfair only if it is not probative of any essential element in the case." Sims v. Stinson, 101 F. Supp.2d 187, 194 (S.D.N.Y. 2000); see also Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980) (finding no basis for habeas relief where the challenged evidence was "rationally connected" to the crime charged).
Here, the petitioner has failed to show that the admission of evidence that he admitted committing a burglary during which a .22 caliber gun was stolen deprived the petitioner of his fundamental right to a fair trial. The trial judge held that admission of this evidence was relevant to demonstrate opportunity, intent, preparation, scheme or plan. Reciting the litany of possible justifications for other acts evidence enumerated in Rule 404(b) is not particularly helpful from an analytical standpoint. See United States v. Merriweather, 78 F.3d 1070, 1076, 1077 (6th Cir. 1996) ("The trial court's recitation of seven of the nine purposes named in Rule 404(b) in the precise order as they appear in the text of that rule as its grounds for admitting the Jones conspiracy as `other acts evidence,' suggests strongly that the court did not have a clear idea what theory may have justified receiving the evidence."). However, it has been held that "evidence of prior possession of a weapon can be used to prove opportunity and identification even where it cannot be directly identified as the weapon used in the crime." United States v. Covelli, 738 F.2d 847, 855 (7th Cir. 1984). The stolen firearm in this case was one of four models identified by the prosecution's handgun expert as the likely murder weapon. Furthermore, cautionary instructions were given. The trial court cautioned the jury that this evidence was admitted only for the limited purpose of showing whether the petitioner had access to a .22 caliber handgun. The trial court advised the jury that it must not consider the testimony for any other purpose, such as whether it showed that the petitioner was a bad person or likely to commit crimes. The court further cautioned the jury that it must not convict the petitioner in the instant case because the jury thought he was guilty of other bad conduct. The petitioner also took the opportunity to address the prior burglary when he testified in his own defense.
Furthermore, there is considerable incriminating evidence against the petitioner which militates against the conclusion that the admission of the prior burglary evidence, even if erroneous, had a substantial and injurious effect on the jury's deliberations. The petitioner was found in possession of numerous items stolen from the decedent's store and home, including sports cards and comic books he had openly coveted, as well as the decedent's key ring.
Spent .22 casings were also retrieved by the police, and testimony at trial demonstrated that the petitioner had been openly soliciting assistance to rob the decedent for months.
Considering all of these facts, the petitioner has failed to show that admission of similar acts evidence constituted a federal constitutional violation. Accordingly, the petitioner is not entitled to habeas corpus relief with respect to this claim.
B.
The petitioner next claims that he is entitled to habeas relief because the prosecutor engaged in misconduct. Specifically, the petitioner argues that the prosecutor impermissibly asked him to comment on the credibility of other witnesses. "Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances." Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). The Court must examine "`the fairness of the trial, not the culpability of the prosecutor.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep't of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Sixth Circuit has identified the factors a court should consider in weighing the extent of prosecutorial misconduct:
In every case, we consider 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.Id. at 964 (quoting Angel, 682 F.2d at 608). The last state court to issue a reasoned opinion on the petitioner's claims of prosecutorial misconduct, the Michigan Court of Appeals, held on this issue:
Defendant contends that the prosecutor improperly asked a defendant to comment on the credibility of prosecution witnesses, as prohibited by People v. Buckey, 424 Mich. 1, 17; 378 N.W.2d 432 (1985). We disagree. Defendant's defense was that Nathan Barton, a prosecution witness, was involved in decedent's death. On direct examination, defense counsel asked defendant if he ever told anyone that he was going to rob decedent, to which defendant responded negatively. Once that door was opened, cross-examination was proper since four prosecution witnesses testified that defendant had spoken with them regarding robbing and harming or killing decedent. People v. Bettistea, 173 Mich. App. 106, 116; 434 N.W.2d 138 (1988). Further, we conclude that a timely objection and curative instruction would have cured any prejudice.People v. Simpson, slip op. at 2-3.
The petitioner has not shown that the Michigan Court of Appeals' decision was contrary to or an unreasonable application of Supreme Court precedent. Once the petitioner testified on direct examination that he never told anyone he was going to rob the victim, it was appropriate for the prosecutor to ask the petitioner to explain the contradiction between his testimony and the testimony of four prosecution witnesses. See United States v. Cole, 41 F.3d 303, 309 (7th Cir. 1994) (holding that prosecutor's cross-examination of defendant regarding veracity of prosecution witnesses was appropriate where defendant had questioned their veracity on direct examination). To the extent that it was error for the prosecutor to invite the petitioner to call the prosecution witnesses liars, such error did not render the petitioner's trial fundamentally unfair. The questions at issue constituted only a small portion of the prosecutor's cross-examination. Moreover, the questions provided the petitioner an opportunity to explain his theory of the case and the apparently contradictory testimony. The prosecutor's questions did not render the petitioner's trial fundamentally unfair, and the petitioner is not entitled to habeas corpus relief on this claim.
IV.
The state court decisions in this case were not contrary to federal law, an unreasonable application of clearly established law, or an unreasonable determination of the facts.
Accordingly, the petition for a writ of habeas corpus is DENIED.