The opinion of the court was delivered by: Honorable Arthur J. Tarnow
Magistrate Judge Mona K. Majzoub
OPINION AND ORDER DENYING HABEAS PETITION, AND DENYING A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Terrel J. Tate, ("Petitioner"), presently confined at Oaks Correctional Facility in Manistee, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he challenges his conviction for possession with intent to deliver 50 - 224 grams of cocaine, M.C.L.A. §333.7401(2)(a)(3); and possession of marijuana, M.C.L.A. 333.7403(2)(d). He was sentenced to 10 - 20 years on the cocaine possession conviction and 20 days on the marijuana conviction. Petitioner contends that the prosecutor violated his constitutional rights by eliciting evidence of Petitioner's post-Miranda*fn1 silence and his request for an attorney during his custodial interrogation. Petitioner further claims that his trial counsel was ineffective because he opened the door to the inadmissible evidence elicited by the prosecution due to statements defense counsel made during his opening argument. For the reasons that follow, the petition is denied.
Petitioner's conviction arises from an observation by law enforcement officials of Petitioner standing in front of a brown truck at 2:40 am on January 5, 2003 on Westmoreland street in Genesee County. Petitioner was reported as looking suspicious. The police officers shined their headlights on him and noticed a brown paper bag in his pocket. The police ordered Petitioner to raise his hands and when he refused, the officers drew their weapons and again ordered Petitioner to show his hands. Petitioner complied with their directive and when he did so, the brown paper bag fell from his pocket. The bag contained 121.4 grams of white powder, which was later tested and found to be cocaine. Also in the bag were two digital scales. Upon securing Petitioner and subjecting him to a pat-down search, a box of baking soda fell from his jacket and he also had a small bag of marijuana on his person.
Petitioner challenged his conviction in state court based upon the issues raised in his habeas petition.*fn2 Respondent filed an answer on the merits asserting that habeas relief is not warranted.*fn3 After filing his habeas petition, Petitioner completed his sentence and was discharged from the Michigan correctional system on August 19, 2009.*fn4
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.
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case."
Id. at 409. 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." Id. at 410-11.
Petitioner contends that the prosecutor violated his constitutional rights by eliciting evidence from Sergeant Shawn Ellis about Petitioner's post-Miranda silence and his request for an attorney. During defense counsel's opening statement at trial, he said the following:
And in our case the non-evidence is just as important as the alleged evidence. No fingerprints on any of the items; not on any of the evidence. You're gonna see the scales; lots of flat edges. You're gonna hear testimony how when Terrel Tate was arrested he's reaching in with his hand to hide a bag allegedly with no gloves on, but no prints come off the bag, no prints on the two scales. With all this cocaine residue on 'em, no prints can be lifted from those flat-edged scales. No residue on the box -- or no fingerprints on the box of baking soda. Again, a flat-edge box of baking soda. And no fingerprints on any of the packaging material that packaged this huge amount of cocaine.
No large amount of cash found on the defendant. You're gonna hear an omission about cash, but the one thing that they're gonna testify to, no large amounts of money, all indicative of a huge drug dealer. Again, here's a guy with $15,000.00 worth of possible cocaine and he doesn't have any money on him. He doesn't have any money on him. He doesn't have any pager, no cellphones, no guns. All the indications of a huge drug dealer; gotta keep in contact with your suppliers. Where's your cellphone? Where's your pager? Where's your money? There isn't any. Again, no Intel, no reputation. FANG'S not gonna bring an officer up here to say, "We've been investigatin' Terrel Tate for years and he's one of the biggest narcotic dealers in the Flint area." Not gonna hear anything like that.
No statements of guilt by the defendant. All he ever said was, "Give me an attorney. I didn't do this. Give me an attorney. I didn't do this."
Tr. Vol. I, 6/24/03, pp. 108-110.
After defense counsel's opening statement and prior to the prosecutor calling her first witness, the prosecutor ...