The opinion of the court was delivered by: Thomas L. Ludington United States District Judge
Honorable Thomas L. Ludington
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Alexander L. Flie, a state prisoner presently confined at Mid-Michigan Correctional Facility in St. Louis, Michigan, has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted of possessing 225 to 649 grams of cocaine and sentenced to a mandatory term of twenty to thirty years in prison. He alleges that he is incarcerated in violation of his constitutional rights to due process and a fair trial, his right to effective assistance of trial and appellate counsel, and his Fifth Amendment right not to incriminate himself. Respondent urges the Court to deny relief on the grounds that Petitioner's claims are procedurally defaulted, not cognizable on habeas review, or without merit. For the reasons stated below, the petition will be denied.
About 1:00 a.m. on February 10, 2000, several police officers executed a search warrant at 6244 Artesian Street in Detroit, Michigan. Petitioner was present in the living room of the house. His mother, two adult brothers, and child were also present in the house. The police found cocaine, a scale, plastic bags, and identification papers for Petitioner in the basement. Petitioner was arrested at the conclusion of the search and taken to a State police post where Detective Sergeant Kenneth Rochell asked him for personal data and general information. Petitioner answered Sergeant Rochell's questions and also made a non-responsive statement that the drugs at the house were his and that his family had nothing to do with the drugs.
Petitioner was released from custody on the same day, but charged with possession with intent to deliver at least 225 grams, but less than 650 grams, of a substance containing cocaine. He moved to suppress his incriminating statement to the police, alleging that the police failed to read his constitutional rights to him before he made the statement. The trial court granted Petitioner's motion, but the prosecutor filed an interlocutory appeal, and the Michigan Court of Appeals reversed the trial court's decision. See People v. Flie, No. 232908 (Mich. Ct. App. Mar. 23, 2001). The case then proceeded to trial in Wayne County Circuit Court.
Sergeant Rochell testified at trial that several bags of suspected cocaine, a large scale, and a box of empty ziplock bags were found in the basement of Petitioner's home on February 10, 2000. Sergeant Rochell also informed the jury that Petitioner had said the drugs were his and that his family had nothing to do with the drugs.
State Trooper Terry Schimke testified that he found approximately $10,000 during the execution of the search warrant on Artesian Street. The money was stuffed in a sock behind the stairs going to the basement of the house. Trooper Schimke also testified that he was present when Sergeant Rochell questioned Petitioner at the State police post. He heard Petitioner tell Sergeant Rochell that the drugs were his and that his family had nothing to do with the drugs. Trooper Schimke also thought that Petitioner either said the money belonged to him or he asked whether the police had seized his money.
Deputy Sheriff Ronald Whited testified that Petitioner was in the upstairs living room of the house on Artesian when the police forced their way into the house on February 10, 2000. Deputy Sheriff Whited opined that the cocaine found in the house was worth over $50,000 and that a mere user would not possess such a large quantity of cocaine. He also did not believe that a mere user would possess the kind of scale found in the house.
Deputy Sheriff Whited further testified that the police located a Michigan identification card in Petitioner's name and a temporary driver's license in his name. The photo identification card had an address of 27641 Lehigh Street, Inkster, but the temporary driver's license and a Sprint telephone bill, which was found in the southwest bedroom, had Petitioner's name and the Artesian Street address on them. Plastic bags of different sizes were found in the basement, and Deputy Sheriff Whited opined that the bags were consistent with the sale of narcotics.
Forensic scientist Gary Ginther testified that one of Petitioner's fingerprints was present on a plastic bag in evidence. That bag alone contained 233 grams of cocaine.
Petitioner did not testify or present any witnesses. His defense was that the prosecution had presented the jury with a weak circumstantial case. Defense counsel argued to the jury that the prosecution had failed to prove that Petitioner actually or constructively possessed the drugs. Counsel noted that the police did not reduce Petitioner's incriminating statement to writing, the prosecution could not prove when Petitioner's fingerprint was placed on the plastic bag, and even though Petitioner's identification was found near money and drugs, the basement was not a living quarter.
On April 4, 2002, a Wayne County Circuit Court jury found Petitioner guilty of a lesser- included offense: possession of 225 to 649 grams of cocaine, Mich. Comp. Laws § 333.7403. The trial court sentenced Petitioner on May 9, 2002, to a minimum of twenty years and a maximum of thirty years in prison.
In an appeal of right, Petitioner argued that it was reversible error for the trial court to instruct the jury on possession of cocaine because the facts did not support the instruction, the instruction violated his constitutional rights to due process and notice of the charges, and he should have been acquitted of the delivery charge instead of convicted of simple possession as a compromise. He also alleged that the prosecutor (1) denigrated the defense theory and (2) made an improper civic duty argument. The Michigan Court of Appeals found no merit in the claims and affirmed Petitioner's conviction in an unpublished opinion. See People v. Flie, No. 242864, 2004 WL 595064 (Mich. Ct. App. Mar. 25, 2004).
Petitioner raised the same issues and two additional issues in the Michigan Supreme Court. The new issues alleged that Petitioner's Fifth Amendment right not to incriminate himself was violated when the police failed to read his constitutional rights to him and that he was denied effective assistance of appellate counsel during the appeal of right. On September 28, 2004, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Flie, 471 Mich. 886 (2004) (table).
Petitioner subsequently filed a motion for relief from judgment in which he alleged that: (1) the police failed to advise him of his constitutional rights before he made incriminating statements and, therefore, his statements should have been suppressed; (2) his second trial attorney failed to conduct an adequate pre-trial investigation; (3) his appellate attorney was ineffective; and (4) there was insufficient evidence to support his conviction. The trial court denied the motion, and the Michigan Court of Appeals denied leave to appeal "for failure to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Flie, No. 267672 (Mich. Ct. App. July 27, 2006). On December 28, 2006, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Flie, 477 Mich. 973 (2006) (table).
Petitioner filed his habeas corpus petition and supporting brief on January 23, 2007. The issues, as set forth in Petitioner's brief, are:
I. Was Petitioner denied a fair trial when the prosecutor denigrated defense counsel and appealed to the jury['s] civic duty?
II. Was Petitioner denied due process of law under the Federal Constitution when the trial court instructed the jury on the lesser included offense over counsel objection and the prosecutor[']s sole theory was delivery?
III. Was Petitioner denied his right under the Sixth Amendment to effective assistance of counsel when counsel failed to conduct an adequate pre-trial investigation?
IV. Was Petitioner denied his right under the Fifth Amendment to the Constitution when the police failed to advise Petitioner of his Miranda right?
V. Was Petitioner denied effective assistance of counsel on direct appeal when counsel failed to raise two of Petitioner['s] claims?
Respondent contends that portions of Petitioner's first and second claims are procedurally defaulted because Petitioner failed to object to the claimed errors at trial. Petitioner agrees with Respondent that his claim about the prosecutor's improper civic duty argument and his claim that there was no factual support for the jury instruction on the lesser-included offense are procedurally defaulted and that he has not shown "cause" for the default or resulting prejudice. Thus, those claims have been abandoned.
Respondent contends that Petitioner's third and fourth claims are procedurally defaulted because Petitioner did not raise those claims on direct review. The Court finds no merit in the claims, and procedural default is not a jurisdictional limitation. Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009) (citing Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991)), petition for cert. filed, 78 U.S.L.W. 3448 (U.S. Jan. 21, 2010) (No. 09-877). The Court therefore will ...