The opinion of the court was delivered by: Robert H. Cleland United States District Judge
OPINION AND ORDER (1) DENYING THE HABEAS CORPUS PETITION; (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; AND (3) DENYING PETITIONER'S REQUEST FOR A STAY
Petitioner Fard Rahman Graham has filed a pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's convictions for two counts of armed robbery and two counts of bank robbery. Petitioner recently filed a request for permission to stay this action so that he can return to state court and exhaust state remedies for a new claim that challenges the trial court's jurisdiction. Because Petitioner's challenge to the trial court's jurisdiction is not a basis for habeas relief and because his other claims lack merit, the petition and request for a stay will be denied.
Petitioner initially was charged in Oakland County, Michigan with two counts of armed robbery. The charges arose from two bank robberies committed in Birmingham, Michigan on successive days in December of 2004. Petitioner was bound over to circuit court on the armed robbery charges, but the prosecutor indicated at the preliminary examination that he might amend the criminal information to add two charges of bank robbery.
On or about March 16, 2005, the prosecutor moved to add two counts of bank robbery to the criminal information. The trial court held a hearing on the prosecutor's motion and granted it over defense counsel's objection. The trial commenced about a month later. The Michigan Court of Appeals summarized the trial testimony as follows:
Defendant's convictions arise from robberies at two banks in the city of Birmingham. The first robbery occurred on a rainy morning on December 7, 2004, at a Charter One Bank where Bradley Grekonich worked as a teller. According to Grekonich, a man wearing a black puffy coat and a baseball hat walked up to the counter and handed him a deposit slip that stated, "I have a gun. Give me the money or I'll kill you." Grekonich gave the man $1,700. The man walked out of the bank, leaving the deposit slip behind at the counter. Grekonich identified a man depicted in still photographs produced from the bank's video surveillance system as the robber, but failed to identify defendant in a pretrial lineup conducted by the police.
The second robbery occurred on the morning of December 8, 2004, at a Fidelity Bank where Shareen Coles worked as a teller. Coles identified defendant as the robber at trial and in a pretrial lineup. Coles testified that defendant wore a black puffy coat and a baseball cap when he entered the bank. He wrote something on a withdrawal slip and then approached the teller station next to Coles. Because that teller was busy, Coles offered to help defendant. Defendant gave Coles the withdrawal slip, which stated, "I have a gun. Give me all the money now." Coles handed cash from her drawer to defendant. She reported the robbery to bank managers after defendant departed toward a back exit. The withdrawal slip used to commit the robbery was left at the bank.
The person whom Coles identified as the robber drove off in a red Chrysler Sebring. A bank customer followed the vehicle to Webster Street and then showed Birmingham Police Officer Matthew Baldwin the driveway where the vehicle pulled in. After Officer Baldwin determined that the vehicle was inside a detached garage at 1462 Webster Street, he and other police officers secured the area around the house. The police received information that defendant was a renter at the house. Officer Baldwin made phone contact with a female occupant to request that defendant come out. After approximately five hours, defendant exited the house. Police officers subsequently executed a search warrant of the house and garage. Parked inside the garage were a red Chrysler Sebring and a dusty black Mercury Topaz. Among the items in the Mercury Topaz were a wet, black puffy coat and baseball cap. A wet handwritten note in the coat pocket stated, "I have a gun. Give me the money or I will kill you." People v. Graham, No. 263702, 2007 WL 861173 (Mich. Ct. App. Mar. 22, 2007). Petitioner did not testify or present any evidence. His defense was that the prosecution failed to prove he was the robber.
On April 14, 2005, an Oakland County Circuit Court jury found Petitioner guilty, as charged, of two counts of armed robbery, Mich. Comp. Laws § 750.529, and two counts of bank robbery, Mich. Comp. Laws § 750.531. The trial court sentenced Petitioner as a habitual offender to four concurrent terms of twenty to fifty years. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion, see Graham, 2007 WL 861173 *1, and on July 30, 2007, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Graham, 735 N.W.2d 266 (Mich. 2007) (table).
Petitioner filed his habeas corpus petition on March 14, 2008. The grounds for relief are (1) unconstitutional search and seizure, (2) vindictive prosecution, (3) inadequate notice of the prosecution's expert witness, (4) denial of substitute counsel and conflict of interest, (5) double jeopardy and insufficient evidence, (6) prosecutorial misconduct and improper guilt instruction, and (7) inaccurate information at sentencing. Because Petitioner did not file a supporting brief, the court has looked to his briefs in the Michigan Court of Appeals for a fuller understanding of his claims.
Respondent asserts in an answer to the petition that Petitioner's claims are procedurally defaulted, not cognizable on habeas review, or without merit. "[I]n the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter." Trest v. Cain, 522 U.S. 87, 89 (1997). The court therefore will address the merits of any procedurally defaulted claims.
Section 2254(d) of Title 28, United States Code, 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 proceedings.
28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of a state court's factual determinations. 28 U.S.C. § 2254(e)(1).
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. Rather, that application must also be unreasonable." Id. at 411.
A. The Fourth Amendment Claim
Petitioner's first claim alleges that items seized from the gray Mercury Topaz parked in his garage should have been suppressed because that vehicle was not listed in the search warrant or in the affidavit supporting the warrant. "[T]he Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial" if the State provided an opportunity for "full and fair litigation" of the Fourth Amendment claim. Stone v. Powell, 428 U.S. 465, 482 (1976). For a "full and fair" opportunity to have existed, the state must have provided a mechanism for raising the claim and presentation of the claim must not have been frustrated by a failure of that mechanism. Gilbert v. Parke, 763 F.2d 821, 823 (1985) (citing Riley v. Gray,674 F.2d 522, 526 (6th Cir. 1982)).
Petitioner filed a pretrial motion to suppress items found in the gray Mercury Topaz parked in his garage. On February 9, 2005, the trial court held a hearing on Petitioner's motion and determined that there was no justification for Petitioner's attack on the search warrant. The trial court denied Petitioner's motion, and the Michigan Court of Appeals thoroughly reviewed the issue during the appeal of right. The Court of Appeals determined that the police were authorized to search the vehicle in question. The Michigan Supreme Court also had an opportunity to review the issue.
Petitioner was given a full and fair opportunity to raise his Fourth Amendment claim at all levels of state court review, and presentation of the claim was not frustrated by a failure of the state mechanism. Therefore, his Fourth Amendment claim is not cognizable on habeas corpus review.
B. Vindictive Prosecution
Petitioner alleges that the prosecutor amended the criminal information without adequate notice to him. He further alleges that the amendment punished him for exercising his right to a jury trial.
The Sixth Amendment to the United States Constitution affords a defendant in a criminal prosecution the right to a jury trial and the right "to be informed of the nature and cause of the accusation." U.S. CONST. amend. VI. "[V]indictive prosecution violates due process." Moran v. Burbine, 475 U.S. 412, 466 (1986). "To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). "For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right." Id.
In Bordenkircher v. Hayes, the prosecutor threatened to charge the defendant as a habitual offender if the defendant refused to plead guilty to the original charge. The prosecutor carried out his threat when the defendant refused to plead guilty. A jury subsequently found the defendant guilty of the principal charge of uttering a forged instrument. The petitioner was sentenced as a habitual offender to life imprisonment. The Supreme Court held that the prosecutor's conduct, "which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment." Bordenkircher v. Hayes, 434 U.S. at 365.
The prosecutor's conduct in this case was similar to the prosecutor's conduct in Bordenkircher only on the surface. At the preliminary examination on January 13, 2005, the prosecutor stated that he and defense counsel had discussed the possibility that the prosecutor would amend the criminal information to add bank robbery charges. There was, however, no indication of a prosecution offer to refrain from filing the additional charges if a guilty plea were accepted. Defense counsel acknowledged having discussed the matter with the prosecutor, stating that they could address any amendment after the case reached the circuit court. (Tr. Jan. 13, 2005, at 42-43.)
On March 16, 2005, the prosecutor moved to amend the criminal information to add two counts of bank robbery. Defense counsel objected to the amendment at a hearing held on March 29, 2005, and Petitioner stated at the hearing that he had no intention of pleading guilty. The trial court granted the prosecutor's motion, and Petitioner proceeded to trial two weeks later on two counts of bank robbery and two counts of armed robbery. Following his conviction on all four counts, the Michigan Court of Appeals held that Petitioner did not establish plain error in connection with his claims of prosecutorial vindictiveness and lack of notice of the amended charges.
Petitioner was given three months' notice of the possibility that the prosecutor would amend the information, and the additional charges arose out of the same two incidents that led to the original charges.*fn1 The court finds that ...