The opinion of the court was delivered by: Hon. Robert Holmes Bell
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
On August 13, 2009, Magistrate Judge Ellen S. Carmody issued a Report and Recommendation ("R&R") recommending that Petitioner Edward Michael Shaieb's § 2254 petition for writ of habeas corpus be denied. (Dkt. No. 51.) Petitioner, appearing through counsel, filed objections to the R&R on August 27, 2009. (Dkt. No. 52.)
This Court is required to make a de novo review upon the record of those portions of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Although the Magistrate Judge's R&R is reviewed de novo, this Court must review the state court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
Petitioner objects to the Magistrate Judge's decision to recommend denial of his habeas petition without first holding an evidentiary hearing. Petitioner asserts that the attorneys who represented him at trial and on appeal are willing to testify regarding the state of Michigan procedural law at the time of their representation, and to testify as to how their collective mistakes prejudiced Petitioner.
Petitioner has not established a cognizable basis for an evidentiary hearing. See 28 U.S.C. §§ 2254(e), 2244(c). Petitioner seeks to offer testimony on issues of law rather than on material or controlling issues of fact. The Court can address these issues of law without an evidentiary hearing.
The Magistrate Judge determined that the prosecutor's reference to Petitioner's post-Miranda silence did not constitute a due process violation under Doyle v. Ohio, 426 U.S. 610 (1976), because the trial court followed the due process safeguards approved in Greer v. Miller, 483 U.S. 756, 763 (1987), and, in the alternative, even if a Doyle violation occurred, the error was harmless because there was no reasonable probability that it influenced the jury's decision. (R&R at 42-47.) Petitioner has raised several objections to the R&R's analysis of the prosecutor's use at trial of Petitioner's post-Miranda silence. First, Petitioner objects to the R&R's failure to consider the Michigan Supreme Court's recent decision in People v. Shafier, 768 N.W.2d 305 (Mich. 2009). In Shafier, the Michigan Supreme Court held that the prosecutor's repeated references to the defendant's post-arrest, post-Miranda silence, and his express request for the jury to infer guilt from that silence, violated the defendant's constitutional right to due process and constituted plain error. Id. at 313. Petitioner contends that he would have prevailed on his appeal in state court had his case been reviewed after the Michigan Supreme Court's clarification of Michigan law in Shafier.
Petitioner's reliance on Shafier is misplaced. In deciding whether a state court decision is contrary to, or an unreasonable application of, clearly established federal law, this Court is limited to an examination of the holdings of the United States Supreme Court as they existed at the time of the relevant state court decision. 28 U.S.C. § 2254(d); Mitzel v. Tate, 267 F.3d 524, 530 -31 (6th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). How the Michigan Supreme Court might decide Petitioner's case today is not a relevant consideration for purposes of habeas review.
Petitioner also objects to the post-Miranda silence analysis because he contends that his case is distinguishable from Greer based on the pervasive references to his silence, the lack of an immediate objection, the lack of an immediate curative instruction, and the generic nature of the single curative instruction. Contrary to Petitioner's argument, the references to Petitioner's post-Miranda silence were not pervasive. Here, as in Greer, defense counsel immediately objected to the reference to Petitioner's post-Miranda silence, the court sustained the objection, and no further statements were made regarding Petitioner's silence. Moreover, contrary to Petitioner's argument, the curative instruction was not generic. It was tailored to the specific statements made by the prosecutor, and went beyond what was necessary to cure the prosecutor's improper reference to Petitioner's post-Miranda silence. Upon de novo review of the record and the arguments, the Court concludes that the Magistrate Judge properly found that there was no due process violation related to Petitioner's post-Miranda silence.
Petitioner objects to the R&R's analysis regarding the prosecutor's use of Petitioner's pre-arrest, pre-Miranda silence because it ignores the Sixth Circuit's opinion in Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007), which held that "'the use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination.'" Id. at 758 (quoting Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000)).
Petitioner's citation to Sixth Circuit case law is not responsive to the R&R's finding that "'[t]he constitutionality of using a defendant's pre-Miranda silence as substantive evidence of guilt [has] not been addressed by the Supreme Court.'" Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009) (quoting Jones v. Trombley, 307 F. App'x 931, 933 (6th Cir. 2009) (unpublished)). The Court agrees with the R&R that, in the absence of clearly established federal law as determined by the United States Supreme Court, the use of pre-arrest, pre-Miranda silence cannot be the basis for habeas relief. 28 U.S.C. § 2254(d)(1).
Petitioner objects to the R&R's conclusion that the state court's determination that the prosecutor did not comment on Petitioner's failure to testify at trial was not based on an unreasonable determination of the facts. Petitioner contends that the R&R's reference to state court findings was erroneous because the trial court made no ruling on the meaning of the prosecutor's "two and a half years pending" language, and the court of appeals merely addressed this language in dicta.
The record makes abundantly clear that despite the lack of a ruling, the trial court understood the prosecutor's language to be directed at Petitioner's pre-arrest silence rather than at his failure to testify at trial. Moreover, contrary to Petitioner's argument, the court of appeals did not merely mention the "two and a half years pending" language in dicta. The court of appeals held that "the prosecutor referenced [Petitioner's] silence extending from the time Detective Deprez left his home until the time of trial." (MCOA Op. at 4, Dkt. #40.) The footnote that immediately follows this statement clarifies the basis for this finding: "Because the prosecutor referred to [Petitioner's] failure to 'come into the police station and [meet] with the detective,' it is evident that the prosecutor's reference to the 'two and a half years that the case has been pending' did not include [Petitioner's ] decision to stand mute at trial." Id. The Court agrees with the R&R that the court of appeal's factual finding is entitled to deference.
Petitioner objects to R&R's analysis regarding the sufficiency of the evidence. Petitioner contends that because the victim alleged that the incident occurred during a remodeling project, and because the evidence showed that the remodeling project occurred when the victim was thirteen years old, the evidence was insufficient to support Petitioner's conviction for first-degree criminal sexual conduct. Petitioner oversimplifies the evidence relating to the victim's age. There was conflicting evidence as to when the remodeling took place and whether Petitioner was in the home during the remodeling. The R&R properly determined that questions of witness credibility were for the jury, and that there was sufficient evidence on the record from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Finally, Petitioner objects to the R&R's determination that his ineffective assistance of counsel claims should be denied for lack of prejudice. Because the Court agrees with the R&R's disposition of the merits of his underlying constitutional claims, the Court also agrees with its determination that ...