The opinion of the court was delivered by: Honorable Lawrence P. Zatkoff
OPINION & ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner, Donald Lee Fike, is a state inmate currently incarcerated at Gus Harrison Correctional Facility in Adrian, Michigan. Petitioner was convicted at the conclusion of a Lapeer County Circuit Court jury trial of one count of first-degree criminal sexual conduct, Mich. Comp. Laws §750.520b(1)(a); and two counts of second-degree criminal sexual conduct, Mich. Comp. Laws §750.520c(1)(a). Petitioner was sentenced to concurrent prison terms of ten to twenty years for the first-degree criminal sexual conduct conviction and five to fifteen years for the second-degree criminal sexual conduct conviction. Petitioner has filed a petition for writ of habeas corpus through counsel under 28 U.S.C. §2254. For the reasons that follow, the Court will deny the petition.
The Michigan Supreme Court in this case set forth underlying facts, which are presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp.2d 753, 758 (E.D. Mich. 2001), aff'd. 41 Fed. App'x. 730 (6th Cir. 2002), as follows:
This case arose when the complaining witness, defendant's step-granddaughter, was observed while asleep engaging in what the observing adult believed was suspicious behavior*fn1. The complaining witness was about one month away from her eighth birthday. The adult reported the incident to child protective services, which initiated an investigation. The complaining witness was interviewed at a facility called CARE House, and she was given a physical examination. On the basis of the interviews and examination, defendant was arrested and charged with sexually abusing his step-granddaughter. The incidents alleged in this matter would have taken place when the complaining witness was between the ages of four and five. People v. Fike, No: 260535, 2006 WL 2271267, *1 (Mich. Ct. App. Aug. 8, 2006).
Petitioner filed an appeal of right with the Michigan Court of Appeals and raised the following issues:
I. Appellant was denied the effective assistance of counsel where his trial attorney, with no strategic purpose, introduced outcome determinative bad man evidence that told the jury Appellant had been in jail for an unnamed offense, 2) failed to see a key point that would have stopped the prosecution from "driving a Mack truck" through the core of his defense, 3) introduced the element of penetration necessary for the critical count against his client and 4) failed to investigate and bring in an important expert witness to counter highly damaging claims made by a prosecution "expert" witness.
II. The failure to take photographs or measurements of the gynecological exam or to record the Care House interview with audio or video tape was a failure to preserve key evidence that should be held to constitute "bad faith destruction" of potentially exculpatory evidence in violation of the Due Process Clauses of the United States and Michigan Constitutions.
III. Where there was no clear evidence of penetration, Appellant's conviction on Count I is against the "great weight of the evidence" and is based on insufficient evidence, and his State and Federal constitutional right to be free from conviction in the absence of proof beyond a reasonable doubt has been violated.
IV. Appellant was denied a fair trial in violation of the Due Process Clauses of the United States and Michigan Constitutions when the trial court, over objection, permitted the late endorsement of a key prosecution witness on the second day of a three day trial."
The Michigan Court of Appeals affirmed Petitioner's convictions. Id. Petitioner sought leave to appeal to the Michigan Supreme Court raising the same issues that were asserted in the Court of Appeals. The Michigan Supreme Court denied leave because the Court was not persuaded that the questions presented should be reviewed. People v. Fike, 477 Mich. 951; 723 NW2d 861 (2006)(table).
Petitioner now seeks to file a writ of habeas corpus asserting the same four claims presented in the state appellate courts with addition of the following claim:
Assuming arguendo that the standard of review set forth in 28 U.S.C. §2254(d)(1) precludes relief in this action, the court should not apply that standard because it is unconstitutional, and the court should grant the writ under a de novo standard of review.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this court's habeas corpus review of state court decisions. Petitioner is entitled to the writ of habeas corpus if he can show that the state court's adjudication of his claim on the merits:
(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 at the State court proceedings.
A state court's decision 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, 412-13 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original). "[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." Id. at 409. "Furthermore, state findings of fact are presumed to be correct unless the defendant can rebut the presumption by clear and convincing evidence." Baze v. Parker, 371 F.2d 310, 318 (6th Cir. 2004) (citing 28 U.S.C. §2254(e)(1)).
A. Unconstitutional Standard of Proof (28 U.S.C. §2254(d)(1))
Because Petitioner challenges the constitutionality of the statute setting the standard of review for habeas actions in federal court, the Court will first address this argument.
Petitioner contends that despite the Court's findings relative to the above stated issues, he remains entitled to relief because the standard of review set forth under 28 U.S.C. §2254(d)(1) is unconstitutional for five reasons: (1) the limitations under 28 U.S.C. §2254(d)(1) violate the doctrine of separation of powers; (2) the limitations under 28 U.S.C. §2254(d)(1) violate the Supremacy Clause of the United States Constitution; (3) the unconstitutionality of 28 U.S.C. §2254(d)(1) requires the federal court to issue advisory opinions that may not be enforced; (4) the standard of review under 28 U.S.C. §2254(d)(1) violates the Due Process Clause of the Fourteenth Amendment; and (5) The strictures of the AEDPA violate Article I, Section 9 of the federal constitution because they effectively suspend the writ of habeas corpus. The Court does not find these arguments persuasive, and further finds that the AEDPA standard of review governs Petitioner's claims. Accordingly, habeas relief cannot be granted or denied pursuant to a de novo standard of review.
First, Petitioner asserts that 28 U.S.C. §2254(d)(1)violates the separation of powers by mandating the law to be applied by federal courts and removing their power to adjudicate constitutional issues. The Fourth and Ninth Circuits both have rejected Petitioner's argument.
In amending section 2254(d)(1), Congress has simply adopted a choice of law rule that prospectively governs classes of habeas cases; it has not subjected final judgments to revision, nor has it dictated the judiciary's interpretation of governing law and mandated a particular result in any pending case. And amended section 2254(d) does not limit any inferior federal court's independent interpretive authority to determine the meaning of federal law in any Article III case or controversy. Under the AEDPA, we are free, if we choose, to decide whether a habeas petitioner's conviction and sentence violate any constitutional rights. Section 2254(d) only places an additional restriction upon the scope of the habeas remedy in certain circumstances.
Green v. French, 143 F.3d 865, 874-75 (4th Cir. 1998) (internal citations), abrogated on other grounds by Williams v. Taylor, 529 U.S. 362 (2000).
Section 2254(d) merely limits the source of clearly established law that the Article III court may consider, and that limitation served to govern prospectively classes of habeas cases rather than offend the court's authority to interpret the governing law and to determine the outcome in any pending case.
Duhaime v. Ducharme, 200 F.3d 597, 601 (9th Cir. 2000); see also, Evans v. Thompson, 518 F.3d 1, 4-10 (1st Cir. 2008). For these reasons, the Court likewise rejects Petitioner's claim that the AEDPA standard of review violates the separation of powers by encroaching on the Court's exercise of the judicial power.
Second, Petitioner maintains that the AEDPA standard violates the Supremacy Clause of the United States Constitution. The Court finds that this claim has no merit.
Nothing in the AEDPA subjugates the Constitution to state law. As the Supreme Court has often noted, the state courts, as co-equal guardians of federal constitutional rights, are perfectly capable of passing on federal constitutional questions. And under the Supremacy Clause, state courts are obligated to enforce the Constitution above state law to the contrary. Nothing in the AEDPA changes this rule of law. The AEDPA does, to be sure, require that federal courts give deference to the federal constitutional decisions of the state courts. This, however, does not offend the Supremacy Clause, which "is concerned with promoting the supremacy of federal law, not federal courts." In short, the AEDPA standard of review does not violate the Supremacy Clause because that Clause "is concerned about a conflict between state and federal law, not between state and federal judges. Indeed, to say, as the Clause does, that federal law shall be 'Supreme... anything in the Constitution or laws of any State to the Contrary notwithstanding' is to say nothing at all about the respective roles of the state and federal courts."
Byrd v. Trombley, 580 F.Supp.2d 542, 552 (E.D. Mich. 2008) (internal citations omitted). Therefore, the Court does not find 28 U.S.C. §2254(d)(1) to be violative of the Supremacy Clause.
Third, Petitioner claims that 28 U.S.C. §2254(d)(1) violates Article III of the Constitution by requiring federal courts to issue advisory opinions.
[N]othing in the AEDPA requires a federal court to determine whether a state court wrongly, as opposed to unreasonably, applied the Constitution. A federal court may, and the courts often do, dispose of a habeas case merely by assessing the reasonableness of the state determination, without ever rendering an opinion on the ultimate correctness of the state court decision.
In any event, any determination on the merits of the underlying constitutional claim as part of the reasonableness inquiry under §2254(d)(1) does not amount to an advisory opinion. The underlying constitutionality may decide the case, for if the particular claim is without merit as a matter of federal constitutional law, it necessarily follows that the state court's rejection of the claim was reasonable. At worst, a court's determination on the underlying constitutional question would be dictum, but dictum is not itself an unconstitutional advisory opinion.
Id. at 552-53 (internal citations omitted). Therefore, 28 U.S.C. §2254(d)(1) is not violative of Article III as it relates to the issuance of advisory opinions.
Fourth, Petitioner contends that 28 U.S.C. §2254(d)(1) violates the Due Process Clause of the Fourteenth Amendment. Petitioner argues that the "standard of review in 28 U.S.C. §2254(d)(1) expressly prevents federal courts from remedying a whole class of due process violations (i.e., those in which a state court has wrongly, but unreasonably, applied constitutional guarantees to the state defendants), and in so doing it runs afoul of the Due Process Clause."
Contrary to petitioner's argument, under the AEDPA standard of review he "is not denied a forum for the vindication of his constitutional rights. The Court still has the power to issue the writ, albeit under more tightly circumscribed conditions." In particular, no due process violation can be shown in light of the historical power of Congress and the courts to impose limitations on the scope of habeas relief.
Id. at 553 (internal citations omitted). Consequently, Petitioner's due process rights have not been violated.
Finally, Petitioner asserts that "the strictures set out in... AEDPA... violate Article I, Section 9 of the federal constitution because they ...