The opinion of the court was delivered by: John Corbett O'Meara United States District Judge
HONORABLE JOHN CORBETT O'MEARA
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION, BUT GRANTING A CERTIFICATE OF APPEALABILITY
Petitioner David Dennard McKinney has filed a habeas corpus petition challenging his state court convictions for Felony Murder and Accessory after the Fact to Arson. The convictions arose from the death of Clyde Alexander during a fire at Alexander's Gun Shop in Inkster, Michigan in 2004. Petitioner was sentenced to life imprisonment without parole for his felony murder conviction and two to five years for his accessory-after-the-fact conviction. Petitioner alleges through counsel that (1) his statement to the police should not have been admitted in evidence because the police took his statement in violation of his right to counsel, (2) there was insufficient evidence to convict him of Felony Murder, (3) there was insufficient evidence to convict him of Accessory after the Fact to Arson, and (4) the prosecutor's opening statement and closing arguments contained inappropriate comments, which resulted in prosecutorial misconduct. Respondent Nick Ludwick urges the Court through counsel to deny the petition. The Court agrees that Petitioner is not entitled to the relief he seeks. Accordingly, the habeas petition will be denied.
A. The Facts, Jury Verdict, and Sentence
Petitioner was charged in an amended information with Felony Murder and Accessory after the Fact as to Arson. The prosecutor proceeded against Petitioner on an aiding and abetting theory.
The evidence at trial established that, on August 3, 2004, police responded to a fire at Alexander's Gun Shop in Inkster, Michigan. It took several hours to suppress the fire because exploding ammunition kept firefighters from approaching the building and the roof collapsed. When the fire was extinguished, police discovered the body of Clyde Alexander, one of the store's owners. The medical examiner's report showed that, although he had been beaten before death, he died of smoke inhalation and burns on 98% of his body. A plastic tie-cuff was attached to his wrist, with another tie attached to it. After further investigation, the police determined that the fire had been intentionally set with accelerants and about ninety guns were missing from the store.
While Petitioner was being held on other charges, police advised him of his Miranda rights*fn1 and questioned him about the fire. During this initial interrogation, Detective Delgreco informed Petitioner what an informant had said. At that point, Petitioner put his head down by his knees and said, "I planned it." He immediately asked for his attorney, and the interrogation stopped. As Detective Delgreco returned Petitioner to his cell, he informed Petitioner that the death penalty was an option if the case were tried in federal court. The next morning, Detective Delgreco was in Petitioner's cellblock for other reasons when the Petitioner called him to his cell and asked to talk about the case. First, the detective told Petitioner that he could not talk about the case because Petitioner had invoked his right to a lawyer. But, after he was reread his Miranda rights and agreed to waive them, Petitioner gave a written statement.
In the statement, Petitioner explained that he was at a friend's house when the topic of robbing the gun store came up. He agreed to plan the robbery and serve as a lookout in return for $500. Petitioner spent a week planning the robbery and obtained a layout of the store. The plan was to get in and out of the store quickly. On the day in question, he and five other men stopped at the Marathon Station to "gas up" and then rode to the gun shop in two vehicles; they parked behind the store. Petitioner remained in one of the vehicles while one man entered the front of the store and three other men entered the rear of the store. When the men returned to the car fifteen to twenty minutes later with guns, Petitioner saw smoke coming from the building and asked about it. One of the men told him that "shit got wild." They left the area, and Petitioner asked to be dropped off a short time later. He did not learn about the fire or Mr. Alexander's death until the next day, and he claimed that the fire and murder were not part of the plan. (Tr. Aug. 23, 2005, at 75-77.)
Petitioner moved to suppress his statement, but the trial court denied his motion after conducting an evidentiary hearing on the issue. Petitioner's written statement to the police and his prior statement that he "planned it" were the only pieces of evidence linking Petitioner to the crime. He did not testify or present any witnesses at trial. His defense was that he was involved in the incident but was not guilty of felony murder or arson because there was no evidence that he planned a murder or an arson or knew what was going to happen.
On August 24, 2005, a Wayne County Circuit Court jury found Petitioner guilty, as charged, of Felony Murder, Mich. Comp. Laws § 750.316(1)(b), and Accessory after the Fact to Arson, Mich. Comp. Laws § 750.505. The trial court sentenced Petitioner to life imprisonment for the murder and to a concurrent term of two to five years for being an accessory after the fact to arson.
B. Post-Conviction Proceedings
Petitioner raised his habeas claims in a motion for new trial, which the trial court denied, and in an appeal of right. The Michigan Court of Appeals affirmed his convictions in an unpublished per curiam opinion. See People v. McKinney, No. 269823, 2007 WL 2807961 (Mich. Ct. App. Sept. 27, 2007).*fn2 The Court of Appeals found that Detective Delgreco's statement that Petitioner could be facing the death penalty was an improper interrogation, but that the trial court did not err by admitting the statement because enough time had passed between Delgreco's improper comment and Petitioner's statement the next day, such that the coercive effect of Delgreco's comment had diminished.
The Court of Appeals also found that there was sufficient evidence to convict Petitioner of both Felony Murder and Accessory after the Fact to Arson. The Court of Appeals stated that, "by planning the larceny of a gun shop, even though defendant did not plan the death of Alexander and . . . did not go into the shop during the larceny, defendant set in motion a series of events that was likely to cause death or great bodily harm." Id. at *5. The Court of Appeals determined that there was enough evidence for the jury to infer that Petitioner and the other men had purchased gasoline to start the fire and that Petitioner drove away with the others knowing there was a fire. Id.
The Michigan Court of Appeals also rejected Petitioner's claim of prosecutorial misconduct. It found that the prosecutor's statements were not improper, were made in good faith, were cured by a jury instruction, were not properly objected to at trial, or were not prejudicial to Petitioner. Id. at *6-9. Petitioner raised the same issues in the Michigan Supreme Court, which denied leave to appeal on June 25, 2008, because it was not persuaded to review the issues. See People v. McKinney, 750 N.W.2d 590 (Mich. 2008) (table).*fn3
C. The Habeas Petition and Answer
Petitioner filed his habeas corpus petition pursuant to 28 U.S.C. § 2254 (1996) on November 18, 2008. He raises essentially the same claims that he raised in state court: (1) his convictions were based upon a confession given in violation of the Sixth Amendment, (2) there was insufficient evidence to convict him of Felony Murder, (3) there was insufficient evidence to convict him of Accessory after the Fact to Arson, and (4) he was denied a fair trial due to prosecutorial misconduct during the opening statement and closing arguments.
Respondent argues in an answer to the habeas petition that the state court's adjudication of Petitioner's first three claims was not contrary to, or an unreasonable application of, Supreme Court precedent. Respondent contends that portions of Petitioner's fourth claim (prosecutorial misconduct) are barred from review by Petitioner's procedural default of failing to object to the claimed misconduct during trial. Petitioner has not filed a reply or a supporting brief, and to the extent that his claims are unclear, the Court has looked to his state court brief for clarification.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's habeas corpus review of state court decisions. Specifically, 28 U.S.C. § 2254(d) provides:
(d) 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.
28 U.S.C. § 2254(d). Furthermore, all factual determinations made by a state court are presumed correct for purposes of review. This presumption may be rebutted only with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001).
Granting a habeas petition under the "contrary to" clause is only appropriate "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 326, 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 principal to the facts of the prisoner's case." Id. at 413. "[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 411. Instead, it must ask "whether the state court's application of clearly established federal law was objectively unreasonable." Id.
A. Petitioner's Custodial Statement
Petitioner first contends that his statement to the police was inadmissible because, after he invoked his right to counsel and was being escorted to his cell, Detective Anthony Delgreco informed him that he could get the death penalty if he were charged under federal law. On review of this claim, the Michigan Court of Appeals decided that Detective Delgreco's comment about the death penalty constituted interrogation, but that enough time passed between the improper interrogation by Delgreco and Petitioner's statement the next morning that the coercive effect of the interrogation had subsided. McKinney, 2007 WL 2807961 at *2-3. Therefore, it found the statement was properly admitted in evidence. Id.
Petitioner raises his claim under the Sixth Amendment to the United States Constitution. The Sixth Amendment right to counsel is offense-specific and attaches when a prosecution commences and a suspect is charged with a crime even if he previously retained counsel. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Moran v. Burbine, 475 U.S. 412, 430 (1986). Because Petitioner had not been charged at the time of his interrogation, his Sixth Amendment right to counsel was not violated even though he already had an attorney.
In state court, Petitioner also raised his claim under the Fifth Amendment to the United States Constitution. He claimed that Detective Delgreco's death-penalty statement was an improper interrogation following his invocation of the right to counsel and therefore his response to the interrogation was ...