United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JOHN CORBETT O'MEARA, District Judge.
Petitioner Jonathan Alonzo Phlegm has filed a pro se habeas corpus petition challenging his state convictions for first-degree murder and several related offenses. The habeas petition alleges that (1) Petitioner's trial attorney was ineffective for failing to request a jury instruction on accomplices, (2) the state trial court erred by denying Petitioner's motion for appointment of an expert witness on identification, (3) there was insufficient evidence at trial to support some of the convictions, and (4) the prosecutor made an improper rebuttal argument regarding consciousness of guilt. Respondent Mary Berghuis argues in an answer to the petition that Petitioner's fourth claim is procedurally defaulted and that his other claims lack merit. The Court agrees that none of Petitioner's claims warrant habeas relief. Accordingly, the habeas petition will be denied.
The prosecutor for Oakland County, Michigan charged Petitioner with twenty-two felony counts, including: two counts of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b); two counts of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a); two counts of assault with intent to rob while armed, Mich. Comp. Laws § 750.89; one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b; one count of conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, Mich. Comp. Laws § 750.529; one count of first-degree home invasion, Mich. Comp. Laws § 750.110a(2); two counts of unlawful imprisonment, Mich. Comp. Laws § 750.349b; and eleven counts of possessing a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner was tried in Oakland County Circuit Court with his two co-defendants, Steven Bard and Charles Smith, but each defendant had his own jury. The evidence at trial established that
during the early morning hours of June 5, 2007, all three defendants broke into a house in Pontiac where Cleveland Brown, a member of a gang known as the "A-Team, " and Maurice Threlkeld, a known drug dealer, both lived. Only Brown and his girlfriend were present at the time of the break-in, but Threlkeld returned home while defendants were inside the house. Defendant Smith sexually assaulted Brown's girlfriend. The house was ransacked, and Threlkeld and Brown were forcibly removed from the house. On June 6, the bodies of Threlkeld and Brown were found in Brown's Chevrolet Suburban vehicle, which was parked on the I-75 service drive [near Seven Mile Road in Detroit]. Threlkeld and Brown both died from gunshot wounds.
The sexual assault victim identified defendant Bard in a photographic lineup and identified defendant Phlegm in a corporeal lineup as individuals who participated in the crimes. Although she was unable to identify the person who sexually assaulted her, defendant Smith's DNA matched DNA obtained from the victim during a sexual assault examination and from a condom found in the bedroom where the assault took place. Other individuals, including Johnny Hodges, a member of the same gang as defendants Bard and Phlegm, were excluded as a possible source of the DNA evidence.
At trial, Hodges testified that he provided false information to law enforcement officers when he was initially questioned during the police investigation, but later decided to come forward and testify for the prosecution because of his friendship with Threlkeld. He claimed that he was affiliated with defendants Bard and Phlegm through their membership in a Pontiac gang known as the North World Org or North World Order ("NWO"), and that other gang members, including defendant Bard, introduced him to defendant Smith. Hodges testified that he had contact with each defendant on June 5, 2007.... He also testified regarding a NWO gang meeting that all three defendants attended later in the day on June 5, at which attendees were directed to search for members of the "A-Team" gang, who were reportedly responsible for abducting defendant Bard's brother. Hodges testified that his involvement in the events surrounding Brown and Threlkeld was limited to getting rid of the guns used in the crimes.
People v. Phlegm, No. 288622, 2010 WL 2696678, at *1-*2 (Mich. Ct. App. July 8, 2010).
There was additional evidence that, on the afternoon of June 5, 2007, Brown's sister saw Petitioner and Bard in a white car in Pontiac. Petitioner got out of the car and said something about killing people and having sex with their women. (Trial Tr. Vol. VI, 88-90, 99, 105-07, Aug. 7, 2008.) Later that evening, she saw Petitioner, Bard, and a third person at a fast food restaurant. Petitioner was waving a gun. ( Id. at 110-12, 122, 124.)
Edmund Stewart testified that, on or about July 15, 2007, he was arrested for driving on a suspended license. On July 24, 2007, he was brought to the Pontiac district court, where he was placed in a holding cell. While there, he encountered Petitioner and Bard. Bard was talking about how he "[b]ust in the crib, set em out on the floor... and screwed [the] girl." Petitioner, meanwhile, was saying how they bust through the door, made the people lie on the floor, did what they had to do, and took care of them. According to Stewart, Petitioner also said that the men were shot and got what they deserved. (Trial Tr. Vol. VII, 166-70, 178-79, 201, 203, Aug. 8, 2008.) Stewart claimed that he received nothing in exchange for his testimony. ( Id. at 224.)
David Phillips testified that he was arrested in 2007 on an unrelated charge and sent to Oakland County Jail. While he was there, he talked with Petitioner, who informed him that he (Petitioner) had sold some drugs to Threlkeld and Brown and that Threlkeld and Brown were killed because Threlkeld had not paid him. Petitioner also informed Phillips that the men were taken out of the house. Petitioner insinuated that he was involved in the murder of Threlkeld and Brown, and he admitted to Phillips that he shot two or three people and threw away his pistol before being arrested. Furthermore, while the trial was ongoing, Petitioner asked Phillips four times not to testify. (Trial Tr. Vol. XI (a.m. session), 6-7, 14-17, 50-52, 55, Aug. 14, 2008.) Phillips admitted that a gun charge against him was dismissed as part of his plea agreement with the prosecutor and in exchange for his testimony against Petitioner. ( Id. at 18-19, 30.)
Petitioner did not testify, and his only witness was Oakland County Deputy Sheriff James Lambert, who testified that, on July 24, 2007, Petitioner, Bard, and Edmund Stewart were temporarily held at the Pontiac district court. According to Lambert, Stewart would not have been in a position to see Petitioner or Bard in the detention cells. (Trial Tr. Vol. XII, 122, 128-31, Aug. 15, 2008.)
Petitioner's defense was that the prosecutor failed to prove all the elements of the crimes and failed to show that Petitioner committed the crimes. Defense counsel argued that the criminal assault victim misidentified Petitioner, that Edmund Stewart was not entirely truthful, and that David Phillips worked out a deal for his testimony.
On August 21, 2008, Petitioner's jury found him guilty, as charged, of four counts of first-degree murder (under two theories), two counts of assault with intent to rob while armed, one count of first-degree criminal sexual conduct (on an aiding and abetting theory), one count of conspiracy to commit armed robbery, one count of first-degree home invasion, two counts of unlawful imprisonment, and eleven counts of felony firearm. At the sentencing on September 9, 2008, the trial court vacated two of the murder convictions on double jeopardy grounds. The court then sentenced Petitioner to two years in prison for the felony firearm convictions, followed by concurrent terms of life imprisonment for the murder convictions, twenty to thirty years for the home-invasion conviction, sixty to ninety months for the unlawful-imprisonment convictions, and thirty-four years, eight months to ninety years for the assault-with-intent-to-rob convictions, the sexual-assault conviction, and the conspiracy conviction.
Petitioner raised his habeas claims on appeal from his convictions. The Michigan Court of Appeals affirmed his convictions, but remanded his case for correction of the judgment of sentence to show that Petitioner stood convicted of only nine counts of felony firearm after two of his four murder convictions were vacated. See Phlegm, 2010 WL 2696678. On February 7, 2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Phlegm, 488 Mich. 1039; 793 N.W.2d 705 (2011) (table). On January 19, 2012, Petitioner filed his habeas corpus petition under 28 U.S.C. § 2254. Although he did not file a supporting brief, he adopts by reference his state appellate brief.
II. Standard of Review
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 783 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims 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 in the State court proceeding.
28 U.S.C. § 2254(d).
Under the "contrary to" clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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. Under the "unreasonable application" clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). "[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.
"AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ( per curiam )." Renico v. Lett, 559 U.S. 766, 773 (2010). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
A. Trial Counsel
Petitioner alleges that his trial attorney was ineffective for failing to request a jury instruction on accomplice testimony. The alleged accomplice was Johnny Hodges, a key prosecution witness. Petitioner claims that Hodges was an admitted accessory after the fact, because he testified that he assisted in disposing of the weapons used in the crimes (Trial Tr. Vol. IX, 63-65, 91-92, Aug. 12, 2008) and that he let defendants Smith and Bard hide in his parents' home when the police arrived at the house ( id. at 36, 94). Petitioner asserts that a cautionary instruction on accomplice testimony would have added teeth to defense counsel's argument that Hodges got rid of evidence and was not credible. (Trial Tr. Vol. XIII, 72-74, Aug. 19, 2008.)
1. Clearly Established Supreme Court Law
To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that "counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). "Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable." Id.
The "deficient performance" prong "requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. "Judicial scrutiny of counsel's performance must be highly deferential, " and "[b]ecause of the difficulties inherent in making the evaluation [of attorney performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689.
The "prejudice" prong of the Strickland test "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. The defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "This does not require a showing that counsel's actions more likely than not altered the outcome, '" but "[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792 (quoting Strickland, 466 U.S. at 693).
"The standards created by Strickland and § 2254(d) are both highly deferential, ' and when the two apply in tandem, review is doubly' so." Id. at 788 (internal and end citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any ...