United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
NANCY G. EDMUNDS, District Judge.
This matter is before the Court on petitioner Jimmie Leon Gordon's pro se habeas corpus petitions under 28 U.S.C. § 2254. The habeas petitions challenge Petitioner's Wayne County convictions for one count of first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), two counts of felonious assault, Mich. Comp. Laws § 750.82, and one count of possessing a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner raises several claims regarding the trial judge, his trial attorney, the jury and the jury instructions, and the sufficiency of the evidence. Respondent Blaine C. Lafler argues in an answer to the petition that Petitioner procedurally defaulted several of his claims by failing to raise the claims on direct appeal or by failing to preserve the claims in the trial court. Respondent also contends that the state-court decisions on Petitioner's claims were not contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. Having reviewed the pleadings and record, the Court agrees that Petitioner's claims do not warrant habeas corpus relief. Accordingly, the habeas petition will be denied.
A. The Trial and Sentence
Petitioner was charged with first-degree murder, felony firearm, and two counts of assault with intent to commit murder. The charges arose from a shooting outside Petitioner's home in Detroit, Michigan on October 16, 2004. Seventeen-year-old Francois Todd was shot and killed during the incident. His mother and sister were fired at, but not hit, during the incident. The evidence at Petitioner's jury trial in Wayne County Circuit Court established that,
following a physical confrontation between the victim's sister [Fallon Walker] and [Petitioner's] girlfriend, Ebony Jackson, [Francois] and his mother [Latrell Todd] accompanied [Fallon] to [Petitioner's] home to retrieve her purse from a vehicle parked in [Petitioner's] driveway. As the trio looked for the purse inside the car, [Petitioner] came out of his house and onto the driveway where he remarked, "I know y'all didn't come to my house with this Ebony bullshit." After [Francois] demanded to know where Ebony was, [Petitioner] ran into his house, returned with a rifle, and fired six shots, one of which struck [Francois] in his back, in the direction of the trio. Upon realizing that [Francois] had been shot, [Ms. Todd] screamed at [Petitioner], asking him why he shot the rifle, to which [Petitioner] replied, "He shouldn't have ran up on me... I'm Pac-Man motherfucker, " before leaving the scene and throwing the rifle in a trashcan.
People v. Gordon, No. 261834, 2006 WL 2924658, at *2 (Mich. Ct. App. Oct. 12, 2006) (unpublished).
On February 17, 2005, the jury found Petitioner guilty of one count of first-degree murder, two counts felonious assault (as a lesser-included offense of assault with intent to commit murder), and one count of felony firearm. On March 15, 2005, the trial court sentenced Petitioner to mandatory life imprisonment for the murder conviction, a concurrent term of seventeen months to four years in prison for the assault convictions, and a consecutive term of two years in prison for the firearm conviction.
B. The Direct Appeal
On direct appeal from his convictions, Petitioner argued through counsel that: (1) the trial court's "state-of-mind" jury instruction deprived him of his right to due process; (2) the trial court's failure to instruct the jury on voluntary manslaughter was reversible error; (3) the evidence at trial was insufficient to convict him of first-degree premeditated murder; (4) he was denied effective assistance of trial counsel because counsel (a) failed to present the testimony of witness Meshell Gates, (b) failed to object to the incorrect jury instruction on drawing inferences from the use of a weapon, and (c) failed to request a jury instruction on manslaughter. In a pro se supplemental brief, Petitioner argued that: (1) the prosecutor violated the witness-sequestration order; (2) the prosecutor made prejudicial references to an assault rifle during closing arguments; and (3) an officer tampered with the jury during its deliberations. The Michigan Court of Appeals rejected all of Petitioner's claims and affirmed his convictions in an unpublished decision. See Gordon, 2006 WL 2924658. On March 26, 2007, the Michigan Supreme Court denied leave to appeal. See People v. Gordon, 477 Mich. 1056; 728 N.W.2d 416 (2007) (table).
C. The Initial Habeas Corpus Petition and Motion for a Stay
Petitioner commenced this action in 2008. Although he did not file a supporting brief, he attached the decision of the Michigan Court of Appeals to his petition and stated that he was raising the same claims that he presented to the state courts on direct appeal. See Pet. for Writ of Habeas Corpus at 2 (ECF No. 1 at 2). Before Respondent could file an answer to the petition, Petitioner moved for a stay while he pursued post-conviction remedies in state court. See Mot. for Stay and Abeyance of Habeas Pet. (ECF No. 4). On August 7, 2008, the Court granted Petitioner's motion and closed this case for administrative purposes. See Order Granting Pet'r Mot. for a Stay, Vacating the Order for Responsive Pleading, and Closing Case for Administrative Purposes (ECF No. 5).
D. State Collateral Proceedings
Petitioner subsequently filed a post-conviction motion in the state trial court. He argued that: (1) the trial judge exhibited bias by (a) belittling defense counsel, (b) reading newspapers and magazines when the defense put on its case, (c) giving the impression that he thought the defendant's testimony was a bunch of lies, (d) interrupting counsel during summation and inferring that defense counsel was lying to the jury, (e) treating defense counsel's objections with contempt, and (f) holding counsel in contempt and fining him, but later admitting that he used the contempt charge to calm down counsel; and (2) he was deprived of effective assistance of trial counsel because counsel failed to (a) follow the trial court's instructions to file a motion for new trial regarding judicial misconduct and a police officer's unauthorized communication with the jury and (b) call two doctors whose reports stated that the victim was shot in the chest. The trial court conducted an evidentiary hearing and then denied Petitioner's motion. The Michigan Court of Appeals denied leave to appeal the trial court's decision because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Gordon, No. 300247 (Mich. Ct. App. July 20, 2011). On March 5, 2012, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Gordon, 491 Mich. 851; 808 N.W.2d 767 (2012).
E. The Supplemental Petition, Answer, and Reply
In 2012, Petitioner returned to this Court and filed a supplemental habeas corpus petition with a motion to lift the stay and to re-open this case. See Mot. to Lift Stay and Reopen Case (ECF No. 10) and Pet. for Writ of Habeas Corpus (ECF No. 11). The Court granted Petitioner's motion and ordered Respondent to file a responsive pleading. See Order Granting Pet'r Mot. to Lift Stay, etc. (ECF No. 12). Respondent then filed a response to the petition (ECF No. 21), and Petitioner filed a reply (ECF No. 28).
The parties have numbered Petitioner's grounds for relief as follows: (1) the trial judge was biased; (2) defense counsel's trial conduct and failure to file a motion for new trial amounted to ineffective assistance; (3) the jury instruction on "state of mind" deprived Petitioner of due process; (4) the trial court's failure to instruct the jury on voluntary manslaughter was reversible error; (5) the evidence at trial was insufficient to sustain the murder conviction; (6) defense counsel's failure to present Meshell Gates, failure to object to the jury instruction on inferring intent, and failure to request a jury instruction on manslaughter constituted ineffective assistance of counsel; (7) the prosecutor violated the witness-sequestration order; (8) the prosecutor made improper comments and prejudicial references to an assault rifle during closing arguments; and (9) the jury was tampered with during its deliberations. Respondent contends that a number of these claims are procedurally defaulted. Petitioner concedes that his claims about the prosecutor are procedurally defaulted. Consequently, he has withdrawn his seventh and eighth claims regarding the prosecutor's conduct and remarks.
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, 97 (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, 562 U.S. at 101 (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 103.
A. The Trial Judge (claim one)
Petitioner alleges that he was denied a fair trial and due process of law because the trial judge was actually biased against him or gave the appearance of judicial basis. Respondent argues that this claim is procedurally defaulted because Petitioner did not raise his claim on direct appeal, and when he raised the claim in his post-judgment motion, the trial court's successor, Wayne County Circuit Judge Carole F. Youngblood, cited Michigan Court Rule 6.508(D)(3) in her order denying the motion.
Rule 6.508(D)(3) generally prohibits state courts from granting relief from judgment if the defendant could have raised his claim on appeal from his conviction. Judge Youngblood, however, did not apply this rule in her order denying Petitioner's post-judgment motion. She merely cited the rule, along with the other subdivisions of the rule, and then proceeded to address the merits of Petitioner's claim. This Court, therefore, agrees with Petitioner that his first claim is not procedurally defaulted.
As for the merits of Petitioner's claim, Judge Youngblood determined that the trial judge did not improperly influence the jury, nor deprive Petitioner of a fair trial. In reaching this conclusion, Judge Youngblood noted that, although some the trial judge's conduct could be considered rude in other circumstances, many of the verbal conflicts were precipitated by defense counsel's overzealous conduct, repeated objections to the judge's rulings, and refusal to do as the judge requested.
1. Clearly Established Federal Law
"[T]he Due Process Clause [of the Fourteenth Amendment to the United States Constitution] clearly requires a fair trial in a fair tribunal, ' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904-905 (1997) (internal and end citations omitted. "Trial judges have a wide latitude in conducting trials, but they must carefully preserve an attitude of impartiality and scrupulously avoid giving the jury an impression that the judge believes the defendant is guilty." Harrington v. Iowa, 109 F.3d 1275, 1280 (8th Cir. 1997) (quotation marks and citations omitted). A defendant has the right to an impartial judge "[n]o matter what the evidence was against him." Tumey v. Ohio, 273 U.S. 510, 535 (1927). Thus, the violation of the right to an impartial judge can never be treated as harmless error. Gomez v. United States, 490 U.S. 858, 876 (1989). However,
"[u]nless they amount to constitutional violations, prejudicial comments and conduct by a judge in a criminal trial are not proper subjects for collateral attack on a conviction." Brinlee v. Crisp, 608 F.2d 839, 853 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). In collateral proceedings, the test is "whether the errors alleged... could have rendered [the] trial fundamentally unfair." Buckelew v. United States, 575 F.2d 515, 518 (5th Cir. 1978). To violate a defendant's right to a fair trial, "a trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree." Daye v. Attorney General of New York, 712 F.2d 1566, 1572 (2d Cir. 1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).
McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985). So, to prevail on his claim, Petitioner must show "there was bias, or such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." Ungar v. Sarafite, 376 U.S. 575, 588 (1964).
2. General Allegations about the Trial Judge
As evidence of judicial bias, Petitioner relies on his trial attorney's answer to Petitioner's grievance about the attorney before the Attorney Grievance Commission. In his answer to the grievance, defense counsel stated, among other things, that the trial judge in Petitioner's case
picked arguments with counsel. The Judge belittled counsel at every opportunity. The Judge made it seem as if counsel's objections were meaningless and attempts to confuse the jury. The Judge allowed the prosecution to present a case that bent the rules of evidence. When the defense put on its case the Judge read newspapers and magazines. In particular, when Mr. Gordon testified the Judge read, looked around and gave the impression that he thought the testimony was a bunch of lies. When defense witnesses testified the Judge was reading and at the conclusion of direct examination quickly moved the witnesses out as if what they testified to was not true.
I had to object. The Judge treated my objections with contempt. The Judge treated our case with contempt and the jury got his message. The Judge refused to grant any of my objections. He made it appear as if my objections were silly and deserved no merit.
I did not commit any acts that would violate the rules of conduct. I vigorously represented Mr. Gordon in a courtroom where the Judge was determined to convict him. I made the record despite the Judge['s] very real attempts to manipulate the trial and prevent me from making a record. There was nothing else I could do. We presented a great defense. The Judge nullified that defense through his behavior and his position. The Judge constantly and continually attacked the defense throughout the trial. Mr. Gordon did not receive a fair trial.
Pet. for Writ of Habeas Corpus (ECF No. 11), Ex. A, at unnumbered page 2. The attorney made similar allegations at the state evidentiary hearing. See Evidentiary Hr'g Tr. 63-71, 102-03, 105-06, May 22, 2009; Evidentiary Hr'g Tr. 9-13, 19, 26, 33, June 19, 2009.
It is impossible to tell from the transcript of trial whether the trial judge read newspapers and magazines while defense witnesses testified or whether the judge gave the impression through his conduct and nonverbal messages to the jury that he thought Petitioner was lying when he testified. But a number of defense counsel's other allegations about the trial judge clearly are not supported by the record. It simply is not true that the trial judge "belittled counsel at every opportunity, " refused to grant any of his objections or treated his objections with contempt. The trial judge recognized defense counsel's absolute right to object for purposes of the record ( Trial Tr. Vol. I, 6-9, Feb. 14, 2005) and sustained a number of defense counsel's objections. See, e.g., Trial Tr. Vol. I, 190-91, Feb. 14, 2005 (sustaining defense counsel's objections to the prosecutor's lack of foundation for a question); Trial Tr. Vol. III, 7, Feb. 16, 2005 (sustaining defense counsel's objection to the prosecutor's request to have a witness declared an expert); id. at 25 (sustaining defense counsel's objection to a witness's speculative testimony); id. at 85 and 88-89 (sustaining defense counsel's objections to hearsay).
The court also overruled many of the prosecutor's objections to defense counsel's questions and tactics. See, e.g., Trial Tr. Vol. I, 4-5, Feb. 14, 2005 (telling the prosecutor that the court could not stop defense counsel from calling a witness to testify about Fallon Walker's behavior during medical treatment); id. at 9-10 (rejecting the prosecutor's request to instruct Petitioner's supporters not to talk about the case in the hallway); id. at 178 and 180 (overruling the prosecutor's objections to defense counsel's attempt to elicit alleged hearsay); id. at 212 (overruling the prosecutor's objection to the relevance of a question about Petitioner's nickname); Trial Tr. Vol. II, 159, Feb. 15, 2005 (overruling the prosecutor's objection to defense counsel's question about what a witness saw); Trial Tr. Vol. III, 47, 50-51, 54, Feb. 16, 2005 (overruling the prosecutor's objections and allowing Petitioner to continue his re-cross examination of the witness); id. at 96-99 (overruling the prosecutor's objections, including an objection that defense counsel was arguing and screaming at a witness, and allowing defense counsel to continue his cross-examination of the witness); id. at 118 (overruling the prosecutor's relevancy objection); id. at 119 ( sua sponte objecting to a question asked by the prosecutor).
Several times the trial judge allowed defense counsel to proceed even when the judge apparently thought defense counsel had violated the rules of evidence. See, e.g., Trial Tr. Vol. I, 212, Feb. 14, 2005 (allowing defense counsel to proceed even though a question had been asked and answered); id. at 223 (stating in response to the prosecutor's objection about the relevance of a question, "I'm just tired of battering back and forth and arguing, I'm just going to give him carte blanche."); Trial Tr. Vol. III, 117, Feb. 16, 2005) (overruling the prosecutor's objection to hearsay even though it was hearsay); id. at 118-19 (permitting "totally irrelevant" testimony elicited by defense counsel to be admitted); id. at 134, 165, and 189 (allowing defense counsel to lead a witness); id. at 169 (allowing defense counsel to proceed despite the way he characterized someone's conduct).
To his credit, the trial judge permitted defense counsel to recall any witnesses he wanted (Trial Tr. Vol. II, 160, Feb. 15, 2005) and to have the prosecution produce the witnesses that defense counsel requested ( id. at 203-06). The judge also granted most of defense counsel's requests for specific jury instructions. (Trial Tr. Vol. III, 192-93, Feb. 16, 2005; Trial Tr. Vol. IV, 95-97, Feb. 17, 2005.)
Admittedly, there were times when the trial court admonished defense counsel for asking irrelevant questions or for being repetitive or argumentative. See, e.g., Trial Tr. Vol. I, 138-39, 145-47, 155, 222, Feb. 14, 2005; Trial Tr. Vol. II, 65, 129-30, 183-84, Feb. 15, 2005. But a trial judge is not a "mere moderator" in a jury trial; he or she "is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Quercia v. United States, 289 U.S. 466, 469 (1933).
3. Specific Allegations about the Trial Judge
In his habeas petition, Petitioner refers to the following additional instances of alleged judicial bias:
1. The trial court told defense counsel more than once to sit down. The first time occurred when defense counsel argued with a prosecution witness. (Trial Tr. Vol. I, 155-56, Feb. 14, 2005.) On another occasion, the trial court told defense counsel to "sit down and shut up for a moment." This happened when defense counsel continued to object after the trial judge told a witness to answer a question "yes" or "no." (Trial Tr. Vol. III, 139-40, Feb. 16, 2005.)
2. On the first day of trial, the trial court refused to sequester a prosecution witness that defense counsel considered recalling at a later point in the trial. The trial court ruled that, once a witness testified, the witness could remain ...