United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
DENISE PAGE HOOD, District Judge.
Petitioner Edmond Zoica has filed a pro se application for the writ of habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's state conviction for conspiracy to commit first-degree murder. Petitioner raises several issues regarding his trial and appellate attorneys. Respondent Cindi Curtin urges the Court through counsel to deny the petition. The Court agrees that Petitioner's claims do not warrant habeas corpus relief. Accordingly, the habeas petition will be denied.
A. The Charge and Trial Testimony
In 2005, Petitioner was charged in Oakland County, Michigan with conspiracy to commit first-degree (premeditated) murder. See Mich. Comp. Laws § 750.316(1)(a); Mich. Comp. Laws § 750.157a. He and his two co-defendants, Oliger Merko (Merko) and Ketjol Manoku (Manoku), were tried jointly, but before separate juries, in Oakland County Circuit Court. The Michigan Court of Appeals provided the following overview of the evidence at trial:
The incident giving rise to defendant's convictions is apparently the culmination of a rivalry between two groups of Albanian men that resulted in codefendant Ketjol Manoku opening fire at a minivan holding five members of the rival group after the minivan drove into a parking lot in the late night hours of July 17, 2004, where defendant and his codefendants were standing. Four of the minivan passengers were stuck by bullets, one fatally, as the minivan was attempting to leave the parking lot.
People v. Zoica, No. 270881, 2008 WL 747099, at *1 (Mich. Ct. App. Mar. 20, 2008) (unpublished). The Court of Appeals provided the following additional details about the evidence at trial:
[D]efendant and his coconspirators met together on July 15, 2004, near a coffee shop in Royal Oak where members of the rival group were patronizing, for the purpose of shooting Markiol Jaku and Martin Vucaj, members of that rival group. Defendant did not want the shooting to occur, but only because the shop was too crowded with people. Instead, later that night or the next evening, defendant and his coconspirators proceeded to watch the coffee shop the rival group members were fixing up to open which was called Goodfellows. Defendant and his coconspirators were dressed in dark clothing and were in vehicles with tinted windows. When one of the members of the rival group left the shop, defendant and some of his friends followed in their vehicle. Defendant rolled his window down and had a handgun but did not shoot at the rival group member possibly because of heavy traffic or because they could not tail him close enough to get off a shot.
The day before the shooting, July 16, 2004, defendant and his coconspirators met at a coney island to discuss shooting members of the rival group at Goodfellows. Later that day, they also met at Manoku's apartment to discuss the shooting. They developed a plan to return to Goodfellows and "shoot up the people, " meaning shoot members of the rival group. Defendant suggested that the shooter - Manoku - be on the back of a motorcycle just like he had seen in an action movie and defendant would follow behind to conceal the motorcycle, which was covered in blue painters tape. The shooting would occur the next night, July 17, 2004, the night before coconspirator Oliger Merko's wedding. The next day - the day of the planned shooting - one of the coconspirators, Florjon Carcani, expressed reservations about going through with the shooting. Defendant became angry and said "You're going to go along with this." Preparing for the shooting, defendant and his coconspirators retrieved weapons, including an AK-47 assault rifle that defendant had purchased a couple months before. The assault rifle was placed in Merko's vehicle, the vehicle in which defendant was riding. After the motorcycle was in position for the shooting, the plan was changed and defendant and his coconspirators went to an apartment complex. While in the parking lot, where defendant and his coconspirators were standing by their vehicle that held the AK-47, a minivan carrying rival group members pulled into the parking lot. Shortly thereafter, Manoku, pulled his nine millimeter handgun and opened fire, shooting four of the five people in the minivan as it was attempting to leave. After disposing of evidence and agreeing to an alibi, defendant and his coconspirators went to defendant's apartment and pretended to be having a party. During the police investigation of the shooting, defendant kept in close contact with Carcani, telling him to "keep the alibi and nothing's going to happen to you."
Id. at *2.
Petitioner did not testify or present any witnesses. His co-defendants presented four witnesses: Romeo Toro, Police Officer Brian Honsowetz, Cynthia Bieri, and Police Officer James Kant. Mr. Toro testified that he was the owner of the Goodfellows coffee shop and that he and the other victims of the shooting were at Goodfellows on the night of the shooting. He explained that the group left Goodfellows in his mother's mini van that night and went to an apartment complex in Clawson to visit some girls. Toro stated that there were no weapons in the van and although there was a metal pipe in the van, he did not know how long it had been there.
Continuing, Toro stated that he owned a small black sports utility vehicle at the time, but that it was probably at home on the night of July 17, 2004. He admitted that, after the shooting at the apartment complex, he did not mention Manoku's name to the police even though he knew Manoku had fired shots into the mini van where he and his friends were seated. Toro also admitted that he lied to the police after the shooting, but he explained that he had been shocked, afraid, and fearful of retaliation from the defendants at the time. He denied telling the defendants or their friends that his group was going to the apartment complex, and he claimed that he did not expect to see the defendants or any of their friends at the apartment complex. He also claimed that he did not see Petitioner at the complex immediately before the shooting, but he did say that two men besides Manoku and Merko were present at the shooting and that he had been unable to see their faces. Officer Honsowetz testified that he was dispatched to the hospital where the victims went after the shooting. He spoke to two of the five victims and got a description of two individuals involved in the shooting. The victims were scared, nervous, upset, and concerned about their other friends when he interviewed them.
Cynthia Bieri testified that she lived in the apartment complex where the shooting occurred and that she heard several gunshots at 11:35 p.m. on July 17, 2004. She looked out her window and saw a dark-colored sports utility vehicle with two occupants at the entrance to the complex. The vehicle remained there for at least fifteen minutes and then left the complex.
Officer Kant testified that he spoke with four of the five victims at the hospital on the night of the shooting and acquired an explanation of what had happened, but no one identified the shooter. According to Officer Kent, the victims also had no explanation for why someone would shoot at them.
B. The Verdict, Sentence, and Direct Appeal
On February 17, 2006, Petitioner's jury found him guilty, as charged, of conspiracy to commit first-degree (premeditated) murder, and on March 15, 2006, the trial court sentenced Petitioner to life imprisonment without the possibility of parole. On appeal from his conviction, Petitioner argued that: (1) the trial court incorrectly denied his motion for a directed verdict of acquittal; (2) the trial court abused its discretion by allowing the prosecutor to present "other acts" evidence; (3) he received ineffective assistance of counsel when his trial attorney failed to call witnesses in his behalf or contact any of the potential witnesses that he identified for counsel; and (4) the trial court committed plain error by sentencing him to life imprisonment without the possibility of parole.
The Michigan Court of Appeals affirmed Petitioner's conviction, but remanded his case for correction of the judgment of sentence to reflect a sentence of life imprisonment with the possibility of parole. See id., 2008 WL 747099, at *1 and *5. On July 29, 2008, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Zoica, 482 Mich. 897; 753 N.W.2d 184 (2008) (table).
C. The Post-Conviction Motion and Collateral Appeal
On October 9, 2009, Petitioner filed a motion for relief from judgment in which he raised several issues about his trial attorney. He also alleged that his appellate attorney was ineffective for failing to present all his claims on appeal and that the trial court deprived him of due process and equal protection of the law by failing to provide him with a complete trial transcript. The state trial court denied Petitioner's motion, and 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. Zoica, No. 305338 (Mich. Ct. App. Dec. 19, 2011). On October 22, 2012, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Zoica, 493 Mich. 867; 821 N.W.2d 543 (2012) (table).
D. The Habeas Petition, Responsive Pleading, and Reply
On November 5, 2012, Petitioner filed his habeas corpus petition. His grounds for relief are: (1) trial counsel's advice during plea negotiations was so incorrect and insufficient as to undermine his ability to make an intelligent decision on whether to accept the plea offer; (2) trial counsel's representation resulted in an actual conflict of interest that adversely affected the attorney's performance; (3) trial counsel was ineffective for failing to investigate and present an alibi defense for the night before the shooting when Petitioner allegedly participated in the conspiracy; (4) trial counsel was ineffective for failing to impeach two prosecution witnesses with their bias toward him; (5) trial counsel's incorrect advice and threat not to make a closing argument if Petitioner testified rendered his waiver of the right to testify involuntary; and (6) appellate counsel was ineffective for failing to raise claims one through five on direct appeal.
Respondent urges the Court to deny the petition on the ground that the state courts' rejection of Petitioner's claims was objectively reasonable. Petitioner replies that the Court should not defer to the state courts' rulings because the state courts did not adjudicate the merits of his claims.
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 ...