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Griffes v. Rivard

United States District Court, E.D. Michigan, Southern Division

December 12, 2016

STEVEN RIVARD, Respondent.



         Petitioner Edward Griffes has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his conviction for first-degree felony murder, Mich. Comp. Laws § 750.316(b); felony firearm, Mich. Comp. Laws § 750.227b; and receiving and concealing stolen property (firearms), Mich. Comp. Laws § 750.535(2)(b). For the reasons stated below, the Court denies the petition for a writ of habeas corpus, declines to issue a certificate of appealability, and grants leave to appeal in forma pauperis.

         I. BACKGROUND

         Petitioner was convicted of the above charges following a jury trial in the Montcalm County Circuit Court, in which he was tried jointly with his co-defendants Heath McGowan and Clint McGowan. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This appeal concerns the murder of 88-year old Henry Marrott within his home. Marrott was widely referred to as “Walking Sam” in the local area and in the town of Trufant, Michigan where he resided. Marrott's body was discovered by his lawn care service, having noticed an odor emanating from the home and a massive amount of flies at a window. Upon entering the home, a member of the lawn crew observed the victim's legs hanging out of a bed. On investigation, police observed the basement door area to be ajar and that the locking mechanism to the basement “appeared to have been broken or jimmied somehow.”
* * *
[I]t was not until a one-man grand jury was convened in the fall of 2005 that information was obtained and “this case burst wide open.” Following a five-day hearing, in early 2006 the grand jury authorized indictments for Heath McGowan, Clint McGowan, Eddie Griffes, Michael Hansen and Melissa Mudgett[1] on 14 separate counts, including open murder and felony murder. In addition, indictments were also authorized for Tara Waldorf and Brian Hansen for one count each of accessory after the fact.
Ultimately, co-defendant Michael Hansen pleaded guilty to second-degree murder, receiving a sentence of 222 to 50 years imprisonment. In return, Hansen testified regarding the events leading up to and occurring after the murder. According to Hansen, while at the home of Tiffany Taylor, he and Heath were informed that Marrott had both Oxycontin and money in his home. Later, when at Jody Smith's apartment, Smith and the co-defendants discussed going to the victim's house when he would not be there to steal the money and drugs. Heath and Clint McGowan, along with Griffes, Hansen and two women, Tara Waldorf and Melissa Mudgett drove to the victim's home in the evening. Waldorf and Mudgett remained in the vehicle. The McGowans, Hansen and Griffes entered the victim's home. Hansen remained at the front door as a lookout. Contrary to their expectations, Marrott was at home and argued with Heath. Hansen indicated that Heath struck Marrott in the head “with his hand or something.” While in the home, the McGowans and Griffes searched for drugs and money and left with an “old black powder pistol, ” an unknown quantity of Oxycontin pills and a “lock box” containing money. The four men and two women then drove to a state recreational facility for the visually disabled located near the home of McGowans' parents, later referred to as “the blind camp.” At that location, the pills and money were divided.

People v. McGowan, Nos. 274829, 275197, 276385, 2009 WL 4827442, at *1 (Mich. Ct. App. Dec. 15, 2009) (per curiam). Petitioner's conviction was affirmed on appeal. Id., leave denied 783 N.W.2d 342 (Mich. 2010).

         Petitioner filed a post-conviction motion for relief from judgment pursuant to Mich. Ct. R. 6.500 et. seq., which was denied. People v. Griffes, No. 06-M-7355-FH, Order (Montcalm County Circuit Court Nov. 2, 2012) (Dkt. 17-29). The Michigan appellate courts then denied Petitioner leave to appeal. People v. Griffes, No. 316007 (Mich. Ct. App. Dec. 27, 2013) (Dkt. 17-32), leave denied 849 N.W.2d 382 (Mich. 2014).

         Petitioner seeks a writ of habeas corpus on the following grounds:

i. “It was an abuse of discretion for the court to deny change of venue, or to sever, and failure to order a separate jury for Defendant Griffes where the court was aware that Griffes' defenses were inconsistent and a separate jury could focus on such evidence related solely to Griffes['] culpability in the allegation of his presence at the crime scene, thereby reducing the likelihood of a conviction by association with defendant Heath McGowan.”
ii. “It was an abuse of discretion for the court to deny indigent Defendant Griffes expert witness fees related to the scientific effects of methamphetamine where the prosecution intended to call methamphetamine addicts groomed by the police to change their testimony that Griffes was not present at the crime scene and to buttress this with police ‘expert meth addict memory testimony' at trial.”
iii. “It was error for prosecution to present and the court to allow a police officer to testify as an expert witness in the psychology of memory of drug addicts, where the police officer was not qualified as an expert and there is no recognized science in the recovery of memory.”
iv. “There was insufficient evidence at trial to prove beyond a reasonable doubt that Defendant Griffes was present at the break in and murder of Henry Marrott on July 19, 2002, where there was no physical evidence of his presence, his identification was by drug addicts who benefitted by implicating him with changed stories influenced by police tactics and where he was physically incapable of participating, Griffes having suffered a fracture of his left hip socket and third degree burns on his foot, hospitalized from June 23, 2002 until July 26, 2002, and being confined to a wheelchair until July 26, 2002, when he was allowed to use crutches alleging to have been a passenger in a cramped small car containing five other individuals, exiting the vehicle and running from the victim's home, without the benefit of a wheelchair or crutches, on the night of July 19, 2002.”
v. “The trial court committed reversible error during the jury selection process, especially when it permitted the prosecution to exercise seven consecutive peremptory challenges and also because it denied each defendant the 20 statutory challenges to which they were entitled.”
vi. “The prosecutor prejudiced defendant with improper arguments in violation of his United States Constitution Amendments V, VI, XIV[.]”
vii. “Unduly suggestive witness identification violated defendant's due process[.]”
viii. “Defendant was denied effective assistance of trial counsel violating his VI Amendment[.]”
ix. “Defendant was prejudiced by ineffective assistance of appellate counsel violating his VI Amendment[.]”
x. “Defendant was denied his right to counsel violating his VI Amendment when Judge Miel denied G.R. Frie's motion to appear as co-counsel[.]”

Pet'r Mem. at 11-12 (cm/ecf pages) (Dkt. 13); see also Pet. at 14-18 (cm/ecf pages) (Dkt. 1).


         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:

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.

         A decision of a state court 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, 405-406 (2000). An “unreasonable application” occurs when “a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. 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.

         The Supreme Court has explained that a “federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” 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.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. Furthermore, pursuant to section 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Habeas relief is not appropriate unless each ground that supported the state-court's decision is examined and found to be unreasonable under the AEDPA. See Wetzel v. Lambert, 132 S.Ct. 1195, 1199 (2012).

         “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. A “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state-court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786-787.

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. ANALYSIS

         A. Claim One: The Pretrial-Publicity/Separate-Jury Claim

         Petitioner alleges that the trial judge should have granted his motion to change venue because of extensive pretrial publicity. The Michigan Court of Appeals rejected Petitioner's claim as follows:

Defendant Griffes filed a pre-trial motion seeking a change of venue, asserting that ongoing publicity in the local media in this small community precluded a fair trial due to “community sentiment and widespread exposure.” Griffes contended an impartial jury could not be found to hear this case. The trial court denied the motion based on defendant's failure to show actual prejudice or such deep-seated animosity within the community to preclude the selection of a fair and impartial jury, but agreed to revisit the issue if a jury could not be selected. Following the seating of a jury, defendant renewed his motion for a change of venue. The trial court denied the motion, based on the majority of jurors stating they were not familiar with the case and the averments of the remaining jurors, who acknowledged seeing some media coverage of the case, indicating their ability to remain impartial and render a decision based on the evidence to be presented at trial.

McGowan, 2009 WL 4827442, at *17.

         Prejudice to a defendant can be presumed in cases where the influence of the news media, either in the community at large, or in the courtroom itself, “pervaded the proceedings.” Murphy v. Florida, 421 U.S. 794, 798-799 (1975). However, pretrial publicity, even pervasive adverse publicity, does not inevitably lead to an unfair trial. See DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998). The “indicia of impartiality” on the part of a jury is disregarded only in those cases “where the general atmosphere in the community or the courtroom is sufficiently inflammatory.” Id. at 382 (quoting Murphy, 421 U.S. at 802). The mere prior knowledge of the existence of a case, or familiarity with the issues involved, or even some pre-existing opinion as to the merits of the case, does not, in and of itself, raise a presumption of a jury taint. Id. A person is not automatically rendered unqualified to serve as a juror merely because he or she has been exposed to media coverage of the charged offense. Instead, the issue becomes whether the exposure to media publicity will preclude the individual from returning a verdict based solely on the person's application of the law as stated to the evidence presented. Dell v. Straub, 194 F.Supp.2d 629, 654 (E.D. Mich. 2002).

         In the present case, Petitioner has presented no evidence that showed the type of extensive or inflammatory pretrial publicity that has been condemned by the Supreme Court. The Supreme Court has emphasized the negative effect of pretrial publicity when the publicity amounts to an “out-of-court campaign to convict, ” reflecting “inflamed public sentiment.” DeLisle, 161 F.3d at 385 (quoting Shepherd v. Florida, 341 U.S. 50, 52-53 (1951)). Coverage that consists of “straight news stories rather than invidious articles which tend to arouse ill will and vindictiveness” are not so troubling. Id. at 385 (quoting Beck v. Washington, 369 U.S. 541, 556 (1962)).

         Petitioner has failed to show that any of the media coverage was unduly inflammatory or designed to arouse “ill will” or community prejudice. The media exposure was not so inflammatory so as to render Petitioner's trial unfair, particularly where the vast majority of the stories appear to have simply provided facts about Petitioner's case. See Deel v. Jago, 967 F.2d 1079, 1087-1088 (6th Cir. 1992).

         In addition, there is nothing from the record or the habeas petition to indicate that the courthouse in Petitioner's trial was “conducted in a circus atmosphere, due in large part to the intrusion of the press.” Murphy, 421 U.S. at 799 (quoting Estes v. Texas, 381 U.S. 532(1965)). Petitioner has presented no evidence to demonstrate that the general atmosphere in the community or courtroom was “sufficiently inflammatory” for either the Michigan courts or this Court to disregard the jury's “indicia of impartiality.” Id. at 802. Petitioner has not presented any evidence that his trial took place under the conditions of “total chaos” that prevailed in cases like Estes or Sheppard v. Maxwell, 384 U.S. 333 (1966). A review of those cases leaves no doubt that it was “that chaos which drove those decisions.” DeLisle, 161 F.3d at 384. Because the record does not indicate that Petitioner's trial took part in a “circus like atmosphere, ” this Court cannot presume prejudice to Petitioner's case merely because the jurors were exposed to pretrial publicity about the case. Dell, 194 F.Supp.2d at 655.

         Petitioner has also failed to show actual prejudice to his case from the jurors' exposure to the pretrial publicity. To demonstrate actual prejudice, a habeas petitioner must show that one or more jurors entertained an opinion before trial that petitioner was guilty and that these jurors could not put this prejudice aside and render a verdict based solely upon the evidence. Id. The test for whether pretrial publicity necessitates a change in venue is whether a juror exposed to ...

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