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Russell v. Maclaren

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

June 1, 2017

TRACY RUSSELL, Petitioner,



         Petitioner Tracy Russell has filed a pro se habeas corpus petition challenging his convictions for aggravated stalking, Mich. Comp. Laws § 750.411i(2), and larceny in a building, Mich. Comp. Laws § 750.360. He alleges as grounds for relief that (1) there was insufficient evidence at trial to support his stalking conviction, (2) the trial court erred by admitting “other acts” evidence and testimony about a personal protection order (PPO), (3) the prosecutor committed misconduct during closing arguments, and defense counsel was ineffective for failing to object to the misconduct, (4) the jury instructions were deficient, and defense counsel was ineffective for failing to object to the instructions, (5-6) the trial court erred when sentencing him, and defense counsel was ineffective for failing to object to the errors, (7) the police failed to advise him of his constitutional rights before interviewing him, (8) he was denied discovery materials, and (9) the trial court erred by allowing the prosecutor to amend the dates in the charging document. Respondent Duncan Maclaren argues in an answer to the habeas petition that Petitioner's claims are procedurally defaulted, not cognizable on habeas review, or meritless. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         The charges against Petitioner arose from allegations that he stole his girlfriend's jewelry while the two of them were living together and that he harassed the girlfriend after she ended her relationship with him and he moved out of her home. Petitioner was tried before a jury in Jackson County Circuit Court. The Michigan Court of Appeals summarized the evidence at trial as follows:

Defendant telephoned the victim repeatedly and sent her scores of text messages after she ended their relationship. The victim felt threatened by some of defendant's text messages, including messages in which defendant told her he would “holler” at her; the victim believed “holler” was defendant's way of saying he was going to hurt her. Defendant also sent the victim a text message in which he told her, “[c]ould put red on that yellow sweatshirt, don't want to make a M with the people in the red truck around. LOL. For blood and he know why, so believe it.” At the time she received this message, the victim was wearing a yellow sweatshirt inside her home and had not left home while wearing it. There was also a red truck parked outside her home. The victim believed that this message meant that defendant wanted to harm or kill her. The victim also believed that defendant followed her when she left her home. She obtained a personal protection order (PPO) against defendant on September 8, 2011. Defendant continued to telephone the victim despite being present at the hearing at which a PPO was issued that prevented him from contacting the victim.

People v. Russell, No. 310278, 2013 WL 3239751, at *1 (Mich. Ct. App. June 27, 2013) (unpublished).

         The prosecutor maintained that Petitioner was guilty of aggravated stalking on the basis of two different theories: (1) Petitioner violated the PPO and (2) he made a credible threat against the complainant. Petitioner did not testify or present any witnesses. His defense to the stalking charge was that the complainant never admitted to being terrorized, frightened, intimidated, harassed, or molested, as required by the statute. As for the larceny charge, Petitioner maintained that the prosecutor failed to prove beyond a reasonable doubt that the jewelry in question actually existed. On March 7, 2012, the jury found Petitioner guilty, as charged, of aggravated stalking and larceny in a building.

         The trial court sentenced Petitioner as a habitual offender to a term of two to five years in prison for the stalking conviction and to time served (230 days) plus five years of probation for the larceny conviction. The court also ordered Petitioner to pay restitution, fines, and costs. The Michigan Court of Appeals affirmed Petitioner's convictions, see id., and the Michigan Supreme Court denied leave to appeal on March 28, 2014. See People v. Russell, 495 Mich. 977; 843 N.W.2d 753 (2014) (table).

         On March 12, 2015, Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2254. Although Respondent asserts that some of Petitioner's claims are procedurally defaulted, Petitioner's claims lack substantive merit, and the Court finds it more efficient to analyze the merits of his claims than to determine whether the claims are procedurally defaulted. “[F]ederal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits, ” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), and a procedural-default analysis “adds nothing but complexity to the case, ” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010).

         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). “AEDPA ‘sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was “adjudicated on the merits in State court proceedings.” ' ” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Johnson v. Williams, 568 U.S. 289, __, 133 S.Ct. 1088, 1094 (2013) (quoting 28 U.S.C. § 2254(d)).

         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.

         Further, “ ‘[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct, ' unless rebutted by ‘clear and convincing evidence.' ” Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015) (quoting 28 U.S.C. § 2254(e)(1)), cert. denied, 136 S.Ct. 1384 (2016). Finally, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Analysis

         A. Sufficiency of the Evidence

         The first habeas claim alleges that the evidence at trial was insufficient to support Petitioner's conviction for aggravated stalking. Petitioner contends that he was arrested for violating a PPO even though there was no PPO in effect at the time. Petitioner further alleges that he made no credible threat to kill or inflict physical injury on the complainant. The Michigan Court of Appeals adjudicated Petitioner's claim on the merits and concluded that the evidence was sufficient for a rational jury to convict Petitioner under both of the prosecutor's theories.

         1. Clearly Established Supreme Court Precedent

         The Supreme Court has held “that the Due Process Clause [of the Fourteenth Amendment to the United States Constitution] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Following Winship, the critical inquiry on review of a challenge to the sufficiency of the evidence supporting a criminal conviction is

whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) (emphases in original).

         The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, __, 132 S.Ct. 2060, 2062 (2012) (per curiam). First, it is the responsibility of the trier of fact “ ‘to decide what conclusions should be drawn from evidence admitted at trial.' ” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).

And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.' ”

Id. (quoting Smith, 565 U.S. at 2) (quoting Lett, 559 U.S. at 773).

         2. State Law on Aggravated Stalking

         The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. The offense in question here is aggravated stalking, which “consists of the crime of ‘stalking, ' M.C.L. § 750.411h(1)(d), and the presence of an aggravating circumstance specified in M.C.L. § 750.411i(2).” People v. Threatt, 254 Mich.App. 504, 505; 657 N.W.2d 819, 820 (2002). “Stalking” is “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Mich. Comp. Laws § 750.411i(1)(e).

         The aggravated circumstances charged in this case were (1) the violation of a restraining order or an injunction and (2) the making one or more credible threats against the victim. Mich. Comp. Laws § 750.411i(2)(a) and (c). A “credible threat” is “a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual.” Mich. Comp. Laws § 750.411i(1)(b).

         3. Application

         The evidence at Petitioner's trial established that he violated the trial court's PPO by calling the complainant from jail after the PPO was signed. Petitioner contends that the PPO was signed after his arrest, and, therefore, the stalking charge was invalid and should have been dismissed. But he was arrested on September 7, 2011, on the basis of his threatening behavior, not the PPO, which was signed on September 8, 2011. Subsequently, on September 15, 2011, Petitioner called the complainant several times from jail, thereby violating the PPO.

         In addition, the preliminary examination was held on September 22, 2011, and at that hearing, the state district court revoked Petitioner's telephone privileges. Petitioner, nevertheless, called the complainant four more times from jail after the preliminary examination. The prosecutor subsequently amended the charging document to include September 22, 2011, as one of the dates of the crime. In light of the amendment and evidence that Petitioner called the complainant after the PPO was issued, the prosecutor proved the first aggravating circumstance: violation of a restraining order.

         The evidence at trial also established that Petitioner made at least one credible threat against the complainant. On a day when the complainant was wearing a yellow sweatshirt, Petitioner sent the complainant a text message, which stated:

Could put red on that yellow sweatshirt. Didn't want to make a mess with those people in the red truck around. Laugh out Loud. For blood. And he know (sic) why, so believe it.

(Trial Tr. Vol. III, at 42, Mar. 7, 2012).

         The complainant interpreted this message as a specific threat to her safety. She understood the reference to “red” to be blood and the message to mean that Petitioner wanted her dead. And because she was at home at the time and had not been outside in the yellow sweatshirt that day, she assumed that Petitioner was outside her window when he sent the message. (Trial Tr. Vol. I, at 184-85, Mar. 5, 2012.) She notified the police after she received the message, and, within approximately three hours, the police obtained a search warrant and found Petitioner inside his apartment with a rifle within fifteen or twenty feet of him. (Trial Tr. Vol. II, at 164-69, Mar. 6, 2012.)

         At trial, the complainant described Petitioner's conduct as “disturbing, ” and she stated that she was still scared. (Trial Tr. Vol. II, at 34-35, 37, Mar. 6, 2012.) Her testimony and the testimony of other witnesses established the second aggravating circumstance: a credible threat to injure a person, causing the person to fear for her safety.

         A rational juror could have concluded from the evidence taken in the light most favorable to the prosecution that Petitioner made a credible threat against the complainant and that he also violated a restraining order against him. Therefore, the evidence was sufficient to sustain Petitioner's conviction for aggravated stalking, and the state court's adjudication of Petitioner's claim on the merits was not contrary to, or an unreasonable application of, Jackson. Although the state court did not cite Jackson in its decision, it applied the same standard, and “a state court need not cite or even be aware of [Supreme Court] cases” to avoid the pitfalls of § 2254(d)(1). Richter, 562 ...

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