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Morris v. Berghuis

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

May 22, 2018

MICHAEL JEROME MORRIS, Petitioner,
v.
MARY BERGHUIS, Respondent.

          OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE SEAN F. COX JUDGE

         State prisoner Michael Jerome Morris (“Petitioner”) filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges Petitioner's convictions for conducting a criminal enterprise, Mich. Comp. Laws § 750.159i(1), conspiracy to commit false pretenses involving a value of $20, 000 or more, Mich. Comp. Laws § 750.157a, and three counts of false pretenses involving a value of $20, 000 or more, Mich. Comp. Laws § 750.218(5)(a).

         Petitioner alleges as grounds for relief that (1) the admission of a default judgment entered against him in a civil case violated his Fifth Amendment right to remain silent, (2) his trial attorney was ineffective, (3) there was insufficient evidence at trial to support his convictions, and (4) the prosecutor engaged in misconduct. Respondent Mary Berghuis urges the Court to deny the petition on grounds that Petitioner procedurally defaulted his fourth claim and that none of Petitioner's claims have merit. The Court agrees that Petitioner's fourth claim is procedurally defaulted and that his other claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         Petitioner and his co-defendant, William Theartist Perkins (“Perkins”), were tried jointly before a single jury in Wayne County Circuit Court. The evidence at trial established that Petitioner

engag[ed] in a scheme with codefendant Perkins to supply kiosks to churches in the Detroit area through an entity known as Television Broadcasting Online (“TVBO”), during which church officials were led to believe that the kiosks would be provided at no cost to the churches and that all costs would be assumed by national sponsors. Although defendant and codefendant Perkins were situated in Washington, D.C., they came to the Detroit area to make presentations and to assist in supplying the kiosks to churches. Bishop Henry Washington, who was involved in local business-orientated support for churches through the Office of Ecclesiastical Council, was enlisted to market TVBO's kiosk program in the Detroit area. According to Washington, defendant explained to him that a church could receive a kiosk at no cost to the church because sponsors would pay for the cost of the kiosks. At various presentations explaining the program, church officials were invited to submit applications to participate in the kiosk program. If the church qualified, a kiosk would be delivered to the church.
The prosecution presented evidence that at the time of delivery, various documents were presented to church officials for signature. Among the documents was a four-year lease agreement with a leasing company. The churches were provided with funds to make the initial lease payments based on representations that the funds had been provided by sponsors. The leasing company would purchase the kiosk from TVBO and acquire the lease agreement with the church. Eventually, TVBO stopped providing funds for the lease payments and the leasing company sought collection directly from the churches, leading to a number of lawsuits. One lawsuit was filed by 20 churches against defendant, codefendant Perkins, TVBO, and other entities, and led to the entry of a default judgment against defendant. The judgment awarded money damages to the civil plaintiffs and voided the lease agreements on the basis of fraud.

People v. Morris, No. 303102, 2013 WL 6244700, at *1 (Mich. Ct. App. Dec. 3, 2013).

         There was additional evidence that Petitioner made a net profit of approximately $20, 000 on each kiosk that he sold to the leasing companies. His defense to the charges was that he did not lie to any of the pastors who ordered kiosks, that he did not try to trick the pastors into signing documents, and that he did not try to get money by deceit, fraud, or any kind of false representation. He maintained that he simply was unable to keep his commitment to the churches because he lacked adequate funding for the project.

         Although an individual named Larry Richards provided TVBO with $410, 000 through an umbrella organization known as Diversity Financial Services Network (“DFN”), Petitioner testified that the money was used for operating expenses and that DFN sent no additional money to cover the churches' payments to the leasing companies. Additionally, an investor named Jesus Linares initially promised to give DFN $3, 200, 000 for the project, but he later reneged on his promise.

         Perkins did not testify or present any evidence, and on October 26, 2010, the jury found both Petitioner and Perkins guilty of conducting a criminal enterprise, conspiracy to commit false pretenses, and three counts of false pretenses. The jury acquitted Petitioner of one additional count of false pretenses and four counts of fraud. On December 22, 2010, the trial court sentenced Petitioner to imprisonment for seventy months to twenty years for the criminal-enterprise conviction and to concurrent terms of five to ten years in prison for the other four convictions. The Michigan Court of Appeals affirmed Petitioner's convictions and sentences, see id., and on May 27, 2014, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Morris, 495 Mich. 1007; 846 N.W.2d 401 (2014). On May 8, 2015, Petitioner filed his habeas corpus petition.

         II. Standard of Review

         Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court may grant an application for the writ of habeas corpus only if 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)(1) and (2).

         “[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.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (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.

         III. Analysis

         A. The Admission of the Default Judgment in Evidence

         Petitioner alleges that the state trial court violated his right to due process by admitting in evidence a default judgment that the churches obtained against him in a civil lawsuit. (10/7/10 Trial Tr., at 25.) Petitioner contends that his failure to defend the civil lawsuit was pretrial silence protected by the Fifth Amendment and that the Fifth Amendment was violated because he was forced to testify at his criminal trial to explain why he did not answer the civil complaint. Petitioner also alleges that the default judgment was admitted improperly under the Michigan Rules of Evidence. According to him, there was no evidence that he intended his failure to answer the civil lawsuit to be an admission, and the evidence had no probative value in his criminal case.

         The Michigan Court of Appeals rejected Petitioner's claim of constitutional error and concluded that the trial court did not abuse its discretion by refusing to exclude the evidence under the Michigan Rules of Evidence. The Court of Appeals also concluded that any error in admitting the default judgment was harmless.

         1. Clearly Established Federal Law

         Petitioner's claim challenges an evidentiary ruling, and to the extent that the admission of evidence about the default judgment may have violated Michigan's rules of evidence, the error is not cognizable on federal habeas review. Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

         Petitioner's constitutional argument is based on the Fifth Amendment, the Supreme Court's decision in Griffin v. California, 380 U.S. 609 (1965), and the Sixth Circuit's decision in Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000). The Fifth Amendment provides that, “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. In Griffin, the Supreme Court held that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” Griffin, 380 U.S. at 615. In Combs, the Sixth Circuit concluded that “the privilege against self-incrimination applies to a prearrest situation” and “that the use of prearrest silence as substantive evidence of guilt is an impermissible burden upon the exercise of that privilege.” Combs, 205 F.3d at 285.

         2. Application

         Petitioner does not dispute that the civil case against him occurred before his arrest on criminal charges. But even assuming that the Sixth Circuit's conclusion in Combs applies to the facts in this case, Combs “employed a pre-AEDPA standard.” Moore v. Mitchell, 708 F.3d 760, 787 (6th Cir. 2013). Petitioner's case, in contrast, is governed by AEDPA because he filed his petition long after AEDPA was enacted in 1996. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006). “Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a ‘claim that was adjudicated on the merits in State court proceedings' if the state court's decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.' 28 U.S.C. § 2254(d)(1).” Id.

         “[T]he Supreme Court has expressly declined to consider ‘whether or under what circumstances prearrest silence may be protected by the Fifth Amendment, ' ” Bond v. McQuiggin, 506 Fed.Appx. 493, 498 (6th Cir. 2012) (quoting Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980)), and “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' 28 U.S.C. § 2254(d)(1).” Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam). Consequently, Combs cannot form the basis for habeas relief under AEDPA. See id. at 48-49. “The lack of a Supreme Court decision regarding whether the prosecution may introduce evidence of a defendant's prearrest silence during its case in chief precludes federal habeas relief in this matter.” Mitchell v. Lafler, 118 Fed.Appx. 24, 27 (6th Cir. 2004).

         Furthermore, trial counsel informed the jury in his opening statement and closing argument that the default judgment was entered against Petitioner because Petitioner was not in a position to defend himself. (10/12/10 Trial Tr., at 98; 10/21/10 Trial Tr., at 121.) Trial counsel also pointed out that some of the churches had defaulted on lawsuits brought against them. (10/12/10 Trial Tr., at 99.)[1]

         Petitioner himself testified that the default judgment was entered because he lacked the necessary resources to defend against the lawsuit. He denied the suggestion that his failure to defend the civil case was because he agreed with the churches that he had defrauded them and taken their money. (10/20/10 Trial Tr., at 100, 122, 124.)

         Given Petitioner's testimony, trial counsel's arguments, and Petitioner's acquittal of four counts of fraud and one count of false pretenses, the alleged error could not have had a “substantial and injurious effect or influence” on the jury's verdict and, therefore, was harmless. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 766 (1946)). Although Petitioner maintains that the error was not harmless because he was forced to testify to explain the reason why he could not defend against the civil litigation,

the defendant in a criminal trial is frequently forced to testify himself or herself and call other witnesses in an effort to reduce the risk of conviction. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. Williams v. Florida, 399 U.S. 78, 83-84 (1970). The decision whether or not to testify necessarily implies some collateral limitations on one's ability to assert a claim or defense. Such difficult litigation choices do not, however, substantially infringe Fifth Amendment rights. Witter v. I.N.S., 113 F.3d 549, 555 (5th Cir. 1997). The Fifth Amendment does not insulate a defendant from all difficult choices that are presented during the course of criminal proceedings or even from all choices that burden the exercise or encourage the waiver of the right against self-incrimination. United States v. Frazier, 971 F.2d 1076, 1080 (4th Cir. 1992).

Holman v. Burt, No. 2:17-CV-11647, 2018 WL 627111, at *3 (E.D. Mich. Jan. 29, 2018) (unpublished).

         For all the reasons given above, the state appellate court's rejection of Petitioner's claim was objectively reasonable. Habeas relief is not warranted on Petitioner's claim.

         B. Trial Counsel

         Petitioner alleges next that his trial attorney was constitutionally ineffective for failing to (1) call material witnesses and present documentary evidence, (2) cross-examine or effectively cross-examine and impeach witnesses, and (3) object to the admission of a document and an incorrect statement made by counsel for co-defendant Perkins during closing arguments. The Michigan Court of Appeals adjudicated these claims on the merits and rejected them.

         1. Clearly Established Federal Law

         The “clearly established Federal law” for Petitioner's claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Cullen v. Pinholster, 563 U.S. 170, 1892011). Under Strickland, a defendant must show “that counsel's performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “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. “[T]he defendant must show that counsel's ...


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