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Jacques v. Perry

United States District Court, W.D. Michigan, Northern Division

February 21, 2019

RICHARD W. JACQUES, Petitioner,
v.
MITCH PERRY, Respondent.

          Honorable Robert J. Jonker, Judge

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Richard W. Jacques is incarcerated with the Michigan Department of Corrections at the Baraga Correctional Facility (AMF) in Baraga, Michigan. Following a jury trial in the Menominee County Circuit Court, Petitioner was convicted of operating a vehicle while intoxicated causing death, Mich. Comp. Laws § 257.625(4), and of leaving the scene of an accident that resulted in death, Mich. Comp. Laws § 257.617(3).[1] On February 24, 2012, the court sentenced Petitioner to concurrent prison terms of 7 to 15 years for each offense.

         On December 5, 2016, Petitioner timely filed his habeas corpus petition which raises eight grounds for relief, as follows:

I. Insufficient evidence to establish elements of proximate cause for driving while intoxicated causing death, in part due to no included offense, also therefore reversing guilt of leaving scene causing death with matching wording.
II. Trial court erred in scoring offense variable five for serious psychological injury to victim's family.
III. Admittance of defendant's statement to the police and suicide note, which is ineffective assistance by trial counsel and error of trial court.
IV. Expert witness allowed to testify in violation of Rule 702. Ineffective assistance of counsel and trial court error.
V. Ineffective assistance of counsel for failure to have lesser-included offense to count three when there were disputed factual elements. Responsibility for properly conducted trial rest also on trial court.
VI. Ineffective assistance of counsel for not objecting to prosecutorial misconduct.
VII. Ineffective assistance of counsel.
VIII. Ineffective assistance of counsel and abuse of trial court discretion for admission of statement which confused issues and not part of charge.

(Pet., ECF No. 1, PageID.6, 9, 11-12, 14.) Respondent has filed an answer to the petition (ECF No. 12) stating that the grounds should be denied because they are procedurally defaulted and/or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

         The facts set forth below are not in dispute. During the afternoon and evening of December 18, 2010, Petitioner and his best friend Brett Ingram were drinking. They drank in bars and they drank in restaurants. Eventually they picked up some beer at a gas station and traveled to a friend's camp. At some point later in the night, Brett left on foot. After fifteen or twenty minutes, Petitioner went after Brett in Petitioner's van. Petitioner's van was traveling down a gravel road away from the camp when he came upon Brett and struck him, killing Brett instantly.

         Petitioner was distraught. He gathered some of the bits and pieces of the van that were strewn in the roadway and drove 30 miles home. Once there, as he pondered his options, he fell asleep.

         When he woke the next morning, he drove back to the scene of the accident. He loaded his friend's frozen body into the van, and drove to the camp where Brett was living at the time. He ran a hose from the van exhaust through the back window of the van and waited to die. As he waited, he drafted a suicide note.

         The camp where Brett was living belonged to Brett's sister and brother-in-law, the Sindlers. They happened to visit the camp that afternoon. They found Petitioner, still alive, in the van. He acknowledged that he had killed Brett and that Brett's body was in the van. The Sindlers contacted the police.

         The prosecutor charged Petitioner with three crimes: operating the van while intoxicated causing death, leaving the scene of an accident Petitioner caused resulting in death, and moving a body without permission of the medical examiner. Petitioner was also charged with the lesser-included offense of violating Mich. Comp. Laws § 257.617(2), leaving the scene of an accident that results in death, which differs from a violation of Mich. Comp. Laws § 257.617(3) in that the former does not require that the accident be caused by the charged party.

         The trial judge recounted the theories of the parties as part of his final instructions to the jury:

The Prosecution's theory . . . is as follows: “Richard Jacques was intoxicated or visibly impaired or driving his van in a manner that caused the death of Brett Ingram. Richard Jacques was at fault. He then left the scene.”
The theory submitted . . . on behalf of the defendant is as follows: “It is the defendant's theory of the case that on December 18th, 2010, in Lake Township of Menominee County, a vehicle driven by the defendant was in an accident with a pedestrian, Brett Ingram. Under the facts and circumstances of that night, the pedestrian, Brett Ingram, was in the middle of a dark, two-lane roadway, and was an intervening, superseding cause, which was not reasonably foreseeable. Therefore, the Prosecution cannot prove beyond a reasonable doubt the proximate cause, which is a required element of Counts 1 and 3, and, therefore, the defendant is not guilty of those charges. Furthermore, the Prosecution cannot prove beyond a reasonable doubt that the defendant was operating a motor vehicle under the influence of alcohol, that is, because of drinking alcohol his mental or physical condition was significantly affected, and the defendant was no longer able to operate a vehicle in a normal manner. Therefore, another requirement of . . . Count 3 is unproven. As a result of that, the defendant is also not guilty of Count 3. It is the defendant's theory that the Prosecution can prove each and every element of Count 2 and Count 4, and, therefore, the defendant is guilty of those charges.”

(Trial Tr. X, ECF No. 13-16, PageID.1499-1500.)

         The prosecutor put on several witnesses who had observed Petitioner drinking or acting intoxicated that evening and other witnesses who heard Petitioner acknowledge that he had been drunk when he hit Ingram. The prosecutor also elicited testimony from an accident reconstruction expert who testified that Petitioner should have been able to stop. Defense counsel presented testimony from an opposing expert who testified that even a sober driver could not have avoided hitting Ingram.

         The jury deliberated for several hours and sought additional guidance on the meaning of “causation.” (Trial Tr. X, ECF No. 13-16, PageID.1515-1519.) In the end, however, the jurors concluded that Petitioner had caused the accident and entered their verdicts accordingly. (Id., PageID.1520-1522.) The trial court sentenced Petitioner as set forth above. (Sentencing Tr., ECF No. 13-17.)

         Petitioner, with the assistance of appointed counsel, directly appealed his convictions and sentences raising two issues, issues he also raises in his petition as Issues I and II. (Pet'r's Appeal Br., ECF No. 13-18, PageID.1580.) By unpublished opinion issued March 19, 2013, the Michigan Court of Appeals concluded that the prosecutor had presented sufficient evidence of causation and Petitioner's intoxication and that the trial court had properly scored Petitioner's sentencing guidelines variables. (Mich. Ct. App. Op., ECF No. 13-18, PageID.1568-1575.)

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he raised in the court of appeals. (Appl. for Leave to Appeal, ECF No. 13-19, PageID.1631-1645.) The Michigan Supreme Court denied leave by order entered November 25, 2013, because the court did not believe the questions presented should be reviewed. (Mich. Order, ECF No. 13-19, PageID.1630.) Petitioner sought reconsideration. (Mot. for Recon., ECF No. 13-19, PageID.1718-1724.) The court denied that relief as well. (Mich. Order, ECF No. 13-19, PageID.1629.)

         Petitioner returned to the trial court, filing a motion for relief from judgment raising several issues which roughly correspond to the issues raised in his habeas petition as Issues III-VIII. (Mot. for Relief from J., ECF No. 13-20.) The trial court summarily disposed of the motion in one sentence:

Defendant's Motion for Relief From Judgment is denied as it alleges grounds for relief which either were or could have been raised on appeal from the conviction and sentence.

(Menominee Cty. Cir. Ct. Order, ECF No. 13-21.) Petitioner sought leave to appeal that order, first in the Michigan Court of Appeals and then in the Michigan Supreme Court. Those courts denied leave by orders entered May 4, 2015, and November 30, 2016, respectively. (Mich. Ct. App. Order, ECF No. 13-22, PageID.1792; Mich. Order, ECF No. 13-23, PageID.1848.) This petition followed.

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which 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 standard of review recognizes the trier of fact's responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).

         The Jackson v. Virginia 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, 443 U.S. at 319. Moreover, because both the Jackson standard and AEDPA apply to Petitioner's claims, “the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals' consideration of the trier-of-fact's verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). This standard erects “‘a nearly insurmountable hurdle'” for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2008) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

         In resolving Petitioner's sufficiency challenge, the Michigan Court of Appeals applied the following standard:

We review a defendant's challenge to the sufficiency of the evidence de novo. People v. Meissner, 294 Mich.App. 438, 452; 812 N.W.2d 37 (2011). In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). However, we do not interfere with the factfinder's role of determining the weight of evidence or the credibility of witnesses. People v. Wolfe, 440 Mich. 508, 514; 489 N.W.2d 748, amended 441 Mich. 1201 (1992). It is for the trier of fact rather than this Court to determine what inferences can be fairly drawn from the evidence and to determine the weight to be accorded to the inferences. People v. Hardiman, 466 Mich. 417, 428; 646 N.W.2d 158 (2002). A prosecutor need not negate every reasonable theory of innocence, but must only prove his own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant provides. People v. Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of the crime. People v. Carines, 460 Mich. 750, 757; 597 N.W.2d 130 (1999). We resolve all conflicts in the evidence in favor of the prosecution. People v. Kanaan, 278 Mich.App. 594, 619; 751 N.W.2d 57 (2008).

(Mich. Ct. App. Op., ECF No. 13-18, PageID.1570-1571.) Although the court of appeals relied on state authorities, the standard it applied is functionally identical to the Jackson standard.

         Petitioner challenges the sufficiency of the prosecutor's evidence with regard to causation and intoxication. With regard to causation, Petitioner argued that the victim was extremely intoxicated and was walking in the middle of a dark, snowy road with his back to traffic, and that this conduct was grossly negligent. Such grossly negligent conduct, Petitioner claims, operated as an intervening cause that broke the causal link between Petitioner's conduct and Ingram's death.

         Petitioner contends that because the victim's conduct here was very much like the victim's conduct in another Michigan case, People v. Feezel, 783 N.W.2d 67 (Mich. 2010), and because the victim's conduct in Feezel broke the causation chain, the prosecutor's evidence was insufficient to show causation in Petitioner's case as well. Part of Petitioner's argument is focused on challenging the court of appeals' decision with respect to the proper interpretation of the elements of the offense per Feezel-elements that are compared to the evidence to measure sufficiency-and part of the argument is focused on the evidence.

         To the extent Petitioner's argument is directed to challenging the state court's identification of the elements of the criminal offense, it is not cognizable on habeas review. Jackson makes clear that state law determines the elements. Jackson, 443 U.S. at 324 n.16. It is not the province of a federal habeas court to re-examine state-law determinations on state-law questions. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991) (observing that the Supreme Court has “stated many times that federal habeas corpus relief does not lie for errors of state law”) (internal quotations and citations omitted). The decision of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The Sixth Circuit counsels “‘that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'” Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76). See also Thomas v. Stephenson, 898 F.3d 693, 700 n.1 (6th Cir. 2018) (same). The court of appeals' conclusion that the facts, as laid out by Petitioner, would not foreclose a finding that Petitioner proximately caused Ingram's death is, therefore, binding on this court and conclusively resolves that question.

         The appellate court did not stop with that analysis. The court went on to note that Petitioner had not laid out the facts consistently with the proper standard. (Mich. Ct. App. Op., ECF No. 13-18, PageID.1573-1574.) Petitioner simply looked to the evidence that favored him and concluded the evidence that did not favor him was not credible. In doing that, Petitioner turns the Jackson standard on its head. Applying the standard correctly, the court of appeals stated:

[The prosecutor's expert] testified that a sober, safe driver could have seen the victim and stopped the vehicle in time. Although defendant offered contrary expert testimony, we do not re-weigh the credibility of witnesses, and resolve all conflicts in evidence in favor of the prosecution. Wolfe, 440 Mich. at 514; Kanaan, 278 Mich.App. at 619. Thus, taken in the light most favorable to the prosecution, defendant's collision with the victim was quite literally foreseeable; that is, defendant should have been able to see and avoid the collision, even apart from his foreknowledge that the victim would be walking on the roadway. For all of these reasons, we find that the prosecution offered sufficient evidence to enable a rational juror to conclude that defendant's conduct was the proximate cause of the victim's death.

(Mich. Ct. App. Op., ECF No. 13-18, PageID.1573-1574.) With regard to causation, Petitioner fails to demonstrate that the Michigan Court of Appeals resolution of his sufficiency argument is contrary to, or an unreasonable application of, the clearly established federal law set forth in Jackson. Accordingly, he is not entitled to habeas relief on that claim.

         With respect to the issue of “intoxication, ” Petitioner's argument follows a similar pattern. First, he offers his interpretation of the elements-what the prosecutor must show-and then he lays out the evidence presented-but only in a light that favors him. Not surprisingly, the court of appeals rejected this argument with respect to intoxication as it had with respect to causation.

         Petitioner claimed that the “intoxication” evidence was insufficient because it was not established by chemical analysis or the testimony of a witness who actually observed the impaired driving. The court of appeals rejected that statement of the law:

Defendant is incorrect in his assertion that evidence of intoxication can only be established by “chemical analysis” or by testimony of a witness who observed the impaired driving. The case cited by defendant for that proposition does not so hold. People v. Calvin, 216 Mich.App. 403, 548 N.W.2d 720 (1996).

(Mich. Ct. App. Op., ECF No. 13-18, PageID.1574.) Instead, the appellate court explained, the evidence need only support the inference “that defendant was still visibly impaired by alcohol when he struck the victim.” (Id.) The state court's determination of the state law requirement binds this Court. See ...


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