United States District Court, W.D. Michigan, Northern Division
RICHARD W. JACQUES, Petitioner,
MITCH PERRY, Respondent.
Honorable Robert J. Jonker, Judge
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE
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). On February 24, 2012, the court sentenced
Petitioner to concurrent prison terms of 7 to 15 years for
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
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.
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.
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.
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.
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
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.
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
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
(Trial Tr. X, ECF No. 13-16, PageID.1499-1500.)
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
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.)
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.)
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.)
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.
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
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).
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).
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).
§ 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
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.
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
(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
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
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.
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.
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.
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
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