Mell v. Skipper

          OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING THE MOTION FOR AN EVIDENTIARY HEARING, (3) DENYING A CERTIFICATE OF APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         James R. Mell, (“Petitioner”), confined at the Michigan Reformatory in Ionia, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for armed robbery, Mich. Comp. Laws § 750.529; six counts of unauthorized use of a financial transaction device, Mich. Comp. Laws § 750.157n(1); and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. BACKGROUND

         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, because they are presumed correct on habeas review. See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the armed robbery of 71-year-old Joyce Graham outside a Troy restaurant on the afternoon of January 9, 2013. As Graham walked to her car, a man wearing a black ski mask emerged from a vehicle, pointed a gun at her, and demanded her purse. Graham complied and the man drove away. Among other items, Graham's purse contained several credit cards, her cell phone, and car keys. Although the robber was wearing a ski mask, defendant's stature, race, and clothing were consistent with the robber's appearance, and the vehicle used during the offense was similar to a vehicle registered to defendant's fiancée, Louise Plewa. The police pinned Graham's cell phone in areas near the scene of the robbery, and, shortly after the robbery, defendant and Plewa were captured on surveillance video purchasing items with the stolen credit cards at different establishments. Graham's purse containing her wallet and keys, her eye glasses, property purchased with the stolen credit cards, a ski mask, and simulated guns were found in defendant and Plewa's home, which was a quarter mile from the restaurant where the armed robbery occurred. Graham's cell phone, two simulated guns, and receipts from establishments where the stolen credit cards were used were found in Plewa's vehicle, which defendant was driving when he was arrested. At trial, the defense admitted that defendant participated in using the stolen credit cards, but denied that he was the person who robbed Graham of her property. The defense theory was that defendant was misidentified as the robber and was unaware of how Plewa acquired the credit cards. The defense noted that, shortly after the robbery, the police investigated another white male, who was driving a similarly-described SUV with a similar license plate number.

People v. Mell, No. 316808, 2014 WL 6852989, p. 1 (Mich. Ct. App. Dec. 4, 2014).

         Petitioner's conviction was affirmed on appeal. Id.; lv. den. 498 Mich. 872, 868 N.W.2d 621 (2015); reconsideration den. 499 Mich. 859, 873 N.W.2d 557 (2016).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Mell, No. 13-244740-FC (Oakland Cty.Cir. Ct. Apr. 13, 2017). The Michigan appellate courts denied petitioner leave to appeal. People v. Mell, No. 340062 (Mich.Ct.App. Feb. 20, 2018); lv. den. 503 Mich. 886, 919 N.W.2d 47 (2018).

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

I. Categorically defining prosecutorial misconduct not only decimating rights guaranteed Petitioner by our United States Constitution's Fifth, Sixth, and Fourteenth Amendments, but so infecting the proceedings with unfairness as to result in a complete deprivation of due process, were trial errors stemming from government utilization of pervasive bad character attacks; post-Miranda and trial silence; a fictitious Confrontation Clause-violating accomplice confession; false evidence and perjury; material misstatements; reasonable doubt denigration; and emotionally inflammatory argument and evidence.

II. Where appointed counsel abandoned Petitioner at a critical stage of the proceedings; failed to perform investigation of any kind; refused to seek a continuance; forced Petitioner to waive his rights to testify and present an exonerating witness; refused to present a substantial defense; acquiesced with prosecutorial misconduct; failed to oppose inadmissible evidence; and accepted the presence of biased jurors, Petitioner was denied both a fundamentally fair trial and the effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

         II. STANDARD OF REVIEW

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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, 405-06 (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 410-11.

         “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 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.” Id. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         The Court notes that the Michigan Court of Appeals reviewed and rejected petitioner's prosecutorial misconduct claims under a plain error standard because he failed to preserve the issues as a constitutional claim at the trial court level. The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017); cert. den. 138 S.Ct. 1998 (2018).^[1]

         III. DISCUSSION

         A. Claim # 1. The prosecutorial misconduct claims.

         Petitioner first argues he was denied a fair trial because of prosecutorial misconduct.

         “Claims of prosecutorial misconduct are reviewed deferentially on habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor's improper comments will be held to violate a criminal defendant's constitutional rights only if they “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will provide a basis for habeas relief only if the conduct was so egregious as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his prosecutorial misconduct claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012)(quoting Harrington, 562 U.S. at 103). Habeas petitioners must clear a “high bar” to prevail on a prosecutorial misconduct claim. Stewart v. Trierweiler, 867 F.3d at 639.

         Petitioner first claims that the prosecutor committed misconduct and violated M.R.E. 404(b)'s prohibition on using prior bad acts when he repeatedly brought up petitioner's alcohol use and drunk driving at trial. The Michigan Court of Appeals rejected this claim:

Defendant complains that on several occasions in opening statement and closing argument, the prosecutor referenced defendant's alcohol consumption. As plaintiff aptly notes, evidence at trial revealed that a great deal of alcohol was purchased with the stolen credit cards, alcohol was found in defendant and Plewa's home during the execution of a search warrant, defendant blamed his use of alcohol for the faultiness of his recollection regarding the time surrounding the offenses, and the desire to obtain alcohol was posited as a motive for the crimes. Given the evidence adduced at trial, the prosecutor's references to defendant's alcohol consumption were proper comments on the evidence and reasonable inferences arising from the evidence.

People v. Mell, 2014 WL 6852989, p. 17 (internal citation omitted).

         In the present case, the Michigan Court of Appeals determined that the prosecutor's references to petitioner's alcohol use were relevant to the prosecutor's theory of the case. A prosecutor does not commit misconduct by bringing up a habeas petitioner's prior bad acts when such bad acts are relevant to the prosecutor's case. See Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008).

         Petitioner next contends that the prosecutor improperly commented on petitioner's post-Miranda silence when he made the following remarks in closing argument:

Now, one very important thing. Mr. Kaluzny [defense counsel] began his closing argument with the assertion that the defendant is here saying he's not guilty. He is not. The defendant is not saying anything. And that is not evidence that he's not guilty. And it is not evidence that he is guilty.

The fact that the defendant is on trial is not evidence of anything. He has not said anything to you. And as Mr. Kaluzny said, you may not use that against him and that is absolutely correct. But you also cannot give him things he doesn't deserve.

He didn't say anything. And he doesn't deserve to have you say, oh, he's asserting that he's not guilty. He's not. He never said that. He has never said anything. And that can't be used against him. Of course, that's absolutely right. Except he did say in this, how much time am I looking at?

(Tr. 5/23/13, pp. 171-72).

         It is a violation of the Due Process clause of the Fourteenth Amendment for the prosecution to use a defendant's post-arrest silence after he has been given Miranda warnings to impeach exculpatory testimony given by the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 619 (1976). However, a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent, because as to the subject matter of the statements, defendant has not remained silent at all. Anderson v. Charles, 447 U.S. 404, 408 (1980). The prosecutor did not improperly comment on petitioner's post-Miranda silence because the prosecutor's reference was to a comment that petitioner had made prior to exercising his right to remain silent when he had asked the detective how much time that he was looking at for the crime. Petitioner only invoked his right to remain silent later in the interview. Because petitioner chose to speak with the police after his Miranda warnings had been given, the prosecutor's remarks about petitioner's inquiries into his possible sentence did not impermissibly comment upon petitioner's post-arrest silence.

         Petitioner further contends that the prosecutor committed misconduct by introducing evidence that petitioner had requested during the police interview to speak with an attorney.

         Although the Doyle rule was established in the context of a defendant's invocation of Miranda's right to remain silent, it also applies to an invocation of the right to counsel. See Wainwright v. Greenfield, 474 U.S. 284, 295, n. 13 (1986).

         The parties had agreed to redact the portion of the detective's interview with petitioner, where petitioner had invoked his right to counsel. However, the detective while testifying about the interrogation mentioned that petitioner had asked to speak with an attorney. After the detective testified, the defense counsel indicated that this reference to petitioner's request for counsel should have been crossed off the interview sheet and that counsel himself may have been at fault for not doing so. The prosecutor agreed to redact the reference to petitioner's request for counsel from the interview sheet before it was given to the jury. People v. Mell, 2014 WL 6852989, pp. 5-6.

         There is no indication that the failure to redact the police interview was anything other than inadvertent. Moreover, in light of the overwhelming evidence of guilt, the prosecutor's failure to redact the police interview to remove references to petitioner's invocation of his right to counsel was harmless error because it “had no substantial and injurious effect or influence in determining the jury's verdict.” United States v. Perkins, 204 Fed.Appx. 799, 807 (11th Cir. 2006).

         Petitioner next contends that the prosecutor violated his Sixth Amendment right to confrontation by admitting into evidence the out-of-court statement made by his co-defendant to the police. The Michigan Court of Appeals rejected this claim:

Plewa's statement was not offered to prove the truth of the matter asserted, i.e., to prove that defendant robbed Graham, or for the purpose of establishing the truth of Plewa's statement during the interview. Rather, Plewa's statement was offered to provide context for the police interview, that is, to show what information was conveyed to defendant to prompt his responses, and to show defendant's reaction to Plewa's statement while giving his own statement. Plewa's statement provided context for understanding and evaluating defendant's answers. “[A] statement offered to show the effect of the out-of-court statement on the hearer does not violate the Confrontation Clause.” Because the statement was used for the limited purpose of providing context for defendant's responses and not to prove the truth of the matter asserted, it did not constitute hearsay, or a statement of an absent declarant such that defendant's confrontation rights were violated.

People v. Mell, 2014 WL 6852989, p. 7 (internal citation omitted).

         Where a co-defendant's incriminating confession is admitted at a joint trial and the co-defendant does not take the stand, a defendant is denied the constitutional right of confrontation, even if the jury is instructed to consider the confession only against the co-defendant. Bruton v. United States, 391 U.S. 123, 127-28 (1968).

         The nonhearsay aspects of a co-defendant's confession, which are offered not to prove what happened at the scene of a crime, but what happened when the defendant confessed, raise no Confrontation Clause concerns. Tennessee v. Street,471 U.S. 409, 414 (1985). Therefore, admission of a non-testifying witness' statements into evidence does not violate the Sixth Amendment right to confrontation where the evidence is not admitted for its truth, but rather, to show the context of a defendant's statements, confessions, or admissions. See Cargill v. Turpin,120 F.3d 1366, 1373-75 (11th Cir. 1997); United States v. Davis,890 F.2d 1373, 1380 (7th Cir. 1989). Stated differently, where a non-testifying co-defendant's statement is not admitted for its truth, but to shed light on the circumstances under which a defendant made his own confession to the police, it is not ...