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Richard v. Klee

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

May 17, 2019

FRANK J. RICHARD, Plaintiff,
v.
PAUL KLEE, Warden, Defendant.

          OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS [1, 10]

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE.

         Around 1:00 a.m. on June 23, 2009, two police officers, Daniel Main and Scott McDonald, responded to a 911 call. When they arrived on scene, a rooming house in Pontiac, Michigan, Main saw a dead body out front. Then Main saw Frank Richard walk out of the rooming house. Richard was covered in blood. Main handcuffed Richard and “asked him if there was anyone else inside the apartment. After [Richard] responded affirmatively, the officers asked [him] if this person was responsible for the victim's death, and [Richard] said ‘No. I stabbed him.' [Richard] then gave the police multiple conflicting versions of what transpired.” People v. Richard, No. 300469, 2012 WL 832807, at *1 (Mich. Ct. App. Mar. 13, 2012). The body was identified as Andre Betty.

         The State of Michigan charged Richard with open murder (in Michigan, the prosecutor need not specify first degree, second degree, or manslaughter). Prior to trial, Richard attempted to suppress the statements he had made to Main and McDonald when he was arrested. His motion was denied. At trial, Richard argued self-defense (a defense which Richard claims was necessitated by the denial of his motion to suppress). Richard presented evidence that both he and Betty were heavily intoxicated. (The autopsy revealed that Betty had consumed about 15 drinks and Richard testified to having consumed a similar amount of alcohol.) Under Richard's account, Betty tried to attack or stab him while the two were in the rooming house and so, in defense, Richard stabbed Betty. But the jury also heard Main and McDonald's testimony that, at the time of his arrest, Richard had given various accounts about what had happened, only some of which involved self-defense. And the jury heard that not long before Betty's death, Richard had called Betty a racial slur and said he was going to kill Betty because Betty was a crack dealer. In the end, the jury convicted Richard of second-degree murder. Richard was sentenced to a minimum of 25 years in state prison.

         Richard appealed but without success. See People v. Richard, No. 300469, 2012 WL 832807 (Mich. Ct. App. Mar. 13, 2012); People v. Richard, 817 N.W.2d 106 (Mich. 2012). Richard also sought post-conviction relief in state court, but that too was unsuccessful.

         Richard now seeks a writ of habeas corpus from a federal court. (ECF No. 1, 10.) As will be explained in detail below, some of Richard's claims for the writ are not exhausted and are defaulted. Others are barred by 28 U.S.C. § 2254(d) because the Michigan Court of Appeals reached the merits of the claims and the state appellate court's decision did not involve an unreasonable application of Supreme Court precedent. Finally, to the extent that Richard properly presented claims to the Michigan Court of Appeals that the state court did not address, this Court finds that those claims do not warrant habeas corpus relief. So Richard's request for a writ will be denied.

         I.

         The Court first considers five of Richard's claims for a writ of habeas corpus that are not exhausted. One. Richard says trial counsel failed to adequately investigate the prosecution's witnesses, including Robert Walker. (ECF No. 10, Br. in Supp. at 13.) Two. Richard says that trial counsel failed to challenge the prosecution's reference to or use of his psychological evaluation. (ECF No. 10, Br. in Supp. at 14.) Three. Richard asserts ineffective assistance of appellate counsel. (ECF No. 10, Br. in Supp. at 15.) Four. Claim IV of Richard's petition (which is labeled Claim III in his original petition (ECF No. 1)) asserts that the prosecution's reference to or use of his psychological evaluation violated patient-doctor privilege and the Confrontation Clause (ECF No. 10, Br. in Supp. at 24-25.) Five. Richard asserts that the prosecutor violated his rights under Doyle v. Ohio, 426 U.S. 610 (1976), by asserting that trial was the “first time” Richard said he was in a fight and needed to defend himself. (ECF No. 10, Br. in Supp. at 26.)

         These five claims were not exhausted via direct appeal. (See generally ECF No. 14, PageID.530-555.) True, in his brief to the Michigan Court of Appeals, Richard raised an ineffective-assistance-of-trial-counsel claim and generally asserted that trial counsel had not “properly investigate[d] his case.” But there is no claim that trial counsel should have researched Walker in greater detail or that trial counsel should have sought adjournment because the prosecution disclosed Walker only 10 days before trial. (See ECF No. 14, PageID.540-541.) Nor is there any claim about the prosecution's use of Richard's psychological report, trial counsel's failure to object to that use, or the prosecution's “first time” reference. (See generally ECF No. 14, PageID.530-555.) And, obviously, appellate counsel did not assert that she was ineffective. Because these five claims were not presented to the Michigan Court of Appeals, and because the Michigan Supreme Court did not grant Richard leave to appeal, People v. Richard, 817 N.W.2d 106 (Mich. 2012), Richard did not exhaust these claims on direct appeal. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the necessary ‘opportunity' [to correct alleged violations of its prisoners' federal rights] the prisoner must ‘fairly present' his claim in each appropriate state court[.]” (emphasis added)); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (similar); Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009) (similar).

         So that means that the only way the five claims identified above could have been exhausted is if Richard exhausted them via a motion for relief from judgment and associated appeals. But that too is not the case. Having reviewed the Rule 5 materials and all the state court dockets (available online), Richard did not appeal the denial of his first motion for relief from judgment. And while Richard filed a second motion for relief from judgment, the state trial court found that it did not “fit within any of the exceptions in” Michigan Court Rule 6.502(G). That rule provides that, with two exceptions, “one and only one motion for relief from judgment may be filed with regard to a conviction.” Mich. Ct. R. 6.502(G)(1) (emphasis added). Thus, the state trial court found that Richard's second motion for relief from judgment was procedurally improper. Richard sought leave to appeal that ruling, but the Michigan Court of Appeals and Michigan Supreme Court also thought that 6.502(G) barred the second motion. (ECF No. 14, PageID.622); People v. Richard, 886 N.W.2d 890 (Mich. 2016). In short, Richard did not appeal his first motion for relief from judgment and his second motion for relief from judgment was procedurally improper, see Castille v. Peoples, 489 U.S. 346, 351 (1989); so whatever claims Richard presented in those two motions were not exhausted.

         Thus, Richard's claims about counsel's failure to investigate prosecution witnesses (including Walker), about the prosecution's use of his psychological report and his counsel's response to it, about the prosecution's “first time” reference, and about his appellate counsel are all not exhausted. The question thus becomes what to do with Richard's mixed habeas corpus petition.

         One possibility would be to let Richard go exhaust these claims. See Rhines v. Weber, 544 U.S. 269 (2005). But, as noted, Michigan Court Rule 6.502(G) generally permits only one motion for relief from judgment. And the two limited exceptions do not apply here. Nothing suggests that Richard's claims are based on “new evidence that was not discovered before” Richard's first motion for relief from judgment. Mich. Ct. R. 6.502(G)(2). Richard does have a 2015 affidavit, which was after his first motion for relief from judgment; but the affidavit is his own and its content strongly suggests that Richard could have made the same allegations when he filed his first motion for relief from judgment. (ECF No. 14, PageID.488-489, 501.) Nor are the five unexhausted claims “based on a retroactive change in law that occurred after the first motion for relief from judgment.” Mich. Ct. R. 6.502(G)(2). So the five unexhausted claims are not now exhaustible. That means they are procedurally defaulted.

         And a federal court can only address defaulted claims on the merits if there is a way around the procedural bar. That would be true if Richard shows “cause for the default and prejudice resulting therefrom, or that failing to review the claim[s] would result in a fundamental miscarriage of justice.” Williams v. Anderson, 460 F.3d 789, 805-06 (6th Cir. 2006). But Richard has not made, and quite likely cannot make, the required showing.

         As for the cause-and-prejudice route, Richard might be able to show that appellate counsel was ineffective for failing to raise four of the five unexhausted claims. But even assuming so, Richard has not explained why he could not have exhausted all five claims himself via motion for relief from judgment. See Gadomski v. Renico, 258 Fed.Appx. 781, 784 (6th Cir. 2007). Indeed, it appears that Richard eventually presented some if not all five of these claims at some point during the collateral review process. The problem is that Richard did not present all five claims in his first motion for relief from judgment and then seek leave to appeal the denial of that motion from both the Michigan Court of Appeals and the Michigan Supreme Court.

         As for the fundamental-miscarriage-of-justice exception, Richard would have to “present new reliable evidence showing that he is actually innocent.” Dufresne v. Palmer, 876 F.3d 248, 256 (6th Cir. 2017). Richard has not identified any such evidence and the Court's review of the record has not uncovered any.

         II.

         The Court now turns to the claims that Richard did exhaust (or, at least, are arguably exhausted).

         A.

         Richard claims that the admission of his statements to the arresting officers violated his Fifth Amendment rights.

         To better understand this claim, additional factual background is necessary.

         Prior to trial, Richard's counsel moved to suppress Richard's statements to the police. At the evidentiary hearing on the motion (commonly referred to as a Walker hearing in Michigan courts), three police officers and Richard testified.

         Officer Daniel Main testified that when he arrived on scene, he saw the victim, Betty, lying on the stairs leading to the rooming house. (ECF No. 14, PageID.251.) Main then saw Richard walk out front of the rooming house with “his hands and feet . . . covered in blood.” (Id.) Main handcuffed Richard. (Id.) Main then asked Richard if there was anyone else inside. (Id.) And, according to Main, this exchange occurred: “we asked him who did this. . . . He said I stabbed him.” (Id.)

         Officer Scott McDonald's testimony at the Walker hearing was a bit different. According to McDonald, when Richard was first asked if there was anyone else inside, “[Richard] responded by saying there's another black guy in there. . . . He was asked if [that guy] was the one who had done this and he said yes.” (ECF No. 14, PageID.262.) But then, said McDonald, Richard gave two other accounts. McDonald recalled that Richard gave a “second story” that Betty had attacked him and that he had defended himself. (Id.) McDonald added, “[t]he third story was that there was another black man who had come in and stabbed [Betty] after calling [Betty] a snitch.” (Id.) McDonald testified that after speaking with Richard, he and Main went into the apartment where the victim had been stabbed while a third officer (“Mickens”) stayed with Richard out front. (ECF No. 14, PageID.281.) After clearing the apartment, McDonald and Main went back outside where, according to McDonald, Richard began making more statements. (ECF No. 14, PageID.263.) McDonald told the trial judge the following: “after . . . checking [the] apartment and coming back out [Richard] had started to make some more statements about the knife and things of that sort when I realized he was incriminating himself I advised him of his Miranda rights.” (ECF No. 14, PageID.263.)

         Richard also testified at the Walker hearing. He said that he had drunk a “fifth” of 100 proof bourbon. (ECF No. 14, PageID.302.) (That is the equivalent of about 16 shots.) Richard did not recall being Mirandized by McDonald on the front porch. In fact, Richard testified, “I was ...


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