United States District Court, E.D. Michigan, Southern Division
FRANK J. RICHARD, Plaintiff,
PAUL KLEE, Warden, Defendant.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS [1, 10]
J. MICHELSON UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.)
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).
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.
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.
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.
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.
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.
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.
Court now turns to the claims that Richard did exhaust (or,
at least, are arguably exhausted).
claims that the admission of his statements to the arresting
officers violated his Fifth Amendment rights.
better understand this claim, additional factual background
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.
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.)
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.)
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