Aguilar v. Palmer

          HONORABLE PAUL L. MALONEY JUDGE

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner John Aguilar is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Michigan. On May 10, 2013, following an eight-day trial, a Kalamazoo County Circuit Court jury convicted Petitioner of first-degree murder, ^[1] first-degree home invasion, and armed robbery. On June 10, 2013, the court sentenced Petitioner as a fourth habitual offender to life imprisonment without parole on the murder conviction, 25 to 75 years imprisonment on the home invasion conviction, and 35 to 75 years on the armed robbery conviction.

         On August 10, 2017, Petitioner timely filed his habeas corpus petition raising three grounds for relief, as follows:

I. The state court decision was contrary to, or involved an objectionably unreasonable application of clearly established federal law, and/or an objectionably unreasonable determination of the facts in light of evidence presented in the trial court, when it denied that the court of appeals decision was erroneous when it denied that the trial counsel was not ineffective in permitting evidence of prior bad acts, failing to object to one witness commenting on another witness' testimony, and permitting a witness to comment on the ultimate question of whether defendant was guilty.

II. The state court decision was contrary to, or involved an objectionably unreasonable application of clearly established federal law, and/or an objectionably unreasonable determination of the facts in light of evidence presented in the trial court, when it denied that the court of appeals decision was erroneous when it denied that the trial court did not err when it failed to grant Defendant's motion for a change of venue because the court followed the suggested steps to minimize the prejudice of pretrial publicity.

III. The state court decision was contrary to, or involved an objectionably unreasonable application of clearly established federal law, and/or an objectionably unreasonable determination of the facts in light of evidence presented in the trial court, when it denied that the trial court erred in assessing $2, 589.00 in court costs and fees based on the general operating costs of operating the courthouse because costs are limited to the specific expenses of the case and do not include operating expenses which are properly borne by the public as a whole and not the individual defendant.

(Pet., ECF No. 1, PageID.3-7.) Respondent has filed an answer to the petition (ECF No. 10) stating that the grounds should be denied because they are without merit, procedurally defaulted, and/or noncognizable. 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 and/or noncognizable. Accordingly, I recommend that the petition be denied.

         Discussion

         I. Factual allegations Petitioner was convicted of invading the home of, robbing, and murdering Robert Medema. The Michigan Court of Appeals described the trial testimony as follows:

The jury heard testimony that defendant encountered Medema when Medema purchased a cross at defendant's garage sale and displayed a large amount of cash. There was evidence that, on a daily basis, Medema visited his friend who lived across the street from defendant. The jury was presented with evidence that, following Medema's purchase of the cross, defendant followed him to learn where he lived. [Antonio] Livingston testified that on August 10, 2012, he and defendant went to Medema's house. He further claimed that, after they received a call from Elizabeth Summers, who told them that Medema had left his friend's house, Livingston entered the house through a window the two men had broken and waited for Medema. Livingston testified that, after Medema came home and saw him, he hit him at least five times in the head with a baseball bat and stole his money. Livingston stated that after this incident, he, defendant, and Summers went to Detroit, where defendant cleaned his pickup truck, leaving it “immaculate.”

(Mich. Ct. App. Op., ECF No. 11-15, PageID.1879) (footnote omitted).^[2] Although the court of appeals was able to summarize the key testimony in a paragraph, the jurors heard testimony for six days. They deliberated for an entire day before returning their verdict.

         Petitioner, with the assistance of counsel, appealed his convictions to the Michigan Court of Appeals. Petitioner filed two briefs. In the brief filed with the assistance of counsel, Petitioner raised the three-pronged ineffective assistance of counsel claim included as issue I in his petition. In Petitioner's supplemental pro per brief, Petitioner raised the venue issue included as issue II in his petition. By unpublished opinion issued November 20, 2014, the Michigan Court of Appeals affirmed Petitioner's convictions. (Mich. Ct. App. Op., ECF No. 11-15, PageID.1879-1882.)

         Petitioner then filed a pro per application for leave to appeal the court of appeals decision in the Michigan Supreme Court. In his application, Petitioner raised, for the first time, the court costs issue included in his petition as issue III. On July 26, 2016, the supreme court, in lieu of granting leave, remanded the costs issue to the trial court. (Mich. Order, ECF No. 11-16, PageID.1970.) In all other respects, however, the supreme court denied leave to appeal. (Id.)

         On August 16, 2016, the trial court affirmed its prior assessment of costs. (Kalamazoo Cty. Cir. Ct. Docket Sheet, ECF No. 11-1, PageID.197.) Petitioner did not appeal that order. Instead, he filed his habeas petition in this Court.

         II. AEDPA standard

         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, 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); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); 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).

         III. Court costs (habeas issue III)

         Petitioner argues that the trial court's assessment of $794 in miscellaneous costs is not authorized by Michigan statute. Petitioner's claim is not cognizable on habeas review. In Washington v. McQuiggin, 529 Fed.Appx. 766 (6th Cir. 2013), the Sixth Circuit Court of Appeals considered the limits of habeas jurisdiction with regard to orders to pay fines or restitution. The court explained that under § 2254 subject matter jurisdiction exists only for claims that a person is “in custody” in violation of the Constitution or laws of the United States. Washington, 529 Fed.Appx. at 772-773 (citing Dickerson v. United States, 530 U.S. 428, 439 n.3 (2000) (quoting 28 U.S.C. § 2254(a)). Orders compelling the payment of fines or restitution, therefore, “fall outside the scope of the federal habeas statute because they do not satisfy the ‘in custody' requirement of a cognizable habeas claim.” Id. at 773; see also United States v. Watroba, 56 F.3d 28 (6th Cir. 1995) (holding that § 2255 does not grant subject matter jurisdiction over restitution orders); Michaels v. Hackel, 491 Fed.Appx. 670, 671 (6th Cir. 2012) (stating that a fine is not cognizable under § 2254 and citing Watroba, 56 F.3d at 29); Kennedy v. Nagy, No. 18-1463, 2018 WL 3583212, at *2 (6th Cir. July 12, 2018) (“Kennedy argues that the trial court erred by ordering him to pay restitution, court costs, and attorney's fees without first considering his financial situation . . . [T]hese claims are not cognizable in a federal habeas proceeding because noncustodial punishments do not satisfy the ‘in custody' requirement of § 2254.”).

         The fact that a petitioner might be subject to a custodial penalty does not make available to him collateral relief from a noncustodial punishment such as an order to pay fines or restitution. Washington, 529 Fed.Appx. at 773.

         Petitioner has not been ordered to pay fines or restitution; he has been ordered to pay court costs. In Washington, the noncustodial penalty at issue was not an order to pay fines or restitution either-it was an order to pay attorney's fees. That difference, however, did not make Washington's claim cognizable on habeas review:

For habeas purposes, it is difficult to distinguish-and Washington does not attempt to distinguish-an order imposing attorney's fees from a fine or restitution order. Although the question of whether a claim satisfies the “in custody” requirement is to some extent one of degree, Nelson v. Campbell, 541 U.S. 637, 646 (2004), a fee-repayment order falls outside of even “the margins of habeas, ” id., because it is “not a serious restraint on . . . liberty as to warrant habeas relief.” Tinder, 725 F.2d at 805; Bailey, 599 F.3d at 979 (quoting Tinder).

Washington, 529 Fed.Appx. at 772-73. For the same reasons, Petitioner's habeas challenge to the costs imposed upon him is without merit because it is outside the scope of the federal habeas statute.^[3]

         IV. Venue change due to pretrial publicity (habeas issue II)

         Petitioner argues that he was denied a fair and impartial jury. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” U.S. Const. amend. VI. The right to an impartial jury is applicable to the states via the Fourteenth Amendment. See Turner v. Louisiana, 379 U.S. 466, 471-72 (1965); Irvin v. Dowd, 366 U.S. 717, 722 (1961). Further, “due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment.” Morgan v. Illinois, 504 U.S. 719, 727 (1992) (citations omitted).

         If potential jurors have been exposed to prejudicial pretrial publicity, “it jeopardizes a defendant's right to a fair trial by an impartial jury . . . .” Campbell v. Bradshaw, 674 F.3d 578, 593 (6th Cir. 2012). The prejudice resulting from pretrial publicity can be presumptive or actual. Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007). “Presumptive prejudice from pretrial publicity occurs where an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community.” Id.

         Petitioner has the burden of demonstrating the existence of prejudice. Sheppard v. Maxwell,384 U.S. 333, 353 (1966). Petitioner notes that the victim here was a well-known and respected member of the community and that the crime garnered significant media attention.^[4] He claims that clearly established federal law requires a presumption of prejudice here. But, Petitioner identifies nothing in the record to support his claim of a “circus-like” atmosphere that might warrant a presumption of prejudice here. In fact, when the trial judge asked the jury venire for a show of hands with respect to how many had heard about the case, only about a quarter of the potential jurors raised their hands. (Trial Tr. I, ECF No. 11-6, PageID.429.) Moreover, though Petitioner's counsel moved for a change of venue based on pretrial publicity (Mot. Hr'g Tr., ECF No. 11-5, PageID.344; Trial Tr. I, ...