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