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Ford v. MaClaren

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

September 25, 2019

JOSEPH JAY FORD, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          HONORABLE GORDON J. QUIST JUDGE.

          REPORT AND RECOMMENDATION

          Maarten Vermaat United States Magistrate Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Joseph Jay Ford is incarcerated with the Michigan Department of Corrections at the Kinross Correctional Facility (KCF) in Kincheloe, Michigan. Following a six-day jury trial in the Kent County Circuit Court, Petitioner was convicted of one count of operating a vehicle while intoxicated (OWI) causing death and one count of a moving violation causing death. On May 14, 2014, the court sentenced Petitioner as a third habitual offender to concurrent prison terms of 12 years, 6 months to 30 years for the OWI offense and 1 year for the moving violation offense.

         On July 26, 2017, Petitioner timely filed his habeas corpus petition raising three grounds for relief, as follows:

I. Trial court failed to suppress the hospital blood draw.
II. Insufficient probable cause for the search warrant to draw Petitioner's blood. Michigan State Police blood draw should have been suppressed.
III. Trial court violated due process and engaged in judicial fact finding at sentencing.

(Pet., ECF No. 1, PageID.6-7.) Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied because they are noncognizable or without merit. 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 noncognizable or without merit. Accordingly, I recommend that the petition be denied.

         Discussion

         I. Factual allegations

         On October 10, 2013, Petitioner ran a red light at the intersection of 36th Street and Patterson Avenue in Kentwood, Michigan. He collided with a vehicle driven by Eric Fischer. Andrea Herrera, a passenger in Fischer's vehicle, died by the time she arrived at the hospital. Fischer died on the operating table. The Michigan Court of Appeals summarized the relevant trial evidence as follows:

A forensic pathologist testified that both victims had died as a result of the collision. Fischer's blood alcohol level was .11 percent at autopsy, although the pathologist was unsure whether the test was serum or whole blood. The pathologist testified that Fischer's blood alcohol level was not a significant contributing factor to his death.
Kent County Deputy Christopher Goehring testified that he spoke with defendant while defendant was in the back of an ambulance. He could smell a moderate amount of alcohol coming from defendant. Defendant told Goehring that he could not remember the whole night. He remembered where he was coming from, but nothing else. Defendant also said that he had had two beers. Other than the smell of alcohol and defendant's admission that he had been drinking, Goehring did not note any signs that defendant was intoxicated. The ambulance took defendant to St. Mary's Hospital. Goehring also went to the hospital.
Dr. Julie Shanaver, an emergency room physician at St. Mary's Hospital, treated defendant. For medical purposes, she requested a chemical analysis of defendant's blood. Defendant's blood was drawn at 11:37 p.m. Defendant's blood alcohol result was .125 percent. The hospital uses a serum test.
At the hospital, Goehring filled out an affidavit for a search warrant for defendant's blood. The warrant was signed by a magistrate. Suanne Unger, a nurse in the emergency room, drew two samples of defendant's blood at 12:04 a.m. and 12:05 a.m. on October 11, 2013. The samples were sent to the Michigan State Police (MSP) crime laboratory.
After defendant was released from the hospital, Goehring arrested defendant and then interviewed him. Defendant waived his Miranda rights. Defendant said that he remembered more. He had dropped his friend off in Kentwood and then got lost. He made a wrong turn, and then was going north on Patterson. He approached the 36th Street intersection; the light was green. The black Mazda entered the intersection and there was an accident. He was going the speed limit, which was 55 miles per hour. He had had two beers earlier that night.
Experts from the MSP crime laboratory testified that the two samples of defendant's blood showed a blood alcohol level .086 and .088 percent by whole blood test. Further, controlled substances were found in defendant's blood, including amphetamines, morphine, and promethazine and promethazine metabolite.
Michele Glinn testified as an expert in forensic toxicology, the analysis of blood, and procedures for a crime laboratory. Glinn reviewed the results and reports from the crime laboratory and St. Mary's Hospital. Glinn testified that “whole blood” is blood that comes from a person's arm. It contains red and white blood cells, as well as other proteins and clotting factors. Hospitals often separate out the red blood cells and proteins, ending up with the water fraction of the blood. Depending on the amount of filtering, this part of the blood is plasma or serum. According to Glinn, because “alcohol partitions into the water, ” the serum alcohol level is higher than the whole blood alcohol level. By reducing a serum alcohol level by 16 or 18 percent, one can obtain the whole blood alcohol level. According to Glinn, if defendant's serum alcohol level was reduced by 16 percent, his whole blood alcohol level was .105 percent for the hospital blood draw. Glinn further testified that, because a body metabolizes alcohol, the difference in time between the blood draws for the hospital and for the police could explain the difference in the whole blood alcohol levels. Specifically, because the blood draw for the police was done at a later time, Glinn would expect that the alcohol level in the blood from that draw to be lower than in the blood drawn for the hospital. According to Glinn, a decrease in defendant's blood alcohol level from .105 to .087 percent is consistent with the general metabolic range. Glinn further testified that the amphetamine level of defendant's blood was consistent with one dose of the prescription medication Adderall.

(Mich. Ct. App. Op., ECF No. 8-16, PageID.540-542.)[1]

         The jurors deliberated for an entire day. They appeared to struggle with reconciling victim Eric Fischer's blood alcohol test results with the conclusion that Petitioner had caused Fischer's death by operating a vehicle while intoxicated. (Trial Tr. VI, ECF No. 8-13.) That struggle was manifested in the jury's questions for the trial court and in the jury's seemingly inconsistent resolution of the charge that Petitioner caused the deaths of the two victims by operating a vehicle while intoxicated. The jury found Petitioner guilty of that offense with respect to victim Herrera but not guilty of that offense with respect to victim Fischer. (Id., PageID.522.) The jury also found Petitioner guilty of reckless driving causing death with respect to victim Herrera, but guilty of the lesser offense of a moving violation causing death with respect to victim Fischer. (Id.)

         Petitioner, with the assistance of counsel, directly appealed his convictions and sentences raising the same three issues in the Michigan Court of Appeals that he raises now in this Court, plus two issues relating to the jury instructions for the “moving violation causing death” conviction. (Pet'r's Appeal Br., ECF No. 8-16, PageID.575.) The court of appeals rejected Petitioner's challenges generally and affirmed the trial court; but, because of an issue regarding the instructions relating to the moving violation conviction, remanded to the trial court with instructions to determine which party asked for the “moving violation” instruction. (Mich. Ct. App. Op., ECF No. 8-16, PageID.540-548.) The Kent County Circuit Court docket sheet indicates that the parties stipulated to a resolution of the remand issue that left standing the moving violation conviction. (ECF No. 8-1, PageID.221.)[2]

         Petitioner filed a pro per application for leave to appeal in the Michigan Supreme Court raising only the three issues he raises in this Court. (Pet'r's Appl. for Leave to Appeal, ECF No. 8-17, PageID.672-674.) The supreme court denied leave by order entered May 2, 2016. (Mich. Order, ECF No. 8-17, PageID.670.) Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he filed the instant petition.

         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. Admission of the hospital ...


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