Anger v. Klee

• Decision Date: 21 October 2015
• Docket Number: Civil No. 2:14-CV-14159
• Parties: RANDY SCOTT ANGER, Petitioner, v. PAUL KLEE, Respondent
• Court: U.S. District Court — Eastern District of Michigan

RANDY SCOTT ANGER, Petitioner, v. PAUL KLEE, Respondent

Civil No. 2:14-CV-14159

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 21, 2015

HONORABLE GERALD E. ROSEN

CHIEF UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Randy Scott Anger, ("Petitioner"), confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for possession of 50 or more but less than 450 grams of cocaine, M.C.L.A. 330.7403(2)(a)(iii); three counts of possession of other controlled substances, M.C.L.A. 330.7403(2)(b)(ii); one count of possession of a firearm during the commission of a felony, M.C.L. A. 750.227b, and being a second felony habitual offender, M.C.L.A. 769.10. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

On September 25, 2007, officers executed a search warrant at a property at 1212 Woodlow in Waterford Township, Michigan, where petitioner was living. Petitioner was at home showering at the time of the raid. Police searched the home and the pole barn on the property and recovered cocaine, marijuana, vials of steroids, a loaded pistol, other firearms, and over $ 4,000.00 in cash. One of the officers searching the home found a setof keys on the kitchen counter that included a key that opened the door to the house, a key to a pickup truck parked in the driveway that was registered in petitioner's name, and a key that opened a tool box in the pole barn where some of the contraband was recovered,. The officer in charge of the case ran petitioner's driving record through the Michigan Secretary of State and it listed 1212 Woodlow as petitioner's address, although title to the property had been conveyed by petitioner to another individual named Carrie Stafford.

Following a jury trial, petitioner was convicted in the Oakland County Circuit Court of possession of 50 to 450 grams of cocaine, three counts of possession of other controlled substances, one count of possession of a firearm during the commission of a felony, and being a second felony habitual offender. Petitioner was found not guilty of several other drug and firearms offenses.

Petitioner's conviction was affirmed on appeal. People v. Anger, No. 300164, 2011 WL 6186957 (Mich. Ct. App. Dec. 13, 2011); lv. den. 492 Mich. 865 (2012). Petitioner then filed a post-conviction motion for relief from judgment, which was denied. People v. Anger, No. 07-218338-FH (Oakland County Circuit Court, December 13, 2012). The Michigan appellate courts denied petitioner leave to appeal the trial court's denial of his post-conviction motion. People v. Anger, No. 314281 (Mich.Ct.App. October 8, 2013); lv. den. 495 Mich. 918 (2013).

Petitioner seeks a writ of habeas corpus alleging the following grounds:

I. Ineffective assistance of counsel throughout criminal trial and appeal process [based on] (a) Failure to object or notify the Defendant of the prosecution's intent to seek erroneous sentence enhancement, (b) failure to object to the non-existent informant's identity being kept confidential and whom [sic] is the actual perpetrator of this crime, (c) failure to object or advise the Defendant of his right to refuse court ordered administration of antipsychotic drugs, and (d) failure to object to the judge revoking theDefendant's bail without cause. The appellate attorney refused to argue these issues in the appeals brief.

II. The police used information provided by the actual perpetrator and use[d] false statements to secure an invalid search warrant to frame the Defendant.

III. The Defendant received a severe closed head [injury] while waiting for his trial date and never regained his competency that left him unable to defend himself.

IV. The [trial] court revoked the Defendant's bail without cause and held him in jail pending a competency hearing.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independentjudgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) ((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103.

III. Discussion

A. The motion for the appointment of counsel will be denied.

Petitioner has requested the appointment of counsel to assist with his habeas case.

There is no constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F.3d 441, 444 (6^th Cir. 2002); Lemeshko v. Wrona, 325 F. Supp, 2d 778, 787 (E.D. Mich. 2004). The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due processso require. Mira v. Marshall, 806 F. 2d 636, 638 (6^th Cir. 1986). Appointment of counsel in a habeas proceeding is mandatory only if the district court determines that an evidentiary hearing is required. Lemeshko, 325 F. Supp. 2d at 787. If no evidentiary hearing is necessary, the appointment of counsel in a habeas case remains discretionary. Id.

Counsel may be appointed, in exceptional cases, for a prisoner appearing pro se in a habeas action. Lemeshko, 325 F. Supp. 2d at 788. The exceptional circumstances justifying the appointment of counsel to represent a prisoner acting pro se in a habeas action occur where a petitioner has made a colorable claim, but lacks the means to adequately investigate, prepare, or present the claim. Id.

Petitioner has filed a petition for writ of habeas corpus and numerous briefs, pleadings, and exhibits. Petitioner's claims are "sufficiently clear and coherently organized as to allow this Court to weigh the merits of his claims." Lemeshko, 325 F. Supp. 2d at 788. In light of the fact that none of these claims have any merit, petitioner is not entitled to the appointment of counsel. Id. The motion for the appointment of counsel is denied.

B. Claim # 1. Petitioner's ineffective assistance of counsel claims are unexhausted and procedurally defaulted.

Petitioner first alleges the ineffective assistance of trial and appellate counsel.

Respondent contends that petitioner's ineffective assistance of counsel claims are procedurally defaulted because he never properly exhausted them with the Michigan courts and no longer has an available remedy with which to do so.

As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C.§ 2254(b) and (c); Picard v. Connor, 404 U. S. 270, 275-78 (1971). A petition for a writ of habeas corpus filed by a state prisoner shall not be granted unless the petitioner has exhausted his or her available state court remedies, there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the petitioner's rights. See Turner v. Bagley, 401 F. 3d 718, 724 (6^th Cir. 2005).

Petitioner did not raise an ineffective assistance of trial or appellate counsel claim on his direct appeal.

Petitioner's post-conviction motion for relief from judgment that he filed with the trial court did not contain an ineffective assistance of counsel claim, either.¹ Although petitioner requested an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 443; 212 N.W. 2d 922 (1973), petitioner only requested a hearing in the...