Bean v. Warren

• Decision Date: 30 June 2011
• Docket Number: CASE NO. 2:10-cv-10564
• Parties: CHERYL BEAN Petitioner, v. MILLICENT WARREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CHERYL BEAN Petitioner,

v.MILLICENT WARREN, Respondent.

CASE NO. 2:10-cv-10564

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: June 30, 2011

HONORABLE JOHN CORBETT O'MEARA

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

Cheryl Bean, a state inmate, filed this habeas case under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Oakland Circuit Court of armed robbery, Mich. Comp. Law 750.529, and assault with intent to cause great bodily harm. Mich. Comp. Law 750.84. For the reasons which follow, the petition will be denied.

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions stem from a theft at a retail store in Oak Park. A store security guard, Anthoney Reed, noticed defendant and her female friend arrive at the store carrying big empty handbags. The guard became distracted by a group of children, but when his attention returned to defendant and her friend, he noticed that their bags now contained items. Reed followed defendant and observed her place a number of caps in her bag. He also saw defendant's companion place several shirts in her bag. The two women then attempted to leave the store, and Reed and his partner, Keith Tobar, followed them and tried to stop them. Reed told the women that he was a security guard, and asked them to stop. When they continued, Reeddetained defendant's companion. Tobar tried to apprehend defendant. Tobar testified that defendant pulled a pair of needle-nosed pliers from her pocket and told him to get away from her and that she was going to kill him. Tobar testified that defendant stabbed him five times with the pliers, hitting him in his left forearm as he was trying to shield himself. Tobar wrestled the pliers from defendant, and also managed to grab her bag and a set of keys. Defendant escaped to a nearby van and drove away. Hats taken from the store were found in the van following defendant's arrest.

People v. Bean, 2009 Mich. App. LEXIS 1183, *1-2 (Mich. Ct. App. May 26, 2009). Following her conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claim:

I. Whether the jury instruction failed to properly articulate that the charged crimes were specific intent crimes.

The Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id. Petitioner subsequently filed an application for leave to appeal to the Michigan Supreme Court which raised the same claim. The Michigan Supreme Court denied the application in a standard order. People v. Bean, 485 Mich. 929, 773 N.W.2d 708 (2009). Petitioner's application for habeas relief raises the same claim she presented to the state courts.

II. Analysis

A. Standard of Review

Petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:

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 proceedings.

28 U.S.C. § 2254(d).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he 'unreasonable application' prong of the statute permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "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, U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the statecourt'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." Id. at 786-87 (internal quotation omitted).

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

B. Jury Instructions

Petitioner claims that the trial court erred when it failed to instruct the jury on the differing mental states required to satisfy the elements of the two charged offenses. Specifically, Petitioner argues that both armed robbery and assault with intent to commit great bodily harm are so-called "specific intent" crimes that require different mental states, but that the standard jury instructions did not adequately inform the jury of this fact. Respondent asserts that the claim is procedurallydefaulted because Petitioner's trial counsel approved of the jury instructions. Alternatively, Respondent asserts that the claim is without merit.

The Michigan Court of Appeals considered and rejected this claim as follows:

Defendant argues that the trial court erred when it gave jury instructions on the charged crimes of robbery and assault. She maintains that the trial court's failure to instruct the jury that these crimes require specific intent constituted plain error that affected the outcome of her trial.

"A defendant may not waive objection to an issue before the trial court and then raise it as an error on appeal." People v. Carter, 462 Mich. 206, 214; 612 N.W.2d 144 (2000). "Waiver is the intentional relinquishment or abandonment of a known right. It differs from forfeiture, which . . . [is] the failure to make the timely assertion of a right. One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error. Mere forfeiture, on the other hand, does not extinguish an 'error.'" Id. at 215 (internal citations omitted). Affirmatively approving a jury instruction extinguishes any error. Id. at 216, citing United States v. Griffin, 84 F.3d 912, 923-924 (7th Cir. 1996).

When the trial court finished reading the jury instructions in the instant case, the court asked whether the prosecution or defense had any objection to the instructions as delivered. Defense counsel replied, "No, your honor. I understand the Court's ruling on 7.15 and agree with the instructions as given." Thus, despite defendant's characterization of this issue on appeal as forfeiture, under Carter, defense counsel affirmatively approved the jury instructions read by the trial court, which extinguishes any error and precludes review.

Moreover, even if we were to conclude that defendant merely forfeited the issue, defendant cannot show that the trial court plainly erred. The trial court instructed the jury that the prosecutor had to show that defendant took the property "with the intent to take it away from the person permanently" in order to prove defendant guilty of robbery. As to AWGBH, the jury was instructed that the prosecutor was required to prove that "the defendant intended to cause great bodily harm." These intent instructions

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