Bogard v. Horton

• Decision Date: 26 March 2020
• Docket Number: Case No. 2:20-cv-16
• Parties: STEVE BERNARD BOGARD, Petitioner, v. CONNIE HORTON, Respondent.
• Court: U.S. District Court — Western District of Michigan

STEVE BERNARD BOGARD, Petitioner, v. CONNIE HORTON, Respondent.

Case No. 2:20-cv-16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

March 26, 2020

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim. The Court also will deny Petitioner's motion to stay the petition and hold it in abeyance while he exhausts an additional ground for relief (ECF No. 8).

Discussion

I. Factual allegations

Petitioner Steve Bernard Bogard is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of the following offenses: possession with intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv); being a felon in possession of a firearm (felon in possession), Mich. Comp. Laws § 750.224f; assault with a dangerous weapon, Mich. Comp. Laws § 750.82; and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. On February 23, 2017, the court sentenced Petitioner to respective prison terms of 2 to 40 years, 8 to 60 years, 2 to 15 years, and 2 years.

The following factual background is taken from the court of appeals opinion affirming Petitioner's convictions and sentences.

On September 20, 2016, Siad Brown called the police to report that someone had shot at him. When the police arrived, he emerged from a hiding place in some bushes and consented to the police searching his residence. The police knocked on the door, announced themselves, and entered. Inside, Bogard walked toward them from an area that another witness testified was near the basement. Bogard was searched. Although he was unarmed and had no drug paraphernalia on his person, he was carrying $1,660 in cash. The police searched the basement of the house and discovered 1.66 grams of cocaine and a loaded gun on some ductwork. They also searched Bogard's vehicle and discovered a digital scale and sandwich bags with the corner pieces torn out.

The prosecution's theory was that Bogard shot at Brown. In support, they presented testimony from Brown that Bogard pointed a gun at him, so he ran away. Brown stated that while he was running, he thought he heard gunshots. Brown's ex-girlfriend (who he was dating at the time) also testified that Bogard showed Brown the gun and pointed it at him. Based on the testimony that Bogard possessed the gun, had drug paraphernalia in his vehicle, and had a large sum of cash on his person, the prosecution also argued that the cocaine belonged to Bogard and that he had essentially stashed both the drugs and the gun after shooting at Brown butbefore the police arrived. In his defense, Bogard testified that he never went into the basement. He also stated that he had a large sum of cash because he was going to get a money order for $1,000 to pay his mother's mortgage and that he was going to use $600 to pay his car insurance. Bogard also testified that other individuals used his vehicle and that he had not personally checked to see if anything out of the ordinary was in the vehicle before he used it. The jury convicted Bogard as indicated above.

(Mich. Ct. App. Op., ECF No. 1, PageID.19-20.)

Petitioner appealed his convictions and sentences to the Michigan Court of Appeals. The brief on appeal filed by Petitioner's attorney raised the first four grounds presented in this habeas petition. (Def.-Appellant's Br. on Appeal, ECF No. 1, PageID.51-73.) Petitioner filed a pro per supplemental brief raising the issue presented as Petitioner's fifth habeas ground. In an unpublished opinion issued on April 24, 2018, the court of appeals denied all claims and affirmed both the convictions and sentences.

Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same five issues. The supreme court denied leave to appeal on December 4, 2018. (Mich. Order, ECF No. 1, PageID.27.)

On December 16, 2019, Petitioner timely filed his habeas corpus petition. The petition raises five grounds for relief, as follows:

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE PROSECUTION HAD SHOWN DUE DILIGENCE IN ATTEMPTING TO PROCURE THE ATTENDANCE OF A CRUCIAL WITNESS, WHOSE PRELIMINARY EXAMINATION TESTIMONY WAS [] READ TO THE JURY IN LIEU OF HIS LIVE TESTIMONY, THUS VIOLATING [PETITIONER'S] RIGHT TO CONFRONTATION.

II. WHETHER THE PROSECUTOR IMP[RO]PERLY SHIFTED THE BURDEN OF PROOF DURING CLOSING AR[]GUMENT, CONTRARY TO THE FOURTEENTH AMENDMENT.

III. WHETHER [PETITIONER'S] CONVICTION OF POSSESSION WITH INTENT TO DELIVER MUST BE VAC[A]TED DUE TO INSUFFICIENCY OF THE EVIDENCE.

IV. WHETHER [PETITIONER] IS ENTITLED TO RESENTENCING BECAUSE HIS MINIMUM TERM WAS AN UNREASONABLE AND DISPROPORTIONATE SENTENCE.

V. [PETITIONER] WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS DEFENSE AS GUARANTEED BY THE UNITED STATES AND MICHIGAN CONSTITUTIONS . . . .

(Pet., ECF No. 1, PageID.5, 7, 9-10, 12.) Petitioner also has filed a motion to stay the petition and hold his exhausted claims in abeyance while he exhausts a new claim of ineffective assistance of counsel (ECF No. 8), on the ground that defense counsel failed to investigate to discover evidence from an eyewitness that would call into question the credibility of the prosecution's principal witness.

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. 312, 316 (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. Lopez v. Smith, 574 U.S. 1, 4 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Parker v. Matthews, 567 U.S. 37, 48-49 (2012); 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, 575 U.S. at 316 (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 theiradjudication 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...