Broussard v. Romanowski

• Decision Date: 12 November 2013
• Docket Number: Civil No. 2:13-CV-11120
• Parties: HENRY BROUSSARD, Petitioner, v. KEN ROMANOWSKI, Respondent
• Court: U.S. District Court — Eastern District of Michigan

HENRY BROUSSARD, Petitioner, v. KEN ROMANOWSKI, Respondent

Civil No. 2:13-CV-11120

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: November 12, 2013

HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,

AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

Henry Broussard, ("Petitioner"), confined at the Macomb Correctional Facility in New Haven, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se habeas petition, Petitioner challenges his conviction and sentence for one count each of assault with intent to do great bodily harm less than murder, M.C.L.A. 750.84, assault with a dangerous weapon, M.C.L.A. 750.82, felon in possession of a firearm, M.C.L.A. 750.224f, possession of a firearm in the commission of a felony, [felony-firearm], second offense, M.C.L.A. 750.227b, and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit. This Court recites verbatim the relevant facts relied upon by theMichigan 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 (6^th Cir. 2009):

This case arises from a shooting that occurred at 4157 North Campbell Street in the city of Detroit on January 29, 2010. The prosecution witnesses testified that defendant sold drugs from the second story of that house through two women who resided there—Malena Garcia and Tasha Williams. On the night in question, defendant became enraged because Brenda Nealy and her boyfriend Chris Peterson purchased drugs from someone other than defendant and proceeded to smoke it in the lower flat of the home. Defendant confronted Nealy and Peterson, left the home, and then returned shortly thereafter armed with a gun. Defendant fired shots into the home and forced Nealy and Peterson to leave at gunpoint. Nealy was shot in the back of her leg.

Garcia testified on defendant's behalf. Contrary to the prosecution's witnesses, she testified that defendant did not fire shots into the home. Instead, defendant and his fiancé, Shavelle Runels, came to the home to pick up Garcia. While there, defendant admonished the prosecution's witnesses that they should be ashamed of themselves for smoking crack cocaine. Nealy and Peterson voluntarily left the home. Garcia denied that any shooting took place.

People v. Broussard, No. 300007, Slip. Op. at * 1 (Mich.Ct.App. January 19, 2012).

Petitioner's conviction was affirmed on appeal. Id., lv. den. 492 Mich. 854, 817 N.W.2d 54 (2012).

Petitioner seeks a writ of habeas corpus on the following grounds: (i) the trial court erred in admitting into evidence a phone sex audiotape that was more prejudicial than probative, (ii) the trial judge changed the maximum term of sentencing on the highest charge based on his mistaken belief that his original choice of sentence was illegal, (iii) Petitioner was denied the effective assistance of counsel due to his attorney's failure to call two witnesses for the defense, (iv) Petitioner's right to present a defense was violated when the district court judge at the preliminary examination bound him over for trialwithout hearing testimony from defense witnesses, (v) Petitioner's convictions for felon-in-possession of a firearm and felony-firearm violate the Double Jeopardy Clause; alternatively, counsel was ineffective for failing to object at sentencing, (vi) Petitioner was improperly sentenced to a five year prison sentence for felony-firearm, second offense, when Petitioner did not have a prior felony-firearm conviction; alternatively, trial counsel was ineffective for failing to object, (vii) Petitioner was denied a fair trial by cumulative error and counsel's failure to object to cumulative error.

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 independent judgment 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, 130 S. Ct. 1855, 1862 (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, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of theSupreme Court. Id.

"[I]f this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Indeed, "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." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Thus, a "readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law." Woodford, 537 U.S. at 24. Therefore, 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, 131 S. Ct. at 786-87. Finally, in reviewing Petitioner's claims, this Court must remember that under the federal constitution, Petitioner was "entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619 (1953).

III. Discussion

A. Claim # 1. The phone sex audiotape.

Petitioner first claims that his right to a fair trial was violated when the trial judge admitted into evidence an audiotape of a conversation between Petitioner and defense witness Garcia that took place when Petitioner was incarcerated in jail, which included "phone sex" between the two. Petitioner claims that this evidence was substantially more prejudicial than probative of an issue at trial and was simply admitted to establish that Petitioner was a bad character, in violation of M.R.E. 404(b).

It is "not the province of a federal habeas court to reexamine state-court determinations on state-court questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to deciding whether a state court conviction violates the Constitution, laws, or treaties of the United States. Id. Thus, errors in the application of state law, especially rulings regarding the admissibility of evidence, are usually not questioned by a federal habeas court. See Seymour v. Walker, 224 F. 3d 542, 552 (6^th Cir. 2000).

Petitioner's claim that the phone sex conversation should have been excluded under M.R.E. 403 for being more prejudicial than probative does not entitle Petitioner to habeas relief. The Sixth Circuit observed that "[t]he Supreme Court has never held (except perhaps within the capital sentencing context) that a state trial court's...