Browning v. Foltz

Decision Date04 March 1988
Docket NumberNo. 86-1960,86-1960
Citation837 F.2d 276
PartiesErnest BROWNING, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James Sterling Lawrence (argued), Detroit, Mich., for petitioner-appellant.

James D. O'Hair, Pros. Atty., Olga Agnello-Raspa, Larry L. Roberts (argued), Detroit, Mich., for respondent-appellee.

Before JONES, WELLFORD and GUY, Circuit Judges.

WELLFORD, Circuit Judge.

This petition for habeas corpus has its origin in the 1977 conviction of Ernest Browning for felony murder and rape in Michigan state court. Browning is currently serving a life sentence for the murder and a 40 year term for the rape. The present petition is based on alleged violations of the Interstate Agreement on Detainers (IAD), M.C.L. Sec. 780.601 et seq; erroneous jury instructions; destruction of evidence; ineffective assistance of counsel; and on the district court judge's failure to recuse himself from hearing Browning's petition below.

I

There is no question but that Browning exhausted these issues at the state level. Immediately following his conviction he appealed to the Michigan Court of Appeals, claiming it void because of violation of the IAD. Browning claimed that he was the subject of a detainer issued by Michigan based on these charges while in federal custody in Texas. Because he was not tried within the time limits provided by the Act, he claimed his conviction was void. The court of appeals rejected this claim because it found that while detainers had been issued, the felony murder and rape charges at issue were not the subject of those detainers, and thus the IAD was not implicated. See People v. Browning, 108 Mich.App. 281, 310 N.W.2d 365 (1981). The Michigan Supreme Court denied leave to appeal on this claim. Browning later filed for leave to take a delayed appeal based on ineffective assistance of counsel and erroneous jury instructions. These appeals were denied by the Michigan courts.

Browning then filed a petition for habeas corpus in federal court in the Eastern District of Michigan. The petition was initially assigned to Judge Pratt, but was reassigned to Judge Feikens. Browning filed a motion to disqualify Judge Feikins but it was denied by the judge, who also denied a certificate of probable cause. The state issues, as well as the district judge's refusal to recuse himself, are the subject of this appeal.

II

Petitioner was charged with two counts in an information filed in May, 1974. Count I charged Browning with the death of Delano Smith while in the perpetration of a robbery. Count II charged him with the rape of LaDonna Simmons. 1

The primary witness against Browning at trial was Michael Champion, a man who had told police about the robbery and murder, as well as other crimes, when he was arrested for armed robbery and rape. According to Champion, he, Browning, Samuel Till and Samuel Christian agreed to commit a robbery in May of 1974. They chose a house, and the four of them set out to commit the crime. Champion said that Browning had a gun and was "calling the shots."

Champion then related what happened at the house. The door was answered by a small child, whom Till put in a closet. Browning, Till and Champion began searching the house for money and drugs, and Champion found a girl in a bedroom and forced her to have sex with him. Browning broke into a safe and took the money he found there. Browning and Till went upstairs, and Champion later saw them assaulting a black male. Till was seen beating the man, later identified as Smith, with an ash tray and Browning was choking him. The conspirators, including Browning, then left the house and divided the stolen money. Smith's body was later found by police in the house, and his cause of death was found to be strangulation.

LaDonna Simmons, the rape victim, testified that she was asleep in the den of the house when she was awakened by Champion pointing a gun at her head. She testified that Browning was with Champion and also raped her.

Prior to trial, the defense made a motion requesting transcripts of all statements made by prosecution witnesses, which was granted by the trial court. During trial, however, defense counsel discovered that the police department had engaged in extensive questioning of Champion, and that Detroit police had taken statements from him which related information about the instant case and many other crimes including a number of homicides. Champion's statements were recorded on cassette tapes; they were not written, and were not produced. Sgt. Kimber explained that the taped statements were the only statements that the police department had from Champion, and that the tapes were "lost." None of Champion's statements were produced for examination by Browning's attorney before or during trial.

III

Browning charges first that Judge Feiken's November 9, 1977, order denying his first petition for habeas corpus 2 includes language which establishes the Judge's bias and prejudice against him so that the judge was required to disqualify himself in this second petition. That portion of Judge Feiken's order which is the basis for Browning's claim states:

If the writ were equated with a detainer and the provisions of the IAD were held to be applicable, this court might have to nullify an otherwise properly obtained murder and rape conviction and dismiss other murder charges against the leader of a gang that terrorized northwestern Detroit neighborhoods for nearly two years with murders, rapes, robberies, and destruction of property. This convicted murderer, rapist, and heroin distributor would be cleared of the charges against him because of technicalities in a law designed to foster the rehabilitation of prisoners by providing for fewer and shorter absences from their primary place of incarceration. Given the facts in this case and petitioner's criminal record, such a result would be illogical and unjust.

Judge Feikens declined to disqualify himself, and stated that he would decide the issues in the petition on the merits and under the applicable law. He also said he was not biased against Browning and that the above statement was a consequence of information involved in considering two of Browning's previous habeas petitions and the state court information. Browning brings this claim based on 28 U.S.C. Secs. 144 and 455. 3 The focus is on objective appearance or evidence of bias, not on the subjective view of a party, although bias may be shown either by in-court statements or in opinions or orders. See Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980). Nicodemus v. Chrysler Corp., 596 F.2d 152, 155-57 (6th Cir.1979); United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983). "The legal standard [for recusal under Sec. 144] requires the facts to be such as would 'convince a reasonable man that a bias exists.' " United States v. Story, 716 F.2d 1088, 1090 (6th Cir.1983) (citation omitted). Further, "[A] bias sufficient to justify recusal must be a personal bias 'as distinguished from a judicial one,' arising 'out of the judge's background and association' and not from the 'judge's view of the law.' " Id. (citations omitted).

The evidence in connection with this case and as reflected in the Michigan court decision reflects that Browning and his coconspirators involved in this case were, indeed, apparently participants in a number of heinous offenses; that Browning was a leader in the group, and also that Browning had been convicted of serious drug offenses. Courts in considering habeas corpus petitions must often deal with persons who have been involved in serious criminal activities, but such courts are required to examine the law and binding precedent to determine whether the petitioner is, nevertheless, entitled to constitutional relief. A judge may deny a petition for habeas corpus relief from a prisoner and even conclude that he may have indeed committed offenses repugnant to ordered society without being disqualified from consideration of subsequent petitions from the same prisoner, raising other grounds for relief. We find no sufficient showing to indicate bias requiring recusal on Judge Feikens' part.

IV

Browning's next claim is based on faulty jury instructions. Count I of the information against Browning charged that he, "while in the perpetration or attempted perpetration of a Robbery, did kill and murder one DELANO SMITH, contrary to Sec. 750.316, M.C.L.A. as amended." Count II charged him with raping (assaulting and carnally knowing) a female over age sixteen. The information, however, did not list rape as one of the criminal acts precipitating Smith's death. He was tried on both counts concurrently as the facts giving rise to both counts occurred substantially at the same time and place. The trial court made the following jury charge:

For murder in the first degree, there must be proven, beyond a reasonable doubt, that the killing occurred as a result of the crime of robbery, or rape, in this particular instance, and that the defendant was, at the time, engaged in committing, attempt to commit, or aiding in the commission of that crime.

(emphasis added) This instruction was given more than once. The district court found this to be error because the jury could have decided the murder was done in furtherance of the rape rather than the robbery, which would constitute a variance between the proof at trial and the information. However, the court concluded that this error was "harmless beyond a reasonable doubt." We agree.

Browning argues that this charge constituted a "constructive amendment" of the information, deemed prejudicial per se, rather than a "variance", which is subject to a harmless error analysis and cites Watson v. Jago, 558 F.2d 330, 334 (6th Cir.1977). The state responds (1)...

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