David v. Lavinge
| Decision Date | 08 February 2002 |
| Docket Number | No. 00-CV-75132-DT.,00-CV-75132-DT. |
| Parties | Raul DAVID, Petitioner, v. F. LAVINGE, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
O'MEARA, District Judge.
This matter is before the Court on petitioner Raul David's pro se habeas corpus petition under 28 U.S.C. § 2254. The Court has concluded for the following reasons that the habeas petition must be denied.
On April 19, 1996, a jury in Oakland County, Michigan convicted Petitioner of possession with intent to deliver at least 650 grams of cocaine, MICH.COMP.LAWS § 333.7401(2)(a)(i), and conspiracy to deliver at least 650 grams of cocaine, MICH. COMP.LAWS § 750.157a. The convictions arose from charges that Petitioner, Luis Rosado, and Daniel Rodriguez agreed to sell a kilogram of cocaine to Corey Harvey and that Petitioner delivered the cocaine to Rosado's home in Pontiac, Michigan. Unbeknownst to Petitioner and his co-defendants, Corey Harvey was a police informant. At trial,
[t]he informant testified that he contacted Rodriguez, asking Rodriguez if he could get him a kilogram of cocaine. The informant told Rodriguez he had a buyer willing to pay $28,000, and the informant would pay Rodriguez $26,000. Rodriguez told the informant that he would have to contact someone and get back with the informant. Eventually, Rodriguez told the informant that he was able to get him a kilogram from some people who would be coming in from Detroit. Following Rodriguez' instructions, the informant picked Rodriguez up at his house and Rodriguez gave him directions to Rosado's house. Rodriguez introduced the informant to Rosado. They went to the basement where Rosado presented a brick of cocaine, offering it to Rodriguez. Rodriguez would not take it, so Rosado handed it to the informant. The informant checked the cocaine. There was a knock on the door, and Rosado went upstairs. When Rodriguez and the informant went upstairs, leaving the cocaine behind, Raul David was in the house. The informant asked Rodriguez if David was the man from Detroit. Rodriguez told him he was.
People v. David, No. 196876, 1998 WL 1988910, **2-3 (Mich.App. Nov.10, 1998). Shortly thereafter, the police raided the house and arrested Petitioner.
The trial court sentenced Petitioner to concurrent terms of life imprisonment for the convictions. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished, per curiam opinion. See id. at *1. On October 6, 1999, the Michigan Supreme Court denied Petitioner's subsequent application for leave to appeal because it was "not persuaded that the questions presented should be reviewed...." People v. David, 461 Mich. 881, 602 N.W.2d 582 (1999).
On December 7, 2000, Petitioner filed his habeas corpus petition pursuant to 28 U.S.C. § 2254. The grounds for relief read as follows:
I. Petitioner was denied his due process rights under the Fourteenth Amendment of the United States Constitution where the trial court denied Petitioner's motion to quash Count I, possession with intent to deliver more than 650 grams of cocaine, and Count II, conspiracy to possess more than 650 grams of cocaine, where the only evidence presented at the preliminary examination as Petitioner's guilt was a statement testified to by the People's informant that a co-defendant had stated that Petitioner had brought the cocaine to Pontiac from Detroit.
II. Petitioner was denied due process of the Fifth and Fourteenth Amendment to the United States Constitution where the trial court ruled that Petitioner's statement, given to police within hours of his arrest and without the benefit of counsel, was made understandingly and voluntarily and was therefore admissible against him at trial.
III. Petitioner was denied his due process rights under the Fourteenth Amendment of the United States Constitution where the trial court admitted an alleged co-conspirator's statement to the effect that the Petitioner had brought the cocaine from Detroit to the delivery point upon a ruling that such a statement was being made in furtherance of the conspiracy to deliver more than 650 grams of cocaine.
IV. Petitioner was [denied] due process as guaranteed by the Fourteenth Amendment to the United States Constitution where the trial court denied Petitioner's motion for a directed verdict, brought at the conclusion of the People's case in chief, and based upon the failure of the people to present a prima facie case that Petitioner either possessed any cocaine or was involved in the alleged conspiracy.
V. Petitioner was denied due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution where the trial court denied Petitioner's request that an instruction be given to the jury on accessory after the fact where, before closing arguments, the trial court had stated that, such an instruction would be given.
VI. Petitioner was denied due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution where there was insufficient evidence presented at trial to support the jury's finding of guilt beyond a reasonable doubt on the charges of possession with intent to deliver 650 grams of cocaine and conspiracy to possess more than 650 grams of cocaine.
Respondent urges the Court to deny the petition on the grounds that Petitioner's claims are not cognizable on habeas review or they lack merit.
Petitioner is entitled to habeas relief only if he can show that the state court's adjudication of his claims on the merits —
(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.
28 U.S.C. § 2254(d). Under the "contrary to" clause of § 2254(d)(1),
a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Claim I alleges that the trial court deprived Petitioner of due process when it denied his motion to quash the criminal charges. Petitioner contends that he should not have been bound over to circuit court on the two charges against him because there was insufficient evidence presented at the preliminary examination.
Petitioner had no constitutional right to a preliminary hearing. Gerstein v. Pugh, 420 U.S. 103, 125 n. 26, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir.1965). His claim raises only a matter of state law and procedure; it does not involve a federal question of fundamental fairness or constitutional protection. Oliphant v. Koehler, 451 F.Supp. 1305, 1307 (W.D.Mich.1978). Consequently, Petitioner's claim cannot form the basis for federal habeas corpus relief. Id.; see 28 U.S.C. §§ 2241(c)(3) and 2254(a) (); see also Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (). To the extent that Petitioner is challenging the sufficiency of the evidence to convict him, his allegations lack merit for the reasons given in the discussion on claims IV and VI.
Petitioner's second claim alleges that the trial court deprived him of due process when it ruled that his statement to the police was voluntary and intelligent and, therefore, admissible in evidence. Petitioner alleges that his statement was involuntary because the police denied his request for an attorney, refused his request to call home, and told him that, if he did not cooperate, he would never see his children again. Petitioner argues that his decision to make a statement was not an intelligent waiver, but a product of fear and intimidation.
The Fifth Amendment states that "[n]o person shall be ... compelled in any criminal case to be a witness against himself...." U.S. CONST. amend. V.1 To protect this right, an individual who
is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning ... must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).2
After a suspect expresses a desire to deal with the police only through counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d...
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