Dicken v. Brewer

• Decision Date: 09 December 2019
• Docket Number: Civil No. 2:19-CV-11676
• Parties: SHAWN KRISTI DICKEN, Petitioner, v. SHAWN BREWER, Respondent
• Court: U.S. District Court — Eastern District of Michigan

SHAWN KRISTI DICKEN, Petitioner, v. SHAWN BREWER, Respondent

Civil No. 2:19-CV-11676

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 9, 2019

Hon. Denise Page Hood Chief United States District Judge

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Shawn Kristi Dicken, ("Petitioner"), confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 through her attorney F. Randall Karfonta.Petitioner challenges her conviction for conducting a criminal enterprise, Mich. Comp. Laws § 750.159i(1); embezzlement from a vulnerable adult, $50,000 or more but less than $100,000, Mich. Comp. Laws § 750.174a(6)(a); and seven counts of obtaining money by false pretenses, $1,000 or more but less than $20,000, Mich. Comp. Laws § 750.218(4)(a).Petitioner was sentenced to concurrent prison terms of 140 months to 20 years for the criminal enterprise conviction, 23 months to 5 years for each false pretenses conviction, and 71 months to 15 years for the embezzlement conviction.For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I.Background

Petitioner was convicted following a jury trial in the Midland County Circuit Court.This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming her conviction, since they are presumed correct on habeas review.SeeWagner v. Smith, 581 F. 3d 410, 413(6th Cir.2009):

This case resulted from allegations that defendant, a registered representative or broker who worked for the Diversified Group, placed the funds of many clients into a risky limited partnership investment in which they lost substantial portions of their principal.The prosecutor asserted that defendant did so in order to obtain commissions and that, to convince her clients to enter into these risky investments, she misled them as to the risk to their principal and the liquidity of the investment.In addition, several of defendant's clients testified that their signatures on various documents had been forged.

People v. Dicken, No. 322998, 2016 WL 146031, at * 1(Mich. Ct. App.Jan. 12, 2016).

The Michigan Court of Appeals affirmed petitioner's convictions and sentences for her embezzlement and false-pretenses convictions, but remanded to the trial court for further proceedings regarding the reasonableness of the above the guidelines sentence for the criminal-enterprise conviction.Id.

Petitioner filed an application for leave to appeal in the Michigan Supreme Court.The Michigan Supreme Court remanded the case back to the Court ofAppeals to consider the proportionality of petitioner's criminal-enterprise sentence, but otherwise denied the application.People v. Dicken, 501 Mich. 904, 902 N.W.2d 604(2017).

On remand, the Michigan Court of Appeals affirmed petitioner's sentence for criminal enterprise, determining that it was proportionate based on the trial court's reasons for the departure from the sentencing guidelines.People v. Dicken, No. 322998, 2018 WL 632986(Mich. Ct. App.Jan. 30, 2018);lv. den.502 Mich. 904, 913 N. W. 2d 325(2018).

Petitioner seeks a writ of habeas corpus on the following grounds:

I.In a fraud case where the issue was Defendant's disclosure to clients and unlawful and illegal intent, Defendant was denied fundamentally fair discovery of the investigation of the business entities in the case including a clearly intentionally and important Brady v Maryland violation.

II.Improper expert opinion as to evidence that "is not a defense" and opinion as to the meaning of federal statu[t]es and regulations is plain error[.]

III.Recordings of Shawn Dicken's testimony before the FINRA state investigative agency are required evidence showing her lack of intent to defraud.

IV.Where the charge is embezzlement from a vulnerable adult, prosecutorial arguments and evidence that the power of attorney in the case was the equivalent of legal incapacity denied Defendant a fair trial and due process of law.

II.Standard of Review

28 U.S.C. § 2254(d), as amended byThe 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 state court's decision 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 therelevant state-court decision applied clearly established federal law erroneously or incorrectly."Id. at 410-11.

The Supreme Court 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, 559 U.S. 766, 773(2010)((quotingLindh 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, 562 U.S. 86, 101(2011)(citingYarborough v. Alvarado, 541 U.S. 652, 664(2004)).To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her 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, 562 U.S. at 103.A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable.SeeWoods v. Etherton, 136 S. Ct. 1149, 1152(2016).

The Michigan Court of Appeals reviewed and rejected a portion of petitioner's first and second claims and her fourth claim under a plain error standard on the ground that petitioner failed to preserve these claims as a constitutional issue at the trial court level.The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim.SeeStewart v. Trierweiler, 867 F.3d 633, 638(6th Cir.2017).¹

III.DISCUSSION

A.Claim # 1.The discovery claim.

Petitioner first argues that she is entitled to habeas relief because the prosecutor violated M.C.R. 6.201(B)andBrady v. Maryland, 373 U.S. 83(1963)by failing to turn over to the defense materials that the prosecutor had in its possession regarding other Diversified Group employees, material obtained pursuant to a search warrant executed at a credit union for Triton Commercial Lending, a separate company owned by petitioner, and evidence regarding the operation of Diversified Group by a receiver.

It is well-settled that there is no general constitutional right to discovery in a criminal case.SeeWeatherford v. Bursey, 429 U.S. 545, 559(1977)(denying due process claim of a defendant who was convicted with aid of surprise testimony from an accomplice who was an undercover agent);United States v. Presser, 844 F. 2d 1275, 1281(6th Cir.1988)(citingWeatherford).A claim that a prosecutor violated state discovery rules is not cognizable in federal habeas review, because it is not a constitutional violation.SeeLorraine v. Coyle, 291 F. 3d 416, 441(6th Cir.2002).Petitioner would not be entitled to habeas relief because the prosecutor violated M.C.R. 6.201 or some other Michigan rules regarding discovery.

It is true that suppression by the prosecution of evidence favorable to the defendant upon request violates due process, where the evidence is material to either guilt or punishment of the defendant.Brady v. Maryland, 373 U.S. 83, 87(1963).Whether the prosecution acted in good or bad faith is not considered in the determination.Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding wouldhave been different.A "reasonable probability is a probability sufficient to undermine confidence in the outcome."United States v. Bagley, 473 U.S. 667, 683(1985).In Strickler v. Greene, 527 U.S. 263, 281-82(1999), the Supreme Court articulated three components or essential elements of a Brady claim: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued."Prejudice (or materiality) in the Brady context is a difficult test to meet."Jamison v. Collins, 291 F. 3d 380, 388(6th Cir.2002).

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