Draughn v. Jabe

• Decision Date: 02 September 1992
• Docket Number: Civ. A. No. 92-CV-70755-DT.
• Citation: Draughn v. Jabe, 803 F.Supp. 70 (W.D. Mich. 1992)
• Parties: Ronald Mark DRAUGHN, Petitioner, v. John JABE, Respondent.
• Court: U.S. District Court — Western District of Michigan

803 F. Supp. 70

Ronald Mark DRAUGHN, Petitioner, v.John JABE, Respondent.

Civ. A. No. 92-CV-70755-DT.

United States District Court, E.D. Michigan, S.D.

September 2, 1992.

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Ronald M. Draughn, pro se.

Frank J. Kelley, Atty. Gen. by K. Davison Hunter, Habeas Corpus Div., Lansing, Mich., for Jabe.

MEMORANDUM OPINION AND ORDER

GADOLA, District Judge.

PetitionerRonald Mark Draughn, who is presently confined at the State Prison of Southern Michigan in Jackson, Michigan, has filed a pro se application for the writ of habeas corpus under 28 U.S.C. § 2254.On January 14, 1986, a jury in Recorder's Court for the City of Detroit, Michigan, found petitioner guilty of murder in the second degree and possession of a firearm during the commission of a felony.The trial judge sentenced petitioner to life imprisonment for the murder conviction and to a mandatory two-year term of imprisonment for the felony firearm conviction.

The convictions and sentence arose from the following facts as summarized by the Michigan Court of Appeals:

On the evening of August 31, 1985, petitioner and George Garrett went to a flat on St. Clair in Detroit.Jeremiah Griffin was already there.Petitioner and Griffin began to argue.Griffin had a knife, and at some point, petitioner left and returned with a sawed-off shotgun.Petitioner tried to get Griffin to go outside, but Griffin refused.Petitioner was standing over Griffin, pointing the gun at him, when petitioner heard his father call him from the street below.Petitioner looked at the window, and Griffin grabbed the barrel of the shotgun.The gun went off.Griffin was shot in the back of his head and died instantly.

People v. Daughn, Michigan Court of AppealsNo. 92662(May 7, 1987).

On direct appeal, petitioner claimed that the trial court gave incomplete and misleading instructions on his defense of accident.The Michigan Court of Appeals affirmed his convictions, and the Michigan Supreme Court denied leave to appeal.People v. Draughn, Michigan Court of AppealsNo. 92662(May 7, 1987);People v. Draughn, Michigan Supreme CourtNo. 80860(July 24, 1987).

Subsequently, petitioner raised the pending issues, including the issue that he raised on direct appeal, in a motion for relief from judgment under Subchapter 6.500 of the Michigan Court Rules.The trial court denied the motion.People v. Draughn, Recorder's CourtNo. 85 05297(October 16, 1990).The Michigan Court of Appeals found no merit in petitioner's delayed application for leave to appeal and denied leave to appeal.People v. Draughn, Michigan Court of AppealsNo. 133877(January 29, 1991).The Michigan Supreme Court similarly denied petitioner's delayed application for leave to appeal in a standard order.People v. Draughn, Michigan Supreme CourtNo. 91168(September 30, 1991).

On February 13, 1992, petitioner filed the pending application for habeas relief.Petitioner has not identified his grounds for relief by number or letter in his brief.The following is a summary of the claims in the order in which they appear in petitioner's brief: (1) incomplete and misleading jury instructions on accidental homicide; (2) incomplete and misleading jury instructions on involuntary manslaughter; (3) suppression of evidence by the prosecutor; (4) lack of a jury instruction on voluntary manslaughter; (5) untimely instructions on felony firearm; (6) ineffective assistance of counsel; (7) irrelevant and inaccurate information in the presentence report; (8) insufficient evidence to support the murder conviction; (9) inaccurate sentencing guidelines report; and (10) sentence based on behavioral credits.State court remedies concerning the issues raised in the habeas petition have been exhausted.Anderson v. Harless,459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3(1982);Picard v. Connor,404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438(1971).

DISCUSSION

I.JURY INSTRUCTIONS

Four of the above-enumerated claims concern the trial court's jury instructions.Petitioner objects to the trial court's instructions, or lack thereof, on accidental homicide, involuntary manslaughter, voluntary manslaughter, and felony firearm.

When reviewing these claims, the Court is mindful that

the burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.The question in such a collateral proceeding is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,'Cupp v. Naughten,414 U.S. 141, at 14794 S.Ct. 396, 400, 38 L.Ed.2d 3681973, not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,'"id. at 146, 94 S.Ct. at 400.

Henderson v. Kibbe,431 U.S. 145, 154, 97 S.Ct. 1730, 1736-1737, 52 L.Ed.2d 203(1977)(footnote omitted).A jury instruction that merely violates state law does not entitle a petitioner to the writ of habeas corpus.Wood v. Marshall,790 F.2d 548, 551(6th Cir.1986), cert. denied sub nom.Wood v. McMackin,479 U.S. 1036, 107 S.Ct. 889, 93 L.Ed.2d 842(1987);Watters v. Hubbard,725 F.2d 381, 383(6th Cir.), cert. denied,469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74(1984).

A.Accidental Homicide

Petitioner alleges that the trial court deprived him of his rights to due process of law and a fair trial by giving incomplete and misleading instructions on accidental homicide.Specifically, petitioner contends that the trial judge did not explain the elements of accidental homicide and removed the concept of innocence in excusable homicide by instructing on negligent, not accidental, homicide.

Respondent argues that petitioner is precluded from raising this claim.The Court agrees.

Petitioner raised this claim on direct appeal.The Michigan Court of Appeals noted petitioner's failure to request specific instructions about his defense and his failure to object to the instruction when given the opportunity to do so.The Court of Appeals also ruled on the merits of petitioner's claim.The Michigan Supreme Court then denied leave to appeal.Although petitioner subsequently raised the issue again in his motion for relief from judgment, the trial court declined to rule on the claim because the Court of Appeals had already addressed the issue.The state appellate courts declined to review petitioner's collateral appeal.Thus, the last state court rendering a reasoned judgment on this issue denied relief, in part, because of the procedural default.SeeYlst v. Nunnemaker,___ U.S. ___, ___, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706(1991)(holding that a court must look through unexplained orders to the last reasoned decision);McBee v. Grant,763 F.2d 811, 813(6th Cir.1985)(holding that the cause and prejudice standard applies when a state court relies on the procedural default, but also discusses the merits).Petitioner therefore is barred from raising this claim on federal habeas review unless he can demonstrate (1) cause for the default and actual prejudice from the alleged violation of federal law, or (2) that failure to raise the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson,___ U.S. ___, ___, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640(1991);Harris v. Reed,489 U.S. 255, 262, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308(1989).¹

Petitioner suggests that ineffective assistance of counsel was cause for the procedural default.For the following reasons, the Court finds that petitioner has not established cause or prejudice for his procedural default.

The trial court used an approved criminal jury instruction (CJI 7:1:01, now CJI2d 7.1) for the relatively simple concept of accident.T IIat 251.²The trial court indicated that petitioner was not guilty of second-degree murder if the jury was not convinced beyond a reasonable doubt that petitioner voluntarily pulled the trigger.Id.The Michigan Court of Appeals found that the instruction fairly presented petitioner's defense of accident to the jury.Therefore, defense counsel's failure to suggest a different instruction or to object to the instruction on accidental homicide did not amount to ineffective assistance.

Moreover, petitioner was not prejudiced from the alleged omission of counsel and will not suffer a miscarriage of justice if the Court declines to address this issue.The evidence suggesting an accidental shooting was weak, whereas the evidence of an intentional killing was strong.The Court need not review petitioner's claim because he has not established cause and prejudice for his procedural default.

B.Involuntary Manslaughter

Petitioner next alleges that the trial court deprived him of his right to due process of law and a fair trial by giving incomplete and misleading instructions on involuntary manslaughter.The trial court used CJI 16:4:04 (Involuntary Manslaughter as a Lesser Included Offense of Murder) and CJI 16:4:05 (Gross Negligence).Petitioner contends that the controlling issue at trial was not negligence, but whether the weapon accidentally discharged when it was pointed at the victim.Petitioner therefore argues that the trial court erred by not using CJI 16:4:06 (Involuntary Manslaughter — Death from Firearm Intentionally Aimed without Malice) as requested by the prosecution.

The assistant prosecutor informed the trial judge that he had failed to use CJI 16:4:06 ("aiming without malice") as she had requested.T IIat 258.Defense counsel then indicated that he was satisfied with the charge as given.Id.Defense counsel said that the manslaughter charge was "entirely appropriate to this case."T IIat 259.

Thus, petitioner, through counsel, not only failed to object to omission of the instruction he claims should have been given, but clearly asked not to have the jury so instructed.Under the...