Elder v. Berghuis, Case No. 1:05-cv-780.
| Decision Date | 21 July 2009 |
| Docket Number | Case No. 1:05-cv-780. |
| Citation | 644 F.Supp.2d 888 |
| Parties | Albert ELDER #178185, Petitioner, v. Mary BERGHUIS, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
Albert Elder, Jackson, MI, pro se.
Raina Korbakis, MI Dept. Attorney General, Lansing, MI, for Respondent.
Sustaining the Respondent's Objections Regarding Batson Claim's Lack of Merit; Rejecting the R & R as to Batson Claim;
Accepting the R & R Without Objection as to All Other Claims and Issues;
Represented by counsel Terry Nolan ("Nolan"), Albert Norrese James Elder ("Elder") pled nolo contendere to two drug crimes—PWID 50 grams to less than 225 grams of cocaine and PWID marijuana—in exchange for dismissal of a charge of possession of a firearm during the commission of a felony. On the date scheduled for sentencing in July 2002, however, counsel Nolan failed to appear, and the court learned the next day that Nolan was suffering from "severe depression" and feared he was suffering a "nervous breakdown." The trial court recalled Nolan engaging in unprofessional conduct many times over the past 5-6 years, and in fact Nolan was arrested that day on cocaine-possession charges. Elder alleged that when he told counsel Nolan that he wanted to contest the charges at trial, Nolan started crying and said that his (Nolan's) life was ruined, which made Elder feel that he had no choice but accept the plea agreement because he lacked the funds to hire a different defense attorney. The trial court dismissed Nolan, appointed new counsel, and the court granted the parties' joint motion to vacate Elder's previous nolo contendere plea. Elder was tried in January 2003, but the court declared a mistrial when the jury was unable to reach a unanimous verdict.
Elder was tried again in March 2003. At voir dire (jury selection), the prosecution exercised peremptory strikes, to exclude from the jury three black persons (Lorettia Buggs, Prince Bartee, and Verna Williams), and one Hispanic person whose race is not specified in the record (Diane Herrera); the prosecution did not strike two white venirepersons, Mary Brandel and Donna Long. Upon inquiry by the court, the prosecution confirms that Elder's counsel lodged the Batson objections "before the jury was sworn in1 and before the trial judge had dismissed the members of the jury pool who were not chosen." See Doc. No. 40, Respondent's Answer to Court's Limited Factual Question, filed April 16, 2009 (citing Transcript of March 18, 2003 at pp. 167-69 and 182-86 and 190-91).
Following the second trial, the jury convicted Elder of the two drug crimes (the prosecution dropped the firearm charge before the second trial), and his status as a habitual offender led to sentences of 12-30 years on the PWID cocaine conviction plus a consecutive 2-6 years on the PWID marijuana conviction. Elder lodged a direct appeal on a variety of issues, including the claim that the trial court committed reversible error in overruling his Batson challenge to the prosecution's peremptory strike of three black jurors and one Hispanic juror of unspecified race. The direct appeal was unsuccessful, and the Michigan Supreme court refused discretionary review. See People v. Elder, No. 248287, 2005 WL 562638 (Mich.App. Mar. 10, 2005) (p.c.) (P.J. Schuette, Fitzgerald, Bandstra), leave to app. den., No. 128574, 474 Mich. 903, 705 N.W.2d 119, 2005 WL 2850963 (Mich. Oct. 31, 2005) (table).
In November 2005, Elder timely filed the instant petition, asserting seven grounds for federal habeas corpus relief, including the Batson claim. The Magistrate Judge recommends that this court (1) refuse to entertain Elder's Fourth Amendment search-and-seizure claim, see R & R at 12-13; (2) hold that he properly exhausted his Blakely and disproportionate-punishment sentencing claims but that they both lack merit, see R & R at 14-22; (3) deny his evidentiary claim on its merits, see R & R at 22-24; (4) deny his sufficiency-of-the-evidence claim on its merits, see R & R at 24-26; and (5) deny his claim that trial counsel Nolan or successor trial counsel Krueger rendered constitutionally ineffective assistance, see R & R at 26-36.
Because Elder has not filed objections with regard to the Magistrate's recommendations on the foregoing habeas claims, the court adopts the R & R without review as to those claims. See Nottingham v. SSA, 2009 WL 230131, *2 (W.D.Mich. Jan. 29, 2009) (Maloney, C.J.) () . Accord Coots v. Astrue, 2009 WL 1326260 (Van Tatenhove, J.) () (citation & quote marks omitted).2
DISCUSSION:
Batson Claim Lacks Merit
The respondent filed timely objections to the Magistrate's suggestion that Elder's Batson claim warrants habeas relief, and this court is persuaded by the objections.
On voir dire for Elder's second trial, the prosecution used peremptory strikes to exclude from the jury three black people (Lorettia [sic] Buggs, Prince [sic] Ella Bartee, and Verna Williams) and one Hispanic person (Diane Herrera, whose race or color is not readily ascertainable from the record). After all peremptory strikes were exercised by both sides, there were sixteen people left in the jury pool, two of whom were black (African-American), see Tr. 183-85, but the ultimate empaneled jury appeared to contain only white (European-American) people. Elder, who is black, contends that the prosecution exercised the peremptory strikes of the three black and one Hispanic venire persons with racially discriminatory intent, violating his federal constitutional right to the equal protection of the laws.
The Magistrate Judge correctly suggests that the Michigan trial court and the Michigan Court of Appeals applied the appropriate legal standard to Elder's Batson claim. See R & R at 40. As the Magistrate noted, id., that eliminated one of the two possible grounds for federal habeas relief under AEDPA, 28 U.S.C. § 2254(d), a legal determination that was contrary to or unreasonably applied clearly-established federal law. As the Magistrate also correctly noted, R & R at 39-40, this means that Elder is entitled to habeas relief on his Batson claim only if he shows that the Michigan courts rested their rejection of that claim on factual findings that were objectively unreasonable in light of the evidence presented to the state courts. See also Dennis v. Mitchell, 354 F.3d 511, 518 (6th Cir.2003).
When sitting in habeas, this court may not reject a state court's factual finding unless the petitioner rebuts it finding by clear and convincing evidence. See Terrell v. Berghuis, 2009 WL 799082, *3 (W.D.Mich. Mar. 23, 2009) (Maloney, C.J.) (citing Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.2009) (Gibbons, J., joined by Rogers, J.) (citing 28 U.S.C. § 2254(e)(1))), COA den., 2009 WL 1873808 (W.D.Mich. June 27, 2009). As our Circuit has explained,
Clear and convincing evidence is that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 991 (6th Cir.2007) (), cert. denied, ___ U.S. ___, 128 S.Ct. 1125, 169 L.Ed.2d 950 (2008). Emphasizing the strength of the deference which federal habeas courts accord to state courts' factual findings, our Circuit has stated flatly "`[t]he [federal] appeals court gives complete deference to the ... state court's findings of fact supported by the evidence.'" Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir.2007) (quoting McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004)), cert. denied, ___ U.S. ___, 128 S.Ct. 919, 169 L.Ed.2d 761 (2008); see also James v. Brigano, 470 F.3d 636, 643 (6th Cir.2006) (same) (citing Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994)), reh'g & reh'g en banc denied (6th Cir. May 15, 2007).
More specifically, the Supreme Court has cautioned that
[i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence will often be the demeanor of the attorney who exercises the challenge.
Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. The Supreme Court also holds that "[a]s with the state of mind of a juror, the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within a trial judge's province.'" Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).
In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court...
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