Ferrazza v. Tessmer

• Decision Date: 17 February 1999
• Docket Number: No. Civ. 97-CV-40233-FL.,Civ. 97-CV-40233-FL.
• Citation: 36 F.Supp.2d 965
• Parties: Dante FERRAZZA, Petitioner, v. Arthur TESSMER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

36 F.Supp.2d 965

Dante FERRAZZA, Petitioner, v. Arthur TESSMER, Respondent.

No. Civ. 97-CV-40233-FL.

United States District Court, E.D. Michigan, Southern Division.

February 17, 1999.

COPYRIGHT MATERIAL OMITTED

Dante Ferrazza, Kincheloe, MI, pro se.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GADOLA, District Judge.

Petitioner, Dante Ferrazza ("petitioner"), presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on one count of first degree murder, M.C.L. 750.316; M.S.A. 28.548. For the reasons stated below, petitioner's application for writ of habeas corpus is denied.

I. Background

Petitioner was convicted on June 15, 1967 of first degree murder in the Macomb County Circuit Court. On July 16, 1967, Judge Frank E. Jeanette sentenced petitioner to life imprisonment without parole.

On April 11, 1966, Gary Clark Grayvold, a former associate of petitioner's, was seen leaving the Pampa Lanes Bowling Alley in Washington Township, Michigan with petitioner and Harry "The Horse" Whitney. On May 6, 1966, Grayvold's body was discovered by fishermen floating near a dam in the Stoney Creek Metropark. Grayvold had been strangled to death, weighted with cement blocks, and thrown into the lake. Subsequent investigation by police determined that Gravyold had been lured to the Pampa Lanes Bowling Alley by petitioner to help get rid of some "hot money".

Petitioner and Harry Whitney were arrested on May 11, 1966 in Evanston, Illinois, where they had been arrested for committing an armed robbery. At the time of his arrest by the police in Evanston, Illinois, petitioner had a wallet in his possession containing false identification that had been used by the victim.

Petitioner and co-defendant were eventually extradited to Michigan. On June 15, 1967, petitioner was found guilty in the Macomb County Circuit Court of first degree murder. On July 16, 1967, Judge Frank E. Jeanette sentenced petitioner to life imprisonment without parole.

Petitioner appealed to the Michigan Court of Appeals, which affirmed the judgment and conviction.¹ The Michigan Supreme Court denied leave to appeal on October 24, 1969.² Petitioner subsequently filed three different delayed motions for new trials with the Macomb County Circuit Court between 1975 and 1981, all of which were denied. None of these motions raised the issue currently being raised in this petition for writ of habeas corpus.

Petitioner then sought the issuance of a writ of habeas corpus from this Court. Petitioner claimed that the trial court had deprived him of due process by failing to instruct the jury on lesser included offenses to the charged offense of first degree murder. Although the district court granted the petition, the Sixth Circuit Court of Appeals reversed the district court and reinstated petitioner's state conviction.³

In 1995, petitioner brought a motion for relief from judgment in the Macomb County Circuit Court, challenging the reasonable doubt instruction given to the jury by the trial court judge. The circuit court judge denied the motion for relief from judgment on July 21, 1995.⁴ The Michigan Court of Appeals denied petitioner's application for leave to appeal on May 17, 1996, stating that petitioner had failed to meet the burden of establishing that he was entitled to relief from judgment under MCR 6.508(D).⁵ The Michigan Supreme Court denied leave to appeal on January 31, 1997.⁶

On May 8, 1997, the United States Court of Appeals for the Sixth Circuit granted petitioner's motion to allow him to file a second or successive petition for writ of habeas corpus under 28 USCS § 2244(b)(3)(A).⁷

Petitioner has now filed this second petition for writ of habeas corpus and seeks relief on the following ground:

I. WAS THE DEFINITION OF REASONABLE DOUBT GIVEN BY THE TRIAL COURT TO THE JURY CONSTITUTIONALLY DEFICIENT, WHERE IT EQUATED REASONABLE DOUBT WITH MORAL CERTAINTY AND ALSO DEFINED REASONABLE DOUBT AS A FAIR OR HONEST DOUBT?

For the reasons stated below, the petition for writ of habeas corpus is denied.

II. Standard of Review

Review of a state court's decision under 28 U.S.C. § 2254 is governed by the standards established by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 26, 1996). The Act altered the standard of review that a federal court must use for writs of habeas corpus. As amended, 28 U.S.C. § 2254(d) provides:

(d) 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.

28 U.S.C. § 2254(d).

The first question that a federal court must ask is whether the state court's resolution of any legal questions underlying its decision on the claim was contrary to clearly established federal law. Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996); cert den. 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). The "unreasonable application" standard of review must mean more than that a federal court may grant habeas relief based upon its simple disagreement with the state court's decision. The use of the word `unreasonable' in this restrictive standard of review implies that federal courts must "respect all reasonable decisions of state courts." Drinkard, supra at 768.

A federal court must apply the presumption of correctness to state court findings of fact for habeas corpus purposes unless convincing evidence is offered to rebut this presumption. West v. Seabold, 73 F.3d 81, 83 (6th Cir.1996); cert den. 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1086 (1996). 28 USC 2254(e)(1).

To implement this new standard of review, the United States Court of Appeals for the Sixth Circuit chose to follow an approach employed by the United States Court of Appeals for the First Circuit in Martin v. Bissonette, No. 96-1856, 1997 WL 280602, *9 (1st Cir. May 29, 1997), withdrawn and new opinion issued, 118 F.3d 871 (1997). Harpster v. Ohio, 128 F.3d 322, 326-27 (6th Cir. 1997).⁸ First, the reviewing court should determine whether the Supreme Court has established a precedent which clearly compels an outcome for the issue at hand. Then, if no such Supreme Court precedent exists, the court should determine whether the state court decision involved an unreasonable application of federal law as established by the Supreme Court. Harpster, 128 F.3d at 327.⁹

Under the standard outlined in Harpster, the initial question is whether a Supreme Court precedent determines the outcome for the issues raised in the petition for writ of habeas corpus. If there is no Supreme Court precedent controlling those issues, then this Court must determine whether the state court decision on those issues constituted an unreasonable application of federal law as established by the Supreme Court.

III. Discussion

A. Instructions Given at Trial:

At petitioner's jury trial in state court, the judge gave the following instructions to the jury to define the meaning of reasonable doubt:

In determining the question of guilt or innocence the jury is bound to exclude entirely from their consideration of every fact and circumstance alleged or sought to be proved by the prosecution which is not proved to the moral certainty or a reasonable doubt.

* * * * * *

Now what do we mean by reasonable doubt? The word means just exactly what they say, a reasonable doubt is a doubt based upon reason. It's a fair doubt. It does not mean every conceivable kind of doubt or doubt that may be purely imaginary or fanciful, speculative, it means an honest doubt that appeals to your reason and is founded upon reason. A reasonable doubt is that kind of doubt. And this is, in my opinion, the best definition of reasonable doubt that we have. A reasonable doubt is that kind of doubt that would cause a person to hesitate to act in any of the important affairs of his own life. It is a doubt arising from the evidence or the lack of evidence after consideration of all the evidence. It's not a vague imaginary, speculative something, it's not a mere shadow, which doubt amounting to a mere possibility of innocence, it must be substantial to start with and it must grow out of some facts connected with this case and the testimony whereby your mind is unsettled and it must be fairly and honestly entertained by you. So keep this rule of reasonable doubt in your mind. After consideration of all the evidence you have no reasonable doubt you return a verdict of guilty as charged. If you do have a reasonable doubt in any respect throughout this case in any of the elements, which I will cover in detail, you must give the benefit of the doubt to the defendant and return a verdict of not guilty.

* * * * * *

Now, on reasonable doubt again, I have two definitions, two instructions that I would submit to you. No mere weight of evidence will warrant a conviction unless it's so strong and satisfactory as to remove from your mind all reasonable doubt of the guilt of the accused as you investigate this case along the lines of evidence, you are to say whether you find that kind of doubt in the proofs which causes you to hesitate and halt in your deliberation. If the train of circumstances stops and you are unable to (sic) fair, calm, unprejudiced discussion to get to that stopping place, then there is such a reasonable doubt growing out of the evidence in the case that...