Foster v. Ludwick

• Decision Date: 22 May 2002
• Docket Number: No. 01-CV-71090-DT.,01-CV-71090-DT.
• Parties: Joseph FOSTER, Petitioner, v. Nick LUDWICK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 750

208 F.Supp.2d 750

Joseph FOSTER, Petitioner, v. Nick LUDWICK, Respondent.

No. 01-CV-71090-DT.

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

May 22, 2002.

OPINION AND ORDER DENYING HABEAS CORPUS PETITION

ROSEN, District Judge.

I. Introduction

This matter is pending before the Court on petitioner Joseph Foster's pro se habeas corpus petition under 28 U.S.C. § 2254. On February 21, 1997, a jury in Oakland County, Michigan found Petitioner guilty of possession with intent to deliver less than fifty grams of heroin, MICH. COMP. LAWS § 333.7401(2)(a)(iv), and possession of marijuana, MICH. COMP. LAWS § 333.7403(2)(d). These convictions arose from the execution of a search warrant at 223 Elm Street in Pontiac, Michigan on August 5, 1994.

On prior occasions, two vehicles owned by [Petitioner] and registered at that address were seen parked in front of the house. On the date in question, only one of [Petitioner's] vehicles was present. The officers decided to wait for [Petitioner's] second vehicle to return. While they waited, they observed a man, later identified as Eddie Otis Williams, exit the house, stand on the porch and then reenter the house several times. [Petitioner] eventually returned, but left soon after in a car with Williams. The police stopped the car a short distance from the house and detained both men. Williams was released after the police determined he lived in Detroit. Upon searching the residence at 223 Elm, the police found 3.754 grams of heroin, .24 grams of marijuana, several firearms and $1,160 cash. They also found an electronic scale containing a white powder residue, drug packaging material and drug ledgers. Several bills and other items bearing [Petitioner's] name were found inside the house. No evidence was found suggesting anyone, aside from [Petitioner], lived in the house.

People v. Foster, No. 210276, 2000 WL 33521075 at **1-2 (Mich.App. Mar.24, 2000).

After the jury convicted Petitioner, he pleaded guilty to being a fourth habitual offender, MICH. COMP. LAWS § 769.12. On March 12, 1997, Petitioner pleaded no contest to two counts of possession of a firearm by a felon, MICH. COMP. LAWS § 750.224f.¹

The trial court sentenced Petitioner to a term of six to twenty years in prison for the heroin conviction, one year in jail for the marijuana conviction, and fourteen months to fifteen years in prison on each firearm conviction. The sentences for the firearm convictions ran concurrently to each other, but consecutively to the sentences on the narcotics charges.

Petitioner raised his habeas claims in an appeal from his narcotics convictions. The Michigan Court of Appeals affirmed the convictions in an unpublished, per curiam opinion. See Foster, Mich.Ct.App. No. 210276, 2000 WL 33521075 at *1. Petitioner raised the same claims in an application for leave to appeal before the Michigan Supreme Court. The supreme court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed...." People v. Foster, 463 Mich. 877, 617 N.W.2d 695 (Mich. 2000).

Petitioner filed his habeas petition on May 2, 2001. The grounds for relief read as follows:

I. The charges against defendant must be dismissed as the prosecution violated the Interstate Agreement on Detainers by sending Mr. Foster back to the federal correctional institution before final disposition of the instant charges.

II. The prosecutor denied defendant a fair trial by introducing the contents of defendant's `resume' under the guise of introducing evidence of residency, and then using it to argue that defendant's previous job as a drug counselor made his crime worse, knowing that a juror had been so unfairly influenced by that information that the trial court dismissed the juror for cause; it was a serious mistake of counsel to have failed to object to the introduction of the resume.

III. Defendant's Fifth Amendment rights were violated when the prosecutor elicited evidence that a federal agent spoke to defendant at the jail where the trial court had granted defendant's motion to suppress his statement because it was in violation of Miranda v. Arizona.

IV. Defendant was denied a fair trial where the trial court denied his motion to suppress evidence regarding the search warrant and also declined to order the prosecutor to disclose the identity of the confidential informant whose information formed the justification for issuance of the warrant; it was also error to deny the motion to suppress the firearms found during the search.

V. The prosecutor denied defendant a fair trial by numerous improper and unfairly prejudicial comments, including blatant civic duty arguments, remarks denigrating defense counsel and disparaging defendant, and arguments based on information not introduced into the record.

VI. The trial court denied defendant a fair trial by granting the prosecutor's request, over objections, for a special instruction on constructive possession.

VII. The evidence was insufficient to support the conviction of possession with intent to deliver controlled substances.

Respondent urges the Court to deny the habeas petition for the following reasons:

I. Petitioner's first habeas claim asserting that he is entitled to dismissal of the charges against him because the Interstate Agreement on Detainers was violated fails to assert that the determination of the Michigan Court of Appeals is unreasonable.

II. Petitioner's second habeas claim is barred by his procedural default of failing to contemporaneously object to the alleged errors at trial.

III. Petitioners' third habeas claim has no merit because his Fifth Amendment rights have not been violated.

IV. Petitioner's fourth habeas claim fails to demonstrate that the adjudication of this claim by the Michigan Court of Appeals was an unreasonable application of federal law as determined by the Supreme Court of the United States.

V. Petitioner failed to show the misconduct of the prosecutor so infected the trial with unfairness as to make the resulting conviction a denial of due process.

VI. Petitioner's sixth habeas claim asserting that the trial court failed to properly instruct the jury is not reviewable in a federal habeas proceeding.

VII. Petitioner's seventh habeas claim that there was insufficient evidence is meritless because the Michigan Court of Appeals determination that there was sufficient evidence is not unreasonable.

II. Standard of Review

Petitioner is entitled to the writ of habeas corpus 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). 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, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

"[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495.

III. Discussion

A. The Interstate Agreement on Detainers

Petitioner was convicted and sentenced in federal court following his arrest in this case, and he was a federal prisoner by the time he was tried in state court. He alleges that the prosecution violated Article IV(e) of the Interstate Agreement on Detainers (IAD) by sending him back to federal prison before disposing of the state charges.

The Michigan Court of Appeals concluded on the basis of state decisions that the IAD did not apply because Petitioner did not notify the prosecutor that he wanted to dispose of the state charges and because the prosecution did not file a detainer. The court of appeals also noted that Petitioner's transfer out of federal prison did not frustrate the purpose of the IAD because he had not begun any rehabilitative program in federal prison.

The IAD is an interstate compact, which creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime.

The Agreement provides for expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his sentence in the sending State. And it seeks to minimize the consequent interruption of the prisoner's ongoing prison term.... Article IV(e) prohibits return of the individual to the sending State before that trial is complete. It says:

If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) here, such indictment, information, or complaint shall not be of any further force or...