Gilmore v. Harry
| Decision Date | 01 November 2016 |
| Docket Number | Case No. 2:09-cv-10110 |
| Parties | GEARY GILMORE, Petitioner, v. SHIRLEE HARRY Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Nancy G. Edmunds
This is a habeas corpus case filed under 28 U.S.C. § 2254 by a state prisoner who was convicted in 1974 along with two other men of two counts of first-degree murder. The three defendants were accused of murdering two young boys after their ransom demands were not met. The Court denied the petition on March 30, 2016. Presently before the Court is Petitioner's motion to make additional findings under Rule of Civil Procedure 52(b), in which he seeks reconsideration of the Court's decision denying him habeas relief.1
Petitioner primarily complains that Respondent failed to file the portions of the trial record necessary for a fair review of his claims. He argues the Court erroneously relied on a statement of facts contained in the state trial court's order denying his motion for relief from judgment. Petitioner notes that the statement of facts was adopted by the trial court from purportedly biased statement of facts appearing in an earlier pleading filed by the prosecutor.
In response to the motion, Respondent filed what appears to be a complete copy ofthe record from Petitioner's 1974 jury trial, which includes 40 transcript volumes, as well as a response to Petitioner's claims. See Dkts. 63 and 64. Upon review of the motion, response, and the record of the trial court proceedings, the Court finds that it was not misled by the trial court's statement of facts, 0and it correctly determined that Petitioner's claims lack merit. The motion to make additional findings will therefore be denied.
Federal Rule of Civil Procedure 52(b) provides that FED. R. CIV. P. 52(b). The Court construes Petitioner's pro se pleading as also seeking an order altering or amending the Court's decision denying his petition pursuant to Rule 59(e). A motion under this rule may be granted only if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. GenCorp., Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). The Sixth Circuit has "repeatedly held that a Rule 59(e) motion 'does not permit parties to . . . re-argue a case' and 'cannot be used to present new arguments that could have been raised prior to judgment.'" Schellenberg v. Twp. of Bingham, 436 F. App'x 587, 598 (6th Cir. 2011) (quoting Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)).
Petitioner first asserts that Respondent failed to comply with Rule 5(d)(1) of the Rules Governing Section 2254 Cases when it failed to file the trial transcripts along with its initial responsive pleading to the petition. He notes that the Court relied upon a statementof facts contained in the trial court's order denying Petitioner's motion for relief from judgment. Petitioner asserts that the trial court's statement of facts constitutes an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) because it adopted a purportedly inaccurate statement of facts submitted by the prosecutor in an earlier filed pleading.
In § 2254 proceedings, the state must indicate in its responsive pleading what transcripts are available and what proceedings have been recorded but not transcribed. See Rule 5(c) of the Rules Governing Section 2254. If the state fails to submit the entire record, any decision by the district court on the merits may be subject to challenge. See, e.g., Nash v. Eberlin, 437 F.3d 519, 523-34, 2006 FED App. 0057P (6th Cir. 2006) (vacating judgment where district court did not have complete state court transcript and review of the additional evidence was required).
When Respondent filed its initial response to the petition, it filed portions of the state appellate record, as well as some of the pleadings filed in the state courts during state post-conviction review, but it did not file any of the trial transcripts. See Dkt. 47. Most of Petitioner's claims, not surprisingly, concern matters contained in the trial transcripts. It was therefore incumbent on Respondent to file the portions of the state court record pertaining to Petitioner's claims.
Nevertheless, the error in failing to file the transcripts has now been cured because Respondent has filed what appears to be the complete trial record. See Dkt. 64. The Court has now had an opportunity to review Petitioner's claims in light of the trial record. Though the trial court's statement of facts does seem to be a copy of a statement of facts submitted by the prosecutor, see Dkt. 47-2, after review of the trial record, the Court concludes thatit accurately summarized the trial proceedings, and it does not constitute an unreasonable determination of the facts contrary to § 2254(d)(2).
The Court finds that the failure to file the trial transcripts does not provide a basis for relief because, for the reasons that follow, none of Petitioner's claims merit relief in light of the trial record.
Petitioner argues that the Court incorrectly determined that his appellate counsel was not ineffective for omitting a claim that the trial court failed to administer the jury oath prior to trial. The parties agree that the transcripts do not indicate that the jury was administered an oath prior to trial. It does not follow, however, that Petitioner is entitled to relief on this claim.
First, as an independent federal claim, there is no clearly established Supreme Court law requiring reversal where, absent an objection, a jury is not admitted an oath prior to a criminal trial. See, e.g., United States v. Turrietta, 696 F.3d 972, 982 (11th Cir. 2012) ().
Next, as the predicate to an ineffective assistance of appellate counsel claim, the argument fairs no better. In People v. Cain, 498 Mich. 108 (2015), the Michigan Supreme Court held that it was not plain error requiring a new trial where the jury was not properly sworn before it deliberated to a guilty verdict in a criminal case absent objection. Cain overruled other Michigan cases, such as People v. Allen, 299 Mich. App. 205, 219 (2013), on which Petitioner relies. Whether or not the claim would have found support under Michigan law at the time of his direct appeal, Petitioner cannot demonstrate that he hassuffered prejudiced under the Strikcland standard by his appellate counsel's failure to raise the issue because the claim is without merit in light of the current state of the law. See Lockhart v. Fretwell, 506 U.S. 364, 373 (1993).
Finally, the claim fails for the reasons stated in the Court's initial opinion denying habeas relief. Appellate counsel raised substantial claims during Petitioner's direct appeal. His decision to raise those claims in favor of an unpreserved jury oath claim did not constitute deficient performance. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983).
Petitioner asserts that the trial transcripts support his claim that the trial court made comments throughout trial indicating his bias. In the initial opinion denying the petition, the Court examined this claim in light of the statement of facts contained in the state trial court's opinion. See Dkt. 56, at 14-15. The Court has now had the opportunity to review the allegations of bias in light of the actual trial record. A review of the record confirms the accuracy of the state trial court's statement of facts, and it confirms the Court's finding that the challenged remarks amounted to nothing more than expressions of "impatience, dissatisfaction, or annoyance," not meriting relief. See Liteky v. United States, 510 U.S. 540, 555 (1994). This claim is without merit.
Petitioner argues that the trial record shows that he was not allowed to examine a document used to refresh the recollection of prosecution witness Carrol Payne, and therefore he was unable to cross examine the witness regarding the document.
Again, review of the trial transcripts confirms the Court's assessment of the claim. During direct examination of Payne, the prosecutor asked the witness whether sheremembered telling him about overhearing a statement co-defendant Holloway made. Dkt. 64-21, at 1119. The prosecutor showed the witness a piece of paper in an effort to refresh her recollection. Id. Defense counsel objected, and the prosecutor indicated that he was using "notes of our conversation." Id., at 1120. The trial court allowed the witness to read part "11(d)" of the notes. Id., at 1121-22. Defense counsel objected that they were not permitted to examine the entire document. Id. The Court indicated that it only allowed the witness to read "11(d)" and that portion was made available to defense counsel. Id., at 1122-23.
Accordingly, a review of the record does not alter the Court's analysis of the claim. Contrary to Petitioner's argument, the defense attorneys were permitted to examine the portion of the document shown to the witness, and they were therefore not prohibited from cross-examining the witness on that basis.
Petitioner argues that the Court misapprehended his claim that the prosecutor knowingly offered the false testimony of prosecution witness Payne regarding statements she heard made by co-defendant Smith in Petitioner's presence. Petitioner asserts that Payne could not have heard Smith say on December 4, 1973, that ...
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