Harris v. Stegall

• Decision Date: 14 June 2001
• Docket Number: No. Civ. 00CV73782DT.,Civ. 00CV73782DT.
• Citation: 157 F.Supp.2d 743
• Parties: Kenneth Michael HARRIS, Petitioner, v. Jimmy STEGALL, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

157 F.Supp.2d 743

Kenneth Michael HARRIS, Petitioner, v. Jimmy STEGALL, Respondent.

No. Civ. 00CV73782DT.

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

June 14, 2001.

COPYRIGHT MATERIAL OMITTED

Kenneth Harris, New Haven, MI, Pro se.

Laura G. Moody, Brad H. Beaver, Michigan Department of Attorney General Habeas Corpus Division, Lansing, MI, for Respondent.

OPINION AND ORDER OF SUMMARY DISMISSAL

STEEH, District Judge.

Kenneth Michael Harris, ("petitioner"), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed through Douglas W. Baker and Marla R. McCowan of the Michigan State Appellate Defender Office, petitioner challenges his conviction on five counts of first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(f); M.S.A 28.788(2)(1)(f). Respondent has filed a motion for summary judgment on the ground that petitioner's claims are procedurally defaulted. For the reasons stated below, petitioner's application for a writ of habeas corpus is dismissed with prejudice.

I. BACKGROUND

Petitioner was convicted of the above offenses after a jury trial in the Macomb County Circuit Court on February 9, 1993. Petitioner's conviction was affirmed by the Michigan Court of Appeals on direct appeal. People v. Harris, # 165220 (April 4, 1997); rehearing den. 165220 (Mich.Ct. App. June 16, 1997). Petitioner never filed an application for leave to appeal to the Michigan Supreme Court.¹ However, petitioner, through the State Appellate Defender Office, filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. In that motion, petitioner again raised the six issues that he had raised in his appeal of right for the purpose of being able to exhaust his claims with the Michigan Supreme Court. Petitioner also raised four new additional claims. The trial court denied the first six claims pursuant to M.C.R. 6.508(D)(2), on the ground that these issues had already been decided against petitioner on his direct appeal. The trial court dismissed the four remaining claims pursuant to M.C.R. 6.508(D)(3), finding that petitioner had failed to establish cause and prejudice for his failure to raise these claims in his appeal of right. People v. Harris, 92-2000-FC; 92-2001-FC, 92-2002-FC (May 29, 1998) (Macomb County Circuit Court, May 29, 1998) (Bruff, J.). The Michigan Court of Appeals and Michigan Supreme Court denied petitioner leave to appeal on the ground that he had failed to show that he was entitled to relief under M.C.R. 6.508(D). People v. Harris, 219758 (Mich. Ct.App. September 27, 1999); lv. den. 461 Mich. 1015, 622 N.W.2d 522 (2000). Petitioner has now filed an application for writ of habeas corpus, seeking relief on the following grounds:

I. The court denied petitioner a fair trial where the court erroneously excluded impeachment evidence that was critical to the consent defense. Alternatively, counsel was ineffective.

II. Mr. Harris' right to the effective assistance of counsel was denied under the Federal and State constitutions where trial counsel did not object to the admission of numerous instances of improper arguments by the prosecutor; made no objection to repeated instances of inadmissible hearsay; did not object to testimony which vouched for the complainant's credibility; did not object to inadmissible testimony about Mr. Harris' post-Miranda silence; and did not call a physician at trial because he did not have the funds to pay him.

III. It was reversible error for the prosecutor to appeal to the sympathy of the jurors by appealing to their emotions regarding sexual assaults against children, by denigrating Mr. Harris, and by arguing "evidence" not of record at trial; and defense counsel's failure to object constitutes ineffective assistance of counsel.

IV. Mr. Harris was denied his state and federal right to the effective assistance of counsel on appeal due to appellate counsel's failure to follow through in his appellate strategy by failing to file an application for leave to appeal in the Michigan Supreme Court and by structuring the motion for relief from judgment in such a way that meaningful review in a federal writ of habeas corpus petition has been denied.

Respondent has now moved for summary judgment, claiming that petitioner's claims are procedurally defaulted.

II. DISCUSSION

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir.2000); cert. den. 531 U.S. 1014, 121 S.Ct. 571, 148 L.Ed.2d 489 (2000) (quoting Fed.R.Civ.Proc. 56(c)). To defeat a motion for summary judgment, the nonmoving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Sanders, 221 F.3d at 851. The summary judgment rule applies to habeas proceedings. Hauck v. Mills, 941 F.Supp. 683, 686-687 (M.D.Tenn.1996).

In their motion for summary judgment, respondent contends that petitioner's first claim is procedurally defaulted pursuant to M.C.R. 6.508(D)(3), because he failed to establish cause and prejudice for failing to raise the claim on his appeal of right. Respondent contends that petitioner's second and third claims are procedurally defaulted because although they were raised in his appeal of right to the Michigan Court of Appeals, petitioner never sought leave to appeal with the Michigan Supreme Court after the Michigan Court of Appeals rejected his appeal by right. Petitioner claims that he can establish cause for his procedural default because of the ineffective assistance of appellate counsel.

When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Bell v. Smith, 114 F.Supp.2d 633, 638 (E.D.Mich.2000) (Gadola, J). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); See also Hilliard v. United States, 157 F.3d 444, 450 (6th Cir.1998).

Ineffective assistance of counsel may be cause for procedural default. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. 2639; Richardson v. Elo, 974 F.Supp. 1100, 1104 (E.D.Mich.1997) (Gadola, J.). Not just any deficiency in counsel's performance will excuse a procedural default, however; the assistance must have been so ineffective as to violate the Federal Constitution. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Attorney error that falls short of constitutional ineffective assistance of counsel does not constitute cause to excuse a procedural default. Bruton v. Phillips, 64 F.Supp.2d 669, 682-683 (E.D.Mich.1999) (Gadola, J.). If petitioner's ineffective assistance of appellate counsel claim lacks merit, it cannot constitute cause to excuse his default. Sherrill v. Hargett, 184 F.3d 1172, 1176 (10th Cir. 1999).

The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). However, court appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). An attorney's failure to present a nonmeritorious issue on appeal does not constitute ineffective assistance of counsel. Daniel v. Overton, 845 F.Supp. 1170, 1176 (E.D.Mich.1994) (Gadola, J.).

Petitioner first claims that the trial court erroneously excluded impeachment evidence that was critical to his consent defense. Petitioner had been charged with five counts of first-degree criminal sexual conduct under a theory that petitioner had caused personal injury to the victim and force or coercion had been used to accomplish sexual penetration. Petitioner's defense was that the fourteen year old victim had consented to these acts. Had a consent defense been successful, it would have reduced the charge from a life offense of first-degree criminal sexual conduct to the lesser offense of third-degree criminal sexual conduct M.C.L.A. 750.520d; M.S.A. 28.788(4).

In the present case, petitioner sought to impeach the victim's testimony that petitioner had forcibly sodomized him by asking Detective Thomas Albin of the Clinton Township Police about statements that the victim had made during his interview which petitioner claims would have impeached the victim's credibility and shown that...