Mitchell v. Jones
| Decision Date | 05 December 2008 |
| Docket Number | No. 4:05-cv-58.,4:05-cv-58. |
| Citation | 622 F.Supp.2d 593 |
| Parties | Robert Cleveland MITCHELL III, Petitioner, v. Kurt JONES, Warden, and Patricia L. Caruso, Chief Administrator of the MDOC, Respondents. |
| Court | U.S. District Court — Western District of Michigan |
Robert Cleveland Mitchell, III, Detroit, MI, pro se.
Debra M. Gagliardi, MI Dept. Attorney General, Lansing, MI, for Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
On September 2, 2008, United States Magistrate Judge Hugh W. Brenneman, Jr. issued a Report and Recommendation ("R & R") recommending that Robert Cleveland Mitchell Ill's petition for writ of habeas corpus be denied. Petitioner has filed objections to the R & R. The court, having reviewed the R & R filed by the United States Magistrate Judge in this action as well as the amended petition, the respondents' answer, and the relevant portions of the file, agrees with the recommended disposition contained in the R & R.
The bulk of petitioner's objections is directed to the Magistrate Judge's analysis of petitioner's claim that the prosecution's presentation of a tape recording of a 911 call made by the victim's daughter-in-law violated his constitutional rights. Petitioner argues that the Magistrate Judge erred in analyzing this due process claim as one based on "false testimony" as opposed to "false evidence." According to petitioner, his claim has nothing to do with supposedly perjured testimony by the victim and her daughter-in-law, but instead involves the presentation of the 911 tape, which petitioner argues was "false and fabricated." Under the circumstances, petitioner argues, the Magistrate Judge applied the wrong analysis in addressing this claim.
Without question, "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (citations omitted). "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. Here, the Magistrate Judge applied the proper analysis to petitioner's claim, and reached a correct result.
To the extent that petitioner contends that the 911 tape was somehow staged or altered, he has not pointed to any evidence indicating that the tape was not authentic. It is noted that at trial, defense counsel did not object to the prosecution's playing of the 911 tape, which was presented during the testimony of the 911 dispatcher. Transcript of Jury Trial, Vol. III, Feb. 21, 2002 (docket no. 30) at 55-57. At one point during the cross-examination of the victim's daughter-in-law, Nicole Sparks, who testified immediately before the dispatcher, defense counsel even indicated that he himself wanted to play the tape for the jury. Id. at 53. In addition, although Sparks testified that she did not remember everything she said to the dispatcher during the 911 call, id. at 52, she also repeatedly testified that before she made the call, her mother-in-law had identified petitioner as the person who had injured her. Id. at 30, 45. Sparks also testified that she told the dispatcher it was petitioner who had beaten her mother-in-law. Id. at 33. Because petitioner has failed to demonstrate that the tape of the 911 call was anything other than what it purported to be, i.e., an actual recording of the call made by Sparks, the Magistrate Judge was correct in concluding that petitioner had entirely failed to demonstrate that the prosecution's use of the tape violated petitioner's right to due process.
The remainder of petitioner's objections to the R & R are similarly without merit. The court takes the occasion here to mention only one of these additional objections: that the court never ruled on petitioner's motion for evidentiary hearing and appointment of counsel. On April 25, 2007, petitioner filed a "Motion for Federal Evidentiary Hearing and Appointment of Counsel" (docket no. 54), seeking a hearing on the issue of ineffective assistance of counsel. On May 4, 2007, the Magistrate Judge entered an order denying petitioner's request for appointment of counsel (docket no. 55). In his order, the Magistrate Judge also indicated that the court could appoint counsel at a future time if an evidentiary hearing was necessary "or if other circumstances warrant." Therefore, although the order did not expressly deny petitioner's motion for evidentiary hearing, the denial was implied.1
The Magistrate Judge did not err in failing to grant petitioner an evidentiary hearing. The Antiterrorism and Effective Death Penalty Act ("AEDPA") has greatly curtailed federal habeas court discretion to conduct evidentiary hearings. "AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts." Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 n. 1, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(2)). "If a habeas petitioner has `failed to develop the factual basis of a claim in State court proceedings,' he can only get an evidentiary hearing in federal district court on that claim in extremely narrow circumstances." Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002). None of these circumstances are applicable here. See 28 U.S.C. § 2254(e)(2).2
Assuming that petitioner could avoid the 28 U.S.C. § 2254(e)(2) bar, the court nonetheless concludes that petitioner has not alleged sufficient facts to warrant an evidentiary hearing on the issue of ineffective assistance of counsel. The Supreme Court recently explained that, "[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro, 127 S.Ct. at 1940. Here, petitioner sought an evidentiary hearing on the issue of counsel's performance, namely, counsel's action (or inaction) in failing to provide certain documents to the prosecution. However, the Magistrate Judge properly disposed of petitioner's ineffective-assistance claim on the second prong of the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), concluding that petitioner could not demonstrate the he was prejudiced by counsel's alleged errors.3 Under the circumstances, an evidentiary hearing directed to the first prong of the Strickland test—counsel's performance— would not enable petitioner to succeed on his claim even if he could satisfy the requirements of section 2254(e)(2).
The court adopts the Magistrate Judge's R & R as the decision of the court. Judgment will be entered accordingly.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C § 2254. Petitioner was convicted by a Calhoun County jury of one count each of kidnaping, MICH. COMP. LAWS § 750.349, assault with intent to commit great bodily harm less than murder, MICH. COMP. LAWS § 750.84, assault with a dangerous weapon, MICH. COMP. LAWS § 750.82, and felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, together with two counts of felony firearm, MICH. COMP. LAWS § 750.227b. On March 14, 2002, he was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 750.769.12, to respective terms of imprisonment of 35 to 60 years, 8 to 20 years, 4 to 15 years, 4 to 10 years and 2 years. In his amended pro se petition, Petitioner raises five grounds for relief, as follows:
I. PETITIONER ROBERT C. MITCHELL'S CONSTITUTIONALLY IMPERMISSIBLE CONVICTIONS AND SENTENCES MUST BE REVERSED AND VACATED FOR NEW TRIAL SINCE HE WAS DELIBERATELY AND INTENTIONALLY DEPRIVED OF HIS FUNDAMENTALLY PROTECTED SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BEFORE A FAIR AND IMPARTIAL TRIBUNAL WHERE THE GOVERNMENT KNOWINGLY USED MATERIAL FABRICATED EVIDENCE DIRECTLY BEARING UPON THE CREDIBILITY AND RELIABL[ITY] OF ITS[] TWO KEY WITNESSES IN ORDER TO OBTAIN A TAINTED CONVICTION, AND, ALTHOUGH THE GOVERNMENT KNEW OR SHOULD HAVE KNOWN OF THE FALSITY, THEY DID ABSOLUTELY NOTHING TO CORRECT THE FALSE IMPRESSION OF FACTS LEFT WITH THE JURY, THEREBY VIOLATING PETITIONER'S CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT[S], U.S.C.A. CONST, AMS VI, XIV.
II. THE TRIAL COURT COMMITTED AN OUTCOME DETERMINATIVE ABUSE OF DISCRETION AND VIOLATED PETITIONER'S SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS AND CONFRONTATION CLAUSE RIGHTS BY EXCLUDING, AS AN EXCESSIVE REMEDY FOR TRIAL COUNSEL'S DISCOVERY VIOLATIONS, SUBSTANTIAL EVIDENCE BEARING UPON THE COMPLAINANT'S PROPENSITY TO OUTRIGHT LIE, BIAS AND VINDICTIVENESS, THEREBY DENYING PETITIONER'S VESTED CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND TO "EFFECTIVELY" PARTICIPATE IN THE ADVERSARIAL TESTING PROCESS VIOLATIVE OF U.S.C.A. CONST, AMS VI, XIV.
III. THE TRIAL COURT COMMITTED AN OUTCOME DETERMINATIVE ABUSE OF DISCRETION AND VIOLATED PETITIONER MITCHELL'S FUNDAMENTALLY PROTECTED DUE PROCESS AND CONFRONTATION CLAUSE RIGHTS TO "EFFECTIVELY" CROSS-EXAMINE THE COMPLAINANT BY EXCLUDING MATERIAL EVIDENCE OF THE COMPLAIN[AN]T'S MENTAL HEALTH DISORDER OFFERED TO ESTABLISH WHY SHE WOULD FALSELY ACCUSE PETITIONER, THEREBY DEPRIVING HIM OF A FAIR TRIAL VIOLATIVE OF U.S.C.A. CONST, AMS VI, XIV.
IV. DEFENSE COUNSEL'S DEFICIENT PRETRIAL PREPARATION PERFORMANCE VIOLATED PETITIONER MITCHELL'S CONSTITUTIONALLY PROTECTED SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL TRIAL, WHERE COUNSEL FAILED TO DISCLOSE TO THE GOVERNMENT CRITICAL DEFENSE DISCOVERY MATERIALS BEARING UPON THE COMPLAINANT'S BIAS, PREJUDICE, VINDICTIVENESS, AND PROPENSITY TO PURPOSEFULLY AND WILLINGLY LIE UNDER OATH AND MALICIOUSLY...
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