Nali v. Phillips

Decision Date16 October 2014
Docket NumberCivil No. 2:07-CV-15487
PartiesFRANK NALI, Petitioner, v. THOMAS PHILLIPS, Respondent.
CourtU.S. District Court — Eastern District of Michigan

HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

OPINION AND ORDER ON REMAND DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

Frank Nali, ("petitioner"), presently on parole supervision with the Michigan Department of Corrections through the Detroit Metro Parole Office 1 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for extortion, M.C.L.A. 750.213. This matter is on remand from the United States Court of Appeals for the Sixth Circuit following the reversal of the issuance of a writ by this Court. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court in its original opinion and order granting habeas relief did an extensive recitation of the facts and procedural history of petitioner's case in the state courts. See Nali v. Phillips, 630 F. Supp. 2d 807, 810-14 (E.D. Mich. 2009). For the sake of brevity, the Court again adopts these facts and will add only those facts that are necessary for adjudicating petitioner's remaining claims.

The Court granted petitioner relief on his insufficient evidence claim. Nali v. Phillips, 630 F. Supp. 2d at 816-19. The Court denied petitioner relief on his ineffective assistance of counsel, substitution of counsel, and denial of self-representation claims. Id., at 819-22. The Court, however, did not address petitioner's remaining claims. Id., at 822.

The United States Court of Appeals for the Sixth Circuit reversed the Court's decision. Nali v. Phillips, 681 F. 3d 837 (6th Cir. 2012). The Sixth Circuit did not address the claims that the Court did not adjudicate but simply remanded "for entry of an order in compliance with this decision." Id. at 853.

On June 20, 2013, the Court reopened the petition to the Court's active docket and denied petitioner's motion to amend the petition to add an unexhausted claim involving the revocation of petitioner's parole. The Court gave petitioner thirty days to inform the Court whether he wished to withdraw hispetition to exhaust this new claim or whether he wished to proceed only with the exhausted claims that had not been adjudicated by the Court. Petitioner informed the Court that he wishes to proceed only with his exhausted claims. (See Dkts. # 95, 96).

In his petition for writ of habeas corpus, petitioner sought relief on the following claims:

I. Petitioner was denied due process and a fair trial because there was not sufficient evidence to convict Petitioner and the prosecutor failed to prove the elements of the crime existed.
II. Petitioner was denied his Sixth Amendment right when the court denied him new counsel, including the right to represent himself and denying him a continuance.

III. Petitioner was denied his constitutional right to effective assistance of counsel.

IV. Petitioner was denied due process and a fair trial due to prosecutorial misconduct.

V. Petitioner was denied due process and a fair trial due to errors by the trial court.

VI. MCL 750.213 is unconstitutional.

VII. The trial judge's actions amounted to misconduct and deprived Defendant of due process.

VIII. Petitioner was denied due process when the Michigan Parole Board failed to follow the statutory guidelines and procedures for determining his parolability.

The Court already adjudicated petitioner's first three claims in its original opinion and order. The Court addresses Petitioner's five remaining claims.2

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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.

A decision of a state court 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, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. 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." Id. at 410-11. "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

III. Discussion

A. Claim # 4. The prosecutorial misconduct claims.

In his fourth claim, petitioner contends that he was denied a fair trial because of prosecutorial misconduct.3

When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F. 3d 1348, 1355-56 (6th Cir. 1993). In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Id.

Petitioner first claims that the prosecutor elicited perjury by asking the following question to the complainant:

Q [by prosecutor]: There's this message asking you to contact him to resume the relationship?
A. [the complainant]: Well, to at least talk about it, right.

(Tr. 2/25/03, p. 42).

Petitioner claims that this testimony was false because no such telephone message was sent by him to the complainant.

The deliberate deception of a court and jurors by the presentation of known and false evidence is incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations omitted). To prevail on a claim that a conviction was obtained by evidence that the government knew or should have known to be false, a defendant must show that the statements were actually false, that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998). However, a habeas petitioner must show that a witness' statement was "indisputably false," rather than misleading, to establish a claim of prosecutorial misconduct or a denial of due process based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir. 2000).

Conclusory allegations of perjury in a habeas corpus petition must be corroborated by some factual evidence. Barnett v. United States, 439 F.2d 801,802 (6th Cir.1971). Petitioner presented no evidence that the complainant's testimony about this telephone message was false, accordingly, he is not entitled to relief on this claim.

Petitioner next claims that the prosecutor violated M.R.E. 404(b)'s prohibition on the introduction of "prior bad acts" evidence by referring to tapes and letters that petitioner sent to the complainant in the past. (Tr. 2/25/03, pp. 145-49).

It is "not the province of a federal habeas court to reexamine state-court determinations on state-court questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to deciding whether a state court conviction violates the Constitution, laws, or treaties of the United States. Id. Thus, errors in the application of state law, especially rulings regarding the admissibility of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000).

Petitioner's claim that the prosecutor violated M.R.E. 404(b) by admitting this evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court's habeas powers did not permit Court to reverse state court conviction based on their belief that the state trial judge erred in ruling that prior injury evidence was admissible as bad acts evidence under California law). The admission of this "prior bad acts" or"other acts" evidence against petitioner at his state trial does not entitle him to habeas relief, because there is no clearly established Supreme Court law which holds that a state violates a habeas petitioner's due process rights by admitting propensity evidence in the form of "prior bad acts" ev...

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