Paluskas v. Bock

• Decision Date: 13 January 2006
• Docket Number: No. 01-10134-BC.,01-10134-BC.
• Parties: Troy D. PALUSKAS, a/k/a Troy D. Paluska, Petitioner, v. Barbara BOCK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

410 F.Supp.2d 602

Troy D. PALUSKAS, a/k/a Troy D. Paluska, Petitioner, v. Barbara BOCK, Respondent.

No. 01-10134-BC.

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

January 13, 2006.

COPYRIGHT MATERIAL OMITTED

Troy Paluskas, Kincheloe, MI, pro se.

Michelle M. Rick, State Attorney General's Office, Habeas Corpus Division, William C. Campbell, Michigan Department of Attorney, General Habeas Corpus Division Brenda E. Turner, State of Michigan Attorney Generals Off. Highway Negligence, Lansing, MI, for Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

LAWSON, District Judge.

The petitioner, Troy D. Paluskas, a state inmate presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is in custody in violation of his constitutional rights. The petitioner was convicted on March 3, 1995 of second-degree murder, Mich. Comp. Laws § 750.317, and possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b, following a jury trial in a Detroit, Michigan Recorder's Court. The petitioner was sentenced to twenty-five to fifty years in prison on the second-degree murder conviction and a consecutive two-year prison term on the felony firearm conviction. In his pleadings, the petitioner challenges the constitutionality of the state trial judge's instructions to the jury and the use of his silence against him during sentencing; he also asserts that his appellate counsel was ineffective for failing to file a brief in his appeal. The respondent contends that the petitioner's claims are procedurally defaulted and otherwise without merit. The Court finds that the petitioner's procedural default is excused by the ineffective assistance of state appellate counsel. However, the Court does not believe that the state convictions transgress the petitioner's rights under the Constitution or laws of the United States. Therefore, the Court will deny the petition.

I.

The charges arose from the shooting death of Fred "Scotty" Burns during an altercation at a bar in Detroit, Michigan where the petitioner worked as a doorman. The testimony at trial indicated that Burns' girlfriend was attacked outside of the bar by a gang of women who did not like her. Burns tried to drive the women away and a fight ensued, drawing a number of participants. At some point, Burns ran away from the altercation and the petitioner followed, firing a number of shots in Burns' direction. Burns was killed by a bullet that struck him in the back and exited through his chest.

Following his conviction, the petitioner retained his trial counsel, Ben M. Gonek, as appellate counsel, and Gonek filed a claim of appeal on May 5, 1995. However, Gonek never filed an appellate brief. In an affidavit, Gonek explained that the petitioner was not responsible in any way for the failure to file an appellate brief in his case. Gonek further states that he was suspended from the practice of law on July 11, 1997 for 180 days due to the neglect of appellate matters. Affidavit of Ben M. Gonek, ¶¶ 5, 8.

The Michigan Court of Appeals dismissed the petitioner's appeal and ordered his appellate counsel to pay $200 for allowing the appeal to be involuntarily dismissed. People v. Paluski (sic),^* No. 185641 (Mich.Ct.App. May 7, 1996). Thereafter, the petitioner filed a motion to vacate the order of involuntary dismissal, which was denied by the Michigan Court of Appeals. People v. Paluska (sic), No. 185641 (Mich.Ct.App. October 16, 1996). The Michigan Supreme Court denied the petitioner's delayed application for leave to appeal, but held that "[i]n light of the circumstances that caused the Court of Appeals to dismiss the defendant's appeal, the denial of the application is without prejudice to the right of the defendant to petition the Recorder's Court for the City of Detroit to appoint counsel to assist the defendant if he chooses to file a motion for relief from judgment pursuant to MCR 6.501 et seq." People v. Paluska (sic), 456 Mich. 872, 569 N.W.2d 166 (1997).

The petitioner then filed a request for the appointment of counsel in the trial court, and the State Appellate Defender Office was appointed to represent him. New counsel then filed a motion for relief from judgment in the trial court, raising the issues that the petitioner raises in his application for habeas relief. The motion for relief from judgment was denied on the merits by the trial court. People v. Paluska (sic), No. 94-4980 (3d Judicial Circuit Court Dec. 7, 1998). The Michigan Court of Appeals denied the petitioner's application for leave to appeal, finding that he had failed to establish entitlement to relief pursuant to Michigan Court Rule 6.508(D). The court reasoned that "[a]lthough appellate counsel committed a serious mistake in failing to pursue the original appeal, defendant was not prejudiced where there is no merit to the substantive issues raised." People v. Paluska (sic), No. 216462 (Mich. Ct.App. June 25, 1999). The Michigan Supreme Court denied leave to appeal because the court was "not persuaded that the questions presented should be reviewed by this Court." People v. Paluska (sic), 461 Mich. 996, 610 N.W.2d 926 (2000). The petitioner now seeks habeas relief on the following grounds:

I. This Court should consider Troy Paluska's [sic] arguments on the merits because due to the ineffective assistance of his previous counsel, Ben Gonek, the Court of Appeals dismissed Paluska's appeal of right and no court has considered the merits of his issues.

II. The trial judge violated Troy Paluska's [sic] rights to due process, to a fair trial, and to have the jury convinced of his guilt by proof beyond a reasonable doubt because the instructions employed condemned and incorrect language to describe the prosecutor's burden in a criminal case, including language on "moral certainty" and a doubt based on reason.

III. By considering his silence and his failure to explain what happened at the shooting as factors against him and by sentencing Troy Paluska [sic] to a term of twenty-five to fifty years, the sentencing judge abused her discretion and violated Paluska's [sic] constitutional rights.

II.

The respondent initially contends that the petition is time-barred by the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), 28 U.S.C. § 2244(d). However, these arguments previously were raised by the respondent in a motion to dismiss and were rejected by this Court. Paluskas v. Bock, No. 01-10134 (E.D.Mich. Sept.30, 2002). The respondent has failed to offer any new arguments in support of her claim that the petition is untimely, nor has she styled her presentation of this issue as a motion for reconsideration under E.D. Mich. LR 7.1(g) or a motion for relief from the order pursuant to Federal Rule of Civil Procedure 60(b). The Court finds no reason to change its prior ruling or dismiss the petition on that ground.

The respondent also argues that the petitioner's claims are procedurally defaulted because he raised them for the first time in a motion for post-conviction relief and has failed to establish cause and prejudice as required by Michigan Court Rule 6.508(D)(3) to excuse the default.

The doctrine of procedural default in the federal habeas context provides:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In this Circuit, the assessment of the affirmative defense of procedural default requires the application of the four-part test set forth in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986).

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.

. . .

Second, the court must decide whether the state courts actually enforced the state procedural sanction.

. . .

Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.

. . .

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate ... that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Ibid. (citations and footnote omitted).

In this case, it appears that a state procedural rule was in place during the relevant time, namely that a Michigan court may not grant relief upon a motion for relief from judgment under the rule if the grounds for relief in the motion could have been raised on appeal from the conviction or in a prior motion. See Mich. Ct. R. 6.508(D). It also appears that the Michigan courts actually enforced the rule in this case: the Michigan Court of Appeals expressly relied on Rule 6.508(D) when it denied leave to appeal. People v. Paluska (sic), No. 216462 (Mich. Ct.App. June 25, 1999). The Sixth Circuit Court of Appeals has held that Rule 6.508(D) is an independent and adequate ground for procedural default. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir.2005); Simpson v. Jones, 238 F.3d 399, 407 (6th Cir.2000).

The remaining question is whether the petitioner has demonstrated "cause" for the failure to adhere to...