Reeves v. Stoddard

• Decision Date: 21 February 2019
• Docket Number: CASE NO. 2:14-CV-10977
• Parties: ROBERT REEVES, #135679, Petitioner, v. CATHLEEN STODDARD, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ROBERT REEVES, #135679, Petitioner, v. CATHLEEN STODDARD, Respondent.

CASE NO. 2:14-CV-10977

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 21, 2019

HON. GEORGE CARAM STEEH

OPINION AND ORDER AFTER REMAND DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, BUT GRANTING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. The matter is currently before the Court on remand from the United States Court of Appeals for the Sixth Circuit for further consideration of the petitioner's claim that his convictions and sentences for both child sexually abusive material or activity, MICH. COMP. LAWS § 750.145c(2), and using the computer/internet to commit that crime, MICH. COMP. LAWS § 750.145d(2)(f), violate the Double Jeopardy Clause. Reeves v. Campbell, 708 F. App'x 230 (6th Cir. 2017). The Sixth Circuit found that the petitioner's two offenses constitute the same statutory offense under the Double Jeopardy Clause because the lesser included offense, MICH. COMP. LAWS § 750.145c, requires no proof beyond that which is required for conviction of the greater offense, MICH. COMP. LAWS § 750.145d. Id. at 240 (citing Brown v. Ohio, 432 U.S. 161 (1977), and Blockburger v. United States, 284 U.S. 299 (1932)). The Sixth Circuit concluded that the Michigan Court of Appeals' rejection of the double jeopardy claim on the merits was thus contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court precedent. Id. at 241. The Sixth Circuit then determined that the respondent forfeited arguments that the Michigan Legislature authorized cumulative punishments and/or that the petitioner committed multiple criminal acts supporting the convictions on appeal by failing to raise them in district court and remanded the case for the parties to brief the two new arguments and for this Court to address whether the Michigan Legislature authorized cumulative punishments for the offenses at issue and whether the petitioner committed multiple criminal acts thereby permitting multiple punishments. Id. at 241-42.¹

The petitioner, who is represented by counsel on remand, was discharged from state custody on April 2, 2016 while the case was pending before the Sixth Circuit. See Offender Profile, Michigan Offender Tracking Information System ("OTIS"), http://mdocweb.state.mi.us/OTIS2/otis2.aspx?mdocNumber=135679. The parties have submitted supplemental briefing on the issues before the Court on remand.²

II. Discussion

A. Forfeiture

As an initial matter, the petitioner asserts that the respondent has forfeited the two defenses before the Court on remand by failing to previously raise them. The Court disagrees. First, the Sixth Circuit explicitly remanded the case to this Court for further consideration of those defenses. Had the Sixth Circuit believed them to be forfeited before the district court (not just for purposes of the appeal because they had not been previously raised), the Sixth Circuit would have just issued a finalruling on the double jeopardy claim without ordering a remand for further review.

Second, while a party may forfeit a claim or a defense by failing to raise it in a timely manner, such a drastic measure is not required and the Court has discretion to consider issues that are essential to the proper resolution of a case. See, e.g., Day v. McDonough, 547 U.S. 198, 209 (2006) (holding that "district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition" - even when the State fails to raise the issue); Granberry v. Greer, 481 U.S. 129, 133 (1987) (stating that an appellate court "is not required to dismiss for nonexhaustion notwithstanding the State's failure to raise it, and the court is not obligated to regard the State's omission as an absolute waiver of the claim"); see also Wood v. Milyard, 566 U.S. 463, 466 (2012) ("Our precedent establishes that a court may consider a statute of limitations or other threshold bar the State failed to raise in answering a habeas petition.").

Third, the petitioner is not entitled to habeas relief because the respondent failed to previously raise the defenses at issue on remand. It is well-established that a default judgment is unavailable in a habeas proceeding under 28 U.S.C. § 2254 based upon the State's failure torespond to the petition. See Allen v. Perini, 424 F.2d 134, 138 (6th Cir.1970); Alder v. Burt, 240 F. Supp. 2d 651, 677 (E.D. Mich. 2003); accord Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); Aziz v. Leferve, 830 F.2d 184, 197 (11th Cir. 1987); Lemmons v. O'Sullivan, 54 F.2d 357, 364-65 (7th Cir. 1985). The petitioner bears the burden of establishing that he is being held in violation of his constitutional rights and is entitled to federal habeas relief. See Williams v. Taylor, 529 U.S. 362 (2000); Perini, 424 F.2d at 138; Bradford v. Romanowski, No. 2:05-CV-72889, 2012 WL 441140, *9 (E.D. Mich. Feb. 10, 2012). Accordingly, the Court shall proceed to address the merits of the issues before the Court on remand.³

B. Merits

The Fifth Amendment to the United States Constitution commands that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause provides three basic protections: "[It] protects against a second prosecution for the same offense after acquittal. It protects against asecond prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Shiro v. Farley, 510 U.S. 222, 229 (1994) (citing United States v. Wilson, 420 U.S. 332, 339 (1975)).

In the context of multiple punishments, however, the Double Jeopardy Clause does not prohibit a state from defining one act of conduct to constitute two separate criminal offenses. As the Supreme Court has explained, "[b]ecause the substantive power to prescribe crimes and determine punishments is vested with the legislature . . ., the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus, "even if the two statutes proscribe the same conduct, the Double Jeopardy Clause does not prevent the imposition of cumulative punishments if the state legislature clearly intends to impose them." Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986). When "a legislature specifically authorizes cumulative punishments under two statutes, . . . a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulativepunishment under such statutes in a single trial." Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). In determining whether the a state legislature intended to authorize separate, cumulative punishments under the circumstances presented, the Court "must accept the state court's interpretation of the legislative intent for the imposition of multiple punishments." Brimmage, 793 F.2d at 1015; see also Hunter, 459 U.S. at 368.

Under Michigan law, the intent of the Legislature is determined first by the words of the statute itself. The Michigan Supreme Court has explained:

When interpreting statutes, our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language. In so doing, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.

Kemp v. Farm Bureau Gen. Ins. Co. of Mich., 500 Mich. 245, 901 N.W.2d 534, 538-39 (Mich. 2017) (quotations and citation footnotes omitted); see also Driver v. Naini, 490 Mich. 239, 802 N.W.2d 311, 316 (2011) ("Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning.").

In this case, the Michigan Legislature has expressed an intent formultiple punishments for the two offenses. The petitioner pleaded guilty to child sexually abusive material or activity in violation of MICH. COMP. LAWS § 750.145c(2), and using the computer/internet to commit that crime in violation of MICH. COMP. LAWS § 750.145d. The latter statute specifically provides that "[t]his section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate this section, including the underlying offense." MICH. COMP. LAWS § 750.145d(4). The next section of that statute provides that [t]his section applies regardless of whether the person is convicted of committing, attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense." MICH. COMP. LAWS § 750.145d(5). Additionally, the statute provides that the court "may order a term of imprisonment under this section to be served consecutively to any term of imprisonment imposed for conviction of the underlying offense." MICH. COMP. LAWS § 750.145d(3). The statutory language thus makes clear that it was the intent of the Michigan Legislature to authorize multiple punishments for the petitioner's two offenses. Consequently, it cannot be said that the petitioner's convictions for both child sexually abusive material or activity, MICH. COMP. LAWS § 750.145c(2), and using the computer/internet to commit that crime, MICH. COMP. LAWS §750.145d(2)(f), violate double jeopardy principles.

Both parties acknowledge that the Michigan courts have not addressed the double jeopardy issue or legislative intent with respect to the statutory provisions...