Salem v. Yukins

• Decision Date: 07 February 2006
• Docket Number: No. 03-74315.,03-74315.
• Citation: 414 F.Supp.2d 687
• Parties: Amira Sami SALEM, Petitioner, v. J. YUKINS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 687

414 F.Supp.2d 687

Amira Sami SALEM, Petitioner, v. J. YUKINS, Respondent.

No. 03-74315.

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

February 7, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher J. McGrath, Novi, MI, for Petitioner.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

FRIEDMAN, Chief Judge.

I. Introduction

Petitioner Amira Sami Salem, through counsel, has filed a petition for a writ of habeas corpus. Petitioner is currently incarcerated at the Huron Valley Womens Complex in Ypsilanti, Michigan, pursuant to convictions for delivery of between 225 and 650 grams of heroin and conspiracy to deliver between 225 and 650 grams of heroin. The Court concludes that Petitioner was denied her Sixth Amendment right to a public trial when the trial court closed her entrapment hearing to the public. The Court, therefore, conditionally grants a writ of habeas corpus.

II. Background

Petitioner's convictions arise out of the sale of 250 grams of heroin to undercover Clinton Township police sergeant Jim Hurley on March 7, 1995. Sergeant Hurley testified that, on that date, while working undercover, he called Petitioner and informed her that he wanted to purchase heroin from her, but that he would like to obtain a sample first to test the quality. Petitioner advised Hurley that her co-defendant, Bettina Schreck, was picking up the sample. At approximately 7:00 p.m., Petitioner and Schreck met Hurley in a restaurant parking lot in Warren, Michigan. Petitioner entered Hurley's vehicle and gave him the heroin sample. Hurley told Petitioner he would call her after he tested the heroin. Later that night, Hurley telephoned Petitioner to tell her that he was satisfied with the sample and wanted to continue with the full heroin purchase. Hurley testified that Petitioner told him that she could provide him with 250 grams of heroin for $35,000. They arranged to meet at a restaurant parking lot in Clinton Township for the sale.

At approximately 9:10 p.m., Petitioner and Schreck arrived at the parking lot, where Hurley and a number of back-up officers, were waiting. Hurley testified that Schreck exited the vehicle, which was driven by Petitioner, entered Hurley's vehicle, and delivered to Hurley a bag containing a substance later determined to be 249.66 grams of heroin. The back-up officers then arrested Petitioner and Schreck.

III. Procedural History

Following a jury trial in Macomb County Circuit Court, Petitioner was convicted of delivery of between 225 and 650 grams of heroin, and conspiracy to deliver between 225 and 650 grams of heroin. On July 31, 1997, Petitioner was sentenced to twenty to thirty years imprisonment for each of the convictions, to be served consecutively. Petitioner was tried jointly before a single jury with Bettina Schreck.

Prior to trial, Petitioner filed a motion to dismiss on the ground that she had been entrapped. After an entrapment hearing, the trial court denied the motion.

After her conviction, Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:

I. Did defendant receive ineffective assistance of counsel such that she is entitled to a new trial?

A. Defense counsel's decision to elicit meetings between defendant and James Hursley that led to the heroin sale in this case opened the door to the only incriminating evidence against defendant for conspiracy to deliver between 225 and 650 grams of heroin.

B. Defense counsel's decision to ask defendant whether she had ever been a drug addict opened the door to evidence of a prior German drug conviction that damaged her credibility.

C. Defense counsel's decision to invoke the defense of jury nullification cannot be deemed sound trial strategy.

II. Was the trial court's decision to permit the prosecution to ask defendant about her prior German drug conviction an abuse of discretion?

III. The cumulative effect of the errors at defendant's trial were so prejudicial as to deny her a fair trial.

IV. Was the trial court's ruling that there was no entrapment clearly erroneous?

V. At sentencing, defendant asked the court to deviate below the presumptive mandatory minimum sentence. The trial court declined. Was this ruling clearly erroneous and an abuse of discretion?

Petitioner also filed a pro per supplemental brief, presenting the following claim:

Did the police officials abuse their authority in obtaining the evidence by overstepping their legal boundaries or withholding evidence?

The Michigan Court of Appeals remanded the case to the trial court for a new entrapment hearing at which the defense would be given an opportunity to confront and cross-examine informant Joe Issa. People v. Salem, No. 205746, 2001 WL 789538 (Mich.Ct.App. Jan. 12, 2001) ("Salem I".) The Michigan Court of Appeals retained jurisdiction over the matter.

On remand, the trial court conducted another entrapment hearing, during which Petitioner was permitted to cross-examine informant Joe Issa. Following the entrapment hearing, the trial court issued an opinion and order denying Petitioner's motion to dismiss on the basis of entrapment. People v. Salem, No.1995-1195 (Macomb County Circuit Court June 15, 2001).

The matter was then returned to the Michigan Court of Appeals. Petitioner filed a supplemental brief in which she claimed that she was denied her constitutional right to a public trial when the trial court closed the entrapment hearing to the public without holding a hearing. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Salem, No. 205746, 2001 WL 1029650 (Mich.Ct.App. Sept. 7, 2001) ("Salem II".)

Petitioner filed a delayed application for leave to appeal the Michigan Court of Appeals' decision in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Salem, No 120265, 2002 WL 1786326 (Mich. July 29, 2002).

Petitioner then filed the pending petition for a writ of habeas corpus, through counsel, presenting the following claims:

I. Petitioner was denied her right to a public trial when the trial court closed the courtroom to the public while the confidential informant, Joe Issa, testified during her entrapment hearing after remand.

II. The record establishes that Petitioner was entrapped as a matter of law and was therefore deprived of liberty without due process of law.

III. Ineffective assistance of counsel.

IV. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review on federal courts reviewing applications for a writ of habeas corpus:

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 proceedings.

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). Additionally, this court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1);¹ see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ("We give complete deference to state court findings unless they are clearly erroneous").

The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state " court applies a rule that contradicts the governing law set forth in our cases....

A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.

Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409, 120 S.Ct. 1495. The Court defined "unreasonable application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable ...

[A]n unreasonable application of federal law is different from an incorrect application of federal law... Under § 2254(d)(1)'s "unreasonable application" clause, then, 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. Rather, that application must also be unreasonable.

Id. at 410-11, 120 S.Ct. 1495.

V. Analysis

A.Right to a Public Trial

Petitioner alleges that her Sixth Amendment right to a public trial was violated when the trial court closed the entrapment hearing to the public. The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. The right is applicable to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391...