Sparks v. Foltz
| Decision Date | 12 May 1988 |
| Docket Number | No. 87-1685,87-1685 |
| Citation | 848 F.2d 194 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lawrence J. SPARKS, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MERRITT and CORNELIA G. KENNEDY, Circuit Judges and CONTIE, Senior Circuit Judge.
Lawrence J. Sparks appeals from the district court's memorandum opinion and judgment denying his petition for the writ of habeas corpus. For the following reasons, we affirm the district court's judgment.
Petitioner was convicted of first degree murder, Mich.Comp.Laws Sec. 750.316, after a jury trial in Oakland County Circuit Court in 1972. He was sentenced to the mandatory term of life imprisonment. See Id.
The prosecution's theory at trial had been that petitioner drove the victim, Wilhelmina (Mimi) Sims, to I-75 in Troy, Michigan and stabbed her to death. Several people who had been with petitioner and Ms. Sims on the night of the murder testified for the prosecution. Petitioner's theory of defense was that he did not commit the crime. Petitioner testified on his own behalf.
After his conviction, petitioner filed a direct appeal as of right which addressed the questions of whether the examining magistrate erred in finding that the prosecution had shown probable cause to believe that the crime committed was first degree murder and whether the prosecution's case at preliminary examination had been fatally defective for failure to establish venue. The Michigan Court of Appeals affirmed petitioner's conviction. People v. Sparks, 53 Mich.App. 452, 220 N.W.2d 153 (1974). The Michigan Supreme Court denied leave to appeal this decision. People v. Sparks, 393 Mich. 135, 224 N.W.2d 481 (1974).
On July 1, 1985, the Oakland County Circuit Court granted petitioner's application to file a delayed motion for a new trial but denied the motion for a new trial. Subsequently, on October 24, 1985, the Michigan Court of Appeals denied petitioner's motion for peremptory reversal and ordered that petitioner's application for late appeal be denied for lack of merit on the grounds presented. The Michigan Supreme Court denied leave to appeal on March 24, 1986, Justice Archer dissenting.
Petitioner filed the instant habeas corpus petition pursuant to 28 U.S.C. Sec. 2254 on April 16, 1986. The district court denied the petition on June 30, 1987. Thereafter, on July 14, 1987, petitioner filed a request for certificate of probable cause and a notice of appeal to this court. The request for certificate of probable cause was denied by the district court but granted by this court on October 19, 1987.
This court must address the following four questions on appeal: (1) Whether petitioner was denied due process by certain alleged prosecutorial misconduct; (2) Whether petitioner was denied effective assistance of counsel; (3) Whether petitioner was denied due process by the use of an uncounselled misdemeanor conviction to impeach his credibility; and (4) Whether the trial court's instruction on petitioner's credibility denied him due process by setting a different standard which required a preliminary determination of reliability. We will discuss each of these questions in turn after a brief summary of our standard of review.
"A state prisoner is entitled to relief under 28 U.S.C. Sec. 2254 only if he is held 'in custody in violation of the Constitution or laws or treaties of the United States.' " Engle v. Isaac, 456 U.S. 107, 119 (1982). "Errors of application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus actions." Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir.1984), cert. denied, 470 U.S. 1050 (1985). Erroneous evidentiary rulings which result in the denial of fundamental fairness, however, will support habeas relief. Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert. denied, 464 U.S. 951, cert. denied, 464 U.S. 962 (1983). Furthermore, the state court's findings of fact are entitled to a presumption of correctness under section 2254(d). Martin v. Foltz, 773 F.2d 711, 716 (6th Cir.1985), cert. denied, 106 S.Ct. 3336 (1986). "Such findings are binding on federal courts, however, only if fairly supported by the record as a whole." Bennett v. Scroggy, 793 F.2d 772, 775 (6th Cir.1986). With these basic principles in mind, we turn to a discussion of the issues at hand.
Initially, petitioner argues that he was denied due process and a fair trial by the following prosecutorial misconduct: (1) argument to the jury that petitioner's presence at trial had given him the opportunity to fabricate his testimony to make it conform to the testimony of the witnesses he heard; (2) an attempt to portray petitioner as a bad man; (3) argument which shifted the burden of proof to petitioner; (4) argument which interjected the issue of race into the trial; and (5) the introduction of photographs to inflame the passions of the jury. Respondent maintains that petitioner's claim of prosecutorial misconduct should be barred from habeas consideration on grounds of procedural default. We will consider the question of procedural default first.
When a respondent maintains that a habeas claim is precluded by the petitioner's failure to observe a state procedural rule, this court must undertake a complex analysis. 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." Id. Failure to abide by a state's contemporaneous objection rule will bar habeas relief under certain circumstances. McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985). Michigan cases have held that "[a]s a general proposition of law a conviction will not be reversed if by failing to object the defendant has allowed the impact of the prosecutor's remarks to go uncorrected by an instruction." People v. Tarpley, 41 Mich.App. 227, 199 N.W.2d 839, 842 (1972). In the instant case, however, petitioner contemporaneously objected to only one question relevant to the alleged acts of prosecutorial misconduct now before this court. 1
Second, this court must determine whether the state courts actually enforced the state procedural sanction. Maupin, 785 F.2d at 138. C.f. McBee, 763 F.2d at 813 (). The entire order of the Michigan Court of Appeals reads as follows:
IT IS FURTHER ORDERED that the application for late appeal be, and the same is hereby DENIED for lack of merit in the grounds presented.
This order is similar to an order which this court recently indicated was unclear in Cook v. Foltz, 814 F.2d 1109, 1112 (6th Cir.), cert. denied, 108 S.Ct. 119 (1987). If the basis for the state court's decision is unclear, this court must look to the arguments presented to the state court. Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir.1983). This court has applied the following rules, taken from the Second Circuit's opinion in Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849 (1982), to ascertain the basis of the state court's decision:
(1) if the state prosecutor only argued the merits of the petitioner's claim before the state court and failed to raise the procedural default issue the federal court may assume that the state court ruled only on the merits; (2) if the prosecutor relied solely on the procedural default the federal court may assume that that was the only basis for the state court's decision; and (3) if the prosecutor argued in the alternative the federal court may assume that the state court did not rely solely on the merits unless it says so.
In the instant case, the state prosecutor only argued the merits of petitioner's claims that the prosecutor attempted to portray petitioner as a bad man; that the prosecutor's argument shifted the burden of proof to petitioner; that prosecutor's argument interjected the issue of race into the trial; and that the prosecutor introduced photographs to inflame the passions of the jury. Therefore, this court may assume that the state court ruled only on the merits of these claims. With respect to petitioner's claim that the prosecutor's argument to the jury that petitioner's presence at trial had given him the opportunity to fabricate his testimony to make it conform to the testimony of the witnesses he heard, the prosecutor argued procedural default and the merits in the alternative. Therefore, this court may assume that the state court did not rely solely on the merits of this claim.
For these reasons, this court may continue the Maupin analysis with respect to petitioner's claim that the prosecutor's argument to the jury that petitioner's presence at trial had given him the opportunity to fabricate his testimony to make it conform to the testimony of the witnesses he heard. We will consider the merits of petitioner's four other allegations of prosecutorial misconduct without further Maupin analysis.
The third step in the Maupin analysis requires this court to determine whether the state procedural forfeiture is an...
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