Thompson v. Elo, Civil Action No. 95-CV-71226-DT.

• Decision Date: 12 February 1996
• Docket Number: Civil Action No. 95-CV-71226-DT.
• Citation: 919 F. Supp. 1077
• Parties: John James THOMPSON, Petitioner, v. Frank ELO, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

919 F. Supp. 1077

John James THOMPSON, Petitioner, v. Frank ELO, Respondent.

Civil Action No. 95-CV-71226-DT.

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

February 12, 1996.

John James Thompson, pro se.

MEMORANDUM OPINION AND ORDER

O'MEARA, District Judge.

I. Introduction

Before the Court is petitioner John James Thompson's pro se habeas corpus petition under 28 U.S.C. § 2254. Also before the Court is petitioner's motion for appointment of counsel or for an extension of time to answer the responsive pleading. Petitioner is a state inmate at Adrian Temporary Correctional Facility in Adrian, Michigan where respondent Frank Elo is the warden.

On March 13, 1986, a jury in Kalamazoo County Circuit Court found petitioner guilty of criminal sexual conduct in the first degree. On April 28, 1986, the trial court sentenced petitioner to imprisonment for fifteen (15) to thirty (30) years.

In his appeal of right, petitioner challenged his sentence on the grounds that the trial court had abused its discretion and had failed to state sufficient reasons for departing from the sentencing guidelines. On August 26, 1988, the Michigan Court of Appeals affirmed petitioner's conviction and sentence in a per curiam opinion, and on February 28, 1989, the Michigan Supreme Court denied petitioner's letter request for review.

On February 22, 1994, petitioner filed a motion for relief from judgment in the trial court. In his motion, he presented the issues currently before this Court. On March 4, 1994, the trial court denied petitioner's motion for relief from judgment after noting that petitioner could have raised his claims in his appeal of right. Both the Michigan Court of Appeals and the Michigan Supreme Court subsequently denied leave to appeal in standard orders. See People v. Thompson, Michigan Court of Appeals file number 173570 (July 8, 1994) and Michigan Supreme Court file number 100327 (January 31, 1995).

On March 31, 1995, petitioner filed the pending habeas corpus petition. His grounds for relief are:

I. DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS AND SIXTH AMENDMENT RIGHT TO A JURY TRIAL WERE VIOLATED WHEN THE TRIAL COURT LOWERED THE REASONABLE

DOUBT STANDARD TO A `MORAL CERTAINTY' AND `FAIR DOUBT BASED ON REASON AND COMMON SENSE'

II. DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS AND SIXTH AMENDMENT RIGHT TO A JURY TRIAL WERE VIOLATED WHEN THE TRIAL JUDGE RESTRICTED THE JURORS TO FIND A REASONABLE DOUBT FROM `ALL THE EVIDENCE'

III. REVERSIBLE ERROR OCCURRED WHEN THE DEFENDANT WAS NOT PRESENT AT AN IN-CHAMBERS HEARING BETWEEN ONE OF THE JURORS, TRIAL JUDGE, DEFENSE COUNSEL AND THE ASSISTANT PROSECUTOR; DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AND DEFENSE COUNSEL CANNOT WAIVE DEFENDANT'S GUARANTEED RIGHT TO BE PRESENT ALSO DEFENDANT WILL SHOW THE PREJUDICE

IV. DEFENDANT WAS DENIED HIS CONSTITUTIONAL ASSISTANCE OF TRIAL AND APPELLATE COUNSELS (sic)

V. THIS COURT SHOULD USE THE `SEE THROUGH' ANALYSIS OF YLST v. NUMMEMAKER (sic), 501 U.S. 797, 111 S.Ct. 2590 115 L.Ed.2d 706 (1991) TO SEE IF THE LAST `REASONED' STATE COURT DECISION RELIED ON A STATE PROCEDURAL RULE WHICH THEY DID NOT

Petitioner has exhausted state court remedies for these claims. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275-278, 92 S.Ct. 509, 512-513, 30 L.Ed.2d 438 (1971).

Respondent has answered the petition through counsel and argues that the Court should deny the petition. Specifically, respondent argues that:

I. BECAUSE THE MICHIGAN COURTS HELD THAT PETITIONER'S CLAIMS ARE BARRED BY HIS FAILURE TO RAISE THEM IN HIS APPEAL OF RIGHT, HABEAS REVIEW IS SIMILARLY FORECLOSED.

II. THE TRIAL COURT'S INSTRUCTIONS DID NOT RENDER PETITIONER'S TRIAL UNCONSTITUTIONAL.

III. NO CONSTITUTIONAL VIOLATION OCCURRED WHEN PETITIONER WAS ABSENT AT AN IN-CHAMBERS CONFERENCE WITH A JUROR.

II. Discussion

A. The Last Reasoned Decision

The doctrine of procedural default provides that:

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, 2565, 115 L.Ed.2d 640 (1991). When determining whether a state court's judgment rested on an independent and adequate state procedural rule, the Court must "look through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991); Couch v. Jabe, 951 F.2d 94 (6th Cir.1991).

The last state court to render a reasoned decision on petitioner's habeas claims was the trial court when it ruled on petitioner's motion for relief from judgment. The trial court's entire opinion on petitioner's motion for relief from judgment reads as follows:

On February (sic) 22, 1994, the Defendant filed a Motion for Relief from Judgment pursuant to MCR 6.500 et. seq. It plainly appears from the face of the materials that the Defendant is not entitled to relief and therefore the MOTION IS DENIED WITHOUT FURTHER PROCEEDINGS.

The Defendant has failed to establish his entitlement to the relief required because the grounds for relief could have been raised on appeal from the conviction at sentence, and the Defendant has not demonstrated good cause for failure to do so nor actual prejudice from the alleged irregularities in that he has not shown that he would have had a reasonably likely chance of acquittal or that any alleged irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand.

See Exhibit A, Answer in Opposition to Petition for Writ of Habeas Corpus.

Despite petitioner's assertion to the contrary, the trial court did not consider the merits of petitioner's federal claims. Instead, the trial court denied relief solely because of petitioner's state procedural error. The language of the trial court's order and the reference to MCR 6.500, et seq., demonstrate that the trial court relied on MCR 6.508(D)(3), which reads in pertinent part as follows:

(D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion

....

(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal ..., and

(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, `actual prejudice' means that,

(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal;

....

(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case....

MCR 6.508(D)(3)(a) and (b) (effective October 1, 1989).

Although petitioner subsequently presented his claims to the Michigan Court of Appeals and to the Michigan Supreme Court, neither court discussed the merits of his claims in their orders. Their discretionary denials of leave to appeal were not even judgments; nor were they sufficient to lift the procedural bar imposed by the trial court. See Ylst v. Nunnemaker, 501 U.S. at 803, 805-806, 111 S.Ct. at 2594, 2595-2596. Having "looked through" the state appellate court orders to the trial court's order of March 4, 1994, this Court concludes that the trial court was the last state court to render a reasoned decision, and the trial court clearly and expressly denied relief based on petitioner's state procedural default.

B. Independent and Adequate State Law Ground

This case requires the Court to determine whether the trial court relied on a state law ground that was "independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. at 729, 111 S.Ct. at 2553. The trial court relied solely on a state procedural rule to deny relief; therefore, its decision was independent of petitioner's federal claims. The state law ground was also adequate to support the trial court's judgment. Under MCR 6.508(D)(3), a court may not grant relief from judgment if the allegations could have been raised on appeal unless the defendant demonstrates good cause and actual prejudice or that he is innocent of the crime.

Petitioner, nevertheless, notes that MCR 6.508 did not become effective until October 1, 1989, after he pursued his appeal of right. Petitioner contends that, before October 1, 1989, there was no absolute bar to raising constitutional claims following an appeal of right. Petitioner concludes that he was not required to raise every conceivable claim on direct appeal and that the trial court erred in relying on MCR 6.508(D).

The Court agrees that, "before October 1, 1989, the procedure for collateral review of criminal convictions in Michigan did not make any provision for finality of judgments. As a consequence, defendants could, and did, repeatedly seek relief without limitation." People v. Reed, 449 Mich. 375, 388, 535 N.W.2d 496 (1995); but see People v. Wolfe, 156 Mich.App. 225, 228, 401 N.W.2d 283 (1986) (noting that, "absent a claim of appellate ineffective assistance of counsel, a defendant may not raise nonjurisdictional trial-related matters on a second appeal."), leave to appeal denied, 428 Mich. 899 (1987). Petitioner, however, essentially wants the Court to conclude that the state court incorrectly applied Rule 6.508(D) to his case. States, nevertheless, may establish their...