Wilson v. Grant
| Decision Date | 22 February 1995 |
| Docket Number | No. 93-CV-73171-DT.,93-CV-73171-DT. |
| Citation | 877 F. Supp. 380 |
| Parties | Kenneth WILSON, Petitioner, v. William T. GRANT, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Arthur J. Tarnow, Detroit, MI, for Kenneth Wilson.
Peter L. Trezise, Mich. Dept. of Atty. Gen., Habeas Corpus Div., Lansing, MI, for Gene Borgert.
Arthur E. D'Hondt, Peter L. Trezise, Mich. Dept. of Atty. Gen., Habeas Corpus Div., Lansing, MI, for William T. Grant.
Petitioner filed the instant petition for Writ of Habeas Corpus. Respondent filed an answer, to which Petitioner responded. This matter is currently before the Court on Magistrate Judge Komives' Report and Recommendation of May 10, 1994, in which the Magistrate Judge recommends that the petition for writ of habeas corpus be denied.
After a thorough review of the court file, the respective parties' motions, the Report and Recommendation, and the Petitioner's objections to the report, this Court will adopt the Report and Recommendation and enter it as the findings and conclusions of this Court, with the following clarifications.
Petitioner contends that this Court dismissed his prior petition for writ of habeas corpus because Petitioner had failed to exhaust his state remedies. This Court's October 24, 1989, Memorandum Opinion and Order did contain language to that effect. However, in the October 24, 1989 Opinion, the Court was analyzing whether Petitioner had demonstrated cause for his procedural default at the state level, the reason that the Court denied Petitioner's writ on June 21, 1989. See June 21, 1989 Memorandum Opinion and Order. Thus, although Petitioner had, in fact, failed to exhaust his state remedies, the reason he had failed to do so was that he had committed procedural defaults. Accordingly, Magistrate Judge Komives correctly analyzed and recommended denial of Petitioner's present petition for writ of habeas corpus.
Therefore, IT IS HEREBY ORDERED that Kenneth Wilson's petition for writ of habeas corpus is DENIED. Judgment shall be entered accordingly.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
The Court should dismiss the petition for a writ of habeas corpus under Rule 9(b), Rules Governing Section 2254 Proceedings. In the alternative, the Court should deny the petition on the ground of procedural default.
A.
1. On July 27, 1993, petitioner Kenneth Wilson filed a petition for writ of habeas corpus, seeking federal review of four issues allegedly invalidating his state court jury conviction on three counts of assault with intent to murder and one count of felony firearm.
2. On March 28, 1994, the Attorney General filed a forty-eight page answer in opposition to the petition, asserting in part that the petition should be dismissed because it was a second habeas application constituting an abuse of the writ and also because of procedural default.
3. On April 13, 1994, petitioner, who is represented by counsel, filed a response to the answer.
B.
1. The Attorney General's first argument, that the petition should be dismissed as an abuse of the writ because Wilson filed a prior petition in 1989 (Case 89-CV-71338-DT), is founded upon the opinion and order of Judge Zatkoff which dismissed this prior petition. Judge Zatkoff concluded that Wilson had not established cause for his procedural default in failing to obtain review by the Michigan Supreme Court of the denial of a delayed motion for new trial. This delayed motion for new trial had raised two grounds; first, a claim that petitioner had not validly waived his right to a 12-person jury when one of twelve deliberating jurors was excused, and, second, that he had received ineffective assistance from both his trial and appellate counsel. Petitioner sought to raise these and other grounds for relief in his subsequent delayed application for leave to appeal which he submitted to the Michigan Court of Appeals on March 18, 1988 seeking review of the trial court's denial of his delayed motion for new trial. The Michigan Court of Appeals denied his application for leave to appeal in a form order entered on September 28, 1988. Petitioner did not obtain review by the Michigan Supreme Court and argued in his federal habeas petition that he was prevented from doing so in a timely fashion by his transfer from one prison to another.
His prior federal habeas petition raised the two grounds put forward in his delayed motion for new trial and also put forward other grounds: (1) Wilson asserted that his trial counsel was ineffective by failing to elicit testimony from him on the issue of intent (that he had no intent to kill), which, if accepted by the jury, would have led to conviction of a lesser-included offense, thus depriving him of a substantial defense. (2) Wilson asserted that he was denied due process when the trial judge gave an instruction on the defense of intoxication which shifted the burden of proof. (3) Wilson argued that the failure of the state courts to apply a 1987 decision of the Michigan Court of Appeals regarding a burden-shifting intoxication instruction denied him due process and equal protection. (4) Wilson argued that his trial counsel was also ineffective on appeal by raising a patently frivolous issue and failing to advance any of several available meritorious issues of error.
2. Wilson's current habeas petition puts forward four grounds for relief: first, that he was denied effective assistance of counsel during his trial by the failure of his attorney to (a) move to disqualify the judges of the Recorder's Court, (b) inform him that he would have been entitled to a mistrial if he did not agree to waiving the continued participation of one of the twelve jurors, and (c) object to the prosecutor's repeated reference to his silence at trial. Trial counsel was also ineffective when she elicited testimony about an alleged unrelated fight at the police station involving Wilson after he was arrested.
The second habeas ground alleges prosecutorial misconduct in two particulars: (a) comment on silence, and (b) appealing to the civic duty of jurors to convict. The third habeas ground alleges judicial misconduct or error in (a) threatening defense counsel with contempt, (b) coercing Wilson's waiver of the continued participation of the twelfth juror, and (c) refusing to allow cross-examination of a witness as to the possibility of the gun going off accidentally.
The fourth habeas ground is an assertion that appellate counsel was ineffective for failing to raise the foregoing issues on the appeal as of right.
C.
1. Rule 9(b) of the Rules Governing Section 2254 Proceedings provides as follows:
(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
The Advisory Committee Note makes it clear that this rule is based largely on language in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The Sanders Court noted that "nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation...." While the Sanders Court also stated that the action of the prisoner must be a deliberate withholding of a ground for relief in the first habeas petition, and the Advisory Committee would require a finding by the judge considering the second habeas petition that the failure to assert the new ground in the prior petition was "inexcusable," the Supreme Court has now refined this basis for considering whether the second petition constitutes an abuse of the writ. In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court resolved a conflict in the circuits by reversing a Sixth Circuit holding which allowed federal courts to consider the exhausted claims in a "mixed petition" which put forward both exhausted and unexhausted grounds for relief. The Court noted, in a portion of the opinion expressing the view of six justices, that "strict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition." 455 U.S. at 520, 102 S.Ct. at 1204. The Court continued:
To the extent that the exhaustion requirement reduces piecemeal litigation, both the courts and the prisoners should benefit, for as a result the district court will be more likely to review all of the prisoner's claims in a single proceeding, thus providing for a more focused and thorough review.
455 U.S. at 520, 102 S.Ct. at 1204.
The next portion of the Court's opinion was joined in by only four of the six justices in the majority. This portion expressed the view of the four that a prisoner who chose to amend a mixed petition and ask for immediate federal adjudication only of exhausted claims "would risk forfeiting consideration of his unexhausted claims in federal court." This was so because of Rule 9(b). A prisoner who unsuccessfully pursued his exhausted claims after amending his first petition, then later exhausted his remaining claims in state court "risks dismissal of subsequent federal petitions." 455 U.S. at 521, 102 S.Ct. at 1205.
2. Finally, in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), the Supreme Court, after noting that a claim need not have been deliberately abandoned in an earlier habeas proceeding, but would constitute an abuse of the writ if not included in the first petition through inexcusable neglect, held that henceforth abuse-of-the-writ accusations should be judged by the same standard used to...
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