MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART AMENDED PETITION FOR WRIT OF HABEAS CORPUS
AVERN COHN, UNITED STATES DISTRICT JUDGE.
This is a habeas case under 28 U.S.C. § 2254. Petitioner Joseph Hendrix challenges his state court convictions for felony murder, carjacking, and unlawfully driving away an automobile. He is serving a life sentence.
The amended petition (Doc. 9), filed through counsel, raises a number of claims. Two claims merit habeas relief. Both claims center on whether it was error to admit statements made by Petitioner after he invoked his right to counsel. As will be explained, despite Petitioner's invocation of the right to counsel, he was later questioned by police during which he made statements which were used against him extensively at trial. The use of Petitioner's statements, which went unnoticed by Petitioner's trial counsel and ignored by the Michigan courts, violated Petitioner's Fifth Amendment rights under
A. Petitioner's Trial
1. General Details
The charges against Petitioner arose from the death of sixty-five year old Evangeline Doen. The evidence presented at trial established that in the evening of September 5, 2006, Doen was seated in the front passenger seat of her daughter's minivan which was parked at the Vineyards mall in Shelby Township. A man climbed into the driver's seat and, while driving away, shoved Doen out of the door. Doen's head hit the pavement, causing her injuries. She died ten days later.
Petitioner was arrested about six hours after the minivan was stolen. He was found sitting alone in the minivan at a gas station located in an area of Detroit where crack cocaine is frequently trafficked.
The prosecutor presented evidence that Petitioner previously stole three other vehicles within a mile of his house and under similar circumstances — where the doors were unlocked and the keys were inside. Two of the vehicles were recovered within a half a mile of where Petitioner was arrested in the minivan.
A police officer who had experience working undercover in the drug enforcement unit testified that it is common for drug addicts to steal cars from areas close to where they live and then trade them for drugs.
However, several police officers testified that it is also possible for addicts to exchange or drive away abandoned vehicles after they have been stolen from their owners. This possibility formed Petitioner's defense. Petitioner argued that he could have obtained the minivan some time after it was stolen, and therefore the prosecutor could not prove beyond a reasonable that Petitioner in fact stole the minivan.
2. Petitioner's Statements to Police and Use of the Statements at Trial
Shelby Township Sergeant Brad Ferguson testified that he and another officer transported Petitioner to Macomb County from Detroit after his arrest on September 6. During the trip, Petitioner was read his
A few hours later, in the early morning hours of September 6, Shelby Township Detective Terrence Hogan was assigned to interview Petitioner when he arrived at the Macomb County Jail. Hogan began by advising Petitioner of his
At trial, there was no testimony that Petitioner had invoked his right to counsel on that date. The only reference to September 6 in Hogan's testimony appears as follows:
Doc. 13-5 at p. 90-91.
There was no testimony as to whether Petitioner was given his rights on September 6, much less any testimony that Petitioner invoked his right to counsel on September 6.
Instead, Hogan testified in detail about a interview he had with Petitioner two days later, on September 8, 2006. Doc. 13-5, at 88. On this date, Hogan approached Petitioner. Hogan advised Petitioner of his
Hogan also explained that in his view it was significant that Petitioner refused to reveal his whereabouts at the time of the car theft in light of being aware of Doen's condition. Hogan's testimony went as follows:
Hogan also testified about the prior car thefts involving unlocked doors and keys left in the vehicles during the period preceding the Doen incident, and he said that there were no such similar crimes occurring since Petitioner was in custody. Hogan then opined that Petitioner stole the Doen vehicle from the victim because the same person committed all four of the
As will be explained below, the prosecutor relied heavily on the September 8 interview in closing argument to convince the jury of Petitioner's guilt. The jury found Petitioner guilty as charged.
B. Petitioner's Direct Appeal
Petitioner filed a direct appeal in the Michigan Court of Appeals. Retained appellate counsel — the same attorney representing Petitioner in the present case — filed a motion to remand. The motion sought to expand the record to support Petitioner's claim that his
Petitioner supported the motion to remand with the police report authored by Hogan indicating that he attempted to question Petitioner about the offense when he first arrived from Detroit on September 6, 2006 and that Petitioner invoked his right to counsel.
Petitioner then filed his brief on appeal raising the following claims:
Petitioner attached the police reports and advice of rights forms used to support his motion to remand to his appellate brief. Petitioner sought reversal of his conviction and alternatively asked for a remand to expand the record in support of his first and third claims.
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion.
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court remanded to the Michigan Court of Appeals to address Petitioner's sufficiency of the evidence claim.
On remand, the Michigan Court of Appeals rejected the sufficiency of the evidence claim and again affirmed Petitioner's convictions.
C. Petitioner's Collateral and Habeas Review
Petitioner then filed this petition along with a motion to stay proceedings on the petition so he could return to the state courts and file a motion for relief from judgment. Petitioner asserted that contrary to the evidence presented at trial, similar car thefts continued to occur after Petitioner was in custody. (Doc. 2). The Court granted the motion. (Doc. 4).
Petitioner then returned to the state court and filed a motion for relief from judgment in the trial court, raising the following claims:
The trial court denied the motion for relief from judgment, finding that none of Petitioner's claims had merit. (Doc. 13-9). Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application "for failure to establish entitlement to relief under Michigan Court Rule 6.508(D)."
Petitioner then successfully moved to reopen this case, Docs. 8 and 11, and the parties filed supplemental pleadings. (Docs 9, 12, and 16). The amended petition raises seven claim, including the claim that his Fifth Amendment rights were violated by admission of the September 8 statements and that his trial counsel was ineffective for failing to move to suppress them.
The Court ordered oral argument on Petitioner's Fifth Amendment claim. (Doc. 20). This prompted Respondent to file a supplemental brief in which it conceded — after all this time — that Petitioner's Fifth Amendment rights were violated by admission of the September 8 statements but
III. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is bared under this section unless the state court adjudication was "contrary to" or resulted in an "unreasonable application of" clearly established Supreme Court law.
"A state court's decision is `contrary to' ... clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'"
"[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case."
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision."
"Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time — i.e., the record before the state court."
A. Admission of Petitioner's September 8 Statements
Petitioner's first claim challenges the admissibility at trial of his statements to Hogan on September 8. Petitioner argues, and Respondent concedes, that clearly established Supreme Court law prohibited Hogan from interrogating Petitioner after he had exercised his right to counsel on September 6. Petitioner argues that the error was significant because the prosecutor relied heavily upon Petitioner's September 8 statements to establish his guilt. Petitioner's related third claim asserts that his trial counsel was ineffective for failing
1. Petitioner's Fifth Amendment Right
Respondent correctly concedes error with respect to Petitioner's first claim. The Fifth Amendment, which is made applicable to the states by the Fourteenth Amendment, protects an accused from compulsory self-incrimination. In
Petitioner first presented this claim to the state courts in his motion to remand. The motion was supported by the police reports and notice of rights forms that indicate that Petitioner invoked his right to counsel on September 6. The Michigan Court of Appeals denied the motion "for failure to persuade the Court of the necessity of a remand at this time." (Doc. 19-6). Under Circuit law, this decision constitutes an adjudication on the merits of Petitioner's claim in light of the evidence proffered to the court. See
Because Respondent has conceded that the September 8 statements were admitted in violation of Petitioner's Fifth Amendment rights, the precise grounds for the state court's decision are irrelevant. Whether the state court found the claim to be without merit, harmless, or even if it failed to adjudicate the claim on the merits at all, the same harmless error test applies.
On habeas review, a constitutional error is harmless unless the error had a "substantial and injurious effect or influence in determining the jury's verdict."
Rather than placing the burden on Petitioner to show harmfulness in this manner, the Supreme Court directs the court to ask, "Do I, the judge, think that the error substantially influenced the jury's decision?"
Here, after a careful review of the trial record, the Court finds that the admission of Petitioner's September 8 statements had a substantial and injurious effect or influence in determining the jury's verdict. The case against Petitioner rested on three prongs: (1) Petitioner was found in the vehicle six hours after the theft; (2) Petitioner had previously stolen vehicles in the same vicinity under similar circumstances and driven them to the same general location in Detroit and the thefts stopped after this arrest; and (3) confronted with the fact that a person was seriously injured and might die as a result of the theft, Petitioner nevertheless refused to give an innocent explanation for how he came to possess the vehicle. This third prong was a substantial component of the prosecutor's case, and it depended almost entirely on Petitioner's September 8 statements.
Respondent argues that standing alone the first two prongs presented a compelling case against Petitioner, and even without the September 8 statements, the third prong could have been supported with testimony about Petitioner's evasive answers to Sergeant Ferguson during the ride to Shelby Township on September 6. This argument, however, ignores the importance the prosecutor specifically placed on the September 8 statement. Although Ferguson testified that Petitioner was uncooperative when questioned during the ride to Shelby Township, there is no indication in the record that Petitioner was informed at that point that a person was severely injured in connection with the stolen vehicle. Petitioner's knowledge of the victim's dire condition was a necessary predicate for the prosecutor's argument that Petitioner had a strong incentive to give an innocent explanation for how he obtained the vehicle. Indeed, Hogan testified that he informed Petitioner of Doen's condition on September 6 — obviously after Petitioner arrived at Shelby Township and had already been questioned by Ferguson.
The prosecutor placed considerable importance on the September 8 interview in closing argument to argue Petitioner's responses were inconsistent with innocence:
Doc. 13-5, at 141-44, 165-66.
This is powerful and compelling narrative. Yet this argument could not have been made if only the September 6 statements had been admitted. At that point, Petitioner had not yet been informed of the seriousness of the matter — that he was found sitting in a vehicle connected to a homicide. As to the September 6 evasiveness, Petitioner would have at least been able to respond: "I didn't know how much trouble I was in." The force of the prosecutor's argument rested on the fact that Petitioner knew he was potentially facing murder charges if he could not give an innocent explanation for how he obtained the vehicle but yet he refused to do so. This all came from Petitioner's September 8 statements. Petitioner's silence at that time in light of the information given to him by Hogan was, in the words of the prosecutor, like a "thunderbolt from the sky" that said "I did it."
Without the September 8 statements, the evidence against Petitioner is (1) that he was found in the vehicle hours after the robbery and (2) that he had on previous occasions stolen cars from the same area and driven them to the same location in Detroit. Although this is persuasive evidence, there can be no serious debate whether the case against Petitioner was significantly strengthened by admission of the September 8 statements. The prosecutor certainly thought it was paramount, as he devoted a great deal of his closing argument to it.
2. Petitioner's Sixth Amendment Right
Petitioner's third habeas claim asserts that his counsel was ineffective for failing to move to suppress the September 8 statements. Again, under
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two-prong test. First,
On habeas review, "[t]he question `is not whether a federal court believes the state court's determination under the
Despite the double deferential standard, Petitioner's trial counsel provided ineffective assistance of counsel by failing to move to suppress Petitioner's September 8 statements and that it was unreasonable for the Michigan Court of Appeals to find otherwise. First, as to deficient performance, there can be no question that a motion to suppress was meritorious for the reasons discussed above. It appears the prosecutor and police were operating under the mistaken assumption that when a suspect invokes his right to counsel, they may still question him about other crimes. The prosecutor said so in its answer to Petitioner's motion to remand. The prosecutor stated in the same paper that defense counsel had access to the September 6 police report and advice of rights form before trial. See Doc. 13-10, at 60-61 n. 2. Thus counsel had the information necessary to file a meritorious motion to suppress the September 8 statement but failed to do so.
There was no legitimate strategic reason for trial counsel to allow admission of Petitioner's statement. Petitioner did not cooperate with Hogan and would not tell him his whereabouts at the time of the incident, nor would he explain how he obtained the vehicle. The statement did not benefit Petitioner. Indeed, as demonstrated above, it provided valuable ammunition for the prosecution. It is simply not reasonable to conclude that trial counsel made a competent strategic decision to allow admission of the September 8 statements. Put simply, trial counsel's failure to seek suppression of the September 8 statements constitutes deficient performance.
This leads to the prejudice prong. Had trial counsel moved for suppression of Petitioner's statements, there is a reasonable probability that the result of the proceeding would have been different. First, as discussed above, there can be no question that the September 8 statements would have been suppressed had a motion been filed by trial counsel. Indeed, Respondent concedes the statements were taken in violation of Petitioner's constitutional rights.
Furthermore, and for the reasons discussed above, there is a reasonable probability that the result of the proceeding would have been more favorable to Petitioner had the September 8 statements been suppressed. These statements were a
Accordingly, the Court finds that Petitioner has demonstrated entitlement to relief with respect to his third claim.
B. Petitioner's Remaining Claims
Petitioner's remaining claims are briefly addressed. None merit relief.
1. Prosecutor's Comment on Petitioner's Silence
In his second claim, Petitioner contends that the prosecutor erroneously commented upon Petitioner's failure to provide the police with an alibi during questioning by police. It is a violation of the Due Process clause of the Fourteenth Amendment for the prosecution to use a defendant's post-arrest silence to impeach exculpatory testimony given by the defendant at trial.
Here, Petitioner did not remain silent. Rather, he responded to Hogan's questions in an evasive manner. "[A] defendant who voluntarily speaks after receiving
2. Admission of Prior Bad Act Evidence
In his fourth claim, Petitioner says that his trial was rendered fundamentally unfair by admission of evidence of Petitioner prior car thefts. Petitioner asserts that the prior offenses were not similar enough to the Doen theft to justify their admission under Michigan Rule of Evidence 404(b).
A violation of state evidence rule 404(b) is not cognizable on habeas review. "[S]tate-court evidentiary rulings cannot rise to the level of due process violations unless they `offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'"
3. Sufficiency of the Evidence
Petitioner also contends that insufficient evidence was presented at trial to sustain his conviction. Specifically, he says that the evidence offered to identify him as the person who stole the vehicle and pushed Doen from it was insufficient. Important in the analysis of this claim is
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
Here, the Michigan Court of Appeals found that viewed most favorably to the prosecution, the jury could rationally find beyond a reasonable doubt that Petitioner was one who stole the vehicle and pushed Doen out of it. Given the record evidence, which critically includes the September 8 statements, and the considerable leeway state courts are afforded in resolving sufficiency-of-the-evidence questions, the conclusion that sufficient evidence of Petitioner's identification as the perpetrator of the crime was presented at trial was not unreasonable. At a minimum, there could be fairminded disagreement regarding the merits of this claim. Petitioner is therefore not entitled to relief on this ground.
4. Trial Counsel's Failure to Investigate
Petitioner next contends that trial counsel was ineffective for failing to investigate and present evidence that similar car thefts continued to occur in the area even after Petitioner was in custody, contrary to the evidence presented at trial. Petitioner proffers evidence that eleven such automobile thefts occurred in Shelby Township after Petitioner's arrest, and that five of those bare similarities to Petitioner's thefts, such as the keys being left in the vehicle. The trial court denied this claim on the merits in its order denying Petitioner's motion for relief from judgment. The trial court noted that Petitioner had not shown that the other thefts were sufficiently similar to the ones Petitioner was responsible for committing nor had Petitioner proffered evidence that the vehicles in question were abandoned or driven to the same area of Detroit where Petitioner drove the vehicles he stole. This conclusion is not objectively unreasonable. As such, habeas relief is not warranted.
5. Prosecutorial Misconduct
Petitioner asserts that the prosecutor committed misconduct when he elicited evidence that Petitioner remained incarcerated from the time of his arrest when the prosecutor questioned an officer whether any similar car thefts occurred after Petitioner was in custody. He also argues it was improper for the prosecutor
A prosecutor's improper comments will be held to violate a criminal defendant's constitutional rights only if they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"
A fairminded jurist could find that even if any of the statements were improper they did not rise to the level of a due process. Furthermore, the jury was instructed that the lawyers' statements and arguments were not evidence. The instruction by the trial court could convince a fairminded jurist that any prejudice that may have arisen from any improper comments was thereby cured. The state court's similar conclusion is not unreasonable. Accordingly, Petitioner is not entitled to relief on this claim.
For the reasons state above, a writ of habeas corpus is CONDITIONALLY GRANTED with respect to Petitioner's first and third claims. Unless the State takes action within ninety (90) days of the date of this Memorandum and Order to afford Petitioner a new trial, the State of Michigan must release Petitioner from custody unconditionally.
A writ of habeas corpus is DENIED with respect to Petitioner's remaining claims.
The Court knows that habeas relief is foreclosed in all but the most exceptional cases. This case presents one of those rare instances. An undisputed constitutional error occurred at trial. The state appellate courts disregarded the error despite being presented with evidence of a violation. The error had a substantial impact on the outcome of the case. Habeas relief is warranted.
This decision brings little comfort to those affected. Petitioner's constitutional rights were ignored and violated. It is likely he will stand trial again and there is a fair chance he will be convicted again. The closure for the family members of the victim is gone. They will likely have to go through the anguish of another prosecution. Public trust in our criminal justice system has been degraded because the Michigan Court of Appeals disregarded constitutional error. In the end, it is enough to say that constitutional principles have been preserved.