UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. Petitioner, Case No BC v. Honorable David M.

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ERIC VIDEAU, Petitioner, Case No BC v. Honorable David M. Lawson ROBERT KAPTURE, Respondent. / OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner Eric Videau, a state inmate currently incarcerated at Saginaw Correctional Facility in Freeland, Michigan, has filed a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C He alleges that he is in custody in violation of his constitutional rights because his narcotics convictions were obtained by use of illegally seized evidence, there was insufficient evidence to support his convictions, and the trial court erroneously concluded that there was no basis in the record for sentencing him below the mandatory-minimum sentence for each conviction. The Court finds that petitioner s Fourth Amendment claim and his sentencing claim are not cognizable on habeas review and that the remaining claims do not warrant habeas relief because the state court s decision reasonably applied federal law. The Court, therefore, will deny the petition. I. The State s theory was that the petitioner was a drug trafficker and that he supplied cocaine to one Rafael Finley. Finley had negotiated with and sold cocaine to an undercover state trooper on December 9 and 10, Finley never introduced the undercover trooper to the petitioner. However, Finley and the petitioner were arrested during a raid on Finley s residence. The two men were found standing near several packets of cocaine, a scale, and packaging materials. The

2 petitioner s defense was that he was in the wrong place at the wrong time, he was not involved in selling cocaine, and at the time of the raid he merely was buying a few lines of cocaine from Finley for personal use. On November 5, 1997, a circuit court jury in Oakland County, Michigan found the petitioner guilty of conspiracy to deliver at least 50 grams but less than 225 grams of cocaine, Mich. Comp. Laws (2)(a)(iii) and Mich. Comp. Laws a; delivery of at least 50 grams but less than 225 grams of cocaine, Mich. Comp. Laws (2)(a)(iii); and (3) possession with intent to deliver at least 50 grams but less than 225 grams of cocaine, Mich. Comp. Laws (2)(a)(iii). The petitioner subsequently pleaded guilty to being a habitual offender, second offense. See Mich. Comp. Laws The trial court sentenced the petitioner to consecutive terms of ten to 30 years in prison on each count. The Michigan Court of Appeals affirmed the petitioner s conviction and sentence in an unpublished, per curiam decision. People v. Videau, No , 2000 WL (Mich. Ct. App. May 2, 2000). On October 30, 2000, the Michigan Supreme Court denied leave to appeal. People v. Videau, 463 Mich. 905, 618 N.W.2d 914 (2000). On November 5, 2001, the petitioner filed his habeas corpus petition alleging that the trial court erred in denying his motion to suppress cash found in his pocket, there was insufficient evidence presented at trial to support his three convictions, and the trial court s finding that there were no factors on record to justify deviating from the mandatory minimum sentence was clearly erroneous. Respondent filed an answer and urges the Court to deny the petition. II. -2-

3 The petitioner s challenge to the state courts rulings on the validity of the search and the propriety of the sentence imposed do not permit the issuance of the writ for two slightly different reasons. Review of the search issue is barred by the rule in Stone v. Powell, 428 U.S. 465 (1976), and the sentencing issue does not raise an issue of federal law. The trial court denied the petitioner s motion to suppress evidence of $2,700, which was found in the petitioner s pocket during his arrest. A significant portion of the currency was prerecorded funds that the undercover state trooper had used to purchase cocaine from Rafael Finley on previous occasions. The petitioner contends that his arrest was illegal because the police had neither an arrest warrant nor probable cause to believe that he had committed a felony. The petitioner maintains that because his arrest was illegal, the police had no basis for conducting a search incident to the arrest. The petitioner s claim is predicated on the Fourth Amendment to the United States Constitution, which safeguards the right of the people to be secure against unreasonable searches and seizures. U.S. Const. amend. IV. However, federal courts will not address a Fourth Amendment claim upon habeas review if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state s corrective processes. Stone, 428 U.S. at The Court s determination of whether the petitioner had a full and fair opportunity to litigate his Fourth Amendment claim requires a two-part inquiry. First, the court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism. -3-

4 Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982)). The trial court held a hearing on the petitioner s Fourth Amendment claim and determined at the conclusion of the hearing that the petitioner s arrest was legal and that the officer s search of the petitioner was incident to the arrest. Accordingly, the trial court denied the petitioner s motion to suppress evidence of the marked money in his pocket. The Michigan Court of Appeals adjudicated the petitioner s Fourth Amendment claim on the merits and concluded that the trial court did not err in finding that the officers had probable cause to arrest the petitioner and conduct a search incident to the arrest. The petitioner presented his Fourth Amendment claim to the Michigan Supreme Court, which denied leave to appeal because it was not persuaded that the questions presented should be reviewed. The petitioner was given a full and fair opportunity to present his Fourth Amendment claim in state court. The petitioner does not allege that the state courts obstructed his claim in any way; rather, he simply disagrees with the result of their analysis. Therefore, his first claim is not cognizable on habeas review. Stone, 428 U.S. at The petitioner s attack on his sentence consists of an argument that the trial court should have deviated from the mandatory minimum sentences for his crimes because, in his opinion, there were substantial and compelling reasons on record for doing so. This claim is based solely on state sentencing law, and this Court may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). The writ of habeas corpus may be granted only if the petitioner is in custody in violation of the Constitution or laws or treaties of the -4-

5 United States. 28 U.S.C. 2254(a). Because the petitioner has not alleged a federal constitutional error, his sentencing claim is not cognizable on habeas review. III. The petitioner also argues that none of the three counts of conviction were supported by constitutionally sufficient evidence. These claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No , 110 Stat (AEDPA). This Act circumscribe[d] the standard of review federal courts must apply when considering applications for a writ of habeas corpus. See Wiggins v. Smith, 123 S. Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner s application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case. As amended by the AEDPA, 28 U.S.C. 2254(d) imposes the following standard of review for habeas cases: 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 proceeding. 28 U.S.C. 2254(d). Therefore, federal courts must accept a state court s adjudication of a petitioner s claims unless the state court s decision was contrary to or involved an unreasonable -5-

6 application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court s application of federal law must have been objectively unreasonable. Wiggins, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. 2254(e)(1) ( In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. ); 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, 529 U.S. at The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the unreasonable application clause of 2254(d)(1) when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner s case. Id. at 409. 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

7 [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 409, ; see also McAdoo v. Elo, 346 F.3d 159, (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002). There is no question that the 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. In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction [is,] whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979). But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at (internal citation and footnote omitted) (emphasis in original). This standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n.16. A. In challenging his conviction for conspiracy to deliver 50, but less than 225 grams of cocaine, the petitioner alleges that there was no evidence that he made an unlawful agreement with Rafael Finley to possess, sell, or deliver cocaine to a third party. The petitioner argues that a -7-

8 conspiracy to sell drugs cannot be inferred from evidence that he met with Finley on December 9 and 10, 1996, or that Finley called him and paged him frequently during that time period because there was no testimony regarding the contents of their conversations. According to the petitioner, the evidence merely showed that he may have had a buyer-seller relationship with Finley without knowledge that Finley intended to sell the cocaine to a third party. The Michigan Court of Appeals did not cite Jackson in its opinion, but it used the same standard set down by the Supreme Court in evaluating the sufficiency of evidence. The court of appeals summarized the law on conspiracy and the evidence against the petitioner as follows: In order to convict a defendant of conspiracy to deliver a controlled substance, the prosecution must prove that (1) the defendant possessed the intent to deliver the statutory amount as charged; (2) his coconspirators possessed the intent to deliver the statutory amount as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory amount as charged to a third person. People v. Mass, 238 Mich. App. 333, 336; 605 N.W.2d 322 (1999). Direct proof of the conspiracy is not essential; instead, proof may be derived from the circumstances, acts, and conduct of the parties. People v. Justice (After Remand), 454 Mich. 334, 347; 562 N.W.2d 652 (1997). Defendant asserts that the evidence was sufficient to establish only the existence of a buyer-seller relationship between Finley and himself. However, the prosecution presented evidence that a reasonable factfinder could conclude indicated the existence of something more than a buyer-seller relationship. There were numerous telephone and pager contacts between Finley and defendant. On December 9, 1996, defendant met with Finley prior to the latter s delivery of three ounces of cocaine to the undercover officer. On December 10, 1996, shortly before Finley was to deliver a large quantity of cocaine to the undercover officer, defendant was observed following Finley from a parking lot to Finley s apartment, entering Finley's apartment, exiting after a short time, returning to his car and opening the trunk, apparently to retrieve something, and then reentering Finley s apartment. When the police entered Finley s apartment, defendant was standing near the cocaine and was apparently participating in its packaging. Given the amount of cocaine involved, a factfinder could reasonably infer that defendant and Finley intended to sell the cocaine. See People v. Catanzarite, 211 Mich. App. 573, 578; 536 N.W.2d 570 (1995). Finally, defendant had in his pocket prerecorded bills that had been used in two separate drug purchases that the undercover officer had previously made from Finley. -8-

9 Videau, 2000 WL , at *2. This summary of the evidence is supported by testimony offered against the petitioner at trial through law enforcement officials. The only defense witness was the petitioner s brother, who testified that the petitioner used drugs but did not sell them. The Michigan Court of Appeals concluded that there was sufficient evidence to support the conviction of conspiracy to deliver the cocaine. Id. at *2. Because this conclusion is supported by the record, it constituted a reasonable application of Jackson. Therefore, the petitioner has no right to habeas relief with respect to the conspiracy conviction. B. The petitioner also alleges that there was insufficient evidence presented at trial to support his conviction for delivery of between 50 and 225 grams of cocaine. According to the petitioner, the prosecution failed to prove that the petitioner delivered the cocaine to Finley in the Tel-Twelve Mall in Southfield, Michigan on December 9, Although surveillance officers testified that the petitioner and Finley met for nine minutes in the petitioner s car in the mall s parking lot, they could not see what transpired in the car. The Michigan Court of Appeals adjudicated the petitioner s claim as follows: Delivery is defined as the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship. M.C.L (1); M.S.A (7105)(1). The prosecution presented evidence that on December 9, 1996, the undercover officer told Finley that he wanted to buy three ounces of cocaine. Finley stated that he did not have the cocaine at that time, but that he would get it. Finley paged defendant immediately after this conversation. Defendant and Finley paged or called each other ten more times between 5:45 p.m. and 7:58 p.m. When the undercover officer spoke with Finley again at approximately 7:00 p.m., Finley stated that he still did not have the cocaine. Before meeting with the undercover officer, defendant and -9-

10 Finley met in the Tel-Twelve Mall parking lot; Finley got into defendant s car and remained there for nine minutes. Finley subsequently delivered 79.7 grams of a mixture containing cocaine to the undercover officer. When defendant was arrested the following day, he was in possession of $1,800 in prerecorded bills that the undercover officer had used to pay Finley for the cocaine. From this evidence, a rational trier of fact could conclude that defendant delivered the cocaine to Finley and aided and abetted the delivery of cocaine to the undercover officer. Videau, 2000 WL , at *2. The record supports the state court s summary of the evidence and the state court s determination that the evidence was sufficient to support the conviction for delivery of between 50 and 225 grams of cocaine. The state court s conclusion was not an unreasonable application of Jackson. Consequently, the petitioner has no right to relief on the basis of his third claim. C. The petitioner also contends that the prosecutor failed to produce sufficient evidence to support his conviction for possession with intent to deliver between 50 and 225 grams of cocaine, arguing that there was no evidence that he possessed the cocaine found in Finley s home on the day of the raid. The petitioner claims that he was merely present in a room with drugs and packaging paraphernalia when the police raided the home and that his mere presence was insufficient to prove joint possession. manner: The Michigan Court of Appeals summarized the relevant law and evidence in the following To support a conviction for possession with intent to deliver more than fifty but less than 225 grams of cocaine, it is necessary for the prosecutor to prove the following elements: (1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing more than fifty but less than 225 grams, (3) that the defendant was not authorized to possess the substance, and (4) that the defendant knowingly possessed the cocaine with the intent to deliver it. See People v. Wolfe, 440 Mich. 508, ; 489 N.W.2d 748 (1992). -10-

11 Defendant argues that insufficient evidence was presented to support a finding that he possessed the cocaine that was seized from Finley s apartment. We disagree. Possession may be actual or constructive; thus, a person need not have actual physical possession of a controlled substance to be guilty of possessing it. Id. at Additionally, possession may be found even when the defendant does not actually own the prohibited substance, and one may possess the substance jointly with others. Id. at 520. Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband. Id. at 521. In the instant case, sufficient evidence was presented to link defendant with the cocaine. On December 10, 1996, defendant paged or called Finley at least nine times before the latter called the undercover officer at 1:00 p.m. and indicated that it would be a half hour before he would be ready to do the deal. Defendant went to Finley s apartment, came back outside and retrieved something from his car, and again went inside the apartment. Finley called the undercover officer and said that he was bagging up the cocaine and that he would call in about ten or fifteen minutes to tell the undercover officer where to meet him. The police then executed the search [warrant] and discovered defendant and Finley standing within arm s reach of a table which held a large amount of cocaine, packaging material, and other paraphernalia; Finley and defendant appeared to be packaging the cocaine for sale. Defendant had on his person $1,900 in prerecorded bills which had been used in two previous buys between Finley and the undercover officer. Viewing this evidence in a light most favorable to the prosecution, a reasonable factfinder could find that defendant was in possession of the cocaine. Videau, Mich. Ct. App. No , at 3-4. Once again, the state court s conclusion is supported by the record and resulted in a decision that was an objectively reasonable application of Jackson. Therefore, the petitioner has no right to relief from his conviction of this count. IV. The decision of the state court of appeals affirming the petitioner s convictions was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Furthermore, that court s findings of fact, presumed correct on habeas review, are amply supported by the trial record. See 28 U.S.C. 2254(d)(2), (e)(1). -11-

12 DENIED. Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #3] is Dated: January 26, 2004 Copies sent to: Eric Videau - # Janet Van Cleve, Esquire /s/ DAVID M. LAWSON United States District Judge -12-