CLARENCE FISHER v. SHERMAN CAMPBELL (2017)

ORDER

Clarence Fisher, a pro se Michigan prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 petition. This court construes his notice of appeal as an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(2). Fisher also moves to proceed in forma pauperis.

In 2013, a Michigan jury convicted Fisher of assault with intent to commit murder, armed robbery, and possession of a firearm during the commission of a felony. The trial court sentenced him to concurrent prison terms of thirteen to thirty years for the assault conviction and nine to thirty years for the robbery conviction, to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. Fisher appealed, and the Michigan Court of Appeals affirmed. People v. Fisher, No. 316111, 2014 WL 3747627, at *1 (Mich. Ct. App. July 29, 2014), leave to appeal denied, 858 N.W.3d 452 (Mich. 2015) (Mem.).

In 2016, Fisher filed this habeas corpus petition asserting that the prosecution committed misconduct at trial in its opening and closing statements and that his counsel was ineffective for failing to object. The district court determined that these claims lacked merit, denied the petition with prejudice, and declined to issue a COA.

A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When the denial of relief is based on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “[A] COA does not require a showing that the appeal will succeed.” Miller-El, 537 U.S. at 337. It is sufficient for a petitioner to demonstrate that “the issues presented are adequate to deserve encouragement to proceed further.” Savoca v. United States, 567 F.3d 802, 803 (6th Cir. 2009). Under § 2253(c), this court does not fully consider “the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336. We instead conduct an overview of the claims and “a general assessment of their merits.” Id.

Fisher raises two arguments in his habeas petition. He first argues that the prosecutor impermissibly vouched for the State's witnesses in her opening and closing statements. At opening, the prosecutor stated:

Ladies and gentlemen, this case is about retaliation and revenge. The defendant, three days, three days after a physical altercation with [the victim,] Mr. French, came, sought out Mr. French, and tried to kill him. He was not successful. This case is not about who did it. As you'll hear, Mr. French knows him. He knows him from the neighborhood. He was within arm's reach of the defendant on that early morning. There's no question about whose face it was.

The only question you have to ask, is do you believe Mr. French's story? And is he credible? Do you believe him? And I submit to you that you will believe him. And he had no reason to lie.

(Emphasis added). At closing, the prosecutor said “Mr. French is not a liar,” and that the investigation had been “great police work.” Fisher's petition did not specify what he believed was improper about these statements, but the district court correctly concluded that he could only have been contesting the prosecutor's statements as improper vouching.

To be cognizable on habeas review, the alleged prosecutorial misconduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Improper vouching for the credibility of witnesses is one species of prosecutorial misconduct. “Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the office of the United States Attorney behind that witness,” or implies “that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.” United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999); see also Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2006).

The question is thus whether the prosecutor improperly vouched for Mr. French or the police investigators by indicating her personal belief in their credibility. In her opening, the prosecutor stated, “I submit that you will believe [Mr. French],” and “[Mr. French] has no reason to lie.” Both statements came immediately after the prosecutor outlined French's expected testimony. Mr. French was expected to testify that he knew Fisher, that he had a fight with Fisher three days prior to the shooting, and that Fisher was within arm's reach of French during the shooting in question. It well established that a prosecutor can claim a witness has no reason to lie if that assertion is better understood as a statement of what the prosecutor expects the evidence to show than a statement of the prosecutor's personal belief. See United States v. Jackson, 473 F. 3d 660, 672 (6th Cir. 2007); United States v. Israel, 133 F. App'x 159, 165 (6th Cir. 2005); United States v. Parker, 49 F. App'x 558, 563 (6th Cir. 2002); United States v. McCaskill, 62 F. App'x 71, 76 (6th Cir. 2003). In context, the prosecutor's statements here are best read as a colloquial preview of what she expected the evidence to show—not as an intimation of her personal beliefs. She did not say “I believe that Mr. French is credible,” but rather “you [the jury] will believe” that Mr. French is credible. And just moments before, she had told the jury: “The only question you have to ask is ․ do you believe him?” These are clear indications that the prosecutor's opening was designed to preview the evidence and inform the jurors about the task ahead. There is little risk that the jurors misinterpreted the prosecutor's statements as indicating her personal belief in French's credibility.

In her rebuttal statement at closing, the prosecutor stated that “Mr. French is not a liar,” and that the investigation had been “great police work.” Those comments were framed as a response to the defense's intimations that Mr. French had fabricated his story and that police had failed to find the real shooter because—immediately after the shooting—they were tending to the victim. Again, context is crucial. The prosecutor's statements were offered in direct response to arguments the defense raised in its closing. A prosecutor “necessarily has ‘wide latitude’ during closing argument to respond to the defense's strategies, evidence and arguments.” Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)). “Prosecutors can argue the record, highlight any inconsistencies or inadequacies of the defense, and forcefully assert reasonable inferences from the evidence.” Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008). Here Mr. French offered live testimony, and the jurors were presented with evidence about the investigators' response to the shooting. Thus, in arguing that “Mr. French is not a liar” and noting the “great police work,” the prosecutor's rebuttal did not ask the jurors to rely on her say-so, but instead to believe the State's evidence and draw reasonable conclusions from it. Consequently, the prosecutor's closing comments did not constitute impermissible vouching.

Fisher's next argument is that his trial counsel was ineffective for failing to object to the prosecution's impermissible vouching. To establish ineffective assistance of counsel, a petitioner must show (1) that his counsel's performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the prosecution's statements were not improper, Fisher cannot demonstrate prejudice from his counsel's failure to object to them. See Seymour v. Walker, 224 F.3d 542, 556 (6th Cir. 2000).

Accordingly, this court DENIES a COA and DENIES as moot the motion to proceed in forma pauperis.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk