MATTHEW LANE CHRISTIAN v. KENNETH ROMANOWSKI (2017)

ORDER

Matthew Lane Christian, a former Michigan prisoner ¹ represented by counsel, appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Christian now files an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b). Christian also moves for leave to proceed in forma pauperis (IFP) on appeal.

In 2010, a Michigan jury convicted Christian of assault with intent to commit great bodily harm less than murder in violation of Michigan Compiled Laws § 750.84. This conviction arose out of a confrontation between Christian and his former long-time friend, Solomon Azayeddi, which ended with Christian stabbing Solomon in the back several times and causing life-threatening injuries. People v. Christian, No. 304265, 2012 WL 1698377, at *1 (Mich. Ct. App. May 15, 2012) (per curiam). During this altercation, Christian received a blow to the head, causing a laceration over his left eye that required four stitches. Id.

The trial court sentenced Christian as a second felony habitual offender to forty months to fifteen years in prison and ordered him to pay restitution. His conviction and sentence were affirmed on appeal, id. at *3, and the Michigan Supreme Court denied leave to appeal, People v. Christian, 822 N.W.2d 592 (Mich. 2012) (mem.). Christian's motion for relief from judgment was denied and leave to appeal was denied. People v. Christian, No. 319051 (Mich. Ct. App. June 2, 2014). The state supreme court also denied leave to appeal. People v. Christian, 857 N.W.2d 38 (Mich. 2014) (mem.).

In August 2015, Christian filed his § 2254 habeas petition, claiming that he acted in self-defense and the evidence to the contrary was insufficient. Christian also claimed that his trial counsel performed ineffectively by (1) failing to call certain witnesses who would have supported his self-defense claim and impeached Solomon's testimony, (2) failing to introduce medical evidence and to call a medical expert regarding the seriousness of his head injury that allegedly impaired his judgment, (3) failing to present expert medical testimony on Solomon's loss of memory that may have been caused by his loss of blood from the injuries and medication, (4) failing to object to the prosecutor's questioning of a witness, Allen Christian, which suggested the blood found in and around the house came from the knife that Christian used to stab Solomon rather than from Christian's head injury, (5) failing to have a blood swab from the scene analyzed to show that it was Christian's blood, not Solomon's, and (6) failing to object to the jury instructions regarding the law of self-defense in Michigan. Christian also claimed that he was denied effective assistance of counsel at sentencing. Lastly, Christian claimed that appellate counsel performed ineffectively by failing to raise all of the above issues on appeal.

The district court determined that the sufficiency-of-the-evidence claim was non-cognizable in this habeas matter and, in any event, was meritless. Christian v. Romanowski, No. 2:15-cv-12846, 2017 WL 588458, at *4–6 (E.D. Mich. Feb. 14, 2017). The district court rejected all of Christian's ineffective-assistance claims as meritless and determined that his ineffective assistance claims regarding restitution and sentencing were rendered moot when he was released from prison. Id. at *6–13. In his COA application, Christian recounts all of the above arguments except the claims regarding ineffective assistance of counsel at sentencing. Christian has waived those claims not included in the application. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).

A COA may issue when an “applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Where the state courts adjudicated the petitioner's claims on the merits, the relevant question is whether the district court's application of 28 U.S.C. § 2254(d) to those claims is debatable by jurists of reason. See Miller-El, 537 U.S. at 336. Under § 2254(d), habeas corpus relief may be granted on claims that were adjudicated in state court only if the state-court decision was contrary to, or involved an unreasonable application of, clearly established federal law, or the state-court decision “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The Trial Evidence

The state court of appeals summarized the relevant facts as follows, which this court presumes are correct. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

This case arises out of a stabbing that took place in Delta Township on March 9, 2010. Christian and the victim had known each other for approximately ten years. The victim accused Christian of stealing prescription medication from him approximately six weeks before the stabbing. On the night of the incident, Christian was at home with his parents. The victim spoke with Christian's mother [on the phone] and advised that Christian had been making inappropriate telephone calls to him. The victim was intoxicated. Later that evening, the victim arrived at Christian's home. Christian's mother asked the victim to leave and threatened to call the police. The victim testified that he then attempted to leave, but was attacked by Christian. Christian testified that the victim did not attempt to leave, but struck him with a hard object, causing a laceration over Christian's left eye. Christian stabbed the victim several times in the back, causing life-threatening injuries. Eaton County Sheriff's deputies arrived at the scene and interviewed the witnesses and Christian. The deputies observed a small cut over Christian's left eye. The victim was hospitalized for over a month, was placed on a ventilator, and received multiple surgical procedures.

Christian, 2012 WL 1698377, at *1. The evidence was conflicting regarding whether Solomon attempted to leave the premises after Christian's mother threatened to call the police, how Christian incurred the laceration above his eye, and whether Christian charged at Solomon at “full speed” to initiate the altercation. See id. at *2.

I. Self-Defense Claim

On direct appeal, Christian argued that the evidence at trial was insufficient to support his conviction because other evidence established that he acted in self-defense and in the defense of another, Christian, 2012 WL 1698377, at *12, which are affirmative defenses under Michigan law, see Mich. Comp. Laws §§ 780.951(1), 780.961, 780.972(1)(a); see also People v. Singh, No. 312421, 2013 WL 6124224, at *3 (Mich. Ct. App. Nov. 21, 2013). Christian contended that the evidence was insufficient to support the prosecutor's burden to disprove self-defense and defense of another in this case.

The state appellate court outlined the elements of assault with intent to do great bodily harm less than murder under Michigan law and concluded that “a rational fact-finder could have found that the prosecution disproved that Christian acted in self-defense or in defense of others beyond a reasonable doubt.” Christian, 2012 WL 1698377, at *1–2. The district court deferred to the findings of fact by the jury and the Michigan courts, and concluded that the Michigan appellate court did not unreasonably determine that the prosecution had met its burden of disproving Christian's claim of self-defense under the state's laws.

Reasonable jurists could not dispute the district court's conclusion regarding this sufficiency-of-the-evidence claim because, as the court explained, “[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required ․” See Smith v. United States, 568 U.S. 106, 110 (2013) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977)). “[T]he due process ‘sufficient evidence’ guarantee does not implicate affirmative defenses, because proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime.” Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999), abrogated on other grounds, Wogenstahl v. Mitchell, 668 F.3d 307 (6th Cir. 2012). Because self-defense is an affirmative defense under Michigan law, any failure by the prosecutor in this case to disprove that Christian acted in self-defense or in the defense of another does not implicate a constitutional concern. See id. Therefore, reasonable jurists would not debate the district court's determination that habeas corpus relief is not warranted on this ground.

II. Ineffective Assistance of Trial Counsel

Ineffective-assistance claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a defendant to show that counsel's performance was deficient and that the deficient performance prejudiced the defense such that the defendant was denied a fair trial. Id. at 687. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. The test for prejudice is whether “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In habeas review, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

Christian argues that his trial counsel was ineffective for failing to call three additional witnesses at trial, Calvin McDuffie, Lacey Ruiz, and Capri Vaughn, friends of Christian and Solomon, to support his claim of self-defense. As the district court noted, Christian failed to offer, either to the state courts or to the district court, any affidavits or other evidence showing what Vaughn's testimony may have been beyond his own bare assertions. Christian, 2017 WL 588458, at *7; see Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (finding that without evidence showing that a witness would have offered specific favorable testimony, prejudice resulting from counsel's decision not to call that witness has not been shown). Therefore, Christian failed to show how counsel's failure to call Vaughn prejudiced his case.

The district court concluded that McDuffie's and Ruiz's affidavits revealed that neither of them witnessed the altercation, so they could not have supported Christian's self-defense theory at trial. Christian, 2017 WL 588458, at *8. Both of them would have testified about the mental illnesses of both Christian and Solomon, their unpredictable relationship over the years, Solomon's reputation as a fighter and Christian's reputation as a more peaceful individual, and past incidents where they had either accused each other of stealing the other's medications or shared their medications. The district court explained that testimony about these same facts and observations had been presented at trial, so the proposed testimony by McDuffie and Ruiz would have been cumulative. Id. As a result, the district court determined that Christian had not been prejudiced by counsel's failure to call these additional witnesses and reasonable jurists would not debate this conclusion. Id.

Christian believes that counsel should have introduced Christian's medical records and called an expert witness, Dr. Christopher Abood, to show that Christian's head injury from the fight was a brain injury severe enough to immediately impair his judgment when he stabbed Solomon. The district court was not certain whether Christian's medical records were actually introduced at trial, but testimony revealed that Christian was hit with a hard object that caused a laceration and that doctors suspected that his ocular socket may have been broken, requiring a CAT scan. Id. at *9. The jury had been permitted to consider a photo of Christian's injured and swollen face, and counsel argued at trial that Christian's head injury probably affected his judgment at the time. Id.

The district court found that Dr. Abood's proposed testimony may have been problematic for Christian because it would not have necessarily established that Christian had a brain injury. Dr. Abood's affidavit stated that symptoms could “vary,” that he never personally examined Christian, and that he could only speculate that Christian may have suffered a brain injury. The district court also noted that if the jury heard Dr. Abood's opinion that a fist could have caused Christian's facial injury, Christian's theory of justifiable self-defense with a knife would have been compromised. Id.

Christian also challenged the district court's failure to address his argument that counsel should have challenged testimony by Detective Maltby regarding the seriousness of the head injury. However, Christian fails to explain how counsel's failure to object to this testimony prejudiced his case by showing that but for counsel's alleged error, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. Based on the evidence presented at trial, counsel's arguments, and the debatability of whether calling Dr. Abood would have been helpful, the district court concluded that counsel did not perform ineffectively. Reasonable jurists would not debate this conclusion for the reasons stated in the district court's opinion

Christian next claims that his counsel was ineffective for failing to call an expert witness, neuropsychologist Robert Fabiano, to testify that Solomon's version of the events was inaccurate because of brain damage caused by a significant loss of blood from the stabbing, his intoxication that night, his drug-induced coma at the hospital, and strong pain medication. Noting that the jury heard from several other witnesses who challenged Solomon's version of the altercation, the district court concluded that the expert witness would not have added anything as far as impeaching Solomon's credibility went. Id. at 10. Reasonable jurists would not debate the district court's resolution of this claim.

Christian also claimed that his counsel performed ineffectively by failing to object to the prosecutor's line of questioning of Allen Christian about a trail of blood found from the point of the altercation into Christian's house. Christian also challenged counsel's failure to have the blood tested for DNA and type. The prosecution, in questioning Allen, was apparently attempting to show that the blood came from the knife that Christian used to stab Solomon rather than from Christian's head injury. In his closing argument, Christian's counsel criticized the police and prosecution for failing to test the blood left in the area of the altercation, but counsel did not order any independent tests.

The district court concluded that the prosecutor's line of questioning was relevant to rebut Christian's claim that his injury was so bad that he bled throughout the house and that Allen's answers were admissible as opinion rather than fact. Id. at *11. The district court reasoned that, if counsel had had the blood tested, the results may have been unfavorable to Christian and that counsel's strategy was thus not deficient; counsel presented this as an open question in his closing argument and blamed the prosecutor for failing to order tests. Id. Reasonable jurists would not debate the district court's resolution of this claim.

Christian's final ineffective-assistance-of-trial-counsel claim was that counsel failed to object to prejudicial jury instructions regarding self-defense. The trial court instructed that a person “may use deadly force in self-defense only when it is necessary to do so” and that “if the defendant could have safely retreated, but did not do so,” the jury could “consider that fact in deciding whether the defendant honestly and reasonably believed he needed to use deadly force in self-defense.” The court then instructed that a person “is never required to retreat if attacked in his own home ․ nor if the person is subject to a sudden, fierce, and violent attack.”

Christian argues that the first part of the instruction was misleading in light of the fact that he was, in fact, in his own home when Solomon arrived. For habeas relief based on an allegedly faulty jury instruction, a petitioner must show “not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” but that “it violated some right which was guaranteed to the [Petitioner] by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). Challenged instructions are “evaluated not in isolation but in the context of the entire charge.” Jones v. United States, 527 U.S. 373, 391 (1999).

The district court determined that the instructions adequately informed the jurors that Christian had no duty to retreat if he was attacked in his home. Christian, 2017 WL 588458, at *11. Viewing the challenged instruction “in the context of the entire charge” as required under Jones, reasonable jurists would not debate the district court's determination. As a result, reasonable jurists would also not debate the court's conclusion that counsel did not perform ineffectively by failing to object to these instructions relating to self-defense.

Ineffective Assistance of Appellate Counsel

Lastly, Christian claimed that his appellate counsel performed ineffectively by failing to raise all of the above issues on appeal. The district court rejected this claim because none of his claims were meritorious and counsel was not ineffective for failing to raise every nonfrivolous issue on direct appeal. Christian, 2017 WL 588458, at *12; see also Jones v. Barnes, 463 U.S. 745, 751 (1983). The district court also noted that Christian raised his ineffective-assistance-of-trial-counsel claims in a supplemental pro se brief on appeal and that the state appellate court had already considered and rejected those claims. Christian, 2017 WL 588458, at *12

Christian challenges the district court's finding that his pro se brief was an adequate substitute for his appellate counsel's obligation to investigate and raise his ineffective-assistance-of-trial-counsel claims on appeal. However, even without this alternative finding, reasonable jurists would not debate the district court's resolution of this appellate-counsel claim on the sole basis that, because his underlying claims were meritless, Christian could not show prejudice from his appellate counsel's failure to raise them on appeal. See Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003).

Accordingly, the application for a COA is DENIED and the motion for IFP is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

FOOTNOTES

1.   Christian was released from prison after filing his petition but, pursuant to Carafas v. LaVallee, 391 U.S. 234, 238 (1968), the district court retained jurisdiction to consider Christian's petition for habeas relief because he was “in custody” under 28 U.S.C. § 2241(c) at the time it was filed on August 13, 2015.