WEBSTER v. HORTON (2019)

ORDER

Steven James Webster, a Michigan prisoner proceeding pro se, appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Webster’s timely notice of appeal is construed as an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b). He also moves for permission to proceed in forma pauperis (IFP).

A Michigan jury convicted Webster of two counts of first-degree premeditated murder, in violation of Michigan Compiled Laws § 750.316(1)(a); felon in possession of a firearm, in violation of section 750.224f; and possession of a firearm during the commission of a felony, in violation of section 750.227b (felony-firearm). See People v. Webster, No. 12-030602-FC, 2014 WL 6679524 (Mich. Ct. App. Nov. 25, 2014) (per curiam) (unpublished). These convictions arose out of the murders of Amyre Aikins and Oscar Knuckles, who were shot while sitting in a blue Avalanche truck in a parking lot in Flint, Michigan, in January 2012. Id. at *1. Webster stated to police that he shot into the vehicle because it appeared to him to be the same vehicle from which shots were fired at him in November 2011. Id. At trial, Webster admitted to using a .380 pistol to fire into the vehicle, arguing that the evidence supported only a lesser charge of voluntary manslaughter.

Webster was sentenced to life imprisonment on each murder count, thirty-eight to sixty months on the felon in possession count, and two years for the felony-firearm conviction. The Michigan Court of Appeals affirmed Webster’s conviction and sentence, and the Michigan Supreme Court denied leave to appeal. Id. Webster filed a motion for relief from judgment under Michigan Court Rule 6.502, which the trial court denied.

In June 2018, Webster filed his § 2254 habeas petition, raising nine grounds: (1) the trial court erred in reversing its order granting a new trial on the basis of the jury’s consideration of extrinsic evidence; (2) the trial court erred in admitting evidence that he had shot at a police officer in a separate incident; (3) he was denied his right to due process when the state court admitted a statement by Officer Cynthia Herfert mischaracterizing one of his statements to police and when the prosecutor failed to correct this testimony; (4) the evidence was insufficient to support his convictions for first-degree murder; (5) the trial court’s cumulative errors required reversal of his convictions; (6) trial counsel was ineffective for failing to cross-examine Oscar Knuckles Sr. regarding his visual impairment; (7) trial counsel was ineffective for failing to move to strike the testimony of Officer Terry Lewis as hearsay; (8) the trial court erred in denying counsel’s motion for a new trial without an evidentiary hearing; and (9) the trial court abused its discretion in admitting the testimony of Officer Rodney Hall. The court denied the habeas petition, finding that claims three, six, and seven were procedurally defaulted and rejecting the remaining claims on the merits. The court also denied a COA.

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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Habeas corpus relief may be granted on claims that were adjudicated in state court only if the state-court adjudication was contrary to, or involved an unreasonable application of, clearly established federal law, or the state-court adjudication “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). 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. Miller-El, 537 U.S. at 336-37, 123 S.Ct. 1029. When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Extraneous Evidence (Claim One)

Webster argues that his Sixth Amendment right to a fair trial was violated when the jury was exposed to extraneous information that created the possibility of prejudice. This occurred when the jury inadvertently heard a portion of Webster’s recorded interview with the police suggesting that he had planned to kill a police officer. The parties had agreed prior to trial that this portion of the interview should be redacted. Webster, 2014 WL 6679524, at *2. It was not discovered until after the jury’s verdict that this information had been inadvertently revealed to the jury. Id. Counsel then filed a motion for a new trial, which the court initially granted. The prosecution filed a motion for reconsideration, and after the court individually interviewed eleven jurors in chambers, it determined that the divulgence of the extraneous information was harmless beyond a reasonable doubt and vacated its prior order granting a new trial. Id. The state court of appeals affirmed the trial court’s decision, concluding that Webster failed to show a “real and substantial possibility that such information could have affected the jury’s verdict because he [could not] show ․ a ‘direct connection between the extrinsic material and the adverse verdict.’ ” Id. at *3 (applying the standard set forth in People v. Budzyn, 456 Mich. 77, 566 N.W.2d 229, 235 (1997)). Accordingly, the court determined that the failure to redact the portion of the interview in question “was harmless beyond a reasonable doubt.” Id. at *4.

Webster raised a variation of this claim in his motion for post-conviction relief, arguing that the trial court erroneously denied his motion for a new trial without conducting an evidentiary hearing on the claim. The trial court refused to consider the claim on the ground that it had already been resolved on direct appeal and because any error was harmless “in light of the overwhelming untainted evidence of defendant’s guilt.” Id. at *3 n.4.

The district court presumed that the state court’s findings on the impartiality of the jurors was correct because Webster had not shown otherwise. Therefore, the district court agreed with the state court that, based on the jurors’ responses to the trial court’s questioning on the issue, Webster failed to show that the unredacted portion of his recorded statement had affected the jury verdict. Citing Davis v. Ayala, ––– U.S. ––––, 135 S. Ct. 2187, 192 L.Ed.2d 323 (2015), the district court also concluded that the state court reasonably ruled that any error was harmless in light of the overwhelming evidence of Webster’s guilt.

Where, as here, a state court determines that an error of constitutional magnitude is harmless, the error must be harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Moreover, “[w]hen a Chapman decision is reviewed ․ ‘a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.’ ” Davis, 135 S. Ct. at 2199 (quoting Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)).

“When a trial court is presented with evidence that an extrinsic influence has reached the jury which has a reasonable potential for tainting that jury, due process requires that the trial court take steps to determine what the effect of such extraneous information actually was on that jury.” Ewing v. Horton, 914 F.3d 1027, 1030 (6th Cir. 2019) (quoting Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999)); see also Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Here, the trial court took “steps to determine what the effect of [the] extraneous information” was on the jury. See Ewing, 914 F.3d at 1030. As we explained in Ewing, due process does not necessarily require a new trial in such a case, and Webster has failed to show that actual prejudice resulted from the error, particularly in light of the overwhelming evidence of his guilt, as described below. As a result, reasonable jurists would not debate the district court’s resolution of this claim based on its rationale that any error was harmless.

Challenge to the Admission of Certain Evidence (Claims Two and Nine)

In claim two, Webster argued that the trial court erred when it admitted evidence that Webster shot a police officer while fleeing from officers during a domestic violence call a few weeks after the murders. In claim nine, Webster argued that the trial court erred in allowing the testimony of Officer Hall—the officer who was shot. The state court rejected these claims on the merits because, under state law, the evidence was admissible and not unfairly prejudicial considering its relevance to Webster’s consciousness of guilt in the murder case and his possession of a firearm. Webster, 2014 WL 6679524, at *5. The district court concluded that these evidentiary claims were state-law questions not subject to federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The district court relied upon Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012), noting that the Supreme Court “has never held ․ that a state trial court’s admission of relevant evidence, no matter how prejudicial, amounted to a violation of due process.” Reasonable jurists would not debate the district court’s resolution of these two evidentiary claims.

Sufficiency of the Evidence (Claim Four)

Webster argued that the evidence was insufficient to support the premeditation and deliberation elements of first-degree premeditated murder in Michigan. Sufficient evidence exists to support a conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The inquiry involves two layers of deference: one to the jury’s verdict under Jackson, and a second to the state court’s decision under § 2254(d). See Coleman v. Johnson, 566 U.S. 650, 651, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012) (per curiam). When assessing the sufficiency of evidence, this court does not weigh the evidence, assess the credibility of witnesses, or substitute its judgment for that of the jury. United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994). “All reasonable inferences and resolutions of credibility are made in the jury’s favor.” United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012).

In Michigan, first-degree murder has two essential elements: (1) the intentional killing of a person, and (2) premeditation and deliberation. Mich. Comp. Laws § 750.316(1)(a); People v. Bennett, 290 Mich.App. 465, 802 N.W.2d 627, 633 (2010). Premeditation and deliberation may be established by evidence showing: “(1) the prior relationship of the parties; (2) the defendant’s actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.” People v. Schollaert, 194 Mich.App. 158, 486 N.W.2d 312, 318 (1992).

According to the state appellate court’s summary of the evidence, Webster observed a blue Avalanche in a parking lot and believed the occupant may have been the person who shot at him a few weeks prior. Webster, 2014 WL 6679524, at *4. He shot into the Avalanche using a .380-caliber semiautomatic pistol, and shell casings matching this firearm were later found at the crime scene. The state court considered Webster’s statements that he shot into the passenger side and then returned to shoot into the passenger window “seven or eight times” as relevant to establishing premeditation and deliberation. The state appellate court also considered the brutal circumstances of the killing, including the use of a high-caliber gun and a shotgun, and the indiscriminate shooting into a vehicle that Webster had not positively identified as the one involved in the prior shooting where he was injured and without knowing the identities of the occupants. The court suggested that Webster had an opportunity to “think” before the shooting and to “measure and evaluate the major facets” of his decision, finding that the acts were premeditated and deliberate. In addition, the court considered a letter that Webster wrote to his codefendant warning him to discard the shotgun he had used. The court also noted Webster’s flight from police during the domestic violence call, suggesting an attempt to conceal the murders, indicating Webster’s consciousness of guilt. Finally, the state appellate court considered the relationship between Webster and his codefendant as they planned the shooting apparently in retribution for a prior incident, including the fact that Webster owned the shotgun that his codefendant used. Id.

Relying on the state court’s factual summary, the district court applied Jackson and found that the following evidence supported premeditation and deliberation in Webster’s case: (1) Webster believed that he had been previously targeted by the occupants of the Avalanche, establishing a prior dispute and relationship with the victims (although Webster was mistaken about their identities); (2) Webster ambushed the victims with the help of a codefendant; (3) Webster filed multiple gunshots at the same vehicle, showing intent to harm the occupants; (4) Webster acted in concert with his codefendant in planning the ambush; and (5) Webster fled the scene after the shooting.

Viewing the above evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of premeditation and deliberation, see Jackson, 443 U.S. at 324 n.16, 99 S.Ct. 2781, and it cannot be said that the state court unreasonably applied Jackson in arriving at this conclusion. See Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010). Reasonable jurists would not debate the district court’s resolution of this claim.

Cumulative Error (Claim Five)

Webster argued that the trial court’s cumulative errors entitled him to habeas relief. As stated by the district court, such claims of cumulated trial errors are not cognizable under § 2254. Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006). Reasonable jurists would not debate the district court’s rejection of this claim.

Denial of Evidentiary Hearing on Post-Conviction Motion (Claim Eight)

Webster claimed that the trial court erred in denying his post-conviction motion without an evidentiary hearing. As the district court explained, such challenges to state post-conviction proceedings are “outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). No reasonable jurist could debate the district court’s conclusion.

Mischaracterization of Testimony (Claim Three)

Webster’s third claim is a challenge to testimony by Officer Herfert as a mischaracterization of Webster’s statement to the police. Webster frames this challenge as a claim of prosecutorial misconduct based on the prosecutor’s failure to correct the testimony. Officer Herfert testified that Webster had stated that after he saw the Avalanche in the parking lot, he “walked by the driver’s side, he stopped, thought[,] and then decided to shoot into the passenger side of the vehicle.” Webster, 2014 WL 6679524, at *6. Webster’s actual statement was that, when he and his codefendant were on their way to the liquor store, he recognized what he believed was the Avalanche carrying passengers who had previously shot at him. Id. According to Webster, he first approached the driver’s side of the truck but then “thought the person who shot [him] was ․ on the passenger’s side, so [he] shot in there.” Id. Webster then stated that he went back to the car and fired about seven or eight shots into the passenger-side window. Id.

Noting that Webster had failed to object to Herfert’s testimony at trial and thus failed to preserve the claim for appellate review, the state court of appeals reviewed it for plain error. Id. Reasonable jurists would not debate the district court’s determination that this claim is procedurally defaulted, see Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005), because the Michigan Court of Appeals reviewed the claim for plain error, see Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001), and Michigan’s contemporaneous-objection rule is an independent and adequate state procedural rule, see Taylor v. McKee, 649 F.3d 446, 450-51 (6th Cir. 2011). In addition, Webster did not argue that there was cause and prejudice to excuse the procedural default, and he has not shown that a miscarriage of justice will occur if his claim is not reviewed on the merits. See Sutton v. Carpenter, 745 F.3d 787, 789-90 (6th Cir. 2014).

Ineffective Assistance of Trial Counsel (Claims Six and Seven)

Webster’s two ineffective-assistance claims challenging counsel’s failure to cross-examined Oscar Knuckles Sr. and to move to strike Officer Lewis’s testimony were presented for the first time in his Rule 6.502 motion. Although the last reasoned state court decision, entered by the state trial court, referred generally to the standard for reviewing a procedurally defaulted claim—that a defendant demonstrate “good cause for failure to raise an issue and actual prejudice from the alleged irregularity”—the trial court did not apply this standard to Webster’s ineffective-assistance claims. Rather, the state trial court addressed those two claims on the merits. Therefore, reasonable jurists could debate whether the district court was correct in dismissing claims six and seven as procedurally defaulted.

Even if the district court’s procedural ruling is debatable, reasonable jurists would not debate that Webster failed to state a valid claim of the denial of a constitutional right. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. Ineffective-assistance claims are reviewed under a two-part test requiring a defendant to show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In evaluating counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

Knuckles Sr. had not been an eyewitness to the crime and testified only that Knuckles Jr., one of the victims, had gone out on the night in question in the Avalanche that Knuckles Sr. owned and never returned home. He also testified about the condition of the vehicle when he retrieved his personal property from it after the crime. Knuckles Sr. testified that he was legally blind but could still see.

In rejecting Webster’s ineffective-assistance claim, the state trial court concluded that counsel’s failure to cross-examine Knuckles Sr. was not deficient or prejudicial performance because his testimony about the condition of the truck was cumulative to the photographs of the Avalanche and Officer Lewis’s testimony about the vehicle’s condition. Moreover, the probative value of the testimony regarding the vehicle’s condition was minimal in light of Webster’s admission that he shot into the truck. Based on these circumstances, the state court determined that counsel’s decision to not cross-examine Knuckles Sr. was reasonable trial strategy. Reasonable jurists would not debate the district court’s rejection of this claim.

Likewise, the state court found that counsel’s failure to move to strike Officer Lewis’s statement that he “was informed by [an] individual that ․ [the individual] was the only person that approached the vehicle” was also reasonable trial strategy. Webster had argued that Lewis’s statement eliminated the possibility that another person approached the Avalanche, but as the state court explained, Webster’s reference to the time of the approach was taken out of context. Lewis was referring to persons who had approached (or not approached) the vehicle at the time that he arrived at the scene to investigate. Lewis’s statement in question did not implicate or prejudice Webster in any way regarding his involvement in the shooting. Reasonable jurists would not debate the district court’s rejection of this claim for Webster’s failure to state a valid constitutional claim. See Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Accordingly, the court DENIES Webster’s application for a COA and DENIES the motion for IFP as moot.