NOTICE: Sixth Cirсuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Dolores Jean FEDERICO, Petitioner-Appellant,
v.
Joan YUKINS, Respondent-Appellee.
No. 93-2424.
United States Court of Appeals, Sixth Circuit.
Nov. 2, 1994.
Before: KRUPANSKY, GUY, and NORRIS, Circuit Judges.
PER CURIAM.
Dolores Jean Federico, pro se, petitions this court for a writ of habeas corpus. Federico argues, inter alia, that misconduct on the part of the prosecutor in addition to numerous trial court errors deprived her of her right to due process. Finding Federico's arguments to be without merit, we affirm.
I.
In August 1983, a jury convicted Federico of assault with intent to rob while armed, Mich.Comp.Laws Sec. 750.89, and possessing a firearm during the commission of a felony, Mich.Comp.Laws Sec. 750.227b. The circumstances that led to Federico's conviction are as follows.
As of October 1982, Federico, who was then 25 years old, had been dealing heroin and marijuana for several years. George McCue and Ricki Sparks were two of Federico's regular heroin clients. Evidently, Federico did not always insist that McCue and Sparks pay immediately upon their receipt of heroin. On some occasions, Federico would "front" heroin in exchange for McCue's and Sparks' promise that they would make the appropriate payments at a later date. As a result of this arrangement, McCue and Sparks both owed Federico money in mid-October 1992.1
Exactly how these debts were to be satisfied is a matter of some dispute. At trial, two separate theories--one offered by McCue and evidently supported by Sparks and the other offered by Federico--were advanced. According to McCue, Federico proposed that she, McCue, and Sparks rob a third party. In response, McCue and Sparks suggested a possible victim; namely, Jess Brown, a friend of McCue and, like Federico, a marijuana dealer.
The plan called for McCue to contact Brown under the guise of brokering a drug transaction. McCue, in his van, would then transport Brown to the location at which this transaction was supposed to take place. In the meantime, Sparks and Federico were to drive Federico's car to a remote location, which happened to be along the same route that McCue and Brown were to use. Sparks and Federico were to park and open the car's hood to make it appear as though the сar had experienced mechanical difficulties. Federico then was to flag down McCue's van for assistance. When Brown and McCue emerged from the van, Federico was to rob them both, Brown of the $250 he had brought with him to purchase marijuana and McCue of $100.2
Sparks also testified at Federico's trial, providing the following account of the events that transpired on October 21, 1982, the day the plan was set in motion. He recalled that he and Federico drove to the predetermined meeting place and that Federico had in her possession a .38 caliber pistol. As they awaitеd McCue's and Brown's arrival, Sparks hid in front of Federico's car. Sparks stated that after McCue's van arrived on the scene, he heard muffled voices and then a sound like a firecracker. Federico then ran back to her car, threw the gun into the car, closed the hood, and drove off. Distressed, she explained to Sparks that the pistol had discharged accidentally. Brown died later that evening of a gunshot wound to the head.
Federico told a different story. Federico testified that she, and not Brown, was the intended victim of a "set up," one that Sparks and McCue devised. She stated that she went to the spot where the shooting occurred to consummate a drug deal that Sparks claimed to have arranged. Although Sparks was not there at the time, McCue arrived in his van accompanied by someone she did not know. Federico then informed McCue that the deal was off apparently because she was reluctant to go forward in the presence of a stranger. When she tried to get into her car, McCue knocked her to the ground. As this was happening, the person who had come with McCue got out of the van. A struggle ensued between McCue and Federico, during which a gun thаt McCue had been carrying fell from his person. Federico picked up the gun and, pointing it at McCue, directed McCue and his companion to get back into the van. It was at this point, Federico recounted, that Sparks appeared. Federico surmised that Sparks probably had been hiding out in a nearby wooded area. Sparks, approaching Federico from behind, grabbed the gun Federico was holding. The gun discharged, and the man who had accompanied McCue then dropped to the ground.
McCue, Sparks, and Federico all fled the scene. McCue and Sparks were arrested soon after the shooting. Federico, on the other hand, managed to elude the police for several weeks. She eventually surrendered to authorities on December 7, 1982. McCue and Sparks agreed to testify against Federico as part of a plea agreement pursuant to which both were charged only with assault with intent to rob while armed.3
Federico was bound over for trial in Michigan state court on four counts: one count of felony murder; one count of assault with intent to rob while armed; and two counts of possession of a firearm during the commission of a felоny. On August 11, 1983, a jury found Federico not guilty of felony murder, but guilty of both assault with intent to rob and a felony-firearm charge. Federico subsequently was sentenced to terms of imprisonment (to be served consecutively) of 20 to 60 years on the assault charge and two years on the felony-firearm charge.
The Michigan Court of Appeals affirmed Federico's conviction and sentence, and the Michigan Supreme Court denied her leave to appeal. Federico then filed her first petition for habeas relief, which petition was dismissed without prejudice in 1987 on the ground that she had failed to exhaust her state court remedies. Federico then moved the Wayne County, Michigan, Circuit Court for relief from judgment, which motion was denied. Federico filed an application for leave to appeal the denial of her motion with the Michigan Court of Appeals and the Michigan Supreme Court, but in both instances her application was denied.
Her state court remedies thus exhausted, Federico, in 1992, filed a second petition for a writ of habeas corpus in United States district court. The matter was then referred to a magistrate judge, who recommended that the petition be dismissed. The district court adopted the magistrate judge's recommendation and dismissed Federico's petition in September 1993. This appeal followed.
II.
Federico raises a number of issues on appeal. These issues will be addressed in turn.
A. Prosecutorial Misconduct & Ineffective Assistance of Counsel
Federico first argues that the conduct of the prosecutor compromised her right to a fair trial. Specifically, Federico contends that the prosecutor acted improperly by: (1) introducing into evidence a letter (sent by Federico to her husband) that the prosecution claimed contained an admission of guilt;4 (2) questioning her on cross-examination as to the drug trafficking business in general and her activities within that business in particular, even though the crime for which she was on trial was not drug-related; (3) asserting a motive to explain her commission of the crimes in question without an evidentiary basis to do so;5 and (4) eliciting testimony from Sparks and McCue indicating they had previously made statements to the police that were consistent with their testimony at trial.6 Because we conclude that Federico, by failing to assert contemporaneous objections at trial, has procedurally defaulted with respect to virtually all of these claims, we afford these claims only limited review.
In Wainwright v. Sykes,
Whether a state court rested its holding on a procedural default so as to bar federal habeas review is a question we review de novo. Couch,
Here, the last reasoned state court judgment on Federico's claim of prosecutorial misconduct is the opinion issued by the Michigan Court of Appeals affirming her conviction and sentence.7 A close reading of this opinion reveals that the court premised its disposition of this claim on procedural grounds; namely, Federico's failure to object contemporаneously to the various instances of alleged misconduct. To be sure, the court did address the merits of Federico's allegations, but it did so only to determine whether a failure to consider the allegations would result in a miscarriage of justice. See App. at 304-11; see also McBee v. Abramajtys,
In Paprocki v. Foltz,
The Michigan Court of Appeals did not conduct the sort of review of the jury instructions that presumably would have been undertaken had there been a timely objection to them; instead, the court inquired only whether affirmance of the conviction would "result in manifest injustice" because of the alleged instructional error. In this connection the state court did, necessarily, allude to the merits of the instructions. If this limited discussion is tantamоunt to overlooking a procedural default, then Mr. Paprocki need not show cause for the failure to object and prejudice from that failure.
What the state court of appeals did, as we understand it, was to enforce the procedural bar while reserving the right to excuse it if necessary to prevent manifest injustice. We would be loath to adopt an exception to the "cause and prejudice" rule that would discourage state appellate courts from undertaking the sort of inquiry conducted by the Michigan court, and we do not believe that the state cоurt's explanation of why the jury instructions resulted in no manifest injustice can fairly be said to have constituted a waiver of the procedural default.
Id. at 284-85 (citations omitted).
Federico's failure to object to the conduct of the prosecutor at trial is not, in and of itself, fatal to her claim. A petitioner that has procedurally defaulted on a particular claim still may have that claim reviewed by a federal court if she can "show cause for the procedural default and prejudice attributable thereto." Murray v. Carrier,
Counsel is ineffective for purposes of the Sixth Amendment if it falls "below an objective standard of reasonableness ... and ... there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Kimmelman v. Morrison,
It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sеntence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, 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." There are countless ways to provide effective assistance in any given case.
Id. at 689 (citations omitted); see also Paprocki,
Initially, we note that Federico did not present many of the specific assertions of ineffective assistance of counsel in her second petition for a writ of habeas corpus. In any event, we are persuaded that the legal representation rendered by Federico's trial counsel passes constitutional muster. Whether Federico's counsel's failure to object constituted ineffective assistance of counsel, of course, must be judged in light of what was conceivably objectionable. Our review of the record leads us to the conclusion that the various instances of alleged prosеcutorial misconduct were not so clearly egregious that Federico's counsel can be faulted for failing to object to them. In short, Federico has not overcome the presumption that her counsel's failure to object was the result of something other than sound trial strategy. For this reason, we hold that neither Federico's prosecutorial misconduct claim nor her ineffective assistance of trial counsel claim can be sustained.9
Similarly, we reject as meritless Federico's claim that she was denied effective assistance of appellate counsel. As evidence of the alleged ineffective representation, she notes that her appellate counsel not only failed to advance a claim of ineffective assistance of trial counsel, even though her trial counsel had not objected at appropriate moments to the conduct of the prosecutor, but also failed to "federalize" issues that he raised on appeal, which failure, it is urged, precluded their review in a federal habeas proceeding.
The test for analyzing ineffective assistance of counsel claims is the same rеgardless of whether the trial counsel's or the appellate counsel's performance is at issue; that is, the defendant must establish, first, that counsel's performance was objectively unreasonable and, second, that she suffered prejudice as a result (i.e., that but for counsel's deficient performance, she would have had a reasonable probability of success on appeal). See Bowen v. Foltz,
B. Sentencing Issues
Next, Federico takes issue with the manner in which her sentencing proceeding was conducted. First, she contends that the sentencing judge acted improperly when he stated that Federico's "only remorse in this matter is, really, with the fact that [she was] apprehended and convicted." (App. 757) As to this contention, however, the Michigan Court of Appeals ruled that the judge's statement is "not comparable to a consideration of a refusal to admit guilt[,]" which may be prohibited under Michigan law. (App. 312.) We are in full agreement with state appellate court's ruling, and we see no reason to elaborate on this matter.
Equally unavailing is Federico's claim that the sentencing judge erred by imposing on her a sentence that was harsher than those received by her codefendants. Federico's position, however, cannot withstand scrutiny, for the existence of a sentencing discrepancy among defendants will not, itself, give rise to a constitutional violation. See United States v. Fry,
We also reject Federico's assertions that the sentencing judge disregarded her presentence report and that she was not given the opportunity to speak in mitigation of her sentence. The former assertion is without foundation in the record, and, in any event, "[t]he failure to use a рresentence report is not of constitutional dimensions." Katz v. King,
Federico's claims of error with respect her sentencing proceeding therefore must fail.
C. Jury Instructions
In her penultimate argument, Federico contests several aspects of the jury instructions issued by the trial court. For instance, she contends that the сourt's felony-firearm instruction required the jury to find her guilty of either felony murder or assault with intent to rob while armed as a prerequisite to considering the felony-firearm charge. As such, she submits that the instruction violated the Michigan Supreme Court's decision in People v. Lewis,
As pointed out by the magistrate judge, however, Federico has procedurally defaulted with respect to each of these claims. We agree with the magistrate judge that Federico can show neither cause for defaulting nor prejudice resulting therefrom. Assuming arguendо, however, that Federico had not procedurally defaulted in this instance, we still would find against her on the merits. For example, as to her claim regarding the court's felony-firearm charge, we note that "[a] jury instruction which violates only state law cannot provide a basis for habeas corpus relief." Wood v. Marshall,
In a habeas proceeding, allegedly improper jury instructions must be shown to have infected the accused's trial to such a degree as to constitute a clear violation of due process. The petitioner must shоw more than that the instructions are undesirable, erroneous, or universally condemned.
Additionally, we reject Federico's claim regarding the trial court's felony-murder instruction. Whatever technical error the court may have committed in this regard is, in our view, harmless in light of the fact that Federico ultimately was acquitted of her felony-murder charge. That Federico was acquitted of murder also means that Federico cannot now complain of the trial court's failure to instruct on unintentional shooting and self-defense, for these defenses are, as the court found, relevant to a murder, and not an assault, charge. Also without merit is Federico's assertion that the court erred by implying that she could be convicted even if the government had not proved guilt beyond a reasonable doubt so long as the jurors believed the testimony of her alleged accomplices. Although the court certainly misstated the law in using the disjunctive, we share the state appellate court's view that, in the context of the entire trial, this misstatement does not warrant the relief Federico seeks. See Cupp v. Naughten,
D. Other Issues
Finally, Federico, without elaboration, urges this court to consider a number of issues that she presented to the district court.12 The magistrate judge evaluated and rejected each of these issues in a thorough and well-reasoned report and recommendation, which the district court adopted. We are not convinced that these rulings should be disturbed.
For the foregoing reasons, the decision of the district court denying Federico's petition for a writ of habeas corpus is AFFIRMED.
Notes
While McCue and Sparks estimated that their debts exceeded $200, Federico set the figure at $155
The $100 was, in actuality, Federico's, not McCue's. By robbing McCue, and retrieving her money, Federico evidently had hoped to lend an air of authenticity to the scheme
McCue and Sparks were sentenced to terms of imprisonment of four and one-half years to 15 years
The letter contained the following language: "I thought that we could have a nice life together, but all of this shit happened. It did happen the way they said it happened, but that is not important. What is important to me right now is where my daughter is." (App. 307.)
The prosecution's theory evidently was that Federico needed money to pay her suppliers and "to destroy her reputation as an easy mark on the streets." (App. 305.)
Federico also claims that the prosecutor engaged in miscоnduct by: "act[ing] as his own witness" (Petitioner's Brief at 19); making certain " 'testimonial' assertions" (id. at 20); introducing an admission of guilt (i.e., the letter noted above) on cross-examination, rather than in his case in chief; repeatedly informing the jury that two prosecution witnesses (apparently Sparks and McCue) had agreed to testify truthfully against her as part of their respective plea bargains; attempting to " 'educate' the jurors during voir dire that accomplices should be held to the same standard as everyone else" (id. at 25); "denigrat[ing]" Sparks' and McCue's plea bargain (id.); and misstating the law on at least threе separate occasions (id. at 26). Because Federico, however, did not advance any of these arguments in her second petition for a writ of habeas corpus (i.e., the petition that is the subject of the instant appeal), we need not address them here. See Chandler v. Jones,
As noted abоve, subsequent to this opinion, Federico filed with the Wayne County Circuit Court a motion for relief from judgment. In denying this motion, the court briefly alluded to Federico's claims of prosecutorial misconduct. The court, however, did not consider the merits of these claims, noting that the identical claims already had been considered and rejected by the state court of appeals
Even a petitioner who does not show cause and establish actual prejudice has one final means of obtaining habeas review. As the Court in Murray explained, "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."
We note that Federico's counsel did object at one point to questions the prosecutor asked of Federico involving the evils of the drug trade. Althоugh we have recently confirmed that a single isolated remark can form the basis for a successful prosecutorial misconduct claim, United States v. Carroll,
Even if we were to conclude that Federico's appellate counsel should have pursued a claim of inеffective assistance of trial counsel, we would still resolve the prejudice issue in respondent's favor. In this regard, we note that review of Federico's claim of prosecutorial misconduct was not entirely foreclosed; in fact, this claim was reviewed by the Michigan Court of Appeals (albeit under the manifest injustice standard). The state appellate court found that with regard to most of the alleged instances of misconduct, the prosecutor actually had acted entirely within his bounds. And, while the court found that the prosecutor had acted inappropriately on three separate occasions at trial, the court nevertheless held that no manifest injustice had occurred. Under these circumstances, we are unpersuaded that Federico suffered prejudice due to the performance of her appellate counsel
In fact, the record reveals that the trial court properly instructed the jury on the beyond-a-reasonable-doubt standard on numerous occasions
Specifically, Federico asserts that her due process rights have been impaired in that certain portions of the trial transcript are unavailable, the trial judge issued a deadlocked jury instruction that departed substantially from the ABA's model instruction, and there was a multiplicity of errors at trial