Munson v. Kapture

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 20, 2004
• Docket: 03-1563
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Munson v. Kapture No. 03-1563 ELECTRONIC CITATION: 2004 FED App. 0318P (6th Cir.) File Name: 04a0318p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT BOYCE F. MARTIN, JR., Circuit Judge. Maurice _________________ Munson, a Michigan prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus. For the MAURICE MUNSON, X reasons that follow, we AFFIRM. Petitioner-Appellant, - I. - - No. 03-1563 v. A jury convicted Munson of two counts of armed robbery - > in violation of M.C.L. § 750.529 and two counts of assault , with intent to commit criminal sexual conduct (penetration) ROBERT J. KAPTURE , Warden, - in violation of M.C.L. § 750.502(G)(1). The events giving Respondent-Appellee. - rise to Munson’s prosecution transpired at Juanita’s House of N Beauty in Detroit, Michigan, on late Friday, June 18, or early Appeal from the United States District Court June 19, 1993, as Sherrease Carter, age thirty, an employee of for the Eastern District of Michigan at Detroit. the beauty shop, and her sixteen-year-old niece, Shamika No. 01-71956—Avern Cohn, District Judge. Kincaid, were leaving the shop. The evidence adduced at trial indicates that as Carter and Kincaid were leaving the shop, Argued: August 12, 2004 Munson appeared and forced them back inside at knifepoint. He ordered them to undress, which they did, and he Decided and Filed: September 20, 2004 proceeded to take various items from the shop (including money, hair clippers and jewelry), as well as items from Before: KEITH, MARTIN, and ROGERS, Circuit Judges. Carter and Kincaid (including clothing and sandals that they had just purchased and jewelry). _________________ Munson then took Carter into a back room and threatened COUNSEL Kincaid that she would be next. In the back room, Munson sat down on a chair and forced Carter onto his lap. Munson ARGUED: James Sterling Lawrence, Detroit, Michigan, for put the knife down momentarily as he attempted to insert his Appellant. Debra M. Gagliardi, OFFICE OF THE penis into Carter’s vagina, at which point Carter grabbed the ATTORNEY GENERAL, Lansing, Michigan, for Appellee. knife and stabbed him multiple times. Carter and Kincaid, ON BRIEF: James Sterling Lawrence, Detroit, Michigan, still naked, immediately ran out of the shop. They observed for Appellant. Laura Graves Moody, OFFICE OF THE Munson leave the shop with packages containing their newly- ATTORNEY GENERAL, Lansing, Michigan, for Appellee. purchased sandals and clothing, among other things. Carter and Kincaid were soon picked up by a motorist who took

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them to the police station. When the victims later returned to affirmed the conviction and sentence, and the Michigan the shop, they discovered a pager that Munson had apparently Supreme Court denied leave to appeal. dropped during the incident. Munson then filed in the state trial court a post-conviction The police located Munson by tracing the pager, which was motion for relief from judgment, in which he raised five new registered to one “Moe Rone Monson.” After discovering claims: (1) the warrantless arrest, search and seizure deprived that there was an individual named Maurice Munson in the him of due process; (2) he was denied a fair and impartial trial Detroit area with a criminal record, police went to his because of prosecutorial misconduct; (3) his trial counsel residence, which was his aunt’s apartment. Munson’s former rendered ineffective assistance; (4) the cumulative effect of girlfriend, Keysha Monique Tate, was at the apartment at the the trial errors deprived him of a fair trial; and (5) his time and permitted the police to enter after they repeatedly appellate counsel rendered ineffective assistance. knocked on the door. Munson was arrested in the apartment, at which time the police seized, without a warrant, various The state trial court denied Munson’s motion in a written incriminating items, including cash, gauze bandages, hair order that rejected each of his new claims. With respect to the clippers, sandals, new clothing items and jewelry. prosecutorial misconduct claim, the court held that “[t]he defendant fails to show just cause why prosecutor misconduct Tate gave a statement to police, which she confirmed and was not raised in earlier appeals. Further, the conduct elaborated upon at trial, indicating that Munson had bandages complained of did not deny defendant a fair trial.” The on his chest when she arrived at the apartment Saturday district court found the remaining claims to be without merit morning. Tate also stated that on the morning of his arrest, for reasons other than Munson’s failure to raise them earlier. Munson gave her a pair of sandals, various clothing items, cash and a ring. Carter and Kincaid also positively identified The Michigan Court of Appeals denied leave to appeal in Munson as the perpetrator at separate lineups and at trial. an order that states as follows: Among the pieces of physical evidence admitted at trial were the pager and the items seized in the apartment upon The Court orders that the application for leave to Munson’s arrest, which apparently were the same items stolen appeal is DENIED because defendant has failed to meet from the victims and the beauty shop. the burden of establishing entitlement to relief under MCR 6.508(D). Munson did not testify at trial. He asserted an insanity defense, with all expert witnesses agreeing that he was The Court further orders that the motion to remand is mentally ill but disagreeing as to whether he was criminally DENIED because defendant has failed to show that responsible for his actions. The jury found Munson mentally development of a factual record is required for appellate ill but guilty of robbery and assault. He was sentenced to consideration of the issues. MCR 7.211(C)(1)(a)(ii). prison for a term of twenty-five to sixty years. The Michigan Supreme Court also denied leave to appeal for Munson filed a direct appeal to the Michigan Court of the same reason, in an order stating: Appeals, raising only one issue: that his sentence was disproportionately high. The Michigan Court of Appeals On order of the Court, the delayed application for leave to appeal from the May 24, 2000 decision of the No. 03-1563 Munson v. Kapture 5 6 Munson v. Kapture No. 03-1563

Court of Appeals is considered, and it is DENIED, test to be used in determining whether a habeas claim has because the defendant has failed to meet the burden of been procedurally defaulted: establishing entitlement to relief under MCR 6.508(D). First, the court must determine that there is a state Munson next sought relief in federal court, by filing the procedural rule that is applicable to the petitioner’s claim instant petition for a writ of habeas corpus. The petition and that the petitioner failed to comply with the rule . . . . asserted essentially the same claims that were presented in his Second, the court must decide whether the state courts motion for post-conviction relief: (1) the warrantless arrest actually enforced the state procedural sanction . . . . and search and seizure denied him due process; (2) the Third, the court must decide whether the state procedural prosecutor engaged in misconduct; (3) he was denied the forfeiture is an “adequate and independent” state ground effective assistance of trial counsel; (4) cumulative error on which the state can rely to foreclose review of a rendered the trial unfair; and (5) he was denied the effective federal constitutional claim . . . . Once the court assistance of appellate counsel. The district court held that determines that a state procedural rule was not complied each claim was procedurally defaulted, but proceeded to with and that the rule was an adequate and independent analyze whether ineffective assistance of trial or appellate state ground, then the petitioner must demonstrate . . . counsel constituted “cause” to excuse the procedural default. that there was “cause” for him to not follow the Concluding that neither trial counsel nor appellate counsel procedural rule and that he was actually prejudiced by rendered ineffective assistance, the district court denied the the alleged constitutional error. petition; it granted a certificate of appealability, however, on the issues of whether Munson’s claims were each Id. at *7-*8 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th procedurally defaulted and whether he was denied the Cir. 1986)). effective assistance of trial or appellate counsel. This appeal followed. For purposes of procedural default, the “state judgment” with which we are concerned is “the last explained state court II. judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). Munson argues that the last explained state court judgment is We review de novo the district court’s denial of a petition the trial court’s opinion denying his post-conviction motion for a writ of habeas corpus. Clinkscale v. Carter, No. 02- for relief. In that opinion, the court relied on procedural 4219, 2004 WL 1516670, at *3 (6th Cir. July 8, 2004). As default in rejecting only one of his claims; it denied the other noted, the district court held that each of Munson’s habeas claims on their merits. Contrary to Munson’s assertion, claims was barred by the doctrine of procedural default. however, the last explained state court judgment in this case “Under the procedural default doctrine, [a] federal court is is the Michigan Supreme Court’s order denying review of generally barred from considering an issue of federal law Munson’s claims based upon his failure to comply with Rule arising from the judgment of a state court if the state 6.508(D).1 We have held that orders such as that issued by judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the 1 [state] court’s decision.” Id. at *7 (citation and internal Rule 6.508(D), which governs post-conviction relief, provides as quotation marks omitted). We have articulated a four-part follows: No. 03-1563 Munson v. Kapture 7 8 Munson v. Kapture No. 03-1563

the Michigan Supreme Court constitute “explained” state the procedural bar set forth in Rule 6.508(D) constitutes an court judgments for purposes of procedural default. See, e.g., adequate and independent ground on which the Michigan Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000) Supreme Court may rely in foreclosing review of federal (holding that an order issued by the Michigan Supreme Court claims. See, e.g., Simpson, 238 F.3d at 407-08 (holding that stating that the petitioner had “failed to ‘meet the burden of the Michigan Supreme Court’s statement that the petitioner establishing entitlement to relief under MCR 6.508(D)’” – had “failed to ‘meet the burden of establishing entitlement to though “brief” – constituted the last explained state court relief under MCR 6.508(D)’” was an adequate and judgment in the case). independent state procedural rule that “prevents federal review”); Burroughs v. Makowski, 282 F.3d 410, 414 (6th The district court held that Munson’s habeas claims were Cir. 2002) (holding that “the Michigan Court of Appeals and procedurally defaulted because Rule 6.508(D) constituted an Michigan Supreme Court’s statements that Burroughs was not adequate and independent state ground on which the entitled to relief under M.C.R. 6.508(D) presents a sufficient Michigan Supreme Court relied in foreclosing review of the explanation that their rulings were based on procedural claims. We agree.2 It is well-established in this circuit that default”). Munson argues that Simpson and Burroughs were wrongly decided in light of the Michigan Supreme Court’s decision in Entitlement to R elief. The defendant has the burden of People v. Jackson, 633 N.W.2d 825 (Mich. 2001). He establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion maintains that Jackson establishes that Rule 6.508(D) is not firmly established or regularly followed and, therefore, cannot (1) seeks relief from a judgment of conviction and sentence that constitute an adequate and independent state ground for is still subject to challenge on appeal pursuant to subchapte r purposes of procedural default. Notwithstanding the fact that 7.200 or subchapter 7.300; our analysis of procedural default is governed by our own (2) alleges grounds for relief which were decided against the precedent, not that of the Michigan Supreme Court, Jackson defendant in a prior appeal or proceeding under this chapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision; assistance of appellate counsel claim. Su bsections (1) and (2) of Rule (3) alleges grounds for relief, other than jurisdictional defects, 6.508(D) are inapplicable to Munson’s appeal. Subsection (3) bars which could have been raised on appeal from the conviction and collateral review on grounds that could have been raised on direct ap peal, sentence or in a p rior motion under this subchapter, unless the but were not, absent a showing of cause and preju dice. M unson’s defendant demonstrates ineffective assistance of appellate counsel claim arguably could not have been raised on direct appeal because the appellate attorney would be (a) good cause for failure to raise such gro unds on appeal arguing that he or she was currently providing ineffective assistance of or in the prior motion, and counsel. If the M ichigan Supreme Court could not have been relying upon procedural default to dispose of Munson’s ineffective assistance of (b) actual prejudice from the alleged irregularities that app ellate counsel claim, the district court would not be able to find this supp ort the claim for relief . . . . claim to have been procedurally defaulted. However, the outcome of 2 Munson’s appeal is unaffected. As discussed below, the application of Our agreement is subject to one qualification, however. It is Strickland v. Washington, 466 U.S. 668 (1984), demonstrates that even if possible that the Michigan Supreme Co urt may not have been able to rely Munson did, in fac t, receive ineffective assistance of appellate co unsel, upon Rule 6.508(D ) to deny relief with respect to Munson’s ineffective the result of his appeal would have b een no different. No. 03-1563 Munson v. Kapture 9 10 Munson v. Kapture No. 03-1563

does not stand for the proposition advanced by Munson. The We agree. Even if the physical evidence seized in the portion of Jackson on which he relies merely explains and apartment had been suppressed, there was abundant additional interprets this Court’s decision in Rogers v. Howes, 144 F.3d evidence adduced at trial indicating Munson’s guilt. For 990 (6th Cir. 1998), in which we held that Rule 6.508(D) was example, both victims positively identified Munson as the not regularly applied at the time of the defendant’s perpetrator at trial and in separate lineups, Munson’s former conviction, given that the rule had not, in fact, been enacted girlfriend testified about Munson’s injuries and his gifts to her yet. The Jackson court upheld the retroactive application of shortly after the crime was committed, and the pager left at Rule 6.508(D) to the defendant in that case, holding that our the scene of the crime was traced to Munson. In light of this decision in Rogers, which involved only federal court evidence, Munson cannot prove that there is a reasonable procedural default principles, did not restrict the Michigan probability that but for his counsels’ alleged errors, the courts’ ability to apply the rule. outcome of his trial or appeal would have been different. Therefore, the district court correctly held that Munson’s Having determined that Munson’s habeas claims have been claims of ineffective assistance of trial and appellate counsel procedurally defaulted, we must next consider whether he has lack merit and that Munson cannot rely upon either type of established the requisite “cause” and “prejudice” to permit alleged ineffectiveness as cause to excuse the procedural our consideration of the merits of his claims. See Simpson, default of his habeas claims. 238 F.3d at 407 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Munson argues that the cause for his procedural AFFIRMED. default was the constitutionally ineffective assistance rendered by his trial and appellate counsel; he argues that his trial counsel was ineffective for failing to challenge the admissibility of the physical evidence seized in the apartment and that his appellate counsel was ineffective for failing to raise on direct appeal the issue of trial counsel’s ineffectiveness. In general, constitutionally ineffective assistance of counsel can constitute cause for procedural default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). In this case, however, Munson’s counsel rendered no such ineffective assistance. Munson’s ineffective assistance claims are governed by the familiar standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), which requires him to prove both that his counsel’s representation “fell below an objective standard of reasonableness,” id. at 688, and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694. The district court found that even if Munson satisfied the first prong of Strickland, he failed to satisfy the second.