No. 09-357

Supreme Court of the Unite~ States

BRENT SMITH,Petitioner,

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KURT JONES,Respondent.

ON PETITION FOR WRIT OF CERTIORARI TOTHE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Michael A. CoxAttorney General

B. Eric RestucciaMichigan Solicitor GeneralCounsel of RecordP. O. Box 30212Lansing, Michigan 48909(517) 373-1124

John S. PallasSpecial Assistant Attorney GeneralAppellate ChiefOakland County Prosecutor’s Office

Attorneys for Respondent

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II.

QUESTIONS PRESENTED FOR REVIEW

Where a State Court has reviewed the meritsof a petitioner’s federal claim for plain error, isthe decision of the Sixth Circuit in a habeascorpus action that there was proceduraldefault of that claim contrary to the decisionsof this Court.

Whether the decision of the Sixth Circuitconflicts with the decisions of other circuitsthat hold a state court’s plain-error review of afederal claim is not a procedural default.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....................i

TABLE OF CONTENTS .....................................................ii

TABLE OF AUTHORITIES ..............................................iii

JURISDICTION ....................................................................1

CONSTITUTIONAL AND STATUTORYPROVISIONS ..................................................................2

COUNTER STATEMENT OF THE CASE .....................

REASONS FOR DENYING THE PETITION ................7

I. Petitioner’s cited authorities do not supportthat this Court has already concluded thatplain-error review means that the State haswaived the procedural default so that thefederal habeas court can itself review thefederal claim on its merits ...........................................8

II. This habeas action is not the proper vehicle toresolve any possible conflict between thefederal circuits concerning the application ofplain-error review and its effect on proceduraldefault on federal habeas review .............................13

CONCLUSION ....................................................................19

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TABLE OF AUTHORITIES

Cases

Beard v. Kindler,558 U.S. __ 2009 U.S. LEXIS 8944 (2009) ...........9

Engle v. Isaac,456 U.S. 107 (1982) .........................................11, 12

Lynch488127

V Ficco,

F.3d 35 (1st Cir. 2006), cert. deniedS.Ct. 198, 166 L.Ed.2d 161 (2006) .................13

Mullaney v. Wilbur,421 U.S. 684 (1975) .........................................11, 12

People v. Unger,749 N.W.2d 272 (Mich. 2008) ................................10

Rodriguez v. McAdory,318 F.3d 733 (7th Cir. 2003) .................................13

Scott v. Mitchell,209 F.3d 854 (6th Cir. 2000) .................................13

Stewart v. Smith,536 U.S. 856 (2002) ...............................................16

Ulster County Court, New York v. Allen,442 U.S. 140 (1979) .........................................11, 12

Walker v. Endell,850 F.2d 470 (9th Cir. 1987) .................................13

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Cases (continued)

Willis v. Smith,351 F.3d 741 (6th Cir. 2003) .................................15

Statutes

28 U.S.C. § 2254 ..........................................................1

28 U.S.C. § 2254 (e)(1) ................................................2

28 U.S.C. § 2254(d)(1) .................................................2

JURISDICTION

Petitioner, a person in state custody,commenced this action in the United States DistrictCourt for the Eastern District of Michigan, pursuantto 28 U.S.C. § 2254, by filing a petition for writ ofhabeas corpus on July 29, 2005. The district courtissued an opinion and order that conditionallygranted the petition for writ of habeas corpus onSeptember 25, 2007. Pet. App. 27a. Respondent fileda notice of appeal on October 9, 2007 in the districtcourt. On April 10, 2009, a panel of the Sixth CircuitCourt of Appeals reversed the district court’s grant ofthe habeas petition in an unpublished opinionauthored by Judge Cook and joined by Judge MerrittoPet. App. la. Judge Cole issued a concurring opinionPet. App. 15a. Petitioner filed a petition forrehearing and rehearing en banc. In an order datedJune 26, 2009, the Sixth Circuit denied the petitionfor rehearing en banc as no judge of the Courtrequested a vote on the petition and the originalpanel denied the petition for rehearing. Pet. App.65a.

Petitioner subsequently filed a petition for awrit of certiorari in this Court. This Court hasrequested that Respondent file a brief in oppositionto the petition. This Court has jurisdiction todetermine the issues raised in the petition pursuantto 28 U.S.C. § 2254.

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CONSTITUTIONAL AND STATUTORYPROVISIONS

28 U.S.C. § 2254(d)(1) provides:

(d) An application for a writ of habeas corpuson behalf of a person in custody pursuant tothe judgment of a State court shall not begranted with respect to any claim that wasadjudicated on the merits in State courtproceedings unless the adjudication of theclaim

(1) resulted in a decision that wascontrary to, or involved an unreasonableapplication of, clearly established Federallaw, as determined by the Supreme Court ofthe United States.

28 U.S.C. § 2254 (e)(1) provides:

In a proceeding initiated by an applicationfor a writ of habeas corpus by a person incustody pursuant to judgment of the Statecourt, a determination of a factual issuemade by a State court shall be presumed tobe correct. The applicant shall have theburden of rebutting the presumption ofcorrectness by clear and convincing evidence.

COUNTER STATEMENT OF THE CASE

Brent Smith, hereinafter referred to asPetitioner, was charged with three counts of criminalsexual conduct as a result of his sexual molestationof women he came into contact with during his dutiesas a police officer for the City of Berkley in the Stateof Michigan. Petitioner was convicted as chargedfollowing a jury trial before a trial judge of theOakland County Circuit Court in the State ofMichigan. The trial court sentenced Petitioner inNovember of 2001 to three concurrent terms of fourto fifteen years’ incarceration.

The Michigan Court of Appeals accurately andsuccinctly summarized the underlying trial facts ofthis case as follows:

Defendant was a police officer with theCity of Berkley from June 1997 untilapproximately 2001. The instant chargesarose from events in the early morninghours of December 23, 2000, whendefendant, who worked the midnightshift, was on duty and patrolling. Thecomplainant, 19 year-old ShannonSargent, testified that at around 1:30a.m. that morning, defendant approachedthe vehicle in which she and herboyfriend were "making out," which wasparked behind a bar in Berkley. Sargentshowed defendant a driver’s license thatwas not her own, belonging to a womanwho was of legal drinking age. Sargenttestified that defendant asked her to stepout of the car and get in the police car,

asked if he could search her and did so,and later asked if he could do a secondsearch while she was seated in the backseat of the patrol car, during which he felther breast, inner thighs, vaginal area,and buttocks, while his hand wasunderneath her clothes. She testified shewas crying and hysterical. Her boyfriendat the time, Peter Marinelli, corroboratedthat testimony, and said she had told himthat defendant had put his finger insideher. Defendant drove Marinelli andSargent to the local Denny’s and droppedthem off. The manager of Denny’stestified that he saw Marinelli andSargent and that Sargent was crying andupset. Sargent’s mother and Sargenttestified to the adverse effects and mentalanguish the incident caused Sargent,including her seeking therapy, hersubsequent inability to drive more thanshort distances and her fear of policeofficers.

The trial court permitted the prosecutionto present similar acts evidence throughtwo witnesses, Kristin Oliver and CorinneSteinbrenner, both of whom testified thatdefendant had inappropriately touchedthem during searches following trafficstops in 1998. Oliver, a 33 year old,testified defendant stopped her after sherolled through several Michigan turns,around 2:30 a.m. on May 3, 1998. Shefailed a field sobriety test. Defendantpatted her down before placing her in the

police car and taking her to the station.At the station, defendant told her he hadto search her again and put his handsinside her bra and tried to search insideher pants. He observed her go to thebathroom through a window and said hehad to search her again, moving his handup her inner thigh, cupping her vagina,and then moving down the other thigh.Oliver pleaded guilty of driving whileimpaired. In May 2001, she brought afederal suit against the Berkley policedepartment arising out of the May 1998incident.

Corrinne Steinbrenner testified that onJune 21, 1998, when she was 16 yearsold, defendant pulled her over at around1:30 a.m. while she was driving a friend’scar, without a license. She lied todefendant about having a license.Defendant searched her, then searchedher friend and sent him home in his car.After that, he searched her again, gropingher chest over her clothing. Defendanttook her to the police station, underarrest. Several days later, she told hermother about the incident, and the twofiled a complaint against defendant at thestation.Defense counsel vigorously cross-examined and impeached both of thesimilar acts witnesses.

The defense’s theory was that defendantcommitted no wrongdoing. Defendant

adamantly denied conducting a secondsearch of Sargent, and maintainedthroughout trial that his investigationand search of Sargent were "routine" andpermissible in scope. Defense counselargued that the complainant and thesimilar acts witnesses were not credible,that there was no system, scheme or planon his part, and that his intent was not inissue because he denied committing theacts charged.

The jury convicted defendant as charged.The trial court denied defendant’smotions for new trial and for directedverdict of acquittal. [Pet. App. 68a-70a.]

Petitioner filed a direct appeal to the MichiganCourt of Appeals. The Michigan Court of Appealsaffirmed Petitioner’s conviction in an unpublishedopinion dated October 7, 2003. (Appendix 67a.)Petitioner then filed an application for leave toappeal in the Michigan Supreme Court. TheMichigan Supreme Court denied the application inorder dated August 31, 2001.

This federal habeas action and the appealfollowed.

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REASONS FOR DENYING THE PETITION

Petitioner claims that the state appeals courtfully considered the merits of his federal claim whenit reviewed his claim of prosecutorial misconduct forplain error. As such, he asserts that the SixthCircuit’s determination that the claim has beenprocedurally defaulted for purposes of federal habeasreview was contrary to decisions of this Court andconflicts with decisions of other federal circuits.

There is no conflict between the Sixth Circuit’sdecision in this case and opinions of this Court. Inprior opinions, this Court has not determined thatplain-error review, especially where that reviewincludes something less than full review of themerits of the federal claim, results in the statewaiving the procedural default for purposes offederal habeas review.

Further, this case does not present a goodvehicle to resolve any conflicts among the federalcircuits on the question of whether a State court’splain-error review that considers the underlyingmerits of the claim constitutes procedural default ina federal habeas corpus action. This is because, inthis action, the Michigan Court of Appeals did notfully address the merits of the claims at issue. Thus,this case would not assist this Court in resolving thisissue raised by Petitioner.

This Court should deny the petition.

Petitioner’s cited authorities do notsupport that this Court has alreadyconcluded that plain-error review meansthat the State has waived the proceduraldefault so that the federal habeas courtcan itself review the federal claim on itsmerits.

The Michigan Court of Appeals rejectedPetitioner’s claims of prosecutorial misconduct thatoccurred during closing statements to the jurybecause his attorney had failed to object to the citedcomments. It did so by finding that no plain errorhad occurred that affected Petitioner’s substantialrights. While the Michigan Court briefly discussedsome of these claims, it did not fully reach the meritson others (not even discussing the substance of someof the claims), thereby clearly enforcing theprocedural default rule in ultimately rejecting theclaims.

Petitioner argues, citing to the district courtopinion, that the Michigan appeals court "addressedeach issue of prosecutorial misconduct" andconcluded that "they were without merit"; and thatthe State appeals court thus had in fact not enforcedthe procedural sanction, but had reviewed the claimson their merits, which is contrary to a number of thisCourt’s opinions. Pet. Brief, 15a. Petitioner arguesthat this is an appropriate case by which this Courtcan resolve the question of whether plain-errorreview constitutes a review on the merits such that astate procedural bar forecloses federal review,thereby resolving the split among the federal circuitsthat has arisen on this question.

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There are some significant flaws inPetitioner’s logic, just as there were in the federaldistrict court’s reasoning concerning the Stateappeals court’s review of this matter. It is these flawsthat prevent this case from being the vehicle bywhich this Court could resolve the question ofwhether plain-error review constitutes a review onthe merits for purposes of federal habeas corpusprocedural default analysis.

As this Court very recently noted in this Courtin Beard v. Kindler,1 federal habeas courts havelimited review powers concerning issues that havebeen rejected by the state courts:

A federal habeas court will not review aclaim rejected by a state court "if thedecision of [the state] court rests on astate law ground that is independent ofthe federal question and adequate tosupport the judgment." Colemanv.Thompson, 501 U.S. 722, 729 (1991).

One of the ways that state appellate courtshave addressed claims by defendants is by findingthat, where the defendant fails to object at trial orotherwise preserve a claim at the trial court level,the defendant must show "plain error" to meritfurther consideration of his claim.

The Michigan Court of Appeals has describedplain-error review in the context of review of claims

Beard v. Kindler, 558 U.S. __ 2009 U.S. LEXIS 8944, *4(2009), slip. op. at 1

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of prosecutorial misconduct (the claims at issue herein this action) as follows:

Review of alleged prosecutorialmisconduct is precluded unless thedefendant timely and specifically objects,except when an objection could not havecured the error, or a failure to review theissue would result in a miscarriage ofjustice." Because the challengedprosecutorial statements in this casewere not preserved by contemporaneousobjections and requests for curativeinstructions, appellate review is foroutcome-determinative plain error."Reversal is warranted only when plainerror resulted in the conviction of anactually innocent defendant or seriouslyaffected the fairness, integrity, or publicreputation of judicial proceedings.""Further, we cannot find error requiringreversal where a curative instructioncould have alleviated any prejudicialeffect." Curative instructions aresufficient to cure the prejudicial effect ofmost inappropriate prosecutorialstatements ..... [A]nd jurors arepresumed to follow their instructions[.] 2

Thus, under Michigan law, plain-error review is notjust concerned with the merits of a claim. The meritsmay or may not be significant at all. Rather, theimpact of that potential error - in terms of

~ People v. Unger, 749 N.W.2d 272 (Mich. 2008)(citationsomitted).

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prejudicial effect - not only the trial but also on howthe fairness, integrity, and public integrity of judicialproceedings are viewed because of the purportederror. To equate this with review on the merits is aserious misunderstanding of the concept of plain-error review.

Although Petitioner claims that this Court hasalready noted that "where a state court recognizesthat there was no objection to an error at trial, butgoes on to consider the merits of the claim pursuantto a plain-error standard of review, that reviewshould be considered a review on the merits and nota procedural default," Petitioner’s brief, p. 12, anexamination of the authorities he cites for thisproposition reveal that he is overstating thelanguage of those authorities.

Petitioner cites footnote 44 of this Court’s 1982opinion in Engle v. Isaac.3 That footnote in turnreferences two prior opinions of this Court, Mullaneyv. Wilbur,4 and Ulster County Court v. Allen.5 Theseopinions do not indicate that plain-error reviewconstitutes review on the merits. Rather, bothEngle’s footnote 44 and the two prior opinionsinvolve state courts explicitly deciding not to applythe procedural default at all.

As to Engle, the footnote indicates that "[i]fOhio had exercised its discretion to considerrespondents’ claim, then their initial default would

Engle v. Isaac, 456 U.S. 107, 135 (1982).Mullaney v. Wilbur, 421 U.S. 684, 688 n. 7 (1975).Ulster County Court, New York v. Allen, 442 U.S. 140, 147-154

(1979).

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no longer block federal review.’’~ A review of theremaining portion of the footnote, as well as theauthorities cited further defines the point. Where aState court has the option to enforce a proceduraldefault - and does not do so - there is no proceduraldefault.

In Mullaney, this Court noted that"Respondent did not object to the relevantinstructions at trial. The Maine Supreme JudicialCourt nevertheless found the issue cognizable onappeal because it had "constitutional implications’’7

In Ulster County, this Court noted that the NewYork state courts had not relied on a state proceduralground in rejecting the prisoner’s constitutionalclaim not only because of the probable non-existenceof such grounds in New York law, but also becausethe trial court explicitly ruled that there had been noprocedural default and ruled on the merits of theclaim (in a post-conviction motion to set aside theverdict). In this way, the state court of appealsadopted the judgment and reasoning of the trialcourt in rejecting the prisoner’s claim on appeal,s

In short, Petitioner has not shown that theSixth Circuit’s opinion in this case conflicts withopinions of this Court. This Court has notdetermined that plain-error review results in theState waiving the procedural default for purposes offederal habeas review.

Engle, 456 U.S. at 135 n. 44.Mullaney, 421 U.S. at 688 n. 7.Ulster County Court, 442 U.S. at 152-155.

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II. This habeas action is not the propervehicle to resolve any possible conflictbetween the federal circuits concerningthe application of plain-error review andits effect on procedural default on federalhabeas review.

As to Petitioner’s next point, the State ofMichigan acknowledges that at least one circuit haspreviously determined that the application of aplain-error standard that encompasses a meritsreview does not constitute a procedural bar to federalreview.9 In Walker v. Endell, the Ninth Circuitconcluded that the state court, in applying the plain-error standard, had conducted a review on the meritswhich effectively lifted the state’s procedural bar toreview.l° The Sixth Circuit has repeatedly held thatplain-error review does not constitute a waiver ofstate procedural rules.ll Other circuits havesimilarly held that plain-error review does not waiveprocedural default. 12

Without examining the question aboutwhether this represents a true conflict, as athreshold matter, this case does not clearly present

9 See Walker v. Endell, 850 F.2d 470, 474 (9th Cir. 1987).lo Walker, 850 F.2d at 475.11 See Scott v. Mitchell, 209 F.3d 854, 865 (6th Cir. 2000);Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006).12 The Seventh Circuit has stated that a court’s "review forplain-error does not cure a procedural default." Rodriguez v.McAdory, 318 F.3d 733, 735-736 (7th Cir. 2003). The FirstCircuit has concluded that consideration of a "miscarriage ofjustice" exception by a state court in reviewing a procedurallydefaulted claim does not operate as a waiver of the proceduralbar. See e.g., Lynch v Ficco, 488 F.3d 35, 45 (lst Cir. 2006),cert. denied 127 S.Ct. 198, 166 L.Ed.2d 161 (2006).

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the question because: (1) in this case the MichiganCourt of Appeals’ decision only addressed a sub-set ofthe prosecutorial misconduct claims in a way thatcould arguably be considered a merit reviewoccurring within a plain-error application; and (2)Michigan’s plain-error review is clearly differentthan a merits review.

The Michigan Court of Appeals stated that allthe claims of prosecutorial misconduct were beingreviewed for plain error and that "[r]eversal iswarranted only when a plain error resulted in theconviction of an actually innocent defendant orseriously affected the fairness, integrity or publicreputation of judicial proceedings." Pet. App. 85a.This is a much higher standard for reversal than forclaims that have been preserved for appellate review.The analysis by the Michigan Court of Appeals inthis regard was different than a review on the merits- it was in fact a review as to whether Petitioner wasinnocent or whether the purported error would havesome serious effect on the judicial system - not justwhether Petitioner was entitled to a new trial or wasraising a meritorious claim. The Michigan Court ofAppeals’ analysis of the claims in this case reflectsthis heightened standard.

Contrary to Petitioner’s claim, the Stateappeals court did not address each claim ofprosecutorial misconduct and conclude that theywere "without merit." Rather, the State court opinionin this action is a "mixed bag"- a case that onlyprovides this Court with a few claims out of manythat could even be considered "review on the merits."

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In its introductory paragraph to its discussionof the prosecutorial misconduct claims, the MichiganCourt of Appeals started as follows: "We find noreversible error." Pet. App. 84a (emphasis added).This is a different statement than to say "We find noerror," where a full examination of the merits isimplied. The reason such language was used by theMichigan Court of Appeals in this action was becauseit was applying the plain-error standard of review toall the claims of misconduct since defense counselhad failed to raise a contemporaneous objection,which is an established procedural default underMichigan law recognized by the Sixth Circuit. 13 In sodoing, the Michigan Court of Appeals only conducteda cursory examination of the merits of some of theclaims while not even reaching the merits at all inothers.

First, several of the claims were not addressedby the Michigan Court of Appeals at all except to saythat an instruction could have cured any error. Inresponse to a question to a police officer by theprosecutor as to whether a particular pat down by anofficer would be considered a sexual crime, the officerresponded "Absolutely," and the trial courtadmonished the jury. Pet. App. 87-88a. The MichiganCourt of Appeals never addressed the merits of theclaim, but rather just stated that the curativeinstruction given to the jury would have cured anyprejudicial effect.

With regard to other prosecutorial statements,the Michigan Court of Appeals made no rulingsconcerning the merits of the prosecutor’s statements,

See Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003).

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but simply indicated that they were in response towhat defense counsel had stated and that anyprejudicial effect could have been cured "by anappropriate instruction." Pet. App. 85a-86a.

As to the prosecutor’s remark in her closingrebuttal argument about not going after a personwho is not guilty, the Michigan Court of Appeals didnot comment on the validity of such a comment butsimply stated: "[W]e conclude that a timely objectionand resulting instruction could have cured anyprejudicial effect." Pet. App. 85a.

A number of the claims are grouped togetherand were not reviewed on the merits:

The remaining remarks defendantchallenges were unobjected to and wouldnot warrant reversal, including theprosecutor’s references to thecomplainant and similar acts witnesseshaving cried on the stand (which wassupported by the record). [Pet. App. 88a(emphasis added).]

Second, as to the remaining claims ofprosecutorial misconduct, there was not a fullexamination of the merits of those claims. Rather,there was only plain-error review. As this Courtnoted in its opinion in Stewart v. Smith, "if a statecourt’s decision rested primarily on a ruling on themerits .... its decision would not be independent offederal law." 14 This analysis suggests thatsomething less than full review on the merits as part

Stewart v. Smith, 536 U.S. 856, 860 (2002) (emphasis added).

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of plain-error analysis may still be viewed as aprocedural default barring federal review unlessexcused through a showing of cause and prejudice.

Regarding the comment the prosecutor madeat the end of her rebuttal argument that theMichigan Court of Appeals found to be "improper"appeals to civic duty or that she sympathized withthe victim, the analysis was truncated. After notingthat the comments were improper, the MichiganCourt of Appeals merely stated: "We conclude,however, that any prejudicial effect could have beencured by an appropriate instruction.., and we aresatisfied that the jury did not convict based on theimproper argument." Pet. App. 87a.

At one point, the Michigan Court of Appealsdid reject the claim that the prosecutor hadimproperly commented on the Petitioner’s right toremain silent, which indicates an analysis on themerits. Pet. App. 86a. But this statement must beconsidered in the context in which all of Petitioner’sclaims ot~ prosecutorial misconduct were beingreviewed.

In short, this case does not give rise to theclaim that Petitioner seeks to address - whether aState court that employs a full merits analysis inconjunction with its plain-error review subjects itsdecision to review on the merits by the federal courtsin habeas corpus or whether the State court’sapplication of the plain-error standard is theenforcement of the State procedural default. TheMichigan Court of Appeals did not proceed to fullyreview the claim on the merits. There is one or twoinstances where there were cursory merits review

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following an assertion of a default. Nonetheless, thiscase does not clearly present the claim thatPetitioner seeks to advance in his petition forcertiorari.

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CONCLUSION

For the foregoing reasons, the petition forcertiorari should be denied.

Respectfully submitted,

Michael A. CoxAttorney General

B. Eric RestucciaMichigan Solicitor GeneralCounsel of RecordP. O. Box 30212Lansing, Michigan 48909(517) 373-1124

John S. PallasSpecial Assistant Attorney GeneralAppellate ChiefOakland County Prosecutor’s Office

Attorneys for Respondent

Dated: January 2010

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