Nathan Westberg v. Carmen Palmer , 489 F. App'x 883 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0794n.06
No. 10-1285 FILED
UNITED STATES COURT OF APPEALS
Jul 23, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
NATHAN PAUL WESTBERG, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
CARMEN PALMER, Warden, )
) OPINION
Respondent-Appellee. )
BEFORE: COLE and McKEAGUE, Circuit Judges; and ZATKOFF, District Judge.*
ZATKOFF, District Judge. Petitioner Nathan Westberg appeals the United States District
Court of the Western District of Michigan’s (“District Court”) denial of his petition for writ of
habeas corpus. Westberg raises two issues on appeal: (1) whether the prosecutor’s reference to
Westberg’s post-Miranda silence at trial violated Doyle v. Ohio, 426 U.S. 610 (1976); and
(2) whether the sentencing of Westberg violated Blakely v. Washington, 542 U.S. 296 (2004).
I.
A. FACTUAL BACKGROUND
In May 2003, Westberg was found guilty by a jury for armed robbery, breaking and entering
a building with intent to commit larceny, and conspiracy to commit breaking and entering. He was
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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sentenced to concurrent prison terms of 15 to 40 years on the armed robbery count, 6 to 10 years on
the breaking and entering count, and 6 to 10 years on the conspiracy count. Westberg’s conviction
and sentence arose from his involvement in breaking and entering into a building on Grand Valley
State University’s campus (“GVSU”) on Monday morning, August 26, 2002, stealing approximately
$450 and hitting Michael Jenkins. Jenkins, a computer operator at GVSU, testified that while
working in the early morning hours on August 26, 2002, he heard glass break around 4:00 a.m.
Upon further investigation, he encountered two intruders wearing masks. Jenkins was hit by one
intruder with a flashlight and hit by a second intruder with a crowbar. He was unable to identify the
intruders but believed them to be two caucasian college-aged males.
Roger Williams, Joshua Powell, and Ernesto Soto—three individuals who were also involved
in the planning or commission of the robbery—testified before the jury.
Williams testified on behalf of the prosecution in exchange for a promise that he would not
be charged as an accessory to robbery. Williams testified that he planned the robbery at GVSU
based on his knowledge that large sums of money were kept in the telephone office where his fiancée
had worked. He discussed the plan with Powell and Westberg. According to Williams, however,
in late June or early July he told Powell that he was no longer participating. Williams testified that
he never discussed the robbery again until he received two phone calls from Powell on August
26, 2002. Powell asked Williams to meet him at a Big Boy near GVSU; Williams agreed. While
Williams and Westberg were in the Big Boy, Westberg told Williams that he and Powell had broken
a window to enter the building at GVSU, and he had hit a man once inside. Westberg also told
Williams that they stole about $500. Powell asked Williams to discard a bundle of clothes and a pair
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of boots. Williams took the bundle of clothes, which contained a flashlight, and threw it out of a
second floor window of a building into an overgrown area. Williams later put the boots out for the
garbage collector.
After Williams was interviewed by the police, Officer Brandon DeHaan was able to recover
the clothes and the flashlight. Officer DeHaan retrieved two pairs of pants, two sets of gloves and
two masks. In the pockets of one of the pair of pants, Officer DeHaan located a bus pass holder with
the phone number 394-1000, a bus pass dated January 2 through May 31, 2001, and a glass cutter.
The back of the bus pass contained Westberg’s name and signature. The second pair of pants
contained nothing.
Based on Powell’s involvement in the robbery, he pleaded guilty to armed robbery and
breaking and entering. In pleading guilty, a conspiracy charged was dropped. While there was no
agreement for Powell to plead guilty to these charges in exchange for his testimony, the prosecutor
expressed interest in assisting Powell’s counsel regarding an appeal of his sentencing guideline.
According to Powell’s testimony at trial, he and Westberg decided to go ahead with the plan even
though Williams had backed out. Powell testified that they purchased walkie-talkies, a police
scanner, a book on the radio frequencies used by police dispatch, masks, and a glass cutter.
Westberg and Powell then drove to Chicago, Illinois, on Saturday, August 24, 2002.
Powell further testified that, after picking up Westberg’s friend, ErnestoSoto, all three drove
back to Michigan to break into GVSU and steal money from an office. According to Powell, Soto
acted as a lookout during the robbery, while Powell and Westberg broke into GVSU and stole
money. Once inside, they struggled with Jenkins. Eventually, Powell located the money, and Powell
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and Westberg left the building and hid in a ravine for several hours. Powell provided similar
testimony to that of Williams regarding the meeting with Williams at Big Boy and the request to
dispose of some clothes they used during the robbery. Powell turned himself in on September
4, 2002.
Soto testified at trial that he assisted Westberg and Powell in carrying out the robbery. In
exchange for his testimony, Soto pleaded guilty to breaking and entering, as opposed to conspiracy
to commit breaking and entering. While driving from Chicago to GVSU, Soto was given a police
scanner and a two-way walkie-talkie. Soto was told to use the police scanner and walkie-talkie to
notify Westberg and Powell if any radio transmissions concerned a crime occurring at GVSU. Soto
testified that Westberg and Powell put on masks and gloves and placed a flashlight in a green
backpack, which Westberg took with him. Eventually, Soto was apprehended by the police in some
brush. Following his arrest, Soto was interviewed by Detective John Lyman. Soto admitted to being
involved in the robbery and provided the names of Powell and Westberg.
Amanda Souder also testified for the prosecution. She had met Powell through Williams.
She testified that on Friday, August 23, 2002, she went shopping with Powell and Westberg. While
shopping, Westberg bought walkie-talkies, masks for paint ball, and a glass cutter. During the
purchase of the masks, Westberg tried on one of the masks in the store. The following day, Souder
testified that she and Powell went to Radio Shack and purchased a book on police frequencies.
The prosecutor also presented DNA evidence received from the two masks. As to one of the
masks, DNA results were inconclusive. As to the second mask, major and minor DNA profiles were
found. The major DNA profile implicated Powell, and the minor DNA profile implicated Westberg.
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Finally, Officer Richard Horwood of the City of East Lansing Police Department testified that he
arrested Westberg on August 28, 2002, in East Lansing.
After the prosecution rested, the defense called Westberg and Damon Lee, a friend of
Westberg since childhood. Lee testified that Westberg and he were in Chicago at Lee’s house during
the time of the robbery. Lee testified that Westberg and a man named “Josh” (referring to Powell)
came to his house for Harvest Festival on the Sunday night before Lee started school. All three
drank alcohol with other friends of Lee. According to Lee, “Josh” left around 1:00 a.m. on Monday
morning and did not return until shortly before 12:00 p.m. Westberg and Powell then left Lee’s
house.
Westberg denied being involved in the robbery at GVSU on August 26, 2002. Corroborating
Lee’s testimony, Westberg testified that on the weekend of the robbery, he and Powell drove to
Chicago. Once in Chicago, Westberg and Powell went to Lee’s house. He remained at Lee’s house
on Sunday night. According to Westberg, Powell left Lee’s house around 12:00 a.m. on Monday,
August 26, 2002, without Westberg and then returned later that day around 12:00 p.m. Westberg
and Powell then returned to Michigan together. Westberg stated that during the drive back to
Michigan, Powell never mentioned being involved in a robbery at GVSU. As to the items that
Westberg and Powell purchased, Westberg testified that he purchased the mask and walkie-talkies
for paint ball, the police scanner for hearing whether the police would arrive to break up their parties,
and the glass cutter to replace a window in his car. Westberg denied that the glass cutter presented
at trial was the one he bought.
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During the cross-examination of Westberg, the prosecutor made reference to the fact that
Westberg only recently mentioned his alibi defense (purportedly two to three weeks before trial) that
he was with Lee in Chicago at the time the robbery occurred at GVSU, even though Westberg had
been in jail since his arrest awaiting trial. Westberg’s defense counsel objected to the line of
questioning based on attorney-client privilege. The prosecutor also referenced the recent timing of
Westberg’s alibi defense in his closing arguments and rebuttal to closing arguments.
B. PROCEDURAL BACKGROUND
Westberg appealed his conviction and sentence, which was denied by the Michigan Court
of Appeals and the Michigan Supreme Court. People v. Westberg, No. 250334, 2005 WL 77103(Mich. Ct. App. Jan. 13, 2005) (unpublished); People v. Westberg, 705 N.W. 2d 133 (Mich. 2005)
(table opinion). Following Westberg’s state-court appeals, Westberg filed a petition for writ of
habeas corpus with the District Court. He presented to the District Court the two issues now before
us. The District Court denied Westberg’s petition, finding that the prosecutor’s Doyle errors were
harmless and that Blakely was not applicable to Michigan’s indeterminate sentencing scheme.
Westberg v. Palmer, No. 1:07-CV-82, 2010 WL 432271, at *1, 29 (W.D. Mich. Jan. 27, 2010).
Westberg appeals the denial of his habeas corpus petition.
II.
In a habeas corpus appeal, we review the District Court’s legal conclusions de novo and its
factual findings for clear error. Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008). The state-courts’
determinations, however, are reviewed under the standard set forth in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). AEDPA provides that a federal court may not grant a writ
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of habeas corpus to a petitioner on any claim adjudicated on the merits in state court unless the state
court’s decision “was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “[A] federal constitutional claim reviewed by a state court for
‘plain error’ can be considered ‘adjudicated on the merits’ for the purpose of receiving deference
under AEDPA.” Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009).
A decision of a state court is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state-court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal court may not “issue the writ simply
because that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 411. “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862
(2010) (internal citations omitted). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
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III.
A. DOYLE ERROR
1. Procedural Default
Respondent contends that Westberg’s Doyle claim is procedurally defaulted because
Westberg’s trial counsel failed to object at trial, and Westberg cannot show the necessary cause and
prejudice to excuse the procedural default. In response, Westberg argues that his claim is excused
from being procedurally defaulted due to the ineffective assistance of counsel at trial.
We need not consider whether Westberg’s claims are procedurally defaulted before turning
to the merits of his claims. See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix
v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving the [other] question
priority, . . . if it were easily resolvable against the habeas petitioner, whereas the procedural-bar
issue involved complicated issues of state law.”)); cf. 28 U.S.C. § 2254(b)(2) (stating that a writ of
habeas corpus may be denied on the merits, notwithstanding the petitioner’s failure to exhaust all
state-court remedies). Because the procedural default analysis adds unnecessary complexity to our
analysis, we proceed to the merits of this appeal. See Babick v. Berghuis, 620 F.3d 571, 576
(6th Cir. 2010).
2. Harmless Error
Westberg argues that the prosecution violated his due process rights as set forth in Doyle.1
In Doyle, the Supreme Court explained that “it would be fundamentally unfair and a deprivation of
1
In reviewing the record, it is unclear from the testimony when Westberg was advised of his
Miranda rights. Even so, neither Westberg nor Respondent contests this fact on appeal, and thus for
purposes of our analysis of Westberg’s Doyle claim, we assume that Westberg received his Miranda
rights at the time of arrest as Westberg states in his petition.
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due process to allow the arrested person’s silence to be used to impeach an explanation subsequently
offered at trial.” Doyle, 426 U.S. at 618. The Supreme Court held that the “use for impeachment
purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated
the Due Process Clause of the Fourteenth Amendment.” Id. at 619; see Wainwright v. Greenfield,
474 U.S. 284, 291 (1986) (explaining that Doyle prohibits a prosecutor from using a criminal
defendant’s silence, maintained after receipt of Miranda warnings, to impeach that defendant). In
subsequent decisions, the Supreme Court reinforced Doyle, making it clear that a prosecutor’s
reference at trial to a defendant’s silence during the time between receiving his Miranda warnings
and going to trial violated Doyle. See Wainright, 474 U.S. at 291; Greer v. Miller, 483 U.S. 756, 762
(1987); Brecht v. Abrahamson, 507 U.S. 619, 628-29 (1993).
The Michigan Court of Appeals, applying plain error review, found that the prosecutor’s
references to Westberg’s post-Miranda silence “constituted fair comments on the evidence
presented” and, because Westberg testified at trial, did not violate his Fifth Amendment right against
self-incrimination.2 Westberg, 2005 WL 77103, at *3. The District Court determined that the
Michigan Court of Appeals failed to apply the applicable Supreme Court precedent and found its
conclusion contrary to Doyle. Instead, the District Court found that the prosecutor’s references to
Westberg’s silence violated Doyle. Examining the trial record, the District Court then decided
whether the prosecutor’s violation of Doyle was harmless error. See Brecht, 507 U.S. at 629, 637.
2
Westberg does not raise a violation of his Fifth Amendment right against self-incrimination
in his initial brief, and thus the issue is waived on appeal. Guilmette v. Howes, 624 F.3d 286, 292
(6th Cir. 2010) (en banc).
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Denying Westberg habeas relief, the District Court concluded that the evidence against him was so
strong that the Doyle violations were harmless.
Assuming Doyle error occurred, we review the record de novo and consider whether the error
was harmless. The harmless error standard focuses on whether the error had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. “Under this
standard, habeas petitioners . . . are not entitled to habeas relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’” Id. The weight of the evidence presented at trial
showing the defendant’s guilt and the number of references made by the prosecutor regarding the
defendant’s post-Miranda silence are relevant. Id. at 639.
In light of the overwhelming evidence of guilt, we find that the prosecutor’s reference to
Westberg’s post-Miranda silence had no “substantial and injurious effect or influence in determining
the jury’s verdict.” While Westberg is right to point out that his three accomplices were all provided
some benefit in exchange for their testimonies, there is no evidence to show, or even suggest, that
they fabricated their testimonies. The testimonies of Williams, Soto, and Powell were consistent
with one another. Their testimonies established that Westberg had carried out the robbery at GVSU
with Powell and Soto, and Westberg had hit Jenkins. Their testimonies were further supported by
the physical evidence and the testimonies of the other prosecution witnesses presented at trial.
Williams testified that Powell had asked him to dispose of clothes that Powell and Westberg
used during the robbery. This was corroborated by Powell’s testimony and Officer DeHaan’s
discovery of the clothing in the location where Williams testified he had disposed of them. The
clothing included a pair of pants linking Westberg to the crimes, further substantiating Westberg’s
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involvement in the robbery. Officer DeHaan found a bus pass holder with the phone number
394-1000, a bus pass dated January 2 through May 31, 2001, and a glass cutter in the pair of pants.
The back of the bus pass contained Westberg’s name and signature.
While disputing that the glass cutter produced at trial was his, Westberg admitted to being
involved in the purchase of the instruments used in committing the crimes. Powell also testified that
he and Westberg had purchased the walkie-talkies, the police scanner, a book on the radio
frequencies used by police dispatch, two masks, and a glass cutter. The purchase of these items was
corroborated further by Souder, who was with Powell and Westberg when the items were purchased.
The police scanner and a walkie-talkie were found by the police after arresting Soto, who testified
that he used them during the robbery at GVSU to inform Westberg and Powell of any relevant
information. The jury also heard Soto testify that Westberg and Powell put on the masks before
breaking into GVSU. Officer DeHaan testified to the jury that he recovered the two masks in the
clothes Williams disposed. DNA analysis presented to the jury showed that there was DNA on one
of the masks that was related to a DNA sample taken from Westberg.
When Westberg was arrested, the police seized his backpack as evidence. In the backpack,
Detective Lyman recovered a receipt that identified by serial number the police scanner that was
recovered after Soto’s arrest. Even Westberg testified that the pair of pants presented into evidence
were similar to pants he owned. Westberg also identified the backpack, the police scanner, the
walkie-talkies and the bus pass.
The only testimony presented to the jury that contradicts the prosecution’s evidence was that
of Lee and Westberg. For good reasons, however, their testimony was not as strong as Westberg
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contends. Lee’s testimony supported Westberg’s alibi defense that he was not near GVSU during
the commission of the robbery. However, the reliability of his testimony was questionable. Lee
testified that Westberg came to his house the weekend of the robbery to party for the Harvest
Festival. But, as Officer DeHaan testified, the Harvest Festival occurred the following weekend,
from August 30 to September 1. The jury also heard Lee testify that he had consumed marijuana and
alcohol on the Sunday he was with Westberg.
Westberg’s testimony was suspect as well. Westberg’s testimony permitted the jury to infer
that Powell and Soto committed the robbery without Westberg while Powell was absent from Lee’s
house. According to Westberg, Powell left Lee’s house around 12:00 a.m. on Monday, August
26, 2002, without Westberg, and then returned later that day around 12:00 p.m. Westberg’s
testimony created the inference that, during this 12 hour period, Powell was able to pick up Soto,
drive from Lee’s house (located in Hanover Park, a Northwest suburb of Chicago) to GVSU’s
campus in Grand Rapids, steal approximately $450, and then return to Lee’s house to pick up
Westberg. Westberg’s testimony, however, is difficult for a jury to accept as true given the fact that
Jenkins heard glass break in the building at GVSU around 4:00 a.m., and dispatch responded to the
building because of 911 calls around 4:30 a.m. From the time Powell left Lee’s house, Powell would
have had only three hours to arrive at GVSU by approximately 4:00 a.m. when the robbery occurred.3
Furthermore, Powell and Westberg were close friends that lived together in East Lansing.
During the weekend of the crime at GVSU, they made the round-trip from East Lansing to Lee’s
3
Because of the difference in time zones between Chicago and Grand Rapids, Westberg’s
testimony that Powell left Lee’s house at 12:00 a.m. in Chicago is the same as 1:00 a.m. in Grand
Rapids. Likewise, the fact that Jenkins testified to hearing glass break around 4:00 a.m. in the
building at GVSU is the equivalent of 3:00 a.m. in Chicago.
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house together. Their return trip would have occurred shortly after Powell had committed the
robbery at GVSU. Yet, according to Westberg’s testimony, at no point during the weekend,
including the return trip, did Powell mention to Westberg that he intended to steal money from
GVSU or was involved in any incident at GVSU.
Moreover, Westberg testified that he and Powell left for Chicago on Friday night, yet the
evidence indicated that Powell had purchased the book on police radio frequencies in East Lansing
the following day. When the prosecutor asked Westberg how Powell was able to purchase the book
in East Lansing on Saturday if Westberg and Powell had left on Friday night, Westberg stated that
he may have been mistaken. Due to the inconsistencies of Lee’s and Westberg’s testimonies and the
improbability that Powell committed the robbery while Westberg stayed at Lee’s house, we cannot
find that the prosecutor’s comments on Westberg’s failure to come forward with his alibi earlier had
a “substantial and injurious effect or influence in determining the jury’s verdict.” In light of the
overwhelming evidence of guilt presented at trial, we conclude—as the District Court did—that the
prosecutor’s errors were harmless.
B. SENTENCING VIOLATION
Alternatively, Westberg contends that the Michigan trial judge violated Westberg’s Sixth
Amendment right to a jury, as explained in Blakely, by enhancing his minimum sentence under
Michigan’s indeterminate sentencing scheme based on facts not determined by the jury or admitted
to by Westberg. Westberg, however, concedes the lack of merit in his claim based on this Circuit’s
holdings in Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009), and Montes v. Trombley,
599 F.3d 490, 497 (6th Cir. 2010). For the same reasons discussed in Chontos and Montes, the
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Michigan Court of Appeals’ finding that Blakely does not apply to Michigan’s indeterminate
sentencing scheme was not “contrary to” or an “unreasonable application of” Supreme Court
precedent. See Chontos, 585 F.3d at 1001–02 (concluding that Blakely was inapplicable to a
Michigan trial judge’s factfinding that established the defendant’s minimum sentence under
Michigan’s sentencing guidelines); Montes, 599 F.3d at 495 (stating that Blakely “is limited by its
own terms to judicial factfinding that increases the penalty beyond the maximum permitted by the
relevant statute.”). Accordingly, we deny Westberg’s claim for relief under the Sixth Amendment.
IV.
Accordingly, the District Court’s decision is AFFIRMED.
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