McBurney v. Rapelje

Filing 11

OPINION AND ORDER denying 4 Motion for Evidentiary Hearing and Expansion of Record; denying 5 Motion to Set Aside and Vacate Judgment ; denying 5 Motion to Vacate ; denying 10 Motion to Appoint Counsel. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN McBURNEY,
Case No. 11-cv-12046
Petitioner,
HONORABLE VICTORIA A. ROBERTS
v.
LLOYD W. RAPELJE,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER'S (1) MOTION
FOR EVIDENTIARY HEARING AND EXPANSION OF RECORD;
(2) MOTION TO SET ASIDE AND VACATE JUDGMENT OF
CONVICTION; AND (3) MOTION TO APPOINT COUNSEL
Petitioner Steven McBurney filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner was convicted of second degree murder and first degree child
abuse, arising from the death of his infant daughter, and was sentenced to 30 to 60 years
imprisonment for the murder conviction, concurrent to 15 to 22 ½ years imprisonment for
the child abuse conviction. Petitioner asserts three claims for habeas relief: that his right to
a fair trial was violated by the prosecution's improper impeachment of his expert witness; that
his rights were violated by the admission of evidence of a previous act of child abuse; and
that his due process rights were violated by the trial court's calculation of his sentences and
its enhancement of his sentences for failure to admit responsibility. Pending before the Court
are three motions filed by Petitioner: a motion for an evidentiary hearing and expansion of
the record; a motion to set aside and vacate the judgment of sentence and conviction; and a
motion to appoint counsel.

I. Motion for Evidentiary Hearing and to Expand Record
At Petitioner's trial, the court entered into evidence medical records relating to another
child of Petitioner's, which records contained a medical diagnosis of shaken baby syndrome.
Petitioner argues that the admission of the medical records violated his federal constitutional
right to confrontation. Petitioner seeks an evidentiary hearing to develop facts regarding the
identity of the author of the medical records and whether the author knew that the records
would be used in later legal proceedings. In the alternative, Petitioner seeks to expand the
record to include affidavits and letters relating to his unsuccessful efforts to obtain
information regarding the medical records.
Petitioner's motion for an evidentiary hearing and to expand the record must be denied
because the state court considered and denied Petitioner's Confrontation Clause claim on the
merits. See People v. McBurney, No. 285485, 2009 WL 2902479, *4-5 (Sept. 10, 2009)
(determining that admission of records did not violate Confrontation Clause). When a state
court adjudicates a claim on the merits, a federal court's review is limited to determining if
that adjudication resulted in a decision that was contrary to or involved an unreasonable
application of clearly established federal law or was based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C.§
2254(d). The United States Supreme Court has held that this provision limits a federal
court's review of claims under section 2254(d)(1) to the record that was before the state court
that adjudicated the claim on the merits, and that evidence obtained in a federal evidentiary
hearing cannot be considered in adjudicating such a claim. See Cullen v. Pinholster, __ U.S.
__, 131 S. Ct. 1388, 1398 (2011). Therefore, “evidence later introduced in federal court is

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irrelevant” to a federal court's review of a state court's merits-based decision. Id. at 1400.
Since this Court must look solely to the record before the state court in determining whether
the Petitioner is entitled to habeas relief, the additional evidence Petitioner seeks to develop
and admit is irrelevant. The Court therefore denies Petitioner's motion for an evidentiary
hearing and expansion of the record.
II. Motion to Vacate and Set Aside Conviction
Petitioner has also filed a motion to set aside and vacate his conviction, arguing that as
set forth in his petition his conviction is unconstitutional. This motion essentially seeks the
relief sought in the petition itself. The Court will address the merits of the petition as
expeditiously as possible, and the Court denies this motion as unnecessary.
III. Motion to Appoint Counsel
Finally, Petitioner filed a motion to appoint counsel. There is no constitutional right to
the appointment of counsel in a habeas proceeding. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) ("[o]ur cases establish that the right to appointed counsel extends to the first
appeal of right, and no further"). Appointment of counsel in a habeas proceeding is
mandatory if the district court determines that an evidentiary hearing is required. See Rule
8(c), Rules Governing Section 2254 Cases in the United States District Courts. Otherwise,
the matter lies within the discretion of the court. Mira v. Marshall, 806 F.2d 636, 638 (6th
Cir. 1986). A habeas petitioner may obtain representation at any stage of the case
“[w]henever the United States magistrate or the court determines that the interests of justice
so require.” 18 U.S.C. § 3006A(a) (2)(B). Here, no evidentiary hearing is warranted, and
the Court concludes after careful consideration that the interests of justice do not require

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appointment of counsel at this time. The Court therefore denies the motion without
prejudice.
VI. Conclusion
Petitioner's “Motion for Evidentiary Hearing and Expansion of Record” [dkt. # 4],
“Motion to Set Aside and Vacate Judgment of Sentence and Conviction” [dkt. # 5], and
“Motion for Appointment of Counsel” [dkt. # 10] are DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
VICTORIA A. ROBERTS
United States District Judge
Dated: January 11, 2012
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on January 11, 2012, by electronic and/or ordinary mail.
S/Carol A. Pinegar
Case Manager

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