Roscoe v. Woods
Filing
17
OPINION and ORDER Denying Petitioner's 16 Motion to Stay, Denying 10 Amended Petition, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal in Forma Pauperis. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHANE ROSCOE,
Case No. 2:16-cv-11133
Petitioner,
HONORABLE STEPHEN J. MURPHY, III
v.
CONNIE HORTON,
Respondent.
/
OPINION AND ORDER
DENYING PETITIONER'S
MOTION FOR A STAY [16], DENYING
THE AMENDED PETITION [10], DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Shane Roscoe ("Petitioner"), a state inmate confined at the
Chippewa Correctional Facility in Kincheloe, Michigan, seeks habeas corpus relief
pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in Washtenaw
County Circuit Court and now challenges his convictions for first-degree, felony
murder, Mich. Comp. Laws § 750.316(1)(b), safe breaking, Mich. Comp. Laws §
750.531, breaking and entering a building with intent to commit a larceny, Mich.
Comp. Laws § 750.110, and assaulting, resisting, or obstructing a police officer, Mich.
Comp. Law § 750.81d. Before the Court are Petitioner's amended petition and recent
motion for a stay of this case while he pursues additional state remedies. For the
reasons below, the Court will deny Petitioner's motions for a stay and to amend the
petition.
1
BACKGROUND
The primary charges against Petitioner arose from a breaking and entering at
the Jim Bradley car dealership in Washtenaw County early on August 18, 2006. As
explained by the Michigan Court of Appeals, the breaking and entering
resulted in the death of one of the employees. It was alleged that
defendant and his [nephew], Jonathon Aiden, broke into the dealership,
where they had previously worked, and stole paint and chemical
hardeners. In the process, one of the night workers discovered the two
men, and as a result, they hit him in the head twice with a blunt object
and then ran him over with his own vehicle.
People v. Roscoe, 303 Mich. App. 633, 638–39 (2014).
The evidence at trial also established that, at 4:14 a.m. on the day of the crimes,
Aiden called the 911 operator and stated that someone in the parking lot of the
dealership needed assistance. ECF 14-12, PgID 1067. Aiden and Petitioner
subsequently went to Petitioner's home in Pinckney, Michigan.
Later that same day, Petitioner informed his wife Kimberly that he and Aiden
had gone to the dealership and tried to rob the place, but something had gone terribly
wrong. He explained that Sam, the security guard, had confronted Aiden in the
parking lot of the dealership and that he (Petitioner) had hit the guard twice on the
back of the head with a brick. Petitioner also stated that he and Aiden took a cell
phone from the dealership, and after Aiden called 911, they threw the cell phone out
the window of Petitioner's truck. Aiden later got rid of the things that the two men
took from the dealership by placing the things in a dumpster in the Detroit area. ECF
14-13, PgID 1097–98.
2
Meanwhile, at approximately 5:15 a.m. that same day, an employee of the
dealership arrived for work and saw the injured victim stumble out of nearby trees.
The employee called the police, and when paramedics arrived at the scene, the victim
stated that he had been run over by a vehicle. ECF 14-11, PgID 905, 924, 927, 929.
During an investigation of the crimes, the police interviewed and photographed
employees of the dealership, and on August 23, 2006, a detective went to the hospital
and spoke with the victim. The detective showed the victim forty-one photographs of
current and former employees of the dealership, because the victim had previously
said that his attackers were current or former mechanics at the dealership. Out of
those forty-one photographs, the victim isolated five photographs, including the
photographs of Petitioner, Aiden, an employee named Kurt Kuehne, and two other
men. The victim informed the police that Petitioner and Koehne definitely were his
attackers and that Aiden could have been one of his attackers. ECF 14-13, PgID
1144–46; ECF 14-14, PgID 1152. The police eventually eliminated Kuehne as a
suspect. ECF 14-14, PgID 1152.
The victim died in the hospital on September 14, 2006, while the investigation
was ongoing. Id. at 1153. Petitioner was briefly taken into custody, but then released
and not charged with anything. ECF 14-13, PgID 1090. In 2011, Petitioner and his
wife Kimberly divorced.1
Kimberly then informed the police about Petitioner's
involvement in the crimes at the dealership. Id., PgID 1093–94.
1
Kimberly remarried and testified at trial under the name Kimberly Flamil.
3
Petitioner was subsequently charged with open murder, safe breaking,
breaking and entering a building with intent to commit a larceny, and two counts of
resisting and obstructing a police officer. The last two counts arose from Petitioner's
attempts to avoid being handcuffed after he was taken into custody on August 24,
2006, and placed in an interview room at the Washtenaw County Sheriff's
Department. ECF 14-12, PgID 1045, 1047–49, 1071–73.
Petitioner was tried in Washtenaw County Circuit Court in 2012. There was
no physical evidence (fingerprints, shoe impression, DNA, murder weapon, or stolen
items) linking him to the crimes. The primary evidence against him on the murder,
breaking-and-entering, and safe breaking charges came from his ex-wife Kimberly
and the detectives who spoke with the murder victim in the hospital. Petitioner did
not testify or present any witnesses. His defense was that he was not guilty, that he
was at home during the commission of the crimes at the car dealership, that Kimberly
was a bitter ex-wife and a liar, and that the prosecution had not proved its case
beyond a reasonable doubt.
On the first count, the trial court instructed the jury on premeditated murder,
felony murder, second-degree murder, and voluntary manslaughter. On June 8, 2012,
the jury found Petitioner guilty of felony murder, safe breaking, breaking and
entering a building with intent to commit a larceny, and one count of resisting and
obstructing a police officer. The jury acquitted Petitioner of premeditated murder and
one additional count of resisting and obstructing a police officer.
4
The trial court sentenced Petitioner to life imprisonment without the
possibility of parole for the murder. The court also sentenced Petitioner as a fourth
habitual offender to concurrent terms of nineteen to fifty years in prison for the safebreaking conviction, twelve years, eight months to twenty years in prison for the
breaking-and-entering conviction, and one to two years in prison for the resistingand-obstructing conviction.
In an appeal as of right, Petitioner argued through counsel that the admission
of the victim's hearsay statements deprived him of a fair trial and his right of
confrontation, that counsel's failure to object to the hearsay on constitutional grounds
deprived him of effective assistance, and that the admission of "other acts" evidence
deprived him of due process. In a pro se supplemental brief, Petitioner argued that
the trial court's failure to disqualify itself was a structural error, that the prosecutor's
misconduct deprived him of due process and a fair trial, and that the trial court
violated his right to an impartial jury and fair trial by not dismissing an alternate
juror by random draw. The Michigan Court of Appeals rejected Petitioner's claims
and affirmed his convictions in a published opinion. See Roscoe, 303 Mich. App. at
633. The Michigan Supreme Court denied leave to appeal. See People v. Roscoe, 497
Mich. 946 (2014).
On September 25, 2015, Petitioner filed a motion for relief from judgment, in
which he argued that his trial attorney had an actual conflict of interest and that the
trial court abused its discretion by appointing counsel with an actual conflict of
interest. ECF 14-18. While that motion was pending in the state trial court, Petitioner
5
filed his habeas corpus petition, ECF 1, and a motion to stay the federal proceeding
while he continued to pursue state remedies, ECF 3. On May 17, 2016, the Court
granted Petitioner's motion for a stay, held this case in abeyance, and
administratively closed the case. ECF 6.
On July 18, 2016, the Washtenaw County Circuit Court denied Petitioner's
motion for relief from judgment, ECF 14-19, and on December 28, 2016, the Michigan
Court of Appeals denied his application for leave to appeal the trial court's decision.
See People v. Roscoe, No. 334281 (Mich. Ct. App. Dec. 28, 2016), ECF 14-20, PgID
1588. Subsequently, Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, which denied the application on November 29, 2017. People v. Roscoe,
501 Mich. 925 (2017).
Petitioner then returned to the Court and filed a motion to lift the stay, ECF
8, a motion to amend his petition, ECF 9, and an amended petition, ECF 10. On
February 27, 2018, the Court granted Petitioner's motions to lift the stay and to
amend the petition and ordered Respondent to file an answer to the allegations in the
amended petition. ECF 11. On June 14, 2018, Respondent filed a response to the
amended petition with the state-court record, ECF 13,14, and on July 13, 2018,
Petitioner filed a reply, ECF 13–15. Finally, on July 9, 2019, Petitioner filed another
motion to stay the federal proceeding. ECF 16.
STANDARD OF REVIEW
The Court may not grant habeas relief to a state prisoner unless his claims
were adjudicated on the merits and the state court adjudication was "contrary to" or
6
resulted in an "unreasonable application of" clearly established Supreme Court law.
28 U.S.C. § 2254(d)(1).
The Supreme Court has held that a state court's decision is contrary to "clearly
established law if it 'applies a rule that contradicts the governing law set forth in
[Supreme Court cases]' or if it 'confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15–16
(2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).
The state court unreasonably applies Supreme Court precedent not when its
application of precedent is merely "incorrect or erroneous" but when its application
of precedent is "objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520–21
(2003) (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, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 654 (2004)).
A federal court reviews only whether a state court's decision comports with
clearly established federal law as determined by the Supreme Court at the time the
state court renders its decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). A state court
need not cite to or be aware of Supreme Court cases, "so long as neither the reasoning
nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S.
3, 8 (2002). Further, decisions by lower federal courts "may be instructive in assessing
the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503
7
F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.
2003)).
Finally, a federal habeas court presumes the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may successfully rebut the
presumption only by clear and convincing evidence. Id.
DISCUSSION
I.
Motion to Stay Proceedings
In his pending motion for a stay, Petitioner asks the Court to hold his petition
in abeyance while he files another motion for relief from judgment in the state trial
court. The state-court motion alleges that Petitioner has newly-discovered evidence
consisting of Washtenaw County Detective John Scafasci's application for a pen
register and "trap and trace" device for a cellular telephone used by Aiden. ECF 16,
PgID 1811–21. The application states, among other things, that at 0527 hours,
approximately 75 minutes after the homicide, Aiden's cell phone made calls that
bounced off a cell phone tower in Ann Arbor, Michigan. Id. at 1819, ¶ GG.
Petitioner asserts that the statement about Aiden's cell phone is exculpatory
evidence because it reveals that Aiden was in Ann Arbor at 5:30 a.m. on the day of
the crime even though Petitioner's ex-wife Kimberly testified at trial that he and
Aiden were at the Roscoes’ home in Pinckney at the time. Petitioner further alleges
in his proposed state-court motion that the prosecutor relied on Kimberly's false
testimony regarding Aiden's whereabouts at 5:30 a.m. on the day of the crime.
Finally, Petitioner claims that he is innocent of the crimes for which he is
incarcerated.
8
"A federal district court has authority to abate or to dismiss a federal habeas
action pending resolution of state post-conviction proceedings." Sitto v. Bock, 207 F.
Supp.2d 668, 676 (E.D. Mich. 2002) (citing Brewer v. Johnson, 139 F.3d 491, 493 (5th
Cir. 1998)). But "to stay federal proceedings and to hold a habeas petition in abeyance
pending resolution of state court proceedings" requires "exceptional or unusual
circumstances." Id. Furthermore, a federal court ordinarily may grant a motion for
a stay only if (1) the petitioner shows good cause for his failure to exhaust his claim
first in state court, (2) the unexhausted claim is not plainly meritless, and (3) the
petitioner is not engaged in dilatory tactics. Rhines v. Weber, 544 U.S. 269, 277–78
(2005).
Petitioner's proposed new claim about Detective Scafasci is based on Brady v.
Maryland, 373 U.S. 83 (1963), in which the Supreme Court held that "the suppression
by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution." Id. at 87. To prevail on his Brady
claim, Petitioner must show that the evidence at issue is favorable to him, "either
because it is exculpatory, or because it is impeaching; that the evidence" was
"suppressed by the State, either willfully or inadvertently;" and that he was
prejudiced by suppression of the evidence. Strickler v. Greene, 527 U.S. 263, 281–82
(1999).
Here, even if the Court were to assume that the prosecution suppressed
Detective Scafasci's application for information about Aiden’s cell-phone usage,
9
Petitioner's Brady claim still fails. As noted above, Detective Scafasci indicated in his
application for a pen register that Aiden's cell phone call at 5:27 a.m. on August 18,
2006, bounced off a cell phone tower in Ann Arbor. This does not necessarily mean
that Aiden was in Ann Arbor at the time. It also does not contradict Kimberly Flamil's
trial testimony because she did not say exactly when Petitioner and Aiden arrived at
her and Petitioner’s home in Pinckney on August 18, 2016. She merely testified that
the two men arrived sometime before 5:30 a.m. on August 18, 2016. ECF 14-13, PgID
1097 (emphasis added). This testimony did not exclude the possibility that Aiden
made calls that bounced off an Ann Arbor cell tower at 5:27 a.m. that day. In fact,
there was testimony that someone used the Roscoes' land line to call Aiden's cell
phone at 5:33 a.m. that day. ECF 14-14, Pg ID 1159.
Furthermore, an employee for Metro PCS cell phone company indicated at trial
that a signal from Aiden's phone hit a cell tower as early as 5:27 a.m. on August 18,
2006. ECF 14-13, PgID 1135. Consequently, the jury was made aware that Aiden was
on the move as early as 5:27 a.m. on August 18, 2016.
The information in Detective Scafasci's application is therefore not exculpatory
new evidence, and Petitioner's Brady claim does not have sufficient merit to warrant
holding his habeas petition in abeyance.
Petitioner's claim that the prosecutor suborned perjury also fails. To prevail on
that claim, Petitioner must show that (1) Kimberly (Roscoe) Flamil's trial testimony
was false, (2) the testimony was material, and (3) the prosecutor knew the testimony
was false. Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 2012). Petitioner concludes
10
from Detective Scafasci's application for a pen register for Aiden's cell phone that Ms.
Flamil lied when she testified that Aiden and he were at her and Petitioner's home
at 5:30 a.m. on August 18, 2006. As explained above, however, Ms. Flamil stated that
Aiden and Petitioner were at her and Roscoe’s home sometime before 5:30 a.m. She
did not provide an exact time for their arrival.
Petitioner has failed to show that Ms. Flamil's testimony was false and that
the prosecutor knew Ms. Flamil's testimony was false. Therefore, his perjury claim
does not have sufficient merit to warrant holding his habeas petition in abeyance,
and to the extent that Petitioner is raising an independent claim of actual innocence,
his claim is not cognizable on habeas review. Herrera v. Collins, 506 U.S. 390, 400
(1993).
The Court concludes that the claims presented in Petitioner's proposed motion
for relief from judgment lack merit. Therefore, Petitioner is therefore not entitled to
a stay while he pursues additional state remedies. The Court will proceed to address
his current claims.
II.
The Habeas Petition
Petitioner raises seven general grounds for relief. The Court addresses each in
turn.
A. The Victim's Hearsay Statements
In his first and second claims, Petitioner alleges that the trial court abused its
discretion, violated his rights to due process and a fair trial, and violated his
constitutional right to confront the witnesses against him by admitting testimony
11
about the victim's hearsay statements. In the trial court and on appeal, the contested
statements were the ones made on August 23, 2006. On that date, the victim
identified Petitioner in a photograph and stated that Petitioner definitely was one of
his attackers. The victim also identified Aiden in a photograph and said that Aiden
could have been one of his attackers. ECF 14-13, PgID 1145–46; ECF 14-14, PgID
1152.
The trial court ruled that the victim's statements were admissible under the
forfeiture-by-wrongdoing exception to the hearsay rule in Michigan Rule of Evidence
804(b)(6). On appeal, the Michigan Court of Appeals reviewed Petitioner's evidentiary
argument for an abuse of discretion, but it reviewed Petitioner 's constitutional claim
for "plain error affecting [his] substantial rights," presumably because Petitioner did
not raise his claim as a constitutional issue in the trial court. People v. Roscoe, 303
Mich. App. 633, 648 (2014).2 The Court of Appeals then analyzed Petitioner's claim
and agreed with him that the trial court erred by admitting the victim's statements
to the police on August 23, 2006. The Court of Appeals nevertheless concluded that
Respondent argues that Petitioner's constitutional claim is procedurally defaulted
because the Michigan Court of Appeals reviewed that claim for "plain error." A
procedural default, however, is not a jurisdictional matter, White v. Mitchell, 431 F.3d
517, 524 (6th Cir. 2005), and "federal courts are not required to address a proceduraldefault issue before deciding against the petitioner on the merits." Hudson v. Jones,
351 F.3d 212, 215 (6th Cir. 2003). Petitoner’s first and second claims do not warrant
habeas relief, and the Court finds it more efficient to address the substantive merits
of the claims than to determine whether the claims are procedurally defaulted. The
Court, therefore, excuses the alleged procedural default in claims one and two and
proceeds to address those claims on their merits.
2
12
reversal was not warranted under evidentiary or constitutional standards because
the error was not outcome determinative. Id. at 642.
The contention that the state trial court erred in its interpretation of Michigan
Rule of Evidence 804(b)(6) lacks merit because "federal habeas corpus relief does not
lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). "To the extent
that any testimony and comments violated Michigan's rules of evidence, such errors
are not cognizable on federal habeas review." Hall v. Vasbinder, 563 F.3d 222, 239
(6th Cir. 2009). A claim of improperly admitted evidence is no part of a federal court's
review of a state conviction because, "[i]n conducting habeas review, a federal court
is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Petitioner's constitutional claim, of course, is cognizable on habeas review,
because the Sixth Amendment guarantees the accused in criminal cases with "the
right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI.
Under Crawford v. Washington, 541 U.S. 36, 52, 68 (2004), and Davis v. Washington,
547 U.S. 813, 822 (2006), the victim's statements to the police arguably were
"testimonial," and inadmissible because the victim was unavailable to testify at
Petitioner's trial due to his death, and Petitioner had no prior opportunity to confront
him.
The Michigan Court of Appeals, however, ruled that the evidentiary and
constitutional errors were harmless. Errors under the Confrontation Clause are
subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986);
13
Vasquez v. Jones, 496 F.3d 564, 574 (6th Cir. 2007). The Court, therefore, must
determine whether the constitutional error had a "substantial and injurious effect or
influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619,
637–38 (1993) (internal citations omitted), and whether the state court's finding of
harmlessness was unreasonable. Davis v. Ayala, 135 S. Ct. 2187, 2198–99 (2015).
The victim's identification of Petitioner as one of his attackers was substantial
evidence against Petitioner, but there was other evidence of his guilt. His ex-wife,
Kimberly, testified that Petitioner admitted to hitting the victim twice in the back of
the head with a brick during the course of breaking and entering the car dealership.
Furthermore, on August 20, 2006, the victim gave a general description of his
attackers as two white men, one with dark hair and one clean-shaven, both of whom
worked for or used to work as mechanics at the dealership. ECF 14-12, PgID 1068;
ECF 14-13, PgID 1087. On August 26, 2006, the victim reiterated that one of the
individuals who had assaulted him used to work as a mechanic at the dealership and
that the individual's name began with an "S." ECF 14-12, PgID 1032–33, 1036.
Petitioner is not challenging the statements made on August 20, 2006, or August 26,
2006, and he matched the general description of a white male with dark hair who
formerly was employed at the car dealership as a mechanic. See ECF 14-12, PgID
1069–70. Moreover, after the incident at the dealership,
[Petitioner] asked his wife [Kimberly], who worked at the hospital, to
look into the victim's medical records. There was also evidence that he
conducted Internet searches regarding the incident, and he also
searched the Ann Arbor death notices and the felonious-assault statute.
This is evidence of consciousness of guilt. Additionally, defendant told
the police that he still had keys to the dealership, and notably, there was
14
no evidence of forced entry. He also made statements to the police that
showed that he had personal knowledge of the victim's attack given that
the details had not been released to the public. Further, there was
evidence that defendant had a history of stealing from dealerships, and
while executing a search warrant at defendant's home, the police found
stolen car parts unrelated to the present offense.
Roscoe, 303 Mich. App. at 642–43. The Michigan Court of Appeals concluded that, "in
light of this other evidence, the erroneous admission of the victim's statement was
not outcome determinative." Id.
The state appellate court's determination of the facts is supported by the
record, and for the reasons given by the state court, the Court finds that the alleged
confrontation error could not have had a substantial and injurious effect or influence
on the jury's verdict. The state court's conclusion—that the evidentiary and
constitutional errors were harmless—is therefore objectively reasonable, and
Petitioner is not entitled to relief on his first and second claims.
B. Trial Counsel's Failure to Object
Petitioner's third claim alleges that his trial attorney deprived him of effective
assistance by failing to object to the victim's hearsay statements on the ground that
the hearsay statements violated his right of confrontation. Petitioner contends that
his trial attorney's reliance on state grounds only was not sound trial strategy and
that it allowed the prosecution to admit highly prejudicial evidence. The Michigan
Court of Appeals disagreed and concluded that he was not deprived of his
constitutional right to effective assistance of counsel. Id. at 645.
The "clearly established Federal law" here is Strickland v. Washington, 466
U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel under
15
Strickland, a defendant must show "that counsel's performance was deficient” and
“that the deficient performance prejudiced the defense." Id. at 687. The deficientperformance prong "requires showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. "[T]he defendant must show that counsel's representation fell below
an objective standard of reasonableness." Id. at 688.
The "prejudice" prong "requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
A defendant must demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694. In addition, "[t]he standards created by Strickland and § 2254(d)
are both 'highly deferential,' and when the two apply in tandem, review is 'doubly'
so." Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal and end citations
omitted).
To his credit, Petitioner's trial attorney argued vigorously before the trial court
that the victim's statements on August 23, 2006, were inadmissible. ECF 14-7.
Although he did not raise the issue under the Confrontation Clause, the Michigan
Court of Appeals pointed out that the analysis for the evidentiary and constitutional
questions is the same.3 A constitutional argument probably would have been futile,
3
As the Michigan Supreme Court explained,
16
as the trial court in all likelihood would not have ruled differently had Petitioner
made an argument under the Confrontation Clause. "[T]he failure to make futile
objections does not constitute ineffective assistance." Altman v. Winn, 644 F. App’x
637, 644 (6th Cir. 2016). Furthermore, because the alleged constitutional error was
harmless, Petitioner was not prejudiced by his trial attorney’s failure to raise the
issue under the Confrontation Clause.
The state appellate court's rejection of Petitioner's claim was not contrary to,
or an unreasonable application of Strickland and given the double deference due the
state-court's decision on habeas review, Petitioner is not entitled to relief on his claim.
C. "Other Acts" Evidence
Petitioner alleges next that the trial court deprived him of due process and a
fair trial by allowing the prosecution to admit "other acts" evidence against him. The
"other acts" evidence included testimony that: in 1991, Petitioner (i) broke into a
dealership and stole a tool chest, (ii) stole a Jeep from another dealership, and (iii)
stole a cash register from still another dealership, ECF 14-12, PgID 1061–64.
Furthermore, the other acts evidence also included testimony that in 2000, Petitioner
was involved in the theft of snowmobiles and a trailer, ECF 14-12 PgID 1023-24; and
evidence offered under the forfeiture exception will very regularly be
testimonial and subject to Sixth Amendment scrutiny. As forfeiture by
wrongdoing is the only recognized exception to the Sixth Amendment's
guarantee of the right to cross-examine adverse witnesses, the
constitutional question will often go hand-in-hand with the evidentiary
question.
People v. Burns, 494 Mich. 104, 113–14 (2013) (footnote omitted).
17
in 2008, he stole granite and bags of setting materials from a construction site in
Kentucky where he was working. ECF 14-12, PgID 1056–60. Petitioner contends that
the "other acts" evidence violated his rights to due process of law and a fair trial
because the acts occurred years earlier, it was unsubstantiated, and its prejudicial
value outweighed any probative value. Petitioner also alleges that he was in state
custody from November 1988 through February 1992 and could not have committed
some of the crimes.
The Michigan Court of Appeals concluded on review of Petitioner's claim that
the trial court did not err in admitting the evidence under Michigan Rule of Evidence
404(b) and that there was no due process violation. The Court rejects Petitioner's
state-law claim because the Supreme Court has made clear that "it is not the province
of a federal habeas court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States." Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991).
In addition, "[t]here is no clearly established Supreme Court precedent which
holds that a state violates due process by permitting propensity evidence in the form
of other bad acts evidence." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Although "the Supreme Court has addressed whether prior acts testimony is
permissible under the Federal Rules of Evidence, it has not explicitly addressed the
issue in constitutional terms." Id. at 513 (internal citations omitted). Thus, "there is
18
no Supreme Court precedent that the trial court's decision could be deemed 'contrary
to' under AEDPA." Id.
Of course, "[i]f a ruling is especially egregious and 'results in a denial of
fundamental fairness, it may violate due process and thus warrant habeas relief.'"
Wilson v. Sheldon, 874 F.3d 470, 475 (6th Cir. 2017) (quoting Bugh, 329 F.3d at 512).
But state-court evidentiary rulings do not rise to the level of due process violations
unless they offend a fundamental principle of justice. Id. at 475–76. "Ultimately,
states have wide latitude with regard to evidentiary matters under the Due Process
Clause." Id. at 476.
In the present case, moreover, the disputed evidence was admitted to show
that Petitioner had a pattern of breaking into businesses, and that he had specialized
knowledge about vehicles, stealing things in groups, and how to use things together.
ECF 14-8, PgID 785. This was a proper purpose for admitting the evidence. See Mich.
R. Evid. 404(b)(1) (stating that evidence of other crimes, wrongs, or acts may be
admissible for purposes such as "scheme, plan, or system in doing an act . . . when
the same is material, whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to the conduct at issue in the case").
Furthermore, the trial court instructed the jurors that they could use evidence
of other crimes Petitioner committed only to decide whether (a) he "had a reason to
commit the crime," (b) he "acted purposefully, that is, not by accident or mistake or
because he misjudged the situation," (c) he "used a plan, system, or characteristic
scheme that he had used before or since," and (d) he committed the crime for which
19
he was charged. The court charged the jurors not to use the "other acts" evidence to
decide that Petitioner was a "bad person or likely to commit crimes" or because they
thought he was guilty of other bad conduct. ECF 14-14, PgID 1213–14.
The Court concludes that the admission of "other acts" evidence did not violate
Petitioner's right to due process. He is not entitled to relief on his claim.
D. Denial of the Motion for the Trial Court to Recuse
Petitioner's fifth ground for relief alleges that the trial court deprived him of
due process, a fair trial, and an unbiased arbiter when it denied his motion to recuse
the court. To support this argument, Petitioner points out that, at the pretrial hearing
on his motion to exclude the victim's hearsay statements to a detective, the trial court
stated that there was evidence Petitioner had murdered the victim and, therefore, he
had forfeited his right to confront the victim. ECF 14-7, PgID 768. Petitioner argues
that this comment was evidence of judicial bias because, at the time, the court had
not heard any testimony, nor had it participated in any fact-finding proceedings.
Petitioner raised this issue in a pro se motion to disqualify the trial court on
the first day of trial. Petitioner asked the court to recuse itself from hearing any more
of the case and to appoint another judge. The trial court, however, denied the motion,
stating that its adverse ruling and view of the law were not valid grounds for
disqualification and that Petitioner had not shown actual bias. ECF 14-10, PgID 810–
11. Petitioner also raised his claim on direct appeal, but the Michigan Court of
Appeals concluded that Petitioner had failed to prove judicial disqualification was
warranted. Roscoe, 303 Mich. App. at 647–48.
20
To prevail on a claim of judicial bias, a defendant must show "there was bias,
or such a likelihood of bias or an appearance of bias that the judge was unable to hold
the balance between vindicating the interests of the court and the interests of the
accused." Ungar v. Sarafite, 376 U.S. 575, 588 (1964). Judicial rulings, moreover,
"almost never constitute a valid basis for a claim of judicial bias or partiality." Liteky
v. United States, 510 U.S. 540, 555 (1994). Additionally, "opinions formed by the judge
[based on] facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism that would make
fair judgment impossible." Id.
Petitioner's claim of judicial bias is based on comments the trial court made
when ruling on his motion to exclude the victim's statements to the police. Although
Petitioner contends that the court said he murdered the victim and that there was
evidence of that, the court was not expressing its personal opinion of his guilt or
innocence when it made that remark. Instead, the court said that the issue was
whether Petitioner had forfeited his right to confront the victim by murdering him.
ECF 14-7, PgID 19. The court concluded from the pleadings and oral arguments that
there was evidence Petitioner had murdered the victim, but the court made it clear
that the determination of guilt or innocence was a matter for the jury to decide. Id.
Petitioner has failed to show that there was bias, or such an appearance of bias
that the trial court was unable to balance the court's interests against his interests.
The state appellate court's rejection of Petitioner's claim was not contrary to, or an
21
unreasonable application of, Supreme Court precedent, and Petitioner is therefore
not entitled to relief on his claim.
E. The Prosecutor's Conduct
Petitioner's next claim alleges prosecutorial misconduct. Petitioner contends
that the prosecutor presented prejudicial evidence that he previously broke into two
businesses and stole a trailer and snowmobiles. He asserts that the thefts never
occurred and that the testimony was an attempt to portray him as a serial burglar.
Petitioner also blames the prosecutor for accusing a prosecution witness of
lying and then stating that she had personal knowledge the witness was lying. ECF
14-12, PgID. 1019–20. He contends that this comment rendered his trial unfair and
deprived him of due process.
The Michigan Court of Appeals reviewed Petitioner's prosecutorial-misconduct
claims for "plain error" and then concluded that the prosecutor did not commit
misconduct, opining that, even though it was error for the prosecutor to suggest that
a witness was lying and that the prosecutor had special knowledge that the witness
was lying, the error was not determinative, and it did not deprive Petitioner of a fair
trial.
Respondent argues that Petitioner's prosecutorial-misconduct claim is
procedurally defaulted due to the state court's analysis under a "plain-error" standard
of review. The Court, however, "cut[s] to the merits because an analysis of cause and
prejudice would only complicate this case." Thomas v. Meko, 915 F.3d 1071, 1074 (6th
22
Cir. 2019) (citing Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011)), cert. denied,
__ S. Ct. __, 2019 WL 2076712 (U.S. June 17, 2019).
On habeas review, "state courts have substantial breathing room when
considering prosecutorial misconduct claims because 'constitutional line drawing [in
prosecutorial misconduct cases] is necessarily imprecise.'" Slagle v. Bagley, 457 F.3d
501, 516 (6th Cir. 2006) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)).
Consequently, although prosecutors must "refrain from improper methods calculated
to produce a wrongful conviction," Viereck v. United States, 318 U.S. 236, 248 (1943),
prosecutorial-misconduct claims are reviewed deferentially on habeas review.
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004).
"Prosecutorial misconduct not invoking a specific provision of the Bill of Rights
is reviewed under the general standard for due-process violations: whether the
misconduct was so egregious as to deny the defendant a fundamentally fair trial."
LaMar v. Houk, 798 F.3d 405, 430 (6th Cir. 2015) (citing DeChristoforo, 416 U.S. at
643–45). "If the misconduct was harmless, then as a matter of law, there was no dueprocess violation." Bryan v. Bobby, 843 F.3d 1099, 1113 (6th Cir. 2016) (citing Greer
v. Miller, 483 U.S. 756, 765 n.7 (1987)), cert. denied, 138 S. Ct. 179 (2017). For the
following reasons, the Court finds that the prosecutor's conduct and remarks either
were not improper or they were harmless error.
1. Evidence of other thefts
Petitioner's first objection to the prosecutor's conduct is that she presented
"other acts" evidence that Petitioner previously broke into two businesses and stole a
23
trailer and snowmobiles. He claims that there was no evidence of a burglary at the
two businesses or that he assisted his nephew, Shane Doolittle, in stealing the trailer
and snowmobiles. He maintains that the prosecutor admitted the evidence to portray
him as a serial burglar.
Doolittle testified that he alone stole the trailer and snowmobiles, and he
denied previously telling the prosecutor that Petitioner had committed the crime with
him. ECF 14-12, PgID 1018–21. It is also true that the owners of the two businesses
from which the trailer and snowmobiles were taken did not mention a breaking and
entering or burglary when they testified at Petitioner’s trial; they merely stated that
the items were stolen or that there was a theft from their property. Id. at 1021 (Jorgen
Jensen's testimony); id. at 1022 (Tim Thomas's testimony). The trial court, however,
had previously authorized the prosecutor to admit "other acts" evidence, and the
prosecutor was entitled to rely on the trial court's evidentiary ruling. Cristini v.
McKee, 526 F.3d 888, 900 (6th Cir. 2008). Accordingly, the prosecutor did not commit
misconduct by introducing evidence about the stolen trailer and snowmobiles.
As previously discussed, a claim that "other acts" evidence was admitted at
trial generally is not a cognizable claim on habeas review. Bugh, 329 F.3d at 512.
Furthermore, there was some evidence that Petitioner and Doolittle actually did steal
the trailer and snowmobiles. Milford police officer Adam Post testified that he
encountered Petitioner with the trailer and snowmobiles on December 20, 2000, when
the Jeep that had been pulling the trailer and the snowmobiles got stuck in a field.
Petitioner was unable to provide Officer Post with registration for the stolen items,
24
and Post determined that Petitioner was not the owner of the snowmobiles. Post
followed footprints in the snow and then discovered Doolittle lying face down in the
snow. He impounded the trailer and snowmobiles and later learned that they had
been stolen. ECF 14-12, PgID 1023–24. The Court concludes that the prosecutor did
not deprive Petitioner of due process or a fair trial by admitting "other acts" evidence
regarding the theft of the trailer and snowmobiles.
2. Calling someone a liar.
Petitioner's only other claim about the prosecutor is that she accused Doolittle
of lying when he testified that he had not previously informed the prosecutor that
Petitioner was involved in the theft of the trailer and snowmobiles. In addition to
accusing Doolittle of lying, the prosecutor stated that she had personal knowledge
that Doolittle was lying. ECF 14-12, PgID. 1019–20. Petitioner contends that this
comment deprived him of due process and rendered his trial unfair.
Prosecutors should refrain from interjecting personal beliefs into the
presentation of their cases. United States v. Young, 470 U.S. 1, 8 (1985). A prosecutor
also may not "imply that he has special knowledge of facts not before the jury by
virtue of his office." United States v. Martin, 516 F. App'x 433, 441 (6th Cir. 2013)
(citing Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008), and United States v.
Francis, 170 F.3d 546, 550 (6th Cir.1999)).
But, Officer Post's testimony, as described above, tended to show that Doolittle
was lying when he claimed Petitioner was not involved in the theft of a trailer and
snowmobiles. Kimberly Flamil also testified about the incident with the trailer and
25
snowmobiles. She claimed that Petitioner had told her that he and Doolittle stole the
snowmobiles and were caught by the police. ECF 14-13, PgID 1102–03.
Given Officer Post's testimony, as well as Ms. Flamil's testimony, the
prosecutor's remarks about Doolittle being a liar could not have had a substantial
and injurious effect or influence on the jury's verdict. As such, the improper remarks
were harmless, and Petitioner is not entitled to relief on his prosecutorial-misconduct
claim.
F. Conspiracy.
Petitioner's seventh claim alleges that the trial court, the prosecutor, and his
trial attorney conspired to remove Juror #10 and then, after the court's charge to the
jury, excused Juror #10 as an alternate juror instead of randomly picking alternate
jurors. See ECF 14-14, PgID 1182, 1219–20. Petitioner contends that he did not agree
to this method of removing alternate jurors and that it deprived him of an impartial
jury. He further alleges that, under Michigan Court Rule 6.411, the proper way to
determine alternate jurors is by random selection.
The Michigan Court of Appeals determined that Petitioner waived his claim
because his trial attorney requested that Juror #10 be excused and because he did
not object when his attorney made the request. Roscoe, 303 Mich App at 650. The
decision to excuse the juror, however, was made during a bench conference, ECF 1414, PgID 1182, and Petitioner claims that he was not present at the time. He also
claims that he had previously informed his attorney that he wanted the alternate
jurors to be randomly selected.
26
Even if Petitioner did not waive his claim, the contention that the parties and
trial court did not comply with the Michigan Court Rule on alternate jurors is not a
basis for habeas relief. Jeffers, 497 U.S. at 780.
Furthermore, Petitioner has not shown that picking Juror #10 as an alternate
juror deprived him of an impartial jury. The Court therefore declines to grant relief
on Petitioner's claim that the removal of a specific juror as an alternate juror violated
his constitutional rights to a fair trial, due process of law, and a trial by an impartial
jury.
G. Counsel's Conflict of Interest and Appointment by the Trial Court.
Petitioner's eighth ground for relief asserts that his trial attorney, Erane
Washington, operated under a conflict of interest by failing to inform him that she
was married to the prosecutor who initiated the charges against him. The ninth and
final habeas claim alleges that the trial court knowingly appointed Ms. Washington
without inquiring about the conflict.
Petitioner raised this issue in his motion for relief for judgment, which the trial
court denied under Michigan Court Rule 6.508(D)(3) because he failed to show "good
cause" for not raising his claim on direct appeal and "actual prejudice" from the
alleged irregularity. As a result of that ruling, Respondent argues that Petitioner's
claim is procedurally defaulted.
1. Procedural default.
In the habeas context, a procedural default is “a critical failure to comply with
state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the doctrine of
27
procedural default, “a federal court will not review the merits of [a state prisoner’s]
claims, including constitutional claims, that a state court declined to hear because
the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1,
9 (2012). In the Sixth Circuit,
"[a] habeas petitioner’s claim will be deemed procedurally defaulted if
each of the following four factors is met: (1) the petitioner failed to
comply with a state procedural rule; (2) the state courts enforced the
rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the
petitioner has not shown cause and prejudice excusing the default."
[Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To determine
whether a state procedural rule was applied to bar a habeas claim,
[courts] look "to the last reasoned state court decision disposing of the
claim." Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
The state procedural rule at issue here is Michigan Court Rule 6.508(D)(3),
which reads in relevant part as follows:
(D) Entitlement to Relief. The defendant has the burden of establishing
entitlement to the relief requested. The court may not grant relief to the
defendant if the motion
....
(3) alleges grounds for relief, other than jurisdictional
defects, which could have been raised on appeal from the
conviction and sentence or in a prior motion under this
subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds
on appeal or in the prior motion, and
(b) actual prejudice from the alleged
irregularities that support the claim for relief.
Mich. Ct. R. 6.508(D)(3).
28
Petitioner violated this rule by not raising his conflict-of-interest claim in his
appeal of right. He raised the claim for the first time in his post-appeal motion for
relief from judgment. Petitioner's violation of Rule 6.508(D)(3) satisfies the first
procedural-default factor.
The last state court to address Petitioner's claim in a reasoned opinion was the
trial court, and it rejected the claim because he did not show "good cause" under Rule
6.508(D)(3)(a) or "actual prejudice" under Rule 6.508(D)(3)(b). This ruling constituted
enforcement of Rule 6.508(D), and even though the trial court also addressed
Petitioner's claim on the merits, the alternative holding does not require this Court
to disregard the state court's procedural ruling. Coe, 161 F.3d at 330. As explained in
Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989),
a state court need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law. See Fox Film Corp.
v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L. Ed. 158 (1935).
Thus, by applying this doctrine to habeas cases, [Wainwright v. Sykes,
433 U.S. 72 (1977)] curtails reconsideration of the federal issue on
federal habeas as long as the state court explicitly invokes a state
procedural bar rule as a separate basis for decision. In this way, a state
court may reach a federal question without sacrificing its interests in
finality, federalism, and comity.
(emphasis in original). Thus, the trial court's ruling satisfies the second proceduraldefault factor.
The third procedural-default factor also is satisfied because Rule 6.508(D) is
an adequate and independent ground on which state courts may rely to foreclose
review of federal claims. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). So,
29
to prevail on his procedurally defaulted claim, Petitioner must show cause for his
state procedural error and resulting prejudice.
2. Cause and prejudice
Petitioner alleges that he could not raise his claim on direct appeal because no
one revealed the conflict of interest to him and because he did not discover the conflict
until he received his attorney's case file on May 17, 2015, despite his diligent efforts
to acquire the file. Even if the Court were to assume that Petitioner has shown cause
for his procedural default, he has not shown resulting prejudice.
The record before the Court reveals that Petitioner initially was represented
by the Washtenaw County Public Defender's Office, and when the Public Defender
announced that it had a conflict of interest, the trial court appointed the Julington
Law Firm to represent Petitioner. ECF 14-4, PgID 729. At the time, the Julington
Law Firm held the contract for representing defendants when the Washtenaw County
Public Defender's Office had a conflict of interest. See Order Denying Mot. for Relief
from J., ECF 14-19, PgID 1585. Ms. Washington was a member of the Julington Law
Firm, and she was present when the trial court appointed her firm to represent
Petitioner. ECF 14-4, PgID 729.
Petitioner also claims that Ms. Washington is married to Anthony Kendrick
who authorized the charges against him and, therefore, Ms. Washington had a
conflict of interest. But, Mr. Kendrick did not conduct the preliminary examination,
nor represent the People of the State of Michigan at trial, and, according to the trial
court, Kendrick was not the prosecuting attorney's direct supervisor.
30
Furthermore, Ms. Washington did not actively represent Petitioner in pretrial
hearings or at trial. Attorney John Paul Vella represented him at pretrial hearings
after the Public Defender withdrew from the case. Mr. Vella also represented
Petitioner at trial, and even though Mr. Vella stated during voir dire that Ms.
Washington would be assisting him, ECF 14-10, PgID 817, Vella performed all the
obvious trial tasks. He participated in voir dire, conducted all the cross-examinations,
made all the defense objections, argued the motion for a directed verdict of acquittal,
participated in bench conferences and other discussions, made the closing argument,
and was present when the jury reached its verdict. Petitioner has not shown that he
was prejudiced by the alleged conflict of interest and, therefore, he cannot excuse his
procedural default.
2. Miscarriage of justice
In the absence of "cause and prejudice," a habeas petitioner may pursue a
procedurally defaulted claim if he can demonstrate that failure to consider his claim
will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 750 (1991). "A fundamental miscarriage of justice results from the conviction of
one who is 'actually innocent.'" Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006)
(internal citation and quotation omitted). "To be credible, [a claim of actual innocence]
requires [the] petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial."
Schlup v. Delo, 513 U.S. 298, 324 (1995).
31
Petitioner has not presented the Court with any new and reliable evidence of
actual innocence. A miscarriage of justice will therefore not occur.
For the reasons set forth above, Petitioner's eighth and ninth claims are
procedurally defaulted, his state-law claims are not cognizable on habeas review, and
the state courts' rejection of Petitioner's constitutional claims was not contrary to
Supreme Court precedent, an unreasonable application of Supreme Court precedent,
or an unreasonable determination of the facts.
ORDER
WHEREFORE, it is hereby ORDERED that the amended habeas petition
[10] is DENIED.
IT IS FURTHER ORDERED that Petitioner's motion for a stay and to hold
his habeas petition in abeyance [16] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED
because reasonable jurists could not disagree with the Court's resolution of
Petitioner's constitutional claims, nor conclude that the issues presented deserve
encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
IT IS FURTHER ORDERED that Petitioner may proceed in forma pauperis
if he appeals this decision because he was granted leave to proceed in forma pauperis
in this Court, and an appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).
SO ORDERED.
Dated: August 28, 2019
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
32
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 28, 2019, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager
33
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