Borgia v. Stewart

Filing 7

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or 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
TERRY BORGIA,
Case No. 2:16-cv-11768
Petitioner,
v.

HONORABLE STEPHEN J. MURPHY, III

ANTHONY STEWART,
Respondent,
_______________________/
OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Terry Borgia, confined at the Huron Valley Women's Correctional Facility
in Ypsilanti, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In her pro se application, Borgia challenges her conviction for first-degree felony
murder, Mich. Comp. Laws § 750.316(1)(b), and first-degree child abuse, Mich. Comp.
Laws § 750.136(2). For the reasons stated below, the Court will deny the application for writ
of habeas corpus.
BACKGROUND
Borgia was convicted following a jury trial in the Macomb County Circuit Court. The
Court presumes the relevant facts relied upon by the Michigan Court of Appeals are
correct, see Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), and recites them
verbatim:
This case arises from the drowning of a small child that occurred on January
11, 2010, in Clinton Township, Michigan. On the morning of January 11,
2010, defendant was present in her apartment in Clinton Township with her
daughter Tonina Borgia and her grandson, DT. DT was the son of
1

defendant's other daughter, Amy Alkasmikha; defendant and Tonina were
babysitting DT on January 11, 2010. DT was four years old. Between 7:00
a.m. and 8:00 a.m., a 911 call was made from defendant's home to report a
drowned child. A group of firefighters were the first to arrive on the scene;
when they arrived at the apartment, they found that no lights were on and the
front door of the apartment was locked. After the firefighters knocked on the
front door for approximately 10 to 15 seconds, defendant opened the door
and let them into the apartment. Defendant appeared calm, and she said
nothing as she led the firefighters into the interior of the apartment.
Defendant led the firefighters to a bathroom along the main hallway of the
apartment; inside, DT was lying on his back, unconscious, on the bathroom
floor. Tonina was kneeling next to DT in the bathroom, speaking to an
unknown person on a cordless phone.
As firefighters began first aid procedures on DT, Mark Turo, one of the
firefighters present, questioned defendant about what had happened.
Defendant told Turo that DT had been sleeping on the couch in the living
room of the apartment, and that approximately one hour before the
firefighters arrived, she placed him in the bathtub. Defendant stated that she
had not checked on DT after she placed him in the bathtub. Turo stated that
neither defendant nor Tonina could answer his basic questions about DT's
background, including what his last name was and what his birthday was.
Defendant also initially told Turo that she was DT's mother. Preston Susalla
was one of the first police officers to arrive on the scene; she also questioned
defendant and Tonina about what had happened to DT. Susalla stated that
defendant was calm and emotionless throughout their conversation;
however, Tonina was hysterical. Defendant told Susalla that "approximately
10 minutes after waking up she went into the bathroom and filled the bathtub,
filled it with water." Defendant told Susalla that "[a]fter filling the bathtub with
water, she then walked into the living room where DT was sleeping on the
couch, and she picked him up and then proceeded to walk into the bathroom
where she [had] filled the tub full of water." Defendant stated that she placed
DT in the tub, with his pajamas still on, and then walked into the kitchen; she
also stated that she did not check on him for 25 minutes until Tonina
discovered him.
Leo Melise, a police detective, also interviewed defendant at the apartment.
Defendant told Melise that she had awoken at approximately 6:00 a.m. that
morning, brushed her teeth, showered, and then she ran a bath for DT.
Defendant told Melise that she placed DT in the bathtub with his pajamas still
on, and then walked away. After defendant spoke with Melise, she was
arrested and transported to a police station. Police officers discovered five
inches of standing water in the bathtub; additionally, the floor around the
bathtub was wet. Police officers also recovered wet children's pajamas and
a wet mop from the apartment.
2

DT was declared deceased at a hospital after being transported from the
apartment in an ambulance, and an autopsy was performed. Daniel Spitz,
who performed the autopsy, observed bruising on DT’s scalp and neck that
were consistent with physical trauma. Additionally, Spitz found petechiae
around DT’s eyes; he stated that petechiae are broken blood vessels that
form in response to increased pressure in the head and face. Spitz also
found tearing inside DT’s lip that was consistent with his lips having been
pressed hard against his teeth. Spitz determined that DT’s cause of death
was forced submersion and drowning, and also that the manner of death was
homicide.
Throughout the trial, defendant’s counsel argued that defendant was
attempting to falsely take responsibility for DT's death in an attempt to protect
Tonina; defense counsel argued that Tonina actually killed DT. Vicky
Antishin, defendant's other daughter, testified that she believed Tonina was
responsible for DT's death. Specifically, Vicky testified that several days after
DT's death, Tonina was staying at her house, and Tonina had spoken around
her children with "satanic talk." Further, Vicky stated that Tonina attempted
to kidnap one of Vicky's children by pulling the child out the front door of
Vicky’s house on the same day. Additionally, Vicky stated that Tonina had
confessed to killing DT one day as the two were driving together to one of
defendant's court dates. Vicky also testified that DT was exceptionally strong
for a small child, and that defendant would have been unable to physically
overpower him.
Tonina was not present for defendant's trial; however, Tonina's November
30, 2012 testimony, from one of defendant's prior mistrials 1, was read for the
jury. Tonina denied killing DT, and stated she believed defendant had killed
DT because she was tired of being a grandmother and having to constantly
babysit him. Tonina also stated that defendant had suffered from mental
problems in the past several years, had attempted suicide, and that her
daughters had attempted to have her admitted to a mental hospital. Tonina
also admitted that she personally suffered from bipolar syndrome and
psychosis, and that she had taken antipsychotic medications throughout her
adult life. Tonina stated that she went to bed between 9:00 p.m. and 10:00
p.m. on January 10, 2010, and that defendant and DT were together in the
1

Defendant was initially charged with first-degree premeditated murder, MCL
750.316(1)(a), and felony murder, MCL 750.316(1)(b). The trial court ordered three
separate mistrials during attempted prosecutions of defendant. On June 8, 2012, a
mistrial was declared because an inadmissible statement made by defendant to police
was submitted to the jury. Another mistrial was declared because Tonina suddenly
became unavailable as a witness. Yet another mistrial was declared because the jury
was unable to reach a verdict. (Footnote original).
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living room at that time. Tonina awoke at approximately 5:00 a.m. on January
11, 2010, and defendant knocked on her door; defendant stated that she had
killed DT. Tonina walked to the bathroom and saw DT floating in the bathtub.
Additionally, recorded audio tapes of Tonina's conversations with a police
detective were played for the jury; during two of the interviews, she denied
killing DT, but in an April 2011 interview, she admitted to killing DT.
During closing arguments, the prosecutor stated:
And then I heard [defense counsel] stand up here and indicate
right off the bat, ... his client is not saying a word in her own
defense, she is perfectly happy to fall on the sword. If that
were true, she would have pled to it. And I say this, I say let’s
give her her wish, let’s convict her, not because she is a martyr
... but because she is a murderer.
Defendant objected to the prosecutor's statement and requested a curative
instruction. The trial court agreed and provided the jury with the instruction
that the lawyers' opening statements and closing arguments are not
evidence, and also an instruction that the jury should ignore the prosecutor's
comments to the effect that defendant should have pleaded guilty. On April
17, 2013, defendant filed a motion for a new trial; defendant argued that the
prosecutor's statement during closing argument denied her a fair trial. On
June 12, 2013, the trial court denied defendant’s motion for a new trial, ruling
that the prosecutor's statement was made in direct response to defense
counsel's argument that defendant was "falling on a sword and taking the
blame for her daughter." Further, the trial court ruled that the prosecutor's
statement did not implicate defendant's silence at trial; rather, it implicated
defendant's failure to plead guilty.
People v. Borgia, No. 316940, 2014 WL 5364173, at *1–3 (Mich. Ct. App. Oct. 21,
2014).
Borgia's conviction was affirmed on appeal. Id., lv. den. 497 Mich. 1028 (2015).
Borgia seeks habeas relief on the following grounds:
I. Petitioner's Fourteenth Amendment was violated when the prosecution
failed to produce legally sufficient evidence to identify petitioner as the
perpetrator or prove her guilt beyond a reasonable doubt.
II. The prosecutor violated petitioner's state and federal constitutional due
process rights to a fair trial by making comments during her closing argument
which violated petitioner's right to remain silent.
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LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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 habeas
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 410-11. "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).
Therefore, to obtain habeas relief in federal court, a state prisoner is required to show that
5

the state court's rejection of his claim "was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement." Id. at 103. A habeas petitioner should be denied relief as long as it is within
the "realm of possibility" that fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
DISCUSSION
I. Insufficient Evidence Claim
Borgia contends that there was insufficient evidence to support her conviction. It is
beyond question that "the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the critical
inquiry on habeas review is "whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
Under Jackson, the court must not "ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt."
Id. (quotations, citation, and footnote omitted)(emphasis in original).
More importantly, a federal habeas court may not overturn a state-court decision that
rejects a sufficiency of the evidence claim simply because the federal court disagrees with
the state court's resolution of that claim. Instead, a federal court may grant habeas relief
only if the state-court decision was an objectively unreasonable application of the Jackson
standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). "Because rational people can
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sometimes disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold." Id. Indeed, for a federal habeas court reviewing a state-court
conviction, "the only question under Jackson is whether that finding was so insupportable
as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S. Ct. 2060,
2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or redetermine
the credibility of the witnesses whose demeanor was observed at trial. Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder "to weigh the
probative value of the evidence and resolve any conflicts in the testimony." Neal v. Morris,
972 F. 2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the factfinder
for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780,
788 (6th Cir. 2003). The Court does not apply the reasonable doubt standard when
determining the sufficiency of evidence on habeas review. Walker v. Russell, 57 F. 3d 472,
475 (6th Cir. 1995).
Here, Borgia contends that there was insufficient evidence to establish that she was the
person who drowned the victim. On direct review, the Michigan Court of Appeals rejected
Borgia's claim:
Taking the evidence in the light most favorable to the prosecution, a reasonable jury
could have concluded that defendant was guilty of first-degree felony murder and
first-degree child abuse. Defendant argues that Tonina was responsible for DT's
death; specifically, defendant notes that evidence existed that Tonina confessed to
the crimes. However, defendant confessed to placing DT in the bathtub to three
separate emergency responders on the morning of the offenses. Tonina stated that
defendant informed her that she had killed DT before emergency responders
arrived. DT was found in the hallway bathroom, not the bathroom attached to
Tonina's bedroom. Further, when emergency responders arrived at the apartment,
7

they found Tonina to be extremely upset and hysterical about DT's condition;
however, defendant was calm and did not ask any questions. Taking the evidence
in the light most favorable to the prosecution, a reasonable jury could have
concluded that defendant drowned DT. Drowning a child constitutes first-degree
child abuse because it involves intentionally causing serious harm to a child; if that
drowning results in death, the perpetrator is also guilty of first-degree felony murder.
Accordingly, sufficient evidence existed to support defendant's convictions.
People v. Borgia, 2014 WL 5364173, at *4 (internal citation omitted).
Under Michigan law, "[t]he identity of a defendant as the perpetrator of the crimes
charged is an element of the offense and must be proved beyond a reasonable doubt."
Byrd v. Tessmer, 82 F. App'x. 147, 150 (6th Cir. 2003) (citing People v. Turrell, 181 N.W.2d
655, 656 (Mich. Ct. App. 1970)).
The primary evidence against Borgia was her daughter Tonina's testimony that
Borgia had confessed to killing DT. "An admission by the accused identifying himself [or
herself] as the person involved in the [crime] is sufficient to sustain a guilty verdict when the
crime itself is shown by independent evidence." United States v. Opdahl, 610 F.2d 490, 494
(8th Cir. 1979); see, e.g., Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (petitioner's
identity as murderer supported in part by evidence that he confessed several times to
murdering sister); Sok v. Romanowski, 619 F. Supp. 2d 334, 351 (W.D. Mich. 2008)
(petitioner's admissions that placed him at the location of the crime supported sufficiency
of identity evidence); Hatchett v. Withrow, 185 F. Supp. 2d 753, 759 (E.D. Mich. 2002)
(petitioner's identity as perpetrator of crime supported in part by his detailed confession to
the crime).
Although in her third statement to the police, Tonina said that she had killed the
victim, she denied having anything to do with his death in her first two interviews. Tr. 76–79,
ECF No. 6-22. At trial, Tonina denied having anything to do with the victim’s death. Id. at
8

51, 73. Tonina reiterated that her mother confessed to killing DT. Id. at 74. Tonina denied
that her mother was covering up for her. Id. at 51. 2 Although petitioner’s other daughter,
Vicky Antishin, testified that Tonina had confessed to killing DT as the two were driving to
court, Antishin admitted that Tonina was not on her medications at the time that she made
this admission. Tr. 61–62, ECF No. 6-29.
In sum, the jury chose to credit Tonina's testimony that Borgia confessed to killing
DT as well as Tonina's testimony in which she denied any involvement in his death. The
Court cannot second-guess the factfinder's credibility determination on habeas review.
In addition, circumstantial evidence supported the jury's conclusion that Borgia
murdered DT and that Tonina was not the killer. "Circumstantial evidence alone may be
sufficient to support a conviction, and it is not necessary for the evidence at trial to exclude
every reasonable hypothesis except that of guilt. Johnson, 200 F.3d at 992 (alteration and
quotations omitted). Moreover, the "[i]dentity of a defendant can be inferred through
circumstantial evidence." See Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich. 2002).
A defendant’s erratic and suspicious behavior in the aftermath of a murder is
sufficient circumstantial evidence to support a jury's finding that the defendant was the
perpetrator. Johnson, 200 F. 3d at 992. Several of the first responders—including Clinton
Township Fire Chief Mark Turo—testified that Borgia's calm demeanor was inconsistent
with the behavior of a family member whose child has been killed or injured. Chief Turo

2

Respondent claims that Tonina clarified that her confession during the third
interview was untrue. See Response 28, ECF No. 5 (citing Tr. 51, ECF No. 6-22).
Although Tonina's testimony substantively contradicted her prior confession, the Court
has reviewed the transcript page cited by Respondent and has not found that Tonina
specifically referenced her third interview.
9

testified to the circumstances that he and the firefighters encountered upon arriving at
Borgia's residence:
In my almost 25 years [as a fireman] I have responded on dozens and
dozens of calls involving children, both drowning victims, children that are not
breathing, and never before have I ever pulled up on a scene in any fashion
and nobody outside screaming frantic. It was—it was just very unusual.
Tr. 92, ECF No. 6-27.
Chief Turo indicated that it took Borgia ten to fifteen seconds to answer the door,
which he also found disconcerting: "Like I said, it was unusual, the door was locked and
nobody was waiting for us." Id. at 92–93. Chief Turo also testified that Borgia was very
calm, and was not frantic or hysterical. Id. at 93. Borgia did not ask Chief Turo any
questions about DT or his condition. Id. at 93–94, 101–02.
Another responder, Officer Preston Susalla of the Clinton Township Police
Department, testified that Tonina's hysterical behavior was consistent with the relative of
a dead or injured child. Officer Susalla testified that when he arrived at the location, Tonina
was "hysterical." Id. at 153. By contrast, Borgia had "no emotion, didn’t have any concern
over the situation." Id. at 154. Officer Susalla testified that Tonina's behavior was consistent
with reactions of parents or family members who witness a child get killed or injured, while
Borgia's reaction was not consistent with a normal reaction from a family member to the
death of a child. Id. at 179–81. The jury could have easily inferred from Borgia's calm,
almost apathetic demeanor that she was the actual killer.
Finally, the Court notes that although Borgia did not admit to drowning DT, she told
three separate first responders that she placed DT in the bathtub. DT was found in the
hallway bathroom, not the bathroom attached to Tonina’s bedroom. This additional
10

circumstantial evidence may have further suggested to the jury that Borgia was the actual
killer.
A federal court reviewing a state-court conviction on habeas review that is "faced
with a record of historical facts that supports conflicting inferences must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution." Cavazos, 565 U.S.
at 7 (quoting Jackson, 443 U.S. at 326). Although Tonina attempted to later take
responsibility for DT's death, the jury could have discounted her story based on the fact that
she was not taking her anti-pyschotic medications at the time that she made these
admissions, and because she was extremely upset at the crime scene concerning the
victim's condition, whereas Borgia was not. The jury could have also rejected the theory
that Tonina was the real killer based on the fact that Borgia admitted to placing the victim
in the bathtub and that the victim was found in the hallway bathroom, not Tonina's
bathroom. Because there were multiple pieces of evidence to establish petitioner's identity
as the person who drowned DT, the Michigan Court of Appeals did not unreasonably apply
Jackson in rejecting petitioner's sufficiency of evidence claim. See Moreland v. Bradshaw,
699 F.3d 908, 919–21 (6th Cir. 2012).
To the extent that Borgia challenges the credibility of the prosecution witnesses, she
is not entitled to relief. "Attacks on witness credibility are simply challenges to the quality
of the prosecution's evidence, and not to the sufficiency of the evidence." Martin v. Mitchell,
280 F.3d 594, 618 (6th Cir. 2002) (quotations omitted). An assessment of the credibility of
witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence
claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). The mere existence of sufficient
11

evidence to convict therefore defeats a petitioner's claim. Id. Any insufficiency of evidence
claim that rests on an allegation of the witnesses' credibility, which is the province of the
finder of fact, does not entitle a habeas petitioner to relief. See Tyler v. Mitchell, 416 F. 3d
500, 505 (6th Cir. 2005). Borgia is not entitled to relief on her first claim.
II.

Prosecutorial Misconduct Claim
Borgia contends that the prosecutor committed misconduct by commenting

improperly on her decision not to testify:
And then I heard [defense counsel] stand up here and indicate right off the
bat, ... his client is not saying a word in her own defense, she is perfectly
happy to fall on the sword. If that were true, she would have pled to it. And
I say this, I say let's give her her wish, let’s convict her, not because she is
a martyr ... but because she is a murderer.
Tr. 108–09, ECF No. 6-29. "Claims of prosecutorial misconduct are reviewed deferentially
on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). A prosecutor's
improper comments will be held to violate a criminal defendant's constitutional rights only
if they "so infected the trial with unfairness as to make the resulting conviction a denial of
due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotations omitted).
Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was
so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643–45 (1974). In order to obtain
habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the
state court's rejection of his prosecutorial misconduct claim "was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Parker v. Matthews, 567 U.S. 37 (2012) (per
curiam) (quoting Harrington, 562 U.S. at 103).
12

In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme Court held
that neither the court nor the prosecutor may invite the jury to infer guilt from the
defendant's decision not to testify. They may not "solemnize [ ] the silence of the accused
into evidence against him," id. at 614, or "suggest[ ] to the jury that it may treat the
defendant's silence as substantive evidence of guilt." Baxter v. Palmigiano, 425 U.S. 308,
319 (1976).
When a prosecutor’s remark or statement indirectly comments on a habeas
petitioner's decision not to testify, a court applies four factors to evaluate the statement: "1)
Were the comments manifestly intended to reflect on the accused's silence or of such a
character that the jury would naturally and necessarily take them as such; 2) were the
remarks isolated or extensive; 3) was the evidence of guilt otherwise overwhelming; 4) what
curative instructions were given and when." Bowling v. Parker, 344 F.3d 487, 514 (6th Cir.
2003) (quotations omitted). As to the first factor, a court should not find a manifest intent
to comment on the right to remain silent if some other explanation for the prosecutor's
remarks is equally plausible, such as when a comment is a "fair response to a claim made
by [the] defendant or his counsel." See Gall, 231 F. 3d at 311 (quotations and citation
omitted). The Michigan Court of Appeals rejected Borgia's claim for exactly that reason:
During defendant's closing argument, defense counsel stated:
You’ve sat, you've watched [defendant] for this past week
sitting there like a lump of mush, not lifting a finger, not saying
a word in her own defense. Why do you suppose that is?
[Defendant] has a death wish of sorts. She is perfectly happy,
and what you see now it's been like that for three years, she is
perfectly happy to fall on the sword and go to the Pope to
spare her daughter. Maybe you wouldn't do that, maybe I
wouldn't do that. That’s her choice, and her decision.
13

I am not going to let that happen. From the first time a
policeman walked into her apartment on that January morning,
that's been her attitude and it hasn't changed over the three
years. I did it, it is me, take me.
***
Although the prosecutor did mention that defendant failed to testify, by
highlighting that she had not said anything in her own defense, the context
indicates that the prosecutor was merely reiterating and responding to
defense counsel's assertion that defendant was taking the blame for an
offense she did not commit. The crux of the prosecutor's statement was that
defendant could have pleaded guilty to the charged offenses if she wished
to be convicted instead of Tonina; it was not an attempt to shift the burden
of proof to defendant. In the context of the trial, the prosecutor's statement
was isolated and in direct response to the theory of defense counsel: that
defendant was falsely taking the blame for Tonina.
People v. Borgia, 2014 WL 5364173, at * 5.
The Court agrees. The prosecutor’s remarks were a fair response to defense
counsel’s argument that Borgia was attempting to take the blame for a murder she did not
commit. See United States v. Beverly, 369 F.3d 516, 543–44 (6th Cir. 2004) (finding no
misconduct from prosecutor's statement "why [defendant] did what he did, only he can
answer" that responded to defense counsel's prior argument that defendant did not flee
from arrest); Burton v. Phillips, 64 F. Supp. 2d 669, 684 (E.D. Mich. 1999) (finding no
misconduct from prosecutor's statement "[t]here are secrets locked up in this [defendant]"
that responded to defense counsel's prior argument "that the prosecutor could not really
say what happened the night of the killings because he (the prosecutor) was not present")
(footnote omitted) (alteration in original). Therefore, the prosecutor's comments did not
violate Borgia's Fifth Amendment privilege against self-incrimination.
In addition, Borgia would not be entitled to habeas relief on this claim, because the
prosecutor’s remarks were neither "flagrant nor repeated." Joseph v. Coyle, 469 F.3d 441,
14

474 (6th Cir. 2006). Borgia would finally not be entitled to habeas relief on this claim, in light
of the trial court's curative instruction to the jury about petitioner's right not to testify and
that it must not affect their verdict. Tr. 117, ECF No. 6-29; see also Coyle, 469 F.3d at 474.

III.

Certificate of Appealability
Before a petitioner may appeal the denial of a habeas petition, the Court must

determine if the petitioner is entitled to a Certificate of Appealability (COA). 28 U.S.C.
§ 2253(c)(1)(a); see also Fed. R. App. P. 22(b). The Court must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why
such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b). A COA
may be issued "only if the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied
when a petitioner demonstrates "that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
In applying the above standard, a district court may not conduct a full merits review
of the petition. Miller-El v. Cockrell, 537 U.S. 322, 336–37 (2003). Instead, "[w]hen a
habeas applicant seeks a COA," a federal court should "limit its examination to a threshold
inquiry into the underlying merit of his claims." Id. at 323. "The district court must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant."
Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v.
Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
15

After conducting the required inquiry, and for the reasons stated in the order above,
the Court finds that Borgia has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). Borgia should not receive any
encouragement to proceed further. Slack, 529 U.S. at 484. Because the Court can discern
no good-faith basis for an appeal, see Miller-El, 537 U.S. at 338, any appeal would be
frivolous. The Court will therefore deny a certificate of appealability. The Court will also
deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous.
See Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999).
ORDER
WHEREFORE, it is hereby ORDERED that the petition for a writ of habeas corpus
[1] is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be denied leave to appeal in forma
pauperis.
IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 24, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on February 24, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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