Nelson v. Trierweiler

Filing 8

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVONTAH LEE NELSON,
Petitioner,

Case Number 17-10564
Honorable David M. Lawson

v.
TONY TRIERWEILER,
Respondent.
_____________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
In a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254, Michigan prisoner
Davontah Lee Nelson challenges his convictions of first-degree felony murder and first-degree
child abuse. Nelson argues that the evidence was insufficient to support the convictions, otheracts evidence was admitted improperly, and the convictions of both crimes violated his rights under
the Double Jeopardy Clause of the Fifth Amendment. The warden contends that the petition should
be denied because two of the claims are barred by procedural default and all of the claims lack
merit. The Court finds that the petitioner=s claims lack merit and do not warrant federal habeas
relief. The Court, therefore, will deny the petition.
I.
The petitioner’s convictions arise from the death of his infant daughter on October 9, 2013.
The Michigan Court of Appeals summarized the facts on direct appeal as follows:
The victim, Amareah, was almost five months old when she died while in Nelson’s
care on October 9, 2013. Amareah’s pediatrician testified that she was healthy in
August 2013. Amareah’s mother testified that she and Nelson lived together with
their two children, and she left Amareah with Nelson to go to work. Gavin Witten
testified that at some point that evening he heard ten or fifteen repetitive thudding
noises come from Nelson’s apartment.

Firefighter Dan Kimball testified that he was dispatched to Nelson’s apartment at
about 7:00 p.m. According to Kimball, Amareah was lying on the floor with no
pulse or breathing, and he began performing CPR. Nelson stated to Kimball that
the baby was on the floor when he woke from a nap on the couch. According to
Deputy Sherriff Jesse Smith, Nelson stated that he woke from his nap and saw his
nearly two-year-old son holding Amareah around her neck. Detective Michael
Babycz testified that when he interviewed Nelson at the hospital, Nelson stated that
he fell asleep on the couch and, when he woke, he saw his son holding Amareah to
his chest with his arms around her. During a later interview, Detective Craig
Raisanen testified that Nelson stated that he tried to give Amareah a bottle but she
was being fussy and, out of frustration, he pushed Amareah off the bed and she hit
her head on the floor. Detective Raisanen detailed several different versions of
events that Nelson gave various investigators, which included that Nelson “was
hammering” Amareah’s chest while trying to perform CPR.
Though CPR did restart Amareah’s heart and breathing, she was removed from life
support when doctors determined she had no chance of recovering from her injuries.
Amareah died at around 11:00 p.m. that evening.
According to Nelson, who testified at trial, he was in bed with Amareah and trying
to give her a bottle when he drifted off to sleep. When he woke up, he noticed that
Amareah was falling off the bed, he saw her go over the side, and Amareah was not
breathing after she landed on the floor. While performing CPR, he pounded on
Amareah’s chest, hoping that it would clear her airway or restart her heart. Nelson
testified that he told people different things during interviews to get them to stop
questioning him.
Washtenaw County Medical Examiner Jeffrey Jentzen testified that he performed
an autopsy on Amareah and discovered that she had a lacerated liver, a skull
fracture, cranial hemorrhaging, and brain swelling. Jentzen testified that
Amareah’s specific brain injuries most commonly resulted from high-velocity
injuries. Peter Strouse, a pediatric radiologist, testified that x-rays and CT scans of
Amareah showed that she had 19 bone fractures in various states of healing,
including 15 rib fractures, a skull fracture, and fractures to bones in her arms, legs,
and hands. Strouse opined that Amareah’s rib fractures were consistent with child
abuse and that, while fractures can occur from CPR, CPR did not explain the
placement of Amareah’s specific fractures. In contrast, Oakland County Chief
Medical Examiner Ljubisa Dragovic testified that the injuries to Amareah’s chest
and abdomen were consistent with “vigorous resuscitation efforts.” However,
Dragovic testified that a fall of the nature that Nelson described did not explain the
victim’s skull fracture.
At trial, Amareah’s mother testified that Nelson had previously committed
domestic violence against her and Amareah’s brother. Amareah’s mother testified
that Nelson would sometimes “snap” and punch, kick, or choke her. She also
observed marks on Amareah’s brother and, when she confronted Nelson, Nelson
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stated that he had spanked the toddler with a belt. However, Amareah’s mother
never saw Nelson act violently toward Amareah.
The trial court [sitting without a jury] found Nelson guilty of first-degree child
abuse and felony murder. Specifically, it found that Nelson had repeatedly lied
about the events leading to Amareah’s death and that the evidence was consistent
with Nelson throwing or punching Amareah to death.
People v. Nelson, No. 326343, 2016 WL 2731121, *1-2 (Mich. Ct. App. May 10, 2016).
The trial court sentenced Nelson to life in prison without parole for felony murder, and a
lesser concurrent sentence for child abuse. On direct appeal, Nelson raised the same issues
presented here in his habeas corpus petition. The Michigan Court of Appeals affirmed, and the
state supreme court denied leave to appeal. Id. at *2-5; People v. Nelson, 500 Mich. 883, 886
N.W.2d 621 (2016).
Nelson raised the following claims in his habeas petition:
I.

His due process rights were violated when he was convicted of first-degree
child abuse and felony murder predicated on first-degree child abuse
without sufficient evidence to prove those offenses beyond a reasonable
doubt.

II.

He was denied a fair trial by the introduction of irrelevant and highly
prejudice [sic] evidence concerning prior injuries sustained by the decedent.

III.

His conviction for first-degree child abuse must be vacated because his
conviction for this offense as well as felony murder predicated on the same
offense violate double jeopardy.

The respondent opposes the petition contending that the other acts evidence and double jeopardy
claims should not be reviewed here because they are “procedurally defaulted,” and all of the claims
lack merit.
The “procedural default” argument is a reference to the rule that the petitioner did not
preserve all his claims in the trial court by timely objection, and the state court’s denial of those
claims on that basis is an adequate and independent ground for the denial of relief under state law,
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which is not reviewable here. Coleman v. Thompson, 501 U.S. 722, 750 (1991). That defense
does not apply here. The petitioner’s lawyer raised the evidence issue in the trial court, and the
court of appeals did not rely on any flaw in the petitioner’s presentment of either claim when it
denied relief, addressing the merits of both, albeit reviewing the double jeopardy issue for plain
error.
Moreover, it is not necessary to address this procedural question. It “is not a jurisdictional
bar to review of the merits,” Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal
courts are not required to address a procedural-default issue before deciding against the petitioner
on the merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary,
520 U.S. 518, 525 (1997) ). The procedural default will not affect the outcome of this case, and it
is more efficient to proceed directly to the merits.
II.
Certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]”
the standard of review federal courts must apply when considering an application for a writ of
habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel.
See Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court may grant relief only if the state
court’s adjudication “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 if the adjudication “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.” 28
U.S.C. § 2254(d)(1)-(2).
“Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings,
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as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall, 572 U.S. 415, 419
(2014) (quotation marks and citations omitted). “As a condition for obtaining habeas corpus from
a federal court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103, (2011). The distinction between mere error and an objectively
unreasonable application of Supreme Court precedent creates a substantially higher threshold for
obtaining relief than de novo review. Mere error by the state court will not justify issuance of the
writ; rather, the state court’s application of federal law “must have been objectively unreasonable.”
Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (quotation
marks omitted)). The AEDPA imposes a highly deferential standard for evaluating state-court
rulings, and demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett,
559 U.S. 766, 773 (2010).
A.
Nelson contends that the prosecution did not present sufficient evidence to convict him of
first-degree child abuse and first-degree felony murder, because it did not establish that he
knowingly or intentionally harmed Amareah, the child victim. The Michigan Court of Appeals
disagreed, finding ample circumstantial evidence of an assault on the child causing her death.
Summarizing the trial evidence, that court noted that the child was found unresponsive,
shortly after a loud banging was heard by a witness in an adjoining apartment. The child’s body
had multiple fractures, and the fatal injuries were consistent with high-velocity impacts. Nelson
had a history of explosive behavior, and he had struck his partner and other child before when he
had “snapped.” And Nelson had given multiple inconsistent statements explaining the source of
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Amareah’s injuries.
“[T]he 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). On direct appeal, review of a sufficiency of
the evidence challenge must focus on 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a habeas
corpus proceeding, “[t]he Jackson standard must be applied ‘with explicit reference to the
substantive elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d
347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16)).
As with the state appellate court on direct appeal, a federal habeas court “does not reweigh
the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by
the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). “[A] reviewing court ‘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.’” McDaniel v. Brown, 558 U.S. 120, 133 (2010) (quoting Jackson,
443 U.S. at 326).
The state courts faithfully applied these principles in light of the state-law definitions of
these offenses. Under Michigan law, any murder committed during the perpetration of a felony is
first-degree murder. Mich. Comp. Laws ' 750.316. The elements of felony murder are: (1) the
killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very
high risk of death or great bodily harm with knowledge that death or great bodily harm was the
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probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the
commission of any of the felonies specifically enumerated in the statute. See Matthews, 319 F.3d
at 789 (citing People v. Carines, 460 Mich. 750, 759, 597 N.W.2d 130 (1999)). To convict a
defendant of the underlying predicate felony of first-degree child abuse, the prosecution must
prove that the defendant “knowingly or intentionally cause[d] serious physical or serious mental
harm to a child.” Mich. Comp. Laws ' 750.136b(2); see People v. Maynor, 470 Mich. 289, 295,
683 N.W.2d 565 (2004); People v. Gould, 225 Mich. App. 79, 87, 570 N.W.2d 140 (1997).
The evidence presented to the trial judge established these elements beyond a reasonable
doubt. A neighbor testified that a loud banging sound emanated from Nelson’s apartment. Shortly
afterward, the child was found unresponsive. The medical and expert testimony demonstrated that
the victim had suffered injuries consistent with high velocity impacts and that she had 19 bone
fractures at various stages of healing at the time of her death. The victim’s mother testified about
Nelson’s acts of domestic violence against her and her son when he was angry, and Nelson
admitted that he was upset with the infant victim that evening. That evidence was sufficient to
establish that Nelson acted with the requisite intent to support his first-degree felony murder and
first-degree child abuse convictions. Additionally, Nelson changed his story several times.
Consequently, a rational trier of fact could discount his version of events.
Nelson challenges the credibility of witnesses and the trial court’s evaluation of the
evidence presented at trial. But that challenge is misdirected. It is the job of the fact-finder at trial,
not a federal habeas court, to resolve evidentiary conflicts. Jackson, 443 U.S. at 326; Martin, 280
F.3d at 618; see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas
corpus court faced with a record of historical facts that supports conflicting inferences must
presume C even if it does not affirmatively appear in the record C that the trier of fact resolved
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any such conflicts in favor of the prosecution, and must defer to that resolution.”). The trial court’s
verdict flowed from a reasonable interpretation of the evidence presented.
Nelson is not entitled to habeas corpus relief on his first claim.
B.
Next, Nelson contends that the state trial judge erred when he allowed the prosecution to
present — and then considered — evidence of the child victim’s prior injuries and his own earlier
acts of domestic violence against the victim’s mother and brother. In the state appellate court, he
presented the claim as a violation of Michigan Rule of Evidence 404(b). The state court treated it
as such, and, after parsing the elements of that evidentiary rule, found no error. Nelson, 2016 WL
2731121 at *3-4.
An alleged violation of state evidence Rule 404(b) is not cognizable on habeas review.
“[S]tate-court evidentiary rulings cannot rise to the level of due process violations unless they
‘offend[] some principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana
v. Egelhoff, 518 U.S. 37, 43 (1996)). Admission of evidence that a defendant committed a criminal
act other than the charged offenses is not fundamentally unfair, particularly when it is not offered
to prove the defendant’s general bad character or propensity to commit the charged crime.
The state courts viewed that other-acts evidence as tending to prove Nelson’s intent to
injure the child, not to establish his general bad character. The prosecutor did not make a
propensity argument. But even if he had made such an argument, the Supreme Court has declined
to hold that similar other-acts evidence is so extremely unfair that its admission violates
fundamental conceptions of justice, Dowling v. United States, 493 U.S. 342, 352B53 (1990),
although it has found “no question that propensity would be an ‘improper basis’ for conviction,”
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Old Chief v. United States, 519 U.S. 172, 182 (1997). Such matters are more appropriately
addressed in codes of evidence and procedure than under the Due Process Clause. Id. at 352. Put
more directly, “[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); see also Fed. R. Evid. 413 and 414 (allowing
such evidence in federal criminal trials involving sexual misconduct).
This claim will not support issuance of a writ of habeas corpus.
C.
Lastly, Nelson argues that convicting him of both felony murder and the predicate felony
of first-degree child abuse violates the Double Jeopardy Clause. The state court of appeals, citing
the Fifth Amendment, proceeded to analyze the issue by comparing the elements of the two crimes
— first-degree felony murder and first-degree child abuse — to see if they amounted to the same
offense. That analytical test is sometimes referred to as the Blockburger test, after Blockburger v.
United States, 284 U.S. 299, 304 (1932). That test “inquires whether each offense contains an
element not contained in the other; if not, they are the same offense and double jeopardy bars
additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696
(1993); Blockburger, 284 U.S. at 304.
When looking at the discrete offenses of first-degree felony murder and first-degree child
abuse, it does appear that one contains elements that the other does not. For instance, as the state
court of appeals noted, felony-murder requires proof that the defendant killed someone, whereas
first-degree child abuse does not. Nelson, 2016 WL 2731121 at *2. But that analysis ignores the
reality that felony-murder also requires proof of an underlying felony, and when that enumerated
felony also is a count of conviction, the elements of that felony are completely subsumed into the
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felony-murder count, thereby satisfying Blockburger’s same elements test. See People v. Jordan,
No. 342634, 2019 WL 1049689, at *2 (Mich. Ct. App. Mar. 5, 2019) (Shapiro, J., concurring) (“In
every felony murder case, each element of the predicate felony must be proven beyond a
reasonable doubt. Thus, in each case, the elements of the predicate felony are fully incorporated
in the elements of felony murder. In my view, conviction and sentence of felony murder and the
predicate offense fails the Blockburger test and constitutes multiple punishments in violation of
the Double Jeopardy Clause. Nonetheless, in light of binding Michigan Supreme Court precedent,
I concur.”).
However, although the Double Jeopardy Clause “protects against multiple punishments for
the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), it does not prohibit a state
from defining one act of conduct to constitute two separate criminal offenses. As the Supreme
Court has explained, “[b]ecause the substantive power to prescribe crimes and determine
punishments is vested with the legislature . . ., the question under the Double Jeopardy Clause
whether punishments are ‘multiple’ is essentially one of legislative intent.” Ohio v. Johnson, 467
U.S. 493, 499 (1984). Therefore, “even if the two statutes proscribe the same conduct, the Double
Jeopardy Clause does not prevent the imposition of cumulative punishments if the state legislature
clearly intends to impose them.” Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986).
When “a legislature specifically authorizes cumulative punishments under two statutes, . . . a
court’s task of statutory construction is at an end and the prosecutor may seek and the trial court
or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v.
Hunter, 459 U.S. 359, 368-69 (1983).
The Michigan Supreme Court has held that the state legislature intended such multiple
punishments under its felony-murder statute. In People v. Ream, 481 Mich. 223, 240, 750 N.W.2d
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536, 546 (2008), the court held “that convicting and sentencing a defendant for both first-degree
felony murder and the predicate felony does not violate the ‘multiple punishments’ strand of the
Double Jeopardy Clause . . . .” Its conclusion has been fairly criticized as a misapplication of
Blockburger test. See id. at 244, 750 N.W.2d at 548 (Cavanagh, J., dissenting) (“The majority
misapplies the Blockburger test by comparing the abstract elements of a compound offense to one
of its predicate offenses, rather than comparing the actual elements that were established at trial
and that actually comprise the defendant’s convictions. In addition, the majority errs by accepting
the result reached by its application of the Blockburger test without considering the fundamental
matter of legislative intent.”). Nonetheless, when a federal habeas court determines whether a
state legislature intended to authorize separate, cumulative punishments under the circumstances
presented, the Court “must accept the state court’s interpretation of the legislative intent for the
imposition of multiple punishments.” Brimmage, 793 F.2d at 1015; see also Hunter, 459 U.S. at
368.
The petitioner’s argument on this claim does not support the issuance of a habeas corpus
writ.
III.
None of the petitioner’s claims presents a basis to issue a writ of habeas corpus under 28
U.S.C. § 2254(d). The state courts’ decisions in this case were not contrary to federal law, an
unreasonable application of federal law, or an unreasonable determination of the facts. The
petitioner has not established that he is presently in custody in violation of the Constitution or laws
of the United States.

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Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: May 3, 2019

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first-class U.S. mail on May 3, 2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI

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