The opinion of the court was delivered by: Honorable Arthur J. Tarnow
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ISSUING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
Petitioner Kevin Tower, a state inmate currently confined at the Ryan Correctional Facility in Detroit, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for two counts of first-degree premeditated murder, two counts of felony murder, felony firearm, unlawfully driving away an automobile, forgery, and uttering and publishing. He was sentenced to life in prison without parole for the two counts of first-degree-premeditated-murder convictions, a consecutive two-year term for the felony-firearm conviction, forty to sixty months for unlawfully driving away a vehicle, and 112 to 168 months for each of the uttering and publishing and forgery counts. For the reasons stated, the Court will deny the petition. The Court, however, will issue Petitioner a certificate of appealability and an application to proceed on appeal in forma pauperis.
The Michigan Court of Appeals set forth the relevant facts as follows:
This case arose out of the murders of defendant's uncles, Ron and Paul Tower, aged fifty-seven and forty-one, respectively, in July 1995. The Tower brothers were single, lived together at a farmhouse in Remus, Michigan, and were mentally impaired to varying degrees. Ron Tower could not read, could write only his name, was not gainfully employed but performed chores around the farmhouse, was diabetic and depended on his brother for medication, and was extremely shy. Paul Tower could read and write, was employed as a custodian, maintained and administered his own bank accounts, and owned two vehicles, a truck and a 1992 red Ford Escort. The Tower brothers were last seen alive on the afternoon of July 5, 1995, with defendant, at their farmhouse. On July 6, 7, and 8, 1995, withdrawals were made from Paul Tower's savings account in Big Rapids. On July 9, 1995, Paul Tower's red Escort was abandoned at an accident scene in Grand Rapids. A witness later identified defendant as the driver of that vehicle and as having fled the scene. On July 13, 1995, human blood and hair were found in various buildings at the Tower farmhouse. On that date, Mecosta County Sheriff's Detective Richard Rau interviewed defendant, and on the following day Rau arrested defendant for uttering and publishing and unlawfully driving away Paul Tower's Escort.
On July 26, 1995, partially decomposed bodies matching descriptions of Paul and Ron Tower were found in a remote area of Mecosta County. Both had been stabbed and shot with a.22 caliber weapon. Around August 15, 1995, defendant was additionally charged with two counts of murder, felony firearm, and forging signatures on savings withdrawal slips drawn on Paul Tower's savings account on July 6, 7, and 8, 1995. Defendant was convicted as charged and his motion for new trial was denied.
People v. Tower, No. 203366, 1999 WL 33446494, at *1 (Mich.Ct.App. Apr. 23, 1999).
Following his sentencing, Petitioner filed an appeal of right in the Michigan Court of Appeals, raising what now forms his first habeas claim as well as six other claims that are not presented in this petition. The Court of Appeals affirmed his convictions. People v. Tower, No. 203366, 1999 WL 33446494 (Mich.Ct.App. Apr. 23, 1999).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Tower, --- Mich. ---, 606 N.W.2d 656 (1999). Petitioner did not file a writ of certiorari in the United States Supreme Court.
On December 26, 2000, Petitioner filed a post-conviction motion, pursuant to Mich.Ct.R. 6.508(D), in the state court, raising what now form his remaining habeas claims, as well as a few claims that he did not present in this petition. After holding an evidentiary hearing, the trial court, in a twelve-page opinion, denied the motion. People v. Tower, No. 95-3702-FH (Mecosta County Circuit Court, Oct. 11, 2004).
Subsequently, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, but the application was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Tower, No. 265652 (Mich.Ct.App. May 4, 2006). Petitioner's application for leave to appeal the Court of Appeals' decision filed in the Michigan Supreme Court was denied on October 31, 2006, "because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Tower, 477 Mich. 913, 722 N.W.2d 807 (2006).
Petitioner filed the pending habeas petition, raising the following claims:
I. The admission of Petitioner's letters violated his Fourth, Fifth, and Fourteenth Amendment rights.
II. Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and on direct appeal.
III. The prosecutor's statement during rebuttal, that Petitioner was taking a plea to the property crimes deprived him of his Fifth, Sixth, and Fourteenth Amendment rights to have all elements of the criminal offense proven by the prosecution beyond a reasonable doubt.
IV. Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated because neither uttering and publishing, nor forgery, nor unlawfully driving away an automobile can be the underlying felony to the charge of felony murder in Michigan.
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 ...