United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER RESCINDING THE ORDER OF REFERENCE TO THE MAGISTRATE JUDGE [Dkt. 25], GRANTING MOTION TO FILE SUPPLEMENTAL AUTHORITY [Dkt. # 31], DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
JOHN CORBETT O'MEARA, District Judge.
Terry Ceasor, ("petitioner"), presently residing in Port Huron, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by the Michigan Innocence Clinic, petitioner challenges his conviction for first-degree child abuse, M.C.L.A. 750.136b(2). For the reasons stated below, the petition for writ of habeas corpus is DENIED. The Court will also rescind the Order of Reference to United States Magistrate Judge. The Court will grant petitioner's motion to file supplemental authority.
Petitioner was convicted following a jury trial in the St. Clair County Circuit Court.
Petitioner's counsel has provided a detailed statement of facts in their brief in support of the petition for writ of habeas corpus. Respondent has likewise provided a detailed factual summary of the case, which does not essentially conflict with petitioner's statement of facts. The Court will therefore accept the factual allegations contained within the habeas petition insofar as they are consistent with the record, because the respondent has not disputed them. See Cristini v. McKee, 526 F.3d 888, 894, n. 1 (6th Cir. 2008)("When a state's return to a habeas corpus petition fails to dispute the factual allegations contained within the habeas petition, it essentially admits these allegations"). Because the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Therefore, only a brief overview of the facts is required. See Nevers v. Killinger, 990 F.Supp. 844, 847 (E.D. Mich. 1997).
The victim in this case, Brenden Michael Genna, was the sixteen month old son of petitioner's girlfriend, Cheryl Genna. On October 2, 2004, Genna left her son with petitioner at his home while she and her daughter went swimming. When Cheryl Genna returned, petitioner was standing at the top of the stairs holding Brenden. Petitioner told Genna that Brenden fell and hit his head and was now unconscious. Genna testified that prior to that afternoon, Brenden had not fallen or received any bumps. Genna and petitioner took Brenden to the Port Huron Hospital. Brenden regained consciousness at the hospital and a decision was made to transfer him to Children's Hospital in Detroit, Michigan.
Genna admitted at trial that she lied to the investigating officers at the Port Huron Hospital, by telling them that she was present at petitioner's home when Brenden fell. Genna testified that she did not see any other injuries on Brenden while at Port Huron Hospital. Genna claimed that during the ambulance ride to Children's Hospital, Genna observed an oval mark on the back of Brenden's head with red dots in the mark. Genna then contradicted her earlier testimony by claiming she noticed a bite mark on Brenden's tongue while at Port Huron Hospital, but she admitted that she did not tell anyone at that hospital about it, nor could she recall telling anyone at Children's Hospital. Genna eventually admitted to Detective Sandy Jacobson of the St. Clair County Sheriff's Department that she had not been at the house when the incident happened. Genna later indicated on cross-examination that Brenden had previously fallen at daycare although she had earlier testified that he had never fallen.
Dr. Christopher Hunt was the doctor who treated Brenden when he was brought into the emergency room at the Port Huron Hospital. Brenden was an unresponsive child when he came into the hospital, although his vital signs were stable and he was breathing. Dr. Hunt did not observe any signs of trauma. After the CAT scan was completed, Dr. Hunt did a complete examination of Brenden's body, looking for trauma or any sign of what caused the injury. Dr. Hunt did not recall seeing any such injuries. The CAT scan showed a subdural hematoma with a slight mass effect. The decision was made to send Brenden to a hospital with a pediatric neurosurgeon.
Dr. Hunt spoke to petitioner twice. The first time, petitioner told Dr. Hunt that Brenden had fallen off a couch, hit his head on a table, and became unresponsive. During their second discussion, petitioner told Dr. Hunt he did not know how the injury happened.
In addition to the fact that petitioner had changed stories, Dr. Hunt was also troubled by the lack of external trauma, particularly soft tissue injury, which one would expect to see if the victim had fallen off the couch and had hit his head against a hard object.
Petitioner told two different statements to the police. In both statements, petitioner indicated that the victim had fallen off a couch and had hit his head. However, in the first statement, petitioner indicated that Cheryl Genna was present when the victim was injured while in the second statement, petitioner admitted that Cheryl was not present when the accident happened.
Dr. Holly Gilmer-Hill was qualified as an expert in the field of pediatric neurosurgery and Shaken Baby Syndrome. Dr. Gilmer-Hill was Brenden's attending physician at Children's Hospital. Dr. Gilmer-Hill spoke to Cheryl Genna when Brenden was admitted. Genna told Dr. Gilmer-Hill that she had been told Brenden fell from a couch. Genna did not tell Dr. Gilmer-Hill about any earlier fall. When Gilmer-Hill examined Brenden, she did not observe any external bruising or swelling of the scalp. The CAT scan revealed a subdural hemorrhage with some brain swelling with shift. Dr. Gilmer-Hill testified that this is considered a serious injury.
On October 6, 2004, Gilmer-Hill examined Brenden a second time. Brenden had been examined by an ophthalmologist who discovered retinal hemorrhages in both of Brenden's eyes. Dr. Gilmer-Hill testified that it took a good deal of force to cause retinal bleeding. Dr. Gilmer-Hill opined that the combination of subdural blood with retinal hemorrhage is diagnostic for child abuse. Dr. Gilmer-Hill indicated that retinal hemorrhage is caused by "By severally being shaken or slammed onto a surface, either hard or soft. Usually repeatedly." Based on her training and experience and her treatment of Brenden, Gilmer-Hill did not believe his injuries were the result of an accident. Dr. Gilmer-Hill further testified that a fall from a couch onto a carpeted floor could not have caused these type of severe injuries.
On cross-examination, petitioner's trial counsel confronted Dr. Gilmer-Hill with articles by John Plunkett, M.D. and Jennian Geddes, M.D. which claim that the accepted mechanism of Shaken Baby Syndrome is incorrect. Petitioner's counsel also questioned Dr. Gilmer-Hill about whether Brenden's recent vaccinations may have caused the subdural bleeding. Dr. Gilmer-Hill disagreed with both positions. Dr. Gilmer-Hill noted that Plunkett's theory was inconsistent with "the body of evidence that's out there." Dr. Gilmer-Hill also disagreed with the idea that a child can suffer a severe injury like this and be lucid for up to two days before the injury begins to have an effect. Dr. Gilmer-Hill believed hat the time would be "several hours, " at most, and not even that long when the injury produced both a subdural hematoma and retinal hemorrhaging. Dr. Gilmer-Hill believed that this type of severe trauma would cause symptoms to appear immediately. When ...