United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS
PAUL D. BORMAN, District Judge.
Sid Terrell Jones, ("petitioner"), confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for first-degree felony murder, Mich. Comp. Laws § 750.316, and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.
Petitioner was convicted following a jury trial in the Kent County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
On March 27, 2008, at approximately 5:00 a.m., the body of Janeanne Lusk was found in the parking lot of Viking Truck on Linden Street in Wyoming, Michigan. Lusk was a prostitute. Lusk's body contained three stab wounds: a superficial wound behind her right ear, one to her right arm, and one in the upper portion of the left side of her abdomen. Dr. Stephen Cohle, the forensic pathologist, testified that because there was a lack of blood from Lusk's wound to her abdomen, he opined that the wound to her abdomen was inflicted when she was nearly dead. A tissue was discovered in Lusk's vaginal area.
Officer Paul Pena, who is a police officer with the city of Wyoming, testified that he was one of the first officers to respond to the call that a body has been discovered. Officer Pena noticed a used condom near the victim, a broken cellphone, a lens from a pair of glasses, two shoes, and a cigarette butt on the scene. A second condom and a pair of glasses with the lens missing were also found at the scene. South of where the body was discovered, there was pooling of blood and some blood spatter, as well as what appeared to be a trail of blood leading to the southwest around the building. On the southwest corner of the building, there was a pool of blood and broken glass, which appeared to be from a vehicle. There was blood in the glass. There was also blood smeared on the ground at that location. In addition, there was a trail of blood leading from the glass to a dumpster. Officer Kevin Meaney, who was a police officer with the city of Wyoming and who also responded to the scene, testified that he thought that the glass and blood evidence reflected a struggle or that someone was dragged.
Jacob Gomez, who worked for Viking Truck, recalled seeing a condom on March 26, 2008, in the parking lot. He indicated that the condom was not cleaned up. Gomez was aware that Viking Truck employees would smoke in the lot. Kenneth Horton, who also worked at Viking Truck, testified that on March 27, 2008, he observed the "huge quantity" of glass on the ground in the lot and indicated that it had not been there the previous day.
Laura Dykstra was a prostitute who testified that on March 25, 2008, she was working the streets when defendant Jones picked her up in a sport utility vehicle. They discussed having sexual intercourse. Dykstra and Jones arrived at the Viking Truck parking lot around "eleven o'clock or later." Jones told Dykstra that he had "$43 whole dollars, " and Dykstra replied "[t]hat's fine." They both got into the back seat and had sexual intercourse using a condom. Dykstra did not see what Jones did with the condom afterwards, but she assumed that he threw it on the ground in the parking lot. They both got back into the front seat. Dykstra was subsequently getting dressed when Jones told her to get out. Dykstra saw Jones holding what appeared to be a switchblade knife. When Dykstra got out of the vehicle, she noted the license plate number as being "BCE 1403." Jones drove away. Dykstra did not call the police.
Dykstra was in the Kent County jail on March 27, 2008. After Deputy Melissa Frederick, who worked at the Kent County jail, was informed that a prostitute was killed the night before, she told Dykstra that she was lucky that she was not the person who was killed. Dykstra then informed Deputy Frederick about what happened to her on the evening of March 25, 2008. Dykstra subsequently found out that Lusk was the prostitute who was killed. Dykstra knew Lusk and smoked crack cocaine with her on March 25, 2008. Dykstra identified Jones in a photographic lineup and later at trial. Jones was charged with the felonious assault of Dykstra, but that charge was dismissed.
The DNA on both condoms found at the scene matched Jones's DNA. However, the tissue contained DNA of an unidentified male. The DNA of this unidentified male was also found on the outside of one of the condoms. David Hayhurst, who is a forensic scientist, theorized that most likely an unidentified male deposited sperm in Lusk's vaginal tract and the DNA of that male was then transferred onto the outside of the condom when another male was wearing the condom while later having sexual intercourse with Lusk. Upon a search of Jones's home, police found condoms that were the same type of condoms that they had found at the crime scene.
Jones's fiancee owned a Ford Escape. The license plate number on Jones's fiancee's vehicle was BCE 4103. Jones's fiancee indicated that Jones was driving her Ford Escape on the evenings of March 25, 2008, and March 26, 2008. Jones picked his fiancee up when she got out of work a few minutes after 12:00 a.m. on March 26, 2008, and March 27, 2008. When Jones picked up his fiancee at work a few minutes after 12:00 a.m. on March 27, 2008, she noticed that the front passenger window was broken on her Ford Escape. Jones indicated that "some kid" broke the window by throwing a rock at it.
Jones testified at trial. Jones admitted to picking up prostitutes while driving his fiancee's vehicle. He also admitted to having sexual intercourse with Dykstra on March 25th. Jones indicated that he paid Dykstra $20, but she wanted more money. Jones asserted that Dykstra indicated that that was why she "don't date ns." Feeling insulted, Jones stopped the vehicle and told her to get out. According to Jones, Dykstra told him that she was not going to get out, so Jones said, "You're going to get the f-k out right now." Dykstra then got out of the vehicle. Jones denied pulling a knife on Dykstra. Jones argued during trial that Dykstra lied about him possessing a knife so that she could provide valuable information on the case and thus become a trustee at the jail.
Jones admitted that he picked up Lusk on the evening of March 26th. He also admitted to having sexual intercourse with Lusk, using a condom, and discarding it. In addition, he admitted that the sexual intercourse with Lusk occurred at the same location as it did with Dykstra. Jones indicated that after he had sexual intercourse with Lusk, she got out of the vehicle and was standing outside making a telephone call on her cellular telephone. He subsequently rolled down his window and told her that he only had $15. Jones asserted that Lusk said "that's b-s-t" and yanked the vehicle's door, causing the window to smash. Jones admitted that a surveillance videotape showed him leaving the scene at 11:38 p.m. Jones then picked up his fiancee at work. He admitted that he lied about how the window was broken, but denied stabbing Lusk.
During trial, the prosecutor questioned an evidence technician with the Wyoming police department. She testified that she took photographs of Jones for the primary purpose of documenting whether he had any injuries and also to document Jones's stature. The technician indicated that when taking these photographs, only six days after Lusk was murdered, she did not note any injuries to Jones's body. During cross-examination, the technician confirmed that she did not notice any recent cuts, abrasions, scratches, bruises, or anything that appeared to have been the result of a scuffle or fight with another person.
People v. Jones, No. 293773, pp. 1-3 (Mich.Ct.App. July 14, 2011).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 490 Mich. 913, 805 N.W.2d 206 (2011)(Table).
Petitioner filed a post-conviction motion for relief from judgment, which was denied by the trial court. People v. Jones, No. 08-11625-FC (Kent County Circuit Court, September 12, 2012).
While petitioner's post-conviction motion was pending in the state courts, petitioner filed a petition for writ of habeas corpus, which was held in abeyance pending the completion of state postconviction proceedings by petitioner. The Court also administratively closed the case. Jones v. Rivard, No. 2:12-CV-13864, 2012 WL 4356774 (E.D. Mich. September 24, 2012).
The Michigan appellate courts denied petitioner's post-conviction appeal. People v. Jones, No. 315230 (Mich.Ct.App. July 5, 2013); lv. den. 495 Mich. 913 , 840 N.W.2d 324 (2013)(Table).
On March 18, 2014, the Court reopened the petition to the Court's active docket, amended the caption, and permitted petitioner to file an amended petition. Petitioner seeks habeas relief on the following grounds:
I. Conviction obtained by a violation of privilege against self-incrimination.
II. The defendant was denied a fair trial because of unfounded assertions of perjury by the prosecutor.
III. The prosecutor exceeded the bounds of Mich. R. Evid. 609.
IV. The prosecution referred to its witness as a victim throughout trial and asked the jury to ...