United States District Court, E.D. Michigan
Christopher Fundaro, Petitioner, Pro se, MANISTEE, MI.
For Cindi Curtin, Respondent: John S. Pallas, Laura Moody, Michigan Department of Attorney General, Appellate Division, Lansing, MI.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS
Honorable Terrence G. Berg, United States District Judge.
This matter is before the Court on Petitioner Christopher Fundaro's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Oakland Circuit Court of first-degree murder and was sentenced to mandatory life imprisonment. See Mich. Comp. Laws § 750.316. The petition raises a single claim: Petitioner's statement to the police was rendered involuntary by a representations made by the interrogating officers that Petitioner acted in self-defense. The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability and deny permission to proceed on appeal in forma pauperis.
I. Facts and Procedural History
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, 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):
The prosecution charged Fundaro with felony-murder arising from the stabbing death of John Cox at his store, Three Doors Down, in Pontiac, Michigan. Cox's wife testified that Three Doors Down was a small boutique located in a strip mall. Cox mostly catered to young adults; he sold T-shirts, jewelry, handbags, tie-dye, and posters. She stated that Cox usually started the day with $150 in the register.
Geno Clemmons testified that he knew Fundaro and that for a time he let Fundaro stay at his home. However, the living arrangements did not work out and he told Fundaro to leave in October 2009. Clemmons admitted that he had used drugs in the past and that he had a criminal record.
Clemmons stated that on October 22, 2009, his girlfriend drove him to the gas station near the strip mall where Three Doors Down was located; they went there for gas and cigarettes. He said that, as he got out, he noticed Fundaro " in front of the gas station kind of pacing." Fundaro " approached me and said he had a lick to hit...." Clemmons understood that Fundaro was asking him to participate in the robbery, but he refused and they went their separate ways. Clemmons said it was between 2:30 and 3:30 in the afternoon.
Hikmat Jajo testified that he was working at the dollar store located a few doors from Cox's store when, at around 5:30 pm., a man came into his store and told him to call the police, but did not explain why. He followed the man after he left his store and saw him standing in front of Three Doors Down. Jajo said he went down to Three Doors Down and looked into the store; he saw a man lying face down with " his shirt up and most of his stuff on the floor." He returned to his store and called the police. The police arrived in just a few minutes.
Raymond Wiggins testified that he was a patrol officer and that he went to Three Doors Down after receiving a " man down" call at 5:30 pm. When he arrived, he saw a man lying face down in a pool of blood with a hammer under his left arm. He said the man did not appear to be breathing and " was already turning [bluish], purplish in the face." The store's items had also been tossed about as if there had been a struggle. Other testimony established that the store's cash register was found on the floor, broken, and with no paper currency in it. An expert pathologist testified that Cox had been stabbed nine times, which included five stabs to his back. One of the stabs to Cox's back penetrated his thoracic cavity and went into his lung; this stab wound was fatal.
Brian McLaughlin testified that he was a patrol sergeant and that he responded to Three Doors Down. He received information that there were two possible suspects: one dressed in blue and the other in gray and balding. McLaughlin sent an officer, Craig Pesko, into a nearby high-crime neighborhood to canvass for the suspects.
Pesko testified that he had driven into the nearby neighborhood when one of his dogs began to bark. He looked and saw a man wearing a gray hooded sweatshirt walking between a fence and a garage. The man appeared to be bald. Pesko got out of his car and went to the fence line; the man was gone, but he saw a nearby apartment building and observed the man on the other side of a fence surrounding the apartment. Pesko followed the line of the man's path, but lost sight of him. Pesko then searched a nearby open parking lot and discovered the man, later identified as Fundaro, hiding under a trailer. He took Fundaro into custody and turned him over to McLaughlin. Pesko said that the parking lot was around two blocks from Three Doors Down.
McLaughlin said that he drove to Pesko's location after Pesko radioed that he had taken a suspect into custody. McLaughlin patted Fundaro down and found $171 in cash in his front pocket: four twenties, seven tens, one five and sixteen ones. He said that the cash was in order and folded; he also said that Fundaro did not have any cash in his wallet. McLaughlin also found two cell phones. When he opened one of the cell phones, a " Three Doors" banner appeared on the screen.
Cox's wife testified that Cox was supposed to pick up their fifteen-year-old daughter from school at 7:30 that night. When her husband and her daughter had not arrived home by 8:15 pm., she became worried and called her daughter. Her daughter told her that " Dad hasn't picked me up yet." So Cox's wife called his cell phone and a detective answered. Although reluctant to speak over the phone, the detective eventually admitted that her husband was dead.
Detective Sergeant Steven Troy testified that he and detective Steven Wittebort interrogated Fundaro after he was brought into custody. Fundaro admitted that he spoke with Clemmons at the gas station, but denied that he had anything to do with Cox's death. Fundaro told him that a woman paid him some cash that she owed him earlier that day and that he had found Cox's cell phone.
Troy said that, because Fundaro was not responding well to their questioning, they decided to bring in an officer from the auto-theft unit, Peter Mistretta. Mistretta was investigating an auto theft with which Fundaro might have been involved. He explained that he thought Fundaro might respond better to Mistretta because he had worked undercover and " has a different look": he has " long hair" and wears a " goatee." He said that Mistretta was also a very good interviewer. After Mistretta arrived, Troy watched the interview on video from another room.
Mistretta testified that Troy called him and that he came over to interview Fundaro about the auto theft. After Fundaro admitted that he stole the car, the conversation turned to Cox's death. Mistretta said ...