United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
GEORGE CARAM STEEH, District Judge.
Timothy Dawson, ("petitioner"), confined at the Lakeland Correctional Facility in Coldwater, 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 murder, M.C.L.A. 750.316. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Kent County Circuit Court. Petitioner's conviction arises from the strangulation of his wife.
Petitioner's conviction was affirmed on appeal. People v. Dawson, No. 289931, 2010 WL 2629784 (Mich. Ct. App. July 1, 2010); lv. den. 488 Mich. 995, 791 N.W.2d 465 (2010).
Petitioner filed a petition for writ of habeas corpus, seeking relief on the claims he raised on his direct appeal in the state courts. See Dawson v. Rapelje, No. 2:11-CV-15626 (E.D. Mich.). Petitioner moved to hold the petition in abeyance so that he could return to the state courts to exhaust additional claims. The Court denied the motion to stay. In response, petitioner moved to voluntarily dismiss his petition for writ of habeas corpus, which was granted. See Dawson v. Rapelje, No. 2:11-CV-15626 (E.D. Mich. May 23, 2012).
Petitioner filed a post-conviction motion for relief from judgment with the state courts, which was denied. People v. Dawson, No. 08-03462-FC (Kent County Circuit Court, August 28, 2012). The Michigan appellate courts denied petitioner leave to appeal. People v. Dawson, No. 314882 (Mich.Ct.App. October 23, 2013); lv. den. 495 Mich. 1005, 846 N.W.2d 556 (2014).
In his current petition, petitioner seeks habeas relief on the following grounds:
I. The petitioner was denied due process of law pursuant to the Fourteenth Amendment to the United States Constitution when the state trial court allowed the prosecution to use other acts ("bad acts") that raised an inference that the petitioner had a propensity to commit the charged crime, and when the prosecutor engaged in misconduct by relying on this evidence to argue about the type of person petitioner was.
II. The petitioner was denied his constitutional rights under the Sixth and Fourteenth (Due Process) Amendments of the United States Constitution when the petitioner was deprived of his right to compulsory process, confrontation and his guaranteed right to present a defense when the trial court disallowed a witness (Dwin Dykema) to testify about the deceased's "kinky side" in order to show that the decedent had an alternative lifestyle.
III. The petitioner was denied his constitutional rights pursuant to the Due Process Claus of the Fourteenth Amendment of the United States Constitution when: (A) his conviction rests upon insufficient evidence and, (B) appellate counsel failed to raise the insufficient evidence on appeal.
IV. The petitioner was denied his constitutional rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution when: (1) government officials, while the petitioner was represented by counsel, used a known informant who had acted in direct concert with state officials during (purported) incriminating pretrial jail conversations with the petitioner, and these jailhouse conversations were used against the petitioner at the trial; (2) trial counsel neglected to file any type of pretrial exclusionary motions to thwart the incriminating testimony of the informant, nor did defense counsel object to the in-trial informant testimony, and (3) appellate counsel failed to brief the issue on the appeal as of right.
V. The petitioner was denied the effective assistance of: (A) trial and, (B) appellate counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution when counsel failed to obtain and investigate potential exonerating evidence in the form of telephone records from the Auto Owners Insurance Company (AIOC).
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 ...