United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
CARAM STEEH UNITED STATES DISTRICT JUDGE
Vince Mann seeks habeas corpus relief under 28 U.S.C. §
2254. He is a state prisoner in the custody of the Michigan
Department of Corrections pursuant to a conviction for
second-degree murder. He raises six claims for habeas relief.
Respondent argues that the petition is untimely, and that the
claims are procedurally defaulted and/or meritless. The Court
denies the petition.
Michigan Court of Appeals summarized the evidence adduced at
trial leading to Petitioner's convictions as follows:
This case arises out of the November 2006, death of Ricky
Arquette. Marisa Michalak testified that at approximately
2:30 a.m. on November 20, 2006, Randall Davis, along with
Robert Ashby and David Cochran, picked her up to take her to
Butler's house. Butler was Michalak's boyfriend. En
route to Butler's house, Michalak had Davis stop at a
condominium complex. At the complex, Arquette approached the
vehicle and offered Davis money for a ride. Davis agreed,
although none of them had ever met Arquette before, and
Arquette entered the vehicle. They then drove directly to
Butler's house was located on Mercedes Street in Redford,
Michigan. When Davis and his passengers arrived at the house,
Butler was not at home. A few minutes later, however, Butler
arrived with his cousin Joseph Schork and roommates Larnie
Neal and [Petitioner Vince] Mann. Everyone conversed and then
went inside the house. Michalak and Butler went upstairs to
Butler's bedroom. Shortly thereafter, Michalak heard
commotion downstairs and someone say, “Hey you gotta
get the f**k out of here, ” or words to that effect.
She then heard Mann call to Butler. Butler told Michalak to
stay upstairs and he went downstairs.
While Butler and Michalak were upstairs, everyone else
“hung out” downstairs. Arquette was loud,
obnoxious, and tried to do karate moves. When Arquette pushed
Mann in the chest, Mann told him not to put his hands on him.
When Arquette pushed him again, Mann told him to leave the
house. Mann then yelled upstairs to Butler and removed his
shirt in his bedroom. While in the bedroom, Mann told Schork
that Arquette had swung at him and said, “Let's get
him .” Mann then grabbed a glass beer bottle from the
kitchen, walked into the living room, and hit Arquette on the
left side of the head with the bottle when Arquette's
back was turned. The bottle shattered and Arquette fell to
the floor. Schork testified that Butler kicked Arquette in
the head as he was falling, and Butler later admitted to the
same to three additional witnesses. Several other witnesses
testified that as Arquette lay on the floor, Mann, Butler,
Schork, Ashby, and Davis surrounded him. They repeatedly
kicked him in the body, face, and head.
Thereafter, Mann, Butler, and possibly others carried
Arquette, who appeared unconscious, outside. They left
Arquette across the street on the neighbor's lawn and
then returned to the house. After a few minutes, Schork and
Davis went back outside because they saw Arquette walking
around. Davis then punched Arquette in the face.
Arquette's head and shoulder hit the neighbor's SUV.
He fell to the ground and hit his head on the cement with a
loud thud. Davis and Schork left Arquette unconscious on the
In the early morning hours of November 20, police and
paramedics arrived on the scene and took Arquette to the
hospital for treatment. Sergeant Eric Kapelanski subsequently
conducted a canvas of the neighborhood and spoke to Mann and
Butler. Butler told the sergeant that at approximately 3:00
a.m., they saw four or five men assaulting someone across the
street, but that the men had run away. Mann confirmed
Butler's story. Neal testified that after the sergeant
left, he, Mann, and Butler decided to remove a piece of the
living room carpeting because Arquette's blood was on it.
Arquette died in the hospital on November 28. Francisco Diaz,
an assistant medical examiner for Wayne County, performed the
autopsy on Arquette. Arquette had several cuts, abrasions,
and bruises on his face and head. Diaz found an accumulation
of blood under the scalp, primarily on the left side. There
was a one-inch linear fracture of the skull, a fracture of
the right orbital roof, a subdural hematoma on the left side,
bleeding into the coverings of the brain, and contusions on
the brain as a result of blunt trauma. Diaz explained that
blunt force means force applied with a non-sharp object or
surface. He opined that Arquette sustained multiple inflicted
blunt injuries due to being struck several times and that the
cause of death was inflicted blunt trauma, mainly to the
brain, and the complications resulting from being placed on a
ventilator. Diaz testified that the fracture to
Arquette's skull could have been caused by falling
unimpeded and hitting his head on an unyielding surface such
as a vehicle, concrete, or a foot kicking his head while he
was falling. He further testified that striking a person on
the head with a thick bottle and with enough force and
velocity could cause a subdural hematoma.
Ljubisa Dragovic, the chief medical examiner for Oakland
County and the only defense witness called, opined and
testified that the cause of death was blunt trauma to the
head and that the injuries to the base of Arquette's
skull resulted from Arquette's head striking an
unyielding surface, such as a floor, cement, or a metal
structure. According to Dragovic, Arquette's injuries
were not the result of being struck with a beer bottle or
kicked in the head. Dragovic explained that the injuries were
the result of a moving head striking an unyielding surface,
as opposed to a stationary head being struck by a moving
On the afternoon of November 29, Sergeant Kapelanski again
visited the Mercedes Street house. He told Butler, Mann, and
the other people present that Arquette had died and asked if
they knew anything else about the men who assaulted him.
Butler told the sergeant the same story. Neal and Michalak
indicated that they had not observed anything that night.
Later on November 29, Sergeant Kapelanski returned to the
Mercedes Street house after being called there by fellow
officers executing an unrelated search warrant in the house.
Based on the evidence Sergeant Kapelanski observed - blood on
the wall and bloody clothes in the washing machine - he
obtained a search warrant for the house. During the search of
the house, officers took photographs of the evidence. Then,
during a subsequent search, pursuant to a different warrant,
officers seized blood samples and a section of carpeting
showing that some of the carpeting had been cut out and
On November 30, Officer Eric Norman of the Redford Police
Department interviewed Mann and Butler individually while
they were in custody at the Redford jail. During Mann's
interrogation, he admitted to punching Arquette. Butler
admitted, in a written statement and during the
interrogation, to kicking Arquette in the head or neck once
People v. Mann, No. 281673, 2009 WL 3465495, at *1-3
(Mich. Ct. App. Oct. 27, 2009).
was tried in a joint trial with co-defendant Thomas Reed
Butler before separate juries in Wayne County Circuit Court.
He was convicted of second-degree murder, Mich. Comp. Laws
§ 750.317. On October 9, 2007, Petitioner was sentenced
as a third habitual offender to 32 to 70 years'
filed an appeal of right in the Michigan Court of Appeals,
raising these claims: (i) insufficient evidence; (ii) trial
court improperly admitted Petitioner's taped
interrogation which referenced Petitioner's prior
conviction; and (iii) trial counsel was ineffective for
failing to file a motion in limine to exclude reference to
the prior conviction. Petitioner also filed a motion to
remand for an evidentiary hearing regarding the claim that
the victim's mother improperly communicated with jurors
during a break. The Michigan Court of Appeals remanded the
case to the trial court for the limited purpose of an
evidentiary hearing and decision on whether Petitioner should
be granted a new trial because of extrinsic influences on the
jury. 8/5/09 Order, People v. Mann, No. 281673. On
remand, the trial court conducted an evidentiary hearing at
which eleven of twelve jurors testified. The twelfth juror
was unable to appear because of illness. The trial court
found no extrinsic influence on the jurors and denied the
motion for new trial. 1/22/09 Order, ECF No. 18-16. The
Michigan Court of Appeals then affirmed Petitioner's
convictions. People v. Mann, No. 281673, 2009 WL
3465495, at *1-3 (Mich. Ct. App. Oct. 27, 2009).
filed an application for leave to appeal in the Michigan
Supreme Court. He raised the same claims raised in the
Michigan Court of Appeals and a claim that his trial attorney
was ineffective in failing to request lesser included offense
jury instructions and an ineffective assistance of appellate
counsel claim. The Michigan Supreme Court denied leave to
appeal. People v. Mann, 486 Mich. 1050 (Mich. June
filed a petition for a writ of habeas corpus and a motion to
stay the petition on July 28, 2011. On August 25, 2011, the
Court granted the stay to allow Petitioner to exhaust state
court remedies. (ECF No. 6).
to filing his habeas corpus petition, Petitioner attempted to
file a motion for relief from judgment in the trial court.
The motion, dated March 22, 2011, was rejected by the trial
court on July 12, 2011, because Petitioner failed to file the
motion in accordance with Michigan Court Rules. 7/12/11
Opinion and Order, ECF No. 18-20. On September 20, 2011,
Petitioner tried once again to file a motion for relief from
judgment. This motion was also rejected by the trial court
for failure to comply with relevant state court rules.
11/7/11 Opinion and Order, ECF No. 25, Pg. ID 2332. The trial
court denied Petitioner's motion to amend his motion for
relief from judgment on January 11, 2012 (ECF No. 18-25), and
denied Petitioner's motion for reconsideration on March
2, 2012 (ECF No. 18-26). Petitioner finally successfully
filed a motion for relief from judgment on March 5, 2012. The
trial court denied the motion on April 2, 2012. 4/2/12
Opinion and Order, ECF No. 18-28. The Michigan Court of
Appeals and Michigan Supreme Court each denied Petitioner
leave to appeal. People v. Mann, No. 311545 (Mich.
Ct. App. April 25, 2013); People v. Mann, 495 Mich.
900 (Mich. Nov. 25, 2013).
then returned to this Court and moved for the stay to be
lifted. The Court granted the motion and the matter was
reopened. The petition for writ of habeas corpus raises these
I. The evidence was insufficient to convict of second-degree
murder on either a direct liability theory or an aiding and
II. The admission of an irrelevant and highly prejudicial
video recording of Mann's entire police interrogation,
where his prior incarceration was ...