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Mann v. Bauman

United States District Court, E.D. Michigan, Southern Division

November 1, 2016

VINCE MANN, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. Facts

         The 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.
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 neighbor's driveway.
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 object.
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 replaced.
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 or twice.

People v. Mann, No. 281673, 2009 WL 3465495, at *1-3 (Mich. Ct. App. Oct. 27, 2009).

         Procedural History

         Petitioner 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' imprisonment.

         Petitioner 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).

         Petitioner 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 28, 2010).

         Petitioner 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).

         Prior 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).

         Petitioner 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 claims:

I. The evidence was insufficient to convict of second-degree murder on either a direct liability theory or an aiding and abetting theory.
II. The admission of an irrelevant and highly prejudicial video recording of Mann's entire police interrogation, where his prior incarceration was ...

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