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Ketola v. Klee

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

November 4, 2016

JOSEPH ARTHUR KETOLA, # 181020, Petitioner,
v.
PAUL KLEE, Respondent.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. On February 6, 2008, an Allegan County Circuit Court jury found petitioner guilty of first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and aggravated assault, Mich. Comp. Laws § 750.81a. Petitioner's convictions arise out of his conduct on the evening of August 12, 2007, in which he assaulted his wife, Brittany Ketola.

         On March 7, 2008, Judge William Baillargeon sentenced petitioner to ten to thirty years' imprisonment on his first-degree home invasion conviction and twelve months in jail on the aggravated assault conviction. After unsuccessful attempts to overturn his convictions and sentence in state court, petitioner filed his habeas corpus petition. Petitioner asks this court to overturn his conviction and sentence on the following grounds set forth in his amended petition:

I. Petitioner's Fourteenth Amendment due process right to notice and his Fifth Amendment rights were violated when the trial court allowed amendment of the information.
II. Petitioner's Sixth Amendment right to attorney-client privilege was violated when a jail officer overheard petitioner's trial strategy, informed the prosecutor, and the prosecutor moved to preclude any defense of involuntary intoxication.
III. Petitioner's Fourteenth Amendment due process rights and his Sixth Amendment right to present a defense were violated when the Allegan County jail's recordings of telephone conversations were destroyed.
IV. Petitioner's Fourteenth Amendment right to present a defense was violated the trial court judge denied petitioner's counsel's request for a forensic evaluation.
V. Petitioner's Fourteenth Amendment right to present a defense was violated by the trial court's limitation on expert testimony.
VI. Petitioner's Fourteenth Amendment due process rights and his Fifth Amendment rights were violated when the prosecutor asked for modification of the information to match the evidence at trial.
VII. Petitioner's Fourteenth Amendment due process rights were violated by a jury instruction with regard to first-degree home invasion that relieved the prosecution of the burden of proving specific intent.

(Amended Petition, ECF No. 14, PageID.531-38).[1]

         Respondent filed his answer to the petition. Respondent argues that the petition should be denied because all grounds raised by petitioner lack merit. (Answer at 2, 26-47, ECF No. 30, PageID.629, 653-74). In addition, petitioner argues that Grounds IV and VII are barred by procedural defaults. (Id. at 9, 36-38, 43-45, 47, PageID.636, 663-65, 670-72, 674).

         After review of the state-court record, I find that all grounds raised in the petition lack merit.[2] Accordingly, I recommend that the petition will be denied.

         Standard of Review

         The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct. at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

         The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings-not dicta-of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.”). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “‘objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

         Findings of Fact

         A. Circuit Court Proceedings

         1. Pretrial Motions

         Petitioner was charged with first degree home invasion, assault with intent to do great bodily harm less than murder, and second-degree child abuse. Judge Baillargeon conducted a number of pretrial hearing on various motions. The first such hearing was held on November 13, 2007. (Motion Hearing (MH I), ECF No. 32). The prosecutor filed a motion to allow the impeachment of petitioner, if he chose to testify at trial, by his prior criminal convictions involving theft and dishonesty under Rule 609 of the Michigan Rules of Evidence. The prosecutor produced certified copies showing petitioner's convictions for the felonies of filing of a false police report and breaking and entering of a motor vehicle. The court granted the motion. (MH I, 2-4).

         Petitioner's counsel indicated that the defense was contending that “the alleged victim, Brittany Ketola had been consuming alcohol, prescription medications, [and] admittedly consumed marijuana.” The defense also believed that Mrs. Ketola used cocaine. Counsel requested funds to obtain an expert who could testify regarding whether mixing prescription medications with alcohol and controlled substances would affect a person's credibility and/or impact that person's aggressiveness. (MH I, 7). Counsel was also seeking expert testimony regarding the medical trauma and injuries that petitioner suffered and its impact on a person's memory or the ability to formulate specific intentions or actions. The court approved this request for funds. (MH I, 7-8).

         Petitioner's counsel moved to quash all the charges. Judge Baillargeon found that the testimony elicited during petitioner's preliminary examination established probable cause and he denied the motion. (MH I, 9-17).

         Judge Baillargeon next considered petitioner's counsel's motion to exclude the statements that petitioner gave to the police. The judge heard testimony from Michigan State Police Trooper Benjamin Clearwater and petitioner. Trooper Clearwater testified that petitioner did not appear to be too intoxicated to know what was happening. (MH I, 20). Trooper Clearwater read petitioner his Miranda rights and he appeared to understand them. After having been informed of those rights, petitioner voluntarily elected to speak to Trooper Clearwater and offered a version of events minimizing his involvement. Petitioner's speech was not slurred. Trooper Clearwater never saw petitioner lose consciousness. (MH I, 20-29). Petitioner testified that he had no independent recollection of this meeting or his statements. (MH I, 30, 34). Judge Baillargeon denied petitioner's motion to exclude his statements. He found sufficient evidence that petitioner made a knowing and voluntary waiver of his Miranda rights. (MH I, 36-37).

         On January 30, 2008, the court conducted another hearing on a number of motions. (Motion Hearing II (MH II), ECF No. 33). Among the matters addressed was petitioner's counsel's motion regarding production of telephone recordings of conversations between petitioner and Brittany Ketola. Petitioner's counsel indicated that it was his understanding that the recording system at the Allegan County jail had crashed. It was his understanding that there were no recordings to be produced, but if recordings existed, he wanted copies. The prosecutor confirmed that there were no recordings: “There are none, Your Honor. I have checked with Deb Marcuilis from the jail; and unfortunately during the process of fixing their computer system, those were destroyed.” (MH II, 14).

         The next motion addressed was petitioner's counsel's motion in limine regarding petitioner's parole status. Petitioner was on parole on the date the crimes alleged in the information occurred. (MH II, 14). Petitioner's attorney asked that the prosecution's witnesses not be permitted to raise the issue of petitioner's parole ...


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