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Miller v. Prelesnik

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

November 16, 2016

KERRY D. MILLER, Petitioner,



         This is a habeas corpus proceeding brought pro se by a state prisoner pursuant to 28 U.S.C. § 2254. On June 24, 2009, a Kent County Circuit Court jury found Petitioner guilty of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b(1)(f) and unlawful imprisonment, Mich. Comp. Laws § 750.349b.

         Petitioner's convictions stem from his actions on August 13, 2008. The Michigan Court of Appeals summarized the events giving rise to Petitioner's criminal convictions as follows:

The complaining witness testified that she had been on friendly terms with defendant for several years, and had on some occasions taken his money in exchange for sexual favors. According to complainant, on the occasion in question she accepted defendant's offer of $75 in exchange for his tying her up, but this agreement did not include physical violence against her. After she disrobed, defendant duct-taped her mouth and put her in restraints, then beat her buttocks with a belt “several times, ” “slugged” her “hard in the mouth, ” and penetrated her vagina with his penis before ejaculating on her chest. Complainant testified that defendant also produced a gun and told her he would kill her if she told anyone of the incident. According to complainant, defendant then forced her into his vehicle and drove her some distance away and threatened to abandon her. Defendant eventually drove her home after receiving her assurance that she would not tell of the incident . . . .

(Mich. Ct. App. (MCOA) Op. at 1, ECF No. 26.)

         On July 16, 2009, Petitioner was sentenced as an habitual offender, fourth felony offense, to concurrent prison terms of 30 to 40 years' imprisonment on his CSC I conviction and 15 to 30 years' imprisonment for unlawful imprisonment. (Cir. Ct. Register of Actions, ECF No. 17; J. of Sentence (ECF No. 26.)

         After unsuccessful attempts to overturn his conviction in state court, Petitioner filed this habeas corpus petition. Petitioner seeks federal habeas corpus relief on the following grounds:

I. The trial court violated petitioner's right to self-representation by denying his motion to represent himself without holding the required Anderson hearing. The trial judge told petitioner he had no right to help with his defense.
II. The trial court abused its discretion by allowing Mich. Rules of Evidence 404(b) other acts evidence into the record. Appellate counsel was ineffective for failing to raise the issue of false allegations made by the prosecution to introduce this evidence.
III. The search warrant has the wrong address and the wrong description of the residence and false allegations were made to obtain a search warrant.
IV. Petitioner was denied the effective assistance of both trial and appellate counsel.

(Pet., 3-5, ECF No. 1, PageID.3-5; Pet'r's Br. at iv, ECF No. 1, PageID.11.) Respondent argues that the petition should be denied for lack of merit, because Petitioner has not shown that the decision of the Michigan Court of Appeals rejecting petitioner's claims was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Respondent also argues that Ground II raises a state-law claim that cannot provide a basis for relief under 28 U.S.C. § 2254(a) and Ground III is barred by Stone v. Powell, 428 U.S. 465 (1976). (Answer at 2-4, ECF No. 15, PageID.313-15.)

         Upon review, the Court concludes that petitioner has not established grounds for federal habeas corpus relief. As a consequence, the Court denies the petition.

         Procedural and Factual Background

         On September 24, 2008, Petitioner received a preliminary examination in Kent County District Court. At the conclusion of the preliminary examination, the district court judge found probable cause and bound Petitioner over for trial on the CSC-I and unlawful-imprisonment charges. (ECF No. 18.)

         On January 5, 2009, the Kent County Circuit Court granted a motion by Petitioner's original appointed counsel to withdraw, and he appointed Attorney Jeffrey Kortes. (ECF No. 17.) Petitioner's attorney filed a motion in limine on February 27, 2009, seeking to preclude expert testimony from Gerald McCarthy and Linda Rossman and to bar introduction of Petitioner's prior conviction under Rule 404(b) of the Michigan Rules of Evidence. On March 27, 2009, the Court conducted a hearing on a motion filed by Petitioner's attorney, seeking dismissal on the basis of a purported speedy trial violation. (Mot. Tr. (MT), ECF No. 21.) The trial court denied the motion to dismiss because “the delay was occasioned by the change of counsel[.] ” (MT, 8.)

         On May 1, 2009, the court scheduled Petitioner's trial to begin on June 22, 2009. (ECF No. 17.) On June 9, 2009, Petitioner filed two pro se motions: one was a motion for leave to appeal the denial of the motion to dismiss, and the other was Petitioner's “Motion for Defendant to Represent Himself in these Matters.” (Id. at 5.) In the motion to represent himself, Petitioner stated that his attorney had “failed at every stage since January 5, 2009[.]” (See Br. in Supp. of Mot., ECF No. 30.) He complained that he had been requesting discovery and that his attorney had failed to respond. (Id.) In his brief, Petitioner again expressed dissatisfaction with his attorney's failure to respond to his discovery requests and complained that his attorney had not filed an appeal of the decision denying the motion to dismiss. On June 10, 2009, the court entered orders denying the motions because the right to self-representation and the right to counsel were mutually exclusive, and Petitioner was represented by counsel. (6/30/09 Cir. Ct. Order, ECF No. 30.)

         Petitioner's trial began on June 22, 2009, and concluded with the jury's verdict on June 24, 2009, finding Petitioner guilty of first degree criminal sexual conduct and unlawful imprisonment. (Trial Transcripts (TT I-TT III), [1] ECF No. 22-25.) On June 22, 2009, the trial judge heard argument on several motions before jury selection began. (TT I, 3-16, ECF No. 22.) Among other things, the trial court found that the evidence regarding a prior incident of criminal sexual conduct by Petitioner was admissible under Rule 404(b) of the Michigan Rules of Evidence as showing plan, scheme or design. (TT I, 15.) The court also denied Petitioner's attorney's motion to exclude testimony from Gerald McCarthy and Linda Rossman. (TT I, 13-14.)

         The key testimony in this case was provided by Mary Buzzitta. She testified regarding her own actions on August 13, 2008 and those of Petitioner. Ms. Buzzitta knew Petitioner and identified him in court. (TT II, 50-51.) They had a relationship in which she would travel a few blocks down the street to Petitioner's residence and have sex with him in exchange for money a couple of times per month. (TT II, 51-52.) Petitioner contacted her on the morning of August 13, 2008, and asked her to come over and have sex. According to Ms. Buzzitta, her long-term boyfriend Leroy Cobb knew that she engaged in sex for money and that she went to Petitioner's residence to have sex in exchange for cash. Ms. Buzzitta testified that on August 13, 2008, Petitioner asked her not to let Leroy know that she was coming over. (TT II, 54-56.)

         Ms. Buzzitta walked to Petitioner's apartment. She testified that Petitioner offered her $75 if she agreed to be tied up or $10 for a different sexual act. She accepted Petitioner's offer of $75 in exchange for tying her up, but the agreement did not include physical violence against her. (TT II, 56.) They went to Petitioner's bedroom. She took off her clothes and allowed Petitioner to tie her hands behind her back with plastic ties. Petitioner put duct tape over her mouth and chained her to the bed. Petitioner then beat her buttocks several times with a belt. He slugged her very hard in the mouth. He penetrated her vagina with his penis before ejaculating on her chest. (TT II, 57-59.) Petitioner got a handgun out of a drawer in the bedroom and informed Ms. Buzzitta that they were going for a ride. She was permitted to put on her clothes other than her bra, and then her hands were once again bound behind her back. During the drive, Petitioner indicated that he had a body bag with her name on it. Petitioner drove her to a dead-end street not far from the Clarksville exit off the highway. Petitioner indicated that she was not the only woman he had Dated this to and that if she screamed, she would be dead. After Ms. Buzzitta promised not to contact the authorities, Petitioner drove her back to his apartment and she walked home from there. (TT II, 59-60, 73-74.)

         Ms. Buzzitta testified regarding the injuries that she suffered. The jury saw the photographs taken of Ms. Buzzitta's physical injuries. (TT II, 64-68, 88-91.) Nurse Examiner Linda Rossman testified that Ms. Buzzitta's injuries were consistent with being whipped by a belt. (TT III, 9-12.)

         Petitioner's attorney cross-examined Ms. Buzzitta on the basis of her preliminary examination testimony and statements that she gave to the police. (TT II, 73-77.) Defense counsel was able to elicit testimony from Ms. Buzzitta in which she committed herself to a time frame of approximately three and one-half hours from the time of her arrival at Petitioner's apartment to her return to that apartment after Petitioner drove her to the Clarksville exit. (TT II, 78.) He also elicited testimony that it took five minutes or less to walk the distance from Petitioner's apartment to her residence. (TT II, 82.) In addition, Petitioner's attorney elicited testimony from Ms. Buzzitta that she was not paid the $75 on the date of the sex act. (TT II, 80.)

         Linda Rossman, the manager of the YWCA nurse-examiner program, testified as an expert in the filed of injuries sustained in sexual assault. (TT III, 7-8.) Rossman did not examine Ms. Buzzitta, but she reviewed the photographs taken of Ms. Buzzitta's injuries and concluded that the bruises were consistent with injuries caused by the striking with significant force by a strap, belt or other oblong object, and that the injuries were consistent with having been inflicted within 24 hours of the picture-taking. (TT III, 9-10.) The bruises could, however, have been made within a time frame of one to four days. (TT III, 12.)

         Leroy Cobb testified that he saw that Ms. Buzzitta had a big welt across the back of her leg. Cobb said that he could see that she had been beaten pretty hard with something. He convinced Buzzitta that she had to call the police. She called 911. They met with a police officer. Cobb asked the officer if he was going to arrest Petitioner, and he was not satisfied with a response to the effect that he did not even know if a crime had been committed. Cobb indicated that he made calls to Petitioner because he was upset at the situation, not to demand payment from Petitioner. (TT III, 33-37, 43.)

         Detective Daniel Adams testified that the dispatch computer indicated that the 911 call was received at 11:44 a.m. on August 13, 2008. (TT II, 107.) Officer Chad Kooyer testified that he was dispatched at 11:51 a.m. and met Ms Buzzitta in a parking lot near Ralph's Market at approximately noon. He took a statement from Ms. Buzzitta (TT I, 37-38.) . Officer Kooyer could see that she was upset. He could also see the marks on her wrists and ring marks on her ankles. He did not see bruises on her face or buttocks. (TT I, 41-42, 47-49.)

         Officer Kooyer went to Petitioner apartment but was not able to find him. Kooyer was able to contact Petitioner by telephone. Petitioner admitted that there had been an arrangement for prostitution with Ms. Buzzitta for several months. He indicated that today's incident maybe ran contrary to past ways of doing it, and that she was angry about the amount of money that would exchange hands. (TT I, 39.) Officer Kooyer asked Petitioner to come in and speak with a detective at 1:00 p.m. the next day. (TT I, 41.)

         Detective Adams interviewed Ms. Buzzitta on the morning of August 14, 2008. Detective Adams saw bruises on Ms. Buzzitta's legs, wrists, and ankles, but did not see bruises on her face. (TT II, 118.)

         Detective Adams interviewed Petitioner later on August 14, 2008. Petitioner indicated that he had an arrangement with Ms. Buzzitta in the past, paying for sex and that she would allow him to tie her up and assault her. Petitioner indicated that his theory why she had filed a report on this occasion was that she was upset over a discrepancy in the amount or the kind of payment for these services. (TT II, 109, 128.) On cross-examination Petitioner's attorney was able to elicit testimony from Detective Adams that Petitioner showed him his phone. Adams's investigation indicated that Mr. Cobb had placed the calls to Petitioner between 3 and 4 p.m. on the afternoon of August 13, 2008, using Ms. Buzzitta's phone. There had been a phone call from Ms. Buzzitta's phone at 3:41 p.m. that went to voice mail and the recording had been 21 seconds long. (TT II, 129-30.) Detective Adams testified that the actual voice mail message was not available for review. (TT II, 129.) Petitioner just showed him the phone and did not offer to play messages. He did not mention any voice mail messages demanding payment. (TT III, 49.)

         Detective Adams testified that police obtained warrants to search Petitioner's residence and executed the warrants on September 9, 2008. Police found no occupant at the apartment and a for rent sign was posted. They contacted the apartment's owner to let them inside. The apartment was owned by Petitioner's brother. They arrived together and Petitioner was taken into custody. Police seized a roll of duct tape and a computer. (TT II, 113-14.) Detective Gerald McCarthy testified that he was a certified computer forensic examiner. Exhibits 13-19 admitted at trial were photographs of bondage taken from Petitioner's computer. (TT III, 19-20.)

         Sue Rexford testified regarding Petitioner's actions against her on September 11, 1990. Petitioner bound her, taped her mouth with duct tape, hit her buttocks and the backs of her thighs with a riding crop, hit her in the face, raped her, and put a gun to her head and threatened to shoot her. (TT II, 92-100.) Charles Brown, a retired detective, gave very brief testimony regarding the 1990 incident. (TT II, 101-05.)

         Petitioner's attorney moved for a directed verdict on both charges. (TT III, 52-55.) With regard to the unlawful imprisonment charge, he argued that the time frame described by Ms. Buzzitta did not “add up.” (TT III, 54.) Judge Leiber denied the motion for a directed verdict finding that the evidence that had presented was sufficient for a jury to find ...

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