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Ditta v. Bergh

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

January 3, 2017

LEVI DITTA, Petitioner,
v.
DAVID BERGH, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

          John Corbett O'Meara, United States District Judge

         Petitioner Levi Ditta was convicted in the Cheboygan Circuit Court of two counts of safebreaking, Michigan Compiled Laws § 750.531, one count of racketeering, Michigan Compiled Laws § 750.159i(1), one count of conspiracy to commit racketeering, Michigan Compiled Laws § 750.159i(4), two counts of breaking and entering a building with intent to commit larceny, Michigan Compiled Laws § 750.110, and six counts of possession of burglar's tools, Michigan Compiled Laws § 750.116. He filed this action, his second pro se petition for a writ of habeas corpus, claiming: 1) the prosecutor committed misconduct at trial, 2) Petitioner was denied the effective assistance of counsel, 3) the trial court displayed bias against Petitioner, 4) Petitioner's right to present an alibi defense was denied when the prosecutor was permitted to change the date of one of the offenses, 5) Petitioner was denied the effective assistance of appellate counsel, and 6) the cumulative effect of the trial errors prevented Petitioner from being acquitted. (Dkt. 1.) Having reviewed the Petition, the warden's response, and the state-court record, the Court finds that the petition was untimely filed and that Petitioner is not entitled to habeas relief with respect to any of his claims. The Court will thus deny the petition. The Court will also deny Petitioner a certificate of appealability, but it will grant him permission to proceed on appeal in forma pauperis.

         I. Background

         Petitioner's convictions stem from a series of break-ins occurring in Northern Michigan in the Fall of 2006.

         At trial, the evidence presented indicated that on or about October 20, 2006, four businesses were broken into during early morning hours by forcible entry in Cheboygan County, Michigan: Country Café, Whistle Stop Restaurant, Toasty's Yacht Club, and Rite Aid Pharmacy.

         The manager of Country Café, Mary Getzmeyer, testified that the back door was pried open and confirmed thirty dollars missing from the cash register. The co-owner of Whistle Stop Restaurant, Patty Croft, reported a glass door being broken but nothing of value was missing. The previous owner of Toasty's Yacht Club, Timothy Torrice, testified that at least four hundred dollars and seventy packs of cigarettes were missing from the business. An officer who responded to the Rite Aid Pharmacy alarm, Adrian Karr, testified that his initial impression of observing the footprint evidence was that there were two people on the roof, but he opined during the morning of his testimony that the casted footprints were from one person.

         Petitioner was identified as one of the perpetrators of these break-ins by his accomplices. Co-defendant Gerald Benton testified that he entered the places along with Petitioner during the first three incidents and assisted him with the Rite-Aid break-in by driving and acting as a look out for the authorities.

         On the early morning hours of October 24, 2006, three more Cheboygan County businesses were broken into: Music Masters, Kingston Theater, and Johnnie's Bar. Owners Herverd Canell and Gary Woodgate along with an employee Lynn Tellefsen testified that the businesses' were entered by the prying open of a door or a window. A total of about three hundred dollars was reported missing from both Music Masters and Kingston Theater. Woodgate testified that the safe of Johnnie's Bar, which had over two-thousand dollars inside, was later found empty by a person in the woods.

         Benton testified that he dropped Petitioner off in Petitioner's girlfriend's vehicle near these locations and again served as a lookout while Petitioner broke into the businesses. He testified that during these and other break-ins Petitioner would call him on a cell phone when he was finished with the burglary. Benton testified that the cell phones used during the break-ins belonged to Petitioner and his girlfriend, Ms. Watts.

         On November 6, 2006, three other businesses in nearby Emmet County were broken into: Meadows Bar, Bayview Laundry, and Evergreen Lawn Care. Todd Larson, owner of Meadow's Bar, testified that when he arrived to his business the following morning, he observed that things were strewn about, desk drawers were open, and around fourteen hundred dollars was missing from the safe and money box. Thomas Goeke stated that when he arrived to his Bayview Laundry business the next morning, the office drawer that contained three hundred dollars was empty, and he noticed pry marks on the doors and coin machine. Goeke also testified that his surveillance cameras recorded an unauthorized, male subject in a green hooded sweatshirt and white sneakers in his business during the break-in. Cheryl Renaud testified that when she arrived to Evergreen Lawn Care that morning, she found holes drilled into the window and the office safe was found upside down and emptied of approximately two thousand dollars.

         During the early morning hours of November 16, 2006, three additional break-ins occurred in Emmet County: Jurek's Market, Spirit Gas Station and, Bayview Laundry for a second time. Christopher Jurek stated that he was informed by his alarm company that a door had been tampered with that set off the motion detector alarm. When he arrived to the business, nothing of value was missing, but the door did have pry marks near the latch.

         Rebecca Glazier, Benton's girlfriend, testified that she was pressured by Benton to drive and drop off both Petitioner and Benton in front of Jurek's Market and was told to drive around until they were done. She stated that after about five minutes she noticed a truck in the back of the store and continued to drive around until she found both men at the top of a hill. Glazier testified that they both complained about her being a terrible driver, and Benton said that the silent alarm had gone off. Benton then proceeded to drive her vehicle to Spirit Gas Station where both Petitioner and Benton left the car for about forty minutes and returned with a large garbage bag. They later drove back to her residence and split the contents of the garbage bag between them, which were cartons of cigarettes.

         Goeke testified that on this same day, his Bayview Laundry business was broken into again and money was missing from his cash drawer, and his video surveillance camera was tampered with.

         During the early morning hours of November 20, 2006, two final businesses were broken into in Emmet County: U-Haul and Jet's Pizza. The then owner of U-Haul, James English, testified that his business was broken into thru a side door, that he found Benton's identification left inside on the floor, and that over three-hundred dollars was unaccounted for. Owner Elizabeth Moore described how there were no signs of forced entry to the Jet's Pizza establishment, but about six thousand dollars was missing from the safe.

         Benton explained that during these series of break-ins, Petitioner carried a backpack which held a crowbar for prying open doors and that he and Petitioner wore similar shoes, hooded sweatshirts, gloves, and masks throughout many of the break-ins.

         Megan Watts and Marsha Pettyjohn also testified about the various break-ins, a backpack, money taken, and how they got near the areas of the break-in sites.

         James Young, a detective who specialized in audio and video forensic work, concluded that after analyzing the Bayview Laundry video surveillance of the vehicle it was inconclusive and he could not say for sure that the vehicle was Megan Watts' 2005 Kia.

         Detective Nightingale confirmed the dates and places of the break-ins as well as the possible vehicles used according to various testimonies. His analysis of the telephone call records made between Petitioner and Benton during the time frames of the break-ins was consistent with Benton's testimony that the phones were used to communicate with each other although the telephone company instructed him that the phone records were not complete. Detective Nightingale also testified that the fingerprints collected from numerous sites did not match Petitioner or Benton.

         Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following claim:

I. The trial court erred when it admitted evidence, under MRE 404(B), of Mr. Ditta's drug use and of a subsequent breaking and entering in Florida because the evidence created unfair prejudice, was needlessly cumulative, confused the issues and misled the jury, in violation of MRE 403 and Mr. Ditta's constitutional right to a fair trial.
Petitioner also filed his own pro se brief, raising the following additional claims:
I. Did the prosecutor present sufficient evidence to sustain the criminal enterprise convictions?
II. Was the defendant denied a fair trial through the prosecution's withholding of evidence?
III. Was the defendant denied effective assistance of counsel through his trial?
IV. Was the defendant denied a fair trial where the prosecutor committed a ...

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