United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN
Corbett O'Meara, United States District Judge
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.
convictions stem from a series of break-ins occurring in
Northern Michigan in the Fall of 2006.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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 ...