United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
STEPHEN J. MURPHY, III United States District Judge.
Terry Borgia, confined at the Huron Valley Women's
Correctional Facility in Ypsilanti, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In her pro se application, Borgia challenges her
conviction for first-degree felony murder, Mich. Comp. Laws
§ 750.316(1)(b), and first-degree child abuse, Mich.
Comp. Laws § 750.136(2). For the reasons stated below,
the Court will deny the application for writ of habeas
was convicted following a jury trial in the Macomb County
Circuit Court. The Court presumes the relevant facts relied
upon by the Michigan Court of Appeals are correct, see
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), and
recites them verbatim:
This case arises from the drowning of a small child that
occurred on January 11, 2010, in Clinton Township, Michigan.
On the morning of January 11, 2010, defendant was present in
her apartment in Clinton Township with her daughter Tonina
Borgia and her grandson, DT. DT was the son of
defendant's other daughter, Amy Alkasmikha; defendant and
Tonina were babysitting DT on January 11, 2010. DT was four
years old. Between 7:00 a.m. and 8:00 a.m., a 911 call was
made from defendant's home to report a drowned child. A
group of firefighters were the first to arrive on the scene;
when they arrived at the apartment, they found that no lights
were on and the front door of the apartment was locked. After
the firefighters knocked on the front door for approximately
10 to 15 seconds, defendant opened the door and let them into
the apartment. Defendant appeared calm, and she said nothing
as she led the firefighters into the interior of the
apartment. Defendant led the firefighters to a bathroom along
the main hallway of the apartment; inside, DT was lying on
his back, unconscious, on the bathroom floor. Tonina was
kneeling next to DT in the bathroom, speaking to an unknown
person on a cordless phone.
As firefighters began first aid procedures on DT, Mark Turo,
one of the firefighters present, questioned defendant about
what had happened. Defendant told Turo that DT had been
sleeping on the couch in the living room of the apartment,
and that approximately one hour before the firefighters
arrived, she placed him in the bathtub. Defendant stated that
she had not checked on DT after she placed him in the
bathtub. Turo stated that neither defendant nor Tonina could
answer his basic questions about DT's background,
including what his last name was and what his birthday was.
Defendant also initially told Turo that she was DT's
mother. Preston Susalla was one of the first police officers
to arrive on the scene; she also questioned defendant and
Tonina about what had happened to DT. Susalla stated that
defendant was calm and emotionless throughout their
conversation; however, Tonina was hysterical. Defendant told
Susalla that "approximately 10 minutes after waking up
she went into the bathroom and filled the bathtub, filled it
with water." Defendant told Susalla that "[a]fter
filling the bathtub with water, she then walked into the
living room where DT was sleeping on the couch, and she
picked him up and then proceeded to walk into the bathroom
where she [had] filled the tub full of water." Defendant
stated that she placed DT in the tub, with his pajamas still
on, and then walked into the kitchen; she also stated that
she did not check on him for 25 minutes until Tonina
Leo Melise, a police detective, also interviewed defendant at
the apartment. Defendant told Melise that she had awoken at
approximately 6:00 a.m. that morning, brushed her teeth,
showered, and then she ran a bath for DT. Defendant told
Melise that she placed DT in the bathtub with his pajamas
still on, and then walked away. After defendant spoke with
Melise, she was arrested and transported to a police station.
Police officers discovered five inches of standing water in
the bathtub; additionally, the floor around the bathtub was
wet. Police officers also recovered wet children's
pajamas and a wet mop from the apartment.
DT was declared deceased at a hospital after being
transported from the apartment in an ambulance, and an
autopsy was performed. Daniel Spitz, who performed the
autopsy, observed bruising on DT's scalp and neck that
were consistent with physical trauma. Additionally, Spitz
found petechiae around DT's eyes; he stated that
petechiae are broken blood vessels that form in response to
increased pressure in the head and face. Spitz also found
tearing inside DT's lip that was consistent with his lips
having been pressed hard against his teeth. Spitz determined
that DT's cause of death was forced submersion and
drowning, and also that the manner of death was homicide.
Throughout the trial, defendant's counsel argued that
defendant was attempting to falsely take responsibility for
DT's death in an attempt to protect Tonina; defense
counsel argued that Tonina actually killed DT. Vicky
Antishin, defendant's other daughter, testified that she
believed Tonina was responsible for DT's death.
Specifically, Vicky testified that several days after
DT's death, Tonina was staying at her house, and Tonina
had spoken around her children with "satanic talk."
Further, Vicky stated that Tonina attempted to kidnap one of
Vicky's children by pulling the child out the front door
of Vicky's house on the same day. Additionally, Vicky
stated that Tonina had confessed to killing DT one day as the
two were driving together to one of defendant's court
dates. Vicky also testified that DT was exceptionally strong
for a small child, and that defendant would have been unable
to physically overpower him.
Tonina was not present for defendant's trial; however,
Tonina's November 30, 2012 testimony, from one of
defendant's prior mistrials, was read for the jury. Tonina
denied killing DT, and stated she believed defendant had
killed DT because she was tired of being a grandmother and
having to constantly babysit him. Tonina also stated that
defendant had suffered from mental problems in the past
several years, had attempted suicide, and that her daughters
had attempted to have her admitted to a mental hospital.
Tonina also admitted that she personally suffered from
bipolar syndrome and psychosis, and that she had taken
antipsychotic medications throughout her adult life. Tonina
stated that she went to bed between 9:00 p.m. and 10:00 p.m.
on January 10, 2010, and that defendant and DT were together
in the living room at that time. Tonina awoke at
approximately 5:00 a.m. on January 11, 2010, and defendant
knocked on her door; defendant stated that she had killed DT.
Tonina walked to the bathroom and saw DT floating in the
bathtub. Additionally, recorded audio tapes of Tonina's
conversations with a police detective were played for the
jury; during two of the interviews, she denied killing DT,
but in an April 2011 interview, she admitted to killing DT.
During closing arguments, the prosecutor stated:
And then I heard [defense counsel] stand up here and indicate
right off the bat, ... his client is not saying a word in her
own defense, she is perfectly happy to fall on the sword. If
that were true, she would have pled to it. And I say this, I
say let's give her her wish, let's convict her, not
because she is a martyr ... but because she is a murderer.
Defendant objected to the prosecutor's statement and
requested a curative instruction. The trial court agreed and
provided the jury with the instruction that the lawyers'
opening statements and closing arguments are not evidence,
and also an instruction that the jury should ignore the
prosecutor's comments to the effect that defendant should
have pleaded guilty. On April 17, 2013, defendant filed a
motion for a new trial; defendant argued that the
prosecutor's statement during closing argument denied her
a fair trial. On June 12, 2013, the trial court denied
defendant's motion for a new trial, ruling that the
prosecutor's statement was made in direct response to
defense counsel's argument that defendant was
"falling on a sword and taking the blame for her
daughter." Further, the trial court ruled that the
prosecutor's statement did not implicate defendant's
silence at trial; rather, it implicated defendant's
failure to plead guilty.
People v. Borgia, No. 316940, 2014 WL 5364173, at
*1-3 (Mich. Ct. App. Oct. 21, 2014).
conviction was affirmed on appeal. Id., lv.
den. 497 Mich. 1028 (2015). Borgia seeks habeas relief
on the following grounds:
I. Petitioner's Fourteenth Amendment was violated when
the prosecution failed to produce legally sufficient evidence
to identify petitioner as the perpetrator or prove her guilt
beyond a reasonable doubt.
II. The prosecutor violated petitioner's state and
federal constitutional due process rights to a fair trial by
making comments during her closing argument which violated
petitioner's right to remain silent.
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), imposes the following
standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...