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Borgia v. Stewart

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

February 24, 2017

TERRY BORGIA, Petitioner,


          STEPHEN J. MURPHY, III United States District Judge.

         Petitioner 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 corpus.


         Borgia 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 discovered him.
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[1], 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).

         Borgia's 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.


         The 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 ...

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