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Spagnola v. Haas

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

April 3, 2017

RANDALL HAAS, Respondent.



         This matter is before the Court on Petitioner Frank Spagnola's pro se petition for a writ of habeas corpus. Petitioner challenges his convictions for first-degree premeditated murder, raising ten claims for relief. Respondent has filed an answer arguing that a portion of Petitioner's ineffective assistance of counsel and his prosecutorial misconduct claims are unexhausted and that all of his claims are meritless. For the reasons explained, the Court denies the petition.

         I. BACKGROUND

         Petitioner's conviction arises from the murder of Lisa Fein. The Michigan Court of Appeals summarized the circumstances leading to his conviction as follows:

During summer 2000, Lisa lived with her husband, Ron Fein, her son Jacob [then 11-years old], and Ron Fein's son from a previous marriage, Shane Demeulenaere, who was just over a year younger than Jacob. The family lived on Olive Branch Road, in Galien, Michigan. June 28, 2000 was a Wednesday, defendant's regular day to have visitation with Jacob. After spending time playing basketball with Jacob, defendant returned Jacob to the Fein residence sometime during the evening of June 28, 2000. Defendant and Lisa spoke outside and reviewed the visitation calendar. It was a warm night and there were mosquitoes out.
Defendant stayed around after he dropped Jacob off watching the boys catch fireflies. He drove away at about 10:30 pm in his parents' Buick Park Avenue.
The next day, June 29, 2000, Ron Fein left his home in late afternoon to go to work the midnight shift (6:00 pm to 6:00 am) at the Cook Nuclear Facility as he regularly did. Lisa was home with Jacob and Shane that evening, planning to go to a water park the next day. Eventually the three went to sleep. In the early morning hours of June 30, 2000, Jacob woke up because he heard noises. Jacob ran to the master bedroom and saw someone struggling with his mother. Jacob testified that the attacker wore a motorcycle-type helmet with a full face shield, dark blue or black work clothes (long pants and a long sleeved shirt), gloves, and boots. Jacob could not see the identity of the attacker. At trial, Jacob testified that he was sure the attacker was not defendant, his father. Jacob initially stated that it was not Ron Fein, but his testimony wavered that he did not know the identity of the attacker.
Jacob ran from the doorway and woke up Shane. He told Shane that he thought, “my mom and your dad are fighting.” Jacob ran back to the bedroom door but it was closed. He banged on the door and yelled but there was no response. He heard the sound of tape being pulled off a roll. Jacob attempted to call 911 from two different phones during the incident, but the first time he hung up quickly and the second time the cordless phone would not connect. Jacob and Shane initially hid in the bathroom because it had a lock on the door. During this time they heard loud “thumps, ” not like footsteps.
Scared, the boys left the bathroom and escaped the house through Jacob's bedroom window by opening the window and tearing away the screen by first poking it with a pencil. Shane looked at the clock in Jacob's bedroom before they left and it said “3-0” something so he thought it was around 3:00 a.m. when they left the house. They ran to two different neighbors' homes to try to get help but no one answered. They ultimately decided to go to the home of Jeanette Fein, Ron's grandmother, which was also on the street. On their trek, they saw the helmeted figure running/jogging down the street. Shane testified that the person was “[k]ind of short” and ran with a limp of sorts, like he had been recently hit. The boys watched the person until they lost sight of him. Shortly thereafter, they saw a car, not a truck, go down Olive Branch Road the opposite way the person had been running.
The boys arrived at Jeanette Fein's house and she let the boys into the house. Jacob noted it was about 3:30 am because he saw a clock in the living room. Jacob testified that he and Shane told her “my Mom and Shane's dad were fighting.” Shane testified that Jeanette Fein did not do anything because she thought Ron Fein and Lisa were just having an argument. Jacob did not describe the attack to Shane until they were on Jeanette Fein's couch. Shane had not actually seen the attacker because once he left his bedroom the master bedroom door was already closed. Jacob and Shane remained at Jeanette Fein's house for the rest of the night.
Ron Fein arrived home around 6:15 am. He entered the house through the back door and noticed that there had been a call at 6:17 am shortly before he entered the house. He recognized the number as defendant's phone number on the caller Id. As Ron Fein was heading toward the basement stairs he noticed that the light was on in the master bedroom because it normally was not on. He looked in and saw that the bed was “messed up” and Lisa was not there, which was unusual. He checked other rooms and the basement, but no one was in the house. He noticed that the window was open in Jacob's room and the screen was busted out. There was money sitting on the top of the dresser in the master bedroom and Ron Fein's gun cabinet containing seven guns was also undisturbed. Also, both Lisa's glasses and contacts were in the house and Lisa would not have left the house without one of them. Ron Fein then went to the basement that was also in disarray with dog food strewn about and a rug dragged out of place. Ron Fein then exited the basement through a door that leads outside. He noticed a roll of duct tape sitting on a woodpile that was not his duct tape. Ron Fein testified that the tape he found was not the brand he used. He used Tuck brand duct tape purchased from Wal-Mart or Meijer later found in the house, and the brand he found on the woodpile that was not his, was later identified as Ace duct tape.
Ron Fein went back in the house and called defendant because it was odd that defendant had called his house so early in the morning and since something was obviously wrong, he wanted to call to see if defendant knew what happened. He spoke with defendant and defendant offered to come over but Ron Fein declined and said that he was calling the police. Ron Fein called the police and his father. He then went to his grandmother's house to see if she knew anything and found Jacob and Shane there. Shortly thereafter, the police arrived. Ron Fein showed the police through his house and they interviewed him, Jacob, and Shane. Jacob told police about the helmet-wearing intruder. Ron Fein drove around looking for Lisa but did not find her. Police also searched for Lisa at some point but did not locate her.
Police sought out defendant as part of their investigation of Lisa's death on the morning after the incident, June 30, 2000, after speaking with Lisa's family members at the scene. Lieutenant Rolland Lombard testified that he arrived at defendant's parents' home at approximately 9:00 am. Lombard testified that defendant appeared “tired” and that his responses to their questions were “slow.” Lombard and other officers observed a raised, red scratch on defendant's lower left jaw line about 2 inch long that appeared to have been recently inflicted. Defendant told Lombard that he had cut himself shaving a couple weeks earlier. Officers did not believe that defendant's shaving cut explanation for the origin of the scrape on his jaw was physically consistent with the mark they observed.
Two days later, a group of Lisa's friends and other volunteers met and selected areas to search for Lisa. Greg Wiser, a coworker, called Ron Fein stating that his search party thought it found something near a wooded area at the edge of a bean field about a quarter mile away from Olive Branch Road. Police later found Lisa's body buried face down in the ground in a shallow grave at that location. Sergeant Doug Westrate testified that a blue J.P. Stevens pillowcase had been placed over Lisa's head, then a white Martex terry cloth towel covered her face. The towel and pillowcase were held tightly in place with duct tape wrapped several times around her head over her mouth and nose. Dr. David Allen Start, the forensic pathologist who performed the autopsy of the victim, testified that the towel, pillowcase, and duct tape were wrapped around the head and face in a fashion that would occlude the airway or occlude the nose and mouth of the victim. The autopsy revealed that the cause of Lisa's death was suffocation.
On July 10, 2000, police executed a search warrant at defendant's parents' house where he lived. Detective Sergeant Robert Boyce was one of the officers present at the search. He testified that police located a white Martex towel on the floor along one of the walls in the garage at defendant's house. Glenn Moore, a forensic scientist with the Michigan State Police (MSP) testified that the white Martex towel found in defendant's garage was similar in almost every way to the white Martex towel duct taped to Lisa's face except that the two towels were manufactured one year apart (1995 and 1996). He also testified that this type of towel was not sold for regular consumer use but exclusively for institutional use, primarily to hospitals or hotels. Sergeant Dave Rosenau testified that he searched the Fein residence twice, on different days, and found no similar towels in the Fein house.
Boyce testified that police found three J.P. Stevens pillowcases at defendant's house, a white one in the linen closet, and two light green colored pillowcases, one found in an adult male's bedroom and one in a child's bedroom. Moore testified that he compared these pillowcases to the blue one found on the victim. He eliminated the white pillowcase because although it was a J.P. Stevens pillowcase, it was standard size, and the blue pillowcase was J.P. Stevens queen size. The green pillowcases matched the blue one found over victim's head as to size (queen), brand (J.P. Stevens), and approximate date of manufacture (manufactured prior to the end of 1990). Rosenau testified that he searched the Fein residence twice and found no similar pillowcases in the Fein house.
Michele Marfori, a forensic scientist for the MSP, analyzed fingernail clippings taken from both the right and left hands during the autopsy. Marfori conducted a DNA analysis of brown flaky material recovered from the swabbing of the right hand and compared it to the known reference samples she received for DNA comparison. Marfori testified that defendant's DNA matched the nail clippings profile of the right hand at all thirteen locations for the major donor. She also testified that Ron Fein and Jeffrey Rohl, a friend of Lisa, were excluded from contributing to the DNA types obtained in the samples.
Defendant testified on his own behalf at trial. He stated that he did not kill Lisa and that the last time he saw Lisa was on the Wednesday before she went missing, June 28, 2000 when he dropped Jacob off after his regular visitation at about 9:00 pm. He testified that on the night Lisa disappeared he ran errands including picking up his mother's check from the hospital, and then going to the Hollywood Video store before it closed at midnight. Defendant stated that he then went straight home and did not leave the house at all that night. When police came to talk to him the next morning, he told police that the “red mark” on his jaw line happened “a couple of days” before June 30, 2000 when the police initially came to his house, not a couple of weeks so they must have gotten that wrong in their reports. Defendant testified that he loved Jacob, and he would not have done anything to Lisa with Jacob in the house, or otherwise.

People v. Spagnola, No. 250488, 2009 WL 2382670, *1-4 (Mich. Ct. App. Aug. 4, 2009).

         Petitioner was convicted by a jury in Berrien County Circuit Court of first-degree premeditated murder. Mich. Comp. Laws § 750.316. On July 14, 2003, he was sentenced to life imprisonment.

         In May 2004, petitioner filed a motion for new trial. The trial court denied the motion in all respects, with the exception of the ineffective assistance of counsel claim. Spagnola, 2009 WL 2382670 at *4. The ineffective assistance of counsel claim focused on issues surrounding the DNA evidence. Id. The trial court conducted a two-week hearing in 2005, following which the trial court required the release of DNA testing data for review by Petitioner's experts. Id. A Ginther hearing was held in December 2007. Id. Following the hearing, the trial court issued an extensive opinion and order denying the motion for new trial.

         Petitioner then filed an appeal of right in the Michigan Court of Appeals, raising eight claims for relief concerning the effectiveness of trial counsel, error in the admission of evidence, prosecutorial misconduct, his right to present a viable defense, and his right to an impartial jury. The Court of Appeals affirmed his conviction and sentence. Id. at * 1. Petitioner sought leave to appeal with the Michigan Supreme Court, raising the same eight claims plus an additional claim concerning the prosecutor's conduct. The Michigan Supreme Court denied his application on January 29, 2010. People v. Spagnola, 485 Mich. 1080, 777 N.W.2d 173 (Mich.2010).

         Petitioner filed a habeas petition on January 27, 2011. Respondent filed a motion to dismiss on the ground that the petition contained several unexhausted claims. The Court stayed the petition, allowing petitioner to return to trial court to exhaust his unexhausted claims. Spagnola v. Scutt, 2011 WL 6217794 (E.D. Mich. Dec. 14, 2011).

         Petitioner filed a motion for relief from judgment in the Berrien County Circuit Court. The trial court denied the motion. People v. Spagnola, No. 2002-403913 (Berrien Cty. Cir. Ct. July 5, 2012) (ECF No. 27-5). The Michigan Court of Appeals and Michigan Supreme Court denied Petitioner leave to appeal the trial court's denial of his motion for relief from judgment. People v. Spagnola, No. 314053 (Mich. Ct. App. Sept. 24, 2013); People v. Spagnola, 492 Mich. 978 (2014).

         Petitioner then filed a motion to lift the stay and filed an amended petition. The Court lifted the stay and ordered respondent to file an answer to the petition, which he has now done. The petition raises these claims:

I. Petitioner was denied the effective assistance of counsel guaranteed by the Sixth Amendment, made applicable to the states through the Fourteenth Amendment of the United States Constitution, where his trial attorney, with no strategic purpose, did not investigate and, therefore, did not discover information that would have permitted him to successfully challenge the DNA evidence and the statistics.
II. The repeated introduction of and substantial emphasis on clearly testimonial statements by decedent prior to her death purporting to implicate petitioner violated petitioner Spagnola's federal constitutional rights to confront and cross-examine his accuser. (United States Constitution Amendments VI, XIV).
III. The trial court's exclusion of a substantial amount of critical defense evidence suggesting another suspect might have motive to commit the murder for which petitioner Spagnola was convicted, in part through acceptance of the prosecution's argument that the other suspect was not on trial, denied petitioner his constitutional due process right to present a defense, in violation of the V, VI, XIV Amendments to the United States Constitution.
IV. Petitioner Spagnola's federal constitutional rights to due process, to remain silent, and to an attorney (United States Constitution, Amendments V, VI, XIV) were violated when the prosecution impermissibly elicited evidence that petitioner exercised his right to remain silent, his right to an attorney, and his right to be free from warrantless searches, impermissibly inferring that asserting these rights was evidence of petitioner's guilt.
V. Petitioner Spagnola's conviction must be reversed where the Berrien county sheriff's department and the prosecution denied petitioner his federal constitutional rights to due process of law and to a fair trial by failing to investigate the case in good faith (United States Constitution, Amendment V).
VI. Petitioner Spagnola was denied his right to a fair trial under the federal constitution (Amendment XIV) when the prosecutor engaged in severe and repeated outcome-determinative misconduct.
VII. Petitioner Spagnola was denied the effective assistance of counsel pursuant to the Sixth and Fourteenth Amendments of the United States Constitution, where his trial attorney failed to investigate and confront the People's theory that decedent's scratch of the petitioner while he was wearing a full face helmet left a red mark which was the origin of the DNA.
VIII. Petitioner Spagnola was denied his constitutional right to a fair trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution when a juror, who was ultimately selected and became the jury foreperson, failed to disclose that he had previously formed an opinion that petitioner was guilty.
IX. Petitioner Spagnola was denied his right to the effective assistance of counsel under the United States Constitution, Amendments Six and Fourteen, when trial counsel Parish failed to pursue an attack on the broken chain of evidence, which, if successful, would have brought about a reasonable probability of a different verdict.
X. Petitioner Frank Spagnola's constitutional rights to a fair and impartial trial and due process of law, under the Sixth and Fourteenth Amendments to the United States Constitution, were violated when the prosecutor at trial solicited false testimony to incriminate petitioner Spagnola, and committed repeated acts of out-come determinative misconduct to further incriminate petitioner.

         II. ...

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