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Kwasny v. Stewart

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

April 6, 2017

BETSY KWASNY, Petitioner,
v.
ANTHONY STEWART, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Betsy Kwasny, (“petitioner”), confined at the Huron Valley Women's Complex in Ypsilanti, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury in June, 2011, in the Berrien County Circuit Court of uttering and publishing, three counts of possessing or using a financial transaction device without consent, and drawing a check on a bank without a bank account. Petitioner was separately convicted by a jury in the Berrien County Circuit Court in February, 2012 of subornation of perjury and perjury. Petitioner's two convictions were consolidated on appeal. Petitioner filed two separate habeas applications challenging these different convictions but has requested that these two separate cases be consolidated for review. The Court grants petitioner's request to consolidate the two cases for habeas review. The Court denies the petition for writ of habeas corpus.

         I. Background

         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

In Docket No. 306784, defendant was charged with uttering and publishing, MCL 750.249, involving a June 1, 2009, check given to Colleen Kennedy in lower court no. 2009-003571-FH (the Kennedy case); three counts of possessing or using a financial transaction device without consent, MCL 750.157n, involving the use of the credit card belonging to Marcel and Aldeane Everhart for three ATM withdrawals on November 24, 2008, in lower court no. 2009-004979-FH (the Everhart case); and drawing a check on a bank without a bank account, MCL 750.131a, involving a June 23, 2008, check given to Kelsie Penley in lower court no. 2010-005474-FH (the Penley case). The three lower court cases were consolidated for a single trial (the June 2011 trial), and defendant was convicted of all charges. The trial court sentenced defendant as an habitual offender, second offense, MCL 769.10, to concurrent prison terms of 36 to 252 months for the uttering and publishing conviction and 210 days for the other convictions. Defendant appeals as of right. We affirm defendant's convictions, but remand for entry of a new order of restitution in the Everhart case.
In Docket No. 309924, following a jury trial, defendant was convicted of subornation of perjury, MCL 750.424, and perjury, MCL 750.422. The trial court sentenced defendant as a habitual offender, second offense, MCL 769. 10, to prison terms of 60 to 270 months, which were to be served consecutively to any sentences that defendant was currently serving. Defendant appeals as of right.[1]
In the Everhart case, without consideration of any evidence of any of defendant's other acts, including evidence of the charged offenses in the Kennedy case and the Penley case and evidence of defendant's prior misdemeanors, the evidence of defendant's guilt was overwhelming. Jason Dillenbeck and Emily McCachren, employees of the Chase Bank that housed the ATM where the three $400 withdrawals were made on November 24, 2008, viewed footage of the ATM withdrawals. When shown a photograph lineup, both Dillenbeck and McCachren immediately identified defendant as the person who made the withdrawals. In addition, the charges on the credit card that the Everharts denied making included charges at a casino and a casino restaurant, a charge to the city of Bridgman, a charge to Tia's Balloons & Gifts, and a charge to a Super 8 Motel. Defendant was known to frequent the casino; the charge to the city of Bridgman paid defendant's water bill; Tia's Balloons & Gifts was located in the Alabama town where defendant's mother lived; and keycards to a Super 8 Motel were found in a nightstand in defendant's house. Further, after defendant left Michigan in the summer of 2009, Michael Kwasny, her husband, found a box containing mail belonging to the Everharts, including credit card bills, in their house. This overwhelming evidence of defendant's guilt was not diminished by Sarah Brunke, who testified that, acting under Michael's direction, she was the person who made the three ATM withdrawals. Based on the trial court's statement, made outside the presence of the jury, that it could not recall testimony that was “more incredulous and patently false” than the testimony of Brunke, it is reasonable to conclude that the jury also did not believe Brunke's testimony, especially where Brunke testified that she had used the Everharts' credit card to buy groceries before she made the ATM withdrawals but no such charges appeared on the credit card bill. Under the circumstances, it does not affirmatively appear that it is more probable than not that an error by the trial court in denying defendant's motion to sever was outcome determinative in the Everhart case.
Without consideration of any evidence of defendant's act of using the Everharts' credit card, the prosecutor presented overwhelming evidence of defendant's guilt in the Kennedy and Penley cases. Penley, who in 2008 was dating defendant's son George Kaurin, testified that defendant signed the June 23, 2008, check. Elizabeth Spencer and Catherine Sorenson, tellers at the Fifth Third Bank where Penley deposited the check, testified that Penley was accompanied by a woman when she came into the bank and that Penley introduced the woman to Spencer as her boyfriend's mother. Kennedy testified that defendant gave her the June 1, 2009, check for $3, 200. In text messages that were sent to her from defendant's telephone, Kennedy received promises from “Liz, ” the name by which Kennedy knew defendant, that money for the bounced check had been sent. In addition, two police officers testified that they had previously investigated defendant for either giving a check drawn on a closed account or a nonsufficient funds check. The evidence of defendant's guilt was not seriously undermined by defendant's witnesses, as there was an apparent lack of credibility for many of them. For example, Gerald Schwartz, who was defendant's boyfriend in May 2009, Kaurin, and Brunke testified that Schwartz and defendant left Michigan on May 31, 2009, in the morning. However, after Kaurin and Brunke were shown the program from Kaurin's May 31, 2009, graduation, which showed 1:00 p.m. as the time of the graduation, they changed their testimony, claiming that Schwartz and defendant left Michigan in the evening on May 31, 2009. In addition, although Wendy Carlson, defendant's handwriting expert, testified that it was her opinion that Michael signed the checks given to Penley and Kennedy, she also testified that Michael signed the four checks that were the subject of Brunke's four uttering and publishing convictions. Brunke however, testified that she knew and had previously admitted that Michael had not signed those checks. Under these circumstances, where there was evidence that defendant had a pattern of using nonsufficient fund checks or checks belonging to closed accounts, including twice using young women to cash bad checks, and where credibility questions as to some of defendant's witnesses were raised, it does not affirmatively appear that it is more probable than not that an error by the trial court in denying defendant's motion to sever was outcome determinative in the Kennedy case or the Penley case.

People v. Kwasny, No. 306784, 2013 WL 5857632, at * 1-3 (Mich. Ct. App. Oct. 31, 2013)(internal citations omitted).

         In addition to this evidence, Sarah Brunke testified at petitioner's perjury and subornation of perjury trial in 2012 that she began living with petitioner and her family during her senior year of high school. At some point, she moved to the State of Virginia with petitioner. (Tr. 2/21/12, pp. 219-20). While living in Virginia, Brunke became aware of criminal charges in Michigan against petitioner relating to the Everhart's credit card and checks involving Colleen Kennedy and Kelsie Penley. Ms. Brunke indicated that she testified in petitioner's first trial of 2011 as a defense witness, in which Ms. Brunke testified she was responsible for those criminal acts and that petitioner was not. Ms. Brunke testified at petitioner's 2012 perjury trial that she was not responsible for the Everhart's credit card charges or with the checks of Colleen Kennedy and Kelsie Penley. (Id., pp. 220-22). Brunke further testified at petitioner's perjury trial that petitioner encouraged her to lie at the first trial of 2011 and to testify falsely that petitioner was not guilty of any of the criminal charges involved because either Ms. Brunke or Michael Kwasny were responsible. (Tr. 2/22/12, pp. 232-248).

         Petitioner's two convictions were consolidated on appeal and affirmed, although the case was remanded for a new order of restitution. People v. Kwasny, Nos. 306784, 309924, 2013 WL 5857632 (Mich. Ct. App. Oct. 31, 2013), judgment vacated in part, appeal denied in part, 497 Mich. 908, 856 N.W.2d 70 (2014). Further facts will be discussed when addressing petitioner's claims.

         Petitioner filed two separate habeas applications under this case number. In the first petition, petitioner seeks relief from her 2011 convictions on the following grounds:

I. The trial court abused its discretion and denied due process when it refused to sever the cases.
II. The trial court abused its discretion when it admitted surprise, inflammatory evidence of an $18, 000 uncashed check.
III. The trial court abused its discretion by failing to adequately articulate a “substantial and compelling” reason to its extreme upward departure from the sentencing guidelines, in violation of statute and the Eighth Amendment.

         In her second petition, petitioner seeks relief on the following grounds from her 2012 perjury conviction:[2]

IV. Kwasny is entitled to consecutive (sic) re-sentencing because the legislature never intended that concurrent (sic) sentencing was within the applicable sections of the perjury statute.
V. Judge Charles Lasata abused his discretion requiring retrial for:
a. Failing to grant a motion for a mistrial for Kwasny's prejudicial remarks about the judge's previous harshness in sentencing her and alleged infidelity between her and the judge.
b. Failing to grant a mistrial after Kwasny's remarks of frustration with the prosecutor's questioning in court proceedings.
c. Failing to give a proper instruction to the jury to disregard Kwasny's remarks regarding her prior sentencing.
d. Subsequently granting the prosecutor's requests and allowing the prosecutor to argue that Kwasny's outbursts should be considered by the jury adverse to her defense.
VI. The prosecutor engaged in misconduct during closing and sentencing concerning facts not in evidence, vouching for Sarah Brunke, arguing Kwasny was lying, and shifting the burden of proof to Kwasny.
VII. It violated equal protection and due process to have a judicially biased judge.
VIII. Kwasny is entitled to resentencing because there was an upward departure unsupported by substantial and compelling reasons.
IX. Kwasny was denied due process because the court, based on its biased and unreviewable perception, made an upward departure where Kwasny insisted on her innocence and her right to a fair and unbiased trial.
X. There was insufficient evidence to convict Kwasny where the primary testimony against her was from Brunke, a witness who herself was prosecuted for perjury and who contradicted her prior sworn testimony.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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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