United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) GRANTING CERTIFICATE OF APPEALABILITY, AND
(3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Corbett O'Meara United States District Judge
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Paula Bennett was convicted after a
jury trial in the Wayne Circuit Court of one count of
first-degree murder, Mich. Comp. Laws § 750.3167. As a
result of her conviction Petitioner is serving a sentence of
life imprisonment without possibility of parole. The amended
petition raises two claims: 1) the trial court erroneously
instructed the jury on the elements of aiding and abetting,
and 2) Petitioner was denied the effective assistance of
trial and appellate counsel. The Court finds that
Petitioner's claims are without merit. Therefore, the
petition will be denied. The Court will, however, grant
Petitioner a certificate of appealability with respect to
both claims and grant permission to proceed on appeal in
was charged with first-degree murder in connection with the
shooting death of Stephanie McClure. Petitioner was tried
jointly with Kyron Benson, who shot and killed McClure. The
prosecutor's theory was that Petitioner aided and abetted
the crime by directing Benson to McClure's residence with
the knowledge that he intended to kill her. The 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):
Defendants lived together in Bennett's apartment. The
victim, Stephanie McClure, was Bennett's friend and
sometimes stayed at Bennett's apartment. In October 2007,
defendants discovered that several items, including a Play
Station 2, clothes, and shoes, had been stolen from
Bennett's apartment. Benson became angry over the stolen
items and began to blame McClure for stealing them. Benson
started making threatening comments to several people about
McClure, including commenting that he wanted to kill McClure
for stealing the items. Benson told one of the persons to
whom he had indicated that he wanted to kill McClure, Breanna
Kandler, one of Bennett's friends, that he would kill
Kandler too if she “[said] anything” about his
threats. Benson wanted Kandler to drive him to McClure's
trailer to get the apartment key back from McClure. Kandler
testified that she took Benson's threats seriously and,
accordingly, refused to take Benson to McClure's trailer.
Later in the evening, defendants and several of their friends
were at Bennett's apartment. They noticed that
defendants' puppy was missing and were looking around the
apartment for the dog. Benson joked that maybe the dog was in
the freezer, and when he checked in the freezer, he did
indeed find the puppy, which was dead. Benson immediately
accused McClure of killing the dog as well. Two of
Bennett's friends testified that they thought Benson had
killed the dog because of the way he reacted to finding it.
After the dead dog was disposed of, defendants and their
friends went to a Dairy Mart. While at the Dairy Mart,
Kandler saw Benson take a gun out of his car and put it in
his pants. Another friend, Jessica Fritz, testified that she
had previously seen her boyfriend sell a gun to Benson. Later
that evening, Bennett and Benson left their friends, stating
that they were going to “get [their] stuff back.”
Benson then called his friend Michael Larvaidan and asked him
to meet defendants at a Kroger store. Larvaidan had spoken to
Benson about the stolen items several times in the preceding
days. He testified that he tried to get Benson to calm down
about the incident. According to Larvaidan, while at Kroger,
Benson was angry and “going on about trying to get his
stuff back, . . . talking about going to kill
[McClure].” Benson showed Larvaidan a gun while he was
talking about this. After Larvaidan got into the car with
defendants, Bennett directed Benson to go to “Holiday
West, ” the trailer park where McClure lived. Benson
drove according to Bennett's directions. Once they
reached the trailer park, Bennett specifically directed
Benson to McClure's trailer. They saw McClure standing
outside by the trailer, in front of a car. Benson said,
Larvaidan testified that he told Benson, “[D]rive
off.” Benson drove around the trailer park and then
parked the car. Larvaidan told him “just to talk to
her. Don't do nothing stupid.” Benson got out of
the car and walked toward McClure's trailer. Bennett
moved to the driver's seat, and she and Larvaidan
continued to drive around the trailer park. While they were
driving around, Larvaidan saw Benson talking to McClure.
After several minutes they heard three or four gunshots and
then saw Benson running away. Bennett started crying as soon
as they heard the gunshots. Bennett drove toward where Benson
was running, and Benson got back in the car. Larvaidan asked
Benson, “Why?” Benson responded that “he
would have lost respect in the . . . hood.” Larvaidan
also said, “[You] better hope she's dead . . .
‘cause if she's not, [you're] going to
jail.” Because Bennett was charged with murder on a
theory of aiding and abetting
Benson, several witnesses testified regarding the
interactions between defendants and Bennett's conduct
toward Benson. The evidence presented demonstrated that
Bennett was present when Benson started making threats about
killing McClure, as well as threats toward Kandler. Benson
was also yelling at Bennett at this time, telling her that
she “was dumb for giving [McClure] a key.”
Kandler testified before Bennett's jury only that Bennett
told her that she thought Benson “looked pretty
serious” about killing McClure, although Kandler
testified that she never witnessed Bennett agree to kill
Fritz testified that she heard defendants arguing for an
extended period before they went to McClure's trailer;
Benson was again yelling at Bennett because she had given a
key to McClure. Bennett told Benson that she had filed a
report with the police and that the police would take care of
it. Fritz could not recall Benson's response to Bennett.
After the argument, Bennett told Fritz that she and Benson
were “leaving to get their stuff back.”
Finally, Larvaidan testified that Benson was talking openly
in the car about shooting McClure just before Bennett gave
Benson directions to McClure's trailer. Bennett did not
respond to these comments. Larvaidan also testified that
after they heard gunshots, Bennett immediately began crying
and drove back around toward McClure's trailer, where
they observed Benson running away. Following numerous
seemingly erroneous leads, the police eventually arrested
defendants for the murder of Stephanie McClure. After
defendants were arrested, Benson was observed telling Bennett
under the door between their jail cells, “Don't
Following trial, defendants were found guilty on all counts
and sentenced as previously stated. These appeals ensued.
People v. Bennett, 802 N.W.2d 627, 631-33 (Mich. Ct.
App. 2010) (footnotes omitted).
her conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. Her brief on appeal
raised the following claims:
I. Defendant was denied due process when she was convicted of
first-degree murder as an aider and abettor in a case where
the prosecutor failed to prove that defendant knew of the
principal's intent or assisted the principal in the
commission of the murder.
II. Defendant was denied due process when the prosecutor
improperly vouched for and bolstered the testimony and
quality of investigation of the officer in charge of the
case, suggesting to the jury that the officer's testimony
was corroborated by evidence known to the government but not
known to the jury.
Michigan Court of Appeals affirmed Petitioner's
convictions in a published opinion. Id. One Judge
dissented, raising issues that were not presented by
Petitioner. The dissenting Judge found that the jury
instructions on aiding and abetting were erroneous and that
the case should be remanded to the trial court for a hearing
to determine whether Petitioner was denied the effective
assistance of counsel. Id.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims she raised in
the Michigan Court of Appeals and adding the claim that the
jury was erroneously instructed regarding the standard for
aiding and abetting. The Michigan Supreme Court denied the
application because it was not persuaded that the questions
presented should be reviewed by the Court. People v.
Bennett, 796 N.W.2d 75 (Mich. 2011)(table).
then filed the instant action, raising the following claims:
1) insufficient evidence was presented to prove that
Petitioner aided and abetted Benson, and the jury was
erroneously instructed on aiding and abetting, 2) the
prosecutor committed misconduct, 3) Petitioner was denied the
effective assistance of trial counsel, and 4) Petitioner was
denied the effective assistance of appellate counsel.
Respondent filed a motion to dismiss based on
Petitioner's failure to exhaust her ineffective
assistance of counsel claims. Dkt. 11. The Court issued an
order determining that the case would be held in abeyance
while Petitioner sought state post-conviction review on her
unexhausted claims. Dkt. 14.
then returned to the trial court and filed a motion for
relief from judgment, raising the following claims:
I. Trial counsel was ineffective for failing to investigate
and pursue a duress defense.
II. Defendant's trial counsel was constitutionally
ineffective by adopting defense of co-defendant which
undermined his client's own defense and created a
conflict of interest.
III. Trial counsel failed to impeach state witness properly.
IV. Ineffective assistance of appellate counsel.
Dkt. 21-18, at ¶ 4.
trial court denied the motion for relief from judgment for
failure to demonstrate “good cause” and
“actual prejudice” under Michigan Court Rule
6.508(D)(3), and also because the claims lacked merit. Dkt.
21-21. Petitioner then filed an application for leave to
appeal in the Michigan Court of Appeals, raising the same
claims. The Michigan Court of Appeals denied the application
for leave to appeal for failure to establish entitlement to
relief under Rule 6.508(D). Dkt. 21-22. Petitioner applied
for leave to appeal in the Michigan Supreme Court, but her
application was also denied with citation to Rule 6.508(D).
People v. Bennett, 866 N.W.2d 432 (Mich. 2015)
then returned to this Court by filing a motion to reopen the
case along with an amended petition. The amended petition
indicates that Petitioner is abandoning her sufficiency of
the evidence and prosecutorial misconduct claims. See Dkt.
18, Pg ID 462. Her pleading indicates that she is raising the
following claims: 1) the jury was erroneously instructed on
the law of aiding and abetting, and 2) Petitioner was denied
the effective assistance of counsel where: a) trial counsel
failed to investigate and present evidence regarding battered
women's syndrome and domestic violence, b) trial counsel
deficiently adopted Benson's defense that he did not
commit the murder, c) trial counsel failed to adequately
impeach prosecution witness Kandler, and d) appellate counsel
failed to raise Petitioner's state post-conviction claims
on direct review. Dkt. 18. Respondent has filed a responsive
pleading, Dkt. 20, Petitioner filed a reply, Dkt. 22, and the
matter is now ready for decision.
Standard of Review
U.S.C. § 2254(d)(1) curtails a federal court's
review of constitutional claims raised by a state prisoner in
a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section
unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from