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Bennett v. Warren

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

April 12, 2017

PAULA BENNETT, Petitioner,
v.
MILLICENT WARREN, Respondent.

          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

          John Corbett O'Meara United States District Judge

         This is 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 forma pauperis.

         I. Background

         Petitioner 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, “That's her.”
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 McClure.
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 talk.”
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).

         Following 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.

         The 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.

         Petitioner 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).

         Petitioner 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.

         Petitioner 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.

         The 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) (table).

         Petitioner 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.

         II. Standard of Review

         28 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.

         “A 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 [this] ...


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