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Dulak v. Klee

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

May 23, 2017

PAUL KLEE, Respondent.



         This is a habeas corpus case under 28 U.S.C. § 2254. Petitioner James Anthony Dulak (“Petitioner”) challenges his conviction for first-degree (felony) murder, Mich. Comp. Laws § 750.316(1)(b). Petitioner argues through counsel that his trial and appellate attorneys were ineffective, that the state prosecutor committed misconduct, that a co-defendant who testified against him committed perjury, and that the jury instructions were deficient. Respondent Paul Klee urges the Court to deny the petition for lack of merit in the claims and because four of the claims are time-barred, procedurally defaulted, or barred by the non-retroactivity doctrine. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         A. The Charge, Trial Testimony, Verdict, and Sentence

         Petitioner was charged with murdering Mark Keller (“Keller”) during a robbery or larceny at Keller's home in Menominee County, Michigan on May 11 or 12, 2008. The medical examiner who performed the autopsy on Keller testified that Keller was struck approximately sixty-three times and that the cause of death was head injury caused by at least three or four blows with a blunt object. The prosecutor's theory was that Petitioner caused Keller's death or aided and abetted Keith Benson (“Benson”) and Guy Buck (“Buck”) in killing Keller. Petitioner's theory was that he merely planned to beat and rob Keller, with the help of Benson and Buck, but that he never intended to kill or seriously injure Keller or create a situation that would cause serious injury to Keller. The case was tried before a jury in Menominee County Circuit Court where the following persons were among the many witnesses who testified.

         Prosecution Witnesses

         Ryan Johnson

         Ryan Johnson testified that he knew Petitioner, Benson, and Buck and that, in May of 2008, he asked Buck whether he could park his white Toyota pickup truck at Petitioner's and Buck's apartment complex for a few weeks. He did not give anyone permission to use his truck while it was parked there, and he not give his truck keys to anyone. He later learned from the authorities that his truck may have been used in a crime committed by Petitioner, Benson, and Buck. At trial, Johnson identified pictures of the interior of his truck, which had a handkerchief hanging from the place where the ignition was punched out.

         Mitchell Hefty

         Mitchell Hefty testified that about 5:00 a.m. on Monday, May 12, 2008, Petitioner stopped at Hefty's home in Birnamwood, Wisconsin and stated that he had a truckload of things which he wanted to store at Hefty's place. Hefty told Petitioner that he could not store the things at his place.

         Andy Fleischman

         Andy Fleischman testified that he knew Petitioner and Buck and that, about 9:00 or 9:30 a.m. on May 12, 2008, Buck called his knickknack shop in Antigo, Wisconsin and asked Fleischman whether he wanted to buy some guns. Because Fleischman thought the guns might be stolen, he told Buck that he would think about it and that Buck should call him back in half an hour. In the meantime, Fleischman called the Langlade County Sheriff's Department to ask whether the sheriff's office could trace guns if he had the serial number for the guns. Buck's name was mentioned during the conversation, and he learned that there were outstanding warrants for Buck's arrest. Later that morning, Buck, Petitioner, and another person arrived at Fleischman's shop and showed him fourteen to sixteen guns in the trunk of their car. Fleischman told the three visitors that he had to go to the bank to get some money and that he would meet them at his house in half an hour. He then left the shop, and the three men went in the opposite direction.

         Mark Hoerman

         Langlade County Investigator Mark Hoerman testified that he surveilled Andy Fleischman's shop on May 12, 2008, because had learned that Buck would be showing up, and he knew that there were two outstanding warrants for Buck's arrest. About 10:00 a.m., he saw a red car arrive at the shop. A few people got out of the car, but they left in the car shortly afterward. He followed the car, and when he stopped it, he saw that Benson was the driver, Petitioner was seated in the front passenger seat, and Buck was in the backseat with some chainsaws and pneumatic tools. He arrested Buck on the two outstanding warrants, and he arrested Petitioner for possession of drug paraphernalia. He removed guns from the trunk of the car.

         Michael Borski

         Michigan state trooper Michael Borski collected the clothes that Petitioner was wearing at the time of his arrest. He noticed what appeared to be a spot of dried blood on Petitioner's belt. He arranged to have the belt processed by the Michigan State Police crime lab.

         Tashia Schwoch

         Petitioner's former girlfriend, Tashia Schwoch, testified that, in October or November of 2007, Petitioner mentioned a handicapped man named Mark Keller who would be an easy target to rob. Petitioner had said that Keller was a drug dealer who never gave his customers a deal. On the evening before Petitioner's arrest, he told her over the telephone that he was about to do something and that he was not sure if he would make it back. On the following evening, Monday, May 12, 2008, Petitioner called her from jail and said that she could take whatever she wanted out of his apartment because he would be in jail for a while. When she and her friend Lanette Steinagel went to the apartment, she noticed a pair of bloody jeans soaking in a pail in the bathtub. In subsequent telephone conversations with Petitioner, he told her to wash the jeans or to get rid of them. She subsequently informed the Langlade County police about the jeans and Petitioner's previous comments about Keller charging too much for his pills and being a good person to rob.

         Henry Puphal

         Henry Puphal testified that he and Tammy Woellner lived with Petitioner, Buck, and a guy named HipHop for about a month before Petitioner was arrested. On Sunday night, May 11, 2008, he went to sleep about 9:00 p.m. He did not hear Petitioner, Buck, and HipHop leave the apartment, but about 5:30 or 6:00 the next morning, he heard the three men come into the apartment. Petitioner and Buck had blood on their pants, and all three men were nervous or agitated. The men had money, and they were whispering about tying someone up with duct tape and beating the man. One of them also talked about the sound of a nose breaking, and Petitioner told Puphal that the reason they did it was because the guy had gotten Petitioner hooked on OxyContin. The men gave Puphal money with which to buy cocaine, and after he returned with the cocaine, the group smoked it. Petitioner, Buck, and HipHop then left the apartment to get rid of some guns.

         Tammy Woellner

         Tammy Woellner testified that she and Henry Puphal were living in Petitioner's apartment with Buck and HipHop in May of 2008. During the afternoon of May 11, 2008, Petitioner was talking with Buck and HipHop about having to settle up with a mean, one-armed man who had OxyContin and a lot of “stuff.” Petitioner asked Buck and HipHop to go with him to settle up with the man. She subsequently fell asleep, but about 5:30 a.m. the next morning, Buck woke her up and asked her to look at some bottles of pills and to explain what the pills were used for. Buck and Petitioner had blood on their pants, and Petitioner told Buck to wash Petitioner's boots. Petitioner told Woellner that whatever she saw in the house stayed in the house. Buck divided up the money that he was counting, and both Petitioner and Buck talked about pawning some guns. The men went to buy cocaine, and when they returned, everyone in the apartment smoked the cocaine. Petitioner, Buck, and HipHop left the apartment about 10:00 a.m. A little while later, she and Puphal got a text message stating that Petitioner, Buck, and HipHop had been arrested and that she and Puphal should get out of the apartment.

         Amelia Proctor

         Forensic scientist Amelia Proctor testified that Keller's DNA was present in a blood stain on the black belt in evidence.

         Jean Belanger

         Detective Sergeant Jean Belanger of the Michigan State Police testified that a list of guns found at Keller's home included nine of the same guns that were seized from Petitioner, Benson, and Buck during their arrest. This information led her to believe that the three men were involved in the robbery at Keller's home and Keller's death. Petitioner, Benson, and Guy were confined at the Langlade County Jail at the time, and she arranged for warrants to seize the men's clothing, the car they had been riding in at the time, and Petitioner's apartment. In addition, Ryan Johnson's white pickup truck, which had been observed on Keller's property on May 12, 2008, was located, and Johnson informed the police about Henry Puphal and Tammy Woellner, whom the police eventually located. At some point, Benson was transferred from Wisconsin to Menominee County, Michigan where he was interviewed. A plea agreement was reached, and Benson agreed to provide truthful testimony.

         Keith Benson

         Benson testified that, he, Buck, Henry, and Tammy were present at Petitioner's apartment on May 11, 2008, when he brought up the idea of a robbery as a way of getting money. It was Petitioner's idea to go to Keller's place. Petitioner said that Keller had only one arm, that Keller would be doped up, and that he wanted to rob Keller because Keller had overcharged him for painkillers. The three men then decided to go to Keller's place, tie him up, beat him, and steal his tools, guns, drugs, and money because he had “ripped off” Petitioner. They stole their friend Johnson's white pickup truck, which was in the parking lot, and went to Keller's place. Petitioner said, “Don't let me kill Keller, ” but the only weapon they took with them was a hammer for the dog they anticipated finding at Keller's residence.

         When they reached Keller's place, Keller admitted him (Benson) and Buck. They proceeded to ask Keller where his drugs and money were. He hit Keller in the chin, according to the plan. Buck beat Keller with the handle of the hammer and used his knee to strike Keller in the head. While Benson attempted to tie up Keller's arm and Buck was beating Keller, Petitioner came inside the home, ran to the back room, and gathered guns and tools. Petitioner later held Keller down as Benson tied up Keller with duct tape. The three men found money, pills, tools, and guns, which they put in the truck. Petitioner stomped on the back of Keller's head and beat Keller with his fist and boot while Keller laid on a sofa. As they were leaving, Petitioner broke the porch light. Back in Wisconsin, they dropped off the guns and chain saws at Mitch's place and then went to Petitioner's apartment where they split the money and smoked some drugs. They changed their clothes, picked up the guns from Mitch's place, and put the guns in Benson's car. They were arrested shortly afterward.

         Benson explained that he was charged with first-degree murder and initially lied to the police, but he subsequently agreed to plead guilty to second-degree murder in exchange for his truthful testimony. The plea agreement called for a minimum sentence of twenty to twenty-five years in prison.

         Defense Witnesses

         Petitioner did not testify, but he presented three witnesses in his defense. The first defense witness was Menominee Police Officer Brooke Foster who testified that she lived about a mile south of where Keller lived and that she took a video of a white Toyota truck at Keller's home on May 11. She took the video because there had been talk about narcotic sales occurring there and she thought the place was worth monitoring.

         The second defense witness, Detective Jean Belanger, testified about her interview with Buck and the similarities and differences between Buck's custodial statement and Benson's trial testimony. Buck told Detective Belanger that Petitioner was the leader of the group and that the plan was for the three men to rob Keller and retrieve some of Petitioner's things. Buck explained that the three men brought duct tape with them to Keller's residence for the purpose of tying up Keller. They taped his eyes so that he could not see Petitioner, who was the only one of the three men who knew Keller. Petitioner also wore a bandana over his face and changed the tone of his voice so that Keller would not recognize him. They filled their trunk with guns and tools and then left Michigan about 2:00 a.m. Back in Wisconsin, they left the stolen items at Mitch Hefty's house about 4:30 or 5:00 a.m. They got $800 in cash, but they never intended for Keller to die.

         Detective Belanger noted that Buck's statement differed from Benson's testimony in the following ways: Buck said that Petitioner and Benson went in the house first, not Benson and Buck; Buck said that he, not Petitioner, initially stayed outside while the beating was happening; Buck denied hitting Keller with a hammer; and Buck denied being involved in the beating. Detective Belanger thought that Benson's facts were more consistent with the evidence than Buck's version of the facts.

         The third and final defense witness was Dr. David Luoma, who testified that Keller was prescribed two different long-acting opiates, which were not commonly prescribed together. Dr. Luoma also stated that Keller had sustained multiple brain injuries and that a blow inflicted by a knee or any violent force to the head could lead to brain stem injuries.

         At the conclusion of the case, the trial court instructed the jurors on felony murder and on the lesser offense of involuntary manslaughter. On October 20, 2009, the jury found Petitioner guilty, as charged, of felony murder, and on January 14, 2010, the trial court sentenced Petitioner to life imprisonment without the possibility of parole.

         B. The Direct Appeal and Post-Conviction Proceedings

         In an appeal of right, Petitioner argued through counsel that: (1) he was entitled to a new trial or an evidentiary hearing on the basis of a letter which Benson wrote to the trial court after Petitioner's trial; (2) his trial attorney was ineffective; and (3) the prosecutor deprived him of due process and a fair trial. The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished, per curiam opinion. See People v. Dulak, No. 296639, 2011 WL 1781898 (Mich. Ct. App. May 10, 2011). On November 21, 2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Dulak, 490 Mich. 912 (2011).

         On November 19, 2012, Petitioner filed a pro se motion for relief from judgment in which he alleged that his trial and appellate attorneys were ineffective. The state trial court denied Petitioner's motion after concluding that Petitioner was competently represented by trial and appellate counsel and that Petitioner's allegations lacked merit. See People v. Dulak, No. 08-003253-FC (Menominee Cty. Cir. Ct. Jan. 14, 2013.) The Michigan Court of Appeals denied leave to appeal the trial court's decision, see People v. Dulak, No. 315164 (Mich. Ct. App. Sept. 24, 2013), and on April 28, 2014, the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Dulak, 495 Mich. 993 (2014). Petitioner filed a second motion for relief from judgment, but the trial court denied the motion because it was a successive motion and barred by Michigan Court Rule 6.502(G). See People v. Dulak, No. 08-003253-FC (Menominee Cty. Cir. Ct. Sept. 16, 2014.)

         C. The Habeas Petition, Amended Brief, and Responsive Pleading

         On July 26, 2014, Petitioner filed his habeas petition. He raised two claims: (1) his trial attorney was ineffective and (2) the prosecutor deprived him of due process and a fair trial. In an amended brief, filed on December 14, 2014, Petitioner raises the following four additional issues: (3) Benson committed perjury at his trial; (4) the trial court's jury instructions were erroneous or incomplete; (5) trial counsel was ineffective; and (6) appellate counsel was ineffective for failing to raise all his claims on direct appeal.

         Respondent Paul Klee argues in an answer to the petition and amended brief that the four new claims (three through six) are barred from substantive review by the one-year statute of limitations and by the doctrine of procedural default. Respondent also contends that the non-retroactivity doctrine applies to Petitioner's claim about the jury instructions. Petitioner replies that his new claims relate back to his timely initial petition, that the non-retroactivity rule is not a bar to review, that the procedural defaults should be excused, and that his original claims warrant habeas relief.

         The United States Supreme Court has said that the statute-of-limitations defense is not jurisdictional, because “[i]t does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'” Holland v. Florida, 560 U.S. 631, 645 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205, 208 (2006)). Thus, the Court may, “in the interest of judicial economy, proceed to the merits of [the] petition.” Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006) (cited with approval in Smith v. Ohio Dep't of Rehabilitation and Corr., 463 F.3d 426, 429 n.2 (6th Cir. 2006)).

         “[A] procedural default, that is, a critical failure to comply with state procedural law, [also] is not a jurisdictional matter.” Trest v. Cain, 522 U.S. 87, 89 (1997). And to obtain relief on procedurally defaulted claims, a habeas petitioner “must establish cause and prejudice for the defaults. He must also show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) (internal citation omitted).

         Claims three through six lack merit for the reasons given below. And because “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits, ” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), the Court “cut[s] to the merits here, since the cause-and-prejudice analysis adds nothing but complexity to the case.” Babick, 620 F.3d at 576.

         II. Standard of Review

         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. ...

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