United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON
J. Tarnow Senior United States District Judge.
matter has come before the Court on petitioner Joseph Damian
Susalla's pro se amended petition for the writ of habeas
corpus under 28 U.S.C. § 2254. The petition challenges
Petitioner's Oakland County conviction for first-degree
(premeditated) murder, Mich. Comp. Laws § 750.316(1)(a).
Petitioner alleges as grounds for relief that: (1)
prejudicial hearsay was admitted at his trial; (2) evidence
of his past violent acts deprived him of a fair trial; (3)
the trial court did not have jurisdiction over him; (4) the
trial court's jury instructions were inadequate; (5) the
trial court deprived him of a competency hearing; (6) the
trial judge was biased and failed to control the proceedings;
(7) the prosecutor failed to protect his rights; (8) he was
constructively denied trial counsel; and (9) appellate
counsel was ineffective. Respondent Mary Berghuis urges the
Court through counsel to deny the petition on grounds that
Petitioner procedurally defaulted some of his claims and the
state-court decisions were not contrary to Supreme Court
precedent, unreasonable applications of Supreme Court
precedent, or unreasonable applications of the facts. The
Court has determined from the pleadings and state-court
record that Petitioner's claims do not warrant habeas
relief. Accordingly, the habeas petition will be denied.
was charged with the murder of Kelley Duberg
(“Duberg”) and tried before a jury in Oakland
County Circuit Court. The Michigan Court of Appeals
accurately summarized the evidence at trial as follows:
Defendant did not dispute that he killed Duberg, his
girlfriend, but claimed that he killed her while in a fit of
rage, and not with premeditation and deliberation.
On the morning of May 23, 2009, which was the Saturday before
Memorial Day, defendant asked his stepfather and mother,
Roger and Karen Wickstrom, if it was okay if he camped on
their property in Crawford County. He planned to take Duberg
with him. Defendant also borrowed a shovel and an ax from the
Wickstroms. The Wickstroms next saw defendant the following
evening, May 24, 2009, when he returned the shovel and ax.
Defendant told the Wickstroms that he and Duberg had not
camped because Duberg was drunk. Based on defendant's
history of violence with women, Karen Wickstrom became
concerned about Duberg's safety. She told defendant that
she wanted to see or talk with Duberg, to which defendant
gave varying responses, such as Duberg was drunk, sleeping,
or not answering her telephone, and had left with another
man. Karen tried calling Duberg on her cellular telephone
over the next two days, but Duberg never answered her
telephone. Finally, on Wednesday, May 27, 2009, Karen called
the Michigan State Police to report Duberg missing.
Sergeant Melinda Logan, who took the missing person report,
went to Duberg's apartment to conduct a welfare check.
Logan did not find Duberg. Logan also sent a police officer
to Duberg's place of employment; her coworkers reported
that Duberg had not appeared for work that week.
That same day, Logan received information that defendant was
at Doug Fletcher's house on Bentler Street in Detroit.
Defendant was taken into custody. After waiving his
Miranda rights, defendant told two Michigan State
Police officers that he had last seen Duberg on Saturday and
that he believed she was with someone named Ian. Duberg's
car, which defendant was known to drive, was found at a
convenience store approximately nine blocks from
Fletcher's house. The car had been backed into the
parking spot, such that the car's license plate was not
According to Fletcher, he saw Duberg's car on his
property on May 25, 2009. He sent Bruce Cousins across the
street to Karen McCartney's house to ask defendant to
move the car. Defendant asked to speak to Cousins alone. He
told Cousins that he had killed someone and buried the body.
He explained that he had hit the person and the person had
urinated and defecated. Defendant further told Cousins that
his girlfriend was passed out at home. Sean Voegler was also
at McCartney's house. Defendant told Voegler that he had
murdered and buried his girlfriend. He explained that he was
jealous over his girlfriend. Defendant stated that his
girlfriend deserved everything that she had received and that
he also wanted to take care of the other man.
On June 5, 2009, the Michigan State Police received consent
from the Wickstroms to search their property in Crawford
County. With the aid of a cadaver dog, the officers found the
buried remains of Duberg. Duberg's body was wrapped in a
shower curtain, tied with extension cords and twine, and
several garbage bags. According to the medical examiner,
Duberg suffered blunt force trauma to her face, which caused
swelling and bruising around her eyes, but the cause of death
was ligature strangulation. The medical examiner testified
that it generally takes ten to 15 seconds for a person being
choked to lose consciousness, but that it takes a few minutes
of strangulation for irreversible brain damage and death to
occur. After defendant was arrested for the killing of
Duberg, he made a telephone call to his mother from jail in
which he stated, “I'm going to try to get it
Defendant testified that he and Duberg argued during the
evening of May 22, 2009. Duberg told defendant that she hated
him, and when he asked her what her problem was, she did not
respond; she just glared at him. Defendant attempted to give
her a hug, but she kicked him in the groin. According to
defendant, he then went into a rage and lost  control of
himself; he stated that he just “blacked out.” He
put his hands around Duberg's neck and strangled her.
When Duberg urinated on him, defendant hit her three times in
the face. And then, after Duberg just laid there for about
two hours, defendant realized that she was dead. He wrapped
her up and buried her the next day. Defendant denied that he
ever planned to kill Duberg. On cross-examination, defendant
admitted that he put a piece of twine around Duberg's
neck. After he punched Duberg, he walked to the kitchen and
took the twine from a drawer. Defendant first claimed that
the twine broke as soon as he placed it around Duberg's
neck and pulled, but then he admitted that he pulled the
twine hard enough to break through the cartilage in
Duberg's neck and applied pressure long enough for Duberg
to lose consciousness and die.
Defendant admitted that he was jealous and controlling with
regard to women and, especially, to the women that he dated.
Barbara Polson and Kenneth McCray, who lived in the apartment
above Duberg's apartment, testified that they often heard
defendant and Duberg argue.
They also heard sounds related to shoving and pushing. Two
weeks before Memorial Day, Polson saw defendant
“pulling” Duberg by the arm. Jeffrey Saucerman,
who knew defendant from AA, testified that it seemed
defendant was jealous in his relationship with Duberg.
Defendant told Saucerman that he checked Duberg's panties
for semen. Telephone records established that on May 12,
2009, defendant called Duberg's cellular telephone 74
times and that on May 13, 2009, he called 78 times. Two of
Duberg's coworkers testified that, based on conversations
with Duberg about defendant, they were concerned for
Duberg's safety. Gregory Barber, Duberg's boss,
testified that he received a note from Duberg on April 22,
2009, stating that she had broken up with her boyfriend and
that she needed to take the day off because she needed to
change the lock on her door and because she needed to go to
Verizon to get a battery for her cellular telephone to
replace the one that defendant had taken. According to Janet
Sylvester, who attended AA with Duberg, Duberg told her two
weeks before she went missing that she was afraid that
defendant was going to kill her.
Deborah Aquilina, defendant's sister, testified that she
called 911 on a day in March 2005 because defendant had
“kicked [her] ass.” She had a bloody nose and a
black eye. Robin Susalla, defendant's wife, testified
that defendant punched her in the face on four or five
occasions. Fletcher testified that he had seen defendant beat
a former girlfriend in the head with a tire iron.
People v. Susalla, No. 299402, 2011 WL 5008586, at
*1-3 (Mich. Ct. App. Oct. 20, 2011) (footnote in original).
was additional evidence that Petitioner's palm print was
found on one of the plastic bags in which Duberg was buried.
On June 14, 2010, the jury found Petitioner guilty, as
charged, of first-degree (premeditated) murder, and on July
6, 2010, the trial court sentenced Petitioner to mandatory
raised his first two habeas claims (the evidentiary issues)
in an appeal as of right, claiming that the trial court erred
reversibly by admitting in evidence (1) Duberg's
out-of-court comment and (2) testimony concerning
Petitioner's prior acts of domestic violence. The
Michigan Court of Appeals determined that Petitioner had not
established “plain error” in the admission of
Duberg's out-of-court statement and that the trial court
did not abuse its discretion in admitting Petitioner's
prior acts of domestic violence. Accordingly, the Court of
Appeals affirmed Petitioner's conviction. See
id. Petitioner raised the same claims in the Michigan
Supreme Court, which denied leave to appeal on April 23,
2012. See People v. Susalla, 491 Mich. 909; 810
N.W.2d 912 (2012) (table).
August 29, 2012, Petitioner commenced this action by filing a
pro se habeas petition and a motion to stay the
federal proceedings. The habeas petition raised the two
claims that Petitioner had presented to the state courts on
direct appeal. In his motion for a stay, Petitioner explained
that wanted to pursue state remedies for several claims that
his appellate counsel had failed to raise on direct appeal.
The Court granted Petitioner's request for a stay and
administratively closed this case on September 29, 2012.
See Order Granting Petitioner's Mot. for a Stay,
ECF No. 4.
subsequently raised several claims in a motion for relief
from the state court's judgment. The trial court found no
merit in Petitioner's jurisdictional claims and
determined that Petitioner was not entitled to relief on his
other claims pursuant to Michigan Court Rule 6.508(D).
See People v. Susalla, No. 09-228601-FC, Op. and
Order (Oakland Cty. Cir. Ct. July 11, 2013). The Michigan
Court of Appeals denied Petitioner's subsequent
application for leave to appeal on the basis that Petitioner
failed to establish entitlement to relief under Rule
6.508(D). See People v. Susalla, No. 317721 (Mich.
Ct. App. Mar. 14, 2014). On September 29, 2014, the Michigan
Supreme Court denied leave to appeal for the same reason.
See People v. Susalla, 497 Mich. 868; 853 N.W.2d 367
October 17, 2014, Petitioner filed an amended habeas corpus
petition and a motion to lift the stay in this case.
See ECF Nos. 5 and 6. The amended petition contains
the two claims that Petitioner presented to the state court
on direct appeal and the seven claims that Petitioner raised
in his motion for relief from judgment. The Court granted
Petitioner's motion to lift the stay and then re-opened
this case. See Order Lifting the Stay and
Reinstating Case, ECF No. 7. Respondent Mary Berghuis
subsequently filed an answer to the petition, see
ECF No. 9, and Petitioner filed a reply, see ECF No.
Respondent asserts that some of Petitioner's claims are
procedurally defaulted, “a procedural default, that is,
a critical failure to comply with state procedural law, is
not a jurisdictional matter.” Trest v. Cain,
522 U.S. 87, 89 (1997). The Court, moreover, has determined
that Petitioner's claims lack merit and that a
procedural-default analysis would “add nothing but
complexity to the case.” Babick v. Berghuis,
620 F.3d 571, 576 (6th Cir. 2010). The Court therefore
proceeds to address the merits of Petitioner's claims,
using the following standard of review.
Standard of Review
U.S.C. § 2254(d) 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 Supreme Court of the United States;
(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 proceedings.
28 U.S.C. § 2254(d). Additionally, this Court must
presume the correctness of state court factual
determinations. 28 U.S.C. § 2254(e)(1).
decision of a state court is “contrary to”
clearly established federal law 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. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable application
occurs” when “a state-court decision unreasonably
applies the law of [the Supreme Court] to the facts of a
prisoner's case.” Id. at 409. 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. Rather, that
application must also be unreasonable.” Id. at
alleges that the trial court erred reversibly by admitting
Janet Sylvester's testimony that, about two weeks before
Duberg was discovered missing, Duberg told her that she was
afraid Petitioner was going to kill her. (Trial Tr. Vol. IV,
at 55-56, June 10, 2010.) Petitioner claims that this was
prejudicial hearsay, which deprived him of a defense and his
right to due process because he could not cross-examine
Duberg. The Michigan Court of Appeals reviewed this claim for
“plain error” because Petitioner did not preserve
the claim for appellate review by objecting to the
out-of-court statement in the trial court. The Court of
Appeals then concluded that Petitioner failed to establish
plain error because Duberg's statement was relevant to
the question of whether she had provoked Petitioner, as he
claimed. The Court of Appeals also stated that
[e]ven if the admission of Duberg's out-of-court
statement constituted plain error, defendant fails to carry
the burden that the error prejudiced him, i.e., that the
error affected the outcome of the proceedings. Given all the
evidence concerning the relationship of defendant and Duberg,
which indicated defendant's jealousy and discord between
the two, and the evidence that Duberg died from ligature
strangulation, we cannot conclude that the error, if there
was error, affected the outcome of defendant's trial.
Susalla, 2011 WL 5008586, at *3 n.2 (internal
Court finds no merit in Petitioner's hearsay claim
because it is based on the Michigan Rules of Evidence.
“To the extent that any testimony and comments violated
Michigan's rules of evidence, such errors are not
cognizable on federal habeas review.” Hall v.
Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991).
claim lacks merit even if it were construed as one brought
under the Confrontation Clause of the United States
Constitution, which guarantees the defendant in a criminal
prosecution “the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI.
“The Amendment contemplates that a witness who makes
testimonial statements admitted against a defendant will
ordinarily be present at trial for cross-examination, and
that if the witness is unavailable, [her] prior testimony
will be introduced only if the defendant had a prior
opportunity to cross-examine [her].” Giles v.
California, 554 U.S. 353, 358 (2008) (citing
Crawford v. Washington, 541 U.S. 36, 68 (2004)). In
other words, “[w]here testimonial evidence is at issue,
. . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination.” Crawford, 541 U.S. at 68.
term “testimonial” “applies at a minimum to
prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police
interrogations.” Id. Consistent with
Giles and Crawford, as well as, Davis
v. Washington, 547 U.S. 813, 822 (2006), “
‘statements to friends and neighbors about abuse and
intimidation' allegedly inflicted by [the petitioner] are
nontestimonial statements and are not subject to the
Confrontation Clause.” Doan v. Carter, 548
F.3d 449, 458 (6th Cir. 2008).
made the contested statement about Petitioner to a friend.
Thus, to the extent Petitioner raises his claim under the
Confrontation Clause, his claim lacks merit, because
Duberg's statement is not subject to the Confrontation