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Susalla v. Berghuis

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

June 14, 2017

MARY BERGHUIS, Respondent.


          Arthur J. Tarnow Senior United States District Judge.

         This 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.

         I. Background

         Petitioner 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[1] 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 visible.
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 down.”
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).

         There 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 life imprisonment.

         Petitioner 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).

         On 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.

         Petitioner 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 (2014).

         On 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. 16.

         Although 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.

         II. Standard of Review

         28 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; 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 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).

         A 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 410-11.

         III. Analysis

         A. Hearsay

         Petitioner 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 citations omitted).

         This 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).

         Petitioner's 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.

         The 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).

         Duberg 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 Clause.

         B. ...

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