United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
Dennis Bothel, a state prisoner, seeks habeas corpus relief
under 28 U.S.C. § 2254. Petitioner Bothel is serving
concurrent sentences of 8 to 20 years for first-degree home
invasion and 6 to 10 years for assault with intent to commit
great bodily harm after he was convicted by a jury in Macomb
County Circuit Court. His current petition raises nine
claims: (1) the trial court failed to instruct the jury on
lesser offenses, (2) a mistrial should have been declared
after the prosecutor erroneously accused Petitioner of
presenting false evidence, (3) the prosecutor suppressed
evidence of the victim's medical records and criminal
history, (4) insufficient evidence was presented to sustain
the convictions, (5) Petitioner's trial counsel was
ineffective during the plea bargaining process, (6)
Petitioner's right to confront witnesses was violated by
limitations placed on his cross examination of a prosecution
witness, (7) Petitioner's trial was rendered unfair by
the introduction of irrelevant evidence, (8) Petitioner was
denied the effective assistance of counsel at trial, and (9)
Petitioner can establish cause and prejudice to excuse his
procedural defaults. Bothel's petition will be denied
because his claims are without merit or barred by his state
court procedural default. Petitioner will be also be denied a
certificate of appealability and denied permission to proceed
on appeal in forma pauperis.
Bothel's state court conviction arose out of an incident
that occurred in the home of Michael Dzikowski in the early
morning hours of April 2, 2011. At the jury trial commencing
on March 28, 2012, Dzikowski testified that he was
Petitioner's neighbor in Clinton Township. See
Trial Tr. 140, ECF No. 9-3. Dzikowski further testified that
he had an ongoing affair with Petitioner's wife, Nicole
Williams. Id. at 142-43. According to the testimony
of Starla Weissinger, a mutual friend of Dzikowski and
Petitioner, Petitioner was informed of the affair in October
of 2010 by Ms. Weissinger. Id. at 201.
days before the April 2, 2011 incident, Dzikowski testified
that he intervened in a physical altercation between
Petitioner and Ms. Williams. Id. at 143. Then, on
April 1, 2011, Petitioner told Ms. Weissinger that he was
going to kill Dzikowski. Id., at 205.
night of the incident, Dzikowski testified that he returned
home from Lipsticks Bar and Grill and fell asleep on his
couch. Id., at 144. He woke up when someone struck
him in the head with a hammer. Id. at 144-45.
Dzikowski allegedly rolled off the couch, and grabbed the
assailant's ankles. Id. at 145. The assailant
said, “[t]hat's what you get for sleeping with my
wife” as he fled the scene. Id. Dzikowski
testified that he recognized Petitioner as the man who
assaulted him. Id. at 148.
to Ms. Weissinger, Petitioner attempted to contact her
multiple times at around three o'clock in the morning.
Id. at 206-07. After Ms. Weissinger answered the
phone, Petitioner asked Ms. Weissinger to be his alibi for
the assault, and to report that he had gone up north.
Id. at 208. Petitioner admitted to her that he hit
Dzikowski in the head with a hammer as he was sleeping on a
couch, and had told Dzikowski, “that's what you get
for sleeping with my wife.” Id. at 208-10.
Petitioner also told her that he had attempted to look
through Dzikowski's cell phone. Id.
after Petitioner left, Dzikowski testified that he crawled to
his neighbor's house. The neighbor then called 9-1-1.
Id. at 148. Dzikowski was transported to a hospital,
where he required nine staples to close a gash on the back of
his head. Id. at 149, 153, 168.
returning home from the hospital, Dzikowski found that his
cell phone was missing. Id. at 154. He testified the
he used his mother's phone to call his phone, and that
Petitioner answered. Id. at 155-56. Dzikowski
demanded the return of his phone, after which Petitioner
drove up to Dzikowski's house and threw the phone at him
from his car. Id. at 156-57. Dzikowski testified
that Petitioner was armed with a metal pipe at the time.
Id. at 156.
brother Steven testified that before Petitioner returned the
phone, Petitioner used Dzikowski's phone to call him.
According to Steven, Petitioner left a voice message asking
if he was “doing the same thing” - presumably
sleeping with Petitioner's wife - and whether Steven
wanted “the same thing to happen to [him, ]” -
presumably, being attacked like Dzikowski. Id. at
trial, Petitioner attempted to defend against the charges by
arguing that he was not the assailant, and that Dzikowski and
the other witnesses were lying because they disliked him.
See Tr. 83-90, ECF No. 9-4. The jury apparently
rejected this defense, and found Petitioner guilty of one
count of first-degree home invasion in violation of Michigan
Compiled Law § 750.110a(2), and one count of assault
with intent to commit great bodily harm in violation of
Michigan Compiled Law § 750.84. On May 8, 2012
Petitioner was sentenced to 8 to 20 years on count one, and 6
to 10 years on count two, to run concurrently. See
Sentencing Tr. 20-21, ECF No. 9-5.
sentencing, Petitioner filed a claim of appeal. His appellate
counsel filed a brief in the Michigan Court of Appeals
raising the following claims:
I. Did the trial court abuse its discretion and violate
Defendant's rights to due process of law and a fair trial
in refusing to instruct the jury on lesser included offenses
of entry without breaking, entry without permission,
felonious assault, aggravated assault and assault where there
was evidentiary support for those lesser offenses?
II. Did the trial court err in denying Defendant's motion
for mistrial based upon police and prosecutorial misconduct
in falsely accusing Defendant of forgery and fraud upon the
court, causing Defendant to file a grievance against the
prosecutor, thereby depriving Defendant of a fair trial and
due process of law, constituting manifest injustice?
III. Did the prosecutor fail to disclose and promptly produce
discovery of the medical and criminal records of the
complaining witness, necessary for an effective
cross-examination of the complaining witness? Was this
failure compounded by the serious mistake of defense counsel
in failing to formally move for the production of these
records? Did the combined malfeasance deprive Defendant of
due process and a fair trial?
IV. Was there insufficient evidence that Defendant had
committed a home invasion or an assault with intent to do
great bodily harm in violation of Michigan law and the Due
Process Clause of the Michigan and United States
Constitutions, which require sufficient evidence to convict a
Defendant of a criminal offense?
The Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. People v.
Bothel, No. 310900, 2013 WL 6331732 (Mich. Ct. App. Dec.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims. He also
added a claim that appellate counsel was ineffective for
combining a prosecutorial misconduct and ineffective
assistance of counsel claim under a single argument heading
(claim III). Finally, he added an additional claim that his
counsel was ineffective during the plea bargaining stage. The
Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed
by the Court. People v. Bothel, 845 N.W.2d 493
(Mich. 2014) (Table).
then returned to the trial court and filed a motion for
relief from judgment, raising the following claims:
I. Did the trial court violate Defendant's right of
confrontation and cross-examination, where he sought to
question prosecution witness Starla Weissinger about a
criminal complaint Defendant filed against her and her
boyfriend which may have affected the witness's bias,
interest or motive to testify falsely. U.S. Const, Ams V, VI;
Const 1963, Art I § § 17, 20?
II. Was Mr. Bothel denied due process when the prosecution
introduced a plethora of irrelevant and unduly prejudicial
evidence of other bad acts at his trial; and trial counsel
was ineffective for failing to object?
III. Was Defendant deprived of his right under the Sixth
Amendment to the United States Constitution and under §
20 Article 1, of the Michigan Constitution 1963 to the
effective assistance of defense counsel.
IV. Should the court grant relief from judgment because the
Defendant can establish good cause for not bringing his
appellate issue before the court previously and actual
prejudice due to trial and appellate counsel's
opinion dated December 12, 2014, the trial court denied the
motion for relief from judgment, finding that review of
Petitioner's claims was barred because he had failed to
demonstrate good cause for failing to raise the instant
issues on appeal, as required by Michigan Court Rule
6.508(D)(3)(a), and because the court did not conclude that
there was a significant possibility that Petitioner was
innocent of the subject crimes. See Op. & Ord.
at 4, ECF No. 9-8.
then filed an application for leave to appeal in the Michigan
Court of Appeals, attempting to raise the same claims raised
in the motion for relief from judgment. The Michigan Court of
Appeals denied the application for leave to appeal “for
failure to meet the burden of establishing entitlement to
relief under Mich. Ct. R. 6.508(D).” People v.
Bothel, No. 148496 (Mich. Ct. App. Nov. 4, 2015).
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court, but it was also denied with citation