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Bothel v. Woods

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

July 5, 2017

DENNIS BOTHEL, # 464266, Petitioner,
v.
JEFFREY WOODS, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I.

         A.

         Petitioner 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.

         Two 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.

         On the 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.

         According 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.

         Meanwhile, 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.

         Upon 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.

         Dzikowski's 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 187-90.

         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.

         B.

         Following 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. 5, 2013).

         Petitioner 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).

         Petitioner 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 ineffectiveness?

         In an 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.

         Petitioner 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 ...


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