United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE.
a habeas corpus case under 28 U.S.C. § 2254. Petitioner
Timothy Kyle, a state prisoner proceeding pro se, challenges
his convictions for first-degree murder, kidnapping, armed
robbery, and burning personal property. Petitioner was tried
before a jury on charges that he kidnapped, robbed, and
stabbed or slashed to death an 87-year-old woman on March 7,
2009, and then burned her truck. He raises ten (10) claims
for relief. Respondent says Petitioner's claims are time
barred, procedurally defaulted or lack merit. The Court
agrees. Accordingly, the petition will be denied. The reasons
follow. Because of the number and complexity of the claims, a
detailed discussion of the evidence at trial and applicable
law is necessary.
Evidence at Trial
Michigan Court of Appeals accurately summarized the evidence
at trial as follows:
Defendant first met the victim about two weeks before her
death, was seen at the victim's house on the day of her
disappearance, and lived directly across the street from the
victim. When the victim and her daughter, Dorothy Wonsey,
initially met defendant sometime between February 18, 2009,
and March 1, 2009, defendant asked the victim for a ride to
the drug store. But as Wonsey recollected, the victim asked
Wonsey to drive defendant because the victim “was
scared.” The victim later told Wonsey that she felt
“very uncomfortable” about defendant and,
“I'm not going to let him in the house. I don't
want him at my house.” In the victim's last contact
with her other daughter, Joanne Pagan, who met defendant for
the first time on March 7, 2009, the victim voiced concern
about defendant's “nosey” nature and his
comment about the victim having been left “well
off.” The victim's two daughters and son-in-law all
testified that after having met defendant shortly before the
victim's disappearance, they repeatedly urged the victim
to keep her doors locked and to call one of them for
assistance if defendant appeared at her home asking for
anything. According to the victim's relatives, the victim
agreed to this method of operation. On two occasions during
the week or so before the victim's disappearance, she did
call either Joanne Pagan or Everett Pagan to advise them that
defendant had come to her house seeking a ride.
Other evidence connected defendant to the victim's house,
like the presence of a couch armrest cover in the portion of
the victim's driveway where she always parked her pickup
truck, an armrest cover identical to the one on a couch in
defendant's residence across the street, which was
missing one of its armrest covers when the police searched
the house on March 9, 2009. Dog tracking testimony confirmed
that a police dog had followed a scent trail from the
victim's porch, to the armrest cover in her driveway, to
cut telephone wires at the rear of the victim's house,
and back across the street to defendant's front porch.
The aforementioned evidence all combined to give rise to
reasonable inferences that defendant had cut the victim's
telephone wires before she could call for help, entered her
house, gagged the victim with the armrest cover, and
transported the victim away from her house while driving her
pickup truck. The evidence further substantiated that
defendant drove the victim in her pickup truck to the Orchard
Trail, where he eventually threw the victim's body into a
creek or ditch.
The record concerning the scene inside the victim's house
lent further circumstantial support to the jury's finding
that the victim accompanied defendant out of her house
against her will. The testimony of the victim's daughters
and son-in-law confirmed as highly uncharacteristic the
condition in which the Pagans and the police discovered the
victim's house on March 8, 2009. The victim had left a
pan of cooked hamburger on the stove; her kitchen and living
room lights and a television and coffee pot were all left on.
The victim had also left the house without her purse or
either of two hats that she habitually wore.
People v. Prince, No. 296922, 2011 WL 4375109, at
*3-4 (Mich. Ct. App. Sept. 20, 2011).
evidence was presented at trial came from Gregory and Brenda
Rushlow. They testified that they dropped off Rushlow's
sister, Cathy Manty, at Manty's home about 10:30 p.m. on
March 7, 2009. On their way out of Manty's driveway, they
saw a man, who hurried back to an old truck when he saw them
and then drove away. Three days later, they viewed a
photographic array and identified Petitioner as the man they
had seen on the night of March 7, 2009.
Gordy and Charles McClure each testified that they saw a
burning truck on 32 Mile Road after 10:00 p.m. on March 7,
2009. They also saw a man, or possibly a large woman, walking
alongside the road not far from the burning truck. Gordy said
that the person was wearing dark clothing. McClure described
the man's clothes as “army-style fatigues.”
Sheriff Jonathan Ramlow testified that he responded to the
truck fire about 10:50 p.m. that night. The truck was about a
quarter mile from the victim's home. The Macomb County
Sheriff's Department determined the owner of the truck,
but the dispatcher was unable to reach the owner by telephone
after the truck was discovered.
jury also heard the following timeline as to the events
leading up to Petitioner's arrest. The victim's
son-in-law Everett Pagan reported the victim missing on
Sunday, March 8, 2009. Upon receipt of this information,
employees of the Macomb County Sheriff's Department
compared information that they had received about the burning
truck to information about the missing victim and determined
that the missing victim was the owner of the burned truck.
Later that day, Macomb County Deputy Sheriff Timothy Davis
met Pagan at the victim's home where Pagan pointed out
things that seemed odd or out of place, such as a tire track
alongside the driveway, lights and appliances that had been
left on, and a rag or armrest cover where the victim normally
parked. The canine search leading from the armrest cover on
the victim's property to Petitioner's home occurred
on the same day.
Monday, March 9, 2009, Michael Jarosz noticed the
victim's body in a ditch as he was biking on the Macomb
Orchard Trail. Macomb County Sergeant David Kennedy estimated
that the body was two and half to three miles from the
victim's home. There was a cocked and loaded flare gun
underneath the victim's body and a beer can nearby; the
beer can did not appear to be related to the crime.
March 9 or 10, 2009, Deputy Sheriff Christopher Land found a
flare gun shell and a small folding pocket knife in a sports
coat pocket in Petitioner's home. The flare was unusual
because it had white packing on the tip. Detective Sergeant
David Willis compared the flare gun shell found near the
victim's body with the one found in Petitioner's
house and determined that they had been altered in similar
March 10, 2010, Macomb County Deputy Sheriff Sharon Furno
found a camouflage jacket and two matching boots in a ditch
not far from Petitioner's home on 32 Mile Road. On March
11, 2009, a search team found a filet knife about twenty-five
feet from where the victim's body was found.
the victim's manner of death, Dr. Daniel Spitz performed
the autopsy on the victim and testified that the victim's
most significant injury was an incised wound that cut through
her jugular vein. He testified that the victim also suffered
from multiple stab wounds of the chest and abdomen, and she
had defensive knife wounds on her hands and forearms. The
cause of death was stab wounds of the abdomen and the incised
wound of the neck; the manner of death was homicide. Dr.
Spitz opined that a basic filet knife could have made the
evidence linking Petitioner to the crime came from the
testimony of Eric Shuman. He testified that he knew
Petitioner from having worked with him in 2007. He claimed
that Petitioner once showed him a flare gun like the one in
evidence. Petitioner told him at the time that he modified
the flare gun shells by putting BB's from shot gun shells
into the flares to make it a shotgun/flare mixture.
further testified that he met Petitioner again in jail in
2009 where Petitioner told him about the murder case.
Petitioner informed him that the prosecution's case was
fake and that the lady who lived with him committed the crime
with the victim's son or son-in-law and then threw his
clothes in a ditch. Shuman admitted that, in return for his
cooperation with the prosecution, he was released from jail
two or three days early and was given an extra ninety days to
pay a fine.
Sandra Berry testified that she rented a house across the
street from the victim's home and that Petitioner and his
son were leasing rooms from her in March of 2009. She
testified that on Saturday, March 7, 2009, about 9:10 p.m.,
Petitioner left the house wearing a camouflaged hat, jacket,
and boots. She could not recall whether his pants also were
camouflaged or whether they were blue jeans. Petitioner
stated that he was going to the nearby party store, but he
returned about 10:30 or 10:45 p.m.
also identified the jacket, boots, flare gun, knife, and
armrest cover in evidence as items that belonged to
Petitioner or that she had seen in the house which she shared
with Petitioner. Berry also denied dating or conspiring with
Everett Pagan to kill the victim. She also denied conspiring
with anyone to remove Petitioner from the house.
defense presented several witnesses and argued to the jury
that there were plenty of things that should cause the jury
to have reasonable doubt in the case.
January 22, 2010, the jury found Petitioner guilty, as
charged, of premeditated murder, M.C.L. § 750.316(1)(a),
felony murder, M.C.L. § 750.316(1)(b), kidnapping,
M.C.L. § 750.349, armed robbery, M.C.L. § 750.529,
and arson of personal property valued at $1, 000 to $20, 000,
M.C.L. § 750.75(1)(a)(i). The trial court sentenced
Petitioner as a habitual offender to concurrent terms of life
imprisonment without any possibility of parole for the two
murder convictions, twenty-five to sixty years in prison for
the kidnapping and armed robbery convictions, and three
years, four months to seven and a half years for the arson
direct appeal, Petitioner argued through counsel that (1) his
double jeopardy rights were violated when he was convicted of
two counts of first-degree murder for the death of one
victim, (2) there was insufficient evidence of kidnapping,
and (3) the trial court erred by failing to give the standard
jury instruction on dog tracking, and defense counsel was
ineffective for failing to object. In a pro se
supplemental brief, Petitioner raised issues about in-court
identifications of him, the prosecutor's conduct, the
admission of certain evidence, and his absence from a
suppression hearing. The Michigan Court of Appeals affirmed
Petitioner's convictions, but remanded the case so that
Petitioner's judgment of sentence could be amended to
reflect a single conviction and sentence for first-degree
murder, supported by two different theories. See
Prince, 2011 WL 4375109, at *1 and *12.
pro se application for leave to appeal in the
Michigan Supreme Court, Petitioner raised claims about the
in-court identifications, the lack of counsel at the
photographic show-ups, and the prosecutor's conduct. The
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the issues. See People v.
Prince, 809 N.W.2d 591 (Mich. 2012).
filed this action on April 9, 2013, Doc. 1, but later moved
to hold the petition in abeyance while he pursued additional
state remedies. See Doc. 7. The Court granted the
motion and closed this case for administrative purposes.
See Doc. 10.
subsequently moved to reinstate his habeas corpus petition
and to have the Court adjudicate the claims listed in his
habeas petition. See Doc. 16. The Court granted
Petitioner's motion and directed Respondent to answer the
petition. See Doc. 17. Before Respondent's
answer was due, Petitioner moved for a second stay so that he
could pursue state remedies. See Doc. 19. The Court
granted the motion. See Doc. 20.
then filed a motion for relief from judgment in the trial
court. He argued that the trial court deprived him of his
right to present a defense, that the prosecutor committed
misconduct, that the investigating officers mishandled
evidence, and that his trial and appellate attorneys were
ineffective. The trial court rejected Petitioner's
claims. See People v. Prince, No. 2009-002294-FC,
Op. and Order (Macomb Cty. Cir. Ct. Sept. 1, 2015). The
Michigan Court of Appeals denied leave to appeal the trial
court's decision “for lack of merit in the grounds
presented.” See People v. Prince, No. 331823
(Mich. Ct. App. May 20, 2016). The Michigan Supreme Court
denied leave to appeal because Petitioner failed to establish
entitlement to relief under Michigan Court Rule 6.508(D).
See People v. Prince, 888 N.W.2d 81 (Mich. 2016).
returned to this Court on February 15, 2017, with an amended
habeas petition containing ten grounds for relief (Doc. 22)
and a motion to re-open this case (Doc. 21).
Standard of Review
U.S.C. § 2254(d), provides:
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).
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[this] precedent.' ” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
“[T]he ‘unreasonable application' prong of
§ 2254(d)(1) permits a federal habeas court to
‘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 petitioner's case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413).
state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Accordingly,
[w]hen reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015)
(per curiam). “As a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
simple terms, the Supreme Court has said that the standard of
review is “difficult to meet” and is a
“highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting
Richter, 562 U.S. at 102, and Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)). The Supreme Court has further said that a
federal court must guard against “using federal habeas
corpus review as a vehicle to second-guess the reasonable
decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010).
a federal habeas court must presume the correctness of state
court factual determinations. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption only with
clear and convincing evidence. Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998).
Statute of Limitations
initial matter, Respondent argues that Petitioner's first
three claims are barred by the statute of limitations. 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)). “[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). In the interest of
efficiency, therefore, the Court goes directly to the merits
of Petitioner's claims.
first ground for relief, Petitioner says that his
constitutional right not to be placed in double jeopardy was
violated when he was convicted and sentenced for two
homicides involving one victim. Petitioner raised this claim
in his appeal of right. The Michigan Court of Appeals
resolved the problem by remanding Petitioner's case for
correction of the judgment of sentence to reflect one
conviction and sentence for first-degree murder, supported by
two different theories. See Prince, 2011 WL 4375109,
at *1 and *12. Because Petitioner was granted the relief he
seeks, his claim is moot, and he concedes this in his reply
brief. See Doc. 26, page 6. Thus, there is no basis
for granting relief on his claim.
claims next that there was insufficient evidence at trial to
support his kidnapping conviction. Petitioner contends that
there was no evidence that the victim did not go willingly to
the truck with him, and he argues that there may have been an
intervening cause of death, such as a dispute in the truck.
The Michigan Court of Appeals adjudicated this claim on the
merits on direct appeal and concluded that the elements of
the offense were satisfied.
Supreme Court has held “that the Due Process Clause
protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). Following
Winship, the critical inquiry on review of a
challenge to the sufficiency of the evidence supporting a
criminal conviction is
whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt. But this inquiry
does not require a court to “ask itself whether
it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Instead,
the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of
the trier of ...