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Compeau v. Romanowski

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

October 31, 2017

DENNIS COMPEAU, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Arthur J. Tarnow Senior United States District Judge.

         This matter is before the Court on Petitioner Dennis Compeau's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Compeau challenges his conviction for assault with intent to commit criminal sexual conduct involving penetration and attempted kidnapping. He challenges the conviction on four grounds: 1) the trial court erred in considering him a fourth habitual offender and departing upwards when resentencing; 2) his sentence is a departure unsupported by substantial and compelling reasons; 3) his attorney provided ineffective assistance by failing to pursue an alibi defense; and 4) a suggestive photo array violated his due process rights. Respondent, through the Attorney General's Office, has filed an answer in opposition to the petition arguing that all of the claims are meritless. The Court denies the petition and declines to issue a certificate of appealability.

         I. Background

         Compeau's convictions arise from the assault and attempted kidnapping of Michelle Krappe in Mount Pleasant, Michigan.

         On April 2, 1998, Krappe was walking home at 8:00 p.m. when she noticed a white van driving nearby. The van followed her for a short distance and eventually pulled over. The driver of the van, who she later identified as Compeau, asked Krappe if she needed a ride and she declined. He made a few more statements, but Krappe continued walking home. She heard the driver turn off the van and saw him get out. He approached, touched her arm, and began screaming obscenities at her before attempting to lead her to the van. [ECF No. 10-12 at 139.] Krappe screamed for help. The attacker punched her in the face, splitting her lip, but she was eventually able to break free and saw people coming toward her to help. The attacker got back into the van and drove away.

         Shortly after the incident, Krappe drew a freehand picture of the man. The following day she assisted a police sketch artist with a computer composite of the attacker. When presented with a photo array, she identified Compeau as the man who attacked her. Compeau's attorney was present for the photo array.

         Robert and Barbara Elmore were in the neighborhood at the time the attack occurred. Sometime after 8:00 p.m., they noticed two people in front of a parked white van. Mr. Elmore heard what he thought was a “slap or a smack” and both heard a woman screaming for help. [ECF No. 10-12 at 199.] Mrs. Elmore began screaming at the man to get away from the woman and ran toward the two people. The attacker got into the van and drove away, so Mr. Elmore ran to his vehicle to chase the van. When the chase was unsuccessful, Mr. Elmore returned to the scene and called the police.

         Mount Pleasant police officer Cary Murch was called to the Elmore's house that night. He took a statement from Krappe and observed that she had a cold compress on her lip. After speaking with Krappe and the Elmores, he issued a “be on the lookout” (“BOL”) for an individual who was 5'8” tall and 180 pounds, with blue eyes and long, blond, curly hair, who was driving a white Ford van.

         The next day, another officer stopped a white van driven by a man with long, blond, curly hair and called Officer Murch to the scene, believing that the driver matched the description in the BOL. Officer Murch went to the site of the traffic stop and saw Compeau in the back seat of the officer's car.

         The officer then took Compeau to the police station, where he was interviewed by Detective David Tuma. Compeau told Tuma that he never left his girlfriend's trailer on April 2, 1998.

         Earlier in the evening on April 2, 1998, John W. McKenzie, Jr., who lives in Remus, observed his tenant's teenage daughter speaking with someone in a white van sometime between 5:00 and 6:00 p.m. He watched the van pull away after 30 to 40 seconds, but noticed that it was driving very slowly and doing “head checks” to look at the teenager and her friend. [ECF No. 10-13 at 393.] He noticed the van again between 6:00 and 7:00 p.m. that evening and once more at about 9:30 p.m. At the final sighting, Mr. McKenzie was suspicious and attempted to follow the van, but was unsuccessful. He never called the police.

         Mr. McKenzie's neighbor, Fred Nostrant, also noticed the white van in the neighborhood between 5:00 and 5:30 p.m. on April 2, 1998. He testified that he saw the van later, between 7:30 and 7:45 p.m. that evening, and called the police between 8:10 and 8:20 p.m. He indicated that he spoke to Mr. McKenzie about the van before he made the call. Mr. Nostrant further testified that the police report, indicating that he had seen the van at 8:20 p.m., was inaccurate.

         Compeau was arrested and booked in the Isabella County Jail on April 3, 1998. In August of 1998, Compeau's girlfriend, Linda Richardson, was charged with helping him attempt to escape from the jail.

         In December of 1998, a jury in the Isabella County Circuit Court found Compeau guilty of assault with intent to commit criminal sexual conduct and attempted kidnapping. On December 30, 1998, he was sentenced as a fourth habitual offender to concurrent prison terms of 25 to 50 years for the assault conviction and 20 to 40 years for the attempted kidnapping conviction.

         Compeau filed an appeal of right in the Michigan Court of Appeals, raising the following claims: (i) the trial court erred by allowing the bailiff's testimony; (ii) the trial court erred by allowing evidence of Compeau's escape attempt; and (iii) his sentence was disproportionately severe. The Michigan Court of Appeals affirmed Compeau's conviction. People v. Compeau, 244 Mich.App. 595 (Mich. Ct. App. 2001). He filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Compeau, 465 Mich. 861 (2001).

         In May 2002, Compeau filed a habeas petition in this Court, raising the following claims:

I. The trial court violated his Sixth and Fourteenth Amendment rights by admitting the testimony of a court bailiff; and
II. The trial court abused its discretion by admitting evidence of his plan to escape from jail.

         The Court denied habeas relief. Compeau v. Birkett, No. 2:02-cv-71944 (E.D. Mich. May 21, 2003).

         In 2013, Compeau filed a motion to correct an invalid sentence and motion for relief from judgment. In his motion for invalid sentence, he argued that his current sentence was based upon inaccurate information in his presentence report. In his motion for relief from judgment, he raised the following claims:

I. Appellate counsel did not provide effective assistance where counsel failed to raise meritorious constitutional claims;
II. Appellate counsel did not provide effective assistance when counsel failed to place a witness on the stand to ...

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