Alfetlawi v. Klee

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Petitioner Rahim Alfetlawi (“Petitioner”), confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner challenges his convictions in a Michigan state court for the following: first-degree premeditated murder in violation of Michigan Compiled Laws § 750.316(1)(a); possession of a firearm during the commission of a felony (felony-firearm) in violation of Michigan Compiled Laws § 750.227b; and carrying a firearm with unlawful intent in violation of Michigan Compiled Laws § 750.226. The state trial court sentenced Petitioner to life imprisonment without the possibility of parole for the murder conviction, two years' imprisonment for the felony-firearm conviction, and two to five years' imprisonment for the other firearm-related conviction. For the reasons stated below, this Court is denying the petition for a writ of habeas.

         I. Background

         A jury convicted Petitioner of the aforementioned offenses following a trial in the Macomb County Circuit Court.

         At Petitioner's trial, Dianne Fauer testified that she resided at 24915 Tallman in Warren, between Hoover and Van Dyke off of Ten Mile Road, since the 1970's. (10/12/12 Trial Tr. at 6-8.) Fauer testified that she had a daughter, Wendy Wasinski, and a 19-year-old granddaughter, Jessica Mokdad. (Id. at 11; 10/16/12 Trial Tr. at 126.) Jessica's father was Mohammed Mokdad. (10/16/12 Trail Tr. at 124.) In 2000, Wasinski married Petitioner and moved with him first to Tennessee and then to Minnesota. (10/12/12 Trial Tr. at 9-11; 10/16/12 Trial Tr. at 122-123, 130-131.)

         In 2008, Jessica began dating a high school classmate named Michael Robertson. (10/16/12 Trial Tr. at 6-9, 140-141). Petitioner found out in December of that year that Jessica and Michael were having sexual intercourse. (Id. at 43, 141.) As a result, Petitioner and Wasinski drove Jessica and Robertson 12 hours to Michigan so that Jessica and Robertson could be “married” in a mosque “in the eyes of their religion.” (Id. at 19, 73, 141.) Jessica and Michael participated in the ceremony because they “wanted to be with each other, ” and felt forced by Petitioner. (Id. at 12, 73.)

         In 2009 and 2010, Jessica and Michael resided in Coon Rapids in Wasinski and Petitioner's apartment. (Id. at 9-10, 18-19, 142.) Jessica revealed to Michael that Petitioner had begun repeatedly sexually assaulting her when she turned 18 years old. (Id. at 20, 72-73.) The sexual assaults were “[o]ral, vaginal, and anal, ” (id. at 20), on nights when Michael was not in the apartment. (Id. at 20-21.) Michael urged Jessica to go to the police. (Id.) She refused and urged Michael not to confront Petitioner directly, fearing that Petitioner would kill Jessica or her mother. (Id. at 22-23.)

         Petitioner's apartment was a “small, cramped place with a lot of [surveillance] cameras.” (Id. at 13-14, 137-138.) Wasinski testified that all the cameras were connected to Petitioner's bedroom, (id. at 138-139), with a voice-activated audio recording in Jessica's bedroom. (Id. at 139.) Michael testified that he assumed Petitioner had recording devices throughout the apartment because Petitioner often seemed to know what Michael and Jessica had been discussing in private. (Id. at 14.)

         Michael testified that Petitioner engaged in verbal and physical altercations with Wasinski and physically assaulted Jessica on several occasions. (Id. at 21, 23, 145-146.) Petitioner would “slap” Jessica across the face with an open hand when “he would get angry.” (Id. at 21-22.) Michael tried to intervene, imploring Petitioner to “stop.” (Id. at 22.)

         In July 2010, Jessica left her family and returned to Michigan to live with her biological father, Mohammed Mokdad, in Grand Blanc. (Id. at 15, 24, 146-147.) Michael remained with Petitioner and Wasinski in Coon Rapids. (Id. at 15-16, 148.) In August 2010, Michael relocated to Michigan and resided with Jessica and Jessica's biological father in Grand Blanc. (Id. at 15-18, 24, 148.) Petitioner telephoned Michael several times, stating, “I'm gonna fucking kill you!” (Id. at 25-26.) Michael testified that he heard similar threats directed at Jessica on her speakerphone. (Id. at 26-27.)

         Before Christmas 2010, Jessica and Michael moved to Fauer's house on Tallman in Warren. (10/12/12 Trial Tr. at 13-14; 10/16/12 Trial Tr. at 15, 24-25, 30, 154.) Michael worked at a Tim Horton's and Jessica attended school at Macomb County Community College. (10/16/12 Trial Tr. at 31, 84.) Michael testified that he and Jessica continued receiving threatening calls from Petitioner and that Jessica was afraid of Petitioner. (Id. at 31-33.)

         In late 2010, Petitioner persuaded Wasinski to install spyware on Jessica's cellular telephone during one of Wasinski's visits to Michigan. (Id. at 150-155.) When she visited her family for Christmas in 2010, Wasinski installed spyware on Jessica's cellular telephone. (Id. at 155-156.) As a result, the spyware listed the details of Jessica's incoming and outgoing telephone calls and Petitioner could “read her text messages on this website from anybody.” (Id. at 156.) Petitioner, who was living in Minnesota, “wanted to sit [at his computer] all day and night monitoring [Jessica's] situation.” (Id. at 157.)

         On March 26, 2011, Petitioner and Wasinski came to Michigan at Petitioner's suggestion to visit Wasinski's ailing grandmother. (Id. at 34-35, 162-164.) “Everything was calm and normal” and the family had “a typical meet and greet” at the house after visiting Wasinski's grandmother at her nursing home. (Id. at 34-35, 165.) Petitioner began pressing Jessica to return to Minnesota. (10/12/12 Trial Tr. at 17-19; 10/16/12 Trial Tr. at 35, 165-166). Jessica responded: “No. I got school and I'm trying to find work, Mike has work, we can't move back.” (10/16/12 Trial Tr. at 35.) Petitioner became more aggressive, started yelling, and at one point “smacked” Jessica across the face with an open hand. (10/16/12 Trial Tr. at 36.) He screamed that Jessica “better come home” or she was “gonna have a bad day.” (Id.) Jessica eventually left Fauer's house with Petitioner and Wasinski, returning with them to Minnesota. (10/12/12 Trial Tr. at 19-21; 10/16/12 Trial Tr. at 38, 93.) Jessica informed Wasinksi and later her friend Chuba that Petitioner had said: “If you don't come with me, I'll kill you.” (10/12/12 Trial Tr. at 19; 10/16/12 Trial Tr. at 94-95, 170.)

         Between March 26, 2011, and April 4, 2011, Petitioner “never wanted to let [Jessica] out of his sight.” (10-17-12 Trial Tr. at 9-10.) Jessica accompanied Wasinski to Wasinski's job and one day told her mother that she could not “live this way” and wanted to “do something with her life.” (Id. at 11.) On April 4, 2011, Wasinski agreed to help Jessica “take the train back to Michigan.” (10/16/12 Trial Tr. at 39, 98-103; 10/17/12 Trial Tr. at 11.) Wasinski also told Jessica about the spyware on Jessica's cellular telephone, advising “her [to] get another phone” and periodically talk to friends about unimportant things on the old telephone. (10/17/12 Trial Tr. at 15.) When Wasinski returned to the apartment, she distracted Petitioner, which allowed Jessica to pack her belongings. (Id. at 11-12.) Wasinski told Petitioner she needed Jessica's help at work the next morning, but instead “took [Jessica] straight to the train” station. (Id. at 12-14). Later that day, Wasinski told Petitioner that Jessica “just took off while [Wasinski] was at work.” (Id.)

         On the train, Jessica struck up a conversation with Robert Marlow, who noticed that Jessica was “obviously distraught” as she used her cellular telephone for texting and talking. (Id. at 94.) Jessica told Marlow about the “pattern of abuse, physical, verbal, and . . . mental, emotional abuse at the hands of her stepfather.” (Id. at 95-96.) Jessica had her clothes in “two garbage bags.” (Id. at 96-97.) She told Marlow that Petitioner threatened to kill her. (Id. at 98-99, 116-117.) According to Marlow, Jessica “truly believed that [Petitioner] was capable and willing to kill her.” (Id. at 99, 116-117.)

         On April 29, 2011, Wasinski was sitting in her vehicle speaking on her cellular telephone with Jessica, when Jessica said “I need to tell you that [Petitioner] has raped me before.” (Id. at 17.) Jessica indicated to her mother that she did not tell her because Jessica was “scared” that Petitioner would kill her. (Id. at 17.) After this conversation, Wasinski arrived home between 5:00 p.m. and 6:00 p.m. (Id. at 18.) As Wasinski cooked dinner, Petitioner left the apartment for a period of 45 minutes. (Id.). When he returned, his demeanor had radically changed. (Id. at 18-19.) He was “very agitated” and “very nervous.” (Id. at 19.) Petitioner seemed to be “in a hurry.” (Id.). He told Wasinski that he wanted to help Fauer “tomorrow over at your grandma's apartment to clean it up.” (Id.) Wasinski had mentioned this family project a few days earlier but Petitioner had not responded. (Id.) Wasinski testified that she was “very tired” and told her husband that she did not want to go. (Id.) Wasinski knew Petitioner had placed audio recording devices in her vehicle in the past. (Id. at 19-20.) Less than two hours after Wasinski returned home, Petitioner left for Michigan. (Id. at 20.)

         The following day, April 30, 2011, Fauer was at the seniors' complex where her mother had lived and she was removing items from her mother's apartment. (10/12/12 Trial Tr. at 21-23.) Fauer arrived at 1:00 p.m. and various family members, including Jessica, assisted her in the move until 3:00 p.m. (Id. at 23-25.) At some point, Petitioner appeared at the apartment. (Id. at 24.) Fauer was not aware that Petitioner was in Michigan. (Id. at 25.) Fauer heard Petitioner tell Jessica that he “wanted to speak with her, maybe get a cup of coffee.” (Id. at 27.) He said “he wanted to make things right between them.” (Id.) Jessica then left with Petitioner. (Id. at 27-28.) When Fauer left about 30 to 45 minutes later and returned home, she saw Jessica's black Grand Am outside the house. (Id. at 28-31.) The house appeared to be empty, however. (Id. at 32.) Fauer entered the house, calling Jessica's name. (Id. at 33.) When she got to Jessica's bedroom door, Fauer saw Jessica “slumped on the floor, her back against the bedroom door.” (Id.) Jessica's hair “was strewn across her eye area” and “she was very still.” (Id.) Fauer reached down to touch Jessica's hand and it felt cold to her. (Id.) Jim, another family member who had followed Fauer home, entered the house. (Id.). Jim yelled, “Call 9-1-1, she's bleeding from the mouth!” (Id.)

         Theresa Kerr testified that she was working as a police dispatcher for the Center Line Public Safety Department on April 30, 2011, when Petitioner walked into the lobby at approximately 3:00 p.m. and told her “he had killed his stepdaughter.” (10/12/12 Trial Tr. at 95-103.) Jessica died of a gunshot to the side of her head, made with a nine-millimeter handgun. (10/12/12 Trial Tr. At 68, 84.) Petitioner was arrested and subsequently tried and convicted of the above-listed offenses.

         Petitioner's convictions were affirmed on appeal. People v. Alfetlawi, No. 313855, 2014 WL 4263222 (Mich. Ct. App. Aug. 28, 2014). The Michigan Supreme Court denied Petitioner leave to appeal. People v. Alfetlawi, 862 N.W.2d 182 (2015). On June 11, 2015, Petitioner filed the pending habeas petition, seeking relief on the following grounds:

I. The trial court abused its discretion and deprived defendant of a fair trial and due process of law, as well as his Sixth Amendment right to cross-examination by admitting, over objection, testimony regarding (1) defendant's repeated sexual and general physical assaults upon the decedent and her mother, (2) repeated threats against the physical and emotional well-being of decedent and others, (3) the stalking and surveillance defendant subjected decedent to, (4) the fear and hatred decedent and others had of defendant, and (5) defendant's mental state and obsession with ...