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Day v. Warren

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

November 1, 2017

JILL DAY, Petitioner,
v.
MILLICENT WARREN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY IN PART

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Petitioner Jill Day, currently in the custody of the Michigan Department of Corrections, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through counsel. She challenges her convictions for assault with intent to commit murder and felony firearm.

         The petition raises five claims: (i) insufficient evidence supports Petitioner's conviction for assault with intent to commit murder; (ii) the admission of irrelevant, prejudicial evidence and irrelevant opinion testimony denied Petitioner her right to a fair trial; (iii) the prosecutor committed misconduct by discussing facts not in evidence and eliciting improper opinion testimony; (iv) Petitioner was denied her right to a fair and impartial jury when the jury panel viewed her in restraints; and (v) defense counsel was ineffective. For the reasons explained below, the Court denies the petition. The Court grants a certificate of appealability in part.

         I. Facts

         The Michigan Court of Appeals provided this overview of the circumstances leading to Petitioner's convictions:

The victim, Steven Podschwit, was shot at six times in his driveway while trying to leave for work early one morning. Two bullets hit him in the chest and arm. He testified that he witnessed a dark-colored minivan slowly drive by after the shooting. Other witnesses also reported seeing a dark blue minivan in the driveway of a house next to the victim's home. The police determined that defendant drove a dark blue Honda Odyssey minivan and owned a .45 caliber handgun. However, the police could not locate the handgun and defendant could not provide an explanation as to where it could be. When the police searched defendant's house they found targets used for shooting practice; defendant had visited the shooting range a week before the incident. Moreover, the police found a torn photograph of the victim's house and driveway in defendant's house. The victim testified that he was receiving blocked phone calls from someone prior to the incident. These phone calls were traced to a phone number for a prepaid cell phone for which defendant had phone cards. The victim's ex-wife also testified that she received a phone call from a female inquiring about the victim's address and work location. The police were able to determine that this phone call came from the same prepaid cell phone. The jury convicted defendant of assault with intent to murder and felony-firearm.

People v. Day, No. 306104, 2012 WL 6604704 (Mich. Ct. App. Dec. 18, 2012). Also relevant to the case is the relationship among several individuals: Steven Podschwit, Guy Fisher (Guy), Nicole Fisher (Nicole), and the Petitioner. After being shot, Podschwit told police that he thought Guy might be the shooter because Guy previously accused Podschwit of having an affair with Guy's wife, Nicole. ECF No. 4-6, Pg. ID 560-62. Guy admitted to his wife Nicole that he had an extramarital affair with Petitioner. ECF No. 4-7, Pg ID 713. Nicole and Guy Fisher owed Petitioner over $110, 000, a debt that had accumulated over a period of years. The Court addresses additional relevant testimony below.

         II. Procedural History

         Petitioner was convicted by a jury in St. Clair County Circuit Court of assault with intent to commit murder and felony firearm. She was sentenced on August 19, 2011, to 15 to 50 years for the assault conviction, to be served consecutively to two years for the felony-firearm conviction. Petitioner filed a motion for new trial on the ground that the verdict was against the great weight of the evidence. The trial court denied the motion. (ECF No. 4-14).

         Petitioner filed an appeal of right in the Michigan Court of Appeals presenting the following claims: (i) the verdict was against the great weight of the evidence and insufficient evidence supported the convictions; (ii) the prosecutor was improperly permitted to admit irrelevant, highly prejudicial evidence and to elicit opinion testimony; (iii) prosecutor committed misconduct by discussing facts not in evidence and eliciting improper opinion testimony; (iv) Petitioner was denied right to a fair and impartial jury when the jury viewed her in restraints; and (v) ineffective assistance of counsel. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Day, No. 306104, 2012 WL 6604704 (Mich. Ct. App. Dec. 18, 2012).

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The application was denied. People v. Day, 836 N.W.2d 688 (Mich. 2013).

         Petitioner then filed this petition for a writ of habeas corpus. She raises these claims:

I. The evidence is insufficient to sustain Petitioner Day's conviction for assault with the intent to commit murder and therefore it would be a denial of due process and a denial of Ms. Day's federal constitutional right to be free from conviction in the absence of proof beyond a reasonable doubt to allow Ms. Day's conviction to stand.
II. Petitioner Day was denied her due process right to a fair trial under the federal constitution when the prosecutor was permitted to admit irrelevant, but highly prejudicial evidence, as well as elicit irrelevant opinion testimony regarding the evidence in an improper attempt to bolster the state's case.
III. Ms. Day was denied her due process right to a fair trial under the federal constitution when the prosecutor engaged in severe outcome-determinative misconduct by discussing facts not in evidence and repeatedly eliciting improper opinion testimony.
IV. Petitioner was denied her federal constitutional right to a fair and impartial jury where the jury panel impermissibly viewed her in restraints.
V. Petitioner was denied the effective assistance of counsel guaranteed by the federal constitution where her trial attorney, with no strategic purpose, made several outcome-determinative errors.

         III. Standard

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:

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; or
(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 proceeding.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An “unreasonable application” occurs when “a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

         The AEDPA “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotations omitted). A “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) (quotation omitted). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. Pursuant to section 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have previously been rejected in the state courts, a federal court may grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. A “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002).

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id. Moreover, for claims that were adjudicated on the merits in state court, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         IV. Discussion

         A. Sufficiency of the Evidence (Claim I)

         Petitioner claims that insufficient evidence was offered to prove beyond a reasonable doubt that she is guilty of assault with intent to commit murder.

         “[T]he 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). On direct review, review of a sufficiency of the evidence challenge must focus on whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the ...


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