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Beltowski v. Brewer

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

November 14, 2017

KEVIN MICHAEL-DORMAN BELTOWSKI, Petitioner,
v.
SHAWN BREWER, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (2) GRANTING PARTIAL CERTIFICATE OF APPEALABILITY

          John Corbett O'Meara, United States District Judge.

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Kevin Michael-Dorman Beltowski was convicted after a jury trial in the Wayne Circuit Court of second-degree murder, Mich. Comp. Laws § 750.317. Petitioner was sentenced as a third-time habitual felony offender to 20 to 40 years in prison.

         The petition raises six substantive claims and makes two additional procedural arguments: (1) the trial court erroneously instructed the jury on self-defense, (2) insufficient evidence was presented at trial to sustain the verdict, (3) the trial judge's conduct deprived Petitioner of a fair trial, (4) newly discovered evidence shows that voluntary drug use was a substantial contributing cause of the victim's death, (5) the prosecutor engaged in misconduct, (6) Petitioner was denied the effective assistance of trial counsel, (7) Petitioner is entitled to an evidentiary hearing, and (8) Petitioner has demonstrated cause to excuse any state court procedural defaults.

         The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will, however, grant Petitioner a certificate of appealability with respect to his self-defense jury instruction claim, but it will deny a certificate of appealability with respect to his other claims.

         I. Background

         This case involves the death of Timothy Moraczewski occurring on September 26, 2010. Moraczewski was killed at a marijuana grow-house in Detroit he operated together with Petitioner. The cause of death was asphyxiation. The victim was found by his brother and another man with a nylon strap attached to a rifle that was tightly twisted around his neck. Petitioner admitted he fought with the victim on the date of his death, but he claimed the death was the result of an accident or self-defense after the victim attacked him. The prosecutor's theory was that during the physical altercation Petitioner intentionally killed the victim by continuing to strangle him with the rifle strap after the victim lost consciousness.

         At trial, John Bechinski testified he was the forensic pathologist who performed the autopsy on the victim. Dkt. 5-5, at 72. He opined that the cause of death was asphyxia, and the manner of death was homicide. Id. Bechinski noted there was a ligature mark on the victim's neck, indicating that he did not die as the result of manual strangulation, but an implement was used to cut-off blood flow to his head. Id., at 76. Bechinski testified that in cases of strangulation, a person will typically lose consciousness in ten to fifteen seconds, and if pressure is continued to be applied death will typically occur within a few minutes. Id., at 79.

         Bechinski also did a toxicology analysis on the victim, and he found the presence of hydrocodone and alprazolam (Vicodin and Xanax). Id., at 84. Vicodin is an opiate, and both drugs are sedatives that depress the central nervous system. Id., at 84-85. The levels for both drugs were elevated, meaning the victim may have been seDated: the time of his death. Id., at 88. Bechinski nevertheless opined that asphyxia was the cause of death, and that it was not an overdoes. Id., at 88-89. Bechinski could not say whether the medications were a contributing cause of death. Id., at 89.

         Bechinski also noted abrasions and bruises all over the victim's body consistent with him having been in a fight. Id., at 91-92. Bechinski examined the nylon strap of a rifle provided by the police, and he opined that it was consistent with the injury to the victim's neck. Id., at 95.

         Among other things, defense counsel cross-examined Bechinski about the drugs found in the victim's system. Dkt. 5-6, at 9-10. Bechinski conceded that he did not know the victim's tolerance for the drugs. Id. Bechinski could not say how the drugs affected the victim. Id., at 11.

         Jeffrey Moraczewski testified he was the victim's brother. Id., at 50-51. Moraczewski knew Petitioner for seventeen years, and he had worked for Petitioner's roofing company. Id., at 52-53. Moraczewski testified the victim also worked for and had been long-time friends with Petitioner. Id., at 54.

         Aside from the roofing business, Petitioner ran a marijuana grow operation at a house located in Detroit. Id., at 57-58. Petitioner financed the operation by renting the house and providing the equipment, and Petitioner stayed at the house to watch over the operation. Id., at 58-59. The operation was going on for about two years at the time of the victim's death. Id., at 61.

         Moraczewski explained that his brother had a bad knee and bad back from roofing, so he worked exclusively at the grow operation. Id., at 62. The victim took pain medications as a result of his roofing injuries. Id., at 63-64. Moraczewski believed Petitioner and the victim shared equally in the profits from the grow house. Id., at 66.

         At the time of his brother's death, Moraczewski testified that there was tension between Petitioner and the victim. Id., at 67. Petitioner wanted to start a second grow house without the victim. Id., 68. Petitioner planned to remove the equipment from the house where the victim stayed and move it to a second house where Petitioner's brother would take over operations. Id., at 68. Petitioner spoke to Moraczewski about how he would need to sneak the equipment out of the house, and that the house was in foreclosure anyway. Id., at 69-70. Another source of tension between the two men was the fact Petitioner and the victim were competing over the affections of the same women. Id., at 71-75.

         On Sunday evening, September 26, 2010, Moraczewski received a phone call from Petitioner's number which he initially ignored. Id., 82. A few seconds later Moraczewski received a text message from Petitioner stating, “911. Call me now.” Id., at 83. Moraczewski called Petitioner back. Petitioner told Moraczewski that he just had a fight with the victim, and “I choked your brother out with his own fuckin' gun.” Id., at 86. Petitioner explained to Moraczewski that “I choked him out until he turned purple. And I held it for another thirty seconds.” Id.

         Petitioner told Moraczewski the fight started when Petitioner told the victim he was going to remove the grow equipment. Id., at 88. The victim was angry and shot a round into the wall next to Petitioner with his rifle. Id., at 89. The men then began to fight, and Petitioner got on top of the victim. Id. Petitioner said he was able to unsheathe the victim's knife from his side. Petitioner pointed the knife at the victim's face, but then he threw it across the room. Id., at 92-93. Petitioner did not tell Moraczewski there was a struggle for control of the rifle. Id., at 98.

         Petitioner told Moraczewski that when he was choking his brother with the rifle strap, the victim tried to “tap out, ” meaning he was indicating he wanted to give-up. Id., at 100. Petitioner told Moraczewski he responded to the victim, “Do you think I'm gonna let you tap out this time, bitch?” And then he continued to choke the victim for another thirty seconds. Id., at 101. Petitioner told Moraczewski that his brother was “not as strong as he thinks he is. He's a pussy.” Id.

         Moraczewski asked Petitioner if he killed his brother. Id., at 102. Petitioner answered that the victim was still breathing when he left the house. Id., at 102. Petitioner told Moraczewski with a sense of urgency that he better go over to the house, however, to see if the victim was still alive. Id., at 102. Moraczewski was very concerned, and he immediately called his sister and brother-in-law so they could go together to the house. Id., at 102-03.

         Shortly thereafter Moraczewki arrived at the house with his brother-in-law. They went inside and found the victim lying on a couch. Id., at 107-13. Items were thrown everywhere. Id., at 114. The victim's body was twisted in a strange position. Id., at 114. Moraczewski saw a strap wrapped around his brother's neck. Id. He appeared to be dead. Id., at 116. Moraczewski tried to take the strap off, but it was too tight to even fit a finger underneath it. Id., at 117. Finally, he rotated the rifle attached to the strap four times to loosen and remove it. Id., at 119-122. They then drove the victim to a near-by hospital where he was declared dead. Id., at 123. Moraczewski called Petitioner to tell him that the victim was dead, and Petitioner responded by text, stating, “Tell me this is a joke.” Id., at 105. Moraczewski subsequently told the police everything Petitioner told him and what he saw when he arrived at the grow house. Id., at 132 ff.

         Michael Mitchell testified he was Jeffrey Moraczewski's brother-in-law. Dkt. 5-7, at 23. He had known the victim for eighteen years, and he had known Petitioner for about seven years. Id., at 24. He testified that on the date of his death, he received a text message from the victim at 5:45 p.m., lamenting the Detroit Lion's recent loss. Id., at 29-30. About fifteen to twenty minutes later, he got the message from Moraczewski about Petitioner's call. Id., at 31, 35. Moraczewski picked him up and they drove to the victim's house. Id. They got to the house around 6:30 p.m. Id., at 34.

         Mitchell saw the victim lying on the couch. Id., at 35. He appeared to be. Id., at 35-36. Mitchell saw the strap attached to the victim's neck and the rifle on his back. Id. He could not get his finger between the strap and the victim's neck. Id., at 38. Mitchell heard Moraczewski yell, “You didn't loosen the strap, ” as if he were speaking to Petitioner. Id., at 39-40. The strap was twisted around the back of the victim's neck, and they had to rotate the rifle at least three times to remove it. Id., at 42.

         Detroit Police Officer Frank Hilbert testified he spoke with Moraczewski at the hospital, and Moraczewski told him what Petitioner told him on the phone. Id., at 124-147. Moraczewski told Hilbert that Petitioner said he choked-out the victim after they had a fight. Id., 148. Moraczewski told Hilbert about Petitioner's statements regarding wrapping the gun around victim's neck and holding it there for thirty seconds. Id., at 148-49. He continued to twist the strap until the victim's lips and face turned purple. Id., at 150.

         Defense counsel examined Detroit Police Officer Allen Williams about the lack of forensic evidence collected at the scene. Id., at 148-170.

         Gerald Kapinsky testified for the defense. Kapinsky said he was friends with both Petitioner and the victim. Dkt. 5-9, at 66-104. Kapinsky stopped his relationship with the victim because Kapinsky was concerned about his and his family's safety. Id., at 74. The victim had a reputation of being “different, weird . . . kind of scary, ” Id., at 78-79, wanting “to go out and, and beat somebody up, ” and he was “psychotic.” Id., at 81. The victim carried a rifle and knife at all times, and he had shot four or five males with birdshot from a shotgun at Finney High School which was located directly across the street from the grow house. When Tim was at the grow house he was always armed. Id., at 121. Kapinsky testified that when the victim was on Vicodin he was “definitely stronger, ” but the Xanax made him slow down. Id., at 123. The victim had a big bottle of Vicodin that he would “eat” every morning. Id.

         Petitioner testified in his own defense. He testified that the day before the incident, he tried to come to the grow house, but the victim told him to come the next day. Id., at 191. When Petitioner arrived the next day just before 6:00 p.m., the victim had a rifle slung over his neck and a knife strapped to his side. The victim was agitated and was angry about Petitioner's visit. Id.

         Petitioner testified the grow operation needed to be moved because the house was in foreclosure. Petitioner suggested to the victim they split up the operation with the victim keeping the plants and Petitioner taking the equipment. Id., at 198. The victim became very angry at this suggestion, so Petitioner sat on the couch because he did not want to fight. Id., at 201-204. Nevertheless, the victim pointed the rifle at Petitioner and said, “You think I'm gonna let you walk out of here, like that . . . tell me I won't shoot you.” Id., at 204-207. The victim tried to fire the rifle, but the safety was on. He then fired a shot past Petitioner's head that hit the wall. Id., at 207-208. Subsequent investigation, in fact, discovered a bullet hole through a wall in the house.

         Petitioner threw his hands in the air and told the victim to take everything, and the victim stepped back. Id., at 208. Petitioner then tried to leave the house, but the victim grabbed him at the door and said, “You're not going anywhere.” Id. The two men began to wrestle and landed on the couch. Id., at 211. Petitioner testified he grabbed the barrel of the rifle as the victim began to point it at him. Id., at 211. Petitioner fell on top of the victim, and he kept telling the victim to stop as he attempted to point the rifle at him. Id., at 213-14.

         When the victim did not stop, Petitioner felt his life was in danger, so he let go of the rifle and grasped the strap and applied pressure. Id., at 214. Petitioner testified he never twisted the strap like a tourniquet. Id., at 217. The victim rolled over and stood up, but Petitioner managed to hold onto the strap. Id., at 218-19. The victim tried to “tap” and give up, but Petitioner did not release the pressure on the strap because he was afraid for his life. Id., at 219-20.

         Petitioner pulled the victim back onto him and they both fell onto the couch. Petitioner was lying on his back, and the victim was lying on top of him with his back to Petitioner. Id., at 221-22. Petitioner could see the side of the victim's face and saw that he lost consciousness, and he held the strap tight against his neck for another three second. Id., at 223. Petitioner saw and heard that the victim still breathing, so he found his keys and left the house. Id., at 223-24.

         On cross-examination, Petitioner testified he left the house as soon as the victim lost consciousness. Dkt. 5-10, at 78. He denied he told Jeffrey that he continued to apply pressure for an additional thirty seconds after the victim was unconscious. Id., at 78. He denied he twisted the strap around the victim's neck on purpose, and he did not know it was twisted when he left the house. Id., at 81.

         Once he was back in his truck Petitioner called the victim's brother, believing the victim was still alive. Dkt. 5-9, at 226. Petitioner asked him to contact the victim and attempt to reason with him. When Petitioner learned that Jeffrey did not hear back from the victim, Petitioner said he should go to the house and check on him. Id., at 229.

         Based on this evidence the jury found Petitioner guilty of second-degree murder, and he was sentenced as indicated above.

         Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised four claims:

I. The cumulative effect of the prosecutor's misconduct denied defendant a fair trial.
II. Trial court error infringed on defendant's due process rights to a fair trial.
III. Ineffective assistance of counsel denied Defendant a fair trial.
IV. The cumulative effect of error requires that appellant be granted a new trial.

         The Michigan Court of Appeals affirmed in an unpublished opinion. People v. Beltowski, No. 304254, 2012 WL 4800241 (Mich. Ct. App. Oct 9, 2012).

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals, and adding an additional claim:

I. Defendant-Appellant's appellate counsel was ineffective where she failed to raise non-frivolous issues on appeal and failed to offer Defendant-Appellant the necessary assistance he needed to file a timely Standard 4 supplemental brief on appeal.

         The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Beltowski, 493 N.W.2d 968 (Mich. 2013) (table).

         Petitioner subsequently returned to the trial court and filed a motion for relief from judgment. The motion raised five claims:

I. Defendant Beltowski was denied due process of law and a fair trial when an erroneous self-defense instruction was given, which deprived him of the defense by instructing the jury that he could not claim self-defense if: (1) he “acted wrongfully, ” (2) “brought on the assault, ” (3) “and was limited to using self- defense only, to protect himself from the imminent unlawful use of force by another, ” and (4) only for such time “as it seems necessary for the purpose of protection.”
II. Newly discovered evidence that high levels of hydrocodone and alprazolam ingested by the deceased significantly contributed to his death requires a retrial.
III. The verdict was against the great weight of evidence.
IV. Defendant Beltowski was denied his right to effective assistance of counsel when 1) he failed to investigate and present toxicology evidence that the high levels of hydrocodone and alprazolam significantly contributed to the death, 2) failed to object to an erroneous jury instruction on self-defense, and 3) failed to object to specific instances of professional misconduct in the prosecutor's closing argument.
V. The prosecutor engaged in misconduct in his closing argument by vouching for his witness and arguing matters not in evidence. Defendant Beltowski has met the procedural requirements of good cause and actual prejudice under MCR 6.508(D) and an evidentiary hearing is required.

         The trial court denied the motion for relief from judgment. Dkt. 5-18. The court found that review of Petitioner's new claims were barred under Michigan Court Rule 6.508(D)(3), and because he had failed to demonstrate “merit in any of the . . . arguments posited.” Id., at 8.

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same claims. The Michigan Court of Appeals denied the application for failure to establish entitlement to relief under Rule 6.508(D). People v. Beltowski, No. 326192 (Mich. Ct. App. June 22, 2015). Petitioner then applied for leave to appeal in the Michigan Supreme Court, but that court also denied leave to appeal with citation to Rule 6.508(D). People v. Beltowski, 882 N.W.2d 130 (Mich. 2016) (table).

         II. ...


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