United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, AND (2) GRANTING PARTIAL CERTIFICATE OF
Corbett O'Meara, United States District Judge.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.”
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.
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
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.
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.
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.
counsel examined Detroit Police Officer Allen Williams about
the lack of forensic evidence collected at the scene.
Id., at 148-170.
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.
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.
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.
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.,
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.
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.
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
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.
on this evidence the jury found Petitioner guilty of
second-degree murder, and he was sentenced as indicated
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
IV. The cumulative effect of error requires that appellant be
granted a new trial.
Michigan Court of Appeals affirmed in an unpublished opinion.
People v. Beltowski, No. 304254, 2012 WL 4800241
(Mich. Ct. App. Oct 9, 2012).
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.
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).
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
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
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.
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.
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).