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Cotton v. MaCkie

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

March 8, 2018

THOMAS MACKIE, Respondent.

          Honorable Robert J. Jonker Judge.


          Ray Kent United States Magistrate Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Karl Cornelious Cotton[1] is incarcerated with the Michigan Department of Corrections (MDOC) at Chippewa Correctional Facility (URF) in Chippewa County, Michigan. On April 25, 2012, a Kent County Circuit Court jury found Petitioner guilty of perjury in response to an investigative subpoena regarding a crime punishable by imprisonment for life, Mich. Comp. Laws § 767A.9(1)(b). On May 31, 2012, the court imposed a sentence of 16 to 40 years.

         Petitioner appealed to the Michigan Court of Appeals. The court of appeals affirmed the judgment of conviction and sentence in an opinion entered on December 19, 2013.

         Petitioner subsequently filed an application for leave to appeal to the Michigan Supreme Court. The Michigan Supreme Court denied the application on May 27, 2014, because it was not persuaded that the questions presented should be reviewed by that court.

         Petitioner timely filed his habeas corpus petition in March 2015, raising the following issues:

I. Was there sufficient evidence proven by the prosecution beyond a reasonable doubt that the defendant was guilty[?]
II. Is the prosecutor prohibited from providing defense counsel and the court of appeals copies of the petition for investigative subpoena by MCL 767a. (2)(5) for the reason that it is confidential and not permitted to be copied for public use?
III. Was the Defendant denied the effective assistance of counsel at trial where counsel failed to object to a witness not being placed under oath at trial, failed to impeach a witness, and failed to subject the prosecutor's case to adversarial testing, which amounted to a denial of the defendant's constitutional right to due process of law, a fair trial, and effective assistance of counsel. U.S. Const. Amends. V, VI, XIV?
IV. Was the Defendant denied a fair trial where the key prosecution witness was never sworn to testify under oath pursuant to MRE 603, denying him his constitutional right to confrontation? U.S. Const. Amends. V, VI, XIV.

(Pet., ECF No. 1, PageID.5-9.)

         Respondent has filed an answer to the petition (ECF No. 9) stating that the grounds should be denied because they meritless and/or procedurally defaulted. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.


         I. Factual allegations

         Petitioner's conviction stems from testimony that he gave in response to a prosecutor's investigative subpoena. On March 5, 2011, police discovered the body of Jamie Powell in Walker, Michigan. She had died from multiple gunshot wounds, so the police department opened a homicide investigation. As part of their investigation, the police became interested in questioning Petitioner. They issued him a subpoena to give testimony about his knowledge of any facts surrounding Ms. Powell's death.[2]

         Before the interview with Petitioner, Detective Brandyn Heugel learned from the Law Enforcement Information Network (LEIN) that Petitioner's telephone number as of March 8, 2011, was 269-519-7137. (ECF No. 10-8, Trial Tr. II, 184.) This number was associated with a Boost Mobile account activated on December 22, 2010. (Id. at 137, 187.) Heugel also learned that Petitioner was on parole, and she spoke to Petitioner's parole officer, Angela Biggart.

         Biggart served as Petitioner's parole officer from December 2010 to May 2011, in Benton Harbor, Michigan, after Petitioner was released from a supervision program known as “TRV.” (Id. at 98-99, 108-10.) As of January 2011, Biggart had the following phone number in her records as the number to contact Petitioner: 269-861-0865. (Id. at 100.) Biggart had difficulty reaching Petitioner at that number, so she asked him if there was another number where he could be reached. Petitioner gave her the following number: 269-519-7137. (Id. at 101-05.) In April, Petitioner gave Biggart a new number: 269-519-7464. (Id. at 106, 185.) This number had been activated on March 6, 2011, one day after the shooting of Jamie Powell. (Id. at 138, 196.)

         During the course of her investigation, Detective Heugel obtained a call log for the 7137 number. She discovered that the phone number for Petitioner's girlfriend, Kendra Thomas, received over 400 calls from the 7137 number in the weeks leading up to the murder (February 20 through March 8, 2011). (Id. at 192-93, 195.) The phone number for one of Petitioner's acquaintances, James Coleman, received over 200 calls from the 7137 number during that time period, and Petitioner's father received 19 calls. (Id. at 194-95.) In addition, Petitioner's parole officer received at least one call from the 7137 number in February 2011. (Id. at 241.)

         Heugel also obtained voicemail messages left at the 7137 number. Some of these messages were intended for a person identified by the caller as “K.C., ” and one of the messages was an automated message from the MDOC for Karl Cotton. (Id. at 230.) The prosecutor played these messages for the jury.

         The police interviewed Petitioner under oath on June 30, 2011. (Id. at 183.) The assistant prosecutor read a transcript of this interview to the jury. (Id. at 197-229.) In the interview, Petitioner testified that his current cell phone number was 519-7464, and that he had acquired it about two weeks after he was released from “TRV.” (Id. at 207-08.) He never used another person's cell phone on a regular basis. (Id. at 208.) He never had another cell phone number. (Id. at 209, 224, 228.) He acknowledged knowing James Coleman, and would speak with him on the phone “almost every day.” (Id. at 218.) He also acknowledged that some people call him “K.C.” (Id. at 213.)

         When the 7137 number came up in the interview, the following exchange occurred between Detective Heugel and Petitioner:

DETECTIVE HEUGEL: Okay. Then what's the number 269-519-7137?
THE WITNESS: I don't know. I don't - that's not my number, so -
DETECTIVE HEUGEL: According to your parole agent, it is or it was until recently.
THE WITNESS: She must have -
DETECTIVE HEUGEL: So, no, I don't think so. That's been on your records for quite a while.
THE WITNESS: She must have had a wrong number. She is not --
DETECTIVE HEUGEL: You've got a chance here to change your testimony.
THE WITNESS: I don't have to change nothing.
THE WITNESS: She's . . . never called me from that ...

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