United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker Judge.
REPORT AND RECOMMENDATION
Kent United States Magistrate Judge.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Karl Cornelious
Cotton 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.
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.
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
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
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.)
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.
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.
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.
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.)
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.)
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.
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.)
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
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
THE WITNESS: I don't have to change nothing.
DETECTIVE HEUGEL: Yes, you do.
THE WITNESS: She's . . . never called me from that