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McCallum v. Barrett

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

March 20, 2018

MARK McCALLUM, Petitioner,
v.
JOSEPH BARRETT, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.

         Petitioner Mark McCallum is a state prisoner in the custody of the Michigan Department of Corrections. A jury in the Mason County Circuit Court convicted McCallum of two counts of parental kidnapping, MICH. COMP. LAWS § 750.350a(1). The state trial judge sentenced McCallum to concurrent terms of 28 months to 15 years' imprisonment.

         On August 29, 2016, McCallum filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) McCallum raises two claims in his petition: (1) there was insufficient evidence presented at trial to disprove his defense that he took the children to prevent their mother from abusing them, and (2) he was denied his right to counsel when the state trial court failed to conduct a new waiver-of-counsel hearing at the beginning of each day of trial. (See id.)

         The Court has reviewed McCallum's claims and concludes that they are without merit. Therefore, the Court DENIES McCallum's petition. The Court further DENIES McCallum a certificate of appealability and DENIES him permission to appeal in forma pauperis.[1]

         I

         The charges against McCallum arose from allegations that he fled from Michigan with his two minor children to Key West, Florida in violation of a court order granting physical custody to the children's mother.

         At a pre-trial hearing held on December 11, 2012, McCallum requested that he be permitted to proceed without an attorney. After an extensive colloquy, the state trial court allowed McCallum to waive his right to counsel. The court also appointed McCallum standby counsel. (See ECF #11-4 at Pg. ID 128-56.)

         At the next pre-trial proceeding, the state trial court reminded McCallum of his right to counsel, but McCallum again expressed his desire to continue to represent himself. (See ECF #11-5 at Pg. ID 175.) Finally, at the beginning of the first day of trial, the trial court for a third time informed McCallum of his right to counsel, and it warned him of the dangers of self-representation. (See ECF #11-6 at Pg. ID 249-62.) McCallum again indicated his choice to represent himself. (See id.)

         At trial, McCallum's ex-wife, Sharon Kludy, testified that she filed for divorce from McCallum in the Fall of 2011. Despite a custody order entered in her divorce case requiring McCallum to return their children to her on February 9, 2012, McCallum failed to do so. Kludy said that she contacted the police, and a few days later, she was informed that the children were located by the authorities in Florida. (See ECF #11-6 at Pg. ID 480-515.)

         Kludy acknowledged during her testimony that she was the subject of several child protective services investigations regarding alleged abuse of the children. (See Id. at Pg. ID 516-51.) But she repeatedly denied that she had neglected or abused her children. (See, e.g., ECF #11-9 at Pg. ID 1043, 1060.)

         Child Protective Services worker Anna Appledorn testified that she investigated certain bruises on the left leg and buttocks of McCallum's son, and she concluded that there was insufficient evidence to substantiate the allegation that Kludy caused those bruises. (See ECF #11-7 at Pg. ID 657-77.) Appledorn further testified that she had “no concerns” about Kludy's fitness as a parent, whom she described as “mild mannered.” (Id. at Pg. ID 675.) Photographs of the bruises were sent to a hospital for evaluation, and the hospital determined that the marks on the leg were likely not caused by physical abuse but by a fixed surface. (See Id. at Pg. ID 138-39.) Appledorn and a police officer then went to Kludy's home and identified a sliding glass door as the likely source of the injuries. (See Id. at Pg. ID 663-67.)

         In his defense, McCallum offered evidence that he recorded a conversation between himself and Kludy where he asked Kludy to promise that she would not harm the children, and Kludy replied “okay.” (See ECF #11-9 at Pg. ID 1055.) Kludy explained her response as follows:

You were in tears when you called me. And you said, “I want you to just have custody of the kids because I don't even want visitation anymore. But please just promise me that you won't harm Douglas again.” And I said “okay” to spare your feelings, to make peace, to try to get done with that ...

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