United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE.
Ray George, (“petitioner”), confined at the
Lakeland Correctional Facility in Coldwater, Michigan, filed
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction
for first-degree murder, M.C.L.A. 750.316. For the reasons
that follow, the petition for writ of habeas corpus is DENIED
was convicted by a jury in 2011 in the Oakland County Circuit
Court for the killing of Gwendolyn Perry in Pontiac, Michigan
December 8, 1968, police found the victim's body just off
a two-rut lane in a heavily-weeded area in Pontiac, Michigan.
(Tr. 4/25/11, pp. 196-98). The police noticed fresh car
tracks in the snow which led through a fairly isolated area
near where the victim was discovered. (Id., p. 206).
Two nylon stockings were wrapped tightly around the
victim's neck. (Tr. 4/26/11, pp. 104, 186-187).
recovered a Pabst Blue Ribbon Beer bottle in the area near
where the victim's body was found. (Tr. 4/25/11, pp. 205,
209, Tr. 4/26/11, p. 209).
autopsy was conducted on the victim. Sperm was recovered from
the victim's vagina. The medical examiner discovered
areas of hemorrhage and pin-point bleeding on the left side
of the lower part of the neck. The pin-point bleeding was
consistent with intermittent pressure being placed on the
victim's neck, which would have been consistent with a
struggle. (Tr. 4/26/11, pp. 105-07). The autopsy revealed
that the victim suffered blunt force trauma to the side of
her head which could have caused loss of consciousness.
(Id., pp. 111-14, 186). The cause of death was
asphyxiation from the stockings that had been tied around the
victim's neck after she had been beaten. (Id.,
March 16, 1969, just three months after Gwendolyn Perry's
murder, police found the body of Frances Brown lying across
the front seat of a Cadillac parked in a dark area in a
parking lot across the street from a bar in Lake Orion,
Michigan. (Tr. 4/25/11, pp. 215, 217). Ms. Brown was
discovered about 7 ½ to 8 miles from where Gwendolyn
Perry's body had been found. (Tr. 4/26/11, p. 225). The
police discovered a Plymouth with the motor running parked
next to the Cadillac. (Tr. 4/25/11, p. 236). Ms. Brown was
discovered in almost the identical position and state of
undress that Ms. Perry had been found. (Tr. 4/25/11, pp. 219,
221, 239, Tr. 4/26/11, p. 120). Police recovered a Pabst Blue
Ribbon beer can in the back seat and a Pabst Blue Ribbon cap
from a beer bottle wedged inside a crevasse in the vehicle.
There were also beer cans outside the car. (Id., pp.
autopsy conducted on Ms. Brown revealed the presence of
sperm. Ms. Brown had also suffered blunt force trauma to the
head and had been strangled. As with Ms. Perry, the cause of
death was asphyxiation from the underwear which had been
wrapped tightly around Ms. Brown's neck after she had
been beaten. (Tr. 4/26/11, pp. 121-26, 129-30).
was arrested for the murder of Ms. Brown and initially
pleaded guilty to second-degree murder for the death of
Frances Brown. (Tr. 4/25/11, pp. 227-28, Tr. 4/26/11, p.
second-degree murder conviction in the Brown case was vacated
in March, 1973, because the trial court failed to properly
advise petitioner of the rights that he was giving up by
pleading guilty. Petitioner was then tried and convicted by a
jury for second-degree murder and was sentenced of 40 to 60
years in prison. The Michigan Court of Appeals reversed this
conviction because the prosecutor introduced the transcript
from petitioner's initial guilty plea. On remand,
petitioner again pleaded guilty to second-degree murder and
received a sentence of 17-25 years in prison. See People
v. George, 69 Mich.App. 403, 404, 245 N.W.2d 65, 66
(1976)(See also Tr. 4/25/11, pp. 23-26).
Eugene Wais testified that he met petitioner in prison when
they were incarcerated together in the 1960's or
1970's. (Tr. 4/25/11, pp. 253-54). One night,
petitioner told Wais and another inmate that he had killed up
to seven women near a gravel pit in Pontiac, Michigan.
Petitioner told his fellow inmates that he would drive down
Woodward Avenue, pick them up in his car, and start choking
them. Petitioner told the men that he put some of the victims
in a gravel pit. Petitioner would become excited when he
spoke about killing the women. Petitioner indicated that he
liked to see the victims jump while he was choking them.
(Id., pp. 256-59, 265, 276).
Wais testified that the police asked him in the 1970's to
testify against petitioner, but he refused to do so at the
time because the agreement was not put in writing and it was
dangerous for Mr. Wais to testify while he was still
incarcerated. (Tr. 4/25/11, pp. 260-62). Within the last year
Detective Hunt from the Pontiac Police Department spoke with
him about petitioner and Mr. Wais disclosed what petitioner
told him while in prison. Mr. Wais was promised nothing for
his testimony and indicated he felt bad about the women that
petitioner had killed. (Id., pp. 263-64, 287).
Kish testified that he met petitioner in Jackson prison in
the early 1970's and spent about a year in the same cell
block. (Tr. 4/26/11, pp. 150-53, 157). Petitioner informed
Mr. Kish that he was in prison for killing a woman in Lake
Orion. Petitioner also told Mr. Kish about another woman whom
he had murdered in Pontiac. Petitioner told Mr. Kish that he
had been inside of a beer store and a woman either walked
into or had been in the store. Petitioner indicated that he
had seen her before. Petitioner waited for her outside in his
car and called her over. The woman got into petitioner's
car. Petitioner told Mr. Kish that they were going to have
sex and she took off her clothes. Instead of having sex,
petitioner smashed the woman in the face with a beer bottle,
beat her and killed her. Petitioner said he killed the woman
by strangling her. Petitioner demonstrated what he had done
by making a motion consistent with pulling a knot.
(Id., pp. 159-160). Mr. Kish said that many years
went by before his brother encouraged him to report
petitioner's admissions to the police. Mr. Kish
eventually spoke to Detective Hunt from the Pontiac Police
Department. Mr. Kish testified that he was offered nothing to
come forward and was given no promises. (Id., pp.
was released from prison on December 23, 1981. (Tr. 4/26/11,
p. 148). In 1982, petitioner moved to Ohio, where he met
Cindy Garland. On October 18, 1982, petitioner was observed
choking Ms. Garland inside of Florence Mason's house.
During the argument, petitioner threatened to kill Garland.
Ms. Mason yelled at petitioner to get off of Ms. Garland.
(Id., pp. 14-19, 49, 51).
Garland's body was found four days later in a wooded area
east of Hamilton, Ohio off of a two-track lane. (Tr.,
4/26/11, pp. 17-18, 41-45). Ms. Garland was found face-down
and nude with some panties and shoes found in the area of the
body. (Id., p. 49). Petitioner's fingerprints,
as well as Cindy Garland's, were found on Miller beer
cans in the area of the field where it appeared that a
vehicle had been parked and from where Cindy Garland's
body was dragged to where it was discovered. (Id.,
pp. 47-48, 60). Ms. Garland died from blunt force trauma to
the head as well as hypothermia. Intact sperm was found in
Ms. Garland. (Id., pp. 56, 76-81). Petitioner was
charged with Ms. Garland's death and found guilty of
manslaughter. (Id., pp. 59, 148).
October 7, 1969 around 9:30 a.m. Detective Orville Johnston
and Detective Chancy of the Pontiac Police Department went to
interview petitioner at the sheriff's department, because
he had just pled guilty to second-degree murder in Ms.
Brown's death the day before. (Tr. 4/26/11, pp. 187-88).
Petitioner and his wife were both there. Petitioner was
advised of his Miranda rights and initially
requested an attorney, Bob Sterling. Mr. Sterling came to the
jail and spoke with petitioner. After speaking with
petitioner, Mr. Sterling agreed that the police could speak
with petitioner. Petitioner at first denied any involvement
in Ms. Perry's murder and told the police he did not even
know her. Petitioner, however, agreed to undergo further
questioning at the Pontiac Police Department at 2:00 p.m.
(Id., pp. 189-91).
was brought to the Pontiac Police Department that afternoon.
Petitioner again asked for an attorney. Detective Johnston
again called Attorney Sterling. Mr. Sterling informed the
police he couldn't continue to represent petitioner since
he was his attorney for the Brown case only. Detective
Johnston informed petitioner that another attorney would have
to be appointed for him. Detective Johnston called the
prosecutor's office to try to have an attorney appointed
for petitioner. Petitioner interrupted Detective
Johnston's call and asked to see photographs of Ms.
Perry. Detective Johnston showed him photographs of Gwendolyn
Perry and petitioner said, “I knew her.”
Petitioner admitted that “I was in her presence a
couple of occasions when she was with some guy that works at
General Motors.” Petitioner said that he didn't
know her by name. (Id., pp. 191-93).
point, Detective Chancy and Detective Johnston told
petitioner that because he had pled guilty to Frances
Brown's murder, he would not be charged in the Perry case
if he were responsible for her death. (Id., p. 193).
Petitioner immediately, without any further questions or
conversation, said, “I did it.” (Id., p.
194). Petitioner then proceeded to provide the detectives
with the details of Ms. Perry's murder, which were
consistent with the evidence recovered from the crime scene,
including an admission that he strangled the victim and hit
her in the head with a beer bottle. (Id., pp.
conviction was affirmed on appeal. People v. George,
No. 304299, 2012 WL 2913712 (Mich. Ct. App. Jul. 17, 2012);
lv. den. 493 Mich. 938, 829 N.W.2d 597 (2013).
filed with the trial court a post-conviction motion for
relief from judgment pursuant to M.C.R. 6.500, et
seq., which was denied. People v. George, No.
10-234495-FC (Oakland Cty.Cir.Ct., July 29, 2014). The
Michigan appellate courts denied petitioner leave to appeal.
People v. George, No. 323904 (Mich.Ct.App. Dec. 11,
2014); lv. den. 498 Mich. 871; 868 N.W.2d 902
filed his habeas petition on November 10, 2015. The Court
initially granted respondent's motion for summary
judgment on the ground that petitioner failed to comply with
the statute of limitations contained in 28 U.S.C. §
2244(d)(1). George v. Winn, No. 2:15-CV-14057, 2016
WL 1182728 (E.D. Mich. Mar. 28, 2016). On February 27, 2017,
this Court granted petitioner's motion to alter or to
amend the judgment, finding that petitioner was entitled to
equitable tolling of the limitations period because of his
age, his lack of education, his illiteracy, his prison
transfer, his resultant reliance on the assistance of prison
paralegals, and erroneous advice given to him by one of the
paralegals concerning the correct application of the statute
of limitations. The Court ordered respondent to file an
answer addressing the merits of petitioner's
claims.Petitioner has filed a reply.
seeks habeas relief on the following grounds:
I. Petitioner is entitled to a writ of habeas corpus because
the custodial statement that was used against him at trial
was made to the police detectives involuntarily and given in
response to a police officer's promise of immunity in
violation of a petitioner's Fifth and Fourteenth
II. Petitioner is entitled to a writ of habeas corpus because
there was insufficient evidence to convict him of
first-degree premeditated murder in violation of the
petitioner's Sixth and Fourteenth Amendment rights.
III. The unreasonable delay in the arrest of the petitioner
violated his Fifth, Sixth, and Fourteenth Amendment rights to
due process, to a fair trial, to present a defense, and to
confront witnesses and evidence against him causing
substantial prejudice at trial; and trial counsel was
constitutionally ineffective for failing to move to dismiss
based on the unreasonable delay in arrest.
IV. The trial court denied petitioner's Fifth and
Fourteenth Amendment rights to due process and a fair trial
by allowing the prosecution to introduce similar acts
V. Petitioner was denied his Fourteenth Amendment right to
effective assistance of appellate counsel where appellate
counsel was ineffective for failing to raise grounds three
and four above in the petitioner's appeal of right.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court's determination that a
claim lacks merit precludes federal habeas ...