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George v. Hoffner

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

April 11, 2018

NOLAN RAY GEORGE, Petitioner,
v.
BONITA HOFFNER, Respondent.

          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.

         Nolan 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 WITH PREJUDICE.

         I. Background

         Petitioner was convicted by a jury in 2011 in the Oakland County Circuit Court for the killing of Gwendolyn Perry in Pontiac, Michigan in 1968.

         On 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).

         Police 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).

         An 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., p. 115).

         On 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. 223, 230).

         An 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).[1]

         Petitioner 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. 147).

         Petitioner's 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).

         73-year-old 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).[2] 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).

         Mr. 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).

         Alfred 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. 163-66).

         Petitioner 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).

         Ms. 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).

         On 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).

         Petitioner 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).

         At that 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. 194-210).

         Petitioner's 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).

         Petitioner 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 (2015).

         Petitioner 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.[3]Petitioner has filed a reply.

         Petitioner 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 Amendment rights.
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 evidence.
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.

         II. Standard of Review

         28 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:

         An 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; or
(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.

         A 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 ...


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