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Gilkey v. Burton

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

June 1, 2018

DARIUS GILKEY, Petitioner,
v.
DEWAYNE BURTON, 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.

         Darius Gilkey, (“petitioner”), confined at the Handlon Correctional Facility in Ionia, 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;[1] and first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(e). For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted following a bench trial in the Wayne County Circuit Court.[2] This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Evidence in this case indicates that, during the early morning hours of June 18, 2012, the victim, an 18-year-old African-American woman, QR, left her friend's house, located in the area of Woodward Avenue and Six Mile, alone and upset, and started walking toward Woodward. She was wearing a short pink dress and carrying a purse. Around 6:30 a.m., during a police officer's routine patrol in the area, an individual known to the officer approached and said that earlier that night he saw a tall man following a brown or dark skinned woman walking along Woodward who looked upset. The individual described the woman as “kinda short” and wearing pink and white. The individual, who was emotional and upset, told the officer that the situation did not “seem right, ” so he stayed. He then observed the man “force” the woman into an abandoned apartment building with a vacant lot next to it located on Woodward at Nevada. At the individual's insistence, the officer investigated inside the abandoned building and did not find anything, but did not check the grassy area outside of the building. The next day the victim's body was discovered in the vacant lot adjacent to the abandoned building, which was very overgrown with vegetation. The victim, QR, was found partially clothed and wearing a pink and white “tube dress” that was pulled up above her waist and her panties were pulled up over to the side. She had “some sort of puncture or trauma” to the left side of her neck and there was a large pool of clotted blood underneath her head, indicating that she bled out and died in the vacant lot. The medical examiner determined that the victim died of a stab wound to her neck, which proceeded into her jugular vein and left carotid artery, and that the manner of death was homicide. Semen was found on samples taken from the victim's vagina and the panties retrieved from her body. DNA analysis by a forensic scientist revealed that defendant's DNA profile matched the semen to a very high degree of probability.

People v. Gilkey, No. 326172, 2016 WL 1579041, at * 1 (Mich. Ct. App. Apr. 19, 2016).

         Petitioner's conviction was affirmed. Id., lv. den. 500 Mich. 857, 883 N.W.2d 769 (2016).

         Petitioner seeks habeas relief on the following grounds:

I. There was insufficient evidence that petitioner committed homicide or sexual assault to sustain his convictions.
II. The trial court abused its discretion and violated petitioner's Sixth Amendment right to counsel by refusing to appoint substitute counsel.
III. Petitioner is entitled to habeas relief where the admission of other acts evidence was so unfairly prejudicial as to deprive petitioner due process of law contrary to the Fourteenth Amendment.
IV. Petitioner was denied his state and federal constitutional right to a jury trial where the record fails to show that he voluntarily and knowingly waived his jury trial right after being fully advised of that right by the court.

         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 relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         III. Discussion

         A. Claim # 1. The sufficiency of evidence claim.

         Petitioner claims that there was insufficient evidence to convict him of the charges. Petitioner argues that there was insufficient evidence that the victim was sexually assaulted or that he was the person who actually murdered the victim. Petitioner suggests that the evidence at most established that he had sex with the victim after she had already been killed by someone else.

         The Michigan Court of Appeals rejected petitioner's claim:

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could reasonably infer that the sexual intercourse was not consensual, but that defendant took the victim against her will into a concealed area, forced her to engage in sexual intercourse at knife point, stabbed her in the neck, and left her to bleed out and die. We disagree with defendant's assertions that DNA evidence linking him to the victim was merely evidence that he and the victim had sexual contact and that there was no evidence that such contact was nonconsensual or even occurred before her death. There is no dispute that strong DNA evidence linked defendant to the semen found inside the victim's vagina and on the panties retrieved from her body, which sufficiently established that defendant engaged in sexual intercourse with the victim. Contrary to defendant's argument, there is also strong circumstantial evidence from which a rational trier of fact could reasonably infer that the sexual intercourse was not consensual and defendant was armed with a knife when he committed the assault, including the testimony indicating that the victim was “forced” into the abandoned building, the manner in which the victim was found, and that the victim died from a fatal stab wound to her neck. See People v. Ramsey, 89 Mich.App 260, 266; 280 N.W.2d 840 (1979)(finding evidence of rape from evidence of sexual intercourse and the victim's location, position, removed clothing). We find this evidence sufficient to support defendant's conviction of CSC I, MCL 750.520b(1)(e).
We likewise conclude that sufficient evidence supports defendant's murder convictions. “The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation.” People v. Bennett, 290 Mich.App 465, 472; 802 N.W.2d 627 (2010). “The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in MCL 750.316, ” including first-degree criminal sexual conduct. People v. Turner, 213 Mich.App 558, 566; 540 N.W.2d 728 (1995), overruled in part on other grounds People v. Mass, 464 Mich. 615; 628 N.W.2d 540 (2001). “[I]dentity is an element of every offense, ” People v. Yost, 278 Mich.App 341, 356; 749 N.W.2d 753 (2008), and thus, the prosecution must prove beyond a reasonable doubt defendant's identity as the perpetrator of the charged offenses, People v. Kern, 6 Mich.App 406, 409; 149 N.W.2d 216 (1967).
Defendant claims that the evidence was insufficient to establish his identity as the perpetrator of QR's killing. Although there were no eyewitnesses to the murder and the knife used in the killing was apparently not recovered, the circumstantial evidence surrounding the homicide sufficiently established defendant's identity as the perpetrator of the murder. Kern, 6 Mich.App at 409-410 (“Identity may be shown by either direct testimony or circumstantial evidence....”). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could reasonably infer that the victim was targeted, forced into a concealed area, raped at knife point, stabbed in the neck, and left to die. From these inferences, coupled with the strong DNA evidence linking defendant to the semen found inside the victim's vagina and on the panties retrieved from her body, it could be reasonably inferred that defendant was the individual who perpetrated the sexual assault and murder of the victim beyond a reasonable doubt. Nowack, 462 Mich. at 399-400. Additionally, evidence related to a similar homicide of another young woman in the same area, properly admitted pursuant to MRE 404(b)(1) as discussed in the next section, shows defendant's common scheme or plan in abducting young women walking alone on or near Woodward, taking them to a concealed location, and sexually assaulting and killing them by stabbing them in the neck with a knife, and further connects defendant to the murder and sexual assault of QR. We conclude that sufficient evidence established that defendant perpetrated the sexual assault and murder of the victim in this case.

People v. Gilkey, No. 326172, 2016 WL 1579041, at * 2-3.

         It is beyond question that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, “whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). A court need not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original). The Jackson standard applies to bench trials, as well as to jury trials. See e.g. U.S. v. Bronzino, 598 F.3d 276, 278 (6th Cir. 2010).

         A federal habeas court may not overturn a state court decision that rejects a sufficiency of the evidence claim merely because the federal court disagrees with the state court's resolution of that claim. Instead, a federal court may grant habeas relief only if the state court decision was an objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id.

         Under Michigan law, “[T]he identity of a defendant as the perpetrator of the crimes charged is an element of the offense and must be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82 F. App'x. 147, 150 (6th Cir. 2003)(citing People v. Turrell, 25 Mich.App. 646, 181 N.W.2d 655, 656 (1970)).

         Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence at trial to exclude every reasonable hypothesis except that of guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted). Identity of a defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194 F.Supp.2d 629, 648 (E.D. Mich. 2002). Eyewitness identification is not necessary to sustain a conviction. See United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F.Supp.2d at 648. In the present case, the DNA evidence was sufficient in and of itself to establish petitioner's identity as the perpetrator. See e.g. U.S. v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999); Kelley v. Jackson, 353 F.Supp.2d 887, 892 (E.D. Mich. 2005). Indeed, a rational trier of fact “could consider the DNA evidence to be powerful evidence of guilt.” McDaniel v. Brown, 558 U.S. 120, 132 (2010)

         Petitioner acknowledges that his DNA was recovered from the victim but suggests that she had already been killed by someone else and that he had sex with the victim after she died.

         Under Michigan law, first-degree criminal sexual conduct is committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances in the first-degree criminal sexual conduct statute. See Farley v. Lafler, 193 F. App'x. 543, 548 (6th Cir. 2006). Petitioner was convicted of first-degree criminal sexual conduct under a theory that he was armed with a weapon during the sexual assault.

         Under Michigan law, “the crime of criminal sexual conduct requires a live victim at the time of penetration.” People v. Hutner, 209 ...


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