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.
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; 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.
was convicted following a bench trial in the Wayne County
Circuit Court. 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).
conviction was affirmed. Id., lv. den. 500 Mich.
857, 883 N.W.2d 769 (2016).
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
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
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:
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;
(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 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,
Claim # 1. The sufficiency of evidence claim.
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
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
People v. Gilkey, No. 326172, 2016 WL 1579041, at *
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).
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.
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)).
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)
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.
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.
Michigan law, “the crime of criminal sexual conduct
requires a live victim at the time of penetration.”
People v. Hutner, 209 ...