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Brown v. Kowalski

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

June 12, 2018

JACK KOWALSKI[1], Respondent.




         This matter has come before the Court on Petitioner Marlo Darius Brown's pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his state convictions for second-degree home invasion, Mich. Comp. Laws § 750.110a(3), attempted first-degree home invasion, Mich. Comp. Laws § 750.92 and § 750.110a(2), receiving or concealing stolen property valued at $200 or more but less than $1, 000, Mich. Comp. Laws § 750.535(3)(b), and third-degree fleeing and eluding a police officer, Mich. Comp. Laws § 257.602a(3). Petitioner alleges as grounds for relief that (1) his right of confrontation was violated when certain police officers failed to testify at his trial, (2) trial counsel was ineffective for failing to investigate all relevant witnesses, (3) trial counsel was ineffective for failing to investigate and interview officers Heather Kolke and Jesse Dunlap, (4) the search of his vehicle and person violated his constitutional right not to be subjected to unreasonable searches and seizures, and (5) the Michigan Court of Appeals misapplied the abandonment doctrine when analyzing his Fourth Amendment claim.

         Respondent Joe Barrett argues in an answer to the petition that Petitioner procedurally defaulted his first claim and a portion of his claims about trial counsel. Respondent also asserts that the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. The Court agrees that habeas relief is not warranted on any of Petitioner's claims. Accordingly, the Court is denying Petitioner habeas corpus relief.


         The Michigan Court of Appeals accurately summarized the facts leading to Petitioner's convictions as follows:

Defendant's convictions arose from two separate incidents, both of which occurred on January 18, 2011, in Canton, Michigan. In the first incident, someone broke into the home of Dennis Matthews and stole several items, including a new television still in its box. In the second incident, a person broke the glass on the front door of the home of Edward and Veronica Fair, but then ran off. The Fairs, who were home at the time, called the police, who responded within three to four minutes.
After responding to the reported break-in at the Fairs' home, the police observed defendant walking in the area. When an officer approached defendant to determine if he had witnessed anything associated with that incident, defendant fled on foot. Defendant eventually entered a vehicle and drove off. A police pursuit ended when defendant lost control of his vehicle and crashed into a tree. Defendant fled from his vehicle on foot and was eventually apprehended and arrested. After defendant was in custody, the police removed his shoes to compare the shoe treads to prints that had been left in the snow at the scenes of both incidents. The police also discovered, in the backseat of defendant's vehicle, a new television, which was still in its box and which matched the type taken from Matthews's home.

People v. Brown, No. 304407, 2014 WL 2619395, at *1 (Mich. Ct. App. June 12, 2014) (unpublished).

         On April 28, 2011, the jury found Petitioner guilty, as charged, of second-degree home invasion, attempted home invasion in the first degree, receiving and concealing stolen property valued at $200 or more, but less than $1, 000, and third-degree fleeing and eluding the police. On May 13, 2011, the trial court sentenced Petitioner to concurrent terms of nine to sixteen years in prison for the second-degree home invasion, one to five years in prison for the attempted first-degree home invasion and for fleeing-and-eluding the police, and two years on probation for receiving or concealing stolen property.

         Petitioner moved for a new trial, arguing that: (1) the search of his vehicle and person constituted an unreasonable search and seizure, and trial counsel was ineffective for failing to seek suppression of the proceeds of the search; and (2) trial counsel was ineffective for failing to challenge testimony that officers were able to match the serial number of the television seized from Petitioner's car to a receipt provided by the alleged victim. The trial court held oral arguments on the motion, but declined to grant an evidentiary hearing. The court denied Petitioner's motion on grounds that the police did not act inappropriately and that a motion to suppress the fruits of the search and seizure would have been frivolous. See 3/30/12 Mot. Hr'g; see also People v. Brown, No. 11-1104, Order Denying Mot. (Wayne Cty. Cir. Ct. Mar. 30, 2012).

         Petitioner raised the same two issues in an appeal as of right. He also moved to remand his case to the trial court for an evidentiary hearing on his claim about trial counsel. The Michigan Court of Appeals granted Petitioner's motion to remand and ordered the trial court to conduct an evidentiary hearing on Petitioner's claim about trial counsel. On remand, the trial court held an evidentiary hearing at which Petitioner's trial attorney testified. See 11/30/12 Ginther Hr'g Tr. at 4-38.[2]The trial court later ruled that trial counsel's representation did not fall below an objective standard of reasonableness and that the result of the trial would not have been different were it not for counsel's allegedly poor performance. See People v. Brown, No. 11-001104-01, Order Denying Mot. for New Trial (Wayne Cty. Cir. Ct. Dec. 28, 2012).

         Following the remand, the Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished per curiam opinion. See Brown, 2014 WL 2619395.[3] Petitioner appealed to the Michigan Supreme Court, but the State Supreme Court denied leave to appeal on October 28, 2014, because it was not persuaded to review the issues. See People v. Brown, 497 Mich. 890, 854 N.W.2d 887 (2014).

         On January 5, 2015, Petitioner filed a motion for relief from judgment in which he raised several claims about his right of confrontation, trial and appellate counsel, the trial court's admission of certain evidence at trial, the prosecutor's conduct, the jury, and the prosecution's findings of fact. The trial court denied the motion on grounds that trial counsel was not ineffective, that Petitioner failed to make meritorious arguments, and that Petitioner failed to demonstrate actual prejudice warranting reversal of his convictions. See People v. Brown, No. 11-001104-01-FH, Opinion (Wayne Cty. Cir. Ct. April 3, 2015).

         Petitioner apparently failed to appeal the trial court's decision. He did file an application for a delayed appeal from his judgment of sentence, but the Michigan Court of Appeals dismissed the application as untimely. See People v. Brown, No. 326965 (Mich. Ct. App. Apr. 21, 2015). Petitioner did not appeal the Court of Appeals' decision to the Michigan Supreme Court. (See ECF No. 8-12.)

         On June 26, 2015, Petitioner filed this habeas corpus petition. Respondent maintains that Petitioner procedurally defaulted some of his claims. To prevail on procedurally defaulted claims, a petitioner must establish “cause and prejudice for the defaults” and “also show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). The Court finds it more efficient to go directly to the merits of Petitioner's claims than to analyze whether the claims are procedurally defaulted and whether Petitioner has shown “cause” for the defaults and actual prejudice from the claimed errors. Accordingly, the Court excuses the alleged procedural defaults and “cut[s] to the merits here, ” as “the cause-and-prejudice analysis adds nothing but complexity to the case.” Id.


         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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.

28 U.S.C. § 2254(d).

         “[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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Furthermore, a state court's determination of a factual issue is presumed to be correct unless the petitioner rebuts the presumption of correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert. denied, 136 S.Ct. 1384 (2016). In addition, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         IV. ANALYSIS

         A. Claim One: Violation of the Confrontation Clause

         Petitioner alleges that his right to confront the witnesses against him was violated when two of the police officers who initially responded to the home invasions (Heather Kolke and Jesse Dunlap) failed to testify at his trial. Petitioner asserts that there was no basis for admitting the seized evidence absent the officers' testimony.

         Petitioner first raised this claim in his motion for relief from judgment. The state trial court rejected the claim because Petitioner had not shown that he would have had a reasonably likely chance of acquittal had all the officers involved in the investigation and apprehension of him testified at trial.

         The Sixth Amendment to the United States Constitution guarantees defendants in criminal cases “the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause, however, applies only to testimonial statements. United States v. Damra, 621 F.3d 474, 492 n.4 (6th Cir. 2010); United States v. Reynolds, 684 Fed.Appx. 510, 514 (6th Cir. 2017).

It applies to “witnesses” against the accused-in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony, ” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid.

Crawford v. Washington, 541 U.S. 36, 51 (2004).

         At issue here is the failure of Officers Heather Kolke and Jesse Dunlap to testify at Petitioner's trial. Officer Kolke responded to a police dispatch about glass breaking at Mr. and Mrs. Fair's residence, and Officer Dunlap responded to the home invasion at Mr. Matthews' residence. However, no out-of-court statements by Kolke or Dunlap were introduced at Petitioner's trial. Therefore, Petitioner's reliance on the Confrontation Clause is misplaced, and habeas relief is not warranted on his claim.

         To the extent Petitioner is arguing that his Sixth Amendment right to compulsory process was violated, that claim also lacks merit. “[T]he Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him ‘compulsory process for obtaining witnesses in his favor.' U.S. ...

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