United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1), DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.
Jeffrey Julian is a state prisoner in the custody of the
Michigan Department of Corrections. On July 6, 2017, Julian
filed a petition for a writ of habeas corpus in this Court
pursuant to 28 U.S.C. § 2254. (See ECF #1.) In
the petition, Julian challenges his conviction for
first-degree premeditated murder, Mich. Comp. Laws §
750.316; and moving or carrying away a dead body, Mich. Comp.
Laws § 750.160.
raises four claims in his petition: (1) the state trial court
denied him due process of law when it permitted the admission
of a recorded conversation between himself and witness Dustin
Pirl because Pirl was acting as an agent for the police
during that conversation, (2) the state trial court denied
him due process of law when it refused to allow him to obtain
a second independent psychological evaluation, (3) his trial
counsel was ineffective when counsel failed to discover and
investigate Julian's history of head trauma and marijuana
abuse and failed to obtain all of Julian's medical
records before scheduling a psychological evaluation, and (4)
he was deprived of the presumption of innocence and the
effective assistance of trial counsel when his trial counsel,
prior to the prosecutor presenting his proofs, conceded
Julian's guilt and agreed that there was no dispute as to
the facts of the case. (See id.)
Court has reviewed Julian's claims and concludes that he
is not entitled to federal habeas relief. Accordingly, the
Court will DENY his petition. The Court also
declines to issue Julian a certificate of appealability. But
it will grant him permission to appeal in forma
appeared before the Bay County Circuit Court for a bench
trial on June 12, 2012. (See Trial Tr., ECF #5-14.)
The trial court convicted Julian as charged. (See
Id. at Pg. ID 515.) The Michigan Court of Appeals
described the relevant facts as follows:
On August 27, 2010, defendant contacted the Bay City Police
Department to report that his girlfriend was missing. He
subsequently told Dustin Pirl that he had killed her. At the
request of the police, Pirl agreed to wear a recording device
and record a conversation with defendant. During the
conversation, defendant again confessed.
People v. Julian, 2013 WL 6244705, at *1 (Mich. Ct.
App. Dec. 3, 2013).
appealed his conviction the Michigan Court of Appeals, and
that court affirmed. See Id. Julian then filed an
application for leave to appeal in the Michigan Supreme
Court, and that court denied leave. See People v.
Julian, 846 N.W.2d 399 (Mich. 2014).
thereafter filed a post-conviction motion for relief from
judgment in the state trial court pursuant to Michigan Court
Rule 6.500, et. seq. (See ECF #5-20.) The
trial court denied that motion. See People v.
Julian, 10-10985-FC (Bay Cty. Cir. Ct., Oct. 2, 2015);
reconsideration den. Oct. 27, 2015. (See
ECF ## 21, 23.) Julian sought leave to appeal the trial
court's ruling in the Michigan Court of Appeals and the
Michigan Supreme Court, and those courts denied leave.
See People v. Julian, No. 332575 (Mich. Ct. App.
Sept. 27, 2016); lv. den. 895 N.W.2d 195 (2017).
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.
28 U.S.C. § 2254(d)(1)-(2).
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. See Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” of clearly established federal law 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. To obtain habeas relief, a
state prisoner must show that the state court's rejection
of 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.” Harrington, Richter, 562 U.S.
86, 103 (2011).
first claims that the state trial court violated his Fifth
Amendment rights under Miranda v. Arizona, 384 U.S.
436 (1966), when it refused to suppress a tape recorded
confession that Julian made to a prosecution witness (Pirl)
who Julian says was an agent for the police. The Michigan
Court of Appeals reviewed this claim on direct appeal and
Defendant first argues that the trial court erred by denying
his motion to suppress the statements to Pirl and the
recording. Specifically, defendant maintains that, instead of
using Pirl to record the conversation with defendant, the
police should have invited defendant to come to the police
station for questioning. According to defendant, not doing so
“was tantamount to a custodial interrogation” and
necessitated Miranda warnings. We disagree.
Defendant's position is entirely without merit. First,
defendant offers no authority for his position that criminal
suspects have a constitutional right to be asked to come to
the police station for questioning, and we have located no
such authority. This is not surprising since there is no such
right. Second, defendant's Miranda rights were
not violated, let alone implicated, because his recorded
conversation with Pirl was not the equivalent of a custodial
It is well settled that Miranda warnings need only
be given when a person is subject to custodial interrogation.
Whether a defendant is in custody for purposes of
Miranda at the time of an interrogation is
determined by looking at the totality of the circumstances,
with the key question being whether the accused reasonably
could have believed that he or she was free to leave.
Here, it is undisputed that the recorded conversation
occurred when defendant voluntarily went to Pirl's home
and freely confessed to the killing. There simply is no
evidence that defendant was ever taken into custody or
otherwise deprived of his freedom at any time during this
visit. The fact that Pirl may have been acting as an agent of
the police has no bearing on whether defendant was deprived
of any freedom. Therefore, the trial court did not err by
denying defendant's motion to suppress the recording.
People v. Julian, 2013 WL 6244705, at *1 (internal
punctuation and citations omitted). The Michigan Court of
Appeals' ruling was not unreasonable.
Illinois v. Perkins, 496 U.S. 292, 300 (1990), the
United States Supreme Court held that an undercover law
enforcement officer posing as a fellow inmate was not
required to give Miranda warnings to an incarcerated
suspect before asking questions that may elicit an
incriminating response. The Supreme Court reasoned that
“[c]onversations between suspects and undercover agents
do not implicate the concerns underlying Miranda.
The essential ingredients of a police-dominated atmosphere
and compulsion are not present when an incarcerated person
speaks freely to someone whom he believes to be a fellow
inmate.” Id., at 296 (internal quotation marks
omitted). Moreover, “[p]loys to mislead a suspect or
lull him into a false sense of security that do not rise to
the level of compulsion or coercion to speak are not within
Miranda's concerns.” Id. at 297.
case, Julian was neither in custody or a
“police-dominated atmosphere” when he made the
tape recorded confession to Pirl nor was there any evidence
that his statement was coerced. Id. at 296. The fact
that Pirl was wearing a wire and acting as an undercover
agent for the police, or that Julian may have been
“lull[ed] into a false sense of security, ” does
not implicate Miranda. Id. at 297. The
Michigan Court of Appeals therefore did not unreasonably
reject Julian's claim. Nor was that court's decision
contrary to clearly established federal law. Accordingly,
Julian is not entitled to federal habeas relief on this
next argues that the state trial court violated his right to
due process and to present a defense when the court did not
allow him to obtain a second independent psychiatric
evaluation before trial. At the time Julian made that
request, he had already obtained an independent evaluation
that concluded he was not insane or mentally ill at the time
of the alleged crime. That independent clinician, Dr. Jeffrey
Wendt, met with Julian twice at the Bay County Jail for a
total of 7 ½ hours. Dr. Wendt interviewed Julian and
Julian's trial counsel and administered several
psychological tests. In addition, Dr. Wendt reviewed a report
from the Center for Forensic Psychiatry which concluded that
Julian was criminally responsible. Dr. Wendt also reviewed
the police reports, reports from the Federal Bureau of
Investigation, the autopsy report, the transcript of an
interview with co-defendant Craig Julian, search warrants,
crime scene photographs, records relating to Julian's
service in the United States Marine Corps, a transcript of an
interview conducted by defense counsel with Amy Julian, the
recordings of Julian's telephone calls while at the Bay
County Jail, an interview of Julian by the police, the
recording of the police interview with Pirl, Pirl's
covert recording of Julian, and two Wal-Mart Security
videotapes. After conducting this testing and reviewing all
of this information, Dr. Wendt concluded that Julian did not
meet the criteria to be considered insane or mentally ill at
the time of the crime. (See ECF #5-18 at Pg. ID
trial, Julian requested a second independent psychiatric
evaluation. He argued that he needed a second expert to
evaluate his claim that he was suffering from post-traumatic
stress disorder and that the disorder rose to the level of a
mental illness that he could present as a defense. The state
trial judge denied ...