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Brown v. Warren

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

July 13, 2018

ROSALIND BROWN, #384686, Petitioner,



         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Rosalind Brown (“Petitioner”), currently confined at the Huron Valley Women's Complex in Ypsilanti, Michigan, was convicted of first-degree murder, Mich. Comp. Laws § 750.316, following a jury trial with separate juries with co-defendant Montel Pettiford in the Genesee County Circuit Court. She was sentenced to life imprisonment without the possibility of parole in 2008. In her pleadings, Petitioner raises claims concerning: (i) the conduct of the prosecutor in shifting the burden of proof during closing rebuttal argument, (ii) the exclusion of evidence and the right to present a defense, (iii) the admission of a co-defendant's hearsay statement and the right of confrontation, (iv) the effectiveness of trial counsel in failing to present an alibi defense and failing to request an evidentiary hearing to challenge expert testimony, (v) the admission of certain evidence, (vi) the withholding of alleged exculpatory evidence, (vii) a witness's shifting of the burden of proof, (viii) the admission of a co-defendant's statements; (ix) and the effectiveness of appellate counsel. Respondent has filed an answer to the petition contending that it should be denied.

         For the reasons that follow, the Court finds that Petitioner is not entitled to relief on her claims and her habeas petition must denied. The Court also concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.


         Petitioner's conviction arises from the drowning death of her 11-year-old stepson in 1985. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

Defendants' convictions arise from the drowning death of defendant Brown's 11- year-old stepson in April 1985. Defendant Pettiford is defendant Brown's brother. The victim disappeared on April 12, 1985. His body was discovered in the Flint River on April 30, 1985. The victim's death was initially ruled an accidental drowning. Although a criminal investigation was opened, no charges were brought.
The investigation was re-opened in 2004 after additional information was received. At trial, defendant Pettiford's ex-wife, Cathy Pettiford, testified pursuant to a grant of immunity. Cathy testified that before the victim's disappearance, she observed defendants Pettiford and Brown help the victim into her house. The victim was not able to walk on his own. Cathy saw defendant Pettiford give the victim a clear liquid from a brown bottle, and also saw him mix some of the same liquid into some eggs that defendant Pettiford instructed Cathy to feed to the victim. The victim complained that his stomach hurt. An hour or two later, Cathy observed defendants Pettiford and Brown leave the house while carrying the victim, who was unconscious. Defendants Pettiford and Brown later returned without the victim, and their shoes and pants were muddy and wet. According to Cathy, defendant Pettiford said that he had drowned the victim, and defendant Brown was crying.
Other witnesses testified that defendant Brown made statements to them admitting her involvement in the victim's death. Defendant Brown's husband, Jestine, testified that at some point after 2004, defendant Brown told him that she and defendant Pettiford took the victim to the river and defendant Pettiford threw him in the water while she stayed in the car. Another witness, Twila Miller Cochran, testified that defendant Brown told her in 1994 that she gave the victim some medication and could not wake him up.
A sample of the victim's blood obtained in 1985 revealed the presence of ethanol (grain alcohol), isopropanol (rubbing alcohol), and a trace amount of acetone. After the investigation was reopened, the victim's body was exhumed and a second autopsy was performed in 2005 by Dr. Ljubisa Dragovic. Tissue samples were not tested due to the level of decomposition and the use of embalming fluid. However, Dr. Dragovic testified that the presence of mud in the victim's lungs, but not his stomach, indicated that the victim was unconscious when he went into the water, which would have been consistent with the high ethanol level in his blood. Dr. Dragovic also testified that the alcohol levels in the victim's blood indicated that it was ingested before death, as opposed to produced by the body naturally after death due to decomposition. Dr. Joyce DeJong, a defense witness, agreed that drowning was the cause of death, but concluded that the manner was indeterminate. In her opinion, however, the alcohol levels were consistent with natural postmortem production, and she believed that no conclusions regarding consciousness could be drawn from the lack of fluid or mud in the victim's stomach. Dr. DeJong also believed that it would have been prudent to test the 2005 tissue samples for whatever additional information they could have yielded.

People v. Brown, No. 288552, 2010 WL 1814150, *1 (Mich. Ct. App. May 6, 2010) (unpublished, consolidated appeals).

         Following her conviction and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals asserting that: (i) the prosecutor improperly shifted the burden of proof during closing rebuttal arguments, (ii) she was denied the right to present a defense when she was precluded from introducing hearsay evidence from a police report, (iii) she was denied the right to confront witnesses when Cathy Pettiford testified that co-defendant Montel Pettiford told her that he drowned the victim, and (iv) she was denied her right to be tried solely on the evidence where Cathy Pettiford testified about her immunity agreement. The court denied relief on those claims and affirmed Petitioner's conviction and sentence. Id. at *4-7. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Brown, 788 N.W.2d 448 (Mich. 2010).

         Petitioner then filed her initial federal habeas petition raising claims that were presented on direct appeal. While that case was pending, she moved to stay the proceedings so that she could return to the state courts to exhaust additional issues. The Court granted that motion and stayed the proceedings.

         Petitioner subsequently filed a motion for relief from judgment with the state trial court asserting that: (i) she was denied her right to the effective assistance of trial and appellate counsel, (ii) the testimony of toxicologist Dr. Felix Adatsi should not have been admitted, (iii) she was denied a fair trial when the prosecutor and trial court withheld evidence of a possible suspect who was interviewed in Virginia, (iv) Dr. Dragovic's testimony improperly shifted the burden of proof to the defense, (v) trial counsel was ineffective for failing to demand a Daubert[1] hearing before Dr. Adatsi testified, (vi) the trial court should not have admitted Cathy Pettiford's testimony that Montel Pettiford said he drowned the victim, and (vii) Cathy Pettiford was an incompetent witness. The trial court denied relief on those claims finding that Petitioner failed to satisfy the requirements of Michigan Court Rule 6.508(D). The court found that Petitioner failed to establish cause and prejudice for failing to raise certain claims on direct appeal, that some claims were raised and decided against Petitioner on direct appeal, and that the claims lacked merit. People v. Brown, No. 07-21158-FC (Genesee Co. Cir. Ct. Feb. 18, 2014). The court also issued a supplemental order denying Petitioner's requests for a Ginther[2] hearing and a Daubert hearing. People v. Brown, No. 07-21158-FC (Genesee Co. Cir. Ct. April 9, 2014). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied pursuant to Michigan Court Rule 6.508(D)(2) and Michigan Court Rule 6.508(D)(3)(a) and (b). People v. Brown, No. 323302 (Mich. Ct. App. Dec. 18, 2014). Petitioner attempted to file an application for leave to appeal with the Michigan Supreme Court, but her application was rejected as untimely. See 7/28/15 Affidavit of Larry Royster, Michigan Supreme Court Clerk.

         Petitioner thereafter returned to federal court and moved to re-open this case to proceed on an amended petition containing the claims she raised on direct appeal and collateral review of her conviction in the state courts. The Court granted the motion and re-opened the case. Respondent subsequently filed an answer to the habeas petition, as amended, contending that it should be denied because the claims are procedurally defaulted and/or lack merit. Petitioner filed a reply to that answer.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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.

28 U.S.C. §2254(d) (1996).

         “A state court's decision is ‘contrary to' ... clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-521 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)).

         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)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his 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.; see also White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, __ U.S. __, 135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, __ U.S. __, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-126 (2008)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The requirements of clearly established law are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law as determined by the Supreme Court'” and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012); see also Lopez v. Smith, __ U.S. __, 135 S.Ct. 1, 2 (2014). The decisions of lower federal courts, however, may be useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp. 354, 359 (E.D. Mich. 2002).

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. ...

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