United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) DENYING THE PETITION FOR A
WRIT OF HABEAS CORPUS (DKT. 30), (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
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.
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.
FACTS AND PROCEDURAL HISTORY
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
People v. Brown, No. 288552, 2010 WL 1814150, *1
(Mich. Ct. App. May 6, 2010) (unpublished, consolidated
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).
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.
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 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 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.
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
STANDARD OF REVIEW
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;
(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).
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
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)).
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).
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.
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).