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Harris v. Burt

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

July 24, 2018

MICHAEL D. HARRIS, Petitioner,
v.
S.L. BURT, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition will be dismissed. The Court will exercise its discretion and decline to review the petition under the concurrent sentence doctrine. In the alternative, the Court will dismiss the petition for failure to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Michael D. Harris is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Michigan. Following one jury trial and one bench trial in the Ingham County Circuit Court, Petitioner was convicted of two counts of second-degree murder, Mich. Comp. Laws § 750.317. On October 19, 1983, the court sentenced Petitioner to life imprisonment for the November 2, 1981, murder of 78-year-old Ula Curdy. On November 30, 1983, the court sentenced Petitioner to life imprisonment for the November 30, 1981, murder of 78-year-old Denise Swanson.

         After Petitioner committed those murders, but before he was prosecuted, he harmed other elderly women. Around September 19, 1982, Petitioner raped, beat, and strangled to death 85-year-old Margorie Upson. A few days later, Petitioner, raped, beat, and strangled to death 84-year-old Louise Koebnick. A few weeks later, Petitioner robbed, raped, and strangled 68-year-old Lenore Neidhardt-but she survived. Harris v. Borgert, No. 91-2216, 1993 WL 16706 (6th Cir. 1993). She was able to identify Petitioner as her assailant. Id.

         Petitioner was tried first in the Jackson County Circuit Court for his crimes against Lenore Neidhardt. On April 1, 1983, a jury convicted Petitioner of assault with intent to do great bodily harm, Mich. Comp. Laws § 750.84, breaking and entering with the intent to commit larceny, Mich. Comp. Laws § 750.110, breaking and entering with the intent to commit criminal sexual conduct, id., and first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. Harris, 1993 WL 16706, at *2. The court sentenced Petitioner to 6 to 10 years for assault, 10 to 15 years for breaking and entering with intent, and 60 to 90 years for first-degree criminal sexual conduct. Id.

         Petitioner was serving his sentences for his crimes against Lenore Neidhardt when he was tried and convicted for murdering Ula Curdy and Denise Swanson.[1]

         Years passed. The art and science of DNA testing improved. DNA samples from the murders of Margorie Upson, Louise Koebnick, and 91-year-old Florence Bell matched Petitioner's DNA profile. People v. Harris, Case Nos. 248247, 253337, 2005 WL 326827 (Mich. Ct. App., Feb. 10, 2005). The Washtenaw County prosecutor charged Petitioner with the murders of Ms. Upson and Ms. Koebnick. Id. Twenty years after the fact, separate Washtenaw County Circuit Court juries convicted Petitioner for the first-degree murders of Margorie Upson and Louise Koebnick. Id. He was sentenced to life imprisonment without parole for each murder conviction. Id.

         Petitioner has mounted numerous collateral challenges to his convictions in the state courts[2] and in the Michigan federal courts, [3] to no avail. He has sought leave from the Sixth Circuit to file second and successive habeas petitions in the Michigan federal courts, but the Sixth Circuit has denied him relief each time.

         On March 14, 2012, Petitioner petitioned the Ingham County Circuit Court, under Mich. Comp. Laws § 770.16, to order DNA testing of evidence from his Ingham County trials.[4]Section 770.16 of the Michigan Compiled Laws permits a defendant who is convicted of a felony at trial before January 8, 2001, to petition the circuit court to order DNA testing of biological material identified during the investigation leading to his conviction and, then, for a new trial based on the results of the testing. The section further provides:

(7) If the results of the DNA testing are inconclusive or show that the defendant is the source of the identified biological material, both of the following apply:
(a) The court shall deny the motion for new trial.
(b) The defendant's DNA profile shall be provided to the department of state police for inclusion under the DNA identification profiling system act, 1990 PA 250, MCL 28.171 to 28.176. . .
(8) If the results of the DNA testing show that the defendant is not the source of the identified biological material, the court shall appoint counsel pursuant to MCR 6.505(A) and hold a hearing to determine by clear and convincing evidence all of the following:
(a) That only the perpetrator of the crime or crimes for which the defendant was convicted could be the source of the identified biological material.
(b) That the identified biological material was collected, handled, and preserved by procedures that allow the court to find that the identified biological material is not contaminated or is not so degraded that the DNA profile of the tested sample of the identified biological material cannot be determined to be identical to the DNA profile of the sample initially collected during the investigation described in subsection (1).
(c) That the defendant's purported exclusion as the source of the identified biological material, balanced against the other evidence in the case, is sufficient to justify the grant of a new trial.

Mich. Comp. Laws § 770.16.

         Petitioner's motion did not result in a court order; however, it apparently motivated the prosecutor to test certain items presented as evidence to verify that the items matched Petitioner's DNA. In re: Michael Harris, Case No. 17-2063 (6th Cir.) (Document 1-2, Page: 31). DNA test results from the clothing of Ula Curdy indicated that the semen on the clothing was from a specifically identified individual, but not Petitioner. (June 25, 2016 Michigan State Police Lab Report, ECF No. 2-1, PageID.30-31.) Based on this new evidence, the prosecutor wrote the trial court judge and requested the court to appoint counsel for Petitioner with regard to his petition. (July 27, 2016 Corr., ECF No. 2-1, PageID.28-29.) The court did so.

         During a December 2016 motion hearing, Petitioner's counsel identified two issues to be explored at an evidentiary hearing scheduled for January of 2017: an issue regarding palm-print evidence introduced at Petitioner's trial and the issue regarding the new DNA evidence. See Dec., 15, 2016 Motion Hr'g Tr., In re: Michael Harris, Case No. 17-2063 (6th Cir.) (Document 1-2, Page: 36-39). As matters stood at the December 2016 hearing, Petitioner had provided the trial court a compelling petition under Mich. Comp. Laws § 770.16. At Petitioner's trial, the prosecutor had relied on the testimony of an expert regarding testing conducted on the semen stain found on Ula Curdy's clothing. (Sept. 20, 1983, Trial Tr., ECF No. 2-1, PageID.37.) The new DNA evidence definitively tied that stain to another individual and that individual failed a lie detector test where he denied participation in Ula Curdy's death. (Oct. 12, 2016, Michigan State Police Lab Report, ECF No. 2-1, PageID.34.)

         As of mid-December 2016, therefore, it appeared Petitioner had cleared the hurdle of Mich. Comp. Laws § 770.16, ¶7. Only the evidentiary hearing under Mich. Comp. Laws § 770.16, ¶8 remained. At the December 2016 hearing, however, the prosecutor disclosed that he had submitted additional items for DNA testing.

         The January hearing was rescheduled. The Michigan State Police lab completed the additional DNA testing requested by the prosecutor. When the matter came before the trial court for a status conference on June 27, 2017, circumstances had changed significantly. The Michigan State Police lab report revealed that samples swabbed from Ula Curdy's anus contained DNA that matched Petitioner. (June 27, 2017, Status Conf. Tr., ECF No. 2-1, PageID.40.) Accordingly, the trial court concluded that Petitioner had failed to meet the requirements of Mich. Comp. Laws § 770.16, ¶7. (Id., PageID.43.) Because the DNA test results identified Petitioner as the source of biological material at the crime scene, in keeping with the statutory mandate, the court denied Petitioner's motion for new trial. (Id.); In re: Michael Harris, Case No. 17-2063 (6th Cir.) (June 27, 2017, Order, Document 1-2, p. 74).

         The prosecutor, to ensure that the DNA evidence also supported Petitioner's conviction for the murder of Denise Swanson, with the court's permission, submitted the evidence from Petitioner's trial for Ms. Swanson's murder to the Michigan State Police. (Michigan State Police Lab Report, ECF No. 4-1, PageID.88-92); In re: Michael Harris, Case No. 17-2063 (6th Cir.) (June 27, 2017, Order, Document 1-2, p. 74). That evidence also included matches to Petitioner's DNA. (Michigan State Police Lab Report, ECF No. 4-1, PageID.79-87.)

         Petitioner filed a pro per application for leave to appeal the trial court's ruling in the Michigan Court of Appeals. By order entered February 6, 2018, the court of appeals denied leave. (Pet., ECF No. 1, PageID.8.) Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court. (Id., PageID.10.) The supreme court denied leave by order entered May 1, 2018. People v. Harris, 910 N.W.2d 293 (Mich, 2018).[5]

         Before the Michigan Court of Appeals had denied Petitioner's application for leave, Petitioner turned to the Sixth Circuit Court of Appeals for permission to file another habeas petition in this Court. The Sixth Circuit again denied relief. (May 24, 2018 Order, ECF No. 1-1, PageID.21-24.) With regard to the new DNA evidence, however, the Sixth Circuit concluded the claims raised were neither second nor successive. (Id.) Therefore, Petitioner did not require permission from the Sixth Circuit before filing a habeas petition in this Court raising claims based on the new DNA evidence.

         On June 12, 2018, Petitioner filed his habeas corpus petition.

         The petition raises nine grounds for relief, paraphrased as follows:

I. Actual innocence: newly discovered DNA test results link a new suspect to the crime-violating the Fourteenth Amendment.
II. The state violated two stipulated agreements for evidentiary hearings (for the DNA evidence and the fingerprint expert) violating the Fourteenth Amendment Due Process Clause.
III. On May 31, 2017, and December 15, 2016, the state court violated an agreement for defense experts to examine/monitor evidence and testing for ...

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