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Kimple v. Bauman

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

February 13, 2019

JAMES KIMPLE, Petitioner,
v.
CATHERINE BAUMAN, Respondent.

          Honorable Gordon J. Quist Judge

          REPORT AND RECOMMENDATION

          Timothy P. Greeley United States Magistrate Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner James Kimple is incarcerated with the Michigan Department of Corrections at the Marquette Branch Prison (MBP) in Marquette, Michigan. Following a three-day jury trial in the Calhoun County Circuit Court, Petitioner was convicted of second-degree murder, Mich. Comp. Laws § 750.317, and felony firearm, Mich. Comp. Laws § 750.227b. On June 21, 2013, the court sentenced Petitioner as a habitual offender-second offense, Mich. Comp. Laws § 769.10, to a prison term of 40 to 60 years for second-degree murder to be served consecutive to a prison term of 2 years for the felony firearm violation.

         On December 13, 2016, Petitioner filed his habeas corpus petition raising 2 grounds for relief, as follows:

I. The trial court denied Mr. Kimple a fair trial and the right to present a defense by denying the requested instructions on self-defense, given the evidence presented at trial regarding the prolonged bullying Mr. Kimple suffered at the hands of the decedent and his reasonable fear of great bodily harm on the night of the shooting; in the alternative, trial counsel was ineffective for failing to object to the final jury instructions.
II. The prosecutor engaged in misconduct in closing argument which violated Mr. Kimple's due process rights; trial counsel was constitutionally ineffective for failing to object to the misconduct.

(Pet., ECF No. 1, PageID.3.) Respondent has filed an answer to the petition (ECF No. 5) stating that the grounds should be denied because they are procedurally defaulted or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

         The Michigan Court of Appeals described the facts underlying Petitioner's convictions as follows:

Juan Tyler Riddle was fatally shot in the back at approximately 9:10 p.m. in Albion on May 4, 2012. A few hours later, defendant surrendered himself to police. Defendant admitted to Detective Luis Tejada of the Albion Department of Public Safety that he had shot Riddle when they met on the street, but had done so because he feared Riddle was going to seriously injure him. Defendant was subsequently arrested and bound over for trial.
At trial, Tejada testified that defendant told him the shooting stemmed from a chance encounter with Riddle. Defendant was walking downtown when Riddle pulled up next to him in his car and rolled down the window on the passenger side. The two exchanged words. Riddle then pulled over and exited the car. Afraid that Riddle was going to draw a weapon out of the car, defendant pulled his 9mm handgun out of his waistband and fired twice in Riddle's direction, after which Riddle turned and ran away. Having accidentally ejected the handgun's clip, defendant paused long enough to reinsert it and pull the slide back to chamber another round, and then fired two or three more shots at Riddle as he fled. According to the forensic pathologists, one of these bullets hit Riddle in the back and passed upward through his heart, causing his death.
Tejada also identified inconsistencies between the evidence and aspects of defendant's statement. First, the bullet-hole evidence found at the scene contradicted defendant's explanation of the shooting. Second, the layout of the street was inconsistent with defendant's explanation of where he was when he first saw Riddle's car.
Defendant's girlfriend and mother both testified that defendant was afraid of Riddle and Riddle's brother, because they had long harassed him. Defendant's mother testified that the latest harassing incident had occurred the day before the shooting, when Riddle had knocked a meal out of defendant's hand and then stomped on it. This incident, defendant told Tejada, prompted him to begin carrying a handgun for protection.

(Mich. Ct. App. Op., ECF No. 6-10, PageID.263-264.)

         Petitioner was charged with open murder. (Calhoun Cty. Cir. Ct. Docket Sheet, ECF No. 6-1, PageID.56.) The prosecutor presented testimony that Petitioner and his mother told police he had shot Riddle at the direction of his girlfriend. (Trial Tr. II, ECF No. 6-6, PageID.153, 192.)

         Defense counsel explored several possible defenses before trial. Petitioner was examined to determine his competence, but was found to be competent. (Hrg. Tr. II, ECF No. 6-4, PageID.116.) Petitioner's counsel also submitted proposed jury instructions that included instructions on self-defense. At trial, however, the court did not read the self-defense instructions and Petitioner's counsel never raised the issue of self-defense.[1] When the judge asked counsel if either had any objection to the instructions as read-instructions that made no mention of self-defense-each counsel indicated he did not. (Trial Tr. III, ECF No. 6-7, PageID.233.)

         Defense counsel argued that Petitioner's fear of Riddle was justified in light of the history of confrontation between them. (Id., PageID.227.) Counsel contended that Petitioner simply panicked and did not act rationally when he fired wildly at Riddle. (Id., PageID.227-228.) He urged the jury to convict Petitioner of no more than voluntary manslaughter. (Id.)

         The jury deliberated for several hours before finding Petitioner guilty of second-degree murder, a middle ground between the first-degree murder conviction sought by the prosecutor and the voluntary manslaughter conviction proposed by the defense.

         Petitioner, with the assistance of counsel, raised two issues in the Michigan Court of Appeals-the same issues he raises in this Court. (Pet'r's Appeal Br., ECF No. 6-10, PageID.282.) By unpublished opinion issued February 17, 2015, the court of appeals affirmed the trial court. (Mich. Ct. App. Op., ECF No. 6-10, PageID.263-269.) Petitioner sought leave to appeal that decision in the Michigan Supreme Court. That court denied leave by order entered September 29, 2015. (Mich. Order, ECF No. 6-11, PageID.360.) This timely petition followed.

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         Petitioner contends that he was denied due process by the trial court's failure to instruct the jury on self-defense. Alternatively, Petitioner argues that his counsel rendered ineffective assistance by failing to object to the instructions which excluded the self-defense instruction. The Michigan Court of Appeals concluded that Petitioner had waived his claim of instructional error by expressly approving the instructions as read. (Mich. Ct. App. Op., ECF No. 6-10, PageID.264.) The appellate court noted that even if Petitioner had not waived the claim he was not entitled to the instruction because he never made a self-defense claim at trial.[2] Instead, the court noted, he “argued that [he] panicked and began shooting wildly during a confrontation with Riddle . . . .” (Id., PageID.265.) Finally, the court of appeals noted, there was no evidence admitted supporting a self-defense argument:

CJI2d 7.23 (“Past Violence by Complainant or Decedent”) instructs the jury to consider evidence “that the decedent may have committed violent acts in the past and that the defendant knew about these acts” when considering whether a defendant “honestly and reasonably feared for his safety.” CJI2d 7.23.1. Here, no one testified that Riddle was a violent and brutal person. The only act of violence attributed to Riddle was that he had knocked a chicken dinner out of defendant's hand and stomped on it. No. one alleged that defendant and Riddle had ever fought or that Riddle had ever specifically threatened defendant harm. In the absence of evidence that Riddle committed specific violent acts, the trial court did not err in omitting CJI2d 7.23 from its instructions to the jury. See People ...

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