United States District Court, W.D. Michigan, Southern Division
Honorable Gordon J. Quist Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN United States Magistrate Judge.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Jackie Dale McConell is
incarcerated with the Michigan Department of Corrections at
Saginaw County Correctional Facility Freeland, Michigan.
Following a jury trial in the Calhoun County Circuit Court,
Petitioner was convicted of second-degree murder, Mich. Comp.
Laws § 750.317. On September 12, 2014, the court
sentenced Petitioner to a prison term of sixty to ninety
26, 2017, Petitioner filed his habeas corpus petition. Under
Sixth Circuit precedent, the application is deemed filed when
handed to prison authorities for mailing to the federal
court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir.
2002). Petitioner placed his petition in the prison mailing
system on June 26, 2017. (Pet., ECF No. 1, PageID.102.)
petition raises four grounds for relief, as follows:
I. DUE PROCESS REQUIRES VACATING DEFENDANT'S CONVICTION
AND SENTENCE WHERE THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO
CONVICT OF SECOND DEGREE MURDER.
II. DEFENDANT'S INCULPATORY STATEMENTS WERE INADMISSIBLE
UNDER THE CORPUS DELICTI RULE.
III. DEFENDANT WAS DEPRIVED OF THE RIGHT TO PRESENT A DEFENSE
WHEN THE TRIAL COURT REFUSED FUNDS TO HIRE AN EXPERT
REGARDING THE CAUSE OF DEATH.
IV. DUE PROCESS REQUIRES VACATING DEFENDANT[']S
CONVICTION AND SENTENCE WHERE THE DEFENDANT[']S 4TH AND
14TH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION
W[ERE] VIOLATED DUE TO THE WARRANTLESS AND NON-CONSENSUAL
ENTRY INTO THE HOME OF THE DEFENDANT ON NUMEROUS OCCASIONS BY
LAW ENFORCEMENT OFFICERS.
(Pet., ECF No. 1, PageID.93, 110.) Respondent has filed an
answer to the petition (ECF No. 8), stating that the grounds
should be denied because they are noncognizable, procedurally
defaulted, and without merit. 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 either noncognizable or without merit.
Accordingly, I recommend that the petition be denied.
conviction arose out of the death of Donna Frost,
Petitioner's then-girlfriend. The following summary of
the trial testimony is taken from the decision of the
Michigan Court of Appeals:
Defendant and the victim in this case, Donna Frost, dated for
several months and lived together in a house in Albion that
defendant rented. Frost's daughter, Renee Farrier,
testified that Frost had numerous medical conditions,
including “ulcers in her stomach, ”
“something wrong with her blood pressure, ” and
anemia. Defendant admitted that Frost was small and frail.
There was testimony that defendant and the victim drank
heavily, leading at times to verbal and physical
altercations. At some point before her demise, Frost's
family and friends gathered to conduct what they classified
as an “intervention” to try and coax Frost into
leaving defendant. This proved unsuccessful despite the fact
that the victim confided to her sister, Deborah McConnell,
that defendant had physically abused her in the past.
Deborah testified that she became concerned about Frost in
January 2014 “[b]ecause [she] was told that Jackie
[defendant] was-hasn't been seen and that the people that
were living with him said that Donna wasn't there for
over a week.” Deborah told her husband about her
concerns and he contacted the Albion police.
Albion Department of Public Safety Officer Richard Decker
testified that he did a “welfare check” on
defendant's house on January 20, 2014, after Frost's
family members “had not heard from her for several days
. . . [and] requested that [he] accompany them to the house
to see if she was there, and if so, to check on her
condition.” They found no one there but a dog. Albion
Department of Public Safety Detective Luis Tejada testified
that after talking with members of Frost's family, he
“determined that there was too many red flags going on,
” explaining that he “realized that [Frost] did
not have the physical means to just get up and walk away from
that residence.” This led to a second “welfare
check” on the home where again, police were unable to
find defendant and no evidence was gleaned from their entry.
Eventually, police surmised that defendant had been in North
Carolina visiting his nephew, Brandon Russell. Tejada and the
other officers “decided to-at least three or four of
[them] needed to go down there and interview Brandon Russell
and his live-in partner Mr. Henry to find out what happened
to Jackie.” When they arrived in North Carolina, Tejada
called defendant and defendant agreed to come to a local
police station to meet with them. Tejada testified that he
advised defendant of his Miranda2 rights and that defendant
signed a waiver form and agreed to talk with him. The
interview, which took place on January 26, 2014, was
videotaped, and a portion of the video was played at trial.
In the video, defendant initially denied knowing Frost's
whereabouts, but upon further questioning said:
“Let's cut the bullshit.” Defendant then told
Tejada that Frost was “[a]t Blake's Tree Farm in a
hole.”3 Defendant explained that he and Frost were both
naked because they had just finished having sex and they then
got into “a bad fight” and he “hit her too
hard” with his fist. Defendant said that after he hit
her, he dressed her, put her in bed, and lay with her for a
couple hours. He said that he then put her in the trunk of
his car and drove to his sister's house, and when she was
not home defendant admitted that he then dumped Donna Frost
in the pit.
Tejada also testified about defendant's statements that
were not on the video played to the jury. He testified that
defendant said that he had “hit [Frost] really hard on
the face/head area with his hands . . . .” Tejada also
testified that defendant “said that there was a little
bit of blood . . . [and] some injuries here on this side of
the face.” Tejada testified that defendant said that
after he hit Frost, she was not breathing and did not have a
pulse, but chose not to call 9-1-1 because defendant thought
Frost to be dead. However, Tejada added that defendant
“mentioned during the interview that he was hoping that
[Frost] was knocked out, that she-it was just all a
nightmare, but he realized that she was dead, she was
gone.” Tejada testified that according to his
conversation with defendant, the time of Frost's death
was January 14, 2014[, ] between midnight and 2:00 a.m. or
Based on the information provided to police, Frost's body
was discovered and an autopsy was performed. Dr. Brandi
Shattuck, a forensic pathologist, who was qualified at trial
as an expert in that field testified that she performed the
autopsy on Frost.
Shattuck testified that there was “a laceration on the
right forehead, ” a “contusion, which is a
bruise, adjacent to that area, ” and “ecchymosis,
which is discoloration or a bruise around the eyes.”
She also testified that there were abrasions on Frost's
torso and back. Regarding the lacerations on Frost, Shattuck
testified that “[t]here was no pattern” and that
she “couldn't tell you if it was anything other
than something blunt.” She also testified that there
were no defensive wounds on Frost's hands.
Shattuck testified that her internal examination revealed
“two areas of healing fracture and one area of
perimortem fracture” on the left and right ribs,
explaining that a “perimortem” fracture
“happens on or around the-the time of death.” She
testified that there were also “multiple areas of
hemorrhage in the soft tissue of the scalp.”
Shattuck determined that the cause of death was “blunt
injury to the head” and classified it as a homicide. As
the “cause of death” on the death certificate,
Shattuck stated, “Blunt force injuries of head with or
without associated hypothermia”4. Shattuck concluded
that she arrived at the cause of death because of the
injuries, defendant's confession, and the fact that she
had “no other competing mechanism for that
Testimony revealed that the victim's sister was married
to defendant's brother.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16
L.Ed.2d 694 (1966).
Tejada described the hole as follows: “It's more of
a pit, 30 feet wide, 20 feet long, and about 10 feet deep
that they use to burn tree trunks, boards, debris,
mattresses, anything that they throw in there, they burn it
up. It's just a burning pit.”
Tejada testified that the weather during that time had been
“in the single digits, really cold, ” and there
was “at least a foot of snow on the ground and
continual falling ...