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Henke v. Mccullick

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

May 9, 2019

TODD EDWARD HENKE, #162250, Petitioner,
v.
MARK MCCULLICK, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner asserts that he is being held in violation of his constitutional rights. In 2014 petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316, and felonious assault, Mich. Comp. Laws § 750.82, following a jury trial in Oakland County Circuit Court and was sentenced as a fourth habitual offender to concurrent terms of life imprisonment without the possibility of parole. Petitioenr raises claims concerning the conduct of the prosecutor and the effectiveness of his trial counsel. For the reasons stated below, the Court shall deny the petition, deny a certificate of appealability, and deny leave to proceed on appeal in forma pauperis.

         II. Facts and Procedural History

         Petitioner's convictions arise from the fatal stabbing of one man and the non-fatal assault upon another man at a residence in Waterford, Michigan, in January, 2014. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, as follows:

Defendant's convictions arise from the stabbing death of Kurt Houghteling, and felonious assault of David Wasiel, both of whom were defendant's friends. Wasiel and Doyle Odle were both present when the victim was stabbed, and they each testified that defendant lunged toward Houghteling when the stabbing occurred. The defense theory at trial was that defendant stabbed Houghteling accidently.
The defense theory of an accidental stabbing was supported solely by defendant's testimony, on direct examination, that he inadvertently stabbed the victim when he tripped over the victim's leg and fell on top of the victim.
* * *
At trial, the prosecutor questioned defendant as follows regarding his failure to offer the accident theory before trial:
Q. And you've told this jury your story about what you say happened that night, right?
A. Exactly as I know how it happened.
Q. Well, how come you never told anybody else this story? I mean you had- A. I haven't seen nobody.
Q. Oh, really. Didn't Detective Morgan ask to talk to you and ask for your story?
A. I don't remember half of it, sir.
* * *
Q. Didn't Detective Morgan ask to talk to you and ask for your story, and you didn't tell him anything like that, right?
A. I don't really remember that.
Q. Well, do you remember that you haven't told anybody this story before at all?
A. I've been in a cell for eight months.
Q. Isn't it true that this is the first time you have ever told anybody this story?
A. No.
Q. Who else have you told?
A. People in my cell.
Q. Okay, how ‘bout people from the law enforcement community, how ‘bout the detective? You never told the detective this story.
A. No.
Q. And you had a chance to tell the Detective this story.
A. I didn't know what to do. I was just messed up over everything.
* * *
Q. Okay, but the point is that you could have told the officers the story, and you didn't right?
A. I don't remember-remember what ...

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