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Barry v. Haas

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

July 11, 2019

RAY EDWARD BARRY, Petitioner,
v.
RANDALL HAAS, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          David M. Lawson United States District Judge.

         Nineteen-year-old Christopher Green was killed in Geneva Township, Michigan on December 9, 2002. The homicide remained unsolved for years. In 2011, the police renewed their efforts to solve the crime. The petitioner, Ray Edward Barry, ultimately was charged with open murder in Van Buren County, Michigan and convicted of first-degree, premeditated murder. After the petitioner's conviction was affirmed on appeal in state court, the petitioner filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254, raising six claims. In his response to the petition, the warden argues that the petitioner's claims are not cognizable on habeas review or are meritless and that the state appellate court's adjudication of the claims was not unreasonable. Because none of the petitioner's claims supports the issuance of a writ of habeas corpus by a federal court, the petition will be denied.

         I.

         The petitioner was tried in Van Buren County, Michigan circuit court. In its opinion on direct review, the state appellate court summarized the evidence at trial as follows:

On December 9, 2002, Chris [Green] left home on foot to take his friend Benny's dogs some venison. Chris was later found dead in a ditch. There were scuff marks, footprints, splattered blood, broken glass and hats found near Chris's body, which indicated evidence of a struggle. Chris had suffered multiple stab wounds and blunt force trauma to the head. There was no DNA evidence or physical evidence directing police officers to the killer, although footwear impressions were taken. A new database allowed for search of similar tread and four of the five casts had similar tread to New Balance 601, 602, and 801, as well as Ascot Z Tech. In a statement to police in 2004, defendant said that he left out the back door of his home through the woods to another home. But then, in another version, defendant said he was curious about who was lying in the ditch, so he went and saw that it was Chris.
The day before the murder, Richard Martinez observed three young people in the street - a black man, a white man, and a white woman. He identified defendant as the black man he saw. The two men appeared to be ready to “square off” and the woman was walking away, apparently wanting nothing to do with it.
The [Floyd] Cousins family, the Green family, and the Barry family all lived on the same street. Chad Cousins (Chad) testified that he thought defendant “fancied” his sister Lisa. He would come over and talk to her and try and “hang out with her.” He asked Lisa out on a date a few weeks before the murder. Chad testified that defendant came to the Cousins' home on the day of the murder. Defendant appeared to be nervous and fidgety.
Lisa [Cousins] testified that she met Chris six months prior to his death in the spring of 2002 and considered him one of her best friends. Their romantic relationship sort of “slowly fizzled” once Lisa went back to school in the fall of 2002. Lisa's family lived in a house they rented from the defendant's father. Defendant was friends with her father. She had no relationship with her father, who was abusive to her. Near the time of the murder, Lisa noticed a pair of tennis shoes in the box next to their wood stove. She found it odd that he would burn the shoes, as only wood and paper ever went into the stove. Floyd seemed paranoid when he was burning the shoes.
Two weeks prior to the murder, Chris told Randall Simmons (Randall) that Lisa's father had threatened to kill him if he went back to their house. But Chris also told Randall that Lisa's “boyfriend” threatened to beat him up. Randall thought that maybe Chris was referring to a black man that lived down the street (defendant), an individual whom Chris avoided.
Ashley Cousins (Ashley) saw defendant twice at Claude [Taylor's] apartment on the day of the murder. The first time she saw defendant he was dressed nicely and was wearing clean clothes and shoes. Several hours later Ashley saw defendant a second time. She explained: “He was dressed completely different. He had a different tone to him. He looked like something had upset him and he looked bothered, upset, disgruntled. He was dirty. I remember he was very muddy and very dirty and his shoes were like filthy. He didn't look anything like he had looked earlier that day.” Defendant talked quietly with Claude. Ashley “could tell something was wrong. I just didn't know what it was. You could tell something had upset him.”
Claude testified that on the day of the murder, defendant came to Claude's apartment and said that someone had been murdered. Claude thought defendant's attitude was “odd.” He seemed quiet and nervous. Defendant was not wearing his new shoes. Claude asked if defendant knew anything about the murder, but defendant said no. A few months later, Claude told defendant that the police “was kicking in my doors looking for me.” That was when defendant told Claude “what happened” and how “he had got into it with” Chris. Claude testified: “I guess Christopher was looking through the window or something, I don't know, and then they got into it and that he had killed him.” Claude told police about this conversation in 2003 and, in exchange, prosecutors did not pursue breaking and entering charges against him. He still went to prison for over a year for a probation violation.
Claude got out of prison only to get into trouble once again. He realized that the police had re-opened the investigation and Claude agreed to make contact with defendant and wore a wire when talking to defendant.
Jeanine [Black] testified that on the day of the murder, defendant came to the apartment she shared with Claude and “he just wasn't his self.” He was pacing and it appeared that something was bothering him. Defendant was not wearing the new shoes Jeanine had bought for him - New Balance brand. Approximately a month after the murder, defendant told Jeanine that he had burned the shoes in a barrel behind the house because they had blood on them. Defendant said that somebody he did not know had been looking through the window and he grabbed a knife and went outside to “scare him off.” Defendant admitted to stabbing the individual.
Antonio [Harris] testified that defendant called him and said “‘Do you want to know something?'” and proceeded to tell Antonio that he beat up Chris, and got blood on his shoes.
John Reed (John) testified that in 2012, defendant “come out to the house and he was looking for Boddy and he said, well, do you know where the [defendant] lives, and I said, yeah. He said, well, will you take me up there so I can kill [him] because he said - he's been going around town saying that I raped Green and killed him - raped him before I killed him.” Defendant told John that he did some “bad stuff” while John was in prison. Defendant told John that both he and Chris were dating Lisa. Defendant said that he and Boddy waited until Chris came near the trailer and then defendant “he beat him up.” People v. Barry, No. 321330, 2015 WL 4746250, at *14-15 (Mich. Ct. App. Aug. 11, 2015).

         The petitioner did not testify. His defense was that the prosecution relied on incredible witnesses and that reasonable doubt existed because the prosecution was unable to prove its case when the crime occurred years earlier. Defense counsel also argued to the jury that the victim could have been killed in a car accident or assaulted by someone else, such as the men who discovered the victim's body or Lisa Cousins' abusive father, Floyd Cousins. The petitioner

attempted to explain his damning statements [to witnesses] by implying that he was not only of low intellect, but suffered notions of grandeur. Licensed psychologist William Brooks testified that defendant had borderline intellectual functioning and “psychotic disorder not otherwise specified.” Someone with the disorder would demonstrate thought disorder and delusional thinking. There may be severe and significant mood instability. Grandiosity, i.e., the need to be the center of attention is also a feature. An individual with delusions of grandeur wants to be “a part of the action, be a part of the center of the focus, be somebody important to the person that you want to impress.” Someone with a low IQ might be gullible or easily manipulated.

Id., 2015 WL 4746250, at *15. It was the prosecution's theory that the petitioner killed the victim because he had a love interest in Lisa Cousins and wanted to eliminate the victim, who was Lisa's boyfriend.

         The trial court instructed the jury on first-degree, premeditated murder, second-degree murder, and voluntary manslaughter. On February 6, 2014, the jury found the petitioner guilty of first-degree murder, and on March 24, 2014, the trial court sentenced the petitioner to life in prison.

         The petitioner filed a direct appeal, raising the same claims to the Michigan Court of Appeals as he asserts in his habeas petition. The Court of Appeals adjudicated the petitioner's claims on the merits and affirmed his conviction. See Barry, 2015 WL 4746250. The Michigan Supreme Court denied leave to appeal.

         Barry filed his habeas corpus petition, alleging the following claims for relief:

I. The district court abused its discretion in binding over to circuit court and the circuit court erred in refusing to quash the information.
II. The trial court abused its discretion in denying the motion to quash the information and dismiss the charges with prejudice when it was discovered that clearly exculpatory evidence had been lost due to negligence of the police in mailing it to an independent laboratory for DNA testing. The trial court erroneously ruled that the evidence was not clearly exculpatory and due process requires that the conviction be vacated and the charges be dismissed. U.S. Const Am XIV. Additionally, the trial court reversibly erred in failing to give an adverse inference instruction to the jury.
III. The trial court abused its discretion in failing to admit evidence under MRE 404(b) that the putative third party assailant had choked his daughter with a wooden stick such that she suffered blunt force trauma when the forensic evidence was showed that the deceased suffered blunt force trauma, as well as stab wounds, and a tree branch was found over his body.
IV. The trial court abused its discretion in admitting gruesome photos of the deceased victim.
V. Petitioner was denied a fair trial and due process of the law, and the trial court abused its discretion in failing to order a mistrial, when the prosecution failed to disclose to the defense certain critical evidence-additional hairs-although the prosecution knew that the evidential value of the hairs taken from the crime scene were critical. This amounts to a Brady violation and prosecutor misconduct and the remedy is vacating the conviction and dismissal of the charges. Finally, trial counsel was ineffective in failing earlier to see that additional hairs remained which could have been tested, and to request testing of these hairs.
VI. Petitioner's conviction must be vacated and the charges dismissed due to insufficiency of the evidence. U.S. Const Am XIV.

Pet. at 7, 8, 9, 11, 12, 13.

         The warden argues that some of the claims are not cognizable by a federal court under 28 U.S.C. § 2254, and the balance of the claims lack merit.

         II.

         Certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the standard of review federal courts must apply when considering an application for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court may grant relief only if the state court's adjudication “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 if the adjudication ...


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