United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
M. Lawson United States District Judge.
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
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
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
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).
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
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
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.
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.
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.
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
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.
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.
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