United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
A STAY , DENYING THE AMENDED PETITION , DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Shane Roscoe ("Petitioner"), a state inmate
confined at the Chippewa Correctional Facility in Kincheloe,
Michigan, seeks habeas corpus relief pursuant to 28 U.S.C.
§ 2254. Petitioner was convicted after a jury trial in
Washtenaw County Circuit Court and now challenges his
convictions for first-degree, felony murder, Mich. Comp. Laws
§ 750.316(1)(b), safe breaking, Mich. Comp. Laws §
750.531, breaking and entering a building with intent to
commit a larceny, Mich. Comp. Laws § 750.110, and
assaulting, resisting, or obstructing a police officer, Mich.
Comp. Law § 750.81d. Before the Court are
Petitioner's amended petition and recent motion for a
stay of this case while he pursues additional state remedies.
For the reasons below, the Court will deny Petitioner's
motions for a stay and to amend the petition.
primary charges against Petitioner arose from a breaking and
entering at the Jim Bradley car dealership in Washtenaw
County early on August 18, 2006. As explained by the Michigan
Court of Appeals, the breaking and entering
resulted in the death of one of the employees. It was alleged
that defendant and his [nephew], Jonathon Aiden, broke into
the dealership, where they had previously worked, and stole
paint and chemical hardeners. In the process, one of the
night workers discovered the two men, and as a result, they
hit him in the head twice with a blunt object and then ran
him over with his own vehicle.
People v. Roscoe, 303 Mich.App. 633, 638-39 (2014).
evidence at trial also established that, at 4:14 a.m. on the
day of the crimes, Aiden called the 911 operator and stated
that someone in the parking lot of the dealership needed
assistance. ECF 14-12, PgID 1067. Aiden and Petitioner
subsequently went to Petitioner's home in Pinckney,
that same day, Petitioner informed his wife Kimberly that he
and Aiden had gone to the dealership and tried to rob the
place, but something had gone terribly wrong. He explained
that Sam, the security guard, had confronted Aiden in the
parking lot of the dealership and that he (Petitioner) had
hit the guard twice on the back of the head with a brick.
Petitioner also stated that he and Aiden took a cell phone
from the dealership, and after Aiden called 911, they threw
the cell phone out the window of Petitioner's truck.
Aiden later got rid of the things that the two men took from
the dealership by placing the things in a dumpster in the
Detroit area. ECF 14-13, PgID 1097-98.
at approximately 5:15 a.m. that same day, an employee of the
dealership arrived for work and saw the injured victim
stumble out of nearby trees. The employee called the police,
and when paramedics arrived at the scene, the victim stated
that he had been run over by a vehicle. ECF 14-11, PgID 905,
924, 927, 929.
an investigation of the crimes, the police interviewed and
photographed employees of the dealership, and on August 23,
2006, a detective went to the hospital and spoke with the
victim. The detective showed the victim forty-one photographs
of current and former employees of the dealership, because
the victim had previously said that his attackers were
current or former mechanics at the dealership. Out of those
forty-one photographs, the victim isolated five photographs,
including the photographs of Petitioner, Aiden, an employee
named Kurt Kuehne, and two other men. The victim informed the
police that Petitioner and Koehne definitely were his
attackers and that Aiden could have been one of his
attackers. ECF 14-13, PgID 1144-46; ECF 14-14, PgID 1152. The
police eventually eliminated Kuehne as a suspect. ECF 14-14,
victim died in the hospital on September 14, 2006, while the
investigation was ongoing. Id. at 1153. Petitioner
was briefly taken into custody, but then released and not
charged with anything. ECF 14-13, PgID 1090. In 2011,
Petitioner and his wife Kimberly divorced. Kimberly then
informed the police about Petitioner's involvement in the
crimes at the dealership. Id., PgID 1093-94.
was subsequently charged with open murder, safe breaking,
breaking and entering a building with intent to commit a
larceny, and two counts of resisting and obstructing a police
officer. The last two counts arose from Petitioner's
attempts to avoid being handcuffed after he was taken into
custody on August 24, 2006, and placed in an interview room
at the Washtenaw County Sheriff's Department. ECF 14-12,
PgID 1045, 1047-49, 1071-73.
was tried in Washtenaw County Circuit Court in 2012. There
was no physical evidence (fingerprints, shoe impression, DNA,
murder weapon, or stolen items) linking him to the crimes.
The primary evidence against him on the murder,
breaking-and-entering, and safe breaking charges came from
his ex-wife Kimberly and the detectives who spoke with the
murder victim in the hospital. Petitioner did not testify or
present any witnesses. His defense was that he was not
guilty, that he was at home during the commission of the
crimes at the car dealership, that Kimberly was a bitter
ex-wife and a liar, and that the prosecution had not proved
its case beyond a reasonable doubt.
first count, the trial court instructed the jury on
premeditated murder, felony murder, second-degree murder, and
voluntary manslaughter. On June 8, 2012, the jury found
Petitioner guilty of felony murder, safe breaking, breaking
and entering a building with intent to commit a larceny, and
one count of resisting and obstructing a police officer. The
jury acquitted Petitioner of premeditated murder and one
additional count of resisting and obstructing a police
trial court sentenced Petitioner to life imprisonment without
the possibility of parole for the murder. The court also
sentenced Petitioner as a fourth habitual offender to
concurrent terms of nineteen to fifty years in prison for the
safe-breaking conviction, twelve years, eight months to
twenty years in prison for the breaking-and-entering
conviction, and one to two years in prison for the
appeal as of right, Petitioner argued through counsel that
the admission of the victim's hearsay statements deprived
him of a fair trial and his right of confrontation, that
counsel's failure to object to the hearsay on
constitutional grounds deprived him of effective assistance,
and that the admission of "other acts" evidence
deprived him of due process. In a pro se supplemental brief,
Petitioner argued that the trial court's failure to
disqualify itself was a structural error, that the
prosecutor's misconduct deprived him of due process and a
fair trial, and that the trial court violated his right to an
impartial jury and fair trial by not dismissing an alternate
juror by random draw. The Michigan Court of Appeals rejected
Petitioner's claims and affirmed his convictions in a
published opinion. See Roscoe, 303 Mich.App. at 633. The
Michigan Supreme Court denied leave to appeal. See People
v. Roscoe, 497 Mich. 946 (2014).
September 25, 2015, Petitioner filed a motion for relief from
judgment, in which he argued that his trial attorney had an
actual conflict of interest and that the trial court abused
its discretion by appointing counsel with an actual conflict
of interest. ECF 14-18. While that motion was pending in the
state trial court, Petitioner his habeas corpus petition, ECF
1, and a motion to stay the federal proceeding while he
continued to pursue state remedies, ECF 3. On May 17, 2016,
the Court granted Petitioner's motion for a stay, held
this case in abeyance, and administratively closed the case.
18, 2016, the Washtenaw County Circuit Court denied
Petitioner's motion for relief from judgment, ECF 14-19,
and on December 28, 2016, the Michigan Court of Appeals
denied his application for leave to appeal the trial
court's decision. See People v. Roscoe, No.
334281 (Mich. Ct. App. Dec. 28, 2016), ECF 14-20, PgID 1588.
Subsequently, Petitioner filed an application for leave to
appeal in the Michigan Supreme Court, which denied the
application on November 29, 2017. People v. Roscoe,
501 Mich. 925 (2017).
then returned to the Court and filed a motion to lift the
stay, ECF 8, a motion to amend his petition, ECF 9, and an
amended petition, ECF 10. On February 27, 2018, the Court
granted Petitioner's motions to lift the stay and to
amend the petition and ordered Respondent to file an answer
to the allegations in the amended petition. ECF 11. On June
14, 2018, Respondent filed a response to the amended petition
with the state-court record, ECF 13, 14, and on July 13,
2018, Petitioner filed a reply, ECF 13-15. Finally, on July
9, 2019, Petitioner filed another motion to stay the federal
proceeding. ECF 16.
Court may not grant habeas relief to a state prisoner unless
his claims were adjudicated on the merits and the state court
adjudication was "contrary to" or resulted in an
"unreasonable application of" clearly established
Supreme Court law. 28 U.S.C. § 2254(d)(1).
Supreme Court has held that a state court's decision is
contrary to "clearly established law if it 'applies
a rule that contradicts the governing law set forth in
[Supreme Court cases]' or if it 'confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result
different from [this] precedent.'" Mitchell v.
Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)).
state court unreasonably applies Supreme Court precedent not
when its application of precedent is merely "incorrect
or erroneous" but when its application of precedent is
"objectively unreasonable." Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003) (internal citations
omitted). "A state court's determination that a
claim lacks merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the
correctness of the state court's decision."
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 654
federal court reviews only whether a state court's
decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court
renders its decision. Greene v. Fisher, 565 U.S. 34,
38 (2011). A state court need not cite to or be aware of
Supreme Court cases, "so long as neither the reasoning
nor the result of the state-court decision contradicts
them." Early v. Packer, 537 U.S. 3, 8 (2002).
Further, decisions by lower federal courts "may be
instructive in assessing the reasonableness of a state
court's resolution of an issue." Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.
a federal habeas court presumes the correctness of state
court factual determinations. See 28 U.S.C. §
2254(e)(1). A petitioner may successfully rebut the
presumption only by clear and convincing evidence.
Motion to Stay Proceedings
pending motion for a stay, Petitioner asks the Court to hold
his petition in abeyance while he files another motion for
relief from judgment in the state trial court. The
state-court motion alleges that Petitioner has
newly-discovered evidence consisting of Washtenaw County
Detective John Scafasci's application for a pen register
and "trap and trace" device for a cellular
telephone used by Aiden. ECF 16, PgID 1811-21. The
application states, among other things, that at 0527 hours,
approximately 75 minutes after the homicide, Aiden's cell
phone made calls that bounced off a cell phone tower in Ann
Arbor, Michigan. Id. at 1819, ¶ GG.
asserts that the statement about Aiden's cell phone is
exculpatory evidence because it reveals that Aiden was in Ann
Arbor at 5:30 a.m. on the day of the crime even though
Petitioner's ex-wife Kimberly testified at trial that he
and Aiden were at the Roscoes' home in Pinckney at the
time. Petitioner further alleges in his proposed state-court
motion that the prosecutor relied on Kimberly's false
testimony regarding Aiden's whereabouts at 5:30 a.m. on
the day of the crime. Finally, Petitioner claims that he is
innocent of the crimes for which he is incarcerated.
federal district court has authority to abate or to dismiss a
federal habeas action pending resolution of state
post-conviction proceedings." Sitto v. Bock,
207 F.Supp.2d 668, 676 (E.D. Mich. 2002) (citing Brewer
v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998)). But
"to stay federal proceedings and to hold a habeas
petition in abeyance pending resolution of state court
proceedings" requires "exceptional or unusual
circumstances." Id. Furthermore, a federal
court ordinarily may grant a motion for a stay only if (1)
the petitioner shows good cause for his failure to exhaust
his claim first in state court, (2) the unexhausted claim is
not plainly meritless, and (3) the petitioner is not engaged
in dilatory tactics. Rhines v. Weber, 544 U.S. 269,
277-78 (2005). Petitioner's proposed new claim about
Detective Scafasci is based on Brady v. Maryland,
373 U.S. 83 (1963), in which the Supreme Court held that
"the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution." Id. at 87. To prevail on his
Brady claim, Petitioner must show that the evidence at issue
is favorable to him, "either because it is exculpatory,
or because it is impeaching; that the evidence" was
"suppressed by the State, either willfully or
inadvertently;" and that he was prejudiced by
suppression of the evidence. Strickler v. Greene,
527 U.S. 263, 281-82 (1999).
even if the Court were to assume that the prosecution
suppressed Detective Scafasci's application for
information about Aiden's cell-phone usage,
Petitioner's Brady claim still fails. As noted above,
Detective Scafasci indicated in his application for a pen
register that Aiden's cell phone call at 5:27 a.m. on
August 18, 2006, bounced off a cell phone tower in Ann Arbor.
This does not necessarily mean that Aiden was in Ann Arbor at
the time. It also does not contradict Kimberly Flamil's
trial testimony because she did not say exactly when
Petitioner and Aiden arrived at her and Petitioner's home
in Pinckney on August 18, 2016. She merely testified that the
two men arrived sometime before 5:30 a.m. on August 18, 2016.
ECF 14-13, PgID 1097 (emphasis added). This testimony did not
exclude the possibility that Aiden made calls that bounced
off an Ann Arbor cell tower at 5:27 a.m. that day. In fact,
there was testimony that someone used the Roscoes' land
line to call Aiden's cell phone at 5:33 a.m. that day.
ECF 14-14, Pg ID 1159.
an employee for Metro PCS cell phone company indicated at
trial that a signal from Aiden's phone hit a cell tower
as early as 5:27 a.m. on August 18, 2006. ECF 14-13, PgID
1135. Consequently, the jury was made aware that Aiden was on
the move as early as 5:27 a.m. on August 18, 2016.
information in Detective Scafasci's application is
therefore not exculpatory new evidence, and Petitioner's
Brady claim does not have sufficient merit to warrant holding
his habeas petition in abeyance.
claim that the prosecutor suborned perjury also fails. To
prevail on that claim, Petitioner must show that (1) Kimberly
(Roscoe) Flamil's trial testimony was false, (2) the
testimony was material, and (3) the prosecutor knew the
testimony was false. Amos v. Renico, 683 F.3d 720,
728 (6th Cir. 2012). Petitioner concludes from Detective
Scafasci's application for a pen register for Aiden's
cell phone that Ms. Flamil lied when she testified that Aiden
and he were at her and Petitioner's home at 5:30 a.m. on
August 18, 2006. As explained above, however, Ms. Flamil
stated that Aiden and Petitioner were at her and Roscoe's
home sometime before 5:30 a.m. She did not provide an exact
time for their arrival.
has failed to show that Ms. Flamil's testimony was false
and that the prosecutor knew Ms. Flamil's testimony was
false. Therefore, his perjury claim does not have sufficient
merit to warrant holding his habeas petition in abeyance, and
to the extent that Petitioner is raising an independent claim
of actual innocence, his claim is not cognizable on habeas
review. Herrera v. Collins, 506 U.S. 390, 400
Court concludes that the claims presented in Petitioner's
proposed motion for relief from judgment lack merit.
Therefore, Petitioner is therefore not entitled to a stay
while he pursues additional state remedies. The Court will
proceed to address his current claims.
raises seven general grounds for relief. The Court ...