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Roscoe v. Horton

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

August 28, 2019

SHANE ROSCOE, Petitioner,
v.
CONNIE HORTON, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S MOTION FOR A STAY [16], DENYING THE AMENDED PETITION [10], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         BACKGROUND

         The 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).

         The 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, Michigan.

         Later 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.

         Meanwhile, 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.

         During 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, PgID 1152.

         The 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.[1] Kimberly then informed the police about Petitioner's involvement in the crimes at the dealership. Id., PgID 1093-94.

         Petitioner 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.

         Petitioner 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.

         On the 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 officer.

         The 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 resisting-and-obstructing conviction.

         In an 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).

         On 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. ECF 6.

         On July 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).

         Petitioner 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.

         STANDARD OF REVIEW

         The 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).

         The 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)).

         The 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 (2004)).

         A 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. 2003)).

         Finally, 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. Id.

         DISCUSSION

         I. Motion to Stay Proceedings

         In his 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.

         Petitioner 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.

         "A 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).

         Here, 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.

         Furthermore, 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.

         The 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.

         Petitioner's 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.

         Petitioner 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 (1993).

         The 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.

         II. The Habeas Petition

         Petitioner raises seven general grounds for relief. The Court ...


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