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Bass v. Burt

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

August 29, 2019

WALTER BASS, III, Petitioner,
v.
S.L. BURT, Respondent,

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING PETITIONER'S MOTION FOR ORAL ARGUMENT, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Petitioner Walter Bass, III (“Petitioner”), confined at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges the following state-court convictions: (i) first-degree premeditated murder in violation of Michigan Compiled Laws § 750.316(1)(a); (ii) first-degree felony murder in violation of Michigan Compiled Laws § 750.316(1)(b); (iii) felon in possession of a firearm in violation of Michigan Compiled Laws § 750.224f; (iv) possession of a firearm in the commission of a felony (felony firearm) in violation of Michigan Compiled Laws § 750.227b; (v) mutilation of a dead body in violation of Michigan Compiled Laws § 750.160; and (vi) being a fourth felony habitual offender under Michigan Compiled Laws § 769.12. For the reasons that follow, the Court is denying Petitioner habeas relief.

         I. Background

         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals when denying Petitioner's direct appeal:

This case arises out of the March 10, 2013 disappearance of Evelyn Gunter (the victim), whose badly charred remains were eventually discovered in the garage of an abandoned house in Detroit. The evidence against defendant in the trial court was almost entirely circumstantial.
At the time of her disappearance, the victim had an intimate, romantic relationship with defendant. The victim introduced her daughter, Jemmima Gunter, to defendant-who introduced himself as “Tiko”-in December 2012. The victim's teenaged grandson, Dalon Gunter, is the last known family member to have seen the victim alive. Dalon last saw the victim around 5:00 p.m. on March 10, 2013. She arrived at his house alone in her red Impala. The victim dropped off some groceries, spoke with Dalon for roughly five minutes, and then left in her vehicle, again alone. Dalon was unaware of her intended destination.
Early the next morning-March 11, 2013, sometime between midnight and 1:00 a.m.-Jemmima received a text message from the victim's cell phone stating “that she [the victim] was going to Chicago to help a friend” and would be back the next night. “Chicago” was misspelled, which was unusual because the victim “was a very intelligent person.” Moreover, the victim “had no friends in the Chicago area that [Jemmima] knew of.” Suspecting that the victim was being untruthful about her whereabouts, Jemmima responded via text, accusing the victim of lying to conceal substance abuse.[1] In reply, Jemmima received another text from the victim's cell phone.
On the basis of the tone and content, Jemmima suspected the text message had not actually been sent by the victim. After Jemmima sent another message, “someone” responded, “ I'm just going to Chicago to help my friend move. I'll be back tomorrow.” The message referred to Jemmima by her nickname, “Mya, ” which was also unusual; the victim “always” called Jemmima by her first name rather than her nickname.
The next day, Jemmima received another text message from the victim's number that appeared to be intended for “someone named Mike” and that contained a request for narcotics, specifically “an eight ball and a 20 bag.” Jemmima responded, “[Y]ou sent that message to the wrong person.” The response from the victim's phone number indicated that the text had been sent to “Mike” by the victim's “friend, ” not the victim.
Daniel Hines is the victim's son and was living with her at the time of her disappearance. Hines last saw the victim on March 9, 2013. Thereafter, he noticed that her mail was accumulating, unopened. He later received a call from the victim's employer of 15 years indicating that the victim had not been reporting to work. Daniel was concerned and contacted his sister, Jemmima; it was unusual for the victim to be “missing from the house like that.” After the last time Hines saw the victim, he tried calling her several times on her cell phone. At first, “somebody would answer it” but remain silent. Later, around March 12 or March 13 of 2013, Hines called again and heard “a man's voice on the phone[.]” Hines asked, “Who is this?” The man responded, “Tiko.”
On the afternoon of March 12, 2013, a burned body was discovered in the garage of an abandoned house in Detroit. Genetic testing subsequently indicated that the body almost certainly belonged to the victim. The body was “burned pretty much beyond recognition, ” bound with some kind of wire, and laid out on a green plastic tarp, which was also burned. In places, the body was burned so severely that bone was visible. A blue “Bic lighter” was found in the driveway in front of the garage.[2] The lighter “stood out because it wasn't weathered at all.” A watch and necklace belonging to the victim were found near the body.
An “expert in fire investigation, cause and origin of a fire” subsequently determined that the fire “[o]riginated at the body.” Chemical testing and burn pattern analysis indicated that gasoline was used as an accelerant. In order to “consume bone as with a cremation, ” as this fire had, it would necessarily have been “extremely hot.”
On March 13, 2013, Dr. Lokman Sung, who is an assistant medical examiner and was qualified as “an expert in the field of anatomic and forensic pathology, ” performed an autopsy on the victim. There were “extensive burns to 100% of the body with consumption of much of the soft tissue, internal organs and fragmentation of most of the bones.” A gunshot wound was discovered, with the entry wound situated in “the left top of the head behind the ear, ” and the exit wound located in “the left forehead region.” “[T]hree fragments of a nonjacketed bullet” were “recovered from the skull.” Sung determined that the burns were postmortem and occurred after the victim was shot. There “were seven loops of copper wire wrapped around the body.” Sung was unable to determine whether the wire was wrapped around the victim before death or afterward. Toxicology testing returned positive results for four substances: (1) iron levels consistent with normal bodily function, (2) carbon monoxide, (3) carboxyhemoglobin (a byproduct of carbon monoxide), and (4) caffeine. The victim did not test positive for cocaine, marijuana, or alcohol. Had she used cocaine or marijuana on or after March 10, 2013, those substances would have been detected in the toxicology screening. The cause of death was determined to be the gunshot wound to the victim's head.
Kateesha Bouldin was a patron of Detroit's “Club Celebrity” several times in February and March 2013 and met defendant there, where he worked as security. After speaking with defendant briefly on the evening that she met him, Bouldin gave him her cell phone number. Thereafter, she began to regularly receive telephone calls and text messages from defendant that originated from his cell phone number. However, at 2:30 a.m. on March 15, 2013-several days after the victim's body was discovered-Bouldin received a telephone call from defendant that originated from the victim's cell phone number.
On March 16, 2013, Jemmima received a telephone call from defendant, who inquired whether Jemmima still[3] wanted him to paint her house. Jemmima declined. During the conversation, defendant never mentioned the victim or her vehicle, nor did he say anything about trying to return the victim's vehicle.
After speaking with her brother, Hines, on March 22, 2013, and learning that the victim “had been no call, no-show to work for all of the days since [Jemmima last] talked to her, ” Jemmima became very concerned. The victim “never misse[d] work, ” and on the rare occasions when she did, she did so with good cause after informing her employer that she would be absent. Accordingly, Jemmima went to the police station and reported the victim missing, informing the police that the victim's Impala was equipped with Onstar.
Later that same day, March 22, 2013, the victim's Impala was located outside Club Celebrity. Defendant was working as security at the club that evening. One of the managers knew him by the nickname “Tiko.” Earlier that night, Club Celebrity's deejay, Cortlant Smith- who also knew defendant as “Tiko”-had seen defendant arrive at the club alone driving the victim's Impala.
Several witnesses gave varying accounts regarding what took place at Club Celebrity on the evening of March 22, 2013. Along with her partner, Sergeant Shannon Jones of the Detroit Police Department (DPD) was dispatched to Club Celebrity after the victim's Impala was located using Onstar. The officers discovered the victim's Impala in the parking lot of Club Celebrity and, after searching it and finding no signs of “foul play, ” had it towed and impounded. Despite the location and the March weather, the vehicle's sunroof was open, which led Jones to believe that the person who had parked it was likely still nearby. The Impala was parked just two spaces from Club Celebrity's main entrance, where the security personnel-including defendant- were stationed. A leather jacket bearing defendant's DNA was recovered from the Impala's rear floor well.
According to Jemmima, after learning that the victim's Impala had been located, Jemmima, Hines, and other family members went to Club Celebrity and began asking the employees if anyone knew who had been driving the Impala. While Jemmima was at the club, a security guard handed Jemmima a phone; it was a call from defendant's number. Jemmima asked defendant why he had been driving the victim's Impala, and defendant responded that, on her way out of town to Chicago with her friend “Lori, ” the victim had stopped at defendant's house, given him the keys to the Impala, and “[t]old him to keep her car; she was going to Chicago.” When Jemmima asked, “When you called me on the 16th, why didn't you tell me then you had my mom's car?” defendant “really didn't have an answer.” Instead, he complained about the Impala, indicating “that he kept calling [the victim] trying to get her to come and get her car back because he couldn't afford to keep putting gas in it and he was tired of hiding it from his girlfriend.” After Jemmima sent a text to the victim's number indicating that Jemmima intended to call the police and report the victim as missing, she got a response that read, “I'm okay, just leave me alone.”
According to Smith (the deejay), after arriving, the police instructed Smith to make an announcement asking whether anyone present was driving an Impala. After Smith made the requested announcement, defendant “disappeared.”
According to Avria McKelvey, who is a manager at Club Celebrity and a friend of Jemmima, while the police were trying to gain access to the Impala, defendant approached and asked the police, “What are you doing by my car? What are you doing with my car?” Consistent with McKelvey's description, the victim's cousin Arbie Campbell testified that defendant approached the police who were “standing around” the Impala and spoke to them, although Campbell was unable to hear what was said. Contrastingly, however, Sergeant Jones specifically denied that anyone ever approached the officers or claimed ownership of the vehicle.
McKelvey further testified that defendant explained his possession of the Impala to Club Celebrity's staff as “a crack rental, ” i.e., he claimed that the victim was allowing defendant to “rent” her Impala in exchange for crack cocaine. According to McKelvey, defendant remained at Club Celebrity for an indeterminate period of time after the police arrived, then left abruptly on foot in the middle of his shift without receiving his nightly cash pay. To McKelvey's knowledge, defendant never returned to Club Celebrity.
Cleophus Clark, Jr., who is a manager at Club Celebrity, testified that he arrived at Club Celebrity on the evening in question while the victim's vehicle was being towed, at which time defendant approached him. Defendant informed Clark that “he gave [the victim] drugs to use her car, ” and Clark replied, “I have to call the police.” As Clark called the police, defendant left the club without collecting his nightly pay. Defendant never returned to Club Celebrity. A “cleanup man” found the victim's credit card in the Club Celebrity parking lot that evening and passed the card along to the club's owner, who in turn passed it to Clark. Eventually, the card was given to the police. Genetic testing performed on the credit card was inconclusive.
According to Campbell (victim's cousin), that same evening Campbell initiated a conversation with defendant-who called himself “Tiko”-via cell phone and text message. Campbell asked defendant “if he knew where [the victim] was, ” and defendant responded as follows:
He [defendant] told me [Campbell] that he wanted to talk, but he was scared, and he wanted to let us know. He told me that she was okay at first. He was letting me know that she was his aunt. Then he later on was trying to figure out where she was.... I told him I was her cousin. He then, after so long, just stopped replying.
During the conversation, defendant indicated that he was “the only person that [the victim] ha[d] been keeping in contact with.”
The next month, on the morning of April 10, 2013, defendant provided the following statement to the police “in his own words” regarding “the nature of his last contact with [the victim]”:
Evelyn [the victim] came to my home to bring me some beer. She met me on my street. While outside talking to [her] she asked me to keep her car for her, and after some discussion I agreed. She said that she was going to Chicago with a friend. A few moments later a lady in a Black Ford Fusion pulled up, and Evelyn got out her [sic] car and into the Fusion with the lady whom I heard her being referred to as Lori or Laura. [4] Evelyn then asked me did I know where she could get three eight balls from, and I said [, ] ‘Yes.' I then went up the street to a guy I know who sells eight balls and et cetera.
I motioned for them to drive up the street when he said that he had it. They gave me the money, and I gave it to him and got the eight balls. We then went back up the street and Evelyn showed me how to use the Onstar on her car and gave me the proof of insurance and registration. Evelyn then got back in the Fusion and drove off. I haven't seen or spoken to Evelyn since that date.
The victim's cell phone records showed “no movement outside of the state of Michigan” and likewise no movement outside the “immediate metro Detroit area[.]” Notably, however, the victim's cell phone usage changed dramatically after March 10, 2013. After that date, “there was no longer much evidence of actual outgoing phone calls, and the text messages became very minimal.” The victim's credit card statement showed purchases made in the Detroit area after the victim was last seen.[5]
Sergeant Michael McGinnis of the DPD was qualified, without objection, “as an expert in the field of historical cell phone record analysis and tower mapping.” From March 14, 2013, through March 23, 2013, there were 15 incidents when the victim's cell phone and defendant's cell phone “were communicating with the same sector, same tower within the city of Detroit.” From March 10, 2013, until March 23, 2013, there were no attempted phone calls or text messages between defendant's cell phone and the victim's cell phone. But on March 23, 2013-after the victim's Impala was located-10 separate communications took place between those phones. The last recorded communication between the victim's cell phone and a cell phone tower took place on March 23, 2013, at which time the cell phone was in communication with the tower that services the area where Club Celebrity is situated. After she disappeared, the “home tower” of the victim's cell phone (i.e., the cell phone tower most often used) changed to coincide with the “home tower” of defendant. In McGinnis's opinion, the data strongly indicated that defendant was in possession of, and used, the victim's cell phone after her death.

People v. Bass, 893 N.W.2d 140, 147-52 (Mich. Ct. App. 2016) (footnotes and brackets in original).

         After the Michigan Court of Appeals affirmed Petitioner's convictions, Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which the Court denied. People v. Bass, 901 N.W.2d ...


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