Stineback v. Campbell

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          Hon. Nancy G. Edmunds, United States District Judge

         Terry Stineback, (“Petitioner”), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Cass Circuit Court of second degree murder, Mich. Comp. Laws § 750.317, assault with intent to commit murder, Mich. Comp. Laws § 750.383, and commission of a felony with a firearm. Mich. Comp. Laws § 750.227b. Petitioner was sentenced to an effective controlling term of 22 to 42 years' imprisonment.

         The petition raises six claims: (1) Petitioner's rights under the Confrontation Clause were violated when his minor daughter testified against him via closed-circuit television; (2) insufficient evidence was presented at trial to disprove Petitioner's self-defense claim; (3) insufficient evidence was presented to prove that Petitioner committed assault with intent to commit murder; and (4) the prosecutor committed misconduct by commenting on Petitioner's post-arrest silence. The Court will deny the petition because Petitioner's claims are without merit. The Court will also deny Petitioner a certificate of appealability and deny permission to appeal in forma pauperis.

         I. Background

         Petitioner was originally charged with first-degree murder, assault with intent to commit murder, and commission of a felony with a firearm in connection with the shooting death of his wife.

         Testimony admitted at trial indicated that Petitioner was fed-up his wife continually calling and texting him since she had been off work on medical leave. He expressed his exasperation to coworkers on the date of the shooting. On the night of the shooting, Petitioner drank at a bar after work and then returned home. Testimony from one of the bar patrons indicated that Petitioner was upset at the victim, and he showed him his cell phone which showed that she tried to call Petitioner over twenty times while he was at the bar.

         Upon arriving home, Petitioner and the victim exchanged loud words in the kitchen. This prompted their nine-year-old daughter, JL, to come downstairs. JL testified via closed-circuit television that when she went into the kitchen she saw Petitioner on top of her mother choking her. After repeated attempts, she was finally able to push Petitioner off her mother. JL and her mother ran upstairs. JL guided her mother into the master bedroom where JL hoped she would call 9-1-1. Instead, Petitioner followed the victim inside the bedroom and locked the door behind him. JL then heard loud arguing for a few minutes as she paced back and forth in front of the bedroom door.

         JL heard several loud bangs, and the house suddenly fell silent. She then heard Petitioner on the phone with 9-1-1. Petitioner admitted to the 9-1-1 operator that he shot the victim. Eventually, Petitioner emerged from the bedroom and told JL to go outside, where she was met be emergency responders.

         The forensic evidence indicated that the victim had been shot three times. One shot, which entered her left arm pit and traveled diagonally through her body, was likely fired while the victim had her left arm extended from a position lower than Petitioner. The other two gunshots entered the victims' back. The victim was found lying in a fetal position next to her bed. The angle of the shots to the back suggested that those two shots were also filed while she was positioned lower than Petitioner. No. weapon was found near the victim. Petitioner's handgun, with which he admitted to shooting the victim, was found lying on the bed. Other firearms were found in the house.

         Petitioner testified in his own defense that he shot the victim because he thought she was reaching for her handgun when they were arguing in the bedroom. Petitioner explained that because the room was only lit by a television it was difficult to see whether the victim was armed, but he thought she was. Petitioner testified that after he fired the first shot, he thought the victim continued to move towards him, so he fired twice more.

         The jury rejected the defense and found Petitioner guilty of second-degree murder, assault with intent to commit murder (for the conduct in the kitchen), and felony-firearm. Following sentencing, Petitioner was appointed appellate counsel who filed a claim of appeal. Appellate counsel filed a brief on appeal raising four claims:

I. Must Mr. Stineback's convictions be vacated because his rights under the Confrontation Clause were violated when a witness (not a complainant), who did not see the actual shooting, was allowed to testify outside the courtroom and outside the presence of Mr. Stineback, which also violated MCR 6.006?

II. Can Mr. Stineback be guilty of second-degree murder when there is insufficient evidence to support such a conviction when Mr. Stineback was acting in lawful self-defense?

III. Can Mr. Stineback be guilty of assault with intent to murder when there is insufficient evidence to support such a conviction?

IV. Did prosecutorial misconduct deny Mr. Stineback a fair trial and shifted the burden as the prosecution commented on Mr. Stineback's “13 months of not talking or telling anybody what happened”?

         The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. People v. Stineback, 2017 WL 5616125 (Mich. Ct. App. Nov. 21, 2017). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied the application by standard form order. People v. Stineback, 910 N.W.2d 273 (Mich. 2018) (Table).

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “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).

         “[T]he ‘unreasonable application' prong of the statute permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's ...