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Bluew v. Woods

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

September 16, 2019

KENNETH TWYMAN BLUEW #856253, Petitioner,
v.
JEFFREY WOODS, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Michigan prisoner Kenneth Bluew (“Petitioner”) filed this habeas corpus petition under 28 U.S.C. § 2254. Petitioner was convicted of first-degree premeditated murder, M.C.L. § 750.316(1)(a), assault of a pregnant individual with intent to cause miscarriage or stillbirth, M.C.L. § 750.90a, and two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b. He raises five claims for habeas corpus relief. For the reasons explained below, these claims lack merit, and the court will deny the petition.

         II. BACKGROUND

         Petitioner was a Buena Vista Township police officer at the time of the murder of Jennifer Webb on August 30, 2011. Webb was 8-1/2 months pregnant with Petitioner's child when she was murdered. It was the prosecution's theory that Petitioner choked Webb and staged the scene to make it appear that she hanged herself. The defense argued that Webb committed suicide by hanging. Overwhelming evidence supported the prosecution's theory of the case.

         Webb visited her friend Andrea King on the evening of August 30, 2011. King testified that Webb was very excited about her baby, and she told King that Petitioner was the father. Webb planned to put Petitioner's name on the baby's birth certificate and to seek assistance from the Friend of the Court. Webb left King's home at approximately 8:30 p.m., telling King that she was going to see “Baby Daddy.” (ECF No. 4-11, PageID.799.)

         Petitioner was on duty the night of Webb's murder. For approximately 30 minutes that evening-from 10:00 p.m. to 10:30 p.m.-Petitioner failed to respond to multiple attempts to contact him via his police radio, patrol car computer, and cell phone. Buena Vista police officer Tim Patterson testified that his shift commenced at 10:00 p.m. and that shortly thereafter, he heard central dispatch performing radio checks. (ECF No. 4-11, PageID.814-815.) Officer Patterson explained that if central dispatch has not heard from an officer during a given hour, central dispatch conducts a department radio check to confirm the officer's safety. (ECF No. 4-11, PageID.815.) Petitioner did not respond to the first hourly check. (ECF No. 4-11, PageID.815.) Petitioner then failed to respond to a 10:20 p.m. radio check from central dispatch. Officer Sara Sylvester also attempted to contact Petitioner by cell phone but was not successful. (ECF No. 4-11, PageID.815.) Additionally, central dispatch could not reach Petitioner on the Buena Vista administrative channel. After these failed attempts at contact, Officer Patterson sent Petitioner a text message via the patrol car's computer, which would have either flashed or sounded an alarm, and central dispatch sent another alert tone to Petitioner's patrol car. (ECF No. 4-11, PageID.815-817.) After all of these attempts at contact, Officer Patterson finally heard Petitioner attempt to call Officer Sylvester on the administrative channel after 10:30 p.m. (ECF No. 4-11, PageID.818.) Petitioner then contacted dispatch and informed them, but he did not specify his location.

         Officer Patterson drove around in the general area he knew Petitioner would be patrolling. As Officer Patterson drove near the Van Buren Waste Water Treatment Facility, he saw Petitioner's patrol car, with its spotlight shining on another vehicle, a Pontiac Aztec. (ECF No. 4-11, PageID.819.) Petitioner exited his vehicle, walked to meet Officer Patterson, and asked: “[h]ow do you want to do this?” (ECF No. 4-11, PageID.820-821.) Officer Patterson interpreted this question as Petitioner inquiring how to approach the vehicle. He noticed that Petitioner was “sweating bullets, like he had just got out of the shower, ” despite the fact that the weather was cool that evening. (ECF No. 4-11, PageID.820-821.)

         Officer Patterson approached the vehicle on the passenger side, Petitioner on the driver's side. As they approached, Petitioner said, “there's a body”, and began backpedaling from the vehicle. (ECF No. 4-11, PageID.822.) Officer Patterson moved to the driver's side of the vehicle and saw an electric cord hanging from the roof rack. He then realized a body with something tied to the neck was hanging from the vehicle into the ditch. Officer Patterson considered the scene to be a suicide and notified central dispatch. (ECF No. 4-11, PageID.822.)

         Officer Patterson found Petitioner's behavior that evening unusual. During his tenure as an officer, Petitioner encountered many gruesome crime and accident scenes. But despite this experience, Petitioner appeared nervous and uneasy while at the scene. That night, Officer Patterson noticed that Petitioner had a red spot in his eye. Several other events indicative of Petitioner's guilt unfolded that evening.

         Webb's purse was removed from the vehicle. Inside her purse were a typewritten suicide note, a driver's license, and a cell phone. (ECF No. 4-11, PageID.823-824.) Petitioner retrieved the note and held in on the hood of the Aztec with his ungloved left index finger. Petitioner waited about 20 minutes to tell Officer Patterson that he knew the victim. (ECF No. 4-11, PageID.825.) Additionally, Detective Sergeant Waterman checked Webb's cell phone log and saw recent calls from a “Ken Cop Boo” whose number matched Petitioner's. (ECF No. 4-11, PageID.825-826.) When Officer Patterson returned to the police station to write his reports, he noticed Petitioner's eye- which had previously been red-was turning black and blue. (ECF No. 4-12, PageID.863.) He also noticed that Petitioner took his laundry bag to his truck, a departure from his usual practice of sending uniforms to the department's laundry service at the end of his shift. (ECF No. 4-12, PageID.861-862.)

         At trial, witness testimony further corroborated the circumstantial evidence of Petitioner's guilt. Officer Patterson testified that Petitioner was certified as an instructor in pressure point control tactics (PPCT). (ECF No. 4-11, PageID.814.) He described PPCT as a means to control someone with your bare hands without harming them.

         Dr. Kanu Virani, an expert in forensic pathology, testified that he performed the autopsy and that he found no injury or bleeding inside Webb's neck, which he would have expected to find if Webb's death had been caused by hanging. (ECF No. 4-20, PageID.1317-1318.) Based upon his autopsy findings and information provided by police investigators and other outside sources, Dr. Virani concluded that the cause of Webb's death was neck compression and listed the manner of death as homicide. (ECF No. 4-20, PageID.1321-1322.) Dr. Virani testified that his autopsy findings were also consistent with ligature having caused the death. (ECF No. 4-20, PageID.1330.)

         Buena Vista police officer Sara Sylvester testified that she worked the 12:00 p.m. to 12:00 a.m. shift on August 30, 2011. She testified that she shared a pizza with Petitioner around 7:30 p.m. that evening and that she did not notice any red mark around Petitioner's eye at that time. (ECF No. 4-12, PageID.880.)

         Detective Sergeant Sean Waterman testified that he responded to a phone call from Officer Patterson regarding a possible suicide on the evening of August 30, 2011, near the intersection of North Outer Drive and Hack Road. (ECF No. 4-13, PageID.929.) When he arrived at the scene, Detective Waterman reviewed the victim's cell phone and saw two phone calls from Webb to Petitioner that evening (8:28 p.m. and 8:43 p.m.), and one call from Petitioner to Webb (8:48 p.m.). (ECF No. 4-13, PageID.931-932.)

         On August 31, 2011, at 1:00 a.m., Detective Waterman notified Webb's family of her death. Her parents did not believe that she was suicidal. They explained that she was excited to be having a baby and showed Detective Waterman all of the preparations she had made for the baby. (ECF No. 4-13, PageID.936.) They identified Petitioner as the father of her baby. According to Detective Waterman, Webb told her parents she was going to meet Petitioner earlier that evening to discuss the Friend of the Court issue. Detective Waterman contacted Police Chief Brian Booker after speaking with Webb's parents, and Chief Booker told Detective Waterman to contact the Michigan State Police. (ECF No. 4-13, PageID.936-937.)

         Several witnesses, including Webb's obstetrician, testified that Webb was excited about having a baby and did not appear depressed. Several witnesses also testified that Webb identified Petitioner as the father of her baby.

         Colleen Auer-Lemke, an expert in forensic computer analysis, examined Petitioner's home computer and found that several searches had been performed during the summer of 2011 concerning suicide, painless ways to commit suicide, and hanging. (ECF No. 4-15, PageID.1084, 1094-1096.) She also found several searches from August 2011 regarding ways to die from carotid artery compression and how long such a death would take. (ECF No. 4-15, PageID.1100.)

         Lisa Ramos testified as an expert in DNA analysis. (ECF No. 4-17, PageID.1212.) She conducted a paternity test and determined that Petitioner was the father of Webb's baby. She also tested blood collected from Webb's clothing and from inside and outside of Webb's vehicle and found that they matched Petitioner's DNA profile. ECF No. 4-17, PageID.1222.) Additionally, a swab from Webb's fingernails showed a mixture of Petitioner's and Webb's DNA profiles. (ECF No. 4-17, PageID.1221.)

         Following a jury trial in Saginaw County Circuit Court, Petitioner was convicted of first-degree premeditated murder, assault of a pregnant individual with intent to cause miscarriage or stillbirth, and two counts of felony firearm possession. The court sentenced him to life in prison without parole for the first-degree murder conviction, 65 to 100 years for the assault conviction, and 2 years for each felony-firearm conviction.

         Petitioner filed an appeal of right in the Michigan Court of Appeals raising seven claims for relief. The Michigan Court of Appeals affirmed his convictions, but remanded to the trial court for “articulation of the justification for the sentencing departure for the assault conviction or resentencing.” People v. Bluew, No. 313397, 2014 WL 3928790, *1 (Mich. Ct. App. Aug. 12, 2014). On remand, the trial court resentenced Petitioner on the assault conviction to 225 months to 40 years in prison. Petitioner sought and was denied leave to appeal in the Michigan Supreme Court. People v. Bluew, 497 Mich. 972 (Mich. 2015).

         Petitioner then filed the pending habeas petition, raising these claims:

I. The Michigan Court of Appeals' determination that petitioner's attorney was not ineffective was an unreasonable application of Supreme Court law where the prosecution's expert testified that the victim died of a chokehold, and petitioner's attorney failed to call an expert to testify that her death could not have been caused by a chokehold.
II. The Michigan Court of Appeals' determination that petitioner's attorney was not ineffective was an unreasonable application of Supreme Court law where the attorney failed to present an expert in forensic pathology to testify that the autopsy findings established the victim's death was caused by hanging, and not by chokehold.
III. The Michigan Court of Appeals unreasonably applied Supreme Court law when it found no error in the trial court's denial of petitioner's challenges for cause and the subsequent seating of a biased juror.
IV. When Petitioner was left with a biased juror in his venire, the Michigan Court of Appeals unreasonably applied Supreme Court law when it found no abuse of discretion in the trial court's denial of ...

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