United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS , DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
J. MICHELSON UNITED STATES DISTRICT JUDGE.
a jury trial in Saginaw County Circuit Court, Mark Abraitis
was convicted of first-degree premeditated murder and a
number of firearms-related crimes for the killing of his
girlfriend. Abraitis filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
convictions on six separate grounds. For the reasons that
follow, the petition is DENIED.
Court recites the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1), see Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case involves the April 24, 2011 shooting death of
[Abraitis'] girlfriend. On the night of the incident,
[Abraitis] and his girlfriend had an argument through text
messages while the victim was at a bar with coworkers.
[Abraitis'] coworkers saw him in an agitated state, with
two guns in his car, claiming that he needed to shoot his
guns to blow off steam. The victim's friends last saw her
at the bar that night.
The next day, the victim's normally immaculate apartment
was found in disarray. Police officers found [Abraitis] in
his home with a note admitting that he had shot his
girlfriend. The victim's body was found in a rural ditch,
covered by cardboard. She had a gunshot wound to the head.
Police recovered the murder weapon and another handgun, which
were eventually determined to be stolen.
People v. Abraitis, No. 309955, 2013 WL 951134, at
*1 (Mich. Ct. App. Feb. 21, 2013).
Michigan Court of Appeals affirmed Abraitis' conviction,
id., and the Michigan Supreme Court denied his
application for leave to appeal, People v. Abraitis,
836 N.W.2d 170 (Mich. 2013) (mem.).
filed a habeas petition with this Court, which was held in
abeyance to permit him to return to the state courts to
exhaust additional claims. Abraitis v. Woods, No.
14-CV-14434, 2015 WL 1541871 (E.D. Mich. Apr. 7, 2015). This
included a post-conviction motion for relief from judgment in
the Michigan state trial court, which was denied. People
v Abraitis, No. 11-036618-FC (Saginaw Cty. Cir. Ct.,
Feb. 8, 2016). The Michigan appellate courts denied Abraitis
leave to appeal. People v. Abraitis, No. 332108
(Mich. Ct. App. Jul 25, 2016); People v. Abraitis,
888 N.W.2d 102 (Mich. 2017) (mem.).
now seeks habeas relief on six grounds: (1) there was
insufficient evidence to prove beyond a reasonable doubt that
Abraitis was guilty of first-degree premeditated murder, (2)
it was an abuse of discretion for the trial judge to admit
gruesome autopsy photographs, (3) Abraitis was denied
effective assistance of counsel, (4) his state and federal
constitutional rights were violated when the trial court
denied two motions, (5) his state and federal constitutional
rights were violated when the trial court denied him an
independent psychological evaluation and expert, and (6)
juror misconduct resulted in a structural error. (ECF No. 12,
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which governs this case,
“circumscribe[s]” the standard of review that
federal courts apply when considering an application for a
writ of habeas corpus raising constitutional claims. See
Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under the
statute, a federal court may not grant habeas relief to a
state prisoner with respect to any claim that has been
“adjudicated on the merits in State court
proceedings” unless the state-court adjudication
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States, or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
court's decision is “contrary to” clearly
established federal law “if the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).
court decision unreasonably applies federal law “if the
state court identifies the correct governing legal principle
from the Supreme Court's decisions but unreasonably
applies that principle to the facts.” Slaughter v.
Parker, 450 F.3d 224, 232 (6th Cir. 2006) (citing
Williams, 529 U.S. at 407-08). The Supreme Court has
emphasized that “‘an unreasonable application of
federal law is different from an incorrect application of
federal law.'” Harrington v. Richter, 562
U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at
410). Therefore, “[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.”
Id. (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
first argues that there was insufficient evidence of
premeditation or deliberation to support his conviction for
Michigan Court of Appeals decided this issue on direct
appeal, finding “[a] review of the entire record
reveals that there was sufficient evidence for a jury to find
premeditation.” People v. Abraitis,
2013 WL 951134, at *2. The Court of Appeals detailed the
evidence of guilt:
The prosecution presented evidence that defendant had
acquired stolen guns the day prior to the incident. On the
night of the incident, he expressed that he was so angry that
he needed to fire his weapons. The same night, the victim
received numerous nasty and belligerent texts from defendant.
The day after the incident, the victim's normally
immaculate bedroom was found in disarray. Police found the
victim in pajama-type clothing without shoes, a jacket, or
her cellphone. A rational jury could determine that defendant
forced the victim from the apartment or that she was forced
to leave in a hurry. Furthermore, defendant took the victim
to a very rural setting. Also, the victim had two contusions
on her upper chest from which the jury could infer that
defendant held her down by pressing his knees into her chest.
The evidence indicated that the gun was loosely touching the
victim's face when fired, creating a contact wound, and
that defendant shot straight down through the victim's
face and into the ground. Defendant then moved her body 100
feet into a ditch filled with water and covered her with
cardboard. This was sufficient evidence for a rational jury
to infer that defendant planned the crime. Therefore, there
was sufficient evidence for a rational jury to find beyond a
reasonable doubt that defendant's killing of the victim
Id. (internal citation omitted).
the Michigan Court of Appeals adjudicated the
sufficiency-of-the-evidence claim on the merits, §
2254(d) applies. A federal habeas court may not overturn a
state-court decision that rejects a
sufficiency-of-the-evidence claim simply because the federal
court disagrees with the state court's adjudication of
that claim. Instead, a federal court may grant habeas relief
only if the state-court decision was an objectively
unreasonable application of the Jackson v. Virginia
standard. See Cavazos v. Smith, 565 U.S. 1, 2
(2011). Under Jackson, “the relevant question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (internal citation
and footnote omitted). Thus, for a federal habeas court
reviewing a state-court conviction, “the only question
under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare
rationality.” Coleman v. Johnson, 566 U.S.
650, 656 (2012). A state court's determination that the
evidence does not fall below that threshold is entitled to
“considerable deference under AEDPA.”
convict a defendant of first-degree murder in Michigan, the
state must prove that a defendant's intentional killing
of another was deliberate and premeditated. See Scott v.
Elo, 302 F.3d 598, 602 (6th Cir. 2002) (citing
People v. Schollaert, 486 N.W.2d 312, 318 (Mich. Ct.
App. 1992)). The elements of premeditation and deliberation
may be inferred from the circumstances surrounding the
killing. See Johnson v. Hofbauer, 159 F.Supp.2d 582,
596 (E.D. Mich. 2001) (citing People v. Anderson,
531 N.W.2d 780, 786 (Mich. Ct. App. 1995)). Premeditation may
be established through evidence of the following factors: (1)
the prior relationship of the parties, (2) the
defendant's actions before the killing, (3) the
circumstances of the killing itself, and (4) the
defendant's conduct after the homicide. Cyars v.
Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004);
Anderson, 531 N.W.2d at 786.
the minimum time required under Michigan law to premeditate
“is incapable of exact determination, the interval
between initial thought and ultimate action should be long
enough to afford a reasonable man time to subject the nature
of his response to a ‘second look.'”
Williams v. Jones, 231 F.Supp.2d 586,
594-95 (E.D. Mich. 2002) (quoting People v. Vail,
227 N.W.2d 535, 538 (Mich. 1975)). “[A]n opportunity
for a ‘second look' may occur in a matter of
seconds, minutes, or hours, depending upon the totality of
the circumstances surrounding the killing.”
Johnson, 159 F.Supp.2d at 596 (quoting People v.
Berthiaume, 229 N.W.2d 497, 500 (1975)). Premeditation
and deliberation may be inferred from the type of weapon
used, the location of the wounds inflicted, and
circumstantial evidence. See People v. Berry, 497
N.W.2d 202, 204 (Mich. Ct. App. 1993); Johnson, 159
F.Supp.2d at 596 (citing People v. Turner, 233
N.W.2d 617, 619 (Mich. Ct. App. 1975)); DeLisle v.
Rivers, 161 F.3d 370, 389 (6th Cir. 1998).
it was reasonable for the Michigan Court of Appeals to
conclude that there was sufficient evidence for a rational
trier of fact to find that Abraitis acted with premeditation
and deliberation when he shot the victim. The evidence
established that Abraitis had been engaged in an argument
with the victim on the evening of the shooting. Evidence that
Abraitis had a prior dispute with the victim supports a
reasonable inference that the subsequent shooting was
premeditated. See Scott, 302 F.3d at 603. The
evidence also showed that Abraitis shot the victim in the
head at close range. Under Michigan law, premeditation may be
logically inferred from wounds inflicted on vital parts of
the victim's body. See Lundberg v. Buchkoe, 338
F.2d 62, 69 (6th Cir. 1964). Evidence that the victim was
shot in the head at close range supports a finding of
premeditation and deliberation. See Thomas v. McKee,
571 Fed.Appx. 403, 407 (6th Cir. 2014); Crenshaw v.
Renico, 261 F.Supp.2d 826, 833 (E.D. Mich. 2003).
Evidence that Abraitis moved the victim's body to a more
secluded area following the shooting in an attempt to hide it
also supports an inference of premeditation and deliberation.
See People v. Johnson, 597 N.W.2d 73, 79 (Mich.
1999). Abraitis fled the scene afterwards, which also
supports a finding of premeditation. See, e.g.,
Marsack v. Howes, 300 F.Supp.2d 483, 492 (E.D. Mich.
2004). The fact that Abraitis did not attempt to seek medical
help for the victim after the shooting could also lead a
rational trier of fact to conclude that Abraitis acted with
premeditation and deliberation when he killed the victim.
See Delisle, 161 F.3d at 389 (finding that
circumstantial evidence of premeditation was established by
petitioner's failure to help victims after car was driven
Court cannot say that the Michigan Court of Appeals'
rejection of Abraitis' insufficiency of evidence claim
resulted in a decision that was contrary to, or involved an
unreasonable application of, Jackson. See Durr
v. Mitchell, 487 F.3d 423, 448 (6th Cir. 2007);
Titus v. Jackson, 452 Fed.Appx. 647, 650 (6th Cir.
2011). So Abraitis is not entitled to relief on his first
next contends that his right to a fair trial was violated by
the admission of two autopsy photographs, which he claims
were “gruesome” and unduly prejudicial. This
claim was considered and rejected by the Michigan Court of
Appeals. See Abraitis, 2013 WL 951134, at *2.
federal court is limited in federal habeas review to deciding
whether a state court conviction violates the Constitution,
laws, or treaties of the United States. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). It is “not the
province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Id.
Thus, errors in the application of state law, especially
rulings regarding the admissibility of evidence, are usually
not questioned by a federal habeas court. See Seymour v.
Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(“Generally, state-court evidentiary rulings cannot
rise to the level of due process violations unless they
‘offend[ ] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.'” (quoting Montana v.
Egelhoff, 518 U.S. 37, 43 (1996))).
Michigan Court of Appeals reviewed the trial court's
decision to admit the photographs for a clear abuse of
discretion. Abraitis, 2013 WL 951134, at *2. The
Court of Appeals found, “Despite any gruesomeness, the
photographs were admitted for a proper purpose.”
Id. (citing People v. Unger, 749 N.W.2d
272, 303 (Mich. Ct. App. 2008)). The photographs were used to
“establish that defendant was on top of the plaintiff,
holding her down with his knees, when he held the gun to her
face and shot straight through her head.” Id.
claim that the trial court erred in admitting photographs of
the murder victim fails to state a claim upon which habeas
relief can be granted. See, e.g., Franklin v.
Bradshaw, 695 F.3d 439, 456-57 (6th Cir. 2012) (holding
that state court's determination that petitioner's
right to fair trial was not denied by admission of 18
gruesome autopsy photographs of his victims that were shown
to jurors on large projector screen during trial was not
contrary to clearly established federal law). In particular,
the introduction of graphic or gruesome photographs of a
murder victim does not entitle Abraitis to habeas relief
where there is some legitimate evidentiary purpose for the
photographs' admission. See, e.g., Biros v.
Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (upholding the
admission of photographs depicting a victim's severed
head, severed breast, and severed body parts placed near the
victim's torso because the photos were highly probative
of the prosecutor's claim that the petitioner beat the
victim severely and meticulously dissected her body);
Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir.
2003) (finding acceptable the admission of multiple
photographs of the victim used by the coroner to illustrate
the nature of the encounter preceding the victim's
death); Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir.
2002) (observing that “although the photographs were
gruesome, they were highly probative”).
trial court's decision to admit the autopsy photographs
cannot be said to “offend[ ] some principle of justice
so rooted in the traditions and conscience of our people as
to be ranked as fundamental.” Egelhoff, 518
U.S. at 43. As the Michigan Court of Appeals held, the
autopsy photographs were highly probative in determining
Abraitis' intent and showing that Abraitis acted with
premeditation. Because the photographs served a proper
evidentiary purpose, ...