Rembish v. Hoffner

          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 PAUPERIS

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Petitioner Steven Joseph Rembish has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. The pleading challenges Petitioner's convictions for first-degree murder, conspiracy to commit first-degree murder, and several weapon charges. Petitioner alleges as grounds for relief that (1) there was insufficient evidence at trial to support his convictions, (2) he was denied his right to effective assistance of counsel on appeal, (3) his right not to be placed in double jeopardy was violated by multiple counts rising from the same episode, and (4) he was deprived of the presumption of innocence by being shackled during trial. Respondent Bonita Hoffner argues through counsel that: the state court's ruling on Petitioner's first claim was not an extreme malfunction; there was no violation of double jeopardy jurisprudence; the shackling claim lacks merit; and the claim about appellate counsel fails because the two claims not raised on direct appeal lack merit. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         Petitioner was charged with the following crimes in Saginaw County, Michigan: first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a); conspiracy to commit first-degree murder, Mich. Comp. Laws §§ 750.157a and 750.316(1); discharge of a firearm at a dwelling or occupied structure, Mich. Comp. Laws § 750.234b; discharge of a firearm from a vehicle, Mich. Comp. Laws § 750.234a; carrying a weapon with unlawful intent, Mich. Comp. Laws § 750.226; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and six counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.224b. The charges arose from the fatal shooting of Dawn Ricklefs at the Corner Lounge in Saginaw, Michigan on February 19, 2011.

         Petitioner was tried jointly with his co-defendant, Roberto Rodea, in Saginaw County Circuit Court. The Michigan Court of Appeals accurately summarized the evidence at trial as follows:

[A] number of witnesses testified that defendants Rembish and Rodea were involved in a fight at the Corner Lounge after they and others went to the location to celebrate a birthday. After the fight, the two were ejected from the bar. Witnesses heard Rodea stating that he had lost some cocaine, and the witnesses testified that both he and Rembish threatened to return and “shoot up” or “spray” the bar. The two drove away in Rembish's car-a light blue 1986 Oldsmobile Calais-that Sean Rembish had purchased a week before. Witnesses then testified that, between 15 and 40 minutes after the fight ended, the Corner Lounge was struck by multiple bullets. Between 8 and 14 individuals were inside at the time, including Dawn Ricklefs. She was struck by two of the bullets, in the chest and in the shoulder, and died as a result of her injuries. Another patron was grazed in the head. A witness stated that, after the shooting, he went outside where he saw a car drive away from the bar with its headlights turned off. The car's taillights matched that of the photographs of Rembish's car. Still other witnesses testified that other shots were fired at approximately 1:15 a.m. at the Maple Gardens Bar, which was located near the Corner Lounge.

Sean Berg testified that he had a conversation with Rembish on Saturday, February 19, 2011. Rembish told Berg that he had just taken his car to “the farm” because he knew the police were looking for it. Rembish also told Berg that he had taken his gun out to the swamp and disposed of it.^[1] Rembish told him that he planned to wait for the police to arrive and asked Berg to take care of Rembish's family. At approximately the same time, Berg received a call from Rodea, who told him that Rodea had “messed up, ” asked Berg to take care of Rodea's children, and stated that he was probably going away for the rest of his life. Rodea told Berg about the fight, that he had lost some cocaine at the bar, and that Rodea was “mad” and wanted to go back and get into a fight.

Rembish's girlfriend (Danielle Kuebler) testified that, prior to the shooting, Rembish had hidden a handgun, later matched to the type used in the shooting, in the fireplace of their home. Kuebler stated that at approximately 12:00 a.m., Rembish woke her up when he returned to the home. He came to the bedroom but, because she was mad at him for staying out late, she told him to leave. She then heard the fireplace open. She thought that Rembish remained out in the living room, but admitted that she did not know where Rembish was for approximately an hour to an hour and a half, when he eventually returned to the bedroom. Danielle Kuebler also testified that, after the police had begun questioning others, she witnessed Rembish smash his cell phone in the driveway. He later wrote her a letter apologizing for putting her through stress, which she took to mean the stress of having her home searched. She was also questioned concerning whether Rembish had admitted that he had been involved in the shootings, and she stated that Rembish's story kept changing, but that he admitted involvement in the fight.

Detective Fink testified that he had analyzed the phone records of Berg, Rodea, and Rembish. Among the evidence presented was the finding that calls were made from Rembish and Rodea's phones in the vicinity of the Maple Gardens bar shortly after the 911 call reporting the shooting was placed. In addition to the phone evidence, witness testimony tied Rembish to a handgun model previously in his possession that had a very high probability of being the same model used in the shooting. Testimony placed the same car model as Rembish's at the scene of the Corner Lounge shooting.

Motive for the crime . . . was shown in the loss, or theft, of Rodea's cocaine and in being ejected from the bar. And testimony that Rembish told Rodea after the fight, “if you don't get your stuff back everybody in this bar is going down, I mean everybody, ” provides evidence of a specific intent to return and harm people, and also provides evidence of the agreement necessary to support the conspiracy conviction. Similarly, witnesses heard Rodea directly exclaim that he planned to come back and spray the bar with bullets. Witnesses further stated that they believed he intended to make good on his threat. Contrary to Rodea's claim that he had no idea that the Maple Gardens bar even existed, phone records placed both his and Rembish's phones at the bar very shortly after the 911 call from the Maple Gardens shooting was made at 1:22 a.m.

People v. Rembish, No. 308916, 2015 WL 122703, at *9 -*10 (Mich. Ct. App. Jan. 8, 2015) (unpublished) (footnote in original as note 4).

         The prosecutor's theory was that Petitioner probably was driving the car used in the shooting and that he either fired the gun or aided and abetted Rodeo in shooting and killing the victim. Petitioner did not testify or present any witnesses. His defense was that there was no physical evidence, such as a weapon, DNA, fingerprints, or gunshot residue, linking him to the shooting, and that nobody had alleged he was the shooter. 1/11/12 Trial Tr. at 130-31, ECF No. 8-8, PageID. 571-72. He also maintained that Sean Berg was not credible and that there was insufficient evidence to convict him of aiding and abetting a homicide. Id. at 141-44, 150-51, Page Id. 574-577.

         Rodea testified in his own defense. He admitted to being present at the Corner Lounge during the fight, but he claimed that he, Petitioner, Josh Kollman, and David Nietzelt left the bar after the fight and that he was at Petitioner's home, recovering from his intoxication, at the time of the shooting. Rodea acknowledged the witnesses' testimony about the threat he supposedly made at the Corner Lounge. He nevertheless claimed that he was drunk and angry at the time and that people say things they do not mean when they are drunk and angry. He also testified that, when he, Petitioner, Kollman, and Nietzelt left the Corner Lounge, Kollman was driving because Kollman was the only one who had a license. Id. at 39-56, 61-62, 69-71, 77-78, PageID. 549-554, 556-58.

         On January 12, 2012, the jury found Petitioner guilty, as charged, of all twelve counts against him. On February 16, 2012, the trial court sentenced Petitioner to concurrent terms of: life imprisonment for the murder and conspiracy; four to eight years in prison for the two counts of discharging a firearm; fifty-seven months to ten years for carrying a weapon with unlawful intent; and five to ten years for being a felon in possession of a firearm. The court also sentenced Petitioner to two years in prison for each of the six counts of possessing a firearm during the commission of a felony, with credit for 350 days. The trial court ordered the felony-firearm sentences to run concurrently with each other, but before the other sentences. 2/16/12 Sentence Tr. at 3-5, ECF No. 8-10, PageID. 636-638.

         Petitioner appealed as of right, claiming that there was insufficient that he participated in the shooting and that, if the Court of Appeals disagreed, the evidence established second-degree murder, not first-degree, premeditated murder. The Michigan Court of Appeals rejected Petitioner's claim and affirmed his convictions in a per curiam opinion. See Rembish, 2015 WL 122703, at *9 - *10. Petitioner raised the same issue in the Michigan Supreme Court, which denied leave to appeal on March 3, 2015, because it was not persuaded to review the issue. See People v. Rembish, 497 Mich. 972; 859 N.W.2d 696 (2015).

         In a subsequent motion for relief from judgment, Petitioner raised claims about his appellate counsel, the Double Jeopardy Clause, the admission of gruesome post-autopsy photographs, his shackling at trial, and the felony complaint. The state trial court denied the motion on the merits. See Op. and Order of the Court, People v. Remblish (sic), No. 11-035679 FC 4 (Saginaw Cty. Cir. Ct. July 10, 2015), ECF No. 8-14, PageID. 872-874.

         Petitioner appealed the trial court's decision without success. The Michigan Court of Appeals denied leave to appeal because Petitioner “failed to establish that the trial court erred in denying his motion for relief from judgment.” People v. Rembish, No. 329957 (Mich. Ct. App. Feb. 24, 2016) (unpublished). The Michigan Supreme Court denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Rembish, 500 Mich. 896; 887 N.W.2d 191 (2016).

         Finally, on February 23, 2017, Petitioner filed his habeas corpus petition. Included in the petition are a request for appointment of counsel and an evidentiary hearing. Pet., ECF No. 1, PageID. 10.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Wilson v. Sellers, 138 S.Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. Thus, “[o]nly an ‘objectively unreasonable' mistake, one ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,' slips through the needle's eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir. 2019) (internal and end citations omitted), cert. denied, __ S.Ct.__, No. 19-419, 2019 WL 5301304 (U.S. Oct. 21, 2019). A state-court's determination of factual issues, moreover, is presumed to be correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Analysis

         A. Sufficiency of the Evidence

         Petitioner alleges that there was no evidence supporting the prosecution's theory that he participated in the shooting. He points out that no one identified him as the shooter or as a participant in the shooting. He also alleges that, even if he did participate in the shooting, the facts supported a verdict of second-degree murder, not first-degree, premeditated murder, because the prosecution failed to prove the specific intent to kill the victim.

         The Michigan Court of Appeals adjudicated Petitioner's claim on direct appeal and found no merit in it. The Court of Appeals stated that the evidence was sufficient to prove the elements of first-degree murder, either as a principal or as an aider and abettor, and to show the agreement necessary for the conspiracy conviction. The Court of Appeals also stated that there was enough circumstantial evidence to show that Petitioner had at least joint control of the gun to support his felony-firearm convictions. Rembish, 2015 WL 122703, at *10.

         1. Clearly ...