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
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
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.
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.
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
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).
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.
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,
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.
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).
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.
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
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.
Standard of Review
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).
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).
Sufficiency of the Evidence
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.
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.