Burgess v. Booker, 040913 FED6, 10-2633

Docket Nº:10-2633
Opinion Judge:Rose, District Judge.
Party Name:ARTHUR BURGESS, Petitioner-Appellant, v. RAYMOND BOOKER, Respondent-Appellee.
Judge Panel:Before: MOORE and COLE, Circuit Judges; and ROSE, District Judge. KAREN NELSON MOORE, Circuit Judge, concurring in the judgment.
Case Date:April 09, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ARTHUR BURGESS, Petitioner-Appellant,

v.

RAYMOND BOOKER, Respondent-Appellee.

No. 10-2633

United States Court of Appeals, Sixth Circuit

April 9, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: MOORE and COLE, Circuit Judges; and ROSE, District Judge. [*]

OPINION

Rose, District Judge.

Petitioner-Appellant Arthur Burgess appeals the denial of his petition for a writ of habeas corpus challenging his conviction for the murder of three individuals in Dearborn, Michigan. Petitioner-Appellant asserts that the writ should issue because his constitutional rights under Brady v. Maryland, 451 U.S. 477 (1981) were violated, because his constitutional rights under Strickland v. Washington, 466 U.S. 688 (1984) were violated, and because his rights under Evitts v. Lucey, 469 U.S. 387 (1985) were violated. The panel will AFFIRM the dismissal of the petition, as neither Petitioner's rights under Brady v. Maryland, 451 U.S. 83 (1967), nor those under Strickand v. Washington, 466 U.S. 668 (1984) and Evitts v. Lucey, 469 U.S. 387 (1985) were violated.

I. JURISDICTION

The district court exercised jurisdiction under 28 U.S.C. § 2254. This Court has jurisdiction over final orders pursuant to 28 U.S.C. § 1291 and additionally over issues certified under 28 U.S.C. § 2253(c).

II. STANDARD OF REVIEW

Section 2254(d) imposes the following standard of review in a habeas case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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.

Id. § 2254(d).

A 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, 413 (2000). A decision involves an "unreasonable application" of clearly established 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 of the prisoner's case." Id.

III. FACTS AND PROCEDURE

Arthur Burgess was found guilty of the April 14, 1974 murders of his romantic rival and dishonest narcotic supplier Leslie Kinsman, as well as Kinsman's landlord, Victor Bossio, and Kinsman's bodyguard, James Ketelaar in Kinsman's apartment in Dearborn, Michigan. His conviction was supported by the testimony of two men: Scott Allan Croydon and Claude Johnson. Burgess now posits that another man present at the murder scene, Roman Poronczuk, committed the murder and that the testimony supporting his conviction was fabricated.

Kinsman lived with Mary, his wife of nine months, and their three-month-old son. Mary testified that on April 12, 1974 she heard someone enter the side door to the house, which led jointly to the two residences in the house, the Kinsmans' upstairs apartment and the landlord Bossio's abode in the basement. A few minutes after Mary heard the entrance, Bossio came up the stairs, knocked on the kitchen door, and stated that he wanted to see Leslie in the basement. Leslie Kinsman went to the basement alone.

Shortly thereafter Mary heard three shots from the basement. She started for the kitchen with Ketelaar, the bodyguard, ahead of her. She heard someone running up the stairs. Ketelaar stepped into the open door and shouted "what the hell is going on." Mary then heard another shot and saw Ketelaar fall backwards. Mary heard the outer door slam and a car start and speed away.

Mary yelled downstairs for Leslie with no response. When she walked down the stairs and into Victor Bossio's apartment she saw Bossio lying on the floor with his face covered with blood. She ran up the stairs and called Oakwood Hospital. She was told to call the police. Shortly thereafter, she called some friends who called the police. The police arrived within minutes.

Upon arrival, the Dearborn police officers discovered the bodies of Leslie Kinsman and Victor Bossio in the basement, and the body of Jim Ketelaar in the dining room. The officers preserved the scene for State Police Crime Lab experts. In their cursory review of the crime scene, they observed a house guest of the Kinsman's, Roman Poronczuk, who claimed to be showering during the shooting, had wet hair and the shower appeared to have been recently used. Poronczuk admitted that he took some heroin when he arrived at the house and said that he knew Leslie Kinsman was involved in drug trafficking.

A Michigan State Police technician determined that the trajectory of the single bullet fired upstairs passed through Ketelaar, which was consistent with Mary Kinsman's description of the events. The technician also testified that the blood stains found in the basement, the stairs leading from the basement, and the outside door knob were consistent with the blood types of Victor Bossio and Leslie Kinsman. The state police technical witness testified that bullet fragments found at the scene were consistent with having been fired from a .38 caliber pistol. The latent fingerprint expert testified that no fingerprints matching Burgess's were found at the scene.

Mary Kinsman testified that she first met Burgess in February 1972 in New Orleans. She stayed with him and his wife for five months before the trio moved to Las Vegas. During that same period of time and continuing for several months, Mary testified, she had sexual relations with Burgess, who was going to leave his wife for Mary.

In the fall of 1972, Mary met Leslie Kinsman and ended her affair with Burgess. The next time she had contact with him was at the funeral home after Leslie Kinsman was killed. She next saw Burgess at a restaurant in Ohio in the fall of 1974. She was staying in Ohio with her parents when Burgess called her. He said he was no longer with his wife and wanted Mary to return to Detroit with him. Mary complied and further agreed when Burgess refused to allow her to mention Leslie's name during their conversation.

Two witnesses implicated Burgess in the Dearborn triple murders: Scott Allan Croydon and Claude Johnson. Croydon refused to testify, so the trial court allowed his preliminary examination testimony to be read to the jury. He said that he had first met Burgess around March 25, 1976, nearly two years after the Dearborn triple murder. Croydon testified that on several occasions, Burgess told him that Claude Johnson knew too much information about a triple murder that Burgess had committed in Dearborn in 1974 and that Johnson was spreading that information. Croydon testified that Burgess told him one of the people he killed was named Kinsman, and he killed him because Kinsman was "messing around with his old lady and crossed him up on some deals—business deals, dope deals." Burgess also told Croydon that he killed two other innocent people, one being the landlord. Croydon testified that "he had to take them out because they were witnesses." According to Croydon, Burgess explained that he shot and stabbed the people, then left in a car and later asked Claude Johnson to pick him up at another location to get rid of the guns.

Croydon also testified about Burgess's efforts to eliminate Claude Johnson. Croydon said that on April 12, 1976, Burgess's son, Gerald Hessel, and he went to Burgess's apartment in Roseville because Burgess planned to go to Johnson's house to kill him. At the apartment, Hessel called Claude Johnson, telling him that he and Croydon wanted to come over to buy some marijuana from Johnson.

Croydon said Burgess took a .45 caliber automatic pistol and gave Hessel and Croydon each a hunting knife, telling them that these were the knives he used during the Dearborn murders. The three drove to Johnson's house in two cars. Burgess gave Hessel the pistol and waited in one of the cars while Hessel and Croydon went to get Johnson. Hessel, Johnson, and Croydon went to Johnson's car, supposedly to purchase the marijuana. When they got to the car, Hessel pulled the gun and ordered Johnson to Burgess's car, threatening to rob Johnson. Johnson protested, saying that he would give Hessel and Croydon anything but that they did not have to rob him.

Johnson testified that he was forced into a car with Burgess and Hessel; Hessel drove, with Johnson and Burgess in the back seat. Croydon was ordered to follow them in the car, allowing him to observe some of the events that transpired. In the first car, Burgess questioned Johnson about being an informant, about money he owed him, and about a letter from the state police from his prison file. Burgess accused Johnson of being an informant and stated, "This ain't for nothing you've done. It's for what you could do." Johnson testified that he tried to escape as the car turned down a dead end street. Before he could leap from the car, however, Burgess and Hessel both stabbed him.

Johnson exited the car and ran approximately 50 feet, but he stopped because he was bleeding profusely. He said Burgess walked up to him, asked him if he wanted to go to the hospital, and then shot him repeatedly. Hessel and Croydon picked...

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