Alder v. Bury

Decision Date22 January 2003
Docket NumberNo. CIV. 01-CV-40289-FL.,CIV. 01-CV-40289-FL.
Citation240 F.Supp.2d 651
PartiesMatthew ALDER, # 246180, Petitioner, v. Sherry BURT, Respondent,
CourtU.S. District Court — Eastern District of Michigan

Matthew Alder, Jackson, MI, pro se.

Brenda E. Turner, Janet Van Cleve, Michigan Dept. of Atty. Gen., Habeas Corpus Div., Lansing, MI, for Sherry Burt.


GADOLA, District Judge.

I. Introduction

Matthew Alder, ("Petitioner"), presently confined at the State Prison of Southern Michigan in Jackson, Michigan, seeks the issuance of the writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, Petitioner challenges the legality of his conviction after a jury trial in the Macomb County Circuit Court of one count of first degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a), and one count of first degree felony murder, Mich. Comp. Laws § 750.316(1)(b). Petitioner was sentenced to life imprisonment without possibility of parole for these crimes. Petitioner raises claims of (1) insufficient evidence to support his murder convictions, (2) insufficient evidence to support the charges filed in the trial court and presented to the jury, (3) improper jury instructions concerning the law of aiding and abetting, (4) prosecutorial misconduct, (5) ineffective assistance of trial counsel, (6) ineffective assistance of appellate counsel, and (7) denial of his right of confrontation. The Court concludes for the following reasons that the petition must be denied.

II. Factual Background

Petitioner was convicted of murdering a nineteen-year-old woman named Lisa Gipson shortly after he picked her up at a bar and forced her to perform fellatio upon him. Petitioner doused her body with gasoline and burned it after she was dead.

The Michigan Court of Appeals summarized the evidence of Petitioner's guilt and decided his sufficiency of the evidence claim as follows:

[D]efendant argues that there was insufficient evidence from which the jury could determine beyond a reasonable doubt that he was guilty of first-degree premeditated murder. We disagree.

When reviewing a ruling on a motion for directed verdict, we must consider the evidence presented by the prosecutor up to the time the motion was made and determine whether a rational trier of fact could find proven beyond a reasonable doubt the essential elements of the charged crime. People v. Daniels, 192 MichApp. 658, 665, 482 N.W.2d 176 (1991). To establish first-degree murder, the prosecution must prove that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Schollaert, 194 MichApp. 158, 170, 486 N.W.2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a second look. Id. The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing and 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. Id. Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove the elements of a crime. Id.; People v. McKenzie, 206 Mich.App. 425, 428, 522 N.W.2d 661 (1994). Moreover, M.C.L. § 767.39; MSA 28.979, provides:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense. Aiding and abetting describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime. People v. Turner, 213 Mich.App. 558, 568, 540 N.W.2d 728 (1995). An aider and abettor's state of mind may be inferred from all the facts and circumstances. Id. Factors that may be considered include a close association between the defendant and the principal, the defendant's participation in the planning or execution of the crime, and evidence of flight after the crime. Id. at 569, 540 N.W.2d 728. To sustain an aiding and abetting charge, the guilt of the principal must be shown. Id. The evidence indicates that the victim willingly left a bar with defendant and Christopher Tull. Once the three arrived at defendant's house, Alan Klakulak awoke and watched while laying on a couch. Klakulak testified that defendant pulled the victim into his bedroom by grabbing her arm and waist, while she said "no" approximately three times. While defendant, Tull, and the victim were in the bedroom, Klakulak heard defendant tell the victim how powerful he was and heard him order her to perform fellatio or he would "bash [her] head in." Later, Klakulak saw defendant and the victim enter the bathroom, where the victim appeared to be on her hands and knees and rocking back and forth. Defendant, the victim, and Tull returned to the bedroom. Defendant subsequently went outside and returned with a paper bag in his hand. Klakulak then saw the three leave the bedroom. A paper bag covered the victim's head. Defendant and Tull had the victim by her arms and guided her out of the house.

Klakulak heard defendant open and close the garage door before he left with Tull and the victim. Another witness saw defendant begin to get in the pickup truck, then go back, after which he heard a clinking noise that sounded like metal hitting metal. The witness then saw defendant pulling his hand out of the bed of the pickup truck as if he had just put something there. A short time later, defendant filled a container with gasoline at an Amoco station near his house. The victim was then driven to a building approximately seven miles away where her body was burned. An autopsy revealed that the victim was killed by a gag that had been forced down her throat. When defendant was apprehended, he had first- and second-degree burns on his right hand, wrist and leg. From this evidence we conclude that the jury could reasonably have found that defendant either intentionally killed the victim himself or aided and abetted Tull in killing her and that the killing was premeditated and deliberate. Although defendant claims that Tull killed the victim without defendant's knowledge while he was asleep in the truck, the jury was entitled to weigh defendant's credibility and disbelieve him. People v. Daniels, 172 Mich.App. 374, 378, 431 N.W.2d 846 (1988). Therefore, we find that there was sufficient evidence from which a rational jury could determine beyond a reasonable doubt that defendant committed first-degree premeditated murder.

People v. Alder, No. 191597, 1997 WL 33344156 at *l-2 (Mich.Ct.App. July 29, 1997) (per curiam).

III. Procedural History

Petitioner was convicted of first degree murder and felony murder after a jury trial. Petitioner was sentenced to mandatory life imprisonment without possibility of parole.

Petitioner appealed his conviction as of right to the Michigan Court of Appeals, raising claims of insufficient evidence, improper allowance of the first degree murder charges to go to the jury, improper jury instructions regarding aiding and abetting, prosecutorial misconduct, ineffective assistance of trial counsel, and double jeopardy.

The Michigan Court of Appeals vacated Petitioner's felony murder conviction on double jeopardy grounds and denied his other claims, affirming his first degree murder conviction and remanding his case to the trial court for re-sentencing on his first degree premeditated murder conviction only. Id. at *3-4. Petitioner sought leave to appeal in the Michigan Supreme Court which was denied. People v. Alder, 457 Mich. 881, 586 N.W.2d 923 (1998).

Petitioner next filed a petition for the writ of habeas corpus in the Eastern District of Michigan on August 3, 1998. Petitioner then moved for a stay, claiming that he had additional unexhausted claims he wished to present to the Michigan state courts. On September 9, 1998, the Court dismissed the petition without prejudice for failure to exhaust state court remedies. Alder v. Curtis, No. 98-73321, Docket Entry 6 (E.D.Mich. Sept. 9, 1998) (Edmunds, J.).

Petitioner next filed a motion for relief from judgment, raising claims of ineffective assistance of trial counsel, denial of the right of confrontation and cross-examination, and ineffective assistance of appellate counsel. The trial court denied the motion after considering the merits of Petitioner's claims. People v. Alder, No. 94-2369, (Mich. Cir. Ct. Macomb County Dec. 18, 1998). Petitioner sought leave to appeal this decision to the Michigan Court of Appeals which denied leave to appeal because Petitioner failed to establish entitlement to relief under Mich. Ct. R. 6.508(D). People v. Alder, No. 223486 (Mich.Ct.App. July 11, 2000). On January 30, 2001, the Michigan Supreme Court denied leave to appeal for the same reason. People v. Alder, 463 Mich. 963, 622 N.W.2d 791 (2001).

On or about October 17, 2001, Petitioner filed the present petition for the writ of habeas corpus, raising the following claims for relief:

I. Petitioner's first degree murder convictions are supported by insufficient evidence.

II. The trial court improperly allowed Petitioner's first degree murder charges to go to the jury for its consideration and verdict.1

III. Petitioner was denied due process of law when the trial judge improperly instructed the jury on the law of aiding and abetting.2

IV. Petitioner was denied a fair trial by prosecutorial misconduct.

V. Petitioner was denied the effective assistance of appellate counsel, showing cause for Petitioner's failure to present claims first raised in his motion for relief from judgment in...

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