Altoonian v. Warren, Civil No. 5:08-CV-11189

• Decision Date: 25 March 2015
• Docket Number: Civil No. 5:08-CV-11189
• Parties: DONNA J. ALTOONIAN, Petitioner, v. MILLICENT WARREN, Respondent
• Court: U.S. District Court — Eastern District of Michigan

DONNA J. ALTOONIAN, Petitioner, v. MILLICENT WARREN, Respondent

Civil No. 5:08-CV-11189

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 25, 2015

HONORABLE JOHN CORBETT O'MEARA UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Donna Altoonian, ("Petitioner"), confined at the Huron Valley Women's Complex in Ypsilanti, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her pro se application, petitioner challenges her convictions for two counts of first-degree murder, M.C.L.A. 750.316; and one count of felony-firearm, M.C.L.A. 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court. This Court recites verbatim 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 (6^th Cir. 2009):

I. Basic Facts And Procedural History

A. Overview

Altoonian's convictions arise from the November 2001 shooting deaths of her two children. Altoonian and her identical twin four-year-old sons lived with her father, Don Altoonian, in Dearborn, Michigan. On November 14, 2001, Don Altoonian returned from an out-of-state business trip and expected Altoonian to meet him at the airport. Because Altoonian was not at the airport and did not answer the telephone, Don Altoonian took a taxicab home, arriving at approximately 5:30 p.m. Altoonian's vehicle was in the driveway, and the house was locked, but the mailbox was full.

Don Altoonian went inside and discovered Altoonian lying on the floor of the bedroom that she shared with her two children. There was a bunk bed in the corner of the small bedroom. Altoonian was lying on the floor, with her back against the bed. Altoonian suffered from Meniere's disease, a congenital ear imbalance resulting in vertigo, so Don Altoonian assumed that she had an attack. He asked Altoonian where the children were, and she said that she did not know. He turned on the light and opened the curtains; at that point, he saw one of the children in the lower bunk of the bunk bed. The child was cold and apparently dead. Don Altoonian then called the police. Don Altoonian did not realize that Altoonian was injured until emergency personnel told him that she had been shot. There were no signs of forced entry or theft.

One of the twins was found on the left side of the bed, with a pillow over his face. He was shot twice in the upper body, roughly front to back. The other twin was found on the right side of the bed. He was shot twice in the back, back to front, and once in the right arm. The boys' wounds were inflicted from close range. In addition, Altoonian had been shot in the neck.

In January 2002, Altoonian was found incompetent to stand trial. She was hospitalized and received treatment. In July 2003, Altoonian was declared competent to stand trial. Altoonian was thereafter tried in October 2003.

B. Ballistics

The investigating officer, Dearborn Police Sergeant Karen Wisniewski, testified on behalf of the prosecution. Sergeant Wisniewski testified that a bullet casing was found under a pillow on the left side of the bed. There were two holes in the plaster wall, just below the mattress and two spent bullets on the carpeting, directly under the holes. There was one hole in the sheet and the mattress pad next to one of the strike marks, but no damage to the mattressnext to the other. The appearance of the strike marks, that is, clean margins at the top and more damaged margins at the bottom, indicated that the bullet was traveling downward when it struck the wall. The marks were consistent with the shots being fired from the center of the bed.

On the right side of the bed, there were holes in the sheet and in the top and the right side of the mattress and a strike mark on the inside of the right rail. A spent bullet was found at that location, stuck on the bed rail and the sheets. A second spent bullet was found on the floor, under the front right side of the bed. These marks were consistent with a weapon being fired from the center of the bed, outward. Casings are ejected up and out, and usually remain near where the weapon was fired. Sergeant Wisniewski opined that if a person were shooting from outside the bed, the casings would likely be on the floor. In this case, there were several casings found on the bed.

There was a hole and powder marks in one of the pillows. An examiner from the Michigan State Police firearms identification unit testified that the hole and powder marks in the pillow indicated that a gun was fired from close range. A spent bullet was found inside another pillow.

Sergeant Wisniewski further testified that a hole was found in the center of the mattress, in the middle of a bloodstain, through the sheet and the mattress pad, and a bullet was found loose inside the mattress. The alignment of the holes was consistent with a weapon being discharged directly downward. DNA testing revealed that Altoonian's blood matched the blood found in the center of the bed.

Altoonian's 45-millimeter Colt, semi-automatic handgun was found wedged between the bottom bunk bed mattress and the left wall, on top of a cold air return. The gun case was found at the foot of the bed, on the floor. A box of ammunition was found under the bed, approximately a foot from the gun case. All the bullets and spent casings found at the scene were fired by Altoonian's weapon. There were no fingerprints found on the weapon.

Altoonian's gun uses a cartridge that is loaded with bullets and inserted into the magazine. As it is a semi-automatic, it ejects cartridges to the right after each shot. There was no ammunition in Altoonian's gun, but there was a spent casing that failed to eject, jammed in the slide. A firearms expert testified that if a weapon were fired with a weak or improper grip, there would not be enough pressure exerted on the slide, and the casing will not eject properly, as was seen on Altoonian's gun.

There was no gunshot residue found around the wound holes of Altoonian's sweatshirt, but the sweatshirt was not tested for gun residue on the wrist cuffs, where the hands would be. Altoonian was not tested for gun residue because she not initially considered a suspect. Further, the fact that the sweatshirt was bloody could have resulted in a false positive.

The officer in charge of the case concluded from all the evidence that the shooter had to have been in the bed, between the two children.

Former state police trooper David Balash testified for the defense as an expert in the areas of firearm identification, bullet trajectory, crime scene analysis, and blood spatter analysis. Balash believed that if the shooter had been in the bed with the children there would be a concentration of spent casings and gunpowder residue in that area, and there was neither. Balash believed that the position of the casings indicated that the gun was fired from the foot of the bed or from the open right hand side.

Balash believed that there was no hole in the center of the mattress, contrary to the police reports. Instead, he indicated that a bullet had ricocheted off the wall and into the mattress. However, he later conceded that he did not know that spent bullets were found on the floor under each of the wall strike marks. He then agreed that there was a slit in the center of the mattress, but maintained that it was not made by a bullet. He testified that there were no holes in the sheets at the center of the bed, but conceded there were tears at that location that may have been caused by a bullet, including some on the mattress pad.

Balash believed that bullets being fired perpendicular to the wall made the marks on the walls. He later conceded, however, that to hit the wall perpendicularly, the bullet would have had to go through the mattress, but there was no hole in the mattress at that location.

Balash believed that a bullet traveling downward, at a 45-degree angle made the mark on the right side rail. However, he later agreed that, to create the angle he identified on the right side rail, the shooter would have had to shoot through the dust ruffle at the foot of the bed "or you would have to be on the bed."

C. The Handwritten Notes

After the incident, while Altoonian was still hospitalized, Shelly Taylor wentto the Altoonian home to help pack up the boys' belongings. Taylor and Altoonian had an on-and-off intimate relationship for 10 or 12 years, and lived together for three or four years.

In the attic, Taylor found two notes handwritten by Altoonian. Taylor turned the notes over to Don Altoonian, who gave them to the police. The two notes were found together and, therefore, the prosecutor theorized that they were written at about the same time. One of the notes, a multipage list, referred to Altoonian's broken taillight, which Don Altoonian stated had been broken for no more than six or seven months. The other note, a sort of poem, stated:

If this is the life I was born to lead, why did you allow me to live, let alone breed. Now I am responsible for 2 more lives. You have made me stay no matter what [sic] for me lies.

I no longer have an easy way out, there are too many people depending on me for me to cop out. Why did you not let me die, while I lie in utereto [sic], upside down. When I lay on the table and walk to the light, why did you drag me back to this place? Nothing has changed, yet all is different, all new set of challenges, some quite significant.

I beg of you, my Lady, to take me out of all this heat, to a place that is shady. I only wish to depart this life, and bring with me my children, for that is all the good I've done.

Don Altoonian did not know when this poem was

...