Anderson v. Burt

• Decision Date: 31 August 2018
• Docket Number: Case No. 1:14-cv-169
• Parties: DMITRI ANDERSON, Petitioner, v. SHERRY BURT, Respondent.
• Court: U.S. District Court — Western District of Michigan

DMITRI ANDERSON, Petitioner, v. SHERRY BURT, Respondent.

Case No. 1:14-cv-169

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 31, 2018

Honorable Gordon J. Quist

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Dmitri Anderson is incarcerated with the Michigan Department of Corrections at the Ionia Correctional Facility (ICF) in Ionia, Michigan. Following a jury trial in the Ottawa County Circuit Court, Petitioner was convicted of two counts of first-degree murder, Mich. Comp. Laws § 750.316, and one count of armed robbery, Mich. Comp. Laws § 750.529. Petitioner was convicted of first-degree murder on both theories presented by the prosecutor—premeditation and felony murder—as to both counts. On March 23, 2009, the court sentenced Petitioner to life imprisonment without eligibility for parole on the murder convictions and 37 years, 6 months to 56 years, 3 months for the armed robbery conviction.

On February 14, 2014, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing system on February 14, 2014. (Pet., ECF No. 1, PageID.14.)

The petition identifies four grounds for relief, paraphrased as follows:

I. Unfair trial, violation of due process. Judge allowed the prosecutor to use a home invasion that was not connected to Petitioner in any way at Petitioner's murder trial. This was done to connect Petitioner to a gun. The prosecutor used testimony known to be perjured.

II. Prosecutorial misconduct. When detectives contacted my alibi witness and paid him to change his testimony to what detectives wanted him to say. The prosecutor withheld exculpatory evidence that was revealed in the presentence investigation report.

III. Insufficient evidence. Nothing but speculation. Nothing places Petitioner at this crime. No witness places Petitioner at this crime on the day of the crime.

IV. Ineffective assistance of counsel, trial and appellate. Counsel did not prepare for trial and did not call witness Petitioner requested to be present.

(Pet., ECF No. 1, PageID.6-10.) Respondent has filed an answer to the petition (ECF No. 8) stating that the grounds should be denied because they are meritless or relief is barred by Petitioner's procedural default. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are without merit or relief and is barred by the doctrine of procedural default. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual Allegations

At about 3:30 p.m., on July 2, 2008, Stephani Czadzeck returned from running errands to her job at her father's business, R&K Jewelry on Washington Street in Grand Haven, Michigan. (Trial Tr. II, ECF No. 9-13, PageID.719-803.) She found her father, Robert Karell, on the floor of his office in the back of the store. (Id., PageID.759-760) The safe in his office had been ransacked. (Id., PageID.765-775.) Robert Karell and an R&K customer, Lewis Paparella, had been shot in the back of the head. (Id., PageID.692-693, 704-705.) Both were dead. (Trial Tr. I, ECF No. 9-12, PageID.640.) The robbery likely occurred between approximately 3:00 and3:30 p.m. that day. (Id., PageID.664-667; Trial Tr. II, ECF No. 9-13, PageID.756.) There were no witnesses.

The investigators went to work. They matched a fingerprint on a cigar box found in the office to Darick Anderson, Petitioner's brother. (Trial Tr. II, ECF No. 9-13, PageID.853.) The investigation progressed. Searches at Darick Anderson's house turned up items taken from R&K. (Id., PageID.859-863.) They also turned up rolls of coins that had been taken in a home invasion a couple of days before the R&K robbery. (Id.; see also PageID.898-905.) A Ruger 22 was stolen at the same time those coins were taken. (Id.) A Ruger 22 could have fired the bullets and casings found at R&K. (Trial Tr. II, ECF No. 9-13, PageID.820-821.)

Because Petitioner's brother had been identified as a suspect, investigators also questioned Petitioner in a series of interviews. (Trial Tr. III, ECF No. 9-14, PageID.1115.) Eventually, Petitioner disclosed that he had seen Darick in the evening on July 2 with lots of cash, a black box (one of the items taken from the safe), and a magazine from a handgun. (Trial Tr. IV, ECF No. 9-17, PageID.1230-1268.) Petitioner even told the police where Darick had disposed of the magazine. (Trial Tr. III, ECF No. 9-14, PageID.1026.) The magazine was no longer there, but police identified a maintenance worker who had seen and relocated the magazine. (Id., PageID.1026-1030.) Petitioner also pointed police in the direction of a home where Petitioner thought Darick might have hidden the gun. (Trial Tr. IV, ECF No. 9-17, PageID.1244-1245.) Police eventually found the gun buried in the backyard at that home. (Id.)

Petitioner essentially acknowledged that his brother participated in the R&K robbery. Petitioner just claimed he did not participate himself. Investigators worked to pin down Petitioner's location at the time of the robbery. Based on cell phone records and the testimony of Petitioner's wife and brother-in-law, investigators were able to put Petitioner at Darick's house atsome time after 2:00 p.m. on July 2. (Trial Tr. III, ECF No. 9-14, PageID.1000-1018, 1069-1112; Trial Tr. IV, ECF No. 9-17, PageID.1272-1291, 1305-1309.) At about that time, Petitioner's cell phone and Darick's cell phone became inactive for about eighty minutes, as if they had been turned off. (Trial Tr. III, ECF No. 9-14, PageID.1102-1105.) That window of time would have been enough to travel to Grand Haven and commit the murders and robbery.

Although Petitioner denied involvement in the robbery during his interviews with the police, he was more forthcoming with fellow inmates in county and state facilities where he was detained. Two of Petitioner's former fellow inmates testified that Petitioner had confessed his involvement to them. (Trial Tr. Excerpt-Testimony of Anthony Wright, ECF No. 9-15; Trial Tr. Excerpt-Testimony of Darnell Brown, ECF No. 9-16.)

With the wealth of evidence against Darick, the circumstantial evidence placing Petitioner with Darick, and Petitioner's own jailhouse confessions, the jury heard enough to convict Petitioner of first-degree murder and armed robbery. (Trial Tr. V, ECF No. 9-18, PageID.1524-1526.)

Although not directly relevant to Petitioner's conviction or this petition, Darick Anderson was tried and convicted of the same charges two months after Petitioner. People v. Anderson, No. 292072, 2010 WL 3984801 (Mich. Ct. App. Oct. 12, 2010). Darick testified at his trial. Id. at *1. During his testimony, Darick admitted he buried the Ruger, he also admitted being present during the robbery, but he denied shooting the victims. Id. He refused to identify who else may have committed the crime or shot the victims and insisted that his brother was innocent.

Petitioner, with the assistance of counsel, directly appealed his convictions. He raised one issue:

I. The evidence was insufficient to prove Petitioner was present at the scene of the crimes.

Petitioner, dissatisfied with his appointed counsel, also filed a Standard 4 brief. Michigan Supreme Court Administrative Order 2004-6 sets forth minimum standards for indigent criminal appellate defense services, including the following:

Standard 4

When a defendant insists that a particular claim or claims be raised on appeal against the advice of counsel, counsel shall inform the defendant of the right to present the claim or claims in propria persona. Defendant's filing shall consist of one brief filed with or without an appropriate accompanying motion. Counsel shall also provide such procedural advice and clerical assistance as may be required to conform the defendant's filing for acceptability to the court. The defendant's filing in propria persona must be received by the Court of Appeals within 84 days after the appellant's brief is filed by the attorney. . . .

Mich. Admin. Order No. 2004-6. Petitioner's Standard 4 brief raised several new issues, paraphrased as follows:

II. Should the court appoint substitute appellate counsel due to a breakdown in the attorney-client relationship.

III. Petitioner was denied due process and a fair trial because the police and prosecutor focused their investigation seeking and gathering questionable evidence and overlooking competent evidence despite ethical requirements to the contrary.

IV. Petitioner was denied effective assistance of trial counsel due to multifaceted errors and omissions, including counsel's failure to investigate so as to learn that the prosecutor tended to withhold exculpatory evidence; counsel's failure to pursue leads provided by Petitioner; counsel's failure to "pose probative questions to skillfully unmask bias" and to "weigh the highly questionable evidence more carefully"; counsel's failure to seek a change of venue; counsel failed to seek discovery regarding Michigan State Police Crime Lab reports that disclosed biological material at the crime scene did not match Petitioner; counsel's failure to object to "Darick said" hearsay testimony; counsel's failure to discover a deal offered to witness David Jewel; counsel failed to call witnesses or effectively examine witnesses regarding Petitioner's whereabouts on the date of the crime; and counsel's failure to call R&K customers to confirm the time on their receipt which altered the robbery timeline.

V. Petitioner was denied due process and a fair trial by the suppression or non-use of known exculpatory DNA evidence that does not match him, and would plausibly lead to the identity of a perpetrator or perpetrators.

VI. Substantive due process urges

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