Bell v. Berghuis

• Decision Date: 15 January 2014
• Docket Number: Civil No. 2:11-CV-10004
• Parties: TYRONE ANTHONY BELL, #240434, Petitioner, v. MARY BERGHUIS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

TYRONE ANTHONY BELL, #240434, Petitioner, v. MARY BERGHUIS, Respondent.

Civil No. 2:11-CV-10004

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: January 15, 2014

HONORABLE NANCY G. EDMUNDS

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

Tyrone Anthony Bell, ("petitioner"), presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for second-degree murder, M.C.L.A. 750.317, felon in possession of a firearm, M.C.L.A. 750.224f, felony-firearm, second offense, M.C.L.A. 750.227b, and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offenses following a bench trial in the Wayne County Circuit Court. Petitioner's convictions stem from the murder of his girlfriend, Lachon (aka Cheri) Smith, who was shot in the face with a shotgun. Her body was found in an alley in Detroit. The victim picked up her daughter after work from her mother's house atapproximately 2:20 a.m. on Saturday, August 2nd. (T 8/29/05, 36-40) Her mother was the last person to see the victim alive. Between 3:00 and 4:00 a.m. John Davis and Trina Harper were near the alley where the victim was later found and heard a shotgun fired. (T 8/29/05, 102-103, 167; T 8/30/05, 17-18) Moments later, they saw a blue Explorer with gray trim on the bottom speed away from the alley. (T 8/29/05, 101-102, 110-112, 147-160, 182-190; T 8/30/05, 9-13, 16, 37-42, 48-49, 56, 63-67, 71-73) Their descriptions of the vehicle matched the vehicle driven by petitioner. (T 8/30/05, 141-146, 153-154; T 8/31/05, 38; T 9/1/05, 102-103) Lachon's cousin and housemate, Keith Dumas, found the victim's 5 year old daughter alone in the house when he awakened Saturday morning. The victim had never before left her daughter unattended. (T 8/31/05, 49-51) Lachon's purse, keys, and cell phone were also missing, but her car was parked in its usual spot outside. The doors to the house were locked from the outside, and only Dumas and the victim had keys to the residence. (T 8/29/05, 59-60; T 8/31/05, 50-52, 60-63, 76-77, 86-88) When the victim was found in the alley later Saturday morning, she was wearing the same clothing she wore when she had picked up her daughter from her mother's house. (T 8/29/05, 62, 85-87, 95; T 8/30/05, 88-90; T 9/1/05, 158)

Petitioner had been paroled from prison, having been convicted of serious assaultive and firearms offenses. From Betty Smith, Dumas, Minter, and Lancaster, the police knew that petitioner and the victim had dated in high school and began dating again in early June, 2003, after petitioner was released from prison. (T 8/30/05, 152-153, 218; T 8/31/05, 31-32, 33-36, 63-64, 77-79) Petitioner came to the victim's house almost daily, and when the victim's work shift changed to nights in mid-July, petitioner would come by the house when the victim returned from work and would be there when Dumas awakened to go towork at 3:00 or 4:00 a.m. (T 8/30/05, 156-157, 167-174, 202-203; T 8/31/05, 36, 39-41, 82-83)

Petitioner lied to Betty Smith about when he had last seen the victim. (T 8/29/05, 54-59, 77, 80, 95-96; T 8/31/05, 46-48, 66-77) Petitioner failed to respond to Dumas' calls, did not assist in searching for the victim, and exhibited no concern for the fact that the victim was missing in the days between the murder and Monday, when the victim's body was identified. (T 8/29/05, 62; T 8/31/05) Dumas went to petitioner's workplace several times on Tuesday, Wednesday, and Thursday after the victim's body was found, but petitioner's vehicle was not there. (T 8/31/05, 69-72)

Charles Minter testified that he frequently saw petitioner at the victim's home. When Minter saw a shotgun and a handgun in petitioner's vehicle approximately three weeks prior to the murder, petitioner informed him, "I need these guns for when people roll up on me.." (T 8/30/05, 153-166) Minter testified that the victim had been unhappy with petitioner because he had stood her up and she caught him seeing another woman. Minter testified that the victim was contemplating ending her relationship with petitioner. Minter also recounted an incident when she and a male friend encountered petitioner and this friend and petitioner almost got into a fist fight. (T 8/30/05, 160-162, 179-181, 196-197; T 8/31/05, 19-24, 84-85, 88)

Records of calls for the cell phones of the victim and petitioner were admitted and examined by the trial court. Petitioner spoke with the victim in the hours before she was murdered, and although he claimed otherwise in a note, petitioner did not call the victim's cell phone or her house after the early morning hours of Saturday, even though her body was not identified until Monday. (T 8/30/05, 4-7)

Police officers contacted petitioner's parole officer and advised her that they would be arresting petitioner when he appeared for his appointment on August 7, 2003. (T 9/1/05, 97-100) Following petitioner's arrest, his vehicle was seized and gunshot residue was recovered from it. (T 9/28/05, 49-58, 61-62, 84-88, 95-99).

Petitioner's conviction was affirmed on appeal. People v. Bell, No. 266277, 2007 WL 1429682, *1 (Mich. Ct. App. May 15, 2007); lv. den. 480 Mich. 951; 741 N.W. 2d 339 (2007).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court denied [Petitioner] his constitutional right to be free from unreasonable search and seizure when it declined to suppress evidence seized with a defective search warrant under circumstances where the good faith exception to the warrant requirement was inapplicable.

II. [Petitioner] was denied his constitutional right to due process and a fair trial when the finding of guilt was supported by either inaccurate or inadmissible evidence. Counsel was ineffective for failing to object to the prosecution's misrepresentation of evidence and/or facts not in evidence.

III. The prosecutor committed misconduct by allowing Charles Minter to give perjured testimony which she knew to be false, and without correction. The prosecution's misrepresentation of evidence and facts not in evidence denied [Petitioner] the right to a fair trial and incited the passion of the judge and prejudiced the court's judgment.

IV. [Petitioner] was denied the right to present his defense which coerced him into [waiving] his constitutional right to a jury trial and [counsel] was absen[t] at a crucial stage of his trial.

V. [Petitioner] was wrongfully sentenced to 75-to-125 years. This is longer than [Petitioner's] life expectancy.

VI. [Petitioner] was absent counsel at a crucial stage, when counsel failed to file crucial motions.

VII. When [Petitioner] was arrested without probable cause, the fruits of that arrest were unconstitutionally seized and should have been suppress[ed] consistent with the protections of the Fourth Amendment of the United StatesConstitution.

VIII. The trial court abused its discretion when it denied [Petitioner's] pretrial motion to suppress evidence obtained as the result of the execution of a search warrant that was deficient because the application for that warrant was not legally sufficient of its face.

IX. [Petitioner's] arrest was illegal and any evidence seized thereafter should be deemed fruits of the poisonous tree and should have been excluded from the evidence at his trial.

X. [Petitioner's] constitutional right to due process of law was violated when he was held more than 80 hours before being taken by a magistrate and formally charged.

XI. [Petitioner's] Sixth Amendment right to confront his accusers was violated when the officer who allegedly found evidence at his residence did not appear to testify.

XII. The trial court committed reversible error when it denied [Petitioner's] motion for directed verdict.

XIII. Ineffective assistance of counsel.

XIV. The trial court committed reversible error when it denied DNA testing of blood samples from remaining fingernail clippings taken from the body of the complainant.

XV. [Petitioner] was denied his constitutional right to due process when the preliminary court abused its discretion by denying his timely motion for dismissal pursuant to People v. Weston, 413 Mich. 371 (1982).

XVI. The court plainly erred when it denied [Petitioner] a fair and impartial preliminary examination when it used inadmissible evidence to make its judgment for bindover.

XVII. Joseph Shulman was ineffective in his duties at, before, and after preliminary examination.

XVIII. The cumulative effect of the violations at both the preliminary examination and before, during and after trial, denied [Petitioner] his constitutional right and as a result [Petitioner] was wrongfully bound over and convicted of second-degree murder.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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.

A decision of a state court 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...