Boes v. Warren

• Decision Date: 03 October 2013
• Docket Number: Civil No. 2:09-CV-12279
• Parties: KAREN SUE BOES, Petitioner, v. MILLICENT WARREN, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

KAREN SUE BOES, Petitioner, v. MILLICENT WARREN, Respondent,

Civil No. 2:09-CV-12279

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 3, 2013

HONORABLE PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS

CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL

IN FORMA PAUPERIS

Karen Sue Boes, ("Petitioner"), confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her application, filed through her counsel Mark A. Satawa and Stuart G. Friedman, petitioner challenges her conviction for for first-degree felony murder, M.C.L.A. 750.316. For the reasons stated below, the Court will DENY the petition for writ of habeas corpus.

I. BACKGROUND

Petitioner was convicted by a jury in Ottawa County Circuit Court of first-degree felony murder. Petitioner has provided a detailed statement of facts in her brief in support of the petition for writ of habeas corpus. Respondent has likewise provided a detailed factual summary of the case, which does not essentially conflict with petitioner's statement of facts. The Court will therefore accept the factual allegations contained within the habeas petition insofar as they are consistent with the record, because the respondent has not disputed them. See Cristini v.McKee, 526 F. 3d 888, 894, n. 1 (6^th Cir. 2008)("When a state's return to a habeas corpus petition fails to dispute the factual allegations contained within the habeas petition, it essentially admits these allegations"). Because the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Therefore, only a brief overview of the facts is required. See Nevers v. Killinger, 990 F. Supp. 844, 847 (E.D. Mich. 1997). Accordingly, 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):

Defendant's conviction arises from the death of her fourteen-year-old daughter, who died of smoke inhalation from a fire at their home. At trial, the prosecution presented evidence that the fire was fueled by an accelerant, such as gasoline; that it started in the hallway outside the victim's bedroom; and that the victim could not have started the fire and then retreated back into the bedroom where she died.

In the instant case, the two expert witnesses presented by the prosecution agreed that the fire started in the hallway, rather than the victim's bedroom, and that the fire was necessarily fueled by an accelerant. They explained their positions in detail and specifically testified that the fire was not accidental. Although no evidence of an accelerant was discovered in the hallway, all of the expert witnesses, including one presented by defendant, acknowledged that a fire might consume all traces of an accelerant. All of the experts searched for accidental causes of the fire, but none were found.

With regard to defendant's responsibility for the fire, the evidence indicated that only defendant and the victim were in the house at the relevant time. Defendant told witnesses that the victim was sleeping when she left the house at 8:55 a.m. and that she had entered the victim's bedroom and kissed her goodbye before leaving. A passerby who noticed the fire called 911 five minutes later. Several weeks before the fire, defendant told her husband that a gas can, which was ultimately found in the victim's bedroom, was missing. Traces of gasoline were found on a chair in the master bedroom that defendant occupied by herself. Moreover, the evidence showed that gasoline was poured around the victim's bedroom and an accelerant was used in the hallway outside the room, where the fire started. One of plaintiff's experts testified that the victim could not have started the fire in the hallway and retreatedback into her room.

Furthermore, during police interviews and when speaking to her husband, defendant stated that she "could have" started the fire. She told numerous different versions of the events, and several witnesses heard her declare her hatred of the victim before the fire. Defendant also admitted that she had a violent streak directed toward the victim, and that she was upset on the morning of the fire. Moreover, within a week after the victim's funeral, defendant joked that she would be in jail.

People v. Boes, No. 248289, 1, 4 (Mich.Ct.App. December 21, 2004).

Petitioner's conviction was affirmed on appeal. Id., lv. den. 474 Mich. 853, 702 N.W. 2d 578 (2005).

Petitioner subsequently filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., with the Ottawa County Circuit Court, which was denied. People v. Boes, No. 02-26455-FC (Ottawa County Circuit Court, February 13, 2008). The Michigan Court of Appeals denied petitioner's post-conviction appeal. People v. Boes, No. 290345 (Mich.Ct.App. March 19, 2009). While petitioner's post-conviction appeal was pending in the Michigan Supreme Court, petitioner filed a petition for writ of habeas corpus with this Court. This Court entered an opinion and order granting petitioner's motion to hold her habeas petition in abeyance pending the completion of state post-conviction proceedings by petitioner. The Court also administratively closed the case. Boes v. Warren, No. 09-12279, 2009 WL 1856511 (E.D. Mich. June 25, 2009). The Michigan Supreme Court subsequently denied petitioner leave to appeal. People v. Boes, 485 Mich. 974, 774 N.W.2d 903 (2009); reconsideration den. 485 Mich. 1105, 778 N.W.2d 225 (2010).

This Court subsequently reinstated the petition to the Court's active docket and permitted petitioner to file an amended habeas petition. Boes v. Warren, No. 09-12279, 2010 WL 5387524 (E.D. Mich. December 22, 2010). On September 21, 2012, petitioner filed a brief in support of the petition for writ of habeas corpus and respondent filed an answer on December 21, 2012.

Petitioner seeks a writ of habeas corpus on the following grounds:¹

I. The trial court violated Ms. Boes' constitutional rights by admitting her involuntary and unknowing statements when she had not properly waived her right to counsel.

II. The trial court violated Petitioner's constitutional right to present a defense by refusing to admit expert testimony regarding the statements taken in this case and why such statements were untrustworthy.

III. Ms. Boes deserves a new trial to protect her constitutional rights because she is actually innocent of the charges. Recent reports and findings concerning fundamental flaws about the arson investigation approach followed in this case cast significant doubts about the factual integrity of the verdict.

IV. Both trial and appellate counsel violated Ms. Boes' Sixth Amendment right to effective assistance of counsel by failing to challenge the confession evidence and arson investigation.

V. There was insufficient evidence to convict Petitioner.

VI. The trial court violated Ms. Boes' constitutional right to presumption of innocence when it admitted photographs of Susan Boes' burned body.

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 unreasonabledetermination 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 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, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), "a habeascourt must determine what arguments or theories supported or...could have supported, the ...