Bogseth v. Burt

• Decision Date: 04 January 2022
• Docket Number: 1:20-cv-977
• Court: U.S. District Court — Western District of Michigan
• Parties: BRENT WILLIAM BOGSETH, Petitioner, v. SHERRY BURT, Respondent.

BRENT WILLIAM BOGSETH, Petitioner, v. SHERRY BURT, Respondent.

No. 1:20-cv-977

United States District Court, W.D. Michigan, Southern Division

January 4, 2022

OPINION

SALLY J. BERENS, United States Magistrate Judge

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. The parties have consented to the conduct of all proceedings in this case, including entry of a final judgment and all post-judgment motions, by a United States Magistrate Judge. (ECF Nos. 19, 21.) Petitioner Brent William Bogseth is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility in Muskegon Heights, Muskegon County, Michigan.

On October 7, 2020, Petitioner filed his habeas corpus petition raising eight grounds for relief, as follows:

I. Was the evidence insufficient to support the conviction for first-degree murder in violation of the United States Constitution Amendments V, XIV.

II. Should the Petitioner's conviction be vacated and a new trial granted because the trial court's erroneous admission of the hammer as demonstrative evidence over defense counsel's objections constituted clear error and the trial judge's limiting instruction was insufficient to remove the unfair prejudicial effect of the hammer? In the alternative, was the petitioner's trial counsel constitutionally ineffective in failing to properly object to the introduction of the hammer?

III. Was there a violation of the Petitioner's United States Constitution Amendment IV right, and was that evidence erroneously admitted at trial?

IV. Was the ineffective assistance of counsel a violation of the Petitioner's United States Constitution Amendment VI right?

V. [Did] the prosecutorial misconduct result[] [in] a denial of a fair trial for the Petitioner and a violation of his constitutional rights?

VI. Was the verdict against the great weight of the evidence?

VII. Was the arrest of the Petitioner prior [to] positive identification of the victim, and defects in the extradition hearing and sufficiency of papers a due process violation?

VIII. Were the jury instructions faulty resulting in a due process violation?

(Pet., ECF No. 1-1, PageID.18-38.) Petitioner was permitted to amend his petition to include an additional issue:

IX. Ineffective assistance of appellate counsel[] where[] appella[te] counsel was ineffective [for] failing to raise on defendant-appellant's right to appeal, ineffective assistance of counsel [for] the failure to challenge the defendant-appellant's extradition. The defendant-appellant alleges the error is a jurisdictional structural defect.

(Pet'r's Mot. to Amend, ECF No. 9, PageID.180.) Respondent has filed an answer to the petition (ECF No. 8) stating that the Court should deny relief with regard to each of Petitioner's habeas grounds for one or more of the following reasons: failure to exhaust state court remedies procedural default, noncognizability, and lack of merit. In reply, Petitioner has voluntarily dismissed claims III, VI VII, VIII, and IX. (Pet'r's Reply Br., ECF No. 16 PageID.2439.) Therefore, only grounds I, II, IV, and V remain. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. 104-132, 110 Stat. 1214 (AEDPA), the Court finds that the grounds are either not cognizable on habeas review, or they lack merit. Accordingly, the Court will deny the petition.

Discussion

I. Factual allegations

Petitioner is incarcerated for the premeditated and deliberate killing of his wife. Petitioner contests that the prosecutor presented sufficient evidence to support the verdict. He contends that a determination that the killing was premeditated or deliberate is nothing more than rank speculation. The Michigan Court of Appeals concluded otherwise. That court recounted the testimony elicited at trial in detail and posited certain inferences-inferences that the appellate court characterized as reasonable-that supported a finding that the killing was deliberate and premeditated. Although Petitioner challenges the court of appeals' characterization of the inferences as reasonable, he does not challenge the court's description of the evidence elicited at trial. Moreover, “[t]he facts as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).” Shimel v. Warren, 838 F.3d 685, 688 (6th Cir. 2016) (footnote omitted).

Petitioner's challenge to the sufficiency of the evidence will require an in-depth examination of the trial testimony. For purposes of background, however, a simpler account will suffice. Petitioner picked up his wife from their home on the morning of September 1, 2015, to bring her to work. As far as the investigating officers could determine, no one saw her after that. She never arrived at work. Her partially buried body was found a week later. She had suffered multiple blows to the head that were consistent with the injuries one might expect from an instrument such as a claw hammer.

After hearing testimony for five days, the jurors deliberated for about a day before returning their verdict. Petitioner appealed his conviction to the Michigan Court of Appeals. In the brief he filed with the assistance of counsel, he raised two issues (Pet'r's Appeal Br., ECF No. 14-14, PageID.1794), the same issues he raises as habeas grounds I and II in this Court.

Petitioner also filed a pro per supplemental brief raising multiple issues, including the issues he raises as habeas grounds IV and V in this Court. (Pet'r's Pro Per Suppl. Br., ECF No. 14-14, PageID.1843.) On February 13, 2018, the Michigan Court of Appeals issued an opinion rejecting Petitioner's challenges and affirming the trial court. (Mich. Ct. App. Op., ECF No. 14-14, PageID.1717-1731.)

Petitioner then filed a pro per application for leave to appeal to the Michigan Supreme Court raising five issues, including the matters raised in habeas grounds I, II, IV, and V, herein. That court denied leave by order entered December 4, 2018. (Mich. Order, ECF No. 14-16, PageID.2228.) Thereafter, Petitioner filed a petition for writ of certiorari in the United States Supreme Court. The Supreme Court denied the petition by order entered April 15, 2019. (Corr., ECF No. 14-16, PageID.2229.)

On July 30, 2019, Petitioner filed a motion for relief from judgment in the trial court. (Van Buren Cnty. Cir. Ct. Docket Sheet, ECF No. 14-1, PageID.322.) The trial court denied relief initially by order entered September 9, 2019 (Van Buren Cnty. Cir. Ct. Op. & Order, ECF No. 14-15, PageID.1905-1923, 2056), and on reconsideration by order entered October 3, 2019 (Van Buren Cnty. Cir. Ct. Op. & Order, ECF No. 14-15, PageID.1924-1925). Petitioner raised new claims in his motion, but he also reiterated the claims he had raised on direct appeal, including the claims raised in habeas grounds I, II, IV, and V in this Court. With regard to the reiterated claims, the trial court denied relief under Michigan Court Rule 6.508(D)(2), because the issues had already been decided against Petitioner on direct appeal. Petitioner sought leave to appeal the trial court's decisions in the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave by orders entered March 3, 2020, and September 29, 2020, respectively. (Mich. Ct. App. Order, ECF No. 14-15, PageID.1902; Mich. Order, ECF No. 14-17, PageID.2419.) A week later Petitioner timely filed his habeas petition.

II. AEDPA standard

The AEDPA “prevent[s] federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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.” 28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381- 82 (2000); Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the...