Bowden v. Palmer

• Decision Date: 12 August 2016
• Docket Number: Case No. 1:13-cv-507
• Court: U.S. District Court — Western District of Michigan
• Parties: JAWAN BOWDEN, Petitioner, v. CARMEN PALMER, Respondent.

JAWAN BOWDEN, Petitioner, v. CARMEN PALMER, Respondent.

Case No. 1:13-cv-507

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 12, 2016

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of 12 years to 36 years. The sentence was imposed by the Kalamazoo County Circuit Court on June 21, 2010, after a jury convicted Petitioner of one count of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b.¹ Petitioner was sentenced as an habitual offender, MICH. COMP. LAWS § 769.12. In his pro se petition, Petitioner raises six grounds for relief, as follows:

I. PETITIONER-DEFENDANT WAS DENIED A FAIR TRIAL BY THE PRESENCE ON THE JURY OF A BIASED JUROR AND DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO CHALLENGE THIS JUROR FOR CAUSE DUE TO THE JUROR'S CLOSE FRIENDSHIP WITH ONE OF THE TESTIFYING DETECTIVES. US CONST. AM XIV, MICH CONST. ART. 1 § 17.

II. PETITIONER-DEFENDANT WAS DENIED A FAIR TRIAL BY THE TESTIMONY OF A NURSE THAT A VAGINAL TEAR ON THE VICTIM COULD ONLY BE CAUSED BY TRAUMA OR INJURY. US CONST. AM XIV; MICH CONST ART I § 17.

III. PETITIONER-DEFENDANT WAS DENIED A FAIR TRIAL BY THE INTRODUCTION OF HIGHLY INFLAMMATORY VIDEO SURVEIL[L]ANCE TAPES WHICH WERE NOT RELEVANT AND WHICH WERE MORE PREJUDICIAL THAN PROBATIVE. US CONST AM. XIV; MICH CONST. ART. 1 § 17.

IV. PETITIONER-DEFENDANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF INADMISSIBLE HEARSAY, NAMELY POLICE TESTIMONY THAT THE VICTIM SAID SHE DID NOT KNOW SHE HAD HAD SEXUAL INTERCOURSE. US CONST. AM XIV; MICH CONST. ART I § 17.

V. PETITIONER-DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION AND A FAIR TRIAL BY THE ADMISSION OF HEARSAY FROM THE INVESTIGATING DETECTIVE THAT SHE HAD DISCOVERED FROM A CO-DEFENDANT THAT DEFENDANT WAS INVOLVED IN THE RAPE. US CONST. AM VI, XIV, MICH CONST. ART. 1 § 17.

VI. THE TRIAL COURT ABUSED ITS DISCRETION IN SCORING CERTAIN OF THE OFFENSE VARIABLES, REQUIRING THAT PETITIONER DEFENDANT BE RE-SENTENCED.

(Pet., ECF No. 1, PageID.4-7, 9; Attach. 1 to Pet., ECF No. 1-1, PageID.14, 16.) Respondent has filed a response to the petition (ECF No. 12) stating that the petition should be denied. Upon review of the pleadings and the record, the Court will deny the petition for failure to raise a meritorious federal claim.

Procedural History

A. Trial Court Proceedings

Following a preliminary examination hearing on November 19, 2009, in Michigan's 8th District Court, the court found that on June 9, 2008, Takeshia McCullough had been the victim of first-degree criminal sexual conduct and that there was probable cause to believe that Petitioner had committed the crime. (PE, ECF No. 14, p. 32.)² The court bound Petitioner over to the Kalamazoo County Circuit Court. (Id.)

Judge Johnson of the Kalamazoo County Circuit Court presided over Petitioner's seven-day jury trial. At trial, Ms. McCullogh testified that on June 8, 2008, she went to Best Western Hotel near Sprinkle Road in Kalamazoo, Michigan, to go swimming. (TT II, ECF No. 16, pp. 173-175.) She went with Petitioner, a person she thought of as her brother because her mother and Petitioner's father had dated. (TT II, ECF No. 16, pp. 159-60.) Petitioner's brother Dionte; some girls, including a couple of girls Ms. McCollough knew from school; and a few of Petitioner's friends were at the hotel as well. (TT II, ECF No. 16, pp. 173-74, 176.) Petitioner rented a room on the third floor, room 307; Petitioner's brother rented a room on the second floor, room 202. (TT II, ECF NO. 16, p. 181.)

Ms. McCollough swam intermittently during the afternoon and evening until the pool closed at midnight. (TT II, ECF No. 16, pp. 175-80.) After that, she initially spent some time in the second floor room where Petitioner's brother Dionte, Mike McKinley, Christina Lacey, and a couple of other participants were using marijuana. (TT II, ECF NO. 16, pp. 181-83.) Eventually she shifted to the thirdfloor room. In that room, Petitioner, his brother, and Sam Dixison, issued a challenge to see who could drink the most shots of alcohol. (TT II, ECF No. 16, pp. 185-90.)

Ms. McCollough could not recall how many shots she drank, but when she stopped, she was tired, dizzy, and nauseous. (TT II, ECF No. 16, p. 191.) She laid down on the bed to watch television and, apparently, passed out. (TT II, ECF No. 16, pp. 191-92.) Ms. McCollough maintained, however, that she had not consented to have sexual intercourse with the Petitioner. (Id. at p. 192.) She awoke at 4:30 p.m. on June 9 in the hospital. (TT II, ECF No. 16, p. 166.) The prosecutor argued that while she was passed out, Petitioner and his friends had raped her.

The prosecutor presented to Ms. McCullough some discs containing video evidence from the hotel's security cameras. (TT II, ECF No. 16, pp. 204-05.) Ms. McCullough had reviewed the videos with the prosecutor before the trial. (Id.) The footage offered brief glimpses of the participants as they moved from one room to the other. Ms. McCullough was able to identify the persons pictured in the videos based on the clothing they wore that evening. (Id. at pp. 205-07.)

Christina Lacey, a friend of Ms. McCullogh, was at the Best Western that night. (TT III, ECF No. 17, pp. 60-61.) Ms. Lacey was in the third floor room when the drinking challenge was issued. (Id. at pp. 64-66.) Ms. Lacey said that Ms. McCullough stopped drinking when she was so drunk she was ready to pass out. (Id. at pp. 66-69.) Ms. Lacey indicated that Dionte Bowden took Ms. McCullough down to the second floor room and Sam Dixison followed. (Id. at pp. 69-70.) After they left, Ms. Lacy heard Petitioner tell Rick Burroughs that Dionte had asked Petitioner to get Ms. McCullough drunk. (Id. at p. 76.) She became suspicious and went down to the second floor room. (Id. at pp. 76-77.)

When she opened the door of the second floor room she saw Sam Dixison, naked from the waist down, standing over Ms. McCullough; she was on the bed and also naked from the waist down. (Id. at pp. 78-80.) Ms. Lacey went up to the third floor room to get help. (Id. at p. 80.) While she was upstairs, the hotel surveillance video shows Petitioner going into the second floor room where he remained with Ms. McCullough for several minutes. (Id. at pp. 81-85.) Ms. Lacey returned to the second floor room and, with the assistance of others, carried the passed-out Ms. McCullough up to the third floor room. (Id. at pp. 85-87.)

The group pulled Ms. McCullough into the third floor room, placed her on the bed, and then an argument ensued. (Id. at p. 87.) Eventually, Petitioner told everyone to leave the room. (Id. at p. 91.) At that time, hotel personnel also informed the group they would have to be quiet or they would have to leave. (Id. at p. 92.) The group, with the exception of Ms. McCullough, was in the hallway or the stairwell. (Id.) Petitioner indicated he had to go back to the third floor room because he had forgotten something there. (Id. at p. 93.)

The hotel surveillance videos show Petitioner's return to the third floor room. (Id. at p. 94.) A few minutes later, Rick Burroughs enters the third floor room. (Id. at p. 95.) He leaves after a couple of minutes and then an unidentified person enters the room. (Id. at p. 96.) Moments later, Petitioner leaves. (Id.) Three minutes later, Rick returns to the room. (Id. at p. 97.) Rick leaves about eight minutes later, but then returns to the room with another unknown person. (Id. at pp. 98-99.) That was how things stood when the video ended. (Id. at p. 100.)

Between 4:00 and 4:30 a.m., Ms. Lacey had informed the hotel staffperson what was going on. (Id.) She also called her mother. (Id.) Her mother called Ms. McCullough's mother. (Id.)

Ms. Alicia Thompson testified that she was at the Best Western during the early morning hours of June 9, 2008. (Id. at pp. 118-19.) Ms. Thompson was also in the third floor room when Ms. McCullough drank so much that she passed out. (Id. at pp. 119-22.) When Ms. Lacey informed Ms. Thompson that she had seen Sam Dixison, naked from the waist down with the passed-out Ms. McCullough in the second floor room, Ms. Lacy went down to the second floor room to see for herself. (Id. at p. 126-27.) She knocked on the door. (Id. at p. 128.) Eventually, Petitioner answered the door. (Id. at p. 129.) Ms. Lacy testified that his shorts appeared as if they had been just put on hastily. (Id. at pp. 130-31.) Ms. McCullough was passed out and naked on the bed. (Id. at pp. 131-32.)

Ms. Thompson echoed Ms. Lacey's testimony with regard to what followed. They brought Ms. McCullough back to the third floor room and then everyone left the room. (Id. at pp. 136-37.) After the group left Ms. McCullough in the room, Petitioner took Ms. Thompson home, but she had to wait for him for about 15 to 20 minutes before he drove her home. (Id. at pp. 138-41.) She was unsure what he was doing during that time period. (Id.)

Registered nurse Rose Cochran treated Ms. McCullough a couple of hours after she arrived at Bronson Hospital. (Id. at p. 172-73.) Nurse Cochran reported that Ms. McCullogh's blood alcohol level was 0.37, based on blood drawn at 5:30 a.m. (Id. at p. 184.) Ms. McCullough remained unresponsive while under Nurse Cochran's care, even while a physician performed the tasks required for the "rape kit." (Id. at pp. 185-87, 190-93.) With regard to the rectal swab that was taken from Ms. McCullough, Nurse Cochran testified that she did not believe the physician penetrated the anus, but instead simply swabbed around the outside of the anus. (Id. at pp. 196-99.) Nurse Cochran testified that Ms.McCullough had suffered a small cut to her vaginal opening, the sort of injury that might be caused by intercourse or digital penetration. (Id. at pp. 187-89.)

Registered nurse Julie Kiel also treated Ms. McCullough at Bronson Hospital. (Id. at p. 202.)...