Buie v. Rivard

• Decision Date: 17 May 2016
• Docket Number: CASE NO. 2:14-CV-11100
• Parties: JAMES HENRY BUIE, #174915, Petitioner, v. STEVEN RIVARD, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JAMES HENRY BUIE, #174915, Petitioner, v. STEVEN RIVARD, Respondent.

CASE NO. 2:14-CV-11100

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 17, 2016

HONORABLE SEAN F. COX

OPINION AND ORDER DENYING THE HABEAS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner James Henry Buie ("Petitioner"), currently confined at the St. Louis Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. Petitioner was convicted of two counts of first-degree criminal sexual conduct involving a victim under the age of 13, Mich. Comp. Laws § 750.520b(1)(a), three counts of first-degree criminal sexual conduct involving the use of a weapon, Mich. Comp. Laws § 750.520b(1)(c), and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, following a jury trial in the Kent County Circuit Court. He was sentenced, as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of life imprisonment on the criminal sexual conduct convictions and a consecutive term of two years imprisonment on the felony firearm conviction in 2007.

In his pleadings, Petitioner raises claims concerning the use of two-way video-conferencing for medical and expert testimony from Dr. Vincent Palusci and DNA expert Rodney Wolfarth, the denial of his request for substitute counsel, his absence from the courtroom during part of jury voir dire, and the admission of other acts evidence. For the reasons stated herein, the Court finds that his claims lack merit and denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from his sexual assault of a woman and the two girls whom she was babysitting at the girls' home in Grand Rapids, Michigan in 2001. The Michigan Court of Appeals set forth the relevant facts, which are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Those facts are as follows:

On June 27, 2001, defendant entered a house in Grand Rapids, Michigan, and sexually assaulted B.S. and minors L.S., age 13, and D.S., age 9. At the time of the incident, L.S. and D.S. lived in the house with their mother, their two brothers, and their mother's roommate. B.S., who was a close family friend, was at the house that night to babysit the children while their mother was out. L.S. and D.S.'s mother testified that she knew that B.S. had used cocaine in the past, but believed that B.S. was "clean" when she asked her to watch the children. B.S. later admitted, however, that she was still using cocaine at the time of the incident.

B.S. arrived at the house at approximately 7:00 p.m. Between 1:00 and 2:00 a.m., she went and sat down on the front porch. B.S. initially reported that defendant forced her back inside the house at gunpoint. According to B.S.'s trial testimony, however, defendant approached her while she was seated on the porch. He asked to use a telephone. B.S. consented and allowed defendant to enter the house. She then propositioned defendant to exchange sexual favors for cocaine and led him into a large closet. Once inside the closet, defendant pointed a gun at B.S.'s head and penetrated her vagina with his penis. He also attempted to penetrate her anally.

During the assault, B.S. heard the roommate of the minor's mother at the front door. After the roommate entered the house, defendant struck him in the head with a gun. The roommate fell to the floor, unconscious. At that point, L.S., D.S., and the other two children entered the room. L.S. and D.S. testified that they saw defendant holding a gun to B.S.'s head. Defendant then ordered B.S. and all four of the children to enter the closet and lie down.

According to L.S., defendant subsequently moved her from the closet to the couch.

Once on the couch, defendant penetrated her vagina with his penis. During the assault, defendant told L.S. that he loved her and that if she tried to escape, he would kill her family. Defendant assaulted L.S. again in her bedroom and in the kitchen. At some point, he attempted to penetrate her anally. After the assault in the kitchen, defendant took L.S. back to the couch and told her to put her head down. Defendant then moved D.S. from the closet to the kitchen. According to D.S., defendant penetrated her vagina with his penis. L.S. remained on the couch with her head down and could hear D.S. crying in the kitchen. Defendant then moved D.S. back to the closet and assaulted her again. Defendant held a gun throughout the assaults.

After defendant assaulted D.S. in the closet, he left the house and B.S. called the police. L.S. and D.S. were unable to identify the man who assaulted them. The roommate described the man who hit him as a black male, but was also unable to identify defendant as his assailant. At trial, B.S. identified defendant as the man who assaulted her, L.S., and D.S. She testified that she had never seen him before the night of the incident and had not seen him since that night.

Dr. Vincent Palusci examined L.S. and D.S. approximately six hours after the assaults. Dr. Palusci testified that his findings "were indicative of sexual conduct of direct trauma to the genitals, and in the case of [L.S.], also her anus, which were not explainable in any other manner than the histories provided" by the girls. Christine Dunnick, a forensic nurse, examined B.S. after the assaults and found a "half a centimeter perianal tear, which is near the anal opening," consistent with the history provided by B.S. Dr. Palusci and nurse Dunnick collected evidence, including vaginal and rectal swabs, during the examinations and placed the evidence in rape kits. The kits were then sealed and released to the appropriate law enforcement agencies.

The trial court designated Rodney Wolfarth as an expert in the area of DNA analysis. Wolfarth conducted DNA testing on the swabs in the rape kits and the nightgown worn by L.S. during the assaults, as well as a fitted sheet, a pillowcase, and cigarette butts found at the scene. Wolfarth testified that he found sperm cells in the vaginal and rectal swabs taken from L.S. When he tested the sperm cells from the rectal swab, "it was consistent with a mixture and the mixture was consistent with [L.S.] and an unknown semen donor, designated as Donor 1." Wolfarth found the same mixture on the nightgown and found DNA from Donor 1 on the fitted sheet, pillowcase, and cigarette butts. Wolfarth was unable to identify a match for the DNA at that time, but stated that once DNA testing is completed, the "probative DNA result is entered into what is a DNA data bank called CODIS, which stands for Combined DNA Indexing System." The data are stored to allow for comparisons to convicted felons' profiles at a later date. When a match is made between a DNA sample and a known profile, it is referred to as a CODIS hit.

At defendant's trial in this case, one of the prosecution's witnesses, LB, testified thatdefendant had sexually assaulted her in 2004, when she was 13 years old. L.B. told her sister that defendant had assaulted her and, shortly thereafter, the incident was reported to the police. DNA analysts subsequently determined that defendant's DNA matched sperm cells from L.B.'s vaginal swab and underwear. The results of the DNA testing were entered into CODIS.

On February 1, 2005, a CODIS hit occurred when the system matched defendant's DNA to the DNA samples taken in this case. Thereafter, a search warrant to conduct a buccal swab for defendant's DNA was obtained. Defendant was initially uncooperative, but eventually consented to the swab. Joel Schultze, who was designated by the trial court as an expert in DNA analysis, testified that the DNA sample was tested and compared to Wolfarth's previous findings. According to Schultze, the DNA material on the nightgown, pillowcase, fitted sheet, and cigarette butts were consistent with defendant's DNA. In addition, the DNA mixture in the rectal swab taken from L.S. was consistent with a mixture of DNA from L.S. and defendant at 10 of 13 locations. Defendant's DNA was not found on any of the swabs taken from D.S., but Schultze explained that even if penetration occurs, "if there's no ejaculation, the male DNA is not going to be there." Schultze further testified: "In the Caucasian population the probability is 1[in] 1.4 quintillion that [a] randomly chosen person would match the profiles on the cigarettes butts, nightgown, pillowcase and sheet. In the African-American, it's 1[in] 188.9 quadrillion." As for the rectal swab match, "in the Caucasian population it would be approximately one to two million—one in one to two million people would be able to contribute to that mixture on the rectal swab. In the African-American, it would be one in approximately 100,000 to 175,000 African-Americans."

Defendant was convicted and sentenced as previously stated.

People v. Buie, 285 Mich. App. 401, 403-06 (2009).

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising several claims, including those presented on habeas review. The court remanded the case to the trial court to determine whether the two-way video-conference testimony was necessary to further an important public policy or state interest and, in doing so, declined to find that Petitioner waived the issue. Id. Both parties appealed to the Michigan Supreme Court, which denied the appeal but added that the trial court must determine whether there was good cause for the video-conference testimony under Michigan Court Rule 6.006(C) and whetherPetitioner consented. People v. Buie, 485 Mich. 1105, 779 N.W.2d 81 (2010)...