Burns v. Lafler, CIV.03-40189.

Decision Date26 July 2004
Docket NumberNo. CIV.03-40189.,CIV.03-40189.
Citation328 F.Supp.2d 711
PartiesWilliam D. BURNS, Petitioner, v. Blaine LAFLER, Respondent.
CourtU.S. District Court — Eastern District of Michigan

William Burns, Freeland, MI, Pro se.

Laura G. Moody, Brenda E. Turner, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Blaine Lafler, Warden, Respondent.


GADOLA, District Judge.

Petitioner, presently confined at the Saginaw Correctional Facility in Freeland, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, Petitioner challenges his conviction on one count of conspiracy to burn real property, M.C.L. § 750.157a, one count of burning real property, M.C.L. § 750.73, and being a habitual offender, M.C.L. § 769.12. For the reasons stated below, the Court will deny the petition.


Petitioner was convicted of the above offenses following a jury trial in the Lenawee County Circuit Court.1 The charges arose from an arson committed at the Adrian Auto Auction on May 31, 1991. Petitioner was not charged until May 19, 1998.

William Newton testified that, on May 31, 1991, Newton and Petitioner left Corky Weaver's house in Toledo, Ohio, and drove to Adrian, Michigan. Petitioner informed Newton that they were going to set the Adrian Auto Auction on fire because there were documents inside of the business which could establish that Petitioner had sold stolen cars to the auction. Petitioner and Newton stopped at a store in Adrian and purchased a can of gasoline.

The men drove to the auto auction and gained access to the building through a window. Petitioner removed some papers from a file cabinet, spread gasoline around the area, and lit the fire. Newton and Petitioner then drove back to Weaver's house.

Newton admitted that he had been using cocaine and alcohol that day. He further acknowledged that he did not report the arson to the police until 1998 and further admitted that when he reported the incident to the police, he was motivated by the $5,000.00 reward being offered by the police for information concerning the arson. Newton had also been charged with the arson, but was testifying in exchange for a plea bargain in which the prosecutor agreed that he would receive no more than two years in prison. Newton testified that he had prior felony convictions for possession of burglary tools, forgery, and fraud. Newton indicated that the plea agreement would be withdrawn if he changed his story against Petitioner.

Weaver was Newton's girlfriend. Weaver testified that while living in Toledo in 1991, she heard Petitioner tell Newton that he wanted to get rid of some documents that the Adrian Auto Auction had concerning automobiles that Petitioner had stolen. Newton and Petitioner left the house. When they returned, the men informed her that they had burned down the auto auction. The men mentioned that they had used gasoline to ignite the fire and that there was butane inside of the building that they were afraid might explode.

Richard Barish testified that he and Ollie Holbrook owned the Adrian Auto Auction. Petitioner used to come to the auto auction. Barish knew that Petitioner worked for an auto dealer in Toledo, but had no knowledge about stolen cars. Barish denied that he had any involvement in the arson, claiming that he had no motive to set the auto auction on fire. Barish denied that he had contemplated declaring bankruptcy, but acknowledged that the auto auction had been for sale at the time of the fire. Barish admitted that he had gotten behind in his payments on the property and at one point had said, "if it burnt, it wouldn't be so bad." Barish claimed that this was "just an off-hand remark."

Michael Lewis of the Michigan State Police testified that he received information in 1991 that Petitioner and some accomplices had sold stolen automobiles to the Adrian Auto Auction. Lewis had intended to go to the auto auction to inspect the records, but the business burned on the morning that Lewis intended to visit the auto auction.

David Noland of the Lenawee County Sheriff's Department was qualified as an expert in the investigation of fires. On May 31, 1991, Noland was called to the Adrian Auto Auction while the fire was still being suppressed. Noland determined that the fire originated in the auction's office. The drawers of the desks and file cabinets had been opened and papers were strewn around the room. Based on the burn pattern that he observed on the floor, Noland believed that a liquid accelerant had been poured on the floor. Noland further discovered that the gas line to the ceiling-mounted heater had been disconnected so that the gas flow from the gas line would feed the fire. Noland concluded that the fire had been intentionally set. Within two weeks of the fire, Noland had received information that Petitioner was a suspect, but he was unable to verify this information. Another law enforcement agency asked Noland not to follow up on this information and not to investigate petitioner any further. Petitioner was not charged until May 1998, after Newton gave police his statement. Holbrook informed Noland that Barish had spoken on several occasions about setting fire to a house that was adjacent to the auto auction.

Sharon Johnson testified for the defense as an alibi witness. In 1991, she had been romantically involved with Petitioner. Johnson worked at Toledo Jeep and had taken a vacation from May 30 to June 10, 1991 to drive to Florida with Petitioner. Johnson and Petitioner had stayed at motels along the route to Florida. Johnson identified a motel receipt from the trip home, when Johnson and Petitioner stayed at a motel in Kentucky for the nights of June 7-8, 1991. The receipt for the motel was signed "Paul Elsie," which was Petitioner's alias.

Robert Bratton of the Ottawa County (Ohio) Sheriff's Department testified for the defense. As part of a separate investigation, Bratton had obtained Johnson's work records from Toledo Jeep, which verified that she had taken time off from work for May 30 through June 10, 1991. Bratton also had obtained the motel receipt from Kentucky. Bratton lastly obtained telephone records which established that Petitioner had made telephone calls from Georgia and Alabama on June 3 and 6, 1991.

Lisa White worked at the Adrian Auto Auction. At one point, Barish informed White that the auction was in financial trouble and would not be around for much longer. Barish offered White $10,000.00 to set fire to the house in front of the auction so that he could collect the insurance money. White indicated that Barish had actually set up cups of kerosene, candles, and a kerosene heater and had left town. White came to set the fire, but when she arrived, someone had upset the cups and the kerosene, so she left without setting the fire.

Holbrook testified that Barish had been attempting to buy out Holbrook's share of the auto auction but had gotten behind in the payments. Barish had mentioned burning the house by the auction to obtain insurance proceeds.

Petitioner was convicted on this evidence. Petitioner's conviction was affirmed on appeal on December 26, 2000, and Petitioner's delayed application for leave to appeal was denied by the Supreme Court of Michigan on June 21, 2001. People v. Burns, 464 Mich. 870, 630 N.W.2d 621 (2001). The Supreme Court of the United States denied Petitioner's petition for the writ of certiorari on November 13, 2001. Burns v. Michigan, 534 U.S. 1027, 122 S.Ct. 562, 151 L.Ed.2d 436 (2001).

Petitioner thereafter filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which was denied by the Lenawee County Circuit Court on April 17, 2002. The Michigan Court of Appeals denied leave to appeal on September 11, 2002. Likewise, the Supreme Court of Michigan denied leave to appeal on March 31, 2003. People v. Burns, 468 Mich. 873, 659 N.W.2d 233 (2003).

Petitioner's present habeas petitioner was accepted for filing in this Court on August 1, 2003. Petitioner seeks habeas relief on the following grounds:

I. Where the burning occurred on May of 1991, and petitioner William Burns was available for trial in the entire intervening period but the prosecution did not charge him until May 19 of 1998, did the circuit court judge err in denying petitioner's motion to dismiss because the delay violated the six-year statute of limitations and the constitutional rights to a speedy arrest and trial, and alternatively did the judge err in not submitting the questions to the jury?

II. Did the trial judge violate the court rule, deny William Burns a fair trial, and commit reversible error by flatly refusing the jury's request during deliberations for the rereading of testimony?

III. Must petitioner's convictions be reversed as violative of his constitutional right to confrontation and due process, where the trial court abused its discretion in failing to exclude the evidence and testimony or dismiss the charges against him when the prosecution's noncompliance with the discovery order would and did result in actual prejudice?

IV. Was petitioner's Sixth Amendment rights to effective counsel violated by the court appointed appellate attorney where the attorney did not properly or adequately brief a constitutional issue raised?

V. Was petitioner's Sixth Amendment right to a speedy trial violated where the trial commenced thirty eight days after Michigan's 180 day speedy trial limitation of M.C.R. 6.004(D) and where the delay is charged to the prosecution?

VI. Is Michigan's statute of limitations, M.C.L. 767.24(1) as it was applied to defendant a violation of the Due Process, Speedy Trial, and Equal Protection Clauses of the U.S. Constitution, 5th, 6th, and 14th Amendments, and is the statute unconstitutional as written?2

II. ...

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