Cottenham v. Nagy

Decision Date13 October 2021
Docket Number2:19-CV-10690
PartiesRALPH COTTENHAM, Petitioner, v. NOAH NAGY, Respondent,
CourtU.S. District Court — Eastern District of Michigan
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Sean F. Cox, United States District Judge.

Ralph Cottenham, (Petitioner), confined at the Cotton Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C § 2254, in which he challenges his conviction for second-degree murder, M.C.L.A. 750.317. For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. Background

Petitioner was originally charged with open murder.[1] Petitioner was convicted following a jury trial in the Saginaw County Circuit Court of the lesser included offense of second-degree murder. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's conviction arose from the April 28, 2016 killing of his stepdaughter, Amber Morris. Amber's sister, Holly Morris, testified that she and Amber remained friends with defendant after their mother died in October 2014. Holly testified that Amber and defendant worked together and that defendant would give Amber prescription drugs. Brandon Thomas, Amber's fiancé, agreed that Amber used prescription drugs such as tramadol, that she was addicted to prescription drugs, and that defendant would give her money and prescription drugs. Thomas stated that defendant wanted Amber “to come around all the time” and would “bribe” her with money to spend time with him.
The prosecution's primary witness was Cody Sweet, defendant's son. Sweet had been estranged from defendant for most of his life, but began living with defendant in January 2016, having met him only once before. Sweet testified that defendant wanted a “sexual relationship” with Amber. Similarly, Holly described an incident, “about 45 days before [her] sister died, ” in which defendant “was texting [Amber], asking me, is this enough money to ask her for oral sex?” Holly testified that she once took defendant's phone away from him because he was excessively texting Amber. Holly also recalled a time when defendant was upset with Amber and said, “I'll kill that b* * *h.” Holly said that defendant apologized the next day and blamed the statement on being drunk. At trial, Sergeant Matthew Gerow of the Saginaw Police Department recited a series of text messages between defendant and Amber that began on March 29, 2016. In those messages, defendant offered Amber money in exchange for sexual favors and told her that their relationship would end if she declined. In her responses, Amber adamantly and repeatedly declined the offers.
On the afternoon of April 28, 2016, Sweet returned home from work and found Amber and defendant drinking alcohol in the living room. Sweet took a nap until the evening; when he awoke, Sweet observed that Amber and defendant were arguing, which he testified was not unusual. Sweet said that after Amber left the home, defendant called 9-1-1 in an attempt “to get her arrested for a DUI.” According to Sweet, defendant said he was “tired” of “the way she was treating him.” Later that evening, defendant told Sweet that Amber would be returning to the house that night. Sweet testified that defendant said he was “going to kill her, ” but Sweet assumed that he was joking. When Amber returned, she and defendant conversed in the living room while Sweet was in his bedroom. Sweet heard defendant tell Amber that he had to show her something in the basement.” Sweet said that after defendant and Amber went to the basement, he heard “a little bit of argument, commotion.” Specifically, Sweet thought that Amber might have said “help, ” but he stated that he “didn't want to get involved.” The noise ceased, and about 10 minutes later defendant entered Sweet's bedroom and told him that he had killed Amber. Sweet rushed downstairs and observed Amber lying face-down on the floor. Sweet said that defendant proceeded to “kick” and “stomp” on Amber to prove that she was deceased. Defendant then pulled Amber's pants and underwear down and digitally penetrated her. Sweet asked defendant to stop; he did so after “30 seconds to a minute.” Sweet also testified that he observed a “ratchet strap” wrapped around Amber's neck; he stated that defendant told him that he had “tried knocking her out” but then used the strap to “choke her.” Sweet then helped defendant move Amber's body to the trunk of her vehicle. Sweet said that he helped defendant out of fear for his life. Defendant then proceeded to clean up the basement with towels and bleach. Defendant instructed Sweet to meet him at a bar and then left in Amber's vehicle. Sweet picked defendant up from that location, leaving Amber's vehicle there.
The police found Amber's body in the trunk of the vehicle the next day. Within a couple of days, defendant invited Holly to his house. Holly thought it was unusual that they were “chilling” outside on the patio because they usually “hang out in the house.” When Holly later entered defendant's bathroom, she observed a strong odor of bleach. She also noticed that the basement windows were open, which also was unusual. She testified that at one point defendant asked her, [Y]ou don't think I did anything to your sister, do you?”
Dr. Kanu Virani performed Amber's autopsy. He testified that toxicology testing revealed that alcohol and tramadol were in her system when she died, and opined that the cause of death was “a combination of drug intoxication and asphyxia.” Dr. Virani could not say whether asphyxiation or drug intoxication was the sole cause of death. Dr. Virani said that the level of tramadol in Amber's system was “in a toxic range, ” but explained that there is not a “defined overdose” for the drug because a person can develop a tolerance to it. Dr. Virani said that there was “faint bruising” on Amber's face and both sides of her neck. He opined that the markings on Amber's neck were inconsistent “with any string or belt”[2] and indicated that they were consistent with a human hand. Dr. Virani concluded that the manner of Amber's death was a homicide because of “asphyxia and the bruising on the face and the neck.”
Sweet testified that he stopped residing at defendant's home within a few days after defendant killed Amber. Through his attorney, Sweet contacted Sergeant Gerow and disclosed defendant's crime. Sweet was granted immunity from prosecution, and defendant was charged with open murder. The prosecution's theory was that defendant had strangled Amber with his hands and then used the ratchet strap “just to make sure he finished the job ....” Defendant's theory of the case was that Sweet had killed Amber out of jealousy for defendant's attention.

People v. Cottenham, No. 338449, 2018 WL 2223357, at *1-2 (Mich. Ct. App. May 15, 2018).

Petitioner's conviction was affirmed. Id., lv. den. 503 Mich. 915, 919 N.W.2d 776 (2018).Petitioner filed a petition for writ of habeas corpus, which was held in abeyance so that petitioner could return to the state courts to exhaust additional claims. The Court administratively closed the case.

Petitioner filed a post-conviction motion for relief from judgment, which the trial judge denied. People v. Cottenham, No. 16-0042662-FC-5 (Saginaw Cty.Cir.Ct. Apr. 22, 2020). The Michigan Court of Appeals denied petitioner leave to appeal. People v. Cottenham, No. 354044 (Mich.Ct.App. Oct. 9, 2020). Petitioner's application for leave to appeal was rejected by the Michigan Supreme Court because it was filed after the 56 day period for filing such an application. (ECF No. 20-7, PageID. 874).

The Court has reopened the case and permitted petitioner to file an amended petition. In his original and amended petitions, petitioner seeks habeas relief on the following grounds:

I. Was [there] insufficient evidence to prove that Mr Cottenham caused the death where the evidence showed toxic levels of tramadol and a “superdrunk” blood alcohol content.
II. Mr. Cottenham's right to present a defense was violated when the trial court would not allow questioning of Mr. Cottenham's accuser to show bias and/or motive in his story.
III. Was Mr. Cottenham denied his state and federal constitutional rights to due process, to present a defense, and a properly instructed jury where the trial court committed reversible error in failing to instruct the jury that it should view with caution the testimony of Mr. Sweet, who was at the very least a disputed accomplice.
IV. Defendant was denied the effective assistance of counsel when defense counsel failed to raise defendant's mental capacity before trial jury.
V. The cumulative errors that have occurred require reversal of conviction.
VI. The trial court abused its discretion when the defendant was denied due process and equal protection of the law where defendant was not allowed to raise an “alibi” defense or show duress. Defendant was denied ineffective assistance of trial counsel and appellate counsel.
VII. This sentence amounts to cruel and unusual punishment. It's 60 to 90 years is another way of an illegal death penalty, defendant would be 111 years old at his minimum release date, defendant can be sentenced at low end of guidelines 18-19 years as offense variables are wrong, sentence is disproportionate resentencing requested.
VIII. Defense counsel was ineffective for failing to obtain an order for competency evaluation for the petitioner.
IX. Defense couns
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