Desai v. Booker

• Decision Date: 31 July 2012
• Docket Number: Civil Action No. 2:05–cv–74243.
• Citation: 882 F.Supp.2d 926
• Parties: Jasubhai K. DESAI, Petitioner, v. Raymond BOOKER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

882 F.Supp.2d 926

Jasubhai K. DESAI, Petitioner,
v.
Raymond BOOKER, Respondent.

Civil Action No. 2:05–cv–74243.

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

July 31, 2012.

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F. Martin Tieber, Tieber Law Office, Lansing, MI, Mark R. Bendure, Bendure & Thomas, Martin E. Crandall, Clark Hill, Detroit, MI, Matthew F. Leitman, Miller Canfield Paddock & Stone, PLC, Troy, MI, Thomas G. Plunkett, Williams, Williams, Birmingham, MI, for Petitioner.

Laura Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITIONER'S AMENDED PETITION FOR A WRIT OF HABEAS CORPUS
MARIANNE O. BATTANI, District Judge.
I. INTRODUCTION

This matter is before the Court on Petitioner Jasubhai K. Desai amended petition for a writ of habeas corpus in which he challenges the constitutionality of his 2001 first-degree-murder conviction. Petitioner's conviction occurred in the Third Circuit Court in Wayne County, Michigan, following a four-day jury trial. He is presently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, serving a life sentence for that conviction.

Petitioner's conviction stems from the 1983 death of Ann Marie Turetzky. In 1995, he was charged, along with Stephen Adams, with her murder. Petitioner and Adams were tried jointly but with separate juries. Adams allegedly confessed to an acquaintance that Petitioner hired him to murder Turetzky. Adams exercised his right under the Fifth Amendment and did not testify at trial. However, the trial court allowed the testimony of the acquaintance to be heard by the jury. Adams's jury was unable to reach a verdict and the prosecution dismissed all murder charges against him in exchange for his no-contest plea in an unrelated case, which resulted in a ten-month country jail sentence.

Petitioner filed a direct appeal with the Michigan Court of Appeals challenging, among other things, the admission and use of Adams's alleged hearsay confession under the Confrontation Clause. In affirming his conviction, the Court of Appeals rejected his claim and reached its decision by employing an Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), test for the reliability of hearsay. People v. Desai, No. 238210, 2003 WL 22515292 (Mich.Ct.App. Nov. 6, 2003).

In reviewing Petitioner's original habeas petition, this Court came to a contrary conclusion and ordered the State to release him from custody or grant him a new trial. Desai v. Booker, No. 05–74243, 2007 WL 1343718 (E.D.Mich. May 8, 2007). The United States Court of Appeals for the Sixth Circuit reversed the Court's decision and remanded the matter, leaving open the option for Petitioner to return to state court to exhaust the argument that the introduction of Adams's alleged hearsay statement violated his rights under the Due Process Clause. Desai v. Booker, 538 F.3d 424 (6th Cir.2008).

After the Sixth Circuit's remand, this Court provided Petitioner with the opportunity

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to return to the state courts to exhaust his claim. Petitioner has exhausted his Due Process Clause claim in the state courts and has now returned to the Court with this amended habeas petition.

In his amended habeas petition, in addition to his Due Process Clause claim, Petitioner raises claims concerning his right to present a defense, the twelve-year delay in charging him with the Turetzky murder, the cumulative effect of the state trial court's errors, and whether the standard under section 2254(D) precludes habeas relief and should be adjudged unconstitutional.

For the reasons set forth below, the Court conditionally grants Petitioner habeas relief with respect to his Due Process Clause claim and denies relief with respect to the remaining claims.

II. BACKGROUND

This case has been in the courts, both state and federal, since 1995. The facts are extensive and the procedural posture quite lengthy. However, the Court finds the following substantive and procedural facts pertinent to the case and worth repeating.¹

On November 7, 1983, a Woodhaven, Michigan, police officer found Turetzky's body in the front seat of a car parked in a hotel parking lot. The medical examiner determined that she had been manually strangled.

In 1970, Turetzky worked with Petitioner as a nurse at his medical clinic. In 1976, the two formed a partnership to build a walk-in clinic in Trenton, Michigan. Codefendant Adams worked for Petitioner and Turetzky.

In 1982, Petitioner and Turetzky opened another clinic in Monroe, Michigan. However, their relationship was strained. In order to limit the tension and friction, Turetzky worked at the Trenton clinic and Petitioner worked at the Monroe clinic. Despite the arrangement, they were unable to resolve their conflicts.

When Turetzky's body was found, the police noted that there were scratches underneath her eyes, marks under her chin and on her hands, bruising on her neck, and dried blood on her mouth. They also noted that her jewelry remained intact and her purse was located on the center console, with the contents strewn on the floor of the vehicle. The police, however, failed to obtain photographs of the crime scene, generate sketches, preserve trace evidence, interview motel patrons, or save the belongings scattered in the vehicle. In essence, no significant evidence was preserved from the scene. Thus, without any elementary evidence, the police were unable to specifically target a suspect for the murder.

The Turetzky family then offered a reward to anyone with information about the murder. Turetzky's son, John, believed that Petitioner killed his mother. He went to the clinic where Petitioner worked and, brandishing a gun and firing two shots, attempted to coerce an admission of guilt from him. Despite the threat, Petitioner denied having any connection to her death.

After months of investigating, the prosecutor's office concluded there was not

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enough evidence to charge either Petitioner or Adams. One fact that weighed heavily against charging them was that Adams passed a polygraph examination denying any involvement in the murder.

Then, in 1988, the police and the prosecution learned that Adams allegedly confessed to the killing to a man named Lawrence Gorski. Gorski, who was a possible suspect in the murder himself, told the police that, approximately six weeks after the murder, Adams told him that he murdered Turetzky. The alleged confession took place between two toilet stalls inside the men's bathroom of a bar. While a band was playing at the location, Adams approached Gorski and requested that they meet in the men's bathroom. Adams and Gorski were acquaintances. As a result of that acquaintance, Gorski knew about the clinic's cash business. At one time, Gorski even attempted to steal cash from Petitioner.

In 1995, Gorski testified in state grand jury proceedings. Subsequently, Petitioner and Adams were charged with Turetzky's murder. Adams and Petitioner were charged on the theory that Petitioner had hired Adams to kill Turetzky in order to become the sole owner of the businesses.

For the next six years, the case went back and forth and to and from the trial court and the state appellate courts. After the prosecution filed charges against Petitioner in 1995, Petitioner moved to dismiss those charges on the ground that he had suffered enormous prejudice as a result of the charging delay. On March 21, 1997, the trial court dismissed the charges against him, finding that the prosecution had intentionally delayed the investigation in order to gain a tactical advantage. See Ruling of Court, Mar. 21, 1997, ECF No. 33. The prosecution appealed and the Michigan Court of Appeals reversed the decision, finding that the delay was for investigatory rather than tactical purposes. People v. Adams, 232 Mich.App. 128, 591 N.W.2d 44 (1998). The Michigan Supreme Court denied Petitioner's application for leave to appeal on November 2, 1999. People v. Desai, 461 Mich. 909, 603 N.W.2d 783 (1999) (Table). On October 2, 2000, the United States Supreme Court denied his petition for a writ of certiorari. Desai v. Michigan, 531 U.S. 811, 121 S.Ct. 32, 148 L.Ed.2d 13 (2000).

Finally, in September 2001, eighteen years after the murder, Petitioner and Adams were tried for the Turetzky murder. The prosecution's theory remained the same; Petitioner hired Adams to kill Turetzky in order to gain sole ownership of the clinics.

Adams invoked his Fifth Amendment right not to testify, but his alleged hearsay, bathroom-stall confession to Gorski was admitted under the statement against penal interest hearsay exception, over defense counsel's objections. At trial, Gorski testified that Adams, who had a hearing problem, spoke through a tiny crack separating the stall divider and the bathroom wall. Adams allegedly admitted to Gorski that he, with his own hands and a necktie, strangled Turetzky to death after Petitioner paid him to do so. Gorski also testified that he and Adams together committed crimes in the past. He acknowledged that Adams may have been drinking and using cocaine when the alleged confession took place. He said Adams was a known drug addict with a criminal history.

Gorski's testimony was the only direct evidence against Petitioner and, because Adams invoked his Fifth Amendment right not to testify, Petitioner was unable to counter Gorski's account of Adams's alleged confession with Adams's testimony.

As described, after four days of deliberating, Petitioner's jury found him guilty of the murder, while Adams's jury was unable to reach a verdict. Eventually, the

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prosecution dismissed all murder charges against Adams in exchange for a no-contest plea in an unrelated case. Adams was sentenced to the county jail for ten months.

The state appellate courts affirmed Petitioner's conviction on appeal. Desai, 2003 WL 22515292, at *8;People v. Desai, 471 Mich. 872, 685 N.W.2d 669 (2004) (Table).

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