Gabrion v. United States, File No. 1:15-cv-447

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtHON. ROBERT J. JONKER
Docket NumberFile No. 1:15-cv-447
Decision Date04 October 2018


File No. 1:15-cv-447


October 4, 2018



This is an action to vacate, set aside, or correct a death sentence under 28 U.S.C. § 2255, filed by Marvin Charles Gabrion, II. In July 1997, fishermen discovered the body of 19-year-old Rachel Timmerman floating in the shallow, mucky water of Oxford Lake, within the boundaries of the Manistee National Forest. Duct tape had been wrapped all the way around her head, covering her eyes and mouth. Her hands were locked tightly in handcuffs behind her back, and her leg was wrapped in a chain that was padlocked around her waist. Several cinderblocks were attached to the chain to weigh her body down.

After an investigation, the Government charged Gabrion with murdering Rachel on federal property, in violation of 18 U.S.C. § 1111 and 18 U.S.C. § 7. In 2002, following a trial before the Hon. Robert Holmes Bell, a jury found Gabrion guilty and sentenced him to death. On direct appeal, the Court of Appeals found that the evidence against Gabrion was "overwhelming," and affirmed Gabrion's conviction and death sentence.

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Gabrion now raises an exhaustive list of challenges to the criminal proceedings. The Court finds no ineffective assistance of counsel or any other basis upon which to disturb the verdict the jury delivered 16 years ago.

I. Background

A. Initial Rape Investigation

On the evening of August 6, 1996, Rachel Timmerman's sister, Sarah, awoke from her sleep to the sound of commotion inside her trailer. (R. 471: 2/27/2002 Tr. 34; R. 473: 2/26/2002 Tr. 17.)1 Sarah looked around and saw Rachel facing the outside door with a hammer clutched in her hand. Rachel was hysterical. Her face was bleeding from a cut on her nose. Someone outside the trailer was yelling at her and banging on the door. (Id.) A man's voice—Gabrion's—shouted that Rachel would "pay for what she did." (Id.) Rachel yelled back at him, telling him to leave. (Id.) After a while, the banging stopped and Gabrion left.

Rachel was initially reluctant to talk about what had happened that night, but she eventually told Sarah and her brother Shane that Gabrion had raped her and bitten her on the nose. She did not want to report it to the police because Gabrion had threatened that he would kill her and her daughter, Shannon, who was two months old at the time. (2/26/2002 Tr. 17; R. 589: Tr. V, 1219.) After some coaxing from her friends and family, Rachel reported the rape to the police.

After the police received Rachel's report, they attempted to get a statement from Gabrion. He sent them a fax presenting his version of what happened that night. (Gov't Ex. 46.) He claimed that he had been at a friend's house with Rachel, Wayne Davis, and his nephew Mike.

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Gabrion and Rachel left the house in his car, along with Wayne and Mike. During the drive, Rachel offered to perform oral sex on Gabrion, so he let Wayne and Mike out of the car. Gabrion and Rachel drove further down the road and then got out of the car. She performed oral sex on him and then put his semen on her vagina. She asked for intercourse but he refused. At one point, she sat on his dog. As they were leaving, his car got stuck. She helped him push his car out but hurt herself in the process. He then took her to her trailer. Shortly thereafter, she started screaming because she realized that she was hurt.

B. The CSC Prosecution

Newaygo County prosecutor Chrystal Roach charged Gabrion with third-degree criminal sexual conduct (CSC). The police arrested him on January 20, 1997, and served him with a warrant that listed Rachel and others as witnesses to his offense. (Gov't Ex. 104.) The Newaygo County Circuit Court released Gabrion on bond on February 3, after he waived a preliminary examination. Meanwhile, Rachel was arrested and placed in jail for violating the terms of her probation for a drug offense.

1. Witness Davis Disappears

Wayne Davis was one of the witnesses named on Gabrion's arrest warrant. Davis was scheduled to appear for a court hearing on February 13 because he had been charged with driving under the influence. (R. 594: S. Tr. II, 397-98.) A few days before the hearing, he arranged for his friend Darlene Lazo to give him a ride to the court. He told Lazo that he intended to buy a puzzle and some cigarettes to keep him occupied in jail because he expected to serve a 90-day sentence. (Id. at 398.) Lazo saw Davis for the last time on the day before his hearing. He was at his home, with Gabrion. (Id. at 399.)

On the morning of Davis' hearing, Lazo went to his house to pick him up, but no one answered the door. She tried to reach Davis on the phone, but no one responded. She went

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back to his house several times that day, but Davis could not be found. (Id. at 400.) When Lazo returned to his house two days later, she discovered a note on his door, apparently signed by Davis. (Gov't Ex. 103.) The note stated that Davis left for California because he was "scared" that he would be sent to jail. (Id.) Lazo did not believe it. She went inside his house and saw his Army jacket hanging on the back of a chair. She thought that was suspicious because Davis always took this coat with him whenever he left the house. Davis was never seen alive again, and the money in his savings account remained untouched. A few weeks after Davis disappeared, Gabrion put Davis' stereo equipment and microwave up for sale at a consignment shop in Mecosta, Michigan. (S. Tr. II, 407-08.)

2. An Arkansas Seed is Planted

In February/March, Gabrion expressed interest in purchasing a vehicle that Charles Roddy had advertised for sale in Big Rapids, Michigan. (R. 590: Tr. VI, 1437.) Referring to himself as "Lance," Gabrion told Roddy that he wanted a car that could make it to Arkansas (id. at 1437-38), a location that Gabrion would later use in a scheme to avoid conviction for the rape charge.

3. Rachel Disappears

The proceedings in Gabrion's rape case made little progress from February to May 1997, in part, because he changed attorneys several times. On April 29, his third attorney asked to remand his case back to the district court for a preliminary examination.

Rachel completed her jail term and was released on May 5. Prosecutor Roach and Rachel's family anticipated that she would testify against Gabrion at a preliminary examination hearing on June 5. For the next few weeks, Rachel made it clear to others that she was terrified that Gabrion would kill her. At one point, she stopped by a friend's house, closed the curtains, and stated repeatedly that Gabrion was going to kill her because of the rape case. (Tr. V, 1226.)

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She also called the sheriff's office on two different occasions to report that she had seen Gabrion and that she wanted to leave a "trail" in case he followed through on his threat to kill her. (Id. at 1211.)

Rachel's fear was justified. She did not appear in court to testify on June 5, or anytime thereafter. Gabrion waived a preliminary examination hearing for the second time on May 29, and the court scheduled a pre-trial hearing for June 24, 1997. Rachel's family last saw her on June 3, when she and Shannon left home to go on a date with a man named John Weeks.

Rachel did not know Weeks, but he persuaded her to go on a date with him by calling her repeatedly. (R. 595: S. Tr. III, 489.) She did not realize that he was acting on Gabrion's behalf. Weeks' girlfriend at the time, A'lliene Wolf, once caught Weeks calling Rachel on the phone. (S. Tr. II, 426.) He told Wolf that he was doing it as a favor for Gabrion. (Id. at 427.)

In early June, several people saw Gabrion driving his truck near Oxford Lake with a silver boat in the back. (Tr. VI, 1308, 1331.) Some of them, including Kathy Kirk, Bonnie Robinson, and Linda Coleman, saw him in the truck with another man and a blond-haired woman matching Rachel's appearance. (Id. at 1339-41; R. 591: Tr. VII, 1577-79; R. 670: Coleman Tr. 7-8, 12.)

On June 6, one of Gabrion's neighbors, Trevor Zylstra, woke up at around 4:00 am to the sound of a "very loud bang." (Tr. VI, 1407.) He looked out his window and saw Gabrion dragging a metal boat across the gravel in front of Gabrion's house. (Id. at 1408.) Gabrion put the boat down and then removed two life vests, three cinder blocks and a length of chain from inside the boat. (Id. at 1409-10.) Gabrion rinsed the inside of the boat with water and then dragged it into his garage, where he ground off the boat's registration numbers with an angle grinder.2 (Id.

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at 1412-13.) Afterward, Gabrion put the life vests, the cinder blocks, the chain, and the boat into his pick-up truck and left. (Id. at 1414-15.)

Later that week, Gabrion approached some people camping near the Little Manistee River and asked them if he could store his motorcycle at their campsite. (Tr. VI, 1450.) Gabrion referred to himself as Lance, and he was with a man named John (presumably, John Weeks). (Id. at 1450-51.) Gabrion claimed that he was camping at Brower Park, which charged money to park a motorcycle. (Id.) The next day, Gabrion came back to their campsite, alone, and asked if he could store his boat at their site. (Tr. V, 1199; Tr. VI, 1452.) He had a bruise under one eye, scratches on his face, and patches of hair missing. (Tr. VI, 1453.) He claimed that he had gotten into a fight with a friend. (Id.) Two or three weeks later, the campers came across Gabrion in a different location. His campsite was not in Brower Park, and it appeared to have plenty of room for a boat. (Id. at 1200.) They noticed that he was wearing gloves, even though it was June.

That same month, Lloyd Westcomb, a paranoid schizophrenic who had known Gabrion for many years, saw Gabrion in a store in White Cloud, Michigan. Westcomb told Gabrion that he split up with his girlfriend. In response, Gabrion stated that he got rid...

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