Holbrook v. Burt

• Decision Date: 27 February 2020
• Docket Number: CASE NO. 2:13-CV-11235
• Parties: CAMERON HOLBROOK, #382196, Petitioner, v. S. L. Burt, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CAMERON HOLBROOK, #382196, Petitioner, v. S. L. Burt,¹ Respondent.

CASE NO. 2:13-CV-11235

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 27, 2020

HONORABLE SEAN F. COX

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

I. INTRODUCTION

Michigan prisoner Cameron Holbrook ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of his constitutional rights. Petitioner was convicted of first-degree murder and possession of a firearm during the commission of a felony following a jury trial in the Oakland County Circuit Court. He was sentenced, as a third habitual offender, to life imprisonment without the possibility of parole and a consecutive term of two years imprisonment on those convictions in 2008. This matter is before the Court on remand from the United States Court of Appeals for the Sixth Circuit, which reversed the Court's decision granting Respondent's motion for summary judgment and dismissingthe habeas petition as untimely under the one-year statute of limitations applicable to federal habeas actions.

In his pleadings, Petitioner raises 15 claims for relief concerning the admission of the victim's statements to police and his girlfriend, the sufficiency of the evidence, the effectiveness of trial and appellate counsel, the absence of counsel/right to counsel, the impartiality of the trial judge, the application of state procedural law, an alleged state jurisdictional defect, the conduct of the prosecutor, the trial court's questions to a witness, and cumulative error. Respondent contends that the claims are non-cognizable, barred by procedural default, and/or lack merit. Having reviewed the matter, the Court finds that Petitioner is not entitled to relief on his claims such that the habeas petition must be denied. The Court also finds that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

II. FACTS AND PROCEDURAL HISTORY

Petitioner's convictions arise from the shooting death of Gary Nelson Jr. in September, 2007 in Pontiac, Michigan. The prosecution, on direct appeal, set forth a detailed summary of the trial testimony. The Court adopts those facts to the extent that they are consistent with the record.

During trial, Oakland County Deputy Medical Examiner Patrick Cho was qualified as an expert in the area of forensic pathology. (Tr I, 98). Cho performed the autopsy on the victim, Gary Nelson, Jr. (Tr I, 100). Nelson died on September 18, 2007 at 1:57 a.m. (Tr I, 100-101). The cause of Nelson's death was multiple gunshot wounds and the manner of death was homicide. (Tr I, 101). Cho identified seven gunshot wounds on Nelson which included:

(1) gunshot entered right upper shoulder and exited in the middle of his back

(2) gunshot entered mid torso and exited in the back

(3) gunshot entered right lateral flank and exited in the left inferior buttock

(4) gunshot entered right lower abdominal and exited left upper thigh

(5) gunshot entered mid lower abdomen and almost exited throughright lower thigh

(6) gunshot entered right lower flank and exited right hip

(7) gunshot entered palm of right hand and exited back of right wrist [Tr I, 102-107].

Nelson tested negative for drugs. (Tr I, 107). Cho opined that the gunshot to Nelson's right hand was a defensive wound. (Tr I, 108).

Oakland County Detective Sergeant David Wurtz testified he reviewed telephone records from the Oakland County Jail. Telephone calls were made from the jail cells where Defendant had been housed to the phone number 313-465- 6102 [phone number of Clarence Cowen, Nelson's cousin], but Wurtz had no way of knowing if Defendant was actually the person placing the calls. (Tr I, 112-113, 122-123, 160-161).

Tashena Adams testified she was Nelson's girlfriend and they lived together in Pontiac. (Tr I, 126). Adams indicated that Clarence Cowen was Nelson's first cousin and Cowen's nickname was "Pig." (Tr I, 128). Nelson and Cowen did not have a good relationship. (Tr I, 128). Toward the end of July/early August 2007, Nelson was injured and had bruises, cuts and blood on his shirt. (Tr I, 129-130).

Adams testified that on September 17, 2007, Nelson received three or more calls around 10:30 p.m. (Tr I, 131). Nelson left the apartment but came back around 10:45-11:15 p.m. (Tr I, 133). After returning to the apartment, Nelson received two or three more phone calls. (Tr I, 133). Nelson left the apartment again and around 11:30 p.m. somebody knocked on her door and told Adams that her boyfriend had been shot. (Tr I, 133, 140-141). The shooting occurred in the parking lot of their apartment. (Tr I, 134). When Adams arrived at the parking lot, she saw Nelson lying on his back holding his abdomen. (Tr I, 134, 141). Nelson was right in front of the building, on the walkway near the front door. (Tr I, 141). The police were on the scene when Adams arrived. (Tr I, 142).

The prosecutor attempted to elicit Nelson's statement to Adams about where he was going the night in question and who he was going with. (Tr I, 131-132). Defense counsel objected and the trial court initially sustained the objection. (Tr I, 132). A short time later, the prosecutor, outside the presence of the jury, reiterated its request to admit Nelson's statements to Adams, under the present sense exception to the hearsay rule. (Tr I, 136-137). The trial court ruled that the state of mind of the declarant would be admissible to show a future act if a proper foundation was laid. (Tr I, 138).

In the presence of the jury, Adams reiterated that Nelson had received a series of phone calls on the night in question and that based on those phone calls, Nelson was planning on going out with a friend and have a drink. (Tr I, 139-140). Nelson saidhe was going out with Kimmy or Cam. (Tr I, 140). Adams did not know a person named Kimmy or Cam. (Tr I, 140).

Defense counsel objected when the prosecutor asked Adams what Nelson said when she saw him after he was shot. (Tr I, 143). The prosecutor argued that the statements were admissible as a dying declaration or an excited utterance. (Tr I, 144). Outside the presence of the jury, the trial court asked defense counsel what foundation was missing for the admission of the statements. (Tr I, 144). Defense counsel indicated that the declarant must have been aware of his impending death. (Tr I, 144). The prosecutor responded that the foundation was laid by the type of injuries Nelson received as previously set forth by the medical examiner. (Tr I, 145). The trial court indicated that the foundation could be laid by looking at the totality of the circumstances surrounding the shooting. (Tr I, 146). The prosecutor responded that subsequent police testimony would show that the victim was gasping for breath and had a death stare when he implicated Defendant. (Tr I, 146). The trial court ruled that with the offer of proof, a proper foundation had been laid for the admission of Nelson's statement as a dying declaration. (Tr I, 147).

Adams testified she heard a police officer ask Nelson if he knew who shot him and Nelson relied "yes." (Tr I, 148). Nelson told the police officer that "Kimmy" shot me. (Tr I, 149). Nelson gave the police the make and model of a vehicle. (Tr I, 149). When Nelson was talking, he was experiencing shortness of breath. (Tr I, 150).

On cross-examination, defense counsel asked Adams if Nelson had ever talked to her about Kimmy before the night of the shooting and she responded that she had heard him talk about Kimmy. (Tr I, 151). Defense counsel impeached Adams with her preliminary examination testimony where she said she did not know Kimmy. (Tr I, 151). Adams said she had heard the name "Kimmy," but she did not know him. (Tr I, 152). On redirect, Adams indicated she told Nelson she did not know who Kimmy was and Nelson told her Kimmy was "Cam" and he had a brother named "Budgie" that Nelson grew up with. (Tr I, 154-155).

Gary Nelson Sr. [hereinafter "Nelson, Sr."] testified he was the victim's father. (Tr I, 157). Nelson, Sr. testified that his son was 25 years old when he died. (Tr I, 157). Nelson, Sr. indicated that Clarence Cowen was his nephew and Cowen was a drug dealer. (Tr I, 157-158). Nelson, Sr. had a conversation with Cowen and based on this conversation he believed there were problems between his son and Cowen. (Tr I, 159). Nelson, Sr.'s wife observed an altercation between her son and Cowen. (Tr I, 159). Cowen's nickname was "Pig." (Tr I, 159). Nelson, Sr. did not know where Cowen was currently residing. (Tr I, 160). Nelson, Sr. identified Cowen's voice on the disk admitted into evidence, Exhibit 2. Exhibit 2 contained taped recorded conversations originating from the Oakland County Jail to the number 313-465-6102. (Tr I, 112-113, 122-123, 160-161). Nelson, Sr. did not know Defendant but knew Budgie because he played football with Nelson. (Tr I, 162). Budgie had abirthmark over his eye. (Tr I, 163).

Diana Nelson [hereinafter "Diana"] testified she was Nelson's mother. (Tr I, 166). Five or six weeks prior to Nelson's death, Diana saw an altercation between Nelson and Cowen. (Tr I, 167). Diana saw Cowen at the rear of a truck and his brother and cousin were trying to fight her son. (Tr I, 168). Once the fight was over, Cowen told his brother and cousin to get back in the truck and Cowen tried to run over Nelson with his truck. (Tr I, 168). Diana said she knew Budgie because he played football with her son when they were children. (Tr I, 169).

Pontiac Police Officer Don Russell testified that he was dispatched to the crime scene [63 Prall, Pontiac]. (Tr I, 172). Upon arriving at the scene, Russell saw Nelson lying on his back in a pool of blood with three gunshot wounds to the stomach area. (Tr I, 172, 177). Russell also observed a wound to Nelson's side. (Tr I, 178).

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