Howe v. Olson, Case No. 16-11661

CourtU.S. District Court — Eastern District of Michigan
Writing for the CourtHonorable Victoria A. Roberts
PartiesBRYAN ZALA CHAPMAN HOWE, Petitioner, v. KATHLEEN OLSON, Respondent.
Decision Date28 September 2020
Docket NumberCase No. 16-11661


Case No. 16-11661


September 28, 2020

Honorable Victoria A. Roberts


This matter comes before the Court on a pro se amended petition filed by Bryan Zala Chapman Howe ("Petitioner") under 28 U.S.C. § 2254. (ECF No. 11.) Petitioner challenges his state convictions for operating or maintaining a methamphetamine laboratory, Mich. Comp. Laws § 333.7401c(1)(a), Mich. Comp. Laws § 333.7401c(2)(f), and conspiracy to operate or maintain a methamphetamine laboratory, Mich. Comp. Laws § 750.157a, Mich. Comp. Laws § 333.7401c. Petitioner raises eight grounds for relief regarding the trial court's jury instructions, the prosecutor's conduct, evidentiary matters, his trial and appellate attorneys, and his rights to defend himself and to confront the witnesses against him. Because his

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claims do not warrant habeas relief, the Court will deny the amended petition and dismiss the case with prejudice.

I. Background

The charges against Petitioner arose from allegations that on December 1, 2011, he used a house in Forsyth Township, Michigan to manufacture methamphetamine and that he conspired with Aaron Armatti ("Armatti"), Richard Hill ("Hill"), or other persons to manufacture methamphetamine. Vickie Lara ("Lara") and Bridget Black ("Black") also assisted in the crimes to some extent.

Petitioner went to trial before a jury in Marquette County Circuit Court. The state appellate court accurately summarized the testimony at trial as follows:

On December 1, 2011, defendant arrived at Marquette General Hospital with severe and suspicious burns. After a brief investigation, the police located what appeared to be a methamphetamine laboratory in Aaron Armatti's house. Further investigation led the police to believe that there had been a conspiracy to manufacture methamphetamine and that defendant had been actively involved. At trial, there was testimony from defendant's ex-girlfriend, Bridgett Black, that her role had been to obtain pseudoephedrine.1 She was apparently told by defendant exactly what to obtain, but the first time she purchased the drug, she obtained the wrong kind or the wrong dose and defendant yelled at her. Black's testimony was corroborated by the testimony of Vickie Lara, an upstairs tenant, who also purchased pseudoephedrine. Because she obtained the wrong type or amount of medication, Black went with Richard Hill, another conspirator, to purchase more. Before they left the house, defendant allegedly told Hill to purchase other ingredients necessary to manufacture methamphetamine, including lithium

1 Pseudoephedrine is an ingredient found in certain over-the-counter cold medicines that can be used in the production of methamphetamine. In this case, Black testified that she was sent to purchase Sudafed.

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batteries, fuel, and an ice pack. While they were away, Armatti, the owner of the house, claimed he saw defendant cleaning pseudoephedrine pills in the sink. When they returned, Armatti claimed he saw Hill and defendant in the kitchen and that defendant was putting pills into a Gatorade bottle.

Armatti claimed that awhile later he heard Hill shouting "Get in the shower. Get in the shower." Armatti said he saw flames in the living room and that there were "little round fires, like, probably 10, 15 in the kitchen." He said he put out the fires in the living room with a blanket, and that the kitchen was "just blazing hot" and the fire was "blue from chemicals." Defendant ran outside on fire and rolled in the snow twice before searching for his car and driving himself and Black to the hospital.

Defendant's theory of the case was that he was in the wrong place at the wrong time. He asserted that he fell asleep on the couch after using morphine, woke up once and took more morphine, woke up a second time and walked into the kitchen just in time to see Armatti flipping a bottle. Then there was an explosion that set him on fire. Defendant testified that he believed the other persons present while methamphetamine was being cooked decided to blame him because they believed he would die from his injuries.

People v. Howe, No. 313143, 2014 WL 2118160, at *1 (Mich. Ct. App. May 20, 2014) (unpublished) (footnote in original).

On August 3, 2012, the jury found Petitioner guilty, as charged, of operating or maintaining a methamphetamine laboratory and conspiracy to operate or maintain a methamphetamine laboratory. On September 7, 2012, the trial court sentenced Petitioner to two concurrent terms of seven to twenty years in prison.

In an appeal of right, Petitioner argued that: (1) inflammatory evidence about the (a) the dangerousness of methamphetamine laboratories and (b) the severity of

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the methamphetamine problem, and irrelevant hearsay evidence deprived him of a fundamentally fair trial and due process; (2) evidence that Hill was convicted of the exact same offense required a new trial; (3) he should have been permitted to cross-examine a witness about the Chief of Police telling her that she botched another case; (4) the trial court erred by refusing to instruct the jury on (a) addict informants and (b) mere presence; (5) resentencing was necessary due to reliance on improper considerations and improper scoring of offense variables; and (6) defense counsel's failure to make proper objections and a record deprived him of effective assistance of counsel.

The Michigan Court of Appeals affirmed Petitioner's convictions and sentence, see id., and on November 25, 2014, the Michigan Supreme Court denied leave to appeal. See People v. Howe, 497 Mich. 905; 856 N.W.2d 22 (2014). Petitioner moved for reconsideration, but on March 31, 2015, the state supreme court denied reconsideration. See People v. Howe, 497 Mich. 985; 861 N.W.2d 2 (2015).

Petitioner subsequently raised a sentencing issue in a motion to remand, which he presented to the state trial court. (ECF No. 17-8.) Because there was nothing pending before a higher court, the trial court treated the motion as a motion for post-appellate relief and denied the motion. (ECF No. 17-9.) Petitioner sought reconsideration and raised most of his habeas claims in a motion to amend the motion for post-appellate relief. (ECF Nos. 17-10 and 17-13.) The trial court denied

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Petitioner's motion for post-appellate relief because the issues were raised or could have been raised on appeal, the issues lacked merit, or Petitioner did not suffer any prejudice from the claimed errors. See People v. Howe, No. 12-50377-FH (Marquette Cty. Cir. Ct. Jan. 14, 2016) (ECF No. 17-14.)

While Petitioner's appeal from the trial court's decision was pending in the Michigan Court of Appeals, he filed his initial petition for the writ of habeas corpus and a motion to stay the case. (ECF Nos. 1 and 2.) On June 15, 2016, the Court granted Petitioner's motion for a stay and closed this case so that Petitioner could pursue additional state remedies. (ECF No. 5.)

The Michigan Court of Appeals subsequently denied leave to appeal because Petitioner failed to establish that the trial court erred in denying his motion for relief from judgment. See People v. Howe, No. 332572 (Mich. Ct. App. Sept. 27, 2016), ECF No. 17-18, PageID.1507. On May 31, 2017, the Michigan Supreme Court denied leave to appeal because Petitioner failed to establish entitlement to relief under the Michigan Court Rules. See People v. Howe, 500 Mich. 1000; 895 N.W.2d 512 (2017).1

On July 14, 2017, Petitioner returned to federal court with a motion to re-open this case (ECF No. 9) and an amended habeas corpus petition (ECF No. 11), which

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incorporates Petitioner's brief in the Michigan Supreme Court during the post-appellate proceedings. On August 7, 2017, the Court granted Petitioner's motion to re-open the case and ordered the Clerk of Court to serve the amended petition on the State. (ECF No. 12.)

Warden Kathleen Olson ("Respondent") subsequently filed an answer to the petition in which she argues that Petitioner's claims are not cognizable on habeas review or they lack merit and any error was harmless. Respondent also asserts that Petitioner procedurally defaulted claims three through seven and that the Michigan Court of Appeals reasonably rejected claim eight. (ECF No. 16, PageID.377-379.)

In the habeas context, a procedural default is "a critical failure to comply with state procedural law." Trest v. Cain, 522 U.S. 87, 89 (1997). The Court "cut[s] to the merits" here, because Petitioner's claims do not warrant habeas relief and a procedural-default analysis would only complicate the case. Thomas v. Meko, 915 F.3d 1071, 1074 (6th Cir.) (citing Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011)), cert. denied, 139 S. Ct. 2726 (2019).

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires prisoners who challenge "a matter 'adjudicated on the merits in State court' to show that the relevant state court 'decision' (1) 'was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) 'was based on

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an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' " Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)).

"A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).

"AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct....

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