Malcum v. Burt
| Decision Date | 30 July 2003 |
| Docket Number | No. 02-CV-73261-DT.,02-CV-73261-DT. |
| Citation | 276 F.Supp.2d 664 |
| Parties | James Keith MALCUM, Petitioner, v. Sherry BURT, Respondent, |
| Court | U.S. District Court — Eastern District of Michigan |
Jillvonnie M. Flowers, Detroit, MI, James Malcum, Earnest C. Brooks, Muskegon Heights, MI, for Petitioner.
Brenda E. Turner, William C. Campbell, Michigan Department of Attorney General Habeas Corpus Division, Lansing, MI, for Respondent.
James Keith Malcum, ("Petitioner"), presently confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, both pro se, and with the assistance of attorney Jillvonnie M. Flowers. In his application, Petitioner challenges his convictions for two counts of first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(e); MS.A. 28.788(2)(1)(e); and one count of larceny in a building, M.C.L.A. 750.360; M.S.A. 28.592. For the reasons stated below, Petitioner's application for a writ of habeas corpus is dismissed with prejudice.
Petitioner was convicted of the above offenses following a jury trial in the Detroit Recorder's Court. The victim in this case, Robert Penn, testified that he encountered Petitioner at a traffic light in Detroit, Michigan in December of 1993. Penn had known Petitioner for approximately ten years, because Petitioner had been employed at an apartment building where Penn had previously resided. Penn asked Petitioner if he was interested in doing some home improvement work for him and gave him his address and telephone number. Penn saw Petitioner a few days later at a party store and asked Petitioner to call him and set up a time to do some painting on Penn's house. Petitioner never called, however, so Penn hired someone else to do the home improvement work for him. Nonetheless, Penn still wanted Petitioner to contact him in regards to doing some additional painting on his house.
On the night of December 27, 1993, Petitioner stopped by Penn's house while Penn was on the telephone. Penn testified that Petitioner would not leave the house right away and made some comments about the nightshirt that Penn was wearing. Finally, Petitioner left the house. Penn testified that he was going to take a bath and go assist his friend, J. Blacksher, who needed someone to drive around the neighborhood with him. A short time later, Penn heard a knock on the door. Penn opened the door and walked away without seeing who it was. Petitioner entered the house and accused Penn of attempting to "play me for a bitch." Petitioner grabbed a screwdriver and the two men tussled. Penn was dragged by Petitioner to the back of the house. Penn claimed that he tore a banister out of the wall and tore some of Petitioner's clothing during the struggle.
Petitioner eventually dragged Penn upstairs to a bedroom. Petitioner threatened Penn with an empty champagne bottle and a steak knife. Petitioner then attempted to have anal sex with Penn, but Penn told him to go downstairs to get some vaseline as a lubricant first. While Petitioner was downstairs, Penn attempted to call the police, but Petitioner picked up another extension of the telephone. Petitioner came back upstairs and forced Penn to engage in multiple acts of oral and anal sex. While having sex with Penn, Petitioner bit his lip so hard that it began to bleed. Penn ultimately got away from Petitioner and left his house, while locking Petitioner inside behind an iron or metal grate. Penn went to a neighbor's house to contact the police. Penn testified that the police arrived, but laughed at him and did not do their jobs properly.
Penn testified that he was H.I.V. positive, which caused him to fatigue easily. Penn denied smoking crack cocaine, explaining that smoking crack would suppress his immune system and exacerbate his illness. Penn further indicated that he had already developed the symptoms of A.I.D.S., including weight loss and lesions.
Penn testified that certain items were taken by Petitioner. However, none of these items were found during a pat-down search of Petitioner.
On cross-examination, Penn admitted that the police did not take any of Petitioner's clothes into evidence and further acknowledged that a picture of Petitioner which had been taken on the night of the incident did not show Petitioner's clothes to have been torn. Penn claimed that he had been bleeding after the sexual assault and had cleaned himself up with a towel, but indicated that the police did not take this towel into evidence and that he had in fact, thrown it away. Penn further claimed that hospital staff at Detroit Receiving Hospital did not know why he was there or that he needed a rape shield kit. Penn admitted that the nurses allowed him to go to the bathroom and drink hot chocolate, which should not have been permitted, because evidence could have been destroyed. Penn claimed that when he arrived at the hospital, hospital staff already knew that he was H.I.V. positive.
J. Blacksher testified that he was a friend of Robert Penn. On December 27, 1993, Blacksher received a telephone call from Penn at about 4:00 a.m. Blacksher could barely understand what Penn was saying, because he was hysterical and excited. When Blacksher arrived at Penn's house, police officers were already there. Blacksher described Penn as being hysterical and almost incoherent. Penn was dressed only in a nightshirt. Blacksher testified that he took Penn to the hospital. Blacksher, however, testified that he was not planning on going to Penn's house until he received the telephone call, and that Penn, as far as he knew, was not waiting for him to come over to his house that night. Blacksher testified that he had known Penn for a year and had never witnessed him smoke crack cocaine. Blacksher admitted on cross-examination that he never saw a towel with blood on it, never saw a nightshirt with blood on it, or blood anywhere in Penn's house.
Several Detroit police officers testified for the prosecution. Upon arriving at Penn's house, several of the officers testified that Penn appeared excited, distraught, or scared. Penn told one officer, Mark Barr, that "a man forced sex on him in his own house" and that the man had been armed with a screwdriver. Barr later elaborated on his testimony by indicating that Penn told him that Petitioner had held a knife to his neck, forced him into an upstairs bedroom, and forced him to have anal sex. When Officer Barr went inside of Penn's house, he discovered Petitioner behind a locked metal grate. Petitioner informed Officer Barr that he and Penn had been arguing, but denied sexually assaulting Penn.
Officer Allen Thomas' testimony was similar to Officer Barr's, except that he testified that Penn had told him that the man in his house had been armed with a gun. Officer Thomas searched Petitioner, but did not find a gun.
Officers Barr and Thomas both denied laughing at Penn or treating him insensitively. None of the police officers in this case ever saw a bloody towel in Penn's house. None of the officers saw any blood coming from Petitioner's lip, nor did they notice any banister having been ripped out of a wall.
Following his arrest, Petitioner made a statement to Officer Lori Smith of the Detroit Police Department's Sex Crimes Unit. Petitioner informed Officer Smith that he had known Penn since 1986, when Petitioner was working at 1300 Lafayette. Petitioner told Smith that he had run into Penn at a party store near East Seven Mile Road and Dequindre at about 11:00 p.m. on the night of the incident. Petitioner claimed that Penn was with a lady, although he didn't know her name. Petitioner told Smith that this woman asked him if he could obtain some crack cocaine for them. Penn also asked Petitioner if he could get them some cocaine. Penn gave Petitioner his address. Petitioner obtained some cocaine and went to Penn's house. Penn was there with the woman and an unidentified black male. Penn did not have enough money for the cocaine, but informed Petitioner that he would have the money within a half hour to an hour. Petitioner left Penn's house and went to his friend "J.B.'s" house, staying there until 1:30 a.m. When he returned to Penn's house, Penn asked for two more rocks or "dimes" of crack. Petitioner asked Penn if he had his money, to which Penn replied that he did not have all of it. Penn promised to get Petitioner his money. The unidentified man and woman each paid Petitioner for their rocks of cocaine.
Petitioner returned to "J.B's" house, remaining there until 2:00-2:30 a.m. Petitioner told Officer Smith that when he returned to Penn's house, the man and woman were arguing with Penn because "he was tripping out all on the floor." According to Petitioner, the man and woman left the house. Petitioner indicated that Penn still owed him $ 20.00. Petitioner followed Penn upstairs and discovered him trying to "hit" the stem of the crack pipe. Petitioner again asked Penn for his money. Petitioner noticed that Penn was "bullshitting", and became angry. Petitioner told Officer Smith that he asked Penn "How you gonna play me, you think I'm a motherfucking fool?" Petitioner told Officer Smith he picked up a champagne bottle, held it at his side, and asked for his money. Petitioner then pushed Penn onto the bed and slapped him across the top of the head. Petitioner grabbed Penn by the collar and slapped him again. Petitioner then grabbed a steak knife and again demanded his money. Petitioner acknowledged that he threatened to kill Penn. Penn begged Petitioner not to hurt him and promised to get him his money. Petitioner turned to pick up the champagne bottle and throw it at...
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