Marcotte v. McCullick

Decision Date11 April 2022
Docket Number19-12113
PartiesRICHARD DONALD MARCOTTE, III, Petitioner, v. MARK W. MCCULLICK, Respondent.
CourtU.S. District Court — Eastern District of Michigan


MARK A. GOLDSMITH, United States District Judge.

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Richard Donald Marcotte, III (Petitioner) was convicted of assault with intent to commit great bodily harm less than murder, Mich. Comp. L. § 750.84 following a trial in Michigan's Kalamazoo County Circuit Court. In 2016, he was sentenced as a fourth habitual offender, Mich. Comp. L. § 769.12, to 25-50 years' imprisonment. In his pleadings, Petitioner raises claims concerning the conduct of the prosecutor and the effectiveness of trial counsel (Dkt. 1). Respondent filed an answer to the habeas petition contending that it should be denied (Dkt. 5). For the reasons set forth below, the Court concludes that Petitioner is not entitled to relief on his claims, and it denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.


Petitioner's conviction arises from his stabbing of another man during an altercation in Kalamazoo, Michigan in 2015. The Michigan Court of Appeals described the relevant facts, which are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

On June 5, 2015, the victim, Bradley Holmes, his family, and his girlfriend, Mary Shief, attended a Greek festival and a concert in Kalamazoo, where they met and shared a few beers while listening to the music with their friends, Stephanie Gernaat and her boyfriend Andrew Brinkert. While Holmes Shief, Gernaat, and Brinkert were heading back to the carport near an alleyway where their car was parked, Shief testified that Holmes stopped to admire a motorcycle owned by Geoffery Varner.[1] A fight soon erupted between Varner and Holmes. Defendant joined as the altercation grew more serious, stabbing Holmes multiple times.
Initially, a friendly conversation had sparked between Varner and Holmes as Varner sat on the bike. Holmes testified that “while [he] was just trying to compliment [Varner] about his bike” [Varner had] started saying provocative things about [Shief], ” who had been standing right next to Holmes' side listening. Shief testified that she did not hear exactly what was said, but that Holmes turned around and told Varner “to be respectful.” At first, Holmes stated, he had intended to ignore it. It was only after Varner made a sexually charged racial comment which “used the ‘N' word” about Shief, who was African American, that Holmes “got in [Varner's] face.” Subsequently, Holmes and Varner began to fight. As Holmes was on the ground wrestling with Varner, defendant[2] came up and kicked Holmes' side. Holmes also believed he was stabbed by defendant in the back while he and defendant were wrestling. Immediately after, Holmes said he thought he had been stabbed and asked Gernaat to call 911, which she did.
Kalamazoo Public Safety Officer Brian Boyer was the first officer on the scene after he had received a call from station one in the city of Kalamazoo and a man flagged him down to tell him of the stabbing. This man gave him directions on how to get there. Simultaneously, dispatchers were giving out the same information to others. When Boyer first arrived and parked his police car, [3]people were yelling that there were two suspects farther down to the west. Boyer first tried to get everything settled down and helped to keep people away from the victim. As soon as the other officers came on the scene, he started to delegate tasks (i.e. for people to render aid, to begin interviewing witnesses, etc.) Kalamazoo Public Safety Officer Kristie Hofer also received a call to respond to 251 East Michigan regarding a stabbing, labeling the nature of the call received as being “vague and chaotic.” Hofer testified that she searched for the weapon used to stab Holmes at the scene, but did not find one. Kalamazoo Public Safety Officer Jacob Vyverman testified that Varner agreed to be searched and informed him of having a small pocket knife in his coat pocket. Vyverman described the knife as a small, folding pocket knife. Vyverman testified that the pocket knife blade “was under three inches, and it was smaller than your average pocket knife that any man or woman would carry.” Vyverman stated that he opened Varner's pocket knife and conducted a thorough search, describing how the knife had been dry with no blood or foreign objects on it and how he had examined the hilt of the knife to ensure that it was dry. Vyverman testified that he then gave it back to Varner, who was ruled out as a suspect there and then.
When asked at trial if there was a specific length that a knife would have to be to cause Holmes' injuries, trauma and brain surgeon Dr. James Kraatz, [4] who treated Holmes, testified as follows:
The only thing that I could say with regard to that was that it would have to be long enough to penetrate through the muscle and through the skin, the subcutaneous fat, the fat that's under the skin, the underlying muscle, the muscle between the ribs and chest. And in general, in a person that has fairly normal amounts of body fat, that's gonna [sic] be probably two-and-a-half, three inches. It would have to be at least that long and you'd really be up to the hub if it was that. I would anticipate that it would be something that'd probably be a little bit longer than that.
During closing arguments, the prosecutor made the following statement to the jury:
So we have the officer saying the knife in [Varner's] pocket was less than three inches and the doctor saying the knife had to be at least three inches in order to cause the injuries.
I submit to you that the knife in [Varner's] pocket that was examined by the police is not large enough to have caused the injuries in this case.
Defense counsel immediately objected to these statements, arguing that the prosecutor was misstating Kraatz's testimony. Defense counsel stated, [I]t says two-and-a-half to three. If we're gonna . . . be fair, let's keep it fair here.” The trial court instructed the jury, “For the commentary, I simply advise the jury that you have your notes with regard to the evidence. What attorneys say may or may not comport with that. Trust your notes.”

People v. Marcotte, No. 332852, 2017 WL 3722004, at *1-*2 (Mich. Ct. App. Aug. 29, 2017) (footnotes in original).

Following his conviction and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals, essentially raising the same prosecutorial misconduct and ineffective assistance of trial counsel claim presented on habeas review. The Michigan Court of Appeals denied relief on those claims and affirmed his convictions. Id. at *2-*5. Petitioner also filed an application for leave to appeal in the Michigan Supreme Court raising the same claims. In standard orders, the Michigan Supreme Court denied leave to appeal, People v. Marcotte, 910 N.W.2d 274 (Mich. 2018), and denied Petitioner's motion for reconsideration. People v. Marcotte, 915 N.W.2d 366 (Mich. 2018).

Petitioner, through counsel, then filed his federal habeas petition. He raises the following claims:

I. He was denied due process because the prosecutor mischaracterized the evidence about the size of the knife during closing arguments.
II. Defense counsel was ineffective because counsel: (i) advised Petitioner not to testify on his own behalf, which precluded a self-defense instruction, (ii) never requested that Officer Boyer's dash-cam video be shown in its entirety, and (iii) failed to call Althea Simmons to testify.

Respondent filed an answer to the habeas petition contending that the petition should be denied because the claims lack merit. Petitioner filed a reply (Dkt. 7).


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state-court convictions. The statute provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [United States Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.' Mitchell v. Esparza, 540 U.S 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). [T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts' of petitione...

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