Marsack v. Howes, No. 00-10395-BC.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtLawson
Citation300 F.Supp.2d 483
Decision Date14 January 2004
Docket NumberNo. 00-10395-BC.
PartiesRichard MARSACK, Petitioner, v. Carol HOWES, Respondent.
300 F.Supp.2d 483
Richard MARSACK, Petitioner,
v.
Carol HOWES, Respondent.
No. 00-10395-BC.
United States District Court, E.D. Michigan, Northern Division.
January 14, 2004.

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Norris J. Thomas, State Appellate Defender Office, Detroit, MI, for Petitioner.

Bethany L. Scheib, Vincent J. Leone, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

LAWSON, District Judge.


Petitioner Richard Peter Marsack, a state prisoner currently confined at the Lakeland Correctional Facility in Coldwater, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of first-degree murder following a jury trial conducted in Kalkaska County, Michigan and was sentenced to life imprisonment without the possibility of parole. The petitioner asserts that he is entitled to habeas relief because the prosecution failed to present sufficient evidence that he committed the murder and because the police obtained his consent to conduct a gun powder residue test and to search his person and home in violation of his right to counsel. The Court disagrees and will deny the petition.

I.

The petitioner's conviction arises from the shooting death of his work supervisor, Terrence Barr, in Grayling, Michigan on July 13, 1993. The Michigan Court of Appeals summarized the relevant facts as follows:

Both Barr and defendant were employees of the state's Department of Natural Resources (DNR) in the Parks and Recreation Division. Defendant was a water sites operator in the Gaylord DNR office. Barr was the supervisor for the Gaylord and Grayling offices.

On the day of the shooting, Barr left home for work at approximately 6:45 a.m. This was Barr's normal departure time for work in the summer. At approximately 7:00 a.m., Barr's body was found in a ditch off to the side of Wilcox Bridge Road. At a later autopsy, it was determined that Barr had been fatally shot in the chest by a 12-gauge shotgun slug. His truck was parked along the side of the road with a fallen tree obstructing traffic on the road. Witnesses testified that a fallen tree had been lying across the road at approximately 6:15 a.m., at 6:25 a.m., and at 6:50 a.m. There was evidence of wood chips and shavings at the base of the tree stump, indicating that the tree had been intentionally cut down with an ax. Some of these same witnesses observed seeing a green DNR truck in the area before the shooting.

On the day of the shooting, defendant was scheduled to have a meeting with Barr. The day before the shooting, defendant told a fellow employee that he intended to skip work in order to avoid having the meeting with Barr. Defendant, on several occasions, informed other employees that he thought Barr was out to get him fired.

Because defendant was scheduled to meet with Barr on the day of the shooting, the police wanted to talk with defendant. A Crawford County sheriff's deputy and a detective sergeant with the Michigan State Police located defendant at a tire store at 3:10 p.m. on the afternoon of the day of the shooting. Miranda 1 warnings were not given at this time. The officers identified themselves and asked defendant about his meeting with Barr that morning. When asked why he did not attend the meeting, defendant simply stated, "I just didn't go." When asked if defendant owned any guns, defendant responded that he did not own guns. Upon further inquiry, defendant stated that he had owned

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guns in the past, but that he presently did not own any firearms.

1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The officers then asked defendant if he was willing to answer more questions at the police station since a small crowd had gathered outside the tire store. Defendant agreed and followed the officers in his DNR vehicle. At the station, the officers told defendant that many people had stated that he, in fact, did own several guns. At this point, defendant stated, "I'm no match for you. I want to talk to an attorney." The questioning by the officers then stopped.

At this point, the officers wanted defendant's permission to search his clothing and home and to perform an atomic absorption test to check for gunpowder residue. Defendant was informed of his Miranda rights and was read three consent to search forms. All three consent forms were signed by defendant. At no point was defendant in custody or placed under arrest.

Defendant accompanied the officers to his home in an unmarked police car. Defendant was wearing prison clothing because his personal clothing was being analyzed by the police. Defendant was not placed in handcuffs or otherwise secured within the police vehicle. Defendant was free to move about his home during the search. During the search of the home, the officers observed a gun safe in the basement of the house. The safe was empty; however, there were dust prints on the floor of the safe indicating that guns had been stored in the safe in the past. The officers found .22 caliber shell casings and an ax inside defendant's personal vehicle. Neither the shell casings nor the ax were related to the shooting. No evidence was seized at defendant's home, nor was any evidence found on defendant's clothing. The results of the atomic absorption test were never admitted into evidence at trial. The test was ineffective anyway because defendant had washed his hands before the test.

The ax used to cut down the tree was found near the scene of the shooting. It was later identified by defendant's son as belonging to defendant. The murder weapon was found several months after defendant's arrest in a wooded area, about twenty feet from the road, on the property of defendant's neighbor. It was wrapped in a camouflage case and a box of shells was found with it. Gun registration records established that defendant purchased the shotgun in 1989.

On July 15, 1993, defendant purchased a one-way airline ticket to Detroit. Police learned of defendant's intentions after questioning defendant's friend. Defendant had been under surveillance since July 13, 1993. Upon belief that defendant was attempting to flee the area, the Wayne County Sheriff's Office was notified and deputies arrested defendant as a homicide suspect when he landed at Detroit Metropolitan Airport on July 15, 1993.

On July 15, 1993, the police executed a search warrant for defendant's home. Seven guns were found in a deer blind on defendant's property. A shotgun was not recovered; however, an interchangeable barrel was found that fit the murder weapon.

People v. Marsack, 231 Mich.App. 364, 366-70, 586 N.W.2d 234, 235-37 (1998).

Following his conviction and sentencing, the petitioner filed a direct appeal in the Michigan Court of Appeals raising several claims of error, including the claims raised in the present petition. The Michigan Court of Appeals affirmed the conviction and sentence. People v. Marsack, 231 Mich.App. 364, 586 N.W.2d 234 (1998). The petitioner then filed an application for leave to appeal in the Michigan Supreme Court, which was denied. People v. Marsack,

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460 Mich. 869, 598 N.W.2d 348 (1999). The petitioner also filed a petition for a writ of certiorari in the United States Supreme Court, which was similarly denied. Marsack v. Michigan, 528 U.S. 957, 120 S.Ct. 387, 145 L.Ed.2d 302 (1999).

The petitioner, through legal counsel, filed the present petition for a writ of habeas corpus on October 13, 2000 asserting that there was insufficient evidence that he committed the murder, and that the police obtained consent to conduct a gun powder residue test and to search his person and home in violation of his right to counsel. The respondent filed an answer to the petition on March 20, 2001 asserting that the petition should be denied for lack of merit.

II.

The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus. See Wiggins v. Smith, ___ U.S. ___, ___, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 335, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.

As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

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). Therefore, federal courts may not upset a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 123 S.Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); internal quotes...

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15 practice notes
  • Charleston v. Woods, Case No. 4:16-12696
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 9, 2018
    ...Cir. 2014). The fact that petitioner fled the scene afterwards also supports a finding of premeditation. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). Finally, pursuant to the doctrine of transferred intent, petitioner could be liable for the victim's death, even if......
  • Hawthorne v. Rivard, Civil No. 2:12-CV-13243
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 26, 2013
    ...that Petitioner and Neal ambushed Mumford in his home supports a finding of premeditation and deliberation. See Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). The victim received eight gunshot wounds. ThePage 11firing of multiple gunshots at the victim was sufficient to estab......
  • Schneider v. Booker, CASE NO. 2:10-CV-15017
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 10, 2012
    ...flee and elude the police after the killing would also support a finding of premeditation and deliberation. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). Additionally, the fact that petitioner did not attempt to seek medical help for the victim after being arrested ......
  • Lambeth v. Rivard, CASE NO. 2:10-CV-14353
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 12, 2011
    ...activities would support a finding of premeditation and deliberation and negate any self-defense argument. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). There was also evidence that petitioner attempted to flee Grand Rapids, as the police arrested him leaving town w......
  • Request a trial to view additional results
15 cases
  • Charleston v. Woods, Case No. 4:16-12696
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 9, 2018
    ...Cir. 2014). The fact that petitioner fled the scene afterwards also supports a finding of premeditation. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). Finally, pursuant to the doctrine of transferred intent, petitioner could be liable for the victim's death, even if......
  • Hawthorne v. Rivard, Civil No. 2:12-CV-13243
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 26, 2013
    ...that Petitioner and Neal ambushed Mumford in his home supports a finding of premeditation and deliberation. See Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). The victim received eight gunshot wounds. ThePage 11firing of multiple gunshots at the victim was sufficient to estab......
  • Schneider v. Booker, CASE NO. 2:10-CV-15017
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 10, 2012
    ...flee and elude the police after the killing would also support a finding of premeditation and deliberation. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). Additionally, the fact that petitioner did not attempt to seek medical help for the victim after being arrested ......
  • Lambeth v. Rivard, CASE NO. 2:10-CV-14353
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 12, 2011
    ...activities would support a finding of premeditation and deliberation and negate any self-defense argument. See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). There was also evidence that petitioner attempted to flee Grand Rapids, as the police arrested him leaving town w......
  • Request a trial to view additional results

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