Olger v. Horton

• Decision Date: 13 December 2022
• Docket Number: 1:21-cv-619
• Parties: KIEFER DERIK OLGER, Petitioner, v. CONNIE HORTON, Respondent.
• Court: U.S. District Court — Western District of Michigan

KIEFER DERIK OLGER, Petitioner,
v.
CONNIE HORTON, Respondent.

No. 1:21-cv-619

United States District Court, W.D. Michigan, Southern Division

December 13, 2022

OPINION

Jane M. Beckering United States District Judge

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Kiefer Derik Olger is incarcerated with the Michigan Department of Corrections at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. On November 23, 2015, following a four-day jury trial in the Ingham County Circuit Court, Petitioner was convicted of two counts of delivery of a controlled substance, less than 50 grams, in violation of MICH. COMP. LAWS § 333.7401(2)(a)(iv), and one count of delivery of a controlled substance causing death, in violation of MICH. COMP. LAWS § 750.317a. On January 6, 2016, the court sentenced Petitioner as a second habitual offender, MICH. COMP. LAWS § 769.10, to prison terms of 4 to 30 years for one count of delivery, 5 to 30 years for the other count of delivery, and 18 years, 4 months to 33 years, 4 months for delivery causing death. All of Petitioner's sentences were ordered to run concurrently. (J. of Sentence, ECF No. 9-15, PageID.988.)

On July 21, 2021, Petitioner, who is represented by counsel in this action, filed his habeas corpus petition raising eight grounds for relief, as follows:

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I. There was insufficient evidence that Petitioner delivered the heroin that caused Jonathan Singer's death, in violation of the Due Process Clause of the Fourteenth Amendment

II. Trial counsel was constitutionally ineffective for failing to (A) prepare for trial, and (B) object to judicial bias

III. The trial judge displayed bias or the appearance of bias against Petitioner by demeaning his attorney and expressing skepticism about the credibility of Petitioner's trial testimony, in violation of the Due Process Clause of the Fourteenth Amendment

IV. Petitioner's convictions for both delivery of a controlled substance causing death, under MICH. COMP. LAWS § 750.317a, and delivery of less than 50 grams of a controlled substance, under MICH. COMP. LAWS § 333.7401(2)(a)(iv), violate the Double Jeopardy Clause

V. The prosecutor mischaracterized Deputy William Lo's testimony on a material issue, in violation of the Due Process Clause of the Fourteenth Amendment.

VI. Trial counsel was constitutionally ineffective for (A) failing to object to the prosecutor's mischaracterization of Deputy Lo's testimony, and (B) failing to impeach Police Chief Bruce Ferguson with false statements he made in his affidavit for search warrant.

VII. The state trial court imposed a harsher sentence based on Petitioner's exercise of his right to testify and admit guilt on one of the charges, in violation of the Due Process Clause of the Fourteenth Amendment.

VIII. Appellate counsel was constitutionally ineffective for failing to raise habeas claims V-VII on direct appeal.

(Pet., ECF No. 1, PageID.5-11.) Respondent asserts that Petitioner's grounds for relief are meritless.^[1] (ECF No. 8.) For the following reasons, the Court concludes that Petitioner has failed

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to set forth a meritorious federal ground for habeas relief and will, therefore, deny his petition for writ of habeas corpus.

Discussion

I. Factual Allegations

The court of appeals' opinion regarding the convictions at issue does not describe the facts underlying Petitioner's convictions, only noting that they arise “from the death of Jonathan Singer, who overdosed on heroin on September 12, 2013.” People v. Olger, Nos. 331705, 331876, 2017 WL 2199896, at *1 (Mich. Ct. App. June 27, 2017). The Court supplements this fact with relevant information from the trial court record below.

On September 11, 2013, Singer, Austen Connelly, and Jesse Trim decided to go to the Whiskey Barrel in East Lansing, Michigan. (Trial Tr. II, ECF No. 9-9, PageID.742.) On the way, they stopped at Petitioner's house. (Id.) Jesse Trim testified that he had purchased drugs from Petitioner in the past. (Id.) He testified that Petitioner had sold him ecstasy and mushrooms, and had also offered heroin, which Petitioner sold packaged in “lottery tickets.” (Id., PageID.743.) On September 11, 2013, all three individuals purchased ecstasy, or “molly,” from Petitioner. (Id., PageID.730.) Trim also saw Petitioner and Singer go into an adjoining room. (Id., PageID.744.) When they left Petitioner's house, Trim saw Petitioner and Singer shaking hands. (Id.)

Singer, Connelly, and Trim then went to the Whiskey Barrel and waited in line for about 10 minutes before Trim realized he did not have his driver's license. (Id.) Trim and Singer, along with Trim's girlfriend, Lindsey O'Leary, left, and Trim drove Singer's car because Singer had

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already been drinking. (Id., PageID.719.) The search for Trim's license was unsuccessful, and they returned to the Whiskey Barrel. (Id., PageID.745.)

Shortly after, Singer and Trim decided to go back to Trim's house. (Id.) On the way, they stopped at a gas station. (Id.) Right before they stopped, Singer had told Trim that he had heroin. (Id.) Singer went into the gas station bathroom, and Trim stayed outside to smoke a cigarette. (Id.) Trim testified that Singer was inside for a “good 10 minutes.” (Id.) Trim went inside to the bathroom and passed Singer on the way. (Id.) Trim testified that Singer did not even recognize him, and that Singer “was like a zombie” with his eyes shut. (Id., PageID.745-746.) Trim found “two empty lottery tickets” and a powder that he believed was heroin inside the bathroom. (Id., PageID.745.) He took the lottery tickets back to the car and confronted Singer. (Id.)

Singer and Trim then returned to Trim's house. (Id., PageID.746.) As soon as they got inside, Singer told Trim that he had forgotten his phone in the car. (Id.) When Singer came back from the car, “he was a lot more messed up.” (Id.) Trim testified that Singer “could barely pronounce his words” and “wasn't walking nearly the same.” (Id., PageID.747.) Trim and Singer sat down and talked, but Singer was “falling out of consciousness.” (Id.)

Meanwhile, O'Leary called Trim, who told her what was going on with Singer. (Id., PageID.720, 747.) Trim told O'Leary that he “thought John was overdosing.” (Id., PageID.720.) Trim panicked and made other calls, including one to Petitioner “to ask what to do.” (Id., PageID.748.) Trim thought about calling the police, but was persuaded not to by Connelly, who had returned from the bar by that time. (Id., PageID.749.) Connelly testified that he thought Singer had recovered and was breathing fine after he and Trim placed a warm towel on Singer's head and performed CPR. (Id., PageID.733.) Eventually, Trim and Connelly both fell asleep. (Id., PageID.734, 749.)

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The next morning, Trim woke up early for a random drug test for his probation. (Id., PageID.749.) He then went to class. (Id.) When Trim returned home, he was unable to wake up both Connelly and Singer. (Id., PageID.750.) Connelly eventually woke up. (Id.) When Trim realized Singer would not wake up, he ran downstairs to find his father. (Id.) Charles Trim testified that his son said, “I think John is choking or something. He can't breathe.” (Trial Tr. I, ECF No. 98, PageID.708.) Charles Trim went upstairs and found that Singer was unresponsive. (Id.) He was unable to locate Singer's pulse and began CPR. (Id.) Singer was sitting on the floor, his back against the couch, and was “pale” and “cold.” (Id., PageID.708-709.) Charles Trim told the others to call 911. (Id., PageID.708.)

Singer was pronounced dead at 10:53 a.m. on September 12, 2013. (Id., PageID.696.) Dr. Patrick Cho, a deputy medical examiner, testified that there were “very high levels of morphine” in Singer's blood. (Trial Tr. III, ECF No. 9-10, PageID.798.) Dr. Cho testified that the presence of morphine in Singer's urine was indicative of heroin use. (Id., PageID.799.) Dr. Cho testified that although numerous drugs were found in Singer's system, the morphine was the primary cause of death. (Id.)

In the weeks that followed Singer's death, Connelly and Trim received communications from Petitioner. Connelly testified that Petitioner would call him “four or five times a day for, like, a week.” (Trial Tr. II, ECF No. 9-9, PageID.737.) He also received text messages from Petitioner. (Id.) Connelly did not answer any of the texts or calls. (Id.) Trim testified that he remembered his conversation with Petitioner “like it was yesterday,” and that it was “weird that [Petitioner] called” because Trim only knew of Petitioner as a “drug dealer.” (Id, PageID.751.) Petitioner asked Trim about the investigation into Singer's death and kept asking if Connelly was going to tell. (Id.) Petitioner sounded worried and asked if Trim and Connelly had been talking to the police. (Id.)

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About a month later, on November 12, 2013, Deputy William Lo, who was working in an undercover capacity with the Tri County Metro Narcotics team, met Petitioner to purchase heroin from him. (Trial Tr. III, ECF No. 9-10, PageID.787.) Lo told Petitioner that he had $80.00 to spend and was looking to buy heroin. (Id., PageID.788.) Petitioner responded that he “could try to get a hold of somebody but he needed a telephone because his wasn't currently working.” (Id.) Lo and Petitioner then drove to meet a man referred to as “Tone.” (Id.) Lo gave the money to Petitioner, who made contact with Tone. (Id., PageID.789.) Lo remained in the car during the transaction. (Id.) Petitioner then returned with “a folded piece of cut lottery paper” containing heroin. (Id.)

Lo testified that before the purchase, he and Petitioner had made small talk during the drive. During this conversation, Petitioner mentioned Singer's death. Lo testified that Petitioner began discussing a person named “John” who had overdosed. (Id....