Patterson v. Davis, CASE NO. 2:08-CV-14399

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: HONORABLE ARTHUR J. TARNOW
• Parties: KENNETH PATTERSON, Petitioner, v. BARRY DAVIS, Respondent.
• Docket Number: CASE NO. 2:08-CV-14399
• Decision Date: 14 April 2016

KENNETH PATTERSON, Petitioner,
v.
BARRY DAVIS, Respondent.

CASE NO. 2:08-CV-14399

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 14, 2016

HONORABLE ARTHUR J. TARNOW

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Kenneth Patterson ("Petitioner") was convicted of first-degree murder, MICH. COMP. LAWS § 750.316(1)(a), and receiving stolen property, MICH. COMP. LAWS § 750.535(3)(a), following a jury trial in the Macomb County Circuit Court. He was sentenced to concurrent terms of life imprisonment without the possibility of parole and one to five years imprisonment in 2005. In his original and supplemental petition, he raises claims concerning the sufficiency of the evidence, the effectiveness of trial counsel relative to a jury instruction, the admission of evidence from a non-testifying witness and the non-harmlessness of that alleged error, the effectiveness of appellate counsel, the effectiveness

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of trial counsel relative to not calling a police officer and not introducing a police report concerning the victim's behavior and not properly objecting to the trial court's exclusion of his videotaped interrogation, and the trial court's exclusion of his videotaped interrogation. For the reasons set forth herein, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from a 2004 incident in which he beat his ex-girlfriend, Suzanne Williams, to death, dumped her body in a drainage ditch, and was arrested a few days later while driving her car. At trial, witnesses testified that the couple dated and lived together for a period of time, but had a tumultuous relationship. At one point, the victim obtained a personal protection order against Petitioner, which she later terminated. The victim believed that Petitioner was stalking her and did not want her to see other men.

The victim's co-workers testified that they last saw her at work, a Harley Davidson store, on Friday, December 3, 2004. She was scheduled to work the next day, but did not appear. The victim's friend, Jerald King, testified that he was supposed to meet her for dinner on December 3, 2004, but she did not show up. The witnesses called the victim,

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but she did not answer. They drove by her apartment and noticed that her car was missing. The victim's co-workers did not know her to carry a weapon.

Petitioner's mother testified that she saw the victim's car at Petitioner's trailer home on December 3, 2004. When she saw Petitioner two days later, he acted normally. Petitioner and the victim had a relationship and he often used the victim's car.

Petitioner's co-workers testified that they saw Petitioner on the weekend in question and did not notice anything out of the ordinary in his behavior. One co-worker drove Petitioner home from work on December 4, 2004 and Petitioner seemed tired and slept part of the way. Another co-worker saw him at a hockey game that night.

A man named Keith Thompson found the victim's body in a ditch near some old stores near 14 Mile Road and VanDyke in Sterling Heights on December 5, 2004. Thompson testified that he was walking in the area when he saw a woman in a bra and underwear lying in the ditch and called the police. When police arrived, they noticed blood near a parking lot curb and on dried leaves near an embankment. They also found a Harley Davidson earring in the parking lot.

Later that same day, one of the victim's co-workers learned that a woman matching the victim's description had been found. She called the police and gave them a description. She told them that she had been unable to contact the victim and that the victim's car was missing. The police learned that the victim's car had OnStar and were

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able to track its location to Allen Park. They conducted a traffic stop of the car and found Petitioner to be the driver. Petitioner told them it was his girlfriend's car. He was subsequently arrested.

Police officers searched Petitioner's trailer and truck. An officer testified that the police found blood stains on the porch, the concrete walkway, the hallway wall, a door and door handle, the master bedroom door, the master bedroom wall, blinds, window, and bed, and the bathroom vanity, as well as in Petitioner's truck and the victim's car. Some samples taken from Petitioner's trailer matched the victim's DNA. Samples from the bed matched Petitioner and the victim.

The medical examiner testified that the victim died from blunt force head trauma and suffered multiple injuries. She had lacerations down to the bone from two impacts to the back of her head, one of which would have been incapacitating. She had a fractured skull and bleeding on the brain. She had a bruised forehead from a separate impact, which may have occurred from a fall to the ground. She also had bruised, cut lips and a chipped front tooth consistent with a punch to the face, a bruised knee consistent with a fall, and a defensive wound on her left arm. A baseball bat could have inflicted the injuries. The victim died before her body was left in the ditch.

Petitioner testified in his own defense at trial. He admitted killing victim, but claimed self-defense. According to Petitioner, he and the victim argued on Wednesday,

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December 1, 2004. She came to his trailer around 6:00 p.m. on December 3, 2004. They drank and talked. After they went to the bedroom to lay down, the victim accused him of giving her crabs. He left the bedroom and went into the kitchen to clean up and the victim went into the living room to look at CDs. Petitioner then told the victim that their relationship was over, but she disagreed. Petitioner continued to clean and told her to leave. When he walked over to grab her, she attacked him. He wanted to leave, but she hit him in the back of the head. He turned around and hit her in the mouth. The victim then threatened to blow him away and reached into her pocket. Petitioner was against the door and grabbed a nearby bat. When the victim came toward him, he hit her on the head with the bat. The victim fell. Petitioner saw that she had a knife in her hand and she tried to jab him. He picked up the bat and hit her again. She fell down. Petitioner saw blood and asked if she was alright. He got a sheet from the middle bedroom and put it on her head. He got some change and went to a pay phone. It was in use so he returned to the trailer. He pulled the victim to the back bedroom to make her comfortable. Her shirt ripped when he tried to pick her up. He went to get ice and when he returned, he noticed that she was not breathing. Petitioner testified that he sat in the living room for 45 minutes. When he went back into the bedroom, the victim was purple. He returned to the living room to decide what to do.

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Petitioner cleaned his head with a washcloth. He then drove the victim's car to the Native American Center near his home and walked back to the trailer. He moved the victim onto a blanket. Her jeans came down, but she was too heavy to move to fix them, so he pulled them off. He put the victim in the flatbed of his truck and drove to the 14 Mile and VanDyke near a closed business. He removed the victim from the truck, but slipped on the hill. The victim's body rolled down the embankment and Petitioner heard a splash. He picked up the blanket, got into his truck, and drove home. He thought about calling the police, but was afraid. He cleaned up the blood and went to sleep. Petitioner never found a gun. He said he found a knife, but it was not the knife the victim used to strike at him. He drove the victim's car to work on Saturday, December 4, 2004, but a co-worker drove him home. He took a nap, then went to a hockey game. On Sunday, December 5, 2004, his mother came by and he used her cell phone to try to find an attorney, but was unsuccessful. On Monday, December 6, 2004, he drove his truck to work and where he left the victim's car. He switched cars and was on his way to visit friends when he was stopped by the police and arrested.

At the close of trial, the trial court instructed the jury about the elements of the charged offenses, the lesser offenses of second-degree murder and manslaughter, the concepts of premeditation and deliberation, lawful self-defense, and other pertinent matters. There were no objections to the instructions as given. Following deliberations,

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the jury convicted Petitioner of first-degree murder and receiving stolen property. The trial court subsequently sentenced him to concurrent terms of life imprisonment without parole and one to five years imprisonment.

Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the sufficiency of the evidence and the effectiveness of trial counsel relative to the jury instructions. The court denied relief on those claims and affirmed his convictions. People v. Patterson, No. 266945, 2007 WL 1160179 (Mich. Ct. App. April 19, 2007) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same claims. The court denied leave to appeal in a standard order. People v. Patterson, 480 Mich. 890, 738 N.W.2d 722 (Sept. 24, 2007).

Petitioner thereafter filed his initial federal habeas petition, which was dated on September 23, 2008. He raised claims concerning the sufficiency of the evidence, the effectiveness of trial counsel relative to a jury instruction, the admission of evidence from a non-testifying witness, and the non-harmlessness of that alleged error. On March 12, 2009, the Court determined that the petition contained claims which had not been...