Pillette v. Berghuis, Civil No. 2:06-14511.

• Decision Date: 19 June 2009
• Docket Number: Civil No. 2:06-14511.
• Citation: 630 F.Supp.2d 791
• Parties: Jessie Wayne PILLETTE, Petitioner, v. Mary BERGHUIS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

630 F.Supp.2d 791

Jessie Wayne PILLETTE, Petitioner, v. Mary BERGHUIS, Respondent.

Civil No. 2:06-14511.

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

June 19, 2009.

COPYRIGHT MATERIAL OMITTED

Patricia A. Streeter, Ann Arbor, MI, for Petitioner.

Mark G. Sands, Michigan Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, District Judge.

Jessie Wayne Pillette, ("Petitioner"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, petitioner challenges his conviction by a jury for assault with intent to commit murder, M.C.L.A. 750.83; two counts of felonious assault, M.C.L.A. 750.82; and three counts of carrying a weapon with unlawful intent, M.C.L.A. 750.226. Because petitioner was denied the effective assistance of trial counsel by counsel's failure to call favorable witnesses, the petition for writ of habeas corpus is conditionally granted.

I. Background

On August 31, 2003, petitioner was involved in an altercation with several other persons at the trailer park where he resided. It was uncontested that petitioner was badly beaten by several persons. Prosecution witnesses claim that at some point petitioner retrieved a .20 caliber shotgun and a .22 caliber rifle from his trailer.

Quavis Roby claimed that when he went to petitioner's trailer, petitioner pointed the shotgun at him. Roby, however, was unable to tell whether petitioner tried to pull the trigger. Roby, in fact, conceded that he had "no clue" whether petitioner's fingers were even on the trigger.

Shannon Brower, whose preliminary examination testimony was admitted into evidence after she had been declared unavailable to testify at the trial, indicated that she had heard an audible "click" at the time that the shotgun was pointed at Roby. On cross-examination, Brower, admitted that she assumed that the "click" was from the trigger being pulled, but acknowledged that the sound could have come from a rock or something else. Brower further admitted that she did not actually see petitioner pull the trigger.

After pointing the weapon at Roby, petitioner went outside and purportedly pointed a .22 rifle at Melissa Siirila and told her he was going to kill her. Petitioner, however, did not shoot her. Several witnesses testified that they heard further gunshots, which they believe came from a .22 weapon.

Deputy Nicholas F. Cavanaugh later spoke to petitioner at the hospital, where he was taken after the incident. Cavanaugh described petitioner as "being highly intoxicated" and "irate", with contusions to his face. After being advised of his Miranda rights, petitioner told the detective that he had been jumped. He denied that he had a rifle. He said that no shots were fired.

Petitioner testified in his own behalf. Petitioner testified that several other persons began kicking and hitting him, after he got into an altercation with Dennis Washington. Quavis Roby hit petitioner in the side of his eye with a rock, before being pulled off of petitioner by petitioner's roommate. Washington began choking petitioner from behind. Petitioner was able to break free and grabbed a baseball bat. Petitioner then went to the trailer and grabbed the keys to lock it. Petitioner testified that he almost passed out when he got to the trailer. Petitioner then heard windows breaking, which caused him to go to the gun cabinet and retrieve the .20 gauge shotgun and load it. Petitioner grabbed the .22 caliber rifle, but did not have time to load it.

Petitioner said that he went outside the trailer and fired a warning shot. Petitioner heard a number of people screaming and noticed Kuzia standing in front of him with a baseball bat. Petitioner claimed that he put the gun back in the house and went over to Melissa Siirila to see if she was alright. Petitioner then went into the house to load the .22 rifle and brought it back in case the other men came back. Petitioner observed Kuzia running down the street hitting trailers with the bat. Petitioner loaded the gun to capacity and placed it back into the closet.

The police later responded to petitioner's trailer. Petitioner denied making a statement to the police, other than to tell them that he denied pointing or shooting a gun at anyone. Petitioner only fired one warning shot. Petitioner heard other shots being fired and later discovered that another .22 caliber firearm had been taken from his trailer. Petitioner denied that Roby ever came into the house to speak to him and further denied pointing a gun at Siirila.

Petitioner's conviction was affirmed on appeal. People v. Pillette, No. 254587, 2005 WL 1399312 (Mich.Ct.App. June 14, 2005); reconsideration den. August 9, 2005; lv. den. 474 Mich. 1068, 711 N.W.2d 305 (2006).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Pillette, No. 03-2953-FC (Otsego County Circuit Court, May 8, 2006). Petitioner then filed the instant habeas petition, which was held in abeyance while he completed post-conviction relief. Pillette v. Berghuis, No. 2006 WL 3084164 (E.D.Mich. October 27, 2006). Petitioner's subsequent post-conviction appeals were denied. People v. Pillette, No. 270513 (Mich.Ct.App. November 28, 2006); lv. den. 478 Mich. 866, 731 N.W.2d 751 (2007). On June 19, 2007, this Court granted petitioner's motion to reopen the habeas petition.

Petitioner seeks the issuance of a writ of habeas corpus on the following grounds:

I. THE DEFENDANT WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHEN HIS ATTORNEY, AS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL, FAILED TO OBJECT TO THE OFFICER'S TESTIMONY WHEN THE WITNESS WAS NOT QUALIFIED AS AN EXPERT BUT WAS ALLOWED TO TESTIFY ABOUT ISSUES WHICH AN EXPERT SHOULD HAVE TESTIFIED REGARDING BALLISTICS AND WEAPONS.

II. PROSECUTION VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT WHEN POST-ARREST SILENCE WAS USED AGAINST HIM AT TRIAL.

III. INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO CALL WITNESSES.

IV. VIOLATION OF SEQUESTRATION ORDER.

V. VIOLATION OF RIGHT TO CONFRONTATION.

VI. DEFENDANT MUST BE ALLOWED LEAVE TO RAISE ISSUE OF PROSECUTION'S FAILURE TO PRESENT SUFFICIENT EVIDENCE FOR COUNT ONE INTENT TO MURDER TO SATISFY THE DUE PROCESS STANDARD OF GUILT BEYOND A REASONABLE DOUBT WHERE APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO RAISE ISSUE.

VII. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE PROSECUTION FAILED TO PRESENT SUFFICIENT AMOUNT OF EVIDENCE FOR COUNT ONE INTENT TO MURDER TO SATISFY THE DUE PROCESS STANDARD OF GUILT BEYOND A REASONABLE DOUBT.

VIII. THE COURT MUST WAIVE THE GOOD CAUSE REQUIREMENT BECAUSE OF EXTERNAL FACTORS PREVENTED COUNSEL RAISING ISSUE ON APPEAL OF NEWLY DISCOVERED EVIDENCE MADE AVAILABLE TO THE DEFENDANT AFTER APPELLATE COUNSEL SUBMITTED DEFENDANT'S

BRIEF IN THE COURT OF APPEALS.

On July 28, 2008, this Court ordered an evidentiary hearing on petitioner's third ineffective assistance of counsel claim and appointed counsel to represent petitioner. The Court also ordered counsel to brief petitioner's claim of prosecutorial misconduct. Pillette v. Berghuis, No. 2008 WL 2945941 (E.D.Mich. July 28, 2008).

An evidentiary hearing was conducted on petitioner's third ineffective assistance of counsel claim on March 10, 2009, after which the Court directed the parties to submit post-hearing briefs. The parties further agreed to stipulate to the admission of Mary Barrette's deposition testimony.¹

II. Standard of Review

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.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409, 120 S.Ct. 1495. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11, 120 S.Ct. 1495.

III. Discussion

A. Ineffective assistance of counsel for failure to call witnesses.

For purposes of clarity, the Court will first discuss petitioner's third ineffective assistance of counsel claim, because this is the claim that the Court is granting petitioner relief on. Petitioner alleges that his trial counsel was ineffective for failing to call witnesses whom petitioner contends would have established that petitioner was innocent of the charges. Petitioner contends that these witnesses would support his testimony that he never pointed a weapon at Roby, Siriila, or any other person and that he only fired one gunshot into the air.

To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient...