Ross v. McKee

• Decision Date: 23 August 2016
• Docket Number: Case No. 1:10-cv-288
• Parties: BRADFORD ROSS, # 204607, Petitioner, v. KENNETH McKEE, Respondent.
• Court: U.S. District Court — Western District of Michigan

BRADFORD ROSS, # 204607, Petitioner, v. KENNETH McKEE, Respondent.

Case No. 1:10-cv-288

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 23, 2016

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. An Emmet County Circuit Court jury convicted petitioner of second-degree murder for the killing of Timothy Harrington; the jury acquitted him of first-degree murder. The trial court judge summarized the events giving rise to petitioner's conviction as follows:

Defendant beat his roommate to death with a baseball bat on January 17, 2005. At trial, he claimed that he acted in self defense or that the killing was committed in the heat of passion.

* * *

Defendant admits killing the victim. The crime occurred in defendant's home. The victim was his roommate. Both of them were drinking at a bar earlier. The victim was highly intoxicated. Defendant says he had just three beers and was not intoxicated.

The victim was ejected from the bar for his offensive, drunken conduct towards other patrons. Defendant left with him, and once outside, Defendant says the victim hit him and gave him a bloody nose. They then walked together the short distance to Defendant's house. Once inside, Defendant cleaned up his bloody nose in the bathroom and then headed for his bedroom.

On the way, he encountered the victim again in the living room. He says the victim pushed him down, and then came at him with a baseball bat. Defendant was able to grab the bat, and he swung it and hit the victim, knocking him down to the couch. Then, defendant says the victim got up, and Defendant hit him again. Defendant claimed not to remember exactly how many additional blows were struck, but admits the victim was dead afterwards.

Defendant then spent some time attempting to clean up the house. The next morning, his friend, Jeff Berry, arrived to drive him to work. Berry came into the house and Defendant told him what had happened. They consumed some beer, and then took the bat in Berry's van and disposed of it in a river in a remote location. Afterwards, they drove around for some time and consumed more beer.

Berry then dropped Defendant off at his house with the plan that Defendant would clean up the house further, wrap up the body, and Berry would return so that they could take the body somewhere to dispose of it. After they parted, Barry apparently decided to discontinue participating in the cover up, and instead he called the police.

When the police arrived at Defendant's house they found the body wrapped in plastic, a tarp, and duct tape. An autopsy of the victim was performed by Dr. David Start, a forensic pathologist. Dr. Start testified that the victim had injuries to both forearms which were consistent with "defensive type injuries." He also testified that the victim suffered multiple blows to the head, which resulted in multiple skull fractures and injury to the brain. He testified that there were at least five skull fractures. He could not say exactly how many blows were struck, he did state that "there [were] more than four."

(1/14/09 Op., 1, 5-6, found in Michigan Court of Appeals record, ECF No. 25).

Petitioner was sentenced to 40-to-60 years' imprisonment. After unsuccessful efforts to overturn his conviction and sentence in the Michigan courts, petitioner brought this habeas corpus proceeding. Petitioner seeks relief on the following grounds:

I. The evidence was insufficient to support the jury's verdict finding petitioner guilty beyond a reasonable doubt of second-degree-murder.

II. The prosecutor withheld evidence of bloodstains on the kitchen floor in violation of petitioner's rights under the Fourteenth Amendment's Due Process Clause.

III. Petitioner's rights under the 5th and 14th Amendment were violated when the police questioned him after he requested counsel.

IV. Destruction of a police officer's notes violated petitioner's rights under the Fourteenth Amendment's Due Process Clause.

V. Petitioner's trial counsel was ineffective because he failed to hire a pathologist or private investigator, failed to object to a portion of the prosecutor's closing argument, failed to move to dismiss the bindover on the first-degree murder charge, and failed to move for a change of venue.

VI. Grounds petitioner raised in his Rule 6.500 motion seeking post-conviction relief

A. Destruction of exculpatory evidence deprived petitioner of the opportunity to present a defense and enabled the prosecution to mislead the jury and obtain a conviction in violation of petitioner's rights under the Fourteenth Amendment's Due Process Clause.

B. Prosecutorial misconduct in the knowing use of perjured testimony violated petitioner's rights under the Fourteenth Amendment's Due Process Clause.

C. Prosecutorial misconduct in paying Mr. Berry and allowing him to enter petitioner's home and remove exculpatory evidence.

D. Prosecutorial misconduct in violating Rule 803(5) of the Michigan Rules of Evidence and an abuse of the trial court's discretion in allowing hearsay denied petitioner a fair trial in violation of his Fourteenth Amendment rights.

E. Prosecutorial Misconduct in eliciting testimony regarding petitioner's time at a treatment center deprived petitioner of a fair trial in violation of his Fourteenth Amendment rights.

F. The trial court committed instructional error by not giving a cautionary instruction concerning the testimony of an accomplice.

G. Ineffective assistance of trial counsel in failing to subject the state's evidence to meaningful adversarial testing. Ineffective assistance of appellate counsel in failure to raise the issues on direct appeal the petitioner later raised in his 6.500 motion.

H. The cumulative effect of errors deprived petitioner of a fair trial.

(Am. Pet. at 6-10C, ECF No. 7, PageID.58-64).

All grounds that petitioner raised on direct appeal (Grounds I-V) were rejected by the Michigan Court of Appeals for lack of merit. The grounds that petitioner raised in his Rule 6.500 motion were generally rejected because petitioner had not shown good cause for failure to raise the issues in his direct appeal. The issues that appeared in petitioner's Rule 6.500 motion that had already been raised and rejected by the Michigan Court of Appeals were denied on that basis. Respondent argues that Grounds I and V should be denied for lack of merit, and that all other grounds raised by petitioner are barred by procedural defaults, not overcome by showings of cause and prejudice or actual innocence. (Answer, ECF No. 12).

Upon review, the Court finds that the grounds raised by petitioner are without merit.¹ A judgment will be entered dismissing the petition with prejudice.

Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), govern the scope of the Court's review of this matter. See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA "dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Felkner v. Jackson, 562 U.S. 594, 597 (2011) (per curiam); Renrico v. Lett, 559 U.S. 766, 773 (2010). "AEDPA requires heightened respect for state court factual and legal determinations." Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). Section 2254(e)(1) states: "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." "State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence." Davis v. Ayala, 135 S. Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (("[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.") (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federalhabeas "retrials" and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits "using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012) (per curiam).

The AEDPA standard is difficult to meet "because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S. Ct. 10, 16 (2013); Metrish v. Lancaster, 133 S. Ct. 1781, 1786-87 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). "Section 2254(d) reflects that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal." Harrington, 562 U.S. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication "(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S. Ct....