Schultz v. Howes

• Decision Date: 17 May 2014
• Docket Number: Case No. 12-cv-10096
• Parties: GORDON DEVERE SCHULTZ, Petitioner, v. CAROL HOWES, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

GORDON DEVERE SCHULTZ, Petitioner, v. CAROL HOWES, Respondent.

Case No. 12-cv-10096

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 17, 2014

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING PETITION

FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

This is a petition for a writ of habeas corpus. Petitioner Gordon Devere Schultz is presently confined at the Lakeland Correctional Facility in Coldwater, Michigan. He filed a pro se application for a writ of habeas corpus under 28 U.S.C. § 2254. Schultz challenges his conviction for first-degree premeditated murder, Mich. Comp. Laws. § 750.316(1)(a); and aggravated stalking, Mich. Comp. Laws § 750.411i. For the reasons stated below, the application for writ of habeas corpus will be denied.

BACKGROUND

Schultz was convicted of the above charges following a jury trial in the Isabella County Circuit Court. The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

The evidence showed defendant and his former girlfriend and victim Becky Sue Macdonald, had a violent and abusive relationship. Evidence also showed Macdonald received a great deal of the abuse, often exhibiting bruises on her face and arms and red marks on her neck where defendant tried to choke her. Based on the information given by Macdonald to the various witnesses (friends, family, and police officers), defendant would sometimes beat her if she (1) left the house, (2) talked on the phone, and (3) argued.

[T]here was testimony presented that days before the murder defendant was angry because the victim allegedly burned his clothes and a pair of glasses he needed for work, and she removed items from his home. However, we cannot conclude these actions would cause a reasonable person to lose control. Further, testimony from defendant's friend, Lee Blalock, indicated that she removed the clothes from the home on October 17, 2005, the day after defendant's arrest, when he was released on bond. This was several weeks before Macdonald's reported disappearance on November 11, 2005. Indeed, Macdonald was also asked about burning defendant's clothing at the preliminary examination on October 27, 2005, and thus, this "provocation," too, happened well before her death.

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[M]acdonald told several witnesses that she feared defendant and that he had threatened to kill her. Further, defendant also told three witnesses that essentially he wanted to kill Macdonald to prevent her from testifying in his domestic violence trial. Defendant told one witness that he had dug a hole for Macdonald's grave. He also told two witnesses that he was driving a rental car because "you can't fit somebody in the back of a hatchback."

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[I]n addition, defendant told his cellmate that he had called Macdonald prior to the murder and she had agreed to walk out of the house to meet him. Although medical experts could not state conclusively how Macdonald died, they agreed it was asphyxiation, and defendant himself seemed to indicate that he choked her to death. Dr. Joyce DeJong, a forensic pathologist, explained that, with manual strangulation, while the victim will pass out after 30 seconds of constant pressure, it takes minutes for death to occur, though it can be longer if the victim struggles. Therefore, defendant would have had time to take a second look at what he was doing. Finally, regarding defendant's conduct after the murder, not only did he burn the body to hide DNA evidence and bury the body in a remote location, he also hired a person he thought was a hit man to kill Macdonald's daughter in an attempt to thwart the ongoing investigation into Macdonald's disappearance and he asked the hit man to go to the burial site and do whatever was necessary to ensure that Macdonald's body could never be found.

People v. Schultz, No. 283669, 2009 WL 1830742, at *2-3 (Mich. Ct. App. June 25, 2009).

Schultz's conviction was affirmed on appeal. Id. at *1, 3, lv. den. 485 Mich. 977 (2009). He subsequently filed a motion for relief from judgment in the trial court which was denied. People v. Schultz, No. 07-830-FC, (Isabella Cir. Ct. Nov. 30, 2010). He then filed for application for leave to appeal which was also denied. People v. Schultz, No. 301518(Mich. Ct. App. June 15, 2011), lv. den. 490 Mich. 968 (2011).

STANDARD OF REVIEW

Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 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 (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. 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.

The Supreme Court has explained that "a federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).

"[I]f this standard is difficult to meet, that is because it was meant to be." Id. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from granting relief for claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Therefore, to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.

DISCUSSION

Schultz seeks a writ of habeas corpus on the following grounds: First, that his right to due process of law as well as his Sixth Amendment right to effective assistance of appellate counsel was violated when counsel refused to raise the following issues that he requested counsel to raise; second, that his right to due process as well as his Fifth, Sixth,and Fourteenth Amendment rights were violated by the admission of statements made to an undercover officer and a police informant; and third, that his right to due process as well as his Fifth Amendment right to remain silent were violated by the introduction and use of his silence as substantive proof of guilt.

The Court will consolidate claims one, two and three, as they are all interrelated. Schultz alleges that he was denied his Sixth Amendment right to the effective assistance of appellate counsel when appellate counsel refused to raise issues two and three contained within petitioner's habeas petition.

I. Did Schultz Procedurally Default Claims?

Schultz raised issues two and three for the first time in his motion for relief from judgment. As a result, respondent contends that petitioner's second and third claims are procedurally defaulted, because he raised them for the first time in his post-conviction motion for relief from judgment and petitioner failed to show cause for failing to raise these issues in his appeal of right, as well as prejudice, as required by Mich. Ct. R. 6.508(D)(3).

Schultz argues in his first claim that his appellate counsel was ineffective for failing to raise his claims in his appeal of right. Ineffective assistance of counsel may establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). If petitioner could show that he received ineffective assistance of appellate counsel that rose...