Sterling v. Berghuis

• Decision Date: 01 November 2016
• Docket Number: Case No. 1:11-cv-427
• Parties: HYLAND STEVEN STERLING, Petitioner, v. MARY BERGHUIS, Respondent.
• Court: U.S. District Court — Western District of Michigan

HYLAND STEVEN STERLING, Petitioner, v. MARY BERGHUIS, Respondent.

Case No. 1:11-cv-427

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

November 1, 2016

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following a jury trial in the Kalamazoo County Circuit Court, on April 14, 2006, Petitioner Hyland Steven Sterling was convicted of first-degree felony-murder, MICH. COMP. LAWS § 750.316b, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. On May 8, 2006, he was sentenced to a term of life imprisonment on the murder conviction consecutive to a sentence of two years on the felony-firearm conviction.

Petitioner appealed his convictions to the Michigan Court of Appeals raising five main issues (Issues I-V below). In an unpublished opinion issued April 22, 2008, the court of appeals affirmed the convictions. Petitioner filed an application seeking leave to appeal to the Michigan Supreme Court, raising the same issues. In an order issued September 9, 2008, the supreme court denied Petitioner's application for leave to appeal.

Petitioner then returned to the trial court. He filed a motion for relief from judgment raising six grounds for relief (Issues VI-XI below). The court denied the motion by order dated October 30, 2009. Petitioner sought leave to appeal, raising the same six issues, in the Michigan Court of Appeals and then the Michigan Supreme Court. Those courts denied leave by orders entered August 18, 2010 and March 30, 2011, respectively.

In his habeas petition, filed on April 27, 2011, Petitioner raises the same eleven issues he raised in the state courts:

I. REVERSIBLE ERROR OCCURRED WHERE THE JURY'S VERDICT WAS AGAINST THE GREAT WEIGHT OF EVIDENCE.

II. DEFENDANT'S TRIAL COUNSEL MADE CRITICAL ERRORS DURING TRIAL WHICH PREJUDICED DEFENDANT AND DENIED HIM A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE OF HIS FAILURE TO CONDUCT AN INVESTIGATION TO DETERMINE IF KNOWN WITNESSES HAD DIRECT EVIDENCE TO SUBSTANTIATE HIS DEFENSE AND COUNSEL HAVE DONE SO IF HE HAD MOVED FOR A HEARING OF DUE DILIGENCE ON HIS MOTION FOR ASSISTANCE BUT FAILED TO DO SO.

B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE HAD FAILED TO CHALLENGE THE USE BY THE PROSECUTOR OF OTHER BAD ACTS COMMITTED BY DEFENDANT.

C. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO HAVE THE JURY MADE AWARE THAT THE PHOTOGRAPH OF EXHIBIT 5 OF DEFENDANT USED AT TRIAL WAS TAKEN SOME YEARS AFTER THE HOMICIDE, WHERE THE LENGTH OF DEFENDANT'S HAIR WAS AN ISSUE AT TRIAL.

D. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO CHALLENGE THE PHOTOGRAPHS OF THE DECEASED WHEN CAUSE OF DEATH WAS NOT AN ISSUE.

E. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO CALL A CRITICAL WITNESS AT TRIAL.

III. HICOK'S TESTIMONY WOULD HAVE BEEN CRITICAL FOR DEFENDANT'S DEFENSE. TRIAL COUNSEL'S FAILURE TO PRESENT HER TO THE JURY DENIES DEFENDANT A FAIR TRIAL. DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE EVIDENCE PRESENTED AT HIS TRIAL WAS INSUFFICIENT TO ESTABLISH THE ELEMENTS OF FIRST DEGREE FELONY MURDER.

IV. THE PROSECUTION FAILED TO USE DUE DILIGENCE TO ASSIST THE DEFENDANT TO PRODUCE THE RES GESTAE WITNESS, BABBIE BOOKER AS A WITNESS AT TRIAL WHICH DENIED HIM THE ABILITY TO PRESENT A VALID DEFENSE AT TRIAL WHICH SHOULD HAVE RESULTED IN HIS ACQUITTAL AND THE TRIAL COURT ERRED WHEN IT SHIFTED THE BURDEN TO DEFENDANT TO FIND HIS WITNESS.

V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT RULED MS BOOKER'S TESTIMONY WAS NOT CREDIBLE, DEFENDANT WAS NOT PREJUDICED BY THE FAILURE TO HAVE MS BOOKER'S TESTIMONY PRESENTED TO THE JURY BY DENYING THE MOTION FOR A NEW TRIAL.

VI. TRIAL COURT VIOLATED THE SIXTH AMENDMENT CONFRONTATION CLAUSE BY ADMITTING NON-TESTIFYING, FORENSIC PATHOLOGIST, DR HARVEY WILKES' AUTOPSY REPORT AND ALLOWING A DIFFERENT FORENSIC PATHOLOGIST DR. JOYCE DEJONG TO GIVE OPINIONS AND DRAW CONCLUSIONS AS TO THE AUTOPSY PERFORMED BY THE NON-TESTIFYING FORENSIC PATHOLOGIST.

VII. DEFENDANT SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND RIGHT TO CONFRONTATION AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO PRESENT A DEFENSE WERE VIOLATED WHEN THE TRIAL JUDGE ERRONEOUSLY RULED THAT THE PROSECUTION EXERCISED GOOD FAITH AND DUE DILIGENCE IN HIS FAILURE TO PRODUCE WITNESS JAMES RUSHMORE.

VIII. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. TRIAL COUNSEL WAS INEFFECTIVE (1) FOR FAILURE TO OBJECT TO THE ADMISSION OF DOCTOR HARVEY'S AUTOPSY REPORT (2) FOR FAILURE TO OBJECT TO THE ADMISSION OF THE TESTIMONY OF FORENSIC PATHOLOGIST DOCTOR JOYCE DEJONG.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO REQUEST A MISSING WITNESS INSTRUCTION.

IX. THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR TRIAL IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS

A. THE PROSECUTOR FAILED TO MEET ITS OBLIGATION TO PRODUCE WITNESS JAMES RUSHMORE[.]

B. Left Blank]¹

C. THE PROSECUTOR PERSONALLY VOUCHED FOR THE CREDIBILITY OF WITNESS JAMES RUSHMORE.

D. THE PROSECUTOR ARGUED FACTS NOT IN EVIDENCE.

E. THE PROSECUTOR'S IMPROPER ACTIONS CREATED REVERSIBLE ERROR WHETHER THEY ARE CONSIDERED SEPARATELY OR IN THEIR SUM TOTAL.

F. "HARMLESS ERROR," A RATIONAL VIEW OF THE EVIDENCE, OR A SIMILAR ARGUMENT SHOULD NOT BE APPLICABLE.

X. THE EVIDENCE FAILED TO SUPPORT THE JURY'S DETERMINATION THAT ROBERT O'KEEFE WAS MURDERED DURING THE COMMISSION OF A LARCENY.

XI. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE [OF COUNSEL] ON APPEAL WHEN APPELLATE COUNSEL FAILED TO RAISE MERITORIOUS ISSUES.

(Pet. Attach. F, ECF No. 1-1, PageID.33-80.) On November 14, 2011, Respondent filed an answer to the petition (ECF No. 5), stating that the grounds should be denied because they are procedurally defaulted and/or without merit. On November 29, 2011, Respondent filed the state-court record, pursuant to Rule 5, RULES GOVERNING § 2254 CASES. (ECF No. 6-39.)² Upon review and applying the standards from the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), the Court finds that all habeas grounds are meritless. Accordingly, the Court will deny the petition for failure to raise a meritorious federal claim.

Factual Allegations

On July 25, 1995, Christina Laing left her home at 829 Oakwood in Kalamazoo, Michigan, to work the lunch shift at Don Neal's restaurant. (Trial II Tr. II, ECF No. 22, p. 231-232, 236-237.) When she walked out at 10:30, she left behind her boyfriend, Robert O'Keefe, sleeping in their bed, and the dog they owned together. (Id., p. 252-253, 270.) When she returned at around 2:30 p.m., she found the dog had been shut in the bedroom with Robert. (Id., p. 256-258.) When she could not rouse Robert, she realized he was dead; he had been shot in the head. (Id.) The only things that appeared to be missing were her sister's backpack, and the briefcase that was typically locked up in the trunk of Robert's car. (Id., p. 269.) That briefcase had contained thousands of dollars in cash and a .44 caliber handgun. (Id., p. 265, 272, 303.) Robert had been shot with a .44. (Id., p. 350.)

Petitioner and Robert were coworkers and best friends. (Trial II Tr. VII, ECF No. 27, p. 843; Trial II Tr. II, ECF No. 22, p. 238-239.) Several weeks prior to Robert's murder, Petitioner and Robert, with the assistance of Robert's sister Tricia Emme, had robbed a bank. (Trial II Tr. IV, ECF No. 24, p. 618-620.) The robbery yielded no gains for the participants because Robert and Petitioner were forced to abandon their ill-gotten gains when the dye pack "went off." (Id.) The robbery was, at least in part, an effort by Robert and Petitioner to generate funds so that they might purchase a Kalamazoo bar known as "The Warehouse." (Id., p. 617-618.)

After Robert's murder, Tricia reported what she knew about the robbery to law enforcement. (Id., p. 621-622.) She wore a wire and, because of that effort, produced evidence of Petitioner's role in the robbery. (Id., p. 640.) Petitioner was arrested for his role in the bank robbery less than four weeks after Robert's murder. See Arrest Warrant, United States v. Sterling, No. 1:95-cr-127(W.D. Mich. Aug. 21, 1995). Petitioner pleaded guilty to bank robbery and was sentenced to 72 months imprisonment and two years of supervised release. United States v. Sterling, No. 96-1482, 1996 WL 708350 at *1 (6th Cir. Dec. 6, 1996).

The cold case team in Kalamazoo County renewed the murder investigation in March of 2004. (Trial II Tr. V, ECF No. 25, p. 752.) The circumstantial evidence they gathered led the cold case team to seek arrest warrants for Petitioner as Robert's killer. (Probable Cause Hr'g Tr., ECF No. 8) The prosecutor first tried Petitioner for Robert's murder in August of 2005. (Trial I Tr. I-VII, ECF No. 13-19.) That trial resulted in a "hung" jury: 10 jurors voted for acquittal, 2 for conviction. (New Trial Mot. Hr'g Tr. I, ECF No. 30, p. 24.) Petitioner's second trial, during April of 2006, resulted in the convictions and sentences outlined above.

The evidence presented by the prosecution was circumstantial and a full exploration of the circumstances surrounding Robert's death took several days of testimony from 27 witnesses. The defense presented the testimony of 13 witnesses, including Petitioner. The Michigan Court of Appeals distilled the volumes of testimony to the following concise statement of facts:

The evidence at trial established that defendant and O'Keefe planned to purchase a bar known as The Warehouse. Defendant knew that an investor had given O'Keefe a large sum of money to invest in the purchase, but was pressuring him to return the money. The investor's attorney testified that he was in the process of arranging for repayment of the money. Another witness testified that a few days before O'Keefe's death, defendant was looking for O'Keefe and was angry because he believed that O'Keefe was backing out of the deal to buy The Warehouse. James Rushmore, defend

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