Waller v. Rapelje
| Decision Date | 29 July 2016 |
| Docket Number | CASE NO. 12-14872 |
| Parties | JAY ANTHONY WALLER, Petitioner, v. LLOYD RAPELJE, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE DENISE PAGE HOOD
This matter has come before the Court on petitioner Jay Anthony Waller's pro se habeas corpus petition under 28 U.S.C. § 2254. Petitioner is a state inmate at Kinross Correctional Facility in Kincheloe, Michigan. He challenges his convictions for second-degree murder, Mich. Comp. Laws § 750.317, possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b, and carrying a concealed weapon (CCW), Mich. Comp. Laws § 750.227. Petitioner is serving a sentence of twenty-eight to sixty years in prison for the murder conviction, a concurrent sentence of two to five years in prison for the CCW conviction, and a consecutive sentence of two years in prison for the felony-firearm conviction.
Petitioner alleges that the trial court made certain errors at trial and at sentencing, that there was insufficient evidence to support his murder conviction, that the prosecutor engaged in misconduct, and that his trial and appellate attorneys were ineffective. Respondent Lloyd Rapelje filed an answer to the habeas petition, urging the Court to deny the petition on grounds that Petitioner procedurally defaulted his claims about the prosecutor and trial counsel and that none of Petitioner's claims have merit. The Court agrees that Petitioner is not entitled to habeas relief. Accordingly, the habeas petition will be denied. A procedural history of the case and an analysis of Petitioner's claims follow.
Petitioner was charged in Ingham County, Michigan with open murder,1 felony firearm, and CCW. The charges arose from allegationsthat Petitioner shot and killed Dominic Carter outside Petitioner's residence at 1524 Bailey Street in Lansing, Michigan on September 15, 2008. Petitioner was tried in Ingham County Circuit Court where the evidence established that Petitioner and Carter were friends who lived a short distance away from each other. On the afternoon of September 15, 2008, the two men argued about a camcorder that Petitioner thought Carter had stolen. Petitioner asked for his camcorder, but Carter denied knowing anything about it. Petitioner then pulled out a gun and attempted to shoot Carter, who turned and tried to run away. Petitioner fired at Carter two more times, causing Carter to fall. Petitioner left the scene in a friend's car, and Carter was pronounced dead in the emergency room of a local hospital. A forensic pathologist testified that Carter died of two gunshot wounds, one on the left side of his lower back and one on the back of his left shoulder.
The most damaging trial testimony came from a few key prosecution witnesses. Cheryl Crouch testified that she was living across the street from Petitioner's residence on September 15, 2008, and that she sawPetitioner pull out a gun and shoot the victim two times. She was unable to identify Petitioner in a photo array that the police showed her on the day of the shooting, but she did identify him in a line-up in July of 2009.
Evelyn Cain-Morgan was living with Cheryl Crouch on September 15, 2008. She testified that she heard two gunshots and then went outside. She saw Petitioner extend his arms in front of him seconds before the victim fell to the ground.
Racardo Payton testified pursuant to a plea agreement in an unrelated matter. He claimed to have seen Dominic Carter run up to Petitioner on September 15, 2008, and swing his fist at Petitioner, When Petitioner pulled out a gun, Carter turned and ran, but Petitioner shot him and he fell. Carter got back up and was shot again while his back was facing Petitioner.
Corey Dalton testified that, before the shooting Carter handed him a camcorder and asked him to sell it to make some money. Petitioner later confronted Dalton and took the camcorder from him. Dalton and Carter subsequently got back together and approached Petitioner, who was tryingto determine who stole the camera. When Carter asked whether Petitioner thought he stole the camera, Petitioner pulled out a gun and shot Carter.
Michael Davis also witnessed the shooting. He claimed that Petitioner shot Carter after Carter said, "If you think I'm stealing from you, what's poppin?"
Catrina Kay testified that she met Petitioner in Charlotte, North Carolina in mid-October of 2008. She knew Petitioner as "RJ," which stood for Ramon Tyrone Jackson. They lived together briefly in Charlotte, but on March 11, 2009, they had an argument. Petitioner then sat her down on the bed and said she was going to die that day. Petitioner subsequently told her that his real name was Jay Anthony Waller and that he was "on the run" for a murder in Michigan. When Ms. Kay asked Petitioner why he killed the person, Petitioner told her that the person had stolen something from him. Petitioner explained to Ms. Kay that, even though a friend of his had discouraged him from killing the person, Petitioner had said to his friend, "No, I am going to kill him."
Petitioner informed Ms. Kay that the victim later walked up to him and that they began to argue. He (Petitioner) then pulled out his gun and shotthe victim three times. He subsequently went to a hotel and watched a news report about the incident. The next day, his uncle came to the hotel, took his identification, and told him that he would never again be Jay Anthony Waller. His uncle then gave him some money, and he caught a bus to Charlotte.
Continuing, Ms. Kay testified that, after this incident with Petitioner, she learned on the Internet that Petitioner was Michigan's most wanted criminal. She then called the Michigan State Police, but maintained contact with Petitioner and visited him in Atlanta, Georgia in May of 2009. She later revealed to one of the victim's relatives that Petitioner was in Atlanta. Petitioner was arrested in Atlanta and brought to Michigan for trial.
Petitioner produced two witnesses. Christina Martinez testified for the defense that she saw Dominic Carter on the morning of the shooting and that he was angry about something. The second defense witness, police officer Quincy Scroggins, testified that he found a work application with Petitioner's name on it at Dominic Carter's residence. OfficerScroggins further testified that, according to one Torri Golladay, Petitioner and Dominic Carter were friends and that they interacted regularly.
The defense theory was that the police did a sloppy job of investigating the case and that the prosecution witnesses were not credible, either because they had a motive for testifying as they did or because their testimony was inconsistent with their actions or prior statements. Defense counsel maintained in closing arguments that the evidence, or lack thereof, was consistent with a verdict of not guilty and that, at most, the jury could find Petitioner guilty of voluntary manslaughter.
On the murder count, the trial court instructed the jury on first-degree (premeditated) murder, second-degree murder, and voluntary manslaughter. The jury's options on the other counts was a verdict of not guilty or guilty. On February 4, 2010, the jury found Petitioner guilty of second-degree murder, Mich. Comp. Laws § 750.317, felony firearm, Mich. Comp. Laws § 750.227b, and CCW, Mich. Comp. Laws § 750.227. On March 24, 2010, the trial court sentenced Petitioner to two years in prison for the felony firearm conviction, followed by concurrent terms of twenty-eight to sixty years in prison for the murder conviction and two to five years in prison for the CCW conviction.
On direct appeal, Petitioner argued through counsel that: (1) the denial of his motion for a directed verdict constituted reversible error; (2) the verdict was based on insufficient evidence; and (3) the assessment of ten points for offense variable 19 constituted reversible error. In a pro se supplemental brief, Petitioner claimed that: (1) the introduction of testimony regarding other "bad acts" deprived him of a fair trial, and defense counsel was ineffective for failing to object; (2) the trial court erred by limiting the amount of the testimony re-read to the jury; and (3) the prosecutor engaged in misconduct by presenting false and misleading testimony and by vouching for witnesses. The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an unpublished, per curiam opinion. See People v. Waller, No. 297639, 2011 WL 2342698 (Mich. Ct. App. June 14, 2011).
Petitioner raised the same six claims in an application for leave to appeal in the Michigan Supreme Court. On December 28, 2011, the Michigan Supreme Court denied leave to appeal because it was notpersuaded to review the issues. See People v. Waller, 490 Mich. 969; 806 N.W.2d 732 (2011).2
On October 4, 2012, Petitioner filed a motion for relief from judgment, arguing that his trial and appellate attorneys were ineffective. On October 9, 2012, the trial court denied Petitioner's motion on the ground that Petitioner could have raised his claims on direct appeal.
On November 1, 2012, Petitioner commenced this action. See Document No. 1. In support of his request for relief, Petitioner asserted the six claims that he raised on direct appeal and the two claims that he raised in his motion for relief from judgment.3 Petitioner explained in his habeas petition that he exhausted state remedies for his first six claims and that hewas in the process of exhausting state remedies for his seventh and eighth claims. He asked the Court to hold his habeas petition in abeyance while he pursued additional state remedies. In an order dated ...
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