Bachynski v. Warren

96 F.Supp.3d 680

Samantha BACHYNSKI, Petitioner

v.Millicent WARREN, Respondent.

Case No. 10–13762.

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

Signed March 30, 2015.

Samantha Bachynski, Huron Valley Complex, Ypsilanti, MI, pro se.

John S. Pallas, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, District Judge.

For eight days in early 2006, petitioner Samantha Bachynski accompanied her boyfriend, Patrick Selepak, on a violent crime spree in southeastern Michigan that left three people dead, including a pregnant woman and her husband. The petitioner was charged with aiding and abetting many of Selepak's crimes, and on October 20, 2006 a jury in Macomb County, Michigan found her guilty of two counts of first-degree murder under both premeditation and felony-murder theories, first-degree home invasion, possession of a firearm during the commission of a felony, unlawfully driving away a motor vehicle, kidnapping, assault on a pregnant woman intentionally causing miscarriage or stillbirth, and obtaining, possessing, or transferring personal identifying information with the intent to commit identity theft. Selepak already had pleaded guilty. Bachynski was sentenced to life in prison with no chance of parole. She challenges her convictions on several grounds in a petition for a writ of habeas corpus filed pro se under 28 U.S.C. § 2254. The respondent has filed an answer, asserting that the petitioner's claims lack merit, and some of them were not preserved properly in the state courts and therefore ought not to be addressed on the merits here. The Court concludes that although most of the petitioner's claims are meritless, one is not. When the petitioner was arrested, she invoked her right to counsel at least twice. Despite her expression of the desire for an attorney, the police initiated contact with her and engaged in conduct that was the functional equivalent of interrogation. The state courts' holding that the practice was proper, and that the ensuing confession was constitutionally valid, was an unreasonable application of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The error was not harmless, and therefore the petitioner is entitled to a conditional writ of habeas corpus.

I.

The Michigan Court of Appeals affirmed the petitioner's convictions on direct appeal. It summarized the facts of the case as follows:

This case arises out of the February 16, 2006 murder of Scott Berels and his wife Melissa Berels, who was pregnant at the time of her death. Defendant and her boyfriend, Patrick Selepak, were convicted of murdering the Berels and committing several related offenses. Defendant met Selepak over the Internet in August 2005 when she was 19 years old. They began a dating relationship in September 2005. Defendant was aware that Selepak served time in prison before they met and in November 2005, Selepak returned to prison. He was released in January 2006.

On January 31, 2006, defendant accompanied Selepak to a Mr. Pita restaurant in Chesterfield, Michigan. Two witnesses testified that Selepak entered the restaurant just before closing time that night. After ordering food, Selepak pointed a handgun at the employees, forced them to lie on the floor, and took the security tape and $400–$600 in cash. Defendant testified that she waited outside the restaurant in her grandmother's van, at Selepak's instruction, but that she had no idea Selepak intended to commit a robbery. According to defendant, she did not suspect that Selepak had robbed Mr. Pita until later that night when they went out for an expensive dinner and she saw the cash.

On February 13, defendant accompanied Selepak to a Dunham's Sports store in Flint, Michigan. According to store employees, Selepak entered the store and looked at the firearms and ammunition at least twice that day. That evening, defendant entered the store and approached employee Jason Ovick, who was working near the firearms counter. Ovick walked with defendant to a different part of the store and remained with her there for several minutes while she asked him a series of questions about treadmills and other equipment. During that time, Selepak entered the office of store manager Erin Tester, held a gun to her back, and announced that the store was being robbed. He had Tester give him approximately $800 in cash from the safe, two guns from the firearms case, and ammunition. Selepak then called Ovick into the office and forced him to remove the guns' trigger locks. Defendant testified that she went inside the store with Selepak and then talked to an employee about treadmills, but that she did not know Selepak had robbed the store until later. Defendant initially told police officers that Selepak had asked her to distract the employee, but she testified at trial that she only talked to the employee because she believed Selepak planned to buy her a treadmill.

On February 15, defendant dropped Selepak off at the Berels' house in New Baltimore, Michigan. Melissa was a friend of Selepak's. Defendant returned to the house later that day. That night, defendant and Selepak were alone in the house with Scott and Melissa. Defendant initially told police officers that Selepak led Scott and Melissa into the bathroom and then told her that he was holding the couple hostage. Selepak pulled Melissa out of the bathroom and choked her until her face turned blue. He laid Melissa on the floor and told defendant to “take care of it” or “finish it.” Defendant put her hand on Melissa's throat and felt her pulse, but tried not to squeeze her throat. Selepak then placed a bag over Melissa's head and a belt around her neck. He told defendant to pull the belt. Defendant held the belt, but tried not to pull hard. At some point after that, defendant could no longer feel Melissa's pulse. After Melissa died, Selepak had defendant retrieve a roll of duct tape from his bag and smoke a cigarette.

As Melissa was dying, Scott yelled for her from the bathroom. Selepak reentered the bathroom, bound Scott's limbs with the duct tape, put a sock in his mouth, and then covered his mouth with the tape. Selepak beat Scott with a rifle until there was blood everywhere. He then had defendant retrieve a knife and told her to cut Scott's throat. Defendant moved the knife across Scott's neck, but tried not to cut him. Later, Selepak told defendant to sit in the house and wait while he went to the store. Selepak returned from the store with beer and syringes. He then told defendant to inject Scott with bleach. She injected Scott at the ankle, but did not inject the bleach into his veins. Selepak tied Scott with an extension cord and put a bag over his head and a belt around his neck. He had defendant put her foot on Scott's head and pull the belt, while he was on Scott's chest. Defendant barely pulled the belt, but at some point she realized that Scott was dead. Defendant smoked another cigarette and at approximately 3:30 a.m. on February 16, drove to a CVS store and bought more duct tape. A CVS employee testified that defendant seemed very calm and said that she needed the tape for painting. When defendant returned from the store, she and Selepak cleaned, wrapped the bodies in plastic and tape and hid them in the house, took several items from the house including money and the Berels' identification, and then left in the Berels' vehicle.

After leaving the Berels' house, defendant and Selepak stopped for food. Selepak drove defendant home and she fell asleep in her mother's car. Later, defendant entered the house. According to her mother's boyfriend Carlos Casillas, defendant seemed “out of it.” She said that she had been babysitting all night long. Defendant ate, took medicine, and slept until 1:00 p.m. Later that day, defendant and Selepak left the Berels' vehicle on a side street in Detroit, Michigan. At around midnight, they went to Club Triangle in Flint. Defendant's friend Tara Beacham testified that she saw defendant at the bar. Beacham thought that defendant seemed completely normal. Defendant was smiling, seemed happy to see her, and danced on the dance floor. Defendant and Selepak planned to “befriend” an older, homosexual man at the bar and then stay with the man. Selepak pretended that he was homosexual and befriended Frederick Johnson. Defendant and Selepak spent the rest of the night in a hotel room with Johnson.

On February 17, defendant and Selepak spent the day eating and shopping with Johnson in Frankenmuth, Michigan. That afternoon, defendant and Selepak discovered that they were suspects in the Berels' deaths. They moved into Johnson's house near Clio, Michigan and attempted to change their appearances. Defendant cut and dyed her hair and Selepak shaved his head. That night, they went back to Club Triangle. Another friend of defendant's saw her at the bar that night. He testified that both defendant and Selepak had changed their appearances, and defendant told him that they “needed to change fast.” Defendant was happy, confident, and had a good time dancing. On February 18, she and Selepak returned to Club Triangle with Johnson's son-in-law. On February 19 and 20, they ate and watched movies with Johnson at his house.

At approximately 1:00 a.m. on February 21, defendant awoke to Selepak yelling and pointing a rifle at Johnson. When Johnson ran, Selepak shot him twice. Johnson fell into the front yard. Defendant helped Selepak drag him back into the house. Selepak then put a plastic bag around Johnson's head and a belt around his neck. When defendant refused to help, Selepak strangled him. When Selepak told defendant to get a knife, she got a butter knife from the kitchen and poked Johnson with it several times. After Johnson died, Selepak drank beer and defendant smoked a cigarette. They

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