Butsinas v. Stephenson

1

JOHN BUTSINAS, Petitioner, v. GEORGE STEPHENSON,^[1]Respondent.

CIVIL No. 19-cv-11789

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

February 9, 2023

ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (2) GRANTING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

Petitioner John Butsinas is a state inmate in the custody of the Michigan Department of Corrections. In 2015, a jury in the Macomb County Circuit Court convicted Butsinas of two counts of witness intimidation in violation of Mich. Comp. Laws § 750.122(7)(b). On June 17, 2019, through counsel,^[2] Butsinas filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See Pet., ECF No. 1.) The Court has carefully reviewed the petition and concludes that Butsinas is not entitled to federal habeas relief. Therefore for the reasons explained below, the Court DENIES Butsinas' petition. However, it GRANTS Butsinas both a certificate of appealability and leave to proceed in forma pauperis on appeal.

I

A

In 2014, Butsinas was charged in two criminal cases. In one of the cases, he faced five counts of first-degree criminal sexual conduct, and in the other case, he was charged with two counts of witness intimidation. The charges in the two cases were eventually joined together and were tried in a single trial. The Michigan Court of Appeals described the relevant facts as follows:

For several years, defendant lived with his girlfriend, Elizabeth Smith, and her three daughters. The family first lived in a mobile home and then in a house on Crocker Street. In 2013, Smith's middle daughter, Kr, reported to a friend that defendant had sexually abused her throughout the previous four years. At the time of this disclosure, Kr was 12 years old. When interviewed by the police, Kr claimed that defendant had repeatedly engaged in forcible penile-vaginal penetration with her since she was eight years old (2008). Following this disclosure, Smith accompanied her daughter to the hospital. But Kr refused to allow a doctor to conduct a sexual assault examination, and no examination was ever performed.

[....]

[At trial, witness] Margaret Dunn testified that in 2013, she contacted [Child Protective Services] to report defendant's alleged sexual abuse of Kr. She accompanied Smith and Kr to the hospital. Margaret asserted that she could hear defendant's voice over a cell phone while he spoke to Smith at the hospital. Defendant continually asked Smith who had contacted CPS and threatened, “[A]s soon as I find out who called and told, I will fucking kill them.” Margaret and her husband, Jason Dunn, described that defendant subsequently stalked their home. Jason further testified that defendant asked him to help “make all this, the allegations ... go away.” William Marrow, defendant's close friend, testified that defendant asked him to assist him in various nefarious acts designed to convince Smith and Kr to drop the charges.

[....]

On one of the nights that defendant revved his car engine outside the Dunns' home, Jason Dunn went outside to confront him. Defendant had his phone out and was “videotaping [the Dunns'] home and all of [their] cars.” When asked why he was doing that, defendant told Jason that the Dunns “messed with the wrong people this time, and that [they] were manipulators and [they] would not take other people's kids this time.” Jason called the police, who eventually apprehended defendant and impounded his car. According to both Jason and Margaret, defendant again had no reason to be at the Dunn house.

People v. Butsinas, 2018 WL 521819, at ** 1-3 (Mich. Ct. App. Jan. 23, 2018).

A jury convicted Butsinas on all charges. See id. at *1. Butsinas then filed a claim of appeal in the Michigan Court of Appeals. That court (1) reversed the first-degree criminal sexual conduct convictions on the ground that the prosecutor had withheld potentially exculpatory evidence but (2) affirmed Butsinas' witness intimidation convictions. See id. As to witness intimidation, the Michigan Court of Appeals held that Butsinas could not be convicted of that offense based upon his alleged comments during the telephone conversation that Margaret Dunn said she overheard - i.e., the call in which Butsinas allegedly told Smith that he would kill the person who reported him to CPS - but the Court held that he could be convicted based upon his two appearances at the Dunns' house. See id. at ** 2-3.

Butsinas filed an application for leave to appeal in the Michigan Supreme Court. That court denied review. See People v. Butsinas, 920 N.W.2d 609 (2018).

B

On June 17, 2019, Butsinas filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See Pet., ECF No. 1.) In the petition, Butsinas sought relief on the following grounds:

I. Petitioner was denied a fair trial by the trial court's decision, over objection, to grant joinder [of the charges against Butsinas], which resulted in substitute counsel (not counsel of choice), on the added counts.

II. Petitioner was denied his right to the effective assistance of counsel by his attorneys' failure to use significant impeachment material.

III. The evidence of witness intimidation is insufficient, denying defendant due process of law.

IV. Petitioner was denied a fair trial by the admission of highly inflammatory, irrelevant testimony; in the alternative, trial counsel was ineffective in failing to object on the right grounds.

Respondent filed an answer to the petition on July 31, 2020. (See Resp., ECF No. 9.) As part of the response, Respondent argued that a portion of Butsinas' first claim, which alleged the denial of his right to counsel of choice, and his entire fourth claim were unexhausted. (See id.) After several discussions between this Court and the parties, Butsinas withdrew the unexhausted claims from his petition. (See Notice, ECF No. 19).

Thus, the claims that remain before the Court are: (1) the claim that the state trial court violated Butsinas' due process rights by joining for trial the criminal sexual conduct charges and the witness intimidation charges; (2) the claim that Butsinas was denied the right to effective counsel when his trial attorney failed to use certain impeachment material; and (3) the claim that the evidence was insufficient to prove beyond a reasonable doubt that Butsinas was guilty of the witness intimidation charges. The Court provides more detail about the remaining claims below.

II

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to uphold state court adjudications on the merits unless the state court's decision (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Here, there is some uncertainty as to whether AEDPA applies to all of Butsinas' claims because there is strong reason to believe that the Michigan Court of Appeals did not decide all three claims on the merits. Indeed, that court never mentioned - nor even hinted that it was aware of - Butsinas' misjoinder and ineffective assistance of counsel claims. And while there is a rebuttable presumption that the Michigan Court of Appeals did decide those claims on the merits, see Johnson v. Williams, 568 U.S. 289, 301 (2013), that presumption may be overcome where, as here, there is no indication whatsoever in the Court of Appeals' decision that it recognized, or intended to decide, the misjoinder and ineffective assistance of counsel claims. See id. at 302-03. Finally, while Butsinas seems to concede that these two claims are subject to review under AEDPA (see Pet., ECF No. 1, PageID.15, 24), the Court has an independent duty to determine the appropriate governing standard. See, e.g., Brown v. Smith, 551 F.3d 424, 428 n. 2 (6th Cir. 2008), overruled on other grounds by Cullen v. Pinholster, 563 U.S. 170 (2011) (“[A] party cannot ‘waive'” the governing legal standard under AEDPA “by failing to argue it”); Worth v. Tyler, 276 F.3d 249, 262 n.4 (7th Cir. 2001) (“Defendants also contend that [plaintiff] waived any challenge to the standard of review. However, the court, not the parties, must determine the standard of review, and therefore, it cannot be waived”).

In any event, the Court need not resolve whether AEDPA applies to the misjoinder and ineffective assistance of counsel claims. As described below, those claims fail even on de novo review. As further described below, Butsinas' insufficiency of the evidence claim - which is subject to AEDPA because it was clearly decided on the merits - also fails.

III

A

The Court begins with Butsinas' claim that the state trial court violated his right to due process of law when the court joined for trial the criminal sexual conduct charges with the charges that he engaged in witness intimidation directed at the Dunns. In order to prevail on this claim, Butsinas must show that the joinder of the charges “result[ed] in prejudice so great as to deny [him] his [Fourteenth] Amendment right to a fair trial.” United States v Lane, 474 U.S. 438, 446 n. 8 (1986).

Butsinas argues that the joinder unfairly and severely prejudiced him because, if he had stood trial on the witness intimidation charges alone, his alleged criminal ...