Farr v. Davis

TOMMY FARR, JR., #292839, Petitioner,

v.BARRY DAVIS, Respondent.

CASE NO. 2:09-CV-14831

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: March 5, 2012

HONORABLE GERALD E. ROSEN

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS, GRANTING THE MOTION TO REPLACE THE FIRST MOTION FOR

APPOINTMENT OF COUNSEL BUT DENYING THE MOTION FOR APPOINTMENT

OF COUNSEL, AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a federal habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Tommy Farr, Jr. ("Petitioner") was convicted of four counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(f), following a jury trial in the Macomb County Circuit Court and was sentenced to concurrent terms of 24 to 60 years imprisonment on those convictions in 2005. In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the scoring of the sentencing guidelines, the effectiveness of trial and appellate counsel, and prosecutorial misconduct. For the reasons set forth, the Court denies the petition for a writ of habeas corpus, grants Petitioner's outstanding motion to replace his first motion for appointment of counsel but denies the motion for appointment of counsel as amended, and denies a certificate of appealability.

II. Facts and Procedural History

Petitioner's convictions arise from his sexual assault of an acquaintance, Marcel MarieMakara, at her apartment in Macomb County, Michigan on February 9, 2004. The Court adopts the statement of facts as set forth by defense counsel on direct appeal, to the extent those facts are consistent with the record. Those facts are as follows:

Marcel Marie Makara testified that on February 9. 2004, she was home alone in her third floor apartment. Appellant lived with a friend, Harold Howard, in a second floor unit. That afternoon, Appellant knocked on her door, told her that he could not access his unit, and asked to place his groceries in her refrigerator until Howard returned. She agreed. He stored his food and he left. When Mr. Howard returned, Appellant came for his groceries. While he was using the restroom, she removed the items from her refrigerator and took them to Appellant's unit. After she returned, Appellant pounded on her door and accused her of stealing a bottle of his soda. She opened the door to hand him the bottle. He pushed the door open and pushed her to the ground. He then placed his hands around her neck and forced her into the bedroom, where she landed on her hands and knees. She hit him on the head with a lamp. He pushed her onto the bed and sat on her back.

He then removed his clothes and told her to remove hers, which she did. He inserted his fingers into her vagina, placed his mouth on her vagina, had her place his penis in her mouth and penetrated her vagina with his penis. He then attempted to penetrate her anus with his fingers and his penis.

Afterward, she went to the living room to take her anti-anxiety medication. When she attempted to leave the unit, he returned her to the bedroom and again placed his penis in her vagina. She asked him to get her a cigarette. When he left, she locked and barricaded the door. After her landlord returned, she knocked on his door and asked him to call the police. She was taken to SANE, and later to the hospital. According to Makara, x-rays were taken of her leg and clavicle. "It was a contusion on the clavicle. And they couldn't find anything wrong with my right leg. But, it was sore for quite a while and it would occasionally just give out when I was walking." (TI 180). She also reported bruises on her neck, anus and legs. Makara was later evicted from her apartment. After living at a shelter, she moved in with Appellant's former roommate, Harold Howard, until she found another apartment. She denied any former relationship with Appellant and stated that she suffers from a panic disorder which sometimes distorts her judgment. (TI 138-207; T2 5-29).

David Zielinski is the landlord of the apartment building. He resided in the unit across the hall from Makara and arrived home between 3:15 and 3:30 p.m. At about 11:30 p.m, he heard a knock. At the door was Makara, who stated that she had been raped by Appellant. She seemed disheveled, agitated and upset but he did not observe any injuries. He stated that he did not hear any noise from Makara's unit that afternoon. Zielinski later evicted Makara. Afterwards, he would see her spendafternoons and evenings at Mr. Howard's apartment. (T2 30-47).

At about midnight, Mt. Clemens Police Officer Joshua Lewis was dispatched to the scene. He made contact with both Makara and Zielinski. He reported that Makara was visibly upset and shaking. He observed what appeared to be two large scratch marks on her face. She stated that she had been raped by Appellant. (T2 50-58).

Mt. Clemens Police Officer Jason Bone, working the midnight shift, was dispatched to the complainant's apartment. According to Bone "She was very shaken, scared at the time he spoke with her. She had several marks all over. She had some scratches on her eye. Also, she had like, a black eye bruise. She had some marks on her neck. Also, she had some other marks that she ended up showing me at a later time on her back." He stated that she told him that she had been raped by Appellant and described to him the manner in which it took place. Bone took photographs and collected her sheets and clothing as evidence. He arrested Appellant on an outstanding warrant and transported him to the station without advising him of his rights. In the car, Appellant stated that he and Makara were involved in a relationship, he had sex with her on that occasion, and that he had sex with her on prior occasions. (T2 59-65, 76-89).

At 3:30 p.m., February 10, 2004, Mt. Clemens Police Detective Jeffrey Bishop went to the Macomb County Jail to interview Appellant. According to Bishop, Appellant stated that he had a relationship with Makara for about three months. At 4:30 p.m. February 6, 2004, he had dinner with her in her apartment. After dinner, she asked him to give her a massage. The massage led to sex.

At 8:30, after sex, she asked him for a cigarette. He went to his apartment to get some. When he returned. she would not allow him to reenter. He denied using any force at any time. Bishop obtained a warrant to search Appellant for forensic evidence, and stated that he observed a scratch on Appellant's right arm and the removal of a blond hair from Appellant's scrotum by the forensic examiner, Renee Diegel. Bishop never spoke with Makara and did not ask Appellant about bruising on Makara's face, arms and neck. (T290-118).

Renee Diegel is the program director of Turning Point's forensic nurse examiner program in Macomb County. She is also an instructor for the National Forensic Nursing Institute at the University of Rochester in New York and a forensic nurse consultant for Houston. Texas, the ETC group and a part time instructor for Macomb County Community College Criminal Justice Training Center. She was not offered as an expert witness. On February 10, 2004, she was working at Turning Point as a forensic nurse examiner. She stated that a sexual assault examination consists of a patient history, a visual assessment, a genital examination and forensic evidence collection. She examined Appellant at the Macomb County Jail pursuant to a warrant. She observed a three centimeter scratch on his lower right arm, estimatedto be about a day old. Collecting evidence from his genital area, she recovered a clump of long, blond hair tucked into his scrotal area. (T2 119-129).

Lisa Boni stated that she is a staff nurse in the emergency room of Garden City Hospital. She is also a contingent with Turning Point in Macomb County, Haven and the Start Program. Boni examined Markara at Turning Point. According to Boni. Makara had thirty-six [36] physical injuries to her body and an additional five or six to her mouth as well as genital injuries. The physical injuries consisted of several areas of abrasions to her face and arms and multiple bruises to her anus and legs.

She also had scratches on her back and several areas which were just tender to touch. Oral injuries consisted of an abrasion to her left upper lip, three abrasions to her left lower lip and two small abrasions to her right lower lip. The vaginal examination located three .5 centimeter abrasion at 6:00, 3:00 and 9:00 and a bleeding abrasion from 9:00 to 11:00 on the vaginal cuff. Boni diagnosed that there had been a trauma. She provided Makara with two antibiotics and a tetanus shot and referred her to a hospital because of her complaints of physical pain to her neck and legs. She categorized the scratches and bruises as superficial. (T2 130-144, 158-168).

Harold Howard stated that Appellant was staying at his apartment as a guest. Makara lived on the upper level. Howard suffers from memory loss and did not recall any incident between Appellant and Makara, although he did recall that she had a red ring around her neck. He stated that Makara and Appellant were friends, but was not aware of a romantic relationship between the two. He maintained that Makara visits him very seldom. (T2 171-182).

The People rested. (T2 182). Defense counsel's motion for directed verdict was heard and denied. (T2 183-186). Appellant waived his right to testify (T2 186-189), and the defense rested.

Pet. App. Brf., pp. 2-5.

At the close of trial, the jury convicted Petitioner of four counts of first-degree criminal sexual conduct. The trial court subsequently sentenced him to concurrent terms of 24 to 60 years imprisonment on those convictions.

Following sentencing, Petitioner, through counsel, filed an appeal of right with the Michigan Court of Appeals asserting that: (1) trial counsel was ineffective for conceding guilt of the aggravating element which increased the severity of the offense, (2) the prosecution failed toestablish the element...