Fawaz v. Wolfenbarger

SAMER FAWAZ, Petitioner,

v.HUGH WOLFENBARGER, Respondent.

Case Number 09-14965

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: April 5, 2013

Honorable David M. Lawson

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Samer Fawaz, a prisoner in the custody of the Michigan Department of Corrections, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for second-degree murder, Mich. Comp. Laws § 750.317. He was charged originally with first-degree murder for causing the death of a business associate, whose body was never found. The petitioner argues that the trial court erred in admitting evidence of a mortgage fraud investigation involving the petitioner and the victim; the trial court improperly instructed the jury on the necessarily included lesser offense of second-degree murder; the prosecutor improperly commented on the petitioner's failure to testify and his failure to present an adequate defense; the trial court erred in denying a motion to quash the information; the trial court erred in denying a motion for a directed verdict; the trial court improperly admitted evidence as to cause of death when it was based upon speculation; the trial court improperly relied upon facts not admitted by the petitioner or determined by a jury in sentencing the petitioner; trial counsel was ineffective for a variety of reasons; and appellate counsel was ineffective. The respondent has filed an answer to the petition contending that it should be denied because the claims lack merit and someof the claims were not preserved properly in state court. The Court finds that the petitioner's claims lack merit and therefore will deny the petition.

I.

The petitioner was found guilty of second-degree murder following a jury trial in the Macomb County, Michigan circuit court. The petitioner, along with a co-defendant, Bashar Farraj, was convicted of the murder of Raed Al-Farah, who went missing in October 2003 and whose body has never been recovered. The petitioner contends that Al-Farah is still alive.

The petitioner filed a motion before trial to quash the information charging him with first-degree murder. The trial court denied the motion, finding that the magistrate did not abuse his discretion in determining that there was sufficient evidence to bind the petitioner and his co-defendant over for trial. People v. Fawaz, No. 2004-0439-FC (Macomb Cnty. Cir. Ct. June 23, 2004). The Michigan Court of Appeals denied the petitioner leave to appeal. People v. Fawaz, No. 256648 (Mich. Ct. App. Aug. 13, 2004).

Nayef Al-Farah, Raed's father, testified that when Raed first arrived in the United States from Jordan, he lived with his uncle, Osama Al-Farah, but that Raed moved to an apartment with a roommate while attending Wayne State University. Osama Al-Farah testified that although Raed no longer lived with him, the two were in weekly contact. Osama telephoned Raed several times on October 17, 2003. Raed did not return the calls, which was unlike him. On October 20, 2003, Osama became concerned and called Raed's friends. Raed's roommate, Tawfiq Karadsheh, also tried to contact Raed, but was unable to do so. Karadsheh found that none of Raed's belongings were missing from the apartment they shared. Also on October 20, 2003, Osama obtained Raed's class schedule and went to campus in an attempt to locate Raed. Raed was not in any of hisclassrooms. Late that evening, Osama filed a missing person report with the Madison Heights Police Department. He also hired a private investigator later in the week. Osama obtained a copy of Raed's most recent monthly bill for his cell phone. The bill showed that the last call received or made using the cell phone was on October 16, 2003 at 10:50 p.m.; however, Osama testified that some time after October 16, 2003, the voicemail greeting on Raed's cell phone changed. Jennifer DiNello testified that she had seen Raed on the evening of October 16, 2003 at a nightclub that they both frequented, but that she had not seen him since that date. Nayef Al-Farah testified that when he became aware that his son was missing, he flew from his home in Jordan to the United States. He hired two private investigators, enlisted help from the local Jordanian community, and offered a reward, but was unsuccessful in locating his son.

Nayaf and Osama Al-Farah both testified that Raed was involved in real estate transactions with Fawaz and Farraj. Osama testified that when he went through Raed's things, he found paperwork on four or five real estate transactions. Osama also knew that Raed was being investigated by the FBI, although he did not know the subject of the investigation. Osama testified that Raed took Farraj's car, a black Trailblazer, on a trip to New York and Pennsylvania. Special Agent Theodore Peissig of the FBI testified that in the spring of 2003, the FBI was investigating the petitioner, Farraj, and Raed Al-Farah for mortgage fraud. He also testified that in connection with that investigation, he observed several individuals, not including the petitioner, engaged in a transaction at a bank. The FBI seized some checks in connection with that transaction.

Marlin Rayes testified that in October 2003, she was employed as a receptionist at Michigan Mortgage Center in Sterling Heights, Michigan. Her husband, Eddie Rayes, also worked there as a loan officer. The petitioner was employed as a loan processor and his co-defendant Bashar Farrajas a loan officer. When Marlin arrived for work on October 16, 2003, she found on the floor of her office a box for a sleeping bag, plastic wrap, plastic bags, and packaging for a kitchen knife. Marlin saw a white plastic bag in the box that bore a few spots of blood. When Farraj entered her office, Marlin asked him about the blood and he showed her a small scratch on his arm. When Marlin left her office at the end of the day, the box was still there.

Eddie dropped Marlin off for work the next morning, October 17, 2003, at approximately 9:15 a.m., and left to change the oil in his car. Farraj's black Trailblazer was parked outside the office. Marlin saw the petitioner and Farraj standing just inside the front door of the office. She testified that it was unusual for the petitioner and Farraj to be at the office so early. When she entered the building, she immediately smelled vomit and noticed that the office was messy, there were red stains and vomit stains on the carpet, doormat and the hallway in front of her office, the glass door was smudged, and a chair in the foyer was stained. The wall in the hallway leading from the foyer to her office had two holes in it. Marlin testified that either the petitioner or Farraj told her that a customer had spilled cranberry juice on the floor. She did not believe the area had been very well cleaned, so she cleaned the door with Windex, vacuumed, and poured water on a cement area that also appeared to be stained. The petitioner and Farraj purchased new mats and replaced the front doormat. Either the petitioner or Farraj taped a piece of paper over the holes in the wall. They left the office around noon.

Initially, Marlin believed the cranberry juice story. Eventually, however, she became skeptical. She took a piece of paper, dipped it on the carpet and thought the stain looked like blood, not cranberry juice. Marlin called her husband and asked him to return to the office and called the business owner, Michael Mackie, to tell him what she had seen. Marlin's husband, Eddie Rayes,testified that he observed the same staining and holes in the wall that Marlin had observed. He contacted the Sterling Heights Chief of Police. Mackie closed the office and changed the locks that afternoon.

On November 3, 2003, Officer James Wisniewski, an evidence technician, assisted in executing a search warrant at Michigan Mortgage. Officer Wisniewski removed carpeting with stains that appeared to be blood from the foyer. He also removed a larger portion of the carpet that appeared to be stained with blood from the hallway. Officer Wisniewski removed the seat cushion from a chair in the front portion of the office because the cushion appeared to be stained with blood. He performed a phenolphthalein test on the foyer carpet and the seat cushion; each tested positive for the presence of blood. Officer Davide Guerra, another evidence technician, tested a portion of the hallway wall to determine if any blood had been cleaned from the wall. The hallway wall tested positive for blood. Officer Guerra seized the vacuum cleaner Marlin had used.

Dr. Werner Spitz, Macomb County's medical examiner in 2003, testified as an expert in forensic pathology. Dr. Spitz testified that he visited Michigan Mortgage on November 19, 2003 and reviewed evidence collected from the office. Based upon his review of the office and the evidence collected, Dr. Spitz determined that a serious fight involving injuries to the victim's head occurred in the office. He believed the victim lost approximately one-and-a-half pints of blood and died from blood loss and a brain injury. Dr. Spitz also testified that the majority of people who die of exsanguination lose about three pints of blood.

On November 20, 2003, Officer Wisniewski examined a 2002 Trailblazer belonging to Farraj. He noticed that the carpeting in the back of the car was missing and appeared to have been cut out. He also noticed stains that may have been blood on some of the remaining carpeting.Officer Wisniewski seized a power cord from the car's wheel well that appeared to have some stains on it. Detective James Spence stated that at least one of the stains on the carpeting tested positive for blood. The petitioner's vehicle also was examined, but it yielded no evidence.

Jennifer Andrew testified as an expert in DNA analysis. Andrew was employed as a forensic DNA analyst by the Michigan State Police in 2003. She analyzed samples from...