Holston v. Overmyer

MICHAEL TYRELL HOLSTON, Petitioner, v. SUPERINTENDENT MICHAEL D. OVERMYER, Respondent.

NO. 3:16-CV-1042

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 8, 2018

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) filed by Petitioner Michael Tyrell Holston ("Petitioner"). For the reasons that follow, the petition will be denied.

I. Background

The facts of this case have been summarized by the Pennsylvania Superior Court as follows:

Moshe Cohen, a longtime friend of the victim, seventeen year old David Carr, testified that on July 30, 2009, he and Carr went to the 1900 Block of State Street in Harrisburg to try to buy marijuana from a person known as Source. Source was not around. The Defendant Michael Holston spoke with them, and told them that he could get them a half pound of marijuana.

Cohen made arrangements with a few other friends to pool their money to buy the half pound, and gave it to Carr. Two days later, on August 2, Cohen met Carr at the Burger King on Cameron Street to obtain the marijuana. The Defendant and a friend of Carr's, Ashton Dickerson, were in Carr's vehicle. When Carr and Cohen returned home and weighed the marijuana, it weighed 5 ounces, not the 8 ounces for which they paid Holston. Carr took the shorted portion for himself. Later, on August 7, Carr spoke to Moshe about his intention to visit Defendant the next day and get money back for the shortage. Moshe discouraged him from doing so.

Video footage taken August 8, 2009, from a nearby restaurant store, shows David Carr's vehicle pull up to 1900 North Street. A person approached the vehicle; Carr waited in his vehicle for about 17 minutes, then got out of his car and walked to 1905 North Street, near Defendant's address.

Tanaya Scott lived at 1907 North Street. She knew Defendant and spoke with him frequently. On the morning of August 8, 2009, Scott spoke to the Defendant and saw him smoking 'water' or 'wet' (embalming fluid) at 8:30 or 9:00 a.m., and also about an hour before the shooting. Scott testified that it was common for Defendant to smoke water daily. That afternoon, before the shooting, although Scott testified that Defendant was 'bouncing around' and talking a lot, he walked the dog with her son. When he returned, Defendant took off his necklace, gave it to Scott's son, and told him he was a 'good boy'. Shortly before the shooting, Scott overheard Defendant talking on the phone and heard him say, 'I'm sorry. I know I got you waiting.' Scott observed that Defendant had a handgun in his right top pocket, and something heavy in his cargo pants pocket, which he touched frequently.

Scott observed Defendant walk to the front of the building, and return with David Carr. Defendant introduced Carr to Scott; Defendant joked that Carr was short, like him, but had big feet. Scott went into her house.

From her bathroom window, Scott could see down into the alley between 105 and 1907 North Street. She heard loud talking, and heard Carr say, 'Stop playing,' to which the Defendant replied, "No M—.F—." She then heard running. In a written statement to police, Scott stated that she saw Defendant chasing Carr down the alley with his arm outstretched. She next heard gunshots.

Rabia Kouzouni testified, through an interpreter, that at the time of the shooting, she was taking her trash out from the kitchen door of her house at the 1900 block of State Street. From her window, Mrs. Kuzouni saw people arguing, one in a very loud voice. She could see that the two people were standing "too close ... very close". She heard someone say something, which she did not understand. As Mrs. Kouzouni began to take out the trash, she heard gunshots, and retreated inside. She hid inside, and heard the sound of someone running. She remained in the kitchen, and looked outside to see someone lying down.

Ed Polston testified that he knew Defendant through Defendant's visits to Polston's sister's house at 1900 North Street. Polston went to his sister's house on the day of the shooting. When he arrived, someone told him that a person had been shot, and to get in the house. As Polston sat on the couch, the Defendant tried to put a gun in Polston's pocket, saying something to the effect of 'just take this' to which Polston responded 'No.' Polston and the Defendant then spoke briefly about a mutual friend who owed Polston five dollars. The Defendant then left, and went to the store.

Monique Winston was also at 1900 North Street when she heard that something bad had happened. After police arrived at the alley, she went onto the balcony and watched what was occurring on the street. Within minutes, the Defendant arrived at her house, came into the living room and spoke with Ed Polston. Ms. Winston asked Defendant if she could go look out of Defendant's bedroom window, to be able to see where the body was lying. Defendant stopped talking, and gave her a blank stare. Defendant then left the house, crossed the street, and entered the restaurant store. As Ms. Winston watched police lead Defendant out of the store, Defendant yelled to her, 'Mo, call my mom. Don't worry about me. I'll be back. I'm extra wavy.'

Monique Winston testified that during the time she dated Defendant, she smoked wet with him three or four times a day, and that the effects lasted about forty five minutes, then they would have to smoke it again to get high. When Defendant was on wet, he could function, and was not out of control or violent.

Ed Polston's sister, Monique Polston, was also at 1900 North Street at around 4:30 p.m. on the day of the shooting. Soon after she heard that someone had been shot, Defendant arrived. When Ms. Polston asked him what happened, he said he didn't know, that gunshots awoke him, and asked for a cigarette. Ms. Polston asked him about the twenty dollars he owed her, to which he responded he would pay her later. Defendant spoke and walked normally, although he seemed nervous.

At approximately 4:35 p.m., while working the 3 p.m. to 11 p.m. shift in the Allison Hill area, Sergeant Steven Novacek of the Harrisburg Police received a call of shots fired with a person down at 19th Street and Miller Alley. Officer Novacek exited his vehicle and walked up the alleyway toward the person down. There, Officer Novacek saw a young white male, in a kneeling position, bent backwards, obviously deceased. Other officers began responding, preserving the scene, and collecting evidence.

Officer Kenneth Young of the Harrisburg Police, assigned to a robbery task force, also received a call regarding a shooting at the 1900 Block of Miller Street, with one person deceased. After arriving at the scene, Officer Young assisted with canvassing neighbors to ask what they may have heard or observed. Two people indicated that the shooter went into 1900 North Street. Officer Young observed a person who fit the description of the shooter, later identified as the Defendant, exit the residence, cross the street and enter a store. Officer Young entered the store. When police spoke to him, the Defendant asked the officer to 'hold on' while he paid for his food. When asked for identification, Defendant stated that he had a gun in thepocket of his cargo pants, and that the gun was registered. Defendant then twisted his body to evade search of his right pocket, in which police found another gun which had live bullets in the magazine and one in the chamber. [Officer Young] stated that Defendant followed the officers' simple commands, walked and talked normally, and did not exude the pungent odor of PCP. Inside the store, Defendant cooperated with police. As Police loaded Defendant in the police van, Defendant yelled to people watching to call his mother, and shouted a phone number.

Detective Donald Heffner of the Criminal Investigation Division of the Harrisburg Police Department responded to the crime scene at about 4:50 p.m. After securing the crime scene and assisting officers who apprehended Defendant, Detective Heffner next saw Defendant in the booking room. Defendant had a tissue or paper towel and was attempting to wipe his hands. Concerned that Defendant was removing gun residue and or blood from his hands, Detective Heffner took the tissue from Defendant. Defendant was 'passive aggressive', in that he reluctantly followed commands. Detective Heffner did not seek permission to obtain a blood sample, in that he did not believe Defendant was intoxicated. When Detective Heffner told Defendant that he would be charged with possession of handguns, Defendant blurted out, falsely, that one of the guns belonged to his mother, and that he had a permit for it. Investigator William Kimmick of the Harrisburg Police had contact with Defendant in the booking area at approximately 8 p.m. on the night of the shooting, for the purpose of obtaining swabs from his hands to test for gunshot residue. Defendant did not appear to be under the influence, and was not argumentative, although he ignored commands.

Wayne Ross, M.D., a forensic pathologist, testified that he conducted an autopsy of David Carr and determined the cause of death as multiple gunshot wounds to the top of the head. Eight bullets entered the head, six penetrated the skull. Dr. Ross reviewed a photograph of the position of the victim at the crime scene. Dr. Ross opined that the victim was shot from approximately [2 to 3 feet], as evidence by 'stippling', abrasions to the skin caused by gunshot residue. The wounds were consistent with an 'execution style' killing, that is, within a few feet, over the top of the head, and directly to the brain or skull.

The defense called Lawrence Guzzardi, M.D., as an expert toxicologist. Dr. Guzzardi testified that based upon his understanding of the amount of formaldehyde the Defendant smoked, as related to him by Defendant, he did not believe that Defendant was capable of forming the specific intent to commit murder.

Commonwealth v. Holston, No....