Roche v. Brown

1

TERRELL DEJUAN ROCHE, Petitioner, v. MIKE BROWN, Respondent.

No. 19-cv-11090

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

August 28, 2023

OPINION AND ORDER DENYING PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

VICTORIA A. ROBERTS, United States District Judge

Petitioner Terrell Dejuan Roche, a prisoner currently confined at the Alger Maximum Correctional Facility in Munising, Michigan filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his convictions of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a); second-degree arson, Mich. Comp. Laws § 750.73; and possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b. In his initial and amended petitions, he raises ten grounds for relief. The Court concludes that Petitioner's claims do not warrant relief and denies the petition. The Court also denies a certificate of appealability and leave to appeal in forma pauperis.

I. BACKGROUND

On July 18, 2014, a Genesee County jury convicted Petitioner of first-degree premeditated murder, second-degree arson, and felony-firearm. The Michigan Court of Appeals adequately summarized the facts in its opinion on direct appeal; the facts below are presumed to be correct on habeas review, Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

A jury convicted defendant of fatally shooting his stepfather, Ralph Mathews, and setting Matthews's home on fire on October 25, 2005, in the city of Flint. The prosecution presented evidence that, after shooting Matthews once in the

head and robbing him of his jewelry, defendant set Matthews's house on fire, using a Molotov cocktail, in an attempt to conceal the murder and destroy the crime scene. The prosecution presented witnesses to whom defendant had confessed his crimes and who later came forward as a result of plea deals in unrelated cases. There was also evidence that, near the time of the offense, defendant went to the home of a friend and asked for a change of clothes because he had committed a robbery. Defendant's original clothing was later recovered and Matthews's DNA was found on defendant's jeans. The defense theory at trial was that the witnesses were unbelievable and had motives to lie and that the police investigation was flawed and unreliable.

People v. Roche, No. 323555, 2016 WL 2731063, at *1 (Mich. Ct. App. May 10, 2016) (unpublished).

The trial court sentenced Petitioner as a habitual offender, fourth offense, Mich. Comp.

Laws § 769.12, to concurrent terms of life imprisonment for the murder conviction and 20 to 40 years' imprisonment for the arson conviction, to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. Petitioner filed a direct appeal with the Michigan Court of Appeals, raising claims concerning evidentiary errors, prosecutorial misconduct, ineffective assistance of counsel, and violation of the Confrontation Clause. The Michigan Court of Appeals denied relief on his claims and affirmed his convictions. Roche, 2016 WL 2731063, at *12. On July 25, 2017, the Michigan Supreme Court denied leave to appeal. People v. Roche, 500 Mich. 1057, 898 N.W.2d 213 (2017).

Petitioner then raised new issues in a motion for relief from judgment. The state trial court denied the motion. While his appeal from the trial court's decision was pending in the Michigan Court of Appeals, Petitioner commenced this action on September 15, 2017 by filing a motion to hold his habeas corpus petition in abeyance. Ultimately, the Court stayed and administratively closed the case to allow Petitioner to fully exhaust his state court remedies. See 10/31/19 Order, ECF No. 7.

On April 23, 2019, the Michigan Court of Appeals denied leave to appeal the trial court's ruling on the post-conviction motion. People v. Roche, No. 346298 (Mich. Ct. App. Apr. 23, 2019). On March 3, 2020, the Michigan Supreme Court denied Petitioner's application for leave to appeal because Petitioner “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Roche, 505 Mich. 995, 939 N.W.2d 254 (2020).

On March 19, 2020, Petitioner returned to this Court with his motion to reopen the habeas proceedings and filed an amended petition. Collectively, the initial and amended petitions raise the following claims:

I. The improper admission of the video of Michael Roche's statement violated Petitioner's constitutional rights to due process. U.S. Const. XIV.

II. Petitioner's due process right to a fair trial was violated by the admission of improper testimony that Petitioner was guilty of murder. U.S. Const. XIV.

III. Prosecutorial misconduct deprived Petitioner of his due process right to a fair trial as a result of repeated and deliberate elicitation of gang-related testimony and testimony that Petitioner was guilty of the offenses. US. Const. XIV.

IV. The trial court abused its discretion by admitting irrelevant evidence.

V. Petitioner is entitled to a new trial where trial counsel provided constitutionally ineffective assistance in violation of the United States and Michigan Constitutions. U.S. Const. VI.

VI. Petitioner was denied his Sixth Amendment right to confrontation when the state was allowed to present testimonial hearsay statements made by a firearm and tool mark analyst who did not testify, through the testimony of another analyst who had neither performed or observed the analysis, and even disagreed at trial with the original analyst's results.

VII. Petitioner was again denied his Sixth Amendment right to confrontation when the state was allowed to present testimonial hearsay statements made by a DNA analyst who did not testify, through the testimony of another analyst who had neither performed or observed any of the testing upon which her testimony was concerned, despite the fact that her testimony provided the most damaging and only physical evidence linking Petitioner to the crime.

VIII. Petitioner was denied his Sixth Amendment right to the effective assistance of counsel when his trial counsel (1) failed to call firearm and tool mark examiner Ronald Ainsley as a witness, and (2) failed to object to evidence in violation of the Confrontation Clause.

IX. Petitioner was deprived of due process under the Fifth and Fourteenth Amendments when the prosecutor repeatedly elicited testimony regarding the Howard Boys street gang, and then misstated facts that were not in evidence regarding Petitioner's alleged gang affiliation.

X. Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel when his appellate attorney failed to raise claims on direct appeal that would have prevailed at that time.

(ECF Nos. 5, 8.)

On July 16, 2020, the Court granted Petitioner's motion and reopened the case. Respondent subsequently filed an answer in opposition to the initial and amended petitions contending that they should be denied because certain claims are procedurally defaulted, and all of the claims lack merit. Petitioner filed a reply to that answer.

II. STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

III. DISCUSSION

The Court notes preliminarily that although Respondent argues that Petitioner has procedurally defaulted all but two of his claims of error, it is not obligated to address that defense because procedural default is not a jurisdictional bar to review of the merits. Smith v. Nagy, 962 F.3d 192 207 (6th Cir. 2020); Trest v. Cain, 522 U.S. 87, 89 (1997)); see also Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 ...