1. MCR 6.500 PROCEEDINGS - EMMETT CO,MI (10-10-10)
OCTOBER 10, 2010
Motion For Relief From Judgment Under MCR 6.500
Request For Release Of Evidence
Request For Evidentiary Hearing Pursuant To MCR 6.508(c)
STATE OF MICHIGAN
IN THE EMMET COUNTY CIRCUIT COURT
PEOPLE OF THE STATE OF MICHIGAN
Supreme Court No. 137830
Plaintiff-Appellee, Court of Appeals No. 273407
Circuit Court No. 06-002597-FC
-v- HON. CHARLES W. JOHNSON
JOEL NATHAN DUFRESNE
Defendant-Appellant.
______________________________/
EMMET COUNTY PROSECUTOR'S OFFICE
Attorney for Plaintiff-Appellee
______________________________
F. MARTIN TIEBER (P25485)
Attorney for Defendant-Appellant
______________________________
MOTION FOR RELIEF FROM JUDGMENT
UNDER MCR 6.500
REQUEST FOR RELEASE OF EVIDENCE
REQUEST FOR EVIDENTIARY HEARING
PURSUANT TO MCE 6.508(C)
Appellant Joel Nathan Dufresne, by his attorney, F. Martin Tieber, asks this Court to grant relief
from relief from judgment, stating as follow:
Joel Dufresne was found not guilty of three counts of first degree criminal sexual conduct, though
he was convicted of three counts of first degree criminal sexual conduct (MCL 750.520d(1)(f), using force or causing injury), and six counts of third degree criminal sexual conduct (MCL 750.529d(1)(f), using force or coercion), after a jury trial which took place in Emmet County Circuit Court before the Charles W. Johnson from August 16, 2006 through August 18, 2006. Mr. Dufresne was sentenced to 50-75 years in prison on the CSC 1 counts, and 25-50 years on the CSC 3 counts, by Judge Johnson on September 22, 2006.
FACTUAL SUMMARY AND OVERVIEW
Appellant Joel Dufresne and Complainant Angela W. had a tempestuous relationship. Both Joel
and Angela had serious problems when they met, decided to life together, and had a child. Angela was beset by substance abuse (drugs and alcohol) and psychiatric problems. She had substantial issues with theft and dishonesty. She seriously injured another person in an alcohol fueled driving incident, and fled from the area during an incident in which her brother died because she was drinking and was on probation. She was assaultive toward others, and had accused another father of one of her children of assault in the past. She was known to be sexually adventurous and experimental, despite testifying at trial that unusual sexual acts were abhorrent to her. Very little of this information, however, was in the hands of the jury that convicted Appellant
Dufresne of an offense which resulted in a sentence of death in prison (50 - 75 years). The jury was
deprived of this information because this Court granted an omnibus prosecution motion in limine,
because trial defense counsel failed to properly investigate the case, and as a result of witness
intimidation.
Mr. Dufresne had been looked a by the Michigan State Police in conjunction with the death of
the family of an Illinois federal district court nearly a year before the allegations in this case surfaced.
Despite the fact that it immediately became clear that the judge's family was killed by someone with a
grudge about a case decision, someone who had nothing to do with Mr. Dufresne or any group he
belonged to, he was kept under review by the MSP. At some point in early 2006, Mr. Dufresne's
repeated trips to Florida to visit family with the son he had with the complainant, caused the
complainant to seek assistance getting her son back through her probation officer. She was put in
touch with the state police detective already monitoring Mr. Dufresne. When it became clear that there
were no offenses being committed, the allegations of unwanted and forced sex arose.
This case was a very triable credibility contest. A substantial number of witnesses, many of
whom were on a defense witness list filed prior to trial, could have testified in favor of Mr. Dufresne's
position that Angela W. made up the claims of forced and non-consensual sex in order to obtain
custody of their son, abetted by law enforcement personnel with a severe dislike of Mr. Dufresne and a
white supremacy group he was involved with. However, trial defense counsel failed to investigate and
presented NO witnesses save Mr. Dufresne, who was woefully unprepared to take the stand. The
result was a free pass for the complainant and death in prison for Mr. Dufresne. Direct appeal
counsel's failure to unearth these federal constitutional issues constitutes another investigatory failure
in violation of the federal constitution.
INFORMATION REQUIRED BY MCR 6.502(C)
Mr. Dufresne is currently incarcerated at the Bellamy Creek Correctional Facility in Ionia,
Michigan. He was sentenced to 50–75 years on three CSC 1 counts and 25-50 years on six CSC 3
counts on September 22, 2006 by the Honorable Charles W. Johnson of the Emmet County Circuit
Court. Judge Johnson presided over a jury trial in this case which resulted in Mr. Dufresne's
conviction of three counts of first degree criminal sexual conduct (MCR 750.520b(1)(f), using force or
causing injury) and six counts of third degree criminal sexual conduct (MCL 750.520d(1)(f), using
force or coercion). The Emmet County Court file number for this case is 06-002597-FC.
Mr. Dufresne filed an appeal in the Michigan Court of Appeals, raising three issues:
1. IT WAS REVERSIBLE ERROR FOR TWO POLICE WITNESSES TO TESTIFY THAT
MR. DUFRESNE ASKED TO SPEAK TO A LAWYER DURING HIS INTERROGATION-
THAT HE HAD “LAWYERED UP” IN THE WORDS OF ONE OF THE OFFICERS – IN
VIOLATION OF MR. DUFRESNE'S UNITED STATES AND MICHIGAN
CONSTITUTIONAL RIGHTS.
2. THE TRIAL COURT ERRED IN ADMITTING, THE PROSECUTION ADMITTED
MISCONDUCT BY ASKING ABOUT, AND COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO PREJUDICIAL TESTIMONY REGARDING MR.
DUFRESNE'S CHARACTER – THAT HE HAD TIES TO A WHITE SUPREMACIST
GROUP THAT WAS INVOLVED WITH THE MURDER OF A JUDGE'S FAMILY IN
CHICAGO AND THAT HE WAS SCARY AND INTIMIDATING.
3. TROOPER ARMSTRONG IMPERMISSIBLY TESTIFIED REGARDING THE
CREDIBILITY OF THE COMPLAINANT'S ALLEGATIONS, PREJUDICING THE
DEFENSE BY VOUCHING FOR THE VERACITY OF THE COMPLAINANT,
DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL, AND
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE
TESTIMONY.
On direc t appeal, Appellant's conviction and sentence were affirmed by the Michigan Court of
Appeals, in a three-page unpublished per curiam opinion issued on October 14, 2008. People v
Dufresne, Unpublished Opinion Per Curiam of the Michigan Court of Appeals, No. 273407, decided
October 14, 2008, 2008 WL 5055959. On December 8, 2008 , Appellant filed a timely application for
leave to appeal in the Michigan Supreme Court, which was denied on April 28, 2009. People v
Dufresne. 483 Mich 978; 764 NW2d 266 (2009). Mr. Dufresne raised the same three issues in his
Application for Leave to Appeal to the Michigan Supreme Court. A timely motion for reconsideration
in the Michigan Supreme Court was filed o May 15, 2009, and denied on August 6, 2009. People v
Dufresne, 484 Mich 873;764NW2d 266 (2009). 1
These proceedings have all been completed and Mr. Dufresne obtained no relief on direct
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1 Direct review ended 90 days after that date, on November 4,2009, when the period within which
Mr. Dufresne could have petitioned for a writ of certiorari to the United States Supreme Court expired.
See Clay v United States, 537 US 522;123 S Ct 1072; 155 L Ed 2d 88 (2008); Bronaugh v Ohio,
235 F3d 280, 283 (CA 6, 2000); Abela v Martin, 348 F3d 164 (CA 6, 2003); Wyche v United States, 317 F Supp 2d 1 (D DC, 2004). Mr. Dufresne thus has one year from that date, or until November 4, 2010, within which to file his federal habeas petition. The filing of his postconviction action on
10/1/2010 freezes the federal clock, with one month and four days remaining on it, until after state
postconviction litigation has concluded.
Review. No other appellate or post-conviction challenges have been mounted against the convictions
here at issue.
Mr. Dufresne was represented at trial by appointed counsel Bryan C. Klawuhn (P61090).
Mr. Dufresne was represented on direct appeal in the Michigan Court of Appeals by appointed counsel
Michael B.Skinner (P62564), and after he experienced health difficulties, by appointed counsel Patrick
K. Ehlmann (P31644). Mr. Dufresne filed all pleadings on direct appeal in the Michigan Supreme
Court in pro per. Mr. Dufresne is currently represented by attorney F. Martin Tieber (P25485). Mr.
Dufresne is not requesting appointment of counsel.
Mr. Dufresne is requesting relief from judgment in the form of the grant of a new trial.
Minimally, Mr. Dufresne requests release of evidence originally provided to appointed trial and direct
appeal counsel, evidence which has since been lost due to their negligence. Mr. Dufresne is also
seeking an evidentiary hearing under MCR 6.508(C),
Mr. Dufresne raises the following as grounds for relief:
1.TRIAL DEFENSE COUNSEL, WITH NO STRATEGIC PURPOSE,
FAILED TO REVIEW AND INTRODUCE SEVERAL PHONE
CONVERSATIONS RECORDED BY MSP IN ORDER TO PLACE
APPELLANT'S ALLEGED “CONFESSION” IN APPROPRIATE
CONTEXT. TRIAL DEFENSE COUNSEL FAILED TO INTERVIEW
AND PRESENT WITNESSES, AND FAILED TO INVESTIGATE AND
PRESENT FACTS, ALL OF WHICH WOULD HAVE SUPPORTED
APPELLANT'S CLAIM THAT THE SEXUAL CONDUCT FOR WHICH
HE HAS BEEN SENTENCED TO 50-75 YEARS IN PRISON WAS
CONSENUAL, AND THAT THE UNSUPPORTED AND
UNCORROBORATED CLAIMS OF COMPLAINANT WERE LACKING
IN CREDIBILITY. AS A RESULT OF THESE AND OTHER
FAILURES, APPELLANT DUFRESNE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY THE FEDERAL
AND STATE CONSTITUTIONS (US CONST, AM VI; CONST 1963,
ART 1, 20)
2. APPELLANT WAS DENIED HIS FEDERAL AND STATE DUE PROCESS
RIGHT TO PRESENT A DEFENSE, AND HIS STATE AND F
CONSTITUIONAL RIGHTS TO CONFRONTATION (US CONST, A
V1 & XIV; CONST 1963, ART 1, 17 & 20), WHEN WITNESS
INTIMIDATION, AND RULINGS OF THE TRIAL COURT
ALONG WITH INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
(ISSUE 1, SUPRA), PROHIBITED EXPLORATION OF AREAS
CRITICAL TO FACTUAL SUPPORT OF HIS DEFENSE THAT
THE CHARGES IN THIS CASE RESULTED FROM A FALSE
ALLEGATION.
3. APPELLANT DUFRESNE WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY THE
FEDERAL AND STATE CONSTITUTIONS (US CONST, AM
VI; CONST 1963 1, 20) WHERE HIS APPELLATE COUNSEL, ON
DIRECT APPEAL, NEGLECTED “DEAD BANG WINNERS.
4.APPELLANT DUFRESNE WAS AND CONTINUES TO BE DENIED
HIS RIGHT TO A FAIR TRAIL, AND HIS RIGHT TO ENGAGE STATE
POSTCONVICTION PROCEEDINGS AND LATER FEDERAL
HABEAS REVIEW, IN VIOLATION OF THE DUE PROCESS
CLAUSES OF THE UNITED STATES AND MICHIGAN
CONSTITUTIONS (US CONST, AMV; CONST 1963, ART 1, 17)
WHERE THE STANAWAY PROCEDURES WITH RESPECT TO
COMPLAINANTS PSYCHIATRIC RECORDS WERE NOT ENGAGED,
AND WHERE OTHER DISCOVERY FAILURES ON POSTCONVICTION
CONTINUE TO PREJUDICE THE DEFENSE. THIS COURT SHOULD
GRANT MR. DUFRENSE'S REQUEST FOR RELEASE OF EVIDENCE
PREVIOUSLY PROVIDED TO THEDEFENSE BUT LOST DUE TO
NEGLIGENCE OF TRIAL AND DIRECT APPEAL COUNSEL
UNDER STATE AND FEDERAL DUE PROCESSGUARANTEES
(US CONST, AM V; CONST 1963, ART 1 17)
Facts supporting each ground raised above stated in summary form:
1. Trail defense counsel failed to provide contextual support, in the form of previously
recorded phone conversations, to debunk the prosecution claim that a later recorded
conversation between complainant and defendant was a “confession .” Trial defense counsel
failed to investigate the case or talk to witnesses, despite filing a lengthy witness list, resulting
in the complete failure to present a defense. Trial defense
counsel failed to investigate the killing of an Illinois federal judge's family, and
therefore failed to tell the jury that Mr. Dufresne, and the group he belonged to, had
nothing to do with the deaths.
2. A substantial amount of highly beneficial evidence has surfaced as a result of
postconviction investigation. This evidence was not presented to Mr. Dufresne's
jury at trial due to the trial court's erroneous grant of an omnibus prosecution
motion to suppress, despite the fact that the prosecution was given great leeway in
in presenting evidence against Mr. Dufresne, due to indffective assistance of trial
counsel, and due to intimidation of witnesses, These factual occurrences resulted in
the complete failure to present a defense.
3 Direct appeal counsel, who also served as trial counsel was ineffective in failing
to raise the issues outlined in points 1, 2, 3, and 5.
4. Appointed trial and direct appeal counsel have lost key pieces of evidence that must
be examined by current postconviction and federal habeas counsel so that he can
properly perform his required duties. The prosecutor refused to provide this evidence,
despite requests made for months, including an FOIA request. This Court should release
this evidence. No Stanaway review has been done of psychiatric and counseling
records in this case, and suce a review should be done by this court.
Issues I, II, and IV were not raised previously by Mr. Dufresne, Issue III could not have
been previously raised as it challenges the effectiveness of direct appeal counsel and
postconviction review is the first opportunity to raise that issue. The other issues noted
were not raised due to ineffective assistance of appellate counsel (see Issue III, brief in
support).
RELIEF REQUESTED
For the reasons stated, Appellant Joel Nathan Dufresne asks that this Court grant his
motion for relief from judgment and order a new trial. Minimally, Appellant requests that
this Court order the release of evidence previously provided to the defense and Stanaway
review pursuant to Issue IV, supra, and then order an evidentiary hearing pursuant to MCR
6.508(C). This Court is asked to order a hearing under Issues I-III even if no relief is afforded
pursuant to Issue IV.
BY: ______________________________
F. MARTIN TIEBER (P25485)
Date: October 1, 2010
STATE OF MICHIGAN)
COUNTY OF INGHAM)
F. MARTIN TIEBER, being first sworn, says that he has read the foregoing and it is true to the best of his
his knowledge and belief.
___________________________________
F. MARTIN TIEBER (P25485)
See attachments below to view the document listed.
*Brief In Support Of Motion For Relief From Judgment
*Appendix A
*Appendix B
*Appendix C
*Appendix D
*Appendix E
*Appendix F
*Judge Johnson's Order on Motion - July 15,2011