Vinson v. Harry

Filing 16

OPINION and ORDER Denying the 1 Petition for a Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KARL F. VINSON,
Petitioner,

Case No. 14-cv-14542

v

Honorable Thomas L. Ludington

THOMAS MACKIE,
Respondent.
__________________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Karl Vinson, presently confined at the Carson City Correctional Facility in
Carson City, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In his application, filed through his attorneys, David A. Moran and Imran J. Syed of the
Michigan Innocence Clinic, petitioner challenges his conviction for first-degree criminal sexual
conduct (CSC), Mich. Comp. Laws § 750.520(b)(1)(a)(victim under 13 years of age), and
breaking and entering a building with the intent to commit a felony (CSC) therein, Mich. Comp.
Laws § 750.110. For the reasons which follow, the petition for a writ of habeas corpus will be
denied pursuant to 28 U.S.C.§ 2244(b)(4).
I.
A.
The relevant facts of Petitioner’s conviction were outlined by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This matter arises from the brutal rape of a nine-year-old female victim in her
own bed. The victim was asleep when she awoke to find a man in her bedroom.
She indicated that she was able to see his facial features because lights, both
within the home and outside, provided illumination within the room. The victim
identified Vinson, claiming that she had seen him previously and she recognized
his voice, although she could not immediately recall his name. She was further
able to identify Vinson as her assailant because she was familiar with him since
his wife had babysat her and her younger sister. Vinson’s mother and her
husband provided an alibi for him at trial, indicating that he was sleeping on their
couch at the time of the assault.
Following the assault, the victim was taken to the hospital. She experienced a
bloody discharge and a deep cut requiring surgical repair. A specimen of vaginal
secretions was obtained from the victim revealing the presence of nonmoving
sperm; however, the specimen was not provided for forensic testing.
Fingerprints were not able to be recovered from the window casing where the
perpetrator entered the victim’s bedroom. The victim’s bed sheet, containing a
“kind of wet” bloodstain, was taken into evidence. The bed sheet was examined
by Sergeant Ronald Badascewski of the Crime Lab Serology and Trace Evidence
Unit. Sergeant Badascewski performed an acid phosphatase test on the stained
area with a positive result for blood and seminal fluid. After washing the stain
from the portion of the sheet, Sergeant Badascewski placed the washing on a
microscope slide and found one complete sperm. He then turned over a portion of
the stain to Paula Lytle, a registered medical technologist, in order to determine
the blood type of the stained area. Lytle detected the presence of blood type O
from the sample, which was consistent with the victim. At trial, Lytle
acknowledged that she only received one sample from the bed sheet stain and that
she did not receive the sperm recovered by Sergeant Badascewski for testing.
When questioned by the prosecutor, Lytle opined that the sample she examined
contained a mixture or combination of blood and seminal fluid.
Lytle also obtained a blood and saliva sample from the victim and determined that
her blood type was O and that she was a secretor. A secretor is defined as:
An individual whose bodily fluids (saliva, semen, vaginal
secretions) contain a water-soluble form of the antigens of the
ABO blood group. Secretors constitute 80% of the population. In
forensic medicine, the examination of fluids has enhanced the
ability of law enforcement officials to develop identifying
information about perpetrators and narrow a field of suspects. [See
mediLexicon,
http://www.medi
lexicon.com/medicaldictionary.php?t=80515 (accessed May 24,
2012).]

-2-

Blood and saliva samples were also obtained from Vinson. Lytle determined at
that time that Vinson’s blood type was AB and that he was a nonsecretor, defined
as “[a]n individual [whose bodily fluids] and saliva that do[ ] not contain antigens
of the ABO blood group.” Id.
During closing argument at trial, the prosecutor stated that the bed sheet contained
a mixture of blood and seminal fluid and argued that the stain came from Vinson
and the victim. The prosecution stated that Vinson was a nonsecretor “along with
20 percent of the population.” The implication of this statement was that
Vinson’s status as a nonsecretor explained the absence of any detectable AB
antigens from the stained bed sheet. The prosecutor also noted that the victim
knew Vinson and had no motivation to lie regarding his identity as the perpetrator
and questioned the veracity of Vinson’s alibi defense.
Although the jury initially requested the testimony of all the expert witnesses,
they rescinded the request and subsequently found Vinson guilty of first-degree
CSC and breaking and entering. Along with the denial of Vinson’s initial appeal
to this Court following his convictions, he also subsequently filed three motions
for relief from judgment and a federal petition for habeas corpus, all of which
were unsuccessful. Vinson later learned that the physical evidence, including the
bed sheet, was destroyed by police. In 2009, Vinson obtained retesting and
analysis confirmed that his blood type is AB. Contrary to the evidence at trial, the
2009 analysis revealed that Vinson actually is a secretor. These results were
confirmed by an independent laboratory.
In September 2009, Vinson again sought relief from judgment premised on
prosecutorial misconduct, ineffective assistance by his trial and appellate counsel,
and newly discovered evidence of his status as an AB secretor. The matter came
back before the original trial judge, who questioned the ability to demonstrate
Vinson’s innocence. The trial judge speculated that Vinson could have been
using a condom at the time of the assault, but defense counsel responded that, at
trial, the prosecution had argued that the semen had come from the rapist. The
trial judge ordered the Michigan State Police (MSP) to determine Vinson’s blood
type and secretor status, and on August 20, 2010, the MSP report confirmed that
Vinson is an AB secretor of ABO antigens.
At the ensuing evidentiary hearing, Lytle was called to testify. Following her
confirmation of her trial testimony along with the testing originally conducted and
results, she acknowledged recent testing demonstrating Vinson’s secretor status.
Following questioning, Lytle opined that testing on a semen stain differed from
the testing performed on a blood stain to determine blood type. Lytle affirmed
that the sample tested contained a mixture of semen and blood and, when asked
where the type O in the stain originated, Lytle replied that it could not have come
from Vinson, but that it could have come from the semen donor and/or the victim.
Further, if the type O detected in the stain originated from the victim, then it
would have come from her bodily fluid and not her blood. Lytle further opined,
-3-

on the basis of the results obtained through the acid phosphatase test performed
by Sergeant Badascewski, that there was a very high presence of semen in the
stain that she tested. She deemed it unlikely that the victim, due to her young age,
would have vaginal secretions. Lytle confirmed that she did not detect any AB
antigenic substances.
On cross-examination, Lytle acknowledged she did not test the “exact same piece
of material” that Sergeant Badascewski tested and detected the presence of
seminal fluid. As Lytle did not repeat the test performed by Sergeant
Badascewski or examine the section of the bed sheet she received for sperm cells,
she could not determine if the material she received contained semen. Lytle
further admitted that she might have cut additional samples from the bed sheet
and performed additional testing had she known Vinson’s status as a secretor.
Upon questioning by the trial judge, Lytle indicated that she had originally
testified that Vinson was a nonsecretor and that she now believed that the O
antigen detected could have been from a male donor of the semen. When asked if
she had known Vinson was a secretor during the original trial, Lytle indicated she
“would testify that his blood type was not detected ... and he could not be the
donor of the O substance in that stain.”
Additional hearings were conducted, with defense counsel presenting Arthur
Young, an expert in forensic serology, who confirmed Vinson’s status as an
“ABO type AB secretor” and that Vinson was a “very strong secretor.” Young
further testified that he would have expected semen to be mixed in with the blood
on the bed sheet and that the O antigens detected were more probably from semen
rather than the victim’s vaginal secretions. In contrast, the prosecution’s witness
Connie Swander of the MSP laboratory indicated that it was possible that the O
antigen detected was derived from the victim’s blood. Swander opined that the
only known fact was the presence of an O antigen but that its origin could not be
ascertained. She further opined that, despite the victim’s young age, vaginal fluid
could be in the stain. Swander did admit that she could not rule out the possibility
that the blood type of the perpetrator of the assault was O.
People v. Vinson, No. 303593, 2012 WL 3046236, at *1-3, (Mich. Ct. App. July 26, 2012).
After holding the post-conviction hearing, the trial court denied petitioner’s motion for
relief from judgment, finding:
But the question is, would this new evidence have caused a different result? Now,
that’s what I understand the standard is.
That young lady’s identification the -- only thing that the scientific evidence
would have done would have bolstered her testimony. And in this case, I don’t
think anybody could conclude. And as I remember Paula Lytle testifying here

-4-

recently, nobody could say that that was from the rapist. I don’t remember her
saying that.
And this Court is not convinced that it would cause a different result in this case.
And because of that, I’m going to deny your motion.
See 3/28/2011 Tr. P. 40, ECF No. 5-25.
In response to the denial Petitioner filed a motion for leave to appeal to the Michigan
Court of Appeals. The Michigan Court of appeals denied Petitioner’s motion upon finding that
the new evidence “does not serve to establish Vinson’s ‘actual innocence.’” People v. Vinson,
No. 303593, 2012 WL 3046236, at * 1, 7, (Mich. Ct. App. July 26, 2012). The Michigan
Supreme Court also denied Petitioner leave to appeal. See People v. Vinson, 843 N.W.2d 493
(Mich. 2014); reconsideration denied, 847 N.W.2d 241 (Mich. 2014).
B.
In 2014, Petitioner filed a motion with the United States Court of Appeals for the Sixth
Circuit for permission to file a second or successive petition. In this proposed successive
petition, Petitioner presented five claims: (1) that his trial counsel was ineffective for failing to
hire his own expert to test Petitioner’s secretor status; (2) that his appellate counsel was
ineffective for failing to raise the first claim on direct appeal; (3) that his trial counsel was
ineffective for failing to adequately cross-examine the State’s forensic witness; (4) that his
appellate counsel was ineffective for failing to raise the inadequate-cross-examination claim on
direct appeal; and (5) that Petitioner is actually innocent.
The Sixth Circuit authorized Petitioner Vinson to file a second petition based on his
claims that his trial counsel was ineffective for failing to adequately cross-examine the State’s
forensic witness, that his appellate counsel was ineffective for failing to raise the inadequatecross-examination claim on direct appeal, and that he is actually innocent. See In Re Karl Vinson,

-5-

No. 14-2521, * 4-6 (6th Cir. Sept. 24, 2015). The Sixth Circuit denied Petitioner permission to
seek habeas relief on his first two claims because he had already raised them in his prior habeas
petition. Id. at *4, 6.
In response Petitioner filed the current § 2254 petition on December 1, 2014, asserting all
five of his proposed claims, including the two that the Sixth Circuit did not authorize him to file.
See ECF Nos. 1-2. On April 13, 2016 Respondent filed its response through the Attorney
General’s Office, arguing that Petitioner’s claims are barred by 28 U.S.C. § 2244(b)(4), are timebarred, procedurally defaulted and/or lack merit.
II.
Petitioner’s successive habeas petition will be dismissed pursuant to 28 U.S.C. §
2244(b)(4) because his claims fail to satisfy the requirements for filing a second or successive
habeas petition. In relevant part, § 2244(b)(2) provides:
A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless-(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
In granting Petitioner leave to file his successive habeas petition, the Sixth Circuit
determined that petitioner had made a prima facie showing that the application satisfied the

-6-

requirements of 28 U.S.C. § 2244. See Ferrazza, 36 F. Supp. 2d at 973. “‘Prima facie’ in this
context means simply sufficient allegations of fact together with some documentation that would
warrant a fuller exploration in the district court.” In re Lott, 366 F.3d 431, 433 (6th Cir. 2004)
(internal quotation omitted). Such a “‘prima facie showing’ ... is not a difficult standard to
meet.” Id. at 432.
28 U.S.C. § 2244(b)(4) requires a district court to “dismiss any claim presented in a
second or successive application that the court of appeals has authorized to be filed unless the
applicant shows that the claim satisfies the requirements of this section.” See In re McDonald,
514 F.3d 539, 543 (6th Cir. 2008). Even after a court of appeals has certified a successive
motion on the basis that the movant has made a prima facie showing that the statutory standard
of § 2244(b) has been satisfied, it is appropriate for a district court to dismiss the petition or
motion if the merits of the successive petition or motion do not ultimately satisfy that same
statutory standard under § 2244(b). See Tyler v. Cain, 533 U.S. 656, 661, n. 3 (2001).
Petitioner’s petition does not satisfy these requirements.
A.
Petitioner’s first two claims must be dismissed because they have not been certified by
the Sixth Circuit. Before a second or successive habeas petition is filed in a federal district court,
a habeas petitioner must move in the appropriate court of appeals for an order authorizing the
district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal,
523 U.S. 637, 641 (1998). A federal district court does not have jurisdiction to entertain a
successive post-conviction motion or petition for writ of habeas corpus in the absence of an order
from the court of appeals authorizing the filing of such a successive motion or petition. See
Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999).

-7-

In the present case, the Sixth Circuit has granted the petitioner permission to file his
second petition pursuant to § 2244(b)(3)(A) with respect to claims three, four and five contained
within the Sixth Circuit Court of Appeal’s order. See (9/24/15, Sixth Cir. Ord., Docket No. 142521, p. 4.). On the other hand, the Sixth Circuit denied Petitioner leave to restate claims that
trial counsel was ineffective for failing to obtain an expert to test the petitioner’s secretor status
and that appellate counsel was ineffective for failing to raise this claim on the petitioner’s direct
appeal. The Court therefore does not have jurisdiction to hear those claims, and they must be
dismissed. See White v. Carter, 27 F.App’x. 312, 313-14 (6th Cir. 2001).
B.
Petitioner also raises two claims asserting that his trial counsel was ineffective for failing
to cross-examine the prosecution’s forensic witness and that his appellate counsel was ineffective
for failing to raise this issue on his direct appeal. To show he was denied the effective assistance
of counsel under federal constitutional standards, a petitioner must satisfy a two prong test. First,
a petitioner must demonstrate that, considering all of the circumstances, counsel’s performance
was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, a petitioner must
overcome a strong presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, a petitioner must overcome the presumption that,
under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S.
at 689. Second, a petitioner must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, a petitioner must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland thus places the burden

-8-

on a petitioner raising a claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been different, but for
counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). The
Strickland standard applies as well to claims of ineffective assistance of appellate counsel. See
Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
Furthermore, on habeas review, “the question is not whether a federal court believes the
state court’s determination under the Strickland standard was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. at 123 (internal quotations omitted). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 562
U.S. 86, 101 (2011). Indeed, “because the Strickland standard is a general standard, a state court
has even more latitude to reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123. Consequently, the § 2254(d)(1) standard applies a “doubly deferential
judicial review” to a Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[a] state court must be granted a deference and
latitude that are not in operation when the case involves review under the Strickland standard
itself.” Harrington, 562 U.S. at 101. Because of this doubly deferential standard, “the question
is not whether counsel’s actions were reasonable.

The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 562 U.S. at 105. A reviewing court must not merely give defense counsel the benefit of
the doubt, but must also affirmatively entertain the range of possible reasons that counsel may
have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011).

-9-

Petitioner claims that his trial counsel was ineffective for failing to adequately crossexamine laboratory specialist Paula Lytle at trial. Petitioner specifically claims that his trial
attorney should have asked Lytle who she believed was the most likely donor of the O-type
antigens in the stain, and alleges that, if asked this question, Lytle would have responded that
“the rapist” was the most likely source of the O-type antigens in the stain. Petitioner further
argues that because he has an AB blood-type, and there was only one perpetrator in this case, he
believes that asking this one question would have led the jury to exonerate him. Petitioner relies
on Lytle’s post-conviction evidentiary hearing testimony in support of his claim.
However, as respondent argues in his brief, the hearing testimony did not confirm his
assertion that, if asked, Lytle would have testified that “the rapist” was definitively the source of
the O-type antigen. The colloquy at issue is as follows:
Q: And in fact, at the time, it was likely that it was an O secretor who left that
sample; is that right?
A: I believe it was definitely an O secretor, the donor of the semen and/or the
victim showing up in there.
Q: But given the acid phosphate test results, it’s likely that the rapist in this case
was an O secretor; is that fair to say?
A: With the strong AP reaction, then I would suspect I am picking up, you know,
some type from the donor of the sperm.
Q: And if you were asked these questions at the original trial, you would have
explained all that, wouldn’t you have?
A: Yes.
Q: But none of the attorneys asked you about any of that, did they?
A: No they did not.
9/21/10 Tr. at 30-31, ECF No. 5-18 (emphasis added).

- 10 -

“[C]ourts generally entrust cross-examination techniques, like other matters of trial
strategy, to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp. 2d 629, 651
(E.D. Mich. 2002). “Impeachment strategy is a matter of trial tactics, and tactical decisions are
not ineffective assistance of counsel simply because in retrospect better tactics may have been
available.” Id.
Petitioner has not demonstrated that trial counsel was ineffective for failing to ask Ms.
Lytle who she believed was the most likely donor of the O-type antigens in the stain, because he
has failed to show that she would have given an exculpatory response. Ms. Lytle testified at the
post-conviction hearing that the O-type antigen could have come from either the rapist or the
victim. Id. The victim has O-type blood and is an O-type secretor. Connie Swander, Acting
Assistant Division Director in charge of the Michigan State Police forensic science laboratories,
testified that the O-type antigens detected in the stain could have come from the victim’s red
blood cells, vaginal fluid, saliva, urine, or any other bodily fluids or cells from her body. See
12/3/31 Tr. 28-36, ECF No. 5-20. Finally, the portion of the bed sheet that Sergeant Badascewski
provided to Lytle was different from the section he tested for the presence of semen, and Lytle
did not sample for seminal fluid before conducting the test to determine blood type.
Petitioner’s ineffective assistance of trial counsel claim must fail, because even if counsel
was deficient in failing to ask Ms. Lytle to speculate about the likely donor of the O-type antigen
on the bed sheet, Petitioner has failed to demonstrate any reasonable probability, based on the
evidence presented at trial and at the post-conviction hearing, that the cross-examination of this
witness by defense counsel would have changed the result of the proceeding. Moss v. Hofbauer,
286 F.3d 851, 866 (6th Cir. 2002). Indeed, it is equally as likely that Petitioner’s trial counsel
intentionally chose not to ask the question to avoid a response that was not helpful to Petitioner.

- 11 -

Just as Petitioner has not shown that trial counsel was ineffective for failing to crossexamine Ms. Lytle about who the donor of the O-type antigens was in the stain recovered from
the crime scene, Petitioner has not shown that his appellate counsel was ineffective for failing to
raise the claim on direct appeal. The Sixth Amendment guarantees a defendant the right to the
effective assistance of appellate counsel on appeals of right. See Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). However, court appointed counsel does not have a constitutional duty to raise
every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Because Petitioner has failed to show that his trial counsel was ineffective, Petitioner is unable to
establish that appellate counsel was ineffective for failing to raise his ineffective assistance of
trial counsel claim on his direct appeal. See e.g. Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th
Cir. 2008); Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999).
C.
Finally, Petitioner alleges that his continued incarceration is unconstitutional because he
is actually innocent. Petitioner asserts that he is entitled to relief on this claim because there is
new evidence that could not have been previously discovered through the exercise of due
diligence. Specifically, Petitioner claims that evidence shows that he is a Type-AB secretor, and
therefore it is “all but scientifically impossible that [he] could have been the perpetrator of the
crimes for which he was convicted.” See Memorandum in Support of Petition for Writ of Habeas
Corpus, p. 22, ECF No. 2.
i.
In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that claims of
actual innocence based on newly discovered evidence fail to state a claim for federal habeas
relief absent an independent constitutional violation occurring in the underlying state criminal

- 12 -

proceeding. Federal habeas courts sit to ensure that individuals are not imprisoned in violation
of the constitution, not to correct errors of fact. Id., see also McQuiggin v. Perkins, 133 S. Ct.
1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.”). Freestanding claims of actual innocence
are thus not cognizable on federal habeas review, absent independent allegations of
constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007)(collecting
cases).
Moreover, the Supreme Court’s subsequent decision in House v. Bell, 547 U.S. 518
(2006) does not alter this Court’s adjudication of Petitioner’s claim, as Petitioner argues. In
House the Supreme Court declined to resolve whether a habeas petitioner may bring a
freestanding claim of actual innocence. Id. at 554-55. Although the Supreme Court noted in
House that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after
trial would render the execution of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a claim,” Id. (quoting Herrera, 506 U.S.
at 417), the Supreme Court has declined to recognize a freestanding innocence claim in habeas
corpus, outside of the death-penalty context. Petitioner is thus not entitled to relief for his
freestanding actual innocence claim. See Wright v. Stegall, 247 F.App’x. 709, 711 (6th Cir.
2007).
ii.
Even considering the merits of Petitioner’s actual innocence claim does not entitle him to
any relief. In rejecting Petitioner’s actual innocence claim in his post-conviction appeal, the
Michigan Court of Appeals stated as follows:

- 13 -

The burden is on Vinson, “on all parts of the Cress test,2 ... to make an affirmative
showing that [he] “could not, using reasonable diligence, have discovered and
produced the evidence at trial[.]” Rao, 491 Mich. at 289, 3 citing Cress, 468 Mich.
at 692. As our Supreme Court noted, even if a defendant is not aware “of the
actual medical information” it “begs the question why defendant lacked
awareness at the time of trial[.]” Rao, 491 Mich. at 287 (emphasis in original). If
testing of his secretor status was as pivotal at trial as is now claimed on appeal,
reasonable diligence would have required, at the very least, that Vinson request
independent laboratory testing. Id. at 290. He was certainly aware of the
evidence, the manner of testing, and that results contrary to those obtained by the
prosecution’s witness could have provided him with support for his defense that
he was not the perpetrator. Yet, Vinson fails to offer any viable reason to explain
why he did not seek independent testing at the time of trial. When viewed in the
context of reasonable diligence, Vinson should have minimally procured
independent testing or sought the trial court’s assistance in procuring such testing.
“Michigan courts have held that a defendant’s awareness of the evidence at the
time of trial precludes a finding that the evidence is newly discovered, even if the
evidence is claimed to have been ‘unavailable’ at the time of trial.” Id. at 282.
Additionally, not only were elements one and three not satisfied, but we also hold
that this new evidence would not make a different result probable on remand.
Our review of the original trial transcripts does not support Vinson’s contention
that the prosecution’s case hinged on the forensic evidence. Rather, the
prosecutor placed significant emphasis on the victim’s identification of Vinson as
the perpetrator of the rape. In actuality, very little testimony was elicited
regarding Vinson’s alleged status as a nonsecretor and its possible relationship to
the physical evidence.
It is necessary to recognize that we are not concerned with how the alleged new
evidence would have impacted the jury’s determination at the original trial.
Rather, we are required to determine whether the evidence of Vinson’s status as a
secretor would make a different result probable upon retrial. Lytle acknowledged
at the evidentiary hearing that she was uncertain whether the material or sample
she tested actually contained seminal fluid. The portion of the bed sheet that
Sergeant Badascewski provided to Lytle was different from the section he tested,
and Lytle did not sample for seminal fluid before conducting the test to determine
blood type. The intact sperm sample that Sergeant Badascewski recovered was
never tested. In addition, we cannot ignore that the victim positively identified
Vinson as the rapist on the basis of her prior familiarity with him and her ability
to observe him during the assault and identify his features and voice. This
identification is not refuted by the scientific evidence as it is no longer possible to

2

People v. Cress, 468 Mich, 678, 664 N.W. 2d 174 (2003).

3

People v. Rao, 491 Mich. 271, 815 N.W. 2d 105 (2012).
- 14 -

ascertain with certainty what substance in the sample resulted in the detection of
the O antigen.
Vinson, 2012 WL 3046236, at *6.
Petitioner’s contention that his status as a secretor constitutes newly discovered evidence
is unfounded for the reasons stated by the Michigan Court of Appeals. Specifically, Petitioner
cannot show that he exercised reasonable diligence because, at the time of trial, he knew of the
evidence, the manner of testing, and that any findings contrary to the results obtained by the
prosecution’s witness would “have provided him with support for his defense that he was not the
perpetrator.” Vinson, 2012 WL 3046236, at *6. Petitioner’s claim of newly discovered evidence
is thus without merit.
Furthermore, the evidence does not demonstrate Petitioner’s actual innocence. Because
“[t]he portion of the bed sheet that Sergeant Badascewski provided to Lytle was different from
the section he tested, and Lytle did not sample for seminal fluid before conducting the test to
determine blood type” and due to the possibility that the O antigen came from the victim,
Petitioner’s contention that it is scientifically impossible for a reasonable trier of fact to find that
he was is perpetrator of the crime is unfounded. Lytle determined that there were O-type
antigens present in the stain, indicating that the non-blood fluids came from a person with O-type
blood. 9/21/2010 Tr. p. 28, ECF No. 5-18. Such secretions would include saliva, vaginal
secretions, perspiration, and tears. Id. at 29. Lytle did not test for sperm Id. at 25. It is
undisputed that the victim has O-type blood and is an O-type secretor. See Trial Tr. pp. 75-76,
ECF No. 4. Connie Swander, Acting Assistant Division Director in charge of the Michigan State
Police forensic science laboratories, testified that, based on the testing performed in 1986 by
Lytle, the O-type antigens detected in the stain could have come from the victim’s red blood
cells, vaginal fluid, saliva, urine, or any other bodily fluids or cells from her body. 12/3/2010 Tr.
- 15 -

pp. 35-37, ECF No. 5-20. Because the O antigens could have come from the victim, Petitioner’s
AB secretion status does not rule him out as the perpetrator of the crime.
Furthermore, the trial court placed great emphasis on the compelling testimony of the
victim in finding support for the petitioner’s convictions, and “the testimony of a single,
uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a
conviction.” Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (internal citations omitted).
Here, the victim specifically identified Petitioner as her attacker, testifying that she had seen him
previously, that she recognized his voice, and that she was familiar with him since his wife had
babysat her and her younger sister. See People v. Vinson, No. 303593, 2012 WL 3046236, at *1
(Mich. Ct. App. July 26, 2012). Finally, any actual innocence claim is undercut by Petitioner’s
own admissions to his prison psychologist that he had sexual contact with the victim on a
different occasion. See Psych. Rep., ECF No. 15.
For all of these reasons, Petitioner’s actual innocence claim is without merit.
III.
Before a petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claim debatable or wrong. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

“A petitioner satisfies this standard by

demonstrating that ... jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying

- 16 -

that standard, a district court may not conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37.
When a court denies relief on procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petition should be allowed to
proceed further. In such a circumstance, no appeal would be warranted. Id.
Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right.

Accordingly, a certificate of

appealability is not warranted in this case. On the other hand, Petitioner will be granted leave to
appeal in forma pauperis. Whereas a certificate of appealability may only be granted if petitioner
makes a substantial showing of the denial of a constitutional right, a court may grant IFP status if
it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not frivolous; it does
not require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765.
Although jurists of reason would not debate this Court’s resolution of Petitioner’s claims, the
issues are not frivolous; therefore, an appeal could be taken in good faith and the petitioner may
proceed in forma pauperis on appeal. Id.
IV.

- 17 -

Accordingly, it is ORDERED that Petitioner’s petition for a writ of habeas corpus is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that Petitioner is GRANTED LEAVE to appeal in forma
pauperis.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 6, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on December 6, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

- 18 -