Bodrie v. Lafler

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Granting in Part a Certificate of Appealability, and Granting Leave to Proceed In Forma Pauperis on Appeal Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GEORGE LAVERN BODRIE,
Petitioner,
v.

CASE NO. 08-11169
HONORABLE GERALD E. ROSEN

BLAINE C. LAFLER,
Respondent.
________________________________/
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter is pending before the Court on a pro se habeas corpus petition challenging
petitioner George Lavern Bodrie’s convictions for nine counts of criminal sexual conduct (CSC).
Petitioner alleges that his trial and appellate attorneys were ineffective, that the trial court erred
on collateral review of his convictions, and that he is entitled to an evidentiary hearing.
Respondent Blaine C. Lafler urges the Court to deny the petition on the ground that Petitioner’s
claims lack merit and that Petitioner failed to comply with the Court’s order granting a stay in
this case. The Court agrees that Petitioner’s claims do not warrant habeas relief. Consequently,
the petition will be denied on that basis.
I. BACKGROUND
A. The Facts
Petitioner was charged in Tuscola County, Michigan with one count of first-degree CSC
and eight counts of second-degree CSC. The charges arose from allegations that Petitioner
sexually abused his developmentally impaired stepdaughter by penetrating her vagina with his

finger, by touching her breasts and genital area, and by making her touch his penis. The
incidents occurred in 2002 when the girl was fourteen years old. Petitioner was tried before a
jury in Tuscola County Circuit Court where the evidence established the following facts.
Teresa Bodrie
Petitioner’s wife, Teresa Bodrie, testified that she was living with Petitioner, her two
daughters (including the complainant), and her son in the early part of 2002. Mrs. Bodrie
explained that the complainant had a learning disability and was slow in understanding things
due to permanent brain damage that she sustained as an infant. In July of 2002, Mrs. Bodrie’s
four-year-old nephew drowned in the Bodrie’s swimming pool. This led to Mrs. Bodrie’s
hospitalization in a psychiatric ward for eight days in August of 2002. When she was released
from the hospital on August 8, 2002, the complainant informed her that Petitioner had been
touching her. Mrs. Bodrie then took the complainant to the state police post.
Mrs. Bodrie also testified about an incident that occurred one day in 1995 when she came
home from work. Petitioner met her as she walked in the house and informed her that he had
fallen asleep on a lounge chair in the living room and woken up to find the complainant touching
his private area on the outside of his clothes. Petitioner stated that he later went to sleep naked
in their bedroom and woke up to find the complainant touching his penis. The complainant was
seven years old at the time and, according to Mrs. Bodrie, Petitioner had said they needed to get
help for the complainant. Mrs. Bodrie took the complainant to List Psychological Services on
the following day, and the State’s protective services agency subsequently became involved.
Although a criminal investigation against Petitioner resulted from the allegations, the charge was
dismissed at the preliminary hearing because the prosecutor and Mrs. Bodrie thought the

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complainant was not emotionally capable of testifying.
The Complainant
The complainant was sixteen years old at trial. She testified that, in 2002, she was living
with Petitioner, who was her stepfather, and her mother, sister, and brother. In March of 2002,
Petitioner inserted his finger in her vagina and touched her breasts in the living room of their
home while her mother was working. Petitioner also took her hand and made her touch his
penis. In August of 2002, while her mother was in the hospital, Petitioner came in her bedroom
and touched her breasts and vagina above and below her clothing. There was a third incident
where Petitioner touched her breasts and vagina above and below her clothing and made her put
her hand on his penis.
The complainant stated that, initially she may have told her grandmother and aunt that
nothing happened, but she later disclosed what had happened to them. And when her mother got
out of the hospital, she told her mother what Petitioner had done. She also informed a state
police officer what had happened, and she told the truth when she talked to the officer.
Kyle Hoskins
Kyle Hoskins testified that she was employed at the State police crime lab in Bridgeport,
Michigan. She analyzed the complainant’s underwear and found no evidence of semen, blood,
or pubic hair.
Joyce Rahn
The complainant’s grandmother, Joyce Rahn, testified that she picked up Teresa Bodrie
from the hospital in August of 2002. On the same day, Ms. Rahn spoke with the complainant
and asked her whether her father had ever touched her. At first, the complainant said, “No.”

3

But when Ms. Rahn assured the complainant that nobody was going to hurt her, the complainant
informed her that her father had touched her breasts. Ms. Rahn did not suggest any particular
type of touching to the complainant and she had not mentioned any body parts to the
complainant prior to that time. She believed what the complainant had said and, after talking to
the complainant’s mother, they went to the state police post. She did not tell the complainant
what to say to the police.
Hilary Hare
State trooper Hilary Hare testified that she spoke with the complainant at the police post
on or about August 8, 2002. After Trooper Hare determined that the complainant was capable of
telling the truth, the complainant told her about some sexual contact with Petitioner. Trooper
Hare then contacted Petitioner and informed him of the complainant’s allegations. During her
interview with Petitioner, Petitioner at first said that he thought his wife and mother-in-law
influenced the complainant to make up the accusations due to a pending divorce and custody
dispute. But when Trooper Hare pointed out that the complainant was his stepchild and that
there would be no custody dispute over her, Petitioner did not have a response.
During the interview, Trooper Hare asked Petitioner what happened when his daughters
went in his bedroom during his wife’s hospitalization. Petitioner responded, “As far as I know,
nothing happened.” Petitioner denied going into the complainant’s bedroom while his wife was
in the hospital, and when Trooper Hare asked him about watching a pornographic movie with the
complainant, he claimed that he had found the movie alongside the road. Although the police
confiscated Petitioner’s computer to search for pornography, they were unable to find any
evidence because the hard drive had been destroyed.

4

Petitioner’s Biological Daughter
Petitioner’s biological daughter testified for the defense that, when the state trooper asked
her whether her father had touched her sister, she informed the trooper that she did not know.
The biological daughter also testified that she and the complainant sometimes slept in their
father’s bedroom and that, when their mother was in the hospital, their father told them he
wanted to get rid of their horses because the family spent a lot of money on grain and bedding.
On cross-examination, the biological daughter stated that she thought her father treated her
differently from the complainant and that she became suspicious when her sister began to spend
a lot of time with their father. The affection they displayed toward each other did not seem right
to her.
Barbara Hatfield
Barbara Hatfield also testified for the defense. She explained that she was Teresa
Bodrie’s cousin and that she went to the hospital to pick up Mrs. Bodrie on August 8, 2002.
Mrs. Bodrie’s mother, Joyce Rahn, was already at the hospital, and the three of them went from
the hospital to pick up Mrs. Bodrie’s daughters at April McQueen’s house. At Ms. McQueen’s
house, Joyce Rahn asked the complainant what happened while Mrs. Bodrie was in the hospital.
Initially, the complainant did not respond, but Ms. Rahn asked the complainant several times
during an eight- to ten-minute conversation whether the complainant’s father had touched her
“down below.” The complainant then said that, while she was sleeping on the couch, Petitioner
pulled the blankets back and touched her breasts. On hearing that, Ms. Hatfield and Ms. Rahn
approached Mrs. Bodrie. They subsequently went to the state police post.
George Lavern Bodrie

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Petitioner testified that, after his wife’s nephew drowned in late July of 2002, his
marriage changed and he could not handle the financial burden of maintaining two horses.
During his wife’s hospitalization in August of 2002, he slept in his bedroom or on the couch in
the living room. He did not know where his daughters slept because they usually went to bed
later than he did, but he did tell the state trooper that the girls sometimes slept in his bedroom
with him.
Petitioner also testified that, while his wife was in the hospital, he talked to his daughters
about divorcing their mother. He explained to them that, if their mother did not get rid the
horses, he was planning to get a divorce and he wanted to know with whom they preferred to
stay. Even though the complainant was not his biological daughter, he wanted to begin making
arrangements for her. He asked the girls to keep this a secret, but they told their mother about
his divorce plans while she was in the hospital.
Petitioner further testified that he was responsible for disciplining his biological daughter
and his two stepchildren. The children did not receive allowances, but they did receive gifts for
doing a good job, and all of the children had pets. He denied treating one child better than
another child, but he admitted there may have a time when one child received special attention
for his or her efforts.
As for the pornographic movie in the house, Petitioner stated that his brother found it
alongside the road and gave it to him. He denied watching pornography on his computer while
the children were present, and he denied doing anything inappropriate to the complainant. He
claimed that the allegations against him were untrue, that he never touched the complainant’s
breasts or vagina, and that he did not insert his finger in the complainant’s vagina. He also said

6

that he never made the complainant touch his penis and that he did not think she was being
truthful.
Petitioner also denied trying to damage his computer. He maintained that the computer
was working when he last used it and that he had no reason to tamper with it because the police
had not yet contacted him then, nor talked to him about the computer.
Regarding the 1995 incidents, Petitioner testified that the complainant had been shifting
in the chair and had put her hand on his private part to support her weight as she moved around.
He did not consider the physical contact with his private part to be sexual. Later that same night,
however, he woke up nude in his bedroom and discovered the complainant touching his penis
with her hand. He did not know whether he ejaculated, but he had an erection, and his belly was
wet.
On October 8, 2003, the jury found Petitioner guilty, as charged, of one count of firstdegree CSC, Mich. Comp. Laws § 750.520b(1)(b)(ii) (sexual penetration of a relative who is 13,
14, or 15 years old), and eight counts of second-degree CSC, Mich. Comp. Laws §
750.520c(1)(b)(ii) (sexual contact with a relative who is 13, 14, or 15 years old). On December
8, 2003, the trial court sentenced Petitioner to a term of ten to thirty years in prison for the firstdegree CSC conviction and to a concurrent term of five to fifteen years for the second-degree
CSC convictions.
B. The Post-Conviction Proceedings
1. The Appeal, Habeas Petition, and State Collateral Proceedings
In an appeal of right, Petitioner asserted that the trial court erred by admitting evidence of
the 1995 incidents of sexual contact between him and his stepdaughter. The Michigan Court of

7

Appeals disagreed and affirmed Petitioner’s convictions in an unpublished, per curiam opinion.
See People v. Bodrie, No.252969 (Mich. Ct. App. Mar. 15, 2005). On December 9, 2005, the
Michigan Supreme Court denied leave to appeal because it was not persuaded to review the
issue. See People v. Bodrie, 474 Mich. 951; 706 N.W.2d 729 (2005) (table).1
On December 4, 2006, Petitioner filed a motion for relief from judgment in which he
alleged that his trial and appellate attorneys were ineffective. The trial court denied Petitioner’s
motion and his subsequent motion to extend the time to file a motion for reconsideration.
On or about December 4, 2007, Petitioner filed a motion to include supplemental
materials and for further alternative relief. The trial court denied Petitioner’s motion and his
motion for reconsideration. Petitioner appealed the trial court’s denial of his post-conviction
motions, but the Michigan Court of Appeals denied leave to appeal for failure to establish
entitlement to relief under Michigan Court Rule 6.508(D). See People v. Bodrie, No. 284198
(Mich. Ct. App. Sept. 11, 2008) (unpublished). On February 24, 2009, the Michigan Supreme
Court denied leave to appeal for the same reason. See People v. Bodrie, 483 Mich. 894; 760
N.W.2d 474 (2009) (table).
Meanwhile, on March 19, 2008, Petitioner filed a habeas corpus petition in this Court,
and on or about March 31, 2008, he filed a second or successive motion for post-conviction
relief in state court. The habeas petition alleged that the trial court erroneously admitted
evidence of other “bad acts” at trial and that Petitioner’s trial and appellate attorneys were
ineffective. Petitioner asked the Court to hold his habeas petition in abeyance while he pursued

1

Justice Marilyn J. Kelly voted to grant leave to appeal to examine the viability of the
rule relied on by the trial court.
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additional remedies in state court. On March 28, 2008, the Court granted Petitioner’s request for
a stay and closed this case for administrative purposes. The Court conditioned its stay on
Petitioner filing an amended habeas corpus petition and motion for reinstatement within ninety
days of exhausting state remedies.
The state trial court subsequently held an evidentiary hearing on Petitioner’s second or
successive motion for relief from judgment, which purported to have new evidence that the
complainant had recanted her trial testimony. The complainant was twenty years old at the time
of the hearing on Petitioner’s motion. She claimed that she had testified truthfully at trial and
would not change her prior testimony. The trial court then denied Petitioner’s motion for relief
from judgment. Petitioner moved for an extension of time to file a motion for reconsideration,
and because the state trial court failed to rule on his motion, he filed a complaint for
superintending control. The Michigan Court of Appeals denied his complaint, and on November
22, 2010, the Michigan Supreme Court denied relief because it was not persuaded to review the
question presented to it. See Bodrie v. Tuscola Circuit Court, 488 Mich. 948; 790 N.W.2d 684
(2010) (table).
2. The Amended Petition and Answer
On February 15, 2011, Petitioner moved for reinstatement of this case and for leave to
file an amended habeas corpus petition. The Court granted Petitioner’s motion for reinstatement,
and on September 28, 2011, Respondent filed an answer to the amended petition.
The Court understands the amended petition to allege that: (I) trial counsel was
ineffective for failing to (A) discover and develop impeachment evidence, (B) discover and
develop evidentiary support for the asserted defense, (C) timely object to the prosecutor’s

9

closing argument, and (D) investigate and locate an expert witness; (II) the trial court erred by
denying relief from judgment where Petitioner’s claims adequately set forth “cause and
prejudice” for failing to raise his claims on direct appeal; (III) the trial court erred by denying
relief from judgment where trial counsel failed to object to the prosecutor’s argument about prior
“bad acts” and where counsel failed to investigate and call witnesses in Petitioner’s behalf; (IV)
appellate counsel was ineffective for failing to include viable issues on appeal; (V) Petitioner is
entitled to an evidentiary hearing on his ineffective-assistance-of-counsel claims; (VI) the trial
court erred by denying Petitioner’s motion for further alternative relief and to include
supplemental material; and (VII) the trial court erred by denying Petitioner’s supplemental
motion to correct a typographical error or mistake. Respondent maintains that these claims are
barred by the statute of limitations because Petitioner did not return to federal court within ninety
days of exhausting state remedies for his claims. The Court has determined that Petitioner’s
claims lack substantive merit. Thus, it is unnecessary to determine whether Petitioner also failed
to comply with the one-year statute of limitations for habeas cases. The Court will proceed to
address Petitioner’s claims, using the following standard of review.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).” Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770, 783
(2011). Pursuant to § 2254, state prisoners are not entitled to the writ of habeas corpus unless
the state court’s adjudication of their claims on the merits
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
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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.

28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant the writ 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. Under the
“unreasonable application” clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
“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, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). “[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). To obtain a writ of
habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on his
or her claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at
786-87.
III. DISCUSSION
A. Trial Counsel
Petitioner’s first and third claims allege ineffective assistance of trial counsel. The trial
court addressed this issue in its order denying Petitioner’s motion for relief from judgment. The
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court stated that trial counsel did not provide ineffective assistance of counsel by choosing not to
present evidence or witnesses that could have attacked the victim’s credibility. The court also
stated that Petitioner had failed to establish that trial counsel’s representation fell below an
objective standard of reasonableness and that counsel’s representation prejudiced him so as to
deprive him of a fair trial.2
To prevail on his ineffective-assistance-of-counsel claims, Petitioner must demonstrate
that his trial attorney’s “performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The “deficient
performance” prong “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, Petitioner must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694 . “This does not require a showing that
counsel’s actions ‘more likely than not altered the outcome,’” but “[t]he likelihood of a different
result must be substantial, not just conceivable.” Harrington v. Richter, 131 S. Ct. at 792
(quoting Strickland v. Washington, 466 U.S. at 693). “The standards created by Strickland and §

2

The trial court also stated that Petitioner could have raised his claims about trial
counsel on appeal and, therefore, the trial court could not grant relief on the issues related to the
1995 similar acts evidence pursuant to Michigan Court Rule 6.508(D). To the extent that
Petitioner’s claims may be procedurally defaulted as a result of the trial court’s reference to
Petitioner’s failure to raise his claims on direct appeal, Respondent waived the defense by
asserting that Petitioner’s claims are not procedurally defaulted. See Flood v. Phillips, 90 F.
App’x 108, 114 (6th Cir. 2004) (explaining that the State was required to assert procedural
default as an affirmative defense in its responsive pleading and that it waived the defense when it
failed to do so).
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2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Id. at 788 (internal and end citations omitted).
1. The Alleged Failure to Discover, Investigate, and Develop Impeachment
Evidence
(Claims I.A. and III)
As noted above, Petitioner’s wife testified at trial that, in 1995 when the complainant was
seven years old, Petitioner informed her that the complainant had touched his penis and needed
counseling. Although the trial court granted the prosecutor’s request to admit the evidence,3
Petitioner contends that his trial attorney should have attempted to rebut Mrs. Bodrie’s testimony
about the 1995 incidents by establishing that he did not intend to do anything illegal or wrong in
1995.
Contrary to Petitioner’s claim, defense counsel did object and attempt to rebut Mrs.

3

Before trial, the prosecutor filed a motion in limine to admit the evidence. Petitioner’s
attorney at the time attempted to prevent the prosecutor from introducing the evidence on the
ground that there was an insufficient nexus between the prior conduct and the charged conduct.
The prosecutor, however, maintained that the evidence was admissible to show intent, scheme,
system of doing an act, and lack of mistake or accident, and the trial court held that the evidence
was admissible under Michigan Rule of Evidence 404(B). (Evidentiary Hr’g Tr. Nov. 4, 2002,
3-7.)
Petitioner had a different attorney at trial. The trial attorney also objected to the
evidence, but the trial court overruled the objection on the basis of the court’s prior ruling. (Trial
Tr. vol. I, Oct. 7, 2003, 96-97, 100-101.)
On direct appeal, the Michigan Court of Appeals agreed with the trial court that evidence
of sexual contact between Petitioner and his stepdaughter in 1995 was admissible. The Court of
Appeals noted that there were several similarities between the 1995 and 2002 incidents,
including the identity of the alleged victim, the time of the day when the contact occurred, the
type of contact, and the fact that the complainant’s mother was not at home when the contact
occurred. The Court of Appeals concluded that these similarities were sufficient to show that
Petitioner used a common scheme, plan, or system to assault his stepdaughter and, therefore, the
evidence was admissible.
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Bodrie’s comments about the 1995 incidents. As explained in footnote three, defense counsel
lodged a formal objection to Mrs. Bodrie’s testimony when the prosecutor raised the issue at
trial. Although the trial court denied the objection, the court treated the objection as a continuing
objection. (Trial Tr. vol. I, Oct. 7, 2003, 96-97.) Defense counsel raised another objection to the
testimony a short time later (id. at 100), and, on cross-examination of Mrs. Bodrie, defense
counsel elicited testimony that the criminal charges against Petitioner in 1995 were dismissed at
the preliminary examination at Mrs. Bodrie’s request and on the prosecutor’s recommendation.
(Id. at 113-15).
The issue arose again during Petitioner’s testimony. When the prosecutor asked
Petitioner whether there were two separate incidents of sexual contact between the complainant
and him in 1995, defense counsel objected on the grounds that those charges were dismissed and
that there was no sexual contact. (Trial Tr. vol. II, Oct. 8, 2003, 95.)
Petitioner contends that defense counsel should have discovered and developed
additional impeachment evidence to undermine his wife’s testimony about the incidents.
According to Petitioner, trial counsel should have established that: (1) the complainant made
unsubstantiated claims about her brother being sexually abusive; (2) the social worker who
investigated the 1995 incidents concluded that Petitioner was telling the truth about the 1995
incidents; and (3) the complainant came from a highly dysfunctional family, a fact which could
have led the jury to find it plausible that the complainant engaged in sex play with him at the age
of seven.
Although defense counsel failed to elicit testimony that a protective services worker
apparently did not think Petitioner sexually molested the complainant in 1995, see Petitioner’s

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Attachment N (Children’s Protective Services Investigative Summary), page 3, ¶ 3, defense
counsel did elicit testimony that Mrs. Bodrie came from an abusive family. Counsel was
prevented from asking any more questions about the family’s history when the trial court
sustained the prosecutor’s objection to the relevance of the question. (Trial Tr. vol. I, Oct 7,
2003, 115-16.)
As for whether the complainant made unsubstantiated claims of sexual abuse by her
brother, an exhibit to the habeas petition indicates that the complainant informed her therapist
that her brother had been coming in her room at night and touching her. See Petitioner’s
Attachment M (List Psychological Services psychological evaluation of the complainant), p. 2, ¶
3. Although the complainant initially denied being touched by her brother when evaluated by
List Psychological Services, she shrugged her shoulders and did not respond when asked a
second time. (Id., page 4, ¶ 2.) Mrs. Bodrie, moreover, suspected that the complainant’s brother
was inappropriately touching both the complainant and the complainant’s sister. See Petitioner’s
Attachment N, pages 2-3. The case against the complainant’s brother was closed on the ground
that the allegations were unsubstantiated, (id., page 4), but, if defense counsel had questioned the
complainant about her brother’s conduct, she might have confirmed that her brother had
inappropriately touched her or her sister. And the prosecutor could have brought out the fact that
both Petitioner and his wife at one time suspected that the complainant’s brother had been
sexually abusing the complainant. See Petitioner’s Attachment M, page 2, ¶ 3.)
Even if defense counsel’s performance was deficient, the deficient performance did not
prejudice the defense because Petitioner personally rebutted his wife’s testimony about the 1995
incidents. He testified on cross-examination by the prosecutor that the complainant’s initial

15

contact with his genitals in 1995 occurred as she was shifting in the chair. He made it appear as
though the sexual contact was accidental. Regarding the complainant’s subsequent touching of
his penis on the same night, Petitioner stated that he had been sleeping and was awakened to find
the complainant touching him. He insinuated that he was completely innocent of any
wrongdoing for this second incident of touching because the complainant had initiated the
contact. (Trial Tr. vol. II, Oct. 8, 2003, 95-101.) Petitioner’s own testimony served to rebut
Mrs. Bodrie’s testimony about the 1995 incidents.
Furthermore, the trial court charged the jurors to be very careful about how they viewed
evidence that Petitioner had engaged in improper sexual conduct for which he was not on trial.
The court stated that, if the jurors believed the evidence, they could consider it only for the
limited purpose of deciding whether testimony about the charged acts was believable. The court
instructed the jurors not to consider the evidence for any other purpose and not to conclude that
it proved Petitioner was a bad person or likely to commit a crime. The court also charged the
jurors not to convict Petitioner simply because they thought he was guilty of other bad conduct.
(Id. at 179.)
Given the trial court’s jury instructions, defense counsel’s objections, Petitioner’s
testimony, and the fact that the complainant’s allegations about her brother were not entirely
unsubstantiated, it is unlikely that additional impeachment evidence regarding the 1995 incidents
would have made a difference in the outcome of the trial. Petitioner therefore has no right to
habeas corpus relief on the basis of his claim about trial counsel’s alleged failure to discover,
investigate, and produce evidence to impeach Mrs. Bodrie’s testimony about the 1995 incidents.
2. The Alleged Failure to Discover and Develop Support the Asserted Defense
(Claim I.B.)
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In his opening statement, defense counsel explained to the jury that, while Mrs. Bodrie
was hospitalized in 2002, Petitioner informed the complainant and his biological daughter that he
intended to divorce his wife and seek custody of his biological daughter. Defense counsel
insinuated that Mrs. Bodrie was motivated to report Petitioner to the state police for sexual abuse
after she learned from her daughters that Petitioner wanted to divorce her. (Trial Tr. vol. I, Oct.
7, 2003, 85-86.)
Petitioner claims that defense counsel subsequently failed to offer a plausible explanation
as to why the complainant would manufacture her allegations or why Petitioner’s threat of
divorce would prompt Mrs. Bodrie to go to the state police. According to Petitioner, defense
counsel should have demonstrated to the jury that Mrs. Bodrie encouraged the complainant to
falsify her allegations so that Petitioner would be convicted and she could take custody of
Petitioner’s biological daughter without any challenge from Petitioner.
The record reveals that defense counsel made several attempts to offer a motive for the
complainant’s allegations against him. Defense counsel asked Mrs. Bodrie on cross-examination
whether the complainant had informed her that Petitioner was seeking custody of his biological
daughter. Mrs. Bodrie responded that she did learn from her daughters that Petitioner was
threatening to get a divorce if she did not get rid of her horses. (Id. at 111.) At a subsequent
point in the trial, defense counsel argued that the case was based on a custody issue in the
divorce case, which was unresolved at the time and had been pending since August of 2002. (Id.
at 129.)
Defense counsel also attempted to develop the defense theory on direct examination of
Petitioner. Defense counsel asked Petitioner whether he had informed the state trooper who, in

17

his opinion, made the allegations against him. Petitioner responded that he had suspected his
wife and her mother because he and his wife were going through a divorce and he was planning
to seek custody of his biological daughter. (Trial Tr., vol. II, Oct. 8, 2003, 71.) Defense counsel
subsequently asked Petitioner why the complainant might be falsifying her allegations about
him. This attempt to develop the defense theory was thwarted by the prosecutor’s objection to
the question on the grounds that it was irrelevant and that Petitioner would not know the
complainant’s state of mind. The trial court sustained the objection. (Id. at 80-81.)
During closing arguments, defense counsel maintained that Petitioner was innocent, that
the complainant appeared to be testifying from a script, and that the complainant’s grandmother
had pressured the complainant into making her allegations after ten minutes of coaching.
Defense counsel argued that they were actually trying a divorce case and a custody issue. He
stated that Petitioner was on trial because Mrs. Bodrie wanted to punish him for not loving her or
for not wanting to be married to her and because he wanted custody of their daughter. Defense
counsel concluded his argument by stating that the complainant had a coached transcript and a
vindictive mother and grandmother who were trying to get rid of Petitioner. (Id. at 138, 142,
145-56, 149-53.)
The Court concludes that defense counsel’s attempts to establish the defense theory were
adequate. The jury had enough information from which to evaluate the defense theory that the
complainant and Mrs. Bodrie manufactured the allegations.
3. The Failure to Object to the Prosecutor’s Closing Argument
(Claims I.C. and III)
Petitioner contends that the prosecutor misrepresented the evidence during closing
arguments and that defense counsel was ineffective for failing to object to the arguments. The
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disputed argument concerned the 1995 incidents during which the complainant supposedly
touched Petitioner’s penis. The prosecutor said:
You also heard evidence about what happened back in 1995 between the
victim who at that time was seven, and the adult defendant.
And as you think about the evidence, all of the evidence, I ask you to do
that. Look at it in its totality . . . .
....
As you think about things, ask yourself, have you ever heard a more
ridiculous story than a seven year old attacking an adult, sexually attacking an
adult in the fashion that the evidence came in during this trial?
The defendant’s version of events. Yes, she came after me. It was that
little seven year old girl. You heard the circumstance, you heard her explain, you
heard what happened previously.
(Id. at 125-26.) The prosecutor also compared the complainant’s current allegations about
Petitioner to what happened in 1995, describing the two incidents as “strangely similar.” (Id. at
127.) He maintained that Petitioner “dodged the bullet” in 1995. (Id. at 137, 161.)
Petitioner contends that defense counsel should have objected to these comments because
the comments were an inaccurate description of his testimony and incorrectly suggested to the
jury that he intended to do something wrong in 1995 and was making an excuse for what
happened then. Petitioner also claims that there were no similarities between the 1995 and 2002
incidents and that he neither testified, nor implied, that he was sexually attacked in 1995.
“Interruptions of arguments, either by opposing counsel or the presiding judge, are
matters to be approached cautiously,” United States v. Young, 470 U.S. 1, 13 (1985), and
although defense counsel did not make a formal objection to the prosecutor’s argument, he did
respond to it. He said that the 1995 case against Petitioner was dismissed and that Petitioner did

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not dodge the bullet or “do something this time because he got away with it the last time,
because nothing happened that time or this time.” (Trial Tr. vol. II, Oct. 7, 2003, 146.)
Furthermore, although prosecutors may not misrepresent the evidence or assert facts
never admitted in evidence, Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000), they
“may argue reasonable inferences from the evidence” during closing arguments. Amos v.
Renico, 683 F.3d 720, 730 (6th Cir. 2012) (citing United States v. Crosgrove, 637 F.3d 646, 663
(6th Cir. 2011)), cert. denied, __ U.S. __, 133 S. Ct. 664 (2012). The disputed comments in this
case were based on evidence that Petitioner was charged with sexually abusing the complainant
in 1995 and that the case was dismissed simply because the complainant was emotionally
incapable of testifying. The two incidents were similar in that they involved the same victim, the
same kind of conduct, and a situation where the complainant’s mother was not home. The
prosecutor reasonably inferred from the evidence that Petitioner’s version of the 1995 incidents
was not believable and that Petitioner “dodged the bullet” in 1995. Therefore, trial counsel’s
failure to object to the prosecutor’s remarks did not amount to deficient performance.
Even if counsel’s performance was deficient, the trial court charged the jurors not to let
sympathy or prejudice influence their decision. The court also stated that the attorney’s
statements, questions, and arguments were not evidence and that the jurors should decide the
facts and base their verdict on the admissible evidence. (Trial Tr. vol. II, Oct. 8, 2003, 167,
169.) Jurors are presumed to follow their instructions, Richardson v. Marsh, 481 U.S. 200, 211
(1987); Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir. 2005) (citing Washington v. Hofbauer, 228
F.3d at 706), and the generalized instructions in this case served to eliminate any prejudice
caused by the prosecutor’s remarks. Furthermore, an objection likely would have resulted in a

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cautionary jury instruction similar to the one given during the trial court’s charge to the jury.
Therefore, defense counsel’s failure to object to the prosecutor’s remarks did not prejudice the
defense.
4. The Alleged Failure to Investigate and Locate a Defense Expert
(Claim I.D.)
Petitioner’s final argument about trial counsel alleges that counsel was ineffective for
failing to locate and produce an expert defense witness. Petitioner contends that trial counsel
primed the jury in his opening statement to believe that the complainant manufactured her
allegations, but he failed to offer any evidence as to why the complainant would manufacture her
allegations. According to Petitioner, an expert witness could have helped the jury to understand
how the complainant’s memory of certain sexual matters was confabulation to the current
situation and brought on by contact with her grandmother, who prodded her on the subject of
sexual touching. Petitioner contends that the jury needed to hear from an expert witness that the
complainant had a propensity to manufacture allegations and would lie about something serious.
There is no evidence in the record that the complainant confused the 2002 incidents with
her memory of other incidents involving sexual matters. Mrs. Bodrie, moreover, testified that,
although the complainant was a teenager and probably lied on occasion, she thought the
complainant generally was truthful about serious things. She did not think that the complainant
had been pressured to disclose something that may not have happened. (Trial Tr. vol. I, Oct. 7,
2003, 106-07).
Joyce Rahn also thought the complainant was truthful. She testified that she did not
coach the complainant, tell the complainant how to describe what happened, or try to make the
complainant say something that she would not normally say. (Id. at 206, 209, 220-22.)
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To counter this evidence, Petitioner testified that he thought the complainant was being
untruthful (Trial Tr. vol. II, Oct. 8, 2003, 80), and Barbara Hatfield insinuated that Joyce Rahn
had pressured the complainant into making the allegations against Petitioner (id. at 31-34). In
addition, defense counsel argued that the complainant’s testimony was scripted and unclear as to
the details of what happened.
There was enough evidence from which the jury could evaluate the witnesses’ credibility
and determine whether the complainant was telling the truth or falsifying her allegations.
Consequently, trial counsel was not ineffective for failing to locate and produce an expert
witness in an attempt to show that the complainant was falsifying her allegations. At most, an
expert witness could only have speculated about whether the complainant was being truthful.
5. Summary
For all the reasons given above, the Court finds that trial counsel performed adequately
and that any deficiencies in counsel’s performance did not prejudice the defense. Therefore,
Petitioner has no right to relief on the basis of his claims about trial counsel.
B. Appellate Counsel
(Claim IV)
Petitioner alleges next that his appellate attorneys were ineffective for failing to include
viable issues on appeal, such as trial counsel’s ineffectiveness. The trial court concluded in its
order denying Petitioner’s motion for post-conviction relief that appellate counsel’s decision to
raise only an issue about the 1995 similar acts evidence did not amount to ineffective assistance.
An appellate attorney’s failure “to raise an issue on appeal can amount to constitutionally
ineffective assistance.” Jalowiec v. Bradshaw, 657 F.3d 293, 321 (6th Cir. 2011) (citing
McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004)), cert. denied, __ U.S. __, 133 S. Ct.
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107 (2012). But to demonstrate that appellate counsel was ineffective, Petitioner must show (1)
that his attorneys were objectively unreasonable in failing to raise other issues on appeal and (2)
a reasonable probability that he would have prevailed on appeal were it not for his attorney’s
failure to raise the issues on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing
Strickland v. Washington, 466 U.S. at 687-91, 694); Thompson v. Warden, Belmont Corr. Inst.,
598 F.3d 281, 285 (6th Cir. 2010).
This Court determined above that trial counsel performed adequately and that any
deficiencies in counsel’s performance did not prejudice the defense. The Court’s inquiry,
therefore, “is at an end; by definition, appellate counsel cannot be ineffective for a failure to raise
an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001); see also
Shaneburger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (“Appellate counsel cannot be found to
be ineffective for ‘failure to raise an issue that lacks merit.’”) (quoting Greer v. Mitchell, 264
F.3d at 676).
C. The Trial Court’s Denial of Petitioner’s Motion for Relief from Judgment
(Claims II, VI, and VII)
The second, sixth, and seventh habeas claims pertain to the trial court’s decisions on
Petitioner’s post-conviction motions. The second claim alleges that the trial court erred by
denying Petitioner’s motion for relief from judgment on the ground that Petitioner failed to
allege “cause” for not raising his claims on direct appeal. Petitioner contends that his claims
were properly before the court and that he met the “cause and prejudice” standards for relief by
showing that his appellate attorneys were the reason for his failure to raise his claims on direct
appeal.
The sixth habeas claim alleges that the trial court erred by denying Petitioner’s motion
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for relief from judgment before receiving certain supplemental information, which the court
needed to make a decision on the motion. Petitioner contends that he placed the trial court on
notice that the supplemental information would be forthcoming, but the court decided his motion
without waiting for the supplemental materials and later denied reconsideration after the
supplemental materials were submitted.
Petitioner makes similar allegations in his seventh habeas claim. He also alleges that the
trial court abused its discretion by assigning one of his post-conviction motions to a visiting
judge who knew nothing about his case and who summarily denied his motion without providing
any reasons for the denial.
These claims (II, VI, and VII) are not a basis for habeas relief because Petitioner merely
disagrees with the trial court’s interpretation of the Michigan Court Rules. He is alleging
violations of state law, which are not cognizable claims on habeas corpus review. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Id. at 68 (citing 28 U.S.C. § 2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam)).
Petitioner does rely on one federal court decision: Massaro v. United States, 538 U.S.
500, 504 (2003) (holding “that an ineffective-assistance-of-counsel claim may be brought in a
collateral proceeding under [28 U.S.C.] § 2255, whether or not the petitioner could have raised
the claim on direct appeal”). But Massaro “is a rule of practice for federal judges in federal
criminal cases . . . .” Hayes v. Battaglia, 403 F.3d 935, 937 (7th Cir. 2005). It does not apply to
proceedings under § 2254. See id.; see also Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003)
(stating that “ Massaro is not a constitutional decision, and by its own language it did not extend

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its rule beyond § 2255”).
Furthermore, habeas relief may not be granted “for alleged deficiencies in a state’s
post-conviction procedures.” Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) (citing Kirby v.
Dutton, 794 F.2d 245, 247 (6th Cir. 1986)). Such claims are not cognizable on federal habeas
review. Id. Petitioner therefore has no right to relief on the basis of his second, sixth, and
seventh claims.
D. Evidentiary Hearing
(Claim V)
Petitioner alleges that the Court should conduct an evidentiary hearing on his ineffectiveassistance-of-counsel claims, because the state court declined to grant him a hearing on the
claims. Petitioner asserts that the state court record is insufficient to expose the deficiencies in
trial counsel’s strategy and performance.
Petitioner sought an evidentiary hearing in state court while his case was pending on
direct appeal. Because the Michigan Court of Appeals denied his motion to remand the case for
an evidentiary hearing, Petitioner is not at fault for failing to develop the facts in state court. The
state trial court, however, ultimately found no merit in Petitioner’s claims about trial and
appellate counsel. Therefore, federal habeas review “is limited to the record that was before the
state court,” Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1398 (2011), and this Court
may not grant an evidentiary hearing.
IV. CONCLUSION
The state court orders rejecting Petitioner’s claims were not contrary to Supreme Court
precedent, unreasonable applications of Supreme Court precedent, or unreasonable
determinations of the facts. And because the state court rulings were not “so lacking in
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justification” as to be “beyond any possibility for fairminded disagreement,” Harrington v.
Richter, 131 S. Ct. at 786-87, the amended petition for writ of habeas corpus is DENIED.
V. CERTIFICATE OF APPEALABILITY
Before Petitioner may appeal this decision, a certificate of appealability must issue. 28
U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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). “A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or 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). When, as in this case, “a district court has
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. . . .” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Reasonable jurists could debate the Court’s assessment of Petitioner’s constitutional
claims about trial and appellate counsel or at least conclude that the issues are adequate to
deserve encouragement to proceed further. Therefore, a certificate of appealability may issue on
claims I, III, and IV. The Court declines to grant a certificate of appealability on the remaining
claims, because those claims allege violations of state law or do not assert a stand-alone claim
for habeas relief. Petitioner nevertheless may proceed in forma pauperis on appeal if he chooses
to appeal this decision, because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: February 25, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
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counsel of record on February 25, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager

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