Taylor v. Lafler

Filing 14

OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus, DECLINING TO ISSUE CERTIFICATE OF APPPEALABILITY & DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES EDWARD TAYLOR,
Petitioner,
Case No. 09-10556
v.
Honorable Patrick J. Duggan
BLAINE LAFLER,
Respondent.
_____________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Charles Edward Taylor, (“Petitioner”), a state prisoner currently incarcerated at the
Chippewa Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his Wayne
County Circuit court convictions for nine counts of first-degree criminal sexual conduct,
Michigan Compiled Laws § 750.520b(1)(a), two counts of second-degree criminal sexual
conduct, Michigan Compiled Laws § 750.520c(1)(a), and two counts of third-degree
criminal sexual conduct, Michigan Compiled Laws § 750.520d(1)(a). For the reasons
stated below, the application for writ of habeas corpus is denied.
I. Factual and Procedural Background
The Court recites verbatim the facts relied upon by the Michigan Court of Appeals,
which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1):
1

Defendant, age thirty-two at the time of his 2004 trial, was convicted
of sexually abusing FT, age seventeen at the time of trial, TT, age fifteen at
the time of trial, and TH, age twelve at the time of trial. FT is defendant’s
former girlfriend’s cousin, TH is defendant’s former girlfriend’s daughter,
and TT is defendant’s niece. The charged incidents occurred between 1999
and 2003.
Sandra Alexander, FT’s mother, testified that, at some unspecified
time, defendant moved into her home with his girlfriend, Natasha Hart, and
Hart’s daughter, TH.1 At the time, FT and several other family members
also lived in the home. According to FT, defendant had sexual intercourse
with her twice. In December 2000, when FT was thirteen years old, she
was awakened at approximately 3:00 a.m. by defendant’s hands in her
underwear. Defendant then climbed on top of her, put his hand over her
mouth, put his penis in her vagina, and ejaculated inside her. Afterward,
defendant told her that she “better not tell nobody.” During the second
incident, which occurred in January 2001, FT was sleeping on the floor
when defendant kicked her and directed her to remove her pajama pants.
When FT refused, defendant removed her clothing, had sexual intercourse
with her, and ejaculated inside her. FT was subsequently treated for a
venereal disease (“VD”). FT testified that she had a child in October 2001,
and that defendant was the only person with whom she ever had sexual
intercourse. In a statement made to the police, defendant admitted that he
fathered FT’s child. Deoxyribonucleic acid (DNA) testing confirmed that
defendant is the biological father of FT’s child.
Hart testified that, at some point, she, defendant, and TH moved
from FT’s mother’s residence. TH, who referred to defendant as “dad,”
testified that after moving from FT’s house, defendant sexually abused her
on numerous occasions. According to TH, when she was eleven years old,
defendant had sexual intercourse with her. TH indicated that on other
occasions defendant penetrated her digitally, touched and sucked her
breasts, and made her suck his nipple. She indicated that defendant would
“get mad at [her]” when she told him to stop and threatened to hurt her or
her mother if she told anyone. Eventually, defendant left the house after
having a physical altercation with Hart.

1

Aside from Hart’s daughter, TH, who is from a previous relationship, Hart has three
children with defendant.
2

Defendant subsequently moved into his mother’s house. At the time,
TT, who is the daughter of defendant’s deceased brother, also lived in the
home. TT testified that, when she was about twelve years old, defendant
woke her during the night, touched her all over, climbed on top of her, and
penetrated her vagina with his penis. Afterward, defendant threatened to
kill her if she told anyone. TT indicated that defendant penetrated her
vagina with his penis four additional times, and penetrated her anus with his
penis once. In late 2003, TT visited an aunt in Indiana, where she was
diagnosed with a venereal disease. When she returned to her grandmother’s
house approximately eight months later, defendant had moved out;
however, TT testified that defendant would occasionally spend the night
and sexually abused her when he did. TT contracted a second venereal
disease. TT testified that defendant was the only person with whom she had
sexual relations.
People v. Taylor, No. 254888, 2005 Mich. App. LEXIS 1190, *2-5 (Mich. Ct. App. May
12, 2005) (per curiam).
Based on this evidence, a jury found Petitioner guilty of nine counts of first-degree
criminal sexual conduct, two counts of second-degree criminal sexual conduct, and two
counts of third-degree criminal sexual conduct. He was sentenced to concurrent thirty-tosixty year terms for the first-degree convictions and concurrent ten-to-fifteen year terms
for the second and third-degree convictions.
Petitioner pursued an appeal of right in the Michigan Court of Appeals. His
appellate brief raised three claims:
I. The trial court’s joinder for trial of the three separate cases was an abuse
of discretion which denied Mr. Taylor of a fair trial.
II. Mr. Taylor was denied his state and federal constitutional rights to due
process of law and a fair trial through misconduct of the prosecutor, which
consisted of mischaracterization of the evidence, improper character
argument, appeal to the emotions of the jurors, and unsupported
speculation.
3

III. The trial court denied Mr. Taylor a fair trial by giving a confusing,
incomplete, and erroneous reasonable doubt instruction.
The Michigan Court of Appeals affirmed in an unpublished opinion. Petitioner then filed
an application for leave to appeal in the Michigan Supreme Court, raising the same three
issues and an additional claim that Petitioner was actually innocent of the charges relating
to TT. The Michigan Supreme Court denied leave to appeal. People v. Taylor, 474
Mich. 909, 705 N.W.2d 132 (Mich. 2005) (table).
Petitioner returned to the trial court and filed a motion for relief from judgment.
The motion raised four issues:
I. The trial court unconstitutionally applied Michigan’s rape shield law in
refusing to allow the defense to present evidence that the complainant had
made previous allegations of sexual assault against two different persons in
order to show the source or origin of disease.
II. The prosecutor violated defendant’s state and federal due process rights
by engaging in misconduct during closing arguments by denigrating Mr.
Taylor and directly appealing for juror sympathy. If trial counsel waived
the error by failing to object, they deprived defendant of effective
assistance.
III. Defense counsel failed to file a pre-trial motion for an in camera
hearing, failed to present expert testimony which would have aided the jury,
failed to investigate or present defense witnesses, and failed to strike a juror
for cause; defense counsel entirely failed to subject the prosecution’s case
to meaningful adversarial testing.
IV. Defendant Taylor was denied his constitutional right to a fair trial due
to the cumulative effect of the prejudicial errors which occurred before, and
during, his trial.
The trial court denied the motion, finding that because two of these claims had been
raised during Petitioner’s appeal of right, they were barred by Michigan Court Rule
4

6.508(D)(2). The court found that Petitioner’s remaining claims were barred by Rule
6.508(D)(3), which required him to demonstrate good cause for failure to raise his claims
on appeal and actual prejudice resulting from the alleged errors.
Petitioner appealed this decision to the Michigan Court of Appeals, asserting that
the trial court erred in failing to reach the merits of his claims. The application for leave
to appeal was denied “for failure to demonstrate entitlement to relief under Rule
6.508(D).” People v. Taylor, No. 286184, 2008 Mich. App. LEXIS 2656 (Mich. Ct. App.
Nov. 14, 2008). Petitioner appealed to the Michigan Supreme Court, but his application
for leave to appeal was denied with citation to the same court rule. People v. Taylor, 484
Mich. 866, 769 N.W.2d 657 (Mich. 2009) (table).
Petitioner attempted to file a second motion for relief from judgment in the trial
court on or about March 24, 2008, while his appeal from his first motion was still pending
in the Michigan Court of Appeals. This second motion asserted that Petitioner’s trial
counsel was ineffective for failing to discover medical records that showed that Petitioner
was not treated at a hospital for the same venereal disease acquired by two of the
complainants. The trial court denied the motion under Michigan Court Rule 6.502(G)(1),
which generally prevents a defendant from filing a second motion for relief from
judgment. Petitioner did not attempt to appeal this decision to the state appellate courts.
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. The trial court’s joinder for trial of the three separate cases was an abuse
of discretion which denied Mr. Taylor of a fair trial.

5

II. Mr. Taylor was denied his state and federal constitutional rights to due
process of law and a fair trial through misconduct of the prosecutor, which
consisted of mischaracterization of the evidence, improper character
argument, appeal to the emotions of the jurors, and unsupported
speculation.
III. The trial court denied Mr. Taylor a fair trial by giving a confusing,
incomplete, and erroneous reasonable doubt instruction.
IV. The trial court unconstitutionally applied Michigan’s rape shield law in
refusing to allow the defense to present evidence that the complainant had
made previous allegations of sexual assault against two different persons in
order to show the source or origin of disease.
V. The prosecutor violated defendant’s state and federal due process rights
by engaging in misconduct during closing arguments by denigrating Mr.
Taylor and directly appealing for juror sympathy. If trial counsel waived the
error by failing to object, they deprived defendant of effective assistance.
VI. Defense counsel failed to file a pre-trial motion for an in camera
hearing, failed to present expert testimony which would have aided the jury,
failed to investigate or present defense witnesses, and failed to strike a juror
for cause; defense counsel entirely failed to subject the prosecution’s case
to meaningful adversarial testing.
VII. Defendant was denied his constitutional right to a fair trial due to the
cumulative effect of the prejudicial errors which occurred before, and
during, his trial.
VIII. Defendant was denied his Sixth Amendment right to effective
assistance of counsel applicable to the state of Michigan under the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution when counsel failed to secure the medical records to disprove
the introduction of the prosecutor’s evidence consisting of a hospital bill to
contend the defendant was treated for a sexually transmitted disease which
tied defendant to the victims.
II. Standard of Review
To obtain habeas corpus relief, a state prisoner must show that the state court

6

decision rejecting his habeas claims “was either contrary to, or an unreasonable
application of, [the Supreme] Court’s clearly established precedents, or was based upon
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); see Price v. Vincent,
538 U.S. 634, 639, 123 S. Ct. 1848, 1852 (2003).
“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.” Williams v. Taylor, 529 U.S. 362, 41213, 120 S. Ct. 1495, 1523 (2000). “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.” Id. at 413, 120 S. Ct. at 1523. A court may not issue the
writ “simply because the court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.”
Id. at 411, 120 S. Ct. at 1522.
III. Discussion
A. Joinder of Cases for Trial
Petitioner first claims that the joinder of the three complainants’ cases for a single
trial was fundamentally unfair, in violation of his due process rights. Respondent argues
that Petitioner raised this claim only on state-law grounds during his appeal of right, and
that the federal aspect of the claim is therefore procedurally barred. The Court need not
7

address the issue of procedural default because the claim is plainly without merit. See
Lambrix v. Singletary, 520 U.S. 518, 525, 117 S. Ct. 1517, 1523 (1997) (procedural
default is ordinarily addressed first, but resolution on the merits is permitted where the
issue is easily resolved).
“Improper joinder does not, by itself, violate the constitution. Rather, misjoinder
would rise to the level of a constitutional violation only if it results in prejudice so great
as to deny a defendant his . . . right to a fair trial.” United States v. Lane, 474 U.S. 438,
446, n.8, 106 S. Ct. 725, 730 n.8 (1986). The issue “is not whether the failure to sever
counts for separate trials was a violation of a state rule of procedure, but whether the
failure to sever denied the petitioner due process of law under the Fourteenth
Amendment.” Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007). To establish prejudice
from joinder, a defendant must point to specific evidence that the joinder was prejudicial.
United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005). “[A]n unproven assertion is
not compelling evidence of actual prejudice.” Id. at 679. “[A] jury is presumed capable
of considering each criminal count separately, and any prejudice may be cured by limiting
instructions.” United States v. Cope, 312 F.3d 757, 781 (6th Cir. 2002) (internal citations
omitted).
It was not fundamentally unfair to join the three criminal cases against Petitioner
in a single trial. As the Michigan Court of Appeals noted, if the cases were tried
separately, the evidence concerning each victim would have been admissible at each trial
under Michigan Rule of Evidence 404(b) as evidence of a common plan or scheme.
8

Taylor, 2005 Mich. App. LEXIS 1190, at *8. The mutually corroborating testimony by
the complainants, which Petitioner claims was an unfair result of the joinder, would have
occurred at separate trials as well. Petitioner was not prejudiced by having a single jury
hear all the sex charges against him, as the full breadth of the charges would have been
heard by each jury even if the cases had been tried separately. See United States v.
Jacobs, 244 F.3d 503, 507 (6th Cir. 2001); Krist v. Foltz, 804 F.2d 944, 947-48 (6th Cir.
1986). Nor can this Court question the state appellate court’s determination that the
evidence of each sexual assault would have been admissible in separate trials. See Bugh
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (holding that errors in admission of
evidence under state law are usually not cognizable in a § 2254 proceeding). Petitioner’s
first claim is therefore without merit.
B. Prosecutorial Misconduct
Petitioner asserts in his second claim that the prosecutor committed various acts of
misconduct that rendered his trial unfair. He asserts that the prosecutor: (1) argued facts
that were not in evidence; (2) vouched for the credibility of her witnesses; (3) denigrated
Petitioner; and (4) urged the jury to speculate that Petitioner had venereal disease.
Respondent asserts that the claim is barred by Petitioner’s failure to object to the alleged
misconduct at trial, but that issue need not be addressed because the claim lacks merit.
Petitioner’s fifth claim repeats some of these allegations, and further asserts that the
prosecutor appealed to the jury’s sympathies for the victim during closing argument.
Prosecutors must “refrain from improper methods calculated to produce a
9

wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633
(1935). “When a petitioner makes a claim of prosecutorial misconduct, ‘the touchstone of
due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.’”
Serra v. Mich. Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993) (quoting Smith v.
Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 947 (1982)) (omission in original). On
habeas review, the court must determine “whether the conduct was ‘so egregious as to
render the entire trial fundamentally unfair.’” Id. (quoting Cook v. Bordenkircher, 602
F.2d 117, 119 (6th Cir. 1979)). The court must initially decide whether the challenged
statements were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). If the
statements were improper, the district court must then examine whether the statements or
remarks were so flagrant as to constitute a denial of due process and warrant granting a
writ. Id. Consideration should be given to the degree to which the challenged remarks
had a tendency to mislead the jury and to prejudice the accused; whether they were
isolated or extensive; whether they were deliberately or accidentally placed before the
jury; and, except in the sentencing phase of a capital murder case, the strength of the
competent proof against the accused. Serra, 4 F.3d at 1355-56.
In addition, because this case is a habeas case and not a direct appeal, the inquiry
into an issue of prosecutorial misconduct is less stringent. See Spalla v. Foltz, 615 F.
Supp. 224, 227 (E.D. Mich. 1985). “[T]he Supreme Court has clearly indicated that the
state courts have substantial breathing room when considering prosecutorial misconduct
claims because ‘constitutional line drawing [in prosecutorial misconduct cases] is
10

necessarily imprecise.’” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872 (1974)) (alteration in
original). In deciding whether prosecutorial misconduct mandates that habeas relief be
granted, a federal court must apply the harmless error standard. Pritchett v. Pitcher, 117
F.3d 959, 964 (6th Cir. 1997).
The Michigan Court of Appeals rejected Petitioner’s prosecutorial misconduct
claim as follows:
Next, defendant contends that he was denied a fair trial by numerous
instances of prosecutorial misconduct. We disagree.
Because defendant failed to object to the prosecutor’s conduct
below, this Court reviews his unpreserved claims for plain error affecting
substantial rights. People v. Carines, 460 Mich. 750, 752-753, 763-764;
597 N.W.2d 130 (1999). We will not find error requiring reversal if the
prejudicial effect of the prosecutor’s comments could have been cured by a
timely instruction. People v. Watson, 245 Mich. App. 572, 586; 629
N.W.2d 411 (2001).
A. Facts Not in Evidence
Defendant contends that the prosecutor argued facts not in evidence
by stating that TT’s aunt learned of the sexual abuse while TT was in
Indiana, and that there was “no evidence” that TH’s mother and defendant
“had any problem getting along.” The prosecutor concedes that there was
essentially no evidence presented to support these statements.2
Although the prosecutor improperly argued facts that were not
supported by the evidence, People v. Stanaway, 446 Mich. 643, 686; 521
N.W.2d 557 (1994), defendant has not demonstrated that his substantial

2

But in fact, there was evidence that TH’s mother and defendant had a physical
altercation in 2003. In addition, TT’s aunt testified that, while in Indiana, TT was
diagnosed with a venereal disease but, upon questioning, TT “was very evasive.”
11

rights were affected. Carines, supra. The remarks involved only a brief
portion of the prosecutor’s closing and rebuttal arguments, were of
comparatively minor importance considering the totality of the evidence
against defendant, and were not so inflammatory that defendant was
prejudiced. Moreover, the trial court instructed the jurors what constituted
evidence, and that the case should be decided on the basis of the evidence.
The instructions were sufficient to dispel any possible prejudice. People v.
Long, 246 Mich. App. 582, 588; 633 N.W.2d 843 (2001). Juries are
presumed to follow their instructions. People v. Graves, 458 Mich. 476,
486; 581 N.W.2d 229 (1998). Consequently, reversal is not warranted on
the basis of this unpreserved issue.
Defendant also contends that the prosecutor argued facts not in
evidence when she “held up” and referred to a “Kids’ Talk” interview tape
that was not admitted into evidence. Although the actual videotape was not
admitted at trial, its existence was part of the evidence and references to the
videotape were made throughout trial. TH, her mother, and a Sex Crimes
Unit police officer testified that because of her young age, TH was
interviewed by Kids’ Talk, and the interview was videotaped. The officer
testified that the videotape that the prosecutor “held up” was the actual
Kids’ Talk videotape containing TH’s interview. This claim is without
merit.
B. Vouching
We also reject defendant’s claim that the prosecutor impermissibly
vouched for TH by referring to the Kids’ Talk interview tape. A prosecutor
may not vouch for the credibility of a witness by conveying that she has
some special knowledge that the witness is testifying truthfully. People v.
Knapp, 244 Mich. App. 361, 382; 624 N.W.2d 227 (2001). But viewed in
context, the prosecutor did not convey to the jury that she had special
knowledge that TH was testifying truthfully. Rather, when referring to the
videotape, the prosecutor was in the midst of urging the jurors to evaluate
the evidence and to consider that the victims were consistent about the basic
details of the incidents during the numerous times and places they told their
stories. A prosecutor is free to argue the evidence and all reasonable
inferences arising from it as they relate to her theory of the case. People v.
Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995). The prosecutor’s
remarks were not improper.
C. Denigration of Defendant
12

We also reject defendant’s claim that the prosecutor impermissibly
denigrated his character during closing argument when she stated that
defendant “has a sexual interest in children.” Although a prosecutor “must
refrain from denigrating a defendant with intemperate and prejudicial
remarks,” id. at 283, the challenged remark here simply conveyed the
prosecutor’s contention that the evidence demonstrated defendant “has a
sexual interest in children.” In view of the evidence, her argument was
reasonable. A prosecutor is not required to phrase arguments and
inferences in the blandest possible terms. People v. Ullah, 216 Mich. App.
669, 678; 550 N.W.2d 568 (1996). Thus, the prosecutor’s remark was not
improper.
D. Improper Argument
Defendant also makes a general claim that during rebuttal argument,
the prosecutor made several remarks that improperly urged the jury to
“speculate” that he had a venereal disease. But viewed in context, the
challenged argument was plainly focused on refuting both defense
attorneys’ assertions made during closing arguments that there was no
evidence that defendant had a venereal disease. The defense attorneys
argued that defendant’s girlfriend did not testify that he infected her with a
venereal disease, that the police failed to administer a blood test to
determine if defendant had a venereal disease, and that defendant’s
penicillin prescription could have been prescribed to treat diseases other
than a venereal disease.
In response, the prosecutor argued that during their closing
arguments, the defense attorneys assumed that a venereal disease could be
detected with a blood test and that it would be virtually impossible to
determine if or when defendant sought treatment and to obtain any
corresponding medical records. She further argued that defendant’s
girlfriend was never asked whether defendant infected her with a venereal
disease, but that “maybe” she did contract a venereal disease from
defendant. Given the defense attorneys’ remarks, the prosecutor’s brief
responsive remarks were not improper. Otherwise improper prosecutorial
remarks might not require reversal if they address issues raised by defense
counsel. People v. Duncan, 402 Mich. 1, 16; 260 N.W.2d 58 (1977).
Consequently, this claim does not warrant reversal.
Taylor, 2005 Mich. App. LEXIS 1190, at *9-15.

13

This decision did not involve an unreasonable application of established Supreme
Court standards. Petitioner first asserts that the prosecutor made statements during
closing argument that were not supported by the evidence. The prosecutor stated that
there was no evidence that the mother of one of the complainants did not get along with
Petitioner, referred to a video tape that was not admitted into evidence, and said that
another complainant’s aunt learned about the abuse when the complainant was in another
state. The Court agrees with the Michigan Court of Appeals that these arguments were
not supported by any evidence presented at trial. However, in light of the substantial
evidence against Petitioner detailed above, the prosecutor’s brief references to these
unsupported allegations did not have a substantial and injurious effect or influence in
determining the jury’s verdict. They were relatively minor parts of a much larger
argument that properly focused the jury’s attention on the evidence presented at trial.
Therefore, petitioner is not entitled to habeas relief on this ground.
Petitioner next asserts that the prosecutor vouched for the credibility of the
complainant TH. A prosecutor may not express a personal opinion concerning the guilt
of a defendant or the credibility of trial witnesses, because such personal assurances of
guilt or vouching for the veracity of witnesses by the prosecutor “exceeds the legitimate
advocates’ role by improperly inviting the jurors to convict the defendant on a basis other
than a neutral independent assessment of the record proof.” Caldwell v. Russell, 181 F.3d
731, 737 (6th Cir. 1999). However, a prosecutor is free to argue that the jury should
arrive at a particular conclusion based upon the record evidence. Id. “[G]enerally,
14

improper vouching involves either blunt comments, or comments that imply that the
prosecutor has special knowledge of facts not in front of the jury or of the credibility and
truthfulness of witnesses and their testimony.” United States v. Francis, 170 F.3d 546,
550 (6th Cir. 1999) (internal citations omitted). The prosecutor did not suggest that she
had any secret knowledge that the complainant was testifying truthfully. Rather, she
asked the jury to consider the consistency of TH’s claims that Petitioner had sexually
assaulted her as a reason for believing her testimony. There was no improper vouching.
Petitioner next asserts that the prosecutor denigrated him by stating that he has a
sexual interest in children. It is inappropriate for a prosecutor to make personal attacks on
a defendant or defense counsel, United States v. Collins, 78 F.3d 1021, 1040 (6th Cir.
1996), but the prosecutor did not make a personal attack upon Petitioner. The evidence at
trial showed that he sexually molested three different girls. The comment was supported
by the evidence and was not designed to divert the jury’s attention from the evidence.
Nor did it urge conviction of Petitioner based on an improper consideration.
Petitioner also asserts that the prosecutor improperly suggested that he had
venereal disease. The comment was proper. Two of the complainants testified that they
contracted venereal disease after Petitioner had molested them and that they had no other
sexual partners. The argument was therefore based on a fair inference made from this
testimony, whether or not the prosecutor failed to provide direct evidence that Petitioner
had such a disease.
Finally, Petitioner asserts that the prosecutor appealed to the sympathies of the jury
15

by saying that she was “sickened” by Petitioner’s conduct and that he was “twisted.”
While the prosecutor’s comments may have approached the line, they did not cross it.
The thrust of the prosecutor’s argument urged the jury to convict Petitioner based on the
evidence presented. While she did not always use the blandest of terms in doing so, the
prosecutor’s argument was not so inflammatory so as to render Petitioner’s trial unfair.
The Court concludes that Petitioner’s claims of prosecutorial misconduct lack merit.
C. Reasonable Doubt Jury Instruction
Petitioner’s third claim asserts that the jury instruction erroneously lowered the
prosecutor’s burden of proof. The Michigan Court of Appeals found that the claim was
waived because Petitioner’s defense attorneys specifically stated that they were satisfied
with the jury instructions. Even if this claim were not waived, it must be rejected because
it is without merit.
“The government must prove beyond a reasonable doubt every element of a
charged offense.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1242 (1994) (citing
In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970)). “[S]o long as the court instructs the
jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the
Constitution does not require that any particular form of words be used in advising the
jury of the government’s burden of proof.” Id. at 5, 114 S. Ct. at 1243 (internal citation
omitted). “Rather, ‘taken as a whole, the instructions [must] correctly convey the concept
of reasonable doubt to the jury.’” Id. at 5, 114 S. Ct. at 1243 (quoting Holland v. United
States, 348 U.S. 121, 140, 75 S. Ct. 127, 138 (1954)) (alteration in original).
16

The trial court instructed the jury on the prosecutor’s burden of proof as follows:
The burden of proof in a criminal case is on the People. They have
to prove that there was a crime committed; and in this case 13; and that the
crimes were committed by Mr. Taylor. On the other hand, there is no
burden on the Defense to do anything in a criminal case except show up in
court. They don’t have to present any testimony, or do anything,
whatsoever, other than come into court and pay attention. And the burden
never shifts. It is always with the People.
Now, a person that’s charged with an offense, as I told you, the
minute they are charged they are presumed innocent. A charge is nothing
but an accusation; that is not evidence. A person is presumed innocent.
Presumption of innocence starts at the beginning of a trial, and goes through
while you’re deliberating. Presumption of innocence, however, is a rebuttal
[sic] presumption. That means it will stand unless it’s rebutted by evidence
of the contrary. Evidence to convince you, beyond a reasonable doubt, that
Mr. Taylor is not innocent, but that he is in fact guilty. Presumption of
innocence could result in an acquittal by itself. However, if there is
evidence presented to you to convince you beyond a reasonable doubt that
he is not innocent, then the presumption of innocence is rebutted. But that
is what is meant by presumption of innocence.
Now, the standard of proof, as I told you, is proof beyond a
reasonable doubt. We’re not dealing with a mere preponderance of the
evidence; we are dealing with proof beyond a reasonable doubt. A
reasonable doubt simply means a doubt for which you can assign a reason
for having. It’s reasonable, like you use the term reasonable at anytime.
It’s a fair, honest and reasonable doubt. The kind of a doubt that would
make you hesitate before making an important decision.
Now, the People are not required to prove this case or any case
beyond all doubt, because nothing can be proven beyond all doubt, unless
you saw it yourself. A doubt has to be a reasonable doubt. A reasonable
doubt is a fair and honest and reasonable doubt.
If you can say that you have an abiding conviction to a moral
certainty, it is your duty to bring back a verdict of guilty. If you do not
have an abiding conviction to a moral certainty, of course it is your duty to
bring back a verdict of not guilty. A reasonable doubt is not a flimsy, or
vain, fictitious, or imaginary doubt. It is not a hunch, or a feeling, or a
17

possibility of innocence. It’s a fair and reasonable doubt.
Trial Tr. vol. 3, 53-55, Mar. 15, 2004.
Petitioner has failed to show that the reasonable doubt instruction was improper or
otherwise deprived him of a fundamentally fair trial. There was no error in the court’s
definition of a reasonable doubt as a doubt to which you could assign a reason. The
instruction did not misstate the definition of “reasonable doubt” or shift the burden of
proof to the defense. In fact, the trial court specifically stated that Petitioner carried no
burden at all, and that the prosecutor’s burden never shifts.
Similarly, the trial court’s use of the “moral certainty” language in the reasonable
doubt instruction did not violate due process. While the United States Supreme Court in
Cage v. Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 329-30 (1990), invalidated a jury
instruction that defined reasonable doubt in terms of “grave uncertainty” and “actual
substantial doubt” and required conviction based upon “moral certainty,” the Court later
limited that holding in Victor. In Victor, the Court ruled that the mere use of the term
“moral certainty” in a jury instruction defining reasonable doubt by itself does not violate
due process, because it merely impresses upon the jury the need to reach a subjective state
of near certainty of guilt. Victor, 511 U.S. at 14-16, 114 S. Ct. at 1247-48. The Court
further found that use of the term “moral certainty” in the challenged instruction did not
violate due process because the instruction provided that the jurors had to have an abiding
conviction as to the defendant’s guilt, equated moral certainty with doubt that would
cause a reasonable person to hesitate to act, and told the jurors to consider the evidence
18

without indulging in speculation, conjectures, or unsupported inferences. Id. at 21-22,
114 S. Ct. at 1250-51. The Court distinguished the instruction in Cage, which failed to
provide any explanation or meaning for the phrase “moral certainty.” Id. at 21, 114 S. Ct.
at 1250.
The Sixth Circuit has since held that the use of the term “moral certainty” does not
automatically render a jury instruction on reasonable doubt fundamentally unfair. In
Austin v. Bell, 126 F.3d 843 (6th Cir.1997), the Sixth Circuit ruled that a reasonable doubt
instruction including the phrase “moral certainty” did not impermissibly lower the burden
of proof because the instruction also provided that reasonable doubt was “an inability to
let the mind rest easily” after considering the evidence. Id. at 847. The court concluded
that the “moral certainty” language, considered in light of the entire instruction, did not
create a reasonable likelihood that the jury impermissibly applied the jury instruction. Id.
This case is consistent with Victor and Austin. The trial court’s reasonable doubt
instruction conveyed the proper degree of certainty for conviction to the jury, referring to
an “abiding conviction” of guilt and equating moral certainty with a fair, honest, and
reasonable doubt. The trial court also explained that Petitioner was presumed innocent
and that the burden of proof was on the prosecutor. Given such circumstances, Petitioner
cannot establish that the reasonable doubt jury instruction impermissibly lowered the
burden of proof or otherwise rendered his trial fundamentally unfair. Habeas relief is not
warranted on this claim.
D. Rape Shield Law
19

Petitioner’s fourth claim asserts that the trial court improperly used the rape shield
law to prevent him from cross-examining one of the complainants about an allegation that
she had been molested by her grandfather and uncle. Petitioner asserted at trial that this
alleged sexual contact was relevant to show an alternate source for the complainant’s
venereal disease. The trial court prohibited this line of questioning because Petitioner had
not provided adequate notice under the rape shield law and because there was no proffer
of evidence that the prior assaults actually occurred. This claim was presented to the state
courts in Petitioner’s motion for relief from judgment and the appeal that followed.
Respondent asserts that the claims are barred under Michigan Court Rule 6.508(D)(3), but
the Court addresses them here because they plainly lack merit.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to be confronted with the witnesses against him. This includes the
right to conduct reasonable cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94
S. Ct. 1105, 1110 (1974). “Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested.” Id. at 316, 94 S. Ct. at
1110. The right of cross-examination, however, is not without restriction. Trial judges
“retain wide latitude” to limit cross-examination “based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 1435 (1986).
“Like most States, Michigan has a ‘rape-shield’ statute designed to protect victims
20

of rape from being exposed at trial to harassing or irrelevant questions concerning their
past sexual behavior.” Michigan v. Lucas, 500 U.S. 145, 146, 111 S. Ct. 1743, 1745
(1991) (citing Michigan Compiled Laws § 750.520j). Michigan’s statute provides:
Evidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the
victim’s sexual conduct shall not be admitted under sections 520b to 520g
[the sexual conduct offense provisions] unless and only to the extent that
the judge finds that the following proposed evidence is material to a fact at
issue in the case and that its inflammatory or prejudicial nature does not
outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor;
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
Michigan Compiled Laws § 750.520j(1). The statute further provides that if a defendant
seeks to introduce such evidence, he must give notice of his intent to do so within ten
days of the arraignment. See id. § 750.520j(2).
The exclusion of evidence for failure to comply with a notice provision does not
violate the Confrontation Clause where the notice requirement supports legitimate state
interests and is not arbitrary or disproportionate to those interests. Lucas, 500 U.S. at
149-51, 111 S. Ct. at 1746-47. The Supreme Court has recognized that the state interests
addressed by the rape shield law are substantial, including the prevention of surprise and
harassment. Id. at 149-50, 111 S. Ct. at 1746-47. Exclusion of relevant evidence may be
justified where the state’s interests in exclusion outweigh the defendant’s interests in
having the evidence admitted. Id. at 153, 111 S. Ct. at 1748.

21

The trial court did not categorically exclude evidence of the complainant’s alleged
sexual encounter with her grandfather and uncle. Rather, the trial court sustained the
prosecutor’s objection to the question posed by defense counsel to the complainant.
Defense counsel did not proffer any evidence that the complainant had actually been
molested by other family members, and the trial court found that Petitioner had not
complied with the notice provisions set forth in Michigan Compiled Laws 750.520j. As
the prosecutor stated, if such notice had been given, a pretrial hearing could have been
held to determine whether there was any basis to conclude that prior sexual encounters
had indeed occurred. Given Petitioner’s failure to proffer any evidence to the trial court
that TT had in fact been previously molested and the substantial interests underlying the
rape shield law, it did not violate Petitioner’s Sixth Amendment rights to prohibit crossexamination concerning the alleged molestation. Petitioner is not entitled to habeas relief
based on this claim.
E. Ineffective Assistance of Counsel
Petitioner’s sixth and eighth claims assert that he was denied the effective
assistance of counsel at trial. Petitioner alleges that his two defense attorneys: (1) failed
to file a pretrial motion for an in camera hearing regarding TT’s alleged prior sexual
contact; (2) failed to present expert witnesses regarding the transmission of venereal
disease and paternity testing; (3) failed to call witnesses in his defense; (4) failed to move
to strike a juror for cause; (5) failed to subject the prosecution’s case to meaningful
adversarial testing; and (6) failed to present evidence that Petitioner was treated at a
22

hospital for a throat infection and not venereal disease as suggested by the prosecutor.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, Petitioner must satisfy a two-prong test. First, he must show that
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, 104 S. Ct. 2052, 2064 (1984). To make this showing, Petitioner must overcome a
strong presumption that his counsel was effective. Id. at 689, 104 S. Ct. at 2065. “[A]
court must indulge a strong presumption that counsel’s conduct falls within the range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689, 104 S. Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101,
76 S. Ct. 158, 164 (1955)). Second, Petitioner must show that his counsel’s deficient
performance prejudiced his defense. Id. at 692, 104 S. Ct. at 2067. He must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.
Petitioner’s claims are too speculative to provide a basis for granting habeas relief.
Petitioner provides copies of records showing that he was treated in a hospital emergency
room for pharyngitis in September of 2003, but he provides no affidavits or other
documentation to support any of his other claims of ineffective assistance. “Conclusory
allegations, without evidentiary support, do not provide a basis for habeas relief.” Prince
v. Straub, 78 F. App’x 440, 442 (6th Cir. 2003). “Generally, a petition for habeas corpus
23

relief based on counsel’s failure to call witnesses must present this evidence in the form
of the actual testimony by the witness or affidavit.” United States ex rel. Townsend v.
Young, 2001 U.S. Dist. LEXIS 11677, at *18 (N.D. Ill. Aug. 8, 2001) (citing United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)). To the extent Petitioner argues that
he is entitled to an evidentiary hearing to develop his claims, the Sixth Circuit has stated
that “‘bald assertions and conclusory allegations do not provide sufficient ground to
warrant . . . an evidentiary hearing.’” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.
2001) (quoting Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991)). With respect
to the medical records Petitioner does provide, they hardly prove that he did not transmit
a venereal disease to two of the complainants. The records do not show that he did not
have such a disease; they merely show that he was treated for a throat condition. And
contrary to Petitioner’s assertion, the prosecutor did not argue in closing that medical
records indicate that Petitioner was treated for venereal disease. In the passages cited by
Petitioner, the prosecutor spoke about the complainant’s medical records, rather than
Petitioner’s.
Moreover, Petitioner’s claims do not account for the devastating evidence that he
fathered the child of one of the complainants when she was under sixteen years old and
living in his household. Petitioner alleges that his counsel should have hired an expert
witness to challenge the evidence of paternity, but he offers no reason to believe the
testing was inaccurate. The paternity evidence together with the other testimony of the
prosecutor’s witnesses overwhelmingly proved the first-degree criminal conduct
24

convictions relating to this complainant, and it resulted in some of his controlling thirtyto-sixty year sentences. A review of the record reveals that despite this overwhelming
evidence of his guilt, Petitioner’s two trial attorneys provided him with professionally
competent representation. Accordingly, Petitioner’s ineffective assistance of counsel
claims do not provide a basis for granting habeas relief.
F. Cumulative Error
Petitioner contends that the cumulative effect of certain errors entitles him to a
new trial. This claim lacks merit because constitutional errors that would not individually
support habeas relief cannot be cumulated to support habeas relief. Moore v. Parker, 425
F.3d 250, 256 (6th Cir. 2005).
IV. Conclusion and Order
For the reasons stated above, the Court denies the petition for writ of habeas
corpus. “The district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases. A
certificate of appealability may be issued “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, 123 S. Ct. 1029, 1034 (2003). The Court does not believe
that jurists of reason would debate the Court’s resolution of Petitioner’s claims or find
25

that he should receive encouragement to proceed further. The Court concludes that
Petitioner has failed to make a substantial showing of the denial of a constitutional right,
and therefore declines to issue a certificate of appealability. The Court also concludes
that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any
appeal would be frivolous and cannot be taken in good faith. See Fed. R. App. P. 24(a).
Accordingly,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED;
IT IS FURTHER ORDERED that the Court DECLINES to issue a Certificate of
Appealability;
IT IS FURTHER ORDERED that Petitioner is DENIED leave to appeal in
forma pauperis.
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Date: March 20, 2012
Copies to:
Laura Moody, A.A.G.
Charles Taylor, #222685
Chippewa Correctional Facility
4269 W. M-80
Kincheloe, MI 49784

26