Vance v. Woods
OPINION and ORDER on Remand denying 40 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL D. VANCE,
CASE NO. 09-CV-11368
HON. GEORGE CARAM STEEH
OPINION AND ORDER ON REMAND DENYING THE
PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
Michael D. Vance, (“Petitioner”), confined at the Parnall Correctional
Facility in Jackson, Michigan, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner
challenges his conviction for seven counts of first-degree criminal sexual
conduct, M.C.L.A. 750.520b(1)(a); and three counts of second-degree
criminal sexual conduct, M.C.L.A. 750.520c(1)(a). For the reasons stated
below, the petition for writ of habeas corpus is DENIED WITH
Petitioner was charged with numerous counts of criminal sexual
conduct in Oakland County Circuit Court Case # 03-193604-FC and was
separately charged with one count of second-degree criminal sexual
conduct in Oakland County Circuit Court Case # 03-192752-FH. The judge
ordered these two cases consolidated for a single trial.
B.K. 1 testified that petitioner was her mother’s boyfriend and lived
with her and her mother in an apartment. B.K. was born on November 27,
1991. B.K. testified that during a two week period when she was nine
years old, petitioner woke her up in the middle of the night, took her to the
bathroom, and forced her to perform fellatio on him while petitioner sat on
the toilet and the victim sat on the bathroom floor. (Tr. 6/8/2004, pp. 11526). After the two-week period, B.K. wrote a note to her mother to inform
her about the sexual assaults. B.K.’s mother requested that B.K. not tell
her grandmother about the sexual assaults. (Id., at pp. 128-30). Three
years later, when B.K. was in middle school, she informed a friend, a
school counselor, and personnel at Care House about the sexual assaults.
(Id., at pp. 131-32).
Because both of the victims were minors at the time of the offenses, this Court will refer to them
solely by their initials in order to preserve their privacy.
Cheryl Lynn Andreen had lived in another unit in the same apartment
building that B.K., her mother, and petitioner had resided in. Andreen
testified that one day in March of 2001, Andreen’s roommate pounded on
the door while she was taking a shower and asked her to go upstairs and
speak with B.K.’s mother. Andreen went upstairs and noticed that B.K.’s
mother was crying and B.K. appeared upset. B.K.’s mother handed
Andreen a notebook which contained a note in a child’s handwriting, stating
“Mommy, Michael is making me put his penis in my mouth. Make him
stop.” When B.K.’s mother asked Andreen what she should do, Andreen
suggested that she should call the police, but B.K.’s mother indicated that
she would like to speak with petitioner first. Andreen suggested that B.K.’s
mother at least speak with a friend of hers who was a lieutenant with the
Lake Orion Police. Andreen subsequently called this lieutenant and asked
for his advice. (Id., pp. 169-75).
K.V. testified that she was a second-grader at the time of petitioner’s
trial. Petitioner was one of her mother’s prior boyfriends. When K.V. was
six years old, petitioner made her play “with his private”, i.e. with what
petitioner used to “go to the bathroom.” K.V. testified that petitioner tried to
make her use her mouth to stimulate him, but she did it with her hands.
K.V. testified that petitioner did this in an area with trees all around and a
sign in the middle. K.V. subsequently told her mother about the assault
after petitioner had moved out of their residence. (Tr. 6/9/2004, pp. 10-20).
K.V.’s mother confirmed that K.V. had informed her that petitioner
sexually assaulted her. (Id., pp. 30-35). On cross-examination, K.V.’s
mother admitted that she was manic-depressive, that petitioner had broken
up with her, that petitioner had obtained a personal protection order against
her as a result of her trying to make contact with him, and that it was her
ex-husband who reported the incident to the police on May 14, 2003, after
she had told him what had happened. (Id., pp. 39-41).
K.V.’s father testified that he wrote a statement for the police on May
6, 2003. In this statement, K.V.’s father indicated that K.V. informed him
that petitioner had taken her to a park and asked her to touch him on his
private parts with her mouth. K.V. told him that she did not want to do that
and touched petitioner’s genitals with her hands instead. K.V.’s father
indicated that his daughter subsequently pointed out to him where the
assault had taken place. (Id., pp. 49-50, 54-55).
Petitioner’s mother, Imogene Ruth Cochrane, testified for the
defense. One night, B.K.’s mother pounded on her door and asked her to
“go get Michael with me.” B.K.’s mother informed Cochrane of B.K.’s
allegations en route to pick up petitioner from his workplace. When
confronted with the allegations, petitioner told Cochrane and B.K.’s mother
that “I’ve never heard anything like this before, I’ve never done anything
like this before.” (Id., pp. 65-69). A few days later, B.K.’s mother asked
Cochrane to look at a letter that B.K. had allegedly written. Cochrane
testified that the handwriting did not look like it was done by a child and
was not worded as a child would have worded it. Cochrane told petitioner
and B.K.’s mother after reviewing the letter that she did not know what to
think of this because petitioner had a good military career. B.K.’s mother
called B.K. and asked her if this was her letter or not. The trial court then
sustained the prosecutor’s objection on hearsay grounds and would not
permit Cochrane to testify what B.K. had stated in her answer to her
questions. (Id., pp. 70-80).
Petitioner testified in his own behalf and denied sexually assaulting
either victim. (Tr. 6/10/2004, pp. 31-32, 38, 45, 50-56, 60-61, 77-81).
Petitioner’s convictions were affirmed on appeal. People v. Vance,
Nos. 260292; 261914 (Mich.Ct.App. May 26, 2005); lv. den. 474 Mich.
1024, 708 N.W.2d 402 (2006).
Petitioner then filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. Seq., which the trial court denied. People v.
Vance, Nos. 03-192752-FH/03-193604-FC (Oakland County Circuit Court,
March 8, 2007). The Michigan appellate courts denied petitioner leave to
appeal. People v. Vance, No. 282797 (Mich.Ct.App. April 25, 2008); lv.
den. 482 Mich. 1185, 758 N.W.2d 562 (2008).
In 2009, petitioner filed a petition for writ of habeas corpus. This
Court granted petitioner a conditional writ of habeas corpus, finding that
petitioner was denied his right to the effective assistance of appellate
counsel with respect to his appeal of right with the Michigan Court of
Appeals due to appellate counsel’s failure to file an appeal of right in Case
# 03-193604-FC and the trial court’s failure to properly advise petitioner of
his right to appeal in Case # 03-192752-FH. This Court ordered that
petitioner’s appeal of right be reinstated in both cases within sixty days of
the Court’s order and that the Michigan Court of Appeals undertake to
appoint appellate counsel to represent petitioner. See Vance v. Scutt, No.
2:09-CV-11368; 2012 WL 666520 (E.D. Mich. Feb. 29, 2012).
The Sixth Circuit affirmed the conditional grant of a writ of habeas
corpus with respect to Case No. 03-193604-FC and ordered that
petitioner’s state appellate court rights be restored with respect to that
case. The Sixth Circuit, however, reversed the grant of the writ in Case #
03-192752-FH and remanded for further proceedings consistent with the
opinion. Vance v. Scutt, 573 F. App'x. 715 (6th Cir. 2014).
On remand, this Court held the petition in abeyance pending the
completion of petitioner’s appeal of right in Case No. 03-193604-FC. Vance
v. Scutt, No. 2:09-CV-11368, 2014 WL 4192743 (E.D. Mich. Aug. 22,
Petitioner’s conviction in Case No. 03-193604-FC was affirmed
following his new appeal of right, although the case was remanded for resentencing because of an error in the scoring of the sentencing guidelines.
People v. Vance, No. 323408, 2016 WL 3700301 (Mich. Ct. App. Jan. 26,
2016), lv. den. 499 Mich. 986, 882 N.W.2d 159 (2016). Petitioner was resentenced on September 1, 2016.
On October 13, 2016, this Court reopened the case and amended the
caption but denied petitioner’s motion for the appointment of counsel. The
Court granted petitioner an extension of time to file an amended petition.
On January 30, 2017, this Court granted petitioner’s motion to amend his
habeas petition and ordered that the amended petition be served upon
respondent. Respondent filed an answer on July 5, 2017 and petitioner
filed a reply brief on August 28, 2017.
In his amended habeas petition, petitioner seeks relief on twelve
separate grounds: (1) the trial judge erred in consolidating the two cases
for trial, (2) the similar acts evidence was more prejudicial than probative
and this denied petitioner his constitutional right to a fair trial, (3) petitioner
was denied his constitutional right to present a defense because the trial
court prevented him from impeaching the testimony of one of the
complainants, (4) petitioner was denied a fair trial by introduction of two
prior consistent statements when there was no claim of recent fabrication,
(5) cumulative error, (6) the trial court erred in scoring OV-8, OV-9 and OV11 of the Michigan Sentencing Guidelines, (7) petitioner was denied a fair
trial because of prosecutorial misconduct, (8) The trial court erred in
scoring 15 points for OV-10 of the Michigan Sentencing Guidelines, (9) the
trial court violated the U.S. and Michigan Constitutions in sentencing
petitioner to a prison term of 15 to 50 years on the CSC I convictions.
(10) petitioner was denied his due process and right to a fair trial by the
prosecutor’s misconduct in improperly impugning petitioner’s character and
veracity and improperly vouching for the credibility of the complainants’
during closing argument and defense counsel was ineffective for failing to
object, (11) petitioner was denied his constitutional right to due process of
law and a fair trial when the court failed to state its reasons for denying trial
counsel’s motion for a directed verdict, and (12) the trial court committed
reversible error when it assessed attorney fees in an amended order.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[A] state court’s determination
that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to show that the
state court’s rejection of his 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.” Harrington, 562 U.S.
at 103. A habeas petitioner should be denied relief as long as it is within
the “realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
Petitioner filed a petition with this Court, raising twelve claims. The Sixth Circuit has observed:
“When a party comes to us with nine grounds for reversing the district court, that usually means there are
none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).
A. Claims # 1 and # 2. The misjoinder and “other acts
In his first claim, petitioner contends that he was denied a fair trial
when the trial court improperly consolidated petitioner’s two separate
criminal sexual conduct cases that involved two different victims into one
trial. In his related second claim, petitioner argues that the trial judge erred
in ruling that evidence of petitioner’s sexual assaults against each of the
victims would be admissible under M.R.E. 404(b) at a trial involving the
other victim, had each of the victims been tried separately.
The trial judge prior to trial granted the prosecution’s motion to
consolidate the two cases into one trial, on the ground that the cases
involved two minor children that took place during “a somewhat similar time
period.” The judge further noted that some of the police officers who would
be testifying had been involved in both cases. The judge further granted
the prosecution’s motion to introduce evidence of the separate sexual
assault charges regarding each victim as “prior bad acts” evidence
pursuant to M.R.E. 404(b), namely, to show that petitioner had a plan or
scheme of meeting women who have small children, moving in with them,
and molesting their children. (Tr. 1/7/1004, pp. 11-13).
Improper joinder does not, by itself, violate the federal constitution.
United States v. Lane, 474 U.S. 438, 446, n. 8 (1986). The Supreme Court
in Lane suggested in passing that misjoinder could rise “ to the level of a
constitutional violation only if it results in prejudice so great as to deny a
defendant his Fifth Amendment right to a fair trial.” Id. The Sixth Circuit
noted that this language in Lane concerning a court’s failure to sever
criminal charges is simply dicta and thus not clearly established federal
law. See Mayfield v. Morrow, 528 F. App’x. 538, 541-42 (6th Cir. 2013).
Because “‘clearly established Federal law’ for purposes of § 2254(d)(1)
refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions[.],’” Id. (quoting Williams v. Taylor, 529 U.S. at 412), the Sixth
Circuit concluded that the habeas petitioner could not rely on Lane to
obtain habeas relief on his claim that he had been deprived of his right to a
fair trial when the judge denied his motion to sever different rape charges.
Id. The Ninth Circuit has likewise held that a habeas petitioner could not
rely on the Supreme Court’s dicta in Lane to obtain habeas relief on an
improper misjoinder claim, particularly where that dicta was merely
mentioned as a comment in a footnote of the opinion. See Collins v.
Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Another judge in this district
indicated that he had “found no Supreme Court cases holding that a
defendant in a criminal case has a constitutional right to a separate trial on
each of the charges against him.” Rodriguez v. Jones, 625 F. Supp. 2d
552, 560-61 (E.D. Mich. 2009).
Given the lack of holdings by the Supreme Court on the issue of
whether a state court violates a habeas petitioner’s due process rights by
joining together unrelated criminal charges in a single trial, the Michigan
Court of Appeals’ rejection of petitioner’s improper joinder claim was not an
unreasonable application of clearly established federal law. See Wright v.
Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77
( 2006); See also Comaduran v. Clark, 452 F. App’x. 728, 728-29 (9th Cir.
Moreover, such claims have typically been rejected by the Sixth
Circuit even on direct review of federal criminal convictions. The Sixth
Circuit held that to establish prejudice from joinder, a defendant must point
to specific evidence that the joinder was prejudicial and “an unproven
assertion is not compelling evidence of actual prejudice.” U.S. v. Saadey,
393 F. 3d 669, 679 (6th Cir. 2005). A jury is presumed capable of
considering each criminal count separately and any prejudice arising from
trial of joined offenses may be cured by limiting instructions. U.S. v. Cope,
312 F. 3d 757, 781 (6th Cir. 2002). “Error based on misjoinder is almost
always harmless where...the trial court issues a careful limiting instruction
to the jury on the issue of possible prejudice resulting from the joinder.”
U.S. v. Cody, 498 F. 3d 582, 587 (6th Cir. 2007).
In the present case, it was not fundamentally unfair to join the
different charges against petitioner in a single trial because “ joinder was
an efficient use of resources.” Rodriguez v. Jones, 625 F. Supp. 2d at 561;
See also Conte v. Cardwell, 475 F. 2d 698, 700 (6th Cir. 1973)
(participation by state habeas corpus petitioner in successive prison riots in
the same institution separated in time by less than two months were
sufficient circumstances to permit joinder of offenses in an indictment and
in a trial without violation of due process.).
Petitioner was also not prejudiced by the joinder of the charges,
because the Michigan Court of Appeals indicated that much of the same
evidence involving the two separate cases would have been admissible
against petitioner pursuant to M.R.E. 404(b) at separate trials. People v.
Vance, 2016 WL 370030, at * 2. Because much of the same evidence
would have been admitted against petitioner at separate trials, petitioner
was not prejudiced by the joinder of the charges in this case. See LaMar v.
Houk, 798 F.3d 405, 428 (6th Cir. 2015), U.S. v. Jacobs, 244 F. 3d 503,
507 (6th Cir. 2001). Petitioner is not entitled to habeas relief because he
failed to identify which evidence that was admitted at his joint trial would
have been inadmissible if he had been tried separately with respect to each
set of charges. LaMar, 798 F. 3d at 428. Moreover, the trial court gave the
jurors a cautionary instruction, which advised them that the fact that
petitioner was charged with more than one offense was not evidence of his
guilt and that they could not use this evidence to determine that he was a
bad person or that he was likely to commit these crimes, but only for the
limited purpose of deciding whether or not petitioner acted purposefully or
that petitioner had used a scheme, plan, or system that he had used before
or since. (Tr. 6/10/2004, p. 119). The trial court’s cautionary instruction
adequately cured any possible prejudice from the joinder of the separate
charges at one trial. Jacobs, 244 F. 3d at 507. Petitioner is not entitled to
relief on his first claim.
In his second claim, petitioner argues that the trial court erred in
admitting into evidence prior bad acts evidence against him in violation of
It is “not the province of a federal habeas court to reexamine statecourt determinations on state-court questions.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to
deciding whether a state court conviction violates the Constitution, laws, or
treaties of the United States. Id. Errors in the application of state law,
especially rulings regarding the admissibility of evidence, are usually not
questioned by a federal habeas court. Seymour v. Walker, 224 F. 3d 542,
552 (6th Cir. 2000).
Petitioner’s claim that the state court violated M.R.E. 404(b) by
admitting “other acts” evidence at his trial would not entitle him to habeas
relief because this claim is non-cognizable on habeas review. See Bey v.
Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72
(Supreme Court’s habeas powers did not permit Court to reverse state
court conviction based on their belief that the state trial judge erred in ruling
that prior injury evidence was admissible as bad acts evidence under
California law). The admission of this “other acts” evidence against
petitioner at his state trial does not entitle him to habeas relief, because
there is no clearly established Supreme Court law which holds that a state
violates a habeas petitioner’s due process rights by admitting propensity
evidence in the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329
F. 3d 496, 512 (6th Cir. 2003). Petitioner is not entitled to habeas relief on
his first or second claims.
B. Claim # 3. The right to present a defense claim.
Petitioner next contends that he was denied his right to present a
defense when the trial judge refused to permit petitioner’s mother Imogene
Ruth Cochrane to testify that B.K. told her that she was in the upper level of
her bunk bed when petitioner abused her. Petitioner claims that this
testimony was admissible to impeach B.K., who initially testified that she
did not tell Cochrane that she was in the bunk bed, but then testified that
she did not remember the conversation with Cochrane. The trial judge
excluded the testimony on the grounds that it was hearsay.
Just as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he or she also has
the right to present his or her own witnesses to establish a defense. This
right is a fundamental element of the due process of law. Washington v.
Texas, 388 U.S. 14, 19 (1967); See also Crane v. Kentucky, 476 U.S. 683,
690 (1986)(“whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants ‘a meaningful opportunity to present a complete
defense’”)(internal citations omitted). However, an accused in a criminal
case does not have an unfettered right to offer evidence that is
incompetent, privileged, or otherwise inadmissible under the standard rules
of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme
Court, in fact, has indicated its “traditional reluctance to impose
constitutional constraints on ordinary evidentiary rulings by state trial
courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court
judges “wide latitude” to exclude evidence that is repetitive, marginally
relevant, or that poses a risk of harassment, prejudice, or confusion of the
issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
The Michigan Court of Appeals agreed that the trial court erred in
excluding Cochrane’s testimony, but found the error to be harmless:
Another witness, Cheryl Andreen, testified that she wrote in her
statement to the police that MK (sic) “indicated” that the abuse
occurred when she was in the upper bunk bed in her bedroom.
Andreen also testified that she was never told that the abuse
occurred in the bathroom. Andreen’s testimony regarding BK’s
prior inconsistent statement impeached BK’s testimony denying
that she told Andreen about the bunk bed. Although Andreen’s
testimony did not specifically impeach BK’s testimony that she
could not remember her statements to Cochrane, it fulfilled the
same purpose of Cochrane’s excluded testimony, with the
advantage that Andreen had no familial bias in defendant’s
favor. Consequently, it is not more probable than not that the
outcome would have been different if the jury had heard the
same testimony from Cochrane. Therefore, the error was
People v. Vance, 2016 WL 370030, at * 7.
In the present case, the trial court’s ruling did not deprive petitioner of
a fundamentally fair trial. Although the trial judge did not allow Ms.
Cochrane to testify about B.K.’s prior inconsistent statement, Ms. Andreen
was permitted to testify that she wrote in her statement to the police that
B.K. informed Andreen that the abuse occurred when B.K. was in the upper
bunk bed in her bedroom. Andreen also testified that B.K. never told her
that the sexual abuse occurred in the bathroom. The trial court’s exclusion
of testimony from Ms. Cochrane about B.K.’s prior inconsistent statement
was not so egregious that it effectively denied petitioner a fair trial, in light
of the fact that petitioner was not completely barred from presenting
testimony that B.K. had given prior inconsistent statements concerning
where the sexual assaults had taken place. See Fleming v. Metrish, 556
F.3d 520, 535-36 (6th Cir. 2009). With the quantum of evidence on the
defense theory in the record, this Court concludes that the petitioner was
afforded “a meaningful opportunity to present a complete defense.” Allen v.
Howes, 599 F. Supp. 2d 857, 873 (E.D. Mich. 2009)(citing Crane, 476 U.S.
at 690 (citation and internal quotations omitted)). Petitioner is not entitled
to relief on his third claim.
C. Claim # 4. The prior consistent statements claim.
Petitioner next contends that the trial court erred in permitting the
prosecutor to introduce out of court statements made by the victims to
other witnesses as prior consistent statements, because there were no
allegations of recent fabrication on the part of the victims.
The admission of a prior consistent statement when the declarant is
available for cross-examination at trial, as was the case here, is not a
question that rises to the level of a constitutional violation for purposes of
habeas corpus relief. See United States ex. rel. Gonzalez v. DeTella, 918
F. Supp. 1214, 1222 (N.D. Ill. 1996)(internal citations omitted). Indeed,
there is no violation of the Sixth Amendment’s Confrontation Clause when
the witness testifies at trial and is subject to unrestricted cross-examination.
United States v. Owens, 484 U.S. 554, 560 (1988). As the Supreme Court
has explained, “where the declarant is not absent, but is present to testify
and to submit to cross examination, our cases, if anything, support the
conclusion that the admission of his out of court statements does not
create a confrontation clause problem.” California v. Green, 390 U.S. 149,
162 (1970). In this situation, “the traditional protections of the oath,
cross-examination, and opportunity for the jury to observe the witness’
demeanor satisfy the constitutional requirements.” Owens, 484 U.S. at 560
(internal citations omitted).
Petitioner’s claim about the admission of the victims’ prior consistent
statements involves at best an error of state law that is not cognizable in
federal habeas review. See Regan v. Hoffner, 209 F. Supp. 2d 703, 715
(E.D. Mich. 2002). Because the victims were subject to cross-examination
at petitioner’s trial, the admission of their out of court statements presented
no Confrontation Clause problems. Id. Moreover, there is “no Supreme
Court decision holding that the improper use of a witness’s prior consistent
statements violates the Constitution.” Drain v. Woods, 902 F. Supp. 2d
1006, 1037 (E.D. Mich. 2012); aff’d, 595 F. App’x. 558, 561 (6th Cir. 2014).
Because the admission of the prior consistent statements did not deprive
the petitioner of a fundamentally fair trial, petitioner is not entitled to habeas
relief on his fourth claim. See Benton v. Booker, 403 F. App’x. 984, 986
(6th Cir. 2010).
D. Claim # 5. The cumulative error claim.
Petitioner next contends that he is entitled to habeas relief because
of cumulative error.
The cumulative weight of alleged constitutional trial errors in a state
prosecution does not warrant federal habeas relief; because there is no
clearly established federal law permitting or requiring the cumulation of
distinct constitutional claims to grant habeas relief. Moore v. Parker, 425
F.3d 250, 256 (6th Cir. 2005). Therefore, petitioner is therefore not entitled
to habeas relief on the grounds of cumulative error. Id.
E. Claims # 6, 8, 9, and 12. The sentencing claims.
The Court consolidates petitioner’s four sentencing claims together
for judicial clarity.
Petitioner in his sixth and eighth claims challenges the scoring of
several offense variables under the Michigan Sentencing Guidelines.
Petitioner’s claim that the state trial court misapplied the Michigan
Sentencing Guidelines is not a cognizable claim for federal habeas review,
because it is basically a state law claim. See Howard v. White, 76 F. App’x.
52, 53 (6th Cir. 2003); See also Haskell v. Berghuis, 695 F. Supp. 2d 574,
598 (E.D. Mich. 2010). Errors in the application of state sentencing
guidelines cannot independently support habeas relief. See Kissner v.
Palmer, 826 F. 3d 898, 904 (6th Cir. 2016). Petitioner’s claim that the state
trial court improperly departed above the sentencing guidelines range
would not entitle him to habeas relief, because such a departure does not
violate any of petitioner’s federal due process rights. See Austin v.
Jackson, 213 F. 3d 298, 301 (6th Cir. 2000).
Petitioner in his ninth claim argues that the sentence of fifteen to fifty
years that he received on the first-degree criminal sexual conduct
convictions was cruel and unusual punishment.
A sentence imposed within the statutory limits is not generally subject
to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); The
offense of first-degree criminal sexual conduct is punishable by up to life in
prison. Petitioner’s sentence of fifteen to fifty years was within the statutory
maximum for the first-degree criminal sexual conduct charges. A sentence
within the statutory maximum set by statute does not normally constitute
cruel and unusual punishment. Austin v. Jackson, 213 F. 3d at 302.
A habeas petitioner who seeks to challenge the severity of a prison
sentence on Eight Amendment grounds faces a formidable challenge. He
or she may obtain relief only by demonstrating that a state court decision
contravened or misapplied “clearly established” Supreme Court precedent.
However, the Supreme Court has acknowledged “that our precedents in
this area have not been a model of clarity.” Lockyer v. Andrade, 538 U.S.
63, 72 (2003). “Indeed, in determining whether a particular sentence for a
term of years can violate the Eighth Amendment, we have not established
a clear or consistent path for courts to follow.” Id. Thus, the Supreme Court
declared that the general applicability of the proportionality standard to
term-of-years sentences was clearly established, but confessed a lack of
clarity as to the factors lower courts should consider in making that
determination. Id. The Supreme Court concluded that “the only relevant
clearly established law amenable to the ‘contrary to’ or ‘unreasonable
application of’ framework is the gross disproportionality principle, the
precise contours of which are unclear, applicable only in the ‘exceedingly
rare’ and ‘extreme’ case.” Id.
In Lockyer, the Supreme Court reversed the Ninth Circuit’s grant of a
writ of habeas corpus on the ground that two twenty-five-year-to-life
sentences imposed under California's “three strikes” law, where the
triggering felony was the theft of $ 150 worth of video tapes, violated the
Cruel and Unusual Punishment Clause of the Eighth Amendment. The
Supreme Court noted that the “thicket” created by its jurisprudence
consisted primarily of its decisions in Solem v. Helm, 463 US. 277 (1983),
Harmelin v. Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445
U.S. 263 (1980). The California state court observed that the
proportionality rule set forth in Solem was cast into doubt by Harmelin, and
proceeded to analyze Andrade’s sentence under the approach taken in
Rummel, where the Supreme Court rejected a claim that a life sentence
imposed under Texas’ recidivist statute was grossly disproportionate to the
theft felonies that formed the predicate for the sentence. The California
court concluded that Andrade’s sentence was not disproportionate. The
Supreme Court held that this decision was not contrary to or an objectively
unreasonable application of federal law that was clearly established by the
Supreme Court. Lockyer, 538 U.S. at 72-77.
A plurality of the Supreme Court held that the Eighth Amendment
does not require strict proportionality between the crime and sentence.
Harmelin, 501 U.S. at 965. As the Supreme Court observed in Lockyer, it
is generally recognized after Harmelin that the Cruel and Unusual
Punishment Clause of the Eighth Amendment forbids only an extreme
disparity between crime and sentence, that is, sentences that are “grossly
disproportionate” to the crime. Id. at 1001 (Kennedy, J., concurring);
Coleman v. Mitchell, 268 F. 3d 417, 453 (6th Cir. 2001)(citing Coker v.
Georgia, 433 U.S. 584, 592 (1977)); United States v. Hopper, 941 F. 2d
419, 422 (6th Cir. 1991)).
“Outside the context of capital punishment, successful challenges to
the proportionality of particular sentences have been exceedingly rare.”
Rummel, 445 U.S. at 272. Rummel was convicted of obtaining $ 120.75 by
false pretenses, a crime punishable by at least two years, but not more
than ten years in prison. He was sentenced as a recidivist to life
imprisonment with the possibility of parole. His two prior felonies consisted
of fraudulent use of a credit card to obtain $ 80 worth of goods and
services, a felony punishable by two to ten years in prison; and passing a
forged check for $ 28.36, a crime punishable by two to five years in prison.
The Supreme Court held that Rummel’s life sentence under the state
recidivist statute did not constitute cruel and unusual punishment. In
Harmelin, the Supreme Court upheld a life sentence without the possibility
of parole for possession of more than 650 grams of cocaine for an offender
with no prior felony convictions.
The Supreme Court overturned a life sentence in Solem on the
ground that it was significantly disproportionate to Helm’s crime and
therefore prohibited by the Eighth Amendment. However, Helm had been
sentenced to life imprisonment without the possibility of parole for uttering a
“no account” check for $ 100, and his prior felonies also were minor,
nonviolent crimes. By contrast, the Supreme Court reaffirmed Rummel and
found constitutionally sufficient a sentence of twenty-five years to life
imposed upon a fifth felony conviction. Ewing v. California, 538 U.S. 11, 2431 (2003).
In the present case, petitioner’s sentence fell within the maximum
sentence set by state law, and “a sentence within the statutory maximum
set by statute generally does not constitute ‘cruel and unusual
punishment.’” United States v. Organek, 65 F. 3d 60, 62 (6th Cir.
1995)(citation omitted)(quoted with approval in Austin v. Jackson, 213 F.
3d at 302); Friday v. Pitcher, 200 F. Supp. 2d 725, 744 (E.D. Mich. 2002).
“As long as the sentence remains within the statutory limits, trial courts
have historically been given wide discretion in determining ‘the type and
extent of punishment for convicted defendants.’” Austin, 213 F. 3d at 301
(quoting Williams v. New York, 337 U.S. 241, 245 (1949)).
In light of “the vagueness of the gross-disproportionality principle and
the admonition that the principle is “applicable only in the ‘exceedingly rare’
and ‘extreme’ case,” this Court concludes that the state courts did not
unreasonably apply clearly established law in rejecting petitioner’s
proportionality claim. See Smith v. Howerton, 509 F. App’x. 476, 484 (6th
Cir. 2012)(internal quotations omitted). Moreover, petitioner’s sentence of
fifteen to fifty years for first-degree criminal sexual conduct was not
disproportionate to the offense or to the offender. See e.g. Stadler v.
Curtin, 682 F. Supp. 2d 807, 829-30 (E.D. Mich. 2010)(sentence of
twenty-five to forty years for first degree criminal sexual conduct was not
To the extent that petitioner is arguing that the trial court failed to
afford him individualized consideration of mitigating evidence on his behalf,
this claim fails because the U.S. Supreme Court has limited its holding
concerning mitigating evidence to capital cases. Alvarado v. Hill, 252 F.3d
1066, 1069 (9th Cir. 2001)(citing to Harmelin v. Michigan, 501 U.S. at 996).
Because petitioner had no constitutional right to an individualized sentence,
no constitutional error would occur if the state trial court failed to consider
mitigating evidence on his behalf at sentencing. See Hastings v. Yukins,
194 F. Supp. 2d 659, 673 (E.D. Mich. 2002).
Petitioner further claims that the trial court judge failed to consider
petitioner’s rehabilitative potential when fashioning his sentence.
Petitioner’s claim that the trial court failed to consider his rehabilitative
potential in fashioning his sentence is non-cognizable on federal habeas
review. See Grays v. Lafler, 618 F. Supp. 2d 736, 749 (W.D. Mich. 2008).
“There is no constitutional principle that prefers rehabilitation over
deterrence and retribution as a goal of sentencing.” Fielding v. LeFevre,
548 F. 2d 1102, 1108 (2nd Cir. 1977). Petitioner is not entitled to relief on
his ninth claim.
In his twelfth claim, petitioner contends that the trial court erred in
ordering petitioner to reimburse the court for the cost of his court-appointed
Petitioner is unable to challenge the imposition of attorney fees by the
trial court. Where a habeas petitioner is not claiming the right to be
released but is challenging the imposition of a fine or other costs, he or she
may not bring a petition for writ of habeas corpus. See United States v.
Watroba, 56 F. 3d 28, 29 (6th Cir. 1995). This Court lacks subject matter
over petitioner’s claim that the state court unconstitutionally required him to
pay court-appointed counsel’s fees, because petitioner’s claim does not
challenge his confinement. See Washington v. McQuiggin, 529 F. App’x.
766, 772–73 (6th Cir. 2013). Petitioner is not entitled to relief on his twelfth
F. Claims # 7 and # 10. The prosecutorial
misconduct/ineffective assistance of counsel claims.
Petitioner next contends he was denied a fair trial because of
prosecutorial misconduct. Petitioner further argues that counsel was
ineffective for failing to object to the misconduct.
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir.
2004)(citing Bowling v. Parker, 344 F. 3d 487, 512 (6th Cir. 2003)). A
prosecutor’s improper comments will be held to violate a criminal
defendant’s constitutional rights only if they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will
thus form the basis for habeas relief only if the conduct was so egregious
as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to
obtain habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court’s rejection of his or her
prosecutorial misconduct claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Parker v. Matthews, 567 U.S.
37, 48 (2012)(quoting Harrington, 562 U.S. at 103).
Petitioner first argues that the prosecutor committed misconduct by
mentioning in her closing argument that the adults in B.K.’s life were “really
messed up”, pointing out that her mom kept living with petitioner, that the
officer that was originally called did not report it, and that Andreen did not
report it. Petitioner further points to the prosecutor’s comments that the
victims’ respective mothers were “trouble”, that they “were ripe for the
picking”, which is what petitioner did with them, but that the victims’
mothers did not protect their children, which in turn was why they no longer
had custody of the victims. Petitioner suggests that the prosecutor’s
remarks about the victims’ mothers is not supported by the evidence.
It is improper for a prosecutor during closing arguments to bring to
the jury any purported facts which have not been introduced into evidence
and which are prejudicial; however, prosecutors must be given leeway to
argue reasonable inferences from the evidence. Byrd v. Collins, 209 F. 3d
486, 535 (6th Cir. 2000).
In the present case, it was reasonable to infer from the evidence that
the victims’ mothers were dysfunctional and did not immediately report the
sexual assaults to the police. It was also reasonable to infer from the
evidence that petitioner sought out these two women so as to exploit their
Moreover, petitioner is not entitled to habeas relief on his claim,
because the remarks were isolated and the evidence against the petitioner
was strong. See Macias v. Makowski, 291 F. 3d 447, 453-54 (6th Cir.
2002); Byrd, 209 F. 3d at 536. Any prosecutorial misconduct was also
ameliorated by the trial court’s instruction that the lawyers’ comments and
statements were not evidence. (Tr. 6/10/2004, pp. 116-17). See Hamblin v.
Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003).
Petitioner further points to the prosecutor’s comments about how
difficult it was for the two victims to testify about their sexual experiences,
but that under the circumstances they did “pretty good.”
To the extent that petitioner is arguing that the prosecutor vouched
for the victims by pointing out how well that they had testified under the
circumstances, he would not be entitled to relief. 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)(internal citations omitted). However, a prosecutor is free to argue
that the jury should arrive at a particular conclusion based upon the record
evidence. Id. The test for improper vouching for a witness is whether the
jury could reasonably believe that the prosecutor was indicating a personal
belief in the witness’ credibility. United States v. Causey, 834 F. 2d 1277,
1283 (6th Cir. 1987). “[G]enerally, 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.” See United States v.
Francis, 170 F. 3d 546, 550 (6th Cir. 1999)(internal citations omitted). It is
worth noting that the Sixth Circuit has never granted habeas relief for
improper vouching. Byrd v. Collins, 209 F.3d at 537 and n. 43. Even on
direct appeal from a federal conviction, the Sixth Circuit has held that to
constitute reversible error, a prosecutor’s alleged misconduct of arguing his
personal belief, in a witness’ credibility or in a defendant’s guilt, must be
flagrant and not isolated. See United States v. Humphrey, 287 F. 3d 422,
433 (6th Cir. 2002).
Petitioner is not entitled to habeas relief on this claim because the
prosecutor’s comments were brief and isolated. An isolated instance of
vouching does not make a state trial so constitutionally infirm so as to
justify federal habeas relief. See e.g. Joseph v. Coyle, 469 F. 3d 441, 474
(6th Cir. 2006). Secondly, even if this statements amounted to improper
vouching, it did not rise to the level of a due process violation necessary for
federal habeas relief, because the sizeable amount of evidence offered by
the state against petitioner made it unlikely that the jury was misled by this
brief statement. See Wilson v. Mitchell, 250 F. 3d 388, 398 (6th Cir. 2001).
Lastly, the jury was instructed that the lawyers’ statements and arguments
were not evidence. This instruction by the court cured any prejudice that
may have arisen from any improper vouching. Byrd, 209 F.3d at 537.
Petitioner further appears to argue that the prosecutor committed
misconduct by introducing prior bad acts evidence against him, in violation
of M.R.E. 404(b).
Although petitioner alleges prosecutorial misconduct, his claim
“amounts in the end to a challenge to the trial court’s decision to allow the
introduction of this evidence.” Webb v. Mitchell, 586 F. 3d 383, 397 (6th
Cir. 2009). “A prosecutor may rely in good faith on evidentiary rulings
made by the state trial judge and make arguments in reliance on those
rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). The trial
judge concluded that this evidence was relevant and admissible. There
was no violation of clearly established federal law for the prosecutor to rely
on the trial judge’s ruling in admitting this “other acts” evidence of
petitioner’s sexual assaults against the two different victims at petitioner’s
trial, regardless if the trial judge’s ruling was correct, thus petitioner is not
entitled to habeas relief on his claim. See Key v. Rapelje, 634 F. App’x.
141, 146–47 (6th Cir. 2015).
Petitioner also appears to argue that the prosecutor improperly
denigrated his character and veracity in her closing argument. Petitioner
points to the prosecutor’s statement that petitioner “made up” an incident
in which he caught KV watching a pornographic video, and her statement
that petitioner testified to a “ridiculous” story to explain Cochrane’s
damaging testimony that petitioner went to the police station to admit guilt.
The Michigan Court of Appeals rejected the claim, finding that the
prosecutor’s remarks that petitioner was not credible did not imply any
special knowledge, but instead urged the jury to evaluate petitioner’s
credibility based on the jurors’ understanding of what was believable and
what was not. The Michigan Court of Appeals further concluded that the
prosecutor’s characterization of petitioner’s attempt to explain Cochrane’s
testimony about his police contact as “ridiculous” did not attack petitioner
personally, but instead focused on the plausibility of his explanation.
Vance, 2016 WL 370030, at * 13.
The prosecutor’s comments, when viewed in context, indicate that
the prosecutor based her comments on inferences from the evidence
presented in court and not upon any personal knowledge. Because the
prosecutor’s comments about petitioner’s credibility was based on the
evidence presented in court, was only a small portion of the prosecutor’s
argument, and did not create the impression that the prosecutor knew of
evidence not presented to the jury, the prosecutor’s comments did not
deprive petitioner of a fair trial. See Cristini v. McKee, 526 F. 3d at 902.
The Court will reject petitioner’s related ineffective assistance of
counsel claim. To show that he or she was denied the effective assistance
of counsel under federal constitutional standards, a defendant must satisfy
a two prong test. First, the defendant must demonstrate that, considering
all of the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second,
the defendant must show that such performance prejudiced his defense. Id.
To show prejudice under Strickland for failing to object to
prosecutorial misconduct, a habeas petitioner must show that but for the
alleged error of his trial counsel in failing to object to the prosecutor’s
improper questions and arguments, there is a reasonable probability that
the proceeding would have been different. Hinkle v. Randle, 271 F. 3d
239, 245 (6th Cir. 2001). Because the Court has already determined that
the prosecutor’s remarks did not deprive petitioner of a fundamentally fair
trial, petitioner is unable to establish that he was prejudiced by counsel’s
failure to object to these remarks. Slagle v. Bagley, 457 F. 3d 501, 528 (6th
Cir. 2006). Petitioner is not entitled to habeas relief on his seventh and
G. Claim # 11. The failure to direct a verdict claim.
Petitioner finally contends that the trial court committed error by
failing to state any reasons for denying his motion for a directed verdict, in
violation of M.C.R. 6.419(F).
In King v. Trippett, 27 F. App’x. 506 (6th Cir. 2001), the Sixth Circuit
held that the state court’s misapplication of state law in failing to grant the
petitioner’s motion for a directed verdict was not cognizable in a federal
habeas corpus proceeding. Id., at 510 (citing Estelle, 502 U.S. at 67-68).
Thus, the trial court’s alleged violation of M.C.R. 6.419(F) in failing to give
reasons for denying petitioner’s motion for a directed verdict does not
entitle him to habeas relief.
The Court will deny the petition for writ of habeas corpus. The Court
will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate
this denial, the applicant is required to show that reasonable jurists could
debate whether, or agree that, the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 48384 (2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
to be debatable or wrong. Id. at 484. “The district court must issue or deny
a certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159
F. Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner
leave to appeal in forma pauperis, because the appeal would be frivolous.
Based upon the foregoing, IT IS ORDERED that the Petition for a
Writ of Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: September 21, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 21, 2017, by electronic and/or ordinary mail and
also Michael Vance #501288, Parnall Correctional Facility,
1780 E. Parnall, Jackson, MI 49201.
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