Stevenson v. Scutt

Filing 9

ORDER Granting Certificate of Appealability. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADRIAN DEANDRE STEVENSON,
Petitioner,

Case Number 09-13358
Honorable David M. Lawson

v.
CINDI S. CURTIN,
Respondent.
________________________________________/
ORDER GRANTING CERTIFICATE OF APPEALABILITY
Petitioner Adrian Deandre Stevenson filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, challenging his conviction of first-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520b(1)(a). Afer the petitioner was found guilty by a jury in the Wayne County,
Michigan circuit court, the court sentenced him to 45 to180 months in prison. The petition raised
two claims: (1) the petitioner’s rights under the Due Process Clause were violated because he did
not receive adequate notice of the charges when the prosecutor changed the date of the offense
during post-conviction proceedings; and (2) he was deprived of the effective assistance of counsel
when his trial counsel presented alibi evidence for the wrong time period and failed to ascertain the
correct date of the offense. The Court found that neither of the petitioner’s claims had merit and
denied the petition.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts, which was amended as of December 1, 2009:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C.
§ 2253(c)(2). If the court denies a certificate, a party may not appeal the denial but

may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.
Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
The Court, although it did not necessarily agree with the state court’s decision, held that the
state court’s adjudication of the petitioner’s due process claim was not unreasonable because there
were ample pretrial indications that victim maintained that the crime occurred in the winter of 20042005. United States v. Abernathy, No. 08-20103, 2009 WL 2843917, at *1 (E.D. Mich. Sept. 1,
2009) (citing Dowell v. Lensing, 805 F. Supp. 1335, 1343 (M.D. La. 1992) (stating that “it is equally
true, at least in the context of federal habeas corpus review, that the question of whether the accused
was denied the right to be informed of the charge against him does not turn exclusively upon the
content of the indictment or information. . . . [T]he accused’s constitutional right to notice . . . can
be satisfied by the availability of other means of obtaining notice of the factual or legal basis of the
charge against him, such as a bill of particulars, a preliminary examination and criminal pre-trial

-2-

discovery”)). The Court believes that reasonable jurists could debate the outcome of this issue and,
therefore, will grant a certificate of appealability on this issue.
The Court denied the petitioner’s ineffective assistance claim because the petitioner did not
establish prejudice; he did not show a reasonable probability that the result of his trial would have
been more favorable if he presented additional evidence in support of his alibi defense, nor did he
show that he was prejudiced by his trial counsel’s failure to request a bill of particulars and then
present a defense for the winter of 2004-2005. The Court finds that reasonable jurists could
disagree. The Court will grant a certificate of appealability on this issue as well.
Accordingly, it is ORDERED that a certificate of appealability is GRANTED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 30, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or
first class U.S. mail on July 30, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

-3-