Williams v. Bergh

Filing 13

OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus, filed by James Williams, 2). Declining to Issue a Certificate of Appealability, and 3). Denying Permission to Proceed In Forma Pauperis on Appeal. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES WILLIAMS,
Petitioner,

Case Number 10-12861
Honorable Marianne O. Battani

v.
DAVID BERGH,
Respondent.
________________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DENYING
PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. §
2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree
criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(c), and first-degree home
invasion. MICH. COMP. LAWS § 750.110a(2). Petitioner was sentenced to 55-to-100 years
for the criminal sexual conduct conviction and 8-to-20 years for the home invasion
conviction. The petition will be denied because all six of Petitioner’s claims are either
meritless or barred by his procedural defaults. The Court will also deny Petitioner a
certificate of appealability and permission to proceed in forma pauperis on appeal.
Background
This Court recites verbatim the relevant 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). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
About 1:00 a.m. on May 11, 2005, the 13-year-old victim was sleeping
in her bed in her Detroit home. Her mother had just left the house to deliver

spare keys to a friend who had locked herself out of her car. Defendant, who
was not known by either the victim or her mother, entered the home without
permission. Defendant began choking the victim as she slept, awakening her.
When the victim tried to speak, defendant pushed her on her back, put his
hand over her mouth, and put a pillowcase over her face. He removed the
victim's shorts and underpants and placed his penis in her vagina. He then
licked and kissed her breasts and attempted to place his penis in her anus.
Defendant heard the victim's mother returning and fled from the house. The
victim was transported by ambulance to the hospital. She was then taken to
a sexual assault clinic, where a forensic nurse collected physical evidence
from her body. DNA found on the victim's body matched defendant's DNA.
The trial court granted the prosecution's motion to admit other acts
evidence of a sexual assault that defendant allegedly committed against a
17-year-old woman in 2001. This woman, in her early 20s at the time of trial,
testified that she was living with a friend in December 2001. On the night of
December 15, 2001, the woman was sleeping in a bedroom on the first floor
of the home. The woman awoke when an unknown male moved her on her
back and attempted to smother her by placing his hands around her neck
and nose. The perpetrator removed her sleep pants and underwear, licked
her vagina and anus, and penetrated her vagina with his penis. The
perpetrator then ran from the room and left the house. The woman could not
identify the perpetrator and did not know defendant. Nobody at the house
where the woman was staying in December 2001 had permitted the
perpetrator to enter. DNA found on the woman's body also matched
defendant's DNA.
People v. Williams, 2007 Mich. App. LEXIS 1749, *1-3 (Mich. Ct. App. July 17, 2007).
Following his conviction and sentence, Petitioner filed an appeal of right in the
Michigan Court of Appeals. His appellate brief raised three claims:
I. Petitioner was denied the effective assistance of counsel where his trial
counsel failed to meet with him until the day before trial.
II. The admission of the prior rape as similar acts evidence rendered
Petitioner’s trial fundamentally unfair.
III. The trial court erroneously denied Petitioner’s request to represent himself
at trial.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an unpublished
Opinion. Id.
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Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
His application raised the same three claims that he presented to the Michigan Court of
Appeals, but it also added several additional claims:
I. Trial counsel was ineffective in the presentation of Petitioner’s trial
defense.
II. There was insufficient evidence of penetration to support Petitioner’s
criminal sexual conduct conviction.
III. The prosecutor withheld exulpatory DNA evidence.
IV. Petitioner was illegally arrested.
V. The prosecutor allowed false testimony to be admitted at trial.
VI. Petitioner’s consent to DNA testing was invalid.
The Michigan Supreme Court denied the application for leave to appeal by form
order. People v. Williams, 480 Mich. 957 (2007) (table).
Petitioner then returned to the trial court and filed a motion for relief from judgment.
The motion raised the following claims:
I. Ineffective assistance of counsel
A. Counsel failed to meet with Petitioner until the day before trial.
B. Counsel failed to obtain an independent DNA expert.
C. Counsel failed to conduct sufficient discovery and obtain police
reports, DNA lab reports, and warrants and returns.
D. Counsel failed to cross-examine prosecution witness Chuney.
II. The trial court erroneously admitted evidence of the prior rape.
III. There was insufficient evidence of penetration presented at trial to
support Petitioner’s criminal sexual conduct conviction.
IV. The prosecutor committed misconduct at trial.
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V. Petitioner’s arrest was illegal.
VI. Petitioner’s Fourth Amendment rights were violated when the police used
fraudulent means to obtain a DNA sample.
The trial court denied the motion for relief from judgment in an opinion and order
dated March 24, 2009, on the grounds that his claims of ineffective assistance of counsel
were without merit. Petitioner then filed an application for leave to appeal in the Michigan
Court of Appeals that raised the same claims. The application was denied because
Petitioner “failed to meet the burden of establishing entitlement to relief under Michigan
Court Rule 6.508(D). People v. Williams, No. 292009 (Mich. Ct. App. September 24,
2009). Petitioner’s subsequent appeal to the Michigan Supreme Court was denied on the
same grounds. People v. Williams, No. 139987 (Mich. Sup. Ct. May 25, 2010).
Petitioner then filed the present habeas petition, raising the same six claims he
presented to the state courts in his motion for relief from judgment and subsequent appeal.
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 the claim–
(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 proceeding.

4

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.
The Supreme Court has explained that "[A] federal court's collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court
decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862
(2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537
U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists could disagree' on the
correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
emphasized "that even a strong case for relief does not mean the state court's contrary
conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or
theories supported or...could have supported, the state court's decision; and then it must
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ask whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision" of the Supreme Court. Id.
"[I]f this standard is difficult to meet, that is because it was meant to be." Harrington,
131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that have previously been rejected in
the state courts, it preserves the authority for a federal court to grant habeas relief only "in
cases where there is no possibility fairminded jurists could disagree that the state court's
decision conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d)
reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state
criminal justice systems,' not a substitute for ordinary error correction through appeal." Id.
(citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in
judgment)). Thus, a "readiness to attribute error [to a state court] is inconsistent with the
presumption that state courts know and follow the law." Woodford, 537 U.S. at 24.
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 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, 131 S. Ct. at 786-87.
Discussion
A. Procedural Default
Petitioner’s first claim is comprised of four separate allegations of ineffective
assistance of counsel. The first allegation–counsel’s failure to meet with Petitioner until the
day before trial–was presented to the state courts on direct appeal. The last three
allegations of ineffective assistance of counsel, however, were raised in Petitioner’s motion
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for relief from judgment and subsequent appeal.

Similarly, Petitioner’s fourth

claim–asserting prosecutorial misconduct–was only presented to the state courts in
Petitioner’s motion for relief from judgment. Respondent asserts that the three allegations
of ineffective assistance of counsel and the prosecutorial misconduct claim are procedurally
defaulted under Michigan Court Rule 6.508(D)(3) because the trial court relied on that court
rule in denying Petitioner relief.1
When the state courts find that review of a claim is barred because the defendant
failed to follow a state procedural rule that is independent of federal law and adequate to
support the judgment, federal habeas review also "is barred unless the [petitioner] can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Michigan Court Rule 6.508(D)(3) provides that a Michigan court may not grant relief
to a defendant if the motion for relief from judgment alleges grounds for relief which could
have been raised on direct appeal, absent a showing of good cause for the failure to raise
such grounds previously and actual prejudice resulting therefrom. In such a case, "actual
prejudice" means that "but for the alleged error, the defendant would have had a
reasonably likely chance of acquittal." MICH. CT. R. 6.508(D)(3)(b)(i). In the present case,
the Michigan Court of Appeals rejected Petitioner's post-conviction appeal on the ground
that Petitioner failed to meet his burden of establishing entitlement to relief under Rule

1

Surprisingly, Petitioner’s third, fifth, and sixth claims were also exhausted in the state
courts during Petitioner’s post-conviction proceeding. Respondent, however, does not
contend that these claims are defaulted. See Answer, at 6.
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6.508(D). Petitioner's application for leave to appeal that decision was rejected by the
Michigan Supreme Court with citation to the same rule. The United States Court of
Appeals for the Sixth Circuit has held that the form order used by the Michigan Supreme
Court to deny leave to appeal in this case is unexplained because its citation to Rule
6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the
merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must "look through" the unexplained order of the
Michigan Supreme Court to the state trial court's decision to determine the basis for the
denial of post-conviction relief.
In considering and denying Petitioner's Motion for Relief From Judgment, the Wayne
County Circuit Court judge, after reciting the "cause and prejudice" standard under Rule
6.508(D)(3), found that Petitioner had failed to satisfy the "cause" requirement because
Petitioner had failed to demonstrate that his appellate counsel was ineffective for failing to
raise his new claims during his direct appeal. In making this determination that counsel was
not ineffective, the trial court found that the underlying ineffective assistance of trial counsel
claim was not meritorious. By addressing the prejudice of an ineffective assistance of
counsel claim in this manner, however, a court does not bind itself into ruling on the claim's
underlying merits. See Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001). Accordingly, the
manner in which the state trial court conducted its anlysis, though it resembled a merits
review, still constituted a procedural default. Davie v. Mitchell, 547 F.3d 297, 313 (6th Cir.
2008) ("Although the determination of whether appellate counsel was ineffective for failing
to raise a substantive claim may, in some cases, involve an inquiry into the merits of the
underlying substantive claim, the fact remains that the two claims are 'analytically distinct'
8

for purposes of the exhaustion and procedural default analysis in habeas review."); Lordi
v. Ishee, 384 F.3d 189, 195 (6th Cir. 2004).
Because the trial court judge denied Petitioner post-conviction relief based on the
procedural grounds stated in Michigan Court Rule 6.508(D)(3), Petitioner's post-conviction
claims are procedurally defaulted. See Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir.
2007); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005).
With respect to his post-conviction claims, Petitioner alleges ineffective assistance
of appellate counsel as cause to excuse his procedural default. Petitioner has not shown
that appellate counsel was ineffective. It is well-established that a criminal defendant does
not have a constitutional right to have appellate counsel raise every non-frivolous issue on
appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States Supreme Court
has explained:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every 'colorable' claim suggested by a
client would disserve the . . . goal of vigorous and effective advocacy . . . .
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 463 U.S. at 754.
Moreover, "a brief that raises every colorable issue runs the risk of burying good
arguments—those that, in the words of the great advocate John W. Davis, 'go for the
jugular,'—in a verbal mound made up of strong and weak contentions." Jones, 463 U.S.
at 753 (citations omitted).
Strategic and tactical choices regarding which issues to pursue on appeal are
"properly left to the sound professional judgment of counsel." United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990). In fact, "the hallmark of effective appellate advocacy" is the
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"process of 'winnowing out weaker arguments on appeal and focusing on' those more likely
to prevail." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751-52).
"Generally, only when ignored issues are clearly stronger than those presented will the
presumption of effective assistance of appellate counsel be overcome." Monzo v. Edwards,
281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient performance and
prejudice a defendant by omitting a "dead-bang winner," which is defined as an issue which
was obvious from the trial record and would have resulted in a reversal on appeal. See
Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003) (citing Smith, 477 U.S. at
536).
Petitioner has failed to show that appellate counsel's performance fell outside the
wide-range of professionally competent assistance by omitting the claims that he raised for
the first time in his post-conviction motion for relief from judgment. Appellate counsel filed
an appellate brief, raising what he believed to be the strongest of Petitioner's arguments,
including claims that still form Petitioner's lead issues in the present case. It was a tactical
decision on the part of appellate counsel as to which issues to raise on direct appeal.
Petitioner has not shown that appellate counsel's strategy in presenting those claims and
not raising other claims was deficient or unreasonable.
Petitioner has failed to show cause to excuse his default of the claims that he raised
for the first time on state post-conviction review. Because he has not demonstrated any
cause for his procedural default, it is unnecessary for the Court to reach the prejudice
issue. Smith, 477 U.S. at 533. In any event, it is clear that Petitioner cannot show
prejudice.

Petitioner claims that his counsel was ineffective for failing to hire an

independent expert on DNA evidence and failed to conduct adequate pretrial discovery.
10

However, Petitioner conceded that the genetic material discovered in the victim was his.
His defense was that he had a consensual sexual relationship with the victim’s mother, and
that she retained his semen and planted it to frame him. The jury heard and rejected this
defense. Moreover, Petitioner proffered no evidence to the state courts or to this court
indicating that an expert would have testified in support of his new defense that the DNA
testing was inaccurate. With respect to counsel’s alleged failure to cross examine Officer
Cheney, Petitioner has failed to show how cross examination of this witness would have
benefitted his defense.
Additionally, Petitioner has not presented any new reliable evidence to support any
assertion of innocence which would allow this Court to consider these claims as grounds
for habeas review, in spite of the procedural default. Because he has not presented any
new reliable evidence that he is innocent of these crimes, a miscarriage of justice will not
occur if the Court declines to review his procedurally-defaulted claims on the merits. See
Johnson v. Smith, 219 F. Supp. 2d 871, 882 (E.D. Mich. 2002) (citing Schlup v. Delo, 513
U.S. 298 (1995)). Thus, Petitioner is not entitled to habeas relief on his procedurally
defaulted claims or his ineffective assistance of appellate counsel claim.

B. Ineffective Assistance of Counsel
Petitioner’s remaining ineffective assistance of counsel claim asserts that his trial
attorney failed to meet with him until one day before the trial began. This claim was
rejected on the merits by the Michigan Court of Appeals during Petitioner’s direct appeal.
The Sixth Amendment right to counsel and the right to effective assistance of
counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S.
11

668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show
that: (1) counsel's errors were so serious that "counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient
performance prejudiced the defense. Id. at 687. These two components are mixed
questions of law and fact. Id. at 698. Further, "[t]here is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one." Id. at 697. If "it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed." Id. With respect to the performance prong of the Strickland test, a strong
presumption exists that counsel's behavior lies within the wide range of reasonable
professional assistance. See id. at 689; see also O'Hara v. Wigginton, 24 F.3d 823, 828
(6th Cir. 1994). "[D]efendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland,
466 U.S. at 689 (citation omitted). "[T]he court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Id. at 690. With respect to the prejudice
prong, the reviewing court must determine, based on the totality of the evidence before the
factfinder, "whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt." Id. at 695.
As the Supreme Court has recently explained, Strickland establishes a high burden
that is difficult to meet, made more so when the deference required by § 2254(d)(1) is
applied to review a state court's application of Strickland:
"Surmounting Strickland's high bar is never an easy task." Padilla v.
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Kentucky, 559 U.S. , , 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An
ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest "intrusive post-trial
inquiry" threaten the integrity of the very adversary process the right to
counsel is meant to serve. Strickland, 466 U.S., at 689-690. Even under de
novo review, the standard for judging counsel's representation is a most
deferential one. Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and interacted
with the client, with opposing counsel, and with the judge. It is "all too
tempting" to "second-guess counsel's assistance after conviction or adverse
sentence." Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685,
702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The question is
whether an attorney's representation amounted to incompetence under
"prevailing professional norms," not whether it deviated from best practices
or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both "highly deferential," id., at 689; Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997), and when the two apply in tandem,
review is "doubly" so, Knowles, 556 U.S., at —. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556 U.S.,
at —, 129 S.Ct. at 1420 . Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel's actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland's
deferential standard.
Richter, 131 S. Ct. at 788.
Petitioner claims that by failing to meet with him until the day before trial, he was
denied counsel during a critical phase of the proceedings, and he therefore does not need
to show prejudice. This argument invokes the presumed prejudice standard of United
States v. Cronic, 466 U.S. 648 (1984), pursuant to which a defendant need not establish
prejudice on his ineffective assistance of counsel claims under the second prong of the
Strickland test. The Supreme Court has recently explained, however, that for an ineffective
13

assistance claim to come within this limited exception to Strickland, "the attorney's failure
must be complete." Bell v. Cone, 535 U.S. 685, 697 (2002). The distinction is between
"bad lawyering" and "no lawyering," Woodard v. Collins, 898 F.2d 1027, 1028 (5th Cir.
1990); see also, Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002), and the difference
is not one of degree, but one of kind, see Bell, 535 U.S. at 697.
Here, Petitioner has not demonstrated that counsel completely failed to represent
him during the pretrial phase. Petitioner was represented by an attorney at the preliminary
examination. Counsel also appeared at two pre-trial hearings where a motion to admit the
other bad acts evidence was argued. Accordingly, the record belies Petitioner’s claim that
his attorney did not meet with him prior to trial and that Petitioner was therefore denied
counsel altogether at a critical stage of the proceedings. Rather, Petitioner's claim is
amenable to the ordinary Strickland framework. In short, "[t]he aspects of counsel's
performance challenged by [petitioner] . . . are plainly of the same ilk as other specific
attorney errors [the Supreme Court] ha[s] held subject to Strickland's performance and
prejudice components." Bell, 535 U.S. at 697-98.
It is clear from the record that Petitioner’s trial counsel was adequately prepared for
trial. A fair reading of the trial record shows that counsel was obviously well familiar with
the facts of the case and presented Petitioner’s defense in a reasonably effective manner
to the jury. There is no indication in the record that counsel was had not prepared
adequately for trial.
Nevertheless, even assuming arguendo the truth of Petitioner's allegation
concerning the lack of contact he had with his attorney prior to trial, he cannot establish his
entitlement to habeas relief on this claim."[B]revity of time spent in consultation, without
14

more, does not establish that counsel was ineffective." Easter v. Estelle, 609 F.2d 756, 759
(5th Cir. 1980). Nor is there any "case establishing a minimum number of meetings
between counsel and client prior to trial necessary to prepare an attorney to provide
effective assistance of counsel." United States v. Olson, 846 F.2d 1103, 1108 (7th Cir.
1988) (internal quotation omitted). Absent specific allegations establishing both that the
time counsel spent with Petitioner was inadequate and that Petitioner was prejudiced by
counsel's inadequate consultation, Petitioner is not entitled to habeas relief. See Neal v.
Acevedo, 114 F.3d 803, 806 (8th Cir. 1997); United States v. Soto-Alvarez, 958 F.2d 473,
478 (1st Cir. 1992); United States v. Mealy, 851 F.2d 890, 908 (7th Cir. 1988). Petitioner
has made no such specific allegations, nor has he show how he was prejudiced.
Accordingly, Petitioner’s preserved ineffective assistance of counsel claim is without merit.

B. Admission of Evidence of Prior Rape
Petitioner’s second claim asserts that the admission of evidence concerning the prior
rape rendered his trial fundamentally unfair.
A woman testified at Petitioner’s trial that in 2001, when she was seventeen years
old, a man broke into her bedroom while she was sleeping a forcibly raped her. She was
unable to identify her attacker. Further evidence indicated that genetic material found on
the victim matched Petitioner’s DNA profile. Petitioner’s defense was that this earlier
encounter was consensual. The trial court allowed the evidence of the prior act to be
admitted under Michigan Rule of Evidence 404(b). It found that the two crimes were similar
enough in nature to be relevant to undermine Petitioner’s defense that he was framed by
the mother of the second victim. The Michigan Court of Appeals agreed with the ruling.
15

The state court's decision is neither contrary to Supreme Court precedent nor an
unreasonable application of it. The United States Supreme Court declined to hold that
similar "other acts" evidence is so extremely unfair that its admission violates fundamental
conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). While
the Supreme Court addressed whether other bad acts testimony is permissible under the
Federal Rules of Evidence, see Old Chief v. United States, 519 U.S. 172 (1997);
Huddleston v. United States, 485 U.S. 681 (1988), it has not explicitly addressed the issue
in constitutional terms. Thus, "[t]here is no clearly established Supreme Court precedent
which holds that a state violates due process by permitting propensity evidence in the form
of other bad acts evidence." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Consequently, there is no Supreme Court precedent that the state court decisions could
be deemed "contrary to" under 28 U.S.C. § 2254(d)(1). Id. at 513; see also Adams v.
Smith, 280 F. Supp. 2d 704, 716 (E.D. Mich. 2003). Petitioner has failed to state a claim
upon which habeas relief may be granted on this issue.

C. Sufficiency of the Evidence
Petitioner’s next claim asserts that insufficient evidence was offered at trial to show
that he sexually penetrated the victim. The Michigan Court of Appeals reasonably rejected
this claim during Petitioner’s appeal of right.
Sufficient evidence supports a conviction if "after viewing the evidence in light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis added). In evaluating a sufficiency of the evidence claim, the court views
16

both direct evidence and circumstantial evidence in the light most favorable to the
prosecution, drawing all available inferences and resolving all issues of credibility in favor
of the factfinder's verdict. United States v. Rayborn, 495 F.3d 328, 337-38 (6th Cir. 2007).
Based on the record in this case, the court concludes that the Michigan Court of Appeals
properly found that petitioner's conviction was supported by sufficient evidence. More
importantly, a federal habeas court may not overturn a state court decision which rejects
a sufficiency of the evidence claim, simply because the federal court disagrees with the
state court's resolution of that claim. Instead, a federal court may grant habeas relief only
if the state court decision was an objectively unreasonable application of the Jackson
standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). "Because rational people can
sometimes disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold." Id. Indeed, for a federal habeas court reviewing a state court
conviction, "the only question under Jackson is whether that finding was so insupportable
as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060,
2065 (2012).
Under Michigan law, first-degree criminal sexual conduct is committed when there
is an intrusion into the genital or anal opening of another person, no matter how slight,
under one of the enumerated circumstances in the first-degree criminal sexual conduct
statute. See Farley v. Lafler, 193 Fed. Appx. 543, 548 (6th Cir. 2006). In the present case,
the evidence, when viewed in a light most favorable to the prosecution, was sufficient to
allow a rational trier of fact to conclude beyond a reasonable doubt that Petitioner sexually
penetrated the victim. The victim testified that the perpetrator put his penis into her vagina
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and that it hurt. That testimony alone is enough to satisfy the “bare rationality” standard.
To the extent that petitioner argues that the evidence was insufficient because the
victim's testimony was not believable, he is not be entitled to relief. Attacks on witness
credibility are simply challenges to the quality of the prosecution's evidence, and not to the
sufficiency of the evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002). An
assessment of the credibility of witnesses is therefore generally beyond the scope of
federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F. 3d 265, 286
(6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a
petitioner's claim. Id. To the extent that petitioner's insufficiency of evidence claim rests on
an allegation of the victim's credibility, which is the province of the finder of fact, he is not
entitled to habeas relief on this claim. See Tyler v. Mitchell, 416 F. 3d 500, 505 (6th Cir.
2005).
D. Fourth Amendment Claims
Petitioner’s fifth claim asserts that he was illegally arrested when the police made
a non-consensual entry into his wife’s home. His sixth claim asserts that the police
unlawfully detained him and used fraudulent documents to obtain his DNA sample. Both
these claims are based on perceived violations of Petitioner’s Fourth Amendment rights.
A federal court will not address a Fourth-Amendment claim on habeas review if the
petitioner had a full and fair opportunity to litigate the claim in state court and the
presentation of the claim was not thwarted by any failure of the state's corrective
processes. See Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform two
distinct inquiries when determining whether a petitioner may raise a Fourth-Amendment
claim in a habeas action. "Initially, [the court] must determine whether the state procedural
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mechanism, in the abstract, presents the opportunity to raise a [F]ourth[-A]mendment
claim. Second, the court must determine whether presentation of the claim was in fact
frustrated because of a failure of that mechanism." Riley v. Gray, 674 F.2d 522, 526 (6th
Cir. 1982) (citations omitted); see also Fulcher v. Logan Cnty. Cir. Ct., 459 F. App'x 516,
521 (6th Cir. 2012) (same).
"Michigan has a procedural mechanism which presents an adequate opportunity for
a criminal defendant to raise a Fourth[-]Amendment claim." Robinson v. Jackson, 366 F.
Supp. 2d 524, 527 (E.D. Mich. 2005). This procedural mechanism is a motion to suppress,
ordinarily filed before trial. See People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357, 358-59
(1965) (describing the availability of a pre-trial motion to suppress); see also People v.
Harris, 95 Mich. App. 507, 291 N.W.2d 97, 99 (1980) (analyzing the legality of a
warrantless search, seizure, and arrest even though raised for the first time on appeal).
Consequently, Petitioner is entitled to relief on this issue only if he establishes that he was
prevented from litigating the Fourth-Amendment issue by a failure of Michigan's procedural
mechanism. Petitioner had a full and fair opportunity to present to the state courts his
Fourth-Amendment claim, however, and he does not argue that there was any failure in the
system that prevented him from raising his Fourth Amendment claims in the state courts.
His fifth and sixth claims are therefore not cognizable on habeas review pursuant to Stone
v. Powell.

Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
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appealability should be granted. A certificate should issue if Petitioner has demonstrated
a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To
warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong."
Slack v. McDaniel, 529 U.S. 473 (2000). The Court finds that reasonable jurists could not
conclude that this Court's dismissal of Petitioner's claims was debatable or wrong.
Therefore, the Court will deny Petitioner a certificate of appealability. The Court will also
deny Petitioner permission to proceed on appeal in forma pauperis because any appeal of
this decision would be frivolous.
Conclusion
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas
corpus. The Court further DENIES a certificate of appealability and permission to proceed
on appeal in forma pauperis.
SO ORDERED.

s/Marianne O. Battani
Honorable Marianne O. Battani
United States District Judge
Dated: November 20, 2012

CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon the
Petitioner via ordinary U.S. Mail, and Counsel for the Respondent via the Court’s ECF
Filing System.
s/Bernadette M. Thebolt
Case Manager
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