Porter v. Wolfenbarger

Filing 12

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Issuing a Certificate of Appealability, and Granting an Application for Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES PORTER,
Petitioner,

Case Number: 2:11-cv-11871

v.

Honorable Arthur J. Tarnow

HUGH WOLFENBARGER,
Respondent.
______________________________________/
OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS, ISSUING A
CERTIFICATE OF APPEALABILITY, AND GRANTING AN APPLICATION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I. INTRODUCTION
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Charles Porter, a Michigan
state prisoner currently incarcerated by the Michigan Department of Corrections, filed this pro se
Habeas Petition challenging his 2008 conviction for second-degree criminal sexual conduct,
following a jury trial in the Kent County Circuit Court. Petitioner was sentenced as a habitual
offender, fourth offense, to ten to fifty years in prison. In his petition, he raises the following
claim: whether the prosecutor used peremptory challenges for racially discriminatory reasons in
violation of the United States Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79
(1986), and the Equal Protection Clause of the Fourteenth Amendment.
For the reasons set forth below, the Court will deny the Petition. The Court will issue
Petitioner a Certificate of Appealability and grant him an Application for Leave to Proceed In
Forma Pauperis On Appeal.

II. BACKGROUND
A. Substantive Facts
Petitioner’s troubles in this case arise because of a sexual assault which occurred on May
3, 2006, in Grand Rapids, Michigan. The charges arose when the Grand Rapids Police
Department received a complaint from A.T.,1 that Petitioner had sexually assaulted her.
Petitioner denied the assault and said that he had consensual sex with A.T. and her friend. In
2006, he was tried and convicted for this offense but the Michigan Court of Appeals reversed
and remanded for a new trial on the basis that the prosecutor improperly used impeachment
evidence in regard to a particular witness as substantive evidence. The Court of Appeals
concluded that “the improper use of [the witness’s] statement as substantive evidence tipped the
balance in favor of conviction and, therefore, warrants a new trial.” People v. Porter, No.
274574, 2008 WL 239610, at * 2 (Mich. Ct. App. Jan. 29, 2008) (unpublished). Petitioner was
given a new trial, and it is from that trial that Petitioner now seeks habeas relief.
Petitioner’s second trial began on June 24, 2008, and concluded on June 27, 2008. During
jury selection, Petitioner raised a Batson claim, alleging that the prosecutor used peremptory
challenges against two African-American jurors in a racially discriminatory manner.
The first juror in question was asked if he knew anyone that had been sexually assaulted,
to which he responded yes but that he was not sure if he believed the person. He also revealed
that he had been a defendant in a civil lawsuit and was not satisfied with the resolution of the
case and felt that he was not treated fairly by the court system. The prosecutor used a
peremptory challenge to dismiss him.

1

Complainant’s initials are used to protect her identity.
2

The second juror in question revealed she had been the victim of a mugging but that the
perpetrator was never caught. She said she had difficulty with the concept of beyond a
reasonable doubt. She also told the prosecutor that she had worked as a nurse at a juvenile
facility and encountered a lot of young ladies there who said they had been molested and used
that as the cause for committing criminal activities. She felt that experience would raise doubts
in her mind about things she might hear in court. She also said her niece had been a victim of a
sexual assault and had been given “the runaround” and was dissatisfied with the result. The
prosecutor also exercised a peremptory challenge to excuse this juror.
In accordance with Batson, the trial court then gave defense counsel an opportunity to
argue that the prosecutor’s explanations were merely pretext. In regards to the first juror’s past
experiences with the court system, defense counsel stated that the juror’s “incident was a civil
matter in a civil lawsuit.” It was defense counsel’s position that the juror’s opinion of “not being
satisfied with what happened to him in a civil matter [was] inconsequential to him sitting on a
criminal jury.” Trial Tr. vol. II, 140 June 25, 2008. Defense counsel further argued that the
juror indicated that he would be able to sit as a fair and impartial juror. Trial Tr. vol. II, 140,
June 25, 2008. Regarding the second juror, defense counsel argued that the juror indicated that
she would be willing to follow the jury instructions and would be able to judge the credibility of
witnesses’ testimony at trial. Trial Tr. vol. II, 140 June 25, 2008.
In response to those arguments, the trial court stated that the prosecutor was entitled to a
reasonable concern that the first juror’s dissatisfaction with the court system might “bleed over”
to the trial and that the juror would adopt an essentially hostile attitude to his duties as a juror.
Trial Tr. vol. II, 141 June 25, 2008.

3

As to the second excused juror, the trial court stated:
I was quite fond of [her] and I sort of wished that she could have stayed on the
jury. She was an intelligent and engaging woman who was obviously paying
attention and was well attuned to what was going on in the courtroom. On the
other hand I felt that she did have a number of issues that might even have risen to
a level of a challenge for cause. She did indicate that she would have a hard time
convicting on the testimony of one witness and that this would be a concern to
her. She also seemed to have been concerned and I wasn’t entirely sure why,
based on her contact with the juvenile facility and the people out there. I would
have thought that that would have posed some problems for the defense more than
the prosecution, although she did seem to think it would give her pause in
accepting an allegation of sexual abuse. It never was developed fully, but the
implication was that she must have dealt with some people at the juvenile facility
who had made unwarranted allegations of sexual assault. At least that’s what I
deduced from it, she didn’t say it in so many words.
Her case, I thought, was a borderline challengeable for cause situation and
again I think there’s more than ample basis for a peremptory challenge.
Trial Tr. vol. II, 141-42 June 25, 2008.
After the evidence was presented, the jury found Petitioner guilty as charged. The trial
court sentenced him to the prison terms described above.
B. Procedural Facts
Following his sentencing, Petitioner filed a Direct Appeal with the Michigan Court of
Appeals, alleging that the prosecutor exercised her peremptory challenges in violation of Batson
and the Equal Protection Clause. On December 1, 2009, the Court of Appeals affirmed his
conviction. Porter, 2009 WL 4342673, at *2.
In addressing Petitioner’s Batson claim, the Michigan Court of Appeals set forth the
relevant facts, which are presumed correct on habeas review. Monroe v. Smith, 197 F.Supp.2d
753, 758 (E.D. Mich. 2001), aff’d. 41 F.App’x 730 (6th Cir. 2002). The Court of Appeals stated:
During voir dire, the prosecutor exercised two peremptory challenges to
dismiss the only two black members of the jury array. Defendant, who is also
4

black, objected and raised a Batson challenge, arguing that the prosecutor
dismissed the two black venirepersons solely on the basis of race. The prosecutor
offered a race neutral explanation for dismissing each of the potential jurors, and
the trial court found the explanations did not amount to pretext. Consequently, it
denied the defendant’s Batson challenge. [].
***

In this case, we need not address whether the trial court improperly failed
to apply the first Batson factor because the trial court did not clearly err in
ultimately concluding that the prosecutor’s race-neutral explanations for
dismissing the jurors was not pretext. The prosecutor explained that she
dismissed one juror because of his dissatisfaction with the outcome of a civil case
in which he was involved, because of his belief that he was treated unfairly, and
because he indicated that he may have a negative opinion of the court system in
general depending on the case.
With regard to the second juror, the prosecutor indicated that she excused
the potential juror for several reasons, including 1) that juror’s indication that her
past experience working with juveniles at a detention center, where many of the
young people made false accusations of sexual abuse, would cause her to discredit
the testimony of an alleged victim of sexual assault; 2) the juror’s statement that
she was a good decision maker except for certain things, such as painting and
interior decorating, combined with her indication that her husband would not
agree she was a good decision maker; 3) the juror’s assertion that she was
displeased with authorities’ response to alleged sexual abuse involving her niece;
and 4) the juror’s assertion that she would have a problem with the trial court’s
instruction that a conviction may be based on the testimony of a single witness.
In sum, the trial court did not err in concluding that the prosecution’s
proffered explanation for dismissing these jurors did not amount to pretext, and in
ultimately finding that defendant failed to show purposeful discrimination.
People v. Porter, No. 287141, 2009 WL 4342673, at *1 (Mich. Ct. App. Dec. 1, 2009).
The Court of Appeals reasoned that the prosecutor’s reasons for dismissing the first juror
“were unrelated to the juror’s race, and the prosecution had legitimate concern that this juror
may have held animosity toward the court system in general that [could] have interfered with his
duty to serve as a fair and impartial juror.” Porter, 2009 WL 4342673, at *1. As to the second

5

juror, the court held that the prosecutor’s reasons for exercising a peremptory challenge were not
“related to the juror’s race, and they gave the prosecutor legitimate concern that the juror may
have had a predisposed bias against the prosecution in this sexual assault case.” Id. The Court
of Appeals then concluded that “the trial court did not err in concluding that the prosecutor’s
proffered explanation for dismissing these jurors did not amount to pretext, and in ultimately
finding that defendant failed to show purposeful discrimination.” Id. at *2.
Subsequently, Petitioner filed an Application for Leave to Appeal the Court of Appeals’
decision with the Michigan Supreme Court, raising a Batson claim. The Michigan Supreme
Court denied his Application. People v. Porter, 486 Mich. 903, 780 N.W.2d 801 (2010).
Petitioner timely filed the pending Habeas Petition, raising the Batson claim raised in
both state appellate courts.
III. STANDARD OF REVIEW
28 U.S.C. § 2254(d) bars habeas relief for claims adjudicated on the merits in state
court unless the state-court adjudication runs contrary to clearly established Supreme
Court law, or if it results from an unreasonable application of that law or an unreasonable
determination of the facts.
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

6

writ simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 410-11.
Recently, in Harrington v. Richter, U.S., --- U.S. ---, 131 S.Ct. 770 (2011), the United
States Supreme Court stated: “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, --- U.S. at ---, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
A federal habeas court must also presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). Federal-habeas review is “limited to the record that
was before the state court.” Cullen v. Pinholster, --- U.S. ---, ---, 131 S.Ct. 1388, 1398 (2011).
A petitioner may rebut this presumption only with clear and convincing evidence. Warren v.
Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. DISCUSSION
A. Batson Claim
In his single habeas claim, Petitioner, an African-America, alleges that his right to equal
protection under the United States Constitution was violated when the prosecutor exercised two
peremptory challenges during voir dire to excuse the only two African-American jurors on the
venire. Petitioner argues that the prosecutor’s conduct was in violation of the Supreme Court’s
holding in Batson, and that the trial court erred in finding that the prosecutor’s proffered
explanation for exercising the peremptory challenges did not amount to pretext.

7

The Equal Protection Clause of the Fourteenth Amendment commands that “no state
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Supreme Court has long interpreted the Equal Protection Clause as
prohibiting a state from trying a defendant before a jury from which members of his race have
been purposefully excluded. See, e.g., United States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999)
(citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879)). That principle was
extended by the Supreme Court in Batson, which held that a prosecutor’s exercise of peremptory
strikes on the basis of race violates equal protection. Batson, 476 U.S. at 79.
1. Prima Facie Case Under Batson
The Supreme Court explained in Batson that the prohibition on racially-motivated
peremptory strikes seeks to protect the rights of the litigants, the venire, and the “entire
community.” Batson, 476 U.S. at 86-88 (stating that the “harm from discriminatory jury
selection extends beyond that inflicted on the defendant and the excluded juror . . . [by]
undermin[ing] public confidence in the fairness of our system of justice”); see also Smith v.
Texas, 311 U.S. 128, 130 (1940) (“For racial discrimination to result in the exclusion from jury
service of otherwise qualified groups not only violates our Constitution and the laws enacted
under it but is at war with our basic concepts of a democratic society and a representative
government.” (internal footnote omitted)). The Supreme Court further explained in Miller-El v.
Dretke, 545 U.S. 231 (2005) that “[w]hen the government’s choice of jurors is tainted with racial
bias, that ‘overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed the
court to adhere to the law throughout the trial.’” Miller-El, 545 U.S. at 235 (quoting Powers v.
Ohio, 499 U.S. 400, 412 (1991)).

8

In Batson, the Supreme Court “outlined a three-step process for evaluating claims that a
prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause.”
Batson, 476 U.S. at 96-98; see also Hernandez v. New York, 500 U.S. 352, 358 (1991) (citing
Batson, 476 U.S. at 96-98 and outlining the three-step process); Braxton v. Gansheimer, 561
F.3d 453, 458 (6th Cir. 2009) (same). “First, the Defendant must make out a prima facie case
that the prosecutor has exercised peremptory challenges on the basis of race.” Batson, 476 U.S.
at 96-97. Petitioner is required to establish the following:
To establish such a case, the defendant must first show that he is a member of a
cognizable racial group, and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant’s race. Second,
the defendant can rely on the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection practice that permits “those to
discriminate who are of a mind to discriminate.” Finally, the defendant must
show that these facts and other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from the petit jury on
account of their race. This combination of factors in the empaneling of the petit
jury . . . raises the necessary inference of purposeful discrimination.
Id. at 96 (internal citations omitted); see also Johnson v. California, 545 U.S. 162, 168 (2005)
(quoting Batson, 476 U.S. at 94).
In this case, the Court finds that Petitioner is able to establish the prima facie case of
racial discrimination during jury selection. First, Petitioner is an African American, a recognized
and cognizable racial group. Second, Petitioner is allowed to rely on the fact that peremptory
challenges are discriminatory in nature. The fact that the only two members of the venire that
were African American were excused due to the exercise of peremptory challenges raises an
inference that the peremptory challenges were used on the basis of race.

9

2. Prosecutor’s Explanations Were Facially Neutral
Second, if a defendant succeeds in making a prima facie showing that the prosecutor
exercised peremptory challenges on the basis of race, “the burden shifts to the State to come
forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97. “The
prosecutor therefore must articulate a neutral explanation related to the particular case to be
tried.” Id. at 98 (footnote omitted). “[T]he prosecutor must give a ‘clear and reasonably
specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. at 98 n.20
(citing Texas Dep’t Of Comty. Affairs v. Burdine, 450 U.S. 248, 258 (1981)). “In evaluating the
race neutrality of an attorney’s explanation, a court must determine whether, assuming the
proffered reasons for the challenges are true, the challenges violate the Equal Protection Clause
as a matter of law.” Hernandez, 500 U.S. at 359. “The second step of [Batson] does not demand
an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767-68
(1995). “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.” Id. at 768 (citing Hernandez, 500 U.S., at 360).
In this case, the prosecutor stated that she excused one of the jurors because she was
concerned about that juror’s previous experience with the court. Specifically, the prosecutor
stated that she feared that the juror’s unhappiness with the outcome of a past civil matter could
potentially bleed over into the current proceedings and affect how he would perform as a juror.
As to the second juror excused, the prosecutor stated that she was concerned with the
juror’s hesitancy to convict based upon the testimony of one person, the juror’s past experiences
with juveniles that falsely alleged sexual assault, her belief that her family would not consider

10

her a good decision-maker, and her displeasure with the outcome of a previous sexual-assault
investigation involving her niece.
“A neutral explanation in the context of the [Batson analysis] means an explanation
based on something other than the race of the juror. . . . Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”
Hernandez, 500 U.S. at 360. Each of the explanations offered to support the prosecutor’s use of
peremptory challenges contains nothing that, on their face, would indicate any sort of racial bias
or motive. Because there was no discriminatory intent inherent in the explanations, they are
considered to be valid, and the burden shifts back to Petitioner to prove that the prosecutor’s
explanations were pretext for purposeful discrimination.
3. Petitioner Has Failed to Show Pretext
Finally, Petitioner needs to “demonstrate that the purported explanation is merely a
pretext for racial motivation.” McCurdy v. Montgomery Cnty., Ohio, 240 F.3d 512, 521 (6th Cir.
2001) (citation omitted). “The trial court then will have the duty to determine if the defendant
has established purposeful discrimination.” Batson, 476 U.S. at 98. “Since the trial judge’s
findings in the context under consideration here largely will turn on evaluation of credibility, a
reviewing court ordinarily should give those findings great deference.” Id. at 98 n.21.
[T]he decisive question will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed. There will seldom be much evidence
bearing on that issue, and the best evidence will often be the demeanor of the
attorney who exercises the challenge. As with the state of mind of a juror,
evaluation of the prosecutor’s state of mind based on demeanor and credibility
lies peculiarly within a trial judge’s province.
Hernandez, 500 U.S. at 365 (internal citations omitted)

11

Recently in Rice v. White, 660 F.3d 242 (6th Cir. 2011), the Sixth Circuit upheld this
District Court’s grant of a conditional writ of habeas corpus based upon a violation of Batson.
See Rice v. White, No. 2:06-CV-11610, 2010 WL 1347610 (E.D. Mich. Mar. 31, 2010) (Hood,
J.). In that case, defense counsel objected to the prosecutor’s use of peremptory challenges,
alleging that the prosecutor had excused members of the venire on the basis of race. The trial
court accepted the prosecutor’s race-neutral reasons for the challenges, and overruled the
objection.
Voir Dire continued after recess, and the prosecutor used three more peremptory
challenges to excuse African-American members of the venire. The prosecutor then offered
race-neutral explanations for the peremptory strikes. This time, however, the trial court seemed
hesitant to accept the prosecutor’s race-neutral explanations. Specifically, the trial court felt that
the reasons offered for two of the juror’s were not valid, but it was not willing to specifically
declare a violation of Batson. The trial court stated, “I really don’t want any problems with this
case, especially along these lines. I’m not satisfied with the prosecutor’s response as to [the]
potential juror[s]. . . . But from this point on let’s be very careful with jury selection.” Rice,
2010 WL 1347610, at *25 (citing to Tr. vol. III, 95-96.)
The Sixth Circuit, in addressing the claim, held that “[i]n light of the high degree of
deference given to the trial court’s credibility assessment, nothing in the record suggests that the
trial court clearly erred in finding purposeful discrimination in the striking of veniremembers [].
We therefore conclude . . . that a Batson violation occurred during jury selection.” Rice, 660
F.3d at 259.

12

In comparing this case with Rice, unlike the facts involved in Rice, there is nothing in the
record in this case which would indicate that the trial court rejected the prosecutor’s race-neutral
explanations for her peremptory strikes. Here, defense counsel argued that he believed that the
prosecutor’s explanation was insufficient to satisfy the second prong of Batson with regard to
both jurors, but the trial court rejected the argument. Concerning the first juror, the trial court
believed that the prosecutor was entitled to a “reasonable concern” that the juror’s dissatisfaction
with prior judicial proceedings would cause a problem with his willingness to serve. As to the
second juror, because the trial court felt that the juror may have even actually been challenged
for cause, speaks to what he witnessed in the courtroom, and his impression of the prosecution’s
exercise of peremptory challenges. Those findings by the trial court are afforded great deference
on habeas review.
The Court therefore concludes that Petitioner has failed to present clear and convincing
evidence that would have a tendency to show that the state court’s factual findings were
unreasonable, or that Supreme Court precedent was applied unreasonably. Petitioner is not
entitled to habeas relief with respect to this claim.
B. Certificate of Appealability
Next, the Court must decide whether Petitioner is entitled to a certificate of appealability
(COA). Federal Rule of Appellate Procedure 22 provides that an Appeal may not proceed unless
a COA is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254
Proceedings requires a district court to “issue or deny a [COA] when it enters a final order
adverse to the applicant. . . . If the court issues a certificate, the court must state the specific

13

issue or issues that satisfy the showing required by § 2253(c)(2).” Rule 11, Rules Governing
Section 2254 Proceedings.
A COA may issue “only if the applicant made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must issue a COA that indicates 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 COA, “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. at 336 (2003) (internal quotes and citations omitted).
The Court issues a COA because reasonable jurists could debate whether the issue should
have been resolved differently or whether the claim deserves encouragement to proceed further.
This is especially true based on the importance of the Consitutional right involved.
V. CONCLUSION
For the reasons stated, the Court concludes that the Petitioner has not established that the
state court made an unreasonable determination of the facts in light of the evidence presented
and, therefore, he is not entitled to federal habeas relief on the claim contained in his Petition.
The Petition for Writ of Habeas Corpus is DENIED.

14

Accordingly, IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the Court issues Petitioner a COA. The Court will also
GRANT Petitioner an Application for Leave to Proceed In Forma Pauperis On Appeal.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: February 2, 2012
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on February 2, 2012, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

15