Cline v. Scutt

Filing 13

OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus filed by Stephen Cline, Granting in Part a Certificate of Appealability, and Granting Leave 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

STEPHEN HAROLD CLINE,
Petitioner,
v.

CASE NO. 11-CV-12262
HONORABLE MARIANNE O. BATTANI

DEBRA L. SCUTT,
Respondent.
_______________________________/
OPINION AND ORDER
DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS,
GRANTING IN PART A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Stephen Harold Cline has filed a pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s Huron
County convictions for kidnapping and vulnerable adult abuse. He claims that (1) his
trial attorney should have moved for a change of venue, (2) there was insufficient
evidence to support his convictions for vulnerable adult abuse, (3) he is entitled to resentencing because the trial court departed from the sentencing guidelines partly
because of his alleged future dangerousness, (4) the prosecutor deprived him of
counsel of choice by concealing and withholding a social security disability check, (5) a
police officer testified falsely or falsified a police incident report, and (6) he has
demonstrated “cause and prejudice” for not raising claims four and five on direct
appeal. Respondent Debra L. Scutt urges the Court through counsel to deny the
petition for lack of merit. The Court has determined from a review of the record that the

state court decisions on Petitioner’s claims were objectively reasonable. Therefore, the
habeas petition must be denied. A procedural history and analysis of Petitioner’s
claims follow.
I. BACKGROUND
Petitioner was charged in Huron County, Michigan with one count of kidnapping,
Mich. Comp. Laws § 750.349, and seventeen counts of first-degree vulnerable adult
abuse, Mich. Comp. Laws § 750.145n(1). The complainant was Petitioner’s wife,
who is completely blind and is a brittle, type I diabetic.1 [The complainant]
and [Petitioner] first met in January 2001 at the Commission for the Blind
training school in Kalamazoo, Michigan.2 They started a romantic
relationship at the end of January 2001, and they married on September
21, 2002.
After being hospitalized in April 2005, [the complainant] had trouble
speaking. She wondered if she had been deprived of oxygen or had
suffered a stroke. Shortly thereafter, while cleaning her and [Petitioner’s]
apartment, [the complainant] discovered ropes and a digital camera,
which, after asking a friend to examine it, she learned contained photos of
her hogtied, nude, and lying face down.3 [The complainant] also
discovered three videotapes, one of which depicted several incidences of
her being tied up or bound, either naked or scantily clad, with a bag over
her head, struggling to breathe. [Petitioner] appeared in some of the
scenes. [The complainant] did not recall making the videotape, and she
did not consent to it. During a police interview, [Petitioner] stated that,
except for one occasion, these activities were consensual and that he was

1

Type I diabetes mellitus is an insulin-dependent form of the disease.
Stedman’s Medical Dictionary (26th ed., 1995), p. 473. Brittle diabetes mellitus is
characterized by “marked fluctuations in blood glucose concentrations that are difficult
to control.” Id. at 472.
2

Defendant is legally blind because he has problems with peripheral and night
vision, but he can still read and drive a car.
3

[The complainant] also discovered other items in the apartment: a duffel bag
that contained plastic bags, rubber bands, and a sex toy; more ropes; a roll of plastic
wrap; and crates with short skirts, corsets, and nylons.
2

sexually aroused by them.
People v. Cline, 276 Mich. App. 634, 636; 741 N.W.2d 563, 565 (2007) (footnotes in
original) (alterations added).
There was additional evidence that Petitioner and the complainant talked on the
telephone after Petitioner’s arrest. During that conversation, the complainant asked
Petitioner why he did the things he did to her. Petitioner then admitted that what he did
was wrong, that he had an illness, and that he had done some things out of anger
toward the complainant. He wanted her to drop the charges against him.
Convicted felon Michael Ward testified that he was confined in Huron County Jail
facing charges of accosting a child for immoral purposes, indecent exposure, furnishing
alcohol to a minor, and malicious destruction of a building. In return for his truthful
testimony against Petitioner, he was hoping that the prosecution would consider a
reduction in these charges.
Ward testified that he became acquainted with Petitioner while the two of them
were incarcerated at the Huron County Jail. Petitioner told him that, when he was with
his wife, he was her primary caregiver and that he liked kinky sex. Petitioner explained
that, at times, he would overdose his wife on insulin to incapacitate her and render her
vulnerable. Sometimes, when she was in that condition, he would tie her up, put a bag
over her head to suffocate her, and have sex with her. Prior to April 11, 2005, he
experimented to determine how much insulin he could use to overdose her without
causing brain damage. On April 11, 2005, he gave her too much insulin and she had a
big reaction, which may have caused her to slur her speech.
The prosecutor’s theory was that Petitioner was the complainant’s caregiver and
3

that, between September 21, 2002, and April 14, 2005, he committed the crime of
kidnapping by secretly and forcibly confining the complainant. The prosecutor
maintained that Petitioner committed the crime of first-degree vulnerable adult abuse by
causing serious physical harm to his wife and by abusing her for his own sexual
satisfaction.
Petitioner did not testify or present any witnesses. His defense was that the
prosecutor did not prove the elements of the charged crimes by showing that he
secretly confined the complainant, that she was a vulnerable adult, and that he was her
caregiver.
On December 22, 2005, a Huron County Circuit Court jury found Petitioner guilty,
as charged, of one count of kidnapping and seventeen counts of first-degree vulnerable
adult abuse. On February 13, 2006, the trial court sentenced Petitioner to concurrent
terms of twenty-five to forty years in prison for the kidnapping and ten to fifteen years
for each count of vulnerable adult abuse.
In an appeal of right, Petitioner argued that (1) his trial attorney was ineffective
for failing to move for a change of venue, (2) the evidence was legally insufficient to
support his convictions for vulnerable adult abuse, and (3) the trial court violated his
right to due process by departing from the sentencing guidelines on the basis of alleged
future dangerousness. The Michigan Court of Appeals found no merit in these claims
and affirmed Petitioner’s convictions in a published decision. See Cline, 276 Mich. App.
at 634; 741 N.W.2d at 563. Petitioner raised the same claims in the Michigan Supreme
Court, which denied leave to appeal on March 24, 2008, because it was not persuaded
to review the issues. See People v. Cline, 480 Mich. 1134; 745 N.W.2d 786 (2008)
4

(table).
On or about March 25, 2009, Petitioner filed a motion for relief from judgment in
which he claimed that (1) he had newly discovered evidence that the prosecutor illegally
seized and concealed his Social Security benefits, (2) Police Officer Colleen Emerick
either testified falsely or falsified a police incident report, and (3) his trial and appellate
attorneys were constitutionally ineffective for failing to raise his claims about the
prosecutor and Officer Emerick at trial and on appeal. The trial court found no merit in
these claims and denied Petitioner’s motion. Petitioner appealed the trial court’s
decision, but the Michigan Court of Appeals denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Cline, No. 297904 (Mich. Ct. App. July 9, 2010). On March 29, 2011, the Michigan
Supreme Court denied leave to appeal for the same reason. See People v. Cline, 489
Mich. 859; 795 N.W.2d 141 (2011) (table).
Petitioner signed and dated his habeas corpus petition on May 10, 2011. The
grounds for relief are the six claims that Petitioner raised on direct appeal and in his
motion for relief from judgment.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
__ U.S. __, __, 131 S. Ct. 770, 783 (2011). Pursuant to § 2254, the court may not
grant a state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
5

(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.

28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II).
“[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. Rather, that application must
also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.”
6

Harrington v. Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). “[E]ven 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)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on 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.” Id. at 786-87.
III. DISCUSSION
A. Trial Counsel
Petitioner alleges that his trial attorney was ineffective for failing to move for a
change of venue due to inflammatory pre-trial publicity that saturated the community
and tainted the jury pool. The pretrial publicity apparently included three articles about
Petitioner’s case in the Bay City Times and eight articles about his case in the Huron
Daily Tribune. According to Petitioner, twenty of fifty-six prospective jurors (thirty-six
percent) were excused for cause after they admitted to being exposed to pretrial
publicity and forming an opinion of Petitioner’s guilt. And eight of the twelve jurors who
deliberated his case (sixty-seven percent) had heard about the case before trial. In light
of these statistics, Petitioner asserts that his trial attorney should have sought a change
of venue and, if he had, the trial court would have been required to grant the motion.
The Michigan Court of Appeals stated on direct review of this issue that the
totality of the circumstances surrounding the jury selection did not overcome the seated
jurors’ assurances that they could decide the case impartially. The Court of Appeals

7

concluded that the trial court would not have erred in denying a motion to change venue
and that trial counsel did not deprive Petitioner of his right to a fair trial by failing to
move for a change of venue.
1. Clearly Established Federal Law
a. Ineffective Assistance
The Sixth Amendment to the United States Constitution “does not guarantee the
right to perfect counsel; it promises only the right to effective assistance . . . .” Burt v.
Titlow, __ U.S. __, __, 134 S. Ct. 10, 18 (2013). To prevail on his claim, petitioner must
show that his attorney’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Unless
a defendant makes both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result unreliable.” Id.
An attorney’s performance is deficient if “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” See Michel v. Louisiana, [350
U.S. 91, 101 (1955)]. There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
8

Id.
To demonstrate that an attorney’s deficient performance prejudiced the defense,
the defendant must show “that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The petitioner must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. “This does
not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ ”
but “[t]he likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at 693).
b. Pretrial Publicity
At issue here is trial counsel’s failure to move for a change of venue due to
pretrial publicity.
It is well established that if prejudicial pretrial publicity jeopardizes a
defendant’s right to a fair trial by an impartial jury, the court should grant
the defendant a change in venue. See Irvin v. Dowd, 366 U.S. 717,
722–24, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Foley v. Parker, 488 F.3d
377, 387 (6th Cir. 2007). Prejudice can be presumptive or actual. Foley,
488 F.3d at 387. “Presumptive prejudice from pretrial publicity occurs
where an inflammatory, circus-like atmosphere pervades both the
courthouse and the surrounding community” and “is rarely presumed.” Id.
In the absence of presumed prejudice, “the trial court has a responsibility
to confront the fact of the publicity and determine if the publicity rises to
the level of ‘actual prejudice.’ ” Ritchie v. Rogers, 313 F.3d 948, 962 (6th
Cir. 2002). “[A] searching voir dire of the prospective jurors is the primary
tool to determine if the impact of the publicity rises to th[e] level” of actual
prejudice. Id. At voir dire, the court must examine the jurors’ statements
to determine if there is a community-wide sentiment against the
defendant; however, “[n]egative media coverage by itself is insufficient to
establish actual prejudice.” Foley, 488 F.3d at 387. When evaluating
jurors, “mere prior knowledge of the existence of the case, or familiarity
with the issues involved, or even some preexisting opinion as to the
9

merits, does not in and of itself raise a presumption of jury taint . . . .”
DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir.1998). Rather, “[t]he
relevant question is ‘did [the] juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and should
the juror’s protestation of impartiality have been believed.’ ” Foley, 488
F.3d at 387 (second alteration in original) (quoting Patton v. Yount, 467
U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). If a biased
juror was seated who should have been dismissed for cause, we must
reverse the conviction. Hughes v. United States, 258 F.3d 453, 463 (6th
Cir. 2001).
Campbell v. Bradshaw, 674 F.3d 578, 593-94 (6th Cir.), cert denied, __ U.S. __, 133 S.
Ct. 527 (2012).
2. Application
According to the Michigan Court of Appeals, there were eleven articles about
Petitioner’s case in local newspapers:
Six of the articles discuss the facts of the case, including the prosecutors’
perceptions of the facts and evidence, and track the procedural status of
the case. The other five address the proposal and passage of anti-torture
legislation, noting that the legislation was prompted by [Petitioner’s] case.
. . . While the six articles dealing with the case itself discuss more than
just its status, they do not ‘reveal the kind of inflammatory community
atmosphere that might sometimes justify disregarding the jurors’ claims of
impartiality.’ Only one article is an opinion piece, and that article is
specifically focused on the introduction and passage of the anti-torture
legislation.
Cline, 276 Mich. App. at 639-40; 741 N.W.2d at 567 (internal citations omitted).
The transcript of the voir dire proceedings indicate that the case was also
mentioned on radio and television. Many of the prospective jurors had heard
something about the case. Petitioner, however, has failed to establish sufficient facts to
demonstrate presumptive prejudice from the pretrial publicity, as there is no indication
in this case that an inflammatory, circus-like atmosphere pervaded the community.
10

Petitioner also has failed to show that he suffered actual prejudice. The trial
court questioned each of the prospective jurors who had heard about the case. The
questioning occurred in chambers, one prospective juror at a time. After excusing ten
prospective jurors for cause, the trial court said, “We’re getting close to start to thinking
about a change of venue if this keeps ups, if it gets worse.” (Trial Tr. Vol. I, 94, Dec.
13, 2005.) Although defense counsel did not request a change of venue, he did
indicate that it was necessary to continue with the tedious process of interviewing each
prospective juror who had heard about the case. (Id. at 126.)
Voir dire continued with the court questioning each prospective juror who had
heard or read about the case. The trial court excused those jurors who had formed an
opinion about Petitioner’s guilt or innocence or who had expressed an inability to set
aside what they had learned about the case and make a decision based only on the
evidence.
Of the twelve jurors who deliberated Petitioner’s case, four of them had not
heard anything about the case. The Court believes that the eight jurors who did hear or
read something about the case were Roger Gothro (juror number 84), Ronald Tyll (juror
number 131), Gary Ricker (juror number 96), Thomas Kempisty (juror number 87),
Kristine Gettel (juror number 99), Paulette Mauer (juror number 119), Steven Kosma
(juror number 67), and Michael Zinger (juror number 123).
Roger Gothro heard about the case on the radio, but he did not read any
newspaper articles or see any television reports about the case. Although he did hear
what Petitioner was alleged to have done, he did not recall all the details, and he
assured the trial judge that he had not formed an opinion of Petitioner’s guilt or
11

innocence as a result of what he had heard. He understood the presumption of
innocence and thought that he could decide the case only on the evidence presented
during the trial. When defense counsel asked Mr. Gothro whether he believed that
Petitioner was guilty, Gothro responded, “Well, no, I don’t know any other details.” (Id.
at 191-95.)
Ronald Tyll also heard about the case on the radio. He heard about the case
almost every day for the previous week, but he did not form an opinion on Petitioner’s
guilt or innocence, and he stated that he could decide the case based on the evidence
at trial. He knew of no reason why he could not render a fair and impartial verdict. (Id.
at 178-80.)
Gary Ricker read about the case in The Daily Tribune about four or five months
before trial, but nothing he read caused him to form an opinion. He did not hear about
the case on the radio or on television, and he did not have an opinion as to whether
Petitioner was guilty. He assured the trial court that he could decide the case with an
open mind, based only on the evidence presented in the courtroom, and he knew of no
reason why he could not sit on the jury and render a fair and impartial verdict. (Id. at
120-26.)
Michael Zinger also knew of no reason why he could not render a fair and
impartial verdict based solely on the evidence presented in the courtroom. (Id. at 126.)
He read about the case in the Tribune two or three times, and he also heard about the
case on the radio, on television, and in the community. Through those sources, he
learned the basic facts of the case and that some legislation had been proposed. He
believed that he could decide the case based on the evidence at trial, as he had not
12

formed an opinion on Petitioner’s guilt or innocence. (Id. at 90-93.)
Thomas Kempisty overheard people talking about the case at his job. He did not
form an opinion about the case or about Petitioner’s guilt or innocence, and he stated
that he was able to decide the case based on the evidence alone. (Id. at 214-16.)
Kristine Gettel saw some news about the case on the night before trial. That
was her first and only exposure to the case. She knew of no reason why she could not
sit on the jury and render a fair and impartial verdict based solely on the evidence
presented in the courtroom. (Id. at 212-13.)
Paulette Mauer read two articles about the case in the Tribune, and she knew
something about the case from television. She knew what Petitioner allegedly did, but
she did not form any opinions as to his guilt or innocence as a result of what she heard.
Initially, she said that she did not agree with what Petitioner did, but then she
acknowledged that there really was no way of knowing whether Petitioner did anything
because no evidence had been presented to her yet. She did not think that anything
had been written or said in the media to cause her to form an opinion about the case,
and she knew of no reason why she could not serve as a fair and impartial juror. (Id. at
243-49.)
Steven Kosma read “bits and pieces” about the case in the newspaper a few
months earlier. He did not recall specific facts about the case, and he did form any
opinion as to Petitioner’s guilt or innocence. He stated that he would be able to listen to
the evidence and decide the case solely on the evidence, and he knew of no reason
why he could not sit on the jury and render a fair and impartial verdict based solely on
the evidence presented in the courtroom. (Id. at 161-64.)
13

Petitioner has not identified a single juror who deliberated his case and indicated
an inability to fairly try the case or to set aside his or her prior knowledge about the
case. Nor has he alleged any reason why the jurors’ claimed impartiality should not be
believed. And because he has not shown presumptive or actual prejudice based on
pretrial publicity, his attorney was not ineffective for failing to move for a change in
venue. The state court therefore did not unreasonably apply Strickland when it
concluded that Petitioner was not deprived of a fair trial by defense counsel’s failure to
move for change of venue. Petitioner has no right to relief on the basis of his
ineffective-assistance-of-counsel claim.
B. Sufficiency of the Evidence
Petitioner alleges next that there was legally insufficient evidence to support his
convictions for vulnerable adult abuse. Specifically, he contends that the complainant
was not a vulnerable adult as defined by state law. The Michigan Court of Appeals
disagreed and concluded that there was sufficient evidence adduced at trial to establish
that the complainant was a vulnerable adult under state law.
1. Clearly Established Federal Law
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). “After Winship the
critical inquiry on review of the sufficiency of the evidence to support a criminal
conviction” is
whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. But this inquiry does not require a court to
14

“ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Instead, the relevant question is whether,
after viewing the evidence in the 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, 318-19 (1979) (internal citation and footnote omitted)
(emphases in original).
“A sufficiency of the evidence claim is a ‘steep climb’ . . . .” United States v.
Ross, 703 F.3d 856, 882 (6th Cir. 2012) (quoting United States v. Stafford, 639 F.3d
270, 273 (6th Cir. 2011)). Federal courts, moreover,
apply two layers of deference in reviewing habeas claims challenging
evidentiary sufficiency. McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir.
2010) (citing Brown v. Konteh, 567 F.3d 191, 204–05 (6th Cir. 2009)).
“First . . . [they] must determine whether, viewing the trial testimony and
exhibits in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Brown, 567 F.3d at 205 (citing Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979)). “Second,
even were [they] to conclude that a rational trier of fact could not have
found a petitioner guilty beyond a reasonable doubt, on habeas review,
[they] must still defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable.” Id. (citing 28 U.S.C. §
2254(d)(2)).
Moreland v. Bradshaw, 699 F.3d 908, 916-17 (6th Cir. 2012), cert denied, __ U.S. __,
134 S. Ct. 110 (2013).
2. Application
The Jackson standard “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324
n.16. In Michigan, “[f]irst-degree vulnerable-adult abuse occurs when ‘the caregiver
intentionally causes serious physical harm or serious mental harm to a vulnerable
adult.’” People v. Comella, 296 Mich. App. 643, 649-50; 823 N.W.2d 138, 141 (2012)
15

(quoting Mich. Comp. Laws § 750.145n(1)), appeal denied, 493 Mich. 905; 823 N.W.2d
278 (2012).
The only element in dispute here is whether the complainant was a vulnerable
adult. Under Mich. Comp. Laws § 750.145m(u)(i), a vulnerable adult can mean “[a]n
individual age 18 or over who because of age, developmental disability, mental illness,
or physical disability requires supervision or personal case or lacks the personal and
social skills required to live independently.” “Personal care” is defined in Mich. Comp.
Laws § 750.145m(m) as “assistance with eating, dressing, personal hygiene, grooming,
or maintenance of a medication schedule as directed and supervised by a vulnerable
adult’s physician.”
Petitioner points out that, although the complainant was blind and diabetic, she
lived independently for a while after they met and worked as a reservation agent for
Northwest Airlines. She occasionally traveled by airplane to the Upper Peninsula to
visit him, and she was able to bathe, feed, and clothe herself, give herself insulin
injections, walk, climb stairs, and do household chores by herself. He concludes that,
under these circumstances, the prosecutor failed to prove beyond a reasonable doubt
that the complainant required supervision, personal care, or the skills required to live
independently.
The record supports Petitioner’s version of the facts to an extent. The
complainant testified that, during a two-year period of time, she lived independently and
was responsible for herself. She was able to work and perform her job so well that she
received a merit award from her employer. (Trial Tr. Vol. II, 408-09, 432.) And, at the
time of trial, she could bathe, feed, and clothe herself. She could also wash her
16

clothes, although the dark clothing would get mixed in with the light-colored clothing.
Additionally, she could go to the bathroom without assistance, shower and clean up by
herself, and live independently to some degree. (Id. at 428-29.)
Despite these indicators of self sufficiency, the complainant required some
assistance. (Id. at 427-28.) Due to her total blindness, she depended on others for
transportation, help with purchasing food, selecting the right canned goods in her own
cupboards, getting refills on prescriptions, and reading her mail. (Id. at 303-04.) She
also had trouble paying her bills without assistance. (Id. at 431.)
The Michigan Court of Appeals determined that there was sufficient evidence
adduced at trial to establish that the complainant was a vulnerable adult under the
statute. The record supports this conclusion, for the complainant was over eighteen
years of age and, due to her blindness, she required supervision and some degree of
personal care. Thus, a rational trier of fact viewing the evidence in the light most
favorable to the prosecution could have concluded that the complainant was a
vulnerable adult.
Even if the Court had concluded that a rational trier of fact could not have found
Petitioner guilty beyond a reasonable doubt, the state appellate court’s sufficiency
determination was not unreasonable. This Court therefore must defer to the state
court’s conclusion that the complainant was a vulnerable adult under state law and that
there was sufficient evidence to support the jury’s verdict. Moreland v. Bradshaw, 699
F.3d at 917. In fact, the state court's interpretation of state law binds this Court sitting in
habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire,
502 U.S. 62, 67–68 (1991), and Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). The
17

Court therefore declines to grant relief on the basis of Petitioner’s challenge to the
sufficiency of the evidence.
C. The Sentence
Petitioner alleges that he is entitled to be re-sentenced because the trial court
departed from the statutory sentencing guideline range, in part, on the basis of his
alleged future dangerousness.4 Petitioner contends that his alleged future
dangerousness was not an objectively verifiable reason for departing from the
guidelines.
The Michigan Court of Appeals determined on direct review that Petitioner was
not entitled to re-sentencing. The court stated that the trial court did not rely on
Petitioner’s age and future dangerousness in departing from the guidelines. The court
opined in the alternative that the trial court would have departed to the same extent
without consideration of the invalid factors.
In Michigan, a sentencing court may depart from the state sentencing guidelines
if the court has a substantial and compelling reason for the departure. Mich. Comp.
Laws § 769.34(3). A factor must be objective and verifiable if used as a substantial and
compelling reason for departing from the guidelines. See People v. Babcock, 469 Mich.
247, 264-65; 666 N.W.2d 231, 241 (1995). Nevertheless, “Petitioner had no federal
constitutional right to be sentenced within Michigan’s guideline minimum sentence
recommendations.” Doyle v. Scutt, 347 F. Supp.2d 474, 485 (E.D. Mich. 2004). And

4

The highest minimum sentence scored under the sentencing guidelines was
eighteen years, nine months. Petitioner received a minimum sentence of twenty-five
years for his kidnapping conviction.
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the contention that the state court violated Michigan law fails to state a claim for which
habeas corpus relief may be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir.
2000).
Furthermore, Petitioner’s sentence of twenty-five to forty years in prison for
kidnapping and ten to fifteen years in prison for vulnerable adult abuse did not exceed
the statutory limits. See Mich. Comp. Laws § 750.349(3) (kidnapping is punishable by
imprisonment for life or any term of years); Mich. Comp. Laws § 750.145n(1)
(“Vulnerable adult abuse in the first degree is a felony punishable by imprisonment for
not more than 15 years . . . .”) “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)).
Finally, even if Petitioner’s claim were cognizable on habeas review, there is no
merit in the claim. Petitioner was forty-three years old at sentencing, and the trial court
opined that, for the safety of the public and society, Petitioner had to be kept away from
society for a long time or at least until he could be safely returned to society.
Future dangerousness may not be a verifiable and proper consideration under
state law, but the trial court relied on several other permissible factors as grounds for
exceeding the sentencing guidelines. Among the factors the court considered were:
Petitioner’s outrageous conduct; the fact that he took advantage of a physically limited
victim for his own sadistic purposes; the fact that Petitioner’s total offense variable
score was 120 even though the highest level on the grid for the offense variable score
was 100+; and the fact that Petitioner was convicted of seventeen convictions for
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vulnerable adult abuse.
The record supports the state appellate court’s conclusion that the trial court
would have departed from the sentencing guidelines range to the same extent even if it
had ignored Petitioner’s age and future dangerousness. And, for all the foregoing
reasons, the Court declines to grant relief on Petitioner’s sentencing claim.
D. The Prosecutor
Petitioner claims to have newly discovered evidence that the prosecutor seized
and concealed funds to which he was entitled as a recipient of social security disability
benefits. He maintains that the seizure of the funds deprived him of his right to hire his
own attorney instead of having to rely on a public defender.
The trial court was the only state court to address this issue. It stated that
Petitioner’s factual assertions did not support the conclusion that the prosecutor’s
retention of a check for $740 constituted an unreasonable and arbitrary interference
with Petitioner’s right to counsel of his own choice.
1. Clearly Established Federal Law
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a defendant in a criminal case the right to the assistance of counsel in his or
her defense. Faretta v. California, 422 U.S. 806, 807 (1975). “[A]n element of this right
is the right of a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). Put
another way, “ ‘the Sixth Amendment ‘guarantees a defendant the right to be
represented by an otherwise qualified attorney whom that defendant can afford to hire,

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or who is willing to represent the defendant even though he is without funds.’ ” Id.
(quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25 (1980)).
“A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully
denied.” Id. at 150 (emphasis in original). The petitioner “need not show prejudice or
demonstrate that the counsel he received was ineffective.” Abbey v. Howe, __ F.3d __,
__, No. 12-1437, 2014 WL 321866, at *5 (6th Cir. Jan. 30, 2014).
2. Application
Although Petitioner alleges that he should have received $5,250 in social
security disability benefits before he was convicted and that $4,510 of that amount is
still missing, exhibits to the habeas petition indicate that the prosecutor withheld only
$740. The prosecutor received a cashier’s check for $740 from the complainant with a
note stating that the funds represented social security benefits to which Petitioner was
entitled. The bank check was made payable to Petitioner, and the complainant was the
remitter on the check. At the time, Petitioner was under investigation by law
enforcement officials in Livonia, Michigan and the Upper Peninsula for criminal activity
involving the theft of thousands of dollars. The prosecutor held the cashier’s check for
$740 as possible evidence until the conclusion of Petitioner’s criminal case and then
deposited the money in Petitioner’s jail account. See Pet. for Writ of Habeas Corpus,
Exs. 1-3.
Petitioner contends that the prosecutor’s actions robbed him of the opportunity to
hire his own attorney, but the Court has found no indication in the state court record
that Petitioner wanted to retain an attorney, that he would have tried to retain an
attorney if he had received the check for $740, or that he could have retained an
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attorney for a four-day felony trial with his social security benefits. He has failed to
show that the prosecutor infringed on his right to counsel of choice, and the state
court’s conclusion – that the prosecutor’s action did not constitute an unreasonable and
arbitrary interference with Petitioner’s right to counsel of his own choice – was not
objectively unreasonable. Petitioner therefore has no right to relief on the basis of his
fourth claim.
E. Officer Emerick
The fifth habeas claim alleges that Police Officer Colleen Emerick either testified
falsely at trial or falsified an incident report about her investigation. Officer Emerick’s
incident report indicates that, during her investigation of the case, she went to the
hospital where the complainant had been admitted and talked to a nurse named Scott.
Scott advised her that the complainant had come to the hospital for treatment, but there
was nothing suspicious to report. The report indicates that Officer Emerick left the
hospital after speaking to Scott. See Pet. for Writ of Habeas Corpus, Ex. 6.
At trial, Officer Emerick testified that the information she gleaned from Scott
Thies led her to another nurse, who wished to keep her name confidential. The
information that Officer Emerick acquired from the female nurse caused her to focus
her attention on the complainant’s situation. (Trial Tr. Vol. III, 482-83, Dec. 21, 2005.)
Petitioner claims that Officer Emerick’s report was so inconsistent with her trial
testimony that either the report or the testimony must be false. In other words, if Officer
Emerick’s report is accurate about whom she consulted, her trial testimony was false,
and if her testimony was true, she falsified her report. Petitioner maintains that the trial
testimony amounted to perjury and that the prosecutor failed to correct it. Petitioner
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further alleges that his trial attorney was ineffective for failing to impeach Officer
Emerick on this issue and his appellate attorney was ineffective for failing to raise this
issue on appeal.
The state trial court addressed this claim in its order denying Petitioner’s motion
for relief from judgment. It stated that
the record supports the conclusion that defense counsel was cognizant of
the conflict between the police officer’s testimony and her police report.
Therefore, his decision not to pursue cross-examination into that issue
can only be ascribed to trial strategy. Considering the overwhelming
evidence against defendant presented at trial, including [a] video tape of
defendant committing the offenses, defendant’s claim of entitlement to
relief is without merit.
People v. Cline, No. 05-4450-FC (Huron County Cir. Ct. May 5, 2009).
The federal definition of perjury is “false testimony [under oath or affirmation]
concerning a material matter with the willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507
U.S. 87, 94 (1993). And in Michigan, a person is guilty of perjury if he or she willfully
swears falsely under oath. Mich. Comp. Law § 750.423.
“[A] conviction obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury.” United States v.
Agurs, 427 U.S. 97, 103 (1976) (footnote omitted). Prosecutors may not deceive a
court and jurors by eliciting false evidence or by allowing false testimony to go
uncorrected when it appears. Giglio v. United States, 405 U.S. 150, 153 (1972); Napue
v. Illinois, 360 U.S. 264, 269 (1959). But to establish a denial of due process through
the use of false testimony, Petitioner must show that “ ‘(1) the statement was actually
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false; (2) the statement was material; and (3) the prosecution knew it was false.’ ” Coe
v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting United States v. Lochmondy, 890
F.2d 817, 822 (6th Cir. 1989)). “Testimony is material only if there is a reasonable
likelihood that it affected the judgment of the jury.” Peoples v. Lafler, 734 F.3d 503, 516
(6th Cir. 2013) (citing Brooks v. Tennessee, 626 F.3d 878, 895 (6th Cir. 2010)).
Even assuming that Officer Emerick’s incident report was correct and that her
trial testimony was false, there is not a reasonable likelihood that her testimony about
whom she interviewed during her investigation affected the jury’s verdict. Whether she
spoke only with Scott Thies or whether she spoke with both Thies and another nurse
was immaterial, because it was unrelated to the elements of the charged crimes.
Furthermore, “ ‘mere inconsistencies in testimony by government witnesses do
not establish knowing use of false testimony,’ ” Coe, 161 F.3d at 343 (quoting
Lochmondy, 890 F.2d at 822), and there is no reason to believe that Officer Emerick
intentionally offered false testimony. She may have been mistaken or negligent when
she wrote her incident report and failed to mention the female nurse, who wanted to
keep her identity confidential.
In conclusion, Petitioner has failed to show that the prosecutor knowingly relied
on perjured testimony or allowed false testimony to go uncorrected. As a result,
Petitioner’s trial attorney was not ineffective for failing to impeach Officer Emerick with
her incident report, and appellate counsel was not ineffective for failing to raise the
issue on direct appeal. An attorney is not ineffective for failing to make a meritless
argument. Shaneburger v. Jones,615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
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F. Cause and Prejudice
In his sixth and final claim, Petitioner alleges he has demonstrated “cause and
prejudice” under Michigan Court Rule 6.508(D)(3) for not raising his fourth and fifth
claims on direct appeal. Rule 6.508(D)(3) prohibits state courts from granting relief
from judgment if a defendant could have raised his claims on appeal from his judgment
or sentence unless the defendant shows cause for his failure to raise the claim on
appeal and actual prejudice from the alleged irregularities.
The trial court, however, was the only state court to adjudicate habeas claims
four and five in a reasoned decision, and it did not refer to Rule 6.508(D)(3) in its brief
order denying Petitioner’s motion for relief from judgment. Nor did the court say that it
was rejecting Petitioner’s fourth and fifth claims on the basis that he failed to raise those
claims on appeal. Instead, the trial court addressed claims four and five on their merits.
Although the State’s appellate courts subsequently cited Rule 6.508(D) as a
basis for denying leave to appeal, their brief references to the rule are ambiguous as to
whether they refer to a procedural default or to the denial of relief on the merits.
Guilmette v. Howes, 624 F.3d 286, 289-92 (6th Cir. 2010). Thus, it cannot be said that
the state courts relied on the cause-and-prejudice language of Rule 6.508(D)(3) to deny
relief. And because this Court has not treated claims four and five as procedurally
defaulted, Petitioner is not required to show cause for the failure to raise claims four
and five on direct appeal or prejudice from the alleged constitutional errors. Cf.
Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding that, “[i]n all cases in which a
state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of the claims is
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barred unless the prisoner 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”).
Furthermore, for the reasons given above, claims four and five have no
substantive merit. Therefore, to the extent Petitioner is re-asserting that the prosecutor
violated his right to counsel of choice and allowed false testimony to go uncorrected, he
is not entitled to habeas relief.
IV. CONCLUSION
The state court decisions in this case were not contrary to Supreme Court
precedent, an unreasonable application of Supreme Court precedent, nor an
unreasonable determination of the facts. Consequently, the petition for a writ of habeas
corpus [dkt. #1] is DENIED.
V. CERTIFICATE OF APPEALABILITY
Petitioner may not appeal this decision unless a district or circuit judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). When, as here, “a district court has rejected the constitutional claims on the

26

merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
Reasonable jurists could debate the Court’s assessment of Petitioner’s first claim
regarding trial counsel’s failure to move for a change of venue and Petitioner’s second
claim regarding the sufficiency of the evidence. The Court therefore grants a certificate
of appealability on those claims and leave to proceed in forma pauperis on appeal. The
Court declines to grant a certificate of appealability on Petitioner’s remaining claims
because those issues are not adequate to deserve encouragement to proceed further.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Dated: February 5, 2014

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, electronically.
s/Bernadette M. Thebolt
Case Manager

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