Dekeyzer v. Harry
Filing
9
OPINION and ORDER Denying the Petition for Writ of Habeas Corpus re 1 , but Granting In Part A Certificate of Appealability. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM ROGER DEKEYZER,
Petitioner,
CASE NO. 11-14622
HONORABLE DENISE PAGE HOOD
v.
SHIRLEE HARRY,
Respondent.
________________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, BUT
GRANTING IN PART A CERTIFICATE OF APPEALABILITY
Petitioner William Roger Dekeyzer has applied for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner is challenging his convictions for three
counts of criminal sexual conduct on grounds that (1) a prosecution witness
committed perjury at his trial, (2) his trial attorneys were ineffective, and (3) the
admission of prior “bad acts” evidence deprived him of a fair trial and the right to
remain silent. Respondent argues in an answer to the petition that none of Petitioner’s
claims have merit and that Petitioner procedurally defaulted one claim and failed to
exhaust state remedies for another claim. The Court agrees with Respondent that
Petitioner is not entitled to habeas corpus relief. The habeas petition therefore is
denied. The reasons follow.
I. THE FACTS AND PROCEDURAL HISTORY
A. The Charges and Trial Testimony
Petitioner was charged in St. Clair County, Michigan with one count of criminal
sexual conduct in the first degree, see Mich. Comp. Laws § 750.520b(1)(a) (sexual
penetration of a person under the age of thirteen), and two counts of criminal sexual
conduct in the second degree, see Mich. Comp. Laws § 750.520c(1)(a) (sexual contact
with a person under the age of thirteen). The charges arose from allegations that
Petitioner engaged in sexual activity with his underage granddaughter (“C.C.”)1 in
2004 and 2005 when she stayed with Petitioner and his wife on Harsens Island. C.C.
was nine or ten years old then and twelve years old in 2007 when she testified at
Petitioner’s jury trial in St. Clair County Circuit Court. Her testimony and the
testimony of the other witnesses is summarized below.
Graham Rummel
Sergeant Graham Rummel of the Clay Township Police Department testified
that, in February of 2006, a county agency known as Child Protective Services asked
him to investigate Petitioner. He subsequently spoke with Petitioner and Petitioner’s
daughter, Tracy Cook, and then forwarded a complaint to the prosecutor’s office for
1
The Court will refer to the complainant by her initials.
2
review.
Tracy Cook
Tracy Cook testified that she was Petitioner’s daughter and C.C.’s mother. In
2004, she and her husband started their own business and entrusted their minor
children to her parents while she and her husband were working. During the summer
of 2004, C.C. complained that she was uncomfortable around Petitioner because he
would hug her, rub her back, and then move his hands down toward her buttocks. Ms.
Cook thought that C.C. was merely feeling uncomfortable and self conscious about
her maturing body. She nevertheless spoke with Petitioner and asked him to stop
hugging C.C. in the manner that he had been hugging her and to watch where he put
his hands. Petitioner did not say anything at the time, and Ms. Cook thought that the
matter was resolved.
In the fall of 2004, C.C. became more apprehensive about staying with her
grandparents, and she became exceptionally moody. During the following summer,
C.C. made excuses to avoid going to her grandparents’ home because she was worried
about Petitioner hugging and touching her. Later that summer, Ms. Cook’s sister,
Cheryl Dekeyzer Johnson, informed Ms. Cook that C.C. had confided in her about
inappropriate things Petitioner was doing to her. Ms. Cook then talked to C.C. and
learned more details about what was happening between Petitioner and C.C. In
3
January of 2006, C.C. began having nightmares about Petitioner climbing in her
window to hurt her. Ms. Cook then took C.C. to a counselor, who contacted the
police.
On cross-examination, Ms. Cook testified that C.C. was not examined by a
physician after she disclosed the sexual abuse. Ms. Cook claimed, however, that she
did take C.C. to their family doctor, who advised Ms. Cook that, even if penetration
occurred, it would not show up.
Cheryl Dekeyzer Johnson
Petitioner’s other daughter, Cheryl Dekeyzer Johnson, testified that she was
forty-one years old and that she lived with her parents until she was eighteen years
old. When she was six years old, Petitioner began having sexual contact with her.
Initially, he would hug and touch her through her clothes. As she got older, the
sexual abuse progressed. Petitioner would fondle her, touch her breasts and genital
area, put his finger in her vagina, try to insert his penis in her, and make her perform
oral sex on him. Sometimes he performed oral sex on her or ejaculated on her. The
abuse ended when she turned sixteen and confided in a nun at the school she attended.
She never notified the police because she was not aware of that option and because
she honestly thought that what Petitioner had done to her was how parents educated
their children about sex. She confronted Petitioner about his conduct, but he had
4
responded, “When you walk around in a bikini, what am I supposed to do?” She
moved out of the house at age eighteen and later moved out of state. She eventually
moved back to Michigan and, in 2003, she began having contact with her sister Tracy
Cook’s children. During the summer of 2005, C.C. told her what Petitioner had done
to her. Ms. Johnson then called C.C.’s mother, and C.C. informed her mother what
had happened.
The Complainant
C.C. testified that she was twelve years old and, when she was younger, she
would go to her grandparents’ home on Harsens Island. Beginning in 2004,
Petitioner would hug her, rub her back, and touch her private area approximately once
a week. He also touched her buttock more than one time. She was uncomfortable
with Petitioner’s behavior and informed her mother what was happening, but
Petitioner continued to touch her private parts during the summer of 2005. More than
one time, Petitioner put his finger between the folds of the skin in her genital area, and
he would rub her buttock with his hands. She subsequently disclosed the abuse to her
mother, her Aunt Cheryl, and the police.
The prosecutor rested after C.C. testified. The defense witnesses included
Michael D’Anniballe, Diane Dekeyzer, James Kristich, Ronald Dekeyzer, Stacy
Carpenter, and Petitioner.
5
Michael D’Anniballe
Mr. D’Anniballe testified that he dated Cheryl Dekeyzer Johnson from early
2003 to August of 2005. He did not consider Ms. Johnson or Tracy Cook to be
truthful people, and, in his opinion, Ms. Johnson was the type of person who would
manipulate other people. He had an opportunity to observe Ms. Johnson interact with
Petitioner, and it did not appear to him that there was a strained relationship between
the two of them. Ms. Johnson frequently called her parents, and they hugged one
another when they greeted each other and when they said goodbye. C.C. appeared to
be happy at the time, and she did not refuse her grandfather’s embraces or touches.
He never saw Petitioner rub C.C.’s buttocks, touch her breasts or vaginal area, or have
any sexual contact with her, and he was very skeptical about Ms. Johnson’s
allegations that Petitioner sexually assaulted her multiple times a week between the
ages of six and sixteen.
Diane Dekeyzer
Petitioner’s wife, Diane Dekeyzer, testified that she had a good relationship
with Petitioner and believed he was an honest man. She claimed that she never
noticed Petitioner acting improperly with his children and that there was nothing
strange about Petitioner’s interactions with C.C. during the summers of 2004 and
2005. She never saw Petitioner engage in sexual behavior with their daughter Cheryl
6
or touch C.C. in a sexual manner. Mrs. Dekeyzer explained that, although her
daughters initially were included in her and her husband’s estate plans, their daughters
were excluded from the estate plans in 2004 or 2005 after allegations were made about
Petitioner.
James Kristich
James Kristich testified that he lived next door to Petitioner on Harsens Island
for ten years. Although he could not recall seeing Petitioner interact with his children
or grandchildren, he (Kristich) thought that he probably would have reported
Petitioner to the police if he had seen Petitioner rub C.C.’s breasts.
Ronald Dekeyzer
Ronald Dekeyzer was Petitioner’s son and Cheryl Dekeyzer Johnson’s brother.
He testified that, when he lived in the family home, he never observed any sexual
contact between Petitioner and Ms. Johnson, and he never saw any inappropriate
behavior between Petitioner and C.C. during 2004 or 2005. In the fall of 2005, he
informed his sister Tracy that she and their sister Cheryl were not beneficiaries of their
parents’ trust.
Stacy Carpenter
Stacy Carpenter was Ronald Dekeyzer’s stepdaughter. She testified that she
had been to Petitioner and Diane Dekeyzer’s home on Harsens Island many times and
7
that she never observed anything abnormal about Petitioner’s behavior toward C.C.
In her opinion, Tracy Cook was a liar and “very mean.” Her mother, stepfather, stepgrandfather, and a few other people on the island also thought that Ms. Cook was a
liar.
William Roger Dekeyzer
Petitioner testified that he was a sixty-three-year-old retiree from General
Dynamics and the father of four children. He claimed that he did not currently have
a relationship with his daughter Cheryl due to the allegations that she had made
against him. He denied raping Cheryl or touching her inappropriately during Cheryl’s
childhood.
Petitioner also denied inappropriately touching his granddaughter during the
summers of 2004 and 2005. He specifically denied touching C.C.’s breasts and
buttocks or putting his finger in C.C.’s vagina. He denied all the serious allegations
that had been made about him at trial, and he claimed to be telling the truth.
As for his estate plans, Petitioner explained that his trust was valued at more
than two million dollars and that his wife, two sons, and grandchildren, including
C.C., were the beneficiaries of the trust. He and his wife initially planned to leave
their wealth to their four children, but in 2005, he decided not to leave any money to
his daughters because of the unfounded allegations they were making about him. The
8
trust was finalized in May of 2006.
B. The Verdict, Sentence, Motion for New Trial, and Appeal
On August 10, 2007, the jury found Petitioner guilty, as charged, of one count
of criminal sexual conduct in the first degree and two counts of criminal sexual
conduct in the second degree. On September 10, 2007, the trial court sentenced
Petitioner to imprisonment for eighty-one months (six years, nine months) to thirty
years for the first-degree criminal-sexual-conduct conviction and to a concurrent term
of nineteen months (one year, seven months) to fifteen years for the two seconddegree criminal-sexual- conduct convictions.
Petitioner moved for a new trial, claiming that he had new evidence that Tracy
Cook committed perjury at his trial. The alleged perjury was Tracy Cook’s testimony
that she consulted Dr. James Faremouth, Jr., after C.C. disclosed the sexual abuse. In
support of his motion, Petitioner attached an affidavit from Dr. Faremouth, who
averred that he never discussed any sexual abuse of C.C. with C.C.’s mother. The trial
court held oral arguments on Petitioner’s motion and then denied the motion.
According to the trial court, new evidence that Dr. Faremouth did not examine the
victim would not have produced a different result in the case.
Petitioner appealed his convictions to the Michigan Court of Appeals. He
argued that: (1) the trial court admitted prior “bad acts” evidence in violation of
9
Michigan Rule of Evidence 404(b) and his right to due process of law; (2) the
admission of prior “bad acts” evidence violated Michigan Rule of Evidence 403 and
his constitutional rights to due process and to remain silent; (3) trial counsel was
ineffective for failing to (a) propose a limiting jury instruction on the improper “bad
acts,” (b) object or investigate Tracy Cook’s perjury, and (c) attempt to obtain Cheryl
Dekeyzer Johnson’s mental health records; and (4) the trial court erred by refusing to
hold an evidentiary hearing on his motion for new trial. The Michigan Court of
Appeals affirmed Petitioner’s convictions in an unpublished, per curiam opinion, see
People v. Dekeyzer, No. 281207 (Mich. Ct. App. Aug. 13, 2009), and on April 27,
2010, the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issues. See People v. Dekeyzer, 486 Mich. 900; 780 N.W.2d
805 (2010) (table). On July 26, 2010, the state supreme court denied reconsideration.
See People v. DeKeyzer, 487 Mich. 859; 784 N.W.2d 210 (2010) (table).
C. The Habeas Petition and Responsive Pleading
Petitioner filed his habeas corpus petition through counsel on October 20, 2011.
He argues that: (1) his convictions were obtained through the use of perjured
testimony; (2) his trial attorneys rendered ineffective assistance by failing to (a)
propose a limiting jury instruction on the “bad acts” evidence, (b) object or investigate
the proffered perjury, and (c) obtain Cheryl Dekeyzer Johnson’s mental health records
10
for in camera review; and (3) he was denied his right to a fair trial and his right to
remain silent by the admission of prior “bad acts” evidence.
Respondent asserts that Petitioner did not exhaust state remedies for his claim
about the prosecutor’s use of perjured testimony because he styled the issue on direct
appeal as an error by the trial court in denying his request for an evidentiary hearing
or new trial on his perjury claim. Respondent contends that the first subsection of
Petitioner’s second claim (trial counsel’s failure to request a jury instruction on “bad
acts” evidence) is procedurally defaulted because the Michigan Court of Appeals
deemed the claim waived. Finally, Respondent argues that Petitioner’s “bad acts”
claim is not cognizable on habeas review and that the state court’s decision was not
contrary to clearly established Supreme Court precedent.
The doctrines of procedural default and exhaustion of state remedies are not
jurisdictional matters. See Trest v. Cain, 522 U.S. 87, 89 (1997) (stating that “a
procedural default . . . is not a jurisdictional matter”); Castille v. Peoples, 489 U.S.
346, 349 (1989) (noting that the exhaustion rule is not a jurisdictional requirement).
And federal courts are not required to address the two doctrines before deciding
against the petitioner on the merits. See 28 U.S.C. § 2254(b)(2) (stating that “[a]n
application for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the
11
States”); Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (noting that “federal
courts are not required to address a procedural-default issue before deciding against
the petitioner on the merits”). The alleged procedural errors in this case are excused
because Petitioner’s claims do not warrant habeas relief, and the Court finds it is more
efficient to proceed directly to the merits of Petitioner’s claims than to analyze
whether the claims are unexhausted or procedurally defaulted.
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
(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).
12
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 “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, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320,
333, n. 7 (1997), and Woodford v. Visciotti, 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. 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.
13
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.
Habeas review, moreover, is “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct.
1388, 1398 (2011).
III. ANALYSIS
A. Perjury
At a pretrial hearing, the prosecutor asserted that C.C. did not have a medical
examination and that the prosecution was not withholding any medical records from
defense counsel. (Mot. Hr’g, 11, 13, Aug. 6, 2007.) C.C.’s mother, Tracy Cook,
subsequently testified at trial that, although C.C. was not examined for any injuries
after she disclosed what Petitioner had done to her, Ms. Cook did take C.C. to a family
doctor named Faremouth and that Dr. Faremouth had said any penetration of C.C.
would not be visible, even if it had occurred. (Trial Tr. Vol. II, 482-83, Aug. 8, 2007.)
Petitioner asserts that Ms. Cook’s testimony on this point constituted perjury
because Dr. Faremouth has averred in an affidavit, which he signed after Petitioner’s
trial, that he did not discuss any allegations of sexual abuse with Ms. Cook.
14
According to Petitioner, the perjury undermined his defense that, if Tracy Cook truly
believed her daughter had been sexually abused, she would have had C.C. examined.
The Michigan Court of Appeals determined on review of Petitioner’s claim that a new
trial on the newly discovered evidence was unwarranted because informing the jury
that the victim’s mother had committed perjury would not make a different result
more probable on retrial.
1. Clearly Established Federal Law
“[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, 103-104 (1976). Prosecutors, as representatives of the state, 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). The United States Court of
Appeals for the Sixth Circuit has
fashioned a three-part test for determining whether there was a denial of
due process through the use of false testimony:
In order to establish prosecutorial misconduct or denial of
due process, the defendants must show (1) the statement
was actually false; (2) the statement was material; and (3)
the prosecution knew it was false. The burden is on the
15
defendants to show that the testimony was actually
perjured, and mere inconsistencies in testimony by
government witnesses do not establish knowing use of false
testimony.
Brooks [v. Tennessee, 626 F.3d 878, 894-95 (6th Cir. 2010)] (quoting
Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998)). Testimony is material
only if there is a reasonable likelihood that it affected the judgment of
the jury. Id. at 895.
Peoples v. Lafler, __ F.3d __, __, No. 11-2161, 2013 WL 5811601, at *10 (6th Cir.
Oct. 30, 2013).
2. Application
Perjury is “false testimony 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). Whether Tracy Cook
actually committed perjury when she testified that she consulted Dr. Faremouth about
C.C.’s allegations of sexual abuse is questionable. She could have been telling the
truth about consulting Dr. Faremouth, and Dr. Faremouth could have been mistaken
when he averred in his affidavit that he did not speak with Ms. Cook about allegations
of sexual abuse perpetrated on C.C. Even if Ms. Cook was mistaken about consulting
Dr. Faremouth, inaccurate testimony is not necessarily perjury. It can be the result of
confusion, mistake, or faulty memory. Dunnigan, 507 U.S. at 94.
Not only is there no definitive proof that Tracy Cook perjured herself, there is
16
no indication in the record that the prosecutor knew Tracy’s trial testimony was false.
The prosecutor maintained before trial that there was no physical examination of C.C.
She did not say that anything about whether Tracy Cook consulted a physician
regarding C.C.’s allegations, and Dr. Faremouth’s contradictory affidavit did not come
to light until after the trial.
The alleged perjury also was not material evidence. Whether Ms. Cook
consulted a physician was not significant. The broader issue was the lack of physical
evidence supporting the charges, and Ms. Cook admitted that Dr. Faremouth did not
examine C.C. for signs of injury or sexual abuse. This testimony supported defense
counsel’s argument that reasonable doubt existed because there was no medical or
physical evidence to corroborate C.C.’s allegations and because no one bothered to
have C.C. examined to determine whether she had been injured by the alleged abuse.
There is not a reasonable likelihood that Tracy Cook’s allegedly false
testimony affected the jury’s verdict in light of the other evidence in the case,
including C.C.’s testimony and Cheryl Dekeyzer Johnson’s testimony, which tended
to make Petitioner’s denial of the charges appear incredible. Even if the jury
concluded that Ms. Cook lied about consulting a physician, the jury was free to accept
other aspects of her testimony.
Furthermore, the defense theory was not
17
completely undermined by evidence that Ms. Cook had consulted a physician about
C.C.’s allegations of sexual abuse. Defense counsel emphasized that reasonable doubt
existed because: (1) nobody testified that they observed the alleged abuse, despite
allegations that the abuse occurred multiple times over a period years while other
people were nearby; (2) C.C. was a pawn of Tracy Cook and Cheryl Dekeyzer
Johnson, who were motivated by greed and were retaliating against their father for
being eliminated as beneficiaries of their parents’ future estate; and (3) the three main
prosecution witnesses were not credible, for Tracy Cook and Cheryl Dekeyzer
Johnson were known to be liars, and C.C. could not remember details about the
alleged abuse.
The Court concludes that Petitioner has failed to satisfy the three-part test for
perjury. Even if he were able to show that Ms. Cook’s statement about consulting Dr.
Faremouth was actually false, he has not shown that the statement was material, or
that the prosecution knew the statement was false. And the state appellate court’s
rejection of Petitioner’s claim was not “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. at 786-87. The Court
therefore denies relief on Petitioner’s perjury claim.
B. Trial Counsel
18
Next, Petitioner alleges that his trial attorneys rendered constitutionally
ineffective assistance. He blames his attorneys for failing to (1) propose a limiting
jury instruction on the “bad acts” evidence, (2) object to, or investigate, the proffered
perjury, and (3) obtain Cheryl Dekeyzer Johnson’s mental health records for in
camera review. The Michigan Court of Appeals rejected each of these claims and
concluded that Petitioner was not deprived of effective assistance of counsel.
1. Clearly Established Federal Law
To prevail on his claim, Petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is considered
deficient if it was “outside the wide range of professionally competent assistance.”
Id. at 690. “This requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. And, because of the difficulties inherent in assessing
counsel’s performance and evaluating counsel’s conduct from his or her perspective
at the time, “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
19
be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
To satisfy the prejudice prong of the Strickland test, Petitioner must show “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).
Habeas relief may be granted only if the state-court decision unreasonably
applied the Strickland standard. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
The question is not whether the Court “‘believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that determination was
unreasonable – a substantially higher threshold.’” Id. at 123 (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)).
2. Failure to Propose a Limiting Jury Instruction
Petitioner contends that his trial attorneys were ineffective for failing to propose
a limiting jury instruction on Cheryl Dekeyzer Johnson’s “bad acts” testimony. The
Michigan Court of Appeals determined that Petitioner waived appellate review of this
20
claim by approving of the instructions as read to the jury. The Court of Appeals also
presumed that trial counsel’s decision to approve the jury instructions, as read to the
jury, was sound trial strategy, because an additional instruction could have unduly
highlighted Ms. Johnson’s testimony. Petitioner replies that his trial attorneys were
ineffective precisely because they failed to object to the jury instructions as read to the
jury.
This is not a case where the trial court failed to read a jury instruction on
evidence of other uncharged acts. The trial court gave the following instruction:
You've heard evidence that was introduced to show that the
Defendant has engaged in improper sexual conduct for which the
Defendant is not on trial.
If you believe this evidence, you must be very careful to consider
it for only one limited purpose, that is, to help you judge the believability
of testimony regarding the acts for which the Defendant is now on trial.
....
You must not consider this evidence for any other purpose. For
example, you must not decide that it shows that the Defendant is a bad
person or that the Defendant is likely to commit crimes. You must not
convict the Defendant here because you think he's guilty of other bad
conduct.
(Trial Tr. Vol. IV, 878-79, Aug. 10, 2007.)
Petitioner maintains that this instruction did not apply to Cheryl Dekeyzer
Johnson’s testimony and that it applied only to C.C.’s testimony about other
21
uncharged acts. The Court disagrees. The instruction pertained to any testimony, not
merely the complainant’s testimony, about uncharged sexual misconduct committed
by Petitioner. The Court therefore agrees with the Michigan Court of Appeals that the
trial court’s instruction “sufficiently conveyed to the jury not to improperly use [Ms.]
Johnson’s testimony.” Dekeyzer, Mich. Ct. App. No. 281207, at 3. Trial counsel was
not ineffective for failing to propose an additional jury instruction on how to evaluate
“bad acts” evidence.
3. Failure to Object or Investigate the Alleged Perjury
Petitioner alleges next that his trial attorneys were ineffective for failing to
object to Tracy Cook’s perjury. As noted above, it is not entirely clear whether Tracy
Cook committed perjury when she testified that she consulted Dr. Faremouth after
C.C. made her allegations of sexual abuse. It was even less clear at the time of
Petitioner’s trial, which predated Dr. Faremouth’s affidavit stating that he never
discussed allegations of sexual abuse with Tracy Cook.
Petitioner nevertheless contends that his attorneys should have moved for a
continuance to locate Dr. Faremouth. His trial attorneys, however, have stated in a
post-trial affidavit that Tracy Cook’s comment about consulting Dr. Faremouth was
a complete surprise to them and, because the comments occurred during trial, they
could not investigate the allegation, nor obtain any records from Dr. Faremouth. To
22
their credit, trial counsel attempted to discredit Ms. Cook’s testimony by eliciting
testimony from other witnesses that she was a liar and by trying to show that her
allegations about Petitioner stemmed from being excluded from her parents’ estate
plans.
Petitioner also contends that his attorneys should have cross-examined Ms.
Cook about her previous representations that there was no medical consultation. But
the previous representations were that there was no medical examination and there
were no medical records.
Ms. Cook’s testimony was consistent with these
representations. She testified that, although she consulted Dr. Faremouth, the doctor
did not physically examine C.C.
Even if trial counsel’s performance was deficient, the deficient performance did
not prejudice the defense because the defense theory was multifaceted and, as
explained above, there is not a reasonable likelihood that the allegedly false testimony
affected the jury’s verdict. The Court therefore concludes that Petitioner’s trial
attorneys were not ineffective for failing to do more when Ms. Cook testified that she
consulted Dr. Faremouth and that Dr. Faremouth had said there would be no evidence
of penetration if it had occurred.
4. Failure to Obtain a Witness’s Psychiatric Records
Petitioner’s final claim about his trial attorneys is that they failed to obtain
23
Cheryl Dekeyzer Johnson’s psychiatric records for in camera review.2 Petitioner
claims that Ms. Johnson’s mental health records were the only contemporaneous
records that he could use to impeach her.
Petitioner merely speculates that Ms. Johnson’s records would have contained
impeachment material. His claim lacks merit for an additional reason: his attorneys
did attempt to acquire Ms. Johnson’s medical and psychiatric records, and the reason
that they failed to obtain the records is that the trial court denied the defense motion
for release of the records.
Petitioner contends that the trial court ruled on C.C.’s medical records, but
never ruled on the issue of Ms. Johnson’s records. The Court disagrees. The defense
motion sought a waiver of privileges and release of medical and psychiatric records
for C.C. and Ms. Johnson, and the trial court denied the motion without limiting its
ruling.
See Motion to Compel Waiver of Physician-Patient, Sexual Assault
Counselor-Client, Social Worker-Patient, Psychiatrist-Psychologist-Patient and
Therapist-Patient Privileges, Docket No. 8-12; see also Mot. Hr’g, 23-29, Feb. 20,
2007; Mot. Hr’g, 5-27, Aug. 6, 2007. The fact that the attorneys were unable to obtain
Ms. Johnson’s records due to an unfavorable court ruling is not a basis for habeas
2
Ms. Johnson testified in a pretrial hearing that she began seeing doctors and
therapists when she was sixteen years old and that, in 1984 and 1987, she was
hospitalized for depression.
24
relief. Youngblood v. Maggio, 696 F.2d 407, 410 (5th Cir.1983). The attorneys were
unsuccessful, but not ineffective.
For all the foregoing reasons, the Court finds that Petitioner’s trial attorneys
were not constitutionally ineffective. As such, the state appellate court’s rejection of
Petitioner’s ineffectiveness claims was objectively reasonable.
C. “Other Acts” Evidence
Petitioner’s third and final claim challenges the admission of prior “bad acts”
evidence at his trial. The evidence consisted of Cheryl Dekeyzer Johnson’s testimony
that Petitioner sexually abused her for a period of ten years, beginning when she was
six years old and ending when she was sixteen years old. Petitioner asserts that Ms.
Johnson’s testimony violated his right to due process because it was virtually
impossible for him to impeach Ms. Johnson’s testimony about events that occurred
thirty-five years earlier. Petitioner also contends that Ms. Johnson’s testimony
violated his constitutional right to remain silent because he was required to testify to
address her allegations.
The Michigan Court of Appeals concluded on the basis of state law that the trial
court did not abuse its discretion by admitting the evidence. The Court of Appeals
opined that the evidence was admitted for a proper purpose, that the evidence was
relevant, and that any prejudice caused by the admission of the evidence did not
25
substantially outweigh the probative value of the evidence.
Petitioner has not cited any case law, much less a Supreme Court decision, to
support his contention that the admission of “bad acts” evidence violated his Fifth
Amendment right to remain silent. The Court therefore rejects his Fifth Amendment
claim.
Petitioner’s additional allegations – that Ms. Johnson’s testimony violated the
protections afforded by Michigan Rule of Evidence 403 and that the trial court failed
to determine whether the requirements of Michigan Rule of Evidence 404(b) were met
– are not cognizable here because “federal habeas corpus relief does not lie for errors
of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,
68 (1991).
As for Petitioner’s due process claim,
[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 . . . . While the Supreme Court has
addressed whether prior acts testimony is permissible under the Federal
Rules of Evidence, see Old Chief v. United States, 519 U.S. 172, 117 S.
Ct. 644, 136 L. Ed.2d 574 (1997); Huddleston v. United States, 485 U.S.
681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988), it has not explicitly
addressed the issue in constitutional terms.
Bugh v. Mitchell, 329 F.3d 496, 512-13 (6th Cir. 2003). Because there is no Supreme
26
Court precedent barring the use of “bad acts” evidence on constitutional grounds,
Petitioner is not entitled to relief on his evidentiary claim. His disagreement with the
state court’s ruling on “bad acts” evidence involves no constitutional dimension and,
therefore, is not a cognizable claim on federal habeas corpus review. Bey v. Bagley,
500 F.3d 514, 523 (6th Cir. 2007).
Although an evidentiary ruling can violate due process and thus warrant habeas
corpus relief if the ruling was “so egregious that it result[ed] in a denial of
fundamental fairness,” Bugh v. Mitchell, 329 F.3d at 512, the Supreme Court has
“defined the category of infractions that violate ‘fundamental fairness’ very
narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990). And, for the
following reasons, the use of “bad acts” evidence in this case was not fundamentally
unfair.
In Michigan, evidence that a defendant in a criminal case committed another
sex offense against a minor is admissible “and may be considered for its bearing on
any matter to which it is relevant.” Mich. Comp. Laws § 768.27a(1). Ms. Johnson’s
testimony was relevant to show Petitioner’s scheme, plan, or system of engaging in
sexual acts with minor female relatives. As explained in more detail by the Michigan
Court of Appeals,
[t]he proper purpose of admitting the 404(b) evidence was to show
defendant’s plan or scheme to exploit young girls who were closely
27
related to him by using his position of trust in the family to take
advantage of them. The victim’s aunt testified that defendant, her father,
touched her breasts and genitals, engaged in oral sex with her, and
attempted to engage in penile penetration. Similarly, the victim testified
that her grandfather would give her “hugs and he would rub [her] back”
and that he “would touch” her “private areas.” The victim also circled
the genital area of a drawing during direct examination to indicate where
defendant had touched her. She also explained that her grandfather put
his finger in between the folds of skin on her vagina and that he “moved
[his finger] around.” The manner in which defendant would hug and put
his arm around the two victims and then proceed to touch their genitals
demonstrates a common plan or scheme. The testimony by the victim’s
aunt that her father molested her was relevant as it tended to illustrate
that defendant’s actions were a part of a common plan or scheme. See
People v. Kahley, 277 Mich. App. 182, 185, 744 N.W.2d 194 (2007)
(“Evidence of uncharged acts may be admissible to show that the
charged act occurred if the uncharged acts and the charged act are
sufficiently similar to support an inference that they are manifestations
of a common plan or scheme.”).
Dekeyzer, Mich. Ct. App. No. 281207, at 2.
Trial counsel, moreover, had an opportunity to elicit testimony that Cheryl
Dekeyzer Johnson was manipulative and dishonest and that her allegations were
retaliation for being eliminated as a beneficiary of her parents’ trust. Trial counsel
also pointed out to the jury that Petitioner was not on trial for the allegations made by
Ms. Johnson, and the trial court instructed the jury on the proper use of “bad acts”
evidence. The Court therefore concludes that Petitioner was not deprived of a fair trial
or due process of law by the admission of “bad acts” evidence. Although the evidence
was prejudicial, it was not fundamentally unfair.
28
IV. CONCLUSION
The state appellate court’s rejection of Petitioner’s claims was not contrary to
Supreme Court precedent, an unreasonable application of Supreme Court precedent,
or an unreasonable application of the facts. Habeas relief, therefore, is not warranted.
The Court DENIES the petition for a writ of habeas corpus (Docket No. 1, filed
October 20, 2011).
V. DENIAL OF A CERTIFICATE OF APPEALABILITY
Before a habeas petitioner may appeal the denial or dismissal of a habeas
petition, a certificate of appealability must issue. 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)).
Reasonable jurists could disagree with
the Court’s assessment of Petitioner’s perjury claim and the related claim about trial
counsel’s failure to object to the alleged perjury. The Court therefore grants a
certificate of appealability on those two claims. The Court declines to issue a
29
certificate of appealability on the remaining claims, because reasonable jurists could
not conclude that those issues are adequate to deserve encouragement to proceed
further.
IT IS SO ORDERED.
S/Denise Page Hood
United States District Judge
Dated: December 4, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of
record on December 4, 2013, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?