Mullins v. McKee

Filing 18

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEANDRE MULLINS,
Case Number: 2:11-CV-14678
HON. ARTHUR J. TARNOW

Petitioner,
v.
KENNETH MCKEE,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Deandre Mullins, a prisoner in the custody of the Michigan Department
of Corrections, has filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner challenges his convictions for four counts of first-degree
criminal sexual conduct, Mich. Comp. Laws § 750.520b, assault with intent to rob while
armed, Mich. Comp. Laws § 750.89, and first-degree home invasion, Mich. Comp. Laws
§ 750.110a(2). The petition raises six claims for relief. Respondent, through the
Attorney General’s Office, has filed an answer in opposition to the petition arguing that
some of the claims are procedurally defaulted and that all of the claims are meritless. For
the reasons discussed, the Court will deny habeas corpus relief.
I.

Background
Petitioner’s convictions arose from the sexual assault of N.G. at her home in

Detroit on December 26, 2007. N.G., who was 17 years old, testified that she was

awakened by a man standing over her with a knife to her throat. She screamed. He
warned her that if she was not quiet he would kill her. He ordered her to take off her
pants and underwear, which she did. He then fondled her, performed cunnilingus, forced
her to perform fellatio, and raped her. After assaulting her, the man asked her where the
money was kept. When she told him that she did not have any money, he threatened her
and warned that if she was lying he would return. After the man left, she ran upstairs to
her mother’s bedroom. N.G.’s mother called the police. N.G. was taken to the hospital
where a physical examination was performed and evidence collected for a rape kit. N.G.
picked Petitioner from a photographic lineup about a week after the rape. She testified
that she was 100% certain that the man depicted in the photograph was the man who
raped her.
Brenda Mullins, Petitioner’s mother, testified that she saw news reports in January
2008 about a series of break-ins in Detroit. She saw surveillance video of a break-in at
one of the homes. Brenda recognized her son. She encouraged him to turn himself in to
police, which he did. Petitioner was arrested. Brenda spoke to her son about the breakins and rapes. He admitted to her that he had intercourse with the women who accused
him of rape, but claimed that the acts had been consensual.
Cathy Carr was qualified as an expert in forensic biology and forensic DNA
analysis. She obtained a DNA profile from the sperm contained in N.G.’s rape kit. She
compared that to a DNA sample from Petitioner. Carr testified that the DNA profile
obtained from the rape kit samples was consistent with the DNA sample from Petitioner.
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She further testified that the likelihood of a random match in the African-American
population between the two samples was one in 1,230 quintillion.
Petitioner testified in his own defense. He testified that at the end of November
2007, he met N.G. while he was walking home. He gave her his phone number. He
testified that he and N.G. had consensual sex in her bedroom on December 26, 2007. He
denied breaking into her home.
II.

Procedural History
Petitioner was tried before a jury in Wayne County Circuit Court and convicted of

four counts of first-degree criminal sexual conduct, assault with intent to rob while
armed, and first-degree home invasion. On May 22, 2008, he was sentenced to
concurrent terms of 285 months to 60 years for the first-degree criminal sexual conduct
convictions and 285 months to 50 years for the assault with intent to rob while armed
conviction, and a consecutive sentence of 141 months to 20 years for the first-degree
home invasion conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. Appellate
counsel raised a claim that the trial court improperly admitted other acts evidence.
Petitioner filed a pro per supplemental brief raising these additional claims: trial court
improperly allowed a witness to testify after the witness violated the trial court’s
sequestration order; trial counsel was ineffective in failing to request a change of venue
and failing to move for closure of the courtroom; and the court erred in permitting the
prosecution to play a surveillance videotape. The Michigan Court of Appeals affirmed
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Petitioner’s convictions. People v. Mullins, No. 286324, 2010 WL 99003 (Mich. Ct.
App. Jan. 12, 2010). The Michigan Supreme Court denied leave to appeal. People v.
Mullins, 488 Mich. 910 (Mich. 2010).
Petitioner then simultaneously filed a habeas corpus petition and a motion to hold
the petition in abeyance while he exhausted additional claims in state court. The Court
granted a stay. Mullins v. McKee, No. 2:11-cv-14678, 2011 WL 5515313 (E.D. Mich.
Nov. 9, 2011).
Petitioner filed a motion for relief from judgment in the trial court. He raised two
claims: (i) newly discovered evidence shows that the prosecution presented perjured
testimony and withheld exculpatory evidence; and (ii) trial counsel was ineffective in
failing to seek an expert in identification. The trial court denied the motion. 3/9/2012
Opinion and Order, ECF No. 12-16. The Michigan Court of Appeals denied Petitioner
leave to appeal, People v. Mullins, No. 312358 (Mich. Ct. App. May 30, 2013), ECF No.
12-19. The Michigan Supreme Court also denied leave to appeal. People v. Mullins, 495
Mich. 913 (2013).
Petitioner returned to this Court and filed a motion to lift the stay and an amended
petition. The Court granted Petitioner’s motion and ordered Respondent to file an answer
to the amended petition. 2/17/15 Order, ECF No. 10. Respondent filed a motion to
dismiss on the ground that Petitioner failed to comply with the terms of the stay. ECF
No. 11. The Court denied the motion and ordered Respondent to file an answer to the

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petition. 8/3/15 Order, ECF No. 15. Respondent has filed an answer and the related Rule
5 materials.
The petition raises these claims:
I.

II.

One of the prosecution’s witnesses sequestered from the
courtroom heard evidence from one of the police reports and
was allowed by the judge to still take the stand.

III.

Petitioner’s trial attorney was ineffective in failing to request
a change of venue due to pretrial publicity and failing to seek
to close the courtroom in order to prevent public exposure to
information which, it was hoped, would be ruled admissible,
and defendant’s face was on the news two days before an
impromptu photo lineup was done and the jury was exposed
to pretrial publicity that was prejudicial to defendant.

IV.

The court erred in permitting the prosecution to play a
surveillance videotape for the jury.

V.

Petitioner was denied his Fourteenth Amendment right to a
fair trial where newly discovered evidence demonstrates that
the prosecution withheld exculpatory evidence thereby
committing fraud upon the court.

VI.

III.

Petitioner is entitled to a new trial where the trial court erred
in admission of other acts evidence pursuant to M.R.E.
404(b).

Petitioner was denied his Sixth Amendment right to the
effective assistance of trial counsel where counsel failed to
seek an expert in identification and to explain the
implausibility and scientific impossibility of the claims made
by the complaining witnesses.

Standard of Review
This habeas petition is reviewed under the exacting standards set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
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110 Stat. 1214 (Apr. 24, 1996). Under AEDPA, a federal court cannot grant habeas relief
with respect to any claim adjudicated on the merits in a state-court proceeding unless the
state adjudication of the claim either:
(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)(1), (2).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
quoting Williams, 529 U.S. at 413. “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, 562 U.S.86, 101 (2011),
quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the
view that habeas corpus is a guard against extreme malfunctions in the state criminal
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justice systems, not a substitute for ordinary error correction through appeal. . . . As a
condition for obtaining habeas corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in federal court 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 (internal quotation
omitted). To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). 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.

Procedural Default

Respondent argues that several of Petitioner’s claims are barred from federal
habeas review because they are procedurally defaulted. “[F]ederal courts are not required
to address a procedural-default issue before deciding against the petitioner on the merits.”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520
U.S. 518, 525 (1997). “Judicial economy might counsel giving the [other] question
priority, for example, if it were easily resolvable against the habeas petitioner, whereas
the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at
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525. In this case, the Court finds that the interests of judicial economy are best served by
addressing the merits of Petitioner’s claims.
B.

Other Acts Evidence (Claim I)

Petitioner argues that the trial court improperly admitted other acts evidence at
trial. The trial court allowed two sexual assault victims, C.M. and M.K., to testify that
they identified Petitioner as the person who broke into their respective homes and
assaulted them. The trial court also allowed Yvonne Wells to testify that she found
Petitioner in her kitchen in the middle of the night. He threatened her with a knife, but
left before he could harm her. Petitioner’s mother, with whom he often resided, lived
within walking distance of Yvonne Wells and M.K. Petitioner worked a few blocks away
from C.M.’s residence.
The Michigan Court of Appeals held that this testimony was properly admitted
under state law. The state court reasoned that “the circumstances of the other acts
evidence and the charged crimes were sufficiently similar to establish a common scheme,
plan, or system.” Mullins, 2010 WL 99003 at *2. The state court found the
circumstances presented by each incident had a “concurrence of common features”
indicative of a general plan: the uncharged and charged crimes were all committed within
the same neighborhood and occurred within walking distance of Petitioner’s mother’s and
girlfriend’s homes; the manner in which Petitioner entered or attempted to enter each
home was the same; Petitioner brandished a knife; and all of the incidents occurred at
night. Id. The Michigan Court of Appeals also noted that the trial court’s cautionary
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instruction as to the proper use of the other acts evidence limited the potential for unfair
prejudice to Petitioner. Id.
When an evidentiary ruling is “so egregious that it results in a denial of
fundamental fairness, it may violate due process and warrant federal habeas relief.” Bugh
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). See also Seymour v. Walker, 224 F.3d
542, 552 (6th Cir. 2000) (“[S]tate-court evidentiary rulings cannot rise to the level of due
process violations unless they offend[ ] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.”) (internal
quotation omitted). The Supreme Court has declined to hold that the admission of “other
acts” evidence is so extremely unfair that it violates fundamental conceptions of justice.
Dowling v. United States, 493 U.S. 342, 352-53 (1990). The Court has discussed when
other acts testimony is permissible under the Federal Rules of Evidence, see Huddleston
v. United States, 485 U.S. 681 (1988), but has not addressed the issue in constitutional
terms. Such matters are more appropriately addressed in codes of evidence and procedure
than under the Due Process Clause. Dowling, 493 U.S. at 352. “There is no clearly
established Supreme Court precedent which holds that a state violates due process by
permitting propensity evidence in the form of other bad acts evidence.” Bugh, 329 F.3d
at 512. Consequently, there is no “clearly established federal law” to which the state
court’s decision could be “contrary” within the meaning of section 2254(d)(1). Id. at 513.
Given the state court’s careful evaluation of whether the evidence supported a
common scheme or plan, the trial court’s curative instruction, and the absence of any
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clearly established Supreme Court precedent prohibiting this type of testimony, the court
cannot conclude that the admission of this evidence was unconstitutionally “egregious.”
C.

Violation of Sequestration Order (Claim II)

Petitioner next seeks relief on the ground that prosecution witness Jesse Collins
violated the court’s sequestration order. Collins entered the courtroom at some time
during the testimony of the first prosecution witness, police officer John Johnson.
Defense counsel moved to exclude Collins from testifying. The trial court briefly
questioned Collins on the record. Collins indicated that he heard approximately twenty
minutes of Johnson’s testimony. The trial court found no intentional violation of the
sequestration order. The court also found that Officer Johnson’s testimony was unrelated
to Collins’ testimony and therefore unlikely to influence Collins’ testimony. The trial
court further informed defense counsel that she could request a sidebar at any time during
Collins’ testimony if she felt his testimony was influenced by what he heard of Officer
Johnson’s testimony.
On direct appeal, the Michigan Court of Appeals found no error. The state appeals
court echoed the trial court’s conclusion that because the officer’s and Collins’ respective
testimonies were unrelated “it was unlikely that [Collins’] testimony would be ‘colored’
by the officer’s testimony or that he would attempt to ‘conform’ his testimony to the
testimony given by the officer.” Mullins, 2010 WL 99003 at *3.
There is no clearly established federal law requiring the sequestration of witnesses
or a particular remedy when a sequestration order is violated. See Pillette v. Berghuis,
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408 Fed. App’x 873, 882 (6th Cir. 2010). See also Akrawi v. Jabe, 979 F.2d 418, 423
(6th Cir. 1992) (finding no constitutional dimension to violation of sequestration order).
The Michigan Court of Appeals’ decision was based upon a careful review of the
circumstances presented and was not contrary to or an unreasonable application of
clearly-established federal law.
D.

Ineffective Assistance of Counsel Claim (Claims III & VI)

Petitioner argues that he was denied the effective assistance of counsel.
Specifically, he alleges that counsel was ineffective in failing to: (i) move for a change of
venue; (ii) move for closure of the courtroom; (iii) move to exclude testimony from a
witness who violated a sequestration order; and (iv) seek an expert in identification
testimony.
An ineffective assistance of counsel claim has two components. Strickland v.
Washington, 466 U.S. 668 (1984). A petitioner must show that counsel’s performance
was deficient and that the deficiency prejudiced the defense. Id. at 687. To establish
deficient representation, a petitioner must demonstrate that counsel’s representation “fell
below an objective standard of reasonableness.” Id. at 688. In order to establish
prejudice, a petitioner must show that, but for the constitutionally deficient representation,
there is a “reasonable probability” that the outcome of the proceeding would have been
different. Id. at 694.
The AEDPA “erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, — U.S. — , 134 S.
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Ct. 10, 16 (2013). The standard for obtaining relief is “‘difficult to meet.’” White v.
Woodall, — U.S. —, 134 S. Ct. 1697, 1702 (2014), quoting Metrish v. Lancaster, 569
U.S. —, —, 133 S. Ct. 1781, 1786 (2013). In the context of an ineffective assistance of
counsel claim under Strickland, the standard is “all the more difficult” because “[t]he
standards created by Strickland and § 2254(d) are both highly deferential and when the
two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal
citations and quotation marks omitted). “[T]he question is not whether counsel’s actions
were reasonable”; but whether “there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
First, Petitioner argues that his trial attorney was ineffective in failing to move for
a change of venue based upon community-wide sentiment against him. The United States
Supreme Court has held that a change of venue should be granted if prejudicial pretrial
publicity jeopardizes a defendant’s right to a fair trial by an impartial jury. Irvin v. Dowd,
366 U.S. 717, 722-24 (1961). Prejudice resulting from pretrial publicity can be presumed
or actual. Murphy v. Florida, 421 U.S. 794, 799 (1975). Prejudice is presumed when
adverse pretrial publicity is so pervasive or the influence of the media creates such a
“circus atmosphere” in the courtroom that “[t]he proceedings [are] entirely lacking in the
solemnity and sobriety to which a defendant is entitled in a system that subscribes to any
notion of fairness and rejects the verdict of a mob.” Id. at 799. Courts presume prejudice
in such cases because “adverse pretrial publicity can create such a presumption of
prejudice in a community that jurors’ claims that they can be impartial should not be
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believed.” Patton v. Yount, 467 U.S. 1025, 1031 (1984). Cases of presumed prejudice
from pretrial publicity are extremely rare, Campbell v. Bradshaw, 674 F.3d 578, 593 (6th
Cir. 2012), occurring only when “an inflammatory circus-like atmosphere pervades both
the courthouse and the surrounding community.” Foley v. Parker, 488 F.3d 377, 387 (6th
Cir. 2007).
The Michigan Court of Appeals found “no saturation of the community, no
widespread prejudice, and no need for a change of venue.” Mullins, 2010 WL 99003 at
*4. The Michigan Court of Appeals therefore concluded that counsel was not ineffective
for failing to file what would have been a futile motion for a change of venue. Id. The
record supports the state court’s finding. During voir dire, the prosecutor asked jurors
whether they had seen any media coverage about the case. One juror responded that he
had seen news coverage but could set aside what he had seen and decide the case based
only on the evidence presented at trial. Because a thorough voir dire was conducted and
the jurors as seated exhibited no bias, counsel was not ineffective for failing to move for a
change of venue. See e.g. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004).
Second, Petitioner challenges counsel’s failure to move to close the courtroom to
prevent public exposure of information it was hoped would be ruled inadmissible.
Petitioner fails to identify the information he hoped would be ruled inadmissible or
whether it was ultimately excluded. Absent this information, Petitioner has not
established that his attorney was ineffective in failing to move to close the courtroom. In
addition, “[t]he ability to waive a constitutional right does not ordinarily carry with it the
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right to insist on the opposite of that right.” Singer v. United States, 380 U.S. 24, 34-35
(1965). While a defendant may, under certain circumstances, waive his constitutional
right to a public trial, “he has no absolute right to compel a private trial.” Id. at 35.
Petitioner has not shown a reasonable probability that such a motion would have been
granted. Nor has Petitioner shown any specific way in which he was prejudiced by
counsel’s failure to act. Habeas relief is denied on this claim.
Third, Petitioner argues that counsel was ineffective in failing to move to exclude
testimony from Jesse Collins after he violated a sequestration order. The record directly
contradicts Petitioner’s allegation. Defense counsel sought exclusion of Collins’
testimony. As discussed above, the trial court found no basis for exclusion of the
testimony. Habeas relief is denied.
Finally, Petitioner argues that defense counsel was ineffective in failing to retain
an expert witness on identification “to explain the implausible and impossible claims
made by the complaining witness.” ECF No. 8, Pg. ID 52. “No precedent establishes
that defense counsel must call an expert witness about the problems with eyewitness
testimony in identification cases or risk falling below the minimum requirements of the
Sixth Amendment.” Perkins v. McKee, 411 F. App’x 822, 833 (6th Cir. 2011).
Counsel’s decision not to call an expert witness on identification was eminently
reasonable in light of Petitioner’s testimony that he had consensual sex with the victim. It
would have been inconsistent with Petitioner’s defense for an expert witness to question

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the victim’s identification testimony when Petitioner himself admitted he was the person
in her home. Habeas relief is denied on this claim.
E.

Surveillance Videotape (Claim IV)

Petitioner’s fourth claim for habeas corpus relief challenges the trial court’s
admission of a surveillance videotape on the ground it lacked a proper foundation. The
Michigan Court of Appeals held that the testimony of the homeowner who recorded the
videotape evidence was sufficient to lay a proper foundation under the Michigan Rules of
Evidence. Mullins, 2010 WL 99003 at *4. The Michigan Court of Appeals also rejected
Petitioner’s claim that the videotape was inadmissible hearsay. The state court found that
the conduct depicted in the videotape, an attempted breaking and entering, was not
intended by Petitioner to be an assertion and, therefore, was not a statement under the
hearsay rules. Id.
“Errors by a state court in the admission of evidence are not cognizable in habeas
corpus proceedings unless they so perniciously affect the prosecution of a criminal case
as to deny the defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d
363, 370 (6th Cir. 1994). Petitioner has failed to show that admission of the video
recording violated any right under the Constitution or denied him his right to a fair trial.
It was authenticated by the homeowner who recorded the video and the state court
reasonably concluded that Petitioner did not intend the actions depicted in the video to be
an assertion. Habeas relief is denied on this claim.

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F.

Prosecutorial Misconduct Claim (Claim V)

Petitioner next seeks habeas corpus relief on the ground that the prosecutor
improperly withheld exculpatory information and presented perjured testimony at trial
regarding identification. This claim arises from the testimony of C.M., a Rule 404(b)
witness, who testified that Petitioner sexually assaulted her on July 1, 2007. Petitioner
alleges that C.M. met with a police officer, Jose Ortiz, prior to the photographic line-up
during which she identified Petitioner as her attacker. Petitioner alleges that during that
meeting, C.M. told the officer that she never saw her assailant’s face, and that she and the
police officer colluded to falsely identify Petitioner as the perpetrator. Petitioner bases
this argument on notes written by the assistant prosecuting attorney detailing a
conversation she had with C.M. on November 16, 2009, approximately 18 months after
Petitioner’s sentencing. According to the prosecutor’s notes, C.M. admitted that she did
not see the perpetrator’s face, yet identified him at a photographic lineup and at trial.
ECF 8, Pg. ID 60-61. Further, C.M. stated that she selected the photograph of Petitioner
because she had been directed by Officer Ortiz to do so. Id. In response to this
information, the prosecutor asked that an investigation be conducted. Id. at Pg. ID 62.
The investigator interviewed C.M. and Officer Ortiz. C.M. stated that she did not meet
with Officer Ortiz prior to the photographic lineup and he did not tell her which
photograph to select. Id. at Pg. ID 63. Officer Ortiz told the investigator that he carefully
explained the photographic lineup process to C.M. because she seemed extremely
nervous. Id. at Pg. ID 64. For example, he told her that if she saw a photograph that she
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recognized, she should focus on that photograph as well as the number associated with
that photograph. Id.
On collateral review, the trial court addressed Petitioner claim that the prosecutor
failed to turn over exculpatory evidence and knowingly presented false testimony when
she allowed C.M. to testify she had seen the perpetrator’s face during the assault. The
trial court found no violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), because
C.M.’s statement to the prosecutor occurred after Petitioner was convicted and sentenced
and there was no indication that the prosecution was aware of the potential for perjury
until well after the trial. See 3/9/12 Op. & Ord. at 3, ECF No. 12-16, Pg. ID 916. The
trial court also held that C.M.’s later clarification to the investigator – that she was not
influenced by Officer Ortiz nor did she meet with him prior to the photographic lineup
and that she would have selected Petitioner photograph without regard to any remarks
from Officer Ortiz – sufficiently rebutted Petitioner’s accusations of fraudulent testimony.
Id. Moreover, the trial court also held that Mullins’ statement was bolstered by the DNA
evidence which linked him to the assault on C.M. Id.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,
477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37, 44 (2012). In Darden, the
Supreme Court held that a “prosecutor’s improper comments will be held to violate the
Constitution only if they ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id., quoting Donnelly v. DeChristoforo, 416 U.S.
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637, 643 (1974). This Court must ask whether the Michigan Court of Appeals’ decision
denying Petitioner’s prosecutorial misconduct claims “‘was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Parker, 567 U.S. at 47, quoting Harrington,
562 U.S. at 103. To establish prosecutorial misconduct in the context of presenting false
testimony, a petitioner must show: (1) the statement was actually false; (2) the statement
was material; and (3) the prosecution knew it was false. Brooks v. Tenn., 626 F.3d 878,
894-95 (6th Cir. 2010).
On habeas review, this Court does not determine whether this Court would have
reached the same conclusion. Instead, the Court considers whether the trial court’s
decision was so lacking in justification as to constitute a denial of due process. The trial
court’s conclusion that C.M.’s statement to the investigator alleviated the concern that her
trial testimony was perjured was a reasonable one. Her explanation coupled with Officer
Ortiz’s statement to the investigator, the strong DNA evidence, and the consistency of the
other victims’ stories support the trial court’s conclusion that C.M.’s testimony was not
fraudulent. In addition, the trial court correctly held that the prosecutor did not violate
Brady by withholding exculpatory evidence because there is no indication that the content
of C.M.’s post-trial statement to the prosecutor was known to the prosecutor before the
trial. Habeas corpus relief is denied on this claim.

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V.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A COA
may be issued “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 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation omitted). In this case, the Court concludes that reasonable jurists would not
debate the conclusion that the petition fails to state a claim upon which habeas corpus
relief should be granted. Therefore, the Court will deny a certificate of appealability.
VI.

Conclusion
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is

DENIED. Furthermore, the Court DENIES a certificate of appealability. The Court finds
Petitioner may proceed on appeal in forma pauperis because an appeal could be taken in
good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.

Dated: January 9, 2017

S/Arthur J. Tarnow
Arthur J. Tarnow
United States District Judge

I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on
January 9, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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