Martin v. Mckee

Filing 14

AMENDED 12 OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, and Granting a Partial Certificate of Appealability. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD MARTIN,
Petitioner,

Case Number 2:11-CV-15034
Honorable Gerald E. Rosen

KENNETH MCKEE,
Respondent.
____________________________________________/
AMENDED 1 OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND GRANTING A
PARTIAL CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner Ronald Martin’s petition for a writ of habeas
corpus filed under 28 U.S.C. § 2254. On June 30, 2009, Petitioner was sentenced to five concurrent
terms of 15-to-30 years for his conviction of five counts of first-degree criminal sexual conduct,
MICH. COMP. LAWS § 750.520b, and four concurrent terms of 8-to-15 years for his conviction of four
counts of second-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520c. The petition
challenges his convictions on three grounds: (1) Petitioner was deprived of the effective assistance
of trial counsel; (2) the trial court violated Petitioner’s rights to confrontation and present a defense
by excluding evidence regarding the complainant’s prior sexual history; and (3) the trial court
incorrectly scored the sentencing guidelines. The Court finds that the state court adjudication of the
claims fairly raised in the state courts and raised in the petition did not run contrary to, or involve
an unreasonable application of, clearly established Supreme Court law. Therefore, the petition will
be denied. The Court will, however, grant Petitioner a certificate of appealability with respect to his
first and second claims.

1

A draft version of the Opinion and Order filed on June 24, 2013 was entered in error.

I. Introduction
In this troubling case, Petitioner was failed by both his state trial and appellate counsel. Trial
counsel’s inaction resulted in the loss of an opportunity to have the trial court make a final and
definitive ruling on the admissibility of critical defense evidence, and appellate counsel’s omissions
prevented the state appellate courts from considering potentially meritorious issues. Because of the
exhaustion requirement, however, counsels’ actions also prevent this Court from addressing what
should be the central issue in this case: whether Petitioner was denied his constitutional right to
present a defense.
The charges against Petitioner involved allegations that he engaged in sexual activity with
his fifteen-year-old daughter. As is often the case, the outcome of his trial hinged largely on the
credibility of the complainant. To attack her credibility, and to provide a motive for a false charge
of rape against Petitioner, Petitioner wanted to present evidence that the complainant falsified the
charges against him because he had threatened to report and jail her adult-aged boyfriend for having
sex with her. The record further shows that the complainant did not make her allegations against
Petitioner until after Petitioner had confronted her about her alleged sexual relationship with this
older male. A pretrial hearing was held on the admissibility of this evidence, after which the trial
court did not make a final ruling. Rather, the trial court denied Petitioner’s motion to present this
evidence without prejudice, and it stated that it would revisit the issue after the prosecutor rested its
case. The trial court provided no detail or explanation for its decision. For reasons that are not
disclosed in the record, however, the issue was never revisited at trial.
To make matters worse, Petitioner’s appellate counsel never informed the Michigan Court
of Appeals that the trial court indicated that it would automatically revisited the issue at trial.

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Instead, appellate counsel seems to have mistakenly assumed that the trial court’s initial order was
a final one, and simply argued that the pretrial motion was improperly denied. Appellate counsel did
argue that trial counsel was ineffective for failing to raise the issue again at trial, but only on the
narrow basis that two prosecution witnesses had effectively opened the door, and thereby created
a new basis to present the defense evidence that did not exist before. This assertion was belied by
the record. The witnesses did not testify to the facts appellate counsel claimed they did. Missing the
larger, more critical issue, appellate counsel never argued that trial counsel was ineffective for
failing to revisit the request to present Petitioner’s evidence of motive for the simple reason that the
trial court said that it would. The state appellate court was simply never informed of this rather
significant fact.
These failures had numerous adverse consequences for Petitioner. First and foremost,
Petitioner’s jury never heard this defense of motive to falsify – probably his strongest defense.
Second, the trial court was never given the opportunity to rule with finality on the admissibility of
this defense evidence. Lastly, the Michigan Court of Appeals was not squarely presented with
potentially meritorious claims. The Court is therefore presented with a case in which it is likely that
a defendant’s right to present his potentially strongest defense was lost through the ineffectiveness
of trial and appellate counsel. But, because these potentially meritorious arguments were not first
presented to the state courts, and are thus unexhausted -- and because they do not even appear to be
explicitly raised in the instant petition -- the Court must deny the relief requested in the petition.
II. Facts and Procedural History
As indicated, prior to trial, Petitioner’s counsel filed a motion seeking permission to admit
evidence that the complainant was in a sexual relationship with an eighteen-year-old boy. A hearing

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was held on this motion on February 18, 2009. At the hearing, defense counsel acknowledged that
Michigan’s rape shield statute generally prohibits testimony of prior sexual conduct by the
complainant and that the two statutory exceptions did not apply to Petitioner’s case. He asserted,
however, that such evidence is admissible where the defendant is attempting to show the
complaining witness’s bias or ulterior motive for making a false charge.2
Defense counsel explained that from the time the complainant was fifteen years old, she was
having consensual sex with someone named “Stephen,” who was three or four years older than her.
He noted that the existence of this relationship was known by the complainant’s mother, friends, and
uncle. Defense counsel stated that Petitioner confronted the complainant about the relationship and
warned her that if she did not stop having sex with Stephen that he would call the police. Petitioner
asserts that the complainant’s concern that he would jail Stephen created a motive for her to falsely
accuse Petitioner.
Counsel stated he was sensitive to the public interest underlying the rape shield statute. So
rather than embarrass the complainant by cross-examining her on the subject, defense counsel
suggested that the parties enter into a stipulation that the complainant had sexual contact with
Stephen and that Petitioner confronted her about it. Defense counsel further noted that Petitioner was
only fourteen years old when the complainant was conceived, and his regret at becoming a father
2

Unlike FED. R. EVID. 412(b)(1)(C), Michigan’s rape shield law does not contain an explicit
exception permitting evidence of the complainant’s prior sexual history when the exclusion of such
evidence would violate the defendant’s constitutional rights. See MICH. R. EVID. 404(a)(3); MICH.
COMP. L. § 750.520j. In People v. Hackett, 421 Mich. 338 (1984), however, the Michigan Supreme
Court held that the admissibility of evidence of the complainant’s prior sexual history is within the
discretion of the trial court where the defendant's right to confrontation is implicated. The court held
that upon a showing by the defendant that the evidence offered is relevant for the preservation of
the defendant's right to confrontation, the trial court must order a hearing in camera to determine the
admissibility of such evidence.
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at such a young age supported his strong reaction when he learned that his daughter might make the
same mistake.
The prosecutor responded that the evidence should nevertheless be excluded because defense
counsel’s rationale created a “slippery-slope” that would apply in any case in which in under-aged
complainant had a prior sexual history. Nevertheless, the prosecutor stated that she had no objection
to Petitioner offering evidence that he had a “father-daughter talk” about engaging in sexual
relations at her age and her defiant reaction, without stating that she had in fact had sex with
someone else. Defense counsel considered the offer, but he stated “I just think it’s important that we
stipulate that she’s had sex with this kid and that’s why my client confronts her. I mean . . . if he’s
confronting her, without knowing that she’s had sex, that doesn’t make any sense.” T 2/18/09, p 12.

The trial court did not give any indication at all during the hearing regarding its view of the
admissibility of the proffered defense evidence. In fact, it did not engage or question either party
during the pretrial hearing at all. At the close of the hearing the court took the matter under
advisement. On March 2, 2009, the court issued a form order stating only that the motion was
“denied without prejudice. The Court will revisit the issue after hearing the prosecution’s evidence
at trial.” However, neither the trial court nor defense counsel raised the issue again at trial.
With respect to the evidence presented at trial, this Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
The complainant was age 16 at the time of trial in May 2009. Martin is the
complainant’s father. He and the complainant’s mother were never married and do
not live together. The complainant lives with her mother and would normally visit
her father on weekends. The complainant testified that the first time Martin did
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something inappropriate to her was in mid-January to early-February 2008. She
stated that he grabbed the front of her pants and pulled her towards him. Later in
February, Martin came into the room of the complainant’s sister where the
complainant was watching television, laid down next to her, and began touching her
breasts on top of her bra. He eventually stopped but stayed in the bed with her. The
complainant acknowledged that there were other beds available, but she stayed in the
bed with Martin. At the end of February, she told her friend, OR, about this incident.
In March or April 2008, Martin, the complainant, and her younger sister
stayed at a Holiday Inn. The complainant testified that, just after her sister left the
room to go to the swimming pool, Martin took the complainant by the arms and
pulled her towards him. The front of their bodies touched, and he tried to kiss her.
Later that night, Martin lay down next to the complainant while her sister was in the
other bed. He touched the complainant’s breasts underneath her bra, put his hand
down her shorts, and digitally penetrated her vagina. Martin then followed her into
the bathroom, took off her shorts and his boxers, put her on the counter, and
penetrated her vagina with his penis.
On cross-examination, the complainant testified that Martin had been in the
bathroom and as he was walking out, she was walking in, and he then followed her
back in. However, her testimony at the preliminary exam indicated that he had not
been in the bathroom first. In a prior statement given to Amy Allen at Care House,
the complainant said that she and her sister were in the same bed, that Martin moved
her sister to the other bed, and then he got in bed with the complainant and
penetrated her. She explained the discrepancy by saying that she must have mixed
up the events. She acknowledged that she continued to visit Martin after the hotel
incident, even though she was afraid he might rape her again, because she still
wanted to see her dad.
During the summer of 2008, Martin was going through a divorce and began
living with his brother, Don Martin. Martin occupied the guest bedroom in Don
Martin’s house. When the complainant stayed overnight with Martin, they slept in
the same bed. The complainant said that she could not sleep on the couch because
it hurt her back. On one occasion, she got into bed after Martin was already in bed.
He touched her breast underneath her bra. She claimed that he then removed her
shorts and asked her to remove her shirt. When she declined to do this, Martin took
off his boxers and then penetrated her vagina with his penis.
Also during the summer of 2008, while the complainant was staying at her
grandmother’s house, Martin followed her into the bedroom and touched her breast
underneath her bra. She initially said that he stopped and left when her sister came
into the room to go to bed. On cross-examination, however, she said that he stayed
in the room after her sister got in bed and resumed the inappropriate touching after
her sister went to sleep. Also, she contradicted herself with regard to the timeframe,
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stating that this happened at the end of Spring 2008.
The complainant testified that, on a subsequent occasion at Don Martin’s
house, Martin joined her while she was in the shower. He pulled her towards him and
his chest was touching her breasts. He asked if she wanted him to get out; he left
when she said yes. She then finished her shower. When she went to the bedroom to
get dressed, he was also getting dressed. At that moment, her sister called, asking to
be picked up. After the phone call, Martin penetrated the complainant’s vagina with
his penis. This time he wore a condom. On cross-examination, the complainant said
that she got dressed in the bedroom, whereas at the preliminary examination she said
that she got dressed in the bathroom. Also, she said that Martin was in the kitchen
when she initially entered the bedroom. She also stated that he stopped because of
the phone call.
Toward the end of August 2008, the complainant went to a birthday party
with Martin and then returned to Don Martin’s house with him. She got in bed, and
Martin joined her. She claimed that he then penetrated her vagina with his penis.
Although she saw Martin after this incident, this was the last time the abuse
occurred. The complainant had previously told Amy Allen of Care House that
everything started after Martin moved in with Don Martin. She also told Allen that
two of the rapes occurred in her bunk bed. The bunk bed arrived at Don Martin’s
house in August 2008.
In October 2008, the complainant told her boyfriend, CH, about what
happened. Two days later, she told her best friend, OR, the full story as well. The
complainant said that she finally told someone because she did not want to have to
keep visiting Martin and did not want the same thing to happen to her sister. She
could not explain why she waited until October. She said that OR told her she had
to tell someone about the abuse. They decided to tell OR’s mother, CR. CR is also
the complainant’s godmother. OR was the one that actually told CR about what
happened, but the complainant responded to questions. The three of them then told
the complainant’s mother.
On cross-examination of the complainant, defense counsel established that
she had incorrectly told her mother that all four incidents of intercourse happened at
Don Martin’s house. Further, defense counsel established that during the time period
of the assaults, the complainant had visited Martin more often than she previously
had. The two of them had done many activities together, such as going to Cedar
Point and Michigan Adventure. Although the complainant claimed that she went to
Don Martin’s home to see her sister, she stayed even when her sister was not there.
Also, the complainant chose to stay with Martin even though she had the option to
go to her grandmother’s house. The complainant had also testified on Martin’s behalf
when a personal protection order was sought regarding visitation rights for her sister.

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Further, defense counsel established that, in October 2008, Martin had
refused the complainant’s request that she be put on his cell phone plan. She made
her allegations of sexual abuse shortly after their argument. The complainant wanted
to be on Martin’s phone plan because it would have been easier and cheaper to talk
to her friends. She claimed that he put her off, saying that he would wait to look at
her grades. Despite this testimony, the complainant maintained that, other than the
touching and rapes, there was nothing that was making her angry with Martin during
the relevant period.
In his affidavit, Martin claimed that he agreed to put the complainant on the
cell phone plan if her grades improved and she stopped seeing SC. Martin claimed
that SC, 18 years old at the time, was having sexual relations with the complainant.
Martin and the complainant got into numerous arguments over her relationship with
SC. In the spring of 2008, Martin told the complainant that he did not approve of her
seeing SC. In the summer of 2008, Martin again told the complainant not to see SC
anymore. Martin also threatened to report SC to the police if the complainant did not
stop seeing him. Martin made a similar threat at the end of the summer of 2008.
Before trial, Martin sought to have evidence of the complainant’s relationship with
SC admitted into the record. But the trial court precluded the evidence on the basis
of the rape shield law.
The complainant’s mother testified that the complainant was upset and crying
when she told her about what was happening with Martin. Her mother said that the
complainant had told her that sexual intercourse had occurred on four occasions,
each time at Don Martin’s house. She said that during the relevant time period, the
complainant would insist on going to Don Martin’s home. The complainant never
indicated that she did not want to go. After the complainant’s disclosure regarding
the abuse, her mother took her to see her pediatrician, Dr. Stacy Gorman.
Dr. Gorman testified that the complainant told her that Martin had forced her
to have sexual intercourse four times since February 2008. Dr. Gorman took a patient
history, which she said was necessary for treatment to know what happened and who
was responsible. Dr. Gorman subsequently recommended counseling for the
complainant. However, she did not perform a pelvic examination on the complainant.
She explained that she did not perform a pelvic examination because the complainant
had already had one in August 2008. Dr. Gorman further explained that she did not
feel the need to repeat the exam because the complainant told her that August was
the last time any sexual abuse had occurred.
After seeing Dr. Gorman, the complainant went to the Waterford Police
Department and then to Care House, where Amy Allen conducted a forensic
interview. Without objection, Allen was qualified as an expert in forensic
interviewing, as well as on characteristics of children who report sexual abuse. Allen
stated that she followed a forensic interviewing protocol that involved open-ended
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questions. In essence, she testified that it was not unusual for adolescents to delay
reporting sexual abuse by a family member. Further, she said that it would not be
unusual if one did not see outward signs of abuse. She also said it would not be
unusual for a victim to show no fear. She explained that compliance might result
because of the body’s response to the abuse or because the child did not know how
to make it stop. Allen also said that a child might return to the abuser because of a
desire to protect someone else and might stay even if the person to be protected is not
present because of compliance with the abuser. She explained that people change
details when remembering traumatic events. Further, she said that a victim’s
motivating factor in reporting abuse was most often to make it stop, not trigger
prosecution.
On cross-examination of Allen, defense counsel established that there were
some similarities among child sexual abuse victims. Defense counsel further
established that the complainant had not run away from home, did not use drugs, did
not have poor hygiene, and was not underweight or overweight. Allen clarified,
however, that an abused child could have really poor or extremely good hygiene, and
really poor or extremely good grades. Allen did not know if the complainant suffered
from low self-esteem. Defense counsel called into question that a 14-or 15-year-old
child would withhold reporting abuse because he or she was close to independence.
Further, defense counsel ascertained that Allen was not assessing truthfulness. Allen
told the defense counsel that, in embellishing a story, a 15-year-old child would
likely focus on what should have been done, like fighting the molester. Allen also
acknowledged that inconsistent stories might result from blending events or from
outright lying. Further, defense counsel established that Allen could not tell the
difference between when a child was lying and when a child was changing the story
based on more legitimate factors.
On a redirect examination, Allen testified that an investigator tries to develop
alternative explanations for why a child is making the statement. She explained that
when younger children are involved, an alleged touching could be for hygienic
purposes. Allen did not speak to alternative hypotheses in this case. Yet, she
explained that her team ruled out any alternative hypotheses for the complainant.
People v. Martin, No. 293129, 2011 WL 445806, at *1-4 (Mich. Ct. App. Feb. 8, 2011).
Based on this evidence the jury found Petitioner guilty as indicated above. After sentencing,
Petitioner obtained appellate counsel who filed a motion for new trial. The motion asserted that
Petitioner was denied the effective assistance of trial counsel. Among other arguments, the motion
alleged that trial counsel’s pretrial motion was ineffectively presented. The motion also asserted that

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the trial testimony of the complainant’s physician, Dr. Gorman, and the Care House worker, Amy
Allen, created a new basis that defense counsel should have used to renew his motion for
presentation of the complainant’s sexual history. Significantly, the motion did not assert that trial
counsel was ineffective for failing to renew his motion on the basis of the language of the trial
court’s initial order, which stated that it would reconsider the matter at the close of the prosecution’s
case as a matter of course.
On January 5, 2010, the trial court issued an opinion and order denying the motion for a new
trial. The court found that trial counsel adequately and effectively presented his pretrial motion.
However, the court did not discuss Petitioner’s claim that counsel was ineffective for failing to
renew the issue regarding the admission of the complainant’s sexual history at trial.
Petitioner then filed a brief in the Michigan Court of Appeals that raised the following
claims:
I. [Petitioner] was deprived of the effective assistance of counsel where defense
counsel failed to litigate fully or properly request to introduce evidence excepted
under the rape shield statute; where counsel failed to secure complainant’s medical
records; where counsel failed to secure the testimony of a responsive expert on the
issue of the characteristics of child sexual abuse victims; and where counsel failed
to object to inadmissible hearsay.
II. The trial court’s pre- and post-trial rulings rejecting [Petitioner’s] rape shield
challenge were an abuse of discretion, and deprived [Petitioner] of his right to
confront the witnesses and the right to present a defense, where the court excluded
material evidence of the complainant’s sexual history and motive to fabricate despite
the prosecution’s introduction of medical testimony of the complainant’s earlier
pelvic examination and expert testimony that the Care House “team” had ruled out
alternative hypothesis for the complainant’s allegations.
III. The trial court erroneously scored OV8, OV13, and PRV7, and also violated
[Petitioner’s] due process rights at sentencing by scoring the guidelines for reasons
not proven to the jury beyond a reasonable doubt, in violation of the Sixth and
Fourteenth Amendments.

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Again, with respect to his first issue, Petitioner did not mention or argue that the trial court’s
pretrial order stated that it would revisit the admissibility of the defense evidence after the
prosecution rested. Rather, his claim relied on the fact that Dr. Gorman and Allen opened the door
to the defense evidence with their testimony. On February 8, 2011, the Michigan Court of Appeals
issued an unpublished per curiam opinion affirming Petitioner’s convictions. Id. The court found
that the prosecution witnesses did not testify to the facts that Petitioner claimed opened the door to
the defense evidence, and therefore there was no new basis for admitting the sexual history evidence.
The court did not address the propriety of the trial court’s initial ruling.
Petitioner filed an application for leave to appeal in the Michigan Supreme Court that raised
the same claims. The Michigan Supreme Court denied the application because it was not persuaded
that the questions presented should be reviewed. People v. Martin, 489 Mich. 975 (2011) (table).
Petitioner then commenced the instant action, raising the same three claims he presented to
the state courts during his direct appeal.
III. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if
he can show that the state court’s adjudication of his 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).
A decision of a state court is “contrary to” clearly established federal law if the state court
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arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[a] federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the
doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)((quoting Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997); 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. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories
supported or...could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision” of the Supreme Court. Id. “[I]f this standard is difficult to meet, that is

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because it was meant to be.” Harrington, 131 S. Ct. at 786.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal
courts from relitigating claims that have previously been rejected in the state courts, it preserves the
authority for a federal court to grant habeas relief only “in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with” the Supreme Court’s
precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens,
J., concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id., at 786-787.
IV. Analysis
A. Ineffective Assistance of Counsel
Petitioner’s first claim asserts that he was deprived of the effective assistance of trial counsel.
Specifically, he alleges his counsel: (1) failed to effectively seek admission of the complainant’s
sexual history to show her motive to falsely accuse Petitioner; (2) failed to secure the complainant’s
medical records; (3) failed to present expert testimony on the characteristics of child sexual abuse
victims; and (4) failed to object to inadmissible hearsay. Respondent asserts that the claims were
reasonably adjudicated by the state courts.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth
a two-prong test for determining whether a habeas petitioner has received ineffective assistance of

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counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must
establish that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have
been so serious that they deprived the petitioner of a fair trial or appeal. Id.
As to the performance prong, Petitioner must identify acts that were “outside the wide range
of professionally competent assistance” in order to prove deficient performance. Strickland, 466
U.S. at 690. The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at
689. Counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. at 690. Petitioner bears the burden
of overcoming the presumption that the challenged actions were sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, Petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is one that is
sufficient to undermine confidence in the outcome. Id. “On balance, the benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Id. at 686.
The Supreme Court has confirmed that a federal court’s consideration of
ineffective-assistance-of-counsel claims arising from state-criminal proceedings is quite limited on
habeas review due to the deference accorded trial attorneys and state-appellate courts reviewing their
performance. “The standards created by Strickland and [section] 2254(d) are both ‘highly

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deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S.Ct. at 788
(internal and end citations omitted). “When [section] 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard. Id.
1. Failure to effectively seek admission of complainant’s sexual history
Petitioner first asserts that his trial counsel did not effectively seek admission of evidence
of the complainant’s sexual history with Stephen. Petitioner argues that the complainant had a sexual
relationship with Stephen when she was a minor and Stephen was an adult. He states that he
objected to the relationship and threatened to inform the police about it if she continued to see him.
According to Petitioner, the dispute came to a head in October of 2008 during an argument where
Petitioner threatened to put on Stephen in jail and refused to put the complainant on his cell-phone
plan unless she promised to stop contacting him. It was immediately after this argument that
Petitioner asserts the complainant made the false allegations against him. Petitioner also argues that
his trial counsel should have renewed the motion to admit this evidence on the narrow grounds that
the testimony of two prosecution witnesses created a new basis for admitting the evidence.3
The Michigan Court of Appeals rejected the claim as follows:
Martin argues that defense counsel provided ineffective assistance by
inadequately arguing for the admission of evidence pertaining to the complainant’s
prior sexual experience with SC. However, we find no merit to this argument
because, as the trial court found, defense counsel did not engage in deficient conduct
where he did in fact “argue[] for admission of the [complainant’s] prior sexual
3

Petitioner also seeks an evidentiary hearing in this Court to establish a factual basis for his
allegations of ineffective assistance of counsel. However, because the state courts adjudicated all
of Petitioner’s ineffective assistance of counsel claims on the merits, he is barred from expanding
the record in this action. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)(habeas review is
“limited to the record that was before the state court.”)
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conduct with an older boy named [SC] to show bias and because it might be
probative of the victim’s ulterior motive in making a false charge.” Again, defense
counsel has wide discretion regarding matters of trial strategy. n16 And the fact that
Martin’s current counsel would have handled the argument differently does not
support a conclusion that the former counsel’s handling of the case was deficient.
Defense counsel is not ineffective where he raises an argument, albeit
unsuccessfully. n17
FOOTNOTES
n16 Odom, 276 Mich.App. at 415.
n17 See People v. Weatherford, 193 Mich.App. 115, 122 (1992).
Martin also argues that defense counsel should have presented the motion
again following Dr. Gorman’s and Amy Allen’s testimonies. However, their
testimonies did not give rise to the inferences that Martin posited. There was no basis
for inferring that the complainant’s hymen was or was not ruptured. Dr. Gorman
simply did not speak to the issue. Similarly, Allen testified that investigators
generally try to develop alternative hypotheses. She did not speak one way or the
other regarding whether there were any other hypotheses in this case. Given these
considerations, there is no indication that a renewed motion would have been
successful. In fact, the trial court’s opinion implies that it would have denied a
renewed motion. Accordingly, defense counsel was not ineffective, neither for his
initial arguments nor for failing to renew the motion.
Martin, 2011 WL 445806, *13-15.
As Petitioner correctly notes, the written motion to present the sexual history evidence was
brief and did not include a complete version of the defense theory. But at oral argument on the
motion, defense counsel fully and competently laid-out his argument for presentation of this
evidence. As indicated above, defense counsel explained at the hearing that from the time the
complainant was fifteen years old, she was in a sexual relationship with Stephen, and her family
members were aware of the relationship. Defense counsel stated that Petitioner confronted the
complainant about it and threatened to jail Stephen if she continued to have sex with him, creating
a motive for her to falsely accuse Petitioner to protect Stephen.

-16-

Counsel offered to enter into a stipulation that the complainant had sexual contact with
Stephen and that Petitioner confronted her about it. Defense counsel further noted that Petitioner was
only fourteen years old himself when the complainant was conceived, and his regret at becoming
a father at such a young age supported his strong reaction when he learned that his daughter might
make the same mistake.
Therefore, with respect to defense counsel’s presentation of the initial motion, the record
shows that he forcefully and effectively moved for admission of the prior sexual conduct evidence.
Petitioner makes much of the fact that counsel’s written motion contained virtually no detail, but
there can be little doubt that his oral argument for admission of the evidence fully and effectively
articulated the defense theory and the facts on which they were based. Petitioner’s current counsel
asserts that the argument could have been made more forcefully, but it appears the complaint is more
one of style rather than substance. There is nothing objectively deficient about an attorney filing a
terse motion, but then filling in the details at the hearing on the motion. Petitioner’s trial counsel did
not omit any essential factual or legal basis for the motion at the hearing. Indeed, he forcefully
argued for admission of the evidence and came prepared with a compromise that apparently caught
the prosecutor off-guard. And in fact, it appears that the presentation of the motion was effective
enough that the trial court did not deny it with finality. Rather, it only denied the motion without
prejudice and stated that it would revisit the issue at trial. There are countless ways an attorney
might have effectively styled his argument for admission of this evidence, and the Court cannot say
that Petitioner’s counsel’s method was deficient. Accordingly, the Michigan Court of Appeals’
conclusion was not objectively unreasonable. Petitioner has not demonstrated entitlement to habeas
relief based on this allegation of ineffective assistance of counsel.

-17-

Petitioner also asserts that his defense counsel should have renewed the motion on the
narrow grounds that the testimony of the complainant’s physician, Dr. Gorman, and Amy Allen of
Care House, created a new basis for admitting the defense evidence. Petitioner does not assert in his
petition the more general claim that trial counsel was ineffective for failing to renew the motion on
the ground that the language of the trial court’s pretrial order indicated that the pretrial motion was
only denied without prejudice. Addressing the narrow issue fairly raised by Petitioner’s appellate
brief, the Michigan Court of Appeals found counsel was not ineffective because neither Dr. Gorman
nor Amy Allen testified to the facts Petitioner claimed they did.
Dr. Gorman testified that she examined the complainant in October of 2008. When asked if
she performed a pelvic exam, Dr. Gorman responded that she did not do so because one had already
been performed at an earlier appointment in August of 2008. Petitioner argues that this testimony
created the impression that Dr. Gorman knew the complainant was already sexually active in
August, and that since no other sexual partner was suggested to the jury, it amounted to testimony
that there was physical evidence that the complainant had sexual relations with Petitioner.
Allen testified that as part of the interview process at Care House, the staff attempt to
determine whether there were “alternative hypotheses” to explain the allegations. Petitioner asserts
that Allen suggested that her team ruled out any alternatives. Petitioner argues that this testimony
highlighted the need for evidence of an alternative hypothesis: that the complainant had a motivation
to falsely accuse Petitioner in order to protect Stephen from going to jail.
The Michigan Court of Appeals decision finding defense counsel not ineffective for failing
to renew the motion on this basis was reasonable. Dr. Gorman’s testimony in no way suggested that
her examination revealed that the complainant had been sexually active. She testified that a pelvic

-18-

examination had been performed in August of 2008, but there was no testimony or suggestion as to
what that examination revealed. In fact, Dr. Gorman testified that it was her partner who had
performed the pelvic exam.
With respect to Allen’s testimony, Petitioner’s argument is insensitive to the facts. Allen
testified that, in general, part of the forensic interview process is to consider alternative hypotheses
so that the interviewer enters the interview with an open mind. She did not testify or suggest that she
or the Care House team had ruled-out an alternative hypothesis in Petitioner’s case. The Court notes
that the Michigan Court of Appeals stated in its recitation of the facts that Allen had ruled-out an
alternative hypothesis, but the Court has found no such testimony or suggestion in its review of the
trial transcripts, nor do the parties cite to any such testimony in the trial record. Rather, Allen
testified during cross-examination that she did not know whether any particular child’s story was
true or whether a child was flat-out lying. She testified that she was not expressing any opinion on
the complainant’s truthfulness. Therefore, contrary to Petitioner’s argument, Allen did not suggest
that alternative hypotheses had been ruled out.
Accordingly, the testimony of Dr. Gorman and Allen did not give defense counsel any new
compelling reason to argue for the admission of the defense evidence that did not exist prior to trial.
The Michigan Court of Appeals’ conclusion that defense counsel did not performe deficiently by
failing to renew his motion on this specific basis was therefore not objectively unreasonable.
2. Failure to secure complainant’s medical records and object to hearsay
Petitioner next claims that his trial counsel was ineffective for failing to obtain the
complainant’s medical records. He also alleges that Dr. Gorman’s testimony that the complainant
identified Petitioner as the person who sexually assaulted her was improperly admitted under

-19-

Michigan Rule of Evidence 803(4). The Michigan Court of Appeals rejected these allegations on
the merits as follows:
Martin further argues that defense counsel was ineffective for failing to
challenge Dr. Gorman’s claim that the complainant had reported that he was the
perpetrator.
Defense counsel did not object when Dr. Gorman testified that the
complainant identified Martin as her sexual assailant. However, the trial court
concluded that the testimony was admissible since Gorman testified that it was
necessary for medical diagnosis and treatment.18 And such statements are deemed
inherently trustworthy because of a patient’s self-interest in receiving proper care.19
Thus, even had defense counsel made the objection, the trial court would have denied
it. And, as noted, futile objections are not required.20
FOOTNOTES
18 MICH. RULE EVID. 803(4); People v. Meeboer, 439 Mich. 310, 322 (1992).
19 Meeboer, 439 Mich. at 322-323; People v. Crump, 216 Mich.App. 210, 212
(1996).
20 Davenport, 286 Mich.App. at 199.
Martin also argues that defense counsel should have secured Dr. Gorman’s
medical records, as they may have identified an alternate source of the complainant’s
medical condition. We disagree. Regarding the medical records, the trial court noted
that defense counsel had been given the medical record concerning the October visit.
And Martin failed to show that a request for the earlier records would have been
successful given their privileged nature. The issue was not whether the complainant
had previously had sexual intercourse, but whether the evidence would have been
admissible to support Martin’s defense. Thus, because Martin has only offered
speculation regarding how the records would have been relevant in that respect,
counsel was not ineffective for failing to request the earlier medical records.
Martin, 2011 WL 445806, *15-16.
This decision was reasonable. In its order denying Petitioner’s motion for new trial, the trial
court made a finding of fact that, contrary to Petitioner’s allegations, the medical records from the
October appointment had been provided to defense counsel. A state court’s factual determination

-20-

is entitled to a presumption of correctness on federal habeas review. 28 U.S.C. § 2254(e)(1). A
petitioner may rebut this presumption, but only if he offers clear and convincing evidence that the
factual determination was incorrect. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Petitioner has not presented this Court with any evidence, let alone clear and convincing evidence,
that defense counsel did not have the medical records at issue.
Petitioner’s argument is also based on unfounded speculation. Petitioner theorizes that the
complainant must have identified a person other than him as having sexual relations with the
complainant during her August doctor appointment. Dr. Gorman testified, however, that the
complainant identified Petitioner as having molested her during the October appointment, and that
the allegation was promptly reported to the authorities. Dr. Gorman did not testify that the
complainant made any allegations of sexual activity during her August examination. Dr. Gorman
merely testified that during the October examination the complainant stated that the last molestation
by Petitioner happened in August, and that was the reason she did not feel it was necessary to
perform another pelvic examination. Accordingly, Petitioner’s statement that the complainant “must
have identified a different perpetrator in August,” (Petition, p. 16), results from a misunderstanding
of Dr. Gorman’s testimony.
With respect to counsel’s failure to object to Dr. Gorman’s testimony that the complainant
identified Petitioner, Petitioner cannot show that the trial court would have sustained an objection.
The Michigan Court of Appeals found that the testimony was admissible as a matter of state law
under Michigan Rule of Evidence 803(4) as interpreted in People v. Meeboer, 439 Mich. 310, 322
(1992). This Court may not second-guess that determination of state evidentiary law. Alleged errors
in the application of state evidence law are not cognizable as grounds for federal habeas relief. See

-21-

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”). This is because the state courts are
the final arbiters of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). A state court’s
determination that a particular piece of evidence is or is not admissible as a matter of state
evidentiary law is therefore binding on a federal habeas court. See McGuire, 502 U.S. 62, 67-68.
Accordingly, Petitioner’s argument that his counsel should have objected to Dr. Gorman’s testimony
that complainant identified Petitioner as the person who molested her is foreclosed by the state
court’s holding that the testimony was admissible.
3. Failure to present expert testimony
Petitioner next asserts that his trial counsel was ineffective for failing to present an expert
witness to rebut Allen’s testimony regarding alternative hypotheses. Petitioner alleges that his threat
to jail Stephen is exactly the type of alternative hypotheses that should have been considered in a
forensic interview, and he suggests that if Allen had been informed of those facts, the case might not
have been referred for prosecuted. Petitioner has attached an affidavit from Katherine Okla, a
clinical psychologist, who states that in her opinion there “were multiple factors which undermine
the reliability of the complainant’s testimony in this case,” and “there was information presented by
the prosecution through expert witness testimony which should have been countered through a
rebuttal witness for the defense.” Okla Affidavit, p 2. The affidavit goes on to detail Okla’s
perceived problems with Allen’s testimony.
The Michigan Court of Appeals rejected the claim as follows:
According to Martin, his defense counsel was also ineffective because he
should have consulted with an expert to assist in effectively cross-examining Allen
and should have presented a defense expert to respond to her claim of no alternative
hypothesis.
-22-

With his motion for a new trial, Martin attached a compelling affidavit from
psychologist Katherine Okla, Ph.D. to support his claim that defense counsel should
have secured an expert to counter Amy Allen’s testimony and to assist with
cross-examining her. In the opinion denying the motion, the trial court failed to
address this aspect of Martin’s motion.
In retrospect, it is possible that defense counsel could have secured a counter
expert. Allen tended to undermine various bases for the argument that the
complainant’s inconsistencies demonstrated a lack of truthfulness. While she did not
say that the complainant was telling the truth, Allen explained the delay in reporting
the abuse, gave an innocent reason for the inconsistencies in the complainant’s
testimony, and offered a plausible explanation for why the complainant may have
voluntarily returned to Martin’s home after suffering the abuse. However, ahead of
trial, defense counsel may have legitimately thought that cross-examination would
suffice. As previously noted, whether to call an expert witness is a matter of trial
strategy, and this Court will not judge defense counsel’s performance with the
benefit of hindsight.21 For these reasons, we conclude that Martin has not established
ineffective assistance of counsel based on the failure to call an expert witness.
FOOTNOTES
21 Payne, 285 Mich. App. at 190.
Martin, 2011 WL 445806, *19.
The rejection of this claim by the Michigan Court of Appeals was reasonable. Petitioner is
unable to overcome the strong presumption that counsel rendered adequate assistance and “made
all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690. Although some attorneys may have called an expert witness to testify, that is not the test for
habeas review. The Supreme Court has stated that 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.” Strickland, 466 U.S. at 689. “It can be assumed that in some cases counsel
would be deemed ineffective for failing to consult or rely on experts, but even that formulation is
sufficiently general that state courts would have wide latitude in applying it.” Harrington, 131 S.
Ct. 770 at 789.
-23-

Here, the state court noted that it was reasonable for Petitioner’s trial counsel to rely on
cross-examination to challenge Allen’s testimony. In fact, as noted above, Allen conceded on crossexamination that she had no idea whether a particular child is flat-out lying about allegations of
sexual abuse, and that she was expressing no opinion as to the complainant’s truthfulness.
Furthermore, Petitioner’s counsel used Allen’s testimony to show inconsistencies between what the
complainant told Allen and her later testimony. The decision by the state court that counsel was not
ineffective for the way he dealt with Allen’s testimony fell within the range of reasonable outcomes.
Therefore, Petitioner has not demonstrated entitlement to habeas relief based on this claim.
4. Failure to object to hearsay
Petitioner alleges that his trial counsel should have objected to the admission of statements
made by the complainant to other people regarding her allegations against Petitioner. The Michigan
Court of Appeals rejected the claim on the merit as follows:
Finally, Martin contends that defense counsel was ineffective for failing to
object on hearsay grounds to the complainant’s alleged statements to others that
Martin had molested her.
We first note that these were not excited utterances. An excited utterance is
“[a] statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.”22 Although the
passage of time is not conclusive, the focus is on the “possibility for conscious
reflection.”23 Here, the complainant had such an opportunity for reflection during the
approximately two-to three-month interval between the last instance of abuse and the
statements she made to others.
FOOTNOTES
22 MICH. RULE EVID. 803(2).
23 People v. Smith, 456 Mich. 543, 551 (1998).
Nonetheless, the prosecution argues that these statements were made to
explain the complainant’s ensuing actions. That is, the statements the complainant
-24-

made to her mother and godmother served as the catalyst for Amy Allen’s ensuing
investigation. Moreover, defense counsel could have made a tactical decision that
nothing was to be gained by objecting to these statements. Accordingly, Martin has
not established ineffective assistance of counsel based on the failure to object.
Martin, 2011 WL 445806, *18-19.
The fact that the complainant made statements before trial that Petitioner molested her was
not, in itself, particularly damaging to his defense. Obviously, if the complainant had not told anyone
about her allegations, there would not have been a prosecution. The Court’s review of the record
reveals that defense counsel used the prior statements by the complainant to show that she was not
credible. He pointed to inconsistencies in her statements, and ironically, Petitioner’s current counsel
refers to some of these same inconsistencies to argue that the out-of-court statements were
unreliable. For example, the complainant’s friend testified that she told her in the Summer of 2008
that Petitioner had only touched her inappropriately, even though the complainant later alleged that
she had been subjected to vaginal intercourse by that time. That is, the prior statements worked into
Petitioner’s defense that the complainant made-up the allegations and increased their intensity as
time went on. The Court cannot conclude that defense counsel performed deficiently by using the
prior statements to bolster his attack on the complainant’s credibility instead of objecting to the
introduction of the statements. Petitioner has, therefore, not demonstrated entitlement to relief with
respect to this claim.

B. Exclusion of Complainant’s Sexual History
Petitioner’s second habeas claim asserts that his rights to confrontation and present a defense
were violated when he was prevented from presenting evidence of the complainant’s sexual history
with Stephen. The trial court denied Petitioner’s pretrial motion to present this evidence without
-25-

prejudice and said it would revisit the issue at trial, but Petitioner’s trial counsel never renewed his
motion. Petitioner claims that the trial court erred in its initial ruling, and then erred again when it
denied his motion for a new trial, which was specifically premised on the allegation that the
testimony of Dr. Gorman and Amy Allen created a new basis for admitting the defense evidence that
did not previously exist.
The Michigan Court of Appeals opinion only dealt with the second argument–the allegation
that the testimony of Dr. Gorman and Amy Allen created a new basis for the defense evidence. The
court of appeals rejected the claim as follows:
Martin argues that his motion for a new trial should have been granted based
on the need for the evidence of the complainant’s relationship with SC to rebut the
testimony by Amy Allen of Care House and Dr. Gorman.
This Court reviews for an abuse of discretion a trial court’s decision to
preclude evidence.24 An abuse of discretion occurs when the trial court chooses an
outcome that falls outside the range of reasonable and principled outcomes.25
FOOTNOTES
24 See People v. Hackett, 421 Mich. 338, 349 (1984).
25 See People v. Babcock, 469 Mich. 247, 269 (2003).
A. TESTIMONY OF DR. STACY GORMAN
Dr. Gorman testified that she did not perform a pelvic examination in October
2008, because one had been performed in August 2008, and the incidents ended in
August. Martin argues that this testimony led the jurors to believe that the
complainant’s hymen was ruptured and that the complainant had engaged in sexual
activity. He further argues that, because of this inference, the jurors would assume
that he ruptured her hymen. For these reasons, Martin contends that the evidence of
the complainant’s sexual conduct with SC would have given another explanation for
her hymen being ruptured. However, Dr. Gorman gave absolutely no indication
whether the complainant’s hymen was or was not intact. Therefore, this argument
has no merit.
B. TESTIMONY OF AMY ALLEN
-26-

Amy Allen testified that an investigator tries to develop alternative
explanations. She also testified that her team concluded that there were no alternative
explanations for the allegations the complainant made in her interview. Martin posits
that the jury must have inferred that there were no other hypotheses in this case and
no other suspects. He suggests that a reference to SC would have given rise to
another hypothesis and another suspect. While evidence of the complainant’s sexual
past may have developed an alternative hypothesis, such evidence is precluded by
the rape shield law, and Martin has failed to show sufficient cause to circumvent the
statutory prohibition.
Martin, 2011 WL 445806, *19-21.
The Court finds that Petitioner has not demonstrated entitlement to habeas relief with respect
to this claim because the trial court never definitively found that the evidence was inadmissible. That
is, it is not clear based on the record the extent to which Petitioner would have been allowed to
present parts, or even all, of the evidence.
The Sixth Amendment guarantees a defendant the right to be confronted with the witnesses
against him. U.S. Const. amend. VI. The Confrontation Clause protects a defendant’s literal right
to confront witnesses at the time of trial, and a defendant’s right to cross-examination. Delaware v.
Fensterer, 474 U.S. 15, 18 (1985). A trial court has the discretion to limit the scope of
cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 675 (1986). This includes discretion to
impose limits based on concerns about harassment, prejudice, confusion on the issues, witness
safety, or interrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 675;
King v. Trippett, 192 F.3d 517, 524 (6th Cir. 1999). The Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, that the defense might desire. Fensterer, 474 U.S. at 20; Haliym v. Mitchell,
492 F.3d 680, 701 (6th Cir. 2007).
Like the right to confrontation, the Supreme Court repeatedly has recognized that the right

-27-

to present a defense also is subject to reasonable restrictions. See United States v. Scheffer, 523 U.S.
303, 308 (1998) (addressing the exclusion of exculpatory polygraph test result); Taylor v. Illinois,
484 U.S. 400, 410 (1988) (the Sixth Amendment does not confer on the accused an “unfettered right
to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules
of evidence”); Rock v. Arkansas, 483 U.S. 44, 55 (1987) (addressing criminal defendants’ rights to
testify in their own behalf); Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (addressing the
defendant’s right to present and cross-examine witnesses in his own defense).
[S]tate and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials. Such rules do not abridge an
accused’s right to present a defense so long as they are not “arbitrary” or
“disproportionate to the purposes they are designed to serve. Moreover, we have
found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate
only where it has infringed upon a weighty interest of the accused.
Scheffer, 523 U.S. at 308 (internal citations omitted).
When inquiring into the constitutionality of a trial court’s decision to exclude evidence, a
habeas court must consider the relevancy and cumulative nature of the excluded evidence, and the
extent to which it was “indispensable” to the defense. Crane v. Kentucky, 476 U.S. 683, 691 (1986).
Against this, courts must balance the state’s interests in enforcing the evidentiary rule on which the
exclusion was based. Id. In Michigan v. Lucas, 500 U.S. 145, 150 (1991), the Supreme Court
recognized that Michigan’s Rape Shield Statute represents a valid legislative determination that rape
victims deserve heightened protection from harassment.
The Sixth Circuit distilled this body of law to determine what is “clearly established” for
purposed of AEDPA review. See Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012) (en banc). The
Sixth Circuit held that Crane, 476 U.S. at 690-91, stands for the general proposition that “the
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
-28-

defense”— such that the court may not “exclude competent, reliable evidence . . . central to the
defendant’s claim of innocence[,] . . . [i]n the absence of any valid state justification.” Gagne, 680
F.3d at 514. And the Court held that Lucas stands for the proposition that a court must balance a
state’s interest in excluding certain evidence under the rape shield statute against a defendant’s
constitutionally protected interest in admitting that evidence on a case-by-case basis, and that neither
interest is superior per se. Id.
In this case, Petitioner’s theory of defense was that the complainant had a motive to falsely
accuse him of rape because she was trying to protect her adult-aged boyfriend from going to jail for
having sex with a minor. As Petitioner correctly points-out, the less convincing motive presented
at trial was that the complainant falsely accused Petitioner of raping her because he would not put
her on his cell phone plan. In this Court’s view, Petitioner’s threat to jail Stephen was a critical
element of his theory of defense that the complainant was motivated to falsify charges against him.
If the case were tried before this Court, it likely would have found that Petitioner had a right
to present this defense evidence. See Olden v. Kentucky, 488 U.S. 227 (1988) (defendant entitled to
cross-examine complainant whether she claimed he raped her in order to preserve a relationship with
another man); Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (a witness's motivation in testifying
carries with it the constitutionally protected right of cross-examination);Lewis v. Wilkinson, 307 F.3d
413, 422 (6th Cir. 2002) (statements in complainant’s diary about sexual history with other men had
substantial probative value as to her motive in pressing charges against the petitioner); State v.
Rogers, 642 A.2d 932, 934-935 (N.H. 1994) (allowing cross-examination of complainant about
whether defendant had told her he knew about her sexual relationship with other men and threatened
to report it to complainant’s mother); Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396

-29-

(1985) (unconstitutional to preclude sexual history evidence of complainant’s sexual relationship
with her brother which logically demonstrated complainant’s bias against defendant father for
stopping the relationship).4 The complainant in this case testified that Petitioner sexually abused her
for a period of months between the Spring and Fall of 2008, without telling anyone about it until
October of 2008. Petitioner alleges that he repeatedly warned the complainant about having sex with
Stephen during this same time-frame, but the matter finally came to head in October of 2008 during
the conversation about the cell phone when he again threatened to jail Stephen.
Clearly, the timing of the complainant’s allegations and the threat to jail Stephen created a
much more plausible motive for a false accusation than the mere fact that Petitioner would not put
the complainant on his phone plan.
The problem here, however, is that review of Petitioner’s claim, however, is muddied by the
fact that the admissibility of the prior sexual conduct evidence was never fully adjudicated by the
trial court. Given the non-definitive wording of the trial court’s pretrial order, it is not at all clear
that Petitioner would have been prohibited from offering the defense evidence had he raised the
4

Very recently, the Sixth Circuit noted that evidence offered to show a witness’s bias or motive
against a defendant is afforded greater protection under the Confrontation Clause than an attack of
a witness’s general credibility:
The former type of questioning tries to pinpoint a specific explanation for why a
witness might be testifying falsely—say that a rape accuser holds a preexisting
grudge against the defendant and wants to see him suffer. The latter type of
questioning tries only to show that the witness has lied before and may be lying
again. The Confrontation Clause protects a defendant’s right to explore specific
motivations, but it “does not require that a defendant be given the opportunity to
wage a general attack on credibility by pointing to individual instances of past
conduct.”
Fuller v. Woods, No. 11-2425, slip op. at 7 (6th Cir. June 14, 2013) (citing Boggs v. Collins, 226 F.3d
728, 740 (6th Cir. 2000)).
-30-

issue at trial. Indeed, the trial court’s pretrial order indicated it would revisit the matter, but defense
counsel never raised the subject again. Rather, at trial, Petitioner chose only to attack the
complainant’s credibility. That is, Petitioner’s claim appears to assume that the trial court’s pretrial
order was a final decision on the issue and prohibited the presentation of evidence of the
complainant’s sexual relationship with Stephen–unless the prosecutor otherwise opened the door.
But the language of the trial court’s pretrial order undermines that assumption. It is completely
unknown what the trial court would have done had defense counsel renewed his motion at trial.
Because the admissibility of the defense evidence was not resolved during Petitioner’s trial, there
is no basis on which to find that his right to present a defense was violated by any ruling made by
the trial court.
This leaves an obvious and troubling point. If the admissibility of this defense evidence was
not resolved by the trial court’s pretrial order with finality, then surely defense counsel was
ineffective for failing to raise the issue again at trial, or at least counsel should have ascertained the
bounds of what would have been allowed. The problem is no such claim was fairly presented to the
state courts during Petitioner’s direct appeal. Indeed, it does not appear that Petitioner makes any
such claim in his habeas petition. Incredibly, no mention at all was made by Petitioner in his state
court briefs–or in his pleadings in this Court–that the trial court denied the pretrial motion without
prejudice and stated that the issue would be revisited at trial. Petitioner’s related claim on direct
appeal only focused on the fact that prosecution witnesses opened the door to reconsideration of the
defense evidence when their testimony created a new basis for its admission that did not previously
exist.
A state prisoner must exhaust available state court remedies before he can secure federal

-31-

habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 404 U.S.
270, 275 (1971). A petitioner satisfies the exhaustion requirement when he raises the claim in a
manner that affords the state courts a fair opportunity to address the federal constitutional issue. See,
e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989). Petitioner must present the very claim to the state
courts—setting forth essentially the same facts, evidence, and legal basis—that he seeks to present
to the federal court. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Picard, 404 U.S. at
275-76; McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
Petitioner did argue in the state courts that his trial counsel was ineffective for failing to
renew his motion. But wherever that argument was made, it was always premised on the allegation
that the testimony of Allen and Dr. Gorman created a new basis for admission of the evidence that
did not exist before. That claim was reasonably and correctly rejected by the state courts because
neither Allen nor Gorman testified to the things Petitioner claimed they did. The much stronger
claim that counsel was ineffective for failing to renew his motion on the grounds that the pretrial
order indicated the matter would automatically be revisited puts the claim in a significantly different
and stronger evidentiary posture than what the state courts were presented with.
The situation is analogous to what occurred in Sampson v. Love, 782 F.2d 53, 57 (6th Cir.
1986). In Sampson, the habeas Petitioner claimed in his state court appeal that his jury imposed a
seventy-five year sentence out of vindictiveness because it was possible that they knew his previous
sixty-year sentence had been reversed on appeal. The state court rejected the claim because
Petitioner had not shown that the jury in fact knew about the prior reversal. On federal habeas
review, the Petitioner supplemented his claim with affidavits by two jurors that stated they in fact
knew about the prior reversal. The Sixth Circuit found this new evidence rendered the claim

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unexhausted because “[p]reviously, [petitioner] could only speculate whether the jurors knew of the
prior sentence. Now he has direct proof. . . . That evidence places Sampson's claim in a significantly
different posture than that at the state level.” Id., 782 F.2d at 57. Like Sampson, in this case,
Petitioner presented the state court with a claim that the trial court might have revisited its pretrial
ruling in light of the testimony of Allen and Dr. Gorman. The revelation of the language in the
pretrial order allowing for automatic reconsideration of the pretrial ruling places Petitioner’s claim
in a significantly different and stronger posture than what was presented to the state courts.
Accordingly, to the extent Petitioner wishes to argue in this action that his trial counsel was
ineffective for failing to renew his motion to present the defense evidence because the trial court said
it would revisit the issue at trial, the claim is not exhausted and therefore cannot be considered. The
Court notes, however, that Petitioner has not yet filed a motion for relief from judgment in the state
courts were such a claim could be presented. And though Michigan Court Rule 6.508(D)(3),
prevents a defendant from raising new claims absent a showing of “good cause” and “actual
prejudice,” Petitioner’s appellate counsel’s failure to appreciate the language in the pretrial order
might qualify. These matters, however, must now be left for the state courts.5

C. Sentencing Guidelines
Petitioner’s last claim asserts that the sentencing guidelines were scored incorrectly and were
based on facts not proven beyond a reasonable doubt.

5

As it stands, if Petitioner does not obtain relief in the state courts, he will likely be
unable to raise them in a second federal habeas petition. See 28 U.S.C. § 2244(b). If Petitioner is
desirous of maintaining an avenue of federal review, he may file a motion for rehearing seeking
to add his unexhausted claim to the petition and seeking an order holding the case in abeyance
while he pursues relief in the state court.
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To the extent that Petitioner argues that the trial court erred in scoring the sentencing
guidelines, his claim raises issues of state law and does not implicate any federal rights and is
non-cognizable on federal-habeas review. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011)
(habeas-corpus relief does not lie for errors of state law) (quoting Estelle 502 U.S. at 67).
Petitioner’s assertion that his sentence is invalid because the trial court incorrectly scored the state’s
sentencing guidelines fails to state a claim for federal-habeas relief because it is a state-law claim
and non-cognizable. See Austin v. Jackson, 213 F.3d 298, 300-01 (6th Cir. 2000)(citation omitted).
To the extent that Petitioner argues that his sentence is improper because his
minimum-sentence-guidelines range was increased based on facts not proven to jury beyond a
reasonable doubt or admitted by him is likewise without merit. In support of this claim, Petitioner
relies on Blakely v. Washington, 542 U.S. 296 (2004), in which the United States Supreme Court
held that, other than the fact of a defendant’s prior conviction, any fact that increases or enhances
a penalty for the crime beyond the prescribed statutory maximum for the offense must be submitted
to the jury and proven beyond a reasonable doubt. Id. at 301 (citing Apprendi v. New Jersey, 530
U.S. 466, 490 (2000)); see also United States v. Booker, 543 U.S. 220, 232 (2005) (same). However,
this claim has been foreclosed by the Sixth Circuit’s decision in Chontos v. Berghuis, 585 F.3d 1000,
1002 (6th Cir. 2009) (Apprendi’s rule does not apply to judicial fact-finding that increases a
minimum sentence so long as the sentence does not exceed the applicable statutory maximum); see
also Montes v. Trombley, 599 F.3d 490, 495 (6th Cir. 2010) (same). This Court is bound by the Sixth
Circuit’s decisions. Habeas relief is not warranted.
V. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability (“COA”) must issue.

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See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A COA 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). When
a federal court rejects a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A
petitioner satisfies this standard by demonstrating 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). In applying this standard, the court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of the claims. Id. at 336-37.
The Court finds that Petitioner has made a substantial showing of the denial of a
constitutional right as to his first and second habeas claims. Accordingly, a certificate of
appealability is GRANTED with respect to those claims but DENIED with respect to his third
claim.

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VI. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is
DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED with respect
to Petitioner’s first and second claims but DENIED with respect to his third claim.
IT IS FURTHER ORDERED that Petitioner may file a motion for rehearing seeking to add
his unexhausted claim to the petition and seeking an order holding the case in abeyance while he
pursues relief in the state court.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: June 25, 2013
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel
of record on June 25, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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