Raar v. Rivard
OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus filed by Randall Raar, and Denying Certificate of Appealability. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:12-CV-10161
HON. MARIANNE O. BATTANI
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Randall Raar filed a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254. Petitioner is a state prisoner in the custody of the Michigan Department of
Corrections pursuant to convictions for three counts of using the internet or a computer to
commit a crime, sixteen counts of possession of child sexually abusive material, felon in
possession of a firearm, and possession of a firearm during the commission of a felony.
He argues that his convictions were obtained in violation of his constitutional rights
because insufficient evidence supported his convictions, the trial court erred in denying
his request to discharge defense counsel, an expert witness was not properly qualified, the
trial court did not articulate substantial and compelling reasons for an upward departure
from sentencing guidelines, the trial court failed to provide a full and fair hearing
regarding his Fourth Amendment claims, and he was subjected to vindictive prosecution.
Respondent argues that the claims are meritless and/or procedurally defaulted.
The Court denies the petition.
Background and Procedural History
Petitioner became the subject of a police investigation when he wrote a letter to a
convicted sex offender incarcerated in a Michigan correctional facility. In the letter,
Petitioner stated that he wished the offender could view all of the pictures he had
downloaded on his computer and the letter contained pictures of young children. A
search warrant was executed at Petitioner’s home in Lincoln Park, Michigan on May 4
and 11, 2006.
Michigan state police trooper Mike Lee testified that he assisted in the execution
of the search warrant at Petitioner’s home. During the search Lee located a manila
envelope on a computer stand in a small basement room. Inside the envelope, he found a
piece of paper containing images believed to be child pornography. He also found a
magazine entitled “Moppets and Teens” with a cover depicting images of young naked
Michigan state police trooper John Gora testified that he also assisted in the search
of Petitioner’s home. He discovered and seized two firearms from the home. Three
computers were seized from the home’s basement along with compact and floppy discs.
Detective Sergeant Rebecca MacArthur testified that she performed the forensic
examinations of the computers seized. She testified as a computer forensic expert. She
testified that one of the computers had accessed the website prettynu.com, which, she
testified was a child pornography website. Detective Sergeant MacArthur further testified
that a picture of a child’s face on the printout seized from the manila folder matched an
image found on the hard drive of the computer that had accessed the “prettynu” website.
Petitioner did not present any witnesses in his defense.
Petitioner was convicted by a jury in Wayne County Circuit Court of three counts
of using the internet or computer system to engage in a prohibited communication, 16
counts of possession of child sexually abusive material, felon in possession of a firearm,
and possession of a firearm during the commission of a felony. He was sentenced to 13
months to 15 years’ imprisonment for each of the computer crime convictions, 13 months
to 6 years’ imprisonment for each of the possession of child sexually abusive material
convictions, 13 to 90 months’ imprisonment for the felon-in-possession conviction, and
two years’ imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
The evidence was insufficient to convict Mr. Raar of being a felon in
possession of a firearm and using a firearm during the commission of a
The trial court violated Mr. Raar’s due process rights when it refused
defendant’s request to discharge defense counsel after the attorney-client
relationship had broken down.
The improper qualification of an expert witness violated court rules and
deprived Mr. Raar of his constitutional right to due process and a fair trial.
The trial court did not articulate substantial and compelling reasons to
depart upwards from the recommended sentencing range of zero to thirteen
The Michigan Court of Appeals affirmed Petitioner’s convictions and sentences.
People v. Raar, No. 277419, 2008 WL 4228349 (Mich. Ct. App. Sept. 16, 2008).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court,
raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme
Court denied leave to appeal. People v. Raar, 483 Mich. 1022 (Mich. May 28, 2009).
Petitioner then filed a motion for evidentiary hearing and a motion for relief from
judgment in the trial court, raising these claims:
Defendant-appellant’s rights under the Fourth Amendment of the United
States Constitution were violated because evidence was obtained through an
unlawful search warrant.
Selective prosecution violated defendant’s rights under the First, Fourth,
Fifth, Sixth, and Fourteenth Amendments.
The trial court denied the request for an evidentiary hearing and denied the motion
for relief from judgment. People v. Raar, No. 06-007903-01 (Wayne County Cir. Ct. June
25, 2010). Petitioner’s applications for leave to appeal this denial were denied by the
Michigan Court of Appeals and Michigan Supreme Court. People v. Raar, No. 299888
(Mich. Ct. App. Jun 8, 2011); People v. Raar, 490 Mich. 970 (2011).
Petitioner then filed the pending habeas petition. He raises these claims:
The evidence was insufficient to convict Mr. Raar of being a felon in
possession of a firearm and using a firearm during the commission of
The improper qualification of an expert witness violated court rules
and deprived Mr. Raar of his constitutional right to due process and a
The trial court did not articulate substantial and compelling reasons
to depart upwards from the recommended sentencing range of zero
to thirteen months.
Petitioner was denied full and fair hearing of the violation of his
Fourth Amendment rights where the sole finding of probable cause. .
., was based upon statements in an affidavit that were either
deliberately false, or made in reckless disregard of the truth.
The trial court violated Mr. Raar’s due process rights when it refused
defendant’s request to discharge defense counsel after the
attorney-client relationship had broken down.
Petitioner was subjected to a vindictive prosecution in retaliation for his
letters, complaints, and criticisms of the Michigan Department of
Corrections and the government of the State of Michigan.
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
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
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
28 U.S.C. § 2254(d).
“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). However, “[i]n order for a federal court find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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. __, 131
S. Ct. 770, 789 (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 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).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law”
are to be determined solely by resort to Supreme Court rulings, the decisions of lower
federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
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
Sufficiency of the Evidence
In his first habeas claim, Petitioner argues that the prosecution presented
insufficient evidence to sustain his convictions for being a felon in possession of a
firearm and using a firearm during the commission of a felony. Petitioner admits that two
firearms were physically present at his home at the time he committed the computer
crimes, but contends that he did not possess or use them because they were not easily
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, review
of a sufficiency of the evidence challenge must focus on whether “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, “[t]he
Jackson standard must be applied ‘with explicit reference to the substantive elements of
the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
“Two layers of deference apply to habeas claims challenging evidentiary
sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v.
Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court “must determine whether,
viewing the trial testimony and exhibits in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Brown, 567 F.3d at 205, (citing Jackson, 443 U.S. at 319). Second, if
the Court were “to conclude that a rational trier of fact could not have found a petitioner
guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the
state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.
Under Michigan law, the elements of felon in possession of a firearm are: (1) that
the defendant was convicted of a felony, (2) that the defendant possessed a firearm, and
(3) that at the time of possession less than three or five years, depending on the
underlying felony, has passed since the defendant had completed his term of
incarceration, satisfied all conditions of probation and parole, and paid all fines. See
Mich. Comp. Laws § 750.224f. The elements of felony firearm are that the defendant
possessed a firearm during the commission of, or the attempt to commit, a felony. See
Mich. Comp. Laws § 750.227b; People v. Akins, 259 Mich. App. 545, 554, 675 N.W.2d
863 (2003). Circumstantial evidence and reasonable inferences from such evidence can
constitute satisfactory proof of the elements of the crime. See People v. Carines, 460
Mich. 750, 757, 597 N.W.2d 130 (1999).
The Michigan Court of Appeals although not specifically citing Jackson, clearly
applied the Jackson standard and held that sufficient evidence was presented to sustain
Petitioner’s convictions, stating, in relevant part:
[D]efendant contends that he did not possess the firearms because they were
stored in an inaccessible manner. Although defendant further contends that
the weapons were inaccessible because the firearms were unloaded and
stored in cases, “[o]perability is not and has never been an element of
felony-firearm.” People v. Thompson, 189 Mich.App. 85, 86, 472 N.W.2d
11 (1991); see also, People v. Peals, 476 Mich. 636, 638, 650, 653-655, 720
N.W.2d 196 (2006) (holding that operability is not an element of felon in
possession of a firearm).
Viewing the evidence in a light most favorable to the prosecution, a rational
trier of fact could infer beyond a reasonable doubt from the circumstances
that the weapons were reasonably accessible to defendant. The computer
and magazine that formed the evidentiary basis for defendant’s other
convictions, as well as the firearms, were seized from defendant’s
residence. According to defendant, the firearms were not reasonably
accessible to him based upon Michigan State Police Trooper John Gora’s
testimony that it took him a full minute to locate the weapons behind a
board of plywood in a storage area. However, Michigan State Police
Trooper David Boike testified that Gora began pulling the cased firearms
and empty pistol cases from the storage area in about 15 seconds.
Resolving the evidentiary conflict in the prosecution’s favor, Gora retrieved
the firearms within 15 seconds of beginning his search of the storage area.
Fletcher, supra at 562, 679 N.W.2d 127. We conclude that a firearm that
can be accessed within 15 seconds is “reasonably accessible.” Moreover,
when defendant’s uncontested knowledge of the location of the firearms is
taken into account, the firearms were at least as accessible to defendant as
they were conducive to discovery by the police. Under the circumstances, a
rational trier of fact could conclude, beyond a reasonable doubt, that the
firearms were stored in a location that was reasonably accessible to
defendant, and as such, defendant constructively possessed the firearm that
formed the basis for his convictions. Burgenmeyer, supra at 438, 606
Raar, 2008 WL 4228349 at *2.
Possession of a firearm under Michigan law can be actual or constructive and can
be proven by circumstantial evidence. See People v. Hill, 433 Mich. 464, 469 (1989). A
defendant may have constructive possession of a firearm if its location is known to the
defendant and if it is reasonably accessible to him. Id. at 470-71. There was sufficient
evidence for a rational trier of fact to conclude that Petitioner possessed the firearms
recovered from the home. As the Michigan Court of Appeals noted, testimony at trial
established that Petitioner was aware of the guns’ location and that, at most, it took law
enforcement one minute to access the weapons. From this evidence, the trier of fact
could reasonably infer that Petitioner, who was aware of the firearms’ location, could
access the weapons in less time and, therefore, that they were reasonably accessible to
him. Habeas relief is denied on this claim.
Trial Court’s Denial of Request to Discharge Counsel
Petitioner argues in his second habeas claim that the trial court violated his right to
due process when it denied his request, made on the day trial commenced, to replace his
The Sixth Amendment guarantees an accused in all criminal prosecutions the right
to the assistance of counsel in his defense, and and gives an indigent criminal defendant
the right to the assistance of court-appointed counsel. See Gideon v. Wainwright, 372
U.S. 335, 343 (1963). “[T]he purpose of providing assistance of counsel ‘is simply to
ensure that criminal defendants receive a fair trial.’” Wheat v. U.S., 486 U.S. 153, 159
(1988), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984). “[I]n evaluating
Sixth Amendment claims, ‘the appropriate inquiry focuses on the adversarial process, not
on the accused’s relationship with his lawyer as such.’” Id., quoting U.S. v. Cronic, 466
U.S. 648, 657 n.21 (1984). Further, “the essential aim of the Amendment is to guarantee
an effective advocate for each criminal defendant rather than to ensure that a defendant
will inexorably be represented by the lawyer whom he prefers.” Id.
The Sixth Amendment guarantees effective assistance of counsel, not a
“meaningful relationship” between an accused and his counsel. See Morris v. Slappy,
461 U.S. 1, 14 (1983). Thus, “when a defendant is denied the counsel he prefers, the
constitutional concern is whether he received an effective advocate.” Ray v. Curtis, 21 F.
App’x 333, 335 (6th Cir. 2001). This is so because “those who do not have the means to
hire their own lawyers have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Caplin & Drysdale v. United States,
491 U.S. 617, 624 (1989).
In this case, the Michigan Court of Appeals held that Petitioner failed to show
good cause for appointing substitute counsel or that substitution of counsel would not
unreasonably disrupt the judicial process. At a motion hearing on the day before trial
commenced, Petitioner informed a judge (not the trial judge) that he had not had an
opportunity to review all discovery materials and that he wanted to call character
witnesses. Defense counsel informed the court that she was prepared to proceed. The
judge noted that Petitioner previously had discharged his retained attorney in this case on
the eve of trial and in another unrelated case. The judge found no cause for doing so in
this case. On the first day of trial, defense counsel advised the trial judge that Petitioner
did not feel prepared for trial because he had not reviewed all of the discovery material,
but that she (defense counsel) was prepared to proceed. Defense counsel further
informed the court that she had reviewed all relevant discovery material with Petitioner.
The trial judge found no basis for substitution of counsel and proceeded with the trial.
The Michigan Court of Appeals held that the trial court conducted an adequate
investigation into the nature of the conflict and reasonably determined that substitute
counsel was unnecessary. A criminal defendant may not “stop the criminal justice system
in its tracks” by rejecting appointed counsel for no justifiable reason. Swiger v. Brown,
86 F. App’x 877, 882 (6th Cir. 2004). A criminal defendant has “‘no right to indefinite
delays while he tries on new lawyers unless he has a reason for dissatisfaction with the
old.’” King v. Bobby, 433 F.3d 483, 493 (6th Cir. 2006) (quoting U.S. v. Oreye, 263 F.3d
669, 671 (7th Cir. 2001)). The record shows that the trial court successfully and carefully
balanced Petitioner’s right to counsel, but not to the counsel of his choice. The Michigan
Court of Appeals’ finding that Petitioner raised no justifiable reason for replacement of
counsel is reasonable. Relief is denied on this claim.
Expert Witness Qualification
In his third habeas claim, Petitioner challenges the trial court’s decision to allow
Detective Rebecca MacArthur to testify as an expert witness in computer forensics. He
argues that her testimony was unsupported by the evidence and that she improperly
testified about items that were found in his home but not on his computer or computer
Respondent argues that this claim is procedurally defaulted because it was not
properly exhausted and no avenue for exhaustion is available to Petitioner in state court.
The Court finds it unnecessary to address the question of procedural default. It is not a
jurisdictional bar to review of the merits of an issue, Howard v. Bouchard, 405 F.3d 459,
476 (6th Cir. 2005), and “federal 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)).
Application of a procedural bar would not affect the outcome of this issue, and it is more
efficient to proceed directly to the merits.
Alleged trial court errors in the application of state evidentiary law are generally
not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). The Court “must defer to a state court’s interpretation of its own rules of
evidence and procedure” when assessing a habeas petition. Miskel v. Karnes, 397 F.3d
446, 453 (6th Cir. 2005). Habeas courts do not review questions of state evidentiary law
unless they give rise to a fundamentally unfair trial. Estelle, 502 U.S. at 69-70; Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir.2003). “The admission of expert testimony in a state
trial presents a question of state law which does not warrant federal habeas relief unless
the evidence violates due process or some other federal constitutional right.” Randolph v.
Wolfenbarger, 2006 WL 1662885, *5-6 (E.D. Mich. 2006), citing Keller v. Larkins, 251
F.3d 408, 419 (3rd Cir. 2001). In addition, the decision to qualify an individual as an
expert witness involves only a state law evidentiary issue. Randolph v. Wolfenbarger,
2006 WL 1662885 at *5-*6, citing United States ex. rel. Ruddock v. Briley, 216
F.Supp.2d 737, 743 (N.D. Ill. 2002); Vaquez-Torrez v. Dorsey, 66 F.3d 339, 1995 WL
539575, *1 (10th Cir.1995). Therefore, the decision to qualify Detective MacArthur as
an expert witness is a question of state law.
Moreover, the Michigan Court of Appeals reviewed Detective MacArthur’s
qualifications in the area of computer forensics and found her to be well-schooled and
adequately qualified to offer expert testimony. The state court’s review of Detective
MacArthur’s qualifications was comprehensive and accurate. Petitioner has failed to
show that Detective MacArthur’s qualification as an expert witness or her testimony
denied him his right to a fair trial. Habeas relief is denied on this claim.
Upward Departure From Sentencing Guidelines
Petitioner argues that the trial court departed from the sentencing guidelines
without substantial and compelling reasons for doing so. “The habeas statute
unambiguously provides that a federal court may issue the writ to a state prisoner ‘only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.’” Wilson v. Corcoran, __ U.S. __, 131 S. Ct. 13, 16 (2010) (quoting 28
U.S.C. § 2254(a)). The requirement that a sentencing court articulate a “substantial and
compelling reason” for departure from the sentencing guidelines is found in Michigan,
not federal, law. See Michigan Compiled Laws § 769.34(3). Whether a state court judge
articulates substantial and compelling reasons for departing from the sentencing
guidelines is a matter of state law. Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003)
(“A state court’s alleged misinterpretation of state sentencing guidelines and crediting
statutes is a matter of state concern only.”); see also McPhail v. Renico, 412 F. Supp. 2d
647, 656 (E.D. Mich. 2006). “[A] mere error of state law is not a denial of due process.”
Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 863 (2011) (internal quotations omitted).
Thus, this claim is not cognizable on federal habeas review.
Fourth Amendment Claims
Petitioner next claims that habeas relief should be granted because, he alleges, the
affidavit which led to the search warrant contained deliberate falsehoods.
The Supreme Court has held that “where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at trial.” Stone v. Powell, 428 U.S. 465, 494-95 (1976).
The Sixth Circuit Court of Appeals utilizes a two-step analysis to determine whether a
defendant was given a full and fair opportunity to litigate a Fourth Amendment claim in
First, the court must determine whether the state procedural mechanism, in
the abstract, presents the opportunity to raise a fourth amendment claim.
Second, the court must determine whether presentation of the claim was in
fact frustrated because of a failure of that mechanism.
Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (internal quotations omitted).
“Michigan has a procedural mechanism which presents an adequate opportunity
for a criminal defendant to raise a Fourth Amendment claim.” Robinson v. Jackson, 366
F. Supp. 2d 524, 527 (E.D. Mich. 2005). This procedural mechanism is a motion to
suppress, ordinarily filed before trial. See People v. Ferguson, 376 Mich. 90 (Mich.
1965) (describing the availability of a pre-trial motion to suppress). Because Michigan
provides a procedural mechanism for raising a Fourth Amendment claim, Petitioner may
only demonstrate entitlement to relief if he establishes that presentation of his claim was
frustrated by a failure of that mechanism. This he has not done.
Petitioner raised this issue in the trial court. The trial court held that an evidentiary
hearing was not necessary. Petitioner did not raise the issue on direct appeal. He raised
the claim in a motion for relief from judgment in the trial court. The trial court rejected
the claim, holding that the search warrant was properly issued. Both Michigan appellate
courts denied leave to appeal. Petitioner was provided an opportunity for full and fair
litigation of his Fourth Amendment claim in the Michigan courts. His disagreement with
the state courts’ conclusions on his Fourth Amendment claim does not render the state’s
procedural mechanism inadequate. This claim is barred by the rule in Stone v. Powell.
Alleged Vindictive Prosecution
Finally, Petitioner argues that the investigation and subsequent prosecution of him
for these crimes were undertaken in retaliation for letters he wrote to a state
representative that were critical of the Michigan Department of Corrections and the
Michigan Parole Board.
To punish a person because the person has exercised a protected statutory or
constitutional right is “patently unconstitutional.” Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978) (internal quotation omitted). “‘The broad discretion accorded prosecutors in
deciding whom to prosecute is not ‘unfettered,’ and a decision to prosecute may not be
deliberately based upon the exercise of protected statutory rights.’” Bragan v. Poindexter,
249 F.3d 476, 481 (6th Cir. 2001), quoting United States v. Adams, 870 F.2d 1140, 1145
(6th Cir. 1989). To show vindictive prosecution there must be “(1) exercise of a
protected right; (2) a prosecutorial stake in the exercise of that right; (3) unreasonableness
of the prosecutor’s conduct; (4) the intent to punish the defendant for exercise of the
protected right.” United States v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). “There are
two approaches to showing prosecutorial vindictiveness: a defendant can show (1) ‘actual
vindictiveness,’ by producing ‘objective evidence that a prosecutor acted in order to
punish the defendant for standing on his legal rights,’ or (2) ‘a realistic likelihood of
vindictiveness,’ by utilizing the framework outlined above (focusing on the prosecutor's
‘stake’ in deterring the exercise of a protected right and the unreasonableness of his
actions). United States v. Dupree, 323 F.3d 480, 489 (6th Cir. 2003), quoting Bragan v.
Poindexter, 249 F.3d 476, 481-82 (6th Cir. 2001).
Petitioner raised this claim for the first time on collateral review in state court.
The trial court held that Petitioner failed to show that the investigation and prosecution
were prompted by anything other than his letter to an incarcerated sex offender enclosing
pictures of young children. Petitioner offers no evidence that would call into question the
reasonableness of the trial court’s decision and the Court discerns nothing in the record
that would do so. The Court concludes, therefore, that this claim raises no issue on which
habeas relief may be granted.
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. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
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.
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
corpus and a certificate of appealability are DENIED and the matter is DISMISSED
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: May 29, 2014
CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon the
Petitioner via ordinary U.S. Mail, and Counsel for the Respondent, electronically.
s/Bernadette M. Thebolt
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