Devine v. Rapelje

Filing 18

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Signed by District Judge Linda V. Parker. (AFla)

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.940 Filed 03/13/23 Page 1 of 15

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

Case Number: 12-13125
Honorable Linda V. Parker

v.
WILLIS CHAPMAN,
Respondent.

/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Joseph Martin Devine has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction for three counts of thirddegree criminal sexual conduct in violation of Michigan Compiled Laws
§ 750.520d(1)(b) (sexual penetration of another person, using force or coercion).
Devine raises six grounds for relief. The Court finds that Devine’s claims do not
warrant relief and denies the petition. The Court also denies a certificate of
appealability and grants Devine leave to proceed in forma pauperis on appeal.
I.

Background
Devine’s convictions arise from his assault of his partner, DH. DH and

Devine began a relationship in 1991 and Devine moved into DH’s home in 1992.
(See ECF No. 13-4 at Pg ID 203.) On May 6, 2009, DH and a friend, Mary-Lynn

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.941 Filed 03/13/23 Page 2 of 15

Britts, went to the Farmington Hills Police Department where they spoke with
Detective Stacy Swanderski. (Id. at Pg ID 188.) DH told Swanderski that at about
3:00 a.m. that morning, Devine entered her bedroom (they slept separately) and
forcefully pulled off her shorts and underwear. (Id.) Devine held a Pyrex baking
dish filled with water and soap. (Id.) Devine then forcefully washed her and
digitally penetrated her vagina multiple times. (Id.) DH told Swanderski that she
was frightened of Devine and did not consent to these acts. (Id.) DH did not
attempt to physically fight Devine because he was much stronger. (Id.) DH also
told Swanderski that, since November 2007, Devine forced her to perform fellatio
every other day. (Id.) Devine was typically intoxicated and aggressive during
these incidents. (Id.)
The Michigan Court of Appeals set forth the following additional relevant
facts:
The victim testified that defendant “never forced [her] to have sex.”
However, she admitted that he “force[d] his fingers into [her] vagina”
during the sitz-bath incident. She claimed that he stopped the sitz
bath after she asked him to do so. She admitted that she had
previously accused defendant of forcibly penetrating her mouth and
vagina and had written a statement describing the incidents. She
stated that she retracted those statements because “I want him to have
his life back.” The victim testified that defendant “can be mentally
abusive to me. But after eighteen years, you get used to it.”
Alison Hoffman, the victim’s daughter-in-law, testified that she had
witnessed defendant being “[v]ery verbally sexually abusive” towards
the victim and demanding sex. Testifying for impeachment purposes,
Hoffman stated that the victim told her, at various times, that
2

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.942 Filed 03/13/23 Page 3 of 15

defendant had forced her to have sex. According to Hoffman, the
victim told her that defendant had been so aggressive with her one
time during sex that the victim’s cervix was torn and required surgery.
Karen Maldonado, a friend of the victim, testified that she, too,
observed defendant being verbally and mentally abusive towards the
victim. Maldonado, testifying for impeachment purposes, stated that
the victim told her multiple times that defendant had forced her to
have sex with him.
People v. Devine, No. 294568, 2010 WL 4673656, at *2 (Mich. Ct. App. Nov. 18,
2010).
On July 31, 2009, a jury in the Circuit Court for Oakland County found
Devine guilty of three counts of third-degree criminal sexual conduct in violation
of Michigan Compiled Laws § 750.520d(1)(b) (sexual penetration of another
person, using force or coercion). (See ECF No. 13-5 at Pg ID 250.) On August 24,
2009, the trial court sentenced Devine as a fourth habitual offender to three
concurrent terms of twenty-five to forty years in prison. Devine, 2010 WL
4673656, at *1.
Devine filed an appeal in the Michigan Court of Appeals claiming that the
evidence was insufficient to support his convictions and that his sentence was cruel
and unusual punishment. (See ECF No. 13-14 at Pg ID 358-359.) In a pro se
supplemental brief, Devine argued that his trial attorney was ineffective for failing
to move to suppress inadmissible evidence and that the trial court violated his right
to due process by failing to give a proper cautionary jury instruction and by
empaneling an anonymous jury. (Id. at Pg ID 423.) The Michigan Court of
3

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.943 Filed 03/13/23 Page 4 of 15

Appeals rejected these claims on direct appeal and affirmed Devine’s convictions
and sentence. See Devine, 2010 WL 4673656.
Devine raised the same claims and four new issues in an application for
leave to appeal in the Michigan Supreme Court. (See ECF No. 13-15 at Pg ID
450-476.) On April 25, 2011, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the questions presented. See People v.
Devine, 796 N.W.2d 88 (Mich. 2011).
On July 16, 2012, Devine filed a habeas corpus petition through counsel and
a motion to hold his petition in abeyance so that his attorney could file a motion for
relief from judgment in the state trial court. (ECF Nos. 1, 2) The Court granted
Devine’s request to stay these habeas proceedings and closed this case for
administrative purposes. (ECF No. 3.)
Devine filed a motion for relief from judgment in the state trial court,
arguing that the Michigan sentencing guidelines were miscalculated, he was
sentenced on facts not proven to a jury, and he was denied effective assistance of
counsel. The state trial court denied Devine’s motion, and the Michigan Court of
Appeals denied his delayed application for leave to appeal. People v. Devine, No.
345387 (Mich. Ct. App. Jan. 16, 2019). On July 29, 2019, the Michigan Supreme
Court denied leave to appeal. People v. Devine, 504 Mich. 946 (Mich. 2019).

4

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.944 Filed 03/13/23 Page 5 of 15

On August 26, 2019, Devine returned to federal court and filed a new pro se
habeas corpus petition, which was then refiled under the above-case caption and
resulted in this matter being reopened. 1 (See ECF No. 7.) The petition raises these
claims:
I. The trial court erred in scoring OV 7, depriving defendant of his
constitutional due process rights including the right to be sentenced
according to accurate factual information and appellate counsel was
ineffective for not raising the issue.
II. The trial court erred in scoring OV 4, depriving defendantappellant of his constitutional due process rights, being sentenced
according to accurate factual information, and appellate counsel was
ineffective.
III. Appellant is entitled to resentencing because the trial court erred
in sentencing on the basis of facts not proven to a jury beyond a
reasonable doubt, in violation of the Sixth and Fourteenth
Amendments.
IV. Appellant was denied his constitutional right to the effective
assistance of counsel where trial court raised the statutory guideline
scoring issues in arguments I, and II, but failed to raise due process
grounds . . . Appellate counsel also failed.
V. My state appointed defense attorney was ineffective by not
interviewing my kids, thus I was denied my right to counsel to
investigate.
VI. My state appointed trial lawyer was ineffective by not calling any
witnesses. Failing to call actual eyewitness to testify deprived me of
my constitutional right to substantial defense.

Up to this point, the case was assigned to the late Honorable Avern Cohn. Upon
Judge Cohn’s retirement, the matter was assigned to the undersigned.
1

5

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.945 Filed 03/13/23 Page 6 of 15

(ECF No. 6.) Respondent filed an answer in opposition arguing that Devine’s first,
second, fifth and sixth claims are procedurally defaulted and his third claim is
barred by the non-retroactivity doctrine.2
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes the following standard of review for habeas cases:
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 —
(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 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, 405-406 (2000). An “unreasonable application” occurs
Respondent first moved to dismiss the petition under the applicable statute of
limitations but the Court denied Respondent’s motion. (ECF No. 15.)

2

6

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.946 Filed 03/13/23 Page 7 of 15

when “a state-court decision unreasonably applies the law of [the Supreme Court]
to the facts of a prisoner’s case.” Id. at 409.
AEDPA “imposes a highly deferential standard for evaluating state-court
rulings,” and “demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations omitted). A
“state court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). A “readiness to attribute error [to a state
court] is inconsistent with the presumption that state courts know and follow the
law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002).
A state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). This presumption is rebutted only
with clear and convincing evidence. Id. Moreover, for claims adjudicated on the
merits in state court, habeas review is “limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III.

Discussion
A. Scoring of Offense Variables (Claims I and II)
Devine’s first two claims concern the scoring of offense variables. He

argues that the trial court improperly scored 10 points for offense variable 4 (OV
7

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.947 Filed 03/13/23 Page 8 of 15

4) and 50 points for offense variable 7 (OV 7). OV 7 is scored at 50 points when
the victim “was treated with sadism, torture, excessive brutality or similarly
egregious conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” Mich. Comp. Laws § 777.37(1)(a). OV 4 is scored
at 10 points if the victim suffered a “[s]erious psychological injury requiring
professional treatment.” Mich. Comp. Laws § 777.34.
A challenge to a state court’s interpretation and application of Michigan’s
sentencing guidelines is a state law issue not cognizable on federal habeas corpus
review. Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003). And “federal
habeas corpus relief does not lie for errors of state law.” Id. (quoting Estelle v.
McGuire, 502 U.S. 62, 67 (1991)). Thus, Devine’s claim that the trial court erred
when it scored OV 4 and 7 is not cognizable on federal habeas review.
Devine briefly asserts that he was deprived of his right to be sentenced on
the basis of accurate information. (ECF No. 6 at Pg ID 23.) A sentence based on
“extensively and materially false” information which the defendant had no
opportunity to correct may state a federal due process violation. Townsend v.
Burke, 334 U.S. 736, 741 (1948); see also United States v. Tucker, 404 U.S. 443
(1972); Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005). Devine does not
provide any further argument in support of this claim. He does not identify the

8

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.948 Filed 03/13/23 Page 9 of 15

allegedly false information or state any other relevant facts. He, therefore, fails to
show he was sentenced on the basis of inaccurate information.
B.

Judicial Factfinding (Claims III and IV)

As another basis for habeas corpus relief, Devine argues that the trial court
improperly violated his Sixth and Fourteenth Amendment rights by basing his
sentence on facts neither admitted by him nor proven beyond a reasonable doubt.
He also claims that trial counsel was ineffective for failing to raise this claim at
sentencing and that appellate counsel was ineffective for failing to raise it on direct
review.
Under the Sixth Amendment and the Fourteenth Amendment’s due process
clause, any fact that increases a mandatory minimum sentence must be submitted
to a jury and proved beyond a reasonable doubt. Alleyne v. United States, 570 U.S.
99, 111-12 (2013). In People v. Lockridge, the Michigan Supreme Court held that,
under Alleyne, the mandatory application of Michigan’s sentencing guidelines was
unconstitutional. 870 N.W.2d 502, 518-19 (2015). The trial court, the last state
court to issue a reasoned opinion addressing this claim, denied Devine relief
because Lockridge was not retroactively applicable to cases on collateral review.
Devine was sentenced on August 24, 2009. His conviction became final in
2011, well before Alleyne and Lockridge were decided. Alleyne does not apply
retroactively to cases on collateral review. In re Mazzio, 756 F.3d 487, 491 (6th
9

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.949 Filed 03/13/23 Page 10 of 15

Cir. 2014). Similarly, the Michigan Supreme Court limited Lockridge’s
“retroactive effect to cases pending on direct review.” Davis v. Maclaren, No. 171876, 2018 WL 539832, at *1 (6th Cir. Jan. 5, 2018). Devine is not entitled to
relief on this claim.
Devine argues that trial counsel was ineffective for failing to raise this claim
on direct review. To establish ineffective assistance of counsel, a petitioner must
show that counsel’s performance was deficient and the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
state court held that counsel was not ineffective in failing to raise a meritless claim.
(ECF No. 13-13 at Pg ID 349-350.) The trial court’s decision is a reasonable
application of Strickland. See Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir. 2020)
(“The failure to raise a meritless claim does not constitute ineffective assistance of
counsel.”). For the same reason – that counsel is not ineffective for failing to advance a
meritless claim – appellate counsel was not ineffective for failing to raise this claim on
direct review.

C. Ineffective Assistance of Counsel (Claims V and VI)
Devine’s fifth and sixth claims concern the assistance of counsel. He claims
that trial counsel was ineffective for failing to interview his children because they
were eyewitnesses and for failing to call any witnesses. He also claims that
appellate counsel’s failure to raise these claims on direct review was ineffective.
10

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.950 Filed 03/13/23 Page 11 of 15

Respondent argues that these claims are procedurally defaulted. The Court
finds that the claims are unexhausted and, because no avenue remains for state
court exhaustion of these claims, they are procedurally defaulted.
A prisoner seeking federal habeas relief must first exhaust his state court
remedies by fairly presenting the substance of each federal constitutional claim in
state court. 28 U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722, 731
(1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). State prisoners in
Michigan must raise each claim in the Michigan Court of Appeals and in the
Michigan Supreme Court before seeking federal habeas corpus relief. See
Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The petitioner bears the
burden of showing that state court remedies have been exhausted. Prather v. Rees,
822 F.2d 1418, 1420, n.3 (6th Cir. 1987).
Devine raised these claims for the first time on collateral review in his
application for leave to appeal filed in the Michigan Supreme Court. Presentation
of a claim for the first time to the Michigan Supreme Court on discretionary review
does not satisfy the exhaustion requirement. Hickey v. Hoffner, 701 F. App’x 422,
425 (6th Cir. 2017). Devine can no longer exhaust these claims because he already
filed a motion for relief from judgment in the state trial court and does not argue
that his claims fall within the narrow exception to the prohibition against filing
successive motions for relief from judgment in state court. See Mich. Ct. R.
11

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.951 Filed 03/13/23 Page 12 of 15

6.502(G). Where a petitioner “fails to present his claims to the state courts and . . .
is barred from pursuing relief there, his petition should not be dismissed for lack of
exhaustion because there are simply no remedies available for him to exhaust.”
Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995). Instead, Devine’s
claims are procedurally defaulted and will not be considered unless he can show
cause to excuse his failure to present the claims in the state courts and actual
prejudice to his defense at trial or on appeal, or that failure to consider his claims
will result in a fundamental miscarriage of justice. Id.
Devine asserts ineffective assistance of appellate counsel as cause to excuse
his default. While ineffective assistance of appellate counsel might explain
Devine’s failure to raise these claims on direct appeal, it does not excuse Devine’s
own failure to fully present these claims on state court collateral review. See
Gadomski v. Renico, 258 F. App’x 781, 784 (6th Cir. 2007) (explaining that
ineffective assistance of counsel on collateral review does not establish cause
because “there is no right under the federal Constitution to the effective assistance
of collateral counsel”); see also Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir.
2005). Devine cannot attribute his failure to raise these claims in his motion for
relief from judgment or in his application for leave to appeal to the Michigan Court
of Appeals to appellate counsel.

12

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.952 Filed 03/13/23 Page 13 of 15

Accordingly, these claims are procedurally defaulted and barred from review
unless Devine can establish that a constitutional error resulted in a fundamental
miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 321 (1995). The
Supreme Court has tied the miscarriage of justice exception to procedural default
to a petitioner’s innocence. Id. To make a showing of actual innocence, “a
petitioner must show that it is more likely than not that no reasonable juror would
have found the petitioner guilty beyond a reasonable doubt.” Id. at 327. Devine
fails to present new, reliable evidence in light of which no reasonable juror would
have found him guilty. Therefore, these claims are procedurally barred.
Moreover, even assuming the claims are not procedurally defaulted, Devine
is not entitled to relief. Devine argues that had defense counsel interviewed and
called his children to testify the jury would have heard important eyewitness
testimony which would “completely debunk” the prosecutor’s case. (ECF No. 6 at
Pg ID 29.) Devine also vaguely references counsel’s failure to call “any witness”
but it is unclear whether this references his children or other unidentified
witnesses. (Id.)
Defense counsel has a duty to conduct a reasonable investigation into the
facts of a defendant’s case, or to make a reasonable determination that such
investigation is unnecessary. Strickland, 466 U.S. at 690-91. But a conclusory or
speculative argument that counsel should have done more with no supporting
13

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.953 Filed 03/13/23 Page 14 of 15

evidence or offer of proof is insufficient to warrant habeas relief. Wogenstahl v.
Mitchell, 668 F.3d 307, 335-36 (6th Cir. 2012) (“[C]onclusory and perfunctory . . .
claims of [ineffective assistance of counsel] are insufficient to overcome the

presumption of reasonable professional assistance and are insufficient to warrant
habeas relief.”). Devine fails to provide any support for his contention that counsel
failed to investigate or that his children (or other unidentified potential witnesses)
would have testified favorably. His speculative, conclusory claims are insufficient
to overcome the “strong presumption” that counsel rendered effective assistance.
Strickland, 466 U.S. at 689.
IV.

Certificate of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no

automatic right to appeal a district court’s denial or dismissal of the petition.
Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To receive a certificate of
appealability, “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

14

Case 2:12-cv-13125-LVP-DRG ECF No. 18, PageID.954 Filed 03/13/23 Page 15 of 15

proceed further.” Miller-El, 537 U.S. at 336 (2003) (internal quotes and citations
omitted).
Jurists of reason could not debate the conclusion that Petitioner fails to
demonstrate an entitlement to habeas relief. A certificate of appealability is
denied.
The Court grants Petitioner leave to appeal in forma pauperis because an
appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a)(3)(A).
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal if he chooses to appeal this decision. 28 U.S.C. § 1915(a)(3).
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE

Dated: March 13, 2023
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 13, 2023, by electronic and/or
U.S. First Class mail.

s/Aaron Flanigan
Case Manager
15