Henderson v. Rivard

Filing 17

MEMORANDUM OPINION and ORDER Denying 9 Amended Petition for Writ of Habeas Corpus, Declining to Grant a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FRANK DOUGLAS HENDERSON,
Petitioner,
CASE NO. 12-13482
HON. ARTHUR J. TARNOW

v.
SHERRY BURT,
Respondent.
_________________________________/

OPINION AND ORDER
DENYING THE AMENDED HABEAS CORPUS PETITION [9],
DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter has come before the Court on petitioner Frank Douglas Henderson’s
pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges
Petitioner’s state convictions for three counts of third-degree criminal sexual conduct.
See MICH. COMP. LAWS § 750.520d(1)(a) (sexual penetration of a person at least thirteen
years old, but less than sixteen years old). Petitioner is serving a sentence of fifteen to
twenty-five years. He seeks habeas relief on grounds that he was denied his right to a
speedy trial, his trial and appellate attorneys were ineffective, and the cumulative effect
of errors deprived him of due process and a fair trial.
Respondent Sherry Burt argues in an answer to the habeas petition that: a portion
of Petitioner’s speedy-trial claim is not cognizable on habeas review and also is meritless,
and the state appellate court’s decision was not contrary to, or an unreasonable

Henderson v. Burt, No. 14-14625
application of, Supreme Court precedent; Petitioner’s second and third claims regarding
trial and appellate counsel are meritless, and the state courts’ decisions were not contrary
to, or an unreasonable application of, Supreme Court precedent; and Petitioner’s fourth
claim is procedurally defaulted, not cognizable on habeas review, and meritless.
The Court agrees that some of Petitioner’s claims are not cognizable on habeas
review and that the state courts’ decisions were objectively reasonable. Accordingly, the
petition will be denied.
I. Background
The charges against Petitioner arose from two separate incidents that occurred in
the home of the complainant’s aunt in Lansing, Michigan. Petitioner was tried before a
jury in Ingham County Circuit Court where the testimony established that
Henderson was a frequent visitor at the aunt’s home during the time period
in question. The first assault occurred in July or August 2008. The
complainant testified that Henderson came in to the room that she shared
with her brother and cousin and told her that her aunt wanted to see her.
However, instead of taking her to her aunt, Henderson pulled the
complainant into an unoccupied bedroom, where he pushed her onto the
bed, removed her clothes, and penetrated her vagina with his finger and his
penis. The complainant said that Henderson stopped when one of the other
children in the home at the time was seen in the doorway. The
complainant, then 14 years old, did not immediately notify an adult about
the encounter, but instead told her two younger relatives not to tell anyone
what they had seen. At trial, the relatives testified that they had witnessed
the complainant and Henderson together in a room at the aunt’s home.
[The complainant’s] brother specifically stated that he heard his sister
crying and saw Henderson moving up and down on top of her.
The next incident occurred in September 2008, when the complainant again
stayed at her aunt’s house. When complainant learned that Henderson
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would be present without any other adults at the home, she asked her older
cousin to stay, but he refused. Later, Henderson tried to engage the
complainant in conversation, and she tried to leave the room. He prevented
her from leaving, pulled her onto the bed, pushed her clothes down, and
again penetrated her vagina with his finger and his penis. Afterward, the
complainant observed bleeding in her vaginal area. She did not
immediately report this incident either. However, in November 2008, she
eventually told her mother what had occurred, which led to an investigation
and the trial at issue [here].
People v. Henderson, No. 297994, 2011 WL 2463566, at *1 (Mich. Ct. App. June 21,
2011.) Petitioner did not testify, but four defense witnesses testified that Petitioner was
elsewhere at the time of the September 20, 2008 incident or that he was never alone with
the complainant that day.
On March 19, 2010, the jury found Petitioner guilty, as charged, of three counts of
third-degree criminal sexual conduct. On April 21, 2010, the trial court sentenced
Petitioner as a habitual offender to three concurrent terms of fifteen to twenty-five years
in prison.
Petitioner moved for a new trial on the basis that he was not tried within 180 days,
as required by Michigan law. In the same motion, Petitioner requested an evidentiary
hearing where medical experts could testify about the complainant’s sexually transmitted
infection (STI) and where Petitioner could argue that he was denied a fair trial by the trial
court’s refusal to admit evidence of the complainant’s STI and Petitioner’s lack of an
infection. The trial court held oral arguments on the motion and denied it. (Mot. Hr’g, at
3-4, Oct. 19, 2010.)
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In a subsequent appeal, Petitioner raised the same issues, arguing that his
convictions should be overturned because the State did not bring him to trial within 180
days, as required by Michigan law, and that the trial court erred by not granting an
evidentiary hearing with expert medical testimony on the complainant’s STI and
Petitioner’s lack of infection. The Michigan Court of Appeals rejected Petitioner’s
claims and affirmed his convictions in an unpublished, per curiam opinion. See
Henderson, 2011 WL 2463566.
In an application for leave to appeal in the Michigan Supreme Court, Petitioner
raised only the issue about the trial court’s failure to grant an evidentiary hearing on the
complainant’s STI and Petitioner’s lack of infection. On November 21, 2011, the
Michigan Supreme Court denied leave to appeal because it was not persuaded to review
the issue. See People v. Henderson, 490 Mich. 912; 805 N.W.2d 203 (2011) (table).
On August 8, 2012, Petitioner commenced this action by filing a pro se habeas
corpus petition and a motion to hold the petition in abeyance. On September 18, 2012,
the Court granted Petitioner’s motion, held his petition in abeyance pending exhaustion
of additional state remedies, and closed this case for administrative purposes. See Order
Granting Mot. to Hold Pet. in Abeyance, ECF No. 4.
Petitioner then returned to the state trial court and filed a motion for relief from
judgment. He argued that his state and federal rights to a speedy trial were violated and
that his trial and appellate attorneys were ineffective. The trial court’s successor
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determined that it was barred from granting relief on Petitioner’s claims about trial
counsel and the alleged lack of a speedy trial because the Michigan Court of Appeals had
decided those issues on direct appeal. The trial court also stated that trial counsel’s
decision not to pursue an evidentiary hearing was a strategic decision, which did not
constitute ineffective assistance. Finally, the trial court held that appellate counsel was
not ineffective for failing to raise a claim about trial counsel’s performance, because
Petitioner failed to demonstrate that trial counsel’s performance was deficient. See
People v. Henderson, No. 08-1406-FH, Op. and Order (Ingham Cty. Cir. Ct. Apr. 3,
2013). Petitioner moved for reconsideration, but the trial court denied his motion after
concluding that his arguments were unpersuasive and that he was presenting the court
with issues that the court had previously considered and decided. See People v.
Henderson, No. 08-1406-FH, Order Denying Def’t’s Mot. for Reconsideration (Ingham
Cty. Cir. Ct. Apr. 30, 2013).
Petitioner appealed the trial court’s decision on grounds that (1) the trial court
violated Michigan Court Rule 6.508(E) by not reaching the merits of his claims, (2) he
was entitled to a remand for a hearing and a merits decision, (3) his constitutional right to
a speedy trial was denied, (4) trial counsel was ineffective, (5) appellate counsel was
ineffective for not raising these issues on appeal, and (6) structural error occurred. The
Michigan Court of Appeals declined to remand Petitioner’s case and denied his
application for leave to appeal on the basis that Petitioner had failed to establish
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entitlement to relief under Michigan Court Rule 6.508(D). See People v. Henderson, No.
318404 (Mich. Ct. App. Jan. 23, 2014). On September 5, 2014, the Michigan Supreme
Court denied leave to appeal for the same reason. See People v. Henderson, 497 Mich.
853; 852 N.W.2d 177 (2014) (table).
In December of 2014, Petitioner filed another habeas corpus petition in this
District. See Henderson v. Burt, No. 14-14625 (E.D. Mich. Dec. 8, 2014). The Clerk of
the Court randomly assigned the 2014 petition to another judge in this District, but
because the 2014 petition challenged the same convictions as the 2012 petition, it was
subsequently reassigned to this Court. On December 23, 2014, the Court consolidated
the two cases, re-opened this case, amended the caption, and closed the 2014 case. See
Order of Consolidation, ECF No. 6. Respondent Sherry Burt subsequently filed an
answer to the petition, ECF No. 12, and Petitioner filed a reply, ECF No. 14.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposed
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

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(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 proceedings.

28 U.S.C. § 2254(d).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). In fact,
“[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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
The state court decision must be “so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” White v. Woodall, 572 U.S. ––––,
––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (internal quotation
marks omitted).
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016). Additionally, this Court must presume
the correctness of a state court’s determination of factual issues unless the petitioner
rebuts the presumption with clear and convincing evidence. Holland v. Rivard, 800 F.3d
224, 242 (6th Cir. 2015) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 136 S. Ct. 1384
(2016).

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III. Analysis
A. Speedy Trial
Petitioner alleges that he was denied his state and federal right to a speedy trial.
Petitioner raised this issue in the Michigan Court of Appeals on direct appeal. The Court
of Appeals determined that the Michigan statute on which Petitioner relied and the
corresponding court rule were not applicable because the statute and rule were limited to
state prisoners, and Petitioner was a county detainee at the time. The Court of Appeals
also stated that, to the extent Petitioner challenged the delay on constitutional grounds,
his argument failed because he did not raise the issue of prejudice.
Petitioner also raised his speedy trial claim in his motion for relief from judgment
and the subsequent appeal. The state trial court concluded that it was barred from
granting relief because the issue was decided against Petitioner on direct appeal and there
had been no retroactive change in the law that undermined the appellate court’s decision.
Petitioner contends that the trial court erred by failing to provide a reasoned
analysis of his constitutional claim. Petitioner also contends that the delay in trying him
was presumptively prejudicial and that it impeded his defense.
1. Clearly Established Federal Law
The alleged violation of Petitioner’s right to a speedy trial under state law fails
because “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
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limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
Petitioner nevertheless did have a federal constitutional right to a speedy trial. See
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial . . . . ”). This right “is ‘fundamental’ and is imposed by the Due
Process Clause of the Fourteenth Amendment on the States.” Barker v. Wingo, 407 U.S.
514, 515 (1972).
When determining whether a particular defendant was deprived of his right to a
speedy trial, courts must consider and balance the following four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a
speedy trial, and (4) any prejudice to the defendant. Id. at 530. Stated differently, there
are four relevant inquiries:
whether delay before trial was uncommonly long, whether the government
or the criminal defendant is more to blame for that delay, whether, in due
course, the defendant asserted his right to a speedy trial, and whether he
suffered prejudice as the delay’s result.
Doggett v. United States, 505 U.S. 647, 651–52 (1992) (citing Barker, 407 U.S. at 530).
[N]one of the four factors identified above [is] either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy
trial. Rather, they are related factors and must be considered together with
such other circumstances as may be relevant.
Barker, 407 U.S. at 533.

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2. Application
a. Length of the Delay
“The length of the delay is to some extent a triggering mechanism. Until there is
some delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance.” Id. at 530. “The length is measured from the
earlier of the date of arrest or the date of indictment.” United States v. Young, 657 F.3d
408, 414 (6th Cir. 2011). “A one-year delay is presumptively prejudicial and triggers
analysis of the remaining Barker factors.” Brown v. Romanowski, 845 F.3d 703, 714 (6th
Cir. 2017) (citing Doggett, 505 U.S. at 652 n.1, and Maples v. Stegall, 427 F.3d 1020,
1026 (6th Cir. 2005)).
Petitioner alleges that he surrendered to law enforcement authorities on November
17, 2008, and the record indicates that he was formally arrested on December 8, 2008.
He was held in jail until his trial commenced about sixteen months later on March 16,
2010. (Pet. for Writ of Habeas Corpus, ECF No. 9, Argument 1, at 5; Mot. Hr’g, at 3-4,
Oct. 19, 2010; People v. Henderson, No. 08-001406-FH, Ingham County Cir. Ct. Docket,
at 6 and 11.) Because Petitioner was tried more than a year after his arrest, the pretrial
delay was presumptively prejudicial, and the Court is required to evaluate the other
Barker factors.
b. Reason for the Delay
The second Barker factor is the reason for the delay.
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[T]he court considers who is most at fault—the government or the
defendant. United States v. Schreane, 331 F.3d 548, 554 (6th Cir. 2003).
“Governmental delays motivated by bad faith, harassment or attempts to
seek a tactical advantage weigh heavily against the government.” Id. at
553. Negligence and unexplained delay also weigh against the government,
albeit less heavily, “ ‘but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.’ ” Id. at 554 (quoting Barker,
407 U.S. at 531, 92 S. Ct. 2182). The State bears the burden of explaining
the cause of the delay. See [United States v. Brown, 169 F.3d 344, 349 (6th
Cir. 1999)]; Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir. 1987).
Brown v. Romanowski, 845 F.3d at 714.
Petitioner’s trial initially was set for March 23, 2009. It was subsequently rescheduled for May 26, 2009 and then June 15, 2009. (People v. Henderson, No. 08001406-FH, Ingham County Cir. Ct. Docket, at 10-11.) The reasons for those delays are
unknown, but even assuming that the unexplained delays are attributable to the State,
much of the remaining delay in the case was Petitioner’s fault.
On June 2, 2009, for example, Petitioner, through counsel, moved for a bill of
particulars on count one of the criminal complaint, and he asked for permission to take a
polygraph test. The trial court adjourned the trial to the next docket, partly because of
Petitioner’s request for a polygraph test and partly because the parties were waiting for
the results of tests performed on Petitioner pursuant to a Michigan statute to determine
whether Petitioner had any STI’s. (Mot. Hr’g Tr., at 3-7, June 2, 2009.)
Subsequent trial dates set for July, September , and October of 2009, came and
went, and on October 23, 2009, Petitioner requested additional tests to determine whether
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he had contracted the particular STI that the complainant had contracted. After Petitioner
waived any objection to the delay in trying him, the trial court adjourned the trial.
(Pretrial Conference, at 3-6, Oct. 23, 2009.)
The trial date was re-scheduled for Monday, November 30, 2009, but prior to that
date, Petitioner renewed his motion for a bill of particulars and requested additional
discovery. At a hearing on the motions, the trial court adjourned the trial to the
following January to accommodate Petitioner’s request for discovery. (Mot. Hr’g at 313, Nov. 25, 2009.) Then, Petitioner became unhappy with his trial attorney, and the
attorney was permitted to withdraw from the case on January 11, 2010.
In early February of 2010, a different attorney was appointed to represent
Petitioner, and on the next date set for trial (February 16, 2010), the new attorney asked
for an adjournment of the trial so that he could interview witnesses. Although Petitioner
informed the trial court that counsel was incompetent and that he disagreed with the trial
court’s proposal to adjourn the trial, he also stated that he did not want to go ahead with
the trial. The trial court refused to replace the attorney and then adjourned the trial to
mid-March 2010. (Hr’g Tr. at 3-13, Feb. 16, 2010.) The trial commenced on March 16,
2010.
Petitioner’s motions resulted in adjournments of the trial date for about nine
months: from mid-June 2009 to mid-March of 2010. “When a party makes motions, it
cannot use the delay caused by those motions as a basis for a speedy-trial claim.” Young,
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657 F.3d at 415 (citing United States v. Loud Hawk, 474 U.S. 302, 316–17 (1986)
(quoting United States v. Auerbach, 420 F.2d 921, 924 (5th Cir. 1969)). Here, more than
half of the delay in this case is attributable to Petitioner, leaving only about seven months
of the delay attributable to the State. The second Barker factor weighs against Petitioner
and in favor of the State.
c. Assertion of the Right
The third Barker factor is whether the defendant asserted his right to a speedy
trial. Petitioner waived his right to a speedy trial at the pretrial conference on October 23,
2009, and he did not complain about the delay in trying him until after he was tried and
convicted. The third factor, therefore, weighs in favor of the State.
d. Prejudice
The fourth factor is prejudice to the defendant. The Sixth Circuit has pointed out
that “presumptively prejudicial” for purposes of triggering the Barker fourfactor inquiry is different from “presumptively prejudicial” for purposes of
assessing the prejudice prong. The first only requires that the delay have
approached one year. The latter concerns whether the delay was excessive.

Maples, 427 F.3d at 1030. “In the Sixth Circuit, no presumption has been found where
delay due to government fault is considerably less than that in [United States v. Graham,
128 F.3d 372 (6th Cir. 1997) (eight years)] or in [United States v. Brown, 169 F.3d 344
(6th Cir. 1999) (five and a half years)], or where the government can persuasively rebut

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the presumption by showing that the delay did not impair the defendant’s defense.” Id. at
1031 (collecting cases).
The pretrial delay in Petitioner’s case (about sixteen months) was much less than
that in Graham or Brown. Furthermore, Petitioner has not shown that he was actually
prejudiced by the delay. He mentions in his habeas petition that prejudice can result from
distortions in memories (Pet. for Writ of Habeas Corpus, Argument 1 at 6), but the
defense witnesses appeared to have no trouble remembering where Petitioner was on the
afternoon of September 20, 2008, the date and time of the second assault on the
complainant.
In his post-conviction motion in state court, Petitioner claimed prejudice by
suggesting that the complainant accused him of criminal sexual conduct to protect
someone else who must have given her the STI. The complainant, however, reported the
assaults and identified Petitioner as her assailant less than one month after the second
assault and before she was tested for STI’s. Petitioner turned himself in to the police a
few days later. The subsequent delay in trying Petitioner was not the complainant’s fault.
Petitioner also alleged in his post-conviction motion that, during the pretrial delay,
Crystal Nequist became engaged and could not admit at Petitioner’s trial that she
previously had unprotected sex with Petitioner and did not become infected with an STI.
The trial court, however, precluded Petitioner from pointing out that the complainant had
contracted an STI. (Trial Tr. Vol. I, at 9-13, Mar. 16, 2010.) Testimony that Ms. Nequist
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had unprotected sex with Petitioner in 2008 and did not become infected with an STI
would have been meaningless in the absence of any evidence that the complainant had
contracted an STI. The Court concludes that Petitioner has failed to establish any
prejudice as a result of the delay in trying him.
To summarize, the delay in trying Petitioner was long enough to trigger the other
three Barker factors, but the delay was largely the result of Petitioner’s motions and his
dissatisfaction with his first attorney. Additionally, Petitioner did not raise the issue until
after trial, and he has not shown that the delay impaired his defense. The first Barker
factor weighs in Petitioner’s favor, but the other three factors weigh in the State’s favor
and lead to the conclusion that Petitioner’s Sixth Amendment right to a speedy trial was
not violated. The Michigan Court of Appeals reasonably concluded that Petitioner’s
constitutional right to a speedy trial failed. Habeas relief is not warranted on Petitioner’s
speedy trial claim.
B. Trial Counsel
Petitioner alleges next that he was denied his right to effective assistance of trial
counsel. He claims that trial counsel: (1) failed to understand that Petitioner’s lack of an
STI was probative of his innocence, failed to provide legal advice beyond recommending
that Petitioner take a deal, and failed to adequately investigate the options, defenses, and
leads that Petitioner provided; (2) failed to use Petitioner’s medical records, which
showed he was not infected with an STI, and other documents, which explained the
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nature of the complainant’s STI; (3) failed to assert a viable defense theory, failed to
discover that the complainant’s brother did not provide a verbatim statement, and failed
to form a reasonable cross-examination strategy; (4) failed to request a hearing regarding
the interview techniques used on the complainant and the other young witnesses; (5)
failed to consult a medical doctor to ascertain the importance of Petitioner’s lack of an
STI and failed to introduce evidence that the complainant had two STI’s; (6) failed to
interview two alibi witnesses; (7) failed to use effective cross-examination to elicit
testimony about the complainant’s two STI’s and failed to produce three women who
could have testified that they had unprotected sex with Petitioner and did not develop
STI’s; and (8) failed to conduct an effective cross-examination of the complainant’s aunt.
Petitioner also contends that the cumulative effect of counsel’s errors prevented counsel
from making an effective closing argument.
1. Clearly Established Federal Law
“There is no dispute that the clearly established federal law here is Strickland v.
Washington,” 466 U.S. 668 (1984). Cullen v. Pinholster, 563 U.S. 170, 189 (2011).
To prevail on his claim, Petitioner must demonstrate “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466
U.S. at 687. The “deficient performance” prong of this test “requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
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To demonstrate that counsel’s performance prejudiced the defense, a defendant
must show “that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is not reliable.” Id. There must be “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. “This does not require a showing that counsel’s actions ‘more
likely than not altered the outcome,’ ” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011)
(quoting Strickland, 466 U.S. at 693).
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v. Pinholster,
563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because
counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 17, 187
L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted).
In such circumstances, federal courts are to afford “both the state court and
the defense attorney the benefit of the doubt.” Burt, supra, supra, at ––––,
134 S.Ct., at 13.
Etherton, 136 S. Ct. at 1151. Given this highly deferential standard, the Court concludes
for the following reasons that defense counsel was not ineffective.

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2. Application
a. Failure to Introduce Evidence about STI’s
Several of Petitioner’s claims about trial counsel pertain to the complainant’s
STI’s and Petitioner’s lack of an STI. Petitioner alleges that his attorney failed to
understand that Petitioner’s clean bill of health was highly probative of his innocence of
the crime. He asserts that trial counsel should have: introduced evidence that the
complainant had two STI’s; produced or cross-examined witnesses about the
complainant’s STI’s and the other witnesses lack of an STI; used Petitioner’s medical
records to show that Petitioner was not infected; and consulted a medical doctor to
ascertain the importance of Petitioner’s lack of infection.
This issue arose on the first day of trial when the prosecutor moved to preclude
defense counsel from introducing evidence that the complainant had an STI. Defense
counsel argued in favor of allowing the evidence to be admitted on the basis that the
complainant’s infection was the motivation for her accusations against Petitioner.
Defense counsel pointed out that, according to his research, the infection does not go
away unless treated, and jail records indicated that Petitioner was not treated for any
diseases. The trial court granted the prosecutor’s request and ruled that, without any
additional foundation showing that the infection stays with a person unless he or she is
treated, the evidence was too remote to be admitted. (Trial Tr. Vol. I, at 9-13, Mar. 16,
2010.)
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Given the trial court’s ruling, defense counsel was not ineffective for failing to
introduce evidence, or question witnesses, about STI’s. Although defense counsel could
have attempted to lay a better foundation to support his request to admit the evidence, the
prosecutor stated that she had consulted an expert in microbiology who informed her that
the STI which the complainant had contracted could be transmitted not only sexually, but
through a towel that was used by an infected person. According to the prosecutor, the
microbiologist also explained to her that men often are more asymptomatic than women,
men frequently have false negative results when tested and can transmit the infection
even if they test negative, and the infection can be cured easily with antibiotics. Id. at 10.
In light of this information, evidence about the complainant’s STI’s and
Petitioner’s lack of an STI would have had limited probative value and could have been
detrimental to Petitioner. The trial court reasonably concluded on post-conviction review
that counsel’s decision not to pursue the issue was a strategic decision.
The Sixth Circuit Court of Appeals reached the same conclusion in a similar case
where the habeas petitioner alleged that defense counsel was ineffective for failing to
adequately present information about an STI. The Sixth Circuit concluded from the
record that defense counsel “reasonably determined his time was better spent on other
defense theories . . . .” See Rayner v. Mills, 685 F.3d 631, 640 (6th Cir. 2012). This
Court concludes that defense counsel was not ineffective for failing to introduce evidence
about STI’s.
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2. Failure to Assert a Viable Defense Theory
Petitioner alleges that trial counsel failed to discover that the complainant’s young
brother did not provide a verbatim statement, which could have been used to determine
whether his trial testimony was consistent with his statement and with other testimony.
The brother, however, was only eight years old at the time of the incident in question, and
he was not required to provide a written statement about his observations of Petitioner
and the complainant. Furthermore, to his credit, defense counsel pointed out during
closing arguments that the brother’s testimony was somewhat inconsistent with the
complainant’s testimony. (Trial Tr. Vol. III, at 120-21, Mar. 19, 2010.)
Petitioner also alleges that trial counsel failed to assert a viable defense. But
defense counsel had a difficult case to defend, given the complainant’s testimony, which
the trial court described at sentencing as “persuasive and credible,” and the corroborating
testimony of the complainant’s mother and her young relatives. The examining nurse,
moreover, testified that the complainant had said Petitioner penetrated her with his penis,
and a police officer testified that, based on the details provided by the complainant, she
thought the complainant was the victim of a sexual assault.
Defense counsel did present four witnesses, who indicated that Petitioner could
not have committed the crimes. Defense counsel also insinuated that the complainant
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was not honest or credible, and he argued to the jury that certain contradictions in the
witnesses’ testimony warranted skepticism. These were reasonable trial tactics, which
did not amount to ineffective assistance.
3. Interview Techniques
Next, Petitioner alleges that defense counsel should have requested a hearing
regarding the interview techniques used on the complainant and the other young
witnesses. Petitioner contends that state law requires law enforcement officials to take
precautions when questioning young witnesses to ensure they are interviewed in a nonadversarial manner. He maintains that the complainant’s young brother and young
cousin were tainted witnesses and that defense counsel should have requested a hearing
“to unravel their false corroborative testimony.”
There is no basis in the record for concluding that suggestive techniques were used
on the young witnesses or that their testimony was false. The complainant was not
subjected to multiple forensic interviews, which could have tainted her version of the
facts; rather, she disclosed the sexual assaults to her mother and then spoke with a police
officer and the nurse who examined her. She was unwavering in her testimony at trial,
and it appears that her testimony was consistent with her pretrial disclosures.
As for the other young witnesses, Petitioner has failed to show that the lack of a
hearing on whether the police used suggestive interview techniques on them prejudiced
his defense. Defense counsel elicited testimony from the complainant’s young cousin
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that, although the child may have told a detective he saw Petitioner and the complainant
having sex (Trial Tr. Vol. II, at 112, Mar. 18, 2010), the child, in fact, did not see any
sexual activity (id. at 116). Defense counsel was able to show on cross-examination of
the other young witness that his testimony was inconsistent with the complainant’s
testimony. (Id. at 129.) The Court concludes that defense counsel performed adequately
insofar as the young witnesses were concerned, and his failure to request a hearing on
whether the police used proper interview protocol on the witnesses did not prejudice
Petitioner.
4. Failure to Interview Alibi Witnesses
Petitioner alleges that defense counsel failed to interview two alibi witnesses who
could have testified that no crime occurred. Counsel did produce four witnesses who
indicated that Petitioner was not present at the time of the September assault or was not
alone with the complainant that day. Petitioner has not demonstrated that the two
additional witnesses (the girlfriend of the complainant’s older cousin and the boyfriend or
husband of a neighbor) would have been willing and able to testify in his defense. It
further appears that both of the witnesses would have given cumulative testimony.
Petitioner has failed to show that, but for counsel’s failure to interview or produce
the two additional alibi witnesses, there is a substantial likelihood the result of the trial
would have been different. Thus, counsel’s omissions did not prejudice Petitioner.

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5. The Cross-Examination of the Complainant’s Aunt
Petitioner asserts that defense counsel made a mistake when cross-examining the
complainant’s aunt, Ms. L. McGuire. Defense counsel asked Ms. McGuire about a night
in August of 2008 when she went upstairs in her home and saw Petitioner and the
complainant in one of her bedrooms. Petitioner was sitting on the bed, and the
complainant was sitting on the floor. Counsel’s next question was, “What were they
doing from what you saw?” Ms. McGuire responded, “I asked [the complainant] what
was she doing up [t]here and she – .” Ms. McGuire was interrupted at that point by the
prosecutor who made a hearsay objection. The trial court then excused the jury, and Ms.
McGuire explained that the complainant had said she and Petitioner were merely talking.
Defense counsel argued in favor of admitting Ms. McGuire’s response on the basis that
the response was not admitted for the truth of the matter. The trial court, however,
agreed with the prosecutor that the comment was classic hearsay, which was
inadmissible. (Trial Tr. Vol. III, at 47-50, Mar. 19, 2010.)
Petitioner alleges that defense counsel lost his focus by arguing that Ms.
McGuire’s testimony was not admitted for the truth of the matter. Petitioner maintains
that defense counsel should have asked the trial court to direct McGuire to testify about
what she saw and not what she heard.
Although Petitioner contends that counsel’s omission prevented the jury from
learning what Ms. McGuire saw, defense counsel managed to elicit this information when
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the jury returned to the courtroom. He asked Ms. McGuire whether Petitioner and the
complainant had been fully dressed when she observed them and whether Ms. McGuire
was aware of anything inappropriate going on. Ms. McGuire answered that both
Petitioner and the complainant were fully dressed at the time and that there was no
indication something inappropriate had occurred. (Id. at 50-51.) Counsel’s crossexamination of Ms. McGuire did not amount to ineffective assistance.
6. The Cumulative Effect of Counsel’s Errors
Petitioner’s final argument about trial counsel is that the cumulative effect of his
errors prevented him from making an effective closing argument. “The Supreme Court
has not held that constitutional claims that would not individually support habeas relief
may be cumulated in order to support relief.” Scott v. Elo, 302 F.3d 598, 607 (6th Cir.
2002) (citing Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002)). And “because the
individual claims are all essentially meritless, [Petitioner] cannot show that the
cumulative error[s] violated his constitutional rights.” Keith v. Mitchell, 455 F.3d 662,
679 (6th Cir. 2006) (citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)).
C. Appellate Counsel
Petitioner claims that appellate counsel was ineffective because she failed to raise
viable claims about trial counsel’s performance, she raised the speedy trial claim under
the wrong statute in the Michigan Court of Appeals, and she abandoned that claim in the
Michigan Supreme Court. Petitioner first raised this issue in his motion for relief from
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judgment. The trial court concluded that trial counsel’s performance was not deficient
and, therefore, appellate counsel’s failure to raise a claim about trial counsel did not fall
below an objective standard of reasonableness.
The proper standard for evaluating Petitioner’s claim about appellate counsel is
the one enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). To
demonstrate that appellate counsel was ineffective, Petitioner must show (1) that his
attorney acted unreasonably in failing to discover and raise nonfrivolous issues on appeal
and (2) there is a reasonable probability that he would have prevailed on appeal if his
attorney had raised the issues. Id. (citing Strickland, 466 U.S. at 687-91, 694). The
Court is also mindful that
[i]ndigent appellants have no constitutional right to compel their appointed
attorneys to make every nonfrivolous argument on appeal. Evitts v. Lucey,
469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Jones v. Barnes,
463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Tactical
choices about which claims to raise on appeal “are properly left to the
sound professional judgment of counsel. . . .” United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate
advocacy” is the “process of ‘winnowing out weaker arguments on appeal
and focusing on’ those more likely to prevail.” Smith v. Murray, 477 U.S.
527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S.
at 751–52, 103 S.Ct. 3308). “Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986) (quoted in Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.
2002)). “[A]n appellate advocate may deliver deficient performance and
prejudice a defendant by omitting a ‘dead-bang winner,’ even though
counsel may have presented strong but unsuccessful claims on appeal.”
United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995) (citing Page v.
United States, 884 F.2d 300, 302 (7th Cir. 1989)). A “dead-bang winner” is
an issue which was obvious from the trial record, see e.g., Matire v.
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Henderson v. Burt, No. 14-14625
Wainwright, 811 F.2d 1430, 1438 (11th Cir. 1987) (counsel’s failure to
raise issue which “ ‘was obvious on the record, and must have leaped out
upon even a casual reading of [the] transcript’ was deficient performance),
and one which would have resulted in a reversal on appeal.” Id.
Meade v. Lavigne, 265 F. Supp. 2d 849, 869–70 (E.D. Mich. 2003).
The Michigan Court of Appeals determined on direct appeal that the Michigan
statute cited by appellate counsel in her appellate brief did not apply to Petitioner. But
even assuming that appellate counsel’s performance was deficient, the deficient
performance did not prejudice Petitioner because his speedy trial claim was not a “deadbang winner;” it lacks merit for the reasons given above.
As for appellate counsel’s failure to argue that trial counsel was ineffective, the
underlying claims about trial counsel also lack merit. See, supra, Section III.B. Because
trial counsel performed adequately, the Court’s “inquiry is at an end; by definition,
appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.”
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
The state trial court’s adjudication of Petitioner’s claim was not contrary to, or an
unreasonable application of, Strickland or Robbins. Thus, habeas relief is not warranted
on Petitioner’s claim about appellate counsel.
D. Cumulative Effect of Errors
In his fourth and final claim, Petitioner alleges that the numerous errors in his case
had a cumulative impact on his trial and appeal. Although Respondent argues that this

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claim is procedurally defaulted because Petitioner did not exhaust state remedies for the
claim and no longer has a state remedy to exhaust, “a procedural default, that is, a critical
failure to comply with state procedural law, is not a jurisdictional matter.” Trest v. Cain,
522 U.S. 87, 89 (1997).
Furthermore, Petitioner’s contention that the cumulative effect of errors deprived
him of a fair trial and a fair appeal is not a cognizable claim on habeas corpus review.
Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d
250, 256 (6th Cir. 2005)). And there were no constitutional errors that could be
cumulated to deprive Petitioner of a fair trial or a fair appeal. The Court therefore
declines to grant relief on Petitioner’s fourth claim.
IV. Conclusion
The state courts’ rejection of Petitioner’s claims did not result in decisions that
were contrary to Supreme Court precedent, unreasonable applications of Supreme Court
precedent, or unreasonable determinations of the facts. The decisions certainly were not
so lacking in justification that there was an error beyond any possibility for fairminded
disagreement. The Court therefore denies Petitioner’s application for the writ of habeas
corpus.

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V. Certificates of Appealability
and
Leave to Proceed In Forma Pauperis on Appeal
Petitioner may not appeal this Court’s opinion and order denying his habeas
petition without a certificate of appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1), and 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).
When, as here, “a district court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Reasonable jurists would not find the Court’s assessment of Petitioner’s claims
debatable or wrong. The Court therefore declines to issue a certificate of appealability.
The Court nevertheless will allow Petitioner to proceed in forma pauperis on appeal,
because an appeal from this decision could be taken in good faith. 28 U.S.C. §
1915(a)(3).
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: April 11, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on April 11, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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