Mattison v. Perry

Filing 23

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, and 15 MOTION to Reopen Case; MOTION to Amend/Correct, Declining to Issue a Certificate of Appealability, and Granting Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY RALPH MATTISON,
Petitioner,
v.

Case No. 2:13-cv-11026
HONORABLE STEPHEN J. MURPHY, III

MITCH PERRY,
Respondent.
___________________________________/
OPINION AND ORDER DENYING
THE PETITION AND SUPPLEMENTAL PETITION [1, 15]
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Anthony Ralph Mattison, a state prisoner at the Newberry Correctional
Facility in Newberry, Michigan, has filed a pro se petition and supplemental petition for
habeas relief pursuant to 28 U.S.C.§ 2254. Mattison challenges his convictions for firstdegree criminal sexual conduct involving his biological daughter by alleging that (1) the
trial court violated his constitutional rights, (2) the evidence at trial was insufficient, (3)
trial counsel was ineffective, (4) the prosecutor committed misconduct, and (5) he is
actually innocent of the crimes for which he is incarcerated. Respondent Mitch Perry
urges the Court to deny the petitions on grounds that Mattison procedurally defaulted
his claim about the trial court, his actual-innocence claim is not cognizable on habeas
review, and the state courts reasonably rejected Mattison's remaining claims. The Court
agrees that Mattison's claims do not warrant habeas relief. Accordingly, the petition and
supplemental petition will be denied.

BACKGROUND
Mattison was bound over for trial in Wayne County Circuit Court on sixteen
counts of first-degree criminal sexual conduct. The Michigan Court of Appeals
accurately summarized the evidence at trial as follows:
Defendant and the victim's mother divorced when the victim was three or
four years old, and remarried when the victim was 11 years old. In the
interim, the victim lived with her mother and visited defendant every other
weekend. The victim, aged 18 at the time of trial, testified that defendant
began engaging in sexual acts with her when she was about 11 or 12
years old. She explained that defendant eventually began having sexual
intercourse with her "two to three times a week, if not more." The sexual
acts occurred in different rooms throughout the house and inside
defendant's van. The victim indicated that defendant warned that if she
disclosed the acts he would kill the person she told or would hurt her.
During the first incident that the victim could recall, defendant directed her
into the basement, kissed her "on the mouth," and put her hand on his
penis. The victim testified that as she developed, defendant began having
sexual intercourse with her. The victim further testified that defendant also
had "oral" sex with her, and explained that defendant's "tongue would kiss
[her] vagina." The victim also indicated that defendant "made [her] suck or
kiss his penis." The victim explained that the last sexual act occurred in
February 2007, when defendant had sexual intercourse with her in his van
while parked in a mall parking lot. Three days later, the victim disclosed
the incidents to a schoolteacher. The victim subsequently reported to the
police that after the last act of sexual intercourse, defendant ejaculated on
a particular seat in his van. Deoxyribonucleic acid (DNA) testing of semen
taken from the van seat revealed the presence of DNA that matched a
DNA sample taken from defendant.
At trial, defendant denied any wrongdoing and argued that the victim was
not credible, was manipulative, and wanted her parents to remain
separated for her own personal gain. Defendant testified that the semen
stains in his van were deposited when he twice had sexual intercourse
with a coworker in May 2007.
People v. Mattison, No. 283212, 2009 WL 1441548, at *1 (Mich. Ct. App. May 21,
2009).

2

The prosecutor dismissed ten of the sixteen counts at the close of the proofs,
and the case was sent to the jury on six counts of first-degree criminal sexual conduct.
On November 14, 2007, the jury found Mattison guilty of five counts of criminal sexual
conduct, including two counts of sexually penetrating the complainant when she was
under the age of thirteen, see Mich. Comp. Laws § 750.520b(1)(a), and three counts of
sexually penetrating the complainant when she was thirteen, fourteen, or fifteen years
old, see Mich. Comp. Laws § 750.520b(1)(b). The jury acquitted Mattison of one count
of first-degree criminal sexual conduct with the complainant when she was under the
age of thirteen. On December 6, 2007, the trial court sentenced Mattison to five
concurrent terms of 15 to 30 years in prison.
On appeal, Mattison made five arguments through counsel: (1) the evidence at
trial was insufficient to support his convictions, (2) the prosecutor shifted the burden of
proof during closing arguments, (3) the trial court erroneously scored two offense
variables of the state sentencing guidelines, (4) he should be re-sentenced before a
different judge because the trial judge was biased, and (5) the trial court failed to correct
inaccurate information in his pre-sentence report. He also filed a pro se supplemental
brief and raised additional issues concerning his trial attorney, the prosecutor, and the
trial judge.
The Michigan Court of Appeals affirmed Mattison's convictions, but vacated his
sentence and remanded the case for re-sentencing and correction of the pre-sentence
report. See Mattison, 2009 WL 1441548, at *1, *8. On January 29, 2010, the Michigan

3

Supreme Court denied leave to appeal because it was not persuaded to review the
issues. See People v. Mattison, 485 Mich. 1074 (2010).
On April 23, 2010, the trial court re-sentenced Mattison to five concurrent terms
of 11 years and three months to 30 years in prison. Mattison appealed his new
sentence through counsel on the ground that the sentence violated the principles of
proportionality. In another pro se supplemental brief, he attempted to raise issues about
alleged errors that occurred during his trial and initial sentencing. The Michigan Court of
Appeals affirmed Mattison's new sentence but declined to address the pro se claims
that went beyond the scope of the appeal or that the Court of Appeals had previously
rejected. See People v. Mattison, No. 298703, 2011 WL 4949693 (Mich. Ct. App. Oct.
18, 2011). On May 21, 2012, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the issues. See People v. Mattison, 491 Mich.
919 (2012). On October 1, 2012, the United States Supreme Court denied Mattison's
petition for the writ of certiorari. See Mattison v. Michigan, 568 U.S. 910 (2012) (Mem.).
On March 6, 2013, Mattison commenced this action by filing a petition for a writ
of habeas corpus. But before the State could file an answer, Mattison moved to stay the
federal proceedings and to hold his habeas petition in abeyance while he pursued
additional state remedies. ECF 11. The Court granted Mattison's motion and closed this
case for administrative purposes. ECF 12.
Mattison then filed a pro se motion for relief from judgment in the state trial court.
He raised four arguments: (1) the trial court judge and jury were biased, thus depriving
him of his constitutional rights, (2) trial counsel was ineffective, (3) the prosecutor was

4

guilty of misconduct, and (4) both trial and appellate counsel failed to raise meritorious
claims on his behalf. The trial judge's successor denied the post-conviction motion
because Mattison had raised his claims about the prosecutor's conduct, the trial judge's
alleged bias, and trial counsel in his appeal of right. The successor trial court also stated
that Mattison had failed to show that the trial judge was personally biased against him or
that the alleged comments actually occurred. See People v. Mattison, No. 07-00622301-FC (Wayne Cty. Cir. Ct. Mar. 6, 2014). Mattison sought reconsideration on the basis
that the trial judge cancelled his bond without giving a reason and that the trial judge's
successor failed to review the evidence he attached to his motion for relief from
judgment. The successor trial court denied the motion for reconsideration after it
concluded that the issue about bond lacked merit and that it could not consider any of
the items that Mattison attached to his motion for relief from judgment. See People v.
Mattison, No. 07-006223-01-FC (Wayne Cty. Cir. Cr. Apr. 2, 2014).
Mattison appealed the trial court's decisions, but the Michigan Court of Appeals
denied the delayed application for leave to appeal because Mattison failed to establish
entitlement to relief under Michigan Court Rule 6.508(D). See People v. Mattison, No.
321810 (Mich. Ct. App. Sept. 4, 2014). On April 28, 2015, the Michigan Supreme Court
denied leave to appeal for the same reason. See People v. Mattison, 497 Mich. 1012
(2015). On November 24, 2015, the Michigan Supreme Court denied Mattison's motion
for reconsideration. See People v. Mattison, 498 Mich. 922 (2015).
On July 22, 2015, Mattison filed a combined supplemental habeas petition and
motion to re-open this case. ECF 15. The Court granted the motion, and on May 11,

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2016, the State filed an answer to the petition. ECF 16, 19. Mattison filed his reply on
June 2, 2016. ECF 21.
STANDARD OF REVIEW
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
the following standard applies in federal 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).
The grounds for granting habeas relief are therefore narrow. 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 but nevertheless
arrives at a result different from that precedent. Mitchell v. Esparza, 540 U.S. 12, 15–16
(2003). And a state court's application is "unreasonable" when it identifies the correct
governing legal principle from the Supreme Court's cases but unreasonably applies that
principle to the facts of the petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520
(2003). But the state court's application must be more than incorrect or erroneous; it

6

must be "objectively unreasonable." Id. at 520–21. So "even a strong case for relief
does not mean the state court's contrary conclusion was unreasonable." Harrington v.
Richter, 562 U.S. 86, 102 (2011). Rather, to obtain federal habeas relief, a state
prisoner must show that the state court's rejection of his claims "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 103.
Timing also plays a role. The state court's decision is judged by the clearly
established federal law as determined by the Supreme Court at the time the state court
renders its decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). And a state court's
determination of a factual issue is presumed correct unless rebutted by 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). Later discoveries are also
unavailing, because review is "limited to the record that was before the state court that
adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
ANALYSIS
I.

The Trial Court
Mattison's case was thrice before the Michigan Court of Appeals. His third appeal

concerned the denial of his motion for reconsideration. The court rejected all of his
claims because he could have raised them—or actually did raise them—in his earlier
appeals. Respondent therefore argues that Mattison's claims about the trial court are

7

procedurally defaulted. See Answer in Opp'n to Pet. for Writ of Habeas Corpus at 24–
25.1
The Court of Appeals, however, did not say which of Mattison's claims were
barred by his failure to raise the claims on direct appeal and which claims were decided
against him in a prior appeal. Its order is ambiguous, and ambiguous orders do not
provide an adequate and independent state ground for denying review of a federal
constitutional claim. Peoples v. Lafler, 734 F.3d 503, 511 (6th Cir. 2013). The Court
therefore declines to find that Mattison's claims about the trial court are procedurally
defaulted and will review his judicial-misconduct claims on the merits.
A. Revoking Bond
Mattison claims that the trial court deprived him of a protected liberty interest by
revoking or modifying his bond before trial. Mattison admits that he was released on
bond a week later. More importantly, his claim to pretrial bail became moot once he was
convicted. Murphy v. Hunt, 455 U.S. 478, 481–82 (1982) (per curiam); accord United
States v. Manthey, 92 F. App'x 291, 297 (6th Cir. 2004).

1

A procedural default is "a critical failure to comply with state procedural law."
Trest v. Cain, 522 U.S. 87, 89 (1997). In Michigan, a state court may not grant a motion
for relief from judgment if the defendant "alleges grounds for relief, other than
jurisdictional defects, which could have been raised on appeal from the conviction and
sentence . . . unless the defendant demonstrates (a) good cause for failure to raise such
grounds on appeal . . . , and (b) actual prejudice from the alleged irregularities that
support the claim for relief." Mich. Ct. R. 6.508(D)(3). Rule 6.508(D)(3) is a state
procedural default rule. Peoples v. Lafler, 734 F.3d 503, 511 (6th Cir. 2013).
Michigan Court Rule 6.508(D)(2), on the other hand, "is a 'relitigation' rule under
which the state court will not grant relief if the petitioner alleges claims that were
decided against the petitioner on a prior appeal." Id. "When a state court declines to
review the merits of a petitioner's claim on the ground that it has done so already, it
creates no bar to federal habeas review." Cone v. Bell, 556 U.S. 449, 466 (2009).
8

B. Not Excusing Biased Jurors
Mattison alleges that the trial court allowed biased jurors to sit on his case. The
Sixth Amendment to the United States Constitution guarantees a criminal defendant's
right to an impartial jury and is applicable to the states via the Fourteenth Amendment.
Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003). This right entitles a defendant to a
fair hearing before a panel of impartial, indifferent jurors who are "capable and willing to
decide the case solely on the evidence before [them], and a trial judge ever watchful to
prevent prejudicial occurrences and to determine the effect of such occurrences when
they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982); Irvin v. Dowd, 366 U.S. 717,
722 (1961).
The jurors at Mattison's trial swore to justly decide the case and to render a
verdict only on the evidence introduced at trial. 11/12/07 Trial Tr. at 101. Mattison
nevertheless claims that juror Joseph Spence in seat number eight should have been
excused because Spence stated during voir dire that he was unsure of his ability to
remain impartial. The reason he gave for his uncertainty was that he had a close friend
who was "going through the same thing with her father." Id. at 41. Spence, however,
went on to say that he would not find someone guilty simply because he had a friend
whose experience was similar to that of the complainant, id. at 42, and he stated that he
had no problem with basing a verdict on a person's word, id. at 58–59. He agreed to use
his common sense when deliberating the case, and he was not troubled by the fact that
he would not be permitted to apply the facts of his friend's case to the complainant's
case. Id. at 67. He also indicated that he was satisfied to be on the jury. Id. at 69.

9

The Court concludes that Spence was not biased against Mattison and that the
trial court did not violate Mattison's right to an impartial jury by not sua sponte excusing
Spence for cause.
The other juror in question was Lajuana Scott, who informed the trial court on the
second day of trial that she knew a prospective witness, Roseleyn Traylor.2 When the
trial court asked Scott whether Traylor was a close friend, Scott responded, "No, we
haven't talked in about two years." Scott then assured the trial court that she could be
fair, and the trial court resumed the trial. 11/13/07 Trial Tr. at 3–4. Mattison has failed to
show that Ms. Scott was biased against him.
The record indicates that Scott was capable and willing to decide the case solely
on the evidence before her. The record likewise revealed that the trial court was mindful
of Mattison's right to a fair and impartial jury and instructed the jurors not to let sympathy
or prejudice influence their decision. Id. at 169. Accordingly, Mattison has no right to
relief on the basis of his juror-bias claim.
C. The Pre-Sentence Reports and Scoring of the Sentencing Guidelines
Mattison next alleges that the trial court refused to correct his pre-sentence
information reports and erred when scoring the state sentencing guidelines. He also
claims that the trial court relied on inaccurate information when sentencing him, in
violation of his federal constitutional rights.
"There is no federal constitutional right to a pre-sentence investigation and
report," and "[t]he mere presence of hearsay or inaccurate information in a pre-sentence
report does not constitute a denial of due process." Allen v. Stovall, 156 F. Supp. 2d
2

Traylor ultimately testified that she was a social worker at the complainant's school
and described her experiences with the complainant.
10

791, 797 (E.D. Mich. 2001). Furthermore, a state court's alleged misapplication of state
sentencing laws is "a matter of state concern only," and "federal habeas corpus does
not lie for errors of state law." Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003) (citing
Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Petitioner's sentence of eleven years, three
months, to thirty years falls within Michigan's statutory maximum of life imprisonment or
any term of years, see Mich. Comp. Laws § 750.520b(2)(a), and the severity of a
sentence that falls within the limits set by statute is not a ground for habeas corpus
relief. Townsend v. Burke, 334 U.S. 736, 741 (1948).
Nevertheless, Mattison alleges that the trial court relied on inaccurate information
at sentencing, in violation of his constitutional rights. A sentence violates the
constitutional right to due process if it is based on "misinformation of constitutional
magnitude," United States v. Tucker, 404 U.S. 443, 447 (1972), or on "extensively and
materially false" information which the defendant had no opportunity to correct through
counsel. Townsend, 334 U.S. at 741.
Mattison challenges the fifty points scored for offense variable 13, which is a
"continuing pattern of criminal behavior." Mich. Comp. Laws § 777.43(1). Fifty points is
appropriate if "[t]he offense was part of a pattern of felonious criminal activity involving 3
or more sexual penetrations against a person or persons less than 13 years of age."
Mich. Comp. Laws § 777.43(1)(a).
Mattison was convicted of two counts of sexually penetrating a person under 13
years of age. He was acquitted of a third count of sexually penetrating a person under
the age of 13, but all crimes within a five-year period—including the sentencing

11

offense—must be counted for purposes of scoring offense variable 13, "regardless of
whether the offense resulted in a conviction." Mich. Comp. Laws § 777.43(2)(a). Under
this statute, there need only be "a preponderance of the evidence supporting that the
offense took place." People v. Nix, 301 Mich. App. 195, 205 (2013).
The complainant's testimony satisfies this requirement. She testified at the
preliminary examination that, in May of 2001, Mattison put his penis in her vagina, while
at other times she opened her mouth and kissed or sucked Mattison's penis, and these
things happened more than 10 times in 2001. 3/12/07 Prelim. Examination Tr. at 10–
11, 13. On December 4, 2001, for example, Mattison put his penis in her vagina and
kissed her vagina or put his tongue on her vagina. Id. at 7–8, 12. At trial, she testified
that Mattison had sex with her at least twenty times between the ages of 10 or 11 and
17. 11/12/07 Trial Tr. at 137, 154, 159, 171–72. Her date of birth was October 6, 1989,
id. at 125, so, she would have been 11 or 12 years old in 2001.
In light of the complainant's testimony, offense variable 13 was not scored on the
basis of extensively and materially false information or on misinformation of
constitutional magnitude. Mattison has no right to relief on the basis of his sentencing
claim.
D. Bias
Mattison states that the trial court was biased against him and unfair. In support,
he points to several statements by the presiding judge at various proceedings.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution "requires a fair trial in a fair tribunal, before a judge with no actual bias

12

against the defendant or interest in the outcome of his particular case." Bracy v.
Gramley, 520 U.S. 899, 904–05 (1997) (internal quotation marks and citation omitted).
But courts ordinarily "presume that public officials have properly discharged their official
duties." Id. at 909. So to prevail on his judicial bias claim, Mattison must show "there
was bias, or such a likelihood of bias or an appearance of bias that the judge was
unable to hold the balance between vindicating the interests of the court and the
interests of the accused." Ungar v. Sarafite, 376 U.S. 575, 588 (1964). As further
explained by the Supreme Court:
[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994).
Not establishing bias or partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women . . . sometimes display. A judge's ordinary
efforts at courtroom administration—even a stern and short-tempered
judge's ordinary efforts at courtroom administration—remain immune.
Id. at 555–56.
Mattison claims that the trial court made it clear at a pretrial conference that he
was wasting the court's time by demanding a trial. Mattison points out that the trial court
was "irked" because his case had been lingering on the court's docket for eight months,
and the court asked Mattison's attorney why Mattison was reluctant to take a polygraph
13

examination. 8/29/04 Mot. Hr'g Tr. at 4. And at Mattison's sentencing, the trial judge
mentioned that it caused him some concern when Mattison declined the court's
invitation to take a polygraph examination. 12/6/07 Sentencing Tr. at 12. But none of
these examples demonstrate a deep-seated antagonism against Mattison. Rather, the
comments reflect the trial judge's ordinary concern with his docket and the truth of the
allegations against Mattison.
Mattison also claims that after his trial, the trial judge followed him into the public
hallway and used crass language when telling him to move and sit around the corner
where he could not be seen. The Court has found no evidence of this comment in the
record, nor has it found evidence that the trial court said, "I'm going to burn him, no
plea, no nothing." Pet. for Writ of Habeas Corpus 58, ECF 1. In fact, the record reveals
that Mattison rejected a favorable plea offer, which called for a sentence of ten to twenty
years in prison. 11/12/07 Trial Tr. at 3–4.
Nevertheless, Mattison maintains that the cumulative effect of the trial court's
errors was so prejudicial as to deny him a fair trial. This claim, however, is not
cognizable on habeas corpus review. See Sheppard v. Bagley, 657 F.3d 338, 348 (6th
Cir. 2011).
II.

Sufficiency of the Evidence
In his first appeal, Mattison asserted that there was insufficient evidence at trial

that he engaged in cunnilingus, fellatio, and sexual intercourse with the complainant
when she was under the age of 13 or between the ages of 13 and 15. The Michigan

14

Court of Appeals disagreed and concluded that the evidence was sufficient to sustain
Mattison's convictions. He raises the argument again here.
The Supreme Court has held "that the 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). Following Winship, the critical inquiry on review of a challenge to the
sufficiency of the evidence supporting a criminal conviction is
whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt. But this inquiry does not require a
court to "ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Instead, the relevant
question is 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. This familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (internal citations and footnote
omitted).
Mattison's sufficiency-of-the-evidence claim is a Jackson claim. Such claims
"face a high bar in federal habeas proceedings because they are subject to two layers
of judicial deference." Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam).
First is deference to the jury, for it is responsible for deciding what conclusions should
be drawn from the evidence admitted at trial. Id. Second is deference to the state court.
A federal court may not overturn a state court's rejection of a sufficiency-of-the-evidence
challenge simply because it disagrees with the state court; the state court decision must

15

have been "objectively unreasonable." Id. And the Jackson standard "must be applied
with explicit reference to the substantive elements of the criminal offense as defined by
state law." Jackson, 443 U.S. at 324 n.16.
Here, the prosecutor had to prove that Mattison sexually penetrated a person
under 13 years of age. Mich. Comp. Laws § 750.520b(1)(a). The prosecutor also had to
prove that Mattison engaged in sexual penetration with a person who was 13, 14, or 15
years old and related to him. Mich. Comp. Laws § 750.520b(1)(b)(ii). There was no
dispute that Mattison was the complainant's biological father, so the primary issue was
whether he sexually penetrated her when she was under the age of 16. He raises
several arguments concerning this issue.
A. Sexual Intercourse
First, Mattison alleges that there was insufficient evidence that he sexually
penetrated the complainant when she was under the age of 13. He maintains that the
complainant was vague as to her age when he began to engage in sexual intercourse
with her.
The complainant's date of birth was October 6, 1989, 11/12/07 Trial Tr. at 125,
and she initially testified on direct examination that she was 13 or 14 years old during
one of the first times that Mattison placed his penis in her vagina. Id. at 136. She
subsequently testified that her mother moved back into Mattison's house in April of 2001
and that Mattison first put his penis in her vagina before her parents re-married that

16

year. Id. at 137, 172.3 The complainant would have been 11 years old in April of 2001
and 12 years old on October 6, 2001.
Later, on cross-examination, the complainant testified that she had sex with her
father 20 times between the ages of 11 and 17. Id. at 154. And she clarified that "sex"
meant her father put his penis in her vagina or he had oral sex with her. Id. at 154–55.
She thought that she was 10, 11, or 12 years old the first time Mattison had sex with
her, id. at 156–59. The Court concludes that there was sufficient evidence of sexual
intercourse with the complainant when she was under the age of 13.
B. Cunnilingus and Fellatio
Mattison also alleges that there was insufficient evidence that he engaged in
cunnilingus and fellatio with the complainant when she was under 16 years of age.
Once again, the element in dispute is penetration.
Under state law, "sexual penetration" means "sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's
body or of any object into the genital or anal openings of another person's body . . . ."
Mich. Comp. Laws § 750.520a(r). "Sexual contact," in contrast, consists of "the
intentional touching of the victim's or actor's intimate parts or the intentional touching of
the clothing covering the immediate area of the victim's or actor's intimate parts, if that
intentional touching can reasonably be construed as being for the purpose of sexual
arousal or gratification, done for a sexual purpose, or in a sexual manner . . . ." Mich.
Comp. Laws § 750.520a(q).

3

Mattison himself confirmed that the complainant was 11 or 12 years old when he remarried the complainant's mother. 11/13/07 Trial Tr. at 64–65.
17

1. Cunnilingus
In challenging the sufficiency of the evidence on the count charging him with
cunnilingus, Mattison relies on the complainant's testimony that his tongue touched "the
top part of [her] vagina." 11/12/07 Trial Tr. at 143.
"[C]unnilingus requires the placing of the mouth of a person upon the external
genital organs of the female which lie between the labia, or the labia itself, or the mons
pubes." People v. Harris, 158 Mich. App. 463, 470 (1987). "[T]here is no requirement
. . . that there be something additional in the way of penetration for that sexual act to
have been performed." Id.; see also People v. Bristol, 115 Mich. App. 236, 238 (1981)
(explaining that "penetration of the labia majora is beyond the body surface," and
therefore the female genital opening includes the labia majora).
Here, the complainant testified that Mattison kissed her vagina or used his
tongue to touch the top of her vagina. 11/12/07 Trial Tr. at 142–43. The jury could have
inferred from this testimony that Mattison's mouth or tongue touched the complainant's
vaginal opening or labia. This was sufficient to establish cunnilingus. See People v.
Legg, 197 Mich. App. 131, 133 (1992).
2. Fellatio
Mattison likewise alleges that there was insufficient evidence that he engaged in
fellatio with the complainant. Fellatio is more than oral contact with the male genitals: it
"requires entry of a penis into another person's mouth." People v. Reid, 233 Mich. App.
457, 480 (1999). The complainant testified that Mattison made her suck or kiss his

18

penis. 11/12/07 Trial Tr. at 144. Mattison contends that to say kissing a penis amounts
to fellatio blurs the distinction between contact and penetration.
The complainant, however, was more specific in her subsequent testimony. In
response to a question from the prosecutor, the complainant indicated that Mattison put
his penis in her mouth more than three times, id., and on cross-examination, she stated
that there were times when Mattison placed his penis in her mouth, id. at 155. This was
sufficient evidence of fellatio.
C. Conclusion
"In criminal sexual conduct cases, a victim's testimony may be sufficient to
support a defendant's conviction and need not be corroborated." People v. Solloway,
316 Mich. App. 174, 181 (2016), appeal denied, 894 N.W.2d 604 (Mich. 2017). In this
case, a rational juror could have concluded from the complainant's testimony, taken in
the light most favorable to the prosecution, that Mattison sexually penetrated the
complainant when she was under the age of 13 and that he also engaged in cunnilingus
and fellatio with her when she was under the age of 16. The evidence was therefore
sufficient to sustain Mattison's convictions; the Michigan Court of Appeals' decision
upholding Mattison's convictions was neither contrary to, nor an unreasonable
application of, Jackson. Habeas relief is not warranted on Mattison's challenge to the
sufficiency of the evidence.
III.

Trial Counsel
Mattison next alleges that his trial and appellate attorneys were ineffective.

Specifically, he asserts that trial counsel was unprofessional and that the attorney failed

19

to do the following: (1) adequately cross-examine the witness; (2) investigate witnesses,
evidence, and medical records; (3) submit evidence and transcripts; (4) object to biased
jurors and to the prosecutor's misconduct; and (5) conduct an adequate voir dire.
Mattison further contends that appellate counsel was ineffective for failing to raise all
these claims on direct appeal. The Michigan Court of Appeals found no merit in
Mattison's claims about his trial attorney and stated that Mattison had "not affirmatively
demonstrated that his counsel's performance was objectively unreasonable and so
prejudicial as to deprive him of a fair trial." Mattison, 2009 WL 1441548, at *7.
A. The Standard
Ineffective-assistance-of-counsel claims must satisfy two prongs. The defendant
must demonstrate both that "counsel's performance was deficient" (the deficiency
prong) and that "the deficient performance prejudiced the defense" (the prejudice
prong). Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency prong
requires a showing that "counsel's representation fell below an objective standard of
reasonableness" and that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at
687–88. The prejudice prong "requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. A
defendant must therefore demonstrate "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.

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In a habeas case, review of an ineffective-assistance-of-counsel claim "is doubly
deferential because counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment." Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam) (internal
quotation marks and citations omitted). Federal courts therefore afford "both the state
court and the defense attorney the benefit of the doubt." Id.
B. The Claims
1. Failure to Investigate and Adequately Cross-Examine
the Witness
Mattison alleges that his trial attorney failed to investigate all the discovery
materials in his case, failed to present every conceivable defense, and failed to
adequately cross-examine the complainant regarding inconsistencies in her testimony.
Specifically, he contends that his attorney should have investigated and questioned the
complainant about her age at the time of the first incident, the exact date and time of the
last incident of criminal sexual conduct, and the date she disclosed the abuse to a
teacher and her mother. He also contends that counsel should have investigated the
complainant's absences from school, her prior accusation of sexual abuse, and
evidence that she mistreated her siblings. Finally, Mattison claims that trial counsel
should have investigated alibi witnesses, as well as sales receipts and his work records
to show that he was elsewhere when the sexual abuse occurred.
Attorneys have a "duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." Strickland, 466
U.S. at 691. The Court looks to an attorney's decisions "in light of all the circumstances"
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Id. at 690. And contrary to what Mattison alleges, defense counsel is not required to
investigate every conceivable defense. See Couch v. Booker, 632 F.3d 241, 246 (6th
Cir. 2011).
The record here amply supports a finding that Mattison's counsel's decisions
were within the bounds of reasonable, professional judgment. At the time of trial,
complainant was only eighteen years old. She was questioned—by the prosecutor, by
defense counsel, or both—about the first time she engaged in sexual activity with
Mattison. She was also asked about her school attendance and grades, her delayed
disclosure of the abuse to her mother and a teacher, and Mattison's threats. The crossexamination alone consists of twenty-two pages of transcript, and it covered a variety of
topics that were meant to discredit the complainant's testimony. Finally, Mattison himself
testified about the complainant's prior accusation of sexual abuse, her alleged lies, and
her relationship with her siblings.
Mattison contends that counsel could have further attempted to impeach the
complainant by cross-examining her about exact dates and times of the sexual abuse.
But counsel may have reasonably determined that such examination would be futile
given the complainant's testimony that the abuse occurred over a five-year period when
she was young and that sometimes the sexual activity lasted for only five or ten
minutes. And for the same reasons, defense counsel was not ineffective for failing to try
to establish an alibi defense.
Defense counsel's level of investigation and cross-examination did not amount to
ineffective assistance.

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2. Failure to Submit Transcripts and Other Evidence
Mattison also asserts that trial counsel should have introduced the preliminary
examination transcript and other evidence, such as the complainant's statement to the
police and medical records. Defense counsel did question the complainant about her
testimony at the preliminary examination—but the transcript itself likely would have
harmed, rather than helped, Mattison's defense.
According to Mattison, defense counsel could have done more to point out
discrepancies between the complainant's prior testimony, her statement to the police,
her medical records and her testimony at trial. But the alleged discrepancies were
minor, and additional impeachment would not have made a difference in the trial.
Defense counsel was not ineffective for failing to attempt to admit transcripts and other
documentary evidence.
3. Failure to Object to Juror Bias and to the Prosecutor's
Conduct and Failure to Adequately Conduct Voir Dire
Next, Mattison claims that trial counsel was ineffective for failing to object to the
prosecutor's conduct and the seating of biased jurors. The Court has already explained,
supra, that there is no basis for concluding that jurors Spence and Scott were biased
against Mattison. And as the Court will discuss, infra, the prosecutor's conduct did not
deprive Mattison of a fair trial or due process of law. Counsel was therefore not
ineffective for failing to make meritless arguments or meritless objections. Coley v.
Bagley, 706 F.3d 741, 752 (6th Cir. 2013); Conley v. Warden Chillicothe Corr. Inst., 505
F. App'x 501, 507–08 (6th Cir. 2012).
4. Failure to be Professional
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In his final claim about trial counsel, Mattison contends that his first attorney (not
trial counsel) made him obtain the complainant's school records, forced him to go to
counsel's home to pick up his mail, and then abandoned him before trial. Mattison
claims that his second attorney violated ethical cannons, lost his file, and eventually was
suspended from the practice of law for a few years. According to Mattison, he received
almost no assistance from his attorneys, and the outcome of his trial would have been
different were it not for counsel's errors.
The first attorney did not abandon Mattison. Rather, he asked another attorney to
substitute for him when he became involved in a trial in Mexico. 8/29/07 Mot. Hr'g at 3.
The substitute attorney then requested a one-month adjournment in the trial date to
become familiar with the case, and he was given about two and a half months to
prepare for trial. Id. at 3–6. By the final pretrial conference, trial counsel was ready
10/29/07 Pretrial Hr'g Tr. at 3-4, and he performed adequately at trial.
Mattison states that his trial attorney, who was retained, forced him to make
payments in unusual places and instead of billing him for the total attorney fee, told him
to keep paying every two weeks. Mattison also states that the attorney was suspended
from the practice of law. According to Mattison, however, the attorney was suspended
three years after Mattison's trial for a matter unrelated to his case. Mattison's own
complaint against the attorney for allegedly improper conduct was considered by the
Attorney Grievance Commission and dismissed because the evidence did not warrant
further action by the Commission. Petition, App. B56, ECF 1-4, PgID 322.

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The Court concludes that trial counsel's allegedly unprofessional conduct does
not warrant habeas relief. And because Mattison's claims lack merit, appellate counsel
was not ineffective for failing to raise the claims on appeal. The state appellate court's
rejection of Mattison's claims about counsel was neither contrary to, nor an
unreasonable application of, Strickland.
IV.

The Prosecutor
Mattison contends that the prosecutor committed misconduct and thereby

deprived him of a fair trial and due process of law. The Michigan Court of Appeals
adjudicated this claim on direct appeal and concluded that "none of the instances cited
by defendant amounted to prosecutorial misconduct and therefore defendant was not
denied a fair and impartial trial." Mattison, 2009 WL 1441548, at *7.
A. The Standard
Constitutional line drawing in prosecutorial-misconduct cases is "necessarily
imprecise." Trimble v. Bobby, 804 F.3d 767, 783 (6th Cir. 2015), cert. denied sub nom.
Trimble v. Jenkins, 137 S. Ct. 41 (2016). Consequently, prosecutorial-misconduct
claims are reviewed deferentially in a habeas case, Millender v. Adams, 376 F.3d 520,
528 (6th Cir. 2004).
"Prosecutorial misconduct not invoking a specific provision of the Bill of Rights is
reviewed under the general standard for due-process violations: whether the
misconduct was so egregious as to deny the defendant a fundamentally fair trial."
LaMar v. Houk, 798 F.3d 405, 430 (6th Cir. 2015) (citing Donnelly v. DeChristoforo, 416
U.S. 637, 643–45 (1974)), cert. denied, 136 S. Ct. 1715 (2016). "[T]he touchstone of

25

due process analysis in cases of alleged prosecutorial misconduct is the fairness of the
trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
"In deciding prosecutorial misconduct claims, the court considers the effect of any
misconduct on the trial as a whole." LaMar, 798 F.3d at 431 (citing Darden v.
Wainwright, 477 U.S. 168, 182 (1986)). "If the misconduct was harmless, then as a
matter of law, there was no due-process violation." Bryan v. Bobby, 843 F.3d 1099,
1113 (6th Cir. 2016) (citing Greer v. Miller, 483 U.S. 756, 765 & n.7 (1987)), petition for
writ of certiorari filed, No. 16-9680 (U.S. June 23, 2017).
B. The Arguments
Mattison raises a litany of prosecutorial-misconduct claims. According to
Mattison, the prosecutor (1) was vague about times and locations for the sexual abuse,
(2) misled the jury into thinking the complainant was under the age of 16 when sexual
activity occurred in his van, (3) erroneously admitted evidence, (4) relied on false
testimony, (5) withheld exculpatory evidence, (6) improperly attacked his character, and
(7) acted improperly in his closing arguments.
As to vagueness: it is true that the complainant did not provide specific dates,
times, and locations for all the events in question. But in a criminal sexual conduct case
where the victim is a child, "time is not of the essence, nor is it a material element[.]"
People v. Waclawski, 286 Mich. App. 634, 707–08 (2009) (citing People v. Stricklin, 162
Mich. App. 623, 634 (1987)). Thus, the prosecutor was not required to elicit testimony
regarding precise dates, times, and locations for the crimes.

26

Nor did the prosecutor mislead the jury into thinking that the complainant was
under the age of 16 when the events in question occurred. The complainant testified
that the sexual abuse began when she was 11 or 12 years old, that it continued for
about five years, and that as she matured, sexual activity with Mattison occurred two or
three times a week. 11/12/07 Trial Tr. at 126–30, 141, 169, 171–72, 173–74. Although
the sexual activity that led to the discovery of Mattison's DNA and the complainant's
skin cells in Mattison's van occurred when the complainant was older than 15, the
prosecutor did not charge Mattison with that particular incident. Nevertheless, the
evidence from that activity was relevant and admissible because it tended to
corroborate the complainant's testimony that Mattison had engaged in sex with her
when she was younger.
As for mere inconsistencies in the complainant's testimony: they did not establish
the knowing use of false testimony. See United States v. Lochmondy, 890 F.2d 817,
822 (6th Cir. 1989). And inconsistencies in testimony go to the weight of the evidence,
not to its admissibility. People v. Barrera, 451 Mich. 261, 289 (1996).
Mattison claims that the prosecutor withheld exculpatory evidence that he was
working or traveling outside Michigan when the crimes occurred. Prosecutors may not
suppress material evidence favorable to an accused. Brady v. Maryland, 373 U.S. 83,
87 (1963). But "[t]here is no Brady violation where a defendant knew or should have
known the essential facts permitting him to take advantage of any exculpatory
information, or where the evidence is available . . . from another source, because in
such cases there is really nothing for the government to disclose." Coe v. Bell, 161 F.3d

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320, 344 (6th Cir. 1998) (internal quotation marks and end citations omitted). Here, the
allegedly exculpatory evidence pertained to Mattison's own activities. Because he knew
the essential facts needed to take advantage of any exculpatory information, the
prosecutor did not violate the holding in Brady.
Mattison also faults the prosecutor for attacking his character by eliciting
testimony on the following topics: (1) he arranged to cut off gas service to the
complainant's home after he moved out of the home, (11/13/07 Trial Tr. at 115-17); (2)
he shut off the complainant's cell phone service (id. at 103); (3) he prevented the
complainant from attending an awards ceremony during her class trip to California, (id.
at 95–97); (4) he divorced his wife one week after the complainant disclosed the abuse
(id. at 113–14); and (5) he changed his hotel room when he accompanied the
complainant on the class trip to California (11/12/07 Trial Tr. at 177–79). Mattison's
character, however, was at issue, and he was given ample opportunity to explain his
conduct when he testified. The prosecutor's conduct did not deprive Mattison of a fair
trial.
Several of Mattison's allegations concern the prosecutor's closing arguments.
Mattison points out that the prosecutor said he lied (11/13/12 Trial Tr. at 144, 146, 149,
165), that his testimony was ridiculous and a "smoke screen" (id. at 137-38, 152–53,
165–68), that getting an answer to questions was like pulling teeth (id. at 166), that he
did not ejaculate in the complainant because he did not want to leave his calling card in
her (id. at 144), that he could not get around the DNA evidence (id. at 144,151–53), that

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the complainant's story never changed (id. at 135–37, 149), and that his divorce was a
preemptive strike (id. at 165).
When a habeas petitioner challenges the prosecutor's remarks during closing
arguments, the appropriate standard is "the narrow one of due process, and not the
broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986).
It is therefore not enough to show "that the prosecutors' remarks were undesirable or
even universally condemned," but rather, "whether the prosecutors' comments so
infected the trial with unfairness as to make the resulting conviction a denial of due
process." Id. (quotation marks omitted). This means "analyzing disputed comments in
the context of the trial as a whole and recognizing that inappropriate comments alone
do not justify reversal where the proceedings were otherwise fair.'" United States v.
Henry, 545 F.3d 367, 377 (6th Cir. 2008) (quotation marks and end citation omitted).
And though prosecutors should refrain from interjecting their personal beliefs into the
presentation of their cases, United States v. Young, 470 U.S. 1, 8–9 (1985), and from
stating personal opinions concerning defendants' guilt, United States v. Daniels, 528
F.2d 705, 709 (6th Cir. 1976), they may "argue the record, highlight any inconsistencies
or inadequacies of the defense, and forcefully assert reasonable inferences from the
evidence." Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008).
None of the complained-of remarks deprived Mattison of his due-process rights.
The prosecutor's closing arguments were based on the evidence and reasonable
inferences from the evidence. As such, the remarks were proper. Although the
prosecutor did suggest that Mattison's testimony and theories were a lie, a prosecutor

29

may attack a defendant's credibility to the same extent as any other witness if the
defendant testifies. United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999). And
when emphasizing discrepancies between the evidence and the defendant's testimony,
a prosecutor may even assert that a defendant is lying. Id. The prosecutor's reference to
the defense as a smoke screen was likewise acceptable, because the remarks were not
overly excessive and they did not impair the search for the truth. See Key v. Rapelje,
634 F. App'x 141, 149 (6th Cir. 2015). And finally, comments that the complainant never
changed her story were proper, because the prosecutor did not imply that she
personally believed the complainant or that she knew of evidence which demonstrated
the witness's truthfulness, but was not before the jury. See United States v. Jackson,
473 F.3d 660, 672 (6th Cir. 2007). The prosecutor attempted to restore the credibility of
her main witness through argument rather than through her own personal opinion of the
complainant, and she did not imply that she had corroborative evidence, which had
been withheld from the jury. This was acceptable conduct. See United States v. Garcia,
758 F.3d 714, 723 (6th Cir. 2014).
Still, Mattison maintains that the cumulative effect of the prosecutor's conduct
deprived him of due process and a fair trial. As noted supra, this claim is not cognizable
on habeas corpus review. Sheppard v. Bagley, 657 F.3d 338, 348 (2011).
Even if there were instances of impropriety, the state trial court properly
instructed the jurors that they should decide the case solely on the evidence, that the
lawyers' comments and arguments were not evidence, and that it was their job to
assess the credibility of witnesses and to resolve conflicts in testimony. 11/12/07 Trial

30

Tr. at 103–04, 106; 11/13/07 Trial Tr. at 131, 169, 171–76. And the Court may "presume
that jurors, conscious of the gravity of their task, attend closely the particular language
of the trial court's instructions in a criminal case and strive to understand, make sense
of, and follow the instructions given them." Key, 634 F. App'x at 150 (quoting United
States v. Olano, 507 U.S. 725, 740 (1993) (internal quotation marks and alterations
omitted)).
In sum: the state appellate court's decision that none of the instances cited by
Mattison amounted to prosecutorial misconduct was objectively reasonable. The Court
therefore declines to grant relief on Mattison's prosecutorial-misconduct claim.
V.

Actual Innocence
In his supplemental petition, Mattison claims to be actually innocent of first-

degree criminal sexual conduct. Claims of actual innocence generally do not "state a
ground for federal habeas relief absent an independent constitutional violation occurring
in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400
(1993). "This rule is grounded in the principle that federal habeas courts sit to ensure
that individuals are not imprisoned in violation of the Constitution—not to correct errors
of fact." Id.
The complainant's testimony supported the jury's verdict, and Mattison stated at
his sentencing that he accepted responsibility for his conduct. He apologized to his
daughter and family for what he had done to them, and he admitted that he did
something wrong and may have a problem. 12/6/07 Sentence Tr. at 7-10. "[W]hatever

31

burden a hypothetical freestanding innocence claim would require, this petitioner has
not satisfied it." House v. Bell, 547 U.S. 518, 555 (2006).
ORDER
WHEREFORE, it is hereby ORDERED that the habeas petition [1] and
supplemental petition [15] are DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because
reasonable jurists would not disagree with the Court's assessment of Mattison's claims,
nor conclude that the issues deserve encouragement to proceed further.
IT IS FURTHER ORDERED that if Mattison appeals the Court's decision, he may
proceed in forma pauperis on appeal.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: July 31, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 31, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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