Hardges v. Barrett

Filing 7

OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN HARDGES,
Petitioner,
CASE NO. 2:13-CV-14805
HONORABLE GERALD E. ROSEN
UNITED STATES DISTRICT JUDGE

v.
JOE BARRETT,
Respondent.
___________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY
Kevin Hardges, (“petitioner”), currently on parole with the Wayne County
probation department, seeks the issuance of a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In his application, filed by his attorney, Peter Van Hoek
of the State Appellate Defender Office, petitioner challenges his conviction for
using a computer for the purpose of committing third-degree criminal sexual
conduct or child sexually abusive activity, M.C.L. § 750.145d(2)(f), child
sexually abusive activity, M.C.L. § 750.145c(2), and using a computer for the
purpose of accosting or soliciting a minor for immoral purposes, M.C.L. §
750.145d(2)(d). For the reasons stated below, the petition for writ of habeas
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corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009):
In his original brief on appeal, defendant raised claims of
instructional error wherein he argued that the trial court failed to
instruct the jury on essential elements of the charged offenses.
After defendant filed his brief, this Court granted the prosecutor’s
motion to remand to correct the record. People v. Hardges,
unpublished order of the Court of Appeals, entered November 19,
2010 (Docket No. 293334). Following several hearings on
remand, the trial court adopted an amended transcript of the jury
instructions, which included instructions on the elements of the
charged offenses. The parties also agreed that in light of the
errors and omissions in the jury instruction portion of the original
transcript, the entire trial transcript should be re-transcribed by a
different court reporter. However, other court reporters were
unable to complete an official record from the original reporter’s
steno notes.
In a reply brief filed after the remand proceedings, defendant now
agrees that the jury instructions as shown in the amended
transcript confirms that the trial court correctly instructed the jury
on the elements of the charged offenses, and “thus effectively
eliminates the factual basis for the two issues raised in his initial
Brief on Appeal.” However, defendant also argues that in light of
the manifest errors in the original transcript of the jury instructions,
the transcript of the remainder of the trial is likely to be similarly
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flawed. He asserts that a complete transcript is essential to his
constitutional right to appeal and his right to the assistance of
counsel in that appeal.
Initially, as a procedural matter, defendant’s attempt to raise this
new argument in a reply brief is contrary to MCR 7.212(G), which
states that “[r]eply briefs must be confined to rebuttal of the
arguments in the appellee’s or cross-appellee’s brief[.]”
Furthermore, even if defendant’s argument is considered,
defendant has not established entitlement to relief.
People v. Hardges, No. 293334, 2012 WL 556181, * 1 (Mich.Ct.App. Feb. 21,
2012).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 493 Mich.
866, 820 N.W.2d 920 (2012).
Petitioner seeks a writ of habeas corpus on the following ground:
Petitioner was denied his constitutional right to procedural due
process where the state courts refused to grant him a new trial, or
a remand to the state trial court for a proceeding to settle the
entire record, where the full trial and sentencing transcripts
provided to petitioner for his state appeal of right were shown to
be unreliable and incomplete, thus precluding him from a fair and
reasonable review of his convictions and sentences in the state
courts.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review
for habeas cases:
An application for a writ of habeas corpus on behalf of a person
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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.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id.
at 409. A federal habeas court may not “issue the writ simply because that
court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.”
Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral

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review of a state-court decision must be consistent with the respect due state
courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The “AEDPA thus imposes a ‘highly deferential standard for evaluating
state-court rulings,’and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)((quoting Lindh
v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19,
24 (2002)(per curiam)). “[A] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). In order to obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his claim “was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.
III. Discussion
A. Due Process Violation due to Inaccurate Transcripts.
Petitioner contends that he was denied his due process rights when the
state court refused to grant him a new trial or to remand the case for a

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proceeding to settle the record, when a previous transcript was shown to be
unreliable and incomplete, claiming that possible errors in other transcripts
would prevent him from a fair and reasonable review of his convictions and
sentences.
Petitioner has presented no evidence to support his claim that the
additional trial transcripts were incomplete or inaccurate.

Conclusory

allegations by a habeas petitioner, without any evidentiary support, do not
provide a basis for habeas relief. See, e.g., Washington v. Renico, 455 F. 3d
722, 733 (6th Cir. 2006)(bald assertions and conclusory allegations do not
provide sufficient ground to warrant requiring an evidentiary hearing in a
habeas proceeding); Workman v. Bell, 160 F.3d 276, 287 (6th Cir.
1998)(conclusory allegations of ineffective assistance of appellate counsel
do not warrant habeas relief). A court reporter’s transcript is presumed to be
accurate or correct. See Abatino v. United States, 750 F.2d 1442, 1445 (9th
Cir.1985); United States v. Hoffman, 607 F. 2d 280, 286 (9th Cir. 1979).
Petitioner has not offered any proof to rebut this presumption, either in the
state courts or with this Court. Besides his own speculations, petitioner does
not present any reason why this Court should suspect the transcripts to be
inaccurate and is thus not entitled to habeas relief. See Norris v. Schotten,

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146 F. 3d 314, 333 (6th Cir. 1998); See also Bransford v. Brown, 806 F. 2d
83, 86 (6th Cir. 1986)(to obtain relief based on a claim of missing transcripts,
habeas petitioner must “present something more than gross speculation that
the transcripts were requisite to a fair appeal.”). “There is no principle of law
better settled, than that every act of a court of competent jurisdiction shall be
presumed to have been rightly done, till the contrary appears.” Parke v.
Raley, 506 U.S. 20, 30 (1992). There is no support to find that alleged
inaccuracies in a transcript without more, would entitle a petitioner to habeas
relief without some asserted specificity of an alleged inaccuracy and how that
alleged inaccuracy in the transcript adversely affected petitioner’s ability to
obtain postconviction relief. Petitioner’s claim is meritless.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court
will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve

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encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims to be
debatable or wrong. Id. at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254.

For the reasons stated in this opinion, the Court will deny

petitioner a certificate of appealability because he has failed to make a
substantial showing of the denial of a federal constitutional right. See also
Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich. 2002).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: June 30, 2015
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon
the parties and/or counsel of record on June 30, 2015, by electronic and/or
ordinary mail.
s/Julie Owens
Case Manager, [phone]

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