Mann v. Rivard
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, 15 Amended Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal in Forma Pauperis. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:14-cv-12828
HONORABLE STEPHEN J. MURPHY, III
OPINION AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS [1, 15] AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is Petitioner Darrell Mann's pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his convictions for three counts of third-degree
criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(b), and one count of
fourth-degree criminal sexual conduct, Mich. Comp. Laws § 750.520e(1)(b). For the
reasons set forth below, the Court will deny the petition.
Petitioner was convicted following a jury trial in the Wayne County Circuit Court, and
the conviction was affirmed on appeal. People v. Mann, Case No. 308706, 2013 WL
2278136 (Mich. Ct. App. May 23, 2013). The Michigan Court of Appeals relied on the
following facts that the Court presumes are accurate:1
On July 19, 2011, the victim was walking toward a bus stop when defendant offered
to give her a ride. The victim got in defendant's truck and, after they negotiated a
price for oral sex, defendant drove to a parking lot. After defendant stopped the
vehicle, he grabbed the victim's neck with both hands and told her he did not have
any money, but to do what he said and he would not hurt her. After defendant forced
the victim to perform oral sex, he penetrated her with his fingers and then his penis
while she cried and asked him to stop. Eventually, defendant let the victim out of his
The Court is permitted to make the presumption under 28 U.S.C. § 2254(e)(1).
truck and, after securing defendant's license plate number, she sought medical
treatment. Prior to defendant's trial and pursuant to MRE 404(b), the prosecutor
moved for the admission of evidence related to defendant's 1989 first-degree CSC
conviction and the motion was granted.
Id. at *1.
Petitioner then filed his petition, which the Court held in abeyance to permit Petitioner
to return to the state courts to present additional claims. ECF 12. Petitioner's state court
actions failed, so the Court reopened the case and allowed Petitioner to file an amended
habeas petition. ECF 16. In his original and amended petitions, Petitioner seeks habeas
relief on the following grounds: (1) Petitioner was denied a fair trial by the introduction of
prejudicial bad acts evidence, (2) Petitioner was denied the effective assistance of trial
counsel, and (3) Petitioner was denied the effective assistance of appellate counsel.
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 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 411. "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)). To obtain habeas relief in
federal court, a state prisoner must therefore 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." Id. at
Other Acts Evidence
Petitioner first claims that the trial court violated his right to due process and a fair trial
by admitting "other acts" evidence involving Petitioner's 1989 sexual assault conviction
because the evidence was irrelevant, more prejudicial than probative, and violated
Michigan's Rule of Evidence 404(b). Violations of state law and procedures that do not
infringe specific federal constitutional protections are not cognizable claims under § 2254.
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Moreover, the Sixth Circuit has observed
that "the Supreme Court has never held (except perhaps within the capital sentencing
context) that a state trial court's admissions of relevant evidence, no matter how
prejudicial, amounted to a violation of due process." Blackmon v. Booker, 696 F.3d 536,
551 (6th Cir. 2012) (emphasis omitted). Evidence of Petitioner's 1989 sexual assault
tended to show his intent to sexually assault the victim in this case, so it was relevant.
Petitioner's argument therefore fails to raise a claim on which relief can be granted.
Ineffective Assistance of Counsel
Petitioner next argues that he was denied the effective assistance of trial and
appellate counsel. To succeed on these claims, Petitioner must show that his counsel was
deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Whiting v. Burt, 395 F.3d 602, 617 (6th Cir.) (applying
Strickland standard to appellate counsel). To do so, Petitioner must overcome the strong
presumption that counsel's behavior lies within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. And Petitioner must show that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. Because the Court reviews the question
on habeas, "the pivotal question is whether the state court's application of the Strickland
standard was unreasonable." Harrington, 562 U.S. at 101. Petitioner did not discharge his
burden, so the Court will not grant relief.
A. Trial Counsel
Petitioner argues that trial counsel was ineffective because she failed to object to the
state court's erroneous instruction on the elements for fourth-degree criminal sexual
conduct. The Court finds that the jury instructions adequately advised the jurors that they
had to find that Defendant intentionally touched the victim's breasts and that the touching
had been done for a sexual purpose. Counsel therefore was not ineffective for failing to
object to the instructions. See Campbell v. Coyle, 260 F.3d 531, 558 (6th Cir. 2001).
Petitioner also argues that trial counsel was ineffective for failing to impeach the victim
for her prior inconsistent statements.2 The Michigan Court of Appeals rejected the claim
because it found that counsel adequately questioned the victim. The Court has
independently reviewed the record and finds that counsel extensively impeached the
victim. See, e.g., ECF 10-7, PgID 410–23. Counsel then highlighted this impeachment
during closing argument. ECF 10-8, PgID 589–603. Accordingly, the Court finds that
counsel's performance was adequate and that Petitioner is not entitled to relief. See
Jackson v. Bradshaw, 681 F.3d 753, 764–65 (6th Cir. 2012); Krist v. Foltz, 804 F.2d 944,
948–49 (6th Cir. 1986).
Petitioner next argues he was denied the assistance of counsel during a critical stage
in the proceeding when the judge answered a note asking for a copy of the jury
instructions to be sent to the jury room. The complete denial of counsel during a critical
stage of a judicial proceeding—including the giving of a supplemental jury
instruction—mandates a presumption of prejudice. United States v. Cronic, 466 U.S. 648,
659 (1984); Rushen v. Spain, 464 U.S. 114, 119 n.4 (1983). But re-reading or giving
written instructions that have previously been given to the jury are not critical stages for
Sixth Amendment purposes. Philips v. Bradshaw, 607 F.3d 199, 223–24 (6th Cir. 2010);
Hudson v. Jones, 351 F.3d 212, 216–18 (6th Cir. 2003). Consequently, the Court does not
presume prejudice. Petitioner does not allege or show any prejudice from his counsel's
absence, so he is not entitled to relief.
Petitioner did not include this claim in his amended habeas petition. Although a
habeas petitioner can withdraw a claim from a habeas petition, it is not clear that Petitioner
sought to withdraw this claim from consideration when he filed his amended petition.
Because Petitioner is proceeding pro se, the Court assumes that he still seeks to pursue
habeas relief on this claim.
Petitioner finally contends that trial counsel was ineffective for failing to object when
the judge gave the jurors a copy of a medical report that had not been admitted into
evidence. Petitioner made the same claim in a post-conviction motion that was denied by
a state court, which found that the jury had not been given the medical records. ECF 18-3.
Although the issue of ineffective assistance of counsel presents a mixed question of law
and fact, any underlying facts found by the state courts are presumed correct until they are
rebutted by clear and convincing evidence. Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir.
2001); West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). Petitioner has failed to rebut the
factual finding that the contested evidence was not given to the jury, so there was no
reason for trial counsel to object. See U.S. v. Johnson, 9 F. App'x. 373, 374 (6th Cir. 2001)
(no error when counsel fails to raise a meritless issue). Thus, there is no ground for relief.
B. Appellate Counsel
Petitioner argues that appellate counsel was ineffective for failing to raise the third
and fourth ineffective assistance of trial counsel claims on Petitioner's appeal of right.
"[A]ppellate counsel cannot be found to be ineffective for 'failure to raise an issue that
lacks merit.'" Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). The Court has already determined that
Petitioner's ineffective assistance of trial counsel claims are without merit, so appellate
counsel was not ineffective in handling the direct appeal. Petitioner is not entitled to relief.
III. Certificate of Appealability
Petitioner cannot appeal the Court's decision unless he is issued a Certificate of
Appealability (a "COA"). Fed. R. App. P. 22(b). A COA may be issued "only if the applicant
has made a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). The substantial showing threshold is satisfied when a petitioner
demonstrates "that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quotation marks omitted). "[W]hen a habeas applicant seeks
permission to initiate appellate review of the dismissal of his petition," a federal court
should "limit its examination to a threshold inquiry into the underlying merit of his claims."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). After conducting the required inquiry, the
Court finds that Petitioner has not made a substantial showing of the denial of a
constitutional right. The Court will therefore deny Petitioner a COA. The Court also will
deny Petitioner leave to appeal in forma pauperis because an appeal would be frivolous.
See Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich 1999).
WHEREFORE, it is hereby ORDERED that the petition for writ of habeas corpus [1,
15] is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner is denied leave to appeal in forma
The order is final and closes the case.
Dated: October 10, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 10, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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