Comtois v. McKee

Filing 12

OPINION AND ORDER Denying 1 Habeas Corpus Petition, Denying a Certificate of Appealability, Granting Leave to Proceed in forma pauperis on Appeal - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL CHARLES COMTOIS,
Petitioner,
CASE NO. 14-13286
v.
KENNETH MCKEE,

PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

Respondent.
_________________________________/
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION
AND DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on petitioner Michael Charles Comtois’ pro
se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges
Petitioner’s convictions for first and second-degree criminal sexual conduct. Petitioner
contends that the evidence at trial was insufficient, the complainant perjured herself, the
prosecutor failed to try him in a timely manner and also engaged in misconduct during
closing arguments, and his trial and appellate attorneys were ineffective. The State
argues in an answer to the petition that five of Petitioner’s claims are procedurally
defaulted and that the state courts’ adjudications of Petitioner’s other claims were not
contrary to, or unreasonable applications of, Supreme Court precedent. The Court agrees
with the State’s assessment of Petitioner’s claims. Accordingly, the petition will be
denied.

I. Background
Petitioner was charged in Bay County, Michigan with one count of first-degree
criminal sexual conduct and two counts of second-degree criminal conduct. The charges
arose from an incident involving a seventeen-year-old girl who had a learning disability.
The prosecutor’s theory on count one was that Petitioner penetrated the
complainant’s labia majora, using force or coercion and causing injury. The prosecutor
argued in the alternative that Petitioner was guilty of third-degree criminal sexual conduct
because the complainant was mentally incapable of giving consent or of appraising the
nature of her conduct.
Counts two and three charged Petitioner with second-degree criminal sexual
conduct for touching the complainant’s breast, using force or coercion and causing injury.
The prosecutor argued in the alternative that Petitioner was guilty of fourth-degree
criminal sexual conduct because the complainant was mentally incapable at the time of
the sexual contact.
Petitioner was tried before a jury in Bay County Circuit Court. The Michigan
Court of Appeals summarized the facts as follows:
On the day of the assault, the victim met defendant at a park and he asked
her to walk with him. The victim testified that she and defendant walked
through some woods and that at some point he picked flowers for her. The
victim recalled that defendant later touched her buttocks and that she
objected, that he pushed her to the ground and got on top of her, and that he
lifted up her shirt and bra and repeatedly touched her breasts.1 The victim
also described that defendant took her overalls and underwear off as she
1

A nurse practitioner who examined the victim testified that the victim told her that
defendant had also licked and sucked her breasts.
2

tried to resist, that he managed to push his pants partially down and move
her legs apart, that he put his penis partly inside her, and that he placed
handfuls of dirt in her mouth to prevent her from yelling for help and
threatened to kill her if she screamed. After the assault, defendant told the
victim not to tell anyone what had occurred, but the next day she told
friends about the attack.
People v. Comtois, No. 286965, 2009 WL 5150061, at *1 (Mich. Ct. App. Dec. 29, 2009)
(unpublished)(footnote in original).
Petitioner did not testify, and his only witness was David Biscigo, an employee of
the Michigan State Police Crime Lab. Biscigo testified that a man can ejaculate seminal
fluid even if he does not have a full erection and that seminal fluid on the complainant’s
underwear could have drained from the complainant’s vagina or come from pre-ejaculate
or ejaculate. Biscigo also testified that bodily fluid could have been deposited on the
complainant regardless of whether penetration occurred and that, if fluid was deposited
near her genital area, the fluid could have transferred from the genital area to her
underpants. Defense counsel argued to the jury that the complainant was not credible,
that there was no force or coercion, that the complainant consented to the sexual activity
and was mentally capable of consenting, and that there was no sexual penetration.
On May 20, 2008, the jury found Petitioner guilty, as charged, of one count of
first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1), and two counts
of second degree criminal sexual conduct, Mich. Comp. Laws § 750.520(c)(1). The trial
court sentenced Petitioner as a habitual offender to imprisonment for fifteen to twentythree years for the first-degree conviction and to a concurrent term of five to fifteen years
in prison for the second-degree convictions.

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In an appeal of right, Petitioner argued that (1) the evidence at trial was
insufficient to prove penetration of the complainant’s genital opening and (2) the trial
court erred by denying his motion to correct the sentence for errors in the scoring of the
sentencing guidelines. The Michigan Court of Appeals found no merit in Petitioner’s
claims and affirmed his convictions and sentence in an unpublished, per curiam opinion.
See Comtois, 2009 WL 5150061. Petitioner raised the same two issues and one new
issue about appellate counsel in an application for leave to appeal in the Michigan
Supreme Court. On May 25, 2010, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the issues. See People v. Comtois, 486 Mich. 930
(2010).
Petitioner subsequently filed a motion for relief from judgment in which he raised
issues about the sufficiency of the evidence, the alleged use of perjury, the delay in trying
him, the prosecutor’s conduct, the scoring of the sentencing guidelines, and his trial and
appellate attorneys’ assistance. The trial court found it unnecessary to decide Petitioner’s
claim about the sentencing guidelines because the Michigan Court of Appeals rejected
that issue on direct appeal. As for the remaining issues, the trial court stated that
Petitioner had not shown “good cause” for failing to raise the issues on appeal and
“actual prejudice” from the alleged irregularities. The court denied Petitioner’s motion
pursuant to Michigan Court Rule 6.508(D). See People v. Comtois, No. 05-10619-FC
(Bay Cty. Cir. Ct. Mar. 15, 2013). Petitioner appealed the trial court’s decision, but both
the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal
for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See
4

People v. Comtois, No. 317621 (Mich. Ct. App. Dec. 27, 2013) (unpublished); People v.
Comtois, 496 Mich. 859 (2014) (table).
On August 22, 2014, Petitioner filed his habeas petition. He asserts as grounds for
relief that: (1) there was insufficient evidence that he penetrated the complainant’s
genital opening; (2) the prosecution failed to present any factual evidence to support the
complainant’s claim that he placed dirt in her mouth and threatened to kill or harm her;
(3) the prosecution introduced and allowed perjured testimony; (4) the prosecution failed
to prosecute him in a timely manner; (5) the prosecutor vouched for the complainant and
portrayed Petitioner as a liar; (6) trial counsel provided ineffective assistance; and (7)
appellate counsel provided ineffective assistance.
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons
in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97
(2011). Pursuant to § 2254, the Court may not grant a state prisoner’s application for the
writ of habeas corpus unless the state court’s adjudication of the prisoner’s claims on the
merits
(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).
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“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). “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.”
Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on his or her 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 103.
III. Analysis
A. Claim One: Insufficient Evidence
Petitioner alleges that he was deprived of due process of law because there was
insufficient evidence to convict him of penetrating the victim’s genital opening.
Petitioner contends that the complainant’s testimony was vague as to where he touched
her and whether he actually penetrated her. The Michigan Court of Appeals adjudicated
this issue on the merits and concluded on direct review that the evidence sufficiently
supported Petitioner’s conviction for first-degree criminal sexual conduct.

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1. Clearly Established Federal Law
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)
(emphases in original).
The Supreme Court has “made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial deference.”
Coleman v. Johnson, 566 U.S. 650, __, 132 S. Ct. 2060, 2062 (2012) (per curiam). First,
it is the responsibility of the trier of fact to decide what conclusions should be drawn
from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)
(per curiam)).
And second, on habeas review, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply
because the federal court disagrees with the state court. The federal court
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instead may do so only if the state court decision was ‘objectively
unreasonable.’ ”
Id. (quoting Smith, 565 U.S. at 2) (quoting Lett, 559 U.S. at 773).
2. Application
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.
Petitioner challenges his conviction for first-degree criminal sexual conduct, which
involves “sexual penetration with another person” and some other aggravating
circumstance. Mich. Comp. Laws § 750.520b(1). The only issue in dispute here is
whether Petitioner sexually penetrated the complainant.
Under state law, “sexual penetration” is “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) (emphasis added). “One object of the [Michigan] Legislature in
providing for degrees of criminal sexual conduct was to differentiate between sexual acts
which affected only the body surfaces of the victim and those which involved intrusion
into the body cavities.” People v. Bristol, 115 Mich. App. 236, 238 (1981).
“[P]enetration of the labia majora is beyond the body surface.” Id. Therefore, the female
genital opening includes the labia majora. Id.
The registered nurse who examined the complainant after the alleged assault
testified that “[t]he labia majora are the fat, outer lips of a female’s genitalia,” which
“kinda cover everything else that’s on the inside.” (Trial Tr. Vol. II, at 229, May 14,

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2008.) The complainant testified that Petitioner “stuffed” his penis inside her private
area, but that it did not go all the way in because it was too little. (Trial Tr. Vol. III, at
112, May 15, 2008.) When the prosecutor asked the complainant what she used her
“private area” for, she stated “to pee out of.” (Id. at 113.) Later, on cross-examination,
defense counsel asked the complainant whether she had said Petitioner was not able to
put his penis in her. She responded, “Not all the way, it was too short.” (Id. at 146.)
A rational juror could have inferred from the testimony that Petitioner penetrated
the complainant’s labia majora. Therefore, the state appellate court’s conclusion – that
the evidence supported Petitioner’s conviction for first-degree criminal sexual conduct –
was not contrary to, or an unreasonable application of, Jackson, and Petitioner is not
entitled to relief on the basis of his challenge to the sufficiency of the evidence.
B.

Claims Two through Six: Insufficient Evidence of Death Threats and Dirt in
the Complainant’s Mouth, Perjury, Denial of a Speedy Trial, Prosecutorial
Misconduct, and Ineffective Assistance of Trial Counsel
Petitioner raised habeas claims two through six for the first time in his motion for

relief from judgment. The trial court rejected the claims because Petitioner could have
raised the claims on direct review. The State therefore argues in its answer to the habeas
petition that claims two through six are procedurally defaulted.
1. Procedural Default
In the habeas context, a procedural default is “a critical failure to comply with
state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997 ). Under the doctrine of
procedural default, “a federal court will not review the merits of [a state prisoner’s]
claims, including constitutional claims, that a state court declined to hear because the
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prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9
(2012).
Determining whether a habeas petitioner’s claim has been procedurally
defaulted is a four-step inquiry:
First, the court must determine that there is a state procedural
rule that is applicable to the petitioner’s claim and that
petitioner failed to comply with the rule. . . . Second, the
court must decide whether the state courts actually enforced
the state procedural sanction. . . . Third, the court must
decide whether the state procedural ground is an adequate and
independent state ground on which the state can rely to
foreclose review of a federal constitutional claim. . . . Once
the court determines that a state procedural rule was not
complied with and that the rule was an adequate and
independent state ground, then the petitioner must
demonstrate . . . that there was cause for him not to follow the
procedural rule and that he was actually prejudiced by the
alleged constitutional error.
Kelly v. Lazaroff, 846 F.3d 819, 828 (6th Cir. 2017) (quoting Stone v. Moore, 644 F.3d
342, 346 (6th Cir. 2011) (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
The state procedural rule in question here is Michigan Court Rule 6.508(D)(3),
which prohibits state courts from granting relief from judgment if the defendant’s claims
could have been raised on appeal from the conviction and sentence or in a prior motion.
An exception to this rule exists when the defendant demonstrates “good cause” for the
failure to raise the claim on appeal or in a prior post-conviction motion and “actual
prejudice from the alleged irregularities that support the claim for relief.” Mich. Ct. R.
6.508(D)(3)(a) - (b).

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Petitioner violated Rule 6.508(D)(3) by not raising claims two through six on
direct appeal from his convictions. The first step of the procedural-default inquiry is
satisfied.
When determining whether a state court enforced a state procedural rule, the Court
“look[s] to the last reasoned state court decision” rejecting the petitioner’s claim.
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). The last state court to
issue a reasoned decision on habeas claims two through six was the trial court, and it
clearly and expressly relied on Rule 6.508(D)(3) to deny relief. The trial court quoted the
rule and stated that, with the exception of Petitioner’s claim about the sentencing
guidelines, Petitioner could have raised his claims on direct review. The trial court went
on to conclude that Petitioner had failed to establish “good cause” for not raising the
issues on direct appeal and “actual prejudice” from the alleged irregularities. Because the
trial court clearly enforced Rule 6.508(D)(3), step two of the procedural-default inquiry is
satisfied.
Step three also is satisfied, because the procedural bar in Rule 6.508(D)(3) is an
adequate and independent ground on which state courts may rely to foreclose review of a
habeas petitioner’s federal claims. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir.
2005) (citing Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000), and Munson v.
Kapture, 384 F.3d 310, 315 (6th Cir. 2004)).
Step four requires determining whether Petitioner has established “cause” for his
failure to comply with Rule 6.508(D)(3) and resulting prejudice. Petitioner argues in
habeas claim seven that his appellate attorney should have raised all his claims on direct
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review. “Ineffective assistance of counsel can constitute cause for a procedural default.”
Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013), cert. denied, 135 S. Ct. 1545
(2015). The Court therefore looks to Petitioner’s underlying claims to determine whether
appellate counsel was ineffective for failing to raise those claims on direct appeal. An
appellate attorney is constitutionally ineffective if (1) the attorney acted unreasonably in
failing to discover and raise nonfrivolous issues on appeal and (2) there is a reasonable
probability that the petitioner would have prevailed on appeal if his appellate attorney
had raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland v.
Washington, 466 U.S.668, 687-91, 694 (1984)).
2. The Underlying Claims
a. Evidence that Petitioner Threatened the Complainant and
Put Dirt in Her Mouth
Petitioner alleges in claim two that the prosecution failed to support the
complainant’s claim that Petitioner put dirt in her mouth and threatened to kill or harm
her. Petitioner contends that the only evidence of this was the victim’s unsubstantiated
testimony.
Petitioner cites the Supreme Court’s decision in Jackson to support his claim. To
the extent he is asserting that the prosecution failed to prove the “force or coercion”
element of the charge against him, his claim lacks merit because it merely challenges the
complainant’s credibility and the complainant’s testimony in a criminal-sexual-conduct
case does not have to be corroborated. Mich. Comp. Laws § 750.520h. Thus, appellate
counsel was not ineffective for failing to raise Petitioner’s second claim on direct review.

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b. Alleged Perjury
The third habeas claim alleges that the prosecutor allowed the victim to perjure
herself. Petitioner contends that the victim’s story changed from when she was initially
questioned by the police to the time of trial and that the evidence became more damning
as the case progressed.
Prosecutors may not deliberately deceive a court or jurors by presenting evidence
that they know is false. Giglio v. United States, 405 U.S. 150, 153 (1972). Prosecutors
also may not allow false evidence to go uncorrected when it appears. Id. But to prevail
on a claim that the prosecutor presented false testimony, a habeas petitioner must show
that (1) the testimony was actually false, (2) the testimony was material, and (3) the
prosecutor knew the testimony was false. Amos v. Renico, 683 F.3d 720, 728 (6th Cir.
2012); Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting United States v.
Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)).
The complainant told the police that Petitioner held her arms down and tried to get
in her, but she kept her legs together and did not know whether Petitioner was able to get
in her. (Pet. for Writ of Habeas Corpus, Ex. 1, p. 1) At the preliminary examination, the
complainant testified that she could not move her legs when Petitioner pinned her down
and that Petitioner had tried to put his penis in her private area, but he could not put it in
her all the way. (Prelim. Examination, at 11-12, Aug. 10, 2005.) Finally, at trial, the
complainant testified her legs were up and apart during the assault and that Petitioner
stuck his penis part-way inside her private area. (Trial Tr. Vol. III, at 111-12, May 15,
2008.)
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Petitioner contends that the complainant’s trial testimony – that her legs were up
and apart – was inconsistent with the complainant’s statement to the police and testimony
at the preliminary examination. But the complainant explained at trial that, although she
had been trying to keep her knees together, Petitioner had spread her legs apart. (Id. at
142.) Even if the complainant’s testimony was inconsistent with her prior testimony or
statement to the police, “mere inconsistencies in testimony by government witnesses do
not establish knowing use of false testimony.” Lochmondy, 890 F.2d at 822. Therefore,
Petitioner’s perjury claim lacks merit, and appellate counsel was not ineffective for
failing to raise the claim on appeal.
c. The Delay in Trying Petitioner
The fourth habeas claim alleges that the prosecution failed to try Petitioner in a
timely manner. Petitioner asserts that he was arrested on July 26, 2005, but not tried until
May 13, 2008, 33½ months after his arrest.
The Sixth Amendment to the United States Constitution provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”
U.S. CONST. amend. VI. 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. Barker v. Wingo, 407
U.S. 514, 530 (1972). None of these four factors 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
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relevant.” Id. at 533. “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)
Petitioner was tried almost three years after his arrest, but much of the delay was
due to waiting for the results of DNA testing. Because the absence of Petitioner’s DNA
on the complainant’s underwear would have bolstered Petitioner’s defense, he had an
interest in having the tests completed, and some of the delay can be attributed to him.
Brown v. Bobby, 656 F.3d 325, 334 (6th Cir. 2011). Other delays were due to
Petitioner’s motions for discovery, for an independent polygraph examination, for
permission to admit evidence of the complainant’s prior false accusation, and for
appointment of a DNA expert. Nothing in the record suggests that any delay was due to
bad faith on the part of the prosecution or an attempt to seek a tactical advantage over
Petitioner.
Furthermore, the record indicates that Petitioner stipulated to an adjournment in
the trial date at least six times, and the last stipulation occurred on April 22, 2008, which
was less than a month before trial. The record also indicates that Petitioner never
formally asserted his right to a speedy trial, and even though he alleges that he was
prejudiced by the delay because he lost his liberty, he was released on bond 5½ months
after his arrest. For all these reasons, Petitioner’s speedy trial claim lacks merit, and
appellate counsel was not ineffective for failing to raise a speedy trial claim on direct
review.

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d. The Prosecutor’s Conduct
Habeas claim five alleges that the prosecutor engaged in misconduct by vouching
for the complainant’s credibility and by denigrating Petitioner during closing arguments.
The “clearly established Federal law” here is the Supreme Court’s decision in Darden v.
Wainwright, 477 U.S. 168 (1986), where the Supreme Court stated that
it “is not enough that the prosecutor[’s] remarks were undesirable or even
universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036
(11th Cir. 1983)]. The relevant question is whether the prosecutor[’s]
comments “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.
637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate
standard of review for such a claim on writ of habeas corpus is “the narrow
one of due process, and not the broad exercise of supervisory power.” Id.,
at 642, 94 S.Ct., at 1871.
Id. at 181.
i. Vouching
Petitioner contends that the prosecutor vouched for the complainant by stating that
her story was consistent. The actual comment was that the complainant “never changed
her story.” (Trial Tr. Vol. V, at 83, May 20, 2008.)
“Improper vouching occurs when a prosecutor supports the credibility of a
witness by indicating a personal belief in the witness’s credibility [,]
thereby placing the prestige of the [prosecutor’s] office . . . behind that
witness.” United States v. Trujillo, 376 F.3d 593, 607 (6th Cir. 2004)
(internal quotation marks omitted). “Improper vouching involves either
blunt comments or comments that imply that the prosecutor has special
knowledge of facts not in front of the jury.” Id. at 607–08 (internal
alterations and quotation marks omitted).
United States v. Garcia, 758 F.3d 714, 723 (6th Cir. 2014) (second alteration and ellipsis
added).

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The disputed comment here – that the complainant never changed her story – was
a response to trial testimony that the complainant had accused her mother’s boyfriend of
sexually abusing her in the past and then recanted her accusation. The prosecutor was
attempting to show that, unlike the situation with the mother’s boyfriend, the complainant
never recanted her accusations about Petitioner.
Furthermore, in their role as advocates, prosecutors may seek to establish the
credibility of their chief witness through argument rather than their own personal
assurances. Id. at 723. And arguing that prosecution witnesses are credible because their
testimony was consistent is not improper if the prosecutor did not imply that she
personally believed the witnesses or that she knew of evidence which demonstrated the
witnesses’ truthfulness, but was not before the jury. United States v. Jackson, 473 F.3d
660, 672 (6th Cir. 2007). Here, the prosecutor did not express a personal belief in the
complainant, and she did not imply that she knew something about the complainant’s
truthfulness which was not revealed to the jury. Thus, the prosecutor’s comment was
proper, and appellate counsel was not ineffective for not raising the issue on direct
appeal.
ii. Denigrating Petitioner
Petitioner contends that the prosecutor engaged in misconduct when she made the
following comments during closing arguments:
I think his statements are very important. So you clearly have the
defendant in this case out and out lying. And then, as it goes, he’s trying to
explain why things happened.
....
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I believe, beyond a reasonable doubt, the evidence has also shown that the
defendant . . . committed the crime of criminal sexual conduct in the second
degree.
....
This case is about a predator and his prey. And that’s why he’s guilty
beyond a reasonable doubt.
(Trial Tr. Vol. V, at 87, 89-90, May 20, 2008.)
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 a personal opinion concerning the defendant’s guilt, United States v. Daniels, 528
F.2d 705, 709 (6th Cir. 1976). But 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).
The prosecutor’s remarks in this case were reasonable inferences from evidence
about Petitioner’s statements to police officers. The evidence established that the
complainant met Petitioner in the park on Tuesday, May 24, 2005. The alleged assault
occurred on the following day, Wednesday, May 25, 2005. On the next day, Thursday,
May 26, 2005, the complainant and her friend met Petitioner in the park and spoke with
him. Petitioner was stopped by Police Officer Beth Kangas Schwab that day, and he
informed Officer Schwab that he had spoken to a couple of girls in the park, but that he
did not know who they were and had not previously met them. (Trial Tr. Vol. II, at 13537, 159, May 14, 2008.)

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On the following day, May 27, 2005, Police Officer Kevin Klein spoke with
Petitioner. Petitioner told Officer Klein that he first met and spoke with the two girls on
the previous day (May 26, 2005), and that he did not go for a walk with the girl. (Id. at
177-78.) A few months later on November 20, 2005, Petitioner told Lieutenant Brian
Cole of the Michigan State Police that he had tried to have sex with the complainant but
that she would not allow him to have intercourse with her. So, they stopped what they
were doing, put their clothes on, and left the park. (Id. at 197-99.) Finally, on January
20, 2006, Petitioner confronted Lieutenant Cole and accused Cole of writing untrue
things about him in Cole’s report about his interview with Petitioner on November 20,
2005. (Id. at 200.)
The prosecutor reasonably inferred from Petitioner’s conflicting statements and
the other evidence in the case that he lied to the police. Moreover, a prosecutor’s
gratuitous insult and reference to the defendant as a liar does not deprive the defendant of
a fair trial. Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988).
The prosecutor’s other remarks – that Petitioner was a predator and guilty of
criminal sexual conduct – were supported by testimony that he forced himself on a young
woman who was a slow learner and dependent on others. And because a prosecutor’s
reference to a defendant as a “predator” does not necessarily deprive the defendant of a
fair trial, United States v. Davis, 514 F.3d 596, 616 (6th Cir. 2008), the prosecutor’s
remarks about Petitioner were not improper.
Finally, the trial court instructed the jurors more than once that the attorneys’
arguments were not evidence. (Trial Tr. Vol. II, at 99-100, May 14, 2008; Trial Tr. Vol.
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V, at 57, May 20, 2008.) For all these reasons, the prosecutor’s remarks did not deprive
Petitioner of a fair trial, and appellate counsel was not ineffective for failing to raise
Petitioner’s prosecutorial-misconduct claim on direct appeal.
e. Trial Counsel
The sixth habeas claim alleges that trial counsel was ineffective. Petitioner
contends that trial counsel was ineffective for failing to (i) object to the prosecutor’s
conduct, (ii) object to the speedy-trial violation, (iii) impeach the victim with her prior
inconsistent statements, (iv) object to the improper preservation of DNA evidence, and
(v) request an independent examination of the DNA evidence.
An attorney is constitutionally ineffective if “counsel’s performance was
deficient” and “the deficient performance prejudiced the defense.” Strickland, 466 U.S.
at 687. An attorney’s performance is deficient if “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. The petitioner must show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687.
An attorney’s deficient performance is prejudicial if “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The
defendant must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
The prosecutor’s remarks about the consistency of the complainant’s story and
Petitioner’s lies did not deprive Petitioner of a fair trial, and Petitioner’s speedy-trial
claim lacks merit because, among other things, he stipulated to postponements of the trial
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date and he failed to show actual prejudice from the delay. Consequently, trial counsel’s
failure to object to the prosecutor’s conduct and to the delay in trying Petitioner did not
constitute ineffective assistance.
Petitioner claims that his attorney should have impeached the victim with her prior
inconsistent statements. The record, however, reveals that defense counsel did question
the complainant about her prior inconsistent statement to the police in which she stated
that she held her legs together and that she did not know whether Petitioner had
penetrated her. (Trial Tr. Vol. III, at 142-44, May 15, 2008.) Defense counsel also
questioned the complainant about inconsistencies between her statements to a nurse and
an employee of the Child Advocacy Center. (Id. at 144-46.) The record belies
Petitioner’s claim about his attorney not attempting to impeach the complainant.
Petitioner’s remaining claims about trial counsel concern the DNA evidence.
Petitioner alleges that defense counsel should have objected to the evidence being
improperly preserved. According to Petitioner, a buccal swab was taken from him on
May 26, 2005, and stored in a locker until October 6, 2005, when it was finally removed
from the locker and refrigerated.
Although Petitioner contends that the prosecution acted in bad faith by not
preserving the evidence, the failure to refrigerate the evidence could have been the result
of negligence, as opposed to, bad faith. Cf. Arizona v. Youngblood, 488 U.S. 51, 58
(1988) (stating that the failure to refrigerate the clothing of a sexual assault victim and the
failure to perform tests on semen samples “can at worst be described as negligent”)
Furthermore, Petitioner has not shown how failing to refrigerate the sample prejudiced
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him. And even though he contends that defense counsel should have requested an
independent examination of the DNA evidence, the record indicates that defense counsel
did request county funds to hire someone who could conduct an independent examination
of the DNA. See transcript of motion for appointment of DNA expert, ECF No. 11-10.
To conclude, trial counsel performed adequately. Therefore, appellate counsel
was not ineffective for failing to assert a claim about trial counsel on direct appeal.
3. Conclusion on Claims Two through Six
Habeas claims two through six regarding trial counsel, the prosecutor’s conduct,
the lack of a speedy trial, the alleged perjury, and the complainant’s testimony about
Petitioner’s conduct lack merit. Therefore, appellate counsel was not ineffective for
failing to raise those claims on direct appeal, and Petitioner has failed to establish “cause”
for his procedural default of not raising claims two through six on direct appeal.
The Court need not determine whether Petitioner was prejudiced by the alleged
constitutional errors, because he has not shown “cause” for his procedural default. Smith
v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir.
1983). In the absence of “cause and prejudice,” a habeas petitioner can proceed with a
procedurally defaulted claim only if he “demonstrate[s] that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006)
(citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To be credible, [a claim of actual
innocence] requires [the] petitioner to support his allegations of constitutional error with
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new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner has not produced any new evidence that was not presented at trial.
Therefore, a miscarriage of justice will not occur as a result of the Court’s failure to
address the substantive merits of claims two through six. Those five claims are
procedurally defaulted, as all four elements of the procedural-default inquiry are satisfied.
C. Claim Seven: Ineffective Assistance of Appellate Counsel
The seventh and final claim raises an independent argument about appellate
counsel. Petitioner contends that appellate counsel did not review all the facts,
investigate meritorious issues, or include all his issues in the appeal of right. Petitioner
maintains that, but for counsel’s conduct, the result of the appeal would have been
different.
The trial court addressed and rejected this claim in its order denying Petitioner’s
motion for relief from judgment. The court stated that Petitioner had “failed to provide
the Court with any evidence or information to support the theory that appellate counsel
erred in deciding not to raise certain issues on appeal.” People v. Comtois, No. 0510619-FC, Op. and Order Denying Deft’s Mot. for Relief from J., page 6 (Bay Cty. Cir.
Ct. Mar. 15, 2013) (emphasis in original).
It is clearly established federal law that
[a]ppellate counsel “need not advance every argument, regardless of merit,
urged by the appellant.” Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830,
83 L.Ed.2d 821 (1985)(emphasis in original). Furthermore, there is no
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constitutional right to have every nonfrivolous issue raised on appeal, Jones
v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983),
and tactical choices regarding issues raised on appeal are properly left to
the sound professional judgment of counsel. United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990).
Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). “This process of ‘winnowing out
weaker arguments on appeal and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v.
Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751–52).
The claims that appellate counsel failed to raise on appeal lack merit for the
reasons given above, and there is not a reasonable probability that Petitioner would have
prevailed on appeal if his attorney had raised all his claims on direct review.
Consequently, appellate counsel was not ineffective, and the state trial court’s rejection of
Petitioner’s claim about appellate counsel was not contrary to, or an unreasonable
application of, Supreme Court precedent. “[B]y 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).
IV. Conclusion
Habeas claims two through six are procedurally defaulted, and the state courts’
adjudication of Petitioner’s claims about the sufficiency of the evidence and appellate
counsel did not result in decisions that were contrary to federal law, unreasonable
applications of federal law, or unreasonable determinations of the facts. Accordingly, the
habeas petition is denied.

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V. Certificates of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
Where 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 . . . . When the
district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Reasonable jurists could not debate the Court’s assessment of Petitioner’s first and
seventh claims regarding the sufficiency of the evidence and appellate counsel.
Reasonable jurists also could not find it debatable whether the Court’s procedural ruling
on claims two through six is correct or whether the petition states a valid claim of the
denial of a constitutional right. The Court therefore declines to grant a certificate of
appealability on any of Petitioner’s claims. Petitioner nevertheless may proceed in forma
pauperis on appeal if he appeals this decision, because he was granted leave to proceed in

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forma pauperis in this Court, and an appeal could be taken in good faith. Fed. R. App. P.
24(a)(3)(A).

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: May 22, 2017

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on May 22, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

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