JONES v. BAUMAN

Filing 5

OPINION and ORDER Denying Petition For Writ Of Habeas Corpus 1 And Denying Certificate Of Appealability. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMONT ALPHONSO JONES,
Petitioner,

Civil Action No. 14-CV-14849

v.

HON. BERNARD A. FRIEDMAN

CATHERINE S. BAUMAN,
Respondent.
______________

/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on petitioner’s petition for a writ of habeas corpus
[docket entry 1]. Petitioner challenges his convictions for five counts of first-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520b(1)(a), and one count of second-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). He seeks habeas corpus relief on the
ground that he received ineffective assistance of counsel. Respondent has filed an answer
arguing that petitioner’s ineffective assistance of counsel claim is meritless. The Court denies
the petition and declines to issue a certificate of appealability.
I. BACKGROUND
Petitioner’s convictions arise from the sexual assaults of J.R., who was only nineyears old when petitioner began abusing her. The Michigan Court of Appeals summarized the
circumstances leading to petitioner’s convictions as follows:
The victim, 12 years old at the time of trial, lived with her mother.
Defendant, a friend of the victim’s older brother, began caring for
the victim when her mother was away and practically lived in the
home. When the victim was nine years old, she became involved
in a sexual relationship with defendant. Their first sexual
encounter occurred when they went upstairs to a bedroom and

defendant rubbed his penis against her vagina. After this initial
encounter, the victim and defendant would have sex almost every
other day, including oral and anal sex.
One particular occasion occurred in September 2010, when the
victim and defendant were engaged in vaginal intercourse in the
living room. One of the victim’s brothers and his friend looked
through the window and saw defendant and the victim. Defendant
told the victim to leave the house and that he would tell her brother
it was a different girl. However, the victim’s brother testified that
he saw the victim and defendant having sex. The friend also
testified that he saw defendant having sex with a girl, but he could
not see the girl’s face. Both the brother and his friend testified that
defendant told them not to tell anyone and that he was with a
different girl.
The victim admitted that she had been suspended from school on
numerous occasions and that she had been placed on a tether. She
also indicated that she had been sent to a mental hospital. The
victim’s mother testified that the victim had some truancy
problems that worsened over time, and that the victim was
admitted to Hawthorne, a psychiatric hospital, after refusing to go
to school.
According to the victim, her mother paid for two cellular phones
with which the victim and defendant would exchange text
messages. Defendant referred to the victim as “baby babe” or
“wifey” in some of the text messages. The victim also claimed
that she told a school counselor that she was having sex with
defendant. The counselor, however, testified that the victim said
she was having sex with a male classmate, although the counselor
did not believe her. The counselor contacted child protective
services and the victim’s mother, communicating suspicions that
the victim might be pregnant.
The victim also recalled one time when she was 11 years old and
her friend was spending the night. While the victim and defendant
were having sex, the friend walked into the bedroom. The friend
testified to seeing the victim’s vagina in defendant’s mouth, and
that defendant said he would kill himself if they told anyone about
the relationship. The victim then sent a message to her friend’s
mother, confessing that she was having sex with defendant. The
victim’s parents were notified, and they took the victim to the
hospital for a physical examination.

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Because the victim recently had sex with defendant, nurses took a
number of samples including a swab of the victim’s neck because
defendant would suck on and kiss her neck. A certified sexual
assault nurse examiner testified that the victim stated that she had
sex with defendant and he threatened to kill himself if she refused.
The nurse testified that the vaginal examination was consistent
with the victim’s reported history.1
An expert in forensic biology and DNA analysis testified that DNA
from the victim’s neck was consistent with defendant’s DNA. The
expert explained that the sample was more consistent with direct
contact, not a secondary transfer that would occur if the victim
touched a surface with defendant’s body fluid and then touched her
neck. Another person’s DNA, not belonging to the victim or
defendant, was detected but the sample was too small to be used as
a match.
After reporting the sexual relationship, the victim participated in
two Kids Talk interviews.2 Before the first Kids Talk interview,
defendant told the victim that they could get out of the situation
and be together if she denied that they had sex. Accordingly, the
victim denied having sex with defendant and reported that she had
sex with two boys at school. Before her second interview with
Kids Talk, the victim smoked marijuana and had sex with
defendant. She claimed that during this second interview, she told
the truth about having sex with defendant.
The victim and defendant continued their sexual relationship even
after the second Kids Talk interview. The victim testified that she
last had sex with defendant in a car parked at the West Chester
Towers, he lost his cellular phone, and he was arrested when they
returned home. Defendant, however, testified that he was looking
for his cellular phone in the car and the victim came out to
apologize to him and tell him that she would fix the situation. The
arresting police officer testified that he saw defendant leaning
outside of a parked car and saw a female exit the car and go into a
nearby house.
At trial, defendant testified to a much different version of events.
He claimed that he considered the victim to be like a sibling and
that he did not look at her in a sexual way. He denied using her
mother’s cellular phone for text messages. He claimed that he had
sex in the house with girlfriends, and that when the victim’s
brother and friend saw him in living room, he was having sex with
one of his girlfriends. Defendant also testified that the victim was
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out of control and that she hung out with boyfriends all the time.
According to defendant, the victim was involved in a sexual
relationship with her friend’s brother, defendant threatened to tell
the victim’s mother about the relationship, and in retaliation the
victim reported that she was having sex with defendant.
1

While at the hospital, the victim sent a message to [a] male friend
with whom she had a relationship.
2

Kids Talk is an independent group that specializes in forensic
interviews with children.
People v. Jones, No. 305586, 2013 WL 4746730, *1–2 (Mich. Ct. App. Sept. 3, 2013).
Following a jury trial in Wayne County Circuit Court, petitioner was convicted of
five counts of first-degree criminal sexual conduct and one count of second-degree criminal
sexual conduct. On June 13, 2011, he was sentenced to concurrent prison terms of twenty-five to
fifty years for each first-degree criminal sexual conduct conviction and five to fifteen years for
the second-degree criminal sexual conduct conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims: (i) inadmissible hearsay; (ii) cruel and unusual punishment; (iii) the prosecution failed to
correct false testimony; (iv) confrontation clause; (v) ineffective assistance of counsel; (vi)
denied right to present an alibi witness; (vii) denied right to a plea agreement; (viii) ineffective
assistance of appellate counsel; and (ix) cumulative effect of errors denied defendant his right to
fair trial. The Michigan Court of Appeals affirmed Petitioner’s convictions and sentences.
Jones, 2013 WL 4746730, at *10.
Petitioner sought leave to appeal in the Michigan Supreme Court raising two
claims for relief: ineffective assistance of trial counsel and improperly allowed prejudicial
hearsay testimony. The Michigan Supreme Court denied leave to appeal. People v. Jones, 840
N.W.2d 314 (Mich. 2013).
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Petitioner then filed the pending habeas petition through counsel. He argues that
his defense counsel was ineffective in failing to call three witnesses: two of J.R.’s classmates
with whom she had sexual relations, and Hailey Wilcox, one of Petitioner’s girlfriends.
II. STANDARD
Petitioner’s claims are reviewed using the standards established by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). AEDPA provides:
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
proceedings.
28 U.S.C. § 2254(d).
A state court’s decision is “contrary to” . . . clearly established law
if it “applies a rule that contradicts the governing law set forth in
[United States Supreme Court cases]” or if it “confronts a set of
facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from
[Supreme Court] precedent.”
Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529
U.S. 362, 405–06 (2000).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle from [the

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Supreme] Court’s decisions but unreasonably applies that principle to the facts’ of petitioner’s
case.”

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413).

However, “[i]n order for a federal court find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. . . . The state court’s application must have been ‘objectively unreasonable.’” Id. at
520–21 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). “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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
“[W]hile the principles of ‘clearly established law’ are to be determined solely by
resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in
assessing the reasonableness of a state court’s resolution of an issue.” Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir. 2007). Finally, a federal habeas court must presume the correctness of
state court factual determinations, see 28 U.S.C. § 2254(e)(1), and a petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61
(6th Cir. 1998). Put differently, only factual determinations that are “objectively unreasonable in
light of the evidence presented in the state-court proceeding” will be overturned. McKinney v.
Ludwick, 649 F.3d 484, 488 (6th Cir. 2011) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
III. DISCUSSION
Petitioner argues that habeas relief is warranted because his defense attorney was
ineffective in failing to call two of the victim’s classmates to testify that they had sexual

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intercourse with her and in failing to call Hailey Wilcox to show that it was she, not the victim,
who was seen by the victim’s brother having sex with Petitioner.
AEDPA “erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). The
standard for obtaining relief is “difficult to meet.” Metrish v. Lancaster, 133 S. Ct. 1781, 1786
(2013).

In the context of an ineffective assistance of counsel claim under Strickland v.

Washington, 466 U.S. 668 (1984), the standard is “all the more difficult” because “[t]he
standards created by Strickland and § 2254(d) are both highly deferential and when the two
apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal citations and
quotation marks omitted). “[T]he question is not whether counsel’s actions were reasonable,”
but whether “there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
An ineffective assistance of counsel claim has two components: First, petitioner
must show that counsel’s performance was deficient and, second, that the deficiency prejudiced
his defense. Strickland, 466 U.S. at 687. To establish deficient representation, petitioner must
demonstrate that counsel’s representation “fell below an objective standard of reasonableness.”
Id. at 688. To establish prejudice, petitioner must show that, but for the constitutionally deficient
representation, there is a “reasonable probability” that the outcome of the proceeding would have
been different. Id. at 694.
Petitioner’s claim that defense counsel should have called as witnesses two of the
victim’s male classmates with whom she had been sexually active was denied by the Michigan
Court of Appeals because the state court found the evidence was inadmissible under Michigan’s
rape shield statute. Jones, 2013 WL 4746730 at *8. State-law evidentiary claims are not
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cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Given the Michigan
Court of Appeals’ decision that this evidence was inadmissible, petitioner cannot show how he
was prejudiced by counsel’s failure to attempt to call these witnesses when their testimony would
have been excluded. Moreover, petitioner fails to submit an affidavit from either of these
potential witnesses indicating what their testimony would have been. Conclusory allegations of
ineffective assistance of counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). Petitioner offers no
evidence to support his claim.

Absent such proof, he is unable to establish that he was

prejudiced by counsel’s failure to call these witnesses.
Petitioner also claims that counsel was ineffective for failing to call as a witness
Hailey Wilcox. He argues that Wilcox would have testified that she was the person the victim’s
brother saw having sex with petitioner on the living room couch. Other than his own arguments,
petitioner fails to make an offer of proof in his habeas petition showing that Wilcox was willing
to testify and would have testified in accordance with petitioner’s version of events. In his direct
appeal to the Michigan Court of Appeals, petitioner submitted an unsworn “affidavit of truth”
from Wilcox along with his motion for an evidentiary hearing. The Michigan Court of Appeals
held that the statement, which was not notarized, was not an affidavit under state court rules.
Jones, 2013 WL 4746730, at *8, n.8. The state court also held that petitioner’s testimony about
Wilcox at trial indicated that he saw no reason to bring Wilcox to testify at trial. Id. at *8. The
Michigan Court of Appeals held that, in light of this record, petitioner failed to overcome the
presumption that counsel’s decision not to call Wilcox was sound trial strategy. Id.
Petitioner provides no argument or evidence to show that the state court’s
decision was an unreasonable application of Strickland. The evidence against petitioner was
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strong and included DNA evidence, the victim’s statements to several individuals that she was
engaging in intercourse with petitioner, explicit text messages between petitioner and the victim,
and the victim’s friend’s testimony that she witnessed the victim and petitioner engaging in oral
sex. Counsel reasonably could have concluded that, in light of the strength of this evidence,
Wilcox’s testimony would not have assisted petitioner’s defense. Other than the “affidavit of
proof” disregarded by the Michigan Court of Appeals, petitioner offers no evidentiary support
which would overcome the AEDPA’s doubly deferential standard. Habeas relief is denied on
this claim.
Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is denied and
dismissed.

IT IS FURTHER ORDERED that a certificate of appealability is denied because
petitioner has failed to make a substantial showing of the denial of a federal constitutional right,
and leave to appeal in forma pauperis is denied because the appeal would be frivolous. See Dell
v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002).

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: April 28, 2017
Detroit, Michigan

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on April 28, 2017.
s/Johnetta M. Curry-Williams
Acting in the Absence of Carol Mullins
Case Manager

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