Lavely v. Winn
OPINION and ORDER denying the Petition for Writ of Habeas Corpus 1 and Declining to Issue Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
WILLIAM EDWARD LAVELY,
Case Number 2:15-CV-11245
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
William Edward Lavely, (“Petitioner”), confined at the Cotton
Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of
habeas corpus with this Court pursuant to 28 U.S.C. § 2254, challenging
his convictions for two counts of first-degree criminal sexual conduct,
M.C.L.A. 750.520b(1)(A). For the reasons that follow, the petition for writ of
habeas corpus is DENIED WITH PREJUDICE.
Petitioner’s granddaughters, KE and LL, testified that petitioner had
sexually penetrated them when they were under 13 years of age.1
Because the victims were minors at the time of the sexual assault, the Court will refer to these
individuals by their initials only, as the Michigan Court of Appeals did in their opinion. See Fed. R. Civ. P.
Petitioner denied sexually assaulting the victims. The jury chose to believe
Petitioner’s conviction was affirmed. People v. Lavely, No. 312389,
2013 WL 5989671 (Mich.Ct.App. Nov. 12, 2013); lv. den. 495 Mich. 994
Petitioner filed a petition for writ of habeas corpus, which was held in
abeyance so that petitioner could exhaust additional claims. Lavely v.
Winn, No. 2:15-cv-11245, 2015 WL 2084675 (E.D. Mich. May 5, 2015).
Petitioner’s post-conviction motion was denied by the trial court.
People v. Lavely, No. 11-4322-FC (Clare Cty.Cir.Ct. Aug. 2, 2016).
Petitioner was denied leave to appeal. People v. Lavely, No. 334604
(Mich.Ct.App. Mar. 6, 2017); lv. den. 501 Mich. 981 (2018).
Petitioner’s case has now been reopened. Petitioner seeks habeas
relief on the following ground: (1) Petitioner was denied the effective
assistance of trial counsel.
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
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
(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
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. “[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)).
Petitioner argues he was denied the effective assistance of trial
To prevail on his ineffective assistance of counsel claims, petitioner
must show that the state court’s conclusion regarding these claims was
contrary to, or an unreasonable application of, Strickland v. Washington,
466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). Strickland established a two-prong test for claims of ineffective
assistance of counsel: the petitioner must show (1) that counsel’s
performance was deficient, and (2) that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687.
Petitioner first claims that trial counsel was ineffective in eliciting
damaging information from the victims during cross-examination. The
Michigan Court of Appeals rejected the claim:
Defense counsel’s inquiry of KE regarding inappropriate things
that defendant had said to her was merely an attempt to clarify
KE’s direct examination testimony that defendant “says
inappropriate things sometimes.” When asked whether
defendant’s comments annoyed her, KE responded
affirmatively. Having KE reiterate that defendant made
comments that annoyed her allowed the jury to infer some level
of hostility that could cause her to fabricate allegations against
him, a matter that counsel explored during his closing
argument. Thus, defense counsel’s inquiry appeared to
constitute sound trial strategy.
With respect to defense counsel’s questioning of LL regarding
her allegation that defendant had sexually assaulted her in
Detroit, the record shows that counsel was attempting to
discredit LL. LL testified that defendant sexually assaulted her
in Detroit approximately 25 to 30 times while he was babysitting
her. To discredit her allegation and undermine LL’s credibility in
general, counsel questioned defendant’s wife regarding
whether defendant had ever babysat LL in Detroit. Defendant’s
wife denied that defendant had ever babysat LL in Detroit. She
explained that LL’s other grandparents had cared for LL as
needed at that time in LL’s life, which LL’s aunt and brother
confirmed. During closing argument, counsel used LL’s
testimony about the alleged sexual abuse in Detroit to call into
doubt her character for truthfulness. Thus, counsel’s
questioning constituted sound trial strategy.
In addition, regarding defense counsel’s inquiry of LL to
expound on what she meant when she testified that defendant’s
attempts to penetrate her “hurt,” counsel used that testimony to
highlight the lack of physical evidence: Counsel argued during
closing argument that although LL maintained that it “hurt,”
there was no report evidencing scarring, tearing, or anything of
the sort. Thus, again, counsel’s questioning constituted sound
People v. Lavely, 2013 WL 5989671, at * 2 (internal citations omitted).
Counsel’s performance in eliciting allegedly prejudicial testimony from
the victims was not deficient, so as to support petitioner’s ineffective
assistance of counsel claim; the questions were part of a legitimate
strategy to cast doubt on the prosecution’s case or the victims’ credibility.
See Campbell v. U.S., 364 F.3d 727, 734-35 (6th Cir. 2004); See also
Urban v. Ohio Adult Parole Auth., 116 F. App’x. 617, 622 (6th Cir. 2004).
Petitioner next claims that trial counsel was ineffective for calling a
defense witness who offered damaging testimony against petitioner. The
Michigan Court of Appeals rejected this claim:
Defendant also contends that defense counsel called witnesses
whose testimony aided the prosecution. Defendant cites to the
testimony of “KA,” KE’s sister, who testified that the way that
defendant said things “sometimes was kinda creepy.” She also
maintained that defendant made inappropriate comments about
her physical appearance. Contrary to defendant’s argument,
the prosecution, rather than defense counsel, elicited that
testimony from KA on cross-examination. During his redirect
examination of KA, defense counsel attempted to mitigate the
effect of that testimony by asking KA whether defendant is “an
outgoing, joking-type individual” to which KA responded
affirmatively. Thus, counsel’s questions were strategically
designed to mitigate the effect of the prosecutor’s crossexamination of KA. Moreover, on direct examination, defense
counsel elicited testimony that KA had no memory of an
incident that allegedly occurred in defendant’s bedroom. KE
maintained that KA had been present during the incident. 2
Thus, defense counsel elicited testimony from KA that assisted
People v. Lavely, 2013 WL 5989671, at * 2.
Petitioner cannot show that trial counsel was ineffective for calling KA
as a witness, since counsel’s decision to call KA as a defense witness was
part of a strategy to obtain favorable information from this witness. See
The incident forms the factual basis of one of defendant's convictions. (Footnote original).
Awkal v. Mitchell, 613 F.3d 629, 642-43 (6th Cir. 2010). Counsel did, in
fact, obtain favorable evidence from KA. This claim is without merit.
Petitioner next contends that counsel was ineffective in his
questioning of KE’s mother.
The Michigan Court of Appeals rejected this claim:
Defendant next argues that defense counsel’s questioning of
KE’s mother, “Laurie,” corroborated an incident that KE had
testified occurred in defendant’s bathroom. Laurie testified that
when KE was approximately six years old she told Laurie that
defendant had wiped her vagina after she had used the toilet
and wanted to talk to her about sex. Counsel asked Laurie
whether she had taught KE to tell her if anything of a sexual
nature occurred to KE. Laurie responded affirmatively and then
testified that KE had told her about the incident in the bathroom.
Notably, Laurie did not testify that KE had told her about any
other alleged inappropriate conduct that occurred when KE was
a child. Moreover, Laurie’s testimony regarding the bathroom
incident was at odds with Laurie’s sister’s testimony. Laurie
denied that defendant had helped KE wipe her “tushie” and
claimed that defendant had helped KE wipe her vagina.
Laurie’s sister, “Lisa,” on the other hand testified that Laurie
had asked her to talk to KE because KE told Laurie that
defendant had helped wipe her butt in the bathroom and it
made KE uncomfortable. Thus, defense counsel’s questioning
of Laurie and Lisa assisted defendant’s case by casting doubt
on the credibility of both KE and Laurie regarding the alleged
bathroom incident. Further, counsel elicited testimony from
Laurie that she had never observed anything to make her think
that defendant had interacted inappropriately with KE.
People v. Lavely, 2013 WL 5989671, at * 3.
Counsel was not ineffective in asking these questions to KE’s mother,
because counsel was attempting to elicit this information to cast doubt on
the prosecution’s case or the credibility of the victims. Campbell v. U.S.,
364 F.3d at 734-35; Urban v. Ohio Adult Parole Auth., 116 F. App’x. at 622.
Petitioner next contends that trial counsel was ineffective for eliciting
testimony from petitioner’s sister that she had been sexually abused by
their father until she was eleven years old. The Michigan Court of Appeals
rejected this claim:
Defendant argues that such testimony was not helpful because
it is known that sexual abuse runs in families. The record shows
that defense counsel relied on defendant’s sister’s history of
sexual abuse and her experience as a nurse to strengthen her
testimony that she never suspected that either KE or LL had
been abused. Calling on defendant’s sister’s personal
knowledge in such fashion was a reasonable strategic decision.
People v. Lavely, 2013 WL 5989671, at * 3.
Counsel’s decision to ask petitioner’s sister to testify about her own
sexual abuse at the hands of their father in order to explain why she did not
believe that the victims had been sexually abused was not ineffective
because counsel did this to obtain favorable information from this witness.
Awkal, 613 F.3d at 642-43.
Petitioner next contends that trial counsel was unprepared to
question one of petitioner’s character witness, Therese Sandomierski,
because counsel was unaware of Sandomierski’s professional credentials
which would have permitted her to be qualified as an expert witness in
order to offer her expert opinion that petitioner had not sexually assaulted
the victims. The Michigan Court of Appeals rejected this claim:
Defendant also asserts that defense counsel was unprepared
to question Therese Sandomierski, one of defendant’s
character witnesses. Sandomierski testified that Lisa is her
closest friend and that defendant and his wife are like family to
her. On cross-examination the prosecutor elicited testimony
regarding Sandomierski’s education, and Sandomierski testified
that she has a doctorate degree in school psychology. On
redirect examination defense counsel sought to qualify
Sandomierski as an expert, but the trial court denied the
request. Because defense counsel called Sandomierski as a
character witness, which Sandomierski confirmed in the
beginning of her testimony, he cannot be faulted for being
unaware of her professional credentials. In any event, the trial
court permitted Sandomierski to offer her lay opinion that,
looking back at the time that she spent with defendant’s family,
there was no indication that defendant was sexually abusing
either KE or LL. Thus, Sandomierski’s opinion was admitted as
evidence, albeit her lay opinion rather than her expert opinion
was admitted. Accordingly, defendant has failed to show that
trial counsel’s performance fell below an objective standard of
People v. Lavely, 2013 WL 5989671, at * 3.
Petitioner cannot prevail on his claim that trial counsel was ineffective
for failing to adequately prepare for Sandomierski’s testimony because he
failed to show how additional preparation would have been beneficial to his
defense. See Martin v. Mitchell, 280 F. 3d 594, 607-08 (6th Cir. 2002).
Petitioner is unable to show that he was prejudiced by counsel’s failure to
qualify Sandomierski as an expert in the area of sexual abuse, because
she was permitted to offer her opinion, albeit as a lay witness, that she saw
no evidence that petitioner was sexually abusing his granddaughters.
Petitioner next claims that counsel was ineffective for asking
petitioner’s wife questions about their sex life. The Michigan Court of
Appeals rejected this claim:
Defendant’s wife testified that they used to engage in sexual
intercourse three or four times a week, but that decreased to
once every two months approximately 20 years previously
because defendant began experiencing chest pains and other
ailments. When asked whether it was painful for defendant to
engage in sexual intercourse, defendant’s wife responded
affirmatively because defendant would have chest pains.
Defendant fails to indicate how his wife’s testimony harmed his
case. In fact, counsel used the testimony to discredit LL’s claim
that defendant sexually assaulted her approximately 20 or 30
times in his Detroit home. Thus, defendant’s challenge lacks
People v. Lavely, 2013 WL 5989671, at * 4.
Conclusory allegations of ineffective assistance of counsel do not
provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998). Petitioner offers no reasons why defense counsel’s
questions to petitioner’s wife were deficient or prejudicial, particularly where
petitioner’s wife’s testimony was used to discredit LL’s testimony.
Petitioner lastly claims that trial counsel was ineffective for allowing
him to testify and to inadequately prepare petitioner for the witness stand.
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Under Strickland, a court must presume that decisions by counsel as
to whether to call or question witnesses or present evidence are matters of
trial strategy. See Hutchison v. Bell, 303 F. 3d 720, 749 (6th Cir. 2002).
Petitioner bears the burden of proving that counsel’s decision to let him
testify could not be considered sound trial strategy under the
circumstances. See Carter v. United States, 160 F. Supp. 2d 805, 812
(E.D. Mich. 2001). It was not unreasonable for counsel to believe,
particularly in light of the facts in this case, that petitioner was unlikely to be
acquitted unless he took the stand and explained his side of the story. See
Flamer v. State of Delaware, 68 F. 3d 710, 730-731 (3rd Cir. 1995); See
also United States v. Johnson-Wilder, 29 F. 3d 1100, 1105 (7th Cir. 1994).
To the extent that petitioner claims that counsel did not adequately prepare
him for the witness stand, this claim fails because petitioner failed to show
how additional preparation time would have improved his testimony. See
Hutchison v. Bell, 303 F. 3d at 748.
The petition for writ of habeas corpus is denied. 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
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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
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 48384 (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. §
For the reasons stated in this opinion, a certificate of appealability is
denied because petitioner failed to make a substantial showing of the
denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d
621, 629 (E.D. Mich. 2001). The Court also denies petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Id.
IT IS ORDERED that:
(1) the Petition for a Writ of Habeas Corpus is DENIED WITH
(2) a Certificate of Appealability is DENIED.
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(3) Petitioner is DENIED leave to appeal in forma pauperis.
Dated: October 9, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 9, 2019, by electronic and/or ordinary mail and also
on William Lavely #848603, G. Robert Cotton Correctional
Facility, 3500 N. Elm Road, Jackson, MI 49201.
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