Cupples v. Perry

Filing 8

OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus 1 and Denying a Certificate of Appealabilty. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS PATRICK CUPPLES,
Petitioner,
v.

Civil No. 2:15-CV-11620
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

MITCH PERRY,
Respondent.
/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF
APPEALABILITY
Thomas Patrick Cupples, (“Petitioner”), confined at the Newberry
Correctional in Newberry, Michigan, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, through his attorney Paul D. Hudson
of Miller Canfield, Paddock & Stone PLC, challenging his convictions for
two counts of second-degree criminal sexual conduct (CSC), for engaging
in sexual contact with a person at least 13 but less than 16 years of age,
who is a member of the same household, M.C.L.A. § 750.520c(1)(b), and
engaging in sexual contact with a person less than 13 years of age,
M.C.L.A.§ 750.520c(1)(a). For the reasons that follow, the petition for a

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writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Oakland County
Circuit Court. This Court recites verbatim the relevant facts relied upon by
the Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
The victim in this case is defendant’s stepdaughter. The victim,
her mother (Reito), and her brother (Michael), lived with defendant
until August 2010, at which time the victim told Reito that
defendant had been sexually assaulting her. The victim, who
turned 13 years old in April 2010, said that on “[m]ore than five,
but ... less than 20” occasions beginning “[a]round the summer of
fifth grade,” defendant “would touch [her] when [she] was
sleeping.” The assaults would occur in her bedroom at night. The
victim would awake to defendant “pulling [her] shorts aside,” and
defendant “would move [her] legs apart if they weren’t apart,” and
“take [her] ankles and stretch them to the side.” Defendant would
expose the victim’s “vaginal area,” and he “touche[d her]” with “his
fingers” and “rub[bed] them around on the outside of the skin, ...
and then he would rub them on the inside” of her vagina for
“[p]robably about five minutes.” In the time leading up to when the
victim revealed the abuse to Reito, she noticed that the touching
had progressed and that defendant “would start rubbing [her] butt.
She pretended to be sleeping during the assaults because she
was “afraid [defendant] might ... attack [her,] ...or tell [her] to not
... tell anyone[,] or ... rape” her, so she “just lay there and tr[ied]
not to move.” When defendant stopped touching her each time,
he would stand in the doorway for several minutes before leaving.
The following day, the victim would “try to act as normal [sic] as
possible” around defendant.
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The victim was not aware of every occasion on which defendant
assaulted her because defendant gave her “sleeping pills some
days[,] and he would give [her] hot chocolate with white powder,”
and she did not know what the powder was. When she took the
pills, which she estimated happened about three times, she would
“feel drowsy,” “fall asleep right away,” “sle[ep] really deep,” and
“didn’t wake up during the night.” During the winter months,
defendant would give the victim hot chocolate at night, about
“once a week,” “[m]ost of [the] time” without the victim having
asked for it. The victim began to discard the hot chocolate
defendant gave her when she noticed the white residue and odd
taste, “[b]ut then [defendant] would always tell [her] the rule was
[she] had to drink the hot chocolate no matter what[,] and [she]
had to finish it.... He never told [her] a reason[;] ... she had to drink
it.” When she drank defendant’s hot chocolate, the victim “felt
sleepy ... and [would] go to sleep.”
The victim also testified that defendant once gave her a “miniature
bottle[ ]” of wine, telling her to drink it, and “gave [her] a shot of
something” afterward. The victim did not want to drink the wine or
the shot, but did anyway, “[b]ecause [defendant] told [her] to and
[she] was kind of scared of him.” On another occasion, when the
victim was 13 years of age, defendant spoke to the victim about
masturbation. The conversation took place in her bedroom, with
the door closed, and lasted about 20 minutes. Defendant did not
touch the victim, but “showed [her] how to rub your vaginal area
to make you feel better.”
************************************************************************
Reito testified that the victim approached her on the patio and told
her, “I hate Tom.” After their discussion wherein the victim
revealed the abuse, Reito gathered the victim and Michael and
left the house. Reito returned to the home two days later with a
police escort to take “as much as [she] could.” She returned to the
house a second time on August 13, 2010, accompanied by friends
and police, to collect more personal belongings. She found that
the locks had been changed. With police supervision, Reito’s
friend replaced the lock on the front door, and they went inside.
Reito saw that the victim’s bedroom had been “completely
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cleaned out,” “[l]ike she never existed.” The victim’s belongings
had been placed in garbage bags and moved to the garage. The
family computer, which they called “[defendant’s] computer,” was
missing, as was its monitor, and the second computer, which had
previously been upstairs, was on the first floor.
A police search of the victim’s room included use of an ultraviolet
light, revealing bodily fluids on a section of carpet. Testing
revealed the presence of semen matching a buccal swab
provided by defendant.
Two jailhouse calls defendant made to his daughter from a
previous marriage, Colleen Fox, as well as his sister, Candy
Shinabarger were played for the jury. The first call was placed on
August 12, 2010, to the marital home where Fox and Shinabarger
had arrived to help defendant. Defendant repeatedly referred to
“assignments,” “homework that you and Tommy [Thomas Patrick
Cupples, Jr., defendant’s son] and [Shinabarger] have to
accomplish tonight,” and a “list of things to do,” which Fox and
Shinabarger were to discuss with defendant’s attorney. He asked
Shinabarger if she was “clear that they have to be done tonight,”
and she said, “Yes, the first thing we’re going to do is move the
comput[—,]” and defendant interrupted, saying, “Don’t, you can’t,
this is all recorded.” He then said, “I just need to know that you
[two] understand what your homework is.” She said, “We do, we
do.”
The second call was placed on the morning of August 13, 2010,
to the same location as the first. The conversation provided, in
pertinent part:
Shinabarger: ... I’ve done a lot of laundry and washed
[the] quilts [t]hat I found in that back closet.
The Defendant: Did you get the other assignments
completed?
Shinabarger: Oh, yeah, and[,] ah.
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The Defendant: I mean like every square inch of ...
Shinabarger: Yep.
The Defendant: Cleaning done?
Shinabarger: Yep, everything’s done[,] and ah, it’s all
prepared for our company this weekend and it’s also
prepared for [Tommy] when he comes out here to be
with you.
The Defendant: Oh, outstanding.
Shinabarger: Yeah, yep, so I’ve taken[,] ah, you
know[,] things to the basement again, you know[,]
bagged up[,] so ...
Jerry DeRosia, a forensic computer investigator with the Oakland
County Sheriff’s Office, testified that he received the computer
that was taken from the den in the marital home. He noticed that
the hard drive was “very clean,” meaning that “most of the
unallocated space [on the hard drive] seemed to be zeroed out.”
DeRosia expected to find more data in “temporary internet files”
than he actually did, considering that the computer had been used
regularly by four people, each of whom used the internet.
DeRosia uncovered “a lot of pornography,” including duplicates,
comprising “close to half” of all of the images on the computer.
DeRosia noticed several “Flash cookies” on the computer, which
are small files associated with Adobe Flash Player that are
routinely placed on a computer without the user’s knowledge
when the user visits webpages that feature Flash software.
DeRosia found Flash cookies for sleepassault.com, depicting
“teens being ... sexually assaulted while they sleep and don’t
wake up,” as well as mystepdadmademe.com, depicting “girls
having sex with their stepdads,” featuring images of a “[y]oung
adult” female and an “older” male.
People v. Cupples, No. 304393, 2013 WL 2120276, at *1–3 (Mich. Ct. App.
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May 16, 2013).
Subsequent to petitioner’s trial, appellate counsel filed a motion for a
new trial and a motion to remand for a Ginther1 hearing on petitioner’s
ineffective assistance of trial counsel claims. The trial court denied
petitioner’s motion for a new trial and for an evidentiary hearing on January
6, 2012. People v. Cupples, No. 10-233457-FC (Oakland County Circuit
Court, Jan. 6, 2012).
Petitioner’s conviction was affirmed on appeal. People v. Cupples,
2013 WL 2120276, at *1, 13 (Mich. Ct. App. May 16, 2013); lv. den. 495
Mich. 939, 843 N.W.2d 213 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Deficient Performance 1: Defense Counsel Failed to Make an
Obvious Winning Objection to the Prosecution Expert’s False
Testimony that Cupples Had Visited Pornographic Websites
Depicting Sexual Assault of Step-Daughters and Sleeping Victims.
II. Deficient Performance 2: Defense Counsel Failed to Shield
Cupples’ Computer-Forensics Expert from Impermissible
questioning.
III. Prejudice resulting from trial counsel’s errors.

II. Standard of Review

1

People v. Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).

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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
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relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.
The Supreme Court explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s
determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain
habeas relief in federal court, a state prisoner is required to show that the
state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
A habeas petitioner should be denied relief as long as it is within the

8

“realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016).
III. Discussion
The ineffective assistance of counsel claims.
In his first claim, petitioner contends that he was denied the effective
assistance of trial counsel when trial counsel failed to object to Detective
Jerry DeRosia’s expertise and testimony given in connection with flash
cookies found on petitioner’s computer. In his second claim, petitioner
alleges that counsel was ineffective by failing to throughly investigate his
expert witness, Larry Dalman, to avoid impeachment in connection with
prior sexual harassment claims which resulted in disciplinary actions taken
in connection with this witness.
To show that he or she was denied the effective assistance of
counsel under federal constitutional standards, a defendant must satisfy a
two prong test. First, the defendant must demonstrate that, considering all
of the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so

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doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance.
Id. Petitioner must overcome the presumption that, under the
circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme
Court’s holding in Strickland places the burden on the defendant who
raises a claim of ineffective assistance of counsel, and not the state, to
show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard

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‘was incorrect but whether that determination was unreasonable-a
substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The
pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a
general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556
U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to
a Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state court must be granted
a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.” Harrington, 562 U.S. at 101.
“Surmounting Strickland’s high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner brought his ineffective assistance of counsel claims before
the trial court in his motion for a new trial. In denying petitioner’s motion,

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the trial court ruled that even assuming that trial counsel was deficient,
petitioner failed to show prejudice which would have resulted in a different
outcome of his case, but for trial counsel’s deficiency.
Although the Michigan Court of Appeals found that trial counsel was
ineffective by failing to raise an objection to DeRosia’s cookie testimony, in
that it would have been sustained by the trial court, the Court ruled instead
that counsel’s deficiencies did not prejudice petitioner. In quoting the trial
court findings, the Michigan Court of Appeal reasonably found that there
was overwhelming evidence presented at trial with no probability of a
different outcome had DeRosia’s cookie testimony been excluded at trial,
as follows:
In denying defendant’s motion for new trial, the trial court noted:
Defendant takes issue with DeRosia’s testimony that
the presence of the flash cookies necessarily
“means” that “somebody went to that site and viewed
something that required a flash player to make.” This
testimony, Defendant argues, was incorrect, as
Defendant’s computer could have acquired the flash
cookies by visiting another site that included content,
such as banner advertisements using the flash
system, from the “mystepdadandme.com” and
“sleepassault.com.” Thus, the testimony could have
been excluded if a proper objection had been made.
Defendant’s objections to the testimony about what
the presence of the flash cookies “means” appears to
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be legitimate, as it appears that the presence of the
flash cookies does not necessarily imply that
somebody went to “that site” and viewed its contents.
This error also calls into question Detective
DeRosia’s qualifications to testify on this issue.
However, the trial court went on to conclude:
But evidence regarding the flash cookies was only a
small part of the prosecution’s case. In addition, the
prosecution provided testimony from the victim
describing the assaults, as well as credible objective
evidence (such as the semen recovered from the
victim’s bedroom) corroborating the victim’s version
of events and evidence of highly incriminating
statements made by Defendant during his telephone
calls from jail. Moreover, there is no claim that
Detective DeRosia was not qualified to testify
regarding other aspects of Defendant’s computer,
including indication that it had been “cleaned” to
remove indications of how it had been used before it
was turned over to authorities. Finally, the absence
of evidence regarding flash cookies would not have
undermined the credibility of any of the prosecution’s
other evidence.
In this context, the Court does not see even a remote
possibility that the jury would have acquitted
Defendant if his trial counsel had successfully
objected to Detective DeRosia’s testimony regarding
the flash cookies, much less the “reasonable
probability” of such a result required to obtain relief
on this basis. Rather, even if defense counsel was
negligent in failing to object in this regard, such
negligence cannot be said to call into question the
reliability of the jury’s verdict in this case. Thus,
Defendant is not entitled to relief on this basis.

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People v. Cupples, 2013 WL 2120276, at * 8-9.
A reviewing court “need not determine whether counsel’s
performance was deficient ... [i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice ....”.
Strickland, 466 U.S. at 697. Thus, if an alleged error by counsel was not
prejudicial, a federal court need not determine whether counsel’s
performance was constitutionally deficient. See McMeans v. Brigano, 228
F.3d 674, 686 (6th Cir. 2000)(citing to Strickland, 466 U.S. at 697). The
critical inquiry for the Court in this case is whether petitioner was
prejudiced by counsel’s deficiencies in light of the evidence presented at
trial.
Petitioner is unable to show that he was prejudiced by trial counsel’s
deficiencies. The Michigan Court of Appeals, in deference to the trial
court’s findings, reasonably concluded that there was overwhelming
testimony and physical evidence entered at petitioner’s trial to sustain a
conviction against petitioner, in spite of the instances of trial counsel’s
failure to object to the cookie testimony provided by DeRosia, and trial
counsel’s failure to investigate before trial the background of his expert
witness. Furthermore, the prosecution had a strong case against

14

petitioner as delinated in the findings made by the Michigan Court of
Appeals. See Cupples, 2013 WL 2120276, at *10.
Although, the trial court judge found that DeRosia’s flash-cookie
testimony “could have been excluded if a proper objection had been
made,” petitioner would not be able to satisfy the prejudice prong of
Strickland due to amount of overwhelming evidence present by the
prosecutor. Id. at *9.
Likewise, the trial court judge found that assuming that the
prosecutor impeached the defense expert Dalman, so as to provide
credibility to Derosia’s testimony, the only difference in testimony given by
the two experts pertained to the flash-cookies on petitioner’s computer and
this piece of evidence was but a small part of the prosecutor’s closing
argument.
The only substantial disagreement that Dalman had with
Detective Derosia involved the implications that could be drawn
from the discovery of the flash cookies on Defendant’s computer.
As discussed above, however, there is not a reasonable
probability that the result of the trial would have been different if
the evidence of the flash cookies had not been introduced. If so,
it also stands to reason that there is not a reasonable probability
that the result of the trial could have been different if Defendant’s
expert had not been impeached in this regard. Thus, Defendant
cannot establish this element of his ineffective assistance of
counsel claim based on the introduction of the impeachment
evidence.
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People v. Cupples, No. 10-233457-FC, *6 (Oakland County Cir. Ct. Jan. 6,
2012).
Due to the substantial amount of evidence presented, exclusion of
all cookie testimony would not have effected the outcome of petitioner’s
trial. Petitioner has failed to show that he was prejudiced by the inclusion
of Detective DeRosia’s testimony and/or trial counsel’s failure to
investigate his expert witness before trial. Therefore, the Michigan Court
of Appeals reasonably found that trial counsel’s errors did not have an
effect on the verdict due to the overwhelming evidence presented by the
prosecution. Petitioner is not entitled to habeas relief.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus.
A habeas petitioner must receive a certificate of appealability
(“COA”) in order to appeal the denial of a habeas petition for relief from
either a state or federal conviction.2 28 U.S.C. §§ 2253(c)(1)(A), (B). A
court may issue a COA “only if the applicant has made a substantial

2

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
28 U.S.C. foll. § 2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a federal district court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the district court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). This Court denies a certificate of appealability
because reasonable jurists would not find this Court’s assessment of the
claims to be debatable or wrong. Id. at 484.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 31, 2017

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I hereby certify that a copy of the foregoing document was served upon
counsel of record on July 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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