King v. Stewart
OPINION AND ORDER DENYING THE PETITION FOR AWRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-13876
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Renee Marie King (“Petitioner”), filed for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In her application, filed pro se, Petitioner challenges her
conviction for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), first
degree criminal sexual conduct (CSC), Mich. Comp. Laws § 750.520b(1)(a), and
first-degree child abuse, Mich. Comp. Laws § 750.136b(2). The trial court
sentenced Petitioner to mandatory life imprisonment for the murder conviction and
to concurrent prison terms of 30 to 50 years for the first-degree CSC conviction
and 86 to 180 months for the first-degree child abuse conviction. For the reasons
stated below, the petition for a writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Macomb 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 Wagner v. Smith, 581 F.3d 410, 413 (6th
The jury found that defendant killed her two-year-old stepdaughter,
LFW. Defendant was home alone with LFW. A few hours later, after
a 911 call, emergency personnel arrived at defendant’s house and
discovered that the child was dead. Medical evidence indicated that
the child had multiple contusions about her body, including at least 20
different areas of bruising to the head. She also had a serious injury to
her vagina and perineum. The medical examiner determined that the
child died from cardiorespiratory arrest as a result of the head injuries
and classified the death as a homicide. Defendant claimed that the
child’s injuries were inflicted accidentally when defendant was
holding her and dropped her, or when defendant fell while holding
her, or both.
People v. King, No. 309974, 2014 WL 1320155, *1 (Mich. Ct. App. Apr. 1, 2014).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 497 Mich. 903, 856
N.W.2d 45 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court violated appellant’s due process rights by allowing
the prosecutor to introduce unfairly prejudicial evidence of an alleged
incident involving the decedent, not tending to show motive, intent, or
absence of accident.
II. The police violated appellant’s due process rights by failing to
scrupulously honor appellant’s demand for a lawyer and to stop the
custodial interrogation at the hospital; alternatively, defense trial
counsel was constitutionally ineffective in failing to call one of
appellant’s treating doctors to establish that appellant was in custody
and not free to leave the hospital at the time of questioning.
III. The trial court was required to score and consider the sentencing
guidelines for first-degree criminal sexual conduct and first-degree
child abuse, which were the highest crime class felony convictions
because there is no crime class for first-degree felony murder.
Dkt. No. 1, pp. 14–19 (Pg. ID 14–19).
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
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
unreasonable application of, clearly
established Federal law, as determined
by the Supreme Court of the United
(2) resulted in a decision that was
based on an unreasonable determination
of the facts in light of the evidence
presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable application” occurs when
“a state court decision unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 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)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is
required to show that the state court’s rejection of 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. A habeas
petitioner should be denied relief as long as it is within the “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).
A. Claim # 1: The other acts evidence claim.
Petitioner alleges that her due process rights were violated when the trial
court allowed the prosecutor to introduce prejudicial evidence of an alleged
incident involving the victim that did not tend to show motive, intent, or the
absence of accident. Dkt. No. 1, pp. 14–15 (Pg. ID 14–15).
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67–68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Errors in the application of state law, especially rulings regarding the
admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000); see also Regan v. Hoffner,
209 F. Supp. 2d 703, 714 (E.D. Mich. 2002).
Petitioner’s claim that the state court violated Michigan Rule of Evidence
404(b) or any other provision of state law by admitting evidence of her prior acts
of child abuse against the victim is non-cognizable on habeas review. See Bey v.
Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (“Nor do our
habeas powers allow us to reverse [Petitioner’s] conviction based on a belief that
the trial judge incorrectly interpreted the [State] Evidence Code in ruling that the
prior injury evidence was admissible as bad acts evidence in this case.”).
The admission of this “prior bad acts” or “other acts” evidence against
Petitioner at her state trial does not entitle her to habeas relief, because there is no
clearly established Supreme Court precedent holding that a state violates a habeas
petitioner’s due process rights by admitting propensity evidence in the form of
“prior bad acts” evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003);
see also Adams v. Smith, 280 F. Supp. 2d 704, 716 (E.D. Mich. 2003).
Given the lack of holdings by the Supreme Court on the issue of whether a
state court violates a habeas petitioner’s due process rights by the admission of
evidence to establish the petitioner’s propensity to commit criminal acts, the
Michigan Court of Appeals’ rejection of Petitioner=s claim was not an unreasonable
application of clearly established federal law. See Wright v. Van Patten, 552 U.S.
120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 ( 2006).
To the extent that Petitioner contends that evidence of the prior assault
should have been excluded under Michigan Rule of Evidence 403 for being more
prejudicial than probative, she would not be entitled to habeas relief. Appraisals of
the probative and prejudicial value of evidence are entrusted to the sound
discretion of a state trial court judge, and a federal court considering a habeas
petition must not disturb that appraisal absent an error of constitutional
dimensions. See Dell v. Straub, 194 F. Supp. 2d 629, 644–45 (E.D. Mich. 2002)
(“[A] federal habeas court will not disturb a state court’s admission of evidence of
prior crimes, wrongs, or acts unless the probative value of such evidence is so
greatly outweighed by the prejudice flowing from its admission that admitting the
evidence denies the petitioner the due process of law.”). So long as a state court’s
determination that evidence is more probative than prejudicial is reasonable, a
federal court on habeas review will not overturn a state court conviction. See Clark
v. O’Dea, 257 F.3d 498, 503 (6th Cir. 2001).
The Michigan Court of Appeals found that the prior act of striking the
victim in the head was probative as to whether the trauma to the victim’s head was
inflicted deliberately or whether the victim’s injuries were caused accidently, as
LFW died from blunt force trauma to the head. A principal issue at
trial was whether that trauma was inflicted deliberately or whether
the victim’s injuries were accidentally caused. Defendant gave
conflicting accounts of the falls and said both that she accidentally
dropped the child and that she had accidentally fallen while holding
the child. The prosecutor was allowed to introduce evidence that
defendant had previously struck the child in the face deliberately.
Evidence that defendant previously injured the child by deliberately
striking her in the head made it somewhat less likely that she
accidentally injured the child in the head by dropping her. Therefore,
the evidence was relevant for a proper purpose other than
propensity. Given the horrific nature of the injuries the child
sustained while in defendant=s custody, it is highly unlikely that the
jury would have been distracted by, or given undue weight to,
evidence that defendant once bloodied the child’s nose by slapping
her. Therefore, the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice.
Consequently, the trial court did not abuse its discretion in admitting
King, No. 309974, 2014 WL 1320155, *2 (Mich. Ct. App. Apr. 1, 2014).
The state court reasonably determined that the prior child abuse evidence
was more probative than prejudicial. Petitioner is not entitled to habeas relief on
her first claim. Clark, 257 F. 3d at 503.
B. Claim # 2: The admission of oral statements to investigators.
In her second claim, Petitioner alleges that her oral statements made to
investigators were improperly admitted in violation of Miranda v. Arizona, 1
because she was “in custody” and reasonably felt that she was unable to leave the
hospital where the interviews took place. Dkt. No. 1, pp. 16–18 (Pg. ID 16–18).
Petitioner further claims that her statement should have been suppressed because
she had invoked her right to counsel. Id.
In rejecting Petitioner’s claim, the Michigan Court of Appeals found that
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Petitioner was not in custody when she spoke with Officer Derrick Reed and
Detective Sergeant Renee Yax; therefore, Petitioner=s Miranda rights had not been
Defendant was interviewed at the hospital by Officer Reed and then
by Officer Yax. Reed did not advise defendant of her rights before
questioning her. Nevertheless, defendant claims that she asked for
counsel while speaking with Officer Reed. Defendant must be in
custody in order to invoke her right to counsel, and defendant claims
that she was in custody at the time that she spoke to Officer Reed. A
defendant who is questioned at a hospital generally is not in custody
if she is not under arrest and is not otherwise restrained or prevented
from leaving by the police.
At the suppression hearing, the evidence showed that defendant was
at the hospital emergency room, and not interviewed at the police
station. This finding is supported by the testimony of Officer Reed
and defendant, who both stated that they spoke while defendant was
in the hospital. The trial court found that defendant was at the
hospital for medical treatment. This finding is supported by
defendant’s mother’s testimony that she had to leave defendant’s
bedside because defendant “was going through tests and different
things.” The trial court found that defendant “was free to leave and
in fact did leave the hospital,” and this finding is supported by
Officer Reed’s testimony that he did not place defendant under
arrest and that she was free to leave and by defendant’s testimony
that she left after Officer Reed told her she was not under arrest.
While defendant initially testified that Officer Reed threatened to
harm her if she tried to leave, the trial court rejected that testimony,
finding that defendant’s credibility on that point was “suspect,” in
part because that testimony was contradicted by defendant’s later
testimony that she left after Officer Reed told her she was not under
arrest. The trial court found that “[a]ny security that was present was
due primarily to the family altercations in the hospital, not to restrain
the defendant and there was no evidence that the police were in any
way acting as security.” This finding is supported by Officer Reed’s
testimony that he did not know why hospital security personnel were
involved and by defendant’s mother’s testimony that hospital
security personnel had locked the doors to the emergency treatment
area, apparently as part of the response to a family altercation in
which some people had threatened to kill defendant. No one testified
that hospital security personnel were acting at the behest of police.
Given these findings, the trial court did not clearly err in finding that
defendant was not in custody when Officer Reed interviewed her at
King, 2014 WL 1320155, * 3–4 (Mich. Ct. App. Apr. 1, 2014) (internal citations
A prosecutor may not use a defendant’s statements that stem from custodial
interrogation unless the prosecutor can demonstrate the use of procedural
safeguards that are effective to secure a defendant’s privilege against
self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Unless other
means are devised to inform a suspect of his right to silence and a “continuous
opportunity to exercise it,” the following warnings are required to be given to a
1. the person must be warned that he has a right to remain silent;
2. that any statement he does make may be used against him;
3. and that he has a right to the presence of an attorney, either
appointed or retained.
Miranda, 384 U.S. at 444.
Police officers, however, are not required to administer Miranda warnings
to every person whom they question nor are they required to administer Miranda
warnings simply because the questioning takes place in a police station or because
the questioned person is one whom the police suspect. Oregon v. Mathiason, 429
U.S. 492, 495 (1977). Instead, Miranda warnings are required “only where there
has been such a restriction on a person’s freedom as to render him ‘in custody.’ ”
Mathiason, 429 U.S. at 495. “Custody,” for purposes of Miranda, requires a
“significant deprivation of freedom.” See Mason v. Mitchell, 320 F.3d 604, 632
(6th Cir. 2003).
Two discrete inquiries are essential to determining whether a criminal
suspect was in custody at time of the interrogation, and therefore entitled to
Miranda warnings. Thompson v. Keohane, 516 U.S. 99, 112 (1995). First, the
Court must examine circumstances surrounding the interrogation. Id. Second,
given those circumstances, the Court must ask whether a reasonable person would
have felt that he or she was not at liberty to terminate the interrogation and leave.
Id. The initial determination of whether a suspect is in custody, for purposes of
Miranda, depends on the objective circumstances of the interrogation, not on the
subjective views harbored by the interrogating officer. See Stansbury v.
California, 511 U.S. 318, 323 (1994). A policeman’s unarticulated plan has no
bearing upon whether a suspect is “in custody,” so as to require Miranda
warnings. Instead, the relevant inquiry is “how a reasonable man in the suspect’s
position would have understood his situation.” See Berkemer v. McCarty, 468
U.S. 420, 442 (1984).
The Michigan Court of Appeals’ determination that Petitioner was not in
custody so as to trigger the need for Miranda warnings was a reasonable
determination of the facts and law in this case. See Peerenboom v. Yukins, 75 F.
Supp. 2d 691, 694–95 (E.D. Mich. 1999) (finding habeas claim was barred, under
AEDPA, when state court of appeals did not unreasonably apply Supreme Court
precedent in holding that a petitioner was not in custody when interviewed by
police while in hospital recovering from injuries sustained when bomb built to kill
intended victim accidentally exploded, and that her statements were not required
to be excluded for failure to give Miranda warnings).
Petitioner was at the hospital for medical treatment when questioned by
Officer Derrick Reed and Detective Sergeant Renee Yax. Reed informed
Petitioner that she “was free to leave and [she] in fact did leave the hospital,”
following the questioning.2 Id. at 4. There is no indication that the questioning
Petitioner claims that a reasonable person would not have felt free to leave the
hospital at the time of interrogation. Dkt. No. 1, p. 18 (Pg. ID 18). However, the
record reflects that Petitioner felt free enough to terminate the interview when Reed
told her she was not under arrest. The record reflects that petitioner freely left the
interview, but remained for a period of time at the hospital as a matter of hospital
took place in a context where Petitioner’s freedom to depart was so restricted that
she did not feel free to terminate the conversation and leave. Because Petitioner
was not in custody when she was at the hospital, there was no duty for the police
to advise Petitioner of her Miranda warnings, thus, the state court did not err in
refusing to exclude her statement on this basis. The admission of Petitioner’s
subsequent incriminating statements did not violate her Fifth Amendment rights.
Petitioner further claims that her statement should have been suppressed
because she invoked her right to counsel.
When an accused invokes his or her right to counsel during custodial
interrogation, that interrogation must cease until counsel is made available, unless
the accused initiates further conversation with the police. Edwards v. Arizona, 451
U.S. 477, 484–85 (1981). The rule in Edwards is considered “a corollary to
Miranda’s admonition that ‘[i]f the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.’ ” Arizona v. Roberson, 486
U.S. 675, 680 (1988) (quoting Miranda, 384 U.S. at 474). The rationale behind
Edwards is that once the accused informs law enforcement officials “he is not
capable of undergoing [custodial] questioning without advice of counsel,” “any
subsequent waiver that has come at the authorities’ behest, and not at the suspect’s
own instigation, is itself the product of the ‘inherently compelling pressures’ and
not the purely voluntary choice of the suspect.” Maryland v. Shatzer, 130 S. Ct.
1213, 1219 (2010) (quoting Roberson, 486 U.S. at 681).
A number of courts have held that the rule established in Edwards is
applicable only if a person is subjected to an interrogation while in police custody.
See Burket v. Angelone, 208 F.3d 172, 197 (4th Cir. 2000) (petitioner “could not
invoke the protections provided by Miranda,” including the right to counsel,
“because he was not ‘in custody’ at the time he stated ‘I think I need a lawyer’ ”);
United States v. Wyatt, 179 F.3d 532, 538 (7th Cir. 1999) (“The Fifth Amendment
right to counsel safeguarded by Miranda cannot be invoked when a suspect is not
in custody, even if in anticipation of future custodial interrogation.”); United
States v. Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998) (“[I]n order to implicate
the Miranda-Edwards right to counsel prophylaxis, both a custodial situation and
official interrogation are required.”); Alston v. Redman, 34 F.3d 1237, 1244 (3th
Cir. 1994) (“Miranda is not implicated” absent “both a custodial setting and
official interrogation”); Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir. 1990)
(“Where the prisoner is not in custody, the Edwards and Roberson concerns are
not triggered because the non-custodial defendant is free to refuse to answer
police questions, free to leave the police station and go home, and free to seek out
and consult a lawyer”); U.S. v. Assi, 512 F. Supp. 2d 1047, 1055 (E.D. Mich.
2007) (Rosen, J.) (finding where suspect was admittedly not under arrest during
questioning by federal agents, and agents had informed suspect that he was free to
conclude questioning at any time, interview was non-custodial, and suspect had no
right to counsel during it); United States v. Ridley, 199 F. Supp. 2d 704, 713 (S.D.
Ohio 2001) (defendant’s alleged question to FBI agent before being questioned at
the FBI offices, in which he asked agent whether he needed a lawyer, was
insufficient to invoke defendant’s right to counsel under Miranda; defendant was
not in custody); Trapani v. Stovall, No. 2006 WL 123784, *9 (E.D. Mich. January
17, 2006) (Tarnow, J.) (“Because petitioner was not subjected to custodial
interrogation in this case, the dictates of Edwards do not apply”); see also United
States v. Martin, 95 F.App’x. 169, 178, n.8 (6th Cir. 2004) (“Martin’s claim may
also fail for the additional independent reason that since Martin was not in custody
for purposes of Miranda when he made his initial phone call to his attorney,
Edwards does not apply.”).
The holdings in these cases appear to be consistent with Supreme Court
jurisprudence. In Montejo v. Louisiana, 556 U.S. 778 (2009), the Supreme Court
overruled their previous decision in Michigan v. Jackson, 475 U.S. 625 (1986),
which had forbid the police from initiating an interrogation of a criminal
defendant once he has invoked his Sixth Amendment right to counsel at an
arraignment or similar proceeding. In Montejo, the Supreme Court noted that:
The Miranda-Edwards regime is narrower than Jackson in one
respect: The former applies only in the context of custodial
interrogation. If the defendant is not in custody then those decisions
do not apply; nor do they govern other, noninterrogative types of
interactions between the defendant and the State (like pretrial
lineups). However, those uncovered situations are the least likely to
pose a risk of coerced waivers. When a defendant is not in custody,
he is in control, and need only shut his door or walk away to avoid
Id. at 795.
The Supreme Court further observed that they had “never held that a person
can invoke his Miranda rights anticipatorily, in a context other than ‘custodial
interrogation’ . . . .” Montejo, 556 U.S. at 797 (quoting McNeil, 501 U.S. at 182,
n.3). Language in other Supreme Court cases also suggests that the rule in
Edwards applies only in the context of custodial interrogation. See McNeil, 501
U.S. at 178 (The purpose of the Miranda-Edwards guarantee is narrower than the
one protected by the Sixth Amendment right to counsel because it relates only to
custodial interrogation); Minnick v. Mississippi, 498 U.S. 146, 154 (1990)
(“Edwards’ purpose [is] to protect the suspect’s right to have counsel present at
In light of the rationale behind Edwards, the fact that the Supreme Court
has suggested that Edwards does not apply to non-custodial interrogations, and the
fact that numerous courts, including the Sixth Circuit and two judges within this
district, have concluded that Edwards applies only if a person is subjected to a
custodial interrogation, Petitioner is unable to show that the Michigan Court of
Appeals’ rejection of her Edwards 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 v. Richter, 562 U.S. at 103.
The extension of Miranda and Edwards “outside of the context of custodial
interrogation, would diminish the ‘bright-line’ nature of the Supreme Court’s
Miranda jurisprudence, often cited by the Court as one of the qualities of that
body of law.” Alston, 34 F.3d at 1249, n.11.
As part of her second claim, Petitioner alleges that trial counsel was
ineffective for failing to call Dr. Julie Lata to testify at the Walker3 hearing in
support of her claim that she was in custody at the time of the police interviews.
Petitioner contends that Dr. Lata would have testified that she dictated a medical
report on Petitioner the day of LFW’s injuries demonstrating that Petitioner was in
custody on the day of the police interviews.
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,
People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965).
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 doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. First, Petitioner must overcome the presumption that,
under the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, Petitioner must show that such performance
prejudiced his or her defense. Id. To demonstrate prejudice, Petitioner must show
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. The Supreme Court’s holding in Strickland places the burden on the
petitioner 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 ‘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)).
In addition, a reviewing court must not merely give defense counsel the
benefit of the doubt, but must also affirmatively entertain the range of possible
reasons that counsel may have had for proceeding as he or she did. Cullen v.
Pinholster, 563 U.S. 170, 196 (2011).
Petitioner contends that trial counsel was ineffective by not calling Dr. Julie
Lata to testify in connection with a medical report that she dictated around the
time of the police interviews. Dkt. No. 1, p. 17 (Pg. ID 17). The Michigan Court
of Appeals rejected Petitioner’s claim finding that such testimony would have
been more damaging than helpful to Petitioner’s case as follows:
Defendant’s claim is premised on an excerpt from a report prepared
by Dr. Lata during defendant=s hospitalization. Dr. Lata’s report
states in part:
While the patient was in the emergency department, she
had multiple question and answer periods which
occurred with the medical examiner as well as the
police department regarding her stepdaughter. The
patient was becoming somewhat agitated as she was
awaiting being medically cleared and receiving these
interviews; however, per the police department, the
patient could not get [sic] leave the emergency
department until she was medically clear, and they
needed to be notified prior to her official discharge.
While the patient was waiting, she did become agitated,
and she attempted to leave and remove her IV. The
police were in the emergency department and told her
that she needed to be detained.
Dr. Lata’s report does indicate that the police told defendant that she
was being detained. However, it is not clear that was all the police
said—they might have explained that she was being detained
because she had not been medically cleared. Accordingly, the report
does not establish that defendant was being held by the police rather
than by hospital authorities. Further, Dr. Lata’s report indicates that
the police told defendant that she was being detained when
defendant was removing her IVs. Evidence at the suppression
hearing indicated that this incident occurred after defendant had
spoken to both officers and just before defendant was released from
the hospital—not when defendant was talking to Officer Reed and
before she spoke to Officer Yax. Moreover, despite Dr. Lata’s
indication that the police told defendant that she was being detained,
the trial court found that defendant “told Police Officer Reed she
was going to leave because she was not under arrest” and defendant
did in fact leave. This finding is supported by defendant’s own
testimony and thus is not clearly erroneous. Therefore, it is not
reasonably probable that had Dr. Lata testified at the suppression
hearing, the trial court would have found that defendant was in
custody. Accordingly, we reject defendant’s ineffective assistance of
King, 2014 WL 1320155, *5 (Mich. Ct. App. Apr. 1, 2014)
Petitioner has not submitted an affidavit from Dr. Julie Lata, to indicate
what this witness’s testimony would be, nor did Petitioner submit any affidavit
from Dr. Lata to the state courts. Dr. Lata’s medical report is hearsay and does not
establish that Dr. Lata would have actually testified to any facts to establish
Petitioner was in custody and not free to leave the police interviews. This
contention also contradicts Petitioner’s statement that “she was going to leave
because she was not under arrest” and the fact that Petitioner did in fact leave. Id.
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). By failing to present any evidence to the state
courts in support of her ineffective assistance claim, Petitioner is not entitled to an
evidentiary hearing on her ineffective assistance of counsel claim with this Court.
See Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002) (citing 28 U.S.C.
§ 2254(e)(2)(A)(ii)). Petitioner has not offered, either to the Michigan courts or to
this Court, any evidence beyond her own assertions as to whether Dr. Lata would
have been able to testify and what the content of this witness’s testimony would
have been. In the absence of such proof, Petitioner is unable to establish that she
was prejudiced by counsel’s failure to call Dr. Lata to testify at trial, so as to
support the second prong of an ineffective assistance of counsel claim. See Clark
v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
Petitioner admitted at the Walker4 hearing that the officers told her that she
was not under arrest, and she ultimately left. (Tr. 2/22/2012, pp. 19, 24). Dr.
Lata’s report states that Petitioner was somewhat agitated while she awaited
medical clearance to leave the emergency room. King, No. 309974, 2014 WL
1320155, *5. If called to testify, Dr. Lata’s testimony may have supported the
prosecution’s contention that Petitioner had been “detained” because she had not
been given a medical clearance by the medical staff. Petitioner has failed to show
that trial counsel’s failure to subpoena Dr. Lata was anything other than sound
trial strategy. Petitioner is not entitled to relief on her second claim.
People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965).
C. Claim # 3: The sentencing guideline claim.
Petitioner alleges that she should be resentenced because the trial court
failed to score sentencing guidelines for her CSC I and child-abuse convictions.
Dkt. No. 1, p. 18 (Pg. ID 18).
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Therefore, claims which arise out of a state trial court’s sentencing decision are
not normally cognizable on federal habeas review, unless the habeas petitioner can
show that the sentence imposed exceeded the statutory limits or is wholly
unauthorized by law. See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich.
2002). A sentence imposed within the statutory limits is not generally subject to
habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56
F. Supp. 2d 788, 797 (E.D. Mich. 1999). Petitioner’s claim that the state trial court
incorrectly scored or calculated her sentencing guidelines range under the
Michigan Sentencing Guidelines is not a cognizable claim for federal habeas
review, because it is a state law claim. See Tironi v. Birkett, 252 F. App’x. 724,
725 (6th Cir. 2007) (unpublished); Howard v. White, 76 F. App’x. 52, 53 (6th Cir.
2003) (unpublished); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich.
2006). Errors in the application of state sentencing guidelines cannot
independently support habeas relief. See Kissner v. Palmer, 826 F.3d 898, 904
(6th Cir. 2016). Petitioner had “no state-created interest in having the Michigan
Sentencing Guidelines applied rigidly in determining sentence.” See Mitchell v.
Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short, petitioner had
no federal constitutional right to be sentenced within Michigan=s guideline
minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 474, 485
(E.D. Mich. 2004). Any error by the trial court in calculating Petitioner’s
guideline score would not merit habeas relief. Id. Petitioner’s claim that the state
trial court improperly departed above the correct sentencing guidelines range
would thus not entitle her to habeas relief, because such a departure does not
violate any of the Petitioner’s federal due process rights. Austin v. Jackson, 213
F.3d 298, 301 (6th Cir. 2000). Petitioner is not entitled to habeas relief on her
The Court will deny the petition for a writ of habeas corpus. The Court will
also deny a certificate of appealability. 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 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, 483–84 (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. § 2254.
For the reasons stated in this opinion, the Court will deny Petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of Petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219
F. Supp. 2d 871, 885 (E.D. Mich. 2002).
The Court will also deny Petitioner leave to appeal in forma pauperis,
because the appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798
(E.D. Mich. 2001).
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
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
March 20, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
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