Garcia v. Burt
ORDER denying Petition for writ of Habeas Corpus; denying certificate of appealability; granting permission to appeal in forma pauperis; denying 20 Motion to stay ; denying Petitioner's motion to amend 21 ; granting 22 & 25 Motions to withdrawal as counsel; granting 23 Motion for Leave to File; denying 28 Motion for Evidentiary Hearing. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:15-cv-14018
Hon. Nancy G. Edmunds
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING CERTIFICATE OF APPEALABILITY, (3) GRANTING PERMISSION TO
APPEAL IN FORMA PAUPERIS, (4) GRANTING MOTIONS FOR WITHDRAWAL OF
ATTORNEY (Dkts. 22 and 25), (5) GRANTING MOTION TO FILE CORRECTED
BRIEF (Dkt. 23), AND (6) DENYING PETITIONER’S OTHER MOTIONS (Dkts. 20, 21,
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254.
Carlos Garcia, (“Petitioner”), was convicted after a jury trial in the Oakland Circuit Court of
five counts of first-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520b, and two
counts of second-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520c.
Petitioner was sentenced to five concurrent terms of 285 months to 50 years for the firstdegree convictions and two concurrent terms of 10 to 15 years for the second-degree
The Court understands Petitioner’s multiple pleadings to be raising the following six
claims: (1) the prosecutor committed numerous acts of misconduct, (2) the prosecutor’s
expert witness erroneously bolstered the credibility of the victim, (3) the court clerk excused
the wrong alternate juror from deliberations, (4) Petitioner’s trial counsel committed
numerous errors, depriving him of the effective assistance of trial counsel, (5) Petitioner
was deprived of the effective assistance of appellate counsel during his direct appeal, and
(6) Petitioner is actually innocent.
The Court finds that all of Petitioner’s claims are without merit. Therefore, the
petition will be denied. The Court will also deny Petitioner a certificate of appealability, but
it will grant him permission to proceed on appeal in forma pauperis.
Finally, the Court will grant Petitioner’s motions to have his counsel withdraw and
to file a corrected brief, (Dkts. 22, 23, and 25), but it will deny Petitioner’s remaining pro se
motions which seek to stay the case, amend the petition, and for an evidentiary hearing.
(Dkts. 20, 21, and 28).
The charges against Petitioner stem from allegations that he engaged in a sexual
relationship with his step-daughter when she was in middle school.
Marissa Latimer, who was fifteen years old at the time of trial, testified that she went
to school with the victim from elementary school through high school. She testified that
when the two girls were in the sixth grade she would spend time at the victim’s home.
Latimer testified that one time while she was at the victim’s home Petitioner told the girls
how big his penis was. Petitioner also showed the girls a ring he put on his penis to help
him maintain an erection. Petitioner told the girls that they were sexy, and he urged them
to wear sexier clothing.
Latimer testified that one day at school during the sixth grade, she and another girl
saw a letter taped to the victim’s locker. They took the letter off of the locker and read it.
Latimer took the letter home to her mother, and her mother called Petitioner who came over
to retrieve the letter. When Latimer’s mother gave Petitioner the letter, he passed it off as
“high school drama.”
Jennifer Hart, the victim’s mother, testified that she married Petitioner in 2004. Hart
testified that when Petitioner first became a part of the victim’s life, they had a very close
relationship. Hart worked a lot, and so Petitioner would babysit the victim and her young
Hart testified that at some point in time the victim’s biological father and Petitioner
started to communicate. She overheard a telephone conversation between the two men,
and they were saying upsetting things about her. Hart testified that the victim also
overheard the conversation.
After Petitioner stopped living with her and the girls, Hart had a conversation with
the victim in the Spring of 2007. Hart learned that Petitioner was text-messaging the
victim’s friends, which Hart though was odd. Hart asked the victim whether Petitioner had
ever done anything to her. The victim denied anything had occurred, but the next day she
told Hart that Petitioner had been sexually abusing her.
Hart testified that she did not know what to do, and the victim did not want her to tell
anyone else. Finally, in November of 2007, Hart told the information to a therapist, and then
she told the victim’s biological father in March of 2008. He flew in from California, and the
three went to the police. The victim was subsequently taken to Care House for an interview.
The Department of Human Services intervened due to Hart’s failure to immediately
report the alleged acts of sexual abuse, and the victim was moved to Hart’s mother’s
The victim testified that she was fifteen years old at the time of trial. Beginning in the
fifth grade she lived with her half-sister, mother, and Petitioner. The victim testified that
initially she had a normal father-daughter relationship with Petitioner, but that changed in
the summer before she entered sixth grade when she was eleven years old.
The victim testified that one evening that summer, she asked Petitioner to rub her
back, and that when he did so he also put his hand down the front of her pants. She felt
him put his hand on her private parts over her underwear. She immediately got up and said
she had to go to the bathroom.
The victim testified that multiple incidents of sexual abuse occurred over the
following two years. She testified that Petitioner would ask her to go into her mother’s
bedroom with him when her mother was at work. Petitioner would then touch her breasts
and vagina. He occasionally placed his fingers inside her vagina as well. He also directed
her to touch his penis.
The victim testified that at times during the sixth grade her friend Marissa Latimer
would come over to her house. Petitioner would tell them that they were “hot” and to put
on sexier clothing. One day at school during the sixth grade, the victim discovered a letter
taped to her locker that contained information about her having a relationship with
Petitioner. The victim thought Latimer wrote the note.
The victim testified that the sexual abuse continued through the seventh grade. On
one occasion, Petitioner directed her to perform oral sex on him. She also testified that on
two occasions he put his penis in her vagina. On another occasion he placed his mouth on
The victim testified that she told Petitioner she would not tell anyone else about their
sexual relationship. She explained that she was embarrassed and knew the conduct was
wrong, and she did not want anyone else to know about it. The victim indicated that
sometimes she liked the sexual contact, but other times she gave in to Petitioner because
she noticed that if she did not, Petitioner would treat her mother poorly.
Around Christmas during the eighth grade, the victim stopped allowing Petitioner to
touch her. She explained that she saw a television show that depicted the effects similar
conduct had on a girl. The victim also testified that sometime during the eighth grade she
overheard a conversation between her biological father and Petitioner where the two men
spoke about getting the girls away from their mother. The victim testified that her biological
father talked about obtaining custody over her for years, and she was not concerned by the
The victim testified that she first told her mother about Petitioner’s actions sometime
around the Spring of 2007 during the eighth grade. She did not feel comfortable talking
about what occurred, and she did not want to go to the police. The victim and her mother
did not go to the police until almost a year later, in March of 2008. The victim was also
taken to Care House where she told someone what happened with Petitioner. At the time
of trial, the victim was living with her grandmother because her mother lost custody due to
her delay in taking her daughter to the police.
Amy Allen, a forensic interviewer with Care House, testified as an expert witness for
the prosecution. She testified that she interviewed the victim on March 17, 2008, after a
referral from the police. Allen met with both of the victim’s parents before the interview.
Allen testified regarding the reasons a child or adolescent would delay reporting
sexual abuse. She testified that sometimes when the abuse starts at a young age, the child
can be uncertain that she was abused. An adolescent may determine that what had
occurred should remain secret. Allen also testified that a child may delay disclosing
because she fears she will be disbelieved, or will blame herself for what occurred.
Allen also testified that there are often conflicting emotions, since the child or
adolescent still loves the abuser, or may like the sexual contact on some level. Allen
testified that it was not unusual for the child not to resist the abuse. Allen testified that it
was not unusual after the initial disclosure for a child not to want others to find out about
Allen testified that it was not her role to determine whether the victim’s allegations
of sexual abuse were in fact true.
Based on this evidence, the jury found Petitioner guilty of the offenses indicated
above. Following sentencing, Petitioner filed a claim of appeal in the Michigan Court of
Appeals. Petitioner’s appellate counsel filed an appellate brief, raising the following two
I. Does the admission into evidence of the testimony regarding the improper
sexual comments Appellant allegedly made to Complainant and her friend
improper and deny Appellant a fair trial; did thereafter the failure to caution
the jury regarding the proper and limited use of this evidence further deny
Appellant a fair trial; did trial counsel’s failure to object to the admission of
this evidence or to insure that Appellant’s jury was properly instructed deny
him the effective assistance of counsel?
II. Was the appellant denied a fair trial by the trial court’s instruction which
impermissibly elevated the complainant’s credibility above that of other
Petitioner also filed a supplemental pro se brief, raising four additional claims: (1)
the prosecutor committed misconduct during closing arguments, (2) the prosecutor withheld
evidence that the victim accused her biological father of sexual misconduct, and the victim’s
mother accused Petitioner of also abusing his other daughter, (3) the prosecutor misstated
the evidence during closing argument, and (4) Petitioner was denied the effective
assistance of trial counsel.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an unpublished
opinion. People v. Garcia, No. 289432, 2010 WL 2431913 (Mich. Ct. App. June 17, 2010).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court,
raising the same six claims that he raised in the Michigan Court of Appeals. Petitioner also
raised an additional two claims: (1) Petitioner was denied the effective assistance of
appellate counsel for failing to properly investigate and raise an ineffective assistance of
trial counsel claim, and (2) the clerk of the court pulled juror numbers 5 and 13 to be
excused as alternates after trial, but erroneously called numbers 4 and 13 to be excused.
The Michigan Supreme Court denied the application because it was not persuaded that the
questions should be reviewed. People v. Garcia, 790 N.W.2d 399 (Mich. 2010) (Table).
Petitioner then returned to the trial court and filed a pro se motion for relief from
judgment. The motion presented five claims: (1) the prosecutor committed misconduct and
failed to call all res gestae witnesses, (2) the trial court erred in refusing to provide the
deliberating jury with a written copy of the Care House interview, (3) Petitioner’s
confrontation rights were violated by evidence of the contents of the letter posted on the
victim’s locker, (4) Petitioner was denied the effective assistance of counsel when his trial
attorney failed to subject the prosecutor’s case to meaningful adversarial testing, and (5)
Petitioner’s counsel was ineffective for attempting to convince a witness of Petitioner’s guilt,
failed to obtain discovery materials, failed to raise a meritorious defense, and for
abandoning Petitioner during his direct appeal.
The trial court denied the motion for relief from judgment, finding that Petitioner
either raised the claims on direct appeal or because Petitioner failed to show good cause
to excuse his failure to previously raise his claims and actual prejudice as required by
Michigan Court Rule 6.508(D)(3). See Dkt. 10-13.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals, raising the same claims. The Michigan Court of Appeals granted leave to appeal.
People v. Garcia, No. 309081 (Mich. Ct. App. Nov. 26, 2012). The Court subsequently
denied relief in an unpublished opinion that addressed Petitioner’s post-conviction claims
on the merits. People v. Garcia, 2014 WL 1267269 (Mich. Ct. App. Mar. 27, 2014).
Petitioner applied for leave to appeal this decision in the Michigan Supreme Court,
but the application was again denied by standard order. People v. Garcia, 854 N.W.2d 738
(Mich. 2014) (Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section unless the state court adjudication
was “contrary to” or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule
that contradicts the governing law set forth in [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 [this] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court
to ‘grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court 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. “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); see also Woods v. Etherton, No. 15-723, 2016 WL 1278478, at *3 (U.S.
Apr. 4, 2016) (habeas relief precluded if state court decision is “not beyond the realm of
possibility [from what] a fairminded jurist could conclude.”)
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,
562 U.S. at 103.
A. Procedural Default
Respondent contends that several of Petitioner’s claims are procedurally defaulted
either because the errors were not preserved in the trial court, not presented on direct
appeal, or not presented to the Michigan Supreme Court. Under the procedural default
doctrine, a federal habeas court will not review a question of federal law if a state court’s
decision rests on a substantive or procedural state law ground that is independent of the
federal question and is adequate to support the judgment. See Coleman v. Thompson, 501
U.S. 722, 729 (1991). However, procedural default is not a jurisdictional bar to review of
a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally,
“federal courts are not required to address a procedural-default issue before deciding
against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir. 2003)
(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the
habeas court to simply review the merits of the petitioner’s claims, “for example, if it were
easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.” Lambrix, 520 U.S. at 525. In the present case, the Court
deems it more efficient to proceed directly to the merits, especially because Petitioner
alleges that his attorneys were ineffective for failing to preserve the defaulted claims, and
because he alleges that evidence of his actual innocence excuses his defaults.
B. Prosecutorial Misconduct
Petitioner asserts that the conduct of the prosecutor rendered his trial fundamentally
unfair. He first asserts that the prosecutor vouched for and bolstered its witnesses’
credibility during closing arguments by referring to the fact that they had taken an oath to
testify truthfully. Petitioner also asserts that the prosecutor withheld exculpatory evidence
by not disclosing court documents related to a custody battle between the victim’s mother
and her biological father. He asserts that the victim suggested that her biological father was
aggressive and behaved inappropriately towards her in that proceeding, and the
information could have been used to attack her credibility. He also asserts that the victim
and her mother made complaints to the Department of Human Services and Child
Protective Services that Petitioner had abused his two sisters, a cousin, and his younger
daughter, but that the allegations were not pursued by those agencies. Finally, Petitioner
asserts that the prosecutor misstated facts by arguing that the custody battle between the
victim’s mother and biological father had been settled, and that the victim came forward
after Petitioner had been permanently removed from her home.
1. Prosecutor Bolstering Credibility of Witnesses
Petitioner first asserts that the prosecutor improperly bolstered the credibility of the
prosecution witnesses by repeatedly referring to the fact that they took an oath to provide
The Supreme Court has made clear that prosecutors must “refrain from improper
methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S.
78, 88 (1935). To prevail on a claim of prosecutorial misconduct, however, a habeas
petitioner must demonstrate that the prosecutor's conduct or remarks “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168,
181 (1986) (citing Donnelly); Parker v. Matthews, 567 U.S. 37, 45 (2012) (confirming that
Donnelly/Darden is the proper standard).
After reciting the applicable constitutional standard, the Michigan Court of Appeals
rejected this claim on the merits during Petitioner’s appeal or right as follows:
Defendant first argues that the prosecutor improperly vouched for the
victim when she argued that the victim
gets to talk to you because she’s under oath and she tells you
she’s going to tell the truth about other embarrassing, how did
she characterize it, embarrassing, gross things. She talks to
you about, because she has to tell the truth when I ask it, why
did you follow [defendant] upstairs?
In making these comments, the prosecutor did not assert that she
possessed independent knowledge that the victim was being truthful and did
not personally vouch for the victim’s credibility. The prosecutor did not place
the prestige of her office behind the victim. Rather, the prosecutor was fairly
responding to the defense. Viewing the prosecutor’s arguments as a whole,
she was responding to defendant’s argument that the victim fabricated the
abuse by pointing out that the victim had not gained anything by coming
forward with the sexual abuse. Instead, the victim was compelled to
testify-because she was under oath at trial and subject to questioning-about
uncomfortable, embarrassing, and intimate details regarding the abuse.
Further, the prosecutor permissibly argued that the jury should
conclude that the victim was credible-not based on the prosecutor’s own,
independent knowledge, but because of the evidence and common sense.
“[A] prosecutor may comment on his own witnesses’ credibility during closing
argument, especially when there is conflicting evidence and the question of
the defendant’s guilt depends on which witnesses the jury believes.” Thomas,
260 Mich. App. at 455.
Defendant has not established the existence of any plain error in the
prosecutor's arguments; therefore, he cannot prevail on appeal. Callon, 256
Mich. App. at 329. Further, defendant has failed to establish that a curative
instruction could not have alleviated any possible prejudicial effect of the
challenged comment. Id. at 329-330. In fact, the trial court instructed the jury
that the lawyers’ arguments were not evidence, that the jury had to decide
the case based on the evidence, and that it was the jury’s role to determine
whether a witness was credible, considering a variety of factors such as a
witness’s motivation to tell the truth. The jury is presumed to follow its
instructions. People v. Graves, 458 Mich. 476, 486( 1998). Finally, because
the comment was proper, defense counsel cannot be deemed ineffective for
failing to raise an objection to it. Snider, 239 Mich. App. at 425.
Garcia, 2010 WL 2431913, at *3.
This decision was reasonable. Improper vouching occurs either (1) “when a
prosecutor supports the credibility of a witness by indicating a personal belief in the
witness’s credibility thereby placing the prestige of the [prosecutor's office] behind that
witness,” or (2) through “comments that imply that the prosecutor has special knowledge
of facts not in front of the jury.” United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999);
Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008). As the state appellate court correctly
noted, the prosecutor here neither indicated a personal belief in Petitioner’s guilt, nor did
she imply special knowledge hidden from the jury. Stating that testimony was given under
oath does not indicate a personal belief in a witness’s veracity. See Johnson v.
Romanowski, 2008 U.S. Dist. LEXIS 13235 (E.D. Mich. Feb. 21, 2008).
Moreover, as the state court noted, Petitioner’s counsel attacked the credibility of
the victim during his closing argument by arguing that she fabricated the charges. The
prosecution “necessarily has wide latitude during closing argument to respond to the
defense’s strategies, evidence and arguments." Bedford v. Collins, 567 F.3d 225, 233 (6th
Cir. 2009). This claim was reasonably rejected by the state courts in light of the broad
constitutional standard enunciated by the Supreme Court.
2. Withholding Exculpatory Evidence
Petitioner next asserts that the prosecutor failed to disclose evidence to the defense.
Specifically, Petitioner asserts that at the time of trial there was a custody battle between
the victim’s mother and her biological father, and that documents in that litigation indicate
that the victim or her mother asserted–falsely–that the biological father was aggressive and
behaved inappropriately. Petitioner also asserts that the victim and her mother made
complaints to the Department of Human Services and Child Protective Services that
Petitioner had abused his two sisters, a cousin, and his younger daughter, but that these
allegations were not deemed credibly enough to be pursued by those agencies.
This allegation was also rejected by the Michigan Court of Appeals during
Petitioner’s direct appeal:
Next, defendant asserts that the prosecutor violated Brady v.
Maryland, 373 U.S. 83, 87 (1963), in failing to disclose several items of
evidence and investigate certain individuals.
A criminal defendant has a due process right to obtain
exculpatory evidence possessed by the prosecutor if it would
raise a reasonable doubt about the defendant's guilt. In order
to establish a Brady violation, a defendant must prove: (1) that
the state possessed evidence favorable to the defendant; (2)
that the defendant did not possess the evidence nor could the
defendant have obtained it with any reasonable diligence; (3)
that the prosecution suppressed the favorable evidence; and
(4) that had the evidence been disclosed to the defense, a
reasonable probability exists that the outcome of the
proceedings would have been different. [People v. Cox, 268
Mich. App. 440, 448 (2005) (internal citations omitted).]
Defendant argues that the prosecutor withheld exculpatory evidence
by failing to call the victim’s biological father to testify at trial. We conclude
that defendant has failed to establish a Brady violation by the prosecutor. A
Brady violation occurs when the prosecutor withholds favorable evidence
from the defense. Id. at 448. The biological father was listed as a witness for
the prosecution, defendant acknowledges that he knew of this witness and
that the witness was present during trial, and there is no indication that the
prosecutor withheld his identity or any favorable evidence. Additionally,
defendant has offered no record support that this witness would have
provided favorable or exculpatory testimony for defendant. Id. Finally,
defendant has not established that he did not possess the evidence or could
not have obtained it with reasonable diligence. Id.
Defendant next claims that the prosecutor was aware that the victim
and her mother accused defendant of sexually abusing other females.
Defendant cites a child protective services intake report dated March 18,
2008, and a petition in child protection proceedings. These documents are
not contained in the lower court file. A party cannot expand the record on
appeal, and this information may therefore not be considered. People v.
Powell, 235 Mich. App. 557, 561 n 4 (1999). Moreover, defendant does not
allege that the prosecutor failed to disclose this information to defendant;
rather, he argues that the prosecutor withheld this evidence from the jury.
Such a claim does not establish a Brady violation. Cox, 268 Mich. App. at
448. Defendant does not allege that the prosecutor withheld these
documents or the related information from him before trial. Defendant’s brief
acknowledges that he was aware of the information. Defense counsel
requested that she be allowed to use information from the neglect case when
cross-examining Hart, and the prosecutor indicated that hundreds of pages
of discovery were provided to counsel regarding the neglect case. Moreover,
during cross-examination of Hart, defense counsel referred to the petition.
Defendant has failed to establish that the prosecutor failed to disclose the
other alleged accusations to defendant or that defendant did not have the
Although evidence that the victim and her mother made false
accusations that defendant sexually abused other individuals would
constitute favorable evidence because it could impeach the victim's and the
mother's credibility, see People v. Lester, 232 Mich. App. 262, 281-282
(1998), relief is not warranted here, given that defendant failed to show that
the prosecutor withheld this information and given that the record supports
that defendant was in fact aware of the other accusations and had the
petition from the neglect case.
Defendant also asserts that the prosecutor withheld from the jury the
victim’s letter to a court in California about her biological father. Defendant
asserts that the letter contained claims of sexual abuse against her father.
Again, defendant argues that the prosecutor withheld the letter from the jury;
defendant makes no claim that the prosecutor withheld the evidence from
defendant, and a Brady violation requires that the evidence be withheld from
the defendant. Id. Further, the record indicates that defendant knew of the
letter and thus could have attempted to present it himself at trial. Id. In fact,
defense counsel elicited the existence of this letter during cross-examination
of the victim. Defendant has failed to prove that he did not possess the letter
or that the prosecutor withheld this evidence, given that defense counsel
specifically questioned the victim about the letter.
Garcia, 2010 WL 2431913, at 5.
This decision did not constitute an unreasonable application of the controlling
Supreme Court standard. The state court rejected the allegations of misconduct by finding
that Petitioner failed to demonstrate that the items were actually suppressed by the
prosecution. The court found that the record demonstrated that Petitioner had actual
knowledge of the material. In considering federal habeas petitions, this Court must presume
the correctness of state court factual determinations, and a habeas petitioner may rebut
this presumption only with clear and convincing evidence. Bailey v. Mitchell, 271 F. 3d 652,
656 (6th Cir. 2001); 28 U.S.C. § 2254(e)(1). A finding by a state court that evidence was
not, in fact, suppressed is subject to this presumption of correctness. Summers v. Dretke,
431 F.3d 861, 879 (5th Cir. 2005); Wisehart v. Davis, 408 F.3d 321, 324 (7th Cir. 2005).
Petitioner offers no reason why the presumption of correctness should not apply
here. Indeed, as noted by the state court, the trial record shows that defense counsel made
use of the victim’s statement to Allen, made reference to the accusatory letter written by
the victim to her biological father, and had been provided the state court record in relation
to the neglect case. The victim’s biological father was actually physically present at trial.
Furthermore, in order to establish a Brady claim, the petitioner must show among
other things that the evidence allegedly suppressed by the prosecution was not otherwise
known to the petitioner and was not available from another source. See Carter v. Bell, 218
F.3d 581, 601 (6th Cir. 2000). All of the referenced materials were either actually known
by Petitioner or were available from another source. This claim was reasonably rejected
by the Michigan Court of Appeals.
3. Misstating Facts
Petitioner asserts that the prosecutor improperly misstated the evidence presented
at trial. Specifically, he asserts that the prosecutor argued without evidentiary support that
the custody battle between the victim’s mother and biological father had been settled, and
that the victim came forward only after Petitioner had been permanently removed from her
This allegation was also rejected on the merits by the Michigan Court of Appeals:
Defendant further asserts that the prosecutor committed misconduct
by arguing facts that were not placed in evidence. Prosecutors “may not
argue the effect of testimony that was not entered into evidence at trial.”
People v. Stanaway, 446 Mich. 643, 686 (1994).
Defendant first argues that the prosecutor committed misconduct in
arguing that the custody dispute between the victim’s mother and the victim’s
biological father was “taken care of” and that there was no evidence of a
custody dispute between the mother and defendant. We conclude that, when
they are viewed in the context of her whole argument and defendant’s
defense, the prosecutor’s arguments were permissible based on reasonable
inferences from the evidence. Bahoda, 448 Mich. at 282. The prosecutor was
responding to defendant’s assertions that the victim fabricated the allegations
because she did not like her father and defendant was trying to help him
obtain custody of the victim, and that the victim’s mother planted the
allegations in the victim’s mind because of these custody issues. The
prosecutor’s argument that the custody issue was not increasing and was
“handled” was essentially an assertion that the custody issue with the victim’s
father was nothing new or concerning and would not be an adequate
motivation for the victim to lie. This argument was based on record evidence
that the victim was in her mother’s custody at the time, both the mother and
the victim indicated that the custody issue was “nothing new,” the victim was
not worried about custody being transferred to her father, and both the
mother and the victim denied that they fabricated the sexual abuse
allegations because of the custody issue. The prosecutor's argument was a
permissible response to defendant’ theory of the case. Fields, 450 Mich. at
115; Duncan, 402 Mich. at 16.
Defendant next contends that the prosecutor argued facts not in
evidence when she stated that the victim came forward with the report of
abuse because she felt safe after defendant left the home. Although the
prosecutor’s argument was not directly supported by the victim’s testimony,
we conclude that the prosecutor’s argument was nonetheless based on
reasonable inferences drawn from the evidence. Bahoda, 448 Mich. at 282.
The prosecutor inferred that, based on the fact that the victim did not disclose
the abuse until defendant had permanently left the home, the victim
purposely waited to disclose until he was gone. This was a reasonable
inference based on the timing of the disclosure and the victim’s testimony
that defendant would “get meaner” and treat her mother poorly when the
victim avoided the sexual encounters.
Garcia, 2010 WL 2431913, at *6-7.
This decision was reasonable. “It is improper for a prosecutor, during closing
arguments, to bring to the attention of the jury any ‘purported facts that are not in evidence
and are prejudicial’” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (citing United States
v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). Nonetheless, “prosecutors ‘must be given
leeway to argue reasonable inferences from the evidence.’” Id. (citing United States v.
Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)). All of the complained-of remarks stemmed
from reasonable inferences based on the testimony of the victim or her mother.
The victim testified that her biological father wanted custody over her since she was
born. She testified that she was not worried about the conversation she heard Petitioner
have with her biological father because the topic was nothing new to her. Dkt. 10-5, at 156.
She testified that she was not afraid her biological father would obtain custody over her. Id.,
at 139. The victim’s mother testified that the victim’s biological father once had a court
order for visitations, but the visits stopped when the victim was about thirteen years old. Id.,
at 31. The reference by the prosecutor that the custody dispute was “settled” could be
reasonably seen as a reference to the fact that nothing new occurred at the time Petitioner
disclosed the abuse with respect to a custody battle that would give rise to a new
motivation to falsely accuse Petitioner of abuse. The argument was based on reasonable
inferences from the testimony of the victim and her mother.
With respect to the victim coming forward once Petitioner was out of the house, the
victim testified that when she had disclosed the abuse to her mother, Petitioner was no
longer living with them and had been out of the home for awhile. Id., at 100, 161-62. The
victim testified that after she revealed the abuse, she did not see Petitioner again until court
proceedings. Id., at 111. The victim also testified that when Petitioner was living in the
home she sometimes acquiesced to his demands because he would mistreat her mother
when she did not. Id., at 96. A reasonable inference from these portions of the victim’s
testimony is that a part of the reason she came forward was because Petitioner was no
longer in a position to treat her mother poorly. Accordingly, the prosecutor’s arguments
were fairy based on the testimony of the victim and her mother, or reasonable inferences
therefrom. To the extent Petitioner makes additional allegations of misconduct, they are
likewise unsupported by the record and involve matters either taken out of context or
Accordingly, none of Petitioner’s allegations of prosecutorial misconduct warrant
C. Expert Witness Bolstering Victim’s Credibility
Petitioner next asserts that the prosecutor’s expert witness, Amy Allen, improperly
bolstered the credibility of the victim. He argues Allen improperly testified that she
interviewed the victim only after Child Protective Services had “substantiated” that the
victim had been assaulted.
Evidentiary error “cannot rise to the level of due process violations unless [it] ‘offends
some principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting
Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). “Whether the admission of prejudicial
It is unclear whether Petitioner still asserts that it was error for the prosecutor to
present evidence regarding the note taped to the victim’s locker. Petitioner asserted in
the state courts that the evidence constituted inadmissible hearsay. As the Michigan
Court of Appeals correctly noted, however, the note was not offered for the truth of the
matter asserted but to show Petitioner’s reaction to the allegations. See Garcia, 2014
WL 1267269, at *3.
evidence constitutes a denial of fundamental fairness turns upon whether the evidence is
material in the sense of a crucial, critical, highly significant factor.” Brown v. O’Dea, 227
F.3d 642, 645 (6th Cir. 2000).
Allen testified when she was being qualified as an expert witness that Care House
accepted referrals “when protective services had substantiated their case, meaning they
had at least substantiated that that child had been sexually assaulted.” Dkt. 10-5, at 174.
But on cross-examination, Allen readily conceded that she did not determine whether the
victim was actually assaulted. She testified, “I wouldn’t necessarily know whether or not a
child was telling the truth. That’s not my job to determine that.” Id., at 206. When asked if
Allen knew whether children were being truthful during the interview, she replied “no.” Id.,
at 208. Even the prosecutor on re-direct elicited testimony from Allen that it was not her job
to determine whether the allegations were true. Id., at 208-09.
It would have been unsurprising to the jury that some governmental agencies
thought the victim’s allegations were “substantiated” enough to warrant criminal charges.
If not, charges obviously would never have been made and no trial would have occurred.
The danger of unfair prejudice would have been testimony that an agency had hidden
evidence not presented at trial that indicated Petitioner’s guilt or “substantiated” the victim’s
claim. Allen dispelled any such potential for unfair prejudice when she repeatedly testified
that it was not her role to determine whether the victim’s allegations were true. In light of
her testimony on cross examination and redirect examination, Allen’s testimony that Care
House obtained referrals of “substantiated” allegations did not render Petitioner’s trial
fundamentally unfair in violation of due process. The claim does not provide a basis for
granting habeas relief.
D. Jury Tampering
Petitioner asserts that his Sixth Amendment right to a jury trial was violated when
the trial court clerk drew numbers indicating that Jurors 5 and 13 would be removed as
alternates prior to deliberations, but then she called Jurors 4 and 13 to be removed.
First, the claim is belied by the record. The record indicates that the clerk drew and
excused Jurors 4 and 13 prior to deliberations. See Dkt. 10-6, at 75. When the jury was
polled after reaching its verdict, the record indicates there were no jurors sitting in seats 4
or 13. See Dkt. 10-7, at 7-8.
Even if the factual basis for the claim was true, the claim would fail because
Petitioner fails to demonstrate prejudice. In United States v. Levesque, 681 F.2d 75, 81 (1st
Cir. 1982), the First Circuit held that converting the wrong alternate juror into a regular juror
and allowing that alternate juror to deliberate did not violate the substantial rights of the
defendant. In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court held that
the presence of alternate jurors while the main jury was deliberating was plain error, but
that the defendant had not carried his burden of showing prejudice that adversely affected
the outcome of the proceeding. Petitioner cites no cases standing for the proposition that
a mistake in the selection of alternate jurors is a structural error requiring reversal without
requiring a demonstration of actual prejudice. Petitioner has not attempted to make such
a showing.2 Accordingly, this claim does not provide a basis for granting habeas relief.
Ironically, Petitioner asserts that Juror 4 was someone who he tried to remove for
cause prior to trial. See Supplemental Brief, Dkt. 14, at 52.
E. Ineffective Assistance of Trial Counsel
Petitioner raises multiple claims of ineffective assistance of trial counsel. He first
alleges that his trial attorney failed to interview and call several defense witnesses related
to him that would have undermined the victim and her mother’s credibility, and he failed to
call a defense expert to counter the testimony of Amy Allen. Petitioner also asserts his
counsel failed to object at trial to the prosecutor’s improper bolstering arguments, the
improper admission of sexual comments made by Petitioner to the victim and her friend,
and the improper jury instructions that elevated the victim’s credibility.
Ineffective-assistance claims are reviewed under the two-part test of Strickland v.
Washington, 466 U.S. 668 (1984). Strickland requires a defendant to show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense such
that the defendant was denied a fair trial. Id. at 687. Counsel is “strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 690. The test for prejudice is whether “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In habeas review, the question becomes
“not whether counsel's actions were reasonable,” but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter,
562 U.S. 86, 105 (2011).
1. Failure to Call Defense Witnesses
Petitioner first asserts that his trial counsel was ineffective for failing to interview and
call several witnesses in his defense at trial. This claim was adjudicated on the merits by
the Michigan Court of Appeals during Petitioner’s post-conviction review proceeding. After
reciting the correct constitutional standard, the state appellate court denied the claim as
Defendant attached three affidavits to his application for leave to
appeal, detailing what witnesses would have testified if called at trial. James
J. Super and Sudie Lee Super stated in their affidavits that, in March 2007,
they were at the home of the victim's mother, defendant stated that he
intended to move out of the home, and the victim begged him not to leave her
with her drunken mother. First, it should be noted that Ms. Super was called
as a witness to make an offer of proof outside the jury’s hearing and testified
that the victim’s mother telephoned Ms. Super, said that she was the only one
who could save defendant, and asked to have defendant call her. No
questions were asked of Ms. Super regarding the victim’s statements to her,
her husband, or defendant about not wanting defendant to leave the victim
with her mother. Defendant has not established that defense counsel knew of
the conversation detailed in the affidavits.
Defense counsel’s theory at trial was that the victim was lying about the
sexual abuse because she was angry with defendant after she overheard
defendant talking to her biological father about custody, that the victim
admitted to lying before and changed her testimony several times, and that
the victim had lied to the court in the past so that she did not have to visit her
biological father. Mr. and Ms. Super’s testimony that the victim wanted to stay
with defendant and not her mother conflicted with the defense theory that the
victim lied to stay with her mother (over her biological father) and did not
deprive defendant of a substantial defense. It would seem odd that a child
would want to stay with someone who was sexually abusing them, but the
victim testified that she sometimes liked the sexual activity with defendant,
that she loved defendant and looked up to him, and that they had a
father-daughter relationship. Ms. Allen, the expert on sexual abuse, testified
that children who are sexually abused sometimes still love their abusers.
Because testimony that the victim loved defendant was consistent with the
statements of Mr. and Ms. Super regarding the victim wanting to stay with
defendant, the defense did not prove that the victim was lying about anything
or present an inconsistency. Therefore, defendant was not deprived of a
substantial defense and was not prejudiced by trial counsel’s decision not to
call Mr. and Ms. Super as witnesses. See Dixon, 263 Mich. App. at 398.
Next, defendant raised the issue of trial counsel’s failure to call his
brother as an alibi witness. James A. Super stated in his affidavit that
defendant lived at his home from August 18, 2005 to January 5, 2006, that he
informed trial counsel of this fact, and that counsel indicated his testimony
was not necessary because he could not provide exact dates. James A.
Super also stated that he was present when defendant received a phone call
from the victim’s mother in March 2007, telling defendant she was going to
accuse him of this abuse. However, under defense counsel’s questioning, the
victim and her mother testified that defendant did not stay at their house
throughout the entire period in question, and therefore defendant was not
deprived of a substantial defense because of counsel's failure to call his
brother as an alibi witness.
Defendant also argues that trial counsel was ineffective for failing to
investigate and present lay witnesses Wendy Garcia, Jennifer Knecht, and
Thomas Jaworski. Wendy Garcia and Jennifer Knecht, defendant’s sisters,
state that they would have testified that the victim’s mother had a poor
reputation in the community for truthfulness and was known as a liar and a
drunkard, and that they believed that the allegations were fabricated by the
mother to help her in her custody dispute with defendant. Neither was
interviewed by trial counsel. Thomas Jaworski, defendant’s long time friend
who met with trial counsel, would have testified that the victim’s mother had
a poor reputation for truthfulness, that she accused him of attempted sexual
assault when they were both 17, and that he believed she made up the
allegations to help her in the custody dispute with defendant.
Although the mother’s reputation for truthfulness would have been
admissible under MRE 608(a), specific instances of conduct would not have
been admissible. MRE 608(b). Further, the lay witnesses’ belief that she made
up the allegations to assist her in a custody dispute would not have been
admissible. Finally, trial counsel made a strategic decision to argue that the
victim made up the allegations and not her mother. There was ample
evidence to support trial counsel’s decision and defendant was not deprived
of a substantial defense.
Defendant also argues that the decision not to present these witnesses
was not a strategic decision but was instead born out of trial counsel’s failure
to investigate the case properly. Counsel’s failure to reasonably investigate
a case can constitute ineffective assistance of counsel. People v. McGhee,
268 Mich. App. 600, 626 (2005). Failure to investigate witnesses does not,
however, establish inadequate preparation unless the defendant can show
that the failure to investigate resulted in a failure to find valuable evidence that
would have substantially benefitted the defendant. People v. Caballero, 184
Mich. App. 636, 642 (1990). Here, none of the affidavits presented valuable
evidence that would have substantially benefitted defendant. Therefore, trial
counsel was not ineffective for failing to investigate or present lay witnesses.
Defendant argues that trial counsel was ineffective for failing to hire Dr.
Okla, who would have testified as an expert witness that the victim's testimony
was unreliable and questionable due to suggestibility and adolescent brain
development. The failure to consult with Dr. Okla was not raised in
defendant's application for leave to appeal, and defendant has not provided
an affidavit or other offer of proof from Dr. Okla regarding her proposed
testimony. Therefore, this argument is beyond the scope of this Court's grant
of leave to appeal.
Garcia, 2014 WL 1267269, at *7-9.
The detailed fact-sensitive analysis by the state appellate court did not constitute an
objectively unreasonable application of the Strickland standard. The court recited the
factual support Petitioner presented with each allegation of ineffective assistance of
counsel, and then it made a reasoned decision applying the Strickland framework
explaining why Petitioner’s counsel did not perform deficiently or why Petitioner was not
prejudiced by his counsel’s decision not to call each of the defense witnesses for which
Petitioner provided an offer of proof.
As for the three witnesses for which Petitioner provided affidavits to the state court,
while Petitioner provides several reasons allegedly undercutting counsel’s actions and
undercutting the state appellate court’s analysis, he has not shown that the decision of the
state courts was objectively unreasonable. “Strategic choices by counsel, while not
necessarily those a federal judge in hindsight might make, do not rise to the level of a Sixth
Amendment violation.” McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir. 2000).
The affidavits of Petitioner’s mother and father indicate that they heard the victim say
on one occasion that she did not want Petitioner to leave her with her drunken mother. As
the state appellate court noted, the presentation of this testimony would have been at odds
with Petitioner’s theory of defense that the victim falsely accused Petitioner so that she
could stay with her mother. This conflict between the uncalled witnesses and the defense
theory provided a reasonable basis for the state court to reject Petitioner’s claim.
The affidavit of Petitioner’s brother indicated that Petitioner stayed with him for a
period of months when the abuse was alleged to have occurred. But as the Michigan Court
of Appeals noted, he was unable to provide defense counsel with exact dates. In any event,
the victim did not testify to exact dates for the incidents of sexual assault. Under these
circumstances it was reasonable for the state appellate court to conclude that an alibi
defense was not viable, and Petitioner’s counsel did not perform deficiently by failing to
raise one. As for the allegation that the victim’s mother told Petitioner’s mother that she was
going to accuse Petitioner of sexual assault, that is not a surprising fact given the victim’s
disclosure to her mother. There is no allegation that the mother said she was going to
falsely accuse Petitioner.
With respect to the failure to call witnesses for which Petitioner did not present an
offer of proof to the state court, “[i]t should go without saying that the absence of evidence
cannot overcome the ‘strong presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)(quoting
Strickland, 466 U.S. at 689). The Michigan Court of Appeals nevertheless addressed each
of the other witnesses’ proposed testimony and indicated that Petitioner’s claims were
meritless. It was reasonable for the state court to find that the proposed testimony of
Petitioner’s sisters and friend that they believed the victim and her mother fabricated the
accusations would have been inadmissible. Moreover, while these witnesses may have
testified that the victim’s mother had a reputation for dishonesty, it was reasonable to
conclude that Petitioner did not suffer Strickland prejudice as it was the defense theory that
the victim herself was being untruthful, and these witnesses did not propose to testify as
to her reputation in the community for honesty. Finally, with respect to Dr. Okla, as the
Michigan Court of Appeals reasonably found, Petitioner presented no offer of proof as to
her testimony or even her willingness to testify. The state court reasonably rejected that
allegation on that basis alone. Burt, 134 S.Ct. at 17.
2. Failure to Object to Prosecutorial Misconduct
Petitioner asserts that his trial counsel was ineffective for failing to object to the
alleged instances of prosecutorial misconduct discussed above. Because Petitioner’s
prosecutorial misconduct claims lack merit, any objection made by his attorney would have
been futile. Counsel’s failure to make a frivolous or meritless motion does not constitute
ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir.
2010); O’Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007). This allegation is therefore
3. Failure to Object to Admission of Sexual Comments Made by Petitioner
Petitioner next asserts that his trial attorney was ineffective for failing to object to the
testimony of Latimer and the victim about inappropriate sexual comments he made to them,
such as the size of his penis, that they were sexy, and that they should were sexy clothing.
During Petitioner’s direct appeal, the Michigan Court of Appeals first addressed the
evidentiary predicate of the claim and found that as a matter of Michigan law the testimony
was admissible. The state court then concluded that Petitioner’s counsel was not ineffective
for failing to make a meritless objection:
Defendant first argues that error occurred with respect to the
admission of testimony regarding defendant’s sex-related statements to the
victim and her girlfriend. We review the trial court’s decision to admit
evidence for an abuse of discretion. People v. Watson, 245 Mich. App. 572,
575, 289 (2001).
We conclude that there was no error in the admission of defendant’s
sex-related statements to the victim and her girlfriend. Although defendant
argues that the statements were inadmissible other-acts evidence under
MRE 404(b), these statements were not governed by MRE 404(b). People
v. Goddard, 429 Mich. 505, 514-515 (1988). “[A] prior statement does not
constitute a prior bad act coming under MRE 404(b) because it is just that,
a prior statement and not a prior bad act.” People v. Rushlow, 179 Mich. App.
172, 174 (1989), aff’d 437 Mich. 149 (1991); see also Goddard, 429 Mich. at
518. Moreover, the statements were relevant because they tended to show
that defendant’s touching of the victim was done for a sexual purpose. See
MCL 750.520a(q) (defining “sexual contact”); see also MRE 401 (defining
“relevant evidence”). The statements were directed at the victim and her
friend, occurred around the same time as the abuse, and showed that
defendant thought of the victim in a sexual manner. The fact that the victim’s
testimony was corroborated by her friend’s testimony regarding the
statements was also relevant to support the victim's credibility, which was a
hotly contested issue at trial.
Moreover, the probative value of the evidence was not substantially
outweighed by the danger of any unfair prejudice. People v. Mills, 450 Mich.
61, 75 (1995), mod on other grounds 450 Mich. 1212 (1995); MRE 403.
Indeed, the challenged evidence was more than marginally probative
because, as discussed, it was relevant in terms of proving sexual purpose
and corroborating the victim's testimony. See, generally, People v. Ortiz, 249
Mich. App. 297, 306 (2001).
Further, there was no error in failing to give an other-acts evidence
limiting instruction because this instruction was inapplicable, it was not
requested, and defense counsel approved of the instructions as given.
Additionally, because it would have been futile to request this instruction,
defense counsel did not render ineffective assistance in failing to request it.
Counsel was not required to raise meritless objections or make meritless
arguments. People v. Snider, 239 Mich. App. 393, 425 (2000).
Garcia, 2010 WL 2431913, at *1.
This decision was reasonable. In analyzing a petitioner’s ineffective assistance of
counsel claim, an expression of state law by a state court is binding on this Court. See
generally, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This Court cannot second-guess
the state court’s determination that the challenged testimony was admissible, and
therefore, that any objection by counsel would have been futile. Counsel cannot be deemed
ineffective for failing to raise a meritless objection. See Bradley v. Birkett, 192 Fed. App’x.
468, 475 (6th Cir. 2006). This allegation is devoid of merit.
4. Failure to Object to Improper Jury Instructions Regarding Victim’s Credibility
Finally, Petitioner asserts that his counsel was ineffective for failing to object to the
portion of the jury instructions concerning the evaluation of the victim’s credibility. Again,
this claim was addressed and rejected by the Michigan Court of Appeals during Petitioner’s
direct appeal on the merits:
Next, defendant asserts that he was denied a fair trial by the trial
court’s instruction that the jury could convict defendant based on the victim’s
testimony alone, if the testimony established guilt beyond a reasonable
doubt. The record reflects that counsel agreed to the giving of the challenged
instruction and approved of the trial court’s instructions after they were read.
Defendant has, therefore, waived any allegation that the challenged
instruction was erroneous, because he affirmatively approved of the
instruction as given at trial. People v. Carter, 462 Mich. 206, 214-215 (2000);
People v. Lueth, 253 Mich. App. 670, 688 (2002).
Nonetheless, the challenged instruction complied with the law and did
not unfairly bolster the victim’s credibility. MCL 750.520h provides that “[t]he
testimony of a victim need not be corroborated in prosecutions under
sections 520b to 520g.” The standard jury instruction, CJI2d 20.25, correctly
provides: “[t]o prove this charge, it is not necessary that there be evidence
other than the testimony of [name complainant ], if that testimony proves guilt
beyond a reasonable doubt.” See People v. Smith, 149 Mich. App. 189, 195
(1986) (finding no error in giving the predecessor of the standard instruction
“which accurately states the law as provided in MCL 750.520h”). The
instruction did not relieve the prosecutor of the burden of proof beyond a
reasonable doubt or remove an element from the jury’s consideration.
Defendant’s reliance on the nonbinding case of People v. Gammage, 2 Cal.
4th 693; 828 P.2d 682, 684, 687 (1992), is unavailing because in that case,
the California Supreme Court held that it was proper to give instructions that
one witness’s testimony was sufficient to prove a fact and that the jury should
evaluate witnesses’ testimony carefully. Finally, because the challenged
instruction in the present case was legally accurate and did not violate
defendant’s right to a fair trial, defense counsel's performance with respect
to it was not deficient; she was not required to raise a meritless objection
regarding the instruction. Snider, 239 Mich.App at 425.
Garcia, 2010 WL 2431913, at *2.
Review of this allegation of ineffective assistance of counsel is foreclosed for the
same reason review was barred by the prior allegation. The state court found as a matter
of state law that the jury instruction was a correct statement of Michigan law. Any objection
would therefore have been denied, and counsel was not ineffective for failing to have made
All of the Petitioner’s allegations of ineffective assistance of trial counsel were
reasonably adjudicated by the state courts. Relief with respect to this claim is therefore
barred under § 2254(d).
F. Ineffective Assistance of Appellate Counsel
Petitioner’s fifth claim asserts that his appellate counsel was ineffective for failing to
raise many of his claims on direct appeal. He argues that this constitutes “cause” to excuse
any procedural default of those claims. Because the Court bypassed Respondent’s
procedural default defense, this claim is moot. And as the Court found, the allegedly
defaulted claims do not merit relief. Counsel was not ineffective for failing to raise meritless
claims. See Bradley, 192 Fed. Appx. at 475.
G. Actual Innocence
Petitioner claims that he has new evidence that proves that he is actually innocent.
Referencing some of the facts used in support of his ineffective assistance of trial counsel
claim, he asserts that his brother, James J. Super, would have testified that Petitioner was
with him at all times when the sexual assaults were alleged to have occurred. He also
asserts that Wendy Garcia, Sudie Super, Jennifer Kencht, and Thomas Jaworski were all
available to testify at the time of trial and would have attacked the credibility of the victim.
Petitioner renews his claim that Katherine Okla could have been called as an expert
witnesses to counter the prosecutor’s expert witness, Amy Allen. Petitioner also asserts
that the victim told Allen that she was present at the interview because her mother “wanted
[Petitioner] in jail,” and that this statement was omitted from trial. Petitioner claims that the
victim’s mother made prior false accusations against the victim’s biological father. And
finally, Petitioner indicates that a letter from a detective who investigated the case states
that he personally did not believe the victim’s allegations.
First, none of these allegations are new. All these matters were raised by Petitioner
in the state courts either on direct appeal or in his post-conviction review proceeding, and
the state court’s found the allegations unavailing.
Be that as it may, a freestanding claim of actual innocence is nevertheless not
cognizable on federal habeas review. A writ of habeas corpus may be granted “only on the
ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Thus, the existence of this alleged evidence of
innocence, standing alone, is not a basis for granting the writ. As the Supreme Court has
explained: “Claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S.
390, 400 (1993); see also, id. at 404 (claim of actual innocence is “not itself a constitutional
claim, but instead a gateway through which a habeas petitioner must pass to have his
otherwise [procedurally] barred constitutional claim considered on the merits.”) (emphasis
added); Schlup v. Delo, 513 U.S. 298, 314-16 (distinguishing, in part, Herrera because in
this case the petitioner “accompanie[d] his claim of innocence with an assertion of
constitutional error at trial.”). Thus, Petitioner’s claim of actual innocence based on this
evidence, standing alone, provides no basis for habeas relief. See Cress v. Palmer, 484
F.3d 844, 854 (6th Cir. 2007); Wright v. Stegall, 247 Fed. Appx. 709, 711 (6th Cir. 2007).
Further, even if such a claim were cognizable, Petitioner’s evidence falls far short
of that necessary to establish that he is innocent. In Herrera, without elaborating further,
the Court noted that even if a free-standing claim of innocence were cognizable on habeas
review, “the threshold showing for such an assumed right would necessarily be
extraordinarily high.” Herrera, 506 U.S. at 417. In Schlup, the Court elaborated on the
showing required to establish “actual innocence” for purposes of overcoming a procedural
bar to consideration of a constitutional claim. The Court explained that, to establish actual
innocence, the petitioner must “show that a constitutional violation has probably resulted
in the conviction of one who is actually innocent. To establish the requisite probability, the
petitioner must show that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.” Schlup, 513 U.S. at 327 (internal citation and
quotation omitted). The Supreme Court has also explained that a petitioner cannot
establish his actual innocence merely be rehashing his innocence claims raised in the state
courts and relying on the evidence adduced at trial. If he could, federal habeas review
would become nothing more than a second trial on the merits, something the Supreme
Court has repeatedly admonished the federal courts to avoid. See Milton v. Wainwright,
407 U.S. 371, 377 (1972) (“The writ of habeas corpus has limited scope; the federal courts
do not sit to re-try state cases de novo[.]”). Thus, “to be credible, [a claim of actual
innocence] requires petitioner to support his allegations of constitutional error with new
reliable evidence that was not presented at trial.” Schlup, 513 U.S. at 324. “Examples of
evidence which may establish factual innocence include credible declarations of guilt by
another, trustworthy eyewitness accounts, and exculpatory scientific evidence.” Pitts v.
Norris, 85 F.3d 348, 350-51 (8th Cir. 1996) (citations omitted); accord Schlup, 513 U.S. at
324 (referring to “exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence”).
Petitioner’s proffered evidence of his actual innocence falls far short of the standard
enunciated in Schlup. Much of what Petitioner cites would not have been admissible at trial.
For example the fact that his family members and a police officer did not believe the victim
would have been inadmissible. Moreover, Petitioner still lacks a proffer of what Okla would
testify to, or whether she would testify at all. And even if he did make a proffer, Allen’s
testimony was not critical to the prosecutor’s case. This was not a case of a very young
victim whose testimony may have been affected by a suggestive forensic interview. The
victim was a teenager, and Allen’s relevance was essentially limited to providing commonsense reasons why children sexually assaulted by family members might delay disclosure.
Finally, that the victim said her mother wanted Petitioner in jail is unsurprising – her
daughter claimed that Petitioner molested her.
The proffered evidence of innocence does not make it more likely than not that no
reasonable juror would have convicted him. Schlup, 513 U.S. at 327. This claim does not
suffice to excuse any procedural defaults or as an independent basis for granting relief.
H. Motion for Withdrawal of Petitioner’s Counsel (Dkts. 22, 25)
Both Petitioner’s counsel, (Dkt. 25), and Petitioner himself, (Dkt. 22), have filed
motions seeking the removal of Petitioner’s counsel from the case so that he can proceed
pro se. Under the Model Rules of Prof'l Conduct R. 1.16(b), “[A] lawyer may withdraw from
representing a client if . . . good cause for withdrawal exists.” Although these rules do not
guarantee a right to withdraw, “they confirm that withdrawal is presumptively appropriate
where the rule requirements are satisfied.” Brandon v. Blech, 560 F.3d 536, 537 (6th Cir.
Petitioner and his attorney claim that there has been a breakdown in the attorneyclient relationship and that they are no longer able to communicate. Petitioner’s recent
filings–discussed below–indicate that he desires to change the course of proceedings and
renew his efforts in the state trial court. Under these circumstances, good cause exists for
withdrawal, and the motions will be granted.
I. Motions to Hold Petition in Abeyance, to Amend, and for Evidentiary Hearing (Dkts. 20,
21, 23 and 28).
Petitioner has filed a number of pro se motions, including a motion to hold the case
in abeyance (Dkt. 20), motion to amend his petition (Dkt. 21), and motion for an evidentiary
hearing. (Dkt. 28). His counsel filed a motion to file a corrected brief in support of the
petition at the same time she filed her motion to withdraw. (Dkt. 23).
1. Motion to Amend and Motion to File Corrected Brief (Dkts. 21 and 23)
As the Court understands Petitioner’s pro se motions, he seeks to amend his petition
because he found the brief originally filed by counsel on July 29, 2016, (Dkt. 16),
inadequate. Subsequent to the filing of this motion, however, Petitioner’s counsel filed an
amended brief in support of the petition. (Dkt. 23). Petitioner has filed no opposition to this
amended brief which appears to adequately present the Court with all of Petitioner’s
Federal Rule of Civil Procedure 15 provides that the Court should freely allow a party
to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). Here, in light of the fact that
Petitioner’s claims have now all been adequately presented to the Court, justice does not
require at this late date that Petitioner be given an opportunity to file an additional pleading.
The Court has before it not only the corrected brief filed by counsel, but it also has the pro
se briefs filed by Petitioner in the state courts on direct appeal and during his postconviction proceeding. The motion to amend, (Dkt. 21), will therefore be denied. The motion
to file the corrected brief in support of the petition, (Dkt. 23), will be granting as that brief
adequately presents the substance of Petitioner’s habeas claims.
2. Motion to Stay Case (Dkt. 20)
Petitioner has also filed a motion to stay the case and hold it in abeyance while he
attempts to present additional claims to the state court. (Dkt. 20). Petitioner has filed copies
of what he either has or intends to file in the state trial court. (Dkts. 26 and 27). A federal
district court has discretion to stay a petition to allow a petitioner to present unexhausted
claims to the state courts and then return to federal court on a perfected petition. See
Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available only in “limited
circumstances” such as when the one-year statute of limitations poses a concern, and
when the petitioner demonstrates “good cause” for the failure to exhaust state remedies
before proceeding in federal court, the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not “plainly meritless.” Id. at 277.
The Court will deny the motion to stay because Petitioner’s new claims are plainly
meritless. Petitioner claims that he has new evidence that proves his innocence that was
suppressed by the prosecutor. The materials filed by Petitioner in support of his assertions,
however, do not exculpate him at all. The police report made by Latimer’s mother supports
the victim’s mother’s testimony that Petitioner was communicating with under-aged girls on
the internet. See Dkt. 26, at 35, 37. The police report indicates that Latimer’s mother
complained that her daughter was contacted by Petitioner on social media, and that he
was “attempting to befriend her for the wrong reasons.” Id. The redacted report
substantiates the allegation that Petitioner told Latimer that she was “sexy.” Id. Though no
charges were brought as a result of this contact between Latimer’s mother and the police,
it is certainly far from evidence indicating his innocence that he claims it to be. Nor does
the proffered transcript of the internet chat do Petitioner any favors. In it he laments to a
fourteen-year-old girl about his failed marriage, and tells her, “Pimps don’t die, they just
pimp harder.” Id., at 40.
Petitioner also offers a copy of a recent text-message chat he had with Latimer from
prison. Id., at 47-58. Latimer does not recant any of her testimomoy in the exchange.
Rather she states simply: “this is something that I have never wanted to be a part of,” that
she “was in 6th grade” when the events transpired, that she does “not know what
happened,” and that she does not “have any answers for you nor do I want to be involved
in something I really know nothing about.” Id. Petitioner makes much of the concession by
Latimer that she did not know what happened, but the prosecution never claimed that
Lattimer witnessed any of the sexual assaults. Rather, Latimer merely testified about
Petitioner’s inappropriate sexual comments when she visiting the victim’s house in the sixth
grade. See Dkt. 10-5, at 250-263. She never purported to know whether Petitioner actually
sexually assaulted the victim. Id. The transcript of the text chat does not recant any of that
There is no indication in any of the new materials presented by Petitioner either that
the prosecutor suppressed any evidence or that the material is exculpatory. All Petitioner
has demonstrated is that Latimer’s mother went to the police with complaints that Petitioner
was contacting her fourteen-year-old daughter, that it is true Petitioner contacted the
teenager on social media, that the contact evidences at a minimum inappropriate
communication by an adult who tells a young girl that he will “pimp harder,” and that now
years after the prosecution Latimer unsurprisingly does not want anything to do with
Petitioner. In sum, the claims Petitioner wishes to raise in the state courts are plainly
meritless, and do not provide a basis for granting his motion to stay the case. That motion,
(Dkt. 20), will therefore be denied.
3. Motion for Evidentiary Hearing (Dkt. 28)
Finally, Petitioner has filed a motion for an evidentiary hearing. (Dkt. 28). The motion
seeks to introduce the proffered evidence he presented to the state courts in support of his
claims of ineffective assistance of counsel and suppression of evidence by the prosecution.
“AEDPA restricts the availability of federal evidentiary hearings. For a claim that was
adjudicated on the merits in a state court proceeding, sections 2254(d)(1) and (d)(2) of
AEDPA apply, and the district court is limited to the record that was before the state court
at the time.” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012). The
state courts rejected Petitioner’s ineffective assistance of counsel and suppression of the
evidence claim on direct review and during his post-conviction review proceeding on the
merits. Because the state courts adjudicated the merits of Petitioner’s claims, this Court is
limited to the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 180
(2011). Accordingly, the Court denies the request for an evidentiary hearing.
IV. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of
appealability. 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 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). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901
(6th Cir. 2002). Here, jurists of reason would not debate the Court’s conclusion that
Petitioner has not met the standard for a certificate of appealability because all of his claims
are devoid of merit. The Court will therefore deny a certificate of appealability.
The Court will, however, grant permission to appeal in forma pauperis because any
appeal of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court:
1) DENIES the petition for a writ of habeas corpus,
2) DENIES a certificate of appealability,
3) GRANTS permission to appeal in forma pauperis,
4) DENIES Petitioner’s motion to stay. (Dkt 20).
5) DENIES Petitioner’s motion to amend. (Dkt. 21).
6) GRANTS Petitioner’s motions for withdrawal of counsel. (Dkts. 22 and 25).
7) GRANTS Petitioner’s motion to file corrected brief. (Dkt. 23), and
8) DENIES Petitioner’s motion for evidentiary hearing. (Dkt. 28).
s/ Nancy G. Edmunds
Hon.Nancy G. Edmunds
United States District Judge
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