Gembe v. Winn

Filing 13

MEMORANDUM AND ORDER DENYING THE PETITION FOR THE WRIT OF HABEAS CORPUSAND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HECTOR GEMBE,
Petitioner,
Civil No. 16-11548
v.
HON. AVERN COHN
THOMAS WINN,
Respondent.
__________________________/
MEMORANDUM AND ORDER
DENYING THE PETITION FOR THE WRIT OF HABEAS CORPUS
AND
DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a pro se habeas case under 28 U.S.C. § 2254. Petitioner, a state
prisoner, challenges his conviction and sentence of twelve and a half to twenty-five
years for first-degree criminal sexual conduct. Petitioner contends that prejudicial
evidence about a murder was injected into evidence, that trial counsel contributed to the
admission of the evidence, that prosecution witnesses vouched for the complaining
witness’s credibility, and that the trial court erred in his sentencing. Respondent,
through the Attorney General’s office, contends that certain claims are procedurally
defaulted and other claims are not cognizable on habeas review or were reasonably
decided by the Michigan Court of Appeals. See People v. Gembe, No. 316911, 2014
WL 6462411 (Mich. Ct. App. Nov. 18, 2014) (unpublished). For the reasons set forth
below, the petition will be denied.

II. Background
The state court accurately summarized the facts leading to Petitioner’s conviction
as follows:
Defendant was accused of repeatedly sodomizing seven-year-old MH for
an extended period. At the time, MH was a non-English-speaking,
Mexican immigrant. Her mother would leave for work before MH left for
school and would return about 30 minutes after MH returned home.
Defendant was a family friend who drove MH, together with his daughter
and two of his other relatives, to and from school in his white, full-size van.
After pulling into his driveway after school, defendant would let the other
girls out first and tell them to go home. When MH attempted to leave,
defendant would push her back inside, direct her to the rear bench, have
her turn around, and then force her to her hands and knees. Defendant
would then lift up her dress or pull down her pants, remove her underwear,
and sodomize her.
MH testified that defendant would assault her every time he picked her up
from school and that these incidents continued for about a year. She said
defendant told her not to tell her mother because “she can’t do nothing,
she’s by herself.” MH explained that she never reported the incidents
because she was scared that her mother would get into trouble. Several
years later, in 2012, MH told her cousin that defendant had sexually
abused her. She said she was no longer afraid to report defendant
because she was older, had become a citizen, and knew “[h]er rights.”
Gembe, 2014 WL 6462411 at *1.1
Petitioner was tried before a jury. On January 30, 2013, the jury found Petitioner
guilty of one count of first-degree criminal sexual conduct. See Mich. Comp. Laws §
750.520b(1)(a) (sexual penetration of a person under the age of thirteen). On February
28, 2013, the trial court exceeded the recommended sentencing guidelines and
sentenced Petitioner to prison for twelve and a half to twenty-five years with a credit of

1
  Like the state court, this Court will refer to the complaining witness by her initials.  

182 days for time served. A Panel of the Michigan Court of Appeals affirmed
Petitioner’s conviction in a per curiam opinion. See Gembe, 2014 WL 6462411.2 On
December 9, 2015, the Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the questions presented to it. See People v. Gembe, 498
Mich. 935 (2015).
Petitioner then filed a habeas petition, raising the following claims as phrased by
Petitioner:
GROUND ONE: Ineffective Assistance of Counsel
Supporting Facts: Counsel[‘s] unprofessional performance.
GROUND TWO: Denial of 14th Amendment to Due Process and Fair Trial and
Abuse of Discretion.
Supporting Facts: Prejudice by Prosecution on use of erronnious (sic)
information to use information without a conviction.
Attached to the form is Petitioner’s state appellate court brief where he styled his
claims as follows:
I.

The defendant was denied a fair trial because prejudicial
evidence of an alleged murder in Mexico was injected into
the trial and [he] was denied the effective assistance of
counsel because his trial attorney contributed to placing this
prejudicial evidence before the jury.

II.

The defendant was denied a fair trial because the
prosecutor’s expert witness effectively vouched for the
credibility of the complainant by implying that false

2
  Circuit Judge William C. Whitbeck concurred with the majority in part and dissented in

part. He voted to vacate Petitioner’s sentence and to remand the case for resentencing because the trial court did not explain why its departure from the sentencing
guidelines was more proportional to Petitioner’s offense than the recommended
sentence. Gembe, 2014 WL 6462411, at *7 and *8. 
3 

allegations amounted to less than one percent of complaints
made.
III.

The defendant’s due process right to a fair trial was violated
by the admission of improper opinion testimony by Detective
Brad Wise, who vouched for the credibility of the
complainant.

IV.

The trial court erred in scoring OV8 at 15 points and the
defendant should be resentenced because the
recommended minimum sentencing range was affected.

V.

The trial court erred in sentencing the defendant to a prison
term substantially in excess of the recommended minimum
sentence range without adequate reasons for the amount of
the upward departure.

The Court construes the pro se petition liberally, as it must under Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), to raise the above five claims, which
Petitioner presented to the Michigan Court of Appeals and to the Michigan Supreme
Court.
III. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as codified
at 28 U.S.C. § 2254(d), provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.
4 

28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [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 (2000)). “[T]he ‘unreasonable application’ prong of § 2254(d)(1)
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413).
“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)). Accordingly,
[w]hen reviewing state criminal convictions on collateral review, federal
judges are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were
wrong. Federal habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Harrington, supra, at 102–103,
131 S.Ct. 770 (internal quotation marks omitted).
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam). “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
5 

that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
In simple terms, the Supreme Court has said that the standard of review is
“difficult to meet” and is a “highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The Supreme Court has
further said that a federal court must guard against “using federal habeas corpus review
as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010).
Finally, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358,
360-61 (6th Cir. 1998).
IV. Analysis
A. Claim Regarding Evidence of a Murder
Petitioner alleges that he was denied a fair trial because prejudicial evidence
about an alleged murder in Mexico was injected into the trial. Petitioner further alleges
that he was denied the effective assistance of counsel because his trial counsel
contributed to placing the evidence before the jury. The Michigan Court of Appeals
provided the following background for this claim:
On cross-examination, defense counsel asked MH a series of questions
suggesting that she was falsely accusing defendant of sexual abuse
6 

because her stepfather and defendant had a “beef.” During this
questioning, MH explained that one reason she had failed to report the
issue was because she had heard that defendant “killed someone in
Mexico.” The lower court sustained defense counsel’s immediate
objection and told the jury that there was “obviously” no factual basis for
the comment and that it was not to consider it.
On re-cross-examination, defense counsel attempted to use MH’s
statement against her by insinuating that she was falsely accusing
defendant of sexual abuse to get justice for the murder she believed he
had committed in Mexico. The lower court then found that defense
counsel had opened the door to questions on this issue and allowed the
prosecution to question MH about the murder allegation on its second redirect examination. MH then reiterated that she did not report the abuse
because she believed defendant was dangerous and that he had killed
someone in Mexico.
Gembe, 2014 WL 6462411, at *1.
1. Evidentiary Error
Petitioner contends that there was no conceivable basis for admitting evidence of
the alleged murder and that any benefit to the prosecutor from the use of other-acts
evidence was outweighed by its prejudicial effect on his defense. Petitioner also
contends that the trial court essentially reversed its ruling on the admissibility of the
evidence without good reason when it allowed the prosecutor to pursue the issue during
her second re-direct examination. The Michigan Court of Appeals concluded on review
of this claim that Petitioner’s right to a fair trial was not violated by the admission of the
evidence.
Petitioner’s claim lacks merit because errors in the application of state law,
especially rulings regarding the admission or exclusion of evidence, usually may not be
questioned in a federal habeas corpus proceeding. Cooper v. Sowders, 837 F.2d 284,
7 

286 (6th Cir. 1988). To the extent that testimony about the alleged murder violated
Michigan’s rules of evidence, the error is not cognizable here because
it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Furthermore, there is no clearly established Supreme Court precedent which
holds that a state violates due process by admitting other “bad acts” evidence. Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Therefore, the state courts’ decisions on
Petitioner’s claim were not contrary to, or unreasonable applications of, Supreme Court
precedent, for purposes of § 2254(d)(1). Even if Petitioner’s claim were cognizable on
habeas review, a state court’s evidentiary error does not warrant habeas relief unless
the error was so egregious as to result in fundamental unfairness. Bugh, 329 F.3d at
512. That is not the case here, as explained below.
The disputed testimony about an alleged murder first occurred when MH made
the remark that she did not want other people to experience what happened to her
because she had heard that Petitioner killed someone in Mexico. (1/29/13 Trial Tr. at
63.) The trial court sustained defense counsel’s motion to strike the remark as
unresponsive. The court then instructed the jury that there was no factual basis for
MH’s comment and that the jury was not to consider it. Id. at 63-64.
The prosecutor did not address the issue on her first re-direct examination of MH,
but MH stated that she wanted justice and that Petitioner did not get anything for what
he did in Mexico. Id. at 65-72. Defense counsel then pursued the issue on re-cross
8 

examination, and MH repeated that Petitioner did not get anything for killing a person in
Mexico. Id. at 72-73.
The prosecutor then argued that defense counsel had opened the door to
evidence of the murder. The trial court agreed and permitted the prosecutor to ask MH
during the second re-direct examination whether MH was afraid of Petitioner because
she thought he had killed someone in Mexico. MH then stated that she delayed
disclosing Petitioner’s sexual abuse in part because she feared Petitioner. Id. at 73-74.
After MH concluded her testimony and the jury was excused from the courtroom, the
trial court stated that defense counsel had invited MH’s comments and that the court
was not going to give any further curative instructions. Id. at 77-78.
Even if the jurors chose to believe that Petitioner had murdered someone in
Mexico, they would not necessarily have concluded that he was guilty of committing
criminal sexual conduct with MH. As defense counsel pointed out in his closing
argument, there was no apparent connection between Petitioner’s alleged conduct in
Mexico many years earlier and the current case.
The trial court, moreover, initially instructed the jurors that there was no factual
basis for MH’s comments that Petitioner had killed someone in Mexico and that the
jurors should not consider the comment. Id. at 63-64. In the court’s subsequent charge
to the jury, the court also told the jurors that they must not let sympathy or prejudice
influence their decision. (1/30/13 Trial Tr. at 149.) Jurors are presumed to follow a trial
court’s instructions to them. Richardson v. Marsh, 481 U.S. 200, 211 (1987).

9 

Thus, the disputed evidence about a murder committed in Mexico did not render
Petitioner’s trial fundamentally unfair. In fact, defense counsel ultimately used the
evidence to suggest that MH had a motive for lying about what Petitioner did to her.
Petitioner’s right to due process was not violated, and he is not entitled to relief on this
evidentiary claim.
2. Ineffective-Assistance-of-Counsel
Petitioner also contends that defense counsel was ineffective for continuing to
ask MH about the murder. The Michigan Court of Appeals found that this claim failed
because questioning MH about the murder was a reasonable trial strategy.
To prevail on his ineffectiveness claim, Petitioner must show “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner must demonstrate that
“counsel’s representation fell below an objective standard of reasonableness,” id. at
688, and “that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “The standards created by Strickland and §
2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations omitted).
The Court agrees with the Michigan Court of Appeals that defense counsel’s
performance did not fall below an objective standard or reasonableness. As the Court
of Appeals explained:
MH first made the murder allegation during cross-examination as a
nonresponsive answer to one of defense counsel’s questions. As a result,
defense counsel only addressed the issue after MH had made the
allegation in front of the jury.
10 

Gembe, 2014 WL 6462411, at *3. Furthermore,
[t]hroughout the trial, defense counsel theorized that MH was falsely
accusing defendant. When MH commented during cross-examination that
she believed defendant was not punished for a murder he committed in
Mexico, it provided a possible motive she might have had for making such
false allegations.
Id.
The Court agrees with the Michigan Court of Appeals that defense counsel’s
continuing questions about the alleged murder were part of a reasonable strategy to
discredit MH. Defense counsel used MH’s testimony about a murder to show that MH
fabricated the criminal sexual misconduct charge to punish Petitioner for a murder he
committed without any repercussions. This use of the evidence did not amount to
ineffective assistance. Therefore, habeas relief is not warranted on this ground.
B. Vouching
In his second and third claims, Petitioner contends that his rights to a fair trial and
due process of law were violated when prosecution witnesses vouched for MH. The
Michigan Court of Appeals explained the context for these claims as follows:
The lower court qualified psychologist Randall E. Haugen as an expert
witness regarding the character and behavior of sexual assault victims,
over defendant’s objection. Haugen testified that he had treated sexual
assault victims as part of his psychology practice for more than 20 years,
but admitted that he did not speak with MH regarding this particular case.
Haugen explained that victims of sexual abuse vary in the amount of time
they delay before reporting an incident. He stated that some wait years.
On cross-examination, defense counsel asked Haugen if he had ever
dealt with individuals who made false allegations of sexual abuse.
Haugen stated that he had, further explaining that typically false
allegations are made to achieve some secondary gain. On redirect, the
11 

prosecution followed up on the issue, asking Haugen if false accusations
are common. Haugen said that he does roughly 20 or 30 assessments a
week and had “a couple” false reports of sexual abuse the prior year.
Additionally, Brad Wise, a detective, testified that defendant voluntarily
came in for an interview after he contacted him regarding the
investigation. The prosecution asked Wise to describe some of his
interview techniques. Wise explained that he sometimes tells suspects
that he believes they are lying, or that he believes the victim in a case if
“the facts bear that out.” He also stated that he uses this technique
regardless of whether he personally believes that what he is saying is true,
because he will use whatever technique will help elicit information from a
suspect. The prosecution moved to admit a videotaped recording of
Wise’s interview of defendant. Before playing the recording, the lower
court instructed the jury as follows: “The admissible evidence here are
[sic] [defendant’s] statements, and—and the comments of Detective Wise
and his statements throughout, they’re not evidence and they’re not—and
they shouldn’t be considered as evidence by you.... They just are there to
give meaning to any responses by the Defendant....” In the video, Wise
repeatedly asks, “she’s telling the truth, isn’t she?”
Gembe, 2014 WL 6462411, at *3 (footnote omitted).
Petitioner asserts that Haugen vouched for MH’s credibility by implying that false
allegations amount to less than one percent of sexual abuse complaints. See 1/29/13
Trial Tr. at 102-03 (Haugen’s testimony that he performed twenty or thirty assessments
each week and that he detected “a couple” of false allegations during the previous
year).
Petitioner also says that Detective Wise also vouched for MH when Wise
responded to the prosecutor’s question regarding whether he tells suspects that he
believes the victim because that is true. Wise answered the question by saying, “Yes,
oftentimes, I’ll tell people that I don’t’ believe them and I believe the other person
because the facts bear that out.” Id. at 118.
12 

1. Procedural Default
The State argues that Petitioner’s vouching claims are procedurally defaulted
because he did not object to the witnesses’ comments at trial on the basis that the
witnesses vouched for MH. A procedural default is “a critical failure to comply with state
procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997 ). Under the doctrine of
procedural default, “a federal court will not review the merits of [a state prisoner’s]
claims, including constitutional claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9
(2012). In this Circuit,
“[a] habeas petitioner’s claim will be deemed procedurally defaulted if
each of the following four factors is met: (1) the petitioner failed to comply
with a state procedural rule; (2) the state courts enforced the rule; (3) the
state procedural rule is an adequate and independent state ground for
denying review of a federal constitutional claim; and (4) the petitioner has
not shown cause and prejudice excusing the default.” [Jalowiec v.
Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To determine whether a
state procedural rule was applied to bar a habeas claim, [courts] look “to
the last reasoned state court decision disposing of the claim.” Guilmette v.
Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
2. Application
The state procedural rule in question here is Michigan’s contemporaneousobjection rule, which requires defendants in criminal cases to preserve their appellate
claims by objecting on the same ground in the trial court. People v. Buie, 825 N.W.2d

13 

361, 374 (Mich. 2012). Petitioner did not object to the witnesses’ testimony at trial on
the basis that the testimony constituted vouching.3 Therefore, the first factor is satisfied.
The second factor is also satisfied because the Michigan Court of Appeals
explicitly stated on review of Petitioner’s claims that the issues were not preserved for
appeal. The Court of Appeals noted that Petitioner did not object to Haugen’s testimony
regarding the frequency of false sexual abuse claims and that Petitioner did not object
to Wise’s testimony about his investigative techniques on the basis that Wise was
vouching.
The third procedural-default factor is whether the state procedural rule in
question was an adequate and independent state ground for denying review of a federal
constitutional claim. “The adequacy of a state procedural bar turns on whether it is
firmly established and regularly followed; a state rule is independent if the state court
actually relies on it to preclude a merits review.” Biros v. Bagley, 422 F.3d 379, 387 (6th
Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)).
“Michigan’s contemporaneous-objection rule is both a well-established and
normally enforced procedural rule,” Taylor v. McKee, 649 F.3d 446, 451 (6th Cir. 2011),
and the Michigan Court of Appeals relied on the rule to preclude full review of
Petitioner’s vouching claims. The third procedural-default factor is satisfied.

3
  Petitioner did object when the prosecutor asked Wise whether he sometimes tells

suspects that he believes another witness because he actually believes the victim. But
the basis for the objection was that the prosecutor’s question was leading. (1/29/13
Trial Tr. at 117-18.) 
14 

The fourth factor requires a habeas petitioner to show “cause” for his state
procedural error and resulting prejudice. Petitioner has not alleged cause for his failure
to object at trial or resulting prejudice. The Court, therefore, considers the “cause and
prejudice” argument abandoned. Roberts v. Carter, 337 F.3d 609, 613 (6th Cir. 2003).
In the absence of “cause and prejudice,” a habeas petitioner may pursue a
procedurally defaulted claim only if he can demonstrate that failure to consider his claim
will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 750 (1991). “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
“To be credible, [a claim of actual innocence] requires [the] petitioner to support his
allegations of constitutional error with new reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner has not presented the Court with any new evidence of actual
innocence. Therefore, a miscarriage of justice will not occur as a result of the Court’s
failure to address the substantive merits of Petitioner’s vouching claims. Petitioner’s
claims of witness vouching are procedurally defaulted.
C. Sentence
Petitioner’s final two claims challenge his sentence.
1. Scoring the Sentencing Guidelines
Petitioner alleges first that the trial court erred when it scored fifteen points for
offense variable eight (asportation of the victim). This claim does not warrant habeas
15 

relief because a challenge to the state court’s application and interpretation of state
sentencing guidelines is “a matter of state concern only,” Howard v. White, 76 F. App’x
52, 53 (6th Cir. 2003), and “federal habeas corpus relief does not lie for errors of state
law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Moreover, the Michigan Court of Appeals upheld the trial court’s scoring of
offense variable eight because the evidence established that Petitioner moved MH from
the front of his van to the back of the van where he would not be observed by other
people. The state court’s interpretation of state law binds this Court sitting in habeas
corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Petitioner cites Townsend v. Burke, 334 U.S. 736 (1948), for the principle that
defendants have a constitutional right to a sentence based on accurate information.
According to Petitioner, a correct score of zero for offense variable eight would have
reduced the upper limit of his minimum sentencing guidelines range by fifteen months.
Petitioner’s reliance on Townsend is misplaced under the circumstances. The trial
court, however, exceeded the sentencing guidelines, as scored at Petitioner’s
sentencing, by over five years because it was not convinced that a sentence within the
guidelines range was appropriate. The trial court stated that the guidelines did not
adequately take into account the extent of the sexual abuse or the complainant’s
vulnerability. (2/28/13 Sentencing Tr. at 22-23.) The alleged error in scoring offense
variable eight was harmless, because the trial court did not think that the sentencing
guidelines as calculated – with a score of fifteen points for offense variable eight – were
sufficiently severe.
16 

2. Exceeding the Sentencing Guidelines
In Petitioner’s fifth and final claim, he contends that the trial court sentenced him
to a prison term substantially in excess of the recommended minimum sentence range
without providing adequate reasons for the amount of the upward departure. In its
majority opinion, the Michigan Court of Appeals determined that the trial court provided
substantial and compelling reasons for the upward departure from the sentencing
guidelines. The court of appeals noted that Petitioner had sexually abused MH for a
long time and that MH was a particularly vulnerable victim because she came to this
country with only one family member, and she could not speak English well. The Court
of Appeals ultimately concluded that Petitioner’s sentence was proportional to the
seriousness of the crime.
Petitioner is not entitled to relief on this claim because, as explained above, the
Court may not grant the writ of habeas corpus on the basis of a perceived error of state
law.
V. Conclusion
For the reasons stated above, the state-court decisions were not contrary to
Supreme Court precedent, unreasonable applications of Supreme Court precedent, or
unreasonable determinations of the facts. The state-court decisions also were not so
lacking in justification that there was an error beyond any possibility for fairminded
disagreement.
Accordingly, the petition for the writ of habeas corpus petition is DENIED.
17 

Petitioner may not appeal this opinion without first obtaining a certificate of
appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1), and a certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of [her] constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists could not disagree with the Court’s resolution of Petitioner’s
first, fourth, and fifth claims. Reasonable jurists also could not debate whether the
Court’s procedural ruling on Petitioner’s second and third claims was correct or whether
the allegations state a valid claim of the denial of a constitutional right. Accordingly, a
certificate of appealability is DENIED.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 2/11/2019
Detroit, Michigan

18