Streets v. Stephenson
Filing
14
OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT OFHABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Paul D. Borman. (NAhm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONY DEVERN STREETS,
Petitioner,
CASE NO. 2:16-12889
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
v.
WILLIS CHAPMAN1
Respondent.
______________________________________/
OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT OF
HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
Tony Streets, (“petitioner”), incarcerated at the Thumb Correctional Facility
in Lapeer, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for
four counts of first-degree criminal sexual conduct, M.C.L.A. § 750.520b(1)(a).
Petitioner was sentenced to life in prison without parole, for being a habitual sex
offender, in violation of M.C.L.A. § 750.520b(2)(c). For the reasons stated below,
the application for a writ of habeas corpus is DENIED WITH PREJUDICE.
1
The Court amends the caption to reflect the current warden.
1
I. BACKGROUND
Petitioner was charged in two separate cases that were consolidated for one
trial. Petitioner was convicted following a jury trial in the Kent County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions stemmed from sexual assaults perpetrated
against his daughter. The victim was 12 years old at the time of the
assaults. Defendant forced the victim to perform fellatio on him in a van
in a grocery-store parking lot on two occasions. He also engaged the
victim in penile-vaginal penetration and forced her to perform fellatio on
him at a home belonging to his girlfriend.
People v. Streets, No. 309672, 2013 WL 951285, p. 1 (Mich. Ct. App. Feb. 26,
2013).
The conviction was affirmed on appeal. Id., lv. den. 494 Mich. 884, 834
N.W.2d 479 (2013); reconsideration den. 495 Mich. 904, 839 N.W.2d 463 (2013).
Petitioner filed a post-conviction motion for relief from judgment, which
was denied. People v. Streets, No. 11-08035-FC, 11-08254-FC (Kent. Cty. Cir. Ct.,
Aug. 21, 2014). The Michigan appellate courts denied petitioner leave to appeal.
People v. Streets, No. 326161 (Mich. Ct. App. May 12, 2015); lv. den. 499 Mich.
868, 874 N.W.2d 702 (2016).
2
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner’s constitutional rights to a speedy trial and to the effective
assistance of counsel was violated when the court fail [sic] to bring his
case to trial within 180 days of the statutory notice by the DOC and did
not vacate his convictions.
II. Petitioner’s constitutional right to due process was violated when the
trial court denied him a fair trial by admitting the evidence of prior bad
acts under MCL 768.27.
III. Petitioner’s constitutional rights to due process and the effective
assistance of counsel was violated when the courts [sic] introduced
unscientific “statistics” of guilt submitted without a proper foundation,
and the trial defense counsel opened the door to the testimony or failing
to object which allowed the purported “statistics” to undermine the most
basic concepts regarding the burden of proof and standard of proof.
IV. Petitioner’s constitutional right to probable cause was violated where
the 61st Judicial Court, nor the 17th Judicial Circuit Court for the County
of Kent had subject matter jurisdiction to proceed lawfully in the court
of law, where the warrant was invalid.
V. Petitioner’s constitutional right to due process was violated when the
court unreasonably failed to address the claim of “actual innocence,”
which would be clear manifest of injustice pursuant to the provision
contained under MCL 770.1.
VI. Petitioner’s constitutional right to due process was violated when the
prosecuting attorney intentionally allowed statements that he knew to be
false from the complaint to be used in an affidavit for probable cause and
presented to the 61st Judicial District Court magistrate in order to obtain
the arrest warrant used against him, fail to bring petitioner’s case to trial
with 180 days, introducing the evidence of prior bad acts under MCL
768.27, and introduced the unscientific “statistics” of guilt submitted
without a proper foundation.
3
VII. Petitioner’s constitutional right to due process and the effective
assistance of both trial and appellate counsels were violated when the
warrant is spoken in conclusory language divesting the 61st Judicial
District and 17th Judicial Circuit Court’s for the County of Kent of
subject-matter jurisdiction and all proceedings thereafter was and is now
void ab initio from there [sic] inception, where appellate counsels [sic]
ineffectiveness clearly failed to properly review his entire court file and
properly raise issues that were more meritorious.
VIII. Petitioner’s constitutional right to due process was violated when
the court denied the petitioner’s motion for relief from judgment based
upon a misapplication of law that was clearly erroneous and
unreasonable finding of fact in violation of MCR 6.508(D)(3).
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
4
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when
“a state court decision unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11.
“[A] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to show that the state
court’s rejection of his claim “was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the “realm of possibility” that
5
fairminded jurists could find the state court decision to be reasonable. See Woods
v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. DISCUSSION
A. Claim # 1. The 180 day rule/speedy trial claim.
Petitioner contends that his right to a speedy trial was violated by failure to
bring his case to trial within 180 days, as set forth in M.C.L.A. § 780.131(1).
Petitioner is not entitled to habeas relief on his claim that he was deprived
of his right to a speedy trial by failure to comply with Michigan’s 180 day rule as
set forth in M.C.L.A. § 780.131(1) because it is a state law claim. See Burns v.
Lafler, 328 F. Supp. 2d 711, 722 (E.D. Mich. 2004). A violation of a state speedy
trial law by state officials, by itself, does not present a cognizable federal claim
that is reviewable in a habeas petition. Burns, 328 F. Supp. 2d at 722 (citing Poe
v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994); Wells v. Petsock, 941 F.2d 253, 256
(3rd Cir. 1991)). Petitioner’s allegation that the State of Michigan violated its
own 180 day rule would therefore not entitle him to habeas relief. Id.
Petitioner is also not entitled to relief on any speedy trial claim.2
2
Respondent argues that this portion of petitioner’s claim is procedurally
defaulted because he never raised a federal speedy trial claim in the state courts
and no longer has a remedy with which to do so. Procedural default is not a
jurisdictional bar to review of a claim within a habeas petition on the merits. See
Trest v. Cain, 522 U.S. 87, 89 (1997). “[F]ederal courts are not required to address
6
The Sixth Amendment guarantees a criminal defendant the right to a speedy
trial. U.S. Const. Amend. VI. To determine whether a speedy trial violation has
occurred, the court must consider the following four factors: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant’s assertion of his speedy trial
right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530
(1972).
The length of delay is a “triggering factor” because “until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance.” Barker, 407 U.S. at 530. Therefore, to
trigger a speedy trial analysis, the accused must allege that the interval between
the accusation and the trial has crossed the threshold dividing an ordinary from
presumptively prejudicial delay. Doggett v. United States, 505 U.S. 647, 651-52
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)). Likewise, a habeas petitioner’s failure to exhaust his
state court remedies does not deprive a federal court of its jurisdiction to consider
the merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). A
habeas petitioner’s failure to exhaust his state court remedies is not a bar to federal
habeas review of the claim “when the claim is plainly meritless and it would be a
waste of time and judicial resources to require additional court proceedings.”
Friday v. Pitcher, 200 F. Supp. 2d 725, 744 (E.D. Mich. 2002). Because
petitioner’s speedy trial claim is without merit, it is easier for the Court to address
the claim on the merits. The Court likewise addresses the merits of several of
petitioner’s other procedurally defaulted claims because it is easier to do so.
7
(1992). Courts have generally found postaccusation delays that approach one year
to be “presumptively prejudicial.” Id. 505 U.S. at 652, n. 1; United States v.
Brown, 90 F. Supp. 2d 841, 846 (E.D. Mich. 2000).
The warrant in Case No. 11-08254-FC was authorized on July 26, 2011,
and the warrant in Case No. 11-08035-FC was authorized the following day.3 It is
unclear whether petitioner was ever arraigned in the district court on either
warrant. The trial in both cases commenced on February 13, 2012.
The Supreme Court noted that it is “[e]ither a formal indictment or
information or else the actual restraints imposed by arrest and holding to answer a
criminal charge that engage the particular protections of the speedy trial provision
of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 320 (1971).
Petitioner’s right to a speedy trial began accruing on the dates that the arrest
warrants were issued. See e.g. United States v. Louzon, 392 F. Supp. 1220, 122526 (E.D. Mich. 1975).
There was only a seven month delay between the issuance of the warrants
in this case and trial, which is not presumptively prejudicial. See United States v.
Gardner, 488 F.3d 700, 719 (6th Cir. 2007)(nine month delay between indictment
and trial not presumptively prejudicial). Because petitioner has failed to establish
3
See ECF 10, Pg ID 780-81, 857-59.
8
that his seven month delay was presumptively prejudicial, it would be unnecessary
for this Court to inquire into the other Barker factors. Id. Petitioner is not entitled
to habeas relief because the seven month delay between the issuance of the arrest
warrants and his trial is not presumptively prejudicial. See Wilson v. Mitchell, 61
F. App’x 944, 946 (6th Cir. 2003).
B. Claim # 2. The prior bad acts evidence claim.
Petitioner next argues that his due process rights were violated by the
admission of petitioner’s prior sexual assaults against other victims at his trial.
The testimony of the prior victims was admitted pursuant to M.C.L.A. §
768.27a, which provides in relevant part that if “the defendant is accused of
committing a listed offense against a minor, evidence that the defendant
committed another listed offense against a minor is admissible and may be
considered for its bearing on any matter to which it is relevant.” Under M.C.L.A.
§ 768.27a(2)(a), “listed offense” is defined as any offense that comes within the
purview of the offenses covered under Section 2 of the Sex Offenders Registration
Act. See M.C.L.A. § 28.722. M.C.L.A. § 768.27a is similar to F.R.E. 414(a),
which indicates that “[I]n a criminal case in which a defendant is accused of child
molestation, the court may admit evidence that the defendant committed any other
child molestation. The evidence may be considered on any matter to which it is
9
relevant.”
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Thus, errors in the application of state law, especially rulings regarding
the admissibility of evidence, are usually not questioned by a federal habeas court.
See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitioner’s claim that the state court violated M.R.E. 404(b) or any other
provision of state law by admitting evidence of his prior sexual assaults against
other minor victims is non-cognizable on habeas review. See Bey v. Bagley, 500
F.3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas
powers did not permit Court to reverse state court conviction based on their belief
that the state trial judge erred in ruling that prior injury evidence was admissible
as bad acts evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53
(1990)(admission at defendant’s bank robbery trial of “similar acts” evidence that
he had subsequently been involved in a house burglary for which he had been
acquitted did not violate due process). The admission of this “prior bad acts” or
“other acts” evidence against petitioner at his state trial does not entitle him to
10
habeas relief, because there is no clearly established Supreme Court law which
holds that a state violates a habeas petitioner’s due process rights by admitting
propensity evidence in the form of “prior bad acts” evidence. See Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Moreover, in light of the fact that
evidence regarding petitioner’s prior sexual assaults would have been admissible
against him in a federal trial under F.R.E. 414, this Court certainly cannot find that
the admission of this evidence at petitioner’s state court trial “was patently unfair,
contradicted governing Supreme Court precedent, or resulted in an incorrect and
unreasonable application of federal law.” Love v. Carter, 49 F. App’x 6, 12 (6th
Cir. 2002). Petitioner is not entitled to habeas relief on his second claim.
C. Claim # 3. The statistical evidence claim.
Petitioner alleges that he was denied a fair trial because the prosecution
elicited prejudicial statistical evidence from Thomas Cottrell. Cottrell testified as
an expert witness on the subject of sexual-abuse disclosure by children. Cottrell
testified that he had treated around 400 children who reported sexual abuse and
that only two of these children made false reports of sexual abuse.
A federal district court cannot grant habeas relief on the admission of an
expert witness’ testimony in the absence of Supreme Court precedent which
shows that the admission of that expert witness’ testimony on a particular subject
11
violates the federal constitution. See Wilson v. Parker, 515 F.3d 682, 705-06 (6th
Cir. 2008). The admission of expert testimony in a state trial presents a question
of state law which does not warrant federal habeas relief, unless the evidence
violates due process or some other federal constitutional right. See Keller v.
Larkins, 251 F.3d 408, 419 (3rd Cir. 2001). Petitioner asserts he was denied a fair
trial when the trial court erroneously admitted prejudicial statistical evidence from
Thomas Cottrell. Cottrell testified that of the 400 children he had treated for
sexual abuse, only two of these children made false reports of sexual abuse.
The Michigan Court of Appeals reviewed this claim for plain error affecting
substantial rights. Without deciding whether Cottrell’s testimony was erroneously
admitted, the Michigan Court of Appeals declined to grant relief to defendant
under the plain-error standard of review because petitioner could not demonstrate
prejudice. The Michigan Court of Appeals reasonably found:
The evidence against defendant in this case was strong. The victim
testified regarding several instances of sexual assault; her testimony
alone was enough to establish defendant’s guilt. MCL 750.520h.
Additionally, the testimony of T.V. and K.V. was highly probative of
defendant’s guilt, as discussed earlier. Further, the prejudicial effect,
if any, of Cottrell’s testimony was alleviated by the trial court’s
instructions, because the trial court instructed the jury that Cottrell’s
testimony “cannot be used to show that the crime or crimes charged
here were committed or that the defendant committed them. Nor can
it be considered an opinion by Thomas W. Cottrell that [the victim] is
telling the truth.” This instruction helped to ensure that the jury did
12
not use Cottrell’s testimony for an improper purpose. See People v.
Peterson, 450 Mich. 349, 378, 537 N.W.2d 857 (1995), amended in
part on other grounds 450 Mich. 1212, 548 N.W.2d 625 (1995).
Jurors are presumed to follow their instructions and most errors are
presumed to be cured by appropriate instructions. People v. Bauder,
269 Mich.App. 174, 195, 712 N.W.2d 506 (2005).
People v. Streets, 2013 WL 951285, p. 4.
Unless a violation of a state’s evidentiary rule results in the denial of
fundamental fairness, an issue concerning the admissibility of evidence does not
rise to the level of a constitutional violation. See Cooper v. Sowders, 837 F.2d
284, 286 (6th Cir. 1988); Coy v. Renico, 414 F. Supp. 2d 744, 756 (E.D. Mich.
2006). As the Sixth Circuit noted, “[e]rrors by a state court in the admission of
evidence are not cognizable in habeas proceedings unless they so perniciously
affect the prosecution of a criminal case as to deny the defendant the fundamental
right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
In light of the deferential standard afforded to state courts under the
AEDPA, the trial court’s decision to permit Mr. Cottrell to offer opinion evidence
concerning the behavioral tendencies of child sex abuse victims was not contrary
to clearly established federal law, so as to entitle petitioner to habeas relief. See
e.g. Schoenberger v. Russell, 290 F.3d 831, 835 (6th Cir. 2002). Because
petitioner cannot demonstrate that the admission of the statistical evidence
13
violated his federal constitutional rights or rendered his trial fundamentally unfair,
he is not entitled to relief. See Welch v. Winn, No. 15-CV-12553, 2016 WL
4205994, p. 6 (E.D. Mich. Aug. 10, 2016), appeal dismissed sub nom. Welch v.
Burton, No. 17-1369, 2017 WL 4404630 (6th Cir. May 11, 2017). Petitioner is
not entitled to habeas relief on his third claim.
D. Claim # 4. The Fourth Amendment claim.
Petitioner next claims that the trial court lacked jurisdiction over his case
because the arrest warrant was invalid.
A federal habeas review of a petitioner’s arrest or search by state police is
barred where the state has provided a full and fair opportunity to litigate an illegal
arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976);
Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For such an
opportunity to have existed, the state must have provided, in the abstract, a
mechanism by which the petitioner could raise the claim, and presentation of the
claim must not have been frustrated by a failure of that mechanism. Riley v. Gray,
674 F.2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether a habeas
petitioner had an opportunity to litigate his claims, not whether he did so or even
whether the Fourth Amendment claim was correctly decided. See Wynne v.
Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003); rev’d on other grds 606 F.3d
14
867 (6th Cir. 2010). Under Stone, the correctness of a state court’s conclusions
regarding a Fourth Amendment claim “is simply irrelevant.” See Brown v.
Berghuis, 638 F. Supp, 2d 795, 812 (E.D. Mich. 2009). Furthermore, “The courts
that have considered the matter ‘have consistently held that an erroneous
determination of a habeas petitioner’s Fourth Amendment claim does not
overcome the Stone v. Powell bar.’” Id. (quoting Gilmore v. Marks, 799 F.2d 51,
57 (3rd Cir. 1986)).
Petitioner presented his Fourth Amendment claim in his post-conviction
motion for relief from judgment before the trial court and the Michigan appellate
courts. See People v. Streets, No. 11-08035-FC, 11-08254-FC, p. 4 (Kent. Cty.
Cir. Ct., Aug. 21, 2014)(ECF No. 9-20 at 4). Petitioner was able to raise his
Fourth Amendment claim in his post-conviction motion and is thus not entitled to
habeas relief. See Hurick v. Woods, 672 F. App’x 520, 535 (6th Cir. 2016), cert.
denied, 138 S. Ct. 96 (2017).
In any event, any defects in the warrant would not deprive the trial court of
jurisdiction. “An illegal arrest, without more, has never been viewed as a bar to
subsequent prosecution, nor as a defense to a valid conviction.” United States v.
Crews, 445 U.S. 463, 474 (1980)(citing Gerstein v. Pugh, 420 U.S. 103, 119
(1975)); see also Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S.
15
436 (1886). The Supreme Court has held that “[T]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is never itself
suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful
arrest, search, or interrogation occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032,
1039 (1984). Although the exclusionary rule prohibits the introduction at trial of
evidence that was seized in violation of the constitution, a criminal defendant “is
not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive
the Government of the opportunity to prove his guilt through the introduction of
evidence wholly untainted by the police misconduct.” United States v. Crews, 445
U.S. at 474. Petitioner does not identify any evidence other than his own body
that was seized during this allegedly unlawful arrest. Petitioner is not entitled to
relief on his fourth claim.
E. Claims # 5 and # 8. The claims involving the state court’s deficient
adjudication of petitioner’s post-conviction motion.
In his fifth and eighth claims, petitioner contends that the trial court erred in
applying M.C.R. 6.508(D)(3) to deny his post-conviction motion for relief from
judgment because petitioner had established his actual innocence to overcome the
procedural bar to post-conviction relief.
16
Petitioner’s claim that the Michigan courts wrongfully denied him postconviction relief is non-cognizable. This Court notes that “[t]he Sixth Circuit
consistently held that errors in post-conviction proceedings are outside the scope
of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.
2007). Thus, a federal habeas corpus petition cannot be used to mount a challenge
to a state’s scheme of post-conviction relief. See Greer v. Mitchell, 264 F.3d 663,
681 (6th Cir. 2001). The rationale behind this is that the states have no
constitutional obligation to provide post-conviction remedies. Id. (citing to
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)).
To the extent that petitioner is arguing that he is entitled to habeas relief
because he is actually innocent, he would not be entitled to habeas relief. In
Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that claims
of actual innocence based on newly discovered evidence fail to state a claim for
federal habeas relief absent an independent constitutional violation occurring in
the underlying state criminal proceeding. Federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the constitution, not to correct errors
of fact. Id., see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)(“We have
not resolved whether a prisoner may be entitled to habeas relief based on a
freestanding claim of actual innocence”). Freestanding claims of actual innocence
17
are thus not cognizable on federal habeas review, absent independent allegations
of constitutional error at trial. See Cress v. Palmer, 484 F.3d at 854-55 (collecting
cases).
Petitioner in his reply brief for the first time argues that he is actually
innocent because there was insufficient evidence to convict him of first-degree
criminal sexual conduct, because there was no evidence that petitioner engaged in
vaginal-penile penetration with the victim. (ECF 10, Pg ID 757).
A reply to an answer to a petition for a writ of habeas corpus is not the
proper pleading for a habeas petitioner to raise additional grounds for relief. Burns
v. Lafler, 328 F. Supp. 2d at 724. “[A] court cannot consider new issues raised in
a traverse or reply to the State’s answer.” Id. Because this claim is being
presented for the first time in petitioner’s reply brief, rather than in his habeas
petition, the claim is not properly before this Court. See Murphy v. Ohio, 551 F.3d
485, 502 (6th Cir. 2009); see also Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir.
2005).
In any event, petitioner’s claim is meritless. The victim testified that
petitioner placed his penis into her vagina. The victim also testified that petitioner
placed his penis in her mouth. (Tr. 2/15/12, pp. 30, 36-40).
18
Under Michigan law, a person is guilty of first-degree criminal sexual
conduct if he or she engages in sexual penetration of another person and the other
person is under 13 years of age. See Greenwell v. Elo, 77 F. App’x 790, 792 (6th
Cir. 2003)(citing M.C.L.A. § 750.520b(1)(a)). Sexual penetration, as defined in
Michigan for purposes of first-degree criminal sexual conduct, is any intrusion,
however slight, of any part of a person’s body or any object into the genital or
anal openings of another person’s body. See People v. Hammons, 210 Mich. App.
554, 557, 534 N.W.2d 183 (1995); see also Bower v. Curtis, 118 F. App’x 901,
905 (6th Cir. 2004). Under Michigan law, sexual penetration includes sexual
intercourse or fellatio. See People v. Pottruff, 116 Mich. App. 367, 374, 323
N.W.2d 402 (1982). The testimony of a sexual assault victim alone is sufficient to
support a criminal defendant's conviction. See United States v. Howard, 218 F.3d
556, 565 (6th Cir. 2000)(citing Gilbert v. Parke, 763 F.2d 821, 826 (6th Cir.
1985)). The victim’s testimony that petitioner sexually penetrated her both
vaginally and orally and that she was twelve years old at the time of the assaults
was sufficient to sustain petitioner’s first-degree criminal sexual conduct
conviction. See O'Hara v. Brigano, 499 F.3d 492, 500 (6th Cir. 2007). Petitioner
is not entitled to relief on his fifth and eighth claims.
19
F. Claim # 6. The prosecutorial misconduct claim.
Petitioner contends that the prosecutor committed misconduct by using
false statements to obtain the arrest warrant, by failing to bring petitioner’s case to
trial within 180 days of learning that petitioner was already in prison on another
offense, and by introducing prior bad acts evidence and unscientific statistical
evidence against petitioner.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). In order to obtain habeas relief on a
prosecutorial misconduct claim, a habeas petitioner must show that the state
court’s rejection of his prosecutorial misconduct claim “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Parker v. Matthews,
567 U.S. 37, 48 (2012)(quoting Harrington, 562 U.S. at 103).
Petitioner’s claim that the prosecutor used false evidence to obtain the arrest
warrant is barred by Stone v. Powell, supra. See e.g. Brown v. Berghuis, 638 F.
Supp. 2d at 811. Petitioner’s claim that the prosecutor used false evidence to
obtain the arrest warrant also does not entitle him to relief because as mentioned
when discussing petitioner’s fourth claim, supra, there was no evidence obtained
20
from the allegedly defective warrant that was used at petitioner’s trial to secure
petitioner’s conviction. See Mattox v. Davis, 549 F. Supp. 2d 877, 938 (W.D.
Mich. 2008).
Petitioner has also not shown that the prosecutor violated Michigan’s 180
day rule. Under Michigan law, the prosecutor was required only to commence
action on petitioner’s case within 180 days of receiving notice of his incarceration,
but was not required to bring petitioner to trial in that time. M.C.L.A. § 780.133.
The prosecutor received notice from the Department of Corrections on July 29,
2011, that petitioner was incarcerated. (Tr. 2/13/12, p. 6). Petitioner’s preliminary
examination was held in August of 2011. (Tr. 8/18/11; Tr. 8/23/11). The
prosecutor commenced action well within 180 days of receiving notice of
petitioner’s incarceration in compliance with the rule.
Finally, petitioner complains that the prosecutor committed misconduct by
the admission of certain evidence that he contends was inadmissible. Although
petitioner frames the admission of this evidence as a prosecutorial-misconduct
challenge, “it amounts in the end to a challenge to the trial court’s decision to
allow the introduction of this evidence.” Webb v. Mitchell, 586 F.3d 383, 397 (6th
Cir. 2009). “A prosecutor may rely in good faith on evidentiary rulings made by
the state trial judge and make arguments in reliance on those rulings.” Cristini v.
21
McKee, 526 F.3d 888, 900 (6th Cir. 2008). Furthermore, it is “not the province of
a federal habeas court to reexamine state-court determinations on state-court
questions.” Estelle v. McGuire, 502 U.S. at 67-68. Because the trial and appellate
courts reasonably concluded that this evidence was admissible, petitioner is not
entitled to relief on his sixth claim.
G. Claim # 7. The ineffective assistance of counsel claim.
Petitioner claims that he was denied the effective assistance of counsel.
A defendant is required to satisfy a two prong test to establish the denial of
the effective assistance of counsel. First, the defendant must show that counsel’s
performance was so deficient that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). The defendant must overcome a strong presumption that
counsel’s behavior was within the wide range of reasonable professional
assistance. Id. Stated differently, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
22
Strickland, 466 U.S. at 694. Strickland places the burden on the defendant who
raises a claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been different,
but for counsel’s allegedly deficient performance. See Wong v. Belmontes, 558
U.S. 15, 27 (2009). The Strickland standard applies as well to claims of
ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617
(6th Cir. 2005).
On habeas review, “the question ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard
is a general standard, a state court has even more latitude to reasonably determine
that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing
Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard,
a “doubly deferential judicial review” applies to a Strickland claim brought by a
23
habeas petitioner. Id. This means that on habeas review of a state court
conviction, “A state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.”
Harrington, 562 U.S. at 101. “Surmounting Strickland’s high bar is never an easy
task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner’s primary claim is that trial counsel was ineffective for failing to
challenge the legality of the arrest warrant.
Petitioner does not identify any evidence other than his own body that was
seized during this allegedly unlawful arrest. Thus, the mere fact that the arrest
warrant may have been defective would not prevent him from being prosecuted
and convicted of this offense. Failing to file a frivolous motion to dismiss does
not constitute ineffective assistance of counsel. See Goldsby v. U.S., 152 F. App’x
431, 438 (6th Cir. 2005). Because a challenge to the legality of petitioner’s arrest
would not have resulted in his release from custody, counsel was not ineffective
for failing to file a motion to dismiss on this basis. See Friday v. Pitcher, 200 F.
Supp. 2d 725, 738-39 (E.D. Mich. 2002).
In his reply brief, petitioner for the first time argues that trial counsel was
ineffective for failing to conduct any pre-trial investigation, for failing to
interview the state’s witnesses, for failing to interview potential defense witnesses,
24
and for failing to conduct an independent investigation of the prosecutor’s case.
(ECF 10, Pg ID 754).
As mentioned when discussing petitioner’s fifth and eighth claims, supra, a
reply to an answer to a petition for a writ of habeas corpus is not the proper place
to raise additional grounds for relief. Burns v. Lafler, 328 F. Supp. 2d at 724.
These claims are being presented for the first time in petitioner’s reply brief,
rather than in his habeas petition and are thus not properly before this Court. See
Murphy v. Ohio, 551 F.3d at 502.
Moreover, petitioner’s new ineffective assistance of trial counsel claims are
conclusory and thus do not entitle him to relief. See e.g. Workman v. Bell, 160
F.3d 276, 287 (6th Cir. 1998)(conclusory allegations of ineffective assistance of
appellate counsel do not warrant habeas relief).
Petitioner’s main argument appears to be that trial counsel was ineffective
for failing to investigate and develop an alibi defense by obtaining and presenting
GPS tracking data from his ankle monitor during the relevant period that the
sexual assaults took place. Petitioner alleges that the GPS data would prove that
he was not at the locations on the dates on which the charged acts occurred.
Petitioner also claims that surveillance cameras from the areas where the sexual
assaults took place would establish that they did not take place on the dates that
25
the victim testified they occurred. Petitioner further claims that trial counsel
should have obtained the victim’s school records to show that the victim was in
school on the dates that the assaults took place, and should have called Tanita
Streets as an alibi witness. (ECF 10, Pg ID 754-55, 811-12).
The trial court rejected these issues in ruling on petitioner’s motion for
relief from judgment, stating in pertinent part:
Turning first to trial counsel’s alleged failure to conduct a thorough
investigation to develop alibis, the Information filed September 2, 2011
stated only that the charged acts occurred sometime between December
29, 2010 and May 4, 2011. The victim’s trial testimony established that
multiple incidents occurred at “Donna’s house” and one took place in
the Duthler Foods parking lot, but did not identify either the specific
dates or time of day on which the claimed sexual assaults occurred.
[Trial Tr, Vol II, pp 24-32]. “Time is not of the essence, nor is it a
material element, in criminal sexual conduct cases involving a child
victim.” People v Dobek, 274 Mich App 58, 83; 732 NW2d 546 (2007).
The jury was correctly instructed that the elements of first degree
criminal sexual conduct at issue required a determination that the
defendant engaged in a sexual act that involved penetration with the
victim between December 29, 2010 and May 4, 2011 and that the victim
was under 13 years of age when the act occurred. None of the possible
alibis suggested by defendant would have covered the entire identified
period; accordingly, attempting to develop an alibi would have been
pointless.
People v. Streets, No. 11-08035-FC, 11-08254-FC, p. 3 (Kent. Cty. Cir. Ct.,
Aug. 21, 2014)(ECF No. 9-20 at 3).
A defense counsel has no obligation to present evidence or testimony that
26
would not have exculpated the defendant. See Millender v. Adams, 376 F.3d at
527 (internal quotation omitted). Therefore, the failure to present a proposed alibi
witness who would not lead to a defendant’s acquittal does not amount to the
ineffective assistance of counsel. Id. Petitioner also failed to provide an affidavit
from Tanita Streets as to her proposed testimony, nor has he done so for any other
witnesses. In the absence of such proof, petitioner is unable to establish that he
was prejudiced by counsel’s failure to call these witnesses to testify at trial, so as
to support the second prong of an ineffective assistance of counsel claim. See
Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007). Because there was a window
of opportunity for petitioner to have committed these crimes, petitioner was not
prejudiced by counsel’s failure to raise an alibi defense. See e.g. Fargo v. Phillips,
58 F. App’x 603, 607-08 (6th Cir. 2003). Moreover, because none of this
proposed evidence would have provided an “air-tight” alibi defense, counsel was
not ineffective for failing to present this evidence at trial. See Moore v. Parker,
425 F.3d 250, 253-54 (6th Cir. 2005).
Finally, petitioner alleges that trial counsel was ineffective by failing to
meet with him in jail prior to trial. Petitioner is not entitled to relief because he
failed to show how this prejudiced his case. See Bowling v. Parker, 344 F.3d at
506.
27
Petitioner argues that appellate counsel was ineffective for failing to raise
several of his claims on his appeal of right.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). However, court appointed counsel does not have a constitutional
duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes,
463 U.S. 745, 751 (1983). This Court has already determined that petitioner’s
underlying claims are without merit. “[A]ppellate counsel cannot be found to be
ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones,
615 F.3d 448, 452 (6th Cir. 2010)(quoting Greer v. Mitchell, 264 F.3d at 676).
Because none of these claims can be shown to be meritorious, appellate counsel
was not ineffective in his handling of petitioner’s direct appeal. Petitioner is not
entitled to habeas relief on his ineffective assistance of appellate counsel claim.
The Court will deny the petition for a writ of habeas corpus. The Court will
also deny a certificate of appealability. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree
that, the petition should have been resolved in a different manner, or that the
28
issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a
habeas petitioner’s constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims to be debatable or wrong. Id. at 484. “The district court
must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219
F. Supp. 2d 871, 885 (E.D. Mich. 2002). The Court will also deny petitioner leave
to appeal in forma pauperis, because the appeal would be frivolous. Allen v.
Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
IV. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ
29
of habeas corpus. The Court further DENIES a certificate of appealability and
and leave to appeal in forma pauperis.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 19, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
September 19, 2018.
s/Deborah Tofil
Case Manager
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?