Maison v. Brewer
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus ; and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Gershwin A. Drain. (TMcg)
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1921 Filed 11/16/20 Page 1 of 26
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HILERY NOEL MAISON,
Case No. 2:19-CV-12046
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS; AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Hilery Noel Maison (“Petitioner”), confined at the Huron Valley Women’s
Correctional Facility in Ypsilanti, Michigan, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner challenges her
convictions for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), two
counts of torture, Mich. Comp. Laws § 750.85, and two counts of first-degree child
abuse, Mich. Comp. Laws § 750.136b(2). Id. For the reasons that follow, the
petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
Petitioner and her husband were convicted following a jury trial in the St.
Clair County Circuit Court. The Court recites verbatim the relevant facts regarding
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1922 Filed 11/16/20 Page 2 of 26
Petitioner’s conviction from the Michigan Court of Appeals’ opinion, which are
presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1), see e.g.
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendants, husband and wife, were charged with and convicted of
torture, first-degree child abuse, and felony-murder with respect to the
husband’s five-year-old daughter from a prior relationship and of
torture and first-degree child abuse with respect to the husband’s threeyear-old daughter from a prior relationship. Essentially, both girls were
deprived of food, water and medical attention, and suffered from
malnutrition and dehydration which, in the five-year old’s case, also led
to severe pneumonia and caused her death. Two other children in the
household, the wife’s 10–yeard-old (sic) son from a prior relationship,
and the parties’ eighteen-month-old child together, were healthy and
People v. Maison, No. 332162, 2017 WL 5162310, at *1 (Mich. Ct. App. Nov. 7,
Petitioner’s conviction was affirmed. Id.; leave den. 501 Mich. 1062, 910
N.W.2d 275 (2018). Petitioner then filed a petition for a writ of habeas corpus,
which was held in abeyance because it contained an unexhausted claim. See Maison
v. Brewer, No. 2:19-CV-10057, 2019 WL 2433503 (E.D. Mich. June 11, 2019).
In July 2019, Petitioner filed the present habeas petition, in which she deleted
the unexhausted claim. Petitioner seeks a writ of habeas corpus on the following
Defendant’s constitutional right to due process of law, U.S.
CONST. amend. XIV; CONST. 1963, art. I, § 17 was violated when
the evidence of the two counts of 1st degree child abuse
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1923 Filed 11/16/20 Page 3 of 26
regarding MM5 and MM31 was legally insufficient to convict her
of that offense at trial and the trial court abused its discretion
when it denied the motion for a directed verdict.
Defendant was denied the effective assistance of counsel
guaranteed by the federal and state constitutions (U.S. CONST.,
AM VI; CONST. 1963, art. I, § 2) where trial counsel failed to call
the 10-year old sibling who lived in the home and reported to
police that nothing was amiss, failed to investigate or cross
examine the experts as to MM3’s health issues that could have
been caused by lead poisoning, failed to impeach Dr. Spitz on
what MM5’s weight would have been if she hadn’t been severely
dehydrated at her time of death due to pneumonia, and failed to
move for a Daubert hearing to determine the appropriate
methodology to determine starvation and how dehydration
affects that analysis.
STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
Because the victims were minors at the time of the offense, the Court will refer to
them by their initials and age only to preserve their privacy. See Fed. R. Civ. P.
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1924 Filed 11/16/20 Page 4 of 26
(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
28 U.S.C. § 2254(d).
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
411. “[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)). To obtain habeas relief in
federal court, a state prisoner is required to show that the state court’s rejection of
his or her claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103. A habeas petitioner should be denied relief as long as it
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1925 Filed 11/16/20 Page 5 of 26
is within the “realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
A. Claim # 1: Sufficiency of evidence claim
Petitioner first argues that there was insufficient evidence to support her
conviction of felony murder, two counts of first-degree child abuse, and two counts
of torture in the death of her 5-year-old step-daughter, MM5, and the near death of
3-year-old MM3. Petitioner argues that food and water were not withheld from
either child and that the expert medical testimony could not scientifically establish
that either child was “malnourished.” ECF No. 1, PageID.8–16. Petitioner also
claims that there was no evidence to show she intended to harm either child. Id. at
The Supreme Court has indicated that “the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In Re Winship, 397
U.S. 358, 364 (1970). But the crucial question on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). This inquiry does not require a court to “ask
itself whether it believes that the evidence at the trial established guilt beyond a
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1926 Filed 11/16/20 Page 6 of 26
reasonable doubt.” Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Id. at
318–19 (internal citation and footnote omitted) (emphasis in the original).
When addressing a sufficiency of evidence challenge, the reviewing court
must give circumstantial evidence the same weight as direct evidence. See United
States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). “Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.” United States v. Kelley, 461 F.3d 817,
825 (6th Cir. 2006) (internal quotation omitted); see also Saxton v. Sheets, 547 F.3d
597, 606 (6th Cir. 2008) (“A conviction may be sustained based on nothing more
than circumstantial evidence.”). Moreover, “[c]ircumstantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive than direct
evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers
v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.17 (1957)); see also Holland v.
United States, 348 U.S. 121, 140 (1954) (circumstantial evidence is “intrinsically no
different from testimonial evidence,” and “[i]f the jury is convinced beyond a
reasonable doubt, we can require no more”).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with the
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1927 Filed 11/16/20 Page 7 of 26
state court’s adjudication of that claim. Instead, a federal court may grant habeas
relief only if the state court decision was an objectively unreasonable application of
the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be mistaken, but
that they must nonetheless uphold.” Id. For a federal habeas court reviewing a state
court conviction, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 566 U.S. 650, 656 (2012). A state court’s determination that the evidence
does not fall below that threshold is entitled to “considerable deference under [the]
Under Michigan law, the elements of first-degree felony murder are:
(1) the killing of a human being;
(2) with an intent to kill, to do great bodily harm, or to create a high
risk of death or great bodily harm with knowledge that death or great
bodily harm is the probable result (i.e., malice);
(3) while committing, attempting to commit, or assisting in the
commission of one of the felonies enumerated in the felony
Matthews v. v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003) (citing to People v.
Carines, 597 N.W.2d 130, 136 (Mich. 1999)). The Michigan Supreme Court
indicated that: “[A] jury can properly infer malice from evidence that a defendant
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1928 Filed 11/16/20 Page 8 of 26
set in motion a force likely to cause death or great bodily harm.” People v. Aaron,
299 N.W.2d 304, 327 (Mich. 1980).
First-degree child abuse and torture are both considered predicate felonies
under Michigan’s felony murder statute. See Galvan v. Stewart, 705 F. App’x 392,
398 (6th Cir. 2017). “A person is guilty of child abuse in the first-degree if the
person knowingly or intentionally causes serious physical or serious mental harm to
a child.” Mich. Comp. Laws § 750.136b(2). First-degree child abuse is a specific
intent crime. Galvan, 705 F. App’x at 398 (citing People v. Maynor, 683 N.W.2d
565 (Mich. Ct. App. 2004)). Physical harm is defined under Michigan’s child abuse
statute as “any physical injury to a child that seriously impairs the child’s health or
physical well-being, including, but not limited to, brain damage, a skull or bone
fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury,
poisoning, burn or scald, or severe cut.” Mich. Comp. Laws § 750.136b(1)(f).
Under Michigan law, a person is guilty of torture if the person “with the intent
to cause cruel or extreme physical or mental pain and suffering, inflicts great bodily
injury or severe mental pain or suffering upon another person within his or her
custody or physical control.” Galvan, 705 F. App’x at 398 (citing Mich. Comp.
Laws § 750.85). “Cruel” is defined in the torture statute as “brutal, inhuman,
sadistic, or that which torments.” Mich. Comp. Laws § 750.85(2)(a). “Great bodily
injury” is defined as either:
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1929 Filed 11/16/20 Page 9 of 26
Serious impairment of a body function as that term is defined in
section 58c of the Michigan vehicle code, 1949 PA 300, MCL
One or more of the following conditions: internal injury,
poisoning, serious burns or scalding, severe cuts, or multiple
puncture wounds. Mich. Comp. Laws § 750.85(2)(c).
The Michigan Court of Appeals rejected Petitioner’s claim at great length.
The court first found that the prosecutor presented sufficient evidence to establish
that Petitioner and her husband acted with malice aforethought so as to support the
felony murder conviction, as follows:
Daniel Spitz, a forensic pathologist and the chief medical examiner for
St. Clair and Macomb Counties, conducted an autopsy on [MM5]. He
testified that the cause of [MM5]’s death was dehydration and
malnutrition, complicated by pneumonia and related sequelae due to
neglect, and that the manner of death was homicide. Dr. Spitz further
elaborated that the degree to which [MM5] was dehydrated and
malnourished indicated that these conditions had been going on for
more than just a couple of weeks. Spitz testified that [MM5] was
neglected in that she was not being given the basic needs to thrive and
that her pneumonia developed as a consequence of her debilitated state.
Nearly all persons who came in contact with [MM5] on the night of her
death testified to her being noticeably gaunt. For example, Andrew
Teichow of the Port Huron Police Department testified to [MM5] being
extremely thin with her bones sticking out and Doctor Bradley Coloia,
an emergency room physician at Lake Huron Medical Center, testified
that she was small, emaciated, and appeared malnourished.
Even if defendants had not intended to kill [MM5] when they failed to
provide her with sufficient food, water, and appropriate medical
attention, the extreme extent of her malnourishment and injuries
established that the lack of basic necessities was neither accidental nor
done without malice. Defendants set in motion a force likely to cause
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1930 Filed 11/16/20 Page 10 of 26
great bodily harm to [MM5]. At the very least, defendants were aware
of [MM5]’s painfully thin body and her medical needs and did nothing
to address these clearly obvious conditions. Viewing the facts in a light
most favorable to the prosecution, a jury could have easily inferred
malice in these circumstances.
People v. Maison, No. 332162, 2017 WL 5162310, at *2 (Mich. Ct. App. Nov. 7,
The court further concluded that the prosecution presented sufficient evidence
to establish the predicate felonies of first-degree child abuse and torture:
Since [MM5] died of dehydration and malnutrition, complicated by
pneumonia related sequelae due to neglect, and further presented with
an extraordinary amount of bruises all over her body, the injuries she
suffered plainly meet the definition of serious physical harm.
With respect to whether defendants knowingly or intentionally caused
serious physical or serious mental harm to [MM5], it is significant that
[MM5] was suffering from pneumonia, severe malnourishment, and
severe irritation in her vaginal and anal area that was bloody at the time
of her death, yet defendants did not seek medical treatment for her.
According to both paramedics responding to the home, [MM5]’s
vaginal area was red, inflamed, and, according to one, “a dried bloody
mess.” All who saw her described her appearance as emaciated,
extremely thin and gaunt, or variations thereof, and medical records
clearly established that [MM5] had been losing weight in the two years
prior to her death. Defendants’ expert testified that [MM5] was
neglected and malnourished. And, both Dr. Spitz and the emergency
room doctor who attended [MM5] testified that she had likely been
dead for a while before defendants called 911. These facts are
significant because first-degree child abuse does not require an
affirmative act and may be committed by an omission.
The second degree child abuse statutes, MCL 750.136b(3)(b) and (c),
both require that the defendant “knowingly or intentionally commits an
act.” MCL 750.136b(2), on the other hand requires only that the
defendant “knowingly or intentionally causes serious physical or
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1931 Filed 11/16/20 Page 11 of 26
serious mental harm to a child.” The Legislature’s failure to use the
term “act” in the first-degree child abuse statute indicates that firstdegree child abuse can be committed by an omission. “Omission” is
defined in the child abuse statutes as “a willful failure to provide food,
clothing, or shelter necessary for a child’s welfare or willful
abandonment of a child.” MCL 750.136b(1)(c). [MM5]’s obviously
emaciated state and lack of medical attention allows for an inference
that defendants willfully failed to provide food and care necessary for
The above case supports the conclusion that the failure to act to prevent
harm to a child (i.e., failing to call for medical assistance) with
knowledge that serious physical harm will result satisfies the
requirements of the first-degree child abuse statute. Defendants’ failure
to seek medical attention when [MM5] was losing weight or failing to
gain weight, failing to seek medical attention when she had pneumonia
and a severe inflammation of her genital area, and failing to call 911
immediately upon noting that she was becoming unresponsive all
support a conviction for first degree child abuse as to [MM5]. That
being so, the third element of felony murder has been satisfied.
Moreover, the evidence was sufficient to support the convictions for
first degree child abuse of [MM5].
In addition, the significant amount of bruises on [MM5]’s body,
coupled with her genital injury, which medical professionals described
as bloody and opined would have been painful and obvious, constitute
circumstantial evidence of defendants’ intent to cause extreme physical
and/or mental pain and suffering to [MM5]. Defendants’ denial of any
knowledge of a bathroom issue or genital injury when the dried blood
and injury was immediately obvious to emergency personnel and
officers responding to the home indicates defendants’ state of mind
with respect to [MM5] and their intent to cause her harm.
People v. Maison, 2017 WL 5162310, at *2–5 (internal citations omitted).
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1932 Filed 11/16/20 Page 12 of 26
This Court finds that the Michigan Court of Appeals’ decision was reasonable,
therefore precluding habeas relief. Under Michigan law, although proof of death by
starvation, in and of itself, is insufficient to infer the element of malice aforethought,
starvation or other omissions coupled with evidence of the appropriate intent, may
rise to the level of murder. See People v. Giddings, 426 N.W.2d 732, 733 (Mich.
Ct. App. 1988). Since it is often difficult to prove a defendant’s state of mind on
issues such as knowledge and intent, “minimal circumstantial evidence will suffice
to establish the defendant’s state of mind, which can be inferred from all the evidence
presented.” People v. Kanaan, 751 N.W.2d 57, 73 (Mich. Ct. App. 2008). “A jury
may infer consciousness of guilt from evidence of lying or deception.” People v.
Unger, 749 N.W.2d 272, 288 (Micht. Ct. App. 2008).
Here, there was sufficient evidence to support the underlying convictions of
first-degree child abuse and torture. Moreover, the Court finds that the acts or
omissions that Petitioner was convicted of were done with malice aforethought,
which support the first-degree felony murder conviction. Evidence that Petitioner
and her husband had jointly and systematically abused and starved MM5 for a
lengthy period of time; that as a five year old, the victim was extremely underweight;
that MM5 had bruising all over her body; and that her medical conditions had been
ignored was sufficient evidence to establish that Petitioner committed first-degree
child abuse and torture. Moreover, Petitioner’s acts and omissions were sufficient
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1933 Filed 11/16/20 Page 13 of 26
to support the requisite malice aforethought to support her first-degree felony murder
conviction. Galvan v. Stewart, 705 F. App’x 392, 399–400 (6th Cir. 2017).
The evidence at trial also suggested that Petitioner and her husband delayed
any efforts to seek medical attention for MM5 when she was in a dire physical state.
Petitioner’s failure to obtain prompt medical assistance when MM5 was either losing
or failing to gain weight, when she was suffering from pneumonia and a severe
inflammation of her genital area, and then failing to call 911 immediately when
MM5 became unresponsive, was sufficient evidence of malice to support
Petitioner’s felony murder and first-degree child abuse convictions. People v.
Portellos, 827 N.W.2d 725, 728 (Mich. Ct. App. 2012), overruled on other grounds
by People v. Calloway, 895 N.W.2d 165 (Mich. 2017). Accordingly, Petitioner is
not entitled to relief on this claim.
Petitioner also argues that there was insufficient evidence to support her firstdegree child abuse and torture convictions regarding MM3. The Michigan Court of
Appeals rejected this claim as follows:
When officers arrived at the home in response to a call regarding
[MM5], they found [MM3] in a state of lethargy and presenting as what
they described as emaciated. Officers testified that she had low energy
with very tight skin, her head was much larger than her body, her face
was sunken, she had a hard time standing due to her thin state, and she
appeared to be in pain when one of the Officers picked her up. [MM3]
asked for water and when Officers got her some, she drank 4–5 glasses
of water in a span of 15 minutes. She was taken to Children’s Hospital
and was admitted in the early stages of shock due to malnutrition and
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1934 Filed 11/16/20 Page 14 of 26
Dr. Nazer, a child abuse pediatrician at Children’s Hospital of
Michigan, testified that she obtained [MM3]’s full medical records and
performed a full medical exam of her on just a few days after she was
removed from defendants’ home. Dr. Nazer immediately noticed that
[MM3] was very thin and when undressed, her ribs and bones
protruded. [MM3]’s stomach was distended, her skin was dry, she had
very little fat, and her buttocks and cheeks had a wrinkled appearance
due to lack of fat. She was unsteady in walking and was weak. At 3 ½
years old, [MM3] was, according to Dr. Nazer, the weight of an eight
month old baby and the height of an 18 month-old child. Based on her
weight and presentation, [MM3] was not able to thrive, was severely
malnourished, and was neglected. Dr. Nazer performed medical testing
when she first met with [MM3] and there was no medical reason for her
to have weighed so little. Dr. Nazer evaluated [MM3]’s medical records
several months after her first evaluation of her and noted that since that
time, her weight has increased.
Also by all accounts, after she was placed in a home other than
defendants’ she ate everything put in front of her, was not a picky eater
and steadily gained weight. The circumstantial evidence and inferences
arising therefrom were sufficient to permit a jury to find that defendants
deliberately withheld food and liquid from [MM3]. Defendants’
causing [MM3] to be on the brink of death due to malnourishment and
dehydration and to be so emaciated that her weight was that of an 8
month old baby easily meets the statutory definition of physical harm
found in the child abuse statute. The evidence was thus sufficient to
find that that defendants knowingly or intentionally caused serious
physical or serious mental harm to [MM3](MCL 750.136b(2)) and thus
to find them guilty of first degree child abuse.
People v. Maison, No. 332162, 2017 WL 5162310, at *5–6 (Mich. Ct. App.
Nov. 7, 2017).
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1935 Filed 11/16/20 Page 15 of 26
Moreover, the court concluded that there was sufficient evidence to support
the torture conviction as follows:
Defendants’ intent to cause [MM3] to suffer cruel or extreme physical
pain or mental pain and suffering can be inferred from minimal
circumstantial evidence. Here, a jury could infer the intent to cause
extreme physical or mental pain and suffering from the extent of
[MM3]’s malnourishment. To all those who saw her, [MM3] was
visibly emaciated, weighing only as much as an 8 month old baby. She
had difficulty walking and even standing due to her lack of food and
water. A father and stepmother who would withhold food and then
watch as a 3 ½ year-old slowly wasted away while not seeking medical
help or giving the child to someone else to care for could easily be seen
to have intentionally caused the child’s suffering. There was more than
sufficient evidence to convict defendants of torture as it relates to
People v. Maison, 2017 WL 5162310, at *6 (internal citations omitted).
This Court finds that the Michigan Court of Appeals’ decision was reasonable,
therefore precluding habeas relief. Further, the analysis in rejecting Petitioner’s
sufficiency of evidence challenge regarding MM5 applies equally to the sufficiency
of evidence claim involving MM3.
MM3’s extreme malnourishment and
dehydration, coupled with Petitioner’s failure to seek medical assistance for these
conditions, support her convictions for first-degree child abuse and torture.
Accordingly, Petitioner is not entitled to her requested relief on her first claim.
B. Claim # 2: Ineffective Assistance of Counsel claims
Petitioner next argues that she was denied effective assistance of trial counsel.
She must satisfy a two-prong test in order to establish that she was denied effective
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1936 Filed 11/16/20 Page 16 of 26
assistance of counsel. First, a criminal defendant must demonstrate that his or her
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). There is a strong presumption that counsel’s behavior lies within
the wide range of reasonable professional assistance. Id. at 689. A defendant must
overcome the presumption that, under the circumstances, the challenged action or
inaction might be sound trial strategy. Id. Second, a criminal defendant must show
that such performance prejudiced his or her defense. Id. To demonstrate such
prejudice, a criminal defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. The Supreme Court’s holding in Strickland places the
burden on the defendant who raises a claim of ineffective assistance of counsel,
rather than the state, to show a reasonable probability that the result of the proceeding
would have been different, but for counsel’s allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard ‘was incorrect but whether
that determination was unreasonable-a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state court’s application of the
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1937 Filed 11/16/20 Page 17 of 26
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. 86, 101 (2011). 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. 652, 664 (2004)). Pursuant to the § 2254(d)(1) standard, a “doubly
deferential judicial review” applies to a Strickland claim brought by a habeas
petitioner. Id. This means that on habeas review of a state court conviction, “[A]
state court must be granted a deference and latitude that are not in operation when
the case involves review under the Strickland standard itself.” Harrington, 562 U.S.
at 101. “Surmounting Strickland’s high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Because of this “doubly deferential standard,” the Supreme Court has
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s
Harrington, 562 U.S. at 105.
Here, Petitioner first argues that trial counsel was ineffective for failing to call
her then ten-year-old son E to testify. Petitioner claims that E would have testified
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1938 Filed 11/16/20 Page 18 of 26
that MM5 would not eat, that both victims were routinely provided with food, and
that punishment did not include withholding of food.
The Michigan Court of Appeals rejected this claim as follows:
Hilery Maison contends that trial counsel was ineffective in failing to
call her 10–year-old son, [E], who was in the home on the night [MM5]
died, as a witness. She points out several statements [E] made to police
that she believes would have been beneficial to her at trial (e.g., [MM5]
was not a good eater, defendant fought with her because she would not
eat, punishments were removal of tv and spankings). However, Hilery
Maison’s stepfather testified that when they lived with him, he saw that
[MM5] was a picky eater and if she didn’t like something she would
not eat it. Andrew Maison’s grandmother also testified that Hilery was
very loving toward the kids, that [MM5] was not a big eater and was a
picky eater and that Hilery used time outs as a form of discipline. Thus,
the testimony concerning [MM5] not being a good eater and discipline
not involving the withholding of food was entered through other
witnesses. More importantly, [E] was only at the home Mondays
through Wednesdays and there were several other statements that [E]
made to the police that could have been potentially harmful to
defendant at trial. For example, [E] told police his parent’s (sic) hid
things and asked whether he would get in trouble if something bad was
found at the house. He also stated that when [MM5] “passed out” the
evening of death his parents were “slapping her face to wake her up like
they usually do.” Thus, defense counsel likely made a strategic decision
not to call [E] as a witness. Hilery Maison has not established that a
different outcome would likely have occurred had [E] been called as a
witness and counsel was thus not ineffective for failing to doing so.
People v. Maison, No. 332162, 2017 WL 5162310, at *7 (Mich. Ct. App. Nov. 7,
This Court concludes that Petitioner is not entitled to relief on this claim for
two reasons. First, the Court finds that E could have offered potentially damaging
testimony had he been called as a witness. Petitioner’s counsel’s decision to forego
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1939 Filed 11/16/20 Page 19 of 26
calling E as a defense witness out of fear that it risked opening the door to additional
incriminating testimony was a strategically defensible choice that defeats
petitioner’s claim. See Jackson v. Bradshaw, 681 F.3d 753, 761 (6th Cir. 2012).
Second, the Court finds that Petitioner was not prejudiced by counsel’s failure
to call E as a defense witness because E’s proposed testimony was cumulative of
other evidence in support of Petitioner’s claim that MM5 was a picky eater and that
Petitioner did not withhold food as a form of punishment. Wong v. Belmontes, 558
U.S. 15, 22–23 (2009); see also United States v. Pierce, 62 F.3d 818, 833 (6th Cir.
1995); Johnson v. Hofbauer, 159 F. Supp. 2d 582, 607 (E.D. Mich. 2001). Because
the jury was “well acquainted” with evidence that would have supported Petitioner’s
claim that MM5 was a picky eater and that the withholding of nourishment was not
used as a form of discipline, additional evidence in support of Petitioner’s defense
“would have offered an insignificant benefit, if any at all.” Wong, 558 U.S. at 23.
Petitioner next contends that trial counsel was ineffective for failing to crossexamine Dr. Nazer about MM3’s height. The Michigan Court of Appeals rejected
this claim as follows:
Hilery contends that cross-examining Dr. Nazer about [MM3]’s height
would have established that [MM3] was at a healthy body mass index
(BMI) for her height when Dr. Nazer assessed her. However, Dr.
Nazer’s testimony was not that [MM3] was at an unhealthy BMI for
her height. Her testimony was that [MM3] was chronically
malnourished, losing weight from 2014 on and that this chronic
malnourishment affected her height, i.e., stunted her growth. Moreover,
Dr. Nazer testified several times that [MM3]’s height was that of an 18
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1940 Filed 11/16/20 Page 20 of 26
month old and her weight that of an 8 month old, which gave the jury
an idea of her height and that it was still a significant disparity from that
which it should have been. Defendant has not overcome the
presumption that defense counsel chose not to cross-examine Dr. Nazer
concerning [MM3]’s specific height as a matter of strategy, because
counsel believed it would not have made a difference.
People v. Maison, 2017 WL 5162310, at *8.
“Courts generally entrust cross-examination techniques, like other matters of
trial strategy, to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp.
2d 629, 651 (E.D. Mich. 2002) (internal citation omitted). “Impeachment strategy
is a matter of trial tactics, and tactical decisions are not ineffective assistance of
counsel simply because in retrospect better tactics may have been available.” Id.
(internal citation omitted).
A defense counsel has no obligation to present evidence or testimony that
would not have exculpated the defendant. See Millender v. Adams, 376 F.3d 520,
527 (6th Cir. 2004) (internal quotation omitted). A defense counsel also has no duty
to present impeachment evidence that would be of marginal utility. See United
States v. Munoz, 605 F.3d 359, 381–82 (6th Cir. 2010). Here, the Court finds that
any testimony from Dr. Nazer that MM3 had a healthy BMI for her height would
have been of marginal utility. Indeed, Dr. Nazer’s overall testimony included
assertions that that MM3 was chronically malnourished; had been losing weight
from 2014 on; and that the chronic malnourishment stunted MM3’s growth. Dr.
Nazer also testified several times that MM3’s height was that of an 18 month old
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1941 Filed 11/16/20 Page 21 of 26
and her weight that of an 8 month old. In sum, Petitioner’s counsel’s failure to ask
Dr. Nazer whether MM3’s BMI was normal for her height was not deficient or
Petitioner next argues that her attorney was ineffective for failing to
investigate or cross-examine the expert medical witnesses as to whether the victims’
health issues could have been caused by lead poisoning. The Michigan Court of
Appeals rejected this claim as follows:
Hilery Maison next claims that counsel was ineffective for failing to
investigate or cross-examine the experts as to lead poisoning being a
possible explanation for [the victims’] conditions. However, the only
support for a potential investigation into lead poisoning provided by
Hilery is two progress notes from Lighthouse Family Medicine. The
first one, dated May 7, 2013, is a well child visit for [MM3], wherein it
is noted that she has a personal history of exposure to lead and states
that a lab test will be done to test for lead levels. The next note, dated
June 17, 2015, repeats the personal history of exposure to lead, with an
indication that lead levels will be checked.
A June 17, 2015, blood test for [MM3] shows no presence of lead. And,
the 18–month-old child of defendants lived in the same home as [the
victims] and was apparently healthy and of normal weight and size.
Defendant has provided no evidence that either [of the victims] did, in
fact, suffer from lead poisoning. Given the evidence, defendant has not
established that had counsel pursued lead poisoning the outcome of her
case would have been different.
People v. Maison, 2017 WL 5162310, at *8–9.
As discussed supra, a defense counsel has no obligation to present evidence
or testimony that would not have exculpated the defendant. See Millender v. Adams,
376 F.3d 520, 527 (6th Cir. 2004) (internal quotation omitted). A defense counsel
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1942 Filed 11/16/20 Page 22 of 26
is not ineffective for failing to present impeachment evidence that would be of
marginal utility. See United States v. Munoz, 605 F.3d at 381–82. There was no
evidence that either victim was suffering from lead poisoning; trial counsel’s failure
to raise this issue was therefore not ineffective.
Petitioner next contends that trial counsel was ineffective for failing to crossexamine and impeach Dr. Spitz on the methodology he used in determining MM5’s
weight, had she not been dehydrated, at the time of her death. The Michigan Court
of Appeals found that the difference in MM5’s weight, had she not been dehydrated,
Notably, Dr. Spitz did not testify that one could not or should not add
back in water weight lost through dehydration at the rate of 2.2 pounds
per liter. He also did not testify as to any particular method for doing
so. And, the 4.4 pounds that defendants’ expert testified should have
been added to [MM5]’s weight could reasonably be construed as
“negligible” given that it boosted [MM5] only from the 3rd to 5th
percentile. She was still, by both experts’ opinions, underweight and
requiring medical attention due to malnourishment. Defense counsel
testified as to what Hilery Maison thought was the “proper”
methodology for bringing [MM5] back to her pre-dehydration weight
through her expert. Counsel was thus not ineffective for failing to crossexamine Dr. Spitz on his methodology (or lack thereof).
People v. Maison, 2017 WL 5162310, at *8.
It is within the scope of appropriate trial strategy to present a rebuttal witness
rather than to cross-examine a prosecution witness. See Bruns v. Thalacker, 973
F.2d 625, 630 (8th Cir. 1992). Defense counsel presented his own expert witness,
Dr. Shuman, to address that very point. Defense counsel’s failure to cross-examine
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1943 Filed 11/16/20 Page 23 of 26
Dr. Spitz about his methodology for determining MM5’s weight and his failure to
determine her pre-dehydration weight was not ineffective. Indeed, defense counsel
presented his own expert witness, Dr. Shuman, who addressed this very issue. See
Sisco v. Huskey, 73 F. App’x 911, 912 (9th Cir. 2003); see also United States v.
Stegawski, 687 F. App’x 509, 514–15 (6th Cir. 2017) (defense counsel was not
ineffective in making strategic choice not to cross-examine prosecution’s expert in
pain management; counsel wagered that defendant, as a doctor, could walk through
the expert’s testimony point by point).
Finally, Petitioner claims that defense counsel was ineffective for failing to
move for a Daubert hearing to determine the correct scientific analysis for starvation
and the correct procedure to determine weight in that analysis. Petitioner bases her
claim on the United States Supreme Court’s decision in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993).
The Supreme Court’s holding in Daubert involves the application of the
Federal Rules of Evidence, which are not relevant to determining the
constitutionality of a state court conviction. See Norris v. Schotten, 146 F.3d 314,
335 (6th Cir. 1998); see also Anderson v. Jackson, 567 F. Supp. 2d 973, 983 (E.D.
Mich. 2008) (finding that the Daubert decision analyzing the admission of expert
testimony was concerned with the Federal Rules of Evidence and, thus, did not apply
to state criminal proceedings). Here, Petitioner would not be entitled to habeas relief
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1944 Filed 11/16/20 Page 24 of 26
on any independent claim involving the state trial court’s failure to conduct a
Daubert hearing or the Michigan Court of Appeals’ failure to order one.
The Michigan Court of Appeals also rejected petitioner’s ineffective
assistance of counsel claim as follows:
The essential issues in this matter were whether defendants
intentionally malnourished the girls and whether [MM5]’s cause of
death was malnutrition and dehydration complicated by pneumonia and
related sequela due to neglect as opined by Dr. Spitz, or pneumonia and
infection as opined by Dr. Shuman. All testimony, including that of
defendant’s expert, was that [the victims] were malnourished and
required medical attention. At 3 ½ and 5 they clearly could not provide
nourishment for themselves. A Daubert hearing would have no bearing
on defendants’ intent with respect to whether the malnourishment was
intentional or merely neglectful.
A Daubert hearing would also have no bearing on the cause of death.
Again, all parties agreed that the girls were malnourished. Further Dr.
Spitz testified that he reached his conclusion as to cause of death based
not simply on [MM5]’s weight, but also on objective observation of her
appearance and looking at the laboratory results. Notably, he did not
testify or conclude that [MM5] simply starved to death, as stated by the
defendant. Rather, she was neglected by being chronically
malnourished, which weakened her state and allowed for pneumonia
and other issues to take hold and kill her. Dr. Shuman’s difference of
opinion was that she was not malnourished enough to allow for the
pneumonia to occur as a result and that the pneumonia and infection
simply occurred, as it sometimes does in children. And, he was the only
one to give an opinion concerning whether [MM5] was “starving.” A
scientific opinion as to starvation was not given by Dr. Spitz. Counsel
was thus not ineffective for failing to failing to request a Daubert
People v. Maison, 2017 WL 5162310, at *9 (emphasis original). In light of this
analysis, the Court concludes that Petitioner failed to show that a Daubert hearing
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1945 Filed 11/16/20 Page 25 of 26
would have been successful; she thus failed to show that trial counsel was ineffective
for failing to move for such a hearing. See Flick v. Warren, 465 F. App’x 461, 465
(6th Cir. 2012).
Accordingly, Petitioner is not entitled to habeas relief on her second claim.
In sum, the Court will deny the petition for a writ of habeas corpus. The Court
will also deny a certificate of appealability. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree
that, the petition should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims to be debatable or wrong. Id. at 484. “The district court must issue or deny
a certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this Opinion, the Court will deny petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
Case 2:19-cv-12046-GAD-PTM ECF No. 9, PageID.1946 Filed 11/16/20 Page 26 of 26
assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219
F. Supp. 2d 871, 885 (E.D. Mich. 2002). Moreover, the Court will also deny
petitioner leave to appeal in forma pauperis because the appeal would be frivolous.
Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
Based upon the foregoing, IT IS ORDERED that the petition for a writ of
habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
Dated: November 16, 2020
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
A Copy of this Order was served on Hilery Noel Maison, No. 975152, Women’s
Huron Valley Correctional Facility, 3201 Bemis Road,
Ypsilanti, Michigan 48197 on
November 16, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
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?