McClure v. Schroeder
Filing
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OPINION and ORDER Denying the 1 Petition for a Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL MCCLURE II,1
#392562,
Petitioner,
Civil Action No. 20-CV-11337
vs.
HON. BERNARD A. FRIEDMAN
SARAH SCHROEDER,
Respondent.
______________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, an inmate at the Alger Correctional Facility in Munising, Michigan,
has filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his conviction for two counts of first-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520b(1)(A), and one count of second-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520c(1)(A). For the following reasons, the Court shall deny the petition, deny a
certificate of appealability, and deny leave to proceed in forma pauperis on appeal.
Petitioner’s conviction arises from multiple sexual assaults upon his friend’s
eight-year-old daughter. He was convicted following a bench trial in the Wayne County Circuit
Court. The Michigan Court of Appeals summarized the facts of this case as follows:
The victim’s testimony established all the requisite elements to
convict defendant of both CSC-I and CSC-II. First, the victim
testified that she was born in 2008, thus, making her eight years
old at the time of the assault. The victim testified that defendant
first penetrated her when defendant put his finger inside of her
1
In the instant habeas petition, petitioner signs his first name as “Michael,” rather than “Micheal. See Pet. at 7.
However, the Michigan Department of Corrections records list petitioner’s first name as “Micheal.” See
https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=392562 (last visited Apr. 27, 2021).
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genital area. The victim then testified that defendant engaged in
sexual contact with her when defendant put his penis in her hand.
Finally, the victim testified that defendant penetrated her when
defendant put his penis in her mouth.
People v. McClure, No. 340030, 2019 WL 637819, at *2 (Mich. Ct. App. Feb. 14, 2019).
Petitioner seeks a writ of habeas corpus on the following grounds:
Where the child witness testified that her aunt told her that it was
important to say that petitioner “did a certain thing,” the doubts
raised by that testimony so preponderate against the verdict that
the verdict cannot stand, and a new trial should be ordered for
petitioner.
Trial counsel rendered constitutionally ineffective assistance under
the Sixth and Fourteenth Amendments through failure to call as a
witness the aunt of the child, to inquire of the aunt about her
conversations with any possible coaching of the young
complainant.
Pet. at 10.
Section 2254(d) 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.
A state court’s decision 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
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indistinguishable facts. See 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) (internal quotation marks and citation omitted). To obtain
habeas relief in federal court, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103.
I. Claim 1: Great Weight of the Evidence/Insufficient Evidence
Petitioner argues that he is entitled to habeas relief because the guilty verdict went
against the great weight of the evidence. “A federal habeas court . . . has no power to grant
habeas relief on a claim that a state conviction is against the great weight of the evidence.”
Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); see also Nash v. Eberlin, 258 F.
App’x 761, 764 n.4 (6th Cir. 2007) (noting that “a manifest-weight-of-the-evidence argument is
a state-law argument”). A claim that a verdict went against the great weight of the evidence “is
not of constitutional dimension for habeas corpus purposes unless the record is so devoid of
evidentiary support that a due process issue is raised.” Cukaj, 305 F. Supp. 2d at 796. “The test
for habeas relief is not whether the verdict was against the great weight of the evidence, but
whether there was any evidence to support it.” Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D.
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Mich. 2002). If “there was sufficient evidence to convict petitioner of these crimes, the fact that
the verdict may have gone against the great weight of the evidence would not entitle him to
habeas relief.” Id.
To the extent that petitioner argues that the evidence was insufficient to convict,
he is not entitled to habeas relief. It is beyond question 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).
The crucial question on review of the sufficiency of the evidence underlying 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).
[T]his inquiry does not require a court to ask itself whether it
believes that the evidence at the trial established guilt beyond a
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 quotation marks, citation, and footnote omitted; emphasis in the original).
The standard recognized by the Supreme Court in Jackson applies to bench trials and jury trials
alike. See United States v. Bronzino, 598 F.3d 276, 278 (6th Cir. 2010) (applying the Jackson
standard following a bench trial).
A federal habeas court “may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees with the state
court. The federal court instead may do so only if the state court decision was objectively
unreasonable.” 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. “[T]he
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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 AEDPA.” Id.
Finally, a federal habeas court does not
reweigh the evidence or redetermine the credibility of the
witnesses whose demeanor has been observed by the trial court. It
is the province of the factfinder, here the state trial court, to weigh
the probative value of the evidence and resolve any conflicts in
testimony. An assessment of the credibility of witnesses is
generally beyond the scope of federal habeas review of sufficiency
of evidence claims. There mere existence of sufficient evidence to
convict therefore defeats a petitioner’s claim.
Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (citations omitted).
Petitioner’s main contention is that the verdict went against the great weight of
the evidence because the victim’s testimony was not credible. Petitioner points to the victim’s
statement that her aunt told her it was important for her to testify that petitioner did “a certain
thing.” Pet. at 10. The Michigan Court of Appeals rejected this claim, deferring to the trial
court judge’s finding that the victim was credible and that her testimony was corroborated by
other evidence, including petitioner’s own confession. McClure, 2019 WL 637819, at *2-3.
Similarly, this Court must defer to the trial court’s assessment of and conclusions regarding the
credibility of witnesses. See Abramajtys, 319 F.3d at 788.
Petitioner also argues that the verdict was against the great weight of the evidence
because the victim’s testimony was uncorroborated. Petitioner’s claim is without merit, as there
was additional testimony corroborating that of the victim. See McClure, 2019 WL 637819, at *2
and *4. Regardless, “the testimony of a single, uncorroborated prosecuting witness or other
eyewitness is generally sufficient to support a conviction,” so long as the prosecution presents
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evidence which establishes the elements of the offense beyond a reasonable doubt. Brown v.
Davis, 752 F.2d 1142, 1144-45 (6th Cir. 1985). “[T]he testimony of [the] victim alone is
sufficient to support a defendant’s conviction.” United States v. Howard, 218 F.3d 556, 565 (6th
Cir. 2000). For these reasons, the Court concludes that petitioner is not entitled to habeas relief
on his claim of insufficient evidence.
II. Claim 2: Ineffective Assistance of Counsel
Petitioner next claims that “[t]rial counsel rendered constitutionally ineffective
assistance.” Pet. at 10. To prevail on habeas review, petitioner must show that the state court’s
conclusion regarding his ineffective assistance claim “was contrary to or an unreasonable
application of clearly established federal law.” Knowles v. Mirzayance, 556 U.S. 111, 114
(2009). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a twopronged test for claims of ineffective assistance of counsel: the petitioner must show (1) that
counsel’s performance was deficient, and (2) that the deficient performance prejudiced the
defense. See id. at 687.
In assessing Strickland’s first prong, the Supreme Court has stated that
[j]udicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. . . . Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.
Id. at 689 (internal quotation marks and citations omitted).
Petitioner argues that trial counsel was ineffective for failing to call the victim’s
aunt to testify at trial, presumably to impeach the victim’s testimony or to testify that she
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coached the victim with respect to her testimony. A trial attorney’s decision as to which
witnesses to call, if any, is generally a matter of trial strategy that falls within the attorney’s
broad professional discretion. See id.; United States v. Foreman, 323 F.3d 498, 503-04 (6th Cir.
2003) (concluding that trial counsel’s decision not to call various witnesses was “reasonable trial
strategy”). Moreover, petitioner is not entitled to relief on his claim because he failed to provide
to the Michigan courts any proffer as to the aunt’s expected testimony. In the absence of any
supporting evidence, petitioner is unable to establish that trial counsel’s failure to call the
victim’s aunt constituted deficient performance, or that petitioner was prejudiced by this
decision. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007). Conclusory allegations of
ineffective assistance of counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Further, this Court is presently unable to entertain any proffer regarding the
testimony the victim’s aunt might provide. The Supreme Court has held that habeas review
under § 2254(d) is “limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The Court is thus
precluded from considering any new evidence in support of petitioner’s ineffective assistance of
trial counsel claim, even if such evidence exists. See Campbell v. Bradshaw, 674 F.3d 578, 590
n.3 (6th Cir. 2012) (declining to consider testimony taken in a federal evidentiary hearing
because it was not part of the state court record).
The Michigan Court of Appeals rejected petitioner’s ineffective assistance of
counsel claim, finding that
nothing in the record shows that the testimony of the victim’s aunt
would have definitively changed the outcome of trial. The record
merely establishes that the victim’s aunt helped the victim to
practice testifying for trial. While the victim did testify on cross7
examination that her aunt had told her that it was important for the
victim to say that defendant did “a certain thing,” the victim also
testified that her aunt did not tell her what to say and that her
testimony accurately described what happened between her and
defendant. The testimony does not conflict. The trial court was
aware of the aunt’s influence but still determined that the victim
was a credible witness. Thus, the victim’s testimony is not devoid
of credibility merely because of those statements, and defendant
has not established, based on the trial court record, that the
testimony of the victim’s aunt would have deprived the victim’s
testimony of all credibility. Defendant was not prejudiced by the
trial court’s determination of the victim’s testimony because other
witnesses corroborated the victim’s testimony. The record does not
establish that calling the victim’s aunt to testify would have
provided defendant with a substantial defense that would have
changed the outcome of the trial. Therefore, defendant’s trial
counsel was not ineffective.
McClure, 2019 WL 637819, at *4.
Petitioner has not shown that the Michigan Court of
Appeals’ resolution of his ineffective assistance claim was contrary to or an unreasonable
application of Supreme Court precedent. Therefore, he is not entitled to habeas relief on his
claim of ineffective assistance of counsel. Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus is denied.
IT IS FURTHER ORDERED that no certificate of appealability shall issue, as
petitioner has failed to make “a substantial showing of denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
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IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma
pauperis because no appeal could be taken in good faith. See 28 U.S.C. § 1915(a)(3).
Dated: April 29, 2021
Detroit, Michigan
s/Bernard A. Friedman
Bernard A. Friedman
Senior United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented
parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the
Notice of Electronic Filing on April 29, 2021.
Michael McClure #392562
Alger Maximum Correctional Facility
N6141 INDUSTRIAL PARK DRIVE
MUNISING, MI 49862
s/Johnetta M. Curry-Williams
Case Manager
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