Tucker v. DeAngelo
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue Certificate of Appealability, and Denying Leave to Appeal in Forma Pauperis. Signed by District Judge Stephen J. Murphy, III. (DPar)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
RALPH D. TUCKER,
Case No. 2:21-cv-12180
HONORABLE STEPHEN J. MURPHY, III
OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS , DECLINING
TO ISSUE CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Ralph D. Tucker is an inmate at the Woodland Center Correctional
Facility. ECF 1, PgID 2–3. He filed a pro se habeas petition under 28 U.S.C. § 2241.
Id. Petitioner challenged his conviction for two counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(c). The State responded to Petitioner’s
habeas petition and argued that the Court should refuse to consider the petition’s
merits because of the concurrent sentencing doctrine. ECF 11. For the reasons below,
the Court will consider the merits of the petition and will deny Petitioner habeas
The Court need not hold a hearing because Petitioner is proceeding pro se and is
incarcerated. E.D. Mich. L.R. 7.1(f)(1).
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A Wayne County Circuit Court judge convicted Petitioner of two counts of firstdegree criminal sexual conduct after a bench trial. ECF 1, PgID 1. Because the
Michigan Court of Appeals’ recitation of the facts is “presumed correct on habeas
review,” the Court will use that court’s opinion for background. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009).
In 1999 Petitioner gave the minor victim TT a ride home. People v. Tucker, No.
351334, 2021 WL 646820, at *1 (Mich. Ct. App. Feb. 18, 2021), lv. den. 508 Mich. 897
(2021). TT asked him if he knew where she could purchase marijuana. Id. Petitioner
said he did, and he drove her to his friend’s apartment. Petitioner and TT’s stories
Petitioner claimed that he got out of the car and purchased marijuana. Id. He
stated that the two sat in his car and smoked marijuana. Id. And that when Petitioner
asked TT if she would have sex with him, she, after initially saying no, agreed. Id.
They had sex, and petitioner drove her home. Id.
But according to TT, Petitioner “did not get out of the car to go purchase the
marijuana.” Id. Instead, he “parked the car and demanded that she take off her
clothes because they were going to have sex.” Id. TT told him she was not going to
have sex with him, but Petitioner said, “[e]ither you gon’ give it to me or I’m gon’ take
it.” Id. TT feared “that he would beat her if she did not comply,” so she “took her pants
off.” Id. The car did not have interior door handles, and she was trapped inside. Id.
Petitioner then “reclined the front bench seat of his car,” “got on top of TT,” and
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“penetrated her vagina with his penis.” Id. After Petitioner finished, TT asked if she
could leave. Id. He told her that “she could only go home after they had sex again.”
Id. Petitioner again “vaginally penetrated TT again with his penis.” Id. Only then did
Petitioner drive her home.
“When TT arrived home, she contacted the police and went to Detroit Receiving
Hospital where a sexual assault kit was performed.” Id. The Detroit Police
Department stored the sexual assault kit in its property room, but the kit remained
untested until 2014. Id. When the sexual assault kit was tested, the DNA matched
DNA found in four other sexual assault kits. Id. “Michigan State Police Detective
Regina Swift, a cold case detective assigned to the sexual assault kit task force, was
assigned to [the] case in April 2018.” Id. Swift obtained a cheek swab from Petitioner,
and his DNA matched the DNA found in TT’s sexual assault kit. Id. In 2018 police
arrested Petitioner. Id. The prosecution filed am unopposed pretrial notice of intent
and a motion under MRE 404(b) to have evidence of the other sexual assaults
admitted at defendant’s trial. Id. A judge then convicted Defendant of two counts of
first-degree criminal sexual conduct against TT after a five-day bench trial. Id.
Petitioner filed a writ of habeas corpus and sought relief on three grounds:
(1) the trial court denied him a fair trial when it erroneously allowed the prosecutor
to introduce other acts evidence under Michigan Rule of Evidence 404(b); (2) the trial
court denied him due process because his convictions were based on insufficient
evidence; (3) the trial court should have excluded his statements to law enforcement
under the Fifth Amendment because they were involuntary. ECF 1, PgID 3.
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The Court may grant a State prisoner habeas relief only if his claims were
adjudicated on the merits and the State court’s adjudication was “contrary to” or
resulted in an “unreasonable application of” clearly established law. 28 U.S.C.
§ 2254(d)(1). “A [S]tate court’s decision is contrary to . . . clearly established law if
it applies a rule that contradicts the governing law set forth in [Supreme Court
cases] or if it confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different from
[that] precedent.” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (cleaned up)
(quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).
A State court does not unreasonably apply Supreme Court precedent when
its application of precedent is merely “incorrect or erroneous,” but only when its
application of precedent is “objectively unreasonable.” Wiggins v. Smith, 539 U.S.
510, 520–21 (2003). “A [S]tate court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the [S]tate court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quotation omitted). A State court need not cite Supreme Court cases “so
long as neither the reasoning nor the result of the [S]tate-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002). Decisions by “lower federal courts may
be instructive in assessing the reasonableness of a [S]tate court’s resolution of an
issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (cleaned up).
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The Court will first address why the case will not be dismissed under the
concurrent sentencing doctrine. Second, the Court will address Petitioner’s first,
second, and third claims in order. Third, the Court will deny Petitioner a writ of
habeas corpus, a certificate of appealability, and leave to appeal in forma pauperis.
Concurrent Sentencing Doctrine
Respondent argued that the Court should decline to review Petitioner’s claims
under the concurrent sentencing doctrine. ECF 11, PgID 149–51. The concurrent
sentencing doctrine allows a federal court to decline to review habeas corpus petitions
“which challenge criminal convictions that have resulted in sentences, and other
collateral consequences, which are wholly subsumed by those conferred by other
unassailable convictions.” Wilson v. Straub, 185 F. Supp. 2d 766, 769 (E.D. Mich.
2002) (internal quotation omitted); see Benton v. Maryland, 395 U.S. 784, 789 (1969).
But a court should decline to review a habeas claim under the concurrent sentencing
doctrine only in cases when “it is clear that there would be no collateral consequences
to the petitioner and the issue does not otherwise involve a significant question
meriting consideration.” U.S. v. Hughes, 964 F.2d 536, 541 (6th Cir. 1992). “The
concurrent sentencing doctrine is a discretionary one, and courts are admittedly
hesitant to apply it.” Groves v. Meko, 516 F. App’x 507, 508 (6th Cir. 2013) (cleaned
up). The doctrine only applies “when there is no possibility of adverse consequences
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if the convictions stand.” Winn v. Renico, 175 Fed. App’x 728, 732 (6th Cir. 2006)
Respondent argued that the State trial court convicted Petitioner of firstdegree criminal sexual conduct in six different cases, to include several cases in which
he pleaded nolo contendere and never appealed. ECF 11, PgID 150. Because
Petitioner is serving between 190 and 420 in prison in four of the cases and 180 to
420 months in the other two cases, Respondent claimed that the concurrent
sentencing doctrine should bar Petitioner’s habeas petitioner. Id. But the concurrent
sentencing doctrine is inapplicable because Respondent did not show that there is no
chance of adverse collateral consequences of petitioner’s convictions. See Winn, 175
Fed. App’x at 732; Pillette v. Berghuis, 408 F. App’x 873, 886, n.8 (6th Cir. 2010).
Because the concurrent sentencing doctrine is inapplicable, the Court will consider
the merits of Petitioner’s motion and will address each of Petitioner’s claims in order.
Claim One: Other Acts Evidence
Petitioner claimed the trial court improperly admitted evidence of his other
bad acts under Michigan Rule of Evidence 404(b). ECF 1, PgID 24–27. But because
the trial court’s decision to admit the evidence is not cognizable on habeas review, the
Court will deny Petitioner habeas relief as to claim one.
It is “not the province of a federal habeas court to reexamine [S]tate-court
determinations on [S]tate-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68
(1991). On habeas review, a federal court is limited to deciding whether a State court
conviction violated the Constitution, laws, or treaties of the United States. Id. The
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“errors in the application of [S]tate law, especially rulings regarding the admission
or exclusion of evidence, are usually not to be questioned in a federal habeas
proceeding.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitioner’s claim that the State court violated Michigan Rule of Evidence
404(b), or any other provision of State law, is non-cognizable on habeas review. See
Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007). The admission of 404(b) evidence
against Petitioner at his State trial does not entitle him to habeas relief because
“[t]here is no clearly established Supreme Court precedent which holds that a State
violates due process by permitting [404(b)] propensity evidence in the form of other
bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). The Court
will thus deny Petitioner habeas relief on his first claim.
Claim Two: Sufficiency of Evidence
Petitioner argued four reasons why the evidence at trial did not support his
conviction: (1) TT was not credible; (2) TT’s testimony was inconsistent; (3) other
evidence did not corroborate TT’s testimony; and (4) Petitioner’s testimony refuted
TT’s account of the events. ECF 1, PgID 28–30.
When reviewing a sufficiency of the evidence claim, the Court must determine
“whether the record evidence could reasonably support a finding of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). The Court need not
“ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.” Id. at 319 (quotation omitted). “Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
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any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Id. (citation omitted); see U.S. v. Bronzino, 598 F.3d 276, 278
(6th Cir. 2010) (applying the Jackson standard on review of a bench trial). For the
Court, then, “the only question under Jackson is whether [the trial judge’s] finding
was so insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 566 U.S. 650, 656 (2012). Nor does the Court reweigh evidence or
redetermine the credibility of witnesses on habeas review. Marshall v. Lonberger, 459
U.S. 422, 434–35 (1983). The Court must instead defer to the trial judge’s assessment
of the credibility of witnesses because “[i]t is the province of the factfinder to weigh
the probative value of the evidence and resolve any conflicts in testimony.” Matthews
v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). Thus, if the Court is “faced with a
record of historical facts that supports conflicting inferences, [the Court] must
presume—even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution and must defer to that
resolution.” Cavazos v. Smith, 565 U.S. 1, 7 (2011) (quotation omitted).
Under Michigan law, there are two elements to a first-degree criminal sexual
conduct charge: “(1) a sexual penetration (2) that occurs during the commission of
another felony.” People v. Waltonen, 272 Mich. App. 678, 693–94 (2006); Mich. Comp.
Laws § 750.520b(1)(c). The trial court convicted Petitioner of penetrating TT while
committing the underlying felony of kidnapping. ECF 11, PgID 98.
Petitioner first contended that the evidence was insufficient to convict him
because TT’s testimony was not believable. ECF 1, PgID 18–23. TT testified that
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Petitioner sexually penetrated her without her consent during the commission of a
kidnapping, and the trial judge credited TT’s testimony. See Tucker, 2021 WL 646820,
at *1; ECF 1, PgID 23. Because the Court defers to the trial court’s credibility
findings, Petitioner’s first argument fails. See Lonberger, 459 U.S. at 434–35.
Matthews, 319 F.3d at 788.
Second, Petitioner argued that in 1999 TT told the police that it was
Petitioner’s idea to buy marijuana, but that at his trial she testified that it was her
idea to buy marijuana. ECF 1, PgID 17. Petitioner contended that the Court should
overturn his conviction because of the inconsistency. ECF 1, PgID 17, 28. But the
inconsistency does not render the trial judge’s conviction “so insupportable as to fall
below the threshold of bare rationality.” Coleman, 566 U.S. at 656. And it is the role
of the trial judge to “resolve any conflicts in testimony.” Matthews, 319 F.3d at 788.
The trial judge did not find that TT’s conflicting statements about who wanted the
marijuana destroyed her testimony. Because the Court will defer to the trial court
and the error, if any exists, is not enough to render the trial judge’s decision
“insupportable”, the Court will deny Petitioner habeas relief on his second argument.
Petitioner third alleged that TT’s use of marijuana might have affected her
memory, and the trial Court should have discounted her testimony. ECF 1, PgID 29.
But as already stated, the Court defers to the trial court’s credibility findings. See
Lonberger, 459 U.S. at 434–35. And besides, Petitioner admitted that “the parties did
not offer any testimony about” the effect marijuana may have had on TT. ECF 1, PgID
29. Because the Court will defer to the trial court’s determination of witness’
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credibility and Petitioner did not exhaust his claim in State Court, Petitioner’s third
argument fails. See Lonberger, 459 U.S. at 434–35.
Fourth, Petitioner contended that his testimony rendered the conviction
unconstitutional. ECF 1, PgID 29. But the Court will deny him relief on his fourth
argument for the same reason that it denied him relief on his first and third
arguments: the Court must defer to the trial court’s finding of credibility. See
Lonberger, 459 U.S. at 434–35. The trial court found Petitioner’s testimony less
credible than TT’s testimony. Tucker, 2021 WL 646820, at *1. The Court will thus
deny Petitioner habeas relief on his fourth argument. See Brown v. Davis, 752 F.2d
1142, 1144–45 (6th Cir. 1985) (holding the testimony of a sexual-assault victim is
sufficient to support a conviction).
In sum, the Court will deny Petitioner habeas relief on his second claim that
his conviction was not supported by sufficient evidence because Petitioners’
conviction was supported by sufficient evidence and one of Petitioner’s arguments to
the contrary was not properly presented before the Court.
Voluntariness of the Standards
The Court will deny Petitioner relief on his Fifth Amendment claim because
the trial court did not violate his constitutional rights. Petitioner claimed that the
trial court should have suppressed his statement to Detectives Swift and Farrah
because he was tired and groggy due to the ingestion of prescription medications
before making the statement and thus the statement was involuntary. ECF 1, PgID
33–34. When the Michigan Court of Appeals reviewed the same question, the court
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held that, “when considering the totality of the circumstances, it was not an abuse of
discretion for the trial court to conclude that defendant’s statement was admissible
because defendant voluntarily, intelligently, and knowingly waived his Miranda
rights and spoke to the detectives.” Tucker, 2021 WL 646820, at *6.
“Findings of fact of the [S]tate courts are presumed to be correct. The applicant
[bears] the burden of rebutting the presumption of correctness by clear and
convincing evidence.” Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001) (quotation
omitted). A factual determination about the voluntariness of a statement is entitled
to the same presumption of correctness. Miller v. Fenton, 474 U.S. 104, 112 (1985).
Likewise, whether a defendant understood his Miranda rights is a question of fact
underlying the question of whether waiver of his rights was knowing and intelligent.
Williams v. Jones, 117 F. App’x 406, 412 (6th Cir. 2004). “Thus, on federal habeas
review, a federal court has to presume that the State court’s factual finding that a
defendant fully understood what was being said and asked of him was correct unless
the petitioner shows otherwise by clear and convincing evidence.” Id.
A defendant’s waiver of his Miranda rights is considered valid if it is voluntary,
knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966).
“[C]oercive police activity is a necessary predicate to the finding that a confession is
not voluntary” Colorado v. Connelly, 479 U.S. 157, 167 (1986) (cleaned up). And a
defendant’s deficient mental condition, by itself, cannot render a waiver involuntary.
Id. at 164–65. Likewise, in determining whether a confession is voluntary, the
ultimate question for a court is “whether, under the totality of the circumstances, the
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challenged confession was obtained in a manner compatible with the requirements of
the Constitution.” Miller, 474 U.S. at 112.
Petitioner’s primary contention is that the Court should have suppressed his
statements should because he was groggy from ingesting several prescription
medications and from his dialysis. ECF 1, PgID 33. But both detectives testified that
Petitioner did not appear to be under the influence because he was able to effectively
communicate with them throughout the interview. Tucker, 2021 WL 646820, at *6.
And Petitioner never informed the detectives that he needed help, a break, was
having a diabetic attack, was not feeling well, or that he was feeling groggy or tired
because of his medications. See id. Most importantly, Petitioner failed to show that
the detectives engaged in coercive actions during the interrogation. See id.
Petitioner presented no evidence that his grogginess prevented him from
understanding his Fifth Amendment rights. See id. Based on the totality of the
circumstances, it was objectively reasonable for the Michigan Court of Appeals to hold
that Petitioner’s statement to the police was voluntary. See McCalvin v. Yukins, 444
F.3d 713, 720 (6th Cir. 2006). The officers advised Petitioner of his Miranda rights.
Tucker, 2021 WL 646820, at *6. The officers did not deny Petitioner food or water
during the interview. Id. The officers did not use threats or violence. Id. And the judge
made a factual determination that the medication did not affect Petitioner’s cognitive
ability at the time of the interrogation. Id. The Court will thus deny Petitioner relief
on his third claim because the Michigan courts’ determination is reasonable and is
entitled to a presumption of correctness and because Petitioner did not rebut that
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presumption by clear and convincing evidence. See Fenton, 474 U.S. at 112; Mitchell,
271 F.3d at 656.
CERTIFICATE OF APPEALABILITY
In sum, the Court will deny the habeas petition as to all three of Petitioner’s
claims. To appeal the Court’s decision, Petitioner must obtain a certificate of
appealability, which requires him to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner must show “that reasonable
jurists could debate whether” the Court should have resolved the § 2254 petition “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)
(internal quotation marks and quotation omitted). Jurists of reason would not debate
the Court’s denial of the petition. The Court will thus deny a certificate of
Last, the Court will deny Petitioner leave to appeal in forma pauperis because
he cannot take an appeal in good faith. See Fed. R. App. P. 24(a); 28 U.S.C.
WHEREFORE, it is hereby ORDERED that the habeas petition  is
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
This is a final order that closes the case.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: November 21, 2022
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on November 21, 2022, by electronic and/or ordinary mail.
s/ David P. Parker
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