Pittman v. Bauman

Filing 22

OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Declining, to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COLLIN D. PITTMAN,
Petitioner,
Civil Case No. 14-14405
Honorable Linda V. Parker

v.
STEVE RIVARD,
Respondent.
____________________________/

OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
I.

INTRODUCTION
Michigan prisoner Collin D. Pittman (“Petitioner”) has filed a pro se habeas

corpus petition challenging his Oakland County convictions for two counts of
criminal sexual conduct. Petitioner raises twelve claims regarding probable cause
to arrest him, a state deadline for trying him, the admission of certain evidence at
trial, the prosecutor’s conduct, the trial court’s rulings and jury instructions, the
assistance provided by trial and appellate counsel, his sentence, and newly
discovered evidence. The State urges the Court to deny the petition on grounds
that Petitioner’s claims are procedurally defaulted, are not cognizable on habeas
review, or are meritless. Additionally, the State contends that the state courts’

rejection of Petitioner claims was objectively reasonable. The Court agrees that
Petitioner’s claims do not warrant relief. Accordingly, the petition will be denied.
II.

BACKGROUND
Petitioner’s convictions arose from criminal sexual conduct involving his

niece, the victim, when she was about fourteen years old.
At Petitioner’s jury trial in Oakland County Circuit Court, sixteen-year-old
MJ1 testified that she was living in a residential center for juvenile delinquents.
She previously lived at Children’s Village in Pontiac, where she and the victim
became friends. At some point during the girls’ stay at Children’s Village, the
victim confided in her about something. MJ advised the victim to tell a counselor
about the matter, and the victim took her advice. MJ admitted that she was
rewarded for good behavior while confined as a juvenile delinquent and that she
would prefer living in the community, but she denied being promised anything for
her testimony.
Yolanda Stafford testified that she was a youth specialist at Oakland County
Children’s Village where she met MJ and the victim. According to Stafford, one
night at bedtime, the victim informed her of something that Ms. Stafford had to
report. The victim did not provide any details or a name, but she did mention that
1

The Court is referring to the witness by her initials because she was a juvenile at
the time.
2

the person was related to her. Ms. Stafford’s supervisor completed a form about
the matter, and the matter was recorded on a log.
The victim testified that her date of birth was October 21, 1990, and that she
was almost nineteen years old. She explained that, when she was about fourteen
years old, she and her brother stayed at her grandfather’s house while her mother
was in the process of moving. Petitioner was her uncle, and he was also living at
her grandfather’s house at the time. One night, her grandfather was sleeping
upstairs, and her brother was asleep in a back room. She was sleeping on a couch
in the living room of the house when her uncle approached her and laid on top of
her. He used his private part to touch her “butt,” and he used his hand to touch
both her “butt” and her private part. Then he took off her underpants and inserted
his penis in her vagina. Afterward, he got up and went upstairs. She went to the
bathroom and noticed blood on her underwear and nightgown. She spent the rest
of the night in her brother’s room with the door locked.
The victim did not disclose the incident to her grandfather or brother
because she did not think they would believe her, and she did not tell her mother
because her uncle was her mother’s brother, and her mother would have been hurt
by the information. She ultimately revealed the incident to MJ at the Children’s
Village when MJ informed her about what had happened to her. She went back to

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her grandfather’s house many times after the incident with her uncle, but her uncle
would act as though nothing had happened.
On cross-examination, the victim expressed some uncertainty about the date
of the crimes. She also admitted that, when Petitioner got locked up, she used to
write letters to him, and in one letter she wrote that she loved him and missed him.
The victim explained that her mother pressured her to write to Petitioner and that
she had not wanted her mother to know what Petitioner had done to her.
The victim’s mother, Eugenia Pittman, testified that Petitioner and the
victim were very close at one time. Their relationship deteriorated at some point,
and in 2007, the victim disclosed something to Ms. Pittman. Regarding Petitioner,
Ms. Pittman testified that he could be good at times and bad at times. One time in
2005, he became violent with a person in the victim’s presence. He beat one of his
cousins and threatened to kill someone.
Sarah Killips testified as an expert in forensic interviewing and the
characteristics of child sexual assault victims. She interviewed the victim on
January 23, 2008, when the victim was seventeen years old. The victim made an
allegation of sexual abuse by an uncle. Ms. Killips opined that it was common for
children to delay disclosure of sexual abuse.

4

Petitioner chose not to testify, but he presented Detective Paul McDougal
and his brother Anthony Pittman as defense witnesses. Detective McDougal
testified that he wrote in his incident report that the crimes occurred between the
months of October and November 2005. He admitted that he did not go in the
house where the crimes supposedly occurred and that he did not interview the
victim or the victim’s mother, brother, or grandfather. He also did not know
whether Petitioner was in custody on October 4, 2005.
Petitioner’s brother, Anthony Pittman, testified that he was living with his
father and nephew in 2004 and 2005 and that the victim may have spent a night or
two there when she did not have a ride. Anthony denied hearing any commotion
that would suggest the victim had been assaulted, and he did not see any signs that
anything inappropriate had occurred at the house. Anthony described Petitioner as
a nice guy who was helpful. He admitted that Petitioner had gone to prison more
than once for drugs, but he did not think that Petitioner had a drug problem. He
was unaware of a conviction for assault and battery, and he did not think Petitioner
had a history of violent behavior. He also did not see a violent outburst between
Petitioner and one of his nephews.
The parties stipulated that Petitioner was in custody from July 13, 2004 to
December 29, 2004, from August 19, 2005 to September 7, 2005, and from

5

October 4, 2005 to the present. They further stipulated that Petitioner was not in
custody from December 29, 2004 to August 10, 2005 and from September 7, 2005
to October 4, 2005.
On October 16, 2009, the jury found Petitioner guilty, as charged, of one
count of first-degree criminal sexual conduct in violation of Michigan Compiled
Laws § 750.520b(1)(b)(ii), and one count of second-degree criminal sexual
conduct in violation of Michigan Compiled Laws § 750.520c(1)(b)(ii). The trial
court sentenced Petitioner as a habitual offender to concurrent terms of
imprisonment of twenty-two years, nine months to forty years.
On appeal from his convictions, Petitioner argued: (1) he was denied a fair
trial by extensive evidence that he had been in prison; (2) he was denied due
process and a fair trial by evidence that he had engaged in violent behavior, the
prosecutor’s statement that Petitioner had been convicted of assault and battery,
evidence that he had gone to prison for a drug offense, and the prosecutor’s
argument regarding illegal drugs; (3) the evidence was insufficient to support his
convictions beyond a reasonable doubt; (4) the time limits of Michigan Compiled
Laws § 780.131(1) were violated; (5) offense variable four of the Michigan
sentencing guidelines was improperly scored at ten points; and, (6) defense counsel
deprived him of effective assistance by failing to make proper objections and a

6

record. These six claims form Petitioner’s first six grounds for federal habeas
relief.
The Michigan Court of Appeals rejected Petitioner’s claims and affirmed his
convictions in an unpublished, per curiam decision. People v. Pittman, No.
297391, 2011 WL 2555389 (Mich. Ct. App. June 28, 2011). On November 21,
2011, the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issues. People v. Pittman, 805 N.W.2d 202 (Mich. 2011).
In June 2012, Petitioner filed a motion for relief from judgment in the state
trial court in which he raised the following arguments: (1) the trial court abused its
discretion and deprived him of a fair trial by failing to dismiss his case for a
violation of the State’s 180-day rule, failing to appoint substitute counsel despite a
conflict of interest, improperly instructing the jury on “mental anguish,” failing to
grant a directed verdict of acquittal, and exceeding the sentencing guidelines
without substantial and compelling reasons; (2) the prosecutor deprived him of a
fair trial by coaching and intimidating witnesses, using perjured testimony, and
shielding the victim from him; (3) the police lacked probable cause to arrest him;
and, (4) trial counsel was ineffective for failing to investigate witnesses and consult
Petitioner. These claims form the basis for Petitioner’s seventh through tenth
habeas claims. The trial court denied Petitioner’s motion because he previously

7

raised, or could have raised, the claims on appeal and because Petitioner had not
met his burden of proving entitlement to relief under Michigan Court Rule
6.508(D). See People v. Pittman, No. 09-226631-FC, Op. and Order (Oakland
Cty. Cir. Ct. Nov. 21, 2013).
Petitioner appealed the trial court’s decision, but the Michigan Court of
Appeals denied leave to appeal for the reasons given by the trial court: Petitioner
had alleged grounds for relief which were previously decided against him or could
have been raised on appeal and because he failed to establish entitlement to relief
under 6.508(D). People v. Pittman, No. 320131 (Mich. Ct. App. Apr. 18, 2014).
Petitioner did not appeal the Michigan Court of Appeals’ decision. See Affidavit
of Larry Royster, Clerk of the Michigan Supreme Court, ECF No. 8-14.
In a post-conviction motion for an evidentiary hearing, Petitioner purported
to have newly discovered impeachment evidence. He also alleged that he was
denied the effective assistance of appellate counsel. These arguments comprise
Petitioner’s eleventh and twelfth habeas claims. The trial court treated Petitioner’s
motion as a successive motion for relief from judgment and denied the motion.
People v. Pittman, No. 2009-226631-FC, Order (Oakland Cty. Cir. Ct. Feb. 27,
2014). Petitioner raised the same two issues in the Michigan Court of Appeals,
which dismissed Petitioner’s appeal under Michigan Court Rule 7.203(F)(1),

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because Petitioner was attempting to appeal the denial of a successive motion for
relief from judgment. People v. Pittman, No. 322425 (Mich. Ct. App. July 21,
2014).
Petitioner appealed to the Michigan Supreme Court, which denied leave to
appeal because Petitioner’s motion was prohibited by Michigan Court Rule
6.502(G), the rule governing second or successive motions for relief from
judgment. People v. Pittman, 861 N.W.2d 899 (Mich. 2015). On September 9,
2015, the Michigan Supreme Court denied Petitioner’s motion for reconsideration.
People v. Pittman, 868 N.W.2d 471 (Mich. 2015).
Finally, on November 17, 2014, Petitioner filed his habeas corpus petition.
Although the State argues in an answer to the habeas petition that some of
Petitioner’s claims are procedurally defaulted, a procedural default is not a
jurisdictional matter. Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally, to
prevail on procedurally defaulted claims, a petitioner “must establish cause and
prejudice for the defaults” and “also show that the claims are meritorious.” Babick
v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). In the interest of efficiency, the
Court will bypass the alleged procedural defaults and go directly to the merits of
Petitioner’s claims, as the claims lack substantive merit, and “the cause-andprejudice analysis adds nothing but complexity to the case.” Id.

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III.

STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a
state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(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.

28 U.S.C. § 2254(d).
“[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. Rather, that application
must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-

10

court decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).
“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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on 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.
Furthermore, a state court’s determination of a factual issue is presumed to
be correct unless the petitioner rebuts the presumption of correctness with clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d
224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review
under § 2254(d)(1) 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).

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IV.

ANALYSIS
A.

Claim One: Inadmissible Evidence of Imprisonment

Petitioner alleges in claim one that he was denied a fair trial by extensive
evidence that he had been in prison. As examples of this, Petitioner points to: the
prosecutor’s comments during opening statements that the crimes occurred when
Petitioner was home after being away (10/15/09 Trial Tr., Afternoon Session, at 14
and 18, ECF No. 8-5 at Pg ID 297, 301); defense counsel’s reference to
correspondence between Petitioner and the victim (id. at 25, Pg ID 308); the
victim’s testimony that, after the crime, Petitioner “was still out” and “still around”
(id. at 119, Pg ID 402); the victim’s testimony about her correspondence with
Petitioner while Petitioner was in prison (id. at 124, Pg ID 407); defense counsel’s
question to Detective McDougal as to whether Petitioner was in custody on
October 4, 2005 (10/16/09 Trial Tr. at 124-28, ECF No. 8-6 at Pg ID 541-45); and
the prosecutor’s closing argument that the range of dates when the crimes occurred
was based on times when Petitioner was not in custody (id. at 145-46, Pg ID 56263).
The Michigan Court of Appeals determined that some of these references to
Petitioner’s incarceration were not prejudicial and that Petitioner opened the door

12

to other comments about his prior incarceration. This Court agrees for the
following reasons.
First, as noted by the Michigan Court of Appeals, the jury would not
necessarily have understood the comments and testimony about Petitioner being
away, “still out,” or “still around” to mean that Petitioner had been in prison.
Second, it was defense counsel who elicited testimony that the victim had written
to Petitioner in prison. It was also defense counsel who asked Detective
McDougal whether Petitioner was in custody on October 4, 2005. Because
defense counsel invited the claimed errors, Petitioner may not claim now that the
errors deprived him of a fair trial. See Fields v. Bagley, 275 F.3d 478, 486 (6th
Cir. 2001) (“When a petitioner invites an error in the trial court, he is precluded
from seeking habeas corpus relief for that error.”)
Finally, part of Petitioner’s defense was that he could not have committed
the crimes because he was in custody at the time. The Court, therefore, concludes
that the references to Petitioner being in custody did not violate his right to a fair
trial. The references were either too vague to be prejudicial or they were invited
errors that were meant to support the defense theory.

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B.

Claim Two: Prosecutorial Misconduct

Petitioner alleges in claim two that he was denied due process and a fair trial
when the prosecutor did the following: elicited Ms. Pittman’s testimony that
Petitioner previously engaged in violent behavior (10/16/05 Trial Tr. at 21-24,
ECF No. 8-6 at Pg ID 438-39); asked Petitioner’s brother whether Petitioner had
been convicted of assault and battery and had gone to prison for a drug offense (id.
at 113-14, Pg ID 530-31); and stated during her closing argument that Petitioner
may have committed the crimes in question while he was under the influence of
illegal drugs (id. at 124, Pg ID 541).
1.

Clearly Established Federal Law

“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas
corpus proceeding. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). “[T]he
touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,
455 U.S. 209, 219 (1982). The relevant question is whether the prosecutor’s
conduct infected the trial with such unfairness as to make the resulting conviction a
denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Because that standard is “a very general one,” courts have
considerable leeway in resolving such claims on a case-by-case basis.
Parker v. Matthews, 567 U.S. 37, 48, 132 S.Ct. 2148, 183 L.Ed.2d 32
(2012) (per curiam). That leeway increases in assessing a state court’s
ruling under AEDPA. [Courts] “cannot set aside a state court’s
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conclusion on a federal prosecutorial-misconduct claim unless a
petitioner cites . . . other Supreme Court precedent that shows the state
court’s determination in a particular factual context was
unreasonable.” Trimble [v. Bobby, 804 F.3d 767, 783 (6th Cir.
2015)].
Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th Cir. 2017).
2.

Application

Testimony from the victim’s mother that Petitioner had previously engaged
in violent behavior was proper because it explained why the victim may have
feared Petitioner and delayed disclosing what Petitioner had done to her. This was
relevant evidence, and according to the Michigan Court of Appeals, it was offered
for a proper purpose under the Michigan Rules of Evidence. Pittman, 2011 WL
2555389, at *2.
Likewise, the prosecutor’s questions about Petitioner’s prior convictions for
assault and battery and a drug offense were proper. Because Petitioner’s brother
initially vouched for Petitioner’s character, the prosecutor was permitted to crossexamine him about Petitioner’s specific acts of misconduct. According to the
Michigan Court of Appeals, the testimony was admissible to rebut the brother’s
favorable character evidence and to test his knowledge and candor. The state
court’s interpretation of state law binds this Court sitting in habeas corpus,
Bradshaw v. Richey, 546 U.S. 74, 76 (2005), because “it is not the province of a

15

federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The prosecutor’s comment during closing arguments that Petitioner may
have committed the crimes in question while he was under the influence of illegal
drugs was not improper for a different reason. The comment was a reasonable
inference from the victim’s testimony that Petitioner was not acting normally on
the night in question (10/15/09 Trial Tr., Afternoon Session, at 91-92, ECF No. 8-5
at Pg ID 374-75) and that he had acted as though she was not his niece and did not
care about what he was doing (id. at 83-84, Pg ID 366-67). Prosecutors may
“forcefully assert inferences from the evidence.” Cristini v. McKee, 526 F.3d 888,
901 (6th Cir. 2008). Moreover, the Court cannot conclude that the prosecutor’s
conduct infected the trial with such unfairness as to make the resulting conviction a
denial of Petitioner’s due process rights.
To conclude, the disputed comments and questions did not deprive Petitioner
of a fair trial, and the state appellate court’s rejection of Petitioner’s claim was not
unreasonable. Furthermore, to the extent Petitioner is complaining that the trial
court erred by permitting the prosecutor to introduce evidence of Petitioner’s
propensity to commit crime, his claim is not cognizable on habeas review. “There
is no clearly established Supreme Court precedent which holds that a state violates

16

due process by permitting propensity evidence in the form of other bad acts
evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Thus, “there is no
Supreme Court precedent that the trial court’s decision could be deemed ‘contrary
to’ under AEDPA.” Id. at 513. Petitioner has no right to relief on the basis of his
prosecutorial-misconduct claims.
C.

Claim Three: Insufficient Evidence

Petitioner alleges next that the evidence was insufficient to support his
convictions beyond a reasonable doubt. The Michigan Court of Appeals
concluded on direct review of Petitioner’s claim that his challenge to the
sufficiency of the evidence failed.
1.

Clearly Established Supreme Court Precedent

The United States Supreme Court has held “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). Following Winship, the critical inquiry on
review of a challenge to the sufficiency of the evidence supporting a criminal
conviction is
whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this 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
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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. This familiar standard
gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).
The Supreme Court has “made clear that Jackson claims face a high bar in
federal habeas proceedings because they are subject to two layers of judicial
deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, it
is the responsibility of the jury to decide what conclusions should be drawn from
the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)
(per curiam)). “And second, on habeas review, ‘a federal 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.’” Id.
(quoting Smith, 565 U.S. at 2); see also Tanner v. Yukins, 867 F.3d 661, 672 (6th
Cir. 2017) (explaining that “two layers of deference apply [to a sufficiency-of-theevidence claim], one to the jury[’s] verdict, and one to the state appellate court”).

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2.

Application

The Jackson standard “must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Jackson, 443
U.S. at 324 n.16. To prove first-degree criminal sexual conduct, as charged in this
case, the prosecutor had to prove that Petitioner was related to the victim and
sexually penetrated her when she was thirteen, fourteen, or fifteen years of age.
Mich. Comp. Laws § 750.520b(1)(b)(ii). To prove second-degree criminal
conduct, the prosecutor had to prove that Petitioner was related to the victim and
had sexual contact with her when she was thirteen, fourteen, or fifteen years of age.
Mich. Comp. Laws § 750.520c(1)(b)(ii).
As previously explained, the victim testified that Petitioner was her uncle
and that he penetrated her vagina with his penis when she was fourteen years old.
She also testified that Petitioner touched her “butt” and genital area with his hand.
(10/15/05 Trial Tr., Afternoon Session, at 63, 65, 77-83, ECF No. 8-5 at Pg ID
346, 348, 360-66.) This testimony established the elements of first-degree and
second-degree criminal sexual conduct, and in criminal sexual conduct cases, the
victim’s testimony need not be corroborated. Mich. Comp. Laws § 750.520h;
People v. Solloway, 891 N.W.2d 255, 262 (Mich. Ct. App. 2016), appeal denied,
894 N.W.2d 604 (Mich. 2017).
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Nevertheless, Petitioner maintains that the victim was not credible. He
points to the victim’s testimony that the crimes occurred shortly before her
birthday on October 21, 2005 (10/15/09 Trial Tr., Afternoon Session, at 100-01,
116-17, ECF No. 8-5 at Pg ID 383-84, 399-400), even though the parties stipulated
that Petitioner was in custody from October 5, 2005, to the present (10/16/05 Trial
Tr. at 79, ECF No. 8-6 at Pg ID 496). Additionally, the victim was unsure whether
the crimes occurred during winter, summer, spring, or fall (10/15/09 Trial Tr.,
Afternoon Session, at 106-07, ECF No. 8-5 at Pg ID 380-81), and she continued to
go back to her grandfather’s home after the incident even though Petitioner was
there (id. at 91, Pg ID 374).
While it is true that the victim was uncertain about when the crimes
occurred, “time is not of the essence nor a material element in a criminal sexual
conduct case, at least where the victim is a child.” People v. Stricklin, 413 N.W.2d
457, 463 (Mich. Ct. App. 1987). This is true even in cases where the defendant
claims to have an alibi. People v. Dobek, 732 N.W.2d 546, 565 (Mich. Ct. App.
2007).
Furthermore, the jury could have inferred from the victim’s testimony that
the crimes occurred on October 1, 2, or 3, 2005. This brief block of time was
shortly before her birthday on October 21, 2005, and it coincided with the time that

20

Petitioner was not in custody. Also, as the Michigan Court of Appeals pointed out,
the jury could have reasoned that the victim’s uncertainty about the dates was due
to her not disclosing the incident until 2007 and not testifying at Petitioner’s trial
until 2009.
Finally, “‘attacks on witness credibility are simply challenges to the quality
of the government’s evidence and not to the sufficiency of the evidence,’” Martin
v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo,
742 F.2d 927, 935 (6th Cir. 1984)), and an assessment of a witness’s credibility
generally is “beyond the scope of federal habeas review of sufficiency of evidence
claims.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). In
sufficiency-of-the-evidence challenges, the Court does “not reweigh the evidence,
re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the
jury.” Tanner, 867 F.3d at 672.
A rational trier of fact could have concluded from the evidence, when
viewed in the light most favorable to the prosecution, that Petitioner was not in
custody when the crimes occurred. A rational trier of fact also could have
concluded that Petitioner was related to the victim and that he engaged in sexual
penetration and sexual contact with the victim when she was at least thirteen years
of age and less than sixteen years of age. Therefore, the evidence was sufficient to

21

support Petitioner’s convictions, and the decision of the Michigan Court of
Appeals was neither contrary to, nor an unreasonable application of, Jackson.
Petitioner has no right to relief on the basis of his challenge to the
sufficiency of the evidence. The mere existence of sufficient evidence to convict
defeats his claim. Matthews, 319 F.3d at 788-89.
D.

Claim Four: Violation of the State’s 180-Day Rule

Petitioner alleges next that the charges against him should have been
dismissed because the State’s 180-day rule was violated. This rule provides:
Whenever the department of corrections receives notice that there is
pending in this state any untried warrant, indictment, information, or
complaint setting forth against any inmate of a correctional facility of
this state a criminal offense for which a prison sentence might be
imposed upon conviction, the inmate shall be brought to trial within
180 days after the department of corrections causes to be delivered to
the prosecuting attorney of the county in which the warrant,
indictment, information, or complaint is pending written notice of the
place of imprisonment of the inmate and a request for final disposition
of the warrant, indictment, information, or complaint.
Mich. Comp. Laws § 780.131(1). The remedy for a violation of this rule is
dismissal of the charges with prejudice. Mich. Comp. Laws § 780.133.
The alleged violation of the State’s 180-day rule is not a basis for habeas
relief because, “[i]n conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” McGuire, 502 U.S. at 68. “A federal court may not issue the writ
22

on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41
(1984).
Petitioner attempts to raise his claim as a federal constitutional issue by
alleging that the failure of the Michigan Department of Corrections to send the
appropriate notice to the prosecutor violated his right to due process. Petitioner
appears to argue in the alternative that the prosecution did receive notice of his
incarceration, but failed to try him within 180 days.
Petitioner admitted in the trial court that he was arraigned on April 22, 2009.
He would have received notice of the charges then. His trial commenced six
months and eight days later on October 15, 2009, and he has not shown, or even
alleged, how he was prejudiced by the delay in trying him. As the Michigan Court
of Appeals reasoned, “[t]o establish a due process violation requiring reversal, a
defendant must prove prejudice to his defense.” Pittman, 2011 WL 2555389, at *1
(citing People v. McGee, 672 N.W.2d 191, 201 (Mich. Ct. App. 2003); see also
United States v. Schaffer, 586 F.3d 414, 425 (6th Cir. 2009) (quoting United States
v. Gouveia, 467 U.S. 180, 192 (1984)) (“The Supreme Court has repeatedly
emphasized that, in order to establish a due process violation, the defendant must
show that the delay ‘caused him actual prejudice in presenting his defense.’”).
Thus, Petitioner’s right to due process was not violated.

23

E.

Claim Five: Improperly Scored Offense Variable

Petitioner alleges that the trial court erred by scoring ten points for offense
variable four of the Michigan sentencing guidelines. The Michigan Court of
Appeals disagreed and concluded that the trial court did not abuse its discretion
when scoring the offense variable.
This Court finds no merit in Petitioner’s claim because a challenge to the
state court’s application and interpretation of state sentencing guidelines is “a
matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis
v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s claim is not
cognizable on habeas review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.
2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson
v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). A sentencing claim based
on an alleged violation of Michigan law simply fails to state a claim on which
habeas relief may be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir.
2000).
Petitioner nevertheless contends that he was sentenced on inaccurate
information. A sentence based on extensively and materially false information that
the defendant had no opportunity to challenge violates due process. Townsend v.

24

Burke, 334 U.S. 736, 741 (1948). For the following reasons, however, this Court
finds that the trial court did not rely on extensively and materially false
information.
Offense variable four “is psychological injury to a victim.” Mich. Comp.
Laws § 777.34(1). Ten points is appropriate if “[s]erious psychological injury
requiring professional treatment occurred to a victim.” Mich. Comp. Laws
§ 777.34(1)(a). “In making this determination, the fact that treatment has not been
sought is not conclusive.” Mich. Comp. Laws § 777.34(2). A score of zero is
proper if “[n]o serious psychological injury requiring professional treatment
occurred to a victim.” Mich. Comp. Laws § 777.34(1)(b).
According to Petitioner, there was no testimony that the victim received any
professional treatment or even that she needed professional treatment. The
Michigan Court of Appeals, however, correctly pointed out that the victim
blamed her significant behavioral problems, to which her mother
testified, on defendant’s assault. Also, at trial, the victim appeared to
become so overwhelmed while testifying about the assault that she
simply stopped answering questions and cried. Further, the victim’s
mother indicated that the victim would not provide an impact
statement because it was still very hard for her to talk to anyone about
what happened.
Pittman, 2011 WL 2555389, at *4.

25

This Court agrees with the Michigan Court of Appeals that “it was
reasonable for the trial court to deduce that the victim suffered a serious
psychological injury.” Id. The trial court did not rely on extensively and
materially false information. Therefore, Petitioner is not entitled to re-sentencing.
F.

Claim Six: Ineffective Assistance of Trial Counsel

Petitioner alleges that his trial attorney deprived him of effective assistance
by failing to make proper objections and a record. Petitioner appears to argue, as
he did in state court, that defense counsel was ineffective for failing to object to
evidence that he had been in prison and to the prosecutor’s questions or elicitation
of evidence concerning his other “bad acts.” The Michigan Court of Appeals
considered this issue on direct review and concluded that defense counsel was not
ineffective.
1.

Clearly Established Supreme Court Precedent

The “clearly established Federal law” for claims of ineffective assistance of
counsel is Strickland v. Washington, 466 U.S. 668 (1984). Pinholster, 563 U.S. at
189. Under Strickland, a defendant must show “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that

26

the conviction . . . resulted from a breakdown in the adversary process that renders
the result unreliable.” Id.
“[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id. The defendant must show “that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. A defendant must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
2.

Application

Trial counsel’s failure to object to comments about Petitioner being away
was not deficient performance because the comments were vague and did not
mention Petitioner’s incarceration. Further, counsel’s intentional elicitation of
testimony that Petitioner had been in prison was a strategic decision, meant to
show that Petitioner could not have committed the charged crimes. Because this
was a reasonable trial strategy, counsel’s performance was not deficient.

27

The prosecutor’s comments and questions about Petitioner’s past violence
and convictions were relevant and proper under state law, and the prosecutor’s
closing argument about Petitioner possibly being under the influence of illegal
drugs when the crimes occurred was a reasonable inference from the evidence.
The prosecutor’s conduct was not improper, and, therefore, defense counsel’s
failure to object to the conduct did not constitute ineffective assistance. Further,
the state appellate court’s finding – that trial counsel was not ineffective – was
neither contrary to, nor an unreasonable application of, Strickland. Habeas relief is
not warranted on Petitioner’s claim.
G.

Claim Seven: Abuse of Discretion
1.

Failure to Dismiss the Charges

Petitioner alleges that the trial court abused its discretion and deprived him
of a fair trial by denying his motion to dismiss his case for a violation of the State’s
180-day rule.
The prosecuting attorney in Petitioner’s case argued that the 180-day rule
was not triggered because the Michigan Department of Corrections never sent a
certified notice of Petitioner’s incarceration to her office. (10/14/09 Hr’g Tr. at 8,
11, ECF No. 8-3 at Pg ID 140, 143; 10/15/09 Trial Tr., A.M. Session, at 8-11, ECF
No. 8-4 at Pg ID 152-55.) According to Petitioner’s trial counsel, he spoke by

28

telephone to an employee of the Michigan Depart of Corrections who conceded to
defense counsel that the Department of Corrections never sent a certified notice of
Petitioner’s incarceration to the prosecutor. (10/14/09 Hr’g Tr. at 3-7, ECF No. 83 at Pg ID 135-39.) Furthermore, the prosecutor pointed out that the case had been
moving along since March 2009 when the prosecution became aware of the case,
that Petitioner had not been held in jail, and that the prosecution had acted in good
faith. (Id. at 9.)
Petitioner argued that the detective in the case received notification from the
Department of Corrections as early as April 7, 2009. (10/15/09 Trial Tr., A.M.
Session, at 5, ECF No. 8-4 at Pg ID 149.) Yet, “investigating police officers . . .
are not part of the prosecutor’s office,” and “[t]he 180–day–rule statute expressly
provides that the Department of Corrections must deliver a written notice of
incarceration and request for disposition ‘to the prosecuting attorney of the county
in which the warrant, indictment, information, or complaint is pending . . . .’ ”
People v. Williams, 716 N.W.2d 208, 214-15 (Mich. 2006) (quoting Mich. Comp.
Laws § 780.131(1)).
Here, the Michigan Department of Corrections never notified the prosecutor
of Petitioner’s incarceration. Therefore, the 180-day rule was not triggered, and

29

the trial court did not abuse its discretion or deprive Petitioner of a fair trial by
declining to dismiss his case under the rule.
2.

Failure to Appoint Substitute Counsel

Petitioner alleges next that the trial court abused its discretion by failing to
appoint substitute counsel for him despite a conflict of interest between Petitioner
and his attorney. The trial court rejected this claim during the post-conviction
proceedings because Petitioner had not pointed to any specific disagreements with
defense counsel over fundamental trial tactics. The court concluded that
Petitioner’s general statements about defense counsel’s representation did not
constitute good cause for substitution of counsel and that Petitioner was not
entitled to relief from judgment on the issue.
a.

Clearly Established Federal Law

The Sixth Amendment to the United States Constitution provides the
accused in a criminal prosecution “the right . . . to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI. Nevertheless, the right to counsel of
choice does not extend to defendants like Petitioner who had counsel appointed for
them. United States v. Gonzalez-Lopez, 548 U.S. 140, 143, 151 (2006) (quoting
Caplin v. Drysdale, Chartered v. United States, 491 U.S. 617, 624-35 (1989)
(“[T]he Sixth Amendment guarantees a defendant the right to be represented by an

30

otherwise qualified attorney whom the defendant can afford to hire, or who is
willing to represent the defendant even though he is without funds.”).
Moreover, an accused “must show good cause such as a conflict of interest,
a complete breakdown in communication or an irreconcilable conflict with his
attorney in order to warrant substitution.” Wilson v. Mintzes, 761 F.2d 275, 280
(6th Cir. 1985). Consideration of motions for substitution of counsel “requires a
balancing of the accused’s right to counsel of his choice and the public’s interest in
the prompt and efficient administration of justice.” Id.
b.

Application

On the morning of trial, Petitioner asked the trial court to discharge his trial
attorney and to appoint another attorney for him. He claimed that trial counsel did
not take his case seriously and was making false allegations, siding with the
prosecutor, not doing his job, and not keeping Petitioner’s best interests in mind.
Petitioner also claimed that the client/attorney relationship was nonexistent.
(10/15/09 Trial Tr., A.M. session, at 12-14, ECF No. 8-4 at Pg ID 156-58.)
Defense counsel informed the trial court that he in fact visited Petitioner five
times in jail (and had the cards reflecting those visits) and saw Petitioner in the
detention area of the courthouse. (Id. at 11, 14-15, Pg ID 158-59.) Defense
counsel stated that he moved for discovery and to have the matter remanded to the

31

district court, but the trial court denied his requests. (Id. at 15, Pg ID 159.)
Defense counsel noted that he also attempted to get documentation to support
Petitioner’s claim under the 180-day rule, and while there was some disagreement
between him and Petitioner, the rules of evidence prevented him from doing some
of the things Petitioner requested. Id. Defense counsel maintained that he was
prepared to try the case. Id.
Petitioner responded to defense counsel’s comments by complaining of the
lack of communication between them. Petitioner claimed he sat in prison for two
and a half months without a visit from counsel and that counsel called him only
one time in four months. (Id. at 16.)
The trial court determined that Petitioner failed to allege any details or
specific reasons for discharging defense counsel, and even though there was no
communication for a time, defense counsel had filed motions and participated in
the case. The trial court also took note of defense counsel’s caliber and
competence and the fact that the jury was about to be impaneled. (Id. at 17-18.)
With these considerations in mind, the trial court denied Petitioner’s motion for
substitution of counsel. (Id. at 18.)
Petitioner did not renew his request for substitution of counsel, and the
record indicates that he subsequently consulted with counsel on issues such as

32

whether to testify and which witnesses to call. In the end, Petitioner appeared to be
satisfied with counsel’s recommendations regarding trial strategy. He did not have
a constitutional right to a “meaningful relationship” with his attorney, Slappy, 461
U.S. at 14, and he has failed to show an actual conflict of interest, a complete
breakdown in communication with his attorney, or an irreconcilable conflict with
trial counsel. Therefore, the trial court did not abuse its discretion in denying
Petitioner’s request to appoint another attorney for him immediately before trial.
3.

The Jury Instructions

Petitioner alleges that the trial court abused its discretion by incorrectly
instructing the jury on mental anguish. Because the trial court did not read an
instruction on mental anguish, the Court understands Petitioner to be saying that
the trial court erred by not addressing the issue of mental anguish during its charge
to the jury.
The fact that a jury instruction may have been incorrect under state law is
not a basis for habeas relief. McGuire, 502 U.S. at 71-72 (citing Marshall v.
Lonberger, 459 U.S. 422, 438 n.6 (1983)). The only question on habeas review
with respect to jury instructions “is ‘whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.’” Id. at
72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

33

In response to Petitioner’s jury instruction claim, the trial court pointed out
on post-conviction review that mental anguish is not an element of criminal sexual
conduct, as charged in this case. It is only an element in cases where the criminal
sexual conduct resulted in personal injury to the victim or where force or coercion
was used to accomplish sexual penetration. See Mich. Comp. Laws
§ 750.520b(1)(f). Petitioner, however, was charged based on his relation to the
victim. See id. §§ 750.520b(1)(b), .520(c)(1)(b). Neither mental anguish nor
personal injury are elements under these provisions. Therefore, the trial court did
not abuse its discretion or deprive Petitioner of due process and a fair trial by
failing to instruct the jury on mental anguish.
4.

Denying the Motion for a Directed Verdict

Petitioner alleges that the trial court abused its discretion by denying his
motion for a directed verdict of acquittal at the close of the prosecution’s proofs.
In Michigan, “the trial judge when ruling on a motion for a directed verdict
of acquittal must consider the evidence presented by the prosecution up to the time
the motion is made, view that evidence in a light most favorable to the prosecution,
and determine whether a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt.” People v.
Hampton, 285 N.W.2d 284, 288 (Mich. 1979)(internal and end citations omitted).

34

A state court’s alleged misapplication of state law regarding a motion for a directed
verdict is not a cognizable claim in a federal habeas corpus proceeding. King v.
Trippett, 27 F. App’x 506, 510 (6th Cir. 2001).
The victim, moreover, testified that Petitioner penetrated her with his penis
and had sexual contact with her when she was fourteen years old. This testimony
satisfied the elements of the crimes, namely, penetration and sexual contact with a
relative who was at least thirteen years old and less than sixteen years old. See
Mich. Comp. Laws §§ 750.520b(1)(b)(ii), 750.520c(1)(b)(ii). Consequently, a
rational trier of fact could have determined that the prosecution proved the
essential elements of the charged crimes beyond a reasonable doubt, and the trial
court did not abuse its discretion by denying Petitioner’s motion for a directed
verdict of acquittal.
5.

Exceeding the Sentencing Guidelines

Petitioner’s final claim about the trial court is that the court exceeded the
sentencing guidelines without providing substantial and compelling reasons for the
departure. This claim has no basis in fact because the guidelines called for a
minimum sentence of ten and a half to thirty-five years in prison, and the trial court
sentenced Petitioner within that range to a minimum sentence of twenty-two years,

35

nine months. (11/25/09 Sentencing Tr. at 35-37, ECF No. 8-7 at Pg ID 630-32.)
Therefore, Petitioner’s claim lacks merit.
H.

Claim Eight: Additional Prosecutorial Misconduct

Petitioner asserts that the prosecutor deprived him of a fair trial by coaching
witnesses, using perjured testimony, intimidating witnesses, and shielding the
victim from him.
1.

Clearly Established Federal Law

As noted above, the relevant question on review of the prosecutor’s conduct
is whether the conduct infected the trial with such unfairness as to make the
resulting conviction a denial of due process. Darden, 477 U.S. at 181. The trial
court found no merit in Petitioner’s prosecutor-misconduct claim when addressing
the issue on post-conviction review, and this Court may not set aside that
conclusion unless Petitioner shows that the state court’s determination was
unreasonable.
Petitioner contends that the prosecutor relied on false testimony and
intimidated her key witnesses. Prosecutors may not deliberately deceive a court or
jurors by presenting evidence that they know is false. Giglio v. United States, 405
U.S. 150, 153 (1972). But to prevail on a claim that the prosecutor relied on false
testimony, a habeas petitioner must show that (1) the testimony was actually false,

36

(2) the testimony was material, and (3) the prosecutor knew the testimony was
false. Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 2012); Coe v. Bell, 161 F.3d
320, 343 (6th Cir. 1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822
(6th Cir. 1989)).
2.

Application

In an affidavit signed about two and a half years after Petitioner’s trial, the
victim states that she does not know why she was asked to go to court because
“nothing happen[ed].” She goes on to say that her Uncle Collin “did not touch
her” and that the only reason she said something different to people in the juvenile
home was to get out of the home early. (See ECF No. 8-16 at Pg ID 1307.)
The victim’s mother states in an affidavit that she and the victim were forced
to perjure themselves at Petitioner’s trial and that the prosecutor forced her to go to
court by threatening to get a warrant for her arrest. (Id. at Pg ID 1313.) The
mother also states that the victim did not want anything to do with the case and that
the prosecutor used the victim’s juvenile case against her. (Id.) According to the
mother, the victim did not want to have her uncle go away for something that the
victim said out of spite and anger. (Id.) The mother further states that she and her
daughter would like Petitioner to be free and back with his family because “[t]his
was all a big mistake, all is forgiven.” (Id.)

37

The trial transcript reflects that the victim was soft-spoken at trial and
stopped answering questions at one point. (10/15/09 Trial Tr., Afternoon Session,
at 69-75, ECF No. 8-5 at Pg ID 352-58.) The prosecutor’s and defense counsel’s
closing arguments suggested that the victim was even rude to the attorneys during
her testimony. (10/16/05 Trial Tr. at 122-23, 133, ECF No. 8-6 at 539-40, 550).
Nevertheless, the record does not support the contention that the prosecutor
encouraged the victim or her mother to lie, coerced them into testifying against
Petitioner, or intimidated them. The witnesses may have felt pressured to testify,
but Petitioner has failed to show that the witnesses testified falsely and that the
prosecutor knew that the testimony was false. The victim’s recanting affidavit,
moreover, must be viewed with “extreme suspicion.” Williams v. Coyle, 260 F.3d
684, 708 (6th Cir. 2001).
Even if the prosecutor’s conduct was improper, defense counsel was able to
effectively challenge the victim’s testimony by highlighting inconsistencies in her
testimony, by describing her as a troubled young woman, and by emphasizing that
she delayed disclosing the crimes for years. The jury had sufficient information to
assess the witnesses’ credibility, and any impropriety on the part of the prosecutor
did not deprive Petitioner of a fair trial or due process.

38

Petitioner’s claim about being shielded from the victim is based on the fact
that the victim apparently did not face him when she testified. She did, however,
testify before the jury in open court, and defense counsel had an ample opportunity
to cross-examine her. The trial court correctly observed on review of Petitioner’s
claim that Petitioner’s right of confrontation was not violated. See Maryland v.
Craig, 497 U.S. 836, 846 (1990) (stating that “physical presence, oath, crossexamination, and observation of demeanor by the trier of fact—serves the purposes
of the Confrontation Clause by ensuring that evidence admitted against an accused
is reliable and subject to the rigorous adversarial testing that is the norm of Anglo–
American criminal proceedings”). Petitioner’s claims about the prosecutor lack
merit and do not entitle him to relief.
I.

Claim Nine: Lack of Probable Cause

Petitioner contends that the charges against him should have been dismissed
because no felony complaint was filed and the police lacked probable cause to
arrest him. Petitioner alleges that the officer who made the decision to arrest him
failed to conduct an independent verification of the allegations and, instead, relied
on comments made by an employee of Children’s Village. The state trial court
concluded on post-conviction review of this claim that the victim’s allegations

39

provided probable cause to believe Petitioner had committed criminal sexual
conduct.
The Fourth Amendment applies to the States through the Fourteenth
Amendment, Dunaway v. New York, 442 U.S. 200, 207 (1979), and it states that
“[t]he right of the people to be secure in their persons . . . against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue but upon
probable cause . . . .”

U.S. Const., amend. IV. Thus, “[i]t is abundantly clear

that an arrest warrant is valid only if supported by probable cause.” Ahlers v.
Schebil, 188 F.3d 365, 370 (6th Cir. 1999).
“Probable cause exists where ‘the facts and circumstances within their (the
officers’) knowledge and of which they had reasonably trustworthy information
(are) sufficient in themselves to warrant a man of reasonable caution in the belief
that’ an offense has been or is being committed.” Brinegar v. United States 338
U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162
(1925)). “[R]eliance on the statements of the victim and an eyewitness alone may
be sufficient to establish probable cause.” Crockett v. Cumberland Coll., 316 F.3d
571, 582 (6th Cir. 2003)). In fact, the victim’s “accusation that she had been
sexually assaulted by [Petitioner], standing alone, was sufficient to establish
probable cause.” Ahlers, 188 F.3d at 370.

40

Furthermore, “where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428
U.S. 465, 494 (1976). “[T]he Powell ‘opportunity for full and fair consideration’
means an available avenue for the prisoner to present his claim to the state courts,
not an inquiry into the adequacy of the procedure actually used to resolve that
particular claim.” Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), cert.
denied, 135 S. Ct. 1174 (2015).
“Michigan provide[s] an adequate avenue to raise a Fourth Amendment
claim,” and Petitioner has not shown “that his claim was frustrated by a failure in
Michigan’s Fourth-Amendment-review mechanism.” Hurick v. Woods, 672 F.
App’x 520, 535 (6th Cir. 2016), cert. denied, 138 S. Ct. 96 (2017). For this
additional reason, his Fourth Amendment claim lacks merit.
J.

Claim Ten: Additional Ineffective Assistance of Trial Counsel

In claim ten, Petitioner raises additional claims about his trial attorney. He
asserts that trial counsel was ineffective for failing to investigate witnesses and
consult with him about trial strategy.

41

1.

Failure to Investigate

Defense attorneys have “a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691. “This duty includes the obligation to investigate all
witnesses who may have information concerning his or her client’s guilt or
innocence.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). But the relevant
question is whether counsel’s choices were reasonable, id., and the Court “must
presume that decisions of what evidence to present and whether to call or question
witnesses are matters of trial strategy.” Cathron v. Jones, 77 F. App’x 835, 841
(6th Cir. 2003) (citing Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002)).
Petitioner alleges that an investigation of witnesses would have revealed that
he was not present at his father’s house when the victim was there. To support this
claim, Petitioner relies on his father’s undated affidavit in which he states that
Petitioner did not stay at his house when the victim stayed there overnight and that
he would have known if Petitioner came home during the night, because he (the
father) was always up by 4:00 a.m. The elder Mr. Pittman also states in his
affidavit that he did not have a chance to testify at Petitioner’s trial. (See ECF No.
8-16 at Pg ID 1310.)

42

Petitioner’s nephew makes similar statements in his affidavit. He avers that
he never saw Petitioner at the house when the victim stayed there overnight and
that Petitioner’s trial attorney told him that he did not have to testify. (See id. at Pg
ID 1311.)
The victim testified, however, that the crimes occurred one night when her
grandfather and brother were sleeping and that the incident did not last a long time.
(10/15/09 Trial Tr., Afternoon Session, at 67, 76, and 86, ECF No. 8-5 at Pg ID
350, 359, 369.) It is possible that the incident occurred without the elder Mr.
Pittman’s knowledge and when the nephew also was sleeping or was not present in
the house.
Furthermore, when Petitioner informed the trial court during trial that he
wanted defense counsel to produce his father, nephew, and brother as witnesses,
defense counsel stated that he had interviewed those witnesses. (10/16/09 Trial Tr.
at 95, ECF No. 8-6 at Pg ID 513.) Defense counsel went on to say that he did not
think it was in Petitioner’s best interests to call the witnesses, that the witnesses
would hurt the defense strategy, and that he would be neglecting his duty as
counsel to place the witnesses on the stand. (Id. at 95-98, Pg ID 512-18.)
Petitioner’s father was ill and not available to testify that day, but
Petitioner’s brother was in the courthouse, and, at Petitioner’s insistence, defense

43

counsel called the brother as a witness. (Id. at 99-100., Pg ID 516-17.) At the
conclusion of his brother’s testimony, Petitioner informed defense counsel and the
trial court that he did not want counsel to request a continuance for the purpose of
calling additional witnesses and that he was satisfied and prepared to rest his case.
(Id. at 118, Pg ID 535.)
Given this record, Petitioner’s contention that defense counsel was
ineffective for not investigating witnesses lacks merit. Defense counsel did
interview the witnesses, he did not think they would make good witnesses, and
Petitioner ultimately agreed with defense counsel’s strategy. The trial court’s
rejection of Petitioner’s claim was not contrary to, or an unreasonable application
of, Strickland.
2.

Failure to Consult

Petitioner further alleges that defense counsel failed to consult him on trial
strategy.
“[A]n attorney ‘has a duty to consult with the client regarding ‘important
decisions,’ including questions of overarching defense strategy.’” Valenzuela v.
United States, 217 F. App’x 486, 490 (6th Cir. 2007) (quoting Florida v. Nixon,
543 U.S. 175, 187 (2004)). Nevertheless, “this duty, and the others owed by
counsel, do not provide a checklist for judicial evaluation of attorney

44

performance.” Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir. 1993) (citing
Strickland, 466 U.S. at 688). “[C]ounsel may exercise his professional judgment
with respect to the viability of certain defenses and evidentiary matters without
running afoul of the Sixth Amendment.” Id. at 1353–54.
Petitioner contends that if defense counsel had consulted him, counsel would
have learned that Petitioner had a strained relationship with the victim because he
had intervened in an argument between the victim and her mother. The victim
testified, however, that she formerly had a close relationship with Petitioner and
that she liked him. (10/15/09 Trial Tr., Afternoon Session, at 65, ECF No. 8-5 at
Pg ID 348.) The victim’s mother confirmed the existence of the close relationship
between Petitioner and the victim; she also said that Petitioner had never
disciplined the victim. (10/16/09 Trial Tr. at 10, 32, ECF No. 8-6 at Pg ID 427,
440.) Even Petitioner’s brother testified that Petitioner and the victim got along
fine and that there was no bad blood between the two of them. (Id. at 116, Pg ID
533.)
Defense counsel, moreover, informed the trial court that he visited Petitioner
five times in prison, met with Petitioner in the detention area of the courthouse,
and was prepared for trial. (10/15/09 Trial Tr., A.M. Session, at 14-15, ECF No. 85 at Pg ID 158-59.) Defense counsel also consulted Petitioner at various times

45

during the trial, and he exercised reasonable judgment regarding the viability of
possible defenses.
The record fails to support Petitioner’s claim that his attorney did not consult
him on trial strategy. Thus, the trial court’s conclusion – that Petitioner had failed
to show he was denied effective assistance of counsel – was neither contrary to,
nor an unreasonable application of, Strickland.
K.

Claim Eleven: Newly Discovered Evidence

Petitioner contends that he is entitled to a new trial on the basis of newly
discovered impeachment evidence that the victim recanted her accusations.
Petitioner contends that, at a minimum, an evidentiary hearing should be held to
expand the record.
The victim’s recanting affidavit must be viewed with extreme suspicion.
Williams v. Coyle, 260 F.3d at 708. Further, to the extent Petitioner is claiming to
have newly discovered evidence of actual innocence, his claim fails for the
following reasons.
“Claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.”
Herrera v. Collins, 506 U.S. 390, 400 (1993). “This rule is grounded in the

46

principle that federal habeas courts sit to ensure that individuals are not imprisoned
in violation of the Constitution – not to correct errors of fact.” Id.
“To be credible, [a claim of actual innocence] requires [a] petitioner to
support his allegations of constitutional error with new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995). Petitioner purports to have impeachment evidence, but impeachment
evidence “is a step removed from evidence pertaining to the crime itself.”
Calderon v. Thompson, 523 U.S. 538, 563 (1998). “This sort of latter-day
evidence brought forward to impeach a prosecution witness will seldom, if ever,
make a clear and convincing showing that no reasonable juror would have believed
the heart of [the witness’s] account of petitioner’s actions.” Sawyer v. Whitley, 505
U.S. 333, 349 (1992).
The Court concludes that Petitioner has fallen short of making the threshold
showing for a claim of actual innocence. Accordingly, the Court rejects his claim
of newly discovered evidence.
L.

Claim Twelve: Ineffective Assistance of Appellate Counsel

In his twelfth and final claim, Petitioner alleges that he was denied his right
to effective assistance of appellate counsel. Petitioner contends that appellate

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counsel was ineffective for failing to raise his claims about the trial court’s rulings,
jury instructions, and sentence, the prosecutor’s conduct, and the alleged lack of
probable cause. The trial court determined on post-conviction review that
appellate counsel was not ineffective for failing to raise all of petitioner’s claims
on appeal, and that Petitioner was not prejudiced by counsel’s performance.
Claims of ineffective assistance of appellate counsel are governed by the
same Strickland standard as claims of ineffective assistance of trial counsel.
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). To prevail on his claim,
Petitioner “must show that his [appellate] counsel’s performance was deficient and
that he was prejudiced as a result.” Id. (citing Strickland, 466 U.S. at 687). This
requires demonstrating (1) that his attorney acted unreasonably in failing to
discover and raise nonfrivolous issues on appeal and (2) there is a reasonable
probability he would have prevailed on appeal if his attorney had raised the issues.
Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (citing Strickland, 466 U.S. at 68791, 694).
For the reasons given in this opinion, Petitioner’s underlying claims about
the trial court, the prosecutor, his arrest, and trial counsel are meritless. “[B]y
definition, appellate counsel cannot be ineffective for a failure to raise an issue that
lacks merit,” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), and because

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there is not a reasonable probability that Petitioner would have prevailed on appeal
if his appellate attorney had raised all his claims, Petitioner has failed to show that
he was prejudiced by his attorney’s performance. The state trial court’s rejection
of Petitioner’s claim about appellate counsel was neither contrary to, nor an
unreasonable application of, Strickland or Smith v. Robbins.
V.

CONCLUSION, DENIEAL OF CERTIFICATE OF
APPEALIABILITY AND LEAVE TO PROCEED IN FORMA
PAUPERIS
For the reasons set forth above, this Court holds that the state courts’

rejection of Petitioner’s claims was neither contrary to Supreme Court precedent,
an unreasonable application of Supreme Court precedent, nor an unreasonable
application of the facts. The state courts’ decisions also were not “so lacking in
justification that there was an error . . . beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103. Accordingly, the Court is denying
Petitioner’s request for habeas relief under § 2254.
Before Petitioner may appeal this decision, he must obtain a certificate of
appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of
appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district

49

court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327.
Reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further.
The Court, therefore, declines to issue a certificate of appealability.
Nevertheless, because Petitioner was granted in forma pauperis status in this
Court, he may proceed in forma pauperis on appeal without further authorization
from this Court. Fed. R. App. P. 24(a)(3).
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal.

Dated: February 6, 2018

s/Linda V. Parker
U.S. District Court Judge

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 6, 2018, by electronic and/or ordinary mail.
s/Julie Owens acting in the absence of Richard Loury
Case Manager

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