Westbrook v. Klee

Filing 15

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK WESTBROOK,
Petitioner,
v.

Case No. 15-13886
Honorable Linda V. Parker

PAUL KLEE,
Respondent.
___________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Derrick Westbrook, (“Petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for firstdegree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b)(ii); and
second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(b)(ii).
For the reasons stated below, the petition for writ of habeas corpus is DENIED
WITH PREJUDICE.
I.

Background
Petitioner was convicted following a jury trial in the Wayne County Circuit

Court. This Court recites verbatim the relevant facts relied upon by the Michigan

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Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions stem from the sexual assault of his daughter,
“AG,” who was 13 years old at the time of the incident. AG testified
that defendant came into her bedroom, laid down on the bed with her,
and rubbed her breasts. He then pulled down her shorts and
underwear and rubbed her buttocks before inserting his penis into her
vagina. After defendant ejaculated, AG got out of bed and went into
the bathroom. When she returned, defendant was lying asleep on the
bed. He awoke five or ten minutes later and started moving his hand
up and down on his penis. He asked AG to do the same thing for him,
which she did, before he moved her hand away and resumed moving
his own hand up and down on his penis.
People v. Westbrook, No. 308410, 2013 WL 1007730, at *1 (Mich. Ct. App.
Mar. 14, 2013). Petitioner was denied leave to appeal his case because the
appellate court was not persuaded that the questions presented should be reviewed.
People v. Westbrook, 835 N.W. 2d 591 (Mich. 2013).
Petitioner filed a post-conviction motion for relief from judgment pursuant
to M.C.R. 6.500, et. seq., which was denied. People v. Westbrook, No. 11-00913901-FC (Third Cir. Ct., Oct. 24, 2013). The Michigan appellate courts denied
petitioner’s leave to appeal. People v. Westbrook, No. 321078 (Mich. Ct. App.
May 6, 2014); lv. den. 859 N.W.2d 508 (2015).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Defense counsel provided ineffective assistance, in violation of the
constitutional right to the assistance of counsel and the federal and

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state Due Process Clauses, where counsel failed to: 1) have available
at the trial the preliminary examination transcripts so that he could
cross-examine the complaining witnesses; 2) call a witness who
would have testified that the complainant had numerous
inconsistencies in her testimony.
II. Defendant-Appellant should be allowed to file an amended
Standard 4 brief because appellate counsel did not provide trial
transcripts so that Defendant-Appellant could outline the facts
necessary to properly brief the issues raised above.
(ECF No. 1 at Pg ID 3.)
II.

Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court

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on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when
“a state court decision unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11.
The Supreme Court explained that “a federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA
thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 559 U.S. 766, 773 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7
(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even

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a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or...could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a
prior decision” of the Supreme Court. Id. In order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103.
III. Discussion
A. Claim # 1 – Ineffective Assistance of Trial Counsel
Petitioner first claims he was denied the effective assistance of trial counsel.
To show that he or she was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two-prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466

5

U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner “must overcome the
presumption that, under the circumstances, the challenged action ‘might be sound
trial strategy.’ Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)). Second, the defendant must show that such performance
prejudiced his defense. Id. at 687. To demonstrate prejudice, the defendant must
show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood
of a different result must be substantial, not just conceivable.’” Storey v.
Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at
112). The Supreme Court’s holding in Strickland places the burden on the
defendant who raises a claim of ineffective assistance of counsel, and not the state,
to show a reasonable probability that the result of the proceeding would have been
different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal
court believes the state court’s determination’ under the Strickland standard ‘was

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incorrect but whether that determination was unreasonable - a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro
v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the
state court’s application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101. Indeed, “because
the Strickland standard is a general standard, a state court has even more latitude
to reasonably determine that a defendant has not satisfied that standard.” Knowles,
556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the
§ 2254(d)(1) standard, a “doubly deferential judicial review” applies to a
Strickland claim brought by a habeas petitioner. Id. This means that on habeas
review of a state court conviction, “a state court must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.” Harrington, 562 U.S. at 101. “Surmounting
Strickland's high bar is never an easy task.” Id. at 105 (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)).
Because of this doubly deferential standard, the Supreme Court has indicated
that:
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under

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§ 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington v. Richter, 562 U.S. at 105.
Finally, a reviewing court must not merely give defense counsel “the benefit
of the doubt, but [must also] affirmatively entertain the range of possible reasons
that counsel may have had for proceeding as he or she did. Cullen v. Pinholster,
563 U.S. 170, 196 (2011).
Petitioner first contends that trial counsel was ineffective for failing to have
the preliminary examination transcript available to cross-examine the victim at
trial. The Michigan Court of Appeals rejected Petitioner’s claim:
Regarding defendant’s first [ineffective assistance of counsel] claim,
it is unclear from the record whether defense counsel had the
transcripts available while he cross-examined AG. Nonetheless,
counsel was able to impeach AG with her prior testimony and AG
admitted that she had previously testified differently. Thus,
defendant has failed to show that he was prejudiced by defense
counsel’s alleged unpreparedness.
People v. Westbrook, 2013 WL 1007730, at * 3.
Petitioner has not established that counsel was ineffective for failing to
utilize the preliminary examination transcript to cross-examine or impeach the
victim. As referenced earlier, Petitioner failed to show that counsel did not, in
fact, have the preliminary examination transcript available or that if he did not,

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that Petitioner was prejudiced by counsel’s failure to have the preliminary
examination transcript available. Counsel questioned the victim extensively about
her prior testimony at the preliminary examination. The victim admitted that she
testified at the preliminary examination that she hated petitioner. (Tr. 12/12/11,
pp. 126-27). The victim further acknowledged that she testified under oath at the
preliminary examination that the incident happened before Christmas although at
trial she testified that the assault happened after the holiday. (Id., pp. 127-28).
The victim testified that she had previously told defense counsel on the record that
she shared a bed with her brother. (Id., p. 129). The victim admitted that she
previously told defense counsel that she learned several sexual terms that she
testified to at trial from her brother. (Id., p. 145).
In the present case, Petitioner was not prejudiced by counsel’s alleged
failure to use the preliminary examination transcript at trial when the victim
admitted several times to her prior testimony from the preliminary examination.
See Henderson v. Norris, 118 F.3d 1283, 1288 (8th Cir. 1997) (finding petitioner
was not prejudiced from trial counsel’s failure at petitioner’s retrial to introduce
transcript of prosecution witness’s testimony from petitioner’s habeas hearing in
federal court, where jury was informed, through cross-examination, of
contradiction between the witness’ habeas and trial testimony); DeLong v. Brady,

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723 F. Supp. 2d 376, 392 (D. Mass. 2010) (holding counsel’s failure to secure a
transcript from petitioner’s earlier armed robbery trial in order to impeach
witnesses on alleged prior inconsistent statements did not prejudice petitioner, and
thus could not amount to ineffective assistance of counsel, where counsel explored
inconsistencies of various witnesses’ statements during cross-examination); see
also Welsh v. Lafler, 444 F. App’x. 844, 852 (6th Cir. 2011) (finding defense
counsel’s failure to admit into evidence an audiotape of petitioner’s conversation
with victim at county fair, during which victim stated that petitioner did not touch
him inappropriately, did not constitute ineffective assistance of counsel, given that
witness admitted his prior inconsistent statements during trial testimony).
Petitioner was not prejudiced by counsel’s alleged failure to more
thoroughly utilize the preliminary examination transcript because any
impeachment evidence from the preliminary examination was cumulative of the
testimony elicited from the victim in support of petitioner’s claim that the victim
had falsely accused him of sexual assault. Wong, 558 U.S. at 22-23; see also
United States v. Pierce, 62 F. 3d 818, 833 (6th Cir. 1995); Johnson v. Hofbauer,
159 F. Supp. 2d 582, 607 (E.D. Mich. 2001). In this case, the jury had significant
evidence presented to it to question the victim’s credibility and her motives for
fabricating assault charges against Petitioner. Because the jury was “well

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acquainted” with evidence that would have supported Petitioner’s claim that the
victim fabricated these charges, additional evidence in support of Petitioner’s
defense “would have offered an insignificant benefit, if any at all.” Wong, 558
U.S. at 23.
Petitioner next claims that counsel was ineffective for failing to call Ms.
Taffy Brown as a witness.
The Court has reviewed Petitioner’s Standard 4 brief which he filed with the
Michigan Court of Appeals. (ECF No. 14-10.) Petitioner failed to attach any
affidavit from Ms. Brown to this brief. 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). By failing
to present any evidence to the state courts in support of this ineffective assistance
of counsel claim, petitioner is not entitled to an evidentiary hearing on this claim
with this Court. See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir. 2002) (citing 28
U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has failed to attach any offer of proof or
any affidavits sworn by Ms. Brown. Petitioner has offered, neither to the
Michigan courts nor to this Court, any evidence beyond his own assertions as to
whether Ms. Brown would have been able to testify and what the content of her
testimony would have been. In the absence of such proof, Petitioner is unable to

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establish that he was prejudiced by counsel’s failure to call Ms. Brown to testify at
trial, so as to support the second prong of an ineffective assistance of counsel
claim. See Clark v. Waller, 490 F. 3d 551, 557 (6th Cir. 2007). Petitioner is not
entitled to relief on his first claim.
B. Claim # 2 – Denial of Transcripts
In his second claim, Petitioner contends that he was denied a meaningful
direct appeal because he was not provided with copies of the transcripts to prepare
his own pro per supplemental Standard 4 brief on appeal that Petitioner filed in
addition to the appellate brief filed by his appellate counsel.
Petitioner’s appellate counsel filed an appellate brief with the Michigan
Court of Appeals, raising two claims for relief. Petitioner filed his own pro se
brief on appeal, in which he raised two additional claims. Petitioner claims that he
was never provided with copies of the trial transcripts to assist him with preparing
his pro se Standard 4 appeal brief. 1
Petitioner fails to state a claim upon which relief can be granted. A criminal
defendant has no federal constitutional right to self-representation on direct appeal
from a criminal conviction. Martinez v. Court of Appeal of California, 528 U.S.
1

Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly
provides that a pro se brief may be filed within 84 days of the filing of the brief by
the appellant’s counsel, and may be filed with accompanying motions.” Ware v.
Harry, 636 F. Supp. 2d 574, 594, n. 6 (E.D. Mich. 2008).
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152, 163 (2000). This is because the rights protected by the Sixth Amendment,
including the right to self-representation, are rights that are available to prepare
for trial and at the trial itself. However, “[t]he Sixth Amendment does not include
any right to appeal.” Id. at 160. The Supreme Court also rejected the idea that the
“right to self-representation on appeal…[could] be grounded in the Due Process
Clause [of the Fourteenth Amendment because,] [u]nder the practices that prevail
in the Nation today, however, we are entirely unpersuaded that the risk of either
disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a
constitutional right of self-representation is a necessary component of a fair
appellate proceeding.” Martinez, 528 U.S. at 161.
Thus, there is no “constitutional entitlement to submit a pro se appellate
brief on direct appeal from a criminal conviction in addition to a brief submitted
by [appellate] counsel.” See McMeans v. Brigano, 228 F. 3d 674, 684 (6th Cir.
2000). By accepting the assistance of counsel, the criminal appellant waives his
or her right to present pro se briefs on direct appeal. Myers v. Johnson, 76 F. 3d
1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. Supp. 2d 866,
881 (S.D. Ohio 1999); aff’d in part, vacated in part on other grds, 262 F. 3d 615
(6th Cir. 2001) (finding defendant who was represented by counsel and also
sought to submit pro se brief upon appeal did not have right to such hybrid

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representation).
Because Petitioner chose to be represented by appellate counsel, any failure
by the trial court or appellate counsel to provide petitioner with the trial transcripts
so that he could prepare his own pro se brief did not violate petitioner’s
constitutional rights. See U.S. v. Dierling, 131 F.3d 722, 734, n. 7 (8th Cir. 1997);
Foss v. Racette, No. 1:12-CV-0059, MAT 2012 WL 5949463, * 4 (W.D.N.Y.
Nov. 28, 2012); see also Willis v. Lafler, No. 05-74885, 2007 WL 3121542, * 18
(E.D. Mich. Oct. 24, 2007) (finding petitioner not entitled to habeas relief based
upon trial court’s failure to rule on petitioner’s post-trial motion to compel copies
of transcripts and videotapes when petitioner was represented by appellate
counsel). Therefore, Petitioner is not entitled to relief on his second claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to Petitioner. In order to obtain a certificate
of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree
that, the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed further.

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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a
habeas petitioner’s constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims to be debatable or wrong. Id. at 484. “The district court
must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
For the reasons stated in this opinion, the Court will deny Petitioner a
certificate of appealability because he has failed to make a substantial showing of
the denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 621,
629 (E.D. Mich. 2001). The Court will also deny Petitioner leave to appeal in
forma pauperis, because the appeal would be frivolous. Id.
V.

Order
Accordingly,
IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED

WITH PREJUDICE;
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to

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appeal in forma pauperis.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 13, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 13, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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