Gregory v. Balcarcel
Filing
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OPINION and ORDER Denying 1 the 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. (MacKay, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EARL LAMAR GREGORY,
Petitioner,
Civil Case No. 4:17-cv-13619
v.
Honorable Linda V. Parker
ERICK BALCARCEL,
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
Petitioner Earl Lamar Gregory (“Petitioner”) was convicted of first-degree
criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a), and now seeks a
writ of habeas corpus under 28 U.S.C. § 2254. The sole ground for relief is that
the evidence at trial was insufficient to support the jury’s verdict. Respondent
urges the Court to deny relief because the state appellate court’s decision was
objectively reasonable. The Court agrees. Accordingly, the Court is denying the
petition.
I. Background
Petitioner was charged with sexually penetrating a six-year-old girl, referred
to as “WR.” WR was seven years old when she testified at Petitioner’s trial in
Oakland County Circuit Court. As described by the state court:
The events that gave rise to defendant’s conviction occurred in
June of 2013, when defendant accompanied his caregiver, AR, and
another person1 on an overnight trip from Ohio, where defendant
resided, to Michigan pursuant to their involvement in a stage play put
on by AR. The party stopped on the way home to see AR’s cousin,
YW, at YW’s house. Also present were several other people,
including YW’s daughter, who was six years old at the time, WR. AR
testified that defendant was only out of his eyesight when defendant
went to the bathroom. At some point, YW noticed that WR was acting
uncharacteristically quiet and standoffish, and she reacted with
apparent disgust to defendant saying “there’s my girl” to her. YW
asked WR what was wrong, and she replied that “that man is trying to
get me to do nasty things,” pointing to defendant. YW took [WR]
aside and [WR] explained that defendant had kissed her and touched
her buttocks. Later that evening, WR also told YW that defendant had
made her perform oral sex on him. At trial, WR specified that the
events took place in the bathroom. The next day, YW took WR to the
police to report the incident, and she was directed to take WR to the
hospital for a pediatric forensic examination; she was subsequently
also referred to Care House for an interview and counseling. A few
days before defendant’s preliminary examination, WR further
disclosed that defendant had also licked her vagina.
People v. Gregory, No. 326567, 2016 WL 3030878, at *1 (Mich. Ct. App. May 26,
2016) (footnote in original).
There was additional evidence introduced at trial that Petitioner was a highfunctioning developmentally disabled individual, but he could read and
communicate. He resided in an assisted living home with 24-hour supervision. He
wrote and recited rap music, and he performed several times in AR’s play.
Other than his name, there is no testimony from or regarding the other person.
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At Petitioner’s trial, an Ohio detective, David Williams, testified that he and
another detective interviewed Petitioner on July 29, 2013. At first, Petitioner
denied being in the bathroom with WR on the day in question, and when the
detectives informed him of WR’s allegations, he denied the accusation or stated
that he did not remember anything like that happening.
According to Detective Williams, about halfway through the interview,
Petitioner stated that WR had followed him into the bathroom, given him a hug,
kissed him on the lips, and that he returned the kiss. Detective Williams told
Petitioner that WR was saying she licked and sucked Petitioner’s private.
Detective Williams then asked Petitioner, “Is that correct” or “Is that accurate?”
Petitioner answered “Yes,” and also stated that he had not ejaculated. Petitioner,
however, never described the conduct that he was charged with doing and, at one
point, said, “Let me tell you like this, I didn’t do it.”
During the interview, Petitioner volunteered information that he had a
mother and sister. Further, Petitioner stated that he felt badly about the incident
and did not know why he does what he does. He also told the detectives that, if
given a chance to talk to his relatives, he would tell them he was sorry.
Petitioner did not testify at trial or produce any witnesses. His defense was
that he was innocent of the charged offense and that, at most, he was guilty of
inappropriately kissing WR.
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The trial court instructed the jury on first-degree criminal sexual conduct and
on the lesser charge of second-degree criminal sexual conduct. On November 18,
2014, the jury found Petitioner guilty, as charged, of first-degree criminal sexual
conduct. On January 15, 2015, the trial court sentenced Petitioner to prison for
twenty-five to forty years, with credit for 511 days.
The Michigan Court of Appeals affirmed Petitioner’s conviction. Gregory,
2016 WL 3030878, at *1. On December 28, 2016, the Michigan Supreme Court
denied Petitioner’s application for leave to appeal. People v. Gregory, 888 N.W.2d
82 (Mich. 2016). Petitioner filed the instant pro se federal habeas corpus petition
on November 6, 2017.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires federal habeas petitioners who challenge
a matter “adjudicated on the merits in State court” to show that the
relevant state court “decision” (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law,” or (2)
“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). Deciding whether a state court’s decision “involved” an
unreasonable application of federal law or “was based on” an
unreasonable determination of fact requires the federal habeas court to
“train its attention on the particular reasons—both legal and factual—
why state courts rejected a state prisoner’s federal claims,” Hittson v.
Chatman, 576 U.S. --, --, 135 S.Ct. 2126, 2126, 192 L.Ed.2d 887
(2015) (GINSBURG, J., concurring in denial of certiorari), and to
give appropriate deference to that decision, Harrington v. Richter, 562
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U.S. 86, 101-102, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011).
Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018). When, as in this case, the last
state court to decide a prisoner’s federal claim explains its decision on the merits in
a reasoned opinion, “a federal habeas court simply reviews the specific reasons
given by the state court and defers to those reasons if they are reasonable.” Id. at
1192.
“[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 statecourt rulings, and demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). (internal quotation marks and
citation omitted). In fact, “[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
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understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
“[R]eview 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). “Furthermore, state findings of fact are presumed to be correct
unless the defendant can rebut the presumption by clear and convincing evidence.”
Baze v. Parker, 371 F.3d 310, 318 (6th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).
III. Analysis
Petitioner alleges that he was denied due process of law because the
prosecution’s case did not rise to the level of proof beyond a reasonable doubt.
Petitioner maintains that there was no credible and reliable evidence to support the
testimony that he put his penis in WR’s mouth while four other adults and four
children besides WR were present in the home.
The Michigan Court of Appeals rejected Petitioner’s challenge to the
sufficiency of the evidence and disagreed with Petitioner’s argument that WR’s
testimony should not be believed. The Court of Appeals concluded that WR’s
testimony satisfied the elements of the charged offense.
A. Clearly Established Federal Law
The Due Process Clause of the United States Constitution “protects the
accused against conviction except upon proof beyond a reasonable doubt of every
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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 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).
Under AEDPA, the Court’s “review of a state-court conviction for
sufficiency of the evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693,
698 (6th Cir. 2018). 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. “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.
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The federal court instead may do so only if the state court decision was
‘objectively unreasonable.’” Id.
“[T]his standard is difficult to meet,” no doubt, but “that is because it
was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct.
770, 178 L.Ed.2d 624 (2011). “[H]abeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Id. at 102-03,
131 S. Ct. 770 (internal quotation marks and citation omitted).
Thomas, 898 F.3d at 698.
B. 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. First-degree criminal sexual conduct, as charged in this case,
required the prosecution to prove that WR was under the age of thirteen at the time
of the incident, that Petitioner was over the age of seventeen, and that Petitioner
sexually penetrated the complainant. Mich. Comp. Laws §§ 750.520b(1)(a) and
750.520b(2)(b); People v. Lockett, 814 N.W.2d 295, 307 (Mich. Ct. App. 2012).
“‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body
or of any object into the genital or anal openings of another person’s body. . . . ”
Mich. Comp. Laws § 750.520a(r). “In criminal sexual conduct cases, a victim’s
testimony may be sufficient to support a defendant’s conviction and need not be
corroborated.” People v. Solloway, N.W.2d 255, 262 (Mich. Ct. App. 2016) (citing
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People v. Brantley, 823 N.W.2d 290 (Mich. Ct. App. 2012), and Mich. Comp.
Laws § 750.520h), leave to appeal denied, Solloway, 894 N.W.2d 604 (Mich.
2017).
The parties’ ages were not in dispute here. Moreover, WR testified that, on
the day in question, Petitioner beckoned her into the bathroom, asked her to close
the door, and then told her to suck his penis. Because he was seated on the toilet,
she got on her knees and sucked his penis. (11/17/14 Trial Tr. at 256-65.) When
the prosecutor asked WR at trial whether Petitioner’s penis was inside or outside
her mouth, WR answered that Petitioner’s penis went inside her mouth and that she
“almost choked.” Id. at 262. This testimony, when viewed in a light most
favorable to the prosecution, was sufficient to support the jury’s finding that
Petitioner sexually penetrated WR.
Although Petitioner implies that WR’s testimony was not credible, “[a]ttacks
on witness credibility . . . ‘are simpl[y] challenges to the quality of the
government’s evidence and not the sufficiency of the evidence.” United States v.
Taylor, 800 F.3d 701, 712 (6th Cir. 2015) (quoting United States v. Gibbs, 182
F.3d 408, 424 (6th Cir. 1999)) (alterations added). In addition, 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). A reviewing court does not redetermine the credibility of witnesses
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whose demeanor has been observed by the trier of fact. Id. (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). “It is the province of the factfinder to
weigh the probative value of the evidence and resolve any conflicts in testimony.
Id. (citing Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992)).
The Michigan Court of Appeals rejected Petitioner’s sufficiency of the
evidence claim, reasoning:
The prosecution presented ample evidence from which a rational jury
could conclude that WR’s testimony was credible and established the
essential elements of CSC-I. Though the details of WR’s description
of the events varied over time, within hours of the occurrence WR did
indicate that defendant made her perform oral sex on him. Thereafter,
WR continued to maintain that she performed fellatio on defendant
and testified to this effect at trial. The consistency in this detail of
WR’s recollection—which is, after all, the crux of the charge—can
easily justify the jury’s finding that WR’s testimony was credible.
Gregory, 2016 WL 3030878, at *2. The Court of Appeals also noted that, even
though WR’s testimony did not have to be corroborated,
the prosecution offered evidence from other witnesses to support
WR’s claims. For example, AR testified that defendant did leave the
kitchen to use the bathroom. YW described WR’s uncharacteristically
negative reaction to defendant after the occurrence. YW also recalled
that, after the incident, WR drew a picture of a man with an erect
penis, including pubic hair, and said, “[T]his is what the man made
me do.” Her testimony alone would be sufficient, but additional
evidence nonetheless bolsters it.
Id.
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The state court’s ultimate conclusion that there was sufficient evidence to
support the jury’s verdict was neither contrary to, nor an unreasonable application
of, Jackson. Thus, Petitioner is not entitled to relief on his claim.
IV. Conclusion
The state appellate court’s adjudication of Petitioner’s claim was objectively
reasonable and not so lacking in justification that there was an error beyond any
possibility for fairminded disagreement.
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED because Petitioner has not “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Moreover, reasonable jurists could
not disagree with the Court’s resolution of Petitioner’s constitutional claim, nor
conclude that the sole ground for relief deserves encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis if he appeals this decision, because he was allowed to proceed in forma
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pauperis in this Court, and an appeal could be taken in good faith. 28 U.S.C.
§ 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 8, 2019
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