Mahaffey v. Scutt
Filing
13
AMENDED OPINION and ORDER Denying 1 The Petition for Write of Habeas Corpus (2) A Certificate of Appealability, and (3) Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Mark Edward Mahaffey,
Petitioner,
Case No. 12-cv-13743
Hon. Judith E. Levy
Mag. David R. Grand
v.
Debra Scutt,
Respondent.
___________________________________/
AMENDED OPINION AND ORDER DENYING (1) THE
PETITION FOR WRIT OF HABEAS CORPUS, (2) A
CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO
APPEAL IN FORMA PAUPERIS
Mark Edward Mahaffey (“petitioner”), who is confined at the
Michigan Reformatory in Ionia, Michigan, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for one count of criminal sexual
conduct, second-degree (person under 13), M.C.L.A. 750.520c(1)(a). For
the reasons stated below, the Court will DENY the petition for writ of
habeas corpus.
I. BACKGROUND
1
Petitioner was charged with sexually assaulting two of his stepchildren, Lacey and Maggie Simon.
Thomas, their older brother,
testified at the Preliminary Examination that he witnessed an assault
on Lacey Simon.
Petitioner had another child with the children’s
mother by the name of Sierra Mahaffey, who was a baby at the time of
the assaults. (March 29, 2010, Presentence Report, p. 5; Preliminary
Examination Transcript [PE Tr.], May 13, 1998, pp. 10-11, 45). Lacey,
age 9, (PE Tr. pp. 45, 70), testified that petitioner sexually molested
her. (PE Tr., pp. 12-23).
The Presentence Report contains Lacey’s
detailed description of some of the episodes. (Presentence Report, p. 6).
The assaults began when she was six or seven years old, (PE Tr. p. 19),
and lasted for a period of two years. (PE Tr., p.4). Maggie Simon, age 6,
also testified that petitioner sexually molested her. (PE Tr., pp. 48-56).
Thomas Simon, age 11, testified that he saw petitioner acting
inappropriately with Lacey. (PE Tr., pp. 74-75).
Petitioner pleaded no contest to one count of criminal sexual
conduct, second-degree, before the Jackson County Circuit Court, in
exchange for dismissal of a charge of first-degree criminal sexual
2
conduct and dismissal of another second-degree criminal sexual conduct
charge. The trial court sentenced petitioner to a delayed sentence with
the agreement that if petitioner complied with certain terms and
conditions of probation, the conviction would be reduced to fourthdegree criminal sexual conduct. (Tr. February 18, 1999, p. 8).
Petitioner was found to be in violation of these terms and was
subsequently sentenced to 5-15 years imprisonment.
The Michigan Court of Appeals denied leave to appeal. People v.
Mahaffey, No. 229300, (Mich.Ct.App. October 5, 2000). Petitioner did
not appeal further.
In 2008, Petitioner filed a post-conviction motion for relief from
judgment pursuant to M.C.R. 6.500, et. seq., based on newly discovered
evidence in the form of a recanting letter from Thomas Simon, the
brother of the victims. The trial court denied the motion. People v.
Mahaffey, No. 98-88520-FC (Jackson County Circuit Court May 16,
2008). Petitioner did not appeal further. In 2009, petitioner filed a
second post-conviction motion for relief from judgment pursuant to
M.C.R. 6.500, et. seq., based on newly discovered evidence in the form of
3
a recanting letter from Maggie Simon, one of the victims, which the
Jackson County Circuit Court scheduled for an evidentiary hearing.
People v. Mahaffey, No. 02-26455-FC (Jackson County Circuit Court,
December 16, 2009). Following the hearing on the motion, the trial
court amended the information, deleting the name of one of the victims
(Maggie Simon), and deleting mention of either Thomas or Maggie
Simon’s names from the presentence report.
resentenced the petitioner.
The trial court then
People v. Mahaffey, No. 02-26455-FC
(Jackson County Circuit Court, March 5, 2010); (Tr. April 20, 2010, p.
3).
Petitioner then appealed the resentencing, which was denied.
People v. Mahaffey, No. 301958, (Mich.Ct.App. February 4, 2011); lv.
den. 490 Mich. 858, 802 N.W.2d 338 (2011).
Petitioner seeks a writ of habeas corpus on the following
grounds:(1) “new trial due to new evidence;” (2) “challenging the plea;”
and (3) ineffective assistance of counsel.1
1
The Court notes that respondent failed to address issues two or three in his answer. Petitioner, however, is not
entitled to habeas relief because of respondent’s failure to respond to these issues, because to do so “would be
tantamount” to granting a default judgment to petitioner in this case, which is a form of relief unavailable in habeas
proceedings. Alder v. Burt, 240 F. Supp. 2d 651, 677 (E.D. Mich. 2003) (citing to Allen v. Perini, 424 F. 2d 134, 138
(6th Cir. 1970)); See also Gordon v. Duran, 895 F. 2d 610, 612 (9th Cir. 1990) (failure of state to respond to five of
eight claims raised in habeas petition did not entitle habeas petitioner to default judgment on those claims). The
Court will address all of petitioner’s claims contained within his petition for a writ of habeas corpus.
4
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 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
5
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 41011.
The Supreme Court has 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, 130 S. Ct. 1855, 1862 (2010)(quoting Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997)); see also 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, 131 S. Ct. 770, 786 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
6
The Supreme Court has
emphasized “that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. (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.
“[I]f this standard is difficult to meet, that is because it was meant
to be.” Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as
amended by the AEDPA, does not completely bar federal courts from
relitigating claims that have previously been rejected in state court, it
preserves the authority for a federal court to grant habeas relief only
“in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with” Supreme Court precedent.
Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.”
7
Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens,
J., concurring in judgment)). Thus, a “readiness to attribute error [to a
state court] is inconsistent with the presumption that state courts
know and follow the law.” Woodford, 537 U.S. at 24. Therefore, 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.” Harrington, 131 S. Ct. at 786-87.
III. DISCUSSION
As a preliminary matter, the respondent contends that the
petitioner’s first claim is procedurally defaulted. This Court notes that
procedural default is not a jurisdictional bar to review of the merits of
an issue, see Howard v. Bouchard, 405 F. 3d 459, 476 (6th Cir. 2005),
and “federal courts are not required to address a procedural-default
issue before deciding against the petitioner on the merits.” Hudson v.
Jones, 351 F. 3d 212, 215 (6th Cir. 2003)(citing Lambrix v. Singletary,
8
520 U.S. 518, 525 (1997)). Application of a procedural bar would not
affect the outcome of this case, and the Court deems it more efficient in
this case to proceed directly to the merits.
A.
Petitioner is not entitled to a new trial due to new
evidence.
Petitioner contends that he has newly discovered evidence that
two of the witnesses for the prosecution recanted their testimony,
thereby establishing that he is innocent of the criminal sexual conduct
charges.
In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court
held that claims of actual innocence based on newly discovered
evidence fail to state a claim for federal habeas relief absent an
independent constitutional violation occurring in the underlying state
criminal proceeding.
Id.
Federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the constitution, not to
correct errors of fact. Id., see also McQuiggin v. Perkins, 133 S. Ct.
1924, 1931 (2013) (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual
9
innocence”).
Freestanding claims of actual innocence are thus not
cognizable on federal habeas review, absent independent allegations of
constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854-55
(6th Cir. 2007) (collecting cases).
Moreover, the Supreme Court’s subsequent decision in House v.
Bell, 547 U.S. 518 (2006) does not alter this Court’s adjudication of
petitioner’s claim, as the Supreme Court again in that case declined to
resolve whether a habeas petitioner may bring a freestanding claim of
actual innocence. Id. at 554-55. Although the Supreme Court noted
that “in a capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no
state avenue open to process such a claim,” Id. (quoting Herrera, 506
U.S. at 417), the Supreme Court has declined to recognize a
freestanding innocence claim in habeas corpus, outside of the deathpenalty context. Petitioner’s claim of new of evidence, therefore, is not
sufficient on its own. The new evidence brought forward by petitioner,
further recanting affidavits and witnesses, is viewed with “extreme
10
suspicion.” United States v. Chambers, 944 F. 2d 1253, 1264 (6th Cir.
1991); see also Byrd v. Collins, 209 F. 3d 486, 508, n. 16 (6th Cir. 2000).
“Skepticism about recantations is especially applicable in cases of child
sexual abuse where recantation is a recurring phenomenon.” United
States v. Miner, 131 F. 3d 1271, 1273-1274 (8th Cir. 1997)(quoting
United States v. Provost, 969 F. 2d 617, 621 (8th Cir. 1992)); Wilson v.
Rogers, 125 F.3d 856 (6th Cir. 1997).
In these cases when family
members are involved, the child frequently has feelings of guilt for
putting the family member in prison or another member of the family
might push the child to change the story. Miner, 131 F.3d at 1274. In
light of the fact that, in the petitioner’s case, Maggie Simon’s
preliminary examination testimony was corroborated by the testimony
of her brother, Thomas Simon, as well as the unrecanted testimony of
her sister Lacey Simon (the other victim in the case), the Court does
not view Maggie Simon and Thomas Simon’s alleged recantations as
reliable enough to grant petitioner habeas relief on the basis of newly
discovered evidence.
11
In considering federal habeas petitions, a federal district court
must presume the correctness of state court factual determinations,
and a habeas petitioner may rebut this presumption only with clear
and convincing evidence. Bailey v. Mitchell, 271 F.3d 652, 656 (6th
Cir.2001); Jones v. Smith, 244 F.Supp.2d 801, 808 (E.D.Mich.2003); 28
U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting this
presumption “by clear and convincing evidence.”
22 U.S.C. §
2254(e)(1). Furthermore, a federal court “may consider how the timing
of the submission and the likely credibility of the affiants bear on the
probable reliability of that evidence.” Schlup v. Delo, 513 U.S. 298, 332
(1995).
There are a number of problems with the two recanting
“affidavits.”
First, the purported “affidavits” are in the form of
unauthenticated letters, one from the brother of the victims and one
from one of the victims.
In general, an unsworn affidavit from a
recanting witness is of questionable validity. See Cress, 484 F. 3d at
855 (rejecting actual innocence claim that was based in part on an
unsworn statement from a recanting witness).
12
Petitioner attached the brother’s “affidavit,” recanting the
testimony given at the preliminary examination, to his first motion for
relief from judgment. After reviewing the older brother’s “affidavit,”
the trial court issued an order denying petitioner’s first motion for
relief from judgment finding that he “failed to show good cause or
actual prejudice.”
The court also held that although petitioner
“challenges the plea, he has not shown any defect in the plea.” When
considering the brother’s letter recanting the testimony given at the
preliminary exam, the trial court judge denied petitioner’s request to
withdraw his plea citing:
[T]here was other testimony besides Thomas Simon, and
Defendant has failed to attach any affidavit which
establishes that the plea was involuntary.
Even if the statements in Thomas Simon’s letter were
repeated in an Affidavit, he does not in any way establish
the Defendant’s innocence. He simply says that he is
unable to corroborate what his sister said; although, in fact,
he believes what they said. As such, even if this was in
affidavit form it would still be insufficient.
People v. Mahaffey, No. 98-88520-FC (Jackson County Circuit Court
May 16, 2008).
13
Petitioner’s second motion for relief from judgment attached the
letter allegedly written by one of the victims (Maggie Simon) who also
recanted her testimony. The purported affidavit from Maggie Simon is
even more problematic than the statement from the brother. The trial
court issued an order, in connection with the second motion for relief
from judgment, finding that the letter claiming that she lied was
unclear as to when it was written, whether she had assistance in
writing the letter, to whom it was originally sent, or when petitioner
received a copy. The trial court judge ascertained from the letter that
it was allegedly written when she was 16 years old, 10 years from
when she claimed petitioner inappropriately touched her at age 6. The
court further found that since neither letter was notarized (though
attributed to the older brother, Thomas, and one of the victims,
Maggie), it could not be certain who wrote the letters.
Furthermore,
the purported affidavit of the victim does not offer any convincing
explanation as to why she waited ten years to recant her testimony.
See Lewis v. Smith, 100 Fed. Appx. 351, 355 (6th Cir. 2004) (proper for
district court to reject as suspicious a witness’ recanting affidavit made
14
two years after petitioner’s trial); Strayhorn v. Booker, 718 F. Supp. 2d
846, 874 (E.D. Mich. 2010) (long-delayed affidavit of accomplice
recanting statement to police did not establish petitioner’s actual
innocence when it was made almost two years after petitioner’s trial);
Olson v. United States, 989 F.2d 229, 231 (7th Cir. 1993)(recantation
more than four years after trial testimony was dubious).
Here, the trial court concluded by ordering an evidentiary hearing
which resulted in petitioner’s motion being granted in part and denied
in part. The trial court granted petitioner’s motion in part by ordering
a resentencing and ordering that “[t]he information be amended
deleting Maggie Simon’s name,” and ordering that “[t]he presentence
report be amended deleting all mention of either Thomas or Maggie
Simon’s names.”
The order also denied in part petitioner’s motion
without explanation. People v. Mahaffey, No. 02-26455-FC (Jackson
County Circuit Court, March 5, 2010).
A review of the prior order
granting petitioner’s evidentiary hearing clearly demonstrates that the
trial court denied petitioner’s second motion for relief from judgment in
part based on the earlier finding that “Lacy (sic) had not recanted, and
15
even without Thomas’s support, her testimony was far more
incriminating than Maggie’s.” See People v. Mahaffey, No. 02-26455FC, *3 (Jackson County Circuit Court, December 16, 2009). Although
the trial court granted in part petitioner’s motion for relief from
judgment eliminating Maggie from the information and deleting
mention of Maggie and Thomas from the presentence report, the most
incriminating evidence to sustain petitioner’s conviction did not come
from the recanting witnesses. The court found sufficient evidence to
sustain petitioner’s conviction based on the testimony given by Lacey
Simon and found that she had not recanted. Petitioner’s request for
relief based on new evidence is without merit.
B.
Petitioner is not entitled to withdraw his no-contest
plea.
Petitioner’s second claim alleges that under Michigan Law, he has
a right to withdraw his no-contest plea.
He also states that the
evidence proves that he is innocent and that he stated on the record
that he wanted to plead not guilty.
Petitioner has no absolute right to withdraw his no-contest plea.
See Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748, 655 (E.D. Mich.
16
2005) (internal citations omitted). Unless the plea violated a clearlyestablished constitutional right, the state court’s decision to deny a
withdrawal of a criminal defendant’s guilty or no-contest plea is
discretionary. Id.
A guilty or no-contest plea that is entered in state court must be
voluntarily and intelligently made. See Shanks, 387 F. Supp. 2d at 749;
Doyle v. Scutt, 347 F. Supp. 2d 474, 482 (E.D. Mich. 2004) (citing
Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In order for a plea of
guilty or no-contest to be voluntarily and intelligently made, the
defendant must be aware of the “relevant circumstances and likely
consequences” of his plea. Hart v. Marion Corr. Inst., 927 F. 2d 256,
257 (6th Cir. 1991); Shanks, 387 F. Supp. 2d at 749. The defendant
must also be aware of the maximum sentence that can be imposed for
the crime for which he or she is pleading guilty or no-contest. King v.
Dutton, 17 F. 3d 151, 154 (6th Cir. 1994). When a petitioner brings a
federal habeas petition challenging his plea of guilty or no-contest, the
state generally satisfies its burden by producing a transcript of the
state court proceedings showing that the plea was made voluntarily.
17
Garcia v. Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The factual
findings of a state court that the guilty plea was properly made are
generally accorded a presumption of correctness, and the petitioner
must overcome a heavy burden if the federal court is to overturn these
findings by the state court. Id.
Petitioner argues that he should be allowed to withdraw his plea
because he is actually innocent of the charges.1 The record reflects,
however, that petitioner entered his plea of no-contest freely and
voluntarily, and petitioner makes no claim otherwise.
Petitioner’s
second claim to withdraw his plea, therefore, is without merit.
C.
Petitioner fails to raise sufficient evidence of
ineffective assistance of counsel to support his habeas
petition.
Petitioner contends that he was deprived of the effective
assistance of trial counsel when trial counsel failed to argue facts, failed
to question the lack of a medical examination from a doctor, and failed
to question Lacey Simon after her brother and sister recanted their
statements.
Petitioner is not entitled to relief based on a claim of actual innocence due to recanting witnesses.
Because recantation testimony is regarded with “extreme suspicion,” the victim’s alleged recantation
is not the type of reliable evidence that would establish petitioner’s actual innocence to excuse his
default. See e.g. Carter v. Mitchell, 443 F.3d 517, 539 (6th Cir. 2006).
1
18
An unconditional guilty plea constitutes a waiver of all pre-plea
non-jurisdictional constitutional deprivations.
Tollett v. Henderson,
411 U.S. 258, 267 (1973). A no-contest plea also constitutes a waiver of
all non-jurisdictional defects. United States v. Freed, 688 F. 2d 24, 25
(6th Cir. 1982); Shanks, 387 F. Supp. 2d at 747. Pre-plea claims of
ineffective assistance of trial counsel are considered nonjurisdictional
defects that are waived by a guilty or no-contest plea. United States v.
Stiger, 20 Fed. Appx. 307, 309 (6th Cir. 2001); see Siebert v. Jackson,
205 F. Supp. 2d 727, 733-34 (E.D. Mich. 2002) (habeas petitioner’s
claims regarding alleged deprivations of his constitutional rights that
occurred before his guilty plea, as a result of his trial counsel’s alleged
ineffective assistance, were foreclosed by his guilty plea, where he
stated at plea that he was satisfied with counsel’s representation, and
he did not complain of counsel’s advice concerning plea agreement).
A reading of the plea transcript demonstrates that petitioner
clearly waived his right to dispute facts and question witnesses at the
time of the entry of his no contest plea. In regards to the allegation
that “[a]ll attorneys before appeals court never did there (sic) job[,]” the
19
claim is unsupported and conclusory.
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). Petitioner’s third claim is without merit.
D. Denial of petitioner’s request for a certificate of
appealability and to appeal in forma pauperis.
The Court will deny a certificate of appealability.
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.
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
20
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 reasonable jurists
would not find this Court’s assessment of petitioner’s claims to be
debatable or wrong. See Millender v. Adams, 187 F. Supp. 2d 852, 880
(E.D. Mich. 2002). The Court further concludes that petitioner should
not be granted leave to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed.R.App. P. 24(a).
V. ORDER
Accordingly, the Court DENIES WITH PREJUDICE the petition
for a writ of habeas corpus.
The Court DENIES a certificate of
appealability and leave to appeal in forma pauperis.
IT IS SO ORDERED.
21
Dated: August 25, 2014
Ann Arbor, Michigan
s/Judith E. Levy___________
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 25, 2014.
s/Felicia M. Moses__________
FELICIA M. MOSES
Case Manager
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