Mitchell v. Woods
MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-10764
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti
OPINION AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS , DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
This is a habeas case brought by a Michigan prisoner under 28
U.S.C. ' 2254.
After a jury trial in Wayne County Circuit Court,
Petitioner Sedrick Mitchell was convicted of one count of forced labor
involving criminal sexual conduct, MICH. COMP. LAWS ' 750.520b(1)(f),
two counts of first-degree criminal sexual conduct, MICH. COMP. LAWS
' 750.520b(1)(b), one count of pandering, MICH. COMP. LAWS ' 750.455,
two counts of accepting earnings from a prostitute, MICH. COMP. LAWS
' 750.457, and one count of conducting a criminal enterprise. MICH.
COMP. LAWS ' 750.159i(1). Petitioner was sentenced as a third-time
habitual felony offender to a series of concurrent terms, with the longest
being terms of thirty-five to sixty years for the criminal sexual conduct
Read in the light most favorable to Petitioner, the pro se petition
appears to raise nine claims: (1) Petitioner was denied the effective
assistance of counsel at trial (Dkt. 1 at 4); (2) Petitioner’s sentence
constitutes cruel and unusual punishment (id. at 14); (3) the prosecutor
violated Petitioner’s due process rights by amending the criminal
information (id. at 15); (4) the trial court erroneously instructed the jury
(id. at 21); (5) the prosecutor committed misconduct (id. at 25); (6) the
victims are not entitled to restitution (id. at 28); (7) Petitioner’s right to
be free from double jeopardy was violated by multiple convictions
resulting from a single sexual penetration (id. at 30); (8) there was
insufficient evidence presented at trial to sustain the criminal sexual
conduct convictions (id. at 10-13); and (9) the trial court incorrectly
scored the sentencing guidelines. (Id. at 16-17.)
For the reasons set forth below, Petitioner’s claims are denied
because they are without merit. Petitioner is also denied a certificate of
appealability and leave to proceed in forma pauperis on appeal.
This Court recites verbatim the relevant facts relied on by the
Michigan Court of Appeals, which this Court must presume are 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).
In July 2010, C. M. left the home of her grandmother
because she was over protective. C. M. learned of defendant
through a friend and contacted him. He took her to a home
near Eastland Mall and engaged in sex with her. Initially,
he sent her to live in a drug house with a 19-year old male.
Then, he began to establish prostitution customers for C. M.
and another girl named “Rosie” that occurred in homes.
However, in early August 2010, Rosie left defendant.
Defendant explained that he wanted C. M. to make more
money in light of Rosie’s departure, and he took C. M. to
work on the streets at the corner of Livernois and Fenkell in
the city of Detroit. Defendant established the prices that
C. M. would charge for her services and followed her while
she worked the streets. She turned over any money she
earned to him. If C. M. complained about having to work or
said “something smart” to defendant, he would strike her.
C. M. was forced to work every day from 8:00 p.m. until 6:00
a.m., except Sundays. On Sunday, defendant gave her
money to go shopping. While she worked, defendant gave
her $10 for food.
Before meeting defendant, C. M. did not engage in
prostitution. Defendant maintained control over C. M. by
threatening to kill her or her grandmother if C. M. tried to
leave him. Defendant always had a gun with him. C. M.
observed defendant strike other people, including Rosie. On
one occasion, defendant forced C. M. to perform a sexual act
upon defendant in front of his friends by holding a gun to her
head. Ultimately, C. M. left defendant on August 25, 2010,
after the two argued over C. M.’s refusal to go to work. He
threatened her with a gun, but when he turned, she struck
him with a bottle and ran. C. M. called the police from a gas
station, hid from view as the police drove her by defendant’s
home, and identified defendant. However, defendant was
not apprehended at that time.
Although D. J. did not work for defendant at the same time
as C. M., her testimony was remarkably similar.
Specifically, in early November, 2010, D. J. ran away from
home after being sexually abused by a family member. D. J.
agreed to go to a party at a home near Eastland Mall where
she encountered defendant. Defendant asked D. J. how old
she was, and she said, “15.” Defendant responded, “Now,
you’re 19.” He engaged in sexual intercourse with D. J., and
the next day, sent her out to work on the streets as a
prostitute with another woman named “LaTonya.” When
advised by LaTonya that they had not earned enough money
for defendant, D. J. left defendant’s residence and stayed
away for several weeks.
On December 25, 2010, D. J. returned to defendant’s home
after contracting a sexually transmitted disease. D. J.
needed to have a prescription filled and knew that defendant
would help her obtain the prescription. She promised
defendant that she would not leave him again, and he got
the pills that she needed. The next evening, defendant
picked up D. J. and two other girls and took them to the area
of Fenkell and Livernois to work the streets. D. J. continued
to work for defendant until she was picked up by the police
and returned to her family home. After a family dispute, she
was placed in a mental hospital for five days, but upon her
release, D. J. contacted defendant. Defendant picked her up,
she changed her clothes, and he drove her to Fenkell and
Livernois to work as a prostitute.
D. J. worked every day for defendant, starting between 7:00
and 9:00 p.m., and returning between 8:00 and 10:00 a.m.
One night, D. J. only earned $40. Defendant slapped her
across the face and told her that would not happen again.
D. J. observed defendant strike other girls, and he told the
girls that if they left, defendant would find them and kill
them. D. J. admitted that she engaged in sexual intercourse
with defendant voluntarily and even initiated sex with him.
However, one sexual assault provided the motivation for
D. J. to leave defendant permanently. Defendant attempted
to anally penetrate D. J. while he choked her, and when she
resisted, he forced vaginal penetration as he continued to
Shortly after this assault, D. J. made
arrangements to have a friend pick her up when defendant
was not home.
C. M. and D. J. came to the attention of a task force
investigating child exploitation. The authorities learned of
C. M. when reviewing the August 25, 2010 police report. A
relative of D. J.’s called the authorities to report her as
missing. The information provided by these girls led to an
investigation of defendant, and the discovery that he was
identified on a social networking website as “Pimping Rock.”
Defendant’s theory of the case was that once the minors
came into contact with the police, they falsely accused
defendant to deflect from their own misconduct. On cross
examination, C. M. admitted that she had posted
information on the Internet that was incorrect, and D. J.
admitted that she had stolen items from her family and a
threat against a family member caused her to be sent to a
mental hospital. Although C. M. accused defendant of
assault and contacted the police, defendant was not arrested
at that time, but C. M. was detained for a matter unrelated
to defendant. Despite the attack on the credibility of the
witnesses, defendant was convicted for his role in exploiting
the teenage runaways, sexually assaulting them, forcing
them to engage in prostitution, and taking their earnings.
People v. Mitchell, No. 311605, 2014 Mich. App. LEXIS 235, at *2-7
(Mich. Ct. App. Feb. 6, 2014); (see Dkt. 11-19 at 1-3).
Following Petitioner’s conviction, he filed an appeal of right. His
appellate counsel filed a brief raising two claims: (1) defendant was
denied the effective assistance of counsel at trial; and (2) the sentences
imposed violated defendant’s right to be free from cruel and unusual
Mitchell, 2014 Mich. App. LEXIS 235, at *7-17.
Petitioner also filed a pro se supplemental brief that raised what now
form his third through ninth habeas claims.
Id. at *17-36.
Michigan Court of Appeals affirmed Petitioner’s convictions and
sentences. Id. at *36.
Petitioner subsequently filed an application for leave to appeal to
the Michigan Supreme Court, raising most of the claims he raised
before the Michigan Court of Appeals, omitting only his claims that the
restitution order was invalid, that his right to be free from double
jeopardy was violated, and that the sentencing guidelines were scored
incorrectly. (See Dkt 11-20.) His pro se application also added two
additional allegations of ineffective assistance of counsel.
The Michigan Supreme Court denied the application because it
was not persuaded that the questions presented should be reviewed by
People v. Mitchell, 497 Mich. 902 (2014).
Michigan Court of Appeals was the last state court to adjudicate
Under the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can
order habeas relief only if the state’s adjudication of a 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. 28 U.S.C. § 2254(d).
When applying these standards, this Court is to examine the holdings of
the Supreme Court as they existed at “the time of the relevant statecourt decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
Court can, however, look to decisions of other courts to determine
whether a legal principle has been clearly established by the Supreme
Court. Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009); Smith v.
Stegall, 385 F.3d 993, 998 (6th Cir. 2004).
“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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). “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.” Id. at 103
(internal quotation omitted).
a. Ineffective assistance of counsel claim
Petitioner claims that he was denied his Sixth Amendment right
to effective assistance of his trial counsel. Petitioner argues that trial
counsel was constitutionally deficient because he stipulated to the
admission of a police report that contained inculpatory information,
conceded that Petitioner was guilty of firearm and sexual conduct
charges, failed to move to adjourn the case to locate the author of the
police report, and failed to remove a biased juror. (Dkt. 1 at 4-8.)
To establish a claim of ineffective assistance of counsel, Petitioner
must show that (a) “counsel’s performance was deficient,” and (b) the
“deficient performance prejudiced the defense.”
Washington, 466 U.S. 668, 687 (1984).
See Strickland v.
To satisfy the performance
element, a defendant must point to some action “outside the wide range
of professionally competent assistance.” Id. at 690. To satisfy the
prejudice element, “[t]he 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.” Id. at 694.
On federal habeas review of a state court decision on the merits, a
court must apply a “doubly” deferential standard of review under
“[T]he 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.” Richter, 562
U.S. at 105.
Regarding Petitioner’s first argument—that trial counsel was
ineffective because he stipulated to the admission of a police report that
was authored by an officer who was unavailable to testify at trial—the
Michigan Court of Appeals rejected the claim on the merits:
The defense theory of the case was that the testimony of the
victims was not credible. To support the challenge to the
credibility of C. M., defense counsel sought to call the officer
who prepared the August 25, 2010 police report in response
to C. M.’s emergency call. However, the officer did not
appear at trial. In order to allow the trial to continue, the
prosecution and the defense stipulated to admit the police
report at trial.
Generally, police reports are inadmissible hearsay. MRE
801(c); In re Forfeiture of a Quantity of Marijuana, 291 Mich
App 243, 254; 805 NW2d 217 (2011). The stipulation to
admit the police report is not a mistake apparent on the
record, and this Court cannot examine the admission of the
report with the benefit of hindsight. [People v Dunigan, 299
Mich App 579, 589-590; 831 NW2d 243 (2013)]; [People v
Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009)].
Although appellate counsel correctly notes that the police
report contained information that corroborated the
testimony by the victims, the report contained information
critical to the defense. The corroborating information in the
report was that C. M. identified defendant as a man who
held her captive and forced her to engage in sex. However,
C. M. also testified that defendant held a gun to her, and she
was forced to strike him with a bottle to leave the house.
Despite this testimony, the police report did not contain
C. M.’s account of a gun or an injury to defendant from a
bottle to allow her escape. Additionally, notwithstanding
C. M.’s statements and identification, defendant was not
apprehended by the police and charged with any crimes at
that time. On the contrary, as a result of her emergency
call, C. M. was detained for a matter unrelated to
Consequently, the stipulated
admission of the police report disclosed contradictions by
C. M. to the jury.
More importantly, the admission of the police report proved
beneficial to the defense because the jury acquitted
defendant of the charges related to C. M.’s departure from
defendant’s home. Specifically, C. M. testified that she
argued with defendant about having to work. To obtain
C. M.’s cooperation, defendant allegedly took C. M.’s clothes
and threatened her with a gun. Defendant was charged with
three crimes arising from this argument, felonious assault,
felony-firearm, and felon in possession, but was acquitted of
all three of these offenses. The jury also acquitted defendant
of the first-degree CSC charge wherein C. M. testified that
she was forced to engage in a sexual act with defendant in
front of others at gunpoint. “A jury has the right to
disregard all or part of the testimony of a witness.” People v
Goodchild, 68 Mich App 226, 235; 242 NW2d 465 (1976). In
light of the admission of the police report which did not
contain any reference to a gun and the acquittal of the gun
offenses, the factual predicate for a claim of ineffective
assistance of counsel was not established. [People v Hoag,
460 Mich 1, 6; 594 NW2d 57 (1999)].
Despite the acquittal of four offenses related to C. M.’s
testimony and the content of the police report, defendant
alleges that the admission of details in the police report that
corroborated the testimony by the victims caused him to be
convicted of eight offenses. However, the factual predicate to
support that allegation is not apparent on the record and
constitutes mere speculation.
After the parties
stipulated to the admission of the police report, the trial
court noted its policy that the exhibit would be available to
the jury, but not submitted to them unless requested. A
request by the jury to examine the exhibits is not contained
in the lower court record. Furthermore, there was ample
corroborating evidence to support defendant’s convictions
irrespective of the content of the police report.
Mitchell, 2014 Mich. App. LEXIS 235, at *7-14; (see Dkt. 11-19 at 4-5).
The Michigan Court of Appeals opinion on the merits is a
“reasonable argument that counsel satisfied Strickland’s deferential
standard,” so habeas relief cannot be granted with respect to this
argument. See Richter, 562 U.S. at 105.
Although Petitioner provides reasons to undercut his trial
counsel’s decision to stipulate to admission of the police report, counsel’s
strategy “need not be particularly intelligent or even one most lawyers
would adopt.” Cone v. Bell, 243 F.3d 961, 978 (6th Cir. 2001), rev’d on
other grounds, 535 U.S. 685 (2002). “Strategic choices by counsel, while
not necessarily those a federal judge in hindsight might make, do not
rise to the level of a Sixth Amendment violation.” McMeans v. Brigano,
228 F.3d 674, 682 (6th Cir. 2000).
Here, trial counsel’s decision to use the police report to attack
C. M.’s credibility seems to have been a professionally competent
tactical decision based on counsel’s calculation that on balance the
report was more helpful than harmful, given that the jury acquitted
Petitioner on the charges directly evidenced by C. M.’s statements
contained in the report.
Accordingly, Petitioner has failed to
demonstrate entitlement to relief with respect to his first allegation of
ineffective assistance of counsel.
The Michigan Court of Appeals also rejected Petitioner’s second
allegation—that trial counsel was constitutionally deficient because he
conceded that Petitioner was guilty of firearm and sexual conduct
charges—on the merits:
Although not raised in the statement of the questions
presented, defendant further asserts that trial counsel was
ineffective during closing arguments . . . by conceding that
defendant may be guilty of the three firearm related charges
and a CSC offense. . . . [C]ounsel did not concede that
defendant was guilty of four offenses; the context of the
entire closing argument reveals that he argued that
reasonable doubt existed with regard to all of the charged
offenses. In fact, the jury acquitted defendant of the four
offenses appellate counsel contends were conceded.
Defendant failed to meet this burden with regard to this
claim of error.
Mitchell, 2014 Mich. App. LEXIS 235, at *14-15; (Dkt. 11-19 at 5-6).
For the same reasons as those set forth above, the Michigan Court
of Appeal’s decision was not unreasonable. Petitioner was acquitted of
the firearm offenses and related sexual conduct charge (i.e., forcing
C. M. to perform oral sex at gunpoint), the offenses that Petitioner
claims trial counsel conceded during closing argument. And as noted by
the state court, there is nothing on the record to support Petitioner’s
allegation that trial counsel conceded these offenses as a factual matter.
Thus, the state court factual finding was not unreasonable. There is no
basis on which to conclude that trial counsel was ineffective for making
any such concession.
Petitioner’s third and fourth allegations of ineffective assistance of
counsel were not presented to the Michigan Court of Appeals in either
appellate counsel’s brief or in Petitioner’s supplemental pro se brief.
(See Dkt. 11-19 at 58-66, 117-151.) Rather, they were first presented to
the state courts in Petitioner’s application for leave to appeal, filed in
the Michigan Supreme Court, as New Issues I and II. (See Dkt. 11-20
at 10-11.) Because these arguments were not presented to the state
courts and are thus unexhausted, habeas relief cannot be granted on
these grounds. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The
Court may nevertheless deny relief with respect to unexhausted claims
if it can determine that they lack merit. 28 U.S.C. § 2254(b)(2).
In his first new claim, Petitioner argues that his trial counsel was
ineffective for failing to seek an adjournment so that the officer who
authored the police report noted above could provide testimony.
Petitioner makes the conclusory statement that the officer “would have
provided the jury with reasonable doubt to convict” based on “the
testimony.” (Dkt. 11-20 at 10.) Petitioner proffers no evidence that the
officer would have testified favorably. Nor does he present any evidence
that his trial counsel failed to consider moving for an adjournment.
Absent any affidavit or other evidence establishing what a
potential witness would specifically say that would be exculpatory,
Petitioner cannot establish ineffective assistance of counsel on this
See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005)
(“[Petitioner] has not introduced affidavits or any other evidence
establishing what [potential witnesses] would have said. . . . In the
absence of any evidence showing that they would have offered specific
favorable testimony, [Petitioner] cannot show prejudice from counsel’s
strategy recommendation not to introduce this evidence.”). “It should go
without saying that the absence of evidence cannot overcome the ‘strong
presumption that counsel’s conduct [fell] within the wide range of
reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17
(2013) (quoting Strickland, 466 U.S. at 689). Thus, Petitioner cannot be
granted habeas relief based on this allegation.
Finally, Petitioner asserts that his counsel was ineffective for
failing to strike a juror on the grounds that she was biased.
(Dkt. 11-20 at 11.) The record shows that during jury selection, one
juror initially indicated that she might not be able to be fair. But after
further discussion with counsel and the trial court, the juror indicated
that she could be fair. (Dkt. 11-12 at 118-20.) The juror also indicated
during questioning that her brother had been falsely accused of a crime.
(Id. at 119.)
It was not constitutionally deficient to decline to challenge this
juror. Rather, the Court can see why trial counsel would not. The
juror’s indication that a relative had been falsely accused of a crime
suggests that trial counsel made a reasonable tactical decision of the
kind insulated from review under Strickland. Moreover, there is no
evidence that the juror in question was actually biased against
Petitioner, preventing him from showing that he was prejudiced by his
counsel’s decision not to move to strike the juror. When a petitioner
claims ineffective assistance of counsel for failing to strike a biased
juror, the petitioner must show that the juror was actually biased
against him. See Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001).
Accordingly, none of Petitioner’s arguments establish ineffective
assistance of counsel, and the claim is denied.
b. Cruel and unusual punishment claim
Petitioner argues that his Eighth Amendment right to be free
from cruel and unusual punishments is violated by the length of his
sentence. (Dkt. 1 at 14-17.) The Michigan Court of Appeals rejected
Petitioner’s claim on the merits, finding that his sentence was not
disproportionate to the seriousness of his offense and taking into
account his age and criminal history. Mitchell, 2014 Mich. App. LEXIS
235, at *15-17; (see Dkt. 11-19 at 6).
proportionality between a crime and its punishment.
Michigan, 501 U.S. 957, 965 (1991); United States v. Marks, 209 F.3d
577, 583 (6th Cir. 2000). Only an extreme disparity between crime and
sentence violates the Eighth Amendment. Lockyer v. Andrade, 538 U.S.
63, 77 (2003) (gross disproportionality principle applies only in the
extraordinary case); Ewing v. California, 538 U.S. 11, 36 (2003)
(principle applies only in “the rare case in which a threshold comparison
of the crime committed and the sentence imposed leads to an inference
of gross disproportionality”) (quoting Rummel v. Estelle, 445 U.S. 263,
A sentence that falls within the maximum penalty authorized by
statute “generally does not constitute ‘cruel and unusual punishment.’”
Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (quoting United
States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). And “[f]ederal courts
will not engage in a proportionality analysis except in cases where the
penalty imposed is death or life in prison without possibility of parole.”
United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995).
Petitioner minimizes the harmfulness of his actions, implying that
his young victims were somehow partially responsible for his crimes.
But the record supports the Michigan Court of Appeals’ conclusion that
Petitioner “engaged in violent conduct to ensure that his victims would
comply with his demands.” Mitchell, 2014 Mich. App. LEXIS 235, at
*17. Petitioner’s thirty-five- to sixty-year sentence for his crimes does
not rise to the level of a cruel and unusual punishment.
Andrade, 538 U.S. at 77 (not unreasonable under AEDPA for state court
to find that two consecutive twenty-five years sentences, totaling fifty
years, based on stealing $200 of videotapes constitutional); Smith v.
Howerton, 509 F. App’x 476, 484 (6th Cir. 2012) (state court upholding
sixty years based on possession of small amount of drugs not
“unreasonable” under AEDPA, in part because of “vagueness of the
The Michigan Court of Appeals did not unreasonably apply the
law when it found that Petitioner’s sentence does not run afoul of the
Accordingly, Petitioner’s Eighth Amendment
claim is denied.
c. Due process claim
Petitioner argues that his due process right to fair notice was
violated when, on the first day of trial, the prosecutor successfully
moved to amend a heading in the criminal information to eliminate the
term kidnapping from the human trafficking charge. (Dkt. 1 at 18-20.)
The Michigan Court of Appeals rejected this claim on the merits:
On the first day of trial, the prosecutor noted that although
the information entitled offenses as human trafficking, the
actual statutory and jury instruction reference was to forced
labor involving CSC. Defense counsel did not object to the
change to the title of the offense, but noted that he was
prepared to defend against the CSC charge to the extent it
involved kidnapping, and did not want the reference to
The prosecutor noted that the
charging language at bind over contained no reference to
kidnapping. The trial court granted the motion to amend.
In light of the record, defendant waived appellate review of
this claim of error. [People v Vaughn, 491 Mich 642, 663;
821 NW2d 288 (2012)]. Nonetheless, the trial court did not
abuse its discretion by allowing the amendment of the
information. [People v Unger, 278 Mich App 210, 221; 749
NW2d 272 (2008)].
Defendant was charged in the
information with violating MCL 750.462i. The information
entitled the crime “human trafficking.” The prosecutor
merely amended the information to change the title of the
crime to forced labor involving CSC, the underlying
statutory charge continued to be MCL 750.462i.
amendment did not prejudice the defense because it did not
charge a new crime. [People v Siterlet, 299 Mich App 180,
186; 829 NW2d 285 (2012)]. This claim of error is without
Mitchell, 2014 Mich. App. LEXIS 235, at *22-23; (see Dkt. 11-19 at 8-9).
Setting aside the state court’s conclusion that the claim was
waived, the amendment to the information nevertheless does not
present a basis for granting habeas relief.
Under the Sixth
Amendment, a criminal defendant has the right to be informed of the
nature of the accusations against him. Cole v. Arkansas, 333 U.S. 196,
201 (1948); In re Oliver, 333 U.S. 257, 273 (1948); Lucas v. O’Dea, 179
F.3d 412, 417 (6th Cir. 1999). As applied to the states under the “due
process clause of the Fourteenth Amendment[,] . . . whatever charging
method the state employs must give the criminal defendant fair notice
of the charges against him to permit adequate preparation of his
defense.” Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988).
An indictment “which fairly but imperfectly informs the accused of
the offense for which he is to be tried does not give rise to a
constitutional issue cognizable in habeas proceedings.”
Marshall, 806 F.2d 636, 639 (6th Cir. 1986). To show that the alleged
defect in the information requires habeas relief, Petitioner must
establish that: (1) he did not receive adequate notice of the charges;
and (2) he was therefore denied the opportunity to defend himself
against the charges. Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002).
Here, Counts I and II of the information were labeled “Human
Trafficking.” (Dkt. 11-12 at 6-7.) The language of the charge itself,
however, did not contain any mention of kidnapping or human
trafficking. (Id. at 7.)
The victims’ testimony at the preliminary hearing before the
criminal information was filed gave Petitioner a detailed account of the
allegations made against him, including the allegation that he
committed acts of forced labor involving sexual conduct. (See, e.g., Dkt.
11-3 at 33-36.)
And the late amendment merely deleted language
appearing in the titles of the first two counts. The substance of the
criminal information did not change.
The Michigan Court of Appeals was not unreasonable in finding
that the amendment of the criminal information did not deny Petitioner
his right to fair notice of the charges against him. Thus, Petitioner was
not deprived of an opportunity to defend himself at trial. Accordingly,
Petitioner’s Eighth Amendment claim is denied.
d. Jury instruction claim
Petitioner argues that the trial court instructed the jury on the
wrong version of first-degree criminal sexual conduct by failing to
instruct the jury on the requirement that the victim be between
thirteen and sixteen years of age and that the victim suffered personal
injury. (Dkt. 1 at 21-24.)
After finding that Petitioner waived any error at trial by agreeing
to the jury instructions, the Michigan Court of Appeals nevertheless
found the claim to be without merit:
Although he claims he could only be convicted of thirddegree CSC because of the age of the victims and that he
was entitled to instructions regarding consent and physical
injury, that is not the case. As previously noted, MCL
750.520b(1)(b)(iii) provides that a person is guilty of first23
degree CSC when the victim is between 13 and 16 years of
age and the actor is in a position of authority over the victim
and uses that authority to coerce the victim to submit. An
underage victim is incapable of consenting, irrespective of
the testimony from the victims, People v Starks, 473 Mich
227, 235; 701 NW2d 136 (2005), and a victim need not resist
when a defendant is charged under MCL 750.520b, see MCL
750.520i. Defendant failed to demonstrate entitlement to
appellate relief. MCL 768.29.
Mitchell, 2014 Mich. App. LEXIS 235, at *32; (see Dkt. 11-19 at 12).
To demonstrate entitlement to relief on a claim that a trial court
gave an improper jury instruction, a habeas petitioner must show that
the erroneous instruction “so infected the entire trial that the resulting
conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 155
(1977). Moreover, “a state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.” Stumpf v. Robinson, 722 F.3d
739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw v. Richey, 546 U.S. 74,
Here, the Michigan Court of Appeals did just that—it found that
the trial court properly instructed the jury on the elements of the
This Court cannot second-guess the state court’s
determination of state law, and thus Petitioner cannot demonstrate
entitlement to relief based on this claim. Accordingly, Petitioner’s claim
for relief based on improper jury instructions is denied.
e. Prosecutorial misconduct claim
Petitioner argues that the prosecutor improperly denigrated
Petitioner’s character, vouched for the credibility of its witnesses, and
improperly used evidence of prior bad acts. (Dkt. 1 at 25-28.)
The United States Supreme Court has made clear that
prosecutors must “refrain from improper methods calculated to produce
a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935).
To prevail on a claim of prosecutorial misconduct, Petitioner must
demonstrate that the prosecutor’s conduct or remarks “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly);
Parker v. Matthews, __ U.S. __, 132 S. Ct. 2148, 2153 (2012) (confirming
that Donnelly and Darden are the proper standard).
After finding that Petitioner’s allegations were not preserved by a
contemporaneous objection, the Michigan Court of Appeals rejected
Petitioner’s prosecutorial misconduct claim on the merits:
Unpreserved claims of prosecutorial misconduct are
reviewed for plain error affecting substantial rights. People
v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003).
“Reversal is warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of
judicial proceedings, independent of defendant’s innocence.”
Id. at 448-449. Where a curative instruction would have
alleviated the prejudicial effect of any prosecutorial
questioning or comment, error requiring reversal has not
Id. at 449.
When determining whether
prosecutorial misconduct deprived a defendant of a fair and
impartial trial, the defendant bears the burden of
demonstrating that the conduct resulted in a miscarriage of
justice. People v Brown, 279 Mich App 116, 134; 755 NW2d
664 (2008). “A prosecutor may fairly respond to an issue
raised by the defendant.” Id. at 135. “Prosecutors have
discretion on how to argue the facts and reasonable
inferences arising therefrom, and are not limited to
presenting their arguments in the blandest terms possible.”
People v Meissner, 294 Mich App 438, 456; 812 NW2d 37
(2011). Despite this discretion, it is nonetheless improper for
the prosecutor to appeal to the jury to sympathize with the
Although defendant raised general claims of prosecutorial
misconduct, he failed to cite to the lower court record and
address whether the claims were preserved for appellate
review. Following a review of the record, we conclude that
defendant failed to demonstrate plain error affecting
substantial rights. Ackerman, 257 Mich App at 448. The
record does not support the contention that the prosecutor
improperly referenced defendant in derogatory terms or
improperly vouched for the credibility of her witnesses.
Rather, the prosecutor argued that the nature of the charges
and the corroboration in the testimony by the victims,
despite being employed by defendant at different times,
demonstrated that their testimony was credible. Similarly,
there is no indication in the record that the prosecutor
attempted to convict defendant based on character evidence.
Defendant’s contention that the prosecutor improperly
admitted evidence of other bad acts offered by the victims is
also without merit.
The jury is entitled to hear the
“complete story” surrounding the matter in issue. People v
Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996). Evidence of
other criminal events may be admissible when so blended or
connected to the other crime that proof of one explains the
circumstances of the other. Id. The more jurors know about
the full transaction, the better equipped at performing their
sworn duty. Id. The testimony regarding defendant’s
assaults on others was not improper MRE 404(b) evidence,
but explained how defendant obtained compliance from his
victims and his management of his victims. Sholl, 453 Mich
at 742. The prosecutor did not improperly admit defendant’s
prior convictions before the jury. Rather, to avoid an inquiry
into defendant’s criminal history, the parties stipulated that
defendant was not eligible to carry a firearm. A party
cannot agree to specific action in the trial court and submit,
on appeal, that the action was erroneous. People v McCray,
210 Mich App 9, 14; 533 NW2d 359 (1995). Finally, there is
no requirement that the testimony of a criminal sexual
conduct victim be corroborated for purposes of MCL
750.520b. MCL 750.520h. This claim of error does not
entitle defendant to appellate relief.
Mitchell, 2014 Mich. App. LEXIS 235, at *18-21; (see Dkt. 11-19 at 7-8).
Here, Petitioner does no more than disagree with the state court’s
conclusions. “[T]he Supreme Court has clearly indicated that the state
courts have substantial breathing room when considering prosecutorial
misconduct claims because constitutional line drawing in prosecutorial
misconduct cases is necessarily imprecise.” Slagle v. Bagley, 457 F.3d
501, 516 (6th Cir. 2006) (internal quotation marks and alterations
omitted). Because “the Darden standard is a very general one,” courts
have “more leeway . . . in reaching outcomes in case-by-case
determinations.” Parker, 132 S. Ct. at 2155 (internal quotation marks
Petitioner does not point to any part of the record refuting the
state court’s characterization of what occurred at trial. Considering the
state court analysis of Petitioner’s prosecutorial misconduct claims,
Petitioner fails to establish that the state court determination rejecting
his prosecutorial misconduct claims was contrary to, or an unreasonable
application of, clearly established law as set forth by the Supreme
Court. Accordingly, Petitioner is not entitled to habeas relief based on
his prosecutorial misconduct claims.
f. Restitution claim
Petitioner argues that he was improperly ordered to pay
restitution, because the jury acquitted him of the charges of forced labor
involving criminal sexual conduct and pandering with respect to
complainant D. J. (Dkt. 1 at 28-29.)
Federal habeas relief cannot be granted on this ground. A federal
court may entertain a habeas application from a state prisoner “only on
the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Because an order
of restitution has no bearing on the validity or duration of a petitioner’s
custody, a challenge to an order of restitution is not cognizable under
§ 2254. See United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995); see
also United States v. Mays, 67 F. App’x 868, 869 (6th Cir. 2003) (district
court lacked subject matter jurisdiction over defendant’s § 2255 postjudgment motion to reduce or rescind fine levied in criminal judgment;
defendant was not in custody, as required in a motion to vacate
sentence or a petition for a writ of habeas corpus). Accordingly,
Petitioner’s claim for habeas relief based on the order of restitution is
g. Double jeopardy claim
Petitioner argues that his rights under the Double Jeopardy
Clause were violated when he was convicted of multiple criminal sexual
conduct offenses arising out of a single act.
asserts that for a single sexual penetration he was convicted of two
versions of first-degree criminal sexual conduct, one requiring personal
injury and the other requiring that he was in a position of authority
over the victim. (Dkt. 1 at 30-31.)
The Michigan Court of Appeals found that Petitioner abandoned
the claim during his direct appeal because his pro se supplemental brief
gave only cursory treatment to the issue. Mitchell, 2014 Mich. App.
LEXIS 235, at *29-30. The state court also found that the claim ignored
the fact that the victims testified to multiple acts of penetration,
contrary to Petitioner’s allegations. Id.; (see Dkt. 11-19 at 11).
Petitioner was convicted of two counts of first-degree criminal
sexual conduct with respect to victim D. J. One conviction (Count 3)
was under MICH. COMP. LAWS § 750.520b(1)(f) (force or coercion used to
accomplish sexual penetration causing personal injury), and the other
(Count 5) was under § 750.520(1)(b) (victim between thirteen and
sixteen years of age and actor is in position of authority over victim).
Count 3 related to an incident in which D. J. testified that Petitioner
choked her during a forcible sexual penetration. (See Dkt. 11-15 at 67.)
Count 5 related to other incidents in which D. J., who was between
thirteen and sixteen years of age, testified that she had sexual
intercourse with Petitioner while she worked for him as a prostitute.
(See id. at 73-74.)
Petitioner’s claim is thus based on an incorrect
reading of the record.
Petitioner was not convicted of two counts of first-degree criminal
sexual conduct for a single act. Accordingly, the claim for habeas relief
based on double jeopardy is denied.
h. Sufficiency of the evidence claim
Petitioner argues that insufficient evidence was presented by the
prosecution to sustain his criminal sexual conduct convictions. (Dkt. 1
He asserts that his first-degree criminal sexual conduct
convictions were not supported by sufficient evidence because the
prosecutor did not prove that Petitioner was in a position of authority
over the victims or that he caused them personal injury. (Id. at 10-12.)
He also argues that the only evidence offered in support of the charges
was the testimony of “admitted prostitutes.” (Id. at 12-13.)
As with the other claims raised in Petitioner’s pro se supplemental
brief, the Michigan Court of Appeals found that Petitioner abandoned
the claim by failing to adequately brief it. Mitchell, 2014 Mich. App.
LEXIS 235, at *26.
The state court also found that Petitioner’s
convictions were nevertheless “premised on the jury’s evaluation of the
credibility of the witnesses.” Id.; (see Dkt. 11-19 at 10).
A “daunting, doubly deferential standard of review” applies to a
sufficiency-of-the-evidence claim under AEDPA.
Keys v. Booker, 798
F.3d 442, 450 (6th Cir. 2015). First, a reviewing court “must determine
whether, viewing the trial testimony and exhibits 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.” Brown
v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Second, even if the reviewing court concludes
that a rational trier of fact could not have found the petitioner guilty
beyond a reasonable doubt, it “must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Id.
Here, Petitioner’s argument amounts to an attack on the
credibility of the witnesses, who Petitioner claims were motivated to
falsely accuse him of the charged crimes.
federal habeas review.
Such claims must fail on
“A reviewing court does not reweigh the
evidence or redetermine the credibility of the witnesses whose
demeanor has been observed by the trial court.”
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). “A reviewing court ‘faced with a
record of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution.’” McDaniel v. Brown, 558 U.S. 120,
132 (2010) (quoting Jackson, 443 U.S. at 326).
The witnesses who testified against Petitioner at trial provided
sufficient evidence to convict Petitioner, if their testimony is taken as
true. On habeas review, that is what this Court must do. And under
the even higher burden of AEDPA, which governs this Court’s review,
the Michigan Court of Appeals was not unreasonable for so finding.
Accordingly, Petitioner is not entitled to habeas relief with respect to
this claim and the claim is denied.
i. State sentencing guidelines claim
Petitioner argues that the trial court incorrectly scored the
sentencing guideline’s offense variables. (Dkts. 1 at 15-17, 1-2 at 4.)
State courts are the final arbiters of state law. See Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860
(6th Cir. 2002).
Petitioner must show that the sentence imposed
exceeded the statutory limits or is wholly unauthorized by law in order
to succeed on such a claim. See Vliet v. Renico, 193 F. Supp. 2d 1010,
1014 (E.D. Mich. 2002). A sentence imposed within the statutory limits
is generally not subject to habeas review. Townsend v. Burke, 334 U.S.
736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich.
Petitioner fails to show how his offense level was improperly
scored. Rather, as found by the Michigan Court of Appeals, “there is no
indication that a change in the scoring would alter the guidelines
Mitchell, 2014 Mich. App. LEXIS 235, at *36.
Petitioner does not establish that the Michigan Court of Appeals
decision was unreasonable. Accordingly, Petitioner’s claim for habeas
relief based on incorrect sentencing guidelines scoring is denied.
For the reasons set forth above, the petition for a writ of habeas
corpus (Dkt. 1) is DENIED WITH PREJUDICE.
The Court also denies a certificate of appealability. In order to
obtain a certificate of appealability, Petitioner must make “a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
Under this standard, a petitioner must
demonstrate that “reasonable jurists could debate whether (or, for that
matter, 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 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). Petitioner fails to make a substantial showing of the
denial of a federal constitutional right. Reasonable jurists would not
find the Court’s assessment of Petitioner’s constitutional claims
debatable or wrong.
Finally, the Court denies leave to proceed in forma pauperis on
appeal. A court may grant in forma pauperis status if the court finds
that an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Because an appeal
could not be taken in good faith here, Petitioner may not proceed in
forma pauperis if he wishes to appeal this decision. Id.
IT IS SO ORDERED.
Dated: December 20, 2016
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 December 20, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
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