Loriaux v. Trierweiler
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
David Allan Loriaux,
Case No. 15-cv-13788
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA
Michigan prisoner David Allan Loriaux (“Petitioner”) filed this
habeas case under 28 U.S.C. § 2254. Petitioner was convicted after a
jury trial in the Wayne County Circuit Court of three counts of firstdegree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(a),
and two counts of second-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520c(1)(a). Petitioner was sentenced to concurrent terms of
twenty-five to fifty years imprisonment for the first-degree convictions
and five years and eleven months to fifteen years imprisonment for the
second-degree convictions. The petition raises two claims: (1) petitioner
was denied the effective assistance of counsel where his trial attorney
failed to present evidence that the child victim was previously sexually
assaulted by her uncle in order to explain her age-inappropriate
knowledge of sex acts, and (2) petitioner was denied the effective
assistance of counsel where his trial attorney failed to adequately
challenge the credibility of the victim through expert witness testimony.
Petitioner’s claims are without merit, and the petition will be denied.
The Court will also deny petitioner a certificate of appealability and
permission to appeal in forma pauperis.
The charges against petitioner stemmed from allegations that he
sexually assaulted his step-daughter, who was eight or nine years old
when the assaults occurred and ten years old at the time of trial. The
matter came to light after the victim returned from visiting her
grandmother in Tennessee. Petitioner spent a few hundred dollars on
the victim’s transportation costs for that trip. The victim’s mother found
a letter in petitioner’s pants pocket asking the victim to perform sex
acts in appreciation for sending her on the trip. The letter read as
You know with all the money I spent on you in the past three
weeks and how much I have done for you it cost over three
hundred dollars just to bring you back.
I ask for one favor and you have made me wait for almost
three weeks now for something you promised to give me that
And then all the extra money I spent on you after that. And
you say you love me. With everything I done for you[,] you
should be begging me to let you stuck (sic) [suck] my dick.
Everyday you should be looking for the opportunity to show
me how much you love me. (suck suck). It has really pissed
me off after all I’ve done for you and your mom.
The least you can do is suck my dick without me having to
ask you 50 times or acting like you don’t like it because I
know you do.
So stop fucking around and do it already. You need to tell my
dick how sorry you are that you have made him wait so long.
(Dkt. 6-6 at 176.)
At trial, the victim, herein referred to by her initials EO, testified
that she used to live in a trailer with her mother, her baby brother, and
petitioner. (Id. at 98-104.) Sometimes when her mother was at work
petitioner would watch her and her brother. (Id. at 105.)
EO testified that the assaults began when she was about eight
years old. (Id. at 105-06.) On one occasion, petitioner took EO into her
bedroom closet and told her that he wanted her to “suck his dick.” (Id.
at 106.) She complied with petitioner’s demand, after which something
white came out of his penis. (Id. at 107-110.) Petitioner wiped the door,
but he didn’t clean the carpet. (Id. at 110.)
EO described other incidents and locations where she was forced
to perform oral sex on petitioner. (Id. at 110-114.) EO also testified that
petitioner would do something he described as “boo be doo” where he
would rub his penis between her breasts. (Id. at 114-16.)
EO testified that she once visited her grandmother in Tennessee.
(Id. at 118-120.) When she returned home, petitioner gave her the letter
to read. (Id. at 119.)
On cross-examination at trial, EO could not remember whether
petitioner did inappropriate things to her when they previously lived in
an apartment. (Id. at 124.) EO also gave inconsistent answers about
whether petitioner did anything to her on the day her mother found the
letter. (Id. at 125-129.) EO admitted that she could remember some
incidents well, but she could not remember the details of others because
her mind did not want to remember some things. (Id. at 131.) EO was
unable to give specific dates or times she performed oral sex on
petitioner in her bed because it happened a lot. (Id. at 141.)
EO’s mother, Maria Loriaux, testified that she was with petitioner
for about five years. (Id. at 155.) She testified that petitioner and EO
interacted as a father and daughter. (Id. at 156.) EO and petitioner got
along well. (Id.)
Ms. Loriaux testified that she found the letter in petitioner’s pants
pocket when she was doing the laundry. (Id. at 157.) Ms. Loriaux
confronted petitioner with the letter. (Id. at 161.) Petitioner said he
never touched EO, but he admitted to Ms. Loriaux that he had thoughts
about it and so he wrote them down. (Id. at 161-62.) Ms. Loriaux
testified that petitioner had spent several hundred dollars to send EO
down to Tennessee and back shortly before she found the letter. (Id. at
After confronting petitioner, Ms. Loriaux asked EO if he had ever
touched her, and EO started crying and said that he had. (Id. at 162.)
EO told Ms. Loriaux about the oral sex, and something called “boo be
doo.” (Id. at 169.) Ms. Loriaux spoke with petitioner’s family members
and then contacted the police. (Id. at 162-63.)
Some time after the police were involved, EO told Ms. Loriaux
about the incident in her bedroom closet, after which Ms. Loriaux
informed officers, who came and removed some of the carpeting from
the closet. (Id. at 169-70.) Ms. Loriaux received a letter written by
petitioner after his arrest asking for God’s forgiveness and stating that
he needed help. (Dkt. 6-7 at 24-25.)
A police officer testified about speaking with Ms. Loriaux and
ascertaining the location in the closet where one of the incidents
occurred. (Dkt. 6-6 at 189-190.) An officer subsequently cut out a part of
the carpeting from the closet in EO’s bedroom. (Id.) The police also
obtained a DNA sample from petitioner. (Dkt. 6-7 at 4-5.)
The lead investigating officer testified that EO was taken to “Kids
Talk,” where she was interviewed by a forensic scientist. (Dkt. 6-6 at
178-79.) The officer and a protective services worker watched the
interview from another room. (Id.) Neither the officer nor anyone else
testified as to what EO said during the interview.
A forensic scientist with the Michigan State Police Crime Lab
testified that sperm cells were found on the carpet sample, and that
DNA analysis matched the cells with petitioner’s known sample. (Dkt.
6-7 at 12-17.)
Petitioner testified in his own defense. He admitted that he wrote
the letter that Ms. Loriaux found, (id. at 54, 63), and he admitted that
he was the source of the semen found in the victim’s closet. (Id. at 68.)
Petitioner explained that on the day Ms. Loriaux confronted him
with the letter, he arrived home from work and looked for the letter but
could not find it. (Id. at 54-55.) Ms. Loriaux was not home, and he
thought she was at a store. (Id.) Petitioner took a shower and then
caught EO watching a pornographic video, and EO told him, “Look,
Dad, boo be doo.” (Id. at 55.) He told her that she should not watch stuff
like that, and he removed the DVD from the television. (Id. at 55-56.)
Petitioner then became nervous, and he suspected that Ms. Loriaux
found the letter. (Id. at 58.)
When Ms. Loriaux came home she confronted him with the letter,
and she starting yelling, screaming, kicking, and smacking him. (Id. at
61-62.) Ms. Loriaux left the trailer, and the police subsequently arrived.
(Id. at 63.)
Petitioner explained at trial why he wrote the letter:
It was something that had happened I believe it was
Saturday morning this all happened on a Monday night I
woke up that morning from because I had been having
disturbing dreams for three and a half to four years. . . . But
I had had a very disturbing dream and I had woke up that
morning and realized what time it was and saw that my son
was going to be up in a minute wanting his first bottle of the
I got up and was thinking about this dream and it’s not the
first time I’ve had disturbing dreams. I turned the baby
monitor off went out into the living room and started making
Rowan a bottle heard him wrestling and starting to crying I
get the bottle grab him, feed him, after he had his bottle he
gets sleepy eyes so I laid him back down.
So I laid him back down and I am thinking about these
damn dreams. And it’s a very disturbing the things that
were involved in the dreams.
So like before I had these dreams I remember that I had
marijuana out in the car. I went out to the car and decided to
self-medicate I smoked a half joint behind the shed and it
took care of the dreams I was thinking about the dreams
that come up and it was okay for a minute but after that it
was like something was in the weed never been so stoned
before in my life and I’ve smoked weed before back in the
day so but it wasn’t normal.
And I went back into the house these thoughts about the
dreams started to come back. I couldn’t really control it.
Um I found myself writing in a notebook, um, vile despicable
things you heard them and you knew that.
I needed to get them out of my head like I said like the pages
of a little girl’s diary not meant to be read it’s more like
therapeutic thing get it out of my head on get it on paper and
be done with it well, hopefully.
(Id. at 63-65.)
With respect to the seminal fluid found in the closet, petitioner
testified that he did not have an independent recollection of
masturbating in EO’s closet, but he remembered exiting the closet with
semen on his hand. (Id. at 68.) Petitioner explained:
Honestly, um it was suggested that I had been having like
sleep withdrawals or sleep deprivation and I was having
black outs yeah that why I called my wife before I come home
from work because I wouldn’t remember how I got home.
Almost every day but I don’t remember going into the closet. I
only remember slow it down for you double darkness like
nothing and then a big bright light and me stumbling out of
that closet taking a step or two and stumbling over something
else what I believe to be [EO] playing on the floor brushed her
with my hand and stumbled again and turned around and she
was there and she said something got on my shirt.
And I was like what got on your shirt change your shirt. So
after that I kind of tried to piece together maybe what
Because I looked at my hand and I had slimy stuff looked like
semen and I went to the bathroom and went to the living
room and saw my wife sleeping on the couch.
It was probably still morning time. I don’t know what was
going on but I figured like [EO] caught me masturbating in
her closet. I don’t know how I got there though.
So I grabbed some baby wipes and I went back into her room
and she’s just there playing like nothing happened and I’m
like okay well she’s not saying anything she’s not looking at
me weird or anything maybe she didn’t see anything.
Anyway I go back to the closet and I notice something on the
wall and the door and I take the baby wipes and wipe it off.
Um, also notice there was little bit on the carpet too and I
wiped it off the carpet. If anything figuring that I don’t know
what just really happened.
You figure if I was if you know I was guilty of something
horrific I would have went to the store and something because
it happened a long time and brought a bottle of color safe
bleach and put it on it.
But I didn’t because I didn’t figure anything happened and
[EO] didn’t say anything about what had happened so.
(Id. at 66-68.)
On cross-examination, petitioner was asked what “boo be doo”
means, and he replied that it is “a sexual act in which a man places his
penis in between the breast of a woman. . . .” (Id. at 76-77.) Petitioner
admitted that the first part of his letter indeed referred to the cost of
sending EO to Tennessee and back. (Id. at 77.)
Petitioner testified that he once thought of destroying the letter by
burning it in the parking lot at work, but he didn’t want to get into
trouble for starting fires. (Id. at 81-82.) Petitioner explained that he
never gave the letter to EO, but she must have read it when he gave her
the notebook in which it was written after she asked for some paper.
(Id. at 82.)
Following arguments and instructions, the jury found petitioner
guilty of the charged offenses.
Following sentencing, petitioner’s appellate counsel filed a motion
for new trial, asserting his claims of ineffective assistance of counsel.
The trial court denied the motion in a written opinion. (Dkt. 1 at 66-69.)
Petitioner then filed a brief on appeal, raising the following
I. The trial court erred in denying defendant’s motion for
new trial where the testimony against him was weak, the
People’s key witness was impeached, and the case against
Mr. Loriaux was marked by un[c]ertanties and
II. Defense trial counsel was ineffective within the meaning
of the Sixth Amendment to the United States Constitution
by failing to have the contentions of [E.O.] regarding
criminal sexual conduct on defendant’s part properly
evaluated for credibility, accuracy and reliability, and the
trial court erred in failing to grant a new trial on this
III. Defense trial counsel was ineffective within the meaning
of the Sixth Amendment to the United States Constitution
by failing to contest the prosecution’s motion in limine to
exclude evidence relating to the prior abuse of the child
complainant; failing to investigate the prior abuse of the
child victim by her uncle; failing to engage in discovery
regarding the prior abuse; and failing to request and conduct
an in camera evidentiary hearing having as its objective a
determination of relevancy of the evidence pertaining to the
prior molestation, so as to enable it to be used in defense of
The Michigan Court of Appeals rejected petitioner’s claims in an
unpublished opinion. People v. Loriaux, Dkt. No. 312402, 2014 WL
1510100. Petitioner subsequently filed an application for leave to appeal
in the Michigan Supreme Court, raising the same claims. The Michigan
Supreme Court denied the application because it was not persuaded
that the questions presented should be reviewed by the court. People v.
Loriaux, 497 Mich. 889 (2014) (table).
Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of
constitutional claims raised by a state prisoner in a habeas action if the
claims were adjudicated on the merits by the state courts. Relief is
barred under this section unless the state court adjudication was
“contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court cases]’ or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a
federal habeas court to ‘grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S.
at 413. “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); see also Woods v. Etherton, No. 15-723, 2016 WL 1278478, at *3
(U.S. Apr. 4, 2016) (habeas relief precluded if state court decision is “not
beyond the realm of possibility [from what] a fairminded jurist could
“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. . . . As a
condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Both of petitioner’s claims challenge the effectiveness of his trial
counsel. His first claim asserts that his attorney should have challenged
the prosecutor’s motion to suppress evidence of a prior sexual assault
committed against EO by her uncle. Petitioner argues that evidence of
the victim’s prior sexual assault was critical to the defense because it
provided an explanation for her age-inappropriate knowledge of sex
acts. Petitioner’s second claim asserts his attorney was ineffective for
failing to call an expert witness to challenge the credibility of the
To establish a claim of ineffective assistance of counsel, Petitioner
must show that “counsel’s performance was deficient,” and the
“deficient performance prejudiced the defense.” See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The “deficient performance”
prong of the Strickland test “requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984).
“Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. “[A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
To determine whether Petitioner was prejudiced, the reviewing
court must decide, based on the totality of the evidence before the factfinder, whether there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“This does not require a showing that counsel’s actions ‘more likely than
not altered the outcome,’” but “[t]he likelihood of a different result must
be substantial, not just conceivable.” Harrington, 562 U.S. at 86
(quoting Strickland, 466 U.S. at 693).
A. Failure to Present Evidence of Prior Assault
The Court will first address petitioner’s claim that his trial
attorney was ineffective for failing to present testimony that the victim
was previously sexually assaulted by her uncle to show the source of
age-inappropriate knowledge of sex acts.
The Michigan Court of Appeals rejected the claim on the merits as
Defendant appears to contend that his counsel improperly
interpreted the rape-shield statute, MCL 750.520j, to
preclude evidence related to the prior sexual abuse of the
child-victim in this case. Defendant claims that the rapeshield statute did not prohibit this evidence; rather, it was
admissible to refute the inference that the child’s apparently
age-inappropriate sexual knowledge was acquired from
defendant’s alleged sexual conduct. Defendant appears to be
correct that there are circumstances under which the prior
sexual abuse of a child-witness may be admissible to rebut
such an inference. See People v. Morse, 231 Mich. App. 424,
433–435; 586 N.W.2d 555 (1998), citing People v. Hill, 289
Ill. App. 3d 859, 862–865; 683 N.E.2d 188 (1997). In this
case, the child’s allegedly “age-inappropriate sexual
knowledge” consisted primarily of her testimony that
defendant forced her to “suck his dick” and her reference to
defendant rubbing his penis between her breasts as the “boo
be doo.” However, in the letter that defendant wrote to the
child, he repeatedly referred to his penis as “dick,” and
repeatedly stated that she should “suck” his “dick.” Further,
when defendant was questioned as to what the unique
phrase “boo be doo” meant, he readily explained its meaning
which was consistent with the child’s testimony.
Consequently, any such prior sexual abuse by the child’s
uncle would not tend to explain the child’s “age
inappropriate sexual knowledge” or refute the inference that
the child’s knowledge was acquired from defendant’s sexual
conduct. Thus, defendant has neither established a relevant
basis for the admission of evidence related to the prior
sexual assault, nor that he was deprived of a substantial
defense because of his attorney’s failure to further
investigate the prior abuse.
Further, an attorney’s decisions regarding what evidence to
present, what questions to ask witnesses, and whether to
make an objection are presumed to be matters of sound trial
strategy. People v. Unger, 278 Mich. App. 210, 242; 749
N.W.2d 272 (2008); Davis, 250 Mich.App. at 368. In this
case, defendant has not overcome the presumption. It is
likely defendant’s attorney decided not to raise the issue of
the prior sexual abuse committed against this child because
it might tend to show that defendant was an opportunistic
child predator who believed that this previously abused
child-victim would not be believed or would be considered
confused with regard to his sexually assaultive behavior.
Defendant’s attorney may have also believed that the
admission of such evidence would have made the child
appear to be more vulnerable or a more credible witness and
defendant to be more heartless. Consequently, defendant
failed to establish his ineffective assistance of counsel claim.
Moreover, considering all of the evidence in this case,
including but not limited to the seminal fluid matching
defendant’s DNA on the carpet in the child’s closet where the
child testified she was forced to “suck his dick” until “white
stuff” came out of it, as well as the letter that defendant
wrote to the child which repeatedly referenced her “sucking
his dick” and defendant’s own testimony, defendant did not
establish that any error related to evidence of the child’s
prior sexual abuse constituted plain error warranting
appellate relief. See Carines, 460 Mich. at 763–764, 774.
Loriaux, 2014 WL 1510100, at *4.
Even assuming Michigan’s rape shield law would have allowed for
presentation of evidence of the prior sexual assault, the state court’s
conclusion that petitioner did not suffer prejudice was reasonable. At
trial, though petitioner testified that he did not intend for her to read it,
petitioner acknowledged that EO read his letter, which referred to the
term for fellatio EO used at trial. Petitioner also testified at trial that
he caught EO watching a pornographic video, and he heard her use the
unusual phrase “boo be doo.” That is, petitioner’s defense—as provided
by his own trial testimony—was that EO acquired age-inappropriate
sexual knowledge by reading his letter and watching pornography.
But even setting that aside, petitioner cannot demonstrate a
reasonable probability that the result of his trial would have been more
favorable if the prior assault evidence had been admitted. The evidence
of petitioner’s guilt was overwhelming, and his own testimony could
easily have been disbelieved by the jury.
After the investigation was underway, EO recalled a particular
sexual assault occurring in her bedroom closet, and she remembered
that “white stuff” came out of petitioner and went onto the carpet.
Subsequent forensic analysis corroborated the account when sperm cells
matching Petitioner’s DNA profile were found on a carpet sample.
unconsciously found his way into EO’s closet where he also
unconsciously masturbated, and when he regained awareness, he saw
that EO was playing on the floor and semen was on her clothes.
And then there is petitioner’s letter. Petitioner admitted that the
money referred to in the letter related to the expense of sending EO to
visit her grandmother. Thus, the demands and complaints about
receiving oral sex as an expression of gratitude also referred to EO. The
sex act referred to in the letter also corresponded to the sex act EO
testified that she repeatedly performed on petitioner. Petitioner’s
response: he wrote the letter in a marijuana induced haze to rid himself
of vile thoughts after having disturbing dreams.
Finally, there is the use of the unique term “boo be doo” by EO.
The prosecutor best explained the term’s impact on its case in closing
Well what does [EO] say he did? First she says he did the
boo be doo with me. She described it. She had to lay down on
the floor and he put his penis between her breast and rubbed
I asked him what does the boo be doo do? He knew exactly
right away what it was and he described it for you this
Now it’s really no wonder he’s as an adult knows what this is
but how does the child age nine know what the boo be doo is?
And how does she know that what it is consistent with what
he says it is? Because he taught her that. He did that to her.
(Dkt. 6-7 at 90-91.)
Simply put, the case against petitioner was strong, and
incriminating evidence made it stronger. This was not a case of wordagainst-word as petitioner asserts. The victim’s testimony that she
performed oral sex on petitioner and that he rubbed his penis between
her breasts was corroborated by the DNA evidence, the letter petitioner
admitted he wrote, and the victim’s use of a unique term for a sex act
that petitioner used. The inclusion of evidence that EO was previously
sexually assaulted by her uncle would not have resulted in, with
reasonable probability, a more favorable result. The claim is without
B. Failure to Present Expert Testimony
Petitioner’s second claim of ineffective assistance of counsel
asserts that his counsel failed to offer expert testimony to undermine
the credibility of the victim. In support of this claim, Petitioner offers
the affidavit of Dr. Daniel Swerdlow-Freed, a clinical and forensic
psychologist. (Dkt. 1-1 at 48.)
In pertinent part, Swerdlow-Freed opines in his affidavit that the
conversations between EO and adults following her initial allegations
had the potential to taint her later accounts. Swerdlow-Freed detected
inconsistencies and contradictions in EO’s preliminary examination and
trial testimony which he claims calls into question the reliability and
accuracy of her story. He also states he would have been able to verify
recommended protocol to avoid aversely influencing EO. Finally,
Swerdlow-Freed states he could have provided testimony that leading,
suggestive, or coercive questioning can lead to fabrications or
inaccuracies in a child’s account of sexual abuse. (Id. at 48-58.)
The Michigan Court of Appeals denied the claim on the merits as
In support of his ineffective assistance of counsel claim
premised on his attorney’s failure to retain a qualified expert
to investigate the child-victim’s allegations and offer
testimony in that regard, defendant refers to the
“uncertainties, contradictions and conflicts” of the child’s
allegations and trial testimony. We disagree with
defendant’s characterizations of the child’s allegations and
testimony. She was a 10–year–old victim-witness attempting
to testify in a public courtroom about a very difficult and
embarrassing subject matter, i.e., being forced to suck her
stepfather’s penis on an almost daily basis, as well as other
sexual assaults perpetrated against her. That she could not
recall the exact days each assault occurred over the course of
at least two years, what defendant or she were wearing
during each assault, and the specific location of each
separate assault does not constitute the type of
“uncertainties, contradictions and conflicts” that warrant
serious concerns about her credibility. In any case, the
child’s testimony was not the only evidence in this case. The
evidence also included defendant’s seminal fluid on the
carpet in the closet where the child said she was made to
suck defendant’s penis, the letter defendant wrote to the
child—which she testified defendant gave her to read—as
discussed above, the letter defendant wrote to his wife
admitting that he needed professional help, and the letter
that he wrote to his parents saying that he was praying for
the opportunity to tell the child he was sorry. Further,
defendant has not demonstrated that he was deprived a
substantial defense by his counsel’s failure to retain and
present expert witness testimony. However, we agree with
the trial court that, even if the failure to retain a qualified
expert was not sound trial strategy, defendant has failed to
establish that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have
been different and the resultant proceedings were
fundamentally unfair or unreliable. See Brown, 294 Mich.
App. at 387–388. Thus, the trial court did not abuse its
discretion when it denied defendant's motion for a new trial
premised on this claim.
Loriaux, 2014 WL 1510100, at *3.
The conclusion by the state court that petitioner failed to establish
a reasonable probability that the result of the trial would have been
more favorable but for defense counsel’s failure to call an expert witness
did not involve an unreasonable application of the Strickland prejudice
“It is well known in the literature . . . that the credibility of the
child witness is often central to the success of child sex abuse
prosecutions and that the circumstances surrounding the initial
accusation of the abuse are important indicia of credibility.” Vasquez v.
Bradshaw, 345 F. App’x 104, 118 (6th Cir. 2009). Thus, petitioner’s
“claim that his attorney failed to identify key evidence and failed to
locate and interview critical witnesses is within the known contours of
the duty” to conduct a reasonable pre-trial investigation. Id. at 115
(citing Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) (duty to
investigate “includes the obligation to investigate all witnesses who
may have information concerning his or her client’s guilt or innocence”).
“The circumstances ordinarily surrounding an accusation of child sexual
abuse underscore this concern for developing impeachment evidence.”
Id. Indeed, this Court has granted habeas relief on account of a defense
attorney’s failure to present expert impeachment evidence in a child
sexual assault case. See Spaulding v. Larson, 202 F. Supp. 3d 737 (E.D.
Mich. 2016), rev’d No. 16-2261, 2017 WL 3328035 (6th Cir. Aug. 4,
But this case is readily distinguishable from cases like Vasquez.
First, the prosecution here did not present any evidence regarding the
consistency of EO’s prior allegations. Nor did it present any expert
testimony aimed at bolstering EO’s credibility by referring to the
victim’s prior consistent accounts. In contrast, in Vasquez “[t]he state
also offered testimony from [the victim’s] father, Don Shaffer, the
investigating police officer, and the social worker who interviewed [the
victim]. Their testimony tended to provide circumstantial evidence of
her credibility: that her story remained consistent throughout the
investigation and that she acted out of the ordinary, including being
fearful for her safety and calling her father daily from school.” Id., 345
F. App’x at 106-107.
Here, in contrast, there was no prosecution expert testimony for
Dr. Swerdlow-Freed to challenge. And there is reason to doubt that Dr.
Swerdlow-Freed’s own opinion regarding EO’s credibility would have
been admissible. See, e.g., People v. Chevis, Dkt. No. 304358, 2013 WL
5539279, at *11 (Mich. Ct. App. Oct. 8, 2013) (“Had Dr. Swerdlow-Freed
or a comparable expert been retained by defendant for trial and
testified to credibility and improper influences, there may have been a
basis to exclude the testimony as invading the province of the jury.”).
Moreover, Vasquez involved a true word-against-word claim of
sexual abuse. Here, in contrast, and as discussed in detail above, the
prosecution’s case was strongly supported by petitioner’s letter, the
DNA evidence, and the victim’s knowledge of a unique sex term used by
petitioner. In light of the strong evidence presented against petitioner,
the Michigan Court of Appeals’ determination that “even if the failure
to retain a qualified expert was not sound trial strategy, [petitioner] has
failed to establish that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different.
. . ” is correct. Loriaux, 2014 WL 1510100, at *3. The claim is without
Certificate of Appealability
In order to appeal the Court’s decision, petitioner must obtain a
certificate of appealability. 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 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). A
federal district court may grant or deny a certificate of appealability
when the court issues a ruling on the habeas petition. Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion
that petitioner has not met the standard for a certificate of
appealability because his claims are devoid of merit. The Court will
therefore deny a certificate of appealability. The Court will also deny
permission to appeal in forma pauperis because an appeal of this
decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1) DENIES WITH PREJUDICE the
petition for a writ of habeas corpus, 2) DENIES a certificate of
appealability, and 3) DENIES permission to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: August 8, 2017
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 8, 2017.
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