Smith v. Bergh

Filing 16

ORDER granting 14 Motion to Amend Brief; and Directing Respondent to file an Answer to Petitioner's Exhausted Claims,. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWIN ANTHONY SMITH,
Petitioner,
Case No. 16-cv-10098
Honorable John Corbett O’Meara

v.
DAVID BERGH,
Respondent.
____________________________/

ORDER GRANTING PETITIONER’S MOTION TO AMEND
HIS BRIEF [ECF No. 14] AND DIRECTING RESPONDENT
TO FILE AN ANSWER TO PETITIONER’S EXHAUSTED CLAIMS
Background
This matter is pending before the Court on petitioner Edwin Anthony Smith’s pro
se habeas corpus petition under 28 U.S.C. § 2254. The petition challenges Petitioner’s
Wayne County conviction for first-degree criminal sexual conduct, Mich. Comp. Law §
750.520b(1)(a) (sexual penetration of a person under the age of thirteen). The facts
leading to this conviction have been summarized by the Michigan Court of Appeals as
follows:
Defendant was . . . accused of penetrating the victim with two different
sexual devices, one described as orange and the other as purple, and
then performing cunnilingus on her. The police seized an orange device
when they executed a search warrant, but a purple device was never
found. During the early stages of the case, the prosecutor stated that the
orange device would be submitted to the state police crime laboratory for
DNA analysis, but this never occurred. At trial, defense counsel did not
challenge the prosecutor’s failure to pursue any DNA analysis of the
orange device, and instead pursued a defense strategy of attacking the
adequacy of the police investigation. Defense counsel vigorously crossexamined the officer-in-charge regarding the absence of any DNA

analysis of the orange device and the failure to investigate other
potentially exculpatory leads. Defense counsel also advanced the theory
that the victim and her grandmother contrived the allegations so that the
victim could live with her grandmother, who had a longstanding hostile
relationship with her daughter, who was the victim’s mother and
defendant’s wife.
People v. Smith, No. 312021, 2014 WL 4263093, at *1 (Mich. Ct. App. Aug. 28, 2014).
The Michigan Court of Appeals affirmed Petitioner’s conviction, see id., and on May 28,
2015, the Michigan Supreme Court denied leave to appeal. See People v. Smith, 497
Mich. 1028; 863 N.W.2d 316 (2015).
Petitioner filed his habeas petition (ECF No. 1) on January 12, 2016.
Respondent moved to dismiss the petition on the basis that Petitioner had failed to
exhaust state remedies for all his claims. Alternatively, Respondent sought to have
Petitioner file a more definite statement of his claims. (ECF No. 6.)
In an order addressing Respondent’s motion (ECF No. 12), the Court
summarized Petitioner’s habeas claims as follows:
1. The trial court failed to control the proceedings by:
(a) allowing DNA test results to be excluded;
(b) allowing the prosecutor to breach a court order at trial;
(c) allowing the prosecutor to deceive jurors regarding DNA
testing of the orange object;
(d) ignoring Petitioner’s request to conduct an in camera
investigation of a transcript; and
(e) reading a jury instruction that contradicted its “special
conditions” court order.
2. The prosecutor:
(a) proceeded to trial without DNA test results;

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(b) breached the trial court’s October 4, 2011 “special
conditions” order;
(c) broke her promise to provide the defense with the DNA test
results after she received them;
(d) broke the chain of custody;
(e) presented fabricated trial testimony and misled the jurors when
she presented Officer Kimree Beckem to the jurors as the officer in
charge of the case;
(f) knew false and misleading statements were being made
concerning testing of the orange object;
(g) maliciously elicited false and misleading testimony from Officer
Kimree Beckem;
(h) failed to correct Officer Beckem’s false statements;
(i) omitted her October 4, 2011 calendar conference
representations to mislead jurors regarding the DNA testing of the
orange device;
(j) knew or should have known that she was conducting
herself in ways that undermined the integrity of the judicial
process;
(k) represented to the court and to defense counsel that the DNA
testimony would take about 30 days; and
(l) knew or should have known that jury instruction 20.25
was an improper jury instruction.
3. Defense Counsel:
(a) failed to investigate the case;
(b) failed to raise scientific DNA testing as being an
additional issue that predecessor counsel failed to pursue;
(c) failed to cross-examine predecessor counsel at the
show-cause hearing;

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(e)1 failed to timely object to the prosecutor’s admission of the
orange object;
(f) allowed the chain of custody to be broken;
(g) failed to file a motion to suppress the orange object;
(h) failed to move to dismiss the third count;
(i) failed to object to the prosecutor’s suppression of DNA test
results;
(j) failed to timely object to the prosecutor’s presentation to
jurors that Officer Kimree Beckem was the officer in charge;
(k) failed to object to the prosecutor misleading jurors concerning
the DNA testing of the orange object;
(l) failed to consult with or call an expert witness on DNA
evidence;
(m) failed to object to an improper jury instruction for count 3;
(n) failed to request an in camera inspection of the October
4, 2011 calendar conference transcript; and
(o) failed to request that DNA testing be conducted on the orange
object.
4. He was denied a fair appellate process when the Michigan Court of Appeals
failed to rule on the merits of the Bode Technology Crime Lab DNA test results.
The Court determined that Petitioner had exhausted state remedies for:
claims 1(a), 1(b), 1(c), and 1(d) to the extent they asserted
that the trial court allowed the prosecutor to proceed without
the results of the DNA tests and that the trial court ignored
Petitioner’s request at sentencing to have the court review
the transcript of a calendar conference regarding DNA
testing;
claim 2(a) to the extent it asserted that the prosecutor duped
the jury by proceeding to trial without the DNA results and
without informing the jury about the DNA testing; and
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There is no sub-claim 3(d) in the habeas petition.
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claim 3(a) (failure to investigate).
The Court stated that the following claims were not exhausted in state court:
sub-claim 1(e) and the allegation that the trial court violated
Petitioner’s right of confrontation;
sub-claims 2(b) through 2(l) and the additional claim that the
prosecutor suppressed and failed to preserve evidence;
sub-claims 3(b) through 3(o); and
Petitioner’s fourth claim.
The Court denied without prejudice the State’s motion to dismiss the petition and
ordered Petitioner to inform the Court whether he wished to (1) voluntarily dismiss his
habeas petition, (2) have the Court hold his petition in abeyance while he pursued state
remedies for his unexhausted claims, or (3) delete his unexhausted claims and have the
Court proceed with his exhausted claims. In a response to the Court’s order (ECF No.
13), Petitioner chose the third option and asked the Court to delete his unexhausted
claims and to proceed with his exhausted claims.
Petitioner subsequently moved to amend his habeas brief to include a portion of
the victim’s testimony at his preliminary examination. (ECF No. 14.) Petitioner asked to
have the record reflect the victim’s testimony at the preliminary examination that she put
the orange object inside herself before Petitioner put the toy inside her. (9/27/11 Prelim.
Examination Tr. at 28.)
Order
Petitioner’s motion to amend his brief to include testimony from the preliminary
examination (ECF No. 14) is granted, because the entire transcript of the preliminary

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examination is already a part of the record before the Court, see ECF No. 7-2, and
Petitioner appears to be clarifying his arguments rather than adding a new claim.
The Court orders Respondent to file an answer to Petitioner’s exhausted claims,
as enumerated above. The response shall be due within sixty (60) days of the date of
this order. Petitioner shall have forty-five (45) days from the date of Respondent’s
response to file a reply.

Date: August 9, 2017

s/John Corbett O’Meara
United States District Judge

I hereby certify that on August 9, 2017, a copy of this order was served upon the
parties of record using the ECF system, and/or first-class U.S. mail.
s/William Barkholz
Case Manager

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