Northrop v. Horton

Filing 9

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Earl Allen Northrop, Jr.,
Petitioner,
v.

Case No. 17-11213
Judith E. Levy
United States District Judge

Connie Horton,
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [1] AND DENYING A
CERTIFICATE OF APPEALABILITY
Earl Allen Northrop, Jr., a Michigan prisoner who is represented
by counsel, filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner challenges his Sanilac Circuit Court jury trial
conviction of three counts of first-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520b(1)(a), (b)(ii); kidnapping (“CSC I”), Mich. Comp.
Laws § 750.349(1)(c); three counts of second-degree criminal sexual
conduct (“CSC II”), Mich. Comp. Laws § 750.520c(1)(a), (b)(ii); and
second-degree child abuse, Mich. Comp. Laws § 750.136b(3).

Petitioner was sentenced as a fourth-time habitual felony offender
to concurrent terms of forty to sixty years of imprisonment for each of the
CSC I convictions, thirty to fifty years of imprisonment for the
kidnapping conviction, nineteen to thirty-five years of imprisonment for
each of the CSC II convictions, and nineteen to thirty-five years of
imprisonment for the second-degree child abuse conviction.
Petitioner raises four claims: (1) ineffective assistance of trial
counsel (“IAC”); (2) his involuntary statement to police was erroneously
admitted at trial and trial counsel was ineffective for failing to object to
its introduction; (3) evidence of his attempted flight was improperly
admitted at trial; and (4) the cumulative effect of the foregoing errors
rendered his trial fundamentally unfair. However, because petitioner
procedurally defaulted his claims and he neglected to raise an argument
excusing his default, he is not entitled to habeas relief.
I.

Background
This Court recites verbatim the relevant facts relied upon by the

Michigan Court of Appeals, which are presumed 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):
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This appeal arises from an incident on February 13,
2012. According to the testimony of the complainant,[1] on that
date, she was home from school with the defendant. The
complainant testified that she was fully dressed and watching
television when defendant approached her and tried to put
duct tape on her wrists and feet. Further, she testified that
she fought with defendant and he attempted to duct tape the
complainant to the bed and she grabbed the tape and would
not let go until he let her get up from the bed. The complainant
then went into the kitchen to get some water and she testified
that defendant approached her with the duct tape and told
her to stop resisting because he did not want to have to throw
her on the ground. The complainant and defendant continued
to fight until defendant picked up the complainant and took
her to an upstairs bedroom.
After fighting with the defendant and trying to fend him
off, the complainant next complied with defendant’s directions
to lie on the bed. Defendant then wrapped her legs together
in duct tape from her ankles to her knees, and taped her
wrists together. Defendant then tied the complainant’s socks
together and put them in her mouth, after which he told the
complainant that he was going to kill her and the rest of her
family members.
According to the complainant, defendant went
downstairs and the complainant heard a spray, and when
defendant returned he attempted to put a rag to her nose. The
complainant spit out the sock and told defendant to stop while
rolling in circles. At trial, the complainant identified what
looked like the rag in a picture of the closet in the family room
upstairs.

Complainant is petitioner’s daughter, who was fifteen years old at the time
of these events. (Dkt. 6-18 at 1.)
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As the complainant was in the bed, she testified that she
begged defendant to remove the duct tape. After defendant
took the tape off, he followed the complainant to the
downstairs bathroom. The complainant testified that she did
not attempt to flee because defendant would have chased her.
Defendant then began asking the complainant to have sex
with him, stating that he waited his whole life to do so.
Defendant pushed the complainant onto the bed and removed
their clothes. Defendant removed her underwear, licked his
fingers and rubbed her vagina, and then licked her vagina.
Defendant attempted a couple times without success to put
his penis in her vagina. Defendant was unable to get his penis
inside her, and she told him to stop and left to go to the
bathroom and get a drink.
Subsequently, defendant followed the complainant onto
the couch and told her he was “not done yet.” Defendant then
pulled her off the couch and onto the bed. Defendant then put
on a condom and put his penis in her vagina for about 10
minutes. Thereafter, the complainant testified that she went
into the bathroom and asked whether she could again get
dressed. Defendant responded that she could because he was
“not in the mood.” The complainant testified that she put on
the same clothes she previously wore, and further stated there
was no blood in her underwear, but she urinated blood while
in the bathroom.
Defendant remained in close proximity to the
complainant after the sexual assault, asking whether he
should leave, kill himself, or if she hated him. The
complainant then testified that defendant put the sheets by
the washing machine in the basement and then her mother
came home.
The complainant’s mother testified that when she
arrived home, she saw defendant walk out of the bathroom
and appeared disheveled, leading her to conclude he was
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intoxicated. The complainant and her mother then went to
pick up one of the complainant’s siblings and the complainant
began crying in the car. When the complainant’s mother
demanded that the complainant tell her what was wrong, the
complainant quietly twice said that “he” (defendant) raped
her.
The complainant’s mother then took the complainant
and other family members to the police station, the hospital,
and the Child Advocacy Center, where the complainant was
examined and her underwear collected.
An examination noted no injury in the vaginal area and
her hymen remained intact. The examination did not reveal
injuries to the complainant’s wrists or legs. The nurse who
conducted the examination testified that of the eight 15-yearolds that she had examined in 2012, only two had injuries.
The nurse also collected swabs from the complainant’s vaginal
vault, groin area, anal area, pubic area, mouth, smears from
the vaginal and oral areas, and hair from her head and pubic
area, as well as the complainant’s jeans, sweatshirt, and bra.
These items were then received by Michigan State Police
Trooper Jeffery Rodgers.
On the evening of February 14, 2012, Rodgers testified
that he returned to the residence to arrest defendant but no
one answered the door. Rodgers located defendant’s phone a
quarter mile away in a field using GPS coordinates and by
“pinging” the phone. Utilizing a dog, defendant was located in
the residence and arrested.
Around 1:30 a.m. on February 14, 2012, Trooper
Lizabeth Hunt assisted in executing a search warrant at
defendant’s residence. Hunt photographed a green rag in a
common-area closet upstairs and a ball of duct tape under the
complainant’s bed and duct tape in her dresser. Hunt testified
there were no sheets on the bed and no condom was found.
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Trooper Rodgers assisted in searching defendant’s residence
and he recovered a bottle of absinthe liquor.
Michigan State Police Trooper Daniel Thompson took
DNA swabs of defendant’s mouth and penis on February 14,
2012. Michigan State Police forensic examiner Cassandra
Campbell tested a sample swab from the inner thigh pubic
area of the complainant and compared it with a sample from
defendant. Due to a lack of DNA, Campbell was only able to
test 3 of 11 locations on the “Y” chromosome, and determined
that two locations matched defendant’s sample and the third
was not able to be determined. She explained that one of every
two Caucasian males could have the same “Y” DNA markers.
Accordingly, she testified, no conclusive determination could
be made regarding whether defendant’s DNA matched that of
the sample taken off the complainant’s body.
Michigan State Police forensic scientist Heather Clark
tested samples from defendant and the complainant. A
sample from the complainant’s inner thigh pubic area
indicated the DNA of two individuals consistent with a
mixture of the complainant and an unidentified male donor.
She further testified that defendant was not the major donor
and the amount of material from the minor male donor was
insufficient for comparison purposes. She also testified that
only defendant’s DNA was found on defendant’s penile swab
and that defendant’s underwear contained his DNA mixed
with two minor donors who were not able to be identified due
to the small size of the sample.
Michigan State Police trace evidence examiner Troy
Ernst examined the duct tape strips, bundles of fibers
removed from the duct tape adhesive, and the complainant’s
sweatshirt. Ernst applied the duct tape to the left sleeve of the
sweatshirt to investigate the fiber bundles that were removed
to compare by microscopy, color, and fiber type to the evidence
he received. Ernst did not notice any difference between the
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sample and evidentiary fibers. Ernst concluded that the
sweatshirt was a possible source of the fibers tested as well as
other similar sweatshirts. Additionally, Michigan State Police
fingerprint analyst Kathleen Boyer identified defendant’s
thumbprint on duct tape evidence.
At trial, one of the complainant’s siblings identified a
photo of his bedroom and stated that the items in the photo—
a sock, underwear, a hand towel, a trash bag, a water bottle,
and a tube shaped item—were not in the room when he was
last there. The complainant’s mother testified that when she
returned to the residence she saw a washcloth upstairs that
belonged in the kitchen or the wash. She denied that the
complainant kept duct tape in her drawer, and identified a
green multi-colored blanket found in the dryer as one often
used by the complainant.
Galen Krawczak testified that he was defendant’s friend
and neighbor for five years. On the evening of February 13,
2012, Krawczak was out of town when defendant called him
asking for a ride. Krawczak testified that defendant told him
that something bad was going to happen and he needed a ride
to Kentucky. According to Krawczak, defendant sounded
drunk, and Krawczak told him to lie down and cool off. (FN 1:
Defendant denied all of the allegations made by the victim.
additionally, defendant testified that he did not recall
telephoning Krawczak. He further contended that Krawczak
“had something going on” with the victim’s mother.)
Defendant testified that on February 13, 2012, the
complainant’s mother went to work and her siblings went to
school. He denied insisting the complainant stay home from
school because she previously wore make-up to school.
Defendant testified he had a headache from the night-time
cold medicine he took the night before and that he went to
sleep and drank a beer and took Nyquil before the
complainant’s mother came home. Defendant stated that he
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also drank peppermint schnapps and shots of absinthe alcohol
on February 12, 2012, and finished the bottle of absinthe on
February 14, 2012.
Defendant stated that he did not interact with the
complainant during the day, and could not have carried her
up the stairs because he has back problems. Defendant denied
using duct tape or sexually assaulting the complainant.
Defendant stated that he had never used a condom.
Defendant also denied telling a police officer that he
punished his children by using duct tape. On rebuttal, a one
minute and fifteen second portion of Hunt’s recorded
February 14 interview with defendant was played, during
which defendant describes previously duct taping the
children.
Defendant stated that he had to visit the complainant’s
teachers and principal on almost a weekly basis because she
made up stories about a teacher touching her breasts and
butt, loving her, and wanting to impregnate her. The
complainant denied these allegations, explaining that, while
in seventh grade, she wrote a statement to the school office for
her friends stating that a teacher looked down her friends’
shirts. The complainant’s mother also denied that the
complainant’s school ever called her about allegations she
made about teachers.
People v. Northrop, No. 315972, 2014 Mich. App. LEXIS, at *1–10 (Ct.
App. May 13, 2014).
Petitioner filed an appeal of right following his conviction and
sentence. Id. at *1. Petitioner, who had retained counsel at trial also
retained his trial counsel to represent him on direct appeal. On appeal,
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petitioner argued that there was insufficient evidence “to support his
convictions and that the jury’s verdict was against the great weight of the
evidence.” Id.
On May 13, 2014, the Michigan Court of Appeals affirmed
petitioner’s convictions. Id. Petitioner then filed an application for leave
to appeal in the Michigan Supreme Court, raising the same claims, but
it was denied by standard form order. People v. Northrop, 857 N.W.2d 37
(Mich. 2014) (Table).
Petitioner returned to the trial court and filed a motion for relief
from judgment, raising five claims, which are set forth verbatim from
that motion:
a. Mr. Northrop was denied the effective assistance of
counsel and the right to present a defense guaranteed by the
United States and Michigan Constitutions where trial defense
counsel failed to investigate and present an essential expert
witness, failed to present evidence of prior false allegations,
and failed to seek school records. Mr. Northrop was denied the
effective assistance of counsel on appeal by appellate counsel
failing to raise these issues.

b. The complainant’s school records are likely to contain
information that would have affected the outcome of Mr.
Northrop’s case, therefore this Court should turn over all
school records to Mr. Northrop, or minimally, this Court
should conduct an in camera review in accordance with People
v. Stanaway, 446 Mich. 643; 521 N.W.2d 557 (1994).
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c. Mr. Northrop was denied a fair trial by the
introduction of his involuntary statement as impeachment
evidence and was denied his right to the effective assistance
of counsel by his attorney’s failure to move to suppress his
statement or to object to its admission during trial. Mr.
Northrop was denied the effective assistance of counsel on
appeal by appellate counsel failing to raise the issue.
d. The trial court violated Mr. Northrop’s constitutional
due process rights by allowing the prosecution to introduce
evidence that Mr. Northrop attempted to flee the state. Mr.
Northrop was denied the effective assistance of counsel on
appeal by appellate counsel failing to raise the issue.
e. The cumulative effect of the errors by Mr. Northrop’s
attorney denied Mr. Northrop a fair trial and significantly
undermined the confidence in the reliability of the verdict.
(Dkt. 6-16 at 3–4.)
In an opinion dated March 4, 2016, the trial court denied the motion
for relief from judgment, finding that the claims were barred from review
by petitioner’s failure to raise them on direct review and because they
lacked merit. (Dkt. 6-18 at 4–5.) Petitioner appealed this decision, but
the Michigan Court of Appeals denied his application for leave to appeal
for “fail[ing] to establish that the trial court erred in denying his motion
for relief from judgment.” (Dkt. 6-20 at 1.) He then appealed to the

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Michigan Supreme Court, which summarily denied his application for
leave to appeal. People v. Northrop, 888 N.W.2d 107 (Mich. 2017) (Table).
Now, petitioner raises the same claims, though he formulates them
as four, rather than five, claims. First, he argues that his trial counsel
was ineffective when counsel failed to call a defense expert, failed to
present evidence of prior false accusations by the complainant, and failed
to seek the victim’s school records. Second, his involuntary statement to
police was erroneously admitted at trial and trial counsel was ineffective
for failing to object to its introduction. Third, evidence of his attempted
flight was improperly admitted at trial. And finally, the cumulative effect
of the foregoing errors rendered his trial fundamentally unfair. In
response, respondent argues that petitioner procedurally defaulted his
claims in state post-conviction proceedings, and in the alternative, he
fails on the merits under the applicable standard.
II.

Legal Standard
The Anti-terrorism and Effective Death Penalty Act (“AEDPA”)

limits the authority of a district court to grant habeas relief on a claim
that was adjudicated on the merits by the state courts. See § 2254(d). A §
2254 petition may only be granted if the state court adjudication was
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“contrary to” or resulted in an “unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the
United States.” § 2254(d)(1). “AEDPA sets forth a heavy burden for a
petitioner to overcome.” Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir.
2011).
III. Analysis
Respondent argues that petitioner procedurally defaulted his
claims under Michigan Court Rule 6.508(D)(3) on his motion for relief
from judgment, a Michigan state post-conviction proceeding. (Dkt. 5 at
27–31.) When respondent, a state official, raises a procedural default
defense, as here, the district court must address it before reaching the
merits of a petitioner’s habeas claims, especially when the procedural
default question is clear. Sheffield v. Burt, 731 F. App’x 438, 441 (6th Cir.
2018) (“However, where a straightforward analysis of settled state
procedural default law is possible, federal courts cannot justify bypassing
the procedural default issue.”) (citing Duyst v. Rapelje, 483 F. App’x 36,
44–56 (6th Cir. 2012); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir.
2003)) (considering Rule 6.508(D)(3)). In this case, the procedural default

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question is clear, as discussed infra, and so the Court considers it first.2
Because petitioner procedurally defaulted his claims in state postconviction proceedings and now fails to show cause and actual prejudice,
or a miscarriage of justice, he cannot avoid dismissal of his petition
because of this default.
If a claim is not considered by a state court “due to a state
procedural rule that prevents the state courts from reaching the merits
of the petitioner’s claim, that claim is procedurally defaulted and may not
be considered by the federal court on habeas review.” Seymour v. Walker,
224 F.3d 542, 549–50 (6th Cir. 2000) (citing cases). A petitioner has
procedurally defaulted when:
(1) the petitioner failed to comply with a state procedural rule
that is applicable to the petitioner’s claim; (2) the state courts
actually enforced the procedural rule in the petitioner’s case;
and (3) the procedural forfeiture is an “adequate and
independent” state ground foreclosing review of a federal
constitutional claim.

Even if the procedural default question were complicated and judicial
economy weighed in favor of addressing petitioner’s claims on the merits first, the
Court would still resolve the claims against petitioner. See Sheffield, 731 F. App’x at
441 (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)) (explaining that courts
may avoid complex state law procedural questions and turn to the merits if they are
resolvable against the petitioner to further judicial economy). Here, however,
procedural default under Rule 6.508(D)(3) is governed by well-settled precedent, and
so the Court heeds Sheffield.
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Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003). It is well-established
that Rule 6.508(D)(3) satisfies the third element as an adequate and
independent state ground. E.g., Amos v. Renico, 683 F.3d 720, 733 (6th
Cir. 2012); Willis, 351 F.3d at 745. Petitioner has procedurally defaulted
his claims because the two remaining elements are satisfied.
First, petitioner failed to comply with Rule 6.508(D)(3).3 The rule
states that all claims that could be brought on direct appeal must be
raised on direct appeal. Mich. Ct. R. 6.508(D)(3); see also Guilmette, 624
F.3d at 291. This unmistakably includes trial IAC claims. E.g.,
Schwarzlose v. Waddell, No. 18-2216, 2019 WL 257831, at *2 (6th Cir.
Jan. 4, 2019); Ivory v. Jackson, 509 F.3d 284, 292–93 (6th Cir. 2007).
Petitioner argues that he did not violate this rule (Dkt. 8 at 2), but
provides no support for this assertion.
Moreover, the state trial court opinion shows that petitioner knew
he had violated Rule 6.508(D)(3). Like federal habeas, a Michigan

The parties appear to agree that the last reasoned state court decision is the
state trial court’s denial of petitioner’s motion for relief from judgment. This is correct
because the Michigan Supreme Court summarily denied petitioner’s appeal of the
denial of his motion for relief from judgment, Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991), and because the Michigan appellate court only referred to Michigan Court
Rule 6.508(D), Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2012) (en banc)
(holding that Rule 6.508(D) alone is too ambiguous to be a reasoned state decision).
3

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defendant seeking post-conviction review under 6.508(D) who failed to
raise a claim at the appropriate time can avoid the application of the
procedural rule by showing “good cause” and “actual prejudice.” Mich. Ct.
Rule 6.508(D)(3)(a) & (b). The state court opinion evaluated what it called
petitioner’s “good cause” and “actual prejudice” arguments. (Dkt. 1-10 at
4–5.) Although respondent did not file the briefs in support of and against
petitioner’s motion for relief from judgment, Rules Governing § 2254
Cases, Rule 5(d)(1)–(2), 28 U.S.C. foll. § 2254, the Court can infer from
the opinion that petitioner made a good cause and actual prejudice
argument. Petitioner would not have made such an argument unless he
knew he was in violation of Rule 6.508(D)(3). An argument to the
contrary now defies the state record.
Second, the state trial court enforced Rule 6.508(D)(3). First, the
state trial court referenced “actual prejudice,” which refers to the second
requirement for evading the harsh consequences of Rule 6.508(D)(3)(b).
(Dkt. 1-10 at 2.) Then, on the final page of its decision, the state trial
court cited Rules 6.508(D)(3)(a) and (3)(b)(i), holding that petitioner had
not shown good cause or actual prejudice that would permit his
ineffective assistance of trial counsel claims to go forward. (See id. at 4–
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5.) Again, there would be no reason for the state trial court to evaluate
petitioner’s good cause and actual prejudice argument unless it were
applying Rule 6.508(D)(3).
Petitioner argues that the state trial court did not enforce Rule
6.508(D)(3) because it addressed the merits of the trial IAC claims (Dkt.
8 at 2), but this is a misunderstanding of the state court decision. To avoid
the application of Rule 6.508(D)(3), the Court infers that petitioner
argued he had good cause for not raising his trial IAC claims because he
had ineffective assistance of appellate counsel (“appellate IAC”). (Dkt. 110 at 5.) To determine whether petitioner had good cause, i.e.
constitutionally deficient appellate counsel, the state trial court
examined his underlying trial IAC claims. If petitioner’s underlying trial
IAC claims were weak or lacked merit, there could be no appellate IAC
for not raising those claims on direct appeal. See, e.g., Martin v. Mitchell,
280 F.3d 594, 606 (6th Cir. 2002). The state court did not reach a decision
on the merits of the trial IAC claims, but determined that petitioner had
not shown appellate IAC that could serve as good cause for not applying
Rule 6.508(D)(3); it rested its decision on procedural grounds. See
Schwarzlose, 2019 WL 257831, at *2 (“[A]lthough the trial court analyzed
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the merits of Schwarzlose’s ineffective-assistance claims in reaching the
ultimate conclusion that he procedurally defaulted the claims under Rule
6.508(D), ‘when a state court relies on an independent procedural ground
to deny relief, a discussion of the merits will not supersede the procedural
bar to habeas relief.’” (quoting Baze v. Parker, 371 F.3d 310, 320 (6th Cir.
2004))). Petitioner’s argument that the state trial court did not enforce
the state procedural bar disregards the posture of the state trial court’s
decision, as well as the nature of his own arguments in state court.
Only if petitioner shows cause and actual prejudice, or a
miscarriage of justice, can he avoid the application of a procedural default
in federal habeas. Wainwright v. Sykes, 433 U.S. 72, 84–87 (1977).
Because petitioner’s counsel ignored or fatally misinterpreted the state
court’s application of Rule 6.508(D)(3) in his post-conviction proceedings,
counsel failed to put forth any argument that would excuse the default
under Wainwright.
Although petitioner raised an appellate IAC claim in state court to
avoid the state procedural default rule, which properly exhausted the
claim, Murray v. Carrier, 477 U.S. 478, 489 (1986), he neglects to raise it
here to avoid procedural default in federal habeas. But even if the Court
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inferred from the trial IAC claims in the petition that petitioner was
raising appellate IAC as cause, he does not show actual prejudice. There
is nothing in the petitioner’s briefs that could be construed as a showing
of actual prejudice on appeal resulting from appellate counsel’s
performance. Therefore, the Court “decline[s] to waive the default.”
Williams v. Anderson, 460 F.3d 789, 808 (6th Cir. 2006). For these
reasons, petitioner has procedurally default his claims and is not entitled
to habeas relief.
IV.

Certificate of Appealability

Before petitioner may appeal, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). The
substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the claim
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
The Court finds that reasonable jurists could not debate whether he
procedurally defaulted his claims given the state trial court opinion
denying petitioner’s motion for relief from judgment on procedural
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grounds, and his failure to put forth any argument that would excuse his
procedural default. Accordingly, petitioner is not entitled to a certificate
of appealability.
V.

Conclusion
For the foregoing reasons, the petition for writ of habeas corpus is

DENIED and a certificate of appealability is DENIED.
IT IS SO ORDERED.
Dated: February 11, 2019
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 February 11, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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