Perry #156982 v. Berghuis

Filing 20

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 18 , denying petition for writ of habeas corpus; and denying certificate of appealability ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL THEODORE PERRY,
Petitioner,
Case No. 1:13-CV-686
v.
HON. ROBERT HOLMES BELL
MARY BERGHUIS,
Respondent.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION AND
DENYING PETITION FOR WRIT OF HABEAS CORPUS
On February 26, 2014, Magistrate Judge Joseph G. Scoville issued a Report and
Recommendation (“R&R”) recommending that Petitioner’s § 2254 petition for writ of habeas
corpus be denied. (ECF No. 18.) This matter is before the Court on Petitioner’s objections
to the R&R. (ECF No. 19.)

This Court is required to make a de novo review upon the record of those portions
of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.”).
Although the Magistrate Judge’s R&R is reviewed de novo, this Court must review the state

court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
Petitioner has raised three specific objections to the R&R. First, he contends that the
Magistrate Judge erred in concluding that his conviction under the Michigan third degree
criminal sexual conduct statute (“CSC III”) based on affinity, Mich. Comp. Laws
§ 750.520d(1)(d), is not a substantive due process constitutional error which requires relief
by way of a writ of habeas corpus. Petitioner contends that, contrary to the Magistrate
Judge’s analysis, Lawrence v. Texas, 539 U.S. 558, (2003), governs this issue because
Petitioner and the complainant were both adults, their sexual relationship was consensual,
and the conduct occurred in the privacy of a home. Petitioner contends that the Michigan
statute cannot be consistent with Lawrence and also reach his conduct.
Petitioner’s challenge is not a facial challenge to the statute, but a challenge to the
constitutionality of the statute as applied to the facts of his case. As correctly noted in the
R&R, such a challenge is foreclosed by Petitioner’s guilty plea.

(R&R 7.) (“Because

petitioner does not challenge the voluntary and intelligent nature of his guilty plea, he cannot
challenge the constitutionality of the Michigan statute as applied to his case.”). Accordingly,
the Court finds no merit to Petitioner’s substantive due process objection. In addition, to the
extent Petitioner is making a facial challenge to the statute, the Court agrees with the
Magistrate Judge that Lawrence does not control because it applied to homosexual activity
and not to incest. Lowe v. Swanson, 663 F.3d 258, 264 (6th Cir. 2011) (holding that, even
assuming Lawrence established a fundamental right, it did not address or clearly establish

2

federal law regarding state incest statutes).
Petitioner’s second objection relates to the Magistrate Judge’s rejection of Petitioner’s
argument that Michigan’s third-degree CSC statute, Mich. Comp. Laws § 750.520d, as
applied to incest, creates a strict liability crime in violation of the Due Process Clause. In
order to qualify for habeas relief, Petitioner is required to show that his conviction “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Petitioner
continues to rely on Morrisette v. United States, 342 U.S. 246 (1952), as the “clearly
established Federal law” establishing due process requirements that were violated in this
case. The Court agrees with the R&R that Morissette merely construed Congressional intent
and did not purport to enunciate any constitutional due process rule that was binding on the
states. (R&R 12 n.4.) Petitioner has not challenged this analysis, nor has he identified any
other Supreme Court authority that supports his claim.
Petitioner also contends that the Magistrate Judge erred in concluding that CSC III
based on affinity is a general intent crime. The case the R&R relies on, People v. Russell,
703 N.W.2d 107, 114 (Mich. Ct. App. 2005), involved a conviction for CSC IV rather than
CSC III. CSC IV requires sexual contact for a sexual purpose. Mich. Comp. Laws
§ 750.520e(1)(d), § 750.520a(n). Petitioner contends that because CSC III only requires
penetration and does not require that it be for a sexual purpose, it does not have a mens rea
element and is a strict liability crime.

3

Petitioner’s contention that CSC III based on affinity is not a general intent crime is
not supported by Michigan case law. “[G]eneral intent is merely the intent to perform the
physical act itself.” People v. Lardie, 452 Mich. 231, 240, 551 N.W.2d 656, 660 (Mich.
1996), overruled on other grounds by People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774
(2005). Under Michigan law, “third-degree criminal sexual conduct is a general intent crime
proved by showing that the defendant committed a proscribed sexual act.” People v.
Corbiere, 559 N.W.2d 666, 669 (Mich. Ct. App. 1996); see also People v. Piper, 567
N.W.2d 483, 485 (Mich. Ct. App. 1997) (“[C]riminal sexual conduct is a general intent
crime; a defendant’s specific intent is not at issue.”).

The Court is satisfied that under

Michigan law, CSC III based on affinity requires the intent to commit the physical act of
penetration. Accordingly, the Magistrate Judge was correct in concluding that it is a general
intent crime.
Petitioner’s third objection concerns the Magistrate Judge’s rejection of his ineffective
assistance of counsel claim. Petitioner contends that trial counsel was ineffective for failing
to challenge the constitutionality of the prosecution under the CSC III statute and for
advising Petitioner to plead guilty under the demonstrably unconstitutional statute. Because
the Court agrees with the Magistrate Judge’s determination that neither the statute nor the
prosecution under it was unconstitutional, the Court also agrees that Petitioner’s ineffective
assistance claim cannot be sustained.
The Court will deny Petitioner’s habeas petition for the reasons stated in the R&R.

4

An appeal may not be taken from a final order in a habeas case unless a certificate of
appealability is issued. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of
appealability may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district court must issue or
deny a certificate of appealability at the time it enters a final order adverse to the petitioner.
Rule 11(a) of the Rules Governing § 2254 Cases. Because Movant has failed to make a
substantial showing of the denial of a constitutional right, a certificate of appealability will
be denied. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections to the Report and
Recommendation of the Magistrate Judge (ECF No. 19) are OVERRULED.
IT IS FURTHER ORDERED that the February 26, 2014, R&R (ECF No. 18) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus
(ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated: July 14, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

5