Hansen #384366 v. Burton

Filing 12

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

JEFFREY JOHN HANSEN,
Petitioner,
v.

Case No. 1:14-cv-124
Honorable Paul L. Maloney

DeWAYNE BURTON,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of
the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed
to it that the petitioner is not entitled to relief in the district court.” Rule 4, RULES GOVERNING § 2254
CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack
merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims,
as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178
F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes
that the petition must be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations
Petitioner Jeffery John Hansen presently is incarcerated at the Richard A. Handlon
Correctional Facility in Ionia, Michigan. On March 26, 2010, a Kent County Circuit Court jury convicted
Petitioner of several charges that had been consolidated for trial including possession of child sexually
abusive material in violation of MICH. COMP. LAWS § 750.145(c)1; using a computer to commit a crime
in violation of MICH. COMP. LAWS § 752,797(3)(d); and two counts of first-degree criminal sexual
conduct (victim under 13 years of age) in violation of MICH. COMP. LAWS § 750.520(1)(a).
The four charges did not all arise from one criminal incident. The two counts of first-degree
criminal sexual conduct arose from an incident that occurred on or about June 19, 2009. The other two
counts arose from the presence on Petitioner’s computer and an external hard drive of child sexually
abusive material. The presence of that material on Petitioner’s computer and hard drive were not directly
related to the criminal sexual conduct on June 19. The material was discovered, however, during the
investigation of the June 19 crime.
The prosecutions of the criminal sexual conduct charges, on the one hand, and the child
sexually abusive material charges, on the other hand, proceeded separately until February 12, 2010. On
that date, the trial court granted the prosecution’s motion to consolidate the two cases for trial.

1

As explained below, the original charge was not possession of child sexually abusive material, but making or
producing such material. Indeed, the jury convicted Petitioner of that crime. Prior to sentencing, however, the Michigan
Supreme Court rendered its decision in People v. Hill, 786 N.W.2d 601 (Mich. 2010). In Hill, the court overturned a court
of appeals decision that considered mere copying of child pornography for personal use to constitute making or
producing it, a 20-year felony. That change of the law rendered the proofs against Petitioner insufficient with regard to
the making or producing count. The trial court permitted the prosecutor to amend the information, after conviction, to
change the charge to possession of child sexually abusive material. The court then sentenced Petitioner as if he had
been convicted of that “lesser included” offense.

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(Consolidation Hr’g Tr., PageID.120.) 2 The court found persuasive the prosecutor’s argument that
consolidation would cause no additional prejudice because MICH. COMP. LAWS § 768.27a3 would permit
the introduction of evidence relating to the criminal sexual conduct charges in a separate trial on the child
sexually abusive material charges, and vice-versa. (Id.) Petitioner’s counsel recognized that separate trials
would not avoid the jury hearing all the evidence anyway, so she posed no objection to the consolidation.
(Id.)
The first witness at the consolidated trial was Petitioner’s eight-year-old stepdaughter,
Abigail. Abigail testified that one evening, while her mother was working, she and Petitioner were watching
television. (Trial Tr. I, PageID.258, 261.) She testified that Petitioner “did sucks” to her by putting his
penis and a purple toy in her butt. (Id., PageID.259.) Petitioner made her “pinky swear” not to tell
anyone. (Id., PageID.258-59.) Nonetheless, Abigail told her grandmother, Petitioner’s mother. (Id.
PageID.260.) She later told her mother and her mother’s friend Ashlee. (Id.)
Dr. Eugene Shatz, chief of adolescent medicine at Helen DeVos Children’s Hospital,
testified that he examined Abigail on July 1, 2009, at the Children’s Assessment Center. (Id.,

2

Petitioner provided several transcripts of the trial court proceedings as an attachment to his motion to amend
the petition. The attachment that includes the transcripts is docketed at ECF No. 8-2. The transcripts shall be referenced
as follows:
February 12, 2010 Motion to Consolidate Hearing
(Consolidation Hr’g Tr., PageID.__)
March 22, 2010 Trial Transcript (Volume 1) (Trial Tr. I, PageID.__)
March 24, 2010 Trial Transcript (Volume 2) (Trial Tr. II, PageID.__)
March 25, 2010 Trial Transcript (Volume 3) (Trial Tr. III, PageID.__)
March 26, 2010 Trial Transcript (Volume 4) (Trial Tr. IV, PageID.__)
August 10, 2010 Sentencing Transcript
(Sentencing Tr. I, PageID.__)
September 14, 2010 Sentencing Transcript
(Sentencing Tr. II, PageID.__).
3

MICH . COMP . LAWS § 768.27a(1) provides “in a criminal case in which the defendant is accused of committing
a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is
admissible and may be considered for its bearing on any matter to which it is relevant.”

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PageID.267.) Dr. Shatz was permitted to testify with regard to his personal observations, but also as an
expert with regard to the physical and behavioral manifestations of child sexual abuse. (Id., PageID.26667.) Dr. Shatz testified that given the medical history and his findings upon physical examination, Abigail’s
disclosure with regard to the events was consistent with the physical findings. (Id., PageID.269.)
Petitioner’s counsel also elicited from Dr. Shatz, however, that whether his physical examination found
something or found nothing, it could confirm the child’s story. (Id.) Dr. Shatz went so far as to say that
the disclosure itself, if it is age-appropriate, is frequently the only part of the physical examination that
confirms child sexual abuse. (Id.)
Abigail’s mother, Petitioner’s wife, Amanda Hansen testified that Abigail informed Amanda
and Amanda’s friend Ashlee what had happened between Abigail and the Petitioner. (Id., PageID.273.)
The next day Amanda took Abigail to her pastor and then to Abigail’s pediatrician’s office. (Id.,
PageID.274-76.) She contacted Child Protective Services; a detective arrived at their home to investigate
that same day. (Id., PageID.276-79.) The detective took several items from the home at that time. (Id.)
He also later obtained Petitioner’s computer and Blackberry from Amanda. (Id.)
Ashlee Norton, Amanda’s friend, testified that she was present when Abigail disclosed the
sexual abuse. (Id., PageID.286-87.)
Physician’s assistant Jamie Noorman testified that she examined Abigail when Amanda
brought her in to the pediatrician’s office. (Trial Tr. III, PageID.330.) PA Noorman told Amanda “based
on what Abigail had told [PA Noorman], [PA Noorman] felt that–very compelled that something had
happened to her and that this needed to be reported to the police immediately.” (Id., PageID.332.) PA

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Noorman also testified that she was concerned for the safety of Abigail and Amanda if they were to return
home and Petitioner were there. (Id.)
Michigan State Police Detective Sergeant Rebecca Macarthur conducted the forensic
examination of Petitioner’s laptop computer and external hard drive. (Trial Tr. III, PageID.309-10.) She
testified that there were 11 images or movies on Petitioner’s laptop that were child pornography. (Id.,
PageID.310.) She found 16 child-pornography movies on Petitioner’s external hard drive. (Id.,
PageID.317.) Nine of the movies on the external hard drive were identical to movies on the laptop. (Id.)
Detective Sergeant Macarthur’s testimony made clear that the files were not in the computer or hard drive
by accident; it took very purposeful action for them to exist in the locations they existed on the devices.
After the prosecution rested, and the court denied Petitioner’s directed verdict motions,
the trial court asked Petitioner if he wanted to testify or remain silent:
Court: All right, Mr. Hansen, we’ve arrived at the point in the trial where it’s your turn to
make your decision. Have you talked with Ms. Bryant about whether you want
to testify in the case?
Def.

Yes.

Court: You have an absolute right to take the witness stand and testify in your own
defense if you want. Do you understand that?
Def.: Yes, I do.
Court: You also have an absolute right not to take the witness stand, and I will forcefully
instruct the jury that they cannot consider your silence against you. Do you
understand that?
Def.: Yes, I do.
Court: Which of those two choices would you like to make? Do you want to testify or
remain silent?
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Def.: Remain silent.
Court: Very well. Do you think you’ve had enough time to talk to Ms. Bryant about this
decision?
Def.: Yes.
Court: And is this your decision that’s being made here today? You’re the one choosing
to remain silent?
Def.: To be honest with you, I’m kind of flip-floppy about it. I wanted to make a
statement, but, then again, I don’t.
Court: Okay. Well, you obviously recognize that, if you chose to take the witness stand,
you would be cross-examined, as well. You wouldn’t be able to just simply stand
up there and say whatever you want to say.
Def.: At this point in time, I do remain silent.
Court: Are you sure that’s what you want to do?
Def.: Yes.
(Trial Tr. III, PageID.348.)
Between the last day of trial and the first date scheduled for sentencing, the Michigan
Supreme Court decided Hill, 786 N.W.2d. at 601. In Hill, the Michigan Supreme Court considered
whether downloading child sexually abusive material from the internet and copying it to a disc for personal
use constituted the making or production of child sexually abusive material. The Hill court concluded it did
not. Considering the entire statutory scheme, the court determined that “making” or “producing” child
sexually abusive material meant originating such material. Id. at 608-09. The mere duplication that occurs
when one downloads material from the internet and copies it to a disc for personal use, was properly
charged as possession of child sexually abusive material. Id. at 603 (“Those who copy or duplicate existing

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prohibited images for personal use do not produce or make child sexually abusive material under MCL
750.145c(2); rather, they are only in possession of it.”)
The parties knew this issue was before the Michigan Supreme Court at the time of
Petitioner’s trial. It was referenced several times. When the time came for preparation of final jury
instructions, the trial court discussed the issue with the parties. (Trial Tr. III, PageID.347-48.) The court
noted it was bound to follow the Court of Appeals decision in People v. Hill,715 N.W.2d 301 (Mich. Ct.
App. 2006), which held that downloading child sexually abusive material from the internet and copying it
to a disc constituted making or producing such material, even though it was possible that the Michigan
Supreme Court’s decision might alter the state of the law. (Id.) The trial court offered the parties the
opportunity for an instruction on the lesser included offense of possession of child sexually abusive material.4
The parties declined the offer.
The court instructed the jury and the parties made their closing arguments. The jury
deliberated for slightly more than one hour before returning their verdicts of guilty on all four charges.
The court sentenced petitioner to a sentence of 2 years to 6 years on the possession
conviction, consecutive to 2 years to 10 years on the use of a computer to commit a crime conviction,
consecutive to concurrent terms of 25 years to 50 years on each criminal sexual conduct conviction.
Petitioner appealed his convictions to the Michigan Court of Appeals. He raised five issues:

4

The trial court described the proposition as “all or nothing.” (Trial Tr. III, PageID.347.) The court stated “if
Hill is overturned, there would simply be a vacated conviction here with nothing behind it.” (Id.) The court elaborated:
“if the Supreme Court reverses Hill, then Mr. Hansen simply wins . . . [a]nd if they don’t reverse Hill, you’re none the
worse for [wear] because under Hill, there’s clearly enough to get to the [jury] and convict here.” (Id.) The court’s
statements regarding the impact of a Michigan Supreme Court reversal in Hill ultimately proved to be inaccurate.

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I.

Fundamental fairness and due process of law prohibit joinder of two distinct and
separate charges involving completely different acts on separate dates.

II.

Improper other act and inadmissible opinion testimony denied defendant a right to
a fair trial and due process of law.

III.

Where in a possession of child sexually abusive material case the evidence is that
defendant had viewed one adult pornographic movie, the evidence is not
constitutionally sufficient to sustain the conviction.

IV.

Defense counsel’s failure to make proper objections and record was
constitutionally ineffective assistance of counsel.

V.

Where defendant requested and paid for a polygraph examination, MCL 776.21,
and was not afforded an opportunity for a polygraph examination, a new trial and
opportunity for a polygraph examination are required.

(Def.-Appellant’s Br. on Appeal, ECF No. 8-2, PageID.89.) Each issue was addressed in the Michigan
Court of Appeals opinion affirming the convictions. People v. Hansen, Nos. 300603; 300616, 2012 WL
2126064 (Mich. Ct. App. June 12, 2012). Petitioner applied for leave to appeal in the Michigan Supreme
Court. That court denied his application on November 20, 2012. Petitioner did not petition for certiorari
to the United States Supreme Court.
On February 6, 2014, Petitioner timely filed his initial petition for writ of habeas corpus in
this Court. (ECF No. 1.) He raised the five issues he raised in his direct appeal. Petitioner also filed a
motion to stay the petition and hold the habeas case in abeyance pending his attempt to exhaust additional
issues in the state courts by way of a motion pursuant to MICH. CT. R. 6.500 et seq. (ECF No. 5.) The
Court granted Petitioner’s motion.
During March of 2014, Petitioner filed his motion for relief from judgment in the Kent
County Circuit Court raising eight issues:

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VI.

Was the defendant denied the protections of the Double Jeopardy Clause of the
Mich. Const. 1963 Art 1 § 15; and of the 5th Amendment United States Const.,
when the trial court imposed a conviction and sentence after the Mich[i]gan court
of appeals ruled defendant’s conduct was not prescribed by the statute he was
prosecuted under and he distinctly pursued a defense of “all or nothing”?

VII.

Was the defendant denied the protections of the Mich. Const. 1963 Art. 1 § 20:
and the United States Const. Amendment Sixth, where the defendant was
convicted of an offense without a verdict entered by a judge or jury after trial?

VIII.

Was the defendant denied his right to due process of law under the Fourteenth
Amendment of the United States Constitution and the Michigan Constitution 1963
Art. 1 § 20, when the circuit court illegally allowed the prosecution to file and the
court proceeded to enter convictions and sentences on two offenses that were not
supported by the jur[y’s] verdict, an information contrary to the afore cited
constitutional protections of due process and the specific statutory provisions of
MCL 767.76 which governs amendments of the information?

IX.

Was the defendant denied his right to a fair trial under the due process clause of
the state and federal constitution when the unrelated and different types of criminal
charges were joined for trial where the prejudice of the type of offenses in issue
would have surely lent to taint defendant’s character?

X.

Defendant insists that there was insufficient evidence presented that he knowingly
possessed child sexually abusive material and because he was tried under an
erroneous theory to begin with hindered his ability to present an adequate defense
and that his conviction and sentence on the necessarily lesser included offense was
in error.

XI.

Did the trial court fail to conduct the proper evaluation required by People v.
Watkins, 491 Mich. 450, 481-491 (2012), when it admitted the evidence of the
defendant’s crimes in one case in the other, denying defendant his right to a fair
trial?

XII.

Was the defendant denied effective assistance of trial counsel in violation of the
Sixth Amendment of the United States Constitution and the Mich. Const. 1963,
Art 1 § 20.

XIII.

Was the defendant denied the effective assistance of appellate counsel in violation
of the Sixth Amendment of the United States Constitution and the Mich. Const.
1963 Art. 1 § 20, when appellate counsel failed to raise more significant issues that
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would have probably led to a reversal of the defendant’s convictions and
sente[n]ces than those appellate counsel did raise.
Pet., ECF No. 11, PageID.420-21.) The trial court denied relief by order entered July 2, 2014. Petitioner
sought leave to appeal to both the Michigan Court of Appeals and the Michigan Supreme Court. Those
courts denied leave to appeal on April 27, 2015 and March 29, 2016, respectively.
Petitioner filed his amended petition on May 31, 2016. The amended petition raises the
five issues he raised in his initial petition as well as the eight new issues from his post-conviction motion for
relief.
Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, PUB.
L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given effect to the
extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically
changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An
application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court
unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally

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difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation
marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the
dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655.
In determining whether federal law is clearly established, the Court may not consider the decisions of lower
federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly
established Federal law” does not include decisions of the Supreme Court announced after the last
adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38 (2011). Thus, the inquiry is
limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S. Ct. at 44).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it decides a case
differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to
‘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.’” Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S.
86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts

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enjoy broad discretion in their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134
S. Ct. 1697, 1705 (2014) (quotations marks omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed
to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey,
271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well
as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407
n.4 (6th Cir. 1989).
I.

Joinder of the criminal sexual conduct and child pornography charges
(habeas issues I, IX, and XI)5

Petitioner complains that he was denied due process when the court consolidated the two
separate prosecutions for trial. Petitioner attacks the consolidation of the two cases on several levels. First
he attacks it as a violation of state law, as expressed in MICH. CT. R. 6.120 and People v. Tobey, 257
N.W.2d 537 (1977).6 “[A] federal court may issue the writ to a state prisoner ‘only on the ground that

5

The Michigan Court of Appeals refused to consider the issue on direct appeal concluding that Petitioner
“waived this issue by affirmatively acquiescing in joinder of the charged offenses for trial.” Hansen, 2012 WL 2126064
at *1. “If a petitioner does not satisfy the procedural requirements for bringing an error to the state court’s attention-whether in trial, appellate, or habeas proceedings, as state law may require--procedural default will bar federal review.”
Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788, 2801 (2010). Nevertheless, the U.S. Supreme Court has held that
federal courts are not required to address a procedural default issue before deciding against the petitioner on the merits.
See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003). Where, as here, the procedural default issue raises more questions
than the case on the merits, the Court may assume without deciding that there was no procedural default or that
Petitioner could show cause and prejudice for that default. See Hudson, 351 F.3d at 215-16; Binder v. Stegall, 198 F.3d
177, 178 (6th Cir. 1999).
6

Although Petitioner cites the court rule and the Tobey case, his argument relies exclusively on the Tobey case.
The Michigan Supreme Court, however, has recognized that MICH . CT. R. 6.120 supercedes Tobey. People v. Williams,
769 N.W.2d 605, 607 (Mich. 2009).

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he is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson v.
Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts that
point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)
(quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS CASES). The federal
courts have no power to intervene on the basis of a perceived error of state law. Wilson, 562 U.S. at 5;
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 67-68 (1991); Pulley v.
Harris, 465 U.S. 37, 41 (1984). Thus, violations of state standards for joinder will not warrant habeas
relief.
Petitioner next raises a claim cognizable on federal habeas review when he complains that
the joinder rendered his trial fundamentally unfair. The Sixth Circuit has recognized “[b]y allowing joinder
of offenses, the possibility exists that a jury may use the evidence of one of the charged crimes to infer a
general criminal disposition by the defendant; the jury also may confuse or cumulate the evidence of the
various crimes charge[d].” Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007) (citing Lucero v. Kerby,
133 F.3d 1299, 1314 (10th Cir. 1998)). “Misjoinder is not per se unconstitutional, but rises to that level
if it results in prejudice so great as to deny a defendant his due process right to a fair trial.” Coley v.
Bagley, 706 F.3d 741, 753 (6th Cir. 2013) (citing United States v. Lane, 474 U.S. 438, 446 n.8
(1986)). “[A] risk of undue prejudice exists whenever joinder of counts permits introduction of evidence
of other crimes that would otherwise be inadmissible.” Davis, 475 F.3d at 777. Unless a habeas petitioner

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can show “evidence would have been inadmissible in a hypothetical separate trial . . . his claim fails.”
LaMar v. Houk, 798 F.3d 405, 428 (6th Cir. 2015).7
Petitioner has failed to demonstrate that the evidence of his possession of child pornography
would have been inadmissible at a hypothetical trial on the criminal sexual conduct charges, or vice versa.
At the hearing on the motion to consolidate, the trial court described as “most persuasive” the prosecutor’s
argument that, under MICH. COMP. LAWS § 768.27a, the evidence would be admissible in separate trials.
(Consolidation Hr’g Tr., PageID.197.) The Michigan Court of Appeals concluded “[t]he trial court
properly exercised its discretion in granting the prosecution’s motion to consolidate the charged offenses
where evidence that defendant committed a listed offense against a minor would be admissible in each case
under MCL 768.27a if the cases were tried separately.” Hansen, 2012 WL 2126064 at *4.
The admissibility of the evidence under the statute in hypothetical separate trials is purely
an issue of state law. It is not the province of a federal habeas court to re-examine state-law determinations
on state-law questions. Bradshaw, 546 U.S. at 76; Estelle, 502 U.S. at 68. The decision of the state
courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84
(1983). The Sixth Circuit repeatedly has recognized “‘that 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, 546
U.S. at 76).

7

The LaMar court noted further that even where a habeas petitioner is able to identify the requisite inadmissible
evidence, he must still demonstrate unfair prejudice. LaMar, 798 F.3d at 428.

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Because the evidence from each of the initially separate prosecutions would have been
admissible in the trial of the other, there can be no risk of undue prejudice from the joinder. Petitioner’s
habeas challenge to the consolidation of the two prosecutions has no merit.
In habeas issue XI, Petitioner invites the Court to delve one level deeper into this issue by
contending that the state court’s determination of admissibility in hypothetical separate trials violated his due
process rights. State-court evidentiary rulings, even hypothetical ones, cannot rise to the level of due
process violations unless they offend some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell,
329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide latitude in ruling on
evidentiary matters. Seymour, 224 F.3d at 552. Further, under the AEDPA, the court may not grant relief
if it would have decided the evidentiary question differently. The court may only grant relief if Petitioner
is able to show that the state court's evidentiary ruling was in conflict with a decision reached by the
Supreme Court on a question of law or if the state court decided the evidentiary issue differently than the
Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860
(6th Cir.2000).
Petitioner has not met this difficult standard. There is no clearly established Supreme Court
precedent that holds that a state court violates the Due Process Clause by permitting propensity evidence
in the form of other bad acts evidence. In Estelle, the Supreme Court declined to hold that the admission
of prior acts evidence violated due process. Estelle, 502 U.S. at 75. The Court stated in a footnote that,
because it need not reach the issue, it expressed no opinion as to whether a state law would violate due
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process if it permitted the use of prior crimes evidence to show propensity to commit a charged crime. Id.
at 75 n. 5. While the Supreme Court has addressed whether prior acts testimony is permissible under the
Federal Rules of Evidence, see Old Chief v. United States, 519 U.S. 172 (1997); Huddleston v. United
States, 485 U.S. 681 (1988), it has not explicitly addressed the issue in constitutional terms. The Sixth
Circuit has also found that “[t]here is no clearly established Supreme Court precedent which holds that a
state violates due process by permitting propensity evidence in the form of other bad acts evidence.” Bugh,
329 F.3d at 512. Petitioner’s habeas challenge to the hypothetical evidentiary ruling that supports the
consolidation decision is, therefore, also without merit.
II.

The post-verdict amendment and entry of judgment regarding possession
(habeas issues VI, VII, and VIII)

Petitioner challenges the trial court’s post-verdict amendment of the information to change
the charged offense from violation of MICH. COMP. LAWS § 750.145c(2), regarding making and producing
child sexually abusive material, to violation of MICH. COMP. LAWS § 750.145c(4), regarding possession
of child sexually abusive material, and then the court’s subsequent conviction of Petitioner on the amended
charge. Petitioner attacks this unconventional procedure on three grounds: violation of the Double
Jeopardy Clause (habeas issue VI); violation of the Sixth Amendment right to trial by jury (habeas issue
VII); and as an illegal amendment of the information under state law (habeas issue VIII). To prevail on any
of his challenges, however, Petitioner must show that the state court’s decision was contrary to or an
unreasonable application of clearly established federal law. He has not succeeded in making that showing.
The factual foundation of the charge with respect to child sexually abusive material never
changed. The prosecutor presented evidence that Petitioner had downloaded child sexually abusive movies

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from the internet and copied them from his external hard drive to his laptop hard drive, thereby making or
producing child sexually abusive materials. At the time of trial there was no question that, under People
v. Hill, 269 Mich. App. 505 (Mich. Ct. App. 2006), downloading such material from the internet and
copying it to disc constituted making and producing child sexually abusive material.
In reversing, in part, the court of appeals, the Michigan Supreme Court did not simply sever
the link between “downloading and copying” and “making or producing;” it created a new link:
A defendant who downloads child sexually abusive material from the Internet and burns
the images to a CD–R, when there is no evidence the defendant had a criminal intent to do
something other than possess the CD–R for his own personal use, may not be convicted
of violating MCL 750.145c(2), which makes it a 20–year felony for any person who
“arranges for, produces, makes, or finances” “any child sexually abusive material....”
Rather, that person is properly convicted of knowing possession of child sexually abusive
material in violation of MCL 750.145c(4), a 4–year felony.
Hill, 786 N.W.2d at 614-15. Thus, after Hill, “downloading and copying” might no longer violate MICH.
COMP. LAWS § 750.145c(2), but it definitely violated MICH. COMP. LAWS § 750.145c(4).
After the Michigan Supreme Court issued its opinion in Hill, the trial court permitted the
prosecutor to amend the information to include the possession charge and modify the charge relating to the
use of a computer to provide a lesser penalty. The court then sentenced Petitioner on the amended
charges. The trial court supported this manner of proceeding as follows:
Our Supreme Court has indicated that the courts “‘may direct the entry of judgment for a
lesser included offense when a conviction for a greater offense is reversed on grounds that
affect only the greater offense.’” People v. Williams, 475 Mich. 101, 104, [715 N.W.2d
24, 25 (Mich. 2006)]. Following the decision in Hill, our Court of Appeals overturned
a conviction under MCL 750.145c(2) and directed the trial court to convict and
resentence the defendant under the lesser included offense of MCL 750.145c(4) in a
matter almost identical to this case. See People v. Norman, No. 295833, [2011 WL
2694624] slip op. at 2 (Mich. [Ct.] App. July 12, 2011) (unpublished decision).

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(Op., ECF No. 8-2, PageID.82-83.)8 The trial court relied on People v. Williams, 715 N.W.2d at 24.
The court in Williams, in turn, relied on Rutledge v. United States, 517 U.S. 292 (1996). Williams, 715
N.W.2d at 25.
In Rutledge, the Supreme Court resolved a circuit split as to the proper procedure to
follow when a criminal defendant is charged with a greater and lesser-included offense and convicted of
both. 517 U.S. at 295-96. Most circuits concluded that only one judgment and one sentence was
appropriate; two circuits allowed judgment on both charges but only one sentence; and one circuit allowed
both convictions and two sentences so long as the cumulative punishment did not exceed the maximum
sentence on the greater charge. Id. The Court resolved the split in favor of one judgment and one
sentence; however, that resolution depended in part on its identification of an appropriate remedy if the
greater offense were to be overturned. The Court explained:
[T]he Government argues that Congress must have intended to allow multiple
convictions because doing so would provide a “backup” conviction, preventing a
defendant who later successfully challenges his greater offense from escaping punishment
altogether-even if the basis for the reversal does not affect his conviction under the lesser.
Brief for United States 20-22. We find the argument unpersuasive, for there is no reason
why this pair of greater and lesser offenses should present any novel problem beyond that
posed by any other greater and lesser included offenses, for which the courts have already
developed rules to avoid the perceived danger.
In Tinder v. United States, 345 U.S. 565, 570 (1953), the defendant had been
convicted of theft from a mailbox and improperly sentenced to prison for more than one
year even though the evidence only supported a misdemeanor conviction. Exercising our
“power to do justice as the case requires” pursuant to 28 U.S.C. § 2106, we ordered the
District Court to correct the sentence without vacating the underlying conviction. Relying
on Tinder and the practice in “state courts, including courts governed by statutes virtually

8

Even Petitioner describes the possession offense proscribed in MICH . COMP . LAWS § 750.145c(4) as “a
necessarily lesser included offense” of the making or producing offense proscribed in MICH . COMP . LAWS § 750.145c(2).
(Appellant’s Mich. Ct. of App. Br., ECF No. 8-2, PageID.139.)

-18-

the same as Section 2106,” the Court of Appeals for the District of Columbia Circuit later
decided that its “power to modify erroneous judgments authorizes reduction to a lesser
included offense where the evidence is insufficient to support an element of the [greater]
offense stated in the verdict.” Austin v. United States, 382 F.2d 129, 140, 141-143
(1967).
Consistent with the views expressed by the District of Columbia Circuit, federal
appellate courts appear to have uniformly concluded that they may direct the entry of
judgment for a lesser included offense when a conviction for a greater offense is reversed
on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice ¶
31.03[5], and n. 54 (2d ed.1995); United States v. Ward, 37 F.3d 243, 251 (C.A.6
1994) (after finding insufficient evidence to support CCE count, Court of Appeals vacated
CCE conviction and sentence and remanded for entry of conspiracy conviction, which
District Court had previously vacated as lesser included offense of CCE), cert. denied,
514 U.S. 1030 (1995); United States v. Silvers, 888 F.Supp. 1289, 1306-1309
(D.Md.1995) (reinstating conspiracy conviction previously vacated after granting motion
for new trial on CCE conviction). This Court has noted the use of such a practice with
approval. Morris v. Mathews, 475 U.S. 237, 246-247 (1986) (approving process of
reducing erroneous greater offense to lesser included offense as long as the defendant is
not able to demonstrate that “but for the improper inclusion of the [erroneous] charge, the
result of the proceeding probably would have been different”). See also Jones v. Thomas,
491 U.S. 376, 384-385, n. 3 (1989) (citing Morris ).
Rutledge, 517 U.S. at 305-06 (parallel citations and footnote omitted).
The trial court’s manner of proceeding in Petitioner’s case, therefore, appears to
be wholly consistent with the procedure described by the Supreme Court. It simply cannot be said
that the procedure the trial court followed was contrary to, or an unreasonable application of,
clearly established federal law.
Perhaps in recognition that Rutledge supports the trial court’s decision, Petitioner
turns to the additional requirement identified in Morris v. Matthews, 475 U.S. 237 (1986) (cited
in Rutledge), claiming that “but for the improper inclusion of the [erroneous] charge, the result of
the proceeding would have been different.” Id. at 247. Petitioner cannot succeed in that claim.

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This is not a circumstance where proof of the greater charge involved some element that was not
also part of the lesser charge and, thus, might have prejudiced the jury against Petitioner.
The prosecutor introduced evidence that Petitioner downloaded child sexually
abusive material from the internet and copied it onto his laptop drive. Before Hill, that meant
Petitioner made or produced child sexually abusive material; after Hill, it meant that Petitioner
possessed child sexually abusive material. The evidence required to prove the lesser charge
changed not a whit from that which was required to prove the greater charge pre-Hill. The only
thing that changed was the name of statutory violation and the punishment. Under those
circumstances, Petitioner cannot show that the result would have been any different had the case
proceeded with the lesser charge in the first instance.
The trial court’s entry of judgment and sentencing on the possession charge was
wholly consonant with clearly established federal law. It did not run afoul of the Double Jeopardy
Clause or the Sixth Amendment jury trial guarantee, and it is immaterial whether it violated state
law with regard to the amendment of the information, as such a claim is not cognizable on federal
habeas review. Petitioner’s challenge to his conviction and sentence on the charge of possession
of child sexually abusive material is without merit.
III.

Sufficiency of the evidence regarding knowing possession of child
sexually abusive material (habeas issues III and X)

Petitioner challenged the sufficiency of the evidence on the possession charge in
his direct appeal (habeas issue III) and in his post-conviction motion for relief (habeas issue X).
The subject of both challenges is the same: Petitioner contends there was insufficient evidence that

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his possession of the child sexually abusive material was knowing.

A § 2254 challenge

to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is “whether, after viewing the evidence
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.” This standard of review recognizes the trier
of fact’s responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be
reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02
(1993). Rather, the habeas court is required to examine the evidence supporting the conviction,
in the light most favorable to the prosecution, with specific reference to the elements of the crime
as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194,
1196-97 (6th Cir. 1988).
The Jackson v. Virginia standard “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both
the Jackson standard and AEDPA apply to Petitioner’s claims, “‘the law commands deference
at two levels in this case: First, deference should be given to the trier-of-fact’s verdict, as
contemplated by Jackson; second, deference should be given to the Michigan [trial court’s]
consideration of the trier-of-fact’s verdict, as dictated by AEDPA.’” Davis v. Lafler, 658 F.3d
525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir.
2008)). This standard erects “a nearly insurmountable hurdle” for petitioners who seek habeas
-21-

relief on sufficiency-of-the-evidence grounds. Id. at 534 (quoting United States v. Oros, 578
F.3d 703, 710 (7th Cir. 2009)).
The Michigan Court of Appeal resolved Petitioner’s sufficiency challenge on direct
appeal as follows:
Defendant next argues that insufficient evidence existed to prove that he knowingly
possessed child sexually abusive material, MICH. COMP. LAWS § 750.145c(4). We
review de novo a challenge on appeal to the sufficiency of the evidence, examining the
evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in
its favor, and determining whether a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt. People v. Ericksen, 793
N.W.2d 120 (2010). Our Supreme Court has held that “the term ‘possesses’ in the
phrase ‘[a] person who knowingly possesses any child sexually abusive material’ in MCL
750.145c(4) includes both actual and constructive possession.” People v. Flick, 790
N.W.2d 295, 298 (2010). “[A] defendant constructively possesses ‘any child sexually
abusive material’ when he knowingly has the power and the intention at a given time to
exercise dominion or control over the contraband either directly or through another person
or persons.” Id. at 304.
Here, the prosecution presented evidence that defendant downloaded 11
child-pornography movies to his computer and another 16 on a portable storage hard
drive. The jury viewed two of these movies. The evidence in this case supports a finding
that defendant constructively possessed the child sexually abusive material where he
intentionally searched for child-pornography movies, downloaded them to his computer,
and saved them in hidden files. The evidence also supports a finding that defendant had
the power and the intent to exercise dominion or control over the child-pornography
movies by saving them to a hidden folder on his internal hard drive and also onto a portable
external hard drive. See id. Viewing the evidence in a light most favorable to the
prosecution and resolving all evidentiary conflicts in its favor, a rational trier of fact could
have found beyond a reasonable doubt that defendant knowingly possessed child sexually
abusive material. See Ericksen, 793 N.W.2d at 122. Defendant emphasizes that the
prosecution only proved that he viewed one adult-pornography movie. However, whether
defendant viewed the child-pornography movies is not a relevant inquiry with respect to
whether he knowingly possessed child sexually abusive material.

-22-

Hansen, 2012 WL 2126064 at *2-3 (parallel citations omitted).9
This Court is bound by the Michigan Court of Appeals interpretation of state law.
The Sixth Circuit repeatedly has recognized “‘that 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, 722 F.3d at 746 n.6 (quoting Bradshaw, 546 U.S. at 76). Thus,
when the Michigan Court of Appeals declares what must be shown to establish “knowing”
possession, this Court must accept that declaration. To the extent Petitioner’s habeas challenge
depends on the opposite conclusion, the challenge necessarily fails.
That is the case here. Petitioner’s challenge is founded on the prosecutor’s failure
to provide evidence that he viewed the child-pornography movies. Petitioner contends that absent
such evidence the prosecutor cannot establish knowing possession. The court of appeals says that
Petitioner is wrong. As a matter of state law regarding knowing possession, whether Petitioner
viewed the movies is irrelevant. Hansen, 2012 WL 2126064 at *3. This Court is bound by that
statement of state law. Petitioner’s sufficiency challenge, therefore, necessarily fails.
Moving beyond the specific insufficiency alleged by Petitioner, the factual
determinations of the court of appeals with respect to Petitioner’s knowing possession of the child
sexually abusive material are patently reasonable. Moreover, its application of clearly established
federal law, Jackson, was reasonable. On the record before the Court, a rational trier of fact

9

Although the Michigan Court of Appeals cited a state court decision, Ericksen, the standard is the Jackson
standard. The court in Ericksen relied upon People v. Terry, 569 N.W.2d 641, 644 (Mich. Ct. App. 1997) for a statement
of the appropriate test. The court in Terry, in turn, relied upon People v. Wolfe, 489 N.W.2d 748, 750-51 (Mich. 1992).
The court in Wolfe relied upon Jackson, 443 U.S. at 307.

-23-

could have found beyond a reasonable doubt that Petitioner knowingly possessed the child sexually
abusive material. Petitioner is not entitled to relief on his sufficiency claim.
IV.

Challenges to the admission of evidence

The extraordinary remedy of habeas corpus lies only for a violation of the
Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle, 502 U.S. 62, an
inquiry whether evidence was properly admitted or improperly excluded under state law “is no part
of the federal court’s habeas review of a state conviction [for] it is not the province of a federal
habeas court to re-examine state-court determinations on state-law questions.” Id. at 67-68.
Rather, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Id. at 68. State court evidentiary
rulings cannot rise to the level of due process violations unless they offend some principle of justice
so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Seymour, 224 F.3d at 552 (quotation omitted); accord Coleman, 268 F.3d at 439; Bugh, 329
F.3d at 512.

The Sixth Circuit has applied the following standard in cases under the

AEDPA:
Habeas petitioners are not entitled to relief unless an error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A
petitioner will prevail where “a federal judge in a habeas proceeding is in grave doubt
about whether a trial error of federal law” substantially affected a jury’s verdict. O’Neal
v. McAninch, 513 U.S. 432, 436 (1995). However, we will grant federal habeas corpus
relief only where a violation of a state’s evidentiary rule results in the denial of fundamental
fairness, and therefore, a violation of due process. Cooper v. Sowders, 837 F.2d 284,
287 (6th Cir. 1988). “The standard in determining whether the admission of prejudicial
evidence constitutes a denial of fundamental fairness is whether the evidence is ‘material
in the sense of a crucial, critical highly significant factor.’” Leverett v. Spears, 877 F2d
-24-

921, 925 (11th Cir. 1989) (quoting Redman v. Dugger, 866 F.2d 387, 390 (11th Cir.
1989)).
Brown v. O’Dea, 187 F.3d 572, 578 (6th Cir. 1999). Petitioner has not met this difficult standard
with respect to any of the evidentiary rulings that he challenges.
A.

Ashlee’s testimony regarding Abigail’s report of
Petitioner’s masturbation

Petitioner complains that Ashlee Norton testified about her conversation with
Abigail as follows:
And I asked her, like, what goes on or what have you seen, or whatever, and she started
tellin’ me about a time where she saw him playin’ with himself and watching a movie. I
asked her what she was doing, and she said that she was laying down. I asked her if he
knew that she was in the room, and she said, “Yes.” I asked her what was she doin’, and
she said she was supposed to be sleeping. So I said that, you know, did he know that you
were sleeping–did he know that you were awake, and she said, “No.” She said he was
playin with himself . . . .
(Trial Tr. II, ECF No. 8-2, PageID.286.) Petitioner contends that the evidence was irrelevant,
prejudicial, and inflammatory; thus, a new trial is required. (Def.-Appellant’s Br. on Appeal,
ECF No. 8-2, PageID.108-09.)
The Michigan Court of Appeals rejected Petitioner’s challenge to the admission
of this testimony:
Here, even assuming that the admission of this testimony was plain error, we find that the
error would not warrant reversal because defendant has not established that its admission
affected the outcome of his trial. See People v. Carines, 597 NW2d 130 (1999).
Evidence that defendant was masturbating at night while watching an unspecified movie at
a time when he believed the victim was sleeping was not so unfairly prejudicial as to move
the jury to convict defendant for improper reasons. Furthermore, the testimony of the
victim, Noorman, the examining physician at the Children’s Assessment Center, the
detective who executed the search warrant on defendant’s home, the digital media expert,

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and the remaining testimony of the mother's friend was strong evidence that defendant
committed the crimes charged.
Hansen, 2012 WL 2126064 at *2 (parallel citation omitted). The court of appeals evaluation of
the issue was consistent with, and not contrary to, clearly established federal law. Brecht requires
inquiry into whether the error, if indeed there is error, “‘had substantial and injurious effect or
influence in determining the jury’s verdict.’” Brecht, 507 U.S. at 623. That is the inquiry the court
of appeals pursued. In light of the “strong evidence that [Petitioner] committed the crimes
charged,” as detailed by the court of appeals, Hansen, 2012 WL 2126064 at *2, the court’s
determination that the reference did not affect the outcome is eminently reasonable. Petitioner has
failed to show that the fleeting reference to masturbation affected the outcome of his trial;
accordingly, his challenge relating to this evidence has no merit.
B.

The testimony of the physician’s assistant that “something
had happened” to Abigail and that Abigail and Amanda
might not be safe

Petitioner next contends that he was unfairly prejudiced by the erroneous admission
of testimony from the physician’s assistant. Petitioner complains first that the physician’s assistant’s
testimony that “something had happened” was based solely on Abigail’s statement and demeanor
and, therefore, was inadmissible as testimony of subjective opinion with respect to Abigail’s
credibility. The court of appeals rejected the premise of Petitioner’s argument:
A review of the record reveals that [the physician’s assistant] testified to the finding of
protein and blood in the victim’s urine, which was consistent with a bladder infection, and
that protein in the urine can also be consistent with semen. On cross-examination,
Noorman explained that her testimony was based on the victim’s physical examination in
conjunction with the victim’s statements. Noorman’s opinion that “something had
happened” to the victim was not based solely on the victim’s statements to her; rather, it
was also on the basis of her expertise as a physician’s assistant and observations during
-26-

her physical examination of the victim—particularly her observation that the victim had a
bladder infection for the first time in her life. In sum, there is no plain error because the
testimony was admissible.
Hansen, 2012 WL 2126064 at *1 (footnote omitted). This Court must presume that the court of
appeals’ factual finding with regard to the basis for the physician’s assistant’s is correct. 28 U.S.C.
§ 2254(e)(1); Sumner, 449 U.S. at 546; Jago, 888 F.2d at 407 n.4; Lancaster, 324 F.3d at 429;
Bailey, 271 F.3d at 656. Petitioner can overcome that presumption with clear and convincing
evidence. He has not done so and, on this record, he cannot. On cross-examination the
physician’s assistant clearly explained that her conclusion was based on more than Abigail’s
statements. (Trial Tr. III, PageID.333.) In addition, this Court is bound by the court of appeals
conclusion that the testimony was admissible as a matter of state law. Stumpf, 722 F.3d at 746
n.6. Thus, there is no error upon which to predicate the Brecht inquiry.
To succeed on his challenge, therefore, Petitioner must show that the state court's
evidentiary ruling was in conflict with a decision reached by the Supreme Court on a question of
law or that the state court decided the evidentiary issue differently than the Supreme Court did on
a set of materially indistinguishable facts. Sanders, 221 F.3d at 860. Petitioner has not even
attempted to make that showing. Accordingly, his challenge is without merit.
Petitioner also complains that the physician’s assistant improperly testified that she
was concerned for the safety of Abigail and Amanda Hansen if they returned home and Petitioner
were there. Petitioner argues that the testimony was inadmissible. The court of appeals agreed.
Hansen, 2012 WL 2126064 at *1 n.1. Nonetheless, the court of appeals refused to act upon the
error because Petitioner had, in their opinion, abandoned it. Id. Looking past Petitioner’s
-27-

procedural default,10 Petitioner cannot succeed on his habeas challenge because he has not shown
that the fleeting reference to Petitioner’s dangerousness “‘had [a] substantial and injurious effect
or influence in determining the jury’s verdict.’” Brecht, 507 U.S. at 623.

C.

Improper “civic duty” testimony

Petitioner contends that Detective Sergeant Macarthur appealed to the jurors’
sense of “civic duty,” essentially asking the jury to look beyond the particulars of Petitioner’s case
to the problem of child pornography generally, when she testified about the “Vicky” series of child
pornography movies. When the prosecutor asked Detective Sergeant Macarthur about the title
“Vicky” in the list of movies on Petitioner’s computer and external hard drive, Macarther
responded:
Yes, “Vicky” is what we call a child porn series based on the young girl’s name. She’s a
real person that was later found by the police. They found her offender, and they had a
criminal case, and so they proved basically that she was actually under age during the
taping of the sex videos.
(Trial Tr. III, PageID.315.)
Although arguments and testimony “calculated to incite the passions and prejudices
of the jurors [or] appeals to the jury to act as the community conscience” may be improper, they
“are not per se impermissible.” United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir.
2001) (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)) (internal quotes

10

See note 5, infra.

-28-

omitted). This brief explanation of an otherwise uninformative video file title does not, on its face,
appear to be calculated to incite passion, nor does it seem to invite the jury to address the child
pornography generally instead of the specifics of Petitioner’s case. That was the conclusion
reached by the Michigan Court of Appeals:
Defendant's contention that the testimony was “civic duty testimony” is meritless; a review
of the record reveals that the description was made in the context of explaining some
acronyms and titles used on the list of downloads from defendant's computer. Moreover,
the testimony was relevant because the fact that a “Vicky” child-pornography movie was
downloaded to defendant’s computer had a tendency to make the existence of defendant’s
possession of child sexually abusive material more probable than it would have been
without the testimony. See MRE 401. Thus, there is no plain error because the testimony
was admissible.
Hansen, 2012 WL 2126064 at *2. The court of appeals’ binding determination that, as a matter
of state law, the testimony was directly relevant to Petitioner’s case, precludes any argument that
the testimony was elicited to improperly incite the passions of the jury. Petitioner has failed to show
that the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme
Court on a question of law or that the state court decided the evidentiary issue differently than the
Supreme Court did on a set of materially indistinguishable facts. Sanders, 221 F.3d at 860.
Therefore, his challenge is without merit.
V.

The polygraph

Michigan statute requires that a polygraph examination shall be given to a defendant
who allegedly has committed, among other offenses, first-degree criminal sexual conduct, if the
defendant requests it. MICH. COMP. LAWS § 776.21(5). Petitioner indicates he requested such
an examination but never received it. He claims that deficiency prejudiced him in negotiating a plea,

-29-

trial preparation, and sentencing. (Def.-Appellant’s Br. on Appeal, ECF No. 8-2, PageID.122.)
The Michigan Court of Appeals was not convinced:
In this case, the record reveals that defendant wrote a letter to his defense counsel insisting
that he be given a polygraph examination, and he sent a copy of the letter to the trial court
judge before trial. Defendant has not established, however, that his failure to receive the
examination affected the outcome of the lower court proceedings. See [People v.
Carines, 597 N.W.2d 130 (Mich. 1999)]. It is speculative whether he would have
passed a polygraph examination if one had been administered. And, even if he had passed
a polygraph examination, the results would have been inadmissible at trial. People v.
Phillips, 666 N.W.2d 657 (Mich. 2003). Furthermore, defendant has also not shown that
a “passed polygraph” would have affected the prosecutor’s plea offer, the prosecutor’s
decision to proceed to trial, or his sentence. Accordingly, defendant is not entitled to relief
on this issue.
Hansen, 2012 WL 2126064 at *3 (parallel citations omitted).
Petitioner claims entitlement to the polygraph examination under state law. Habeas
relief is not available for violations of state law. Petitioner offers no authority that holds he has a
federal constitutional right to the polygraph examination by virtue of the state law right or otherwise.
Absent such authority, specifically in the form of Supreme Court precedent, there is no clearly
established federal law that the state court’s determination could be inconsistent with or contrary
to. See e.g. Carey v. Musladin, 549 U.S. 70, 77 (2006).
If Petitioner had taken the test it could not have had a constitutionally significant
evidentiary impact on the jury’s verdict because the test results would not be admissible as
evidence in criminal cases in Michigan. People v. Phillips, 666 N.W.2d 657, 661 (Mich. 2003)
(citing People v. Ray, 430 N.W.2d 626, 628 (Mich. 1988); People v. Barbara, 255 N.W.2d
171, 175 (Mich. 1977)). The court of appeals concluded that any other potential benefits were
wholly speculative. That factual finding is presumed correct and Petitioner has offered no evidence,
-30-

much less clear and convincing evidence, to overcome the presumption. Petitioner’s habeas claim
regarding the polygraph examination is without merit.
VI.

Ineffective assistance of trial and appellate counsel

Petitioner contends that his trial counsel was ineffective for failing to object to the
errors he has raised in his habeas petition and for inadequately investigating and preparing
Petitioner’s defense. His appellate counsel was similarly ineffective for failing to raise the errors
he raised in his post-conviction motion.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s
performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome.
A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The defendant bears the burden of overcoming the presumption that the challenged action might
be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955));
see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic
decisions were hard to attack).
The court must determine whether, in light of the circumstances as they existed at the time
of counsel’s actions, “the identified acts or omissions were outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel’s performance
-31-

was outside that range, the defendant is not entitled to relief if counsel’s error had no effect on the judgment.
Id. at 691. “When deciding ineffective-assistance claims, courts need not address both components of the
inquiry ‘if the defendant makes an insufficient showing on one.’” Campbell v. United States, 364 F.3d
727, 730 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 697). “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” Strickland, 466 U.S. at 697.
The Michigan Court of Appeals rejected each claim of ineffective assistance that Petitioner
raised on his direct appeal either because the objection not made was futile or because no prejudice
resulted. Hansen, 2012 WL 2126064 at *3-4. As set forth above, as to each of the direct appeal issues,
the court of appeals determination has ample support. “Omitting meritless arguments is neither professionally
unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Thus, Petitioner’s
challenges to trial counsel assistance that are premised on his meritless statements of Michigan law with
respect to joinder, knowing possession, admissibility issues, and the amendment of the information, cannot
support an ineffective assistance claim.
The trial court rejected Petitioner’s Rule 6.500 motion claims of ineffective assistance of trial
counsel. The trial court stated:
Hansen fails to convince the Court that actual prejudice resulted from the alleged ineffective
assistance. First, defense counsel was not ineffective for failing to object to the amended
information charging Hansen with possession of child sexually abusive material because
such an amendment was proper. Second, the remaining claims for ineffective assistance
relate to trial strategy, and the Court cannot “substitute [its] judgment for that of counsel
on matters of trial strategy[.]” See People v. Unger, 278 Mich App 210, 242-243
(2008).

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(Op. & Order, ECF No. 8-2, PageID.84.) With respect to the amended information, for the reasons set
forth above, the trial court’s determination that an objection would have been futile is patently reasonable.
Moreover, the trial court’s presumptively correct determination that Petitioner’s other new complaints relate
to trial strategy, effectively ends the habeas analysis. Disagreement by a defendant with tactics and/or
strategy will not support a claim of ineffective assistance. Strickland, 466 U.S. at 689. Matters of trial
strategy, such as determinations regarding which witnesses to present and what questions to ask, are
presumed correct and are generally not evaluated in hindsight or second-guessed upon habeas review.
McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). Petitioner’s claim that his trial counsel
rendered constitutionally ineffective assistance is without merit.
Petitioner’s claim with respect to his appellate counsel fares no better. The Sixth Circuit has
held that “‘appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.’” Willis v.
Smith, 351 F.3d 741, 745 (6th Cir. 2003) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)). See also Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010). As set forth fully above, the
issues appellate counsel failed to raise were meritless.
Petitioner has failed to demonstrate that the state court’s resolution of his ineffective
assistance claims was contrary to, or an unreasonably application of, clearly established federal law.
Accordingly, his claims of ineffective assistance are properly dismissed.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application pursuant
to Rule 4 because it fails to raise a meritorious federal claim.
Certificate of Appealability
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Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s dismissal of Petitioner’s
action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its
face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate,
thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already
determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d
10 (1st Cir. 1991) (it is “somewhat anomalous” for the court to summarily dismiss under Rule 4 and grant
a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court
summarily dismissed under Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865
F.2d 44, 46 (2d Cir. 1989) (it was “intrinsically contradictory” to grant a certificate when habeas action
does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983)
(issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at 467.
Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel,
529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of
Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. “A petitioner satisfies this standard by
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demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court
may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying
merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of
appealability.

A Judgment and Order consistent with this Opinion will be entered.

Dated:

September 27, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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