Hermenitt #589392 v. Palmer

Filing 7

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)

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

TIMOTHY RAY HERMENITT,
Petitioner,
v.

Case No. 1:14-cv-127
Honorable Robert J. Jonker

CARMEN PALMER,
Respondent.
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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 Timothy Ray Hermenitt presently is incarcerated with the Michigan
Department of Corrections at the Michigan Reformatory. Following a jury trial in Kent County
Circuit Court, Petitioner was convicted of first-degree criminal sexual conduct, MICH . COMP . LAWS
§ 750.520b(1)(f), and sentenced as a fourth habitual offender to a prison term of twenty-two to fifty
years.
Petitioner appealed his judgment of conviction and sentence to the Michigan Court
of Appeals which affirmed the judgment in a per curiam opinion entered on June 18, 2013.
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, which was denied
on November 25, 2013. Petitioner timely filed the instant action raising the same ground for relief
he raised in the courts of appeal:
THE TRIAL COURT’S ALLOWANCE OF “OTHER ACTS” EVIDENCE
FROM AN UNRELATED AND UNCHARGED INCIDENT ONE-YEAR
EARLIER WAS AN ABUSE OF DISCRETION WHICH DENIED MR.
HERMENITT HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
UNDER THE SIXTH AMENDMENT AND DUE PROCESS UNDER THE
FOURTEENTHT AMENDMENT, AND CONST. 1963, ART. 1, § 17
AND 20 AND VIOLATED MRE 403 AND MRE 404(b).
(Br. in Support of Pet., docket #2, Page ID#11.)
Discussion
The Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT . 1214
(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
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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).
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. Bailey, 271 F.3d at 655; Harris v. Stovall, 212 F.3d 940, 943 (6th
Cir. 2000). “Yet, while the principles of ‘clearly established law’ are to be determined solely by
resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing
the reasonableness of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493
(6th Cir. 2007). 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.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Miller v. Stovall,
No. 12-2171, slip op. at 3 (6th Cir. Feb. 11, 2014) (citing Greene, 132 S. Ct. at 44).
A decision of the state court may only be overturned if (1) it applies a rule that
contradicts the governing law set forth by the Supreme Court, (2) it confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
different result; (3) it identifies the correct governing legal rule from the Supreme Court precedent
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but unreasonably applies it to the fact of the case; or (4) it either unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply or unreasonably
refuses to extend a principle to a context where it should apply. Bailey, 271 F.3d at 655 (citing
Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694; Lancaster v. Adams, 324 F.3d 423, 429
(6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable” “simply
because that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411;
accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court’s application of clearly
established federal law is “objectively unreasonable.” Id. at 410.
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, 324 F.3d at 429; 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). Applying the foregoing standards under the AEDPA, I find that Petitioner is not entitled to
relief.
A.

Admission of Other Acts Evidence

Petitioner contends that the trial court violated his Sixth Amendment right to a fair
trial and his Fourteenth Amendment right to due process when it admitted evidence regarding a July,
2010, uncharged sexual misconduct offense in which Petitioner was the alleged perpetrator. The trial
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court admitted the evidence under MICH . R. EVID . 404(b) after concluding that the evidence
“demonstrates that [Petitioner] operates under a similar plan or scheme in order to achieve ‘sexual
gratification’ with ‘unwilling participants.’” People v. Hermenitt, No. 309560, slip op. at 2 (Mich.
Ct. App. June 18, 2013). Petitioner asserts that the trial court erred by admitting the evidence
because it was highly prejudicial propensity evidence and the trial court’s error in admitting the
evidence was not harmless.
The Michigan Court of Appeals rejected this claim as follows:
We review for an abuse of discretion the trial court's decision to admit
evidence. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003).
We will not reverse a conviction because of a trial court’s evidentiary ruling
unless “it is more probable than not that the error was outcome
determinative.” People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999).
“At its essence, MRE 404(b) is a rule of inclusion, allowing relevant other
acts evidence as long as it is not being admitted solely to demonstrate
criminal propensity.” People v Martzke, 251 Mich App 282, 289; 651 NW2d
490 (2002). MRE 404(b)(1) provides that
[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
scheme, plan, or system in doing an act, knowledge,
identity, or absence of mistake or accident when the
same is material, whether such other crimes, wrongs,
or acts are contemporaneous with, or prior or
subsequent to the conduct at issue in the case.
This Court uses the test articulated in People v VanderVliet, 444 Mich 52;
508 NW2d 114 (1993), amended 445 Mich 1205 (1994), to determine
whether the other acts evidence was admissible.
First, that the evidence be offered for a proper purpose under
Rule 404(b); second, that it be relevant under Rule 402 as
enforced through Rule 104(b); third, that the probative value
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of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request,
provide a limiting instruction to the jury. [Id. at 55.]
Regarding whether the evidence was admitted for a proper purpose, “[i]n a
sexual assault prosecution, evidence of prior acts is admissible under MRE
404(b) if it ‘tend[s] to show a plan or scheme to orchestrate the events
surrounding the rape of complainant so that she could not show nonconsent.’”
People v Gibson, 219 Mich App 530, 533, 557 NW2d 141 (1996), quoting
People v Oliphant, 399 Mich 472, 488, 250 NW2d 443 (1976). Thus, we
conclude that the evidence in this case was offered for a proper purpose
because the evidence was offered to show that defendant employed a
common plan or scheme to orchestrate events surrounding the sexual assault
that would negate the victim’s claim of nonconsent.
In this case, defendant isolated both of his victims, assaulted them in
scenarios where it would appear they might have consented, and used a
similar defense to both of their claims of sexual assault. Id. For instance,
with regard to the assault alleged in the other acts evidence, the prosecution
presented evidence that defendant assaulted his victim after she invited him
into her bedroom at 3:00 a.m. to talk. As for defendant’s defense in that case,
he told police officers that his victim initially consented to sexual contact, but
later changed her mind and became upset. Defendant employed a similar
method in the case at bar by taking advantage of another late-night scenario
where it would appear the victim might have consented to sexual contact, and
by claiming a similar defense. Specifically, the victim in the case at bar
testified that she shared a drink with defendant late at night in her home
before the assault occurred. Additionally, defendant asserted as his defense
that the victim in the case at bar initially consented to his contact, but
subsequently changed her mind and became upset. Thus, defendant took
advantage of similar situations where it appeared that his victims might have
consented to sexual contact, and then used the same defense to explain their
subsequent claims against him. This demonstrates that defendant had a
common plan or scheme for selecting the victim and in asserting a defense
to her subsequent claims of nonconsensual contact.
We also find, under the second step in the VanderVliet analysis, that the other
acts evidence was relevant because “[t]he fact that defendant employed a
similar method and defense in a prior case is probative of whether he
employed the same means in anticipation of using the same defense if
accused [in the case at bar].” Gibson, 219 Mich App at 533. Here, because
defendant previously employed a similar method of selecting his victim and
a similar defense to claims of nonconsensual contact, the other acts evidence
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was probative of whether he employed the method and defense in the case at
bar to negate the victim’s claims that she did not consent. Id. Furthermore,
the evidence was particularly relevant because it responded to defendant’s
theory that the victim consented. See People v Mardlin, 487 Mich 609, 624;
790 NW2d 607 (2010) (“The defense theory in a case in part governs what
evidence is logically relevant.”).
Regarding the remaining prongs of the VanderVliet test, the other acts
evidence was admissible because the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence under MRE 403,
and because the trial court instructed the jury regarding how it was to
consider the evidence. “Unfair prejudice exists when there is a tendency that
evidence with little probative value will be given too much weight by the
jury.” People v McGhee, 268 Mich App 600, 614; 709 NW2d 595 (2005).
Here, the probative value of the other acts evidence was not substantially
outweighed by the danger of unfair prejudice because the other acts evidence
was probative of defendant’s common plan or scheme of taking advantage of
a scenario where it would be difficult for his victims to prove that they did
not consent. Gibson, 219 Mich App at 533. The evidence was also highly
probative because it affected the victim’s credibility. See People v King, 297
Mich App 465, 476; 824 NW2d 258 (2012). Moreover, the evidence was not
unfairly prejudicial because the trial court instructed the jury that it could
only consider the evidence for purposes of deciding whether defendant
employed a common plan or scheme, and not for propensity purposes. “[A]
limiting instruction . . . that cautions the jury not to infer that a defendant had
a bad character and acted in accordance with that character can protect the
defendant’s right to a fair trial.” People v Magyar, 250 Mich App 408, 416;
648 NW2d 215 (2002). “It is well established that jurors are presumed to
follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d
229 (1998). Therefore, the trial court did not abuse its discretion by
admitting evidence of defendant’s prior bad acts.
Moreover, we find that even if the trial court abused its discretion when it
admitted the evidence, defendant is not entitled to relief because he cannot
demonstrate that it was more probable than not that the admission of the other
acts evidence was outcome determinative. The victim testified that defendant
sexually assaulted her, and her testimony was all that was necessary to
support defendant’s conviction. MCL 750.520h; People v Lemmon, 456
Mich 625, 642–643 n. 22; 576 NW2d 129 (1998). Further, her testimony was
largely unrebutted. Additionally, there was evidence to corroborate portions
of the victim’s testimony. Specifically, there was testimony that one of the
injuries suffered by the victim was consistent with a nonconsensual sexual
encounter.
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People v. Hermenitt, slip op. at 2-4.
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 v. McGuire, 502 U.S.
62 (1991), 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 6768. 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 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
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evidence. In Estelle v. McGuire, 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
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 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.
Because there was no constitutional violation in the admission of the evidence at issue
here, the state court decision was “far from” an unreasonable determination of the facts in light of
the evidence presented. Clark v. O’Dea, 257 F.3d 498, 503 (6th Cir. 2001); see also Bugh, 329 F.3d
at 512.
Furthermore, evidence that Petitioner was involved in a similar incident did not
render his trial fundamentally unfair because the jury could have disregarded the evidence of
Petitioner’s prior acts and, nonetheless, found him guilty. As the state court found, even if the trial
court erred in admitting the prior acts evidence, the evidence was not “outcome determinative.”
Hermenitt, slip op at 4. The jury could have found Petitioner guilty based solely on the victim’s
testimony. See MICH . COMP . LAWS §750.520h. Moreover, the victim’s testimony was “largely
unrebutted” and there was evidence to corroborate portions of her testimony, including testimony
that one of her injuries was consistent with a nonconsensual sexual encounter. Further, the trial court
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gave the jury a limiting instruction informing the jury “that it could only consider the evidence for
purposes of deciding whether defendant employed a common plan or scheme, and not for propensity
purposes.” Hermenitt, slip op at 4. “[J]uries are presumed to follow their instructions.” Richardson
v. Marsh, 481 U.S. 200, 211 (1987). The admission of “other acts” evidence was not fundamentally
unfair and did not deprive Petitioner of a fair trial. Accordingly, the state appellate court’s
conclusion that Petitioner’s claim lacked merit did not result in an unreasonable determination of
the facts or in a decision that was contrary to Supreme Court precedent.
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
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)
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(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 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.

/s/Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
Dated: March 25, 2014

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