RAY KENT, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Brian Smith is incarcerated with the Michigan Department of Corrections at the Parnall Correctional Facility in Jackson, Michigan. Following a jury trial in the Eaton County Circuit Court, Petitioner was convicted of two counts of first-degree criminal sexual conduct (CSC-I), Mich. Comp. Laws § 750.520b, and two counts of second-degree criminal sexual conduct (CSC-II), Mich. Comp. Laws § 750.520c. On November 7, 2012, the court sentenced Petitioner to concurrent prison terms of 10 to 30 years for each CSC-I conviction and 5 to 15 years for each CSC-II conviction.
On January 11, 2017, the Court received Petitioner's timely habeas corpus petition. The petition raises seven grounds for relief, paraphrased as follows:
(Pet., ECF No. 1, PageID.6-15.) Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied because they are procedurally defaulted or otherwise without merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are without merit. Accordingly, I recommend that the petition be denied.
The Michigan Court of Appeals provided a concise summary of the facts underlying Petitioner's convictions:
(Mich. Ct. App. Op., ECF No. 8-10, PageID.1155.) Victim KR was nine when Petitioner, KR's mother's live-in boyfriend, first accosted her. (Trial Tr. II, ECF No. 8-5, PageID.693.) She was sitting in a recliner watching television. (Id.) Petitioner began rubbing her leg. (Id., PageID.697-698.) He worked his way up and slipped his hand between her shorts and underwear. (Id.) He then began to rub her vagina with his fingers. (Id.) Petitioner did the same thing again about a year later. (Id., PageID701-703.) Those two instances formed the basis for Petitioner's CSC-II charges.
KR's sister EM testified that one night, when she was twelve, she was sleeping on the family room floor. (Id., PageID.752-765.) Petitioner approached her, fondled her breasts, and eventually penetrated her vagina with his finger. (Id.) Petitioner's digital penetration of EM's vagina forms the basis for one of the CSC-I charges.
LT testified that she and Petitioner, her mother's live-in boyfriend, were sitting in a chair together watching television when Petitioner began to rub her shoulders and back. (Id., PageID.852-863.) Eventually Petitioner put his hands in LT's pants and began "feeling around." (Id., PageID.856.) He used a finger to penetrate her vagina. (Id., PageID.856, 862-863.) Petitioner's digital penetration of LT's vagina forms the basis for the other CSC-I charge.
In addition to hearing testimony from the victims, the jurors heard testimony from the victims' mothers, LT's sister, LT's friend, Dr. Stephen Guertin (an expert in pediatric critical care and child abuse), and police officers who had participated in the investigations of the sexual abuse allegations. Petitioner did not testify.
The jury deliberated for three days before returning their verdicts. During deliberations there were frequent communications between the jury and the court. Those communications were memorialized in a note or on the record. The evening before the jury returned its verdicts, the trial judge received a telephone call from a trusted source who informed him that the prosecutor intended to file a grievance with the Judicial Tenure Commission because of the judge's ex parte communications with the jury. The prosecutor disclaimed any such intention or any knowledge of ex parte communications between the judge and the jury. None of the parties were aware of any ex parte communication that might serve as grounds for such a grievance. The trial judge mentioned one incident where he communicated with a juror outside the presence of counsel:
(Trial Tr. V, ECF No. 8-8, PageID.1118.)
Petitioner, with the assistance of counsel, directly appealed his convictions to the Michigan Court of Appeals raising four issues:
(Pet'r's Appeal Br., ECF No. 8-10, PageID.1237.) By per curiam opinion issued March 25, 2014, the Michigan Court of Appeals rejected Petitioner's appellate issues.
Petitioner raised the same four issues in his pro per application for leave to appeal to the Michigan Supreme Court. He also raised a new issue regarding the jury instructions. (Pet'r's Appl. for Leave to Appeal, ECF No. 8-11, PageID.1323-1325.) The Michigan Supreme Court denied leave by order entered September 5, 2014.
Petitioner then returned to the trial court and filed a motion for relief from judgment. Petitioner raised four issues:
(Br. in Supp. of Mot., ECF No. 8-12, PageID.1355-1356.) By opinion and order dated July 13, 2015, the Eaton County Circuit Court denied Petitioner's motion. (Op. and Order, ECF No. 8-13.) With regard to the first two issues (issues number 5 and 6 above), the court denied the motion because Petitioner had raised the issues on direct appeal and the issues had been decided against him. (Id., PageID.1435.)
Because Petitioner intended his "ex parte communication" issue (issue 5 above) to address a different communication than that addressed on direct appeal, the trial court reviewed and rejected Petitioner's argument as factually unfounded. (Id., PageID.1435-1436.) The trial court also rejected Petitioner's ineffective assistance of counsel claims because the issues Petitioner argued that counsel had failed to raise were meritless. (Id., PageID.1426-1437.)
Petitioner sought leave to appeal the trial court's decision in the Michigan Court of Appeals and then the Michigan Supreme Court. Those courts denied leave by orders dated February 24, 2016, and November 30, 2016, respectively. (Mich. Ct. App. Order, ECF No. 8-14, PageID.1440; Mich. Order, ECF No. 8-15, PageID.1500.) Petitioner then filed the instant petition.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 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). 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 difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015) (internal quotation 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 holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-382; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). 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, 565 U.S. 34 (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, 565 U.S. at 38).
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, 135 S. Ct at 1376 (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 enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1705 (2014) (internal quotations 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).
Petitioner's challenges regarding the weight and sufficiency of the evidence against him are premised upon inconsistencies in the stories each victim told over time. The Michigan Court of Appeals found Petitioner's argument unconvincing:
(Mich. Ct. App. Op., ECF No. 8-10, PageID.1156.)
The assertion that the verdict was against the great weight of the evidence does not state a ground for habeas corpus relief. The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). The Michigan courts apply the great-weightof-the-evidence standard to determine whether to grant a new trial. See People v. Lemmon, 576 N.W.2d 129, 137 (Mich. 1998). This question is distinct from the due-process guarantee offended by insufficient evidence and "does not implicate issues of a constitutional magnitude." Id. at 133 n. 8. As a consequence, a "weight of the evidence claim" is purely a matter of state law and is not cognizable on habeas review. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("[I]t is only noncompliance with federal law that renders a state's criminal judgment susceptible to a collateral attack in the federal courts."); Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); accord Chatman v. Warden Ross Corr. Inst., No. 2:10-cv-1091, 2013 WL 1663919, at *10 (S.D. Ohio Mar. 26, 2013); Underwood v. Berghuis, No. 1:08-cv-642, 2011 WL 693 8471, at *15 (W.D. Mich. Aug. 8, 2011) ("Since a `weight of the evidence claim' is purely a matter of state law, it is not cognizable on habeas review."). Because this Court lacks authority to review a state court's application of its own law, the state-court determination that the verdict was not against the great weight of the evidence is final.
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 Court of Appeals' consideration of the trier-of-fact's verdict, as dictated by AEDPA." Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). This standard erects "`a nearly insurmountable hurdle'" for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2008) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Petitioner has not overcome that hurdle. His challenge rests entirely on questioning the credibility of the victims. He essentially asks the Court to turn the Jackson standard on its head. He invites the Court to view the evidence in a light that favors him, instead of the prosecution, and he asks the Court to invade the jury's province by reaching the Court's own conclusions with regard to the victims' credibility. That would be contrary to clearly established federal law.
Although the Michigan Court of Appeals did not directly address the sufficiency of the evidence, its determinations with regard to the weight of that evidence dictate the conclusion that the evidence was sufficient. Those determinations are not contrary to or inconsistent with the Jackson standard. Moreover, the factual determinations regarding the evidence are entirely reasonable on this record. Accordingly, Petitioner is not entitled to habeas relief on these issues.
On direct appeal, the focus of Petitioner's complaint regarding ex parte communications was the communication between the judge and a juror that was implicit in the telephone report that the prosecutor intended to file a grievance with the Judicial Tenure Commission. The Michigan Court of Appeals concluded first that Petitioner's counsel had waived any objection to the trial court's disinclination to investigate the matter further. (Mich. Ct. App. Op., ECF No. 8-10, PageID.1158-1159.) But the appellate court went on to say that even in the absence of that waiver "[n]o relief would be warranted. . . ." (Id., PageID.1159.)
The only ex parte communication disclosed on the record is the judge's admission that, in response to a complaint regarding the sound system by a single juror, the judge had noted that the system was new. (Trial Tr. V, ECF No. 8-8, PageID.1118.) That was the only ex parte communication found by the Michigan Court of Appeals. (Mich. Ct. App. Op., ECF No. 8-10, PageID.1158.) That communication was entirely innocuous.
As noted by the Supreme Court in Rushen v. Spain, 464 U.S. 114 (1983):
Rushen, 464 U.S. at 118-19 (footnote omitted); see also United States v. Gagnon, 470 U.S. 522, 526 (1985) ("`[Th]e mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.'"). The substance of the communications and their effect on juror impartiality are questions of historical fact entitled to a presumption of correctness. Rushen, 464 U.S. at 120. Petitioner offers no evidence, much less clear and convincing evidence, to overcome the Michigan Court of Appeals' determinations with regard to the substance of the ex parte communication and the absence of any impact on juror impartiality. Accordingly, Petitioner is not entitled to habeas relief with respect to that allegedly improper ex parte communication.
In Petitioner's motion for relief from judgment, he attacked a different allegedly improper ex parte communication between the judge and the jury. Petitioner maintains that the judge communicated with the jury, off the record and outside the presence of Petitioner, the prosecutor, or defense counsel, in response to a question from the jury regarding the definition of "penetration."
The trial court would not consider the claim because the issue regarding ex parte communications had been raised and decided against Petitioner on his direct appeal. Nonetheless, the trial court scoured the record in an attempt to find some factual support for Petitioner's proposition. The court found none:
(Eaton Cty. Cir. Ct. Op. and Order, ECF No. 8-13, PageID.1436.) The trial court's factual determinations are entitled to a presumption of correctness. Petitioner offers no evidence to overcome that presumption. Because Petitioner's challenge is factually unfounded, he is not entitled to habeas relief with regard to the penetration-instruction ex parte communication.
Finally, Petitioner contends his trial and appellate counsels were ineffective.
Petitioner claims trial counsel was ineffective for failing to object to prosecutorial misconduct, for failing to pursue the ex parte communication issue as raised on appeal or in Petitioner's motion for relief from judgment, and for failing to seek a new trial where the verdict was against the great weight of the evidence. Petitioner claims that his appellate counsel was ineffective for failing to raise the ex parte communication issue that Petitioner raised in his post-judgment motion and for missing some witness inconsistencies when making the "great weight" argument.
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 was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691. Counsel's failure to make a frivolous or meritless motion does not constitute ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010).
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 13 (2013); Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA. . . .") (citing Harrington, 562 U.S. at 102).
The Michigan Court of Appeals addressed Petitioner's direct appeal complaints about his trial counsel as follows:
(Mich. Ct. App. Op., ECF No. 8-10, PageID.1159.) The trial court followed suit with respect to the ineffective assistance of trial counsel claims Petitioner raised in his post-judgment motion:
To prevail on a claim that counsel was ineffective, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different, and that the attendant proceedings were fundamentally unfair or unreliable. People v Rodgers, 248 Mich.App. 702, 714 (2001). It is presumed that the assistance of counsel is effective, and a defendant bears a heavy burden of proving otherwise. People v McGhee, 268 Mich.App. 600, 625 (2005).
(Eaton Cty. Cir. Ct. Op. and Order, ECF No. 8-13, PageID.1436-1437.)
Although the Michigan Court of Appeals and the trial court applied state precedent in determining whether Petitioner's trial counsel was effective, the standard employed was essentially identical to Strickland. Thus, it cannot be said that the state courts used the wrong standard. Moreover, the state courts applied the standard reasonably. The determination that counsel's performance did not fall below an objective standard of reasonableness when counsel failed to raise meritless issues is not contrary to, or an unreasonable application of, Strickland, the clearly established federal law with regard to constitutionally ineffective assistance of counsel. Accordingly, Petitioner is not entitled to habeas relief with respect to his claim that trial counsel rendered ineffective assistance.
Petitioner's complaints about appellate counsel fare no better. The trial court rejected Petitioner's claims:
(Eaton Cty. Cir. Ct. Op. and Order, ECF No. 8-13, PageID.1437-1438.) The trial court's reasoning is unassailable. Petitioner's appellate counsel cannot be faulted for failing to raise meritless issues. "Omitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). The state court's determinations are not contrary to, or an unreasonable application of, Strickland. Accordingly, Petitioner is not entitled to habeas relief with respect to his claim that appellate counsel rendered ineffective assistance.
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). 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, I have 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.
I find that reasonable jurists could not conclude that this Court's dismissal of Petitioner's claims would be debatable or wrong. Therefore, I recommend that the Court deny Petitioner a certificate of appealability.
For the foregoing reasons, I recommend that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied.
