THOMAS L. LUDINGTON, District Judge.
Petitioner Steven Atkinson, presently on parole supervision through the Lapeer County Parole Office in Lapeer, Michigan, was convicted by a jury in the Emmet County Circuit Court of two counts of second-degree criminal sexual conduct in violation of Mich. Comp Laws § 750.520c(1)(a). Petitioner was sentenced to three to fifteen years in prison. On February 16, 2016 Petitioner filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 contending that he was denied the effective assistance of counsel and that his lifetime tether requirement violates the Fourth and Eighth Amendments to the United States Constitution. Respondent Michigan Department of Corrections ("MDOC") has filed an answer to the petition, asserting that the claims lack merit and have been procedurally defaulted. Because Petitioner's claims are without merit, the petition will be denied.
The following relevant facts relied upon by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
People v. Atkinson, No. 311626, 2014 WL 129269, at *1 (Mich. Ct. App. Jan. 14, 2014). Petitioner's conviction was affirmed by the Michigan Court of Appeals. Id. The Michigan Supreme Court then denied Petitioner's application for leave to appeal. People v. Atkinson, 497 Mich. 896, 855 N.W.2d 744 (Mich. 2014).
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
A state court adjudication is contrary to Supreme Court precedent under § 2254(d)(1) if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different result]." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). A state court adjudication involves an unreasonable application of federal law under § 2254(d)(1) if "the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (internal quotation marks omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, the state court's decision must have been more than incorrect or erroneous," but rather "must have been objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotations and citations omitted):
White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (citations, quotation marks, and alterations omitted). "When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). "Federal habeas review thus exists as `a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). "[W]hether the trial judge was right or wrong is not the pertinent question under AEDPA." Renico v. Lett, 559 U.S. 766, 778 n.3 (2010). Rather, the pertinent question is whether the state court's application of federal law was "objectively unreasonable." White, 134 S. Ct. at 1702. In short, the standard for obtaining federal habeas relief is "difficult to meet . . . because it was meant to be." Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (internal quotation marks omitted).
In his § 2254 petition, Petitioner Atkinson seeks a writ of habeas corpus on two separate grounds. First, he argues that he was denied the effective assistance of counsel because his trial counsel failed to interview necessary witnesses with exculpatory testimony and failed to play a forensic protocol DVD, which highlighted inconsistencies in MR's allegations. Petitioner also argues that imposition of lifelong GPS monitoring infringes upon his constitutional right to be free from unreasonable searches and seizures under the Fourth Amendment and his right to not be subjected to cruel and unusual punishment under the Eight Amendment. Each argument will be addressed in turn.
Petitioner first contends that he was denied the effective assistance of trial counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-prong test for determining whether a habeas petitioner's counsel was ineffective. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687. Second, the petitioner must establish that counsel's deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial. Id.
With respect to the performance prong, a petitioner must identify acts that are "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. The Court's scrutiny of counsel's performance is viewed through a highly deferential lens. Id. at 689. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. And it is the petitioner who bears the burden of overcoming the presumption that his counsel's actions constituted sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 686.
Furthermore, on habeas review, "the question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable — a substantially higher threshold." Knowles v. Mirzayance, 556 U.S. at 123 (internal quotations omitted). Consequently, the § 2254(d)(1) standard applies a "doubly deferential judicial review" to a Strickland claim brought by a habeas petitioner. Id. Because of this doubly deferential standard, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 562 U.S. at 105. A reviewing court must not merely give defense counsel the benefit of the doubt, but must also affirmatively entertain the range of possible reasons that counsel may have had for proceeding as he or she did. Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011).
Petitioner first argues that trial counsel, Attorney Kur, was ineffective for failing to present to the jury the video recording of MR's interview with a child protective services worker and a police officer. Petitioner contends that the videotape could have been used to impeach MR's credibility and to establish that she had been coached by the social worker or the police officer to incriminate the petitioner.
The Michigan Court of Appeals rejected the claim as follows:
People v. Atkinson, No. 311626, 2014 WL 129269, at *2, 4-5 (internal citations omitted).
As found by the Michigan Court of Appeals, Petitioner is not entitled to relief on his claim for several reasons. First, although his trial counsel did not introduce the videotaped interview, she did cross-examine MR and the other witnesses extensively about the inconsistencies in MR's stories and also elicited admissions from Reedy and Lairsten that MR had been asked leading questions by Lairsten. It was perfectly reasonable for trial counsel to use the witnesses' trial testimony and prior statements to impeach MR and the other witnesses through cross examination. Her failure to use the actual videotape thus "does not demonstrate deficiency." See Cleveland v. Bradshaw, 65 F.Supp.3d 499, 540 (N.D. Ohio 2014). Petitioner also cannot demonstrate prejudice from defense counsel's failure to play the videotaped interview because MR's "inconsistencies were detailed and well known to the jury." People v. Atkinson, 2014 WL 129269, at *4-5. See also Welsh v. Lafler, 444 F. App'x. 844, 852 (6th Cir. 2011) (defense counsel's failure to admit into evidence in prosecution for criminal sexual conduct audiotape of the petitioner's conversation with the victim at county fair, during which the victim stated that the petitioner did not touch him inappropriately, did not constitute ineffective assistance of counsel, given that the witness admitted his prior inconsistent statements during trial testimony); Wolfe v. Bock, 412 F.Supp.2d 657, 676-77 (E.D. Mich. 2006), aff'd, 253 F. App'x. 526 (6th Cir. 2007) (trial counsel's failure to introduce tape recording of informant's statement to police did not prejudice the petitioner, when the informant was impeached with other evidence at trial).
Furthermore, as noted by both the trial judge and the Michigan Court of Appeals, the videotape would have shown MR in an emotional state accusing Petitioner of sexually molesting her. The videotape would have in some ways actually corroborated her testimony. Because this evidence would have been potentially damaging to Petitioner, his trial counsel was not ineffective for failing to use it to impeach MR. See e.g. U.S. v. Munoz, 605 F.3d 359, 382 (6th Cir. 2010). This claim is therefore without merit
Petitioner also argues that his trial counsel was ineffective for failing to investigate and call certain witnesses to testify, including KH (MR and HR's mother), Theresa Atkinson (Petitioner's mother), and Teri Nestor (a friend of KH). The Michigan Court of Appeals rejected this claim as follows:
People v. Atkinson, 2014 WL 129269, at * 6.
In the present case, Petitioner's trial counsel extensively impeached MR's credibility at trial through her cross-examination of MR and other witnesses, including KH. Undisclosed impeachment evidence is considered cumulative "when the witness has already been sufficiently impeached at trial." Davis v. Booker, 589 F.3d 302, 309 (6th Cir. 2009) (quoting Brown v. Smith, 551 F.3d 424, 433-34 (6th Cir. 2008)). Because MR's credibility had already been impeached, Petitioner was not prejudiced by his trial counsel's decision not to impeach MR with cumulative impeachment evidence. Id. Petitioner therefore is not entitled to relief on his first claim.
Petitioner next contends that the trial judge violated his Fourth and Eighth Amendment rights when he imposed lifetime electronic monitoring upon Petitioner as part of his sentence. Under Michigan Compiled Laws § 750.520n(1), a person who is convicted of first or second-degree criminal sexual conduct against a person under the age of 13 must be placed on lifetime electronic monitoring. In response to Petitioner's argument, Respondent argues that this claim is procedurally defaulted because Petitioner failed to object at trial.
Procedural default is not a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Instead, "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir.2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). "Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Lambrix, 520 U.S. at 525. In the present case, the Court finds that the interests of judicial economy are best served by addressing the merits of Petitioner's second claim.
Petitioner's claim that the imposition of lifetime electronic monitoring violates his Fourth Amendment right to be free from an unreasonable search and seizure will be addressed first. In Grady v. North Carolina, 135 S.Ct. 1368, 1371 (2015), the United States Supreme Court held that North Carolina's satellite based monitoring system for tracking the movement of convicted sex offenders amounts to a search within the meaning of the Fourth Amendment. The Supreme Court, however, declined to review the constitutionality of North Carolina's system, observing that the Fourth Amendment prohibits only unreasonable searches and seizures. Id. Noting that the North Carolina Supreme Court did not determine whether the search was reasonable in its initial review of the defendant's case, the United States Supreme Court declined to address that issue, and remanded the case to the North Carolina Supreme Court for just such a determination. Id.
In Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016), the United States Court of Appeals for the Seventh Circuit rejected a Fourth Amendment challenge to a Wisconsin law which required persons convicted of certain sex offenses to wear an electronic monitoring device for the rest of their lives. In so ruling, the Seventh Circuit read the United States Supreme Court's holding in Grady as concluding "that electronic monitoring of sex offenders is permitted if reasonable[,]." Belleau, 811 F. 3d at 932. The Seventh Circuit further concluded that "[H]aving to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than being in jail or prison, or for that matter civilly committed, which realistically is a form of imprisonment." Id. The Seventh Circuit suggested that such monitoring of convicted sex offenders was reasonable in light of the high recidivism rates of persons who have sexually molested children. Id. at 932-936. The Seventh Circuit concluded that the ankle monitoring of Mr. Belleau was reasonable. Id.
The United States Supreme Court has yet to hold that lifetime monitoring of convicted sex offenders amounts to an unreasonable search and seizure in violation of the Fourth Amendment. Where no precedent of the Supreme Court clearly forecloses a state court's ruling, it cannot be considered an unreasonable application of Supreme Court precedent. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016) (per curiam). In the absence of any clearly established law to the contrary, the Michigan Court of Appeals' rejection of the petitioner's Fourth Amendment claim does not entitle him to habeas relief.
Petitioner also argues that the imposition of lifetime electronic monitoring violates the Eighth Amendment ban against cruel and unusual punishment. However, as with his Fourth Amendment claim, the Supreme Court has yet to hold that lifetime electronic monitoring violates the Eighth Amendment. Therefore the state court's rejection of Petitioner's claim was not contrary to, or an unreasonable application of, clearly established federal law. See Noonan v. Hoffner, No. 1:14-CV-830, 2014 WL 5542745, at *6 (W.D. Mich. Oct. 31, 2014). Petitioner is not entitled to relief on his second claim.
Before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "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 that standard, a district court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-37. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
Having considered the matter, the Court concludes that Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability is not warranted in this case. The Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
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