The opinion of the court was delivered by: Victoria A. Roberts United States District Judge
HONORABLE VICTORIA A. ROBERTS
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas case under 28 U.S.C. § 2254. Jeffrey Brown ("Petitioner"), a Michigan prisoner, was convicted of two counts of third-degree criminal sexual conduct following a jury trial in the Oakland County Circuit Court and was sentenced to concurrent terms of 7 to 15 years imprisonment in 2004. In his amended petition, he raises claims concerning the admission of letter excerpts, the validity of his sentence, and the effectiveness of trial counsel. Respondent filed an answer to the amended petition contending that it should be denied, because the claims are barred by procedural default, are not cognizable upon habeas review, and/or lack merit.
For the reasons set forth, Petitioner is not entitled to habeas relief, and the Court denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
Petitioner's convictions arise from his sexual misconduct with his 16-year-old step-daughter while swimming at her grandfather's house in Highland, Michigan in the summer of 2002. Petitioner was charged with three counts of third-degree criminal sexual conduct.
At trial, the victim testified that Petitioner picked her up, put his hand inside the bottom of her bathing suit, and digitally penetrated her three times while they were swimming and playing in the pool with her younger siblings. She testified that she told him to stop and struggled to get away from him, but he persisted in assaulting her.
The victim also testified about other inappropriate sexual behavior by Petitioner. She explained that her family had "ice wars" at home in which they would put ice down each others' backs, but recalled occasions when Petitioner put ice down the front of her shirt and rubbed her breasts and pulled down her shorts and rubbed ice on her private area. The victim also described incidents in which Petitioner exposed himself to her while they were playing cards, showed her a picture of a naked woman on the computer, and peeked at her while she was in the shower.
Following the pool incident, the victim wrote a note to her mother telling her what had happened and recounting some of Petitioner's other improper conduct. Petitioner apologized to her and said that he was just playing and may have just gone too far. The victim's mother initially did not believe her, but changed her mind when the victim told her that Petitioner gave her "titty twisters," something he also did to her mother.
The victim's brother testified that he saw Petitioner pull down his sister's bathing suit bottom while they were swimming, but he did not recall seeing him put his hand into her suit or touch her private area. His sister did tell him that she was uncomfortable with Petitioner and asked him to watch out for her.
Janina Brown Blanton, the victim's mother and Petitioner's wife of nine years, testified that she confronted Petitioner about his behavior after receiving the note from her daughter, but he initially denied the allegations. When she told him about an interview with the Care Project, he admitted the shower incident and said he was sorry. He later admitted the "ice war" incident and expressed remorse. Petitioner asked Blanton for the victim's note, but she said that she had destroyed it. Petitioner thanked her because the letter would have given him 30 years in prison. After Petitioner moved out, he called and asked her to convince the victim not to testify against him. Petitioner did not admit digitally penetrating the victim.
Petitioner also wrote several letters to Blanton. Defense counsel objected to their admission on relevancy grounds. The trial court conducted an in camera review and allowed portions of the letters to be read to the jury. The court restricted the evidence to admissions against interest which were relevant and not cumulative. The court also instructed the jury that the letters would not be admitted into evidence, but that portions of them would be read to them. Blanton acknowledged during cross-examination that Petitioner did not admit to acts of digital penetration in his letters.
Livingston County Sheriff Deputy Wireman testified that interviewed Petitioner on May 5, 2003. Petitioner prepared a written statement in which he indicated that he did not blame the victim, that he should have never "crossed the line" with her, and accepted full responsibility for the inappropriate conduct. He did not admit to any acts of digital penetration. Deputy Wireman also testified that he was present when the victim was interviewed at the Care Project. He recalled that the victim only described one incident of digital penetration at the pool.
Petitioner did not testify at trial nor present his own witnesses. During closing arguments, trial counsel challenged the victim's credibility and argued that the prosecution had failed to establish beyond a reasonable doubt that Petitioner had engaged in three acts of digital penetration of the victim.
The jury convicted Petitioner of two counts of third-degree criminal sexual conduct, but acquitted him of the third count. The trial court subsequently conducted a sentencing hearing. Defense counsel objected to the scoring of certain offense variables under the state sentencing guidelines, but the trial court overruled those objections. The trial court then sentenced Petitioner to concurrent terms of 7 to 15 years imprisonment on his convictions.
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, raising claims concerning the admission of other acts evidence, the admission of the letter excerpts, the validity of his sentence, and the effectiveness of trial counsel. The Michigan Court of Appeals affirmed his convictions and sentence. See People v. Brown, No. 258825, 2006 WL 1041999 (Mich. Ct. App. April 20, 2006) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the letter excerpt, sentencing, and ineffective assistance of counsel claims. The Michigan Supreme Court denied leave to appeal in a standard order. See People v. Brown, 477 Mich. 911, 722 N.W.2d 842 (Oct. 31, 2006).
Petitioner signed his original petition for writ of habeas corpus on October 27, 2007 and the case was filed by the Court on November 2, 2007. He raised claims concerning the admission of other acts evidence, the admission of letter excerpts, the validity of his sentence, the effectiveness of trial counsel, and the sufficiency of the evidence. In May, 2008, Respondent moved to dismiss the petition on exhaustion grounds. The Court granted that motion and dismissed the petition without prejudice on June 5, 2008. Petitioner moved to reopen this case to proceed only on his exhausted claims and filed an amended petition. The Court granted his ...