The opinion of the court was delivered by: Honorable Marianne O. Battani United States District Court
Honorable Marianne O. Battani
Magistrate Judge Donald A. Scheer
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner, Eric Baker, is a state inmate currently incarcerated at Cooper Street Correctional Facility in Jackson, Michigan. Petitioner was convicted of two counts of first-degree criminal sexual conduct, Mich. Comp. Laws §750.520b(1)(a) and one count of second-degree criminal sexual conduct, Mich Comp Laws §750.520c(1)(a). He was sentenced to serve concurrent terms of eleven to twenty years' imprisonment for each first degree criminal sexual conduct conviction and three to fifteen years imprisonment for the second-degree criminal sexual conduct conviction.
Petitioner has filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254. For the reasons that follow, the Court will deny the petition.
The state appellate court in this case set forth underlying facts, which are presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp.2d 753, 758 (E.D. Mich. 2001), aff'd . 41 Fed. App'x. 730 (6th Cir. 2002), as follows:
"The complainant was ten years old at the time of trial. She lived with her mother and defendant, her stepfather, at the time of the alleged sexual assaults. She first told three of her friends at school, also girls, about defendant sexually abusing her. All three girls recalled that the complainant told them suddenly after she started to cry, and one girl testified that the complainant told the girls about defendant after another friend mentioned a friend whose father sexually assaulted her. The complainant's friends told the school counselor about the assaults, and she eventually told the counselor herself. The complainant testified that defendant had sexually abused her multiple times after she returned home from school and told her not to tell anyone else because it was a secret.
The complainant's mother testified that defendant would have been alone with the complainant and the complainant's sister for up to an hour after they returned home from school. She also testified that the complainant's glasses went missing the day before the complainant disclosed the alleged abuse. She and defendant could not afford new glasses, so defendant required the complainant to choose between attending soccer and getting new glasses. The complainant testified that defendant hurt her emotionally when he forced her to choose between soccer and glasses, but she said that it did not cause her to disclose what had happened. The complainant's mother also testified that the complainant was aggressive and sometimes had problems with lying. Gina Gough, a protective services employee, interviewed the complainant. Gough testified that the complainant became tearful and indicated that defendant had touched her under her underwear and "put his thing in her mouth." Gough and Detective Timothy Fandel then drove to defendant's house, where they informed defendant and the complainant's mother of the allegations. Defendant denied the allegations, and the complainant's mother did not believe them. Gough concluded that the children were not safe and arranged to place them with the complainant's grandparents. On cross-examination by defendant, Gough admitted that she had been deceived by children in the past. On redirect examination, she indicated that she did not believe she had been deceived n this case.
Dr. Stephen Guertin, a physician member of the child safety program at Sparrow Hospital, physically examined and interviewed the complainant. On that basis, he concluded that defendant had had intercrural intercourse with complainant, which is placing the penis between another's leg's and down along the vaginal area. He found no signs of physical injury and that the complainant had a normal hymen, which would be normal if there had not been vaginal intercourse. He found evidence of labial fusion, but he explained that he saw that often in children who had not been molested. Dr. Vernon Westervelt, a child psychologist who testified for the defense, examined the complainant and diagnosed her with attention deficit hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD"). However, Dr. David Fugate, a child psychologist who testified for the prosecution, stated that he did not believe complainant had either disorder." People v. Baker, No. 257440, 2005 WL 3334602, *1, (Mich. Ct. App. Dec. 8, 2005) (per curiam).
Petitioner filed an appeal of right and raised the following claims:
"I. Defense trial counsel was constitutionally ineffective in failing to object to a child protective services worker testifying that the worker did not believe the complainant was safe and initiated removal of the complainant from appellant's residence after investigating the criminal sexual conduct allegations, thereby giving improper opinion testimony as to appellant's guilt.
II. The trial court violated appellant's due process rights by refusing to grant a mistrial where the prosecutor elicited testimony that the complainant had also reported that appellant allegedly assaulted the complainant's two siblings, which amounted to irrelevant and unfairly prejudicial other acts evidence.
III. The trial court violated appellant's due process rights at sentencing by scoring offense variables and increasing the statutory sentencing guideline range based on alleged facts which the prosecutor did not charge and prove beyond a reasonable doubt at a trial or have appellant admit at a plea." The Michigan Court of Appeals affirmed Petitioner's conviction. Id.
Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims argued before the Michigan Court of Appeals. Relief was also denied. People v. Baker, 475 Mich. 885; 715 NW2d 881 (2006)(table).
Petitioner now brings this petition for writ of habeas corpus and raises the same three claims presented before the Michigan Court of Appeals and the Michigan Supreme Court.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this court's habeas corpus review of state court decisions. Petitioner is entitled to the writ of habeas corpus if he can show that the state court's adjudication of his claim on the merits:
(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 on an unreasonable determination of the facts in light of the evidence presented at the State court proceedings.
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal ...