The opinion of the court was delivered by: Honorable Arthur J. Tarnow
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, BUT GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF APPEALABILITY
Michigan prisoner Tony Berry ("Petitioner") has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. Petitioner was convicted of first-degree criminal sexual conduct and first-degree home invasion following a jury trial in the Montmorency County Circuit Court. He was sentenced as a fourth habitual offender to consecutive terms of 35 to 60 years imprisonment and 20 to 40 years imprisonment on those convictions in 2003. In his pleadings, Petitioner raises claims concerning the admission of other acts evidence, the right to present a defense, the use of jury questions, a request for DNA testing, the sufficiency of the evidence, the jury instruction on flight, the legality of his arrest, the denial of counsel, the effectiveness of trial and appellate counsel, and actual innocence. For the reasons stated herein, the Court denies the petition for a writ of habeas corpus,.but grants in part and denies in part a certificate of appealability.
Petitioner's convictions arise from the home invasion and sexual assault of a 90-year-old woman at her residence in Atlanta, Michigan on September 19, 2001. The Michigan Court of Appeals set forth the relevant 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. Appx. 730 (6th Cir. 2002), as follows:
On September 19, 2001, defendant allegedly broke into the ninety-year-old victim's home in Atlanta, Michigan, and sexually assaulted her. The victim*fn1 testified that she was in bed when she noticed a light outside her window. As she went toward the door, two men came inside. One perpetrator pushed the victim back onto the bed and sat beside her. The same perpetrator put his hand on her leg, and the victim pushed it away. As the two men were leaving, one man threatened to return "and get her" if she reported the incident to the police, or if he saw a police car "in [her] yard." After the men left, the victim discovered that her purse had been moved, and all of her fifteen one-dollar bills were missing.
Later that night, one of the men forced the chain off the victim's door and came back inside with a flashlight. When the victim confronted the perpetrator about her missing money, he initially denied taking it, but thereafter went outside and returned with some money. The perpetrator sat on the bed beside the victim, asked for some paper towel, went into the kitchen to retrieve the paper towel, handed the money to the victim, and directed her to use the paper towel to wipe off any fingerprints. After the victim wiped the money, the perpetrator retained the paper towel. The victim got up and turned on a lamp, but the perpetrator immediately turned it off and pushed the victim back onto the bed. Thereafter, the perpetrator removed the victim's pajama bottoms, exposed his penis, and was "all over" the victim. The victim pushed the perpetrator "as hard as [she] could," noting that he was lying directly on her pacemaker. The perpetrator, who was wearing hard rubber gloves, put his hand over the victim's face and mouth. When the victim refused to put her hand on the perpetrator's penis, as directed, he used his hand and forced her to touch his penis, which never became erect. The perpetrator forced the victim's legs apart, "put his face right down on [the victim's vagina]," and touched her vagina with his tongue. The victim indicated that she unsuccessfully attempted to fight him off. After the assault, the perpetrator asked the victim if she "got any thrill or any good feeling out of this at all?" Before leaving, the perpetrator made the victim promise not to report the incident, and threatened to return if she told anyone or if he saw the police in her yard.
On September 20, the victim's friend took the victim away from her home and they reported the incident to the police. The victim described the perpetrator as "quite a broad man" with broad feet. The perpetrator was barefoot, wore a wet, cold rubber cap and rubber gloves, and had a "very bad" smell of "some kind of booze." The victim indicated that she could hardly see the perpetrator. A doctor who treated the victim on September 21 testified that she had bruising on her nose and chin, but no trauma to the vaginal area.
While leaving the victim's residence on the evening of September 21, officers observed a pickup truck parked at a cabin "right next to" the victim's residence.
On September 22, the police returned and noticed bare footprints in the sand outside the victim's residence that led to the rear door of the cabin. A pickup truck registered to defendant was parked at the cabin.
The owner of the cabin, who was at the cabin the weekend before the incident, testified that defendant had been staying in a tent in the woods. During that weekend, however, the owner invited defendant to stay inside the cabin because it was raining and defendant's truck was not working. The owner allowed defendant to remain inside the cabin after the owner left for the week. The owner indicated that defendant was drinking a lot of vodka inside and outside the cabin. The owner also indicated that defendant had asked "a lot of general questions" about the victim. Included in defendant's inquiries were questions regarding the victim's age and whether she had many visitors.
During a search of the cabin the police confiscated a dollar bill and paper towels wadded up in a trash container, vodka bottles in a barrel outside the cabin, and gloves with rubber tips and a flashlight from the cabin floor. Two hairs were retrieved from one of the rubber gloves. DNA testing on the two hairs revealed that they matched a hair sample taken from the victim.
The police also collected blankets, bedding, and pajama bottoms from the victim's bedroom, as well as hairs from the bed. A hair found on the victim's bed did not match the victim or defendant, and no further DNA testing was performed on the hair. Defendant was also excluded as a contributor of stains found on the victim's pajama bottoms and bedding.*fn2 A forensic scientist testified that blue denim jeans could have caused certain fabric impressions on the victim's bedding.
Mark Boughner testified that he drove defendant to the cabin during the afternoon of September 19. Defendant was wearing blue jeans, and had been drinking "some kind of liquor." Boughner next saw defendant on September 20 at Tressia Hensley's residence. Defendant remarked that he was at Hensley's house because "a couple of guys had come to the cabin causing problems and that he shot one of them in the knees." Hensley corroborated Boughner's testimony in that regard, and added that she and defendant drank vodka while at her house.*fn3 On the morning of September 21, Boughner drove defendant back to the cabin to get his belongings, and then drove him to a campsite. He noted that defendant's truck was not operable at the time.
In March 2002 the FBI and a Dearborn police fugitive team arrested defendant, who was still using an alias, in Detroit. Defendant admitted during an interview that he had used an alias and stayed in motels in Florida and Pennsylvania. Although defendant claimed that he used an alias because of a pending gun charge, the police subsequently discovered that the claim was untrue. Defendant acknowledged that he was staying in the cabin next to the victim's residence on September 19, but denied ever being inside the victim's residence or having any involvement in the charged crimes. Defendant claimed that he was with Boughner on the night of September 19.
A former St. Clair Shores detective testified that he investigated a 1978 breaking and entering of a residence that occurred after midnight and involved the sexual assault of a ninety-six-year-old woman in her bedroom. The perpetrator broke open the door, removed his shoes, put his hand over the woman's mouth, removed the woman's nightgown, opened her legs, and attempted vaginal penetration.*fn4 Following the incident, the officer spoke to defendant. Defendant admitted his involvement in the sexual assault and admitted drinking vodka. The officer indicated that defendant lived a few houses away from the woman's house, on the same side of the street.
People v. Berry, No. 249430, 2005 WL 354583, *1-3 (Mich. Ct. App. Feb. 15, 2005) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals raising claims concerning the admission of other acts evidence, the right to present a defense, the use of jury questions, a request for DNA testing, and ineffective assistance of trial counsel. The Michigan Court of Appeals affirmed his convictions. People v. Berry, No. 249430, 2005 WL 354583 (Mich. Ct. App. Feb. 15, 2005) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Berry, 474 Mich. 900, 705 N.W.2d 116 (2005).
In 2006, Petitioner filed an initial habeas petition in federal court, which was dismissed upon his own motion that same year. Petitioner then filed a motion for relief from judgment in the state trial court raising claims concerning the sufficiency of the evidence, the jury instructions, the validity of his arrest, and the effectiveness of trial and appellate counsel. The trial court denied the motion finding that the claims lacked merit. Petitioner filed an application for leave to appeal which was denied for lack of merit. People v. Berry, No. 275488 (Mich. Ct. App. May 24, 2007) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied because he "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Berry, 480 Mich. 891, 738 N.W.2d 713 (2007).
Petitioner thereafter instituted the present habeas action, raising the following claims as grounds for relief:
I. The trial court violated his due process rights by admitting unfairly prejudicial evidence of a prior criminal sexual conduct incident.
II. The trial court violated his due process right to present a defense by excluding evidence of third-party guilt.
III. The trial court violated his due process right to trial by an impartial jury by allowing jurors to submit questions for witnesses during the trial.
IV. Due process requires post-conviction DNA testing of a foreign hair collected from the victim's bed after the incidence.
V. He was denied due process where the evidence was insufficient but the conviction was obtained as a result of constitutionally infirm and inadmissible evidence, denial of confrontation and cross-examination, and insufficient jury instructions.
VI. His convictions must be reversed where his state and federal constitutional rights to be free from unreasonable seizure were violated and his resulting statements should have been suppressed, where his warrantless arrest was not supported by probable cause.
VII. He was denied his constitutional rights to due process, equal protection, and effective assistance of counsel where state officials placed defense counsel in circumstances in which competent counsel very likely could not render assistance and completely denied him the presence of counsel at critical stages, thereby depriving him of a fair trial.
VIII. He was denied his constitutional rights to due process, equal protection, and effective assistance of counsel where defense counsel failed to investigate, file motions, or prepare for trial and entirely failed to subject the prosecution's case to meaningful adversarial testing, which rendered the outcome of his trial unreliable.
IX. He was denied his constitutional rights to due process, equal protection, and appeal of right where he received ineffective assistance of appellate counsel and interference by officials made his compliance impractical, which constitutes cause for procedurally defaulted claims.
X. He is being unconstitutional restrained of his liberty where he is actually innocent.
Respondent has filed an answer to the petition contending that it should be denied because the claims lack merit and/or are barred by procedural default.
Federal law 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 --
(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 in the State court proceedings.
28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of state court factual ...