United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
LAWRENCE P. ZATKOFF, District Judge.
This matter is before the Court on Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Isabella Circuit Court of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b, and accosting a child for immoral purposes. MICH. COMP. LAWS § 750.145a. Petitioner is currently serving concurrent sentences of 135-to-360 months for the criminal sexual conduct conviction and 17-to-48 months for the accosting a child conviction. The petition raises six claims: (1) the victim falsely testified at trial, (2) a police officer falsely testified at trial, (3) trial counsel was ineffective, (4) appellate counsel was ineffective, (5) the trial court erroneously allowed evidence that Petitioner was racist, and (6) the prosecutor committed misconduct. The Court will deny the Petitioner's request because the claims are without merit or procedurally defaulted. The Court will also deny Petitioner a certificate of appealability, and permission to appeal in forma pauperis.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which 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):
Officers arrested defendant in October 2007, after the complainant revealed to her counselor that she had had a sexual relationship with defendant that began in 2003 and ended in 2005. Defendant admitted to the sexual relationship, but testified that the first sexual encounter between the two took place when the complainant was 16. The complainant, however, testified to several sexual encounters that took place before her sixteenth birthday.
People v. Slocum, No. 285563, 2009 WL 4724304, at *1 (Mich. Ct. App. Dec. 10, 2009).
Following his conviction and sentence, Petitioner filed an appeal of right, raising the following claims:
I. Defendant was denied his right to a fair trial (US Const. Ams V, VI; Const. 1963, art 1, §§ 17, 20), when complainant testified defendant was racist and violated a pre-trial ruling by describing the sex as becoming more aggressive.' Only if necessary to reach this issue, defendant argues trial counsel was constitutionally ineffective in failing to object or seek a cautionary instruction.
II. Defendant was denied his due process right to a fair trial, U.S. Const. Ams V, VI; Const 1963, art 1, §§ 17, 20, when the trial court refused his requests for: (1) complete counseling records of complainant, (2) complete phone logs, and (3) an adverse inference instruction regarding a videotape made of complainant's statement to police. An ineffective assistance claim is presented only if needed for the court to reach these issues.
III. Resentencing is warranted where the defendant's sentences were increased based on facts neither proved to a jury nor admitted by defendant, specifically OV 13, and this violated defendant's Sixth Amendment rights That said, Defendant acknowledges that he is advocating what would be a change is [sic] existing law.
IV. Defendant contends that the $1, 400.00 in fines and $2, 800.00 in costs he was assessed in this matter constitutes an improper ex post facto application of MCL 769.1k. As such, they are unlawful and should be vacated.
Petitioner also filed a pro-se supplemental brief, raising the following claim:
V. Defendant was denied his due process right to a fair trial (US Const Ams V, VI; Const 1963, art 1, §§ 17, 20), when prosecutor at closing argument expressed his personal opinion as to the guilt of the defendant, repeatedly claimed the defendant had lied in his testimony, repeatedly vouched for the complainant's testimony, and made statements aimed at arousing the passions or sympathies of the jury. Only if necessary to reach the issue, the defendant argues trial counsel was constitutionally ineffective in failing to object or seek cautionary instruction.
The Michigan Court of Appeals affirmed Petitioner's convictions. Id. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, but his application was denied by standard order. People v. Slocum, No. 140398 (Mich. Sup.Ct. May 25, 2010).
Petitioner returned to the trial court and filed a motion for relief from judgment, raising the following claims:
I. Appellant was prejudiced and deprived of his due process right to a fair trial (US Const Ams V, VI; Const 1963, art 1, §§ 17, 20) when complainant's false and misleading testimony was given at trial regarding dates she was around appellant, her general disposition toward appellant, her interaction with her counselor, and the frequency of phone calls she made to appellant.
II. Appellant was prejudiced and deprived of his due process right to a fair trial (US Const Ams V, VI; Const 1963, art 1, §§ 17, 20) when police officer Alan White's false and misleading testimony was given at trial regarding his October 2007 investigation report of what he found in Mason County during his investigation and the map admitted as exhibit #25 at trial.
III. Trial counsel was constitutionally ineffective under both the United States and Michigan Constitutions (US Const Am VI; Const 1963, art 1, § 20) for failing to share critical 404(b) evidence with appellant, failing to investigate relevant facts and interview material witnesses, writing a defective subpoena, and failing to establish critical dates of relevant events.
IV. Appellate counsel was constitutionally ineffective under both the United States and Michigan Constitutions (US Const Am VI; Const 1963, art 1, § 20) for failing to investigate relevant facts and interview material witnesses and for not filing a motion for remand for a Ginther hearing to make an appellate record of trial counsel's ineffective representation.
The trial court denied the motion for relief from judgment, finding in part that Petitioner's claims were barred from review under Michigan Court Rule 6.508(D)(3). Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). People v. Slocum, No. 312063 (Mich. Ct. App. Jan. 3, 2013). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court but was also denied relief under Rule 6.508(D). People v. Slocum, 833 N.W.2d 915 (Mich. 2013) (table).
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims 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 ...