United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
JUDITH E. LEVY, District Judge.
Michigan state prisoner Christopher Johnson has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Oaks Correctional Facility in Manistee, Michigan, challenges his convictions for two counts of first-degree criminal sexual conduct. Respondent argues that the petition should be denied because the claims are meritless. For the reasons discussed below, the Court will deny the petition.
Johnson's conviction arises from the sexual assault of his daughter, N.J.,  when she was 15 years old. N.J. testified that she had little contact with her father from the time she was three or four years old until she was 14. When she was 14, Johnson came back into her life and she and her brother, who both lived with her mother, would occasionally spend the night at Johnson's house. A few days after her fifteenth birthday, N.J. and her brother spent the night at Johnson's house. N.J. testified that she was alone in the living room when Johnson told her he was about to see if she was a virgin. He told her to bend over the couch, which she did because she feared him. Johnson then had vaginal intercourse with her. He warned her not to tell anyone or he would kill her. She did not tell anyone, but did not return to her father's house for approximately seven months.
In March or April 2007, she again stayed at Johnson's house. He touched her breast, but had no further sexual contact with her that day. In April or May 2007, N.J. began visiting her father every other weekend. She did not want to go but feared he would think she had told someone what he had done if she stopped visiting. One morning, in April or May 2007, he performed oral sex on her. Following this incident, N.J. stopped going to her father's house.
Five or six months after she stopped going over her father's house, she finally told her mother what had happened and the police were contacted.
Johnson testified in his own defense. He denied the allegations of sexual assault. He testified that, in 2006, N.J.'s mother contacted him about discipline issues with N.J. and he, in response, discussed the issues with N.J. He told N.J. that her mother was concerned about her lying and involvement with boys and that her mother would place her in a juvenile detention facility if she did not straighten out her life. In 2007, N.J. failed to come home from a boy's house at the agreed upon time. Johnson telephoned her and the two argued. He then threatened to place her in juvenile detention.
II. Procedural History
Following a bench trial, Johnson was convicted in Wayne County Circuit Court of two counts of first-degree criminal sexual conduct. On January 7, 2009, he was sentenced to 20 to 40 years' imprisonment for each conviction.
Johnson filed an appeal of right in the Michigan Court of Appeals and raised these claims: (i) insufficient evidence was presented to support the convictions; (ii) ineffective assistance of counsel; and (iii) offense variable 4 was incorrectly scored in determining his sentence. The Michigan Court of Appeals affirmed his convictions. People v. Johnson, No. 290279, 2010 WL 673365 (Mich. Ct. App. Feb. 25, 2010). The Michigan Supreme Court denied Johnson leave to appeal. People v. Johnson, 487 Mich. 856 (2010).
Johnson filed a motion for relief from judgment in the trial court. He raised these claims: (i) trial counsel was ineffective for failing to request a grand jury to establish probable cause and for failing to object when the prosecutor bolstered the victim's credibility; and (ii) appellate counsel was ineffective for not raising these claims on direct appeal. The trial court denied the motion. People v. Johnson, No. 08-006502-01-FC (Wayne County Cir. Ct. June 2, 2011). Johnson's application for leave to appeal to the Michigan Court of Appeals was denied, People v. Johnson, No. 305414 (Mich. Ct. App. Dec. 27, 2011), as was his application for leave to appeal to the Michigan Supreme Court. People v. Johnson, 492 Mich. 866 (Mich. 2012).
Johnson then filed the pending habeas petition. He raises these claims:
I. Trial counsel was ineffective by not advising his client of his right to go before a grand jury as a means of forcing the prosecution to show that there is enough merit to bring charges against Petitioner.
II. Prosecutorial misconduct occurred when the prosecutor argued facts not in evidence and vouched for a witness's credibility.
III. Trial counsel was ineffective when he failed to object to prosecutorial misconduct, and when the prosecutor argued facts not in evidence and vouched for the credibility of the witness.
IV. Appellate counsel was ineffective for failing to raise prosecutorial misconduct related to the prosecutor vouching for a witness' credibility.
V. Insufficient evidence presented to sustain convictions.
VI. Verdict was against the great weight of the evidence.
VII. Trial counsel was ineffective in failing to use a letter written by the victim for impeachment.
VIII. Guidelines were improperly scored.
III. Standard of ...