United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [Dkt. 6], DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
ARTHUR J. TARNOW, Senior District Judge.
Petitioner Robert Wilburn has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Livingston Circuit Court of one count of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(a), and two counts of second-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520c(1)(a). As a result of his convictions, Petitioner is serving concurrent terms of 10-to-30 years for the first-degree conviction and 10-to-15 years for the second-degree convictions. The petition raises three claims: 1) the prosecutor committed misconduct, 2) Petitioner was denied the effective assistance of counsel at trial, and 3) Petitioner was denied the effective assistance of counsel on direct appeal. See ECF 12, p. 4. The Court will deny the petition because the claims are without merit. The Court will also deny Petitioner a certificate of appealability but grant Petitioner permission to proceed on appeal in forma pauperis.
Charges against Petitioner arose from allegations he sexually assaulted an eleven-year-old girl who resided in a house he was renting to the girl's family.
At Petitioner's jury trial, Michelle Adams testified she was the oldest of her mother' six children. Her family lived in a home they rented from Petitioner located across the street from his house. Petitioner had a son, Robert, and Michelle would occasionally go over to Petitioner's house to play with him.
Michelle testified that on March 3, 2006, she was playing with Robert at Petitioner's house. Michelle was sitting on a couch with Petitioner watching Robert play video games. Petitioner offered Michelle five dollars to massage her back. She agreed to do so. After the massage, Petitioner put a blanket over her. He put his hands under her shirt and started rubbing her breasts. He then put his hands under her underwear and put his finger between the folds of skin near her vagina. She was too scared to say anything. Petitioner also placed her hand on the crotch of his pants and made her rub it.
Michelle told Petitioner she was going home to retrieve a movie that her mother had borrowed from Petitioner. Instead, she told her mother what happened, and her mother drove her to the hospital. At the hospital, a rape kit was performed, and officers arrived.
Patricia Crane testified she was the nurse who conducted the rape kit. Crane reiterated Michelle's story: Petitioner had paid for a massage, he felt her breasts, he asked her to feel his "private parts, " and he put his fingers in her "private parts." Crane did not observe an injury to the vaginal area and no medical treatment was necessary.
On March 5, 2007, Petitioner was interviewed at a police station. Petitioner recalled that he had his son over for the weekend and had fallen asleep on the couch during the time in question. He said that he when he awoke, Michelle was lying with her head in his lap, her hand was on his pants over his penis, and his own hand was close to her breasts. Michelle quickly got up from the couch and went home. Petitioner testified Michelle's mother had probably directed Michelle to do this because the lease was set to expire.
Elizabeth Stahl conducted a forensic interview of Michelle. During the interview, Michelle said Petitioner put his hand over her mouth during the encounter, a detail Michelle had not told the nurse or police.
Lu Ann Curl, the complainant's step-grandmother, testified for the defense that she thought Michelle was a liar. She testified she heard a conversation between her husband and Michelle that Michelle's mother had her falsify allegations in order to obtain money from Petitioner, and Michelle admitted during the conversation the allegations were a lie. Lu Ann's husband, Mitchel Curl, corroborated Lu Ann's testimony.
Michelle testified in rebuttal that her mother and the Curl's were unhappy with each other. She denied making statements to Mitchel that her mother told her to fabricate the story. She testified Mitchell asked her about the allegations, she replied they were true, and she told him to stop asking about it.
The jury found Petitioner guilty of one count of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims:
I. The trial court abused its discretion by overruling Defendant's objection to the admission of evidence of statements made by complainant to Patricia Crane (a "sexual assault nurse examiner"), the court holding that the evidence was admissible pursuant to the "medical treatment exception, " MRE 803(4).
II. The trial court erred by denying Defendant's request to add the phrase "in light of all the evidence in this case" at the end of its instruction to the jury that "it is not necessary that there be evidence other than the testimony of Michelle Adams if that testimony proves guilty beyond a reasonable doubt." The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion.
People v. Wilburn, No. 286019, 2009 WL 3930533, at *1, (Mich. Ct. App. Nov. 19, 2009). Petitioner did not appeal this decision to the Michigan Supreme Court.
Petitioner then returned to the trial court and filed a motion for relief from judgment, ...