United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Petitioner Jason Hayes’ petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner challenges his Oakland County Circuit Court jury trial conviction of two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b), second-degree criminal sexual conduct, Mich. Comp. Laws . § 750.520c(1)(b), and third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(d). As a result of these convictions, Petitioner received concurrent sentences, the longest of which is 15-to-30 years. The petition raises six claims: 1) Petitioner was denied the effective assistance of counsel at trial, 2) the trial court erroneously admitted prior-bad-acts evidence, 3) the trial court erred in failing to instruct the jury regarding the permitted uses of prior-bad-acts evidence, 4) the trial court erroneously calculated the sentencing guidelines, 5) the trial court failed to consider mitigating factors in imposing sentence, and 6) Petitioner’s sentence violates the Eighth Amendment. The Court will deny the petition because the claims are without merit. The Court will also deny Petitioner a certificate of appealability.
I. Facts and Procedural History
Petitioner’s convictions stem from allegations that he engaged in a long-term sexual relationship with his son.
At trial, Petitioner’s then 22-year-old son, Brandon Hayes, testified that he was essentially estranged from his father until he was 13 years old when his father moved back to Michigan from Florida. Brandon lived at his grandparents’ house with his mother, but he regularly visited Petitioner at his house.
Brandon testified that once while he was visiting his father he discovered a collection of pornographic videotapes under a television. Petitioner caught Brandon watching the tapes and masturbating, but he told him not to stop. After telling Brandon about his own sexual experiences, Petitioner told Brandon that it feels a lot better when someone else is doing it to you. Petitioner then sat on the floor in front of Brandon, masturbated him, and then performed fellatio on him.
Brandon testified that after this experience, he and his father performed oral sex on each other approximately thirty times when Brandon was between the ages of fourteen and seventeen. Brandon’s testimony described several other specific sexual encounters that involved sexual penetration with his father.
On July 17, 2009, a few years after these events, Brandon’s mother called him and asked him if Petitioner had ever put his hands on him. After first denying that anything had happened, Brandon called his mother back and told her that Petitioner had molested him as a child. This conversation took place when Brandon was twenty-one years old, and the last sexual encounter with his father occurred when he was seventeen years old.
Brandon testified that about twenty minutes after this conversation with his mother, Petitioner called Brandon and fired him from his job at the donut shop, where Petitioner was the manager. Brandon, who was angry and intoxicated, then drove over to Petitioner’s house armed with a seven-inch serrated knife. He stood outside the house and yelled for Petitioner to come out and fight, but Petitioner refused.
Petitioner’s wife, Shirley Hayes, testified that she was Brandon’s mother. She explained that she lived apart from Petitioner for most of Brandon’s childhood. When Brandon was thirteen years old, Petitioner moved into the area, and Shirley allowed him to spend time at Petitioner’s house. About two years later Shirley got back together with Petitioner and moved in with him, and they eventually married.
On July 17, 2009, Shirley heard disturbing information regarding Petitioner and Brandon from the mother of one of Brandon’s friends. She called Brandon and asked him about the information. Brandon denied that the information was true, but then he called her back and told her the information was indeed accurate. Petitioner initially denied the information was true, and he told Shirley that Brandon was angry with him. A few days later, however, Petitioner admitted to her that he had a sexual relationship with Brandon. Shirley then went to the police.
At the police station, Shirley called Petitioner and put him on the phone with a police officer, Todd Hunt. Hunt testified that Petitioner told him that he had already admitted everything he had done with Brandon to Shirley. Petitioner told Hunt that he began his sexual relationship with Brandon from the time he was fifteen years old until he was about seventeen years old. He said he would never hurt his son and that the relationship was entirely consensual.
Petitioner testified in his own defense and denied the allegations. He testified that Brandon was a very poor employee at the donut shop and that the allegations against him were made the day he was forced to fire Brandon. He explained that Shirley believed Brandon, and that everything he said and did after that, he did to appease Shirley to save their marriage. The jury rejected this explanation and found Petitioner guilty of the offenses indicated above.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following claims:
I. The defendant was unlawfully deprived of the effective assistance of trial counsel when trial counsel failed to have the defendant independently evaluated and to raise and preserve properly an insanity or temporary insanity defense.
II. The trial court unlawfully deprived the defendant of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it admitted other-acts evidence.
III. The trial court unlawfully deprived the defendant of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it failed to instruct the jury on the other-acts evidence the prosecutor had introduced.
IV. The trial court unlawfully deprived the defendant of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it scored 10 points on OV-4.
V. The trial court unlawfully deprived the defendant of his due process, equal protection, and other protected rights under the United States and Michigan Constitutions when it failed to take into account all mitigating evidence in sentencing the defendant.
VI. The trial court unlawfully violated the United States and Michigan Constitutions in sentencing the defendant to a prison term of 15-30 years on the habitual offender 2d supplement arising out of the CSC 1 convictions and to prison terms of 10 – 22 ½ years on the habitual offender 2d supplement arising out of the CSC 2 and CSC 3 convictions.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished opinion. People v. Hayes, No. 297660, 2011 WL 2858786 (Mich. Ct. App. July 19, 2011). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied the application because it was not persuaded that the ...