United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a habeas case under 28 U.S.C. § 2254. Petitioner Manuel Sheard, IV, (Petitioner) is a state inmate at the Gus Harrison Correctional Facility in Adrian, Michigan. Petitioner is serving consecutive sentences of twenty five to fifty years following his convictions on four counts of first-degree criminal sexual conduct, in violation of M.C.L. § 750.520b. Petitioner has filed a petition for writ of habeas corpus through counsel claiming that he is incarcerated in violation of his constitutional rights. Respondent, through the Attorney General's Office, filed a response, arguing that Petitioner's claims lack merit or are procedurally defaulted. For the reasons which follow, the petition will be denied. However, a certificate of appealability will be granted on Petitioner's prosecutorial misconduct and related ineffective assistance of counsel claim.
II. Procedural History
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court. Petitioner filed an appeal of right to the Michigan Court of Appeals, which affirmed Petitioner's conviction and sentence. People v. Sheard, No. 299084 (Mich.Ct.App. October 18, 2011). Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, in which he raised the same claims that he raised in his appeal of right before the Michigan Court of Appeals. The Michigan Supreme Court denied Petitioner leave to appeal. People v. Sheard, 491 Mich. 909 (2012).
Petitioner has now filed a petition for writ of habeas corpus, presenting the following claims:
I. Petitioner was denied his due process right to a fair trial by the prosecutor's misconduct and was denied effective assistance of counsel.
II. The trial court reversibly erred in sustaining the prosecutor's objection to the statement of the complaining witness when it was admissible under the excited utterance exception to the hearsay rule.
The material facts leading to Petitioner's conviction are recited verbatim from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 10, 413 (6th Cir. 2009):
Defendant's charges arise from evidence that he sexually assaulted his daughter, who was nine at the time of his trial. She testified that the incidents began in August 2007 and continued until June 2009. She gave compelling testimony about the nature and extent of the abuse and stated that the abuse ended only after she told her aunt about it. There was also expert medical testimony that the child had injuries to her genital area including a healed scar on the perineum, which had been sutured in a previous medical visit, as well as a transection of the hymen, which had not completely healed. The physician testified that, although the transected hymen could be the result of a single penetration, it was "more of a sign of potentially repeated penetration." This is because there was "no healing of that area. It left it in two pieces that never joined together."
Defendant's theory of the case was that his daughter's physical injuries were caused by a bicycle accident and that her allegations of abuse were inconsistent and contrived.
After hearing the evidence, the jury found defendant guilty on all four counts.
People v. Sheard, No. 299084, at * 1.
A. Standard of ...