United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
GERALD E. ROSEN, Chief District Judge.
Kevin Hardges, ("petitioner"), currently on parole with the Wayne County probation department, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by his attorney, Peter Van Hoek of the State Appellate Defender Office, petitioner challenges his conviction for using a computer for the purpose of committing third-degree criminal sexual conduct or child sexually abusive activity, M.C.L. § 750.145d(2)(f), child sexually abusive activity, M.C.L. § 750.145c(2), and using a computer for the purpose of accosting or soliciting a minor for immoral purposes, M.C.L. § 750.145d(2)(d). For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Wayne County Circuit Court. 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):
In his original brief on appeal, defendant raised claims of instructional error wherein he argued that the trial court failed to instruct the jury on essential elements of the charged offenses. After defendant filed his brief, this Court granted the prosecutor's motion to remand to correct the record. People v. Hardges, unpublished order of the Court of Appeals, entered November 19, 2010 (Docket No. 293334). Following several hearings on remand, the trial court adopted an amended transcript of the jury instructions, which included instructions on the elements of the charged offenses. The parties also agreed that in light of the errors and omissions in the jury instruction portion of the original transcript, the entire trial transcript should be re-transcribed by a different court reporter. However, other court reporters were unable to complete an official record from the original reporter's steno notes.
In a reply brief filed after the remand proceedings, defendant now agrees that the jury instructions as shown in the amended transcript confirms that the trial court correctly instructed the jury on the elements of the charged offenses, and "thus effectively eliminates the factual basis for the two issues raised in his initial Brief on Appeal." However, defendant also argues that in light of the manifest errors in the original transcript of the jury instructions, the transcript of the remainder of the trial is likely to be similarly flawed. He asserts that a complete transcript is essential to his constitutional right to appeal and his right to the assistance of counsel in that appeal.
Initially, as a procedural matter, defendant's attempt to raise this new argument in a reply brief is contrary to MCR 7.212(G), which states that "[r]eply briefs must be confined to rebuttal of the arguments in the appellee's or cross-appellee's brief[.]" Furthermore, even if defendant's argument is considered, defendant has not established entitlement to relief.
People v. Hardges, No. 293334, 2012 WL 556181, * 1 (Mich.Ct.App. Feb. 21, 2012).
Petitioner's conviction was affirmed on appeal. Id., lv. den. 493 Mich. 866, 820 N.W.2d 920 (2012).
Petitioner seeks a writ of habeas corpus on the following ground:
Petitioner was denied his constitutional right to procedural due process where the state courts refused to grant him a new trial, or a remand to the state trial court for a proceeding to settle the entire record, where the full trial and sentencing transcripts provided to petitioner for his state appeal of right were shown to be unreliable and incomplete, thus precluding him from a fair and reasonable review of his convictions and sentences in the state courts.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...