United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
DAVID M. LAWSON UNITED STATES DISTRICT JUDGE
Petitioner William Westbrook was found guilty of three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a)&(b), at a bench trial in the Wayne County, Michigan circuit court. He was sentenced to three concurrent prison terms of 25 to 37½ years, and, after finding no relief in the state appellate courts, filed the present pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Westbrook contends that (1) insufficient evidence was presented at the petitioner’s trial to show that the charged acts occurred when the complainant was under thirteen years old, (2) the trial court’s findings of fact were insufficiently specific to sustain the verdict, and (3) he was denied the effective assistance of counsel when his lawyer failed to investigate the credibility of the prosecution witnesses and did not call the petitioner’s mother as a defense witness. The Court finds that no federal constitutional violation occurred in the petitioner’s state court prosecution. Therefore, the Court will deny the petition.
The complainant testified at trial that the petitioner, her biological father, made her perform oral sex on him from the time she was eleven years old until she was thirteen years old. She was fourteen years old at the time of trial. The assaults took place in the petitioner’s bedroom and the basement of her grandmother’s house, where the petitioner lived.
The assaults occurred during visits with her father. The girl testified at trial that the petitioner would tell her to sit down and then he would put his penis in her mouth. After she did, something white would come out of his penis, and the petitioner would wipe it away with a tissue. She estimated that this happened to her about seven times. The last incident happened when she was thirteen years old in the month of February.
The complainant testified that the petitioner also attempted to have intercourse with her four times. He would put her on her stomach and would attempt to put his penis into her vagina. She also testified that he performed cunnilingus on her on two occasions. The complainant explained that she did not tell her mother about any of the incidents because she did not want her father to get into trouble.
On one occasion the complainant spoke with the petitioner on the phone while her mother, Tamiko Weatherspoon, was in the room. Weatherspoon testified that the complainant looked nervous, so she put her ear to the phone and began listening. She heard the petitioner ask the complainant if she wanted him to stop what he was doing to her. The complainant responded that she wanted him to stop. Weatherspoon heard the petitioner respond that he really missed it and loved it. Following the conversation, Weatherspoon asked her daughter what had been happening with the petitioner. At first the complainant was hesitant, but she ultimately told her about the assaults. Weatherspoon then took her daughter to the police station where she spoke to some officers. A few days later she went to a doctor for an examination, and she told the doctor what had happened.
The petitioner testified in his own defense. He denied engaging in any of the sexual activities with his daughter, and he denied Weatherspoon’s account of the telephone conversation.
The trial court found that the complainant was “a totally credible witness” and found the petitioner guilty of three counts of first-degree criminal sexual conduct. Following his conviction and sentence, the petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following issues:
I. Whether the prosecution failed to present sufficient evidence that the complainant was a person less than 13 years of age when the alleged sexual conduct occurred contrary to defendant’s constitutional right to due process.
II. Whether the trial court abused its discretion and clearly erred in failing to make specific findings of fact regarding the complainant’s age at the time of the alleged offenses and failed to apply the correct law regarding the complainant’s age.
The Michigan Court of Appeals affirmed the convictions in an unpublished opinion. People v. Westbrook, 2009 WL 3323323, at *2 (Mich. Ct. App. Oct. 15, 2009). The Michigan Supreme Court denied leave to appeal. People v. Westbrook, 486 Mich. 854, 780 N.W.2d 295 (2010).
The petitioner then filed this action, and subsequently he filed a motion to stay the case so that he could return to the state court and exhaust an ineffective assistance of counsel claim. The motion was granted, and this case was stayed and held in abeyance. The petitioner then returned to the state trial court and filed a motion for relief from judgment, arguing that trial counsel was constitutionally ineffective because he did not investigate the credibility of the state’s witnesses and call his mother to testify at trial, and appellate counsel was ineffective when he did not raise trial counsel’s ineffectiveness, and cited inappropriate legal precedent in the Michigan Supreme Court.
On May 8, 2012, the trial court issued an order denying the motion for relief from judgment, finding that the petitioner had not demonstrated that any of his attorneys had provided ineffective assistance of counsel. The petitioner then filed an application for leave to appeal in the Michigan Court of Appeals, but it was denied “for failure to establish entitlement to relief under Mich. Ct. R. 6.508(D).” People v. Westbrook, No. 310459 (Mich. Ct. App. Nov. 8, ...