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Mills v. Gidley

United States District Court, W.D. Michigan, Southern Division

October 7, 2016

BRIAN WAYNE MILLS, Petitioner,
v.
LORI GIDLEY, Respondent.

          OPINION

          JANET T. NEFF UNITED STATES JUDGE

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations & Procedural History

         Petitioner is incarcerated in the Central Michigan Correctional Facility. He was charged in the Berrien County with four counts of second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws § 750.520c(1)(a) (sexual contact with a person under the age of 13). The Michigan Court of Appeals provided the following summary of the evidence presented at trial:

The victim, SD, was the best friend of defendant's daughter and spent a lot of time at defendant's home in the summer of 2012. On one occasion that summer, when S.D. was between 11 and 12 years old, she stayed overnight at defendant's home. S.D. testified that she watched television with defendant and his family that evening; later, defendant's family went to bed, leaving S.D. alone with defendant in the television room.
In her initial testimony at trial, S.D. stated that defendant began to rub her foot. Defendant told her that she was pretty and that if he were in her grade, he would date her. He then moved his hand up her leg to her calf, and then to her mid-thigh. Feeling uncomfortable, S.D. got up from the couch and went into the bathroom. However, when she returned, defendant told her to sit back down. She complied, and defendant pulled her legs toward him. He again moved his hand up her leg, to the top of her thigh, and rubbed it. He then moved his hand inside her shorts and rubbed the top of her “pubic area, ” over her underwear. Defendant further moved his hand, while still inside her shorts, around to her buttocks, again over her underwear. Defendant then told S.D. to “come here, ” and he moved her onto his lap. He placed his hand underneath her shirt and rubbed her bare stomach. He then reached his hand further up SD's shirt, under the underwire of her bra, and rubbed the bottom of her breasts. S.D. demonstrated to the jury where on her body defendant had touched her. While sitting on defendant's lap, S.D. felt defendant's erect penis. The encounter ended when S.D. convinced defendant to play video games with her.
As discussed further below, S.D. was recalled for further testimony on the second day of trial. In that testimony, she clarified that she had meant “vagina” when in her earlier testimony she referenced “pubic area, ” and that defendant had touched both her inner thigh and outer thigh during the encounter.
After the events, S.D. did not immediately report the incident to anyone, but she eventually disclosed the sexual touching several months later to her teachers, who reported the incident to police.

People v. Mills, No. 319838, 2015 WL 1814067, at *1 (Mich. Ct. App. Apr. 21, 2015). The jury found Petitioner guilty as charged and he was convicted in the Berrien County Circuit Court of four counts of second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws § 750.520c(1)(a) (sexual contact with a person under the age of 13). On December 2, 2013, the trial court sentenced Petitioner to concurrent prison terms of 42 months to 15 years.

         Petitioner filed an appeal as of right raising the following four claims of error:

I. The trial judge committed reversible error and denied defendant due process in allowing the complaining witness to be recalled to testify after being excused.
II. The trial court committed reversible error in allowing the expert witness Brooke Rospierski in a dual role as an expert witness and as a fact witness regarding her own interview to testify of the complaining witness.
III. The trial court committed reversible error in amending the information to include a count of criminal sexual conduct.
IV. The trial court committed reversible error in denying the defendant's motion for a directed verdict pertaining to Count I regarding sexual touching of the inner thigh.

(Pet. ¶9(f), ECF No. 1, PageID.2.) The Michigan Court of Appeals issued an opinion affirming Petitioner's conviction on April 21, 2015. Petitioner presented the same four claims in his application for leave to appeal in the Michigan Supreme Court, which denied his application on December 9, 2015.

         Petitioner now raises the following two grounds for habeas corpus relief:

I. Petitioner was denied his due process rights under the Fourteenth Amendment where the trial court allowed the complainant to testify after being excused as a witness under circumstances that severely prejudiced [Petitioner's] right to confront the witness without being informed and/or instructed by the court as to missing testimony.
II. The U.S. Supreme Court has clearly established that a cumulative effect of trial error amounts to a due process violation where the errors render the criminal defense “far less persuasive” and had a “substantial and injurious effect or influence” on the jury's verdict.

(Pet. ¶12, PageID.5-8.)

         Standard of Review

         The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (quotation marks omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3dat 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 83, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S.____, 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted). The court may grant relief under the “unreasonable application” clause “if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular . . . case.” Williams, 529 U.S. at 407. A federal habeas court may not find a state adjudication to be “unreasonable” “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court's application of clearly established federal law is “objectively unreasonable.” Williams. 529 U.S. at 410. “ [ R ]eliefisavailable under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” White, 134 S.Ct. at 1706-07 (quoting Harrington, 562 U.S. at 103).

         Discussion

         I. Recall of Complaining Witness

         In his first ground for habeas corpus relief, Petitioner contends that his due process rights were violated when the complaining witness was permitted to testify after being excused as a witness. Petitioner argues that allowing the complainant to be recalled was particularly damaging as she had heard the testimony of other witnesses, as well as the lawyers' arguments to the trial court regarding the testimony that she was expected to provide after retaking the stand.

         The Michigan Court of Appeals rejected Petitioner's claim, stating:

Defendant first argues that the trial court erred in allowing the prosecution to recall S.D. on the second day of trial, because she had not been sequestered following her initial testimony. We disagree. We review for an abuse of discretion a trial court's decision regarding the sequestration of witnesses. People v Roberts, 292 Mich.App. 492, 502-503; 808 N.W.2d 290 (2011). Likewise, we review for an abuse of discretion a trial court's decision whether to recall a witness. See People v Williams, 470 Mich. 634, 643; 683 N.W.2d 597 (2004). An abuse of discretion occurs when the trial court “selects an outcome outside the range of reasonable and principled outcomes.” People v Waclawski, 286 Mich.App. 634, 689; 780 N.W.2d 321 (2009).
The record reflects that the trial court entered a sequestration at the outset of the trial proceedings. However, following SD's initial testimony, she was allowed to remain in the courtroom. At the end of the first day of trial, the trial court expressed concern with its preliminary instruction to the jury regarding Count IV of the information. Specifically, that instruction had indicated that defendant had allegedly touched SD's vagina, whereas SD's testimony was that defendant had touched her “pubic area.” The trial court proposed changing the wording of the final instructions. The prosecution supported the amendment and also proposed recalling S.D. to the witness stand so that she could explain what she had meant when she said “pubic area.” Defendant objected on the basis that S.D. had been allowed to remain in the courtroom following her testimony and thus had heard other witnesses' testimony and the parties' arguments regarding her initial testimony. In making this argument, defendant also noted a separate problem with SD's initial testimony: although the trial court's preliminary instruction regarding Count I alleged that defendant had touched SD's inner thigh, S.D. never testified specifically that defendant had touched her inner thigh, and, according to defendant, she did not touch her inner thigh when she was demonstrating to the jury. The trial court overruled defendant's objection and allowed S.D. to be recalled. S.D. subsequently testified that she had meant “vagina” when she said “pubic area” and that defendant had touched both her inner thigh and outer thigh during the encounter.
“The purposes of sequestering a witness are to prevent him from coloring his testimony to conform with the testimony of another, and to aid in detecting testimony that is less than candid.” People v Meconi, 277 Mich.App. 651, 654; 746 N.W.2d 881 (2008). MCL 780.761 specifically addresses a trial court's authority to sequester a victim who will be called as a witness. That statute provides:
The victim has the right to be present throughout the entire trial of the defendant, unless the victim is going to be called as a witness. If the victim is going to be called as a witness, the court may, for good cause shown, order the victim to be sequestered until the victim first testifies. ...

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