United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. Following a jury trial in the
Oakland County Circuit Court, on September 8, 2008,
Petitioner Duraid Haithem Fathi was convicted of eight counts
of first-degree criminal sexual conduct (CSC I) involving a
person under 13, Mich. Comp. Laws § 750.520b(1)(a), and
four counts of second-degree criminal sexual conduct (CSC II)
involving a person under 13, Mich. Comp. Laws §
750.520c(1)(a). On September 23, 2008, he was sentenced as a
second felony offender, Mich. Comp. Laws § 769.10, to
eight terms of 40 to 60 years on the CSC I convictions and
four terms of 14 to 22 years on the CSC II convictions.
appealed his convictions to the Michigan Court of Appeals,
raising numerous issues, including the five issues presented
in his habeas petition. In a 26-page unpublished opinion
issued July 20, 2010, the court of appeals affirmed the
convictions. Petitioner filed an application seeking leave to
appeal to the Michigan Supreme Court, raising the same
issues. In an order issued April 6, 2011, the supreme court
held the application in abeyance pending decisions in
People v. Pullen, No. 142751 (Mich.) and People
v. Watkins, No. 142031 (Mich.). Following its decision
in the consolidated Watkins-Pullen case, see
People v. Watkins, 818 N.W.2d 296 (Mich. 2012), the
Michigan Supreme Court denied Petitioner's application
for leave to appeal on September 4, 2012.
habeas petition initially filed on August 4, 2013, and
amended on September 11, 2013, Petitioner raises the
following grounds for relief:
I. MR. FATHI WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE
PROCESS UNDER THE 14th AMENDMENT TO THE UNITED STATES
CONSTITUTION IN THE FOLLOWING WAYS:
A. Mr. Fathi was not given adequate notice of the charges
against him; B. the jury instructions were fatally flawed; C.
double jeopardy; D. the attorney failed to object.
II. MR. FATHI WAS DENIED A FAIR TRIAL UNDER THE 14th
AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN “OTHER
ACTS” EVIDENCE WAS ADMITTED WHERE THERE WERE NO
CONVICTIONS FOR THOSE “OTHER ACTS” AND WHERE THE
PREJUDICIAL EFFECT OF THAT EVIDENCE CLEARLY OUT-WEIGHED THE
III. MR. FATHI WAS DENIED A FAIR TRIAL UNDER THE 14th
AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE ADMISSION
OF EXPERT WITNESS TESTIMONY FROM A PERSON WHO WAS NOT
QUALIFIED AS AN EXPERT, WHOSE TESTIMONY WAS NOT BASED ON
RELIABLE PRINCIPLES AND METHODS, AND BECAUSE THE UNDERLYING
FACTS OR DATA UPON WHICH SHE BASED HER TESTIMONY WERE NOT
DISCLOSED TO THE JURY AND WERE NOT IN EVIDENCE.
IV. MR. FATHI NEVER HAD A “CONSCIOUSNESS OF
GUILT” TO FLEE THE COUNTRY AND GIVING THE FLIGHT
INSTRUCTION WAS PLAIN ERROR UNDER THE 14th AMENDMENT TO THE
UNITED STATES CONSTITUTION.
V. MR. FATHI WAS DENIED DUE PROCESS OF LAW UNDER THE 14th
AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE
SENTENCING COURT USED A CONSTITUTIONALLY INFIRM, SWEDISH
CONVICTION IN DETERMINING THE SENTENCE.
(Am. Pet., ECF No. 4, PageID.56-57.) On March 24, 2014,
Respondent filed an answer to the amended petition (ECF No.
10), stating that the grounds should be denied because they
are procedurally defaulted, noncognizable, and/or without
merit. On March 24, 2014, Respondent also filed the
state-court record, pursuant to Rule 5, Rules Governing
§ 2254 Cases. (ECF No. 11.)Upon review and applying the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132, 110 Stat. 1214 (AEDPA) standards, the Court finds
that all habeas grounds are meritless. Accordingly, the Court
will deny the petition for failure to raise a meritorious
is incarcerated at the Thumb Correctional Facility in Lapeer,
Michigan. He is serving twelve concurrent terms of
imprisonment following his convictions on twelve separate
counts of criminal sexual conduct in three consolidated cases
in Oakland County Circuit Court. The three cases related to
Petitioner's conduct with respect to two victims. The
victims will be referenced herein as Complainant 1 and
Complainant 2. The cases are distinguished by a particular
time frame and the location where Petitioner resided when he
committed the offenses.
number 07-214-774-FC (herein the “Oak Park
case”), Petitioner was charged with five counts of
first-degree criminal sexual conduct, five separate instances
of engaging in penile/anal penetration with Complainant 1,
who was under 13 years of age. Petitioner was also charged
with two counts of fourth-degree criminal sexual conduct, two
separate instances of engaging in sexual contact with
Complainant 2, a person who was at least 13 years of age and
under 16 years of age, when Petitioner was at least five
years older than Complainant 2. The information indicated
that Petitioner had committed the offenses in the City of Oak
Park on or about April, 2000 through August, 2000. Although
not part of the information, the evidence at trial indicated
that Petitioner principally resided at a home in Oak Park,
Michigan when he committed these offenses.
number 07-214-813-FC (herein the “Pontiac case”),
Petitioner was charged with three counts of first-degree
criminal sexual conduct, three separate instances of engaging
in penile/anal penetration with Complainant 1, who was under
13 years of age. The information indicated the Petitioner had
committed the offenses in the City of Pontiac on or about May
22, 1999 through May 22, 2000. Although not part of the
information, the evidence at trial indicated that Petitioner
principally resided at an apartment/condominium in Pontiac,
Michigan when he committed these offenses.
number 02-215-223-FH (herein the “Madison Heights
case”), Petitioner was charged with four counts of
second-degree criminal sexual conduct, four separate
instances of engaging in sexual contact with Complainant 2,
who was under 13 years of age. The information indicated that
Petitioner had committed the offenses between the spring of
1997 and the summer of 1998 in the City of Madison Heights,
Michigan. Although not part of the information, the evidence
at trial indicated that Petitioner principally resided in a
home in Madison Heights, Michigan when he committed these
charges were based only on Petitioner's actions with
respect to Complainant 1 and Complainant 2. Nonetheless, the
trial court allowed three other victims to
mother of Victim C testified as well. Two police officers,
Sergeant Maureen Bergman and Sergeant Troy Taylor from the
City of Oak Park also testified regarding their investigation
of the charges. The police testimony disclosed they began
investigating Petitioner in August of 2000, following a
complaint from the mother of Victim C. (Trial Tr. II, ECF No.
11-16, PageID.1025-1026.) The police were unable to locate
Petitioner for an extended period. (Id.,
PageID.1037-1040.) He simply disappeared once Victim C's
mother attempted to look into her son's report of
Petitioner's sexual misconduct. (Id.,
jury also heard expert testimony from Amy Allen, a social
worker employed at Care House of Oakland County. Ms. Allen
had no involvement with providing services for Complainants 1
or 2 or Victims A, B, or C. She was permitted to provide
opinion testimony with regard to the dynamics of sexual abuse
and common characteristics. (Id., PageID.1092.)
Finally, the jury heard testimony from Danielle Hankinson, a
forensic scientist with the Michigan State Police Crime Lab,
regarding DNA testing of a hair found on the underwear of
Victim C. Ms. Hankinson testified that the DNA profile of the
hair matched the DNA profile of a sample known to be from
Petitioner (Id., PageID.1126-1127.)
1, victim of the five counts of first-degree CSC in the Oak
Park case and three counts of first-degree CSC charged in the
Pontiac case, testified that Petitioner had committed
first-degree penile/anal penetration against him roughly 70
times. (Trial Tr. I, ECF No. 11-14, PageID.649-651, 660.) He
described the very first time it occurred in Pontiac, when
Complainant 1 was 10-years-old, with some specificity.
(Id., PageID.638-646.) Petitioner provided the same
level of specificity with regard to the first time it
occurred in Oak Park, when Complainant 1 was 11-years-old.
(Id., PageID.654-660.) Complainant 1 also described
other facts that differentiated one assault from another
based on the different gifts Petitioner gave him afterward or
the other persons who might have been in the home at the time
of the assault. Beyond those differences, Complainant 1
described all of the assaults as occurring the same way.
2, victim of the four counts of second-degree CSC in the
Madison Heights case and the two counts of fourth-degree CSC
in the Oak Park case, testified that the first assault
occurred in Complainant 2's own home in Madison Heights.
(Id., PageID.716-721.) Complainant 2 testified that
Petitioner assaulted him similarly four times in
Petitioner's home in Madison Heights and two or three
times in Petitioner's home in Oak Park. (Id.,
PageID.722-729.) Petitioner described the first assault in
each location with specificity and testified that the other
assaults were similar in nature.
A, B and C described assaults by Petitioner, similar to those
described by Complainants 1 and 2, that occurred in Madison
Heights, Pontiac, and Oak Park.
jury returned a verdict of guilty on all fourteen counts
after deliberating for a little over an hour. (Trial Tr. III,
ECF No. 11-17.)
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
See Penry v. Johnson, 532 U.S. 782, 792 (2001). 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)
(internal quotation marks omitted).
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, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3d at 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).
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, 2015 WL
1400852, at *3 (quoting Harrington v. Richter, 562
U.S. 86, 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).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
complains that the charging documents from the three cases
failed to provide him adequate notice of the charges against
him. The Due Process Clause of the Fourteenth Amendment
mandates that whatever charging method the state employs must
give the criminal defendant fair notice of the charges
against him so as to provide him an adequate opportunity to
prepare his defense. See, e.g., In re
Ruffalo, 390 U.S. 544 (1968); Blake v. Morford,
563 F.2d 248 (6th Cir. 1977); Watson v. Jago, 558
F.2d 330, 338 (6th Cir. 1977). This requires that the offense
be described with some precision and certainty so as to
apprise the accused of the crime with which he stands
charged. Combs v. State of Tennessee, 530 F.2d 695,
698 (6th Cir. 1976). Such definiteness and certainty are
required as will enable a presumptively innocent man to
prepare for trial. Id. “Beyond notice, a
claimed deficiency in a state criminal indictment is not
cognizable on federal collateral review.” Roe v.
Baker, 316 F.3d 557, 570 (6th Cir. 2002) (quoting
Mira v. Marshall, 806 F.2d 636, 639 (6th Cir.
1986)). “An indictment which fairly but imperfectly
informs the accused of the offense for which he is to be
tried does not give rise to a constitutional issue cognizable
in habeas proceedings.” Mira, 806 F.2d at 639.
In other words, as long as “sufficient notice of the
charges is given in some . . . manner” so that the
accused may adequately prepare a defense, the Fourteenth
Amendment's Due Process Clause is satisfied. Koontz
v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984);
Watson, 558 F.2d at 338.
The Michigan Court of Appeals rejected Petitioner's claim
of inadequate notice:
The information in Case No.2007-214774-FC gave a time frame
of April 2000 through August 2000. It listed five counts of
CSC I with [Complainant 1], identified as a person under 13,
specifically “penis in anus.” It also included
two counts of CSC IV, victim between 13 and 16, in regard to
[Complainant 2]. Further, the testimony of victims
[Complainant 1] and [Complainant 2] at the preliminary
examinations provided information on location and time
frames. . . .
In Case No.2007-214813-FC, the information specified a time
frame of May 22, 1999, through May 22, 2000, and listed three
counts of CSC I in regard to [Complainant 1], victim under
13, penis in anus. . . .
In Case No.2007-215223-FH, the information specified that
counts 1 and 2 occurred in Spring/Summer 1997, and counts 3
and 4 occurred in Spring/Summer 1998. All four counts were
CSC II, person under 13, in regard to [Complainant 2]. . . .
Although the information in each case indicated only a range
of months and not specific dates, “[t]ime is not of the
essence, nor is it a material element, in criminal sexual
conduct cases involving a child victim.” And the
complainants' testimonies at the preliminary examinations
provided further information on location and time frames.
Fathi has not demonstrated how his ability to prepare a
defense was prejudiced. The defense's theory was that no
sexual contact occurred, and defense counsel argued to the
jury that the victims were not credible and their testimonies
illogical. Fathi does not indicate that he would have
presented a different defense had additional details ...