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Fathi v. Hoffner

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

October 17, 2016

DURAID HAITHEM FATHI, Petitioner,
v.
BONITA HOFFNER, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is 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.

         Petitioner 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 In a 26-page unpublished opinion issued July 20, 2010, the court of appeals affirmed the convictions.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.

         In his 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 PROBATIVE VALUE.
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.)[1]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 federal claim.

         Factual Allegations

         Petitioner 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.[2] 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.

         In case 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.

         In case 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.

         In case 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 offenses.

         The 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 testify.[3] The 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., PageID.1040-1047.)

         The 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.)

         Complainant 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.

         Complainant 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.

         Victims 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.

         The 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.)

         Discussion

         This 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).

         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, 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).

         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, 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).

         The 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).

         I. Insufficient notice

         Petitioner 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 ...

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