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Bullard v. Rivard

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

October 31, 2016

KEITH BULLARD, Petitioner,
v.
STEVEN RIVARD, Respondent.

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

          HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Keith Bullard, (“Petitioner”), presently confined at the Alger Maximum Correctional Facility in Munising, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second-degree criminal sexual conduct, M.C.L.A. § 750.520c(1)(A).

         Respondent filed an answer to the petition. As part of the answer, respondent asks this Court to dismiss the petition on the ground that petitioner's sixth claim, pertaining to the trial judge's utilization of factors to increase his minimum sentence that were not submitted to the jury, is unexhausted. In lieu of dismissing the petition for writ of habeas corpus, the Court will hold the petition in abeyance and will stay the proceedings under the terms outlined below in the opinion to permit petitioner to return to the state courts to exhaust the additional claim, failing which the petition shall be dismissed without prejudice. The Court will also administratively close the case.

         I. Background

         Petitioner was convicted of the above offenses following a jury trial in the Huron County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Bullard, No. 310854 (Mich. Ct. App. Jun. 19, 2013), lv. den. 840 N.W.2d 357 (Mich. 2013).

         Petitioner filed his petition for a writ of habeas corpus on June 6, 2014, in which he sought habeas relief on the following grounds:

I. In prohibiting admission of defense expert testimony, the trial court violated the rules of evidence, and the constitutional right to present a defense.
II. The trial court's improper admission of hearsay evidence of complainant's statement to Kevin Scherret and hospital staff rendered the trial unfair and violated Mr. Bullard's due process rights.
III. Conviction is based on the testimonial hearsay statements of an unavailable declarant. Violation of Sixth Amendment right to confrontation by admitting the statements and reports at the hospital.
IV. Violation of right to counsel, where there was a breakdown in the relationship with counsel, the trial judge refused request for new counsel without an adequate inquiry into the breakdown.
V. The trial court denied Appellant his constitutional due process right to a fair trial and abused its discretion by denying the motion to appoint an expert in forensic interviewing.
VI. Appellant's Sixth and Fourteenth Amendment rights were violated by judicial fact finding which increased the floor of the permissible sentence.

         II. DISCUSSION

         The petition for writ of habeas corpus is subject to dismissal because petitioner has not properly exhausted his sixth claim alleging that the trial court judge used factors that had not ...


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