United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge.
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. On October 20, 2006, an Ottawa
County Circuit Court jury convicted Petitioner Michael Edward
Keith, Jr., of three counts of first-degree criminal sexual
conduct (victim under 13 years of age) (CSC 1), in violation
of Mich. Comp. Laws § 750.520b(1)(a). On November 20,
2006, the trial court sentenced Petitioner to 9 to 20
years' imprisonment. Petitioner appealed his convictions to
the Michigan Court of Appeals, raising three issues: (1) the
trial court's amendment of the information, after proofs
closed, to assert a penile/genital opening penetration
instead of a penile/vaginal penetration was improper (2) the
trial court improperly denied Petitioner's motion for
directed verdict, made before amendment of the information,
where there was insufficient evidence to support a conviction
based on penile/vaginal penetration, and (3) the trial court
abused its discretion in denying Petitioner's motion for
new trial. (Pet.'s Appeal Br., ECF No. 24-6, PageID.956.)
In a 4-page unpublished opinion issued July 10, 2008, the
court of appeals affirmed the convictions. (Mich. Ct. App.
Op., ECF No. 1-1, PageID.6-9.)
appellate counsel failed to provide Petitioner the appellate
court's ruling on a timely basis, but then told
Petitioner he would file an application for leave to appeal
on Petitioner's behalf in the Michigan Supreme Court.
(Pet., ECF No. 1, PageID.3.) Counsel failed to do so. On
April 16, 2010, new counsel asked the court of appeals to
reissue its opinion. (Mich. Ct. App. Docket Sheet, ECF No.
1-3, PageID.11-13) The court of appeals reissued its opinion
on May 20, 2010. (Id.) On July 15, 2010,
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court raising the first and third
issue Petitioner had raised in the court of
appeals: the trial court should not have permitted amendment
of the information after the close of proofs but should have
granted Petitioner a new trial. (Pet.'s App. for Leave to
Appeal, ECF No. 24-7, PageID.983.) The supreme court denied
leave on October 26, 2010. (Mich. Ord., ECF No. 1-2,
filed his initial habeas petition (ECF No. 1) in this Court
on January 24, 2012, the last day to timely file under 28
U.S.C. § 2244(d)(1). (Op., ECF No. 5,
PageID.102-103.) Petitioner then filed a motion for relief
from judgment under Mich. Ct. R. 6.500 et seq. in the Ottawa
County Circuit Court raising new issues, including the third
and fourth issues presented in his amended habeas petition.
(Ottawa Cty. Circuit Ct. Docket, ECF No. 24-1, PageID.331;
Pet'r's Mot. and Br., ECF No. 24-10,
PageID.1186-1232; Am. Pet., ECF No. 17, PageID.288-289.)
Petitioner then sought a stay of this action to permit him to
exhaust his remedies in the state courts. with respect to the
additional issues. (ECF No. 3.) The Court granted that
relief. (Op. and Order, ECF Nos. 5, 6.)
Ottawa County Circuit Court denied Petitioner's motion
for relief, initially on March 12, 2012 (Op. and Ord., ECF
No. 24-10, PageID.1274-1280), and upon reconsideration on
April 9, 2012 (Ord., ECF No. 24-10, PageID.1282). Petitioner
sought leave to appeal that denial in the Michigan Court of
Appeals and the Michigan Supreme Court. Those courts denied
leave on July 3, 2013, and December 23, 2013, respectively.
(Mich. Ct. App. Ord., ECF No. 24-8, PageID.1011; Mich. Ord.,
ECF No. 24-9, PageID.1122.) Petitioner then returned to this
Petitioner's amended petition he raises four issues:
I. The Defendant was denied his due process right to a fair
trial where the prosecution was permitted to make a[n] after
the fact amendment of the charges against the defendant
resulting in a deprivation of notice of the charges against
II. There was insufficient evidence for a rational jury to
convict the defendant of CSC 1.
III. Mr. Keith was denied his constitutional right [to]
effective assistance of trial counsel where counsel failed to
address repressed memory, negate prosecution experts, rebut
prejudicial testimony and preserve issues.
IV. The defendant was denied his right to effective
assistance of Appellate counsel where Appellate counsel
failed to investigate an Ineffective Assistance of Counsel
claim against trial counsel that did not properly preserve
the issues on appeal. This issue also presents good cause for
procedural defaults in the State Court.
(Am. Pet., ECF No. 17, PageID.284-289.) The first issue was
addressed in the Michigan Court of Appeals opinion affirming
the convictions. People v. Keith, No. 276081, 2008
WL 2697431 (Mich. Ct. App., July 10, 2008). A variant of the
second issue was also addressed by the court of
appeals. Id. The second issue, however, was not
raised in the Michigan Supreme Court on direct appeal, nor
was it raised in Petitioner's post-conviction motion. The
last two issues were addressed in Petitioner's motion for
relief from judgment in the Ottawa County Circuit Court.
trial began on October 18, 2006. The Judge Wesley Nykamp read
the charges to the jury at the beginning of voir dire:
The Information in this case charges the defendant, Michael
Edward Keith Jr., with the crimes of criminal sexual conduct
in the first degree.
Count Number 1 charges that Michael Edward Keith Jr. did
engage in sexual penetration, to-wit: Penile/vaginal, with
[Complainant], said person being under 13 years of age;
contrary to Michigan law.
And those alleged contacts occurred in Grand Haven Township,
Ottawa County, Michigan, between June 2003 and August of
The second count charges that he did engage in sexual
penetration, to-wit: Penile/vaginal, with [Complainant], said
person being under 13 years of age, contrary to Michigan law.
And the third count and identical language charges that
Michael Edward Keith Jr. did engage in sexual penetration,
to-wit: Penile/vaginal, with [Complainant], said person being
under 13 years of age, contrary to Michigan law.
(Oct. 18, 2006 Trial Tr., ECF No. 24-2, PageID.346-347.)
Complainant was nine years old when she testified at
Petitioner's trial. (Id., PageID.476.) The
Complainant testified that Petitioner was the babysitter for
her and her three older brothers during the summer of 2003,
when she was six years old. (Id., PageID.478.) The
Complainant described three specific instances when
Petitioner came into her bedroom, removed her clothing, and
“put his private in mine.” (Id.,
PageID.486, 492, 494.) The Complainant testified that
Petitioner assaulted her “mostly every time he came
over . . . .” (Id., PageID.495.) But, she only
recalled the three specific instances identified above. The
Complainant testified that she did not tell anyone else what
Petitioner was doing to her because he threatened to hurt her
family. (Id., 495-497.) The Complainant reported
Petitioner's actions two years later, the day after she
saw a videotape at school regarding safe touches and unsafe
touches. (Id., PageID.453, 478.)
Debra Simms testified as an expert in pediatrics and child
abuse. (Id., PageID.523-524.) Along with Nurse Julie
Mascorrro, Dr. Simms conducted a thorough examination of the
Complainant after she reported Petitioner's sexual abuse.
(Id., PageID.525-534.) Dr. Simms testified that
there was probably abuse. (Id., PageID.534-535.) Dr.
Simms testimony indicated, however, that it was unlikely that
the penetrations that the Complainant endured were vaginal;
rather, they were likely labial. (Id., PageID.535,
testified he worked as a babysitter for Complainant and her
brothers during the summer of 2003. (Oct. 19, 2006 Trial Tr.,
ECF No. 24-3, PageID.703-705.) Petitioner testified that he
never undressed the Complainant, never undressed himself in
front of her, never touched her inappropriately, never put
his penis in her vagina, never touched her body anywhere with
his penis, never put his penis in any kind of close proximity
to the Complainant, and never threatened her or her family.
(Id., PageID.716-718, 723, 725-726.)
prosecutor presented many other witnesses including Heidi
Riley, the person who presented the “safe
touches” video to the Complainant's class that
prompted the Complainant to report the assaults; Dana Darrow,
the Complainant's third grade teacher; and Thomas Hicks,
the Complainant's principal, the person to whom she
initially reported the assaults. The prosecutor also
presented testimony from Nurse Julie Muscarro; the
Complainant's three brothers (referenced here in as
Brother 1, Brother 2, and Brother 3, based on the order in
which they testified); crime scene technician Shauna
Vugteveen; the Complainant's mother, and investigating
detective Jeremy Baum. Petitioner testified and then also
presented several witnesses: Petitioner's family members;
Petitioner's friends; friends of Petitioner's family;
family of Petitioner's friends; and one of
Petitioner's teachers. Petitioner's witnesses
testified regarding Petitioner's reputation for honesty.
the close of proofs, Petitioner moved for a directed verdict.
(Oct. 20, 2006 Trial Tr., ECF No. 24-4, PageID.854.)
Petitioner argued that the Information described three acts
of penile/vaginal penetration and that, based on Dr.
Simms' testimony, there was not vaginal penetration;
there was only labial penetration. (Id.,
PageID.854-855.) The prosecutor countered that proof of any
entry, no matter how slight, sufficed to establish CSC I.
(Id., PageID.855-856.) The court sided with the
The Court finds that there is no problem with notice of the
nature of the charge that is before the Court based on the
language in the Information. The Court does believe that the
better language to have used in that charge would have been
penile/genital opening. And the Court will amend the
Information to use that language as opposed to the vaginal
language. And that amendment is based on proofs as presented
by Doctor Simms. The motion is denied.
(Id., PageID.856-857.) The jury reached a verdict
within a few hours: guilty of the three charged counts of CSC
I. (Id., PageID.917.)
November 20, 2006, the date scheduled for sentencing, the
court heard argument regarding Petitioner's motion for
new trial based, in part, on the amendment of the
Information. The court denied the motion:
The sexual penetration described in the statute is defined
as, any intrusion however slight of any part of a
person's body into the genital opening. And that statute
was charged specifically in the Information as to three
counts that were tried before the Court. So there is no
question or any surprise concerning proofs which might
suggest that the choice of the word vaginal was not the best
choice of words in describing the nature of the penetration.
However, we can also look at the commonly understood use of
that word. Websters Dictionary describes vaginal as of,
relating to or affecting the genital area. With that
understanding, the common understanding of the word vaginal,
it would not appear to be entirely out of line. We are not
asked in charging to charge in precise medical terms to the
offense which is charged.
However, after hearing the evidence the Court became
convinced, because Doctor Sim[m]s drew the line between the
penetration of the labia majora and the vagina, that perhaps
it would be clearer to the jury if it were merely stated that
there was a penetration of the genital area, and the Court
made that change.
(Nov. 20, 2006 Sentencing Tr., ECF No. 24-5, PageID.926-927.)
The court sentenced Petitioner as described above.
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).
Sufficient notice of the charges
contends that the amendment of the Information after proofs
were closed deprived him of due process. 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.
Michigan Court of Appeals resolved Petitioner's challenge
“Where the original information is sufficient to inform
a defendant of the nature of the charge against him, the
defendant is not prejudiced by an amendment to cure a defect
in the information.” People v. Newson, 173
Mich.App. 160, 164, 433 N.W.2d 386 (1988). At the time of the
offense, MCL 750.520a(o) defined “sexual
penetration” as “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however
slight, of any part of a person's body or of any object
into the genital or anal openings of another person's
body, but emission of semen is not required.” In
People v. Bristol, 115 Mich.App. 236, 237-238, 320
N.W.2d 229 (1981), this Court held that the Legislature
intended the phrases “intrusion, however slight,
” and “genital ... openings” within the
definition of “sexual penetration” to include any
intrusion between the labia majora. Therefore, even if the
prosecutor here failed to present proof of vaginal
penetration, evidence of penetration of the victim's
labia majora could satisfy the “sexual
penetration” element of CSC I. Id.
The original information sufficiently informed defendant that
the prosecutor intended to prove penetration of the
victim's genital opening. In People v.
Stricklin, 162 Mich.App. 623, 633, 413 N.W.2d 457
(1987), we upheld the defendant's CSC I conviction
despite an amendment of the information “to reflect a
variance in the type of penetration.” This Court
observed in Stricklin that the amended information
did not allege a new crime, and did not deprive the defendant
of an opportunity to defend at trial. Id. We
similarly conclude that the amendment of the instant
information to specify the precise type of sexual penetration
committed by defendant did not prejudice him.
We additionally reject defendant's claim that he would
have agreed to the addition of alternate CSC II charges if he
had known that the information would be amended. At trial,
defendant vehemently denied that he ever touched any portion
of the victim's body with his penis, and he does not
specifically explain on appeal how, if facing CSC II charges,
his trial defense would have differed. Furthermore, defendant
could have requested an instruction for CSC II, but failed to
do so. We thus conclude that the amendment did not unfairly
surprise defendant or deprive him of a sufficient opportunity
to present a defense.
Keith, 2008 WL 2697431 at *2 (footnote omitted).
does not identify how the court of appeals' resolution of
this issue is contrary to or inconsistent with clearly
established federal law. Although the state court cited state
authority in support of its analysis, the analysis is the
same: was Petitioner afforded sufficient notice to permit him
to defend himself?
offers no insight as to how he would have defended himself
differently or how his defense was prejudiced. As the
Michigan Court of Appeals reasonably found on this record,
Petitioner's defense was that his penis did not touch the
Complainant at all. There is not room for line- drawing in
Petitioner's defense. Petitioner offers no reason that a
charge that mentioned penile/vaginal penetration would not
give notice sufficient to permit him to prepare a defense to
penile/genital opening penetration. Petitioner's habeas
issue regarding insufficient notice of the charges has no
Sufficiency of the evidence
next contends that there was insufficient evidence to support
his convictions for CSC I. A § 2254 challenge to the
sufficiency of the evidence is governed by the standard set
forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 319 (1979), which is “whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” This standard of review recognizes the trier of
fact's responsibility to resolve reasonable conflicts in
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id.
Issues of credibility may not be reviewed by the habeas court
under this standard. See Herrera v. Collins, 506
U.S. 390, 401-02 (1993). Rather, the habeas court is required
to examine the evidence supporting the conviction, in the
light most favorable to the prosecution, with specific
reference to the elements of the crime as established by
state law. Jackson, 443 U.S. at 324 n.16; Allen
v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
Jackson v. Virginia standard “gives full play
to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. Moreover,
because both the Jackson standard and AEDPA apply to
Petitioner's claims, “‘the law commands
deference at two levels in this case: First, deference should
be given to the trier of fact's verdict, as contemplated
by Jackson; second, deference should be given to the Michigan
[trial court's] consideration of the trier of fact's
verdict, as dictated by AEDPA.'” Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc)
(quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th
Cir. 2008)). This standard erects “a nearly
insurmountable hurdle” for petitioners who seek habeas
relief on sufficiency of the evidence grounds. Id.
at 534 (quoting United States v. Oros, 578 F.3d 703,
710 (7th Cir. 2009)).
Michigan Court of Appeals applied the Jackson
Defendant next argues that insufficient evidence supported
his CSC I convictions because the prosecutor failed to prove
penile-vaginal penetration. We review de novo defendant's
sufficiency of the evidence claims. People v.
Hawkins, 245 Mich.App. 439, 457, 628 N.W.2d 105 (2001).
“When determining whether sufficient evidence has been
presented to sustain a conviction, a court must view the
evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found
that the essential elements of the crime were proven beyond a
reasonable doubt.” People v. Nowack, 462 Mich.
392, 399-400, 614 N.W.2d 78 (2000) (internal quotation
To establish CSC I as charged in this case, the prosecutor
had to prove “sexual penetration with another person,
” and that the other person “is under 13 years of
age.” MCL 750.520b(1)(a). Defendant does not dispute
that the victim was under 13 years of age. As we have
previously discussed, evidence of penetration of the labia
majora fulfills the “sexual penetration”
requirement of the statute. Bristol, supra at
237-238, 320 N.W.2d 229. Viewing the evidence in the light
most favorable to the prosecutor, the victim's testimony
provided the jury with sufficient evidence to conclude that
defendant sexually penetrated her. The victim repeatedly
identified defendant as her assailant, testified that
defendant “put his private in mine, ” and that
after each incident, her “private hurt.” In
addition, Dr. Simms testified that the victim
“described [the assault] as being inside, which would
mean along the inner labial lips.” Although defendant
maintains that the victim's version of events contained
inconsistencies undermining her credibility, “[t]his
Court will not interfere with the trier of fact's role of
determining the weight of the evidence or the credibility of
witnesses.” People v. Passage, 277 Mich.App.
175, 177, 743 N.W.2d 746 (2007). We conclude that the record
contains sufficient evidence to support a rational jury's
determination beyond a reasonable doubt that defendant
committed all three CSC I counts, and that the trial court
properly denied his motion for a directed verdict. People
v. Strunk, 184 Mich.App. 310, 325, 457 N.W.2d 149
Keith, 2008 WL 2697431 at *2 (footnote omitted).
Although the court of appeals relied upon the standard
identified in Nowack, 614 N.W.2d at 81, the
Nowack court relied on Jackson in support
of its statement of the sufficiency standard. Thus, it cannot
be said that the standard applied by the ...