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Keith v. Harry

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

November 16, 2016

SHIRLEE HARRY, Respondent.


          Paul L. Maloney United States District Judge.

         This is 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.[1] 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 In a 4-page unpublished opinion issued July 10, 2008, the court of appeals affirmed the convictions.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.)

         Petitioner's 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.[2] (Id.) On July 15, 2010, Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising the first and third issue[3] 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, PageID.10.)

         Petitioner 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.)[4] 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.)

         The 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 Court.

         In 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 him.
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).[5] A variant of the second issue[6] 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.

         Factual Background

         Petitioner's 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 2003.
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.)

         The 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.)

         Dr. N. 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, 538-540, 550-554.)

         Petitioner 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.)

         The 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.

         After 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 prosecutor:

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.)

         On 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.


         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. Sufficient notice of the charges

         Petitioner 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.

         The Michigan Court of Appeals resolved Petitioner's challenge as follows:

“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).

         Petitioner 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?

         Petitioner 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 merit.

         II. Sufficiency of the evidence

         Petitioner next contends that there was insufficient evidence to support his convictions for CSC I.[7] 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).

         The 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)).

         The Michigan Court of Appeals applied the Jackson standard:

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 omitted).
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 (1990).

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 ...

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