United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
V. PARKER U.S. DISTRICT JUDGE
Lewis Arthur Thompson (“Petitioner”), confined at
the Bellamy Creek Correctional Facility in Ionia, Michigan,
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner is challenging his
conviction for first-degree criminal sexual conduct in
violation of Michigan Compiled Laws § 750.520b(1)(f),
and being a fourth felony habitual offender in violation of
Michigan Compiled Laws § 769.12. For the reasons stated
below, the Courts denies the petition with prejudice.
December 2012, a jury in the Circuit Court for Kent County,
Michigan, found Petitioner guilty of the aforementioned
offenses. The Michigan appellate courts affirmed
Petitioner's convictions on direct appeal. People v.
Thompson, No. 314565, 2014 WL 1916688 (Mich. Ct. App.
May 13, 2014), lv. den. 854 N.W.2d 886 (Mich. 2014).
Court recites verbatim the relevant facts on which the
Michigan Court of Appeals relied when affirming
On January 2, 2012, the victim encountered defendant outside
of Degage Ministries in Grand Rapids. She observed that he
was intoxicated. While the victim and defendant had a
previous sexual relationship, it ended before this date but
they had remained friends.
After helping him get something to eat, the victim
accompanied defendant when he broke into an abandoned
building. In the building, defendant continued to drink, and
the victim joined him. Defendant eventually demanded sexual
intercourse, but the victim refused. He then smashed her head
against the wall, choked her, and removed her clothes. He
also covered her mouth as she screamed. Defendant then
penetrated her vagina with his penis and forced his fingers
into her anal cavity, which caused her to bleed from her
After the assault, the victim waited until defendant fell
asleep and then left the building to call the police. The
police entered the abandoned building and found defendant,
who was passed out or asleep, in the basement. When the
officers roused defendant, he still appeared intoxicated, and
the zipper of his pants was undone. There was blood on his
hand. While defendant claimed that he had cut himself, the
blood was later tested and matched the victim's DNA. The
sexual assault nurse who examined the victim testified that
she had an abrasion on her hymen, three vaginal tears, and a
labia tear. The nurse testified that these injuries were
consistent with the victim's story of the assault.
Defendant, however, testified that he had an ongoing
relationship with the victim and that on the night in
question, he digitally penetrated her vagina with her
consent. Defendant presented another witness-- Bernard
Harper-- who testified that he spoke with the victim the day
after the incident, and that she said she was going to tell
the police that the incident did not happen like she had
Thompson, 2014 WL 1916688, at *1. These facts are
presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009).
filed the present application for the writ of habeas corpus
on December 3, 2016. (ECF No. 1.) Petitioner asserts the
following grounds in support of his request for relief:
I. Defendant-Appellant is entitled to a new trial where there
was insufficient evidence to find for the conviction of first
degree criminal sexual conduct.
II. Defendant was denied the effective assistance of counsel
when trial counsel failed to request full discovery in order
to pursue the only valid defenses available to Defendant, the
issue of consent; and for failing to impeach the state's
witness, with her past criminal history and prior false
allegations of sexual assault.
III. Defendant's due process right to a fiar [sic] trial
was violated when he was denied a fair cross-section of a
jury of his peers, defense counsel was ineffective for
failing to object.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes the following standard of
review for habeas cases:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). A decision of a state court is
“contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a
state court decision unreasonably applies the law of [the
Supreme Court] to the facts of a prisoner's case.”
Id. at 409. A federal habeas court may not
“issue the writ simply because that court concludes in
its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly.” Id. at 410-11.
Supreme Court explained: “[A] federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). The “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,
' and ‘demands that state-court decisions be given
the benefit of the doubt.' ” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
“[A] state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court emphasized: “even a strong
case for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. at 102
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or, …
could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of
the Supreme Court. Id. In order to obtain habeas
relief in federal court, a state prisoner is required to show
that the state court's rejection of his claim “was
so lacking in ...