United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti Mag. Judge.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS , DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
E. LEVY United States District Judge.
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. After a jury trial in Wayne County Circuit
Court, Petitioner Sedrick Mitchell was convicted of one count
of forced labor involving criminal sexual conduct, Mich.
Comp. Laws ' 750.520b(1)(f), two counts of first-degree
criminal sexual conduct, Mich. Comp. Laws '
750.520b(1)(b), one count of pandering, Mich. Comp. Laws
' 750.455, two counts of accepting earnings from a
prostitute, Mich. Comp. Laws ' 750.457, and one count of
conducting a criminal enterprise. Mich. Comp. Laws '
750.159i(1). Petitioner was sentenced as a third-time
habitual felony offender to a series of concurrent terms,
with the longest being terms of thirty-five to sixty years
for the criminal sexual conduct offenses.
the light most favorable to Petitioner, the pro se
petition appears to raise nine claims: (1) Petitioner was
denied the effective assistance of counsel at trial (Dkt. 1
at 4); (2) Petitioner's sentence constitutes cruel and
unusual punishment (id. at 14); (3) the prosecutor
violated Petitioner's due process rights by amending the
criminal information (id. at 15); (4) the trial
court erroneously instructed the jury (id. at 21);
(5) the prosecutor committed misconduct (id. at 25);
(6) the victims are not entitled to restitution (id.
at 28); (7) Petitioner's right to be free from double
jeopardy was violated by multiple convictions resulting from
a single sexual penetration (id. at 30); (8) there
was insufficient evidence presented at trial to sustain the
criminal sexual conduct convictions (id. at 10-13);
and (9) the trial court incorrectly scored the sentencing
guidelines. (Id. at 16-17.)
reasons set forth below, Petitioner's claims are denied
because they are without merit. Petitioner is also denied a
certificate of appealability and leave to proceed in
forma pauperis on appeal.
Court recites verbatim the relevant facts relied on by the
Michigan Court of Appeals, which this Court must presume are
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).
In July 2010, C. M. left the home of her grandmother because
she was over protective. C. M. learned of defendant through a
friend and contacted him. He took her to a home near Eastland
Mall and engaged in sex with her. Initially, he sent her to
live in a drug house with a 19-year old male. Then, he began
to establish prostitution customers for C. M. and another
girl named “Rosie” that occurred in homes.
However, in early August 2010, Rosie left defendant.
Defendant explained that he wanted C. M. to make more money
in light of Rosie's departure, and he took C. M. to work
on the streets at the corner of Livernois and Fenkell in the
city of Detroit. Defendant established the prices that C. M.
would charge for her services and followed her while she
worked the streets. She turned over any money she earned to
him. If C. M. complained about having to work or said
“something smart” to defendant, he would strike
her. C. M. was forced to work every day from 8:00 p.m. until
6:00 a.m., except Sundays. On Sunday, defendant gave her
money to go shopping. While she worked, defendant gave her
$10 for food.
Before meeting defendant, C. M. did not engage in
prostitution. Defendant maintained control over C. M. by
threatening to kill her or her grandmother if C. M. tried to
leave him. Defendant always had a gun with him. C. M.
observed defendant strike other people, including Rosie. On
one occasion, defendant forced C. M. to perform a sexual act
upon defendant in front of his friends by holding a gun to
her head. Ultimately, C. M. left defendant on August 25,
2010, after the two argued over C. M.'s refusal to go to
work. He threatened her with a gun, but when he turned, she
struck him with a bottle and ran. C. M. called the police
from a gas station, hid from view as the police drove her by
defendant's home, and identified defendant. However,
defendant was not apprehended at that time.
Although D. J. did not work for defendant at the same time as
C. M., her testimony was remarkably similar. Specifically, in
early November, 2010, D. J. ran away from home after being
sexually abused by a family member. D. J. agreed to go to a
party at a home near Eastland Mall where she encountered
defendant. Defendant asked D. J. how old she was, and she
said, “15.” Defendant responded, “Now,
you're 19.” He engaged in sexual intercourse with
D. J., and the next day, sent her out to work on the streets
as a prostitute with another woman named
“LaTonya.” When advised by LaTonya that they had
not earned enough money for defendant, D. J. left
defendant's residence and stayed away for several weeks.
On December 25, 2010, D. J. returned to defendant's home
after contracting a sexually transmitted disease. D. J.
needed to have a prescription filled and knew that defendant
would help her obtain the prescription. She promised
defendant that she would not leave him again, and he got the
pills that she needed. The next evening, defendant picked up
D. J. and two other girls and took them to the area of
Fenkell and Livernois to work the streets. D. J. continued to
work for defendant until she was picked up by the police and
returned to her family home. After a family dispute, she was
placed in a mental hospital for five days, but upon her
release, D. J. contacted defendant. Defendant picked her up,
she changed her clothes, and he drove her to Fenkell and
Livernois to work as a prostitute.
D. J. worked every day for defendant, starting between 7:00
and 9:00 p.m., and returning between 8:00 and 10:00 a.m. One
night, D. J. only earned $40. Defendant slapped her across
the face and told her that would not happen again. D. J.
observed defendant strike other girls, and he told the girls
that if they left, defendant would find them and kill them.
D. J. admitted that she engaged in sexual intercourse with
defendant voluntarily and even initiated sex with him.
However, one sexual assault provided the motivation for D. J.
to leave defendant permanently. Defendant attempted to anally
penetrate D. J. while he choked her, and when she resisted,
he forced vaginal penetration as he continued to choke her.
Shortly after this assault, D. J. made arrangements to have a
friend pick her up when defendant was not home.
C. M. and D. J. came to the attention of a task force
investigating child exploitation. The authorities learned of
C. M. when reviewing the August 25, 2010 police report. A
relative of D. J.'s called the authorities to report her
as missing. The information provided by these girls led to an
investigation of defendant, and the discovery that he was
identified on a social networking website as “Pimping
Defendant's theory of the case was that once the minors
came into contact with the police, they falsely accused
defendant to deflect from their own misconduct. On cross
examination, C. M. admitted that she had posted information
on the Internet that was incorrect, and D. J. admitted that
she had stolen items from her family and a threat against a
family member caused her to be sent to a mental hospital.
Although C. M. accused defendant of assault and contacted the
police, defendant was not arrested at that time, but C. M.
was detained for a matter unrelated to defendant. Despite the
attack on the credibility of the witnesses, defendant was
convicted for his role in exploiting the teenage runaways,
sexually assaulting them, forcing them to engage in
prostitution, and taking their earnings.
People v. Mitchell, No. 311605, 2014 Mich.App. LEXIS
235, at *2-7 (Mich. Ct. App. Feb. 6, 2014); (see
Dkt. 11-19 at 1-3).
Petitioner's conviction, he filed an appeal of right. His
appellate counsel filed a brief raising two claims: (1)
defendant was denied the effective assistance of counsel at
trial; and (2) the sentences imposed violated defendant's
right to be free from cruel and unusual punishments.
Mitchell, 2014 Mich.App. LEXIS 235, at *7-17.
Petitioner also filed a pro se supplemental brief
that raised what now form his third through ninth habeas
claims. Id. at *17-36. The Michigan Court of Appeals
affirmed Petitioner's convictions and sentences.
Id. at *36.
subsequently filed an application for leave to appeal to the
Michigan Supreme Court, raising most of the claims he raised
before the Michigan Court of Appeals, omitting only his
claims that the restitution order was invalid, that his right
to be free from double jeopardy was violated, and that the
sentencing guidelines were scored incorrectly. (See
Dkt 11-20.) His pro se application also added two
additional allegations of ineffective assistance of counsel.
Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed
by the Court. People v. Mitchell, 497 Mich. 902
(2014). Thus, the Michigan Court of Appeals was the last
state court to adjudicate Petitioner's claims.
the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a
federal court can order habeas relief only if the state's
adjudication of a 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, or (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). When applying these
standards, this Court is to examine the holdings of the
Supreme Court as they existed at “the time of the
relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). The Court can,
however, look to decisions of other courts to determine
whether a legal principle has been clearly established by the
Supreme Court. Hall v. Vasbinder, 563 F.3d 222, 232
(6th Cir. 2009); Smith v. Stegall, 385 F.3d 993, 998
(6th Cir. 2004).
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) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). “Section
2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal.” Id. at 103 (internal
Ineffective assistance of counsel claim
claims that he was denied his Sixth Amendment right to
effective assistance of his trial counsel. Petitioner argues
that trial counsel was constitutionally deficient because he
stipulated to the admission of a police report that contained
inculpatory information, conceded that Petitioner was guilty
of firearm and sexual conduct charges, failed to move to
adjourn the case to locate the author of the police report,
and failed to remove a biased juror. (Dkt. 1 at 4-8.)
establish a claim of ineffective assistance of counsel,
Petitioner must show that (a) “counsel's
performance was deficient, ” and (b) the
“deficient performance prejudiced the defense.”
See Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the performance element, a defendant must
point to some action “outside the wide range of
professionally competent assistance.” Id. at
690. To satisfy the prejudice element, “[t]he defendant
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
federal habeas review of a state court decision on the
merits, a court must apply a “doubly” deferential
standard of review under AEDPA. “[T]he question is not
whether counsel's actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland's deferential
standard.” Richter, 562 U.S. at 105.
Petitioner's first argument-that trial counsel was
ineffective because he stipulated to the admission of a
police report that was authored by an officer who was
unavailable to testify at trial-the Michigan Court of Appeals
rejected the claim on the merits:
The defense theory of the case was that the testimony of the
victims was not credible. To support the challenge to the
credibility of C. M., defense counsel sought to call the
officer who prepared the August 25, 2010 police report in
response to C. M.'s emergency call. However, the officer
did not appear at trial. In order to allow the trial to
continue, the prosecution and the defense stipulated to admit
the police report at trial.
Generally, police reports are inadmissible hearsay. MRE
801(c); In re Forfeiture of a Quantity of Marijuana,
291 Mich.App. 243, 254; 805 N.W.2d 217 (2011). The
stipulation to admit the police report is not a mistake
apparent on the record, and this Court cannot examine the
admission of the report with the benefit of hindsight.
[People v Dunigan, 299 Mich.App. 579, 589-590; 831
N.W.2d 243 (2013)]; [People v Payne, 285 Mich.App.
181, 188; 774 N.W.2d 714 (2009)]. Although appellate counsel
correctly notes that the police report contained information
that corroborated the testimony by the victims, the report
contained information critical to the defense. The
corroborating information in the report was that C. M.
identified defendant as a man who held her captive and forced
her to engage in sex. However, C. M. also testified that
defendant held a gun to her, and she was forced to strike him
with a bottle to leave the house. Despite this testimony, the
police report did not contain C. M.'s account of a gun or
an injury to defendant from a bottle to allow her escape.
Additionally, notwithstanding C. M.'s statements and
identification, defendant was not apprehended by the police
and charged with any crimes at that time. On the contrary, as
a result of her emergency call, C. M. was detained for a
matter unrelated to defendant's activities. Consequently,
the stipulated admission of the police report disclosed
contradictions by C. M. to the jury.
More importantly, the admission of the police report proved
beneficial to the defense because the jury acquitted
defendant of the charges related to C. M.'s departure
from defendant's home. Specifically, C. M. testified that
she argued with defendant about having to work. To obtain C.
M.'s cooperation, defendant allegedly took C. M.'s
clothes and threatened her with a gun. Defendant was charged
with three crimes arising from this argument, felonious
assault, felony-firearm, and felon in possession, but was
acquitted of all three of these offenses. The jury also
acquitted defendant of the first-degree CSC charge wherein C.
M. testified that she was forced to engage in a sexual act
with defendant in front of others at gunpoint. “A jury
has the right to disregard all or part of the testimony of a
witness.” People v Goodchild, 68 Mich.App.
226, 235; 242 N.W.2d 465 (1976). In light of the admission of
the police ...