United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
H. CLELAND UNITED STATES DISTRICT JUDGE.
Hemphill, working with the Metro Life International Church in
Detroit visited the nearby Campbell Apartments so that
children living there might participate in the church's
youth programing. She testified that when she entered the
lobby, Petitioner Steven Milner and two other men grabbed
her, punched her, and dragged her into a stairwell where she
was repeatedly raped.
was convicted after a jury trial in Wayne County Circuit
Court of three counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b, and one count of
second-degree criminal sexual conduct. Mich. Comp. Laws
§ 750.520c. He was sentenced to two terms of 22 to 80
years for the first-degree convictions and one term of 5 to
15 years for the second-degree conviction, and now brings
this petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, raising seven claims: (1) Petitioner was denied
the effective assistance of trial counsel when his trial
attorney “sabotaged all defenses to the charges,
” (2) the prosecutor committed misconduct, (3) the
sentencing guidelines were incorrectly scored, (4) Petitioner
was denied the effective assistance of appellate counsel, (5)
Petitioner was denied the effective assistance of trial
counsel when his attorney failed to object to a reference to
Petitioner's police mugshot, (6) the trial court did not
have jurisdiction to try the case because of defects in the
charging documents, and (7) the trial court did not have
jurisdiction to try the case because the district court
bind-over was not filed in the circuit court. The petition
will be denied because Petitioner's claims are without
merit. The court will also deny a certificate of
appealability, and deny leave to appeal in forma
convictions stem from allegations that he and two other men
abducted a woman in an apartment building and sexually
assaulted her. Petitioner was tried simultaneously with his
brother, Tarquinis Heard, but before separate juries. The
third assailant was never identified.
trial, Christina Hemphill testified that she worked with the
Metro Life International Church in Detroit. On the afternoon
of March 17, 2011, she went to the Campbell Apartments to
invite children living there to participate in the
church's youth programing. Hemphill testified that Heard
opened the door to let her into the lobby. Heard and two
other men, including Petitioner, then grabbed her. Petitioner
punched Hemphill in the stomach, and the men then dragged her
into a stairwell.
testified that Petitioner told her that he would, “. .
. enjoy [having sex with] one of God's wives.”
(Dkt. #11-9, Pg. ID 806.) Petitioner then pulled down her
jeans and her underwear. Petitioner put his penis into her
vagina. Hemphill screamed, and then Heard put his penis into
her mouth. A third man held her down while the other two
assaulted her. The third man pulled up her shirt and touched
her breasts. Petitioner ejaculated inside her, and Heard
ejaculated on her face. Hemphill described how she was
finally able to run away when another woman came into the
stairwell and yelled.
testified that she went to her pastor's home, who was out
of town, and she showered. Hemphill did not immediately call
the police because she wanted to forget about the incident.
Hemphill was unable to do so, and she told her pastor what
happened several days after the assault.
testified that on March 31, 2011, on the advice of her
pastor, she reported the assault to the police. She met with
a sketch artist and gave a description of the two men she
saw. She identified the sketches for the jury.
testified that she knew Petitioner's first name, Steve,
from prior visits to the Campbell Apartments. During the
afternoon of March 31, 2011, two officers came to her home
and showed her three photographic lineup sheets. She picked
Petitioner's photograph on the first sheet because it
jumped out at her as the man who raped her. She picked
Heard's photograph out on the second sheet.
testified she had seen Petitioner five or six times before
the date of the assault. He flirted with her, but she told
him she was devoted to God and ministry. She once invited
Petitioner to her church, but he never went there. On another
occasion, Petitioner helped Hemphill carry a television set.
Hemphill also had seen Heard at the apartment building four
to six times before the assault.
cross examination, Hemphill testified that she did not think
about the fact that she was destroying physical evidence when
she took a shower. She explained that she was trying to block
the assault out of her mind. She washed her clothing for the
Marks testified that she was the assistant pastor at Metro
Life International Church. Hemphill was her assistant. Marks
testified that since the date of the incident Hemphill
changed from being a confident and strong person, to being
fearful, scared, and easily given to tears. Marks testified
that she could tell something was wrong with Hemphill from
text messages she received on the date of the incident. Marks
also received text messages from other church members
worrying about Hemphill.
testified that Hemphill was upset when she met with her on
March 21, 2011. Finally, on on March 31, 2011, Marks and a
police officer who was a deacon at the church convinced
Hemphill to report the assault.
had gone with Hemphill to the Campbell Apartments on two
prior occasions. She stated that they encountered three men
in the lobby. She said that the men stopped them and asked
why they were there. Marks said that the men teased them. She
said that one of the men referred to Hemphill as his future
wife. Marks, however, could not identify either Petitioner or
Heard as the men in question.
Bernadette Dunbeck of the Detroit Police Department testified
that on March 31, 2011, she was given physical descriptions
of the suspects in this case. She took a statement from Marks
that afternoon, who also provided identification information
to her. Dunbeck looked through old police reports for the
Campbell Apartments and found one from March 29, 2011, that
reported that both of the defendants were arrested there that
day. Dunbeck testified that she obtained the defendants'
mugshots, and she put together the photographic lineups shown
to the complainant. Hemphill identified both defendants from
Robert Kane testified that he visited Hemphill at her home on
March 31, 2011, and showed her two photographic lineups. Kane
used a mugshot of Petitioner from a prior arrest in the array
of photos. Hemphill picked Petitioner out immediately. Kane
showed her the second lineup, and she picked Heard out
immediately as well. Kane testified that when Hemphill picked
Petitioner's photograph, she indicated, “He put his
penis in my vagina.” (Dkt. #11-9, Pg. ID 908.) Hemphill
wrote, “when I screamed, he put his penis in my mouth,
” on the sheet containing Heard's photograph.
(Id., Pg. ID 909.)
his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His appellate brief
raised the following claims:
I. Was the Defendant-Appellant denied the effective
assistance of counsel at trial where counsel failed to object
to police testimony that the photographic lineup shown to the
complainant included the Defendant-Appellant's mugshot
for an arrest made two days prior to the date of the lineup?
II. Did the insufficient evidence presented during the
Defendant-Appellant's trial on the element of identity,
to support the jury's verdicts of guilty beyond a
reasonable doubt of three counts of first-degree criminal
sexual conduct (CSC) and one count of second degree CSC,
constitute a denial of the due process of law guaranteed by
the Fifth Amendment to the United States Constitution?
III. Do the Defendant-Appellant's three concurrent
sentences of from twenty-two years to eighty years, imposed
pursuant to his convictions for three counts of first-degree
CSC, constitute a violation of the guarantee against cruel
and unusual punishment provided by the United States
Constitution and the guarantee against cruel or unusual
punishment provided by the Michigan Constitution?
Michigan Court of Appeals affirmed Petitioner's
convictions and sentence in an unpublished per
curiam opinion. People v. Milner, No. 306593,
2013 WL 968100, at *1-3 (Mich. Ct. App. Feb. 21, 2013).
Petitioner then filed an application for leave to appeal in
the Michigan Supreme Court, raising the same claims. The
Court denied the application because it was not persuaded
that the questions presented should be reviewed. People
v. Milner, No. 146919, 494 Mich. 871, 832 N.W.2d 221
(Mich. 2013) (table).
then filed a petition for writ of habeas corpus in this
court, and he simultaneously filed a motion to stay his
petition and hold it in abeyance so he could exhaust further
claims in the state courts. The court denied the motion to
stay, and Petitioner then successfully moved to dismiss the
petition without prejudice. See Milner v. Hoffner,
No. 14-12329 (E.D. Mich. July 18, 2014).
returned to the trial court and filed a motion for relief
from judgment, raising what now form his first through fourth
habeas claims. The trial court denied the first three claims
under Michigan Court Rule 6.508(D)(2), finding that the
claims were barred from review because they had been raised
on direct appeal. (Dkt. #11-17, Pg. ID 1385-86.) Respondent
concedes that the state court's reliance on this rule was
mistaken. (Dkt. #10, Pg. ID 208-09.)
then filed an application for leave to appeal in the Michigan
Court of Appeals, but the state court again denied relief
under Rule 6.508(D)(2). People v. Milner, No. 325571
(Mich. Ct. App. March 12, 2015). Petitioner sought leave to
appeal in the Michigan Supreme Court, raising the same claims
along with what now form Petitioner's sixth and seventh
claims. The ...