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Milner v. Hoffner

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

January 3, 2017

STEVEN MILNER, Petitioner,
v.
BONITA HOFFNER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Christina 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.

         Milner 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 pauperis.

         I. BACKGROUND

         Petitioner's 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.

         At 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.

         Hemphill 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.

         Hemphill 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.

         Hemphill 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.

         Hemphill 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.

         Hemphill 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.

         During 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 same reason.

         Patricia 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.

         Marks 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.

         Marks 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.

         Sgt. 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 the lineups.

         Officer 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.)

         Following 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?

         The 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).

         Petitioner 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).

         Petitioner 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.)

         Petitioner 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 ...


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