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Chevis v. Klee

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

January 4, 2017

SEVAUGHN CHEVIS, Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS [DKT. 1], (2) GRANTING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S FIRST CLAIM, AND (3) DENYING PETITIONER'S MOTION TO EXPAND RECORD AND/OR FOR AN EVIDENTIARY HEARING [DKT. 10]

          Hon. Victoria A. Roberts United States District Judge.

         This is a habeas case brought by a Michigan prisoner through counsel under 28 U.S.C. § 2254. SeVaughn Chevis (“Petitioner”) was convicted after a jury trial in the Kent Circuit Court of two counts of first-degree criminal sexual conduct. Mich. Comp. Laws § 750.520b(1)(a). Petitioner was sentenced to two concurrent terms of 10 to 40 years' imprisonment. The petition raises three claims: (1) Petitioner was denied the effective assistance of counsel for failure to consult with and present at trial an expert in forensic psychology and forensic interviewing, (2) counsel was ineffective for failing to impeach the testimony of the complainants, and (3) counsel was ineffective for failing to present evidence of Petitioner's mental impairment.

         The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will, however, grant Petitioner a certificate of appealability with respect to his first claim.[1]

         I. Background

         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which 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):

Defendant's convictions stem from allegations that he engaged in oral sexual penetration with six-year-old male twins during the summer of 2008. The mother of the twins testified that defendant lived next door to them during the time in question and that she allowed the twins to go to defendant's home to play video games with him. The twins, who were eight years old at the time of trial, testified that defendant made them engage in sexual acts with him before defendant would permit them to play video games. The twins both claimed, among other allegations, that defendant made them “suck” defendant's “private” part. One of the twins indicated that defendant “made milk” and that “milk” came out of defendant's penis. Defendant was 14 years old when the offenses were committed, and he was initially charged as a juvenile. Defendant rejected a plea offer made in the juvenile court and was subsequently charged and convicted as an adult. After sentencing, defendant filed a motion for new trial, which was denied. Thereafter, this Court granted defendant's motion to remand “for an evidentiary hearing and a determination whether defendant . . . received constitutionally-deficient representation . . . for the reason stated in defendant's motion[.]” People v. Chevis, unpublished order of the Court of Appeals, entered June 13, 2012 (Docket No. 304358). The order allowed defendant to file “a supplemental brief pertaining to the issue raised on remand.” Id. Defendant's remand motion focused primarily on defense counsel's “failure to consult with and present an expert in forensic psychology at [defendant's] trial.” The remand motion also mentioned defense counsel's failure to utilize the Michigan Forensic Interview Protocol in crossexamination of the prosecution's witnesses. Following a Ginther hearing [People v. Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973)] conducted on remand, the trial court again denied defendant's motion for new trial, rejecting the claims of ineffective assistance of counsel.

People v. Chevis, No. 304358, 2013 WL 5539279, at *1 (Mich. Ct. App. Oct. 8, 2013).

         Petitioner's appellate brief in the Michigan Court of Appeals raising the following claims:

I. The trial court erred where it found that trial counsel's (1) failure to challenge the testimony of witnesses, (2) failure to object to the admission of a victim's written statement, (3) failure to object to the testimony of Dr. Debra Simms and (4) failure to fully inform Mr. Chevis of the plea offer did not amount to ineffective assistance of counsel. Furthermore, the trial court erred where it did not address multiple instances of ineffective assistance of counsel raised and briefed by Mr. Chevis in his timely motion for new trial including trial counsel's (1) failure to adequately cross examine the State's witness regarding the use of a forensic interview protocol, (2) failure to call an expert regarding the forensic interview protocol, (3) failure to demand a ruling from the trial court regarding admission of the preliminary examination transcript in order to impeach [EM1] and [EM2], (4) failure to introduce evidence of [Chevis'] developmental deficiencies, (5) failure to correct the preliminary exam transcript prior to trial, and (6) failure to object to various testimony given by [EM1] and [EM2] without the proper foundation, all of which were grounds for reversal of his convictions.
II. Defendant was denied his rights to due process and a fair trial as a result of the prosecutor's misconduct and counsel was ineffective in failing to object to that misconduct.

         Along with his appellate brief, Petitioner filed a motion to remand for an evidentiary hearing on his claims of ineffective assistance of counsel. The motion was granted, and the trial court held a hearing on Petitioner's claims. The trial court denied relief, finding that Petitioner's claims were without merit. Dkt. 6-23. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion, with a dissenting opinion that Petitioner's first claim merited a new trial. Chevis, 2013 WL 5539279.

         Petitioner then filed an application for leave to appeal in the Michigan Supreme Court raising the following claims:

I. The majority decision in the Court of Appeals was the result of a misapplication of the law, and a broadening of the holding in People v. Smith. Regardless of whether this Court holds that the Smith and Swartz line of cases apply or the Beckley and Peterson line of cases apply, Dr. Simms' testimony under all of the cases and the relevant case law was improper and amounted to improper credibility vouching by the prosecution's expert witness. Consequently, defense counsel was ineffective for failing to object to the testimony and the trial court erred in admitting the testimony.
II. The majority in the instant case erred in its conclusion that although defense counsel was arguably ineffective in failing to consult with and present an expert in forensic interviewing/psychology, and that his failure did not prejudice the outcome of Mr. Chevis' trial.
III. The majority opinion erred where it did not find that trial counsel was ineffective where he failed to impeach the complainants or to flesh out the inconsistencies in the complainants' testimony through the testimony of other available witnesses. The majority also erred where it did not find trial counsel ineffective for failing to introduce evidence of Mr. Chevis developmental delay.

         The Michigan Supreme Court denied the application; it was not persuaded that the questions presented should be reviewed by the Court. People v. Chevis, 845 N.W.2d 100 (Mich. 2014) (table).

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An 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; 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.

         A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different result].” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is available if “the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (internal quotation marks omitted). “In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable, ' the state court's decision must have been more than incorrect or erroneous, ” but rather “must have been ‘objectively unreasonable.'” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citations omitted). Indeed, under the “unreasonable application” clause of § 2254(d)(1),

even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must 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.

White v. Woodall, 134 S.Ct. 1697, 1702; 188 L.Ed.2d 698 (2014) (citations, quotation marks, and alterations omitted). “When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, 135 S.Ct. 1372, 1376; 191 L.Ed.2d 464 (2015). “Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'” Id. (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial judge was right or wrong is not the pertinent question under AEDPA.” Renico v. Lett, 559 U.S. 766, 778 n.3 (2010). The question is whether the state court's application of federal law was “objectively unreasonable.” White, 134 ...


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