United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. On December 11, 2009, following a
jury trial in the Kent County Circuit Court, Petitioner
Darren Deon Johnson was convicted of one count of
first-degree criminal sexual conduct, Mich. Comp. Laws §
750.520b(1)(c), and one count of first-degree home invasion,
Mich. Comp. Laws § 750.110a(2). On January 21, 2010,
Petitioner was sentenced to consecutive terms of imprisonment
of: (1) 20 to 60 years on the first-degree criminal sexual
conduct conviction; and (2) 10 to 30 years on the
first-degree home invasion conviction. The trial court also
ordered that Petitioner's state sentences be served
consecutively to a federal term of imprisonment that had been
imposed following the revocation of his federal supervised
release. See United States v. Johnson, 1:04-cr-219
(W.D. Mich.) (J., ECF No. 68). Petitioner began serving his state
sentences on September 23, 2011.
pro se amended petition Petitioner raises six issues:
I. I was denied a fair and impartial trial when the trial
court didn't allow my alibi witness to appear in civilian
II. I was denied my right to effective assistance of counsel
because my trial attorney was unprepared for trial, missed
discovery deadlines, and misstated facts.
III. I was denied a fair and impartial trial when the
complaining witness perjured herself about the persons
authorized on the lease for the apartment at 1039 Bridge.
IV. I was denied a fair and impartial trial because of
prosecutorial [mis]conduct when the prosecutor knew the
complaining witness was perjuring herself.
V. I was denied a fair and impartial trial when my trial
counsel failed to introduce mitigating evidence.
VI. I was denied a fair and impartial trial when my trial
attorney failed to properly cross-examine witnesses for the
(Am. Pet., ECF No. 25, Page ID.345-353.) Petitioner raised
all six of these issues in the briefs he filed in the
Michigan Court of Appeals. (ECF No. 36, Def.-Appellant's
Br., p. i; Def.-Appellant's Standard 4 Br., p. 4 .) In an
unpublished opinion issued June 28, 2011, the court of
appeals affirmed the convictions. Petitioner sought leave to
appeal to the Michigan Supreme Court, raising the issues he
had raised in the court of appeals except for two distinct
claims. (Def.-Appellant Appeal Br., ECF No. 37, p. 2.) In his
application for leave to appeal, Petitioner did not raise the
claim that his counsel was ineffective because he misstated
facts (part of issue II) or his claim that he was denied a
fair and impartial trial when his trial attorney failed to
properly cross-examine witnesses for the prosecution (issue
supreme court denied leave to appeal on December 28, 2011.
timely filed his initial petition on March 22, 2013. He filed
his amended petition on November 20, 2013. On October 29,
2013, Respondent filed an answer to the petition, (ECF No.
22), which addressed all of the issues in the amended
petition. Respondent's answer argues that the habeas
petition should be denied because the grounds upon which it
is based are procedurally defaulted or without merit. On
November 25, 2013, Respondent filed the state-court record,
pursuant to Rule 5, Rules Governing § 2254 Cases. (ECF
Nos. 27 - 37.)
review and applying the AEDPA standards, the Court finds that
all habeas grounds are procedurally defaulted or meritless.
Accordingly, the Court will deny the petition.
and Factual Background
home that Petitioner invaded was the upstairs apartment at
1039 Bridge Street in Grand Rapids, Michigan. The apartment
was the residence of Karima Fleming, the woman that
Petitioner sexually assaulted. The crimes occurred in the
early morning hours of December 30, 2008. Petitioner's
testimony regarding his activities that morning, the evening
before, and the preceding months, differs irreconcilably from
the testimony offered by Ms. Fleming. The jury apparently
found Ms. Fleming's account to be the credible one.
Ms. Fleming's testimony
Fleming testified that she, along with her four children,
moved to Grand Rapids from Benton Harbor in March of 2008.
(Trial Tr. II, ECF No. 31, pp. 36-37.) She moved in with her
cousin, creating a household of two adults and eleven
children. (Id., p. 38.) Ms. Fleming eventually left
that residence and moved into a hotel. (Id., pp.
Fleming was introduced to Petitioner a few weeks after she
arrived in Grand Rapids. (Id. pp. 38-39.) Petitioner
invited Ms. Fleming and her children to move in with him.
(Id., p. 40). He resided in a three-bedroom home.
(Id.) Ms. Fleming accepted Petitioner's
behaved in a controlling manner in his relationship with Ms.
Fleming. (Id., pp. 41-45 .) After a time he became
verbally and physically abusive. (Id., pp. 45-46.)
In September of 2008, Ms. Fleming and her children moved out.
(Id., p. 46.) They went initially to a shelter, but
after about a week, they moved into the upper apartment at
1039 Bridge Street. (Id.)
time, Petitioner moved some of his things into the apartment
at 1039 Bridge Street. (Id., p. 49.) Ms. Fleming had the only
key to the apartment, but had a key made for Petitioner at
his request. (Id., p. 52.)
end of October, Petitioner's time at the apartment became
increasingly sporadic. (Id., p. 53.) He would be
there briefly to change clothes in between work shifts at his
two part-time jobs, but otherwise stayed out all day and
night. (Id.) Ms. Fleming asked him to leave.
(Id.) Petitioner took his things, returned his key
to the apartment, and left. (Id.)
after Petitioner moved out, he and Ms. Fleming continued to
talk. (Id., pp. 54-56.) They discussed the prospect
of renewing their relationship as well as a business
opportunity they might pursue together. (Id.)
Christmas day, as Ms. Fleming was preparing food for a family
gathering, Petitioner arrived at the apartment uninvited.
(Id., pp. 60-62.) Petitioner asked for money for the
joint business venture. (Id.) They talked for a
while. (Id.) As Petitioner got ready to leave, two
of Ms. Fleming's invited guests, including Kala Sanders,
arrived. (Id., pp. 62-63.) Petitioner was upset that
Ms. Fleming had male guests. (Id.) He demanded Ms.
Fleming dress more modestly and threatened to physically harm
Ms. Fleming and her guests. (Id.)
Fleming left the apartment to pick up her cousin and her
cousin's children. (Id., p. 67.) When she
returned, Petitioner was still there, but her other guests
had left. (Id., pp. 67-68.) Eventually Petitioner
left as well. (Id.) Later that night, Petitioner
returned. (Id., pp. 69-70.) When Ms. Fleming did not
answer Petitioner's knocks at the locked door, he kicked
the door in, ranted for a while, and then left.
December 28, Ms. Fleming drove to Benton Harbor with Kala
Sanders, for the purpose of dropping her children off with
their grandmother. (Id., pp. 72-73.) Petitioner
called her while she was driving home. (Id., p. 73.)
Upon her return to Grand Rapids, she visited with Kala and
his mother at Kala's mother's house. (Id.,
p. 74.) Petitioner continued to call her, suggesting that he
had purposely damaged her van. (Id., p. 75.) Ms.
Fleming did not answer his persistent telephone calls.
1:00 a.m. on December 30, Ms. Fleming returned to her
apartment. (Id., pp. 75-76.) She removed her
clothing, put on pajamas, and began watching a movie on the
living room couch. (Id., p. 76.)
next thing Ms. Fleming remembers is a blow to her face.
(Id., p. 77.) She awoke to a beating at the hands of
(Id., p. 80.) He instructed Ms. Fleming to remove
her clothes so they could have intercourse. (Id.,
pp. 81-82.) She refused. (Id., p. 82.) He removed
her clothing and forced her to engage in penile/vaginal
intercourse, first on her back and then again on her stomach.
(Id.) Afterwards her phone rang, it was Kala
Sanders. (Id., pp. 82-83.) Petitioner became
infuriated and began hitting Ms. Fleming again.
(Id.) When Petitioner went in the bathroom to wash
up, Ms. Fleming fled the apartment. (Id., p. 84.)
Fleming went to her cousin's home. (Id., pp.
85-86.) From there, she eventually called the police.
(Id.) She received treatment for her injuries at the
hospital and then went to the YWCA for a sexual assault
examination. (Id., pp. 88-94.)
Fleming was initially reluctant to press charges.
(Id., p. 95.) She cared about Petitioner and she was
afraid he might do it again. (Id.) He continued to
call her even after the assault. (Id., pp. 96-99.)
He again broke into her apartment. (Id., pp.
99-101.) She then decided to press charges. (Id., p.
chronology of the events is generally consistent with Ms.
Fleming's testimony: when they met, when they moved in to
Petitioner's home, when Ms. Fleming and her children
moved in to 1039 Bridge Street,  when he and Ms. Fleming “broke
up, ” when he visited on Christmas, and when she
reported the sexual assault. There were only a few key
differences. Petitioner testified that he never beat Ms.
Fleming, or hit her or threatened her. (Trial Tr. IV, ECF no.
33, p. 41.) Petitioner testified that Ms. Fleming was the
“threatening” presence in the relationship.
(Id.) Petitioner testified that Ms. Fleming
threatened to falsely accuse him of a crime if he did not
stop talking to other women. (Id., pp. 41-45,
55-57.) Petitioner's characterization of his visit(s) to
1039 Bridge Street on Christmas day was also markedly
different from Ms. Fleming's and more favorable to
Petitioner. (Id., pp. 62-64.)
respect to the night of December 29 and the following
morning, Petitioner testified that he was initially with his
girlfriend Leotie Makura at his home on Bates Street.
(Id., p. 58.) He stayed with her until she went to
bed. (Id.) Then, Petitioner slipped out, drove to a
park, met Ms. Fleming there, and had consensual sex in her
minivan. (Id., pp. 58-60.) Petitioner then returned
to Leotie, who was still sleeping. (Id., p. 60.) He
then slept at the Bates Street home with Leotie until he
awoke and showered and Leotie drove him to
(Id.) He arrived at work at 7:55 a.m. (Id.)
that was Petitioner's trial testimony, it differed
significantly from the account he had given to police. In his
first interview, Petitioner told Detective Forner he had not
had sexual intercourse with Ms. Fleming since the beginning
of December. (Id., pp. 65-66.) In a subsequent
interview on March 10, 2009, Petitioner told Detective Forner
that he had sexual intercourse with Ms. Fleming when he
visited her apartment on Christmas day. (Id., pp.
Petitioner testified, the prosecution had elicited testimony
from Sarah Thibaut and Ann Hunt, forensic scientists with the
Michigan State Police. Ms. Hunt testified that it was
overwhelmingly likely that the samples of sperm collected
from the victim's body were from Petitioner. (Trial Tr.
III, ECF No. 32, p. 103-104.) Ms. Thibaut testified that it
was very unlikely that the sample tested was five days old
when it was collected and very likely that it was much more
recently deposited. (Id., pp. 88-91.) Only after
that testimony did Petitioner offer his account regarding
consensual sexual activity with Ms. Fleming on December 29.
Monday jury selection followed by three days of testimony,
arguments and instructions, the jury began deliberating first
thing in the morning on Friday, December 11, 2009. They