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Johnson v. Curtin

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

January 11, 2017

CINDI S. CURTIN, Respondent.


          Paul L. Maloney United States District Judge

         This is 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).[1] Petitioner began serving his state sentences on September 23, 2011.

         In his 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 clothing.
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 prosecution.

(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 In an unpublished opinion issued June 28, 2011, the court of appeals affirmed the convictions.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 VI).[2] The supreme court denied leave to appeal on December 28, 2011.

         Petitioner 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.)[3]

         Upon 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.

         Procedural and Factual Background

         The 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.

         I. Ms. Fleming's testimony

         Ms. 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. 40-41.)

         Ms. 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 invitation. (Id.)

         Petitioner 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.)

         After a 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.)

         By the 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.)

         Even 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.)

         On 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.)

         Ms. 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. (Id., 69-71.)

         On 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. (Id.)

         Around 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.)

         The next thing Ms. Fleming remembers is a blow to her face. (Id., p. 77.) She awoke to a beating at the hands of Petitioner.[4] (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.)

         Ms. 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.)

         Ms. 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. 101.)

         II. Petitioner's testimony

         Petitioner's 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, [5] 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.)

         With 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 work.[6] (Id.) He arrived at work at 7:55 a.m. (Id.)

         Although 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. 68-69.)

         Before 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.

         After a 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 ...

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