United States District Court, W.D. Michigan, Southern Division
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. Promptly after the filing of a
petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether
“it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing § 2254 Cases; see 28 U.S.C.
§ 2243. If so, the petition must be summarily dismissed.
Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th
Cir. 1970) (district court has the duty to “screen
out” petitions that lack merit on their face). A
dismissal under Rule 4 includes those petitions which raise
legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson
v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After
undertaking the review required by Rule 4, the Court
concludes that the petition must be dismissed because it
fails to raise a meritorious federal claim.
Angel Vazquez is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Muskegon Correctional
Facility in Muskegon Heights, Michigan. On August 30, 2013,
an Ingham County Circuit Court jury convicted Petitioner of
five counts of first-degree criminal sexual conduct (CSC),
Mich. Comp. Laws § 750.520b(1)(f), and one count of
second-degree CSC, Mich. Comp. Laws § 750.520c(1)(f). On
September 26, 2013, the court sentenced Petitioner as a
habitual offender-second offense, Mich. Comp. Laws §
769.10, to concurrent terms of imprisonment of 18 years, 9
months to 30 years on two counts of first-degree CSC; 14
years to 30 years on three counts of first-degree CSC; and 5
years to 22 years, 6 months on the second-degree CSC count.
appealed his convictions and sentence to the Michigan Court
of Appeals raising four issues:
I. MR. VAZQUEZ' CONVICTIONS FOR FIRST AND SECOND DEGREE
CRIMINAL SEXUAL CONDUCT MUST BE VACATED, AS THERE WAS NO
PROOF THAT HE "CAUSED" PERSONAL INJURY TO THE
II. MR. VAZQUEZ WAS DEPRIVED OF THE RIGHT TO HAVE A PROPERLY
INSTRUCTED JURY DECIDE HIS FATE AND THE RIGHT TO PRESENT A
DEFENSE; AND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO
III. MR. VAZQUEZ WAS SENTENCED ON THE BASIS OF FACTS NOT
FOUND BY JURY, IN VIOLATION OF THE SIXTH AMENDMENT.
IV. THE JUDGMENT AND THE PRESENTENCE REPORT MUST BE
CORRECTED, BECAUSE THEY INACCURATELY STATE THAT MR. VAZQUEZ
WAS CONVICTED OF COMMITTING CRIMINAL SEXUAL CONDUCT AGAINST A
PERSON UNDER AGE 13.
(Def.-Appellant's Br., ECF 1-2, PageID.29.) By per curiam
opinion issued April 28, 2015, the court of appeals affirmed
the convictions and sentences with respect to
Petitioner's first three issues; however, the court
remanded the matter for the ministerial task of correcting
the inaccuracy raised in Petitioner's fourth
filed an application for leave to appeal in the Michigan
Supreme Court, raising the first three of the four issues he
had raised in the court of appeals. (Appl. for Leave to
Appeal, ECF No. 1-3, PageID.90.) By order entered December
22, 2015, the Michigan Supreme Court denied leave to appeal.
Although the supreme court denied the application, it noted
that the court of appeals' resolution of Petitioner's
issue III, regarding sentencing, was still appropriate even
though the case the court of appeals had relied on,
People v. Herron, 845 N.W.2d 533');">845 N.W.2d 533 (Mich. App. 2013),
had been overruled in People v. Lockridge, 870
N.W.2d 502 (Mich. 2015). Petitioner did not file a petition
for certiorari in the United States Supreme Court. (Pet., ECF
No. 1, PageID.2.)
placed his habeas petition in the prison mailing system on
November 29, 2016. (Id., PageID.9.) The petition
raises the three issues that Petitioner raised in both state
appellate courts. Accordingly, the petition is timely and the
Petitioner has exhausted the remedies available in the state
Michigan Court of Appeals provided a concise statement of the
testimony at trial:
The victim was 12 years old when she met defendant, a
neighbor who was approximately 50 years old. She and her
sister would clean his house, and he would pay them $20 for
doing so. The victim testified that defendant would buy her
gifts, such as food, underwear, clothes, and an iPod.
The sexual assaults began when the victim was approximately
13 years old. She testified that defendant touched her
breasts, digitally penetrated her vagina, and penetrated her
vagina with his penis. She knew what defendant was doing was
wrong, she told him to stop, and that it hurt. However, the
victim continued to visit defendant's house daily because
she was afraid of him. She testified that defendant engaged
in sexual conduct with her almost daily, including
anal-penile penetration and oral penetration.
Eventually, when the victim approached the age of 16, she
became less fearful of defendant. By the time she was 17
years old, she stopped engaging in sexual activity with
defendant. She testified that the last sexual contact
occurred when he touched her breast, she told him no, she ran
to the bathroom, and called the police shortly thereafter.
The victim detailed the turmoil these sexual assaults created
in her life. After the first assault, the victim attempted to
commit suicide. The victim's mother tried to get her
mental health help through hospitalization and medication.
The victim's sister also explained how the victim
underwent a drastic change in behavior when she was around 13
or 14 years old. Despite her family's efforts, the victim
again attempted suicide when she was 16 years old.
The victim also explained that she failed eighth grade even
though she previously had been a good student. The
victim's mother verified that her plummeting grades and
suicide attempts occurred when the victim was visiting
defendant frequently. The victim also testified that
defendant's conduct affected her because she did not
think positively about herself. She explained that after the
assaults, she “didn't want to feel.”
Defendant confirmed that the victim would often visit his
trailer, and he gave her a key so she could look after the
trailer when he was out of town. He admitted that he had
sexual intercourse with her when she was 17, but denied
having sex with her when she was younger than 16 years old. A
jury convicted defendant of five counts of first-degree
criminal sexual conduct and one count of second-degree
criminal sexual conduct.
People v. Vazquez, No. 320175, 2015 WL 1932069 at *1
(Mich. Ct. App. Apr. 28, 2015) (footnote omitted).
Standard of review
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The
AEDPA has “drastically changed” the nature of
habeas review. Bailey v. Mitchell, 271 F.3d 652, 655
(6th Cir. 2001). An application for writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication: “(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 upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is
“intentionally difficult to meet.” Woods v.
Donald, 575 U.S. ___, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015)
(internal quotation marks omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3d at 655. In determining whether
federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Lopez v.
Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d
at 655. Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus,
the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 132 S.Ct. at 44).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘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.'” Woods, 2015 WL
1400852, at *3 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Sufficiency of the evidence
challenges the sufficiency of the evidence on only one point.
He claims there was insufficient evidence that
Petitioner's sexual assaults caused the
victim's mental anguish. A § 2254 challenge to the
sufficiency of the evidence is governed by the standard set
forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 319 (1979), which is “whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” This standard of review recognizes the trier of
fact's responsibility to resolve reasonable conflicts in
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id.
Issues of credibility may not be reviewed by the habeas court
under this standard. See Herrera v. Collins, 506
U.S. 390, 401-02 (1993). Rather, the habeas court is required
to examine the evidence supporting the conviction, in the
light most favorable to the prosecution, with specific
reference to the elements of the crime as established by
state law. Jackson, 443 U.S. at 324 n.16; Allen
v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
Jackson v. Virginia standard “gives full play
to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. Moreover,
because both the Jackson standard and AEDPA apply to
Petitioner's claims, “‘the law commands
deference at two levels in this case: First, deference should
be given to the trier-of-fact's verdict, as contemplated
by Jackson; second, deference should be given to the
Michigan [trial court's] consideration of the
trier-of-fact's verdict, as dictated by
AEDPA.'” Davis v. Lafler, 658 F.3d 525,
531 (6th Cir. 2011) (en banc) (quoting Tucker v.
Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This
standard erects “a nearly insurmountable hurdle”
for petitioners who seek habeas relief on
sufficiency-of-the-evidence grounds. Id. at 534
(quoting United States v. Oros, 578 F.3d 703, 710
(7th Cir. 2009)).
Michigan Court of Appeals applied the following standard to
Defendant first contends that the evidence was insufficient
to prove he caused personal injury to the victim, a
requirement for all of his convictions. We review de
novo a challenge to the sufficiency of the evidence.
People v. Ericksen, 288 Mich.App. 192, 195; 793
N.W.2d 120 (2010). “In determining whether the
prosecutor has presented sufficient evidence to sustain a
conviction, an appellate court is required to take the
evidence in the light most favorable to the prosecutor”
to ascertain “whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.”
People v. Tennyson, 487 Mich. 730, 735; 790 N.W.2d
354 (2010) (quotation marks and citations omitted). We
resolve conflicts of the evidence in favor of the
prosecution, “and we will not interfere with the
jury's determinations regarding the weight of the
evidence and the credibility of the witnesses.”
People v. Unger, 278 Mich.App. ...